[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                    48


          Chapters 15 to 28

                         Revised as of October 1, 2003

Federal Acquisition Regulations System





          Containing a codification of documents of general 
          applicability and future effect
          As of October 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
  Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area 
                              (202) 512-1800
      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 48:
          Chapter 15--Environmental Protection Agency                3
          Chapter 16--Office of Personnel Management Federal 
          Employees Health Benefits Acquisition Regulation         115
          Chapter 17--Office of Personnel Management               169
          Chapter 18--National Aeronautics and Space 
          Administration                                           173
          Chapter 19--Broadcasting Board of Governors              493
          Chapter 20--Nuclear Regulatory Commission                505
          Chapter 21--Office of Personnel Management, Federal 
          Employees Group Life Insurance Federal Acquisition 
          Regulation                                               557
          Chapter 23--Social Security Administration               591
          Chapter 24--Department of Housing and Urban 
          Development                                              595
          Chapter 25--National Science Foundation                  637
          Chapter 28--Department of Justice                        647
  Finding Aids:
      Table of CFR Titles and Chapters........................     689
      Alphabetical List of Agencies Appearing in the CFR......     707
      List of CFR Sections Affected...........................     717



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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  48 CFR 1501.000 
                       refers to title 48, part 
                       1501, section 000.

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

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2003), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2003.



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                               THIS TITLE

    Title 48--Federal Acquisition Regulations System is composed of 
eight volumes. The chapters in these volumes are arranged as follows: 
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and 
chapter 29 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2003.

    The Federal acquisition regulations in chapter 1 are those 
government-wide acquisition regulations jointly issued by the General 
Services Administration, the Department of Defense, and the National 
Aeronautics and Space Administration. Chapters 2 through 99 are 
acquisition regulations issued by individual government agencies. Parts 
1 to 69 in each of chapters 2 through 99 are reserved for agency 
regulations implementing the Federal acquisition regulations in chapter 
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 
through 99 contain agency regulations supplementing the Federal 
acquisition regulations.

    The OMB control numbers for the Federal Acquisition Regulations 
System appear in section 1.106 of chapter 1. For the convenience of the 
user section 1.106 is reprinted in the Finding Aids section of the 
second volume containing chapter 1 (parts 52 to 99).

    The first volume, containing chapter 1 (parts 1 to 51), includes an 
index to the Federal acquisition regulations.

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            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM




                 (This book contains chapters 15 to 28)

  --------------------------------------------------------------------
                                                                    Part

chapter 15--Environmental Protection Agency.................        1501

chapter 16--Office of Personnel Management Federal Employees 
  Health Benefits Acquisition Regulation....................        1601

chapter 17--Office of Personnel Management..................        1733

chapter 18--National Aeronautics and Space Administration...        1801

chapter 19--United States Information Agency................        1901

chapter 20--Nuclear Regulatory Commission...................        2001

chapter 21--Office of Personnel Management, Federal 
  Employees Group Life Insurance Federal Acquisition 
  Regulation................................................        2101

chapter 23--Social Security Administration..................        2301

chapter 24--Department of Housing and Urban Development.....        2401

chapter 25--National Science Foundation.....................        2501

chapter 28--Department of Justice...........................        2801

[[Page 3]]



               CHAPTER 15--ENVIRONMENTAL PROTECTION AGENCY




                          (Parts 1500 to 1599)

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


  Editorial Note: Nomenclature changes to chapter 15 appear at 65 FR 
47325, Aug. 2, 2000.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1501            General.....................................           5
1502            Definition of words and terms...............           8
1503            Improper business practices and personal 
                    conflicts of interest...................           8
1504            Administrative matters......................          11
                   SUBCHAPTER B--ACQUISITION PLANNING
1505            Publicizing contract actions................          13
1506            Competition requirements....................          13
1508            Required sources of supply..................          14
1509            Debarment, suspension, and ineligibility....          15
1511            Describing agency needs.....................          21
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1513            Simplified acquisition procedures...........          23
1514            Sealed bidding..............................          23
1515            Contracting by negotiation..................          24
1516            Types of contracts..........................          31
1517            Special contracting methods.................          38
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1519            Small business programs.....................          39
1520            Labor surplus area concerns.................          42
1522            Application of labor laws to government 
                    acquisitions............................          42
1523            Environmental, conservation, occupational 
                    safety, and drug-free workplace.........          43
1524            Protection of privacy and freedom of 
                    information.............................          44

[[Page 4]]

1525            Foreign acquisition.........................          45
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1527            Patents, data, and copyrights...............          46
1528            Insurance...................................          46
1529            Taxes.......................................          46
1530            Cost accounting standards...................          47
1531            Contract cost principles and procedures.....          47
1532            Contract financing..........................          47
1533            Protests, disputes and appeals..............          48
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1535            Research and development contracting........          50
1536            Construction and architect-engineer 
                    contracts...............................          51
1537            Service contracting.........................          53
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1542            Contract administration.....................          54
1545            Government property.........................          55
1546            Quality assurance...........................          56
1548

Value engineering [Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
1552            Solicitation provisions and contract clauses          57
1553            Forms.......................................         113
                Appendix I to chapter 15....................         114

[[Page 5]]



                          SUBCHAPTER A--GENERAL



PART 1501--GENERAL--Table of Contents




Sec.
1501.000 Scope of part.

              Subpart 1501.1--Purpose, Authority, Issuance

1501.101 Purpose.
1501.104 Applicability.
1501.105 Issuance.
1501.105-1 Publication and code arrangement.
1501.105-2 Arrangement of regulations.
1501.105-3 Copies.

             Subpart 1501.3--Agency Acquisition Regulations

1501.301 Policy.
1501.370 OMB approvals under the Paperwork Reduction Act.

                       Subpart 1501.4--Deviations

1501.401 Definition.
1501.403 Individual deviations.
1501.404 Class deviations

       Subpart 1501.6--Contracting Authority and Responsibilities

1501.602-3 Ratification of unauthorized commitments.
1501.603 Selection, appointment, and termination of appointment.
1501.603-1 General.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8835, Mar. 8, 1984, unless otherwise noted.



1501.000  Scope of part.

    The Federal Acquisition Regulation System brings together, in title 
48 of the Code of Federal Regulations, the acquisition regulations 
applicable to all executive agencies of the Government. This part 
establishes a system of Environmental Protection Agency (EPA) 
acquisition regulations, referred to as the EPAAR, for the codification 
and publication of policies and procedures of EPA which implement and 
supplement the Federal Acquisition Regulation (FAR).



              Subpart 1501.1--Purpose, Authority, Issuance



1501.101  Purpose.

    This subpart establishes Chapter 15, the Environmental Protection 
Agency Acquisition Regulation (EPAAR), within Title 48, the Federal 
Acquisition Regulations System.

[60 FR 38505, July 27, 1995]



1501.104  Applicability.

    The FAR (48 CFR chapter 1) and the EPAAR (48 CFR chapter 15) apply 
to all EPA acquisitions as defined in part 2 of the FAR, except where 
expressly excluded.

[62 FR 33572, June 20, 1997]



1501.105  Issuance.



1501.105-1  Publication and code arrangement.

    The EPAAR will be published in: (a) The Federal Register, (b) 
cumulated form in the Code of Federal Regulations (CFR), and (c) a 
separate loose-leaf form in a distinctive light blue color.

[49 FR 8835, Mar. 8, 1984. Redesignated at 62 FR 33572, June 20, 1997]



1501.105-2  Arrangement of regulations.

    (a) References and citations. This regulation may be referred to as 
the Environmental Protection Agency Acquisition Regulation or the EPAAR. 
References to EPAAR materials shall be made in a manner similar to that 
prescribed by FAR 1.105-2(c).

[49 FR 8835, Mar. 8, 1984. Redesignated and amended at 62 FR 33572, June 
20, 1997]



1501.105-3  Copies.

    Copies of the EPAAR in Federal Register and CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office (GPO), Washington, DC 20402. Copies of loose-leaf EPAAR are 
distributed within EPA and may be obtained from

[[Page 6]]

the EPA Facilities and Support Services Division.

[49 FR 8835, Mar. 8, 1984. Redesignated at 62 FR 33572, June 20, 1997]



             Subpart 1503.3--Agency Acquisition Regulations



1501.301  Policy.

    The EPAAR is prescribed by the Director, Office of Acquisition 
Management.

[49 FR 8835, Mar. 8, 1984, as amended at 59 FR 18976, Apr. 21, 1994]



Sec. 1501.370  OMB approvals under the Paperwork Reduction Act.

    The information collection activities contained in the EPAAR 
sections listed below have been approved by the Office of Management and 
Budget (OMB) and have been issued OMB numbers in accordance with section 
3504(h) of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501, et seq.

------------------------------------------------------------------------
                                                             OMB control
                      48 CFR citation                            No.
------------------------------------------------------------------------
  Specification, Standards and other Purchase Descriptions
 
1510.011-70 through 1510.011-72............................    2030-0005
1510.011-80 through 1510.011-81............................    2030-0023
Contract delivery or performance 1512.104..................    2030-0023
 
  Small Purchase and Other Simplified Purchase Procedures
 
1513.505 through 1513.570..................................    2030-0007
 
                     Contract Financing
 
1532.170(a)................................................    2030-0016
 
        Solicitation Provisions and Contract Clauses
 
1552.209-71................................................    2030-0023
1552.209-73 through 1552.209-74............................    2030-0023
1552.210-72................................................    2030-0005
1552.210-80................................................    2030-0023
1552.212-71................................................    2030-0023
1552.215-72 through 1552.215-76............................    2030-0006
1552.227-76................................................    2030-0023
------------------------------------------------------------------------


[59 FR 18619, Apr. 19, 1994, as amended at 59 FR 32134, June 22, 1994; 
61 FR 29316, June 10, 1996]



                       Subpart 1501.4--Deviations



1501.401  Definition.

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

[49 FR 8835, Mar. 9, 1984; 49 FR 24734, June 15, 1984]



1501.403  Individual deviations.

    Requests for individual deviations from the FAR and the EPAAR shall 
be submitted to the Head of the Contracting Activity (HCA) for approval. 
Requests submitted shall cite the specific part of the FAR or EPAAR 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.

[65 FR 37291, June 14, 2000]



1501.404  Class deviations.

    Requests for class deviations to the FAR and the EPAAR shall be 
submitted to the HCA for processing in accordance with FAR 1.404 and 
this section. Requests shall include the same type of information 
prescribed in 1501.403 for individual deviations.

[67 FR 5072, Feb. 4, 2002]



       Subpart 1501.6--Contracting Authority and Responsibilities



1501.602-3  Ratification of unauthorized commitments.

    (a) Applicability. The provisions of this section apply to all 
unauthorized commitments, whether oral or written and without regard to 
dollar value. Examples of unauthorized commitments are;
    (1) Ordering supplies or services by an individual without 
contracting authority;
    (2) Unauthorized direction of work through assignment of orders or 
tasks;
    (3) Unauthorized addition of new work;
    (4) Unauthorized direction of contractors to subcontract with 
particular firms; or
    (5) Any other unauthorized direction which changed the terms and 
conditions of the contract.
    (b)(1) Ratification Approval. The Chief of the Contracting Office 
(CCO) is delegated authority to be the ratifying official. In order to 
act as the ratifying official, a CCO must have delegated contracting 
officer authority. A CCO cannot approve a ratification if he/she acted 
as a contracting officer in preparing the determination and findings

[[Page 7]]

required under paragraph (c)(3) of this section.
    (2) The CCOs defined in 1502.100 for purposes of ratification 
authority only must meet the following criteria:
    (i) Must possess a contracting officer's warrant and be in the 1102 
job series;
    (ii) Are prohibited from re-delegating their ratification authority;
    (iii) Must submit copies of ratification actions to the cognizant 
Office of Acquisition Management Division Director at Headquarters; and
    (iv) As with other ratifying officials, must abide by the other 
limitations on ratification of unauthorized commitments set forth in FAR 
1.602-3(c) and the EPAAR.
    (c) Procedures. (1) The program office shall notify the cognizant 
contracting office by memorandum of the circumstances surrounding an 
unauthorized commitment. The notification shall include:
    (i) All relevant documents and records;
    (ii) Documentation of the necessity for the work and benefit derived 
by the Government;
    (iii) A statement of the delivery status of the supplies or services 
associated with the unauthorized commitment;
    (iv) A list of the procurement sources solicited (if any) and the 
rationale for the source selected;
    (v) If only one source was solicited, a justification for other than 
full and open competition (JOFOC) as required by FAR 6.302, FAR 6.303, 
and 1506.303, or for simplified acquisition procedures exceeding the 
competition threshold in FAR 13.106, a sole source justification as 
required by 1513.170;
    (vi) A statement of steps taken or proposed to prevent reoccurrence 
of any unauthorized commitment.
    (2) The Division Director (or equivalent) of the responsible office 
shall approve the memorandum. If expenditure of funds is involved, the 
program office shall include a Procurement Request/Order, EPA Form 1900-
8, with funding sufficient to cover the action. The appropriation data 
cited on the 1900-8 shall be valid for the period in which the 
unauthorized commitment was made.
    (3) Upon receiving the notification, the Contracting Officer shall 
prepare a determination and findings regarding ratification of the 
unauthorized commitment for the ratifying official. The determination 
and findings shall include sufficient detail to support the recommended 
action. If ratification of the unauthorized commitment is recommended, 
the determination and findings shall include a determination that the 
price is fair and reasonable. To document the determination, additional 
information may be required from the Contractor. Concurrence by the 
Office of General Counsel is not mandatory, but shall be sought in 
difficult or unusual cases.
    (4) The ratifying official may inform the Inspector General (IG) of 
the action by memorandum through the Head of the Contracting Activity 
(HCA). For ratification actions exceeding the small purchase limitation, 
the ratifying official shall submit a memorandum to the Assistant 
Administrator for Administration and Resources Management through the 
HCA for transmittal to the Assistant, Associate, or Regional 
Administrator (or equivalent level) of the person responsible for the 
unauthorized commitment. This memorandum should contain a brief 
description of the circumstances surrounding the unauthorized 
commitment, recommend corrective action, and include a copy of any 
memorandum sent to the IG. Submission of a memorandum to the appropriate 
Assistant, Associate, or Regional Administrator for unauthorized 
commitments at or below the small purchase limitation is optional and 
may be accomplished at the discretion of the ratifying official.
    (d) Paid Advertisements. (1) EPA is generally not authorized to 
ratify improperly ordered paid advertisements. The ratifying official, 
however, may determine payment is proper subject to the limitations in 
FAR 1.602-3(c) if the individual responsible for the unauthorized 
commitment acted in good faith to comply with Agency acquisition 
policies and procedures.
    (2) The paying office shall forward invoice claims received in its 
office for improper paid advertisements to the

[[Page 8]]

cognizant ratifying official for a determination regarding ratification 
of the action.
    (3) If the ratifying official determines that an unauthorized 
commitment cannot be ratified by the Agency, the ratifying official 
shall instruct the submitter to present its claim to the General 
Accounting Office in accordance with the instructions contained in 4 CFR 
part 31, Claims Against the United States, General Procedures.
    (e) Payment of Properly Ratified Claims. After the unauthorized 
commitment is ratified, the Contractor must submit an invoice (or 
resubmit an invoice if one was previously submitted) citing the 
appropriate contract or purchase order number.

[55 FR 18340, May 2, 1990, as amended at 59 FR 18976, Apr. 21, 1994; 60 
FR 38505, July 27, 1995; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 
20, 1997; 65 FR 37291, June 14, 2000; 65 FR 80792, Dec. 22, 2000; 67 FR 
5072, Feb. 4, 2002]



1501.603  Selection, appointment, and termination of appointment.



1501.603-1  General.

    EPA Contracting Officers shall be selected and appointed and their 
appointments terminated in accordance with the Contracting Officer 
warrant program specified in chapter 8 of the EPA ``Contracts Management 
Manual.''



PART 1502--DEFINITION OF WORDS AND TERMS--Table of Contents




    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.



                       Subpart 1502.1--Definitions



1502.100  Definitions.

    Chief of the Contracting Office (CCO) means the Office of 
Acquisition Management Division Directors at Headquarters, Research 
Triangle Park and Cincinnati. For purposes of ratification authority 
only, CCO is also defined as Regional Contracting Officer Supervisors 
and Office of Acquisition Management Service Center Managers. (See 
1501.602-3(b)(2) for the criteria for this ratification authority).
    Head of the Contracting Activity (HCA) means the Director, Office of 
Acquisition Management.
    Senior Procurement Executive (SPE) means the Director, Office of 
Acquisition Management.

[67 FR 5072, Feb. 4, 2002]



PART 1503--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents




Sec.
1503.000 Scope of part.

                       Subpart 1503.1--Safeguards

1503.101-370 Personal conflicts of interest.
1503.104-5 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

Subpart 1503.2--Contractor Gratuities to Government Personnel [Reserved]

Subpart 1503.3--Reports of Suspected Antitrust Violations [Reserved]

                     Subpart 1503.4--Contingent Fees

1503.408 Evaluation of the SF 119.

  Subpart 1503.5--Contractor Responsibility to Avoid Improper Business 
                                Practices

1503.500-70 Policy.
1503.500-71 Procedures.
1503.500-72 Contract clause.

  Subpart 1503.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them

1503.600-70 Scope of subpart.
1503.600-71 Definitions.
1503.601 Policy.
1503.602 Exceptions.
1503.670 Solicitation disclosure provision.

   Subpart 1503.9--Whistle Blower Protections for Contractor Employees

1503.905 Procedures for investigating complaints.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8837, Mar. 8, 1984, unless otherwise noted.



1503.000  Scope of part.

    This part implements FAR part 3, cites EPA regulations on employee 
responsibilities and conduct, establishes

[[Page 9]]

responsibility for reporting violations and related actions, and 
provides for authorization of exceptions to policy.



                       Subpart 1503.1--Safeguards

    Source: 64 FR 47410, Aug. 31, 1999, unless otherwise noted.



1503.101-370  Personal conflicts of interest.

    (a) Each EPA employee (including special employees) engaged in 
source evaluation and selection is required to be familiar with the 
provisions of 40 CFR part 3 regarding personal conflicts of interest. 
The employee shall inform the Source Selection Authority (SSA) in 
writing if his/her participation in the source evaluation and selection 
process could be interpreted as a possible or apparent conflict of 
interest. The SSA will consult with appropriate Agency officials prior 
to the SSA's determination. The SSA shall relieve any EPA employee who 
has a conflict of interest of further duties in connection with the 
evaluation and selection process.
    (b) Each EPA employee (including special employees, as defined by 
1503.600-71(b)) involved in source evaluation and selection is required 
to comply with the Office of Government Ethics ethics provisions at 5 
CFR part 2635.



1503.104-5  Disclosure, protection, and marking of contractor bid or proposal information and source selection information.

    (a)(1) The Chief of the Contracting Office (CCO) is the designated 
official to make the decision whether support contractors are used in 
proposal evaluation (as authorized at FAR 15.305(c) and as restricted at 
FAR 37.203(d)).
    (2) The following written certification and agreement shall be 
obtained from the non-Government evaluator prior to the release of any 
proposal to that evaluator:

        ``Certification on the Use and Disclosure of Proposals''

RFP :__________________________________________________________
Offeror:________________________________________________________________
    1. I hereby certify that to the best of my knowledge and belief, no 
conflict of interest exists that may diminish my capacity to perform an 
impartial, technically sound, objective review of this proposal(s) or 
otherwise result in a biased opinion or unfair competitive advantage.
    2. I agree to use any proposal information only for evaluation 
purposes. I agree not to copy any information from the proposal(s), to 
use my best effort to safeguard such information physically, and not to 
disclose the contents of nor release any information relating to the 
proposal(s) to anyone outside of the evaluation team assembled for this 
acquisition or individuals designated by the contracting officer.
    3. I agree to return to the Government all copies of proposals, as 
well as any abstracts, upon completion of the evaluation.

________________________________________________________________________
Name and Organization)

________________________________________________________________________
(Date of Execution)

                          (End of Certificate)

    (b) Information contained in proposals will be protected and 
disclosed to the extent permitted by law, and in accordance with FAR 
3.104-5, 15.207, and Agency procedures at 40 CFR part 2.

Subpart 1503.2--Contractor Gratuities to Government Personnel [Reserved]

Subpart 1503.3--Reports of Suspected Antitrust Violations [Reserved]



                     Subpart 1503.4--Contingent Fees



1503.408  Evaluation of the SF 119.



  Subpart 1503.5--Contractor Responsibility to Avoid Improper Business 
                                Practices

    Source: 65 FR 57103, Sept. 21, 2000, unless otherwise noted.



1503.500-70  Policy.

    Government contractors must conduct themselves with the highest 
degree of integrity and honesty. Contractors should have standards of 
conduct and internal control systems that:
    (a) Are suitable to the size of the company and the extent of their 
involvement in Government contracting.
    (b) Promote such standards.

[[Page 10]]

    (c) Facilitate timely discovery and disclosure of improper conduct 
in connection with Government contracts, and
    (d) Ensure corrective measures are promptly instituted and carried 
out.



1503.500-71  Procedures.

    (a) A contractor's system of management controls should provide for:
    (1) A written code of business ethics and conduct and an ethics 
training program for all employees;
    (2) Periodic reviews of company business practices, procedures, 
policies and internal controls for compliance with standards of conduct 
and the special requirements of Government contracting;
    (3) A mechanism, such as a hotline, by which employees may support 
suspected instances of improper conduct, and instructions that encourage 
employees to make such reports;
    (4) Internal and/or external audits, as appropriate.
    (5) Disciplinary action for improper conduct;
    (6) Timely reporting to appropriate Government officials of any 
suspected or possible violation of law in connection with Government 
contracts or any other irregularities in connection with such contracts; 
and
    (7) Full cooperation with any Government agencies responsible for 
either investigation or corrective actions.
    (b) Contractors who are awarded an EPA contract of $1 million or 
more must display EPA Office of Inspector General Hotline Posters unless 
the contractor has established an internal reporting mechanism and 
program, as described in paragraph (a) of this section.



1503.500-72  Contract clause.

    As required by EPAAR 1503.500-71(b), the contracting officer shall 
insert the clause at 1552.203-71, Display of EPA Office of Inspector 
General Hotline Poster, in all contracts valued at $1,000,000 or more, 
including all contract options.



  Subpart 1503.6--Contracts with Government Employees or Organizations 
                       Owned or Controlled by Them



1503.600-70  Scope of subpart.

    This subpart implements and supplements FAR subpart 3.6 and sets 
forth EPA policy and procedures for identifying and dealing with 
conflicts of interest and improper influence or favoritism in connection 
with contracts involving current or former EPA employees. This subpart 
does not apply to agreements with other departments or agencies of the 
Federal Government, nor to contracts awarded to State or local units of 
Government.



1503.600-71  Definitions.

    (a) Regular employee means any officer or employee of EPA who is 
employed or appointed, with or without compensation, to serve more than 
130 days during any period of 365 consecutive days, including regular 
officers of the Public Health Service Commissioned Corps and reserve 
officers of the Public Health Service Commissioned Corps while on active 
duty.
    (b) Special employee means an officer or employee of EPA 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 that 130 days during any period of 365 consecutive 
days and who actually served more than 60 days during such 365-day 
period.



1503.601  Policy.

    (a) No contract may be awarded without competition to a former 
regular or special EPA employee (or to a business concern or other 
organization owned or substantially owned or controlled by a former 
employee) whose employment terminated within 365 calendar days before 
submission of a proposal to EPA.
    (b) No contract shall be awarded without competition to a firm which 
employs, or proposes to employ, a current regular or special EPA 
employee

[[Page 11]]

or a former EPA regular or special employee whose employment terminated 
within 365 calendar days before submission of a proposal to EPA, if 
either of the following conditions exits:
    (1) The current or former EPA regular or special employee is or was 
involved in development or negotiating the proposal for the prospective 
contractor.
    (2) The current or former EPA regular or special employee will be 
involved directly or indirectly in the management, administration, or 
performance of the contract.



1503.602  Exceptions.

    The Assistant Administrator for Administration and Resources 
Management may authorize an exception, in writing, to the policy in FAR 
3.601 and 1503.601 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, or EPA regulations at 40 CFR part 3. The Assistant 
Administrator shall consult with the Designated Agency Ethics Official 
before authorizing any exceptions.

[60 FR 38505, July 27, 1995]



1503.670  Solicitation of disclosure provision.

    The Contracting Officer shall insert the provision at 1552.203-70, 
Current/Former Agency Employee Involvement Certification, in all 
solicitations for sole source acquisitions.

[50 FR 14357, Apr. 11, 1985]



   Subpart 1503.9--Whistle Blower Protections for Contractor Employees



1503.905  Procedures for investigating complaints.

    The Assistant Administrator for Administration and Resources 
Management is designated as the recipient of the written report of 
findings by the Inspector General. The Assistant Administrator shall 
ensure that the report of findings is disseminated in accordance with 
FAR 3.905(c).

[61 FR 57337, Nov. 6, 1996]



PART 1504--ADMINISTRATIVE MATTERS--Table of Contents




                   Subpart 1504.6--Contract Reporting

1504.670 Business ownership representation.

                     Subpart 1504.8--Contract Files

Sec.
1504.804 Closeout of contract files.
1504.804-5 Detailed procedures for closing out contract files.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); 41 U.S.C. 418b.

    Source: 49 FR 28246, July 11, 1984, unless otherwise noted.



                   Subpart 1504.6--Contract Reporting



1504.670  Business Ownership Representation.

    Contracting officers shall insert the clause at 1552.204-70, 
Business Ownership Representation, in solicitations and contracts with 
an estimated dollar value greater than the simplified acquisition 
threshold. Completion of the clause by the successful awardee is 
voluntary.

[65 FR 75866, Dec. 5, 2000]



                     Subpart 1504.8--Contract Files



1504.804  Closeout of contract files.



1504.804-5  Detailed procedures for closing out contract files.

    In addition to those procedures set forth in FAR 4.804-5, the 
contracting office shall, before final payment is made under a cost 
reimbursement type contract, verify the allowability, allocability, and 
reasonableness of costs claimed. Verification of total costs incurred 
should be obtained from the Office of Audit through the cost advisory 
group at the contracting office in the form of a final audit report. 
Similar verification of actual costs shall be made for other contracts 
when cost incentives, price redeterminations, or cost-reimbursement 
elements are involved. Termination settlement proposals shall be 
submitted to the cost advisory group at the contracting office for 
review by the Office of Audit

[[Page 12]]

as prescribed by FAR 49.107. All such audits will be coordinated through 
the cost advisory group in the contracting office. Exceptions to these 
procedures are the quick close-out procedures as described in FAR 42.708 
and Unit 2 of the EPA Acquisition Handbook.

[49 FR 28246, July 11, 1984, as amended at 63 FR 46899, Sept. 3, 1998]

[[Page 13]]



                   SUBCHAPTER B--ACQUISITION PLANNING



PART 1505--PUBLICIZING CONTRACT ACTIONS--Table of Contents




Sec.
1505.000 Scope of part.

          Subpart 1505.2--Synopses of Proposed Contract Actions

1505.202 Exceptions.
1505.203 Publicizing and response time.
1505.271 [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8838, Mar. 8, 1984, unless otherwise noted.



1505.000  Scope of part.

    This part provides instructions on publicizing contract 
opportunities and response time, instructions on information to include 
in the synopses of proposed contracts, instructions on publicizing 
orders under GSA schedule contracts, policy references relative to 
release of information, and procedures for obtaining information on 
previous Government contracts.

[50 FR 14357, Apr. 11, 1985]



          Subpart 1505.2--Synopses of Proposed Contract Actions



1505.202  Exceptions.

    The Contracting Officer need not submit the notice required by FAR 
5.201 when the Contracting Officer determines in writing that the 
contract is for the services of experts for use in preparing or 
prosecuting a civil or criminal action under the Superfund Amendments 
and Reauthorization Act of 1986.

[60 FR 38505, July 27, 1995]



1505.203  Publicizing and response time.

    (a) The Contracting Officer may, at his/her discretion under certain 
circumstances, elect to transmit a synopsis to the Commerce Business 
Daily (CBD) of a proposed contract action that falls within an exception 
to the synopsis requirement in FAR 5.202(a). For those contract actions, 
the Contracting Officer may provide for a lesser time period than the 15 
days required by FAR 5.203(a) and the 30 days required by FAR 5.203 (c) 
or (d), and the 45 days required by FAR 5.203(e). The Contracting 
Officer must identify the basis for the lesser time periods for response 
in the synopsis.
    (b) The authority for paragraph (a) does not extend to the synopsis 
of contract actions falling within the exception in FAR 5.202(a)(7), if 
to do so would disclose the originality of thought or innovativeness of 
the proposed research.

[50 FR 14357, Apr. 11, 1985, as amended at 62 FR 33572, June 20, 1997]



1505.271  [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]



PART 1506--COMPETITION REQUIREMENTS--Table of Contents




Sec.
1506.000 Scope of part.

Subpart 1506.2--Full and Open Competition After Exclusion of Sources 
[Reserved]

          Subpart 1506.3--Other Than Full and Open Competition

1506.302-5 Authorized or required by statute.
1506.303-2 Content.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 50 FR 14357, Apr. 11, 1985, unless otherwise noted.



1506.000  Scope of part.

    This part implements FAR part 6. It prescribes the Environmental 
Protection Agency policies and procedures in

[[Page 14]]

obtaining full and open competition in the acquisition process.

Subpart 1506.2--Full and Open Competition After Exclusion of Sources 
[Reserved]



          Subpart 1506.3--Other Than Full and Open Competition



1506.302-5  Authorized or required by statute.

    (a) Authority. Section 109(e) of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA) is cited as authority.
    (b) Application. (1) The contracting officer may use other than full 
and open competition to acquire the services of experts for use in 
preparing or prosecuting a civil or criminal action under SARA whether 
or not the expert is expected to testify at trial. The contracting 
officer need not prepare the written justification under FAR 6.303 when 
acquiring expert services under the authority of section 109(e) of SARA. 
The contracting officer shall document the official contract file when 
using this authority.
    (2) The contracting officer shall give notice to the Agency's 
Competition Advocate whenever a contract award is made using other than 
full and open competitition under this authority. The notice shall 
contain a copy of the contract and the summary of negotiations.

[53 FR 31872, Aug. 22, 1988]



1506.303-2  Content.

    The documentation requirements in this section apply only to 
acquisitions processed using other than small purchase procedures. 
(Refer to 1513.170 for documentation for small purchase acquisitions).
    (a) The initiating office shall prepare a written justification for 
other than full and open competition (JOFOC) that documents the facts 
and circumstances substantiating the infeasibility of full and open 
competition for each recommended limited sources or sole source 
acquisition when required by FAR 6.302.
    (b) The recommendation shall be entitled ``Justification for Other 
Than Full and Open Competition'' and shall be signed at the programmatic 
Division Director or comparable office level prior to submission with 
the procurement request. The JOFOC shall contain the information 
prescribed in FAR 6.303-2 (a) and (b).
    (c) If unusual and compelling urgency (see FAR 6.303-2) is a basis 
for the JOFOC, then the following applies. Explain the circumstances 
that led to the need for an urgent contractual action. Explain why the 
requirement could not have been processed in sufficient time to permit 
full and open competition. It should be noted that the existence of 
legislation, court order, or Presidential mandate is not, of itself, a 
sufficient basis for a JOFOC. However, the circumstances necessitating 
legislation, court order, or Presidential mandate may justify 
contractual action on an other than full and open competition basis.
    (d) If the proposed acquisition has been synopsized in accordance 
with the applicable requirements in FAR subpart 5.2, the Contracting 
Officer must incorporate the evaluation of responses to the synopsis in 
the JOFOC. (See 1506.371(d) for contents of the evaluation document).

[50 FR 14357, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985]



PART 1508--REQUIRED SOURCES OF SUPPLY--Table of Contents




    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).



      Subpart 1508.8--Acquisition of Printing and Related Supplies



1508.870  Contract clause.

    Contracting Officers shall insert the contract clause at 1552.208-
70, Printing, in all contracts which require printing, duplication, 
binding, reproduction, and related services and are subject to the 
provisions of the Government Printing and Binding Regulations published 
by the Joint Committee on Printing, Congress of the United States.

[49 FR 8838, Mar. 8, 1984]

[[Page 15]]



PART 1509--CONTRACTOR QUALIFICATIONS--Table of Contents




Sec.
1509.000 Scope of part.

           Subpart 1509.1--Responsible Prospective Contractors

1509.105 Procedures.

          Subpart 1509.170--Contractor Performance Evaluations

1509.170-1 Scope of subpart.
1509.170-2 Purpose.
1509.170-3 Applicability.
1509.170-4 Definitions.
1509.170-5 Policy.
1509.170-6 Filing of forms.
1509.170-7 Release of ratings.
1509.170-8 Contractor Performance Report.

         Subpart 1509.4--Debarment, Suspension and Ineligibility

1509.403 Definitions.
1509.406 Debarment.
1509.406-3 Procedures.
1509.407 Suspension.
1509.407-3 Procedures.

          Subpart 1509.5--Organizational Conflicts of Interest

1509.500 Scope of subpart.
1509.502 Applicability.
1509.503 Waiver.
1509.505-4 Obtaining access to proprietary information.
1509.505-70 Information sources.
1509.507-1 Solicitation provisions.
1509.507-2 Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8839, Mar. 8, 1984, unless otherwise noted.



1509.000  Scope of part.

    This part implements FAR part 9 and provides policy and procedures 
pertaining to contractor's responsibility; debarment, suspension, and 
ineligibility; and organizational conflicts of interest.



           Subpart 1509.1--Responsible Prospective Contractors



1509.105  Procedures.



          Subpart 1509.170--Contractor Performance Evaluations



1509.170-1  Scope of subpart.

    This subpart establishes EPA policy and procedures for evaluation of 
contractor performance. Contracting officers shall insert the contract 
clause at 1552.209-76 in all solicitations and contracts with an 
estimated dollar value in excess of $100,000. For acquisitions involving 
options, the total estimated value of the acquisition shall include the 
estimated base amount plus the option(s) amount(s).

[49 FR 8839, Mar. 8, 1984, as amended at 64 FR 20202, Apr. 26, 1999]



1509.170-2  Purpose.

    This subpart provides guidance to program and contracting personnel 
regarding the evaluation of contractor performance. It establishes a 
uniform method for determining and recording the effectiveness of 
contractors in meeting contractual obligations. Additionally, this 
subpart details a systematic approach for identifying and maintaining 
records of contractors' performance histories.

[64 FR 20203, Apr. 26, 1999]



1509.170-3  Applicability.

    (a) This subpart applies to all EPA acquisitions in excess of 
$100,000, except for architect-engineer acquisitions, acquisitions 
awarded under the Federal Acquisition Regulation (FAR) Subpart 8.6, 
Acquisitions from Federal Prison Industries, Incorporated, FAR Subpart 
8.7, Acquisitions from Nonprofit Agencies Employing People Who Are Blind 
or Severely Disabled, and FAR 13.5, Test Program for Certain Commercial 
Items. FAR 36.604 provides detailed instructions for architect-engineer 
contractor performance evaluations.

[[Page 16]]

    (b) The acquisition of commercial items in accordance with FAR 
13.106 is not applicable to this subpart because simplified acquisition 
procedures do not require the creation or existence of a formal database 
for past performance evaluations. In cases where simplified acquisition 
procedures are not used to acquire commercial items (see FAR 12.203), 
this subpart is applicable to acquiring commercial items in excess of 
$100,000.
    (c) EPA Form 1900-26, Contracting Officer's Evaluation of Contractor 
Performance, and EPA Form 1900-27, Project Officer's Evaluation of 
Contractor Performance, applies to all performance evaluations completed 
prior to May 26, 1999. Thereafter, EPA Forms 1900-26 and 1900-27 are 
obsolete, and contracting officers shall complete all contractor 
performance evaluations by use of the National Institutes of Health's 
Contractor Performance System in accordance with EPAAR paragraph (a) of 
this section.
    (d) Construction acquisitions shall be completed by use of the NIH 
construction module. Performance evaluations for construction 
acquisitions shall be completed in accordance with EPAAR 1509.170-5.

[64 FR 20203, Apr. 26, 1999, as amended at 67 FR 66344, Oct. 31, 2002]



1509.170-4  Definitions.

    (a) Contractor Performance Report is an evaluation of a contractor's 
performance for a specified period of time.
    (b) Interim Report refers to a Contractor Performance Report that 
covers each 12 month period after the effective date of contract.
    (c) Final Report refers to a Contractor Performance Report that 
covers the last 12 months (or less) of contract performance.
    (d) Ratings refer to the numerical scores for each performance 
category. Ratings are defined as follows: 0 = unsatisfactory, 1 = poor, 
2 = fair, 3 = good, 4 = excellent, and 5 = outstanding.
    (e) Summary ratings refer to the ratings determined by one level 
above the contracting officer regarding disagreements between the 
contractor and the contracting officer. Summary ratings reflect the 
Agency's ultimate conclusion for the performance period being evaluated.
    (f) Performance Categories refer to the measures used to evaluate a 
contractor's performance. Performance categories include quality, cost 
control, timeliness of performance, business relations, compliance with 
labor standards, compliance with safety standards, and meeting Small 
Disadvantaged Business subcontracting requirements.

[64 FR 20203, Apr. 26, 1999, as amended at 64 FR 41043, July 29, 1999; 
67 FR 66344, Oct. 31, 2002]



1509.170-5  Policy.

    (a) Contracting officers are responsible for the timely completion 
of contractors' performance evaluations. The National Institutes of 
Health Contractor Performance System shall be used to record individual 
contractor performance histories on EPA contracts and to obtain 
contractor past performance information for use in EPA's source 
selection process.
    (b) For service type acquisitions, contracting officers shall use 
the National Institutes of Health (NIH) Contractor Performance System to 
record evaluations for all contract performance periods expiring after 
May 26, 1999. For construction type acquisitions, contracting officers 
shall use the NIH system to record evaluations for all contract 
performance periods expiring after December 2, 2002.
    (c) Contractor evaluation information shall be recorded in 
Contractor Performance Reports (Report) which are generated by the 
National Institutes of Health system. Reports shall cover individual 
contractor evaluations at the contract level, which includes all work 
assignments, task orders, or delivery orders associated with the 12 
month period being evaluated (interim Report) or the last 12 months (or 
less) of contract performance (final Report).
    (d) The contracting officer must complete interim Reports covering 
each 12 month period after the effective date of contract for all 
contracts in excess of $100,000, except those acquisitions identified in 
1509.170-3, Applicability. In addition to interim Reports, the 
contracting officer must complete a final

[[Page 17]]

Report which covers the last 12 months (or less) of contract 
performance.
    (e) The contracting officer shall initiate the process for 
completing interim Reports within five (5) business days after the end 
of each 12 months of contract performance. The contracting officer shall 
initiate the process for completing a final Report within five (5) 
business days after the end of the last 12 months (or less) of contract 
performance. Final Reports must be completed prior to contract closeout.
    (f) The contracting officer must complete interim and final Reports, 
including the project officer's evaluation of contractor performance, 
receipt of any contractor input, and resolution of summary ratings (if 
any) within 90 business days from the date the contracting officer 
initiates the evaluation.
    (g) Reports shall be used to inform other agencies and departments 
(upon request) about a contractor's performance on an EPA contract, and 
to assist the contracting officer and the Technical Evaluation Panel 
with evaluating past performance for future EPA acquisitions.
    (h) When evaluating proposals, contracting officers shall use the 
National Institutes of Health system to access Reports from other 
agencies or departments that are available in the National Institutes of 
Health database. Contracting Officers may need to access past 
performance information from other than the National Institutes of 
Health system if the National Institutes of Health system does not 
include applicable information.
    (i) In accordance with FAR 42.1503(b), the ultimate conclusion on 
the performance evaluation is the decision of the Agency. The 
contracting officer must ensure the accuracy of ratings for each 
performance category by verifying that information in the contract file 
corresponds with the project officer's designated ratings. A 
contractor's performance evaluation should closely parallel award fee 
determinations made under the contract.
    (j) In cases of novations involving successors-in-interest, a final 
evaluation of the predecessor contractor must be completed within five 
(5) business days after the end of the predecessor contractor's 
performance, and an interim evaluation of the successor contractor must 
be completed within five (5) business days after the end of each 12 
months of contract performance after the successor began performing. In 
cases of change-of-name agreements, the system shall be changed to 
reflect the new contractor's name.
    (k) Contracting officers must inform the Office of Debarment and 
Suspension of any repetitive unsatisfactory or poor (a score of 0 or 1) 
ratings encountered by the contractor.

[64 FR 20203, Apr. 26, 1999, as amended at 64 FR 41043, July 29, 1999; 
67 FR 66344, Oct. 31, 2002]



1509.170-6  Filing of forms.

    The original copy of completed Contractor Performance Reports 
(interim and final) shall be filed in each individual contractor's 
official contract file. The National Institutes of Health Contractor 
Performance System will retain all reports for three (3) years after 
contract completion.

[64 FR 20204, Apr. 26, 1999]



1509.170-7  Release of ratings.

    (a) Agencies and departments who subscribe to the National 
Institutes of Health's Contractor Performance System will have direct 
access to all Reports, including those of EPA, in the National 
Institutes of Health's database. Information on EPA contractors' 
performance ratings may also be obtained by contacting the EPA 
contracting officer responsible for the evaluation.
    (b) Contractors' performance ratings may be released to other 
Federal, State, and local Governments upon written request. The release 
to other Federal, State, and local Governments must stipulate that the 
information provided shall not be released outside of the requesting 
Government agency. In cases where the Federal agency is part of the 
National Institutes of Health Contract Performance System, a written 
request is not applicable.
    (c) Freedom of Information Act requests shall be processed by the 
EPA Freedom of Information Act office where the contract is located. 
Requests

[[Page 18]]

for past performance evaluations during the period the information may 
be used to provide source selection information shall be rejected if the 
requests are made by other than the Government personnel and the 
contractor whose performance is being evaluated.

[64 FR 20204, Apr. 26, 1999]



1509.170-8  Contractor Performance Report.

    (a) Contractor Performance Reports (interim and final) must be 
prepared electronically by use of the National Institutes of Health's 
Contractor Performance System. Hard copy preparation of Reports shall 
not be used unless specifically instructed by the National Institutes of 
Health. The National Institutes of Health will provide EPA's Office of 
Acquisition Management Internal Oversight Service Center with specific 
instructions if hard copy use becomes necessary.
    (b) The performance categories and ratings used in the evaluation of 
contractor performance are described in the clause at 1552.209-76. The 
NIH system provides instructions to assist contracting officers and 
project officers with completing evaluations.

[64 FR 20204, Apr. 26, 1999, as amended at 67 FR 66344, Oct. 31, 2002]



         Subpart 1509.4--Debarment, Suspension and Ineligibility

    Source: 65 FR 37291, June 14, 2000, unless otherwise noted.



1509.403  Definitions.

    The ``Debarring Official'' and the ``Suspending Official'' as 
defined in FAR 9.403 is a designated individual located in the Office of 
Grants and Debarment. This Agency official is authorized to make the 
determinations and provide the notifications required under FAR subpart 
9.4 or this subpart, except for the determinations required by FAR 
9.405-1(a) which are to be made by the Head of the Contracting Activity. 
All compelling reason determinations to be made by the Debarring or 
Suspending Official under FAR subpart 9.4 or this subpart will be made 
only after coordination and consultation with the Head of the 
Contracting Activity. See also 40 CFR part 32.



1509.406  Debarment.



1509.406-3  Procedures.

    (a) Investigation and referral--(1) Contracting officer 
responsibility. (i) When contracting personnel discover information 
which indicates that a cause for debarment may exist, they shall 
promptly report such information to the cognizant Chief of the 
Contracting Office (CCO). Purchasing agents in simplified acquisition 
activities which do not come under the direct cognizance of a CCO shall 
report such information by memorandum, through their immediate 
supervisor, and addressed to the cognizant CCO responsible for their 
office's contract acquisitions.
    (ii) Contracting officers shall review ``The List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'' to 
ensure that the Agency does not solicit offers from, award contracts to, 
or consent to subcontracts with listed contractors.
    (2) Chief of the Contracting Office responsibility. When the Chief 
of the Contracting Office determines that sufficient information is 
available to indicate that a cause for debarment may exist, such 
information shall be promptly reported by memorandum to the HCA. The 
memorandum provides the Chief of the Contracting Office's assessment of 
the information, any investigative report or audit, and any additional 
information he/she has discovered.
    (3) HCA responsibility. Upon receipt of a report of a suspected 
debarment situation, the HCA shall take the following actions:
    (i) Notify the Director, Suspension and Debarment Division, that 
investigation of a potential debarment has been initiated.
    (ii) Review the reported information.
    (iii) Investigate as necessary to verify or develop additional 
information.
    (iv) Refer the matter through the Suspension and Debarment Division 
to the Debarring Official for consideration of debarment; request that 
the Suspension and Debarment Division

[[Page 19]]

evaluate the information and, if appropriate, refer the matter to the 
Debarring Official for consideration of debarment; or recommend to the 
Suspension and Debarment Division that the matter be closed without 
further action because the facts do not warrant debarment.
    (v) Obtain legal counsel's opinion on referrals or recommendations 
made to the Debarring Official.
    (vi) Notify EPA Contracting Officers of those Contractors who are 
ineligible for solicitation, award, or subcontracting but who do not 
appear on the GSA Consolidated List; e.g., those who are ineligible 
based on a settlement reached by the Debarring Official under which the 
Contractor has agreed to voluntarily exclude itself from participation 
in Government contracting/subcontracting for a specified period or 
because of a Notice of Proposal to Debar.
    (4) Any official. When information is discovered which may indicate 
potential criminal or civil fraud activity, such information must be 
referred promptly to the EPA Office of Inspector General.
    (5) Debarring Official's responsibility. The Debarring Official 
shall:
    (i) Review referrals from the HCA together with the HCA's 
recommendations, if any, and determine whether further consideration by 
the Debarring Official is warranted and take such actions as are 
required by FAR subpart 9.4;
    (ii) Obtain the HCA's recommendation prior to reaching a voluntary 
exclusion settlement with a Contractor in lieu of debarment;
    (iii) Promptly notify the HCA of Contractors with whom a settlement 
in lieu of debarment has been reached under which the Contractor 
voluntarily excludes itself from or restricts its participation in 
Government contracting/subcontracting for a specified period; and of 
Contractors who have received a Notice of Proposal to Debar.
    (b) [Reserved]



1509.407  Suspension.



1509.407-3  Procedures.

    The procedures prescribed in 1509.406-3(a) shall be followed under 
conditions which appear to warrant suspension of a Contractor.



          Subpart 1509.5--Organizational Conflicts of Interests



1509.500  Scope of subpart.

    This subpart establishes EPA policy and procedures for identifying, 
evaluating, and resolving organizational conflicts of interest. EPA's 
policy is to avoid, neutralize, or mitigate organizational conflicts of 
interest. If EPA is unable to neutralize or mitigate the effects of a 
potential conflict of interest, EPA will disqualify the prospective 
contractor or will terminate the contract when potential or actual 
conflicts are identified after award.

[49 FR 8839, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



1509.502  Applicability.

    This subpart applies to all EPA contracts except agreements with 
other Federal agencies. However, this subpart applies to contracts with 
the Small Business Administration (SBA) under the 8(a) program.



1509.503  Waiver.

    The Head of the Contracting Activity may waive any general rule or 
procedure of this subpart by determining that its application in a 
particular situation would not be in the Government's interest. Any 
request for waiver must be in accordance with FAR 9.503. The Assistant 
General Counsel for Contracts and Information Law shall be consulted on 
such waiver requests.

[49 FR 8839, Mar. 8, 1984, as amended at 61 FR 29316, June 10, 1996]



1509.505-4  Obtaining access to proprietary information.

    Contractors gaining access to confidential business information of 
other companies in performing advisory services for EPA shall comply 
with the special requirements of 40 CFR part 2 and the provisions of 
their contracts relating to the treatment of confidential business 
information.



1509.505-70  Information sources.

    (a) Disclosure. Prospective EPA Contractors responding to 
solicitations or

[[Page 20]]

submitting unsolicited proposals shall provide information to the 
Contracting Officer for use in identifying, evaluating, or resolving 
potential organizational conflicts of interest. The submittal may be a 
certification or a disclosure, pursuant to paragraph (a) (1) or (2) of 
this section.
    (1) If the prospective contractor is not aware of any information 
bearing on the existence of any organizational conflict of interest, it 
may so certify.
    (2) Prospective contractors not certifying in accordance with 
paragraph (a)(1) of this section must provide a disclosure statement 
which describes concisely all relevant facts concerning any past, 
present, or planned interests relating to the work to be performed and 
bearing on whether they, including their chief executives, directors, or 
any proposed consultant or subcontractor, may have a potential 
organizational conflict of interest.
    (b) Failure to disclose information. Any prospective contractor 
failing to provide full disclosure, certification, or other required 
information will not be eligible for award. Nondisclosure or 
misrepresentation of any relevant information may also result in 
disqualification from award, termination of the contract for default, or 
debarment from Government contracts, as well as other legal action or 
prosecution. In response to solicitations, EPA will consider any 
inadvertent failure to provide disclosure certification as a ``minor 
informality'' (as explained in FAR 14.405); however, the prospective 
contractor must correct the omission promptly.
    (c) Exception. Where the Contractor has previously submitted a 
conflict of interest certification or disclosure for a contract, only an 
update of such statement is required when the contract is modified.

[49 FR 8839, Mar. 8, 1994. Redesignated at 59 FR 18619, Apr. 19, 1994]



1509.507-1  Solicitation provisions.

    (a) Advance notice of limitations. The Contracting Officer shall 
alert prospective contractors by placing a notice in the solicitation 
whenever a particular acquisition might create an organizational 
conflict of interest. The notice will:
    (1) Include the information prescribed in (FAR) 48 CFR 9.507-1;
    (2) Refer prospective contractors to this subpart; and
    (3) Require proposers to disclose relevant facts concerning any 
past, present, or currently planned interests relating to the work 
described in the solicitation.
    (b) Required solicitation provision. The Contracting Officer shall 
include the provisions at 1552.209-70 and 1552.209-72 in all 
solicitations, except where the following applies:
    (1) An Organizational Conflict of Interest provision is drafted for 
a particular acquisition (see Section 1509.507-1(a));
    (2) When the procurement is with another Federal agency (however, 
the provision is included in solicitations issued under the Small 
Business Administration's (SBA) 8(a) program); and
    (3) When the procurement is accomplished through simplified 
acquisition procedures, use of the provision is optional.

[49 FR 8839, Mar. 8, 1994. Redesignated and amended at 59 FR 18619, Apr. 
19, 1994; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 20, 1997]



1509.507-2  Contract clause.

    (a) The Contracting Officer shall include the clause at 1552.209-71 
in all contracts in excess of the simplified acquisition threshold and, 
as appropriate, in simplified acquisition procedures. Contracts for 
other than Superfund work shall include Alternate I in this clause in 
lieu of paragraph (e).
    (b) The Contracting Officer shall include the clause at 1552.209-73 
in all solicitations and contracts for Superfund work in excess of the 
simplified acquisition threshold and, as appropriate, in small purchases 
for Superfund work.
    (c) The Contracting Officer shall include the clause at 1552.209-74 
or its alternates in the following solicitations and contracts for 
Superfund work in excess of the simplified acquisition threshold and, as 
appropriate, in simplified acquisition procedures for Superfund work. 
The Contracting Officer shall include the clause at 1552.209-74 in all 
Alternative Remedial Contracting Strategy (ARCS) solicitations

[[Page 21]]

and contracts, except Site Specific solicitations and contracts. 
Alternate I shall be used in all Time Critical Rapid Response (TCRR) 
solicitations and contracts, except site specific solicitations and 
contracts. The term ``TCRR'' in the Limitation of Future Contracting 
clauses includes not only TCRR solicitations and contracts but Emergency 
Response Cleanup Services (ERCS) and other emergency type solicitations 
and contracts. TCRR pilot scale studies are included in the term 
``treatability studies''. Alternate II shall be used in all Technical 
Assistance Team (TAT) solicitations and contracts. Alternate III shall 
be used in all Environmental Services Assistance Team (ESAT) 
solicitations and contracts. Alternate IV shall be used in all Technical 
Enforcement Support (TES) solicitations and contracts. Alternate V shall 
be used in all Superfund Headquarters Support solicitations and 
contracts. The Contracting Officer is authorized to modify paragraph (c) 
of Alternate V to reflect any unique limitations applicable to the 
program requirements. Alternate VI shall be used in all Site Specific 
solicitations and contracts.
    (d) The Contracting Officer shall insert the clause at 1552.209-75 
in Superfund solicitations and contracts in excess of the simplified 
acquisition threshold, where the solicitation or contract does not 
include (EPAAR) 48 CFR 1552.211-74, Work Assignments, Alternate I, or a 
similar clause requiring conflict of interest certifications during 
contract performance. This clause requires an annual conflict of 
interest certification from contractors when the contract does not 
require the submission of other conflict of interest certifications 
during contract performance. Contracts requiring annual certifications 
include: Site Specific contracts, the Contract Laboratory Program (CLP), 
and the Sample Management Office (SMO) contracts. The annual 
certification requires a contractor to certify that all organizational 
conflicts of interest have been reported, and that its personnel 
performing work under EPA contracts or relating to EPA contracts have 
been informed of their obligation to report personal and organizational 
conflicts of interest to the Contractor. The annual certification shall 
cover the one-year period from the date of contract award for the 
initial certification, and a one-year period starting from the previous 
certification for subsequent certifications. The certification must be 
received by the Contracting Officer no later than 45 days after the 
close of the certification period covered.

[59 FR 18619, Apr. 19, 1994, as amended at 61 FR 57337, Nov. 6, 1996]



PART 1511--DESCRIBING AGENCY NEEDS--Table of Contents




Sec.
1511.000 Scope of part.
1511.011 Solicitation Provisions and Contract Clauses.
1511.011-70 Reports of work.
1511.011-71 [Reserved]
1511.011-72 Monthly progress report.
1511.011-73 Level of effort.
1511.011-74 Work assignments.
1511.011-75 Working files.
1511.011-76 Legal analysis.
1511.011-77 Final reports.
1511.011-78 Advisory and assistance services.
1511.011-79 Information resources management.
1511.011-80 Data standards for the transmission of laboratory 
          measurement results.

    Authority: Sec. 205(c), 63 Sta. 390, as amended, 40 U.S.C. 486(c).

    Source: 61 FR 57337, Nov. 6, 1996, unless otherwise noted.



1511.000  Scope of part.

    This part implements FAR part 11 and provides policy and procedures 
for describing Agency needs.



1511.011  Solicitation Provisions and Contract Clauses.



1511.011-70  Reports of work.

    Contracting officers shall insert one of the contract clauses at 
1552.211-70 when the contract requires the delivery of reports, 
including plans, evaluations, studies, analyses and manuals. Alternate I 
should be used to specify reports in contract schedule, whereas the 
basic clause should be used when reports are specified in a contract 
attachment.

[63 FR 10549, Mar. 4, 1998]

[[Page 22]]



1511.011-71  [Reserved]



1511.011-72  Monthly progress report.

    Contracting Officers shall insert a contract clause substantially 
the same as the clause at 1552.211-72 when monthly progress reports are 
required.



1511.011-73  Level of effort.

    The Contracting Officer shall insert the clause at 1552.211-73, 
Level of Effort, in term form contracts.



1511.011-74  Work assignments.

    The Contracting Officer shall insert the contract clause at 
1552.211-74, Work Assignments, in cost-reimbursement type term form 
contracts when work assignments are used. For Superfund contracts, 
except for contracts which require annual conflict of interest 
certificates (e.g., Site Specific contracts, the Contract Laboratory 
Program (CLP), and Sample Management Office (SMO) contracts), the 
Contracting Officer shall use the clause with either Alternate I or 
Alternate II. Alternate I shall be used for contractors who have at 
least 3 years of records that may be searched for certification 
purposes. Alternate II shall be used for contractors who do not have at 
least three years of records that may be searched.



1511.011-75  Working files.

    Contracting Officers shall insert the contract clause at 1552.211-75 
in all applicable EPA contracts where accurate working files on all work 
documentation is required in the performance of the contract.



1511.011-76  Legal analysis.

    Contracting Officers shall insert the clause at 1552.211-76 when it 
is determined that the contract involves legal analysis.



1511.011-77  Final reports.

    Contracting Officers shall insert the contract clause at 1552.211-77 
when a contract requires both a draft and a final report.



1511.011-78  Advisory and assistance services.

    Contracting Officers shall insert the contract clause at 1552.211-78 
in all contracts for advisory and assistance services.



1511.011-79  Information resources management.

    The Contracting Officer shall insert the clause at 1552.211-79, 
Compliance with EPA Policies for Information Resource Management, in all 
solicitations and contracts.



1511.011-80  Data standards for the transmission of laboratory measurement results.

    The contracting officer shall insert the clause at 1552.211-80 in 
all solicitations and contracts when the contract requires the 
electronic transmission of environmental measurements from laboratories 
to the Environmental Protection Agency (EPA).

[65 FR 58923, Oct. 3, 2000]

[[Page 23]]



          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES



PART 1513--SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents




Sec.
1513.000 Scope of part.

                         Subpart 1513.1--General

1513.170 Competition exceptions and justification for sole source 
          simplified acquisition procedures.
1513.170-1 Contents of sole source justifications.

Subpart 1513.4--Imprest Fund [Reserved]

                     Subpart 1513.5--Purchase Orders

1513.505 Purchase order and related forms.
1513.507 Clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 61 FR 57338, Nov. 6, 1996, unless otherwise noted.



1513.000  Scope of part.

    This part prescribes EPA policies and procedures for the acquisition 
of supplies, nonpersonal services, and construction from commercial 
sources, the aggregate amount of which does not exceed the simplified 
acquisition threshold.



                         Subpart 1513.1--General



1513.170  Competition exceptions and justification for sole source simplified acquisition procedures.



1513.170-1  Contents of sole source justifications.

    The program office submitting the procurement request must submit, 
as a separate attachment, a brief written statement in support of sole 
source acquisitions exceeding the micro-purchase threshold. The 
statement must cite one or more of the circumstances in FAR 6.302 and 
the necessary facts to support each circumstance. Although program 
offices may not cite the authority in FAR 6.302-7, the public interest 
may be used as a basis to support a sole source acquisition. If the 
acquisition has been synopsized as a notice of proposed sole source 
acquisition, the statement must include the results of the evaluation of 
responses to the synopsis.

Subpart 1513.4--Imprest Fund [Reserved]



                     Subpart 1513.5--Purchase Orders



1513.505  Purchase order and related forms.

    Contracting Officers may use the EPA Form 1900-8, Procurement 
Request/Order, in lieu of Optional Forms 347 and 348 for individual 
purchases prepared in accordance with the instructions printed on the 
reverse thereof (see 1553.213-70).

[61 FR 57338, Nov. 6, 1996. Redesignated at 62 FR 33572, June 20, 1997]



1513.507  Clauses.

    (a) It is the general policy of the Environmental Protection Agency 
that Contractor or vendor prescribed leases or maintenance agreements 
for equipment shall not be executed.
    (b) The Contracting Officer shall, where appropriate, insert the 
clause at 1552.213-70, Notice to Suppliers of Equipment, in orders for 
purchases or leases of automatic data processing equipment, word 
processing, and similar types of commercially available equipment for 
which vendors, as a matter of routine commercial practice, have 
developed their own leases and/or customer service maintenance 
agreements.



PART 1514--SEALED BIDDING--Table of Contents




                  Subpart 1514.2--Solicitation of Bids

Sec.
1514.201 Preparation of invitations for bids.
1514.201-6 Solicitation provisions.
1514.201-7 Contract clauses.
1514.205 Solicitation mailing lists.

          Subpart 1514.4--Opening of Bids and Award of Contract

1514.404 Rejection of bids.

[[Page 24]]

1514.406 Mistakes in bids.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8843, Mar. 8, 1984, unless otherwise noted.



                  Subpart 1514.2--Solicitation of Bids



1514.201  Preparation of invitations for bids.



1514.201-6  Solicitation provisions.

    The Contracting Officer shall insert the solicitation provision at 
1552.214-71, Contract Award-Other Factors-Sealed Bidding, in invitations 
for bids when it is appropriate to describe other factors that will be 
used in evaluating bids for award.

[50 FR 14359, Apr. 11, 1985, as amended at 61 FR 55118, Oct. 24, 1996]



1514.201-7  Contract clauses.

    The CCO is authorized to waive the inclusion of the clauses at FAR 
52.214-27 and 52.214-28, in accordance with FAR 14.201-7.

[55 FR 24579, June 18, 1990, as amended at 58 FR 18976, Apr. 21, 1994]



1514.205  Solicitation mailing lists.

    When a solicitation and all amendments are posted on the Internet 
with a synopsis providing information as to how to access the 
solicitation and all amendments, the CO will need to maintain a mailing 
list of only those individuals requesting paper copies from the contract 
service center/branch. When possible, the CO should also build an 
electronic ``mailing list'' of companies downloading the solicitation 
from the Internet.

[49 FR 8843, Mar. 8, 1984, as amended at 62 FR 37148, July 11, 1997]



          Subpart 1514.4--Opening of Bids and Award of Contract



1514.404  Rejection of bids.



1514.406  Mistakes in bids.



PART 1515--CONTRACTING BY NEGOTIATION--Table of Contents




Sec.
1515.000 Scope of part.

  Subpart 1515.2--Solicitation and Receipt of Proposals and Information

1515.209 Solicitation provisions and contract clauses.

                    Subpart 1515.3--Source Selection

1515.302 Applicability.
1515.303 Responsibilities.
1515.305 Proposal evaluation.
1515.305-70 Scoring plans.
1515.305-71 Documentation of proposal evaluation.
1515.305-72 Release of cost information.

                    Subpart 1515.4--Contract Pricing

1515.404-4 Profit.
1515.404-470 Policy.
1515.404-471 EPA structured approach for developing profit or fee 
          objectives.
1515.404-472 Other methods.
1515.404-473 Limitations.
1515.404-474 Waivers.
1515.404-475 Cost realism.
1515.408 Solicitation provisions and contract clauses.

                  Subpart 1515.6--Unsolicited Proposals

1515.604 Agency points of contact.
1515.606-70 Contracting methods.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 64 FR 47410, Aug. 31, 1999, unless otherwise noted.



1515.000  Scope of part.

    This part implements and supplements FAR part 15. It prescribes the 
Environmental Protection Agency policies and procedures for contracting 
for supplies and services by negotiation.

[[Page 25]]



  Subpart 1515.2--Solicitation and Receipt of Proposals and Information



1515.209  Solicitation provisions and contract clauses.

    In addition to those provisions prescribed at FAR 15.209 and in 
accordance with FAR 15.203(a)(4), the contracting officer shall identify 
and include the evaluation factors that will be considered in making the 
source selection and their relative importance in each solicitation.
    (a) The contracting officer shall insert the provisions at 1552.215-
70, ``EPA Source Evaluation and Selection Procedures--Negotiated 
Procurement'' and either: the provision at 1552.215-71, ``Evaluation 
Factors for Award,'' where all evaluation factors other than cost or 
price when combined are significantly more important than cost or price; 
or the provision in Alternate I to 1552.215-71, where all evaluation 
factors other than cost or price when combined are significantly less 
important than cost or price; or the provision in Alternate II to 
1552.215-71, where all evaluation factors other than cost or price when 
combined are approximately equal to cost or price; or Alternate III to 
1552.215-71 where award will be made to the offeror with the lowest-
evaluated cost or price whose proposal meets or exceeds the 
acceptability standards for non-cost factors.
    (b) Evaluation factors and significant subfactors should be prepared 
in accordance with FAR 15.305 and inserted into paragraph (b) of the 
provision at 1552.215-71, Alternate I, Alternate II, and if used, in 
Alternate III.
    (c) The contracting officer shall insert the clause at 1552.215-75, 
Past Performance Information, or a clause substantially the same as 
1552.215-75, in all competitively negotiated acquisitions with an 
estimated value in excess of $100,000.

[64 FR 47410, Aug. 31, 1999, as amended at 65 FR 58923, Oct. 3, 2000]



                    Subpart 1515.3--Source Selection



1515.302  Applicability.

    FAR subpart 15.3 and this subpart apply to the selection of source 
or sources in competitive negotiation acquisitions in excess of the 
simplified acquisition threshold, except architect-engineering services 
which are covered in 1536.6.



1515.303  Responsibilities.

    The Source Selection Authority (SSA) is established as follows:
    (a) Acquisitions having a potential value of $25,000,000 or more: 
Service Center Manager (SCM). This authority is not redelegable.
    (b) Acquisitions having a potential value of less than $25,000,000, 
but more than $10,000,000: SCM, who has the authority to redelegate SSA 
authority to a warranted 1102. If redelegated, review by another 
warranted 1102 designated by the SCM is also required. A Regional 
Contracting Officer Supervisor may act as the SSA, as determined on a 
case-by-case basis, by the Director, Superfund/RCRA Regional Procurement 
Operations Division (SRRPOD).
    (c) Acquisitions having a potential value of $10,000,000 or less: 
The contracting officer.

[67 FR 5072, Feb. 4, 2002]



1515.305  Proposal evaluation.



1515.305-70  Scoring plans.

    When trade-offs are performed (in accordance with FAR 15.101-1), the 
evaluation of technical and past performance shall be accomplished using 
the following scoring plan or one specifically developed for the 
solicitation, e.g., other numeric, adjectival, color rating systems, 
etc.

                              Scoring Plan
------------------------------------------------------------------------
            Value                        Descriptive statement
------------------------------------------------------------------------
0............................  The factor is not addressed, or is
                                totally deficient and without merit.

[[Page 26]]

 
1............................  The factor is addressed, but contains
                                deficiencies and/or weaknesses that can
                                be corrected only by major or
                                significant changes to relevant portions
                                of the proposal, or the factor is
                                addressed so minimally or vaguely that
                                there are widespread information gaps.
                                In addition, because of the
                                deficiencies, weaknesses, and/or
                                information gaps, serious concerns exist
                                on the part of the technical evaluation
                                team about the offeror's ability to
                                perform the required work.
2............................  Information related to the factor is
                                incomplete, unclear, or indicates an
                                inadequate approach to, or understanding
                                of the factor. The technical evaluation
                                team believes there is question as to
                                whether the offeror would be able to
                                perform satisfactorily.
3............................  The response to the factor is adequate.
                                Overall, it meets the specifications and
                                requirements, such that the technical
                                evaluation team believes that the
                                offeror could perform to meet the
                                Government's minimum requirements.
4............................  The response to the factor is good with
                                some superior features. Information
                                provided is generally clear, and the
                                demonstrated ability to accomplish the
                                technical requirements is acceptable
                                with the possibility of more than
                                adequate performance.
5............................  The response to the factor is superior in
                                most features.
------------------------------------------------------------------------



1515.305-71  Documentation of proposal evaluation.

    In addition to the information required by FAR 15.305(a)(3), the 
technical evaluation documentation shall include:
    (a) Score sheets prepared by each individual team member must be 
made available upon the contracting officer's request. For contracts 
valued at $10,000,000 or less, the technical evaluation may be recorded 
on the short form technical evaluation format (EPA Form 1900-61) or 
another form specifically developed for the solicitation; and
    (b) A statement that the respective team members are free from 
actual or potential personal conflicts of interest, and are in 
compliance with the Office of Government Ethics ethics provisions at 5 
CFR part 2635.
    (c) Any information which might reveal that an offeror has an actual 
or potential organizational conflict of interest.
    (d) Any documentation related to exchanges with individual offerors.



1515.305-72  Release of cost information.

    (a) In accordance with FAR 15.305(a)(4), the contracting officer may 
release the cost/price proposals to those members of the evaluation team 
who are evaluating proposals at his/her discretion.
    (b) These individuals would then use this information to perform a 
cost realism analysis as described in FAR 15.404-1(d). Any 
inconsistencies between the proposals and the solicitation requirements 
and/or any inconsistencies between the cost/price and other than cost/
price proposals should be identified.



                    Subpart 1515.4--Contract Pricing



1515.404-4  Profit.

    This section implements FAR 15.404-4 and prescribes the EPA 
structured approach for establishing profit or fee prenegotiation 
objectives.



1515.404-470  Policy.

    (a) The Agency's policy is to utilize profit to attract contractors 
who possess talents and skills necessary to the accomplishment of the 
objectives of the Agency, and to stimulate efficient contract 
performance. In negotiating profit/fee, it is necessary that all 
relevant factors be considered, and that fair and reasonable amounts be 
negotiated which give the contractor a profit objective commensurate 
with the nature of the work to be performed, the contractor's input to 
the total performance, and the risks assumed by the contractor.
    (b) The purpose of EPA's structured approach is:
    (1) To provide a standard method of evaluation;
    (2) To ensure consideration of all relevant factors;
    (3) To provide a basis for documentation and explanation of the 
profit or fee negotiation objective; and

[[Page 27]]

    (4) To allow contractors to earn profits commensurate with the 
assumption of risk.
    (c) The profit-analysis factors prescribed in the EPA structured 
approach for analyzing profit or fee include those prescribed by FAR 
15.404(d)(1), and additional factors authorized by FAR 15.404(d)(2) to 
foster achievement of program objectives. These profit or fee factors 
are prescribed in 1515.404-471.



1515.404-471  EPA structured approach for developing profit or fee objectives.

    (a) General. To properly reflect differences among contracts, and to 
select an appropriate relative profit/fee in consideration of these 
differences, weightings have been developed for application by the 
contracting officer to standard measurement bases representative of the 
prescribed profit factors cited in FAR 15.404(d) and EPAAR 1515.404-
471(b)(1). Each profit factor or subfactor, or its components, has been 
assigned weights relative to their value to the contract's overall 
effort, and the range of weights to be applied to each profit factor.
    (b)(1) Profit/fee factors. The factors set forth in this paragraph, 
and the weighted ranges listed after each factor, shall be used in all 
instances where the profit/fee is negotiated.

                 Contractor's Input to Total Performance
------------------------------------------------------------------------
                                               Weight Range  (Percent)
------------------------------------------------------------------------
Direct material............................  1 to 4.
Professional/technical labor...............  8 to 15.
Professional/technical overhead............  6 to 9.
General labor..............................  5 to 9.
General overhead...........................  4 to 7.
Subcontractors.............................  1 to 4.
Other direct costs.........................  1 to 3.
General and administrative expenses........  5 to 8.
Contractor's assumption of contract cost     0 to 6.
 risk.
------------------------------------------------------------------------

    (2) The contracting officer shall first measure the ``Contractor's 
Input to Total Performance'' by the assignment of a profit percentage 
within the designated weight ranges to each element of contract cost. 
Such costs are multiplied by the specific percentages to arrive at a 
specific dollar profit or fee.
    (3) The amount calculated for facilities capital cost of money 
(FCCM) shall not be included as part of the cost base for computation of 
profit or fee. The profit or fee objective shall be reduced by an amount 
equal to the amount of facilities capital cost of money allowed. A 
complete discussion of the determination of facilities capital cost of 
money and its application and administration is set forth in FAR 31.205-
10, and the Appendix to the FAR (see 48 CFR 9904.414).
    (4) After computing a total dollar profit or fee for the 
Contractor's Input to Total Performance, the contracting officer shall 
calculate the specific profit dollars assigned for cost risk and 
performance. This is accomplished by multiplying the total Government 
cost objective, exclusive of any FCCM, by the specific weight assigned 
to cost risk and performance. The contracting officer shall then 
determine the profit or fee objective by adding the total profit dollars 
for the Contractor's Input to Total Performance to the specific dollar 
profits assigned to cost risk and performance. The contracting officer 
shall use EPA Form 1900-2 in hardcopy or electronic copy equivalent to 
facilitate the calculation of the profit or fee objective.
    (5) The weight factors discussed in this section are designed for 
arriving at profit or fee objectives for other than nonprofit and not-
for-profit organizations. Nonprofit and not-for-profit organizations are 
addressed as follows:
    (i) Nonprofit and not-for-profit organizations are defined as those 
business entities organized and operated:
    (A) Exclusively for charitable, scientific, or educational purposes;
    (B) Where no part of the net earnings inure to the benefit of any 
private shareholder or individual;
    (C) Where no substantial part of the activities is for propaganda or 
otherwise attempting to influence legislation or participating in any 
political campaign on behalf of any candidate for public office; and
    (D) Which are exempt from Federal income taxation under Section 51 
of the Internal Revenue Code. (26 U.S.C.)
    (ii) For contracts with nonprofit and not-for-profit organizations 
where fees are involved, special factor of -3 percent shall be assigned 
in all cases.
    (c) Assignment of values to specific factors--(1) General. In making 
a judgment

[[Page 28]]

on the value of each factor, the contracting officer should be governed 
by the definition, description, and purpose of the factors, together 
with considerations for evaluation set forth in this paragraph.
    (2) Contractor's input to total performance. This factor is a 
measure of how much the contractor is expected to contribute to the 
overall effort necessary to meet the contract performance requirements 
in an efficient manner. This factor, which is separate from the 
contractor's responsibility for contract performance, takes into account 
what resources are necessary, and the creativity and ingenuity needed 
for the contractor to perform the statement of work successfully. This 
is a recognition that within a given performance output, or within a 
given sales dollar figure, necessary efforts on the part of individual 
contractors can vary widely in both value, quantity, and quality, and 
that the profit or fee objective should reflect the extent and nature of 
the contractor's contribution to total performance. Greater profit 
opportunity should be provided under contracts requiring a high degree 
of professional and managerial skill and to prospective contractors 
whose skills, facilities, and technical assets can be expected to lead 
to efficient and economical contract performance. The evaluation of this 
factor requires an analysis of the cost content of the proposed contract 
as follows:
    (i) Direct material (purchased parts and other material). (A) 
Analysis of these cost items shall include an evaluation of the 
managerial and technical effort necessary to obtain the required 
material. This evaluation shall include consideration of the number of 
orders and suppliers, and whether established sources are available or 
new sources must be developed. The contracting officer shall also 
determine whether the contractor will, for example, obtain the materials 
by routine orders or readily available supplies (particularly those of 
substantial value in relation to the total contract costs), or by 
detailed subcontracts for which the prime contractor will be required to 
develop complex specifications involving creative design.
    (B) Consideration should be given to the managerial and technical 
efforts necessary for the prime contractor to administer subcontracts, 
and to select subcontractors, including efforts to break out 
subcontracts from sole sources, through the introduction of competition.
    (C) Recognized costs proposed as direct material costs such as scrap 
charges shall be treated as material for profit evaluation.
    (D) If intracompany transfers are accepted at price, in accordance 
with FAR 31.205-26(e), they should be excluded from the profit or fee 
computation. Other intracompany transfers shall be evaluated by 
individual components of cost, i.e., material, labor, and overhead.
    (ii) Professional/technical and general labor. Analysis of labor 
should include evaluation of the comparative quality and level of the 
talents and experience to be employed. In evaluating labor for the 
purpose of assigning profit dollars, consideration should be given to 
the amount of notable scientific talent or unusual or scarce talent 
needed, in contrast to journeyman effort or supporting personnel. The 
diversity, or lack thereof, of scientific and engineering specialties 
required for contract performance, and the corresponding need for 
supervision and coordination, should also be evaluated.
    (iii) Overhead and general and administrative expenses. (A) Where 
practicable, analysis of these overhead items of cost should include the 
evaluation of the individual elements of these expenses, and how much 
they contribute to contract performance. This analysis should include a 
determination of the amount of labor within these overhead pools, and 
how this labor would be treated if it were considered as direct labor 
under the contract. The allocable labor elements should be given the 
same profit consideration as if they were direct labor. The other 
elements of indirect cost pools should be evaluated to determine whether 
they are routine expenses such as utilities, depreciation, and 
maintenance, and therefore given less profit consideration.
    (B) The contractor's accounting system need not break down its 
overhead

[[Page 29]]

expenses within the classification of professional/technical overhead, 
general overhead and general and administrative expenses.
    (iv) Subcontractors. (A) Subcontract costs should be analyzed from 
the standpoint of the talents and skills of the subcontractors. The 
analysis should consider if the prime contractor normally should be 
expected to have people with comparable expertise employed as full-time 
staff, or if the contract requires skills not normally available in an 
employer-employee relationship. Where the prime contractor is using 
subcontractors to perform labor which would normally be expected to be 
done in-house, the rating factor should generally be at or near 1 
percent. Where exceptional expertise is retained, or the prime 
contractor is participating in the mentor-protege program, the assigned 
weight should be nearer to the high end of the range.
    (v) Other direct costs. The analysis of these costs should be 
similar to the analysis of direct material.
    (3) Contractor's assumption of contract cost risk. (i) The risk of 
contract costs should be shifted to the fullest extent practicable to 
contractors, and the Government should assign a rating that reflects the 
degree of risk assumption. Evaluation of this risk requires a 
determination of the degree of cost responsibility the contractor 
assumes, the reliability of the cost estimates in relation to the task 
assumed, and the chance of the contractor's success or failure. This 
factor is specifically limited to the risk of contract costs. Thus, such 
risks of losing potential profits in other fields are not within the 
scope of this factor.
    (ii) The first determination of the degree of cost responsibility 
assumed by the contractor is related to the sharing of total risk of 
contract cost by the Government and the contractor, depending on 
selection of contract type. The extremes are a cost-plus-fixed-fee 
contract requiring only that the contractor use its best efforts to 
perform a task, and a firm-fixed-price contract for a complex item. A 
cost-plus-fixed-fee contract would reflect a minimum assumption of cost 
responsibility by the contractor, whereas a firm-fixed-price contract 
would reflect a complete assumption of cost responsibility by the 
contractor. Therefore, in the first step of determining the value given 
for the contractor's assumption of contract cost risk, a lower rating 
would be assigned to a proposed cost-plus-fixed-fee best efforts 
contract, and a higher rating would be assigned to a firm-fixed-price 
contract.
    (iii) The second determination is that of the reliability of the 
cost estimates. Sound price negotiation requires well-defined contract 
objectives and reliable cost estimates. An excessive cost estimate 
reduces the possibility that the cost of performance will exceed the 
contract price, thereby reducing the contractor's assumption of contract 
cost risk.
    (iv) The third determination is that of the difficulty of the 
contractor's task. The contractor's task may be difficult or easy, 
regardless of the type of contract.
    (v) Contractors are likely to assume greater cost risks only if the 
contracting officer objectively analyzes the risk incident to the 
proposed contract, and is willing to compensate contractors for it. 
Generally, a cost-plus-fixed-fee contract would not justify a reward for 
risk in excess of 1 percent, nor would a firm-fixed-price contract 
normally justify a reward of less than 4 percent. Where proper contract 
type selection has been made, the reward for risk by contract type would 
usually fall into the following percentage ranges:

------------------------------------------------------------------------
              Type of contract                    Percentage ranges
------------------------------------------------------------------------
Cost-plus-fixed-fee........................  0 to 1.
Prospective price determination............  4 to 5.
Firm-fixed-price...........................  4 to 6.
------------------------------------------------------------------------

    (A) These ranges may not be appropriate for all acquisitions. The 
contracting officer might determine that a basis exists for high 
confidence in the reasonableness of the estimate, and that little 
opportunity exists for cost reduction without extraordinary efforts. The 
contractor's willingness to accept ceilings on their burden rates should 
be considered as a risk factor for cost-plus-fixed-fee contracts.

[[Page 30]]

    (B) In making a contract cost risk evaluation in an acquisition that 
involves definitization of a letter contract, consideration should be 
given to the effect on total contract cost risk as a result of partial 
performance under a letter contract. Under some circumstances, the total 
amount of cost risk may have been effectively reduced by the existence 
of a letter contract. Under other circumstances, it may be apparent that 
the contractor's cost risk remained substantially as great as though a 
letter contract had not been used. Where a contractor has begun work 
under an anticipatory cost letter, the risk assumed is greater than 
normal. To be equitable, the determination of a profit weight for 
application to the total of all recognized costs, both those incurred 
and those yet to be expended, must be made with consideration to all 
relevant circumstances, not just to the portion of costs incurred or 
percentage of work completed prior to definitization.



1515.404-472  Other methods.

    (a) Contracting officers may use methods other than those prescribed 
in 1515.404-470 for establishing profit or fee objectives under the 
following types of contracts and circumstances:
    (1) Architect-engineering contracts;
    (2) Personal service contracts;
    (3) Management contracts, e.g., for maintenance or operation of 
Government facilities;
    (4) Termination settlements;
    (5) Services under labor-hour and time and material contracts which 
provide for payment on an hourly, daily, or monthly basis, and where the 
contractor's contribution constitutes the furnishing of personnel.
    (6) Construction contracts; and
    (7) Cost-plus-award-fee contracts.
    (b) Generally, it is expected that such methods will:
    (1) Provide the contracting officer with a technique that will 
ensure consideration of the relative value of the appropriate profit 
factors described under ``Profit Factors,'' in FAR 15.404-4(d) and
    (2) Serve as a basis for documentation of the profit or fee 
objective.



1515.404-473  Limitations.

    (a) In addition to the limitations established by statute (see FAR 
15.404-4(b)(4)(i)), no administrative ceilings on profits or fees shall 
be established, except those identified in EPAAR (48 CFR) 1516.404-
273(b).
    (b) The contracting officer shall not consider any known 
subcontractor profit/fee as part of the basis for determining the 
contractor profit/fee.



1515.404-474  Waivers.

    Under unusual circumstances, the SCM may specifically waive the 
requirement for the use of the guidelines. Such exceptions shall be 
justified in writing, and authorized only in situations where the 
guidelines method is unsuitable.

[64 FR 47410, Aug. 31, 1999, as amended at 67 FR 5072, Feb. 4, 2002]



1515.404-475  Cost realism.

    The EPA structured approach is not required when the contracting 
officer is evaluating cost realism in a competitive acquisition.



1515.408  Solicitation provisions and contract clauses.

    (a) In addition to those provisions and clauses prescribed in FAR 
15.408, when an exception to FAR 15.403-1 does not apply and no other 
means available can be used to ascertain whether a fair and reasonable 
price can be determined, the contracting officer may insert in 
negotiated solicitations the provisions at--
    (1) 1552.215-72 when requesting information other than cost or 
pricing data, for cost-reimbursable, level-of-effort-contracts. Use 
Alternate I for cost-reimbursable, level-of-effort contracts when the 
Government's requirement is for fully dedicated staff for a twelve month 
period(s) of performance and performance is on a Government facility; 
Alternate II for acquisitions for cost-reimbursable, level-of-effort 
contracts when the Government's requirement is for fully dedicated staff 
for a twelve month period(s) of performance and performance is not on a 
Government facility; and Alternate III if the Government's requirement 
is for the acquisition of supplies or equipment.

[[Page 31]]

The contracting officer may make revisions, deletions, or additions to 
1552.215-72 and its Alternates I-III as needed to fit an individual 
acquisition, and
    (2) 1552.215-73, General Financial and Organizational Information.
    (b) If uncompensated overtime is proposed, the resultant contract 
shall include the provisions at FAR 52.237-10 and include the provision 
at 1552.215-74. The contracting officer may use provisions substantially 
the same as 1552.215-74 without requesting a deviation to the EPAAR.



                  Subpart 1515.6--Unsolicited Proposals



1515.604  Agency points of contact.

    The Director, Grants Administration Division (3903R), EPA, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, is the Agency contact 
point established to coordinate the receipt and handling of unsolicited 
proposals.

[64 FR 47410, Aug. 31, 1999, 65 FR 47325, Aug. 2, 2000]



1515.606-70  Contracting methods.

    The Department of Housing and Urban Development-Independent Agencies 
Appropriation Act contains a requirement that none of the funds provided 
in the Act may be used for payment through grants or contracts to 
recipients that do not share in the cost of conducting research 
resulting from proposals that are not specifically solicited by the 
Government. Accordingly, contracts for research which result from 
unsolicited proposals shall provide for the contractor to bear a portion 
of the cost of performance for work subject to the Act. The extent of 
the cost sharing shall reflect the mutuality of interest of the 
contractor and the Government. Therefore, where there is no measurable 
gain to the performing organization, cost sharing is not required.



PART 1516--TYPES OF CONTRACTS--Table of Contents




              Subpart 1516.3--Cost-Reimbursement Contracts

Sec.
1516.301-70 Payment of fee.
1516.303 Cost-sharing contracts.
1516.303-71 Definition.
1516.303-72 Policy.
1516.303-73 Types of cost-sharing.
1516.303-74 Determining the value of in-kind contributions.
1516.303-75 Amount of cost-sharing.
1516.303-76 Fee on cost-sharing contracts by subcontractors.
1516.303-77 Administrative requirements.
1516.307 Contract clauses.
1516.370 Solicitation provision.

                   Subpart 1516.4--Incentive Contracts

1516.404-2 Cost-plus-award-fee contracts.
1516.404-272 Definitions.
1516.404-273 Limitations.
1516.404-274 Waiver.
1516.405 Contract clauses.

              Subpart 1516.5--Indefinite-Delivery Contracts

1516.505 Contract clauses.

  Subpart 1516.6--Time-and-Materials, Labor-Hour, and Letter Contracts

1516.603 Letter Contracts.
1516.603-1 What is a Notice to Proceed?
1516.603-2 What are the requirements for use of an NTP?
1516.603-3 Limitations.

    Authority: The provisions of this regulation are issued under 5 
U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 
41 U.S.C. 418b.

    Source: 49 FR 8852, Mar. 8, 1984, unless otherwise noted.



              Subpart 1516.3--Cost-Reimbursement Contracts



1516.301-70  Payment of fee.

    The policy of EPA for cost-reimbursement, term form contracts is to 
make provisional payment of fee (i.e. the fixed fee on cost-plus-fixed-
fee type contracts or the base fee on cost-plus-award-fee type 
contracts) on a percentage of work completed basis, when such a method 
will not prove detrimental to proper contract performance. Percentage of 
work completed is the ratio of the direct labor hours performed in 
relation to the direct labor hours set forth in the contract in clause 
1552.212-70, ``Level of Effort--Cost Reimbursement Term Contract.'' 
Provisional payment of fee will remain subject to

[[Page 32]]

withholding provisions, such as 48 CFR 52.216-8, Fixed Fee.

[56 FR 43711, Sept. 4, 1991]



1516.303  Cost-sharing contracts.



1516.303-71  Definition.

    Cost-sharing is a generic term denoting any situation where the 
Government does not fully reimburse a contractor for all allowable costs 
necessary to accomplish the project under the contract. This term 
encompasses cost-matching and cost-limitations, in addition to cost-
sharing. Cost-sharing does not include usual contractual limitations 
such as indirect cost ceilings in accordance with FAR 42.707, or 
ceilings on travel or other direct costs. Cost-sharing contracts may be 
required as a result of Congressional mandate.

[61 FR 14504, Apr. 2, 1996]



1516.303-72  Policy.

    (a) The Agency shall use cost-sharing contracts where the principal 
purpose is ultimate commercialization and utilization of technologies by 
the private sector. There should also be a reasonable expectation of 
future economic benefits for the contractor and the Government beyond 
the Government's contract.
    (b) Cost-sharing may be accomplished by a contribution to either 
direct or indirect costs, provided such costs are reasonable, allocable 
and allowable in accordance with the cost principles of the contract. 
Allowable costs which are absorbed by the contractor as its share of 
contract costs may not be charged directly or indirectly to the Agency 
or the Federal Government.
    (c) Unsolicited proposals will be considered on a case-by-case basis 
by the Contracting Officer as to the appropriateness of cost-sharing.

[61 FR 14504, Apr. 2, 1996]



1516.303-73  Types of cost-sharing.

    (a) Cost-sharing may be accomplished in various forms or 
combinations. These include, but are not limited to: cash outlays, real 
property or interest therein, personal property or services, cost 
matching, or other in-kind contributions.
    (b) In-kind contributions represent non-cash contributions provided 
by the performing contractor which would normally be a charge against 
the contract. While in-kind contributions are an acceptable method of 
cost-sharing, should the booked costs of property appear unrealistic, 
the fair market value of the property shall be determined pursuant to 
1516.303-74 of this chapter.
    (c) In-kind contributions may be in the form of personal property 
(equipment or supplies) or services which are directly beneficial, 
specifically identifiable and necessary for the performance of the 
contract. In-kind contributions must meet all of the following criteria 
before acceptance.
    (1) Be verifiable from the contractor's books and records;
    (2) Not be included as contributions under any other Federal 
contract;
    (3) Be necessary to accomplish project objectives;
    (4) Provide for types of charges that would otherwise be allowable 
under applicable Federal cost principles appropriate to the contractor's 
organization; and
    (5) Not be paid for by the Federal Government under any contract, 
agreement or grant.

[61 FR 14504, Apr. 2, 1996]



1516.303-74  Determining the value of in-kind contributions.

    In-kind contributions accepted from a contractor will be addressed 
on a case-by-case basis provided the established values do not exceed 
fair market values.
    (a) Where the Agency receives title to donated land, building, 
equipment or supplies and the property is not fully consumed during 
performance of the contract, the Contracting Officer should establish 
the property's value based on the contractor's booked costs (i.e., 
acquisition cost less depreciation, if any) at the time of donation. If 
the booked costs reflect unrealistic values when compared to current 
market conditions, the Contracting Officer may establish another 
appropriate value if supported by an independent appraisal of the fair 
market value of the donated property or property in similar condition 
and circumstances.

[[Page 33]]

    (b) The Contracting Officer will monitor reports of in-kind costs as 
they are incurred or recognized during the contract period of 
performance to determine that the value of in-kind services does not 
exceed fair market values.
    (c) The value of any services or the use of personal or real 
property donated by a contractor should be established when necessary in 
accordance with generally accepted accounting policies and Federal cost 
principles.

[61 FR 14505, Apr. 2, 1996]



1516.303-75  Amount of cost-sharing.

    (a) Contractors should contribute a reasonable amount of the total 
project cost covered under the contract. The ratio of cost participation 
should correlate to the apparent advantages available to performers and 
the proximity of implementing commercialization, i.e., the higher the 
potential for future profits, the higher the contractor's share should 
be.
    (b) Fee will not be paid to the contractor or any member of the 
contractor team (subcontractors and consultants) which has a substantial 
and direct interest in the contract, or is in a position to gain long 
term benefits from the contract. A vulnerability the Contracting Officer 
should consider in reviewing a prime contractor's request for consent to 
subcontract is whether subcontractors under prime cost-sharing contracts 
have a significant direct interest in the contract to gain long-term 
benefits from the contract.
    (c) The Contracting Officer, with the input of technical experts, 
may consider the following factors in determining reasonable levels of 
cost sharing:
    (1) The availability of the technology to competitors;
    (2) Improvements in the contractor's market share position;
    (3) The time and risk necessary to achieve success;
    (4) If the results of the project involve patent rights which could 
be sold or licensed;
    (5) If the contractor has non-Federal sources of funds to include as 
cost participation; and
    (6) If the contractor has the production and other capabilities to 
capitalize the results of the project.
    (d) A contractor's cost participation can be provided by other 
subcontractors with which it has contractual arrangements to perform the 
contract as long as the contractor's cost-sharing goal is met.

[61 FR 14505, Apr. 2, 1996]



1516.303-76  Fee on cost-sharing contracts by subcontractors.

    (a) Subcontractors under prime cost-sharing contracts who do not 
have a significant direct interest in the contract or who are not in a 
position to gain long-term benefits from the contract may earn a fee.
    (b) Contracting Officers should be alert to a potential 
vulnerability for the Government under cost-sharing contracts when 
evaluating proposed subcontractors or consenting to a subcontract during 
contract administration, where the subcontractor is a wholly-owned 
subsidiary of the prime. The vulnerability consists of the subsidiary 
earning a large amount of fee, which could be returned to the prime 
through stock dividends or other intercompany transactions. This could 
circumvent the objective of a cost-sharing contract.

[61 FR 14505, Apr. 2, 1996]



1516.303-77  Administrative requirements.

    (a) The initial Procurement Request shall reflect the total 
estimated cost of the cost-sharing contract. The face page of the 
contract award shall indicate the total estimated cost of the contract, 
the Contractor's share of the cost, and the Government's share of the 
cost.
    (b) The manner of cost-sharing and how it is to be accomplished 
shall be set forth in the contract. Additionally, contracts which 
provide for cost-sharing shall require the contractor to maintain 
records adequate to reflect the nature and extent of their cost-sharing 
as well as those costs charged the Agency. Such records may be subject 
to an Agency audit.

[61 FR 14505, Apr. 2, 1996]



1516.307  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-71, 
Date of

[[Page 34]]

Incurrence of Cost, in cost-reimbursement contracts when an anticipatory 
cost letter has been issued on the project.
    (b) The Contracting Officer shall insert the clause at 1552.216-74, 
Payment of Fee, in solicitations and contracts where a cost-
reimbursement term form contract is contemplated, unless the Contracting 
Officer determines that such a provision would be detrimental to 
ensuring proper contract performance.
    (c) The Contracting Officer shall insert a clause substantially the 
same as 48 CFR 1552.216-76, Estimated Cost and Cost-Sharing, in 
solicitations and contracts where the total incurred costs are shared by 
the contractor on a straight percentage basis. The Contracting Officer 
may develop other clauses, as appropriate, following the same approach, 
but reflecting different cost-sharing arrangements negotiated on 
specific contract actions.

[49 FR 8852, Mar. 8, 1984, as amended at 56 FR 43711, Sept. 4, 1991; 61 
FR 14505, Apr. 2, 1996; 61 FR 57338, Nov. 6, 1996]



1516.370  Solicitation provision.

    The solicitation document shall state whether any cost-sharing is 
required, and may set forth a target level of cost-sharing. Although 
technical considerations are normally most important, the degree of 
cost-sharing may be considered in a selection decision when cost becomes 
a determinative factor in a selection decision.

[61 FR 14505, Apr. 2, 1996]



                   Subpart 1516.4--Incentive Contracts



1516.404-2  Cost-plus-award-fee contracts.



1516.404-272  Definitions.

    (a) Performance Evaluation Board (PEB). Group of Government 
officials responsible for assessing the quality of contract performance 
and recommending the appropriate fee.
    (b) Fee Determination Official. Individual responsible for reviewing 
the recommendations of the PEB and making the final determination of the 
amount of award fee to be awarded to the contractor.

[60 FR 43404, Aug. 21, 1995]



1516.404-273  Limitations.

    (a) No award fee may be earned if the Fee Determination Official 
determines that contractor performance has been satisfactory or less 
than satisfactory. A contractor may earn award fee only for performance 
rated above satisfactory or excellent. All award fee plans shall 
disclose to offerors the numerical rating necessary to be deemed ``above 
satisfactory'' or ``excellent'' for award fee purposes.
    (b) The base fee shall not exceed three percent of the estimated 
cost of the contract, exclusive of the fee.
    (c) Unearned award fee may not be carried forward from one 
performance period into a subsequent performance period unless approved 
by the FDO.
    (d) The payment of award fee on a provisional basis is not 
authorized.

[60 FR 43404, Aug. 21, 1995]



1516.404-274  Waiver.

    The Chief of the Contracting Office may waive the limitations in 
paragraphs (a), (b), and (d) of 1516.404-273 on a case-by-case basis 
when unusual or compelling circumstances exist. The waiver shall be 
supported by a justification and coordinated with the Procurement Policy 
Branch in the Office of Acquisition Management.

[60 FR 43404, Aug. 21, 1995]



1516.405  Contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.216-70, 
Award fee (May 2000), in solicitations and contracts where a cost-plus-
award-fee contract is contemplated.
    (b) The Contracting Officer shall insert the clause at 1552.216-75, 
Base Fee and Award Fee Proposal (SEPT 1995), in all solicitations which 
contemplate the award of cost-plus-award-fee contracts. The Contracting 
Officer shall insert the appropriate percentages.

[60 FR 43404, Aug. 21, 1995, as amended at 64 FR 3876, Jan. 26, 1999; 65 
FR 31500, May 18, 2000]

[[Page 35]]



              Subpart 1516.5--Indefinite-Delivery Contracts



1516.505  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-72, 
Ordering--By Designated Ordering Officers, in indefinite delivery/
indefinite quantity type solicitations and contracts.
    (b) The Contracting Officer shall insert the clause in 1552.216-73, 
Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
Contract, in solicitations and contracts to specify fixed rates for 
services.



  Subpart 1516.6--Time-and-Materials, Labor-Hour, and Letter Contracts



1516.603  Letter Contracts.



1516.603-1  What is a Notice to Proceed?

    (a) A Notice to Proceed (NTP) is a type of letter contract issued 
pursuant to FAR 16.603 under which an EPA Federal Classification Series 
1102 (FCS) contracting officer or a duly authorized EPA on-scene 
coordinator with delegated procurement authority may initiate, in 
certain defined situations and subject to certain limitations and 
conditions, contracting actions to respond to certain situations as 
described in CERCLA section 104(a)(1) (42 U.S.C. 9604(a)(1)) and the 
Clean Water Act sections 311(c)(2) and (e)(1)(B) (33 U.S.C. 1321(c)(2) 
and (e)(1)(B)). An NTP may be utilized as a contractual instrument for 
certain--
    (1) Actions that EPA is authorized to undertake under CERCLA section 
104(a)(1), 42 U.S.C. 9604(a)(1), and the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300), to respond to 
situations where any hazardous substance has been released or there is a 
substantial threat of such a release into the environment, or there is a 
release or substantial threat of release into the environment of any 
pollutant or contaminant which may present an imminent and substantial 
danger to the public health or welfare, and
    (2) Actions that EPA is authorized to undertake under sections 
311(c)(2) and (e)(1)(B) of the Clean Water Act, 33 U.S.C. 1321(c)(2) and 
(e)(1)(B), and the National Oil and Hazardous Substances Pollution 
Contingency Plan (40 CFR part 300), to respond when there is a 
discharge, or a substantial threat of a discharge (to or upon navigable 
waters, adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, onshore 
facility, or offshore facility that is a substantial threat to the 
public health or welfare. Pursuant to a class Justification For Other 
Than Full and Open Competition executed under the authority of FAR 
6.302-2 and 6.303-1(c), an NTP may be issued on a non-competitive basis.
    (b) What do subsections 1516.603-1 and 1516.603-2 cover? EPAAR 
1516.603-1 and 1516.603-2 contain information and procedures relating to 
issuance and definitization of an NTP. An NTP is subject to, and must 
comply with, the applicable requirements for letter contracts in FAR 
16.603 and the requirements in this section, and be definitized by an 
EPA FCS 1102 contracting officer.

[66 FR 12900, Mar. 1, 2001]



1516.603-2  What are the requirements for use of an NTP?

    (a) An EPA FCS 1102 contracting officer or a duly authorized EPA on-
scene coordinator with a delegation of procurement authority may issue 
an NTP so long as it does not exceed the limits of his or her 
procurement authority and only when all of the following conditions have 
been met:
    (1) A written determination has been made by the Federal on-scene 
coordinator that--
    (i) As authorized by and consistent with CERCLA section 104(a)(1), 
42 U.S.C. 9604(a)(1), and the National Oil and Hazardous Substances 
Pollution Contingency Plan (40 CFR part 300), the EPA must take action 
to respond to a hazardous substance release or substantial threat of 
such a release into the environment, or a release or substantial threat 
of a release into the environment of any pollutant or contaminant which 
may present an imminent and substantial danger to the public health or 
welfare, or

[[Page 36]]

    (ii) As authorized by and consistent with the Clean Water Act 
sections 311(c)(2) and (e)(1)(B), 33 U.S.C. 1321(c)(2) and (e)(1)(B), 
and the National Oil and Hazardous Substances Pollution Contingency Plan 
(40 CFR part 300), the EPA must take action to respond to a discharge, 
or a substantial threat of a discharge (to or upon navigable waters, 
adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, offshore 
facility, or onshore facility that is of such a size and character as to 
pose a substantial threat to the public health or welfare of the United 
States; and
    (2) Before a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority may issue an NTP, he or she must 
confirm that an EPA FCS 1102 contracting officer is not available to 
provide the required contracting support by the time the Federal on-
scene coordinator requires the response action to be undertaken; and
    (3) A written determination is made by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority that there is no other existing contracting 
mechanism available to provide the required contracting support by the 
time required, including the inability of an existing emergency response 
contractor or other existing contract vehicle to respond in the required 
time frame. These conditions, as well as any other requirements 
applicable to NTPs or letter contracts contained in the FAR or EPAAR , 
must be met before an NTP can be issued by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority.
    (b) What should be included in an NTP? (1) Since an NTP is a type of 
letter contract, it is subject to the requirements of FAR 16.603. All of 
the relevant requirements of FAR 16.603 apply to NTP's including FAR 
16.603-2, 16.603-3, and 16.603-4, and an NTP will include all 
appropriate FAR and EPAAR contract clauses. An NTP should also include 
an overall price ceiling and be as complete and definite as possible 
under the circumstances. To the extent NTPs require modification of any 
FAR or EPAAR prescribed procedures or clauses, an appropriate FAR or 
EPAAR deviation will be prepared.
    (2) The EPA FCS 1102 contracting officer or duly authorized EPA on-
scene coordinator with a delegation of procurement authority shall 
include in each NTP the clauses required by the FAR or EPAAR for the 
type of definitive contract contemplated and any additional clauses 
known to be appropriate for it. In addition, the following clauses must 
be inserted in the solicitation (if one is issued) and the NTP when an 
NTP is used:
    (i) The clause at FAR 52.216-23, Execution and Commencement of Work, 
except that the term on-scene coordinator may be used in place of the 
term contracting officer;
    (ii) The clause at FAR 52.216-24, Limitation of Government 
Liability, with dollar amounts completed in a manner consistent with FAR 
16.603-2(d); and
    (iii) The clause at FAR 52.216-25, Contract Definitization, with its 
paragraph (b) completed in a manner consistent with FAR 16.603-2(c) or 
any applicable FAR deviation. The clause at FAR 52.216-26, Payment of 
Allowable Costs Before Definitization, shall also be included in a 
solicitation (if one is issued) and NTPs if a cost-reimbursement 
definitive contract is contemplated.
    (3) Each NTP shall, as required by the clause at FAR 52.216-25, 
Contract Definitization, contain a negotiated definitization schedule 
that includes:
    (i) Dates for submission of the contractor's price proposal, 
required cost and pricing data, and if required, make-or-buy and 
subcontracting plans;
    (ii) The date for the start of negotiations; and
    (iii) A target date for definitization which shall be the earliest 
practicable date for definitization (an NTP must be definitized by an 
EPA FCS 1102 contracting officer). The schedule will provide for 
definitization of the NTP within 90 calendar days after the date of the 
NTP award. However, the EPA FCS 1102 contracting officer may, in extreme 
cases and according to agency

[[Page 37]]

procedures, authorize an additional period. If, after exhausting all 
reasonable efforts, the EPA FCS 1102 contracting officer and the 
contractor cannot negotiate a definitive contract because of failure to 
reach agreement as to price or fee, the clause at 52.216-25 requires the 
contractor to proceed with the work and provides that the contracting 
officer may, with the approval of the head of the contracting activity, 
determine a reasonable price or fee in accordance with subpart 15.4 and 
part 31 of the FAR, subject to appeal as provided in the Disputes 
clause.
    (4) The maximum liability of the Government inserted in the clause 
at 52.216-24, Limitation of Government Liability, shall, as approved by 
the official who authorized the NTP, be the estimated amount necessary 
to cover the contractor's requirements for funds to complete the work to 
be performed under the NTP. However, it shall not exceed the estimated 
cost of the definitive contract.
    (c) Are there any financial or monetary limitations on the use of an 
NTP? In addition to the requirements for issuance of an NTP set forth 
elsewhere in this subpart--
    (1) The total definitized dollar value of an individual NTP shall 
not exceed $200,000.00, and
    (2) The applicable Program Office must commit and make available 
appropriate funding for the emergency response action taken under the 
NTP prior to NTP issuance.
    (d) Are there any other procedural requirements for issuance of an 
NTP? An NTP must be issued in writing by the EPA FCS 1102 contracting 
officer or the duly authorized EPA on-scene coordinator with a 
delegation of procurement authority using a Standard Form 33. In 
addition, the EPA FCS 1102 contracting officer or the EPA on-scene 
coordinator awarding the NTP must ensure that the NTP complies with all 
applicable requirements for letter contracts set forth in the FAR and 
the requirements of this section, includes all relevant provisions and 
clauses, and that all actual or potential conflict of interest or other 
contracting issues are identified and resolved prior to NTP issuance. To 
assist the EPA on-scene coordinator and EPA FCS 1102 contracting officer 
in their responsibilities regarding NTP award, an NTP checklist will be 
completed by the EPA FCS 1102 contracting officer or EPA on-scene 
coordinator prior to issuance of the NTP.
    (e) What happens after an NTP is awarded to a contractor? (1) If an 
NTP is issued by a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority, he or she must notify the cognizant 
EPA FCS 1102 contracting officer of the NTP award, and provide the NTP 
checklist to the contracting officer, as soon as possible but in no 
event later than the next working day after NTP issuance.
    (2) Within 5 working days of the EPA on-scene coordinator's award of 
an NTP, the on-scene coordinator shall provide to the cognizant EPA FCS 
1102 contracting officer all NTP documents, materials, and information 
necessary for the contracting officer to definitize the contract, and 
should retain a copy for his/her records. An EPA FCS 1102 contracting 
officer will be responsible for definitization of the NTP consistent 
with the definitization procedures set forth in this subpart. During the 
process of definitizing the NTP, the EPA FCS 1102 contracting officer 
will send the contractor the ``Representations, Certifications, and 
Other Statements of Offerors'' for completion. The contractor will 
complete this information, and any other required information, and 
submit it to the EPA FCS 1102 contracting officer prior to 
definitization of the NTP.
    (f) The CCO, who is authorized by EPAAR 1516.603-3 to make the 
determination to use a letter contract, shall make a class determination 
and findings authorizing EPA FCS 1102 contracting officers and duly 
authorized EPA on-scene coordinators with delegations of procurement 
authority to award NTPs pursuant to the conditions set forth in this 
subpart.

[66 FR 12900, Mar. 1, 2001]



1516.603-3  Limitations.

    The CCO is authorized to make the determination in FAR 16.603-3.

[55 FR 24580, June 18, 1990, as amended at 59 FR 18976, Apr. 21, 1994]

[[Page 38]]



PART 1517--SPECIAL CONTRACTING METHODS--Table of Contents




                         Subpart 1517.2--Options

Sec.
1517.204 Contracts.
1517.207 Exercise of options.
1517.208 Solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8854, Mar. 8, 1984, unless otherwise noted.



                         Subpart 1517.2--Options



1517.204  Contracts.

    The SCM may approve a contract with a base contract period and 
option periods which total in excess of five (5) years, unless otherwise 
prohibited by statute.

[60 FR 12713, Mar. 8, 1995, as amended at 67 FR 5072, Feb. 4, 2002]



1517.207  Exercise of options.

    (a) Unless otherwise approved by the Chief of the Contracting 
Office, contracts for services employing option periods shall require 
that a preliminary written notice of the Government's intention to 
exercise the option be furnished to the Contractor a minimum of sixty 
(60) calendar days prior to the date for the exercise of the option. 
Failure to provide such preliminary notice within the timeframe 
established in the contract waives the Government's right to 
unilaterally exercise the option and requires the negotiation of a 
bilateral contract modification in order to extend the period of 
performance, where such an extension is authorized.
    (b) When the term of the service contract coincides with the fiscal 
year and delays in receipt of authority to obligate funds for the new 
fiscal year are anticipated, the Contracting Officer, if the contract so 
provides (see FAR 17.204(d)), may, within 60 days after the end of the 
fiscal year, unilaterally exercise an option to extend the term of the 
contract. The option may be exercised only if funds become available 
within the 60-day period. In the event that sufficient funding is not 
available within the 60 day period, the Government waives the right to 
exercise the option, thereby rendering any additional requirements 
subject to full and open competition requirements.
    (c) The Contracting Officer, if the contract so provides, may, 
subject to the conditions in FAR 17.204(d), 32.703-2, and 32.705-1(a), 
exercise an option contingent upon the availability of funds. To 
exercise such an option, the contract must contain the clause in FAR 
52.232-18, 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 Government until a formal notice of availability of 
funds in the form of a contract modification has been issued by the 
Contracting Officer.

[49 FR 8854, Mar. 8, 1984, as amended at 50 FR 14359, Apr. 11, 1985]



1517.208  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.217-71, 
Option To Extend the Term of the Contract--Cost-Type Contract, when 
applicable.
    (b) The Contracting Officer shall insert the clause at 1552.217-72, 
Option To Extend the Term of the Contract--Cost-Plus-Award-Fee Contract, 
when applicable.
    (c) The Contracting Officer shall insert the clause at 1552.217-73, 
Option for Increased Quantity--Cost-Type Contract, when applicable.
    (d) The Contracting Officer shall insert the clause at 1552.217-74, 
Option for Increased Quantity--Cost-Plus-Award-Fee Contract, when 
applicable.
    (e) The Contracting Officer shall insert the clause at 1552.217-75, 
Option To Extend the Effective Period of the Contract--Time and 
Materials or Labor Hour Contract, when applicable.
    (f) The Contracting Officer shall insert the clause at 1552.217-76, 
Option To Extend the Effective Period of the Contract--Indefinite 
Delivery/Indefinite Quantity Contract, when applicable.
    (g) The Contracting officer shall insert the clause at 1552.217-77, 
Option to Extend the Term of the Contract--Fixed Price, when applicable.

[49 FR 8854, Mar. 8, 1984, as amended at 65 FR 58923, Oct. 3, 2000]

[[Page 39]]



                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS



PART 1519--SMALL BUSINESS PROGRAMS--Table of Contents




                        Subpart 1519.2--Policies

Sec.
1519.201 Policy.
1519.201-71 Director of Small and Disadvantaged Business Utilization.
1519.201-72 Small and disadvantaged business utilization specialists.
1519.202-5 Data collection and reporting requirements.
1519.203 Mentor-protege.
1519.204 Small disadvantaged business participation.

              Subpart 1519.5--Set-Asides for Small Business

1519.501 Review of acquisitions.
1519.503 Class set-aside for construction.

Subpart 1519.6--Certificates of Competency and Determinations of 
Eligibility [Reserved]

      Subpart 1519.7--Subcontracting with Small Business and Small 
                     Disadvantaged Business Concerns

1519.705-2 Determining the need for a subcontract plan.
1519.705-4 Reviewing the subcontracting plan.
1519.705-70 Synopsis of contracts containing Pub. L. 95-507 
          subcontracting plans and goals.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8855, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1519 appear at 61 FR 
57338, Nov. 6, 1996.



                        Subpart 1519.2--Policies



1519.201  Policy.

    Each program's Assistant or Associate Administrator shall be 
responsible for developing its socioeconomic goals on a fiscal year 
basis. The goals shall be developed in collaboration with the supporting 
Chiefs of Contracting Offices and the local Small Business Specialist 
(SBS), and the Office of Small and Disadvantaged Business Utilization 
(OSDBU). The goals will be based on advance procurement plans and past 
performance. The goals shall be submitted to the Director, OSDBU, at 
least thirty (30) days prior to the start of the fiscal year.

[49 FR 8855, Mar. 8, 1984, as amended at 61 FR 57338, 57339, Nov. 6, 
1996]



1519.201-71  Director of Small and Disadvantaged Business Utilization.

    The Director, OSDBU, provides guidance and advice, as appropriate, 
to Agency program and contracts officials on small and small 
disadvantaged business programs. The Director, OSDBU, is the central 
point of contact for inquiries concerning the small and disadvantaged 
business programs from industry, the Small Business Administration 
(SBA), and the Congress, and shall advise the Administrator and staff of 
such inquiries as required. The Director, OSDBU, shall represent the 
Agency in the negotiations with the other Government agencies on small 
and small disadvantaged business matters.

[49 FR 8855, Mar. 8, 1984. Redesignated at 62 FR 57338, 57339, Nov. 6, 
1997]



1519.201-72  Small and disadvantaged business utilization specialists.

    (a) Small Business Specialists (SBS) shall be appointed in writing 
for each contracting office. The SBS will normally be appointed from 
members of staffs of the appointing authority. The SBS is 
administratively responsible directly to the appointing authority and, 
on matters relating to small and small disadvantaged business program 
activities, receives technical guidance from the Director, OSDBU. The 
appointing authorities are the Chiefs of the Contracting Offices.
    (b) A copy of each appointment and termination of all SBS 
specialists shall be forwarded to the Director, OSDBU. In addition to 
performing the duties outlined in paragraph (c) of this section that are 
normally performed in the activity to which assigned, the SBS shall 
perform such additional functions as may be prescribed from time to time 
in furtherance of overall small and

[[Page 40]]

small disadvantaged business utilization program goals. The SBS may be 
appointed on either a full- or part-time basis; however, when appointed 
on a part-time basis, the small business duty shall take precedence over 
collateral responsibilities.
    (c) The SBS appointed pursuant to paragraph (a) of this section, 
shall perform the following duties as appropriate:
    (1) Maintain a program designed to locate capable small business 
sources for current and future acquisitions;
    (2) Coordinate inquiries and requests for advice from small and 
small disadvantaged business concerns on acquisition matters;
    (3) Review all proposed solicitations in excess of the simplified 
acquisition threshold, assure that small business concerns will be 
afforded an equitable opportunity to compete, and, as appropriate, 
initiate recommendations for small business set-asides, or offers of 
requirements to the SBA for the 8(a) program, and complete EPA Form 
1900-37, ``Record of Procurement Request Review,'' as appropriate:
    (4) Take action to assure the availability of adequate 
specifications and drawings, when necessary, to obtain small business 
participation in an acquisition. When small business concerns cannot be 
given an opportunity on a current acquisition, initiate action, in 
writing, with appropriate technical and contracting personnel to ensure 
that necessary specifications and/or drawings for future acquisitions 
are available.
    (5) Review proposed contracts for possible breakout of items or 
services suitable for acquisition from small business and small 
disadvantaged business concerns;
    (6) Advise small businesses with respect to the financial assistance 
available under existing laws and regulations and assist such concerns 
in applying for financial assistance;
    (7) Participate in the evaluation of a prime contractor's small 
business subcontracting programs;
    (8) Assure that adequate records are maintained, and accurate 
reports prepared, concerning small business participation in acquisition 
programs (see 1519.202-5);
    (9) Make available to SBA copies of solicitations when so requested;
    (10) Act as liaison with the appropriate SBA office or 
representative in connection with set-asides, certificates of 
competency, size classification, and any other matter concerning the 
small or small disadvantaged business programs.

[49 FR 8855, Mar. 8, 1984, as amended at 55 FR 24579, June 18, 1990. 
Redesignated and amended at 61 FR 57338, 57339, Nov. 6, 1996]



1519.202-5  Data collection and reporting requirements.

    (a) As required, monthly reports of factual information, covering 
acquisition actions and dollars awarded to small businesses, small 
disadvantaged businesses, women-owned small businesses, the Small 
Business Administration under the authority of section 8(a) of the Small 
Business Act, and information on actions and dollars made under small 
business set-asides shall be submitted by the Procurement and Contracts 
Management Division, to the Director, OSDBU.
    (b) The Financial Management Division will submit to the Director, 
OSDBU, a copy of the Small Purchase Activity Report that shows by each 
EPA purchasing activity the following information (cumulative monthly) 
for small purchases:
    (1) Total actions and dollar value of awards;
    (2) Total actions and dollar value of awards to all businesses;
    (3) Total actions and dollar value of awards to small businesses;
    (4) Total actions and dollar value of construction awards to small 
businesses made by set-aside;
    (5) Total actions and dollar value of small business awards made by 
set-asides, excluding set-asides for construction;
    (6) Total actions and dollar value of awards made to the Small 
Business Administration pursuant to section 8(a) of the Small Business 
Act; and
    (7) Total actions and dollar value of awards made to small 
disadvantaged businesses.
    (c) The reports identified in paragraphs (a) and (b) of this section 
are to be submitted to the Director, OSDBU, no later than the 20th day 
following

[[Page 41]]

the end of the reporting period with the exception of the last report of 
the fiscal year which shall be submitted no later than the 30th day 
following the end of the fiscal year.



Sec. 1519.203  Mentor-protege.

    (a) The Contracting officer shall insert the clause at 1552.219-70, 
Mentor-Protege Program, in all contracts under which the Contractor has 
been approved to participate in the EPA Mentor-Protege Program.
    (b) The Contracting officer shall insert the provision at 1552.219-
71, Procedures for Participation in the EPA Mentor-Protege Program, in 
all solicitations valued at $500,000 or more which will be cost-plus-
award-fee or cost-plus fixed-fee contracts.

[65 FR 58923, Oct. 3, 2000]



Sec. 1519.204  Small disadvantaged business participation.

    (a) The Contracting officer shall insert the provision at 1552.219-
72, Small Disadvantaged Business Participation Program, or a provision 
substantially the same as 1552.219-72, in solicitations for acquisitions 
subject to FAR 19.12 that will evaluate the extent of the participation 
of Small Disadvantaged Business (SDB) concerns in the performance of a 
resulting contract.
    (b) The Contracting officer shall insert the clause at 1552.219-73, 
Small Disadvantaged Business Targets, or one substantially the same as 
1552.219-73, in solicitations and contracts for acquisitions subject to 
FAR 19.12 that evaluate the extent of participation of SDB concerns in 
the performance of the contract and which included solicitation 
provision 1552.219-72.
    (c) The Contracting officer shall insert the evaluation provision at 
1552.219-74, Small Disadvantaged Business Participation Evaluation 
Factor, (and assign a value to it), or one substantially the same as 
1552.219-74, in solicitations for acquisitions subject to FAR 19.12 that 
include the provision at 1552.219-72 and will evaluate the extent of 
participation of SDB concerns in the performance of the contract.

[65 FR 58923, Oct. 3, 2000]



              Subpart 1519.5--Set-Asides for Small Business



1519.501  Review of acquisitions.

    (a) If no Small Business Administration (SBA) representative is 
available, the Small Business Specialist (SBS) shall initiate 
recommendations to the Contracting Officer for small business set-asides 
with respect to individual acquisitions or classes of acquisitions or 
portions thereof.
    (b) When the SBS has recommended that all, or a portion, of an 
individual acquisition or class of acquisitions be set aside for small 
business, the Contracting Officer shall promptly either: (1) Concur in 
the recommendation or (2) disapprove the recommendation, stating in 
writing the reasons for disapproval. If the Contracting Officer 
disapproves the recommendation of the SBS, the SBS may appeal to the 
appropriate appointing authority, whose decision shall be final.

[49 FR 8855, Mar. 8, 1984, as amended at 61 FR 57338, 57339, Nov. 6, 
1996]



1519.503  Class set-aside for construction.

    (a) Each proposed acquisition for construction estimated to cost 
between $10,000 and $1,000,000 shall be set-aside for exclusive small 
business participation. Such set-asides shall be considered to be 
unilateral small business set-asides, and shall be withdrawn in 
accordance with the procedure of FAR 19.506 only if found not to serve 
the best interest of the Government.
    (b) Small business set-aside preferences for construction 
acquisitions in excess of $1,000,000 shall be considered on a case-by-
case basis.

Subpart 1519.6--Certificates of Competency and Determinations of 
Eligibility [Reserved]

[[Page 42]]



      Subpart 1519.7--Subcontracting With Small Business and Small 
                     Disadvantaged Business Concerns



1519.705-2  Determining the need for a subcontract plan.

    One copy of the determination required by FAR 19.705-2(c) shall be 
placed in the contract file and one copy provided the Director, Office 
of Small and Disadvantaged Business Utilization (OSDBU).



1519.705-4  Reviewing the subcontracting plan.

    In determining the acceptability of a proposed subcontracting plan, 
the Contracting Officer shall obtain advice and recommendations from the 
OSDBU, which shall in turn coordinate review by the Small Business 
Administration Procurement Center Representative (if any).



1519.705-70  Synopsis of contracts containing Pub. L. 95-507 subcontracting plans and goals.

    The synopsis of contract award, where applicable, shall include a 
statement identifying the contract as one containing Pub. L. 95-507 
subcontracting plans and goals.

[49 FR 8855, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



PART 1520--LABOR SURPLUS AREA CONCERNS--Table of Contents




    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

Subpart 1520.1--General [Reserved]

Subpart 1520.3--Labor Surplus Area Subcontracting Program [Reserved]



PART 1522--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS--Table of Contents




                  Subpart 1522.1--Basic Labor Policies

Sec.
1522.103 Overtime.

            Subpart 1522.6--Walsh-Healey Public Contracts Act

1522.608 Procedures.

              Subpart 1522.8--Equal Employment Opportunity

1522.803 Responsibilities.
1522.804 Affirmative action programs.
1522.804-2 Construction.

Subpart 1522.10--Service Contract Act of 1965 [Reserved]

Subpart 1522.13--Special Disabled and Vietnam Era Veterans [Reserved]

Subpart 1522.14--Employment of the Handicapped [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8857, June 15, 1984, unless otherwise noted.



                  Subpart 1522.1--Basic Labor Policies



1522.103  Overtime.



            Subpart 1522.6--Walsh-Healey Public Contracts Act



1522.608  Procedures.



              Subpart 1522.8--Equal Employment Opportunity



1522.803  Responsibilities.

    If the applicability of E.O. 11246 and implementing regulations are 
questioned, the Contracting Officer shall route the matter through the 
CCO to the EPA Office of Civil Rights.

[49 FR 8857, June 15, 1984, as amended at 55 FR 24579, June 18, 1990; 59 
FR 18976, Apr. 21, 1994]



1522.804  Affirmative action programs.



1522.804-2  Construction.

    Each contracting office having construction contract responsibility 
shall maintain a list of geographical areas subject to affirmative 
action requirements. The list can be obtained from

[[Page 43]]

the Office of Contract Compliance Programs, U.S. Department of Labor.

[49 FR 8857, Mar. 8, 1984; 49 FR 24734, June 15, 1984]

Subpart 1522.10--Service Contract Act of 1965 [Reserved]

Subpart 1522.13--Special Disabled and Vietnam Era Veterans [Reserved]

Subpart 1522.14--Employment of the Handicapped [Reserved]



PART 1523--ENVIRONMENTAL, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE--Table of Contents




       Subpart 1523.3--Hazardous Material and Material Safety Data

Sec.
1523.303 Contract clause.
1523.303-70 Protection of human subjects.
1523.303-71 Decontamination of Government-furnished property.
1523.303-72 Care of laboratory animals.

          Subpart 1523.70--Energy-Efficient Computer Equipment

1523.7000 Background.
1523.7001 Policy.
1523.7002 Waivers.
1523.7003 Contract clause.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8857, Mar. 8, 1984, unless otherwise noted.



       Subpart 1523.3--Hazardous Material and Material Safety Data



1523.303  Contract clause.



1523.303-70  Protection of human subjects.

    Contracting Officers shall insert the contract clause at 1552.223-70 
when the contract involves human test subjects.



1523.303-71  Decontamination of Government-furnished property.

    Contracting Officers shall insert the contract clause at 1552.245-
70, Decontamination of Government-Furnished Property, when it is 
anticipated that a Contractor will use Government-furnished or 
Contractor-acquired property in the clean-up of hazardous or toxic 
substances in the environment.



Sec. 1523.303-72  Care of laboratory animals.

    Contracting officers shall insert the clause at 1552.223-72, Care of 
Laboratory Animals, in all contracts involving the use of experimental 
animals.

[65 FR 58923, Oct. 3, 2000]



          Subpart 1523.70--Energy-Efficient Computer Equipment

    Source: 61 FR 14506, Apr. 2, 1996, unless otherwise noted.



1523.7000  Background.

    (a) Executive Order 12845 requires the Federal Government to 
purchase only microcomputers, including personal computers, monitors and 
printers, which meet ``EPA Energy Star'' requirements for energy 
efficiency. This equipment is often identified by the Energy 
StarTM logo and is capable of entering and recovering from an 
energy-efficient low power state.
    (b) The EPA Energy Star Computer Program is a voluntary partnership 
effort with the computer industry to promote the introduction of energy-
efficient personal computers, monitors, and printers which can reduce 
air pollution caused by utility power generation, and ease the burden on 
building air conditioning and electrical systems. The Energy Star 
Program is designed to be a self-certifying computer industry program, 
policed informally by the computer industry itself.
    (c) FIRMR Bulletin C-35 (dated 11/19/93) describes procedures that 
will promote the acquisition of energy-efficient microcomputers and 
associated computer equipment.



1523.7001  Policy.

    (a) The ``Energy Star'' Executive Order (E.O. 12845) applies to the 
following equipment:
    (1) Personal Computers (stand-alone).
    (2) Personal Computers (end-user on network).
    (3) Notebook and other portable computers.

[[Page 44]]

    (4) PC printers - laser, inkjet or dot matrix (stand-alone or 
networked).
    (5) High-speed printers used on a PC network (less than 
approximately 20 pages per minute).
    (6) Monitors (CRT or Flat-panel LCD).
    (b) ``Energy Star'' requirements do not apply to the following 
equipment:
    (1) Workstations.
    (2) File servers.
    (3) Mainframe equipment.
    (4) Minicomputers.
    (5) High-speed printers used with mainframe computers (30 or more 
pages per minute).
    (6) Mainframe or ``dumb'' terminals.
    (7) X-terminals.
    (c) All new acquisitions for microcomputers, including personal 
computers, monitors, and printers, shall contain specifications which 
meet EPA Energy Star requirements for energy efficiency unless a waiver 
has been obtained in accordance with internal Agency procedures. The EPA 
Energy Star requirement applies in instances where the Contracting 
Officer authorizes the contractor to acquire property in accordance with 
FAR 45.302-1.
    (d) The Energy Star requirement also applies to all applicable 
equipment ordered from GSA Schedule Contracts, open market buys, and 
Bankcard purchases.



1523.7002  Waivers.

    (a) There are several types of computer equipment which technically 
fall under the current Energy Star Program, but for which EPA 
established blanket waivers because Energy Star compliant versions of 
this equipment were unavailable in the marketplace. Blanket waivers 
apply to the following types of equipment:
    (1) LAN servers, including file servers; application servers; 
communication servers; including bridges and routers;
    (2) UNIX RISC based processors with their high-end monitors;
    (3) Large LAN printers (greater than 19 pages/minute output); and
    (4) Scientific computing equipment which is used for real-time data 
acquisition and which, if subjected to a power down mode, would 
jeopardize the research project.
    (b) It is anticipated that there will be Energy Star models of this 
equipment in the future, but in the near term EPA will not specify 
Energy Star qualifications when purchasing the items listed in this 
section.



1523.7003  Contract clause.

    (a) Rehabilitation Act Notice.
    Contracting officers shall insert the clause at 1552.239-70, 
Rehabilitation Act Notice, or one substantially the same as this clause, 
in all solicitations and contracts where the contractor may be required 
to provide any type of support to EPA in connection with EPA programs 
and activities, including conferences, symposia, workgroups, meetings, 
etc.
    (b) The Contracting Officer shall insert a clause substantially the 
same as 48 CFR 1552.239-103, Acquisition of Energy Star Compliant 
Microcomputers, Including Personal Computers, Monitors, and Printers, in 
all solicitations and contracts for the acquisition of microcomputers, 
including personal computers, monitors and printers. The Contracting 
Officer shall also insert the clause in solicitations and contracts 
where the Contracting Officer authorizes the contractor to acquire 
property in accordance with FAR 45.302-1.

[61 FR 14506, Apr. 2, 1996, as amended at 65 FR 58923, Oct. 3, 2000]



PART 1524--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--Table of Contents




            Subpart 1524.1--Protection of Individual Privacy

Sec.
1524.104 Solicitation provisions.

Subpart 1524.2--Freedom of Information Act [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

[[Page 45]]



            Subpart 1524.1--Protection of Individual Privacy



1524.104  Solicitation provisions.

    The Contracting Officer shall insert the provision at 1552.224-70, 
Social Security Numbers of Consultants and Certain Sole Proprietors and 
Privacy Act Statement, in all solicitations.

[49 FR 8858, Mar. 8, 1984]

Subpart 1524.2--Freedom of Information Act [Reserved]



PART 1525--FOREIGN ACQUISITION--Table of Contents




Subpart 1525.1--Buy American Act--Supplies [Reserved]

[[Page 46]]



             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS



PART 1527--PATENTS, DATA, AND COPYRIGHTS--Table of Contents




              Subpart 1527.4--Rights in Data and Copyrights

Sec.
1527.404 Basic rights in data clause.
1527.409 Solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).



              Subpart 1527.4--Rights in Data and Copyrights



1527.404  Basic rights in data clause.

    The Contracting Officer shall insert in the Limited Rights Notice 
when using Alternate II of FAR 52.227-14 the following purposes for 
disclosure of limited data outside the Government.
    (a) Use (except for manufacture) by support service contractors;
    (b) Evaluation by nongovernment evaluators;
    (c) Use (except for manufacture) by other contractors participating 
in the Government's program of which the specific contract is a part, 
for information and use in connection with the work performed under each 
contract;
    (d) Emergency repairs or overhaul work;
    (e) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government.

[55 FR 48623, Nov. 21, 1990]



1527.409  Solicitation provisions and contract clauses.

    The Contracting Officer shall insert the clause in 1552.227-76 in 
all Superfund solicitations and contracts in excess of the simplified 
acquisition threshold and, as appropriate, in simplified acquisition 
procedures. The clause may be used in other contracts if considered 
necessary by the Contracting Officer.

[59 FR 18620, Apr. 19, 1994, as amended at 61 FR 57339, Nov. 6, 1996]



PART 1528--INSURANCE--Table of Contents




                        Subpart 1528.1--Insurance



1528.101  Insurance liability to third persons.

    Contracting officers shall insert the clause at 1552,228-70, 
Insurance Liability to Third Persons, in cost-reimbursement 
solicitations and contracts, except those for construction and 
architect-engineer services. Note: This clause may be used in contracts 
awarded utilizing architect-engineer services such as requirements for 
Superfund cleanups (e.g., response action contracts). The clause does 
not apply to Superfund indemnification for third party pollution 
liability or coverage for commercial pollution liability insurance as 
prescribed by section 119 of CERCLA as amended by SARA.

[65 FR 58923, Oct. 3, 2000]



PART 1529--TAXES--Table of Contents




                  Subpart 1529.3--State and Local Taxes

1529.303 Application of State and local taxes to Government contractors 
          and subcontractors.

                    Subpart 1529.4--Contract Clauses

1529.401 Domestic contracts.
1529.401-70 Cost-reimbursable type contracts.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 54 FR 49998, Dec. 4, 1989, unless otherwise noted.



                  Subpart 1529.3--State and Local Taxes



1529.303  Application of State and local taxes to Government contractors and subcontractors.

    Contractors are responsible for determining the availability of 
State and local tax exemptions and obtaining such exemptions, if 
available, unless the Contracting Officer determines

[[Page 47]]

under FAR 31.205-41(b)(3) that the administrative burden outweighs the 
corresponding benefit. Contractors are responsible for ensuring that 
subcontractors also seek and obtain such exemptions, if available.



                    Subpart 1529.4--Contract Clauses



1529.401  Domestic contracts.



1529.401-70  Cost-reimbursable type contracts.

    Contracting Officers shall insert the clause at 1552.229-70 in all 
solicitations and contracts when it is anticipated a cost-reimbursable 
type contract shall be used or a contractor or subcontractor shall be 
reimbursed for materials at cost.



PART 1530--COST ACCOUNTING STANDARDS--Table of Contents




Subpart 1530.3--CAS Contract Requirements [Reserved]



PART 1531--CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents




Subpart 1531.1--Applicability [Reserved]



PART 1532--CONTRACT FINANCING--Table of Contents




Sec.
1532.006 Reduction or suspension of contract payments upon finding of 
          fraud.
1532.006-1 General.
1532.006-2 Definitions.
1532.006-3 Responsibilities.

                         Subpart 1532.1--General

1532.102 Description of contract financing methods.
1532.111 Contract clauses.
1532.170 Forms.

           Subpart 1532.2--Commercial Item Purchase Financing

1532.201 Statutory authority.

Subpart 1532.4--Advance Payments [Reserved]

                  Subpart 1532.8--Assignment of Claims

1532.805 Procedure.
1532.805-70 Forms.

                     Subpart 1532.9--Prompt Payment

1532.908 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8858, Mar. 8, 1984, unless otherwise noted.



1532.006  Reduction or suspension of contract payments upon finding of fraud.



1532.006-1  General.

    (a)-(b) [Reserved]
    (c) Agency responsibilities and determinations under FAR 32.006 are, 
consistent with FAR 32.006-1(c), delegated to the Head of the 
Contracting Activity, if that individual is not below Level IV of the 
Executive Schedule. If the Head of the Contracting Activity is below 
Level IV of the Executive Schedule, then Agency responsibilities and 
determinations under FAR 32.006 are delegated to the Assistant 
Administrator for Administration and Resources Management.

[65 FR 37292, June 14, 2000]



1532.006-2  Definitions.

    The Remedy Coordination Official for EPA is the Assistant Inspector 
General for Investigations.

[65 FR 37292, June 14, 2000]



1532.006-3  Responsibilities.

    (a) EPA shall use the procedures in FAR 32.006-4 when determining 
whether to reduce or suspend further payments to a contractor when there 
is a report from the Remedy Coordination Official finding substantial 
evidence that the contractor's request for advance, partial or progress 
payments is based on fraud and recommending that the Agency reduce or 
suspend such payments to the contractor.
    (b) [Reserved]

[65 FR 37292, June 14, 2000]

[[Page 48]]



                         Subpart 1532.1--General



1532.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under EPA contracts or 
subcontracts for construction and alteration or repair of buildings, 
structures, or other real property.

[60 FR 38505, July 27, 1995]



1532.111  Contract clauses.

    The Contracting Officer shall insert the clause at 1552.232-73, 
Payments--Fixed Rate Services Contract, in solicitations and indefinite 
delivery/indefinite quantity contracts when services are being acquired 
on a fixed-rate basis.



1532.170  Forms.

    (a) EPA Form 1900-10 Contractor's Cumulative Claim and 
Reconciliation, at 1553.232-74, shall be used for an accounting of the 
cumulative charges and costs for cost-reimbursement contracts from 
inception of the contract to completion. It shall be submitted by the 
Contractor upon submission of the completion voucher.
    (b) EPA Form 1900-68, Notice of Contract Costs Suspended and/or 
Disallowed, at 1553.232-75, shall be inserted in all cost-reimbursement 
type and fixed-rate type contracts.

[49 FR 8858, Mar. 8, 1984, as amended at 61 FR 29317, June 10, 1996]



           Subpart 1532.2--Commercial Item Purchase Financing



1532.201  Statutory authority.

    Authority for making the determination under FAR 32.201 is delegated 
to a level above the Contracting Officer.

[61 FR 57339, Nov. 6, 1996]

Subpart 1532.4--Advance Payments [Reserved]



                  Subpart 1532.8--Assignment of Claims



1532.805  Procedure.



1532.805-70  Forms.

    (a) EPA Form 1900-3, Assignee's Release, at 1553.232-70 is required 
to be submitted by the assignee for cost-reimbursement contracts prior 
to final payment under the contract.
    (b) EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates, 
Credits, and Other Amounts, at 1553.232-71 must accompany the assignee's 
release prior to final payment under cost-reimbursement contracts.
    (c) EPA Form 1900-5, Contractor's Assignment of Refunds, Rebates and 
Credits, at 1553.232-72 must be prepared by the Contractor prior to 
final payment under cost-reimbursement contracts and must accompany the 
Contractor's Release.
    (d) EPA Form 1900-6, Contractor's Release, at 1553.232-73 must be 
submitted by the Contractor prior to final payment under cost-
reimbursement contracts.



                     Subpart 1532.9--Prompt Payment



1532.908  Contract clauses.

    The Contracting Officer shall insert a clause substantially the same 
as that at 1552.232-70 in all solicitations and contracts for cost 
reimbursable acquisitions. If a fixed-rate type contract is 
contemplated, the Contracting Officer shall use the clause with its 
Alternate I.

[61 FR 29317, June 10, 1996]



PART 1533--PROTESTS, DISPUTES AND APPEALS--Table of Contents




                        Subpart 1533.1--Protests

Sec.
1533.103 Protests to the Agency.

                  Subpart 1533.2--Disputes and Appeals

1533.203 Applicability.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 50 FR 14359, Apr. 11, 1985, unless otherwise noted.

[[Page 49]]



                        Subpart 1533.1--Protests



1533.103  Protests to the Agency.

    Protests to the Agency are processed pursuant to the requirements of 
FAR 33.103. Contracting Officers must include in every solicitation the 
provision at 1552.233-70, Notice of Filing Requirements for Agency 
Protests.

[64 FR 17110, Apr. 8, 1999]



                  Subpart 1533.2--Disputes and Appeals



1533.203  Applicability.

    Pursuant to an interagency agreement between the EPA and the 
Department of the Interior Board of Contract Appeals (IBCA), the IBCA 
will hear appeals from final decisions of EPA Contracting Officers 
issued pursuant to the Contract Disputes Act. The rules and regulations 
of the IBCA appear in 43 CFR part 4.

[[Page 50]]



             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING



PART 1535--RESEARCH AND DEVELOPMENT CONTRACTING--Table of Contents




Sec.
1535.007 Solicitations.
1535.007-70 Contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).



1535.007  Solicitations.

    (a) Contracting officers shall insert 48 CFR 1552.235-73, Access to 
Federal Insecticide, Fungicide, and Rodenticide Act Confidential 
Business Information, in all solicitations when the contracting officer 
has determined that EPA may furnish the contractor with confidential 
business information which EPA had obtained from third parties under the 
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et 
seq.).
    (b) Contracting officers shall insert 48 CFR 1552.235-75, Access to 
Toxic Substances Control Act Confidential Business Information, in all 
solicitations when the contracting officer has determined that EPA may 
furnish the contractor with confidential business information which EPA 
had obtained from third parties under the Toxic Substances Control Act 
(15 U.S.C. 2601 et seq.).

[62 FR 38477, July 18, 1997]



1535.007-70  Contract clauses.

    The following clauses are prescribed for research and development 
(R&D) contracts. They may also be used in other than R&D contracts when 
applicable (see 1537.110).
    (a) The Contracting Officer shall insert the contract clause at 
1552.235-70, Screening Business Information for Claims of 
Confidentiality, in contracts when the Contracting Officer has 
determined that during performance of this contract, the Contractor may 
be required to collect information to perform the work required under 
this contract. Some of the information may consist of trade secrets or 
commercial or financial information that would be considered as 
proprietary or confidential by the business that has the right to the 
information.
    (b) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-71, Treatment of Confidential Business Information, in 
solicitations and contracts when the Contracting Officer has determined 
that in the performance of the contract, EPA may furnish confidential 
business information to the contractor obtained from third parties under 
the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water Act (42 
U.S.C. 300f et seq.), the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 301 et seq.), the Resource Conservation and Recovery Act (42 
U.S.C. 301 et seq.), the Federal Insecticide, Fungicide and Rodenticide 
Act (7 U.S.C. 136 et seq.), the Comprehensive Environmental Response, 
Compensation, and Liability Act (42 U.S.C. 9601 et seq.), and the 
provision at 48 CFR 1552.235-70, Release of Contractor Confidential 
Business Information. EPA regulations on confidentiality of business 
information in 40 CFR part 2, subpart B require that the contractor 
agree to the clause entitled ``Treatment of Confidential Business 
Information'' before any confidential business information may be 
furnished to the contractor.
    (c) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-76, Treatment of Confidential Business Information (TSCA), in 
solicitations and contracts when the Contracting Officer has determined 
that in the performance of the contract, EPA may furnish the contractor 
with confidential business information obtained from third parties under 
the Toxic Substances Control Act (15 U.S.C. 2601 et seq.). EPA 
regulations on confidentiality of business information in 40 CFR part 2, 
subpart B require that the contractor agree to the clause entitled 
``Treatment of Confidential Business Information'' before any 
confidential business information may be furnished to the contractor.
    (d) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-77, Data Security for Federal Insecticide,

[[Page 51]]

Fungicide, and Rodenticide Act, Confidential Business Information, when 
the contract involves access to confidential business information 
related to the Federal Insecticide, Fungicide, and Rodenticide Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-71) and the Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (e) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-78, Data Security for Toxic Substances Control Act Confidential 
Business Information, when the contract involves access to confidential 
business information related to the Toxic Substances Control Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-76) and Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (f) Contracting Officers shall insert the clause 48 CFR 1552.235-79, 
Release of Contractor Confidential Business Information, in all 
solicitations and contracts in order to authorize the Agency to release 
confidential business information under certain circumstances.
    (g) Contracting officers shall insert the clause at 1552.235-80, 
Access to Confidential Business Information (CBI), in all types of 
contracts when it is possible that it will be necessary for the 
contractor to have access to CBI during the performance of tasks 
required under the contract.

[49 FR 8862, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 61 
FR 14265, Apr. 1, 1996; 61 FR 57339, Nov. 6, 1996; 65 FR 58923, Oct. 3, 
2000]



PART 1536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--Table of Contents




     Subpart 1536.2--Special Aspects of Contracting for Construction

Sec.
1536.201 Evaluation of contracting performance.
1536.209 Construction contracts with architect-engineer firms.

                    Subpart 1536.5--Contract Clauses

1536.521 Specifications and drawings for construction.

               Subpart 1536.6--Architect-Engineer Services

1536.602 Selection of firms for architect-engineer contracts.
1536.602-2 Establishment of evaluation boards.

    Authority: 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8863, Mar. 8, 1984, unless otherwise noted.



     Subpart 1536.2--Special Aspects of Contracting for Construction



1536.201  Evaluation of contracting performance.

    (a) The Contracting Officer will obtain input from the Project 
Officer on the contractor's performance. The Contracting Officer will 
prepare the contractor performance report as prescribed in FAR 36.201 
within two weeks after final acceptance of the work or contract 
termination.
    (b) Prior to submitting any report or unsatisfactory performance to 
the reviewing official, the Contracting Officer will advise the 
contractor of any proposed unsatisfactory rating (see FAR 36.201(a)(3)).
    (c) The official at one level above the Contracting Officer will 
review each performance report.
    (d) The Contracting Officer will forward the original of the 
performance report to the Quality Assurance Branch, Office of 
Acquisition Management. The Quality Assurance Section will file the form 
in the contractor performance evaluation files which it maintains.
    (e) The Quality Assurance Branch will review the report when it is 
received and compare it with recent evaluations of that contractor. If 
the Quality Assurance Section discerns a pattern of unsatisfactory 
performance, it will notify the Contracting Officer for possible action, 
which may include referral of the matter to the Compliance Staff or to 
the Inspector General for investigation.
    (f) Information from the performance report shall not be released 
outside of the Agency, except to other Government agencies at their 
written request, and on condition that the information

[[Page 52]]

will not be made available outside the Government. Requests from non-
Government sources for information from performance reports shall be 
processed in accordance with EPA's Freedom of Information Act procedures 
at 40 CFR part 2.

[49 FR 8863, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994]



1536.209  Construction contracts with architect-engineer firms.

    (a) The provisions of FAR 36.209 do not apply to subcontractors 
performing treatability studies.
    (b) The provisions of FAR 36.209 also do not apply to subcontractors 
whose input during the design phase does not substantially affect the 
course of the design work.
    (c) Approval under FAR 36.209 is not required for subcontractors 
under paragraph (a) or (b) of this section. Approval for all other 
subcontractors and prime contractors may be granted by the CCO. In 
reviewing requests for approval, the RAD shall consider factors such as 
the availability of other firms to perform the necessary construction or 
Superfund remedial action work, the estimated cost to the Government, 
and the policy of the Agency to promote the use of innovative 
technology.

[55 FR 49283, Nov. 27, 1990, as amended at 59 FR 18977, Apr. 21, 1994]



                    Subpart 1536.5--Contract Clauses



1536.521  Specifications and drawings for construction.

    The Contracting Officer shall insert the clause at 1552.236-70, 
Samples and Certificates, in soliciations and contracts when a fixed 
price construction contract is expected to exceed the small purchase 
limitation. The clause may be inserted in solicitations and contracts 
when the contract is expected to be within the small purchase 
limitation.



               Subpart 1536.6--Architect-Engineer Services



1536.602  Selection of firms for architect-engineer contracts.



1536.602-2  Establishment of evaluation boards.

    (a) The Environmental Protection Agency Architect-Engineer 
Evaluation Board is established as a central permanent Board located at 
Headquarters EPA under authority delegated to the Director, Office of 
Acquisition Management. The Board shall perform all architect-engineer 
evaluations on an agency-wide basis. The Agency 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 Architect-Engineer Evaluation 
Board:
    (1) Member and Chairperson. Chief, Engineering, Planning, and 
Architecture Branch, Facilities Management and Services Division or his/
her designee;
    (2) Member. A professional engineer or architect from EPA to be 
designated by the Chairperson;
    (3) Member. A program official initiating the requirement or a 
designated representative; and
    (4) Advisory Member. A Contracting Officer or his/her 
representative.
    (b) The Service Center Manager (SCM) is delegated the authority to 
appoint either one or two 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 Chairperson, an 
alternate experienced in architecture, engineering, or construction to 
serve in his/her absence.
    (d) The duties of the advisory member shall include, but not be 
limited to, the following:
    (1) Assuring that the criteria set forth in the public notice are 
applied in the evaluation process; and

[[Page 53]]

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

[59 FR 18977, Apr. 21, 1994, as amended at 67 FR 5052, Feb. 4, 2002]



PART 1537--SERVICE CONTRACTING--Table of Contents




               Subpart 1537.1--Service Contracts--General

Sec.
1537.110 Solicitation provisions and contract clauses.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8864, Mar. 8, 1984, unless otherwise noted.



               Subpart 1537.1--Service Contracts--General



1537.110  Solicitation provisions and contract clauses.

    The following clauses are prescribed for service contracts. They may 
also be used in research and development contracts when applicable (see 
1535.007-70).
    (a) The Contracting Officer shall insert the clause at 1552.237-70, 
Contract Publication Review Procedures, in solicitations and contracts 
when the products of the contract are subject to contract publication 
review.
    (b) The Contracting Officer shall insert the clause at 1552.237-71, 
Technical Direction, in cost-reimbursement type solicitations and 
contracts.
    (c) The Contracting Officer shall insert the clause at 1552.237-72, 
Key Personnel, in solicitations and contracts when it is necessary for 
contract performance to identify Contractor key personnel.
    (d) The Contracting Officer shall insert the clause at 1552.237-73, 
Consultant Services and Consent, in solicitations and contracts where 
the services of consultants are required.
    (e) The Contracting Officer shall insert the clause at 1552.237-74, 
Publicity, in solicitations and contracts pertaining to the removal or 
remedial activities under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA).
    (f) The Contracting Officer shall insert the clause at 1552.237-75, 
Paperwork Reduction Act, in solicitations and contracts requiring the 
collection of identical information from (10) or more public 
respondents.
    (g) To ensure that Agency contracts are administered so as to avoid 
creating an improper employer-employee relationship, contracting 
officers shall insert the contract clause at 48 CFR 1552.237-76, 
``Government-Contractor Relations'', in all solicitations and contracts 
for non-personal services that exceed the simplified acquisition 
threshold.

[49 FR 8864, Mar. 8, 1984, as amended at 64 FR 30444, June 8, 1999]

[[Page 54]]



                    SUBCHAPTER G--CONTRACT MANAGEMENT



PART 1542--CONTRACT ADMINISTRATION--Table of Contents




                   Subpart 1542.7--Indirect Cost Rates

Sec.
1542.703-2 Certificate of indirect costs.
1542.705 Final indirect cost rates.
1542.705-70 Solicitation and contract clause.

         Subpart 1542.12--Novation and Change of Name Agreements

1542.1200 Scope of subpart.
1542.1202 Responsibility for executing agreements.
1542.1203 Processing agreements.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8865, Mar. 8, 1984, unless otherwise noted.



                   Subpart 1542.7--Indirect Cost Rates



1542.703-2  Certificate of indirect costs.

    The Head of the Contracting Activity may waive the certification 
requirement set forth in FAR 42.703-2.

[61 FR 57339, Nov. 6, 1996]



1542.705  Final indirect cost rates.

    (a) The EPA shall use the Contracting Officer determination 
procedure for all business units for which it shall be required to 
negotiate final indirect cost rates.
    (b) Contracting officers shall insert the clause at 1552.242-72, 
Financial Administrative Contracting officers (FACO), in cost-
reimbursement contracts when the Environmental Protection Agency (EPA) 
is the cognizant federal agency and a FACO will be assigned.

[49 FR 8865, Mar. 8, 1984, as amended at 65 FR 58924, Oct. 3, 2000]



1542.705-70  Solicitation and contract clause.

    The Contracting Officer shall insert the clause in 1552.242-70, 
Indirect Costs, in solicitations and contracts where indirect costs 
apply, unless contracting with an educational institution where there 
are approved predetermined final indirect cost rates.

[62 FR 33573, June 20, 1997]



         Subpart 1542.12--Novation and Change of Name Agreements



1542.1200  Scope of subpart.

    This subpart implements FAR subpart 42.12 and provides policies and 
procedures for executing and processing novation and change-of-name 
agreements.



1542.1202  Responsibility for executing agreements.

    (a) Any EPA contracting office upon being notified of a successor in 
interest to, or change of name of, one of its Contractors shall promptly 
report such information by memorandum to the Director, Policy, Training 
and Oversight Division (POTD).
    (b) To avoid duplication of effort on the part of EPA contracting 
offices in preparing and executing agreements to recognize a change of 
name or successor in interest, only one supplemental agreement will be 
prepared to effect necessary changes for all contracts between EPA and 
the Contractor involved. The Chief of the Procurement Policy Branch, 
Policy, Training and Oversight Division (PTOD), will, in each case, 
designate the Contracting Office responsible for taking all necessary 
and appropriate action with respect to either recognizing or not 
recognizing a successor in interest, or recognizing a change of name 
agreement.

[49 FR 8865, Mar. 8, 1984, as amended at 55 FR 24580, June 18, 1990; 59 
FR 18977, Apr. 21, 1994]



1542.1203  Processing agreements.

    (a) The responsible contracting office shall:
    (1) Obtain from the Contractor a list of all affected contracts, the 
names and addresses of the contracting offices responsible for these 
contracts, and the required documentary evidence.
    (2) Verify the accuracy of the list of contracts through the 
Contract Information System.

[[Page 55]]

    (3) Draft and execute a supplemental agreement to one of the 
contracts affected but covering all applicable outstanding and 
incomplete contracts affected by the transfer of assets or change of 
name. A supplemental agreement number need not be obtained for contracts 
other than for the one under which the supplemental agreement is 
written. The supplemental agreement will contain a list of the contracts 
affected and, for distribution purposes, the names and addresses of the 
contracting offices having contracts subject to the supplemental 
agreement.
    (b) Agreements and supporting documents covering successors in 
interest shall be reviewed for legal sufficiency by legal counsel.
    (c) After execution of the supplemental agreement, the designated 
office shall forward an authenticated copy of the supplemental agreement 
to the Director, Policy, Training and Oversight Division, and to each 
affected contract office.

[49 FR 8865, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994]



PART 1545--GOVERNMENT PROPERTY--Table of Contents




                         Subpart 1545.1--General

Sec.
1545.106 Government property clauses.

      Subpart 1545.3--Providing Government Property to Contractors

1545.309 Providing Government production and research property under 
          special restrictions.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8866, Mar. 8, 1984, unless otherwise noted.



                         Subpart 1545.1--General



1545.106  Government property clauses.

    (a) In accordance with 1523.303-71, the Contracting Officer shall 
insert the contract clause at 1552.245-70 when it is anticipated that a 
Contractor will use Government-furnished or Contractor-acquired property 
in the cleanup of hazardous or toxic substances in the environment.
    (b) The Contracting Officer shall insert the contract clause at 
1552.245-71, Government-Furnished Data, in any contract in which the 
Government is to furnish data to the Contractor. The data to be provided 
shall be identified in the clause.
    (c) The Contracting Officer shall insert the contract clause at 
1552.245-72, Fabrication or Acquisition of Nonexpendable Property, in 
all cost-reimbursement type contracts or contracts with cost-
reimbursement portions.
    (d) Contracting officers shall insert the clause at 1552.245-73, 
Government Property, in all cost-type solicitations and contracts 
regardless of whether Government Property is initially provided, and in 
all fixed-price solicitations and contracts whenever Government 
furnished property is provided.

[49 FR 8866, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 65 
FR 58924, Oct. 3, 2000]



      Subpart 1545.3--Providing Government Property to Contractors



1545.309  Providing Government production and research property under special restrictions.

    Government production and research property, other than foundations 
and similar improvements necessary for installing special tooling, 
special test equipment, or plant equipment, shall not be installed or 
constructed on land not owned by the Government in such fashion as to be 
nonseverable unless the contract under which the property is provided 
contains--
    (a) One of the provisions in FAR 45.309(a);
    (b) A requirement that the Government will have the right to abandon 
in place all nonseverable Government property provided; and
    (c) A requirement that the Government will not have any obligation 
to disassemble or remove the property or to restore or to rehabilitate 
the premises on which the property is located.

[[Page 56]]



PART 1546--QUALITY ASSURANCE--Table of Contents




                       Subpart 1546.7--Warranties

1546.704 Authority for use of warranties.

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); 
and 41 U.S.C. 418b.



                       Subpart 1546.7--Warranties



1546.704  Authority for use of warranties.

    The Contracting Officer shall ensure that the use of a warranty 
clause in a contract has the concurrence of the Project Officer.

[49 FR 8867, Mar. 8, 1984]



PART 1548--VALUE ENGINEERING [RESERVED]--Table of Contents


[[Page 57]]



                     SUBCHAPTER H--CLAUSES AND FORMS



PART 1552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents




             Subpart 1552.2--Texts of Provisions and Clauses

Sec.
1552.203-70 Current/former agency employee involvement certification.
1552.203-71 Display of EPA Office of Inspector General Hotline Poster.
1552.204-70 Business ownership representation.
1552.208-70 Printing.
1552.209-70 Organizational conflict of interest notification.
1552.209-71 Organizational conflicts of interest.
1552.209-72 Organizational conflict of interest certification.
1552.209-73 Notification of conflicts of interest regarding personnel.
1552.209-74 Limitation of future contracting.
1552.209-75 Annual certification.
1552.209-76 Contractor performance evaluations.
1552.210-71 [Reserved]
1552.210-73--1552.210-74 [Reserved]
1552.211-70 Reports of work.
1552.211-72 Monthly progress report.
1552.211-73 Level of effort--cost-reimbursement term contract.
1552.211-74 Work assignments.
1552.211-75 Working files.
1552.211-76 Legal analysis.
1552.211-77 Final reports.
1552.211-78 Management consulting services.
1552.211-79 Compliance with EPA Policies for Information Resources 
          Management.
1552.211-80 Data standards for the transmission of laboratory 
          measurement results.
1552.213-70 Notice to suppliers of equipment.
1552.214-71 Contract award--other factors--formal advertising.
1552.215-70 EPA source evaluation and selection procedures--negotiated 
          procurements.
1552.215-71 Evaluation factors for award.
1552.215-72 Instructions for the preparation of proposals.
1552.215-73 General financial and organizational information.
1552.215-74 Advanced understanding--uncompensated time.
1552.215-75 Past performance information.
1552.215-76 General financial and organizational information.
1552.216-70 Award fee.
1552.216-71 Date of incurrence of cost.
1552.216-72 Ordering--by designated ordering officers.
1552.216-73 Fixed rates for services--indefinite delivery/indefinite 
          quantity contract.
1552.216-74 Payment of fee.
1552.216-75 Base fee and award fee proposal.
1552.216-76 Estimated cost and cost-sharing.
1552.217-70 Evaluation of contract options.
1552.217-71 Option to extend the term of the contract--cost-type 
          contract.
1552.217-72 Option to extend the term of the contract--cost-plus-award-
          fee contract.
1552.217-73 Option for increased quantity--cost-type contract.
1552.217-74 Option for increased quantity--cost-plus-award-fee contract.
1552.217-75 Option to extend the effective period of the contract--time 
          and materials or labor hour contract.
1552.217-76 Option to extend the effective period of the contract--
          indefinite delivery/indefinite quantity contract.
1552.217-77 Option to extend the term of the contract fixed price.
1552.219-70 Mentor-Protege Program.
1552.219-71 Procedures for participation in the EPA Mentor-Protege 
          Program.
1552.219-72 Small disadvantaged business participation program.
1552.219-73 Small disadvantaged business targets.
1552.219-74 Small disadvantaged business participation evaluation 
          factor.
1552.223-70 Protection of human subjects.
1552.223-72 Care of laboratory animals.
1552.224-70 Social security numbers of consultants and certain sole 
          proprietors and Privacy Act statement.
1552.227-76 Project employee confidentiality agreement.
1552.228-70 Insurance liability to third persons.
1552.229-70 State and local taxes.
1552.232-70 Submission of invoices.
1552.232-71--1552.232-72 [Reserved]
1552.232-73 Payments--fixed rate services contract.
1552.233-70 Notice of filing requirements for agency protests.
1552.235-70 Screening business information for claims of 
          confidentiality.
1552.235-71 Treatment of confidential business information.
1552.235-72 [Reserved]
1552.235-73 Access to Federal Insecticide, Fungicide, and Rodenticide 
          Act Confidential business information (Apr 1996).
1552.235-74 [Reserved]
1552.235-75 Access to Toxic Substances Control Act confidential business 
          information (Apr 1996).
1552.235-76 Treatment of confidential business information (Apr 1996).

[[Page 58]]

1552.235-77 Data Security for Federal Insecticide, Fungicide and 
          Rodenticide Act Confidential Business Information (December 
          1997).
1552.235-78 Data Security for Toxic Substances Control Act Confidential 
          Business Information (December 1997).
1552.235-79 Release of contractor confidential business information (Apr 
          1996).
1552.235-80 Access to confidential business information.
1552.236-70 Samples and certificates.
1552.237-70 Contract publication review procedure.
1552.237-71 Technical direction.
1552.237-72 Key personnel.
1552.237-73 Consultant services and consent.
1552.237-74 Publicity.
1552.237-75 Paperwork Reduction Act.
1552.237-76 Government-Contractor Relations.
1552.239-70 Rehabilitation Act notice.
1552.239-103 Acquisition of Energy Star compliant microcomputers, 
          including personal computers, monitors and printers.
1552.242-70 Indirect costs.
1552.242-72 Financial administrative contracting officer.
1552.245-70 Decontamination of government property.
1552.245-71 Government-furnished data.
1552.245-72 Fabrication or acquisition of nonexpendable property.
1552.245-73 Government property.

    Authority :5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 
U.S.C. 486(c); and 41 U.S.C. 418b.

    Source: 49 FR 8867, Mar. 8, 1984, unless otherwise noted.



             Subpart 1552.2--Texts of Provisions and Clauses



1552.203-70  Current/former agency employee involvement certification.

    As prescribed in 1503.670, insert the following solicitation 
provision in all EPA solicitation documents for sole source 
acquisitions.

   Current/Former Agency Employee Involvement Certification (APR 1984)

    The offeror (quoter) hereby certifies that:
    (a) He is [ ] is not [ ] a former regular or special EPA employee 
whose EPA employment terminated within one year prior to submission of 
this offer (quote).
    (b) He does [ ] does not [ ] employ or propose to employ a current/
former regular or special EPA employee whose EPA employment terminated 
within one year prior to submission of this offer (quote) and who has 
been or will be involved, directly or indirectly, in developing or 
negotiating this offer (quote) for the offeror (quoter), or in the 
management, administration or performance of any contract resulting from 
this offer (quote).
    (c) He does [ ] does not [ ] employ or propose to employ as a 
consultant or subcontractor under any contract resulting from this offer 
(quote) a current/former regular or special EPA employee whose EPA 
employment terminated within one year prior to submission of this offer 
(quote).
    (d) A former regular or special EPA employee whose EPA employment 
terminated within one year prior to submission of this offer (quote) or 
such former employee's spouse or minor child does [ ] does not [ ] own 
or substantially own or control the offeror's (quoter's) firm.
    (e) See EPAAR part 1503 for definitions of the terms ``regular'' and 
``special employee.''

                           (End of provision)

[49 FR 8867, Mar. 8, 1984, as amended at 50 FR 14360, Apr. 11, 1985; 65 
FR 79784, Dec. 20, 2001]



1552.203-71  Display of EPA Office of Inspector General Hotline poster.

    As prescribed in 1503.500-72, insert the following clause in all 
contracts valued at $1,000,000 or more including all contract options.

  Display of EPA Office of Inspector General Hotline Poster (AUG 2000)

    (a) For EPA contracts valued at $1,000,000 or more including all 
contract options, the contractor shall prominently display EPA Office of 
Inspector General Hotline posters in contractor facilities where the 
work is performed under the contract.
    (b) Office of Inspector General hotline posters may be obtained from 
the EPA Office of Inspector General, ATTN: OIG Hotline (2443), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, or by calling (202) 260-
5113.
    (c) The Contractor need not comply with paragraph (a) of this clause 
if it has established a mechanism, such as a hotline, by which employees 
may report suspected instances of improper conduct, and provided 
instructions that encourage employees to make such reports.

[65 FR 57103, Sept. 21, 2000]



1552.204-70  Business Ownership Representation.

    As prescribed in 1504.670, insert the following clause in 
solicitations and contracts:

[[Page 59]]

              Business Ownership Representation (JAN 2001)

    The successful awardee should check one or more of the categories 
below that represents its business ownership and return this information 
to the contracting officer within ten (10) calendar days after award. 
Completion of this clause by the successful awardee is voluntary.
    ``Ownership,'' as used in this clause, means: (a) At least 51 
percent of the concern is owned by one or more individuals from a 
category listed below; or, in the case of any publicly owned business, 
at least 51 percent of the stock of the concern is owned by one or more 
such individuals; and (b) The management and daily business operations 
of the concern are controlled by one or more such individuals.

                                Ethnicity

    [ ] Hispanic or Latino.
    [ ] Not Hispanic or Latino.

                                  Race

    [ ] American Indian, Eskimo, or Aleut.
    [ ] Asian or Pacific Islander.
    [ ] Black or African American.
    [ ] White.

                             (End of clause)

[65 FR 75866, Dec. 5, 2000]



1552.208-70  Printing.

    As prescribed in 1508.870, insert the following clause:

                           Printing (OCT 2000)

    (a) Definitions.
    ``Printing'' is the process of composition, plate making, presswork, 
binding and microform; or the end items produced by such processes and 
equipment. Printing services include newsletter production and 
periodicals which are prohibited under EPA contracts.
    ``Composition'' applies to the setting of type by hot-metal casting, 
photo typesetting, or electronic character generating devices for the 
purpose of producing camera copy, negatives, a plate or image to be used 
in the production of printing or microform.
    ``Camera copy'' (or ``camera-ready copy'') is a final document 
suitable for printing/duplication.
    ``Desktop Publishing'' is a method of composition using computers 
with the final output or generation of camera copy done by a color 
inkjet or color laser printer. This is not considered ``printing.'' 
However, if the output from desktop publishing is being sent to a 
typesetting device (i.e., Linotronic) with camera copy being produced in 
either paper or negative format, these services are considered 
``printing''.
    ``Microform'' is any product produced in a miniaturized image 
format, for mass or general distribution and as a substitute for 
conventionally printed material. Microform services are classified as 
printing services and includes microfiche and microfilm. The contractor 
may make up to two sets of microform files for archival purposes at the 
end of the contract period of performance.
    ``Duplication'' means the making of copies on photocopy machines 
employing electrostatic, thermal, or other processes without using an 
intermediary such as a negative or plate.
    ``Requirement'' means an individual photocopying task. (There may be 
multiple requirements under a Work Assignment or Delivery Order. Each 
requirement would be subject to the photocopying limitation of 5,000 
copies of one page or 25,000 copies of multiple pages in the aggregate 
per requirement).
    (b) Prohibition.
    The contractor shall not engage in, nor subcontract for, any 
printing in connection with the performance of work under this contract. 
Duplication of more than 5,000 copies of one page or more than 25,000 
copies of multiple pages in the aggregate per requirement constitutes 
printing. The intent of the limitation is not to allow the duplication 
of final documents for use by the Agency. In compliance with EPA Order 
2200.4a, EPA Publication Review Procedure, the Office of Communications, 
Education, and Media Relations is responsible for the review of 
materials generated under a contract published or issued by the Agency 
under a contract intended for release to the public.
    (c) Affirmative Requirements.
    (1) Unless otherwise directed by the contracting officer, the 
contractor shall use double-sided copying to produce any progress 
report, draft report or final report.
    (2) Unless otherwise directed by the contracting officer, the 
contractor shall use recycled paper for reports delivered to the Agency 
which meet the minimum content standards for paper and paper products as 
set forth in EPA's Web site for the Comprehensive Procurement Guidelines 
at: http://www.epa.gov/cpg/.
    (d) Permitted Contractor Activities.
    (1) The prohibitions contained in paragraph (b) do not preclude 
writing, editing, or preparing manuscript copy, or preparing related 
illustrative material to a final document (camera-ready copy) using 
desktop publishing.
    (2) The contractor may perform a requirement involving the 
duplication of less than 5,000 copies of only one page, or less than 
25,000 copies of multiple pages in the aggregate, using one color 
(black), so long as such pages do not exceed the maximum image size

[[Page 60]]

of 10\3/4\ by 14\1/4\ inches, or 11 by 17 paper stock. Duplication 
services below these thresholds are not considered printing. If 
performance of the contract will require duplication in excess of these 
limits, contractors must immediately notify the contracting officer in 
writing. EPA may then seek a waiver from the Joint Committee on 
Printing, U. S. Congress. The intent of the limitation is to allow 
``incidental'' duplication (drafts, proofs) under a contract. The intent 
of the limitation is not to allow the duplication of copies of final 
documents for use by the Agency or as distributed as instructed by the 
Agency.
    (3) The contractor may perform a requirement involving the multi-
color duplication of no more than 100 pages in the aggregate using color 
copier technology, so long as such pages do not exceed the maximum image 
size of 10\3/4\ by 14\1/4\ inches, or 11 by 17 paper stock. Duplication 
services below these thresholds are not considered printing. If 
performance of the contract will require duplication in excess of these 
limits, contractors must immediately notify the contracting officer in 
writing. EPA may then seek a waiver from the Joint Committee on 
Printing, U. S. Congress.
    (4) The contractor may perform the duplication of no more than a 
total of 100 diskettes or CD-ROM's. Duplication services below these 
thresholds are not considered printing. If performance of the contract 
will require duplication in excess of these limits, contractors must 
immediately notify the contracting officer in writing. EPA may then seek 
a waiver from the Joint Committee on Printing, U. S. Congress.
    (e) Violations.
    The contractor may not engage in, nor subcontract for, any printing 
in connection with the performance of work under the contract. The cost 
of any printing services in violation of this clause will be disallowed, 
or not accepted by the Government.
    (f) Flowdown Provision.
    The contractor shall include in each subcontract which may involve a 
requirement for any printing/duplicating/copying a provision 
substantially the same as this clause.

                            (End of clause )

[65 FR 58924, Oct. 3, 2000]



1552.209-70  Organizational conflict of interest notification.

    As prescribed in 1509.507-1(b) insert the following solicitation 
provision in all solicitations.

       Organizational Conflict of Interest Notification (APR 1984)

    (a) The prospective Contractor certifies, to the best of its 
knowledge and belief, that it is not aware of any information bearing on 
the existence of any potential organizational conflict of interest. If 
the prospective Contractor cannot so certify, it shall provide a 
disclosure statement in its proposal which describes all relevant 
information concerning any past, present, or planned interests bearing 
on whether it (including its chief executives and directors, or any 
proposed consultant or subcontractor) may have a potential 
organizational conflict of interest.
    (b) Prospective Contractors should refer to FAR subpart 9.5 and 
EPAAR part 1509 for policies and procedures for avoiding, neutralizing, 
or mitigating organizational conflicts of interest.
    (c) If the Contracting Officer determines that a potential conflict 
exists, the prospective Contractor shall not receive an award unless the 
conflict can be avoided or otherwise resolved through the inclusion of a 
special contract clause or other appropriate means. The terms of any 
special clause are subject to negotiation.

                           (End of provision)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 62 
FR 33573, June 20, 1997]



1552.209-71  Organizational conflicts of interest.

    As prescribed in 1509.507-2, insert the following contract clause in 
all contracts except:
    (a) When specific clauses are required per EPAAR part 1509;
    (b) When the procurement is with another Federal agency (however, 
the provision is included in contracts with SBA and its subcontractor 
under the 8(a) program); and
    (c) When the procurement is accomplished through simplified 
acquisition procedures, use of the clause is optional.

             Organizational Conflicts of Interest (MAY 1994)

    (a) The Contractor warrants that, to the best of the Contractor's 
knowledge and belief, there are no relevant facts or circumstances which 
could give rise to an organizational conflict of interest, as defined in 
FAR subpart 9.5, or that the Contractor has disclosed all such relevant 
information.
    (b) Prior to commencement of any work, the Contractor agrees to 
notify the Contracting Officer immediately that, to the best of its 
knowledge and belief, no actual or potential conflict of interest exists 
or to identify to the Contracting Officer any actual or potential 
conflict of interest the firm

[[Page 61]]

may have. In emergency situations, however, work may begin but 
notification shall be made within five (5) working days.
    (c) The Contractor agrees that if an actual or potential 
organizational conflict of interest is identified during performance, 
the Contractor will immediately make a full disclosure in writing to the 
Contracting Officer. This disclosure shall include a description of 
actions which the Contractor has taken or proposes to take, after 
consultation with the Contracting Officer, to avoid, mitigate, or 
neutralize the actual or potential conflict of interest. The Contractor 
shall continue performance until notified by the Contracting Officer of 
any contrary action to be taken.
    (d) Remedies--The EPA may terminate this contract for convenience, 
in whole or in part, if it deems such termination necessary to avoid an 
organizational conflict of interest. If the Contractor was aware of a 
potential organizational conflict of interest prior to award or 
discovered an actual or potential conflict after award and did not 
disclose it or misprepresented relevant information to the Contracting 
officer, the Government may terminate the contract for default, debar 
the Contractor from Government contracting, or pursue such other 
remedies as may be permitted by law or this contract.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph (e), unless otherwise authorized by the 
Contracting Officer.

                             (End of clause)

    Alternate I. Contracts for other than Superfund work shall include 
Alternate I in this clause in lieu of paragraph (e).

    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder provisions which shall conform 
substantially to the language of this clause, including this paragraph, 
unless otherwise authorized by the contracting officer.

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 61 
FR 57339, Nov. 6, 1996; 63 FR 46899, Sept. 3, 1998]



1552.209-72  Organizational conflict of interest certification.

    As prescribed in 1509.507-1(b), insert the following provision in 
all solicitation documents when applicable.

      Organizational Conflict of Interest Certification (APR 1984)

    The offeror [ ] is [ ] is not aware of any information bearing on 
the existence of any potential organizational conflict of interest. If 
the offeror is aware of information bearing on whether a potential 
conflict may exist, the offeror shall provide a disclosure statement 
describing this information. (See section L of the solicitation for 
further information.)

                           (End of provision)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994]



1552.209-73  Notification of conflicts of interest regarding personnel.

    As prescribed in 1509.507-2(b) insert the following clause:

  Notification of Conflicts of Interest Regarding Personnel (MAY 1994)

    (a) In addition to the requirements of the contract clause entitled 
``Organizational Conflicts of Interest,'' the following provisions with 
regard to employee personnel performing under this contract shall apply 
until the earlier of the following two dates: the termination date of 
the affected employee(s) or the expiration date of the contract.
    (b) The Contractor agrees to notify immediately the EPA Project 
Officer and the Contracting Officer of (1) any actual or potential 
personal conflict of interest with regard to any of its employees 
working on or having access to information regarding this contract, or 
(2) any such conflicts concerning subcontractor employees or consultants 
working on or having access to information regarding this contract, when 
such conflicts have been reported to the Contractor. A personal conflict 
of interest is defined as a relationship of an employee, subcontractor 
employee, or consultant with an entity that may impair the objectivity 
of the employee, subcontractor employee, or consultant in performing the 
contract work.
    (c) The Contractor agrees to notify each Project Officer and 
Contracting Officer prior to incurring costs for that employee's work 
when an employee may have a personal conflict of interest. In the event 
that the personal conflict of interest does not become known until after 
performance on the contract begins, the Contractor shall immediately 
notify the Contracting Officer of the personal conflict of interest. The 
Contractor shall continue performance of this contract until notified by 
the Contracting Officer of the appropriate action to be taken.
    (d) The Contractor agrees to insert in any subcontract or consultant 
agreement placed

[[Page 62]]

hereunder, except for subcontracts or consultant agreements for well 
drilling, fence erecting, plumbing, utility hookups, security guard 
services, or electrical services, provisions which shall conform 
substantially to the language of this clause, including this paragraph 
(d), unless otherwise authorized by the Contracting Officer.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994]



1552.209-74  Limitation of future contracting.

    As prescribed in 1509.507-2(c), insert the following clause or 
alternate:

           Limitation of Future Contracting (ARCS) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) The Contractor will be ineligible to enter into a contract for 
remedial action projects for which the Contractor has developed the 
statement of work or the solicitation package.
    (c) The following applies when ARCS work is performed under this 
contract and when both ARCS work and Field Investigative Team (FIT) work 
are performed on the same site under this contract: Unless prior written 
approval is obtained from the cognizant EPA Contracting Officer, the 
Contractor, during the life of the work assignment and for a period of 
five (5) years after the completion of the work assignment, agrees not 
to enter into a contract with or to represent any party, other than EPA, 
with respect to: (1) any work relating to CERCLA activities which 
pertain to a site where the Contractor previously performed work for EPA 
under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.
    (d) The following applies to FIT work at sites under this contract 
where only FIT work is performed, except for those sites where EPA has 
made a determination of ``no further remedial action planned'' (NFRAP): 
Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of three (3) years after the completion of 
the work assignment, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.

[[Page 63]]

    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting Alternate I (TCRR) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the delivery 
order or tasking document and for a period of five (5) years after the 
completion of the delivery order or tasking document, agrees not to 
enter into a contract with or to represent any party, other than EPA, 
with respect to: (1) any work relating to CERCLA activities which 
pertain to a site where the Contractor previously performed work for EPA 
under this contract; or (2) any work that may jeopardize CERCLA 
enforcement actions which pertain to a site where the Contractor 
previously performed work for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA within the Contractor's Time 
Critical Rapid Response (TCRR) assigned geographical area(s), either as 
a prime contractor, subcontractor, or consultant.
    (2) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA as a prime contractor, 
subcontractor or consultant at a site where it has performed or plans to 
perform TCRR work.
    (3) It will be ineligible for award of TAT type activities contracts 
for sites within its respective TCRR assigned geographical area(s) which 
result from a CERCLA administrative order, a CERCLA or RCRA consent 
decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit

[[Page 64]]

its request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting, Alternate II (TAT) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the technical 
direction document and for a period of five (5) years after the 
completion of the technical direction document, agrees not to enter into 
a contract with or to represent any party, other than EPA, with respect 
to: (1) Any work relating to CERCLA activities which pertain to a site 
where the Contractor previously performed work for EPA under this 
contract; or (2) any work that may jeopardize CERCLA enforcement actions 
which pertain to a site where the Contractor previously performed work 
for the EPA under this contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide to EPA cleanup services (e.g., Time Critical 
Rapid Response (TCRR) contracts) within the Contractor's Technical 
Assistance Team (TAT) assigned geographical area(s), either as a prime 
Contractor, subcontractor, or consultant.
    (2) Unless an individual design for the site has been prepared by a 
third party, it will not provide to EPA as a prime contractor, 
subcontractor or consultant any remedial construction services at a site 
where it has performed or plans to perform TAT work. This clause will 
not preclude TAT contractors from performing construction management 
services under other EPA contracts.
    (3) It will be ineligible for award of TCRR type activities 
contracts for sites within its respective TAT assigned geographical 
area(s) which result from a CERCLA administrative order, a CERCLA or 
RCRA consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer

[[Page 65]]

will review and evaluate each request on a case-by-case basis before 
approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

    Limitation of Future Contracting; Alternate III (ESAT) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (d) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (e) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (f) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (g) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

     Limitation of Future Contracting, Alternate IV (TES) (DEC 1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) During the performance period of this contract, the Contractor 
will be ineligible to enter into any contract for remedial planning and/
or implementation projects for sites within the assigned geographical 
area(s) covered by this contract without the prior written approval of 
the EPA Contracting Officer.
    (c) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required

[[Page 66]]

to develop specifications or statements of work and such specifications 
or statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (d) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the work 
assignment and for a period of seven (7) years after the completion of 
the work assignment, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (h) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (i) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (j) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting, Alternate V (Headquarters Support) 
                               (MAY 1994)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor, during the life of this contract, will be 
ineligible to enter into a contract with EPA to perform response action 
work (e.g., Alternative Remedial Contracting Strategy (ARCS), Time 
Critical Rapid Response (TCRR), Technical Assistance Team (TAT), and 
Technical Enforcement Support (TES) contracts), unless otherwise 
authorized by the Contracting Officer.
    (d) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering

[[Page 67]]

into a contract subject to the restrictions of this clause, then the 
bids/proposals are submitted at the Contractor's own risk. Therefore, no 
claim shall be made against the Government to recover bid/proposal costs 
as a direct cost whether the request for authorization to enter into the 
contract is denied or approved.
    (e) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (f) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (f) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (g) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (h) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting; Alternate VI (Site Specific) (DEC 
                                  1997)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the contract and 
for a period of five (5) years after the expiration of the contract 
agrees not to enter into a contract with or to represent any party, 
other than EPA, with respect to: (1) any work relating to CERCLA 
activities which pertain to the site where the Contractor previously 
performed work for EPA under this contract; or (2) any work that may 
jeopardize CERCLA enforcement actions which pertain to the site where 
the Contractor previously performed work for the EPA under this 
contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Technical Assistance Team (TAT) type 
activities (e.g., TAT contracts) to EPA on the site either as a prime 
contractor, subcontractor, or consultant.
    (2) It will be ineligible for award of contracts pertaining to this 
site which result from a CERCLA administrative order, a CERCLA or RCRA 
consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of

[[Page 68]]

this clause, then the bids/proposals are submitted at the Contractor's 
own risk. Therefore, no claim shall be made against the Government to 
recover bid/proposal costs as a direct cost whether the request for 
authorization to enter into the contract is denied or approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (h) Contractors who are performing nondiscretionary technical or 
engineering services, including construction work, may request a waiver 
from or modification to this clause by submitting a written request to 
the Contracting Officer. The Contracting Officer shall make the 
determination regarding whether to waive or modify the clause on a case-
by-case basis.
    (i) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (i) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (j) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (k) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994, as amended at 62 FR 5348, Feb. 5, 1997; 63 
FR 692, Jan. 7, 1998; 65 FR 37292, June 14, 2000]



1552.209-75  Annual certification.

    As prescribed in 1509.507-2(d), insert the following clause:

                     Annual Certification (MAY 1994)

    The Contractor shall submit an annual conflict of interest 
certification to the Contracting Officer. In this certification, the 
Contractor shall certify annually that, to the best of the Contractor's 
knowledge and belief, all actual or potential organizational conflicts 
of interest have been reported to EPA. In addition, in this annual 
certification, the Contractor shall certify that it has informed its 
personnel who perform work under EPA contracts or relating to EPA 
contracts of their obligation to report personal and organizational 
conflicts of interest to the Contractor. Such certification must be 
signed by a senior executive of the company and submitted in accordance 
with instructions provided by the Contracting Officer. The initial 
certification shall cover the one-year period from the date of contract 
award, and all subsequent certifications shall cover successive annual 
periods thereafter, until expiration or termination of the contract. The 
certification must be received by the Contracting Officer no later than 
45 days after the close of the certification period covered.

                             (End of clause)

[59 FR 18623, Apr. 19, 1994. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997]



1552.209-76  Contractor performance evaluations.

    As prescribed in section 1509.170-1, insert the following clause in 
all applicable solicitations and contracts.

            Contractor Performance Evaluations (October 2002)

    The contracting officer shall complete a Contractor Performance 
Report (Report) within ninety (90) business days after the end of each 
12 months of contract performance (interim Report) or after the last 12 
months (or less) of contract performance (final Report) in accordance 
with EPAAR 1509.170-5. The contractor shall be evaluated based on the 
following ratings: 0 = Unsatisfactory, 1 = Poor, 2 = Fair, 3 = Good, 4 = 
Excellent, 5 = Outstanding, N/A = Not Applicable.

[[Page 69]]

    The contractor may be evaluated based on the following performance 
categories: Quality, Cost Control, Timeliness of Performance, Business 
Relations, Compliance with Labor Standards, Compliance with Safety 
Standards, and Meeting Small Disadvantaged Business Subcontracting 
Requirements.
    (a) The contracting officer shall initiate the process for 
completing interim Reports within five (5) business days after the end 
of each 12 months of contract performance by requesting the project 
officer to evaluate contractor performance for the interim Report. In 
addition, the contracting officer shall initiate the process for 
completing final Reports within five (5) business days after the last 12 
months (or less) of contract performance by requesting the project 
officer to evaluate contractor performance for the final Report. The 
final Report shall cover the last 12 months (or less) of contract 
performance. Within thirty (30) business days after the project officer 
receives a request from the contracting officer to complete an 
evaluation, the project officer shall:
    (1) Complete a description of the contract requirements;
    (2) Evaluate contractor performance and assign a rating for quality, 
cost control, timeliness of performance, compliance with labor 
standards, and compliance with safety standards performance categories 
(including a narrative for each rating);
    (3) Provide any information regarding subcontracts, key personnel, 
and customer satisfaction;
    (4) Assign a recommended rating for the business relations 
performance category (including a narrative for the rating); and
    (5) Provide additional information appropriate for the evaluation or 
future evaluations.
    (b) The contracting officer shall:
    (1) Ensure the accuracy of the project officer's evaluation by 
verifying that the information in the contract file corresponds with the 
designated project officer's ratings;
    (2) Assign a rating for the business relations and meeting small 
disadvantaged business subcontracting requirements performance 
categories (including a narrative for each rating).
    (3) Concur with or revise the project officer's ratings after 
consultation with the project officer;
    (4) Provide any additional information concerning the quality, cost 
control, timeliness of performance, compliance with labor standards, and 
compliance with safety standards performance categories if deemed 
appropriate for the evaluation or future evaluations (if any), and 
provide any information regarding subcontracts, key personnel, and 
customer satisfaction; and
    (5) Forward the Report to the contractor within ten (10) business 
days after the contracting officer receives the project officer's 
evaluation.
    (c) The contractor shall be granted thirty (30) business days from 
the date of the contractor's receipt of the Report to review and provide 
a response to the contracting officer regarding the contents of the 
Report. The contractor shall:
    (1) Review the Report;
    (2) Provide a response (if any) to the contracting officer on 
company letter head or electronically;
    (3) Complete contractor representation information; and
    (4) Forward the Report to the contracting officer within the 
designated thirty (30) business days.
    (d) The contractor's response to the Report may include written 
comments, rebuttals (disagreements), or additional information. If the 
contractor does not respond to the Report within the designated thirty 
(30) business days, the specified ratings in the Report are deemed 
appropriate for the evaluation period. In this instance, the contracting 
officer shall complete the Agency review and sign the Report within 
three (3) business days after expiration of the specified 30 business 
days.
    (e) If the contractor submits comments, rebuttals (disagreements), 
or additional information to the contracting officer which contests the 
ratings, the contracting officer, in consultation with the project 
officer, shall initially try to resolve the disagreement(s) with the 
contractor.
    (f) If the disagreement(s) is (are) not resolved between the 
contractor and the contracting officer, the contracting officer shall 
provide a written recommendation to one level above the contracting 
officer for resolution as promptly as possible, but no later than five 
(5) business days after the contracting officer is made aware that the 
disagreement(s) has (have) not been resolved with the contractor. The 
individual who is one level above the contracting officer shall:
    (1) Review the contracting officer's written recommendation; and
    (2) Provide a written determination to the contracting officer for 
summary ratings (ultimate conclusion for ratings pertaining to the 
performance period being evaluated) within five (5) business days after 
the individual one level above the contracting officer receives the 
contracting officer's written recommendation.
    (g) If the disagreement is resolved, the contracting officer shall 
complete the Agency review and sign the Report within three (3) business 
days after consultation.
    (h) The contracting officer shall complete the Agency review and 
sign the Report within three (3) business days after the contracting 
officer receives a written determination for summary ratings from one 
level above the contracting officer.

[[Page 70]]

    (i) An interim or final Report is considered completed after the 
contracting officer signs the Report. The contracting officer must 
provide a copy of completed Reports (interim and final) to the 
contractor within two (2) business days after completion.

[64 FR 20204, Apr. 26, 1999, as amended at 67 FR 66344, Oct. 31, 2002]



1552.210-71  [Reserved]



1552.210-73--1552.210-74  [Reserved]



1552.211-70  Reports of work.

    As prescribed in 1511.011-70, insert one of the contract clauses in 
this subsection when the contract requires the delivery of reports, 
including plans, evaluations, studies, analyses and manuals. The basic 
clause should be used when reports are specified in a contract 
attachment. Alternate I is to be used to specify reports in the contract 
schedule.

                       Reports of Work (OCT 2000)

    The Contractor shall prepare and deliver reports, including plans, 
evaluations, studies, analyses and manuals in accordance with Attachment 
--------------------. Each report shall cite the contract number, 
identify the U.S. Environmental Protection Agency as the sponsoring 
agency, and identify the name of the contractor preparing the report.
    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005 with an expiration date of February 28, 2003.

                             (End of clause)

    Alternate I (OCT 2000). The Contractor shall prepare and deliver the 
below listed reports, including plans, evaluations, studies, analyses 
and manuals to the designated addressees. Each report shall cite the 
contract number, identify the U.S. Environmental Protection Agency as 
the sponsoring agency, and identify the name of the contractor preparing 
the report.
    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005 with an expiration date of February 28, 2003. 
Required reports are:

------------------------------------------------------------------------
           Reports description              No. copies     Addressees
------------------------------------------------------------------------
                                           ...........  ................
                                           ...........  ................
                                           ...........  ................
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997; 63 FR 10549, Mar. 4, 1998; 63 FR 
46899, Sept. 3, 1998; 65 FR 58924, Oct. 3, 2000; 66 FR 28674, May 24, 
2001]



1552.211-72  Monthly progress report.

    As prescribed in 1511.011-72, insert the following clause:

                   Monthly Progress Report (JUN 1996)

    (a) The Contractor shall furnish ------ copies of the combined 
monthly technical and financial progress report stating the progress 
made, including the percentage of the project completed, and a 
description of the work accomplished to support the cost. If the work is 
ordered using work assignments or delivery orders, include the estimated 
percentage of task completed during the reporting period for each work 
assignment or delivery order.
    (b) Specific discussions shall include difficulties encountered and 
remedial action taken during the reporting period, and anticipated 
activity with a schedule of deliverables for the subsequent reporting 
period.
    (c) The Contractor shall provide a list of outstanding actions 
awaiting Contracting Officer authorization, noted with the corresponding 
work assignment, such as subcontractor/consultant consents, overtime 
approvals, and work plan approvals.
    (d) The report shall specify financial status at the contract level 
as follows:
    (1) For the current reporting period, display the amount claimed.
    (2) For the cumulative period and the cumulative contract life 
display: the amount obligated, amount originally invoiced, amount paid, 
amount suspended, amount disallowed, and remaining approved amount. The 
remaining approved amount is defined as the total obligated amount, less 
the total amount originally invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the numbers of 
hours worked for the reporting period.
    (ii) For the current reporting period, display the expended direct 
labor hours and costs broken out by EPA contract labor hour category for 
the prime contractor and each subcontractor and consultant.
    (iii) For the cumulative contract period and the cumulative contract 
life display: the negotiated, expended and remaining direct labor hours 
and costs broken out by EPA contract labor hour category for the prime 
contractor, and each subcontractor and consultant.

[[Page 71]]

    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (4) Display the current dollar ceilings in the contract, net amount 
invoiced, and remaining amounts for the following categories: Direct 
labor hours, total estimated cost, award fee pool (if applicable), 
subcontracts by individual subcontractor, travel, program management, 
and Other Direct Costs (ODCs).
    (5) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the 
contract.
    (6) Average cost of direct labor. Compare the actual average cost 
per hour to date with the average cost per hour of the approved work 
plans for the current contract period.
    (e) The report shall specify financial status at the work assignment 
or delivery order level as follows:
    (1) For the current period, display the amount claimed.
    (2) For the cumulative period display: amount shown on workplan, or 
latest work assignment/delivery order amendment amount (whichever is 
later); amount currently claimed; amount paid; amount suspended; amount 
disallowed; and remaining approved amount. The remaining approved amount 
is defined as: the workplan amount or latest work assignment or delivery 
order amount (whichever is later), less total amounts originally 
invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the number of 
hours worked for the reporting period.
    (ii) For the current reporting period, display the expended direct 
labor hours and costs broken out by EPA contract labor hour category for 
the prime contractor and each subcontractor and consultant.
    (iii) For the current reporting period, cumulative contract period, 
and the cumulative contract life display: the negotiated, expended and 
remaining direct labor hours and costs broken out by EPA contract labor 
hour category for the prime contractor and each subcontractor and 
consultant.
    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (v) Display the estimates of remaining direct labor hours and costs 
required to complete the work assignment or delivery order.
    (4) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the work 
assignment.
    (5) Average cost of direct labor. Display the actual average cost 
per hour with the cost per hour estimated in the workplan.
    (6) A list of deliverables for each work assignment or delivery 
order during the reporting period.
    (f) This submission does not change the notification requirements of 
the ``Limitation of Cost'' or ``Limitation of Funds'' clauses requiring 
separate written notice to the Contracting Officer.
    (g) The reports shall be submitted to the following addresses on or 
before the ------ of each month following the first complete reporting 
period of the contract. See EPAAR 1552.232-70, Submission of Invoices, 
paragraph (e), for details on the timing of submittals. Distribute 
reports as follows:

------------------------------------------------------------------------
               No. of copies                          Addressee
------------------------------------------------------------------------
------------..............................  Project Officer.
------------..............................  Contracting Officer.
------------------------------------------------------------------------


[61 FR 29317, June 10, 1996. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997]



1552.211-73  Level of effort--cost-reimbursement term contract.

    As prescribed in 1511.011-73, insert the following contract clause 
in cost-reimbursement term contracts including cost contracts without 
fee, cost-sharing contracts, cost-plus-fixed-fee (CPFF) contracts, cost-
plus-incentive-fee contracts (CPIF), and cost-plus-award-fee contracts 
(CPAF).

      Level of Effort--Cost-Reimbursement Term Contract (APR 1984)

    (a) The Contractor shall perform all work and provide all required 
reports within the level of effort specified below. The Government 
hereby orders----direct labor hours for the base period, which 
represents the Government's best estimate of the level of effort to 
fulfill these requirements.
    (b) Direct labor includes personnel such as engineers, scientists, 
draftsmen, technicians, statisticians, and programmers and not support 
personnel such as company management, typists, and key punch operators 
even though such support personnel are normally treated as direct labor 
by the Contractor. The level of effort specified in paragraph (a) 
includes Contractor, subcontractor, and consultant labor hours.
    (c) If the Contractor provides less than 90 percent of the level of 
effort specified for the base period or any optional period ordered, an 
equitable downward adjustment of the fixed fee, if any, for that period 
will be made. The Government may require the Contractor to provide 
additional effort up to 110 percent of the level of effort for any 
period until the estimated cost for that period has been reached. 
However, this additional effort shall

[[Page 72]]

not result in any increase in the fixed fee, if any. If this is a cost-
plus-incentive-fee (CPIF) contract, the term ``fee'' in this paragraph 
means ``base fee and incentive fee.'' If this is a cost-plus-award-fee 
(CPAF) contract, the term ``fee'' in this paragraph means ``base fee and 
award fee.''
    (d) If the level of effort specified to be ordered during a given 
base or option period is not ordered during that period, that level of 
effort may not be acumulated and ordered during a subsequent period.
    (e) These terms and conditions do not supersede the requirements of 
either the ``Limitation of Cost'' or ``Limitation of Funds'' clauses.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997]



1552.211-74  Work assignments.

    As prescribed in 1511.011-74, insert the following contract clause 
in cost-reimbursement type term form contracts when work assignments are 
to be used.

                       Work Assignments (APR 1984)

    (a) The contractor shall perform work under this contract as 
specified in written work assignments issued by the Contracting Officer.
    (b) Each work assignment will include (1) a numerical designation, 
(2) the estimate of required labor hours, (3) the period of performance 
and schedule of deliverables, and (4) the description of the work.
    (c) The Contractor shall acknowledge receipt of each work assignment 
by returning to the Contracting Officer a signed copy of the work 
assignment within ---- calendar days after its receipt. The Contractor 
shall begin work immediately upon receipt of a work assignment. Within 
---- calendar days after receipt of a work assignment, the Contractor 
shall submit ---- copies of a work plan to the Project Officer and ---- 
copies to the Contracting Officer. The work plan shall include a 
detailed technical and staffing plan and a detailed cost estimate. 
Within ---- calendar days after receipt of the work plan, the 
Contracting Officer will provide written approval or disapproval of it 
to the Contractor. If the Contractor has not received approval on a work 
plan within ---- calendar days after its submission, the Contractor 
shall stop work on that work assignment. Also, if the Contracting 
Officer disapproves a work plan, the Contractor shall stop work until 
the problem causing the disapproval is resolved. In either case, the 
Contractor shall resume work only when the Contracting Officer finally 
approves the work plan.
    (d) This clause does not change the requirements of the ``Level of 
Effort'' clause, nor the notification requirements of either the 
``Limitation of Cost'' or ``Limitation of Funds'' clauses.
    (e) Work assignments shall not allow for any change to the terms or 
conditions of the contract. Where any language in the work assignment 
may suggest a change to the terms or conditions, the Contractor shall 
immediately notify the Contracting Officer.

                             (End of clause)

    Alternate I. As prescribed in 1512.104(b), modify the existing 
clause by adding the following paragraph (f) to the basic clause:

    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
certification. Where work assignments or similar tasking documents are 
issued under this contract for work on or directly related to a site, 
the Contractor is only required to provide a conflict of interest 
certification for the first work assignment issued for that site. For 
all subsequent work on that site under this contract, the Contractor has 
a continuing obligation to search and report any actual or potential 
conflicts of interest, but no additional conflict of interest 
certifications are required.
    Before submitting the conflict of interest certification, the 
contractor shall search its records accumulated, at a minimum, over the 
past three years immediately prior to the receipt of the work assignment 
or similar tasking document. In the COI certification, the Contractor 
must certify to the best of the Contractor's knowledge and belief, that 
all actual or potential organizational conflicts of interest have been 
reported to the Contracting Officer or that to the best of the 
Contractor's knowledge and belief, no actual or potential organizational 
conflicts of interest exist. In addition, the Contractor must certify 
that its personnel who perform work under this work assignment or 
relating to this work assignment have been informed of their obligation 
to report personal and organizational conflicts of interest to the 
Contractor. The certification shall also include a statement that the 
Contractor recognizes its continuing obligation to identify and report 
any actual or potential conflicts of interest arising during performance 
of this work assignment or other work related to this site.

    Alternate II. As prescribed in 1512.104(b), modify the existing 
clause by adding the following paragraph (f) to the basic clause:


[[Page 73]]


    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
certification. Where work assignments or similar tasking documents are 
issued under this contract for work on or directly related to a site, 
the Contractor is only required to provide a conflict of interest 
certification for the first work assignment issued for that site. For 
all subsequent work on that site under this contract, the Contractor has 
a continuing obligation to search and report any actual or potential 
conflicts of interest, but no additional conflict of interest 
certifications are required.
    Before submitting the conflict of interest certification, the 
contractor shall initially search through all of its available records 
to identify any actual or potential conflicts of interest. During the 
first three years of this contract, the contractor shall search through 
all records created since the beginning of the contract plus the records 
of the contractor prior to the award of the contract until a minimum of 
three years of records are accumulated. Once three years of records have 
accumulated, prior to certifying, the contractor shall search its 
records accumulated, at a minimum, over the past three years immediately 
prior to the receipt of the work assignment or similar tasking document. 
In the certification, the Contractor must certify to the best of the 
Contractor's knowledge and belief, that all actual or potential 
organizational conflicts of interest have been reported to the 
Contracting Officer or that to the best of the Contractor's knowledge 
and belief, no actual or potential organizational conflicts of interest 
exist. In addition, the Contractor must certify that its personnel who 
perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal and 
organizational conflicts of interest to the Contractor. The 
certification shall also include a statement that the Contractor 
recognizes its continuing obligation to identify and report any actual 
or potential conflicts of interest arising during performance of this 
work assignment or other work related to this site.

                             (End of clause)

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18624, Apr. 19, 1994. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997]



1552.211-75  Working files.

    As prescribed in 1511.011-75, insert the following clause in all 
applicable EPA contracts.

                        Working Files (APR 1984)

    The Contractor shall maintain accurate working files (by task or 
work assignment) on all work documentation including calculations, 
assumptions, interpretations of regulations, sources of information, and 
other raw data required in the performance of this contract. The 
Contractor shall provide the information contained in its working files 
upon request of the Contracting Officer.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 21994, May 4, 1995. Redesignated at 61 FR 57339, Nov. 6, 
1996, as amended at 62 FR 33573, June 20, 1997]



1552.211-76  Legal analysis.

    As prescribed in 1511.011-76, insert this contract clause when it is 
determined that the contract involves legal analysis.

                        Legal Analysis (APR 1984)

    The Contractor shall furnish to the Project Officer one (1) copy of 
any draft legal analysis. The Government will provide a response to the 
Contractor within thirty (30) calendar days after receipt. The 
Contractor shall not finalize the analysis until the Government has 
given approval.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 60 FR 21994, May 4, 1995. Redesignated at 61 FR 57339, 
Nov. 6, 1996, as amended at 62 FR 33573, June 20, 1997]



1552.211-77  Final reports.

    As prescribed in 1511.011-77, insert this contract clause when a 
contract requires a draft and a final report.

                        Final Reports (APR 1984)

    (a) ``Draft Report''--The Contractor shall submit to the Project 
Officer ---- copies of the draft final report on or before ---- (date) 
---- The Contractor shall furnish to the Contracting Officer a copy of 
the letter transmitting the draft. The draft shall be typed double-
spaced or space-and-a-half and shall include all pertinent material 
required in the final report. The Government will review for approval or 
disapproval the draft and provide a response to the Contractor within --
-- calendar days after receipt. If the Government does not provide a 
response within the

[[Page 74]]

allotted review time, the Contractor immediately shall notify the 
Contracting Officer in writing.
    (b) ``Final Report''--The Contractor shall deliver a final report on 
or before the last day of the period of performance specified in the 
contract. Distribution is as follows:

------------------------------------------------------------------------
             No. of copies                          Addressee
------------------------------------------------------------------------
1.....................................  EPA Library.
1.....................................  Contracting Officer.
1.....................................  Project Officer.
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 60 FR 21994, May 4, 1995. Redesignated at 61 FR 57339, 
Nov. 6, 1996, as amended at 62 FR 33573, June 20, 1997]



1552.211-78  Management consulting services.

    As prescribed in 1511.011-78, insert the following contract clause 
in all contracts for management consulting services.

                Management Consulting Services (APR 1985)

    All reports containing recommendations to the Environmental 
Protection Agency shall include the following information on the cover 
of each report: (a) Name and business address of the contractor; (b) 
contract number; (c) contract dollar amount; (d) whether the contract 
was subject to full and open competition or a sole source acquisition; 
(e) name of the EPA Project Officer and the EPA Project Officer's office 
identification and location; and (f) date of report.

                             (End of clause)

[50 FR 14360, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985. Redesignated at 
55 FR 39622, Sept. 28, 1990, as amended at 60 FR 21994, May 4, 1995. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997]



1552.211-79  Compliance with EPA Policies for Information Resources Management.

    As prescribed in 1511.011-79, insert the following clause:

 Compliance With EPA Policies for Information Resources Management (OCT 
                                  2000)

    (a) Definition. Information Resources Management (IRM) is defined as 
any planning, budgeting, organizing, directing, training, promoting, 
controlling, and managing activities associated with the burden, 
collection, creation, use and dissemination of information. IRM includes 
both information itself, and the management of information and related 
resources such as personnel, equipment, funds, and technology. Examples 
of these services include but are not limited to the following:
    (1) The acquisition, creation, or modification of a computer program 
or automated data base for delivery to EPA or use by EPA or contractors 
operating EPA programs.
    (2) The analysis of requirements for, study of the feasibility of, 
evaluation of alternatives for, or design and development of a computer 
program or automated data base for use by EPA or contractors operating 
EPA programs.
    (3) Services that provide EPA personnel access to or use of computer 
or word processing equipment, software, or related services.
    (4) Services that provide EPA personnel access to or use of: Data 
communications; electronic messaging services or capabilities; 
electronic bulletin boards, or other forms of electronic information 
dissemination; electronic record-keeping; or any other automated 
information services.
    (b) General. The Contractor shall perform any IRM related work under 
this contract in accordance with the IRM policies, standards and 
procedures set forth in this clause and noted below. Upon receipt of a 
work request (i.e. delivery order or work assignment), the Contractor 
shall check this listing of directives (see paragraph (d) for electronic 
access). The applicable directives for performance of the work request 
are those in effect on the date of issuance of the work request.
    (1) IRM Policies, Standards and Procedures. The 2100 Series (2100-
2199) of the Agency's Directive System contains the majority of the 
Agency's IRM policies, standards and procedures.
    (2) Groundwater Program IRM Requirement. A contractor performing any 
work related to collecting Groundwater data; or developing or enhancing 
data bases containing Groundwater quality data shall comply with EPA 
Order 7500.1A--Minimum Set of Data Elements for Groundwater.
    (3) EPA Computing and Telecommunications Services. The Enterprise 
Technology Services Division (ETSD) Operational Directives Manual 
contains procedural information about the operation of the Agency's 
computing and telecommunications services. Contractors performing work 
for the Agency's National Computer Center or those who are developing 
systems which will be operating on the Agency's national platforms must 
comply with procedures established in the Manual. (This document may be 
found at: http://basin.rtpnc.epa.gov/etsd/directives.nsf).
    (c) Printed Documents. Documents listed in (b)(1) and (b)(2) may be 
obtained from: U.S. Environmental Protection Agency Office of 
Administration Facilities Management and

[[Page 75]]

Services Division Distribution Section Mail Code: 3204 1200 Pennsylvania 
Ave., NW., Washington, DC 20460 Phone: (202) 260-5797
    (d) Electronic access. A complete listing, including full text, of 
documents included in the 2100 Series of the Agency's Directive System 
is maintained on the EPA Public Access Server on the Internet at http://
epa.gov/docs/irmpoli8/.

                             (End of clause)

[56 FR 42236, Aug. 27, 1991, as amended at 61 FR 33693, June 28, 1996. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997; 65 FR 47325, Aug. 2, 2000; 65 FR 58924, Oct. 3, 2000; 66 
FR 28674, May 24, 2001; 66 FR 34376, June 28, 2001; 67 FR 5072, Feb. 4, 
2002]



1552.211-80  Data standards for the transmission of laboratory measurement results.

    As prescribed in 1511.011-80, insert the following clause:

 Data Standards for the Transmission of Laboratory Measurement Results 
                               (OCT 2000)

    This contract requires the transmission of environmental 
measurements to EPA. The transmission of environmental measurements 
shall be in accordance with the provisions of EPA Order 2180.2, dated 
December 10, 1987, which is incorporated by reference in this contract. 
Copies of the Order may be obtained by written request to: Office of 
Information Resources Management, Information Management and Systems 
Division, Mail Code (3404), Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW, Washington, DC 20460.

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



1552.213-70  Notice to suppliers of equipment.

    As prescribed in 1513.507(b), the Contracting Officer shall insert 
the following contract clause in orders for or lease of commercially 
available equipment.

               Notice to Suppliers of Equipment (APR 1984)

    (a) It is the general policy of the Environmental Protection Agency 
that Contractor or vendor prescribed leases or maintenance agreements 
for equipment will NOT be executed.
    (b) Performance in accordance with the terms and conditions of the 
vendor's commercial lease, or customer service maintenance agreement, 
unless specified in the Schedule, may render the vendor's performance 
unacceptable, thereby permitting the Government to apply such 
contractual remedies as may be permitted by law, regulation, or the 
terms of this order.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



1552.214-71  Contract award--other factors--formal advertising.

    As prescribed in 1514.201-6(b), insert the following solicitation 
provision in invitations for bids (IFB) when it is appropriate to 
describe other factors that will be used in evaluating bids for award. 
This provision is used to describe the other factors mentioned in the 
solicitation provisions ``Contract Award--Formal Advertising'' (FAR 
52.214-10), and ``Contract Award--Construction'' (FAR 52.214-19). All 
other evaluation provisions in the IFB (e.g., evaluation of options) 
should be cross-referenced in this provision. The other factors set 
forth in the provision should represent a consolidated statement of the 
exact basis upon which bids will be evaluated for award.

      Contract Award--Other Factors--Formal Advertising (APR 1984)

    The Government will award a contract resulting from this 
solicitation as stated in the ``Contract Award'' provision. The other 
factors that will be considered are:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                           (End of provision)



1552.215-70  EPA source evaluation and selection procedures--negotiated procurements.

    As prescribed in 1515.209(a), insert the following provision:

EPA Source Evaluation and Selection Procedures--Negotiated Procurements 
                               (AUG 1999)

    (a) The Government will perform source selection in accordance with 
FAR Part 15 and the EPA Source Evaluation and Selection Procedures in 
EPAAR Part 1515 (48 CFR Part 1515). The significant features of this 
procedure are:
    (1) The Government will perform either cost analysis or price 
analysis of the

[[Page 76]]

offeror's cost/business proposal in accordance with FAR Parts 15 and 31, 
as appropriate. In addition, the Government will also evaluate proposals 
to determine contract cost or price realism.
    Cost or price realism relates to an offeror's demonstrating that the 
proposed cost or price provides an adequate reflection of the offeror's 
understanding of the requirements of this solicitation, i.e., that the 
cost or price is not unrealistically low or unreasonably high.
    (2) The Government will evaluate technical proposals as specified in 
1552.215-71, Evaluation Factors for Award.
    (b) In addition to evaluation of the previously discussed elements, 
the Government will consider in any award decision the responsibility 
factors set forth in FAR Part 9.

                           (End of provision)

[61 FR 47067, Sept. 6, 1996, as amended at 61 FR 57339, Nov. 6, 1996; 64 
FR 47415, Aug. 31, 1999]



1552.215-71  Evaluation factors for award.

    As prescribed in 1515.209(a), insert one of the following 
provisions.

                 Evaluation Factors for Award (AUG 1999)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
significantly more important than cost or price.
    (b) Evaluation factors and significant subfactors to determine 
quality of product or service:

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

     Evaluation Factors for Award (AUG 1999)--Alternate I (AUG 2000)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
significantly less important than cost or price.
    (b) Evaluation factors and significant subfactors to determine 
quality of product or service:

________________________________________________________________________

                           (End of provision)

________________________________________________________________________

    Evaluation Factors for Award (AUG 1999)--Alternate II (AUG 2000)

    (a) The Government will make award to the responsible offeror(s) 
whose offer conforms to the solicitation and is most advantageous to the 
Government cost or other factors considered. For this solicitation, all 
evaluation factors other than cost or price when combined are 
approximately equal to cost or price.
    (b) Evaluation factors and significant subfactors to determine the 
quality of product or service:

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

    Evaluation Factors for Award (AUG 1999)--Alternate III (AUG 2000)

    (a) The Government will make award to the offeror with the lowest-
evaluated cost or price, whose proposal meets or exceeds the 
acceptability standards for non-cost factors. In the event that there 
are two or more technically acceptable, equal price (cost) offers, the 
Government will consider socioeconomic, environmental and other similar 
factors, as listed below in descending order of importance:

________________________________________________________________________

________________________________________________________________________

    (b) Factors and significant subfactors for technical acceptability 
evaluation:

________________________________________________________________________

________________________________________________________________________

    (c) Factors for past performance evaluation (optional):

________________________________________________________________________

________________________________________________________________________

                           [End of provision]

[64 FR 47415, Aug. 31, 1999]



1552.215-72  Instructions for the Preparation of Proposals.

    As prescribed in 1515.408(a)(1) insert the following provision:

        Instructions for the Preparation of Proposals (AUG 1999)

    (a) Other than cost proposal instructions.
    (1) Submit proposal for than cost factors as a separate part of the 
total proposal package. Omit all cost or pricing details from this 
proposal.
    (2) Special proposal instructions:

________________________________________________________________________


[[Page 77]]

________________________________________________________________________
________________________________________________________________________

________________________________________________________________________

    (b) Cost or pricing proposal instructions. The offeror shall prepare 
and submit cost or pricing information data and supporting attachments 
in accordance with Table 15-2 of FAR 15.408. In addition to a hard copy 
of the information, to expedite review of the proposal, submit a 3.5'' 
high density IBM-compatible formatted computer disk containing the 
financial data required, if this information is available using a 
commercial spreadsheet program on a personal computer. Submit this 
information using LOTUS 1-2-3, if available. Identify which version of 
LOTUS used. If the offeror used another spreadsheet program, indicate 
the software program used to create this information. Offerors should 
include the formulas and factors used in calculating the financial data. 
Although submission of a computer disk will expedite review, failure to 
submit a disk will not affect consideration of the proposal.
    (1) General--Submit cost or pricing information prepared in 
accordance with FAR Table 15-2, Instructions for Submitting Cost/Price 
Proposals When Cost or Pricing Information Are Required and the 
following:
    (i) Clearly identify separate cost or pricing information associated 
with any:
    (A) Options to extend the term of the contract;
    (B) Options for the Government to order incremental quantities; and/
or
    (C) Major tasks, if required by the special instructions.
    (ii) If the contract schedule includes a ``Fixed Rate for Services'' 
clause, please provide in the cost proposal a schedule duplicating the 
format in the clause and include proposed fixed hourly rates per labor 
category for the base and any optional contract periods.
    (iii) If the contract includes the clause at EPAAR 1552.232-73 
``Payments--Fixed-Rate Services Contract,'' or the clause at FAR 52.232-
7, ``Payments Under Time and Materials and Labor-Hour Contracts,'' 
include in the cost proposal the estimated costs and burden rate to be 
applied to materials, other direct costs, or subcontracts. The 
Government will include these costs as part of its cost proposal 
evaluation.
    (iv) If other divisions, subsidiaries, a parent or affiliated 
companies will perform work, provide the name and location of such 
affiliate and offeror's intercompany pricing policy. Separately identify 
costs and supporting data for each entity proposed.
    (v) The realism of costs, including personnel compensation rates 
(including effective hourly rates due to uncompensated overtime) will be 
part of the proposal evaluation. Any reductions to proposed costs or 
differences between proposed and known EPA/DCAA recommended rates must 
be fully explained. If an offeror makes a reduction which makes its 
offer or portions of its offer below anticipated costs, the offeror 
shall identify where (i.e., which elements of costs) the proposed 
reductions will be made. Unsubstantiated rates may result in an upward 
or downward adjustment of the cost proposals to reflect more realistic 
costs. Based on this analysis, a projected cost for the offeror will be 
calculated to reflect the Government's estimate of the offeror's 
probable costs. Any inconsistency, whether real or apparent, between the 
promised performance and cost or price should be explained. The burden 
of proof for cost credibility rests with the offeror.
    (2) Direct Labor.
    (i) The direct technical labor hours (level-of-effort) appearing in 
the solicitation are for professional and technical labor only. These 
hours do not include management at a level higher than project 
management, e.g., corporate and day-to-day management, nor do they 
include clerical and support staff at a level lower than technician. If 
it is the offeror's normal practice to charge these types of costs as 
direct costs, include these costs along with an estimate of the directly 
chargeable labor-hours for these personnel. These direct charges are to 
be shown separately from the technical (level-of-effort) effort. If this 
type of effort is normally included in the offeror's indirect cost 
allocations, no estimate is required. However, direct charging of these 
on any resulting contract will not be allowed. Additionally the direct 
technical labor hours are the workable hours required by the Government 
and do not include release time (i.e., holidays, vacation, etc.) Submit 
the proposal utilizing the labor categories and distribution of the 
level-of-effort specified in the solicitation. These are approximate 
distribution levels and do not necessarily represent the actual levels 
which may be experienced during contract performance.
    (ii) Explain the basis of the proposed labor rates, including a 
complete justification for all judgmental factors used to develop 
weights applied to company's category or individual rates that comprise 
the rates for labor categories specified in the solicitation. This 
explanation should describe how technical approach coincides with the 
proposed costs. If the proposed direct labor rates are based on an 
average of the individuals proposed to work on the contract, provide a 
list of the individuals proposed and the hours associated with each 
individual in deriving the rates. If the proposed direct labor rates are 
based on an average of company category rates, identify and describe the 
labor categories and the percentages associated with each category in 
deriving the rates, explaining in detail the basis for the percentages 
assigned.

[[Page 78]]

    (iii) Describe for each labor category proposed, the company's 
qualifications and experience requirements. If individual rates are 
used, provide the employee's name. If specific individuals are 
identified in the technical proposal, correlate these individuals with 
the labor categories specified in the solicitation.
    (iv) Provide a matrix summarizing the effort proposed, including the 
subcontracts, by professional and technical level specified in the 
solicitation.
    (v) Indicate whether current rates or escalated rates are used. If 
escalation is included, state the degree (percent) and methodology. The 
methodology shall include the effective date of the base rates and the 
policy on salary reviews (e.g. anniversary date of employee or salary 
reviews for all employees on a specific date).
    (vi) State whether any additional direct labor (new hire or 
temporary hires) will be required during the performance period of this 
acquisition. If so, state the number required, the professional or 
technical level and the methodology used to estimate proposed labor 
rates.
    (vii) With respect to educational institutions, include the 
following information for those professional staff members whose salary 
is expected to be covered by a stipulated salary support agreement 
pursuant to OMB Circular A-21.
    (A) Individual's name;
    (B) Annual salary and the period for which the salary is applicable;
    (C) List of other research Projects or proposals for which salaries 
are allocated, and the proportionate time charged to each; and
    (D) Other duties, such as teaching assignments, administrative 
assignments, and other institutional activities. Show the proportionate 
time charged to each. (Show proportionate time charges as a percentage 
of 100% of time for the entire academic year, exclusive of vacation or 
sabbatical leave.)
    (viii) Uncompensated overtime. The decision to propose uncompensated 
overtime is the offeror's decision. Should the offeror, however, elect 
to propose uncompensated overtime, the offeror must propose a 
methodology that is consistent with their cost accounting practices and 
company policy. If proposed, provide an estimate of any uncompensated 
overtime proposed for exempt personnel working at the offeror's 
facilities. This estimate should identify the number of uncompensated 
labor hours and the percentage of compensated labor. Uncompensated labor 
hours are defined as hours for exempt personnel in excess of regular 
hours for a pay period which are actually worked and recorded in 
accordance with company policy. Provide a copy of the company policy on 
uncompensated overtime. Provide historical percentages of uncompensated 
overtime for the past three years. If proposed for subcontractors, 
provide separately with subcontractor information.
    (ix) For labor rate contracts, for each fixed labor rate, offerors 
shall identify the basis for for the loaded fixed hourly rate for each 
contract period for example, the rate might consist of the following 
cost elements: raw wage or salary rate, plus fringe benefits (if 
applicable), plus overhead rate (if applicable), plus G&A expense rate 
(if applicable), plus profit.
    When determining the composite raw wage for a labor category, the 
offeror shall:
    (A) provide in narrative form the basis for the raw wage for each 
labor category. If actual wages of current employees are used, the basis 
for the projections should be explained.
    (B) If employees are subject to the Service Contract Act or Davis 
Bacon Act, they must be compensated at least at the minimum wage rate 
required by the applicable Wage Determination.
    (3) Indirect costs (fringe, overhead, general, and administrative 
expenses).
    (i) If the rates have been recently approved, include a copy of the 
rate agreement. If the agreement does not cover the projected 
performance period of the proposed effort, provide the rationale and any 
estimated rate calculations for the proposed performance period.
    (ii) Submit supporting documentation for rates which have not been 
approved or audited. Indicate whether computations are based upon 
historical or projected data.
    (iii) Provide actual pool expenses, base dollars, or hours (as 
applicable for the past five years). Include the actual indirect rates 
for the past five years including the indirect rates proposed, the 
actual indirect rates experienced and, if available, the final 
negotiated rate. Indicate the amount of unallowable costs included in 
the historical data.
    (iv) Offerors who propose indirect rates for new or substantially 
reorganized cost centers should consider offering to accept ceilings on 
the indirect rates at the proposed rates. Similarly, offerors whose 
subcontractors propose indirect rates for new or substantially 
reorganized cost centers should likewise consider offering to accept 
ceilings on the subcontractors' indirect rates at the proposed rates.

    Note to paragraph (b)(3)(iv). The Government reserves the right to 
adjust an offeror's or its subcontractor's estimated indirect costs for 
evaluation purposes based on the Agency's judgment of the most probable 
costs up to the amount of any stated ceiling.

    (v) If the employees are subject to the Service Contract Act or 
Davis Bacon Act, employees must receive the minimum level of benefits 
stated in the applicable Wage Determination.
    (4) Travel expense.

[[Page 79]]

    (i) If the solicitation specifies the amount of travel costs, this 
amount is exclusive of any applicable indirect costs and fee.
    (ii) If the solicitation does not specify the amount of travel 
costs, attach a schedule illustrating how travel was computed. Include a 
breakdown indicating number of trips, number of travelers, destinations 
from and to, purpose and cost, e.g., mileage, transportation costs, 
subsistence rates.
    (5) Equipment, facilities and special equipment, including tooling.
    (i) If direct charges for use of existing contractor equipment are 
proposed, provide a description of these items, including estimated 
usage hours, rates, and total costs.
    (ii) If equipment purchases are proposed, provide a description of 
these items, and a justification as to why the Government should furnish 
the equipment or allow its purchase with contract funds. (Unless 
specified elsewhere in this solicitation, FAR 45.302-1 requires 
contractors to furnish all facilities in performance of contracts with 
certain limited exceptions.)
    (iii) Identify Government-owned property in the possession of the 
offeror or proposed to be used in the performance of the contract, and 
the Government agency which has cognizance over the property.
    (iv) Submit proposed rates or use charges for equipment, along with 
documentation to support those rates.
    (v) If special purposes facilities or equipment are being proposed, 
provide a description of these items, details for the proposed costs 
including competitive prices, and justification as to why the Government 
should furnish the equipment or allow its purchase with contract funds.
    (vi) If fabrication by the prime contractor is contemplated, include 
details of material, labor, and overhead.
    (6) Other Direct Costs (ODC).
    (i) If the solicitation specifies the amount of other direct costs, 
this amount is exclusive of any applicable indirect cost and fee.
    (ii) If the amount is not specified in the solicitation, attach a 
schedule detailing how other direct costs were computed. Identify the 
major ODC items that under the accounting system would be a direct 
charge on any resulting contract.
    (iii) If any of the cost elements identified as part of the 
specified other direct costs are recovered as an indirect cost, in 
accordance with the offeror's accounting system, those costs should not 
be included as a direct cost. Complete explanation of this adjustment 
and the contractor's practice should be provided.
    (iv) Provide historical other direct costs dollars per level of 
effort hour on similar contracts or work assignments.
    (7) Team Subcontracts. When the cost of a subcontract is substantial 
(5 percent of the total estimated contract dollar value or $100,000, 
whichever is less), the offeror shall include the following 
subcontractor information:
    (i) Provide details of subcontract costs in the same format as the 
prime contractor's costs. This detailed information may be provided 
separately to the EPA if the subcontractor does not wish to provide this 
data to the prime contractor. Cost data provided separately by a 
contractor must be received by the time, date and at the location 
specified for the receipt of proposals. The subcontractor's package 
should be clearly marked with the RFP number, the name of the prime 
offeror, and a statement that the package is subcontractor data relevant 
to the proposal from the prime offeror. If submitted with the prime 
contractor's proposal, identify the subcontractors. State the amount of 
service estimated to be required and the quoted daily or hourly rate. 
Offerors are encouraged to provide letters of intent, signed by 
subcontractors, agreeing to a specified rate for life of the contract. 
Include a cost or price analysis of the subcontractor cost showing the 
reasons why the costs are considered reasonable;
    (ii) Describe how the prospective team subcontractors were chosen as 
part of the offeror's proposed team; and rationale for selection;
    (iii) Describe the necessity for the subcontractor's effort as 
either a supplement or complement to the offeror's in-house expertise;
    (iv) Identify the areas of the scope of work and the level of effort 
the subcontractors are anticipated to perform. Provide a reconciliation 
summary of the proposed hours and ODCs for the prime contractor and 
proposed subcontractor(s).
    (v) Describe the prime contractor's management structure and 
internal controls to ensure efficient and quality performance of team 
subcontractors.
    (8) Facilities Capital Cost of Money (FCCM). When an offeror elects 
to claim FCCM as an allowable cost, the offeror must submit Form CASB-
CNF and show calculation of the proposed amount. FCCM will be an 
allowable cost under the contemplated contract, if the criteria for 
allowability at FAR 31.205-10(a)(2) are met.

                           (End of provision)

    Alternate I (AUG 1999). If the Government's requirement is a fully 
dedicated staff person for a twelve month period(s) for each specified 
position and performance is on a Government facility, add the following 
paragraph (b)(2)(x) to the basic provision:

    (x) The level of effort for each position is to be proposed in work 
years. A work year is considered to consist of 2080 hours inclusive of 
direct and indirect time (40 hours per

[[Page 80]]

week x 52 weeks per year=2080 hours). The proposal must identify 
proposed work years and clearly identify how many hours in each work 
year are direct (i.e., productive working hours) and how many are 
indirect (i.e., paid absences). If the company policy includes a 
different base work week, the total available hours would be different. 
For example, if the company's policy calls for a 37.5 hour work week, 
offeror would deduct paid absences from 1950 hour (37.5 hours/week x 52 
weeks/year=1950 hours). Offeror should clearly identify the paid 
absences as to how many hours are for holiday and how many hours are for 
vacation and sick leave. The amount of indirect time (paid absences) 
identified in the proposal must be consistent with company policy and 
must allow for the ten Federal government holidays.

    Alternate II (AUG 1999). If the Government's requirement is a fully 
dedicated staff person for a twelve month period(s) for each specified 
position and performance is not on a Government facility; add the 
following paragraph (b)(2)(x) to the basic provision:

    (x) The level of effort for each position is to be proposed in work 
years. A work year is considered to consist of 2080 hours inclusive of 
direct and indirect time (40 hours per week x 52 weeks per year=2080 
hours). The proposal must identify proposed work years and clearly 
identify how many hours in each work year are direct (i.e., productive 
working hours) and how many are indirect (i.e., paid absences). If the 
company policy includes a different base work week, the total available 
hours would be different. For example, if the company's policy calls for 
a 37.5 hour work week, offeror would deduct paid absences from 1950 hour 
(37.5 hours/week x 52 weeks/year=1950 hours). Offeror should clearly 
identify the paid absences as to how many hours are for holiday and how 
many hours are for vacation and sick leave.

    Alternate III (AUG 1999). If the requirement is for the acquisition 
of supplies or equipment, substitute the following paragraphs (a)(iv)--
(viii) and add (a)(ix) and (b).

    (iv) Provide information as to how the proposed supplies or 
equipment meet the salient characteristics required by the contract line 
item;
    (v) Provide published brochures, catalogs, or other technical 
literature by contract line item;
    (vi) Meet any interface or compatibility requirements by contract 
line item;
    (vii) Describe warranty services and how delivered by contract line 
item;
    (viii) Assumptions, deviations and exceptions (as necessary); and
    (ix) Additional information.
    (b) Supplies--Provide unit pricing by contract line items for:
    (i) each line item;
    (ii) delivery;
    (iii) installation;
    (iv) sets of operating manuals;
    (v) training;
    (vi) warranty;
    (vii) maintenance; and
    (viii) volume discounts.

[64 FR 47415, Aug. 31, 1999]



1552.215-73  General financial and organizational information.

    As prescribed in 1515.408(a)(2), insert the following provision:

      General Financial and Organizational Information: (AUG 1999)

    Offerors or quoters are requested to provide information regarding 
the following items in sufficient detail to allow a full and complete 
business evaluation. If the question indicated is not applicable or the 
answer is none, it should be annotated. If the offeror has previously 
submitted the information, it should certify the validity of that data 
currently on file at EPA and to whom and where it was submitted or 
update all outdated information on file.
 (a) Contractor's Name:_________________________________________________
    (b) Address (If financial records are maintained at some other 
location, show the address of the place where the records are kept):

________________________________________________________________________
________________________________________________________________________
 (c) Telephone Number:__________________________________________________
 (d) Individual(s) to contact re. this proposal:________________________
________________________________________________________________________
    (e) Cognizant Government:

Audit Agency:___________________________________________________________
Address:________________________________________________________________
Auditor:________________________________________________________________
    (f)(1) Work Distribution for the Last Completed Fiscal Accounting 
Period:

Sales:
  Government cost-reimbursement type prime contracts           $--------
   and subcontracts.................................
  Government fixed-price prime contracts and                   $--------
   subcontracts.....................................
  Commercial Sales..................................           $--------
    Total Sales.....................................           $--------
  (2) Total Sales for first and second fiscal years
  immediately preceding last completed fiscal year.
 


Total Sales for First Preceding Fiscal Year.........           $--------

[[Page 81]]

 
Total Sales for Second Preceding Fiscal Year........           $--------
(g) Is company a separate rate entity or division?..
Yes--------
No--------
 
 

    If a division or subsidiary corporation, name parent company:
________________________________________________________________________

 (h) Date Company Organized:____________________________________________

    (i) Manpower:

Total Employees:________________________________________________________

Direct:_________________________________________________________________

Indirect:_______________________________________________________________

Standard Work Week (Hours):_____________________________________________

 (j) Commercial Products:_______________________________________________

    (k) Attach a current organizational chart of the company.
    (l) Description of Contractor's system of estimating and 
accumulating costs under Government contracts. (Check appropriate 
blocks.)

------------------------------------------------------------------------
                                                 Estimated/    Standard
                                                actual cost      cost
------------------------------------------------------------------------
Estimating System:
  Job Order...................................       ------       ------
  Process.....................................       ------       ------
 
Accumulating System:
  Job Order...................................       ------       ------
  Process.....................................       ------       ------
------------------------------------------------------------------------

    Has your cost estimating system been approved by any Government 
agency?
Yes -------- No --------

    If yes, give name, date or approval, and location of agency:

________________________________________________________________________
________________________________________________________________________

    Has your cost accumulation system been approved by any Government 
agency?
Yes -------- No --------
    If yes, give name, date of approval, and address of agency:
________________________________________________________________________
________________________________________________________________________

    (m) What is your fiscal year period? (Give month-to-month dates):

________________________________________________________________________
________________________________________________________________________
    What were the indirect cost rates for your last completed fiscal 
year?

------------------------------------------------------------------------
                                                   Indirect    Basis of
                   Fiscal year                     cost rate  allocation
------------------------------------------------------------------------
Fringe Benefits.................................      ------      ------
Overhead........................................      ------      ------
G&A Expense.....................................      ------      ------
Other...........................................      ------      ------
------------------------------------------------------------------------

    (n) Have the proposed indirect cost rate(s) been evaluated and 
accepted by any Government agency?
Yes -------- No --------
    If yes, give name, date of approval, and location of the Government 
agency:
________________________________________________________________________

    Date of last preaward audit review by a Government agency:
________________________________________________________________________

    If the answer is no, data supporting the proposed rates must 
accompany the cost or price proposal. A breakdown of the items 
comprising overhead and G&A must be furnished.
    (o) Cost estimating is performed by:

Accounting Department___________________________________________________
Contracting Department__________________________________________________
Other (describe)________________________________________________________
    (p) Has system of control of Government property been approved by a 
Government agency?
Yes -------- No --------
    If yes, give name, date of approval, and location of the Government 
agency:

________________________________________________________________________
________________________________________________________________________

    (q) Purchasing System: FAR 44.302 requires EPA, where it is the 
cognizant Government agency, to conduct a Contractor Purchasing System 
Review for each contractor whose sales to the Government, using other 
than sealed bid procedures, are expected to exceed $25 million (annual 
billings) during the next twelve months. The $25 million sales threshold 
is comprised of prime contracts, subcontractors under Government prime 
contracts, and modifications (except when the negotiated price is based 
on established catalog or market prices or is set by law or regulation).
    Has your purchasing system been approved by a Government agency?
Yes -------- No --------

    If yes, name and location of the Government agency:
________________________________________________________________________
Period of Approval:_____________________________________________________

    If no, do you estimate that your negotiated sales to the Government 
during the next twelve months will meet the $25 million threshold? Yes 
-------- No --------
    If you responded yes to the $25 million threshold question, is EPA 
the cognizant agency for your organization based on the preponderance of 
Government contract dollars?
Yes -------- No --------
    If EPA is not your cognizant Government agency, provide the name and 
location of the cognizant agency ------------
________________________________________________________________________
    Are your purchasing policies and procedures written?
Yes -------- No --------

[[Page 82]]

    (r) Does your firm have an established written incentive 
compensation or bonus plan?
Yes -------- No --------
    (s) Additionally, offerors shall submit current financial 
statements, including a Balance Sheet, Statement of Income (Loss), and 
Cash Flow for the last two completed fiscal years. Specify resources 
available to perform the contract without assistance from any outside 
source. If sufficient resources are not available, indicate in proposal 
the amount required and the anticipated source (i.e., bank loans, letter 
or lines of credit, etc.).

                           (End of provision)

[64 FR 47417, Aug. 31, 1999]



1552.215-74  Advanced understanding--uncompensated time.

    As prescribed in 1515.408(b), insert the following provision or one 
substantially the same as the following provision:

          Advanced Understanding--Uncompensated Time (AUG 1999)

    (a) The estimated cost of this contract is based upon the 
Contractor's proposal which specified that exempt personnel identified 
to work at the Contractor's facilities will provide uncompensated labor 
hours to the contract totaling -------- percent of compensated labor. 
(Note: the commitment for uncompensated time, and the formula elements 
in paragraph (b) below, apply only to exempt personnel working at the 
Contractor's facilities and does not include non-exempt personnel or 
exempt personnel working at other facilities.) Uncompensated labor hours 
are defined as hours of exempt personnel in excess of regular hours for 
a -------- pay period which are actually worked and recorded in 
accordance with the company policy, entitled, ----------------.
    (b) Recognizing that the probable cost to the Government for the 
labor provided under this contract is calculated assuming a proposed 
level of uncompensated labor hours, it is hereby agreed that in the 
event the proposed level of uncompensated labor hours are not provided, 
an adjustment, calculated in accordance with the following formula will 
be made to the contract amount.
    Formula:
    Adjustment equals estimated value of uncompensated time hours not 
provided.
    Target uncompensated time percent minus ------ percent.
    Shortage of uncompensated time percent minus actual cost percent.
    Estimated value of uncompensated time hours not provided equals 
shortage of uncompensated time percent times total exempt applicable 
direct labor costs (including applicable indirect costs).
    (c) Within three weeks after the end of the contract, the Contractor 
shall submit a statement concerning the amount of uncompensated time 
hours delivered during the contract. In the event there is a shortage of 
uncompensated time hours provided, a calculation, utilizing the above 
formula will be made and this calculation will be the basis for an 
adjustment in the contract amount.
    (d) In the event adjustments are made to the contract, the adjusted 
amounts shall not be allowable as a direct or indirect cost to this or 
any other Government contract.

                             (End of clause)

[64 FR 47418, Aug. 31, 1999]



1552.215-75  Past performance information.

    As prescribed in 1515.209(c), insert the following clause:

                 Past Performance Information (OCT 2000)

    (a) Offerors shall submit the information requested below as part of 
their proposal for both the offeror and any proposed subcontractors for 
subcontracts expected to exceed $ * . The information may be submitted 
prior to other parts of the proposal in order to assist the Government 
in reducing the evaluation period.
    (b) Offerors shall submit a list of all or at least * contracts and 
subcontracts completed in the last * years, and all contracts and 
subcontracts currently in process, which are similar in nature to this 
requirement.
    (1) The contracts and subcontracts listed may include those entered 
into with Federal, State and local governments, and commercial 
businesses, which are of similar scope, magnitude, relevance, and 
complexity to the requirement which is described in the RFP. Include the 
following information for each contract and subcontract listed:
    (a) Name of contracting activity.
    (b) Contract number.
    (c) Contract title.
    (d) Contract type.
    (e) Brief description of contract or subcontract and relevance to 
this requirement.
    (f) Total contract value.
    (g) Period of performance.
    (h) Contracting officer, telephone number, and E-mail address (if 
available).
    (i) Program manager/project officer, telephone number, and E-mail 
address (if available).
    (j) Administrative Contracting officer, if different from (h) above, 
telephone number, and E-mail address (if available).
    (k) List of subcontractors (if applicable).

[[Page 83]]

    (l) Compliance with subcontracting plan goals for small 
disadvantaged business concerns, monetary targets for small 
disadvantaged business participation, and the notifications submitted 
under FAR 19.1202-4 (b), if applicable.
    (c) Offerors should not provide general information on their 
performance on the identified contracts and subcontracts. General 
performance information will be obtained from the references.
    (1) Offerors may provide information on problems encountered and 
corrective actions taken on the identified contracts and subcontracts.
    (2) References that may be contacted by the Government include the 
contracting officer, program manager/project officer, or the 
administrative contracting officer identified above.
    (3) If no response is received from a reference, the Government will 
make an attempt to contact another reference identified by the offeror, 
to contact a reference not identified by the offeror, or to complete the 
evaluation with those references who responded. The Government shall 
consider the information provided by the references, and may also 
consider information obtained from other sources, when evaluating an 
offeror's past performance.
    (4) Attempts to obtain responses from references will generally not 
go beyond two telephonic messages and/or written requests from the 
Government, unless otherwise stated in the solicitation. The Government 
is not obligated to contact all of the references identified by the 
offeror.
    (d) If negative feedback is received from an offeror's reference, 
the Government will compare the negative response to the responses from 
the offeror's other references to note differences. A score will be 
assigned appropriately to the offeror based on the information. The 
offeror will be given the opportunity to address adverse past 
performance information obtained from references on which the offeror 
has not had a previous opportunity to comment, if that information makes 
a difference in the Government's decision to include the offeror in or 
exclude the offeror from the competitive range. Any past performance 
deficiency or significant weakness will be discussed with offerors in 
the competitive range during discussions.
    (e) Offerors must send Client Authorization Letters (see Section J 
of the solicitation) to each reference listed in their proposal to 
assist in the timely processing of the past performance evaluation. 
Offerors are encouraged to consolidate requests whenever possible (i.e., 
if the same reference has several contracts, send that reference a 
single notice citing all applicable contracts). Offerors may send Client 
Authorization Letters electronically to references with copies forwarded 
to the contracting officer.
    (1) If an offeror has no relevant past performance history, an 
offeror must affirmatively state that it possesses no relevant past 
performance history.
    (2) Client Authorization Letters should be mailed or E-mailed to 
individual references no later than five (5) working days after proposal 
submission. The offeror should forward a copy of the Client 
Authorization Letter to the contracting officer simultaneously with 
mailing to references.
    (f) Each offeror may describe any quality awards or certifications 
that indicate the offeror possesses a high-quality process for 
developing and producing the product or service required. Such awards or 
certifications include, for example, the Malcolm Baldrige Quality Award, 
other Government quality awards, and private sector awards or 
certifications.
    (1) Identify the segment of the company (one division or the entire 
company) which received the award or certification.
    (2) Describe when the award or certification was bestowed. If the 
award or certification is over three years old, present evidence that 
the qualifications still apply.
    (g) Past performance information will be used for both 
responsibility determinations and as an evaluation factor for award. The 
Past Performance Questionnaire identified in section J will be used to 
collect information on an offeror's performance under existing and prior 
contracts/subcontracts for products or services similar in scope, 
magnitude, relevance, and complexity to this requirement in order to 
evaluate offerors consistent with the past performance evaluation factor 
set forth in section M. References other than those identified by the 
offeror may be contacted by the Government and used in the evaluation of 
the offeror's past performance.
    (h) Any information collected concerning an offeror's past 
performance will be maintained in the official contract file.
    (i) In accordance with FAR 15.305 (a) (2) (iv), offerors with no 
relevant past performance history, or for whom information on past 
performance is not available, will be evaluated neither favorably nor 
unfavorably on past performance.

* Indicates that the contracting officer inserts applicable dollar 
figure and number.

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



1552.215-76  General financial and organizational information.

    As prescribed in 1515.407(a)(3), insert the following provisions:

[[Page 84]]

       General Financial and Organizational Information (APR 1984)

    Offerors or quoters are requested to provide information regarding 
the following items in sufficient detail to allow a full and complete 
business evaluation. If the question indicated is not applicable or the 
answer is none, it should be annotated. If the offeror has previously 
submitted the information, it should certify the validity of that data 
currently on file at EPA or update all outdated information on file.
    (a) Contractor's Name: --------.
    (b) Address (If financial records are maintained at some other 
location, show the address of the place where the records are kept):
________________________________________________________________________
    (c) Telephone Number: --------.
    (d) Individual(s) to contact re this proposal:
________________________________________________________________________
    (e) Cognizant Government:
 Audit Agency:__________________________________________________________
 Address:_______________________________________________________________
 Auditor:_______________________________________________________________
    (f)(1) Work Distribution for the Last Completed Fiscal Accounting 
Period:

Sales:
  Government cost-reimbursement type prime contracts and       $........
   subcontracts............................................
  Government fixed-price prime contracts and subcontracts..    $........
  Commercial sales.........................................    $........
                                                            ------------
      Total sales..........................................    $........
 

    (2) Total sales for first and second fiscal years immediately 
preceding last completed fiscal year.

Total sales for first preceding fiscal year................    $........
Total sales for second preceding fiscal year...............    $........
 

    (g) Is company a separate entity or division?
________________________________________________________________________
    If a division or subsidiary corporation, name parent company:
________________________________________________________________________
    (h) Date Company Organized: --------.
    (i) Manpower:
 Total Employer:________________________________________________________
 Direct:________________________________________________________________
 Indirect:______________________________________________________________
 Standard Work Week (Hours):____________________________________________
    (j) Commercial Products: --------.
    (k) Attach a current organizational chart of the company.
    (l) Description of Contractor's system of estimating and 
accumulating costs under Government contracts. (Check appropriate 
blocks.)

------------------------------------------------------------------------
                                                 Estimated/     Standard
                                                actual cost       cost
------------------------------------------------------------------------
Estimating System:
 Job Order..................................  ...............  .........
 Process....................................  ...............  .........
Accumulating System:
 Job Order..................................  ...............  .........
 Process....................................  ...............  .........
------------------------------------------------------------------------

    Has your cost estimating system been approved by any Government 
agency?

Yes ---- No ----
    If yes, give name and address of agency:
________________________________________________________________________
    Has your cost accumulation system been approved by any Government 
agency?

Yes ---- No ----
    If yes, give name and address of agency:
________________________________________________________________________
    (m) What is your fiscal year period? (Give month-to-month dates):
________________________________________________________________________
What were the indirect cost rates for your last completed fiscal year?

------------------------------------------------------------------------
                                               Indirect cost   Basis of
                 Fiscal year                       rate       allocation
------------------------------------------------------------------------
Fringe Benefits.............................  ..............  ..........
Overhead....................................  ..............  ..........
G&A Expense.................................  ..............  ..........
Other.......................................  ..............  ..........
------------------------------------------------------------------------

    (n) Have the proposed indirect cost rate(s) been evaluated and 
accepted by any Government agency?

Yes ---- No ----
    If yes, name and location of the Government agency:
________________________________________________________________________
    Date of last preaward audit review by a Government agency: ------.
    (If the answer is no, data supporting the proposed rates must 
accompany the cost or price proposal. A breakdown of the items 
comprising overhead and G&A must be furnished.)
    (o) Cost estimating is performed by:
 Accounting Department__________________________________________________
 Contracting Department_________________________________________________
 Other__________________________________________________________________

                                (describe)

    (p) Has system of control of Government property been approved by a 
Government agency?

Yes ---- No ----
    If yes, name and location of the Government agency:
________________________________________________________________________
    (q) Purchasing System: FAR 44.302 requires EPA, where it is the 
cognizant Government agency, to conduct a Contractor Purchasing System 
Review for each contractor whose sales to the Government, using other 
than sealed bid procedures, are expected to exceed $10 million (annual 
billings) during the next

[[Page 85]]

twelve months. The $10 million sales threshold is comprised of prime 
contracts, subcontracts under Government prime contracts, and 
modifications (except when the negotiated price is based on established 
catalog or market prices or is set by law or regulation). Has your 
purchasing system been approved by a Government agency?

Yes ---- No ----
If yes, name and location of the Government agency:
________________________________________________________________________
Period of Approval:_____________________________________________________
If no, do you estimate that your negotiated sales to the Government 
during the next twelve months will meet the $10 million threshold?
Yes ---- No ----
If you respond yes to the $10 million threshold question, is EPA the 
cognizant agency for your organization based on the preponderance of 
Government contract dollars?
Yes ---- No ----
If EPA is not your cognizant Government agency, provide the name and 
location of the
cognizant agency________________________________________________________
________________________________________________________________________
Are your purchasing policies and procedures written?
Yes ---- No ----
    (r) Does your firm have an established written incentive competition 
or bonus plan?

Yes ---- No ----

                           (End of provision)

(Approved by the Office of Management and Budget under control number 
2030-0006)

[49 FR 8867, Mar. 8, 1984, as amended at 54 FR 36980, Sept. 6, 1989; 55 
FR 13535, Apr. 11, 1990]



1552.216-70  Award Fee.

    As prescribed in 1516.405(a), insert the following clause:

                          Award Fee (MAY 2000)

    (a) The Government shall pay the contractor a base fee, if any, and 
such additional fee as may be earned, as provided in the award fee plan 
incorporated into the Schedule.
    (b) Award fee determinations made by the Government under this 
contract are unilaterally determined by the Fee Determination Official 
(FDO). The amount of the award fee to be paid is determined by the 
Government's judgmental evaluation of the contractor's performance in 
terms of the criteria stated in the contract. This determination and the 
methodology for determining the award fee are unilateral decisions made 
solely at the discretion of the Government.
    (c) The Government may unilaterally change the award fee plan at any 
time, via contract modification, at least thirty (30) calendar days 
prior to the beginning of the applicable evaluation period. Changes 
issued in a unilateral modification are not subject to equitable 
adjustments, consideration, or any other renegotiation of the contract.

                             (End of clause)

[60 FR 43404, Aug. 21, 1995, as amended at 65 FR 31500, May 18, 2000]



1552.216-71  Date of incurrence of cost.

    At prescribed in 1516.307, insert the following contract clause in 
cost-reimbursement contracts when an anticipatory cost letter has been 
issued on the project. The beginning dates and the not-to-exceed amount 
to be inserted in the clause should be those in the anticipatory cost 
letter.

                  Date of Incurrence of Cost (APR 1984)

    The Contractor is entitled to reimbursement for allowable, allocable 
costs incurred during the period of ------------ to the award date of 
this contract in an amount not to exceed
$_______________________________________________________________________
All terms and conditions of this contract are in effect from

________________________________________________________________________

                             (End of clause)



1552.216-72  Ordering--by designated ordering officers.

    As prescribed in 1516.505(a), insert the following in indefinite 
delivery/indefinite quantity contracts.

          Ordering--By Designated Ordering Officers (APR 1984)

    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing delivery orders on Optional 
Form 347, or any agency prescribed form, from ------ through ------. In 
addition to the Contracting Officer, the following individuals are 
authorized ordering officers.
________________________________________________________________________
________________________________________________________________________
    (b) A Standard Form 30 will be the method of amending delivery 
orders.
    (c) The Contractor shall acknowledge receipt of each order and shall 
prepare and forward to the Ordering Officer within ten (10) calendar 
days the proposed staffing plan for accomplishing the assigned task 
within the period specified.
    (d) If the Contractor considers the estimated labor hours or 
specified work completion date to be unreasonable, he/she shall

[[Page 86]]

promptly notify the Ordering Officer and Contracting Officer in writing 
within 10 calendar days, stating why the estimated labor hours or 
specified completion date is considered unreasonable.
    (e) Each delivery order will have a ceiling price, which the 
Contractor may not exceed. When the Contractor has reason to believe 
that the labor payment and support costs for the order, which will 
accrue in the next thirty (30) days, will bring total cost to over 85 
percent of the ceiling price specified in the order, the Contractor 
shall notify the Ordering Officer.
    (f) Paragraphs (c), (d), and (e) of this clause apply only when 
services are being ordered.

                             (End of clause)



1552.216-73  Fixed rates for services--indefinite delivery/indefinite quantity contract.

    As prescribed in 1516.505(b), insert the following clause to specify 
fixed rates for services in indefinite delivery/indefinite quantity 
contracts. When the contract contains options, the clause should be 
modified to reflect the information and data for the base period and any 
option periods.

   Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
                           Contract (APR 1984)

    The following fixed rates shall apply for payment purposes for the 
duration of the contact.

------------------------------------------------------------------------
                                             Estimated
                                    Skill     direct     Fixed
     Personnel classification       level      labor     hourly   Total
                                               hours      rate
------------------------------------------------------------------------
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
                                   .......  ..........  .......  .......
------------------------------------------------------------------------

    The rate, or rates, set forth above cover all expenses, including 
report preparation, salaries, overhead, general and administrative 
expenses, and profit.
    The Contractor shall voucher for only the time of the personnel 
whose services are applied directly to the work called for in individual 
Delivery Orders and accepted by the EPA Project Officer. The Government 
shall pay the Contractor for the life of a delivery order at rates in 
effect when the delivery order was issued, even if performance under the 
delivery order crosses into another period. The Contractor shall 
maintain time and labor distribution records for all employees who work 
under the contract. These records must document time worked and work 
performed by each individual on all Delivery Orders.

                             (End of clause)



1552.216-74  Payment of fee.

    As prescribed in 1516.307(b), insert the following clause:

                        Payment of Fee (MAY 1991)

    (a) The term fee in this clause refers to either the fixed fee under 
a cost-plus-fixed-fee type contract, or the base fee under a cost-plus-
award-fee type contract.
    (b) The Government will make provisional fee payments on the basis 
of percentage of work completed. Percentage of work completed is the 
ratio of direct labor hours performed to the direct labor hours set 
forth in clause 1552.211-73, Level of Effort--Cost-Reimbursement Term 
Contract.

                             (End of clause)

[56 FR 43711, Sept. 4, 1991, as amended at 63 FR 46899, Sept. 3, 1998]



1552.216-75  Base fee and award fee proposal.

    As prescribed in 1516.405(b), insert the following clause:

               Base Fee and Award Fee Proposal (FEB 1999)

    For the purpose of this solicitation, offerors shall propose a 
combination of base fee and award fee. Base fee shall not exceed 3% of 
the estimated cost, excluding fee, and the award fee shall not be less 
than ----% of the total estimated cost, excluding fee. The combined 
percentages of base and award fee shall not exceed ----% of the total 
estimated cost, excluding fee.

                             (End of clause)

[64 FR 3876, Jan. 26, 1999]



1552.216-76  Estimated cost and cost-sharing.

    As prescribed in 1516.307(c), insert the following clause:

               Estimated Cost and Cost-Sharing (APR 1996)

    (a) The total estimated cost of performing the work under this 
contract is $--------. The Contractor's share of this cost shall not 
exceed $--------. The Government's share of this cost shall not exceed 
$--------.
    (b) For performance of the work under the contract, the Contractor 
shall be reimbursed for not more than ------ percent of the cost of 
performance determined to be allowable under the Allowable Cost and 
Payment clause. The remaining balance of allowable cost shall constitute 
the Contractor's share.

[[Page 87]]

    (c) Fee shall not be paid to the prime contractor under this cost-
sharing contract.
    (d) The Contractor shall maintain records of all costs incurred and 
claimed for reimbursement as well as any other costs claimed as part of 
its cost share. Those records shall be subject to audit by the 
Government.
    (e) Costs contributed by the Contractor shall not be charged to the 
Government under any other contract, grant or agreement (including 
allocation to other contracts as part of an independent research and 
development program) nor be included as contributions under any other 
Federal contract.

                             (End of clause)

[61 FR 14505, Apr. 2, 1996]



1552.217-70  Evaluation of contract options.

    As prescribed in 1517.208(a), insert the following solicitation 
provision in Requests for Proposals when the solicitation contains 
options.

                Evaluation of Contract Options (APR 1984)

    For award purposes, in addition to an offeror's response to the 
basic requirement, the Government will evaluate its response to all 
options, both technical and cost. Evaluation of options will not 
obligate the Government to exercise the options. For this solicitation 
the options are as specified in section H.

                           (End of provision)



1552.217-71  Option to extend the term of the contract--cost-type contract.

    As prescribed in 1517.208(b), insert this contract clause in cost-
reimbursement type term form contracts when applicable. If only one 
option period is used, enter ``NA'' in the proper places of the clause. 
If more than two option periods apply, the clause may be modified 
accordingly.

Option to Extend the Term of the Contract--Cost-Type Contract (APR 1984)

    The Government has the option to extend the term of this contract 
for ------ additional period(s). If more than 60 days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last 60 days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last 60-day period. This preliminary 
notification does not commit the Government to exercising the option. 
The Government's estimated level of effort is ------ direct labor hours 
for the first option period and ------ for the second. Use of an option 
will result in the following contract modifications:
    (a) The ``Period of Performance'' clause will be amended to cover a 
base period from ---- to ------ and option periods from ---- to ---- and 
---- to ----.
    (b) Paragraph (a) of the ``Level of Effort'' clause will be amended 
to reflect a new and separate level of effort of ---- for the first 
option period and a new and separate level of effort of ---- for the 
second option period.
    (c) The ``Estimated Cost and Fixed Fee'' clause will be amended to 
reflect increased estimated costs and fixed fee for each option period 
as follows:

------------------------------------------------------------------------
                                                     Option 1   Option 2
------------------------------------------------------------------------
Estimated cost....................................  .........  .........
Fixed fee.........................................  .........  .........
                                                   ------------
    Total.........................................  .........  .........
------------------------------------------------------------------------

    (d) If the contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODC), those amounts will be increased as follows:

------------------------------------------------------------------------
              Other direct cost item                 Option 1   Option 2
------------------------------------------------------------------------
                                                    .........  .........
                                                    .........  .........
                                                   ------------
                                                    .........  .........
------------------------------------------------------------------------

                             (End of clause)



1552.217-72  Option to extend the term of the contract--cost-plus-award-fee contract.

    As prescribed in 1517.208(c), insert this contract clause in cost-
plus-award-fee term contracts when applicable. If only one option period 
is used, enter ``NA'' in the proper places of the clause. If more than 
two option periods apply, modify the clause accordingly.

Option To Extend the Term of the Contract--Cost-Plus-Award-Fee Contract 
                               (APR 1984)

    (a) The Government has the option to extend the term of this 
contract for ------ additional periods. If more than 60 days remain in 
the contract period of performance, the Government, without prior 
written notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last 60 days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last 60-day period. This preliminary

[[Page 88]]

notification does not commit the Government to exercising the option. 
The Government's estimated level of effort is ------ direct labor hours 
for the first option period and ------ for the second. Use of an option 
will result in the following contract modifications:
    (b) The ``Period of Performance'' clause will be amended to cover a 
base period from ---- to ---- and option periods from ---- to ---- and 
---- to ----.
    (c) Paragraph (a) of the ``Level of Effort'' clause will be amended 
to reflect a new and separate level of effort of ---- for the first 
option period and a new and separate level of effort of ---- for the 
second option period.
    (d) The ``Estimated Cost Base Fee and Award Fee'' clause will be 
amended to reflect increased estimated costs and base fee and award fee 
pool for each option period as follows:

------------------------------------------------------------------------
                                                     Option 1   Option 2
------------------------------------------------------------------------
Estimated cost....................................  .........  .........
Base fee..........................................  .........  .........
Award fee pool....................................  .........  .........
                                                   ------------
    Total.........................................  .........  .........
------------------------------------------------------------------------

    (e) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODC), those amounts will be increased as follows:

------------------------------------------------------------------------
              Other direct cost item                 Option 1   Option 2
------------------------------------------------------------------------
                                                    .........  .........
                                                    .........  .........
                                                    .........  .........
                                                   ------------
                                                    .........  .........
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



1552.217-73  Option for increased quantity--cost-type contract.

    As prescribed in 1517.208(d), insert this contract clause in cost-
reimbursement type term form contracts when applicable. If only one 
option period is used, enter ``NA'' in the proper places of the clause. 
If more than two option periods apply, modify the clause accordingly.

      Option for Increased Quantity--Cost-Type Contract (JUN 1997)

    (a) By issuing a contract modification, the Government may increase 
the estimated level of effort by ------ direct labor hours during the 
base period, ------ during the first option period, and ------ during 
the second option period. The Government may issue a maximum of ------ 
orders to increase the level of effort in blocks of ------ hours during 
any given period. The estimated cost and fixed fee of each block of 
hours is as follows:

------------------------------------------------------------------------
                                                 Base    Option   Option
                                                period     1        2
------------------------------------------------------------------------
Estimated cost...............................  .......  .......  .......
Fixed fee....................................  .......  .......  .......
                                              ----------
    Total....................................  .......  .......  .......
------------------------------------------------------------------------

    (b) When these options are exercised, paragraph (a) of the ``Level 
of Effort'' clause and the ``Estimated Cost and Fixed Fee'' clause will 
be modified accordingly.
    (c) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODCs), those amounts will be increased as 
follows:

------------------------------------------------------------------------
     Other direct  cost item           Option 1            Option 2
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 62 FR 37149, July 11, 1997; 62 
FR 60667, Nov. 12, 1997]



1552.217-74  Option for increased quantity--cost-plus-award-fee contract.

    As prescribed in 1517.208(e), insert this contract clause in cost-
plus-award-fee term contracts when applicable. If only one option period 
is used, enter ``NA'' in the proper places of the clause. If more than 
two option periods apply, the clause may be modified accordingly.

 Option for Increased Quantity--Cost-Plus-Award-Fee Contract (JUN 1997)

    (a) By issuing a contract modification, the Government may increase 
the estimated level of effort by ------ direct labor hours during the 
base period, ------ during the first option period, and ------ during 
the second option period. The Government may issue a maximum of ------ 
orders to increase the level of effort in blocks of ------ hours during 
any given period. The estimated cost, base fee, and award fee pool of 
each block of hours is as follows:

------------------------------------------------------------------------
                                                 Base    Option   Option
                                                period     1        2
------------------------------------------------------------------------
Estimated cost...............................  .......  .......  .......
Base fee.....................................  .......  .......  .......
Award fee pool...............................  .......  .......  .......
                                              ----------
    Total....................................  .......  .......  .......
------------------------------------------------------------------------


[[Page 89]]

    (b) When these options are exercised, paragraph (a) of the ``Level 
of Effort'' clause and the ``Estimated Cost, Base Fee, and Award Fee'' 
clause will be modified accordingly.
    (c) If this contract contains ``not to exceed amounts'' for elements 
of other direct costs (ODCs), those amounts will be increased as 
follows:

------------------------------------------------------------------------
     Other direct  cost item           Option 1            Option 2
------------------------------------------------------------------------
 
 
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 62 FR 37149, July 11, 1997; 62 
FR 60667, Nov. 12, 1997]



1552.217-75  Option to extend the effective period of the contract--time and materials or labor hour contract.

    As prescribed in 1517.208(f), insert this clause in time and 
materials or labor hour type contracts when applicable. This clause will 
be modified to reflect the actual number of option periods for the 
acquisition. If only one option period is used, modify (c) accordingly.

    Option to Extend the Effective Period of the Contract--Time and 
               Materials or Labor Hour Contract (APR 1984)

    (a) The Government has the option to extend the effective period of 
this contract for ------ additional period(s). If more than sixty (60) 
days remain in the contract effective period, the Government, without 
prior written notification, may exercise this option by issuing a 
contract modification. To unilaterally exercise this option within the 
last 60 days of the effective period, the Government must issue written 
notification of its intent to exercise the option prior to that last 60-
day period. This preliminary notification does not commit the Government 
to exercising the option.
    (b) If the option(s) are exercised, the ``Ceiling Price'' clause 
will be modified to reflect a new and separate ceiling price of $---- 
for the first option period and a new and seperate ceiling price of $--
-- for the second option period.
    (c) The ``Effective Period of the Contract'' clause will be modified 
to cover a base period from ------ to ------ and option periods from --
---- to ------ and ------ to ------.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984; 49 FR 24734, June 15, 1984]



1552.217-76  Option to extend the effective period of the contract--indefinite delivery/indefinite quantity contract.

    As prescribed in 1517.208(g), the following is used in indefinite 
delivery/indefinite quantity type contracts with options to extend the 
effective period of the contract. The clause may be adjusted depending 
upon the number of options. If only one option period is used, modify 
(b) and (c) accordingly.

   Option to Extend the Effective Period of the Contract--Indefinite 
                  Delivery/Indefinite Quantity Contract

    (a) The Government has the option to extend the effective period of 
this contract for ------ additional period(s). If more than sixty (60) 
days remain in the contract effective period, the Government, without 
prior written notification, may exercise this option by issuing a 
contract modification. To unilaterally exercise this option within the 
last 60 days of the effective period, the Government must issue written 
notification of its intent to exercise the option prior to that last 60-
day period. This preliminary notification does not commit the Government 
to exercising the option.
    (b) If the options are exercised, the ``Minimum and Maximum Contract 
Amount'' clause will be modified to reflect new and separate minimums of 
------ for the first option period and ------ for the second option 
period, and new and separate maximums of ------ for the first option 
period and ------ for the second option period.
    (c) The ``Effective Period of the Contract'' clause will be modified 
to cover a base period from ------ to ------ and option periods from --
---- to ------ and ------ to ------.

                             (End of clause)



1552.217-77  Option to extend the term of the contract fixed price.

    As prescribed in 1517.208(g), insert the following clause:

    Option to Extend the Term of the Contract Fixed Price (OCT 2000)

    The Government has the option to extend the term of this contract 
for------additional period(s). If more than------days remain in the 
contract period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last------days of the 
period of performance, the Government must provide to the Contractor 
written notification prior

[[Page 90]]

to that last -------day period. This preliminary notification does not 
commit the Government to exercising the option. Use of an option will 
result in the following contract modifications:
    (a) The ``Period of Performance'' clause will be amended as follows 
to cover the Base and Option Periods:

------------------------------------------------------------------------
         Period                 Start date               End date
------------------------------------------------------------------------
                         .......................  ......................
------------------------
                         .......................  ......................
------------------------
                         .......................  ......................
------------------------
                         .......................  ......................
------------------------------------------------------------------------

    (b) During the option period(s) the Contractor shall provide the 
services described below:

------------------------------------------------------------------------
               Period                             Attachment
------------------------------------------------------------------------
                                     ...................................
------------------------------------
                                     ...................................
------------------------------------
                                     ...................................
------------------------------------
                                     ...................................
------------------------------------------------------------------------

    (c) The ``Consideration and Payment'' clause will be amended to 
reflect increased fixed prices for each option period as follows:

------------------------------------------------------------------------
            Fixed price                         Option period
------------------------------------------------------------------------
                                     ...................................
------------------------------------
                                     ...................................
------------------------------------
                                     ...................................
------------------------------------
                                     ...................................
------------------------------------------------------------------------

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



1552.219-70  Mentor-Protege Program.

    As prescribed in 1519.203(a), insert the following clause:

                     Mentor-Protege Program OCT 2000

    (a) The Contractor has been approved to participate in the EPA 
Mentor-Protege program. The purpose of the Program is to increase the 
participation of small disadvantaged businesses (SDBs) as 
subcontractors, suppliers, and ultimately as prime contractors; to 
establish a mutually beneficial relationship with SDB's and EPA's large 
business prime contractors (although small businesses may participate as 
Mentors); to develop the technical and corporate administrative 
expertise of SDBs which will ultimately lead to greater success in 
competition for contract opportunities; to promote the economic 
stability of SDBs; and to aid in the achievement of goals for the use of 
SDBs in subcontracting activities under EPA contracts.
    (b) The Contractor shall submit an executed Mentor-Protege agreement 
to the contracting officer, with a copy to the Office of Small and 
Disadvantaged Business Utilization or the Small Business Specialist, 
within thirty (30) calendar days after the effective date of the 
contract. The contracting officer will notify the Contractor within 
thirty (30) calendar days from its submission if the agreement is not 
accepted.
    (c) The Contractor as a Mentor under the Program agrees to fulfill 
the terms of its agreement(s) with the Protege firm(s).
    (d) If the Contractor or Protege firm is suspended or debarred while 
performing under an approved Mentor-Protege agreement, the Contractor 
shall promptly give notice of the suspension or debarment to the Office 
of Small and Disadvantaged Business Utilization and the contracting 
officer.
    (e) Costs incurred by the Contractor in fulfilling their 
agreement(s) with the Protege firm(s) are not reimbursable on a direct 
basis under this contract.
    (f) In an attachment to Standard Form 294, Subcontracts Report for 
Individual Contracts, the Contractor shall report on the progress made 
under their Mentor-Protege agreement(s), providing:
    (1) The number of agreements in effect; and
    (2) The progress in achieving the developmental assistance 
objectives under each agreement, including whether the objectives of the 
agreement have been met, problem areas encountered, and any other 
appropriate information.

                             (End of clause)

[66 FR 28674, May 24, 2001]



1552.219-71  Procedures for Participation in the EPA Mentor-Protege Program.

    As prescribed in 1519.203(b), insert the following provision:

  Procedures for Participation in the EPA Mentor-Protege Program (OCT 
                                  2000)

    (a) This provision sets forth the procedures for participation in 
the EPA Mentor-Protege Program (hereafter referred to as the Program). 
The purpose of the Program is to increase the participation of concerns 
owned and/or controlled by socially and economically disadvantaged 
individuals as subcontractors, suppliers, and ultimately as prime 
contractors; to establish a mutually

[[Page 91]]

beneficial relationship between these concerns and EPA's large business 
prime contractors (although small businesses may participate as 
Mentors); to develop the technical and corporate administrative 
expertise of these concerns, which will ultimately lead to greater 
success in competition for contract opportunities; to promote the 
economic stability of these concerns; and to aid in the achievement of 
goals for the use of these concerns in subcontracting activities under 
EPA contracts. If the successful offeror is accepted into the Program 
they shall serve as a Mentor to a Protege firm(s), providing 
developmental assistance in accordance with an agreement with the 
Protege firm(s).
    (b) To participate as a Mentor, the offeror must receive approval in 
accordance with paragraph (h) of this section.
    (c) A Protege must be a concern owned and/or controlled by socially 
and economically disadvantaged individuals within the meaning of section 
8(a)(5) and (6) of the Small Business Act (15 U.S.C. 673(a)(5) and (6)), 
including historically black colleges and universities. Further, in 
accordance with Public Law 102-389 (the 1993 Appropriation Act), for 
EPA's contracting purposes, economically and socially disadvantaged 
individuals shall be deemed to include women.
    (d) Where there may be a concern regarding the Protege firm's 
eligibility to participate in the program, the protege's eligibility 
will be determined by the contracting officer after the SBA has 
completed any formal determinations.
    (e) The offeror shall submit an application in accordance with 
paragraph (k) of this section as part of its proposal which shall 
include as a minimum the following information.
    (1) A statement and supporting documentation that the offeror is 
currently performing under at least one active Federal contract with an 
approved subcontracting plan and is eligible for the award of Federal 
contracts;
    (2) A summary of the offeror's historical and recent activities and 
accomplishments under any disadvantaged subcontracting programs. The 
offeror is encouraged to include any initiatives or outreach information 
believed pertinent to approval as a Mentor firm;
    (3) The total dollar amount (including the value of all option 
periods or quantities) of EPA contracts and subcontracts received by the 
offeror during its two preceding fiscal years. (Show prime contracts and 
subcontracts separately per year);
    (4) The total dollar amount and percentage of subcontract awards 
made to all concerns owned and/or controlled by disadvantaged 
individuals under EPA contracts during its two preceding fiscal years. 
If recently required to submit a SF 295, provide copies of the two 
preceding year's reports;
    (5) The number and total dollar amount of subcontract awards made to 
the identified Protege firm(s) during the two preceding fiscal years (if 
any).
    (f) In addition to the information required by paragraph (e) of this 
section, the offeror shall submit as a part of the application the 
following information for each proposed Mentor-Protege relationship:
    (1) Information on the offeror's ability to provide developmental 
assistance to the identified Protege firm and how the assistance will 
potentially increase contracting and subcontracting opportunities for 
the Protege firm.
    (2) A letter of intent indicating that both the Mentor firm and the 
Protege firm intend to enter into a contractual relationship under which 
the Protege will perform as a subcontractor under the contract resulting 
from this solicitation and that the firms will negotiate a Mentor-
Protege agreement. The letter of intent must be signed by both parties 
and contain the following information:
    (i) The name, address and phone number of both parties;
    (ii) The Protege firm's business classification, based upon the 
NAICS code(s) which represents the contemplated supplies or services to 
be provided by the Protege firm to the Mentor firm;
    (iii) A statement that the Protege firm meets the eligibility 
criteria;
    (iv) A preliminary assessment of the developmental needs of the 
Protege firm and the proposed developmental assistance the Mentor firm 
envisions providing the Protege. The offeror shall address those needs 
and how their assistance will enhance the Protege. The offeror shall 
develop a schedule to assess the needs of the Protege and establish 
criteria to evaluate the success in the Program;
    (v) A statement that if the offeror or Protege firm is suspended or 
debarred while performing under an approved Mentor-Protege agreement the 
offeror shall promptly give notice of the suspension or debarment to the 
EPA Office of Small Disadvantaged Business Utilization (OSDBU) and the 
contracting officer. The statement shall require the Protege firm to 
notify the Contractor if it is suspended or debarred.
    (g) The application will be evaluated on the extent to which the 
offeror's proposal addresses the items listed in paragraphs (e) and (f) 
of this section. To the maximum extent possible, the application should 
be limited to not more than 10 single pages, double spaced. The offeror 
may identify more than one Protege in its application.
    (h) If the offeror is determined to be in the competitive range, or 
is awarded a contract without discussions, the offeror will be advised 
by the contracting officer whether their application is approved or 
rejected. The

[[Page 92]]

contracting officer, if necessary, may request additional information in 
connection with the offeror's submission of its revised or best and 
final offer. If the successful offeror has submitted an approved 
application, they shall comply with the clause titled ``Mentor-Protege 
Program.''
    (i) Subcontracts of $1,000,000 or less awarded to firms approved as 
Proteges under the Program are exempt from the requirements for 
competition set forth in FAR 44.202-2(a)(5), and 52.244-5(b). However, 
price reasonableness must still be determined and the requirements in 
FAR 44.202-2(a)(8) for cost and price analysis continue to apply.
    (j) Costs incurred by the offeror in fulfilling their agreement(s) 
with a Protege firm(s) are not reimbursable as a direct cost under the 
contract. Unless EPA is the responsible audit agency under FAR 42.703-1, 
offerors are encouraged to enter into an advance agreement with their 
responsible audit agency on the treatment of such costs when determining 
indirect cost rates. Where EPA is the responsible audit agency, these 
costs will be considered in determining indirect cost rates.
    (k) Submission of Application and Questions Concerning the Program.
    The application for the Program for Headquarters and Regional 
procurements shall be submitted to the contracting officer, and to the 
EPA OSDBU at the following address: Socioeconomic Business Program 
Officer, Office of Small and Disadvantaged Business Utilization, U.S. 
Environmental Protection Agency, Ariel Rios Building (1230A), 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, Telephone: (202) 564-
4322, Fax: (202) 565-2473.
    The application for the Program for RTP procurements shall be 
submitted to the contracting officer, and to the Small Business 
Specialist at the following address: Small Business Program Officer, RTP 
Procurement Operations Division (E105-02), U.S. Environmental Protection 
Agency, Research Triangle Park, NC 27711, Telephone: (919) 541-2249, 
Fax: (919) 541-5539.
    The application for the Program for Cincinnati procurements shall be 
submitted to the contracting officer, and to the Small Business 
Specialist at the following address: Small and Disadvantaged Business 
Utilization Officer, Cincinnati Procurement Operations Division (CPOD-
Norwood), U.S. Environmental Protection Agency, 26 West Martin Luther 
King Drive, Cincinnati, OH 45268, Telephone: (513) 487-2024 Fax: (513) 
487-2004.

                           (End of provision)

[67 FR 11441, Mar. 14, 2002]



1552.219-72  Small Disadvantaged Business Participation Program.

    As prescribed in 1519.204(a), insert the following clause:

      Small Disadvantaged Business Participation Program (OCT 2000)

    (a) Section M of this solicitation contains a source selection 
factor or subfactor related to the participation of small disadvantaged 
business (SDB) concerns in the performance of the contract. The nature 
of the evaluation of an SDB offeror under this evaluation factor or 
subfactor is dependent upon whether the SDB concern qualifies for the 
price evaluation adjustment under the clause at FAR 52.219-23, Notice of 
Price Evaluation Adjustment for Small Disadvantaged Business Concerns, 
and whether the SDB concern specifically waives this price evaluation 
adjustment.
    (b) In order to be evaluated under the source selection factor or 
subfactor, an offeror must provide, with its offer, the following 
information:
    (1) The extent of participation of SDB concerns in the performance 
of the contract in terms of the value of the total acquisition. 
Specifically, offerors must provide targets, expressed as dollars and 
percentages of the total contract value, for SDB participation in the 
applicable and authorized North American Industry Classification System 
(NAICS) Industry Subsectors as determined by the Department of Commerce. 
Total dollar and percentage targets must be provided for SDB 
participation by the prime contractor, including team members and joint 
venture partners. In addition, total dollar and percentage targets for 
SDB participation by subcontractors must be provided and listed 
separately;
    (2) The specific identification of SDB concerns to be involved in 
the performance of the contract;
    (3) The extent of commitment to use SDB concerns in the performance 
of the contract:
    (4) The complexity and variety of the work the SDB concerns are to 
perform; and
    (5) The realism of the proposal to use SDB concerns in the 
performance of the contract.
    (c) An SDB offeror who waives the price evaluation adjustment 
provided in FAR 52.219-23 shall provide, with their offer, targets, 
expressed as dollars and percentages of the total contract value, for 
the work that it intends to perform as the prime contractor in the 
applicable and authorized NAICS Industry Subsectors as determined by the 
Department of Commerce. All of the offeror's identified targets 
described in paragraphs (b) and (c) of this clause will be incorporated 
into and made part of any resulting contract.

[[Page 93]]

                           (End of provision)

[66 FR 28676, May 24, 2001]



1552.219-73  Small Disadvantaged Business Targets.

    As prescribed in 1519.204(b), insert the following clause:

             Small Disadvantaged Business Targets (OCT 2000)

    (a) In accordance with FAR 19.1202-4(a) and EPAAR 1552.219-72, the 
following small disadvantaged business (SDB) participation targets 
proposed by the contractor are hereby incorporated into and made part of 
the contract:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
              Contractor targets                   NAICS industry subsector(s)        Dollars     total contract
                                                                                                       value
----------------------------------------------------------------------------------------------------------------
Total Prime Contractor Targets (including
 joint venture partners and team members)
Total Subcontractor Targets
----------------------------------------------------------------------------------------------------------------

    (b) The following specifically identified SDB(s) was (were) 
considered under the Section--SDB participation evaluation factor or 
subfactor (continue on separate sheet if more space is needed):

(1)_____________________________________________________________________
(2)_____________________________________________________________________
(3)_____________________________________________________________________
(4)_____________________________________________________________________
(5)_____________________________________________________________________

    The contractor shall promptly notify the contracting officer of any 
substitution of firms if the new firms are not SDB concerns.
    (c) In accordance with FAR 52.219-25, Small Disadvantaged Business 
Participation Program--Disadvantaged Status and Reporting, the 
contractor shall report on the participation of SDB concerns in the 
performance of the contract no less than thirty (30) calendar days prior 
to each annual contractor performance evaluation [contracting officer 
may insert the dates for each performance evaluation (i.e., every 12 
months after the effective date of contract)] or as otherwise directed 
by the contracting officer.

                           (End of provision)

[66 FR 28676, May 24, 2001, as amended at 67 FR 5072, Feb. 4, 2002]



1552.219-74  Small disadvantaged business participation evaluation factor.

    As prescribed in 1519.204(c), insert the following clause:

 Small Disadvantaged Business Participation Evaluation Factor (OCT 2000)

    Under this factor [or subfactor, if appropriate], offerors will be 
evaluated based on the demonstrated extent of participation of small 
disadvantaged business (SDB) concerns in the performance of the contract 
in each of the authorized and applicable North American Industry 
Classification System (NAICS) Industry Subsectors as determined by the 
Department of Commerce. As part of this evaluation, offerors will be 
evaluated based on:
    (1) The extent to which SDB concerns are specifically identified to 
participate in the performance of the contract;
    (2) The extent of the commitment to use SDB concerns in the 
performance of the contract (enforceable commitments will be weighed 
more heavily than nonenforceable commitments);
    (3) The complexity and variety of the work the SDB concerns are to 
perform under the contract;
    (4) The realism of the proposal to use SDB concerns in the 
performance of the contract; and
    (5) The extent of participation of SDB concerns, at the prime 
contractor and subcontractor level, in the performance of the contract 
(in the authorized and applicable NAICS Industry Subsectors in terms of 
dollars and percentages of the total contract value.

                           (End of provision)

[65 FR 58928, Oct. 3, 2000]



1552.223-70  Protection of human subjects.

    As prescribed in 1523.303-70, insert the following contract clause 
when the contract involves human test subjects.

                 Protection of Human Subjects (APR 1984)

    (a) The Contractor shall protect the rights and welfare of human 
subjects in accordance with the procedures specified in its current 
Institutional Assurance on file with the Agency. The Contractor shall 
certify at least annually that an appropriate institutional committee 
has reviewed and approved the procedures which involve human subjects in 
accordance with the appliable Institutional Assurance accepted by the 
Agency.

[[Page 94]]

    (b) The Contractor shall bear full responsibility for the proper and 
safe performance of all work and services involving the use of human 
subjects under this contract.

                             (End of clause)



1552.223-72  Care of laboratory animals.

    As prescribed in 1523.303-72, insert the following clause:

                  Care of Laboratory Animals (OCT 2000)

    (a) Before undertaking performance of any contract involving the use 
of laboratory animals, the Contractor shall register with the Secretary 
of Agriculture of the United States in accordance with section 6, Public 
Law 89-544, Laboratory Animal Welfare Act, August 24, 1966, as amended 
by Public Law 91-579, Animal Welfare Act of 1970, December 24, 1970. The 
Contractor shall furnish evidence of such registration to the 
contracting officer.
    (b) The Contractor shall acquire animals used in research and 
development programs from a dealer licensed by the Secretary of 
Agriculture, or from exempted sources in accordance with the Public Laws 
enumerated in (a), above, of this provision.
    (c) In the care of any live animals used or intended for use in the 
performance of this contract, the Contractor shall adhere to the 
principles enunciated in the Guide for Care and Use of Laboratory 
Animals prepared by the Institute of Laboratory Animal Resources, 
National Academy of Sciences (NAS)--National Research Council (NRC), and 
the United States Department of Agriculture's (USDA) regulations and 
standards issued under Public Laws enumerated in (a) above. In case of 
conflict between standards, the higher standard shall be used. The 
Contractor's reports on portions of the contract in which animals were 
used shall contain a certificate stating that the animals were cared for 
in accordance with the principles enunciated in the Guide for Care and 
Use of Laboratory Animals prepared by the Institute of Laboratory 
Animals Resources (NAS-NRC), and/or in the regulations and standards as 
promulgated by the Agricultural Research Service, USDA, pursuant to the 
Laboratory Animal Welfare Act of August 24, 1966 as amended (Public Law 
89-544 and Public Law 91-579). NOTE: The Contractor may request 
registration of his facility and a current listing of licensed dealers 
from the Regional Office of the Animal and Plant Health Inspection 
Service (APHIS), USDA, for the region in which his research facility is 
located. The location of the appropriate APHIS Regional Office as well 
as information concerning this program may be obtained by contacting the 
Senior Veterinary, Animal Care Staff, USDA/APHIS, Federal Center 
Building, Hyattsville, MD 20782.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



1552.224-70  Social security numbers of consultants and certain sole proprietors and Privacy Act statement.

    As prescribed in 1524.104, insert the following provision in all 
solicitations.

Social Security Numbers of Consultants and Certain Sole Proprietors and 
                    Privacy Act Statement (APR 1984)

    (a) Section 6041 of title 26 of the U.S. Code requires EPA to file 
Internal Revenue Service (IRS) Form 1099 with respect to individuals who 
receive payments from EPA under purchase orders or contracts. Section 
6109 of title 26 of the U.S. Code authorizes collection by EPA of the 
social security numbers of such individuals for the purpose of filing 
IRS Form 1099. Social security numbers obtained for this purpose will be 
used by EPA for the sole purpose of filing IRS Form 1099 in compliance 
with section 6041 of title 26 of the U.S. Code.
    (b) If the offeror or quoter is an individual, consultant, or sole 
proprietor and has no Employer Identification Number, insert the 
offeror's or quoter's social security number on the following line.

                           (End of provision)



1552.227-76  Project employee confidentiality agreement.

    As prescribed in 1527.409, insert the following clause:

          Project Employee Confidentiality Agreement (MAY 1994)

    (a) The Contractor recognizes that Contractor employees in 
performing this contract may have access to data, either provided by the 
Government or first generated during contract performance, of a 
sensitive nature which should not be released to the public without 
Environmental Protection Agency (EPA) approval. Therefore, the 
Contractor agrees to obtain confidentiality agreements from all of its 
employees working on requirements under this contract.
    (b) Such agreements shall contain provisions which stipulate that 
each employee agrees that the employee will not disclose, either in 
whole or in part, to any entity external to EPA, the Department of 
Justice, or the Contractor, any information or data (as defined in FAR 
Section 27.401) provided by the Government or first generated by the 
Contractor under this contract, any site-specific cost information, or 
any enforcement

[[Page 95]]

strategy without first obtaining the written permission of the EPA 
Contracting Officer. If a contractor, through an employee or otherwise, 
is subpoenaed to testify or produce documents, which could result in 
such disclosure, the Contractor must provide immediate advance 
notification to the EPA so that the EPA can authorize such disclosure or 
have the opportunity to take action to prevent such disclosure. Such 
agreements shall be effective for the life of the contract and for a 
period of five (5) years after completion of the contract.
    (c) The EPA may terminate this contract for convenience, in whole or 
in part, if it deems such termination necessary to prevent the 
unauthorized disclosure of information to outside entities. If such a 
disclosure occurs without the written permission of the EPA Contracting 
Officer, the Government may terminate the contract, for default or 
convenience, or pursue other remedies as may be permitted by law or this 
contract.
    (d) The Contractor further agrees to insert in any subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph, unless otherwise authorized by the 
Contracting Officer.

                             (End of clause)

[59 FR 18624, Apr. 19, 1994]



1552.228-70  Insurance liability to third persons.

    As prescribed in 1528.101, insert the following clause:

            Insurance--Liability to Third Persons (OCT 2000)

    (a)(1) Except as provided in subparagraph (2) below, the Contractor 
shall provide and maintain workers' compensation, employer's liability, 
comprehensive general liability (bodily injury), and comprehensive 
automobile liability (bodily injury and property damage) insurance, and 
such other insurance as the Contracting officer may require under this 
contract.
    (2) The Contractor may, with the approval of the Contracting 
officer, maintain a self-insurance program; provided that, with respect 
to workers' compensation, the Contractor is qualified pursuant to 
statutory authority.
    (3) All insurance required by this paragraph shall be in a form and 
amount and for those periods as the Contracting officer may require or 
approve and with insurers approved by the Contracting officer.
    (b) The Contractor agrees to submit for the Contracting officer's 
approval, to the extent and in the manner required by the Contracting 
officer, any other insurance that is maintained by the Contractor in 
connection with the performance of this contract and for which the 
Contractor seeks reimbursement.
    (c) The Contractor shall be reimbursed for that portion of the 
reasonable cost of insurance allocable to this contract, and required or 
approved under this clause, in accordance with its established cost 
accounting practices.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



1552.229-70  State and local taxes.

    As prescribed in 1529.401-70, insert the following clause:

                    State and Local Taxes (NOV 1989)

    In accordance with FAR 29.303 and FAR 31.205-41, the Contractor or 
any subcontractor under this contract shall not be reimbursed for 
payment of any State and local taxes for which an exemption is 
available. The Contractor is responsible for determining the 
availability of State and local tax exemptions and obtaining such 
exemptions, if available. The Contractor shall include this clause, 
suitably modified to identify the parties, in all subcontracts at any 
tier. The Contractor shall notify the Contracting Officer if problems 
arise in obtaining a State and local tax exemption. The contractor may 
seek a waiver by the Contracting Officer from this requirement if the 
administrative burden of seeking an exemption appears to outweigh the 
potential savings to the Government.

                             (End of clause)

[54 FR 49998, Dec. 4, 1989]



1552.232-70  Submission of invoices.

    As prescribed in 1532.908, insert the following clause:

                    Submission of Invoices (JUN 1996)

    In order to be considered properly submitted, an invoice or request 
for contract financing payment must meet the following contract 
requirements in addition to the requirements of FAR 32.905:
    (a) Unless otherwise specified in the contract, an invoice or 
request for contract financing payment shall be submitted as an original 
and five copies. The Contractor shall submit the invoice or request for 
contract financing payment to the following offices/individuals 
designated in the contract: the

[[Page 96]]

original and two copies to the Accounting Operations Office shown in 
Block ------ on the cover of the contract; two copies to the Project 
Officer (the Project Officer may direct one of these copies to a 
separate address); and one copy to the Contracting Officer.
    (b) The Contractor shall prepare its invoice or request for contract 
financing payment on the prescribed Government forms. Standard Forms 
Number 1034, Public Voucher for Purchases and Services other than 
Personal, shall be used by contractors to show the amount claimed for 
reimbursement. Standard Form 1035, Public Voucher for Purchases and 
Services other than Personal--Continuation Sheet, shall be used to 
furnish the necessary supporting detail or additional information 
required by the Contracting Officer. The Contractor may submit self-
designed forms which contain the required information.
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual work 
assignments, the invoice or request for contract financing payment shall 
also include a summary of the current and cumulative amounts claimed by 
cost element for each work assignment and for the contract total, as 
well as any supporting data for each work assignment as identified in 
the instructions.
    (2) The invoice or request for contract financing payment shall 
include current and cumulative charges by major cost element such as 
direct labor, overhead, travel, equipment, and other direct costs. For 
current costs, each major cost element shall include the appropriate 
supporting schedule identified in the invoice preparation instructions. 
Cumulative charges represent the net sum of current charges by cost 
element for the contract period.
    (3) The charges for subcontracts shall be further detailed in a 
supporting schedule showing the major cost elements for each 
subcontract. The degree of detail for any subcontract exceeding $5,000 
is to be the same as that set forth under (c)(2).
    (4) The charges for consultants shall be further detailed in the 
supporting schedule showing the major cost elements of each consultant. 
For current costs, each major cost element of the consulting agreement 
shall also include the supporting schedule identified in the invoice 
preparation instructions.
    (d) Invoices or requests for contract financing payment must clearly 
indicate the period of performance for which payment is requested. 
Separate invoices or requests for contract financing payment are 
required for charges applicable to the basic contract and each option 
period.
    (e)(1) Notwithstanding the provisions of the clause of this contract 
at FAR 52.216-7, Allowable Cost and Payment, invoices or requests for 
contract financing payment shall be submitted once per month unless 
there has been a demonstrated need and Contracting Officer approval for 
more frequent billings. When submitted on a monthly basis, the period 
covered by invoices or requests for contractor financing payments shall 
be the same as the period for monthly progress reports required under 
this contract.
    (2) If the Contracting Officer allows submissions more frequently 
than monthly, one submittal each month shall have the same ending period 
of performance as the monthly progress report.
    (3) Where cumulative amounts on the monthly progress report differ 
from the aggregate amounts claimed in the invoice(s) or request(s) for 
contract financing payments covering the same period, the contractor 
shall provide a reconciliation of the difference as part of the payment 
request. Alternate I (JUN 1996). If used in a fixed-rate type contract, 
substitute the following paragraphs (c)(1) and (2) for paragraphs (c)(1) 
and (2) of the basic clause:
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual delivery 
orders, the invoice or request for contract financing payment shall also 
include a summary of the current and cumulative amounts claimed by cost 
element for each delivery order and for the contract total, as well as 
any supporting data for each delivery order as identified in the 
instructions.
    (2) The invoice or request for contract financing payment that 
employs a fixed rate feature shall include current and cumulative 
charges by contract labor category and by other major cost elements such 
as travel, equipment, and other direct costs. For current costs, each 
cost element shall include the appropriate supporting schedules 
identified in the invoice preparation instructions.

[61 FR 29317, June 10, 1996]



1552.232-71--1552.232-72  [Reserved]



1552.232-73  Payments--fixed-rate services contract.

    As prescribed in 1532.111, insert the following in indefinite 
delivery/indefinite quantity contracts with fixed services rates.

[[Page 97]]

            Payments--Fixed-Rate Services Contract (OCT 2000)

    The Government shall pay the Contractor as follows upon the 
submission of invoices or vouchers approved by the Contracting Officer:
    (a) Hourly rate. (1) The amounts shall be computed by multiplying 
the appropriate hourly rates prescribed in the Schedule by the number of 
direct labor hours performed. The rates shall include wages, indirect 
costs, general and administrative expenses, and profit. Fractional parts 
of an hour shall be payable on a prorated basis. Vouchers may be 
submitted once each month (or at more frequent intervals, if approved by 
the Contracting Officer) to the paying office. The Contractor shall 
substantiate vouchers by evidence of actual payment and by individual 
daily job, timecards, or other substantiation approved by the 
Contracting Officer. Promptly after receipt of each substantiated 
voucher, the Government shall, except as otherwise provided in this 
contract and subject to the terms of paragraph (e) of this contract, pay 
the voucher as approved by the Contracting Officer.
    (2) Unless otherwise prescribed in the Schedule, the Contracting 
Officer shall withhold 5 percent of the amounts due under this paragraph 
(a), but the total amount withheld shall not exceed $50,000. The amounts 
withheld shall be retained until the execution and delivery of a release 
by the Contractor as provided in paragraph (f) of this contract.
    (3) Unless the Schedule prescribes otherwise, the hourly rates in 
the Schedule shall not be varied by virtue of the Contractor having 
performed work on an overtime basis. If no overtime rates are provided 
in the Schedule and overtime work is approved in advance by the 
Contracting Officer, overtime rates shall be negotiated. Failure to 
agree upon these overtime rates shall be treated as a dispute under the 
``Disputes'' clause of this contract. If the Schedule provides rates for 
overtime the premium portion of those rates will be reimbursable only to 
the extent the overtime is approved by the Contracting Officer.
    (b) Materials, other direct costs, and subcontracts. (1) The 
allowability of direct materials and other direct costs shall be 
determined by the Contracting Officer in accordance with subpart 31.2 of 
the Federal Acquisition Regulation (FAR) in effect on the date of this 
contract. Reasonable and allocable material handling costs or indirect 
costs may be included in the charge for material or other direct costs 
to the extent they are clearly excluded from the hourly rate. Material 
handling and/or indirect cost rates are specified in the ``Indirect 
Costs'' clause. Material handling costs are comprised of indirect costs, 
including, when appropriate, general and administrative expense 
allocated to direct materials in accordance with the Contractor's usual 
accounting practices consistent with subpart 31.2 of the FAR. The 
Contractor shall be reimbursed for items and services purchased directly 
for the contract only when cash, checks, or other forms of actual 
payment have been made for such purchased items or services. Direct 
materials or other direct costs, as used in this clause, are those items 
which enter directly into the end product, or which are used or consumed 
directly in connection with the furnishing of the end product.
    (2) Subcontracted effort may be included in the fixed hourly rates 
discussed in paragraph (a)(l) of this clause and will be reimbursed as 
discussed in that paragraph. Otherwise, the cost of subcontracts that 
are authorized under the subcontracts clause of this contract shall be 
reimbursable costs under this clause provided that the costs are 
consistent with paragraph (b)(3) of this clause. Reimbursable costs in 
connection with subcontracts shall be payable to subcontractors 
consistent with FAR 32.504 in the same manner as for services purchased 
directly for the contract under paragraph (a)(1) of this clause. 
Reimbursable costs shall not include any costs arising from the letting, 
administration, or supervision of performance of the subcontract, if the 
costs are included in the hourly rates payable under paragraph (a)(l) of 
this clause.
    (3) To the extent able, the Contractor shall (i) obtain materials at 
the most advantageous prices available with due regard to securing 
prompt delivery of satisfactory materials; and (ii) take all cash and 
trade discounts, rebates, allowances, credits, salvage, commissions, and 
other benefits. When unable to take advantage of the benefits, the 
Contractor shall promptly notify the Contracting Officer and give the 
reasons. Credit shall be given to the Government for cash and trade 
discounts, rebates, allowances, credits, salvage, the value of any 
appreciable scrap, commissions, and other amounts that have accrued to 
the benefit of the Contractor, or would have accrued except for the 
fault or neglect of the Contractor. The benefits lost without fault or 
neglect on the part of the Contractor, or lost through fault of the 
Government, shall not be deducted from gross costs.
    (4) If the nature of the work to be performed requires the 
Contractor to furnish material which is regularly sold to the general 
public in the normal course of business by the Contractor, the price to 
be paid for such material, notwithstanding paragraph (b)(1) of this 
contract, shall be on the basis of an established catalog or list price, 
in effect when the material is furnished, less all applicable discounts 
to the Government; provided, that in no event shall such price be in 
excess of the Contractor's sales price to its most favored customer for 
the same item in like

[[Page 98]]

quantity, or the current market price, whichever is lower.
    (c) Contracting Officer notification. For contract administration 
purposes, the Contractor shall notify the Contracting Officer in writing 
when the total value of all delivery orders issued exceeds 85 percent of 
the maximum price specified in the schedule.
    (d) Maximum amount. The Government shall not be obligated to pay the 
Contractor any amount in excess of the maximum amount in the Schedule, 
and the Contractor shall not be obligated to continue performance if to 
do so would exceed the maximum amount set forth in the Schedule, unless 
or until the Contracting Officer shall have notified the Contractor in 
writing that the maximum amount has been increased and shall have 
specified in the notice a revised maximum that shall constitute the 
maximum amount for performance under this contract. When and to the 
extent that the maximum amount set forth in the Schedule has been 
increased, any hours expended, and material or other direct costs 
incurred by the Contractor in excess of the maximum amount before the 
increase, shall be allowable to the same extent as if the hours expended 
and material costs had been incurred after the increase in the maximum 
amount.
    (e) Audit. At any time before final payment under this contract, the 
Contracting Officer may request audit of the invoices or vouchers and 
substantiating material. Each payment previously made shall be subject 
to reduction to the extent of amounts, on preceding invoices or 
vouchers, that are found by the Contracting Officer not to have been 
properly payable and shall also be subject to reduction for overpayments 
or to increase for underpayments. Upon receipt and approval of the 
voucher or invoice designated by the Contractor as the ``completion 
voucher'' or ``completion invoice'' and substantiating material, and 
upon compliance by the Contractor with all terms of this contract 
(including, without limitation, terms relating to patents and the terms 
of paragraphs (f) and (g) of this clause), the Government shall promptly 
pay any balance due the Contractor. The completion invoice or voucher, 
and substantiating material, shall be submitted by the Contractor as 
promptly as practicable following completion of the work under this 
contract, but in no event, later than one year (or such longer period as 
the Contracting Officer may approve in writing) from the date of 
completion.
    (f) Assignment. The Contractor, and each assignee under an 
assignment entered into under this contract and in effect at the time of 
final payment under this contract, shall execute and deliver, at the 
time of and as a condition precedent to final payment under this 
contract, a release discharging the Government, its officers, agents, 
and employees of and from all liabilities, obligations, and claims 
arising out of or under this contract, subject only to the following 
exceptions:
    (1) Specified claims in stated amounts, or in estimated amounts if 
the amounts are not susceptible of exact statement by the Contractor.
    (2) Claims, together with reasonable incidental expenses, based upon 
the liabilities of the Contractor to third parties arising out of 
performing this contract, that are not known to the Contractor on the 
date of the execution of the release, and of which the Contractor gives 
notice in writing to the Contracting Officer not more than 6 years after 
the date of the release or the date of any notice to the Contractor that 
the Government is prepared to make final payment, whichever is earlier.
    (3) Claims for reimbursement of costs (other than expenses of the 
Contractor by reason of its indemnification of the Government against 
patent liability), including reasonable incidental expenses, incurred by 
the Contractor under the terms of this contract relating to patents.
    (g) Refunds. The Contractor agrees that any refunds, rebates, or 
credits (including any related interest) accruing to or received by the 
Contractor or any assignee, that arise under the materials portion of 
this contract and for which the Contractor has received reimbursement, 
shall be paid by the Contractor to the Government. The Contractor and 
each assignee, under an assignment entered into under this contract and 
in effect at the time of final payment under this contract, shall 
execute and deliver, at the time of and as a condition precedent to 
final payment under this contract, an assignment to the Government of 
such refunds, rebates, or credits (including any interest) in form and 
substance satisfactory to the Contracting Officer.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 65 FR 58928, Oct. 3, 2000; 66 
FR 28676, May 24, 2001; 67 FR 5073, Feb. 4, 2002]



1552.233-70  Notice of filing requirements for agency protests.

    As prescribed in 1533.103, insert the following clause in all types 
of solicitations:

      Notice of Filing Requirements for Agency Protests (JUL 1999)

    Agency protests must be filed with the Contracting Officer in 
accordance with the requirements of FAR 33.103 (d) and (e). Within 10 
calendar days after receipt of an adverse Contracting Officer decision, 
the protester may submit a written request for an independent review by 
the Head of the Contracting Activity. This independent review is

[[Page 99]]

available only as an appeal of a Contracting Officer decision on a 
protest. Accordingly, as provided in 4 CFR 21.2(a)(3), any protest to 
the GAO must be filed within 10 days of knowledge of the initial adverse 
Agency action.

[64 FR 17110, Apr. 8, 1999]



1552.235-70  Screening business information for claims of confidentiality.

    As prescribed in 1535.007-70(a), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that during performance of this contract, the Contractor may 
be required to collect information to perform the work required under 
this contract. Some of the information may consist of trade secrets or 
commercial or financial information that would be considered as 
proprietary or confidential by the business that has the right to the 
information. The following clause enables EPA to resolve any claims of 
confidentiality concerning the information that the Contractor will 
furnish under a contract. The clause entitled ``Treatment of 
Confidential Business Information'' shall also be included in the 
contract:

 Screening Business Information for Claims of Confidentiality (APR 1984)

    (a) Whenever collecting information under this contract, the 
Contractor agrees to comply with the following requirements:
    (1) If the Contractor collects information from public sources, such 
as books, reports, journals, periodicals, public records, or other 
sources that are available to the public without restriction, the 
Contractor shall submit a list of these sources to the appropriate 
program office at the time the information is initially submitted to 
EPA. The Contractor shall identify the information according to source.
    (2) If the Contractor collects information from a State or local 
Government or from a Federal agency, the Contractor shall submit a list 
of these sources to the appropriate program office at the time the 
information is initially submitted to EPA. The Contractor shall identify 
the information according to source.
    (3) If the Contractor collects information directly from a business 
or from a source that represents a business or businesses, such as a 
trade association:
    (i) Before asking for the information, the Contractor shall identify 
itself, explain that it is performing contractual work for the U.S. 
Environmental Protection Agency, identify the information that it is 
seeking to collect, explain what will be done with the information, and 
give the following notice:
    (A) You may, if you desire, assert a business confidentiality claim 
covering part or all of the information. If you do assert a claim, the 
information will be disclosed by EPA only to the extent, and by means of 
the procedures, set forth in 40 CFR part 2, subpart B.
    (B) If no such claim is made at the time this information is 
received by the Contractor, it may be made available to the public by 
the Environmental Protection Agency without further notice to you.
    (C) The contractor shall, in accordance with FAR part 9, execute a 
written agreement regarding the limitations of the use of this 
information and forward a copy of the agreement to the Contracting 
Officer.
    (ii) Upon receiving the information, the Contractor shall make a 
written notation that the notice set out above was given to the source, 
by whom, in what form, and on what date.
    (iii) At the time the Contractor initially submits the information 
to the appropriate program office, the Contractor shall submit a list of 
these sources, identify the information according to source, and 
indicate whether the source made any confidentiality claim and the 
nature and extent of the claim.
    (b) The Contractor shall keep all information collected from 
nonpublic sources confidential in accordance with the clause in this 
contract entitled ``Treatment of Confidential Business Information'' as 
if it had been furnished to the Contractor by EPA.
    (c) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will require 
the subcontractor to collect information. The Contractor agrees to 
include this clause, including this paragraph (c), and the clause 
entitled ``Treatment of Confidential Business Information'' in all 
subcontracts awarded pursuant to this contract that require the 
subcontractor collect information.

                             (End of clause)



1552.235-71  Treatment of confidential business information.

    As prescribed in 1535.007-70(b), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that in the performance of a contract, EPA may furnish 
confidential business information to the Contractor that EPA obtained 
under the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water 
Pollution Control Act (33 U.S.C. 1251, et seq.), the Safe Drinking Water 
Act (42

[[Page 100]]

U.S.C. 300f et seq.), the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136 et seq.), the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 301 et seq.), the Resource Conservation and 
Recovery Act (42 U.S.C. 6901 et seq.), or the Toxic Substances Control 
Act (15 U.S.C. 2601 et seq.). EPA regulations on confidentiality of 
business information in 40 CFR part 2 subpart B require that the 
Contractor agree to the clause entitled ``Treatment of Confidential 
Business Information'' before any confidential business information may 
be furnished to the Contractor:

        Treatment of Confidential Business Information (APR 1984)

    (a) The Contracting Officer, after a written determination by the 
appropriate program office, may disclose confidential business 
information to the Contractor necessary to carry out the work required 
under this contract. The Contractor agrees to use the confidential 
information only under the following conditions:
    (1) The Contractor and Contractor's Employees shall: (i) use the 
confidential information only for the purposes of carrying out the work 
required by the contract; (ii) not disclose the information to anyone 
other than EPA employees without the prior written approval of the 
Assistant General Counsel for Contracts and Information Law; and (iii) 
return to the Contracting Officer all copies of the information, and any 
abstracts or excerpts therefrom, upon request by the Contracting 
Officer, whenever the information is no longer required by the 
Contractor for the performance of the work required by the contract, or 
upon completion of the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (3) The Contractor agrees that these contract conditions concerning 
the use and disclosure of confidential information are included for the 
benefit of, and shall be enforceable by, both EPA and any affected 
business having a proprietary interest in the information.
    (4) The Contractor shall not use any confidential information 
supplied by EPA or obtained during performance hereunder to compete with 
any business to which the confidential information relates.
    (b) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will involve 
the disclosure of confidential business information by the Contractor to 
the subcontractor. The Contractor agrees to include this clause, 
including this paragraph (b), in all subcontracts awarded, pursuant to 
this contract, that require the furnishing of confidential business 
information to the subcontractor.

                             (End of clause)



1552.235-72  [Reserved]



1552.235-73  Access to Federal Insecticide, Fungicide, and Rodenticide Act Confidential Business Information (Apr 1996).

    As prescribed in 1535.007(a), insert the following provision:

     Access to Federal Insecticide, Fungicide, and Rodenticide Act 
              Confidential Business Information (APR 1996)

    In order to perform duties under the contract, the Contractor will 
need to be authorized for access to Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) confidential business information (CBI). The 
Contractor and all of its employees handling CBI while working under the 
contract will be required to follow the procedures contained in the 
security manual entitled ``FIFRA Information Security Manual.'' These 
procedures include applying for FIFRA CBI access authorization for each 
individual working under the contract who will have access to FIFRA CBI, 
execution of confidentiality agreements, and designation by the 
Contractor of an individual to serve as a Document Control Officer. The 
Contractor will be required to abide by those clauses contained in EPAAR 
1552.235-70, 1552.235- 71, and 1552.235-77 that are appropriate to the 
activities set forth in the contract.
    Until EPA has approved the Contractor's security plan, the 
Contractor may not be authorized for FIFRA CBI access away from EPA 
facilities.

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



1552.235-74  [Reserved]



1552.235-75  Access to Toxic Substances Control Act Confidential Business Information (Apr 1996).

    As prescribed in 1535.007(b), insert the following provision:

[[Page 101]]

Access to Toxic Substances Control Act Confidential Business Information 
                               (APR 1996)

    In order to perform duties under the contract, the Contractor will 
need to be authorized for access to Toxic Substances Control Act (TSCA) 
confidential business information (CBI). The Contractor and all of its 
employees handling CBI while working under the contract will be required 
to follow the procedures contained in the security manual entitled 
``TSCA Confidential Business Information Security Manual.'' These 
procedures include applying for TSCA CBI access authorization for each 
individual working under the contract who will have access to TSCA CBI, 
execution of confidentiality agreements, and designation by the 
Contractor of an individual to serve as a Document Control Officer. The 
Contractor will be required to abide by those clauses contained in EPAAR 
1552.235-70, 1552.235-71, and 1552.235-78 that are appropriate to the 
activities set forth in the contract.
    Until EPA has inspected and approved the Contractor's facilities, 
the Contractor may not be authorized for TSCA CBI access away from EPA 
facilities.

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



1552.235-76  Treatment of Confidential Business Information (Apr 1996).

    As prescribed in 1535.007-70(c), insert the following clause:

     Treatment of Confidential Business Information (TSCA)(APR 1996)

    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose 
confidential business information (CBI) to the Contractor necessary to 
carry out the work required under this contract. The Contractor agrees 
to use the CBI only under the following conditions:
    (1) The Contractor and Contractor's employees shall (i) use the CBI 
only for the purposes of carrying out the work required by the contract; 
(ii) not disclose the information to anyone other than properly cleared 
EPA employees without the prior written approval of the Assistant 
General Counsel for Information Law or his/her designee; and (iii) 
return the CBI to the PO or his/her designee, whenever the information 
is no longer required by the Contractor for performance of the work 
required by the contract, or upon completion of the contract.
    (2) The Contractor shall obtain a written agreement to honor the 
above limitations from each of the Contractor's employees who will have 
access to the information before the employee is allowed access.
    (3) The Contractor agrees that these contract conditions concerning 
the use and disclosure of CBI are included for the benefit of, and shall 
be enforceable by, both EPA and any affected businesses having a 
proprietary interest in the information.
    (4) The Contractor shall not use any CBI supplied by EPA or obtained 
during performance hereunder to compete with any business to which the 
CBI relates.
    (b) The Contractor agrees to obtain the written consent of the CO, 
after a written determination by the appropriate program office, prior 
to entering into any subcontract that will involve the disclosure of CBI 
by the Contractor to the subcontractor. The Contractor agrees to include 
this clause, including this paragraph (b), in all subcontracts awarded 
pursuant to this contract that require the furnishing of CBI to the 
subcontractor.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 61 FR 57339, Nov. 6, 1996]



1552.235-77  Data Security for Federal Insecticide, Fungicide and Rodenticide Act Confidential Business Information (December 1997).

    As prescribed in 1535.007-70(d), insert the following clause:

 Data Security for Federal Insecticide, Fungicide, and Rodenticide Act 
              Confidential Business Information (DEC 1997)

    The Contractor shall handle Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) confidential business information (CBI) in 
accordance with the contract clause entitled ``Treatment of Confidential 
Business Information'' and ``Screening Business Information for Claims 
of Confidentiality,'' the provisions set forth below, and the 
Contractor's approved detailed security plan.
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose FIFRA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all FIFRA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the FIFRA Information Security Manual. 
The manual may be obtained from the Project Officer (PO) or the Chief, 
Information Services Branch (ISB), Program Management and Support 
Division, Office of

[[Page 102]]

Pesticide Programs (OPP) (H7502C), U.S. Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (2) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the Contractor's security plan(s) 
approved by EPA.
    (3) Prior to receipt of FIFRA CBI by the Contractor, the Contractor 
shall ensure that all employees who will be cleared for access to FIFRA 
CBI have been briefed on the handling, control, and security 
requirements set forth in the FIFRA Information Security Manual.
    (4) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of the FIFRA ``Contractor Employee Confidentiality 
Agreement'' from each of the Contractor's employees who will have access 
to the information before the employee is allowed access.
    (b) The Contractor agrees that these requirements concerning 
protection of FIFRA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under FIFRA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in FIFRA (7 U.S.C. 136h(f)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee all documents, 
logs, and magnetic media which contain FIFRA CBI. In addition, each 
Contractor employee who has received FIFRA CBI clearance will sign a 
``Confidentiality Agreement for Contractor Employees Upon Relinquishing 
FIFRA CBI Access Authority.'' The Contractor DCO will also forward those 
agreements to the EPA PO or his/her designee, with a copy to the CO, at 
the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 62 FR 38478, July 18, 1997; 63 
FR 418, Jan. 6, 1998; 65 FR 47325, Aug. 2, 2000]



1552.235-78  Data Security for Toxic Substances Control Act Confidential Business Information (December 1997).

    As prescribed in 1535.007-70(e), insert the following clause:

  Data Security for Toxic Substances Control Act Confidential Business 
                         Information (DEC 1997)

    The Contractor shall handle Toxic Substances Control Act (TSCA) 
confidential business information (CBI) in accordance with the contract 
clause entitled ``Treatment of Confidential Business Information'' and 
``Screening Business Information for Claims of Confidentiality.''
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose TSCA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all TSCA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the TSCA CBI Security Manual. The 
manual may be obtained from the Director, Information Management 
Division (IMD), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency (EPA), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Prior to receipt of TSCA CBI by the Contractor, 
the Contractor shall ensure that all employees who will be cleared for 
access to TSCA CBI have been briefed on the handling, control, and 
security requirements set forth in the TSCA CBI Security Manual.
    (2) The Contractor shall permit access to and inspection of the 
Contractor's facilities in use under this contract by representatives of 
EPA's Assistant Administrator for Administration and Resources 
Management, and the TSCA Security Staff in the OPPT, or by the EPA 
Project Officer.
    (3) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of EPA Form 7740-6, ``TSCA CBI Access Request, Agreement, 
and Approval,'' from each of the Contractor's employees who will have 
access to the information before the employee is allowed access. In 
addition, the Contractor shall obtain from each employee who will be 
cleared for TSCA CBI access all information required by EPA or the U.S. 
Office of Personnel Management for EPA to conduct a Minimum Background 
Investigation.

[[Page 103]]

    (b) The Contractor agrees that these requirements concerning 
protection of TSCA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under TSCA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in TSCA (15 U.S.C. 2613(d)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee, all 
documents, logs, and magnetic media which contain TSCA CBI. In addition, 
each Contractor employee who has received TSCA CBI clearance will sign 
EPA Form 7740-18, ``Confidentiality Agreement for Contractor Employees 
Upon Relinquishing TSCA CBI Access Authority.'' The Contractor DCO will 
also forward those agreements to the EPA OPPT/IMD, with a copy to the 
CO, at the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause, when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and,
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

[61 FR 14266, Apr. 1, 1996, as amended at 62 FR 38478, July 18, 1997; 63 
FR 418, Jan. 6, 1998; 65 FR 47325, Aug. 2, 2000]



1552.235-79  Release of contractor confidential business information (Apr 1996).

    As prescribed in 1535.007-70(f), insert the following clause:

   Release of Contractor Confidential Business Information (APR 1996)

    (a) The Environmental Protection Agency (EPA) may find it necessary 
to release information submitted by the Contractor either in response to 
this solicitation or pursuant to the provisions of this contract, to 
individuals not employed by EPA. Business information that is ordinarily 
entitled to confidential treatment under existing Agency regulations (40 
CFR Part 2) may be included in the information released to these 
individuals. Accordingly, by submission of this proposal or signature on 
this contract or other contracts, the Contractor hereby consents to a 
limited release of its confidential business information (CBI).
    (b) Possible circumstances where the Agency may release the 
Contractor's CBI include, but are not limited to the following:
    (1) To other Agency contractors tasked with assisting the Agency in 
the recovery of Federal funds expended pursuant to the Comprehensive 
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 
9607, as amended, (CERCLA or Superfund);
    (2) To the U.S. Department of Justice (DOJ) and contractors employed 
by DOJ for use in advising the Agency and representing the Agency in 
procedures for the recovery of Superfund expenditures;
    (3) To parties liable, or potentially liable, for costs under CERCLA 
Sec. 107 (42 U.S.C. Sec. 9607), et al, and their insurers (Potentially 
Responsible Parties) for purposes of facilitating settlement or 
litigation of claims against such parties;
    (4) To other Agency contractors who, for purposes of performing the 
work required under the respective contracts, require access to 
information the Agency obtained under the Clean Air Act (42 U.S.C. 7401 
et seq.); the Federal Water Pollution Control Act (33 U.S.C.1251 et 
seq.); the Safe Drinking Water Act (42 U.S.C. 300f et seq.); the Federal 
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.); the 
Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.); or the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(42 U.S.C. 9601 et seq.);
    (5) To other Agency contractors tasked with assisting the Agency in 
handling and processing information and documents in the administration 
of Agency contracts, such as providing both preaward and post award 
audit support and specialized technical support to the Agency's 
technical evaluation panels;
    (6) To employees of grantees working at EPA under the Senior 
Environmental Employment (SEE) Program;
    (7) To Speaker of the House, President of the Senate, or Chairman of 
a Committee or Subcommittee;
    (8) To entities such as the General Accounting Office, boards of 
contract appeals, and the Courts in the resolution of solicitation or 
contract protests and disputes;

[[Page 104]]

    (9) To Agency contractor employees engaged in information systems 
analysis, development, operation, and maintenance, including performing 
data processing and management functions for the Agency; and
    (10) Pursuant to a court order or court-supervised agreement.
    (c) The Agency recognizes an obligation to protect the contractor 
from competitive harm that may result from the release of such 
information to a competitor. (See also the clauses in this document 
entitled ``Screening Business Information for Claims of 
Confidentiality'' and ``Treatment of Confidential Business 
Information.'') Except where otherwise provided by law, the Agency will 
permit the release of CBI under subparagraphs (1), (3), (4), (5), (6), 
or (9) only pursuant to a confidentiality agreement.
    (d) With respect to contractors, 1552.235-71 will be used as the 
confidentiality agreement. With respect to Potentially Responsible 
Parties, such confidentiality agreements may permit further disclosure 
to other entities where necessary to further settlement or litigation of 
claims under CERCLA. Such entities include, but are not limited to 
accounting firms and technical experts able to analyze the information, 
provided that they also agree to be bound by an appropriate 
confidentiality agreement.
    (e) This clause does not authorize the Agency to release the 
Contractor's CBI to the public pursuant to a request filed under the 
Freedom of Information Act.
    (f) The Contractor agrees to include this clause, including this 
paragraph (f), in all subcontracts at all levels awarded pursuant to 
this contract that require the furnishing of confidential business 
information by the subcontractor.

                             (End of clause)

[61 FR 14267, Apr. 1, 1996]



1552.235-80  Access to confidential business information.

    As prescribed in 1535.007-70(g), insert the following clause.

         Access to Confidential Business Information (OCT 2000)

    It is not anticipated that it will be necessary for the contractor 
to have access to confidential business information (CBI) during the 
performance of tasks required under this contract. However, the 
following applies to any and all tasks under which the contractor will 
or may have access to CBI:
    The contractor shall not have access to CBI submitted to EPA under 
any authority until the contractor obtains from the Project Officer a 
certification that the EPA has followed all necessary procedures under 
40 CFR part 2, subpart B (and any other applicable procedures), 
including providing, where necessary, prior notice to the submitters of 
disclosure to the contractor.

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



1552.236-70  Samples and certificates.

    As prescribed in 1536.521, insert the following contract clause in 
construction contracts.

                   Samples and Certificates (APR 1984)

    When required by the specifications or the Contracting Officer, 
samples, certificates, and test data shall be submitted after award of 
the contract, prepaid, in time for proper action by the Contracting 
Officer or his/her designated representative. Certificates and test data 
shall be submitted in triplicate to show compliance of materials and 
construction specified in the contract performance requirements. Samples 
shall be submitted in duplicate by the Contractor, except as otherwise 
specified, to show compliance with the contract requirements. Materials 
or equipment for which samples, certifications or test data are required 
shall not be used in the work until approved in writing by the 
Contracting Officer.

                             (End of clause)



1552.237-70  Contract publication review procedures.

    As prescribed in 1537.110, insert the following contract clause when 
the products of the contract are subject to contract publication review.

            Contract Publication Review Procedures (APR 1984)

    (a) Material generated under this contract intended for release to 
the public is subject to the Agency's publication review process in 
accordance with the EPA Order on this subject and the following.
    (b) Except as indicated in paragraph (c) of this contract, the 
Contractor shall not independently publish or print material generated 
under this contract until after completion of the EPA review process. 
The Project Officer will notify the Contractor of review completion 
within ---- calendar days after the Contractor's transmittal to the 
Project Officer of material generated under this contract. If the 
Contractor does not receive Project Officer notification within this 
period, the Contractor shall immediately notify the Contracting Officer 
in writing.
    (c) The Contractor may publish, in a scientific journal, material 
resulting directly

[[Page 105]]

or indirectly from work performed under this contract, subject to the 
following:
    (1) The Contractor shall submit to the Contracting Officer and the 
Project Officer, at least 30 days prior to publication, a copy of any 
paper, article, or other dissemination of information intended for 
publication.
    (2) The Contractor shall include the following statement in a 
journal article which has not been subjected to EPA review: ``Although 
the research described in this article has been funded wholly or in part 
by the United States Environmental Protection Agency contract (number) 
to (Name of Contractor), it has not been subject to the Agency's review 
and therefore does not necessarily reflect the views of the Agency, and 
no official endorsement should be inferred.''
    (3) Following publication of the journal article, the Contractor 
shall submit five copies of the journal article to the Project Officer, 
and one copy to the Contracting Officer.
    (d) If the Government has completed the review process and agreed 
that the contract material may be attributed to EPA, the Contractor 
shall include the following statement in the document:
    This material has been funded wholly or in part by the United States 
Environmental Protection Agency under contract (number) to (name). It 
has been subject to the Agency's review, and it has been approved for 
publication as an EPA document. Mention of trade names or commercial 
products does not constitute endorsement or recommendation for use.
    (e) If the Government has completed the review process, but decides 
not to publish the material, the Contractor may independently publish 
and distribute the material for its own use and its own expense, and 
shall include the following statement in any independent publication:
    Although the information described in this article has been funded 
wholly or in part by the United States Environmental Protection Agency 
under contract (number) to (name), it does not necessarily reflect the 
views of the Agency and no official endorsement should be inferred.

                             (End of clause)



1552.237-71  Technical direction.

    As prescribed in 1537.110, insert the following contract clause in 
cost-reimbursement contracts.

                     Technical Direction (APR 1984)

    (a) The Project Officer will provide technical direction on contract 
performance. Technical direction includes:
    (1) Direction to the Contractor which assists him in accomplishing 
the Statement of Work.
    (2) Comments on and approval of reports or other deliverables.
    (b) Technical direction must be within the contract Statement of 
Work. The Project Officer does not have the authority to issue technical 
direction which (1) institutes additional work outside the scope of the 
contract; (2) constitutes a change as defined in the ``Changes'' clause; 
(3) causes an increase or decrease in the estimated cost of the 
contract; (4) alters the period of performance; or (5) changes any of 
the other express terms or conditions of the contract.
    (c) Technical direction will be issued in writing by the Project 
Officer or confirmed by him in writing within five (5) calendar days 
after verbal issuance.

                             (End of clause)



1552.237-72  Key personnel.

    As prescribed in 1537.110, insert the following contract clause when 
it is necessary for contract performance to identify Contractor key 
personnel.

                        Key Personnel (APR 1984)

    (a) The Contractor shall assign to this contract the following key 
personnel:
________________________________________________________________________
________________________________________________________________________
    (b) During the first ninety (90) days of performance, the Contractor 
shall make no substitutions of key personnel unless the substitution is 
necessitated by illness, death, or termination of employment. The 
Contractor shall notify the Contracting Officer within 15 calendar days 
after the occurrence of any of these events and provide the information 
required by paragraph (c) of this clause. After the initial 90-day 
period, the Contractor shall submit the information required by 
paragraph (c) to the Contracting Officer at least 15 days prior to 
making any permanent substitutions.
    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete resumes 
for the proposed substitutes, and any additional information requested 
by the Contracting Officer. Proposed substitutes should have comparable 
qualifications to those of the persons being replaced. The Contracting 
Officer will notify the Contractor within 15 calendar days after receipt 
of all required information of the decision on substitutions. This 
clause will be modified to reflect any approved changes of key 
personnel.

                             (End of clause)



1552.237-73  Consultant services and consent.

    As prescribed in 1537.110, insert the following contract clause in 
contracts

[[Page 106]]

where the services of consultants are required. Enter ``none'' in 
paragraph (b) if consent is not given for one or more consultants at the 
time of award.

               Consultant Services and Consent (APR 1984)

    (a) The Contractor shall obtain the consent of the Contracting 
Officer prior to using any consultant on this contract. The Contractor 
shall determine whether any consultant that is used has in effect an 
agreement with another Federal agency for similar or like services and, 
if so, shall notify the Contracting Officer.
    (b) The Contractor may use the following consultants for the period 
of time at the rate shown.

------------------------------------------------------------------------
                                                       Not to exceed the
                Name                    Number of      (daily) (hourly)
                                      (days) (hours)        rate of
------------------------------------------------------------------------
                                     ...............          $........
                                     ...............          $........
------------------------------------------------------------------------

                             (End of clause)



1552.237-74  Publicity.

    As prescribed in 1537.110, insert the following contract clause in 
contracts pertaining to the removal or remedial activities under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) (``Super Fund'') program. The term ``on-scene coordinator'' may 
be substituted with ``Project Officer.''

                          Publicity (APR 1984)

    (a) The Contractor agrees to notify and obtain the verbal approval 
of the on-scene coordinator (or Project Officer) prior to releasing any 
information to the news media regarding the removal or remedial 
activities being conducted under this contract.
    (b) It is also agreed that the Contractor shall acknowledge EPA 
support whenever the work funded in whole or in part by this contract is 
publicized in any news media.

                             (End of clause)



1552.237-75  Paperwork Reduction Act.

    As prescribed in 1537.110, insert this contract clause in any 
contract requiring the collection of identical information from ten (10) 
or more public respondents.

                   Paperwork Reduction Act (APR 1984)

    If it is established at award or subsequently becomes a contractual 
requirement to collect identical information from ten (10) or more 
public respondents, the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 
et seq. applies. In that event, the Contractor shall not take any action 
to solicit information from any of the public respondents until notified 
in writing by the Contracting officer that the required Office of 
Management and Budget (OMB) final clearance was received.

                             (End of clause)



1552.237-76  Government-Contractor Relations.

    As prescribed in 1537.110(g), insert the following clause:

               Government-Contractor Relations (JUN 1999)

    (a) The Government and the Contractor understand and agree that the 
services to be delivered under this contract by the contractor to the 
Government are non-personal services and the parties recognize and agree 
that no employer-employee relationship exists or will exist under the 
contract between the Government and the Contractor's personnel. It is, 
therefore, in the best interest of the Government to afford both parties 
a full understanding of their respective obligations.
    (b) Contractor personnel under this contract shall not:
    (1) Be placed in a position where they are under the supervision, 
direction, or evaluation of a Government employee.
    (2) Be placed in a position of command, supervision, administration 
or control over Government personnel, or over personnel of other 
Contractors under other EPA contracts, or become a part of the 
Government organization.
    (3) Be used in administration or supervision of Government 
procurement activities.
    (c) Employee relationship. (1) The services to be performed under 
this contract do not require the Contractor or his/her personnel to 
exercise personal judgment and discretion on behalf of the Government. 
Rather the Contractor's personnel will act and exercise personal 
judgment and discretion on behalf of the Contractor.
    (2) Rules, regulations, directives, and requirements that are issued 
by the U.S. Environmental Protection Agency under its responsibility for 
good order, administration, and security are applicable to all personnel 
who enter the Government installation or who travel on Government 
transportation. This is not to be construed or interpreted to establish 
any degree of Government control that is inconsistent with a non-
personal services contract.
    (d) Inapplicability of employee benefits. This contract does not 
create an employer-

[[Page 107]]

employee relationship. Accordingly, entitlements and benefits applicable 
to such relationships do not apply.
    (1) Payments by the Government under this contract are not subject 
to Federal income tax withholdings.
    (2) Payments by the Government under this contract are not subject 
to the Federal Insurance Contributions Act.
    (3) The Contractor is not entitled to unemployment compensation 
benefits under the Social Security Act, as amended, by virtue of 
performance of this contract.
    (4) The Contractor is not entitled to workman's compensation 
benefits by virtue of this contract.
    (5) The entire consideration and benefits to the Contractor for 
performance of this contract is contained in the provisions for payment 
under this contract.
    (e) Notice. It is the Contractor's, as well as, the Government's 
responsibility to monitor contract activities and notify the Contracting 
Officer if the Contractor believes that the intent of this clause has 
been or may be violated.
    (1) The Contractor should notify the Contracting Officer in writing 
promptly, within -------- (to be negotiated and inserted into the basic 
contract at contract award) calendar days from the date of any incident 
that the Contractor considers to constitute a violation of this clause. 
The notice should include the date, nature and circumstance of the 
conduct, the name, function and activity of each Government employee or 
Contractor official or employee involved or knowledgeable about such 
conduct, identify any documents or substance of any oral communication 
involved in the conduct, and the estimate in time by which the 
Government must respond to this notice to minimize cost, delay or 
disruption of performance.
    (2) The Contracting Officer will promptly, within -------- (to be 
negotiated and inserted into the basic contract at contract award) 
calendar days after receipt of notice, respond to the notice in writing. 
In responding, the Contracting Officer will either:
    (i) Confirm that the conduct is in violation and when necessary 
direct the mode of further performance,
    (ii) Countermand any communication regarded as a violation,
    (iii) Deny that the conduct constitutes a violation and when 
necessary direct the mode of further performance; or
    (iv) In the event the notice is inadequate to make a decision, 
advise the Contractor what additional information is required, and 
establish the date by which it should be furnished by the Contractor and 
the date thereafter by which the Government will respond.

                             (End of clause)

[64 FR 30444, June 8, 1999]



1552.239-70  Rehabilitation act notice.

    As prescribed in 1523.7003(a), insert the following clause.

                  Rehabilitation Act Notice (OCT 2000)

    (a) EPA has a legal obligation under the Rehabilitation Act of 1973, 
29 U.S.C. 791, to provide reasonable accommodation to persons with 
disabilities who wish to attend EPA programs and activities. Under this 
contract, the contractor may be required to provide support in 
connection with EPA programs and activities, including conferences, 
symposia, workshops, meetings, etc. In such cases, the contractor shall, 
as applicable, include in its draft and final meeting announcements (or 
similar documents) the following notice:
    It is EPA's policy to make reasonable accommodation to persons with 
disabilities wishing to participate in the agency's programs and 
activities, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. 791. 
Any request for accommodation should be made to the specified 
registration contact for a particular program or activity, preferably 
one month in advance of the registration deadline, so that EPA will have 
sufficient time to process the request.
    (b) Upon receipt of such a request for accommodation, the contractor 
shall immediately forward the request to the EPA contracting officer, 
and provide a copy to the appropriate EPA program office. The contractor 
may be required to provide any accommodation that EPA may approve. 
However, in no instance shall the contractor proceed to provide an 
accommodation prior to receiving written authorization from the 
contracting officer.
    (c) The contractor shall insert in each subcontract or consultant 
agreement placed hereunder provisions that shall conform substantially 
to the language of this clause, including this paragraph, unless 
otherwise authorized by the contracting officer.

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



1552.239-103  Acquisition of Energy Star Compliant Microcomputers, Including Personal Computers, Monitors and Printers.

    As prescribed in 1523.7003, insert the following clause:

[[Page 108]]

Acquisition of Energy Star Compliant Microcomputers, Including Personal 
              Computers, Monitors, and Printers (APR 1996)

    (a) The Contractor shall provide computer products that meet EPA 
Energy Star requirements for energy efficiency. By acceptance of this 
contract, the Contractor certifies that all microcomputers, including 
personal computers, monitors, and printers to be provided under this 
contract meet EPA Energy Star requirements for energy efficiency.
    (b) The Contractor shall ship all products with the standby feature 
activated or enabled.
    (c) The Contractor shall provide models that have equivalent 
functionality to similar non-power managed models. This functionality 
should include as a minimum:
    (1) The ability to run commercial off-the-shelf software both before 
and after recovery from a low power state, including retention of files 
opened (with no loss of data) before the power management feature was 
activated.
    (2) If equipment will be used on a local area network (LAN), the 
contractor shall provide equipment that is fully compatible with network 
environments, e.g., personal computers resting in a low-power state 
should not be disconnected from the network.
    (d) The contractor shall provide monitors that are capable of being 
powered down when connected to the accompanying personal computer.

                             (End of clause)

[61 FR 14507, Apr. 2, 1996]



1552.242-70  Indirect costs.

    As prescribed in 1542.705-70, insert the following clause in all 
cost-reimbursement type contracts. If ceilings are not being 
established, enter ``not applicable'' in (c).

                        Indirect Costs (APR 1984)

    (a) In accordance with paragraph (d) of the ``Allowable Cost and 
Payment'' clause, the final indirect cost rates applicable to this 
contract shall be established between the Contractor and the appropriate 
Government representative (EPA, other Government agency, or auditor), as 
provided by FAR 42.703-1(a). EPA's procedures require a Contracting 
Officer determination of indirect cost rates for its contracts. In those 
cases where EPA is the cognizant agency (see FAR 42.705-1), the final 
rate proposal shall be submitted to the cognizant audit activity and to 
the following designated Contracting Officer: Environmental Protection 
Agency, Chief, Cost Policy and Rate Negotiation Branch (3804F), Cost 
Advisory and Financial Analysis Division, Washington, DC 20460.

Where EPA is not the cognizant agency, the final rate proposal shall be 
submitted to the above-cited address, to the cognizant audit agency, and 
to the designated Contracting Officer of the cognizant agency. Upon 
establishment of the final indirect cost rates, the Contractor shall 
submit an executed Certificate of Current Cost or Pricing Data (see FAR 
15.406-2) applicable to the data furnished in connection with the final 
rates to the cognizant audit agency. The final rates shall be contained 
in a written understanding between the Contractor and the appropriate 
Government representative. Pursuant to the ``Allowable Cost and 
Payment'' clause, the allowable indirect costs under this contract shall 
be obtained by applying the final agreed upon rate(s) to the appropriate 
bases.
    (b) Until final annual indirect cost rates are established for any 
period, the Government shall reimburse the contractor at billing rates 
established by the appropriate Government representative in accordance 
with FAR 42.704, subject to adjustment when the final rates are 
established. The established billing rates are currently as follows:

------------------------------------------------------------------------
           Cost center                Period        Rate         Base
------------------------------------------------------------------------
                                   ...........  ...........  ...........
                                   ...........  ...........  ...........
------------------------------------------------------------------------

    These billing rates may be prospectively or retroactively revised by 
mutual agreement, at the request of either the Government or the 
Contractor, to prevent substantial overpayment or underpayment.
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
clause, ceilings are hereby established on indirect costs reimbursable 
under this contract. The Government shall not be obligated to pay the 
Contractor any additional amount on account of indirect costs in excess 
of the ceiling rates listed below:

------------------------------------------------------------------------
           Cost center                Period        Rate         Base
------------------------------------------------------------------------
                                   ...........  ...........  ...........
                                   ...........  ...........  ...........
------------------------------------------------------------------------

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 59 FR 18977, Apr. 21, 1994; 64 
FR 3876, Jan. 26, 1999]



1552.242-72  Financial administrative contracting officer.

    As prescribed in 1542.705 (b), insert the following clause:

[[Page 109]]

         Financial Administrative Contracting Officer (OCT 2000)

    (a) A Financial Administrative Contracting Officer (FACO) is 
responsible for performing certain post-award functions related to the 
financial aspects of this contract when the EPA is the cognizant federal 
agency. These functions include the following duties:
    (1) Review the contractor's compensation structure and insurance 
plan.
    (2) Negotiate advance agreements applicable to treatment of costs 
and to Independent Research & Development/Bid and Proposal costs.
    (3) Negotiate changes to interim billing rates and establish final 
indirect cost rates and billing rates.
    (4) Prepare findings of fact and issue decisions related to 
financial matters under the Disputes clause, if appropriate.
    (5) In connection with Cost Accounting Standards:
    (A) Determine the adequacy of the contractor's disclosure 
statements;
    (B) Determine whether the disclosure statements are in compliance 
with Cost Accounting Standards and FAR Part 31;
    (C) Determine the contractor's compliance with Cost Accounting 
Standards and disclosure statements, if applicable; and
    (D) Negotiate price adjustments and execute supplemental agreements 
under the Cost Accounting Standards clauses at FAR 52.230-3, 52.230-4, 
and 52.230-5.
    (6) Review, approve or disapprove, and maintain surveillance of the 
contractor's purchasing system.
    (7) Perform surveillance, resolve issues, and establish any 
necessary agreements related to the contractor's cost/schedule control 
system, including travel policies/procedures, allocation and cost 
charging methodology, timekeeping and labor distribution policies and 
procedures, subcontract payment practices, matters concerning 
relationships between the contractor and its affiliates and 
subsidiaries, and consistency between bid and accounting 
classifications.
    (8) Review, resolve issues, and establish any necessary agreements 
related to the contractor's estimating system.
    (b) The FACO shall consult with the contracting officer whenever 
necessary or appropriate and shall forward a copy of all agreements/
decisions to the contracting officer upon execution.
    (c) The FACO for this contract is:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



1552.245-70  Decontamination of government property.

    As prescribed in 1545.106(a) and 1545.303-71, insert the following 
contract clause when it is anticipated that a Contractor will use 
Government-furnished or Contractor-acquired property in the cleanup of 
hazardous or toxic substances in the environment.

            Decontamination of Government Property (APR 1984)

    In addition to the requirements of the ``Government Property'' 
clause, the Contractor shall certify in writing that any Government-
furnished property or Contractor-acquired property is returned to the 
Government free from contamination by any hazardous or toxic substances.

                             (End of clause)



1552.245-71  Government-furnished data.

    As prescribed in 1545.106(b), insert the following contract clause 
in any contract that the Government is to furnish the Contractor data. 
Identify in the clause the data to be provided.

                  Government-Furnished Data (APR 1984)

    (a) The Government shall deliver to the Contractor the Government-
furnished data described in the contract. If the data, suitable for its 
intended use, is not delivered to the Contractor, the Contracting 
Officer shall equitably adjust affected provisions of this contract in 
accordance with the ``Changes'' clause when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.
    (b) Title to Government-furnished data shall remain in the 
Government.
    (c) The Contractor shall use the Government-furnished data only in 
connection with this contract.
    (d) The following data will be furnished to the Contractor on or 
about the time indicated:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

[[Page 110]]

                             (End of clause)



1552.245-72  Fabrication or acquisition of nonexpendable property.

    As prescribed in 1545.106(c), insert the following contract clause 
in all cost-reimbursement type contracts or contracts with cost-
reimbursement portions.

     Fabrication or Acquisition of Nonexpendable Property (APR 1984)

    The Contractor shall not fabricate nor acquire under this contract, 
either directly or indirectly through a subcontract, any item of 
nonexpendable property without written approval from the Contracting 
Officer.

                             (End of clause)



1552.245-73  Government property.

    As prescribed in 1545.106(d), insert the following clause:

                     Government Property (OCT 2000)

    (a) The contractor shall not fabricate or acquire, on behalf of the 
Government, either directly or indirectly through a subcontract, any 
item of property without written approval from the Contracting officer.
    (b) In accordance with paragraph (a) above, the contractor is 
authorized to acquire and/or fabricate the equipment listed below for 
use in the performance of this contract. The equipment is subject to the 
provisions of the ``Government Property'' clause.
    (c) The Government will provide the following item(s) of Government 
property to the contractor for use in the performance of this contract. 
This property shall be used and maintained by the contractor in 
accordance with the provisions of the ``Government Property'' clause.
    (d) The ``EPA Contract Property Administration Requirements'' 
provided below apply to this contract.

                  U.S. Environmental Protection Agency

               Property Administration Requirements (PAR)

    1. Purpose. This document sets forth the requirements for 
Environmental Protection Agency (EPA) contractors in the performance of 
their Government property management responsibilities under contracts 
with EPA. These requirements supplement those contained in the 
Government property clause(s) in this contract, and part 45 of the 
Federal Acquisition Regulation (FAR).
    2. Delegation of Contract Property Administration. EPA has delegated 
much of its contract property management oversight to the Defense 
Contract Management Command (DCMC). Shortly after award of a contract, 
the EPA contracting officer (CO) delegates the functions of property 
administration and plant clearance (disposal) for the contract to DCMC. 
Upon acceptance of that delegation, DCMC will provide notification to 
the contractor, identifying the assigned property administrator (PA) and 
plant clearance officer (PLCO). If the contract is not delegated to DCMC 
for administration, any reference to PA and PLCO throughout this 
document shall be construed to mean CO. The DCMC PA is available to the 
contractor for assistance in all matters of property administration. 
Notwithstanding the delegation, as necessary, the contractor may contact 
their EPA CO. In the event of disagreement between the contractor and 
the DCMC PA, the contractor should seek resolution from the CO. Unless 
otherwise directed in the contract, or this document, all originals of 
written information or reports, except direct correspondence between the 
contractor and the DCMC PA, relative to Government property, should be 
forwarded to the administrative CO assigned to this contract.
    3. Requests for Government Property.
    a. In accordance with FAR 45.102, the contractor shall furnish all 
property required for performing Government contracts. If a contractor 
believes that Government facilities are required for performance of the 
contract, the contractor shall submit a written request to the CO. At a 
minimum, the request shall contain the following elements:
    1. Contract number for which the facilities are required.
    2. An item(s) description, quantity and estimated cost.
    3. Certification that no like contractor facilities exist which 
could be utilized.
    4. A detailed description of the task-related purpose of the 
facilities.
    5. Explanation of negative impact if facilities are not provided by 
the Government.
    6. If applicable, recommend the exception under FAR 45.302-1(a) or 
any applicable EPA class deviation (available upon request), and provide 
any other information which would support the furnishing of facilities, 
including contractor-acquired property (CAP).
    7. Except when the request is for material, a lease versus purchase 
analysis shall be furnished with the request to acquire property on 
behalf of the Government. The contractor may not proceed with 
acquisition of facilities on behalf of the Government until receipt of 
written authorization from the EPA CO.
    4. Transfer of Government Property. When the contractor receives 
Government-furnished property (GFP), the contractor should receive, from 
the transferor, (either EPA or another contractor) all of the applicable 
data elements (Attachment 1 of this clause) needed to maintain the 
required records. If this information is not provided at the time of 
receipt of the property, the contractor

[[Page 111]]

shall request it from the EPA CO. The CO will attempt to obtain the data 
from the previous property holder, or, if data does not exist, will 
assist the current property holder in estimating the elements. Prior to 
signing an acceptance document for the property, the receiving 
contractor should perform a complete inventory of the property. 
Responsibility, as well as accountability, passes with the signed 
acceptance. When, at the written direction of the EPA CO, the contractor 
transfers GFP to another contractor, or another Agency, the contractor 
shall provide the applicable data elements (Attachment 1 of this 
clause). Upon return of the property to EPA, the same data must be 
provided by the contractor to the EPA CO.
    5. Records of Government Property.
    a. In accordance with FAR 45.505 and 45.505-1, the contractor shall 
establish and maintain adequate property records for all Government 
property, regardless of value, including property provided to and in the 
possession of a subcontractor. Material (supplies) provided by the 
Government or acquired by the contractor and billed as a direct charge 
to the Government is Government property and records must be established 
as such.
    b. The contractor shall establish and maintain the official 
Government property record. (If the contract contains the FAR Clause 
52.245-1, the Government will maintain the official Government property 
records.) Such records shall contain the applicable data elements 
(Attachment 1 of this clause) for all items of Government property 
regardless of cost.
    c. The Contractor shall identify all Superfund property and 
designate it as such both on the item and on the official Government 
property record. If it is not practicable to tag the item, the 
contractor shall write the ID number on a tag, card or other entity that 
may be kept with the item or in a file.
    d. Support documentation used for posting entries to the property 
record shall provide complete, current and auditable data. Entries shall 
be posted to the record in a timely manner following an action.
    e. For Government vehicles, in addition to the data elements 
required by EPA, the contractor shall also comply with the General 
Services Administration (GSA) and Department of Energy (DOE) record and 
report requirements supplied with all EPA provided motor vehicles. If 
the above requirements were not provided with the vehicle, the 
contractor shall notify the EPA CO.
    f. When Government property is disclosed to be in the possession or 
control of the contractor but not provided under any contract, the 
contractor shall record and report the property in accordance with FAR 
45.502(f) and (h).
    6. Inventories of Government Property. The contractor shall conduct 
a complete physical inventory of EPA property at least once per year, 
unless otherwise directed by the PA. Reconciliation shall be completed 
within 30 calendar days of inventory completion. The contractor shall 
report the results of the inventory, including any discrepancies, to the 
DCMC PA upon completion of the reconciliation. The contractor's records 
shall indicate the completion date of the inventory. See section 9 
herein, Contract Closeout, for information on final inventories.
    7. Reports of Government Property. In accordance with FAR 45.505-14, 
EPA requires an annual summary report, for each contract, by contract 
number, of Government property in the contractor's possession as of 
September 30 each year.
    a. For each classification listed in FAR 45.505-14(a), except 
material, the contractor shall provide the total acquisition cost and 
total quantity. If there are zero items in a classification, or if there 
is an ending balance of zero, the classification must be listed with 
zeros in the quantity and acquisition cost columns.
    b. For material, the contractor shall provide the total acquisition 
cost only.
    c. Property classified as facilities, special tooling, special test 
equipment, and agency peculiar must be reported on two separate lines. 
The first line shall include the total acquisition cost and quantity of 
all items or systems with a unit acquisition cost of $25,000 or more. 
The second line shall include the total acquisition cost and quantity of 
all items with a unit acquisition cost of less than $25,000.
    d. For items comprising a system, which is defined as ``a group of 
interacting items functioning as a complex whole,'' the contractor may 
maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the annual report of Government property the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.
    e. The reports are to be received at EPA and DCMC no later than 
October 31 of each year.
    f. Distribution shall be as follows:

Original to: EPA CO
1 copy: DCMC PA

    g. EPA Contractors are required to comply with GSA's and DOE's 
special reporting requirements for motor vehicles. A statement of these 
requirements will be provided by the EPA Facility Management and 
Services Division (FMSD) concurrent with receipt of each vehicle.
    h. The contractor shall provide detailed reports on an as-needed 
basis, as may be requested by the CO or the PA.

[[Page 112]]

    8. Disposition of Government Property. The disposition process is 
composed of three distinct phases: identification of excess property, 
reporting of excess property, and final disposition.
    a. Identification of Excess Property. The disposition process begins 
with the contractor identifying Government property that is excess to 
its contract. Effective contractor property control systems provide for 
disclosing excesses as they occur. Once inactive Government property has 
been determined to be excess to the contract to which it is accountable, 
it must be screened against the contractor's other EPA contracts for 
further use. If the property may be reutilized, the contractor shall 
notify the CO in writing. Government property will be transferred to 
other contracts only when the COs on both the current contract and the 
receiving contract authorize such a transfer in writing.
    b. Reporting Excess Government Property. Excess Government property 
shall be reported in accordance with FAR Subpart 45.6. Inventory 
schedules A-E (SF Forms 1426-1434) provide the format for reporting of 
excess Government property. Instructions for completing the forms are 
located at FAR 45.606-5 and samples may be found in FAR 53.301-1426 thru 
1434. Inventory schedules shall be forwarded to the DCMC PLCO with a 
copy to the EPA CO. The cover letter, which accompanies the inventory 
schedules, must include the EPA CO's name, address and telephone number. 
Inventory schedules must also contain a notification if the property is 
Superfund property. If the property is Superfund property, the 
contractor must also prominently include the following language on the 
inventory schedule: ``Note to PLCO: Reimbursement to the EPA Superfund 
is required.'' When requested, by the PLCO or the CO, the contractor 
will provide the fair market value for those items requested.
    c. Disposition Instructions.
    1. If directed in writing by the EPA CO, the contractor will retain 
all or part of the excess Government property under the current contract 
for possible future requirements. The contractor shall request, from the 
PLCO, withdrawal from the inventory schedule of those items to be 
retained.
    2. If directed in writing by the EPA CO, the contractor shall 
transfer the property to another EPA contractor. The contractor will 
transfer the property by shipping it in accordance with the instructions 
provided by the CO. The contractor shall request, from the PLCO, 
withdrawal from the inventory schedule of those items to be transferred. 
Further, the contractor shall notify the CO when the transfer is 
complete.
    3. If directed in writing by the EPA CO, the contractor shall 
transfer the property to EPA. The contractor shall ship/deliver the 
property in accordance with the instructions provided by the CO. The 
contractor will request, from the PLCO, withdrawal from the inventory 
schedule of those items to be transferred to EPA. Further, the 
contractor shall notify the CO when the transfer is complete.
    4. The contractor will ship the property elsewhere if directed, in 
writing, by the PLCO.
    5. The PLCO will either conduct the sale or instruct the contractor 
to conduct a sale of surplus property. The contractor will allow 
prospective bidders access to property offered for sale.
    6. Property abandoned by the PLCO on the contractor's site must be 
disposed of in a manner that does not endanger the health and safety of 
the public.
    7. To effect transfer of accountability, the contractor shall 
provide the recipient of the property with the applicable data elements 
set forth in Attachment 1 of this clause. The contractor shall also 
obtain either a signed receipt from the recipient, or proof of shipment. 
The contractor shall update the official Government property record to 
indicate the disposition of the item and to close the record.
    9. Contract Closeout. The contractor shall complete a physical 
inventory of all Government property at contract completion and the 
results, including any discrepancies, shall be reported to the DCMC PA. 
In the case of a terminated contract, the contractor shall comply with 
the inventory requirements set forth in the applicable termination 
clause. The results of the inventory, as well as a detailed inventory 
listing, must be forwarded to the CO. For terminated contracts, the 
contractor will conduct and report the inventory results as directed by 
the CO. However, in order to expedite the disposal process, contractors 
may be required to, or may elect to submit to the CO, an inventory 
schedule for disposal purposes up to six (6) months prior to contract 
completion. If such an inventory schedule is prepared, the contractor 
must indicate the earliest date that each item may be disposed. The 
contractor shall update all property records to show disposal action. 
The contractor shall notify the DCMC PA, in writing, when all work has 
been completed under the contract and all Government property 
accountable to the contract has been disposed.

                              Attachment 1

    Required Data Elements. Where applicable (all elements are not 
applicable to material) the contractor is required to maintain, at a 
minimum, the information related to the following data elements for EPA 
Government property: Contractor Identification/Tag Number; Description; 
Manufacturer; Model; Serial Number; Acquisition Date; Date received; 
Acquisition Cost*; Acquisition Document Number; Location; Contract 
Number; Account Number (if supplied); Superfund

[[Page 113]]

(Yes/No); Inventory Performance Date; Disposition Date.
    * Acquisition cost shall include the price of the item plus all 
taxes, transportation and installation charges allocable to that item.

    Note: For items comprising a system which is defined as, ``a group 
of interacting items functioning as a complex whole,'' the contractor 
may maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the Annual Report of Government Property, the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



PART 1553--FORMS--Table of Contents




Sec.
1553.000 Scope of part.

                  Subpart 1553.2--Prescription of Forms

1553.209 Contractor qualifications.
1553.209-70 EPA Form 1900-26, Contracting Officer's Evaluation of 
          Contractor Performance.
1553.209-71 EPA Form 1900-27, Project Officer's Evaluation of Contractor 
          Performance.
1553.213 Small purchases and other simplified purchase procedures.
1553.213-70 EPA Form 1900-8, Procurement Request/Order.
1553.216 Types of contracts.
1553.216-70 EPA Form 1900-41A, CPAF Contract Summary of Significant 
          Performance Observation.
1553.216-71 EPA Form 1900-41B, CPAF Contract Individual Performance 
          Event.
1553.232 Contract financing.
1553.232-70 EPA Form 1900-3, Assignee's Release.
1553.232-71 EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates, 
          Credits and Other Amounts.
1553.232-72 EPA Form 1900-5, Contractor's Assignment of Refunds, 
          Rebates, and Credits.
1553.232-73 EPA Form 1900-6, Contractor's Release.
1553.232-74 EPA Form 1900-10, Contractor's Cumulative Claim and 
          Reconciliation.
1553.232-75 EPA Form 1900-68, notice of contract costs suspended and/or 
          disallowed.
1553.232-76 [Reserved]

    Authority: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c).

    Source: 49 FR 8886, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Forms referenced in part 1553 do not appear in the 
Code of Federal Regulations.



1553.000  Scope of part.

    This part prescribes Agency forms for use in acquisitions and 
contains requirements and information generally applicable to the forms.



                  Subpart 1553.2--Prescription of Forms



1553.209  Contractor qualifications.



1553.209-70  EPA Form 1900-26, Contracting Officer's Evaluation of Contractor Performance.

    As prescribed in 1509.170-4(a), EPA Form 1900-26 shall be used by 
the Contracting Officer to record his/her evaluation of Contractor 
performance.



1553.209-71  EPA Form 1900-27, Project Officer's Evaluation of Contractor Performance.

    As prescribed in 1509.170-4(a), EPA Form 1900-27 shall be used by 
the Project Officer to record his/her evaluation of Contractor 
performance.



1553.213  Small purchases and other simplified purchase procedures.



1553.213-70  EPA Form 1900-8, Procurement Request/Order.

    As prescribed in 1513.505-2, EPA Form 1900-8 may be used in lieu of 
Optional Forms 347 and 348 for individual purchases.



1553.216  Types of contracts.



1553.216-70  EPA Form 1900-41A, CPAF Contract Summary of Significant Performance Observation.

    As prescribed in 1516.404-278, EPA Form 1900-41A shall be used to 
document significant performance observations under CPAF contracts.



1553.216-71  EPA Form 1900-41B, CPAF Contract Individual Performance Event.

    As prescribed in 1516.404-278, EPA Form 1900-41B shall be used to 
document individual performance events under CPAF contracts.

[[Page 114]]



1553.232  Contract financing.



1553.232-70  EPA Form 1900-3, Assignee's Release.

    As prescribed in 1532.805-70(a), the EPA Form 1900-3 is required to 
be submitted by the assignee for cost-reimbursement contracts prior to 
final payment under the contract.



1553.232-71  EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates, Credits and Other Amounts.

    As prescribed in 1532.805-70(b), the EPA Form 1900-4 must accompany 
the assignee's release prior to final payment under cost-reimbursement 
contracts.



1553.232-72  EPA Form 1900-5, Contractor's Assignment of Refunds, Rebates, and Credits.

    As prescribed in 1532.805-70(c), the EPA Form 1900-5 must be 
prepared by the Contractor prior to final payment under cost-
reimbursement contracts and must accompany the Contractor's release.



1553.232-73  EPA Form 1900-6, Contractor's Release.

    As prescribed in 1532.805-70(d), the EPA Form 1900-6 must be 
submitted by the Contractor under cost-reimbursement contracts prior to 
final payment thereunder.



1553.232-74  EPA Form 1900-10, Contractor's Cumulative Claim and Reconciliation.

    As prescribed in 1532.170(a), the EPA Form 1900-10 shall be used for 
an accounting of the cumulative charges and costs for cost-reimbursement 
contracts from the inception of the contract to completion. It shall be 
submitted by the Contractor along with the completion voucher.



1553.232-75  EPA Form 1900-68, notice of contract costs suspended and/or disallowed.

    As prescribed in 1532.170(b), the Contracting Officer shall insert 
EPA Form 1900-68 in all cost-reimbursement type and fixed-rate type 
contracts.

[61 FR 29318, June 10, 1996]



1553.232-76  [Reserved]

    Appendix I to Chapter 15--Environmental Protection Agency; Class 
 Justification for Other Than Full and Open Competition in Acquisitions 
  From the Federal Prison Industries and the Government Printing Office

    1. The Environmental Protection Agency (EPA) anticipates the 
acquisition of supplies from the Federal Prison Industries (UNICOR) and 
the acquisition of Government printing and related supplies from the 
Government Printing Office (GPO) to meet the needs of the Agency.
    2. The Agency is authorized to make these acquisitions from the 
UNICOR and GPO without full and open competition under the authority in 
41 U.S.C. 253(c)(5) as sources required by statute, i.e., 18 U.S.C. 4124 
and 44 U.S.C. 501-504, 1121.
    3. The anticipated cost of these acquisitions to the Agency will be 
fair and reasonable.
    4. This class justification applies to any proposed acquisition made 
by the EPA from the UNICOR or GPO.
    5. This class justification will remain in effect until April 1, 
1988.
    6. The undersigned certifies that this class justification is 
accurate and complete to the best of his knowledge and belief.

[50 FR 14361, Apr. 11, 1985]

[[Page 115]]



  CHAPTER 16--OFFICE OF PERSONNEL MANAGEMENT FEDERAL EMPLOYEES HEALTH 
                     BENEFITS ACQUISITION REGULATION




                          (Parts 1600 to 1699)

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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1601            Federal Acquisition Regulations System......         117
1602            Definitions of words and terms..............         118
1603            Improper business practices and personal 
                    conflicts of interest...................         120
1604            Administrative matters......................         121
                   SUBCHAPTER B--ACQUISITION PLANNING
1605            Publicizing contract actions................         123
1606            Competition requirements....................         123
1609            Contractor qualifications...................         123
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1614            Sealed bidding..............................         129
1615            Contracting by negotiation..................         129
1616            Types of contracts..........................         133
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1622            Application of labor laws to Government 
                    acquisitions............................         134
1624            Protection of privacy and freedom of 
                    information.............................         134
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1629            Taxes.......................................         135
1631            Contract cost principles and procedures.....         135
1632            Contract financing..........................         138

[[Page 116]]

1633            Protests, disputes, and appeals.............         140
                  SUBCHAPTER G--CONTRACT ADMINISTRATION
1642            Contract administration.....................         141
1643            Contract modifications......................         144
1644            Subcontracting policies and procedures......         144
1645            Government property.........................         144
1646            Quality assurance...........................         144
1649            Termination of contracts....................         145
                     SUBCHAPTER H--CLAUSES AND FORMS
1652            Contract clauses............................         146
1653            Forms.......................................         168

[[Page 117]]



                          SUBCHAPTER A--GENERAL



PART 1601--FEDERAL ACQUISITION REGULATIONS SYSTEM--Table of Contents




              Subpart 1601.1--Purpose, Authority, Issuance

Sec.
1601.101 Purpose.
1601.102 Authority.
1601.103 Applicability.
1601.104 Issuance.
1601.104-1 Publication and code arrangement.
1601.104-2 Arrangement of regulation.
1601.105 OMB approval under the Paperwork Reduction Act.

         Subpart 1601.3--Agency Acquisition Regulation (FEHBAR)

1601.301 Policy.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16037, May 1, 1987, unless otherwise noted.



              Subpart 1601.1--Purpose, Authority, Issuance



1601.101  Purpose.

    (a) This subpart establishes chapter 16, Office of Personnel 
Management Federal Employees Health Benefits Acquisition Regulation, 
within title 48, the Federal Acquisition Regulation System, of the Code 
of Federal Regulations. The short title of this regulation shall be 
FEHBAR.
    (b) The purpose of the FEHBAR is to implement and supplement the 
Federal Acquisition Regulation (FAR) specifically for acquiring and 
administering contracts with health insurance carriers in the Federal 
Employees Health Benefits Program (FEHBP).



1601.102  Authority.

    (a) The FEHBAR is issued by the Director of the Office of Personnel 
Management in accordance with the authority of 5 U.S.C. chapter 89 and 
other applicable law and regulation.
    (b) The FEHBAR does not replace or incorporate regulations found at 
5 CFR part 890, which provides the substantive policy guidance for 
administration of the FEHBP under 5 U.S.C. Chapter 89. The following is 
the order of precedence in interpreting a contract provision under the 
FEHBP:
    (1) 5 U.S.C. Chapter 89;
    (2) 5 CFR part 890;
    (3) 48 CFR Chapters 1 and 16;
    (4) The FEHBP contract.

[52 FR 16037, May 1, 1987, as amended at 59 FR 14764, Mar. 30, 1994]



1601.103  Applicability.

    The FAR is generally applicable to contracts negotiated in the FEHBP 
pursuant to 5 U.S.C. chapter 89. The FEHBAR implements and supplements 
the FAR where necessary to identify basic and significant acquisition 
policies unique to the FEHBP.



1601.104  Issuance.



1601.104-1  Publication and code arrangement.

    (a) The FEHBAR and its subsequent changes are published in
    (1) Daily issues of the Federal Register; and
    (2) Cumulative form of the Code of Federal Regulations.
    (b) The FEHBAR is issued as chapter 16 of title 48 of the Code of 
Federal Regulations.



1601.104-2  Arrangement of regulation.

    (a) General. The FEHBAR conforms with the arrangement and numbering 
system prescribed by FAR 1.104. However, when a FAR part or subpart is 
adequate for use without further OPM implementation or supplementation, 
there will be no corresponding FEHBAR part, subpart, etc. The FEHBAR is 
to be used in conjunction with the FAR and the order for use is:
    (1) FAR;
    (2) FEHBAR.
    (b) Citation. (1) In formal documents, such as legal briefs, 
citation of chapter 16 material that has been published in the Federal 
Register will be to title 48 of the Code of Federal Regulations.
    (2) In informal documents, any section of chapter 16 may be 
identified as ``FEHBAR'' followed by the section number.

[[Page 118]]



1601.105  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to obtain approval from the Office of Management and 
Budget (OMB) before collecting information from ten or more members of 
the public. The information collection and recordkeeping requirements 
contained in this regulation have been approved by the OMB. The 
following OMB control numbers apply.

------------------------------------------------------------------------
                         Provision                           Control No.
------------------------------------------------------------------------
FEHBAR 1604.705............................................    3206-0145
FAR 9.1....................................................    3206-0145
------------------------------------------------------------------------



         Subpart 1601.3--Agency Acquisition Regulation (FEHBAR)



1601.301  Policy.

    (a) Procedures, contract clauses, and other aspects of the 
acquisition process for contracts in the FEHBP shall be consistent with 
the principles of the FAR. Changes to the FAR that are otherwise 
authorized by statute or applicable regulation, dictated by the 
practical realities associated with the unique nature of health care 
procurements, or necessary to satisfy specific needs of the Office of 
Personnel Management shall be implemented as amendments to the FEHBAR 
and published in the Federal Register, or as deviations to the FAR in 
accordance with FAR subpart 1.4.
    (b) Internal procedures, instructions, and guides that are necessary 
to clarify or implement the FEHBAR within OPM may be issued by agency 
officials specifically designated by the Director, OPM. Normally, such 
designations will be specified in the OPM Administrative Manual, which 
is routinely available to agency employees and will be made available to 
interested outside parties upon request. Clarifying or implementing 
procedures, instructions, and guides issued pursuant to this section of 
the FEHBAR must--
    (1) Be consistent with the policies and procedures contained in this 
regulation as implemented and supplemented from time to time; and
    (2) Follow the format, arrangement, and numbering system of this 
regulation to the extent practicable.



PART 1602--DEFINITIONS OF WORDS AND TERMS--Table of Contents




Sec.
1602.000-70 Scope of part.

               Subpart 1602.1--Definitions of FEHBP Terms

1602.170 Definition of terms.
1602.170-1 Carrier.
1602.170-2 Community rate.
1602.170-3 Comprehensive medical plan.
1602.170-4 Contractor.
1602.170-5 Cost or pricing data.
1602.170-6 Director.
1602.170-7 Experience rate.
1602.170-8 FEHBP.
1602.170-9 Health benefits plan.
1602.170-10 Letter of credit.
1602.170-11 Negotiated benefits contracts.
1602.170-12 OPM.
1602.170-13 Similarly sized subscriber groups.
1602.170-14 Subcontractor.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16038, May 1, 1987, unless otherwise noted.



1602.000-70  Scope of part.

    This part defines words and terms commonly used in this regulation.



               Subpart 1602.1--Definitions of FEHBP Terms



1602.170  Definition of terms.

    In this chapter, unless otherwise indicated, the following terms 
have the meaning set forth in this subpart.



1602.170-1  Carrier.

    Carrier means a voluntary association, corporation, partnership, or 
other nongovernmental organization which is lawfully engaged in 
providing, delivering, paying for, or reimbursing the cost of health 
care services under group insurance policies or contracts, medical or 
hospital service agreements, membership or subscription contracts, 
including a health maintenance organization, a nonprofit hospital and 
health service corporation, or any other entity providing a plan of 
health insurance, health benefits or

[[Page 119]]

health services, in consideration of premiums or other periodic charges 
payable to the carrier.

[62 FR 47573, Sept. 10, 1997]



1602.170-2  Community rate.

    (a) Community rate means a rate of payment based on a per member per 
month capitation rate or its equivalent that applies to a combination of 
the subscriber groups for a comprehensive medical plan carrier. 
References in this subchapter to ``a combination of cost and price 
analysis'' relating to the applicability of policy and contract clauses 
refer to comprehensive medical plan carriers using community rates.
    (b) Adjusted community rate means a community rate which has been 
adjusted for expected use of medical resources of the FEHBP group. An 
adjusted community rate is a prospective rate and cannot be 
retroactively revised to reflect actual experience, utilization, or 
costs of the FEHBP group.

[55 FR 27414, July 2, 1990, as amended at 62 FR 47573, Sept. 10, 1997]



1602.170-3  Comprehensive medical plan.

    Comprehensive Medical Plan means a plan as defined under 5 U.S.C. 
8903(4).



1602.170-4  Contractor.

    Contractor means carrier.



1602.170-5  Cost or pricing data.

    (a) Experience rated carriers. Cost or pricing data for experience 
rated carriers includes information such as claims data; actual or 
negotiated benefits payments made to providers of medical services for 
the provision of health care such as capitation not adjusted for 
specific groups, per diems, and Diagnostic Related Group (DRG) payments; 
cost data; utilization data; and administrative expenses and retentions.
    (b) Community rated carriers. Cost or pricing data for community 
rated carriers is the specialized rating data used by carriers in 
computing a rate that is appropriate for the Federal group and the 
similarly sized subscriber groups (SSSGs). Such data include, but are 
not limited to, capitation rates; prescription drug, hospital, and 
office visit benefits utilization data; trend data; actuarial data; 
rating methodologies for other groups; standardized presentation of the 
carrier's rating method (age, sex, etc.) showing that the factor 
predicts utilization; tiered rates information; ``step-up'' factors 
information; demographics such as family size; special benefit loading 
capitations; and adjustment factors for capitation.

[62 FR 47574, Sept. 10, 1997]



1602.170-6  Director.

    Director means the Director of the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-7  Experience rate.

    Experience rate means a rate for a given group that is the result of 
that group's actual paid claims, administrative expenses, retentions, 
and estimated claims incurred but not reported, adjusted for benefit 
modifications, utilization trends, and economic trends. Actual paid 
claims include any actual or negotiated benefits payments made to 
providers of medical services for the provision of health care such as 
capitation not adjusted for specific groups, per diems, and Diagnostic 
Related Group (DRG) payments.

[54 FR 27414, July 2, 1990. Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-8  FEHBP.

    FEHBP means the Federal Employees Health Benefits Program.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-9  Health benefits plan.

    Health benefits plan means a group insurance policy, contract, 
medical or hospital service agreement, membership or subscription 
contract, or similar group arrangements provided by a carrier for the 
purpose of providing, arranging for, delivering, paying for, or 
reimbursing any of the costs of health care services.

[62 FR 47574, Sept. 10, 1997]

[[Page 120]]



1602.170-10  Letter of credit.

    Letter of credit means the method by which certain carriers, and 
their underwriters if authorized, receive recurring premium payments and 
contingency reserve payments by drawing against a commitment (certified 
by a responsible OPM official) which specifies a dollar amount 
available. For each carrier participating in the letter of credit 
arrangement for payment under this part, the terms ``carrier reserves,'' 
and ``special reserves'' include any balance in the carrier's letter of 
credit account.

[53 FR 51783, Dec. 23, 1988, as amended at 57 FR 14359, Apr. 20, 1992. 
Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-11  Negotiated benefits contracts.

    Negotiated benefits contracts are FEHBP contracts in which benefits 
provided and subscription income are based on either community rating or 
experience rating.

[62 FR 47574, Sept. 10, 1997]



1602.170-12  OPM.

    OPM means the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988 
and further redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-13  Similarly sized subscriber groups.

    (a) Similarly sized subscriber groups (SSSGs) are a comprehensive 
medical plan carrier's two employer groups that:
    (1) As of the date specified by OPM in the rate instructions, have a 
subscriber enrollment closest to the FEHBP subscriber enrollment; and,
    (2) Use any rating method other than retrospective experience 
rating; and,
    (3) Meet the criteria specified in the rate instructions issued by 
OPM.
    (b) Any group with which an FEHB carrier enters into an agreement to 
provide health care services is a potential SSSG (including separate 
lines of business, government entities, groups that have multi-year 
contracts, and groups having point-of-service products).
    (c) Exceptions to the general rule stated in paragraph (b) of this 
section are (and the following groups must be excluded from SSSG 
consideration):
    (1) Groups the carrier rates by the method of retrospective 
experience rating;
    (2) Groups consisting of the carrier's own employees;
    (3) Medicaid groups, Medicare groups, and groups that have only a 
stand alone benefit (such as dental only);
    (4) A purchasing alliance whose rate-setting is mandated by the 
State or local government.
    (d) OPM shall determine the FEHBP rate by selecting the lower of the 
two rates derived by using rating methods consistent with those used to 
derive the SSSG rates.

[62 FR 47574, Sept. 10, 1997]



1602.170-14  Subcontractor.

    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor, except for providers of direct medical services or 
supplies pursuant to the Carrier's health benefits plan.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988, 
and further redesignated at 55 FR 27414, July 2, 1990 and 62 FR 47574, 
Sept. 10, 1997]



PART 1603--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents




      Subpart 1603.70--Misleading, Deceptive, or Unfair Advertising

Sec.
1603.7001 Policy.
1603.7002 Additional guidelines.
1603.7003 Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.



      Subpart 1603.70--Misleading, Deceptive, or Unfair Advertising



1603.7001  Policy.

    (a) OPM prepares and distributes or makes available to Federal 
employees and annuitants a comparison booklet which presents summary 
information and a benefits brochure which details

[[Page 121]]

benefits, limitations, and premium rates for all participating plans. 
OPM does not encourage, support, or reimburse participating carriers for 
the costs of advertisements. However, while OPM believes that 
advertising is unnecessary, it recognizes that the decision to use 
advertising rests with each carrier.
    (b) OPM discourages advertising that is misleading or deceptive. 
This includes advertising that is directed at other carriers' plans 
participating in the Program and which uses incomplete or inappropriate 
comparisons or disparaging or minimizing techniques. Such unfair 
practices are prejudicial to the interests of the vast majority of 
carriers whose advertising is fair and accurate.
    (c) Failure to conform to the requirements of this subpart shall be 
a material breach of the contract and may result in withdrawal of 
approval to continue participation in the FEHB Program.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1603.7002  Additional guidelines.

    Any advertisements which identify a carrier's participation in the 
FEHBP shall--
    (a) Be limited to the merits of the carrier's FEHBP plan and shall 
be limited to factual statements of the benefits and rates offered by 
that plan. The official document for benefit and rate comparisons among 
FEHBP plans is the comparison chart issued by OPM.
    (b) Not use the FEHBP logo.
    (c) Recognize that the officially approved plan brochure is the sole 
contractual statement of benefits, limitations, and exclusions. All 
advertisements that in any way discuss plan benefits shall contain the 
following statement:

    This is a summary (or brief description) of the features of the 
(plan's name). Before making a final decision, please read the plan's 
officially approved brochure, (brochure number). All benefits are 
subject to the definitions, limitations, and exclusions set forth in the 
official brochure.
    (d) Set forth the rates for the plan, if the advertisements discuss 
benefits.
    (e) Not give instructions on enrollment. Statements on enrollment 
procedures, requirements, or eligibility shall be limited to those such 
as:
    To sign up, fill out a Health Benefits Registration Form (Standard 
Form 2809) from your personnel office indicating the enrollment you 
want:
    The enrollment codes for (plan's name) are:

     Self Only ------------ Enrollment Code------------

     Self and Family ------------ Enrollment Code ------------

    The form must then be returned to your personnel office before the 
(date) deadline. Your (plan's name) coverage will begin the first pay 
period in January, (year). If you are a retired Federal employee and 
need forms, contact the Office of Personnel Management at P.O. Box 809, 
Washington, DC 20044.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1603.7003  Contract clause.

    The clause at 1652.203-70 shall be inserted in all FEHBP contracts.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



PART 1604--ADMINISTRATIVE MATTERS--Table of Contents




              Subpart 1604.7--Contractor Records Retention

Sec.
1604.703 Policy.
1604.705 Specific retention periods.

             Subpart 1604.9--Taxpayer Identification Number

1604.970 Taxpayer Identification Number.

                Subpart 1604.70--Coordination of Benefits

1604.7001 Coordination of benefits clause.

             Subpart 1604.71--Disputed Health Benefit Claims

1604.7101 Filing health benefit claims/court review of disputed claims.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.

[[Page 122]]



              Subpart 1604.7--Contractor Records Retention



1604.703  Policy.

    In view of the unique payment schedules of FEHBP contracts and the 
compelling need for records retention periods sufficient to protect the 
Government's interest, contractors shall be required to maintain records 
for periods determined in accordance with the provisions of FAR 
4.703(b)(1).



1604.705  Specific retention periods.

    Unless the contracting officer determines that there exists a 
compelling reason to include only the contract clause specified by FAR 
52.215-2 ``Audit & Records--Negotiation,'' the contracting officer shall 
insert the clause at 1652.204-70 in all FEHBP contracts.

[52 FR 16039, May 1, 1987, as amended at 62 FR 47574, Sept. 10, 1997]



             Subpart 1604.9--Taxpayer Identification Number

    Source: 65 FR 36386, June 8, 2000, unless otherwise noted.



1604.970  Taxpayer Identification Number.

    Insert the clause at section 1652.204-73 in all FEHBP contracts.



                Subpart 1604.70--Coordination of Benefits



1604.7001  Coordination of benefits clause.

    OPM expects all FEHBP plans to coordinate benefits. Accordingly, the 
clause set forth at 1652.204-71 shall be inserted in all FEHBP 
contracts.



             Subpart 1604.71--Disputed Health Benefit Claims



Sec. 1604.7101  Filing health benefit claims/court review of disputed claims.

    Guidelines for a Federal Employees Health Benefit (FEHB) Program 
covered individual to file a claim for payment or service and for legal 
actions on disputed health benefit claims are found at 5 CFR 890.105 and 
890.107, respectively. The contract clause at 1652.204-72 of this 
chapter, reflecting this guidance, must be inserted in all FEHB Program 
contracts.

[61 FR 15198, Apr. 5, 1996]

[[Page 123]]



                   SUBCHAPTER B--ACQUISITION PLANNING



PART 1605--PUBLICIZING CONTRACT ACTIONS--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1605.000  Applicability.

    FAR part 5 has no practical application to the FEHBP because OPM 
does not issue solicitations. Eligible contractors (i.e., qualified 
health benefits carriers) are identified in accordance with 5 U.S.C. 
8903. Offerors voluntarily come forth in accordance with procedures 
provided in 5 CFR part 890.

[52 FR 16039, May 1, 1987]



PART 1606--COMPETITION REQUIREMENTS--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1606.001  Applicability.

    FAR part 6 has no practical application to FEHBP contracts in view 
of the statutory exception provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]



PART 1609--CONTRACTOR QUALIFICATIONS--Table of Contents




        Subpart 1609.4--Debarment, Suspension, and Ineligibility

1609.470 Notification of Debarment, Suspension, and Ineligibility.
1609.471 Contractor certification.

     Subpart 1609.70--Minimum Standards for Health Benefits Carriers

1609.7001 Minimum standards for health benefits carriers.

                 Subpart 1609.71--Performance Evaluation

1609.7101 Policy.
1609.7101-1 Community-rated carrier incentive performance elements.
1609.7101-2 Community-rated carrier performance factors.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



        Subpart 1609.4--Debarment, Suspension, and Ineligibility

    Source: 59 FR 14764, Mar. 30, 1994, unless otherwise noted.



1609.470  Notification of Debarment, Suspension, and Ineligibility.

    (FAR) 48 CFR, part 9, subpart 9.4 is supplemented as set out in the 
certification required in 1609.471 by converting the FAR ``offeror's'' 
certification at (FAR) 48 CFR 52.209-5 into a carrier's certification. 
This change reflects the FEHBP's statutory exemption from competitive 
bidding (5 U.S.C. 8902), which obviates the issuance of solicitations.



1609.471  Contractor certification.

    All FEHBP carriers and applicant carriers are required to submit the 
following certification. Applicant carriers must submit the 
certification prior to OPM's determination on the application for 
approval to participate in the FEHBP. Current carriers must submit the 
certification once, along with their benefit and rate proposals for the 
1995 contract year.

  Debarment, Suspension, Proposed Debarment, and Other Responsibility 
                                 Matters

    The Carrier certifies, to the best of its knowledge and belief, 
that--
    (a) The Carrier and/or any of its Principals--
    (1) Are ( ) are not ( ) presently debarred, suspended, proposed for 
debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (2) Have ( ) have not ( ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (3) Are ( ) are not ( ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of

[[Page 124]]

any of the offenses enumerated in subdivision (a)(2) of this clause.
    (4) The Carrier has ( ) has not ( ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.
    (b) Principals, for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the Carrier subject to prosecution 
under section 1001, title 18, United States Code.
    (c) The Carrier shall provide immediate written notice to the 
Contracting Officer if, at any time, the Carrier learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    (d) A Carrier's certification that any of the actions mentioned in 
the certification exists will not necessarily result in termination of 
the contract. However, the certification, or the Carrier's failure to 
provide such additional information as requested by the Contracting 
Officer, will be considered in connection with a determination of the 
Carrier's responsibility under subpart 1609.70, Minimum Standards for 
Health Benefits Carriers.
    (e) Nothing contained in the certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by this section. The knowledge and 
information of the Carrier is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (f) The certification in this section is a material representation 
of fact upon which reliance is placed by the Contracting Officer. If it 
is later determined that the Carrier knowingly rendered an erroneous 
certification, in addition to other remedies available to the 
Government, the Contracting Officer may terminate the contract for 
default.

Carrier Name:___________________________________________________________
________________________________________________________________________

Name of Chief Executive Officer

Date signed:____________________________________________________________

                          (End of Certificate)



     Subpart 1609.70--Minimum Standards for Health Benefits Carriers



1609.7001  Minimum standards for health benefits carriers.

    (a) The carrier of an approved health benefits plan shall meet the 
requirements of chapter 89 of title 5, United States Code; part 890 of 
title 5, Code of Federal Regulations; chapter 1 of title 48, Code of 
Federal Regulations, and the following standards. The carrier shall 
continue to meet the requirements of chapter 89 of title 5, United 
States Code, and the standards cited in this paragraph while under 
contract with OPM. Failure to meet these requirements and standards is 
cause for OPM's withdrawal of approval of the health benefits carrier 
and termination of the contract in accordance with 5 CFR 890.204.
    (1) It must be lawfully engaged in the business of supplying health 
benefits.
    (2) It must have, in the judgement of OPM, the financial resources 
and experience in the field of health benefits to carry out its 
obligations under the plan.
    (3) It must keep such reasonable financial and statistical records, 
and furnish such reasonable financial and statistical reports with 
respect to the plan, as may be requested by OPM.
    (4) It must permit representatives of OPM and of the General 
Accounting Office to audit and examine its records and accounts which 
pertain, directly or indirectly, to the plan at such reasonable times 
and places as may be designated by OPM or the General Accounting Office.
    (5) It must accept, subject to adjustment for error or fraud, in 
payment of its charges for health benefits for all enrollees in its 
plan, the enrollment charges received by the Employees Health Benefits 
(EHB) Fund less amounts set aside for the administrative and contingency 
reserves prescribed in 5 CFR 890.503. OPM makes available or pays the 
amounts within 30 days of receipt by the EHB Fund.

[[Page 125]]

    (6) A carrier that is an employee organization must continue 
coverage, without requirement of membership, of any eligible survivor 
annuitants, former spouses continuing coverage with the carrier under 5 
CFR 890.803, children temporarily continuing coverage with the carrier 
under 5 CFR 890.1103(a)(2), or former spouses temporarily continuing 
coverage with the carrier under 5 CFR 890.1103(a)(3).
    (7) It must timely submit to OPM a properly completed and signed 
novation or change-of-name agreement in accordance with subpart 1642.12 
of this chapter.
    (b) In addition to the standards in paragraph (a) of this section, 
the carrier must perform the contract in accordance with prudent 
business practices. A carrier's sustained poor business practice in the 
management or administration of a health benefits plan is cause for 
OPM's withdrawal of approval of the health benefits carrier and 
termination of the carrier's contract. Prudent business practices 
include, but are not limited to, the following:
    (1) Timely compliance with OPM instructions and directives.
    (2) Legal and ethical business and health care practices.
    (3) Compliance with the terms of the FEHB contract, regulations and 
statutes.
    (4) Timely and accurate adjudication of claims or rendering of 
medical services.
    (5) A system for accounting for costs incurred under the contract, 
when required, which includes segregating and pricing FEHB medical 
utilization and allocating indirect and administrative costs in a 
reasonable and equitable manner.
    (6) Accurate accounting reports of actual, allowable, allocable, and 
reasonable costs incurred in the administration of the contract.
    (7) Application of performance standards for assuring contract 
quality as required by 1646.270(d).
    (8) Establishment and maintenance of a system of internal control 
that provides reasonable assurance that:
    (i) The provision and payments of benefits and other expenses are in 
compliance with legal, regulatory, and contractual guidelines;
    (ii) FEHB funds, property, and other assets are safeguarded against 
waste, loss, unauthorized use, or misappropriation; and,
    (iii) Data are accurately and fairly disclosed in all reports 
required by OPM.
    (c) The following types of activities are examples of poor business 
practices which adversely affect the health benefits carrier's 
responsibility under its contract. A pattern of poor conduct or evidence 
of misconduct in these areas is cause for OPM to withdraw approval of 
the carrier:
    (1) Presenting false claims by charging expenses to the contract 
which according to the contract terms are not chargeable to the 
contract;
    (2) Using fraudulent or unethical business or health care practices 
or otherwise displaying a lack of business integrity or honesty;
    (3) Repeatedly and knowingly providing false or misleading 
information in the rate setting process;
    (4) Repeated failure to comply with OPM instructions and directives;
    (5) Having an accounting system that is incapable of separately 
accounting for costs incurred under the contract and/or that lacks the 
internal controls necessary to fulfill the terms of the contract; and
    (6) Failure to assure that the plan provides properly paid or denied 
claims, or providing medical services which are inconsistent with 
standards of good medical practice.
    (7) Entering into contracts or employment agreements with providers, 
provider groups, or health care workers that include provisions or 
financial incentives that directly or indirectly create an inducement to 
limit or restrict communication about medically necessary services to 
any individual covered under the FEHB Program. Financial incentives are 
defined as bonuses, withholds, commissions, profit sharing or other 
similar adjustments to basic compensation (e.g., service fee, 
capitation, salary) which have the effect of limiting or reducing 
communication about appropriate medically necessary

[[Page 126]]

services. Providers, health care workers, or health plan sponsoring 
organizations are not required to discuss treatment options that they 
would not ordinarily discuss in their customary course of practice 
because such options are inconsistent with their professional judgment 
or ethical, moral or religious beliefs.
    (d) The Director or his or her designee will determine whether to 
propose withdrawal of approval and hold a hearing based on the 
seriousness of the carrier's actions and its proposed method to effect 
corrective action.

[57 FR 14359, Apr. 20, 1992. Redesignated and amended at 59 FR 14764, 
14765, Mar. 30, 1994; 63 FR 42586, Aug. 10, 1998]



                 Subpart 1609.71--Performance Evaluation

    Source: 63 FR 55337, Oct. 15, 1998, unless otherwise noted.



1609.7101  Policy.

    At the end of each contract period, the contracting officer will 
determine each community-rated carrier's responsiveness to the Program 
requirements in 1609.7101-1.



1609.7101-1  Community-rated carrier incentive performance elements.

    (a) Customer Service. This element is intended to assist OPM in 
achieving the goal of providing customer service that meets or exceeds 
the expectations of Federal enrollees. The Customer Service category 
will represent 70 percent of the total calculation and will be based on 
the carrier's compliance with the following items:
    (1) Timely Closure on Rates and Benefits Consistent with Policy 
Guidelines. In order for information to be available to our customers in 
time for the annual Open Season, carriers must work with OPM to conclude 
benefits and rate negotiations by the established time frames. The 
contracting officer will evaluate this item based on the carrier's 
demonstrated record in providing its rate reconciliation and benefits 
information within the time frames prescribed by and in the format 
required by OPM.
    (2) Customer Information. Enrollees must have accurate information 
and adequate time to make informed Open Season choices in selecting a 
health plan. In evaluating this item, the contracting officer will 
consider the carrier's timeliness and accuracy of information.
    (3) Meeting Customer Service Performance Standards. Compliance with 
this item is essential so that OPM can ensure that the carrier is 
providing quality health care and other services to enrollees. The 
contracting officer will evaluate this item based on the carrier's 
submission of the Consumer Assessment of Health Plans Study (CAHPS) 
survey results and other measures as required contractually between OPM 
and the carrier. (This element will be implemented beginning with 
contract year 2000).
    (4) Cooperation in Surveys. FEHB enrollees rely on feedback from the 
consumer assessment survey in selecting a health plan. The contracting 
officer will evaluate this item based on the carrier's record in 
cooperating with OPM and/or its designated representative in 
administering a consumer assessment survey or providing comparable 
survey results as specified in the FEHB contract and OPM guidance.
    (5) Paperless Enrollment/Enrollment Reconciliation--(i) Paperless 
Enrollment. The requirement to cooperate in the OPM designated system 
for paperless enrollment is under the section entitled ``Enrollment 
Instructions'' in the FEHB Supplemental Literature Guidelines in the 
FEHB contract. The contracting officer will evaluate this item based on 
the carrier's ability to accept electronic data transmission from the 
OPM designated electronic enrollment system and issue ID cards timely.
    (ii) Enrollment Reconciliation. The requirement for carriers to 
reconcile their enrollment records on a quarterly basis with those 
provided by Federal Government agencies is in the Records and 
Information to be Furnished by OPM clause of the contract, as well as 5 
CFR 890.110 and 5 CFR 890.308. The contracting officer will evaluate 
this item based on the carrier's demonstrated record of initiating 
reconciliation procedures with applicable agency payroll

[[Page 127]]

offices on a quarterly basis in accordance with OPM guidance on 
reconciling enrollments and resolving enrollment discrepancies, as well 
as on the carrier's demonstrated record of following disenrollment 
procedures in accordance with 5 CFR 890.110 and 890.308.
    (6) Reconsideration/Disputed Claims. The requirement for carriers to 
reconsider disputed health benefits claims is in 5 CFR 890.105. An 
incomplete explanation of denied benefits by the carrier places a burden 
on enrollees, causing them to seek reconsideration because the carrier 
did not fully explain its denial. Late carrier responses to OPM's 
requests for the carrier's reconsideration file delays OPM's response to 
enrollees. The contracting officer will evaluate this item based on 
whether the carrier provided OPM a complete reconciliation file within 
the time frame specified.
    (b) Critical Contract Compliance Requirements. This performance 
category will represent 30 percent of the total computation and will be 
based on the carrier's compliance with the following items:
    (1) Timely Submissions. The reports specified in the Statistics and 
Special Studies and FEHB Quality Assurance clauses of the contract and 
are essential for tracking enrollment, finances, rates, etc. In 
evaluating this item, the contracting officer will consider the 
carrier's timely submission of the contract, signed by the contracting 
official, to OPM, and on its demonstrated record in providing timely and 
accurate reports as required.
    (2) Notification of Changes in Contract Administrators. OPM must be 
able to reach the person responsible for managing the carrier's FEHB 
contract without delay when an enrollee calls OPM in need of urgent 
medical treatment, an ID card, or other service. Each carrier's 
designated contact must maintain telephone and electronic communications 
with OPM so that issues can be resolved quickly. The contracting officer 
will evaluate this item based on the carrier's compliance with the 
Notice clause and Contract Administration Data sheet in the contract, 
and will consider the carrier's record in notifying OPM promptly of 
changes in its carrier representative or contracting official, mailing 
or electronic address, telephone or FAX number.
    (3) Notification of Changes in Name or Ownership; or Transfer of 
Assets, and Notification of Other Significant Events. OPM must be able 
to assess the viability of the carrier and its ability to provide health 
care to enrollees so that they do not experience difficulty obtaining 
treatment and other services. Additionally, with regard to notification 
to OPM of other significant events, the carrier must notify OPM of such 
events as lawsuits, strikes, and natural disasters so that OPM can 
assess the carrier's ability to pay claims and provide services to 
enrollees. The contracting officer will evaluate this item based on the 
carrier's compliance with FEHBAR Subparts 1642.12, Novation and Change-
of-Name Agreements, 1642.70, Management Agreement (in Lieu of Novation 
Agreement), and 1652.222-70, including timely notification and 
explanation of all significant events that may have a material effect on 
the carrier's ability to perform the contract.

[[Page 128]]



1609.7101-2  Community-rated carrier performance factors.

    OPM will apply the Customer Service and Critical Contract Compliance 
Requirements percentage factors specified by the contracting officer 
when a community-rated carrier does not provide the information, 
payment, or service, perform the function, or otherwise meet its 
obligations as stated in 1609.7101-1. The total premium will be 
multiplied by the sum of all the factors and the resulting amount will 
be withheld from the carrier's periodic premium payments payable during 
the first quarter of the following contract period, unless an 
alternative payment arrangement is made with the carrier's contracting 
officer.
    The factors for each basic element are set forth as follows:

               Community-Rated Carrier Performance Factors
------------------------------------------------------------------------
                                                             Performance
                                                             factor (to
                                                                 be
                                                             multiplied
                          Element                            by premium
                                                            and withheld
                                                                from
                                                              carrier's
                                                              payments)
------------------------------------------------------------------------
I. Customer Service (70% of Total)........................          .007
II. Critical Contract Compliance Requirements (30% of               .003
 Total)...................................................
Maximum Aggregate Performance Factor......................          .01
------------------------------------------------------------------------


[[Page 129]]



          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES



PART 1614--SEALED BIDDING--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1614.000  Applicability.

    FAR part 14 has no practical application to FEHBP contracts in view 
of the statutory exemption provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]



PART 1615--CONTRACTING BY NEGOTIATION--Table of Contents




          Subpart 1615.1--General Requirements for Negotiation

Sec.
1615.170 Negotiation authority.

  Subpart 1615.4--Solicitations and Receipt of Proposals and Quotations

1615.401 Applicability.

                    Subpart 1615.6--Source Selection

1615.602 Applicability.

                    Subpart 1615.8--Price Negotiation

1615.802 Policy.
1615.804-70 Certificate of cost or pricing data for community rated 
          carriers.
1615.804-71 [Reserved]
1615.804-72 Rate reduction for defective pricing or defective cost or 
          pricing data.
1615.805-70 Carrier investment of FEHB funds.
1615.805-71 Investment income clause.

                         Subpart 1615.9--Profit

1615.902 Policy.
1615.905 Profit analysis factors.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16040, May 1, 1987, unless otherwise noted.



          Subpart 1615.1--General Requirements for Negotiation



1615.170  Negotiation authority.

    The authority to negotiate FEHBP contracts is conferred by 5 U.S.C. 
8902.



  Subpart 1615.4--Solicitations and Receipt of Proposals and Quotations



1615.401  Applicability.

    FAR subpart 15.4 has no practical application to the FEHBP because 
OPM does not issue solicitations. Eligible contractors (i.e., qualified 
health benefits carriers) are identified in accordance with 5 U.S.C. 
8903. Offerors voluntarily come forth in accordance with procedures 
provided in 5 CFR part 890.



                    Subpart 1615.6--Source Selection



1615.602  Applicability.

    FAR subpart 15.6 has no practical application to the FEHBP because 
prospective contractors (carriers) are considered for inclusion in the 
FEHBP in accordance with criteria provided in 5 U.S.C. chapter 89 and 5 
CFR part 890 rather than on the basis of competition between prospective 
carriers.



                    Subpart 1615.8--Price Negotiation



1615.802  Policy.

    Pricing of FEHB contracts is governed by 5 U.S.C. 8902(i), 5 U.S.C. 
8906, and other applicable law. FAR subpart 15.8 shall be implemented by 
applying the policies and procedures--to the extent practicable--as 
follows:
    (a) For both experience rated and community rated contracts for 
which the FEHBP premiums for the contract term will be less than 
$500,000, OPM shall not require the carrier to provide cost or pricing 
data in the rate proposal for the following contract term.
    (b) Cost analysis shall be used for contracts where premiums and 
subscription income are determined on the basis of experience rating.

[[Page 130]]

    (c)(1) A combination of cost and price analysis shall be used for 
contracts where premiums and subscription income are based on community 
rates. For contracts for which the FEHBP premiums for the contract term 
will be less than $500,000, OPM shall not require the carrier to provide 
cost or pricing data. The carrier must submit only a rate proposal and 
abbreviated utilization data for the applicable contract year. OPM will 
evaluate the proposed rates by performing a basic reasonableness test on 
the information submitted. Rates failing this test will be subject to 
further review.
    (2) For contracts with fewer than 1,500 enrollee contracts for which 
the FEHBP premiums for the contract term will be $500,000 or more, OPM 
shall require the carrier to submit its rate proposal, utilization data, 
and the certificate of accurate cost or pricing data required in 
1615.804-70. In addition, OPM shall require the carrier to complete the 
proposed rates form containing cost and pricing data, and the Community 
Rate Questionnaire, but shall not require the carrier to send these 
documents to OPM. The carrier shall keep the documents on file for 
periodic auditor and actuarial review in accordance with 1652.204-70. 
OPM shall perform a basic reasonableness test on the data submitted. 
Rates that do not pass this test shall be subject to further OPM review.
    (3) For contracts with 1,500 or more enrollee contracts for which 
the FEHBP premiums for the contract term will be at least $500,000, OPM 
shall require the carrier to provide the data and methodology used to 
determine the FEHBP rates. OPM shall also require the data and 
methodology used to determine the rates for the carrier's similarly 
sized subscriber groups. The carrier shall provide cost or pricing data 
required by OPM in its rate instructions for the applicable contract 
period. OPM shall evaluate the data to ensure that the rate is 
reasonable and consistent with the requirements in this chapter. If 
necessary, OPM may require the carrier to provide additional 
documentation.
    (4) Contracts shall be subject to a downward price adjustment if OPM 
determines that the Federal group was charged more than it would have 
been charged using a methodology consistent with that used for the 
SSSGs. Such adjustments shall be based on the lower of the two rates 
determined by using the methodology (including discounts) the Carrier 
used for the two SSSGs.
    (5) FEHBP community rated carriers shall comply with SSSG criteria 
provided by OPM in the rate instructions for the applicable contract 
period.
    (d) The application of FAR 15.802(b)(2) should not be construed to 
prohibit the consideration of preceding year surpluses or deficits in 
carrier-held reserves in the rate adjustments for subsequent year 
renewals of contracts based, in whole or in part, on cost analysis.
    (e) Exceptions for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Similarly sized subscriber group (SSSG) rating methodologies 
will not be used to determine the reasonableness of a community-rated 
carrier's demonstration project premium rates. Carrier premium rates 
will not be adjusted for equivalency with SSSG rating methodologies. 
Carriers will benchmark premiums against adjusted community rates if 
available, Medigap offerings, or other similar products.
    (2) Community-rated carriers must propose premium rates with cost or 
pricing data and rating methodology, and experience-rated carriers must 
propose premium rates with cost data and rating methodology regardless 
of group size or annual premiums.

[62 FR 47574, Sept. 10, 1997, as amended at 64 FR 36272, July 6, 1999; 
65 FR 36386, June 8, 2000]



1615.804-70  Certificate of cost or pricing data for community rated carriers.

    The contracting officer shall require a carrier with a contract 
meeting the requirements in 1615.802(c)(2) or 1615.802(c)(3) to execute 
the Certificate of Accurate Cost or Pricing Data contained in this 
section. A carrier with a contract meeting the requirements in 
1615.802(c)(2) shall complete the Certificate and keep it on file at the 
carrier's place of business in accordance with 1652.204-70. A carrier 
with a contract meeting the requirements in

[[Page 131]]

1615.802(c)(3) shall submit the Certificate to OPM along with its rate 
reconciliation, which is submitted during the first quarter of the 
applicable contract year.

    Certificate of Accurate Cost or Pricing Data for Community Rated 
                                Carriers

    This is to certify that, to the best of my knowledge and belief: (1) 
The cost or pricing data submitted (or, if not submitted, maintained and 
identified by the carrier as supporting documentation) to the 
Contracting Officer or the Contracting Officer's representative or 
designee, in support of the ----------* FEHBP rates were developed in 
accordance with the requirements of 48 CFR Chapter 16 and the FEHBP 
contract and are accurate, complete, and current as of the date this 
certificate is executed; and (2) the methodology used to determine the 
FEHBP rates is consistent with the methodology used to determine the 
rates for the carrier's Similarly Sized Subscriber Groups.
Firm:___________________________________________________________________
Name:___________________________________________________________________
Signature:______________________________________________________________
Date of Execution:______________________________________________________
    * Insert the year for which the rates apply. Normally, this will be 
the year for which the rates are being reconciled.

(End of Certificate)

[62 FR 47575, Sept. 10, 1997]



1615.804-71  [Reserved]



1615.804-72  Rate reduction for defective pricing or defective cost or pricing data.

    The clause set forth in section 1652.215-70 shall be inserted in 
FEHBP contracts for $500,000 or more that are based on a combination of 
cost and price analysis (community rated).

[62 FR 47575, Sept. 10, 1997]



1615.805-70  Carrier investment of FEHB funds.

    (a) This paragraph does not apply to contracts based on a 
combination of cost and price analysis (community rated).
    (b) The carrier is required to invest and reinvest all funds on 
hand, including any attributable to the special reserve or the reserve 
for incurred but unpaid claims, exceeding the funds needed to discharge 
promptly the obligations incurred under the contract.
    (c) The carrier is required to credit income earned from its 
investment of FEHB funds to the special reserve on behalf of the FEHB 
Program. If a carrier fails to invest excess FEHB funds or to credit any 
income due the contract, for whatever reason, it shall return or credit 
any investment income lost to OPM or the special reserve.
    (d) Investment income. Investment income is the net amount earned by 
the carrier after deducting investment expenses.

[52 FR 16040, May 1, 1987, as amended at 55 FR 27415, July 2, 1990; 62 
FR 47575, Sept. 10, 1997]



1615.805-71  Investment income clause.

    The clause set forth in 1652.215-71 shall be inserted in all 
contracts based on cost analysis.



                         Subpart 1615.9--Profit



1615.902  Policy.

    (a) OPM will determine the profit or fee prenegotiation objective 
(service charge) portion of FEHBP contracts by use of a weighted 
guidelines structured approach when the pricing of such contracts is 
determined by cost analysis. The service charge so determined shall be 
the total service charge that may be negotiated for the contract and 
shall encompass any service charge (whether entitled service charge, 
profit, fee, contribution to reserves or surpluses, or any other title) 
that may have been negotiated by the prime contractor with any 
subcontractor or underwriter.
    (b) OPM will not guarantee a minimum service charge.



1615.905  Profit analysis factors.

    (a) OPM contracting officers will apply a weighted guidelines method 
in developing the service charge prenegotiation objective for FEHBP 
contracts. The following factors as defined in FAR 15.905-1 will be 
applied to projected incurred claims and allowable administrative 
expenses:
    (1) Contractor performance. OPM will consider such elements as the 
accurate and timely processing of benefit claims and the volume and 
validity of disputed claims as measures of economical and efficient 
contract performance. This factor will be judged apart from the 
contractor's basic responsibility for

[[Page 132]]

contract performance and will be a measure of the extent and nature of 
the contractor's contribution to the FEHBP through the application of 
managerial expertise and effort. Evidence of effective contract 
performance will receive a plus weight, and poor performance or failure 
to comply with contract terms and conditions a negative weight. 
Innovations of benefit to the FEHBP generally a plus weight, documented 
inattention or indifference to cost control a negative weight.
    (2) Contract cost risk. OPM will consider such underwriting elements 
as the availability of margins, group size, enrollment demographics and 
fluctuation, and the probability of conversion and adverse selection, as 
well as the extent of financial assistance the carrier renders to the 
contract, in assessing the degree of cost responsibility and associated 
risk assumed by the contractor as a factor in negotiating profit. It 
should be noted that the ``loss carry forward basis'' of experience 
rated group insurance practices limits this factor in an overall 
determination of profit. This factor is intended to provide profit 
opportunities commensurate with the contractor's share of cost risks 
only, taking into account such elements as the adequacy and reliability 
of data for estimating costs, etc., offset by the ``loss carry forward 
basis'' of experience rating.
    (3) Federal socioeconomic programs. OPM will consider documented 
evidence of successful, contractor-initiated efforts to support such 
Federal socioeconomic programs as drug and substance abuse deterrents, 
and other concerns of the type enumerated in FAR 15.905-1(c) as a factor 
in negotiating profit. This factor will be related to the quality of the 
contractor's policies and procedures and the extent of unusual effort or 
achievement demonstrated. Evidence of effective support of Federal 
socioeconomic programs will receive a plus weight; poor support will 
receive a negative weight.
    (4) Capital investments. This factor is generally not applicable to 
FEHBP contracts because facilities capital cost of money may be an 
allowable administrative expense. Generally, this factor shall be given 
a weight of zero. However, special purpose facilities or investments 
costs of direct benefit to the FEHBP that are not recoverable as 
allowable or allocable administrative expenses may be taken into account 
in assigning a plus weight.
    (5) Cost control. OPM will consider contractor-initiated efforts 
such as improved benefit design, cost-sharing features, innovative peer 
review, or other professional cost containment efforts as a factor in 
negotiating profit. This factor shall be used to reward contractors with 
additional profit opportunities for self-initiated efforts to control 
contract costs.
    (6) Independent development. OPM will consider any profit 
opportunities that may be directly related to relevant independent 
efforts such as the development of a unique and enhanced customer 
support system that is of demonstrated value to the FEHBP and for which 
developmental costs have not been recovered directly or indirectly 
through allowable administrative expenses. This factor will be used to 
provide additional profit opportunities based upon an assessment of the 
contractor's investment and risk in developing techniques, methods, 
practices, etc., having viability to the program at large. Improvements 
and innovations recognized and rewarded under any of the other profit 
factors cannot be considered.
    (b) The weight ranges for each factor to be used in the weighted 
guidelines approach are set forth below:

------------------------------------------------------------------------
               Profit factor                   Weight ranges (percent)
------------------------------------------------------------------------
1. Contractor performance.................  -.2 to +.45.
2. Contract cost risk*....................  +.02 to +.2.
3. Federal socioeconomic programs.........  -.05 to +.05.
4. Capital investments....................  0 to +.02.
5. Cost control...........................  0 to +.35.
6. Independent development................  0 to +.03.
------------------------------------------------------------------------
*The contract cost risk factor is subdivided into two parts: group size
  (.02 to .10) and other risk elements (0 to .10). With respect to the
  group size element, subweights should be assigned as follows:


 
                Enrollment                        Weight (percent)
 
  10,000 or less..........................  .06 to .10.
  10,001-50,000...........................  .05 to .09.
  50,001-200,000..........................  .04 to .07.
  200,001-500,000.........................  .03 to .06.
  500,001 and over........................  .02 to .04.
 


[[Page 133]]



PART 1616--TYPES OF CONTRACTS--Table of Contents




                Subpart 1616.1--Selecting Contract Types

Sec.
1616.102 Policies.
1616.105 Solicitation provision.

             Subpart 1616.70--Negotiated Benefits Contracts

1616.7001 Clause--contracts based on a combination of cost and price 
          analysis (community rated).
1616.7002 Clause--contracts based on cost analysis (experience rated).

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.



                Subpart 1616.1--Selecting Contract Types



1616.102  Policies.

    All FEHBP contracts shall be negotiated benefits contracts.

[62 FR 47575, Sept. 10, 1997]



1616.105  Solicitation provision.

    FAR 16.105 has no practical application because the statutory 
provisions of 5 U.S.C. chapter 89 obviate the issuance of solicitations.



             Subpart 1616.70--Negotiated Benefits Contracts

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



1616.7001  Clause--contracts based on a combination of cost and price analysis (community rated).

    The clause at section 1652.216-70 shall be inserted in all FEHBP 
contracts based on a combination of cost and price analysis (community 
rated).



1616.7002  Clause--contracts based on cost analysis (experience rated).

    The clause at section 1652.216-71 shall be inserted in all FEHBP 
contracts based on cost analysis (experience rated).

[[Page 134]]



                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS



PART 1622--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS--Table of Contents






                  Subpart 1622.1--Basic Labor Policies

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1622.103-70  Contract clause.

    The clause at 1652.222-70 shall be inserted in all FEHBP contracts.

[55 FR 27415, July 2, 1990]



PART 1624--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--Table of Contents




            Subpart 1624.1--Protection of Individual Privacy

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1624.104  Contract clause.

    Records retained by FEHBP carriers on Federal subscribers and 
members of their families serve the carriers' own commercial function of 
paying health benefits claims and are not maintained to accomplish an 
agency function of OPM. Consequently, the records do not fall within the 
provisions of the Privacy Act. Nevertheless, OPM recognizes the need for 
carriers to keep certain records confidential. The clause at 1652.224-70 
shall be inserted in all FEHBP contracts.

[52 FR 16041, May 1, 1987]

[[Page 135]]



             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS



PART 1629--TAXES--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



                    Subpart 1629.4--Contract Clauses



1629.402  Foreign contracts.

    The clause set forth in section 1652.229-70 shall be inserted in all 
FEHBP contracts performed outside the United States, its possessions, 
and Puerto Rico.



PART 1631--CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents




         Subpart 1631.2--Contracts With Commercial Organizations

Sec.
1631.200 Scope of subpart.
1631.201-70 FEHBP credits.
1631.203-70 FEHBP General and Administrative (G&A) expenses.
1631.205 Selected costs.
1631.205-41 Taxes.
1631.205-70 FEHBP public relations and advertising costs.
1631.205-71 FEHBP bad debts.
1631.205-72 FEHBP compensation for personal services.
1631.205-73 FEHBP interest expense.
1631.205-74 FEHBP losses on other contracts.
1631.205-75 Selling costs.
1631.205-76 Trade, business, technical and professional activity costs.
1631.205-77 FEHBP start-up and other nonrecurring costs.
1631.205-78 FEHBP printed material costs.
1631.205-79 Mandatory statutory reserves.
1631.205-80 Major subcontractor service charges.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.



         Subpart 1631.2--Contracts With Commercial Organizations



1631.200  Scope of subpart.

    The cost principles under this subpart apply only to contracts in 
which premiums and subscription income are determined on the basis of 
experience rating, in which cost analysis is performed, or in which 
price is determined on the basis of actual costs incurred.



1631.201-70  FEHBP credits.

    The provisions of FAR 31.201-5 shall apply to income, rebates, 
allowances, and other credits resulting from benefit payments that 
include, but are not limited to--
    (a) Coordination of benefit refunds;
    (b) Hospital year-end settlements;
    (c) Uncashed and returned checks;
    (d) Utilization review refunds;
    (e) Refunds attributable to litigation with subscribers or providers 
of health services; and
    (f) Erroneous benefit payment, overpayment, and duplicate payment 
recoveries.



1631.203-70  FEHBP General and Administrative (G&A) expenses.

    The provisions of FAR 31.203 apply to the allocation of indirect 
costs by means of a ``dividend or retention formula.''



1631.205  Selected costs.



1631.205-41  Taxes.

    5 U.S.C. 8909(f)(1) prohibits the imposition of taxes, fees, or 
other monetary payment, directly or indirectly, on FEHB premiums by any 
State, the District of Columbia, or the Commonwealth of Puerto Rico, or 
by any political subdivision or other governmental authority of those 
entities. Therefore, FAR 31.205-41 is modified to include those taxes as 
unallowable costs. The prohibited payments, referred to elsewhere in 
these regulations as ``premium taxes,'' applies to all payments directed 
by States or municipalities, regardless of how they may be titled, to 
whom they must be paid, or the purpose for which they are collected, and 
it applies to all forms of direct and indirect measurements on FEHBP 
premiums, however modified, to include cost per contract or enrollee, 
with the sole exception of a tax on net income or profit, if that tax, 
fee, or payment is

[[Page 136]]

applicable to a broad range of business activity.

[56 FR 57496, Nov. 12, 1991]



1631.205-70  FEHBP public relations and advertising costs.

    (a) The cost of media messages that are directed at advising current 
FEHBP subscribers on how to obtain benefits shall be an allowable 
expense within the meaning of FAR 31.205-1 because this service is 
directly related to performance of the FEHBP contract. If there is any 
question about the allowability of such a cost, the carrier may request 
advance approval regarding the content and cost of the message.
    (b) Costs of media messages not provided for in paragraph (a) of 
this section are allowable if the content is specifically approved by 
the contracting officer and all of the following criteria are met:
    (1) The primary effect of the message is to disseminate information 
on health care cost containment or preventive health care;
    (2) The costs of the carrier's messages are allocated to all 
underwritten and non-underwritten lines of business; and
    (3) The contracting officer approves the total dollar amount of the 
carrier's messages to be charged to the FEHBP in advance of the contract 
year.
    (c) Costs of messages that are intended to, or which have the 
primary effect of, calling favorable attention to the carrier (or 
subcontractor) for the purpose of enhancing its overall image or selling 
its health plan are not allowable.



1631.205-71  FEHBP bad debts.

    Erroneous benefit payments are not automatically disallowed by FAR 
31.205-3.



1631.205-72  FEHBP compensation for personal services.

    Overtime on an FEHBP contract would normally meet the condition 
specified in FAR 22.103. Premiums for overtime, extra-pay shifts, and 
multi-shifts meeting the specified conditions shall be allowed without 
prior approval.



1631.205-73  FEHBP interest expense.

    (a) Interest charges incurred in the administration of FEHBP 
contracts are not allowable in accordance with FAR 31.205-20. However, 
interest charges that are associated with the carrier's investment of 
FEHBP account funds are not considered administrative costs and may be 
allowable under very limited circumstances if all of the following 
criteria are met:
    (1) Borrowing is limited to the positive balance of the carrier's 
entire FEHBP investment portfolio;
    (2) FEHBP funds are tied up in long-term securities;
    (3) Liquidation of long-term securities would cost more than the 
cost of the interest;
    (4) The interest rates charged are at or below current market rates; 
and
    (5) Advance written approval of the contracting officer is obtained 
before such costs are incurred.
    (b) The carrier must demonstrate on a case-by-case basis that 
borrowing rather than cashing in long-term investments shall actually 
result in cost savings to the FEHB Program. Satisfactory demonstration 
of cost savings is a prerequisite to contracting officer approval of the 
interest cost as a charge to the contract.
    (c) If the interest charge is allowed, the risk factor in the 
service charge will be adjusted downward so that the carrier does not 
recover interest costs through both the service charge and an allowance 
under this paragraph.



1631.205-74  FEHBP losses on other contracts.

    FAR 31.205-23 shall not be construed to prohibit the application of 
the normal ``loss carry forward'' principle that is fundamental to 
continuing insurance contracts that are based on experience rating.



1631.205-75  Selling costs.

    (a) FAR 31.205-38 is modified to eliminate from allowable costs 
those costs related to sales promotion and the payment of sales 
commissions fees or salaries to employees or outside commercial or 
selling agencies for enrolling Federal subscribers in a particular FEHB 
plan.

[[Page 137]]

    (b) Selling costs are allowable costs to FEHBP contracts to the 
extent that they are necessary for conducting annual contract 
negotiations with the Government and for liaison activities necessary 
for ongoing contract administration. Personnel and related travel costs 
are allowable for attendance at Open Season Health fairs and other 
similar activities at which carriers give enrollees information about 
their choices among health plans (but see FAR 31.205-1 `Public relations 
and advertising costs', and The Federal Employees Health Benefits 
Handbook for Personnel and Payroll Offices, Subchapter S2-3(f) 
`Controlling contacts between employees and carriers').

[52 FR 16041, May 1, 1987, as amended at 62 FR 47575, Sept. 10, 1997]



1631.205-76  Trade, business, technical, and professional activity costs.

    (a) FEHBP participating plans, carriers, and underwriters shall seek 
the advance written approval of the contracting officer for allowability 
of all or part of the costs associated with trade, business, technical, 
and professional activities (FAR 31.205-43) when the allocable costs of 
such participation to the FEHBP will exceed $1,000 annually and when the 
carrier or underwriter allocates more than 50% of the membership cost of 
a trade, business, technical, or professional organization to the FEHBP.
    (b) When approval of costs for membership in an organization is 
required, the carrier or underwriter must demonstrate conclusively that 
membership in such an organization and participation in its activities 
extend beyond the contractual relationship with OPM, have a reasonable 
relationship to providing care and services to FEHBP enrollees, and that 
the organization is not engaged in activities such as those cited in FAR 
31.205-22 (lobbying costs) for which costs are not allowable.



1631.205-77  FEHBP start-up and other nonrecurring costs.

    Precontract costs (FAR 31.205-32) shall be allowed only to the 
extent provided for by advance agreement in accordance with FAR 31.109.



1631.205-78  FEHBP printed material costs.

    Unless OPM determines that it is in the best interest of the FEHBP 
to do otherwise, if a carrier orders printed material that is available 
from the Government Printing Office (GPO) under the ``rider system'' 
from another source, the allowable contract charges shall be the lesser 
of the amount actually paid or the cost that would have been incurred 
had the carrier ridden OPM's GPO order.



1631.205-79  Mandatory statutory reserves.

    Charges for mandatory statutory reserves are not allowed unless 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
carrier, a pro rata share based upon FEHBP's contribution to the total 
carrier's set aside shall be returned to the FEHBP in accordance with 
FAR 31.201-5.



1631.205-80  Major subcontractor service charges.

    In a subcontract for enrollment and eligibility determinations, 
administration of claims and payment of benefits, and payment or 
provision of actual health services, and/or assumption of insurance risk 
or underwriting, when costs are determined on the basis of actual costs 
incurred or experience rating, any amount that exceeds the allowable 
cost of the subcontract (whether entitled service charge, profit, fee, 
contribution to reserve, surplus, or any other title) is not allowable 
under the

[[Page 138]]

contract. Amounts which exceed allowable costs may be paid to a major 
subcontractor only from the service charge negotiated between OPM and 
the Carrier.



PART 1632--CONTRACT FINANCING--Table of Contents




                         Subpart 1632.1--General

Sec.
1632.170 Recurring premium payments to carriers.
1632.171 Clause--community-rated contracts.
1632.172 Clause--experience-rated contracts.

                     Subpart 1632.6--Contract Debts

1632.607 Tax credit.
1632.617 Contract clause.

                    Subpart 1632.7--Contract Funding

1632.770 Contingency reserve payments.
1632.771 Non-commingling of FEHBP funds.
1632.772 Contract clause.

                  Subpart 1632.8--Assignment of Claims

1632.806-70 Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.



                         Subpart 1632.1--General



1632.170  Recurring premium payments to carriers.

    (a)(1) Recurring payments to carriers of community-rated plans. OPM 
will pay to carriers of community-rated plans the premium payments 
received for the plan less the amounts credited to the contingency and 
administrative reserves, amounts assessed under paragraph (a)(2) of this 
section, and amounts due for other contractual obligations. Premium 
payments will be due and payable not later than 30 days after receipt by 
the Federal Employees Health Benefits (FEHB) Fund.
    (2) The sum of the two performance factors applicable under 
1609.7101-2 will be multiplied by the carrier's total net-to-carrier 
premium dollars paid for the preceding contract period. The amount 
obtained after the total premium is multiplied by the sum of the factors 
will be withheld from the carrier's periodic premium payment payable 
during the first quarter of the following contract period unless an 
alternative payment arrangement is made with the carrier's contracting 
officer. OPM will deposit the withheld funds in the carrier's 
contingency reserve for the plan. The aggregate amount withheld annually 
for performance for any carrier will not exceed one percent of premium 
for any contract period.
    (b)(1) Recurring payments to carriers of experience-rated plans. OPM 
will make payments on a letter of credit (LOC) basis. Premium payments 
received for the plan, less the amounts credited to the contingency and 
administrative reserves and amounts for other obligations due under the 
contract, will be made available for carrier drawdown not later than 30 
days after receipt by the FEHB Fund.
    (2) Withdrawals from the LOC account will be made on a checks-
presented basis. Under a checks-presented basis, drawdown on the LOC is 
delayed until the checks issued for FEHB Program disbursements are 
presented to the carrier's bank for payment.
    (3) OPM may grant a waiver of the restriction of LOC disbursements 
to a checks-presented basis if the carrier requests the waiver in 
writing and demonstrates to OPM's satisfaction that the checks-presented 
basis of LOC disbursements will result in significantly increased 
liability under the contract, or that the checks-presented basis of LOC 
disbursements is otherwise clearly and significantly detrimental to the 
operation of the plan. Payments to carriers that have been granted a 
waiver may be made by an alternative payment methodology, subject to OPM 
approval.
    (c) Exceptions for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Carriers will create and maintain separate risk pools for 
demonstration project experience and regular FEHB experience for the 
purpose of establishing separate premium rates.
    (2) OPM will create and maintain a demonstration project Contingency 
Reserve separate from the regular FEHB Contingency Reserve for each 
carrier participating in the demonstration project.

[[Page 139]]

    (3) Carriers will account separately for health benefits charges 
paid using demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
will be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity.
    (4) The same percentage used to determine indirect cost allocation 
will also be used to determine the amount of an experience-rated 
carrier's service charge that will be allocated to the demonstration 
project.
    (5) Experience-rated carriers participating in the demonstration 
project will draw funds from their Letter of Credit (LOC) account to pay 
demonstration project benefits costs in the same manner as they do for 
benefits costs incurred by regular FEHB members.
    (6) Carriers will report on demonstration project revenues, health 
benefits charges, and administrative expenses as directed by OPM.
    (7) Experience-rated carriers will perform a final reconciliation of 
revenue and costs for the demonstration group at the end of the 
demonstration project. OPM will reimburse carrier costs in excess of the 
premiums first from the carrier's demonstration project Contingency 
Reserve and then from the Employees Health Benefits Fund Administrative 
Reserve. After the final accounting, OPM will place any surplus 
demonstration project premiums in the regular Contingency Reserves of 
all carriers continuing in the FEHB Program for the contract year 
following the year in which the demonstration project ends. Credit will 
be in proportion to the amount of subscription charges paid and accrued 
to each carrier's plan for the last year of the demonstration project.
    (8) Community-rated carriers may, at their discretion, request funds 
from the Employees Health Benefits Fund to mitigate excessive costs in 
relation to premiums. If a community-rated carrier requests funds from 
the Employees Health Benefits Fund to mitigate risk, it will be required 
to perform annual reconciliations for the duration of the demonstration 
project. OPM will reimburse carrier costs significantly in excess of the 
premiums first from the carrier's demonstration project Contingency 
Reserve and then from the Employees Health Benefits Fund Administrative 
Reserve. After the final accounting, OPM will place any surplus 
demonstration project premiums in the regular Contingency Reserves of 
all carriers continuing in the FEHB Program for the contract year 
following the year in which the demonstration project ends. Credit will 
be in proportion to the amount of subscription charges paid and accrued 
to each carrier's plan for the last year of the demonstration project.
    (9) Should the program be extended beyond the 3 year demonstration 
project period, OPM will regulate to address any necessary changes to 
these provisions.

[57 FR 14360, Apr. 20, 1992, as amended at 63 FR 55338, Oct. 15, 1998; 
64 FR 36272, July 6, 1999; 65 FR 36386, June 8, 2000]



1632.171  Clause--community-rated contracts.

    The clause at 1652.232-70 shall be inserted in all community-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]



1632.172  Clause--experience-rated contracts.

    The clause at 1652.232-71 shall be inserted in all experience-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]



                     Subpart 1632.6--Contract Debts



1632.607  Tax credit.

    FAR 32.607 has no practical application to FEHBP contracts. The 
statutory provisions at 5 U.S.C. 8906(c) and (d) authorize joint 
enrollee and Government contributions to the FEHBP Fund. Because the 
Fund is comprised of contributions by enrollees as well as the 
Government, carriers may not offset debts to the Fund by a tax credit

[[Page 140]]

which is solely a Government obligation.



1632.617  Contract clause.

    The clause at (FAR) 48 CFR 52.232-17 will be modified in all FEHBP 
contracts to exclude the words ``net of any applicable tax credit under 
the Internal Revenue Code (26 U.S.C. 1481).''

[59 FR 14765, Mar. 30, 1994]



                    Subpart 1632.7--Contract Funding



1632.770  Contingency reserve payments.

    (a) Payments from the contingency reserve shall be made in 
accordance with 5 CFR 890.503.
    (b) A carrier for an FEHB plan may apply to OPM at any time for a 
payment from the contingency reserve that is in addition to those 
amounts, if any, paid under 5 CFR 890.503(c)(1) through (c)(4), if the 
carrier can show good cause, such as, unexpected adverse claims 
experience. OPM will decide whether to allow the request in whole or in 
part and will advise the carrier of its decision. However, OPM shall not 
unreasonably withhold approval for amounts requested that exceed the 
plan's preferred minimum balance for the contingency reserve.



1632.771  Non-commingling of FEHBP funds.

    (a) This section applies to contracts based on cost analysis.
    (b) Carrier or underwriter commingling of FEHBP funds with those 
from other sources makes it difficult to precisely determine FEHBP cash 
balances at any given time or to precisely determine investment income 
attributable to FEHBP invested assets.
    (c) FEHBP funds shall be maintained separately from other cash and 
investments of the carrier or underwriter. Cash and investment balances 
reported on FEHBP Annual Accounting Statements must agree with the 
carrier's books and records.
    (d) This requirement may be waived by the contracting officer in 
accordance with the clause at 1652.232-70 when adequate accounting and 
other controls are in effect. If the requirement is waived, the waiver 
will remain in effect until it is withdrawn by OPM. The waiver shall be 
withdrawn if OPM determines that the accounting controls are no longer 
adequate to properly account for FEHBP funds.



1632.772  Contract clause.

    The clause at 1652.232-70 shall be included in all contracts that 
are based on cost analysis.



                  Subpart 1632.8--Assignment of Claims



1632.806-70  Contract clause.

    The clause set forth in 1652.232-73 shall be inserted in all FEHBP 
contracts.

[55 FR 27415, July 2, 1990]



PART 1633--PROTESTS, DISPUTES, AND APPEALS--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1633.070  Designation of the Board of Contract Appeals.

    The Armed Services Board of Contract Appeals (ASBCA) serves as the 
Board of Contract Appeals for the FEHBP. The rules of procedure followed 
in a dispute shall be those prescribed by the ASBCA.

[52 FR 16043, May 1, 1987]

[[Page 141]]



                    SUBCHAPTER G--CONTRACT MANAGEMENT



PART 1642--CONTRACT ADMINISTRATION--Table of Contents




         Subpart 1642.12--Novation and Change-of-Name Agreements

Sec.
1642.1201 Definitions.
1642.1204 Agreement to recognize a successor in interest (novation 
          agreement).
1642.1205 Agreement to recognize carrier's change of name.

  Subpart 1642.70--Management Agreement (in Lieu of Novation Agreement)

1642.7001 Management agreement.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 59 FR 14765, Mar. 30, 1994, unless otherwise noted.



         Subpart 1642.12--Novation and Change-of-Name Agreements



1642.1201  Definitions.

    The definitions at (FAR) 48 CFR 42.1201 shall have the same meaning 
for this subpart.



1642.1204  Agreement to recognize a successor in interest (novation agreement).

    (a) (FAR) 48 CFR 42.1204 shall be implemented as provided in this 
section. The contracting officer shall insert the following agreement in 
all FEHBP contracts for use when the contractor's assets or the entire 
portion of the assets pertinent to the performance of the contract, as 
determined by the Government, are transferred.

                           Novation Agreement

    The (insert corporate name) (Transferor), a corporation duly 
organized and existing under the laws of (insert State) with its 
principal office in (insert city, state); the (insert corporate name) 
(Transferee), (if appropriate add ``formerly known as the ------ 
Corporation'') a corporation duly organized and existing under the laws 
of (insert State) with its principal office in (insert city); and the 
UNITED STATES OF AMERICA (Government) enter into this Agreement 
effective (insert date transfer of assets became effective under 
applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number ------ with the Transferor. The term contracts, as used in this 
Agreement, means the contract cited in this paragraph and all other 
contracts and purchase orders, including any and all amendments and 
modifications made between the Government and the Transferor before the 
effective date of this Agreement (whether or not performance and payment 
have been completed and releases executed if the Government or the 
Transferor has any remaining rights, duties, or obligations under these 
contracts and purchase orders).
    (2) As of ---- 19-- (insert date transfer of assets became effective 
under applicable State law), the Transferor has transferred to the 
Transferee all the assets of the Transferor, or the entire portion of 
the Transferor's assets pertinent to performing the contract, as 
determined by OPM, by virtue of a(an) (insert term describing the legal 
transaction involved) between the Transferor and the Transferee.
    (3) The Transferee has acquired all the assets of the Transferor, or 
the entire portion of the Transferor's assets pertinent to performing 
the contract, as determined by OPM, by virtue of the transfer in 
paragraph (a)(1).
    (4) The Transferee has assumed all obligations and liabilities of 
the Transferor pertinent to performing the contract, as determined by 
OPM, by virtue of the transfer in paragraph (a)(1).
    (5) The Transferee is in a position to fully perform all obligations 
that may exist under the contract.
    (6) It is consistent with the Government's interest to recognize the 
Transferee as the successor party to the contract.
    (7) Evidence of the transfer in paragraph (a)(1) has been filed with 
the Government.
    (8) [If applicable:] A certificate dated ----, 19--, signed by the 
Secretary of State of (insert State), to the effect that the corporate 
name of (insert old corporate name) was changed to (insert new corporate 
name) on ----, 19--, has been filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT BY THIS 
AGREEMENT--
    (1) The Transferor confirms the transfer to the Transferee, and 
waives any claims and rights against the Government or the Federal 
Employees Health Benefits Fund that it now has or may have in the future 
in connection with the contract.

[[Page 142]]

    (2) The Transferee agrees to be bound by and to perform the contract 
in accordance with the conditions contained in the contract. The 
Transferee also assumes all obligations and liabilities of, and all 
claims against, the Transferor pertinent to the contract, as determined 
by OPM, as if the Transferee were the original party to the contract.
    (3) The Transferee ratifies all previous actions taken by the 
Transferor with respect to the contract, with the same force and effect 
as if the action had been taken by the Transferee.
    (4) The Government recognizes the Transferee as the Transferor's 
successor in interest in and to the contract. The Transferee by this 
Agreement becomes entitled to all rights, titles, and interests of the 
Transferor in and to the contract as if the Transferee were the original 
party to the contract. Following the effective date of this Agreement, 
the terms Carrier and Contractor as used in the contract, shall refer to 
the Transferee.
    (5) Except as expressly provided in this Agreement, nothing in it 
shall be construed as a waiver of any rights of the Government against 
the Transferor.
    (6) All payments and reimbursements previously made by the 
Government to the Transferor, and all other previous actions taken by 
the Government under the contract, shall be considered to have 
discharged those parts of the Government's obligations under the 
contract. All payments and reimbursements made by the Government after 
the date of this Agreement in the name of or to the Transferor shall 
have the same force and effect as if made to the Transferee, and shall 
constitute a complete discharge of the Government's obligations under 
the contract, to the extent of the amounts paid or reimbursed.
    (7) The Transferor and the Transferee agree that the Government is 
not obligated to pay or reimburse either of them for, or otherwise give 
effect to, any costs, taxes, or other expenses, or any related 
increases, directly or indirectly arising out of or resulting from the 
transfer of this Agreement, other than those that the Government in the 
absence of this transfer or Agreement would have been obligated to pay 
or reimburse under the terms of the contract.
    (8) The Transferor guarantees payment of all liabilities and the 
performance of all obligations that the Transferee (i) assumes under 
this Agreement or (ii) may undertake in the future should this contract 
be modified under its terms and conditions. The Transferor waives notice 
of, and consents to, any such future modifications.
    (9) The contract shall remain in full force and effect, except as 
modified by this Agreement. Each party has executed this Agreement 
effective (insert the date transfer of assets became effective under 
applicable State law).

UNITED STATES OF AMERICA,
By ---------- Date----------
Title ----------

    (Enter Transferor's name)

By ---------- Date----------
    Title ----------

    (Corporate Seal)

    (Enter Transferee's name)

By ----------
Title ----------

    (Corporate Seal)

                               Certificate

    I, ------, certify that I am the Secretary of (insert name of 
Transferor); that ------, who signed this Agreement for this 
corporation, was then ------ of this corporation; and that this 
Agreement was duly signed for and on behalf of this corporation by 
authority of its governing body and within the scope of its corporate 
powers.
    Witness my hand and the seal of this corporation this ------ day of 
------, 19----.

By ----------
    (Corporate Seal)

                               Certificate

    I, ------, certify that I am the Secretary of (insert name of 
Transferee); that ------, who signed this Agreement for this 
corporation, was then ------ of this corporation; and that this 
Agreement was duly signed for and on behalf of this corporation by 
authority of its governing body and within the scope of its corporate 
powers.
    Witness my hand and the seal of this corporation this ------ day of 
------ 19--,

By______________________________________________________________________
    (Corporate Seal)

    (End of Agreement)

    (b) Failure to submit the properly completed and signed Novation 
Agreement in a timely manner shall be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.
    (c) The Contracting Officer shall terminate the contract if it is 
determined not to be in the Government's interest to recognize a 
successor in interest to the contract. The effective date will be 
decided by the Contracting Officer after considering the best interests 
of FEHBP enrollees.

[[Page 143]]



1642.1205  Agreement to recognize carrier's change of name.

    (a) (FAR) 42.1205 shall be implemented as provided in this section. 
The Contracting Officer shall insert the following Agreement in all 
FEHBP contracts for use when the carrier changes its name and the 
Government's and contractor's rights and obligations remain unaffected.

                        Change-of-Name Agreement

    The (insert new Carrier name), a corporation duly organized and 
existing under the laws of (insert State), and the UNITED STATES OF 
AMERICA (Government), enter into this Agreement effective (insert date 
when the change of name became effective under applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number ------ with the (insert old Carrier name). The term contracts as 
used in this Agreement means the contract cited in this paragraph and 
all other contracts and purchase orders and all modifications thereto 
made by the Government and the Contractor before the effective date of 
this Agreement (whether or not performance and payment have been 
completed and releases executed if the OPM or the Carrier has any 
remaining rights, duties, or obligations under these contracts and 
purchase orders).
    (2) The (insert old Carrier name), by an amendment to its 
certificate of incorporation, dated ----, 19--, has changed its 
corporate name to (insert new Carrier name).
    (3) This amendment accomplishes a change of corporate name only and 
all rights and obligations of the Government and the Carrier under the 
contract are unaffected by this change.
    (4) Documentary evidence of this change of corporate name has been 
filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT:
    (1) The contract is amended by substituting the name `` (insert new 
Carrier name)'' for the name ``(insert old Carrier name)'' wherever it 
appears in the contract; and
    (2) Each party has executed this Agreement effective the day and 
year stated in paragraph (a)(2).

UNITED STATES OF AMERICA,

---------- Date ----------______________________________________________
Title___________________________________________________________________
    (Enter new Carrier name)

By ---------- Date ----------

Title___________________________________________________________________
    (Corporate Seal)

                               Certificate

    I, ------, certify that I am the Secretary of (insert new Carrier 
name); that ------, who signed this Agreement for this corporation, was 
then (insert position held) of this corporation; and that this Agreement 
was duly signed for and on behalf of this corporation by authority of 
its governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this ---- day of --
-- 19--.

By______________________________________________________________________
    (Corporate Seal)

                           (End of Agreement)

    (b) Failure to submit the properly completed and signed Change-of-
Name Agreement in a timely manner may be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.



  Subpart 1642.70--Management Agreement (in Lieu of Novation Agreement)



1642.7001  Management agreement.

    When it is in the best interest of FEHBP enrollees to continue a 
contract for an interim period after the carrier discontinues its 
operations and has entered into a Purchase and Sale Agreement (or other 
descriptive term), but before a successor in interest has been 
recognized by OPM, the carrier may submit for OPM approval a Management 
Agreement that enables it to continue a contract through an agreement 
with a third party to administer the day-to-day performance of the 
contract. Examples of situations in which a Management Agreement may be 
accepted by OPM are:
    (a) When a transfer of assets does not meet the criteria for a 
novation;
    (b) While a request for a novation is pending;
    (c) While awaiting a decision on a request for a novation;
    (d) As an interim measure, when the timing of a transfer of assets 
or the timing of a carrier's withdrawal make administration of the 
contract inconvenient;
    (e) When it is not in the interests of the Government to either 
recognize a successor in interest or to immediately

[[Page 144]]

terminate the existing FEHBP contract.



PART 1643--CONTRACT MODIFICATIONS--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



                         Subpart 1643.2--Changes



1643.205-70  Contract clause.

    The clause set forth in section 1652.243-70 shall be inserted in all 
FEHB Program contracts.



PART 1644--SUBCONTRACTING POLICIES AND PROCEDURES--Table of Contents




                         Subpart 1644.1--General

Sec.
1644.170 Policy for FEHBP subcontracting consent.

                 Subpart 1644.2--Consent to Subcontracts

1644.270 FEHBP contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.



                         Subpart 1644.1--General



1644.170  Policy for FEHBP subcontracting consent.

    For all experience rated FEHBP contracts, advance approval shall be 
required on subcontracts or modifications to subcontracts when the 
amount charged against the FEHBP contract exceeds $100,000 and is at 
least 25 percent of the total cost of the subcontract.

[62 FR 47575, Sept. 10, 1997]



                 Subpart 1644.2--Consent to Subcontracts



1644.270  FEHBP contract clause.

    The clause set forth at section 1652.244-70 shall be inserted in all 
experience rated FEHBP contracts.

[62 FR 47576, Sept. 10, 1997]



PART 1645--GOVERNMENT PROPERTY--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47576, Sept. 10, 1997, unless otherwise noted.



                   Subpart 1645.3--Providing Equipment



1645.303-70  Contract clause.

    The clause set forth in section 1652.245-70 shall be inserted in all 
FEHB Program contracts.



PART 1646--QUALITY ASSURANCE--Table of Contents




              Subpart 1646.2--Contract Quality Requirements

Sec.
1646.270 General.

                    Subpart 1646.3--Contract Clauses

1646.301 Contractor inspection requirements.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



              Subpart 1646.2--Contract Quality Requirements



1646.270  General.

    (a) This section prescribes general policies and procedures to 
ensure that services acquired under the FEHBP contract conform to the 
contract's quality requirements.
    (b) OPM shall periodically evaluate the contractor's system of 
internal controls under the quality assurance program required by the 
contract and will acknowledge in writing whether or not the system is 
consistent with the requirements set forth in the contract. After the 
initial review, subsequent reviews may be limited to changes in the 
contractor's internal control guidelines. However, a limited review does 
not diminish the contractor's obligation to apply the full internal 
control system.
    (c) OPM will issue specific performance standards for the FEHBP 
contracts and will inform carriers of the applicable performance 
standards prior

[[Page 145]]

to negotiations for the contract year. OPM will benchmark its standards 
against standards generally accepted in the insurance industry. The 
contracting officer may authorize nationally recognized standards to be 
used to fulfill this requirement.
    (d) FEHBP carriers shall comply with the performance standards 
issued under paragraph (c) of this section.

[59 FR 14767, Mar. 30, 1994]



                    Subpart 1646.3--Contract Clauses



1646.301  Contractor inspection requirements.

    The clause set forth at 1652.246-70 shall be inserted in all FEHBP 
contracts.

[52 FR 16044, May 1, 1987]



PART 1649--TERMINATION OF CONTRACTS--Table of Contents




Sec.
1649.002-70 Applicability of the FAR to FEHB acquisitions.

                   Subpart 1649.1--General Principles

1649.101-70 FEHBP renewal and withdrawal of approval clause.
1649.101-71 FEHBP termination for convenience clause.
1649.101-72 FEHBP termination for default clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



1649.002-70  Applicability of the FAR to FEHB acquisitions.

    (a) Termination of FEHB contracts because of withdrawal of approval 
is controlled by 5 U.S.C. 8902(e) and 5 CFR 890.204.
    (b) Termination of FEHB contracts because of nonrenewal of the 
contract at the end of the contract term is controlled by 5 U.S.C. 
8902(a) and 5 CFR 890.205.
    (c) The procedures for settlement of contracts after they are 
terminated shall be those contained in FAR part 49.

[57 FR 19387, May 6, 1992]



                   Subpart 1649.1--General Principles



1649.101-70  FEHBP renewal and withdrawal of approval clause.

    The clause in 1652.249-70 shall be inserted in all FEHBP contracts.



1649.101-71  FEHBP termination for convenience clause.

    The clause set forth in 1652.249-71 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]



1649.101-72  FEHBP termination for default clause.

    The clause set forth in 1652.249-72 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]

[[Page 146]]



                     SUBCHAPTER H--CLAUSES AND FORMS



PART 1652--CONTRACT CLAUSES--Table of Contents




Sec.
1652.000 Applicable clauses.

                 Subpart 1652.2--Texts of FEHBP Clauses

1652.203-70 Misleading, deceptive, or unfair advertising.
1652.204-70 Contractor records retention.
1652.204-71 Coordination of Benefits.
1652.204-72 Filing health benefit claims/court review of disputed 
          claims.
1652.204-73 Taxpayer Identification Number.
1652.215-70 Rate Reduction for Defective Pricing or Defective Cost or 
          Pricing Data.
1652.215-71 Investment Income.
1652.216-70 Accounting and price adjustment.
1652.216-71 Accounting and Allowable Cost.
1652.222-70 Notice of significant events.
1652.224-70 Confidentiality of records.
1652.229-70 Taxes--Foreign Negotiated benefits contracts.
1652.232-70 Payments--community-rated contracts.
1652.232-71 Payments--experience-rated contracts.
1652.232-72 Non-commingling of FEHBP funds.
1652.232-73 Approval for the Assignment of Claims.
1652.243-70 Changes--Negotiated benefits contracts.
1652.244-70 Subcontracts.
1652.245-70 Government property (negotiated benefits contracts).
1652.246-70 FEHB Inspection.
1652.249-70 Renewal and withdrawal of approval.
1652.249-71 FEHBP termination for convenience of the government--
          negotiated benefits contracts.
1652.249-72 FEHBP termination for default--negotiated benefits 
          contracts.

                   Subpart 1652.3--FEHBP Clause Matrix

1652.370 Use of the matrix.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



1652.000  Applicable clauses.

    The clauses of FAR subpart 52.2 shall be applicable to FEHBP 
contracts as specified in the FEHBAR Clause Matrix in subpart 1652.3.

                        Section and Clause Title

52.202-1 Definitions.
52.203-3 Gratuities.
52.203-5 Covenant Against Contingent Fees.
52.203-7 Anti-Kickback Procedures.
52.203-12 Limitation on Payments to Influence Certain Federal 
          Transactions.
52.209-6 Protecting the Government's Interest When Subcontracting With 
          Contractors Debarred, Suspended, or Proposed for Debarment.
52.215-2 Audit and Records--Negotiation.
52.215-22 Price Reduction for Defective Cost or Pricing Data.
52.215-24 Subcontractor Cost or Pricing Data.
52.215-27 Termination of Defined Benefit Pension Plans.
52.215-30 Facilities Capital Cost of Money.
52.215-31 Waiver of Facilities Capital Cost of Money.
52.215-39 Reversion or Adjustment of Plans for Postretirement Benefits 
          Other Than Pensions (PRB).
52.219-8 Utilization of Small, Small Disadvantaged and Women-Owned Small 
          Business Concerns.
52.222-1 Notice to the Government of Labor Disputes.
52.222-3 Convict Labor.
52.222-4 Contract Work Hours and Safety Standards Act--Overtime 
          Compensation--General.
52.222-21 Certification of Nonsegregated Facilities.
52.222-26 Equal Opportunity.
52.222-28 Equal Opportunity Preaward Clearance of Subcontracts.
52.222-29 Notification of Visa Denial.
52.222-35 Affirmative Action for Special Disabled and Vietnam Era 
          Veterans.
52.222-36 Affirmative Action for Handicapped Workers.
52.222-37 Employment Reports on Special Disabled Veterans and Veterans 
          of the Vietnam Era.
52.223-2 Clean Air and Water.
52.223-6 Drug-Free Workplace.
52.227-1 Authorization and Consent.
52.227-2 Notice and Assistance Regarding Patent and Copyright 
          Infringement.
52.229-3 Federal, State,and Local Taxes.
52.229-4 Federal, State, and Local Taxes (Noncompetitive Contract).
52.229-5 Taxes--Contracts Performed in U.S. Possessions or Puerto Rico.
52.230-2 Cost Accounting Standards.
52.230-3 Disclosure and Consistency of Cost Accounting Practices.
52.230-5 Administration of Cost Accounting Standards.
52.232-8 Discounts for Prompt Payment.
52.232-17 Interest.

[[Page 147]]

52.232-23 Assignment of Claims.
52.232-33 Mandatory Information For Electronic Funds Transfer Payment.
52.233-1 Disputes.
52.242-1 Notice of Intent to Disallow Costs.
52.242-3 Penalties for Unallowable Costs.
52.242-13 Bankruptcy.
52.244-5 Competition in Subcontracting.
52.244-6 Subcontracts for Commercial Items and Commercial Components.
52.246-25 Limitation of Liability--Services.
52.247-63 Preference for U.S.-Flag Air Carriers.
52.251-1 Government Supply Sources.
52.232-2 Clauses Incorporated by Reference.
52.252-4 Alterations in Contract.
52.252-6 Authorized Deviations in Clauses.

[62 FR 47576, Sept. 10, 1997]



                 Subpart 1652.2--Texts of FEHBP Clauses



1652.203-70  Misleading, deceptive, or unfair advertising.

    As prescribed in 1603.7003, the following clause shall be inserted 
in all FEHBP contracts:

         Misleading, Deceptive, or Unfair Advertising (JAN 1991)

    (a) The Carrier agrees that any advertising material, including that 
labeled promotional material, marketing material, or supplemental 
literature, shall be truthful and not misleading.
    (b) Criteria to assess compliance with paragraph (a) of this clause 
are available in the FEHB Supplemental Literature Guidelines which are 
developed by OPM and should be used, along with the additional 
guidelines set forth in FEHBAR 1603.702, as the primary guide in 
preparing material; further guidance is provided in the NAIC ``Rules 
Governing Advertising of Accident and Sickness Insurance With 
Interpretive Guidelines.'' Guidelines are periodically updated and 
provided to the Carrier by OPM.
    (c) Failure to conform to paragraph (a) of this clause may result in 
a reduction in the service charge, if appropriate, and corrective action 
to protect the interest of Federal Members. Corrective action will be 
appropriate to the circumstances and may include, but is not limited to 
the following actions by OPM:
    (1) Directing the Carrier to cease and desist distribution, 
publication, or broadcast of the material;
    (2) Directing the Carrier to issue corrections at the Carrier's 
expense and in the same manner and media as the original material was 
made; and
    (3) Directing the Carrier to provide, at the Carrier's expense, the 
correction in writing by certified mail to all enrollees of the Plan(s) 
that had been the subject of the original material.
    (d) Egregious or repeated offenses may result in the following 
action by OPM:
    (1) Suspending new enrollments in the Carrier's Plan(s);
    (2) Providing Enrollees an opportunity to transfer to another plan; 
and
    (3) Terminating the contract in accordance with Section 1.15, 
Renewal and Withdrawal of Approval.
    (e) Prior to taking action as described in paragraphs (c) and (d) of 
this clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (f) The Carrier shall incorporate this clause in subcontracts with 
its underwriter, if any, and other subcontractors directly involved in 
the preparation or distribution of such advertising material and shall 
substitute ``Contractor'' or other appropriate reference for the term 
``Carrier.''

                             (End of clause)

[55 FR 27415, July 2, 1990, as amended at 62 FR 47576, Sept. 10, 1997]



1652.204-70  Contractor records retention.

    As prescribed in 1604.705, the following clause shall be inserted in 
all FEHBP contracts.

                 Contractor Records Retention (JAN 1998)

    Notwithstanding the provisions of section 5.7 (FAR 52.215-2(f)) 
``Audit and Records-Negotiation,'' the Carrier shall retain and make 
available all records applicable to a contract term that support the 
annual statement of operations and, for contracts that exceed the 
threshold at FAR 15.804-2(a)(1), the rate submission for that contract 
term for a period of 5 years after the end of the contract term to which 
the records relate, except that enrollee and/or patient claim records 
shall be maintained for 3 years after the end of the contract term to 
which the claim records relate.

                             (End of clause)

[62 FR 47576, Sept. 10, 1997]



1652.204-71  Coordination of Benefits.

    As prescribed in 1604.7001, the following clause shall be inserted 
in all FEHBP contracts:

                   Coordination of Benefits (JAN 1991)

    (a) The Carrier shall coordinate the payment of benefits under this 
contract with the payment of benefits under Medicare, other

[[Page 148]]

group health benefits coverages, and the payment of medical and hospital 
costs under no-fault or other automobile insurance that pays benefits 
without regard to fault.
    (b) The Carrier shall not pay benefits under this contract until it 
has determined whether it is the primary carrier or unless permitted to 
do so by the Contracting Officer.
    (c) In coordinating benefits between plans, the Carrier shall follow 
the order of precedence established by the NAIC Model Guidelines for 
Coordination of Benefits (COB) as specified by OPM.
    (d) Where (1) the Carrier makes payments under this contract which 
are subject to COB provisions; (2) the payments are erroneous, not in 
accordance with the terms of the contract, or in excess of the 
limitations applicable under this contract; and (3) the Carrier is 
unable to recover such COB overpayments from the Member or the providers 
of services or supplies, the Contracting Officer may allow such amounts 
to be charged to the contract; the Carrier must be prepared to 
demonstrate that it has made a diligent effort to recover such COB 
overpayments.
    (e) COB savings shall be reported by experience rated carriers each 
year along with the Carrier's annual accounting statement in a form 
specified by OPM.
    (f) Changes in the order of precedence established by the NAIC Model 
Guidelines implemented after January 1 of any given year shall be 
required no earlier than the beginning of the following contract term.

                             (End of clause)

[55 FR 27415, July 2, 1990]



Sec. 1652.204-72  Filing health benefit claims/court review of disputed claims.

    As prescribed in 1604.7101 of this chapter, the following clause 
must be inserted in all FEHB Program contracts.

 Filing Health Benefit Claims/Court Review of Disputed Claims (MAR 1995)

    (a) General. (1) The Carrier resolves claims filed under the Plan. 
All health benefit claims must be submitted initially to the Carrier. If 
the Carrier denies a claim (or a portion of a claim), the covered 
individual may ask the Carrier to reconsider its denial. If the Carrier 
affirms its denial or fails to respond as required by paragraph (b) of 
this clause, the covered individual may ask OPM to review the claim. A 
covered individual must exhaust both the Carrier and OPM review 
processes specified in this clause before seeking judicial review of the 
denied claim.
    (2) This clause applies to covered individuals and to other 
individuals or entities who are acting on the behalf of a covered 
individual and who have the covered individual's specific written 
consent to pursue payment of the disputed claim.
    (b) Time limits for reconsidering a claim. (1) The covered 
individual has 6 months from the date of the notice to the covered 
individual that a claim (or a portion of a claim) was denied by the 
Carrier in which to submit a written request for reconsideration to the 
Carrier. The time limit for requesting reconsideration may be extended 
when the covered individual shows that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit.
    (2) The Carrier has 30 days after the date of receipt of a timely-
filed request for reconsideration to:
    (i) Affirm the denial in writing to the covered individual;
    (ii) Pay the bill or provide the service; or
    (iii) Request from the covered individual or provider additional 
information needed to make a decision on the claim. The Carrier must 
simultaneously notify the covered individual of the information 
requested if it requests additional information from a provider. The 
Carrier has 30 days after the date the information is received to affirm 
the denial in writing to the covered individual or pay the bill or 
provide the service. The Carrier must make its decision based on the 
evidence it has if the covered individual or provider does not respond 
within 60 days after the date of the Carrier's notice requesting 
additional information. The Carrier must then send written notice to the 
covered individual of its decision on the claim. The covered individual 
may request OPM review as provided in paragraph (b)(3) of this clause if 
the Carrier fails to act within the time limit set forth in this 
paragraph.
    (3) The covered individual may write to OPM and request that OPM 
review the Carrier's decision if the Carrier either affirms its denial 
of a claim or fails to respond to a covered individual's written request 
for reconsideration within the time limit set forth in paragraph (b)(2) 
of this clause. The covered individual must submit the request for OPM 
review within the time limit specified in paragraph (e)(1) of this 
clause.
    (4) The Carrier may extend the time limit for a covered individual's 
submission of additional information to the Carrier when the covered 
individual shows he or she was not notified of the time limit or was 
prevented by circumstances beyond his or her control from submitting the 
additional information.
    (c) Information required to process requests for reconsideration. 
(1) The covered individual must put the request to the Carrier to 
reconsider a claim in writing and give the reasons, in terms of 
applicable brochure provisions, that the denied claim should have been 
approved.

[[Page 149]]

    (2) If the Carrier needs additional information from the covered 
individual to make a decision, it must:
    (i) Specifically identify the information needed;
    (ii) State the reason the information is required to make a decision 
on the claim;
    (iii) Specify the time limit (60 days after the date of the 
Carrier's request) for submitting the information; and
    (iv) State the consequences of failure to respond within the time 
limit specified, as set out in paragraph (b)(2) of this section.
    (d) Carrier determinations. The Carrier must provide written notice 
to the covered individual of its determination. If the Carrier affirms 
the initial denial, the notice must inform the covered individual of:
    (1) The specific and detailed reasons for the denial;
    (2) The covered individual's right to request a review by OPM; and
    (3) The requirement that requests for OPM review must be received 
within 90 days after the date of the Carrier's denial notice and include 
a copy of the denial notice as well as documents to support the covered 
individual's position.
    (e) OPM review. (1) If the covered individual seeks further review 
of the denied claim, the covered individual must make a request to OPM 
to review the Carrier's decision. Such a request to OPM must be made:
    (i) Within 90 days after the date of the Carrier's notice to the 
covered individual that the denial was affirmed; or
    (ii) If the Carrier fails to respond to the covered individual as 
provided in paragraph (b)(2) of this clause, within 120 days after the 
date of the covered individual's timely request for reconsideration by 
the Carrier; or
    (iii) Within 120 days after the date the Carrier requests additional 
information from the covered individual, or the date the covered 
individual is notified that the Carrier is requesting additional 
information from a provider. OPM may extend the time limit for a covered 
individual's request for OPM review when the covered individual shows he 
or she was not notified of the time limit or was prevented by 
circumstances beyond his or her control from submitting the request for 
OPM review within the time limit.
    (2) In reviewing a claim denied by the Carrier, OPM may:
    (i) Request that the covered individual submit additional 
information;
    (ii) Obtain an advisory opinion from an independent physician;
    (iii) Obtain any other information as may in its judgment be 
required to make a determination; or
    (iv) Make its decision based solely on the information the covered 
individual provided with his or her request for review.
    (3) When OPM requests information from the Carrier, the Carrier must 
release the information within 30 days after the date of OPM's written 
request unless a different time limit is specified by OPM in its 
request.
    (4) Within 90 days after receipt of the request for review, OPM will 
either:
    (i) Give a written notice of its decision to the covered individual 
and the Carrier; or
    (ii) Notify the individual of the status of the review. If OPM does 
not receive requested evidence within 15 days after expiration of the 
applicable time limit in paragraph (e)(3) of this clause, OPM may make 
its decision based solely on information available to it at that time 
and give a written notice of its decision to the covered individual and 
to the Carrier.
    (f) OPM, upon its own motion, may reopen its review if it receives 
evidence that was unavailable at the time of its original decision.
    (g) Court review. (1) A suit to compel enrollment under Sec. 890.102 
of Title 5, Code of Federal Regulations, must be brought against the 
employing office that made the enrollment decision.
    (2) A suit to review the legality of OPM's regulations under this 
part must be brought against the Office of Personnel Management.
    (3) Federal Employees Health Benefits (FEHB) carriers resolve FEHB 
claims under authority of Federal statute (chapter 89, title 5, United 
States Code). A covered individual may seek judicial review of OPM's 
final action on the denial of a health benefits claim. A legal action to 
review final action by OPM involving such denial of health benefits must 
be brought against OPM and not against the Carrier or the Carrier's 
subcontractors. The recovery in such a suit shall be limited to a court 
order directing OPM to require the Carrier to pay the amount of benefits 
in dispute.
    (4) An action under paragraph (3) of this clause to recover on a 
claim for health benefits:
    (i) May not be brought prior to exhaustion of the administrative 
remedies provided in paragraphs (a) through (f) of this clause;
    (ii) May not be brought later than December 31 of the 3rd year after 
the year in which the care or service was provided; and
    (iii) Will be limited to the record that was before OPM when it 
rendered its decision affirming the Carrier's denial of benefits.

                             (End of clause)

[61 FR 15198, Apr. 5, 1996, as amended at 62 FR 47576, Sept. 10, 1997]



1652.204-73  Taxpayer Identification Number.

    As prescribed in 1604.970, insert the following clause.

                Taxpayer Identification Number (JAN 2000)

    (a) Definitions.

[[Page 150]]

    Common parent, as used in this provision, means that corporate 
entity that owns or controls an affiliated group of corporations that 
files its Federal income tax returns on a consolidated basis, and of 
which the Carrier is a member.
    Taxpayer Identification Number (TIN), as used in this provision, 
means the number required by the Internal Revenue Service (IRS) to be 
used by the Carrier in reporting income tax and other returns.
    (b) The Carrier must submit the information required in paragraphs 
(d) through (f) of this clause to comply with debt collection 
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by 
the IRS. The Carrier is subject to the payment reporting requirements 
described in Federal Acquisition Regulation (FAR) 4.904. The Carrier's 
failure or refusal to furnish the information will result in payment 
being withheld until the TIN number is provided.
    (c) The Government may use the TIN to collect and report on any 
delinquent amounts arising out of the Carrier's relationship with the 
Government (31 U.S.C. 7701(c)(3)). The TIN provided hereunder may be 
matched with IRS records to verify its accuracy.
    (d) Taxpayer Identification Number (TIN).

TIN:------------------------
    (e) Type of organization.

[squ] Sole proprietorship;
[squ] Partnership;
[squ] Corporate entity (not tax-exempt);
[squ] Corporate entity (tax-exempt);
[squ] Other ------------------------.

    (f) Common parent.

[squ] Carrier is not owned or controlled by a common parent as defined 
          in paragraph (a) of this clause.
[squ] Name and TIN of common parent:

Name ------------------------
TIN------------------------

                             (End of clause)

[65 FR 36386, June 8, 2000]



1652.215-70  Rate Reduction for Defective Pricing or Defective Cost or Pricing Data.

    As prescribed in 1615.804-72, the following clause shall be inserted 
in FEHBP contracts exceeding the threshold at FAR 15.804-2(a)(1) that 
are based on a combination of cost and price analysis (community rated):

 Rate Reduction for Defective Pricing or Defective Cost or Pricing Data 
                               (JAN 2000)

    (a) If any rate established in connection with this contract was 
increased because (1) the Carrier submitted, or kept in its files in 
support of the FEHBP rate, cost or pricing data that were not complete, 
accurate, or current as certified in the Certificate of Accurate Cost or 
Pricing Data (FEHBAR 1615.804-70); (2) the Carrier submitted, or kept in 
its files in support of the FEHBP rate, cost or pricing data that were 
not accurate as represented in the rate proposal documents; (3) the 
Carrier developed FEHBP rates with a rating methodology and structure 
inconsistent with that used to develop rates for similarly sized 
subscriber groups (see FEHBAR 1602.170-13) as certified in the 
Certificate of Accurate Cost or Pricing Data for Community Rated 
Carriers; or (4) the Carrier submitted or, or kept in its files in 
support of the FEHBP rate, data or information of any description that 
were not complete, accurate, and current--then, the rate shall be 
reduced in the amount by which the price was increased because of the 
defective data or information.
    (b)(1) If the Contracting Officer determines under paragraph (a) of 
this clause that a price or cost reduction should be made, the Carrier 
agrees not to raise the following matters as a defense:
    (i) The Carrier was a sole source supplier or otherwise was in a 
superior bargaining position and thus the price of the contract would 
not have been modified even if accurate, complete, and current cost or 
pricing data had been submitted or maintained and identified.
    (ii) The Contracting Officer should have known that the cost or 
pricing data in issue were defective even though the Carrier took no 
affirmative action to bring the character of the data to the attention 
of the Contracting Officer.
    (iii) The contract was based on an agreement about the total cost of 
the contract and there was no agreement about the cost of each item 
procured under the contract.
    (iv) The Carrier did not submit or keep in its files a Certificate 
of Current Cost or Pricing Data.
    (2)(i) Except as prohibited by subdivision (b)(2)(ii) of this 
clause, an offset in an amount determined appropriate by the Contracting 
Officer based upon the facts shall be allowed against the amount of a 
contract price reduction if--
    (A) The Carrier certifies to the Contracting Officer that, to the 
best of the Carrier's knowledge and belief, the Carrier is entitled to 
the offset in the amount requested; and
    (B) The Carrier proves that the cost or pricing data were available 
before the date of agreement on the price of the contract (or

[[Page 151]]

price of the modification) and that the data were not submitted before 
such date.
    (ii) An offset shall not be allowed if--
    (A) The understated data was known by the Carrier to be understated 
when the Certificate of Current Cost or Pricing Data was signed; or
    (B) The Government proves that the facts demonstrate that the 
contract price would not have increased in the amount to be offset even 
if the available data had been submitted before the date of agreement on 
price.
    (c) When the Contracting Officer determines that the rates shall be 
reduced and the Government is thereby entitled to a refund, the Carrier 
shall be liable to and shall pay the FEHB Fund at the time the 
overpayment is repaid--
    (1) Simple interest on the amount of the overpayment from the date 
the overpayment was paid from the FEHB Fund to the Carrier until the 
date the overcharge is liquidated. In calculating the amount of interest 
due, the quarterly rate determinations by the Secretary of the Treasury 
under the authority of 26 U.S.C. 6621(a)(2) applicable to the periods 
the overcharge was retained by the Carrier shall be used; and,
    (2) A penalty equal to the amount of overpayment, if the Carrier 
knowingly submitted cost or pricing data which was incomplete, 
inaccurate, or noncurrent.
    (d) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Similarly sized subscriber group (SSSG) rating methodologies 
shall not be used to determine the reasonableness of the Carrier's 
demonstration project premium rates. The Carrier's rates shall not be 
adjusted for equivalency with SSSG rating methodologies. The Carrier 
shall benchmark premiums against adjusted community rates if available, 
Medigap offerings, or other similar products.
    (2) The Carrier shall account separately for health benefits charges 
paid using demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
shall be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity.

                             (End of clause)

[62 FR 47576, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000]



1652.215-71  Investment Income.

    As prescribed in 1615.805-71, the following clause shall be inserted 
in all FEHBP contracts based on cost analysis:

                      Investment Income (JAN 1998)

    (a) The Carrier shall invest and reinvest all FEHB funds on hand 
that are in excess of the funds needed to promptly discharge the 
obligations incurred under this contract. The Carrier shall seek to 
maximize investment income with prudent consideration to the safety and 
liquidity of investments.
    (b) All investment income earned on FEHB funds shall be credited to 
the Special Reserve on behalf of the FEHBP.
    (c) When the Contracting Officer concludes that the Carrier failed 
to comply with paragraph (a) or (b) of this clause, the Carrier shall 
credit the Special Reserve with investment income that would have been 
earned, at the rate(s) specified in paragraph (f) of this clause, had it 
not been for the Carrier's noncompliance. ``Failed to comply with 
paragraph (a) or (b)'' means: (1) Making any charges against the 
contract which are not allowable, allocable, or reasonable; or (2) 
failing to credit any income due the contract and/or failing to place 
excess funds, including subscription income and payments from OPM not 
needed to discharge promptly the obligations incurred under the 
contract, refunds, credits, payments, deposits, investment income 
earned, uncashed checks, or other amounts owed the Special Reserve, in 
income producing investments and accounts.
    (d) Investment income lost as a result of unallowable, unallocable, 
or unreasonable charges against the contract shall be paid from the 1st 
day of the contract term following the contract term in which the 
unallowable charge was made and shall end on the earlier of: (1) The 
date the amounts are returned to the Special Reserve (or the Office of 
Personnel Management); (2) the date specified by the Contracting 
Officer; or, (3) the date of the Contracting Officer's Final Decision.
    (e) Investment income lost as a result of failure to credit income 
due the contract or failure to place excess funds in income producing 
investments and accounts shall be paid from the date the funds should 
have been invested or appropriate income was not credited and shall end 
on the earlier of: (1) The date the amounts are returned to the Special 
Reserve (or the Office of Personnel Management); (2) the date specified 
by the Contracting Officer; or, (3) the date of the Contracting 
Officer's Final Decision.
    (f) The Carrier shall credit the Special Reserve for income due in 
accordance with this clause. All lost investment income payable shall 
bear simple interest at the quarterly

[[Page 152]]

rate determined by the Secretary of the Treasury under the authority of 
26 U.S.C. 6621(a)(2) applicable to the periods in which the amount 
becomes due, as provided in paragraphs (d) and (e) of this clause.
    (g) The Carrier shall incorporate this clause into agreements with 
underwriters of the Carrier's FEHB plan and shall substitute 
``underwriter'' or other appropriate reference for the term ``Carrier.''

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 62 FR 47577, Sept. 10, 1997]



1652.216-70  Accounting and price adjustment.

    As prescribed in section 1616.7001, the following clause shall be 
inserted in all FEHBP contracts based on a combination of cost and price 
analysis (community rated).

               Accounting and Price Adjustment (JAN 2000)

    (a) Annual Accounting Statement. The Carrier, not later than 90 days 
after the end of each contract period, shall furnish to OPM for that 
contract period an accounting of its operations under the contract. The 
accounting shall be in the form prescribed by OPM.
    (b) Adjustment. (1) This contract is community rated as defined in 
FEHBAR 1602.170-2.
    (2) The subscription rates agreed to in this contract shall be 
equivalent to the subscription rates given to the carrier's similarly 
sized subscriber groups (SSSGs) as defined in FEHBAR 1602.170-13.
    (3) If, at the time of the rate reconciliation, the subscription 
rates are found to be lower than the equivalent rates for the lower of 
the two SSSGs, the carrier may include an adjustment to the Federal 
group's rates for the next contract period.
    (4) If, at the time of the rate reconciliation, the subscription 
rates are found to be higher than the equivalent rates for the lower of 
the two SSSGs, the Carrier shall reimburse the Fund, for example, by 
reducing the FEHB rates for the next contract term to reflect the 
difference between the estimated rates and the rates which are derived 
using the methodology of the lower rated SSSG.
    (5) No upward adjustment in the rate established for this contract 
will be allowed or considered by the Government or will be made by the 
Carrier in this or in any other contract period on the basis of actual 
costs incurred, actual benefits provided, or actual size or composition 
of the FEHBP group during this contract period.
    (6) In the event this contract is not renewed, neither the 
Government nor the Carrier shall be entitled to any adjustment or claim 
for the difference between the subscription rates prior to rate 
reconciliation and the actual subscription rates.
    (c) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). (1) Similarly sized subscriber group (SSSG) rating methodologies 
shall not be used to determine the reasonableness of the Carrier's 
demonstration project premium rates. The Carrier's rates shall not be 
adjusted for equivalency with SSSG rating methodologies. The Carrier 
shall benchmark premiums against adjusted community rates if available, 
Medigap offerings, or other similar products.
    (2) The Carrier shall account separately for health benefits charges 
paid using demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
shall be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity.

                             (End of clause)

[62 FR 47577, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000]



1652.216-71  Accounting and Allowable Cost.

    As prescribed in section 1616.7002, the following clause shall be 
inserted in all FEHBP contracts based on cost analysis (experience 
rated).

      Accounting and Allowable Cost (FEHBAR 1652.216-71) (JAN 2000)

    (a) Annual Accounting Statements. (1) The Carrier shall furnish to 
OPM an accounting of its operations under the contract. In preparing the 
accounting, the Carrier shall follow the reporting requirements and 
statement formats prescribed by OPM in the OPM Annual and Fiscal Year 
Financial Reporting Instructions.
    (2) The Carrier shall have its Annual Accounting Statements and that 
of its underwriter, if any, audited in accordance with the FEHBP 
Experienced-Rated Carrier and Service Organization Audit Guide (Guide). 
The Carrier shall submit the audit report and the Annual Accounting 
Statements to OPM in accordance with the requirements of the Guide.
    (3) Based on the results of either the independent audit prescribed 
by the Guide or a Government audit, OPM may require the

[[Page 153]]

Carrier adjust its annual accounting statements (i) by amounts found not 
to constitute actual, allowable, allocable and reasonable costs; or (ii) 
to reflect prior overpayments or underpayments.
    (4) The Carrier shall develop corrective action plans to resolve 
audit findings identified in audits that were performed in accordance 
with the Guide. The corrective action plans will be prepared in 
accordance with and as defined by the Guide.
    (b) Definition of costs. (1) The Carrier may charge a cost to the 
contract for a contract term if the cost is actual, allowable, 
allocable, and reasonable. In addition, the Carrier must:
    (i) on request, document and make available accounting support for 
the cost to justify that the cost is actual, reasonable and necessary; 
and
    (ii) determine the cost in accordance with: (A) the terms of this 
contract, and (B) Subpart 31.2 of the Federal Acquisition Regulation 
(FAR) and Subpart 1631.2 of the Federal Employees Health Benefits 
Program Acquisition Regulation (FEHBAR) applicable on the first day of 
the contract period.
    (2) In the absence of specific contract terms to the contrary, the 
Carrier shall classify contract costs in accordance with the following 
criteria:
    (i) Benefits. Benefit costs consist of payments made and liabilities 
incurred for covered health care services on behalf of FEHBP subscribers 
less any refunds, rebates, allowances or other credits received.
    (ii) Administrative expenses. Administrative expenses consist of all 
actual, allowable, allocable and reasonable expenses incurred in the 
adjudication of subscriber benefit claims or incurred in the Carrier's 
overall operation of the business. Unless otherwise stated in the 
contract, administrative expenses include, in part: all taxes (excluding 
premium taxes, as provided in section 1631.205-41), insurance and 
reinsurance premiums, medical and dental consultants used in the 
adjudication process, concurrent or managed care review when not billed 
by a health care provider and other forms of utilization review, the 
cost of maintaining eligibility files, legal expenses incurred in the 
litigation of benefit payments and bank charges for letters of credit. 
Administrative expenses exclude the cost of Carrier personnel, 
equipment, and facilities directly used in the delivery of health care 
services, which are benefit costs, and the expense of managing the FEHBP 
investment program which is a reduction of investment income earned.
    (iii) Investment income. While compliance with the checks presented 
letter of credit methodology will minimize funds on hand, the Carrier 
shall invest and reinvest all funds on hand, including any in the 
Special Reserve or any attributable to the reserve for incurred but 
unpaid claims, which are in excess of the funds needed to discharge 
promptly the obligations incurred under the contract. Investment income 
represents the net amount earned by the Carrier after deducting 
investment expenses. Investment expenses are those actual, allowable, 
allocable, and reasonable contract costs that are attributable to the 
investment of funds, such as consultant or management fees.
    (iv) Other charges. (A) Mandatory statutory reserve. Charges for 
mandatory statutory reserves are not allowable unless specifically 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the Carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the Carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
Carrier, the Carrier shall return to the FEHBP a pro rata share based 
upon FEHBP's contribution to the total Carrier's set aside shall be 
returned to the FEHBP in accordance with FAR 31.201-5.
    (B) Premium taxes. (1) When the term ``premium taxes'' is used in 
this contract without further definition or explanation, it means a tax, 
fee, or other monetary payment directly or indirectly imposed on FEHB 
premiums by any State, the District of Columbia, or the Commonwealth of 
Puerto Rico or by any political subdivision or other governmental 
authority of those entities, with the sole exception of a tax on net 
income or profit, if that tax, fee, or payment is applicable to a broad 
range of business activity.
    (2) For purposes of this paragraph (B), OPM has determined that the 
term ``State'' as used in 5 U.S.C. 8909(f) includes, but is not limited 
to, a territory or possession of the United States.
    (c) Certification of Accounting Statement Accuracy. (1) The Carrier 
shall certify the annual and fiscal year accounting statements in the 
form set forth in paragraph (c)(3) of this clause. The Carrier's chief 
executive officer and the chief financial officer shall sign the 
certificate.
    (2) The Carrier shall require an authorized agent of its 
underwriter, if any, also to certify the annual accounting statement.
    (3) The certificate required shall be in the following form:

[[Page 154]]

             Certification of Accounting Statement Accuracy

    This is to certify that I have reviewed this accounting statement 
and to the best of my knowledge and belief:
    1. The statement was prepared in conformity with the guidelines 
issued by the Office of Personnel Management and fairly presents the 
financial results of this reporting period in conformity with those 
guidelines.
    2. The costs included in the statement are actual, allowable, 
allocable, and reasonable in accordance with the terms of the contract 
and with the cost principles of the Federal Employees Health Benefits 
Acquisition Regulation and the Federal Acquisition Regulation;
    3. Income, rebates, allowances, refunds and other credits made or 
owed in accordance with the terms of the contract and applicable cost 
principles have been included in the statement;
    4. If applicable, the letter of credit account was managed in 
accordance with 5 CFR part 890, 48 CFR chapter 16, and OPM guidelines.

Carrier Name:___________________________________________________________

Name of Chief Executive Officer:
(Type or Print)
________________________________________________________________________

Name of Chief Financial Officer:
________________________________________________________________________

Signature of Chief Executive Officer:
________________________________________________________________________

Signature of Chief Financial Officer:
________________________________________________________________________

Date Signed:____________________________________________________________

Date Signed:____________________________________________________________

Underwriter:____________________________________________________________

Name and Title of Responsible Corporate Official:
(Type or Print:)
________________________________________________________________________

Signature of Responsible Corporate Official:
________________________________________________________________________

Date Signed:____________________________________________________________

(End of Certificate)

    (d) Exceptions for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108).
    (1) The Carrier shall draw funds from its Letter of Credit (LOC) 
account to pay demonstration project benefits costs in the same manner 
as it does for benefits costs incurred by regular FEHB members. The 
Carrier shall account separately for health benefits charges paid using 
demonstration project funds and regular FEHB funds. Direct 
administrative costs attributable solely to the demonstration project 
shall be fully chargeable to the demonstration project. Indirect 
administrative costs associated with the demonstration project will be 
allocated to the demonstration project based on the percentage obtained 
by dividing the dollar amount of claims processed under the 
demonstration project by the dollar amount of total claims processed for 
FEHB Program activity. This same percentage will also be used to 
determine the amount of the Carrier's service charge that will be 
allocated to the demonstration project.
    (2) The Carrier shall submit a separate annual accounting statement 
and monthly incurred claims report for demonstration project experience.

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 56 FR 57497, Nov. 12, 1991; 57 
FR 14360, Apr. 20, 1992; 62 FR 47577, Sept. 10, 1997; 64 FR 36273, July 
6, 1999; 65 FR 36387, June 8, 2000]



1652.222-70  Notice of significant events.

    As prescribed in 1622.103-70, the following clause shall be inserted 
in all FEHBP contracts.

                 Notice of Significant Events (JAN 1991)

    (a) The Carrier agrees to notify OPM of any Significant Event within 
ten (10) working days after the Carrier becomes aware of it. As used in 
this section, a Significant Event is any occurrence or anticipated 
occurrence that might reasonably be expected to have a material effect 
upon the Carrier's ability to meet its obligations under this contract, 
including, but not limited to, any of the following:
    (1) Disposal of major assets;
    (2) Loss of 15% or more of the Carrier's overall membership;
    (3) Termination or modification of any contract or subcontract if 
such termination or modification might have a material effect on the 
Carrier's obligations under this contract;
    (4) Addition or termination of provider agreements;
    (5) Any changes in underwriters, reinsurers, or participating plans;
    (6) The imposition of, or notice of the intent to impose, a 
receivership, conservatorship, or special regulatory monitoring;
    (7) The withdrawal of, or notice of intent to withdraw, State 
licensing, HHS qualification, or any other status under Federal or State 
law;
    (8) Default on a loan or other financial obligation;
    (9) Any actual or potential labor dispute that delays or threatens 
to delay timely performance or substantially impairs the functioning of 
the Carrier's facilities or facilities used by the Carrier in the 
performance of the contract;
    (10) Any change in its charter, constitution, or by-laws which 
affects any provision

[[Page 155]]

of this contract or the Carrier's participation in the Federal Employees 
Health Benefits Program; or
    (11) Any significant changes in policies and procedures or 
interpretations of the contract or brochure which would affect the 
benefits available under the contract or the costs charged to the 
contract.
    (12) Any fraud, embezzlement or misappropriation of FEHB funds; or
    (13) Any written exceptions, reservations or qualifications 
expressed by the independent accounting firm (which ascribes to the 
standards of the American Institute of Certified Public Accountants) 
contracted with by the Carrier to provide an opinion on its annual 
financial statements.
    (b) Upon learning of a Significant Event OPM may institute action, 
in proportion to the seriousness of the event, to protect the interest 
of Members, including, but not limited to--
    (1) Directing the Carrier to take corrective action;
    (2) Suspending new enrollments under this contract;
    (3) Advising Enrollees of the Significant Event and providing them 
an opportunity to transfer to another plan;
    (4) Withholding payment of subscription income or restricting access 
to the Carrier's Letter of Credit account.
    (5) Terminating the enrollment of those enrollees who, in the 
judgment of OPM, would be adversely affected by the Significant Event; 
or
    (6) Terminating this contract pursuant to section 1.15, renewal and 
withdrawal of approval.
    (c) Prior to taking action as described in paragraph (b) of this 
clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (d) The Carrier shall insert this clause in any subcontract or 
subcontract modification if both the amount of the subcontract or 
modification charged to the FEHBP (or, in the case of a community rated 
carrier, applicable to the FEHBP) exceeds $100,000 and the amount of the 
subcontract or modification to be charged to the FEHBP (or, in the case 
of a community rated carrier, applicable to the FEHBP) exceeds 25 
percent of the total cost of the subcontract or modification. If the 
Carrier is a CMP, it shall also insert this clause in all provider 
agreements over $25,000. If the Carrier is not a CMP, it shall also 
insert this clause in the contract with its underwriter, if any. The 
Carrier shall substitute ``Contractor'' or other appropriate reference 
for the term ``Carrier.''

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990]



1652.224-70  Confidentiality of records.

    As prescribed in 1624.104, the following clause shall be inserted in 
all FEHBP contracts:

                  Confidentiality of Records (JAN 1991)

    (a) The Carrier shall use the personal data on employees and 
annuitants that is provided by agencies and OPM, including social 
security numbers, for only those routine uses stipulated for the data 
and published annually in the Federal Register as a part of OPM's notice 
of systems of records.
    (b) The Carrier shall also hold all medical records, and information 
relating thereto, of Federal subscribers and family members confidential 
except as follows:
    (1) As may be reasonably necessary for the administration of this 
contract;
    (2) As authorized by the patient or his or her guardian;
    (3) As disclosure is necessary to permit Government officials having 
authority to investigate and prosecute alleged civil or criminal 
actions;
    (4) As necessary to audit the contract;
    (5) As necessary to carry out the coordination of benefits 
provisions of this contract; and
    (6) For bona fide medical research or educational purposes. Release 
of information for medical research or educational purposes shall be 
limited to aggregated information of a statistical nature that does not 
identify any individual by name, social security number, or any other 
identifier unique to an individual.
    (c) If the carrier uses medical records for the administration of 
the contract, or for bona fide medical research or educational purposes, 
it shall so state in the plan's brochure.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990]



1652.229-70  Taxes--Foreign Negotiated benefits contracts.

    As prescribed in section 1629.402, the following clause shall be 
inserted in all FEHBP contracts performed outside the United States, its 
possessions, and Puerto Rico:

         Taxes--Foreign Negotiated Benefits Contracts (JAN 1998)

    (a) To the extent that this contract provides for performing 
services outside the United States, its possessions, and Puerto Rico, 
this clause applies in lieu of any Federal, State, and local taxes 
clause of the contract.

[[Page 156]]

    (b) ``Contract date,'' as used in this clause, means the effective 
date of this contract or modification.
    ``Country concerned,'' as used in this clause, means any country, 
other than the United States, its possessions, and Puerto Rico, in which 
expenditures under this contract are made.
    ``Tax'' and ``taxes,'' as used in this clause, include fees and 
charges for doing business that are levied by the government of the 
country concerned or by its political subdivisions.
    ``All applicable taxes and duties,'' as used in this clause, means 
all taxes and duties, in effect on the contract date, that the taxing 
authority is imposing and collecting on the transactions covered by this 
contract, pursuant to written ruling or regulation in effect on the 
contract date.
    ``After-imposed tax,'' as used in this clause, means any new or 
increased tax or duty, or tax that was exempted or excluded on the 
contract date but whose exemption was later revoked or reduced during 
the contract period, other than excepted tax, on the transactions 
covered by this contract that the Carrier is required to pay or bear as 
the result of legislative, judicial, or administrative action taking 
effect after the contract date.
    ``After-relieved tax,'' as used in this clause, means any amount of 
tax or duty, other than an excepted tax, that would otherwise have been 
payable on the transactions covered by this contract, but which the 
Carrier is not required to pay or bear, or for which the Carrier obtains 
a refund, as the result of legislative, judicial, or administrative 
action taking effect after the contract date.
    ``Excepted tax,'' as used in this clause, means social security or 
other employment taxes, net income and franchise taxes, excess profits 
taxes, capital stock taxes, transportation taxes, unemployment 
compensation taxes, and property taxes. ``Excepted tax'' does not 
include gross income taxes levied on or measured by sales or receipts 
from sales covered by this contract, or any tax assessed on the 
Carrier's possession of, interest in, or use of property, title to which 
is in the U.S. Government.
    (c) Unless otherwise provided in this contract, the contract price 
includes all applicable taxes and duties, except taxes and duties that 
the Government of the United States and the government of the country 
concerned have agreed shall not be applicable to expenditures in such 
country by or on behalf of the United States.
    (d) The contract price shall be increased by the amount of any 
after-imposed tax or of any tax or duty specifically excluded from the 
contract price by a provision of this contract that the Carrier is 
required to pay or bear, including any interest or penalty, if the 
Carrier states in writing that the contract price does not include any 
contingency for such tax and if liability for such tax, interest, or 
penalty was not incurred through the Carrier's fault, negligence, or 
failure to follow instructions of the Contracting Officer or to comply 
with the provisions of paragraph (i) below.
    (e) The contract price shall be decreased by the amount of any 
after-relieved tax, including any interest or penalty. The Government of 
the United States shall be entitled to interest received by the Carrier 
incident to a refund of taxes to the extent that such interest was 
earned after the Carrier was paid by the Government of the United States 
for such taxes. The Government of the United States shall be entitled to 
repayment of any penalty refunded to the Carrier to the extent that the 
penalty was paid by the Government.
    (f) The contract price shall be decreased by the amount of any tax 
or duty, other than an excepted tax, that was included in the contract 
and that the Carrier is required to pay or bear, or does not obtain a 
refund of, through the Carrier's fault, negligence, or failure to follow 
instructions of the Contracting Officer or to comply with the provisions 
of paragraph (i) below.
    (g) No adjustment shall be made in the contract price under this 
clause unless the amount of the adjustment exceeds $250.
    (h) If the Carrier obtains a reduction in tax liability under the 
United States Internal Revenue Code (Title 26, U.S. Code) because of the 
payment of any tax or duty that either was included in the contract 
price or was the basis of an increase in the contract price, the amount 
of the reduction shall be paid or credited to the Government of the 
United States as the Contracting Officer directs.
    (i) The Carrier shall take all reasonable action to obtain exemption 
from or refund of any taxes or duties, including interest or penalty, 
from which the United States Government, the Carrier, any subcontractor, 
or the transactions covered by this contract are exempt under the laws 
of the country concerned or its political subdivisions or which the 
governments of the United States and of the country concerned have 
agreed shall not be applicable to expenditures in such country by or on 
behalf of the United States.
    (j) The Carrier shall promptly notify the Contracting Officer of all 
matters relating to taxes or duties that reasonably may be expected to 
result in either an increase or decrease in the contract price and shall 
take appropriate action as the Contracting Officer directs. The contract 
price shall be equitably adjusted to cover the costs of action taken by 
the Carrier at the direction of the Contracting Officer, including any 
interest, penalty, and reasonable attorneys' fees.

[[Page 157]]

                             (End of clause)

[62 FR 47577, Sept. 10, 1997]



1652.232-70  Payments--community-rated contracts.

    As prescribed in 1632.171, the following clause shall be inserted in 
all community-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM, amounts assessed under FEHBAR 1609.7101-2, and amounts 
for obligations due pursuant to paragraph (b) of this clause, plus any 
payments made by OPM from the Contingency Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be due and payable not 
later than thirty days after receipt by the Fund. The Contracting 
Officer may authorize special non-recurring payments from the 
Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent that 
the reserves held by the Carrier are insufficient for that purpose.
    (f) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). The Carrier may, at its discretion, request funds from the 
Employees Health Benefits Fund to mitigate excessive costs in relation 
to premiums. If the Carrier requests funds from the Employees Health 
Benefits Fund to mitigate risk, it will be required to perform annual 
reconciliations for the duration of the demonstration project. OPM will 
reimburse the Carrier's costs significantly in excess of the premiums 
first from the Carrier's demonstration project Contingency Reserve and 
then from the Employees Health Benefits Fund Administrative Reserve. 
After the final accounting, OPM will place any surplus demonstration 
project premiums in the regular Contingency Reserves of all carriers 
continuing in the FEHB Program for the contract year following the year 
in which the demonstration project ends. Credit will be in proportion to 
the amount of subscription charges paid and accrued to each carrier's 
plan for the last year of the demonstration project.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14360, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 36388, 
June 8, 2000]



1652.232-71  Payments--experience-rated contracts.

    As prescribed in 1632.172, the following clause shall be inserted in 
all experience-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the Plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM and amounts for obligations due pursuant to paragraph 
(b) of this clause, plus any payments made by OPM from the Contingency 
Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be made available for 
carrier drawdown not later than thirty days after receipt by the Fund. 
The Contracting Officer may authorize special non-recurring payments 
from the Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent

[[Page 158]]

that the Carrier reserves are insufficient for that purpose.
    (f) Exception for the 3-Year DoD Demonstration Project (10 U.S.C. 
1108). The Carrier will perform a final reconciliation of revenue and 
costs for the demonstration project group at the end of the 
demonstration project. OPM will reimburse the Carrier's costs in excess 
of the premiums first from the Carrier's demonstration project 
Contingency Reserve and then from the Employees Health Benefits Fund 
Administrative Reserve. After the final accounting, OPM will place any 
surplus demonstration project premiums in the regular Contingency 
Reserves of all carriers continuing in the FEHB Program for the contract 
year following the year in which the demonstration project ends. Credit 
will be in proportion to the amount of subscription charges paid and 
accrued to each carrier's plan for the last year of the demonstration 
project.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14361, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 64 FR 36274, 
July 6, 1999; 65 FR 36388, June 8, 2000]



1652.232-72  Non-commingling of FEHBP funds.

    As prescribed in 1632.772, the following clause shall be inserted in 
all contracts based on cost analysis.

                   Non-Commingling of Funds (JAN 1991)

    (a) The Carrier and/or its underwriter shall keep all FEHBP funds 
for this contract (cash and investments) physically separate from funds 
obtained from other sources. Accounting for such FEHBP funds shall not 
be based on allocations or other sharing mechanisms and shall agree with 
the Carrier's accounting records.
    (b) In certain instances the physical separation of FEHBP funds may 
not be practical or desirable. In such cases, the Carrier may request a 
waiver from this requirement from the Contracting Officer. The waiver 
shall be requested in advance and the Carrier shall demonstrate that 
accounting techniques have been established that will clearly measure 
FEHBP cash and investment income (i.e., subsidiary ledgers). 
Reconciliations between amounts reported and actual amounts shown in 
accounting records shall be provided as supporting schedules to the 
Annual Accounting Statements.
    (c) The Carrier shall incorporate this clause in all subcontracts 
that exceed $25,000 and shall substitute ``contractor'' or other 
appropriate reference for ``Carrier and/or its underwriter.''

                             (End of clause)

[52 FR 16044, May 1, 1987. Redesignated at 53 FR 51784, Dec. 23, 1988, 
and amended at 55 FR 27418, July 2, 1990]



1652.232-73  Approval for the Assignment of Claims.

    As prescribed in 1632.806-70, the following clause shall be inserted 
in all FEHBP contracts:

              Approval for Assignment of Claims (JAN 1991)

    (a) Notwithstanding the provisions of section 5.35, (FAR 52.232-23) 
Assignment of Claims, the Carrier shall not make any assignment under 
the Assignment of Claims Act without the prior written approval of the 
Contracting Officer.
    (b) Unless a different period is specified in the Contracting 
Officer's written approval, an assignment shall be in force only for a 
period f 1 year from the date of the Contracting Officer's approval. 
However, assignments may be renewed upon their expiration.

                             (End of clause)

[55 FR 27418, July 2, 1990]



1652.243-70  Changes--Negotiated benefits contracts.

    As prescribed in section 1643.205-70, the following clause shall be 
inserted in all FEHBP contracts.

            Changes--Negotiated Benefits Contracts (JAN 1998)

    (a) The Contracting Officer may at any time, by written order, and 
without notice to the sureties, if any, make changes within the general 
scope of this contract in any one or more of the following:
    (1) Description of services to be performed.
    (2) Time of performance (i.e., hours of the day, days of the week, 
etc.).
    (3) Place of performance of the services.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, whether or not changed by the order, the Contracting 
Officer shall make an equitable adjustment in the contract price, the 
delivery schedule, or both, and shall modify the contract.
    (c) The Carrier must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the written order. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a proposal submitted 
before final payment of the contract.

[[Page 159]]

    (d) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
Carrier from proceeding with the contract as changed.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



1652.244-70  Subcontracts.

    As prescribed by 1644.270, the following clause shall be inserted in 
all FEHBP contracts based on cost analysis (experience rated):

                         Subcontracts (JAN 1998)

    (a) The Carrier shall notify the Contracting Officer reasonably in 
advance of entering into any subcontract, or any subcontract 
modification, or as otherwise specified by this contract, if both the 
amount of the subcontract or modification charged to the FEHB Program 
exceeds $100,000 and is at least 25 percent of the total cost of the 
subcontract.
    (b) The advance notification required by paragraph (a) of this 
clause shall include the information specified below:
    (1) A description of the supplies or services to be subcontracted;
    (2) Identification of the type of subcontract to be used;
    (3) Identification of the proposed subcontract and an explanation of 
why and how the proposed subcontractor was selected, including the 
competition obtained;
    (4) The proposed subcontract price and the Carrier's cost or price 
analysis;
    (5) The subcontractor's current, complete, and accurate cost or 
pricing data and Certificate of Current Cost or Pricing Data, if 
required by other contract provisions;
    (6) The subcontractor's Disclosure Statement or Certificate relating 
to Cost Accounting Standards when such data are required by other 
provisions of this contract; and
    (7) A negotiation memorandum reflecting--
    (i) The principal elements of the subcontract price negotiations;
    (ii) The most significant consideration controlling establishment of 
initial or revised prices;
    (iii) The reason cost or pricing data were or were not required;
    (iv) The extent, if any, to which the Carrier did not rely on the 
subcontractor's cost or pricing data in determining the price objective 
and in negotiating the final price;
    (v) The extent to which it was recognized in the negotiation that 
the subcontractor's cost or pricing data were not accurate, complete, or 
current; the action taken by the Carrier and the subcontractor; and the 
effect of any such defective data on the total price negotiated;
    (vi) The reasons for any significant difference between the 
Carrier's price objective and the price negotiated; and
    (vii) A complete explanation of the incentive fee or profit plan 
when incentives are used. The explanation shall identify each critical 
performance element, management decisions used to quantify each 
incentive element, reasons for the incentives, and a summary of all 
trade-off possibilities considered.
    (c) The Carrier shall obtain the Contracting Officer's written 
consent before placing any subcontract for which advance notification is 
required under paragraph (a) of this clause. However, the Contracting 
Officer may ratify in writing any such subcontract. Ratification shall 
constitute the consent of the Contracting Officer.
    (d) The Contracting Officer may waive the requirement for advance 
notification and consent required by paragraphs (a), (b), and (c) of 
this clause where the Carrier and subcontractor submit an application or 
renewal as a contractor team arrangement as defined in FAR subpart 9.6 
and--
    (1) The Contracting Officer evaluated the arrangement during 
negotiation of the contract or contract renewal; and
    (2) The subcontractor's price and/or costs were included in the 
plan's rates that were reviewed and approved by the Contracting Officer 
during negotiation of the contract or contract renewal.
    (e) Unless the consent or approval specifically provides otherwise, 
consent by the Contracting Officer to any subcontract shall not 
constitute a determination (1) of the acceptability of any subcontract 
terms or conditions; (2) of the allowability of any cost under this 
contract; or (3) to relieve the Carrier of any responsibility for 
performing this contract.
    (f) No subcontract placed under this contract shall provide for 
payment on a cost-plus-a-percentage-of-cost basis. Any fee payable under 
cost reimbursement type subcontracts shall not exceed the fee 
limitations in FAR 15.404-4(c)(4)(i). Any profit or fee payable under a 
subcontract shall be in accordance with the provision of subpart 3.7, 
Service charge.
    (g) The Carrier shall give the Contracting Officer immediate written 
notice of any action or suit filed and prompt notice of any claim made 
against the Carrier by any subcontractor or vendor that, in the opinion 
of the Carrier, may result in litigation related in any way to this 
contract with respect to which the Carrier may be entitled to 
reimbursement from the Government.

[[Page 160]]

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 62 
FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998]



1652.245-70  Government property (negotiated benefits contracts).

    As prescribed in section 1645.303-70, the following clause shall be 
inserted in all FEHBP contracts.

     Government Property (Negotiated Benefits Contracts) (JAN 1998)

    (a) Government-furnished property. (1) The Government shall deliver 
to the Carrier, for use in connection with and under the terms of this 
contract, the Government-furnished property described in this contract 
together with any related data and information that the Carrier may 
request and is reasonably required for the intended use of the property 
(hereinafter referred to as ``Government-furnished property'').
    (2) The delivery or performance dates for this contract are based 
upon the expectation that Government-furnished property suitable for use 
(except for property furnished ``as-is'') will be delivered to the 
Carrier at the times stated in this contract or, if not so stated, in 
sufficient time to enable the Carrier to meet the contract's performance 
dates.
    (3) If Government-furnished property is received by the Carrier in a 
condition not suitable for the intended use, the Carrier shall, upon 
receipt of it, notify the Contracting Officer, detailing the facts, and, 
as directed by the Contracting Officer and at Government expense, either 
repair, modify, return, or otherwise dispose of the property. After 
completing the directed action and upon written request of the Carrier, 
the Contracting Officer shall make an equitable adjustment as provided 
in paragraph (h) of this clause.
    (b) Changes in Government-furnished property. (1) The Contracting 
Officer may, by written notice, (i) decrease the Government-furnished 
property provided or to be provided under this contract, or (ii) 
substitute other Government-furnished property for the property to be 
provided by the Government, or to be acquired by the Carrier for the 
Government, under this contract. The Carrier shall promptly take such 
action as the Contracting Officer may direct regarding the removal, 
shipment, or disposal of the property covered by such notice.
    (2) Upon the Carrier's written request, the Contracting Officer 
shall make an equitable adjustment to the contract in accordance with 
paragraph (h) of this clause, if the Government has agreed in this 
contract to make the property available for performing this contract and 
there is any--
    (i) Decrease or substitution in this property pursuant to 
subparagraph (b)(1) above; or
    (ii) Withdrawal of authority to use this property, if provided under 
any other contract or lease.
    (c) Title in Government property. (1) The Government shall retain 
title to all Government-furnished property.
    (2) All Government-furnished property and all property acquired by 
the Carrier, title to which vests in the Government under this paragraph 
(collectively referred to as ``Government property''), are subject to 
the provisions of this clause. Title to Government property shall not be 
affected by its incorporation into or attachment to any property not 
owned by the Government, nor shall Government property become a fixture 
or lose its identity as personal property by being attached to any real 
property.
    (d) Use of Government property. The Government property shall be 
used only for performing this contract, unless otherwise provided in 
this contract or approved by the Contracting Officer.
    (e) Property administration. (1) The Carrier shall be responsible 
and accountable for all Government property provided under this contract 
and shall comply with Federal Acquisition Regulation (FAR) subpart 45.5, 
as in effect on the date of this contract.
    (2) The Carrier shall establish and maintain a program for the use, 
maintenance, repair, protection, and preservation of Government property 
in accordance with sound industrial practice and the applicable 
provisions of subpart 45.5 of the FAR.
    (3) If damage occurs to Government property, the risk of which has 
been assumed by the Government under this contract, the Government shall 
replace the items or the Carrier shall make such repairs as the 
Government directs. However, if the Carrier cannot effect such repairs 
within the time required, the Carrier shall dispose of the property as 
directed by the Contracting Officer. When any property for which the 
Government is responsible is replaced or repaired, the Contracting 
Officer shall make an equitable adjustment in accordance with paragraph 
(h) of this clause.
    (4) The Carrier represents that the contract price does not include 
any amount for repairs or replacement for which the Government is 
responsible. Repair or replacement of property for which the Carrier is 
responsible shall be accomplished by the Carrier at its own expense.
    (f) Access. The Government and all its designees shall have access 
at all reasonable times to the premises in which any Government property 
is located for the purpose of inspecting the Government property.
    (g) Risk of loss. Unless otherwise provided in this contract, the 
Carrier assumes the risk of, and shall be responsible for, any loss

[[Page 161]]

or destruction of, or damage to, Government property upon its delivery 
to the Carrier. However, the Carrier is not responsible for reasonable 
wear and tear to Government property or for Government property properly 
consumed in performing this contract.
    (h) Equitable adjustment. When this clause specifies an equitable 
adjustment, it shall be made to any affected contract provision in 
accordance with the procedures of the Changes clause. When appropriate, 
the Contracting Officer may initiate an equitable adjustment in favor of 
the Government. The right to an equitable adjustment shall be the 
Carrier's exclusive remedy. The Government shall not be liable to suit 
for breach of contract for--
    (1) Any delay in delivery of Government-furnished property;
    (2) Delivery of Government-furnished property in a condition not 
suitable for its intended use;
    (3) A decrease in or substitution of Government-furnished property; 
or
    (4) Failure to repair or replace Government property for which the 
Government is responsible.
    (i) Final accounting and disposition of Government property. Upon 
completing this contract, or at such earlier dates as may be fixed by 
the Contracting Officer, the Carrier shall submit, in a form acceptable 
to the Contracting Officer, inventory schedules covering all items of 
Government property (including any resulting scrap) not consumed in 
performing this contract or delivered to the Government. The Carrier 
shall prepare for shipment, deliver f.o.b. origin, or dispose of the 
Government property as may be directed or authorized by the Contracting 
Officer. The net proceeds of any such disposal shall be credited to the 
contract price or shall be paid to the Government as the Contracting 
Officer directs.
    (j) Abandonment and restoration of Carrier's premises. Unless 
otherwise provided herein, the Government--
    (1) May abandon any Government property in place, at which time all 
obligations of the Government regarding such abandoned property shall 
cease; and
    (2) Has no obligation to restore or rehabilitate the Carrier's 
premises under any circumstances (e.g., abandonment, disposition upon 
completion of need, or upon contract completion). However, if the 
Government-furnished property is withdrawn or is unsuitable for the 
intended use, or if other Government property is substituted, then the 
equitable adjustment under paragraph (h) of this clause may properly 
include restoration or rehabilitation costs.
    (k) Communications. All communications under this clause shall be in 
writing.
    (l) Overseas contracts. If this contract is to be performed outside 
of the United States of America, its territories, or possessions, the 
words ``Government'' and ``Government-furnished'' (wherever they appear 
in this clause) shall be construed as ``United States Government'' and 
``United States Government-furnished'', respectively.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



1652.246-70  FEHB Inspection.

    As prescribed in 1646.301, the following clause shall be inserted in 
all FEHBP contracts:

                       FEHB Inspection (JAN 1991)

    (a) The Government or its agent has the right to inspect and 
evaluate the work performed or being performed under the contract, and 
the premises where the work is being performed, at all reasonable times 
and in a manner that will not unduly delay the work. If the Government 
or its agent performs inspection or evaluation on the premises of the 
Carrier or a subcontractor, the Carrier shall furnish and require the 
subcontractor to furnish all reasonable facilities and assistance for 
the safe and convenient performance of these duties.
    (b) The Carrier shall insert this clause in all subcontracts for 
underwriting and administrative services and shall substitute 
``Contractor'' or other appropriate reference for the term ``Carrier.''

                             (End of clause)

[55 FR 27418, July 2, 1990]



1652.249-70  Renewal and withdrawal of approval.

    As prescribed in 1649.101-70, the following clause shall be inserted 
in all FEHBP contracts:

              Renewal and Withdrawal of Approval (JAN 1991)

    (a) Pursuant to 5 U.S.C. 8902(a), the contract renews automatically 
for a term of 1 year each January 1st, unless written notice of intent 
not to renew is given either by OPM or the Carrier not less than 60 
calendar days before the renewal date, or unless modified by mutual 
agreement.
    (b) This contract also may be terminated at other times by order of 
OPM pursuant to 5 U.S.C. 8902(e). After OPM notifies the Carrier of its 
intent to terminate the contract, OPM may take action as it deems 
necessary to protect the interests of members, including but not limited 
to--
    (1) Suspending new enrollments under the contract;

[[Page 162]]

    (2) Advising enrollees of the asserted deficiencies; and
    (3) Providing enrollees an opportunity to transfer to another Plan.
    (c) OPM may, after proper notice, terminate the contract at the end 
of the contract term if it finds that the Carrier did not have at least 
300 enrollees enrolled in its plan at any time during the two preceding 
contract terms.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 57 
FR 19388, May 6, 1992]



1652.249-71  FEHBP termination for convenience of the government--negotiated benefits contracts.

    As prescribed in section 1649.101-71, the following clause shall be 
inserted in all FEHBP contracts.

FEHBP Termination for Convenience of the Government--Negotiated Benefits 
                          Contracts (JAN 1998)

    (a) The Government may terminate performance of work under this 
contract in whole or, from time to time, in part if the Contracting 
Officer determines that a termination is in the Government's interest. 
The Contracting Officer shall terminate by delivering to the Carrier a 
Notice of Termination specifying the extent of terminating and the 
effective date.
    (b) After receipt of a Notice of Termination, and except as directed 
by the Contracting Officer, the Carrier shall immediately proceed with 
the following obligations, regardless of any delay in determining or 
adjusting any amounts due under this clause:
    (1) Stop work as specified in the notice.
    (2) Place no further subcontracts except as necessary to complete 
the continued portion of the contract.
    (3) Terminate all subcontracts to the extent they relate to the work 
terminated.
    (4) Assign to the Government, as directed by the Contracting 
Officer, all right, title, and interest of the Carrier under the 
subcontracts terminated, in which case the Government shall have the 
right to settle or to pay any termination settlement proposal arising 
out of those terminations.
    (5) With approval or ratification to the extent required by the 
Contracting Officer, settle all outstanding liabilities and termination 
settlement proposals arising from the termination of subcontracts; the 
approval or ratification will be final for purposes of this clause.
    (6) As directed by the Contracting Officer, deliver to the 
Government any data, reports, or studies that, if the contract had been 
completed, would be required to be furnished to the Government.
    (7) Complete performance of the work not terminated.
    (c) After termination, the Carrier shall submit a final termination 
settlement proposal to the Contracting Officer in the form and with the 
certification prescribed by the Contracting Officer. The Carrier shall 
submit the proposal promptly, but no later than 1 year from the 
effective date of termination, unless extended in writing by the 
Contracting Officer upon written request of the Carrier within this 1-
year period. However, if the Contracting Officer determines that the 
facts justify it, a termination settlement proposal may be received and 
acted on after 1 year or any extension. If the Carrier fails to submit 
the proposal within the time allowed, the Contracting Officer may 
determine, on the basis of information available, the amount, if any, 
due the Carrier because of the termination and shall pay the amount 
determined.
    (d) Subject to paragraph (c) of this clause, the Carrier and the 
Contracting Officer may agree upon the whole or any part of the amount 
to be paid or remaining to be paid because of the termination. The 
amount may include a reasonable allowance for profit on work done. 
However, the agreed amount, whether under this paragraph (d) or 
paragraph (e) of this clause, exclusive of costs shown in subparagraph 
(e)(3) of this clause, may not exceed the total contract price as 
reduced by (1) the amount of payments previously made and (2) the 
contract price of work not terminated. The contract shall be modified, 
and the Carrier paid the agreed amount. Paragraph (e) of this clause 
shall not limit, restrict, or affect the amount that may be agreed upon 
to be paid under this paragraph.
    (e) If the Carrier and the Contracting Officer fail to agree on the 
whole amount to be paid because of the termination of work, the 
Contracting Officer shall pay the Carrier the amounts determined by the 
Contracting Officer as follows, but without duplication of any amounts 
agreed on under paragraph (d) above:
    (1) The contract price for completed services accepted by the 
Government not previously paid for.
    (2) The total of--
    (i) The costs incurred in the performance of the work terminated, 
including initial costs and preparatory expense allocable thereto, but 
excluding any costs attributable to services paid or to be paid under 
paragraph (e)(1) of this clause;
    (ii) The cost of settling and paying termination settlement 
proposals under terminated subcontracts that are properly chargeable to 
the terminated portion of the contract if not included in subdivision 
(e)(2)(i) of this clause; and

[[Page 163]]

    (iii) A sum, as profit on subdivision (e)(2)(i) of this clause, 
determined by the Contracting Officer under 49.202 of the Federal 
Acquisition Regulation, in effect on the date of this contract, to be 
fair and reasonable.
    (3) The reasonable costs of settlement of the work terminated, 
including--
    (i) Accounting, legal, clerical, and other expenses reasonably 
necessary for the preparation of termination settlement proposals and 
supporting data;
    (ii) The termination and settlement of subcontracts (excluding the 
amounts of such settlements); and
    (f) The cost principles and procedures of part 31 of the Federal 
Acquisition Regulation, in effect on the date of this contract, shall 
govern all costs claimed, agreed to, or determined under this clause.
    (g) The Carrier shall have the right of appeal, under the Disputes 
clause, from any determination made by the Contracting Officer under 
paragraph (c), (e), or (i) of this clause, except that if the Carrier 
failed to submit the termination settlement proposal or request for 
equitable adjustment within the time provided in paragraph (c) or (i), 
respectively, and failed to request a time extension, there is no right 
of appeal.
    (h) In arriving at the amount due the Carrier under this clause, 
there shall be deducted--
    (1) All unliquidated advance or other payments to the Carrier under 
the terminated portion of this contract;
    (2) Any claim which the Government has against the Carrier under 
this contract; and
    (i) If the termination is partial, the Carrier may file a proposal 
with the Contracting Officer for an equitable adjustment of the price(s) 
of the continued portion of the contract. The Contracting Officer shall 
make any equitable adjustment agreed upon. Any proposal by the Carrier 
for an equitable adjustment under this clause shall be requested within 
90 days from the effective date of termination unless extended in 
writing by the Contracting Officer.
    (j)(1) The Government may, under the terms and conditions it 
prescribes, make partial payments and payments against costs incurred by 
the Carrier for the terminated portion of the contract, if the 
Contracting Officer believes the total of these payments will not exceed 
the amount to which the Carrier will be entitled.
    (2) If the total payments exceed the amount finally determined to be 
due, the Carrier shall repay the excess to the Government upon demand, 
together with interest computed at the rate established by the Secretary 
of the Treasury under 50 U.S.C. App. 1215(b)(2). Interest shall be 
computed for the period from the date the excess payment is received by 
the Carrier to the date the excess is repaid.
    (k) Unless otherwise provided in this contract or by statute, the 
Carrier shall maintain all records and documents relating to the 
terminated portion of this contract for 3 years after final settlement. 
This includes all books and other evidence bearing on the Carrier's 
costs and expenses under this contract. The Carrier shall make these 
records and documents available to the Government, at the Carrier's 
office, at all reasonable times, without any direct charge. If approved 
by the Contracting Officer, photographs, microphotographs, or other 
authentic reproductions may be maintained instead of original records 
and documents.

                             (End of clause)

[62 FR 47579, Sept. 10, 1997]



1652.249-72  FEHBP termination for default--negotiated benefits contracts.

    As prescribed in Sec. 1649.101-72, the following clause shall be 
inserted in all FEHBP contracts.

 FEHBP Termination for Default--Negotiated Benefits Contracts (JAN 1998)

    (a) (1) The Government may, subject to paragraphs (c) and (d) below, 
by written notice of default to the Carrier, terminate this contract in 
whole or in part if the Carrier fails to--
    (i) Perform the services within the time specified in this contract 
or any extension;
    (ii) Make progress, so as to endanger performance of this contract 
(but see subparagraph (a)(2) below); or
    (iii) Perform any of the other provisions of this contract (but see 
subparagraph (a)(2) below).
    (2) The Government's right to terminate this contract under 
subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Carrier 
does not cure such failure within 10 days (or more if authorized in 
writing by the Contracting Officer) after receipt of the notice from the 
Contracting Officer specifying the failure.
    (b) If the Government terminates this contract in whole or in part, 
it may acquire, under the terms and in the manner the Contracting 
Officer considers appropriate, supplies or service similar to those 
terminated, and the Carrier will be liable to the Government for any 
excess costs for those supplies or services. However, the Carrier shall 
continue the work not terminated.
    (c) Except for defaults of subcontractors at any tier, the Carrier 
shall not be liable for any excess costs if the failure to perform the 
contract arises from causes beyond the control and without the fault or 
negligence of the Carrier. Examples of such causes include (1) acts of 
God or of the public enemy, (2)

[[Page 164]]

acts of the Government in either its sovereign or contractual capacity, 
(3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) 
strikes, (8) freight embargoes, and (9) unusually severe weather. In 
each instance the failure to perform must be beyond the control and 
without the fault or negligence of the Carrier.
    (d) If the failure to perform is caused by the default of a 
subcontractor at any tier, and if the cause of the default is beyond the 
control of both the Carrier and subcontractor, and without the fault or 
negligence of either, the Carrier shall not be liable for any excess 
costs for failure to perform, unless the subcontracted supplies or 
services were obtainable from other sources in sufficient time for the 
Carrier to meet the required delivery schedule.
    (e) If this contract is terminated for default, the Government may 
require the Carrier to transfer title and deliver to the Government, as 
directed by the Contracting Officer, any completed or partially 
completed information and contract rights that the Carrier has 
specifically produced or acquired for the terminated portion of this 
contract.
    (f) If, after termination, it is determined that the Carrier was not 
in default, or that the default was excusable, the rights and 
obligations of the parties shall be the same as if the termination had 
been issued for the convenience of the Government.
    (g) The rights and remedies of the Government in this clause are in 
addition to any other rights and remedies provided by law or under this 
contract.

                             (End of clause)

[62 FR 47580, Sept. 10, 1997]



                   Subpart 1652.3--FEHBP Clause Matrix



1652.370  Use of the matrix.

    (a) The matrix in this section lists the FAR and FEHBAR clauses to 
be used with contracts based on cost analysis and contracts based on a 
combination of cost and price analysis. Carriers shall submit initial 
applications and requests for renewals on the basis that the new 
contract or contract renewal will include the clauses indicated.
    (b) Certain contract clauses are mandatory for FEHBP contracts. 
Other clauses are to be used only when made applicable by pertinent 
sections of the FAR or FEHBAR. An ``M'' in the ``Use Status'' column 
indicates that the clause is mandatory. An ``A'' indicates that the 
clause is to be used only when the applicable conditions are met.
    (c) Clauses are incorporated in the contract either in full text or 
by reference. If the full text is to be used, the matrix indicates a 
``T''. If the clause is incorporated by reference, the matrix indicates 
an ``R''.

                                                                   FEHBP Clause Matrix
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                   Use with    Use with
                                                                                                                          Use     experience   community
               Clause No.                                Text reference                             Title               status       rated       rated
                                                                                                                                   contracts   contracts
--------------------------------------------------------------------------------------------------------------------------------------------------------
FAR 52.202-1                             FAR 2.201                                       Definitions................          M           T           T
FAR 52.203-3                             FAR 3.202                                       Gratuities.................          M           T           T
FAR 52.203-5                             FAR 3.404                                       Covenant Against Contingent          M           T           T
                                                                                          Fees.
FAR 52.203-7                             FAR 3.502-3                                     Anti-Kickback Procedures...          M           T           T
FAR 52.203-12                            FAR 3.808(b)                                    Limitation on Payments to            M           T           T
                                                                                          Influence Certain Federal
                                                                                          Transactions.
1652.203-70                              1603-7003                                       Misleading, Deceptive, or            M           T           T
                                                                                          Unfair Advertising.
1652.204-70                              1604.705                                        Contractors Records                  M           T           T
                                                                                          Retention.
1652.204-71                              1604.7001                                       Coordination of Benefits...          M           T           T
1652.204-72                              1604.7101                                       Filing Health Benefit                M           T           T
                                                                                          Claims/Court Review of
                                                                                          Disputed Claims.
1652.204-73                              1604.970                                        Taxpayer Identification              M           T           T
                                                                                          Number.

[[Page 165]]

 
FAR 52.209-6                             FAR 9.409(b)                                    Protecting the Government's          M           T           T
                                                                                          Interest When
                                                                                          Subcontracting With
                                                                                          Contractors Debarred,
                                                                                          Suspended, or Proposed for
                                                                                          Debarment.
FAR 52.215-2                             FAR 15.209(b)                                   Audit & Records--                    M           T           T
                                                                                          Negotiation.
FAR 52.215-10                            FAR 15.408(b)                                   Price Reduction for                  M           T   ..........
                                                                                          Defective Cost or Pricing
                                                                                          Data.
FAR 52.215-12                            FAR 15.408(d)                                   Subcontractor Cost or                M           T   ..........
                                                                                          Pricing Data.
FAR 52.215-15                            FAR 15.408(g)                                   Pension Adjustments and              M           T   ..........
                                                                                          Asset Reversions.
FAR 52.215-16                            FAR 15.408(h)                                   Facilities Capital Cost of           M           T   ..........
                                                                                          Money.
FAR 52.215-17                            FAR 15.408(i)                                   Waiver of Facilities                 A           T   ..........
                                                                                          Capital Cost of Money.
FAR 52.215-18                            FAR 15.408(j)                                   Reversion or Adjustment of           M           T   ..........
                                                                                          Plans for Postretirement
                                                                                          Benefits (PRB) Other Than
                                                                                          Pensions.
1652.215-70                              1615.804-72                                     Rate Reduction for                   M   ..........          T
                                                                                          Defective Pricing or
                                                                                          Defective Cost or Pricing
                                                                                          Data.
1652.215-71                              1615.805-71                                     Investment Income..........          M           T   ..........
1652.216-70                              1616.7001                                       Accounting and Price                 M           T           T
                                                                                          Adjustment.
1652.216-71                              1616.7002                                       Accounting and Allowable             M           T   ..........
                                                                                          Cost.
FAR 52.219-8                             FAR 19.708(a)                                   Utilization of Small                 M           T           T
                                                                                          Business Concerns.
FAR 52.222-1                             FAR 22.103-5(a)                                 Notice to the Government of          M           T           T
                                                                                          Labor Disputes.
FAR 52.222-3                             FAR 22.202                                      Convict Labor..............          M           T           T
FAR 52.222-4                             FAR 22.305                                      Contract Work Hours and              M           T           T
                                                                                          Safety Standards Act-
                                                                                          Overtime Compensation.
FAR 52.222-21                            FAR 22.810(a)(1)                                Prohibition of Segregated            M           T           T
                                                                                          Facilities.
FAR 52.222-26                            FAR 22.810(a)                                   Equal Opportunity..........          M           T           T
FAR 52.222-29                            FAR 22.810(g)                                   Notification of Visa Denial          A           T           T
FAR 52.222-35                            FAR 22.1308(a)                                  Affirmative Action for               M           T           T
                                                                                          Disabled Veterans and
                                                                                          Veterans of the Vietnam
                                                                                          Era.
FAR 52.222-36                            FAR 22.1408(a)                                  Affirmative Action for               M           T           T
                                                                                          Workers With Disabilities.

[[Page 166]]

 
FAR 52.222-37                            FAR 22.1308(b)                                  Employment Reports on                M           T           T
                                                                                          Disabled Veterans and
                                                                                          Veterans of the Vietnam
                                                                                          Era.
1652.222-70                              1622.103-70                                     Notice of Significant                M           T           T
                                                                                          Events.
FAR 52.223-2                             FAR 23.105(b)                                   Clean Air and Water........          A           T           T
FAR 52.223-6                             FAR 23.505                                      Drug-Free Workplace........          A           T           T
1652.224-70                              1624.104                                        Confidentiality of Records.          M           T           T
FAR 52.227-1                             FAR 27.201-2(a)                                 Authorization and Consent..          M           T           T
FAR 52.227-2                             FAR 27.202-2                                    Notice and Assistance                M           T           T
                                                                                          Regarding Patent and
                                                                                          Copyright Infringement.
FAR 52.229-3                             FAR 29.401-3                                    Federal, State and Local             M   ..........          T
                                                                                          Taxes.
FAR 52.229-4                             FAR 29.401-4                                    Federal, State and Local             M           T   ..........
                                                                                          Taxes (Noncompetitive
                                                                                          Contract).
FAR 52.229-5                             FAR 29.401-5                                    Taxes--Contracts Performed           A           T           T
                                                                                          in U.S. Possessions or
                                                                                          Puerto Rico.
1652.229-70                              FEHBAR 1629.402                                 Taxes--Foreign Negotiated            A           T           T
                                                                                          Benefits Contracts.
FAR 52.230-2                             FAR 30.201-4(a)(1)                              Cost Accounting Standards..          A           T           T
FAR 52.230-3                             FAR 30.201-4(b)(1)                              Disclosure and Consistency           A           T           T
                                                                                          of Cost Accounting
                                                                                          Practices.
FAR 52.230-6                             FAR 30.201-4(d)(1)                              Administration of Cost               A           T           T
                                                                                          Accounting Standards.
FAR 52.232-8                             FAR 32.111(c)(1)                                Discounts for Prompt                 M           T           T
                                                                                          Payment.
FAR 52.232-17                            FAR 32.617(a)                                   Interest...................          M           T           T
                                         Modification:
                                         1632.617
FAR 52.232-23                            FAR 32.806(a)(1)                                Assignment of Claims.......          A           T           T
FAR 52.232-33                            FAR 32.1103(a)                                  Payment by Electronic Funds          M           T           T
                                                                                          Transfer--Central
                                                                                          Contractor Registration.
1652.232-70                              1632.171                                        Payments--Community-Rated            A   ..........          T
                                                                                          Contracts.
1652.232-71                              1632.172                                        Payments--Experience-Rated           A           T   ..........
                                                                                          Contracts.
1652.232-72                              1632.772                                        Non-Commingling of FEHBP             M           T   ..........
                                                                                          Funds.
1652.232-73                              1632.806-70                                     Approval for Assignment of           M           T           T
                                                                                          Claims.
FAR 52.233-1                             FAR 33.215                                      Disputes...................          M           T           T
FAR 52.242-1                             FAR 42.802                                      Notice of Intent to                  M           T   ..........
                                                                                          Disallow Costs.

[[Page 167]]

 
FAR 52.242-3                             FAR 42.709-6                                    Penalties for Unallowable            M           T   ..........
                                                                                          Costs.
FAR 52.242-13                            FAR 42.903                                      Bankruptcy.................          M           T           T
1652.243-70                              1643.205-70                                     Changes--Negotiated                  M           T           T
                                                                                          Benefits Contracts.
FAR 52.244-5                             FAR 44.204(c)                                   Competition in                       M           T   ..........
                                                                                          Subcontracting.
FAR 52.244-6                             FAR 44.403                                      Subcontracts for Commercial          M           T   ..........
                                                                                          Items and commercial
                                                                                          components.
1652.244-70                              1644.270                                        Subcontracts...............          M           T   ..........
1652.245-70                              1645.303-70                                     Government Property                  M           T           T
                                                                                          (Negotiated Benefits
                                                                                          Contracts).
FAR 52.246-25                            FAR 6.805(a)(4)                                 Limitation of Liability--            M           T   ..........
                                                                                          Services.
1652.246-70                              1646.301                                        FEHB Inspection............          M           T           T
FAR 52.247-63                            FAR 47.405                                      Preference for U.S.-Flag             M           T           T
                                                                                          Air Carriers.
1652.249-70                              1649.101-70                                     Renewal and Withdrawal of            M           T           T
                                                                                          Approval.
1652.249-71                              1649.101-71                                     FEHBP Termination for                M           T           T
                                                                                          Convenience of the
                                                                                          Government--Negotiated
                                                                                          Benefits Contracts.
1652.249-72                              1649.101-72                                     FEHBP Termination for                M           T           T
                                                                                          Default--Negotiated
                                                                                          Benefits Contracts.
FAR 52.251-1                             FAR 51.107                                      Government Supply Sources..          A           T   ..........
FAR 52.252-4                             FAR 52.107(d)                                   Alterations in Contract....          A           T           T
FAR 52.252-6                             FAR 52.107(f)                                   Authorized Deviations in             M           T           T
                                                                                          Clauses.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 59 
FR 14767, Mar. 30, 1994; 62 FR 47580, Sept. 10, 1997; 62 FR 50435, 
Sept.25, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 63388, June 8, 2000]

[[Page 168]]



PART 1653--FORMS--Table of Contents




    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1653.000  FEHBP forms.

    The following forms specified in FAR subparts 53.2 and 53.3 are 
applicable to FEHBP acquisitions:

------------------------------------------------------------------------
       Part 53.2                Part 53.3               Form title
------------------------------------------------------------------------
53.201-1                 53.301-1402             SF 1402-Certificate of
                                                  Appointment.
53.203                   53.301-119              SF 119--Statement of
                                                  Contingent or Other
                                                  Fees.
53.204-2(a)              53.301-279              SF 279 FPDS--Individual
                                                  Contract Action Report
                                                  (over $10,000).
53.204-2(b)              53.301-281              SF 281 FPDS--Summary of
                                                  Contract Actions of
                                                  $10,000 or less.
53.229                   53.301-1094             SF 1094--U.S. Tax
                                                  Exemption Certificate.
53.229                   53.301-1094A            SF 1094A--Tax Exemption
                                                  Certificates
                                                  Accountability Record.
------------------------------------------------------------------------


[52 FR 16048, May 1, 1987, as amended at 62 FR 47583. Sept. 10, 1997]

[[Page 169]]



               CHAPTER 17--OFFICE OF PERSONNEL MANAGEMENT




                          (Parts 1700 to 1799)

  --------------------------------------------------------------------
Part                                                                Page
1733            Protests, disputes, and appeals.............         171

[[Page 171]]



PART 1733--PROTESTS, DISPUTES, AND APPEALS--Table of Contents




                  Subpart 1733.2--Disputes and Appeals

Sec.
1733.203 Applicability.
1733.203-70 Designation of the Interior Board of Contract Appeals to 
          decide OPM appeals.
1733 209 Suspected fraudulent claims.
1733.211 Contracting officer's decision.
1733.212 Contracting officer's duties upon appeal.
1733.214 Contract clause.

    Authority: 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 51 FR 44296, Dec. 9, 1986, unless otherwise noted.



                  Subpart 1733.2--Disputes and Appeals



1733.203  Applicability.

    (a) The Office of Personnel Management's (OPM) procurement executive 
shall make the determination prescribed under FAR 33.203(b).
    (b) Requests for determinations under paragraph (a) of this section 
shall be submitted by OPM's contracting officer through OPM's head of 
the contracting activity to the procurement executive for further 
action.



1733.203-70  Designation of the Interior Board of Contract Appeals to decide OPM appeals.

    (a) The Interior Board of Contract Appeals (IBCA) has been 
designated by the Director of OPM to consider and determine appeals from 
decisions of a contracting officer arising under a contract or relating 
to a contract made by OPM. This delegation governs disputes between OPM 
and its prime contractors and does not encompass any claim made by a 
third party beneficiary of, or by a subscriber to, a Federal employee 
insurance program.
    (b) The address of IBCA is 4015 Wilson Boulevard, Arlington, VA 
22203.
    (c) IBCA rules of procedure can be found in 43 CFR part 4.



1733.209  Suspected fraudulent claims.

    If the contractor is unable to support any part of the claim and 
there is evidence that the inability is attributable to 
misrepresentation of fact or to fraud on the part of the contractor, the 
contracting officer shall refer the matter through the head of the 
contracting activity to OPM's Offices of the Inspector General and the 
General Counsel.



1733.211  Contracting officer's decision.

    The written decision required by FAR 33.211(a)(4) shall include, in 
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to 
the Interior Board of Contract Appeals, 4015 Wilson Boulevard, 
Arlington, VA 22203, and its procedures under 43 CFR part 4. The IBCA 
optional small claims (expedited) procedures and accelerated procedures 
under 43 CFR 4.113 shall also be referenced as required by the FAR.



1733.212  Contracting officer's duties upon appeal.

    (a) When a notice of appeal has been received, the contracting 
officer shall endorse on the appeal the date of mailing (or the date of 
receipt if the notice was not mailed) and forward it to IBCA by 
certified mail within 5 days of receipt. OPM's Office of the General 
Counsel and the Department of the Interior's (DOI) Office of the 
Solicitor shall also be notified of the appeal by the contracting 
officer. 43 CFR 4.103.
    (b) The contracting officer shall prepare and transmit the 
documentation and information required by 43 CFR 4.104 in the form of an 
appeal file to IBCA, OPM's Office of the General Counsel, DOI's Office 
of the Solicitor, and appellant or appellant's counsel within 30 days 
after receipt of a notice of appeal or advice that an appeal has been 
docketed by IBCA.



1733.214  Contract clause.

    The Disputes clause contained in FAR 52.233-1 shall be used with its 
Alternate I in all OPM solicitations and contracts.

[[Page 173]]



        CHAPTER 18--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION




                          (Parts 1800 to 1899)

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


  Editorial Note: 1. Nomenclature changes to chapter 18 appear at 58 FR 
51136, Sept. 30, 1993 and 67 FR 30602, May 7, 2002.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1801            Federal acquisition regulations system......         175
1802            Definitions of words and terms..............         179
1803            Improper business practices and personal 
                    conflicts of interest...................         179
1804            Administrative matters......................         182
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
1805            Publicizing contract actions................         193
1806            Competition requirements....................         196
1807            Acquisition planning........................         199
1808            Required sources of supplies and services...         205
1809            Contractor qualifications...................         210
1811            Describing agency...........................         214
1812            Acquisition of commercial items.............         216
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1813            Simplified acquisition procedures...........         218
1814            Sealed bidding..............................         220
1815            Contracting by negotiation..................         222
1816            Types of contracts..........................         246
1817            Special contracting methods.................         257
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1819            Small business programs.....................         264
1822            Application of labor laws to government 
                    acquisitions............................         275

[[Page 174]]

1823            Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         279
1824            Protection of privacy and freedom of 
                    information.............................         282
1825            Foreign acquisition.........................         283
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1827            Patents, data, and copyrights...............         287
1828            Bonds and insurance.........................         296
1829            Taxes.......................................         300
1830            Cost accounting standards administration....         300
1831            Contract cost principles and procedures.....         302
1832            Contract financing..........................         304
1833            Protests, disputes, and appeals.............         309
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1834            Major system acquisition....................         312
1835            Research and development contracting........         312
1836            Construction and architect-engineer 
                    contracts...............................         318
1837            Service contracting.........................         321
1839            Acquisition of information technology.......         323
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1840

[Reserved]

1841            Acquisition of utility services.............         324
1842            Contract administration and audit services..         325
1843            Contract modifications......................         336
1844            Subcontracting policies and procedures......         338
1845            Government property.........................         340
1846            Quality assurance...........................         362
1847            Transportation..............................         369
1848            Value engineering...........................         371
1849            Termination of contracts....................         372
1850            Extraordinary contractual actions...........         374
1851            Use of government sources by contractors....         376
                     SUBCHAPTER H--CLAUSES AND FORMS
1852            Solicitation provisions and contract clauses         379
1853            Forms.......................................         451
             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
1871            Midrange procurement procedures.............         455
1872            Acquisitions of investigations..............         465

[[Page 175]]



                          SUBCHAPTER A--GENERAL



PART 1801--FEDERAL ACQUISITION REGULATIONS SYSTEM--Table of Contents




Sec.
1801.000 Scope of part.

              Subpart 1801.1--Purpose, Authority, Issuance

1801.103 Authority.
1801.104 Applicability.
1801.105 Issuance.
1801.105-1 Publication and code arrangement.
1801.105-2 Arrangement of regulations.
1801.106 OMB approval under the Paperwork Reduction Act.

                     Subpart 1801.2--Administration

1801.270 Amendment of the NFS.
1801.271 NASA procedures for FAR and NFS changes.
1801.272 Procurement Information Circulars.

             Subpart 1801.3--Agency Acquisition Regulations

1801.301 Policy.
1801.303 Publication and codification.

                 Subpart 1801.4--Deviations From the FAR

1801.400 Scope of subpart.
1801.471 Procedure for requesting deviations.

     Subpart 1801.6--Career Development, Contracting Authority, and 
                            Responsibilities

1801.601 General.
1801.602-3 Ratification of unauthorized commitments.
1801.603 Selection, appointment, and termination of appointment.
1801.603-2 Selection.
1801.670 Delegations to contracting officer's technical representatives 
          (COTRs).

               Subpart 1801.7--Determinations and Findings

1801.707 Signatory authority.
1801.770 Legal review.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40534, Aug. 5, 1996, unless otherwise noted.



1801.000  Scope of part.

    This part sets forth general information about the National 
Aeronautics and Space Administration (NASA) Federal Acquisition 
Regulations (FAR) Supplement, also referred to as the NFS.



              Subpart 1801.1--Purpose, Authority, Issuance



1801.103  Authority. (NASA supplements paragraph (a))

    (a) Under the following authorities, the Administrator has delegated 
to the Assistant Administrator for Procurement authority to prepare, 
issue, and maintain the NFS:
    (i) The National Aeronautics and Space Act of 1958 (Public Law 85-
568; 42 U.S.C. 2451 et seq.).
    (ii) 10 U.S.C. chapter 137.
    (iii) Other statutory authority.
    (iv) FAR subpart 1.3.



1801.104  Applicability.

    The NFS applies to all acquisitions as defined in FAR Part 2 except 
those expressly excluded by the FAR or this chapter.



1801.105  Issuance.



1801.105-1  Publication and code arrangement. (NASA supplements paragraphs (a) and (b))

    (a) The single official NASA-maintained version of the NFS is on the 
Internet (http://www.hq.nasa.gov/office/procurement/regs/nfstoc.htm).
    (b) The NFS is issued as chapter 18 of title 48, Code of Federal 
Regulations (CFR).

[61 FR 40534, Aug. 5, 1996, as amended at 64 FR 36606, July 7, 1999]



1801.105-2  Arrangement of regulations. (NASA supplements paragraph (b))

    (b)(1)(A) Numbering of NFS text implementing the FAR shall be the 
same as that of the related FAR text, except when the NFS coverage 
exceeds one paragraph. In such case the NFS text is numbered by skipping 
a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence. For 
example, two paragraphs implementing FAR 1.105-2(b)(1) are numbered 
1801.105-2(b)(1) (A) and (B),

[[Page 176]]

rather than (1) (i) and (ii). Further subdivision of the NFS 
implementing paragraphs would follow the prescribed sequence in FAR 
1.105(b)(2).
    (B) NFS text that supplements the FAR is numbered the same as its 
FAR counterpart with the addition of a number 70 and up. For example, 
NFS supplement of FAR subsection 1.105-3 is numbered 1801.105-370. 
Supplemental text exceeding one paragraph is numbered using the FAR 
1.105-2(b)(2) prescribed numbering sequence without skipping a unit.
    (2) Subdivision numbering below the fourth level repeats the 
numbering sequence using italicized letters and numbers.



1801.106  OMB approval under the Paperwork Reduction Act. (NASA paragraphs (1) and (2))

    (1) NFS requirements. The following OMB control numbers apply:

------------------------------------------------------------------------
                                                                 OMB
                        NFS Segment                            Control
                                                                 No.
------------------------------------------------------------------------
1804.470...................................................    2700-0098
1804.74....................................................    2700-0097
1819.......................................................    2700-0073
1819.72....................................................    2700-0078
1823.271...................................................    2700-0106
1827.......................................................    2700-0052
1831.......................................................    2700-0080
1843.......................................................    2700-0054
1843.71....................................................    2700-0094
NF 533.....................................................    2700-0003
NF 1018....................................................    2700-0017
------------------------------------------------------------------------

    (2) Solicitations and contracts. Various requirements in a 
solicitation or contract, generally in the statement of work, are not 
tied to specific paragraphs cleared in paragraph (1) of this section, 
yet require information collection or recordkeeping. The following OMB 
control numbers apply to these requirements: 2700-0086 (acquisitions up 
to $25,000), 2700-0087 (solicitations that may result in bids or 
proposals not exceeding $500,000), 2700-0085 (solicitations that may 
result in bids or proposals exceeding $500,000), 2700-0088 (contracts 
not exceeding $500,000), and 2700-0089 (contracts exceeding $500,000).

[61 FR 40534, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 65 
FR 46627, July 31, 2000; 68 FR 43333, July 22, 2003]



                      Subpart 1801.2--Aministration



1801.270  Amendment of the NFS.

    (a) The NFS is amended by publishing changes in the Federal 
Register. These changes are then incorporated into the NASA-maintained 
Internet version of the NFS through Procurement Notices (PNs). PNs are 
numbered consecutively, prefixed by the last two digits of the calendar 
year of issuance of the current edition of the NFS.
    (b) Compliance with a revision to the NFS shall be in accordance 
with the PN containing the revision. Unless otherwise stated, 
solicitations that have been issued, and bilateral agreements for which 
negotiations have been completed, before the receipt of new or revised 
contract clauses need not be amended to include the new or revised 
clauses if including them would unduly delay the acquisition.

[64 FR 36606, July 7, 1999]



1801.271  NASA procedures for FAR and NFS changes.

    (a) Informal suggestions for improving the NFS, including correction 
of errors, should be directed to the Headquarters Office of Procurement 
(Code HK).
    (b) (1) Formal requests for changes to the FAR or the NFS should be 
written and contain
    (i) A description of the problem the suggested revision is designed 
to cure,
    (ii) The revision in the form of a marked-up copy of the current FAR 
or NFS language or the text of any additional language,
    (iii) The consequences of making no change and the benefits to be 
expected from a change, and
    (iv) Any other information necessary for understanding the 
situation, such as relationship between FAR and NFS coverage, legal 
opinions, coordination with other offices, and existing agreements.
    (2) Formal requests for FAR and NFS changes should be sent to Code 
HK. Requests from Headquarters offices should originate at the division 
level or higher, while installation requests should be signed at the 
procurement officer or higher level.

[[Page 177]]



1801.272  Procurement Information Circulars.

    (a) The Procurement Information Circular (PIC) is used for internal 
dissemination of procurement-related information and directives not 
suitable for inclusion in the NFS. Code HK is responsible for issuing 
PICs.
    (b) PICs are numbered on a calendar year basis, beginning with 
number 1, prefixed by the last two digits of the year.



             Subpart 1801.3--Agency Acquisition Regulations



1801.301  Policy. (NASA supplements paragraphs (a) and (b))

    (a)(2) Heads of NASA field installations may prescribe policies and 
procedures that do not have a significant effect beyond the internal 
operating procedures of their installations. All other policies, 
procedures, and solicitation and contract provisions and clauses must be 
forwarded to the Headquarters Office of Procurement (Code HK) for 
approval in accordance with 1801.271(b).
    (b)(i) 41 U.S.C. 418b requires publication of NFS changes for public 
comment where there will be a significant effect beyond the internal 
operating procedures of the agency or a significant cost or 
administrative impact on contractors or offerors. However, it does not 
define ``significant effect beyond the internal operating procedures'' 
or ``significant cost or administrative impact.'' Examples of policies 
or procedures that fall in either of these categories are:
    (A) A contract clause requiring contractors to take precautions to 
avoid injury to Florida manatees, which have been designated as an 
endangered species, has a significant cost impact for contractors who 
must obtain protective devices for boat propellers and take other safety 
actions.
    (B) A contract clause requiring contractors to follow the 
Government's holiday schedule, thereby disallowing premium pay for work 
on contractor-designated holidays, will have an effect outside the 
internal operating procedures of the agency.
    (C) A contract clause requiring contractors to segregate costs by 
appropriations will affect the contractor's internal accounting system 
and have a significant impact.
    (D) Requiring contractor compliance with NASA's Space Transportation 
System Personnel Reliability Program will have an effect outside the 
internal operating procedures of the agency.
    (ii) In contrast, the following would not have to be publicized for 
public comment:
    (A) Security procedures for identifying and badging contractor 
personnel to obtain access at a NASA installation.
    (B) A one-time requirement in a construction contract for the 
contractor to develop a placement plan and for inspection prior to any 
concrete being placed. (This is a part of the specification or statement 
of work.)
    (C) A policy that requires the NASA installation to maintain copies 
of unsuccessful offers.



1801.303  Publication and codification. (NASA supplements paragraph (a))

    (a) Part, subpart, and section numbers 70 through 89 are reserved 
for NFS supplementary material for which there is no FAR counterpart.



                 Subpart 1801.4--Deviations From the FAR



1801.400  Scope of subpart.

    This subpart prescribes the policies and procedures for authorizing 
deviations from the FAR and the NFS.



1801.471  Procedure for requesting deviations.

    (a) Requests for authority to deviate from the FAR or the NFS shall 
be submitted by the Procurement Officer to the Headquarters Office of 
Procurement (Code HS).
    (b) Each request for a deviation shall contain, as a minimum--
    (1) Identification of the FAR or the NFS requirement from which a 
deviation is sought;
    (2) A full description of the deviation, the circumstances in which 
it will be used, and the specific contract action(s) to which it 
applies;
    (3) A description of its intended effect;
    (4) A statement as to whether the deviation has been requested 
previously

[[Page 178]]

and, if so, the circumstances of the previous request;
    (5) Identification of the contractor(s) and the contract(s) 
affected, including dollar value(s);
    (6) Detailed reasons supporting the request, including any pertinent 
background information; and
    (7) A copy of counsel's concurrence or comments.
    (c) In addition to the information required by 1801.471(b), requests 
for individual deviations from FAR cost principles under FAR 31.101 
should include a copy of the contractor's request for cost allowance.



     Subpart 1801.6--Career Development, Contracting Authority, and 
                            Responsibilities



1801.601  General.

    The authority to contract for authorized supplies and services is 
delegated to the Assistant Administrator for Procurement and 
installation officials by NPD 5101.32.



1801.602-3  Ratification of unauthorized commitments. (NASA supplements paragraphs (b) and (c))

    (b) Policy. Individuals making unauthorized commitments may be 
subject to disciplinary action, and the issue may be referred to the 
Office of Inspector General.
    (c)(7) The authority in FAR 1.602-3 may be exercised only when--
    (A) The Government employee who made the unauthorized commitment, or 
his/her supervisor, if appropriate, initiates a procurement request in 
accordance with 1804.7301.
    (B) The procurement request and/or accompanying documentation 
identifies the individual who made the unauthorized commitment, and 
includes a statement signed by the individual that explains why normal 
acquisition procedures were not followed, explains why the firm was 
selected, lists other sources considered, describes the work, and 
estimates or states the agreed price. If the Government representative 
who made the unauthorized commitment is no longer available, appropriate 
program personnel shall provide the information described in this 
paragraph.
    (C) The procurement request is submitted through the director of the 
cognizant program office at the contracting activity, or comparable 
official. In the procurement request, the director shall describe 
measures taken to prevent the recurrence of the unauthorized commitment.



1801.603  Selection, appointment, and termination of appointment.



1801.603-2  Selection.

    Normally, only GS-1102 and -1105 personnel with the proper training 
and experience may be appointed contracting officers and only when a 
valid organizational need can be demonstrated.



1801.670  Delegations to contracting officer's technical representatives (COTRs).

    A COTR delegation may be made only by the contracting officer 
cognizant of that contract at the time the delegation is made. If the 
cognizant contracting officer is absent, the delegation letter may be 
signed by a warranted contracting officer at any level above the 
cognizant contracting officer. An individual COTR may have only the 
duties specifically identified in a written delegation to him or her by 
name (i.e., COTR duties may not be delegated to a position) and has no 
authority to exceed them. COTRs should be informed that they may be 
personally liable for unauthorized commitments. Contracting officer 
authority to sign or authorize contractual instruments shall not be 
delegated through a COTR designation or by any means other than a 
contracting officer warrant.



               Subpart 1801.7--Determinations and Findings



1801.707  Signatory authority.

    Signatory authority for determinations and findings (D&Fs) is 
specified in the FAR or the NFS text for the associated subject matter. 
The Administrator may make any of the D&Fs that may be made by the 
Assistant Administrator for Procurement or by a contracting officer.

[[Page 179]]



1801.770  Legal review.

    Each D&F, including class D&Fs, shall be reviewed by counsel for 
form and legality before signature by the approving authority.



PART 1802--DEFINITIONS OF WORDS AND TERMS--Table of Contents




Sec.
1802.000 Scope of part.

                       Subpart 1802.1--Definitions

1802.101 Definitions.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.



1802.000  Scope of part.

    Commonly used words and terms are defined in FAR subpart 2.1. This 
part 1802 gives NASA-specific meanings for some of these words and terms 
and defines other words and terms commonly used in the NASA acquisition 
process.



                       Subpart 1802.1--Definitions



1802.101  Definitions.

    Administrator means the Administrator or Deputy Administrator of 
NASA.
    Contracting activity in NASA includes the NASA Headquarters 
installation and the following field installations: Ames Research 
Center, Dryden Flight Research Center, Glenn Research Center at Lewis 
Field, Goddard Space Flight Center, Johnson Space Center, Kennedy Space 
Center, Langley Research Center, Marshall Space Flight Center and 
Stennis Space Center. A major program that may have contracts at 
multiple field centers may also be considered a contracting activity.
    Head of the agency or agency head means the Administrator or Deputy 
Administrator of NASA.
    Head of the contracting activity (HCA) means, for field 
installations, the Director or other head and, for NASA Headquarters, 
the Director for Headquarters Operations. For International Space 
Station (ISS) and Space Shuttle Program contracts, the HCA is the 
Headquarters Deputy Associate Administrator for ISS and Shuttle Programs 
in lieu of the field Center Director(s).
    NASA Acquisition Internet Service (NAIS) means the Internet service 
(URL: hhtp://procurement.nasa.gov) NASA uses to broadcast its business 
opportunities, procurement regulations, and associated information.
    Procurement officer means the chief of the contracting office, as 
defined in FAR 2.101.
    Senior Procurement Executive means the Associate Administrator or 
Deputy Assistant Administrator for Procurement, Office of Procurement, 
NASA Headquarters (Code H).

[61 FR 40537, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 64 
FR 19926, Apr. 23, 1999; 68 FR 23423, May 2, 2003]



PART 1803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents




                       Subpart 1803.1--Safeguards

Sec.
1803.101 Standards of conduct.
1803.101-1 General.
1803.101-2 Solicitation and acceptance of gratuities by Government 
          personnel.
1803.104 Procurement integrity.
1803.104-1 Definitions.
1803.104-4 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.
1803.104-7 Violations or possible violations. (NASA supplements 
          paragraphs (a), (b) and (f))

     Subpart 1803.2--Contract or Gratuities to Government Personnel

1803.203 Reporting suspected violations of the Gratuities clause.

        Subpart 1803.3--Reports of Suspected Antitrust Violations

1803.303 Reporting suspected antitrust violations.

            Subpart 1803.5--Other Improper Business Practices

1803.502 Subcontractor kickbacks.

  Subpart 1803.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them

1803.602 Exceptions.

[[Page 180]]

            Subpart 1803.7--Voiding and Rescinding Contracts

1803.704 Policy.
1803.705 Procedures.

Subpart 1803.8--Limitation on the Payment of Funds to Influence Federal 
                              Transactions

1803.804 Policy.
1803.806 Processing suspected violations.

                   Subpart 1803.70--IG Hotline Posters

1803.7000 Policy.
1803.7001 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.



                       Subpart 1803.1--Safeguards



1803.101  Standards of conduct.



1803.101-1  General.

    The statutory prohibitions and their application to NASA personnel 
are discussed in the Standards of Ethical Conduct for Employees of the 
Executive Branch, 5 CFR part 2635, and the Supplemental Standards of 
Ethical Conduct for Employees of the National Aeronautics and Space 
Administration, 5 CFR part 6901. All NASA personnel involved in 
acquisitions shall become familiar with these statutory prohibitions. 
Any questions concerning them shall be referred to legal counsel. In 
addition to criminal penalties, the statutes provide that transactions 
entered into in violation of these prohibitions are voidable (18 U.S.C. 
218).

[61 FR 40537, Aug. 5, 1996, as amended at 62 FR 14016, Mar. 25, 1997]



1803.101-2  Solicitation and acceptance of gratuities by Government personnel.

    Any suspected violations shall be reported promptly to the 
installation's Office of Inspector General.

[61 FR 40537, Aug. 5, 1996, as amended at 62 FR 14016, Mar. 25, 1997]



1803.104  Procurement integrity.

[62 FR 36704, July 9, 1997]



1803.104-1  Definitions.

    Agency ethics official means for Headquarters, the General Counsel 
and the Associate General Counsel for General Law, and for each center, 
the Chief Counsel.

[62 FR 36704, July 9, 1997. Redesignated at 67 FR 30603, May 7, 2002]



1803.104-4  Disclosure, protection, and marking of contractor bid or proposal information and source selection information.

    (a) Government employees serving in the following positions are 
authorized access to proprietary or source selection information, but 
only to the extent necessary to perform their official duties:
    (i) Personnel participating in source evaluation board (SEB) 
procedures (see 1815.370) or personnel evaluating an offeror's or 
bidder's technical or cost proposal under other competitive procedures 
and personnel evaluating protests.
    (ii) Personnel assigned to the contracting office.
    (iii) The initiator of the procurement request (to include the 
official having principal technical cognizance over the requirement).
    (iv) Small business specialists.
    (v) Personnel assigned to counsel's office.
    (vi) Personnel assigned to the Defense Contract Audit Agency and 
contract administration offices of the Department of Defense.
    (vii) Personnel responsible for the review and approval of documents 
in accordance with the Master Buy Plan Procedure in Subpart 1807.71.
    (viii) Other Government employees authorized by the contracting 
officer.
    (ix) Supervisors, at any level, of the personnel listed in 
paragraphs 1803.104-4(a) (i) through (viii).
    (x) Duly designated ombudsman.
    (c)(i) The originator of information that may be source selection 
information shall consult with the contracting officer or the 
procurement officer, who shall determine whether the information is 
source selection information. NASA personnel responsible for preparing 
source selection information as defined in FAR 2.101 shall assure that 
the material is marked with the legend

[[Page 181]]

in FAR 3.104-4(c) at the time the material is prepared.
    (ii) Unless marked with the legend ``SOURCE SELECTION INFORMATION--
SEE FAR 2.101 and 3.104,'' draft specifications, purchase descriptions, 
and statements of work are not considered source selection information 
and may be released during a market survey in order to determine the 
capabilities of potential competitive sources (see FAR Subpart 7.1). All 
documents, once released, must remain available to the public until the 
conclusion of the acquisition.

[62 FR 36704, July 9, 1997, as amended at 63 FR 9966, Feb. 27, 1998. 
Redesignated and amended at 67 FR 30603, May 7, 2002]



1803.104-7  Violations or possible violations. (NASA supplements paragraphs (a), (b) and (f))

    (a)(1) The Procurement Officer is the individual designated to 
receive the contracting officer's report of violations.
    (b) The head of the contracting activity (HCA) or designee shall 
refer all information describing an actual or possible violation to the 
installation's counsel and inspector general staff and to the Assistant 
Administrator for Procurement (Code HS).
    (f) When the HCA or designee determines that award is justified by 
urgent and compelling circumstances or is otherwise in the interest of 
the Government, then that official shall submit a copy of the 
determination to the Assistant Administrator for Procurement (Code HS) 
simultaneous with transmittal to the Administrator.

[62 FR 36704, July 9, 1997. Redesignated at 67 FR 30603, May 7, 2002]



     Subpart 1803.2--Contract or Gratuities to Government Personnel



1803.203  Reporting suspected violations of the Gratuities clause.

    Any suspected violations of the clause at FAR 52.203-3, Gratuities, 
shall be reported to the installation's Office of Inspector General.



        Subpart 1803.3--Reports of Suspected Antitrust Violations



1803.303  Reporting suspected antitrust violations. (NASA supplements paragraphs (b) and (d))

    (b)(i) When offers are received that, in the opinion of the 
contracting officer, indicate possible antitrust violations, the 
contracting officer shall report the circumstances to the General 
Counsel, NASA Headquarters, through the Office of Procurement (Code HS). 
Reports should not be submitted automatically but only when there is 
reason to believe the offers may not have been arrived at independently. 
These reports shall be submitted with conformed copies of bids or 
proposals, contract documents, and other supporting data, and shall set 
forth--
    (A) The noncompetitive pattern or situation under consideration;
    (B) Purchase experience in the same product or service for a 
reasonable period (one or more years) preceding receipt of the offers 
under consideration, including unit and total contract prices and 
abstracts of bids;
    (C) Community of financial interest among offerors, insofar as it is 
known;
    (D) The extent, if any, to which specification requirements or 
patents restrict competition;
    (E) Any information available about the pricing system employed in 
offers believed to reflect noncompetitive practices; and
    (F) Any other pertinent information.
    (ii) Evidence of practices that, in the opinion of the General 
Counsel, NASA Headquarters, may violate the antitrust laws shall be 
forwarded to the Attorney General of the United States (see FAR 3.303).
    (d) The contracting officer shall submit the identical bid report 
required by FAR 3.303(d) to NASA Headquarters, Office of Procurement 
(Code HS). The report shall include the reasons for suspecting 
collusion. Code HS shall forward a copy to the NASA Office of the 
Inspector General.

[[Page 182]]



            Subpart 1803.5--Other Improper Business Practices



1803.502  Subcontractor kickbacks.

    Contracting officers shall report suspected violations of the Anti-
Kickback Act in accordance with 1809.470.



  Subpart 1803.6--Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



1803.602  Exceptions.

    The Assistant Administrator for Procurement has been delegated the 
authority to authorize an exception to the policy in FAR 3.601. The 
Assistant Administrator for Procurement has redelegated this authority 
to the heads of contracting activities (HCAs) for individual actions in 
the aggregate of $100,000 and below, inclusive of follow-on 
acquisitions, with concurrence by the HCA's Office of Chief Counsel. All 
requests above the HCA's authority shall be forwarded to the Assistant 
Administrator for Procurement (Code HS) for approval.



            Subpart 1803.7--Voiding and Rescinding Contracts



1803.704  Policy. (NASA supplements paragraph (a))

    (a) The Assistant Administrator for Procurement has been delegated 
authority to void or rescind contracts when there is a final conviction 
for violation of 18 U.S.C. 201-224 (Bribery, Graft and Conflicts of 
Interest) relating to them.



1803.705  Procedures.

    Procurement officers shall make reports to the Assistant 
Administrator for Procurement (Code HS). The Assistant Administrator for 
Procurement is responsible for the actions, notices, and decisions 
required by FAR 3.705(c), (d), and (e).



Subpart 1803.8--Limitation on the Payment of Funds to Influence Federal 
                              Transactions



1803.804  Policy

    Procurement officers shall forward one copy of each Disclosure of 
Lobbying Activities (SF-LLL) furnished pursuant to FAR 3.803 to the 
Office of Procurement (Code HS). The original shall be retained in the 
contract file. Forms shall be submitted semi-annually by April 15th for 
the six-month period ending March 31st, and by October 15th for the 
period ending September 30th.



1803.806  Processing suspected violations.

    The Assistant Administrator for Procurement (Code HS) is the 
designated official to whom suspected violations of the Act shall be 
referred.



                   Subpart 1803.70--IG Hotline Posters



1803.7000  Policy.

    NASA requires contractors to display NASA hotline posters prepared 
by the NASA Office of Inspector General on those contracts specified in 
1803.7001, so that employees of the contractor having knowledge of 
waste, fraud, or abuse, can readily identify a means to contact NASA's 
IG.

[66 FR 29727, June 1, 2001]



1803.7001  Contract clause.

    Contracting officers must insert the clause at 1852.203-70, Display 
of Inspector General Hotline Posters, in solicitations and contracts 
expected to exceed $5,000,000 and performed at contractor facilities in 
the United States.

[66 FR 29727, June 1, 2001]



PART 1804--ADMINISTRATIVE MATTERS--Table of Contents




                   Subpart 1804.1--Contract Executive

Sec.
1804.103 Contract clause.
1804.170 Contract effective date.

[[Page 183]]

                  Subpart 1804.2--Contract Distribution

1804.202 Agency distribution requirements.
1804.203 Taxpayer identification information.

   Subpart 1804.4--Safeguarding Classified Information Within Industry

1804.402 General.
1804.404-70 Contract clause.
1804.470 Security requirements for unclassified information technology 
          resources.
1804.470-1 Scope.
1804.470-2 Policy.
1804.470-3 Security Plan for Unclassified Federal Information Technology 
          Systems.
1804.470-4 Contract clauses.

           Subpart 1804.5--Electronic Commerce in Contracting

1804.570 NASA Acquisition Internet Service (NAIS).
1804.570-1 General.
1804.570-2 Electronic posting system.

                   Subpart 1804.6--Contract Reporting

1804.601 Record requirements.
1804.602 Federal Procurement Data System.
1804.670 Individual Procurement Action Report (NASA Form 507 series).
1804.671 Committee on Academic Science and Engineering (C.A.S.E.) 
          Report.

                Subpart 1804.8--Government Contract Files

1804.802-70 Handling of classified material.
1804.803 Contents of contract files.
1804.803-70 Checklist.
1804.804 Closeout of contract files.
1804.804-2 Closeout of the contracting office files if another office 
          administers the contract.
1804.804-5 Procedures for closing out contract files.
1804.805 Storage, handling, and disposal of contract files.
1804.805-70 Review, separation, and retirement of contract files.

       Subpart 1804.9--Taxpayer Identification Number Information

1804.904 Reporting payment information to the IRS.

     Subpart 1804.70--Transfer of Contracting Office Responsibility

1804.7000 Scope of subpart.
1804.7001 Definition.
1804.7002 Approval of transfer requests.
1804.7003 Responsibilities of the contracting officer of the 
          transferring installation.
1804.7003-1 Coordinations.
1804.7003-2 File inventory.
1804.7003-3 Notifications.
1804.7003-4 Transfer.
1804.7003-5 Retention documentation.
1804.7004 Responsibilities of the contracting officer of the receiving 
          installation.
1804.7004-1 Pre-transfer file review.
1804.7004-2 Post-transfer actions.

     Subpart 1804.71--Uniform Acquisition Instrument Identification

1804.7100 Scope of subpart.
1804.7101 Policy.
1804.7102 Numbering scheme.
1804.7103 Modifications of contracts or agreements.

     Subpart 1804.72--Review and Approval of Contractual Instruments

1804.7200 Contract review by Headquarters.

                  Subpart 1804.73--Procurement Requests

1804.7301 General.

            Subpart 1804.74--Central Contractor Registration

1804.7400 Scope.
1804.7401 Definitions.
1804.7402 Policy.
1804.7403 Procedures.
1804.7404 Solicitation provisions and contract clauses.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40539, Aug. 5, 1996, unless otherwise noted.



                   Subpart 1804.1--Contract Execution



1804.103  Contract clause.

    The contracting officer shall include the clause at FAR 52.204-1, 
Approval of Contract, in solicitations, contracts, and supplemental 
agreements that require higher level approval. For actions requiring 
Headquarters approval, insert ``NASA Assistant Administrator for 
Procurement'' in the clause's blank space.



1804.170  Contract effective date.

    (a) Contract effective date means the date agreed upon by the 
parties for beginning the period of performance under the contract. In 
no case shall the effective date precede the date on

[[Page 184]]

which the contracting officer or designated higher approval authority 
signs the document.
    (b) Costs incurred before the contract effective date are 
unallowable unless they qualify as precontract costs (see FAR 31.205-32) 
and the clause prescribed at 1831.205-70 is used.



                  Subpart 1804.2--Contract Distribution



1804.202  Agency distribution requirements.

    In addition to the requirements in FAR 4.201, the contracting 
officer shall distribute one copy of each R&D contract, including the 
Statement of Work, to the NASA Center for AeroSpace Information (CASI), 
Attention: Acquisitions Collections Development Specialist, 7121 
Standard Drive, Hanover, MD 21076-1320.

[68 FR 5231, Feb. 3, 2002]



1804.203  Taxpayer identification information.

    Instead of using the last page of the contract to provide the 
information listed in FAR 4.203, NASA installations may allow 
contracting officers to use a different distribution method, such as 
annotating the cover page of the payment office copy of the contract.

[64 FR 1528, Jan. 11, 1999]



   Subpart 1804.4--Safeguarding Classified Information Within Industry



1804.402  General.

    (b) NASA security policies and procedures are prescribed in NPD 
1600.2A, NASA Security Policy; NPG 1600.6A, Communications Security 
Procedures and Guidelines; NPG 1620.1, Security Procedures and 
Guidelines; NPG 2810.1 and NPD 2810.1 Security of Information 
Technology.

[66 FR 53546, Oct. 23, 2001]



1804.404-70  Contract clause.

    The contracting officer shall insert the clause at 1852.204-75, 
Security Classification Requirements, in solicitations and contracts if 
work is to be performed will require security clearances. This clause 
may be modified to add instructions for obtaining security clearances 
and access to security areas that are applicable to the particular 
acquisition and installation.



1804.470  Security requirements for unclassified information technology resources.



1804.470-1  Scope.

    This section implements NASA's acquisition-related aspects of 
Federal policies for assuring the security of unclassified automated 
information resources. Federal policies include, but are not limited to, 
the Computer Security Act of 1987 (40 U.S.C. 1441 et seq.), the Clinger-
Cohen Act of 1996 (40 U.S.C. 1401 et seq.), Public Law 106-398, section 
1061, Government Information Security Reform, OMB Circular A-130, 
Management of Federal Information Resources, and the National Institute 
of Standards and Technology security guidance and standards.

[67 FR 48815, July 26, 2002]



1804.470-2  Policy.

    (a) NASA policies and procedures on security for automated 
information technology are prescribed in NPD 2810.1, Security of 
Information Technology, and in NPG 2810.1, Security of Information 
Technology. The provision of information technology (IT) security in 
accordance with these policies and procedures, is required in all 
contracts that include IT resources or services in which a contractor 
must have physical or electronic access to NASA's sensitive information 
contained in unclassified systems that directly support the mission of 
the Agency. This includes information technology, hardware, software, 
and the management, operation, maintenance, programming, and system 
administration of computer systems, networks, and telecommunications 
systems. Examples of tasks that require security provisions include:
    (1) Computer control of spacecraft, satellites, or aircraft or their 
payloads;
    (2) Acquisition, transmission or analysis of data owned by NASA with 
significant replacement costs should the contractor's copy be corrupted; 
and

[[Page 185]]

    (3) Access to NASA networks or computers at a level beyond that 
granted the general public, e.g. bypassing a firewall.
    (b) The contractor must not use or redistribute any NASA information 
processed, stored, or transmitted by the contractor except as specified 
in the contract.

[66 FR 36491, July 12, 2001]



1804.470-3  Security plan for unclassified Federal Information Technology systems.

    (a) The requiring activity with the concurrence of the Center Chief 
Information Officer (CIO), and the Center Information Technology (IT) 
Security Manager, must determine whether an IT Security Plan for 
unclassified information is required.
    (b) IT security plans must demonstrate a thorough understanding of 
NPG 2810.1 and NPD 2810.1 and must include, as a minimum, the security 
measures and program safeguards planned to ensure that the information 
technology resources acquired and used by contractor and subcontractor 
personnel--
    (1) Are protected from unauthorized access, alteration, disclosure, 
or misuse of information processed, stored, or transmitted;
    (2) Can maintain the continuity of automated information support for 
NASA missions, programs, and functions;
    (3) Incorporate management, general, and application controls 
sufficient to provide cost-effective assurance of the systems' integrity 
and accuracy;
    (4) Have appropriate technical, personnel, administrative, 
environmental, and access safeguards;
    (5) Document and follow a virus protection program for all IT 
resources under its control; and
    (6) Document and follow a network intrusion detection and prevention 
program for all IT resources under its control.
    (c) The contractor must be required to develop and maintain an IT 
System Security Plan, in accordance with NPG 2810.1, for systems for 
which the contractor has primary operational responsibility on behalf of 
NASA.
    (d) The contracting officer must obtain the concurrence of the 
Center Chief of Security before granting any contractor requests for 
waiver of the screening requirement contained in the clause at 1852.204-
76.

[66 FR 36491, July 12, 2001]



1804.470-4  Contract clauses.

    The contracting officer must insert a clause substantially the same 
as the clause at 1852.204-76, Security Requirements for Unclassified 
Information Technology Resources, in solicitations and contracts which 
require submission of an IT Security Plan.

[66 FR 36491, July 12, 2001]



           Subpart 1804.5--Electronic Commerce in Contracting

    Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.



1804.570  NASA Acquisition Internet Service (NAIS).



1804.570-1  General.

    The NASA Acquisition Internet Service (NAIS) provides an electronic 
means for posting procurement synopses, solicitations, and associated 
information on the NAIS Internet site which in turn, automatically posts 
relevant information onto the Governmentwide point of entry (GPE).

[66 FR 53546, Oct. 23, 2001]



1804.570-2  Electronic Posting System.

    (a) The NAIS Electronic Posting System (EPS) enables the NASA 
procurement staff to--
    (1) Electronically create and post synopses on the NAIS Internet 
site and the GPE; and
    (2) Post solicitation documents, including solicitation amendments 
or cancellations, and other procurement information on the NAIS Internet 
site with linked references on the GPE.
    (b) The EPS maintains an on-line index linking the posted synopses 
and solicitations for viewing and downloading.
    (c) The EPS shall be used to--

[[Page 186]]

    (1) Create and post all synopses in accordance with FAR part 5 and 
NFS 1805; and
    (2) Post all competitive solicitation files, excluding large 
construction and other drawings, for acquisitions exceeding $25,000.
    (d) The NAIS is the official site for solicitation postings which in 
turn, automatically posts relevant information onto the Government-wide 
point of entry (GPE). In the event supporting materials, such as program 
libraries, cannot be reasonably accommodated by the NAIS, Internet sites 
external to NAIS may be established after coordination with the 
contracting officer. Such sites must be linked from the NAIS business 
opportunities index where the solicitation resides. External sites 
should not duplicate any of the files residing on the NAIS.

[66 FR 53546, Oct. 23, 2001]



                   Subpart 1804.6--Contract Reporting



1804.601  Record requirements.

    The Headquarters Office of Procurement (Code HC) is responsible for 
meeting the requirements of FAR 4.601, based on installation submission 
of Individual Procurement Action Reports (NASA Form 507 series) data.

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998; 67 
FR 50823, Aug. 6, 2002]



1804.602  Federal Procurement Data System. (NASA supplements paragraph (d))

    (d) Code HC is responsible for requesting, obtaining, and reporting 
Contractor Establishment Codes to the FPDS.

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998; 67 
FR 50823, Aug. 6, 2002]



1804.670  Individual Procurement Action Report (NASA Form 507 series).

    The Individual Procurement Action Report and Supplements (NASA Form 
507 series) provide essential procurement records and statistics through 
a single uniform reporting program as a basis for required recurring and 
special reports to Congress, Federal Procurement Data Center, and other 
Federal agencies. The preparation and utilization of the NASA Form 507 
series are integral parts of the agencywide Financial and Contractual 
Status (FACS) system. The Headquarters Office of Procurement issues 
Procurement Information Circulars (PICs) to--
    (a) Identify the procurement actions subject to reporting; and
    (b) Provide instructions on preparation of the NASA Forms 507.

[67 FR 50823, Aug. 6, 2002]



1804.671  Committee on Academic Science and Engineering (C.A.S.E.) Report.

    NASA Form 1356, C.A.S.E. Report on College and University Projects, 
shall be prepared for awards to nonprofit institutions of higher 
education or to nonprofit institutions that are operationally affiliated 
or integrated with an educational institution. Information on this form 
is used to produce reports required by the National Science Foundation 
and to respond to inquiries. Submission is required regardless of 
instrument type (contract, grant, cooperative agreement, or funded Space 
Act agreement) and type of proposal (solicited or unsolicited). 
Instructions appear on the form itself and constitute the detailed 
guidance for preparation and submission. The form, which is either 
included with the acquisition package or initiated by the contracting 
office, shall be completed, reviewed, and promptly forwarded upon award 
to the Headquarters Office of Human Resources and Education (Code FE).

[61 FR 40539, Aug. 5, 1996, as amended at 63 FR 32763, June 16, 1998]



                Subpart 1804.8--Government Contract Files



1804.802-70  Handling of classified material.

    When a contract is unclassified, classified material relating to 
that contract shall be maintained in a separate file folder and 
container, and the unclassified folder shall be marked to indicate the 
location of the classified material. The front and back of each folder 
containing classified material

[[Page 187]]

shall be marked with the highest classification assigned to any document 
in the folder.



1804.803  Contents of contract files.



1804.803-70  Checklist.

    NASA Form 1098, Checklist for Contract Award File Content, shall be 
used as the ``top page'' in contract files.



1804.804  Closeout of contract files.



1804.804-2  Closeout of the contracting office files if another office administers the contract. (NASA supplements paragraph (b))

    (b) Upon receiving the NASA Form 1611 or DD Form 1594, Contract 
Completion Statement, from the contract administration office and 
complying with FAR 4.804-2(b), the contracting officer shall complete 
the form.



1804.804-5  Procedures for closing out contract files.

    (a) When the contracting office retains contract administration 
(excluding acquisitions under the simplified acquisition threshold), the 
contracting officer must comply with FAR 4.804-5(a) by completing NASA 
Form 1612, Contract Closeout Checklist, and DD Form 1593, Contract 
Administration Completion Record.
    (b) To comply with FAR 4.804-5(b), the contracting officer must 
complete NASA Form 1611 or DD Form 1594, Contract Completion Statement, 
except for acquisitions under the simplified acquisition threshold.

[61 FR 40539, Aug. 5, 1996, as amended at 65 FR 31102, May 16, 2000]



1804.805  Storage, handling, and disposal of contract files. (NASA supplements paragraph (a))

    (a) See NPG 1441.1C, Records Retention Schedules.

[61 FR 40539, Aug. 5, 1996, as amended at 64 FR 5620, Feb. 4, 1999]



1804.805-70  Review, separation, and retirement of contract files.

    (a) Upon determination of contract completion under the procedures 
outlined in 1804.804, each office shall remove the official contract 
files from the active file series, mark each file folder with 
``Completed (Date)'', and place the folder in a completed (inactive) 
contract file series. Separate series should be established for 
contracts of $25,000 or less and for contracts of more than $25,000, to 
facilitate later disposal. Any original or official file copies of 
documents contained in duplicate or ``working'' contract files shall be 
removed and placed in the appropriate official file; any remaining 
material in the duplicate or ``working'' file shall be destroyed 
immediately or segregated and marked for early disposal.
    (b) Each office shall review contractor ``general'' files (i.e., a 
file containing documents relating generally to a contractor rather than 
a specific contract) at least once annually and remove documents that--
    (1) Are obsolete or superseded documents relating generally to the 
contractor (e.g., documents no longer pertinent to any aspect of a 
contractor's current or future capability, performance, or programs, and 
documents relating to a contractor that is no longer a possible source 
of supplies, services, or technical assistance) and dispose of the 
documents as authorized in 1804.805; or
    (2) Pertain only to completed contracts. Place those files that are 
not routine in nature in inactive files for later disposal, and 
immediately dispose of routine documents as authorized in NPG 1441.1C, 
Records Retention Schedules.

[61 FR 40539, Aug. 5, 1996, as amended at 64 FR 5620, Feb. 4, 1999]



       Subpart 1804.9--Taxpayer Identification Number Information



1804.904  Reporting payment information to the IRS.

    Each NASA installation, that has its own employer identification 
number, may elect to report to the IRS payments under purchase orders 
and contracts for merchandise and other exempt bills.

[64 FR 1528, Jan. 11, 1999]

[[Page 188]]



     Subpart 1804.70--Transfer of Contracting Office Responsibility



1804.7000  Scope of subpart.

    This subpart contains policies and procedures applicable to the 
transfer of contracts between NASA installations.



1804.7001  Definition.

    Transfer of a contract, as used in this subpart, means that process 
whereby a contract and all future responsibility for a contract held by 
one installation are transferred or reassigned in writing to another 
installation.



1804.7002  Approval of transfer requests.

    (a) The approval authority for requests to transfer a contract is 
the official in charge of the cognizant Headquarters program office or 
designee. Requests for approval shall be submitted by the director of 
the transferring installation after receiving the concurrence of the 
director of the receiving installation. Concurrence of the Associate 
Deputy Administrator (Code AI) is also required for a transfer where an 
installation's roles and missions may be affected.
    (b) Approval of a program transfer by the cognizant Headquarters 
official constitutes approval to transfer program-related contracts.



1804.7003  Responsibilities of the contracting officer of the transferring installation.



1804.7003-1  Coordinations.

    The contracting officer of the transferring installation shall take 
the following steps before transferring the contract:
    (a) Agree on a plan and schedule with the contracting officer of the 
receiving installation for transferring contract responsibility and 
contract files.
    (b) Coordinate with the following offices:
    (1) Financial Management Office, to determine the contract financial 
records to be transferred and the method, timing, and dollar amount of 
such transfers.
    (2) Technical (Engineering and Project) Office, to determine the 
status of any outstanding engineering changes.
    (3) Reliability and Quality Assurance Office, to determine status 
and method of transferring the reliability and quality assurance 
functions.
    (4) Industrial Property and Facilities Office, to determine the 
method of transferring the Government property records.
    (5) Transportation Office, to determine the status of bills of 
lading furnished the contractor.
    (6) Security Office, to determine whether any classified material is 
outstanding and whether special precautions are necessary during the 
transfer process.
    (7) Other organizational elements, to determine the status of any 
other actions such as new technology, materials reports, PERT, and 
safety.



1804.7003-2  File inventory.

    The contracting officer of the transferring installation shall 
prepare an inventory of the contract file. This inventory shall also 
include a separate listing of all outstanding requests for contract 
administration assistance issued to other Government agencies, 
indicating the name and address of the agency office, functions 
requested to be performed, estimated cost of the services, and estimated 
reimbursement due the administration agency for the services yet to be 
performed for each requested function. Copies of this inventory shall be 
provided to the contracting officer of the receiving installation.



1804.7003-3  Notifications.

    The contracting officer of the transferring installation shall 
provide written notification of the planned transfer to the contractor 
and all agencies performing or requested to perform administration 
services.



1804.7003-4  Transfer.

    (a) Upon completion of the actions described in 1804.7003-1 through 
1804.7003-3, the contracting officer of the transferring installation 
shall issue a letter to the contractor, agencies performing contract 
administration functions, contracting officer representatives, and the 
contracting officer of the

[[Page 189]]

receiving installation. This letter shall provide notification of the 
transfer date, termination of appointment of the contracting officer's 
representatives, and the name, mailing address, and telephone number of 
the contracting officer of the receiving installation.
    (b) After issuing the letters described in 1804.7003-4(a), the 
contracting officer of the transferring installation shall send the 
contract file to the contracting officer of the receiving installation 
with a letter transferring contract responsibility. This letter shall 
contain a provision for acceptance of the responsibility for the 
contract and its related files by the contracting officer of the 
receiving installation.



1804.7003-5  Retention documentation.

    The contracting officer of the transferring installation shall 
retain for permanent file a copy of the approvals and concurrences 
required by 1804.7002, the transfer acceptance letter of the contracting 
officer of the receiving installation, and any additional documents 
necessary for a complete summary of the transfer action.



1804.7004  Responsibilities of the contracting officer of the receiving installation.



1804.7004-1  Pre-transfer file review.

    The contracting officer of the receiving installation shall review 
the contract, letters of request, actions in process, and other related 
files and to request corrective action, if necessary, before the 
official transfer of the contract. This review may be waived by written 
notification to the contracting officer of the transferring 
installation.



1804.7004-2  Post-transfer actions.

    The contracting officer of the receiving installation shall--
    (a) Provide the contracting officer of the transferring installation 
written acceptance of contract responsibility and receipt of the 
contract files;
    (b) Inform all offices affected within the installation of the 
receipt of the contract;
    (c) Appoint new contracting officer's technical representatives, as 
necessary;
    (d) Issue a contract modification to provide for the administrative 
changes resulting from the transfer action (e.g., identifying offices 
responsible for performing contract administration and making payment 
and the office to which vouchers, reports, and data are to be 
submitted);
    (e) Provide copies of the contract documents to affected 
installation offices; and
    (f) If appropriate, supplement the letter of request to the 
Government agency providing contract administration services to reflect 
the changes resulting from the transfer action. The supplement may 
terminate or amend an existing contract administration support 
arrangement or may request support in additional areas.



     Subpart 1804.71--Uniform Acquisition Instrument Identification



1804.7100  Scope of subpart.

    This subpart contains the procedures for uniform numbering of NASA 
solicitations, contracts (including letter contracts), purchase orders 
(including requests to other Government agencies), basic ordering 
agreements, other agreements between the parties involving the payment 
of appropriated funds or collection of funds for credit to the Treasury 
of the United States, and modifications or supplements to these 
instruments.



1804.7101  Policy.

    (a) Contractual documents shall be numbered with approved prefixes, 
suffixes, and serial numbers as prescribed in this subpart. If other 
identification is required for center purposes, it shall be placed on 
the document in such a location as to clearly separate it from the 
identification number.
    (b) The identification number shall consist of exactly 10 alpha-
numeric characters positioned as prescribed in this subpart and shall be 
retained unchanged for the life of the particular instrument.
    (c) Identification numbers shall be serially assigned to the extent 
feasible. Installations may designate blocks of numbers to offices for 
future use.

[[Page 190]]

    (d) Solicitations shall be numbered in accordance with installation 
procedures, except that in all cases the identifying number shall begin 
with the three characters specified in 1804.7102(a)(1) and (2).

[68 FR 53525, Sept. 11, 2003]



1804.7102  Numbering scheme.

    (a) General.
    (1) The first two characters shall be NN.
    (2) The third character shall be the same letter as used in the 
Integrated Financial Management Program (IFMP), i.e., the first letter 
of Center name, except for GRC which uses ``C''.
    (3) The fourth and fifth characters shall be 2 numeric characters 
for the FY in which the award is expected to be signed by the 
Government.
    (4) The sixth through ninth characters shall be 4 digits for action 
number; 2 alphas, 2 numbers (AA01, AA02 . . . AA99, AB01, AB02, . . . 
AZ99, BA01, BA02, etc. through ZZ99)
    (5) The tenth character shall be 1 alpha character for type of 
action.
    (b) Codes for Type of Action:

A--Cooperative agreement.
B--BOA, GWAC, or other indefinite delivery type contract.
C--Contract (except Facilities or indefinite delivery type).
D--Delivery order or call against a supply contract (BOA, FSS, or other 
          indefinite delivery contract or BPA).
F--Facilities contract.
G--Grant (other than training).
H--Training grant.
I--Intragovernmental transaction, i.e., request to another Government 
          agency to furnish supplies or services. It does not include an 
          award by NASA to fulfill a request from another agency.
P--Purchase order. (This does not include a call or task or delivery 
          order, regardless of whether it is issued on a purchase order 
          form. It also does not include other types of actions listed 
          in this paragraph, notwithstanding that they are referred to 
          as purchase orders in IFMP.)
S--Space Act agreement.
T--Task order against a service (including R&D) contract (BOA, FSS, or 
          other indefinite delivery contract or BPA).
Z--BPA.

    (c) Sample.

    NNG04AA01C would be a GSFC action issued in FY04. It would be the 
first one issued at the Center (or the first of its type), and the 
action type would be a contract:

 
     NN            G            04            AA01              C
 
NASA          GSFC         FY04         Serial No. 1     Contract
 


[68 FR 53525, Sept. 11, 2003]



1804.7103  Modifications of contracts or agreements.

    (a) Modifications of definitive or letter contracts or agreements 
shall (1) bear the same identification as the contract or agreement 
being modified and (2) be numbered consecutively for each contract or 
agreement, beginning with Modification Number 1, regardless of whether 
the modification is accomplished by unilateral or bilateral action. 
Except for termination notices, modifications shall be effected by the 
use of Standard Form 30, Amendment of Solicitation/Modification of 
Contract.
    (b) Definitive contracts superseding letter contracts shall retain 
the same contract number as that originally assigned to the letter 
contract. Actions definitizing letter contracts are considered 
modifications and shall be assigned modification numbers in accordance 
with paragraph (a) of this section.

[61 FR 40539, Aug. 5, 1996. Redesignated as 68 FR 53526, Sept. 11, 2003]



     Subpart 1804.72--Review and Approval of Contractual Instruments



1804.7200  Contact review by Headquarters.

    (a) Requests for approval of contracts and supplemental agreements 
by the Assistant Administrator for Procurement shall be submitted to the 
Headquarters Office of Procurement (Code HS) in sufficient time to allow 
a minimum of 15 days for review.
    (b) Each request for approval shall be accompanied by (1) five 
copies of the contractual document, one of which has been executed by 
the contractor and contracting officer, and (2) the official contract 
file containing the appropriate documentation as set forth in FAR 
4.803(a). However, for the items specified in FAR 4.803(a) (10), (11), 
and

[[Page 191]]

(12), the contracting officer shall provide documentation pertaining 
only to the successful offeror; and, in lieu of the items specified in 
FAR 4.803(a)(26) (ii) and (iii), the contracting officer shall provide 
an index briefly describing the content of all previous modifications.
    (c) The approval required under this section shall be made by 
signature of the Assistant Administrator for Procurement on the 
contract/supplemental agreement.



                  Subpart 1804.73--Procurement Requests



1804.7301  General.

    (a) Except in unusual circumstances, the contracting office shall 
not issue solicitations until an approved procurement request (PR), 
containing a certification that funds are available, has been received. 
However, the contracting office may take all necessary actions up to the 
point of contract obligation before receipt of the PR certifying that 
funds are available when--
    (1) Such action is necessary to meet critical program schedules;
    (2) Program authority has been issued and funds to cover the 
acquisition will be available prior to the date set for contract award 
or contract modification;
    (3) The procurement officer authorizes such action in writing before 
solicitation issuance; and
    (4) The solicitation includes the clause at FAR 52.232-18, 
Availability of Funds. The clause shall be deleted from the resultant 
contract.
    (b) The contracting office shall not issue either a draft or final 
solicitation until a PR, either planning or final, has been received 
that contains an NPG 7120.5 certification. That certification must be 
made by the project or program office that initiated the PR, or the PR 
approval authority when there is no project or program office. The 
certification must state that either--
    (1) The requested action is not in support of programs and projects 
subject to the requirements of NPG 7120.5, or
    (2) The requested action is in support of programs and projects 
subject to the requirements of NPG 7120.5, and
    (i) All NPG 7120.5 required documentation is current and has been 
approved; or
    (ii) Authority to proceed without the required documentation has 
been granted by the Chair of the Governing Program Management Council or 
designee.

[64 FR 14640, Mar. 26, 1999]



            Subpart 1804.74--Central Contractor Registration

    Source: 65 FR 50153, Aug. 17, 2000, unless otherwise noted.



1804.7400  Scope.

    This subpart prescribes policies and procedures for requiring 
contractor registration in the DoD Central Contractor Registration (CCR) 
database.



1804.7401  Definitions.

    ``Central Contractor Registration (CCR) database,'' ``Data Universal 
Numbering System (DUNS) number,'' ``Data Universal Numbering System+4 
(DUNS+4) number,'' ``Commercial and Government Entity (CAGE) Code,'' and 
``Registered in the CCR database'' are defined in the clause at 
1852.204-74, Central Contractor Registration.



1804.7402  Policy.

    Prospective contractors must be registered in the CCR database, 
prior to any award of a contract, purchase order, basic agreement, basic 
ordering agreement, or blanket purchase agreement. This policy applies 
to all types of awards except the following:
    (a) Purchases made with a Government-wide commercial purchase card.
    (b) Awards made to foreign vendors for work performed outside of the 
United States.
    (c) Purchases under FAR 6.302-2, Unusual and Compelling Urgency.

[65 FR 50153, Aug. 17, 2000, as amended



1804.7403  Procedures.

    (a)(1) The contracting officer shall verify that the prospective 
awardee is registered in the CCR database using either the Cage Code, 
DUNS number or, if applicable, the DUNS+4 number, via the Internet at 
http://www.ccr.gov or

[[Page 192]]

by calling toll free: 888-CCR-2423 (888-227-2423), commercial: 616-961-
5757.
    (2) Verification of registration is not required for orders or calls 
placed under contracts, basic agreements, basic ordering agreements, or 
blanket purchase agreements in which vendor registration was verified at 
the time of award of the contract or agreement.
    (b) If the contracting officer determines that a prospective awardee 
is not registered in the CCR database, the contracting officer shall --
    (1) If delaying the acquisition would not be to the detriment of the 
Government, proceed to award after the contractor is registered; or
    (2) If delaying the acquisition would be to the detriment of the 
Government, proceed to award to the next otherwise successful registered 
offeror, with the written approval of the Procurement Officer.
    (c) The contracting officer shall protect against improper 
disclosure of contractor CCR information.

[65 FR 50153, Aug. 17, 2000, as amended at 67 FR 30603, May 7, 2002; 67 
FR 50823, Aug. 6, 2002]



1804.7404  Solicitation provisions and contract clauses.

    Except as provided in 1804.7402, the contracting officer must use 
the clause at 1852.204-74, Central Contractor Registration, in all 
solicitations and contracts, including those for commercial items.

[[Page 193]]



           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING



PART 1805--PUBLICIZING CONTRACT ACTIONS--Table of Contents




              Subpart 1805.1--Dissemination of Information

Sec.
1805.101 Methods of disseminating information.

             Subpart 1805.2--Synopses of Proposed Contracts

1805.205 Special situations.
1805.207 Preparation and transmittal of synopses.
1805.207-70 Synopses of Architect-Engineer Services and Federal 
          Information Processing Resources.

               Subpart 1805.3--Synopses of Contract Awards

1805.303 Announcement of contract awards.
1805.303-70 NASA Headquarters public announcement.
1805.303-71 Administrator's notice of significant contract actions 
          (ANOSCAs).

                 Subpart 1805.4--Release of Information

1805.402 General public.
1805.403 Requests from Members of Congress.

                   Subpart 1805.5--Paid Advertisements

1805.502 Authority.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40543, Aug. 5, 1996, unless otherwise noted.



              Subpart 1805.1--Dissemination of Information



1805.101  Methods of disseminating information. (NASA supplements paragraph (b))

    (b)(4) For NASA policy regarding paid advertisements, see 1805.502.



             Subpart 1805.2--Synopses of Proposed Contracts



1805.205  Special situations. (NASA supplements paragraph (a))

    (a) Potential sources responding to R&D advance notices shall be 
added to the appropriate solicitation mailing list for the subsequent 
solicitation and, if they do not appear on the solicitation mailing 
lists established in accordance with FAR 14.205-1, shall be requested to 
submit Standard Form 129, Solicitation Mailing List Application. 
Responding sources on established lists may be requested to submit 
amended applications in order to reflect their current capabilities.



1805.207  Preparation and transmittal of synopses.

    (a) Synopses shall be transmitted in accordance with 1804.570.

[61 FR 40543, Aug. 5, 1996, as amended at 63 FR 9954, Feb. 27, 1998]



1805.207-70  Synopses of Architect-Engineer Services and Federal Information Processing Resources.

    (a) Architect-engineering services. (1) Each notice publicizing the 
acquisition of architect-engineer services shall be headed ``C. 
Architect-Engineer Services.''
    (2) In addition to meeting the requirements of FAR 5.207(c), the 
project description shall--
    (i) State the relative importance the Government attaches to the 
significant evaluation criteria and the date by which responses to the 
notice must be received, including submission of Standard Form 255, 
Architect-Engineer and Related Services Questionnaire for Specific 
Project, if required;
    (ii) Describe any specialized qualifications, security 
classifications, and limitations on eligibility for consideration;
    (iii) Describe qualifications or performance data required from 
architect-engineer firms; and
    (iv) If the acquisition is to be set aside for small business, state 
this fact, indicating the specific size standard to be used and 
requiring that eligible responding firms submit a small business 
representation.
    (3) Contracting officers shall add at the end of the synopsis:


[[Page 194]]


    See Note 24. Provisions of Note 24 apply to this notice except that 
(a) in the sentence beginning ``Selection of firms for negotiations,'' 
the fourth additional consideration listed is changed to read: ``(4) 
past experience, if any, of the firm with respect to performance on 
contracts with NASA, other Government agencies, and private industry;'' 
and (b) in the last sentence, ``National Aeronautics and Space 
Administration'' is substituted for ``Department of Defense.''

    (b) Federal Information Processing (FIP) Resources. (1) When total 
requirement quantities are expected to satisfy the needs of only a 
single field installation, each notice publicizing the acquisition of 
FIP resources under an indefinite delivery/idenfinite quantity contract 
or under a contract that includes options for additional quantities of 
such resources shall include the following:

    The ---- (identify contracting activity) is the primary delivery 
point for the items described in this synopsis. However, NASA may order 
delivery to the following alternate locations: ---- (List other NASA 
installations and their locations).

    (2) When the contemplated contract will authorize orders from 
locations other than the awarding installation, the notice shall fully 
describe the ordering scope.



               Subpart 1805.3--Synopses of Contract Awards



1805.303  Announcement of contract awards. (NASA supplements paragraph (a))

    (a)(i) In lieu of the $3 million threshold cited in FAR 5.303(a), 
NASA Headquarters public announcement is required for award of contract 
actions that have a total anticipated value, excluding unexercised 
options, of $25 million or greater. This threshold applies to new 
awards, contract modifications, and option exercises, but not to 
incremental funding or cost overrun modifications.
    (A) For undefinitized contract actions, the not-to-exceed (NTE) or 
ceiling price value is the face value.
    (B) For indefinite delivery, time and material, labor hour, and 
similar contracts, the estimated amount of the basic contract is the 
face value. Individual orders up to the face value shall not be 
announced regardless of value. However, after the face value is reached, 
any subsequent modifications or orders of $25 million or greater must be 
announced.
    (ii) NASA Headquarters public announcement is also required for 
award of a contract action with a value of less than $25 million if the 
contracting officer believes it to have Agency public information 
implications.
    (iii) Contractual instruments requiring Headquarters public 
announcement shall not be distributed nor shall any source outside NASA 
be notified of their status until the public announcement procedures in 
1805.303-70 have been completed.



1805.303-70  NASA Headquarters public announcement.

    (a) For those contract actions requiring Headquarters public 
announcement in accordance with 1805.303, the contracting officer shall 
furnish a draft news release including the following information, 
through the installation Public Affairs Office, via facsimile 
transmission to the Headquarters Office of Public Affairs, News and 
Imaging Branch (Code PM):
    (1) A brief description of the work, including identification of the 
program and project;
    (2) Identification of the contract action as either a new contract 
or additional work of services under an existing contract;
    (3) Contract type. For undefinitized contract actions, identify the 
planned contract type of the definitized instrument;
    (4) The dollar amount authorized for the instant action and the 
estimated total cost of the contract if this is different. For 
undefinitized contract actions, indicate the NTE or ceiling price 
amount;
    (5) Name and address (including zip code) of the contractor;
    (6) Principal work performance locations;
    (7) Names and addresses of any unsuccessful offerors.
    (b) The information in paragraph (a) of this section shall be 
provided to Code PM before transmitting a letter contract to a 
contractor for signature.

[[Page 195]]

For actions other than letter contracts, the information should be 
transmitted to Code PM after contractor signature, if applicable, no 
later than 48 hours before the planned award.
    (c) For contract actions requiring Headquarters approval in 
accordance with 1804.72, the draft news release required by paragraph 
(a) of this section shall be provided to the Headquarters Office of 
Procurement (Code HS) with the request for approval. Code HS will 
forward the information to Code PM after approval.
    (d) Code PM will advise the installation Public Affairs Office of 
the date public announcement of the contract action will be made. 
Installations may proceed with award and local release of the 
information no earlier than 4:00 p.m. ET of the date Code PM makes 
public announcement. If earlier award is considered appropriate, 
installations must request authorization from the Assistant 
Administrator for Procurement (Code HS).



1805.303-71  Administrator's notice of significant contract actions (ANOSCAs).

    (a) In addition to the public announcement requirements described in 
1805.303-70, contracting officers shall notify the Administrator of the 
following significant actions at least five (5) workdays prior to 
planned public announcement of the actions:
    (1) Planned contract award for competitive acquisitions of $25 
million or more, including all priced options.
    (2) Planned contract award of non-competitive awards and new work 
modifications of $100 million or more, including all priced options.
    (3) Planned award of other actions, to include cooperative 
agreements resulting from a Cooperative Agreement Notice (CAN), at any 
dollar value thought to be of significant interest to Headquarters.
    (b) To provide notification to the Administrator, the contracting 
officer shall send the information listed in paragraphs (b) (1) through 
(10) of this subsection to the Headquarters Office of Procurement (Code 
HS) via facsimile transmission (202-358-4065). Immediately prior to 
transmission, the contracting officer shall notify Code HS by telephone 
of the impending transmission. In accordance with FAR 3.104-5(c), the 
contracting officer shall mark all pages that include source selection 
information with the legend ``SOURCE SELECTION INFORMATION--SEE FAR 
3.104.'' The following information shall be sent:
    (1) Title and a brief nontechnical description of the work, 
including identification of the program or project;
    (2) Identification of the contract action as either a new contract 
or additional supplies or services under an existing contract;
    (3) Contract type (including whether a cost contract is completion 
or level-of-effort). For undefinitized contract actions, identify the 
planned contract type of the definitized instrument;
    (4) The total contract value for the instant action including all 
priced options. Also include the Government's most probable cost. For 
undefinitized contract actions, indicate the NTE or ceiling price 
amount;
    (5) The name, address, and business size status of the prime 
contractor and each major (over $1M) subcontractor;
    (6) Small business and small disadvantaged business subcontracting 
goals both in dollars and percentage of the value of the action 
including all options;
    (7) Principal work performance locations;
    (8) Brief description of any unusual circumstances;
    (9) The names and telephone numbers of the contracting officer and 
project manager; and
    (10) For competitive selections only, provide on a separate 
attachment the names and addresses of all unsuccessful offerors and a 
brief explanation of the general basis for the selection.
    (c) The field installation shall not proceed with any awards or 
announcements until Code HS has advised that the Administrator has been 
notified of the proposed action and the supporting

[[Page 196]]

information. Once this advice is received from Code HS, the field 
installation shall proceed with the public announcement procedures 
described in 1805.303-70.

[61 FR 40543, Aug. 5, 1996, as amended at 62 FR 4466, Jan. 30, 1997; 63 
FR 43099, Aug. 12, 1998]



                 Subpart 1805.4--Release of Information



1805.402  General public. (NASA paragraphs (1) and (2)

    (1) Unless the head of the contracting activity determines that 
disclosure would be prejudicial to the interests of NASA, the following 
information on NASA acquisitions may be released:
    (i) The names of firms invited to submit offers, and
    (iii) The names of firms that attended any pre-bid or pre-proposal 
conferences.
    (2) Other requests for information under the Freedom of Information 
Act shall be processed in accordance with FAR 24.2 and 1824.2.

[62 FR 14016, Mar. 25, 1997]



1805.403  Requests from Members of Congress. (NASA supplements paragraph (a))

    (a) All proposed replies to congressional inquiries shall be 
prepared and forwarded, with full documentation, to the Headquarters 
Office of Legislative Affairs (Code L) for approval and release.



                   Subpart 1805.5--Paid Advertisements



1805.502  Authority.

    Use of paid advertisements for procurement purposes (except CBD 
announcements) is not authorized in NASA.



PART 1806--COMPETITION REQUIREMENTS--Table of Contents




  Subpart 1806.2--Full and Open Competition After Exclusion of Sources

Sec.
1806.202 Establishing or maintaining alternative sources.
1806.202-70 Formats.

          Subpart 1806.3--Other Than Full and Open Competition

1806.302 Circumstances permitting other than full and open competition.
1806.302-4 International agreement.
1806.302-470 Documentation.
1806.302-7 Public interest.
1806.303 Justifications.
1806.303-1 Requirements.
1806.303-170 Sole-source purchases by contractors.
1806.303-2 Content.
1806.303-270 Use of unusual and compelling urgency authority.
1806.304-70 Approval of NASA justifications.

                  Subpart 1806.5--Competition Advocates

1806.501 Requirement.
1806.502 Duties and responsibilities.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 40545, Aug. 5, 1996, unless otherwise noted.



  Subpart 1806.2--Full and Open Competition After Exclusion of Sources



1806.202  Establishing or maintaining alternative sources. (NASA supplements paragraphs (a) and (b))

    (a) The authority of FAR 6.202 is to be used to totally or partially 
exclude a particular source.
    (b) The supporting data and the D&F must name the source to be 
excluded and shall include the following information as applicable and 
any other relevant information:
    (i) The specific purpose to be served in excluding the source as 
enumerated in FAR 6.202(a).
    (ii) The acquisition history of the supplies or services, including 
sources, prices, quantities, and dates of award.
    (iii) The circumstances making it necessary to exclude a particular 
source from the contract action:
    (A) Reasons for lack of sources; e.g., the technical complexity and 
criticality of the item.
    (B) Current annual requirement and prospective needs for the 
supplies and services.
    (C) Projected future requirements.
    (iv) Whether the existing source must be totally excluded from the 
action or

[[Page 197]]

whether a partial exclusion is sufficient.
    (v) The potential effect of exclusion on the excluded source in 
terms of any loss of capability to furnish the supplies or services in 
subsequent contract actions.
    (vi) When the authority of FAR 6.202(a)(1) is cited, the basis for--
    (A) Assumptions regarding future competition; and
    (B) The determination that exclusion of a particular source will 
likely result in reduced overall costs for anticipated future 
acquisitions, including (as a minimum) discussion of start-up costs, 
costs associated with facilities, duplicative administration costs (such 
as for additional inspection or testing), economic order quantities, and 
life-cycle-cost considerations.
    (vii) When an additional source or additional sources must be 
established to provide production capacity to meet current and 
mobilization requirements--
    (A) The current annual and the mobilization requirements for the 
item, citing the source of, or the basis for, the planning data;
    (B) A comparison of current production capacity with current and 
mobilization requirements; and
    (C) The hazards of relying on the present source and the time 
required for new sources to acquire the necessary facilities and skills 
and achieve the production capacity necessary to meet requirements.



Sec. 1806.202-70  Formats.

    A sample format for D&Fs citing the authority of FAR 6.202(a) 
follows:

   National Aeronautics and Space Administration, Washington, DC 20546

                       Determination and Findings

                      Authority to Exclude a Source

    On the basis of following findings and determination, which I make 
under the authority of 10 U.S.C. 2304(b)(1) as implemented by FAR 6.202, 
the proposed contract action described below may be awarded using full 
and open competition after exclusion of------(1).

                                Findings

    1. It is proposed that the following requirement be acquired using 
full and open competition after exclusion of the source identified 
above.
    2. The source identified above can be expected to receive an award 
for this requirement unless excluded.
    3. It is necessary to establish or maintain an alternative source or 
sources.
    4. The exclusion of this source will increase or maintain 
competition and is likely to result in reduction of ------(2) in overall 
costs for any anticipated acquisition of the supplies or services being 
acquired. This estimate is based on ------ (3).
    (See Note 4 for the use of Alternates I and II below.)
    Alternate I: The exclusion of this source will serve the national 
defense interest by having an alternative supplier available for 
furnishing the supplies or services being acquired, in case of a 
national emergency or industrial mobilization, because------(5).
    Alternate II: The exclusion of this source will serve the national 
defense interest by establishing or maintaining an essential 
engineering, research, or development capability of an educational or 
other nonprofit institution or a federally funded research and 
development center, because------(5).

                              Determination

    The exclusion of the source identified above will increase or 
maintain competition and is likely to result in reduced overall costs 
for any anticipated acquisition of the supplies or services being 
acquired.
    (See Note 4 for the use of Alternates I and II below.)
    Alternate I: It is in the interest of the national defense to 
exclude the source identified above in order to have an alternative 
supplier available for furnishing the supplies or services being 
acquired, in case of a national emergency or industrial mobilization.
    Alternate II: It is in the interest of national defense to exclude 
the source identified above in order to establish or maintain an 
essential engineering, research, or development capability to be 
provided by an educational or other nonprofit institution or a federally 
funded research and development center.
Date------------

    Notes:
    1. Name of source to be excluded.
    2. Description of estimated reduction in overall costs.
    3. Description of how estimate was derived.
    4. In paragraph 4 and in the Determination, the basic wording is 
appropriate when FAR 6.202(a)(1) applies; Alternate I is appropriate 
when FAR 6.202(a)(2) applies; and Alternate II is appropriate when FAR 
6.202(a)(3) applies.
    5. Description of circumstances necessitating the exclusion of the 
identified source.

[[Page 198]]



          Subpart 1806.3--Other Than Full and Open Competition



Sec. 1806.302  Circumstances permitting other than full and open competition.



Sec. 1806.302-4  International agreement.



Sec. 1806.302-470  Documentation.

    Pursuant to 10 U.S.C. 2304(f)(2)(E), an individual justification for 
other than full and open competition under the authority of FAR 6.302-4 
is not required when the procurement officer signs a Memorandum for the 
Record that:
    (a) Describes the specific terms of the international agreement or 
treaty that limit acquisitions in support of, or as a result of, the 
agreement or treaty to less than full and open competition; and
    (b) Is included in each official contract file in the place for 
filing a Justification for Other than Full and Open Competition (see 
NASA Form 1098).

[61 FR 40545, Aug. 5, 1996, as amended at 63 FR 12997, Mar. 17, 1998; 63 
FR 32763, June 16, 1998]



1806.302-7  Public interest. (NASA supplements paragraph (c))

    (c)(2) The notice to Congress shall be made by NASA Headquarters, 
Office of Legislative Affairs (Code L). Code HS shall request the notice 
to be made immediately upon approval of a D&F and shall advise the 
contracting activity of the date upon which the notification period 
ends.
    (3) The contracting officer shall prepare the D&F required by FAR 
6.302-7(c)(1) in any format that clearly documents the determination and 
the supporting findings.

[61 FR 40545, Aug. 5, 1996, as amended at 65 FR 12484, Mar. 9, 2000]



1806.303  Justifications.



1806.303-1  Requirements. (NASA supplements paragraphs (b) and (d))

    (b) Justifications for using less than full and open competition may 
be prepared by the technical office initiating the contract action when 
it is recommending the use of the justification authority, or by the 
contracting officer if the technical office does not make such a 
recommendation.
    (d) The contracting officer shall send a copy of each approved 
justification or D&F that cites the authority of FAR 6.302-3(a)(2)(i) or 
FAR 6.302-7 to NASA Headquarters, Office of Procurement (Code HK), 
unless one of the exceptions at FAR 25.401 applies to the acquisition. 
The transmittal shall indicate that the justification is being furnished 
under FAR 6.303-1(d).

[61 FR 40545, Aug. 5, 1996, as amended at 64 FR 48561, Sept. 7, 1999; 65 
FR 10031, Feb. 25, 2000; 65 FR 31102, May 16, 2000]



1806.303-170  Sole-source purchases by contractors.

    The requirements of FAR part 6 and this part 1806 apply if NASA 
directs a prime contractor (by specifications, drawings, parts lists, or 
otherwise) to purchase items on a sole-source basis. Accordingly, 
procurement officers shall take necessary actions to ensure that such 
sole-source acquisitions are properly justified.

[61 FR 40545, Aug. 5, 1996, as amended at 67 FR 30603, May 7, 2002]



1806.303-2  Content.



1806.303-270  Use of unusual and compelling urgency authority.

    If the authority at FAR 6.302-2 is used for extending the 
performance period of an existing services contract, the justification 
shall contain the information required by FAR 6.303-2 and;
    (a) Documentation that the acquisition process for the successor 
contract was started early enough to allow for adequately planning and 
conducting a full and open competition, together with a description of 
the circumstances that prevented award in a timely manner; and
    (b) Documentation of the reasons why no other source could 
practicably compete for the interim requirement.



1806.304-70  Approval of NASA justifications.

    Concurrences and approvals for justifications of contract actions 
conducted in accordance with FAR subparts 6.2 and 6.3 shall be obtained 
as follows:

[[Page 199]]

    (a) For proposed contracts over $500,000 but not exceeding 
$10,000,000--
    (1) Concurring official: Procurement Officer
    (2) Approving official: Center or Headquarters Competition Advocate.
    (b) For proposed contracts over $10,000,000 but not exceeding 
$50,000,000--
    (1) Concurring officials:
    (i) Procurement Officer
    (ii) Center or Headquarters Competition Advocate
    (2) Approving official: Head of contracting activity.
    (c) For proposed contracts over $50,000,000--
    (1) Concurring officials:
    (i) Procurement Officer
    (ii) Center or Headquarters Competition Advocate
    (iii) Head of contracting activity.
    (iv) Agency Competition Advocate
    (2) Approving Official: Assistant Administrator for Procurement
    (d) The approval authority of FAR 6.304(a)(3) may not be delegated 
to other than the installation's Deputy Director.
    (e) For proposed contract actions requiring approval by the 
Assistant Administrator for Procurement, the original justification 
shall be forwarded to the Assistant Administrator for Procurement (Code 
HS).
    (f) Regardless of dollar value, class justifications shall be 
approved by the Assistant Administrator for Procurement.

[61 FR 40545, Aug. 5, 1996, as amended at 68 FR 23423, May 2, 2003]



                  Subpart 1806.5--Competition Advocates



1806.501  Requirement. (NASA paragraphs (1), (2), (3) and (4))

    (1) The Director, Program Operations Division, Code HS, is the 
agency competition advocate, reporting to the Assistant Administrator 
for Procurement on issues related to competition of NASA acquisitions.
    (2) The Center Deputy Directors or Associate Directors are the 
competition advocates for their contracting activities.
    (3) The Headquarters Chief Financial Officer, Code CF, is the 
competition advocate for the Headquarters contracting activity.
    (4) The Deputy Manager is the contracting activity competition 
advocate for the Space Station Program Office.

[61 FR 40545, Aug. 5, 1996, as amended at 64 FR 10571, Mar. 5, 1999; 68 
FR 45168, Aug. 1, 2003]



1806.502  Duties and responsibilities. (NASA supplements paragraph (b))

    (b)(i) Center competition advocates shall submit annual reports to 
the agency competition advocate (Code HS) on or before November 30.
    (ii) The agency competition advocate shall submit an annual agency 
report on or before January 31.



PART 1807--ACQUISITION PLANNING--Table of Contents




                    Subpart 1807.1--Acquisition Plans

Sec.
1807.103 Agency-head responsibilities.
1807.104 General procedures.
1807.105 Contents of written acquisition plans.
1807.107 Additional requirements for acquisitions involving bundling.
1807.107-70 Orders against Federal Supply Schedule contracts, 
          Governmentwide acquisition contracts (GWACs), or other 
          existing indefinite-delivery contracts.
1807.170 Acquisition Strategy Meeting (ASM).

   Subpart 1807.2--Planning for the Purchase of Supplies in Economic 
                               Quantities

1807.204 Responsibilities of contracting officers.

        Subpart 1807.3--Contractor Versus Government Performance

1807.307 Appeals.

            Subpart 1807.5--Inherently Governmental Functions

1807.503 Policy.

                Subpart 1807.70--Consolidated Contracting

1807.7000 General.

                    Subpart 1807.71--Master Buy Plan

1807.7100 General.
1807.7101 Applicability.

[[Page 200]]

1807.7102 Submission, selection, and notification procedures.
1807.7102-1 Submission of Master Buy Plan.
1807.7102-2 Submission of amendments to the Master Buy Plan.
1807.7102-3 Selection and notification procedures.
1807.7103 Format of Master Buy Plan.

                Subpart 1807.72--Acquisition Forecasting

1807.7200 Scope of subpart.
1807.7201 Definitions.
1807.7202 Policy.
1807.7203 Responsibilities.
1807.7204 Forecast data.
1807.7205 Public availability.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47068, Sept. 6, 1996, unless otherwise noted.



                    Subpart 1807.1--Acquisition Plans



1807.103  Agency-head responsibilities. (NASA supplements paragraphs (d) and (e))

    (d)(i) Except as provided in paragraph (d)(iii) of this section, 
acquisition plans shall be prepared according to the following:
    (A) For acquisitions requiring Headquarters approval, by an 
Acquisition Strategy Meeting (ASM) (see 1807.170);
    (B) For acquisitions not requiring Headquarters approval and 
expected to exceed $5 million, by installation-approved ASMs or written 
acquisition plans; and,
    (C) For acquisitions not expected to exceed $5 million, in 
accordance with installation procedures.
    (ii) The estimated dollar amounts shall include all options and 
later phases of the same program or project.
    (iii) Acquisition plans are not required for the following 
acquisitions:
    (A) Architect-engineering services;
    (B) Broad agency announcements (see 1835.016) or unsolicited 
proposals;
    (C) Basic research from nonprofit organizations;
    (D) Utility services available from only one source;
    (E) From or through other Government agencies except when the value 
of the acquisition meets the Master Buy Plan threshold (see 
1807.7101(a));
    (F) Industrial facilities required in support of related contracts; 
or
    (G) MidRange procedure awards (see part 1871). However, acquisition 
plans are required for commercial item acquisitions that exceed the 
MidRange dollar thresholds for noncommercial items.
    (iv) Acquisition plans shall be approved before soliciting 
proposals.
    (v) Approval of an acquisition plan does not constitute approval of 
any special conditions, or special clauses that may be required unless 
the plan so specifies, and the individual having approval authority is a 
signatory of the plan. All required deviations shall be approved through 
the procedures described in FAR 1.4 and 1801.4.
    (vi) A single acquisition plan may be used for all phases of a 
phased acquisition provided the plan fully addresses each phase, and no 
significant changes occur after plan approval to invalidate the 
description of the phases. If such significant changes do occur, the 
plan shall be amended and approved at the same level as the original 
plan.
    (e) Acquisition plans should be prepared on a program or system 
basis when practical. In such cases, the plan should fully address all 
component acquisitions of the program or system.

[61 FR 47068, Sept. 6, 1996, as amended at 65 FR 45306, July 21, 2000]



1807.104  General procedures (NASA supplements paragraph (a)).

    (a) The acquisition planning team shall obtain input from the center 
offices responsible for matters of safety and mission assurance, 
occupational health, environmental protection, information technology, 
export control, and security. Their presence on the team shall help to 
ensure that all NASA acquisitions are structured in accordance with NASA 
safety, occupational health, environmental, export control, and security 
policy. As part of this process, the team shall recommend any 
appropriate solicitation or contract requirements for implementation of 
safety, occupational health, environmental, information technology, 
export control, and security concerns (See NPG 8715.3, NASA Safety 
Manual; NPG 7120.5, NASA Program and Project Management Processes and 
Requirements; NPG 2810.1, Security of Information Technology, and NPG 
1620.1,

[[Page 201]]

Security Procedures and Guidelines, all available at 
www.nodis.hq.nasa.gov).

[65 FR 37058, June 13, 2000]



1807.105  Contents of written acquisition plans. (NASA supplements paragraphs (a) and (b))

    Acquisition plans shall address each applicable topic listed in FAR 
7.105, as supplemented by this section. Plans shall be structured by 
subject heading using each italicized topic heading in the same sequence 
as presented in the FAR. Subheadings should be used when appropriate 
(e.g., the separate items under contracting considerations at 
7.105(b)(4)). Topics not applicable to a given acquisition (e.g., 
design-to-cost and should-cost are not compatible with service 
acquisitions), should be marked N/A. The requirements in FAR 7.105 
regarding performance-based contracting methods shall not be limited to 
acquisition plans for service contracts.
    (a)(1) Describe in nontechnical terms the supplies or services to be 
acquired. Include quantities.
    (2) NPG 7120.5 shall be an integral part of acquisition planning for 
programs and projects subject to its requirements. If the NPG does not 
apply, the acquisition plan shall clearly state that fact. If the NPG 
does apply, specify whether all required NPG 7120.5 documentation is 
current and approved (see 1804.7301(b)(2)(i)). If not, describe the 
approach for obtaining approval or the authority to proceed without 
approval before release of draft or final solicitations. For programs 
and projects under the NPG, all draft or final solicitations subject to, 
or directly or substantially in support of, those programs or projects 
shall clearly identify the program or project of which they are part.
    (3) Identify the estimated cost and describe the estimating 
methodology.
    (5) Specify the delivery or performance period requirements 
separately by the basic contract, each option, and the total.
    (7) Discuss project/program risks (see NPG 7120.5, NASA Program and 
Project Management Processes and Requirements). In addition to 
technical, schedule, and cost risks, the discussion shall include such 
considerations as: safety and security (including personnel, information 
technology, and facilities/property); the need to involve foreign 
sources (contractor and/or governmental), and risks of unauthorized 
technology transfer (see NPD 2110.1D and Export Control Program (http://
www.hq.nasa.gov/office/codei/nasaecp/ecpolicy.html)); and resource risk, 
including the necessary level and expertise of NASA personnel resources 
available to manage the project/program. For each area of risk 
identified, the discussion shall include a quantification of the 
relative magnitude (e.g., high, medium, low) together with the specific 
actions taken to structure the acquisition approach to manage the risks 
throughout the acquisition process. For example, this discussion would 
identify those areas that have safety risk, discuss how safety is 
addressed in contract requirements and evaluated in the source 
selection, and how it will be managed and incentivized during contract 
performance. Decisions to accept, mitigate, track, and/or research risk 
factors shall be identified and documented as part of acquisition 
planning.
    (8) Streamlining applies to all NASA acquisitions. Describe all 
planned streamlining procedures.
    (b)(3) Address how cost realism will be evaluated.
    (4)(A) If an incentive contract is planned, describe the planned 
incentive(s) and the anticipated effects.
    (B) Describe subcontracting issues, including all applicable 
subcontracting goals. (See FAR part 19 and part 1819).
    (5)(A) Identify the estimated cost separately by the basic contract, 
each option and total amount.
    (B) Identify the funding by fiscal year and unique project number 
(UPN).
    (C) Discuss planned approaches to eliminate funding shortfalls (vs. 
the estimated cost).
    (6) Identify the type of work statement/specification planned. 
Specifically address the applicability of performance-based requirement 
descriptions and the availability of commercial sources for the 
supplies/services.
    (b) (10) Address contract management issues, including--
    (A) Planned delegations of administrative functions; and

[[Page 202]]

    (B) When contract changes are anticipated, the plan to manage such 
changes and the specific measures that will be taken to minimize the 
issuance of undefinitized contract actions.
    (20) If the period between release of solicitation to contract award 
is more than 120 calendar days (180 days for formal SEB competitions), 
explain why that goal cannot be met.

[61 FR 47068, Sept. 6, 1996, as amended at 62 FR 36705, July 9, 1997; 62 
FR 58687, Oct. 30, 1997; 63 FR 12997, Mar. 17, 1998; 64 FR 14641, Mar. 
26, 1999; 65 FR 37058, June 13, 2000; 65 FR 70315, Nov. 22, 2000; 65 FR 
82296, Dec. 28, 2000; 66 FR 53546, Oct. 23, 2001]



1807.107  Additional requirements for acquisitions involving bundling.

    (c) Requests for approval of proposed bundlings that do not meet the 
thresholds in FAR 7.107(b) must be sent to the Headquarters Office of 
Procurement (Code HS).
    (e) The substantial bundling documentation requirement applies to 
each proposed NASA bundling expected to exceed $5 million or more. The 
contracting officer must forward the documentation along with the 
measurable benefits analysis required by FAR 7.107(b) to the 
Headquarters Office of Procurement (Code HS) in sufficient time to allow 
a minimum of 10 days for review.

[65 FR 46876, Aug. 1, 2000]



1807.107-70  Orders against Federal Supply Schedule contracts, Governmentwide acquisition contracts (GWACs), or other existing indefinite-delivery contracts.

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

[65 FR 46876, Aug. 1, 2000]



1807.170  Acquisition Strategy Meeting (ASM).

    (a) The ASM is an acquisition plan conducted through a meeting 
attended by all interested NASA offices. At the meeting, the acquisition 
plan topics and structure specified in 1807.105 are presented in 
briefing format, and formal written minutes prepared to summarize the 
decision, actions, and conclusions of the ASM members. The approved 
minutes, along with the briefing charts, shall be included in the 
contract file to document completion of the acquisition plan required by 
1807.103.
    (b) The ASM is not a requirements definition meeting. It is a 
meeting to seek approval for the proposed acquisition approach for 
requirements that were previously defined and agreed to by the cognizant 
offices.
    (c) Headquarters ASMs will be chaired by the Assistant Administrator 
for Procurement or designee. The Headquarters Office of Procurement 
(Code HS) will prepare the minutes of Headquarters ASMs and distribute 
them to all attendees for review prior to approval by the ASM 
chairperson.
    (d) For field installation ASMs, the minutes shall be approved in 
accordance with installation procedures.



   Subpart 1807.2--Planning for the Purchase of Supplies in Economic 
                               Quantities



1807.204  Responsibilities of contracting officers.

(NASA supplements paragraph (a))
    (a) The contracting officer shall transmit in writing to the 
cognizant inventory management/requirements office either the actual 
offeror responses or a summary of their salient points. The transmittal 
should be made within five working days after the closing date for 
receipt of offers; however, if a response indicates the potential for a 
significant savings, it should be transmitted immediately.



        Subpart 1807.3--Contractor Versus Government Performance



1807.307  Appeals. (NASA supplements paragraph (a))

    (a) Installations shall establish appeals procedures in accordance 
with NMI 7410.3, Delegation of Authority for Acquisition of Commercial 
Activities for NASA's Use.

[[Page 203]]



            Subpart 1807.5--Inherently Governmental Functions



1807.503  Policy. (NASA supplements paragraph (e))

    (e) The field installation requirements office shall provide the 
contracting officer the written determination that none of the statement 
of work tasks are inherently governmental. Disagreements regarding the 
determination shall be resolved in accordance with installation 
procedures.



                Subpart 1807.70--Consolidated Contracting



1807.7000  General.

    The Consolidated Contracting Initiative (CCI) is NASA's commitment 
to the cooperative creation and utilization of contracts, whenever 
practicable, to meet common Agency needs. CCI aims at improving 
acquisition efficiency by identifying and logically combining similar 
requirements. Complete information on the initiative, with its 
implementation guidance, is available on the Internet (http://
prod.nais.nasa.gov/cgi-bin/cci/first.cgi).

[62 FR 36705, July 9, 1997, as amended at 63 FR 32763, June 16, 1998; 65 
FR 45306, July 21, 2000; 68 FR 45168, Aug. 1, 2003]



                    Subpart 1807.71--Master Buy Plan



1807.7100  General.

    The Master Buy Plan provides information on planned acquisitions to 
enable management to focus its attention on a representative selection 
of high-dollar-value and otherwise sensitive acquisitions.



1807.7101  Applicability.

    (a) The Master Buy Plan applies to each negotiated acquisition, 
including supplemental agreements and acquisitions through or from other 
Government agencies, where the dollar value, including the aggregate 
amount of options, follow-on acquisitions, or later phases of multi-
phase acquisitions, is expected to equal or exceed $50,000,000.
    (b) For initial annual Master Buy Plan submission only, each 
installation shall submit its three largest acquisitions regardless of 
dollar value and all acquisitions over $50,000,000.
    (c) The procedure also applies to:
    (1) Any supplemental agreement that contains either new work, a 
debit change order, or a credit change order (or any combination/
consolidation thereof), if the absolute value of the actions equals or 
exceeds $50,000,000 (e.g., the absolute value of a supplemental 
agreement adding $30,000,000 of new work and deleting $30,000,000 of 
work is $60,000,000, and is therefore subject to the Master Buy Plan).
    (2) Any supplement agreement that contains one or more elements (new 
work and/or individual change orders) of a sensitive nature that, in the 
judgment of the installation or Headquarters, warrants Headquarters 
consideration under the Master Buy Plan, even though the value does not 
equal or exceed $50,000,000.
    (3) Any cooperative agreement notice where the total value (the 
Government's contribution plus the contribution of the recipient) of any 
resulting cooperative agreement is expected to equal or exceed 
$50,000,000.
    (4) Any acquisition designated by NASA Headquarters regardless of 
its value.
    (d) The Master Buy Plan does not apply to incremental funding 
actions or termination settlement agreements.

[61 FR 47068, Sept. 6, 1996, as amended at 65 FR 45306, July 21, 2000]



1807.7102  Submission, selection, and notification procedures.



1807.7102-1  Submission of Master Buy Plan.

    (a) Prior to July 15th of every year, each installation shall submit 
to the Headquarters Office of Procurement (Code HS) a Master Buy Plan 
(electronically or original and eight copies) for the next fiscal year, 
listing every known acquisition that
    (1) Meets the criteria in 1807.7101,
    (2) Is expected to be initiated in that fiscal year, and
    (3) Has not been included in a previous Master Buy Plan or amendment 
to a Master Buy Plan.
    (b) The fiscal year Master Buy Plan shall list all uncompleted 
acquisitions selected for Headquarters review and

[[Page 204]]

approval from prior Master Buy Plans and amendments to Master Buy Plans. 
These acquisitions should be listed by the appropriate fiscal year 
Master Buy Plan and individual item numbers, and should indicate the 
current status of the individual acquisition documents previously 
selected for Headquarters review and approval.
    (c) Plans shall be prepared in accordance with 1807.7103 and shall 
identify the individual acquisition documents involved for every 
acquisition listed. Acquisition documents that may require Headquarters 
approval will be held in abeyance until receipt of the notification 
required by 1807.7102-3. This is not to preclude the planning for or 
initiation of such documents up to that point where Headquarters 
approval may be required.



1807.7102-2  Submission of amendments to the Master Buy Plan.

    (a) Acquisitions identified by installations after submission of 
their Master Buy Plan and meeting the criteria in 1807.7102-1(a) shall 
be submitted to Headquarters in accordance with 1807.7103 and identified 
as an amendment to the fiscal year Master Buy Plan submission.
    (b) Master Buy Plan submissions should not be accomplished after the 
fact. Amendments shall be submitted sufficiently in advance of contract 
award date to allow Headquarters to select those acquisition documents 
that will be subject to Headquarters review and approval without 
creating an unacceptable delay in contract placement.
    (c) When timely submittal is not possible, the installation shall 
provide with the amendment a narrative explaining the circumstances 
leading to the late submittal. A Master Buy Plan submission for a 
contract change order expected to meet the criteria in 1807.7101 shall 
be submitted to Headquarters immediately upon issuance of the change 
order.



1807.7102-3  Selection and notification procedures.

    (a) The Headquarters Office of Procurement (Code HS) shall select 
acquisition documents from the Master Buy Plan and amendments to Master 
Buy Plans to receive Headquarters review and approval and shall 
designate source selection officials.
    (b) When, subsequent to document selection or delegation, an 
acquisition is changed (for example, increase or decrease in dollar 
amount, change in requirement), canceled, superseded, deferred, or 
becomes no longer subject to the Master Buy Plan procedures in 
accordance with the criteria in 1807.7101, the installation shall 
immediately notify Code HS, giving the reasons. Code HS shall notify the 
installation's procurement office in writing of any further action that 
may be required.
    (c) Acquisition documents not selected for Headquarters review will 
be subject to after-the-fact reviews by Headquarters during normal 
procurement management surveys or other special reviews. Acquisition 
delegations may subsequently be rescinded if a Headquarters review is 
deemed appropriate.



1807.7103  Format of Master Buy Plan.

    In accordance with the requirements of 1807.7102-1 and 1807.7102-2, 
installations must prepare Master Buy Plans and amendments to Master Buy 
Plans in accordance with the Master Buy Plan Database (MBPD) 
instructions at http://www/hq.nasa.gov/office/procurement/regs/
Table1807.doc and submit them in accordance with the MBPD User Manual 
Instructions listed at http://ec.msfc.nasa.gov/hq/library/mbp.User--
Guide.html.

[66 FR 53546, Oct. 23, 2001]



                Subpart 1807.72--Acquisition Forecasting



1807.7200  Scope of subpart.

    This subpart prescribes the acquisition forecasting procedure 
required to comply with the Business Opportunity Development Reform Act 
of 1988.



1807.7201  Definitions.

    Class of contracts means a grouping of acquisitions, either by 
dollar value or by the nature of supplies and services to be acquired.
    Contract opportunity means planned new contract awards exceeding 
$25,000.

[[Page 205]]



1807.7202  Policy.

    As required by statute, it is NASA policy to
    (a) Prepare an annual forecast and semiannual update of expected 
contract opportunities or classes of contract opportunities for each 
fiscal year;
    (b) Include in the forecast contract opportunities that small 
business concerns, including those owned and controlled by socially and 
economically disadvantaged individuals, may be capable of performing; 
and
    (c) Make available such forecasts to the public.



1807.7203  Responsibilities.

    (a) NASA Procurement Officers shall post the data required by 
1807.7204 directly to the NASA Acquisition Internet Service not later 
than October 1 for the annual forecast and April 15 for the semiannual 
update.
    (b) Code HS will manage policy and monitor compliance with the NASA 
Acquisition Forecast process.

[64 FR 5620, Feb. 4, 1999]



1807.7204  Forecast data.

    (a) The annual forecast shall contain--
    (1) Summary historical data (based on information provided by the 
Headquarters Office of Procurement (Codes HC and HS)) on the class of 
contract opportunities below the simplified acquisition threshold;
    (2) Identification of all known contract opportunities in excess of 
the simplified acquisition threshold. Each such action should be 
identified as one of the three broad categories of acqusition--Research 
and Development, Services, or Supplies and Equipment and shall include 
the following information:
    (i) A brief description not to exceed ten typed lines;
    (ii) Approximate dollar value within the following dollar ranges: 
$100,000 to $1,000,000; $1,000,000 to $5,000,000; and over $5,000,000;
    (iii) Anticipated time (by fiscal year quarter) for the issuance of 
the solicitation;
    (iv) Identification if it is reserved for performance by small 
business concerns including those owned and controlled by socially and 
economically disadvantaged individuals;
    (v) Identification as competitive or noncompetitive; and
    (vi) Identification and telephone number of a center point of 
contact.
    (b) The semiannual report shall be an update of the data provided by 
the annual forecast. This update should provide information on new 
requirements not previously reported and on changes in data related to 
actions previously identified.



1807.7205  Public availability.

    The annual forecast and semiannual update are available on the NASA 
Acquisition Internet Service (http://www.hq.nasa.gov/office/procurement/
).

[62 FR 58687, Oct. 30, 1997]



PART 1808--REQUIRED SOURCES OF SUPPLIES AND SERVICES--Table of Contents




Sec.
1808.003 Use of other Government supply sources.
1808.003-70 Acquisition of radioisotopes.
1808.003-71 Acquisition of liquid hydrogen.
1808.003-72 Acquisition of propellants.
1808.003-73 Acquisition of mercury.

                Subpart 1808.1--Excess Personal Property

1808.103 Information on available excess personal property.

                Subpart 1808.4--Federal Supply Schedules

1808.404 Using schedules.
1808.404-3 Requests for waivers.

    Subpart 1808.6--Acquisition From Federal Prison Industries, Inc.

1808.605 Clearances.

Subpart 1808.7--Acquisition From Nonprofit Agencies Employing People Who 
                     Are Blind or Severely Disabled

1808.705 Procedures.
1808.705-1 General.

      Subpart 1808.8--Acquisition of Printing and Related Supplies

1808.802 Policy.
1808.870 Contract clause.

               Subpart 1808.11--Leasing of Motor Vehicles

1808.1100 Scope of subpart.


[[Page 206]]


    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 47073, Sept. 6, 1996, unless otherwise noted.



1808.003  Use of other Government supply sources.



1808.003-70  Acquisition of radioisotopes.

    (a) U.S. Department of Energy Isotope and Technical Service Order 
Form CA-10-90.COM, and U.S. Nuclear Regulatory Commission Application 
for Material License, NRC Form 313, shall be used to acquire 
radioisotopes.
    (b) NRC Form 313 shall be filed with the Chief, Radioisotopes 
Licensing Branch, Division of Fuel Cycle and Material Safety, United 
States Nuclear Regulatory Commission, Washington, DC 20555. If the 
application meets all regulatory requirements and applicable standards, 
the Radioisotopes Licensing Branch, Nuclear Regulatory Commission, will 
issue a license to the applicant. After receipt of the license, a 
completed DOE Form CA-10-90.COM (in duplicate, if the contracting office 
wants an accepted copy of the form back from the supplier), the license, 
and a Government bill of lading shall be sent to the appropriate DOE 
laboratory. If a bill of lading is not furnished, shipment shall be made 
collect on a commercial bill of lading, to be converted at destination.
    (c) NRC Form 313 and DOE Form CA-10-90.COM may be requisitioned 
directly from the United States Nuclear Regulatory Commission, Attn: 
Radioisotopes Licensing Branch, Division of Fuel Cycle and Material 
Safety, Washington, DC 20555.
    (d) Guidance is available from DOE at URL http://www.ornl.gov/
isotopes/catalog.htm.

[64 FR 5620, Feb. 4, 1999, as amended at 65 FR 12484, Mar. 9, 2000. 
Redesignated at 67 FR 68533, Nov. 12, 2002]



1808.003-71  Acquisition of liquid hydrogen.

    Requests for liquid hydrogen shall be submitted to the John F. 
Kennedy Space Center, National Aeronautics and Space Administration, 
Kennedy Space Center, FL 32899, Attn: Director of Logistics Operations.

[61 FR 47073, Sept. 6, 1996. Redesignated at 67 FR 68533, Nov. 12, 2002]



1808.003-72  Acqusition of propellants.

    (a) General. NASA (and its contractors when authorized in accordance 
with 1851.1) may acquire the items listed in paragraph (j) of this 
section (except for liquid hydrogen; see 1808.002-71) on a reimbursable 
basis from the San Antonio Air Logistics Center (SA-ALC), Kelly Air 
Force Base, Texas, under the Air Force Missile Procurement Fund (MPF). 
The Air Force MPF shall be used as a supply source for propellants 
whenever there are economic or other advantages to the Government. Field 
installations and offices obtaining supplies from the MPF shall comply 
with the reporting requirements of paragraph (f) of this section.
    (b) Requests for acquisition. To obtain the materials listed in 
paragraph (j) of this section from the Air Force MPF, NASA contracting 
offices will execute a NASA-Defense Purchase Request (NASA Form 523) 
(see 1853.303-523) and forward it to Headquarters, SA-ALC, Kelly Air 
Force Base, TX 78241, Attention: SFS. The following additional 
information should be provided on the form:
    (1) Contract number (when material is required for use by a NASA 
contractor).
    (2) Delivery address.
    (3) Mode of transportation (rail, trailer, barge, etc.). When the 
procurement request covers requirements for materials not previously 
forecasted or covers significant changes to previously reported 
requirements, SA-ALC should be notified immediately of such 
requirements.
    (c) Delivery requests.
    (1) A delivery request is a call on the Air Force, made against a 
NASA-Defense Purchase Request (NASA Form 523), specifying the time and 
place of delivery. On the basis of the estimated requirements, the Air 
Force will notify NASA field installations and contractors of the name 
and address of the Air Force office or producing contractor's plant to 
which requests for delivery of materials shall be made. Delivery 
requests may be placed by any means of

[[Page 207]]

communication that time justifies; however, all verbal requests for 
delivery must be confirmed in writing within 24 hours. The delivery 
request, whether oral or written, must cite the NASA-Defense Purchase 
Request number under which the material is being ordered and contain the 
following information:
    (i) Nomenclature and National Stock Number.
    (ii) Quantity.
    (iii) Program, project, and task.
    (iv) Contract number (when material is required for use by a NASA 
contractor).
    (v) Delivery address.
    (vi) Dates of delivery.
    (vii) Mode of transportation.
    (viii) Location of weighting stations and scales (if weighing of the 
products before delivery is required).
    (2) Each delivery request shall be numbered as follows to simplify 
identification and control: the last two digits of the calendar year; a 
dash; and a consecutive number beginning with 1 to run through the year 
(e.g., 89-5, for the fifth request made in 1989). Changes to a request 
are identified by adding an alphabetical designator beginning with (A) 
to the number.
    (d) Receiving procedures.
    (1) Receiving documents. Receipt of materials shall be evidenced on 
the receiving document received with the shipment by the signature of an 
individual authorized by NASA to receive materials from the Air Force. 
Every effort should be made to ensure that the NASA-Defense Purchase 
Request number is recorded on the receiving document before signing.
    (2) Weighing facilities. Local weighing facilities (NASA-owned, 
contractor-owned, commercial, or State-operated) may be used to 
determine quantities of product received. If a discrepancy exists 
between the quantities shown on receiving documents and the quantities 
actually received--
    (i) A certified weighing ticket evidencing actual weight at 
destination shall be obtained; and
    (ii) A copy of the receiving document (AF Form 857 or DD Form 250) 
and the original weighting ticket shall be forwarded to Headquarters, 
SA-ALC, Kelly Air Force Base, TX 78241, Attention: ACFOM, identifying 
the discrepancy.
    (3) Distribution of receipts. Copies of all receiving documents 
except the AF Form 857 shall be transmitted to the Headquarters, SA-ALC, 
Kelly Air Force Base, TX 78241, Attention: SACAOM. Receiving documents 
may be accumulated and submitted on the 10th, 20th, and last day of each 
month.
    (e) Billing. The costs of materials obtained through the MPF are 
reimbursable. After delivery, a Standard Form 1080 (Voucher for 
Transfers Between Appropriations and/or Funds (Disbursement)), supported 
by documentary evidence of delivery, will be submitted by Headquarters, 
SA-ALC to the NASA installation designated in the NASA Form 523.
    (f) Reporting requirements.
    (1) Field installations shall submit periodic estimates of 
requirements for materials listed in paragraph (j) of this section for 
all programs under their cognizance, including in-house contractor 
requirements. Reports shall be submitted in duplicate on AF Form 858, 
Forecast of Propellant Requirements.
    (2) The reports shall be forwarded no later than June 1 and December 
1 to reach Headquarters, SA-ALC, Kelly AFB, TX 78241, Attn: SFS. 
Supplemental reports advising of additions to or significant changes in 
previous reports may be submitted at any time. The reports, covering all 
materials listed in paragraph (j) of this section, due in June and 
December, shall begin with requirements as of the following July 1 and 
January 1, respectively, and shall cover a 3-year period. Requirements 
shall be shown by month for the first 6 months, and by quarters for the 
remaining 2\1/2\-year period.
    (3) Estimated requirements and other pertinent data required from 
contractors shall be obtained on Air Force Form 858.
    (g) Report content. Reports shall be made using a separate report 
form for each material and shall provide, for each item of material, 
the--
    (1) Contract number;
    (2) Program and/or project;
    (3) Specific task within the project;
    (4) End use when not associated with the named program or project;
    (5) Contractor's name;

[[Page 208]]

    (6) Specific location of use (shipping destination); and
    (7) Planned source of supply.
    (h) Basis for developing materials requirements. In computing 
requirements, consideration shall be given to such elements as lead 
time, waste factors, transfer, and storage losses so that phased 
requirements reflect the total gross quantities required to be delivered 
to the use or storage site. Since the requirements estimates are being 
used by other Government agencies acting as supply sources to contract 
for materials, estimates must be as accurate as possible.
    (i) NASA coordination. The Kennedy Space Center shall coordinate the 
review of all data and establish NASA policy and procedures. The data 
shall be used as the basis for NASA requirements reports to various 
Government agencies for planning and supply support.
    (j) Table of reportable materials.

Ammonia, Technical (Anhydrous) (Low Oil Content) 99.97 percent purity, 
    Spec 0-A-445
Argon Gas, 6000 PSI, AFPID 6830-5
Propellant, Ammonia, Liquid, Anhydrous 99.5 percent purity, Spec MIL-P-
    27406
Propellant, Chlorine Trifluoride, Spec MIL-P-81399
Propellant, Deuterium, Gaseous, AFPID 9135-20
Propellant, Fluorine, Gaseous, Spec MIL-P-27405
Propellant, Fluorine, Liquid, Spec MIL-P-27405
Helium, Technical Grade A, Spec BB-H-1168
Propellant, Isopropyl Alcohol, AFPID 9135-18
Propellant, Hydrazine, Standard Grade, Spec MIL-P-26536
Propellant, Hydrazine, Monopropellant Grade, Spec MIL-P-26536
Propellant, Hydrazine/Unsymmetrical Dimethylhydrazine, Spec MIL-P-27402
Propellant, Hydrogen, Gaseous, Type I, Spec MIL-P-27201
Propellant, Hydrogen, Liquid, Type II, Spec MIL-P-27201
Propellant, Hydrogen Peroxide, Spec MIL-P-16005
Propellant, Hydrogen Peroxide, Electrolytic Process, Spec MIL-P-16005
Propellant, Jet Fuel, Grade RJ-1, Spec MIL-F-25558
Propellant, JPX, 50 percent UDMH-50 percent JP-4, Spec MIL-P-26694
Propellant, JPX, 17 percent UDMH-83 percent JP-4, Spec MIL-P-26694
Propellant, Kerosene, Grade RP-1, Spec MIL-P-25576
Propellant, Monomethyl Hydrazine, Spec MIL-P-27404
Propellant, Neon, Liquid, AFPID 9135-16
Propellant, Nitric Acid, Type IIIB, Spec MIL-P-7254
Propellant, Nitric Acid, Type III LS, Spec MIL-P-7254
Propellant, Nitric Acid, Type IV (High Density Acid), Spec MIL-P-7254
Propellant, Nitrogen Tetroxide (NTO) (MON-1) (MON-3), Spec MIL-P-26539
Propellant, Nitrogen Tetroxide (NTO), MIL-P-26539
Propellant, Nitrogen Tetroxide (MON-1), Spec MIL-P-26539
Propellant, Nitrogen Tetroxide (MON-3), Spec MIL-P-26539
Propellant, Oxygen, Grade B, Spec MIL-P-25508
Propellant, Oxygen, Grade A, Spec MIL-P-25508
Propellant, Oxygen, Grade F, Spec MIL-P-25508
Propellant Pressurizing Agent, Helium, Spec MIL-P-27407, 99.995 pct min 
    assay
Propellant Pressurizing Agent, Nitrogen, Type II, Liquid Grade C, Spec 
    MIL-P-27401
Propellant Pressurizing Agent, Nitrogen, Type I, Gaseous Grade A, Spec 
    MIL-P-27401
Propellant Pressurizing Agent, Nitrogen, Type I, Grade B, Spec MIL-P-
    27401
Propellant Pressurizing Agent, Nitrogen, Type II, Grade A, Spec MIL-P-
    27401
Propellant Pressurizing Agent, Nitrogen, Type II, Grade B, Spec MIL-P-
    27401
Propellant, Unsymmetrical Dimethyl-hydrazine, Spec MIL-P-25604
Propellant, Nitrogen Trifluoride Spec MIL-P-87896
Propellant, Pressurizing Agent, Argon, Liquid, AFPID 9135-19

[61 FR 47073, Sept. 6, 1996, as amended at 65 FR 46627, July 31, 2000. 
Redesignated at 67 FR 68533, Nov. 12, 2002]

[[Page 209]]



1808.003-73  Acquisition of mercury.

    (a) Requests for mercury by NASA installations for their use or for 
use by their cost-reimbursement type contractors shall be made to the 
Mercury Contract Specialist, Directorate of Stockpile Contracts, DLA, 
Defense National Stockpile Center, 8725 John J. Kingman Rd., 
3339, Ft. Belvoir, VA 22060-6223. DLA will furnish the current 
fair market value to NASA. The unit of issue is a 76-pound flask.
    (b) Requests for clearance to purchase quantities of 76 pounds or 
more from sources other than DLA shall be submitted to the office in 
paragraph (a) of this section and must be accompanied by a statement of 
reasons why the available excess mercury is unsuitable for use by the 
requesting field installation.

[61 FR 47073, Sept. 6, 1996. Redesignated at 67 FR 68533, Nov. 12, 2002]



                Subpart 1808.1--Excess Personal Property



1808.103  Information on available excess personal property.

    In addition to the sources identified in FAR 8.103, information on 
availability of NASA excess property is maintained by the Installation 
Property Disposal Officer and the NASA Equipment Management System 
(NEMS) Coordinator.



                Subpart 1808.4--Federal Supply Schedules



1808.404  Using schedules.



1808.404-3  Requests for waivers. (NASA supplements paragraphs (a) and (b)).

    (a) The head of the NASA office initiating the procurement request 
or a designated representative shall furnish the NASA contracting office 
a signed statement identifying the supplies or services to be purchased 
and explaining why similar items listed in the applicable schedule will 
not meet the requirement.
    (b) If a waiver is not granted, the case shall be referred to the 
Assistant Administrator for Procurement (Code HS) for a final decision 
as to whether the non-schedule item will be purchased. The Assistant 
Administrator for Procurement shall promptly notify the Commissioner, 
Federal Supply Service, GSA, and the contracting office of the decision.



    Subpart 1808.6--Acquisition From Federal Prison Industries, Inc.



1808.605  Clearances. (NASA supplements paragraphs (a) and (c)).

    (a) NASA purchase orders or contracts written pursuant to a general 
or blanket clearance need not be supported by a copy of the clearance, 
but the clearance number must be cited on the purchase order or contract 
as well as on the initial voucher. A copy of the clearance certificate 
must be attached to the initial voucher.
    (c) When disputes occur, the contracting officer shall refer the 
matter to the Assistant Administrator for Procurement (Code HS) for 
review and any further action. Such referrals shall include a complete 
statement of the attempts made to resolve the matter.



Subpart 1808.7--Acquisition From Nonprofit Agencies Employing People Who 
                     are Blind or Severely Disabled



1808.705  Procedures.



1808.705-1  General.

    The Federal Standard Requisitioning and Issue Procedure (Federal 
Property Management Regulation, Subpart 101-26.2) shall be used to 
obtain nonprofit agency-produced supplies from GSA supply distribution 
facilities.



      Subpart 1808.8--Acquisition of Printing and Related Supplies



1808.802  Policy.

    (b)(i) The Headquarters Chief Information Officer (Code AO) is the 
NASA central printing authority.
    (ii) Requests for approval to contract for printing supplies or 
services shall be addressed to Code AO. Approval to contract for such 
supplies or services is restricted to those requirements meeting the 
following conditions:

[[Page 210]]

    (A) An individual order is under $1,000;
    (B) The order is not of a continuing or repetitive nature; and,
    (C) The Public Printer certifies it cannot be provided more 
economically through the GPO.

[66 FR 53546, Oct. 23, 2001]



1808.870  Contract clause.

    The contracting officer shall insert the clause at 1852.208-81, 
Restrictions on Printing and Duplicating, in solicitations and contracts 
where there is a requirement for any printing, and/or any duplicating/
copying in excess of that described in paragraph (c) of the clause.



               Subpart 1808.11--Leasing of Motor Vehicles



1808.1100  Scope of subpart.

    NASA procedures for leasing motor vehicles from GSA or commercial 
sources are contained in NPD 6000.1, Transportation Management.

[61 FR 47073, Sept. 6, 1996, as amended at 65 FR 12484, Mar. 9, 2000]



PART 1809--CONTRACTOR QUALIFICATIONS--Table of Contents




           Subpart 1809.1--Responsible Prospective Contractors

Sec.
1809.104-4 Subcontractor responsibility.
1809.106 Preaward surveys.
1809.106-1 Conditions for preaward surveys.
1809.106-2 Requests for preaward surveys.
1809.106-3 Interagency preaward surveys.
1809.106-70 Preaward surveys performed by NASA installations.

               Subpart 1809.2--Qualifications Requirements

1809.200 Scope of subpart.
1809.202 Policy.
1809.203 QPL's, QML's, and QBL's.
1809.203-70 General.
1809.203-71 Waiver of qualification requirements.
1809.206 Acquisitions subject to qualification requirements.
1809.206-1 General.
1809.206-70 Small businesses.
1809.206-71 Contract clause.

        Subpart 1809.4--Debarment, Suspension, and Ineligibility

1809.403 Definitions.
1809.404 List of Parties Excluded from Federal Procurement and 
          Nonprocurement programs.
1809.405 Effect of listing.
1809.405-1 Continuation of current contracts.
1809.405-2 Restrictions on subcontracting.
1809.406 Debarment.
1809.406-3 Procedures.
1809.407 Suspension.
1809.407-3 Procedures.
1809.408 Certification regarding debarment, suspension, proposed 
          debarment, and other responsibility matters.
1809.470 Reporting of suspected evasive actions and causes for debarment 
          or suspension.
1809.470-1 Situations requiring reports.
1809.470-2 Contents of reports.
1809.470-3 Addresses and copies of reports.

   Subpart 1809.5--Organizational and Consultant Conflicts of Interest

1809.500 Scope of subpart.
1809.503 Waiver.
1809.506 Procedures.
1809.507 Solicitation provisions and contract clause.
1809.507-2 Contract clause.

              Subpart 1809.6--Contractor Team Arrangements

1809.670 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47075, Sept. 6, 1996, unless otherwise noted.



           Subpart 1809.1--Responsible Prospective Contractors



1809.104-4  Subcontractor responsibility.

    Generally, the Canadian Commercial Corporation's (CCC) proposal of a 
firm as its subcontractor is sufficient basis for an affirmative 
determination of responsibility. However, when the CCC determination of 
responsibility is not consistent with other information available to the 
contracting office, the contracting officer shall request from the CCC 
and any other sources whatever information is necessary to make the 
responsibility determination.
    Upon request, CCC shall be furnished the rationale for any 
subsequent determination of nonresponsibility.

[[Page 211]]



1809.106  Preaward surveys.



1809.106-1  Conditions for preaward surveys. (NASA supplements paragraph (a)).

    (a)(i) Preaward surveys are used only to assist the contracting 
officer to make determinations of responsibility under FAR 9.104. They 
are not to be used to obtain information useful to proposal evaluation 
that does not directly relate to the responsibility determination. 
Accordingly, preaward surveys shall not be used except in rare 
circumstances when determination of responsibility cannot be made 
without the specific information that can be provided only in a preaward 
survey report and only after all other means of obtaining the required 
information have been explored.
    (ii) Surveys shall not be performed for companies of any size 
performing study or research contracts.
    (iii) The procurement officer shall approve all preaward survey 
requests.



1809.106-2  Requests for preaward surveys. (NASA supplements paragraph (a))

    (a) The ``Walsh-Healey Public Contracts Act'' block of Section I is 
for information purposes only. If information is needed for a 
determination on the offeror's eligibility under the Walsh-Healey Act, 
it must be specifically requested in block 20.H. of Section III.



1809.106-3  Interagency preaward surveys. (NASA supplements paragraph (a))

    If the survey will be performed for NASA by a DOD agency, the SF 
1403 request is to be sent to the appropriate office shown in the DOD 
Directory of Contract Administration Services Components, DLAH 4105.4, 
Attn: Preaward Survey Monitor. DOD normally allows seven working days in 
which to conduct a full survey and submit the report to the requesting 
agency.

[61 FR 47075, Sept. 6, 1996, as amended at 62 FR 36705, July 9, 1997]



1809.106-70  Preaward surveys performed by NASA installations.

    In discussions with representatives of the company being surveyed, 
NASA preaward survey team members shall not refer to or comment on the 
possibility of award to the prospective contractor. This does not 
preclude discussion with a prospective contractor of questionable areas 
that require clarification. Information obtained during the survey will 
be treated in strict confidence and divulged only to those Government 
representatives having a need to know.



               Subpart 1809.2--Qualifications Requirements



1809.200  Scope of subpart.

    This subpart prescribes policies and procedures to be followed in 
the use of qualified products lists for acquisition of parts consistent 
with the policies of NASA Policy Directive 8730.2, NASA Parts Policy.

[64 FR 36606, July 7, 1999]



1809.202  Policy. (NASA supplements paragraphs (a) and (e))

    (a) Authority regarding agency head actions under FAR 9.202(a) is 
delegated to the cognizant technical activity, with approval by the 
installation's competition advocate.
    (e) The approval authority of FAR 9.202(e) is delegated to the 
installation's competition advocate. Requests shall be prepared by the 
cognizant requirements office and submitted via the procurement officer.



1809.203  QPL's, QML's and QBL's.



1809.203-70  General. (NASA supplements paragraph (a))

    (a) The Deputy Associate Administrator for the Office of Safety and 
Mission Assurance (Code Q), is responsible for justifying, determining, 
and approving NASA's need for inclusion and continued use of 
qualification requirements in specifications under the NASA EEE Parts 
and Advanced Interconnect Program.

[[Page 212]]



1809.203-71  Waiver of qualification requirements.

    When acquiring a product under a specification that includes 
qualification requirements either for the end item or for components of 
the end item, the NASA installation conducting the acquisition can waive 
the qualification requirements. Directing a waiver of the end item 
qualification requirement constitutes adequate authorization for waiver 
of product qualification requirements. When a waiver has been granted, 
the solicitation shall specifically indicate that the qualification 
requirement is inapplicable. Such information shall also be included in 
any synopsis of the acquisition (see FAR subpart 5.2).



1809.206  Acquisitions subject to qualification requirements.



1809.206-1  General. (NASA supplements paragraph (b) and (c))

    (b)(i) The authority to determine that an emergency exists is 
delegated to the installation's competition advocate. Requests for 
determination shall be prepared by the cognizant requirements office and 
submitted through the procurement officer.
    (ii) Requests not to enforce a qualification requirement in a 
nonemergency situation shall be prepared by the cognizant requirements 
office and approved by the Headquarters Office of Safety and Mission 
Assurance (Code Q).
    (c) If an offeror seeks to demonstrate its capability, both the 
product and the producer must meet the established standards.



1809.206-70  Small businesses.

    If a small business otherwise eligible for award has been placed in 
a special status on a Qualified Products List (Mil-Bul-103) or the 
Qualified Manufacturers List (QML-38510) established as a part of the 
NASA Microelectronics Reliability Program and the contracting officer 
determines that the small business does not appear to have the capacity 
to perform, the certificate of competency procedures in FAR subpart 19.6 
are applicable.



1809.206-71  Contract clause.

    When qualified products (end items or components of end items) are 
being procured, the contracting officer shall insert the clause at 
1852.209-70, Product Removal from Qualified Products List, in the 
solicitation and in the resulting contract.



        Subpart 1809.4--Debarment, Suspension, and Ineligibility



1809.403  Definitions.

    For purposes of FAR subpart 9.4 and this subpart, the Assistant 
Administrator for Procurement is the ``debarring official,'' the 
``suspending official,'' and the agency head's ``designee.''



1809.404  List of parties excluded from Federal procurement and nonprocurement programs. (NASA supplements paragraphs (c) and (d))

    (c) The Office of Procurement (Code HK) is responsible for taking 
the actions listed in FAR 9.404(c).
    (d)(1) Installation procurement offices shall notify Code HK of how 
many copies of the List they want and provide a single mailing address 
at the installation. Code HK will place the order for the copies which 
will be mailed directly to the installation. Electronic access is also 
available as described in the List.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



1809.405  Effect of listing

    If it is believed that a new contract or subcontract must be awarded 
to a firm on the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs, the procurement officer shall prepare a request 
for a determination with all necessary supporting information and 
forward it to the Assistant Administrator for Procurement (Code HK) for 
approval.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]

[[Page 213]]



1809.405-1  Continuation of current contracts. (NASA supplements paragraph (c))

    (c) Approval of contract renewals or extensions shall be requested 
in accordance with 1809.405.



1809.405-2  Restrictions on subcontracting. NASA supplements paragraph (a)).

    (a) Approval of consent to subcontract shall be requested in 
accordance with 1809.405.



1809.406  Debarment.



1809.406-3  Procedures. (NASA supplements paragraph (a))

    (a) The report required by FAR 9.406-3(a) shall be prepared in 
accordance with 1809.470.



1809.407  Suspension.



1809.407-3  Procedures. (NASA supplements paragraph (a))

    (a) Reports shall be prepared in accordance with 1809.470.



1809.408  Certification regarding debarment, suspension, proposed debarment, and other responsibility matters. (NASA supplements paragraph (a))

    (a)(2) (A) If the offeror indicates that it has been indicted, 
charged, convicted, or had a civil judgment rendered against it, the 
contracting officer shall immediately notify the Assistant Administrator 
for Procurement (Code HK), providing details as known, and shall await a 
response before awarding the contract.
    (B) If the offeror discloses information that indicates a need for a 
debarment or suspension determination, the contracting officer shall 
report the facts to the Assistant Administrator for Procurement (Code 
HK) in accordance with 1809.470.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



1809.470  Reporting of suspected evasive actions and causes for debarment or suspension.



1809.470-1  Situations requiring reports.

    A report incorporating the information required by 1809.470-2 of 
this subpart shall be forwarded by the procurement officer to the 
Assistant Administrator for Procurement (Code HK) when a contractor:
    (a) Has committed, or is suspected of having committed, any of the 
acts described in FAR 9.406-2 and 9.407-2; or
    (b) Is suspected of attempting to evade the prohibitions of a 
debarment or suspension imposed under the FAR by changes of address, 
multiple addresses, formation of new companies, or other devices.

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



1809.470-2  Contents of reports.

    Each report shall be coordinated with local counsel and shall 
include substantially the following information, if available:
    (a) Name and address of the contractor.
    (b) Names of the principal officers, partners, owners, or managers.
    (c) All known affiliates, subsidiaries, or parent firms, and the 
nature of the affiliation.
    (d) A description of the contract or contracts concerned, including 
the contract number and office identifying numbers or symbols, the 
amount of each contract, the amounts paid the contractor and still due, 
and the percentage of work completed and to be completed.
    (e) The status of vouchers.
    (f) Whether the contract has been assigned pursuant to the 
Assignment of Claims Act, and, if so, the name and address of the 
assignee and a copy of the assignment.
    (g) Whether any other contracts are outstanding with the contractor 
or any affiliates, and, if so, their amount, whether they are assigned 
pursuant to the Assignment of Claims Act, and the amounts paid or due on 
them.

[[Page 214]]

    (h) A complete summary of all pertinent evidence. If a request for 
debarment or suspension is based on an indictment or a conviction, 
provide the evidence upon which the indictment or conviction is based.
    (i) An estimate of any damages, sustained by the Government as a 
result of the contractor's action, including an explanation of the 
method used in making the estimate.
    (j) Recommendation as to
    (1) Whether the contractor should be suspended or debarred,
    (2) Whether any limitations should be applied to such action,
    (3) Whether current contracts should be terminated, and
    (4) The period of any debarment.
    (k) As an enclosure, a copy of the contract(s) or pertinent 
excerpts, appropriate exhibits, testimony or statements of witnesses, 
copies of assignments, and other relevant documentation.



1809.470-3  Addresses and copies of reports.

    Reports, including enclosures, shall be submitted to the Office of 
Procurement (Code HK), with an additional copy to the Headquarters 
Office of General Counsel (Code G).

[61 FR 47075, Sept. 6, 1996, as amended at 63 FR 32763, June 16, 1998]



   Subpart 1809.5--Organizational and Consultant Conflicts of Interest



1809.500  Scope of subpart.

    The Assistant Administrator for Procurement has authorized the 
procurement officer to take those actions reserved in FAR subpart 9.5 
for the head of the contracting activity. However, see 1809.503 
regarding waivers.



1809.503  Waiver.

    The Administrator has designated the Assistant Administrator for 
Procurement as the approval authority for waivers under FAR 9.503. The 
procurement officer shall forward requests for waivers under FAR 9.503 
to the Assistant Administrator for Procurement (Code HS) for action.



1809.506  Procedures. (NASA supplements paragraph (b))

    (b) The approving official is the procurement officer when the 
installation has source selection authority and the Assistant 
Administrator for Procurement (Code HS) when NASA Headquarters has that 
authority.



1809.507  Solicitation provisions and contract clause.



1809.507-2  Contract clause.

    The contracting officer may insert a clause substantially the same 
as the clause at 1852.209-71, Limitation of Future Contracting, in 
solicitations and contracts.



              Subpart 1809.6--Contractor Team Arrangements



1809.670  Contract clause.

    The contracting officer shall insert the clause at 1852.209-72, 
Composition of the Contractor, in all construction invitations for bids 
and resulting contracts. The clause may be used in other solicitations 
and contracts to clarify a contractor team arrangement where the prime 
contractor consists of more than one legal entity, such as a joint 
venture.



PART 1811--DESCRIBING AGENCY NEEDS--Table of Contents




Sec.
1811.002 Policy.

     Subpart 1811.1--Selecting and Developing Requirements Documents

1811.101 Order of precedence for requirements documents.
1811.107 Solicitation provisions.

            Subpart 1811.4--Delivery or Performance Schedules

1811.403 Supplies or services.
1811.403-70 Packaging, handling, and transportation.
1811.404 Contract clauses.
1811.404-70 NASA contract clauses.

                   Subpart 1811.5--Liquidated Damages

1811.501 Policy.

[[Page 215]]

               Subpart 1811.6--Priorities and Allocations

1811.600 Scope of subpart.
1811.602 General.
1811.603 Procedures.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47078, Sept. 6, 1996, unless otherwise noted.



1811.002  Policy. (NASA supplements paragraph (b))

    (b) Implementation of the Metric Conversion Act of 1975, as amended, 
must be in accordance with NPD 8010.2B, Use of the Metric System of 
Measurements in NASA Programs.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37061, June 13, 2000]



     Subpart 1811.1--Selecting and Developing Requirements Documents



1811.101  Order of precedence for requirements documents.

    (a) Safeguards to ensure safety, security, and environmental 
protection must be included, as applicable, in requirements documents.
    (b)(1) Requirements for the use of energy efficient motor vehicles 
will be established in accordance with NPG 6200.1, ``NASA Transportation 
and General Traffic Management''.
    (2) Requirements for the use of environmentally preferable products 
will be established in accordance with NPG 8830.1, ``Affirmative 
Procurement Plan for Environmentally Preferable Products.'' Requirements 
for the use of energy and water efficient products and the use of 
renewable energy technology will be established in accordance with NPG 
8570.1, ``Energy Conservation Technologies and Practices.''

[67 FR 30603, May 7, 2002, as amended at 68 FR 43333, July 22, 2003]



1811.107  Solicitation provisions. (NASA supplements paragraph (b))

    (b) NASA uses the categorical method to report its use of voluntary 
consensus standards.
    Therefore, use of the provision at 52.211-7 is not required. 
However, contracting officers must include in draft RFPs (DRFPs) the 
information required by 1815.201(c)(6)(A).

[65 FR 12484, Mar. 9, 2000]



            Subpart 1811.4--Delivery or Performance Schedules



1811.403  Supplies or services. (NASA supplements paragraph (a))

    (a)(3) Contract delivery or performance schedules must not be 
expressed in terms of a notice of award. A notice of award as a specific 
document, separate from the award document itself, is not a contractual 
document and must not be used as a reference point for contract 
performance. See 1814.408 for additional information on notices of 
award.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37062, June 13, 2000]



1811.403-70  Packaging, handling, and transportation.

    (a) NPG 6000.1E, ``Requirements for Packaging, Handling, and 
Transportation for Aeronautical and Space Systems, Equipment, and 
Associated Components'' provides guidance for shipment of certain NASA 
items.
    (b) Contracting officers, with the advice of the requiring activity 
and the Center Transportation Officer, must include a designation of 
each deliverable item, or groupings of deliverable items, as Class I, 
II, III, or IV for purposes of contractor compliance with the NPG.

[65 FR 37062, June 13, 2000]



811.404  Contract clauses. (NASA supplements paragraph (a))

    (a)(2) FAR 52.211-8, Time of Delivery, Alternates II and III, must 
not be used in NASA contracts.
    (3) FAR 52.211-9, Desired and Required Time of Delivery, Alternates 
II and III, must not be used in NASA contracts.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37062, June 13, 2000]



1811.404-70  NASA contract clauses.

    The clause at 1852.211-70, Packaging, Handling, and Transportation, 
must be included in solicitations and contracts

[[Page 216]]

for deliverable items, including software, designated as Class I 
(mission essential), Class II (delicate or sensitive), or Class III 
(requires special handling or monitoring).

[65 FR 37062, June 13, 2000]



                   Subpart 1811.5--Liquidated Damages



1811.501  Policy.

    (d) The procurement officer must forward recommendations concerning 
remission of liquidated damages to the Headquarters Office of 
Procurement (Code HS).

[65 FR 58931, Oct. 3, 2000]



               Subpart 1811.6--Priorities and Allocations



1811.600  Scope of subpart.

    The Defense Priorities and Allocations System (15 CFR part 700) may 
be viewed at http://www.doc-bxa.bmpcoe.org/dpas-docs/dpasreg.pdf.

[68 FR 45168, Aug. 1, 2003]



1811.602  General. (NASA supplements paragraph (c))

    (c) The Department of Defense is the ``Delegate Agency'' for NASA. 
The Headquarters Office of Procurement (Code HK) must coordinate with 
DOD, as necessary, to ensure that any DOD requirements are met.

[61 FR 47078, Sept. 6, 1996, as amended at 65 FR 37062, June 13, 2000; 
66 FR 29727, June 1, 2001]



1811.603  Procedures.

    (NASA supplements paragraphs (e) and (g).)
    (e)(i) Rated orders may be used by NASA only as provided in Section 
700.17 of the DPAS (15 CFR 700.17) and subject to the limitations 
provided in Section 700.18 of the DPAS (15 CFR 700.18). Priority ratings 
are assigned on individual contracts and purchase orders by the 
contracting officer.
    (ii) NASA rated orders may only be assigned a DO rating, unless NASA 
has obtained a DX rating from the Department of Defense.
    (iii) The following program identification symbols may be used on 
NASA rated contracts and purchase orders for equipment and services that 
support authorized programs (see Schedule I of the DPAS):

A1--Aircraft
A2--Missiles
A3--Ships
A5--Weapons
A6--Ammunition
A7--Electronic and Communications Equipment
B1--Military Building Supplies
B8--Production Equipment (For Contractor's Account)
B9--Production Equipment (Government-Owned)
C2--Construction
C3--Maintenance, Repair, and Operating Supplies for Facilities
C9--Miscellaneous/Other

    (g) Installation requests for assistance shall be directed to the 
Headquarters Office of Procurement (Code HK).

[66 FR 29727, June 1, 2001]



PART 1812--ACQUISITION OF COMMERCIAL ITEMS--Table of Contents




        Subpart 1812.1--Acquisition of Commercial Items--General

Sec.
1812.102 Applicability.

  Subpart 1812.3--Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

1812.301 Solicitation provisions and contract clauses for the 
          acquisition of commercial items.
1812.302 Tailoring of provisions and clauses for the acquisition of 
          commercial items.

 Subpart 1812.4--Unique Requirements Regarding Terms and Conditions for 
                            Commerical Items

1812.404 Warranties.

         Subpart 1812.70--Commercial Space Hardware or Services

1812.7000 Prohibition on guaranteed customer bases for new commercial 
          space hardware or services.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.

[[Page 217]]



        Subpart 1812.1--Acquisition of Commercial Items--General



1812.102  Applicability. (NASA supplements paragraph (c))

    (c) For the acquisition of commercial items of any value, the 
MidRange procedures described in part 1871 may be used to the extent 
they are consistent and compliant with FAR part 12 and part 1812. Unless 
specifically stated, in any conflict between these parts the descending 
order of precedence is FAR part 12, part 1812, and part 1871.



  Subpart 1812.3--Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



1812.301  Solicitation provisions and contract clauses for the acquisition of commercial items. (NASA supplements paragraph (f))

    (f)(i) The following clauses are authorized for use in acquisitions 
of commercial items when required by the clause prescription:
    (A) 1852.204-74, Central Contractor Registration.
    (B) 1852.214-71, Grouping for Aggregate Award.
    (C) 1852.214-72, Full Quantities.
    (D) 1852.215-84, Ombudsman.
    (E) 1852.219-75, Small Business Subcontracting Reporting.
    (F) 1852.219-76, NASA 8 Percent Goal.
    (G) 1852.223-70, Safety and Health.
    (H) 1852.223-71, Frequency Authorization.
    (I) 1852.223-72, Safety and Health (Short Form).
    (J) 1852.223-73, Safety and Health Plan.
    (K) 1852.223-75, Major Breach of Safety and Security.
    (L) 1852.228-72, Cross-Waiver of Liability for Space Shuttle 
Services.
    (M) 1852.228-76, Cross-Waiver of Liability for Space Station 
Activities.
    (N) 1852.228-78, Cross-Waiver of Liability for NASA Expendable 
Launch Vehicles.
    (O) 1852.246-72, Material Inspection and Receiving Report.

[64 FR 19926, Apr. 23, 1999, as amended at 64 FR 51078, Sept. 21, 1999; 
65 FR 37058, June 13, 2000; 65 FR 50153, Aug. 17, 2000; 66 FR 18052, 
Apr. 5, 2001]



1812.302  Tailoring of provisions and clauses for the acquisition of commercial items. (NASA supplements paragraph (c))

    (c) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for waivers. Requests shall be prepared and submitted 
in accordance with 1801.471.



 Subpart 1812.4--Unique Requirements Regarding Terms and Conditions for 
                            Commercial Items



1812.404  Warranties.

    (b) In acquisitions under the Simplified Acquisition Threshold 
specified in FAR part 13, no express warranty should be required other 
than the offeror's commercial warranty.



         Subpart 1812.70--Commercial Space Hardware or Services



1812.7000  Prohibition on guaranteed customer bases for new commercial space hardware or services.

    Public Law 102-139, title III, Section 2459d, prohibits NASA from 
awarding a contract with an expected duration of more than one year if 
the primary effect of the contract is to provide a guaranteed customer 
base for, or establish an anchor tenancy in, new commercial space 
hardware or services. Exception to this prohibition may be authorized 
only by an appropriations Act specifically providing otherwise.

[63 FR 40189, July 28, 1998]

[[Page 218]]



          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES



PART 1813--SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents




Sec.
1813.000 Scope of part.
1813.003 Policy.

                        Subpart 1813.1 Procedures

1813.106 Soliciting competition, evaluation of quotations or offers, 
          award and documentation.
1813.106-3 Award and documentation.

              Subpart 1813.3 Simplified Acquisition Methods

1813.301 Governmentwide commercial purchase card.
1813.301-70 Purchase card documentation.
1813.301-71 Training.
1813.301-72 Approving official.
1813.301-73 Program officials.
1813.302 Purchase orders.
1813.302-1 General.
1813.302-70 Purchase orders under section 8(a) of the Small Business 
          Act.
1813.302-570 NASA solicitation provisions.
1813.303 Blanket Purchase Agreements (BPAs).
1813.303-3 Preparation of BPAs.
1813.307 Forms.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 63 FR 40189, July 28, 1998, unless otherwise noted.



1813.000  Scope of part.

    FAR Part 13 and 1813 do not apply to NASA Research Announcements 
(NRA) and Announcements of Opportunity (AO). These acquisitions shall be 
conducted in accordance with the procedures in 1835.016-71 and 1872, 
respectively. However, awards resulting from NRAs or AOs that are to be 
made as procurement instruments, can be made as either a contract or a 
purchase order. When a purchase order is used, it must not exceed the 
simplified acquisition threshold and must include the appropriate 
clauses pertaining to data rights, key personnel requirements, and any 
other requirements determined necessary by the contracting officer. 
Contracting officers must determine whether obtaining the contractor's 
acceptance of the order is necessary (see FAR 13.302-3(a)).

[65 FR 46628, July 31, 2000]



1813.003  Policy. (NASA supplements paragraph (g))

    (g) Acquisitions under these simplified acquisition procedures shall 
be fixed-price, except as provided under the unpriced purchase order 
method in FAR 13.302-2.

[63 FR 40189, July 28, 1998, as amended at 64 FR 5620, Feb. 4, 1999]



                       Subpart 1813.1--Procedures



1813.106  Soliciting competition, evaluation of quotations or offers, award and documentation.



1813.106-3  Award and documentation. (NASA supplements paragraph (b))

    (b)(3)(ii) For purchases up to $50,000, documentation shall be 
limited to a brief notation in the file indicating the rationale for 
selecting other than the lowest priced offer.



             Subpart 1813.3--Simplified Acquisition Methods



1813.301  Governmentwide commercial purchase card. (NASA supplements paragraphs (a), (b), and (c))

    (a) The procurement officer or deputy procurement officer shall 
designate individual cardholders in accordance with center procedures, 
subject to the following limitations:
    (i) Personnel other than contracting officers may be designated as 
cardholders for micro-purchases and for individual orders under BPAs up 
to $5,000 (see 1813.303-3(a)(4)), provided they complete training 
adequate to ensure appropriate use of the purchase card.
    (ii) The procurement officer's designation shall be in writing and 
shall specify the scope of the cardholder's authority.
    (iii) The center shall establish and maintain administrative 
procedures and management controls required by the General Services 
Administration

[[Page 219]]

(GSA). Purchases made with the Governmentwide commercial purchase card 
shall comply with the instructions and procedures issued by GSA as well 
as applicable parts of the FAR and NFS.
    (b) The Governmentwide commercial purchase card may be used to order 
and pay for purchases under contracts established under FAR Part 8 
procedures, up to the simplified acquisition threshold (except see 
paragraph (a)(i) of this section for dollar limitations for personnel 
other than contracting officers).
    (c) The Governmentwide commercial purchase card may be used to order 
and pay for purchases in the circumstances described in FAR 13.301(c) up 
to the simplified acquisition threshold (except see paragraph (a)(i) of 
this section for limitations for personnel other than contracting 
officers). Except as authorized in paragraphs (b) and (c) of this 
section, the Governmentwide commercial purchase card may not be used for 
purchases in excess of $25,000. Purchases above the micro-purchase 
threshold shall comply with all applicable statutory and regulatory 
requirements, including the following:
    (i) Small business set-aside (see FAR 13.003(b)).
    (ii) Representations and certifications. The applicable items from 
the provision at FAR 52.212-3, Offeror Representations and 
Certifications--Commercial Items, shall be obtained for commercial or 
noncommercial purchases. This information may be obtained orally from 
vendors.
    (iii) Maximum practicable competition (see FAR 13.106-1).
    (iv) Implementation of the applicable contract clauses. This 
requirement may be satisfied by forwarding a completed SF 1449, 
appropriately modified to reflect purchase card terms, to the awardee 
after placing the order via the card, provided that the awardee must be 
notified of, and agree to, the applicability of the SF 1449 clauses when 
the order is placed.

[63 FR 40189, July 28, 1998, as amended at 65 FR 12484, Mar. 9, 2000]



1813.301-70  Purchase card documentation.

    Documentation of purchases shall be minimized. For transactions 
below the micro-purchase threshold, the card holder shall maintain a 
brief log of purchases and a file of monthly purchase card statements 
indicating whether item receipt has occurred. For purchases above the 
micro-purchase threshold, see 1813.106-3(b)(3)(ii).



1813.301-71  Training.

    All cardholders and approving officials must complete training prior 
to receiving a purchase card. Training will address the responsibilities 
of the cardholder and approving official, prohibited purchases, purchase 
limitations, and sources of supply.

[65 FR 82296, Dec. 28, 2000]



1813.301-72  Approving official.

    The approving official is the individual who reviews and approves a 
cardholder's monthly statement of purchases. The approving official 
shall be the cardholder's immediate or higher level supervisor; in no 
case shall cardholders approve their own statement of purchases. Unless 
center procedures otherwise provide for their designation, the 
procurement officer shall designate approving officials.



1813.301-73  Program officials.

    (a) The Langley Research Center, Office of Procurement (Code AG), is 
the agency program coordinator.
    (b) The procurement officer shall identify the center program 
coordinator and the center billing office point of contact, and provide 
their names to the agency program coordinator.

[63 FR 40189, July 28, 1998, as amended at 64 FR 51079, Sept. 21, 1999]



1813.302  Purchase orders.



1813.302-1  General.

    (a) See 1813.003(g).

[67 FR 50823, Aug. 6, 2002]



1813.302-70  Purchase orders under section 8(a) of the Small Business Act.

    Purchase orders made using simplified acquisition procedures are 
authorized for 8(a) acquisitions under the simplified acquisition 
threshold.

[[Page 220]]



1813.302-570  NASA solicitation provisions.

    (a)(1) The contracting officer may use the provision at 1852.213-70, 
Offeror Representations and Certifications--Other Than Commercial Items, 
in simplified acquisitions exceeding the mircro-purchase threshold that 
are for other than commercial items. This provision shall not be used 
for acquisition of commercial items as defined in FAR 2.101.
    (2) This provision provides a single, consolidated list of 
certifications and representations for the acquisition of other than 
commercial items using simplified acquisition procedures and is attached 
to the solicitation for offerors to complete and return with their 
offer.
    (i) Use the provision with its Alternate I in solicitations for 
acquisitions that are for, or specify the use of recovered materials 
(see FAR 23.4).
    (ii) Use the provision with its Alternate II in solicitations for 
the acquisition of research, studies, supplies, or services of the type 
normally acquired from higher education institutions (see FAR 26.3).
    (iii) Use the provision with its Alternate III in solicitation which 
include the clause at FAR 52.227-14, Rights in Data--General (see FAR 
27.404(d)(2) and 1827.404(d)).
    (b) The contracting officer may insert a provision substantially the 
same as the provision at 1852.213-71, Evaluation--Other than Commercial 
Items, in solicitations using simplified acquisition procedures for 
other than commercial items when a trade-off source selection process 
will be used, that is, factors in addition to technical acceptability 
and price will be considered. (See FAR 13.106.)

[67 FR 38904, June 6, 2002, as amended at 67 FR 50823, Aug. 6, 2002]



1813.303  Blanket Purchase Agreements (BPAs).



1813.303-3  Preparation of BPAs. (NASA supplements paragraph (a))

    (a)(4) Non-GS-1102 or -1105 personnel shall not be authorized to 
place individual orders under a BPA in an amount greater than $5,000. 
For sole source orders above $2,500, a contracting officer's 
determination is required in accordance with FAR 13.106-1(b)(1).



1813.307  Forms. (NASA supplements paragraphs (b), (c), and (d))

    (b) Installations may use locally prescribed forms.
    (c) Installations may use locally prescribed forms.
    (d) The SF 44 may be used for purchases of aviation fuel and oil of 
$10,000 or less.



PART 1814--SEALED BIDDING--Table of Contents




                  Subpart 1814.2--Solicitation of Bids

Sec.
1814.201 Preparation of invitations for bids.
1814.201-5 Part IV--Representations and instructions.
1814.201-6 Solicitation provisions.
1814.201-670 NASA solicitation provisions.

                   Subpart 1814.3--Submission of Bids

1814.302 Bid submission.

          Subpart 1814.4--Opening of Bids and Award of Contract

1814.404 Rejection of bids.
1814.404-1 Cancellation of invitations after opening.
1814.407 Mistakes in bids.
1814.407-3 Other mistakes disclosed before award.
1814.407-4 Mistakes after award.
1814.408 Award.
1814.408-1 General.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.



                  Subpart 1814.2--Solicitation of Bids



1814.201  Preparation of invitations for bids.



1814.201-5  Part IV--Representations and instructions. (NASA supplements paragraph (c))

    (c) Section M, Evaluation factors for award.
    (i) The contracting officer shall state if award is to be made in 
the aggregate (all-or-non basis) or by specified groups of items.
    (ii) if bidders are required to have special technical 
qualifications because

[[Page 221]]

of the complexity of the equipment being purchased or for some other 
reason, the contracting officer shall state those qualifications.



1814.201-6  Solicitation provisions.



1814.201-670  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.214-
70, Caution to Offerors Furnishing Descriptive Literature, in 
invitations for bids. See FAR 52.214-21, Descriptive Literature.
    (b) The contracting officer shall insert the provision at 1852.214-
71, Grouping for Aggregate Award, in invitations for bids, except for 
construction, when it is in the Government's best interest not to make 
award for less than specified quantities solicited for certain items or 
groupings of certain items. Insert the item numbers and/or descriptions 
applicable for the particular procurement.
    (c) The contracting officer shall insert the provision at 1852.214-
72, Full Quantities, in invitations for bids, except for construction, 
when it is in the Government's best interest not to make award for less 
than the full quantities solicited.
    (d) If a pre-bid conference is planned, the contracting officer 
shall insert the provision at 1852.215-77, Preproposal/Pre-bid 
Conference. See 1815.209-70(a).

[61 FR 47079, Sept. 6, 1996, as amended at 63 FR 9966, Feb. 27, 1998]



                   Subpart 1814.3--Submission of Bids



1814.302  Bid submission. (NASA supplements paragraph (b))

    (b) NASA contracting officers shall not consider telegraphic bids 
communicated by the telephone.



          Subpart 1814.4--Opening of Bids and Award of Contract



1814.404  Rejection of bids.



1814.404-1  Cancellation of invitations after opening. (NASA supplements paragraphs (c) and (e))

    (c) The authority to make the determination at FAR 14.404-1(c) is 
delegated to the contracting officer, except as provided in paragraph 
(e)(1) of this subsection.
    (e)(1) A determination that includes an authorization to complete 
the acquisition through negotiation shall be made by the procurement 
officer, in consultation with the chief counsel.



1814.407  Mistakes in bids.



1814.407-3  Other mistakes disclosed before award. (NASA supplements paragraph (e))

    (e) Procurement officers are authorized to make the determinations 
under FAR 14.407-3 (a), (b), (c) and (d).

[61 FR 47079, Sept. 6, 1996, as amended at 68 FR 45168, Aug. 1, 2003]



1814.407-4  Mistakes after award. (NASA supplements paragraph (d))

    (d) Determinations shall be made by the procurement officer.



1814.408  Award.



1814.408-1  General.

    (1) A notice of award as a specific document is used when the 
contracting officer needs to inform a responsible bidder that its offer 
was determined to be the most advantageous to the Government 
(considering only price and price-related factors) and that the formal 
award will be made upon satisfaction of specified pre-performance 
conditions.
    (2) The notice of award is not a contractual instrument. It does not 
authorize the successful bidder to perform and, in itself, does not 
obligate the Government to award a contractual document. Its limited 
purpose is to provide: evidence of the Government's selection of the 
successful bidder; instruction to that bidder to satisfy specified pre-
performance conditions; and a statement that the Government intends to 
award the contract to the successful bidder upon satisfaction of these 
conditions if a contract is awarded as a result of the invitation for 
bids.
    (3) Use of a notice of award is optional. The contracting officer 
may issue the award document itself without first issuing a notice of 
award. However, there are instances when a notice of award should be 
considered,

[[Page 222]]

for example, in construction contracts where performance or payment 
bonds are required. In such cases, the most cost effective technique is 
to require only the successful bidder to provide the necessary bonds. 
The notice of award advises the successful bidder to provide the bonds, 
and it also serves as formal evidence from the Government of the 
impending award if such evidence is required to secure the bonds.
    (4) The notice of award shall not be issued unless bids have been 
evaluated and a selection made, and a definitive contract document is 
ready for execution upon satisfaction of the conditions specified in the 
notice. Upon satisfaction of these conditions, the approved and executed 
contract instrument shall be provided to the successful bidder.
    (5) Since the notice of award is not a contractual document 
authorizing performance, the period of performance of the resultant 
contract shall not be based on the date of issuance or receipt of the 
notice of award. The period of performance specified in the contract 
shall be based on some other reference point, such as the date the 
contract is provided to the successful bidder, a mutually agreeable 
effective date of a later authorization to proceed date.
    (6) The notice of award can be issued by any formal written means 
such as a letter, telegram or electronic means. The notice should be 
substantially the same as the following format.

                                 Format

    Subject: Notice of Award--Invitation for Bids (IFB) (a). This notice 
is to advise you that your bid (b) in response to the subject IFB has 
been determined to be the most advantageous to the Government 
(considering only price and price-related factors). It is the 
Government's intention to award you a contract in the amount of (c) for 
this effort pending satisfaction of the following pre-performance 
conditions: (d)
    Evidence (e) of satisfaction of these conditions must be provided to 
the contracting officer by (f). In the event these conditions are not 
satisfied by this date, the Government reserves the right to award the 
contract to the bidder who submitted the next most advantageous bid.
    Please note that this notice of award is not a contractual document. 
It does not obligate the Government to award you, or any other bidder, a 
contract relative to the subject IFB, and it does not authorize you to 
proceed with contract performance or incur costs pursuant to such 
performance. Any costs incurred for contract performance prior to your 
receipt of a fully executed contract document are at your own risk and 
are not recoverable under any Government contract should the Government 
fail, for whatever reason, to award you a contract in response to the 
subject IFB.
    If a contract is awarded after evidence of satisfaction of the pre-
performance conditions listed above is provided to the contracting 
officer by the specified due date, the date of commencement of work will 
be provided with the formal award. This date will be based on (g).

    Notes. The contracting officer shall insert, where shown, the 
following information:
    (a) Identification of the IFB by number and title.
    (b) Identification of the contractor's bid.
    (c) The award price.
    (d) The preperformance conditions (e.g., any required payment and 
performance bonds).
    (e) The evidence required to satisfy the pre-performance conditions 
(e.g., the actual payment and performance bonds).
    (f) The date by which the evidence must be provided to the 
contracting officer.
    (g) Identification of the date for commencement of performance. The 
period of performance of the contract shall not be based on the date of 
issuance or receipt of the notice of award. It shall be based on the 
date the contract is provided to the successful bidder, a mutually 
agreeable effective date, or a later authorization to proceed date.



PART 1815--CONTRACTING BY NEGOTIATION--Table of Contents




  Subpart 1815.2--Solicitation and Receipt of Proposals and Information

Sec.
1815.201 Exchanges with industry before receipt of proposals.
1815.203 Requests for proposals.
1815.203-70 Installation reviews.
1815.203-71 Headquarters reviews.
1815.203-72 Risk Management.
1815.204 Contract format.
1815.204-2 Part I--The Schedule.
1815.204-5 Part IV--Representations and instructions.
1815.204-70 Page limitations.
1815.207 Handling proposals and information.
1815.207-70 Release of proposal information.
1815.207-71 Appointing non-Government evaluators as special Government 
          employees.
1815.208 Submission, modification, revision, and withdrawal of 
          proposals.

[[Page 223]]

1815.209 Solicitation provisions and contract clauses.
1815.209-70 NASA solicitation provisions.

                    Subpart 1815.3--Source Selection

1815.300 Scope of subpart.
1815.300-70 Applicability of subpart.
1815.303 Responsibilities.
1815.304 Evaluation factors and significant subfactors.
1815.304-70 NASA evaluation factors.
1815.305 Proposal evaluation.
1815.305-70 Identification of unacceptable proposals.
1815.305-71 Evaluation of a single proposal.
1815.306 Exchanges with offerors after receipt of proposals.
1815.307 Proposal revisions.
1815.308 Source selection decision.
1815.370 NASA source evaluation boards.

                    Subpart 1815.4--Contract Pricing

1815.403 Obtaining cost or pricing data.
1815.403-1 Prohibition on obtaining cost or pricing data.
1815.403-170 Waivers of cost or pricing data.
1815.403-3 Requiring information other than cost or pricing data.
1815.403-4 Requiring cost or pricing data.
1815.404 Proposal analysis.
1815.404-2 Information to support proposal analysis.
1815.404-4 Profit.
1815.404-470 NASA Form 634.
1815.404-471 NASA structured approach for profit or fee objective.
1815.404-471-1 General
1815.404-471-2 Performance risk.
1815.404-471-3 Contract type risk and working capital adjustment.
1815.404-471-4 Other considerations.
1815.404-471-5 Facilities capital cost of money.
1815.404-471-6 Modification to structured profit/fee approach for 
          nonprofit organizations.
1815.404-472 Payment of profit or fee under letter contracts.
1815.406 Documentation.
1815.406-1 Prenegotiation objectives.
1815.406-170 Content of the prenegotiation position memorandum.
1815.406-171 Installation reviews.
1815.406-172 Headquarters reviews.
1815.406-3 Documenting the negotiation.
1815.407 Special cost or pricing areas.
1815.407-2 Make-or-buy programs.
1815.408 Solicitation provisions and contract clauses.
1815.408-70 NASA solicitation provisions and contract clauses.

Subpart 1815.5--Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes

1815.504 Award to successful offeror.
1815.506 Postaward debriefing of offerors.
1815.506-70 Debriefing of offerors--Major System acquisitions.

                  Subpart 1815.6--Unsolicited Proposals

1815.602 Policy.
1815.604 Agency points of contact.
1815.606 Agency procedures.
1815.606-70 Relationship of unsolicited proposals to NRAs.
1815.609 Limited use of data.
1815.609-70 Limited use of proposals.
1815.670 Foreign proposals.

                       Subpart 1815.70--Ombudsman

1815.7001 NASA Ombudsman Program.
1815.7002 Synopses of solicitations and contracts.
1815.7003 Contract clause.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.



  Subpart 1815.2--Solicitation and Receipt of Proposals and Information



1815.201  Exchanges with industry before receipt of proposals. (NASA supplements paragraphs (c) and (f))

    (c)(6)(A) Except for acquisitions described in 1815.300-70(b), 
contracting officers shall issue draft requests for proposals (DRFPs) 
for all competitive negotiated acquisitions expected to exceed 
$1,000,000 (including all options or later phases of the same project). 
DRFPs shall invite comments from potential offerors on all aspects of 
the draft solicitation, including the requirements, schedules, proposal 
instructions, and evaluation approaches. Potential offerors should be 
specifically requested to identify unnecessary or inefficient 
requirements. If the DRFP contains Government-unique standards, 
potential offerors should be invited to identify voluntary consensus 
standards that meet the Government's requirements as alternatives to 
Government-unique standards cited as requirements, in accordance with 
FAR

[[Page 224]]

11.101 and OMB Circular A-119. Comments should also be requested on any 
perceived safety, occupational health, security (including information 
technology security), environmental, export control, and/or other 
programmatic risk issues associated with performance of the work. When 
considered appropriate, the statement of work or the specifications may 
be issued in advance of other solicitation sections.
    (B) Contracting officers shall plan the acquisition schedule to 
include adequate time for issuance of the DRFP, potential offeror review 
and comment, and NASA evaluation and disposition of the comments.
    (C) When issuing DRFPs, potential offerors should be advised that 
the DRFP is not a solicitation and NASA is not requesting proposals.
    (D) Whenever feasible, contracting officers should include a summary 
of the disposition of significant DRFP comments with the final RFP.
    (E) If performance-based payments are planned to be used in a 
competitive negotiated acquisition, the DRFP shall request potential 
offerors to suggest terms, including performance events or payment 
criteria. Contracting officers shall use that information to establish a 
common set of performance-based payments parameters in the formal RFP 
when practicable.
    (F) The procurement officer may waive the requirement for a DRFP 
upon written determination that the expected benefits will not be 
realized given the nature of the supply or service being acquired. The 
DRFP shall not be waived because of poor or inadequate planning.
    (f)(i) Upon release of the formal RFP, the contracting officer shall 
direct all personnel associated with the acquisition to refrain from 
communicating with prospective offerors and to refer all inquiries to 
the contracting officer or other authorized representative. This 
procedure is commonly known as a ``blackout notice'' and shall not be 
imposed before release of the RFP. The notice may be issued in any 
format (e.g., letter or electronic) appropriate to the complexity of the 
acquisition.
    (ii) Blackout notices are not intended to terminate all 
communication with offerors. Contracting officers should continue to 
provide information as long as it does not create an unfair competitive 
advantage or reveal proprietary data.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 65 
FR 12484, Mar. 9, 2000; 65 FR 31102, May 16, 2000; 65 FR 37059, June 13, 
2000]



1815.203  Requests for proposals.



1815.203-70  Installation reviews.

    (a) Installations shall establish procedures to review all RFPs 
before release. When appropriate given the complexity of the acquisition 
or the number of offices involved in solicitation review, centers should 
consider use of a single review meeting called a Solicitation Review 
Board (SRB) as a streamlined alternative to the serial or sequential 
coordination of the solicitation with reviewing offices. The SRB is a 
meeting in which all offices having review and approval responsibilities 
discuss the solicitation and their concerns. Actions assigned and 
changes required by the SRB shall be documented.
    (b) When source evaluation board (SEB) procedures are used in 
accordance with 1815.370, the SEB shall review and approve the RFP prior 
to issuance.



1815.203-71  Headquarters reviews.

    For RFPs requiring Headquarters review and approval, the procurement 
officer shall submit ten copies of the RFP to the Assistant 
Administrator for Procurement (Code HS). Any significant information 
relating to the RFP or the planned evaluation methodology omitted from 
the RFP itself should also be provided.

[65 FR 12485, Mar. 9, 2000]



1815.203-72  Risk management.

    In all RFPs and RFOs for supplies or services for which a technical 
proposal is required, proposal instructions shall require offerors to 
identify and discuss risk factors and issues throughout the proposal 
where they are relevant, and describe their approach to managing these 
risks.

[65 FR 70316, Nov. 22, 2000]

[[Page 225]]



1815.204  Contract format.



1815.204-2  Part I--The Schedule. (NASA supplements paragraph (c))

    (c) To the maximum extent practicable, requirements should be 
defined as performance based specifications/statements of work that 
focus on required outcomes or results, not methods of performance or 
processes.



1815.204-5  Part IV--Representations and instructions. (NASA supplements paragraph (b))

    (b) The information required in proposals should be kept to the 
minimum necessary for the source selection decision.



1815.204-70  Page limitations.

    (a) Technical and contracting personnel will agree on page 
limitations for their respective portions of an RFP. Unless approved in 
writing by the procurement officer, the page limitation for the 
contracting portion of an RFP (all sections except Section C, 
Description/specifications/work statement) shall not exceed 150 pages, 
and the page limitation for the technical portion (Section C) shall not 
exceed 200 pages. Attachments to the RFP count as part of the section to 
which they relate. In determining page counts, a page is defined as one 
side of a sheet, 8\1/2\x11, with at least one inch 
margins on all sides, using not smaller than 12-point type. Foldouts 
count as an equivalent number of 8\1/2\x11 pages. 
The metric standard format most closely approximating the described 
standard 8\1/2\x11 size may also be used.
    (b) Page limitations shall also be established for proposals 
submitted in competitive acquisitions. Accordingly, technical and 
contracting personnel will agree on page limitations for each portion of 
the proposal. Unless a different limitation is approved in writing by 
the procurement officer, the total initial proposal, excluding title 
pages, tables of content, and cost/price information, shall not exceed 
500 pages using the page definition of 1815.204-70(a). Firm page 
limitations shall also be established for final proposal revisions, if 
requested. The appropriate page limitations for final proposal revisions 
should be determined by considering the complexity of the acquisition 
and the extent of any discussions. The same page limitations shall apply 
to all offerors. Pages submitted in excess of specified limitations will 
not be evaluated by the Government and will be returned to the offeror.



1815.207  Handling proposals and information.



1815.207-70  Release of proposal information.

    (a) NASA personnel participating in any way in the evaluation may 
not reveal any information concerning the evaluation to anyone not also 
participating, and then only to the extent that the information is 
required in connection with the evaluation. When non-NASA personnel 
participate, they shall be instructed to observe these restrictions.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
procurement officer is the approval authority to disclose proposal 
information outside the Government. If outside evaluators are involved, 
this authorization may be granted only after compliance with FAR 37.2 
and 1837.204, except that the determination of unavailability of 
Government personnel required by FAR 37.2 is not required for disclosure 
of proposal information to JPL employees.
    (2) Proposal information in the following classes of proposals may 
be disclosed with the prior written approval of a NASA official one 
level above the NASA program official responsible for the overall 
conduct of the evaluation. If outside evaluators are involved, the 
determination of unavailability of Government personnel required by FAR 
37.2 is not required for disclosure in these instances.
    (i) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (ii) Unsolicited proposals; and
    (iii) SBIR and STTR proposals.
    (3) If JPL personnel, in evaluating proposal information released to 
them by NASA, require assistance from non-JPL, non-Government 
evaluators, JPL must obtain written approval to release the information 
in accordance

[[Page 226]]

with paragraphs (b)(1) and (b)(2) of this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.207-71  Appointing non-Government evaluators as special Government employees.

    (a) Except as provided in paragraph (c) of this section, non-
Government evaluators, except employees of JPL, shall be appointed as 
special Government employees.
    (b) Appointment as a special Government employee is a separate 
action from the approval required by paragraph 1815.207-70(b) and may be 
processed concurrently. Appointment as a special Government employee 
shall be made by:
    (1) The NASA Headquarters personnel office when the release of 
proposal information is to be made by a NASA Headquarters office; or
    (2) The installation personnel office when the release of proposal 
information is to be made by the installation.
    (c) Non-Government evaluators need not be appointed as special 
Government employees when they evaluate:
    (1) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (2) Unsolicited proposals; and
    (3) SBIR and STTR proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.208  Submission, modification, revision, and withdrawal of proposals. (NASA supplements paragraph (b))

    (b) The FAR late proposal criteria do not apply to Announcements of 
Opportunity (see 1872.705-1 paragraph VII), NASA Research Announcements 
(see 1852.235-72), and Small Business Innovative Research (SBIR) Phase I 
and Phase II solicitations, and Small Business Technology Transfer 
(STTR) solicitations. For these solicitations, proposals or proposal 
modifications received from qualified firms after the latest date 
specified for receipt may be considered if a significant reduction in 
cost to the Government is probable or if there are significant technical 
advantages, as compared with proposals previously received. In such 
cases, the project office shall investigate the circumstances 
surrounding the late submission, evaluate its content, and submit 
written recommendations and findings to the selection official or a 
designee as to whether there is an advantage to the Government in 
considering it. The selection official or a designee shall determine 
whether to consider the late submission.



1815.209  Solicitation provisions and contract clauses. (NASA supplements paragraph (a))

    (a) The contracting officer shall insert FAR 52.215-1 in all 
competitive negotiated solicitations.



1815.209-70  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.215-
77, Preproposal/Pre-bid Conference, in competitive requests for 
proposals and invitations for bids where the Government intends to 
conduct a prepoposal or pre-bid conference. Insert the appropriate 
specific information relating to the conference.
    (b) When it is not in the Government's best interest to make award 
for less than the specified quantities solicited for certain items or 
groupings of items, the contracting officer shall insert the provision 
at 1852.214-71, Grouping for Aggregate Award. See 1814.201-670(b).
    (c) When award will be made only on the full quantities solicited, 
the contracting officer shall insert the provision at 1852.214-72, Full 
Quantities. See 1814.201-670(c).
    (d) The contracting officer shall insert the provision at 1852.215-
81, Proposal Page Limitations, in all competitive requests for 
proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 67 FR 50824, Aug. 6, 2002]



                    Subpart 1815.3--Source Selection



1815.300  Scope of subpart.



1815.300-70  Applicability of subpart.

    (a)(1) Except as indicated in paragraph (b) of this section, NASA 
competitive negotiated acquisitions shall be conducted as follows:

[[Page 227]]

    (i) Acquisitions of $50 million or more--in accordance with FAR 15.3 
and this subpart.
    (ii) Other acquisitions--in accordance with FAR 15.3 and this 
subpart except section 1815.370.
    (2) Estimated dollar values of acquisitions shall include the values 
of multiple awards, options, and later phases of the same project.
    (b) FAR 15.3 and this subpart are not applicable to acquisitions 
conducted under the following procedures:
    (1) MidRange (see part 1871).
    (2) Announcements of Opportunity (see part 1872).
    (3) NASA Research Announcements (see 1835.016-71).
    (4) The Small Business Innovative Research (SBIR) program and the 
Small Business Technology Transfer (STTR) pilot program under the 
authority of the Small Business Act (15 U.S.C. 638).
    (5) Architect and Engineering (A&E) services (see FAR 36.6 and 
1836.6).

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 48561, Sept. 7, 1999]



1815.303  Responsibilities. (NASA supplements paragraphs (a) and (b))

    (a) The SSA shall be established at the lowest reasonable level for 
each acquisition. Notwithstanding the FAR designation of the contracting 
officer as SSA, the SSA for center acquisitions shall be established in 
accordance with center procedures. For acquisitions designated as 
Headquarters selections, the SSA will be identified as part of the 
Master Buy Plan process (see 1807.71).
    (b)(i) The source selection authority (SSA) is the Agency official 
responsible for proper and efficient conduct of the source selection 
process and for making the final source selection decision. The SSA has 
the following responsibilities in addition to those listed in the FAR:
    (A) Approve the evaluation factors, subfactors, the weight of the 
evaluation factors and subfactors, and any special standards of 
responsibility (see FAR 9.104-2) before release of the RFP, or delegate 
this authority to appropriate management personnel;
    (B) Appoint the source selection team. However, when the 
Administrator will serve as the SSA, the Official-in-Charge of the 
cognizant Headquarters Program Office will appoint the team; and
    (C) Provide the source selection team with appropriate guidance and 
special instructions to conduct the evaluation and selection procedures.
    (b)(2) Approval authorities for Acquisition Plans and Acquisition 
Strategy Meetings are in accordance with 1807.103.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 65 
FR 30013, May 10, 2000]



1815.304  Evaluation factors and significant subfactors. (NASA supplements paragraph (c))

    (c)(4)(A) The extent of participation of small disadvantaged 
business (SDB) concerns shall be evaluated as a subfactor under the 
Mission Suitability factor. If a Mission Suitability factor is not used, 
the SDB participation shall be evaluated as a separate factor or 
subfactor, as appropriate.
    (B) SDB concerns that choose the FAR 19.11 price evaluation 
adjustment shall receive the lowest possible score/rating under the FAR 
15.304(c)(4) evaluation.

[64 FR 25214, May 11, 1999]



1815.304-70  NASA evaluation factors.

    (a) Typically, NASA establishes three evaluation factors: Mission 
Suitability, Cost/Price, and Past Performance. Evaluation factors may be 
further defined by subfactors. Evaluation subfactors should be 
structured to identify significant discriminators, or ``key swingers''--
the essential information required to support a source selection 
decision. Too many subfactors undermine effective proposal evaluation. 
All evaluation subfactors should be clearly defined to avoid overlap and 
redundancy.
    (b) Mission Suitability factor. (1) This factor indicates the merit 
or excellence of the work to be performed or product to be delivered. It 
includes, as appropriate, both technical and management subfactors. 
Mission Suitability shall be numerically weighted and scored on a 1000-
point scale.
    (2) The Mission Suitability factor may identify evaluation 
subfactors to

[[Page 228]]

further define the content of the factor. Each Mission Suitability 
subfactor shall be weighted and scored. The adjectival rating 
percentages in 1815.305(a)(3)(A) shall be applied to the subfactor 
weight to determine the point score. The number of Mission Suitability 
subfactors is limited to five. The Mission Suitability evaluation 
subfactors and their weights shall be identified in the RFP.
    (3) For cost reimbursement acquisitions, the Mission Suitability 
evaluation shall also include the results of any cost realism analysis. 
The RFP shall notify offerors that the realism of proposed costs may 
significantly affect their Mission Suitability scores.
    (4) If the solicitation requires the submission of a Safety and 
Health Plan (see 1823.7001(c) and NPG 8715.3, NASA Safety Manual, 
Appendix H), safety and health must be a consideration in the 
evaluation. For acquisitions valued at $10 million or more, or $25 
million or more for commercial items, then the Mission Suitability 
factor, if used, shall include a subfactor for safety and health. 
Otherwise, use of that subfactor is optional.
    (c) Cost/Price factor. This factor evaluates the reasonableness and, 
if necessary, the cost realism, of proposed costs/prices. The Cost/Price 
factor is not numerically weighted or scored.
    (d) Past Performance factor. (1) This factor indicates the relevant 
quantitative and qualitative aspects of each offeror's record of 
performing services or delivering products similar in size, content, and 
complexity to the requirements of the instant acquisition.
    (2) The RFP shall instruct offerors to submit data (including data 
from relevant Federal, State, and local governments and private 
contracts) that can be used to evaluate their past performance. 
Typically, the RFP will require:
    (i) A list of contracts similar in size, content, and complexity to 
the instant acquisition, showing each contract number, the type of 
contract, a brief description of the work, and a point of contact from 
the organization placing the contract. Normally, the requested contracts 
are limited to those received in the last three years. However, in 
acquisitions that require longer periods to demonstrate performance 
quality, such as hardware development, the time period should be 
tailored accordingly.
    (ii) The identification and explanation of any cost overruns or 
underruns, completion delays, performance problems, and terminations.
    (3) The contracting officer may start collecting past performance 
data before proposal receipt. One method for early evaluation of past 
performance is to request offerors to submit their past performance 
information in advance of the proposal due date. The RFP could also 
include a past performance questionnaire for offerors to send their 
previous customers with instructions to return the completed 
questionnaire to the Government. Failure of the offeror to submit its 
past performance information early or of the customers to submit the 
completed questionnaires shall not be a cause for rejection of the 
proposal nor shall it be reflected in the Government's evaluation of the 
offeror's past performance.
    (4) The contracting officer shall evaluate the offeror's past 
performance in occupational health, security, safety, and mission 
success (e.g., mishap rates and problems in delivered hardware and 
software that resulted in mishaps or failures) when these areas are 
germane to the requirement.

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 25215, May 11, 1999; 65 
FR 30013, May 10, 2000; 65 FR 37059, June 13, 2000]



1815.305  Proposal evaluation. (NASA supplements paragraphs (a) and (b))

    (a) Each proposal shall be evaluated to identify and document:
    (i) Any deficiencies;
    (ii) All strengths and significant weaknesses;
    (iii) The numerical score and/or adjectival rating of each Mission 
Suitability subfactors and for the Mission Suitability factor in total;
    (iv) Cost realism, if appropriate;
    (v) The Past Performance evaluation factor; and
    (vi) Any programmatic risk to mission success, e.g., technical, 
schedule, cost, safety, occupational health, security, export control, 
or environmental. Risks may result from the offeror's technical 
approach, manufacturing

[[Page 229]]

plan, selection of materials, processes, equipment, or as a result of 
the cost, schedule, and performance impacts associated with its 
approach. Risk evaluations must consider the probability of the risk 
occurring, the impact and severity of the risk, the timeframe when the 
risk should be addressed, and the alternatives available to meet the 
requirements. Risk assessments shall be considered in determining 
Mission Suitability strengths, weaknesses, deficiencies, and numerical 
or adjectival ratings. Identified risks and the potential for cost 
impact shall be considered in the cost or price evaluation.
    (a)(1) Cost or price evaluation.
    (A) Cost or pricing data shall not be requested in competitive 
acquisitions. See 1815.403-1(b)(1) and 1815.403-3(b).
    (B) When contracting on a basis other than firm-fixed-price, the 
contracting officer shall perform price and cost realism analyses to 
assess the reasonableness and realism of the proposed costs. A cost 
realism analysis will determine if the costs in an offeror's proposal 
are realistic for the work to be performed, reflect a clear 
understanding of the requirements, and are consistent with the various 
elements of the offeror's technical proposal. The analysis should 
include:
    (a) The probable cost to the Government of each proposal, including 
any recommended additions or reductions in materials, equipment, labor 
hours, direct rates, and indirect rates. The probable cost should 
reflect the best estimate of the cost of any contract which might result 
from that offeror's proposal.
    (b) The differences in business methods, operating procedures, and 
practices as they affect cost.
    (c) A level of confidence in the probable cost assessment for each 
proposal.
    (C) The cost realism analysis may result in adjustments to Mission 
Suitability scores in accordance with the procedure described in 
1815.305(a)(3)(B).
    (a)(2) Past performance evaluation.
    (A) The Past Performance evaluation assesses the contractor's 
performance under previously awarded contracts.
    (B) The evaluation may be limited to specific areas of past 
performance considered most germane for the instant acquisition. It may 
include any or all of the items listed in FAR 42.1501, and/or any other 
aspects of past performance considered pertinent to the solicitation 
requirements or challenges. Regardless of the areas of past performance 
selected for evaluation, the same areas shall be evaluated for all 
offerors in that acquisition.
    (C) Questionnaires and interviews may be used to solicit assessments 
of the offerors's performance, as either a prime or subcontractor, from 
the offeror's previous customers.
    (D) All pertinent information, including customer assessments and 
any offeror rebuttals, will be made part of the source selection records 
and included in the evaluation.
    (a)(3) Technical Evaluation.
    (A) Mission Suitability subfactors and the total Mission Suitability 
factor shall be evaluated using the following adjectival ratings, 
definitions, and percentile ranges.

----------------------------------------------------------------------------------------------------------------
                                                                                                     Percentile
              Adjectival rating                                    Definitions                          range
----------------------------------------------------------------------------------------------------------------
Excellent....................................  A comprehensive and thorough proposal of                   91-100
                                                exceptional merit with one or more significant
                                                strengths. No deficiency or significant weakness
                                                exists.
Very Good....................................  A proposal having no deficiency and which                  71-90
                                                demonstrates over-all competence. One or more
                                                significant strengths have been found, and
                                                strengths outbalance any weaknesses that exist.
Good.........................................  A proposal having no deficiency and which shows a          51-70
                                                reasonably sound response. There may be strengths
                                                or weaknesses, or both. As a whole, weaknesses not
                                                off-set by strengths do not significantly detract
                                                from the offeror's response.
Fair.........................................  A proposal having no deficiency and which has one          31-50
                                                or more weaknesses. Weaknesses outbalance any
                                                strengths.
Poor.........................................  A proposal that has one or more deficiencies or             0-30
                                                significant weaknesses that demonstrate a lack of
                                                overall competence or would require a major
                                                proposal revision to correct.
----------------------------------------------------------------------------------------------------------------


[[Page 230]]

    (B) When contracting on a cost reimbursement basis, the Mission 
Suitability evaluation shall reflect the results of any required cost 
realism analysis performed under the cost/price factor. A structured 
approach shall be used to adjust Mission Suitability scores based on the 
degree of assessed cost realism. An example of such an approach would:
    (a) Establish a threshold at which Mission Suitability adjustments 
would start. The threshold should reflect the acquisition's estimating 
uncertainty (i.e., the higher the degree of estimating uncertainty, the 
higher the threshold);
    (b) Use a graduated scale that proportionally adjusts a proposal's 
Mission Suitability score for its assessed cost realism;
    (c) Affect a significant number of points to induce realistic 
pricing;
    (d) Calculate a Mission Suitability point adjustment based on the 
percentage difference between proposed and probable cost as follows:

------------------------------------------------------------------------
                                                                Point
             Services                Hardware development     adjustment
------------------------------------------------------------------------
[plusmn]5 percent................  [plusmn]30 percent......            0
[plusmn]6 to 10 percent..........  [plusmn]31 to 40 percent          -50
[plusmn]11 to 15 percent.........  [plusmn]41 to 50 percent         -100
[plusmn]16 to 20 percent.........  [plusmn]51 to 60 percent         -150
[plusmn]21 to 30 percent.........  [plusmn]61 to 70 percent         -200
[plusmn]more than 30 percent.....  [plusmn]more than 70             -300
                                    percent.
------------------------------------------------------------------------

    (a)(4) The cost or price evaluation, specifically the cost realism 
analysis, often requires a technical evaluation of proposed costs. 
Contracting officers may provide technical evaluators a copy of the cost 
volume or relevant information from it to use in the analysis.
    (b) The contracting officer is authorized to make the determination 
to reject all proposals received in response to a solicitation.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 65 
FR 37059, June 13, 2000]



1815.305-70  Identification of unacceptable proposals.

    (a) The contracting officer shall not complete the initial 
evaluation of any proposal when it is determined that the proposal is 
unacceptable because:
    (1) It does not represent a reasonable initial effort to address the 
essential requirements of the RFP or clearly demonstrates that the 
offeror does not understand the requirements;
    (2) In research and development acquisitions, a substantial design 
drawback is evident in the proposal, and sufficient correction or 
improvement to consider the proposal acceptable would require virtually 
an entirely new technical proposal; or
    (3) It contains major eficiencies or omissions or out-of-line costs 
which discussions with the offeror could not reasonably be expected to 
cure.
    (b) The contracting officer shall document the rationale for 
discontinuing the initial evaluation of a proposal in accordance with 
this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.305-71  Evaluation of a single proposal.

    (a) If only one proposal is received in response to the 
solicitation, the contracting officer shall determine if the 
solicitation was flawed or unduly restrictive and determine if the 
single proposal is an acceptable proposal. Based on these findings, the 
SSA shall direct the contracting officer to:
    (1) Award without discussions provided for contracting officer 
determines that adequate price competition exists (see FAR 15.403-
1(c)(1)(ii));
    (2) Award after negotiating an acceptable contract. (The requirement 
for submission of cost or pricing data shall be determined in accordance 
with FAR 15.403-1); or
    (3) Reject the proposal and cancel the solicitation.
    (b) The procedure in 1815.305-71(a) also applies when the number of 
proposals equals the number of awards

[[Page 231]]

contemplated or when only one acceptable proposal is received.



1815.306  Exchanges with offerors after receipt of proposals. (NASA supplements paragraphs (c), (d), and (e))

    (c)(2) A total of no more than three proposals shall be a working 
goal in establishing the competitive range. Field installations may 
establish procedures for approval of competitive range determinations 
commensurate with the complexity or dollar value of an acquisition.
    (d)(3)(A) The contracting officer shall identify any cost/price 
elements that do not appear to be justified and encourage offerors to 
submit their most favorable and realistic cost/price proposals, but 
shall not discuss, disclose, or compare cost/price elements of any other 
offeror. The contracting officer shall question inadequate, conflicting, 
unrealistic, or unsupported cost information; differences between the 
offeror's proposal and most probable cost assessments; cost realism 
concerns; differences between audit findings and proposed costs; 
proposed rates that are too high/low; and labor mixes that do not appear 
responsive to the requirements. No agreement on cost/price elements or a 
``bottom line'' is necessary.
    (B) The contracting officer shall discuss contract terms and 
conditions so that a ``model'' contract can be sent to each offeror with 
the request for final proposal revisions. If the solicitation allows, 
any proposed technical performance capabilities above those specified in 
the RFP that have value to the Government and are considered proposal 
strengths should be discussed with the offeror and proposed for 
inclusion in that offeror's ``model'' contract. If the offeror declines 
to include these strengths in its ``model'' contract, the Government 
evaluators should reconsider their characterization as strengths.
    (e)(1) In no case shall the contacting officer relax or amend RFP 
requirements for any offeror without amending the RFP and permitting the 
other offerors an opportunity to propose against the relaxed 
requirements. 

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.307  Proposal revisions. (NASA supplements paragraph (b))

    (b)(i) The request for final proposal revisions (FPRs) shall also:
    (A) Instruct offerors to incorporate all changes to their offers 
resulting from discussions, and require clear traceability from initial 
proposals;
    (B) Require offerors to complete and execute the ``model'' contract, 
which includes any special provisions or performance capabilities the 
offeror proposed above those specified in the RFP;
    (C) Caution offerors against unsubstantiated changes to their 
proposals; and
    (D) Establish a page limit for FPRs.
    (ii) Approval of the Assistant Administrator for Procurement (Code 
HS) is required to reopen discussions for acquisitions of $50 million or 
more. Approval of the procurement officer is required for all other 
acquisitions.
    (iii) Proposals are rescored based on FPR evaluations. Scoring 
changes between initial and FPRs shall be clearly traceable.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998]



1815.308  Source selection decision. (NASA paragraphs (1), (2) and (3))

    (1) All significant evaluation findings shall be fully documented 
and considered in the source selection decision. A clear and logical 
audit trail shall be maintained for the rationale for ratings and 
scores, including a detailed account of the decisions leading to the 
selection. Selection is made on the basis of the evaluation criteria 
established in the RFP.
    (2) Before aware, the SSA shall sign a source selection statement 
that clearly and succinctly justifies the selection. Source selection 
statements must describe: the acquisition; the evaluation procedures; 
the substance of the Mission Suitability evaluation; and the evaluation 
of the Cost/Price and Past Performance factors. The statement also 
addresses unacceptable proposals, the competitive range determination, 
late proposals, or any other considerations pertinent to the decision. 
The statement shall not reveal any confidential business information. 
Except for certain major system acquisition competitions (see 1815.506-
70), source

[[Page 232]]

selection statements shall be releasable to competing offerors and the 
general public upon request. The statement shall be available to the 
Debriefing Official to use in postaward debriefings of unsuccessful 
offerors and shall be provided to debriefed offerors upon request.
    (3) Once the selection decision is made, the contracting officer 
shall award the contract.



1815.370  NASA source evaluation boards.

    (a) The source evaluation board (SEB) procedures shall be used for 
those acquisitions identified in 1815.300-700(a)(1)(i).
    (b) The SEB assists the SSA by providing expert analyses of the 
offerors' proposals in relation to the evaluation factors and subfactors 
contained in the solicitation. The SEB will prepare and present its 
findings to the SSA, avoiding trade-off judgments among either the 
individual offerors or among the evaluation factors. The SEB will not 
make recommendations for selection to the SSA.
    (c) Designation. (1) The SEB shall be comprised of competent 
individuals fully qualified to identify the strengths, weaknesses, and 
risks associated with proposals submitted in response to the 
solicitation. The SEB shall be appointed as early as possible in the 
acquisition process, but not later than acquisition plan or acquisition 
strategy meeting approval.
    (2) While SEB participants are normally drawn from the cognizant 
installation, personnel from other NASA installations or other 
Government agencies may participate. When it is necessary to disclose 
the proposal (in whole or in part) outside the Government, approval 
shall be obtained in accordance with 1815.207-70.
    (3) When Headquarters retains SSA authority, the Headquarters Office 
of Procurement (Code HS) must concur on the SEB appointments. 
Qualifications of voting members, including functional title, grade 
level, and related SEB experience, shall be provided.
    (d) Organization. (1) The organization of an SEB is tailored to the 
requirements of the particular acquisition. This can range from the 
simplest situation, where the SEB conducts the evaluation and 
factfinding without the use of committees or panels/consultants (as 
described in paragraphs (d)(4) and (5) of this section) to a highly 
complex situation involving a major acquisition where two or more 
committees are formed and these, in turn, are assisted by special panels 
or consultants in particular areas. The number of committees or panels/
consultants shall be kept to a minimum.
    (2) The SEB Chairperson is the principal operating executive of the 
SEB. The Chairperson is expected to manage the team efficiently without 
compromising the validity of the findings provided to the SSA as the 
basis for a sound selection decision.
    (3) The SEB Recorder functions as the principal administrative 
assistant to the SEB Chairperson and is principally responsible for 
logistical support and recordkeeping of SEB activities.
    (4) An SEB committee functions as a factfinding arm of the SEB, 
usually in a broad grouping of related disciplines (e.g., technical or 
management). The committee evaluates in detail each proposal, or portion 
thereof, assigned by the SEB in accordance with the approved evaluation 
factors and subfactors and summarizes its evaluation in a written report 
to the SEB. The committee will also respond to requirements assigned by 
the SEB, including further justification or reconsideration of its 
findings. Committee chairpersons shall manage the administrative and 
procedural matters of their committees.
    (5) An SEB panel or consultant functions as a factfinding arm of the 
committee in a specialized area of the committee's responsibilities. 
Panels are established or consultants named when a particular area 
requires deeper analysis than the committee can provide.
    (6) The total of all such evaluators (committees, panels, 
consultants, etc. excluding SEB voting members and ex officio members) 
shall be limited to a maximum of 20, unless approved in writing by the 
procurement officer.
    (e) Voting members. (1) Voting members of the SEB shall include 
people who will have key assignments on the

[[Page 233]]

project to which the acquisition is directed. However, it is important 
that this should be tempered to ensure objectivity and to avoid an 
improper balance. It may even be appropriate to designate a management 
official from outside the project as SEB Chairperson.
    (2) Non-government personnel shall not serve as voting members of an 
SEB.
    (3) The SEB shall review the findings of committees, panels, or 
consultants and use its own collective judgment to develop the SEB 
evaluation findings reported to the SSA. All voting members of the SEB 
shall have equal status as rating officials.
    (4) SEB membership shall be limited to a maximum of 7 voting 
individuals. Wherever feasible, an assignment to SEB membership as a 
voting member shall be on a full-time basis. When not feasible, SEB 
membership shall take precedence over other duties.
    (5) The following people shall be voting members of all SEBs:
    (i) Chairperson.
    (ii) A senior, key technical representative for the project.
    (iii) An experienced procurement representative.
    (iv) A senior Safety & Mission Assurance (S&MA) representative, as 
appropriate.
    (v) Committee chairpersons (except where this imposes an undue 
workload).
    (f) Ex officio members. (1) The number of nonvoting ex officio 
(advisory) members shall be kept as small as possible. Ex officio 
members should be selected for the experience and expertise they can 
provide to the SEB. Since their advisory role may require access to 
highly sensitive SEB material and findings, ex officio membership for 
persons other than those identified in paragraph (f)(3) of this section 
is discouraged.
    (2) Nonvoting ex officio members may state their views and 
contribute to the discussions in SEB deliberations, but they may not 
participate in the actual rating process. However, the SEB recorder 
should be present during rating sessions.
    (3) For field installation selections, the following shall be 
nonvoting ex officio members on all SEBs:
    (i) Chairpersons of SEB committees, unless designated as voting 
members.
    (ii) The procurement officer of the installation, unless designated 
a voting member.
    (iii) The contracting officer responsible for the acquisition, 
unless designated a voting member.
    (iv) The Chief Counsel and/or designee of the installation.
    (v) The installation small business specialist.
    (vi) The SEB recorder.
    (g) Evaluation. (1) If committees are used, the SEB Chairperson 
shall send them the proposals or portions thereof to be evaluated, along 
with instructions regarding the expected function of each committee, and 
all data considered necessary or helpful.
    (2) While oral reports may be given to the SEB, each committee shall 
submit a written report which should include the following:
    (i) Copies of individual worksheets and supporting comments to the 
lowest level evaluated;
    (ii) An evaluation sheet summarized for the committee as a whole; 
and
    (iii) A statement for each proposal describing any strengths, 
deficiencies, or significant weaknesses which significantly affected the 
evaluation and stating any reservations or concerns, together with 
supporting rationale, which the committee or any of its members want to 
bring to the attention of the SEB.
    (3) The SEB process must be adequately documented. Clear 
traceability must exist at all levels of the SEB process. All reports 
submitted by committees or panels will be retained as part of the SEB 
records.
    (4) Each voting SEB member shall thoroughly review each proposal and 
any committee reports and findings. The SEB shall rate or score the 
proposals for each evaluation factor and subfactor according to its own 
collective judgment. SEB minutes shall reflect this evaluation process.
    (h) SEB presentation. (1) The SEB Chairperson shall brief the SSA on 
the results of the SEB deliberations to permit an informed and objective 
selection of the best source(s) for the particular acquisition.

[[Page 234]]

    (2) The presentation shall focus on the significant strengths, 
deficiencies, and significant weaknesses found in the proposals, the 
probable cost of each proposal, and any significant issues and problems 
identified by the SEB. This presentation must explain any applicable 
special standards of responsibility; evaluation factors and subfactors; 
the significant strengths and significant weaknesses of the offerors; 
the Government cost estimate, if applicable; the offerors' proposed 
cost/price; the probable cost; the proposed fee arrangements; and the 
final adjectival ratings and scores to the subfactor level.
    (3) Attendance at the presentation is restricted to people involved 
in the selection process or who have a valid need to know. The 
designated individuals attending the SEB presentation(s) shall:
    (i) Ensure that the solicitation and evaluation processes complied 
with all applicable agency policies and that the presentation accurately 
conveys the SEB's activities and findings;
    (ii) Not change the established evaluation factors, subfactors, 
weights, or scoring systems; or the substance of the SEB's findings. 
They may, however, advise the SEB to rectify procedural omissions, 
irregularities or inconsistencies, substantiate its findings, or revise 
the presentation.
    (4) The SEB recorder will coordinate the formal presentation 
including arranging the time and place of the presentation, assuring 
proper attendance, and distributing presentation material.
    (5) For Headquarters selections, the Headquarters Office of 
Procurement (Code HS) will coordinate the presentation, including 
approval of attendees. When the Administrator is the SSA, a preliminary 
presentation should be made to the head of contracting activity and to 
the Official-in-Charge of the cognizant Headquarters Program Office.
    (i) Recommended SEB presentation format. (1) Identification of the 
acquisition. Identifies the installation, the nature of the services or 
hardware to be acquired, some quantitative measure including the 
Government cost estimate for the acquisition, and the planned 
contractual arrangement. Avoids detailed objectives of the acquisition.
    (2) Background. Identifies any earlier phases of a phased 
acquisition or, as in the case of continuing support services, 
identifies the incumbent and any consolidations or proposed changes from 
the existing structure.
    (3) Evaluation factors, and subfactors. Explains the evaluation 
factors, subfactors, and any special standards of responsibility. Lists 
the relative order of importance of the evaluation factors and the 
numerical weights of the Mission Suitability subfactors. Presents the 
adjectival scoring system used in the Mission Suitability and Past 
Performance evaluations.
    (4) Sources. Indicates the number of offerors solicited and the 
number of offerors expressing interest (e.g., attendance at a 
preproposal conference). Identifies the offerors submitting proposals, 
indicating any small businesses, small disadvantaged businesses, and 
women-owned businesses.
    (5) Summary of findings. Lists the initial and final Mission 
Suitability ratings and scores, the offerors' proposed cost/prices, and 
any assessment of the probable costs. Introduces any clear 
discriminator, problem, or issue which could affect the selection. 
Addresses any competitive range determination.
    (6) Significant strengths, deficiencies, and significant weaknesses 
of offerors. Summarizes the SEB's findings, using the following 
guidelines:
    (i) Present only the significant strengths, deficiencies, and 
significant weaknesses of individual offerors.
    (ii) Directly relate the significant strengths, deficiencies, and 
significant weaknesses to the evaluation factors and subfactors.
    (iii) Indicate the results and impact, if any, of discussions and 
FPRs on ratings and scores.
    (7) Final Mission Suitability Ratings and Scores. Summarizes the 
evaluation subfactors, the maximum points achievable, and the scores of 
the offerors in the competitive range.
    (8) Final cost/price evaluation. Summarizes proposed cost/prices and 
any probable costs associated with each offeror including proposed fee 
arrangements. Presents the data as accurately as possible, showing SEB 
adjustments to

[[Page 235]]

achieve comparability. Identifies the SEB's confidence in the probable 
costs of the individual offerors, noting the reasons for low or high 
confidence.
    (9) Past performance. Reflects the summary conclusions, supported by 
specific case data.
    (10) Special interest. Includes only information of special interest 
to the SSA that has not been discussed elsewhere, e.g., procedural 
errors or other matters that could affect the selection decision.
    (j) A source selection statement shall be prepared in accordance 
with 1815.308. For installation selections, the installation Chief 
Counsel or designee will prepare the source selection statement. For 
Headquarters selections, the Office of General Counsel or designee will 
prepare the statement.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998; 65 
FR 30013, May 10, 2000; 65 FR 38777, June 22, 2000; 68 FR 23424, May 2, 
2003]



                    Subpart 1815.4--Contract Pricing



1815.403  Obtaining cost or pricing data.



1815.403-1  Prohibition on obtaining cost or pricing data. (NASA supplements paragraphs (b) and (c))

    (b)(1) The adequate price competition exception is applicable to 
both fixed-price and cost-reimbursement type acquisitions. Contracting 
officers shall assume that all competitive acquisitions qualify for this 
exception.
    (c)(4) Waivers of the requirement for submission of cost or pricing 
data shall be prepared in accordance with FAR 1.704. A copy of each 
waiver shall be sent to the Headquarters Office of Procurement (Code 
HK).



1815.403-170  Waivers of cost or pricing data.

    (a) NASA has waived the requirement for the submission of cost or 
pricing data when contracting with the Canadian Commercial Corporation 
(CCC). This waiver applies to the CCC and its subcontractors. The CCC 
will provide assurance of the fairness and reasonableness of the 
proposed price. This assurance should be relied on; however, contracting 
officers shall ensure that the appropriate level of information other 
than cost or pricing data is submitted by subcontractors to support any 
required proposal analysis, including a technical analysis and a cost 
realism analysis. The CCC also will provide for follow-up audit activity 
to ensure that any excess profits are found and refunded to NASA.
    (b) NASA has waived the requirement for the submission of cost or 
pricing data when contracting for Small Business Innovation Research 
(SBIR) program Phase II contracts. However, contracting officers shall 
ensure that the appropriate level of information other than cost or 
pricing data is submitted to determine price reasonableness and cost 
realism.

[64 FR 10573, Mar. 5, 1999]



1815.403-3   Requiring information other than cost or pricing data.

    (b) As indicated in 1815.403-1(b)(1), the adequate price competition 
exception applies to all competitive acquisitions. For other than firm-
fixed price competitions, only the minimum information other than cost 
or pricing data necessary to ensure price reasonableness and assess cost 
realism should be requested. For firm-fixed price competitions, the 
contracting officer shall not request any cost information, except as 
required by FAR 22.1103, unless proposed prices appear unreasonable or 
unrealistically low given the offeror's proposed approach and there are 
concerns that the contractor may default.

[64 FR 69416, Dec. 13, 1999]



1815.403-4  Requiring cost or pricing data. (NASA supplements paragraph (b))

    (b)(2) If a certificate of current cost or pricing data is made 
applicable as of a date other than the date of price agreement, the 
agreed date should generally be within two weeks of the date of that 
agreement.



1815.404  Proposal analysis.



1815.404-2  Information to support proposal analysis. (NASA supplements paragraph (a))

    (a)(1)(A) A field pricing report consists of a technical report and 
an audit report by the cognizant contract audit

[[Page 236]]

activity. Contracting officers should request a technical report from 
the ACO only if NASA resources are not available.
    (B) When the required participation of the ACO or auditor involves 
merely a verification of information, contracting officers should obtain 
this verification from the cognizant office by telephone rather than 
formal request of field pricing support.
    (C) When the cost proposal is for a product of a follow-on nature, 
contracting officers shall ensure that the following items, at a minimum 
are considered: actuals incurred under the previous contract, learning 
experience, technical and production analysis, and subcontract proposal 
analysis. This information may be obtained through NASA resources or the 
cognizant DCMA ACO or DCAA.
    (D) Requests for field pricing assistance may be made on NASA Form 
1434, Letter of Request for Pricing-Audit-Technical Evaluation Services.

[63 FR 4954, Feb. 27, 1998, as amended at 67 FR 53597, Oct. 23, 2002]



1815.404-4   Profit. (NASA supplements paragraphs (b) and (c))

    (b)(1)(i)(a) The NASA structured approach for determining profit or 
fee objectives, described in 1815.404-471 shall be used to determine 
profit or fee objectives in the negotiation of contracts greater than or 
equal to $100,000 that use cost analysis and are:
    (1) Awarded on the basis of other than full and open competition 
(see FAR 6.3);
    (2) Awarded under NASA Research Announcements (NRAs) and 
Announcements of Opportunity (AO's); or
    (3) Awarded under the Small Business Innovative Research (SBIR) or 
the Small Business Technology Transfer Research (STTR) programs.
    (b) The rate calculated for the basic contract may only be used on 
actions under a negotiated contract when the conditions affecting profit 
or fee do not change.
    (c) Although specific agreement on the applied weights or values for 
individual profit or fee factors shall not be attempted, the contracting 
officer may encourage the contractor to--
    (1) Present the details of its proposed profit amounts in the 
structured approach format or similar structured approach; and
    (2) Use the structured approach method in developing profit or fee 
objectives for negotiated subcontracts.
    (ii) The use of the NASA structured approach for profit or fee is 
not required for:
    (a) Architect-engineer contracts;
    (b) Management contracts for operation and/or maintenance of 
Government facilities;
    (c) Construction contracts;
    (d) Contracts primarily requiring delivery of materials supplied by 
subcontractors;
    (e) Termination settlements; and
    (f) Contracts having unusual pricing situations when the procurement 
officer determines in writing that the structured approach is 
unsuitable.
    (c)(2) Contracting officers shall document the profit or fee 
analysis in the contract file.

[64 FR 51472, Sept. 23, 1999]



1815.404-470   NASA Form 634.

    NASA Form (NF) 634 shall be used in performing the analysis 
necessary to develop profit or fee objectives.

[64 FR 51473, Sept. 23, 1999]



1815.404-471   NASA structured approach for profit or fee objective.



1815.404-471-1   General.

    (a) The structured approach for determining profit or fee objectives 
(NF 634) focuses on three profit factors:
    (1) Performance risk;
    (2) Contract type risk including working capital adjustment; and
    (3) Other Considerations which may be considered by the contracting 
officer to account for special circumstances that are not adequately 
addressed in the performance risk and contract type risk factors.
    (b) The contracting officer assigns values to each profit or fee 
factor; the value multiplied by the base results in the profit/fee 
objective for that factor. Each factor has a normal value and a 
designated range of values. The normal value is representative of 
average conditions on the prospective contract

[[Page 237]]

when compared to all goods and services acquired by NASA. The designated 
range provides values based on above normal or below normal conditions. 
Values outside the designated range must not be used. In the negotiation 
documentation, the contracting officer need not explain assignment of 
the normal value, but must address conditions that justify assignment of 
other than the normal value.

[64 FR 51473, Sept. 23, 1999, as amended at 65 FR 12485, Mar. 9, 2000]



1815.404-471-2   Performance risk.

    (a) Risk factors. Performance risk addresses the contractor's degree 
of risk in fulfilling the contract requirements. It consists of three 
risk factors:
    (1) Technical--the technical uncertainties of performance;
    (2) Management--the degree of management effort necessary to ensure 
that contract requirements are met; and
    (3) Cost control--the contractor's efforts to reduce and control 
costs.
    (b) Risk factor weighting, values and calculations. A weighting and 
value is assigned to each of the risk factors to determine a profit/fee 
objective.
    (c) Values. The normal value is 6 percent and the designated range 
is 4 percent to 8 percent.
    (d) Evaluation criteria for technical risk factor. (1) In 
determining the appropriate value for the technical risk factor, the 
contracting officer shall review the contract requirements and focus on 
the critical performance elements in the statement of work or 
specifications. Contracting officers shall consider the--
    (i) Technology being applied or developed by the contractor;
    (ii) Technical complexity;
    (iii) Program maturity;
    (iv) Performance specifications and tolerances;
    (v) Delivery schedule; and
    (vi) Extent of a warranty or guarantee.
    (2) Above normal conditions indicating substantial technical risk. 
(i) The contracting officer may assign a higher than normal value in 
those cases where there is a substantial technical risk, such as when--
    (A) The contractor is either developing or applying advanced 
technologies;
    (B) Items are being manufactured using specifications with stringent 
tolerance limits;
    (C) The efforts require highly skilled personnel or require the use 
of state-of-the-art machinery;
    (D) The services or analytical efforts are extremely important to 
the government and must be performed to exacting standards;
    (E) The contractor's independent development and investment has 
reduced the Government's risk or cost;
    (F) The contractor has accepted an accelerated delivery schedule to 
meet the Government's requirements; or
    (G) The contractor has assumed additional risk through warranty 
provisions.
    (ii) The contracting officer may assign a value significantly above 
normal. A maximum value may be assigned when the effort involves--
    (A) Extremely complex, vital efforts to overcome difficult technical 
obstacles that require personnel with exceptional abilities, experience, 
and professional credentials;
    (B) Development or initial production of a new item, particularly if 
performance or quality specifications are tight; or
    (C) A high degree of development or production concurrency.
    (3) Below normal conditions indicating lower than normal technical 
risk. (i) The contracting officer may assign a lower than normal value 
in those cases where the technical risk is low, such as when the--
    (A) Acquisition is for off-the-shelf items;
    (B) Requirements are relatively simple;
    (C) Technology is not complex;
    (D) Efforts do not require highly skilled personnel;
    (E) Efforts are routine; or
    (F) Acquisition is a follow-on effort or a repetitive type 
acquisition.
    (ii) The contracting officer may assign a value significantly below 
normal. A minimum value may be justified when the effort involves--
    (A) Routine services;
    (B) Production of simple items;

[[Page 238]]

    (C) Rote entry or routine integration of Government-furnished 
information; or
    (D) Simple operations with Government-furnished property.
    (e) Evaluation criteria for management risk factor. (1) In 
determining the appropriate value for the management risk factor, the 
contracting officer shall review the contract requirements and focus on 
the critical performance elements in the statement of work or 
specifications. Contracting officers shall--
    (i) Assess the contractor's management and internal control systems 
using contracting office information and reviews made by contract 
administration offices;
    (ii) Assess the management involvement expected on the prospective 
contract action; and
    (iii) Consider the degree of cost mix as an indication of the types 
of resources applied and value added by the contractor.
    (2) Above normal conditions indicating substantial management risk. 
(i) The contracting officer may assign a higher than normal value when 
the management effort is intense, such as when--
    (A) The contractor's value added is both considerable and reasonably 
difficult; or
    (B) The effort involves a high degree of integration and 
coordination.
    (ii) The contracting officer may justify a maximum value when the 
effort--
    (A) Requires large-scale integration of the most complex nature;
    (B) Involves major international activities with significant 
management coordination; or
    (C) Has critically important milestones.
    (3) Below normal conditions indicating lower than normal management 
risk. (i) The contracting officer may assign a lower than normal value 
when the management effort is minimal, such as when--
    (A) The program is mature and many end item deliveries have been 
made;
    (B) The contractor adds minimum value to an item;
    (C) The efforts are routine and require minimal supervision;
    (D) The contractor fails to provide an adequate analysis of 
subcontractor costs; or
    (E) The contractor does not cooperate in the evaluation and 
negotiation of the proposal.
    (ii) The contracting officer may assign a value significantly below 
normal. A minimum value may be assigned when--
    (A) Reviews performed by the field administration offices disclose 
unsatisfactory management and internal control systems (e.g., quality 
assurance, property control, safety, security); or
    (B) The effort requires an unusually low degree of management 
involvement.
    (f) Evaluation criteria for cost control risk factor. (1) In 
determining the appropriate value for the cost control risk factor, the 
contracting officer shall--
    (i) Evaluate the expected reliability of the contractor's cost 
estimates (including the contractor's cost estimating system);
    (ii) Evaluate the contractor's cost reduction initiatives (e.g., 
competition advocacy programs);
    (iii) Assess the adequacy of the contractor's management approach to 
controlling cost and schedule; and
    (iv) Evaluate any other factors that affect the contractor's ability 
to meet the cost targets (e.g., foreign currency exchange rates and 
inflation rates).
    (2) Above normal conditions indicating substantial cost control 
risk. (i) The contracting officer may assign a value higher than normal 
value if the contractor can demonstrate a highly effective cost control 
program, such as when--
    (A) The contractor has an aggressive cost reduction program that has 
demonstrable benefits;
    (B) The contractor uses a high degree of subcontract competition; or
    (C) The contractor has a proven record of cost tracking and control.
    (3) Below normal conditions indicating lower than normal cost 
control risk. (i) The contracting officer may assign a lower than normal 
value in those cases where the contractor demonstrates minimal concern 
for cost control, such as when--

[[Page 239]]

    (A) The contractor's cost estimating system is marginal;
    (B) The contractor has made minimal effort to initiate cost 
reduction programs;
    (C) The contractor's cost proposal is inadequate; or
    (D) The contractor has a record of cost overruns or the indication 
of unreliable cost estimates and lack of cost control.

[64 FR 51473, Sept. 23, 1999]



1815.404-471-3  Contract type risk and working capital adjustment.

    (a) Risk factors. The contract type risk factor focuses on the 
degree of cost risk accepted by the contractor under varying contract 
types. The working capital adjustment is an adjustment added to the 
profit objective for contract type risk. It applies to fixed-price type 
contracts that provide for progress payments. Though it uses a formula 
approach, it is not intended to be an exact calculation of the cost of 
working capital. Its purpose is to give general recognition to the 
contractor's cost of working capital under varying contract 
circumstances, financing policies, and the economic environment. This 
adjustment is limited to a maximum of 2 percent.
    (b) Risk factor values and calculations. A risk value is assigned to 
calculate the profit or fee objective for contract type. A contract 
length factor is assigned and applied to costs financed when a working 
capital adjustment is appropriate. This calculation is only performed 
when the prospective contract is a fixed-price contract containing 
provisions for progress payments.
    (c) Values: Normal and designated ranges.

------------------------------------------------------------------------
                                                            Designated
         Contract Type             Note    Normal value       range
                                             (Percent)      (Percent)
------------------------------------------------------------------------
Firm-fixed-price, no financing        (1)          5     4 to 6
Firm-fixed-price with                 (6)          4     2.5 to 5.5
 performance-based payments.
Firm-fixed-price with progress        (2)          3     2 to 4
 payments.
Fixed-price-incentive, no             (1)          3     2 to 4
 financing.
Fixed-price-incentive, with           (6)          2     .5 to 3.5
 performance-based payments.
Fixed-price, redeterminable...        (3)
Fixed-price-incentive, with           (2)          1     0 to 2
 progress payments.
Cost-plus-incentive-fee.......        (4)          1     0 to 2
Cost-plus-award fee...........        (4)           .75  .5 to 1.5
Cost-plus-fixed fee...........        (4)           .5   0 to 1
Time-and-materials............        (5)           .5   0 to 1
Labor-hour....................        (5)           .5   0 to 1
Firm-fixed-price, level-of-           (5)           .5   0 to 1
 effort, term.
------------------------------------------------------------------------

    (1) No financing, means that the contract either does not provide 
progress or performance based payments, or provides them only on a 
limited basis. Do not compute a working capital adjustment.
    (2) When progress payments are present, compute a working capital 
adjustment.
    (3) For purposes of assigning profit values, treat a fixed-price 
redeterminable contract as if it were a fixed-price-incentive contract 
with below normal provisions.
    (4) Cost-plus contracts shall not receive the working capital 
adjustment.
    (5) These types of contracts are considered cost-plus-fixed-fee 
contracts for the purposes of assigning profit values. Do not compute 
the working capital adjustment. However, higher than normal values may 
be assigned within the designated range to the extent that portions of 
cost are fixed.
    (6) When performance-based payments are used, do not compute a 
working capital adjustment.
    (d) Evaluation criteria. (1) General. The contracting officer shall 
consider elements that affect contract type risk such as--
    (i) Length of contract;
    (ii) Adequacy of cost projection data;
    (iii) Economic environment;
    (iv) Nature and extent of subcontracted activity;

[[Page 240]]

    (v) Protection provided to the contractor under contract provisions 
(e.g., economic price adjustment clauses);
    (vi) The ceilings and share lines contained in the incentive 
provisions; and
    (vii) The rate, frequency, and risk to the contractor of 
performance-based payments, if provided.
    (2) Mandatory. The contracting officer shall assess the extent to 
which costs have been incurred prior to definitization of the contract. 
When costs have been incurred prior to definitization, generally regard 
the contract type risk to be in the low end of the designated range. If 
a substantial portion of the costs have been incurred prior to 
definitization, the contracting officer may assign a value as low as 0 
percent regardless of contract type.
    (3) Above normal conditions. The contracting officer may assign a 
higher than normal value when there is substantial contract type risk. 
Conditions indicating higher than normal contract type risk are--
    (i) Efforts where there is minimal cost history;
    (ii) Long-term contracts without provisions protecting the 
contractor, particularly when there is considerable economic 
uncertainty;
    (iii) Incentive provisions that place a high degree of risk on the 
contractor;
    (iv) Performance-based payments totaling less than the maximum 
allowable amount(s) specified at FAR 32.1004(b)(2); or
    (v) An aggressive performance-based payment schedule that increases 
risk.
    (4) Below normal conditions. The contracting officer may assign a 
lower than normal value when the contract type risk is low. Conditions 
indicating lower than normal contract type risk are:
    (i) Very mature product line with extensive cost history;
    (ii) Relatively short-term contracts;
    (iii) Contractual provisions that substantially reduce the 
contractor's risk, e.g. economic price adjustment provisions; and
    (iv) Incentive provisions that place a low amount of risk on the 
contractor.
    (v) A performance-based payment schedule that is routine with 
minimal risk.
    (e) Costs financed. (1) Costs financed equal the total costs 
multiplied by the percent of costs financed by the contractor.
    (2) Total costs may be reduced as appropriate when--
    (i) The contractor has little cash investment (e.g., subcontractor 
progress payments are liquidated late in the period of performance);
    (ii) Some costs are covered by special funding arrangements, such as 
advance payments;
    (3) The portion financed by the contractor is generally the portion 
not covered by progress payments. (i.e., for progress payments: 100 
percent minus the customary progress payments rate. For example, if a 
contractor receives progress payments at 75 percent, the portion 
financed by the contractor is 25 percent. On contracts that provide 
progress payments to small business, use the customary progress payment 
rate for large businesses.)
    (f) Contract length factor. (1) This is the period of time that the 
contractor has a working capital investment in the contract. It--
    (i) Is based on the time necessary for the contractor to complete 
the substantive portion of the work;
    (ii) Is not necessarily the period of time between contract award 
and final delivery, as periods of minimal effort should be excluded;
    (iii) Should not include periods of performance contained in option 
provisions when calculating the objective for the base period; and
    (iv) Should not, for multiyear contracts, include periods of 
performance beyond that required to complete the initial year's 
requirements.
    (2) The contracting officer--
    (i) Should use the following to select the contract length factor:

------------------------------------------------------------------------
                                                             Contract
   Period to perform substantive portion  (in months)      length factor
------------------------------------------------------------------------
21 or less..............................................             .40
22 to 27................................................             .65
28 to 33................................................             .90
34 to 39................................................            1.15
40 or more..............................................            1.40
------------------------------------------------------------------------

    (ii) Should develop a weighted average contract length when the 
contract has multiple deliveries; and

[[Page 241]]

    (iii) May use sampling techniques provided they produce a 
representative result.
    (3) Example: A prospective contract has a performance period of 40 
months with end items being delivered in the 34th, 36th, 38th and 40th 
months of the contract. The average period is 37 months and the contract 
length factor is 1.15.

[64 FR 51474, Sept. 23, 1999]



1815.404-471-4  Other considerations.

    (a) Other Considerations may be included by the contracting officer 
to account for special circumstances, such as contractor efficiencies or 
unusual acceptance of contractual or program risks that are not 
adequately addressed in the structured approach calculations described 
in 1815.404-471-2 or 1815.404-4713. The total adjustment resulting from 
Other Considerations may be positive or negative but in no case should 
the total adjustment exceed +/-5 percent.
    (b) The contracting officer shall analyze and verify information 
provided by the contractor that demonstrates that the special 
circumstances being recognized under this section--
    (1) Provide substantial benefits to the Government under the 
contract and/or overall program;
    (2) Have not been recognized in the structured approach 
calculations; and
    (3) Represent unusual and innovative actions or acceptance of risk 
by the contractor.
    (c) Examples of special circumstances include, but are not limited 
to the following:
    (1) Consistent demonstration by the contractor of excellent past 
performance within the last three years, with a special emphasis on 
excellence in safety, may merit an upward adjustment of as much as 1 
percent. Similarly, an assessment of poor past performance, especially 
in the area of safety, may merit a downward adjustment of as much -1 
percent. This consideration is especially important when negotiating 
modifications or changes to an ongoing contract.
    (2) Extraordinary steps to achieve the Government's socioeconomic 
goals, environmental goals, and public policy goals established by law 
or regulation that are sufficiently unique or unusual may merit an 
upward adjustment of as much as .5 percent. Similarly, for non-
participation in or violation of Federal programs, the contracting 
officer may adjust the objective by as much as -.5 percent. However, 
this consideration does not apply to the utilization of small 
disadvantaged businesses. Incentives for use of these firms may only be 
structured according to FAR 19.1203 and 19.1204(c).
    (3) Consideration of up to 1 percent should be given when contract 
performance requires the expenditure of significant corporate capital 
resources.
    (4) Unusual requests for use of government facilities and property 
may merit a downward adjustment of as much as--1 percent.
    (5) Cost efficiencies arising from innovative product design, 
process improvements, or integration of a life cycle cost approach for 
the design and development of systems that minimize maintenance and 
operations costs, that have not been recognized in Performance Risk or 
Contract Type Risk, may merit an upward adjustment. This factor is 
intended to recognize and reward improvements resulting from better 
ideas and management that will benefit the Government in the contract 
and/or program.
    (d) Other considerations need not be limited to situations that 
increase profit/fee levels. A negative consideration may be appropriate 
when there is a significant expectation of near-term spin-off benefits 
as a direct result of the contract.

[64 FR 51475, Sept. 23, 1999]



1815.404-471-5  Facilities capital cost of money.

    (a) When facilities capital cost of money is included as an item of 
cost in the contractor's proposal, it shall not be included in the cost 
base for calculating profit/fee. In addition, a reduction in the profit/
fee objective shall be made in the amount equal to the facilities 
capital cost of money allowed in accordance with FAR 31.205-10(b) or 1 
percent of the cost base, whichever is less.
    (b) CAS 417, cost of money as an element of the cost of capital 
assets under

[[Page 242]]

construction, should not appear in contract proposals. These costs are 
included in the initial value of a facility for purposes of calculating 
depreciation under CAS 414.

[64 FR 51476, Sept. 23, 1999, as amended at 68 FR 45169, Aug. 1, 2003]



1815.404-471-6  Modification to structured profit/fee approach for nonprofit organizations.

    (a) The structured approach was designed for determining profit or 
fee objectives for commercial organizations. However, the structured 
approach must be used as a basis for arriving at profit/fee objectives 
for nonprofit organizations (FAR subpart 31.7), excluding educational 
institutions (FAR subpart 31.3), in accordance with paragraph (b) of 
this section. It is NASA policy not to pay profit or fee on contracts 
with educational institutions.
    (b) For contracts with nonprofit organizations under which profit or 
fee is involved, an adjustment of up to 3 percent of the costs in Block 
13 of NASA Form 634 must be subtracted from the total profit/fee 
objective. In developing this adjustment, it is necessary to consider 
the following factors:
    (1) Tax position benefits;
    (2) Granting of financing through letters of credit;
    (3) Facility requirements of the nonprofit organization; and
    (4) Other pertinent factors that may work to either the advantage or 
disadvantage of the contractor in its position as a nonprofit 
organization.

[65 FR 45306, July 21, 2000]



1815.404-472  Payment of profit or fee under letter contracts.

    NASA's policy is to pay profit or fee only on definitized contracts.

[65 FR 12485, Mar. 9, 2000]



1815.406  Documentation.



1815.406-1  Prenegotiation objectives. (NASA supplements paragraph (b))

    (b)(i) Before conducting negotiations requiring installation or 
Headquarters review, contracting officers or their representatives shall 
prepare a prenegotiation position memorandum setting forth the 
technical, business, contractual, pricing, and other aspects to be 
negotiated.
    (ii) A prenegotiation position memorandum is not required for 
contracts awarded under the competitive negotiated procedures of FAR 
15.3 and 1815.3.



1815.406-170  Content of the prenegotiation position memorandum.

    The prenegotiation position memorandum (PPM) should fully explain 
the contractor and Government positions. Since the PPM will ultimately 
become the basis for negotiation, it should be structured to track to 
the price negotiation memorandum (see FAR 15.406-3 and 1815.406-3). In 
addition to the information described in FAR 15.406-1 and, as 
appropriate, 15.406-3(a), the PPM should address the following subjects, 
as applicable, in the order presented:
    (a) Introduction. Include a description of the acquisition and a 
history of prior acquisitions for the same or similar items. Address the 
extent of competition and its results. Identify the contractor and place 
of performance (if not evident from the description of the acquisition). 
Document compliance with law, regulations and policy, including JOFOC, 
synopsis, EEO compliance, and current status of contractor systems (see 
FAR 15.406-3(a)(4)). In addition, the negotiation schedule should be 
addressed and the Government negotiation team members identified by name 
and position.
    (b) Type of contract contemplated. Explain the type of contract 
contemplated and the reasons for its suitability.
    (c) Special features and requirements. In this area, discuss any 
special features (and related cost impact) of the acquisition, including 
such items as--
    (1) Letter contract or precontract costs authorized and incurred;
    (2) Results of preaward survey;
    (3) Contract option requirements;
    (4) Government property to be furnished;
    (5) Contractor/Government investment in facilities and equipment 
(and any modernization to be provided by the contractor/Government);

[[Page 243]]

    (6) Any deviations, special clauses, or unusual conditions 
anticipated, for example, unusual financing, warranties, EPA clauses and 
when approvals were obtained, if required; and
    (7) Any risk management issues, e.g., mission success, safety, 
occupational health, information technology, export control, security, 
and environmental risks.
    (d) Cost analysis. For the basic requirement, and any option, 
include--
    (1) A parallel tabulation, by element of cost and profit/fee, of the 
contractor's proposal and the Government's negotiation objective. The 
negotiation objective represents the fair and reasonable price the 
Government is willing to pay for the supplies/services. For each element 
of cost, compare the contractor's proposal and the Government position, 
explain the differences and how the Government position was developed, 
including the estimating assumptions and projection techniques employed, 
and how the positions differ in approach. Include a discussion of 
excessive wages found (if applicable) and their planned resolution. 
Explain how historical costs, including costs incurred under a letter 
contract (if applicable), were used in developing the negotiation 
objective.
    (2) Significant differences between the field pricing report 
(including any audit reports) and the negotiation objectives and/or 
contractor's proposal shall be highlighted and explained. For each 
proposed subcontract meeting the requirement of FAR 15.404-3(c), there 
shall be a discussion of the price and, when appropriate, cost analyses 
performed by the contracting officer, including the negotiation 
objective for each such subcontract. The discussion of each major 
subcontract shall include the type of subcontract, the degree of 
competition achieved by the prime contractor, the price and, when 
appropriate, cost analyses performed on the subcontractor's proposal by 
the prime contractor, any unusual or special pricing or finance 
arrangements, and the current status of subcontract negotiations.
    (3) The rationale for the Government's profit/fee objectives and, if 
appropriate, a completed copy of the NASA Form 634, Structured Approach-
-Profit/Fee Objective, and DD Form 1861, Contract Facilities Capital 
Cost of Money, should be included. For incentive and award fee 
contracts, describe the planned arrangement in terms of share lines, 
ceilings, and cost risk.
    (e) Negotiation approval sought. The PPM represents the Government's 
realistic assessment of the fair and reasonable price for the supplies 
and services to be acquired. If negotiations subsequently demonstrate 
that a higher dollar amount (or significant term or condition) is 
reasonable, the contracting officer shall document the rationale for 
such a change and request approval to amend the PPM from the original 
approval authority.

[63 FR 9954, Feb. 27, 1998, as amended at 65 FR 37059, June 13, 2000]



1815.406-171  Installation reviews.

    Each contracting activity shall establish procedures to review all 
prenegotiation position memoranda. The scope of coverage, exact 
procedures to be followed, levels of management review, and contract 
file documentation requirements should be directly related to the dollar 
value and complexity of the acquisition. The primary purpose of these 
reviews is to ensure that the negotiator, or negotiation team, is 
thoroughly prepared to enter into negotiations with a well-conceived, 
realistic, and fair plan.



1815.406-172  Headquarters reviews.

    (a) When a prenegotiation position has been selected for 
Headquarters review and approval, the contracting activity shall submit 
to the Office of Procurement (Code HS) one copy each of the 
prenegotiation position memorandum, the contractor's proposal, the 
Government technical evaluations, and all pricing reports (including any 
audit reports).
    (b) The required information described in paragraph (a) of this 
section shall be furnished to Headquarters as soon as practicable and 
sufficiently in advance of the planned commencement of negotiations to 
allow a reasonable period of time for Headquarters review. Electronic 
submittal is acceptable.

[[Page 244]]



1815.406-3  Documenting the negotiation. (NASA supplements paragraph (a))

    (a)(i) The price negotiation memorandum (PNM) serves as a detailed 
summary of: the technical, business, contractual, pricing (including 
price reasonableness), and other elements of the contract negotiated; 
and the methodology and rationale used in arriving at the final 
negotiated agreement.
    (ii) A PNM is not required for a contract awarded under competitive 
negotiated procedures. However, the information required by FAR 15.406-3 
shall be reflected in the evaluation and selection documentation to the 
extent applicable.
    (iii) When the PNM is a ``stand-alone'' document, it shall contain 
the information required by the FAR and NFS for both PPMs and PNMs. 
However, when a PPM has been prepared under 1815.406-1, the subsequent 
PNM need only provide any information required by FAR 15.406-3 that was 
not provided in the PPM, as well as any changes in the status of factors 
affecting cost elements (e.g., use of different rates, hours, or 
subcontractors; wage rate determinations; or the current status of the 
contractor's systems).



1815.407  Special cost or pricing areas.



1815.407-2  Make-or-buy programs. (NASA supplements paragraph (e))

    (e)(1) Make-or-buy programs should not include items or work efforts 
estimated to cost less than $500,000.



1815.408  Solicitation provisions and contract clauses.



1815.408-70  NASA solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 1852.215-
78, Make-or-Buy Program Requirements, in solicitations requiring make-
or-buy programs as provided in FAR 15.407-2(c). This provision shall be 
used in conjunction with the clause at FAR 52.215-9, Changes or 
Additions to Make-or-Buy Program. The contracting officer may add 
additional paragraphs identifying any other information required in 
order to evaluate the program.
    (b) The contracting officer shall insert the clause at 1852.215-79, 
Price Adjustment for ``Make-or-Buy'' Changes, in contracts that include 
FAR 52.215-9 with its Alternate I or II. Insert in the appropriate 
columns the items that will be subject to a reduction in the contract 
value.



Subpart 1815.5--Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes



1815.504  Award to successful offeror.

    The reference to notice of award in FAR 15.504 on negotiated 
acquisitions is a generic one. It relates only to the formal 
establishment of a contractual document obligating both the Government 
and the offeror. The notice is effected by the transmittal of a fully 
approved and executed definitive contract document, such as the award 
portion of SF 33, SF 26, SF 1449, or SF 1447, or a letter contract when 
a definitized contract instrument is not available but the urgency of 
the requirement necessitates immediate performance. In this latter 
instance, the procedures in 1816.603 for approval and issuance of letter 
contracts shall be followed.



1815.506  Postaward debriefing of offerors.



1815.506-70  Debriefing of offerors--Major System acquisitions.

    (a) When an acquisition is conducted in accordance with the Major 
System acquisition procedures in part 1834 and multiple offerors are 
selected, the debriefing will be limited in such a manner that it does 
not prematurely disclose innovative concepts, designs, and approaches of 
the successful offerors that would result in a transfusion of ideas.
    (b) When Phase B awards are made for alternative system design 
concepts, the source selection statements shall not be released to 
competing offerors or the general public until the release of the source 
selection statement for Phase C/D without the approval of the Assistant 
Administrator for Procurement (Code HS).

[[Page 245]]



                  Subpart 1815.6--Unsolicited Proposals



1815.602  Policy. (NASA paragraphs (1) and (2))

    (1) An unsolicited proposal may result in the award of a contract, 
grant, cooperative agreement, or other agreement. If a grant or 
cooperative agreement is used, the NASA Grant and Cooperative Agreement 
Handbook (NPG 5800.1) applies.
    (2) Renewal proposals (i.e., those for the extension or augmentation 
of current contracts) are subject to the same FAR and NFS regulations, 
including the requirements of the Competition in Contracting Act, as are 
proposals for new contracts.



1815.604  Agency points of contact. (NASA supplements paragraph (a))

    (a) Information titled ``Guidance for the Preparation and Submission 
of Unsolicited Proposals'' is available on the Internet at http://
ec.msfc.nasa.gov/hq/library/unSol-Prop.html. A deviation is required for 
use of any modified or summarized version of the Internet information or 
for alternate means of general dissemination of unsolicited proposal 
information.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998; 66 
FR 53546, Oct. 23, 2001]



1815.606  Agency procedures. (NASA supplements paragraphs (a) and (b))

    (a) NASA will not accept for formal evaluation unsolicited proposals 
initially submitted to another agency or to the Jet Propulsion 
Laboratory (JPL) without the offeror's express consent.
    (b)(i) NASA Headquarters and each NASA field installation shall 
designate a point of contact for receiving and coordinating the handling 
and evaluation of unsolicited proposals.
    (ii) Each installation shall establish procedures for handling 
proposals initially received by other offices within the installation. 
Misdirected proposals shall be forwarded by the point of contact to the 
proper installation. Points of contact are also responsible for 
providing guidance to potential offerors regarding the appropriate NASA 
officials to contact for general mission-related inquiries or other 
preproposal discussions.
    (iii) Points of contact shall keep records of unsolicited proposals 
received and shall provide prompt status information to requesters. 
These records shall include, at a minimum, the number of unsolicited 
proposals received, funded, and rejected during the fiscal year; the 
identity of the offerors; and the office to which each was referred. The 
numbers shall be broken out by source (large business, small business, 
university, or nonprofit institution).



1815.606-70  Relationship of unsolicited proposals to NRAs.

    An unsolicited proposal for a new effort or a renewal, identified by 
an evaluating office as being within the scope of an open NRA, shall be 
evaluated as a response to that NRA (see 1835.016-71), provided that the 
evaluating office can either:
    (a) State that the proposal is not at a competitive disadvantage, or
    (b) Give the offeror an opportunity to amend the unsolicited 
proposal to ensure compliance with the applicable NRA proposal 
preparation instructions. If these conditions cannot be met, the 
proposal must be evaluated separately.

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 48561, Sept. 7, 1999]



1815.609  Limited use of data.



1815.609-70  Limited use of proposals.

    Unsolicited proposals shall be evaluated outside the Government only 
to the extent authorized by, and in accordance with, the procedures 
prescribed in, 1815.207-70.



1815.670  Foreign proposals.

    Unsolicited proposals from foreign sources are subject to NPD 
1360.2, Initiation and Development of International Cooperation in Space 
and Aeronautics Programs.

[64 FR 36606, July 7, 1999]

[[Page 246]]



                       Subpart 1815.70--Ombudsman



1815.7001  NASA Ombudsman Program.

    NASA's implementation of an ombudsman program is in NPG 5101.33, 
Procurement Advocacy Programs.

[63 FR 9954, Feb. 27, 1998, as amended at 65 FR 58931, Oct. 3, 2000]



1815.7002  Synopses of solicitations and contracts.

    In all synopses announcing competitive acquisitions, the contracting 
officer shall indicate that the clause at 1852.215-84, Ombudsman, is 
applicable. This may be accomplished by referencing the clause number 
and identifying the installation Ombudsman.



1815.7003  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the one at 1852.215-84, Ombudsman, in all solicitations (including 
draft solicitations) and contracts. Use the clause with its Alternate I 
when a task or delivery order contract is contemplated.

[65 FR 38777, June 22, 2000]



PART 1816--TYPES OF CONTRACTS--Table of Contents




                Subpart 1816.1--Selecting Contract Types

Sec.
1816.104 Factors in selecting contract types.
1816.104-70 Contract type for performance-based contracting (PBC).

                  Subpart 1816.2--Fixed-Price Contracts

1816.202 Firm-fixed-price contracts.
1816.202-70 NASA contract clause.
1816.203 Fixed-price contracts with economic price adjustment.
1816.203-4 Contract clauses.

              Subpart 1816.3--Cost-Reimbursement Contracts

1816.303-70 Cost-sharing contracts.
1816.306 Cost-plus-fixed-fee contracts.
1816.307 Contract clauses.
1816.307-70 NASA contract clauses.

                   Subpart 1816.4--Incentive Contracts

1816.402 Application of predetermined, formula-type incentives. (NASA 
          paragraphs 1,2 and 3).
1816.402-2 Performance incentives.
1816.402-270 NASA technical performance incentives.
1816.404 Fixed-price contracts with award fees.
1816.405 Cost-reimbursement incentive contracts.
1816.405-2 Cost-plus-award-fee (CPAF) contracts.
1816.405-270 CPAF contracts.
1816.405-271 Base fee.
1816.405-272 Award fee evaluation periods.
1816.405-273 Award fee evaluations.
1816.405-274 Award fee evaluation factors.
1816.405-275 Award fee evaluation scoring.
1816.405-276 Award fee payments and limitations.
1816.406 Contract clauses.
1816.406-70 NASA contract clauses.

              Subpart 1816.5--Indefinite-Delivery Contracts

1816.504 Indefinite quantity contracts.
1816.505 Ordering.
1816.505-70 Task ordering.
1816.506-70 NASA contract clause.

  Subpart 1816.6--Time-and-Materials, Labor-House, and Letter Contracts

1816.603 Letter contracts.
1816.603-2 Application.
1816.603-370 Approvals.

    Authority: 42 U.S.C. 2473(c)(1).

    Source: 62 FR 3478, Jan. 23, 1997, unless otherwise noted.



                Subpart 1816.1--Selecting Contract Types

    Source: 63 FR 12997, Mar. 17, 1998, unless otherwise noted.



1816.104  Factors in selecting contract types.



1816.104-70  Contract type for performance-based contracting (PBC).

    (a) PBC is defined in FAR 2.101 and discussed in FAR 37.6. Although 
FAR part 37 primarily addresses services contracts, PBC is not limited 
to these contracts. PBC is the preferred way of contracting for all 
supplies and services at NASA. Generally, when contract performance risk 
under a PBC specification can be fairly shifted to the contractor to 
allow for the operation of objective incentives, a contract type with 
objectively measurable incentives (e.g., FFP, FPIF, or CPIF) is 
appropriate. However, when contractor

[[Page 247]]

performance (e.g., cost control, schedule, or quality/technical) is best 
evaluated subjectively using quantitative measures, a CPAF contract may 
be used.
    (b) A PBC is a completion form of contract (something is 
accomplished). Term/level-of-effort, time-and-materials and labor hour 
contracts are not PBC.

[63 FR 12997, Mar. 17, 1998, as amended at 67 FR 30603, May 7, 2002]



                  Subpart 1816.2--Fixed-Price Contracts



1816.202  Firm-fixed-price contracts.



1816.202-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.216-78, 
Firm-Fixed-Price, in firm-fixed-price solicitations and contracts. 
Insert the appropriate amount in the resulting contract.



1816.203  Fixed-price contracts with economic price adjustment.



1816.203-4  Contract clauses. (NASA supplements paragraphs (a) and (d)).

    (a) In addition to the approval requirements in the prescriptions at 
FAR 52.216-2 through 52.216-4, the contracting officer shall coordinate 
with the installation's Deputy Chief Financial Officer (Finance) before 
exceeding the ten-percent limit in paragraph (c)(1) of the clauses at 
FAR 52.216-2 and 52.216-3 and paragraph (c)(4) of the clause at 52.216-
4.
    (d)(2) Contracting officers shall contact the Office of Procurement, 
Code HK, for specific guidance on preparing clauses using cost indexes. 
Such clauses require advance approval by the Assistant Administrator for 
Procurement. Requests for approval shall be submitted to the 
Headquarters Office of Procurement (Code HS).

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 5620, Feb. 4, 1999; 65 
FR 82296, Dec. 28, 2000]



              Subpart 1816.3--Cost-Reimbursement Contracts



1816.303-70  Cost-sharing contracts.

    (a) Cost-sharing with for-profit organizations. (1) Cost sharing by 
for-profit organizations is mandatory in any contract for basic or 
applied research resulting from an unsolicited proposal, and may be 
accepted in any other contract when offered by the proposing 
organization. The requirement for cost-sharing may be waived when the 
contracting officer determines in writing that the contractor has no 
commercial, production, education, or service activities that would 
benefit from the results of the research, and the contractor has no 
means of recovering its shared costs on such projects.
    (2) The contractor's cost-sharing may be any percentage of the 
project cost. In determining the amount of cost-sharing, the contracting 
officer shall consider the relative benefits to the contractor and the 
Government. Factors that should be considered include--
    (i) The potential for the contractor to recover its contribution 
from non-Federal sources;
    (ii) The extent to which the particular area of research requires 
special stimulus in the national interest; and
    (iii) The extent to which the research effort or result is likely to 
enhance the contractor's capability, expertise, or competitive 
advantage.
    (b) Cost-sharing with not-for-profit organizations. (1) Costs to 
perform research stemming from an unsolicited proposal by universities 
and other educational or not-for-profit institutions are usually fully 
reimbursed. When the contracting officer determines that there is a 
potential for significant benefit to the institution cost-sharing will 
be considered.
    (2) The contracting officer will normally limit the institution's 
share to no more than 10 percent of the project's cost.
    (c) Implementation. Cost-sharing shall be stated as a minimum 
percentage of the total allowable costs of the project.

[[Page 248]]

The contractor's contributed costs may not be charged to the Government 
under any other contract or grant, including allocation to other 
contracts and grants as part of an independent research and development 
program.



1816.306  Cost-plus-fixed-fee contracts. (NASA supplements paragraph (d)).

    (d) Completion and term forms.
    (4) Term form contracts are incompatible with performance base 
contracting (PBC) and should not be used with PBC requirements.



1816.307  Contract clauses. (NASA supplements paragraphs (a), (b), (d), and (g)).

    (a) In paragraph (h)(2)(ii)(B) of the Allowable Cost and Payment 
clause at FAR 52.216-7, the period of years may be increased to 
correspond with any statutory period of limitation applicable to claims 
of third parties against the contractor; provided, that a corresponding 
increase is made in the period for retention of records required in 
paragraph (f) of the clause at FAR 52.215-2, Audit and Records--
Negotiation.
    (b) In solicitations and contracts containing the clause at FAR 
52.216-8, Fixed Fee, the Schedule shall include appropriate terms, if 
any, for provisional billing against fee.
    (d) In solicitations and contracts containing the clause at FAR 
52.216-10, Incentive Fee, the Schedule shall include appropriate terms, 
if any, for provisional billing against fee.
    (g) In paragraph (g)(2)(ii) of the Allowable Cost and Payment--
Facilities clause at FAR 52.216-13, the period of years may be increased 
to correspond with any statutory period of limitation applicable to 
claims of third parties against the contractor; provided, that a 
corresponding increase is made in the period for retention of records 
required in paragraph (f) of the clause at FAR 52.215-2, Audit and 
Records--Negotiation.



1816.307-70  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.216-73, 
Estimated Cost and Cost Sharing, in each contract in which costs are 
shared by the contractor pursuant to 1816.303-70.
    (b) The contracting officer shall insert the clause substantially as 
stated at 1852.216-74, Estimated Cost and Fixed Fee, in cost-plus-fixed-
fee contracts.
    (c) The contracting officer may insert the clause at 1852.216-75, 
Payment of Fixed Fee, in cost-plus-fixed-fee contracts. Modifications to 
the clause are authorized.
    (d) The contracting officer may insert the clause at 1852.216-81, 
Estimated Cost, in cost-no-fee contracts that are not cost sharing or 
facilities contracts.
    (e) The contracting officer may insert a clause substantially as 
stated at 1852.216-87, Submission of Vouchers for Payment, in cost-
reimbursement solicitations and contracts.
    (f) When either FAR clause 52.216-7, Allowable Cost and Payment, or 
FAR clause 52.216-13, Allowable Cost and Payment--Facilities, is 
included in the contract, as prescribed at FAR 16.307 (a) and (g), the 
contracting officer should include the clause at 1852.216-89, Assignment 
and Release Forms.



                   Subpart 1816.4--Incentive Contracts



1816.402  Application of predetermined, formula-type incentives. (NASA paragraphs 1, 2 and 3).

    When considering the use of a quality, performance, or schedule 
incentive, the following guidance applies.
    (1) A positive incentive is generally not appropriate unless--
    (i) Performance above the target (or minimum, if there are no 
negative incentives) level is of significant value to the Government;
    (ii) The value of the higher level of performance is worth the 
additional cost/fee;
    (iii) The attainment of the higher level of performance is clearly 
within the control of the contractor; and
    (iv) An upper limit is identified, beyond which no further incentive 
is earned.
    (2) A negative incentive is generally not appropriate unless--
    (i) A target level of performance can be established, which the 
contractor can reasonably be expected to reach with a diligent effort, 
but a lower level

[[Page 249]]

of performance is also minimally acceptable;
    (ii) The value of the negative incentive is commensurate with the 
lower level of performance and any additional administrative costs; and
    (iii) Factors likely to prevent attainment of the target level of 
performance are clearly within the control of the contractor.
    (3) When a negative incentive is used, the contract must indicate a 
level below which performance is not acceptable.

[63 FR 12997, Mar. 17, 1998]



1816.402-2  Performance incentives.



1816.402-270  NASA technical performance incentives.

    (a) Pursuant to the guidelines in 1816.402, NASA has determined that 
a performance incentive shall be included in all contracts based on 
performance-oriented documents (see FAR 11.101(a)), except those awarded 
under the commercial item procedures of FAR part 12, where the primary 
deliverable(s) is (are) hardware with a total value (including options) 
greater than $25 million. Any exception to this requirement shall be 
approved in writing by the head of contracting activity. Performance 
incentives may be included in hardware contracts valued under $25 
million acquired under procedures other than FAR Part 12 at the 
discretion of the procurement officer upon consideration of the 
guidelines in 1816.402. Performance incentives, which are objective and 
measure hardware performance after delivery and acceptance, are separate 
from other incentives, such as cost or delivery incentives.
    (b) When a performance incentive is used, it shall be structured to 
be both positive and negative based on hardware performance after 
delivery and acceptance, unless the contract type requires complete 
contractor liability for product performance (e.g., fixed price). In 
this latter case, a negative incentive is not required. In structuring 
the incentives, the contract shall establish a standard level of 
performance based on the salient hardware performance requirement. This 
standard performance level is normally the contract's minimum 
performance requirement. No incentive amount is earned at this standard 
performance level. Discrete units of measurement based on the same 
performance parameter shall be identified for performance above and, 
when a negative incentive is used, below the standard. Specific 
incentive amounts shall be associated with each performance level from 
maximum beneficial performance (maximum positive incentive) to, when a 
negative incentive is included, minimal beneficial performance or total 
failure (maximum negative incentive). The relationship between any given 
incentive, either positive and negative, and its associated unit of 
measurement should reflect the value to the Government of that level of 
hardware performance. The contractor should not be rewarded for above-
standard performance levels that are of no benefit to the Government.
    (c) The final calculation of the performance incentive shall be done 
when hardware performance, as defined in the contract, ceases or when 
the maximum positive incentive is reached. When hardware performance 
ceases below the standard established in the contract and a negative 
incentive is included, the Government shall calculate the amount due and 
the contractor shall pay the Government that amount. Once hardware 
performance exceeds the standard, the contractor may request payment of 
the incentive amount associated with a given level of performance, 
provided that such payments shall not be more frequent than monthly. 
When hardware performance ceases above the standard level of 
performance, or when the maximum positive incentive is reached, the 
Government shall calculate the final performance incentive earned and 
unpaid and promptly remit it to the contractor.
    (d) When the deliverable hardware lends itself to multiple, 
meaningful measures of performance, multiple performance incentives may 
be established. When the contract requires the sequential delivery of 
several hardware items (e.g. multiple spacecraft), separate performance 
incentive structures may be established to parallel the sequential 
delivery and use of the deliverables.

[[Page 250]]

    (e) In determining the value of the maximum performance incentives 
available, the contracting officer shall follow the following rules.
    (1) For a CPFF contract, the sum of the maximum positive performance 
incentive and fixed fee shall not exceed the limitations in FAR 15.404-
4(c)(4)(i).
    (2) For an award fee contract.
    (i) The individual values of the maximum positive performance 
incentive and the total potential award fee (including any base fee) 
shall each be at least one-third of the total potential contract fee. 
The remaining one-third of the total potential contract fee may be 
divided between award fee and the maximum performance incentive at the 
discretion of the contracting officer.
    (ii) The maximum negative performance incentive for research and 
development hardware (e.g., the first and second units) shall be equal 
in amount to the total earned award fee (including any base fee). The 
maximum negative performance incentives for production hardware (e.g., 
the third and all subsequent units of any hardware items) shall be equal 
in amount to the total potential award fee (including any base fee). 
Where one contract contains both cases described above, any base fee 
shall be allocated reasonably among the items.
    (3) For cost reimbursement contracts other than award fee contracts, 
the maximum negative performance incentives shall not exceed the total 
earned fee under the contract.

[62 FR 3478, Jan. 23, 1997, as amended at 62 FR 58687, Oct. 30, 1997; 63 
FR 9965, Feb. 27, 1998; 63 FR 12997, Mar. 17, 1998; 63 FR 28285, May 22, 
1998; 68 FR 23424, May 2, 2003]



1816.404  Fixed-price contracts with award fees.

    Section 1816.405-2 applies to the use of FPAF contracts as if they 
were CPAF contracts. However, neither base fee (see 1816.405-271) nor 
evaluation of cost control (see 1816.405-274) apply to FPAF contracts.

[62 FR 58687, Oct. 30, 1997]



1816.405  Cost-reimbursement incentive contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



1816.405-2  Cost-plus-award-fee (CPAF) contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



1816.405-270  CPAF contracts.

    (a) Use of an award fee incentive shall be approved in writing by 
the procurement officer. The procurement officer's approval shall 
include a discussion of the other types of contracts considered and 
shall indicate why an award fee incentive is the appropriate choice. 
Award fee incentives should not be used on contracts with a total 
estimated cost and fee less than $2 million per year. The procurement 
officer may authorize use of award fee for lower-valued acquisitions, 
but should do so only in exceptional situations, such as contract 
requirements having direct health or safety impacts, where the 
judgmental assessment of the quality of contractor performance is 
critical.
    (b) Except as provided in paragraph (c) of this section, an award 
fee incentive may be used in conjunction with other contract types for 
aspects of performance that cannot be objectively assessed. In such 
cases, the cost incentive is based on objective formulas inherent in the 
other contract types (e.g., FPI, CPIF), and the award fee provision 
should not separately incentivize cost performance.
    (c) Award fee incentives shall not be used with a cost-plus-fixed-
fee (CPFF) contract.

[63 FR 12998, Mar. 17, 1998]



1816.405-271  Base fee.

    (a) A base fee shall not be used on CPAF contracts for which the 
periodic award fee evaluations are final (1816.405-273(a)). In these 
circumstances, contractor performance during any award fee period is 
independent of and has no effect on subsequent performance periods or 
the final results at contract completion. For

[[Page 251]]

other contracts, such as those for hardware or software development, the 
procurement officer may authorize the use of a base fee not to exceed 3 
percent. Base fee shall not be used when an award fee incentive is used 
in conjunction with another contract type (e.g., CPIF/AF).
    (b) When a base fee is authorized for use in a CPAF contract, it 
shall be paid only if the final award fee evaluation is ``satisfactory'' 
or better. (See 1816.405-273 and 1816.405-275) Pending final evaluation, 
base fee may be paid during the life of the contract at defined 
intervals on a provisional basis. If the final award fee evaluation is 
``poor/unsatisfactory'', all provisional base fee payments shall be 
refunded to the Government.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
July 9, 1997; 63 FR 13133, Mar. 18, 1998]



1816.405-272  Award fee evaluation periods.

    (a) Award fee evaluation periods, including those for interim 
evaluations, should be at least 6 months in length. When appropriate, 
the procurement officer may authorize shorter evaluation periods after 
ensuring that the additional administrative costs associated with the 
shorter periods are offset by benefits accruing to the Government. Where 
practicable, such as developmental contracts with defined performance 
milestones (e.g., Preliminary Design Review, Critical Design Review, 
initial system test), establishing evaluation periods at conclusion of 
the milestones rather than calendar dates, or in combination with 
calendar dates should be considered. In no case shall an evaluation 
period be longer than 12 months.
    (b) A portion of the total available award fee contract shall be 
allocated to each of the evaluation periods. This allocation may result 
in an equal or unequal distribution of fee among the periods. The 
contracting officer should consider the nature of each contract and the 
incentive effects of fee distribution in determining the appropriate 
allocation structure.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997, 
as amended at 63 FR 13133, Mar. 18, 1998]



1816.405-273  Award fee evaluations.

    (a) Service contracts. On contracts where the contract deliverable 
is the performance of a service over any given time period, contractor 
performance is often definitively measurable within each evaluation 
period. In these cases, all evaluations are final, and the contractor 
keeps the fee earned in any period regardless of the evaluations of 
subsequent periods. Unearned award fee in any given period in a service 
contract is lost and shall not be carried forward, or ``rolled-over,'' 
into subsequent periods.
    (b) End item contracts. On contracts, such as those for end item 
deliverables, where the true quality of contractor performance cannot be 
measured until the end of the contract, only the last evaluation is 
final. At that point, the total contract award fee pool is available, 
and the contractor's total performance is evaluated against the award 
fee plan to determine total earned award fee. In addition to the final 
evaluation, interim evaluations are done to monitor performance prior to 
contract completion, provide feedback to the contractor on the 
Government's assessment of the quality of its performance, and establish 
the basis for making interim award fee payments (see 1816.405-276(a)). 
These interim evaluations and associated interim award fee payments are 
superseded by the fee determination made in the final evaluation at 
contract completion. The Government will then pay the contractor, or the 
contractor will refund to the Government, the difference between the 
final award fee determination and the cumulative interim fee payments.
    (c) Control of evaluations. Interim and final evaluations may be 
used to provide past performance information during the source selection 
process in future acquisitions and should be marked and controlled as 
``Source Selection Information--See FAR 3.104''.

[63 FR 13133, Mar. 18, 1998]



1816.405-274  Award fee evaluation factors.

    (a) Explicit evaluation factors shall be established for each award 
fee period.

[[Page 252]]

    (b) Evaluation factors will be developed by the contracting officer 
based upon the characteristics of an individual procurement. Normally, 
technical and schedule considerations will be included in all CPAF 
contracts as evaluation factors. Cost control shall be included as an 
evaluation factor in all CPAF contracts. When explicit evaluation factor 
weightings are used, cost control shall be no less than 25 percent of 
the total weighted evaluation factors. The predominant consideration of 
the cost control evaluation should be a measurement of the contractor's 
performance against the negotiated estimated cost of the contract. This 
estimated cost may include the value of undefinitized change orders when 
appropriate.
    (c)(1) The technical factor, if used, must include consideration of 
risk management (including mission success, safety, security, health, 
export control, and damage to the environment, as appropriate) unless 
waived at a level above the contracting officer, with the concurrence of 
the project manager. The rationale for any waiver shall be documented in 
the contract file. When safety, export control, or security are 
considered under the technical factor, the award fee plan shall allow 
the following fee determinations, regardless of contractor performance 
in other evaluation factors, when there is a major breach of safety or 
security.
    (i) For evaluation of service contracts under 1816.405-273(a), an 
overall fee determination of zero for any evaluation period in which 
there is a major breach of safety or security.
    (ii) For evaluation of end item contracts under 1816.405-273(b), an 
overall fee determination of zero for any interim evaluation period in 
which there is a major breach of safety or security. To ensure that the 
final award fee evaluation at contract completion reflects any major 
breach of safety or security, in an interim period, the overall award 
fee pool shall be reduced by the amount of the fee available for the 
period in which the major breach occurred if a zero fee determination 
was made because of a major breach of safety or security.
    (2) A major breach of safety must be related directly to the work on 
the contract. A major breach of safety is an act or omission of the 
Contractor that consists of an accident, incident, or exposure resulting 
in a fatality or mission failure; or in damage to equipment or property 
equal to or greater than $1 million; or in any ``willful'' or ``repeat'' 
violation cited by the Occupational Safety and Health Administration 
(OSHA) or by a state agency operating under an OSHA approved plan.
    (3) A major breach of security may occur on or off Government 
installations, but must be directly related to the work on the contract. 
A major breach of security is an act or omission by the contractor that 
results in compromise of classified information, illegal technology 
transfer, workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.
    (4) The Assistant Administrator for Procurement (Code HS) shall be 
notified prior to the determination of a zero award fee because of a 
major breach of safety or security.
    (d) In rare circumstances, contract costs may increase for reasons 
outside the contractor's control and for which the contractor is not 
entitled to an equitable adjustment. One example is a weather-related 
launch delay on a launch support contract. The Government shall take 
such situations into consideration when evaluating contractor cost 
control.
    (e) Emphasis on cost control should be balanced against other 
performance requirement objectives. The contractor should not be 
incentivized to pursue cost control to the point that overall 
performance is significantly degraded. For example, incentivizing an 
underrun that results in direct negative impacts on technical 
performance, safety, or other critical contract objectives is both 
undesirable and counterproductive. Therefore, evaluation of cost control 
shall conform to the following guidelines:
    (1) Normally, the contractor should be given a score of 0 for cost 
control when there is a significant overrun within its control. However, 
the contractor may receive higher scores for

[[Page 253]]

cost control if the overrun is insignificant. Scores should decrease 
sharply as the size of the overrun increases. In any evaluation of 
contractor overrun performance, the Government shall consider the 
reasons for the overrun and assess the extent and effectiveness of the 
contractor's efforts to control or mitigate the overrun.
    (2) The contractor should normally be rewarded for an underrun 
within its control, up to the maximum score allocated for cost control, 
provided the average numerical rating for all other award fee evaluation 
factors is 81 or greater (see 1816.405-275). An underrun shall be 
rewarded as if the contractor has met the estimated cost of the contract 
(see 1816.405-274(d)(3)) when the average numerical rating for all other 
factors is less than 81 but greater than 60.
    (3) The contractor should be rewarded for meeting the estimated cost 
of the contract, but not to the maximum score allocated for cost 
control, to the degree that the contractor has prudently managed costs 
while meeting contract requirements. No award shall be given in this 
circumstance unless the average numerical rating for all other award fee 
evaluation factors is 61 or greater.
    (f) When an AF arrangement is used in conjunction with another 
contract type, the award fee's cost control factor will only apply to a 
subjective assessment of the contractor's efforts to control costs and 
not the actual cost outcome incentivized under the basic contract type 
(e.g. CPIF, FPIF).
    (g)(1) The contractor's performance against the subcontracting plan 
incorporated in the contract shall be evaluated. Emphasis may be placed 
on the contractor's accomplishment of its goals for subcontracting with 
small business, HUBZone small business, women-owned small business, 
veteran-owned small business, and service-disabled veteran-owned small 
business concerns.
    (2) The contractor's performance against the contract target for 
participation as subcontractors by small disadvantaged business concerns 
in the NAICS Major Groups designated by the Department of Commerce (see 
FAR 19.201(c)) shall also be evaluated if the clause at FAR 52.219-26, 
Small Disadvantaged Business Participation--Incentive Subcontracting, is 
not included in the contract (see FAR 19.1204(c)).
    (3) The contractor's achievements in subcontracting high technology 
efforts as well as the contractor's performance under the Mentor-Protege 
Program, if applicable, may also be evaluated.
    (4) The evaluation weight given to the contractor's performance 
against the considerations in paragraphs (g)(1) through (g)(3) of this 
section should be significant (up to 15 percent of available award fee). 
The weight should motivate the contractor to focus management attention 
to subcontracting with small, HUBZone, women-owned, veteran-owned, and 
service-disabled veteran-owned small business concerns, and with small 
disadvantaged business concerns in designated NAICS Major Groups to the 
maximum extent practicable, consistent with efficient contract 
performance.
    (h) When contract changes are anticipated, the contractor's 
responsiveness to requests for change proposals should be evaluated. 
This evaluation should include the contractor's submission of timely, 
complete proposals and cooperation in negotiating the change.
    (i) Only the award fee performance evaluation factors set forth in 
the performance evaluation plan shall be used to determine award fee 
scores.
    (j) The Government may unilaterally modify the applicable award fee 
performance evaluation factors and performance evaluation areas prior to 
the start of an evaluation period. The contracting officer shall notify 
the contractor in writing of any such changes 30 days prior to the start 
of the relevant evaluation period.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 63 FR 12998, Mar. 17, 1998; 64 FR 25215, May 11, 
1999; 65 FR 37059, June 13, 2000; 65 FR 46628, July 31, 2000; 65 FR 
58932, Oct. 3, 2000; 65 FR 70316, Nov. 22, 2000; 66 FR 53547, Oct. 23, 
2001; 67 FR 7618, Feb. 20, 2002]



1816.405-275  Award fee evaluation scoring.

    (a) A scoring system of 0-100 shall be used for all award fee 
ratings. Award fee earned is determined by applying the numerical score 
to the award fee

[[Page 254]]

pool. For example, a score of 85 yields an award fee of 85 percent of 
the award fee pool. No award fee shall be paid unless the total score is 
61 or greater.
    (b) The following standard adjectival ratings and the associated 
numerical scores shall be used on all award fee contracts.
    (1) Excellent (100-91): Of exceptional merit; exemplary performance 
in a timely, efficient, and economical manner; very minor (if any) 
deficiencies with no adverse effect on overall performance.
    (2) Very good (90-81): Very effective performance, fully responsive 
to contract requirements; contract requirements accomplished in a 
timely, efficient, and economical manner for the most part; only minor 
deficiencies.
    (3) Good (80-71): Effective performance; fully responsive to 
contract requirements; reportable deficiencies, but with little 
identifiable effect on overall performance.
    (4) Satisfactory (70-61): Meets or slightly exceeds minimum 
acceptable standards; adequate results; reportable deficiencies with 
identifiable, but not substantial, effects on overall performance.
    (5) Poor/Unsatisfactory (less than 61): Does not meet minimum 
acceptable standards in one or more areas; remedial action required in 
one or more areas; deficiencies in one or more areas which adversely 
affect overall performance.
    (c) As a benchmark for evaluation, in order to be rated 
``Excellent,'' the contractor must be under cost, on or ahead of 
schedule, and have provided excellent technical performance.
    (d) A scoring system appropriate for the circumstances of the 
individual contract requirement should be developed. Weighted scoring is 
recommended. In this system, each evaluation factor (e.g., technical, 
schedule, cost control) is assigned a specific percentage weighting with 
the cumulative weightings of all factors totaling 100. During the award 
fee evaluation, each factor is scored from 0-100 according to the 
ratings defined in 1816.405-275(b). The numerical score for each factor 
is then multiplied by the weighting for that factor to determine the 
weighted score. For example, if the technical factor has a weighting of 
60 percent and the numerical score for that factor is 80, the weighted 
technical score is 48 (80x60 percent). The weighted scores for each 
evaluation factor are then added to determine the total award fee score.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 63 FR 13134, Mar. 18, 1998]



1816.405-276   Award fee payments and limitations.

    (a) Interim award fee payments. The amount of an interim award fee 
payment (see 1816.405-273(b)) is limited to the lesser of the interim 
evaluation score or 80 percent of the fee allocated to that interim 
period less any provisional payments (see paragraph (b) of this 
subsection) made during the period.
    (b) Provisional award fee payments. Provisional award fee payments 
are payments made within evaluation periods prior to an interim or final 
evaluation for that period. Provisional payments may be included in the 
contract and should be negotiated on a case-by-case basis. For a service 
contract, the total amount of award fee available in an evaluation 
period that may be provisionally paid is the lesser of a percentage 
stipulated in the contract (but not exceeding 80 percent) or the prior 
period's evaluation score. For an end item contract, the total amount of 
provisional payments in a period is limited to a percentage not to 
exceed 80 percent of the prior interim period's evaluation score.
    (c) Fee payment. The Fee Determination Official's rating for both 
interim and final evaluations will be provided to the contractor within 
45 calendar days of the end of the period being evaluated. Any fee, 
interim or final, due the contractor will be paid no later than 60 
calendar days after the end of the period being evaluated.

[63 FR 13134, Mar. 18, 1998]



1816.406  Contract clauses.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



1816.406-70  NASA contract clauses.

    (a) As authorized by FAR 16.406(e), the contracting officer shall 
insert the

[[Page 255]]

clause at 1852.216-76, Award Fee for Service Contracts, in solicitations 
and contracts when an award fee contract is contemplated and the 
contract deliverable is the performance of a service.
    (b) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-77, Award Fee for End Item Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverables are hardware or other end items for which 
total contractor performance cannot be measured until the end of the 
contract. When the clause is used in a fixed-price award fee contract, 
it shall be modified by deleting references to base fee in paragraphs 
(a), and by deleting paragraph (c)(1), the last sentence of (c)(4), and 
the first sentence of (c)(5).
    (c) The contracting officer may insert a clause substantially as 
stated at 1852.216-83, Fixed Price Incentive, in fixed-price-incentive 
solicitations and contracts utilizing firm or successive targets. For 
items subject to incentive price revision, identify the target cost, 
target profit, target price, and ceiling price for each item.
    (d) The contracting officer shall insert the clause at 1852.216-84, 
Estimated Cost and Incentive Fee, in cost-plus-incentive-fee 
solicitations and contracts.
    (e) The contracting officer may insert the clause at 1852.216-85, 
Estimated Cost and Award Fee, in cost an award fee solicitations and 
contracts. When the contract includes performance incentives, use 
Alternate I. When the clause is used in a fixed-price award fee 
contract, it shall be modified to delete references to base fee and to 
reflect the contract type.
    (f) As provided at 1816.402-270, the contracting officer shall 
insert a clause substantially as stated at 1852.216-88, Performance 
Incentive, when the primary deliverable(s) is (are) hardware and total 
estimated cost and fee is greater than $25 million. A clause 
substantially as stated at 1852.216-88 may be included in lower dollar 
value hardware contracts with the approval of the procurement officer.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 62 FR 58687, Oct. 30, 1997; 63 FR 13134, Mar. 18, 
1998]



              Subpart 1816.5--Indefinite-Delivery Contracts



1816.504  Indefinite quantity contracts. (NASA supplements paragraph (a))

    (a)(4)(ii) ID/IQ service contract values and task order values shall 
be expressed only in dollars.
    (a)(4)(v) See 1815.7003.

[62 FR 3478, Jan. 23, 1997, as amended at 65 FR 38777, June 22, 2000]



1816.505  Ordering. (NASA supplements paragraphs (a) and (b))

    (a)(2) Task and delivery orders shall be issued by the contracting 
officer.
    (b)(5) The Agency and installation ombudsmen designated in 
accordance with 1815.7001 shall review complaints from contractors on 
task order contracts and delivery order contracts.

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 51079, Sept. 21, 1999; 
65 FR 38777, June 22, 2000; 65 FR 46628, July 31, 2000]



1816.505-70  Task ordering.

    (a) The contracting officer shall, to the maximum extent possible, 
state task order requirements in terms of functions and the related 
performance and quality standards such that the standards may be 
objectively measured.
    (b) To the maximum extent possible, contracting officers shall 
solicit contractor task plans to use as the basis for finalizing task 
order requirements and enable evaluation and pricing of the contractor's 
proposed work on a performance based approach as described in 1816.104-
70(a).
    (c) Task order contract type shall be individually determined, based 
on the nature of each task order's requirements.
    (1) Task orders may be grouped by contract type for administrative 
convenience (e.g., all CPIF orders, all FFP

[[Page 256]]

orders, etc.) for contractor progress and cost reporting.
    (2) Under multiple awards, solicitations for individual task plans 
shall request the same pricing structure from all offerors.
    (d) Any undefinitized task order issued under paragraph (f) of the 
clause at 1852.216-80, Task Ordering Procedure, shall be treated and 
reported as an undefinitized contract action in accordance with 1843-70.

[62 FR 3478, Jan. 23, 1997, as amended at 65 FR 46628, July 31, 2000]



1816.506-70  NASA contract clause.

    Insert the clause at 1852.216-80, Task Ordering Procedure, in 
solicitations and contracts when an indefinite-delivery, task order 
contract is contemplated. The clause is applicable to both fixed-price 
and cost-reimbursement type contracts. If the contract does not require 
533M reporting (See NPG 9501.2, NASA Contractor Financial Management 
Reporting System), use the clause with its Alternate I.

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 51079, Sept. 21, 1999]



  Subpart 1816.6--Time-and-Materials, Labor-Hour, and Letter Contracts



1816.603  Letter contracts.



1816.603-2  Application.

    (a) Centers must ensure that NASA liabilities and commitments are 
minimized under letter contracts. When a letter contract is justified 
and program requirements can be severed into smaller, discreet efforts, 
the work authorized by the letter contract must be limited to the 
minimum severable effort required to satisfy the urgent program 
requirements. The remaining requirements may not be initially included 
in the letter contract and must be acquired through a separate fully 
priced and definitized contract action.

[66 FR 53547, Oct. 23, 2001]



1816.603-370  Approvals.

    (a)(1) The approval authority to issue a letter contract is--
    (i) The Assistant Administrator for Procurement when the estimated 
value of the definitized contract is equal to or greater than the Master 
Buy Plan (MBP) submission threshold of 1807.7101;
    (ii) The procurement officer when the estimated value of the 
definitized contract is below the MBP submission threshold; and
    (iii) The Assistant Administrator for Procurement for any 
modification of an undefinitized letter contract approved by the 
procurement officer that increases the estimated value of the 
definitized contract to an amount equal to or above the MBP submission 
threshold. This approval must be obtained prior to issuing the 
modification.
    (2) The procurement officer must sign all requests for approval by 
the Assistant Administrator for Procurement and submit them to Code HS.
    (b) All requests for authority to issue a letter contract must 
include the following:
    (1) Contractor name and address.
    (2) Place of performance.
    (3) Contract number, including modification number, if applicable.
    (4) Brief description of the work or services to be performed.
    (5) Performance period or delivery schedule for both the letter 
contract and definitized contract.
    (6) Estimated value of the work authorized by the letter contract.
    (7) Estimated value of the definitized contract.
    (8) Contract type of the definitized contract.
    (9) A statement that the definitized contract will contain all 
required clauses or identification of approved specific clause 
deviations.
    (10) Complete justification of the necessity for the letter 
contract, including the advantages to the Government and a description 
of the efforts to avoid its issuance or to minimize its scope.
    (11) The definitization schedule described in FAR 16.603-2(c) 
expected to be negotiated with the contractor.

[67 FR 30603, May 7, 2002]

[[Page 257]]



PART 1817--SPECIAL CONTRACTING METHODS--Table of Contents




                  Subpart 1817.1--Multiyear Contracting

Sec.
1817.105 Policy.
1817.105-1 Uses.

                         Subpart 1817.2--Options

1817.200 Scope of subpart.
1817.203 Solicitations.
1817.204 Contracts.
1817.206 Evaluation.
1817.207 Exercise of options.
1817.208 Solicitation provisions and contract clauses.

               Subpart 1817.4--Leader Company Contracting

1817.401 General.

     Subpart 1817.5--Interagency Acquisitions Under the Economy Act

1817.500 Scope of subpart.

         Subpart 1817.70--Acquisitions With Military Departments

1817.7000 Scope of subpart.
1817.7001 Authorization and policy.
1817.7002 NASA-Defense Purchase Request and acceptance.
1817.7002-1 Acceptance by Military Department.
1817.7002-2 Changes in estimated total prices.
1817.7002-3 Payments.
1817.7002-4 Contract clause.

         Subpart 1817.71--Exchange or Sale of Personal Property

1817.7101 Policy.

                Subpart 1817.72--Interagency Transactions

1817.7201 Policy.
1817.7202 Determinations and findings requirements.
1817.7203 Ordering procedures.

                  Subpart 1817.730--Phased Acquisition

1817.7300 Definitions.
1817.7301 Down-selctions in phased acquisitions.
1817.7301-1 Pre-solicitation planning.
1817.7301-2 Evaluation factors.
1817.7301-3 Down-selection milestones.
1817.7301-4 Synopsis.
1817.7301-5 Progressive competition.
1817.7302 Contract clauses.

    Authority: 42 U.S.C. 2473(c)(1)

    Source: 61 FR 55753, Oct. 29, 1996, unless otherwise noted.



                  Subpart 1817.1--Multiyear Contracting



1817.105  Policy.



1817.105-1  Uses. (NASA supplements paragraph (b))

    (b) The Assistant Administrator for Procurement (Code HS) is the 
approval authority for the use of the multiyear contracting technique. 
Requests for approval shall be signed by the procurement officer and 
shall include a description of the acquisition, identification of 
anticipated contract costs and funding, and a determination, with 
supporting rationale, that each of the criteria in FAR 17.105-1(b) (1) 
through (5) is met by the proposed use of multiyear contracting.



                         Subpart 1817.2--Options



1817.200  Scope of subpart.

    FAR subpart 17.2 applies to all NASA contracts.



1817.203  Solicitations. (NASA supplements paragraph (g))

    (g)(2) The procurement officer is authorized to approve option 
quantities greater than 50 percent.



1817.204  Contracts. (NASA supplements paragraph (e))

    (e)(i) The 5-year limitation (basic plus option periods) does not 
apply when the time needed to complete system development or hardware 
production is greater than five years.
    (ii) Requests for deviations from the 5-year limitation policy shall 
be sent to the Assistant Administrator for Procurement (Code HS) and 
shall include justification for exceeding five years and evidence that 
the extended years can be reasonably priced.



1817.206  Evaluation. (NASA supplements paragraph (b))

    (b)(i) The procurement officer is the approval authority for 
determinations by the contracting officer not to evaluate offers for any 
option quantities or periods.

[[Page 258]]

    (ii) Unless a determination has been approved under 1817.206(b)(i), 
the selection statement for each acquisition involving an option shall 
address the source selection authority's consideration of the option as 
part of the initial competition.



1817.207  Exercise of options. (NASA supplements paragraph (f))

    (f) Options under cost type contracts shall contain an estimated 
cost for the option period(s).
    (f)(2) Use of the provision (or formula) for determining the price 
of a fixed price option requires advance approval by the Assistant 
Administrator for Procurement (Code HS).
    (f)(3)(ii) Use of a formula to determine the fee of an option in a 
cost-type contract requires advance approval of the Assistant 
Administrator for Procurement (Code HS). The formula shall preclude the 
contractor from increasing costs for the purpose of earning additional 
fee.



1817.208  Solicitation provisions and contract clauses. (NASA supplements paragraph (c))

    (c)(3) The contracting officer shall insert a provision 
substantially the same as FAR 52.217-5 in cost reimbursement contracts 
when the other conditions of FAR 17.208(c) are met.



               Subpart 1817.4--Leader Company Contracting



1817.401  General.

    It is NASA policy not to use the leader company contracting 
technique.



     Subpart 1817.5--Interagency Acquisitions Under the Economy Act



1817.500  Scope of subpart.

    (b) See 1817.72.

[68 FR 13634, Mar. 20, 2003]



         Subpart 1817.70--Acquisitions With Military Departments



1817.7000  Scope of subpart.

    This subpart contains policies and procedures, developed jointly by 
NASA and DOD, for acquisition of supplies or services by NASA from or 
through the Military Departments.



1817.7001  Authorization and policy.

    (a) NASA is authorized by the National Aeronautics and Space Act of 
1958 (42 U.S.C. 2451 et seq.) to use the acquisition services, 
personnel, equipment, and facilities of the Military Departments, with 
their consent and with or without reimbursement, and, on a similar 
basis, to cooperate with the Military Departments in the use of 
acquisition services, equipment, and facilities.
    (b) The Military Departments have agreed to cooperate fully with 
NASA in making their acquisition services, equipment, personnel, and 
facilities available on the basis of mutual agreement.
    (c) The Military Departments have agreed not to claim reimbursement 
for administrative costs incident to acquisitions for NASA, except as 
may be otherwise agreed before the services are performed.
    (d) When procuring supplies or services for NASA or performing field 
service functions in support of NASA contracts, the Military Departments 
have agreed to use their own methods, except when otherwise required by 
the terms of the agreement involved.
    (e) The Military Departments normally will use their own funds when 
procuring supplies o