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  <AMDDATE>September 26, 2005</AMDDATE>
  <FMTR>
    <TITLEPG>
      <CODE>CODE OF FEDERAL REGULATIONS</CODE>
      <PRTPAGE P="1"/>
      <TITLENUM>48</TITLENUM>
      <PARTS>Chapters 3 to 6</PARTS>
      <REVISED>Revised as of October 1, 2005</REVISED>
      <SUBJECT>Federal Acquisition Regulations System</SUBJECT>
      <CONTAINS>Containing a codification of documents of general applicability and future effect</CONTAINS>
      <DATE>As of October 1, 2005</DATE>
      <ANCIL>With Ancillaries</ANCIL>
      <PUB>
        <P>Published by</P>
        <P>Office of the Federal Register</P>
        <P>National Archives and Records</P>
        <P>Administration</P>
      </PUB>
      <SPECED>A Special Edition of the Federal Register</SPECED>
    </TITLEPG>
    <BTITLE>
      <PRTPAGE P="?ii"/>
      <HD SOURCE="HED">U.S. GOVERNMENT OFFICIAL EDITION NOTICE</HD>
      <HD SOURCE="HED">Legal Status and Use of Seals and Logos</HD>
      <GPH DEEP="54" HTYPE="LEFT" SPAN="1">
        <GID>e:\seals\archives.ai</GID>
      </GPH>
      <P>The seal of the National Archives and Records Administration (NARA) authenticates the Code of Federal Regulations (CFR) as the official codification of Federal regulations established under the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of the Federal Register, shall be judicially noticed. The CFR is prima facie evidence of the original documents published in the Federal Register (44 U.S.C. 1510).</P>
      <P>It is prohibited to use NARA's official seal and the stylized Code of Federal Regulations logo on any republication of this material without the express, written permission of the Archivist of the United States or the Archivist's designee. Any person using NARA's official seals and logos in a manner inconsistent with the provisions of 36 CFR part 1200 is subject to the penalties specified in 18 U.S.C. 506, 701, and 1017.</P>
      <HD SOURCE="HED">Use of ISBN Prefix</HD>
      <P>This is the Official U.S. Government edition of this publication and is herein identified to certify its authenticity. Use of the 0-16 ISBN prefix is for U.S. Government Printing Office Official Editions only. The Superintendent of Documents of the U.S. Government Printing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.</P>
      <GPO/>
      <GPH DEEP="18" HTYPE="LEFT" SPAN="1">
        <GID>e:\seals\gpologo.eps</GID>
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      <P>U . S . G O V E R N M E N T P R I N T I N G O F F I C E</P>
      <P>U.S. Superintendent of Documents • Washington, DC 20402-0001</P>
      <P>http://bookstore.gpo.gov</P>
      <P>Phone: toll-free (866) 512-1800; DC area (202) 512-1800</P>
    </BTITLE>
    <TOC>
      <PRTPAGE P="iii"/>
      <HD SOURCE="HED">Table of Contents</HD>
      <PGHD>Page</PGHD>
      <EXPL>
        <SUBJECT>Explanation</SUBJECT>
        <PG>v</PG>
      </EXPL>
      <TITLENO>
        <HD SOURCE="HED">Title 48:</HD>
        <CHAPTI>
          <SUBJECT>Chapter 3—Health and Human Services</SUBJECT>
          <PG>3</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 4—Department of Agriculture</SUBJECT>
          <PG>93</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 5—General Services Administration</SUBJECT>
          <PG>157</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 6—Department of State</SUBJECT>
          <PG>297</PG>
        </CHAPTI>
      </TITLENO>
      <FAIDS>
        <HD SOURCE="HED">Finding Aids:</HD>
        <SUBJECT>Table of CFR Titles and Chapters</SUBJECT>
        <PG>381</PG>
        <SUBJECT>Alphabetical List of Agencies Appearing in the CFR</SUBJECT>
        <PG>399</PG>
        <SUBJECT>List of CFR Sections Affected</SUBJECT>
        <PG>409</PG>
      </FAIDS>
    </TOC>
    <CITE>
      <PRTPAGE P="iv"/>
      <P>Cite this Code:<E T="01">CFR</E>
      </P>

      <CITEP>To cite the regulations in this volume use title, part and section number. Thus, <E T="01">48 CFR 301.101</E> refers to title 48, part 301, section 101.</CITEP>
    </CITE>
    <EXPLA>
      <PRTPAGE P="v"/>
      <HD SOURCE="HED">Explanation</HD>
      <P>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.</P>
      <P>Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:</P>
      <IPAR>
        <P SOURCE="P1">Title 1 through Title 16</P>
        <STUB>as of January 1</STUB>
        <P SOURCE="P1">Title 17 through Title 27</P>
        <STUB>as of April 1</STUB>
        <P SOURCE="P1">Title 28 through Title 41</P>
        <STUB>as of July 1</STUB>
        <P SOURCE="P1">Title 42 through Title 50</P>
        <STUB>as of October 1</STUB>
      </IPAR>
      <P>The appropriate revision date is printed on the cover of each volume.</P>
      <SIDEHED>
        <HD SOURCE="HED">LEGAL STATUS</HD>
        <P>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).</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">HOW TO USE THE CODE OF FEDERAL REGULATIONS</HD>
        <P>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.</P>
        <P>To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2005), 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.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">EFFECTIVE AND EXPIRATION DATES</HD>
        <P>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.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OMB CONTROL NUMBERS</HD>

        <P>The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. <PRTPAGE P="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.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OBSOLETE PROVISIONS</HD>
        <P>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.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">CFR INDEXES AND TABULAR GUIDES</HD>

        <P>A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR <E T="04">Index and Finding Aids.</E> 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.</P>
        <P>An index to the text of “Title 3—The President” is carried within that volume.</P>
        <P>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.</P>
        <P>A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">REPUBLICATION OF MATERIAL</HD>
        <P>There are no restrictions on the republication of textual material appearing in the Code of Federal Regulations.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">INQUIRIES</HD>
        <P>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.</P>

        <P>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, <E T="03">fedreg.info@nara.gov.</E>
        </P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">SALES</HD>
        <P>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.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">ELECTRONIC SERVICES</HD>

        <P>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 <E T="03">www.gpoaccess.gov/nara</E> (“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, <E T="03">gpoaccess@gpo.gov.</E>
          <PRTPAGE P="vii"/>
        </P>

        <P>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 <E T="03">www.archives.gov/federal_register.</E> The NARA site also contains links to GPO Access.</P>
      </SIDEHED>
      <SIG>
        <NAME>Raymond A. Mosley,</NAME>
        <POSITION>Director,</POSITION>
        <OFFICE>Office of the Federal Register.</OFFICE>
      </SIG>
      <DATE>October 1, 2005.</DATE>
    </EXPLA>
    <THISTITL>
      <PRTPAGE P="ix"/>
      <HD SOURCE="HED">THIS TITLE</HD>
      <P>Title 48—<E T="04">Federal Acquisition Regulations System</E> is composed of seven 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, 2005.</P>

      <P>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 <E T="03">implementing</E> 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 <E T="03">supplementing</E> the Federal acquisition regulations.</P>
      <P>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).</P>
      <P>The first volume, containing chapter 1 (parts 1 to 51), includes an index to the Federal acquisition regulations.</P>
      <P>For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.</P>
    </THISTITL>
  </FMTR>
  <TITLE>
    <LRH>48 CFR Ch. 3 (10-1-05 Edition)</LRH>
    <RRH>Health and Human Services</RRH>
    <CFRTITLE>
      <TITLEHD>
        <PRTPAGE P="1"/>
        <HD SOURCE="HED">Title 48—Federal Acquisition Regulations System</HD>
        <P>(This book contains chapters 3 to 6)</P>
      </TITLEHD>
      <CFRTOC>
        <PTHD>Part</PTHD>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 3</E>—Health and Human Services</SUBJECT>
          <PG>301</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 4</E>—Department of Agriculture</SUBJECT>
          <PG>401</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 5</E>—General Services Administration</SUBJECT>
          <PG>501</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 6</E>—Department of State</SUBJECT>
          <PG>601</PG>
        </CHAPTI>
      </CFRTOC>
    </CFRTITLE>
    <CHAPTER>
      <TOC>
        <TOCHD>
          <PRTPAGE P="3"/>
          <HD SOURCE="HED">CHAPTER 3—HEALTH AND HUMAN SERVICES</HD>
          <P>(Parts 300 to 399)</P>
        </TOCHD>
        <EDNOTE>
          <HD SOURCE="HED">Editorial Note:</HD>
          <P>Nomenclature changes to chapter 3 appear at 70 FR 39, Jan. 3, 2005.</P>
        </EDNOTE>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>301</PT>
          <SUBJECT>HHS Acquisition Regulation System</SUBJECT>
          <PG>5</PG>
          <PT>302</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>8</PG>
          <PT>303</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>10</PG>
          <PT>304</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>11</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>305</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>15</PG>
          <PT>306</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>15</PG>
          <PT>307</PT>
          <SUBJECT>Acquisition planning</SUBJECT>
          <PG>17</PG>
          <PT>309</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>26</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>313</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>30</PG>
          <PT>314</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>30</PG>
          <PT>315</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>31</PG>
          <PT>316</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>48</PG>
          <PT>317</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>50</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>319</PT>
          <SUBJECT>Small business programs</SUBJECT>
          <PG>52</PG>
          <PT>323</PT>
          <SUBJECT>Environment, conservation, occupational safety, and drug-free workplace</SUBJECT>
          <PG>53</PG>
          <PT>324</PT>
          <SUBJECT>Protection of privacy and freedom of information</SUBJECT>
          <PG>54</PG>
          <PT>325</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>56</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>328</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>58</PG>
          <PT>330</PT>
          <SUBJECT>Cost accounting standards</SUBJECT>
          <PG>58</PG>
          <PT>332</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>58<PRTPAGE P="4"/>
          </PG>
          <PT>333</PT>
          <SUBJECT>Protests, disputes, and appeals</SUBJECT>
          <PG>61</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>334</PT>
          <SUBJECT>Major system acquisition</SUBJECT>
          <PG>66</PG>
          <PT>335</PT>
          <SUBJECT>Research and development contracting</SUBJECT>
          <PG>66</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>342</PT>
          <SUBJECT>Contract administration</SUBJECT>
          <PG>68</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>352</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>73</PG>
          <PT>353</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>85</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER T—HHS SUPPLEMENTATIONS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>370</PT>
          <SUBJECT>Special programs affecting acquisition</SUBJECT>
          <PG>86</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="5"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 301</EAR>
          <HD SOURCE="HED">PART 301—HHS ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 301.1—Purpose, Authority, Issuance</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>301.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>301.103</SECTNO>
              <SUBJECT>Authority</SUBJECT>
              <SECTNO>301.106</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 301.2—Administration</HD>
              <SECTNO>301.270</SECTNO>
              <SUBJECT>Executive Committee for Acquisition.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 301.4—Deviations from the FAR</HD>
              <SECTNO>301.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>301.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <SECTNO>301.470</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 301.6—Career Development, Contracting Authority, and Responsibilities</HD>
              <SECTNO>301.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
              <SECTNO>301.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <SECTNO>301.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
              <SECTNO>301.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>301.603-2</SECTNO>
              <SUBJECT>Selection.</SUBJECT>
              <SECTNO>301.603-3</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <SECTNO>301.603-4</SECTNO>
              <SUBJECT>Termination.</SUBJECT>
              <SECTNO>301.603-70</SECTNO>
              <SUBJECT>Delegation of contracting officer responsibilities.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4220, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 301.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>301.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) The Department of Health and Human Services Acquisition Regulation (HHSAR) is issued to establish uniform acquisition policies and procedures for the Department of Health and Human Services (HHS) which conform to the Federal Acquisition Regulation (FAR) System.</P>
              <P>(b) The HHSAR implements and supplements the FAR. (Implementing material expands upon or indicates the manner of compliance with related FAR material. Supplementing material is new material which has no counterpart in the FAR.)</P>
              <P>(c) The HHSAR contains all formal departmental policies and procedures that govern the acquisition process or otherwise control contracting relationships between the Department's contracting offices and contractors.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>(b) The HHSAR is prescribed by the Assistant Secretary for Administration and Management under the authority of 5 U.S.C. 301 and section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 486(c)), as delegated by the Secretary.</P>
              <P>(c) The HHSAR is issued in the Code of Federal Regulations (CFR) as Chapter 3 of Title 48, Department of Health and Human Services Acquisition Regulation. It may be referenced as “48 CFR Chapter 3.”</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.106</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
              <P>(a) The following OMB control numbers apply to the information collection and recordkeeping requirements contained in this chapter:</P>
              <GPOTABLE CDEF="s50,10" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">HHSAR segment</CHED>
                  <CHED H="1">OMB control No.</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">315.4</ENT>
                  <ENT>0990-0139</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">324.70</ENT>
                  <ENT>0990-0136</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">342.7101</ENT>
                  <ENT>0990-0131</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.224-70</ENT>
                  <ENT>0990-0137</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.224-70</ENT>
                  <ENT>0990-0136</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.233-70</ENT>
                  <ENT>0990-0133</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.270-1</ENT>
                  <ENT>0990-0129</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.270-2</ENT>
                  <ENT>0990-0129</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.270-3</ENT>
                  <ENT>0990-0129</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.270-5</ENT>
                  <ENT>0990-0130</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.270-8</ENT>
                  <ENT>0990-0128</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">352.270-9</ENT>
                  <ENT>0990-0128</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">370.1</ENT>
                  <ENT>0990-0129</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">370.2</ENT>
                  <ENT>0990-0129</ENT>
                </ROW>
              </GPOTABLE>

              <P>(b) The OMB control number “OMB No. 0990-0115” is to be included in the upper right corner of the first page of all solicitations, purchase orders, and contracts issued by departmental contracting activities. The number represents approval of the HHS acquisition process and covers recordkeeping and reporting requirements which are unique to individual acquisitions (e.g., <PRTPAGE P="6"/>requirements contained in specifications, statements of work, etc.).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 301.2—Administration</HD>
            <SECTION>
              <SECTNO>301.270</SECTNO>
              <SUBJECT>Executive Committee for Acquisition.</SUBJECT>
              <P>(a) The Director, Office of Acquisition Management and Policy has established the Executive Committee for Acquisition (ECA) to assist and facilitate the planning and development of departmental acquisition policies and procedures and to assist in responding to other agencies and organizations concerning policies and procedures impacting the Federal acquisition process.</P>
              <P>(b) The ECA consists of members and alternates from the Office of Acquisition Management, Agency for Healthcare Research and Quality, Centers for Medicare &amp; Medicaid Services, Program Support Center, Centers for Disease Control and Prevention, Food and Drug Administration, Health Resources and Services Administration, Indian Health Service, National Institutes of Health, and Substance Abuse and Mental Health Services Administration. The ECA is chaired by the Director, Office of Acquisition Management. All meetings will be held at the call of the Chair, and all activities will be carried out under the direction of the Chair.</P>
              <P>(c) The ECA, to facilitate the planning, development, and coordination of governmentwide and departmentwide acquisition policies and procedures, is to:</P>
              <P>(1) Advise and assist the Chair concerning major acquisition policy matters;</P>
              <P>(2) Review and appraise, at appropriate intervals, the overall effectiveness of existing policies and procedures; and</P>
              <P>(3) Review and appraise the impact of new major acquisition policies, procedures, regulations, and development on current acquisition policies and procedures.</P>
              <P>(d) The Chair will periodically issue a list of current members and alternates specifying the name, title, organization, address, and telephone number of each. The member organizations are responsible for apprising the Chair whenever a new member or alternate is to be appointed to the ECA, or an organizational change retitles the individual or organization.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 301.4—Deviations From the FAR</HD>
            <SECTION>
              <SECTNO>301.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <P>Requests for individual deviations to either the FAR or HHSAR shall be prepared in accordance with 301.470 and forwarded through administrative channels to the Director, Office of Acquisition Management for review and approval.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>Requests for class deviations to either the FAR or HHSAR shall be prepared in accordance with 301.470 and forwarded through administrative channels to the Director, Office of Acquisition Management and Policy for review and approval.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.470</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <P>(a) When a contracting office determines that a deviation is needed, it shall prepare a deviation request in memorandum form and forward it through administrative channels to the official designated in 301.403 or 301.404. In an exigency situation, the contracting office may request a deviation verbally, through normal acquisition channels, but is required to confirm the request in writing as soon as possible.</P>
              <P>(b) A deviation request shall clearly and precisely set forth the:</P>
              <P>(1) Nature of the needed deviation;</P>
              <P>(2) Identification of the FAR or HHSAR citation from which the deviation is needed;</P>
              <P>(3) Circumstances under which the deviation would be used;</P>
              <P>(4) Intended effect of the deviation;</P>
              <P>(5) Period or applicability;</P>
              <P>(6) Reasons which will contribute to complete understanding and support of the requested deviation. A copy of pertinent background papers such as a contractor's request should accompany the deviation request.; and</P>
              <P>(7) Suggested wording for the deviation (if applicable).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="7"/>
            <HD SOURCE="HED">Subpart 301.6—Career Development, Contracting Authority, and Responsibilities</HD>
            <SECTION>
              <SECTNO>301.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>301.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <P>(b) <E T="03">Policy.</E> (1) The Government is not bound by agreements or contractual commitments made to prospective contractors by persons to whom contracting authority has not been delegated. However, execution of otherwise proper contracts made by individuals without contracting authority, or by contracting officers in excess of the limits of their delegated authority, may be later ratified. The ratification must be in the form of a written document clearly stating that ratification of a previously unauthorized act is intended and must be signed by the head of the contracting activity (HCA).</P>
              <P>(2) The HCA is the official authorized to ratify an unauthorized commitment (but see paragraph (b)(3) of this section).</P>
              <P>(3) Ratification authority for actions up to $25,000 may be redelegated by the HCA to the chief of the contracting office (CCO). No other redelegations are authorized.</P>
              <P>(c) <E T="03">Limitations.</E> (5) The concurrence of legal counsel concerning the payment issue is optional.</P>
              <P>(e) <E T="03">Procedures.</E> (1) The individual who made the unauthorized contractual commitment shall furnish the reviewing contracting officer all records and documents concerning the commitment and a complete written statement of facts, including, but not limited to: a statement as to why the contracting office was not used, a statement as to why the proposed contractor was selected, a list of other sources considered, a description of work to be performed or products to be furnished, the estimated or agreed contract price, a citation of the appropriation available, and a statement whether the contractor has commenced performance.</P>
              <P>(2) The contracting officer will review the submitted material, and prepare the ratification document if he/she determines that the commitment may be ratifiable. The contracting officer shall forward the ratification document and the submitted material to the HCA or CCO with any comments or information which should be considered in evaluation of the request for ratification. If legal review is desirable, the HCA or CCO will coordinate the request for ratification with the Office of General Counsel, Business and Administrative Law Division.</P>
              <P>(3) If ratification is authorized by the HCA or CCO, the file will be returned, along with the ratification document, to the contracting officer for issuance of a purchase order or contract, as appropriate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>301.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The appointment and termination of appointment of contracting officers shall be made by the head of the contracting activity (HCA). This authority is not delegable.</P>
              <P>(b) The contracting officer appointment document for personnel in the GS-1101, 1102, and 1105 series, as well as personnel in any other series who will obligate the Government to the expenditure of funds in excess of the micro-purchase threshold, shall be the Standard Form (SF)—1402, Certificate of Appointment. The HCA may determine an alternative appointment document for appointments at or below that threshold. Changes to appointments shall be made by issuing a new appointment document. Each appointment document shall be prepared and maintained in accordance with FAR 1.603-1 and shall state the limits of the individual's authority.</P>

              <P>(c) An individual must be certified at the appropriate level under the HHS Acquisition Certification Program as a prerequisite to being appointed as a contracting officer with authority to obligate funds in excess of the micro-purchase threshold (see 301.603-3(a)). The HCA will determine and require appropriate training for individuals appointed as contracting officers at lower dollar levels. An individual shall be appointed as a contracting officer only in instances where a valid organizational need can be demonstrated. Factors to be considered in assessing the need for <PRTPAGE P="8"/>an appointment of a contracting officer include volume of actions, complexity of work, and structure of the organization.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.603-2</SECTNO>
              <SUBJECT>Selection.</SUBJECT>
              <P>Nominations for appointment of contracting officers shall be submitted to the HCA through appropriate organizational channels for review. The nomination package, which is usually initiated by the prospective contracting officer's immediate supervisor, shall normally include the nominee's current personal qualifications statement or job history, including the information required by FAR 1.603-2, a copy of his/her most recent performance appraisal, and a copy of the certificate issued under the HHS Acquisition Certification Program indicating the nominee's current certification level, if applicable. The HCA will determine the documentation required, consistent with FAR 1.603-2, when the resulting appointment and authority will not exceed the micro-purchase threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.603-3</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <P>(a) Contracting officer appointments shall be made at levels commensurate with nominees' certification levels as follows:</P>
              <P>(1) Level I—Purchasing Agent—Required for all personnel in the GS-1102 and 1105 series having signature authority for simplified acquisitions, including orders from GSA sources over the micro-purchase threshold.</P>
              <P>(2) Level II—Acquisition Official—Required for all personnel in the GS-1102 series. Sufficient for delegation of contracting officer authority up to $500,000.</P>
              <P>(3) Level III—Senior Acquisition Official—Required for all personnel in the GS-1102 series for delegation of contracting officer authority above $500,000.</P>
              <P>(4) Level IV—Acquisition Manager—Required for delegation of pre-award review and approval authority as specified in subpart 304.71.</P>
              <P>(b) If it is essential to appoint an individual who does not fully meet the certification requirements of this section for the contracting officer authority sought, an interim appointment may be granted by the HCA. Interim appointments may not exceed one (1) year in total, and shall not be granted unless the individual can meet the certification requirements within one year from the date of appointment. If the certification requirements are not met by that date, the appointment will automatically terminate and cannot be renewed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.603-4</SECTNO>
              <SUBJECT>Termination.</SUBJECT>
              <P>Termination of contracting officer appointments shall be accomplished in accordance with FAR 1.603-4.</P>
            </SECTION>
            <SECTION>
              <SECTNO>301.603-70</SECTNO>
              <SUBJECT>Delegation of contracting officer responsibilities.</SUBJECT>
              <P>(a) Contracting officer responsibilities which do not involve the obligation (or deobligation) of funds or result in establishing or modifying contractual provisions may be delegated by the contracting officer by means of a written memorandum which clearly delineates the delegation and its limits.</P>
              <P>(b) Contracting officers may designate individuals as ordering officials to make purchases or place orders under blanket purchase agreements, indefinite delivery contracts, or other pre-established mechanisms. Ordering officials, including those under NIH's DELPRO, are not contracting officers.</P>
              <P>(c) Project officers are required to complete the training specified in 307.170, while ordering officials and others should receive sufficient instruction from the contracting officer to ensure the appropriate exercise of the responsibilities and knowledge of their limitations.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 302</EAR>
          <HD SOURCE="HED">PART 302—DEFINITIONS OF WORDS AND TERMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 302.1—Definitions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>302.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 302.2—Definitions Clause</HD>
              <SECTNO>302.201</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4222, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="9"/>
            <HD SOURCE="HED">Subpart 302.1—Definitions</HD>
            <SECTION>
              <SECTNO>302.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Chief of the contracting office</E> (CCO) is a mid-level management official in charge of a contracting office who controls and oversees the daily contracting operation of an Operating Division (OPDIV) or major component of an OPDIV. The CCO is subordinate to the head of the contracting activity, and is located at a management level above other contracting personnel, usually as a branch chief or division director.</P>
              <P>
                <E T="03">Head of the agency</E> or <E T="03">agency head,</E> unless otherwise specified, means the head of the Operating Division (OPDIV) for AHRQ, CMS, PSC, CDCP, FDA, HRSA, IHS, NIH, and SAMHSA, or the Assistant Secretary for Administration and Management (ASAM) for the Office of the Secretary (OS).</P>
              <P>
                <E T="03">Head of the Contracting Activity</E> (HCA) is defined in terms of certain organizational positions within the Office of Grants and Acquisition Management (OGAM), Agency for Healthcare Research and Quality (AHRQ), Centers for Medicare &amp; Medicaid Services (CMS), Program Support Center (PSC), Centers for Disease Control and Prevention (CDCP), Food and Drug Administration (FDA), Health Resources and Services Administration (HRSA), Indian Health Service (IHS), National Institutes of Health (NIH), and Substance Abuse and Metal Health Services Administration (SAMHSA), as follows:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">
                  <E T="03">OGAM-OS</E>—Director, Office of Acquisition Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">ACF</E>—Director, Division of Acquisition Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">AHRQ</E>—Director, Division of Contracts Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">CMS</E>—Director, Acquisition and Grants Group</FP>
                <FP SOURCE="FP-1">
                  <E T="03">PSC</E>—Director, Division of Acquisition Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">CDCP</E>—Director, Procurement and Grants Office</FP>
                <FP SOURCE="FP-1">
                  <E T="03">FDA</E>—Director, Office of Acquisitions &amp; Grant Services</FP>
                <FP SOURCE="FP-1">
                  <E T="03">HRSA</E>—Director, Division of Grants and Procurement Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">IHS</E>—Director, Division of Acquisitions and Grants Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">NIH</E>—Director, Office of Acquisition Management and Policy</FP>
                <FP SOURCE="FP-1">
                  <E T="03">SAMHSA</E>—Director, Division of Contracts Management</FP>
              </EXTRACT>
              
              <P>In addition, the Director, Office of Acquisition Management and Policy (Director, OAMP) is designated as an HCA. Each HCA is responsible for conducting an effective and efficient acquisition program. Adequate controls shall be established to assure compliance with applicable laws, regulations, procedures, and the dictates of good management practices. Periodic reviews shall be conducted and evaluated by qualified personnel, preferably assigned to positions other than in the contracting office being reviewed, to determine the extent of adherence to prescribed policies and regulations, and to detect a need for guidance and/or training. The HCA shall be certified, or be certifiable, at Level IV of the HHS Acquisition Certification Program. Individuals appointed as HCA's who do not meet the Level IV requirements shall have one year from the date of appointment to obtain Level IV certification. The heads of contracting activities may redelegate their HCA authorities to the extent that redelegation is not prohibited by the terms of their respective delegations of authority, by law, by the Federal Acquisition Regulation, by the HHS Acquisition Regulation, or by other regulations. However, HCA and other contracting approvals and authorities shall not be redelegated below the levels specified in the HHS Acquisition Regulation or, in the absence of coverage in the HHS Acquisition Regulation, the Federal Acquisition Regulation. To ensure proper control of redelegated acquisition authorities, HCA's shall maintain a file containing successive delegations of HCA authority through and including the contracting officer level. Personnel delegated responsibility for acquisition functions must possess a level of experience, training, and ability commensurate with the complexity and magnitude of the acquisition actions involved.</P>
              <CITA>[66 FR 4222, Jan. 17, 2001, as amended at 70 FR 39, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 302.2—Definitions Clause</HD>
            <SECTION>
              <SECTNO>302.201</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>

              <P>The FAR clause, Definitions, at 52.202-1 shall be used as prescribed in FAR 2.201, except as follows:<PRTPAGE P="10"/>
              </P>
              <P>(a) Paragraph (a) at 352.202-1 shall be used in place of paragraph (a) of the FAR clause.</P>
              <P>(b) Paragraph (h), or its alternate, at 352.202-1 shall be added to the end of the FAR clause. Use paragraph (h) when a fixed-priced contract is anticipated; use the alternate to paragraph (h) when a cost-reimbursement contract is anticipated. This is an authorized deviation.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 303</EAR>
          <HD SOURCE="HED">PART 303—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 303.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>303.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
              <SECTNO>303.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <SECTNO>303.104-7</SECTNO>
              <SUBJECT>Violations or possible violations of the Procurement Integrity Act.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 303.2—Contract Gratuities to Government Personnel</HD>
              <SECTNO>303.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 303.3—Reports of Suspected Antitrust Violations</HD>
              <SECTNO>303.303</SECTNO>
              <SUBJECT>Reporting suspected antitrust violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 303.4—Contingent Fees</HD>
              <SECTNO>303.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 303.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
              <SECTNO>303.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 303.7—Voiding and Rescinding Contracts</HD>
              <SECTNO>303.704</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4223, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 303.1—Safeguards</HD>
            <SECTION>
              <SECTNO>303.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>303.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <P>The Department of Health and Human Services' Standards of Conduct are prescribed in 45 CFR part 73.</P>
            </SECTION>
            <SECTION>
              <SECTNO>303.104-7</SECTNO>
              <SUBJECT>Violations or possible violations of the Procurement Integrity Act.</SUBJECT>
              <P>(a)(1) The contracting officer's determination that a reported violation or possible violation of the statutory prohibitions has no impact on the impending award or selection of a contractor must be submitted through appropriate channels, along with supporting documentation, to the Head of Contracting Activity (HCA) for review and approval of the determination awarding a contract.</P>
              <P>(2) The contracting officer's determination that a reported violation or possible violation of the statutory prohibitions has an impact on the pending award or selection of a contractor must be referred through channels, along with all related information available, to the HCA (if the HCA is an SES) or to another SES official designated by the OpDiv. That individual will—</P>
              <P>(i) Refer the matter immediately to the Office of Acquisition Management and Policy (OAMP), Assistant Secretary for Administration and Management, Office of the Secretary for review, which may consult with the Office of General Counsel (OGC) and the Office of Inspector General (OIG), as appropriate; and</P>
              <P>(ii) Determine the action to be taken on the procurement in accordance with FAR 3.104-7(c) and (d). The HCA shall obtain the approval or concurrence of the OAMP before proceeding with the action.</P>
              <P>(b) The individual in paragraph (a)(2) of this section acts as the agency head designee with respect to actions taken under the FAR clause 52.203-10, Price or Fee Adjustment for Illegal or Improper Authority.</P>
              <CITA>[70 FR 39, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 303.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>303.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>

              <P>Departmental personnel shall report suspected violations of the Gratuities clause in accordance with subpart M, Reporting Violations, of 45 CFR part <PRTPAGE P="11"/>73. Refer to subpart B, Gifts from Outside Sources, (5 CFR 2635.201) for an explanation regarding what is prohibited and what is permitted.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 303.3—Reports of Suspected Antitrust Violations</HD>
            <SECTION>
              <SECTNO>303.303</SECTNO>
              <SUBJECT>Reporting suspected antitrust violations.</SUBJECT>
              <P>A copy of each report of suspected antitrust violations submitted to the Attorney General by the HCA shall also be submitted to the Director, Office of Acquisition Management.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 303.4—Contingent Fees</HD>
            <SECTION>
              <SECTNO>303.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
              <P>(c) Reports shall be made promptly to the contracting officer.</P>
              <P>(d)(4) Suspected fraudulent or criminal matters to be reported to the Department of Justice shall be prepared in letter format and forwarded through acquisition channels to the head of the contracting activity for signature. The letter must contain all pertinent facts and background information considered by the contracting officer and chief of the contracting office that led to the decision that fraudulent or criminal matters may be present. A copy of the signed letter shall be sent to the Director, Office of Acquisition Management.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 303.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
            <SECTION>
              <SECTNO>303.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>Approval of an exception to the policy stated in FAR 3.601 shall be made by the HCA (not delegable).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 303.7—Voiding and Rescinding Contracts</HD>
            <SECTION>
              <SECTNO>303.704</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>For purposes of implementing FAR subpart 3.7, the authorities granted to the “agency head or designee” shall be exercised by the HCA (not delegable).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 304</EAR>
          <HD SOURCE="HED">PART 304—ADMINISTRATIVE MATTERS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 304.6—Contract Reporting</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>304.602</SECTNO>
              <SUBJECT>Federal Procurement Data System (FPDS).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 304.8—Government Contract Files</HD>
              <SECTNO>304.804-70</SECTNO>
              <SUBJECT>Contract closeout audits.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 304.70—Acquisition Instrument Identification Numbering System</HD>
              <SECTNO>304.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>304.7001</SECTNO>
              <SUBJECT>Numbering acquisitions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 304.71—Review and Approval of Proposed Contract Awards</HD>
              <SECTNO>304.7100</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>304.7101</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4224, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 304.6—Contracting Reporting</HD>
            <SECTION>
              <SECTNO>304.602</SECTNO>
              <SUBJECT>Federal Procurement Data System (FPDS).</SUBJECT>
              <P>The Departmental Contracts Information System (DCIS) represents the Department's implementation of the FPDS. All departmental contracting activities are required to participate in the DCIS and follow the procedures stated in the Enhanced Departmental Contracts Information System Manual and amendments to it. The HCA (not delegable) shall ensure that all required contract information is collected, submitted, and received into the DCIS on or before the 15th of each month for all appropriate contract and contract modifications award of the prior month.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 304.8—Government Contract Files</HD>
            <SECTION>
              <SECTNO>304.804-70</SECTNO>
              <SUBJECT>Contract closeout audits.</SUBJECT>

              <P>(a) Contracting officers shall rely, to the maximum extent possible, on non-Federal single audits to close physically completed cost-reimbursement contracts with colleges and universities, hospitals, non-profit firms, and <PRTPAGE P="12"/>State and local governments. In addition, where appropriate, a sample of these contractors may be selected for audit, in accordance with the decision-making process set forth in the following paragraph (b).</P>
              <P>(b) Contracting officers shall request contract closeout audits on physically completed, cost-reimbursement, for-profit contracts in accordance with the following:</P>
              <P>(1) Decisions on: The need for and allocation of contract audit resources and services; the selection of contracts or contractors to be audited; the identification of the audit agency to perform the audit; and the type or scope of closeout audit to be conducted, shall be made by the Office of Inspector General (OIG) and Office of Grants and Acquisition Management, in consultation with the Department's Contract Audit Users Work Group. These decisions shall be based upon the needs of the customer, risk analysis, return on investment, and the availability of audit resources. When an audit is warranted prior to closing a contract, the contracting officer shall submit the audit request to the OIG's Office of Audit via the appropriate OPDIV representative on the Contract Audit Users Work Group.</P>

              <P>(2) Except where a contracting officer suspects misrepresentation or fraud, contract closeout field audits shall not be requested if the cost of performance is likely to exceed the potential cost recovery. Contracts that are not selected for a field audit may be closed on the basis of a desk review, subject to any later on-site audit findings. The release executed by the contractor shall contain the following statement:
              </P>
              <EXTRACT>
                <P>The Contractor agrees, pursuant to the clause in this contract entitled “Allowable Cost” or “Allowable Cost and Fixed Fee” (as appropriate), that the amount of any sustained audit exceptions resulting from any audit made after final payment shall be refunded to the Government.”</P>
              </EXTRACT>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 304.70—Acquisition Instrument Identification Numbering System</HD>
            <SECTION>
              <SECTNO>304.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes policy and procedures for assigning identifying numbers to contracts and related instruments, including solicitation documents, purchase orders, and delivery orders. The HCA (not delegable) is responsible for establishing the numbering system within the OPDIV.</P>
            </SECTION>
            <SECTION>
              <SECTNO>304.7001</SECTNO>
              <SUBJECT>Numbering acquisitions.</SUBJECT>
              <P>(a) <E T="03">Acquisitions which require numbering.</E> The following acquisitions shall be numbered in accordance with the system prescribed in paragraphs (b), (c), and (d) of this section:</P>
              <P>(1) Contracts, including letter contracts and task orders under basic ordering agreements, which involve the payment of $2,500 or more for the acquisition of personal property or nonpersonal services. (The number assigned to a letter contract shall be assigned to the superseding definitized contract).</P>
              <P>(2) Contracts which involve the payment of $2,000 or more for construction (including renovation or alteration).</P>
              <P>(3) Contracts which involve more than one payment regardless of amount.</P>
              <P>(4) Requests for proposals and invitations for bids.</P>
              <P>(5) Requests for quotations.</P>
              <P>(6) Basic ordering agreements.</P>
              <P>(b) <E T="03">Numbering system for contracts.</E> All contracts which require numbering (paragraphs (a)(1) through (3) of this section) shall be assigned a number consisting of the following:</P>
              <P>(1) The three digit identification code of the Department (HHS);</P>

              <P>(2) A one digit alphabetic identification code of the servicing agency:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">OOffice of the Secretary</FP>
                <FP SOURCE="FP-1">PProgram Support Center</FP>
                <FP SOURCE="FP-1">MCenters for Medicare &amp; Medicaid Services</FP>
                <FP SOURCE="FP-1">FFood and Drug Administration</FP>
                <FP SOURCE="FP-1">DCenters for Disease Control and Prevention</FP>
                <FP SOURCE="FP-1">IIndian Health Service</FP>
                <FP SOURCE="FP-1">SSubstance Abuse and Mental Health Administration</FP>
                <FP SOURCE="FP-1">NNational Institutes of Health</FP>
                <FP SOURCE="FP-1">HHealth Resources and Services Administration</FP>
                <FP SOURCE="FP-1">AAgency for Health Care Research &amp; Quality</FP>
              </EXTRACT>
              

              <P>(3) The three digit numeric identification code assigned by the Office of Acquisition Management and Policy <PRTPAGE P="13"/>(OAMP) to the contracting office within the servicing agency;</P>
              <P>(4) A four digit fiscal year designation (e.g., 2005, 2006);</P>
              <P>(5) A five digit alphanumeric tracking number the content of which is determined by the contracting office within the servicing agency; and</P>

              <P>(6) A one digit code describing the type of contract action:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">CNew Definitive Contract</FP>
                <FP SOURCE="FP-1">PPurchase Using Simplified Acquisition</FP>
                <FP SOURCE="FP-1">IIndefinite Delivery Contract (IDIQ)</FP>
                <FP SOURCE="FP-1">OBasic Ordering Agreement (BOA)</FP>
                <FP SOURCE="FP-1">BBlanket Purchase Agreement (BPA)</FP>
                <FP SOURCE="FP-1">FFacilities Contract</FP>
                <FP SOURCE="FP-1">UContracts placed with or through other Government departments, GSA contracts, or against mandatory source contracts such as the National Industries for the Blind (NIB), the National Industries for the Severely Handicapped (NISH), and the Federal Prison Industries (UNICOR)</FP>
                <FP SOURCE="FP-1">LLease Agreement</FP>
                <FP SOURCE="FP-1">WGovernment-wide Acquisition Contract (GWAC)</FP>
                <FP SOURCE="FP-1">ELetter Contract</FP>
                <FP SOURCE="FP-1">GFederal Supply Schedule</FP>
                <FP SOURCE="FP-1">MMicropurchase</FP>
              </EXTRACT>
              
              <P>For example, the first contract for NIH, National Cancer Institute, for fiscal year 2005 may be numbered HHSN261200500001C.</P>
              <P>(c) <E T="03">Numbering system for orders</E>. Order numbers will be assigned to contracts with orders. The order number shall be up to a seventeen digit number consisting of the following:</P>
              <P>(1) The three digit identification code of the Department (HHS);</P>

              <P>(2) A one digit numeric identification code of the servicing agency:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">OOffice of the Secretary</FP>
                <FP SOURCE="FP-1">PProgram Support Center</FP>
                <FP SOURCE="FP-1">MCenters for Medicare &amp; Medicaid Services</FP>
                <FP SOURCE="FP-1">FFood and Drug Administration</FP>
                <FP SOURCE="FP-1">DCenters for Disease Control and Prevention</FP>
                <FP SOURCE="FP-1">IIndian Health Service</FP>
                <FP SOURCE="FP-1">SSubstance Abuse and Mental Health Administration</FP>
                <FP SOURCE="FP-1">NNational Institutes of Health</FP>
                <FP SOURCE="FP-1">HHealth Resources and Services Administration</FP>
                <FP SOURCE="FP-1">AAgency for Health Care Research and Quality;</FP>
              </EXTRACT>
              
              <P>(3) The three digit numeric identification code assigned by the Office of Acquisition Management and Policy (OAMP) to the contracting office within the servicing agency;</P>
              <P>(4) An alphanumeric tracking number, up to ten characters, the content of which is determined by the contracting office within the servicing agency.</P>
              <P>(d) <E T="03">Numbering system for other acquisitions.</E> The HCA is responsible for developing a numbering system for the acquisitions other than contracts listed in paragraphs, (a)(4) through (a)(6) of this section, and any other types of acquisitions that may be used.</P>
              <P>(e) <E T="03">Assignment of identification codes.</E> Each contracting office of the Department shall be assigned a three digit identification code by the OGAM. Requests for the assignment of codes for newly established contracting offices shall be submitted by the headquarters acquisition staff office of the contracting activity to the OGAM. A listing of the contracting office identification codes currently in use is contained in the Enhanced Departmental Contracts Information System Manual.</P>
              <CITA>[66 FR 4224, Jan. 17, 2001, as amended at 70 FR 39, Jan. 3, 2005; 70 FR 11583, Mar. 9, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 304.71—Review and Approval of Proposed Contract Awards</HD>
            <SECTION>
              <SECTNO>304.7100</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>This subpart requires each HCA (not delegable) to establish review and approval procedures for proposed contracts actions to ensure that:</P>
              <P>(a) Contract awards are in conformance with law, established policies and procedures, and sound business practices;</P>
              <P>(b) Contractual documents properly reflect the mutual understanding of the parties; and</P>
              <P>(c) The contracting officer is informed of deficiencies and items of questionable acceptability, and corrective action is taken.</P>
            </SECTION>
            <SECTION>
              <SECTNO>304.7101</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) All contractual documents, regardless of dollar value, are to be reviewed by the contracting officer prior to award.</P>

              <P>(b) The HCA is responsible for establishing review and approval procedures <PRTPAGE P="14"/>and designating acquisition officials to serve as reviewers. Each HCA is responsible for determining the criterion (criteria) to be used in determining which contracts are to be reviewed, and that a sampling of proposed contracts not included in the “to be reviewed” group are reviewed and approved.</P>
              <P>(c) Officials assigned responsibility for review and approval of contract actions must possess qualifications in the field of acquisition commensurate with the level of review performed, and, at a minimum, possess those acquisition skills expected of a contracting officer. However, if any official is to serve as the contracting officer and sign the contractual document, the review and approval function shall be performed by an appropriate official at least one level above.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="15"/>
        <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 305</EAR>
          <HD SOURCE="HED">PART 305—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 305.2—Synopsis of Proposed Contract Actions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>305.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 305.3—Synopsis of Contract Awards</HD>
              <SECTNO>305.303</SECTNO>
              <SUBJECT>Announcement of contract awards.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 305.5—Paid Advertisements</HD>
              <SECTNO>305.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4225, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 305.2—Synopsis of Proposed Contract Actions</HD>
            <SECTION>
              <SECTNO>305.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>(b) When a contracting office believes that it has a situation where advance notice is not appropriate or reasonable, it shall prepare a memorandum citing all pertinent facts and details and send it, through normal acquisition channels, to the Director, Office of Acquisition Management and Policy (Director, OAMP) requesting relief from synopsizing. The Director, OAMP shall review the request and decide whether an exception to synopsizing is appropriate or reasonable. If it is, the Director, OAMP shall take the necessary coordinating actions required by FAR 5.202 (b). Whatever the decision is on the request, the Director, OAMP shall promptly notify the contracting office when a determination has been made.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 305.3—Synopses of Contract Awards</HD>
            <SECTION>
              <SECTNO>305.303</SECTNO>
              <SUBJECT>Announcement of contract awards.</SUBJECT>
              <P>(a) <E T="03">Public announcement.</E> Any contract, contract modification, or delivery order in the amount of $3 million or more shall be reported by the contracting officer to the Office of the Deputy Assistant Secretary for Legislation (Congressional Liaison), Room 406G, Hubert H. Humphrey Building. Notification shall be accomplished by providing a copy of the contract or award document face page to the referenced office prior to the day of award, or in sufficient time to allow for an announcement to be made by 5 p.m. Washington, DC time on the day of award.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 305.5—Paid Advertisements</HD>
            <SECTION>
              <SECTNO>305.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>The contracting officer is authorized to publish advertisements, notices, and notices that proposals are being sought in newspapers and periodicals in accordance with the requirements and conditions referenced in FAR subpart 5.5.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 306</EAR>
          <HD SOURCE="HED">PART 306—COMPETITION REQUIREMENTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 306.2—Full and Open Competition After Exclusion of Sources</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>306.202</SECTNO>
              <SUBJECT>Establishing or maintaining alternative sources.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 306.3—Other Than Full and Open Competition</HD>
              <SECTNO>306.302</SECTNO>
              <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT>
              <SECTNO>306.302-1</SECTNO>
              <SUBJECT>Only one responsible source and no other supplies or services will satisfy agency requirements.</SUBJECT>
              <SECTNO>306.302-7</SECTNO>
              <SUBJECT>Public interest.</SUBJECT>
              <SECTNO>306.303</SECTNO>
              <SUBJECT>Justification.</SUBJECT>
              <SECTNO>306.303-1</SECTNO>
              <SUBJECT>Requirements</SUBJECT>
              <SECTNO>306.303-2</SECTNO>
              <SUBJECT>Content.</SUBJECT>
              <SECTNO>306.304</SECTNO>
              <SUBJECT>Approval of the justification.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 306.5—Competition Advocates</HD>
              <SECTNO>306.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4225, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="16"/>
            <HD SOURCE="HED">Subpart 306.2—Full and Open Competition After Exclusion of Sources</HD>
            <SECTION>
              <SECTNO>306.202</SECTNO>
              <SUBJECT>Establishing or maintaining alternative sources.</SUBJECT>
              <P>(a) The reference to the agency head in FAR 6.202 (a) shall mean the appropriate competition advocate cited in 306.501.</P>
              <P>(b)(1) The required determination and findings (D&amp;F) shall be prepared by the contracting officer based on the data provided by program personnel, and shall be signed by the appropriate competition advocate. The D&amp;F signatory is not delegable.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 306.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>306.302</SECTNO>
              <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>306.302-1</SECTNO>
              <SUBJECT>Only one responsible source and no other supplies or services will satisfy agency requirements.</SUBJECT>
              <P>(a) (2) (ii) Follow-on contracts for the continuation of major research and development studies on long-term social and health programs, major research studies, or clinical trials may be deemed to be available only from the original source when it is likely that award to any other source would result in unacceptable delays in fulfilling the Department's or OPDIV's requirements.</P>
              <P>(b) <E T="03">Application.</E> (4) When the head of the program office has determined that a specific item of technical equipment or parts must be obtained to meet the activity's program responsibility to test and evaluate certain kinds and types of products, and only one source is available. (This criterion is limited to testing and evaluation purposes only and may not be used for initial outfitting or repetitive acquisitions. Project officers should support the use of this criterion with citations from their agency's legislation and the technical rationale for the item of equipment required.)</P>
            </SECTION>
            <SECTION>
              <SECTNO>306.302-7</SECTNO>
              <SUBJECT>Public interest.</SUBJECT>
              <P>(a) <E T="03">Authority.</E> (2) Agency head, in this instance, means the Secretary.</P>
              <P>(c) <E T="03">Limitations.</E> An “approval package” must be prepared by the contracting officer and staffed through departmental acquisition channels to the Secretary. The package shall include a determination and findings for the Secretary to sign that contains all pertinent information to support justification for exercising the exemption to competition, and a letter for the Secretary to sign notifying Congress of the determination to award a contract under the authority of 41 U.S.C. 253(c)(7).</P>
            </SECTION>
            <SECTION>
              <SECTNO>306.303</SECTNO>
              <SUBJECT>Justifications.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>306.303-1</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <P>(b) Preliminary arrangements or agreements with the proposed contractor shall have no effect on the rationale used to support an acquisition for other than full and open competition.</P>
              <P>(f) When a program office desires to obtain certain goods or services by contract without full and open competition, it shall, at the time of forwarding the requisition or request for contract, furnish the contracting office a justification explaining why full and open competition is not feasible. All justifications shall be initially reviewed by the contracting officer.</P>
              <P>(1) Justifications in excess of the simplified acquisition threshold shall be in the form of a separate, self-contained document, prepared in accordance with FAR 6.303 and 306.303, and called a “JOFOC” (Justification for Other Than Full and Open Competition). Justifications at or below the simplified acquisition threshold may be in the form of a paragraph or paragraphs contained in the requisition or request for contract.</P>
              <P>(2) Justifications, whether over or under the simplified acquisition threshold, shall fully describe what is to be acquired, offer reasons which go beyond inconvenience, and explain why it is not feasible to obtain competition. The justifications shall be supported by verifiable facts rather than mere opinions. Documentation in the justification should be sufficient to permit an individual with technical competence in the area to follow the rationale.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="17"/>
              <SECTNO>306.303-2</SECTNO>
              <SUBJECT>Content.</SUBJECT>
              <P>(a)(1) The program office and name, address, and telephone number of the project officer shall also be included.</P>
              <P>(2) This item shall include project identification such as the authorizing program legislation, to include citations or other internal program identification data such as title, contract number, etc.</P>
              <P>(3) The description may be in the form of a statement of work, purchase description, or specification. A statement is to be included to explain whether the acquisition is an entity in itself, whether it is one in a series, or part of a related group of acquisitions.</P>
              <P>(c) Each JOFOC shall conclude with at least signature lines for the project officer, project officer's immediate supervisor, contracting officer, and approving official.</P>
            </SECTION>
            <SECTION>
              <SECTNO>306.304</SECTNO>
              <SUBJECT>Approval of the justification.</SUBJECT>
              <P>(a)(2) The competition advocates are listed in 306.501. This authority is not delegable.</P>
              <P>(3) The competition advocate shall exercise this approval authority, except where the individual designated as the competition advocate does not meet the requirements of FAR 6.304 (a)(3)(ii). This authority is not delegable.</P>
              <P>(4) The senior procurement executive of the Department is the Assistant Secretary for Administration and Management.</P>
              <P>(c) A class justification shall be processed the same as an individual justification.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 306.5—Competition Advocates</HD>
            <SECTION>
              <SECTNO>306.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>

              <P>The Department's competition advocate is the Director, Office of Acquisition Management and Policy. The competition advocates for the Department's primary contracting officers are as follows:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">
                  <E T="03">ACF</E>—Director, Office of Management Services</FP>
                <FP SOURCE="FP-1">
                  <E T="03">CMS</E>—Chief Operating Officer</FP>
                <FP SOURCE="FP-1">
                  <E T="03">OS</E>—Director, Office of Acquisition Management and Policy</FP>
                <FP SOURCE="FP-1">
                  <E T="03">PSC</E>—Director, Administrative Operations Service</FP>
                <FP SOURCE="FP-1">
                  <E T="03">AHRQ</E>—Executive Officer</FP>
                <FP SOURCE="FP-1">
                  <E T="03">CDCP</E>—Director, Office of Program Support</FP>
                <FP SOURCE="FP-1">
                  <E T="03">FDA</E>—Chief, Office of Shared Services</FP>
                <FP SOURCE="FP-1">
                  <E T="03">HRSA</E>—Associate Administrator for Operations and Management</FP>
                <FP SOURCE="FP-1">
                  <E T="03">IHS</E>—Director, Office of Management and Support</FP>
                <FP SOURCE="FP-1">
                  <E T="03">NIH</E>—Senior Advisor for Policy, Office of Extramural Research (R&amp;D) and Senior Advisor to the Deputy Director for Intramural Research (Other than R&amp;D)</FP>
                <FP SOURCE="FP-1">
                  <E T="03">SAMHSA</E>—Associate Administrator for Management</FP>
              </EXTRACT>
              <CITA>[66 FR 4225, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 307</EAR>
          <HD SOURCE="HED">PART 307—ACQUISITION PLANNING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 307.1—Acquisition Plans</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>307.104</SECTNO>
              <SUBJECT>General procedures.</SUBJECT>
              <SECTNO>307.105</SECTNO>
              <SUBJECT>Contents of written acquisition plans.</SUBJECT>
              <SECTNO>307.170</SECTNO>
              <SUBJECT>Program training requirements.</SUBJECT>
              <SECTNO>307.170-1</SECTNO>
              <SUBJECT>Policy exceptions.</SUBJECT>
              <SECTNO>307.170-2</SECTNO>
              <SUBJECT>Training course prerequisites.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 307.3—Contractor Versus Government Performance</HD>
              <SECTNO>307.302</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>307.303</SECTNO>
              <SUBJECT>Determining availability of private commercial sources.</SUBJECT>
              <SECTNO>307.304</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>307.307</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 307.70—Considerations in Selecting an Award Instrument</HD>
              <SECTNO>307.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>307.7001</SECTNO>
              <SUBJECT>Distinction between acquisition and assistance.</SUBJECT>
              <SECTNO>307.7002</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 307.71—Requests for Contract</HD>
              <SECTNO>307.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>307.7101</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>307.7102</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>307.7103</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>307.7104</SECTNO>
              <SUBJECT>Transmittal.</SUBJECT>
              <SECTNO>307.7105</SECTNO>
              <SUBJECT>Format and content.</SUBJECT>
              <SECTNO>307.7106</SECTNO>
              <SUBJECT>Statement of work.</SUBJECT>
              <SECTNO>307.7107</SECTNO>
              <SUBJECT>Review.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4226, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="18"/>
            <HD SOURCE="HED">Subpart 307.1—Acquisition Planning</HD>
            <SECTION>
              <SECTNO>307.104</SECTNO>
              <SUBJECT>General procedures.</SUBJECT>
              <P>(d) Each contracting activity shall prepare an Annual Acquisition Plan (AAP). The AAP is a macro plan, containing a list of anticipated contract actions over the simplified acquisition threshold and their associated funding, as well as the aggregate planned dollars for simplified acquisitions by quarter, developed for each fiscal year. The AAP shall conform to reasonable budget expectations and shall be reviewed at least quarterly and modified as appropriate. The chief of the contracting office (CCO) shall obtain this information from the program planning/budget office of the contracting activity and use the AAP to provide necessary reports and monitor the workload of the contracting office. For contract actions, the plan shall contain, at a minimum:</P>
              <P>(1) A brief description (descriptive title, perhaps one or two sentences if necessary);</P>
              <P>(2) Estimated award amount;</P>
              <P>(3) Requested award date;</P>
              <P>(4) Name and phone number of contact person (usually the project officer);</P>
              <P>(5) Other information required for OPDIV needs.</P>
              <P>(e) Once the AAP is obtained, the contracting officer/contract specialist shall initiate discussions with the assigned project officer for each planned negotiated acquisition over $100,000 except for:</P>
              <P>(1) Acquisitions made under interagency agreements, and</P>
              <P>(2) Contract modifications which exercise options, make changes authorized by the Changes clause, or add funds to an incrementally funded contract. (The HCA may prescribe procedures for contract actions not covered by this subpart.)</P>
              <P>(f) The purpose of the discussions between the contracting and project officers is to develop an individual acquisition planning schedule and to address the things that will need to be covered in the request for contract (RFC), including clearances, acquisition strategy, sources, etc. The project officer must either have a statement of work (SOW) ready at this time or must discuss in more detail the nature of the services/supplies that will be required.</P>
              <P>(g) Standard lead-times for processing various types of acquisitions and deadlines for submission of acceptable RFCs (that is, RFCs which include all required elements such as clearances, funding documents, and an acceptable SOW) for award in a given fiscal year shall be established by the HCA or designee not lower than the CCO.</P>
              <P>(h) The outcome of the discussions referenced in paragraph (f) of this section between the project officer and the contracting officer/contracting specialist will be an agreement concerning the dates of significant transaction-specific acquisition milestones, including the date of submission of the RFC to the contracting officer. This milestone schedule document will be prepared with those dates and will be signed by the project officer and the contracting officer. The milestones cannot be revised except by mutual agreement of these same individuals. If the planning schedule indicates the need to obtain approval of a Justification for Other than Full and Open Competition, the CCO must sign the milestone agreement. This document shall be retained in the contract file. All other considerations that will affect the acquisition (technical, business, management) shall be addressed in the RFC (see 307.71).</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.105</SECTNO>
              <SUBJECT>Contents of written acquisition plans.</SUBJECT>
              <P>The written acquisition plan required by FAR 7.105 must be contained in the request for contract, as specified in subpart 307.71, and is the final product of the planning process.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.170</SECTNO>
              <SUBJECT>Program training requirements.</SUBJECT>
              <P>(i) All program personnel selected to serve as project officers for HHS contracts shall have successfully completed either the Department's appropriate “Basic Project Officer” course, or an equivalent course (see paragraph (c) of this section).</P>

              <P>(b) At least fifty percent of the HHS program personnel performing the function of technical proposal evaluator on a technical evaluation team <PRTPAGE P="19"/>or panel for any competitively solicited HHS contract shall have successfully completed the appropriate “Basic Project Officer” course, or an equivalent course (see paragraph (c) of this section). This requirement applies to the initial technical proposal evaluation and any subsequent technical evaluations that may be required.</P>
              <P>(c) Determination of course equivalency shall be made by the HCA (not delegable) of the cognizant contracting activity. The contracting officer is responsible for ensuring that the project officer and technical proposal evaluators have successfully completed the required training discussed in 307.170-2.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.170-1</SECTNO>
              <SUBJECT>Policy exceptions.</SUBJECT>
              <P>In the event there is an urgent requirement for a specific individual to serve as a project officer and that individual has not successfully completed the prerequisite training course, the HCA (not delegable) may waive the training requirement and authorize the individual to perform the project duties, provided that:</P>
              <P>(a) The individual first meets with the cognizant contracting officer to review the DHHS Project Officers' Contracting Handbook,” and to discuss the important aspects of the contracting—program office relationship as appropriate to the circumstances; and</P>
              <P>(b) The individual attends the next scheduled and appropriate “Basic Project Officer” course.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.170-2</SECTNO>
              <SUBJECT>Training course prerequisites.</SUBJECT>
              <P>(a) <E T="03">Project officers.</E> (1) Newly appointed project officers, and project officers with less than three years experience and no previous related training, are required to take the appropriate “Basic Project Officer” course. (The grade level for project officers attending the course should be GS-7 and above.) All project officers are encouraged to take the appropriate “Writing Statements of Work” course.</P>
              <P>(2) Project officers with more than three years experience, and project officers with less than three years experience who have successfully completed the appropriate basic course, are qualified (and encouraged) to take the “Advanced Project Officer” course.</P>
              <P>(3) Project Officers on HHS projects for which HHS or OMB requires an Exhibit 300 [under OMB Circular A-11, part 7] must successfully complete either HHS” “Early Warning Project Management System Workshop” or an equivalent Earned Value Management course (see paragraph 307.170(c)).</P>
              <P>(4) Additional information on prerequisites for attendance of these courses may be found in the “DHHS Acquisition Training and Certification Program Handbook.”</P>
              <P>(b) <E T="03">Technical proposal evaluators.</E> Technical proposal evaluators, regardless of experience, are required to take the appropriate “Basic Project Officer” course or its equivalent. Upon successful completion of the basic course, it is recommended that they take the appropriate “Advanced Project Officer” course. Peer and objective reviewers are excluded from these requirements.</P>
              <CITA>[66 FR 4226, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 307.3—Contractor Versus Government Performance</HD>
            <SECTION>
              <SECTNO>307.302</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) General Administration Manual (GAM) Chapter 18-10, Commercial-Industrial Activities of the Department of Health and Human Services Providing Products or Services for Government Use, assigns responsibilities for making method-of-performance decisions (contract vs. in-house performance) to various management levels within the Department depending on the dollar amount of capital investment or annual operating costs. It also requires that each operating division (OPDIV) and staff division (STAFFDIV) designate a “Commercial-Industrial Control Officer” (CICO) to be responsible for ensuring compliance with the requirements of the Chapter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.303</SECTNO>
              <SUBJECT>Determining availability of private commercial sources.</SUBJECT>

              <P>In accordance with the provisions of GAM Chapter 18-10, OPDIVs and STAFFDIVs must prepare and maintain a complete inventory of all individual commercial or industrial activities. They must also conduct periodic reviews of each activity and contract <PRTPAGE P="20"/>in the inventory to determine if the existing performance, in-house or by contract, continues to be in accordance with the policy guidelines of GAM Chapter 18-10.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.304</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>Contracting officers shall ensure that no acquisition action involving a commercial-industrial activity is initiated unless it is in compliance with the requirements of GAM Chapter 18-10. The contracting officer must check each request for contract expected to result in a contract in excess of $100,000 to ensure that it contains a statement as to whether the proposed contract is or is not subject to review under GAM Chapter 18-10 requirements. If the contracting officer has any questions regarding the determination of applicability or nonapplicability, or if the required statement is missing, the program office submitting the request for contract should be contacted and the situation rectified. If the issue cannot be resolved with the program office, the contracting office shall refer the matter to the CICO for a final determination. The HCA is responsible for ensuring that contracting activities are in full compliance with FAR Subpart 7.3.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.307</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <P>The review and appeals procedure discussed in FAR 7.307 are addressed in GAM Chapter 18-10.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 307.70—Considerations in Selecting an Award Instrument</HD>
            <SECTION>
              <SECTNO>307.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart provides guidance on the appropriate selection of award instruments consistent with 31 U.S.C. 6301-6308. This subpart explains the use of the contract as the award instrument for acquisition relationships, and the grant or cooperative agreement as the instrument for assistance relationships. This subpart provides guidance for determining whether to use the acquisition or assistance process to fulfill program needs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7001</SECTNO>
              <SUBJECT>Distinction between acquisition and assistance.</SUBJECT>
              <P>(a) 31 U.S.C. 6301-6308 requires the use of contracts to acquire property or services for the direct benefit or use of the Government and grants or cooperative agreements to transfer money, property, services, or anything of value to recipients to accomplish a public purpose of support or stimulation authorized by Federal statute.</P>
              <P>(b) A contract is to be used as the legal instrument to reflect a relationship between the Federal Government and a recipient whenever:</P>

              <P>(1) The principal purpose of the instrument is the acquisition, by purchase, lease, or barter, of property or services for the direct benefit or use of the Federal Government; <E T="03">or</E>
              </P>
              <P>(2) The Department determines in a specific instance that the use of a type of contract is appropriate. That is, it is determined in a certain situation that specific needs can be satisfied best by using the acquisition process. However, this authority does not permit circumventing the criteria for use of acquisition or assistance instruments. Use of this authority is restricted to extraordinary circumstances and only with the prior approval of the Director, Office of Acquisition Management and Policy (Director, OAMP).</P>
              <P>(c) A grant or cooperative agreement is to be used as the legal instrument to reflect a relationship between the Federal Government and a recipient whenever the principal purpose of the relationship is the transfer of money, property, services, or anything of value to the recipient to accomplish a public purpose of support or stimulation authorized by Federal statute.</P>
              <P>(1) A grant is the legal instrument to be used when no substantial involvement is anticipated between the Department and the recipient during performance of the contemplated activity.</P>
              <P>(2) A cooperative agreement is the legal instrument to be used when substantial involvement is anticipated between the Department and the recipient during performance of the contemplated activity.</P>

              <P>(d) As a general rule, contracts are to be used for the following purposes:<PRTPAGE P="21"/>
              </P>
              <P>(1) Evaluation (including research of an evaluative nature) of the performance of Government programs or projects or grantee activity initiated by the funding agency for its direct benefit or use.</P>
              <P>(2) Technical assistance rendered to the Government, or on behalf of the Government, to any third party, including those receiving grants or cooperative agreements.</P>
              <P>(3) Surveys, studies, and research which provide specific information desired by the Government for its direct activities, or for dissemination to the public.</P>
              <P>(4) Consulting services or professional services of all kinds if provided to the Government or, on behalf of the Government, to any third party.</P>
              <P>(5) Training projects where the Government selects the individuals or specific groups whose members are to be trained or specifies the content of the curriculum (not applicable to fellowship awards.)</P>
              <P>(6) Planning for Government use.</P>
              <P>(7) Production of publications or audiovisual materials required primarily for the conduct of the direct operations of the Government.</P>
              <P>(8) Design or development of items for Government use or pursuant to agency definition or specifications.</P>
              <P>(9) Conferences conducted on behalf of the Government.</P>
              <P>(10) Generation of management information or other data for Government use.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7002</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) OPDIV program officials should use existing budget and program planning procedures to propose new activities and major changes in ongoing programs. It is the responsibility of these program officials to meet with the HCA and the principal grants management official, or their designees, to distinguish the relationships and determine whether award is to be made through the acquisition process or assistance process. This determination should be made prior to the time when the annual acquisition plan is reviewed and approved so that the plan will reflect all known proposed contract actions. The cognizant contracting officer will confirm the appropriateness of the use of the contract instrument when reviewing the request for contract.</P>
              <P>(b) Shifts from one award instrument to another must be fully documented in the appropriate files to show a fundamental change in program purpose that unequivocally justifies the rationale for the shift.</P>
              <P>(c) OPDIVs must ensure that the choice of instrument is determined in accordance with 31 U.S.C. 6301-6308 and applicable departmental policies. If, however, there are major individual transactions or programs which contain elements of both acquisition and assistance in such a way that they cannot be characterized as having a principal purpose of one or the other, guidance should be obtained from the Director, OAMP, through normal channels, before proceeding with a determination.</P>
              <P>(d) Any public notice, program announcement, solicitation, or request for applications or proposals must indicate whether the intended relationship will be one of acquisition or assistance and specify the award instrument to be used.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 307.71—Requests for Contract</HD>
            <SECTION>
              <SECTNO>307.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes the format and contents of the request for contract (RFC) and provides procedures for its preparation and submission.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7101</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The program office's preparation of the RFC and submission to the contracting office completes the presolicitation phase of the acquisition planning process and commences the solicitation phase. The RFC is the formal document which initiates the preparation of the solicitation by the contracting office and sets the acquisition process in motion. It is the result of the planning by the project officer and contracting officer and contains much of the pertinent information necessary for the development of a sound, comprehensive solicitation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7102</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>

              <P>The program office should submit the RFC to the contracting office no later <PRTPAGE P="22"/>than the date agreed to by the contracting officer and the project officer in the milestone schedule (see 307.104(h)), unless a revised due date has been established by mutual agreement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7103</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) It is the responsibility of the project officer to prepare the RFC so that it complies with the requirements of this subpart and any OPDIV guidance issued in accordance with this subpart.</P>
              <P>(b) Prior to the submission of the RFC to the contracting office, the head of the program office sponsoring the project shall review the RFC to ensure that all required information is provided in the prescribed format, and a technical review of the statement of work has been made. The level and extent of the technical review is to be commensurate with the estimated cost, importance, and complexity of the proposed acquisition, and must be thorough enough to ensure that vague and ambiguous language is eliminated, the statement of work is structured by phases or tasks, if appropriate, and methods are available for assessing the contractor's technical, cost, and delivery performance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7104</SECTNO>
              <SUBJECT>Transmittal.</SUBJECT>
              <P>The RFC must be conveyed to the contracting office by use of a covering memorandum or other form of transmittal. The transmittal document must be signed by the head of the sponsoring program office and include both a statement attesting to the conclusiveness of the review described in 307.7103(b) and a list identifying all attachments to the RFC.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7105</SECTNO>
              <SUBJECT>Format and content.</SUBJECT>
              <P>The Department does not prescribe a standard format for the RFC. A format similar to what is in this section is recommended. However, any document or group of documents will be acceptable as an RFC as long as all of the required information (paragraph (a) of this section), and as much of the optional information (paragraph (b) of this section) as is relevant, is included.</P>
              <P>(a) The RFC must include:</P>
              <P>(1) <E T="03">Purpose of the contract.</E> A brief, general description of the requirement, including the citation of the legislation which authorizes the program or project, and a statement as to the intended purpose/use of the proposed contract.</P>
              <P>(2) <E T="03">Period of performance.</E> The number of months (or other time period) required for total performance and, if applicable, for each phase of work indicated in the statement of work, as well as the proposed starting date.</P>
              <P>(3) <E T="03">Estimated cost and funds citation.</E> An estimate of the total cost of the proposed contract and, if applicable, the estimate for each phase indicated in the statement of work. The project officer must provide a cost breakdown of all contributing cost factors, an estimate of the technical staff hours, direct material, subcontracting, travel, etc., and may consult with contracting and cost advisory personnel in developing this information. This section must include the certification of funds availability for the proposed acquisition, along with the appropriation and accounting information citations. When funds for the proposed acquisition are not currently available for obligation but are anticipated, a statement of intent to commit funds from the financial management officer shall be included in lieu of the certification of funds availability. (Contracts cannot be awarded unless funds are available, but see FAR 32.703-2).</P>
              <P>(4) <E T="03">Specification, purchase description, or statement or work.</E> A description of the work to be performed that may be in the form of a specification, purchase description, or statement of work. Guidance concerning the statement of work and its contents is contained in 307.7106. Use of the specification is primarily limited to supply or service contracts where the material end item or service to be delivered is well defined by the Government. To the maximum extent possible, requirements should be defined as performance-based statements of work that focus on outcomes or results. If the RFC for a service contract is not utilizing a performance-based statement of work, with associated measures and a quality surveillance plan, the rationale for this determination must be documented. If <PRTPAGE P="23"/>a performance-based service contract is utilized, the RFC must detail the performance standards that must be met, the quality surveillance plan that will be implemented and the performance incentives to be used, if applicable.</P>
              <P>(5) <E T="03">Schedule of deliverables/reporting requirements.</E> A description of what is to be delivered, including, if applicable, technical and financial progress reports and any final report, and the required date of delivery for each deliverable. Reporting requirements should be tailored to the instant acquisition and should not be unnecessarily extensive or detailed. All delivery and reporting requirements shall include the quantities, the place of delivery, and time of delivery.</P>
              <P>(6) <E T="03">Sources for solicitation.</E> A list of known potential sources by name, size, type of ownership, and mailing address. The project officer is encouraged to use trade and professional journals and publications and conduct a thorough market research to identify new prospective sources to supplement the list of known sources. Efforts to identify set-aside possibilities, e.g., 8(a), HUBZone, veteran-owned, service-disabled veteran-owned, and small business, and efforts to identify sources such as small disadvantaged and women-owned small businesses must be documented.</P>
              <P>(7) <E T="03">Project officer and alternate.</E> The project officer's name, title, organization, mailing address, and telephone number, along with the same data for the project officer's alternate, and a statement that these individuals have completed the Department's project officer training course (see 307.l70)</P>
              <P>(b) The RFC must include, if applicable to the acquisition:</P>
              <P>(1) <E T="03">Background and need.</E> The background, history, and necessity for the proposed contract. This section is to include prior, present, and planned efforts by the program office in the same or related areas, and a description of efforts by other departmental activities and Federal agencies in the same or related program areas, if known. In addition, specific project information, such as the relevance or contribution to overall program objectives, reasons for the need, priority, and project overlap are to be provided.</P>
              <P>(2) <E T="03">Reference materials.</E> A list, by title and description, of study reports, plans, drawings, and other data to be made available to prospective offerors for use in preparation of proposals and/or the contractor for use in performance of the contract. The project officer must indicate whether this material is currently available or when it will be available, and how it may be accessed by potential offerors.</P>
              <P>(3) <E T="03">Technical evaluation criteria and instructions.</E> Technical evaluation criteria, which have been developed based on the requirements of the specific project, and any instructions and information which will assist in the preparation of prospective offerors' technical proposals. Evaluation factors may include understanding of the problem, technical approach, experience, personnel, facilities, etc. Criteria areas discussed in the statement of work and the relative order of importance or weights assigned to each of these areas for technical evaluation purposes must be identified.</P>
              <P>(4) <E T="03">Special program clearances or approvals.</E> Any required clearance or approval. The following special program clearances or approvals should be reviewed for applicability to each acquisition. The ones which are applicable should be addressed during the planning discussions between the project officer and contracting officer/contract specialist (see 307.104(f)) and immediate action should be initiated by the project officer to obtain the necessary clearances or approvals. Comprehensive checklists of these and any OPDIV special approvals, clearances, and requirements shall be provided for reference purposes to program offices by the servicing contracting activity. If the approval or clearance has been requested and is being processed at the time of RFC submission, a footnote to this effect, including all pertinent details, must be included in this section.</P>
              <P>(i) <E T="03">Commercial activities.</E> (OMB Circular No. A-76). A request for contract (RFC) must contain a statement as to whether the proposed solicitation is or is not to be used as part of an OMB Circular No. A-76 cost comparison. (See General Administration Manual (GAM) Chapter 18-10; FAR subpart 7.3, subpart 307.3; OMB Circular No. A-76.)<PRTPAGE P="24"/>
              </P>
              <P>(ii) <E T="03">Printing.</E> The acquisition of printing and high volume duplicating by contract is prohibited unless it is authorized by the Joint Committee on Printing of the U.S. Congress. Procedures to be followed are contained in the “Government Printing and Binding Regulations” and the HHS Printing Management Manual and FAR subpart 8.8.</P>
              <P>(iii) <E T="03">Paperwork Reduction Act.</E> Under the Paperwork Reduction Act of 1995, a Federal agency shall not collect information or sponsor the collection of information from ten or more persons (other than Federal employees acting within the scope of their employment) unless, in advance, the agency has submitted a request for Office of Management and Budget (OMB) review, to the OMB, and the OMB has approved the proposed collection of information. Procedures for the approval may be obtained by contacting the OPDIV reports clearance officer. (See 5 CFR part 1320).</P>
              <P>(iv) <E T="03">Publications.</E> All projects that will result in contracts which include publications development (print products, electronic bulletin boards, posting on the internet) require review and approval by the Office of the Assistant Secretary for Public Affairs (OASPA). Form HHS-615, Publication Planning and Clearance Request, must be forwarded to OASPA through the OPDIV public affairs officer. Publications are defined in Chapter 5-00-15 of the Public Affairs Management Manual.</P>
              <P>(v) <E T="03">Public affairs services.</E> Projects for the acquisition of public affairs services in excess of $5,000 must be submitted to the Office of the Assistant Secretary for Public Affairs (OASPA) for review and approval on Form HHS-524, Request for Public Affairs Services Contract.</P>
              <P>(vi) <E T="03">Audiovisual.</E> All projects which will result in contracts which include audiovisuals, regardless of the audio, video, or audiovisual medium employed, require review and approval by the Office of the Assistant Secretary for Public Affairs (OASPA). Form HHS-524A, Publication Planning and Clearance Request, must be forwarded to OASPA through the OPDIV public affairs officer. Audiovisuals are defined in chapter 6-00-15 of the Public Affairs Management Manual.</P>
              <P>(vii) <E T="03">Privacy Act (5 U.S.C. 552a).</E> Whenever the Department contracts for the design, development, operation, or maintenance of a system of records on individuals on behalf of the Department to accomplish a departmental function, the Privacy Act is applicable. The program official, after consultation with the activity's Privacy Act Coordinator and the Office of General Counsel, as necessary, shall include a statement in the request for contract as to the applicability of the Act. Whenever an acquisition is subject to the Act, the program official prepares a “system notice” and has it published in the <E T="04">Federal Register.</E> (See HHS Privacy Act regulation, 45 CFR part 5b; FAR subpart 24.1 and subpart 324.1.)</P>
              <P>(viii) <E T="03">Foreign research.</E> All foreign research contract projects to be conducted in a foreign country and financed by HHS funds (U.S. dollars) must have clearance by the Department of State with respect to consistency with foreign policy objectives. This clearance should be obtained prior to negotiation. Procedures for obtaining this clearance are set forth in the HHS General Administration Manual, Chapter 20-60.</P>
              <P>(5) <E T="03">Identification and disposition of data.</E> Identification of the data expected to be generated by the acquisition and an indication of whether the data are to be delivered to the Department or to be retained by the contractor is required. The project officer must also include information relative to the use, maintenance, disclosure, and disposition of data. The project officer must include a statement as to whether or not another acquisition, based upon the data generated by the proposed acquisition, is anticipated.</P>
              <P>(6) <E T="03">Government property.</E> If known, the type of Government property, individual items, and quantities of Government property to be furnished to, or allowed to be acquired by, the resultant contractor should be indicated. The project officer must specify when the Government property is to be made available.</P>
              <P>(7) <E T="03">Special terms and conditions.</E> Any suggested special terms and conditions not already covered in the statement of <PRTPAGE P="25"/>work or the applicable contract general provisions is required.</P>
              <P>(8) <E T="03">Justification for other than full and open competition.</E> If the proposed acquisition is to be awarded using other than full and open competition, a justification prepared in accordance with FAR subpart 6.3 and subpart 306.3 is required.</P>
              <CITA>[66 FR 4226, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>307.7106</SECTNO>
              <SUBJECT>Statement of work.</SUBJECT>
              <P>(a) <E T="03">General.</E> A statement of work (SOW) differs from a specification and purchase description primarily in that it describes work or services to be performed in reaching an end result rather than a detailed, well defined description or specification of the end product. The SOW may enumerate or describe the methods (statistical, clinical, laboratory, etc.) that will be used. However, it is preferable for the offeror to propose the method of performing the work. The SOW should specify the desired results, functions, or end items without telling the offeror what has to be done to accomplish those results unless the method of performance is critical or required for the successful performance of the contract. The SOW should be clear and concise and must completely define the responsibilities of the Government and the contractor. The SOW should be worded so as to make more than one interpretation virtually impossible because it has to be read and interpreted by persons of varied backgrounds, such as attorneys, contracting personnel, cost estimators, accountants, scientists, educators, functional specialists, etc. The SOW must clearly define the obligations of both the contractor and the Government so as to protect the interests of both. Ambiguous statements of work can create unsatisfactory performance, delays, and disputes, and can result in higher costs.</P>
              <P>(b) <E T="03">Term (level of effort) vs. completion work statement.</E> Careful distinctions must be drawn between term (level of effort) SOWs, which essentially require the furnishing of technical effort and which may include a report thereof, and completion type work statements, which require development of tangible items designed to meet specific performance and/or design characteristics. (See FAR 16.306(d) for distinction).</P>
              <P>(1) <E T="03">Term (or level of effort).</E> A term or level of effort type SOW is appropriate for research where one seeks to discover the feasibility of later development, or to gather general information. A term or level of effort type SOW may only specify that some number of labor-hours be expended on a particular course of research, or that a certain number of tests be run, without reference to any intended conclusion.</P>
              <P>(2) <E T="03">Completion.</E> A completion type SOW is appropriate to development work where the feasibility of producing an end item is already known. A completion type SOW may describe what is to be achieved through the contracted effort, such as development of new methods, new end items, or other tangible results.</P>
              <P>(c) <E T="03">Phasing.</E> Individual research, development, or demonstration projects frequently lie well beyond the present state of the art and entail procedures and techniques of great complexity and difficulty. Under these circumstances, a contractor, no matter how carefully selected, may be unable to deliver the desired result. Moreover, the job of evaluating the contractor's progress is often difficult. Such a contract is frequently phased and often divided into stages of accomplishment, each of which must be completed and approved before the contractor may proceed to the next. Phasing makes it necessary to develop methods and controls, including reporting requirements for each phase of the contract and criteria for evaluation of the report submitted, that will provide, at the earliest possible time, appropriate data for making decisions relative to future phases. A phased contract may include stages of accomplishment such as research, development, and demonstration. Within each phase, there may be a number of tasks which should be included in the SOW. When phases of work can be identified, the SOW will provide for phasing and the request for proposals will require the submission of proposed costs by phases. The resultant contract will reflect costs by phases, require the contractor to identify incurred costs by phases, establish delivery schedules by <PRTPAGE P="26"/>phase, and require the written acceptance of each phase. The provisions of the Limitation of Cost clause shall apply to the estimated cost of each phase. Contractors shall not be allowed to incur costs for phases which are dependent upon successful completion of earlier phases until written acceptance of the prior work is obtained from the contracting officer.</P>
              <P>(d) <E T="03">Elements of the SOW.</E> The elements of the SOW will vary with the objective, complexity, size, and nature of the acquisition. In general, it should cover the following matters as appropriate.</P>
              <P>(1) <E T="03">A general description of the required objectives and desired results.</E> Initially, a broad, nontechnical statement of the nature of the work to be performed. This should summarize the actions to be performed by the contractor and the results that the Government expects.</P>
              <P>(2) <E T="03">Background information helpful to a clear understanding of the requirements and how they evolved.</E> Include a brief historical summary as appropriate and the relationship to overall program objectives.</P>
              <P>(3) <E T="03">A detailed description of the technical requirements.</E> A comprehensive description of the work to be performed to provide whatever details are necessary for prospective offerors to submit meaningful proposals.</P>
              <P>(4) <E T="03">Subordinate tasks or types of work.</E> A listing of the various tasks or types of work (it may be desirable in some cases to indicate that this is not all-inclusive). The degree of task breakout is directly dependent on the size and complexity of the work to be performed and the logical groupings. A single cohesive task should not be broken out merely to conform to a format. Indicate whether the tasks are sequential or concurrent for offeror planning purposes.</P>
              <P>(5) <E T="03">Reference material.</E> All reference material to be used in the conduct of the project that tells how the work is to be carried out must be identified. Applicability should be explained, and a statement made as to where the material can be obtained.</P>
              <P>(6) <E T="03">Level of effort.</E> When a level of effort is required, the number and type of personnel required should be stated. If known, the type and degree of expertise should be specified.</P>
              <P>(7) <E T="03">Special requirements.</E> (as applicable). An unusual or special contractual requirement, which would impact on contract performance, should be included as a separate section.</P>
              <P>(8) <E T="03">Deliverables reporting requirements.</E> All deliverables and/or reports must be clearly and completely described.</P>
            </SECTION>
            <SECTION>
              <SECTNO>307.7107</SECTNO>
              <SUBJECT>Review.</SUBJECT>
              <P>Upon receipt of the RFC, the contracting officer shall review its contents to ensure that all pertinent information has been provided by the program office and that it includes an acceptable SOW. If pertinent information is missing or the SOW is inadequate, the contracting officer shall obtain or clarify the information as soon as possible so that the acquisition schedule can be met. If the program office delays furnishing the information or clarification, the contracting officer should notify the head of the sponsoring program office, in writing, of the possible slippage in the acquisition schedule and the need for an expeditious remedy. The contracting officer should also notify the chief of the contracting office. A program office's or project officer's continued failure to adhere to agreed on milestones should also be reported to the head of the contracting activity.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 309</EAR>
          <HD SOURCE="HED">PART 309—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 309.4—Debarment, Suspension, and Ineligibility</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>309.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>309.404</SECTNO>
              <SUBJECT>List of Parties Excluded from Federal Procurement and Nonprocurement Programs.</SUBJECT>
              <SECTNO>309.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <SECTNO>309.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>309.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>309.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <SECTNO>309.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>309.470</SECTNO>
              <SUBJECT>Reporting of suspected causes for debarment, suspension, or the taking of evasive actions.</SUBJECT>
              <SECTNO>309.470-1</SECTNO>
              <SUBJECT>Situations where reports are required.</SUBJECT>
              <SECTNO>309.470-2</SECTNO>
              <SUBJECT>Contents of reports.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <PRTPAGE P="27"/>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4231, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 309.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>309.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Acquiring agency's head or designee,</E> as used in the FAR, shall mean, unless otherwise stated in this subpart, the head of the contracting activity. Acting in the capacity of the acquiring agency's head, the head of the contracting activity may make the required justifications or determinations, and take the necessary actions, specified in FAR 9.405, 9.406 and 9.407 for his or her respective activity, but only after obtaining the written approval of the debarring or suspending official, as the case may be.</P>
              <P>
                <E T="03">Debarring official</E> means the Assistant Secretary for Administration and Management, or his/her designee.</P>
              <P>
                <E T="03">Initiating official</E> means either the contracting officer, the head of the contracting activity, the Director, Office of Acquisition Management and Policy, or the Inspector General.</P>
              <P>
                <E T="03">Suspending official</E> means the Assistant Secretary for Administration and Management, or his/her designee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>309.404</SECTNO>
              <SUBJECT>List of Parties Excluded from Federal Procurement and Nonprocurement Programs.</SUBJECT>
              <P>(c) The Office of Grants and Acquisition Management (OGAM) shall perform the actions required by FAR 9.404(c).</P>
              <P>(4) OGAM shall maintain all documentation submitted by the initiating official recommending the debarment or suspension action and all correspondence and other pertinent documentation generated during the OGAM review.</P>
            </SECTION>
            <SECTION>
              <SECTNO>309.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <P>(a) The head of the contracting activity (HCA) (not delegable) may, with the written concurrence of the debarring or suspending official, make the determinations referenced in FAR 9.405(a), regarding contracts for their respective activities.</P>
              <P>(1) If a contracting officer considers it necessary to award a contract, or consent to a subcontract with a debarred or suspended contractor, the contracting officer shall prepare a determination, including all pertinent documentation, and submit it through acquisition channels to the head of the contracting activity. The documentation must include the date by which approval is required and a compelling reason for the proposed action. Some examples of circumstances that may constitute a compelling reason for the award to, or consent to a subcontract with, a debarred or suspended contractor include:</P>
              <P>(i) The property or services to be acquired are available only from the listed contractor;</P>
              <P>(ii) The urgency of the requirement dictates that the Department deal with the listed contractor; or</P>
              <P>(iii) There are other compelling reasons which require business dealings with the listed contractor.</P>
              <P>(2) If the HCA decides to approve the requested action, he/she shall request the concurrence of the debarring or suspending official and, if given, shall inform the contracting officer in writing of the decision within the required time period.</P>
            </SECTION>
            <SECTION>
              <SECTNO>309.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>309.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> Whenever an apparent cause for debarment becomes known to an initiating official, that person shall prepare a report incorporating the information required by 309.470-2, if known, and forward it through appropriate channels with a written recommendation, to the debarring official. Contracting officers shall forward their reports in accordance with 309.470-1. The debarring official shall initiate an investigation through such means as he/she deems appropriate.</P>
              <P>(b) <E T="03">Decisionmaking process.</E> The debarring official shall review the results of the investigation, if any, and make a written determination whether or not debarment procedures are to be commenced. A copy of the determination <PRTPAGE P="28"/>shall be promptly sent through appropriate channels to the initiating official, and the contracting officer, if necessary. If the debarring official determines to commence debarment procedures, he/she shall, after consultation with the Office of the General Counsel, notify the contractor in accordance with FAR 9.406-3(c). If the proposed action is not based on a conviction or judgement and the contractor's submission in response to the notice raises a genuine dispute over facts material to the proposed debarment, the debarring official shall arrange for fact-finding hearings and take the necessary action specified in FAR 9.406-3(b)(2). The debarring official shall also ensure that written findings of facts are prepared, and shall base the debarment decisions on the facts as found, after considering information and argument submitted by the contractor and any other information in the administrative record. The Office of the General Counsel shall represent the Department at any fact-finding hearing and may present witnesses for HHS and question any witnesses presented by the contractor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>309.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>309.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> Whenever an apparent cause for suspension becomes known to an initiating official, that person shall prepare a report incorporating the information required by 309.470-2, if known, and forward it through appropriate channels, with a written recommendation, to the suspending official. Contracting officers shall forward their reports in accordance with 309.470-1. The suspending official shall initiate an investigation through such means as he/she deems appropriate.</P>
              <P>(b) <E T="03">Decisionmaking process.</E> The suspending official shall review the results of the investigation, if any, and make a written determination whether or not suspension should be imposed. A copy of this determination shall be promptly sent through appropriate channels to the initiating official and the contracting officer, if necessary. If the suspending official determines to impose suspension, he/she shall, after consultation with the Office of the General Counsel, notify the contractor in accordance with FAR 9.407-3(c). If the action is not based on an indictment, and, subject to the provisions of FAR 9.407-3(b)(2), the contractor's submission in response to the notice raises a genuine dispute over facts material to the suspension, the suspending official shall, after suspension has been imposed, arrange for fact-finding hearings and take the necessary actions specified in FAR 9.407-3(b)(2).</P>
            </SECTION>
            <SECTION>
              <SECTNO>309.470</SECTNO>
              <SUBJECT>Reporting of suspected causes for debarment or suspension, or the taking of evasive actions.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>309.470-1</SECTNO>
              <SUBJECT>Situations where reports are required.</SUBJECT>
              <P>A report incorporating the information required by 309.470-2 shall be forwarded, in duplicate, by the contracting officer through acquisition channels to OGAM when:</P>
              <P>(a) A contractor has committed, or is suspected of having committed, any of the acts described in FAR 9.406-2 or FAR 9.407-2; or</P>
              <P>(b) A contractor is suspected of attempting to evade the prohibitions of debarment or suspension imposed under this subject, or any other comparable regulation, by changes of address, multiple addresses, formation of new companies, or by other devices.</P>
            </SECTION>
            <SECTION>
              <SECTNO>309.470-2</SECTNO>
              <SUBJECT>Contents of reports.</SUBJECT>
              <P>Each report prepared under 309.470-1 shall be coordinated with the Office of the General Counsel and shall include the following information, where available:</P>
              <P>(a) Name and address of contractor.</P>
              <P>(b) Name of the principal officers, partners, owners, or managers.</P>
              <P>(c) All known affiliates, subsidiaries, or parent firms, and the nature of the affiliation.</P>
              <P>(d) Description of the contract or contracts concerned, including the contract number, and office identifying numbers or symbols, the amount of each contract, the amount paid the contractor and the amount still due, and the percentage of work completed and to be completed.</P>
              <P>(e) The status of vouchers.</P>

              <P>(f) Whether contract funds have been assigned pursuant to the Assignment of Claims Act, as amended, (31 U.S.C. 3727, <PRTPAGE P="29"/>41 U.S.C. 15), and, if so assigned, the name and address of the assignee and a copy of the assignment.</P>
              <P>(g) Whether any other contracts are outstanding with the contractor or any affiliates, and, if so, the amount of the contracts, whether these funds have been assigned pursuant to the Assignment of Claims Act, as amended, (31 U.S.C. 3727, 41 U.S.C. 15), and the amounts paid or due on the contracts.</P>
              <P>(h) A complete summary of all available pertinent evidence.</P>
              <P>(i) A recommendation as to the continuation of current contracts.</P>
              <P>(j) An estimate of damages, if any, sustained by the Government as a result of the action of the contractor, including an explanation of the method used in making the estimate.</P>
              <P>(k) The comments and recommendations of the contracting officer and statements regarding whether the contractor should be suspended or debarred, whether any limitations should be applied to the action, and the period of any proposed debarment.</P>
              <P>(l) As an enclosure, a copy of the contract(s) or pertinent excerpts therefrom, appropriate exhibits, testimony or statements of witnesses, copies of assignments, and other relevant documentation or a written summary of any information for which documentation is not available.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="30"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 313</EAR>
          <HD SOURCE="HED">PART 313—SIMPLIFIED ACQUISITION PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 313.3—Simplified Acquisition Methods</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>313.301</SECTNO>
              <SUBJECT>Governmentwide commercial purchase card.</SUBJECT>
              <SECTNO>313.303</SECTNO>
              <SUBJECT>Blanket Purchase Agreements (BPAs).</SUBJECT>
              <SECTNO>313.303-5</SECTNO>
              <SUBJECT>Purchases under BPAs.</SUBJECT>
              <SECTNO>313.305</SECTNO>
              <SUBJECT>Imprest funds and third party drafts.</SUBJECT>
              <SECTNO>313.305-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>313.306</SECTNO>
              <SUBJECT>SF 44, Purchase Order—Invoice—Voucher.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4233, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 313.3—Simplified Acquisition Methods.</HD>
            <SECTION>
              <SECTNO>313.301</SECTNO>
              <SUBJECT>Governmentwide commercial purchase card.</SUBJECT>
              <P>(b) The Department has issued general guidance concerning the use of governmentwide commercial purchase cards, and has authorized the OPDIVs to establish procedures for the use, administrative and management controls, and training necessary to comply with FAR 13.301.</P>
            </SECTION>
            <SECTION>
              <SECTNO>313.303</SECTNO>
              <SUBJECT>Blanket Purchase Agreements (BPAs).</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>313.303-5</SECTNO>
              <SUBJECT>Purchases under BPAs.</SUBJECT>
              <P>(e)(5) Delivery documents, invoices, etc., signed by the Government employee receiving the item or service will be forwarded to the fiscal office or other paying office as designated by the OPDIV. Payment will be made on the basis of the signed document, invoice, etc. Contracting offices will ensure that established procedures allowing for availability of funds are in effect prior to placement of orders.</P>
            </SECTION>
            <SECTION>
              <SECTNO>313.305</SECTNO>
              <SUBJECT>Imprest funds and third party drafts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>313.305-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Requests to establish imprest funds shall be made to the responsible fiscal office. At larger activities where the cashier may not be conveniently located near the purchasing office, a Class C Cashier may be installed in the purchasing office. Documentation of cash purchases shall be in accordance with instructions contained in the HHS Voucher Audit Manual Part 1, Chapter 1-10.</P>
            </SECTION>
            <SECTION>
              <SECTNO>313.306</SECTNO>
              <SUBJECT>SF 44, Purchase Order—Invoice—Voucher.</SUBJECT>
              <P>(d) Since the Standard Form (SF) 44 is an accountable form, a record shall be maintained of serial numbers of the form, to whom issued, and date issued. SF 44's shall be kept under adequate lock and key to prevent unauthorized use. A reservation of funds shall be established to cover total anticipated expenditures prior to use of the SF 44.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 314</EAR>
          <HD SOURCE="HED">PART 314—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 314.2—Solicitation of Bids</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>314.202</SECTNO>
              <SUBJECT>General rules for solicitation of bids.</SUBJECT>
              <SECTNO>314.202-7</SECTNO>
              <SUBJECT>Facsimile bids.</SUBJECT>
              <SECTNO>314.213</SECTNO>
              <SUBJECT>Annual submission of representations and certifications.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 314.4—Opening of Bids and Award of Contract</HD>
              <SECTNO>314.404</SECTNO>
              <SUBJECT>Rejection of bids.</SUBJECT>
              <SECTNO>314.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <SECTNO>314.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
              <SECTNO>314.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <SECTNO>314.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4233, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="31"/>
            <HD SOURCE="HED">Subpart 314.2—Solicitation of Bids</HD>
            <SECTION>
              <SECTNO>314.202</SECTNO>
              <SUBJECT>General rules for solicitation of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>314.202-7</SECTNO>
              <SUBJECT>Facsimile bids.</SUBJECT>
              <P>If the head of the contracting activity (HCA) (not delegable) has determined that the contracting activity will allow use of facsimile bids and proposals, the HCA shall prescribe internal procedures, in accordance with the FAR, to ensure uniform processing and control.</P>
            </SECTION>
            <SECTION>
              <SECTNO>314.213</SECTNO>
              <SUBJECT>Annual submission of representations and certifications.</SUBJECT>
              <P>Each HCA (not delegable) shall determine whether the contracting activity will allow use of the annual submission of representations and certifications by bidders.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 314.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>314.404</SECTNO>
              <SUBJECT>Rejection of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>314.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <P>The chief of the contracting office (CCO) (not delegable) shall make the determinations required to be made by the agency head in FAR 14.404-1.</P>
            </SECTION>
            <SECTION>
              <SECTNO>314.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>314.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>(e) Authority has been delegated to the Departmental Protest Control Officer, Office of Acquisition Management, Office of Grants and Acquisition Management, to make administrative determinations in connection with mistakes in bid alleged after opening and before award. This authority may not be redelegated.</P>
              <P>(f) Each proposed determination shall have the concurrence of the Chief, Business Law Branch, Business and Administrative Law Division, Office of General Counsel.</P>
              <P>(i) Doubtful cases shall not be submitted by the contracting officer directly to the Comptroller General, but shall be submitted to the Departmental Protest Control Officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>314.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
              <P>(c) Authority has been delegated to the Departmental Protest Control Officer to make administrative determinations in connection with mistakes in bid alleged after award. This authority may not be redelegated.</P>
              <P>(d) Each proposed determination shall have the concurrence of the Chief, Business Law Branch, Business and Administrative Law Division, Office of the General Counsel.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 315</EAR>
          <HD SOURCE="HED">PART 315—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 315.2—Solicitation and Receipt of Proposals and Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>315.204</SECTNO>
              <SUBJECT>Contract format.</SUBJECT>
              <SECTNO>315.204-5</SECTNO>
              <SUBJECT>Part IV—Representations and instructions.</SUBJECT>
              <SECTNO>315.208</SECTNO>
              <SUBJECT>Submission, modification, revision, and withdrawal of proposals.</SUBJECT>
              <SECTNO>315.209</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 315.3—Source Selection</HD>
              <SECTNO>315.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <SECTNO>315.306</SECTNO>
              <SUBJECT>Exchanges with offerors after receipt of proposals.</SUBJECT>
              <SECTNO>315.307</SECTNO>
              <SUBJECT>Proposal revisions.</SUBJECT>
              <SECTNO>315.370</SECTNO>
              <SUBJECT>Finalization of details with the selected source.</SUBJECT>
              <SECTNO>315.371</SECTNO>
              <SUBJECT>Contract preparation and award.</SUBJECT>
              <SECTNO>315.372</SECTNO>
              <SUBJECT>Preparation of negotiation memorandum.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 315.4—Contract Pricing</HD>
              <SECTNO>315.404</SECTNO>
              <SUBJECT>Proposal analysis.</SUBJECT>
              <SECTNO>315.404-2</SECTNO>
              <SUBJECT>Information to support proposal analysis.</SUBJECT>
              <SECTNO>315.404-4</SECTNO>
              <SUBJECT>Profit.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 315.6—Unsolicited Proposals</HD>
              <SECTNO>315.605</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <SECTNO>315.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <SECTNO>315.606-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
              <SECTNO>315.609</SECTNO>
              <SUBJECT>Limited use of data.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4233, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="32"/>
            <HD SOURCE="HED">Subpart 315.2—Solicitation and Receipt of Proposals and Information</HD>
            <SECTION>
              <SECTNO>315.204</SECTNO>
              <SUBJECT>Contract format.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>315.204-5</SECTNO>
              <SUBJECT>Part IV—Representations and instructions.</SUBJECT>
              <P>(a) <E T="03">Section K, Representations, certifications, and other statements of offerors.</E>
              </P>

              <P>(1) This section shall begin with the following and continue with the applicable representations and certifications:
              </P>
              <EXTRACT>
                <P>
                  <E T="03">To Be Completed by the Offeror:</E> (The Representations and Certifications must be executed by an individual authorized to bind the offeror.) The offeror makes the following Representations and Certifications as part of its proposal (check or complete all appropriate boxes or blanks on the following pages).
                </P>
                <FP SOURCE="FP-DASH"/>
                <FP>(Name of Offeror)</FP>
                
                <FP SOURCE="FP-DASH"/>
                <FP>(RFP No.)</FP>
                
                <FP SOURCE="FP-DASH"/>
                <FP>(Signature of Authorized Individual)</FP>
                
                <FP SOURCE="FP-DASH"/>
                <FP>(Date)</FP>
                
                <FP SOURCE="FP-DASH"/>
                <FP>(Typed Name of Authorized Individual)</FP>
              </EXTRACT>
              
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.</P>
              </NOTE>
              
              <P>(c) <E T="03">Section M, Evaluation factors for award.</E> (1) <E T="03">General.</E> (i) The evaluation factors must be developed by the project officer and submitted to the contracting officer in the request for contract (RFC) for inclusion in the request for proposal (RFP). Development of these factors and the assignment of the relative importance or weight to each require the exercise of judgment on a case-by-case basis because they must be tailored to the requirements of the individual acquisition. Since the factors will serve as a standard against which all proposals will be evaluated, it is imperative that they be chosen carefully to emphasize those considered to be critical in the selection of a contractor.</P>
              <P>(ii) The finalized evaluation factors cannot be changed except by a formal amendment to the RFP issued by the contracting officer. No factors other than those set forth in the RFP shall be used in the evaluation of proposals.</P>
              <P>(2) <E T="03">Review of evaluation factors.</E> (i) The evaluation factors should be reviewed by the contracting officer in terms of the work statement. This review is not intended to dictate technical requirements to the program office or project officer, but rather to ensure that the evaluation factors are clear, concise, and fair so that all potential offerors are fully aware of the bases for proposal evaluation and are given an equal opportunity to compete.</P>
              <P>(ii) The project officer and the contracting officer should then review the evaluation factors together to ascertain the following:</P>
              <P>(A) The factors are described in sufficient detail to provide the offerors (and evaluators) with a total understanding of the factors to be involved in the evaluation process;</P>
              <P>(B) The factors address the key programmatic concerns which the offerors must be aware of in preparing proposals;</P>
              <P>(C) The factors are specifically applicable to the instant acquisition and are not merely restatements of factors from previous acquisitions which are not relevant to this acquisition; and</P>
              <P>(D) The factors are selected to represent only the significant areas of importance which must be emphasized rather than a multitude of factors. (All factors tend to lose importance if too many are included. Using too many factors will prove as detrimental as using too few.)</P>
              <P>(3) <E T="03">Examples of topics that form a basis for evaluation factors.</E> Typical examples of topics that form a basis for the development of evaluation factors are listed in the following paragraphs. These examples are intended to assist in the development of actual evaluation factors for a specific acquisition and should only be used if they are applicable to that acquisition. They are not to be construed as actual examples of evaluation factors to be included in the RFP.</P>
              <P>(i) Understanding of the problem and statement of work:</P>
              <P>(ii) Method of accomplishing the objectives and intent of the statement of work;</P>

              <P>(iii) Soundness of the scientific or technical approach for executing the requirements of the statement of work <PRTPAGE P="33"/>(to include, when applicable, preliminary layouts, sketches, diagrams, other graphic representations, calculations, curves, and other data necessary for presentation, substantiation, justification, or understanding of the approach);</P>
              <P>(iv) Special technical factors, such as experience or pertinent novel ideas in the specific branch of science or technology involved;</P>
              <P>(v) Feasibility and/or practicality of successfully accomplishing the requirements (to include a statement and discussion of anticipated major difficulties and problem areas and recommended approaches for their resolution);</P>
              <P>(vi) Availability of required special research, test, and other equipment or facilities;</P>
              <P>(vii) Managerial capability (ability to achieve delivery or performance requirements as demonstrated by the proposed use of management and other personnel resources, and to successfully manage the project, including subcontractor and/or consultant efforts, if applicable, as evidenced by the management plan and demonstrated by previous experience);</P>
              <P>(viii) Availability, qualifications, experience, education, and competence of professional, technical, and other personnel, to include proposed subcontractors and consultants (as evidenced by resumes, endorsements, and explanations of previous efforts);</P>
              <P>(ix) Soundness of the proposed staff time or labor hours, propriety of personnel classifications (professional, technical, others), necessity for type and quantity of material and facilities proposed, validity of proposed subcontracting, and necessity of proposed travel;</P>
              <P>(x) Quality of offeror's past performance on recent projects of similar size and scope; and</P>
              <P>(xi) Extent of proposed participation of small disadvantaged business concerns in performance of the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.208</SECTNO>
              <SUBJECT>Submission, modification, revision, and withdrawal of proposals.</SUBJECT>
              <P>(b) When the head of the contracting activity (HCA) for a health agency determines that certain classes of biomedical or behavioral research and development acquisitions should be subject to conditions other than those specified in FAR 52.215-1(c)(3), the HCA may authorize the use of the provision at 352.215-70 in addition to the provision at FAR 52.215-1. This is an authorized deviation.</P>
              <P>(2) When the provision at 352.215-70 is included in the solicitation and a proposal is received after the exact time specified for receipt, the contracting officer, with the assistance of cost and technical personnel, shall make a written determination as to whether the proposal meets the requirements of the provision at 352.215-70 and, therefore, can be considered.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.209</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) Paragraph (e) of the provision at 352.215-1 shall be used in place of that specified at FAR 52.215-1(e). This is an authorized deviation.</P>
              <P>(g) If the head of the contracting activity (HCA)(not delegable) has determined that the contracting activity will allow the use of the annual submission of representations and certifications by offerors, the provisions of FAR 14.213 shall be followed.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 315.3—Source Selection</HD>
            <SECTION>
              <SECTNO>315.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <P>(a)(1) <E T="03">Cost or price evaluation.</E> The contracting officer shall evaluate business proposals adhering to the requirements for cost or price analysis included in FAR 15.404. The contracting officer must determine the extent of analysis in each case depending on the amount of the proposal, the technical complexity, and related cost or price. The contracting officer should request the project officer to analyze items such as the number of labor hours proposed for various labor categories; the mix of labor hours and categories of labor in relation to the technical requirements of the project; the kinds and quantities of material, equipment, and supplies; types, numbers and hours/days of proposed consultants; logic of proposed subcontracting; analysis of the travel proposed including number of trips, locations, purpose, and travelers; and kinds and quantities of information technology. The project officer <PRTPAGE P="34"/>shall provide his/her opinion as to whether these elements are necessary and reasonable for efficient contract performance. Exceptions to proposed elements shall be supported by adequate rationale to allow for effective negotiations or award if discussions are not conducted. The contracting officer should also request the assistance of a cost/price analyst when considered necessary. In all cases, the negotiation memorandum must include the rationale used in determining that the price or cost is fair and reasonable.</P>
              <P>(2) <E T="03">Past performance evaluation.</E> When evaluating past performance, the contracting officer is responsible for conducting reference checks to obtain information concerning the performance history of offerors. The contracting officer may require the assistance of the project officer as well as other Government technical personnel in performing this function.</P>
              <P>(3) <E T="03">Technical evaluation.</E>
              </P>
              <P>(i) Technical evaluation plan.</P>
              <P>(A) A technical evaluation plan may be required by the contracting officer, at his/her discretion, when an acquisition is sufficiently complex as to warrant a formal plan.</P>
              <P>(B) The technical evaluation plan should include at least the following:</P>
              <P>(<E T="03">1</E>) A list of recommended technical evaluation panel members, their organizations, a list of their major consulting clients (if applicable), their qualifications, and curricula vitae (if applicable);</P>
              <P>(<E T="03">2</E>) A justification for using non-Government technical evaluation panel members. (Justification is not required if non-Government evaluators will be used in accordance with standard contracting activity procedures or policies);</P>
              <P>(<E T="03">3</E>) A statement that there is no apparent or actual conflict of interest regarding any recommended panel member;</P>
              <P>(<E T="03">4</E>) A copy of each rating sheet, approved by the contracting officer, to be used to assure consistency with the evaluation criteria; and</P>
              <P>(<E T="03">5</E>) A brief description of the general evaluation approach.</P>
              <P>(C) The technical evaluation plan must be signed by an official within the program office in a position at least one level above the project officer, or in accordance with contracting activity procedures.</P>
              <P>(D) The technical evaluation plan should be submitted to the contracting officer for review and approval before the solicitation is issued. The contracting officer shall make sure that the significant factors and subfactors relating to the evaluation are reflected in the evaluation criteria when conducting the review of the plan.</P>
              <P>(ii) Technical evaluation panel.</P>
              <P>(A) <E T="03">General.</E> (<E T="03">1</E>) A technical evaluation panel is required for all acquisitions subject to this subpart which are expected to exceed $500,000 and in which technical evaluation is considered a key element in the award decision. The contracting officer has the discretion to require a technical evaluation panel for acquisitions not exceeding $500,000 based on the complexity of the acquisition.</P>
              <P>(<E T="03">2</E>) The technical evaluation process requires careful consideration regarding the size, composition, expertise, and function of the technical evaluation panel. The efforts of the panel can result in the success or failure of the acquisition.</P>
              <P>(B) <E T="03">Role of the project officer.</E> (<E T="03">1</E>) The project officer is the contracting officer's technical representative for the acquisition action. The project officer may be a voting member of the technical evaluation panel, and may also serve as the chairperson of the panel, unless he/she is prohibited by law or contracting activity procedures to do so.</P>
              <P>(<E T="03">2</E>) The project officer is responsible for recommending panel members who are knowledgeable in the technical aspects of the acquisition and who are competent to identify strengths and weaknesses of the various proposals. The program training requirements specified in 307.170 must be adhered to when selecting prospective panel members (government employees).</P>
              <P>(<E T="03">3</E>) The project officer shall ensure that persons possessing expertise and experience in addressing issues relative to sex, race, national origin, and handicapped discrimination are included as panel members in acquisitions which address those issues. The intent is to balance the composition of the panel so <PRTPAGE P="35"/>that qualified and concerned individuals may provide insight to other panel members regarding ideas for, and approaches to be taken in, the evaluation of proposals.</P>
              <P>(<E T="03">4</E>) The project officer is to submit the recommended list of panel members to an official within the program office in a position at least one level above the project officer, or in accordance with contracting activity procedures. This official will review the recommendations and select the chairperson.</P>
              <P>(<E T="03">5</E>) The project officer shall arrange for adequate and secure working space for the panel.</P>
              <P>(C) <E T="03">Role of the contracting officer.</E> (<E T="03">1</E>) The term “contracting officer,” as used in this subpart, may be the contracting officer or his/her designated representative within the contracting office.</P>
              <P>(<E T="03">2</E>) The contracting officer shall not serve as a member of the technical evaluation panel but should be available to:</P>
              <P>(<E T="03">i</E>) Address the initial meeting of the technical evaluation panel;</P>
              <P>(<E T="03">ii</E>) Provide assistance to the evaluators as required; and</P>
              <P>(<E T="03">iii</E>) Ensure that the scores adequately reflect the written technical report comments.</P>
              <P>(D) <E T="03">Conflict of interest.</E> (<E T="03">1</E>) If a panel member has an actual or apparent conflict of interest related to a proposal under evaluation, he/she shall be removed from the panel and replaced with another evaluator. If a suitable replacement is not available, the panel shall perform the review without a replacement.</P>
              <P>(<E T="03">2</E>) For the purposes of this subpart, conflicts of interest are defined in the Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635), Supplemental Standards of Ethical Conduct for Employees of the Department of Health and Human Services (5 CFR part 5501), and the Procurement Integrity Act. For outside evaluators serving on the technical evaluation panel, see paragraph (a)(3)(ii)(F) of this section.</P>
              <P>(E) <E T="03">Continuity of evaluation process.</E> (<E T="03">1</E>) The technical evaluation panel is responsible for evaluating the original proposals, making recommendations to the chairperson regarding weaknesses and deficiencies of proposals, and, if required by the contracting officer, assisting the contracting officer during communications and discussions, and reviewing supplemental, revised and/or final proposal revisions. To the extent possible, the same evaluators should be available throughout the entire evaluation and selection process to ensure continuity and consistency in the treatment of proposals. The following are examples of circumstances when it would not be necessary for the technical evaluation panel to evaluate revised proposals submitted during the acquisition:</P>
              <P>(<E T="03">i</E>) The answers to questions do not have a substantial impact on the proposal;</P>
              <P>(<E T="03">ii</E>) Final proposal revisions are not materially different from the original proposals; or</P>
              <P>(<E T="03">iii</E>) The rankings of the offerors are not affected because the revisions to the proposals are relatively minor.</P>
              <P>(<E T="03">2</E>) The chairperson, with the concurrence of the contracting officer, may decide not to have the panel evaluate the revised proposals. Whenever this decision is made, it must be fully documented by the chairperson and approved by the contracting officer.</P>
              <P>(<E T="03">3</E>) When technical evaluation panel meetings are considered necessary by the contracting officer, the attendance of evaluators is mandatory. When the chairperson determines that an evaluator's failure to attend the meetings is prejudicial to the evaluation, the chairperson shall remove and/or replace the individual after discussing the situation with the contracting officer and obtaining his/her concurrence and the approval of the official responsible for appointing the panel members.</P>
              <P>(<E T="03">4</E>) Whenever continuity of the evaluation process is not possible, and either new evaluators are selected or a reduced panel is decided upon, each proposal which is being reviewed at any stage of the acquisition shall be reviewed at that stage by all members of the revised panel unless it is impractical to do so because of the receipt of an unusually large number of proposals.</P>
              <P>(F) <E T="03">Use of outside evaluators.</E> (<E T="03">1</E>) The National Institutes of Health (NIH) and <PRTPAGE P="36"/>the Substance Abuse and Mental Health Services Administration (SAMHSA) are required to have a peer review of research and development contracts in accordance with Public Law 93-352 as amended by Public Law 94-63; 42 U.S.C. 289 a and 42 U.S.C. 290aa-3 respectively. This legislation requires peer review of projects and proposals, and not more than one-fourth of the members of a peer review group may be officers or employees of the United States. NIH and SAMHSA are therefore exempt from the provisions of 315.305(a)(3)(ii) to the extent that 42 U.S.C. 289a and 290aa-3 apply. Conflicts of interest are addressed at 42 CFR part 52h. Other agencies subject to statutory scientific peer review requirements are also exempt from the requirements of paragraph (a)(3)(ii) of this section to the extent that these requirements are inconsistent with their legislative requirements.</P>
              <P>(<E T="03">2</E>) In general, decisions to disclose proposals outside the Government for evaluation purposes shall be made by the official responsible for appointing panel members for the acquisition, after consultation with the contracting officer and in accordance with operating division procedures. The decision to disclose either a solicited or unsolicited proposal outside the Government for the purpose of obtaining an evaluation shall take into consideration the avoidance of organizational conflicts of interest and any competitive relationship between the submitter of the proposal and the prospective evaluator(s).</P>
              <P>(<E T="03">3</E>) When it is determined to disclose a solicited proposal outside the Government for evaluation purposes, the following or similar conditions shall be included in the written agreement with evaluator(s) prior to disclosure:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Conditions for Evaluating Proposals</HD>
                <P>The evaluator agrees to use the data (trade secrets, business data, and technical data) contained in the proposal only for evaluation purposes.</P>
                <P>The foregoing requirement does not apply to data obtained from another source without restriction.</P>
                <P>Any notice or legend placed on the proposal by either the Department or the submitter of the proposal shall be applied to any reproduction or abstract provided to the evaluator or made by the evaluator. Upon completion of the evaluation, the evaluator shall return the Government furnished copy of the proposal or abstract, and all copies thereof, to the Departmental office which initially furnished the proposal for evaluation.</P>
                <P>Unless authorized by the Department's initiating office, the evaluator shall not contact the submitter of the proposal concerning any aspects of its contents.</P>
                <P>The evaluator is obligated to obtain commitments from its employees and subcontractors, as necessary, to effect the purposes of these conditions.</P>
              </EXTRACT>
              
              <P>(iii) Receipt of proposals.</P>
              <P>(A) After the closing date set by the solicitation for the receipt of proposals, the contracting officer will use a transmittal memorandum to forward the technical proposals to the project officer or chairperson for evaluation. The business proposals will be retained by the contracting officer for evaluation.</P>
              <P>(B) The transmittal memorandum shall include at least the following:</P>
              <P>(<E T="03">1</E>) A list of the names of the organizations submitting proposals;</P>
              <P>(<E T="03">2</E>) A reference to the need to preserve the integrity of the source selection process;</P>
              <P>(<E T="03">3</E>) A statement that only the contracting officer is to conduct discussions.</P>
              <P>(<E T="03">4</E>) A requirement for a technical evaluation report in accordance with paragraph (a)(3)(vi) of this section; and</P>
              <P>(<E T="03">5</E>) The establishment of a date for receipt of the technical evaluation report.</P>
              <P>(iv) Convening the technical evaluation panel.</P>
              <P>(A) Normally, the technical evaluation panel will convene to evaluate the proposals. However, there may be situations when the contracting officer determines that it is not feasible for the panel to convene. Whenever this decision is made, care must be taken to assure that the technical review is closely monitored to produce acceptable results.</P>

              <P>(B) When a panel is convened, the chairperson is responsible for the control of the technical proposals provided to him/her by the contracting officer for use during the evaluation process. The chairperson will generally distribute the technical proposals prior to <PRTPAGE P="37"/>the initial panel meeting and will establish procedures for securing the proposals whenever they are not being evaluated to insure their confidentiality. After the evaluation is complete, all proposals must be returned to the contracting officer by the chairperson.</P>
              <P>(C) The contracting officer shall address the initial meeting of the panel and state the basic rules for conducting the evaluation. The contracting officer shall provide written guidance to the panel if he/she is unable to attend the initial panel meeting. The guidance should include:</P>
              <P>(<E T="03">1</E>) Explanation of conflicts of interest;</P>
              <P>(<E T="03">2</E>) The necessity to read and understand the solicitation, especially the statement of work and evaluation criteria, prior to reading the proposals;</P>
              <P>(<E T="03">3</E>) The need for evaluators to restrict the review to only the solicitation and the contents of the technical proposals;</P>
              <P>(<E T="03">4</E>) The need for each evaluator to review all the proposals;</P>
              <P>(<E T="03">5</E>) The need to watch for ambiguities, inconsistencies, errors, and deficiencies which should be surfaced during the evaluation process;</P>
              <P>(<E T="03">6</E>) An explanation of the evaluation process and what will be expected of the evaluators throughout the process;</P>
              <P>(<E T="03">7</E>) The need for the evaluators to be aware of the requirement to have complete written documentation of the individual strengths and weaknesses which affect the scoring of the proposals; and</P>
              <P>(<E T="03">8</E>) An instruction directing the evaluators that, until the award is made, information concerning the acquisition must not be disclosed to any person not directly involved in the evaluation process.</P>
              <P>(v) Rating and ranking of proposals. The evaluators will individually read each proposal, describe tentative strengths and weaknesses, and independently develop preliminary scores in relation to each evaluation factor set forth in the solicitation. After this has been accomplished, the evaluators shall discuss in detail the individual strengths and weakness described by each evaluator and, if possible, arrive at a common understanding of the major strengths and weaknesses and the potential for correcting each offeror's weakness(es). Each evaluator will score each proposal, and then the technical evaluation panel will collectively rank the proposals. Generally, ranking will be determined by adding the numerical scores assigned to the evaluation factors and finding the average for each offeror. The evaluators should then identify whether each proposal is acceptable or unacceptable. Predetermined cutoff scores shall not be employed.</P>
              <P>(vi) Technical evaluation report. A technical evaluation report shall be prepared and furnished to the contracting officer by the chairperson and maintained as a permanent record in the contract file. The report must reflect the ranking of the proposals and identify each proposal as acceptable or unacceptable. The report must also include a narrative evaluation specifying the strengths and weaknesses of each proposal, a copy of each signed rating sheet, and any reservations, qualifications, or areas to be addressed that might bear upon the selection of sources for negotiation and award. Concrete technical reasons supporting a determination of unacceptability with regard to any proposal must be included. The report should also include specific points and questions which are to be raised in discussions or negotiations.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.306</SECTNO>
              <SUBJECT>Exchanges with offerors after receipt of proposals.</SUBJECT>
              <P>(d) <E T="03">Exchanges with offerors after establishment of the competitive range.</E> The contracting officer and project officer should discuss the uncertainties and/or deficiencies that are included in the technical evaluation report for each proposal in the competitive range. Technical questions should be developed by the project officer and/or the technical evaluation panel and should be included in the technical evaluation report. The management, past performance and cost or price questions should be prepared by the contracting officer with assistance from the project officer and/or panel as required. The method of requesting offerors in the competitive range to submit the additional information will vary depending on the complexity of the questions, the extent <PRTPAGE P="38"/>of additional information requested, the time needed to analyze the responses, and the time frame for making the award. However, to the extent practicable, all questions and answers should be in writing. Each offeror in the competitive range shall be given an equitable period of time for preparation of responses to questions to the extent practicable. The questions should be developed so as to disclose the ambiguities, uncertainties, and deficiencies of the offeror.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.307</SECTNO>
              <SUBJECT>Proposal revisions.</SUBJECT>
              <P>(b) Final proposal revisions are subject to a final evaluation of price or cost and other salient factors by the contracting officer and project officer with assistance from a cost/price analyst, and an evaluation of technical factors by the technical evaluation panel, as necessary. Proposals may be technically rescored and reranked by the technical evaluation panel and a technical evaluation report prepared. To the extent practicable, the evaluation shall be performed by the same evaluators who reviewed the original proposals. A final evaluation of past performance will be made by the contracting officer and project officer. The technical evaluation panel may be involved in the final evaluation of past performance if the panel is comprised solely of Government personnel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.370</SECTNO>
              <SUBJECT>Finalization of details with the selected source.</SUBJECT>
              <P>(a) After selection of the successful proposal, finalization of details with the selected offeror may be conducted if deemed necessary. However, no factor which could have any effect on the selection process may be introduced after the common cutoff date for receipt of final proposal revisions. The finalization process shall not in any way prejudice the competitive interest or rights of the unsuccessful offerors. Finalization of details with the selected offeror shall be restricted to definitizing the final agreement on terms and conditions, assuming none of these factors were involved in the selection process.</P>
              <P>(b) Caution must be exercised by the contracting officer to insure that the finalization process is not used to change the requirements contained in the solicitation, nor to make any other changes which would impact on the source selection decision. Whenever a material change occurs in the requirements, the competition must be reopened and all offerors submitting final proposal revisions must be given an opportunity to resubmit proposals based on the revised requirements. Whenever there is a question as to whether a change is material, the contracting officer should obtain the advice of technical personnel and legal counsel before reopening the competition. Significant changes in the offeror's cost proposal may also necessitate a reopening of competition if the changes alter the factors involved in the original selection process.</P>
              <P>(c) Should finalization details beyond those specified in paragraph (a) of this section be required for any reason, discussions must be reopened with all offerors submitting final proposal revisions.</P>
              <P>(d) Upon finalization of details, the contracting officer should obtain a confirmation letter from the successful offeror which includes any revisions to the technical proposal, the agreed to price or cost, and, as applicable, a certificate of current cost or pricing data.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.371</SECTNO>
              <SUBJECT>Contract preparation and award.</SUBJECT>
              <P>(a) The contracting officer must perform the following actions after finalization details have been completed:</P>
              <P>(1) Prepare the negotiation memorandum in accordance with 315.372;</P>
              <P>(2) Prepare the contract containing all agreed to terms and conditions and clauses required by law or regulation;</P>
              <P>(3) Include in the contract file the pertinent documents referenced in FAR 4.803; and</P>
              <P>(4) Obtain the appropriate approval of the proposed contract award(s) in accordance with subpart 304.71 and contracting activity procedures.</P>

              <P>(b) After receiving the required approvals, the contract should be transmitted to the prospective contractor for signature. The prospective contractor must be informed that the contract is not effective until accepted by the contracting officer.<PRTPAGE P="39"/>
              </P>
              <P>(c) The contract shall not be issued until the finance office certifies that the funds are available for obligation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.372</SECTNO>
              <SUBJECT>Preparation of negotiation memorandum.</SUBJECT>
              <P>The negotiation memorandum or summary of negotiations is a complete record of all actions leading to award of a contract and is prepared by the contract negotiator to support the source selection decision discussed in FAR 15.308. It should be in sufficient detail to explain and support the rationale, judgments, and authorities upon which all actions were predicated. The memorandum will document the negotiation process and reflect the negotiator's actions, skills, and judgments in concluding a satisfactory agreement for the Government. Negotiation memorandums shall contain discussion of the following or a statement of nonapplicability; however, information already contained in the contract file need not be reiterated. A reference to the document which contains the required information is acceptable.</P>
              <P>(a) <E T="03">Description of articles and services and period of performance.</E> A description of articles and services, quantity, unit price, total contract amount, and period of contract performance should be set forth ( if Supplemental Agreement—show previous contract amount as revised, as well as information with respect to the period of performance).</P>
              <P>(b) <E T="03">Acquisition planning.</E> Summarize or reference any acquisition planning activities that have taken place.</P>
              <P>(c) <E T="03">Synopsis of acquisition.</E> A statement as to whether the acquisition has or has not been publicized in accordance with FAR Subpart 5.2. A brief statement of explanation should be included with reference to the specific basis for exemption under the FAR, if applicable.</P>
              <P>(d) <E T="03">Contract type.</E> Provide sufficient detail to support the type of contractual instrument recommended for the acquisition. If the contract is a cost-sharing type, explain the essential cost-sharing features.</P>
              <P>(e) <E T="03">Extent of competition.</E> The extent to which full and open competition was solicited and obtained must be discussed. The discussion shall include the date of solicitation, sources solicited, and solicitation results. If a late proposal was received, discuss whether or not the late proposal was evaluated and the rationale for the decision.</P>
              <P>(f) <E T="03">Technical evaluation.</E> Summarize or reference the results presented in the technical evaluation report.</P>
              <P>(g) <E T="03">Business evaluation.</E> Summarize or reference results presented in the business report.</P>
              <P>(h) <E T="03">Past performance.</E> Summarize or reference results of past performance evaluation and reference checks.</P>
              <P>(i) <E T="03">Competitive range (if applicable).</E> Describe how the competitive range was determined and state the offerors who were included in the competitive range and the ones who were not.</P>
              <P>(j) <E T="03">Cost breakdown and analysis.</E> Include a complete cost breakdown together with the negotiator's analysis of the estimated cost by individual cost elements. The negotiator's analysis should contain information such as:</P>
              <P>(1) A comparison of cost factors proposed in the instant case with actual factors used in earlier contracts, using the same cost centers of the same supplier or cost centers of other sources having recent contracts for the same or similar item.</P>
              <P>(2) Any pertinent Government-conducted audit of the proposed contractor's record of any pertinent cost advisory report.</P>
              <P>(3) Any pertinent technical evaluation inputs as to necessity, allocability and reasonableness of labor, material and other direct expenses.</P>
              <P>(4) Any other pertinent information to fully support the basis for and rationale of the cost analysis.</P>
              <P>(5) If the contract is an incentive type, discuss all elements of profit and fee structure.</P>
              <P>(6) A justification of the reasonableness of the proposed contractor's estimated profit or fixed fee, considering the requirements of FAR 15.404-4 and HHSAR 315.404-4.</P>
              <P>(k) <E T="03">Cost realism.</E> Describe the cost realism analysis performed on proposals.</P>
              <P>(l) <E T="03">Government-furnished property and Government-provided facilities.</E> With respect to Government-furnished or Government-provided facilities, equipment, tooling, or other property, include the following:<PRTPAGE P="40"/>
              </P>
              <P>(1) Where no property is to be provided, a statement to that effect.</P>
              <P>(2) Where property is to be provided, a full description, the estimated dollar value, the basis of price comparison with competitors, and the basis of rental charge, if rental is involved.</P>
              <P>(3) Where the furnishing of any property or the extent has not been determined and is left open for future resolution, a detailed explanation.</P>
              <P>(m) <E T="03">Negotiations.</E> Include a statement as to the date and place negotiations were conducted, and identify members of both the Government and contractor negotiating teams by area of responsibility. Include negotiation details relative to the statement of work, terms and conditions, and special provisions. The results of cost or price negotiations must include the information required by FAR 31.109 and 15.406-3. In addition, if cost or pricing data was required to be submitted, the negotiation record must also contain the extent to which the contracting officer relied upon the factual cost or pricing data submitted and used in negotiating the cost or price.</P>
              <P>(n) <E T="03">Other considerations.</E> Include coverage of areas such as:</P>
              <P>(1) Financial data with respect to a contractor's capacity and stability.</P>
              <P>(2) Determination of contractor responsibility.</P>
              <P>(3) Details as to why the method of payment, such as progress payment, advance payment, etc., is necessary. Also cite any required D &amp; F's.</P>
              <P>(4) Information with respect to obtaining of a certificate of current cost or pricing data.</P>
              <P>(5) Other required special approvals.</P>
              <P>(6) If the contract represents an extension of previous work, the status of funds and performance under the prior contract(s) should be reflected. Also, a determination should be made that the Government has obtained enough actual or potential value from the work previously performed to warrant continuation with the same contractor. (Project officer should furnish the necessary information.)</P>
              <P>(7) If the contract was awarded by full and open competition, state where the unsuccessful offerors' proposals are filed.</P>
              <P>(8) State that equal opportunity provisions of the proposed contract have been explained to the contractor, and it is aware of its responsibilities. Also state whether or not a clearance is required.</P>
              <P>(9) If the contract is for services, a statement must be made, in accordance with FAR 37.103, that the services to be acquired are nonpersonal in nature.</P>
              <P>(o) <E T="03">Terms and conditions.</E> Identify the general and special clauses and conditions that are contained in the contract, such as option arrangements, incremental funding, anticipatory costs, deviations from standard clauses, etc. The basis and rationale for inclusion of any special terms and conditions must be stated and, where applicable, the document which granted approval for its use identified.</P>
              <P>(p) <E T="03">Recommendation.</E> A brief statement setting forth the recommendations for award.</P>
              <P>(q) <E T="03">Signature.</E> The memorandum must be signed by the contract negotiator who prepared the memorandum.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 315.4—Contract Pricing</HD>
            <SECTION>
              <SECTNO>315.404</SECTNO>
              <SUBJECT>Proposal analysis.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>315.404-2</SECTNO>
              <SUBJECT>Information to support proposal analysis.</SUBJECT>
              <P>(a)(2) When some or all information sufficient to determine the reasonableness of the proposed cost or price is already available or can be obtained by phone from the cognizant audit agency, contracting officers may request less-than-complete field pricing support (specifying in the request the information needed) or may waive in writing the requirement for audit and field pricing support by documenting the file to indicate what information is to be used instead of the audit report and the field pricing report.</P>

              <P>(3) When initiating audit and field pricing support, the contracting officer shall do so by sending a request to the cognizant administrative contracting officer (ACO), with an information copy to the cognizant audit office. When field pricing support is not available, the contracting officer shall initiate an audit by sending, in accordance with agency procedures, two (2) copies of the request to the OIG Office <PRTPAGE P="41"/>of Audits' Regional Audit Director. In both cases, the contracting officer shall, in the request:</P>
              <P>(i) Prescribe the extent of the support needed;</P>
              <P>(ii) State the specific areas for which input is required;</P>
              <P>(iii) Include the information necessary to perform the review (such as the offeror's proposal and the applicable portions of the solicitation, particularly those describing requirements and delivery schedules);</P>
              <P>(iv) Provide the complete address of the location of the offeror's financial records that support the proposal;</P>
              <P>(v) Identify the office having audit responsibility if other than the HHS Regional Audit Office; and</P>
              <P>(vi) Specify a due date for receipt of a verbal report to be followed by a written audit report. (If the time available is not adequate to permit satisfactory coverage of the proposal, the auditor shall so advise the contracting officer and indicate the additional time needed.) One copy of the audit request letter that was submitted to the Regional Audit Director and a complete copy of the contract price proposal shall be submitted to OIG/OA/DAC. Whenever, an audit review has been conducted by the Office of Audits, two (2) copies of the memorandum of negotiation shall be forwarded to OIG/OA/DAC by the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.404-4</SECTNO>
              <SUBJECT>Profit.</SUBJECT>
              <P>(b) <E T="03">Policy.</E> (1) The structured approach for determining profit or fee (hereafter referred to as profit) provides contracting officers with a technique that will ensure consideration of the relative value of the appropriate profit factors described in paragraph (d) of this section in the establishment of a profit objective for the conduct of negotiations. The contracting officer's analysis of these profit factors is based on information available to him/her prior to negotiations. The information is furnished in proposals, audit data, assessment reports, preaward surveys and the like. The structured approach also provides a basis for documentation of this objective, including an explanation of any significant departure from this objective in reaching an agreement. The extent of documentation should be directly related to the dollar value and complexity of the proposed acquisition. Additionally, the negotiation process does not require agreement on either estimated cost elements or profit elements. The profit objective is a part of an overall negotiation objective which, as a going-in objective, bears a distinct relationship to the cost objective and any proposed sharing arrangement. Since profit is merely one of several interrelated variables, the Government negotiator generally should not complete the profit negotiation without simultaneously agreeing on the other variables. Specific agreement on the exact weights or values of the individual profit factors is not required and should not be attempted.</P>
              <P>(ii) The profit-analysis factors set forth at FAR 15.404-4(d) shall be used for establishing profit objectives under the following listed circumstances. Generally, it is expected that this method will be supported in a manner similar to that used in the structured approach (profit factor breakdown and documentation of the profit objective); however, factors within FAR 15.404-4(d) considered inapplicable to the acquisition will be excluded from the profit objective.</P>
              <P>(A) Contracts not expected to exceed $100,000;</P>
              <P>(B) Architect-engineer contracts;</P>
              <P>(C) Management contracts for operations and/or maintenance of Government facilities;</P>
              <P>(D) Construction contracts;</P>
              <P>(E) Contracts primarily requiring delivery of material supplies by subcontractors;</P>
              <P>(F) Termination settlements; and</P>
              <P>(G) Cost-plus-award-fee contracts (However, contracting officers may find it advantageous to perform a structured profit analysis as an aid in arriving at an appropriate fee arrangement). Other exceptions may be made in the negotiation of contracts having unusual pricing situations, but shall be justified in writing by the contracting officer in situations where the structured approach is determined to be unsuitable.</P>
              <P>(c) <E T="03">Contracting officer responsibilities.</E> A profit objective is that part of the estimated contract price objective or <PRTPAGE P="42"/>value which, in the judgment of the contracting officer, constitutes an appropriate amount of profit for the acquisition being considered. This objective should realistically reflect the total overall task to be performed and the requirements placed on the contractor. Development of a profit objective should not begin until a thorough review of proposed contract work has been made; a review of all available knowledge regarding the contractor pursuant to FAR subpart 9.1, including audit data, preaward survey reports and financial statements, as appropriate, has been conducted; and an analysis of the contractor's cost estimate and comparison with the Government's estimate or projection of cost has been made.</P>
              <P>(d) <E T="03">Profit—analysis factors</E> (1) <E T="03">Common factors.</E> The following factors shall be considered in all cases in which profit is to be negotiated. The weight ranges listed after each factor shall be used in all instances where the structured approach is used.</P>
              <GPOTABLE CDEF="s40,xs60" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">Profit factors</CHED>
                  <CHED H="1">Weight ranges (in percent)</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="11">Contractor effort:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Material acquisition</ENT>
                  <ENT>1 to 5.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Direct labor</ENT>
                  <ENT>4 to 15.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Overhead</ENT>
                  <ENT>4 to 9.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">General management (G&amp;A)</ENT>
                  <ENT>4 to 8.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Other costs</ENT>
                  <ENT>1 to 5.</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Other factors:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Cost risk</ENT>
                  <ENT>0 to 7.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Investment</ENT>
                  <ENT>−2 to +2.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Performance</ENT>
                  <ENT>−1 to +1.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Socioeconomic programs</ENT>
                  <ENT>−.5 to +.5.</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Special situations.</ENT>
                </ROW>
              </GPOTABLE>
              <P>(i) Under the structured approach, the contracting officer shall first measure “Contractor Effort” by the assignment of a profit percentage within the designated weight ranges to each element of contract cost recognized by the contracting officer. The amount calculated for the cost of money for facilities capital is not to be included for the computation of profit as part of the cost base. The suggested categories under “Contractor Effort” are for reference purposes only. Often individual proposals will be in a different format, but since these categories are broad and basic, they provide sufficient guidance to evaluate all other items of cost.</P>
              <P>(ii) After computing a total dollar profit for “Contractor Effort,” the contracting officer shall then calculate the specific profit dollars assigned for cost risk, investment, performance, socioeconomic programs, and special situations. This is accomplished by multiplying the total Government Cost Objective, exclusive of any cost of money for facilities capital, by the specific weight assigned to the elements within the “Other Factors” category. Form HHS-674, Structured Approach Profit/Fee Objective, should be used, as appropriate, to facilitate the calculation of this profit objective. Form HHS-674 is illustrated in 353.370-674.</P>
              <P>(iii) In making a judgment of the value of each factor, the contracting officer should be governed by the definition, description, and purpose of the factors together with considerations for evaluating them.</P>
              <P>(iv) The structured approach was designed for arriving at profit objectives for other than nonprofit organizations. However, if appropriate adjustments are made to reflect differences between profit and nonprofit organizations, the structured approach can be used as a basis for arriving at profit objectives for nonprofit organizations. Therefore, the structured approach, as modified in paragraph (d)(1)(iv)(B) of this section, shall be used to establish profit objectives for nonprofit organizations.</P>
              <P>(A) For purposes of this section, nonprofit organizations are defined as those business entities organized and operated exclusively for charitable, scientific, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual, and which are exempt from Federal income taxation under Section 501 of the Internal Revenue Code.</P>
              <P>(B) For contracts with nonprofit organizations where profit is involved, an adjustment of up to 3 percentage points will be subtracted from the total profit objective percentage. In developing this adjustment, it will be necessary to consider the following factors;</P>
              <P>(<E T="03">1</E>) Tax position benefits;</P>
              <P>(<E T="03">2</E>) Granting of financing through advance payments; and</P>
              <P>(<E T="03">3</E>) Other pertinent factors which may work to either the advantage or <PRTPAGE P="43"/>disadvantage of the contractor in its position as a nonprofit organization.</P>
              <P>(2) <E T="03">Contractor effort.</E> Contractor effort is a measure of how much the contractor is expected to contribute to the overall effort necessary to meet the contract performance requirement in an efficient manner. This factor, which is apart from the contractor's responsibility for contract performance, takes into account what resources are necessary and what the contractor must do to accomplish a conversion of ideas and material into the final service or product called for in the contract. 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 and quantity, and that the profit objective should reflect the extent and nature of the contractor's contribution to total performance. A major consideration, particularly in connection with experimental, developmental, or research work, is the difficulty or complexity of the work to be performed, and the unusual demands of the contract, such as whether the project involves a new approach unrelated to existing technology and/or equipment or only refinements to these items. The evaluation of this factor requires an analysis of the cost content of the proposed contract as follows:</P>
              <P>(i) <E T="03">Material acquisition.</E> (Subcontracted items, purchased parts, and other material.) Analysis of these cost items shall include an evaluation of the managerial and technical effort necessary to obtain the required subcontracted items, purchased parts, material or services. The contracting officer shall determine whether the contractor will obtain the items or services by routine order from readily available sources or by detailed subcontracts for which the prime contractor will be required to develop complex specifications. Consideration shall also be given to the managerial and technical efforts necessary for the prime contractor to select subcontractors and to perform subcontract administration functions. In application of this criterion, it should be recognized that the contribution of the prime contractor to its purchasing program may be substantial. Normally, the lowest unadjusted weight for direct material is 2 percent. A weighting of less than 2 percent would be appropriate only in unusual circumstances when there is a minimal contribution by the contractor.</P>
              <P>(ii) <E T="03">Direct labor.</E> (Professional, service, manufacturing and other labor). Analysis of the various labor categories of the cost content of the contract should include evaluation of the comparative quality and quantity of professional and semiprofessional talents, manufacturing and service skills, and experience to be employed. In evaluating professional and semiprofessional 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 nonprofessional effort. The assessment should consider the contribution this talent will provide toward the achievement of contract objectives. Since nonprofessional labor is relatively plentiful and rather easily obtained by the contractor and is less critical to the successful performance of contract objectives, it cannot be weighted nearly as high as professional or semiprofessional labor. Service contract labor should be evaluated in a like manner by assigning higher weights to engineering or professional type skills required for contract performance. Similarly, the variety of manufacturing and other categories of labor skills required and the contractor's manpower resources for meeting these requirements should be considered. For purposes of evaluation, categories of labor (<E T="03">i.e.,</E> quality control, receiving and inspection, etc.) which do not fall within the definition for professional, service or manufacturing labor may be categorized as appropriate. However, the same evaluation considerations as outlined in this paragraph will be applied.</P>
              <P>(iii) <E T="03">Overhead and general management</E> (G&amp;A). (A) Analysis of these overhead items of cost should include the evaluation of the makeup of these expenses and how much they contribute to contract performance. To the extent practicable, analysis should include a determination of the amount of labor <PRTPAGE P="44"/>within these overhead pools and how this labor should be treated if it were considered as direct labor under the contract. The allocable labor elements should be given the same profit considerations that they would receive if they were treated as direct labor. The other elements of these overhead pools should be evaluated to determine whether they are routine expenses, such as utilities and maintenance, and hence given lesser profit consideration, or whether they are significant contributing elements. The composite of the individual determinations in relation to the elements of the overhead pools will be the profit consideration given the pools as a whole. The procedure for assigning relative values to these overhead expenses differs from the method used in assigning values of the direct labor. The upper and lower limits assignable to the direct labor are absolute. In the case of overhead expenses, individual expenses may be assigned values outside the range as long as the composite ratio is within the range.</P>
              <P>(B) It is not necessary that the contractor's accounting system break down overhead expenses within the classifications of research overhead, other overhead pools, and general administrative expenses, unless dictated otherwise by Cost Accounting Standards (CAS). The contractor whose accounting system reflects only one overhead rate on all direct labor need not change its system (if CAS exempt) to correspond with these classifications. The contracting officer, in an evaluation of such a contractor's overhead rate, could break out the applicable sections of the composite rate which could be classified as research overhead, other overhead pools, and general and administrative expenses, and follow the appropriate evaluation technique.</P>
              <P>(C) Management problems surface in various degrees and the management expertise exercised to solve them should be considered as an element of profit. For example, a contract for a new program for research or an item which is on the cutting edge of the state of the art will cause more problems and require more managerial time and abilities of a higher order than a follow-on contract. If new contracts create more problems and require a higher profit weight, follow-ons should be adjusted downward because many of the problems should have been solved. In any event, an evaluation should be made of the underlying managerial effort involved on a case-by-case basis.</P>
              <P>(D) It may not be necessary for the contracting officer to make a separate profit evaluation of overhead expenses in connection with each acquisition action for substantially the same project with the same contractor. Where an analysis of the profit weight to be assigned to the overhead pool has been made, that weight assigned may be used for future acquisitions with the same contractor until there is a change in the cost composition of the overhead pool or the contract circumstances, or the factors discussed in paragraph (d)(2)(iii)(C) of this section are involved.</P>
              <P>(iv) <E T="03">Other costs.</E> Analysis of this factor should include all other direct costs associated with contractor performance (e.g., travel and relocation, direct support, and consultants). Analysis of these items of cost should include, the significance of the cost of contract performance, nature of the cost, and how much they contribute to contract performance. Normally, travel costs require minimal administrative effort by the contractor and, therefore, usually receive a weight no greater than 1%. Also, the contractor may designate individuals as “consultants” but in reality these individuals may be obtained by the contractor to supplement its workforce in the performance of routine duties required by contract. These costs would normally receive a minimum weight. However, there will be instances when the contractor may be required to locate and obtain the services of consultants having expertise in fields such as medicine or human services. In these instances, the contractor will be required to expend greater managerial and technical effort to obtain these services and, consequently, the costs should receive a much greater weight.</P>
              <P>(3) <E T="03">Other factors</E> (i) <E T="03">Contract cost risk.</E> The contract type employed basically determines the degree of cost risk assumed by the contractor. For example, <PRTPAGE P="45"/>where a portion of the risk has been shifted to the Government through cost-reimbursement provisions, unusual contingency provisions, or other risk-reducing measures, the amount of profit should be less than where the contractor assumes all the risk.</P>
              <P>(A) In developing the prenegotiation profit objective, the contracting officer will need to consider the type of contract anticipated to be negotiated and the contractor risk associated therewith when selecting the position in the weight range for profit that is appropriate for the risk to be borne by the contractor. This factor should be one of the most important in arriving at prenegotiation profit objective. 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 complexity of the task assumed by the contractor. This factor is specifically limited to the risk of contract costs. Thus, risks on the part of the contractor such as reputation, losing a commercial market, risk of losing potential profits in other fields, or any risk which falls on the contracting office, such as the risk of not acquiring a satisfactory report, are not within the scope of this factor.</P>
              <P>(B) The first and basic 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 through the selection of contract type. The extremes are a cost-plus-a-fixed-fee contract requiring the contractor to use its best efforts to perform a task and a firm fixed-price contract for a service or a complex item. A cost-plus-a-fixed-fee contract would reflect a minimum assumption of cost responsibility, whereas a firm-fixed-price contract would reflect a complete assumption of cost responsibility. Where proper contract selection has been made, the regard for risk by contract type would usually fall into the following percentage ranges:</P>
              <GPOTABLE CDEF="s40,7" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Percent</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Cost-reimbursement type contracts</ENT>
                  <ENT>0-3</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Fixed-price type contracts</ENT>
                  <ENT>2-7</ENT>
                </ROW>
              </GPOTABLE>
              <P>(C) The second determination is that of the reliability of the cost estimates. Sound price negotiation requires well-defined contract objectives and reliable cost estimates. Prior experience assists the contractor in preparing reliable cost estimates on new acquisitions for similar related efforts. 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.</P>
              <P>(D) The third determination is that of the difficulty of the contractor's task. The contractor's task can be difficult or easy, regardless of the type of contract.</P>
              <P>(E) Contractors are likely to assume greater cost risk only if contracting officers objectively analyze the risk incident to proposed contracts and are willing to compensate contractors for it. Generally, a cost-plus-fixed fee contract will not justify a reward for risk in excess of 0.5 percent, nor will a firm fixed-price contract justify a reward of less than the minimum in the structured approach. Where proper contract-type selection has been made, the reward for risk, by contract type, will usually fall into the following percentage ranges:</P>
              <P>(<E T="03">1</E>) Type of contract and percentage ranges for profit objectives developed by using the structured approach for research and development and manufacturing contracts:</P>
              <GPOTABLE CDEF="s40,xs45" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Percent</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Cost-Plus-fixed fee</ENT>
                  <ENT>0 to 0.5</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Cost-plus-incentive fee:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">With cost incentive only</ENT>
                  <ENT>1 to 2</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">With multiple incentives</ENT>
                  <ENT>1.5 to 3</ENT>
                </ROW>
                <ROW>
                  <ENT I="11">Fixed-price-incentive:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">With cost incentive only</ENT>
                  <ENT>2 to 4</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">With multiple incentives</ENT>
                  <ENT>3 to 5</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Prospective price redetermination</ENT>
                  <ENT>3 to 5</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">Firm fixed-price</ENT>
                  <ENT>5 to 7</ENT>
                </ROW>
              </GPOTABLE>
              <P>(<E T="03">2</E>) Type of contract and percentage ranges for profit objectives developed by using the structured approach for service contracts:</P>
              <GPOTABLE CDEF="s40,xs45" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Percent</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Cost-plus-fixed-fee</ENT>
                  <ENT>0 to 0.5</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Cost-plus-incentive fee</ENT>
                  <ENT>1 to 2</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Fixed-price incentive</ENT>
                  <ENT>2 to 3</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Firm fixed-price</ENT>
                  <ENT>3 to 4</ENT>
                </ROW>
              </GPOTABLE>
              <PRTPAGE P="46"/>
              <P>(F) These ranges may not be appropriate for all acquisitions. For instance, a fixed-price-incentive contract that is closely priced with a low ceiling price and high incentive share may be tantamount to a firm fixed-price contract. In this situation, the contracting officer may 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. On the other hand, a contract with a high ceiling and low incentive formula can be considered to contain cost-plus incentive-fee contract features. In this situation, the contracting officer may determine that the Government is retaining much of the contract cost responsibility and that the risk assumed by the contractor is minimal. Similarly, if a cost-plus-incentive-fee contract includes an unlimited downward (negative) fee adjustment on cost control, it could be comparable to a fixed-price-incentive contract. In such a pricing environment, the contracting officer may determine that the Government has transferred a greater amount of cost responsibility to the contractor than is typical under a normal cost-plus-incentive-fee contract.</P>
              <P>(G) The contractor's subcontracting program may have a significant impact on the contractor's acceptance or risk under a contract form. It could cause risk to increase or decrease in terms of both cost and performance. This consideration should be a part of the contracting officer's overall evaluation in selecting a factor to apply for cost risk. It may be determined, for instance, that the prime contractor has effectively transferred real cost risk to a subcontractor and the contract cost risk evaluation may, as a result, be below the range which would otherwise apply for the contract type being proposed. The contract cost risk evaluation should not be lowered, however, merely on the basis that a substantial portion of the contract costs represents subcontracts without any substantial transfer of contractor's risk.</P>
              <P>(H) In making a contract cost risk evaluation in an acquisition action that involves definitization of a letter contract, unpriced change orders, and unpriced orders under basic ordering agreements, consideration should be given to the effect on total contract cost risk as a result of having partial performance before definitization. Under some circumstances it may be reasoned that the total amount of cost risk has been effectively reduced. Under other circumstances it may be apparent that the contractor's cost risk remained substantially unchanged. To be equitable, the determination of 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 attendant circumstances—not just the portion of costs incurred or percentage of work completed prior to definitization.</P>
              <P>(I) Time and material and labor hour contracts will be considered to be cost-plus-a-fixed-fee contracts for the purpose of establishing profit weights unless otherwise exempt under paragraph (b)(1)(ii) of this section in the evaluation of the contractor's assumption of contract cost risk.</P>
              <P>(ii) <E T="03">Investment.</E> HHS encourages its contractors to perform their contracts with the minimum of financial, facilities, or other assistance from the Government. As such, it is the purpose of this factor to encourage the contractor to acquire and use its own resources to the maximum extent possible. The evaluation of this factor should include an analysis of the following:</P>
              <P>(A) <E T="03">Facilities.</E> (Including equipment). To evaluate how this factor contributes to the profit objective requires knowledge of the level of facilities utilization needed for contract performance, the source and financing of the required facilities, and the overall cost effectiveness of the facilities offered. Contractors who furnish their own facilities which significantly contribute to lower total contract costs should be provided with additional profit. On the other hand, contractors who rely on the Government to provide or finance needed facilities should receive a corresponding reduction in profit. Cases between these examples should be evaluated on their merits with either positive or negative adjustments, as appropriate, in profit being made. However, where a highly facilitized contractor is to perform a contract which does not <PRTPAGE P="47"/>benefit from this facilitization or where a contractor's use of its facilities has a minimum cost impact on the contract, profit need not be adjusted. When applicable, the prospective contractor's computation of facilities capital cost of money for pricing purposed under CAS 414 can help the contracting officer identify the level of facilities investment to be employed in contract performance.</P>
              <P>(B) <E T="03">Payments.</E> In analyzing this factor, consideration should be given to the frequency of payments by the Government to the contractor. The key to this weighting is to give proper consideration to the impact the contract will have on the contractor's cash flow. Generally, negative consideration should be given for advance payments and payments more frequent than monthly with maximum reduction being given as the contractor's working capital approaches zero. Positive consideration should be given for payments less frequent than monthly with additional consideration given for a capital turn-over rate on the contract which is less than the contractor's or the industry's normal capital turn-over rate.</P>
              <P>(iii) <E T="03">Performance.</E> (Cost-control and other past accomplishments.) The contractor's past performance should be evaluated in such areas as quality of service or product, meeting performance schedules, efficiency in cost control (including need for and reasonableness of cost incurred), accuracy and reliability of previous cost estimates, degree of cooperation by the contractor (both business and technical), timely processing of changes and compliance with other contractual provisions, and management of subcontract programs. Where a contractor has consistently achieved excellent results in these areas in comparison with other contractors in similar circumstances, this performance merits a proportionately greater opportunity for profit. Conversely, a poor record in this regard should be reflected in determining what constitutes a fair and reasonable profit.</P>
              <P>(iv) <E T="03">Federal socioeconomic programs.</E> This factor, which may apply to special circumstances or particular acquisitions, relates to the extent of a contractor's successful participation in Government sponsored programs such as small business, small disadvantaged business, women-owned small business, and energy conservation efforts. The contractor's policies and procedures which energetically support Government socioeconomic programs and achieve successful results should be given positive considerations. Conversely, failure or unwillingness on the part of the contractor to support Government socioeconomic programs should be viewed as evidence of poor performance for the purpose of establishing a profit objective.</P>
              <P>(v) <E T="03">Special situations</E> (A) <E T="03">Inventive and developmental contributions.</E> The extent and nature of contractor-initiated and financed independent development should be considered in developing the profit objective, provided that the contracting officer has made a determination that the effort will benefit the contract. The importance of the development in furthering health and human services purposes, the demonstrable initiative in determining the need and application of the development, the extent of the contractor's cost risk, and whether the development cost was recovered directly or indirectly from Government sources should be weighed.</P>
              <P>(B) <E T="03">Unusual pricing agreements.</E> Occasionally, unusual contract pricing arrangements are made with the contractor wherein it agrees to cost ceilings, e.g., a ceiling on overhead rates for conditions other than those discussed at FAR 42.707. In these circumstances, the contractor should receive favorable consideration in developing the profit objective.</P>
              <P>(C) <E T="03">Negative factors.</E> Special situations need not be limited to those which only increase profit levels. A negative consideration may be appropriate when the contractor is expected to obtain spin-off-benefits as a direct result of the contract (e.g., products or services with commercial application).</P>
              <P>(4) <E T="03">Facilities capital cost of money.</E> When facilities capital cost of money (cost of capital committed to facilities) is included as an item of cost in the contractor's proposal, a reduction in the profit objective shall be made in an <PRTPAGE P="48"/>amount equal to the amount of facilities capital cost of money allowed in accordance with the Facilities Capital Cost-of Money Cost Principal. If the contractor does not propose this cost, a provision must be inserted in the contract that facilities capital cost of money is not an allowable cost.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 315.6—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>315.605</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>

              <P>(d) Certification by offeror—To ensure against contacts between Department employees and prospective offerors which would exceed the limits of advance guidance set forth in FAR 15.604 resulting in an unfair advantage to an offeror, the contracting officer shall ensure that the following certification is furnished to the prospective offeror and the executed certification is included as part of the resultant unsolicited proposal:
              </P>
              <EXTRACT>
                <HD SOURCE="HD1">Unsolicited Proposal</HD>
                <HD SOURCE="HD2">Certification by Offeror</HD>
                <P>This is to certify, to the best of my knowledge and belief, that:</P>
                <P>(a) This proposal has not been prepared under Government supervision.</P>
                <P>(b) The methods and approaches stated in the proposal were developed by this offeror.</P>
                <P>(c) Any contact with employees of the Department of Health and Human Services has been within the limits of appropriate advance guidance set forth in FAR 15.604.</P>

                <P>(d) No prior commitments were received from departmental employees regarding acceptance of this proposal.
                </P>
                <FP SOURCE="FP-DASH">Date:</FP>
                
                <FP SOURCE="FP-DASH">Organization:</FP>
                
                <FP SOURCE="FP-DASH">Name:</FP>
                
                <FP SOURCE="FP-DASH">Title:</FP>
                
                <FP>(This certification shall be signed by a responsible official of the proposing organization or a person authorized to contractually obligate the organization.)</FP>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>315.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <P>(a) The HCA is responsible for establishing procedures to comply with FAR 15.606(a).</P>
              <P>(b) The HCA or his/her designee shall be the point of contract for coordinating the receipt and handling of unsolicited proposals.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.606-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
              <P>(d) An unsolicited proposal shall not be refused consideration merely because it was initially submitted as a grant application. However, contracts shall not be awarded on the basis of unsolicited proposals which have been rejected for grant support on the grounds that they lack scientific merit.</P>
            </SECTION>
            <SECTION>
              <SECTNO>315.609</SECTNO>
              <SUBJECT>Limited use of data.</SUBJECT>

              <P>The legend, Use and Disclosure of Data, prescribed in FAR 15.609(a) is to be used by the offeror to restrict the use of data for evaluation purposes only. However, data contained within the unsolicited proposal may have to be disclosed as a result of a request submitted pursuant to the Freedom of Information Act. Because of this possibility, the following notice shall be furnished to all prospective offerors of unsolicited proposals whenever the legend is provided in accordance with FAR 15.604(a)(7):
              </P>
              <EXTRACT>
                <P>The Government will attempt to comply with the “Use and Disclosure of Data” legend.</P>
                <P>However, the Government may not be able to withhold a record (data, document, etc.) nor deny access to a record requested by an individual (the public) when an obligation is imposed on the Government under the Freedom of Information Act, 5 U.S.C. 552, as amended. The Government determination to withhold or disclose a record will be based upon the particular circumstances involving the record in question and whether the record may be exempted from disclosure under the Freedom of Information Act. Records which the offeror considers to be trade secrets and commercial or financial information and privileged or confidential must be identified by the offeror as indicated in the referenced legend.</P>
              </EXTRACT>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 316</EAR>
          <HD SOURCE="HED">PART 316—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 316.3—Cost-Reimbursement Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>316.307</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 316.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
              <SECTNO>316.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
              <SECTNO>316.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <SECTNO>316.603-70</SECTNO>

              <SUBJECT>Information to be furnished when requesting authority to issue a letter contract.<PRTPAGE P="49"/>
              </SUBJECT>
              <SECTNO>316.603-71</SECTNO>
              <SUBJECT>Approval for modifications to letter contracts.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 316.7—Agreements</HD>
              <SECTNO>316.770</SECTNO>
              <SUBJECT>Unauthorized types of agreements.</SUBJECT>
              <SECTNO>316.770-1</SECTNO>
              <SUBJECT>Letter of intent.</SUBJECT>
              <SECTNO>316.770-2</SECTNO>
              <SUBJECT>Memorandums of understanding.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4243, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 316.3—Cost-Reimbursement Contracts</HD>
            <SECTION>
              <SECTNO>316.307</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) If the contract is with a hospital (profit or nonprofit) for research and development, modify the “Allowable Cost and Payment” clause at FAR 52.216-7 by deleting from paragraph (a) the words “Subpart 31.2 of the Federal Acquisition Regulation (FAR)” and substituting “45 CFR Part 74 Appendix E.”</P>
              <P>(j) The contracting officer shall insert the clause at 352.216-72, Additional Cost Principles, in all solicitations and resultant cost-reimbursement contracts.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 316.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
            <SECTION>
              <SECTNO>316.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>316.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>An official one level above the contracting officer shall execute the prescribed written statement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>316.603-70</SECTNO>
              <SUBJECT>Information to be furnished when requesting authority to issue a letter contract.</SUBJECT>
              <P>The following information should be included by the contracting officer in any memorandum requesting approval to issue a letter contract:</P>
              <P>(a) Name and address of proposed contractor.</P>
              <P>(b) Location where contract is to be performed.</P>
              <P>(c) Contract number, including modification number, if possible.</P>
              <P>(d) Brief description of work and services to be performed.</P>
              <P>(e) Performance or delivery schedule.</P>
              <P>(f) Amount of letter contract.</P>
              <P>(g) Estimated total amount of definitized contract.</P>
              <P>(h) Type of definitive contract to be executed (fixed price, cost-reimbursement, etc.)</P>
              <P>(i) Statement of the necessity and advantage to the Government of the use of the proposed letter contract.</P>
              <P>(j) Statement of percentage of the estimated cost that the obligation of funds represents. In rare instances where the obligation represents 50 percent or more of the proposed estimated cost of the acquisition, a justification for that obligation must be included which would indicate the basis and necessity for the obligation (e.g., the contractor requires a large initial outlay of funds for major subcontract awards or an extensive purchase of materials to meet an urgent delivery requirement). In every case, documentation must assure that the amount to be obligated is not in excess of an amount reasonably required to perform the work.</P>
              <P>(k) Period of effectiveness of a proposed letter contract. If more than 180 days, complete justification must be given.</P>
              <P>(l) Statement of any substantive matters that need to be resolved.</P>
            </SECTION>
            <SECTION>
              <SECTNO>316.603-71</SECTNO>
              <SUBJECT>Approval for modifications to letter contracts.</SUBJECT>
              <P>All letter contract modifications (amendments) must be approved one level above the contracting officer. Request for authority to issue letter contract modifications shall be processed in the same manner as requests for authority to issue letter contracts and shall include the following:</P>
              <P>(a) Name and address of the contractor.</P>
              <P>(b) Description of work and services.</P>
              <P>(c) Date original request was approved and indicate approving official.</P>
              <P>(d) Letter contract number and date issued.</P>
              <P>(e) Complete justification as to why the letter contract cannot be definitized at this time.</P>
              <P>(f) Complete justification as to why the level of funding must be increased.</P>

              <P>(g) Complete justification as to why the period of effectiveness is increased beyond 180 days, if applicable.<PRTPAGE P="50"/>
              </P>
              <P>(h) If the funding of the letter contract is to be increased to more than 50 percent of the estimated cost of the acquisition, the information required by 316.603-70(j) must be included.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 316.7—Agreements</HD>
            <SECTION>
              <SECTNO>316.770</SECTNO>
              <SUBJECT>Unauthorized types of agreements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>316.770-1</SECTNO>
              <SUBJECT>Letters of intent.</SUBJECT>
              <P>A letter of intent is an informal unauthorized agreement between the Government and a prospective contractor which indicates that products or services will be produced after completion of funding and/or other contractual formalities. Letters of intent are often solicited by prospective contractors or may be originated by Government personnel. Letters of intent are not authorized by the FAR and are prohibited for use by Department personnel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>316.770-2</SECTNO>
              <SUBJECT>Memorandums of understanding.</SUBJECT>
              <P>A “memorandum of understanding” is an unauthorized agreement, usually drafted during the course of negotiations, to modify mandatory FAR and HHSAR provisions in such a manner as to make them more acceptable to a prospective contractor. It may be used to bind the contracting officer in attempting to exercise rights given the Government under the contract, or may contain other matters directly contrary to the language of the solicitation or prospective contractual document. Use of memorandums of understanding is not authorized. Any change in a solicitation or contract shall be made by amendment or modification to that document. When a change to a prescribed contract clause is considered necessary, a deviation shall be requested.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 317</EAR>
          <HD SOURCE="HED">PART 317—SPECIAL CONTRACTING METHODS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 317.2—Options</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>317.201</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>317.204</SECTNO>
              <SUBJECT>Contracts.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 317.71—Supply and Service Acquisitions Under the Government Employees Training Act.</HD>
              <SECTNO>317.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>317.7101</SECTNO>
              <SUBJECT>Applicable regulations.</SUBJECT>
              <SECTNO>317.7102</SECTNO>
              <SUBJECT>Acquisition of training.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4244, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 317.2—Options</HD>
            <SECTION>
              <SECTNO>317.201</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>An option must:</P>
              <P>(a) Identify the supplies or services as a discrete option quantity in addition to the basic quantity of supplies or services to be delivered under the initial contract award;</P>
              <P>(b) Establish a price or specify a method of calculation which will make the price certain;</P>
              <P>(c) Be agreed to and included in the initial contract award; and</P>
              <P>(d) Permit the Government the right to exercise the option unilaterally.</P>
            </SECTION>
            <SECTION>
              <SECTNO>317.204</SECTNO>
              <SUBJECT>Contracts.</SUBJECT>
              <P>The total of the basic and option periods shall not exceed 10 years in the case of services and the total of the basic and option quantities shall not exceed the requirement for 5 years in the case of supplies. These limitations do not apply to information technology contracts. However, statutes applicable to various classes of contracts may place additional restrictions on the length of contracts.</P>
              <CITA>[70 FR 11583, Mar. 9, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 317.71—Supply and Service Acquisitions Under the Government Employees Training Act</HD>
            <SECTION>
              <SECTNO>317.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart provides alternate methods for obtaining training under the Government Employees Training Act (GETA), 5 U.S.C. Chapter 41.</P>
            </SECTION>
            <SECTION>
              <SECTNO>317.7101</SECTNO>
              <SUBJECT>Applicable regulations.</SUBJECT>

              <P>Basic policy, standards, and delegations of authority to approve training <PRTPAGE P="51"/>are contained in HHS Personnel Manual Instruction 410-1.</P>
            </SECTION>
            <SECTION>
              <SECTNO>317.7102</SECTNO>
              <SUBJECT>Acquisition of training.</SUBJECT>
              <P>(a) Off-the-shelf training, whether for individuals or for groups of employees, shall be acquired under the GETA by officials delegated authority in HHS Transmittal 95.5, Personnel Manual (3/30/95).</P>
              <P>(b) Training must be acquired through the contracting office if there are costs for training course development or for modification of off-the-shelf training courses.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="52"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 319</EAR>
          <HD SOURCE="HED">PART 319—SMALL BUSINESS PROGRAMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 319.2—Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>319.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 319.5—Set-Asides for Small Business</HD>
              <SECTNO>319.501</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>319.506</SECTNO>
              <SUBJECT>Withdrawing or modifying set-asides.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 319.7—Subcontracting With Small Business, Small Disadvantaged Business and Women-Owned Small Business Concerns</HD>
              <SECTNO>319.705</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer under the subcontracting assistance program.</SUBJECT>
              <SECTNO>319.705-5</SECTNO>
              <SUBJECT>Awards involving subcontracting plans.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4244, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 319.2—Policies</HD>
            <SECTION>
              <SECTNO>319.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>(d) The functional management responsibilities for the Department's Small Business Program, (small, HUBZone, small disadvantaged, and women-owned small business programs) are delegated to the Director of the Office of Small and Disadvantaged Business Utilization (OSDBU).</P>

              <P>(e) (1) The Department's Small Business Program shall be carried out by appointed small business specialists (SBS) at the OPDIV Level. Appointments, and termination of appointments, shall be made in writing by the head of the OPDIV after consultation and concurrence by the Director, OSDBU. The small business specialist shall be responsible directly to the appointing authority and shall be at an organizational level outside the direct acquisition chain of command, <E T="03">i.e.,</E> should report directly to the head of the OPDIV or designee. The Director, OSDBU will exercise functional management authority over small business specialists regarding the small business programs.</P>
              <P>(2) The head of each OPDIV shall appoint a qualified full-time small business specialist (SBS) in the following activities: Agency for Healthcare Research and Quality (AHRQ), Centers for Medicare &amp; Medicaid Services (CMS), Substance Abuse and Mental Health Services Administration (SAMHSA), Food and Drug Administration (FDA), Health Resources and Services Administration (HRSA), Indian Health Service (IHS), National Institutes of Health (NIH), Centers for Disease Control and Prevention (CDCP), and Program Support Center (PSC). A SBS shall also be appointed for the Office of the Secretary (OS). As deemed necessary, additional small business specialists may be appointed in larger contracting activities. When the volume of contracting does not warrant assignment of a full-time SBS, an individual shall be appointed as the specialist on a part-time basis. The responsibilities of this assignment shall take precedence over other responsibilities.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 319.5—Set-Asides For Small Business</HD>
            <SECTION>
              <SECTNO>319.501</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(d) Subsequent to the contracting officer's recommendation on Form HHS653, Small Business Set-Aside Review Form, the SBS shall review each proposed acquisition and either concur or non-concur with the contracting officer's recommendation. If the contracting officer disapproves the SBS's set-aside recommendation, the reasons must be documented on the Form HHS-653, and the form placed in the contract file. The contracting officer will make the final determination as to whether the proposed acquisition will be set-aside or not.</P>
            </SECTION>
            <SECTION>
              <SECTNO>319.506</SECTNO>
              <SUBJECT>Withdrawing or modifying set-asides.</SUBJECT>

              <P>(d) Immediately upon notice from the contracting officer, the SBS shall provide telephone notification regarding <PRTPAGE P="53"/>all set-aside withdrawals to the OSDBU Director.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 319.7—Subcontracting With Small Business, Small Disadvantaged Business and Women-Owned Small Business Concerns</HD>
            <SECTION>
              <SECTNO>319.705</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer under the subcontracting assistance program.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>319.705-5</SECTNO>
              <SUBJECT>Awards involving subcontracting plans.</SUBJECT>
              <P>(a)(3) The SBA PCR shall be allowed a period of one to five working days to review the contract award package, depending upon the circumstances and complexity of the individual acquisition.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 323</EAR>
          <HD SOURCE="HED">PART 323—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 323.70—Safety and Health</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>323.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>323.7001</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>323.7002</SECTNO>
              <SUBJECT>Actions required.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4245, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 323.70—Safety and Health</HD>
            <SECTION>
              <SECTNO>323.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes the use of a safety and health clause in contracts involving hazardous materials or operations, and provides procedures for administering safety and health provisions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>323.7001</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Various statutes and regulations (e.g. Walsh-Healy Act; Service Contract Act) require adherence to minimum safety and health standards by contractors engaged in potentially hazardous work. The guidance contained in FAR subpart 23.3 shall be used for hazardous materials as the primary reference. When the guidance is judged insufficient or does not meet the safety and health situation in the instant acquisition, this subpart shall be followed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>323.7002</SECTNO>
              <SUBJECT>Actions required.</SUBJECT>
              <P>(a) <E T="03">Contracting activities.</E> Contracting activities shall use the clause set forth in 352.223-70, or a clause reading substantially the same, in prospective contracts and subcontracts involving hazardous materials or operations for the following:</P>
              <P>(1) Services or products;</P>
              <P>(2) Research, development, or test projects;</P>
              <P>(3) Transportation of hazardous materials; and</P>
              <P>(4) Construction, including construction of facilities on the contractor's premises.</P>
              <P>(b) <E T="03">Safety officers.</E> OPDIV safety officers shall advise and assist initiators of acquisition requests and contracting officers in:</P>
              <P>(1) Determining whether safety and health provisions should be included in a prospective contract;</P>
              <P>(2) Evaluating a prospective contractor's safety and health programs; and</P>
              <P>(3) Conducting post-award reviews and surveillance to the extent deemed necessary.</P>
              <P>(c) <E T="03">Initiators.</E> Initiators of acquisition requests for items described in paragraph (a) of this section shall:</P>
              <P>(1) During the preparation of a request for contract, and in the solicitation, ensure that hazardous materials and operations to be used in the performance of the contract are clearly identified; and</P>
              <P>(2) During the period of performance:</P>
              <P>(i) Apprise the contracting office of any noncompliance with safety and health provisions identified in the contract; and</P>
              <P>(ii) Cooperate with the safety officer in conducting review and surveillance activities.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="54"/>
          <EAR>Pt. 324</EAR>
          <HD SOURCE="HED">PART 324—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 324.1—Protection of Individual Privacy</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>324.000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>324.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>324.103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 324.2—Freedom of Information Act</HD>
              <SECTNO>324.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 324.70—Confidentiality of Information</HD>
              <SECTNO>324.7001</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>324.7002</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>324.7003</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>324.7004</SECTNO>
              <SUBJECT>Required clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4245, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 324.1—Protection of Individual Privacy</HD>
            <SECTION>
              <SECTNO>324.000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This part prescribes policies and procedures that apply requirements of the Privacy Act of 1974 (5 U.S.C. 552a) (the Act) and OMB Circular A-130, Revised, November 30, 2000, to Government contracts and cites the Freedom of Information Act (5 U.S.C. 552, as amended).</P>
              <CITA>[70 FR 40, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>324.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) It is the Department's policy to protect the privacy of individuals to the maximum possible extent while permitting the exchange of records required to fulfill the Department's administrative and program responsibilities and its responsibilities for disclosing records to which the general public is entitled under the Freedom of Information Act (5 U.S.C. 552). The Privacy Act of 1974 and the Department's implementation under 45 CFR part 5b apply “when an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish any agency function* * *” The key factor is whether a departmental function is involved. Therefore, the Privacy Act requirements apply to a departmental contract when, under the contract, the contractor must maintain or operate a system of records to accomplish a departmental function.</P>
              <P>(e) The program official, and, as necessary, the official designated as the activity's Privacy Act Coordinator and the Office of General Counsel, shall determine the applicability of the Act to each proposed acquisition. The program official is required to include a statement in the request for contract indicating whether the Privacy Act is or is not applicable to the proposed acquisition.</P>
              <P>(f) Whenever the contracting officer is informed that the Privacy Act is not applicable, but the resultant contract will involve the collection of individually identifiable personal data by the contractor, the contracting officer shall include provisions to protect the confidentiality of the records and the privacy of individuals identified in the records (see subpart 324.70).</P>
            </SECTION>
            <SECTION>
              <SECTNO>324.103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) All requests for contract shall be reviewed by the contracting officer to determine whether the Privacy Act requirements are applicable. If applicable, the contracting officer shall include the solicitation notification and contract clause required by FAR 24.104 in the solicitation, and the contract clause in the resultant contract. In addition, the contracting officer shall ensure that the solicitation notification, contract clause, and other pertinent information specified in this subpart are included in any contract modification which results in the Privacy Act requirements becoming applicable to a contract.</P>
              <P>(b)(1) The contracting officer shall identify the system(s) of records on individuals in solicitations, contracts, and contract modifications to which the Privacy Act and the implementing regulations are applicable.</P>

              <P>(2) The contracting officer shall include a statement in the contract notifying the contractor that the contractor and its employees are subject to criminal penalties for violations of the Act (5 U.S.C. 552a(i)) to the same extent as employees of the Department. The statement shall require that <PRTPAGE P="55"/>the contractor assure that each contractor employee knows the prescribed rules of conduct, and each contractor employee is aware that he/she can be subjected to criminal penalties for violations of the Act. The contracting officer shall provide the contractor with a copy of the rules of conduct and other requirements set forth in 45 CFR part 5b.</P>
              <P>(c) The contracting officer shall include in the contract the disposition to be made of the system(s) of records on individuals upon completion of performance of the contract. For example, the contract may require the contractor to completely destroy the records, to remove personal identifiers, to turn the records over to the Department, or to keep the records but take certain measures to keep the records confidential and protect the individuals' privacy.</P>

              <P>(d) Whenever an acquisition is determined to be subject to the Privacy Act requirements, a “system notice,” prepared by the program official and describing the Department's intent to establish a new system of records on individuals, to make modifications to an existing system, or to disclose information in regard to an existing system, is required to be published in the <E T="04">Federal Register.</E> A copy of the “system notice” shall be attached to the request for contract or purchase request. If a “system notice” is not attached, the contracting officer shall inquire about its status and shall obtain a copy from the program official for inclusion in the contract file. If a “system notice” has not been published in the <E T="04">Federal Register,</E> the contracting officer may proceed with the acquisition but shall not award the contract until the “system notice” is published, and publication is verified by the contracting officer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 324.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>324.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) The Department's regulation implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, is set forth in 45 CFR part 5.</P>
              <P>(b) The contracting officer, upon receiving a FOIA request, shall follow Department and operating division procedures. As necessary, actions should be coordinated with the cognizant Freedom of Information (FOI) Officer and the Business and Administrative Law Division of the Office of General Counsel. The contracting officer must remember that only the FOI Officer has the authority to release or deny release of records. While the contracting officer should be familiar with the entire FOIA regulation in 45 CFR part 5, particular attention should be focused on §§ 5.65 and 5.66; also of interest are §§ 5.32, 5.33, and 5.35.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 324.70—Confidentiality of Information</HD>
            <SECTION>
              <SECTNO>324.7001</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>In performance of certain HHS contracts, it is necessary for the contractor to generate data, or be furnished data by the Government, which is about individuals, organizations, or Federal programs. This subpart and the accompanying contract clause require contractors to prudently handle disclosure of certain types of information not subject to the Privacy Act or the HHS human subject regulations set forth in 45 CFR part 46. This subpart and contract clause address the kinds of data to be generated by the contractor and/or data to be furnished by the Government that are considered confidential and how it should be treated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>324.7002</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>It is the policy of HHS to protect personal interests of individuals, corporate interests of non-governmental organizations, and the capacity of the Government to provide public services when information from or about individuals, organizations, or Federal agencies is provided to or obtained by contractors in performance of HHS contracts. This protection depends on the contractor's recognition and proper handling of the information. As a result, the “Confidentiality of Information” contract clause was developed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>324.7003</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>

              <P>(a) The “Confidentiality of Information” clause, set forth in 352.224-70, <PRTPAGE P="56"/>should be used in solicitations and resultant contracts whenever the need exists to keep information confidential. Examples of situations where the clause may be appropriate include:</P>
              <P>(1) Studies performed by the contractor which generate information or involve Government-furnished information that is personally identifiable, such as medical records, vital statistics, surveys, and questionnaires;</P>
              <P>(2) Contracts which involve the use of salary structures, wage schedules, proprietary plans or processes, or confidential financial information of organizations other than the contractor's; and</P>
              <P>(3) Studies or research which may result in preliminary or invalidated findings which, upon disclosure to the public, might create erroneous conclusions which, if acted upon, could threaten public health or safety.</P>
              <P>(b) With regard to protecting individuals, this subpart and contract clause are not meant to regulate or control the method of selecting subjects and performing studies or experiments involving them. These matters are dealt with in the HHS regulation entitled “Protection of Human Subjects,” 45 CFR Part 46. If a system of records under contract, or portions thereof, is determined to be subject to the requirements of the Privacy Act, in accordance with FAR 24.1 and 324.1 and Title 45 CFR part 5b, the procedures cited in those references are applicable and the Privacy Act contract clause shall be included in the contract. If the contract also involves confidential information, as described in this section, which is not subject to the Privacy Act, the contract shall include the “Confidentiality of Information” clause in addition to the Privacy Act clause.</P>
            </SECTION>
            <SECTION>
              <SECTNO>324.7004</SECTNO>
              <SUBJECT>Required clause.</SUBJECT>
              <P>The clause set forth in 352.224-70 shall be included in any RFP and resultant contract(s) where it has been determined that confidentiality of information provisions may apply. Any RFP announcing the intent to include this clause in any resultant contract(s) shall indicate, as specifically as possible, the types of data which would be covered and requirements for handling the data.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 325</EAR>
          <HD SOURCE="HED">PART 325—FOREIGN ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 325.1—Buy American Act—Supplies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>325.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>325.108</SECTNO>
              <SUBJECT>Excepted articles, materials, and supplies.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 325.3—Balance of Payments Program</HD>
              <SECTNO>325.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4247, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 325.1—Buy American Act—Supplies</HD>
            <SECTION>
              <SECTNO>325.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(b) The head of the contracting activity (not delegable) shall make the determinations required by FAR 25.102(a)(1) through (5) and 25.102(b)(2).</P>
            </SECTION>
            <SECTION>
              <SECTNO>325.108</SECTNO>
              <SUBJECT>Excepted articles, materials, and supplies.</SUBJECT>
              <P>(b) Articles, materials, and supplies not listed in FAR 25.108(d) may be excepted only after a written determination has been made by the head of the contracting activity (not delegable). These determinations are required only in instances where it has been determined that only suppliers of foreign source end items shall be solicited. However, approvals and determinations covering individual acquisitions in the following categories may be made by the contracting officer:</P>
              <P>(1) Acquisition of spare and replacement parts for foreign manufactured items, if the acquisition must be restricted to the original manufacturer or its supplier; and</P>
              <P>(2) Acquisition of foreign drugs when it has been determined, in writing, by the responsible program official, that only the requested foreign drug will fulfill the requirement.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="57"/>
            <HD SOURCE="HED">Subpart 325.3—Balance of Payments Program</HD>
            <SECTION>
              <SECTNO>325.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>All determinations addressed in FAR 25.302 shall be made by the head of the contracting activity (not delegable).</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="58"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 328</EAR>
          <HD SOURCE="HED">PART 328—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 328.3—Insurance</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>328.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>328.311</SECTNO>
              <SUBJECT>Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.</SUBJECT>
              <SECTNO>328.311-2</SECTNO>
              <SUBJECT>Agency solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4247, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 328.3—Insurance</HD>
            <SECTION>
              <SECTNO>328.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>It is Department policy to limit the Government's reimbursement of its contractors' liability to third persons for claims not covered by insurance in cost-reimbursement contracts to the Limitation of Funds or Limitation of Cost clause of the contract. In addition, the amount of the Government's reimbursement will be limited to final judgments or settlements approved in writing by the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>328.311</SECTNO>
              <SUBJECT>Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>328.311-2</SECTNO>
              <SUBJECT>Agency solicitation provisions and contract clauses.</SUBJECT>
              <P>The contracting officer shall insert the clause at 352.228-7, Insurance—Liability to Third Persons, in all solicitations and resulting cost-reimbursement contracts, in lieu of the clause at FAR 52.228-7 required by FAR 28.311-1. This is an authorized deviation.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 330</EAR>
          <HD SOURCE="HED">PART 330—COST ACCOUNTING STANDARDS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 330.2—CAS Program Requirements</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>330.201</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
              <SECTNO>330.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4247, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 330.2—CAS Program Requirements</HD>
            <SECTION>
              <SECTNO>330.201</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>330.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>(c) The requirements of FAR 30.201-5 shall be exercised by the Director, Office of Acquisition Management (DOAM). Requests for waivers shall be forwarded through normal acquisition channels to the DOAM.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 332</EAR>
          <HD SOURCE="HED">PART 332—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 332.4—Advance Payments for Non-Commercial Items</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>332.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>332.403</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>332.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
              <SECTNO>332.409</SECTNO>
              <SUBJECT>Contracting officer action.</SUBJECT>
              <SECTNO>332.409-1</SECTNO>
              <SUBJECT>Recommendation for approval.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 332.5—Progress Payments Based on Costs</HD>
              <SECTNO>332.501</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>332.501-2</SECTNO>
              <SUBJECT>Unusual progress payments.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 332.7—Contract Funding</HD>
              <SECTNO>332.702</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>332.703</SECTNO>
              <SUBJECT>Contract funding requirements.</SUBJECT>
              <SECTNO>332.703-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>332.704</SECTNO>
              <SUBJECT>Limitations of cost or funds.</SUBJECT>
              <SECTNO>332.705</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>332.705-2</SECTNO>
              <SUBJECT>Clauses for limitation of costs or funds.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 332.9—Prompt Payment</HD>
              <SECTNO>332.902</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4247, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 332.4—Advance Payments for Non-Commercial Items</HD>
            <SECTION>
              <SECTNO>332.402</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>(e) The determination that the making of an advance payment is in the <PRTPAGE P="59"/>public interest (see FAR 32.402(c)(1)(iii)(A)) shall be made by the respective chief of the contracting office (CCO)(not delegable).</P>
            </SECTION>
            <SECTION>
              <SECTNO>332.403</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>All contracts for research work with educational institutions located in the United States shall provide for financing by use of advance payments, in reasonable amounts, unless otherwise prohibited by law.</P>
            </SECTION>
            <SECTION>
              <SECTNO>332.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
              <P>(d) The HCA (not delegable) is authorized to make the determinations in FAR 32.407(d) and as follows. In addition to the interest-free advance payments for the types of contracts listed in FAR 32.407(d), advance payments without interest may be approved for nonprofit contracts which are without fee with educational institutions and other nonprofit organizations, whether public or private, which are for the performance of work involving health services, educational programs, or social service programs, including, but not limited to, programs such as:</P>
              <P>(1) Community health representative services for an Indian Tribe or Band;</P>
              <P>(2) Narcotic addict rehabilitative services;</P>
              <P>(3) Comprehensive health care service program for Model Neighborhood programs;</P>
              <P>(4) Planning and development of health maintenance organizations;</P>
              <P>(5) Dissemination of information derived from educational research;</P>
              <P>(6) Surveys or demonstrations in the field of education;</P>
              <P>(7) Producing or distributing educational media for handicapped persons including captioned films for the hearing impaired;</P>
              <P>(8) Operation of language or area centers;</P>
              <P>(9) Conduct of biomedical research and support services;</P>
              <P>(10) Research surveys or demonstrations involving the training and placement of health manpower and health professionals, and dissemination of related information; and</P>
              <P>(11) Surveys or demonstrations in the field of social service.</P>
            </SECTION>
            <SECTION>
              <SECTNO>332.409</SECTNO>
              <SUBJECT>Contracting officer action.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>332.409-1</SECTNO>
              <SUBJECT>Recommendation for approval.</SUBJECT>
              <P>The information in FAR 32.409-1 (or FAR 32.409-2) shall be transmitted to the HCA in the form of a briefing memorandum.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 332.5—Progress Payments Based on Cost</HD>
            <SECTION>
              <SECTNO>332.501</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>332.501-2</SECTNO>
              <SUBJECT>Unusual progress payments.</SUBJECT>
              <P>(a)(3) The approval of an unusual progress payment shall be made by the head of the contracting activity (HCA)(not delegable).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 332.7—Contract Funding</HD>
            <SECTION>
              <SECTNO>332.702</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>An incrementally funded contract is a contract in which the total work effort is to be performed over multiple time periods and funds are allotted to cover discernible phases or increments of performance.</P>
              <P>(a) Incremental funding may be applied to cost-reimbursement type contracts for the acquisition of research and development and other types of nonpersonal, nonseverable services. It shall not be applied to contracts for construction services, architect-engineer services, or severable services. Incremental funding allows nonseverable cost-reimbursement contracts, awarded for more than one year, to be funded from succeeding fiscal years.</P>
              <P>(b) It is departmental policy that contracts for projects of multiple year duration be fully funded, whenever possible, to cover the entire project. However, incrementally funded contracts may be used when:</P>
              <P>(1) A project, which is part of an approved program, is anticipated to be of multiple year duration, but funds are not currently available to cover the entire project;</P>

              <P>(2) The project represents a valid need for the fiscal year in which the contract is awarded and of the succeeding fiscal years of the project's duration, during which additional funds may be obligated by increasing the allotment to the contract;<PRTPAGE P="60"/>
              </P>
              <P>(3) The project is so significant to the approved program that there is reasonable assurance that it will command a high priority for proposed appropriations to cover the entire multiple year duration; and</P>
              <P>(4) The statement of work is specific and is defined by separate phases or increments so that, at the completion of each, progress can be effectively measured.</P>
            </SECTION>
            <SECTION>
              <SECTNO>332.703</SECTNO>
              <SUBJECT>Contract funding requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>332.703-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(b) The following general guidelines are applicable to incrementally funded contracts:</P>

              <P>(1) The estimated total cost of the project (all planned phases or increments) is to be taken into consideration when determining the requirements which must be met before entering into the contract; <E T="03">i.e.,</E> justification for noncompetitive acquisition, approval or award, etc.</P>
              <P>(2) The RFP and resultant contract are to include a statement of work which describes the total project covering the proposed multiple year period of performance and indicating timetables consistent with planned phases or increments and corresponding allotments of funds.</P>
              <P>(3) Offerors will be expected to respond to RFPs with technical and cost proposals for the entire project indicating distinct break-outs of the planned phases or increments, and the multiple year period of performance.</P>
              <P>(4) Negotiations will be conducted based upon the total project, including all planned phases or increments, and the multiple year period of performance.</P>
              <P>(5) Sufficient funds must be obligated under the basic contract to cover no less than the first year of performance, unless the contracting officer determines it is advantageous to the Government to fund the contract for a lesser period. In that event, the contracting officer shall ensure that the obligated funds are sufficient to cover a complete phase or increment of performance representing a material and measurable part of the total project, and the contract period shall be reduced accordingly.</P>
              <P>(6) Because of the magnitude of the scope of work and multiple year period of performance under an incrementally funded contract, there is a critical need for careful program planning. Program planning must provide for appropriate surveillance of the contractor's performance and adequate controls to ensure that projected funding will not impinge on the program office's ability to support, within anticipated appropriations, other equally important contract or grant programs.</P>
              <P>(7) An incrementally funded contract must contain precise requirements for progress reports to enable the project officer to effectively monitor the contract. The project officer should be required to prepare periodic performance evaluation reports to facilitate the program office's ultimate decision to allot additional funds under the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>332.704</SECTNO>
              <SUBJECT>Limitation of cost or funds.</SUBJECT>
              <P>For detailed instruction regarding administrative actions in connection with anticipated cost overruns, see subpart 342.71</P>
            </SECTION>
            <SECTION>
              <SECTNO>332.705</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>332.705-2</SECTNO>
              <SUBJECT>Clauses for limitation of costs or funds.</SUBJECT>

              <P>(c)(1) When using the Limitation of Funds clause (FAR 52.232-22) in the solicitation and resultant incrementally funded contract, the contracting officer shall insert the following legend between the clause title and the clause text:
              </P>
              <EXTRACT>
                <FP>(This clause supersedes the Limitation of Cost clause found in the General Provisions of this contract.)</FP>
              </EXTRACT>
              
              <P>(2) The contracting officer shall also include a clause reading substantially as that shown in 352.232-74 in the Special Provisions of the resultant incrementally funded contract.</P>
              <P>(3) The request for proposals must inform prospective offerors of the Department's intention to enter into an incrementally funded contract. Therefore, the contracting officer shall include the provision at 352.232-75 in the request for proposals whenever the use of incremental funding is contemplated.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="61"/>
            <HD SOURCE="HED">Subpart 332.9—Prompt Payment</HD>
            <SECTION>
              <SECTNO>332.902</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Fiscal office</E> means the office responsible for: determining whether interest penalties are due a contractor and, if so, the amount; determining whether an invoice offers a financially advantageous discount; maintaining records for and submission of prompt payment reports to the Deputy Assistant Secretary, Finance (DASF), ASAM, OS; and processing payments to the Treasury Department to allow for payment to a contractor when due. The fiscal office may fulfill the roles of the “designated billing office” and the “designated payment office.”</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 333</EAR>
          <HD SOURCE="HED">PART 333—PROTESTS, DISPUTES, AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 333.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>333.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>333.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <SECTNO>333.104</SECTNO>
              <SUBJECT>Protests to GAO.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 333.2—Disputes and Appeals</HD>
              <SECTNO>333.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>333.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
              <SECTNO>333.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <SECTNO>333.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <SECTNO>333.212-70</SECTNO>
              <SUBJECT>Formats.</SUBJECT>
              <SECTNO>333.213</SECTNO>
              <SUBJECT>Obligation to continue performance.</SUBJECT>
              <SECTNO>333.215-70</SECTNO>
              <SUBJECT>Additional contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4249, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 333.1—Protests</HD>
            <SECTION>
              <SECTNO>333.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) Contracting officers shall consider all protests or objections regarding the award of a contract, whether submitted before or after award, provided the protests are filed in a timely manner and are submitted by interested parties. To be considered timely, protests based on alleged improprieties in any type of solicitation which are apparent before bid opening or the closing date for receipt of proposals shall be filed prior to bid opening or the closing date for receipt of proposals. In the case of negotiated acquisitions, alleged improprieties which do not exist in initial solicitations, but which are subsequently incorporated by amendment, must be protested not later than the next closing date for receipt of proposals following the incorporation of the amendment. In other cases, protests shall be filed not later than ten (10) calendar days after the basis for protest is known or should have been known, whichever is earlier. Provided a protest has been filed initially with the contracting officer, any subsequent protest to the Secretary or GAO filed within ten (10) calendar days of notification of adverse action will be considered. Written confirmation of all oral protests shall be requested from protestants and must be timely filed.</P>
              <P>(g)(1) The Office of Acquisition Management (Division of Acquisition Policy (DAP)) has been designated as the headquarters office to serve as the liaison for protests lodged with GAO. Within the Division of Acquisition Policy (DAP), the Departmental Protest Control Officer (DPCO) has been designated as the individual to be contacted by GAO.</P>
              <P>(2) Each contracting activity shall designate a protest control officer to serve as an advisor to the contracting officer and to monitor protests from the time of initial notification until the protest has been resolved. The protest control officer should be a senior acquisition specialist in the headquarters acquisition staff office. In addition, contracting activities should designate similar officials within their principal components to the extent practicable and feasible. A copy of each appointment and termination of appointment of protest control officers shall be forwarded to the Director, Division of Acquisition Policy (DAP).</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>

              <P>(f)(1) The contracting officer is authorized to make the determination, using the criteria in FAR 33.104(b), to award a contract notwithstanding the protest after obtaining the concurrence of the contracting activity's protest control officer and the Office of General Counsel—Business and Administrative Law Division (OGC-BAL). If the protest has been lodged with the Secretary, is addressed to the Secretary, <PRTPAGE P="62"/>or requests referral to the Secretary, approval shall also be obtained from the Director, Division of Acquisition Policy (DAP) before making the award.</P>
              <P>(2) The contracting officer shall require written confirmation of any oral protest. To be considered timely, the written confirmation must be filed in accordance with the applicable provisions in 333.102(a). In the following cases, written protests received by the contracting officer before award shall be forwarded, through acquisition channels, to the DPCO for processing. Files concerning these protests shall be submitted in duplicate, or as otherwise specified by the DPCO and sent in the most expeditious manner, marked “IMMEDIATE ACTION—PROTEST BEFORE AWARD”, and contain the documentation referenced in 333.104(a)(3).</P>
              <P>(i) The protestant requests referral to the Secretary of Health and Human Services;</P>
              <P>(ii) The protest is known to have been lodged with the Comptroller General or the Secretary, or is addressed to either; or</P>
              <P>(iii) The contracting officer entertains some doubt as to the proper action regarding the protest or believes it to be in the best interest of the Government that the protest be considered by the Secretary or the Comptroller General. Otherwise, protests addressed to the contracting officer may be answered by the contracting officer, with the concurrence of the contracting activity's protest control officer and OGC-BAL.</P>
              <P>(3) Protests received after award shall be treated as indicated in FAR 33.103(b)(3).</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.104</SECTNO>
              <SUBJECT>Protests to GAO.</SUBJECT>
              <P>(a) <E T="03">General procedures.</E> (3) Protests lodged with GAO, whether before or after award, shall be processed by the DPCO. Protest files shall be prepared by the contracting office and distributed as follows: two copies to the DPCO, one copy to the contracting activity's protest control officer, and one copy to OGC-BAL. Files shall include the following documentation:</P>
              <P>(i) The contracting officer's statement of facts and circumstances, including a discussion of the merits of the protest, and conclusions and recommendations, including documentary evidence on which they are based.</P>
              <P>(ii) A copy of the IFB or RFP.</P>
              <P>(iii) A copy of the abstract of bids or proposals.</P>
              <P>(iv) A copy of the bid or proposal of the successful offeror to whom award has been made or is proposed to be made.</P>
              <P>(v) A copy of the bid or proposal of the protestant, if any.</P>
              <P>(vi) The current status of award. When award has been made, this shall include whether performance has commenced, shipment or delivery has been made, or a stop work order has been issued.</P>
              <P>(vii) A copy of any mutual agreement to suspend work on a no-cost basis, when appropriate (see FAR 33.104(c)(4)).</P>
              <P>(viii) Copies of the notice of protest given offerors and other parties when the notice is appropriate (see FAR 33.104(a)(2)).</P>
              <P>(ix) A copy of the technical evaluation report, when applicable, and a copy of each evaluator's rating for relevant proposals.</P>
              <P>(x) A copy of the negotiation memorandum, when applicable.</P>
              <P>(xi) The name and telephone number of the person in the contracting office who may be contacted for information relevant to the protest.</P>
              <P>(xii) A copy of the competitive range memorandum. and</P>
              <P>(xiii) Any document which is referred to in the contracting officer's statement of facts. The files shall be assembled in an orderly manner and shall include an index of enclosures.</P>
              <P>(4) The DPCO is responsible for making the necessary distributions referenced in FAR 33.104 (a)(4).</P>

              <P>(5) The contracting officer shall furnish the protest file containing the documentation specified in paragraph (a)(3) of this section, except the item in paragraph (a)(3)(i), to the DPCO within fourteen (14) calendar days from receipt of the protest. The contracting officer shall provide the documentation required by item (a)(3)(i) of this section to the DPCO within twenty-one (21) calendar days from receipt of the protest. Since the statute allows only a short time period in which to respond <PRTPAGE P="63"/>to protests lodged with GAO, the contracting officer shall handle each protest on a priority basis. The DPCO shall prepare the report and submit it and the protest file to GAO in accordance with FAR 33.104(a)(4)(i).</P>
              <P>(6) Since the DPCO will furnish the report to GAO, the protestor, and other interested parties, comments on the report from the protestor and other interested parties will be requested to be sent to the DPCO.</P>
              <P>(7) The Office of Acquisition Management (Division of Acquisition Policy (DAP)) has been designated as the headquarters office, and the DPCO as the individual, that GAO should contact concerning all protests lodged with GAO.</P>
              <P>(b) <E T="03">Protests before award.</E> (1) To make an award notwithstanding a protest, the contracting officer shall prepare a finding using the criteria in FAR 33.104(b)(1), have it executed by the head of the contracting activity (HCA)(not delegable), and forward it, along with a written request for approval to make the award, to the Director, Office of Acquisition Management and Policy (Director, OAMP).</P>
              <P>(2) If the request to make an award notwithstanding the protest is approved by the Director, OAMP, the DPCO shall notify GAO. Whether the request is approved or not, the DPCO shall telephonically notify the contracting activity's protest control officer of the decision of the Director, OAMP, and the contracting activity's protest control officer shall immediately notify the contracting officer. The DPCO shall confirm the decision by memorandum to the contracting activity's protest control officer.</P>
              <P>(4) The contracting officer shall prepare the protest file in accordance with paragraph (a)(3) of this section, and forward the required number of copies to the DPCO (see paragraph (a)(5) of this section).</P>
              <P>(c) <E T="03">Protests after award.</E> (2) If the contracting officer believes performance should be allowed to continue notwithstanding the protest, a finding shall be prepared by the contracting officer using the criteria in FAR 33.104(c)(2), executed by the HCA (not delegable), and forwarded, along with a written request for approval, to the Director, Division of Acquisition Policy (DAP). The same procedures for notification stated in paragraph (b)(2) of this section shall be followed.</P>
              <P>(6) The contracting officer shall prepare the protest file in accordance with paragraph (a)(3) of this section, and forward the required number of copies to the DPCO (see paragraph (a)(5) of this section).</P>
              <P>(d) <E T="03">Findings and notice.</E> The contracting officer shall perform the actions required by FAR 33.104 (d); however, notification to GAO and other interested parties shall be made by the DPCO.</P>
              <P>(g) <E T="03">Notice to GAO.</E> The Director, Office of Acquisition Management and Policy shall be the official to comply with the requirements of FAR 33.104 (g).</P>
              <P>(i) <E T="03">Express option.</E> When GAO invokes the express option, the contracting officer shall prepare the complete protest file as described in paragraph (a)(3) of this section, to include the item in paragraph (a)(3)(i), and deliver it (hand-carry, if necessary) to the DPCO in time to meet the submittal date established by GAO. The DPCO will notify the contracting officer of the submittal date after GAO has finalized its requirements.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 333.2—Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>333.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>(c) The Armed Services Board of Contract Appeals (ASBCA) has been designated by the Secretary as the authorized “Board” to hear and determine disputes for the Department.</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
              <P>The contracting officer shall submit any instance of a contractor's suspected fraudulent claim to the Office of the Inspector General for investigation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>

              <P>(a)(2) The contracting officer shall refer a proposed final decision to the Office of General Counsel, Business and Administrative Law Division (OGC-BAL), for advice as to the legal sufficiency and format before sending the final decision to the contractor. The <PRTPAGE P="64"/>contracting officer shall provide OGC-BAL with the pertinent documents with the submission of each proposed final decision.</P>
              <P>(a)(4)(v) When using the paragraph in FAR 33.211 (a)(4)(v), the contracting officer shall insert the words “Armed Services” before each mention of the term “Board of Contract Appeals”.</P>
              <P>(h) At any time within the period of appeal, the contracting officer may modify or withdraw his/her final decision. If an appeal from the final decision has been taken to the ASBCA, the contracting officer will forward his/her recommended action to OGC-BAL with the supplement to the contract file which supports the recommended correction or amendment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <P>(a) Appeals shall be governed by the rules set forth in the “Rules of the Armed Services Board of Contract Appeals”, or by the rules established by the U.S. Court of Federal Claims, as appropriate.</P>
              <P>(b) OGC-BAL is designated as the Government Trial Attorney to represent the Government in the defense of appeals before the ASBCA. A decision by the ASBCA will be transmitted by the Government Trial Attorney to the appropriate contracting officer for compliance in accordance with the ASBCA's decision.</P>
              <P>(c) If an appeal is filed with the ASBCA, the contracting officer shall assemble a file within 30 days of receipt of an appeal, or advice that an appeal has been filed, that consists of all documents pertinent to the appeal, including:</P>
              <P>(1) The decision and findings of fact from which the appeal is taken;</P>
              <P>(2) The contract, including specifications and pertinent modifications, plans and drawings;</P>
              <P>(3) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which the decision was issued;</P>
              <P>(4) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witness on the matter in dispute made prior to the filing of the notice of appeal with the Board; and</P>
              <P>(5) Any additional information considered pertinent. The contracting officer shall furnish the appeal file to the Government Trial Attorney for review and approval. After approval, the contracting officer shall prepare four copies of the file, one for the ASBCA, one for the appellant, one for the Government Trial Attorney, and one for the contracting office.</P>
              <P>(d) At all times after the filing of an appeal, the contracting officer shall render whatever assistance is requested by the Government Trial Attorney. When an appeal is set for hearing, the concerned contracting officer, acting under the guidance of the Government Trial Attorney, shall be responsible for arranging for the presence of Government witnesses and specified physical and documentary evidence at both the pre-hearing conference and hearing.</P>
              <P>(e) If a contractor which has filed an appeal with the ASBCA elects to accept fully the decision from which the appeal was taken, or any modification to it, and gives written notification of acceptance to the Government Trial Attorney or the concerned contracting officer, the Government Trial Attorney will notify the ASBCA of the disposition of the dispute in accordance with Rule 27 of the ASBCA.</P>
              <P>(f) If the contractor has elected to appeal to the U.S. Court of Federal Claims, the U.S. Department of Justice will represent the Department. However, the contracting officer shall still coordinate all actions through OGC-BAL.</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.212-70</SECTNO>
              <SUBJECT>Formats.</SUBJECT>

              <P>(a) The following format is suggested for use in transmitting appeal files to the ASBCA:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-DASH">Your reference:</FP>
                <FP>(Docket No.)</FP>
                
                <FP>(Name)</FP>
                
                <FP>Recorder, Armed Services Board of Contract Appeals</FP>
                
                <FP>Skyline Six</FP>
                <FP>5109 Leesburg Pike</FP>
                <FP>Falls Church, Virginia 22041</FP>
                <FP>Dear (Name):</FP>

                <P>Transmitted herewith are documents relative to the appeal under Contract No. ___ with the ______<PRTPAGE P="65"/>
                </P>
                <FP>(<E T="03">Name of contractor</E>)</FP>
                
                <FP>in accordance with the procedures under Rule 4. The Government Trial Attorney for this case is</FP>
                
                <FP SOURCE="FP-DASH"/>
                
                <FP SOURCE="FP-DASH"/>
                
                <FP>(<E T="03">Insert Division of Business and Administrative Law, Office of General Counsel, Department of Health and Human Services, 330 Independence Avenue, SW., Washington, DC 20201</E>).</FP>
                
                <FP>The request for payment of charges resulting from the processing of this appeal should be addressed to:</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>(Insert name and address of cognizant finance office.)</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>Sincerely yours,</FP>
                
                <FP>Contracting Officer</FP>
                <FP>Enclosures</FP>
              </EXTRACT>
              

              <P>(b) The following format is suggested for use in notifying the appellant that the appeal file was submitted to the ASBCA:
              </P>
              <EXTRACT>
                <FP>(Contractor Address)</FP>
                <FP SOURCE="FP-DASH"/>
                
                <FP SOURCE="FP-DASH"/>
                
                <FP>Dear ___:</FP>
                <P>An appeal file has been compiled relative to the appeal under Contract No. ___, and has been submitted to the Armed Services Board of Contract Appeals (ASBCA). The enclosed duplicate of the appeal file is identical to that submitted to the Board, except that contract documents which you already have been excluded. You may furnish or suggest any additional information deemed pertinent to the appeal to the Armed Services Board of Contract Appeals according to their rules.</P>
                <P>The ASBCA will provide you with further information concerning this appeal.</P>
                <FP>Sincerely yours,</FP>
                
                <FP>Contracting Officer</FP>
                <FP>Enclosure</FP>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>333.213</SECTNO>
              <SUBJECT>Obligation to continue performance.</SUBJECT>
              <P>(a) The Disputes clause at FAR 52.233-1 shall be used without the use of Alternate I. However, if the contracting officer determines that the Government's interest would be better served by use of paragraph (i) in Alternate I, he/she must request approval for its use from the chief of the contracting office.</P>
            </SECTION>
            <SECTION>
              <SECTNO>333.215-70</SECTNO>
              <SUBJECT>Additional contract clause.</SUBJECT>
              <P>Use the clause at 352.333-7001, Choice of Law (Overseas), in solicitations and contracts when contract performance will be outside the United States, its possessions, and Puerto Rico, except as otherwise provided for in a government-to-government agreement.</P>
              <CITA>[70 FR 40, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="66"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 334</EAR>
          <HD SOURCE="HED">PART 334—MAJOR SYSTEM ACQUISITION</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SECTION>
            <SECTNO>334.003</SECTNO>
            <SUBJECT>Responsibilities.</SUBJECT>
            <P>The Department's implementation of major system acquisitions should be conducted in accordance with OMB Circular A-109, Major System Acquisitions”.</P>
            <CITA>[66 FR 4251, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 335</EAR>
          <HD SOURCE="HED">PART 335—RESEARCH AND DEVELOPMENT CONTRACTING</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>335.070</SECTNO>
            <SUBJECT>Cost-sharing.</SUBJECT>
            <SECTNO>335.070-1</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SECTNO>335.070-2</SECTNO>
            <SUBJECT>Amount of cost-sharing.</SUBJECT>
            <SECTNO>335.070-3</SECTNO>
            <SUBJECT>Method of cost-sharing.</SUBJECT>
            <SECTNO>335.070-4</SECTNO>
            <SUBJECT>Contract award.</SUBJECT>
            <SECTNO>335.071</SECTNO>
            <SUBJECT>Special determinations and findings affecting research and development contracting.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4251, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>335.070</SECTNO>
            <SUBJECT>Cost-sharing.</SUBJECT>
          </SECTION>
          <SECTION>
            <SECTNO>335.070-1</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>(a) The use of cost-sharing type contracts should be encouraged to contribute to the cost of performing research where there is a probability that the contractor will receive present or future benefits from participation, such as, increased technical know-how, training to employees, acquisition of equipment, use of background knowledge in future contracts, etc. Cost-sharing is intended to serve the mutual interests of the Government and the performing organization by helping to assure efficient utilization of the resources available for the conduct of research projects and by promoting sound planning and prudent fiscal policies by the performing organization. Encouragement should be given to organizations to contribute to the cost of performing research under contracts unless the contracting officer determines that a request for cost-sharing would not be appropriate because of the following circumstances:</P>
            <P>(1) The particular research objective or scope of effort for the project is specified by the Government rather than proposed by the performing organization. This would usually include any formal Government request for proposals for a specific project.</P>
            <P>(2) The research effort has only minor relevance to the non-Federal activities of the performing organization, and the organization is proposing to undertake the research primarily as a service to the Government.</P>
            <P>(3) The organization has little or no non-Federal sources or funds from which to make a cost contribution. Cost-sharing should generally not be requested if cost-sharing would require the Government to provide funds through some other means (such as fees) to enable the organization to cost-share. It should be recognized that those organizations which are predominantly engaged in research and development and have little or no production or other service activities may not be in a favorable position to make a cost contribution.</P>
            <P>(b) The responsibility for negotiating cost-sharing is that of the contracting office. Each research contract file should show whether the contracting officer considered cost-sharing appropriate for that particular contract and in what amount. If cost-sharing was not considered appropriate, the file must indicate the factual basis for that decision, e.g., “Because the contractor will derive no benefits from this award that can be applied to its commercial activities, cost-sharing is not considered appropriate.” The contracting officer may wish to coordinate with the project officer before documenting this decision.</P>

            <P>(c) If the contracting officer considers cost-sharing to be appropriate for a research contract and the contractor refuses to accept this type of contract, the award may be made without cost-sharing, if the contracting officer concludes that payment of the <PRTPAGE P="67"/>full cost of the research effort is necessary in order to obtain the services of that particular contractor.</P>
          </SECTION>
          <SECTION>
            <SECTNO>335.070-2</SECTNO>
            <SUBJECT>Amount of cost-sharing.</SUBJECT>
            <P>When cost-sharing is determined to be appropriate, the following guidelines shall be utilized in determining the amount of cost participation by the contractor.</P>
            <P>(a) The amount of cost participation should depend to a large extent on whether the research effort or results are likely to enhance the performing organization's capability, expertise, or competitive position, and the value of this enhancement to the performing organization. It should be recognized that those organizations which are predominantly engaged in research and development have little or no production or other service activities and may not be in a favorable position to derive a monetary benefit from their research under Federal agreements. Therefore, contractor cost participation could reasonably range from as little as 1 percent or less of the total project cost, to more than 50 percent of the total project cost. Ultimately, the contracting officer should bear in mind that cost-sharing is a negotiable item. As such, the amount of cost-sharing should be proportional to the anticipated value of the contractor's gain.</P>
            <P>(b) If the performing organization will not acquire title or the right to use inventions, patents, or technical information resulting from the research project, it would generally be appropriate to obtain less cost-sharing than in cases in which the performer acquires these rights.</P>
            <P>(c) A fee or profit will usually not be paid to the performing organization if the organization is to contribute to the cost of the research effort, but the amount of cost-sharing may be reduced to reflect the fact that the organization is foregoing its normal fee or profit in the research. However, if the research is expected to be of only minor value to the performing organization and if cost-sharing is not required by statute, it may be appropriate for the performer to make a contribution in the form of a reduced fee or profit rather than sharing costs of the project.</P>
            <P>(d) The organization's participation may be considered over the total term of the project so that a relatively high contribution in one year may be offset by a relatively low contribution in another.</P>
            <P>(e) A relatively low degree of cost-sharing may be appropriate if, in the view of the operating divisions or their subordinate elements, an area of research requires special stimulus in the national interest.</P>
          </SECTION>
          <SECTION>
            <SECTNO>335.070-3</SECTNO>
            <SUBJECT>Method of cost-sharing.</SUBJECT>
            <P>Cost-sharing on individual contracts may be accomplished either by a contribution of part or all of one or more elements of allowable cost of the work being performed, or by a fixed amount or stated percentage of the total allowable costs of the project. Costs so contributed may not be charged to the Government under any other grant or contract (including allocations to other grants or contracts as part of any independent research and development program).</P>
          </SECTION>
          <SECTION>
            <SECTNO>335.070-4</SECTNO>
            <SUBJECT>Contract award.</SUBJECT>
            <P>In consonance with the Department's objectives of competition and support of the small business program, award of contracts should not be made solely on the basis of ability or willingness to cost-share. Awards should be made primarily on the contractor's competence and only after adequate competition has been obtained among large and small business organizations whenever possible. The offeror's willingness to share costs should not be considered in the technical evaluation process but as a business consideration, which is secondary to selecting the best qualified source.</P>
          </SECTION>
          <SECTION>
            <SECTNO>335.071</SECTNO>
            <SUBJECT>Special determinations and findings affecting research and development contracting.</SUBJECT>
            <P>OPDIV heads for health agencies shall sign individual and class determinations and findings for:</P>
            <P>(a) Acquisition or construction of equipment or facilities on property not owned by the United States pursuant to 42 U.S.C. 241(a)(7); and</P>
            <P>(b) Use of an indemnification provision in a research contract pursuant to 42 U.S.C. 241(a)(7).</P>
          </SECTION>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="68"/>
        <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        <PART>
          <EAR>Pt. 342</EAR>
          <HD SOURCE="HED">PART 342—CONTRACT ADMINISTRATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 342.7—Indirect Cost Rates</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>342.705</SECTNO>
              <SUBJECT>Final indirect cost rates.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 342.70—Contract Monitoring</HD>
              <SECTNO>342.7001</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>342.7002</SECTNO>
              <SUBJECT>Contract monitoring responsibilities.</SUBJECT>
              <SECTNO>342.7003</SECTNO>
              <SUBJECT>Withholding of contract payments.</SUBJECT>
              <SECTNO>342.7003-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>342.7003-2</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>342.7003-3</SECTNO>
              <SUBJECT>Withholding payments.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 342.71—Administrative Actions for Cost Overruns</HD>
              <SECTNO>342.7001</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>342.7101</SECTNO>
              <SUBJECT>Contract administration.</SUBJECT>
              <SECTNO>342.7101-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>342.7101-2</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>342.7102</SECTNO>
              <SUBJECT>Contract modifications.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4252, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 342.7—Indirect Cost Rates</HD>
            <SECTION>
              <SECTNO>342.705</SECTNO>
              <SUBJECT>Final indirect cost rates.</SUBJECT>
              <P>The Director, Division of Cost Allocation of the Program Support Center within the servicing HHS regional office has been delegated the authority to establish indirect cost rates, research patient care rates, and, as necessary, fringe benefit, computer, and other special costing rates for use in contracts and grants awarded to State and local governments, colleges and universities, hospitals, and other nonprofit organizations.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 342.70—Contract Monitoring</HD>
            <SECTION>
              <SECTNO>342.7001</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>Contract monitoring is an essential element of contract administration and the acquisition process. This subpart describes the Department's operating concepts regarding contract monitoring, performed jointly by the project officer and the contracting officer, to ensure that the required monitoring is performed, timely remedial action is taken when necessary, and a determination is made that contract objectives have been met.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7002</SECTNO>
              <SUBJECT>Contract monitoring responsibilities.</SUBJECT>
              <P>(a) Upon execution of the contract, the mutual obligations of the Government and the contractor are established by, and limited to, the written stipulations in the contract. Unless authorized by the contracting officer, HHS personnel shall not direct or request the contractor to assume any obligation or take any actions not specifically required by the contract. Only the contracting officer may impose a requirement which will result in a change to the contract. All contract changes must be directed in writing or confirmed in writing by the contracting officer.</P>
              <P>(b) The contracting officer is responsible for assuring compliance with all terms of the contract, especially the statutory, legal, business, and regulatory provisions. Whether or not a postaward conference is held, the contracting officer shall inform the contractor by letter (if not already stipulated by contract provisions) of the authorities and responsibilities of the Government personnel with whom the contractor will be dealing throughout the life of the contract.</P>
              <P>(c) The contracting officer must depend on program, technical, and other personnel for assistance and advice in monitoring the contractor's performance, and in other areas of postaward administration. The contracting officer must assure that responsibilities assigned to these personnel are understood and carried out. The individual roles and corresponding responsibilities typically involve, but are not limited to, the following:</P>

              <P>(1) The role of program and technical personnel in monitoring the contract to assist or advise the contracting officer (or act as his/her representative when so designated by the contracting officer) in activities such as:<PRTPAGE P="69"/>
              </P>
              <P>(i) Providing technical monitoring during contract performance, and issuing letters to the contractor and contracting officer relating to delivery, acceptance, or rejection in accordance with the terms of the contract;</P>
              <P>(ii) Assessing contractor performance, including inspection and testing of products and evaluation of reports and data;</P>
              <P>(iii) Recommending necessary changes to the schedule of work and period of performance in order to accomplish the objectives of the contract. This shall be accomplished by a written request to the contracting officer, together with an appropriate justification and funds availability citation;</P>
              <P>(iv) Reviewing invoices/vouchers and recommending approval/disapproval action by the contracting officer, to include comments regarding anything unusual discovered in the review;</P>
              <P>(v) Reviewing and recommending approval or disapproval of subcontractors, overtime, travel, and key personnel changes; and</P>
              <P>(vi) Participating, as necessary, in various phases of the contract closeout process.</P>
              <P>(2) The role of the project officer in performing required aspects of the contract monitoring process. In addition to those applicable activities set forth in paragraph (c)(1) of this section, the project officer shall:</P>
              <P>(i) Submit periodic reports to the contracting officer that concisely explain the status of the contract, and include recommended actions for any problems reported. Provide the contracting officer with written notification of evaluation and approval/disapproval of contract deliverables and of completion of tasks or phases. The contracting officer will, in turn, provide the contractor with written notification of approval or disapproval unless the responsibility has been delegated by the contracting officer, in which case the person responsible for such action will notify the contractor and provide a copy to the contracting officer for inclusion in the contract file;</P>
              <P>(ii) Monitor the technical aspects of the contractor's business and technical progress, identify existing and potential problems that threaten performance, and immediately inform the contracting officer of deviations from contract objectives, or from any technical or delivery requirements, so that remedial measures may be instituted accordingly;</P>
              <P>(iii) Provide immediate notification to the head of the program office responsible for the program whenever it is determined that program objectives are not being met, together with specific recommendations of action to be taken. A copy of the project officer's report and recommendation shall be transmitted to the contracting officer for appropriate action;</P>
              <P>(iv) Submit, within 120 days after contract completion, a final assessment report to the contracting officer. The report should include analysis of the contractor's performance, including the contract and program objectives achieved and missed. A copy of the final assessment report shall be forwarded to the head of the program office responsible for the program for management review and follow-up, as necessary; and</P>
              <P>(v) Accompany and/or provide, when requested, technical support to the HHS auditor in the conduct of floor checks.</P>
              <P>(3) The role of the contract administrator, auditor, cost analyst, and property administrator in assisting or advising the contracting officer in postaward administration activities such as:</P>
              <P>(i) Evaluation of contractor systems and procedures, to include accounting policies and procedures, purchasing policies and practices, property accounting and control, wage and salary plans and rate structures, personnel policies and practices, etc.;</P>
              <P>(ii) Processing of disputes under the Disputes clause and any resultant appeals;</P>
              <P>(iii) Modification or termination of the contract; and</P>

              <P>(iv) Determination of the allowability of cost charges to incentive or cost-reimbursement type contracts and progress payments under fixed-price contracts. This is especially important when award is made to new organizations or those with financial weaknesses.<PRTPAGE P="70"/>
              </P>
              <P>(d) The contracting officer is responsible for assuring that contractor performance and contract monitoring are carried out in conformance with contract provisions. If performance is not satisfactory or if problems are anticipated, it is essential that the contracting officer take immediate action to protect the Government's rights under the contract. The contracting officer shall notify his/her immediate supervisor of problems that cannot be resolved within contract limitations and whenever contract or program objectives are not met. The notification shall include a statement of action being take by the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7003</SECTNO>
              <SUBJECT>Withholding of contract payments.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>342.7003-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) All solicitations and resultant contracts shall contain the withholding of contract payments clause at 352.232-9, and an excusable delays clause, or a clause which incorporates the definition of excusable delays. The excusable delays clause at 352.249-14 shall be used when the solicitation and resultant contract (other than purchase orders) does not contain a default or other excusable delays clause.</P>
              <P>(b) The transmittal letter used to convey the contract to each contractor shall contain a notice which highlights the contractor's agreement with the withholding of contract payments clause.</P>
              <P>(c) No contract payment shall be made when any report required to be submitted by the contractor is overdue, or the contractor fails to perform or deliver work or services as required by the contract.</P>
              <P>(d) The contracting officer shall issue a ten-day cure notice or initiate appropriate termination action for any failure in the contractor's performance as stated in paragraph (c) of this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7003-2</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) The contracting officer is responsible for initiating immediate action to protect the Government's rights whenever the contractor fails to comply with either the delivery or reporting provisions of the contract. Compliance with the reporting provisions includes those reports to be submitted directly to the payment office. If such a report is not submitted on time, the contracting officer is to be notified promptly by the payment officer.</P>
              <P>(b) When the contract contains a termination for default clause, the contractor's failure to either submit any required report when due or perform or deliver services or work when required by the contract is to be considered a default in performance. In either circumstance, the contracting officer is to immediately issue a formal ten-day cure notice pursuant to the default clause. The cure notice is to follow the format prescribed in FAR 49.607 and is to include a statement to the effect that contract payments will be withheld if the default is not cured or is not determined to be excusable.</P>
              <P>(1) If the default is cured or is determined to be excusable, the contracting officer is not to initiate the withholding action.</P>
              <P>(2) If the default is not determined to be excusable or a response is not received within the allotted time, the contracting officer is to initiate withholding action on all contract payments and is to determine whether termination for default or other action would be in the best interest of the Government.</P>
              <P>(c) When the contract does not contain a termination for default clause, the contractor's failure to either submit any required report when due or perform or deliver services or work when required by the contract is to be considered a failure to perform. In either circumstance, the contracting officer is to immediately issue a written notice to the contractor specifying the failure and providing a period of ten days, or longer period as determined necessary by the contracting officer, in which the contractor is to cure the failure or establish an excusable delay. The contracting officer is to include a statement in the written notice to the effect that contract payments will be withheld if the failure is not cured or is not determined to be excusable.</P>

              <P>(1) If the failure is cured or is determined to be excusable, the contracting officer is not to initiate the withholding action.<PRTPAGE P="71"/>
              </P>
              <P>(2) If the failure is not determined to be excusable or a response is not received within the allotted time, the contracting officer is to initiate withholding action on all contract payments and is to determine whether termination for convenience or other action would be in the best interest of the Government.</P>
              <P>(d) The contracting officer should consult FAR subpart 49.4 for further guidance before taking any of the actions described in this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7003-3</SECTNO>
              <SUBJECT>Withholding payments.</SUBJECT>
              <P>(a) When making the determination that contract payments should be withheld in accordance with the Withholding of Contract Payments clause, the contracting officer is to immediately notify the servicing finance office in writing of the determination to suspend payments. The notice of suspension is to contain all elements of information required by the payment office to properly identify the contract and the applicable accounts involved.</P>
              <P>(b) The contracting officer is to immediately notify the contractor in writing that payments have been suspended until the default or failure is cured.</P>
              <P>(c) When the contractor cures the default or failure, the contracting officer is to immediately notify, in writing, all recipients of the notice of suspension that the suspension is to be lifted and contract payments are to be resumed.</P>
              <P>(d) When exercising actions regarding the withholding of payment procedures, the contracting officer must be careful not to waive any of the Government's rights when corresponding with the contractor or when taking any other actions.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 342.71—Administrative Actions for Cost Overruns</HD>
            <SECTION>
              <SECTNO>342.7100</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>

              <P>This subpart sets forth the procedures to be followed when a cost overrun is anticipated; <E T="03">i.e.,</E> the allowable actual cost of performing a cost-reimbursement type contract is expected to exceed the total estimated cost specified in the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7101</SECTNO>
              <SUBJECT>Contract administration.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>342.7101-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Upon receipt of information that a contractor's accumulated cost and projected expenditures will exceed the limit of funds obligated by the contract, the contracting officer shall coordinate immediately with the appropriate program office to determine whether the contract should be modified or terminated. If the contracting officer receives information from a source other than the contractor that a cost overrun is anticipated, the contracting officer shall verify the information with the contractor, and remind the contractor of the notification requirements of the Limitation of Cost clause.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7101-2</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) Upon notification that a cost overrun is anticipated, the contracting officer shall inform the contractor to submit a request for additional funds which is to include:</P>
              <P>(1) Name and address of contractor.</P>
              <P>(2) Contract number and expiration date.</P>
              <P>(3) Contract item(s) and amount(s) creating overrun.</P>

              <P>(4) The elements of cost which changed from the original estimate (<E T="03">i.e.,</E> labor, material, travel, overhead, etc.) to be furnished in the following format:</P>
              <P>(i) Original estimate,</P>
              <P>(ii) Costs incurred to date,</P>
              <P>(iii) Estimated cost to completion,</P>
              <P>(iv) Revised estimate, and</P>
              <P>(v) Amount of adjustment.</P>
              <P>(5) The factors responsible for the increase, <E T="03">i.e.,</E> error in estimate, changed conditions, etc.</P>
              <P>(6) The latest date by which funds must be available for commitment to avoid contract slippage, work stoppage, or other program impairment.</P>
              <P>(b) When the contractor submits a notice of an impending overrun, the contracting officer shall:</P>

              <P>(1) Immediately advise the appropriate program office and furnish a copy of the notice and any other data received;<PRTPAGE P="72"/>
              </P>
              <P>(2) Request audit or cost advisory services, and technical support, as necessary, for evaluation of information and data received; and</P>
              <P>(3) Maintain continuous follow-up with the program office to obtain a timely decision as to whether the work under the contract should be continued and additional funds provided, or the contract terminated. The decision of the program office must be supported by an appropriate written statement and funding authority, or a formal request for termination, when applicable. After a programming and funding decision is received from the program office, the contracting officer shall promptly notify the contractor in writing that:</P>
              <P>(i) A specified amount of additional funds has been allotted to the contract by a contractual instrument; or</P>
              <P>(ii) Work will be discontinued when the funds allotted to the contract have been exhausted, and that any work performed after that date is at the contractor's risk; or</P>
              <P>(iii) The Government is considering whether additional funds should be allotted to the contract and will notify the contractor as soon as possible, but that any work performed after the funds then allocated to the contract have been exhausted is at the contractor's risk. Timely, formal notification of the Government's intention is essential in order to preclude loss of contractual rights in the event of dispute, termination, or litigation.</P>
              <P>(c) If program requirements permit, contracting officers should refrain from issuing any contractual documents which will require new work or an extension of time, pending resolution of an overrun or additional fund request.</P>
            </SECTION>
            <SECTION>
              <SECTNO>342.7102</SECTNO>
              <SUBJECT>Contract modifications.</SUBJECT>
              <P>(a) Modifications to contracts containing the Limitation of Cost clause shall include either:</P>
              <P>(1) A provision increasing the estimated or ceiling amount referred to in the Limitation of Cost clause of the contract and stating that the clause will thereafter apply in respect to the increased amount; or</P>
              <P>(2) A provision stating that the estimated or ceiling amount referred to in the contract is not changed by the modification and that the Limitation of Cost clause will continue to apply with respect to the amount in effect prior to the modification.</P>
              <P>(b) A fixed-fee provided in a contract shall not be changed when funding a cost overrun. Changes in fixed-fee will be made only to reflect changes in the scope of work which justify an increase or decrease in fee.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="73"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        <PART>
          <EAR>Pt. 352</EAR>
          <HD SOURCE="HED">PART 352—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 352.2—Texts of Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>352.202-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>352.215-1</SECTNO>
              <SUBJECT>Instructions to offerors—Competitive acquisition.</SUBJECT>
              <SECTNO>352.215-70</SECTNO>
              <SUBJECT>Late proposals and revisions.</SUBJECT>
              <SECTNO>352.216-72</SECTNO>
              <SUBJECT>Additional cost principles.</SUBJECT>
              <SECTNO>352.223-70</SECTNO>
              <SUBJECT>Safety and health.</SUBJECT>
              <SECTNO>352.224-70</SECTNO>
              <SUBJECT>Confidentiality of information.</SUBJECT>
              <SECTNO>352.228-7</SECTNO>
              <SUBJECT>Insurance—Liability to third persons.</SUBJECT>
              <SECTNO>352.232-9</SECTNO>
              <SUBJECT>Withholding of contract payments.</SUBJECT>
              <SECTNO>352.232-74</SECTNO>
              <SUBJECT>Estimated cost and fixed fee—Incrementally funded contract.</SUBJECT>
              <SECTNO>352.232-75</SECTNO>
              <SUBJECT>Incremental funding.</SUBJECT>
              <SECTNO>352.233-70</SECTNO>
              <SUBJECT>Litigation and claims.</SUBJECT>
              <SECTNO>352.242-71</SECTNO>
              <SUBJECT>Final decisions on audit findings.</SUBJECT>
              <SECTNO>352.249-14</SECTNO>
              <SUBJECT>Excusable delays.</SUBJECT>
              <SECTNO>352.270-1</SECTNO>
              <SUBJECT>Accessibility of meetings, conferences, and seminars to persons with disabilities.</SUBJECT>
              <SECTNO>352.270-2</SECTNO>
              <SUBJECT>Indian preference.</SUBJECT>
              <SECTNO>352.270-3</SECTNO>
              <SUBJECT>Indian preference program.</SUBJECT>
              <SECTNO>352.270-4</SECTNO>
              <SUBJECT>Pricing of adjustments.</SUBJECT>
              <SECTNO>352.270-5</SECTNO>
              <SUBJECT>Key personnel.</SUBJECT>
              <SECTNO>352.270-6</SECTNO>
              <SUBJECT>Publications and publicity.</SUBJECT>
              <SECTNO>352.270-7</SECTNO>
              <SUBJECT>Paperwork Reduction Act.</SUBJECT>
              <SECTNO>352.270-8</SECTNO>
              <SUBJECT>Protection of human subjects.</SUBJECT>
              <SECTNO>352.270-9</SECTNO>
              <SUBJECT>Care of laboratory animals.</SUBJECT>
              <SECTNO>352.333-7001</SECTNO>
              <SUBJECT>Choice of Law (Overseas).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301, 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4255, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 352.2—Texts of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>352.202-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>As prescribed in 302.201, the FAR Definitions clause at 52.202-1 is to be used as modified:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Definitions (JAN 2001)</HD>
                <P>(a) Substitute the following as paragraph (a):</P>
                <P>“(a) The term “Secretary” or “Head of the Agency” (also called “Agency Head”) means the Secretary, Under Secretary, or any Assistant Secretary, Administrator or Commissioner of the Department of Health and Human Services; and the term “his/her duly authorized representative” means any person, persons, or board authorized to act for the Secretary.”</P>
                <P>(b) Add the following paragraph (h) or its alternate, as appropriate:</P>
                <P>“(h) The term “Project Officer” means the person representing the Government for the purpose of technical monitoring of contract performance. The Project Officer is not authorized to issue any instructions or directions which effect any increases or decreases in the scope of work or which would result in the increase or decrease of the price of this contract or a change in the delivery dates or performance period of this contract.”</P>
                <P>or</P>
                <P>Alternate:</P>
                <P>“(h) The term “Project Officer” means the person representing the Government for the purpose of technical monitoring of contract performance. The Project Officer is not authorized to issue any instructions or directions which effect any increases or decreases in the scope of work or which would result in the increase or decrease of the cost of this contract or a change in performance period of this contract. In addition, the Project Officer is not authorized to receive or act upon the Contractor's notification of a revised cost estimate pursuant to the Limitation of Cost or Limitation of Funds clause of this contract.”</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>352.215-1</SECTNO>
              <SUBJECT>Instructions to offerors—Competitive acquisition.</SUBJECT>

              <P>Insert the following paragraph (e) in place of paragraph (e) of the provision at FAR 52.215-1:
              </P>
              <EXTRACT>
                <P>(e) <E T="03">Restriction on disclosure and use of data.</E> (1) The proposal submitted in response to this request may contain data (trade secrets; business data, e.g., commercial information, financial information, and cost and pricing data; and technical data) which the offeror, including its prospective subcontractor(s), does not want used or disclosed for any purpose other than for evaluation of the proposal. The use and disclosure of any data may be so restricted; provided, that the Government determines that the data is not required to be disclosed under the Freedom of Information Act, 5 U.S.C. 552, as amended, and the offeror marks the cover sheet of the proposal with the following legend, specifying the particular portions of the proposal which are to be restricted in accordance with the conditions of the legend. The Government's determination to withhold or disclose a record will be based upon the particular circumstances involving the record in question and whether the record may be exempted from disclosure under the Freedom of Information Act. The legend reads:<PRTPAGE P="74"/>
                </P>
                <P>Unless disclosure is required by the Freedom of Information Act, 5 U.S.C. 552, as amended, (the Act) as determined by Freedom of Information (FOI) officials of the Department of Health and Human Services, data contained in the portions of this proposal which have been specifically identified by page number, paragraph, etc. by the offeror as containing restricted information shall not be used or disclosed except for evaluation purposes.</P>
                <P>The offeror acknowledges that the Department may not be able to withhold a record (data, document, etc.) nor deny access to a record requested pursuant to the Act and that the Department's FOI officials must make that determination. The offeror hereby agrees that the Government is not liable for disclosure if the Department has determined that disclosure is required by the Act.</P>
                <P>If a contract is awarded to the offeror as a result of, or in connection with, the submission of this proposal, the Government shall have right to use or disclose the data to the extent provided in the contract. Proposals not resulting in a contract remain subject to the Act.</P>
                <P>The offeror also agrees that the Government is not liable for disclosure or use of unmarked data and may use or disclose the data for any purpose, including the release of the information pursuant to requests under the Act. The data subject to this restriction are contained in pages (insert page numbers, paragraph designations, etc. or other identification).</P>
                <P>(2) In addition, the offeror should mark each page of data it wishes to restrict with the following statement:</P>
                <P>“Use or disclosure of data contained on this page is subject to the restriction on the cover sheet of this proposal or quotation.”</P>
                <P>(3) Offerors are cautioned that proposals submitted with restrictive legends or statements differing in substance from the above legend may not be considered for award. The Government reserves the right to reject any proposal submitted with a nonconforming legend.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>352.215-70</SECTNO>
              <SUBJECT>Late proposals and revisions.</SUBJECT>
              <P>As prescribed in 315.208, the following provision may be included in the solicitation:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Late Proposals and Revisions (NOV 1986)</HD>
                <P>Notwithstanding the procedures contained in FAR 52.215-1(c)(3) of the provision of this solicitation entitled Instructions to Offerors-Competitive Acquisition, a proposal received after the date specified for receipt may be considered if it offers significant cost or technical advantages to the Government; and it was received before proposals were distributed for evaluation, or within five calendar days after the exact time specified for receipt, whichever is earlier.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.216-72</SECTNO>
              <SUBJECT>Additional cost principles.</SUBJECT>
              <P>As prescribed in 316.307(j), insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Additional Cost Principles (OCT 1990)</HD>
                <P>(a) <E T="03">Bid and proposal costs.</E> (1) Bid and proposal costs are the immediate costs of preparing bids, proposals, and applications for potential Federal and non-Federal contracts, grants, and agreements, including the development of scientific, cost, and other data needed to support the bids, proposals, and applications.</P>
                <P>(2) Bid and proposal costs of the current accounting period are allowable as indirect costs.</P>
                <P>(3) Bid and proposal costs of past accounting periods are unallowable in the current period. However, if the organization's established practice is to treat these costs by some other method, they may be accepted if they are found to be reasonable and equitable.</P>
                <P>(4) Bid and proposal costs do not include independent research and development costs covered by the following paragraph, or preaward costs covered by paragraph 38 of Attachment B to OMB Circular A-122.</P>
                <P>(b) <E T="03">Independent research and development costs.</E> (1) Independent research and development is research and development conducted by an organization which is not sponsored by Federal or non-Federal contracts, grants, or other agreements.</P>
                <P>(2) Independent research and development shall be allocated its proportionate share of indirect costs on the same basis as the allocation of indirect costs to sponsored research and development.</P>
                <P>(3) The cost of independent research and development, including its proportionate share of indirect costs, are unallowable.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.223-70</SECTNO>
              <SUBJECT>Safety and health.</SUBJECT>
              <P>The following clause, or one reading substantially the same, shall be used as prescribed in 323.7002:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Safety and Health (JAN 2001)</HD>

                <P>(a) To help ensure the protection of the life and health of all persons, and to help prevent damage to property, the Contractor shall comply with all Federal, State and local laws and regulations applicable to the work being performed under this contract. These laws are implemented and/or enforced by the <PRTPAGE P="75"/>Environmental Protection Agency, Occupational Safety and Health Administration and other agencies at the Federal, State and local levels (Federal, State and local regulatory/enforcement agencies).</P>
                <P>(b) Further, the Contractor shall take or cause to be taken additional safety measures as the Contracting Officer, in conjunction with the project or other appropriate officers, determines to be reasonably necessary. If compliance with these additional safety measures results in an increase or decrease in the cost or time required for performance of any part of work under this contract, an equitable adjustment will be made in accordance with the applicable “Changes” clause set forth in this contract.</P>
                <P>(c) The Contractor shall maintain an accurate record of, and promptly report to the Contracting Officer, all accidents or incidents resulting in the exposure of persons to toxic substances, hazardous materials or hazardous operations; the injury or death of any person; and/or damage to property incidental to work performed under the contract and all violations for which the Contractor has been cited by any Federal, State or local regulatory/enforcement agency. The report shall include a copy of the notice of violation and the findings of any inquiry or inspection, and an analysis addressing the impact these violations may have on the work remaining to be performed. The report shall also state the required action(s), if any, to be taken to correct any violation(s) noted by the Federal, State or local regulatory/enforcement agency and the time frame allowed by the agency to accomplish the necessary corrective action.</P>
                <P>(d) If the Contractor fails or refuses to comply with the Federal, State or local regulatory/enforcement agency's directive(s) regarding any violation(s) and prescribed corrective action(s), the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action (as approved by the Federal, State or local regulatory/enforcement agencies) has been taken and documented to the Contracting Officer. No part of the time lost due to any stop work order shall be subject to a claim for extension of time or costs or damages by the Contractor.</P>
                <P>(e) The Contractor shall insert the substance of this clause in each subcontract involving toxic substances, hazardous materials, or hazardous operations. Compliance with the provisions of this clause by subcontractors will be the responsibility of the Contractor.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.224-70</SECTNO>
              <SUBJECT>Confidentiality of information.</SUBJECT>
              <P>The following clause is covered by the policy set forth in subpart 324.70 and is to be used in accordance with the instructions set forth in 324.7004.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Confidentiality of Information (APR 1984)</HD>
                <P>(a) Confidential information, as used in this clause, means information or data of a personal nature about an individual, or proprietary information or data submitted by or pertaining to an institution or organization.</P>
                <P>(b) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the Contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the “Disputes” clause.</P>
                <P>(c) If it is established elsewhere in this contract that information to be utilized under this contract, or a portion thereof, is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.</P>
                <P>(d) Confidential information, as defined in paragraph (a) of this clause, that is information or data of a personal nature about an individual, or proprietary information or data submitted by or pertaining to an institution or organization, shall not be disclosed without the prior written consent of the individual, institution, or organization.</P>
                <P>(e) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor should obtain a written determination from the Contracting Officer prior to any release, disclosure, dissemination, or publication.</P>
                <P>(f) Contracting Officer determinations will reflect the result of internal coordination with appropriate program and legal officials.</P>
                <P>(g) The provisions of paragraph (d) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State, or local laws.</P>
              </EXTRACT>
              <PRTPAGE P="76"/>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[66 FR 4255, Jan. 17, 2001, as amended at 70 FR 41, Jan. 3, 2005; 70 FR 11583, Mar. 9, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>352.228-7</SECTNO>
              <SUBJECT>Insurance—Liability to third persons.</SUBJECT>
              <P>As prescribed in 328.311-2, contracting officers shall include the following clause in all cost-reimbursement contracts, in lieu of the clause at FAR 52.228-7:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Insurance—Liability to Third Persons (DEC 1991)</HD>
                <P>(a)(1) Except as provided in paragraph (a)(2) immediately following, or in paragraph (h) of this clause (if the clause has a paragraph (h)), the Contractor shall provide and maintain workers' compensation, employer's liability, comprehensive general liability (bodily injury), comprehensive automobile liability (bodily injury and property damage) insurance, and such other insurance as the Contracting Officer may require under this contract.</P>
                <P>(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.</P>
                <P>(3) All insurance required by this paragraph shall be in form and amount and for those periods as the Contracting Officer may require or approve and with insurers approved by the Contracting Officer.</P>
                <P>(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 performance of this contract and for which the Contractor seeks reimbursement.</P>
                <P>(c) Except as provided in paragraph (h) of this clause (if the clause has a paragraph (h)), the Contractor shall be reimbursed:</P>
                <P>(1) For that portion of the reasonable cost of insurance allocable to this contract, and required or approved under this clause; and</P>
                <P>(2) For certain liabilities (and expenses incidental to such liabilities) to third persons not compensated by insurance or otherwise within the funds available under the Limitation of Cost or the Limitation of Funds clause of this contract. These liabilities must arise out of the performance of this contract, whether or not caused by the negligence of the Contractor or the Contractor's agents, servants, or employees, and must be represented by final judgments or settlements approved in writing by the Government. These liabilities are for:</P>
                <P>(i) Loss of or damage to property (other than property owned, occupied, or used by the Contractor, rented to the Contractor, or in the care, custody, or control of the Contractor); or</P>
                <P>(ii) Death or bodily injury.</P>
                <P>(d) The Government's liability under paragraph (c) of this clause is limited to the amounts reflected in final judgements, or settlements approved in writing by the Government, but in no event to exceed the funds available under the Limitation of Cost or Limitation of Funds clause of this contract. Nothing in this contract shall be construed as implying that, at a later date, the Government will request, or the Congress will appropriate, funds sufficient to meet any deficiencies.</P>
                <P>(e) The Contractor shall not be reimbursed for liabilities (and expenses incidental to such liabilities):</P>
                <P>(1) For which the Contractor is otherwise responsible under the express terms of any clause specified in the Schedule or elsewhere in the contract:</P>
                <P>(2) For which the Contractor has failed to insure or to maintain insurance as required by the Contracting Officer; or</P>
                <P>(3) That result from willful misconduct or lack of good faith on the part of the Contractor's directors, officers, managers, superintendents, or other representatives who have supervision or direction of:</P>
                <P>(i) All or substantially all of the Contractor's business;</P>
                <P>(ii) All or substantially all of the Contractor's operations at any one plant or separate location in which this contract is being performed; or</P>
                <P>(iii) A separate and complete major industrial operation in connection with the performance of this contract.</P>

                <P>(f) The provisions of paragraph (e) of this clause shall not restrict the right of the Contractor to be reimbursed for the cost of insurance maintained by the Contractor in connection with the performance of this contract, other than insurance required in accordance with this clause; <E T="03">provided,</E> that such cost is allowable under the Allowable Cost and Payment clause of this contract.</P>
                <P>(g) If any suit or action is filed or any claim is made against the Contractor, the cost and expense of which may be reimbursable to the Contractor under this contract, and the risk of which is then uninsured or is insured for less than the amount claimed, the Contractor shall:</P>
                <P>(1) Immediately notify the Contracting Officer and promptly furnish copies of all pertinent papers received;</P>
                <P>(2) Authorize Government representatives to collaborate with counsel for the insurance carrier in settling or defending the claim when the amount of the liability claimed exceeds the amount of coverage; and</P>

                <P>(3) Authorize Government representatives to settle or defend the claim and to represent the Contractor in or to take charge of any <PRTPAGE P="77"/>litigation, if required by the Government, when the liability is not insured or covered by the bond. The Contractor may, at its own expense, be associated with the Government representatives in any such claim or litigation.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>
                <E T="03">Alternate I</E> (APR 1984). If the successful offeror represents in the offer that the offeror is <E T="03">partially</E> immune from tort liability as a State agency, add the following paragraph (h) to the basic clause:
              </P>
              <EXTRACT>
                <P>(h) Notwithstanding paragraphs (a) and (c) of this clause—</P>
                <P>(1) The Government does not assume any liability to third persons, nor will the Government reimburse the Contractor for its liability to third persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of this contract or any subcontract under this contract; and</P>
                <P>(2) The Contractor need not provide or maintain insurance coverage as required by paragraph (a) of this clause; provided, that the Contractor may obtain any insurance coverage deemed necessary, subject to approval by the Contracting Officer as to form, amount, and duration. The Contractor shall be reimbursed for the cost of such insurance and, to the extent provided in paragraph (c) of this clause, to liabilities to third persons for which the Contractor has obtained insurance coverage as provided in this paragraph, but for which such coverage is insufficient in amount.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>
                <E T="03">Alternate II</E> (APR 1984). If the successful offeror represents in the offer that the offeror is totally immune from tort liability as a State agency, substitute the following paragraphs (a) and (b) for paragraphs (a) and (b) of the basic clause:
              </P>
              <EXTRACT>
                <P>(a) The Government does not assume any liability to third persons, nor will the Government reimburse the Contractor for its liability to third persons, with respect to loss due to death, bodily injury, or damage to property resulting in any way from the performance of this contract or any subcontract under this contract.</P>
                <P>(b) If any suit or action is filed, or if any claim is made against the Contractor, the cost and expense of which may be reimbursable to the Contractor under this contract, the Contractor shall immediately notify the Contracting Officer and promptly furnish copies of all pertinent papers received by the Contractor. The Contractor shall, if required by the Government, authorize Government representatives to settle or defend the claim and to represent the Contractor in or take charge of any litigation. The Contractor may, at its own expense, be associated with the Government representatives in any such claims or litigation.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.232-9</SECTNO>
              <SUBJECT>Withholding of contract payments.</SUBJECT>
              <P>Insert the following clause in all solicitations and contracts other than purchase orders:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Withholding of Contract Payments (APR 1984)</HD>
                <P>Notwithstanding any other payment provisions of this contract, failure of the Contractor to submit required reports when due or failure to perform or deliver required work, supplies, or services, will result in the withholding of payments under this contract unless such failure arises out of causes beyond the control, and without the fault or negligence of the Contractor as defined by the clause entitled “Excusable Delays” or “Default”, as applicable. The Government shall promptly notify the Contractor of its intention to withhold payment of any invoice or voucher submitted.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.232-74</SECTNO>
              <SUBJECT>Estimated cost and fixed fee—Incrementally funded contract.</SUBJECT>
              <P>The following clause, or one reading substantially as it, shall be included in the Special Provisions of an incrementally funded contract:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Consideration-Estimated Cost and Fixed Fee (APR 1984)</HD>
                <P>(a) It is estimated that the total cost to the Government for full performance of this contract will be $___, of which the sum of $___ represents the estimated reimbursable costs and $___ represents the fixed-fee.</P>
                <P>(b) Total funds currently available for payment and allotted to this contract are $___, of which $___ represents the estimated reimbursable costs and $___ represents the fixed-fee. For further provisions on funding, see the Limitation of Funds clause.</P>
                <P>(c) It is estimated that the amount currently allotted will cover performance of Phase I which is scheduled to be completed by (date)___.</P>
                <P>(d) The Contracting Officer may allot additional funds to the contract without the concurrence of the Contractor.</P>
              </EXTRACT>
              <PRTPAGE P="78"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.232-75</SECTNO>
              <SUBJECT>Incremental funding.</SUBJECT>
              <P>The following provision shall be included in all requests for proposals whenever the use of incremental funding is contemplated:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Incremental Funding (JAN 2001)</HD>
                <P>(a) It is the Government's intention to negotiate and award a contract using the incremental funding concepts described in the clause entitled Limitation of Funds. Under the clause, which will be included in the resultant contract, initial funds will be obligated under the contract to cover the first year of performance. Additional funds are intended to be allotted to the contract by contract modification, up to and including the full estimated cost of the contract, to accomplish the entire project. While it is the Government's intention to progressively fund this contract over the entire period of performance up to and including the full estimated cost, the Government will not be obligated to reimburse the Contractor for costs incurred in excess of the periodic allotments, nor will the Contractor be obligated to perform in excess of the amount allotted.</P>
                <P>(b) The Limitation of Funds clause to be included in the resultant contract shall supersede the Limitation of Cost clause found in the General Provisions.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.233-70</SECTNO>
              <SUBJECT>Litigation and claims.</SUBJECT>
              <P>Insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Litigation and Claims (APR 1984)</HD>
                <P>The Contractor shall give the Contracting Officer immediate notice in writing of any action, including any proceeding before an administrative agency, filed against the Contractor arising out of the performance of this contract, including, but not limited to the performance of any subcontract hereunder; and any claim against the Contractor the cost and expense of which is allowable under the clause entitled “Allowable Cost and Payment.” Except as otherwise directed by the Contracting Officer, the Contractor shall furnish immediately to the Contracting Officer copies of all pertinent papers received by the Contractor with respect to such action or claim. To the extent not in conflict with any applicable policy of insurance, the Contractor may, with the Contracting Officer's approval, settle any such action or claim. If required by the Contracting Officer, the Contractor shall effect an assignment and subrogation in favor of the Government of all the Contractor's rights and claims (except those against the Government) arising out of any such action or claim against the Contractor; and authorize representatives of the Government to settle or defend any such action or claim and to represent the Contractor in, or to take charge of, any action. If the settlement or defense of an action or claim is undertaken by the Government, the Contractor shall furnish all reasonable assistance in effecting a settlement or asserting a defense. Where an action against the Contractor is not covered by a policy of insurance, the Contractor shall, with the approval of the Contracting Officer, proceed with the defense of the action in good faith. The Government shall not be liable for the expense of defending any action or for any costs resulting from the loss thereof to the extent that the Contractor would have been compensated by insurance which was required by law or regulation or by written direction of the Contracting Officer, but which the Contractor failed to secure through its own fault or negligence. In any event, unless otherwise expressly provided in this contract, the Contractor shall not be reimbursed or indemnified by the Government for any liability loss, cost or expense, which the Contractor may incur or be subject to by reason of any loss, injury or damage, to the person or to real or personal property of any third parties as may accrue during, or arise from, the performance of this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.242-71</SECTNO>
              <SUBJECT>Final decisions on audit findings.</SUBJECT>
              <P>Insert the following clause in all solicitations and resultant cost-reimbursement contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Final Decisions on Audit Findings (APR 1984)</HD>
                <P>For the purpose of issuing final decisions under the Disputes clause of this contract concerning monetary audit findings, the Contracting Officer shall be that person with ultimate responsibility for making that decision in accordance with Chapter 1-105, Resolution of Audit Findings, of the Department's Grants Administration Manual.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.249-14</SECTNO>
              <SUBJECT>Excusable delays.</SUBJECT>
              <P>Insert the following clause in all solicitations and resultant contracts other than purchase orders which do not have either a default or excusable delays clause, as prescribed in 342.7003-1(a):</P>
              <EXTRACT>
                <PRTPAGE P="79"/>
                <HD SOURCE="HD1">Excusable Delays (APR 1984)</HD>
                <P>(a) Except with respect to failures of subcontractors, the Contractor shall not be considered to have failed in performance of this contract if such failure arises out of causes beyond the control and without the fault or negligence of the Contractor.</P>
                <P>(b) Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. If the failure to perform is caused by the failure of a subcontractor to perform, and if such failure arises out of causes beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either of them, the Contractor shall not be deemed to have failed in performance of the contract, unless: the supplies or services to be furnished by the subcontractor were obtainable from other sources, the Contracting Officer shall have ordered the Contractor in writing to procure such supplies or services from such other sources, and the Contractor shall have failed to comply reasonably with such order. Upon request of the Contractor, the Contracting officer shall ascertain the facts and extent of such failure and, if he/she shall determine that any failure to perform was occasioned by any one or more of the said causes, the delivery schedule shall be revised accordingly, subject to the rights of the Government under the termination clause hereof. (As used in this clause, the terms “subcontractor” and “subcontractors” mean subcontractor(s) at any tier.)</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-1</SECTNO>
              <SUBJECT>Accessibility of meetings, conferences, and seminars to persons with disabilities.</SUBJECT>
              <P>The following clause is to be used in accordance with 370.102:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities (JAN 2001)</HD>
                <P>The Contractor agrees as follows:</P>
                <P>(a) <E T="03">Planning.</E> The Contractor will develop a plan to assure that any meeting, conference, or seminar held pursuant to this contract will meet or exceed the minimum accessibility standards set forth in 28 CFR 36.101-36.500 and Appendix A: ADA Accessibility Guidelines (ADAAG). The plan shall be submitted to the project officer for approval prior to initiating action. ( A consolidated or master plan for contracts requiring numerous meetings, conferences, or seminars may be submitted in lieu of separate plans.)</P>
                <P>(b) <E T="03">Facilities.</E> Any facility to be utilized for meetings, conferences, or seminars in performance of this contract shall be in compliance with 28 CFR 36.101-36.500 and Appendix A. The Contractor shall determine, by an on-site inspection, that the facility meets these requirements.</P>
                <P>(1) <E T="03">Parking.</E> Parking shall be in compliance with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(2) <E T="03">Entrances.</E> Entrances shall be in compliance with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(3) <E T="03">Meeting Rooms.</E> Meeting rooms, including seating arrangements, shall be in compliance with 28 CFR 36.101-36.500 and Appendix A. In addition, stages, speaker platforms, etc. which are to be used by persons in wheelchairs must be accessible by ramps or lifts. When used, the ramp may not necessarily be independently negotiable if space does not permit. However, any slope over 1:12 must be approved by the Project Officer and the Contractor must provide assistance to negotiate access to the stage or platform.</P>
                <P>(4) <E T="03">Restrooms.</E> Restrooms shall be in compliance with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(5) <E T="03">Eating Facilities.</E> Eating facilities in the meeting facility must also comply with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(6) <E T="03">Overnight Facilities.</E> If overnight accommodations are required, the facility providing the overnight accommodations shall also comply with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(7) <E T="03">Water Fountains.</E> Water fountains shall comply with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(8) <E T="03">Telephones.</E> Public telephones shall comply with 28 CFR 36.101-36.500 and Appendix A.</P>
                <P>(c) <E T="03">Provisions of Services for Attendees with Sensory Impairments.</E>
                </P>
                <P>(1) The Contractor, in planning the meeting, conference, or seminar, shall include in all announcements and other materials pertaining to the meeting, conference, or seminar a notice indicating that services will be made available to persons with sensory impairments attending the meeting, if requested within five (5) days of the date of the meeting, conference, or seminar. The announcement(s) and other material(s) shall indicate that persons with sensory impairments may contact a specific person(s), at a specific address and phone number(s), to make their service requirements known. The phone number(s) shall include a telecommunication device for the deaf (TDD).</P>

                <P>(2) The Contractor shall provide, at no additional cost to the individual, those services required by persons with sensory impairments to insure their complete participation in the meeting, conference, or seminar.<PRTPAGE P="80"/>
                </P>
                <P>(3) As a minimum, when requested in advance, the Contractor shall provide the following services:</P>
                <P>(i) For persons with hearing impairments, qualified interpreters. Also, the meeting rooms will be adequately illuminated so signing by interpreters can be easily seen.</P>
                <P>(ii) For persons with vision impairments, readers and/or cassette materials, as necessary, to enable full participation. Also, meeting rooms will be adequately illuminated.</P>
                <P>(iii) Agenda and other conference material(s) shall be translated into a usable form for persons with sensory impairments. Readers, braille translations, large print text, and/or tape recordings are all acceptable. These materials shall be available to individuals with sensory impairments upon their arrival.</P>
                <P>(4) The Contractor is responsible for making a reasonable effort to ascertain the number of individuals with sensory impairments who plan to attend the meeting, conference, or seminar. However, if it can be determined that there will be no person with sensory impairment in attendance, the provision of those services under paragraph (c) of this clause for the nonrepresented group, or groups, is not required.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-2</SECTNO>
              <SUBJECT>Indian preference.</SUBJECT>
              <P>The following clause shall be used as prescribed in 370.202(a):</P>
              <EXTRACT>
                <HD SOURCE="HD1">Indian Preference (APR 1984)</HD>
                <P>(a) The Contractor agrees to give preference in employment opportunities under this contract to Indians who can perform required work, regardless of age (subject to existing laws and regulations), sex, religion, or tribal affiliation. To the extent feasible and consistent with the efficient performance of this contract, the Contractor further agrees to give preference in employment and training opportunities under this contract to Indians who are not fully qualified to perform regardless of age (subject to existing laws and regulations), sex, religion, or tribal affiliation. The Contractor also agrees to give preference to Indian organizations and Indian-owned economic enterprises in the awarding of any subcontracts to the extent feasible and consistent with the efficient performance of this contract. The Contractor shall maintain statistical records as are necessary to indicate compliance with this paragraph.</P>
                <P>(b) In connection with the Indian employment preference requirements of this clause, the Contractor shall provide opportunities for training incident to such employment. Such training shall include on-the-job, classroom or apprenticeship training which is designed to increase the vocational effectiveness of an Indian employee.</P>
                <P>(c) If the Contractor is unable to fill its employment and training opportunities after giving full consideration to Indians as required by this clause, those needs may be satisfied by selection of persons other than Indians in accordance with the clause of this contract entitled “Equal Opportunity.”</P>
                <P>(d) If no Indian organizations or Indian-owned economic enterprises are available under reasonable terms and conditions, including price, for awarding of subcontracts in connection with the work performed under this contract, the Contractor agrees to comply with the provisions of this contract involving utilization of small business concerns, small disadvantaged business concerns, and women-owned small business concerns.</P>
                <P>(e) As used in this clause:</P>
                <P>(1) “Indian” means a person who is a member of an Indian Tribe. If the Contractor has reason to doubt that a person seeking employment preference is an Indian, the Contractor shall grant the preference but shall require the individual to provide evidence within thirty (30) days from the Tribe concerned that the person is a member of the Tribe.</P>
                <P>(2) “Indian Tribe” means an Indian Tribe, pueblo, band, nation, or other organized group or community, including Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.</P>
                <P>(3) “Indian organization” means the governing body of any Indian Tribe or entity established or recognized by such governing body in accordance with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 1451); and</P>
                <P>(4) “Indian-owned economic enterprise” means any Indian-owned commercial, industrial, or business activity established or organized for the purpose of profit, provided that such Indian ownership shall constitute not less than 51 percent of the enterprise, and that ownership shall encompass active operation and control of the enterprise.</P>
                <P>(f) The Contractor agrees to include the provisions of this clause, including this paragraph (f) of this clause, in each subcontract awarded at any tier under this contract.</P>
                <P>(g) In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may impose any other sanctions authorized by law or by other provisions of the contract.</P>
              </EXTRACT>
              <PRTPAGE P="81"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-3</SECTNO>
              <SUBJECT>Indian preference program.</SUBJECT>
              <P>The following clause shall be used as prescribed in 370.202(b):</P>
              <EXTRACT>
                <HD SOURCE="HD1">Indian Preference Program (APR 1984)</HD>
                <P>(a) In addition to the requirements of the clause of this contract entitled “Indian Preference,” the Contractor agrees to establish and conduct an Indian preference program which will expand opportunities for Indians to receive preference for employment and training in connection with the work to be performed under this contract, and which will expand the opportunities for Indian organizations and Indian-owned economic enterprises to receive a preference in the awarding of subcontracts. In this connection, the Contractor shall:</P>
                <P>(1) Designate a liaison officer who will maintain liaison with the Government and the Tribe(s) on Indian preference matters; supervise compliance with the provisions of this clause; and administer the Contractor's Indian preference program.</P>
                <P>(2) Advise its recruitment sources in writing and include a statement in all advertisements for employment that Indian applicants will be given preference in employment and training incident to such employment.</P>
                <P>(3) Not more than twenty (20) calendar days after award of the contract, post a written notice in the Tribal office of any reservations on which or near where the work under this contract is to be performed that sets forth the Contractor's employment needs and related training opportunities. The notice shall include the approximate numbers and types of employees needed; the approximate dates of employment; the experience or special skills required for employment, if any; training opportunities available; and other pertinent information necessary to advise prospective employees of any other employment requirements. The Contractor shall also request the Tribe(s) on or near whose reservation(s) the work is to be performed to provide assistance to the Contractor in filling its employment needs and training opportunities. The Contracting Officer will advise the Contractor of the name, location, and phone number of the Tribal officials to contact in regard to the posting of notices and requests for Tribal assistance.</P>
                <P>(4) Establish and conduct a subcontracting program which gives preference to Indian organizations and Indian-owned economic enterprises as subcontractors and suppliers under this contract. The Contractor shall give public notice of existing subcontracting opportunities and, to the extent feasible and consistent with the efficient performance of this contract, shall solicit bids or proposals only from Indian organizations or Indian-owned economic enterprises. The Contractor shall request assistance and information on Indian firms qualified as suppliers or subcontractors from the Tribe(s) on or near whose reservation(s) the work under the contract is to be performed. The Contracting Officer will advise the Contractor of the name, location, and phone number of the Tribal officials to be contacted in regard to the request for assistance and information. Public notices and solicitations for existing subcontracting opportunities shall provide an equitable opportunity for Indian firms to submit bids or proposals by including: A clear description of the supplies or services required, including quantities, specifications, and delivery schedules which facilitate the participation of Indian firms; A statement indicating that preference will be given to Indian organizations and Indian-owned economic enterprises in accordance with section 7(b) of Public Law 93-638 (88 Stat. 2205; 25 U.S.C. 450e(b)); Definitions for the terms “Indian organization” and “Indian-owned economic enterprise” as prescribed under the “Indian Preference” clause of this contract; A statement to be completed by the bidder or offeror that it is an Indian organization or Indian-owned economic enterprise; and A closing date for receipt of bids or proposals which provides sufficient time for preparation and submission of a bid or proposal. If after soliciting bids or proposals from Indian organizations and Indian-owned economic enterprises, no responsive bid or acceptable proposal is received, the Contractor shall comply with the requirements of paragraph (d) of the “Indian Preference” clause of this contract. If one or more responsible bids or acceptable proposals are received, award shall be made to the low responsible bidder or acceptable offeror if the price is determined to be reasonable. If the low responsive bid or acceptable proposal is determined to be unreasonable as to price, the Contractor shall attempt to negotiate a reasonable price and award a subcontract. If a reasonable price cannot be agreed upon, the Contractor shall comply with the requirements of paragraph (d) of the “Indian Preference” clause of this contract.</P>

                <P>(5) Maintain written records under this contract which indicate: The numbers of Indians seeking employment for each employment position available under this contract; The number and types of positions filled by Indians and non-Indians, and the total number of Indians employed under this contract; For those positions where there are both Indian and non-Indian applicants, and a non-Indian is selected for employment, the reason(s) why the Indian applicant was not selected; Actions taken to give preference to Indian organizations and Indian-owned economic enterprises for subcontracting opportunities which exist under this contract; <PRTPAGE P="82"/>Reasons why preference was not given to Indian firms as subcontractors or suppliers for each requirement where it was determined by the Contractor that such preference would not be consistent with the efficient performance of the contract; and The number of Indian organizations and Indian-owned economic enterprises contacted, and the number receiving subcontract awards under this contract.</P>
                <P>(6) Submit to the Contracting Officer for approval a quarterly report which summarizes the Contractor's Indian preference program and indicates the number and types of available positions filled by Indians and non-Indians, and the dollar amounts of all subcontracts awarded to Indian organizations and Indian-owned economic enterprises, and to all other firms.</P>
                <P>(7) Maintain records pursuant to this clause and keep them available for review by the Government until expiration of one (1) year after final payment under this contract, or for such longer period as may be required by any other clause of this contract or by applicable law or regulation.</P>
                <P>(b) For purposes of this clause, the following definitions of terms shall apply:</P>
                <P>(1) The terms “Indian,” “Indian Tribe,” “Indian Organization,” and “Indian-owned economic enterprise” are defined in the clause of this contract entitled “Indian Preference.”</P>

                <P>(2) “Indian reservation” includes Indian reservations, public domain Indian Allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 <E T="03">et seq.</E>)</P>
                <P>(3) “On or near an Indian Reservation” means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably be expected to commute to and from in the course of a work day.</P>
                <P>(c) Nothing in the requirements of this clause shall be interpreted to preclude Indian Tribes from independently developing and enforcing their own Indian preference requirements. Such requirements must not conflict with any Federal statutory or regulatory requirement dealing with the award and administration of contracts.</P>
                <P>(d) The Contractor agrees to include the provisions of this clause, including this paragraph (d), in each subcontract awarded at any tier under this contract and to notify the Contracting Officer of such subcontracts.</P>
                <P>(e) In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may impose any other sanctions authorized by law or by other provisions of the contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-4</SECTNO>
              <SUBJECT>Pricing of adjustments.</SUBJECT>
              <P>Insert the following clause in all solicitations and resultant fixed-priced contracts other than purchase orders.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Pricing of Adjustments (JAN 2001)</HD>
                <P>When costs are a factor in determination of a contract price adjustment pursuant to the “Changes” clause or any provision of this contract, such costs shall be determined in accordance with the applicable cost principles and procedures set forth below:</P>
                <GPOTABLE CDEF="s50,r50" COLS="2" OPTS="L2">
                  <BOXHD>
                    <CHED H="1">Principles</CHED>
                    <CHED H="1">Types of organizations</CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="01">(a) Subpart 31.2 of the Federal Acquisition Regulation</ENT>
                    <ENT>Commercial.</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">(b) Subpart 31.3 of the Federal Acquisition Regulation</ENT>
                    <ENT>Educational.</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">(c) Subpart 31.6 of the Federal Acquisition Regulation</ENT>
                    <ENT>State, local, and federally recognized Indian tribal governments.</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">(d) 45 CFR Part 74 Appendix E</ENT>
                    <ENT>Hospitals (permforming research and development contracts only.</ENT>
                  </ROW>
                  <ROW>
                    <ENT I="01">(e) Subpart 31.7 of the Federal Acquisition Regulation</ENT>
                    <ENT>Other nonprofit institutions.</ENT>
                  </ROW>
                </GPOTABLE>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-5</SECTNO>
              <SUBJECT>Key personnel.</SUBJECT>
              <P>Insert the following clause in all solicitations and resultant cost-reimbursement contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Key Personnel (APR 1984)</HD>
                <P>The personnel specified in this contract are considered to be essential to the work being performed hereunder. Prior to diverting any of the specified individuals to other programs, the Contractor shall notify the Contracting Officer reasonably in advance and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the program. No diversion shall be made by the Contractor without the written consent of the Contracting Officer; provided, that the Contracting Officer may ratify in writing such diversion and such ratification shall constitute the consent of the Contracting Officer required by this clause. The contract may be modified from time to time during the course of the contract to either add or delete personnel, as appropriate.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-6</SECTNO>
              <SUBJECT>Publications and publicity.</SUBJECT>
              <P>Insert the following clause in all solicitations and resultant contracts.</P>
              <EXTRACT>
                <PRTPAGE P="83"/>
                <HD SOURCE="HD1">Publications and Publicity (JUL 1991)</HD>
                <P>(a) Unless otherwise specified in this contract, the Contractor is encouraged to publish the results of its work under this contract. A copy of each article submitted by the Contractor for publication shall be promptly sent to the Project Officer. The Contractor shall also inform the Project Officer when the article or other publication is published, and furnish a copy of it as finally published.</P>
                <P>(b) The Contractor shall include in any publication resulting from work performed under this contract a disclaimer reading as follows:</P>
                <P>The content of this publication does not necessarily reflect the views or policies of the Department of Health and Human Services, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-7</SECTNO>
              <SUBJECT>Paperwork Reduction Act.</SUBJECT>
              <P>Insert the following clause in all solicitations and contracts.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Paperwork Reduction Act (JAN 2001)</HD>
                <P>(a) In the event that it subsequently becomes a contractual requirement to collect or record information calling either for answers to identical questions from 10 or more persons other than Federal employees, or information from Federal employees which is outside the scope of their employment, for use by the Federal government or disclosure to third parties, the Paperwork Reduction Act of 1995 (Pub. L. 104-13) shall apply to this contract. No plan, questionnaire, interview guide or other similar device for collecting information (whether repetitive or single-time) may be used without first obtaining clearance from the Office of Management and Budget (OMB). Contractors and Project Officers should be guided by the provisions of 5 CFR Part 1320, Controlling Paperwork Burdens on the Public, and seek the advice of the HHS operating division or Office of the Secretary Reports Clearance Officer to determine the procedures for acquiring OMB clearance.</P>
                <P>(b) The Contractor shall obtain the required OMB clearance through the Project Officer before expending any funds or making public contracts for the collection of data. The authority to expend funds and proceed with the collection of information shall be in writing by the Contracting Officer. The Contractor must plan at least 120 days for OMB clearance. Excessive delays caused by the Government which arises out of causes beyond the control and without the fault or negligence of the Contractor will be considered in accordance with the Excusable Delays or Default clause of this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-8</SECTNO>
              <SUBJECT>Protection of human subjects.</SUBJECT>
              <P>(a) The following provision shall be included in solicitations expected to involve human subjects:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notice to Offerors of Requirements of 45 CFR Part 46, Protection of Human Subjects (JAN 2001)</HD>
                <P>(a) Copies of the Department of Health and Human Services (Department) regulations for the protection of human subjects, 45 CFR Part 46, are available from the Office for Human Research Protections (OHRP), Bethesda, Maryland 20892. The regulations provide a systematic means, based on established ethical principles, to safeguard the rights and welfare of individuals who participate as subjects in research activities supported or conducted by the Department.</P>
                <P>(b) The regulations define a human subject as a living individual about whom an investigator (whether professional or student) conducting research obtains data through intervention or interaction with the individual, or identifiable private information. The regulations extend to the use of human organs, tissue, and body fluids from individually identifiable human subjects as well as to graphic, written, or recorded information derived from individually identifiable human subjects. The use of autopsy materials is governed by applicable State and local law and is not directly regulated by 45 CFR Part 46.</P>
                <P>(c) Activities in which the only involvement of human subjects will be in one or more of the categories set forth in 45 CFR 46.101(b)(1-6) are exempt from coverage.</P>
                <P>(d) Inappropriate designations of the noninvolvement of human subjects or of exempt categories of research in a project may result in delays in the review of a proposal. The OpDiv will make a final determination of whether the proposed activities are covered by the regulations or are in an exempt category, based on the information provided in the proposal. In doubtful cases, prior consultation with OPRR, (telephone: 301-496-7014), is recommended.</P>

                <P>(e) In accordance with 45 CFR Part 46, prospective Contractors being considered for award shall be required to file with OPRR an acceptable Assurance of Compliance with the regulations, specifying review procedures and assigning responsibilities for the protection of human subjects. The initial and continuing review of a research project by an institutional review board shall assure that the rights and welfare of the human subjects involved are adequately protected, that the <PRTPAGE P="84"/>risks to the subjects are reasonable in relation to the potential benefits, if any, to the subjects and the importance of the knowledge to be gained, and that informed consent will be obtained by methods that are adequate and appropriate. The contracting officer will direct the offeror/contractor to the OHRP IRB Registration and Assurance Filing website, found at <E T="03">http://www.hhs.gov/ohrp/</E> or to the physical address if the offeror/contractor cannot access the Internet. HHS regulations for the protection of human subjects may be found at: <E T="03">http://www.access.gpo.gov/nara/cfr/waisidx_01/45cfr46_01.html</E>
                </P>
                <P>(f) It is recommended that OPRR be consulted for advice or guidance concerning either regulatory requirements or ethical issues pertaining to research involving human subjects.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>(b) The following clause shall be included in solicitations and resultant contracts involving human subjects:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Protection of Human Subjects (JAN 2001)</HD>
                <P>(a) The Contractor agrees that the rights and welfare of human subjects involved in research under this contract shall be protected in accordance with 45 CFR Part 46 and with the Contractor's current Assurance of Compliance on file with the Office for Protection from Research Risks (OPRR), National Institutes of Health (NIH). The Contractor further agrees to provide certification at least annually that the Institutional Review Board has reviewed and approved the procedures, which involve human subjects in accordance with 45 CFR Part 46 and the Assurance of Compliance.</P>
                <P>(b) The Contractor shall bear full responsibility for the performance of all work and services involving the use of human subjects under this contract in a proper manner and as safely as is feasible. The parties hereto agree that the Contractor retains the right to control and direct the performance of all work under this contract. Nothing in this contract shall be deemed to constitute the Contractor or any subcontractor, agent or employee of the Contractor, or any other person, organization, institution, or group of any kind whatsoever, as the agent or employee of the Government. The Contractor agrees that it has entered into this contract and will discharge its obligations, duties, and undertakings and the work pursuant thereto, whether requiring professional judgement or otherwise, as an independent contractor without imputing liability on the part of the Government for the acts of the Contractor or its employees.</P>
                <P>(c) If at any time during the performance of this contract, the Contracting officer determines, in consultation with the OPRR, NIH, that the Contractor is not in compliance with any of the requirements and/or standards stated in paragraphs (a) and (b) above, the Contracting Officer may immediately suspend, in whole or in part, work and further payments under this contract until the Contractor corrects the noncompliance. Notice of the suspension may be communicated by telephone and confirmed in writing. If the Contractor fails to complete corrective action within the period of time designated in the Contracting Officer's written notice of suspension, the Contracting Officer may, in consultation with OPRR, NIH, terminate this contract in a whole or in part, and the Contractor's name may be removed form the list of those contractors with approved Health and Human Services Human Subject Assurances.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[66 FR 4255, Jan. 17, 2001, as amended at 70 FR 41, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>352.270-9</SECTNO>
              <SUBJECT>Care of laboratory animals.</SUBJECT>
              <P>(a) The following provision shall be included in solicitations expected to involve vertebrate animals:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notice to Offerors of Requirement for Compliance with the Public Health Service Policy on Humane Care and Use of Laboratory Animals (Revised 1986, Reprinted 2000)</HD>

                <P>The PHS Policy on Humane Care and Use of Laboratory Animals by Awardee Institutions establishes a number of requirements for research activities involving animals. Before award may be made to an applicant organization, the organization shall file, with the Office of Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), a written Animal Welfare Assurance which commits the organization to comply with the provisions of the PHS Policy on Humane Care and Use of Laboratory Animals by Awardee Institutions, the Animal Welfare Act, and the Guide for the Care and Use of Laboratory Animals prepared by the Institute of Laboratory Animal Resources. In accordance with the PHS Policy on Humane Care and Use of Laboratory Animals by Awardee Institutions, applicant organizations must establish a committee, qualified through the experience and expertise of its members, to oversee the institution's animal program, facilities and procedures. No award involving the use of animals shall be made unless the Animal Welfare Assurance has been approved by OPRR. Prior to award, the Contracting Officer will notify Contractor(s) selected for projects that involve live vertebrate animals that an Animal Welfare <PRTPAGE P="85"/>Assurance is required. The Contracting Officer will request that OPRR negotiate an acceptable Animal Welfare Assurance with those Contractor(s). For further information, OPRR may be contacted at NIH, Bethesda, Maryland 20892 (301-496-7041).</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>(b) The following clause shall be included in all solicitations and resultant contracts involving research on vertebrate animals:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Care of Live Vertebrate Animals (JAN 2001)</HD>
                <P>(a) Before undertaking performance of any contract involving animal related activities, the Contractor shall register with the Secretary of Agriculture of the United States in accordance with 7 U.S.C. 2136 and 9 CFR sections 2.25 through 2.28. The Contractor shall furnish evidence of the registration to the Contracting Officer.</P>
                <P>(b) The Contractor shall acquire vertebrate animals used in research from a dealer licensed by the Secretary of Agriculture under 7 U.S.C. 2133 and 9 CFR Sections 2.1-2.11, or from a source that is exempt from licensing under those sections.</P>

                <P>(c) The Contractor agrees that the care and use of any live vertebrate animals used or intended for use in the performance of this contract will conform with the PHS Policy on Humane Care of Use of Laboratory Animals, the current Animal Welfare Assurance, the Guide for the Care and Use of Laboratory Animals prepared by the Institute of Laboratory Animal Resources and the pertinent laws and regulations of the United States Department of Agriculture (see 7 U.S.C. 2131 <E T="03">et seq.</E> and 9 CFR Subchapter A, Parts 1-4). In case of conflict between standards, the more stringent standard shall be used.</P>
                <P>(d) If at any time during performance of this contract, the Contracting Officer determines, in consultation with the Office for Protection from Research Risks (OPRR), National Institutes of Health (NIH), that the Contractor is not in compliance with any of the requirements and/or standards stated in paragraphs (a) through (c) above, the Contracting Officer may immediately suspend, in whole or in part, work and further payments under this contract until the Contractor corrects the noncompliance. Notice of the suspension may be communicated by telephone and confirmed in writing. If the Contractor fails to complete corrective action within the period of time designated in the Contracting Officer's written notice of suspension, the Contracting Officer may, in consultation with OPRR, NIH, terminate this contract in whole or in part, and the Contractor's name may be removed from the list of those contractors with approved PHS Animal Welfare Assurances.</P>
              </EXTRACT>
              <NOTE>
                <HD SOURCE="HED">Note:</HD>
                <P>Note: The Contractor may request registration of its 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 its 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 Animal Care Staff, USDA/APHIS, 4700 River Road, Riverdale, Maryland 20737.</P>
              </NOTE>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[66 FR 4255, Jan. 17, 2001, as amended at 70 FR 41, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>352.333-7001</SECTNO>
              <SUBJECT>Choice of Law (Overseas).</SUBJECT>
              <P>As prescribed in 333.215-70, use the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Choice of Law (Overseas)</HD>
                <P>This contract shall be construed and interpreted in accordance with the substantive laws of the United States of America. By the execution of this contract, the contractor expressly agrees to waive any rights to invoke the jurisdiction of local national courts where this contract is performed and agrees to accept the exclusive jurisdiction of the United States Armed Services Board of Contract Appeals and the United States Court of Federal Claims for hearing and determination of any and all disputes that may arise under the Disputes clause of this contract.</P>
              </EXTRACT>
              <CITA>[70 FR 41, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 353</EAR>
          <HD SOURCE="HED">PART 353—FORMS</HD>
          <SUBPART>
            <HD SOURCE="HED">Subpart 353.3—Illustrations of Forms</HD>
            <AUTH>
              <HD SOURCE="HED">Authority:</HD>
              <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
            </AUTH>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>66 FR 4262, Jan. 17, 2001, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>353.370-674</SECTNO>
              <SUBJECT>Form HHS 674, Structured Approach Profit/Fee Objective.</SUBJECT>
              <P>This form is available from local cost advisory personnel. For copies of the form, contact the Program Support Center at (301) 443-6740.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="86"/>
        <HD SOURCE="HED">SUBCHAPTER T—HHS SUPPLEMENTATIONS</HD>
        <PART>
          <EAR>Pt. 370</EAR>
          <HD SOURCE="HED">PART 370—SPECIAL PROGRAMS AFFECTING ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 370.1—Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>370.101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>370.102</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 370.2—Indian Preference in Employment, Training, and Subcontracting Opportunities</HD>
              <SECTNO>370.201</SECTNO>
              <SUBJECT>Statutory requirements.</SUBJECT>
              <SECTNO>370.202</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>370.203</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>370.204</SECTNO>
              <SUBJECT>Compliance enforcement.</SUBJECT>
              <SECTNO>370.205</SECTNO>
              <SUBJECT>Tribal preference requirements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 370.3—Acquisitions Involving Human Subjects</HD>
              <SECTNO>370.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>370.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>370.302</SECTNO>
              <SUBJECT>Types of assurances.</SUBJECT>
              <SECTNO>370.303</SECTNO>
              <SUBJECT>Notice to offerors.</SUBJECT>
              <SECTNO>370.304</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 370.4—Acquisitions Involving the Use of Laboratory Animals</HD>
              <SECTNO>370.400</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>370.401</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>370.402</SECTNO>
              <SUBJECT>Assurances.</SUBJECT>
              <SECTNO>370.403</SECTNO>
              <SUBJECT>Notice to offerors.</SUBJECT>
              <SECTNO>370.404</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 370.5—Acquisitions Under the Buy Indian Act</HD>
              <SECTNO>370.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>370.501</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>370.502</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>370.503</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <SECTNO>370.504</SECTNO>
              <SUBJECT>Competition.</SUBJECT>
              <SECTNO>370.505</SECTNO>
              <SUBJECT>Responsibility determinations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>66 FR 4262, Jan. 17, 2001, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 370.1—Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities</HD>
            <SECTION>
              <SECTNO>370.101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) It is the policy of HHS that all meetings, conferences, and seminars be accessible to persons with disabilities. For the purpose of this policy, accessibility is defined as both physical access to meeting, conference, and seminar sites, and aids and services to enable individuals with sensory disabilities to fully participate in meetings, conferences, and seminars.</P>
              <P>(b) In regard to acquisition, the policy is applicable to all contracts where the statement of work requires the contractor to conduct meetings, conferences, or seminars that are open to the public or involve HHS personnel, but not to ad hoc meetings that may be necessary or incidental to contract performance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.102</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) The contracting officer shall include the clause in 352.270-1 in every solicitation and resulting contract when the statement of work requires the contractor to conduct meetings, conferences, or seminars in accordance with 370.101(b).</P>
              <P>(b) The project officer shall be responsible for obtaining, reviewing, and approving the contractor's plan, which is to be submitted in response to paragraph (a) of the contract clause in 352.270-1. A consolidated or master plan for contracts requiring numerous meetings, conferences, or seminars will be acceptable. The project officer, prior to approving the plan, should consult with the Office of Engineering Services serving the region where the meeting, conference, or seminar is to be held, to assure that the contractor's plan meets the accessibility requirements of the contract clause. The Office of Engineering Services should determine the adequacy of the contractor's plan, and notify the project officer, in writing, within ten (10) working days of receiving the request from the project officer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="87"/>
            <HD SOURCE="HED">Subpart 370.2—Indian Preference in Employment, Training, and Subcontracting Opportunities</HD>
            <SECTION>
              <SECTNO>370.201</SECTNO>
              <SUBJECT>Statutory requirements.</SUBJECT>

              <P>Section 7(b) of the Indian Self-Determination and Education Assistance Act, Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b), requires:
              </P>
              <EXTRACT>
                <P>“Any contract, subcontract, grant, or subgrant pursuant to this Act, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible:</P>
                <P>(1) Preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and</P>
                <P>(b) Preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian-owned economic enterprises as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77).”</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>370.202</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>

              <P>The Indian Preference clause set forth in 352.270-2 and the Indian Preference Program clause set forth in 352.270-3 have been developed to implement section 7 (b) of Public Law 93-638 for all activities of the Department. The clauses shall be used by any affected departmental contracting activity as follows, except solicitations issued and contracts awarded pursuant to Title I of Public Law 93-638 (25 U.S.C. 450 <E T="03">et seq.</E>) are exempted:</P>
              <P>(a) The Indian Preference clause (352.270-2) shall be included in each solicitation and resultant contract, regardless of dollar amount:</P>
              <P>(1) When the contract is to be awarded pursuant to an act specifically authorizing contracts with Indian organizations; or</P>
              <P>(2) Where the work to be performed under the contract is specifically for the benefit of Indians and is in addition to any incidental benefits which might otherwise accrue to the general public.</P>
              <P>(b) The Indian Preference Program clause (352.270-3) shall be included in each solicitation and resultant contract when:</P>
              <P>(1) The dollar amount of the acquisition is expected to equal or exceed $50,000 for nonconstruction work or $100,000 for construction work;</P>
              <P>(2) The Indian Preference clause is to be included in the solicitation and resultant contract; and</P>
              <P>(3) The determination is made, prior to solicitation, that the work to be performed under the resultant contract will take place in whole or in substantial part on or near an Indian reservation(s). In addition, the Indian Preference Program clause may be included in any solicitation and resultant contract below the $50,000 or $100,000 level for nonconstruction or construction contracts, respectively, but which meet the requirements of paragraphs (b)(2) and (3) of this section 370.202, and, in the opinion of the contracting activity, offer substantial opportunities for Indian employment, training, and subcontracting.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.203</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For purposes of this subpart 370.2, the following definitions shall apply:</P>
              <P>(a) <E T="03">Indian</E> means a person who is a member of an Indian Tribe. If the contractor has reason to doubt that a person seeking employment preference is an Indian, the contractor shall grant the preference but shall require the individual to provide evidence within thirty (30) days from the Tribe concerned that the person is a member of the Tribe.</P>
              <P>(b) <E T="03">Indian Tribe</E> means an Indian Tribe, pueblo, band, nation, or other organized group or community, including any Alaska Native Village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.</P>
              <P>(c) <E T="03">Indian organization</E> means the governing body of any Indian Tribe or entity established or recognized by such governing body in accordance with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C. 1451).</P>
              <P>(d) <E T="03">Indian-owned economic enterprise</E> means any Indian-owned commercial, industrial, or business activity established or organized for the purpose of <PRTPAGE P="88"/>profit, provided that such Indian ownership shall constitute not less than 51 percent of the enterprise, and the ownership shall encompass active operation and control of the enterprise.</P>
              <P>(e) <E T="03">Indian reservation</E> includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601 <E T="03">et seq.</E>)</P>
              <P>(f) <E T="03">On or near an Indian Reservation</E> means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably be expected to commute to and from in the course of a work day.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.204</SECTNO>
              <SUBJECT>Compliance enforcement.</SUBJECT>
              <P>(a) The concerned contracting activity shall be responsible for conducting periodic reviews to insure contractor compliance with the requirements of the clauses set forth in 352.270-2 and 352.270-3. These reviews may be conducted with the assistance of the Indian Tribe(s) concerned.</P>
              <P>(b) Complaints of noncomplaince with the requirements of the clauses set forth in 352.270-2 and 352.270-3 which are filed in writing with the contracting activity shall be promptly investigated and resolved by the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.205</SECTNO>
              <SUBJECT>Tribal preference requirements.</SUBJECT>
              <P>(a) Where the work under a contract is to be performed on an Indian reservation, the contracting activity may supplement the clause set forth in 352.270-3 by adding specific Indian preference requirements of the Tribe on whose reservation the work is to be performed. The supplemental requirements shall be jointly developed for the contract by the contracting activity and the Tribe. Supplemental preference requirements must represent a further implementation of the requirements of section 7(b) of Public Law 93-638 and must be approved by the affected program director and approved for legal sufficiency by the Business and Administrative Law Division, OGC, or a regional attorney before being added to a solicitation and resultant contract. Any supplemental preference requirements to be added to the clause in 352.270-3 shall be included in the solicitation and clearly identified in order to insure uniform understanding of the additional requirements by all prospective bidders or offerors.</P>
              <P>(b) Nothing in this part shall be interpreted to preclude Tribes from independently developing and enforcing their own tribal preference requirements. Such independently developed tribal preference requirements shall not, except as provided in paragraph (a) of this section, become a requirement in contracts covered under this subpart 370.2, and must not conflict with any Federal statutory or regulatory requirement concerning the award and administration of contracts.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 370.3—Acquisitions Involving Human Subjects</HD>
            <SECTION>
              <SECTNO>370.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart applies to all research and development activities involving human subjects conducted under contract (see 45 CFR 46.102(d) and (f)).</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>It is the policy of the Department of Health and Human Services (DHHS) that no contract involving human subjects shall be awarded until acceptable assurance has been given that the activity will be subject to initial and continuing review by an appropriate Institutional Review Board (IRB) as described in DHHS regulations at 45 CFR 46.103. An applicable Multiple Project Assurance (MPA) or Single Project Assurance (SPA), approved by the Office for Protection from Research Risks (OPRR), National Institutes of Health (NIH), shall be required of each contractor, subcontractor, or cooperating institution having responsibility for human subjects involved in performance of the contract. The OPRR, NIH, is responsible for negotiating assurances covering all DHHS-supported or DHHS-conducted activities involving human subjects. Contracting officers shall be guided by OPRR regarding nonaward or termination of a contract due to inadequate assurance or breach <PRTPAGE P="89"/>of assurance for protection of human subjects.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.302</SECTNO>
              <SUBJECT>Types of assurances.</SUBJECT>
              <P>Assurances may be one of two types:</P>
              <P>(a) <E T="03">Multiple Project Assurance (MPA).</E> An MPA describes the oversight procedures applicable to all DHHS-supported human subjects activities within an institution having a significant number of concurrent projects. An MPA listed in OPRR's current “List of Institutions Which Have an Approved MPA” will be considered acceptable for purposes of this policy.</P>
              <P>(b) <E T="03">Single Project Assurance (SPA).</E> An SPA describes the oversight procedures applicable to a single DHHS-supported human subjects activity. SPAs may be approved in modified form to meet unusual requirements. SPAs are not solicited from institutions with OPRR approved MPAs. Copies of proposals selected for negotiation and requiring one or more SPAs shall be forwarded to the Human Subjects Assurance Branch, OPRR, NIH MSC 7507, 6100 Executive Blvd., Room 3B01, Rockville, Maryland 20892, as early as possible so that timely action may be taken to secure the SPA(s).</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.303</SECTNO>
              <SUBJECT>Notice to offerors.</SUBJECT>
              <P>(a) Solicitations shall contain the notice to offerors in 352.270-8(a) whenever contract performance is expected to involve human subjects.</P>
              <P>(b) IRB approval of proposals submitted by institutions having an OPRR-approved MPA should be certified in the manner required by instructions for completion of the contract proposal; or by completion of a DHHS Form 310, Protection of Human Subjects Assurance Identification/Certification/Declaration; or by letter indicating the institution's OPRR-assigned MPA number, the date of IRB review and approval, and the type of review (convened or expedited). The date of IRB approval must not be more than 12 months prior to the deadline for proposal submission.</P>
              <P>(c) SPAs for contractors, subcontractors, or cooperating institutions generally will not be requested prior to determination that a contract proposal has been selected for negotiation. When an SPA is submitted, it provides certification for the initial contract period. No additional documentation is required. If the contract provides for additional years to complete the project, the noncompetitive renewal proposal shall be certified in the manner described in the preceding paragraph.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.304</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The clause set forth in 352.270-8(b) shall be inserted in all solicitations and resultant contracts involving human subjects.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 370.4—Acquisitions Involving the Use of Laboratory Animals</HD>
            <SECTION>
              <SECTNO>370.400</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart applies to all research, research training and biological testing activities involving live vertebrate animals conducted under contract (see Public Health Service Policy on Humane Care and Use of Laboratory Animals (PHS Policy), Rev. 1986, Repr. 1996).</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.401</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) It is the policy of the Department of Health and Human Services (DHHS) and the Public Health Service agencies that no contract involving live vertebrate animals shall be awarded until acceptable assurance has been given that the activity will be subject to initial and continuing review by an appropriate Institutional Animal Care and Use Committee (IACUC) as described in the PHS Policy at IV. B. 6. and 7. An applicable Full Animal Welfare Assurance or Interinstitutional Agreement/Assurance, approved by the Office for Protection from Research Risks (OPRR), National Institutes of Health (NIH), shall be required of each contractor, subcontractor, or cooperating institution having responsibility for animal care and use involved in performance of the contract (see PHS Policy II., IV. A., and V. B.).</P>

              <P>(b) The OPRR, NIH, is responsible for negotiating assurances covering all DHHS/PHS-supported or DHHS/PHS-conducted activities involving the care and use of live vertebrate animals. Contracting officers shall be guided by <PRTPAGE P="90"/>OPRR regarding adequate animal care, and use, approval, disapproval, restriction, or withdrawal of approval of assurances (see PHS Policy V. A.).</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.402</SECTNO>
              <SUBJECT>Assurances.</SUBJECT>
              <P>(a) Assurances may be one of two types:</P>
              <P>(1) <E T="03">Full Animal Welfare Assurance (AWA).</E> An AWA describes the institution's complete program for the care and use of animals, including but not limited to the facilities, occupational health, training, veterinary care, IACUC procedures and lines of authority and responsibility. An AWA listed in OPRR's list of institutions which have an approved full AWA will be considered acceptable for purposes of this policy.</P>
              <P>(2) <E T="03">Interinstitutional Agreement/Assurance (IAA).</E> An IAA describes the arrangements between an offeror and usually a subcontractor where animal activities will occur. An IAA is limited to the specific award or single project.</P>
              <P>(b) Copies of proposals selected for negotiation and requiring an assurance shall be forwarded to the Assurance Branch, Division of Animal Welfare, OPRR, NIH MSC 7507, 6100 Executive Blvd., Room 3B01, Rockville, Maryland 20892, as early as possible in order that timely action may be taken to secure the necessary assurances.</P>
              <P>(c) A contractor providing animal care services at an assured entity, such as a Government-owned, contractor-operated (GOCO) site, does not need a separate assurance because the GOCO site normally covers the contractor services in the GOCO site assurance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.403</SECTNO>
              <SUBJECT>Notice to offerors.</SUBJECT>
              <P>Solicitations shall contain the notice to offerors in 352.270-9(a) whenever contract performance is expected to involve the use of live vertebrate animals.</P>
              <P>(a) For offerors having a full AWA on file with OPRR, IACUC approval of the use of animals shall be submitted in the manner required by instructions for completion of the contract proposal, but prior to the technical review of the proposal. The date of IACUC review and approval must not be more than 36 months prior to the deadline for proposal submission.]</P>
              <P>(b) Non-assured offerors are not required to submit assurances or IACUC approval with proposals. OPRR will contact contractors, subcontractors and cooperating institutions to negotiate necessary assurances and verify IACUC approvals when requested by appropriate DHHS/PHS staff.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.404</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The clause set forth in 352.270-9(b) shall be included in all solicitations and resultant contracts involving the care and use of live vertebrate animals.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 370.5—Acquisitions Under the Buy Indian Act</HD>
            <SECTION>
              <SECTNO>370.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart sets forth the policy on preferential acquisition from Indians under the negotiation authority of the Buy Indian Act. Applicability of this subpart is limited to acquisitions made by or on behalf of the Indian Health Service of the Public Health Service.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.501</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) The Indian Health Service will utilize the negotiation authority of the Buy Indian Act to give preference to Indians whenever the use of that authority is authorized and is practicable. The Buy Indian Act, 25 U.S.C. 47, prescribes the application of the advertising requirements of section 3709 of the Revised Statutes to the acquisition of Indian supplies. As set out in 25 U.S.C. 47, the Buy Indian Act provides as follows:
              </P>
              <EXTRACT>
                <P>So far as may be practicable Indian labor shall be employed, and purchases of the products (including, but not limited to printing, notwithstanding any other law) of Indian industry may be made in open market in the discretion of the Secretary of the Interior.</P>
              </EXTRACT>
              

              <P>(b) The functions, responsibilities, authorities, and duties of the Secretary of the Interior for maintenance and operation of hospital and health facilities for Indians and for the conservation of the health of Indians are transferred to the Surgeon General of the United States under the supervision of the Secretary of Health and Human Services, 42 U.S.C. 2001 (a). Accordingly, the Secretary of Health and Human Services is authorized to use the Buy Indian <PRTPAGE P="91"/>Act in the acquisition of products of Indian industry in connection with the maintenance and operation of hospital and health facilities for Indians and for the conservation of the health of Indians. This authority has been delegated exclusively to the Indian Health Service and is not available for use by any other HHS component (unless that component is making an acquisition on behalf of the Indian Health Service).</P>
              <P>(c) Use of the Buy Indian Act negotiation authority has been emphasized in subsequent legislation, particularly Public Law 94-437 and Public Law 96-537.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.502</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Buy Indian contract</E> means any contract involving activities covered by the Buy Indian Act that is negotiated under the provisions of 41 U.S.C. 252(c) and 25 U.S.C. 47 between an Indian firm and a contracting officer representing the Indian Health Service.</P>
              <P>
                <E T="03">Indian</E> means a member of any tribe, pueblo, band, group, village or community that is recognized by the Secretary of the Interior as being Indian or any individual or group of individuals that is recognized by the Secretary of the Interior or the Secretary of Health and Human Services. The Secretary of Health and Human Services in making determinations may take into account the determination of the tribe with which affiliation is claimed.</P>
              <P>
                <E T="03">Indian firm</E> means a sole enterprise, partnership, corporation, or other type of business organization owned, controlled, and operated by one or more Indians (including, for the purpose of sections 301 and 302 of Public Law 94-437, former or currently federally recognized Indian tribes in the State of New York) or by an Indian firm; or a nonprofit firm organized for the benefit of Indians and controlled by Indians (see 370.503(a)).</P>
              <P>
                <E T="03">Product of Indian industry</E> means anything produced by Indians through physical labor or by intellectual effort involving the use and application of skills by them.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.503</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <P>(a) <E T="03">Indian ownership.</E> The degree of Indian ownership of an Indian firm shall be at least 51 percent during the period covered by a Buy Indian contract.</P>
              <P>(b) <E T="03">Joint ventures.</E> An Indian firm may enter into a joint venture with other entities for specific projects as long as the Indian firm is the managing partner. However, the joint venture must be approved by the contracting officer prior to the award of a contract under the Buy Indian Act.</P>
              <P>(c) <E T="03">Bonds.</E> In the case of contracts for the construction, alteration, or repair of public buildings or public works, performance and payment bonds are required by the Miller Act (40 U.S.C. 270a-270f) and FAR part 28. In the case of contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe, bonds are not required. However, bonds are required when dealing with private business entities which are owned by an Indian tribe or members of an Indian tribe. Bonds may be required of private business entities which are joint ventures with, or subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe. A bid guarantee or bid bond is required only when a performance or payment bond is required.</P>
              <P>(d) <E T="03">Indian preference in employment, training and subcontracting.</E> Contracts awarded under the Buy Indian Act are subject to the requirements of section 7(b) of the Indian Self-Determination and Education Assistance Act 25 U.S.C. 450e, which requires that preference be given to Indians in employment, training, and subcontracting. The Indian Preference clause set forth in 352.270-2 shall be included in all Buy Indian solicitations and resultant contracts. The Indian Preference Program clause set forth in 352.270-3 shall be used as specified in 370.202(b). All requirements set forth in subpart 370.2 which are applicable to the instant Buy Indian acquisition shall be followed by the contracting officer, e.g., sections 370.204 and 370.205.</P>
              <P>(e) <E T="03">Subcontracting.</E> Not more than 50 percent of the work to be performed under a prime contract awarded pursuant to the Buy Indian Act shall be subcontracted to other than Indian firms. For this purpose, work to be performed <PRTPAGE P="92"/>does not include the provision of materials, supplies, or equipment.</P>
              <P>(f) <E T="03">Wage rates.</E> A determination of the minimum wage rates by the Secretary of Labor as required by the Davis-Bacon Act (40 U.S.C. 276a) shall be included in all contracts awarded under the Buy Indian Act for over $2,000 for construction, alteration, or repair, including painting and decorating, of public buildings and public works, except contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe. The wage rate determination is to be included in contracts with private business entities even if they are owned by an Indian tribe or a member of an Indian tribe and in connection with joint ventures with, or subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.504</SECTNO>
              <SUBJECT>Competition.</SUBJECT>
              <P>(a) Contracts to be awarded under the Buy Indian Act shall be subject to competition among Indians or Indian concerns to the maximum extent that competition is determined by the contracting officer to be practicable. When competition is determined not to be practicable, a Justification for Other than Full and Open Competition shall be prepared in accordance with 306.303 and subsequently retained in the contract file.</P>
              <P>(b) Solicitations must be synopsized and publicized in the Commerce Business Daily and copies of the synopses sent to the tribal office of the Indian tribal government directly concerned with the proposed acquisition as well as to Indian concerns and others having a legitimate interest. The synopsis should state that the acquisition is restricted to Indian firms under the Buy Indian Act.</P>
            </SECTION>
            <SECTION>
              <SECTNO>370.505</SECTNO>
              <SUBJECT>Responsibility determinations.</SUBJECT>
              <P>(a) A contract may be awarded under the Buy Indian Act only if it is first determined that the project or function to be contracted for is likely to be satisfactorily performed under that contract and the project or function is likely to be properly completed or maintained under that contract.</P>
              <P>(b) The determination called for by paragraph (a) of this section, to be made prior to the award of a contract, will be made in writing by the contracting officer reflecting an analysis of the standards set forth in FAR 9.104-1.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 4 (10-1-05 Edition)</LRH>
      <RRH>Department of Agriculture</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="93"/>
          <HD SOURCE="HED">CHAPTER 4—DEPARTMENT OF AGRICULTURE</HD>
          <P>(Parts 400 to 499)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>401</PT>
          <SUBJECT>Agriculture Acquisition Regulation System</SUBJECT>
          <PG>95</PG>
          <PT>402</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>100</PG>
          <PT>403</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>100</PG>
          <PT>404</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>102</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>405</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>104</PG>
          <PT>406</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>104</PG>
          <PT>407</PT>
          <SUBJECT>Acquisition planning</SUBJECT>
          <PG>105</PG>
          <PT>408</PT>
          <SUBJECT>Required sources of supplies and services</SUBJECT>
          <PG>106</PG>
          <PT>409</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>108</PG>
          <PT>410</PT>
          <SUBJECT>Market research</SUBJECT>
          <PG>110</PG>
          <PT>411</PT>
          <SUBJECT>Describing agency needs</SUBJECT>
          <PG>110</PG>
          <PT>412</PT>
          <SUBJECT>Acquisition of commercial items</SUBJECT>
          <PG>112</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>413</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>113</PG>
          <PT>414</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>113</PG>
          <PT>415</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>114</PG>
          <PT>416</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>116</PG>
          <PT>417</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>117</PG>
          <PT>418</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>419</PT>
          <SUBJECT>Small business programs</SUBJECT>
          <PG>118</PG>
          <PT>420-421</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>422</PT>
          <SUBJECT>Application of labor laws to Government acquisitions</SUBJECT>
          <PG>119</PG>
          <PT>423</PT>
          <SUBJECT>Environment, energy and water efficiency, renewable energy technologies, occupational safety, and drug-free workplace</SUBJECT>
          <PG>121</PG>
          <PT>424</PT>
          <SUBJECT>Protection of privacy and freedom of information</SUBJECT>
          <PG>123<PRTPAGE P="94"/>
          </PG>
          <PT>425</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>124</PG>
          <PT>426</PT>
          <SUBJECT>Other socioeconomic programs</SUBJECT>
          <PG>125</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>427</PT>
          <SUBJECT>Patents, data, and copyrights</SUBJECT>
          <PG>126</PG>
          <PT>428</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>126</PG>
          <PT>429</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>430</PT>
          <SUBJECT>Cost Accounting Standards Administration</SUBJECT>
          <PG>127</PG>
          <PT>431</PT>
          <SUBJECT>Contract cost principles and procedures</SUBJECT>
          <PG>128</PG>
          <PT>432</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>128</PG>
          <PT>433</PT>
          <SUBJECT>Protests, disputes and appeals</SUBJECT>
          <PG>132</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>434</PT>
          <SUBJECT>Major system acquisition</SUBJECT>
          <PG>134</PG>
          <PT>435</PT>
          <SUBJECT>Research and development contracting</SUBJECT>
          <PG>135</PG>
          <PT>436</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>135</PG>
          <PT>437</PT>
          <SUBJECT>Service contracting</SUBJECT>
          <PG>138</PG>
          <PT>438</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>439</PT>
          <SUBJECT>Acquisition of information technology</SUBJECT>
          <PG>139</PG>
          <PT>440</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>441</PT>
          <SUBJECT>Acquisition of utility services</SUBJECT>
          <PG>140</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>442</PT>
          <SUBJECT>Contract administration</SUBJECT>
          <PG>141</PG>
          <PT>443-444</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>445</PT>
          <SUBJECT>Government property</SUBJECT>
          <PG>141</PG>
          <PT>446</PT>
          <SUBJECT>Quality assurance</SUBJECT>
          <PG>142</PG>
          <PT>447</PT>
          <SUBJECT>Transportation</SUBJECT>
          <PG>142</PG>
          <PT>448</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>449</PT>
          <SUBJECT>Termination of contracts</SUBJECT>
          <PG>143</PG>
          <PT>450</PT>
          <SUBJECT>Extraordinary contractual actions</SUBJECT>
          <PG>143</PG>
          <PT>451</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>452</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>145</PG>
          <PT>453</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>155</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="95"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 401</EAR>
          <HD SOURCE="HED">PART 401—AGRICULTURE ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>401.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 401.1—Purpose, Authority, Issuance</HD>
              <SECTNO>401.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>401.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>401.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>401.105</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
              <SECTNO>401.105-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <SECTNO>401.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <SECTNO>401.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <SECTNO>401.106</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
              <SECTNO>401.170</SECTNO>
              <SUBJECT>Electronic access to regulatory information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 401.2—Administration</HD>
              <SECTNO>401.201</SECTNO>
              <SUBJECT>Maintenance of the FAR.</SUBJECT>
              <SECTNO>401.201-1</SECTNO>
              <SUBJECT>The two councils.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 401.3—Agency Acquisition Regulations</HD>
              <SECTNO>401.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>401.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>
              <SECTNO>401.370</SECTNO>
              <SUBJECT>Exclusions.</SUBJECT>
              <SECTNO>401.371</SECTNO>
              <SUBJECT>AGAR Advisories.</SUBJECT>
              <SECTNO>401.372</SECTNO>
              <SUBJECT>Departmental directives.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 401.4—Deviations From the FAR and AGAR</HD>
              <SECTNO>401.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>401.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>401.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 401.6—Contracting Authority and Responsibilities</HD>
              <SECTNO>401.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>401.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
              <SECTNO>401.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <SECTNO>401.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
              <SECTNO>401.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>401.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part presents basic policies and general information about the Department of Agriculture's (USDA) Acquisition Regulation, subsequently referred to as the AGAR. The AGAR is an integral part of the Federal Acquisition Regulations System.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 401.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>401.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) The AGAR provides for the codification and publication of uniform policies and procedures for acquisitions by contracting activities within USDA.</P>
              <P>(b) The purpose of the AGAR is to implement the Federal Acquisition Regulation (FAR), where further implementation is needed, and to supplement the FAR when coverage is needed for subject matter not covered in the FAR. The AGAR is not by itself a complete document, as it must be used in conjunction with the FAR.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated authority to promulgate Departmental acquisition regulations.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>The FAR and AGAR apply to all USDA acquisitions of supplies and services (including construction) which obligate appropriated funds, unless otherwise specified in this chapter or excepted by law.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.105</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>401.105-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <P>(a) The AGAR is codified in the Code of Federal Regulations (CFR) as Chapter 4 of Title 48, Federal Acquisition Regulations System, to implement and supplement Chapter 1 which constitutes the FAR. Parts 400 through 499 have been assigned to USDA by the Office of the Federal Register.</P>

              <P>(b) The AGAR and its subsequent changes are published in:<PRTPAGE P="96"/>
              </P>
              <P>(1) Daily issues of the <E T="04">Federal Register</E>,</P>
              <P>(2) Cumulative form in the CFR, and,</P>
              <P>(3) Electronic form on the USDA Departmental Administration Procurement Homepage (see 401.170).</P>

              <P>(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 553, provides an exception from the standard public rulemaking procedures to the extent that the rule involves a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the Administrative Procedure Act exception, and USDA agencies generally are required to provide notice and an opportunity for public comment on proposed rules (36 FR 13804, July 24, 1971). The AGAR has been promulgated and may be revised from time to time in accordance with the rulemaking procedures of the Administrative Procedure Act. The USDA also is required to publish for public comment procurement regulations in the <E T="04">Federal Register,</E> pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 418b), and FAR 1.301.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>401.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <P>AGAR coverage parallels the FAR in format, arrangement, and numbering system. However, subdivisions below the section and subsection levels may not always correlate directly to FAR designated paragraphs and subparagraphs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <P>Copies of the AGAR published in CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.106</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
              <P>The following OMB control numbers apply to USDA solicitations and specified information collections within the AGAR:</P>
              <GPOTABLE CDEF="s50,10" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">AGAR segment</CHED>
                  <CHED H="1">OMB Control No.</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">411.170</ENT>
                  <ENT>0505-0014</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">415.2</ENT>
                  <ENT>0505-0013</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">436.575</ENT>
                  <ENT>0505-0011</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">437.110</ENT>
                  <ENT>0505-0015</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">437.270</ENT>
                  <ENT>0505-0016</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">452.211-1</ENT>
                  <ENT>0505-0014</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">452.215-71</ENT>
                  <ENT>0505-0013</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">452.236-75</ENT>
                  <ENT>0505-0011</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">452.237-74</ENT>
                  <ENT>0505-0015</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">452.237-76</ENT>
                  <ENT>0505-0016</ENT>
                </ROW>
              </GPOTABLE>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52674, Sept. 30, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>401.170</SECTNO>
              <SUBJECT>Electronic access to regulatory information.</SUBJECT>

              <P>The USDA Departmental Administration Procurement Homepage provides access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and other USDA procurement policy and guidance in electronic form. The Internet address for the Procurement Homepage is URL <E T="03">http://www.usda.gov/procurement/</E>.</P>
              <CITA>[63 FR 26994, May 15, 1998, as amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 401.2—Administration</HD>
            <SECTION>
              <SECTNO>401.201</SECTNO>
              <SUBJECT>Maintenance of the FAR.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>401.201-1</SECTNO>
              <SUBJECT>The two councils.</SUBJECT>
              <P>(a) USDA's representative on the Civilian Agency Acquisition Council is designated by the SPE.</P>
              <P>(b) The Procurement Policy Division will coordinate proposed FAR revisions within USDA.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 401.3—Agency Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>401.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) The SPE, subject to the authorities in 401.103 and FAR 1.301, may issue and publish Departmental regulations, that together with the FAR, constitute Department-wide policies, procedures, solicitation provisions, and contract clauses governing the contracting process or otherwise controlling the relationship between USDA (including any of its contracting activities) and contractors or prospective contractors.<PRTPAGE P="97"/>
              </P>

              <P>(b) Each designated head of a contracting activity (HCA) is authorized to issue or authorize the issuance of, at any organizational level, internal guidance which does not have a significant effect beyond the internal operating procedures of the activity, or a significant cost or administrative impact on offerors or contractors. Internal guidance issued by contracting activities will not be published in the <E T="04">Federal Register.</E> HCA's shall ensure that the guidance, procedures, or instructions issued—</P>
              <P>(1) Are consistent with the policies and procedures contained in this chapter;</P>
              <P>(2) Follow the format, arrangement, and numbering system of this chapter to the extent practicable;</P>
              <P>(3) Contain no material which duplicates, paraphrases, or is inconsistent with this chapter; and</P>

              <P>(4) Are numbered and identified by use of alphabetical suffixes to the chapter number as follows:
              </P>
              <FP SOURCE="FP-1">4A [Reserved]</FP>
              <FP SOURCE="FP-1">4B Agricultural Research Service.</FP>
              <FP SOURCE="FP-1">4C Farm Service Agency.</FP>
              <FP SOURCE="FP-1">4D Rural Development (mission area).</FP>
              <FP SOURCE="FP-1">4E Food Safety and Inspection Service.</FP>
              <FP SOURCE="FP-1">4F [Reserved]</FP>
              <FP SOURCE="FP-1">4G Forest Service.</FP>
              <FP SOURCE="FP-1">4H [Reserved]</FP>
              <FP SOURCE="FP-1">4I Natural Resources Conservation Service.</FP>
              <FP SOURCE="FP-1">4J [Reserved]</FP>
              <FP SOURCE="FP-1">4K Food and Nutrition Service.</FP>
              <FP SOURCE="FP-1">4L Animal and Plant Health Inspection Service.</FP>
              <FP SOURCE="FP-1">4M [Reserved]</FP>
              <FP SOURCE="FP-1">4N Departmental Administration.</FP>
              <FP SOURCE="FP-1">4O-4P [Reserved]</FP>
              <FP SOURCE="FP-1">4R Office of Inspector General.</FP>
              <FP SOURCE="FP-1">4S [Reserved]</FP>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>401.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>

              <P>(a) The AGAR System is under the direct oversight and control of the SPE, who is responsible for review and issuance of all Department-wide acquisition regulations published in the <E T="04">Federal Register</E> to assure compliance with FAR part 1.</P>
              <P>(b) The SPE is also responsible for review and issuance of unpublished, Department-wide internal guidance under the AGAR System.</P>
              <P>(c) HCA's are responsible for establishment and implementation of formal procedures for oversight and control of unpublished internal guidance issued within the contracting activity to implement FAR or AGAR requirements. These procedures shall be subject to the review and approval by the SPE.</P>
              <P>(d) The SPE is responsible for evaluating coverage under the AGAR System to determine applicability to other agencies and for recommending coverage to the FAR Secretariat for inclusion in the FAR.</P>
              <P>(e) Recommendations for revision of existing FAR coverage or new FAR coverage shall be submitted by the HCA to the SPE for further action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.370</SECTNO>
              <SUBJECT>Exclusions.</SUBJECT>
              <P>Subject to the policies of FAR subpart 1.3, certain USDA acquisition policies and procedures may be excluded from the AGAR under appropriately justified circumstances, such as:</P>
              <P>(a) Subject matter which is effective for a period less than 12 months.</P>
              <P>(b) Subject matter which is instituted on an experimental basis for a reasonable period.</P>
              <P>(c) Acquisition procedures instituted on an interim basis to comply with the requirements of statute, regulation, Executive Order, OMB Circular, or OFPP Policy Letter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.371</SECTNO>
              <SUBJECT>AGAR Advisories.</SUBJECT>
              <P>The SPE may issue AGAR Advisories, consistent with the policies of the FAR and the AGAR, for the following purposes:</P>
              <P>(a) To communicate Department-wide policy and/or procedural guidance to contracting activities;</P>
              <P>(b) To delegate to procurement officials authority to make determinations or to take action to implement the policies of the FAR or the AGAR; and,</P>
              <P>(c) To establish internal policy and procedures on an interim basis, prior to incorporation in the AGAR or in a Departmental Directive.</P>

              <P>(d) AGAR Advisories are only available in electronic format on the USDA <PRTPAGE P="98"/>Procurement Web site at <E T="03">http://www.usda.gov/procurement/.</E>
              </P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>401.372</SECTNO>
              <SUBJECT>Departmental directives.</SUBJECT>
              <P>Subject to the policies of FAR 1.3, USDA from time to time may issue internal directives to establish procedures, standards, guidance, or methods of performing duties, functions, or operations. Such directives include Departmental Regulations (DR's), Departmental Notices, and Secretary's Memoranda.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 401.4—Deviations From the FAR and AGAR</HD>
            <SECTION>
              <SECTNO>401.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Requests for authority to deviate from the provisions of the FAR or the AGAR shall be submitted in writing as far in advance as the exigencies of the situation will permit. Each request for deviation shall contain the following:</P>
              <P>(a) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR and AGAR;</P>
              <P>(b) The reason why the deviation is considered necessary or would be in the best interest of the Government;</P>
              <P>(c) If applicable, the name of the contractor and identification of the contract affected;</P>
              <P>(d) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request;</P>
              <P>(e) A description of the intended effect of the deviation;</P>
              <P>(f) A statement of the period of time for which the deviation is needed; and</P>
              <P>(g) Any pertinent background information which will contribute to a full understanding of the desired deviation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <P>In individual cases, deviations from either the FAR or the AGAR will be authorized only when essential to effect a necessary acquisition or where special circumstances make such deviations clearly in the best interest of the Government. Except for cost principles, HCA's may approve individual deviations from the AGAR, after coordinating with the General Counsel and the SPE. No deviations from the FAR or AGAR may be authorized at the contracting office level. A copy of each deviation and its supporting documentation shall be provided to the SPE. Deviations from the FAR shall not be made unless such action is authorized by the SPE after consultation with the Office of the General Counsel and any other appropriate office, on the basis of a written justification stating clearly the special circumstances involved.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>Where deviations from the FAR or AGAR are considered necessary for classes of contracts, requests for authority to deviate shall be submitted in writing to the SPE for approval. The SPE may authorize class deviations from the FAR without consulting the Chairperson of the Civilian Agency Acquisition Council where urgency precludes consultation. The SPE shall subsequently inform the Chairperson of the Civilian Agency Acquisition Council of the deviation including the circumstances under which it was required.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 401.6—Contracting Authority and Responsibilities</HD>
            <SECTION>
              <SECTNO>401.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The authority and responsibility vested in the Secretary to manage USDA's acquisition function is delegated through the Assistant Secretary for Administration to the SPE. This broad authority includes, but is not limited to, the following responsibilities:</P>
              <P>(1) Prescribing and publishing Departmental acquisition policies, regulations, and procedures.</P>
              <P>(2) Taking any necessary actions consistent with policies, regulations, and procedures with respect to purchases, contracts, leases, and other transactions.</P>
              <P>(3) Designating contracting officers.</P>
              <P>(4) Establishing clear lines of contracting authority.</P>

              <P>(5) Evaluating and monitoring the performance of USDA's acquisition system.<PRTPAGE P="99"/>
              </P>
              <P>(6) Managing and enhancing career development of the contracting work force.</P>
              <P>(7) Participating in the development of Government-wide acquisition policies, regulations, and standards; and determining specific areas where government-wide performance standards should be established and applied.</P>
              <P>(8) Determining areas of Department-unique standards and developing unique Department-wide standards.</P>
              <P>(9) Certifying to the Secretary that the acquisition system meets approved standards.</P>
              <P>(b) The SPE may delegate contracting authority to the Heads of Contracting Activities (HCA's) and the responsibility to manage their acquisition function.</P>
              <P>(c) Unless prohibited by the FAR, the AGAR, or by other applicable statutes and regulations, the SPE may redelegate to HCA's the authority to make determinations as the agency head in order to implement the policies and procedures of the FAR. Such delegations shall be in writing, but need not be published.</P>
              <P>(d) Unless prohibited by the FAR, the AGAR, or by other applicable statutes or regulations, each HCA may designate one individual from the contracting activity to carry out the functions of the HCA (HCAD). The HCAD may exercise all authority delegated to the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>401.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>401.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <P>(a) <E T="03">Definitions.</E>
                <E T="03">Ratification,</E> as used in this section, means the signed, documented action taken by an authorized official to approve and sanction a previously unauthorized commitment.</P>
              <P>
                <E T="03">Unauthorized commitment,</E> as used in this section, means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government.</P>
              <P>(b) <E T="03">Policy.</E> The HCA may delegate ratification authority to the chief of the contracting office.</P>
              <P>(c) <E T="03">Procedure.</E> Whenever an official of the cognizant contracting activity who is authorized to ratify unauthorized commitments learns that a person or firm has assumed work as a result of an unauthorized commitment, that official shall take the following actions:</P>
              <P>(1) Immediately inform any person who is performing work as a result of an unauthorized commitment that the work is being performed at that person's risk;</P>
              <P>(2) Inform the individual who made the unauthorized commitment of the seriousness of the act and the possible consequences;</P>
              <P>(3) Ensure that the individual who made the unauthorized commitment furnishes all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to: a statement as to why a contracting officer was not used; why the vendor was selected and a list of sources considered; a description of work to be performed or products to be furnished; the estimated or agreed price; whether an appropriation is available for the work; and whether performance has begun. Under exceptional circumstances, such as when the individual who made the unauthorized commitment is no longer available to attest to the circumstances of the unauthorized commitment, the ratifying official may waive these requirements; and</P>
              <P>(4) Decide whether ratification is proper and proceed as follows:</P>
              <P>(i) If ratification is not justifiable, provide the cognizant program office, contracting office, and the unauthorized contractor with an explanation of the decision not to ratify.</P>
              <P>(ii) If ratification appears adequately justified, ratify the action and retain or assign the contract to a successor contracting officer if necessary.</P>
              <P>(iii) Maintain related approval, decisional, and background documents in the contract file for audit purposes.</P>
              <P>(iv) Notify the cognizant program supervisor or line officer about the final disposition of the case; the notification may include a recommendation that the unauthorized commitment should be further considered a violation of USDA's employee conduct regulations.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="100"/>
              <SECTNO>401.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>401.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>An HCA may delegate contracting authority to the extent authorized by the SPE in a general delegation of acquisition authority, by appointing qualified individuals as contracting officers, in accordance with the USDA Contracting Officer Warrant System, Departmental Regulation 5001-1.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 402</EAR>
          <HD SOURCE="HED">PART 402—DEFINITIONS OF WORDS AND TERMS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>402.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 402.1—Definitions</HD>
              <SECTNO>402.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>402.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>As used throughout this chapter, the following words and terms are used as defined in this subpart unless the context in which they are used clearly requires a different meaning, or a different definition is prescribed for a particular part or portion of a part.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 402.1—Definitions</HD>
            <SECTION>
              <SECTNO>402.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Acquisition official</E> means an individual who has been delegated authority to manage or to exercise acquisition functions and responsibilities.</P>
              <P>
                <E T="03">Agency head</E> or <E T="03">Head of the Agency</E> means the Secretary of Agriculture, Deputy Secretary, or the Assistant Secretary for Administration.</P>
              <P>
                <E T="03">Head of the contracting activity</E> (HCA) means the official who has overall responsibility for managing the contracting activity (<E T="03">i.e.,</E> Chief, Forest Service; Administrator, Agricultural Research Service; etc.), or the individual designated by such an official to carry out the functions of the HCA.</P>
              <P>
                <E T="03">Senior Procurement Executive</E> (SPE) means the agency official appointed as such by the head of the agency pursuant to Executive Order 12931. The Director, Office of Procurement and Property Management, has been designated as the USDA SPE.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26994, May 15, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 403</EAR>
          <HD SOURCE="HED">PART 403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>403.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
              <SECTNO>403.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <SECTNO>403.104</SECTNO>
              <SUBJECT>Procurement integrity.</SUBJECT>
              <SECTNO>403.104-5</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>403.104-7</SECTNO>
              <SUBJECT>Violations or possible violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.2—Contractor Gratuities to Government Personnel</HD>
              <SECTNO>403.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the gratuities clause.</SUBJECT>
              <SECTNO>403.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.3—Reports of Suspected Antitrust Violations</HD>
              <SECTNO>403.303</SECTNO>
              <SUBJECT>Reporting suspected antitrust violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.4—Contingent Fees</HD>
              <SECTNO>403.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.5—Other Improper Business Practices</HD>
              <SECTNO>403.502</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
              <SECTNO>403.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>403.603</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 403.8—Limitation on the Payment of Funds to Influence Federal Transactions</HD>
              <SECTNO>403.806</SECTNO>
              <SUBJECT>Processing suspected violations</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="101"/>
            <HD SOURCE="HED">Subpart 403.1—Safeguards</HD>
            <SECTION>
              <SECTNO>403.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>403.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>

              <P>(a) The standards of conduct for USDA procurement officials are the uniform standards established by the Office of Government Ethics in 5 CFR Part 2635, <E T="03">Standards of Ethical Conduct for Employees of the Executive Branch,</E> and FAR 3.104, <E T="03">Procurement integrity</E>.</P>
              <P>(b) Procurement officials and other employees who require advice concerning the application of standards of conduct to any acquisition issue shall obtain ethics advisory opinions from ethics advisory officials in their agency personnel offices.</P>
            </SECTION>
            <SECTION>
              <SECTNO>403.104</SECTNO>
              <SUBJECT>Procurement integrity.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>403.104-5</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>403.104-7</SECTNO>
              <SUBJECT>Violations or possible violations.</SUBJECT>
              <P>The contracting officer shall forward information concerning any violation or possible violation of the Procurement Integrity Act (41 U.S.C. 423) to the chief of the contracting office.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998. Redesignated and amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 403.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>403.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the gratuities clause.</SUBJECT>
              <P>A suspected violation of the contract clause, FAR 52.203-3, Gratuities, shall be reported immediately to the cognizant contracting officer in writing, stating the circumstances surrounding the incident(s), the date(s), and names of all parties involved. The contracting officer shall review the report for completeness, add any additional information deemed necessary and a recommendation for action, and submit the report to the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>403.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
              <P>The HCA shall review the report and consult with the Offices of General Counsel and Inspector General to determine whether further action should be pursued. If it is found that the facts and circumstances warrant further action, the HCA shall give the contractor a formal written notice which summarizes the reported violation and affords the contractor the opportunity to make a written or oral response within a reasonable, specified period after receipt of the notice. The notice shall be sent by certified mail with return receipt requested. Oral presentations shall follow the procedures outlined in FAR 3.204(b). The HCA shall furnish copies of any adverse determination to the contracting officer and the Department Debarring Officer for their subsequent considerations under FAR 3.204(c)(1) and (2), respectively.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 403.3—Reports of Suspected Antitrust Violations</HD>
            <SECTION>
              <SECTNO>403.303</SECTNO>
              <SUBJECT>Reporting suspected antitrust violations.</SUBJECT>
              <P>Contracting officers shall report the circumstances of suspected violations of antitrust laws to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 403.4—Contingent Fees</HD>
            <SECTION>
              <SECTNO>403.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
              <P>(a) A suspected misrepresentation or violation of the Covenant Against Contingent Fees shall be documented in writing by the contracting officer and reported immediately to the chief of the contracting office. The chief of the contracting office shall determine if a violation has occurred and report any violation to the Office of Inspector General. The chief of the contracting office shall take action in accordance with FAR 3.405(b).</P>
              <P>(b) If the chief of the contracting office decides to refer the case to the Department of Justice, it should be referred through the Office of Inspector General with a copy of the report and referral submitted through the HCA to the Senior Procurement Executive.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated and amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="102"/>
            <HD SOURCE="HED">Subpart 403.5—Other Improper Business Practices</HD>
            <SECTION>
              <SECTNO>403.502</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
              <P>Contracting officers shall report the circumstances of suspected violations of the Anti-Kickback Act (41 U.S.C. 51-58) to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
            <SECTION>
              <SECTNO>403.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>The HCA is authorized to accept a contract from the policy in FAR 3.601.</P>
            </SECTION>
            <SECTION>
              <SECTNO>403.603</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer.</SUBJECT>
              <P>The contracting officer, when requesting authorization under 403.602, shall prepare a written determination and findings for the signature of the HCA. The determination shall document compliance with FAR 3.603, specifying the compelling reason(s) for award, and shall be placed in the contract file.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 403.8—Limitation on the Payment of Funds to Influence Federal Transactions</HD>
            <SECTION>
              <SECTNO>403.806</SECTNO>
              <SUBJECT>Processing suspected violations.</SUBJECT>
              <P>Suspected violations of the requirements of 31 U.S.C. 1352 shall be referred to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 404</EAR>
          <HD SOURCE="HED">PART 404—ADMINISTRATIVE MATTERS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 404.2—Contract Distribution</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>404.203</SECTNO>
              <SUBJECT>Taxpayer identification information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 404.4—Safeguarding Classified Information Within Industry</HD>
              <SECTNO>404.403</SECTNO>
              <SUBJECT>Responsibilities of contracting officers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 404.6—Contract Reporting</HD>
              <SECTNO>404.601</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>404.602</SECTNO>
              <SUBJECT>Federal Procurement Data System.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 404.8—Government Contract Files</HD>
              <SECTNO>404.870</SECTNO>
              <SUBJECT>Document numbering system.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 404.11—Central Contractor Registration</HD>
              <SECTNO>404.1103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 404.70—Precontract Notices</HD>
              <SECTNO>404.7001</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 402.2—Contract Distribution</HD>
            <SECTION>
              <SECTNO>404.203</SECTNO>
              <SUBJECT>Taxpayer identification information.</SUBJECT>
              <P>(a) If the contractor furnishes taxpayer identification number (TIN) and type of organization information pursuant to solicitation provision 52.204-3 or 52.212-3, and the USDA Office of the Chief Financial Officer, Controller Operations Division, New Orleans will be the payment office, that information will be entered into the Foundation Financial Information System (FFIS) in accordance with FFIS Vendor Table Maintenance Procedures set forth in FFIS Bulletins issued by the Office of the Chief Financial Officer and AGAR Advisories issued by the Office of Procurement and Property Management.</P>
              <P>(b) Separate submission of the TIN or type of organization information, in accordance with 52.204-3 or 52.212-3, is not required for contractors registered in the Central Contractor Registration (CCR) database.</P>
              <CITA>[70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="103"/>
            <HD SOURCE="HED">Subpart 404.4—Safeguarding Classified Information Within Industry</HD>
            <SECTION>
              <SECTNO>404.403</SECTNO>
              <SUBJECT>Responsibilities of contracting officers.</SUBJECT>
              <P>When a proposed solicitation is likely to require access to classified information, the contracting officer shall consult with the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management, regarding the procedures that must be followed.</P>
              <CITA>[70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 404.6—Contract Reporting</HD>
            <SECTION>
              <SECTNO>404.601</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>404.602</SECTNO>
              <SUBJECT>Federal Procurement Data System.</SUBJECT>
              <P>(a) Contracting activities shall report contract actions into the Federal Procurement Data System in accordance with the instructions issued or distributed by the SPE.</P>
              <P>(b) The unique identifier for each contract action reported to the Federal Procurement Data System shall begin with the two-letter USDA Agency Prefix “AG”.</P>
              <CITA>[70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 404.8—Government Contract Files</HD>
            <SECTION>
              <SECTNO>404.870</SECTNO>
              <SUBJECT>Document numbering system.</SUBJECT>
              <P>The SPE shall issue AGAR Advisories to establish and maintain a numbering system for USDA contracts, modifications, and delivery/task orders. USDA contracting offices shall number contracts, modifications, and orders in accordance with this numbering system.</P>
              <CITA>[70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 404.11—Central Contractor Registration</HD>
            <SECTION>
              <SECTNO>404.1103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) Contracting officers and other USDA employees shall not enter information into the Central Contractor Registration (CCR) database on behalf of prospective contractors. Prospective contractors who are unable to register on-line at the CCR Web site should be advised to submit a written application to CCR for registration into the CCR database. USDA employees may assist prospective contractors by downloading the registration template, CCR handbook, and other information from the CCR Web site and providing copies of that material to requesters. Written applications for registration may be submitted to Department of Defense Central Contractor Registration, 74 Washington Ave., Suite 7, Battle Creek, MI 49017-3084.</P>

              <P>(b) Verification that the prospective contractor is registered in the CCR database shall be done via the CCR Internet Web site <E T="03">http://www.ccr.gov.</E> This verification process using the CCR Web site applies both to acquisitions executed using USDA legacy procurement systems and the USDA Integrated Acquisition System.</P>
              <P>(c) AGAR Advisories issued by the Office of Procurement and Property Management will address internal procedures for integration of contractor information in the CCR database with the USDA FFIS payment system.</P>
              <CITA>[70 FR 44, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 404.70—Precontract Notices</HD>
            <SECTION>
              <SECTNO>404.7001</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
              <P>The contracting officer shall insert the provision at 452.204-70, Inquiries, in all solicitations.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="104"/>
        <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 405</EAR>
          <HD SOURCE="HED">PART 405—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 405.3—Synopses of Contract Awards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>405.303</SECTNO>
              <SUBJECT>Announcement of contract awards.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 405.4—Release of Information</HD>
              <SECTNO>405.403</SECTNO>
              <SUBJECT>Requests from Members of Congress.</SUBJECT>
              <SECTNO>405.404</SECTNO>
              <SUBJECT>Release of long-range acquisition estimates.</SUBJECT>
              <SECTNO>405.404-1</SECTNO>
              <SUBJECT>Release procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 405.5—Paid Advertisements</HD>
              <SECTNO>405.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 405.3—Synopses of Contract Awards</HD>
            <SECTION>
              <SECTNO>405.303</SECTNO>
              <SUBJECT>Announcement of contract awards.</SUBJECT>
              <P>Contracting officers shall make information available on any contract award with an estimated total value over $1 million (including options) to their agency congressional liaison office in sufficient time for the agency to announce it by 5:00 p.m. Washington, DC time on the day of award. The agency congressional liaison office shall, concurrent with the public announcement, provide the award announcement information to the USDA Congressional Relations Office.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 405.4—Release of Information</HD>
            <SECTION>
              <SECTNO>405.403</SECTNO>
              <SUBJECT>Requests from Members of Congress.</SUBJECT>
              <P>The head of the contracting activity (HCA) is the agency head designee pursuant to FAR 5.403.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>405.404</SECTNO>
              <SUBJECT>Release of long-range acquisition estimates.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>405.404-1</SECTNO>
              <SUBJECT>Release procedures.</SUBJECT>
              <P>(a) HCA's shall establish written procedures to control the release of long-range acquisition estimates, as authorized under FAR 5.404-1.</P>
              <P>(b) Classified information shall not be released without the approval of the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management. Departmental Manuals and Regulations (3400 series) contain guidance on classified information.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 405.5—Paid Advertisements</HD>
            <SECTION>
              <SECTNO>405.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>(a) The authority vested in the agency head to authorize publication of paid advertisements in newspapers (44 U.S.C. 3702) is delegated, with power of redelegation, to HCA's. HCA redelegation of this authority shall be in writing.</P>
              <P>(b) Policies and procedures regarding prior authorization required for media other than newspapers are contained in USDA Departmental Regulations 1400 series.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 406</EAR>
          <HD SOURCE="HED">PART 406—COMPETITION REQUIREMENTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 406.2—Full and Open Competition After Exclusion of Sources</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>406.202</SECTNO>
              <SUBJECT>Establishing or maintaining alternative sources.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 406.3—Other Than Full and Open Competition</HD>
              <SECTNO>406.302</SECTNO>
              <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT>
              <SECTNO>406.302-70</SECTNO>
              <SUBJECT>Otherwise authorized by law.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 406.5—Competition Advocates</HD>
              <SECTNO>406.501</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <PRTPAGE P="105"/>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 406.2—Full and Open Competition After Exclusion of Sources</HD>
            <SECTION>
              <SECTNO>406.202</SECTNO>
              <SUBJECT>Establishing or maintaining alternative sources.</SUBJECT>
              <P>The Senior Procurement Executive is authorized to make determinations pursuant to FAR 6.202(a) and sign the determination and findings required by FAR 6.202(b).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 406.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>406.302</SECTNO>
              <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>406.302-70</SECTNO>
              <SUBJECT>Otherwise authorized by law.</SUBJECT>
              <P>(a) <E T="03">Authority.</E> Section 1472 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) authorizes the Secretary of Agriculture to award contracts, without competition, to further research, extension, or teaching programs in the food and agricultural sciences.</P>
              <P>(b) <E T="03">Limitations.</E> The use of this authority is limited to those instances where it can be determined that contracting without full and open competition is in the best interest of the Government and necessary to the accomplishment of the research, extension, or teaching program. Therefore:</P>
              <P>(1) Contracts under the authority of the Act shall be awarded on a competitive basis to the maximum practicable extent.</P>
              <P>(2) When full and open competition is not deemed appropriate, the contracting officer shall make a written justification on a case-by-case basis in accordance with procedures in FAR 6.303 and 6.304.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 406.5—Competition Advocates</HD>
            <SECTION>
              <SECTNO>406.501</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <P>(a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been designated as the Competition Advocate for USDA.</P>
              <P>(b) Each HCA shall designate a competition advocate for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Competition Advocate for USDA.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 407</EAR>
          <HD SOURCE="HED">PART 407—ACQUISITION PLANNING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 407.1—Acquisition Plans</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>407.103</SECTNO>
              <SUBJECT>Agency-head responsibilities.</SUBJECT>
              <SECTNO>407.170</SECTNO>
              <SUBJECT>Advance acquisition plans.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 407.3 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 407.5—Inherently Governmental Functions</HD>
              <SECTNO>407.503</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 407.1—Acquisition Plans</HD>
            <SECTION>
              <SECTNO>407.103</SECTNO>
              <SUBJECT>Agency-head responsibilities.</SUBJECT>
              <P>Heads of Contracting Activities (HCA's) shall develop procedures to comply with FAR 7.103.</P>
            </SECTION>
            <SECTION>
              <SECTNO>407.170</SECTNO>
              <SUBJECT>Advance acquisition plans.</SUBJECT>
              <P>Each HCA shall maintain an advance acquisition planning system.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 407.3 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 407.5—Inherently Governmental Functions</HD>
            <SECTION>
              <SECTNO>407.503</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) HCA's shall establish procedures to ensure that requesting activities <PRTPAGE P="106"/>provide the written determination required by FAR 7.503(e), when submitting requests for procurement of services.</P>
              <P>(b) In the event of a disagreement as to whether the functions to be performed are inherently governmental, the HCA may refer the matter to the Senior Procurement Executive (SPE) for resolution. When submitting disagreements to the SPE for resolution the HCA shall provide a summary of the areas of disagreement, supported by the following:</P>
              <P>(1) The HCA's assessment of whether the services are “inherently governmental”;</P>
              <P>(2) The basis for that assessment (include references to the definition and policy in FAR subpart 7.5 and/or Office of Federal Procurement Policy letter 92-1);</P>
              <P>(3) A copy of the statement of work; and,</P>
              <P>(4) The requesting activity's written determination in accordance with FAR 7.503(e).</P>
              <P>(c) Such disagreements shall be resolved prior to issuance of the solicitation.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 408</EAR>
          <HD SOURCE="HED">PART 408—REQUIRED SOURCES OF SUPPLIES AND SERVICES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 408.4—Federal Supply Schedules</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>408.404</SECTNO>
              <SUBJECT>Using schedules.</SUBJECT>
              <SECTNO>408.404-3</SECTNO>
              <SUBJECT>Requests for waivers.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 408.7—Acquisition From Nonprofit Agencies Employing People Who Are Blind or Severely Disabled</HD>
              <SECTNO>408.701</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>408.705</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>408.705-2</SECTNO>
              <SUBJECT>Direct order process.</SUBJECT>
              <SECTNO>408.705-3</SECTNO>
              <SUBJECT>Allocation process.</SUBJECT>
              <SECTNO>408.705-4</SECTNO>
              <SUBJECT>Compliance with orders.</SUBJECT>
              <SECTNO>408.706</SECTNO>
              <SUBJECT>Purchase exemptions.</SUBJECT>
              <SECTNO>408.707</SECTNO>
              <SUBJECT>Prices.</SUBJECT>
              <SECTNO>408.711</SECTNO>
              <SUBJECT>Quality complaints.</SUBJECT>
              <SECTNO>408.712</SECTNO>
              <SUBJECT>Specification changes.</SUBJECT>
              <SECTNO>408.714</SECTNO>
              <SUBJECT>Communications with the central nonprofit agencies and the Committee.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 408.8—Acquisition of Printing and Related Supplies</HD>
              <SECTNO>408.802</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 408.11—Leasing of Motor Vehicles</HD>
              <SECTNO>408.1103</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 408.4—Federal Supply Schedules</HD>
            <SECTION>
              <SECTNO>408.404</SECTNO>
              <SUBJECT>Using schedules.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>408.404-3</SECTNO>
              <SUBJECT>Requests for waivers.</SUBJECT>
              <P>A copy of the request for a waiver and the approval shall be placed in the contract file to support the acquisition of items off schedule.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 408.7—Acquisition From Nonprofit Agencies Employing People Who Are Blind or Severely Disabled</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
            </SOURCE>
            <EDNOTE>
              <HD SOURCE="HED">Editorial Note:</HD>
              <P>Nomenclature changes to subpart 408.7 appear at 70 FR 45, Jan. 3, 2005.</P>
            </EDNOTE>
            <SECTION>
              <SECTNO>408.701</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Committee Member</E> is the Presidential appointee representing USDA as a member of the Committee for Purchase from People Who Are Blind or Severely Disabled.</P>
              <P>
                <E T="03">Organization head</E> is the Under Secretary or Assistant Secretary of a mission area or the head of a USDA staff office.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>408.705</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) The organization head shall appoint one person as Javits-Wagner-O'Day Act (JWOD) Liaison to represent the organization and to coordinate the organization's actions with the Committee Member.</P>
              <P>(b) JWOD advocates may represent more than one organization. Liaisons need not be acquisition officials.</P>
              <P>(c) The organization head shall issue and maintain a performance plan to promote and enhance the organization's acquisitions from JWOD participating nonprofit agencies.</P>
              <P>(d) The performance plan shall:<PRTPAGE P="107"/>
              </P>
              <P>(1) Announce the organization's support for the JWOD Act;</P>
              <P>(2) Establish a promotion program for the products and services provided by the JWOD participating nonprofit agencies;</P>
              <P>(3) Provide for the JWOD Liaison's role in acquisition planning;</P>
              <P>(4) Establish measurable program goals for growth or other accomplishment in the organization's JWOD program actions; and</P>
              <P>(5) Establish an awards program for successful participation in the JWOD program.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>408.705-2</SECTNO>
              <SUBJECT>Direct order process.</SUBJECT>
              <P>(a) The chief of a contracting office may apply to a central nonprofit agency for authorization to order specific supplies or services directly from a JWOD participating nonprofit agency.</P>
              <P>(b) A copy of the application should be provided to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.705-3</SECTNO>
              <SUBJECT>Allocation process.</SUBJECT>
              <P>(a) The chief of a contracting office may apply to a central nonprofit agency for a production allocation of specific supplies or services to a JWOD participating nonprofit agency.</P>
              <P>(b) A copy of the application should be provided to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.705-4</SECTNO>
              <SUBJECT>Compliance with orders.</SUBJECT>
              <P>Prior to attempting to resolve a failure to perform by a participating nonprofit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.706</SECTNO>
              <SUBJECT>Purchase exemptions.</SUBJECT>
              <P>Prior to applying to the Committee for a purchase exemption, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.707</SECTNO>
              <SUBJECT>Prices.</SUBJECT>
              <P>Prior to applying for a price revision, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.711</SECTNO>
              <SUBJECT>Quality complaints.</SUBJECT>
              <P>Prior to attempting to resolve a complaint regarding the quality of goods or services provided by participating nonprofit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.712</SECTNO>
              <SUBJECT>Specification changes.</SUBJECT>
              <P>Prior to providing 90-days advance notification to the Committee on actions that affect supplies and services on the Procurement List, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.</P>
            </SECTION>
            <SECTION>
              <SECTNO>408.714</SECTNO>
              <SUBJECT>Communications with the central nonprofit agencies and the Committee.</SUBJECT>
              <P>Any matter requiring referral to the Committee shall be provided to the JWOD Liaison who will coordinate the matter with the Committee Member.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 408.8—Acquisition of Printing and Related Supplies</HD>
            <SECTION>
              <SECTNO>408.802</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) The Director, Office of Communications (OC) has been designated as the central printing authority in USDA, with the authority to represent the USDA before the Joint Committee on Printing (JCP), the Government Printing Office, and other Federal and State agencies on all matters related to printing.</P>
              <P>(b) Prior to contracting for any of the items defined in FAR 8.801, the contracting officer shall verify that the requisite approval has been received by the publication liaison officer or requisitioner.</P>
              <P>(c) The approval from OC or the approval authority designated by OC shall be maintained in the contract file.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="108"/>
            <HD SOURCE="HED">Subpart 408.11—Leasing of Motor Vehicles</HD>
            <SECTION>
              <SECTNO>408.1103</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
              <P>If the requirement includes the need for the vendor to provide operational maintenance such as fueling, lubrication, or other fluid changes or replenishment, the contracting officer shall include in the contract:</P>
              <P>(1) A requirement for the use of fluids and lubricants containing the maximum available amounts of recovered materials, and alternative fuels whenever available; and</P>
              <P>(2) A preference for retreaded tires meeting the Federal retread specifications, tires with the maximum recovered material content, or retreading services for the tires on the vehicle.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 409</EAR>
          <HD SOURCE="HED">PART 409—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 409.4—Debarment, Suspension and Ineligibility</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>409.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>409.404</SECTNO>
              <SUBJECT>List of parties excluded from Federal procurement and nonprocurement programs.</SUBJECT>
              <SECTNO>409.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <SECTNO>409.405-1</SECTNO>
              <SUBJECT>Continuation of current contracts.</SUBJECT>
              <SECTNO>409.405-2</SECTNO>
              <SUBJECT>Restrictions on subcontracting.</SUBJECT>
              <SECTNO>409.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>409.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>409.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <SECTNO>409.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>409.470</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 409.5—Organizational and Consultant Conflicts of Interest</HD>
              <SECTNO>409.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 409.4—Debarment, Suspension and Ineligibility</HD>
            <SECTION>
              <SECTNO>409.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Debarring official.</E> Pursuant to the Secretary's delegations of authority in 7 CFR 2.24, the Senior Procurement Executive (SPE) is designated as the debarring official (Department Debarring Officer) with the following exceptions:</P>
              <P>(a) For commodity contracts awarded on behalf of the Commodity Credit Corporation (CCC), the Executive Vice President, CCC, or his designee is designated as the debarring official pursuant to 7 CFR part 1407.</P>
              <P>(b) For contracts awarded under the School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department Debarring Officer has delegated debarring authority to the Agricultural Marketing Service (AMS).</P>
              <CITA>[63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>409.404</SECTNO>
              <SUBJECT>List of parties excluded from Federal procurement and nonprocurement programs.</SUBJECT>
              <P>The Department Debarring Officer is USDA's single point of contact with GSA for debarment and suspension actions taken under this subpart. The debarring official for AMS shall notify the Department Debarring Officer of each debarment and suspension action by promptly submitting a copy of the debarment or suspension notice and any later changes to the debarment or suspension status. The Department Debarring Officer will forward a copy of each notice to GSA for inclusion in the Government-wide list.</P>
            </SECTION>
            <SECTION>
              <SECTNO>409.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <P>Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harm the agency's programs and prevent accomplishment of mission requirements. The SPE is authorized to make the determinations under FAR 9.405. Requests for such determinations shall be submitted through the head of the contracting activity (HCA) to the SPE.</P>
            </SECTION>
            <SECTION>
              <SECTNO>409.405-1</SECTNO>
              <SUBJECT>Continuation of current contracts.</SUBJECT>
              <P>The HCA is authorized to make the determinations under FAR 9.405-1.</P>
            </SECTION>
            <SECTION>
              <SECTNO>409.405-2</SECTNO>
              <SUBJECT>Restrictions on subcontracting.</SUBJECT>
              <P>The HCA is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="109"/>
              <SECTNO>409.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>409.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for debarment, the case shall be immediately referred through the HCA to the debarring official. The case must be accompanied by a complete statement of the facts (including a copy of any criminal indictments, if applicable) along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring to the debarring official.</P>
              <P>(b) <E T="03">Decision-making process.</E> If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines debarment is justified, the debarring official shall initiate the proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA of the action taken.</P>
              <P>(c) <E T="03">Fact-finding proceeding.</E> For actions listed under FAR 9.406-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing. The hearing should be held at a location and time that is convenient to the parties concerned, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized representative. Witnesses may be called by either party. The proceedings shall be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment. The contractor shall be provided a copy of a transcript of the proceedings under the conditions established in FAR 9.406-3(b)(2)(ii).</P>
            </SECTION>
            <SECTION>
              <SECTNO>409.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>409.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for suspension, the case shall be immediately referred through the HCA to the debarring official. The case must be accompanied by a complete statement of the facts along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring it to the debarring official.</P>
              <P>(b) <E T="03">Decision-making process.</E> If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines suspension is justified, the debarring official shall initiate the proposed suspension in accordance with FAR 9.407-3(c) and notify the HCA of the action taken.</P>
              <P>(c) <E T="03">Fact-finding proceedings.</E> For actions listed under FAR 9.407-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing, similar in nature to the hearing for debarments as discussed in 409.406-3(c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>409.470</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <P>A debarred or suspended contractor may appeal the debarring official's decision by mailing or otherwise furnishing a written notice within 90 days from the date of the decision to the U.S. Department of Agriculture Board of Contract Appeals, Washington, DC 20250. A copy of the notice of appeal shall be furnished to the debarring officer from whose decision the appeal is taken. Appeals under subpart 409.4 shall be governed by the rules and procedures of the U.S. Department of Agriculture Board of Contract Appeals set forth in 7 CFR part 24.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="110"/>
            <HD SOURCE="HED">Subpart 409.5—Organizational and Consultant Conflicts of Interest</HD>
            <SECTION>
              <SECTNO>409.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>(a) The HCA, on a non-delegable basis, is authorized to waive any general rule or procedure in FAR 9.5 when in the Government's interest.</P>
              <P>(b) Each request for waiver shall include:</P>
              <P>(1) The general rule or procedure proposed to be waived;</P>
              <P>(2) An analysis of the potential conflict, including the benefits and detriments to the Government and prospective contractors;</P>
              <P>(3) A discussion of why the conflict cannot be avoided, neutralized, or mitigated; and</P>
              <P>(4) Advice of counsel obtained under FAR 9.504(b).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 410</EAR>
          <HD SOURCE="HED">PART 410—MARKET RESEARCH</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>410.001</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SECTNO>410.002</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c)</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>70 FR 45, Jan. 3, 2005, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>410.001</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>In addition to those uses listed in FAR 10.001, agencies must use the results of market research to—</P>
            <P>(a) Ensure the minimum use of hazardous or toxic materials;</P>
            <P>(b) Ensure the maximum use of biobased products and biofuels; and</P>
            <P>(c) Identify products and services on or eligible for addition to the Javits-Wagner-O'Day Act Procurement List in order to achieve USDA's goal to increase participation in this program.</P>
          </SECTION>
          <SECTION>
            <SECTNO>410.002</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>
            <P>Market research must include obtaining information on the commercial quality assurance practices as an alternative for Government inspection and testing prior to tender for acceptance.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 411</EAR>
          <HD SOURCE="HED">PART 411—DESCRIBING AGENCY NEEDS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 411.1—Selecting and Developing Requirements Documents</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>411.101</SECTNO>
              <SUBJECT>Order of precedence for requirements documents.</SUBJECT>
              <SECTNO>411.103</SECTNO>
              <SUBJECT>Market acceptance.</SUBJECT>
              <SECTNO>411.106</SECTNO>
              <SUBJECT>Purchase descriptions for service contracts.</SUBJECT>
              <SECTNO>411.170</SECTNO>
              <SUBJECT>Brand name or equal.</SUBJECT>
              <SECTNO>411.171</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 411.2—Using and Maintaining Requirements Documents</HD>
              <SECTNO>411.202</SECTNO>
              <SUBJECT>Maintenance of standardization documents.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 411.4—Delivery or Performance Schedules</HD>
              <SECTNO>411.404</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 411.6—Priorities and Allocations</HD>
              <SECTNO>411.600</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 411.1—Selecting and Developing Requirements Documents</HD>
            <SECTION>
              <SECTNO>411.101</SECTNO>
              <SUBJECT>Order of precedence for requirements documents.</SUBJECT>
              <P>(a) Office of Management and Budget (OMB) Circular A-119 establishes a Federal policy requiring the use of voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical.</P>
              <P>(b) The HCA is authorized to submit the determination required by OMB Circular A-119 that a voluntary standard is inconsistent with law or otherwise impracticable. The HCA must submit the determination to OMB through the National Institute of Standards and Technology in accordance with the Circular with a copy provided to the SPE.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="111"/>
              <SECTNO>411.103</SECTNO>
              <SUBJECT>Market acceptance.</SUBJECT>
              <P>(a) The head of the contracting activity (HCA) may determine that offerors must demonstrate, in accordance with FAR 11.103(a), the market acceptability of their items to be offered.</P>
              <P>(b) The contracting officer shall place a copy of this determination, signed by the HCA, in the solicitation file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>411.106</SECTNO>
              <SUBJECT>Purchase descriptions for service contracts.</SUBJECT>
              <P>When contract personnel are to be used, the requiring official shall record on the requisition his or her determination whether harm to the Government might occur should contractor personnel fail to identify themselves as non-Government officials.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>411.170</SECTNO>
              <SUBJECT>Brand name or equal.</SUBJECT>
              <P>(a) A “brand name or equal” purchase description shall include the following type of information:</P>
              <P>(1) Identification of the item by generic description.</P>
              <P>(2) Make, model number, catalog designation, or other description, and identification of a commercial catalog where it is listed.</P>
              <P>(3) Name of manufacturer, producer, or distributor of the item and complete address.</P>
              <P>(4) All salient characteristics of the “brand name or equal” product or products which have been determined by the requisitioner to be essential to the Government's minimum requirements.</P>
              <P>(b) [Reserved]</P>
            </SECTION>
            <SECTION>
              <SECTNO>411.171</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) Contracting officers shall insert the provision at 452.211-70, Brand Name or Equal, in solicitations, other than those for construction, where “brand name or equal” purchase descriptions are used.</P>
              <P>(b) Contracting officers shall insert the clause at 452.211-71, Equal Products Offered, in solicitations, other than those for construction, where the provision at 452.211-70 is included.</P>
              <P>(c) Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.</P>
              <P>(d) Contracting officers shall insert the clause at 452.211-73, Attachment to Statement of Work/Specifications, when there are attachments to the description (statement of work) or specifications.</P>
              <CITA>[63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 411.2—Using and Maintaining Requirements Documents</HD>
            <SECTION>
              <SECTNO>411.202</SECTNO>
              <SUBJECT>Maintenance of standardization documents.</SUBJECT>
              <P>Recommendations for changes to standardization documents are to be submitted through the Senior Procurement Executive, who will coordinate the submission of these recommendations to the cognizant preparing activity.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 411.4—Delivery or Performance Schedules</HD>
            <SECTION>
              <SECTNO>411.404</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) The contracting officer shall insert the clause at 452.211-74, Period of Performance, when it is necessary to specify a period of performance, beginning on the date of award, date of receipt of notice of award, or a specified date.</P>
              <P>(b) The contracting officer shall insert the clause at 452.211-75, Effective Period of the Contract, when it is necessary to specify the effective period of the contract.</P>
              <CITA>[63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 411.6—Priorities and Allocations</HD>
            <SECTION>
              <SECTNO>411.600</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>The Defense Priorities and Allocation System (DPAS) excludes USDA activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not authorized to place rated orders under DPAS.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="112"/>
          <EAR>Pt. 412</EAR>
          <HD SOURCE="HED">PART 412—ACQUISITION OF COMMERCIAL ITEMS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 412.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD>
            <SECTION>
              <SECTNO>412.302</SECTNO>
              <SUBJECT>Tailoring of provisions and clauses for the acquisition of commercial items.</SUBJECT>
              <P>The head of the contracting activity is authorized to approve waivers in accordance with FAR 12.302(c). The approved waiver may be either for an individual contract or for a class of contracts for the specific item. The approved waiver and supporting documentation shall be incorporated into the contract file.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="113"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 413</EAR>
          <HD SOURCE="HED">PART 413—SIMPLIFIED ACQUISITION PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 413.3—Simplified Acquisition Methods</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>413.301</SECTNO>
              <SUBJECT>Governmentwide commercial purchase card.</SUBJECT>
              <SECTNO>413.306</SECTNO>
              <SUBJECT>SF 44, Purchase Order-Invoice-Voucher.</SUBJECT>
              <SECTNO>413.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 45895, Aug. 23, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 413.3—Simplified Acquisition Methods</HD>
            <SECTION>
              <SECTNO>413.301</SECTNO>
              <SUBJECT>Governmentwide commercial purchase card.</SUBJECT>
              <P>USDA policy and procedures on use of the Governmentwide commercial purchase card are established in Departmental Regulation Series 5000.</P>
            </SECTION>
            <SECTION>
              <SECTNO>413.306</SECTNO>
              <SUBJECT>SF 44, Purchase Order-Invoice-Voucher.</SUBJECT>
              <P>The Standard Form 44 (and the previously prescribed USDA Form AD-744) is not authorized for use within USDA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>413.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
              <P>Form AD-838, Purchase Order, is prescribed for use by USDA in lieu of Optional Forms (OFs) 347 and 348 except that use of the OF 347 and OF 348 is authorized when utilizing the USDA Integrated Acquisition System.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 414</EAR>
          <HD SOURCE="HED">PART 414—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 414.2—Solicitation of Bids</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>414.201</SECTNO>
              <SUBJECT>Preparation of invitations for bids.</SUBJECT>
              <SECTNO>414.201-6</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 414.4—Opening of Bids and Award of Contract</HD>
              <SECTNO>414.404</SECTNO>
              <SUBJECT>Rejection of bids.</SUBJECT>
              <SECTNO>414.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <SECTNO>414.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
              <SECTNO>414.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <SECTNO>414.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
              <SECTNO>414.409</SECTNO>
              <SUBJECT>Information to bidders.</SUBJECT>
              <SECTNO>414.409-2</SECTNO>
              <SUBJECT>Award of classified contracts.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 414.2—Solicitation of Bids</HD>
            <SECTION>
              <SECTNO>414.201</SECTNO>
              <SUBJECT>Preparation of invitations for bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>414.201-6</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
              <P>The contracting officer shall insert the provision 452.214-70, Award by Lot, when multiple items are segregated into clearly identifiable lots and the contracting officer wants to reserve the right to award by item within a lot, if award in that manner would be advantageous to the Government.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 414.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>414.404</SECTNO>
              <SUBJECT>Rejection of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>414.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <P>An acquisition official at a level above the contracting officer is authorized to make the determinations under FAR 14.404-1(c) and (e)(1).</P>
            </SECTION>
            <SECTION>
              <SECTNO>414.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>414.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>The authority to make the determinations under FAR 14.407-3(a), (b), and (d) is delegated, without power of redelegation, to the head of the contracting activity. The authority to make the determination under FAR 14.407-3(c) is delegated to the contracting officer. Each determination pursuant to FAR 14.407-3 shall have the concurrence of the Office of the General Counsel (OGC).</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="114"/>
              <SECTNO>414.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
              <P>If a mistake in bid is disclosed after award, the contracting officer shall make a final determination in accordance with the provisions of FAR 14.407-4 (b) and (c) and shall coordinate each proposed determination with OGC. Such coordination shall, at a minimum, consist of the contracting officer providing the proposed determination and the case file to OGC for comment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>414.409</SECTNO>
              <SUBJECT>Information to bidders.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>414.409-2</SECTNO>
              <SUBJECT>Award of classified contracts.</SUBJECT>
              <P>Disposition of classified information shall be in accordance with Departmental Regulation and Manual (3400 Series) and in accordance with direction issued by the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management.</P>
              <CITA>[70 FR 45, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 415</EAR>
          <HD SOURCE="HED">PART 415—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 415.2—Solicitation and Receipt of Proposals and Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>415.204</SECTNO>
              <SUBJECT>Contract format.</SUBJECT>
              <SECTNO>415.207</SECTNO>
              <SUBJECT>Handling proposals and information.</SUBJECT>
              <SECTNO>415.209</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 415.3—Source Selection</HD>
              <SECTNO>415.303</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>415.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 415.4—Contract Pricing</HD>
              <SECTNO>415.404-4</SECTNO>
              <SUBJECT>Profit.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 415.5—Preaward, Award, and Postaward Notifications, Protests and Mistakes</HD>
              <SECTNO>415.570</SECTNO>
              <SUBJECT>Post-award conference.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 415.6—Unsolicited Proposals</HD>
              <SECTNO>415.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
              <SECTNO>415.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 52674, Sept. 30, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 415.2—Solicitation and Receipt of Proposals and Information</HD>
            <SECTION>
              <SECTNO>415.204</SECTNO>
              <SUBJECT>Contract format.</SUBJECT>
              <P>The Senior Procurement Executive is authorized to exempt contracts from the uniform contract format.</P>
            </SECTION>
            <SECTION>
              <SECTNO>415.207</SECTNO>
              <SUBJECT>Handling proposals and information.</SUBJECT>
              <P>(a) Throughout the source selection process, agency personnel and non-Government evaluators with access to proposal information shall disclose neither the number of offerors nor their identity except as authorized by FAR subpart 15.5. (See also FAR 5.403.)</P>
              <P>(b) The contracting officer shall obtain the following written agreement from the non-Government evaluator prior to the release of any proposal to that evaluator.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Agreement Governing the Use and Disclosure of Proposals</HD>
                <FP SOURCE="FP-DASH">RFP</FP>
                <FP SOURCE="FP-DASH">Offeror</FP>
                <P>1. To the best of my knowledge and belief, no conflict of interest exists that may diminish my capacity to perform an impartial and objective review of the offeror's proposal, or may otherwise result in a biased opinion or an unfair advantage. If a potential conflict of interest arises or if I identify such a conflict, I agree to notify the Government promptly concerning the potential conflict. In determining whether any potential conflict of interest exists, I agree to review whether my or my employer's relationships with other persons or entities, including, but not limited to, ownership of stocks, bonds, other outstanding financial interests or commitments, employment arrangements (past, present, or under consideration), and, to the extent known by me, all financial interests and employment arrangements of my spouse, minor children, and other members of my immediate household, may place me in a position of conflict, real or apparent, with the evaluation proceedings.</P>

                <P>2. I agree to use proposal information only for evaluation purposes. I understand that any authorized restriction on disclosure placed upon the proposal by the prospective contractor or subcontractor or by the Government shall be applied to any reproduction or abstracted information of the proposal. I agree to use my best effort to safeguard such information physically, and not to disclose the contents of, or release any information relating to, the proposal(s) to anyone outside of the Source Evaluation Board or other <PRTPAGE P="115"/>panel assembled for this acquisition, the Contracting Officer, or other individuals designated by the Contracting Officer.</P>
                <P>3. I agree to return to the Government all copies of proposals, as well as any abstracts, upon completion of the evaluation.</P>
                <FP SOURCE="FP-DASH"/>
                <FP>(Name and Organization)</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>(Date)</FP>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>(c) The release of a proposal to a non-Government evaluator for evaluation does not constitute the release of information for purposes of the Freedom of Information Act (5 U.S.C. 552).</P>
              <P>(d) The contracting officer shall attach a cover page bearing the following notice: GOVERNMENT NOTICE FOR HANDLING PROPOSALS—This proposal shall be used and disclosed for evaluation purposes only. Attach a copy of this Government notice to every reproduction or abstract of the proposal. Any authorized restrictive notices which the submitter places on this proposal shall be strictly complied with. Disclosure of this proposal outside the Government for evaluation purposes shall be made only to the extent authorized by, and in accordance with, FAR 3.104-4, FAR 15.207, and AGAR 415.207.</P>
              <CITA>[64 FR 52674, Sept. 30, 1999; 64 FR 54963, Oct. 8, 1999, as amended at 70 FR 46, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>415.209</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) The provision at 452.215-71, Instructions for the Preparation of Technical and Business Proposals, may be used when offerors will be required to submit technical and business proposals. Contracting officers should tailor the clause to reflect the degree of information required for the specific acquisition.</P>
              <P>(b) The contracting officer shall insert the provision at 452.215-72, Amendments to Proposals, in solicitations which require the submittal of lengthy, complex technical proposals.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 415.3—Source Selection</HD>
            <SECTION>
              <SECTNO>415.303</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>The head of the contracting activity (HCA) is authorized to appoint an individual other than the contracting officer as the source selection authority.</P>
            </SECTION>
            <SECTION>
              <SECTNO>415.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <P>HCAs are responsible for establishing procedures regarding the release of cost information to the members of the technical evaluation team.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 415.4—Contract Pricing</HD>
            <SECTION>
              <SECTNO>415.404-4</SECTNO>
              <SUBJECT>Profit.</SUBJECT>
              <P>(a)(1) USDA will use a structured approach to determine the profit or fee prenegotiation objective in acquisition actions when price negotiation is based on cost analysis.</P>
              <P>(2) The following types of acquisitions are exempt from the requirements of the structured approach, but the contracting officer shall comply with FAR 15.404-4(d) when analyzing profit for these contracts or actions:</P>
              <P>(i) Architect-engineer contracts;</P>
              <P>(ii) Construction contracts;</P>
              <P>(iii) Contracts primarily requiring delivery of material supplied by subcontractors;</P>
              <P>(iv) Termination settlements; and</P>
              <P>(v) Cost-plus-award-fee contracts;</P>

              <P>(b) Unless otherwise restricted by contracting activity procedures, the Contracting Officer may use another Federal agency's structured approach if that approach has been formalized and is maintained as part of that Agency's acquisition regulations (<E T="03">i.e.,</E> included in that Agency's assigned chapter of Title 48 of the Code of Federal Regulations).</P>
              <P>(c) The HCA is responsible for establishing procedures to ensure compliance with this subpart.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 415.5—Preaward, Award, and Postaward Notifications, Protests and Mistakes</HD>
            <SECTION>
              <SECTNO>415.570</SECTNO>
              <SUBJECT>Post-award conference.</SUBJECT>
              <P>If a postaward conference is necessary, the contracting officer shall insert clause 452.215-73, Post-Award Conference.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="116"/>
            <HD SOURCE="HED">Subpart 415.6—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>415.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
              <P>HCAs are responsible for establishing procedures to ensure compliance with the requirements of FAR 15.604.</P>
            </SECTION>
            <SECTION>
              <SECTNO>415.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <P>HCAs are responsible for establishing the procedures for control of unsolicited proposals required by FAR 15.606(a) and for identifying the contact points as required by FAR 15.606(b).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 416</EAR>
          <HD SOURCE="HED">PART 416—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>416.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 416.2—Fixed-Price Contracts</HD>
              <SECTNO>416.203</SECTNO>
              <SUBJECT>Fixed-price contracts with economic price adjustment.</SUBJECT>
              <SECTNO>416.203-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 416.4—Incentive Contracts</HD>
              <SECTNO>416.405</SECTNO>
              <SUBJECT>Cost-reimbursement incentive contracts.</SUBJECT>
              <SECTNO>416.405-2</SECTNO>
              <SUBJECT>Cost-plus-award-fee contracts.</SUBJECT>
              <SECTNO>416.406</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>416.470</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 416.5—Indefinite-Delivery Contracts</HD>
              <SECTNO>416.505</SECTNO>
              <SUBJECT>Ordering.</SUBJECT>
              <SECTNO>416.506</SECTNO>
              <SUBJECT>Solicitation provision and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 416.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
              <SECTNO>416.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
              <SECTNO>416.603-2</SECTNO>
              <SUBJECT>Application.</SUBJECT>
              <SECTNO>416.603-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>416.670</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 416.7—Agreements</HD>
              <SECTNO>416.702</SECTNO>
              <SUBJECT>Basic agreements.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>416.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>Heads of contracting activities (HCA's) are authorized to establish written procedures allowing the use of any contract type described in FAR part 16 for acquisitions made under simplified acquisition procedures in FAR part 13.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 416.2—Fixed-Price Contracts</HD>
            <SECTION>
              <SECTNO>416.203</SECTNO>
              <SUBJECT>Fixed-price contracts with economic price adjustment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>416.203-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>An economic price adjustment clause based on cost indexes of labor or material may be used under the conditions listed in FAR 16.203-4(d) after approval by the HCA and consultation with the Office of the General Counsel.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 416.4—Incentive Contracts</HD>
            <SECTION>
              <SECTNO>416.405</SECTNO>
              <SUBJECT>Cost-reimbursement incentive contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>416.405-2</SECTNO>
              <SUBJECT>Cost-plus-award-fee contracts.</SUBJECT>
              <P>The HCA may designate an acquisition official other than the contracting officer as the fee determination official (FDO) to make the final determination of the award fee. The designated official must have warranted contracting authority at the same level as the contracting officer or higher, and shall not have participated in preparing the contractor performance evaluation. If the HCA does not designate an FDO, the chief of the contracting office shall act as the FDO.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26995, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>416.406</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The contracting officer shall insert a clause substantially the same as the clause at 452.216-70, Award Fee, in solicitations and contracts which contemplate the award of cost-plus-award-fee contracts.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26995, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>416.470</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
              <P>The contracting officer shall insert the provision at 452.216-71, Base Fee and Award Fee Proposal, in solicitations which contemplate the award of a cost-plus-award-fee contract.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="117"/>
            <HD SOURCE="HED">Subpart 416.5—Indefinite-Delivery Contracts</HD>
            <SECTION>
              <SECTNO>416.505</SECTNO>
              <SUBJECT>Ordering.</SUBJECT>
              <P>(a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been designated as the Departmental Task Order Ombudsman.</P>
              <P>(b) Each HCA shall designate a task order ombudsman for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Departmental Task Order Ombudsman. Contracting activity ombudsmen shall review and resolve complaints from contractors concerning task or delivery orders placed by the contracting activity.</P>
              <P>(c) Any contractor who is not satisfied with the resolution of a complaint by a contracting activity ombudsman may request the Departmental Task Order Ombudsman to review the complaint.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>416.506</SECTNO>
              <SUBJECT>Solicitation provision and contract clauses.</SUBJECT>
              <P>(a) The contracting officer shall insert a provision substantially the same as the provision at 452.216-72, Evaluation Quantities-Indefinite-Delivery Contract, in solicitations which contemplate the award of indefinite-quantity or requirements contracts to establish the basis on which offers will be evaluated.</P>
              <P>(b) The contracting officer shall insert the clause at 452.216-73, Minimum and Maximum Contract Amounts, in indefinite-delivery, indefinite-quantity contracts when the clause at FAR 52.216-18 is used.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 416.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
            <SECTION>
              <SECTNO>416.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>416.603-2</SECTNO>
              <SUBJECT>Application.</SUBJECT>
              <P>The HCA is authorized to extend the period for defining a letter contract required by FAR 16.603-2(c) in extreme cases where it is determined in writing that such action is in the best interest of the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>416.603-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.216-75, Letter Contract, in a definitive contract superseding a letter contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>416.670</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The contracting officer shall limit the Government's obligation under a time-and-materials or labor-hour contract by inserting the clause at 452.216-74, Ceiling Price.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 416.7—Agreements</HD>
            <SECTION>
              <SECTNO>416.702</SECTNO>
              <SUBJECT>Basic agreements.</SUBJECT>
              <P>Promptly after execution by the Government, the HCA shall furnish to the Senior Procurement Executive a copy of each basic agreement negotiated with contractors in accordance with FAR 16.702.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 417</EAR>
          <HD SOURCE="HED">PART 417—SPECIAL CONTRACTING METHODS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 417.2—Options</HD>
            <SECTION>
              <SECTNO>417.204</SECTNO>
              <SUBJECT>Contracts.</SUBJECT>
              <P>The head of the contracting activity is authorized to approve contracts which exceed the 5 year limitation in FAR 17.204(e).</P>
              <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 418 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="118"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 419</EAR>
          <HD SOURCE="HED">PART 419—SMALL BUSINESS PROGRAMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 419.2—Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>419.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <SECTNO>419.201-70</SECTNO>
              <SUBJECT>Office of Small and Disadvantaged Business Utilization (OSDBU).</SUBJECT>
              <SECTNO>419.201-71</SECTNO>
              <SUBJECT>Small business coordinators.</SUBJECT>
              <SECTNO>419.201-73</SECTNO>
              <SUBJECT>Reports.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 419.5—Set-Asides for Small Business</HD>
              <SECTNO>419.508</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 419.6—Certificates of Competency and Determinations of Responsibility</HD>
              <SECTNO>419.602</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>419.602-1</SECTNO>
              <SUBJECT>Referral.</SUBJECT>
              <SECTNO>419.602-3</SECTNO>
              <SUBJECT>Resolving differences between the agency and the Small Business Administration.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 419.2—Policies</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>70 FR 46, Jan. 3, 2005, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>419.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>It is the policy of USDA to provide maximum practicable contracting and subcontracting opportunities to small business (SB), small disadvantaged business (SDB), HUBZone small business, women-owned business (WOB), veteran-owned small business (VOSB), and service-disabled veteran-owned small business (SDVOSB) concerns.</P>
            </SECTION>
            <SECTION>
              <SECTNO>419.201-70</SECTNO>
              <SUBJECT>Office of Small and Disadvantaged Business Utilization (OSDBU).</SUBJECT>
              <P>The Office of Small and Disadvantaged Business Utilization (OSDBU) develops rules, policy, procedures and guidelines for the effective administration of USDA's small business program that includes all categories named under 419.201.</P>
            </SECTION>
            <SECTION>
              <SECTNO>419.201-71</SECTNO>
              <SUBJECT>Small business coordinators.</SUBJECT>
              <P>The head of the contracting activity (HCA) or a representative of the HCA shall designate in writing a small business coordinator in each contracting office. Supervisors of small business coordinators are encouraged to provide sufficient time for the coordinators to carry out their small business program duties. Coordinators' duties shall include, but not be limited to, the following:</P>
              <P>(a) Reviewing each proposed acquisition expected to exceed the simplified acquisition threshold prior to its solicitation. The coordinator shall:</P>
              <P>(1) Recommend section 8(a), HUBZone, or SDVOSB action and identify potential contractors, or</P>
              <P>(2) Identify available SDB, WOB, and VOSB to be solicited by competitive procedures. Coordinators shall document the contract file with recommendations made and actions taken.</P>
              <P>(b) Participating in goal-setting procedures and planning activities and establishing aggressive SDB, WOB, and SDVOSB goals based on the annual review of advance acquisition plans.</P>
              <P>(c) Participating in the review of those contracts which require the successful offeror to submit written plans for the utilization of small businesses as subcontractors to include all preference program areas in 419.201.</P>
              <P>(d) Ensuring that purchases exceeding $2,500 and not exceeding the simplified acquisition threshold are reserved exclusively for small businesses, including all preference program areas named in 419.201. This policy shall be implemented unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and in terms of quality and delivery of the goods or services being purchased.</P>

              <P>(e) Maintaining comprehensive source listings of small businesses.<PRTPAGE P="119"/>
              </P>
              <P>(f) Upon written request, providing small businesses (in the preference program areas named in 419.201) the bidders' mailing lists of individuals receiving solicitations which will contain the subcontracting clause entitled “Utilization of Small Business Concerns” (FAR 52.219-8). These lists may be limited to those supplies or services of major interest to the requesting firms.</P>
              <P>(g) Developing a program of contacts with local and small (to include all preference program areas named in 419.201) trade, business, and professional associations and organizations and Indian tribal councils to apprise them of USDA's program needs and recurring contract requirements.</P>
              <P>(h) Periodically meeting with program managers to discuss requirements of the small business preference program, to explore the feasibility of breaking large complex requirements into smaller lots suitable for participation by small firms, and to encourage program managers to meet with these firms so that their capabilities can be demonstrated.</P>
              <P>(i) Establishing internal operating procedures which implement the requirements of the regulations as set forth in this part 419.</P>
              <P>(j) Compiling data and preparing all reports pertaining to the small business program activities, and ensuring that these reports are accurate, complete and up-to-date.</P>
              <P>(k) Assisting and counseling small business firms.</P>
              <P>(l) Reviewing proposed large contract requirements that may be bundled to determine the potential for breaking out components suitable for purchase from small business firms.</P>
              <P>(m) Ensuring that the SBA Resident Procurement Center Representative (PCR) is provided an opportunity and reasonable time to review any solicitation that meets the dollar threshold for small business (including all preference program areas named in 419.201) subcontracting plans.</P>
            </SECTION>
            <SECTION>
              <SECTNO>419.201-73</SECTNO>
              <SUBJECT>Reports.</SUBJECT>
              <P>The Director, OSDBU, shall be responsible for submitting reports concerning USDA's progress and achievements in the procurement preference program.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 419.5—Set-Asides for Small Business</HD>
            <SECTION>
              <SECTNO>419.508</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>The contracting officer shall insert the provision at 452.219-70, Size Standard and NAICS Code Information, in solicitations that are set aside for small businesses.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 66 FR 49317, Sept. 27, 2001]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 419.6—Certificates of Competency and Determinations of Responsibility</HD>
            <SECTION>
              <SECTNO>419.602</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>419.602-1</SECTNO>
              <SUBJECT>Referral.</SUBJECT>
              <P>Contracting officers shall refer determinations of non-responsibility regarding small businesses directly to the SBA Regional Office servicing the location where the contractor's office (home) is located.</P>
            </SECTION>
            <SECTION>
              <SECTNO>419.602-3</SECTNO>
              <SUBJECT>Resolving differences between the agency and the Small Business Administration.</SUBJECT>
              <P>The HCA is authorized to appeal the issuance of a COC to SBA Headquarters as provided by FAR 19.602-3(a).</P>
              <CITA>[63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 420-421 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 422</EAR>
          <HD SOURCE="HED">PART 422—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 422.1—Basic Labor Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>422.103</SECTNO>
              <SUBJECT>Overtime.</SUBJECT>
              <SECTNO>422.103-4</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 422.3—Contract Work Hours and Safety Standards Act</HD>
              <SECTNO>422.302</SECTNO>
              <SUBJECT>Liquidated damages and overtime pay.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="120"/>
              <HD SOURCE="HED">Subpart 422.4—Labor Standards for Contracts Involving Construction</HD>
              <SECTNO>422.404</SECTNO>
              <SUBJECT>Davis-Bacon Act wage determinations.</SUBJECT>
              <SECTNO>422.404-6</SECTNO>
              <SUBJECT>Modifications of wage determinations.</SUBJECT>
              <SECTNO>422.406</SECTNO>
              <SUBJECT>Administration and enforcement.</SUBJECT>
              <SECTNO>422.406-8</SECTNO>
              <SUBJECT>Investigations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 422.6—Walsh-Healey Public Contracts Act</HD>
              <SECTNO>422.604</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
              <SECTNO>422.604-2</SECTNO>
              <SUBJECT>Regulatory exemptions.</SUBJECT>
              <SECTNO>422.608</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 422.8—Equal Employment Opportunity</HD>
              <SECTNO>422.803</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>422.804</SECTNO>
              <SUBJECT>Affirmative action programs.</SUBJECT>
              <SECTNO>422.804-2</SECTNO>
              <SUBJECT>Construction.</SUBJECT>
              <SECTNO>422.807</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 422.13—Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans</HD>
              <SECTNO>422.1303</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <SECTNO>422.1306</SECTNO>
              <SUBJECT>Complaint procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 422.14—Employment of Workers With Disabilities</HD>
              <SECTNO>422.1403</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <SECTNO>422.1406</SECTNO>
              <SUBJECT>Complaint procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.1—Basic Labor Policies</HD>
            <SECTION>
              <SECTNO>422.103</SECTNO>
              <SUBJECT>Overtime.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>422.103-4</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
              <P>Requests for the use of overtime shall be approved by an acquisition official at a level above the contracting officer in accordance with the procedures in FAR 22.103-4 (a) and (b).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.3—Contract Work Hours and Safety Standards Act</HD>
            <SECTION>
              <SECTNO>422.302</SECTNO>
              <SUBJECT>Liquidated damages and overtime pay.</SUBJECT>
              <P>Heads of contracting activities (HCA's) are authorized to review determinations of liquidated damages due under section 104(c) of the Contract Work Hours and Safety Standards Act, and to take remedial action, if appropriate, in accordance with FAR 22.302(c). Contractors or subcontractors may request review of administrative determinations of liquidated damages by written notice to the contracting officer. The contracting officer shall promptly forward appeals of liquidated damages determinations to the HCA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.4—Labor Standards for Contracts Involving Construction</HD>
            <SECTION>
              <SECTNO>422.404</SECTNO>
              <SUBJECT>Davis-Bacon Act wage determinations.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>422.404-6</SECTNO>
              <SUBJECT>Modifications of wage determinations.</SUBJECT>
              <P>HCA's are authorized to request extension of the 90 day period for award after bid opening as provided in FAR 22.404-6(b)(6).</P>
            </SECTION>
            <SECTION>
              <SECTNO>422.406</SECTNO>
              <SUBJECT>Administration and enforcement.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>422.406.8</SECTNO>
              <SUBJECT>Investigations.</SUBJECT>
              <P>Reports of violations shall be forwarded to the HCA, who shall process such reports in accordance with FAR 22.406-8(d).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.6—Walsh-Healey Public Contracts Act</HD>
            <SECTION>
              <SECTNO>422.604</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>422.604-2</SECTNO>
              <SUBJECT>Regulatory exemptions.</SUBJECT>
              <P>The Assistant Secretary for Administration can request the Secretary of Labor to exempt contracts from the Walsh-Healey Public Contracts Act pursuant to FAR 22.604-2(b). A written finding justifying the request for exemption shall be prepared for the Assistant Secretary's signature and submitted by the HCA to the Senior Procurement Executive (SPE) for referral to the Assistant Secretary.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="121"/>
              <SECTNO>422.608</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.8—Equal Employment Opportunity</HD>
            <SECTION>
              <SECTNO>422.803</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>The contracting office shall submit questions involving the applicability of Executive Order 11246 and FAR subpart 22.8 through the HCA to the SPE for resolution.</P>
            </SECTION>
            <SECTION>
              <SECTNO>422.804</SECTNO>
              <SUBJECT>Affirmative action programs.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>422.804-2</SECTNO>
              <SUBJECT>Construction.</SUBJECT>
              <P>The HCA shall ensure that each contracting office, awarding nonexempt construction contracts, maintains a current listing of covered geographical areas subject to affirmative action requirements specifying goals for minorities and women in covered construction trades.</P>
            </SECTION>
            <SECTION>
              <SECTNO>422.807</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
              <P>(a) The Assistant Secretary for Administration is authorized to make the determination in FAR 22.807(a)(1) that a contract is essential to the national security.</P>
              <P>(b) The contracting officer shall submit requests for exemptions under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE for determination by the Assistant Secretary of Administration or referral to the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor, as appropriate.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.13—Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>70 FR 46, Jan. 3, 2005, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>422.1303</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <P>(a) The Assistant Secretary for Administration is authorized to make the waiver determination in FAR 22.1305(b) that a contract is essential to the national security.</P>
              <P>(b) The contracting officer shall submit requests for exemptions under FAR 22.1305(a) and (b) through the HCA to the SPE for determination by the Assistant Secretary for Administration or referral to the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor as appropriate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>422.1306</SECTNO>
              <SUBJECT>Complaint procedures.</SUBJECT>
              <P>The contracting officer shall forward complaints received about the administration of the Vietnam Era Veterans Readjustment Assistance Act directly to the Department of Labor as prescribed in FAR 22.1308.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 422.14—Employment of Workers With Disabilities</HD>
            <SECTION>
              <SECTNO>422.1403</SECTNO>
              <SUBJECT>Waivers.</SUBJECT>
              <P>(a) The Assistant Secretary for Administration is authorized to make the waiver determinations under FAR 22.1403(a) and (b) with the concurrence of the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor.</P>
              <P>(b) The contracting officer shall submit requests for waivers through the HCA to the SPE for determination by the Assistant Secretary for Administration.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>422.1406</SECTNO>
              <SUBJECT>Complaint procedures.</SUBJECT>
              <P>The contracting officer shall forward complaints received about the administration of Section 503 of the Rehabilitation Act of 1973, as amended, directly to the OFCCP as prescribed in FAR 22.1406.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 423</EAR>
          <HD SOURCE="HED">PART 423—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE</HD>
          <CONTENTS>
            <SUBPART>
              <RESERVED>Subpart 423.1 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 423.2—Energy and Water Efficiency and Renewable Energy</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>423.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="122"/>
              <HD SOURCE="HED">Subpart 423.4—Use of Recovered Materials</HD>
              <SECTNO>423.400</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>423.402</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>423.403</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>423.404</SECTNO>
              <SUBJECT>Agency affirmative procurement programs.</SUBJECT>
              <SECTNO>423.405</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 423.5—Drug-Free Workplace</HD>
              <SECTNO>423.506</SECTNO>
              <SUBJECT>Suspension of payments, termination of contract, and debarment and suspension actions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 423.6—Notice of Radioactive Material</HD>
              <SECTNO>423.601</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 423.7—Contracting for Environmentally Preferable Products and Services</HD>
              <SECTNO>423.703</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>70 FR 47, Jan. 3, 2005, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <RESERVED>Subpart 423.1 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 423.2—Energy and Water Efficiency and Renewable Energy</HD>
            <SECTION>
              <SECTNO>423.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>Information on Energy Star, energy efficient, water efficient, and low standby products covered by this policy is available via the Internet at <E T="03">http://www.eere.energy.gov/femp/technologies/eeproducts.cfm.</E>
              </P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 423.4—Use of Recovered Materials</HD>
            <SECTION>
              <SECTNO>423.400</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart implements and supplements FAR policies and procedures for acquiring products and services when preference is given to offers of products containing recovered materials. This subpart further supplements FAR subpart 23.4 by providing guidance for affirmative procurement programs in accordance with Executive Order 13101 and 42 U.S.C. 6962.</P>
            </SECTION>
            <SECTION>
              <SECTNO>423.402</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>423.403</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>It is the policy of USDA to acquire and use Environmental Protection Agency (EPA) designated recycled content products.</P>
            </SECTION>
            <SECTION>
              <SECTNO>423.404</SECTNO>
              <SUBJECT>Agency affirmative procurement programs.</SUBJECT>
              <P>The USDA affirmative procurement program (APP) policy applicable to all USDA agencies and staff offices is hereby established. The components of this APP include:</P>
              <P>(a) <E T="03">Recovered Materials Preference Program.</E> In accord with the requirements of Section 402(c) of Executive Order 13101, Greening the Government Through Recycling, Waste Prevention, and Federal Acquisition, USDA agencies will include, in all applicable solicitations and contracts, a preference for products and services which meet or exceed the EPA purchasing guidelines as contained in the EPA product Recovered Materials Advisory Notices (RMANs). Agencies may choose an evaluation factor preference, or other method of indicating preference in accord with their agency needs. Agencies will, as appropriate, eliminate virgin material requirements in contract specifications and replace them with a statement of preference for recycled materials.</P>
              <P>(b) <E T="03">Promotion program.</E> USDA agencies will actively promote a preference for recovered materials, environmentally preferable products, and biobased products in contacts with vendors, in written materials, and other appropriate opportunities.</P>
              <P>(c) <E T="03">Reasonable estimation of recovered materials used in the performance of contracts.</E> USDA agencies annually will provide in writing to the USDA Senior Procurement Executive, in response to a call for data for the Resource Conservation and Recovery report, reasonable estimates, certification, and verification of recovered material used in the performance of contracts.</P>
              <P>(d) <E T="03">Annual review and monitoring of effectiveness of the program.</E> USDA agencies will provide an annual assessment of the effectiveness of their affirmative <PRTPAGE P="123"/>procurement program actions in increasing the purchase and use of EPA designated products.</P>
              <P>(e) <E T="03">Purchase of EPA designated products.</E> USDA agencies will require that 100% of purchases of EPA-designated products contain recovered material, unless the item cannot be acquired—</P>
              <P>(1) Competitively within a reasonable time frame;</P>
              <P>(2) Meeting appropriate performance standards; or</P>
              <P>(3) At a reasonable price.</P>
              <P>(f) The 100% purchase requirement of paragraph (e) of this section applies to all USDA agency purchases, including those at or below the micro-purchase threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>423.405</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) The threshold of purchase for EPA designated items is $10,000 per year at the USDA departmental, not individual agency, level. Therefore, the APP requirements above, including the 100% purchase requirement, apply at the individual agency and staff office level.</P>

              <P>(b) Contracting officers should refer to EPA's list of designated products and products identified as recycled content when purchasing supplies or services. Information on EPA designated products is available at: <E T="03">www.epa.gov/cpg/products.htm.</E>
              </P>
              <P>(c) All agencies and USDA Contracting Officers must take necessary actions to carry out the provisions of the USDA APP policy described in this subpart.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 423.5—Drug-Free Workplace</HD>
            <SECTION>
              <SECTNO>423.506</SECTNO>
              <SUBJECT>Suspension of payments, termination of contract, and debarment and suspension actions.</SUBJECT>
              <P>(a) The contracting officer may recommend waiver of the determination to suspend payments, to terminate a contract, or to debar or to suspend a contractor.</P>
              <P>(b) The recommendation shall be submitted through the HCA to the SPE and shall include a full description of the disruption of USDA operations should the determination not be waived.</P>
              <P>(c) The SPE will submit the request for a waiver to the Secretary with a recommendation for action.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 423.6—Notice of Radioactive Material</HD>
            <SECTION>
              <SECTNO>423.601</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <P>The HCA shall establish a system of instructions to identify the installation/facility radiation protection officer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 423.7—Contracting for Environmentally Preferable Products and Services</HD>
            <SECTION>
              <SECTNO>423.703</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) USDA's Affirmative Procurement Program promotes energy-efficiency, water conservation, and the acquisition of environmentally preferable products and services. In its acquisitions, USDA will support federal “green purchasing” principles in the acquisition of products and services that are environmentally preferable or that are biobased content products and services.</P>
              <P>(b) USDA agencies will actively promote this preference for environmentally preferable products and biobased products in contacts with vendors, in written materials, and other appropriate opportunities.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 424</EAR>
          <HD SOURCE="HED">PART 424—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 424.1—Protection of Individual Privacy</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>424.103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>424.104</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 424.2—Freedom of Information Act</HD>
              <SECTNO>424.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="124"/>
            <HD SOURCE="HED">Subpart 424.1—Protection of Individual Privacy</HD>
            <SECTION>
              <SECTNO>424.103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>USDA regulations implementing the Privacy Act are found in 7 CFR, subtitle A, part 1, subpart G. Contracting officers shall follow these regulations when responding to requests for information or awarding contracts that will involve the design, development, or operation of a system of records on individuals to accomplish agency functions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>424.104</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>When applicable, the contracting officer shall insert the clause at 452.224-70, Confidentiality of Information, in contracts involving confidential information.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 424.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>424.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>USDA regulations implementing the Freedom of Information Act are found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers shall follow these regulations when responding to requests for information.</P>
              <CITA>[70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 425</EAR>
          <HD SOURCE="HED">PART 425—FOREIGN ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 425.1—Buy American Act—Supplies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>425.102</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>425.103</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>425.104</SECTNO>
              <SUBJECT>Nonavailable articles.</SUBJECT>
              <SECTNO>425.105</SECTNO>
              <SUBJECT>Determining reasonableness of cost.</SUBJECT>
              <SECTNO>425.108</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 425.2—Buy American Act—Construction Materials</HD>
              <SECTNO>425.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>425.203-425.204</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subparts 425.3-425.4 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 425.6—Trade Sanctions</HD>
              <SECTNO>425.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 425.9 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 425.10—Additional Foreign Acquisition Regulations</HD>
              <SECTNO>425.1001</SECTNO>
              <SUBJECT>Waiver of right to examination of records.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 425.1—Buy American Act—Supplies</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>70 FR 48, Jan. 3, 2005, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>425.102</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>425.103</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>(a) The Senior Procurement Executive (SPE) shall make the determination prescribed in FAR 25.103(a).</P>
              <P>(b) Copies of determinations of nonavailability in accordance with FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies not listed in FAR 25.104, may be submitted to the SPE for submission to the Civilian Agency Acquisition Council (CAAC).</P>
            </SECTION>
            <SECTION>
              <SECTNO>425.104</SECTNO>
              <SUBJECT>Nonavailable articles.</SUBJECT>
              <P>Information required by FAR 25.104(b) shall be submitted to the SPE for submission to the CAAC.</P>
            </SECTION>
            <SECTION>
              <SECTNO>425.105</SECTNO>
              <SUBJECT>Determining reasonableness of cost.</SUBJECT>
              <P>The SPE may make the determination prescribed in FAR 25.105(a). Requests for a determination by the SPE shall be submitted by the HCA, in writing, and shall provide a detailed justification supporting why evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) should be applied to determine whether the offered price of a domestic end product is unreasonable.</P>
            </SECTION>
            <SECTION>
              <SECTNO>425.108</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 425.2—Buy American Act—Construction Materials</HD>
            <SECTION>
              <SECTNO>425.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>(a) The SPE shall make the determination prescribed in FAR 25.202(a)(1).</P>

              <P>(b) If a contracting officer proposes that the use of a particular domestic <PRTPAGE P="125"/>construction material should be waived for a contract on the grounds that its use would be impracticable, the contracting officer shall submit a proposed determination with supporting information through the HCA to the SPE for approval or disapproval.</P>
              <CITA>[63 FR 26995, May 15, 1998, as amended at 70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>425.203-425.204</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subparts 425.3-425.4 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 425.6—Trade Sanctions</HD>
            <SECTION>
              <SECTNO>425.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>The Secretary, without power of redelegation, has the authority to make the necessary determination(s) and authorize award(s) of contract(s) in accordance with FAR 25.602(b).</P>
              <CITA>[70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 425.9 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 425.10—Additional Foreign Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>425.1001</SECTNO>
              <SUBJECT>Waiver of right to examination of records.</SUBJECT>
              <P>The SPE shall make the determination under FAR 25.1001(a)(2)(iii).</P>
              <CITA>[70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 426</EAR>
          <HD SOURCE="HED">PART 426—OTHER SOCIOECONOMIC PROGRAMS</HD>
          <SUBPART>
            <RESERVED>Subpart 426.70 [Reserved]</RESERVED>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="126"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 427</EAR>
          <HD SOURCE="HED">PART 427—PATENTS, DATA, AND COPYRIGHTS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 427.1—General</HD>
            <SECTION>
              <SECTNO>427.104</SECTNO>
              <SUBJECT>General guidance.</SUBJECT>
              <P>As used in FAR part 27, the agency head or agency head designee is the Senior Procurement Executive, except under FAR 27.306(a) and (b). Under FAR 27.306(a) and (b), the agency head is the Secretary without power of redelegation.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 428</EAR>
          <HD SOURCE="HED">PART 428—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 428.1—Bonds and Other Financial Protections</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>428.101</SECTNO>
              <SUBJECT>Bid guarantees.</SUBJECT>
              <SECTNO>428.101-1</SECTNO>
              <SUBJECT>Policy on use.</SUBJECT>
              <SECTNO>428.106</SECTNO>
              <SUBJECT>Administration.</SUBJECT>
              <SECTNO>428.106-6</SECTNO>
              <SUBJECT>Furnishing information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 428.2—Sureties and Other Security for Bonds</HD>
              <SECTNO>428.203</SECTNO>
              <SUBJECT>Acceptability of individual sureties.</SUBJECT>
              <SECTNO>428.204</SECTNO>
              <SUBJECT>Alternatives in lieu of corporate or individual sureties.</SUBJECT>
              <SECTNO>428.204-2</SECTNO>
              <SUBJECT>Certified or cashier's checks, bank drafts, money orders, or currency.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 428.3—Insurance</HD>
              <SECTNO>428.307</SECTNO>
              <SUBJECT>Insurance under cost-reimbursement contracts.</SUBJECT>
              <SECTNO>428.307-1</SECTNO>
              <SUBJECT>Group insurance plans.</SUBJECT>
              <SECTNO>428.310</SECTNO>
              <SUBJECT>Contract clause for work on a Government installation.</SUBJECT>
              <SECTNO>428.370</SECTNO>
              <SUBJECT>Government-owned vehicles operated in foreign countries.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 428.1—Bonds and Other Financial Protections</HD>
            <SECTION>
              <SECTNO>428.101</SECTNO>
              <SUBJECT>Bid guarantees.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>428.101-1</SECTNO>
              <SUBJECT>Policy on use.</SUBJECT>
              <P>The Senior Procurement Executive may authorize class waivers of the requirement to obtain bid guarantees.</P>
            </SECTION>
            <SECTION>
              <SECTNO>428.106</SECTNO>
              <SUBJECT>Administration.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>428.106-6</SECTNO>
              <SUBJECT>Furnishing information.</SUBJECT>
              <P>Heads of contracting activities (HCA's) or their designees may furnish certified copies of bonds and the contracts for which they were given as provided by FAR 28.106-6(c). Requesters may be required to pay costs of certification and copying established by the Departmental Fee Schedule for records requests (7 CFR part 1, subpart A, appendix A).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 428.2—Sureties and Other Security for Bonds</HD>
            <SECTION>
              <SECTNO>428.203</SECTNO>
              <SUBJECT>Acceptability of individual sureties.</SUBJECT>
              <P>Evidence of possible criminal or fraudulent activities by an individual surety shall be reported to the Office of Inspector General in accordance with Departmental Regulations (1700 series).</P>
            </SECTION>
            <SECTION>
              <SECTNO>428.204</SECTNO>
              <SUBJECT>Alternatives in lieu of corporate or individual sureties.</SUBJECT>
              <P>HCA's shall establish procedures to ensure protection and conveyance of deposited securities of the types listed in FAR 28.204-1 through 28.204-3.</P>
            </SECTION>
            <SECTION>
              <SECTNO>428.204-2</SECTNO>
              <SUBJECT>Certified or cashier's checks, bank drafts, money orders, or currency.</SUBJECT>
              <P>The contracting officer shall insert the provision at 452.228-70, Alternative Forms of Security, in a solicitation if a bond is required.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="127"/>
            <HD SOURCE="HED">Subpart 428.3—Insurance</HD>
            <SECTION>
              <SECTNO>428.307</SECTNO>
              <SUBJECT>Insurance under cost-reimbursement contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>428.307-1</SECTNO>
              <SUBJECT>Group insurance plans.</SUBJECT>
              <P>Under cost-reimbursement contracts, before buying insurance under a group insurance plan, the contractor shall submit the plan to the contracting officer for review. During review, the contracting officer shall use all sources of information available, such as audits, industry practice, or other sources of information, to determine whether acceptance of the plan submitted would be in the Government's best interest.</P>
            </SECTION>
            <SECTION>
              <SECTNO>428.310</SECTNO>
              <SUBJECT>Contract clause for work on a Government installation.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.228-71, Insurance Coverage, in solicitations and contracts which include the clause at FAR 52.228-5, Insurance—Work on a Government Installation. If property liability insurance is required, the contracting officer shall use the clause with its Alternate I.</P>
            </SECTION>
            <SECTION>
              <SECTNO>428.370</SECTNO>
              <SUBJECT>Government-owned vehicles operated in foreign countries.</SUBJECT>
              <P>USDA is authorized to obtain insurance to cover liability incurred by any of its employees while acting within the scope of their employment and operating a Government-owned vehicle in a foreign country. (7 U.S.C. 2262).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 429 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 430</EAR>
          <HD SOURCE="HED">PART 430—COST ACCOUNTING STANDARDS ADMINISTRATION</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>430.070</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 430.2—CAS Program Requirements</HD>
              <SECTNO>430.201</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
              <SECTNO>430.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <SECTNO>430.202</SECTNO>
              <SUBJECT>Disclosure requirements.</SUBJECT>
              <SECTNO>430.202-2</SECTNO>
              <SUBJECT>Impracticality of submission.</SUBJECT>
              <SECTNO>430.202-8</SECTNO>
              <SUBJECT>Subcontractor Disclosure Statements.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>430.070</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>
              <E T="03">ACO,</E> as used in this part and in FAR part 30, means <E T="03">administrative contracting officer</E> as described in FAR part 42.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 430.2—CAS Program Requirements</HD>
            <SECTION>
              <SECTNO>430.201</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>430.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>The Senior Procurement Executive (SPE), without the authority to further redelegate, is authorized to request the Cost Accounting Standards Board to waive the application of the Cost Accounting Standards (CAS). Contracting officers shall prepare waiver requests in accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition), subsection 9903.201-5, and submit them to the SPE through the head of the contracting activity (HCA).</P>
            </SECTION>
            <SECTION>
              <SECTNO>430.202</SECTNO>
              <SUBJECT>Disclosure requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>430.202-2</SECTNO>
              <SUBJECT>Impracticality of submission.</SUBJECT>
              <P>(a) The Secretary, without the power to delegate, is authorized to determine, in accordance with FAR part 99 (Appendix B), subsection 9903.202-2, that the Disclosure Statement is impractical to secure and to authorize award without obtaining the Disclosure Statement.</P>
              <P>(b) The request for this determination is to be prepared in accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is to contain the proposed report to the CASB.</P>
              <P>(c) Requests for a determination under paragraph (a) of this section shall be prepared by the contracting officer and submitted through the HCA to the SPE for concurrence and submittal to the Secretary.</P>
            </SECTION>
            <SECTION>
              <SECTNO>430.202-8</SECTNO>
              <SUBJECT>Subcontractor Disclosure Statements.</SUBJECT>
              <P>(a) The Secretary, without the power to redelegate, is authorized to determine that the Disclosure Statement for a subcontractor is impractical to secure and to authorize award without obtaining the Disclosure Statement.</P>
              <P>(b) Requests for this determination are to be prepared and forwarded as described in 430.202-2.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="128"/>
          <EAR>Pt. 431</EAR>
          <HD SOURCE="HED">PART 431—CONTRACT COST PRINCIPLES AND PROCEDURES</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 431.1—Applicability</HD>
            <SECTION>
              <SECTNO>431.101</SECTNO>
              <SUBJECT>Objectives.</SUBJECT>
              <P>(a) The SPE is designated as the official authorized to give advance approval of an individual deviation concerning cost principles.</P>
              <P>(b) The SPE is designated as the official authorized to give advance approval of a class deviation concerning cost principles after coordination with the Civilian Agency Acquisition Council.</P>
              <P>(c) Requests for advance approval of class deviations concerning cost principles must be submitted to the SPE through the HCA.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 432</EAR>
          <HD SOURCE="HED">PART 432—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>432.001</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>432.003</SECTNO>
            <SUBJECT>Simplified acquisition procedures financing.</SUBJECT>
            <SECTNO>432.006</SECTNO>
            <SUBJECT>Reduction or suspension of contract payments upon finding of fraud.</SUBJECT>
            <SECTNO>432.006-2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>432.006-3</SECTNO>
            <SUBJECT>Responsibilities.</SUBJECT>
            <SECTNO>432.006-4</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>
            <SECTNO>432.006-5</SECTNO>
            <SUBJECT>Reporting.</SUBJECT>
            <SECTNO>432.007</SECTNO>
            <SUBJECT>Contract financing payments.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.1—Non-Commercial Item Purchase Financing</HD>
              <SECTNO>432.102</SECTNO>
              <SUBJECT>Description of contract financing methods.</SUBJECT>
              <SECTNO>432.103</SECTNO>
              <SUBJECT>Progress payments under construction contracts.</SUBJECT>
              <SECTNO>432.111</SECTNO>
              <SUBJECT>Contract clauses for non-commercial purchases.</SUBJECT>
              <SECTNO>432.113</SECTNO>
              <SUBJECT>Customary contract financing.</SUBJECT>
              <SECTNO>432.114</SECTNO>
              <SUBJECT>Unusual contract financing.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.2—Commercial Item Purchase Financing</HD>
              <SECTNO>432.202</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>432.202-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>432.202-4</SECTNO>
              <SUBJECT>Security for Government financing.</SUBJECT>
              <SECTNO>432.206</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <SECTNO>432.207</SECTNO>
              <SUBJECT>Administration and payment of commercial financing payments.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.3—Loan Guarantees for Defense Production</HD>
              <SECTNO>432.301</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.4—Advance Payments for Non-Commercial Items</HD>
              <SECTNO>432.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>432.406</SECTNO>
              <SUBJECT>Letters of credit.</SUBJECT>
              <SECTNO>432.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
              <SECTNO>432.412</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.6—Contract Debts</HD>
              <SECTNO>432.601</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>432.616</SECTNO>
              <SUBJECT>Compromise actions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.7—Contract Funding</HD>
              <SECTNO>432.703</SECTNO>
              <SUBJECT>Contract funding requirements.</SUBJECT>
              <SECTNO>432.703-3</SECTNO>
              <SUBJECT>Contracts crossing fiscal years.</SUBJECT>
              <SECTNO>432.770</SECTNO>
              <SUBJECT>USDA specific funding limitations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.8—Assignment of Claims</HD>
              <SECTNO>432.802</SECTNO>
              <SUBJECT>Conditions.</SUBJECT>
              <SECTNO>432.803</SECTNO>
              <SUBJECT>Policies.</SUBJECT>
              <SECTNO>432.805</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <SECTNO>432.806</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.9—Prompt Payment</HD>
              <SECTNO>432.904</SECTNO>
              <SUBJECT>Determining payment due dates.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 432.10—Performance-Based Payments</HD>
              <SECTNO>432.1007</SECTNO>
              <SUBJECT>Administration and payment of performance-based payments.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>432.001</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>The <E T="03">agency contract finance office</E> is the office, other than the office of the requisitioner, providing funding or performing funding record keeping for the contract action.</P>
            <P>
              <E T="03">Responsible fiscal authority</E> is that officer in the agency contract finance office with the responsibility to ensure that adequate funds are available and usable for the intended purpose.</P>
          </SECTION>
          <SECTION>
            <SECTNO>432.003</SECTNO>
            <SUBJECT>Simplified acquisition procedures financing.</SUBJECT>

            <P>(a) The chief of the contracting office may approve contract financing on a contract to be entered under the simplified acquisition procedures. Class approvals may not be made.<PRTPAGE P="129"/>
            </P>
            <P>(b) The signed approval must contain the supporting rationale for the action and an estimate of the cost and/or risk to the government.</P>
          </SECTION>
          <SECTION>
            <SECTNO>432.006</SECTNO>
            <SUBJECT>Reduction or suspension of contract payments upon finding of fraud.</SUBJECT>
          </SECTION>
          <SECTION>
            <SECTNO>432.006-2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>(a) The USDA <E T="03">remedy coordination official</E> (RCO) is the Assistant Secretary for Administration.</P>
            <P>(b) For the purposes of this part, <E T="03">head of the agency</E> means, exclusively, the Secretary or the Deputy Secretary.</P>
          </SECTION>
          <SECTION>
            <SECTNO>432.006-3</SECTNO>
            <SUBJECT>Responsibilities.</SUBJECT>
            <P>When a contracting officer suspects that a request for advance, partial, or progress payment is based on fraud, the request shall be referred directly to the Office of Inspector General (OIG) in accordance with their instructions. A copy of the referral shall be submitted through the head of the contracting activity (HCA) to the Senior Procurement Executive (SPE).</P>
          </SECTION>
          <SECTION>
            <SECTNO>432.006-4</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>
            <P>(a) Immediately upon submittal of the referral described in 432.006-3, the HCA and the contracting officer shall confer with the SPE and representatives of the OIG to discuss the potential for reduction or suspension of further payments based on the considerations listed in FAR 32.006-4(d) (1) through (5).</P>
            <P>(b) The SPE will determine whether the contractor has contracts with other Departments or contracting activities and will involve them, as necessary, in the decision making process.</P>
            <P>(c) The OIG will determine the need for and the extent of an investigation.</P>
            <P>(d) Immediately upon completion of the OIG investigation (or, if deemed necessary by the OIG and the SPE, before completion of the investigation) the SPE, in coordination with the HCA, the contracting officer, and the OIG, shall make a report on the action to the RCO.</P>
            <P>(e) Upon receipt of the report, the RCO will submit a recommendation to the Secretary.</P>
            <P>(f) Upon receipt of the RCO's report the Secretary will:</P>
            <P>(1) Notify the contractor in writing, allowing 30 calendar days after receipt of the notice, that the contractor may submit in writing information and arguments in opposition to the recommendation; and</P>
            <P>(2) Consider the RCO's recommendation, the SPE's report, the response of the contractor, and any other relevant information in order to make an appropriate final determination.</P>
            <P>(g) This determination will be provided to the contractor and to the SPE for distribution to the agencies involved and for appropriate action under the determination.</P>
            <P>(h) The determination and the supporting documentation will be placed in the contract file(s) and a copy will be maintained by the SPE.</P>
            <P>(i) The contracting officer will advise the SPE of the actual date of the reduction or suspension action.</P>
            <P>(j) Not later than 150 calendar days after the actual date of the reduction or suspension action, the SPE will prepare for the RCO a review of the agency head's determination, and will propose a recommendation from the RCO to the agency head as to whether the reduction or suspension action should continue. The RCO will submit the recommendation (including a recommendation for the time period of a follow up review) to the agency head. This recommendation will be considered by the Secretary and handled as a final action described in paragraph (f) of this section.</P>
            <P>(k) The contract may not be closed nor final payment made prior to a final determination by the Secretary.</P>
          </SECTION>
          <SECTION>
            <SECTNO>432.006-5</SECTNO>
            <SUBJECT>Reporting.</SUBJECT>
            <P>The annual report required by FAR 32.006-5 is to be prepared by the SPE and to be submitted to the Secretary within 90 calendar days after the end of the fiscal year. When signed by the Secretary, the report is to be maintained by the SPE.</P>
          </SECTION>
          <SECTION>
            <SECTNO>432.007</SECTNO>
            <SUBJECT>Contract financing payments.</SUBJECT>
            <P>The HCA may prescribe, on a case-by-case basis, a shorter period for financing payments.</P>
            <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]</CITA>
          </SECTION>
          <SUBPART>
            <PRTPAGE P="130"/>
            <HD SOURCE="HED">Subpart 432.1—Non-Commercial Item Purchase Financing</HD>
            <SECTION>
              <SECTNO>432.102</SECTNO>
              <SUBJECT>Description of contract financing methods.</SUBJECT>
              <P>Progress payments based on a percentage or stage of completion are authorized for use as a payment method under USDA contracts or subcontracts for construction, alteration or repair, and shipbuilding and conversion. Such payments also are authorized for service contracts, if the contracting officer determines that progress payments based on costs are not practicable and adequate safeguards are provided to administer progress payments based on a percentage or stage of completion. For all other contracts, progress payment provisions shall be based on costs except that the HCA may authorize progress payments based on a percentage or stage of completion on a case-by-case basis. Each authorization by the HCA shall include a determination and finding that progress payments based on costs cannot be employed practically and that there are adequate safeguards provided for the administration of progress payments based on a percentage or stage of completion.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.103</SECTNO>
              <SUBJECT>Progress payments under construction contracts.</SUBJECT>
              <P>(a) When approving a progress payment under a construction contract, the contracting officer shall indicate the amount to be paid by the payment office and include in the contract file the rationale in support of the payment.</P>
              <P>(b) When a retainage is made on a progress payment under a construction contract, the contracting officer shall place in the contract file a written determination stating the reason(s) for the retainage.</P>
              <P>(c) When a progress payment under a construction contract has been approved, the amount to be paid, the amount of any retainage withheld, and the reason(s) for the retainage shall be provided to the contractor by the contracting officer in writing before the payment due date.</P>
              <P>(d) When the contractor, under a fixed-price construction contract, furnishes evidence to the contracting officer that the surety has been paid in full for bond premiums and requests reimbursement, the first subsequent progress payment shall include the total amount attributable to such bond premiums and the Government shall pay that amount in full. This amount paid for the bond premiums is not an amount in addition to the stated contract price.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.111</SECTNO>
              <SUBJECT>Contract clauses for non-commercial purchases.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.232-70, Reimbursement for Bond Premiums—Fixed Price Construction Contracts, whenever the clause at FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is used in a contract.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>432.113</SECTNO>
              <SUBJECT>Customary contract financing.</SUBJECT>
              <P>The contracting officer may determine the necessity for customary contract financing. The determination and finding that customary contract financing is needed shall be placed in the contract file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.114</SECTNO>
              <SUBJECT>Unusual contract financing.</SUBJECT>
              <P>The HCA is authorized to approve unusual contract financing. The signed determination and finding supporting this approval shall be included in the contract file.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.2—Commercial Item Purchase Financing</HD>
            <SECTION>
              <SECTNO>432.202</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>432.202-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>In the case of unusual contract financing, the approval by the HCA shall be recorded in a determination and finding and maintained in the contract file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.202-4</SECTNO>
              <SUBJECT>Security for Government financing.</SUBJECT>
              <P>Prior to determining that an offeror's financial condition is adequate security, the contracting officer must obtain the concurrence of the funding activity in the proposed determination.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="131"/>
              <SECTNO>432.206</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>The responsibility for administration of the liquidation provisions of a contract may not be transferred from the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.207</SECTNO>
              <SUBJECT>Administration and payment of commercial financing payments.</SUBJECT>
              <P>The responsibility for receiving, reviewing, and approval of contract financing requests may not be transferred from the contracting officer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.3—Loan Guarantees for Defense Production</HD>
            <SECTION>
              <SECTNO>432.301</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>Within this subpart, the “agency” or “guaranteeing agency” is the “head of the contracting activity” (HCA) and may not be redelegated.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.4—Advance Payments for Non-Commercial Items</HD>
            <SECTION>
              <SECTNO>432.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The HCA is designated as the individual responsible for making the findings and determination, and for approval of the contract terms concerning advance payments.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.406</SECTNO>
              <SUBJECT>Letters of credit.</SUBJECT>
              <P>The HCA is designated as the individual responsible for coordination with the Department of Treasury concerning letters of credit.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
              <P>(a) The HCA is designated as the individual who may authorize, on a case by case basis, advance payments without interest for the contract types described in FAR 32.407(d)(1), (2), (3), and (4). The signed determination and findings supporting these authorizations shall be included in the contract files.</P>
              <P>(b) The SPE is designated as the individual who may authorize advance payments without interest other than those described in paragraph (a) of this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.412</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The decision to use Alternates I or III to clause 52.232-12 must be supported by a determination and finding.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.6—Contract Debts</HD>
            <SECTION>
              <SECTNO>432.601</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>
                <E T="03">Responsible official</E> means the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.616</SECTNO>
              <SUBJECT>Compromise actions.</SUBJECT>
              <P>Compromise of a debt within the proceedings under appeal to the Board of Contract Appeals is the responsibility of the contracting officer.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.7—Contract Funding</HD>
            <SECTION>
              <SECTNO>432.703</SECTNO>
              <SUBJECT>Contract funding requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>432.703-3</SECTNO>
              <SUBJECT>Contracts crossing fiscal years.</SUBJECT>
              <P>Funds appropriated to USDA may be used for one-year contracts which are to be performed in two fiscal years so long as the total amount for such contracts is obligated in the year for which the funds are appropriated (7 U.S.C. 2209c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.770</SECTNO>
              <SUBJECT>USDA specific funding limitations.</SUBJECT>

              <P>(a) The USDA is authorized to subscribe for newspapers as may be necessary to carry out its authorized work: <E T="03">Provided,</E> that such subscriptions shall not be made unless provision is made therefor in the applicable appropriation and the cost thereof is not in excess of limitations prescribed therein (7 U.S.C. 2258).</P>
              <P>(b) The expenditure of any USDA appropriation for any consulting service through any contract, pursuant to section 3109 of Title 5 of the U.S. Code shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law (7 U.S.C. 2225a).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="132"/>
            <HD SOURCE="HED">Subpart 432.8—Assignment of Claims</HD>
            <SECTION>
              <SECTNO>432.802</SECTNO>
              <SUBJECT>Conditions.</SUBJECT>
              <P>Written notices of assignment and a true copy of the assigned instrument are to be sent to the contracting officer rather than the agency head. Other copies are distributed as directed in FAR 32.802.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.803</SECTNO>
              <SUBJECT>Policies.</SUBJECT>
              <P>The HCA may make a determination of need to include a no-setoff commitment in a contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.805</SECTNO>
              <SUBJECT>Procedure.</SUBJECT>
              <P>The information described in FAR 32.805 shall be filed with the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>432.806</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The contracting officer may make the determination whether to include the clause at FAR 52.232-23 in any purchase order expected to exceed the micro-purchase threshold.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.9—Prompt Payment</HD>
            <SECTION>
              <SECTNO>432.904</SECTNO>
              <SUBJECT>Determining payment due dates.</SUBJECT>
              <P>The payment terms for supplies and services on the Procurement List and provided by a Javits-Wagner-O'Day Act participating nonprofit agency are governed by FAR 8.709.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 432.10—Performance-Based Payments</HD>
            <SECTION>
              <SECTNO>432.1007</SECTNO>
              <SUBJECT>Administration and payment of performance-based payments.</SUBJECT>
              <P>The responsibility for receiving, reviewing, and approval of performance-based payment requests may not be transferred from the contracting officer.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 433</EAR>
          <HD SOURCE="HED">PART 433—PROTESTS, DISPUTES AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 433.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>433.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>433.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <SECTNO>433.104</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 433.2—Disputes and Appeals</HD>
              <SECTNO>433.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>433.203-70</SECTNO>
              <SUBJECT>Agriculture Board of Contract Appeals.</SUBJECT>
              <SECTNO>433.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 433.1—Protests</HD>
            <SECTION>
              <SECTNO>433.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The Senior Procurement Executive (SPE) is responsible for coordinating the handling of bid protests lodged with the Government Accountability Office (GAO).</P>
              <P>(b) The head of the contracting activity (HCA), on a non-delegable basis, may resolve protests and authorize reimbursement of costs in accordance with FAR 33.102(b).</P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>433.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <P>(a) Actual or prospective bidders or offerors may file protests either with the HCA, as provided by 433.102(b), or with the contracting officer. Protesters who file protests with the HCA shall furnish a complete copy to the contracting officer no later than 1 day after the protest is filed with the HCA.</P>

              <P>(b) When a protest is received, the adjudicating official shall take prompt action towards resolution and notify the protester in writing of the action taken. The written final decision shall include a paragraph substantially as follows:
              </P>
              <EXTRACT>
                <P>This decision shall be final and conclusive unless a further written notice of protest is filed with the Government Accountability Office in accordance with 4 CFR part 21. Neither the filing of a protest with USDA nor the filing of a protest with the Government Accountability Office affects your right to file an action in a district court of the United States or the United States Court of Federal Claims.</P>
              </EXTRACT>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="133"/>
              <SECTNO>433.104</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 433.2—Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>433.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>The Assistant Secretary for Administration is authorized to determine the applicability of the Contract Disputes Act to contracts with foreign governments pursuant to FAR 33.203.</P>
            </SECTION>
            <SECTION>
              <SECTNO>433.203-70</SECTNO>
              <SUBJECT>Agriculture Board of Contract Appeals.</SUBJECT>
              <P>The organization, jurisdiction, and functions of the Agriculture Board of Contract Appeals, together with its Rules of Procedure, are set out in 7 CFR part 24.</P>
            </SECTION>
            <SECTION>
              <SECTNO>433.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
              <P>The contracting officer shall refer all matters related to suspected fraudulent claims by a contractor under the conditions in FAR 33.209 to the Office of Inspector General for additional action or investigation.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="134"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 434</EAR>
          <HD SOURCE="HED">PART 434—MAJOR SYSTEM ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 434.0—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>434.001</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>434.002</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>434.003</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>434.004</SECTNO>
              <SUBJECT>Acquisition strategy.</SUBJECT>
              <SECTNO>434.005</SECTNO>
              <SUBJECT>General requirements.</SUBJECT>
              <SECTNO>434.005-6</SECTNO>
              <SUBJECT>Full production.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>70 FR 49, Jan. 3, 2005, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 434.0—General</HD>
            <SECTION>
              <SECTNO>434.001</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>Pursuant to OMB Circular No. A-109 (A-109) and the definition at FAR 2.101, within USDA, a system shall be considered a major system if:</P>
              <P>(a) The total acquisition costs (for information technology, life cycle costs) are estimated to be $50 million or more, or</P>
              <P>(b) The system, regardless of estimated acquisition or life cycle costs, has been specifically designated to be a major system by the USDA Acquisition Executive or by the Major Information Technology Systems Executive.</P>
            </SECTION>
            <SECTION>
              <SECTNO>434.002</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>In addition to the policy guidance at FAR 34.002 and other parts of the FAR, the policies outlined in paragraph 6 of A-109 should serve as guidelines for all contracting activities in planning and developing systems, major or otherwise.</P>
            </SECTION>
            <SECTION>
              <SECTNO>434.003</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) The Secretary of Agriculture or other designated USDA key executive is responsible for making four key decisions in each major system acquisition process. These are listed in paragraph 9 of A-109 and elaborated on in paragraphs 10 through 13. The key executives of USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant Secretaries) individually or as a group will participate in this decision making process.</P>
              <P>(b) The Chief Information Officer (CIO) is the Major Information Technology Systems Executive. For acquisitions of information technology, the CIO will ensure that A-109 is implemented in USDA and that the management objectives of the Circular are realized. The CIO is responsible for designating the program manager for each major information technology system acquisition, designating an acquisition to be a major information technology system acquisition, and approving the written charter and project control system for each major information technology system acquisition.</P>
              <P>(c) The Assistant Secretary for Administration (ASA) is the USDA Acquisition Executive for major system acquisitions other than acquisitions of information technology. The ASA will ensure that A-109 is implemented in USDA and that the management objectives of the Circular are realized. The ASA is responsible for designating the program manager for each major system acquisition, designating an acquisition to be a major system acquisition, and approving the written charter and project control system for each major system acquisition.</P>
              <P>(d) Heads of contracting activities must:</P>
              <P>(1) Ensure compliance with the requirements of A-109, FAR Part 34 and AGAR Part 434.</P>
              <P>(2) Ensure that potential major system acquisitions are brought to the attention of the USDA Acquisition Executive or the Major Information Technology Systems Executive, as appropriate.</P>
              <P>(3) Recommend qualified candidates for designation as program managers for each major system acquisition within their jurisdiction.</P>
              <P>(4) Ensure that program managers fulfill their responsibilities and discharge their duties.</P>
              <P>(5) Cooperate with the ASA and Major Information.</P>

              <P>Technology Systems Executive in implementing the requirements of A-109.<PRTPAGE P="135"/>
              </P>
              <P>(e) The program manager is responsible for planning and executing the major system acquisition, ensuring appropriate coordination with the USDA Acquisition Executive and Major Information Technology Systems Executive and other key USDA executives.</P>
            </SECTION>
            <SECTION>
              <SECTNO>434.004</SECTNO>
              <SUBJECT>Acquisition strategy.</SUBJECT>
              <P>(a) The program manager will develop, in coordination with the Acquisition Executive or Major Information Technology Systems Executive, a written charter outlining the authority, responsibility, accountability, and budget for accomplishing the proposed objective.</P>
              <P>(b) The program manager will develop, subject to the approval of the Acquisition Executive or Major Information Technology Systems Executive, a project control system to schedule, monitor, and regularly report on all aspects of the project. The control system shall establish reporting periods and milestones consistent with the key decisions listed in paragraph 9 of A-109.</P>
              <P>(c) Upon initiation of the project, the program manager will report regularly to the Acquisition Executive or Major Information Technology Systems Executive.</P>

              <P>(d) Specific procedures and requirements for information technology systems are included in the USDA Information Technology Capital Planning and Investment Control Guide which can be accessed on the USDA OCIO Web site at <E T="03">http://www.ocio.usda.gov.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>434.005</SECTNO>
              <SUBJECT>General requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>434.005-6</SECTNO>
              <SUBJECT>Full production.</SUBJECT>
              <P>The Secretary or the USDA key executive designated by the Secretary for the specific program is the agency head for the purposes of FAR 34.005-6.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 435</EAR>
          <HD SOURCE="HED">PART 435—RESEARCH AND DEVELOPMENT CONTRACTING</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SECTION>
            <SECTNO>435.010</SECTNO>
            <SUBJECT>Scientific and technical reports.</SUBJECT>
            <P>Research and development contracts shall contain a provision requiring that the contractor send copies of all scientific and technical reports to the National Technical Information Service at the address indicated in FAR 35.010(b). The release of research and development contract results to other government activities and to the private sector is subject to the provisions of FAR subpart 4.4.</P>
            <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 436</EAR>
          <HD SOURCE="HED">PART 436—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 436.2—Special Aspects of Contracting for Construction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>436.201</SECTNO>
              <SUBJECT>Evaluation of contractor performance.</SUBJECT>
              <SECTNO>436.203</SECTNO>
              <SUBJECT>Government estimate of construction costs.</SUBJECT>
              <SECTNO>436.204</SECTNO>
              <SUBJECT>Disclosure of the magnitude of construction projects.</SUBJECT>
              <SECTNO>436.205</SECTNO>
              <SUBJECT>Statutory cost limitations.</SUBJECT>
              <SECTNO>436.209</SECTNO>
              <SUBJECT>Construction contracts with architect-engineer firms.</SUBJECT>
              <SECTNO>436.213</SECTNO>
              <SUBJECT>Special procedures for sealed bidding in construction contracting.</SUBJECT>
              <SECTNO>436.213-2</SECTNO>
              <SUBJECT>Presolicitation notices.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 436.3 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 436.5—Contract Clauses</HD>
              <SECTNO>436.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>436.571</SECTNO>
              <SUBJECT>Prohibition against the use of lead-based paint.</SUBJECT>
              <SECTNO>436.572</SECTNO>
              <SUBJECT>Use of premises.</SUBJECT>
              <SECTNO>436.573</SECTNO>
              <SUBJECT>Archeological or historic sites.</SUBJECT>
              <SECTNO>436.574</SECTNO>
              <SUBJECT>Control of erosion, sedimentation, and pollution.</SUBJECT>
              <SECTNO>436.575</SECTNO>
              <SUBJECT>Maximum workweek-construction schedule.</SUBJECT>
              <SECTNO>436.576</SECTNO>
              <SUBJECT>Samples and certificates.</SUBJECT>
              <SECTNO>436.577</SECTNO>
              <SUBJECT>Emergency response.</SUBJECT>
              <SECTNO>436.578</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>436.579</SECTNO>
              <SUBJECT>Opted timber sale road requirements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 436.6—Architect-Engineer Services</HD>
              <SECTNO>436.601</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>436.601-3</SECTNO>
              <SUBJECT>Applicable contracting procedures.</SUBJECT>
              <SECTNO>436.602</SECTNO>
              <SUBJECT>Selection of firms for architect-engineer contracts.</SUBJECT>
              <SECTNO>436.602-1</SECTNO>
              <SUBJECT>Selection criteria.</SUBJECT>
              <SECTNO>436.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <SECTNO>436.602-3</SECTNO>
              <SUBJECT>Evaluation board functions.</SUBJECT>
              <SECTNO>436.602-4</SECTNO>
              <SUBJECT>Selection authority.</SUBJECT>
              <SECTNO>436.602-5</SECTNO>
              <SUBJECT>Short selection process for contracts not to exceed the simplified acquisition threshold.</SUBJECT>
              <SECTNO>436.603</SECTNO>

              <SUBJECT>Collecting data on and appraising firms' qualifications.<PRTPAGE P="136"/>
              </SUBJECT>
              <SECTNO>436.604</SECTNO>
              <SUBJECT>Performance evaluation.</SUBJECT>
              <SECTNO>436.605</SECTNO>
              <SUBJECT>Government cost estimate for architect-engineer work.</SUBJECT>
              <SECTNO>436.609</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>436.609-1</SECTNO>
              <SUBJECT>Design within funding limitations.</SUBJECT>
              <SECTNO>436.670</SECTNO>
              <SUBJECT>Firms ineligible for award—construction.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 436.2—Special Aspects of Contracting for Construction</HD>
            <SECTION>
              <SECTNO>436.201</SECTNO>
              <SUBJECT>Evaluation of contractor performance.</SUBJECT>
              <P>
                <E T="03">Preparation of performance evaluation reports.</E> In addition to the requirements of FAR 36.201, performance evaluation reports shall be prepared for indefinite-delivery type contracts when either the contract maximum or the contracting activity's reasonable estimate of services to be ordered exceeds $500,000.00. For these contracts, performance evaluation reports shall be prepared for each order at the time of final acceptance of the work under the order.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.203</SECTNO>
              <SUBJECT>Government estimate of construction costs.</SUBJECT>
              <P>For acquisitions using sealed bid procedures, the contracting officer may disclose the overall amount of the Government's estimate of construction costs following identification of the responsive bid most advantageous to the Government; verification of that bid's price reasonableness; and verification of the bidder's responsibility. For acquisitions using other than sealed bid procedures (e.g., negotiation), the contracting officer may disclose the overall amount of the estimate after contract award.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.204</SECTNO>
              <SUBJECT>Disclosure of the magnitude of construction projects.</SUBJECT>
              <P>In the case of indefinite-delivery type contracts, the reasonable estimate of work to be done or the maximum in the solicitation, both including all options, is to be used to select the price range. Contracting officers may elect to use both a price range for the base period of services and the total, inclusive of options, to best describe the magnitude of the solicitation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.205</SECTNO>
              <SUBJECT>Statutory cost limitations.</SUBJECT>
              <P>(a) When it appears that funds available for a project may be insufficient for all the desired features of construction, the contracting officer may provide in the solicitation for a base bid item covering the work generally as specified and for one or more additive or deductive bid items which progressively add or omit specified features of the work in a stated order of priority. In this case, the contracting officer shall insert the provision at 452.236-70, Additive or Deductive Items, in solicitations for construction.</P>
              <P>(b) In the alternative to the process in paragraph (a) of this section, the contracting officer may use the policies and procedures found in FAR 17.2.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.209</SECTNO>
              <SUBJECT>Construction contracts with architect-engineer firms.</SUBJECT>
              <P>The head of the contracting activity (HCA) is authorized to approve the award of a contract to construct a project, in whole or in part, to the firm (inclusive of its subsidiaries or affiliates) that designed the project.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.213</SECTNO>
              <SUBJECT>Special procedures for sealed bidding in construction contracting.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>436.213-2</SECTNO>
              <SUBJECT>Presolicitation notices.</SUBJECT>
              <P>The authority to waive a presolicitation notice is restricted to the HCA.</P>
              <CITA>[63 FR 26995, May 15, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 436.3 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 436.5—Contract Clauses</HD>
            <SECTION>
              <SECTNO>436.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes clauses for insertion in USDA solicitations and contracts for construction and for dismantling, demolition, or removal of improvements or structures. The contracting officer shall use the clauses as prescribed, in contracts that exceed the simplified acquisition threshold. The contracting officer may use the clauses if the contract amount is expected to be within the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="137"/>
              <SECTNO>436.571</SECTNO>
              <SUBJECT>Prohibition against the use of lead-based paint.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-71, Prohibition Against the Use of Lead-Based Paint, in solicitations and contracts, if the work involves construction or rehabilitation (including dismantling, demolition, or removal) of residential structures. This clause may be used in contracts for other than residential structures.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.572</SECTNO>
              <SUBJECT>Use of premises.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-72, Use of Premises, if the contractor will be permitted to use land or premises administered by USDA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.573</SECTNO>
              <SUBJECT>Archeological or historic sites.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-73, Archeological or Historic Sites, if the contractor will be working in an area where such sites may be found. Use of the clause is optional in service contracts for on-the-ground work, e.g. reforestation, silvicultural, land stabilization, or other agricultural-related projects.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.574</SECTNO>
              <SUBJECT>Control of erosion, sedimentation, and pollution.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-74, Control of Erosion, Sedimentation and Pollution, if there is a need for applying environmental controls in the performance of work. Use of the clause is optional in service contracts for on-the-ground e.g., reforestation, silvicultural, land stabilization, or other agricultural-related projects.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.575</SECTNO>
              <SUBJECT>Maximum workweek-construction schedule.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-75, Maximum Workweek-Construction Schedule, if the clause at FAR 52.236-15 is used and the contractor's work schedule is restricted by access to the facility or must be coordinated with the schedule of contract administration personnel.</P>
              <CITA>[63 FR 26996, May 15, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>436.576</SECTNO>
              <SUBJECT>Samples and certificates.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-76, Samples and Certificates, in all contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.577</SECTNO>
              <SUBJECT>Emergency response.</SUBJECT>
              <P>The contracting officer may insert the clause at 452.236-77, Emergency Response, in construction contracts awarded for the Forest Service.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.578</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>436.579</SECTNO>
              <SUBJECT>Opted timber sale road requirements.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-79, Opted Timber Sale Road Requirements, in road construction contracts resulting from a timber sale turnback.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 436.6—Architect-Engineer Service</HD>
            <SECTION>
              <SECTNO>436.601</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>436.601-3</SECTNO>
              <SUBJECT>Applicable contracting procedures.</SUBJECT>
              <P>The technical official's listing of areas where recovered materials cannot be used shall be referred to the contracting activity's official designated in accordance with FAR 23.404. A copy of the listing and of any approval or disapproval by that official is to be retained in the solicitation file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.602</SECTNO>
              <SUBJECT>Selection of firms for architect-engineer contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>436.602-1</SECTNO>
              <SUBJECT>Selection criteria.</SUBJECT>
              <P>The HCA is authorized to approve the use of design competition under the conditions in FAR 36.602-1(b).</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <P>HCA's shall establish written procedures for providing permanent or ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-2. The procedures may provide for the appointment of private practitioners of architecture, engineering, or related professions when such action is determined by the HCA to be essential to meet the Government's minimum needs.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="138"/>
              <SECTNO>436.602-3</SECTNO>
              <SUBJECT>Evaluation board functions.</SUBJECT>
              <P>The selection report required in FAR 36.602-3(d) shall be prepared for the approval of the HCA. The HCA may authorize an acquisition official above the level of the contracting officer to execute the required approval.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.602-4</SECTNO>
              <SUBJECT>Selection authority.</SUBJECT>
              <P>(a) The HCA shall serve as the selection authority in accordance with FAR 36.602-4. The HCA may authorize an acquisition official above the level of the contracting officer to serve as the selection authority.</P>
              <P>(b) A copy of the final selection, inclusive of the supporting documents, shall be provided to the contracting officer and maintained in the solicitation file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.602-5</SECTNO>
              <SUBJECT>Short selection process for contracts not to exceed the simplified acquisition threshold.</SUBJECT>
              <P>The HCA may include either or both procedures in FAR 36.602-5 in the procedures for evaluation boards.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.603</SECTNO>
              <SUBJECT>Collecting data on and appraising firms' qualifications.</SUBJECT>
              <P>(a) HCA's which require architect-engineer services shall establish procedures to comply with the requirements of FAR 36.603.</P>
              <P>(b) The procedures shall include a list of names, addresses, and phone numbers of offices or boards assigned to maintain architect-engineer qualification data files. The list shall be updated annually.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.604</SECTNO>
              <SUBJECT>Performance evaluation.</SUBJECT>
              <P>
                <E T="03">Preparation of performance evaluation reports.</E> (a) In addition to the requirements of FAR 36.604, performance evaluation reports shall be prepared for indefinite-delivery type contracts when either the contract maximum or the contracting activities reasonable estimate of services to be ordered exceeds $25,000.00. For these contracts, performance evaluation reports shall be prepared for each order at the time of final acceptance of the work under the order.</P>
              <P>(b) The contracting officer may require a performance evaluation report on the work done by the architect-engineer after the completion of or during the construction of the designed project.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.605</SECTNO>
              <SUBJECT>Government cost estimate for architect-engineer work.</SUBJECT>
              <P>The contracting officer may release the Government's total cost estimate in accordance with FAR 36.605(b).</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.609</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>436.609-1</SECTNO>
              <SUBJECT>Design within funding limitations.</SUBJECT>
              <P>(a) Should the head of the contracting activity appoint a designee to make the determination in FAR 36.609-1(c)(1), the appointment may be to one no lower than the official authorized to commit program funds for the work being acquired.</P>
              <P>(b) The contracting officer, with the advice of appropriate technical representatives, may make the determination in FAR 36.609-1(c)(2) or (3).</P>
              <P>(c) A copy of the determinations described in paragraph (b) and (c) of this section shall be maintained in the contract file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>436.670</SECTNO>
              <SUBJECT>Firms ineligible for award—construction.</SUBJECT>
              <P>The contracting officer shall insert the clause at 452.236-80, Firms Ineligible For Award—Construction, in the contract for architect-engineering services except as provided in FAR 36.209 and AGAR 436.209.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 437</EAR>
          <HD SOURCE="HED">PART 437—SERVICE CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 437.1—Service Contracts—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>437.104</SECTNO>
              <SUBJECT>Personal services contracts.</SUBJECT>
              <SECTNO>437.110</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 437.2—Advisory and Assistance Services</HD>
              <SECTNO>437.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>437.204</SECTNO>
              <SUBJECT>Guidelines for determining availability of personnel.</SUBJECT>
              <SECTNO>437.270</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="139"/>
            <HD SOURCE="HED">Subpart 437.1—Service Contracts—General</HD>
            <SECTION>
              <SECTNO>437.104</SECTNO>
              <SUBJECT>Personal services contracts.</SUBJECT>
              <P>USDA has the following specific statutory authorities to contract for personal services:</P>

              <P>(a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) authorizes contracting with persons or organizations on a temporary basis, without regard to civil service compensation classification standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, <E T="03">Provided:</E>
              </P>
              <P>(1) That no expenditures shall be made unless specifically provided for in the applicable appropriation, and</P>
              <P>(2) Expenditures do not exceed any limitations prescribed in the appropriation.</P>

              <P>(b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to contract with technically qualified persons, firms or organizations to perform research, inspection, classification, technical, or other special services, without regard to the civil-service laws, <E T="03">Provided:</E> it is for a temporary basis and for a term not to exceed six months in any fiscal year.</P>
            </SECTION>
            <SECTION>
              <SECTNO>437.110</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) The contracting officer shall insert a clause substantially the same as the clause at 452.237-70, Loss Damage, Destruction or Repair, in contracts for equipment rental, whether the equipment is furnished with or without operator.</P>
              <P>(b) The contracting officer shall insert a provision substantially the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, in all solicitations if a conference with prospective offerors will be held prior to the submittal of bids or proposals.</P>
              <P>(c) The contracting officer shall insert the provision at 452.237-73, Equipment Inspection visit, in solicitations if work is to be done on Government equipment and an offeror's inspection is encouraged for an understanding of the work to be performed prior to submittal of bids or proposals.</P>
              <P>(d) The contracting officer shall insert a clause substantially the same as the clause at 452.237-74, Key Personnel, in contracts if contract performance requires identification of the contractor's key personnel.</P>
              <P>(e) The contracting officer shall insert a clause substantially the same as the clause at 452.237-75, Restrictions Against Disclosure, in service contracts (including architect-engineer contracts) requiring restrictions on release of information developed or obtained in connection with performance of the contract.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 437.2—Advisory and Assistance Services</HD>
            <SECTION>
              <SECTNO>437.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Contracting for advisory and assistance services is subject to the policy and procedures in Departmental Regulations (5000 series).</P>
            </SECTION>
            <SECTION>
              <SECTNO>437.204</SECTNO>
              <SUBJECT>Guidelines for determining availability of personnel.</SUBJECT>
              <P>The head of the contracting activity (HCA) is authorized to approve the use of non-Government evaluators in proposal evaluation. Each such decision shall be supported by a written determination in accordance with FAR 37.204.</P>
              <CITA>[64 FR 52675, Sept. 30, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>437.270</SECTNO>
              <SUBJECT>Solicitation and contract clauses.</SUBJECT>
              <P>(a) The contracting officer shall insert a clause substantially the same as the clause at 452.237-76, Progress Reporting, in all contracts for advisory and assistance services. It may also be used in other service contracts.</P>
              <P>(b) The contracting officer shall insert a clause substantially the same as the clause at 452.237-78, Contracts with Consulting Firms for Services, in solicitations and contracts for consulting services which prohibit follow-on contracts with the contracting firm.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 438 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 439</EAR>
          <HD SOURCE="HED">PART 439—ACQUISITION OF INFORMATION TECHNOLOGY</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 439.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>439.101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <PRTPAGE P="140"/>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 439.1—General</HD>
            <SECTION>
              <SECTNO>439.101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) In addition to policy and regulatory guidance contained in the FAR and AGAR:</P>
              <P>(1) The USDA Information Technology Capital Planning and Investment Control Guide (CPIC) establishes requirements for the acquisition of information technology.</P>
              <P>(2) Specific thresholds at which USDA Office of the Chief Information Officer Information Technology Acquisition Approval is required have been established.</P>
              <P>(3) The procurement authority delegated to USDA Agencies is established in Departmental Regulations 5000 series.</P>

              <P>(4) The CPIC Guide and USDA CIO policy and procedural guidance are available on the USDA OCIO Web site at <E T="03">http://www.ocio.usda.gov.</E> Notices of changes in the Information Technology Acquisition Approval Thresholds are also promulgated by AGAR Advisory.</P>
              <P>(b) Acquisition of on-line courseware libraries and learning management system services requires specific approval of the ASA and CIO. Information regarding the specific approval requirements and processes is promulgated by AGAR Advisory.</P>
              <CITA>[70 FR 49, Jan. 3, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 440 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 441</EAR>
          <HD SOURCE="HED">PART 441—ACQUISITION OF UTILITY SERVICES</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 441.2—Acquiring Utility Services</HD>
            <SECTION>
              <SECTNO>441.201</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency head designee is the head of the contracting activity.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="141"/>
        <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        <PART>
          <EAR>Pt. 442</EAR>
          <HD SOURCE="HED">PART 442—CONTRACT ADMINISTRATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 442.1—Interagency Contract Administration and Audit Services</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>442.102</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 442.15—Contractor Performance Information</HD>
              <SECTNO>442.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 442.1—Interagency Contract Administration and Audit Services</HD>
            <SECTION>
              <SECTNO>442.102</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) The Office of Inspector General (OIG), Audit Division, has established a cross-servicing arrangement with the Defense Contract Audit Agency (DCAA) to provide contract audit services required by the FAR.</P>
              <P>(b) All contract audit services required by contracting officers, except those which can be accomplished in-house, shall be coordinated through the cognizant OIG Regional Inspector General—Auditing (RIG-A). Cognizance is determined on the basis of the contractor's location. There is no charge for DCAA audit services coordinated through OIG.</P>
              <P>(c) In order to ensure compliance with this requirement and to evaluate the results of audits, contracting officers shall forward to the RIG-A copies of all price negotiation memoranda prepared for contracts and contract modifications in excess of $500,000.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 442.15—Contractor Performance Information</HD>
            <SECTION>
              <SECTNO>442.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>The Contractor Performance System (CPS), developed by the National Institutes of Health, is designated as the single USDA-wide system for maintaining contractor performance/evaluation information. Use of the CPS is mandatory. As a minimum, the CPS shall be accessed for contractor past performance information as part of proposal evaluation in accordance with FAR subpart 15.3, and information resulting from the evaluation of contractor performance in accordance with FAR subpart 42.15 shall be entered into and maintained in this system. The CPS is a part of the USDA Acquisition Toolkit which can be accessed from the USDA Procurement Homepage at <E T="03">http://www.usda.gov/procurement/.</E>
              </P>
              <CITA>[66 FR 49867, Oct. 1, 2001]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 443-444 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 445</EAR>
          <HD SOURCE="HED">PART 445—GOVERNMENT PROPERTY</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 445.3—Providing Government Property to Contractors</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>445.302</SECTNO>
              <SUBJECT>Providing facilities.</SUBJECT>
              <SECTNO>445.302-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 445.4—Contractor Use and Rental of Government Property</HD>
              <SECTNO>445.403</SECTNO>
              <SUBJECT>Rental—Use and Charges clause.</SUBJECT>
              <SECTNO>445.407</SECTNO>
              <SUBJECT>Non-Government use of plant equipment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart 445.6 [Reserved]</RESERVED>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 445.3—Providing Government Property to Contractors</HD>
            <SECTION>
              <SECTNO>445.302</SECTNO>
              <SUBJECT>Providing facilities.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>445.302-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Heads of contracting activities (HCA's) are authorized to make determinations for providing facilities to a contractor as prescribed in FAR 45.302-1(a)(4).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="142"/>
            <HD SOURCE="HED">Subpart 445.4—Contractor Use and Rental of Government Property</HD>
            <SECTION>
              <SECTNO>445.403</SECTNO>
              <SUBJECT>Rental—Use and Charges clause.</SUBJECT>
              <P>HCA's are authorized to make determinations for charging rent on the basis of use under the Use and Charges clause in FAR 52.245-9 as prescribed in FAR 45.403(a).</P>
            </SECTION>
            <SECTION>
              <SECTNO>445.407</SECTNO>
              <SUBJECT>Non-Government use of plant equipment.</SUBJECT>
              <P>Requests for non-Government use of plant equipment as prescribed in FAR 45.407 shall be submitted by the HCA to the Senior Procurement Executive (SPE) for approval.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart 445.6 [Reserved]</RESERVED>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 446</EAR>
          <HD SOURCE="HED">PART 446—QUALITY ASSURANCE</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 30 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 446.3—Contract Clauses</HD>
            <SECTION>
              <SECTNO>446.370</SECTNO>
              <SUBJECT>Inspection and acceptance.</SUBJECT>
              <P>The Contracting Officer shall insert the clause at 452.246-70, Inspection and Acceptance, in contracts where inspection and acceptance will be performed at the same location. The clause with its Alternate I is for use when inspection and acceptance will be performed at different locations.</P>
              <CITA>[61 FR 53646, Oct. 15, 1996]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 447</EAR>
          <HD SOURCE="HED">PART 447—TRANSPORTATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 447.3—Transportation in Supply Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>447.302</SECTNO>
              <SUBJECT>Place of delivery—F.O.B. point.</SUBJECT>
              <SECTNO>447.305</SECTNO>
              <SUBJECT>Solicitation provisions, contract clauses, and transportation factors.</SUBJECT>
              <SECTNO>447.305-10</SECTNO>
              <SUBJECT>Packing, marking, and consignment instructions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 30 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 447.3—Transportation in Supply Contracts</HD>
            <SECTION>
              <SECTNO>447.302</SECTNO>
              <SUBJECT>Place of delivery—F.O.B. point.</SUBJECT>
              <P>The contracting officer shall insert a clause substantially the same as the clause at 452.247-70, Delivery Location, in supply contracts when it is necessary to specify delivery locations. If appropriate, the clause may reference an attachment which lists various delivery locations and other delivery details (e.g., quantities to be delivered to each location, etc.).</P>
            </SECTION>
            <SECTION>
              <SECTNO>447.305</SECTNO>
              <SUBJECT>Solicitation provisions, contract clauses, and transportation factors.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>447.305-10</SECTNO>
              <SUBJECT>Packing, marking, and consignment instructions.</SUBJECT>
              <P>(a) The contracting officer shall insert a clause substantially the same as the clause at 452.247-71, Marking Deliverables, in solicitations and contracts if special marking on deliverables (other than reports) are required.</P>
              <P>(b) The contracting officer shall insert the clause at 452.247-72, Packing for Domestic Shipment, in contracts when item(s) will be delivered for immediate use to a destination in the continental United States; when the material specification or purchase description does not provide preservation, packaging, packing, and/or marking requirements; and/or when the requiring activity has not cited a specific specification for packaging.</P>
              <P>(c) The contracting officer shall insert the clause at 452.247-73, Packing for Overseas Shipment, in contracts when item(s) will be delivered to an overseas destination for immediate use, the material specification does not specify packing levels, and the required activity has not specified such requirements.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 448 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <PRTPAGE P="143"/>
          <EAR>Pt. 449</EAR>
          <HD SOURCE="HED">PART 449—TERMINATION OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 449.1—General Principles</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>449.106</SECTNO>
              <SUBJECT>Fraud or other criminal conduct.</SUBJECT>
              <SECTNO>449.111</SECTNO>
              <SUBJECT>Review of proposed settlements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 449.4—Termination for Default</HD>
              <SECTNO>449.402</SECTNO>
              <SUBJECT>Termination of fixed-price contracts for default.</SUBJECT>
              <SECTNO>449.402-3</SECTNO>
              <SUBJECT>Procedure for default.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 449.5—Contract Termination Clauses</HD>
              <SECTNO>449.501</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 449.1—General Principles</HD>
            <SECTION>
              <SECTNO>449.106</SECTNO>
              <SUBJECT>Fraud or other criminal conduct.</SUBJECT>
              <P>(a) If the contracting officer suspects fraud or other criminal conduct a written report documenting the facts shall be submitted by the head of the contracting activity (HCA) to the Office of Inspector General. Copies of documents or other information connected with the suspected fraud or criminal conduct shall be provided with the report. Concurrently, a copy of the report shall also be submitted to the Senior Procurement Executive.</P>
              <P>(b) Depending on the findings of the Office of Inspector General, the HCA may initiate suspension or debarment action as prescribed in FAR part 9.4 and part 409.4.</P>
            </SECTION>
            <SECTION>
              <SECTNO>449.111</SECTNO>
              <SUBJECT>Review of proposed settlements.</SUBJECT>
              <P>Proposed settlement agreements shall be reviewed and approved in accordance with contracting activity procedures.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 449.4—Termination for Default</HD>
            <SECTION>
              <SECTNO>449.402</SECTNO>
              <SUBJECT>Termination of fixed-price contracts for default.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>449.402-3</SECTNO>
              <SUBJECT>Procedure for default.</SUBJECT>
              <P>In addition to the requirements of FAR 49.402-3(g), the notice of termination shall contain instructions regarding the disposition of any Government property in the possession of the contractor (see FAR 45.508-1) and, in the case of construction contracts, such materials, appliances, and structures as may be on the site of the construction work. The notice shall also contain a statement concerning the liability of the contractor or its surety for any liquidated damages (see FAR 49.402-7).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 449.5—Contract Termination Clauses</HD>
            <SECTION>
              <SECTNO>449.501</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Use of special purpose termination clauses pursuant to the authority of FAR 49.501 shall be approved in advance by the HCA.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 450</EAR>
          <HD SOURCE="HED">PART 450—EXTRAORDINARY CONTRACTUAL ACTIONS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>450.001</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SUBPART>
              <RESERVED>Subpart 450.1 [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 450.2—Delegation of and Limitations on Exercise of Authority</HD>
              <SECTNO>450.201</SECTNO>
              <SUBJECT>Delegation of authority.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 450.3—Contract Adjustments</HD>
              <SECTNO>450.303</SECTNO>
              <SUBJECT>Contract adjustment.</SUBJECT>
              <SECTNO>450.303-1</SECTNO>
              <SUBJECT>Contractor requests.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>450.001</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>
              <E T="03">Approving authority,</E> as used in this part, means the Assistant Secretary for Administration.</P>
            <P>
              <E T="03">Secretarial level,</E> as used in this part means the Assistant Secretary for Administration.</P>
          </SECTION>
          <SUBPART>
            <PRTPAGE P="144"/>
            <RESERVED>Subpart 450.1 [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 450.2—Delegation of and Limitations on Exercise of Authority</HD>
            <SECTION>
              <SECTNO>450.201</SECTNO>
              <SUBJECT>Delegation of authority.</SUBJECT>
              <P>The Assistant Secretary for Administration is authorized to approve all actions under FAR part 50 except indemnification actions listed in FAR 50.201(d) which must be approved by the Secretary, without power of delegation.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 450.3—Contract Adjustments</HD>
            <SECTION>
              <SECTNO>450.303</SECTNO>
              <SUBJECT>Contract adjustment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>450.303-1</SECTNO>
              <SUBJECT>Contractor requests.</SUBJECT>
              <P>Contractor requests shall be submitted to the contracting officer.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 451 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="145"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        <PART>
          <EAR>Pt. 452</EAR>
          <HD SOURCE="HED">PART 452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 452.2—Texts of Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>452.204-70</SECTNO>
              <SUBJECT>Inquiries.</SUBJECT>
              <SECTNO>452.211-70</SECTNO>
              <SUBJECT>Brand Name or Equal.</SUBJECT>
              <SECTNO>452.211-71</SECTNO>
              <SUBJECT>Equal Products Offered.</SUBJECT>
              <SECTNO>452.211-72</SECTNO>
              <SUBJECT>Statement of Work/Specifications.</SUBJECT>
              <SECTNO>452.211-73</SECTNO>
              <SUBJECT>Attachments to Statement of Work/Specifications.</SUBJECT>
              <SECTNO>452.211-74</SECTNO>
              <SUBJECT>Period of Performance.</SUBJECT>
              <SECTNO>452.211-75</SECTNO>
              <SUBJECT>Effective Period of the Contract.</SUBJECT>
              <SECTNO>452.214-70</SECTNO>
              <SUBJECT>Award by Lot.</SUBJECT>
              <SECTNO>452.215-71</SECTNO>
              <SUBJECT>Instructions for the Preparation of Technical and Business Proposals.</SUBJECT>
              <SECTNO>452.215-72</SECTNO>
              <SUBJECT>Amendments to Proposals.</SUBJECT>
              <SECTNO>452.215-73</SECTNO>
              <SUBJECT>Post Award Conference.</SUBJECT>
              <SECTNO>452.216-70</SECTNO>
              <SUBJECT>Award Fee.</SUBJECT>
              <SECTNO>452.216-71</SECTNO>
              <SUBJECT>Base Fee and Award Fee Proposal.</SUBJECT>
              <SECTNO>452.216-72</SECTNO>
              <SUBJECT>Evaluation Quantities—Indefinite-Delivery Contract.</SUBJECT>
              <SECTNO>452.216-73</SECTNO>
              <SUBJECT>Minimum and Maximum Contract Amounts.</SUBJECT>
              <SECTNO>452.216-74</SECTNO>
              <SUBJECT>Ceiling Price.</SUBJECT>
              <SECTNO>452.216-75</SECTNO>
              <SUBJECT>Letter Contract.</SUBJECT>
              <SECTNO>452.219-70</SECTNO>
              <SUBJECT>Size Standard and NAICS Code Information.</SUBJECT>
              <SECTNO>452.224-70</SECTNO>
              <SUBJECT>Confidentiality of Information.</SUBJECT>
              <SECTNO>452.226-70—452.226-72</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>452.228-70</SECTNO>
              <SUBJECT>Alternative Forms of Security.</SUBJECT>
              <SECTNO>452.228-71</SECTNO>
              <SUBJECT>Insurance Coverage.</SUBJECT>
              <SECTNO>452.232-70</SECTNO>
              <SUBJECT>Reimbursement for Bond Premiums—Fixed-Price Construction Contracts.</SUBJECT>
              <SECTNO>452.236-70</SECTNO>
              <SUBJECT>Additive or Deductive Items.</SUBJECT>
              <SECTNO>452.236-71</SECTNO>
              <SUBJECT>Prohibition Against the Use of Lead-Based Paint.</SUBJECT>
              <SECTNO>452.236-72</SECTNO>
              <SUBJECT>Use of Premises.</SUBJECT>
              <SECTNO>452.236-73</SECTNO>
              <SUBJECT>Archaeological or Historic Sites.</SUBJECT>
              <SECTNO>452.236-74</SECTNO>
              <SUBJECT>Control of Erosion, Sedimentation, and Pollution.</SUBJECT>
              <SECTNO>452.236-75</SECTNO>
              <SUBJECT>Maximum Workweek—Construction Schedule.</SUBJECT>
              <SECTNO>452.236-76</SECTNO>
              <SUBJECT>Samples and Certificates.</SUBJECT>
              <SECTNO>452.236-77</SECTNO>
              <SUBJECT>Emergency Response.</SUBJECT>
              <SECTNO>452.236-78</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>452.236-79</SECTNO>
              <SUBJECT>Opted Timber Sale Road Requirements.</SUBJECT>
              <SECTNO>452.236-80</SECTNO>
              <SUBJECT>Firms Ineligible for Award—Construction.</SUBJECT>
              <SECTNO>452.237-70</SECTNO>
              <SUBJECT>Loss, Damage, Destruction or Repair.</SUBJECT>
              <SECTNO>452.237-71</SECTNO>
              <SUBJECT>Pre-Bid/Pre-Proposal Conference.</SUBJECT>
              <SECTNO>452.237-73</SECTNO>
              <SUBJECT>Equipment Inspection Visit.</SUBJECT>
              <SECTNO>452.237-74</SECTNO>
              <SUBJECT>Key Personnel.</SUBJECT>
              <SECTNO>452.237-75</SECTNO>
              <SUBJECT>Restrictions Against Disclosure.</SUBJECT>
              <SECTNO>452.237-76</SECTNO>
              <SUBJECT>Progress Reporting.</SUBJECT>
              <SECTNO>452.237-78</SECTNO>
              <SUBJECT>Contracts with Consulting Firms for Services.</SUBJECT>
              <SECTNO>452.246-70</SECTNO>
              <SUBJECT>Inspection and Acceptance.</SUBJECT>
              <SECTNO>452.247-70</SECTNO>
              <SUBJECT>Delivery Location.</SUBJECT>
              <SECTNO>452.247-71</SECTNO>
              <SUBJECT>Marking Deliverables.</SUBJECT>
              <SECTNO>452.247-72</SECTNO>
              <SUBJECT>Packing for Domestic Shipment.</SUBJECT>
              <SECTNO>452.247-73</SECTNO>
              <SUBJECT>Packing for Overseas Shipment.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 452.2—Texts of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>452.204-70</SECTNO>
              <SUBJECT>Inquiries.</SUBJECT>
              <P>As prescribed in 404.7001, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Inquiries (FEB 1988)</HD>
                <P>Inquiries and all correspondence concerning this solicitation should be submitted in writing to the Contracting Officer. Offerors should contact only the Contracting Officer issuing the solicitation about any aspect of this requirement prior to contract award.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.211-70</SECTNO>
              <SUBJECT>Brand Name or Equal.</SUBJECT>
              <P>As prescribed in 411.171, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Brand Name or Equal (NOV 1996)</HD>
                <P>(As used in this provision, the term “brand name” includes identification of products by make and model.)</P>
                <P>(a) If items called for by this solicitation have been identified by a “brand name or equal” description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Offers of “equal” products (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the offer (see clause 452.211-71) and are determined by the Contracting Officer to meet fully the salient characteristics requirements listed in the solicitation.</P>
                <P>(b) Unless the offeror clearly indicates in its offer that it is offering an “equal” product, the offeror shall be considered as offering the brand name product(s) referenced in the solicitation.</P>

                <P>(c)(1) If the offeror proposes to furnish an “equal” product or products, the brand <PRTPAGE P="146"/>name(s), if any, and any other required information about the product(s) to be furnished shall be inserted in the space provided in the solicitation. The evaluation of offers and the determination as to the equality of the product(s) offered shall be the responsibility of the Government and will be based on information furnished by the offeror or identified in its offer as well as other information reasonably available to the contracting activity. Caution to offerors: The contracting activity is not responsible for locating or securing any information which is not identified in the offer and is not reasonably available to the contracting activity. Accordingly, to assure that sufficient information is available, the offeror must furnish as a part of its offer all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the contracting activity to (i) determine whether the product offered meets the salient characteristics requirement of the solicitation, and (ii) establish exactly what the offeror proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may include specific reference to information previously furnished or to information otherwise available to the contracting activity.</P>
                <P>(2) If an offeror proposes to modify a product so as to make it conform to the requirements of the solicitation, the offer shall include (i) a clear description of such proposed modifications and (ii) clearly marked descriptive material to show the proposed modifications.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, as amended at 70 FR 50, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.211-71</SECTNO>
              <SUBJECT>Equal Products Offered.</SUBJECT>
              <P>As prescribed in 411.171, insert the following or substantially the same clause in solicitations seeking offers on a “brand name or equal” basis to allow offerors the opportunity to clearly identify the “equal” item being offered, and to illustrate how that item meets the salient characteristics requirements of the Government.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Equal Products Offered (NOV 1996)</HD>
                <P>(a) Offerors proposing to furnish an “equal” product, in accordance with the “Brand Name or Equal” provision of this solicitation, shall provide the following information for each offered “equal” product:</P>
                <FP SOURCE="FP-DASH">Contract Line Item Number (if any):</FP>
                <FP SOURCE="FP-DASH">Brand Name or Equal Product identified by the Government in this solicitation:</FP>
                <FP SOURCE="FP-DASH">Offered Product Name:</FP>
                <FP SOURCE="FP-DASH">Catalog Description or part number:</FP>
                <FP SOURCE="FP-DASH"/>
                <FP SOURCE="FP-DASH">Manufacturer's Name:</FP>
                <FP SOURCE="FP-DASH">Manufacturer's Address:</FP>
                <FP SOURCE="FP-DASH"/>
                <FP SOURCE="FP-DASH"/>
                <P>(b) Offerors are responsible for submitting all additional information on the above product necessary for the Contracting Officer to determine whether the product offered meets the “brand name or equal” product's salient characteristics listed in the solicitation.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.211-72</SECTNO>
              <SUBJECT>Statement of Work/Specifications.</SUBJECT>
              <P>As prescribed in 411.171, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Statement of Work/Specifications (FEB 1988)</HD>
                <P>The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.211-73</SECTNO>
              <SUBJECT>Attachments to Statement of Work/Specifications.</SUBJECT>
              <P>As prescribed in 411.171, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Attachments to Statement of Work/Specifications (FEB 1988)</HD>
                <P>The attachments to the Statement of Work/Specifications listed in Section J are hereby made part of this solicitation and any resultant contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.211-74</SECTNO>
              <SUBJECT>Period of Performance.</SUBJECT>
              <P>As prescribed in 411.404(a), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Period of Performance (FEB 1988)</HD>
                <P>The period of performance of this contract is from ___ through ___.*</P>
              </EXTRACT>
              <PRTPAGE P="147"/>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert the appropriate dates.</E>
              </P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.211-75</SECTNO>
              <SUBJECT>Effective Period of the Contract.</SUBJECT>
              <P>As prescribed in 411.404(b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Effective Period of the Contract (FEB 1988)</HD>
                <P>The effective period of this contract is from ___ through ___.*</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert the appropriate dates.</E>
              </P>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.214-70</SECTNO>
              <SUBJECT>Award by Lot.</SUBJECT>
              <P>As prescribed in 414.201-6, insert a provision substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Award by Lot (NOV 1996)</HD>
                <P>Subject to the Section L provision FAR 52.214-10, “Contract Award—Sealed Bidding,” award will generally be made to a single bidder on each entire lot. However, the Government reserves the right to award by item within any lot when the contracting officer determines that it is advantageous to the Government.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.215-71</SECTNO>
              <SUBJECT>Instructions for the Preparation of Technical and Business Proposals.</SUBJECT>
              <P>As prescribed in 415.209(a), insert a provision substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Instructions for the Preparation of Technical and Business Proposals (SEP 1999)</HD>
                <P>(a) <E T="03">General Instructions.</E> Proposals submitted in response to this solicitation shall be furnished in the following format with the numbers of copies as specified below.</P>
                <P>(1) The proposal must include a technical proposal and business proposal. Each of the parts shall be separate and complete so that evaluation of one may be accomplished independently from evaluation of the other. The technical proposal must not contain reference to cost; however, resource information (such as data concerning labor hours and categories, materials, subcontracts, etc.) must be contained in the technical proposal so that the contractor's understanding of the statement of work may be evaluated.</P>
                <P>(2) Offerors may, at their discretion, submit alternate proposals or proposals which deviate from the requirement; provided, that an offeror also submit a proposal for performance of the work as specified in the statement of work. Any “alternate” proposal may be considered if overall performance would be improved or not compromised, and if it is in the best interest of the Government. Alternate proposals, or deviations from any requirement of this RFP, must be clearly identified.</P>
                <P>(3) The Government will evaluate proposals in accordance with the evaluation criteria set forth in Section M of this RFP.</P>
                <P>(4) Offerors shall submit their proposal(s) in the following format and the quantities specified:</P>
                <P>(a) ___* copies of the completed, signed offer (Sections A through K of the solicitation package)</P>
                <P>(b) ___* copies of the technical proposal</P>
                <P>(c) ___* copies of the business/cost proposal</P>
                <P>(b) <E T="03">Technical Proposal Instructions.</E> The technical proposal will be used to make an evaluation and arrive at a determination as to whether the proposal will meet the requirements of the Government. Therefore, the technical proposal must present sufficient information to reflect a thorough understanding of the requirements and a detailed, description of the techniques, procedures and program for achieving the objectives of the specifications/statement of work. Proposals which merely paraphrase the requirements of the Government's specifications/ statement of work, or use such phrases as “will comply” or “standard techniques will be employed” will be considered unacceptable and will not be considered further. As a minimum, the proposal must clearly provide the following:</P>
                <P>(<E T="03">Contracting Officer shall identify in this section the minimum information required to evaluate each technical evaluation factor listed in Section M.</E>)</P>
                <P>(c) <E T="03">Business Proposal Instructions.</E>
                </P>
                <P>(1) Cost Proposal.</P>
                <P>In addition to any other requirements for cost/pricing information required in clause FAR 52.215-20, Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data (OCT 1997), the following is required:</P>
                <P>(<E T="03">Contracting Officer shall identify additional information required if appropriate.</E>)</P>
                <P>(2) Business Proposal.</P>

                <P>(a) Furnish financial statements for the last two years, including an interim statement for the current year, unless previously provided to the office issuing the RFP, in which case a statement as to when and where this information was provided may be furnished instead.<PRTPAGE P="148"/>
                </P>
                <P>(b) Specify the financial capacity, working capital and other resources available to perform the contract without assistance from any outside source.</P>
                <P>(c) Provide the name, location, and intercompany pricing policy for other divisions, subsidiaries, parent company, or affiliated companies that will perform work or furnish materials under this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>*<E T="03">Contracting officer shall insert number of copies required.</E>
              </P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999; 70 FR 50, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.215-72</SECTNO>
              <SUBJECT>Amendments to Proposals.</SUBJECT>
              <P>As prescribed in 415.209(b), insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Amendments to Proposals (FEB 1988)</HD>
                <P>Any changes to a proposal made by the offeror after its initial submittal shall be accomplished by replacement pages. Changes from the original page shall be indicated on the outside margin by vertical lines adjacent to the change. The offeror shall include the date of the amendment on the lower right corner of the changed pages.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.215-73</SECTNO>
              <SUBJECT>Post Award Conference.</SUBJECT>
              <P>As prescribed in 415.570, insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Post Award Conference (NOV 1996)</HD>
                <P>A post award conference with the successful offeror is required. It will be scheduled within ___* days after the date of contract award. The conference will be held at: ___*.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting officer to insert number of days and location.</E>
              </P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.216-70</SECTNO>
              <SUBJECT>Award Fee.</SUBJECT>
              <P>As prescribed in 416.405, insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Award Fee (FEB 1988)</HD>
                <P>The amount of award fee the Contractor earns, if any, is based on a subjective evaluation by the Government of the quality of the Contractor's performance in accordance with the award fee plan. The Government will determine the amount of award fee every ___* months beginning with ___*. The Fee Determination Official (FDO) will unilaterally determine the amount of award fee. The FDO's determination will be in writing to the Contractor and is not subject to the “Disputes” clause. The Government may unilaterally change the award fee plan at any time and will provide such changes in writing to the Contractor prior to the beginning of the applicable evaluation period. The Contractor may submit a voucher for the earned award fee. Available award fee not earned during one period does not carry over to subsequent periods.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate number of months.</E>
              </P>
              <P>** <E T="03">Contracting Officer shall insert appropriate date.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.216-71</SECTNO>
              <SUBJECT>Base Fee and Award Fee Proposal.</SUBJECT>
              <P>As prescribed in 416.470, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Base Fee and Award Proposal (FEB 1988)</HD>
                <P>For the purpose of this solicitation, offerors shall propose a base fee of ___* percent of the total estimated cost proposed. The award fee shall not exceed ___* percent of the total estimated cost.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate percentages.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.216-72</SECTNO>
              <SUBJECT>Evaluation Quantities—Indefinite-Delivery Contract.</SUBJECT>
              <P>As prescribed in 416.506(a), insert a provision substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Evaluation Quantities—Indefinite-Delivery Contract (FEB 1988)</HD>
                <P>To evaluate offers for award purposes, the Government will apply the offeror's proposed fixed-prices/rates to the estimated quantities included in the solicitation, and will add other direct costs if applicable.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.216-73</SECTNO>
              <SUBJECT>Minimum and Maximum Contract Amounts.</SUBJECT>
              <P>As prescribed in 416.506(b), insert the following clause:</P>
              <EXTRACT>
                <PRTPAGE P="149"/>
                <HD SOURCE="HD1">Minimum and Maximum Contract Amounts (FEB 1988)</HD>
                <P>During the period specified in FAR clause 52.216-18, ORDERING, the Government shall place orders totaling a minimum of ___*, but not in excess of ___*.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate quantity or dollar amounts.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.216-74</SECTNO>
              <SUBJECT>Ceiling Price.</SUBJECT>
              <P>As prescribed in 416.670, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Ceiling Price (FEB 1988)</HD>
                <P>The ceiling price of this contract is $___*. The Contractor shall not make expenditures or incur obligations in the performance of this contract which exceed the ceiling price specified herein, except at the Contractor's own risk.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>*<E T="03">Contracting Officer shall insert appropriate dollar amount.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.216-75</SECTNO>
              <SUBJECT>Letter Contract.</SUBJECT>
              <P>As prescribed in 416.603-4, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Letter Contract (FEB 1988)</HD>
                <P>This contract replaces letter contract No. ___* dated ___* and all amendments thereto.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert number and date.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.219-70</SECTNO>
              <SUBJECT>Size Standard and NAICS Code Information.</SUBJECT>
              <P>As prescribed in 419.508, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Size Standard and NAICS Code Information (SEP 2001)</HD>

                <P>The North American Industrial Classification System Code(s) and business size standard(s) describing the products and/or services to be acquired under this solicitation are listed below:
                </P>
                <FP>Contract line item(s): ___* NAICS Code ___* Size Standard ___*</FP>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>* <E T="03">Contracting Officer shall insert the appropriate data for each contract line item in the solicitation. The data entry line may be duplicated as required to describe all of the contract line items or sub-items.</E>
              </P>
              <CITA>[61 FR 53646, Oct. 15, 1996, as amended at 66 FR 49317, Sept. 27, 2001]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>452.224-70</SECTNO>
              <SUBJECT>Confidentiality of Information.</SUBJECT>
              <P>As prescribed in 424.104, insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Confidentiality of Information (FEB 1988)</HD>
                <P>(a) Confidential information, as used in this clause, means—</P>
                <P>(1) information or data of a personal nature, proprietary about an individual, or (2) information or data submitted by or pertaining to an organization.</P>
                <P>(b) In addition to the types of confidential information described in (a)(1) and (2) above, information which might require special consideration with regard to the timing of its disclosure may derive from studies or research, during which public disclosure of primarily invalidated findings could create an erroneous conclusion which might threaten public health or safety if acted upon.</P>
                <P>(c) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the Contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the “Disputes” clause.</P>
                <P>(d) If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.</P>
                <P>(e) Confidential information, as defined in (a)(1) and (2) above, shall not be disclosed without the prior written consent of the individual, institution or organization.</P>

                <P>(f) Written advance notice of at least 45 days will be provided to the Contracting Officer of the Contractor's intent to release findings of studies or research, which have the possibility of adverse effects on the public or the Federal agency, as described in (b) above. If the Contracting Officer does not pose any objections in writing within the 45 day period, the Contractor may proceed with disclosure. Disagreements not resolved by the Contractor and Contracting Officer will be settled pursuant to the “Disputes” clause.<PRTPAGE P="150"/>
                </P>
                <P>(g) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure, dissemination, or publication.</P>
                <P>(h) The provisions of paragraph (e) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.226-70—452.226-72</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>452.228-70</SECTNO>
              <SUBJECT>Alternative Forms of Security.</SUBJECT>
              <P>As prescribed in 428.204-2, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Alternative Forms of Security (NOV 1996)</HD>
                <P>If furnished as security, money orders, drafts, cashiers checks, or certified checks shall be drawn payable to: ___*.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <P>* <E T="03">Contracting Officer shall insert the name of the USDA contracting activity.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.228-71</SECTNO>
              <SUBJECT>Insurance Coverage.</SUBJECT>
              <P>As prescribed in 428.310, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Insurance Coverage (NOV 1996)</HD>
                <P>Pursuant to FAR clause 52.228-5, Insurance-Work on a Government Installation, the Contractor will be required to present evidence to show, as a minimum, the amounts of insurance coverage indicated below:</P>
                <P>(a) Workers Compensation and Employer's Liability. The Contractor is required to comply with applicable Federal and State workers' compensation and occupational disease statutes. If occupational diseases are not compensable under those statutes, they shall be covered under the employer's liability section of the insurance policy, except when contract operations are so commingled with a Contractor's commercial operations that it would not be practical to require this coverage. Employer's liability coverage of at least $100,000 shall be required, except in States with exclusive or monopolistic funds that do not permit worker's compensation to be written by private carriers.</P>
                <P>(b) General Liability. The Contractor shall have bodily injury liability insurance coverage written on a comprehensive form of policy of at least $500,000 per occurrence.</P>
                <P>(c) Automobile Liability. The Contractor shall have automobile liability insurance written on a comprehensive form of policy. The policy shall provide for bodily injury and property damage liability covering the operation of all automobiles used in connection with performing the contract. Policies covering automobiles operated in the United States shall provide coverage of at least $200,000 per person and $500,000 per occurrence for bodily injury and $20,000 per occurrence for property damage or loss.</P>
                <P>(d) Aircraft Public and Passenger Liability. When aircraft are used in connection with performing the contract, the Contractor shall have aircraft public and passenger liability insurance. Coverage shall be at least $200,000 per person and $500,000 per occurrence for bodily injury, other than passenger injury. Coverage for passenger injury shall be at least $200,000 multiplied by the number of seats or passengers, whichever is greater.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>
                <E T="03">Alternate I</E> (NOV 1996). As prescribed in 428.310, substitute the following paragraph (b), when additionally the contractor must have property damage liability coverage:
              </P>
              <EXTRACT>
                <P>(b) General Liability. (1) The Contractor shall have bodily injury liability coverage written on a comprehensive form of policy of at least $500,000 per occurrence.</P>
                <P>(2) The Contractor shall have property damage liability insurance shall be required in the amount of ___* per occurrence.</P>
              </EXTRACT>
              <P>* <E T="03">Contracting Officer shall insert amount required.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.232-70</SECTNO>
              <SUBJECT>Reimbursement for Bond Premiums—Fixed-Price Construction Contracts.</SUBJECT>
              <P>As prescribed in 432.111, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Reimbursement for Bond Premiums—Fixed-Price Construction Contracts (NOV 1996)</HD>
                <P>The Contract Price includes the total amount for premiums that the Contractor attributes to the furnishing of performance and payment bonds required by the contract. Reimbursement for bond premiums under the clause at FAR 52.232-5, Payments Under Fixed-Price Construction, shall not cover any amount therefor not included in the contract price.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, as amended at 70 FR 50, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="151"/>
              <SECTNO>452.236-70</SECTNO>
              <SUBJECT>Additive or Deductive Items.</SUBJECT>
              <P>As prescribed in 436.205, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Additive or Deductive Items (FEB 1988)</HD>
                <P>The low bidder for purposes of award shall be the conforming responsible bidder offering the low aggregate amount for the first or base bid item, plus or minus (in the order of priority listed in the schedule) those additive or deductive bid items providing the most features of the work within the funds determined by the government to be available before bids are opened. If addition of another bid item in the listed order of priority would make the award exceed such funds for all bidders, it shall be skipped and the next subsequent additive bid item in a lower amount shall be added if award therein can be made within such funds. For example, when the amount available is $100,000 and a bidder's base bid and four successive additives are $85,000, $10,000, $8,000, $6,000, and $4,000, the aggregate amount of the bid for purposes of award would be $99,000 for the base bid plus the first and fourth additives, the second and third additives being skipped because of each of them would cause the aggregate bid to exceed $100,000. In any case all bids shall be evaluated on the basis of the same additive or deductive bid items, determined as above provided. The listed order of priority need be followed only for determining the low bidder. After determination of the low bidder as stated, award in the best interests of the Government may be made on the selected first or base bid item and any combination of additive or deductive items for which funds are determined to be available at the time of the award, provided that award on such combination of bid items does not exceed the amount offered by any other conforming responsible bidder for the same combination of bid items.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-71</SECTNO>
              <SUBJECT>Prohibition Against the Use of Lead-Based Paint.</SUBJECT>
              <P>As prescribed in 436.571, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Prohibition Against the Use of Lead-Based Paint (NOV 1996)</HD>
                <P>Neither the Contractor nor any subcontractor performing under this contract shall use paints containing more then 0.06 of 1 percent lead by weight (calculated as lead metal) in the total nonvolatile content of the paint, or the equivalent measure of lead in the dried film of paint already applied, or both.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-72</SECTNO>
              <SUBJECT>Use of Premises.</SUBJECT>
              <P>As prescribed in 436.572, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Use of Premises (NOV 1996)</HD>
                <P>(a) Before any camp, quarry, borrow pit, storage, detour, or bypass site, other than shown on the drawings, is opened or operated on USDA land or lands administered by the USDA, the Contractor shall obtain written permission from the Contracting Officer. A camp is interpreted to include a campsite or trailer parking area of any employee working on the project for the Contractor.</P>
                <P>(b) Unless excepted elsewhere in the contract, the Contractor shall (i) provide and maintain sanitation facilities for the work force at the site and (ii) dispose of solid waste in accordance with applicable Federal, State and local regulations.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-73</SECTNO>
              <SUBJECT>Archaeological or Historic Sites.</SUBJECT>
              <P>As prescribed in 436.573, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Archaeological or Historic Sites (FEB 1988)</HD>
                <P>If a previously unidentified archaeological or historic site(s) is encountered, the Contractor shall discontinue work in the general area of the site(s) and notify the Contracting Officer immediately.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-74</SECTNO>
              <SUBJECT>Control of Erosion, Sedimentation, and Pollution.</SUBJECT>
              <P>As prescribed in 436.574, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Control of Erosion, Sedimentation, and Pollution (NOV 1996)</HD>
                <P>(a) Operations shall be scheduled and conducted to minimize erosion of soils and to prevent silting and muddying of streams, rivers, irrigation systems, and impoundments (lakes, reservoirs, etc.).</P>

                <P>(b) Pollutants such as fuels, lubricants, bitumens, raw sewage, and other harmful materials shall not be discharged on the ground; into or nearby rivers, streams, or impoundments; or into natural or man-made channels. Wash water or waste from concrete or aggregate operations shall not be allowed to enter live streams prior to treatment by filtration, settling, or other means sufficient to reduce the sediment content to not more than that of the stream into which it is discharged.<PRTPAGE P="152"/>
                </P>
                <P>(c) Mechanized equipment shall not be operated in flowing streams without written approval by the Contracting Officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-75</SECTNO>
              <SUBJECT>Maximum Workweek—Construction Schedule.</SUBJECT>
              <P>As prescribed in 436.575, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Maximum Workweek—Construction Schedule (NOV 1996)</HD>
                <P>Within __ calendar days after receipt of a written request from the Contracting Officer, the Contractor must submit the following in writing for approval:</P>
                <P>(a) A schedule as required by FAR clause 52.236-15, Schedules for Construction Contracts, and</P>
                <P>(b) The hours (including the daily starting and stopping times) and days of the week the Contractor proposes to carry out the work.</P>
                <P>The maximum workweek that will be approved is __*.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate number of days and hours and/or days.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-76</SECTNO>
              <SUBJECT>Samples and Certificates.</SUBJECT>
              <P>As prescribed in 436.576, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Samples and Certificates (FEB 1988)</HD>
                <P>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 with materials and construction specified in the contract performance requirements.</P>
                <P>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.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-77</SECTNO>
              <SUBJECT>Emergency Response.</SUBJECT>
              <P>As prescribed in 436.577, the following clause may be used in Forest Service construction contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Emergency Response (NOV 1996)</HD>
                <P>(a) <E T="03">Contractor's Responsibility for Fire Fighting.</E> (1) The Contractor, under the provisions of FAR clause 52.236-9, Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements, shall immediately extinguish all fires on the work site other than those fires in use as a part of the work.</P>
                <P>(2) The Contractor may be held liable for all damages and for all costs incurred by the Government for labor, subsistence, equipment, supplies, and transportation deemed necessary to control or suppress a fire set or caused by the Contractor or the Contractor's agents or employees.</P>
                <P>(b) <E T="03">Contractor's Responsibility for Notification in Case of Fire.</E> The Contractor shall immediately notify the Government of any fires sighted on or in the vicinity of the work site.</P>
                <P>(c) <E T="03">Contractor's Responsibility for Responding to Emergencies.</E> When directed by the Contracting Officer, the Contractor shall allow the Government to temporarily use employees and equipment from the work site for emergency work (anticipated to be restricted to fire fighting). An equitable adjustment for the temporary use of employees and equipment will be made under the Changes clause, FAR 52.243-4.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-78</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-79</SECTNO>
              <SUBJECT>Opted Timber Sale Road Requirements.</SUBJECT>
              <P>As prescribed in 436.579, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Opted Timber Sale Road Requirements (NOV 1996)</HD>
                <P>This contract is for the construction of timber sale road(s) which a timber purchaser has opted to have the Government construct. The Government is obligated to make these roads available to the timber purchaser by ___*. Failure to make these roads available by this date could result in Government liability for delay to the timber purchaser for which the Contractor might become liable should the Contractor fail to complete this contract within the specified and allowed contract time.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate date.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.236-80</SECTNO>
              <SUBJECT>Firms Ineligible for Award—Construction.</SUBJECT>
              <P>As prescribed in 436.670, insert the following clause:</P>
              <EXTRACT>
                <PRTPAGE P="153"/>
                <HD SOURCE="HD1">Firms Ineligible for Award—Construction (NOV 1996)</HD>
                <P>The firm(s) and its subsidiaries or affiliates signatory to this contract shall be ineligible for award of any construction contract resulting from the design work performed under this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.237-70</SECTNO>
              <SUBJECT>Loss, Damage, Destruction or Repair.</SUBJECT>
              <P>(a) As prescribed in 437.110(a), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Loss, Damage, Destruction or Repair (FEB 1988)</HD>
                <P>(a) For equipment furnished under this contract without operator, the Government will assume liability for any loss, damage or destruction of such equipment, not to exceed a total of $___* except that no reimbursement will be made for loss, damage or destruction due to (1) ordinary wear or tear, (2) mechanical failure, or (3) the fault or negligence of the Contractor or the Contractor's agents or employees.</P>
                <P>(b) For equipment furnished under this contract with operator, the Government shall not be liable for any loss, damage or destruction of such equipment, except for loss, damage or destruction resulting from the negligent or wrongful act(s) of Government employee(s) while acting within the scope of their employment.</P>
                <P>(c) All repairs to equipment furnished under this contract shall be made by the Contractor and reimbursement, if any, shall be determined in accordance with (a) or (b) above. Repairs shall be made promptly and equipment returned to use within ___** hours. In lieu of repairing equipment, the Contractor may furnish similar replacement equipment within the time specified. The Contractor may authorize the Government to make repairs upon the request of the Contracting Officer. In such case, the Contractor will be billed for labor and parts costs.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert amount available in current funds to cover potential liability.</E>
              </P>
              <P>** <E T="03">Contracting Officer shall insert appropriate number of hours.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.237-71</SECTNO>
              <SUBJECT>Pre-Bid/Pre-Proposal Conference.</SUBJECT>
              <P>As prescribed in 437.110(b), insert a provision substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Pre-Bid/Pre-Proposal Conference (FEB 1988)</HD>
                <P>(a) The Government is planning a pre-bid/pre-proposal conference, during which potential offerors may obtain a better understanding of the work required.</P>
                <P>(b) Offerors are encouraged to submit all questions in writing at least five (5) days prior to the conference. Questions will be considered at any time prior to or during the conference; however, offerors will be asked to confirm verbal questions in writing. Subsequent to the conference, an amendment to the solicitation containing an abstract of the questions and answers, and a list of attendees, will be disseminated.</P>
                <P>(c) In order to facilitate conference preparations, it is requested that the person named on the Standard Form 33 of this solicitation be contacted and advised of the number of persons who will attend.</P>
                <P>(d) The Government assumes no responsibility for any expense incurred by an offeror prior to contract award.</P>
                <P>(e) Offerors are cautioned that, notwithstanding any remarks or clarifications given at the conference, all terms and conditions of the solicitation remain unchanged unless they are changed by amendment to the solicitation. If the answers to conference questions, or any solicitation amendment, create ambiguities, it is the responsibility of the offeror to seek clarification prior to submitting an offer.</P>
                <P>(f) The conference will be held:
                </P>
                <FP SOURCE="FP-DASH">Date:</FP>
                <FP SOURCE="FP-DASH">Time:</FP>
                <FP SOURCE="FP-DASH">Location:</FP>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.237-73</SECTNO>
              <SUBJECT>Equipment Inspection Visit.</SUBJECT>
              <P>As prescribed in 437.110(c), insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Equipment Inspection Visit (FEB 1988)</HD>
                <P>Offerors are urged and expected to inspect the equipment on which maintenance or repairs are to be performed and to satisfy themselves regarding all conditions that may affect the cost of contract performance, to the extent that the information is reasonably obtainable. In no event shall failure to inspect the equipment constitute grounds for a claim after contract award.</P>
                <P>Offerors are invited to inspect the ___* at ___* by telephoning ___* on ___* for an appointment.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate data.</E>
              </P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="154"/>
              <SECTNO>452.237-74</SECTNO>
              <SUBJECT>Key Personnel.</SUBJECT>
              <P>As prescribed in 437.110(d), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Key Personnel (FEB 1988)</HD>
                <P>(a) The Contractor shall assign to this contract the following key personnel: _____</P>
                <P>(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) below. 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.</P>
                <P>(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. The contract will be modified to reflect any approved changes of key personnel.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.237-75</SECTNO>
              <SUBJECT>Restrictions Against Disclosure.</SUBJECT>
              <P>As prescribed in 437.110(e), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Restrictions Against Disclosure (FEB 1988)</HD>

                <P>(a) The Contractor agrees, in the performance of this contract, to keep all information contained in source documents or other media furnished by the Government in the strictest confidence. The Contractor also agrees not to publish or otherwise divulge such information in whole or in part in any manner or form, or to authorize or permit others to do so, taking such reasonable measures as are necessary to restrict access to such information while in the Contractor's possession, to those employees needing such information to perform the work provided herein, <E T="03">i.e.,</E> on a “need to know” basis. The Contractor agrees to immediately notify in writing, the Contracting Officer, named herein, in the event that the Contractor determines or has reason to suspect a breach of this requirement.</P>
                <P>(b) The Contractor agrees not to disclose any information concerning the work under this contract to any persons or individual unless prior written approval is obtained from the Contracting Officer. The Contractor agrees to insert the substance of this clause in any consultant agreement or subcontract hereunder.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.237-76</SECTNO>
              <SUBJECT>Progress Reporting.</SUBJECT>
              <P>As prescribed in 437.270(a), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Progress Reporting (FEB 1988)</HD>
                <P>The Contractor shall submit a progress report ___*, covering work accomplished during that period of the contract performance. The progress report shall be brief and factual and shall be prepared in accordance with the following format:</P>
                <P>(a) A cover page containing:</P>
                <P>(1) Contract number and title;</P>
                <P>(2) Type of report, sequence number of report, and period of performance being reported;</P>
                <P>(3) Contractor's name and address;</P>
                <P>(4) Author(s); and</P>
                <P>(5) Date of report.</P>
                <P>(b) Section I—An introduction covering the purpose and scope of the contract effort. This shall be limited to one paragraph in all but the first and final month's narrative.</P>
                <P>(c) Section II—A description of overall progress plus a separate description of each task or other logical segment of work on which effort was expended during the report period. The description shall include pertinent data and/or graphs in sufficient detail to explain any significant results achieved.</P>
                <P>(d) Section III—A description of current technical or substantive performance, and any problem(s) which may impede performance along with proposed corrective action.</P>
                <P>(e) Section IV—A planning schedule shall be included with the first progress report for all assigned tasks required under the contract, along with the estimated starting and completion dates for each task. The planning schedule shall be updated and submitted with each subsequent technical progress report, including an explanation of any difference between actual progress and planned progress, why the differences have occurred, and—if behind planned progress—what corrective steps are planned.</P>
                <P>(f) Section V—If applicable, financial information shall be submitted for each major task or line item cost.</P>
                <P>Data shall include:</P>
                <P>(1) The total estimated cost budgeted (fee excluded).</P>

                <P>(2) The estimated cost expended during the current reporting period.<PRTPAGE P="155"/>
                </P>
                <P>(3) Identification of direct labor hours of prime contractor and subcontractor(s) and/or consultant(s), if applicable.</P>
                <P>(4) Total project to-date expenditures.</P>
                <P>(5) Total remaining funds.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert frequency of reporting requirement.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.237-78</SECTNO>
              <SUBJECT>Contracts with Consulting Firms for Services.</SUBJECT>
              <P>As prescribed in 437.270(b), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Contracts with Consulting Firms for Services (FEB 1988)</HD>
                <P>Offerors are specifically cautioned that any firm(s) receiving a contract award to provide the services described herein will be prohibited from competing for or receiving a follow-on contract to perform ___.*</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert the appropriate information.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.246-70</SECTNO>
              <SUBJECT>Inspection and Acceptance.</SUBJECT>
              <P>As prescribed in 446.370, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Inspection and Acceptance (FEB 1988)</HD>
                <P>(a) The Contracting Officer or the Contracting Officer's duly authorized representative will inspect and accept the supplies and/or services to be provided under this contract.</P>
                <P>(b) Inspection and acceptance will be performed at: ___.*</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate identifying data.</E>
              </P>
              <P>
                <E T="03">Alternate I</E> (FEB 1988). As prescribed in 446.370, substitute a paragraph (b) and add a paragraph (c):
              </P>
              <EXTRACT>
                <P>(b) Inspection will be performed at: ___.*</P>
                <P>(c) Acceptance will be performed at: ___.*</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.247-70</SECTNO>
              <SUBJECT>Delivery Location.</SUBJECT>
              <P>As prescribed in 447.302, insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Delivery Location (FEB 1988)</HD>
                <P>Shipment of deliverable items, other than reports, shall be to: ___.*</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert appropriate identifying data.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.247-71</SECTNO>
              <SUBJECT>Marking Deliverables.</SUBJECT>
              <P>As prescribed in 447.305-10(a), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Marking Deliverables (FEB 1988)</HD>
                <P>(a) The contract number shall be placed on or adjacent to all exterior mailing or shipping labels of deliverable items called for by the contract.</P>
                <P>(b) Mark deliverables, except reports, for: ___.*</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <P>* <E T="03">Contracting Officer shall insert the appropriate information.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>452.247-72</SECTNO>
              <SUBJECT>Packing for Domestic Shipment.</SUBJECT>
              <P>As prescribed in 447.305-10(b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Packing for Domestic Shipment (FEB 1988)</HD>
                <P>Material shall be packed for shipment in such a manner that will insure acceptance by common carriers and safe delivery at destination. Containers and closures shall comply with the Interstate Commerce Commission regulations, Uniform Freight Classification Rules, or regulations of other carriers as applicable to the mode of transportation.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>452.247-73</SECTNO>
              <SUBJECT>Packing for Overseas Shipment.</SUBJECT>
              <P>As prescribed in 447.305-10(c), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Packing for Overseas Shipment (FEB 1988)</HD>
                <P>Supplies shall be packed for overseas shipment in accordance with the best commercial export practice suitable for water movement to arrive undamaged at ultimate destination.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 453</EAR>
          <HD SOURCE="HED">PART 453—FORMS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>453.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 453.1—General</HD>
              <SECTNO>453.103</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>453.108</SECTNO>
              <SUBJECT>Recommendations concerning forms.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="156"/>
              <HD SOURCE="HED">Subpart 453.2—Prescription of Forms</HD>
              <SECTNO>453.200</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>453.213</SECTNO>
              <SUBJECT>Simplified Acquisition and other simplified purchase procedures (AD-838).</SUBJECT>
              <SECTNO>453.270</SECTNO>
              <SUBJECT>Request for contract action (AD-700).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 453.3—Illustrations of Forms</HD>
              <SECTNO>453.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>453.303</SECTNO>
              <SUBJECT>Agency forms.</SUBJECT>
              <SECTNO>453.303-700</SECTNO>
              <SUBJECT>Procurement Request (AD-700).</SUBJECT>
              <SECTNO>453.303-838</SECTNO>
              <SUBJECT>Purchase Order (AD-838).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301 and 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>61 FR 53646, Oct. 15, 1996, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>453.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part:</P>
            <P>(a) Prescribes USDA (AD) forms for use in acquisition,</P>
            <P>(b) Contains requirements and information generally applicable to AD forms and forms prescribed by FAR part 53, and</P>
            <P>(c) Illustrates AD forms.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 453.1—General</HD>
            <SECTION>
              <SECTNO>453.103</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>(a) The contracting officer shall submit a request for exceptions to forms prescribed in FAR part 53 through the head of the contracting activity (HCA) to the Senior Procurement Executive (SPE) for referral to the GSA.</P>
              <P>(b) Requests for exceptions to AD forms prescribed in part 453 shall be handled as individual or class deviations, as appropriate (see subpart 401.4).</P>
            </SECTION>
            <SECTION>
              <SECTNO>453.108</SECTNO>
              <SUBJECT>Recommendations concerning forms.</SUBJECT>
              <P>Contracting officers shall submit recommendations for new forms or to revise, eliminate, or consolidate forms prescribed by FAR part 53 and part 453 through the HCA to the SPE.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 453.2—Prescription of Forms</HD>
            <SECTION>
              <SECTNO>453.200</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes USDA (AD) forms for use in acquisition. Consistent with the approach used in FAR subpart 53.2, this subpart is arranged by subject matter, in the same order as, and keyed to, the parts of the AGAR in which the form usage requirements are addressed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>453.213</SECTNO>
              <SUBJECT>Simplified Acquisition and other simplified purchase procedures (AD-838).</SUBJECT>
              <P>Form AD-838, <E T="03">Purchase Order,</E> is prescribed for use as a Simplified Acquisition Procedure/delivery order/task order document in lieu of OF 347 and OF 348, except that use of the OF 347 and OF 348 is authorized when utilizing the USDA Integrated Acquisition System (See 413.307).</P>
              <CITA>[70 FR 50, Jan. 3, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>453.270</SECTNO>
              <SUBJECT>Request for contract action (AD-700).</SUBJECT>
              <P>Form AD-700, <E T="03">Procurement Request,</E> may be used as a contract requisition document by contracting activities in USDA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 453.3—Illustrations of Forms</HD>
            <SECTION>
              <SECTNO>453.300</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>

              <P>This subpart contains illustrations of USDA (AD) forms for use in acquisitions. Forms are not illustrated in the <E T="04">Federal Register</E> or Code of Federal Regulations. Individual copies may be obtained from any USDA contracting activity or the office of the SPE.</P>
            </SECTION>
            <SECTION>
              <SECTNO>453.303</SECTNO>
              <SUBJECT>Agency forms.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>453.303-700</SECTNO>
              <SUBJECT>Procurement Request (AD-700).</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>453.303-838</SECTNO>
              <SUBJECT>Purchase Order (AD-838).</SUBJECT>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 5 (10-1-05 Edition)</LRH>
      <RRH>General Services Administration</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="157"/>
          <HD SOURCE="HED">CHAPTER 5—GENERAL SERVICES ADMINISTRATION</HD>
          <P>(Parts 500 to 599)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>501</PT>
          <SUBJECT>General Services Administration Acquisition Regulation System</SUBJECT>
          <PG>159</PG>
          <PT>502</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>161</PG>
          <PT>503</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>162</PG>
          <PT>504</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>164</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>505</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>167</PG>
          <PT>509</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>168</PG>
          <PT>511</PT>
          <SUBJECT>Describing agency needs</SUBJECT>
          <PG>172</PG>
          <PT>512</PT>
          <SUBJECT>Acquisition of commercial items</SUBJECT>
          <PG>176</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>513</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>177</PG>
          <PT>514</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>177</PG>
          <PT>515</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>183</PG>
          <PT>516</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>189</PG>
          <PT>517</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>190</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>519</PT>
          <SUBJECT>Small business programs</SUBJECT>
          <PG>193</PG>
          <PT>522</PT>
          <SUBJECT>Application of labor laws to Government acquisitions</SUBJECT>
          <PG>194</PG>
          <PT>523</PT>
          <SUBJECT>Environment, conservation, occupational safety and drug-free workplace</SUBJECT>
          <PG>195</PG>
          <PT>525</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>195</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>527</PT>
          <SUBJECT>Patents, data, and copyrights</SUBJECT>
          <PG>197<PRTPAGE P="158"/>
          </PG>
          <PT>528</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>197</PG>
          <PT>529</PT>
          <SUBJECT>Taxes</SUBJECT>
          <PG>197</PG>
          <PT>532</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>198</PG>
          <PT>533</PT>
          <SUBJECT>Protests, disputes, and appeals</SUBJECT>
          <PG>202</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>536</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>203</PG>
          <PT>537</PT>
          <SUBJECT>Service contracting</SUBJECT>
          <PG>207</PG>
          <PT>538</PT>
          <SUBJECT>Federal supply schedule contracting</SUBJECT>
          <PG>208</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>542</PT>
          <SUBJECT>Contract administration and audit services</SUBJECT>
          <PG>212</PG>
          <PT>543</PT>
          <SUBJECT>Contract modifications</SUBJECT>
          <PG>212</PG>
          <PT>546</PT>
          <SUBJECT>Quality assurance</SUBJECT>
          <PG>213</PG>
          <PT>547</PT>
          <SUBJECT>Transportation</SUBJECT>
          <PG>214</PG>
          <PT>549</PT>
          <SUBJECT>Termination of contracts</SUBJECT>
          <PG>215</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>552</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>216</PG>
          <PT>553</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>284</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER I—SPECIAL CONTRACTING PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>570</PT>
          <SUBJECT>Acquiring leasehold interests in real property</SUBJECT>
          <PG>285</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="159"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 501</EAR>
          <HD SOURCE="HED">PART 501—GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 501.1—Purpose, Authority, Issuance</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>501.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>501.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>501.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>501.105</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
              <SECTNO>501.105-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <SECTNO>501.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <SECTNO>501.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <SECTNO>501.106</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 501.4—Deviations From the FAR and GSAR</HD>
              <SECTNO>501.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>501.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>501.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <SECTNO>501.404-70</SECTNO>
              <SUBJECT>Contract action.</SUBJECT>
              <SECTNO>501.404-71</SECTNO>
              <SUBJECT>Deviations to the nonregulatory GSAM.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 121(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37203, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 501.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>501.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) The General Services Acquisition Regulation (GSAR) contains agency acquisition policies and practices, contract clauses, solicitation provisions, and forms that control the relationship between GSA and contractors and prospective contractors.</P>
              <P>(b) GSAR address rules directly to you, the contracting officer, unless otherwise indicated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>501.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>GSA's Senior Procurement Executive issues the GSAR under the authority of the Federal Property and Administrative Services Act of 1949, as amended.</P>
            </SECTION>
            <SECTION>
              <SECTNO>501.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>(a) <E T="03">General.</E> The GSAR applies to contracts for suppliers or services, including construction.</P>
              <P>(b) <E T="03">Acquisition of leasehold interests in real property.</E> Part 570 establishes rules for the acquisition of leasehold interests in real property. Other provisions of 48 CFR chapter 5 (GSAR) do not apply to leases of real property unless specifically cross-reference in part 570.</P>
              <P>(c) <E T="03">Relationship to state.</E> Some GSAR rules implement and interpret laws and other authorities affecting procurement. A GSAR rule specifically directed by statute has the force and effect of law.</P>
              <P>(d) <E T="03">GSAR/FAR Relationship.</E> The GSAR may deviate from the Federal Acquisition Regulation (FAR) if authorized. If the GSAR does not implement the FAR, the FAR alone governs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>501.105</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>501.105-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <P>The GSAR is published in the following sources:</P>
              <P>(a) Daily issue of the <E T="04">Federal Register.</E>
              </P>
              <P>(b) Annual Code of Federal Regulations (CFR), as Chapter 5 of Title 48.</P>
              <P>(c) GSA Acquisition Manual distributed within GSA.</P>
              <P>(d) GSA Home Page at http://www/gas.gov. Click on either “Government Agencies” or on “Business and Industry,” the click on “Acquisition.”</P>
            </SECTION>
            <SECTION>
              <SECTNO>501.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <P>(a) The GSAR numbers and captions policies and procedures to correspond to how they appear in the FAR, e.g., 1.104 in the FAR is 501.104 in the GSAR.</P>
              <P>(b) GSAR rules not implementing the FAR have numbers beginning with 70, e.g., part 570, subsection 515.209-70.</P>
              <P>(c) The GSAR may have gaps in its numbering scheme because a FAR rule may not require GSAR implementation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>501.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <P>The GSAR in CFR form may be purchased from: Superintendent of Documents, Government Printing Office, Washington, DC 20402.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="160"/>
              <SECTNO>501.106</SECTNO>
              <SUBJECT>OMB approval under the Paperwork Reduction Act.</SUBJECT>
              <GPOTABLE CDEF="s50,xls40" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">GSAR Reference</CHED>
                  <CHED H="1">OMB Control No.</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">509.105-1(a)</ENT>
                  <ENT>3090-0007</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">511.140-70</ENT>
                  <ENT>3090-0203</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">511.204(d)</ENT>
                  <ENT>3090-0246</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">511.404(a)(1)</ENT>
                  <ENT>3090-0204</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">511.404(a)(2)</ENT>
                  <ENT>3090-0204</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">511.404(a)(5)</ENT>
                  <ENT>3090-0204</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">514.201-7(a)</ENT>
                  <ENT>3090-0200</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">516.203-4(a)(1)</ENT>
                  <ENT>3090-0243</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">516.506</ENT>
                  <ENT>3090-0248</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">519.708(b)</ENT>
                  <ENT>3090-0252</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">522.406-6</ENT>
                  <ENT>1215-0149</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">523.370</ENT>
                  <ENT>3090-0205</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">532.111(c)</ENT>
                  <ENT>3090-0080</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">532.905-70</ENT>
                  <ENT>9000-0102</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">532.905-71</ENT>
                  <ENT>3090-0080</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">537.110(a)</ENT>
                  <ENT>3090-0197</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">537.110(b)</ENT>
                  <ENT>3090-0006</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">538.273(a)(1)</ENT>
                  <ENT>3090-0250</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">538.273(a)(3)</ENT>
                  <ENT>3090-0262</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">538.273(b)(1)</ENT>
                  <ENT>3090-0121</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">542.1107</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">546.307-70</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">546.302-71</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">549.502(b)</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.211-8</ENT>
                  <ENT>3090-0204</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.211-77</ENT>
                  <ENT>3090-0246</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.211-78</ENT>
                  <ENT>3090-0204</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.211-82</ENT>
                  <ENT>3090-0204</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.214-71</ENT>
                  <ENT>3090-0200</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.216-70</ENT>
                  <ENT>3090-0243</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.216-72</ENT>
                  <ENT>3090-0248</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.216-73</ENT>
                  <ENT>3090-0248</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.219-72</ENT>
                  <ENT>3090-0252</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.223-72</ENT>
                  <ENT>3090-0205</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.232-72</ENT>
                  <ENT>3090-0080</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.237-70</ENT>
                  <ENT>3090-0197</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.237-71</ENT>
                  <ENT>3090-0006</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.238-70</ENT>
                  <ENT>3090-0250</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.238-72</ENT>
                  <ENT>3090-0262</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.238-74</ENT>
                  <ENT>3090-0121, 3090-0250</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.242-70</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.246-70</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.246-71</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">552.249-71</ENT>
                  <ENT>3090-0227</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-72-A</ENT>
                  <ENT>3090-0121</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-527</ENT>
                  <ENT>3090-0007</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-618-D</ENT>
                  <ENT>1215-0149</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-1142</ENT>
                  <ENT>3090-0080</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-1364</ENT>
                  <ENT>3090-0086</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-1678</ENT>
                  <ENT>3090-0027</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">GSA-2419</ENT>
                  <ENT>9000-0102</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">570.702(c)</ENT>
                  <ENT>3090-0086</ENT>
                </ROW>
              </GPOTABLE>
              <CITA>[64 FR 37203, July 9, 1999, as amended at 65 FR 41378, July 5, 2000; 68 FR 41288, July 11, 2003]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 501.4—Deviations From the FAR and GSAR</HD>
            <SECTION>
              <SECTNO>501.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Uniformity is a goal of GSA's Acquisition Regulation System. Despite this desire for uniformity, a contracting activity may take any of the following actions:</P>
              <P>(a) Develop and test new procedures and techniques.</P>
              <P>(b) Adopt alternate procedures in the public interest for unique programmatic or managerial requirements</P>
              <P>(c) Deviate from a regulatory provision implementing a statutory requirement provided the deviation does not violate the underlying statute. Deviations must not be used to defeat the FAR and GSAR approval requirements.</P>
            </SECTION>
            <SECTION>
              <SECTNO>501.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <P>(a) An individual deviation affects only one contract action.</P>
              <P>(1) The Head of the Contracting Activity (HCA) must approve an individual deviation to the FAR. The authority to grant an individual deviation may not be re-delegated. A copy of the deviation must be provided to GSA's Senior Procurement Executive (SPE).</P>
              <P>(2) An individual deviation to the GSAR must be approved by the HCA. The authority to grant an individual deviation may be re-delegated to the Contracting Director.</P>
              <P>(b) If GSA delegates authority to another agency and requires compliance with the GSAR as a condition of the delegation, the Contracting Director in the agency receiving the delegation may approve individual deviations from the GSAR unless the agency head receiving the delegation designates another official.</P>
              <P>(c) Send a copy of each deviation to GSA's SPE (V).</P>
              <CITA>[64 FR 37203, July 9, 1999, as amended at 70 FR 15779, Mar. 29, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>501.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>(a) A class deviation affects more than one contract action. A deviation for any solicitation that will result in multiple awards or any solicitation under the multiple award Federal Supply Schedule program is considered to be a class deviation. Each award under such a solicitation is considered an individual contract action.</P>

              <P>(1) A class deviation to the FAR must be forwarded by the cognizant HCA to GSA's SPE for approval. Prior to approving a class deviation to the FAR, <PRTPAGE P="161"/>the SPE will consult with the Chairman of the Civilian Agency Acquisition Council (CAAC) in accordance with FAR 1.404(a)(1).</P>
              <P>(2) A class deviation to the GSAR must be forwarded by the cognizant HCA to GSA's SPE for approval.</P>
              <P>(3) When an HCA knows that a proposed class deviation will be required on a permanent basis, the HCA should propose or recommend an appropriate FAR and/or GSAR revision.</P>
              <P>(b) If GSA delegates authority to another agency and requires compliance with the GSAR as a condition of the delegation, the HCA in the agency receiving the delegation may approve class deviations from the GSAR unless the agency head receiving the delegation designates another official.</P>
              <P>(c) Send a copy of each deviation to GSA's SPE (V).</P>
              <P>(d) A request for class deviations must be supported by statements that fully describe the need for and the nature of the deviation.</P>
              <P>(e) Class deviations from the GSAR:</P>
              <P>(1) Expire in 12 months if not extended.</P>
              <P>(2) May be rescinded earlier by GSA's SPE or by officials designated under paragraph (a) of this section without prejudice to any action taken previously.</P>
              <CITA>[64 FR 37203, July 9, 1999, as amended at 70 FR 15780, Mar. 29, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>501.404-70</SECTNO>
              <SUBJECT>Contract action.</SUBJECT>
              <P>
                <E T="03">Contract action</E>. A contract action, for the purpose of determining whether an individual or class deviation is appropriate, has the same meaning as that used for reporting contract actions to Federal Procurement Data System—Next Generation (FPDS-NG). A contract action includes, but is not limited to, any of the following:</P>
              <P>(a) Initial letter contract.</P>
              <P>(b) Definitive contract superseding letter contract.</P>
              <P>(c) New definitive contract.</P>
              <P>(d) Purchase order/BPA calls using simplified acquisition procedures.</P>
              <P>(e) Orders under single award indefinite delivery contracts.</P>
              <P>(f) Orders under BOA.</P>
              <P>(g) Order/modification under Federal schedule contract.</P>
              <P>(h) Modification.</P>
              <P>(i) Termination for Default.</P>
              <P>(j) Termination for Convenience.</P>
              <P>(k) Order under multiple award contract.</P>
              <P>(l) Initial load of Federal schedule contract.</P>
              <CITA>[70 FR 15780, Mar. 29, 2005]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>501.404-71</SECTNO>
              <SUBJECT>Deviations to the nonregulatory GSAM.</SUBJECT>
              <P>Handle individual and class deviations to the nonregulatory (unshaded) part of the GSAM as stated in 501.403 and 501.404.</P>
              <CITA>[70 FR 15780, Mar. 29, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 502</EAR>
          <HD SOURCE="HED">PART 502—DEFINITIONS OF WORDS AND TERMS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37204, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 502.1—Definitions</HD>
            <SECTION>
              <SECTNO>502.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Agency competition advocate</E> means the GSA Competition Advocate in the Office of Acquisition Policy.</P>
              <P>
                <E T="03">Assigned counsel</E> means the attorney employed by the Office of General Counsel (including offices of Regional Counsel) assigned to provide legal review or assistance.</P>
              <P>
                <E T="03">Contracting activity competition advocate</E> means the individual designated in writing by the head of the contracting activity (HCA). This authority may not be redelegated. The HCA must ensure that the designated competition advocate is not assigned any duty or responsibility that is inconsistent with the advocacy function. The identity of the designated official shall be communicated to procuring staff and the Senior Procurement Executive.</P>
              <P>
                <E T="03">Contracting director</E> means:</P>
              <P>(a) Except in FSS, a director of a Central Office or Regional office Division responsible for performing contracting or contract administration functions.</P>

              <P>(b) In FSS, a director of a Commodity Center or FSS Bureau.<PRTPAGE P="162"/>
              </P>
              <P>
                <E T="03">Contracting officer's representative (COR), contracting officer's technical representative (COTR), or contract administrator</E> means a Government employee designated in writing by the contracting officer to perform specific limited activities for the contracting officer, such as contract administration.</P>
              <P>
                <E T="03">Debarring official</E> or <E T="03">suspending official</E> means the Senior Procurement Executive or a designee.</P>
              <P>
                <E T="03">Head of the contracting activity</E> means the Deputy Associate Administrator for Acquisition Policy (MV); Commissioners of the Federal Technology Service (FTS); Federal Supply Service (FSS), or Public Buildings Service (PBS); or Regional Administrators. The Deputy Associate Administrator for Acquisition Policy serves as the HCA for Central Office contracting activities outside of FTS, FSS, and PBS.</P>
              <P>
                <E T="03">Senior procurement executive</E> means the Deputy Associate Administrator for Acquisition Policy.</P>
              <P>
                <E T="03">Senior program official</E> means a person reporting to, and designated by, the HCA to have overall program responsibility for determining how the agency will meet its need. The official should have a position of authority over the participating offices. Examples include Assistant Regional Administrators or Deputy Commissioners.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 503</EAR>
          <HD SOURCE="HED">PART 503—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 503.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>503.104</SECTNO>
              <SUBJECT>Procurement integrity.</SUBJECT>
              <SECTNO>503.104-3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>503.104-9</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 503.2—Contractor Gratuities to Government Personnel</HD>
              <SECTNO>503.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 503.4—Contingent Fees</HD>
              <SECTNO>503.404</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 503.5—Other Improper Business Practices</HD>
              <SECTNO>503.570</SECTNO>
              <SUBJECT>Advertising.</SUBJECT>
              <SECTNO>503.570-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>503.570-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 503.7—Voiding and Rescinding Contracts</HD>
              <SECTNO>503.702</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>503.705</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>At 64 FR 37204, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 503.1—Safeguards</HD>
            <SECTION>
              <SECTNO>503.104</SECTNO>
              <SUBJECT>Procurement integrity.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>503.104-3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Federal agency procurement</E> as used in FAR 3.104 and in this section, also means acquisitions of leasehold interests in real property.</P>
            </SECTION>
            <SECTION>
              <SECTNO>503.104-9</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <HD SOURCE="HD2">Acquisitions of Leasehold Interests in Real Property</HD>
              <P>Insert a clause substantially the same as the clause at 552.203-70, Price Adjustment for Illegal or Improper Activity, in solicitations and contracts for and modifications to leasehold interests in real property exceeding $100,000.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 503.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>503.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
              <P>(a) The Senior Procurement Executive, or designee, makes determinations under FAR 3.204.</P>
              <P>The Senior Procurement Executive, or designee, takes all the following actions:</P>
              <P>(1) Coordinates with legal counsel.</P>
              <P>(2) Initiates proceedings under FAR 3.204(a) by notifying the contractor that GSA is considering action against the contractor for a violation of the Gratuities clause. Notice is sent by a certified letter to the last known address of the party, its counsel, or agent for service of process. In the case of a business, notice is sent to any partner, principal officer, director, owner or co-owner, or joint venture.</P>

              <P>(3) Presumes receipt if no return receipt is received within 10 calendar days after mailing the notice.<PRTPAGE P="163"/>
              </P>
              <P>(b) The contractor has 30 calendar days to exercise its rights under FAR 3.204(b), unless the Senior Procurement Executive, or designee, grants an extension.</P>
              <P>(c) If there is a dispute of fact material to making a determination, the Senior Procurement Executive, or designee, may refer the matter to an agency fact-finding official designated by the Chairman of the GSA Board of Contract Appeals. Referrals for fact-finding are not made in cases arising from a conviction or indictment as defined in FAR 9.403. If a referral is made, the fact-finding official takes all the following actions:</P>
              <P>(1) Gives the contractor an opportunity to dispute material facts relating to the determinations under FAR 3.204(a)(1) and (2).</P>
              <P>(2) Conducts proceedings under rules consistent with FAR 3.204(b).</P>
              <P>(3) Schedules a hearing within 20 calendar days of receipt of the referral. The contractor or GSA may request an extension for good cause.</P>
              <P>(4) Delivers to the Senior Procurement Executive, or designee, written findings of fact (together with a transcription of the proceedings, if made) within 20 calendar days after the hearing record closes. The findings must resolve any material disputes of fact by a preponderance of the evidence.</P>
              <P>(d) The Senior Procurement Executive, or designee, may reject the findings of the fact-finding official only if the findings are clearly erroneous or arbitrary and capricious.</P>
              <P>(e) In cases arising from conviction or indictment, or in which there are no disputes of material fact, the Senior Procurement Executive, or designee, conducts the hearing required by FAR 3.204(b).</P>
              <P>(f) If the Gratuities clause was violated, the contractor may present evidence of mitigating factors to the Senior Procurement Executive, or designee, either orally or in writing, in accordance with a schedule the Senior Procurement Executive, or designee, establishes. The Senior Procurement Executive, or designee, exercises the Government's rights under FAR 3.204(c) only after considering mitigating factors.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 503.4—Contingent Fees</HD>
            <SECTION>
              <SECTNO>503.404</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert 552.203-5, Covenant Against Contingent Fees, in solicitations and contracts for the acquisition of leasehold interests in real property expected to exceed $100,000.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 503.5—Other Improper Business Practices</HD>
            <SECTION>
              <SECTNO>503.570</SECTNO>
              <SUBJECT>Advertising.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>503.570-1</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>GSA policy precludes contractors from referring to GSA contracts in commercial advertising in a manner that states or implies the Government approves or endorses the product or service or considers it superior to other products or services. The intent of this policy is to prevent the appearance of Government bias toward any product or service.</P>
            </SECTION>
            <SECTION>
              <SECTNO>503.570-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert the clause at 552.203-71, Restriction on Advertising, in solicitations and contracts, including acquisitions of leasehold interests in real property, if the contract amount is expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 503.7—Voiding and Rescinding Contracts</HD>
            <SECTION>
              <SECTNO>503.702</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>
                <E T="03">Notice</E> means a letter sent by certified mail with a return receipt requested to the last known address of a party, its counsel, or agent for service of process. In the case of a business, such notice may be sent to any partner, principal officer, director, owner or co-owner, or joint venturer. If no return receipt is received within 10 calendar days of mailing, receipt is presumed.</P>
              <P>
                <E T="03">Voiding and rescinding official</E> means the Senior Procurement Executive or designee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>503.705</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Contracting officer's actions:</E>
              </P>

              <P>(1) If a contract is tainted by misconduct, consult with assigned counsel <PRTPAGE P="164"/>to determine if the Government has a common law remedy such as avoidance, rescission, or cancellation.</P>
              <P>(2) If the contractor has a final conviction for a violation under 18 U.S.C. 201-224, you may refer the matter to the voiding and rescinding official under FAR 3.705.</P>
              <P>(i) In the referral, identify the final conviction and include the information required by FAR 3.705(d)(2) through (5).</P>
              <P>(ii) Coordinate the referral with the Office of Inspector General to determine whether to recommend debarment.</P>
              <P>(3) You may postpone a decision to exercise the Government's common law right to void, rescind, or cancel a contract until completion of legal proceedings against the contractor.</P>
              <P>(b) <E T="03">Voiding and rescinding official's actions:</E>
              </P>
              <P>(1) The voiding and rescinding official reviews the referral and coordinates with assigned counsel and the contracting activity.</P>
              <P>(2) If the official decides to declare void and rescind a contract and to recover the amounts expended and the property transferred, the official takes both the following actions:</P>
              <P>(i) Issues the notice required by FAR 3.705.</P>
              <P>(ii) Conducts the hearing contemplated by FAR 3.705(c)(3).</P>
              <P>(3) In case of a dispute of material fact about the agency decision, the official refers the matter to the fact-finding official designated by the Chairman of the GSA Board of Contract Appeals. The voiding and rescinding official makes this referral if the dispute of fact relates to any of the following:</P>
              <P>(i) Contracts affected by the final conviction.</P>
              <P>(ii) Amounts expended and property transferred by the Government under the affected contracts.</P>
              <P>(iii) Identity and value of any tangible benefits received by the Government under the affected contracts.</P>
              <P>(4) The voiding and rescinding official issues GSA's final decision under FAR 3.705(e) after receiving the fact-finding official's report, if a referral was made. The voiding and rescinding official may reject the fact-finding official's findings only if they are clearly erroneous or arbitrary and capricious.</P>
              <P>(5) The official coordinates the final decision was the contracting activity and provides the activity a copy of the decision.</P>
              <P>(c) <E T="03">Fact-finding official's actions:</E> The fact-finding official takes all the following actions:</P>
              <P>(1) Gives the contractor an opportunity to dispute material facts.</P>
              <P>(2) Conducts the proceedings under rules consistent with FAR 3.705(c)(3).</P>
              <P>(3) Schedules a hearing within 20 calendar days after receiving the referral. The official may grant extensions for good cause at the request of the contractor or GSA.</P>
              <P>(4) Delivers written findings of fact to the voiding and rescinding official (together with a transcription of the proceeding, if made) within 20 calendar days after the hearing record closes. The findings must resolve any material disputes of fact by a preponderance of the evidence.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 504</EAR>
          <HD SOURCE="HED">PART 504—ADMINISTRATIVE MATTERS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 504.4—Safeguarding Classified Information Within Industry</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>504.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>504.475</SECTNO>
              <SUBJECT>Return of classified information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 504.5—Electronic Commerce in Contracting</HD>
              <SECTNO>504.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>504.502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>504.570</SECTNO>
              <SUBJECT>Procedures for using the EPS.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 504.6—Contract Reporting</HD>
              <SECTNO>504.602-71</SECTNO>
              <SUBJECT>Federal Procurement Data System—public access to data.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37205, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 504.4—Safeguarding Classified Information Within Industry</HD>
            <SECTION>
              <SECTNO>504.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) This subpart:</P>

              <P>(1) Prescribes procedures for safeguarding classified information required to be disclosed to contractors in <PRTPAGE P="165"/>connection with the solicitation of offers, and the award, performance, and termination of contracts.</P>
              <P>(2) Implements the requirements of the Department of Defense's Industrial Security Regulation (ISR) and Industrial Security Manual for Safeguarding Classified Information (ISM). By agreement, the Department of Defense (DOD) will act for, and on behalf of, GSA in rendering security services required for safeguarding classified information released by GSA to U.S. industry.</P>
              <P>(b) As used in this subpart, the term:</P>
              <P>(1) “Contractor(s)” means prospective contractors, subcontractors, vendors, and suppliers.</P>
              <P>(2) “U.S. industry” means those industries (including educational and research institutions) located within the United States, its possessions, and the Commonwealth of Puerto Rico.</P>
            </SECTION>
            <SECTION>
              <SECTNO>504.475</SECTNO>
              <SUBJECT>Return of classified information.</SUBJECT>
              <P>(a) You must recover classified information unless it has been destroyed as provided in paragraph 19 of the ISM. The Government agency that provided classified information to a GSA contractor is responsible for the return of the information.</P>
              <P>(b) You must ensure that classified information furnished to prospective offerors, offerors, or contractors is returned immediately after any of the following:</P>
              <P>(1) After bid opening or closing date for receipt of proposals by non-responding offerors.</P>
              <P>(2) After contract award by unsuccessful offerors.</P>
              <P>(3) Upon termination or completion of the contract.</P>
              <P>(4) Upon notification that authorization to release classified information has been withdrawn.</P>
              <P>(5) After notification that a facility:</P>
              <P>(i) Does not have adequate means to safeguard classified information.</P>
              <P>(ii) Has had its security clearance revoked or inactivated.</P>
              <P>(6) Whenever otherwise instructed by the authority responsible for the security classification.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 504.5—Electronic Commerce in Contracting</HD>
            <SECTION>
              <SECTNO>504.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart provides policy and procedure for use of GSA's Electronic Posting System (EPS).</P>
            </SECTION>
            <SECTION>
              <SECTNO>504.502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) The EPS is GSA's primary vehicle for disseminating synopses and written solicitations. GSA intends that the EPS will substitute for, not supplement, paper copies of solicitations. (Note that FAR 2.101 defines “in writing” or “written” to include “electronically transmitted and stored information.”)</P>
              <P>(b) This policy does not apply to orders placed against existing contracts, including Federal Supply Service schedule contracts.</P>
              <P>(c) Nothing in this policy limits your authority to obtain oral quotations or proposals as authorized by regulation (e.g., FAR 13.106-1 or FAR 15.203(f)).</P>
            </SECTION>
            <SECTION>
              <SECTNO>504.570</SECTNO>
              <SUBJECT>Procedures for using the EPS.</SUBJECT>
              <P>(a) You must use the EPS to issue any synopsis required by FAR part 5 or GSAR part 505.</P>
              <P>(b) You must issue each written solicitation on the EPS, except as provided in paragraphs (c)(2) and (d) of this section.</P>
              <P>(c) Although GSA intends that the EPS will substitute for paper copies of solicitations, web-based transactions are not practical in some industries or in some geographic areas at this time.</P>

              <P>(1) If you expect that electronic access to a solicitation will result in adequate competition, distribute the solicitation only through the EPS. Include the following notice in the related synopsis:
              </P>
              <EXTRACT>

                <P>GSA is issuing this solicitation only electronically. Interested parties may access the solicitation at <E T="03">http://www.eps.gov.</E> This site provides instructions for downloading the solicitation file.</P>
              </EXTRACT>
              

              <P>(2) If you believe that distribution of paper copies is necessary to ensure adequate competition, document the file to justify distribution of paper copies. Include the notice in paragraph (c)(1) of this section in the related synopsis, leaving out the first sentence.<PRTPAGE P="166"/>
              </P>

              <P>(d) In some cases, release of construction drawings must be controlled to ensure adequate security. In other cases, an exhibit or attachment incorporated in a solicitation may not be available electronically. In either of these cases, you must explain in both the synopsis and the solicitation how interested parties may obtain a copy. In addition to the notice required by paragraph (c), include a notice substantially the same as follows in both the synopsis and solicitation. Tailor the notice as necessary for the particular acquisition.
              </P>
              <EXTRACT>
                <P>This solicitation incorporates documents which are not available electronically. See [Identify the solicitation section that lists the subject documents]. Interested parties may request copies of these documents by writing the Contracting Officer at the address in [Identify address block in the solicitation].</P>
              </EXTRACT>
              

              <P>(e) The Electronic Posting System Manual provides detailed instructions for using the EPS. The Manual is available at <E T="03">http://www.eps.gov/buyer.html.</E>
              </P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 504.6—Contract Reporting</HD>
            <SECTION>
              <SECTNO>504.602-71</SECTNO>
              <SUBJECT>Federal Procurement Data System—public access to data.</SUBJECT>
              <P>(a) <E T="03">The FPDS database</E>. The General Services Administration awarded a contract for creation and operation of the Federal Procurement Data System (FPDS) database. That database includes information reported by departments and agencies as required by Federal Acquisition Regulation (FAR) Subpart 4.6. One of the primary purposes of the FPDS database is to provide information on Government procurement to the public.</P>
              <P>(b) <E T="03">Fee for direct hook-up</E>. To the extent that a member of the public requests establishment of real-time integration of reporting services to run reports from another application, a one-time charge of $2,500 for the original integration must be paid by the requestor. This one-time charge covers the setup and certification required for an integrator to access the FPDS database and for technical assistance to help integrators use the web services. The fee will be paid to the FPDS contractor and credited to invoices submitted to GSA by the FPDS contractor.</P>
              <CITA>[69 FR 77662, Dec. 28, 2004]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="167"/>
        <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 505</EAR>
          <HD SOURCE="HED">PART 505—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 501.1—Dissemination of Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>505.101</SECTNO>
              <SUBJECT>Methods of disseminating information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 505.2—Synopses of Proposed Contract Actions</HD>
              <SECTNO>505.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <SECTNO>505.203</SECTNO>
              <SUBJECT>Publicizing and response time.</SUBJECT>
              <SECTNO>505.270</SECTNO>
              <SUBJECT>Synopsis of amendments to solicitations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 505.5—Paid Advertisements</HD>
              <SECTNO>505.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37206, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 505.1—Dissemination of Information</HD>
            <SECTION>
              <SECTNO>505.101</SECTNO>
              <SUBJECT>Methods of disseminating information.</SUBJECT>
              <P>(a) In Regions with a Business Service Center (BSC), you may post the notice required by FAR 5.101(a)(2) at the BSC.</P>
              <P>(b) Use GSA's Electronic Posting System (EPS) to issue each synopsis required by FAR part 5 or GSAR part 505. When synopsizing a solicitation, include the appropriate notice(s) required by 504.570(c) and (d).</P>
              <P>(c) For acquisitions involving real property:</P>
              <GPOTABLE CDEF="s200,r100" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">If the acquisition is not exempt under FAR 5.202 or GSAR 505.202, and—</CHED>
                  <CHED H="1">Then you must publicize the proposed acquisition—</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">(1) The acquisition is for real property appraisal services estimated to cost $25,000 or more</ENT>
                  <ENT>(1) Either:<LI>(i) In local newspapers.</LI>
                    <LI>(ii) In the Commerce Business Daily through the EPS.</LI>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(2) The acquisition is for leasehold interests in real property estimated to exceed 10,000 square feet (except lease construction on a preselected site)</ENT>
                  <ENT>(2) Either:<LI>(i) In local newspapers.</LI>
                    <LI>(ii) In the Commerce Business Daily through the EPS.</LI>
                  </ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(3) The acquisition is for a leasehold interest in a building to be constructed on a preselected site</ENT>
                  <ENT>(3) In the Commerce Business Daily through the EPS.</ENT>
                </ROW>
              </GPOTABLE>
              <P>(d) You may publicize proposed leases of 10,000 square feet or less in local newspapers if it will serve to promote competition.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 505.2—Synopses of Proposed Contract Actions</HD>
            <SECTION>
              <SECTNO>505.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>The Administrator has determined under section 18(c)(3) of the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 416(c)(3)) and Section 8(g)(3) of the Small Business Act, as amended (15 U.S.C. 644(g)(3)) that:</P>
              <P>(a) Synopsizing in the CBD is not always appropriate for acquisitions of leasehold interests in real property (except lease construction on a designated site) or real property appraisal services.Your may publicize such contract actions following the procedures in 505.101 and 505.203.</P>
              <P>(b) It is not appropriate or reasonable to publish an advance notice of any of the following:</P>
              <P>(1) Acquisitions of works of art, including the design, execution and installation of the artwork, under the Art-in-Architecture Program.</P>
              <P>(2) Supplemental agreements to leases of real property involving any of the following:</P>
              <P>(i) Expansion requests within the scope of a lease (see 570.403).</P>
              <P>(ii) Lease extensions under the conditions defined in 570.405.</P>
              <P>(iii) Building alterations within the scope of a lease (see 570.5).</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="168"/>
              <SECTNO>505.203</SECTNO>
              <SUBJECT>Publicizing and response time.</SUBJECT>
              <P>(a) If you publicize in local newspapers under 505.101(c), ensure that the notice appears in local newspapers at least 3 calendar days before issuance of the solicitation. Except as provided in paragraph (B) of this section, allow at least these minimum response times:</P>
              <P>(1) For leasehold interests in real property, 20 calendar days between solicitation issuance and the date established for receipt of initial offers.</P>
              <P>(2) For real property appraisal services valued at less than either the Trade Agreements Act (TAA) threshold or the North American Free Trade Agreement (NAFTA) threshold, 10 calendar days between solicitation issuance and the date established for receipt of initial offers. The lower of the two thresholds governs.</P>
              <P>(3) For real property appraisal services valued at or over the TAA threshold or the NAFTA threshold, 40 calendar days from when the notice appears to receipt of initial offers. If the acquisition falls in a general category identified in an annual forecast, the period may be reduced to as few as 10 days. The lower of the two thresholds governs.</P>
              <P>(b) The following exceptions to the publicizing and response times in paragraph (a) of this section apply only to proposed acquisitions of leasehold interests in real property:</P>
              <P>(1) For a proposed acquisition conducted using simplified lease acquisition procedures (see 570.2), consider the individual acquisition and establish a reasonable response time.</P>
              <P>(2) In cases of urgency, provide as much time as possible and document the file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>505.270</SECTNO>
              <SUBJECT>Synopsis of amendments to solicitations.</SUBJECT>
              <P>Synopsize in the CBD any solicitation amendment when the amendment either:</P>
              <P>(a) Increases the anticipated value of the proposed acquisition above the dollar threshold requiring synopsis.</P>
              <P>(b) Alters the scope of the proposed acquisition so that increased interest of contractors can be reasonably anticipated.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 505.5—Paid Advertisements</HD>
            <SECTION>
              <SECTNO>505.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>(a) <E T="03">Newspapers.</E> The HCA, or designee, must approve publication of paid newspaper advertisements. Approval is not required if FAR 5.101 or 505.101 requires publication. Document the contract file with the regulatory citation or written approval to support the use of paid newspaper advertisements.</P>
              <P>(b) <E T="03">Other media.</E> Advance approval is not required to advertise in other media.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 509</EAR>
          <HD SOURCE="HED">PART 509—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 509.1—Responsible Prospective Contractors</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>509.105</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>509.105-1</SECTNO>
              <SUBJECT>Obtaining information.</SUBJECT>
              <SECTNO>509.105-2</SECTNO>
              <SUBJECT>Determinations and documentation.</SUBJECT>
              <SECTNO>509.106</SECTNO>
              <SUBJECT>Preaward surveys.</SUBJECT>
              <SECTNO>509.106-2</SECTNO>
              <SUBJECT>Requests for preaward surveys.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 509.2—Qualifications Requirements</HD>
              <SECTNO>509.206</SECTNO>
              <SUBJECT>Acquisitions subject to qualification requirements.</SUBJECT>
              <SECTNO>509.206-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 509.3—First Article Testing and Approval</HD>
              <SECTNO>509.306</SECTNO>
              <SUBJECT>Solicitation requirements.</SUBJECT>
              <SECTNO>509.308</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>509.308-1</SECTNO>
              <SUBJECT>Testing performed by the contractor.</SUBJECT>
              <SECTNO>509.308-2</SECTNO>
              <SUBJECT>Testing performed by the Government.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 509.4—Debarment, Suspension, and Ineligibility</HD>
              <SECTNO>509.401</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>509.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>509.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <SECTNO>509.405-1</SECTNO>
              <SUBJECT>Continuation of current contracts.</SUBJECT>
              <SECTNO>509.405-2</SECTNO>
              <SUBJECT>Restrictions on subcontracting.</SUBJECT>
              <SECTNO>509.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>509.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>509.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>509.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <SECTNO>509.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>509.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <PRTPAGE P="169"/>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37207, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 509.1—Responsible Prospective Contractors</HD>
            <SECTION>
              <SECTNO>509.105</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.105-1</SECTNO>
              <SUBJECT>Obtaining information.</SUBJECT>
              <P>(a) <E T="03">From a prospective contractor.</E> In making a determination of responsibility, you may use the GSA Form 527, Contractor's Qualification and Financial Information, to obtain information regarding financial capability from a prospective contractor.</P>
              <P>(b) <E T="03">From Government personnel.</E> Solicit and consider information from all appropriate activities, including legal counsel, quality control, contract management, credit and finance, and the auditor before determining that an offeror is responsible. “Auditor” is either:</P>
              <P>(1) The Assistant Inspector General for Auditing (Central Office only).</P>
              <P>(2) The Regional Inspector General for Auditing.</P>
              <P>(3) Chief, Credit and Finance Section, the Heartland Region (for an evaluation of a prospective contractor's financial competence and credit).</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.105-2</SECTNO>
              <SUBJECT>Determinations and documentation.</SUBJECT>
              <P>(a) Provide written notification to a prospective contractor you determine not responsible. Include the basis for the determination. Notification provides the prospective contractor with the opportunity to correct any problem for future solicitation.</P>
              <P>(b) Due to the potential for de facto debarment, avoid making repeated determinations of nonresponsiblity based on the same past performance information.</P>
              <P>(c) To provide for timely consideration of the need to institute action to debar a contractor, submit a copy of each nonresponsibility determination, other than those based on capacity or financial capability, to the debarring official.</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.106</SECTNO>
              <SUBJECT>Preaward surveys.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.106-2</SECTNO>
              <SUBJECT>Requests for preaward surveys.</SUBJECT>
              <P>
                <E T="03">Federal Supply Service (FSS).</E> Contracting activities in FSS may use GSA Form 353, Performance Evaluation &amp; Facilities Report, in lieu of SF 1403 through 1406. Complete Section I in accordance with instructions in 553.370-353-I.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 509.2—Qualifications Requirements</HD>
            <SECTION>
              <SECTNO>509.206</SECTNO>
              <SUBJECT>Acquisitions subject to qualification requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.206-2</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert 552.209-70, Product Removal from Qualified Products List, in solicitations and contracts containing FAR 52.209-1, Qualification Requirements.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 509.3—First Article Testing and Approval</HD>
            <SECTION>
              <SECTNO>509.306</SECTNO>
              <SUBJECT>Solicitation requirements.</SUBJECT>
              <P>(a) The clauses at FAR 52.209-3 and 52.209-4 do not cover all the solicitation requirements described in FAR 9.306. If a solicitation contains a testing and approval requirement, you must address the requirements in FAR 9.306 (d), (f), (g), (h), (i), and (j). For FSS, the clauses prescribed in 509.308 address the requirement in FAR 9.306(h).</P>
              <P>(b) In FSS solicitations that contain FAR 52.209-3, First Article Approval—Contractor Testing, or FAR 52.209-4, First Article Approval—Government Testing, insert 552.209-71, Waiver of First Article Testing and Approval Requirement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.308</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.308-1</SECTNO>
              <SUBJECT>Testing performed by the contractor.</SUBJECT>
              <P>In FSS solicitations and contracts that will require the contractor to perform testing, insert 552.209-72, Supplemental Requirements for First Article Approval—Contractor Testing, and FAR 52.209-3, Alternate I.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="170"/>
              <SECTNO>509.308-2</SECTNO>
              <SUBJECT>Testing performed by the Government.</SUBJECT>
              <P>In FSS solicitations and contracts that will have the Government responsible for first article testing, insert 552.209.73, Supplemental Requirements for First Article Approval—Government Testing, and FAR 52.209-4, Alternate I.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 509.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>509.401</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>This subpart applies to all the following:</P>
              <P>(a) Acquisitions of personal property, nonpersonal services (including construction), space in buildings, transportation services (Federal Property Management Regulations (FPMR) Subpart 101-40.4).</P>
              <P>(b) The purchase, sale, and disposal of real property.</P>
              <P>(c) Contracts for disposal of personal property (FPMR Subpart 101-45.6).</P>
              <P>(d) Covered transactions as defined at General Services Property Management Regulations (GSPMR) 105-68.110(a).</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.403</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Fact-finding official,</E> means the Chairman of the Debarment and Suspension Board within the GSA Board of Contract Appeals or a designee.</P>
              <P>
                <E T="03">Notice</E> means a letter sent by certified mail, return receipt requested, to the last known address of a party, its counsel, or agent for service of process. In the case of a business, such notice may be sent to any partner, principal officer, director, owner or co-owner, or joint venturer. If no return receipt is received within 10 calendar days of mailing, receipt will then be presumed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.405-1</SECTNO>
              <SUBJECT>Continuation of current contracts.</SUBJECT>
              <P>(a) Consider terminating a current contract under any of the following circumstances:</P>
              <P>(1) Any of the circumstances giving rise to the debarment or suspension also constitute a default in the contractor's performance of the contract.</P>
              <P>(2) The contractor presents a significant risk to the Government in completing the contract.</P>
              <P>(3) The conduct that provides the cause of the suspension, proposed debarment, or debarment involved a GSA contract.</P>
              <P>(b) Determine which of the following is in the Government's best interest:</P>
              <P>(1) Terminate the contract for either convenience or cause.</P>
              <P>(2) Cancel under appropriate contract clauses (e.g., 552.238-73, Cancellation).</P>
              <P>(3) Use other available alternatives under:</P>
              <P>(i) FAR 3.2 and 503.2.</P>
              <P>(ii) FAR 3.7 and 503.7.</P>
              <P>(c) Before making a decision, consult with legal counsel and consider these factors:</P>
              <P>(1) Seriousness of the cause for debarment or suspension.</P>
              <P>(2) Extent of contract performance.</P>
              <P>(3) Potential costs of termination and reprocurement.</P>
              <P>(4) Need for or urgency of the requirement, contract coverage, and the impact of delay for reprocurement.</P>
              <P>(5) Availability of other safeguards to protect the Government's interest until completion of the contract.</P>
              <P>(6) Availability of alternate competitive sources to meet the requirement (e.g., other multiple award contracts, readily available commercial items, etc.).</P>
              <P>(d) The debarring official is the designee under FAR 9.405-1(c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.405-2</SECTNO>
              <SUBJECT>Restrictions on subcontracting.</SUBJECT>
              <P>The debarring official is the designee under FAR 9.405-2(a).</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The debarring official is the designee under FAR 9.406-1(c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E>
              </P>

              <P>(1) Refer to the debarring official matters involving serious contract improprieties or performance deficiencies. Performance deficiencies that continue over a period of time or apply to more than one contract may warrant debarment consideration.<PRTPAGE P="171"/>
              </P>
              <P>(2) Refer possible criminal or fraudulent activities to the Office of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste, Fraud, Abuse, and Corruption. If, after investigation, the OIG believes a cause for debarment exists, it will refer the matter to the debarring official for consideration of debarment action.</P>
              <P>(b) <E T="03">Reports.</E> Include in referrals to the debarring official a report that contains at least the following:</P>
              <P>(1) The recommendation and supporting rationale.</P>
              <P>(2) A list of parties to be considered for possible debarment, including the contractor, principals, and affiliates. Include last known home and business addresses, zip codes, and DUNS Number.</P>
              <P>(3) A statement of facts.</P>
              <P>(4) Copies of documentary evidence and a list of witnesses. Include addresses and telephone numbers. Determine their availability to appear at a fact-finding proceeding and identify the subject matter of their testimony.</P>
              <P>(5) GSA's acquisition history with the contractor. Include recent experience, copies of the pertinent contracts, and an explanation of impact debarment would have on GSA programs. OIG referrals do not require this explanation; the debarring official will obtain the information directly from the contracting activity(s).</P>
              <P>(6) A list of any known active or potential criminal investigations, criminal or civil proceedings, or administrative claims before the Board of Contract Appeals.</P>
              <P>(7) A statement regarding the impact of the debarment action on GSA programs. This statement is not required for referrals by the Inspector General; the debarring official will obtain a statement directly from the contracting activity(s).</P>
              <P>(c) <E T="03">Review.</E> The debarring official will review the report, and after coordinating with assigned legal counsel, either:</P>
              <P>(1) Initiate debarment action.</P>
              <P>(2) Decline debarment action.</P>
              <P>(3) Request additional information.</P>
              <P>(4) Refer the matter to the OIG for further investigation and development of a case file.</P>
              <P>(d) <E T="03">Decisionmaking process.</E>
              </P>
              <P>(1) The debarring official will provide:</P>
              <P>(i) Notice of declinations, proposed debarments, and decisions to the referring activity.</P>
              <P>(ii) Notice of proposed debarment to each party being considered for debarment.</P>
              <P>(iii) Decision notices to each party after considering information in the administrative record and information and argument submitted by the affected party or parties.</P>
              <P>(2) A party proposed for debarment:</P>
              <P>(i) Has 30 calendar days after receipt of the notice to respond to the debarring official or the debarment becomes final.</P>
              <P>(ii) May request and receive a copy of the administrative record that was the basis for the proposed debarment. If information is withheld, the party will be notified and provided the reason.</P>
              <P>(iii) May request the opportunity to present information and argument in person to the debarring official. The debarring official will schedule an oral presentation within 20 calendar days of receipt of the request, unless a longer period of time is requested by the party. An oral presentation is informal and a transcript usually is not made. The party may supplement the oral presentation with written information and arguments.</P>
              <P>(iv) May identify to the debarring official material facts in dispute and the bases. For an action other than one based on a conviction of civil judgment, a party may request review and a written finding by a fact-finding official.</P>
              <P>(3) The debarring official will determine whether there is a genuine dispute of material fact. If so, the debarring official refers the matter to a fact-finding official, who will take the following action as appropriate:</P>
              <P>(i) Schedule a hearing within 20 calendar days after receipt of a request to resolve disputed facts.</P>
              <P>(ii) Grant extensions for good cause.</P>
              <P>(iii) Provide notice of scheduled hearing.</P>
              <P>(iv) Conduct hearings under rules consistent with FAR 9.406-3(b)(2).</P>

              <P>(v) Resolve facts in dispute and provide the debarring official with written <PRTPAGE P="172"/>findings of fact based on a preponderance of the evidence. The fact-finding official provides the written findings of fact (together with a transcription of the proceeding, unless waived) within 20 calendar days after the hearing record closes.</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>509.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The suspending official is the designee under FAR 9.407-1(d).</P>
            </SECTION>
            <SECTION>
              <SECTNO>509.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">General.</E> The procedures in 509.406-3 apply to suspension actions except as noted in paragraph (b) of this section.</P>
              <P>(b) <E T="03">Fact-finding.</E>
              </P>
              <P>(1) Fact-finding will not be conducted in an action:</P>
              <P>(i) Based on an indictment.</P>
              <P>(ii) When the suspending official finds no genuine dispute of material facts.</P>
              <P>(2) If the action is not based on an indictment, the suspending official must coordinate with the Department of Justice or state prosecutorial authority through OIG. Based on the advice received, the suspending official will determine if fact-finding would impair substantial interests of the Federal or state Government. In an action not based on an indictment, a suspended party may:</P>
              <P>(i) Identify to the suspending official material facts in dispute and the bases.</P>
              <P>(ii) Request review and a written finding by a fact-finding official to resolve genuine disputes of material fact. For procedures involving a genuine dispute of material fact, see 509.406-3(d)(3).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 511</EAR>
          <HD SOURCE="HED">PART 511—DESCRIBING AGENCY NEEDS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 511.1—Selecting and Developing Requirements Documents</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>511.104</SECTNO>
              <SUBJECT>Use of brand name or equal purchase descriptions.</SUBJECT>
              <SECTNO>511.104-70</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 511.2—Using and Maintaining Requirements Documents</HD>
              <SECTNO>511.204</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 511.4—Delivery or Performance Schedules</HD>
              <SECTNO>511.404</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 511.6—Priorities and Allocations</HD>
              <SECTNO>511.600</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>511.601</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>511.602</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>511.603</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>511.604</SECTNO>
              <SUBJECT>Solicitation provision and contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 121(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37209, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 511.1—Selecting and Developing Requirements Documents</HD>
            <SECTION>
              <SECTNO>511.104</SECTNO>
              <SUBJECT>Use of brand name or equal purchase descriptions.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>511.104-70</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>

              <P>(a) Include the following immediately after each brand name or equal item description, with instructions for the offeror to complete the information:
              </P>
              <EXTRACT>
                <P>Offering on:
                </P>
                <FP SOURCE="FP-DASH">Manufacturer's Name</FP>
                <FP SOURCE="FP-DASH">Brand</FP>
                <FP SOURCE="FP-DASH">Model or Part No.</FP>
              </EXTRACT>
              

              <P>(b) If the solicitation does not require samples for “or equal” offers, include the following notice in the list of brand name or equal items or component parts:
              </P>
              <EXTRACT>
                <HD SOURCE="HD1">Notice</HD>
                <P>If you offer other than brand name items identified in this solicitation, you must provide adequate information for GSA to determine the quality of the product(s) offered.</P>
              </EXTRACT>
              
              <P>(c) If you use brand name or equal purchase descriptions for some component parts of an end item, you may limit the application of the provision at FAR 52.211-6 to the specified components</P>
              <CITA>[64 FR 37209, July 9, 1999. Redesignated and amended at 65 FR 41378, July 5, 2000]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="173"/>
            <HD SOURCE="HED">Subpart 511.2—Using and Maintaining Requirements Documents</HD>
            <SECTION>
              <SECTNO>511.204</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) <E T="03">Construction services.</E> Insert the clause at 552.211-71, Standard References, in solicitations and contracts for construction services when you expect the contract amount to exceed the simplified acquisition threshold, and the solicitation meets either of the following conditions:</P>
              <P>(1) The solicitation cites documents or publications not furnished with the solicitation.</P>
              <P>(2) The solicitation incorporates documents or publications by reference.</P>
              <P>(b) <E T="03">Federal specifications.</E> Insert the clause at 552.211-72, Reference to Specifications in Drawings, in solicitations and contracts citing Federal specifications which contain drawings.</P>
              <P>(c) <E T="03">Supply contracts that exceed the simplified acquisition threshold.</E> (1) Include the clause at 552.211-73, Marking, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.</P>
              <P>(2) Include the clause at 552.211-74, Charges for Marking, in solicitations and contracts that include the clause at 552.211-73 or a similar clause.</P>
              <P>(3) Include the clause at 552.211-75, Preservation, Packaging and Packing, in solicitations and contracts for supplies expected to exceed the simplified acquisition threshold. You may also include the clause in contracts estimated to be at or below the simplified acquisition threshold when appropriate. In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule containing information technology Special Item Numbers, use Alternate I.</P>
              <P>(4) Insert a clause substantially the same as the clause at 552.211-76, Charges for Packaging and Packing, in solicitations and contracts for supplies to be delivered to GSA distribution centers.</P>
              <P>(d) <E T="03">Supply contracts.</E> Include the clause at 552.211-77, Packing List, in solicitations and contracts for supplies, including purchases over the micropurchase threshold. In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule containing information technology Special Item Numbers, use Alternate I.</P>
              <CITA>[64 FR 37209, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 68 FR 28065, May 18, 2004]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 511.4—Delivery or Performance Schedules</HD>
            <SECTION>
              <SECTNO>511.404</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) <E T="03">Supply contracts.</E>—(1) <E T="03">Single award schedules.</E> Insert 552.211-8, Time of Delivery, in solicitations and contracts instead of the clause at FAR 52.211-8. If you need to show different delivery times for different items or groups of items, use Alternate I.</P>
              <P>(2) <E T="03">Multiple award schedules.</E> Insert 552.211-78, Commercial Delivery Schedule (Multiple Award Schedule), in solicitations issued and contracts awarded under the multiple award schedule program.</P>
              <P>(3) <E T="03">Shelf-life items.</E> Use the following clauses in solicitations and contracts that require delivery of shelf-life items within a specified number of months from the date of manufacture or production (see 101-27.206-2 of the Federal Property Management Regulation):</P>
              <P>(i) Insert 552.211-79, Acceptable Age of Supplies, if the required shelf-life period is 12 months or less, and lengthy acceptance testing may be involved. For items having a limited shelf-life, substitute Alternate I when required by the director of the commodity center concerned.</P>
              <P>(ii) Insert 552.211-80, Age on Delivery, if the required shelf-life period is more than 12 months, or when source inspection can be performed within a short time period.</P>
              <P>(4) <E T="03">Stock replenishment contracts.</E> Insert 552.211-81, Time of Shipment, in solicitations and stock replenishment contracts that do not include the Availability for Inspection, Testing and Shipment/Delivery clause at 552.211-83 and require shipment within 45 calendar days after receipt of the order. If shipment is required in more than 45 days, use Alternate I.<PRTPAGE P="174"/>
              </P>
              <P>(5) <E T="03">Notice of shipment.</E> Include 552.211-82, Notice of Shipment, in solicitation and contracts for supplies when you need to have a notice of shipment from the contractor.</P>
              <P>(6) <E T="03">Indeterminate testing time.</E> Insert 552.211-83, Availability for Inspection, Testing and Shipment/Delivery, in solicitations and contracts that provide for source inspection by Government personnel and that require lengthy testing for which time frames cannot be determined in advance. If the contract is for stock items, use Alternate I.</P>
              <P>(b) <E T="03">Construction contracts.</E> Insert the clause at 552.211-84, Non-Compliance with Contract Requirements, in solicitations and contracts for construction when you expect the contract amount to exceed the simplified acquisition threshold.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 511.6—Priorities and Allocations</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>69 FR 55934, Sept. 16, 2004, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>511.600</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>FAR Subpart 11.6 implements the Defense Priorities and Allocations System (DPAS), a Department of Commerce (DOC) regulation (15 CFR part 700) to assure timely delivery of industrial resources (products, materials, and services) in support of approved national defense, energy, and civil emergency preparedness (Homeland Security) programs. Pursuant to DPAS Delegation 3, DOC delegated GSA the authority to use the DPAS in support of the GSA Federal Supply system. This subpart implements the DPAS within GSA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>511.601</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>As used in this subpart—</P>
              <P>
                <E T="03">Approved program</E> means a program determined as necessary or appropriate for priorities and allocations support to promote the national defense by the Secretary of Defense, the Secretary of Energy, or the Department of Homeland Security Under Secretary for Emergency Preparedness and Response under the authority of the Defense Production Act, the Stafford Act, and Executive Order 12919, or the Selective Service Act and related statutes, and Executive Order 12742. See Schedule 1 of 15 CFR part 700 for a list of Delegate Agencies, approved programs, and program identification symbols at <E T="03">http://www.bis.doc.gov/DefenseIndustrialBasePrograms/OSIES/DPAS/Default.htm.</E>
              </P>
              <P>
                <E T="03">Authorized person</E> means a Delegate Agency, or other entity either permitted under 15 CFR part 700, or explicitly authorized by DOC to issue DPAS rated orders.</P>
              <P>
                <E T="03">Defense Priorities and Allocations System (DPAS)</E> means the regulation published at 15 CFR part 700 that requires preferential treatment for certain contracts and orders placed by a Delegate Agency in support of an approved program.</P>
              <P>
                <E T="03">Delegate Agency</E> means an agency of the U.S. Government authorized by delegation from DOC to place priority ratings on contracts or orders needed to support approved programs.</P>
              <P>
                <E T="03">Rated order</E> means a prime contract, a subcontract, a purchase order, or a delivery or task order in support of an approved program issued in accordance with the provisions of the DPAS regulation (15 CFR part 700).</P>
            </SECTION>
            <SECTION>
              <SECTNO>511.602</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>(a) The purpose of the DPAS is to assure the timely availability of industrial resources to meet current national defense, energy, and civil emergency preparedness program requirements and to provide an operating system to support rapid industrial response in a national emergency. The primary statutory authority for the DPAS is Title I of the Defense Production Act of 1950, as amended, with additional authority from the Selective Service Act of 1948, and the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Executive Orders 12919 and 12742 delegate this authority to the DOC to administer the DPAS.The DOC is further authorized to redelegate to heads of other departments and agencies (Delegate Agencies) authority under the DPAS for the priority rating of contracts and orders in support of approved programs. Within the DOC, the Office of Strategic Industries and Economic Security (SIES) <PRTPAGE P="175"/>is assigned the implementation, administration, and compliance responsibilities for the system.</P>
              <P>(b) The DPAS is published in the Code of Federal Regulations at 15 CFR part 700. This regulation provides an overview, a detailed explanation of operations and procedures, and other implementing guidance, including information on special priorities assistance and compliance.</P>
              <P>(c) Orders placed under DPAS are “rated orders.” Rated orders must receive preferential treatment only as necessary to meet delivery requirements. Rated orders are identified by a rating symbol of either “DX” or “DO” followed by a program identification symbol. All “DO” rated orders have equal priority with each other and take preference over unrated orders. All “DX” rated orders have equal priority with each other and take preference over “DO” rated orders and unrated orders. A program identification symbol indicates which approved program is supported by the rated order.</P>
              <P>(d) Only authorized persons may place an order containing a DPAS priority rating.</P>
              <P>(e) Within GSA, the Federal Supply Service (FSS) has been delegated the authority to issue rated orders to meet approved national defense, energy, and civil emergency preparedness program requirements of the supply distribution program. The Commissioner, FSS, shall issue additional guidance, as may be necessary, to ensure effective implementation of its delegated DPAS authority, such as the exclusions listed in paragraph F(2) of the 1998 DOC DPAS Delegation 3.</P>
              <P>(f) Executive Order 12919 defines the jurisdictional limitations as set forth in 15 CFR 700.18(b).</P>
            </SECTION>
            <SECTION>
              <SECTNO>511.603</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) A DPAS rating may be placed against an entire contract at time of award or an individual order issued under an existing, otherwise unrated, contract.</P>
              <P>(b) When a DPAS rating is placed against an entire contract, the contracting officer must include the clause and provision prescribed at FAR 11.604, as well as the elements listed in paragraphs (c)(1) through (c)(3) of this section (see 15 CFR 700.12).</P>
              <P>(c) When a DPAS rating is placed against an individual order issued under an existing, otherwise unrated, contract, the order must include the following elements (see 15 CFR 700.12):</P>
              <P>(1) The appropriate priority rating symbol (<E T="03">i.e.,</E> either “DO” or “DX”) along with the program identification symbol. As required by the 1998 DOC DPAS Delegation 3 to GSA, when GSA contracting officers place DO rated orders, they will use program identification symbol K1. When placing a DX rated order for other agencies, GSA contracting officers will use the requesting agency program identification symbol. When a Delegate Agency places its own orders, it uses its own program identification symbol. (See Schedule 1 of 15 CFR part 700 for a listing of Delegate Agencies, approved programs, and program identification symbols.)</P>
              <P>(2) A required delivery date. The words “as soon as possible” or “immediately” do not constitute a required delivery date. A specific date or a specified number of days ARO (after receipt of order) is acceptable.</P>
              <P>(3) The written signature on a manually placed order, or the digital signature or name on an electronically placed order of an individual authorized to place rated orders.</P>
              <P>(4) A statement that reads substantially as follows:</P>
              <P>“This is a rated order certified for national defense use, and you are required to follow all the provisions of the Defense Priorities and Allocations System regulation (15 CFR part 700).”</P>
              <P>(d) Multiple and Single Award Schedule contracts are not rated at time of award. Individual DPAS rated orders must include the elements listed in paragraphs (c)(1) through (c)(4) of this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>511.604</SECTNO>
              <SUBJECT>Solicitation provision and contract clause.</SUBJECT>

              <P>The contracting officer must insert in full text the clause at 552.211-15, Defense Priorities and Allocations System Requirements, in Single and Multiple Award Schedule solicitations and resultant contracts, except where the <PRTPAGE P="176"/>contract is wholly for products, materials, or services excluded from DPAS applicability (see 15 CFR 700.18).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 512</EAR>
          <HD SOURCE="HED">PART 512—ACQUISITION OF COMMERCIAL ITEMS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 512.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD>
            <SECTION>
              <SECTNO>512.301</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses for the acquisition of commercial items.</SUBJECT>
              <P>(a) <E T="03">Solicitation provisions and clauses.</E> Insert these provisions or clauses in solicitations or solicitations and contracts, respectively, in accordance with the instructions provided:</P>
              <P>(1) 552.212-70, Preparation of Offer (Multiple Award Schedule), in solicitations and contracts issued under the multiple award schedule program.</P>
              <P>(2) 552.213-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items, when listed clauses apply. The clause provides for incorporation by reference of terms and conditions which are, to the maximum extent practicable, consistent with customary commercial practice. If necessary, tailor this clause.</P>
              <P>(3) 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisitions of Commercial Items, when listed clauses apply. The clause provides for the incorporation by reference of terms and conditions required to implement provisions of law or executive orders that apply to commercial item acquisitions.</P>
              <P>(4) 552.213-73, Evaluation-Commercial Items (Multiple Award Schedule), in multiple award schedule solicitations. Use this provision instead of FAR 52.212-2.</P>
              <P>(b) <E T="03">Use of required provisions and clauses.</E> Use only those provisions and clauses prescribed in this part. Unless the use of a provision or clause prescribed elsewhere in the GSAR is consistent with customary commercial practice for the item being acquired, disregard contrary instructions. Provisions and clauses prescribed in this part will be revised to reflect the applicability of new statutes and executive orders.</P>
              <P>(c) <E T="03">Discretionary use of GSAR provisions and clauses.</E> Consistent with the limitations contained in FAR 12.302(c), include in solicitations and contracts by addendum other GSAR provisions and clauses.</P>
              <P>(d) <E T="03">Use of additional provisions and clauses.</E> The Senior Procurement Executive must approve the use of a provision or clause that is either not:</P>
              <P>(1) Prescribed in the FAR or GSAR for use in contracts for commercial items.</P>
              <P>(2) Consistent with customary commercial practice.</P>
              <CITA>[64 FR 37210, July 9, 1999, as amended at 65 FR 41378, July 5, 2000]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="177"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 513</EAR>
          <HD SOURCE="HED">PART 513—SIMPLIFIED ACQUISITION PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 513.3—Simplified Acquisition Methods</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>513.302</SECTNO>
              <SUBJECT>Purchase orders.</SUBJECT>
              <SECTNO>513.302-70</SECTNO>
              <SUBJECT>Purchase order and related forms.</SUBJECT>
              <SECTNO>513.303</SECTNO>
              <SUBJECT>Blanket purchase agreements (BPAs).</SUBJECT>
              <SECTNO>513.303-3</SECTNO>
              <SUBJECT>Preparation of BPAs.</SUBJECT>
              <SECTNO>513.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37211, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 513.3—Simplified Acquisition Methods</HD>
            <SECTION>
              <SECTNO>513.302</SECTNO>
              <SUBJECT>Purchase orders.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>513.302-70</SECTNO>
              <SUBJECT>Purchase order and related forms.</SUBJECT>
              <P>(a) See GSA Order, Guidance on Use of the Credit Card for Purchases (CFO 4200.1), for forms required for purchase card actions.</P>
              <P>(b) Use GSA Form 3000 or 300-1 (pin-feed format), Order for Supplies and Services, instead of OF 347, Order for Supplies or Services, when making purchases payable through the National Electronic Accounting and Reporting (NEAR) System.</P>
              <P>(1) This form may also be used to make other purchases when a specific form is not prescribed. It may be used as a delivery or task order instead of SF 1449, Solicitation/Contract/Order for Commercial Items.</P>
              <P>(2) Prepare and process GSA Form 300 following the instructions at 553.370-300-I. Use GSA Form 300A or 300-A(1) (pin-feed format), order for Supplies or Services (continuation), if additional space is needed.</P>
              <P>(c) Use GSA Form 1458, Motor Vehicle Shop Work Order, Repair and Purchase Order, instead of the OF 347 when making purchases in connection with the maintenance, servicing or repair of GSA fleet management vehicles.</P>
              <P>(d) Use GSA Form 3186, Order for Supplies or Services or GSA Form 3186-B, Order for Supplies or Services (EDI), instead of OF 347, Order for Supplies or Services, when making simplified acquisitions or placing orders against established contracts through the FSS-19 system.</P>
              <P>(1) Use GSA Form 3186 for mail orders placed against established contracts.</P>
              <P>(2) Document the file for a delivery, task, or purchase order transmitted to contractors electronically using Electronic Data Interchange (EDI) procedures by generating a GSA Form 3186-B.</P>
              <P>(e) Use GSA Form 8002B, Motor Vehicle Delivery Order, to order fleet management vehicles. Do not use this form as a purchase order for simplified acquisitions. Use GSA Form 8002A to notify the consignee of the status of motor vehicle requisitions.</P>
              <CITA>[64 FR 37211, July 9, 1999, as amended at 65 FR 11247, Mar. 2, 2000]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>513.303</SECTNO>
              <SUBJECT>Blanket purchase agreements (BPAs).</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>513.303-3</SECTNO>
              <SUBJECT>Preparation of BPAs.</SUBJECT>
              <P>(a) <E T="03">Description of agreement.</E> Describe limitations, if any, on the geographic area to be served.</P>
              <P>(b) <E T="03">Delivery tickets.</E> Instruct the contractor to include the name of the individual placing the order on the delivery ticket. The individual receiving the item or service must sign and date the delivery or service ticket. Both the supplier and the receiving office must retain a copy of the delivery ticket.</P>
            </SECTION>
            <SECTION>
              <SECTNO>513.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
              <P>You may use the GSA Form 3521, Blanket Purchase Agreement, to prepare a blanket purchase agreement.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 514</EAR>
          <HD SOURCE="HED">PART 514—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 514.2—Solicitation of Bids</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>514.201</SECTNO>
              <SUBJECT>Preparation of invitations for bids.</SUBJECT>
              <SECTNO>514.201-1</SECTNO>
              <SUBJECT>Uniform contract format.</SUBJECT>
              <SECTNO>514.201-2</SECTNO>
              <SUBJECT>Part I—The Schedule.</SUBJECT>
              <SECTNO>514.201-6</SECTNO>
              <SUBJECT>Solicitation provisions.<PRTPAGE P="178"/>
              </SUBJECT>
              <SECTNO>514.201-7</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>514.202</SECTNO>
              <SUBJECT>General rules for solicitation of bids.</SUBJECT>
              <SECTNO>514.202-4</SECTNO>
              <SUBJECT>Bid samples.</SUBJECT>
              <SECTNO>514.203</SECTNO>
              <SUBJECT>Methods of soliciting bids.</SUBJECT>
              <SECTNO>514.203-1</SECTNO>
              <SUBJECT>Transmittal to prospective bidders.</SUBJECT>
              <SECTNO>514.270</SECTNO>
              <SUBJECT>Aggregate awards.</SUBJECT>
              <SECTNO>514.270-1</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>514.270-2</SECTNO>
              <SUBJECT>Guidelines for use.</SUBJECT>
              <SECTNO>514.270-3</SECTNO>
              <SUBJECT>Evaluation factors for award.</SUBJECT>
              <SECTNO>514.270-4</SECTNO>
              <SUBJECT>Grouping line items for aggregate award.</SUBJECT>
              <SECTNO>514.270-5</SECTNO>
              <SUBJECT>Evaluation methodologies for aggregate awards.</SUBJECT>
              <SECTNO>514.270-6</SECTNO>
              <SUBJECT>Guidelines for using the weight factors method.</SUBJECT>
              <SECTNO>514.270-7</SECTNO>
              <SUBJECT>Guidelines for using the price list method.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 514.4—Opening of Bids and Award of Contract</HD>
              <SECTNO>514.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
              <SECTNO>514.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <SECTNO>514.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37211, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 514.2—Solicitation of Bids</HD>
            <SECTION>
              <SECTNO>514.201</SECTNO>
              <SUBJECT>Preparation of invitations for bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>514.201-1</SECTNO>
              <SUBJECT>Uniform contract format.</SUBJECT>
              <P>Include the following notice in each solicitation:
              </P>
              <EXTRACT>
                <P>The information collection requirements contained in this solicitation/contract, are either required by regulation or approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act and assigned OMB Control No. 3090-0162.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>514.201-2</SECTNO>
              <SUBJECT>Part I—The Schedule.</SUBJECT>

              <P>(a) When you use Standard Form 33, Solicitation, Offer and Award, include the following cautionary notice:
              </P>
              <EXTRACT>

                <P>Notice to Bidders—Use Item 13 of the Standard Form 33, Solicitation, Offer and Award, to offer prompt payment discounts. The Prompt Payment clause of this solicitation sets forth payment terms. Do not insert any statement in Item 13 which requires payment sooner than the time stipulated in the Prompt Payment clause. <E T="03">Example:</E> If you insert “NET 20” in Item 13, GSA will reject your offer as nonresponsive because the entry contradicts the 30 day payment terms specified in the Prompt Payment clause.</P>
              </EXTRACT>
              
              <P>(b) When you use any other authorized form (e.g., Standard Form 1447, Solicitation/Contract), include the notice in paragraph (a) of this section. Change the reference to the form number, form title, and item number accordingly.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.201-6</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <P>When you will consider all or none bids, insert the provision at 552.214-70, “All or None” Offers, in the solicitation. For requirements or indefinite quantity contracts, use Alternate I. Do not include this provision in solicitations when you require the bidder to submit bids on all items and will make only one award.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.201-7</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) <E T="03">Stock replenishment contracts.</E> For some stock replenishment contracts, individual contractors may be unable to furnish the Government's monthly requirements. You may determine that progressive awards will be more expedient. In such cases, insert a clause substantially the same as the clause 552.214-71, Progressive Awards and Monthly Quantity Allocations, in the solicitation and contract.</P>
              <P>(b) <E T="03">Examinations of Records.</E> (1) Insert 552.214-70, Examination of Records by GSA, in solicitations and contracts for supplies or services that exceed $100,000, and acquisitions of leasehold interests in real property that exceed the simplified lease acquisition threshold, that meet at least one of the following conditions:</P>
              <P>(i) Involve the use or disposition of Government-furnished property.</P>
              <P>(ii) Provide for advance payments, progress payments based on cost, or guaranteed loan.</P>
              <P>(iii) Contain a price warranty or price reduction clause.</P>
              <P>(iv) Include an economic price adjustment clause where the adjustment is not based solely on an established, third party index.</P>
              <P>(v) Are requirements, indefinite-quantity, or letter contracts as defined in FAR part 16.</P>
              <P>(vi) Contain the provision at FAR 52.223-4, Recovered Materials Certification.</P>

              <P>(2) You may modify the clause to define the specific area of audit (e.g., the <PRTPAGE P="179"/>use or disposition of Government-furnished property). Legal Counsel and the Assistant Inspector General—Auditing or Regional Inspector General—Auditing, as appropriate, must concur in any modifications to the clause.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.202</SECTNO>
              <SUBJECT>General rules for solicitation of bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>514.202-4</SECTNO>
              <SUBJECT>Bid samples.</SUBJECT>
              <P>(a) <E T="03">Solicitation requirements.</E> (1) When you require bid samples, require bidders to submit samples produced by the manufacturer whose products will be supplied under the contract.</P>
              <P>(2) The FAR limits use of bid samples to cases where you cannot describe some characteristics of a product adequately in the specification or purchase description. This usually applies to subjective characteristics. You may determine that you need to examine objective characteristics of bid samples to determine the responsiveness of a bid. Base your determination on past experience or other valid considerations. In the solicitation, separately list “Subjective Characteristics” and “Objective Characteristics.”</P>
              <P>(3) A sample provision appears at 552.214-72, Bid Sample Requirements. You may use this provision as shown or modify it to fit the circumstances of a procurement.</P>
              <P>(b) <E T="03">Handling and disposition of samples.</E> (1) Retain samples from accepted bids for the period of contract performance. If you have no outstanding claims regarding the contract, dispose of the samples at the end of the contract term following the bidder's instructions.</P>
              <P>(2) If you anticipate a claim regarding the contract, retain the bid samples until the claim is resolved.</P>
              <P>(3) Retain samples from unsuccessful bids until you make award. After award, dispose of these samples following the bidder's instructions.</P>
              <P>(c) <E T="03">Using bid samples.</E> Include the information required by FAR 14.202-4(e) in the solicitation. Provide the number, size, and full description of samples with instructions on how to submit bids. List the characteristics that you will examine. The list needs to include any aspect of the bid sample the acquisition team will examine to determine the product(s) acceptability.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.203</SECTNO>
              <SUBJECT>Methods of soliciting bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>514.203-1</SECTNO>
              <SUBJECT>Transmittal to prospective bidders.</SUBJECT>
              <P>Prospective bidders, as used in FAR 14.203-1, include both the following:</P>
              <P>(a) The incumbent contractor, except when its written response to the notice of contract action under FAR subpart 5.2 states a negative interest.</P>
              <P>(b) Bidders that responded to recent solicitations for the same or similar items.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270</SECTNO>
              <SUBJECT>Aggregate awards.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-1</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>
                <E T="03">Aggregate award</E> means an arrangement whereby two or more separately-priced line items are combined for award to that bidder whose bid will result in the lowest overall cost to the Government for the line items as a group. The individual price for each item does not have to be the lowest bid received. (See also the definition of a “line item” in FAR 3.302.)</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-2</SECTNO>
              <SUBJECT>Guidelines for use.</SUBJECT>
              <P>(a) GSA usually solicits prices and reserves the right to make award for individual line items. In some cases it serves GSA's best interest to combine two or more line items for an aggregate award. Such cases include when:</P>
              <P>(1) Users desire uniformity of design, style, and finish (e.g., suites of household furniture).</P>
              <P>(2) The articles will be assembled and used as a unit, and different manufacturers' components may not be interchangeable.</P>
              <P>(3) Users have high demand for certain articles, but demand for related articles is insufficient to attract competitive bids (e.g., various sized of socket wrenches). Awarding the low-demand articles in conjunction with the high-demand articles may encourage competition.</P>

              <P>(4) One location (delivery point) has a large requirement, and another location has a requirement too small to individually attract competitive bids.<PRTPAGE P="180"/>
              </P>
              <P>(5) Awarding and administering numerous small contracts for similar articles or services is impractical.</P>
              <P>(b) Before deciding to combine items for aggregate award, consider the following factors:</P>
              <P>(1) The capability of bidders to furnish the types and quantities of supplies or services in the aggregate.</P>
              <P>(2) How grouping delivery points will affect bidders.</P>
              <P>(3) Which combinations will accurately project the lowest overall cost to the Government.</P>
              <P>(c) Do not use an aggregate award if it will significantly restrict the number of eligible bidders.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-3</SECTNO>
              <SUBJECT>Evaluation factors for award.</SUBJECT>
              <P>Clearly state in the solicitation the basis for evaluating bids for aggregate award. Require bidders to submit a price on each item within the group or a percentage to be added or subtracted from a list price. Advise bidders that failure to submit prices as required within a group makes a bid ineligible for award for that group.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-4</SECTNO>
              <SUBJECT>Grouping line items for aggregate award.</SUBJECT>
              <P>(a) <E T="03">Type of contract.</E> While this section addresses supply contracts (articles and delivery points), the same principles apply to service contracts (types of services and service areas).</P>
              <P>(b) <E T="03">Effect on compeition.</E> Provide for full and open competition when you group items for award. Grouping items for award may preclude a significant of firms from bidding. This occurs if firms are unable to provide all the types or quanities of supplies or services, or make deliveries to the various delivery points included in the prospective aggregate group.</P>
              <P>(c) <E T="03">Grouping different articles.</E> Include only related articles in an aggregate group. Related articles are those normally manufactured or produced by a majority of prospective bidders. Grouping unrelated articles often restricts competition unnecessarily.</P>
              <P>(d) <E T="03">Grouping geographic locations or delivery points.</E> Consider the following guidelines before deciding to group different geographic locations or delivery points:</P>
              <P>(1) A delivery point may have sufficient requirements so that individual shipments involve economic production runs and carload or truckload quanities. In this case, list it as a separate line item.</P>
              <P>(2) The types of bidders (<E T="03">i.e.,</E> small or large firms, manufacturers or distributors, etc.) who respond to previous solicitations can provide important information. For example, if previous bidders are distributors with franchises in certain territories, grouping different territories could tend to restrict competition.</P>
              <P>(3) Transportation costs can affect competition and pricing. They may constitute a significant portion of the total delivered cost. Obtain the advice and assistance of transportation specialists before grouping geographic locations or delivery points. Depending upon the supplies being acquired:</P>
              <P>(i) Grouping widespread geographic locations or delivery points may reduce competition or result in higher prices. It can cause you to lose “area pricing” advantages provided by a supplier with a single production point.</P>
              <P>(ii) Conversely, for many small commercial items (hand tools, locks, etc.), manufacturers may quote the same price for delivery anywhere in the U.S.</P>
              <P>(iii) Tariff boundaries can also affect how manufacturers price deliveries to different areas.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-5</SECTNO>
              <SUBJECT>Evaluation methodologies for aggregate awards.</SUBJECT>
              <P>(a) <E T="03">Definite quantity contracts without options.</E> For definite quantity contracts without options, the evaluated bid price is the total bid price, as adjusted for any price-related factors identified in the solicitation. This reflects the actual cost to the Government and will identify the most advantageous bid.</P>
              <P>(b) <E T="03">Indefinite quantity contracts, requirements contracts, and options.</E> Indefinite quantity and requirements contracts use estimated quantities. Options involve the probability of whether and when the options will be exercised. These situations may result in unbalanced bids (see FAR 15.404-1(g)), leading to inaccurate evaluation of the projected cost and award to other than the most advantageous bid. To avoid <PRTPAGE P="181"/>unbalanced bids, GSA has two preferred methods for evaluating bids for aggregate awards: weight factors and price list.</P>
              <P>(1) <E T="03">Weight factors method.</E> Assign a weight to each item in a group. The weight is based on the portion of quantities that item represents. To evaluate bids, multiply each unit price by its weight factor, then total the results.</P>
              <P>(2) <E T="03">Price list method.</E> Establish prices for bidders to use as a base for preparing their bids. Prepare a list that identifies a base price for each item in a group. Bidders bid a percentage factor to add to or subtract from the base price.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-6</SECTNO>
              <SUBJECT>Guidelines for using the weight factors method.</SUBJECT>
              <P>(a) Use the weight factors method when you have reliable estimates for the quantities needed in an acquisition. Reliable estimates of quantities form the foundation for:</P>
              <P>(1) Accurate evaluation of the projected cost of each bid.</P>
              <P>(2) An appropriate determination of which bid is most advantageous to the Government for the aggregate group.</P>
              <P>(b) Assign a weight factor to each item in a group. Develop the weight factor by calculating the portion of the total quantity in a defined group that each item represents.</P>
              <P>(c) To evaluate bid prices, first multiply the price bid for each item (unit price X quantity) by its weight factor. Then, add the subtotals together to project the cost for the aggregate group.</P>
              <P>(d) You may reduce estimated quantities to smaller numbers by a common denominator. This may help facilitate the computations involved in evaluating bids.</P>
              <P>(e) Consider all price-related factors you identified in the solicitation. Award to the responsive and responsible bidder with the lowest evaluated overall cost to the Government for the aggregate group. This represents the most advantageous bid.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.270-7</SECTNO>
              <SUBJECT>Guidelines for using the price list method.</SUBJECT>
              <P>(a) <E T="03">General.</E> The price list method helps avoid unbalanced bidding when you need to make aggregate awards, but lack accurate estimates of anticipated quantities. This method establishes base prices for bidders to use in preparing their bids.</P>
              <P>(b) <E T="03">Solicitation requirements.</E> When you use the price list methods, in the solicitation:</P>
              <P>(1) Include the price list.</P>
              <P>(2) Include an estimate of requirements.</P>
              <P>(3) Require the bidder to express its price as “net” or as a percentage added to or subtracted from the list prices for each group. Require the bidder to quote only one percentage factor for each group. This means that the bidder provides one percentage factor that applies to every item in a group; not a separate percentage for each item. “Net” indicates the bidder chooses to submit the list prices as its bid.</P>
              <P>(4) Identify the percentage factor in paragraph (b)(3) of this section as a price related evaluation factor.</P>
              <P>(c) <E T="03">Developing list prices.</E> You may develop price lists using one or more of the following sources:</P>
              <P>(1) Industry published prices.</P>
              <P>(2) Industry surveys.</P>
              <P>(3) Government cost estimates based on knowledge of the supplies or services and previous contract prices.</P>
              <P>(d) <E T="03">First time use for an item or service.</E> The first time you use list prices for an item or service, give prospective bidders an opportunity to review the proposed list. Also provide information on how GSA will use the list prices. You may provide this information in a draft solicitation.</P>
              <P>(e) <E T="03">Balanced prices.</E> Ensure that the list prices for the grouped items bear a reasonable and balanced relationship to one another. You may use prices from previous awards made using the weight factors method to develop price lists. Review those prices first to ensure they did not result from unbalanced bidding.</P>
              <P>(f) <E T="03">Evaluation and award.</E> Consider all price-related factors identified in the solicitation. Award to the responsive and responsible bidder whose percentage factor produces the most favorable price to the Government. This represents the most advantageous bid.</P>
              <P>(g) <E T="03">Example.</E> The following illustrates a bidding schedule arrangement for a <PRTPAGE P="182"/>group of items for aggregate award under the price list method:</P>
              <GPOTABLE CDEF="xs36,18,xs36,12,xs36,12" COLS="6" OPTS="L2">
                <TTITLE>Drills, Twist, High Speed, Under Federal Specification (No. and Date), and Amendment (No. and Date), Amendment (No. and Date) Wire Gauge Sizes, Straight Shank, Short Length, Type C</TTITLE>
                <BOXHD>
                  <CHED H="1">Item No.</CHED>
                  <CHED H="1">National Stock No.</CHED>
                  <CHED H="1">Drill size</CHED>
                  <CHED H="1">Est. quantity</CHED>
                  <CHED H="1">Unit</CHED>
                  <CHED H="1">List price</CHED>
                </BOXHD>
                <ROW EXPSTB="05" RUL="s">
                  <ENT I="21">Group 1 (Items 1 through 5) </ENT>
                </ROW>
                <ROW EXPSTB="00">
                  <ENT I="01">1</ENT>
                  <ENT>5133-00-189-9246</ENT>
                  <ENT>1</ENT>
                  <ENT>2,800</ENT>
                  <ENT>Pkg</ENT>
                  <ENT>$11.16</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">2</ENT>
                  <ENT>5133-00-189-9247</ENT>
                  <ENT>2</ENT>
                  <ENT>2,400</ENT>
                  <ENT>Pkg</ENT>
                  <ENT>11.16</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">3</ENT>
                  <ENT>5133-00-189-9248</ENT>
                  <ENT>3</ENT>
                  <ENT>2,800</ENT>
                  <ENT>Pkg</ENT>
                  <ENT>10.44</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">4</ENT>
                  <ENT>5133-00-189-9249</ENT>
                  <ENT>4</ENT>
                  <ENT>1,600</ENT>
                  <ENT>Pkg</ENT>
                  <ENT>10.80</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">5</ENT>
                  <ENT>5133-00-189-9250</ENT>
                  <ENT>5</ENT>
                  <ENT>2,000</ENT>
                  <ENT>Pkg</ENT>
                  <ENT>10.80</ENT>
                </ROW>
              </GPOTABLE>
              <P>The bid on each item above is the list price shown minus/plus __ percent. (Bidder, insert “net” or a single percentage amount in the blank space and cross out minus or plus, as appropriate.)</P>
              <P>(h) <E T="03">Special considerations for contracts for store stock items.</E> Show estimated quantities only if estimates of demand for each item within a group can be derived from Government records or verified contractor sales reports. Use only current estimates. If you cannot estimate the Government's needs, the solicitation may include past orders. (See CG Decision, B-209037, 82-2 CPD para 323 (1982).)</P>
              <P>(i) <E T="03">Special considerations for repair and alteration contracts.</E> In the solicitation:</P>
              <P>(1) List the estimated quantities for work to be performed during both normal working hours and outside of normal working hours.</P>
              <P>(2) State the percent of work anticipated to be performed during normal working hours.</P>
              <P>(3) List the unit prices for work to be performed during both normal working hours and outside of normal working hours.</P>
              <P>(4) Define “normal” in terms of hours and days of the week.</P>
              <P>(5) Advise bidders of the previous year's total expenditures or portions of that total attributable to the listed items.</P>
              <P>(6) If you provide quantity estimates, state that the estimates are for information only and do not constitute guarantees or commitments to order items under the contract.</P>
              <P>(7) Solicit two percentage factors for the line item unit prices listed: one for the unit prices for work performed during normal working hours and the second for the unit prices for work performed outside of normal working hours.</P>
              <P>(8) You may require multiple percentages when the solicitation further groups unit prices by trade or business category.</P>
              <P>(9) For the evaluated bid price, add together the following percentages:</P>
              <P>(i) The percentage of work performed during normal work hours multiplied by the total estimate adjusted by the bidder's percentage factor for that portion of the work, plus</P>
              <P>(ii) The percentage of work performed during other than normal working hours multiplied by the total estimate adjusted by the bidder's percentage factor for that portion of the work.</P>
              <P>(10) Consider other price-related factors identified in the solicitation. Make award to the responsible and responsive bidder submitting the lowest overall evaluated bid price for the aggregate group. This represents the most advantageous bid.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 514.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>514.407</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>514.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>(a) <E T="03">Delegation of authority by head of the agency.</E> Under FAR 14.407-3(e), contracting directors (see 502.101) are authorized, without power of redelegation, to make:<PRTPAGE P="183"/>
              </P>
              <P>(1) The determinations regarding corrections and withdrawals under FAR 14.407-3(a), (b), and (c).</P>
              <P>(2) The corollary determinations not to permit withdrawal or correction under FAR 14.407-3(d).</P>
              <P>(b) <E T="03">Legal review and approval.</E> Assigned counsel must approve determinations by the contracting director and contracting officer regarding mistakes in bid.</P>
            </SECTION>
            <SECTION>
              <SECTNO>514.407-4</SECTNO>
              <SUBJECT>Mistakes after award.</SUBJECT>
              <P>The contracting director and assigned counsel review and approve your determinations under FAR 14.407-4(b) and (c).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 515</EAR>
          <HD SOURCE="HED">PART 515—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 515.2—Solicitation and Receipt of Proposals and Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>515.204</SECTNO>
              <SUBJECT>Contract format.</SUBJECT>
              <SECTNO>515.204-1</SECTNO>
              <SUBJECT>Uniform contract format.</SUBJECT>
              <SECTNO>515.205</SECTNO>
              <SUBJECT>Issuing solicitations.</SUBJECT>
              <SECTNO>515.209</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <SECTNO>515.209-70</SECTNO>
              <SUBJECT>Examination of records by GSA clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 515.3—Source Selection</HD>
              <SECTNO>515.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <SECTNO>515.305-70</SECTNO>
              <SUBJECT>Use of outside evaluators.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 515.4—Contract Pricing</HD>
              <SECTNO>515.408</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 515.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes</HD>
              <SECTNO>515.506</SECTNO>
              <SUBJECT>Postaward debriefing of offerors.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 515.70—Use of Samples</HD>
              <SECTNO>515.7002</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37214, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 515.2—Solicitation and Receipt of Proposals and Information</HD>
            <SECTION>
              <SECTNO>515.204</SECTNO>
              <SUBJECT>Contract format.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>515.204-1</SECTNO>
              <SUBJECT>Uniform contract format.</SUBJECT>
              <P>(a) The uniform contract format is not required for leases of real property.</P>
              <P>(b) Each solicitation and contract must include the two notices in paragraphs (b)(1) and (b)(2) of this section, except that acquisitions of interests in real property, must include only the notice in (b)(1):</P>
              <P>(1) “The information collection requirements contained in this solicitation/contract are either required by regulation or approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act and assigned OMB Control No. 3090-0163.”</P>
              <P>(2) “GSA's hours of operation are 8:00 a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or otherwise submitted after 4:30 p.m. will be considered submitted the following business day. Requests for postaward debriefings delivered after 4:30 p.m. will be considered received and filed the following business day.”</P>
            </SECTION>
            <SECTION>
              <SECTNO>515.205</SECTNO>
              <SUBJECT>Issuing solicitations.</SUBJECT>
              <P>Potential sources, as used in FAR 15.205, include both of the following:</P>
              <P>(a) The incumbent contractor, except when its written response to the notice of contract action under FAR subpart 5.2 states a negative interest.</P>
              <P>(b) Offerors that responded to recent solicitations for the same or similar items.</P>
            </SECTION>
            <SECTION>
              <SECTNO>515.209</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>515.209-70</SECTNO>
              <SUBJECT>Examination of records by GSA clause.</SUBJECT>
              <HD SOURCE="HD2">Clause for Other Than Multiple Award Schedules</HD>

              <P>(a) For other than multiple award schedule (MAS) contracts, insert the clause at 552.215-70, Examination of Records by GSA, in solicitations and contracts over $100,000, including acquisitions of leasehold interests in real property, that meet any of the following conditions:<PRTPAGE P="184"/>
              </P>
              <P>(1) Involve the use or disposition of Government-furnished property.</P>
              <P>(2) Provide for advance payments, progress payments based on cost, or guaranteed loan.</P>
              <P>(3) Contain a price warranty or price reduction clause.</P>
              <P>(4) Involve income to the Government where income is based on operations under the control of the contractor.</P>
              <P>(5) Include an economic price adjustment clause where the adjustment is not based solely on an established, third party index.</P>
              <P>(6) Are requirements, indefinite-quantity, or letter type contracts as defined in FAR part 6.</P>
              <P>(7) Are subject to adjustment based on a negotiated cost escalation base.</P>
              <P>(8) Contain the provision of FAR 52.223-4, Recovered Material Certification.</P>
              <P>(b) You may modify the clause at 552.215-70 to define the specific area of audit (e.g., the use or disposition of Government-furnished property, compliance with the price reduction clause). Counsel and the Assistant Inspector General—Auditing or Regional Inspector General—Auditing, as appropriate, must concur in any modifications to the clause.</P>
              <HD SOURCE="HD2">Clause for Multiple Award Schedules</HD>
              <P>(c) Insert the clause at 552.215-71, Examination of Records by GSA (Multiple Award Schedule), in solicitations and contracts for MAS contracts.</P>
              <P>(d) With the Senior Procurement's Executive approval, you may modify the clause at 552.215-71 to provide for post-award access to and the right to examine records to verify that the pre-award/modification pricing, sales or other data related to the supplies or services offered under the contract which formed the basis for the award/modification was accurate, current, and complete. The following procedures apply:</P>
              <P>(1) Such a modification of the clause must provide for the right of access to expire 2 years after award or modification.</P>
              <P>(2) Before modifying the clause, you must make a determination that absent such access there is a likelihood of significant harm to the Government and submit it to the Senior Procurement Executive for approval.</P>
              <P>(3) The determinations under paragraph (d)(2) of this section must be made on a schedule-by-schedule basis.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 515.3—Source Selection</HD>
            <SECTION>
              <SECTNO>515.305</SECTNO>
              <SUBJECT>Proposal evaluation.</SUBJECT>
              <P>(a) <E T="03">Restrictions placed on a proposal by the submitter.</E> If you receive a proposal with more restrictive conditions than those in the provision at FAR 52.215-1(e), ask whether the submitter is willing to accept the conditions of the paragraph at FAR 52.215-1(e). If the submitter refuses, consult with legal counsel on whether to accept the proposal as marked or return it.</P>
              <P>(b) <E T="03">Actions before releasing proposal.</E> Before releasing any proposal to an evaluator you must take all the following actions:</P>
              <P>(1) Obtain the signed original “Conflict of Interest Acknowledgment and Nondisclosure Agreement” from each Government and nongovernment individual serving as an evaluator. Use the Acknowledgment/Agreement in Figure 515.3-1.</P>
              <P>(i) For employees of other Executive agencies, replace the reference in paragraph (c) of the Acknowledgement/Agreement to GSA's supplemental standards with a reference to the applicable agency.</P>

              <P>(ii) for nongovernment evaluators, substitute paragraph (c) of the Acknowledgement/Agreement with the following language and delete paragraph (h):
              </P>
              <EXTRACT>
                <P>(c) I have read and understand the requirements of subsection 27(a) and 27(b) of the Office of Federal Procurement Policy Act (41 U.S.C. 423).</P>
              </EXTRACT>
              
              <P>(2) Attach to each proposal a cover page bearing the following notice:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Government Notice for Handling Proposals</HD>
                <P>To anyone receiving this proposal or proposal abstract:</P>
                <P>(1) This proposal must be used and disclosed for evaluation purposes only.</P>
                <P>(2) You must apply a copy of this Government notice to any reproduction or abstract of this proposal.</P>

                <P>(3) You must comply strictly with any authorized restrictive notices which the submitter places on this proposal.<PRTPAGE P="185"/>
                </P>
                <P>(4) You must <E T="03">not</E> disclose this proposal outside the Government for evaluation purposes except to the extent authorized by, and in accordance with, the procedures in 48 CFR 515.305-71.</P>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>515.305-70</SECTNO>
              <SUBJECT>Use of outside evaluators.</SUBJECT>
              <P>(a) <E T="03">Conditions.</E> To use outside evaluators, you must meet the restrictions in FAR 37.203 and 537.2.</P>
              <P>(b) <E T="03">Limitations on disclosing proposal information.</E> You may disclose proposal information outside the Government before the Government's decision as to contract award only to the extent authorized in this section. Disclosure and handling must comply with FAR 3.1 and 503.1.</P>
              <P>(c) <E T="03">Solicitation notice.</E> Include in the solicitation a notice substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notice About Releasing Proposals</HD>
                <P>(1) The Government intends to disclose proposals received in response to this solicitation to nongovernment evaluators.</P>
                <P>(2) Each evaluator will sign and provide to GSA a “Conflict of Interest Acknowledgment and Nondisclosure Agreement.”</P>
              </EXTRACT>
              <HD SOURCE="HD1">Figure 515.3-1—Conflict of Interest Acknowledgment and Nondisclosure Agreement</HD>
              <EXTRACT>
                <HD SOURCE="HD1">Conflict of Interest Acknowledgment and Nondisclosure Agreement</HD>
                <P>For proposals submitted in response to GAS solicitation no. ____, I agree to the following:</P>
                <P>(a) To the best of my knowledge and belief, no conflict of interest exists that may either:</P>
                <P>(1) Diminish my capacity to impartially review the proposals submitted.</P>
                <P>(2) Or result in a biased opinion or unfair advantage.</P>
                <P>(b) In making the above statement, I have considered all the following factors that might place me in a position of conflict, real or apparent, with the evaluation proceedings:</P>
                <P>(1) All my stocks, bonds, other outstanding financial interests or commitments.</P>
                <P>(2) All my employment arrangements (past, present, and under consideration).</P>
                <P>(3) As far as I know, all financial interests and employment arrangements of my spouse, minor children, and other members of my immediate household.</P>
                <P>(c) I have read and understand the requirements of the Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR Part 2635) and Supplemental Standards of Ethical Conduct for Employees of the General Service Administration (5 CFR Part 6701).</P>
                <P>(d) I have a continuing obligation to disclose any circumstances that may create an actual or apparent conflict of interest. If I learn of any such conflict, I will report it immediately to the Contracting Officer. I will perform no more duties related to evaluating proposals until I receive instructions on the matter.</P>
                <P>(e) I will use proposal information for evaluation purposes only. I understand that any authorized restriction on disclosure placed on the proposal by the prospective contractor, prospective subcontractor, or the Government applies to any reproduction or abstracted information of the proposal.</P>
                <P>(f) I will use my best efforts to safeguard proposal information physically. I will not disclose the contents of, nor release any information about, the proposals to anyone other than:</P>
                <P>(1) The Source Selection Evaluation Board or other panel assembled to evaluate proposals submitted in response to the solicitation identified above.</P>
                <P>(2) Other individuals designed by the contracting Officer.</P>
                <P>(g) After completing evaluation, I will return to the Government all copies of the proposals and any abstracts.</P>

                <P>(h) GSA Appropriations Act restriction: These restrictions are consistent with and do not supersede, conflict with or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosure of Congress); section 1034 of title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); section 2302(b)(8) of title 5, United States Codes, as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 <E T="03">et seq.</E>) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b). The definitions, requirements, obligations, rights, sanctions, and liabilities created by said Executive order and listed statutes are incorporated into this agreement and are controlling.</P>
                <FP SOURCE="FP-DASH"/>
                <FP>(Enter name of evaluator and organization)</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>Date</FP>
              </EXTRACT>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="186"/>
            <HD SOURCE="HED">Subpart 515.4—Contract Pricing</HD>
            <SECTION>
              <SECTNO>515.408</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <EXTRACT>
                <HD SOURCE="HD1">MAS Requests for Information Other Than Cost or Pricing Data</HD>
                <P>(a) You should use Alternative IV of the FAR provision at 52.215-20, Requirements for Cost or Pricing Data or Information Other than Cost or Pricing Data, for MAS contracts to provide the format for submission of information other than cost or pricing data for MAS contracts. To provide uniformity in request under the MAS program, you should insert the following in paragraph (b) of the provision:</P>
                <P>(1) An offer prepared and submitted in accordance with the clause at 552.212-70, Preparation of Offer (Multuiple Award Schedule).</P>
                <P>(2) Commercial sales practices. The Offeror shall submit information in the format provided in this solicitation in accordance with the instructions at Figure 515.4 of the GSA Acquisition Regulation (48 CFR 515-2), or submit information in the Offeror's own format.</P>
                <P>(3) Any additional supporting information requested by the Contracting Officer. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether the price(s) offered is fair and reasonable.</P>
                <P>(4) By submission of an offer in response to this solicitation, the Offeror grants the Contracting Officer or an authorized representative the right to examine, at any time before initial award, books, records, documents, papers, and other directly pertinent records to verify the pricing, sales and other data related to the supplies or services proposed in order to determine the reasonableness of price(s). Access does not extend to Offeror's cost or profit information of other data relevant solely to the Offeror's determination of the prices to be offered in the catalog or marketplace.</P>
                <P>(b) Insert the following format for commercial sales practices in the exhibits or attachments section of the solicitation and resulting contract (see FAR 12.303).</P>
                <HD SOURCE="HD1">Commercial Sales Practices Format</HD>
                <FP SOURCE="FP-1">Name of Offeror _____ SIN(s) ___</FP>
                
                <NOTE>
                  <HD SOURCE="HED">Note:</HD>
                  <P>Please refer to Clause 552.212-70, Preparation of Offer (Multiple Award Schedule), for additional information concerning your offer. Provide the following information for each SIN (or group of SINs or SubSIN for which information is the same).</P>
                </NOTE>
                
                <P>(1) Provide the dollar value of sales to the general public at or based on an established catalog or market price during the previous 12-month period or the offerors last fiscal year: $____. State beginning and ending of the 12 month period. Beginning ____ ending ____. In the event that a dollar value is not an appropriate measure of the sales, provide and describe your own measure of the sales of the item(s).</P>

                <P>(2) Show your total projected annual sales to the Government under this contract for the contract term, excluding options, for each SIN offered. If you currently hold a Federal Supply Schedule contract for the SIN the total projected annual sales should be based on your mostrecent 12 months of sales under that contract.
                </P>
                <FP SOURCE="FP-1">SIN ______$______</FP>
                <FP SOURCE="FP-1">SIN ______$______</FP>
                <FP SOURCE="FP-1">SIN ______$______</FP>
                
                <P>(3) Based on your written discounting policies (standard commercial sales practices in the event you do not have written discounting policies), are the discounts and any concessions which you offer the Government equal to or better than your best price (discount and concessions in any combination) offered to any customer acquiring the same items regardless of quantity or terms and conditions? YES__ NO__ (See definition of “concession” and “discount” in 552.212-70.)</P>
                <P>(4)(a) Based on your written discounting policies (standard commercial sales practices in the event you do not have written discounting policies), provide information as requested for each SIN (or group of SINs for which the information is the same) in accordance with the instructions at Figure 515.4, which is provided in this solicitation for your convenience. The information should be provided in the chart below or in an equivalent format developed by the offeror. Rows should be added to accommodate as many customers as required.</P>
                <GPOTABLE CDEF="s50,r50,r50,r50,r50" COLS="5" OPTS="L2">
                  <BOXHD>
                    <CHED H="1">Column 1<LI>Customer</LI>
                    </CHED>
                    <CHED H="1">Column 2<LI>Discount</LI>
                    </CHED>
                    <CHED H="1">Column 3<LI>Quantity/Volume</LI>
                    </CHED>
                    <CHED H="1">Column 4<LI>FOB Term</LI>
                    </CHED>
                    <CHED H="1">Column 5<LI>Concessions</LI>
                    </CHED>
                  </BOXHD>
                  <ROW>
                    <ENT I="22"/>
                  </ROW>
                  <ROW>
                    <ENT I="22"/>
                  </ROW>
                  <ROW>
                    <ENT I="22"/>
                  </ROW>
                </GPOTABLE>

                <P>(b) Do any deviations from your written policies or standard commercial sales practices disclosed in the above chart ever result in better discounts (lower prices) or concessions than indicated? YES_ NO_. If YES, <PRTPAGE P="187"/>explain deviations in accordance with the instructions at Figure 515.4, which is provided in this solicitation for your convenience.</P>
                <P>(5) If you are a dealer/reseller without significant sales to the general public, you should provide manufacturers' information required by paragraphs (1) through (4) above for each item/SINoffered, if the manufacturer's sales under any resulting contract are expected to exceed $500,000. You must also obtain written authorization from the manufacturer(s) for Government access, at any time before award or before agreeing to a modification, to the manufacturer's sales records for the purpose of verifying the information submitted by the manufacturer. The information is required in order to enable the Government to make a determination that the offered price is fair and reasonable. To expedite the review and processing of offers, you should advise the manufacturer(s) of this requirement. The contracting officer may require the information be submitted on electronic media with commercially available spreadsheet(s). The information may be provided by the manufacturer directly to the Government. If the manufacturer's item(s) is being offered by multiple dealers/resellers, only one copy of the requested information should be submitted to the Government. In addition, you must submit the following information along with a listing of contact information regarding each of the manufacturers whose products and/or services are included in the offer (include the manufacturer's name, address, the manufacturer's contact point, telephone number, and FAX number) for each model offered by SIN:</P>
                <P>(a) Manufacturer's Name.</P>
                <P>(b) Manufacturer's Part Number.</P>
                <P>(c) Dealer's/Reseller's Part Number.</P>
                <P>(d) Product Description.</P>
                <P>(e) Manufacturer's List Price.</P>

                <P>(f) Dealer's/Reseller's percentage discount from list price or net prices.
                </P>
                <HD SOURCE="HD3">(End of format)</HD>
                
                <P>(c) Include the instructions for completing the commercial sales practices format in Figure 515.4 in solicitations issued under the MAS program.</P>
              </EXTRACT>
              <EXTRACT>
                <HD SOURCE="HD1">Figure 515.4—Instructions for Commercial Sales Practices Format</HD>
                <P>If you responded “yes” to question (3), on the Commercial Sales Practices Format in paragraph (b) of this section, complete the chart in question (4)(a) for the customer(s) who receive your best discount. If you responded “no”, complete the chart in question (4)(a) showing your written policies or standard sales practices for all customers or customer categories to whom you sell at a price (discounts and concessions in combination) that is equal to or better than the price(s) offered to the Government under this solicitation or with which the Offeror has a current agreement to sell at a discount which equals or exceeds the discount(s) offered under this solicitation. Such agreement shall be in effect on the date the offer is submitted or contain an effective date during the proposed multiple award schedule contract period. If your offer is lower than your price to other customers or customers categories, you will be aligned with the customer or category of customer that receives your best price for purposes of the Price Reductions clause at 552.238-75. The Government expects you to provide information required by the format in accordance with these instructions that is, to the best of your knowledge and belief, current, accurate, and complete as of 14 calender days prior to its submission. You must also disclose any changes in your price list(s), discounts and/or discounting policies which occur after the offer is submitted, but before the close of negotiations. If your discount practices vary by model or product line, the discount information should be by model or product line as appropriate. You may limit the number of models or product lines reported to those which exceed 75% of actual historical Government sales (commercial sales may be substituted if Government sales are unavailable) value of the special item number (SIN).</P>
                <HD SOURCE="HD1">Column 1—Identify the Applicable Customer or Category of Customer</HD>
                <P>A “customer” is any entity, except the Federal Government, which acquires supplies or services from the Offeror. The term customer includes, but is not limited to original equipment manufacturers, value added resellers, state and local Governments, distributors, educational institutions (an elementary, junior high, or degree granting school which maintains a regular faculty and established curriculum and an organized body of students), dealers, national accounts, and end users. In any instance where the Offeror is asked to disclose information for a customer, the Offeror may disclose information by category of customer if the Offeror's discount policies or practices are the same for all customers in the category. (Use a separate line for each customer or category of customer.)</P>
                <HD SOURCE="HD1">Column 2—Identify the Discount</HD>

                <P>The term “discount” is as defined in solicitation clause 552.212-70, Preparation of Offer (Multiple Award Schedule). Indicate the best discount (based on your written discounting policies or standard commercial discounting practices if you do not have written discounting policies) at which you sell to the customer or category of customer identified in column 1, without regard to quantity; terms and conditions of the agreements under which the discounts are given; and <PRTPAGE P="188"/>whether the agreements are written or oral. Net prices or discounts off of other price lists should be expressed as percentage discounts from the price list which is the basis of your offer. If the discount disclosed is a combination of various discounts (prompt payment, quantity, etc.), the percentage should be broken out for each type of discount. If the price lists which are the basis of the discounts given to the customers identified in the chart are different than the price list submitted upon which your offer is based, identify the type or title and date of each price list. The contracting officer may require submission of these price lists. To expedite evaluation, offerors may provide these price lists at the time of submission.</P>
                <HD SOURCE="HD1">Column 3—Identify the Quantity or Volume of Sales</HD>
                <P>Insert the minimum quantity or sales volume which the identified customer or category of customer must either purchase/order, per order or within a specified period, to earn a discount indicate the time period.</P>
                <HD SOURCE="HD1">Column 4—Indicate the FOB Delivery Term for Each Identified Customer</HD>
                <P>See FAR 47.3 for an explanation of FOB delivery terms.</P>
                <HD SOURCE="HD1">Column 5—Indicate Concessions Regardless of Quantity Granted to the Identified Customer or Category of Customer</HD>
                <P>Concessions are defined in solicitation clause 552.12-70, Preparation of Offers (Multiple Award Schedule). If the space provided is inadequate, the disclosure should be made on a separate sheet by reference.</P>
                <P>If you respond “yes” to question 4(b) in the Commercial Sales Practices Format, provide an explanation of the circumstances under which you deviate from your written policies or standard commercial sales practices disclosed in the chart on the Commercial Sales Practices Format and explain how often they occur. Your explanation should include a discussion of situations that lead to deviations from standard practice, an explanation of how often they occur, and the controls you employ to assure the integrity of your pricing. Examples of typical deviations may include, but are not limited to, one time goodwill discounts to charity organizations or to compensate an otherwise disgruntled customer; a limited sale of obsolete or damaged goods; the sale of sample goods to a new customer, or the sales of prototype goods for testing purposes.</P>
                <P>If deviations from your written policies or standard commercial sales practices disclosed in the chart on the Commercial Sales Practices Format are so significant and/or frequent that the Contracting Officer cannot establish whether the price(s) offered is fair and reasonable, then you may be asked to provide additional information. The Contracting Officer may ask for information to demonstrate that you have made substantial sales of the item(s) in the commercial market consistent with the information reflected on the chart on the Commercial Sales Practices Format, a description of the conditions surrounding those sales deviations, or other information that may be necessary in order for the Contracting Officer to determine whether your offered price(s) is fair and reasonable. In cases where additional information is requested the Contracting Officer will target the request in order to limit the submission of data to that needed to establish the reasonableness of the offered price.</P>
                <HD SOURCE="HD3">(End of figure)</HD>
                <P>(d) Insert the clause at 552.215-72, Price Adjustment—Failure to Provide Accurate Information, in solicitations and contracts under the MAS program.</P>
                <P>(e) You should use Alternate IV of FAR 52.215-21, Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data—Modifications, to provide for submission of information other than cost or pricing data for MAS contracts. To provide for uniformity in requests under the MAS program, you should insert the following in paragraph (b) of the clause:</P>
                <P>(1) Information required by the clause at 552.243-72, Modifications (Multiple Award Schedule).</P>
                <P>(2) Any additional supporting information requested by the Contracting Officer. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether the price(s) offered is fair and reasonable.</P>
                <P>(3) By submitting a request for modification, the Contractor grants the Contracting Officer or an authorized representative the right to examine, at any time before agreeing to a modification, books, record, documents, papers, and other directly pertinent records to verify the pricing, sales and other data related to the supplies or services proposed in order to determine the reasonableness of price(s). Access does not extent to Contractor's cost or profit information or other data related solely to the Contractor's determination of the prices to be offered in the catalog or marketplace.</P>
              </EXTRACT>
              <CITA>[64 FR 37214, July 9, 1999, as amended at 65 FR 11247, Mar. 2, 2000]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="189"/>
            <HD SOURCE="HED">Subpart 515.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes</HD>
            <SECTION>
              <SECTNO>515.506</SECTNO>
              <SUBJECT>Postaward debriefing of offerors.</SUBJECT>
              <P>For purposes of determining the date of receipt of a request for a post award debriefing, GSA's hours of operation are 8:00 a.m. to 4:30 p.m. Request received after 4:30 p.m. will be considered received the following business day.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 515.70—Use of Samples</HD>
            <SECTION>
              <SECTNO>515.7002</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Unsolicited samples.</E> The reference to FAR 14.404-2(d) in FAR 14.202-4(g) does not apply.
              </P>
              <EXTRACT>
                <P>However, qualifications in the proposal that are at variance with the Government's requirements, constitute deficiencies. Resolve these as provided in FAR 15.306.</P>
              </EXTRACT>
              
              <P>(b) <E T="03">Solicitation requirements.</E>
              </P>

              <P>(1) Use the clause at FR 52.214-20. The second sentence in paragraph (c) of the clause does not apply. Substitute a sentence substantially as follows:
              </P>
              <EXTRACT>
                <P>Failure of the bid samples to conform to all the required characteristics listed in the solicitation constitutes a deficiency in the proposal (see FAR 15.306).</P>
              </EXTRACT>
              
              <P>(2) In addition to listing subjective characteristics that you cannot adequately describe in the specification, you may list and evaluate objective characteristics. To include objective characteristics, you must determine that examination of such characteristics is essential to the acquisition of any acceptable product. Base your determination on past experience or other valid considerations.</P>
              <P>(c) FAR 52.215-1(c)(3) applies to samples received after the time set for receipt of offers.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 516</EAR>
          <HD SOURCE="HED">PART 516—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 516.2—Fixed Price Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>516.203-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 516.5—Indefinite-Delivery Contracts</HD>
              <SECTNO>516.506</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 516.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
              <SECTNO>516.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
              <SECTNO>516.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 121(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37218, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 516.2—Fixed Price Contracts</HD>
            <SECTION>
              <SECTNO>516.203-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) <E T="03">Multiple award schedules.</E> Do not use FAR 52.216-2, 52.216-3, or 52.216-4 in negotiated acquisitions based on discounts from established commercial catalogs or pricelists. Instead, use:</P>
              <P>(1) 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts, in a 1-year solicitation or contract.</P>
              <P>(2) 552.216-70 (Alternate I) in multiyear solicitations and contracts.</P>
              <P>(b) <E T="03">Stock or Special Order Program Contracts.</E> In multiyear solicitations and contracts, after making the determination required by FAR 16.203-2, use 552.216-71, Economic Price Adjustment-Stock and Special Order Program Contract, or a clause prepared as authorized in paragraph (a)(2)(ii) of this subsection.</P>
              <P>(1) If the contract includes one or more options to extend the term of the contract, use the clause with its Alternate I or a clause substantially the same as 552.216-71 with its Alternate I suitably modified.</P>
              <P>(2) In a contract requiring a minimum adjustment before the price adjustment mechanism is effectuated, use the basic clause with Alternate II or with Alternate I and Alternative II.</P>
              <P>(3) If the Producer Price Index is not an appropriate indicator for price adjustment, modify the clause to use an alternate indicator for adjusting prices. Similarly, if other aspects of 552.216-71 are not appropriate, use an alternate clause following established procedures.</P>
              <P>(c) <E T="03">Adjustments based on cost indexes of labor or material.</E> (1) If you decide to <PRTPAGE P="190"/>provide for adjustments based on cost indexes of labor or material, prepare a clause that defines each of the following elements:</P>
              <P>(i) The type of labor and/or material subject to adjustment.</P>
              <P>(ii) The labor rates, including any fringe benefits and/or unit prices of materials that may be increased or decreased.</P>
              <P>(iii) The index(es) that will be used to measure changes in price levels and the base period or reference point from which changes will be measured.</P>
              <P>(iv) The period during which the price(s) will be subject to adjustment.</P>
              <P>(2) The contracting director must approve use of this clause.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 516.5—Indefinite-Delivery Contracts</HD>
            <SECTION>
              <SECTNO>516.506</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) In solicitations and contracts for stock or special order program items, when the contract authorizes FSS and other activities to issue delivery or task orders, insert the clause at 552.216-72, Placement of Orders. If only FSS will issue delivery or task orders, insert the clause with its Alternate I.</P>
              <P>(b) In solicitations and contracts for single or multiple award schedule program items, insert the clause at 552.216-72, Placement of Orders, with its Alternate II.</P>
              <P>(c) In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule containing information technology Special Item Numbers, use 552.216-72, Placement of Orders, Alternate III, instead of Alternate II.</P>
              <P>(d) If the clause at 552.216-72 is prescribed, insert the provision at 552.216-73, Ordering Information, in solicitations for stock items and in other FSS solicitations. Use 552.216-73 Alternate I when 552.216-72 Alternate I is prescribed. Use 552.216-73 Alternate II when 552.216-72 Alternate II or Alternate III are prescribed.</P>
              <CITA>[64 FR 37218, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 69 FR 28065, May 18, 2004]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 516.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
            <SECTION>
              <SECTNO>516.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>516.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <HD SOURCE="HD2">Architect-Engineer (A-E) Services</HD>
              <P>(a) <E T="03">Requirement for a price proposal.</E> Before you award a letter contract, the proposed A-E must provide a price proposal for the non-design effort.</P>
              <P>(b) <E T="03">Contents of each letter contract.</E> You must include the following information in the letter contract:</P>
              <P>(1) The scope. If you include the design effort, only authorize the A-E to perform those services that are independent of the design effort (for example, feasibility studies, existing facility surveys or site investigation, etc.). Do not authorize the A-E to begin the design effort before the letter contract is definitized.</P>
              <P>(2) A definitization schedule. Include dates for each of the following:</P>
              <P>(i) Submission of the design fee proposal.</P>
              <P>(ii) Start of negotiations.</P>
              <P>(iii) Definitization. This date must be no later than 90 days after the date of the letter contract.</P>
              <P>(3) A limitation on the Government's liability for the non-design effort to be performed under the contract. Insert this amount in FAR 52.216-24, Limitation of Government Liability.</P>
              <P>(c) <E T="03">Unilateral price decision.</E> If you must issue a unilateral price decision, the maximum contract amount must not exceed a reasonable price for the excludable items plus the 6 percent statutory fee limitation for the project.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 517</EAR>
          <HD SOURCE="HED">PART 517—SPECIAL CONTRACTING METHODS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 517.1—Multiyear Contracting</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>517.109</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 517.2—Options</HD>
              <SECTNO>17.200</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>17.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
              <SECTNO>17.203</SECTNO>
              <SUBJECT>Solicitations.</SUBJECT>
              <SECTNO>17.207</SECTNO>
              <SUBJECT>Exercise of options.<PRTPAGE P="191"/>
              </SUBJECT>
              <SECTNO>17.208</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37218, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 517.1—Multiyear Contracting</HD>
            <SECTION>
              <SECTNO>517.109</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>Use of FAR 52.217-2, Cancellation Under Multi-year Contracts, is optional in multiyear contracts authorized by 40 U.S.C. 490(a)(14) for maintenance and repair of fixed equipment in federally-owned buildings and services and 40 U.S.C. 481(a)(3) for public utility services.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 517.2—Options</HD>
            <SECTION>
              <SECTNO>517.200</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>(a) This subpart applies to all GSA contracts for supplies and services, including:</P>
              <P>(1) Services involving construction, alteration, or repair (including dredging, excavating, and painting) of buildings, bridges, roads, or other kinds of real property.</P>
              <P>(2) Architect-engineer services.</P>
              <P>(b) If a requirement in this subpart is inconsistent with FAR 17.2, this subpart takes precedence.</P>
            </SECTION>
            <SECTION>
              <SECTNO>517.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
              <P>(a) <E T="03">Supplies or services.</E>
              </P>
              <P>(1) You should use options when they meet one or more of the following objectives:</P>
              <P>(i) Reduce procurement lead time and associated costs.</P>
              <P>(ii) Ensure continuity of contract support.</P>
              <P>(iii) Improve overall contractor performance.</P>
              <P>(iv) Facilitate longer term contractual relationships with those contractors that continually meet or exceed quality performance expectations.</P>
              <P>(2) An option is normally in the Government's interest in the following circumstances:</P>
              <P>(i) You anticipate a need for additional supplies or services during the contract term.</P>
              <P>(ii) Multiyear contracting authority is not available or its use is inappropriate and you anticipate a need for additional supplies or services beyond the initial contract term.</P>
              <P>(iii) There is a need for continuity of supply or service support.</P>
              <P>(iv) Funds are not available for the entirety of the Government's needs, but are likely to become available during the contract term.</P>
              <P>(v) The initial contract will be used to evaluate the performance of an emerging small business.</P>
              <P>(3) Do not use an option if the market price is likely to change substantially and an economic price adjustment clause inadequately protects the Government's interest.</P>
              <P>(b) <E T="03">Construction.</E> For limitations on the use of options, see 536.213 and 536.270.</P>
            </SECTION>
            <SECTION>
              <SECTNO>517.203</SECTNO>
              <SUBJECT>Solicitations.</SUBJECT>
              <P>A solicitation that includes an option to extend should inform offerors that the contract could result in a long term contractual relationship subject to both of the following conditions:</P>
              <P>(a) Continuing need by GSA.</P>
              <P>(b) Level of contract performance that at least meets GSA's quality performance expectations.</P>
            </SECTION>
            <SECTION>
              <SECTNO>517.207</SECTNO>
              <SUBJECT>Exercise of options.</SUBJECT>
              <P>Before exercising an option, you must:</P>
              <P>(a) Synopsize it unless you meet of the following conditions:</P>
              <P>(1) The option was evaluated as part of the original competition.</P>
              <P>(2) The contract action meets an exception in FAR 5.202.</P>
              <P>(b) Conclude that the contractor's performance under the contract met or exceeded the Government's expectation for quality performance, unless another circumstance justifies an extended contractual relationship.</P>
              <P>(c) Determine that the option price is fair and reasonable.</P>
            </SECTION>
            <SECTION>
              <SECTNO>517.208</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>

              <P>(a) For solicitations under FSS's Stock or Special Order Program, insert a provision substantially the same as the provision at 552.217-70, Evaluation of Options, if both of the following conditions apply:<PRTPAGE P="192"/>
              </P>
              <P>(1) The solicitation contains an option to extend the term of the contract.</P>
              <P>(2) The contract will be fixed price and contain an economic price adjustment clause.</P>
              <P>(b) Insert the provision at 552.217-71, Notice Regarding Option(s), or a similar provision, in solicitations that include an option for increased quantities of supplies or services or an option to extend.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="193"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 519</EAR>
          <HD SOURCE="HED">PART 519—SMALL BUSINESS PROGRAMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 519.5—Set-Asides for Small Business</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>519.508</SECTNO>
              <SUBJECT>Soliciation provisions for contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 519.7—The Small Business Subcontracting Program</HD>
              <SECTNO>519.708</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>519.708-70</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 519.8—Contracting With the Small Business Administration (The 8(a) Program)</HD>
              <SECTNO>519.870</SECTNO>
              <SUBJECT>Direct 8(a) contracting.</SUBJECT>
              <SECTNO>519.870-8</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 519.12—Small Disadvantaged Business Participation Program</HD>
              <SECTNO>519.1202</SECTNO>
              <SUBJECT>Evaluation factor or subfactor.</SUBJECT>
              <SECTNO>519.1202-2</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37219, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 519.5—Set-Asides for Small Business</HD>
            <SECTION>
              <SECTNO>519.508</SECTNO>
              <SUBJECT>Solicitation provisions for contract clauses.</SUBJECT>
              <P>Insert 552.219-70, Allocation of Orders—Partially Set-Asides Items, in solicitations and requirements type supply contracts that are partially set aside for small business.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 519.7—The Small Business Subcontracting Program</HD>
            <SECTION>
              <SECTNO>519.708</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>519.708-70</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <P>Insert the following provisions as directed:</P>
              <P>(a) 552.219-71, Notice to Offerors of Subcontracting Plan Requirements, on the cover page of solicitations containing the clause at FAR 52.219-9, Small Business Subcontracting Plan.</P>
              <P>(b) 552.219-72, Preparation, Submission, and Negotiations of Subcontracting Plans, in solicitations requiring submission of the subcontracting plan with initial offers.</P>
              <P>(c) 552.219-73, Goals for Subcontracting Plan as follows:</P>
              <P>(1) Use the basic provision in sealed bid solicitations containing FAR 52.219-9 if you are able to establish realistic target goals.</P>
              <P>(2) Use Alternate I in:</P>
              <P>(i) sealed bid solicitations if you cannot establish target goals.</P>
              <P>(ii) Negotiated solicitations that include FAR 52.219-9, but do not include 552.219-72.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 519.8—Contracting With the Small Business Administration (The 8(a) Program)</HD>
            <SECTION>
              <SECTNO>519.870</SECTNO>
              <SUBJECT>Direct 8(a) contracting.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>519.870-8</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) Insert the following clauses in solicitations, contracts, and orders issued under the MOU:</P>
              <P>(1) Insert the clause at 552.219-74, Section 8(a) Direct Award.</P>
              <P>(2) Insert the clause at FAR 52.219-14, Limitation on Subcontracting.</P>

              <P>(3) Insert the clause at FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns, Substitute the following paragraph for paragraph (c) of the clause. Add the word “Deviation” at the end of the clause title.
              </P>
              <EXTRACT>
                <P>(c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in this solicitation.</P>
              </EXTRACT>
              
              <P>(b) Do not use the clauses at FAR 52.219-11, Special 8(a) Contract Conditions, FAR 52.219-12, Special 8(a) Subcontract Conditions, or FAR 52.219-17, Section 8(a) Award.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="194"/>
            <HD SOURCE="HED">Subpart 519.12—Small Disadvantaged Business Participation Program</HD>
            <SECTION>
              <SECTNO>519.1202</SECTNO>
              <SUBJECT>Evaluation factor or subfactor.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>519.1202-2</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>In addition to the exception in FAR 19.1202-2, do not evaluate the extent of participation of SDB concerns in performance of multiple award schedule contracts when all fair and reasonable offers from responsible sources are accepted.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 522</EAR>
          <HD SOURCE="HED">PART 522—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>522.001</SECTNO>
            <SUBJECT>Defintion.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 522.1—Basic Labor Policies</HD>
              <SECTNO>522.101</SECTNO>
              <SUBJECT>Labor relations.</SUBJECT>
              <SECTNO>522.101-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>522.103-5</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 522.4—Labor Standards for Contracts Involving Construction</HD>
              <SECTNO>522.406</SECTNO>
              <SUBJECT>Administration and enforcement.</SUBJECT>
              <SECTNO>522.406-6</SECTNO>
              <SUBJECT>Payrolls and statements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 522.8—Equal Employment Opportunity</HD>
              <SECTNO>522.803</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>522.804</SECTNO>
              <SUBJECT>Affirmative action programs.</SUBJECT>
              <SECTNO>522.804-1</SECTNO>
              <SUBJECT>Nonconstruction.</SUBJECT>
              <SECTNO>522.805</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>522.807</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37220, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>522.001</SECTNO>
            <SUBJECT>Definition.</SUBJECT>
            <P>
              <E T="03">Agency labor advisory,</E> as used in this part, means the Director of the GSA Acquisition Policy Division, Office of Acquisition Policy.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 522.1—Basic Labor Policies</HD>
            <SECTION>
              <SECTNO>522.101</SECTNO>
              <SUBJECT>Labor relations.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>522.101-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) GSA personnel performing official duties must maintain GSA's impartiality in disputes between labor and contractor management by refraining from involvement in or expressing a position on:</P>
              <P>(1) Labor negotiations between contractors and unions.</P>
              <P>(2) The merits of any dispute between labor and a contractor's management.</P>
              <P>(b) The Office of General Counsel (OGC) and the agency labor advisor:</P>
              <P>(1) Serve as focal points on contractor labor relations.</P>
              <P>(2) Initiate contact on contractor labor relations matters with national offices of labor organizations, Government departments, agencies or other governmental organizations.</P>
              <P>(3) Serve as a clearinghouse for information on labor laws applicable to Government acquisitions.</P>
              <P>(4) Respond to questions involving FAR Part 22, this part, or other contractor labor relations matters concerning GSA acquisition programs. OGC determines the agency's legal position.</P>
            </SECTION>
            <SECTION>
              <SECTNO>522.103-5</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>Insert FAR 52.222-1, Notice to the Government of Labor Disputes, in solicitations and contracts for items on the DoD Master Urgency List.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 522.4—Labor Standards for Contracts Involving Construction</HD>
            <SECTION>
              <SECTNO>522.406</SECTNO>
              <SUBJECT>Administration and enforcement.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>522.406-6</SECTNO>
              <SUBJECT>Payrolls and statements.</SUBJECT>
              <HD SOURCE="HD1">Statement From Prime Contractors or Subcontractors That Personally Perform Work</HD>
              <EXTRACT>
                <P>(a) Weekly payrolls and statements of compliance with respect to payment of wages are not required from a prime contractor or a subcontractor that personally performs work.</P>
                <P>(b) Instead, a prime contractor or a subcontractor that personally performs work must submit weekly certified statements clearly showing the following information:</P>
                <P>(1) The individual's contractual relationship.</P>
                <P>(2) The scope and date(s) the individual performed the work.</P>

                <P>(3) The individual received no wages for the labor performed.<PRTPAGE P="195"/>
                </P>
                <P>(4) No mechanics or laborers were employed in the prosecution of the work.</P>
                <P>(c) Use GSA Form 618-D, Statement to be Submitted When Work is Performed Personally, to furnish this information.</P>
              </EXTRACT>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 522.8—Equal Employment Opportunity</HD>
            <SECTION>
              <SECTNO>522.803</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>Submit questions on the applicability of E.O. 11246 and implementing regulations to assigned legal counsel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>522.804</SECTNO>
              <SUBJECT>Affirmative action programs.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>522.804-1</SECTNO>
              <SUBJECT>Nonconstruction.</SUBJECT>
              <P>(a) The requirements of FAR 22.804 also apply to each contractor and subcontractor with 50 or more employees who either:</P>
              <P>(1) Serves as a depository of Government funds.</P>
              <P>(2) Is a financial institution serving as an issuing and paying agent for U.S. savings bonds and savings notes.</P>
              <P>(b) Contractors, subcontractors, and financial institutions must develop a written affirmative action compliance program for each of its establishments even if the amount held is less than $50,000.</P>
            </SECTION>
            <SECTION>
              <SECTNO>522.805</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) To determine whether the contract meets the threshold in FAR 22.805(a), include the value of the basic contract plus priced options. A contract modification exercising a priced option is not a contract award under FAR 22.805(a)(1)(ii) and does not a require a preaward clearance.</P>
              <P>(b) Submit preaward review requests directly.</P>
              <HD SOURCE="HD2">Furnishing Information to Contractors</HD>
              <P>(c) In addition to the poster required by FAR 22.805(b), provide each nonexempt contractor a copy of SF 100.</P>
            </SECTION>
            <SECTION>
              <SECTNO>522.807</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
              <P>The agency labor advisor submits a request for exemption.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 523</EAR>
          <HD SOURCE="HED">PART 523—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY AND DRUG-FREE WORKPLACE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 523.3—Hazardous Materials Identification and Material Safety Data</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>523.303</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <SECTNO>523.370</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37220, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 523.3—Hazardous Materials Identification and Material Safety Data</HD>
            <SECTION>
              <SECTNO>523.303</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>(a) Insert 552.223-70, Hazardous Substances, in solicitations and contracts for packaged items subject to the Federal Hazardous Substances Act and the Hazardous Materials Transportation Act.</P>
              <P>(b) Insert 552.223-71, Nonconforming Hazardous Materials, in solicitations and contracts for supplies that contain hazardous materials.</P>
            </SECTION>
            <SECTION>
              <SECTNO>523.370</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
              <P>Insert 552.223-72, Hazardous Material Information, in any solicitation that provides for delivery of hazardous materials on an f.o.b. origin basis.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 525</EAR>
          <HD SOURCE="HED">PART 525—FOREIGN ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <RESERVED>Subpart 525.1—Buy American Act-Supplies [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 525.3—Balance of Payments Program</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>525.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>525.302-70</SECTNO>
              <SUBJECT>Procurements for agencies under the Foreign Assistance Act.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 525.5—Evaluating Foreign Officers—Supply Contracts</HD>
              <SECTNO>525.570</SECTNO>
              <SUBJECT>Procurement of hand or measuring tools or stainless steel flatware for DOD.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 525.11—Solicitation Provisions and Contract Clauses</HD>
              <SECTNO>525.1101</SECTNO>
              <SUBJECT>Acquisition of supplies.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <PRTPAGE P="196"/>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37221, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <RESERVED>Subpart 525.1—Buy American Act-Supplies [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 525.3—Balance of Payments Program</HD>
            <SECTION>
              <SECTNO>525.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>525.302-70</SECTNO>
              <SUBJECT>Procurements for agencies under the Foreign Assistance Act.</SUBJECT>

              <P>GSA procurements made directly for other agencies of items to be used outside the United States are made the Balance of Payments Program. The only exception is if GSA contracts as the agent for an agency governed by the Foreign Assistance Act (22 U.S.C. 2151 <E T="03">et seq.</E>). If this exception applies, the contract will be governed by the policies and procedures of the agency instead of FAR 25.3 and 525.3. For example, GSA sometimes acts as agent for the Agency for International Development and the Bureau of International Narcotics Matters.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 525.5—Evaluating Foreign Officers—Supply Contracts</HD>
            <SECTION>
              <SECTNO>525.570</SECTNO>
              <SUBJECT>Procurement of hand or measuring tools or stainless steel flatware for DOD.</SUBJECT>
              <P>(a) <E T="03">Stainless steel flatware</E> means special order and stock items of stainless steel flatware purchased for DOD, including, but not limited to, the following National Stock Numbers (NSN):
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">7340-00-060-6057</FP>
                <FP SOURCE="FP-1">7340-00-205-3340</FP>
                <FP SOURCE="FP-1">7340-00-241-8171</FP>
                <FP SOURCE="FP-1">7340-00-559-8357</FP>
                <FP SOURCE="FP-1">7340-00-205-3341</FP>
                <FP SOURCE="FP-1">7340-00-241-8169</FP>
                <FP SOURCE="FP-1">7340-00-241-8170</FP>
                <FP SOURCE="FP-1">7340-00-688-1055</FP>
                <FP SOURCE="FP-1">7340-00-721-6316</FP>
                <FP SOURCE="FP-1">7340-00-721-6971</FP>
              </EXTRACT>
              
              <P>(b) Purchases of hand or measuring tools or stainless steel flatware exceeding the simplified acquisition threshold by DOD must be domestic end products. In the case of stainless steel flatware, the Secretary of the Department concerned can make an exception. The individual must determine that a satisfactory quality and sufficient quantity produced in the United States or its possessions are not available when needed at domestic market prices.</P>
              <P>(c) If GSA solicitations of hand or measuring tools or stainless steel flatware include DOD requirements, GSA will apply the DOD restrictions. The bases for applying the DOD restriction to GSA acquisitions are:</P>
              <P>(1) DOD's restrictions apply to requisitions of such items from the GSA stock program.</P>
              <P>(2) The impracticality of establishing a dual supply system to satisfy the requirements of civilian and military agencies.</P>
              <P>(3) GSA may reject any offer when it is considered necessary for reasons of national interest.</P>
              <CITA>[65 FR 41379, July 5, 2000]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 525.11—Solicitation Provisions and Contract Clauses</HD>
            <SECTION>
              <SECTNO>525.1101</SECTNO>
              <SUBJECT>Acquisition of supplies.</SUBJECT>
              <P>If you include DOD requirements for hand or measuring tools or stainless steel flatware in the solicitation for an acquisition estimated to exceed the simplified acquisition threshold, insert 552.225-70, Notice of Procurement Restriction—Hand or Measuring Tools or Stainless Steel Flatware, in the solicitation and resulting contract(s).</P>
              <CITA>[65 FR 41379, July 5, 2000]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="197"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 527</EAR>
          <HD SOURCE="HED">PART 527—PATENTS, DATA, AND COPYRIGHTS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37221, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 527.4—Rights in Data and Copyrights</HD>
            <SECTION>
              <SECTNO>527.409</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <HD SOURCE="HD2">Architect-Engineer Services and Construction Contracts Involving Architect-Engineer Services</HD>
              <P>Insert the following in solicitations and contracts for architect-engineer services and construction contracts involving architect-engineer services:</P>
              <P>(a) Insert 552.227-70, Government Rights (Unlimited), instead of FAR 52.227-17, Rights in Data-Special Works, in contracts, except if 552.227-71 is prescribed.</P>
              <P>(b) If the Government requires sole property rights and exclusive control over the design and data, insert 552.227-71, Drawings and Other Data to Become Property of Government, instead of FAR 52.227-17.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 528</EAR>
          <HD SOURCE="HED">PART 528—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 528.2—Sureties and Other Security for Bonds</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>528.202</SECTNO>
              <SUBJECT>Acceptability of corporate sureties.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 528.3—Insurance</HD>
              <SECTNO>528.310</SECTNO>
              <SUBJECT>Contract clause for work on a Government installation.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37221, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 528.2—Sureties and Other Security for Bonds</HD>
            <SECTION>
              <SECTNO>528.202</SECTNO>
              <SUBJECT>Acceptability of corporate sureties.</SUBJECT>
              <P>Corporate surety bonds must be manually signed by the Attorney-in-Fact or officer of the surety company and the corporate seal affixed. You may waive failure of the surety to affix the corporate seal as a minor informality. (See B-184120, July 2, 1975, 75-2 CPD 9.)</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 528.3—Insurance</HD>
            <SECTION>
              <SECTNO>528.310</SECTNO>
              <SUBJECT>Contract clause for work on a Government installation.</SUBJECT>
              <P>(a) Insert the clause at 552.228-70, Workers' Compensation Laws, in each solicitation and contract that meets all the following conditions:</P>
              <P>(1) The contract amount is expected to exceed the simplified acquisition threshold.</P>
              <P>(2) The contract will require work to be performed on Government property.</P>
              <P>(b) In the case of an owner-controlled insurance program, or wrap-up insurance, the clause will be a part of the policy holder's requirements.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 529</EAR>
          <HD SOURCE="HED">PART 529—TAXES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 529.4—Contract Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>529.401</SECTNO>
              <SUBJECT>Domestic contracts.</SUBJECT>
              <SECTNO>529.401-70</SECTNO>
              <SUBJECT>Purchases at or under the simplified acquisition threshold.</SUBJECT>
              <SECTNO>529.401-71</SECTNO>
              <SUBJECT>Contracts for supplies and services usable by the DC Government.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37222, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="198"/>
            <HD SOURCE="HED">Subpart 529.4—Contract Clauses</HD>
            <SECTION>
              <SECTNO>529.401</SECTNO>
              <SUBJECT>Domestic contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>529.401-70</SECTNO>
              <SUBJECT>Purchases at or under the simplified acquisition threshold.</SUBJECT>
              <P>Insert 552.229-70, Federal, State, and Local Taxes, in purchases and contracts estimated to exceed the micropurchase threshold, but not the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>529.401-71</SECTNO>
              <SUBJECT>Contracts for supplies and services usable by the DC Government.</SUBJECT>
              <P>Insert 552.229-71, Federal Tax-DC Government, in solicitations and contracts that permit the District of Columbia Government to place orders.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 532</EAR>
          <HD SOURCE="HED">PART 532—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.1—Non-Commercial Item Purchase Financing</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>532.111</SECTNO>
              <SUBJECT>Contract clauses for non-commercial purchases.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.2—Commercial Item Purchase Financing</HD>
              <SECTNO>532.206</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.7—Contract Funding</HD>
              <SECTNO>532.705</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>532.705-1</SECTNO>
              <SUBJECT>Clauses for contracting in advance of funds.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.8—Assignment of Claims</HD>
              <SECTNO>532.806</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.9—Prompt Payment</HD>
              <SECTNO>532.902</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>532-905</SECTNO>
              <SUBJECT>Invoice payments.</SUBJECT>
              <SECTNO>532.905-70</SECTNO>
              <SUBJECT>Certification of payment to subcontractors and suppliers under fixed-price construction contracts.</SUBJECT>
              <SECTNO>532.905-71</SECTNO>
              <SUBJECT>Final payment—construction and building service contracts.</SUBJECT>
              <SECTNO>532.908</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.70—Authorizing Payment by Governmentwide Commercial Purchase Card</HD>
              <SECTNO>532.7001</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>532.7002</SECTNO>
              <SUBJECT>Solicitation requirements.</SUBJECT>
              <SECTNO>532.7003</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 532.71—Payments for Recurring Services</HD>
              <SECTNO>532.7101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>532.7102</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>532.7104</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 121(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37222, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 532.1—Non-Commercial Item Purchase Financing</HD>
            <SECTION>
              <SECTNO>532.111</SECTNO>
              <SUBJECT>Contract clauses for non-commercial purchases.</SUBJECT>
              <P>(a) <E T="03">Invoice requirements.</E> Insert 552.232-70, Invoice Requirements, or something substantially the same, in all solicitations and contracts for supplies, services, construction, architect-engineer services, or the acquisition of leasehold interests in real property that require the submission of invoices for payment. Delete subparagraph (b) of the clause if an Accounting Control Transaction (ACT) number is not required for payment.</P>
              <P>(b) <E T="03">Adjusting payments.</E> Insert 552.232-71, Adjusting Payments, in all solicitations and contracts for recurring building services expected to exceed the simplified acquisition threshold.</P>
              <P>(c) <E T="03">Final payment.</E> Insert 552.232-72, Final Payment, in all solicitations and contracts for recurring building services expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 532.2—Commercial Item Purchase Financing</HD>
            <SECTION>
              <SECTNO>532.206</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) <E T="03">Discounts for prompt payment.</E> Include 552.232-8, Discounts for Prompt Payments, in multiple award schedule solicitations and contracts instead of the clause at FAR 52.232-8. In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule containing information technology Special Item Numbers (SINs), use Alternate I.</P>

              <P>(b) The contracting officer shall insert the clause at 552.232-81, Payments by Non-Federal Ordering Activities, in solicitations and schedule contracts for Schedule 70 and Consolidated Products <PRTPAGE P="199"/>and Services Schedule contracts containing information technology SINs.</P>
              <P>(c) The contracting officer shall insert the provision at 552.232-82, Contractor's Remittance (Payment) Address, in all Federal Supply Schedule solicitations and contracts.</P>
              <P>(d) The contracting officer shall insert the clause at 552.232-83, Contractor's Billing Responsibilities, in all Multiple Award Schedule solicitations and contracts.</P>
              <CITA>[68 FR 24378, May 7, 2003, as amended at 69 FR 28065, May 18, 2004]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 532.7—Contract Funding</HD>
            <SECTION>
              <SECTNO>532.705</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>532.705-1</SECTNO>
              <SUBJECT>Clauses for contracting in advance of funds.</SUBJECT>
              <P>Insert 552.232-73, Availability of Funds, in solicitations and contracts for services which are “severable” when both of the following conditions apply:</P>
              <P>(a) The contract, or a portion of the contract, will be chargeable to funds of the new fiscal year.</P>
              <P>(b) The circumstances described in the prescriptions for FAR 52.232-18 or 52.232-19 do not apply.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 532.8—Assignment of Claims</HD>
            <SECTION>
              <SECTNO>532.806</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>Insert the clause at 552.232-23, Assignment of Claims, in solicitations and requirements or indefinite quantity contracts under which more than one agency may place orders.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 532.9—Prompt Payment</HD>
            <SECTION>
              <SECTNO>532.902</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Full cycle electronic commerce</E> means the use of electronic data interchange (EDI), Internet-based invoice processing, and electronic funds transfer (EFT):</P>
              <P>(a) By the Government, to place purchase, delivery, or task orders, receive invoices, and pay invoices.</P>
              <P>(b) By the Contractor, to accept and fill orders, submit invoices, and receive payment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.905</SECTNO>
              <SUBJECT>Invoice payments.</SUBJECT>
              <P>(a) <E T="03">General and architect-engineer contracts.</E> Before exercising the authority to modify the date for constructive acceptance or constructive approval of progress payments in the clauses listed in this section, you must prepare a written justification explaining why a longer period is necessary. An official one level above you must approve your justification. Determine the time needed on a case-by-case basis.</P>
              <P>(1) In subdivision (a)(6)(i) of the clause at FAR 52.232-25, Prompt Payment, do not specify a constructive acceptance period that exceeds 30 days.</P>
              <P>(2) In subdivision (a)(4)(i)(A) of the clause at FAR 52.232-26, Prompt Payment for Fixed-Price Architect-Engineer Contracts, do not specify a constructive acceptance period that exceeds 30 days.</P>
              <P>(3) In subdivision (a)(4)(i)(B) of the clause at FAR 52.232-26, Prompt Payment for Fixed-Price Architect-Engineer Contracts, do not specify a period for constructive approval of progress payments that exceeds 7 days.</P>
              <P>(b) <E T="03">Construction contracts.</E> (1) Determine on a case-by-case basis the time specified for payment of progress payments in subdivision (a)(1)(i)(A) of the clause at FAR 52.232-27, Prompt Payment for Construction Contracts. Justify in writing periods longer than 14 days. An official one level above you must approve your justification. Under no circumstances may more than 30 days be specified.</P>
              <P>(2) Determine the time to be specified in subdivision (a)(4)(i) of FAR clause 52.232-27, for constructive acceptance or approval, on a case-by-case basis. This time may not exceed 7 days unless you justify a longer period in writing, and obtain the approval of an official one level above you. Under no circumstances may more than 30 days be specified.</P>
              <P>(c) <E T="03">Federal Supply Service.</E> (1) To increase efficiency and reduce costs to the Government, Federal Supply Service contracts under the Stock, Special Order, and Schedules Programs may authorize payment within 10 days of receipt of a proper invoice. The contract must meet all the following conditions:</P>

              <P>(i) The contractor agrees to full cycle electronic commerce.<PRTPAGE P="200"/>
              </P>
              <P>(ii) The contract includes FAR 52.232-33, Mandatory Information for Electronic Funds Transfer Payment.</P>
              <P>(2) The 10 day payment terms apply to each order that meets all the following conditions:</P>
              <P>(i) FSS places the order using EDI in accordance with the Trading Partner Agreement.</P>
              <P>(ii) The contractor submits EDI invoices in accordance with the Trading Partner Agreement or invoices through the GSA Finance Center Internet-based invoice process.</P>
              <P>(iii) A GSA Finance Center pays the invoices using EFT.</P>
              <P>(3) The 10 day payment terms do not apply to any order:</P>
              <P>(i) Placed by a GSA contracting activity other than FSS.</P>
              <P>(ii) Placed by or paid by another agency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.905-70</SECTNO>
              <SUBJECT>Certification of payment to subcontractors and suppliers under fixed-price construction contracts.</SUBJECT>
              <P>The contractor may use GSA Form 2419, Certification of Progress Payments Under Fixed-Price Construction Contracts, for the certification required by FAR 52.232-5.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.905-71</SECTNO>
              <SUBJECT>Final payment—construction and building service contracts.</SUBJECT>
              <P>The following procedures apply to construction and building service contracts.</P>
              <P>(a) Do not process the final payment on construction or building service contracts until the contractor submits a properly executed GSA Form 1142, Release of Claims. If, after repeated attempts, you are unable to obtain a release of claims from the contractor, you may process the final payment with the approval of assigned legal counsel.</P>
              <P>(b) The amount of final payment must include, as appropriate, deductions to cover any of the following:</P>
              <P>(1) Liquidated damages for late completion.</P>
              <P>(2) Liquidated damages for labor violations.</P>
              <P>(3) Amounts withheld for improper payment of labor wages.</P>
              <P>(4) The amount of unilateral change orders covering defects and omissions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.908</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) <E T="03">Federal Supply Service.</E> For FSS Stock, Special Order, and Schedules solicitations and contracts that provide payment in 10 days under 532.905(c):</P>
              <P>(1) If the contract will include FAR 52.212-4 insert the clause at 552.232-74, Invoice Payments. GSA received a class deviation to allow use of 552.232-74 for commercial items.</P>
              <P>(2) If the contract will not include FAR 52.212-4, insert 552.232-25, Prompt Payment, instead of FAR 552.232-25.</P>
              <P>(b) <E T="03">Leasehold Interests in Real Property.</E> (1) Insert 552.232-75, Prompt Payment, in solicitations and contracts for acquiring leasehold interests in real property.</P>
              <P>(i) You may modify the date for constructive acceptance in subparagraph (b)(2) of the clause to specify a period longer than 7 calendar days (but not to exceed 30 days) if necessary because of the nature of the services to be received, inspected or accepted by the Government. Prepare a written justification for specifying the longer period and obtain your contracting director's approval.</P>
              <P>(ii) Use Alternate I if the lease contract does not contain provisions for ordering alterations or overtime utility services.</P>
              <P>(2) Insert 552.232-76, Electronic Funds Transfer Payment, in solicitations and contracts for acquisition of leasehold interests in real property.</P>
              <P>(c) <E T="03">Solicitations, purchase orders, contracts, and leases over the micropurchase theshold.</E> Insert 552.232-78, Payment information:</P>
              <P>(1) In all solicitations, purchase orders, and contracts, including acquisitions of leasehold interests in real property.</P>
              <P>(2) In task and delivery orders if the contract that the order is placed against does not include the clause.</P>
              <CITA>[64 FR 37222, July 9, 1999, as amended at 65 FR 41379, July 5, 2000]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="201"/>
            <HD SOURCE="HED">Subpart 532.70—Authorizing Payment by Governmentwide Commercial Purchase Card</HD>
            <SECTION>
              <SECTNO>532.7001</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>
                <E T="03">Governmentwide commercial purchase card</E> has the same meaning as in FAR 13.101.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.7002</SECTNO>
              <SUBJECT>Solicitation requirements.</SUBJECT>
              <P>(a) In solicitations for supplies and services, except FSS schedule solicitations, request offerors to indicate if they will accept payment by Governmentwide commercial purchase card. Identify the card brand(s) under the GSA SmartPay program that may be used to make payments under the contract, on the cover page or in Section L of the solicitation.</P>
              <P>(b) For FSS schedule contracts, identify the card brand(s) under the GSA SmartPay program that may be used to make payments under the contract in the contract award letter.</P>
              <P>(c) For orders placed by GSA, you may authorize payment by Governmentwide commercial purchase card only for orders that do not exceed $100,000 (see GSA Order, Guidance on Use of the Credit Card for Purchases (CFO 4200.1)).</P>

              <P>(d) Consider requesting offerors to designate different levels for which they may accept payment by Governmentwide commercial purchase card, for example:
              </P>
              <EXTRACT>

                <P>“If awarded a contract under this solicitation, the offeror agrees to accept payment by Governmentwide commercial purchase card for orders of:
                </P>
                <FP SOURCE="FP-1">—$2,500 or less</FP>
                <FP SOURCE="FP-1">—$25,000 or less</FP>
                <FP SOURCE="FP-1">—$50,000 or less</FP>
                <FP SOURCE="FP-1">—$100,000 or less”</FP>
              </EXTRACT>
              <CITA>[65 FR 11247, Mar. 2, 2000]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>532.7003</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>(a) <E T="03">Indefinite-delivery, indefinite-quantity (IDIQ) contracts other than Federal Supply Service.</E> Insert the clause at 552.232-77, Payment by Governmentwide Commercial Purchase Card, in IDIQ solicitations and contracts for supplies and services if the contract will provide for payment by Governmentwide commercial purchase card as an alternative method of payment for orders.</P>
              <P>(b) <E T="03">Federal Supply Service contracts.</E> Use Alternate I of the clause at 552.232-77 for all FSS schedule solicitations and contracts, except Federal Supply Schedule 70, Information Technology, and the Consolidated Products and Services Schedule contracts containing Information Technology Special Item Numbers.</P>
              <P>(c) <E T="03">Federal Supply Service schedule contracts for information technology Special Item Numbers.</E> In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule containing information technology Special Item Numbers, use 552.232-79 instead of 552.232-77.</P>
              <CITA>[65 FR 11247, Mar. 2, 2000, as amended at 68 FR 24378, May 7, 2003; 69 FR 28065, May 18, 2004]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 532.71—Payments for Recurring Services</HD>
            <SECTION>
              <SECTNO>532.7101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Fixed roll payment</E> means automatic payment of fixed amounts at regular intervals without submission of an invoice or receiving report.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.7102</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>You may use fixed roll payments in any contract that meets all four of the following conditions:</P>
              <P>(a) The contract provides for recurring services at a constant level for a period of at least two months.</P>
              <P>(b) The contract does not contain any discount items.</P>
              <P>(c) Payment is due 30 days following completion of the service month.</P>
              <P>(d) For a commercial item acquisition, fixed roll payments are consistent with customary commercial practice.</P>
            </SECTION>
            <SECTION>
              <SECTNO>532.7104</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) <E T="03">Noncommercial item acquisitions.</E> For solicitations and contracts to be paid by fixed roll payment, include the clause at 552.232-1, Payments. Do not include the clauses at FAR 52.232-1, Payments, or 552,232-70, Invoice Requirements.</P>
              <P>(b) <E T="03">Commercial item acquisitions.</E> For solicitations and contracts to be paid by fixed roll payment, tailor the clause <PRTPAGE P="202"/>at FAR 52.212-4 by an addendum as noted in paragraphs (b) (1) and (2) of this section. This tailoring is authorized by a deviation approved on January 5, 1999.</P>
              <P>(1) Delete paragraph FAR 52.212-4(g), Invoice.</P>

              <P>(2) Add the following to paragraph FAR 52.212-4(i), Payment:
              </P>
              <EXTRACT>
                <P>The Government shall pay the Contractor, without submission of invoices or vouchers, 30 days after the service period, the prices stipulated in this contract for services rendered and accepted, less any deductions provided in this contract.</P>
              </EXTRACT>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 533</EAR>
          <HD SOURCE="HED">PART 533—PROTESTS, DISPUTES, AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 533.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>533.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <SECTNO>533.103-72</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 533.2—Disputes and Appeals</HD>
              <SECTNO>533.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <SECTNO>533.215</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37224, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 533.1—Protests</HD>
            <SECTION>
              <SECTNO>533.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>533.103-72</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <P>Include the provision at 552.233-70, Protests Filed Directly With the General Services Administration, in each solicitation for either:</P>
              <P>(a) Supplies, services, construction, or architect-engineer services expected to exceed the simplified acquisition threshold.</P>
              <P>(b) Acquisition of leasehold interests in real property expected to exceed the simplified lease acquisition threshold.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 533.2—Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>533.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <P>In addition to the information in FAR 33.211(a)(4)(v), advise the contractor in your written decision that a notice of appeal must:</P>
              <P>(a) Describe the nature of the dispute and the relief sought, the contract provisions involved, and any other additional information or comments relating to the dispute considered important.</P>
              <P>(b) Be signed personally by the appellant (the prime contractor making the appeal) or by an officer of the appellant corporation, or member of the appellant firm, or by the contractor's duly authorized representative or attorney.</P>
            </SECTION>
            <SECTION>
              <SECTNO>533.215</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert the clause at 552.233-71, Disputes (Utility Contracts), in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission.</P>
              <CITA>[70 FR 299, Jan. 4, 2005]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="203"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 536</EAR>
          <HD SOURCE="HED">PART 536—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 536.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>536.101</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 536.2—Special Aspects of Contracting for Construction</HD>
              <SECTNO>536.213</SECTNO>
              <SUBJECT>Special procedures for sealed bidding in construction contracting.</SUBJECT>
              <SECTNO>536.213-3</SECTNO>
              <SUBJECT>Invitations for bids.</SUBJECT>
              <SECTNO>536.213-370</SECTNO>
              <SUBJECT>Bids that include alternates.</SUBJECT>
              <SECTNO>536.213-371</SECTNO>
              <SUBJECT>Bids that include options.</SUBJECT>
              <SECTNO>536.213-372</SECTNO>
              <SUBJECT>Bids that include both alternates and options.</SUBJECT>
              <SECTNO>536.270</SECTNO>
              <SUBJECT>Exercise of options.</SUBJECT>
              <SECTNO>536.271</SECTNO>
              <SUBJECT>Project labor agreements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 536.5—Contract Clauses</HD>
              <SECTNO>536.570</SECTNO>
              <SUBJECT>Supplemental provisions and clauses.</SUBJECT>
              <SECTNO>536.570-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>536.570-2</SECTNO>
              <SUBJECT>Authorities and limitations.</SUBJECT>
              <SECTNO>536.570-3</SECTNO>
              <SUBJECT>Specialist.</SUBJECT>
              <SECTNO>536.570-4</SECTNO>
              <SUBJECT>Basis of award—construction contract.</SUBJECT>
              <SECTNO>536.570-5</SECTNO>
              <SUBJECT>Working hours.</SUBJECT>
              <SECTNO>536.570-6</SECTNO>
              <SUBJECT>Use of premises.</SUBJECT>
              <SECTNO>536.570-7</SECTNO>
              <SUBJECT>Measurements.</SUBJECT>
              <SECTNO>536.570-8</SECTNO>
              <SUBJECT>Specifications and drawings.</SUBJECT>
              <SECTNO>536.570-9</SECTNO>
              <SUBJECT>Shop drawings, coordination drawings, and schedules.</SUBJECT>
              <SECTNO>536.570-10</SECTNO>
              <SUBJECT>Samples.</SUBJECT>
              <SECTNO>536.570-11</SECTNO>
              <SUBJECT>Heat.</SUBJECT>
              <SECTNO>536.570-12</SECTNO>
              <SUBJECT>Use of equipment by the Government.</SUBJECT>
              <SECTNO>536.570-13</SECTNO>
              <SUBJECT>Subcontracts.</SUBJECT>
              <SECTNO>536.570-14</SECTNO>
              <SUBJECT>Requirement for a Project Labor Agreement.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 536.6—Architect-Engineer Services</HD>
              <SECTNO>536.602</SECTNO>
              <SUBJECT>Selection of firms for architect-engineer contracts.</SUBJECT>
              <SECTNO>536.602-1</SECTNO>
              <SUBJECT>Selection criteria.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37224, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 536.1—General</HD>
            <SECTION>
              <SECTNO>536.101</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>If a requirement in this part is inconsistent with a requirement in another GSAR part, this part takes precedence.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 536.2—Special Aspects of Contracting for Construction</HD>
            <SECTION>
              <SECTNO>536.213</SECTNO>
              <SUBJECT>Special procedures for sealed bidding in construction contracting.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>536.213-3</SECTNO>
              <SUBJECT>Invitations for bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>536.213-370</SECTNO>
              <SUBJECT>Bids that include alternates.</SUBJECT>
              <P>(a) The base bid must include all features essential to a sound and adequate building design. If it appears that funds available for a project may be insufficient to include all desired features in the base bid, you may issue a solicitation for a base bid and include one or more alternates in the order of priority. Use alternates only if they are clearly justified and involve substantial amounts of work in relation to the base bid. Their use must be limited and should involve only “add” alternates.</P>
              <P>(b) Before opening bids that include alternates, determine, and record in the contract file, the amount of funds available for the project. The amount recorded must be announced at the beginning of the bid opening. The amount is the controlling factor in determining the low bidder. This amount may be increased later when determining the alternate items to award to the low bidder if the following condition is met: the award amount of the base bid plus the combination of alternate items does not exceed the amount offered for the base bid and the same combination of alternate items by any other responsible bidder whose bid conforms to the solicitation. This requirement prevents the displacement of the low bidder by manipulating the alternates to be used.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.213-371</SECTNO>
              <SUBJECT>Bids that include options.</SUBJECT>
              <P>(a) Subject to the limitations in paragraph (c) of this section, you may include options in contracts if it is in the Government's interest.</P>
              <P>(b) the appropriate use of options may include, but is not limited to, any of the following:</P>

              <P>(1) If additional work is anticipated but funds are not expected to be available at the time of award, and it would <PRTPAGE P="204"/>not be practicable to award a separate contract or to permit an additional contractor to work on the same site.</P>
              <P>(2) If fixed building equipment, e.g. elevators or escalators, will be installed under the construction contract and it is advantageous to have the installer of the equipment maintain and service the equipment during the warranty period.</P>
              <P>(c) You must not use options under any of the following conditions:</P>
              <P>(1) the prospective option represents known firm requirements for which funds are available unless competition for the option quantity is impracticable once the initial contract is awarded.</P>
              <P>(2) The contractor will incur undue risks; e.g., the price or availability of necessary materials or labor is not reasonably foreseeable.</P>
              <P>(d) Solicitations containing option provisions must state the period within which the options may be exercised.</P>
              <P>(e) Solicitations must state whether the basis of award is inclusive or exclusive of the options. Before issuing a solicitation that includes evaluated options, you must determine that there is reasonable certainty that funds will be made available to permit exercise of the option.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.213-372</SECTNO>
              <SUBJECT>Bids that include both alternates and options.</SUBJECT>
              <P>(a) Solicitations may include both alternates and options if the conditions in 536.213-370, Bids that include alternates, and 536.213-371, Bids that include options, are satisfied. In these solicitations, the low bidder for purposes of award is the responsible bidder offering the lowest aggregate price for the base bid and the alternates, in the order of priority listed in the solicitation, that provide the most work features within the funds available at bid opening, plus all options designated to be evaluated.</P>
              <P>(b) The basis of award may require the evaluation of options associated with alternates if the related alternate is selected.</P>

              <P>(c) Before opening bids that include both alternates and options, determine, and record in the contract file, the amount of funds available for the project (<E T="03">i.e.,</E> for the base bid and alternate work). The amount recorded must be announced at the beginning of the bid opening. This amount may be increased later when determining the alternate items to be awarded to the low bidder if the following condition is met: the award amount of the base bid and evaluated options plus the alternate items does not exceed the amount offered for the base bid, the evaluated options, and the same combination of alternate items by any other responsible bidder whose bid conforms to the solicitation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.270</SECTNO>
              <SUBJECT>Exercise of options.</SUBJECT>
              <P>(a) If exercising an option, notify the contractor, in writing, within the time period specified in the contract.</P>
              <P>(b) Exercise options only after determining that all the following conditions exist:</P>
              <P>(1) Funds are available.</P>
              <P>(2) The requirement covered by the option fulfills an existing Government need.</P>
              <P>(3) Exercising the option is the most advantageous method of satisfying the Government's need, price and other factors considered.</P>
              <P>(c) Before exercising an option, you must determine that the action complies with the option's terms and this section's requirements. Include your written determination in the contract file.</P>
              <P>(d) The contract modification, or other written document which notifies the contractor of the exercise of the option, must cite the option clause as authority. If exercising an unpriced or unevaluated option, cite the statutory authority permitting the use of other than full and open competition (see FAR 6.302 and 517.207).</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.271</SECTNO>
              <SUBJECT>Project labor agreements.</SUBJECT>
              <P>(a) <E T="03">Authority.</E> This subpart implements the Presidential memorandum of June 5, 1997, on using project labor agreements (PLAs) on Federal construction projects. The Presidential memorandum authorizes executive departments and agencies to require PLAs on large and significant construction projects for facilities to be owned by a Federal department or agency.</P>
              <P>(b) <E T="03">Applicability.</E> These policies and procedures apply to all GSA activities <PRTPAGE P="205"/>authorized to award contracts for construction of facilities to be owned by a Federal department or agency. You may use a PLA in leasehold arrangement, Federally funded projects, and other appropriate circumstances.</P>
              <P>(c) <E T="03">Definitions.</E>
                <E T="03">Construction</E> means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. The terms buildings, structures, or other real property are defined further in Federal Acquisition Regulation (FAR) 36.102.</P>
              <P>
                <E T="03">Labor organization</E> means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, and any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization (42 U.S.C. 2000e(d)).</P>
              <P>
                <E T="03">Large and significant project</E> means a Federal construction project with a total cost to the Federal Government of more than $5 million.</P>
              <P>
                <E T="03">Project Labor Agreement (PLA)</E> means an agreement between the contractor, subcontractors, and the union(s) representing workers. Under a PLA, the contractor and subcontractors on a project and the union(s) agree on terms and conditions of employment for the project, establishing a framework for labor-management cooperation to advance the Government's procurement interest in cost, efficiency, and quality.</P>
              <P>(d) <E T="03">Policy.</E> (1) You may, on a project-by-project basis, use a PLA on a large and significant project when both of the following conditions apply:</P>
              <P>(i) A PLA will advance the Government's procurement interests.</P>
              <P>(ii) No laws that apply to the specific construction project preclude the use of the PLA.</P>
              <P>(2) Do not require any contractor to enter into a PLA with any particular labor organization.</P>
              <P>(3) The use of a PLA is not intended to create any right or benefit, substantive or procedural enforceable by a nonfederal party against the United States, its departments, and agencies, its officers or employees, or any other person.</P>
              <P>(e) <E T="03">Procedures.</E> (1) As part of procurement planning for construction projects with a total estimated cost to the Federal Government of more than $5 million, you may consider requiring a PLA.</P>
              <P>(2) To require a PLA, you must determine whether use of a PLA will advance the Government's procurement interests in all the following areas:</P>
              <P>(i) Cost, efficiency, and quality.</P>
              <P>(ii) Promoting labor-management stability.</P>
              <P>(iii) Promoting compliance with applicable legal requirements governing safety and health, equal employment opportunity, labor and employment standards, and other matters.</P>
              <P>(3) In making the determination required by paragraph (b) of this section, consult with the agency project or program manager and obtain guidance from the Agency Labor Advisor and assigned legal counsel. You should consider the following factors:</P>
              <P>(i) Whether past experience with construction projects in the location where the project will be performed indicates that a PLA will be effective.</P>
              <P>(ii) Whether delays in performance of the construction contract would have significant adverse impact on the mission of the agency or operation of the installation or facility.</P>
              <P>(iii) Whether any law applies to the specific construction project that would impede use of a PLA.</P>
              <P>(iv) Whether the labor organizations in the area can provide a reliable source of skilled, experienced building trades workers in all crafts needed on the job site for the project's duration (taking into consideration other major construction work in the area).</P>
              <P>(v) Whether the Government can benefit from uniform work rules and working conditions and established procedures for resolving labor disputes, no strike/no lock-out protections.</P>

              <P>(vi) Whether the Government can benefit from increased stability and <PRTPAGE P="206"/>labor peace that derives from greater labor-management cooperation.</P>
              <P>(vii) Whether the requirements for a PLA will unreasonably restrict competition.</P>
              <P>(viii) Other relevant information.</P>
              <P>(4) Document the rationale supporting your decision to require a PLA in the contract file.</P>
              <P>(5) Provide the following information to the Agency Labor Advisor (GSA Acquisition Policy Division (MVP)):</P>
              <P>(i) A brief description of the project.</P>
              <P>(ii) The estimated cost.</P>
              <P>(iii) A copy of the document supporting your decision to require a PLA.</P>
              <P>(iv) A copy of the solicitation.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 536.5—Contract Clauses</HD>
            <SECTION>
              <SECTNO>536.570</SECTNO>
              <SUBJECT>Supplemental provisions and clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>Insert 552.236-70, Definitions, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-2</SECTNO>
              <SUBJECT>Authorities and limitations.</SUBJECT>
              <P>Insert 552.236-71, Authorities and Limitations, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated and the contract amount is expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-3</SECTNO>
              <SUBJECT>Specialist.</SUBJECT>
              <P>Insert 552.236-72, Specialist, in solicitations and contracts for construction if the technical sections of the contract require unusual experience or specialized facilities for adequate contract performance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-4</SECTNO>
              <SUBJECT>Basis of award—construction contract.</SUBJECT>
              <P>(a) Insert a provision substantially the same as 552.236-73, Basis of Award—Construction Contract, in solicitations for fixed-price construction contracts except if any of the following conditions apply:</P>
              <P>(1) The solicitation requires the submission of a lump-sum bid only.</P>
              <P>(2) The solicitation is for an indefinite quantity contract.</P>
              <P>(3) The contract amount is not expected to exceed the simplified acquisition threshold.</P>
              <P>(b) <E T="03">Instructions for use.</E>
              </P>
              <GPOTABLE CDEF="s50,xl50" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">If the solicitation requests the submission of a . . .</CHED>
                  <CHED H="1">Then use the . . .</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">(1) Base bid and unit prices</ENT>
                  <ENT>Basic provision.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(2) Base bid and options</ENT>
                  <ENT>Provision with its Alternate I.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(3) Base bid and alternates</ENT>
                  <ENT>Provision with its Alternate II.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">(4) Base bid, alternates, and options</ENT>
                  <ENT>Provision with its Alternate III.</ENT>
                </ROW>
              </GPOTABLE>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-5</SECTNO>
              <SUBJECT>Working hours.</SUBJECT>
              <P>Insert 552.236-74, Working Hours, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated and the contract amount is expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-6</SECTNO>
              <SUBJECT>Use of premises.</SUBJECT>
              <P>Insert 552.236-75, Use of Premises, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-7</SECTNO>
              <SUBJECT>Measurements.</SUBJECT>
              <P>Insert 552.236-76, Measurements, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-8</SECTNO>
              <SUBJECT>Specifications and drawings.</SUBJECT>
              <P>Insert the clause at 552.236-77, Specifications and Drawings, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated and the contract amount is expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-9</SECTNO>
              <SUBJECT>Shop drawings, coordination drawings, and schedules.</SUBJECT>
              <P>Insert the clause at 552.236-78, Shop Drawings, Coordination Drawings, and Schedules, in solicitations and contracts if construction is contemplated and the contract amount is expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-10</SECTNO>
              <SUBJECT>Samples.</SUBJECT>

              <P>Insert the clause at 552.236-79, Samples, in solicitations and contracts for construction if the technical sections <PRTPAGE P="207"/>of the contract require the submission and approval of samples.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-11</SECTNO>
              <SUBJECT>Heat.</SUBJECT>
              <P>Insert the clause at 552.236-80, Heat, in solicitations and contracts if construction, dismantling, demolition, or removal of improvements is contemplated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-12</SECTNO>
              <SUBJECT>Use of equipment by the Government.</SUBJECT>
              <P>Insert the clause at 552.236-81, Use of Equipment by the Government, in contracts requiring heating and air-conditioning of existing buildings if it may be necessary for the Government to operate all or part of the equipment before final acceptance of the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-13</SECTNO>
              <SUBJECT>Subcontracts.</SUBJECT>
              <P>Insert 552.236-82, Subcontracts, in solicitations and contracts for construction if the contract amount is expected to exceed the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>536.570-14</SECTNO>
              <SUBJECT>Requirement for a Project Labor Agreement.</SUBJECT>
              <P>Insert a clause substantially the same as 552.236-83, Requirement for a Project Labor Agreement, in solicitations and contracts that will require a project labor agreement.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 536.6—Architect-Engineer Services</HD>
            <SECTION>
              <SECTNO>536.602</SECTNO>
              <SUBJECT>Selection of firms for architect-engineer contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>536.602-1</SECTNO>
              <SUBJECT>Selection criteria.</SUBJECT>
              <P>(a) FAR 36.602-1 requires that agencies include “location in the general geographical area of the project and knowledge of locality of the project” as one of several selection criteria.</P>
              <P>(1) Do not use this evaluation factor as a minimum qualification requirement for determining whether a firm is eligible to compete for a proposed project.</P>
              <P>(2) This factor must not exceed 5 percent of the total weight of all evaluation criteria. In order to receive maximum score for this factor, the architect-engineer firm(s) must demonstrate that at least 35 percent of the architect-engineer contract services (based on the total contract price) will be accomplished within the geographical boundaries established for the project.</P>
              <P>(3) Under an approved class deviation from FAR 36.602-1(a)(5), this factor does not apply to projects that the Chief Architect of GSA determines have national significance.</P>
              <P>(b) The public announcement (Commerce Business Daily notice) for a proposed project should identify the general geographical area of the project by either:</P>
              <P>(1) A radius in miles or other appropriate unit of measure.</P>
              <P>(2) The Standard Metropolitan Statistical Area, county(ies), state(s) surrounding the project, or other appropriate geographic boundaries.</P>
              <P>(c) Architect-engineer selections under the Design Excellence Program must apply the geographical evaluation criteria in the second phase.</P>
              <P>(d) The public announcement (Commerce Business Daily notice) must provide the number of calendar days the architect-engineer of record has to establish a production capability within the general geographical area of the project. You may allow the architect-engineer of record up to 45 calendar days after contract award to establish this production capability.</P>
              <CITA>[65 FR 11247, Mar. 2, 2000]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 537</EAR>
          <HD SOURCE="HED">PART 537—SERVICE CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 537.1—Service Contracts—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>537.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>537.110</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 537.2—Advisory and Assistance Services</HD>
              <SECTNO>537.270</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37226, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 537.1—Service Contracts—General</HD>
            <SECTION>
              <SECTNO>537.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>

              <P>Contracts for building services means contracts for services relating to the <PRTPAGE P="208"/>operation and maintenance of a building (for example, janitorial; window washing; snow removal; trash removal; lawn and grounds care; inspection, maintenance and repair of fixed equipment (e.g., elevators, air-conditioning, hearing systems)) and protection or guard service.</P>
            </SECTION>
            <SECTION>
              <SECTNO>537.110</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>The following provision and clauses apply to contracts for building services:</P>
              <P>(a) If the contract is expected to exceed the simplified acquisition threshold and it is not initiated under the Javits-Wagner-O'Day Act:</P>
              <P>(1) Insert 552.237-70, Qualifications of Offerors, in the solicitation.</P>
              <P>(2) Insert 552.237-71, Qualifications of Employees, in the solicitation and contract. If needed, use supplemental provisions or clauses to describe specific requirements for employees performing work on the contract.</P>
              <P>(b) Insert 552.237-72, Prohibition Regaring “Quasi-Military Armed Forces,” in solicitations and contracts for guard service.</P>
              <CITA>[65 FR 41379, July 5, 2000]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 537.2—Advisory and Assistance Services</HD>
            <SECTION>
              <SECTNO>537.270</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert the clause at 552.237-73, Restriction on Disclosure of Information, in solicitations and contracts for proposal evaluation and analysis services.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 538</EAR>
          <HD SOURCE="HED">PART 538—FEDERAL SUPPLY SCHEDULE CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 538.2—Establishing and Administering Federal Supply Schedules</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>538.270</SECTNO>
              <SUBJECT>Evaluation of multiple award schedule (MAS) offers.</SUBJECT>
              <SECTNO>538.271</SECTNO>
              <SUBJECT>MAS contract awards.</SUBJECT>
              <SECTNO>538.272</SECTNO>
              <SUBJECT>MAS price reductions.</SUBJECT>
              <SECTNO>538.273</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 538.70—Cooperative Purchasing</HD>
              <SECTNO>538.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>538.7001</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>538.7002</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>538.7003</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>538.7004</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 121(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 37227, July 9, 1999, unless otherwise noted.</P>
          </SOURCE>
          <EDNOTE>
            <HD SOURCE="HED">Editorial Note:</HD>
            <P>Nomenclature changes to part 538 appear at 69 FR 28065, May 18, 2004.</P>
          </EDNOTE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 538.2—Establishing and Administering Federal Supply Schedules</HD>
            <SECTION>
              <SECTNO>538.270</SECTNO>
              <SUBJECT>Evaluation of multiple award schedule (MAS) offers.</SUBJECT>
              <P>(a) The Government will seek to obtain the offeror's best price (the best price given to the most favored customer). However, the Government recognizes that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved.</P>
              <P>(b) Establish negotiation objectives based on a review of relevant data and determine price reasonableness.</P>
              <P>(c) When establishing negotiation objectives and determining price reasonableness, compare the terms and conditions of the MAS solicitation with the terms and conditions of agreements with the offeror's commercial customers. When determining the Government's price negotiation objectives, consider the following factors:</P>
              <P>(1) Aggregate volume of anticipated purchases.</P>
              <P>(2) The purchase of a minimum quantity or a pattern of historic purchases.</P>
              <P>(3) Prices taking into consideration any combination of discounts and concessions offered to commercial customers.</P>
              <P>(4) Length of the contract period.</P>
              <P>(5) Warranties, training, and/or maintenance included in the purchase price or provided at additional cost to the product prices.</P>
              <P>(6) Ordering and delivery practices.</P>

              <P>(7) Any other relevant information, including differences between the MAS solicitation and commercial terms and conditions that may warrant differentials between the offer and the discounts offered to the most favored commercial customer(s). For example, an offeror may incur more expense selling to the Government than to the customer who receives the offeror's best <PRTPAGE P="209"/>price, or the customer (e.g., dealer, distributor, original equipment manufacturer, other reseller) who receives the best price may perform certain value-added functions for the offeror that the Government does not perform. In such cases, some reduction in the discount given to the Government may be appropriate. If the best price is not offered to the Government, you should ask the offeror to identify and explain the reason for any differences. Do not require offerors to provide detailed cost breakdowns.</P>
              <P>(d) You may award a contract containing pricing which is less favorable than the best price the offeror extends to any commercial customer for similar purchases if you make a determination that both of the following conditions exist:</P>
              <P>(1) The prices offered to the Government are fair and reasonable, even though comparable discounts were not negotiated.</P>
              <P>(2) Award is otherwise in the best interest of the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>538.271</SECTNO>
              <SUBJECT>MAS contract awards.</SUBJECT>
              <P>(a) MAS awards will be for commercial items as defined in FAR 2.101. Negotiate contracts as a discount from established catalog prices.</P>
              <P>(b) Before awarding any MAS contract, determine that the offered prices are fair and reasonable (see FAR subpart 15.4 and 538.270). Document the negotiation and your determination using FAR 15.406-3 as guidance.</P>
              <P>(c) State clearly in the award document the price/discount relationship between the Government and the identified commercial customer (or category of customers) on which the award is predicated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>538.272</SECTNO>
              <SUBJECT>MAS price reductions.</SUBJECT>
              <P>(a) Section 552.238-75, Price Reductions, requires the contractor to maintain during the contract period the negotiated price/discount relationship (and/or term and condition relationship) between the eligible ordering activities and the offeror's customer or category of customers on which the contract award was predicated (see 538.271(c)). If a change occurs in the contractor's commercial pricing or discount arrangement applicable to the identified commercial customer (or category of customers) that results in a less advantageous relationship between the eligible ordering activities and this customer or category of customers, the change constitutes a “price reduction.”</P>
              <P>(b) Make sure that the contractor understands the requirements of section 552.238-75 and agrees to report to you all price reductions as provided for in the clause.</P>
              <CITA>[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>538.273</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) <E T="03">Multiple award schedules.</E> Insert in solicitations and contracts:</P>
              <P>(1) 552.238-70, Identification of Electronic Office Equipment Providing Accessibility for the Handicapped, if you include electronic office equipment items.</P>
              <P>(2) 552.237-71, Submission and Distribution of Authorized FSS Schedule Pricelists. In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule contracts containing information technology Special Item Numbers, use Alternate I. If GSA is not prepared to accept electronic submissions for a particular schedule, delete:</P>
              <P>(i) Subparagraphs (c)(1)(ii) and (c)(3).</P>
              <P>(ii) The subparagraph identifier “(i)” in (c)(1) and the word “and” at the end of subparagraph (i).</P>
              <P>(3) 552.238-72, Identification of Products That Have Environmental Attributes.</P>
              <P>(4) 552.238-73, Cancellation.</P>
              <P>(b) <E T="03">Multiple and single award schedules.</E> Insert in solicitations and contracts:</P>
              <P>(1) 552.238-74, Industrial Funding Fee and Sales Reportings.</P>
              <P>(2) 552.238-75, Price Reductions. In solicitations and contracts for FSS Schedule 70 and the Consolidated Products and Services Schedule contracts containing information technology Special Item Numbers, use Alternate I.</P>
              <CITA>[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 68 FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="210"/>
            <HD SOURCE="HED">Subpart 538.70—Cooperative Purchasing</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>68 FR 24378, May 7, 2003, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>538.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart prescribes policies and procedures that implement statutory provisions authorizing non-federal organizations to use Schedule 70 and Consolidated Products and Services Schedule contracts containing information technology Special Item Numbers (SINs).</P>
            </SECTION>
            <SECTION>
              <SECTNO>538.7001</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Ordering activity</E> (also called “ordering agency” and “ordering office”) means an eligible ordering activity (see 552.238-78) authorized to place orders under Federal supply schedule contracts.</P>
              <P>
                <E T="03">Schedule 70,</E> as used in this subpart, means Schedule 70 information technology contracts, and Consolidated Products and Services Schedule contracts containing information technology SINs. The Consolidated Products and Services Schedule is a compilation of multiple individual Federal Supply Schedules; therefore, only the SINs that fall under Schedule 70 of the Consolidated Products and Services Schedule will apply to Cooperative Purchasing. No other Schedules, or SINs, containing information technology outside of Schedule 70 SINs, and Consolidated Products and Services Schedule contracts containing Schedule 70 SINs, will apply.</P>
              <P>
                <E T="03">State and local government entities,</E> as used in this subpart, means the states of the United States, counties, municipalities, cities, towns, townships, tribal governments, public authorities (including public or Indian housing agencies under the United States Housing Act of 1937), school distric