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  <AMDDATE>August 23, 2004</AMDDATE>
  <FMTR>
    <TITLEPG>
      <CODE>CODE OF FEDERAL REGULATIONS</CODE>
      <PRTPAGE P="1"/>
      <TITLENUM>48</TITLENUM>
      <PARTS>Chapter 29 to End</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>
      </GPH>
      <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>vi</PG>
      </EXPL>
      <TITLENO>
        <HD SOURCE="HED">Title 48:</HD>
        <CHAPTI>
          <SUBJECT>Chapter 29—Department of Labor</SUBJECT>
          <PG>3</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 30—Department of Homeland Security, Homeland Security Acquisition Regulation (HSAR)</SUBJECT>
          <PG>59</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 34—Department of Education Acquisition Regulation</SUBJECT>
          <PG>123</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 44—Federal Emergency Management Agency</SUBJECT>
          <PG>151</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 51—Department of the Army Acquisition Regulations</SUBJECT>
          <PG>175</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 52—Department of the Navy Acquisition Regulations</SUBJECT>
          <PG>189</PG>
        </CHAPTI>
        <CHAPTI>
          <RESERVED>Chapter 53—Department of the Air Force Federal Acquisition Regulation Supplement [Reserved]</RESERVED>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 54—Defense Logistics Agency, Department of Defense</SUBJECT>
          <PG>197</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 57—African Development Foundation</SUBJECT>
          <PG>201</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 61—General Services Administration Board of Contract Appeals</SUBJECT>
          <PG>205</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 63—Department of Transportation Board of Contract Appeals</SUBJECT>
          <PG>245</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter 99—Cost Accounting Standards Board, Office of Federal Procurement Policy, Office of Management and Budget</SUBJECT>
          <PG>259</PG>
        </CHAPTI>
      </TITLENO>
      <FAIDS>
        <HD SOURCE="HED">Finding Aids:</HD>
        <SUBJECT>Table of CFR Titles and Chapters</SUBJECT>
        <PG>477<PRTPAGE P="iv"/>
        </PG>
        <SUBJECT>Alphabetical List of Agencies Appearing in the CFR</SUBJECT>
        <PG>495</PG>
        <SUBJECT>List of CFR Sections Affected</SUBJECT>
        <PG>505</PG>
      </FAIDS>
    </TOC>
    <CITE>
      <PRTPAGE P="v"/>
      <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 2901.001</E> refers to title 48, part 2901, section 100.</CITEP>
    </CITE>
    <EXPLA>
      <PRTPAGE P="vi"/>
      <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="vii"/>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="viii"/>
        </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, Robert J. Sheehan 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. 29 (10-1-05 Edition)</LRH>
    <RRH>Department of Labor</RRH>
    <CFRTITLE>
      <TITLEHD>
        <PRTPAGE P="1"/>
        <HD SOURCE="HED">Title 48—Federal Acquisition Regulations System</HD>
        <P>(This book contains chapter 29 to End)</P>
      </TITLEHD>
      <CFRTOC>
        <PTHD>Part</PTHD>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 29</E>—Department of Labor</SUBJECT>
          <PG>2901</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 30</E>—Department of Homeland Security, Homeland Security Acquisition Regulation (HSAR)</SUBJECT>
          <PG>3001</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 34</E>—Department of Education Acquisition Regulation</SUBJECT>
          <PG>3401</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 44</E>—Federal Emergency Management Agency</SUBJECT>
          <PG>4401</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 51</E>—Department of the Army Acquisition Regulations</SUBJECT>
          <PG>5108</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 52</E>—Department of the Navy Acquisition Regulations</SUBJECT>
          <PG>5215</PG>
        </CHAPTI>
        <CHAPTI>
          <RESERVED>
            <E T="04">chapter 53</E>—Department of the Air Force Federal Acquisition Regulation Supplement [Reserved]</RESERVED>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 54</E>—Defense Logistics Agency, Department of Defense</SUBJECT>
          <PG>5416</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 57</E>—African Development Foundation</SUBJECT>
          <PG>5706</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 61</E>—General Services Administration Board of Contract Appeals</SUBJECT>
          <PG>6101</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter 63</E>—Department of Transportation Board of Contract Appeals</SUBJECT>
          <PG>6301</PG>
        </CHAPTI>
        <CHAPTI>
          <PRTPAGE P="2"/>
          <SUBJECT>
            <E T="04">chapter 99</E>—Cost Accounting Standards Board, Office of Federal Procurement Policy, Office of Management and Budget</SUBJECT>
          <PG>9900</PG>
        </CHAPTI>
      </CFRTOC>
    </CFRTITLE>
    <CHAPTER>
      <TOC>
        <TOCHD>
          <PRTPAGE P="3"/>
          <HD SOURCE="HED">CHAPTER 29—DEPARTMENT OF LABOR</HD>
          <P>(Parts 2900 to 2999)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>2901</PT>
          <SUBJECT>Department of Labor acquisition regulation system</SUBJECT>
          <PG>5</PG>
          <PT>2902</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>12</PG>
          <PT>2903</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>13</PG>
          <PT>2904</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>16</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>2905</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>17</PG>
          <PT>2906</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>18</PG>
          <PT>2907</PT>
          <SUBJECT>Acquisition planning</SUBJECT>
          <PG>18</PG>
          <PT>2908</PT>
          <SUBJECT>Required sources of supplies and services</SUBJECT>
          <PG>19</PG>
          <PT>2909</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>19</PG>
          <PT>2910</PT>
          <SUBJECT>Market research</SUBJECT>
          <PG>22</PG>
          <PT>2911</PT>
          <SUBJECT>Describing agency needs</SUBJECT>
          <PG>23</PG>
          <PT>2912</PT>
          <SUBJECT>Acquisition of commercial items</SUBJECT>
          <PG>23</PG>
          <PT>2913</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>24</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>2914</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>26</PG>
          <PT>2915</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>26</PG>
          <PT>2916</PT>
          <SUBJECT>Contract types</SUBJECT>
          <PG>28</PG>
          <PT>2917</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>28</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>2918</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>2919</PT>
          <SUBJECT>Small business and small disadvantaged business concerns</SUBJECT>
          <PG>31</PG>
          <PT>2920-2921</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>2922</PT>
          <SUBJECT>Application of labor laws to government acquisitions</SUBJECT>
          <PG>33<PRTPAGE P="4"/>
          </PG>
          <PT>2923</PT>
          <SUBJECT>Environment, energy and water efficiency, renewable energy technologies, occupational safety, and drug-free workplace</SUBJECT>
          <PG>34</PG>
          <PT>2924-2927</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>2928</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>36</PG>
          <PT>2929</PT>
          <SUBJECT>Taxes</SUBJECT>
          <PG>36</PG>
          <PT>2930</PT>
          <SUBJECT>Cost accounting standards administration</SUBJECT>
          <PG>36</PG>
          <PT>2931</PT>
          <SUBJECT>Contract cost principles and procedures</SUBJECT>
          <PG>37</PG>
          <PT>2932</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>37</PG>
          <PT>2933</PT>
          <SUBJECT>Protests, disputes, and appeals</SUBJECT>
          <PG>37</PG>
          <PT>2934-2935</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>2936</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>40</PG>
          <PT>2937</PT>
          <SUBJECT>Service contracting</SUBJECT>
          <PG>42</PG>
          <PT>2938-2941</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>2942</PT>
          <SUBJECT>Contract administration and audit services</SUBJECT>
          <PG>45</PG>
          <PT>2943</PT>
          <SUBJECT>Contract modifications</SUBJECT>
          <PG>46</PG>
          <PT>2944</PT>
          <SUBJECT>Subcontracting policies and procedures</SUBJECT>
          <PG>46</PG>
          <PT>2945</PT>
          <SUBJECT>Government property</SUBJECT>
          <PG>47</PG>
          <PT>2946-2951</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>2952</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>49</PG>
          <PT>2953</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>49</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="5"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 2901</EAR>
          <HD SOURCE="HED">PART 2901—DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.0—Scope of Subpart</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2901.001</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.1—Purpose, Authority, Issuance</HD>
              <SECTNO>2901.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>2901.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>2901.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <SECTNO>2901.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.2—Administration</HD>
              <SECTNO>2901.201-1</SECTNO>
              <SUBJECT>Maintenance of the FAR.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.3—Agency Acquisition Regulations</HD>
              <SECTNO>2901.302</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <SECTNO>2901.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.4—Deviations From the FAR and DOLAR</HD>
              <SECTNO>2901.403</SECTNO>
              <SUBJECT>Individual deviations from the FAR.</SUBJECT>
              <SECTNO>2901.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <SECTNO>2901.405</SECTNO>
              <SUBJECT>Deviations pertaining to treaties and executive agreements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.6—Career Development, Contracting Authority, and Responsibilities</HD>
              <SECTNO>2901.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>2901.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
              <SECTNO>2901.602-1</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>2901.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <SECTNO>2901.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of Appointment.</SUBJECT>
              <SECTNO>2901.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>2901.603-3</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <SECTNO>2901.603-4</SECTNO>
              <SUBJECT>Terminations.</SUBJECT>
              <SECTNO>2901.603-70</SECTNO>
              <SUBJECT>Responsibility of other government personnel.</SUBJECT>
              <SECTNO>2901.603-71</SECTNO>
              <SUBJECT>Contracting officer's technical representatives (COTR).</SUBJECT>
              <SECTNO>2901.603-72</SECTNO>
              <SUBJECT>Administrative procurement management reviews.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2901.7—Determinations and Findings</HD>
              <SECTNO>2901.707</SECTNO>
              <SUBJECT>Signatory 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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.0—Scope of Subpart</HD>
            <SECTION>
              <SECTNO>2901.001</SECTNO>
              <SUBJECT>Scope of part.</SUBJECT>
              <P>This chapter may be referred to as the Department of Labor Acquisition Regulation or the DOLAR. This subpart sets forth introductory information about the Department of Labor Acquisition Regulation. This subpart explains the relationship of the DOLAR to the Federal Acquisition Regulation (FAR) and explains the DOLAR's purpose, authority, applicability, exclusions, and issuance.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>2901.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) Chapter 29, Department of Labor Acquisition Regulation, is established within Title 48 of the Federal Acquisition Regulation System of the Code of Federal Regulations.</P>
              <P>(b) The purpose of the DOLAR is to implement the FAR, and to supplement the FAR when coverage is needed for subject matter not covered in the FAR. The DOLAR is not by itself a complete document, as it must be used in conjunction with the FAR.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.103</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>The DOLAR is issued pursuant to the authority of the Secretary of Labor under 5 U.S.C. 301 and 40 U.S.C. 486(c). This authority has been delegated to the Assistant Secretary for Administration and Management under Secretary's Order 4-76 in accordance with FAR 1.301(d)(3).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <P>(a) <E T="03">Numbering.</E> Where DOLAR implements the FAR, the implementing part, subpart, section or subsection of the DOLAR is numbered and captioned, to the extent feasible, the same as the FAR part, subpart, section or subsection being implemented, except that <PRTPAGE P="6"/>the section or subsection being implemented is preceded with a 29 or a 290 such that there will always be four numbers to the left of the first decimal. For example, the DOLAR implementation of FAR l.105-l is shown as 290l.105-1 and the DOLAR implementation of FAR subpart 24.1 is shown as DOLAR subpart 2924.1. Material which supplements the FAR is assigned the subsection numbers 70 and up. For example, the DOL regulation governing appointment and termination of contracting officers' technical representatives is identified as 2901.603-71.</P>
              <P>(b) References to FAR materials within the DOLAR will include the acronym FAR and the identifying number, for example, FAR l.104-2(c)(2). References to DOLAR materials within the DOLAR simply cite the identifying number, for example, 2901.104-2(c)(2).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <P>Copies of the DOLAR published in the <E T="04">Federal Register,</E> CD-ROM, or Code of Federal Regulations may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402, or from the Government Printing Office Web Page, <E T="03">http://www.gpo.gov/.</E> Requests should reference the DOLAR as chapter 29 of title 48. The Code of Federal Regulations is printed in paperback edition with updates as needed. Additional information on DOL may be obtained on the Internet at <E T="03">www.dol.gov.</E> Other DOL procurement policy documents referenced within the DOLAR may be available when appropriate by mail from the Division of Acquisition Management Services.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.2—Administration</HD>
            <SECTION>
              <SECTNO>2901.201-1</SECTNO>
              <SUBJECT>Maintenance of the FAR.</SUBJECT>
              <P>A member of the Division of Acquisition Management Services (DAMS), an organization within the Office of Acquisition and Management Support Services, the Business Operations Center, Office of the Assistant Secretary for Administration and Management (OASAM), represents the Department of Labor on the Civilian Agency Acquisition Council (CAAC). DAMS will be responsible for coordination with all interested DOL elements regarding proposed FAR revisions and advocating revisions sought by DOL.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.3—Agency Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>2901.302</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>DOLAR System issuances are limited to published, codified, Department-wide regulations, which implement or supplement FAR policies and procedures and which affect organizations or individuals seeking to contract with the Department.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>
              <P>(a) The DOLAR is under the direct oversight and control of the Department's Senior Procurement Executive. Procedures for review and approval of issuances under the DOLAR System comply with FAR subparts 1.3 and 1.4. These procedures are contained in subpart 2901.6.</P>
              <P>(b) DOLAR issuances shall comply with the restrictions in FAR 1.304(b).</P>

              <P>(c) Heads of Contracting Activity (HCAs) must submit all proposed instructions and materials that implement or supplement the DOLAR to the Director, DAMS. In conjunction with the Office of the Solicitor, DAMS will review all issuances whether or not they will be published in the <E T="04">Federal Register</E> as a part of the DOLAR System. In the case of internal procurement policy instructions, the purpose of the review is to ascertain that such instructions are consistent with the FAR and the DOLAR and that they do not contain information which should be issued under the DOLAR.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.4—Deviations From the FAR and DOLAR</HD>
            <SECTION>
              <SECTNO>2901.403</SECTNO>
              <SUBJECT>Individual deviations from the FAR.</SUBJECT>

              <P>(a) The Senior Procurement Executive is authorized to approve deviations from FAR provisions (see FAR 1.403) or DOLAR provisions, which affect only one contracting action, unless FAR 1.405(e) is applicable. Requests for deviations shall be submitted through the Director, DAMS.<PRTPAGE P="7"/>
              </P>
              <P>(b) Requests for deviations under paragraph (a) of this section must be submitted by the HCA and include justification as to why the deviation is required.</P>
              <P>(c) A copy of the approved deviation must be included in the contract file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>(a) The Senior Procurement Executive is authorized to approve class deviations from FAR or DOLAR provisions which affect more than one contracting action, unless FAR 1.405(e) is applicable. The request for deviation is submitted through the Director, DAMS.</P>
              <P>(b) Requests for deviations under paragraph (a) of this section must be submitted by the HCA and include justification as to why the deviation is required and the number of contracting actions which will be affected.</P>
              <P>(c) For a FAR class deviation the Director, DAMS will consult with the Chair of the CAAC, as required in FAR 1.404(a)(1), before authorizing the deviation.</P>
              <P>(d) A copy of the approved class deviation must be included in each contract file.</P>
              <P>(e) Recommended revisions to the FAR and a copy of each approved class FAR deviation will be transmitted to the FAR Secretariat by the Director, DAMS as required in FAR 1.404.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.405</SECTNO>
              <SUBJECT>Deviations pertaining to treaties and executive agreements.</SUBJECT>
              <P>(a) The Director, DAMS is responsible for transmitting to the FAR Secretariat the information required in FAR 1.405(d).</P>
              <P>(b) For deviations not authorized by FAR 1.405(b) or (c), the Director, DAMS, will process the request for deviation through the FAR Secretariat.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.6—Career Development, Contracting Authority, and Responsibilities</HD>
            <SECTION>
              <SECTNO>2901.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) This section deals with contracting authority and responsibilities of the head of the agency as described in 2902.1, FAR subpart 1.6 and this subpart.</P>
              <P>(1) The authority and responsibility vested in the Secretary to contract for authorized supplies and services is delegated to the Assistant Secretary for Administration and Management.</P>
              <P>(2) The Assistant Secretary for Administration and Management may delegate contracting authority to a bureau or agency within the Department of Labor as he/she delineates in writing.</P>
              <P>(b) The Assistant Secretary for Administration and Management, acting through the Senior Procurement Executive, may delegate additional procurement authority subject to the issuance of warrants by the Senior Procurement Executive, and reserves the right to rescind any acquisition authority, if it is determined that such action is in the best interest of the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2901.602-1</SECTNO>
              <SUBJECT>Authority.</SUBJECT>

              <P>Contracting warrants, at all levels above the micro-purchase threshold, must be requested by the HCA in writing and signed by the Senior Procurement Executive. Warrants may be accompanied by letters of appointment that may provide requirements for maintaining the warrant (<E T="03">e.g.,</E> maintaining current documentation for the FAR, DOLAR, and other guidance, and recurrent training). Copies of the appointment shall be maintained in the Division of Acquisition Management Services. Contracting officers must display the original warrant (and its limitations) in their workspace. A listing of current contracting officers may be available for review on the Internet at <E T="03">http://www.dol.gov/oasam/grants/prgms.htm.</E> To modify a contracting officer's authority, the present appointment must be revoked and a new certificate issued.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <P>(a) If the HCA agrees that the commitment appears to be without valid authorization, the Division of Acquisition Management Services must be notified by the HCA in accordance with the procedures outlined in this section.</P>
              <P>(b) <E T="03">Ratifications—Thresholds.</E> The Department of Labor may only ratify acquisitions that were intended to fulfill a bona fide need and otherwise could <PRTPAGE P="8"/>have been authorized when made. If the action to be ratified is not approved, then the employee who authorized the work may be liable for the entire cost of the action. Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority must be processed as follows:</P>
              <GPOTABLE CDEF="s100,r100,xs75" COLS="3" OPTS="L2">
                <BOXHD>
                  <CHED H="1">Dollar threshold</CHED>
                  <CHED H="1">Must be approved by (Ratifying official)</CHED>
                  <CHED H="1">Steps to be followed</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Below the micro-purchase threshold</ENT>
                  <ENT>Head of the Contracting Office</ENT>
                  <ENT>1 through 5 &amp; 7.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Between the micropurchase threshold and the Simplified Acquisition Threshold</ENT>
                  <ENT>Head of Contracting Activity</ENT>
                  <ENT>1 through 5 &amp; 7.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Above the Simplified Acquisition Threshold</ENT>
                  <ENT>Assistant Secretary for Administration and Management, after review by the Procurement Review Board</ENT>
                  <ENT>1 through 7.</ENT>
                </ROW>
                <TNOTE>
                  <E T="04">Note:</E> DOL procurement policies require review by the Procurement Review Board of advisory and assistance services acquisitions above $50,000 for competitive acquisitions and at any dollar amount for noncompetitive acquisitions, and waivers for contracts with employees and recently separated employees. Therefore, review by the PRB is required for unauthorized obligations at these lower thresholds.</TNOTE>
              </GPOTABLE>
              <HD SOURCE="HD2">Step—Instruction</HD>
              <P>(1) The individual is placed on notice by the contracting officer, in writing, that the purchase may be inappropriate because he did not have a purchasing request, funding, or authority to obligate the Government to make an expenditure of funds.</P>
              <P>(i) The individual who made the unauthorized contractual commitment shall furnish the contracting officer all records and documents concerning the commitment and a complete written statement of the facts, including, but not limited to a statement as to why the acquisition office was not used, a description of work to be performed or products to be furnished, an estimated or agreed-upon contract price, citation of appropriation available, and a statement as to whether the contractor has commenced performance.</P>
              <P>(ii) In the absence of such an individual, the head of the applicable office will be responsible for providing such information, including an explanation of why the individual who made the unauthorized commitment is unavailable to provide this information.</P>
              <P>(2) The individual who made the unauthorized commitment or the head of the applicable office, as appropriate, shall provide a determination and finding (See FAR 1.704) to the contracting officer indicating that:</P>
              <P>(i) Supplies or services have been provided to and accepted by the Government, or the Government otherwise has obtained or will obtain a benefit resulting from performance of the unauthorized commitment;</P>
              <P>(ii) A procurement request and/or accompanying documentation including a statement signed by the individual that explains why normal acquisition procedures were not followed, explains why the source was selected, lists other sources considered, describes the work, and estimates or states the agreed upon price. (If the DOL employee who made the unauthorized commitment is no longer available, appropriate program personnel must provide the information described in this paragraph); and</P>
              <P>(iii) Funds are available and were available at the time of the unauthorized commitment.</P>
              <P>(3) The contracting officer reviewing the unauthorized commitment shall determine whether the price is fair and reasonable and if payment is recommended to the ratifying official. (The contracting officer may rely upon written documentation submitted by managing staff above the individual who made the unauthorized commitment, in making his/her determination.)</P>
              <P>(4) Legal review is required before ratification by the ratifying official.</P>
              <P>(5) The ratifying official shall make an affirmative determination and finding that:</P>
              <P>(i) The resulting purchase order or contract would otherwise have been proper if made by an appropriate contracting officer.</P>

              <P>(ii) The contracting officer reviewing the unauthorized commitment has determined that the price is fair and reasonable and payment is recommended.<PRTPAGE P="9"/>
              </P>
              <P>(6) For cases over the simplified acquisition threshold, all documentation for steps (1) through (5) must be forwarded to the Director, Division of Acquisition Management Services, for submission to the Procurement Review Board. However, the ratifying official is responsible for directing the receipt and acceptance for all products and deliverables received by the Government as a result of an unauthorized commitment.</P>

              <P>(7) The supervisor of the individual who made the unauthorized commitment shall prepare a corrective action plan to preclude further unauthorized commitments (<E T="03">e.g.,</E> ethics, purchase card, or administrative procedures training, or other appropriate action). The ratifying official may approve the corrective action plan. The individual shall report to the ratifying official in writing when the corrective action has been initiated and again after it has been fully implemented.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>(a) The Senior Procurement Executive will develop and manage an acquisition career management program for contracting personnel. Training requirements must conform to Office of Federal Procurement Policy Letters 92-3, 97-01, and the Federal Acquisition Institute's curriculum. These references are available at:
              </P>
              <FP SOURCE="FP-1">
                <E T="03">http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL97-01.html,</E>
              </FP>
              <FP SOURCE="FP-1">
                <E T="03">http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-3.html,</E> and through the Federal Acquisition Institute (FAI) at:</FP>
              <FP SOURCE="FP-1">
                <E T="03">http://www.faionline.com/fai/campus/index4.htm.</E>
              </FP>
              
              <P>(b) The program must cover all contracting personnel in the following categories:</P>
              <P>(1) <E T="03">General Schedule (GS-1102) Contracting Series</E> (See also FAR 1.603);</P>
              <P>(2) Contracting officers, regardless of General Schedule Series, with contracting authority above the simplified acquisition threshold;</P>
              <P>(3) Purchasing Series (GS-1105), other individuals performing purchasing duties and individuals with contracting authority between the micro-purchase and simplified acquisition thresholds.</P>
              <P>(4) All Contracting Officer Technical Representatives as identified in 2901.603-71.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603-3</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <P>
                <E T="03">General.</E> In accordance with FAR 1.603-3, appointments will be made in writing on an SF 1402 for all warrants above the micro-purchase threshold. In addition, appointments may be made for specific functions unrelated to dollar threshold, such as indirect cost negotiation, debt management, and closeout functions.</P>
              <P>(a) <E T="03">Purchase Cards (micro-purchase threshold).</E> Purchase cardholders will be appointed in accordance with the DOL Guidelines for Purchase Card Use and the Agency/Office procedures approved by the HCA. Agency/Organization Purchase Card Coordinators requesting issuance of a purchase card must be responsible for ensuring that the purchase cardholder has taken an orientation course before issuance and/or use of the purchase card. A list of purchase cardholders is available at: <E T="03">http://www.dol.gov/oasam/foia/hotfoia/citibank-list.htm.</E>
              </P>
              <P>(b) <E T="03">Simplified Acquisition Threshold (currently $100,000).</E> The HCA may request a delegation of procurement authority not to exceed the simplified acquisition threshold based on education, training, and experience in the acquisition field. Effective July 26, 2004, all new appointments must comply with training requirements listed in “OFPP Policy Letter No. 92-3, Procurement Professionalism Program Policy-Training for Contracting Personnel”, dated June 24, 1992.</P>
              <P>(c) <E T="03">$500,000.</E> The HCA may request a delegation of procurement authority not to exceed $500,000 based on the individual's education, training and experience in contracting. Although primarily reserved for those in the GS-1102 series, the HCA may consider business acumen, education, training, and experience. Effective May 27, 2004, all new appointments must comply with training requirements listed in “OFPP Policy Letter No. 92-3, Procurement Professionalism Program Policy-Training for Contracting Personnel”, dated June 24, 1992.<PRTPAGE P="10"/>
              </P>
              <P>(d) <E T="03">Unlimited.</E> The HCA may request a delegation of procurement authority on an unlimited basis for individuals whose education, training, and experience in contracting warrant such authority. Although primarily reserved for those in the GS-1102 series, the HCA may consider length of service, training, and experience. Effective May 27, 2004, all new appointments must comply with training requirements listed in “OFPP Policy Letter No. 92-3, Procurement Professionalism Program Policy-Training for Contracting Personnel”, dated June 24, 1992.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603-4</SECTNO>
              <SUBJECT>Terminations.</SUBJECT>

              <P>Termination of a contracting officer's appointment will be made in writing unless the warrant contains the basis for the termination (<E T="03">i.e.,</E> retirement, reassignment). Terminations may be immediate, but must not operate retroactively.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603-70</SECTNO>
              <SUBJECT>Responsibility of other government personnel.</SUBJECT>
              <P>(a) Only DOL personnel with contracting authority shall obligate DOL to any type of contractual obligation and only to the extent of their delegated authority. Responsibility for determining how to buy, the conduct of the buying process, and execution of the contract rests with the contracting officer.</P>
              <P>(b) Personnel responsible for determining agency needs should maintain a close and continuous relationship with their contracting officer to ensure that acquisition personnel are made aware of contemplated acquisition actions. This will be mutually beneficial in terms of better planning for acquisition action and more timely, efficient and economical acquisition.</P>
              <P>(c) Personnel not delegated contracting authority or insufficient contracting authority may not commit the Government, formally or informally, to any type of contractual obligation. However, DOL personnel who must use the contracting process to accomplish their programs must support the contracting officer to ensure that:</P>
              <P>(1) Requirements are clearly defined and specified without being overly restrictive in accordance with FAR 11.002;</P>
              <P>(2) Competitive sources are solicited, evaluated, and selected as appropriate;</P>

              <P>(3) The FAR and the Competition in Contracting Act requirements for full and open competition are satisfied to the maximum extent practicable. Sole source purchases may only be permitted in accordance with FAR Subpart 6.3 or other applicable provisions of the FAR (<E T="03">e.g.</E> FAR Part 8) or federal law;</P>
              <P>(4) Quality standards are prescribed, and met;</P>
              <P>(5) Performance or delivery is timely;</P>
              <P>(6) Files are documented to substantiate the judgments, decisions, and actions taken, including compliance with paragraphs (c)(2) and (3) of this section;</P>

              <P>(7) Requirements are written so as to encourage competition and to comply with regulations and federal policy for meeting acquisition goals such as performance-based contracting, HUBZone contractors, <E T="03">etc.</E> The contracting officer will identify these programs to the program office.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603-71</SECTNO>
              <SUBJECT>Contracting Officer's Technical Representatives (COTR).</SUBJECT>
              <P>(a) At the time a COTR is to become responsible for a contract, task order, or delivery order, the contracting officer must issue a written letter of delegation informing the individual by name of his or her authority, including a delineation of applicable limitations and responsibilities. This applies to contracts awarded by the Department of Labor and those awarded by other agencies, such as Federal Supply Schedule Contracts or Economy Act transactions. Only the contracting officer cognizant of the contract action may make a COTR delegation. However, a contracting officer at any level above the cognizant contracting officer may sign the delegation letter, following his or her determination of its accuracy, completeness, and sufficiency.</P>

              <P>(b) The functions of a COTR typically may include such actions as inspecting, testing, and accepting contract line items, monitoring the contractor's performance, controlling Government-furnished property, reviewing and approving and/or recommending to the contracting officer approval/disapproval of vouchers/invoices, <E T="03">etc.</E> An individual <PRTPAGE P="11"/>COTR may have only the duties specifically identified in a written delegation to him or her by name (<E T="03">i.e.,</E> COTR duties may not be delegated to a position) and has no authority to exceed them.</P>
              <P>(c) Contracting officers may not delegate to the COTR the following authorities:</P>
              <P>(1) The authority to issue task or delivery orders against a contract or any of the agreements defined under FAR 16.7;</P>
              <P>(2) The authority to change any of the terms and conditions of a contract or any of the agreements defined under FAR 16.7;</P>
              <P>(3) The authority to sign contracts or contract modifications;</P>
              <P>(4) The authority to write letters to the contractor that will affect the cost or schedule of the contract. The authority to otherwise write letters to a contractor must require the COTR to send a copy of the letters to the contracting officer for the contract file;</P>
              <P>(5) The authority to approve contractors' final invoices under cost-reimbursement contracts. However, the COTR must make a final payment recommendation to the contracting officer; or</P>

              <P>(6) The authority to commit the Government to any adjustments to the price or cost of the contract or order (<E T="03">e.g.,</E> the contracting officer must sign all pre-negotiation and price negotiation memoranda including those which may be combined into one document for those adjustments valued at $100,000 or less).</P>
              <P>(d) The contracting officer's delegation must include the admonition that the COTR may be personally liable for unauthorized commitments. Contracting officer authority to sign or authorize contractual instruments must not be delegated through a COTR designation or by any means other than a contracting officer warrant.</P>
              <P>(e) The contractor must be notified of the COTR designation in writing and a copy of the COTR letter of appointment also must be provided to the contractor. The contracting officer must provide the COTR with a copy of the COTR designation notification that was sent to the contractor.</P>
              <P>(f) The letter delegating COTR authority must include the contract number, and must include the following information, at a minimum:</P>
              <P>(1) Contracting officer's and contract specialist's/administrator's name and telephone number;</P>
              <P>(2) COTR's specific authority and responsibilities;</P>
              <P>(3) COTR's specific limitations, including the admonition that the COTR may be personally liable for unauthorized commitments;</P>
              <P>(4) Detailed description of the types of files and the content of the files to be maintained by the COTR;</P>

              <P>(5) Reference to meeting applicable requirements for ethics, procurement integrity, no conflict of interest, and proper standards of conduct, including a copy of FAR Part 3, and other regulations, statutes, or directives governing these topics (<E T="03">e.g.,</E> 5 CFR Part 2635 Standards of Conduct);</P>
              <P>(6) A requirement that the COTR acknowledge receipt and acceptance of the letter and return it to the contracting officer;</P>
              <P>(7) A description of the training required and information on obtaining such training.</P>
              <P>(g) <E T="03">Applicability.</E> The eligibility requirements of this subpart must apply to all individuals who are designated by the contracting officer as COTRs.</P>
              <P>(h) <E T="03">Eligibility standards.</E> To be determined eligible for an appointment as a DOL COTR, the following standards must be met:</P>
              <P>(1) The candidate must attend and successfully complete a minimum of a 16-hour basic COTR course; and</P>
              <P>(2) The candidate must attend a minimum of 1 hour of training specifically in procurement ethics, either through courses offered periodically by the Department of Labor, another federal agency's program, or a commercial vendor.</P>
              <P>(i) <E T="03">Limitations.</E> Effective May 27, 2004, each COTR appointment made by the contracting officer must clearly state that the representative is not an authorized contracting officer and does not have the authority under any circumstances to:</P>

              <P>(1) Award, agree to award, or execute any contract, contract modification, notice of intent, or other form of binding agreement;<PRTPAGE P="12"/>
              </P>
              <P>(2) Obligate, in any manner, the payment of money by the Government;</P>
              <P>(3) Make a final decision on any contract matter which is subject to the clause at FAR 52.233-1, Disputes; or</P>
              <P>(4) Terminate, suspend, or otherwise interfere with the contractor's right to proceed, or direct any changes in the contractor's performance that are inconsistent with or materially change the contract specifications.</P>
              <P>(j) <E T="03">Termination.</E> (1) Termination of the COTR's appointment must be made in writing by a contracting officer and must give the effective date of the termination. The contracting officer must promptly modify the contract once a COTR termination notice has been issued. A termination notice is not required when the COTR's appointment terminates upon expiration of the contract.</P>
              <P>(2) COTRs may be terminated for reasons (not an exhaustive listing) such as exceeding their authorities and limitations, conflicts of interest, unethical conduct, failure to perform, reassignment/resignation/retirement, and upon completion of the contract to which assigned.</P>
              <P>(k) <E T="03">Waivers.</E> No individual may serve as a COTR on any contract without the requisite training and signed COTR certificate for the file. In the rare event that there is an urgent requirement for a specific individual to serve as a COTR and the individual has not successfully completed the required training, the HCA may waive the training requirements and authorize the individual to perform the COTR duties.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2901.603-72</SECTNO>
              <SUBJECT>Administrative procurement management reviews.</SUBJECT>
              <P>(a) The Senior Procurement Executive is responsible for performing administrative procurement reviews for each procurement office in the Department of Labor, except the Office of the Inspector General (OIG). The purpose of these reviews is to audit internal controls to ensure compliance with established procurement law, regulations, policies, procedures and applicable directives. The reviews are to emphasize the development and improvement of managerial controls and best practices.</P>
              <P>(b) The administrative procurement review system is a three-pronged approach that includes self-assessment, statistical data for validation, and flexible quality reviews and assessment techniques. This system is required to:</P>
              <P>(1) Evaluate the effectiveness and efficiency of office acquisition systems;</P>
              <P>(2) Assess the adequacy of policies, procedures and regulations governing the acquisition process; and</P>
              <P>(3) Identify and implement changes necessary to improve the systems.</P>
              <P>(c) The Senior Procurement Executive shall establish procurement review procedures, which will focus on:</P>
              <P>(1) Conformance with policies of the FAR, DOLAR and the Department of Labor Manual Series 2-800 and 2-900.</P>
              <P>(2) Conformance with federal reporting requirements for the Department of Labor.</P>

              <P>(3) Understanding of new department-wide or government-wide initiatives (<E T="03">e.g.,</E> E-Procurement).</P>
              <P>(4) Government-wide procedures established by the Office of Management and Budget.</P>
              <P>(d) HCAs are responsible for ensuring contracting activity compliance with law and regulations through the review and oversight process.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2901.7—Determinations and Findings</HD>
            <SECTION>
              <SECTNO>2901.707</SECTNO>
              <SUBJECT>Signatory authority.</SUBJECT>
              <P>A class justification for other than full and open competition must be approved in writing by the same approval authority as for individual justifications in accordance with FAR 6.304(a). The approval level must be determined by the estimated total value of the class.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2902</EAR>
          <HD SOURCE="HED">PART 2902—DEFINITIONS OF WORDS AND TERMS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301, 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2.1—Definitions</HD>
            <SECTION>
              <SECTNO>2902.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>

              <P>(a) Commonly used words and terms are defined in FAR subpart 2.1. This part 2902 gives DOL-specific meanings for some of these words and terms and <PRTPAGE P="13"/>defines other words and terms commonly used in the DOL acquisition process.</P>
              <P>(b) 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>
              <P>
                <E T="03">Competition Advocate</E> The Competition Advocate for the Department of Labor is appointed by the Assistant Secretary for Administration and Management and is defined in FAR 6.5 and 2906.5. If the appointee is recused from a procurement action, the Assistant Secretary for Administration and Management may designate another official to act in that capacity.</P>
              <P>
                <E T="03">Contracting Activity</E> means an agency or component office within the Department of Labor with specific responsibility for managing contract functions pursuant to one or more warrants signed by the Senior Procurement Executive (or the Office of the Inspector General for its contracting activity).</P>
              <P>
                <E T="03">Contracting Officer's Technical Representative</E> means the individual appointed by the contracting officer to represent the Department of Labor's programmatic interests on a Department of Labor contract, task order, or delivery order. This individual is responsible to the contracting officer for overseeing receipt and acceptance of goods/services by the Government, reporting on the contractor's performance, and approving/disapproving payment to the contractor. Authority is otherwise limited to giving technical direction to the contractor within the framework of the contract (see 2901.603-71). This position may go by other titles, such as: a technical point of contact (TPOC) or Contacting Officer's Representative (COR).</P>
              <P>
                <E T="03">Head of Agency</E> (also called agency head), for the FAR and DOLAR only, means the Assistant Secretary for Administration and Management; except that the Secretary of Labor is the Head of Agency for acquisition actions, which by the terms of a statute or delegation must be performed specifically by the Secretary of Labor; the Inspector General is the Head of Agency in all cases for the Office of the Inspector General. Authority to act as the Head of Agency has been delegated to the Assistant Secretary for Employment and Training and the Assistant Secretary for Mine Safety and Health for their respective agencies. For purposes of the Economy Act (determinations and interagency agreements under FAR 17.5) only, the Employee Benefits Security Administration, Employment Standards Administration, Women's Bureau, Office of the Solicitor, Bureau of Labor Statistics, Office of Disability Employment Policy, and the Occupational Safety and Health Administration are delegated contracting authority.</P>
              <P>
                <E T="03">Head of Contracting Activity</E> (HCA) means the official who has overall responsibility for managing the contracting activity, when the contracting activity has more than one person with a warrant issued by the Senior Procurement Executive. In the Department of Labor the following officials are the HCA for their respective organization:</P>
              <P>(i) For the Mine Safety and Health Administration, the Director, Administration and Management, MSHA.</P>
              <P>(ii) For the Employment and Training Administration, the Director, Office of Grants and Contract Management, ETA.</P>
              <P>(iii) For the Office of the Inspector General, the Director, Division of Finance and Administration, OIG.</P>
              <P>(iv) For the Bureau of Labor Statistics, the Director, Division of Administrative Services, BLS.</P>
              <P>(v) For the Office of the Assistant Secretary for Administration and Management and all other agencies not listed in this definition, the Director, Business Operations Center, OASAM.</P>
              <P>
                <E T="03">Senior Procurement Executive</E> means the Deputy Assistant Secretary for Administration and Management as defined at FAR 2.101.</P>
              <CITA>[69 FR 22991, Apr. 27, 2004]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2903</EAR>
          <HD SOURCE="HED">PART 2903—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2903.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2903.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
              <SECTNO>2903.101-1</SECTNO>
              <SUBJECT>General.<PRTPAGE P="14"/>
              </SUBJECT>
              <SECTNO>2903.104</SECTNO>
              <SUBJECT>Procurement integrity.</SUBJECT>
              <SECTNO>2903.104-3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>2903.104-5</SECTNO>
              <SUBJECT>Disclosure, protection, and marking of contractor bid or proposal information and source selection information.</SUBJECT>
              <SECTNO>2903.104-7</SECTNO>
              <SUBJECT>Violations or possible violations of standards of conduct.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2903.2—Contractor Gratuities to Government Personnel</HD>
              <SECTNO>2903.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <SECTNO>2903.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2903.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
              <SECTNO>2903.601</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>2903.602</SECTNO>
              <SUBJECT>Exceptions.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2903.1—Safeguards</HD>
            <SECTION>
              <SECTNO>2903.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2903.101-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The statutory prohibitions and their application to DOL personnel are discussed in the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635 and the supplemental DOL standards of conduct, 5 CFR part 5201. All DOL personnel involved in acquisitions must become familiar with these statutory prohibitions. Any questions concerning them must be referred to an Agency Ethics Official in the Office of the Solicitor. In addition to criminal penalties, the statutes provide that transactions entered into in violation of these prohibitions are voidable (18 U.S.C. 218). Any suspected violations must be reported promptly to the Office of the Inspector General.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2903.104</SECTNO>
              <SUBJECT>Procurement integrity.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2903.104-3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Agency ethics official</E> means the Solicitor or the Associate Solicitor for Legislation and Legal Counsel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2903.104-5</SECTNO>
              <SUBJECT>Disclosure, protection, and marking of contractor bid or proposal information and source selection information.</SUBJECT>
              <P>(a) Government employees serving in the following positions are authorized access to proprietary or source selection information, but only to the extent necessary to perform their official duties:</P>

              <P>(1) Personnel participating in technical evaluation panels (<E T="03">i.e.,</E> source selection board) or personnel evaluating an offeror's or bidder's technical or cost proposal under other competitive procedures, and personnel evaluating protests.</P>
              <P>(2) Personnel assigned to the contracting office.</P>
              <P>(3) The initiator of the procurement request (to include the official having principal technical cognizance over the requirement).</P>
              <P>(4) Small business specialists.</P>
              <P>(5) Personnel assigned to the Office of the Solicitor.</P>
              <P>(6) Personnel assigned to the Department of Labor's Division of Cost Determination and the Defense Contract Audit Agency.</P>
              <P>(7) Personnel assigned to the Division of Acquisition Management Services.</P>
              <P>(8) Members of the Procurement Review Board.</P>
              <P>(9) The Office of the Inspector General.</P>
              <P>(10) Other Government employees authorized by the contracting officer.</P>
              <P>(11) Supervisors, at any level, of the personnel listed in this paragraph (a).</P>
              <P>(b) The originator of information that may be source selection information must consult with the contracting officer or the procurement officer, who must determine whether the information is source selection information. DOL personnel responsible for preparing source selection information as defined in FAR 2.101 must assure that the material is marked with the legend in FAR 3.104-4 at the time the material is prepared.</P>

              <P>(c) Unless marked with the legend “SOURCE SELECTION INFORMATION—SEE FAR 3.104-4,” draft specifications, purchase descriptions, and statements of work could erroneously be released during a market survey in order to determine the capabilities of <PRTPAGE P="15"/>potential competitive sources (see FAR 7.1 and FAR 10).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2903.104-7</SECTNO>
              <SUBJECT>Violations or possible violations of standards of conduct.</SUBJECT>
              <P>(a) The Senior Procurement Executive is the individual designated to receive the contracting officer's report of violations.</P>
              <P>(b) The HCA or designee must refer all information describing an actual or possible violation to the Associate Solicitor for Legislation and Legal Counsel, the Senior Procurement Executive, and Inspector General staff.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2903.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>2903.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <P>Contractor gratuities offered to Government personnel are subject to the restriction under the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2903.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
              <P>Any suspected violations of FAR subpart 3.2 and the clause at FAR 52.203-3, Gratuities, must be reported to the Office of the Inspector General. The authority to determine whether a violation of the Gratuities clause by the contractor, its agent, or another representative, has occurred and the appropriate remedies are delegated to the HCA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2903.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
            <SECTION>
              <SECTNO>2903.601</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>In addition to restrictions placed on current Federal government employees, 18 U.S.C. 207 places some restrictions on contracting with former officers, employees, and elected officials of the executive and legislative branches. Under these prohibitions, contracts with former employees are prohibited for a period of one year from the date of severance of duties, unless an exception is granted as set forth in 2903.602.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2903.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>(a) In accordance with FAR 3.602, only when there is a most compelling reason to do so, is the Assistant Secretary for Administration and Management authorized to except a contract from the policy in FAR 3.601, after the Procurement Review Board and the agency ethics official have reviewed and recommended approval of the exception. However, when time does not permit, the Assistant Secretary for Administration and Management may unilaterally approve an exception. The exception and information supporting the exception must be provided to the contracting officer for their official records.</P>
              <P>(b) When an exception under this subpart is requested, it is submitted through the director of the cognizant program office to the HCA. In the procurement request, the director must describe the basis for the exception from the restrictions of FAR 3.601.</P>
              <P>(c) Except as allowed in paragraph (a) of this section, the Department of Labor may enter into a negotiated contract or an amendment to an existing contract with former employees of DOL within one year of separation (or with firms in which former employees are known to have a substantial interest) only after review and recommendation for approval by the agency ethics official, the Procurement Review Board, and written approval by the Assistant Secretary for Administration and Management.</P>
              <P>(d) Approval of a decision to grant an exception as provided in this section must be documented by a written findings and determination prepared by the requesting official for signature by the Assistant Secretary for Administration and Management. The determination and findings must document compliance with FAR 3.603, FAR 9.5 and DOLAR 2909.5; specify the compelling reason(s) for award; and be placed in the contract files and the files of the Policy Review Board.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="16"/>
          <EAR>Pt. 2904</EAR>
          <HD SOURCE="HED">PART 2904—ADMINISTRATIVE MATTERS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2904.8—Government Contract Files</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2904.800-70</SECTNO>
              <SUBJECT>Contents of contract files.</SUBJECT>
              <APP>Appendix A to Part 2904.</APP>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301, 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2904.8—Government Contract Files</HD>
            <SECTION>
              <SECTNO>2904.800-70</SECTNO>
              <SUBJECT>Contents of contract files.</SUBJECT>
              <P>(a) The reports listed in appendix A to this part are applicable to the Department of Labor.</P>
              <P>(b) HCAs must be responsible for establishing standard contract files for their contracting activities. The HCA must provide one or more representative contract files to the Director, Division of Acquisition Management Services, as requested for comment.</P>
            </SECTION>
            <APPENDIX>
              <EAR>Pt. 2904</EAR>
              <HD SOURCE="HED">Appendix A to Part 2904</HD>
              <GPOTABLE CDEF="s50,r50,r50,r50" COLS="4" OPTS="L2">
                <BOXHD>
                  <CHED H="1">Title of report</CHED>
                  <CHED H="1">Reference</CHED>
                  <CHED H="1">Date due</CHED>
                  <CHED H="1">Submitted to</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Report of Proposed Federal Construction*</ENT>
                  <ENT>29 CFR 1.4</ENT>
                  <ENT>Annually; 20-Aug</ENT>
                  <ENT>ESA Davis Bacon.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Contractor Report of Government Property*</ENT>
                  <ENT>FAR Chapter 45;</ENT>
                  <ENT>Annually; 31-Oct</ENT>
                  <ENT>Business Operations Center.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Major Preference Program Goals and Achievements Report*</ENT>
                  <ENT>DLMS 2 1000</ENT>
                  <ENT>By the 20th of each month</ENT>
                  <ENT>Office of Small Business Programs.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">A-76 &amp; FAIR Act Inventory</ENT>
                  <ENT>FAIR ACT &amp; OMB MEMO</ENT>
                  <ENT>June 30th of each year</ENT>
                  <ENT>Office of Competitive Sourcing.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">SF 294, Subcontracting Report for Individual Contracts</ENT>
                  <ENT>FAR Subpart 19.7;</ENT>
                  <ENT>Semi-annually;</ENT>
                  <ENT>Contracting Officer.</ENT>
                </ROW>
                <ROW>
                  <ENT I="22"/>
                  <ENT>SF 294</ENT>
                  <ENT>April 30; 30-Oct</ENT>
                  <ENT>Office of Small Business Programs.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">SF 295, Summary Subcontract Report</ENT>
                  <ENT>FAR Subpart 19.7;</ENT>
                  <ENT>Semi-annually March 30; September 30</ENT>
                  <ENT>Contracting Officer.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Value Engineering Report*</ENT>
                  <ENT>OMB Circular A-131</ENT>
                  <ENT>Annually; 7-Dec</ENT>
                  <ENT>Office of Acquisition and Management Support Services.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Report on Federal Support to Universities, Colleges, and Nonprofit Institutions</ENT>
                  <ENT>Section 3(a)(7) of the National Science Foundation (NSF) Act</ENT>
                  <ENT>Annually; O/A 15-May</ENT>
                  <ENT>Upon request From National Science Foundation.</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Procurement Forecast Initial and Update</ENT>
                  <ENT>Pub. L. 100-656;</ENT>
                  <ENT>Sept 15 (Init.) and Apr 15 (Update)</ENT>
                  <ENT>Division of Acquisition Management Services.</ENT>
                </ROW>
                <TNOTE>For those reports with an (*), if there was no activity for the period being reported, a negative response for the period must be submitted to the requisitioning office.</TNOTE>
              </GPOTABLE>
              <CITA>[69 FR 22991, Apr. 27, 2004]</CITA>
            </APPENDIX>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="17"/>
        <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 2905</EAR>
          <HD SOURCE="HED">PART 2905—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2905.1—Dissemination of Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2905.101</SECTNO>
              <SUBJECT>Methods of disseminating information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2905.2—Synopsis of Proposed Contract Actions</HD>
              <SECTNO>2905.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2905.4—Release of Information</HD>
              <SECTNO>2905.402</SECTNO>
              <SUBJECT>General public.</SUBJECT>
              <SECTNO>2905.403</SECTNO>
              <SUBJECT>Requests from Members of Congress.</SUBJECT>
              <SECTNO>2905.404</SECTNO>
              <SUBJECT>Release procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2905.5—Paid Advertisements</HD>
              <SECTNO>2905.501</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <SECTNO>2905.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <SECTNO>2905.503</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2905.1—Dissemination of Information</HD>
            <SECTION>
              <SECTNO>2905.101</SECTNO>
              <SUBJECT>Methods of disseminating information.</SUBJECT>
              <P>Contracting officers may only use the Government Point of Entry (GPE) for synopsis and dissemination of information concerning procurement actions. The Division of Acquisition Management Services manages the DOL account.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2905.2—Synopsis of Proposed Contract Actions</HD>
            <SECTION>
              <SECTNO>2905.202</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>The Assistant Secretary for Administration and Management is authorized to make the determination prescribed in FAR 5.202(b). A written determination documenting the reasons why advance notice is not appropriate or reasonable must be submitted by the HCA for appropriate action including communication with the officials listed in FAR 5.202(b).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2905.4—Release Of Information</HD>
            <SECTION>
              <SECTNO>2905.402</SECTNO>
              <SUBJECT>General public.</SUBJECT>
              <P>(a) Unless the HCA determines that disclosure would be prejudicial to the interests of DOL, if a list of interested parties is collected in reference to a solicitation, it may be released upon request.</P>
              <P>(b) Any request for release of information is subject to the Freedom of Information Act and FAR 24.2.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2905.403</SECTNO>
              <SUBJECT>Requests from Members of Congress.</SUBJECT>
              <P>All proposed responses to Congressional inquiries must be prepared and forwarded for coordination with the Office of the Solicitor and the Office of Congressional and Intergovernmental Affairs to determine whether circumstances exist that will allow the release of additional information. In such instances, the Congressional requestor must be furnished an interim reply providing the information that is releasable. The interim reply must describe the problem that precludes release of any requested materials and describe generally what steps, if any, are being taken to make such information available.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2905.404</SECTNO>
              <SUBJECT>Release procedures.</SUBJECT>
              <P>HCAs are authorized to release long-range acquisition estimates under the conditions in FAR 5.404-1.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2905.5—Paid Advertisements</HD>
            <SECTION>
              <SECTNO>2905.501</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <P>This subpart provides policies and procedures for the procurement of paid advertising as covered by 5 U.S.C. 302, and 44 U.S.C. 3701, 3702, and 3703.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2905.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>

              <P>When it is deemed necessary to use paid advertisements in newspapers and trade journals, written authority for <PRTPAGE P="18"/>such publication may be obtained from the HCA or designee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2905.503</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) Prior to obtaining HCA approval, an agency should seek legal review to determine whether it has appropriate legal authority for advertising. The HCA exercising the authority delegated by 2905.502 must do so in accordance with the procedures set forth in FAR 5.503 and those in this section.</P>
              <P>(b) Requests for procurement of advertising must be accompanied by written authority to advertise or publish which sets forth justification and includes the names of newspapers or journals concerned, frequency and dates of proposed advertisements, estimated cost, and other pertinent information.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2906</EAR>
          <HD SOURCE="HED">PART 2906—COMPETITION REQUIREMENTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2906.3—Other Than Full and Open Competition</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2906.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>2906.303</SECTNO>
              <SUBJECT>Justifications.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2906.5—Competition Advocates</HD>
              <SECTNO>2906.501</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2906.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>2906.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) Department of Labor acquisitions must comply with the Department of Labor Manual Series (DLMS) 2, Chapter 830 (available by mail from the Director, Division of Acquisition Management Services, 200 Constitution Ave., NW., Washington, DC 20210-0001), or electronically from <E T="03">http://www.dol.gov/oasam/programs/boc/prb.htm.</E> Any proposed noncompetitive acquisition in excess of the simplified acquisition threshold must be fully justified and, if required by the DLMS, submitted to the DOL Procurement Review Board and approved by the Assistant Secretary for Administration and Management and, in the case of research and development contracts, also by the Assistant Secretary for Policy.</P>
              <P>(b) With the exception of contracts for advisory and assistance services or for research and development, the contracting officer has the authority below the simplified acquisition threshold to approve sole source contracts. The contracting officer is responsible for assuring that proposed acquisitions below the simplified acquisition threshold are in compliance with FAR and DOLAR requirements regarding competition.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2906.303</SECTNO>
              <SUBJECT>Justifications.</SUBJECT>
              <P>The authority of the agency head to determine that only specified make and models of technical equipment will satisfy the agency's need under FAR 6.302-1 is delegated to the HCA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2906.5—Competition Advocate</HD>
            <SECTION>
              <SECTNO>2906.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
              <P>The Assistant Secretary for Administration and Management must appoint a Competition Advocate for the Department of Labor. The appointment will be predicated on an understanding of the competition requirements in the FAR, and particularly small business programs.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2907</EAR>
          <HD SOURCE="HED">PART 2907—ACQUISITION PLANNING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2907.1—Acquisition Plans</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2907.105</SECTNO>
              <SUBJECT>Contents of written acquisition plans.</SUBJECT>
              <SECTNO>2907.107</SECTNO>
              <SUBJECT>Additional requirements for acquisitions involving bundling.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2907.3—Contractor Versus Government Performance</HD>
              <SECTNO>02907.300</SECTNO>
              <SUBJECT>Availability of inventory.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="19"/>
            <HD SOURCE="HED">Subpart 2907.1—Acquisition Plans</HD>
            <SECTION>
              <SECTNO>2907.105</SECTNO>
              <SUBJECT>Contents of written acquisition plans.</SUBJECT>

              <P>The Department of Labor has implemented its acquisition planning system in compliance with FAR 7.1 and internal procedures provided in DLMS 2 section 834. The annual forecast is available for review from: <E T="03">http://www.apps.dol.gov/contract_grant/index.htm.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>2907.107</SECTNO>
              <SUBJECT>Additional requirements for acquisitions involving bundling.</SUBJECT>
              <P>The FAR requirements for justification, review, and approval of bundling of contract requirements also apply to an order from a Federal Supply Schedule contract, Governmentwide acquisition contracts, or other indefinite-delivery contracts if the requirements consolidated under the order meet the definition of “bundling” at FAR 2.101.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2907.3—Contractor Versus Government Performance</HD>
            <SECTION>
              <SECTNO>2907.300</SECTNO>
              <SUBJECT>Availability of inventory.</SUBJECT>

              <P>The Department of Labor's FAIR Act inventory of commercial activities performed by federal employees and inherently governmental functions may be accessed on the Internet at: <E T="03">www.dol.gov</E> under “Doing Business with DOL”.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2908</EAR>
          <HD SOURCE="HED">PART 2908—REQUIRED SOURCES OF SUPPLIES AND SERVICES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2908.4—Federal Supply Schedules</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2908.404</SECTNO>
              <SUBJECT>Using schedules.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2908.4—Federal Supply Schedules</HD>
            <SECTION>
              <SECTNO>2908.404</SECTNO>
              <SUBJECT>Using schedules.</SUBJECT>

              <P>Small business considerations, procedures regarding both prime and subcontracting, and clearances specified in DOLAR 2919 apply to GSA Federal Supply Schedule Orders above the simplified acquisition threshold. Procedures to be followed may be modified by the Office of Small Business Program as appropriate in order to comply with GSA Federal Supply Schedule procedures (<E T="03">e.g.,</E> first tier contracts may be required to report their commercial subcontracting goals to the DOL Office of Small Business Programs).</P>
              <CITA>[69 FR 22991, Apr. 27, 2004]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2909</EAR>
          <HD SOURCE="HED">PART 2909—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2909.1—Responsible Prospective Contractors</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2909.105</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2909.4—Debarment, Suspension, And Ineligibility</HD>
              <SECTNO>2909.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>2909.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <SECTNO>2909.405-1</SECTNO>
              <SUBJECT>Continuation of current contracts.</SUBJECT>
              <SECTNO>2909.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>2909.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>2909.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>2906.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <SECTNO>2909.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2909.5—Organizational and Consultant Conflicts of Interest</HD>
              <SECTNO>2909.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <SECTNO>2909.506</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2909.1—Responsible Prospective Contractors</HD>
            <SECTION>
              <SECTNO>2909.105</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>

              <P>Before awarding a contract, the contracting officer must make a written determination of the otherwise successful bidder's/offeror's responsibility in accordance with FAR 9.105. In addition to past performance information, the contracting officer must insure that the proposed contractor, and any subcontractor representing more than $25,000 in goods or services, does not appear in the “List of Parties Excluded from Federal Procurement” (available on the Internet at <E T="03">www.epls.gov</E>). In addition, contracting officers should base <PRTPAGE P="20"/>their determination of contractor responsibility on a review of the company's “Summary or Financial Report” from Dun &amp; Bradstreet (available on the Internet for a fee at <E T="03">http://www.dnb.com/</E>).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2909.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>2909.402</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) This subpart prescribes DOL policies and procedures governing the debarment and suspension of contractors, the listing of debarred and suspended contractors, contractors declared ineligible (see FAR 9.403) and distribution of the list. This subpart does not apply to Department of Labor debarments or suspensions issued for Davis-Bacon Act and Davis-Bacon Related Act violations, Service Contract Act violations, Affirmative Action/Equal Employment Opportunity violations, or violations under other statutes administered by the Department of Labor.</P>
              <P>(b) <E T="03">Contracting activity officials shall have the following responsibilities.</E> (1) Heads of contracting activity (HCA) shall:</P>

              <P>(i) Provide an effective system to ensure that contracting staffs consult the “List of Parties Excluded from Federal Procurement and Nonprocurement Programs” at <E T="03">http://epls.arnet.gov/</E> before soliciting offers, awarding or extending contracts, or consenting to subcontract.</P>
              <P>(ii) Consider debarment or suspension of a contractor when cause, as defined under FAR 9.406-2 for debarment and FAR 9.407-2 for suspension, is shown. Contracting officers should consult with their appropriate legal counsel before making a decision to initiate debarment or suspension proceedings. If a determination is made that available facts do not justify beginning debarment or suspension proceedings, the file should be documented accordingly. This determination is subject to reconsideration if warranted by new information.</P>
              <P>(iii) When the decision is made to initiate debarment and/or suspension of a contractor, the Senior Procurement Executive must prepare a notice in accordance with FAR 9.406-3(c) or FAR 9.407-3(c). The draft notice, along with the administrative file containing all relevant facts and analysis, must be forwarded to the Senior Procurement Executive, as the debarring and suspending official, following review by the activity's legal counsel.</P>
              <P>(2) The Senior Procurement Executive shall:</P>
              <P>(i) Review the notice and administrative file for sufficiency and provide for review by other DOL officials as considered appropriate;</P>
              <P>(ii) In accordance with FAR 9.406-3(c) or FAR 9.407-3(c), if it is determined that action is warranted, give the contractor prompt notice of the proposed debarment or suspension;</P>
              <P>(iii) Direct additional fact-finding as necessary when material facts are in dispute;</P>
              <P>(iv) Notify the contractor and any affiliates involved of the final decision to debar or suspend, including a decision not to debar or suspend, in accordance with FAR 9.406-3(c) and FAR 9.407-3(c);</P>
              <P>(v) Be responsible for accomplishing the actions required in FAR 9.404(c) within five working days after debarring or suspending a contractor or modifying or rescinding such an action;</P>
              <P>(vi) Maintain Department-wide records of debarred or suspended contractors in accordance with FAR 9.404.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.405</SECTNO>
              <SUBJECT>Effect of listing.</SUBJECT>
              <P>(a) Contractors debarred, suspended, or proposed for debarment are excluded from receiving contracts, and agencies must not solicit offers from, award contracts to, or consent to subcontract with these organizations, unless the HCA determines in writing that there is a compelling reason for such action and the Assistant Secretary for Administration and Management approves such determinations.</P>
              <P>(b) Bids received from any listed contractor in response to an invitation for bids must be entered on the abstract of bids, and rejected unless the HCA determines in writing that there is a compelling reason to consider the bid and the Assistant Secretary for Administration and Management approves such action.</P>

              <P>(c) Proposals, quotations, or offers received from any listed contractor shall not be evaluated for award or included in the competitive range, nor <PRTPAGE P="21"/>shall discussions be conducted with a listed offeror during a period of ineligibility, unless the HCA determines in writing that there is a compelling reason to do so and the Assistant Secretary for Administration and Management approves such action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.405-1</SECTNO>
              <SUBJECT>Continuation of current contracts.</SUBJECT>
              <P>(a) At the time an option is being exercised, contracting officers must review the List of Parties Excluded from Federal Procurement and Nonprocurement Programs. If a contractor or significant subcontractor is identified in the listing, the contracting officer must make a written determination either to proceed or to terminate the contract, and must explain the rationale for the decision. In accordance with FAR 9.405-1, contracting officers may continue contracts or subcontracts in existence at the time a contractor is suspended or debarred, unless it is determined that termination of the contract is in the best interest of the Government. The contracting officer must make such determination in writing, after consulting with the contracting officer's technical representative and legal counsel. The determination must be approved by the HCA.</P>
              <P>(b) Contracting activities must not renew or otherwise extend the duration of current contracts, or consent to subcontracts, with contractors debarred, suspended, or proposed for debarment, unless the HCA states, in writing, the compelling reasons for renewal or extension and the Assistant Secretary for Administration and Management approves such action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2909.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The Senior Procurement Executive is the debarring official for DOL and is authorized to debar a contractor for any of the causes in FAR 9.406-2, using the procedures in 2909.406-3.</P>
              <P>(b) The Senior Procurement Executive is authorized to make an exception regarding debarment by another agency debarring official in accordance with the conditions in FAR 9.406-1(c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> Whenever a DOL employee knows a cause for debarment, as listed in FAR 9.406-2, the appropriate HCA affected must be notified. The contracting officer must consult with the Office of the Solicitor and the Office of the Inspector General, as appropriate, and submit a formal recommendation documenting the cause for debarment to the Senior Procurement Executive.</P>
              <P>(b) <E T="03">Notice of proposal to debar.</E> Based upon review of the recommendation to debar and consultation with the Office of the Solicitor and Office of the Inspector General, as appropriate, the Senior Procurement Executive must initiate proposed debarment by taking the actions listed in FAR 9.406-3(c) and advising the contractor of DOL's rules under 2909.4.</P>
              <P>(c) <E T="03">Fact-finding proceedings.</E> For actions listed under FAR 9.406-3(b)(2), the Senior Procurement Executive must afford the contractor the opportunity to appear at an informal fact-finding proceeding as required by FAR 9.406-3(b)(2)(i). The proceeding must be conducted by the Office of Administrative Law Judges and must be held at a date and location reasonably convenient to the parties concerned. Subject to the provisions of 29 CFR part 18, entitled “Rules Of Practice And Procedure For Administrative Hearings Before The Office Of Administrative Law Judges”, the contractor and any specifically named affiliates, may be represented by counsel or any duly authorized representative. Either party may call witnesses. The proceedings must be conducted expeditiously and in such a manner that each party will have a full opportunity to present all information considered pertinent to the proposed debarment. A transcript of the proceedings must be made available to the contractor under the conditions in FAR 9.406-3(b)(2)(ii).</P>
              <P>(d) <E T="03">Decision and notice.</E> The Senior Procurement Executive shall make a decision on imposing debarment in accordance with the procedures in FAR 9.406-3(d), findings of fact of the Administrative Law Judge, and the conditions in FAR 9.406-4 and 9.406-5. Notice of the decision must be provided to the contractor and any affiliates involved <PRTPAGE P="22"/>in accordance with the procedures in FAR 9.406-3(e).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <P>(a) The Senior Procurement Executive is the suspending official for DOL and is authorized to suspend a contractor for any of the causes in FAR 9.407-2, using the procedures in 2909.406-3.</P>
              <P>(b) The Senior Procurement Executive is authorized to make an exception, regarding suspension by another agency suspending official under the conditions in FAR 9.407-1(d).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> Whenever a DOL employee knows of a cause for suspension, as listed in FAR 9.407-2, the appropriate HCA affected must be notified. The HCA must consult with the Office of the Solicitor and the Office of the Inspector General, as appropriate, and submit a formal recommendation documenting the cause for suspension, to the Senior Procurement Executive.</P>
              <P>(b) <E T="03">Notice of suspension.</E> Based upon review of the recommendation to suspend and consultation with the Office of the Solicitor and the Office of the Inspector General, as required, the Senior Procurement Executive will initiate suspension by taking the actions listed in FAR 9.407-3(c) and advising the contractor of DOL's rules under this subpart.</P>
              <P>(c) <E T="03">Fact-finding proceedings.</E> For actions listed under FAR 9.407-3(b)(2), the Senior Procurement Executive must afford the contractor the opportunity to appear at informal proceedings, as required by FAR 9.407-3(b)(2)(i). Either party may call witnesses. The proceedings must be conducted expeditiously and in such a manner that each party will have a full opportunity to present all information considered pertinent to the proposed suspension.</P>
              <P>(d) <E T="03">Suspension decisions.</E> The Senior Procurement Executive must make a final decision on suspension as prescribed in FAR 9.407-3(d). Notice of the decision must be provided to the contractor and any affiliates involved, in accordance with the provisions in FAR 9.407-3(d)(4).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2909.5—Organizational and Consultant Conflicts of Interest</HD>
            <SECTION>
              <SECTNO>2909.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>(a) The Senior Procurement Executive is delegated authority by the Assistant Secretary for Administration and Management to waive any general rule or procedure in FAR 9.5 when its application in a particular situation would not be in the Government's best interest.</P>
              <P>(b) Requests for waivers must be made by the HCA to the PE. Each request must include:</P>
              <P>(1) An analysis of the facts involving the potential or actual conflict including benefits and detriments to the Government and prospective contractors;</P>
              <P>(2) A discussion of the factors which preclude avoiding, neutralizing, or mitigating the conflict; and</P>
              <P>(3) Identification of the provision(s) in FAR 9.5 to be waived.</P>
              <P>(c) In making determinations under this subpart the Senior Procurement Executive must request the opinion of the Office of the Solicitor, Division of Legislation and Legal Counsel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2909.506</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) If a prospective contractor disagrees with the decision of a contracting officer regarding an organizational conflict of interest and requests higher level review as referred to in FAR 9.506, the matter must be referred to the Office of the Solicitor, Associate Solicitor for Legislation and Legal Counsel, and the Director, Division of Acquisition Management Services.</P>
              <P>(b) Referrals must be made by the HCA concerned and include the contracting officer's decision and the position of the prospective contractor.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2910</EAR>
          <HD SOURCE="HED">PART 2910—MARKET RESEARCH</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SECTION>
            <SECTNO>2910.002</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>

            <P>(a) In accordance with FAR 6.302-1(c), purchase descriptions must not specify a product, or specific feature of a product, peculiar to a manufacturer unless they are justified to the contracting officer in writing by the office initiating <PRTPAGE P="23"/>the purchase request. The justification must state that the product, or specific product feature, is essential to the Government's requirements and other similar products or features will not meet these requirements. This determination must be signed by a representative of the office originating the request and must accompany the purchase requisition submitted to the appropriate contracting office. If such a justification is not made, the contracting officer may assume that another make and model or a generic product could equally meet the DOL requirement.</P>

            <P>(b) In accordance with FAR 10.002(b), the requisitioning office must submit to the contracting officer information demonstrating that a variety of products from various commercial sources have been considered. This requirement is not necessary for required sources (See FAR 8.001). Orders to be placed against non-mandatory sources, such as the Federal Supply Schedules, or other Governmentwide Acquisition Contracts, should include product information concerning multiple sources based on research from <E T="03">www.contractdirectory.gov</E> site or other sources. When documented in this manner, the contracting officer may rely on this information in developing a procurement strategy, or for documenting the comparison of catalogs or pricelists.</P>
            <CITA>[69 FR 22991, Apr. 27, 2004]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 2911</EAR>
          <HD SOURCE="HED">PART 2911—DESCRIBING AGENCY NEEDS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2911.1—Selecting And Developing Requirements Documents</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2911.103</SECTNO>
              <SUBJECT>Market acceptance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2911.5—Liquidated Damages</HD>
              <SECTNO>2911.501</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2911.1—Selecting And Developing Requirements Documents</HD>
            <SECTION>
              <SECTNO>2911.103</SECTNO>
              <SUBJECT>Market acceptance.</SUBJECT>
              <P>The authority of the Head of an Agency under FAR 11.103(a), to require offerors to demonstrate that the items offered have either achieved commercial market acceptance or been satisfactorily supplied to an agency under current or recent contracts for the same or similar requirements, and otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation, is delegated to the HCA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2911.5—Liquidated Damages</HD>
            <SECTION>
              <SECTNO>2911.501</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>In accordance with FAR 11.501(d), the authority of the Head of Agency to recommend to the Department of Treasury, Commissioner, Financial Management Services, that the amount of a contractor's liquidated damages be waived or reduced in whole or in part, is delegated to the HCA.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2912</EAR>
          <HD SOURCE="HED">PART 2912—ACQUISITION OF COMMERCIAL ITEMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2912.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2912.302</SECTNO>
              <SUBJECT>Tailoring of provisions and clauses for the acquisition of commercial items.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2912.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items</HD>
            <SECTION>
              <SECTNO>2912.302</SECTNO>
              <SUBJECT>Tailoring of provisions and clauses for the acquisition of commercial items.</SUBJECT>

              <P>In accordance with FAR 12.302(c), a request for waiver to tailor terms inconsistent with customary commercial <PRTPAGE P="24"/>practice must be documented in a written justification by the contracting officer, and may be approved by the HCA on an individual or class basis.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2913</EAR>
          <HD SOURCE="HED">PART 2913—SIMPLIFIED ACQUISITION PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2913.1—Procedures</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2913.106-3</SECTNO>
              <SUBJECT>Soliciting competition, evaluation of quotations or offers, award and documentation.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2913.2—Actions At Or Below The Micro-Purchase Threshold</HD>
              <SECTNO>2913.201</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2913.3—Simplified Acquisition Methods</HD>
              <SECTNO>2913.301</SECTNO>
              <SUBJECT>Governmentwide commercial purchase card.</SUBJECT>
              <SECTNO>2913.307</SECTNO>
              <SUBJECT>Forms.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2913.1—Procedures</HD>
            <SECTION>
              <SECTNO>2913.106-3</SECTNO>
              <SUBJECT>Soliciting competition, evaluation of quotations or offers, award and documentation.</SUBJECT>

              <P>In accordance with FAR 13.106-3(b), simplified acquisition files must contain documentation of the factors considered in making an award in excess of the micro-purchase threshold. When other than the lowest responsive quotation from a responsible supplier is used as the basis for a purchase, the contracting officer must identify the basis (<E T="03">i.e.,</E> best value) of the award and include in the purchase file documentation of the reasons for rejecting any lower quotation and the name of the individual responsible for making the determination to award to other than the lowest priced quotation. The contracting officer has broad discretion in determining the award of a purchase order, which may be based on the factors listed in FAR 13.106-3. This requirement does not necessitate a separate determination if the procurement file contains preprinted standardized classifications for award.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2913.2—Actions at or Below the Micro-Purchase Threshold</HD>
            <SECTION>
              <SECTNO>2913.201</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The Government commercial purchase card must be used in preference to other methods of procurement for purchases up to the micro-purchase threshold. Other small purchase methods (blanket purchase agreements, third party drafts, and purchase orders) may be used in lieu of the Government purchase card when it is more cost-effective or practicable.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2913.3—Simplified Acquisition Methods</HD>
            <SECTION>
              <SECTNO>2913.301</SECTNO>
              <SUBJECT>Governmentwide commercial purchase card.</SUBJECT>
              <P>(a) The Government purchase card has far fewer requirements for documentation than other methods of purchasing. However, the same legal restrictions apply to credit card purchases that apply to other purchases using appropriated funds. If a purchase cardholder has questions about the lawfulness of a particular purchase, he or she must initially consult his or her appropriate office purchase card administrator, who will consult the Office of the Solicitor as necessary.</P>
              <P>(b) GAO decisions surrounding the concept of the “availability of appropriations” are often stated in terms of whether appropriated funds are or are not “legally available” for a given expenditure. Restrictions on the purposes for which appropriated funds may be used come from a variety of sources, including the DOL Appropriations Acts, and decisions of the Comptroller General and his predecessor, the Comptroller of the Treasury.</P>

              <P>(c) HCAs, administrative officers, and contracting officers are encouraged to review the GAO publication entitled Principles of Federal Appropriations Law. This document must be consulted when developing Office/Agency Purchase/Credit Card Program procedures. A number of the more common restrictions which “accounting officers of the Government” have had frequent occasion to consider and apply include, for example:<PRTPAGE P="25"/>
              </P>
              <P>(1) Payment of attorney's fees;</P>
              <P>(2) Purchase of food, entertainment or recreation;</P>
              <P>(3) Payment of personal membership fees; and</P>
              <P>(4) Payment of personal expense items such as gifts for employees, and entry fees for contests.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2913.307</SECTNO>
              <SUBJECT>Forms.</SUBJECT>
              <P>(a) In accordance with FAR 13.307, contracting officers are encouraged to use the Standard Form (SF) SF-1449, when executing commercial acquisitions. Agencies may use forms other than the SF-1449 and may print on those forms the clauses considered to be suitable for these purchases. In these instances, alternate forms should conform with the Standard Form to the maximum extent practicable.</P>
              <P>(b) The SF-30 is to be used to modify a purchase order.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="26"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 2914</EAR>
          <HD SOURCE="HED">PART 2914—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2914.4—Opening of Bids and Award of Contract</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2914.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>
              <SECTNO>2914.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <SECTNO>2914.408</SECTNO>
              <SUBJECT>Award.</SUBJECT>
              <SECTNO>2914.408-1</SECTNO>
              <SUBJECT>General.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2914.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>2914.404-1</SECTNO>
              <SUBJECT>Cancellation of invitations after opening.</SUBJECT>

              <P>The authority of the agency head in FAR 14.404-1(c) and (f) to make a <E T="03">written</E> determination to cancel an invitation for bids and reject all bids after opening and to authorize completion of the acquisition through negotiation is delegated to the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2914.407-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>(a) The authority to make determinations, as conferred by FAR 14.407-3(e) is delegated to the HCA, without power of redelegation, but only after consultation with the Office of the Solicitor. All such determinations shall be documented in the contract file.</P>
              <P>(b) The following procedures must be followed when submitting doubtful cases of mistakes in bids to the Comptroller General for an advance decision, as provided by FAR 14.407-3(i).</P>
              <P>(1) Requests must be made by the HCA after consultation with the Office of the Solicitor.</P>
              <P>(2) Requests must be in writing, dated, signed by the requestor, addressed to the Comptroller General of the United States, General Accounting Office, Washington, DC 20548, and contain the following:</P>
              <P>(i) The name and address of the party requesting the decision; and</P>
              <P>(ii) A statement of the question to be decided, a presentation of all relevant facts, a statement of the requesting party's position with respect to the question, and copies of all pertinent records and supporting documentation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2914.408</SECTNO>
              <SUBJECT>Award.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2914.408-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) When only one bid is received in response to an invitation for bids, such bid may be considered and accepted if the contracting officer makes a written determination that:</P>
              <P>(1) The specifications used in the invitation were not unduly restrictive;</P>
              <P>(2) Adequate competition was solicited and it could have been reasonably assumed that more than one bid would have been submitted;</P>
              <P>(3) The price is reasonable; and</P>
              <P>(4) The bid is otherwise in accordance with the invitation for bids.</P>
              <P>(b) Such a determination must be placed in the contract file.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2915</EAR>
          <HD SOURCE="HED">PART 2915—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2915.4—Contract Pricing</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2915.405-70</SECTNO>
              <SUBJECT>Determining fair and reasonable price.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2915.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes</HD>
              <SECTNO>2915.508</SECTNO>
              <SUBJECT>Discovery of mistakes.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2915.6—Unsolicited Proposals</HD>
              <SECTNO>2915.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
              <SECTNO>2915.605</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <SECTNO>2915.606</SECTNO>
              <SUBJECT>Agency 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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="27"/>
            <HD SOURCE="HED">Subpart 2915.4—Contract Pricing</HD>
            <SECTION>
              <SECTNO>2915.405-70</SECTNO>
              <SUBJECT>Determining fair and reasonable price.</SUBJECT>
              <P>(a) Where the contractor insists on a price or demands a profit or fee that the contracting officer considers unreasonable and the contracting officer has taken all authorized actions to resolve the matter (see FAR 15.402), the contract action must be referred to the HCA for final resolution.</P>
              <P>(b) Resolution under paragraph (a) of this section must be documented and signed by the HCA and included in the contract file.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2915.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes</HD>
            <SECTION>
              <SECTNO>2915.508</SECTNO>
              <SUBJECT>Discovery of mistakes.</SUBJECT>
              <P>(a) The HCA is authorized to make the administrative determinations in FAR 15.508 after consultation with the Office of the Solicitor as required by FAR 14.407-4. This authority may not be redelegated.</P>
              <P>(b) The contracting officer must process a mistake and prepare a case file in accordance with the requirements of FAR 14.407-4(e)(2). The file must be submitted to the HCA for final determination.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2915.6—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>2915.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
              <P>(a) HCAs shall be the preliminary contacts for unsolicited proposals. This responsibility may be delegated.</P>
              <P>(b) HCAs must establish within their agencies procedures for handling unsolicited proposals to ensure that unsolicited proposals are controlled, evaluated, safeguarded and disposed of in accordance with FAR 15.6.</P>
              <P>(c) The HCA must not forward for consideration an unsolicited proposal, if the proposal resembles an upcoming solicitation or a procurement identified in the current annual acquisition plan.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2915.605</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <P>In addition to the contents required by FAR 15.605, unsolicited proposals for research should contain a commitment by the offeror to include cost-sharing or should represent a significant cost savings to the Department of Labor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2915.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <P>When an unsolicited proposal is received by an official of the Department of Labor, the recipient of the proposal must forward it to the HCA. The HCA must address the requirements of FAR 15.604. The HCA must determine if there is an office(s) within the Department of Labor whose mission could be impacted by the proposal. If there is, the HCA must designate a recipient within that office as an “assignee”, and take the following action:</P>
              <P>(a) Within seven (7) working days of receipt, the HCA must forward the proposal to the assignee along with instructions concerning the security, review and disposition of the document.</P>
              <P>(1) Inform the offeror of this transfer in writing (preferably by facsimile or other electronic means).</P>
              <P>(2) Within one (1) month of receipt of the unsolicited proposal by the assignee, the office receiving the proposal must determine the merit of the unsolicited proposal.</P>
              <P>(i) If the office finds insufficient merit to consider the unsolicited proposal further, then a letter will be sent to inform the offeror that their proposal will not be considered further, and is not being retained.</P>

              <P>(ii) If, after a comprehensive evaluation as defined by FAR 15.606-2, the office finds merit in the proposal, it must consult with a Department of Labor contracting officer for direction in complying with FAR 15.607. If not excluded by a condition of FAR 15.607(a), a requisition may be prepared in accordance with FAR 15.607(b). If the requirement exceeds the simplified acquisition threshold inclusive of options then a request must be prepared for the Procurement Review Board in accordance with Department of Labor procedures stated in Department of Labor Manual Series 2-830 (available by mail from the Division of Acquisition Management Services).<PRTPAGE P="28"/>
              </P>
              <P>(b) If within one (1) month of receipt (by the HCA) no assignee can be identified, the HCA must notify the offeror that the proposal is not being considered further.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2916</EAR>
          <HD SOURCE="HED">PART 2916—CONTRACT TYPES</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>2916.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2916.5—Indefinite-Delivery Contracts</HD>
              <SECTNO>2916.505</SECTNO>
              <SUBJECT>Ordering.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2916.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
              <SECTNO>2916.603-2</SECTNO>
              <SUBJECT>Application.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>2916.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part describes types of contracts that may be used in acquisitions. It further prescribes policies and procedures for implementing contracts.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2916.5—Indefinite-Delivery Contracts</HD>
            <SECTION>
              <SECTNO>2916.505</SECTNO>
              <SUBJECT>Ordering.</SUBJECT>
              <P>In accordance with FAR 16.505(b)(5), the Department of Labor Task Order and Delivery Order Ombudsman is the DOL Competition Advocate (see DOLAR part 2902).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2916.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
            <P>Task orders against DOL contracts and orders against multi-agency or Governmentwide contracts for services above the micropurchase threshold must comply with the provisions of FAR 16.505.</P>
            <SECTION>
              <SECTNO>2916.603-2</SECTNO>
              <SUBJECT>Application.</SUBJECT>
              <P>The HCA is authorized to extend the period for definitization of 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>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2917</EAR>
          <HD SOURCE="HED">PART 2917—SPECIAL CONTRACTING METHODS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>2917.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2917.2-Options</HD>
              <SECTNO>2917.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
              <SECTNO>2917.207</SECTNO>
              <SUBJECT>Exercising options.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2917.5—Interagency Acquisitions Under The Economy Act</HD>
              <SECTNO>2917.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>2917.501</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>2917.502</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>2917.503</SECTNO>
              <SUBJECT>Determinations and findings requirements.</SUBJECT>
              <SECTNO>2917.504</SECTNO>
              <SUBJECT>Ordering procedures.</SUBJECT>
              <SECTNO>2917.504-70</SECTNO>
              <SUBJECT>Signature authority and internal procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 31 U.S.C. 1535; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>2917.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part implements polices and procedures stated in FAR part 17.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2917.2—Options</HD>
            <SECTION>
              <SECTNO>2917.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
              <P>The HCA may, in unusual circumstances, approve option quantities in excess of the 50 percent limit prescribed in FAR 17.203(g)(2). The documentation required by FAR 17.205(a) must include a written justification to fully support the need for such action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2917.207</SECTNO>
              <SUBJECT>Exercising options.</SUBJECT>
              <P>The contracting officer must use a standardized determination and finding before exercising an option in accordance with FAR 17.207(f).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2917.5—Interagency Acquisitions Under The Economy Act</HD>
            <SECTION>
              <SECTNO>2917.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart establishes DOL policy and procedures to assure the appropriate and consistent use of interagency acquisitions under the Economy Act (31 U.S.C. 1535) as prescribed by FAR 17.5.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="29"/>
              <SECTNO>2917.501</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Interagency Acquisition</E> means a procedure by which a DOL agency obtains needed supplies or services from, or through, another DOL agency or Federal agency, and appropriated funds are obligated.</P>
              <P>
                <E T="03">Interagency Agreement</E> means the legal instrument used for an interagency acquisition to exchange funds or property between two DOL organizations or between a DOL agency and another Federal agency. This instrument is used when the DOL organization meets the definition of either the Requesting Agency or the Servicing Agency. “Interagency Agreement” and “Interagency Acquisition” does not include:</P>
              <P>(1) Agreements involving supplies and services acquired from or through mandatory sources, as described in FAR part 8;</P>
              <P>(2) Contracts with the Small Business Administration based upon Section 8(a) of the Small Business Act or a HUBZone small business under the Historically Underutilized Business Zone (HUBZone) Act of 1997;</P>
              <P>(3) Cooperative agreements and grants; or</P>
              <P>(4) Any agreement or acquisition where a statute authorizes exception.</P>
              <P>
                <E T="03">Military Interdepartmental Procurement Request (MIPR)</E> means a type of interagency agreement used to place orders for supplies and non-personal services with a military department.</P>
              <P>
                <E T="03">Requesting Agency</E> means the Federal agency that needs the supplies or services, and is obligating the funds to provide for the costs of performance.</P>
              <P>
                <E T="03">Servicing Agenc</E>y means the Federal agency which is providing the supplies or performing the services, directly or indirectly, and will be receiving the funds to provide for the costs of performance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2917.502</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) <E T="03">Policy.</E> It is the policy of DOL to require that interagency agreements are written to assure that the obligation of fiscal year funds is valid, that statutory authority exists to obtain or perform the stated requirements, that the stated requirements are consistent with DOL's mission responsibilities, and that each agreement complies with applicable laws and regulations.</P>
              <P>(b) <E T="03">Applicability.</E> The provisions of this subpart apply to interagency acquisitions and agreements under the Economy Act.</P>
              <P>(c) <E T="03">Appropriations principles.</E> The appropriate use of interagency acquisitions embodies several principles of Federal appropriations law.</P>
              <P>(1) In order to record a valid obligation of appropriations, 31 U.S.C. 1501 imposes the requirements that interagency agreements be:</P>

              <P>(i) A binding written agreement for specific goods or services to meet an existing <E T="03">bona fide</E> need;</P>
              <P>(ii) For a purpose authorized by law; and</P>
              <P>(iii) Executed and obligated by the receiving agency before the expiration of available funds.</P>
              <P>(2) The Economy Act authorizes interagency acquisitions and provides for payment in advance, as well as reimbursement to the appropriation account to which the performance costs have been charged. The Economy Act further authorizes the servicing agency, as an alternative to fulfilling the requirement through internal resources, to obtain the needed supplies or services by contract.</P>
              <P>(3) An agreement entered into under the Economy Act is recorded as an obligation by the requesting agency the same as a contract. However, under the Economy Act, the obligated appropriations must be deobligated upon the date of “expiration” of the appropriation account to the extent that the servicing agency has not incurred obligations through charged costs or under a contract.</P>
              <P>(4) Within DOL, the DOL agencies have a number of statutory authorities available for entering into interagency agreements. Each DOL agency, in consultation with the Office of the Solicitor, must be responsible for determining those authorities, as well as constraints applicable to the use of advance payments and contractors, and set-up procedures.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2917.503</SECTNO>
              <SUBJECT>Determinations and findings requirements.</SUBJECT>
              <P>
                <E T="03">Applicability.</E> Before the execution of an interagency agreement under the <PRTPAGE P="30"/>Economy Act, the contracting officer, or other authorized official, must sign the determination required in FAR 17.503 and 31 U.S.C. 1535.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2917.504</SECTNO>
              <SUBJECT>Ordering procedures.</SUBJECT>
              <P>(a) Requests for the processing of interagency agreements must be submitted to the procurement office serving the requisitioning office.</P>
              <P>(b) The procurement request must state whether the work is to be performed by a DOL organization, a Federal agency other than DOL, or through one of these entities by a contractor.</P>
              <P>(c) Where the Economy Act is to be used as the authority for an interagency acquisition, the requisitioning office must include the facts which support the conclusion that it is more economical to obtain the required supplies or services through the proposed interagency agreement, rather than by direct contract with a commercial concern. Current market prices or recent procurement prices may be used in this process.</P>
              <P>(d) Orders placed under interagency agreements may take any form that is legally sufficient and reflects the agreement of the parties.</P>
              <P>(e) The contracting officer, or authorized official, must assure compliance with the ordering procedures and payment provisions prescribed in FAR 17.504 and FAR 17.505, and require inclusion of the following provisions in all interagency agreements and/or orders placed against them:</P>
              <P>(1) Legislative authority;</P>
              <P>(2) Period of performance;</P>
              <P>(3) Dollar amount of agreement;</P>
              <P>(4) Billing provisions, including the name and address of the following offices:</P>
              <P>(i) Designated office to receive the required deliverables; and</P>
              <P>(ii) Designated office to receive billings and process payments;</P>
              <P>(5) Modification and termination provisions; and</P>
              <P>(6) Other provisions, as appropriate.</P>
              <P>(f) The contracting officer must assure that each interagency agreement or order placed against it includes a reference number assigned by each of the parties. Such numbers must be assigned in accordance with the existing procedures established by the respective organizations.</P>
              <P>(g) Modifications to existing interagency agreements may be accomplished through the use of an SF 30, Amendment of Solicitation/Modification of Contract, or through any other format acceptable to the parties.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2917.504-70</SECTNO>
              <SUBJECT>Signature authority and internal procedures.</SUBJECT>
              <P>(a) A DOL contracting officer, HCA, Agency Head, or another official designated by the Assistant Secretary for Administration and Management in accordance with FAR 17.503(c), must sign interagency agreements and/or orders placed against them which will result in a procurement action by the requesting or servicing agency.</P>
              <P>(b) Internal procedures (DLMS 3-1700) require DOL Agency Heads to provide notice to the Director, Executive Secretariat of the signing of all new Federal Interagency Agreements and deleting expired agreements.</P>
              <P>(c) Agencies should be aware that, in addition to the requirements of this subpart, there are various other internal Departmental procedures that apply to various types of agreements. Agencies should consult with the Office of the Solicitor and the Office of the Assistant Secretary for Administration and Management, as appropriate.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="31"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <RESERVED>PART 2918 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 2919</EAR>
          <HD SOURCE="HED">PART 2919—SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>2919.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2919.2—Policies</HD>
              <SECTNO>2919.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <SECTNO>2919.202</SECTNO>
              <SUBJECT>Specific policies.</SUBJECT>
              <SECTNO>2919.202-1</SECTNO>
              <SUBJECT>Encouraging small business participation in acquisitions.</SUBJECT>
              <SECTNO>2919.202-2</SECTNO>
              <SUBJECT>Locating small business sources.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2919.5—Set-Asides for Small Business</HD>
              <SECTNO>2919.502</SECTNO>
              <SUBJECT>Setting aside acquisitions.</SUBJECT>
              <SECTNO>2919.505</SECTNO>
              <SUBJECT>Rejecting Small Business Administration recommendations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2919.7—The Small Business Subcontracting Program</HD>
              <SECTNO>2919.704</SECTNO>
              <SUBJECT>Subcontracting plan requirements.</SUBJECT>
              <SECTNO>2919.705-1</SECTNO>
              <SUBJECT>General support for the program.</SUBJECT>
              <SECTNO>2919.705-5</SECTNO>
              <SUBJECT>Awards involving subcontracting plans.</SUBJECT>
              <SECTNO>2919.705-6</SECTNO>
              <SUBJECT>Post-award responsibilities of the contracting officer.</SUBJECT>
              <SECTNO>2919.706</SECTNO>
              <SUBJECT>Responsibilities of the cognizant administrative contracting officer.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2919.8—Contracting with the Small Business Administration (The 8(a) Program)</HD>
              <SECTNO>2919.812</SECTNO>
              <SUBJECT>Contract administration.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>2919.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part implements FAR part 19 and small business programs at the Department of Labor.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2919.2—Policies</HD>
            <SECTION>
              <SECTNO>2919.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>(a) It is the policy of the Department of Labor to provide maximum practicable opportunities to small businesses in acquisitions.</P>

              <P>(b) Management responsibilities for small and disadvantaged business utilization are the responsibility of the Director, Office of Small Business Programs. This individual is responsible for performing all functions and duties prescribed in FAR 19.2 including appointing, as prescribed in FAR 19.201(d)(8), a small business specialist (SBS) for each contract office. The Department of Labor Manual Series (DLMS), Chapter 2 1000, addresses the implementation of the preference programs in procurement including HUBZone, Subcontracting Plans, Standard Form 294 (Subcontracting Report for Individual Contracts), and the report, Standard Form 295 (Summary Subcontracting Report) submission, <E T="03">et al.</E>
              </P>
              <P>(c) All DOL procurements over the simplified acquisition threshold, whether being conducted via open market or by ordering from a pre-existing contract vehicle such as GSA Schedule, must be reviewed and receive a recommendation by the Office of Small Business Programs, the Department of Labor's Office of Small Disadvantaged Business Utilization, prior to being advertised. The Acquisition Screening and Review Form DL-1-2004 shall be used for this purpose and the statement of work and market survey documentation shall be submitted to Office of Small Business Programs with the request for review.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.202</SECTNO>
              <SUBJECT>Specific policies.</SUBJECT>

              <P>Contracting officers, administrative officers and program management shall ensure that procurements are structured and conducted to afford small businesses the maximum practicable opportunity to participate in DOL's prime and subcontracts. Administrative officers will review requisitions that will result in an award of $2 million or more using available information to certify whether the acquisition would constitute a “bundled contract” under the definition provided in FAR 2.101 in accordance with procedures established by the Office of Small Business Programs. Each certification will be submitted to the Division of Acquisition Management Services, and included with the requisition <PRTPAGE P="32"/>to the contracting officer. Reports will be provided to the Office of Small Business Programs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.202-1</SECTNO>
              <SUBJECT>Encouraging small business participation in acquisitions.</SUBJECT>
              <P>During the performance of a contract, the contracting officer will consider performance against subcontracting plan goals, objectives and planned efforts before exercising an optional period of performance. The contracting officer will document the evaluation of the contractor's actual performance using SF-294 data compared to their approved subcontracting plan goals.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.202-2</SECTNO>
              <SUBJECT>Locating small business sources.</SUBJECT>

              <P>Any procurement conducted on an unrestricted basis will include solicitations to small businesses of each category with legislatively established government-wide procurement goals (<E T="03">e.g.,</E> small, small disadvantaged, women-owned small, HUBZone and service disabled veteran-owned small businesses) to the extent practicable.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2919.5—Set-Asides for Small Business</HD>
            <SECTION>
              <SECTNO>2919.502</SECTNO>
              <SUBJECT>Setting aside acquisitions.</SUBJECT>
              <P>Contracting officers will conduct market surveys specifically to determine whether procurements should be conducted via 8(a) procedures, HUBZone procedures or as small business set-asides. If a reasonable expectation exists that at least two responsible small businesses may submit offers at fair market prices (three responsible small businesses in procurements via GSA Federal Supply Schedule), then the procurement will be set aside for small business. Market surveys will be documented in all procurement actions not reserved for small businesses.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.505</SECTNO>
              <SUBJECT>Rejecting Small Business Administration recommendations.</SUBJECT>
              <P>When the SBA Procurement Center Representative appeals a “rejection of an SBA recommendation” as referenced in FAR 19.505(b) and (c), the appeal must be referred to the Assistant Secretary for Administration and Management who is authorized to make a final decision.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2919.7—The Small Business Subcontracting Program</HD>
            <SECTION>
              <SECTNO>2919.704</SECTNO>
              <SUBJECT>Subcontracting plan requirements.</SUBJECT>
              <P>Contracting Officers will refer subcontracting plans to the Office of Small Business Programs for review and recommendation before awarding contracts that require subcontracting plans. Contracting officers will document the substance of any agreement with the contractor that permits performance at less than the stated goals recommended by the Office of the Small Business Programs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.705-1</SECTNO>
              <SUBJECT>General support for the program.</SUBJECT>
              <P>Contracting officers will make available a significant number of award points for quality of the subcontracting plan. High-rated subcontract plans will incorporate the highest yield of subcontracting to all categories of small businesses when compared to DOL or separately negotiated agency subcontracting goals on a dollar and percentage basis. Conversely, prime small businesses will be compared favorably to large businesses with subcontract goals, but may also be given the maximum score for qualifying under multiple small business categories. Contracting officers may also make available a significant number of award points for performance against previous subcontracting plan goals and efforts to achieve those goals.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.705-5</SECTNO>
              <SUBJECT>Awards involving subcontracting plans.</SUBJECT>
              <P>The Office of Small Business Programs will review subcontracting plans and SF 295 submissions for performance against business goals negotiated between the Department of Labor and the Small Business Administration.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.705-6</SECTNO>
              <SUBJECT>Post-award responsibilities of the contracting officer.</SUBJECT>

              <P>(a) Even when a subcontracting plan was submitted to and approved by the Office of Small Business Programs before award, the contracting officer upon award, amendment, or significant <PRTPAGE P="33"/>modification of a contract, must forward to the Director, Office of Small Business Programs, a copy of the subcontracting plan that was incorporated into a contract or contract modification.</P>
              <P>(b) Each contracting activity must maintain a list of active prime contracts containing subcontracting plans.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2919.706</SECTNO>
              <SUBJECT>Responsibilities of the cognizant administrative contracting officer.</SUBJECT>
              <P>Contracting officers must collect annual and semiannual subcontracting reports from contractors with established subcontracting plans. Copies of the report, Standard Form 294 (Subcontracting Report for Individual Contracts), and the report, Standard Form 295 (Summary Subcontracting Report), must be forwarded to the Director, Office of Small Business Programs, not later than the 30th day of the month following the close of the reporting period. If the contractor has not met the goals for the reporting period, the contracting officer will provide an acknowledgement to the contractor and request corrective action to be taken. If goals are not met in subsequent periods, the contracting officer must consider factors that would demonstrate a good faith effort, and take appropriate action including assessing liquidated damages in accordance with FAR 52.219-16, and/or not exercising subsequent option periods.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2919.8—Contracting with the Small Business Administration (The 8(a) Program)</HD>
            <SECTION>
              <SECTNO>2919.812</SECTNO>
              <SUBJECT>Contract administration.</SUBJECT>
              <P>(a) Contracting officers, or designees, must conduct periodic evaluations of the performance of an 8(a) contract at various stages of the contract period of performance. Any problems encountered during the performance evaluation, which cannot be resolved, must be referred to the Office of Small Business Programs for subsequent review and discussion with the appropriate SBA official.</P>
              <P>(b) The Office of Small Business Programs and the SBA should be notified at least 45 days before initiating final action to terminate an 8(a) contract.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 2920-2921 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 2922</EAR>
          <HD SOURCE="HED">PART 2922—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2922.1—Basic Labor Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2922.101-3</SECTNO>
              <SUBJECT>Reporting labor disputes.</SUBJECT>
              <SECTNO>2922.101-4</SECTNO>
              <SUBJECT>Removal of items from contractor's facilities affected by work stoppages.</SUBJECT>
              <SECTNO>2922.103-4</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2922.8—Equal Employment Opportunity</HD>
              <SECTNO>2922.802</SECTNO>
              <SUBJECT>General.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2922.1—Basic Labor Policies</HD>
            <SECTION>
              <SECTNO>2922.101-3</SECTNO>
              <SUBJECT>Reporting labor disputes.</SUBJECT>
              <P>Potential or actual labor disputes that may interfere with contract performance must be reported by the contracting activity to the Office of the Solicitor for legal advice or assistance. It may also become necessary to seek advice or assistance from the National Office of the Federal Mediation and Conciliation Service, 2100 K Street, NW., Washington, DC 20006, or other mediation agencies.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2922.101-4</SECTNO>
              <SUBJECT>Removal of items from contractor facilities affected by work stoppages.</SUBJECT>
              <P>Before initiating any action under FAR 22.101-4 for removal of items from contractors' facilities, the contracting officer must obtain legal advice from the Office of the Solicitor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2922.103-4</SECTNO>
              <SUBJECT>Approvals.</SUBJECT>
              <P>The “agency approving official” as identified in FAR 22.103-4(a) and (b) is a manager, supervisor, or executive responsible for the contracting officer's technical representative (see 2901.603-71).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="34"/>
            <HD SOURCE="HED">Subpart 2922.8—Equal Employment Opportunity</HD>
            <SECTION>
              <SECTNO>2922.802</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Executive Order 11246, as amended, sets forth the Equal Opportunity clause and requires that the Secretary of Labor promote full realization of equal opportunity for all persons regardless of race, color, religion, sex, or national origin. No DOL contracting officer may contract for supplies or services in a manner to avoid applicability of the requirements of E.O. 11246.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2923</EAR>
          <HD SOURCE="HED">PART 2923 ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2923.2—Energy And Water Efficiency and Renewable Energy.</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2923.271</SECTNO>
              <SUBJECT>Purchase and use of environmentally sound and energy efficient products and services.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c); 42 U.S.C. 8262(g).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2923.2—Energy And Water Efficiency and Renewable Energy</HD>
            <SECTION>
              <SECTNO>2923.271</SECTNO>
              <SUBJECT>Purchase and use of environmentally sound and energy efficient products and services.</SUBJECT>
              <P>The Department will implement policies and procedures that comply with the intent and specific goals mandated by the following statutes and executive orders and any other issuances as may be mandated to maximize cost efficient energy management:</P>

              <P>(a) The GSA Federal Supply Schedule Products Guide identifies the recycled and recycled-content items available in the GSA FSS supply system. Copies of the guide may be obtained, without cost, from the GSA, Centralized Mailing List Service, P.O. Box 6477, Fort Worth, Texas, 76115, or by calling (817) 334-5215. <E T="03">See also</E> GSA Advantage! at: <E T="03">www.gsaadvantage.gov.</E>
              </P>
              <P>(b) Executive Order 13123, <E T="03">Greening the Government Through Efficient Energy Management,</E> dated June 8, 1999, requires agencies to select for procurement those energy consuming goods or products which are the most life cycle cost-effective (<E T="03">see</E> FAR 7.101). Green purchasing includes the acquisition of recycled content products, environmentally preferable products and services, biobased products, energy- and water-efficient products, alternate fuel vehicles, and products using renewable energy.</P>
              <P>(1) To the extent practicable, each program official must require vendors of goods or products to provide appropriate data that can be used to assess the life cycle cost of each good or product, including building energy system components, lighting systems, office equipment and other energy using equipment.</P>
              <P>(2) In preparing solicitations and evaluating and selecting offers for award, contracting personnel must consider the life cycle cost data along with other relevant evaluation criteria. If life cycle costing is not used, the contract file must be documented to reflect the rationale for not obtaining and evaluating the data.</P>
              <P>(c) Executive Order 13101, <E T="03">Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition,</E> dated September 14, 1998, requires agencies to comply with executive branch policies for the acquisition and use of environmentally preferable products and services and implement cost-effective procurement preference programs favoring the purchase of these products and services.</P>
              <P>(d) Executive Order 13148, <E T="03">Greening the Government Through Leadership in Environmental Management Systems, dated April 21, 2000.</E> This Executive Order assists with developing an environmental management system. The following sources are provided as references for the subject matter indicated:</P>

              <P>(1) The Office of the Federal Environmental Executive provides references to all greening the Government executive orders, web links to other relevant cites, and information on biobased and bioenergy products. <E T="03">http://www.ofee.gov/gp/gp.htm.</E>
                <PRTPAGE P="35"/>
              </P>

              <P>(2) The Comprehensive Procurement Guidelines program is part of the Environmental Protection Agency's continued effort to promote the use of materials recovered from solid waste. This listing provides information on products made from recycled materials, such as the carpeting and insulation used in office buildings, or reams of office paper. <E T="03">www.epa.gov/cpg.</E>
              </P>

              <P>(3) ENERGY STAR is a government-backed program helping businesses and individuals protect the environment through superior energy efficiency. See also <E T="03">http://www.eere.energy.gov/femp/procurement.</E>
                <E T="03">www.energystar.gov.</E>
              </P>

              <P>(4) The Alternative Fuels Data Center is a one-stop shop for agency alternative fuel and vehicle information needs. <E T="03">http://www.afdc.nrel.gov.</E>
              </P>

              <P>(5) The Defense Logistics Agency has created an electronic mall for buying environmentally preferable products. <E T="03">www.emall.dla.mil.</E>
              </P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 2924-2927 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="36"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 2928</EAR>
          <HD SOURCE="HED">PART 2928—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2928.2—Sureties and Other Security for Bonds</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2928.204</SECTNO>
              <SUBJECT>Alternatives in lieu of corporate or individual sureties.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2928.3—Insurance</HD>
              <SECTNO>2928.305</SECTNO>
              <SUBJECT>Overseas workers' compensation and war hazard insurance.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2928.2—Sureties and Other Security for Bonds</HD>
            <SECTION>
              <SECTNO>2928.204</SECTNO>
              <SUBJECT>Alternatives in lieu of corporate or individual sureties.</SUBJECT>

              <P>Upon receipt of any of the types of securities listed in FAR 28.20l or FAR 28.203, the contracting officer must verify the validity of the security and coordinate the retention of the security with the Chief Financial Officer. Contracting officers may obtain access to Department of Treasury Circular 570 through the Internet at <E T="03">http://www.fms.treas.gov/c570/index.html.</E>
              </P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2928.3—Insurance</HD>
            <SECTION>
              <SECTNO>2928.305</SECTNO>
              <SUBJECT>Overseas workers' compensation and war hazard insurance.</SUBJECT>

              <P>The authority of the Agency Head to recommend to the Secretary of Labor waiver of the applicability of the Defense Base Act (42 U.S.C. 1651, <E T="03">et seq.</E>) to any contract, subcontract, work location, or classification of employees, is delegated to the HCA.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2929</EAR>
          <HD SOURCE="HED">PART 2929—TAXES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2929.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2929.101</SECTNO>
              <SUBJECT>Resolving tax problems.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2929.3—State and Local Taxes</HD>
              <SECTNO>2929.303</SECTNO>
              <SUBJECT>Application of state and local taxes to Government contractors and subcontractors.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2929.1—General</HD>
            <SECTION>
              <SECTNO>2929.101</SECTNO>
              <SUBJECT>Resolving tax problems.</SUBJECT>
              <P>Contract tax problems or questions must be referred by the contracting officer to the Office of the Solicitor for resolution.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2929.3—State and Local Taxes</HD>
            <SECTION>
              <SECTNO>2929.303</SECTNO>
              <SUBJECT>Applications of state and local taxes to Government contractors and subcontractors.</SUBJECT>
              <P>(a) Contractors may only be treated as agents of the Government for the purposes set forth in FAR 29.303(a) upon the written review and approval of the Assistant Secretary for Administration and Management.</P>
              <P>(b) Requests for approval under paragraph (a) of this section must be submitted by the HCA through the Office of the Solicitor, to the Division of Acquisition Management Services, for further action.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2930</EAR>
          <HD SOURCE="HED">PART 2930—COST ACCOUNTING STANDARDS ADMINISTRATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2930.2—CAS Program Requirements</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2930.201-5</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2930.2—CAS Program Requirements</HD>
            <SECTION>
              <SECTNO>2930.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>

              <P>(a) The HCA is authorized to waive CAS requirements as provided in FAR 30.201-5.<PRTPAGE P="37"/>
              </P>
              <P>(b) Requests for waivers under paragraph (a) of this subsection must be prepared by the contracting officer as prescribed in FAR 30.201-5(e) and submitted to the HCA.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2931</EAR>
          <HD SOURCE="HED">PART 2931—CONTRACT COST PRINCIPLES AND PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2931.1—Applicability</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2931.101</SECTNO>
              <SUBJECT>Objectives.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2931.1—Applicability</HD>
            <SECTION>
              <SECTNO>2931.101</SECTNO>
              <SUBJECT>Objectives.</SUBJECT>
              <P>Individual and class deviations from cost principles in FAR part 31 must be processed as prescribed in DOLAR subpart 2901.4.</P>
              <CITA>[69 FR 22991, Apr. 27, 2004]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2932</EAR>
          <HD SOURCE="HED">PART 2932—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2932.4—Advance Payments for Non-Commercial Items</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2932.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>2932.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2932.7—Contract Funding.</HD>
              <SECTNO>2932.703</SECTNO>
              <SUBJECT>Contract funding requirements.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2932.4—Advance Payments for Non-Commercial Items</HD>
            <SECTION>
              <SECTNO>2932.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The HCA is authorized to approve determinations and findings as well as contract terms for advance payments. The contracting officer must submit a recommendation for approval or disapproval of the contractor's request to the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2932.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
              <P>The HCA may authorize advance payments without interest pursuant to FAR 32.407.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2932.7—Contract Funding</HD>
            <SECTION>
              <SECTNO>2932.703</SECTNO>
              <SUBJECT>Contract funding requirements.</SUBJECT>
              <P>(a) Except in unusual circumstances, the contracting office may not issue solicitations until an approved procurement request (PR), containing a certification that funds are available, has been received. However, the contracting office may take all necessary actions up to the point of contract obligation before receipt of the PR certifying that funds are available when:</P>
              <P>(1) The Assistant Secretaries, Inspector General, Bureau Chief, Deputy Under Secretary, Solicitor of Labor, Commissioner, or Director of the Women's Bureau certifies that such action is necessary to meet critical program schedules for their program area;</P>
              <P>(2) The Budget Officer certifies that program authority has been issued and funds to cover the acquisition will be available before the date set for receipt of proposals;</P>
              <P>(3) The solicitation includes the clause at FAR 52.232-18, Availability of Funds.</P>
              <P>(b) The contracting office may not open bids/close solicitations until a PR, either planning or final, has been received that contains a certification of fund availability. Only the project or program official with the authority to commit funds from the agency that initiated the PR may make that written certification.</P>
              <P>(c) The project or program office that initiated the PR is responsible for obtaining required certifications.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2933</EAR>
          <HD SOURCE="HED">PART 2933—PROTESTS, DISPUTES, AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2933.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2933.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>2933.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <SECTNO>2933.104</SECTNO>
              <SUBJECT>Protests to GAO.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2933.2—Disputes And Appeals</HD>
              <SECTNO>2933.203</SECTNO>
              <SUBJECT>Applicability.<PRTPAGE P="38"/>
              </SUBJECT>
              <SECTNO>2933.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
              <SECTNO>2933.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <SECTNO>2933.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <SECTNO>2933.213</SECTNO>
              <SUBJECT>Obligation to continue performance.</SUBJECT>
              <SECTNO>2933.270</SECTNO>
              <SUBJECT>Department of Labor Board of Contract Appeals.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c); E.O. 12979, 60 FR 55171, 3 CFR, 1995 Comp., p. 417.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2933.1—Protests</HD>
            <SECTION>
              <SECTNO>2933.102</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The Division of Acquisition Management Services, 200 Constitution Ave., NW., S-1513 B, Washington, DC 20210-0001, telephone (202) 693-7285, facsimile (202) 693-7290 (or the Office acting in that capacity), is responsible for coordinating procurement protests filed with the General Accounting Office.</P>
              <P>(b) The authority of the Assistant Secretary for Administration and Management under FAR 33.102(b) to determine that a solicitation, proposed award, or award does not comply with the requirements of law or regulation may be delegated to the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <P>(a) In accordance with Executive Order 12979, the following procedures apply to agency protests:</P>
              <P>(1) The filing time frames in FAR 33.103(e) apply to agency protests. An agency protest is filed when the protest complaint is received at the location the solicitation designates for serving protests; or if none is designated, when filed with a contracting officer or HCA.</P>
              <P>(2) An interested party filing an agency protest may request either that the contracting officer or the Agency Protest Official decide the protest. The “Agency Protest Official” is an individual above the level of the contracting officer and designated by the Assistant Secretary for Administration and Management, such as the Competition Advocate. The deciding official, whether a contracting officer or Agency Protest Official, must work in consultation with the Office of the Solicitor to resolve the protest.</P>
              <P>(3) In addition to the information required by FAR 33.103(d)(2), the protest must:</P>
              <P>(i) Indicate that it is a protest to the agency;</P>
              <P>(ii) Be contemporaneously filed with the contracting officer;</P>
              <P>(iii) State whether the protestor chooses to have the contracting officer or the Agency Protest Official decide the protest. If the protest is silent on this matter, the contracting officer will decide the protest.</P>
              <P>(b) “Interested Party” means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.</P>
              <P>(c) If the Agency Protest Official is chosen by the protestor to decide the protest, this is an alternative to a decision by the contracting officer, not an appeal. The Agency Protest Official will not consider appeals from a contracting officer's decision on an agency protest.</P>
              <P>(d) The deciding official should consider conducting a scheduling conference with the protestor within five (5) days after the protest is filed. The scheduling conference will establish deadlines for written arguments in support of the agency protest and for agency officials to present information in response to the protest issues. Alternative Dispute Resolution techniques will be considered if determined appropriate by the deciding official.</P>
              <P>(e) Oral conferences may take place either by telephone or in person. Other parties may attend at the discretion of the deciding official.</P>
              <P>(f) Apart from its protest document, the protestor will be given only one opportunity to support or explain in writing the substance of its protest. Department of Labor procedures do not provide for any discovery. The deciding official has discretion to request additional information from either the agency or the protestor. However, the deciding official will normally decide protests on the basis of information provided by the protestor and the agency.</P>

              <P>(g) The preferred practice is to resolve protests through informal oral discussion.<PRTPAGE P="39"/>
              </P>
              <P>(h) An interested party may represent itself or be represented by legal counsel. The Department of Labor will not reimburse the protester for any legal fees or costs related to the agency protest.</P>
              <P>(i) If an agency protest is received before contract award, the contracting officer may only make award if the HCA makes a determination to proceed under FAR 33.103(f)(1). Similarly, if an agency protest is filed within ten (10) days after award, or within five (5) days of the offer of a debriefing required by FAR 15.505 or 15.506, whichever is later, the contracting officer must suspend performance of the contract unless the HCA makes a determination to proceed under FAR 33.103(f)(3). Any stay of award or suspension of performance remains in effect until the protest is decided, dismissed, or withdrawn.</P>
              <P>(j) The deciding official must make a best effort to issue a decision on the protest within twenty (20) days after the filing date. The decision may be oral or written, dependent upon advice of legal counsel.</P>
              <P>(k) The deciding official must send a confirming letter within three (3) days after the decision using a means that provides evidence of receipt. The confirming letter must include the following information:</P>
              <P>(1) State whether the protest was denied, sustained or dismissed.</P>
              <P>(2) Indicate the date the decision was provided.</P>
              <P>(3) If the deciding official sustains the protest, relief may consist of any of the following:</P>
              <P>(i) Recommendation that the contract be terminated for convenience or cause, or that the solicitation be canceled.</P>
              <P>(ii) Recompeting the requirement from the beginning of the solicitation or from the last round of negotiations.</P>
              <P>(iii) Amending the solicitation.</P>
              <P>(iv) Refraining from exercising contract options.</P>
              <P>(v) Awarding a contract consistent with statute, regulation, and the terms of the solicitation.</P>
              <P>(vi) Other action that the deciding official determines is appropriate.</P>
              <P>(l) If the deciding official sustains a protest, then within 30 days after receiving the official's recommendations for relief, the contracting officer must either:</P>
              <P>(1) Fully implement the recommended relief; or</P>
              <P>(2) Notify the deciding official, if the contracting officer was not the deciding official, in writing, if any recommendations have not been implemented and explain why.</P>
              <P>(m) If the protest is denied, and contract performance has been suspended under paragraph (i) of this section, the contracting officer will not lift such suspension until five (5) days after the protest decision has been issued, to allow the protester to file a protest with the General Accounting Office, unless the HCA makes a new finding under FAR 33.103(f)(3). The contracting officer shall consider allowing such suspension to remain in effect pending the resolution of any GAO proceeding.</P>
              <P>(n) Proceedings on an agency protest may be dismissed or stayed if a protest on the same or similar basis is filed with a protest forum outside of the Department of Labor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.104</SECTNO>
              <SUBJECT>Protests to GAO.</SUBJECT>
              <P>(a) <E T="03">General procedures.</E> The HCA has the responsibility to prepare and provide to the General Accounting Office (GAO) the agency report with the information required by FAR 33.104(a). The agency report must be coordinated with the Office of the Solicitor before the report is signed and sent to the GAO.</P>
              <P>(b) <E T="03">Protests before award.</E> The authority of the HCA under FAR 33.104(b) to authorize a contract award when the agency has received notice from the GAO of a protest filed directly with the GAO is nondelegable. The HCA has the responsibility to prepare and provide to the GAO the written finding with the information required by FAR 33.104(b)(1). The written finding must be coordinated with Office of the Solicitor before the HCA affirms its approval by signing the written finding and sending it to the GAO. Copies of the signed written finding and the signed written notice to the GAO must be provided to the Senior Procurement Executive within two (2) working days after they are sent to the GAO.<PRTPAGE P="40"/>
              </P>
              <P>(c) <E T="03">Protests after award.</E> The authority of the HCA under FAR 33.104(c) to authorize contract performance when the agency has received notice from the GAO of a protest filed directly with the GAO is nondelegable. The HCA has the responsibility to prepare and provide to the GAO the written finding with the information required by FAR 33.104(c)(2). The written finding must be coordinated with the Office of the Solicitor before the notice is signed by the HCA and sent to the GAO.</P>
              <P>(d) <E T="03">Notice to the GAO.</E> The authority of the HCA under FAR 33.104(g), to report to the GAO the failure to fully implement the GAO recommendations with respect to a solicitation for a contract or an award or a proposed award of a contract within 60 days of receiving the GAO recommendations, is nondelegable. The written notice must be coordinated with the Office of the Solicitor before the notice is signed by the HCA and sent to the GAO. A copy of all notices to the GAO submitted in accordance with FAR 33.104(g) must be provided to the Senior Procurement Executive within (two) working days after they are sent to the GAO.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2933.2—Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>2933.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>The authority of the Agency Head to determine that the application of the Contract Disputes Act of 1978 to any contract with a foreign government or agency of that government, or an international organization or a subsidiary body of that organization, would not be in the public interest is delegated to the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.209</SECTNO>
              <SUBJECT>Suspected fraudulent claims.</SUBJECT>
              <P>The contracting officer must refer all matters relating to suspected fraudulent claims by a contractor under the conditions in FAR 33.209 to the Office of the Inspector General for further action or investigation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <P>The written decision required by FAR 33.211(a)(4) must include, in the paragraph listed under FAR 33.211(a)(4)(v), specific reference to the Department of Labor Board of Contract Appeals (LBCA), 800 K Street, NW, Suite 400 North, Washington, DC 20001-8002.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <P>(a) When a notice of appeal has been received, the contracting officer must endorse on the appeal the date of mailing (or the date of receipt if the notice was not mailed). The contracting officer must also notify the Solicitor of Labor of the appeal.</P>
              <P>(b) The contracting officer should prepare and transmit the administrative file for the Office of the Solicitor and assist with the appeal.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.213</SECTNO>
              <SUBJECT>Obligation to continue performance.</SUBJECT>
              <P>The contracting officer must include the clause at FAR 52.233-1, Disputes (Alternate I), in contracts where continued performance is necessary pending resolution of any claim arising under or relating to the contract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2933.270</SECTNO>
              <SUBJECT>Department of Labor Board of Contract Appeals.</SUBJECT>
              <P>(a) The Department of Labor Board of Contract Appeals (LBCA) is authorized by the Secretary to consider and determine appeals from decisions of contracting officers arising under a contract, or relating to a contract, made by the Department or any other executive agency when such agency or the Administrator of the Office of Federal Procurement Policy has designated the LBCA to decide the appeal.</P>
              <P>(b) The LBCA rules of procedure are contained in 41 CFR part 29-60.104, appearing in the July 1, 1983, edition of 41 CFR, subtitle A, chapters 19-100.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 2934-2935 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 2936</EAR>
          <HD SOURCE="HED">PART 2936—CONSTRUCTION AND ARCHITECT—ENGINEER CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2936.2—Special Aspects of Contracting for Construction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2936.201</SECTNO>
              <SUBJECT>Evaluation of contractor performance.</SUBJECT>
              <SECTNO>2936.209</SECTNO>
              <SUBJECT>Construction contracts with architect-engineer firms.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="41"/>
              <HD SOURCE="HED">Subpart 2936.5—Contract Clauses</HD>
              <SECTNO>2936.516</SECTNO>
              <SUBJECT>Quality surveys.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2936.6—Architect-Engineer Services</HD>
              <SECTNO>2936.602</SECTNO>
              <SUBJECT>Selection of firms for architect-engineer contracts.</SUBJECT>
              <SECTNO>2936.602-1</SECTNO>
              <SUBJECT>Selection criteria.</SUBJECT>
              <SECTNO>2936.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <SECTNO>2936.602-3</SECTNO>
              <SUBJECT>Evaluation board functions.</SUBJECT>
              <SECTNO>2936.602-4</SECTNO>
              <SUBJECT>Selection Authority.</SUBJECT>
              <SECTNO>2936.602-5</SECTNO>
              <SUBJECT>Short selection processes for contracts not to exceed $100,000.</SUBJECT>
              <SECTNO>2936.603</SECTNO>
              <SUBJECT>Collecting data on and appraising firms' qualifications.</SUBJECT>
              <SECTNO>2936.604</SECTNO>
              <SUBJECT>Performance evaluation.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2936.2—Special Aspects of Contracting for Construction</HD>
            <SECTION>
              <SECTNO>2936.201</SECTNO>
              <SUBJECT>Evaluation of contractor performance.</SUBJECT>
              <P>The HCA must establish procedures to evaluate construction contractor performance and prepare performance reports as required by FAR 36.201.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2936.209</SECTNO>
              <SUBJECT>Construction contracts with architect-engineer firms.</SUBJECT>
              <P>As required by FAR 36.209, no contract for construction of a project may be awarded to the firm that designed the project, or to its subsidiaries or affiliates, without the written approval of the Assistant Secretary for Administration and Management. Any request for approval must include the reason(s) why award to the design firm is required; an analysis of the facts involving potential or actual organizational conflicts of interest including benefits and detriments to the Government and the prospective contractor; and the measures which are to be taken to avoid, neutralize, or mitigate conflicts of interest.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2936.5—Contract Clauses</HD>
            <SECTION>
              <SECTNO>2936.516</SECTNO>
              <SUBJECT>Quality surveys.</SUBJECT>
              <P>The HCA is authorized to make the determination regarding the impracticability of Government performance of original and final surveys as prescribed in FAR 36.516.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2936.6—Architect-Engineer Services</HD>
            <SECTION>
              <SECTNO>2936.602</SECTNO>
              <SUBJECT>Selection of firms for architect-engineer contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2936.602-1</SECTNO>
              <SUBJECT>Selection criteria.</SUBJECT>
              <P>HCAs are authorized to approve the use of design competition under the conditions in FAR 36.602-1(b).</P>
            </SECTION>
            <SECTION>
              <SECTNO>2936.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <P>HCAs must establish procedures to provide permanent or ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-2. Procedures must provide for the appointment of private practitioners of architecture, engineering, or related professions when such action is determined in writing by the HCA to be essential to meeting the Government's minimum needs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2936.602-3</SECTNO>
              <SUBJECT>Evaluation board functions.</SUBJECT>
              <P>The selection report required in FAR 36.602-3(d) must be prepared for the approval of the HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2936.602-4</SECTNO>
              <SUBJECT>Selection Authority.</SUBJECT>
              <P>The HCA is authorized to serve as the designated Selection Authority in accordance with FAR 36.602-1.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2936.602-5</SECTNO>
              <SUBJECT>Short selection processes for contracts not to exceed $100,000.</SUBJECT>
              <P>The selection process prescribed in FAR 36.602-5(b) must be used for architect-engineer contracts not exceeding the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2936.603</SECTNO>
              <SUBJECT>Collecting data on and appraising firms' qualifications.</SUBJECT>
              <P>(a) HCAs who acquire architect-engineer services must establish procedures to comply with the requirements of FAR 36.603.</P>
              <P>(b) Copies of procedures established under paragraph (a) of this section must be submitted to the Division of Acquisition Management Services, for review and recommendation for approval to the HCA when updated. These procedures must include a list of names, addresses, and telephone numbers of offices or boards assigned to maintain architect-engineer qualification data files.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="42"/>
              <SECTNO>2936.604</SECTNO>
              <SUBJECT>Performance evaluation.</SUBJECT>
              <P>(a) The HCA must establish procedures to evaluate architect-engineer contractor performance as required in FAR 36.604. Normally, the performance report must be prepared by the contracting officer's authorized representative or other official who was responsible for monitoring contract performance and who is qualified to evaluate overall performance. DOL Agency/Office procedures must prescribe instructions for review of the report, before distribution, as prescribed in FAR 36.604(b).</P>
              <P>(b) Performance reports must be made using Standard Form 1421, Performance Evaluation (Architect-Engineer) as prescribed in FAR 36.702(c). Details covering unsatisfactory performance, including Government notification to the contractor and written comments by the contractor, must also be attached to the report.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2937</EAR>
          <HD SOURCE="HED">PART 2937—SERVICE CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2937.1—Service Contracts-General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2937.103</SECTNO>
              <SUBJECT>Contracting officer responsibility.</SUBJECT>
              <SECTNO>2937.103-70</SECTNO>
              <SUBJECT>Department of Labor checklist to aid analysis and review of requirements for service contracts.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2937.2—Advisory and Assistance Services</HD>
              <SECTNO>2937.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2937.6—Preference for Performance-Based Contracting (PBC)</HD>
              <SECTNO>2937.602</SECTNO>
              <SUBJECT>Elements of performance-based contracting.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2937.1—Service Contracts-General</HD>
            <SECTION>
              <SECTNO>2937.103</SECTNO>
              <SUBJECT>Contracting officer responsibility.</SUBJECT>
              <P>The HCA is responsible for establishing internal review and approval procedures for service contracts in accordance with OFPP Policy Letter 93-1 (Reissued), “Management Oversight of Service Contracting”. As defined by FAR 37.101, contracts for personal services are permitted under the circumstances in 5 U.S.C. 3109.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2937.103-70</SECTNO>
              <SUBJECT>Department of Labor checklist to aid analysis and review of requirements for service contracts.</SUBJECT>
              <P>Contracting specialists and contracting officers must work in close collaboration with the beneficiaries of the services being purchased to ensure that contractor performance meets contract requirements and performance standards.</P>
              <P>(a) <E T="03">General.</E> Following is a checklist to aid analysis and review of requirements for service contracts.</P>
              <P>(1) Is the statement of work complete, with a clear-cut division of responsibility between the contracting parties?</P>
              <P>(2) Is the statement of work discussed in terms the market can satisfy?</P>
              <P>(3) Does the statement of work encompass all commercially available services that can meet the actual functional need (eliminates any nonessential preferences that may thwart full and open competition)?</P>

              <P>(4) Is the statement of work performance-based to the maximum extent possible (<E T="03">i.e.,</E> is the acquisition structured around the purpose of the work to be performed, as opposed to either the manner by which the work is to be performed or a broad and imprecise statement of work)?</P>
              <P>(b) <E T="03">Cost effectiveness.</E> If the response to any of the following questions is negative, the agency may not have a valid requirement or not be obtaining the requirement in the most cost effective manner.</P>
              <P>(1) Is the statement of work written so that it supports the need for a specific service?</P>
              <P>(2) Is the statement of work written so that it permits adequate evaluation of contractor versus in-house cost and performance?</P>

              <P>(3) Are the choices of contract type, quality assurance plan, competition strategy, or other related acquisition strategies and procedures in the acquisition plan appropriate to ensure good <PRTPAGE P="43"/>contractor performance to meet the user's needs?</P>
              <P>(4) If a cost reimbursement contract is contemplated, is the acquisition plan adequate to ensure that the contractor will have the incentive to control costs under the contract?</P>
              <P>(5) Is the acquisition plan adequate to address the cost effectiveness of using contractor support (either long-term or short-term) versus in-house performance?</P>
              <P>(6) Is the cost estimate or other supporting cost information adequate to enable the contracting office to effectively determine whether costs are reasonable?</P>
              <P>(7) Is the statement of work adequate to describe the requirement in terms of “what” is to be performed as opposed to “how” the work is to be accomplished?</P>
              <P>(8) Is the acquisition plan adequate to ensure that there is proper consideration given to “quality” and “best value?”</P>
              <P>(c) <E T="03">Control.</E> If the response to any of the following questions is negative, there may be a control problem.</P>
              <P>(1) Are there sufficient resources to evaluate contractor performance when the statement of work requires the contractor to provide advice, analysis and evaluation, opinions, alternatives, or recommendations that could significantly influence agency policy development or decision-making?</P>
              <P>(2) Does the quality assurance plan provide for adequate monitoring of contractor performance?</P>
              <P>(3) Is the statement of work written so that it specifies a contract deliverable or requires progress reporting on contractor performance?</P>
              <P>(4) Is agency expertise adequate to independently evaluate the contractor's approach, methodology, results, options, conclusions or recommendations?</P>
              <P>(d) <E T="03">Conflicts of interest.</E> If the response to any of the following questions is affirmative, there may be a conflict of interest.</P>
              <P>(1) Can the potential offeror perform under the contract to devise solutions or make recommendations that would influence the award of future contracts to that contractor?</P>
              <P>(2) If the requirement is for support services (such as system engineering or technical direction), were any of the potential offerors involved in developing the system design specifications or in the production of the system?</P>
              <P>(3) Has a potential offeror participated in earlier work involving the same program or activity that is the subject of the present contract, wherein the offeror had access to source selection or proprietary information not available to other offerors competing for the contract?</P>
              <P>(4) Will the contractor be evaluating a competitor's work?</P>
              <P>(5) Does the contract allow the contractor to accept its own products or activities on behalf of the Government?</P>

              <P>(6) Will the work under this contract put the contractor in a position to influence government decision-making, <E T="03">e.g.,</E> developing regulations that will affect the contractor's current or future business?</P>
              <P>(7) Will the work under this contract affect the interests of the contractor's other clients?</P>
              <P>(8) Are any of the potential offerors, or their personnel who will perform the contract, former agency officials who—while employed by the agency—personally and substantially participated in the development of the requirement for, or the procurement of, these services within the past two years?</P>
              <P>(e) <E T="03">Competition.</E> If the response to any of the following questions is negative, competition may be unnecessarily limited.</P>
              <P>(1) Is the statement of work defined so as to avoid overly restrictive specifications or performance standards?</P>
              <P>(2) Is the contract formulated in such a way as to avoid creating a continuous and dependent arrangement with the same contractor?</P>
              <P>(3) Is the use of an indefinite quantity or term contract arrangement appropriate to obtain the required services?</P>
              <P>(4) Will the requirement be obtained through the use of full and open competition?</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="44"/>
            <HD SOURCE="HED">Subpart 2937.2—Advisory and Assistance Services</HD>
            <SECTION>
              <SECTNO>2937.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) HCAs having a requirement for certain advisory and assistance services are required by the Department of Labor Manual Series (<E T="03">See</E> DLMS 2 836) to prepare a written justification for such services. Written justification must be submitted to the Assistant Secretary for Administration and Management for review by the Procurement Review Board, for Assistant Secretary for Administration and Management approval.</P>
              <P>(b) Regardless of the type of action planned, the justification in paragraph (a) of this section must include the following:</P>
              <P>(1) A statement of need, which certifies that the requested services do not unnecessarily duplicate any previously performed work.</P>
              <P>(2) Nature and scope of the need, and the results expected.</P>
              <P>(3) Extent to which in-house staff availability was assessed, and the reasons why procurement of outside services is necessary.</P>
              <P>(4) Any additional information or data that support the requirement for a contract.</P>
              <P>(5) Name(s) and title(s) of official(s) who will be assigned as project officer(s) to work with the contractor, and who can be contacted for additional Information.</P>
              <P>(6) A statement that the Government policy on advisory and assistance services has been reviewed and complies with FAR 37.203.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2937.6—Preference for Performance-Based Contracting (PBC)</HD>
            <SECTION>
              <SECTNO>2937.602</SECTNO>
              <SUBJECT>Elements of performance-based contracting.</SUBJECT>

              <P>(a) Performance-based contracting is defined in FAR 37.101 and discussed in FAR 37.6. Although FAR Part 37 primarily addresses services contracts, PBC is not limited to these contracts. PBC is the preferred way of contracting for services. (<E T="03">See</E> exceptions listed in FAR 37.102.) Generally, when contract performance risk under a PBC specification can be shifted to the contractor to allow for the operation of objective incentives, a contract type with objectively measurable incentives (<E T="03">e.g.,</E> Firm-Fixed-Price, Fixed-Price-Incentive-Fee, or Cost-Plus-Incentive-Fee) is appropriate. However, when contractor performance (<E T="03">e.g.,</E> cost control, schedule, or quality/technical) is best evaluated subjectively using qualitative measures, a Cost-Plus-Award-Fee contract may be used.</P>
              <P>(b) A labor hour level-of-effort contract is not considered a PBC.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 2938-2941 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="45"/>
        <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        <PART>
          <EAR>Pt. 2942</EAR>
          <HD SOURCE="HED">PART 2942—CONTRACT ADMINISTRATION AND AUDIT SERVICES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2942.1—Contract Audit Services</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2942.101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2942.15—Contractor Performance Information</HD>
              <SECTNO>2942.1501</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <SECTNO>2942.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>2942.1503</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <AUTH>
                <HD SOURCE="HED">Authority:</HD>
                <P>5 U.S.C. 301, 40 U.S.C. 486(c).</P>
              </AUTH>
            </SUBPART>
          </CONTENTS>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2942.1—Contract Audit Services</HD>
            <SECTION>
              <SECTNO>2942.101</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>The OASAM Division of Cost Determination is responsible for establishing billing rates and indirect cost rates as prescribed in FAR 42.7 for the Department of Labor.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2942.15—Contractor Performance Information</HD>
            <SECTION>
              <SECTNO>2942.1501</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <P>This subpart provides policies and procedures for evaluating, maintaining, and releasing contractor performance information under DOL contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2942.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>DOL contracting officers are required to use or interface with the Past Performance Information Retrieval System (PPIRS), and specifically the National Institutes of Health's Contractor Performance System. The HCA is responsible for ensuring that a contractor performance evaluation system is generated to meet the requirements of FAR subpart 42.15, including compliance with subcontracting plans. Contracts, task orders, and delivery orders, exceeding the simplified acquisition threshold, should be formally evaluated in writing. Interim evaluations should be performed on contracts exceeding one year in duration. This will assist contractors with improving marginal performance and identifying any major deficiencies. It will also facilitate performance evaluations at contract completion, as well as determining whether to exercise contract options, if any.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2942.1503</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) In accordance with FAR 42.1502, the contracting officer will prepare an interim evaluation of a contractor's performance at least annually for submission to the Past Performance Information Retrieval System (PPIRS), and specifically the Contractor Performance System maintained by the National Institutes of Health.</P>
              <P>(b) The contracting officer, or designee, must determine who will evaluate a contractor's performance. The contracting officer's technical representative, program manager, contract specialists or administrators, and users are candidates likely to be selected to perform the evaluation.</P>
              <P>(c) A contractor's performance evaluation should be obtained from a person who monitored contractor performance when that individual's assignment of duties or employment terminates before physical completion of the contract. The areas of performance to be selected for evaluation should be tailored to the type of supplies or services normally acquired by the contracting activities and the type of contract. HCAs must ensure uniformity of the evaluation criteria within their contracting activities.</P>
              <P>(d) Release of contractor performance evaluation information.</P>
              <P>(1) Requests for performance evaluation information from the public must be processed in accordance with FOIA, as implemented by DOL under 29 CFR part 70.</P>

              <P>(2) Release of a contractor's performance evaluation information to other Federal agencies is subject to FAR 42.1502. When the performance evaluation information is released to other federal agencies, it should be provided with a written statement that it is nonpublic information that must be <PRTPAGE P="46"/>processed under FOIA principles if a request for its disclosure is received.</P>

              <P>(e) Even though the retention period for past performance evaluation information is three years (<E T="03">see</E> FAR 42.1503), the contractor's performance evaluation, any contractor rebuttal, and final decision become a part of the contract file. Therefore, disposal of the contractor's evaluation information must be accomplished in accordance with FAR 4.804.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2943</EAR>
          <HD SOURCE="HED">PART 2943—CONTRACT MODIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2943.2—Change Orders</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2943.205</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2943.3—Forms</HD>
              <SECTNO>2943.301</SECTNO>
              <SUBJECT>Use of forms.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2943.2—Change Orders</HD>
            <SECTION>
              <SECTNO>2943.205</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>HCAs may establish procedures, or office policies, when appropriate for authorizing the contracting officer to vary the 30-day period for submission of adjustment proposals to the clauses prescribed by FAR 43.205.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2943.3—Forms</HD>
            <SECTION>
              <SECTNO>2943.301</SECTNO>
              <SUBJECT>Use of forms.</SUBJECT>
              <P>(a) FAR 43.301(a)(1)(vi) requires the use of Standard Form 30 (SF-30) to execute any obligation or deobligation of contract funds after award. FAR 13.307(c)(3) allows, and the Department of Labor prefers, the use of the SF-30 for simplified acquisitions. The SF-30 also must be used to deobligate funds when effecting contract closeout when obligated funds exceed the final contract costs. In such an instance, the SF-30 may be issued as an administrative modification on a unilateral basis if the contractor's financial release has been separately obtained.</P>
              <P>(b) The contracting officer must include, in any unilateral contract modification issued for contract closeout, a statement that the contractor has signed a release of claims and indicate the date the release of claims was signed by the contractor.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2944</EAR>
          <HD SOURCE="HED">PART 2944—SUBCONTRACTING POLICIES AND PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2944.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2944.101</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2944.2—Consent To Subcontract</HD>
              <SECTNO>2944.201-1</SECTNO>
              <SUBJECT>Consent requirements.</SUBJECT>
              <SECTNO>2944.202</SECTNO>
              <SUBJECT>Contracting officer's evaluation.</SUBJECT>
              <SECTNO>2944.202-2</SECTNO>
              <SUBJECT>Considerations.</SUBJECT>
              <SECTNO>2944.203</SECTNO>
              <SUBJECT>Consent limitations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2944.3—Contractors' Purchasing Systems Reviews</HD>
              <SECTNO>2944.302</SECTNO>
              <SUBJECT>Requirements.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2944.1—General.</HD>
            <SECTION>
              <SECTNO>2944.101</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>The waiver of consent must be in writing, signed by the contracting officer, and included in the contract file. The waiver must include all supporting facts, including the rationale for waiving the consent to subcontract requirements.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2944.2—Consent To Subcontract</HD>
            <SECTION>
              <SECTNO>2944.201-1</SECTNO>
              <SUBJECT>Consent requirements.</SUBJECT>
              <P>In accordance with FAR 44.201-1(b) or FAR 44.201-2, advance notification and agreement are required for all cost-reimbursement, time-and-materials, or labor-hour subcontracts exceeding the simplified acquisition threshold.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2944.202</SECTNO>
              <SUBJECT>Contracting officer's evaluation.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>2944.202-2</SECTNO>
              <SUBJECT>Considerations.</SUBJECT>
              <P>The review required by FAR 44.202-2(a) must be documented in writing (including supporting facts and rationale), signed by the contracting officer, and included in the contract file.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="47"/>
              <SECTNO>2944.203</SECTNO>
              <SUBJECT>Consent limitations.</SUBJECT>
              <P>Any limitations placed on the consent to subcontract must be documented in writing (including supporting facts and rationale), signed by the contracting officer, and included in the contract file.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2944.3—Contractors' Purchasing Systems Reviews</HD>
            <SECTION>
              <SECTNO>2944.302</SECTNO>
              <SUBJECT>Requirements.</SUBJECT>
              <P>The authority of the Assistant Secretary for Administration and Management under FAR 44.302(a), to raise or lower the $25 million review level for a contractor's purchasing system, may not be delegated. When a contractor's purchasing system review is required by the contracting officer, the effort must be coordinated with the OASAM Business Operations Center's Division of Acquisition Management Services and the Division of Cost Determination.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2945</EAR>
          <HD SOURCE="HED">PART 2945—GOVERNMENT PROPERTY</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2945.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2945.104</SECTNO>
              <SUBJECT>Review and correction of contractors' property control systems.</SUBJECT>
              <SECTNO>2945.105</SECTNO>
              <SUBJECT>Records of Government property.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2945.3—Providing Government Property to Contractors</HD>
              <SECTNO>2945.302</SECTNO>
              <SUBJECT>Providing facilities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2945.4—Contractor Use and Rental of Government Property</HD>
              <SECTNO>2945.403</SECTNO>
              <SUBJECT>Rental-use and charges 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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2945.1—General</HD>
            <SECTION>
              <SECTNO>2945.104</SECTNO>
              <SUBJECT>Review and correction of contractors' property control systems.</SUBJECT>
              <P>When the Government's property administrator determines that review and approval of the contractor's property control system rests with DOL, the Government's property administrator must review the system to determine whether the contractor will be able to meet the requirements of FAR 45.104. The review must be completed, signed by the appointed property administrator, and retained in the contract file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>2945.105</SECTNO>
              <SUBJECT>Records of Government property.</SUBJECT>
              <P>Contracting officers must maintain a file on any Government-furnished property (GFP) in the possession of contractors. As a minimum, the file must contain the following:</P>
              <P>(a) A copy of the applicable portions of the contract that list the GFP;</P>
              <P>(b) Contracting officer's letters assigning the GFP administrator to the contract;</P>
              <P>(c) Written evidence that the contractor's property control system was reviewed and approved as required by FAR 45.104;</P>
              <P>(d) If applicable, documentation of the request and approval or denial of the contractor's requests to acquire or fabricate special test equipment in accordance with FAR 45.307 or other property;</P>
              <P>(e) The contractor's written notice of receipt of the GFP and any reported discrepancies thereto, as required by FAR 45.502-1 and 45.502-2, respectively;</P>
              <P>(f) Any other documents pertaining to or affecting the status of the GFP in the possession of contractors or subcontractors under the contract;</P>
              <P>(g) Documentation of the screening and disposal of all GFP as required by FAR 45.6.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2945.3—Providing Government Property to Contractors</HD>
            <SECTION>
              <SECTNO>2945.302</SECTNO>
              <SUBJECT>Providing facilities.</SUBJECT>
              <P>The HCA is authorized to make the determination to provide facilities to a contractor as prescribed in FAR 45.302-1(a)(4).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="48"/>
            <HD SOURCE="HED">Subpart 2945.4—Contractor Use and Rental of Government Property</HD>
            <SECTION>
              <SECTNO>2945.403</SECTNO>
              <SUBJECT>Rental-use and charges clause.</SUBJECT>
              <P>The HCA must make the determination to charge rent on the basis of use under the clause at FAR 52.245-9 when the contracting officer provides access to Government production and research property, as prescribed in FAR 45.403(a).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PARTS 2946-2951 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="49"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSE AND FORMS</HD>
        <PART>
          <EAR>Pt. 2952</EAR>
          <HD SOURCE="HED">PART 2952—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 52.2—Text of Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2952.201-70</SECTNO>
              <SUBJECT>Contracting Officer's Technical Representative (COTR).</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 52.2—Text of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>2952.201-70</SECTNO>
              <SUBJECT>Contracting Officer's Technical Representative (COTR).</SUBJECT>

              <P>Insert the following clause into contracts requiring COTR representation under 2901.603.71:
              </P>
              <EXTRACT>
                <P>
                  <E T="03">Contracting officer's technical representative (COTR)</E> May 2004</P>
                <P>(a) Mr./Ms. (Name) of (Organization) (Room No.), (Building), (Address), (Area Code &amp; Telephone No.), is hereby designated to act as contracting officer's technical representative (COTR) under this contract.</P>
                <P>(b) The COTR is responsible, as applicable, for: receiving all deliverables; inspecting and accepting the supplies or services provided hereunder in accordance with the terms and conditions of this contract; providing direction to the contractor which clarifies the contract effort, fills in details or otherwise serves to accomplish the contractual scope of work; evaluating performance; and certifying all invoices/vouchers for acceptance of the supplies or services furnished for payment.</P>
                <P>(c) The COTR does not have the authority to alter the contractor's obligations under the contract, and/or modify any of the expressed terms, conditions, specifications, or cost of the agreement. If, as a result of technical discussions, it is desirable to alter/change contractual obligations or the scope of work, the contracting officer must issue such changes.</P>
              </EXTRACT>
              
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2953</EAR>
          <HD SOURCE="HED">PART 2953—FORMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 2953.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>2953.100</SECTNO>
              <SUBJECT>Request for Recommendation by Procurement Review Board DL 1-490.</SUBJECT>
              <SECTNO>2953.101</SECTNO>
              <SUBJECT>Simplified Acquisition Documentation Checklist DL 1-2216.</SUBJECT>
              <SECTNO>2953.102</SECTNO>
              <SUBJECT>Quotation for Simplified Acquisitions DL 1-2078.</SUBJECT>
              <SECTNO>2953.103</SECTNO>
              <SUBJECT>Acquisition Screening and Review—over $100,000 DL 1-2004.</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>69 FR 22991, Apr. 27, 2004, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 2953.1—General</HD>
            <SECTION>
              <SECTNO>2953.100</SECTNO>
              <SUBJECT>Request for Recommendation by Procurement Review Board DL 1-490.</SUBJECT>
              <P>The following form must be used by the requisitioning office to submit a request for review by the Procurement Review Board as specified in DOLAR 2901 and 2943. This form must be submitted through the Assistant Secretary for the program office to the Director, Division of Acquisition Management Services, for scheduling before the Procurement Review Board.</P>
              <GPH DEEP="459" SPAN="2">
                <PRTPAGE P="50"/>
                <GID>ER27AP04.000</GID>
              </GPH>
              <GPH DEEP="454" SPAN="2">
                <PRTPAGE P="51"/>
                <GID>ER27AP04.001</GID>
              </GPH>
              <GPH DEEP="470" SPAN="2">
                <PRTPAGE P="52"/>
                <GID>ER27AP04.002</GID>
              </GPH>
              <GPH DEEP="470" SPAN="2">
                <PRTPAGE P="53"/>
                <GID>ER27AP04.003</GID>
              </GPH>
            </SECTION>
            <SECTION>
              <PRTPAGE P="54"/>
              <SECTNO>2953.101</SECTNO>
              <SUBJECT>Simplified Acquisition Documentation Checklist DL 1-2216.</SUBJECT>
              <P>The following checklist must be used to document all simplified acquisitions at or below the simplified acquisition threshold.</P>
              <GPH DEEP="470" SPAN="2">
                <PRTPAGE P="55"/>
                <GID>ER27AP04.004</GID>
              </GPH>
            </SECTION>
            <SECTION>
              <PRTPAGE P="56"/>
              <SECTNO>2953.102</SECTNO>
              <SUBJECT>Quotation for Simplified Acquisitions DL 1-2078.</SUBJECT>
              <P>The following form must be used to document all simplified acquisitions above the micro-purchase threshold and below the simplified acquisition threshold. This form may also be used to document commercial acquisitions on a fixed price basis up to $5 million.</P>
              <GPH DEEP="460" SPAN="2">
                <GID>ER27AP04.005</GID>
              </GPH>
            </SECTION>
            <SECTION>
              <PRTPAGE P="57"/>
              <SECTNO>2953.103</SECTNO>
              <SUBJECT>Acquisition Screening and Review—over $100,000 DL 1-2004.</SUBJECT>

              <P>The requiring organization must complete the following form for all acquisitions above the <E T="03">simplified acquisition threshold.</E> This form will then be submitted through the contracting officer to the Office of Small Business Programs for review.</P>
              <GPH DEEP="448" SPAN="2">
                <GID>ER27AP04.006</GID>
              </GPH>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 30 (10-1-05 Edition)</LRH>
      <RRH>Homeland Security Department</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="59"/>
          <HD SOURCE="HED">CHAPTER 30—DEPARTMENT OF HOMELAND SECURITY, HOMELAND SECURITY ACQUISITION REGULATION (HSAR)</HD>
          <P>(Parts 3000 to 3099)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>3001</PT>
          <SUBJECT>Federal Acquisition Regulations System</SUBJECT>
          <PG>61</PG>
          <PT>3002</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>66</PG>
          <PT>3003</PT>
          <SUBJECT>Improper business practices and personal conflicts Of interest</SUBJECT>
          <PG>67</PG>
          <PT>3004</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>68</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3005</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>71</PG>
          <PT>3006</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>71</PG>
          <PT>3007</PT>
          <RESERVED>Acquisition planning [Reserved]</RESERVED>
          <PT>3008</PT>
          <RESERVED>Required sources of supplies and services [Reserved]</RESERVED>
          <PT>3009</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>72</PG>
          <PT>3010</PT>
          <RESERVED>Market research [Reserved]</RESERVED>
          <PT>3011</PT>
          <SUBJECT>Describing agency needs</SUBJECT>
          <PG>74</PG>
          <PT>3012</PT>
          <RESERVED>Acquisition of commercial items [Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACT METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3013</PT>
          <SUBJECT>Simplified acquisition procedures</SUBJECT>
          <PG>77</PG>
          <PT>3014</PT>
          <RESERVED>Sealed bidding [Reserved]</RESERVED>
          <PT>3015</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>78</PG>
          <PT>3016</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>79</PG>
          <PT>3017</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>80</PG>
          <PT>3018</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3019</PT>
          <SUBJECT>Small business programs</SUBJECT>
          <PG>83</PG>
          <PT>3020-3021</PT>
          <RESERVED>[Reserved]<PRTPAGE P="60"/>
          </RESERVED>
          <PT>3022</PT>
          <SUBJECT>Application of labor laws to government acquisitions</SUBJECT>
          <PG>83</PG>
          <PT>3023</PT>
          <SUBJECT>Environment, conservation, occupational safety, and drug-free workplace</SUBJECT>
          <PG>85</PG>
          <PT>3024</PT>
          <SUBJECT>Protection of privacy and freedom of information</SUBJECT>
          <PG>85</PG>
          <PT>3025</PT>
          <RESERVED>Foreign acquisition [Reserved]</RESERVED>
          <PT>3026</PT>
          <RESERVED>Other socioeconomic programs [Reserved]</RESERVED>
          <PT>3027</PT>
          <SUBJECT>Patents, data and copyrights</SUBJECT>
          <PG>86</PG>
          <PT>3028</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>87</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3029</PT>
          <RESERVED>Taxes [Reserved]</RESERVED>
          <PT>3030</PT>
          <SUBJECT>Cost accounting standards administration</SUBJECT>
          <PG>91</PG>
          <PT>3031</PT>
          <SUBJECT>Contract cost principles and procedures</SUBJECT>
          <PG>91</PG>
          <PT>3032</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>91</PG>
          <PT>3033</PT>
          <SUBJECT>Protests, disputes, and appeals</SUBJECT>
          <PG>92</PG>
          <PT>3034</PT>
          <RESERVED>Major system acquisition [Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3035</PT>
          <SUBJECT>Research and development contracting</SUBJECT>
          <PG>93</PG>
          <PT>3036</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>93</PG>
          <PT>3037</PT>
          <SUBJECT>Service contracting</SUBJECT>
          <PG>93</PG>
          <PT>3038</PT>
          <RESERVED>Federal supply schedule contracting [Reserved]</RESERVED>
          <PT>3039</PT>
          <RESERVED>Acquisition of information technology [Reserved]</RESERVED>
          <PT>3040</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>3041</PT>
          <RESERVED>Acquisition of utility services [Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3042</PT>
          <SUBJECT>Contract administration and audit services</SUBJECT>
          <PG>97</PG>
          <PT>3043</PT>
          <RESERVED>Contract modifications [Reserved]</RESERVED>
          <PT>3044</PT>
          <RESERVED>Subcontracting policies and procedures [Reserved]</RESERVED>
          <PT>3045</PT>
          <SUBJECT>Government property</SUBJECT>
          <PG>97</PG>
          <PT>3046</PT>
          <SUBJECT>Quality assurance</SUBJECT>
          <PG>98</PG>
          <PT>3047</PT>
          <SUBJECT>Transportation</SUBJECT>
          <PG>101</PG>
          <PT>3048</PT>
          <RESERVED>Value engineering [Reserved]</RESERVED>
          <PT>3049</PT>
          <RESERVED>Termination of contracts [Reserved]</RESERVED>
          <PT>3050</PT>
          <RESERVED>Extraordinary contractual actions [Reserved]</RESERVED>
          <PT>3051</PT>
          <RESERVED>Use of government sources by contractors [Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3052</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>103</PG>
          <PT>3053</PT>
          <SUBJECT>Forms</SUBJECT>
          <PG>122</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="61"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 3001</EAR>
          <HD SOURCE="HED">PART 3001—FEDERAL ACQUISITION REGULATIONS SYSTEM</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3001.1—Purpose, Authority, Issuance</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3001.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>3001.102</SECTNO>
              <SUBJECT>Statement of Guiding Principles for the Federal Acquisition System.</SUBJECT>
              <SECTNO>3001.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>3001.105</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
              <SECTNO>3001.105-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <SECTNO>3001.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <SECTNO>3001.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <SECTNO>3001.106</SECTNO>
              <SUBJECT>OMB Approval under the Paperwork Reduction Act.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3001.3—Agency Acquisition Regulations</HD>
              <SECTNO>3001.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>3001.301-70</SECTNO>
              <SUBJECT>Amendment of HSAR.</SUBJECT>
              <SECTNO>3001.301-71</SECTNO>
              <SUBJECT>Effective date.</SUBJECT>
              <SECTNO>3001.301-72</SECTNO>
              <SUBJECT>HSAC or HSAR Notice numbering.</SUBJECT>
              <SECTNO>3001.303</SECTNO>
              <SUBJECT>Publication and codification.</SUBJECT>
              <SECTNO>3001.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3001.4—Deviations from the FAR</HD>
              <SECTNO>3001.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>3001.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3001.6—Career Development, Contracting Authority, and Responsibilities</HD>
              <SECTNO>3001.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3001.602</SECTNO>
              <SUBJECT>Contracting Officers.</SUBJECT>
              <SECTNO>3001.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <SECTNO>3001.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
              <SECTNO>3001.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3001.7—Determinations and Findings</HD>
              <SECTNO>3001.704</SECTNO>
              <SUBJECT>Content.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3001.70—Other Determinations, Waivers, Exceptions, Approvals, Reviews, and Submittals.</HD>
              <SECTNO>3001.7000</SECTNO>
              <SUBJECT>Coordination and approval.</SUBJECT>
              <SECTNO>3001.7001</SECTNO>
              <SUBJECT>Content.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3001.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>3001.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>The Department of Homeland Security Acquisition Regulation (HSAR) establishes uniform acquisition policies and procedures, which implement and supplement the Federal Acquisition Regulation (FAR).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.102</SECTNO>
              <SUBJECT>Statement of Guiding Principles for the Federal Acquisition System.</SUBJECT>
              <P>(d) The FAR and this supplement are to be interpreted permissively, if consistent with statutory and regulatory requirements, policy, and sound professional judgment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.104</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>(a) The following order of precedence applies to resolve any acquisition regulation or procedural inconsistency found within HSAR or the Homeland Security Acquisition Manual (HSAM):</P>
              <P>(1) Statute;</P>
              <P>(2) FAR or other applicable regulation or Executive Order;</P>
              <P>(3) HSAR;</P>
              <P>(4) Department of Homeland Security (DHS) Directives; and</P>
              <P>(5) HSAM.</P>
              <P>(b) The Transportation Security Administration (TSA) exception to this regulation is authorized by the Aviation and Transportation Security Act of 2001 (Section 101(a) of Public Law 107-71). However, see (HSAR) 48 CFR 3033.211, regarding Board of Contract Appeals (BCA).</P>
              <P>(c) For nonappropriated fund contracts, the FAR and HSAR will be followed to the maximum extent feasible excluding provisions determined by counsel not to apply to Nonappropriated Fund institutions (NAFIs). Contracting terms may provide for mutual agreement as to the Board of Contract Appeals jurisdiction but this policy will not confer court jurisdiction concerning NAFIs that does not otherwise exist.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="62"/>
              <SECTNO>3001.105</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3001.105-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <P>(a) The HSAR is published in:</P>
              <P>(1) The <E T="04">Federal Register</E> and</P>
              <P>(2) Cumulated form in the Code of Federal Regulations (CFR).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.105-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>

              <P>(a) General. The HSAR, which encompasses both Department-wide and organizational element-unique guidance, conforms to the arrangement and numbering system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is unique to an organization with Head of the Contracting Activity (HCA) authority contains the organization's acronym directly preceding the cite. The following acronyms apply:
              </P>
              <FP SOURCE="FP-1">Bureau of Customs and Border Protection (CBP)</FP>
              <FP SOURCE="FP-1">Bureau of Immigration and Customs Enforcement (ICE)</FP>
              <FP SOURCE="FP-1">DHS Office of Procurement Operations (OPO)</FP>
              <FP SOURCE="FP-1">Federal Emergency and Management Agency (FEMA) (Includes all elements of the Emergency Preparedness and Response Directorate)</FP>
              <FP SOURCE="FP-1">Federal Law Enforcement Training Center (FLETC)</FP>
              <FP SOURCE="FP-1">Transportation Security Administration (TSA)</FP>
              <FP SOURCE="FP-1">U.S. Coast Guard (USCG)</FP>
              <FP SOURCE="FP-1">U.S. Secret Service (Secret Service)</FP>
            </SECTION>
            <SECTION>
              <SECTNO>3001.105-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <P>The HSAR is available in the <E T="04">Federal Register</E> and electronically at <E T="03">http://www.dhs.gov/dhspublic/.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.106</SECTNO>
              <SUBJECT>OMB Approval under the Paperwork Reduction Act.</SUBJECT>

              <P>(a) The Office of Management and Budget (OMB) has assigned the following control numbers that must appear on the upper right-hand corner of the face page of each solicitation, contract, modification, and order:
              </P>
              <FP SOURCE="FP-1">OMB Control No. 1600-002 (Contract related forms)</FP>
              <FP SOURCE="FP-1">OMB Control No. 1600-005 (Offeror submissions)</FP>
              <FP SOURCE="FP-1">OMB Control No. 1600-003 (Contractor submissions)</FP>
              <FP SOURCE="FP-1">OMB Control No. 1600-004 (Protests)</FP>
              
              <P>(b) OMB regulations and OMB's approval and assignment of control numbers are conditioned upon not requiring more than three copies (including the original) of any document of information. OMB has granted a waiver to permit the Department to require up to eight copies of proposal packages, including proprietary data, for solicitations, provided that contractors who submit only an original and two copies will not be placed at a disadvantage.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3001.3—Agency Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>3001.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a)(1) The HSAR is issued for Departmental guidance according to the policy cited in (FAR) 48 CFR 1.301. The HSAR establishes uniform Homeland Security policies and procedures for all acquisition activities within the Department of the Homeland Security, except the TSA. OE supplemental acquisition regulations to be inserted in the HSAR as a HSAR supplement regulation must be reviewed and approved by the Chief Procurement Officer (CPO) before the CPO submits the proposed coverage for publication in the <E T="04">Federal Register</E> according to (FAR) 48 CFR 1.501.</P>
              <P>(2)(i) The CPO is authorized to issue internal agency guidance at any organizational level. Department-wide procedures are contained in the HSAM. The HCA may implement internal procedures or supplement the FAR, HSAR, or HSAM as provided in HSAM 3001.3. The HCA may issue procedures or delegate this authority to any organizational level deemed appropriate. OE procedures may be more restrictive or require higher approval levels than those permitted by the HSAM, unless otherwise specified.</P>
              <P>(ii) Individuals granted authority in the HSAR may delegate that authority, unless the FAR or HSAR specifically state that the authority is not delegable.</P>

              <P>(b) The Under Secretary of Management established procedures through Management Directive (MD) 0490.1, entitled <E T="03">Federal Register Notice and Rules,</E>
                <PRTPAGE P="63"/>to ensure that agency acquisition regulations are published for comment in the <E T="04">Federal Register</E> in conformance with FAR procedures at (FAR) 48 CFR subpart 1.5.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.301-70</SECTNO>
              <SUBJECT>Amendment of HSAR.</SUBJECT>
              <P>(a) Request for changes to the regulation may be recommended by DHS personnel, other Government agencies, or the public. Change requests are to be submitted in the following format to the Department of Homeland Security, Attn: Office of the Under Secretary of Management, Chief Procurement Officer, Washington, DC 20598.</P>
              <P>(1) <E T="03">Problem:</E> Succinctly state the problem(s) created by current HSAR requirements or processes and describe the factual or legal reasons for requesting a regulatory change.</P>
              <P>(2) <E T="03">Recommendation:</E> Identify the recommended change by using the current language and lining through the words to be deleted and inserting proposed language in brackets. If the change is extensive, deleted language may be displayed by forming a box with diagonal lines connecting the corners.</P>
              <P>(3) <E T="03">Discussion:</E> Explain why the change is necessary and how the change will solve the problem. Address any cost or administrative impact on Government activities, offerors, and contractors. Provide any other helpful information and documents such as statutes, legal decisions, regulations, reports, etc.</P>
              <P>(4) <E T="03">Point of Contact:</E> Provide a point of contact for answering questions regarding the recommendation, along with a telephone number, e-mail or other method of reaching the contact.</P>

              <P>(b) The HSAR is maintained by the CPO through the HSAR/HSAM change process (<E T="03">i.e.,</E> input from various OEs including representatives specifically designated to formulate Departmental acquisition policies and procedures).</P>

              <P>(1) Homeland Security Acquisition Circular (HSAC). HSAC (<E T="03">see</E> (HSAR) 48 Chapter 3001.301-72) will be used to amend (HSAR) 48 Chapter 30.</P>
              <P>(2) HSAR Notices will be issued (with a specified expiration date) when interim guidance is necessary under any of the following circumstances:</P>
              <P>(i) To promulgate, as rapidly as possible, selected material in a general or narrative manner, in advance of a HSAC issuance;</P>
              <P>(ii) To disseminate other acquisition related information; or</P>
              <P>(iii) To issue guidance that is expected to be effective for a period of 1 year or less.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.301-71</SECTNO>
              <SUBJECT>Effective date.</SUBJECT>
              <P>Unless otherwise stated, the following applies—</P>
              <P>(a) Statements in HSACs or HSAR Notices that the content is “upon a specified date,” or that changes in the document are “to be used upon receipt,” mean that any new or revised provisions, clauses, procedures, or forms must be included in solicitations or contracts issued thereafter; and</P>

              <P>(b) Unless expressly directed by statute or regulation, if solicitations have been issued prior to the HSAC or HSAR notice receipt or publication, the new information (<E T="03">e.g.,</E> forms and clauses) need not be included if the Chief of the Contracting Office (COCO) determines, in writing, that including the new information would not be in the best interests of the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.301-72</SECTNO>
              <SUBJECT>HSAC or HSAR Notice numbering.</SUBJECT>

              <P>HSACs and HSAR Notices will be numbered consecutively on a fiscal year basis beginning with number “01” prefixed by the last two digits of the fiscal year (<E T="03">e.g.,</E> HSAR Notices 03-01 and 03-02 indicate the first two HSAR Notices issued in fiscal year 2003).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.303</SECTNO>
              <SUBJECT>Publication and codification.</SUBJECT>
              <P>(a) The HSAR is issued as chapter 30 of Title 48 of the CFR.</P>
              <P>(1) The FAR numbering illustrations at (FAR) 48 CFR 1.105-2 apply to the HSAR.</P>

              <P>(2) Coverage within HSAR 48 CFR chapter 30 is identified by the prefix “30” followed by the complete FAR cite which may extend downward to the subparagraph level (<E T="03">e.g.,</E> (HSAR) 48 CFR 3001.101).</P>

              <P>(3) Coverage in HSAR Chapter 30 that supplements the FAR will use part, subpart, section and subsection numbers ending in “70” through “89”. A series of numbers beginning with “70” is used for provisions and clauses (<E T="03">e.g.,</E> (HSAR) 48 CFR 3001.301-70).<PRTPAGE P="64"/>
              </P>

              <P>(4) Coverage in HSAR 48 CFR chapter 30, other than that identified with a “70” or higher number, which implements the FAR uses the identical number sequence and caption of the FAR segment being implemented which may extend downward to the subparagraph level. Subparagraph numbers/letters may not be shown as sequential, but may be shown by the specific paragraph/subparagraph implemented from the FAR (<E T="03">e.g.,</E> (HSAR) 48 CFR 3003.301 contains subparagraphs (a) and (b) because only these subparagraphs, correlating to FAR, are being supplemented by (HSAR) 48 CFR chapter 30).</P>

              <P>(5) Organizational Element-unique guidance. Supplementary material for which there is no counterpart in the FAR or HSAR shall be identified using chapter, part, subpart, section, or subsection numbers of “90” and up (<E T="03">e.g.,</E> the U.S. Coast Guard's acronym is “USCG”; an USCG-unique clause pertaining to “Inspection and/or Acceptance” would be designated “USCG 3052.246-90”).</P>
              <P>(6) References and citations. Cross references to the FAR in the HSAR will be cited by “FAR” followed by the FAR numbered cite, and cross reference to the HSAM in the HSAR will be cited by “HSAM” followed by the HSAM numbered cite.</P>
              <P>(7) Department/agency and OE supplements must parallel the FAR and HSAR numbering, except department/agency supplemental numbering uses subsection numbering of 90 and up, instead of 70 and up.</P>
              <GPOTABLE CDEF="s100,14.5,12.7" COLS="3" OPTS="L2">
                <TTITLE>Table 1-1.—HSAR Numbering</TTITLE>
                <BOXHD>
                  <CHED H="1">FAR</CHED>
                  <CHED H="1">Is implemented as</CHED>
                  <CHED H="1">Is supplemented as</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">19</ENT>
                  <ENT>3019</ENT>
                  <ENT>3019.70</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">19.5</ENT>
                  <ENT>3019.5</ENT>
                  <ENT>3019.570</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">19.501</ENT>
                  <ENT>3019.501</ENT>
                  <ENT>3019.501-70</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">19.501-1</ENT>
                  <ENT>3019.501-1</ENT>
                  <ENT>3019.501-170</ENT>
                </ROW>
              </GPOTABLE>
            </SECTION>
            <SECTION>
              <SECTNO>3001.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>

              <P>(a) The HSAR is under the direct oversight and control of the Homeland Security, Office of the Chief Procurement Officer (OCPO), which is responsible for evaluation, review, and issuance of all Department-wide acquisition regulations and guidance. Each HCA may supplement the HSAR with OE guidance. Supplementation should be kept to a minimum. OEs proposing to issue regulatory supplements or use solicitation or contract clauses on a repetitive basis must obtain legal review by the OE's legal counsel and forward supplements to the CPO for concurrence prior to publication in the <E T="04">Federal Register</E>.</P>
              <P>(c) The CPO is responsible for evaluating all regulatory coverage in agency acquisition regulations to determine if the substance could apply to other agencies and to make recommendation for inclusion in the FAR.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3001.4—Deviations from the FAR and HSAR</HD>
            <SECTION>
              <SECTNO>3001.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>

              <P>Unless precluded by law, executive order, or other regulation, the HCA is authorized to approve individual deviation (except with respect to (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost Accounting Standards board rules and regulations at 48 CFR chapter 99 (FAR appendix); and part 50). Submit requests per (HSAR) 48 CFR 3001.7000(a), including complete documentation of the justification for the deviation (<E T="03">See</E> HSAM 3001.403).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>

              <P>(a) Unless precluded by law, executive order, or other regulation, the CPO is authorized to approve class deviations (except (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost Accounting Standards board rules and regulations at 48 CFR Chapter 99 (FAR Appendix); and Part 50). Submit requests per (HSAR) 48 CFR 3001.7000(a), including complete documentation of the justification for the deviation, and <PRTPAGE P="65"/>the number and type of contract actions affected. Include a copy of the approved deviation in each contract file. The CPO will transmit a copy of each approved deviation to the FAR Secretariat.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3001.6—Career Development, Contracting Authority, and Responsibilities</HD>
            <SECTION>
              <SECTNO>3001.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>DHS Delegation Number 0200.1, Delegation to the Directorate of Management, delegates authority from the Secretary to the Under Secretary of Management to manage the acquisition function. DHS Delegation 0700, Delegation to the Chief Procurement Officer for Acquisition and Financial Assistance Management, delegates this authority from the Under Secretary of Management to the Chief Procurement Officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.602</SECTNO>
              <SUBJECT>Contracting officers.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3001.602-3</SECTNO>
              <SUBJECT>Ratification of unauthorized commitments.</SUBJECT>
              <P>Department of Homeland Security (DHS) policy requires that acquisitions be made only by Government officials having authority to enter into such acquisitions. Acquisitions made by other than authorized personnel are contrary to Departmental policy and may be considered matters of serious misconduct on the part of an employee making an unauthorized commitment, and may result in disciplinary action being taken against an employee who makes an unauthorized commitment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3001.603-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Under DHS Delegations, the Heads of the Contracting Activity (HCA), with authority to redelegate no lower than the COCO, are authorized to select and appoint contracting officers and terminate their appointment.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3001.7—Determinations and Findings</HD>
            <SECTION>
              <SECTNO>3001.704</SECTNO>
              <SUBJECT>Content.</SUBJECT>
              <P>The following format shall be used for all determinations and findings (D&amp;Fs), unless otherwise specified in the FAR or the HSAR. The contracting officer is responsible for preparing D&amp;Fs, and requirements and technical personnel are responsible for the accuracy and adequacy of the supporting factual information, which shall be furnished to the contracting officer.</P>
              <P>Insert specific information indicated in brackets.</P>
              <EXTRACT>
                <HD SOURCE="HD2">Determination and Findings</HD>
                <P>Under [<E T="03">insert citation for appropriate statutory and/or regulatory basis for D&amp;F</E>], the Department of Homeland Security, [<E T="03">insert contracting activity</E>], is granted authority to [<E T="03">insert nature and/or description of the action being approved</E>].</P>
                <HD SOURCE="HD2">Findings</HD>
                <P>[<E T="03">Findings that detail the particular circumstances, facts, or reasoning essential to support the determination.</E>]</P>
                <HD SOURCE="HD2">Determination</HD>
                <P>[<E T="03">A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation.</E>] [<E T="03">Expiration date of the D&amp;F, if required.</E>]
                </P>
                <FP>[<E T="03">Signature of authorized official</E>]</FP>
                
                <FP>Name and Title</FP>
                
                <FP>[month, day, and year]</FP>
                
                <FP>Date</FP>
              </EXTRACT>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3001.70—Other Determinations, Waivers, Exceptions, Approvals, Reviews, and Submittals</HD>
            <SECTION>
              <SECTNO>3001.7000</SECTNO>
              <SUBJECT>Coordination and approval.</SUBJECT>
              <P>
                <E T="03">Documents requiring CPO approval.</E> Requests shall be prepared in writing by the contracting officer and submitted through the HCA to the CPO for approval.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3001.7001</SECTNO>
              <SUBJECT>Content.</SUBJECT>
              <P>The general format at (HSAR) 48 CFR 3001.704 shall be used to provide a justification to support the requested determination, waiver, exception or approval.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="66"/>
          <EAR>Pt. 3002</EAR>
          <HD SOURCE="HED">PART 3002—DEFINITIONS OF WORDS AND TERMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3002.1—Definitions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3002.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3002.2—Abbreviations</HD>
              <SECTNO>3002.270</SECTNO>
              <SUBJECT>Abbreviations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3002.1—Definitions</HD>
            <SECTION>
              <SECTNO>3002.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Chief Information Officer (CIO)</E> means the Director of the Office of the CIO.</P>
              <P>
                <E T="03">Chief of the Contracting Office (COCO)</E> means the individual(s) responsible for managing the contracting office(s) within an organizational element (OE).</P>
              <P>
                <E T="03">Chief Procurement Officer (CPO)</E> means the Senior Procurement Executive (SPE).</P>
              <P>
                <E T="03">Contracting activity</E> includes all the contracting offices within an OE and is the same as the term “procuring activity.”</P>
              <P>
                <E T="03">Contracting officer</E> means an individual authorized by virtue of position or by appointment to perform the functions assigned by the Federal Acquisition Regulation and the Homeland Security Acquisition Regulation.</P>
              <P>
                <E T="03">Head of Contracting Activity (HCA)</E> means the individual responsible for direct management of the entire acquisition function within an organizational element.</P>
              <P>
                <E T="03">Head of the Agency</E> means the Secretary of the Department of Homeland Security, or, by delegation, the Under Secretary of Management. “Legal counsel” means the Department of Homeland Security Office of General Counsel or OE office providing legal services to the contracting organization.</P>
              <P>
                <E T="03">Legal review</E> means review by legal counsel.</P>
              <P>
                <E T="03">Major system</E> means an acquisition as defined in Management Directive Number 1400, Investment Review Process.</P>
              <P>
                <E T="03">Micro-purchase threshold</E> means $2,500 (see (HSAR) 48 CFR 3013-70), except it means—</P>
              <P>(1) $2,000 for construction subject to the Davis-Bacon Act; and</P>
              <P>(2) $7,500 for acquisitions of supplies or services, except for construction subject to the Davis-Bacon, if the Secretary determines in writing that the mission of the Department (described in Pub. L. 107-296, Sec. 101) would be seriously impaired without the use of such authorities, Act (Pub. L. 107-296, section 833).</P>
              <P>
                <E T="03">Organizational Element (OE)</E> means the following entities for purposes of this chapter:</P>
              <P>(1) Bureau of Customs and Border Protection (CBP);</P>
              <P>(2) Bureau of Immigration and Customs Enforcement (ICE);</P>
              <P>(3) DHS Office of Procurement Operations (OPO);</P>
              <P>(4) Federal Emergency Management Agency (FEMA) (Includes all elements of the Emergency Preparedness and Response Directorate);</P>
              <P>(5) Federal Law Enforcement Training Center (FLETC);</P>
              <P>(6) Transportation Security Administration (TSA); (TSA is exempt from the HSAR and HSAM according to the “Aviation and Transportation Security Act of 2001”);</P>
              <P>(7) U.S. Coast Guard (USCG); and</P>
              <P>(8) U.S. Secret Service (Secret Service).</P>
              <P>
                <E T="03">Senior Procurement Executive (SPE)</E> for the Department of Homeland Security is the Chief Procurement Officer (CPO).</P>
              <P>
                <E T="03">Simplified acquisition threshold</E> means $100,000 (see (HSAR) 48 CFR 3013-70), except that for acquisitions of supplies or services that, if the Secretary determines in writing that the mission of the Department (described in Pub. L. 107-296, section 101) would be seriously impaired without the use of such authorities from November 25, 2002 to December 30, 2007 (Pub. L. 107-296, section 833(c)), the term means—</P>
              <P>(1) $200,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and</P>
              <P>(2) $300,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3002.2—Abbreviations</HD>
            <SECTION>
              <SECTNO>3002.270</SECTNO>
              <SUBJECT>Abbreviations.</SUBJECT>
              
              <EXTRACT>
                <FP SOURCE="FP-2">CFOChief Financial Officer<PRTPAGE P="67"/>
                </FP>
                <FP SOURCE="FP-2">CIOChief Information Officer</FP>
                <FP SOURCE="FP-2">COCOChief of the Contracting Office</FP>
                <FP SOURCE="FP-2">CORContracting Officers Representative</FP>
                <FP SOURCE="FP-2">COTRContracting Officer's Technical Representative</FP>
                <FP SOURCE="FP-2">CPOChief Procurement Officer</FP>
                <FP SOURCE="FP-2">D&amp;FDetermination and Findings</FP>
                <FP SOURCE="FP-2">DOTBCADepartment of Transportation Board of Contract Appeals</FP>
                <FP SOURCE="FP-2">FOIAFreedom of Information Act</FP>
                <FP SOURCE="FP-2">HCAHead of Contracting Activity</FP>
                <FP SOURCE="FP-2">J &amp; AJustification and Approval for Other than Full and Open Competition</FP>
                <FP SOURCE="FP-2">KOContracting officer</FP>
                <FP SOURCE="FP-2">MDManagement Directive</FP>
                <FP SOURCE="FP-2">OCPOOffice of the Chief Procurement Officer</FP>
                <FP SOURCE="FP-2">OEOrganizational Element</FP>
                <FP SOURCE="FP-2">OIGOffice of the Inspector General</FP>
                <FP SOURCE="FP-2">OSDBUOffice of Small and Disadvantaged Business Utilization</FP>
                <FP SOURCE="FP-2">PCRSBA's Procurement Center Representative</FP>
                <FP SOURCE="FP-2">RFPRequest for Proposal</FP>
                <FP SOURCE="FP-2">SBASmall Business Administration</FP>
                <FP SOURCE="FP-2">SBSSmall Business Specialist</FP>
                <FP SOURCE="FP-2">SPESenior Procurement Executive</FP>
              </EXTRACT>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3003</EAR>
          <HD SOURCE="HED">PART 3003—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3003.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3003.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
              <SECTNO>3003.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3003.2—Contractor Gratuities to Government Personnel</HD>
              <SECTNO>3003.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <SECTNO>3003.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3003.3—Reports Of Suspected Antitrust Violations</HD>
              <SECTNO>3003.301</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3003.4—Contingent Fees</HD>
              <SECTNO>3003.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3003.5—Other Improper Business Practices</HD>
              <SECTNO>3003.502</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
              <SECTNO>3003.502-2</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3003.9—Whistleblower Protections for Contractor Employees</HD>
              <SECTNO>3003.901</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3003.1—Safeguards</HD>
            <SECTION>
              <SECTNO>3003.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3003.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <P>(a) Government-wide and Department of Homeland Security regulations governing the conduct and responsibilities of employees are contained in 5 CFR parts 2635 and 3101, and MD 0480, Ethics/Standards of Conduct.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3003.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>3003.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <P>(a) Suspected violations of the Gratuities clause shall be reported to the contracting officer responsible for the acquisition (or the COCO if the contracting officer is suspected of the violation). The contracting officer (or the COCO) shall obtain from the person reporting the violation, and any witnesses to the violation, the following information:</P>
              <P>(1) The date, time, and place of the suspected violation;</P>
              <P>(2) The name and title (if known) of the individual(s) involved in the violation; and</P>
              <P>(3) The details of the violation (<E T="03">e.g.,</E> the gratuity offered or intended) to obtain a contract or favorable treatment under a contract.</P>
              <P>(4) The person reporting the violation and witnesses (if any) shall be requested to sign and date the information certifying that the information furnished is true and correct.</P>
              <P>(b) The contracting officer shall submit the report to the COCO (unless the alleged violation was directly reported to the COCO) and the Head of the Contracting Activity (HCA) for further action. The COCO and HCA will determine, with the advice of OE legal counsel, whether the case warrants submission to the OIG, or other investigatory organization.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3003.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>

              <P>(a) The HCA is the individual to determine whether a Gratuities clause <PRTPAGE P="68"/>violation has occurred. If the HCA has been personally and substantially involved in the specific procurement, the advice of Government legal counsel should be sought to determine whether an alternate decision maker should be designated.</P>
              <P>(b) The COCO shall ensure that the hearing procedures required by (FAR) 48 CFR 3.204(b) are afforded to the contractor. Government legal counsel shall be consulted regarding the appropriateness of the hearing procedures that are established.</P>
              <P>(c) If the HCA determines that the alleged gratuities violation occurred during the “conduct of an agency procurement” the COCO shall consult with Government legal counsel regarding the approach for appropriate processing of either the Procurement Integrity Act violation or the Gratuities violation.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3003.3—Reports Of Suspected Antitrust Violations</HD>
            <SECTION>
              <SECTNO>3003.301</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(b) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for suspected antitrust violations, except reports of suspected antitrust violations shall be coordinated with legal counsel for referral to the Department of Justice, if deemed appropriate.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3003.4—Contingent Fees</HD>
            <SECTION>
              <SECTNO>3003.405</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
              <P>(a) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for misrepresentation or violations of the covenant against contingent fees.</P>
              <P>(b)(4) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for misrepresentation or violations of the covenant against contingent fees, except reports of misrepresentation or violations of the covenant against contingent fees shall be coordinated with legal counsel for referral to the Department of Justice, if deemed appropriate.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3003.5—Other Improper Business Practices</HD>
            <SECTION>
              <SECTNO>3003.502</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3003.502-2</SECTNO>
              <SUBJECT>Subcontractor kickbacks.</SUBJECT>
              <P>(g) The DHS OIG shall receive the prime contractor or subcontractors written report.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3003.9—Whistleblower Protections for Contractor Employees</HD>
            <SECTION>
              <SECTNO>3003.901</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Authorized official of an agency</E> means the Department of Homeland Security's CPO.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3004</EAR>
          <HD SOURCE="HED">PART 3004—ADMINISTRATIVE MATTERS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3004.1—Contract Execution</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3004.103</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3004.4—Contract Clause</HD>
              <SECTNO>3004.470-4</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3004.8—Government Contract Files</HD>
              <SECTNO>3004.804</SECTNO>
              <SUBJECT>Closeout of contract files.</SUBJECT>
              <SECTNO>3004.804-1</SECTNO>
              <SUBJECT>Closeout by the office administering the contract.</SUBJECT>
              <SECTNO>3004.804-5</SECTNO>
              <SUBJECT>Procedures for closing out contract files.</SUBJECT>
              <SECTNO>3004.804-570</SECTNO>
              <SUBJECT>Supporting closeout documents.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3004.1—Contract Execution</HD>
            <SECTION>
              <SECTNO>3004.103</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert the clause at (FAR) 48 CFR 52.204-1, Approval of Contract, in each solicitation where approval to award the resulting contract is required above the contracting officer level.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3004.4—Contract Clause</HD>
            <SECTION>
              <SECTNO>3004.470-4</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>

              <P>The contracting officer shall insert a clause substantially the same as the <PRTPAGE P="69"/>clause at (HSAR) 48 CFR 3052.204-70, Security Requirements for Unclassified Information Technology Resources, in solicitations and contracts which require submission of an IT Security Plan.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3004.8—Government Contract Files</HD>
            <SECTION>
              <SECTNO>3004.804</SECTNO>
              <SUBJECT>Closeout of contract files.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3004.804-1</SECTNO>
              <SUBJECT>Closeout by the office administering the contract.</SUBJECT>
              <P>(b) The quick closeout procedures under (FAR) 48 CFR 42.708 may be used for the settlement of indirect costs under contracts when the estimated amount (excluding any fixed fee) of the contract is $3 million or less if determined appropriate by the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3004.804-5</SECTNO>
              <SUBJECT>Procedures for closing out contract files.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3004.804-570</SECTNO>
              <SUBJECT>Supporting closeout documents.</SUBJECT>
              <P>(a) When applicable and prior to contract closure, the contracting officer shall obtain the listed DHS and Department of Defense (DOD) forms from the contractor for closeout.</P>
              <P>(1) DHS Form 0700-03, Contractor's Release (<E T="03">e.g.,</E> see (FAR) 48 CFR 52.216-7);</P>

              <P>(2) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates, Credits and Other Amounts (<E T="03">e.g.,</E> see (FAR) 48 CFR 52.216-7);</P>

              <P>(3) DHS Form 0700-01, Cumulative Claim and Reconciliation Statement (<E T="03">e.g.,</E> see (FAR) 48 CFR 4.804-5(a)(13); and</P>

              <P>(4) DD Form 882, Report of Inventions and Subcontracts (<E T="03">e.g.,</E> see (FAR) 48 CFR 52.227-14).</P>
              <P>(b) The forms listed in this section (see (HSAR) 48 CFR part 3053) are used primarily for the closeout of cost-reimbursement, time-and-materials, and labor-hour contracts. The forms may also be used for closeout of other contract types to protect the Government's interest.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="71"/>
        <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 3005</EAR>
          <HD SOURCE="HED">PART 3005—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3005.4—Release of Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3005.402</SECTNO>
              <SUBJECT>General public.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3005.90—Publicizing Contract Actions for Personal Services Contracting</HD>
              <SECTNO>3005.9000</SECTNO>
              <SUBJECT>Applicability (USCG).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3005.4—Release of Information</HD>
            <SECTION>
              <SECTNO>3005.402</SECTNO>
              <SUBJECT>General public.</SUBJECT>
              <P>Requests for other specific records information shall be processed according to the DHS Freedom of Information Act rules and regulations (HSAR) 48 CFR 3024.203.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3005.90—Publicizing Contract Actions for Personal Services Contracting.</HD>
            <SECTION>
              <SECTNO>3005.9000</SECTNO>
              <SUBJECT>Applicability (USCG).</SUBJECT>
              <P>Contracts awarded by the U.S. Coast Guard using the procedures in (HSAR) 48 CFR 3037.104-91 are expressly authorized under section 1091 of Title 10 U.S.C. as amended by Public Law 107-296, for the Coast Guard and are exempt from the requirements of (FAR) 48 CFR part 5.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3006</EAR>
          <HD SOURCE="HED">PART 3006—COMPETITION REQUIREMENTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3006.2—Full and Open Competition After Exclusion of Sources</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3006.202</SECTNO>
              <SUBJECT>Establishing or maintaining alternative sources.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3006.3—Other Than Full and Open Competition</HD>
              <SECTNO>3006.302</SECTNO>
              <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT>
              <SECTNO>3006.302-7</SECTNO>
              <SUBJECT>Public interest.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3006.5—Competition Advocates</HD>
              <SECTNO>3006.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
              <SECTNO>3006.502</SECTNO>
              <SUBJECT>Duties and responsibilities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3006.90—Competition Requirements for Personal Services Contracting</HD>
              <SECTNO>3006.9000</SECTNO>
              <SUBJECT>Applicability (USCG).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3006.2—Full and Open Competition After Exclusion of Sources</HD>
            <SECTION>
              <SECTNO>3006.202</SECTNO>
              <SUBJECT>Establishing or maintaining alternative sources.</SUBJECT>
              <P>(b)(1) The HCA is delegated authority to approve a D&amp;F in support of a contract action award under the authority of (FAR) 48 CFR 6.202(a). Submit D&amp;F in the format per (HSAR) 48 CFR 3001.704.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3006.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>3006.302</SECTNO>
              <SUBJECT>Circumstances permitting other than full and open competition.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3006.302-7</SECTNO>
              <SUBJECT>Public interest.</SUBJECT>
              <P>(c)(1)(ii) Requests shall be prepared in writing by the contracting officer, using the format found in (HSAR) 48 CFR 3001.704, and submitted through the HCA to the CPO for review and transmittal to the Secretary for approval.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3006.5—Competition Advocates</HD>
            <SECTION>
              <SECTNO>3006.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
              <P>The DHS Senior Competition Advocate (SCA) is located in the Office of the Chief Procurement Officer (OCPO).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3006.502</SECTNO>
              <SUBJECT>Duties and responsibilities.</SUBJECT>
              <P>(a) OE competition advocates will submit an annual report to the Departmental Advocate for Competition.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="72"/>
            <HD SOURCE="HED">Subpart 3006.90—Competition Requirements For Personal Services Contracting</HD>
            <SECTION>
              <SECTNO>3006.9000</SECTNO>
              <SUBJECT>Applicability (USCG).</SUBJECT>
              <P>Contracts awarded by the U.S. Coast Guard using the procedures in (HSAR) 48 CFR 3037.104-91 are expressly authorized under Section 1091 of Title 10 U.S.C. as amended, for the Coast Guard and are exempt from the competition requirements of (FAR) 48 CFR part 6.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3007—ACQUISITION PLANNING [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3008—REQUIRED SOURCES OF SUPPLIES AND SERVICES [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3009</EAR>
          <HD SOURCE="HED">PART 3009—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3009.1—Responsible Prospective Contractors</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3009.104-70</SECTNO>
              <SUBJECT>Prohibition on contracts with corporate expatriates.</SUBJECT>
              <SECTNO>3009.104-71</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3009.104-72</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>3009.104-73</SECTNO>
              <SUBJECT>Special rules.</SUBJECT>
              <SECTNO>3009.104-74</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <SECTNO>3009.104-75</SECTNO>
              <SUBJECT>Clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3009.4—Debarment, Suspension, and Ineligibility</HD>
              <SECTNO>3009.470</SECTNO>
              <SUBJECT>Reserve Officer Training Corps and military recruiting on campus.</SUBJECT>
              <SECTNO>3009.470-1</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>3009.470-2</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>3009.470-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>3009.470-4</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3009.5—Organizational and Consultant Conflicts of Interest</HD>
              <SECTNO>3009.507</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3009.1—Responsible Prospective Contractors</HD>
            <SECTION>
              <SECTNO>3009.104-70</SECTNO>
              <SUBJECT>Prohibition on contracts with corporate expatriates.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3009.104-71</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>DHS may not enter into any contract with a foreign incorporated entity, which is treated as an inverted domestic corporation under subsection (b) of section 835 of the Homeland Security Act, Pub. L. 107-296.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3009.104-72</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>As used in this subpart—</P>
              <P>
                <E T="03">Expanded Affiliated Group</E> means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting `more than 50 percent' for `at least 80 percent' each place it appears.</P>
              <P>
                <E T="03">Foreign Incorporated Entity</E> means any entity which is, or but for subsection (b) of section 835 of the Homeland Security Act, Pub. L. 107-296, would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.</P>
              <P>
                <E T="03">Inverted Domestic Corporation.</E> A foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—</P>
              <P>(1) The entity completes after the date of enactment of this Act, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;</P>
              <P>(2) After the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—</P>
              <P>(i) In the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or</P>

              <P>(ii) In the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and<PRTPAGE P="73"/>
              </P>
              <P>(3) The expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.</P>
              <P>
                <E T="03">Person, domestic, and foreign</E> have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3009.104-73</SECTNO>
              <SUBJECT>Special rules.</SUBJECT>
              <P>The following special rules shall apply when determining whether a foreign incorporated entity should be treated as an inverted domestic corporation.</P>
              <P>(a) <E T="03">Certain stock disregarded.</E> For the purpose of treating a foreign incorporated entity as an inverted domestic corporation these shall not be taken into account in determining ownership:</P>
              <P>(1) Stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or</P>
              <P>(2) Stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of section 835 of the Homeland Security Act (the Act), Pub. L. 107-296.</P>
              <P>(b) <E T="03">Plan deemed in certain cases.</E> If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is after the date of enactment of this Act and which is 2 years before the ownership requirements of subsection (b)(2) of the Act are met, such actions shall be treated as pursuant to a plan.</P>
              <P>(c) <E T="03">Certain transfers disregarded.</E> The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.</P>
              <P>(d) <E T="03">Special rule for related partnerships.</E> For purposes of applying subsection (b) to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as a partnership.</P>
              <P>(e) <E T="03">Treatment of certain rights.</E> (1) Certain rights shall be treated as stocks to the extent necessary to reflect the present value of all equitable interests incident to the transaction, as follows:</P>
              <P>(i) Warrants;</P>
              <P>(ii) Options;</P>
              <P>(iii) Contracts to acquire stock;</P>
              <P>(iv) Convertible debt instruments;</P>
              <P>(v) Others similar interests.</P>
              <P>(2) Rights labeled as stocks shall not be treated as stocks whenever it is deemed appropriate to do so to reflect the present value of the transaction or to disregard transactions whose recognition would defeat the purpose of section 835 of the Act.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3009.104-74</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>(a) The Secretary shall waive subsection (a) of section 835 of Pub. L. 107-296 with respect to any specific contract if the Secretary determines that the waiver is required in the interest of homeland security, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.</P>
              <P>(b) Contractors shall submit waiver requests to the CPO. If a waiver is granted, a copy of the approved waiver shall be attached with the bid or proposal.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3009.104-75</SECTNO>
              <SUBJECT>Clause.</SUBJECT>
              <P>Insert the provision (HSAR) 48 CFR 3052.209-70, Prohibition on Contracts with Corporate Expatriates, in all solicitations and contracts.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3009.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>3009.470</SECTNO>
              <SUBJECT>Reserve Officer Training Corps and military recruiting on campus.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3009.470-1</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>
                <E T="03">Institution of higher education</E> as used in this section, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="74"/>
              <SECTNO>3009.470-2</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) Except as provided in paragraph (b) of this subsection, 10 U.S.C. 983 prohibits the Department of Homeland Security from providing funds by contract or grant to an institution of higher education if the Secretary of Defense determines that the institution has a policy or practice that prohibits or in effect prevents—</P>
              <P>(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) at that institution;</P>
              <P>(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;</P>
              <P>(3) The Secretary of a military department or the Secretary of Homeland Security from gaining entry to campuses, or access to students on campuses, for purposes of military recruiting; or</P>
              <P>(4) Military recruiters from accessing certain information pertaining to students enrolled at that institution.</P>
              <P>(b) The prohibition in paragraph (a) of this subsection does not apply to an institution of higher education if the Secretary of Defense determines that—</P>
              <P>(1) The institution (and each subelement of that institution) has ceased the policy or practice described in paragraph (a) of this subsection; or</P>
              <P>(2) The institution involved has a long-standing policy of pacifism based on historical religious affiliation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3009.470-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>Whenever the Secretary of Defense determines that an institution of higher education (including any subelement of such institution) is ineligible and the provisions of 10 U.S.C. 983 apply:</P>
              <P>(a) The Secretary of Defense will list the institution on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration (also see (FAR) 48 CFR 9.404 and 32 CFR part 216); and</P>
              <P>(b) The Department of Homeland Security—</P>
              <P>(1) Shall not solicit offers from, award contracts to, or consent to subcontracts with the institution;</P>
              <P>(2) Shall make no further payments under existing contracts with the institution; and</P>
              <P>(3) Shall terminate existing contracts with the institution.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3009.470-4</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert the clause at (HSAR) 48 CFR 3052.3009-71, Reserve Officer Training Corps and Military Recruiting on Campus, in all solicitations and contracts with institutions of higher education.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3009.5—Organizational and Consultant Conflicts of Interest</HD>
            <SECTION>
              <SECTNO>3009.507</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <P>The contracting officer may insert the provision at (HSAR) 48 CFR 3052.209-72, “Disclosure of Conflicts of Interest” in all solicitations for negotiated acquisitions, and when simplified acquisitions procedures in (FAR) 48 CFR Part 13, are not used. The contracting officer shall ensure the conditions enumerated in (FAR) 48 CFR 9.507-2 warrant inclusion.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3010—MARKET RESEARCH [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3011</EAR>
          <HD SOURCE="HED">PART 3011—DESCRIBING AGENCY NEEDS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3011.1—Selecting and Developing Requirements Documents</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3011.103</SECTNO>
              <SUBJECT>Market acceptance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3011.2—Using and Maintaining Requirements</HD>
              <SECTNO>3011.204-70</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <SECTNO>3011.204-90</SECTNO>
              <SUBJECT>Solicitation provisions and contract clause (USCG).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3011.5—Liquidated Damages</HD>
              <SECTNO>3011.501</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3011.6—Priorities and Allocations</HD>
              <SECTNO>3011.602</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="75"/>
            <HD SOURCE="HED">Subpart 3011.1—Selecting and Developing Requirements Documents</HD>
            <SECTION>
              <SECTNO>3011.103</SECTNO>
              <SUBJECT>Market acceptance.</SUBJECT>
              <P>(a) Contracting officers may act on behalf of the head of the agency in this subpart only. Contracting officers may, under appropriate circumstances, require offerors to make the required demonstrations.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3011.2—Using and Maintaining Requirements Documents</HD>
            <SECTION>
              <SECTNO>3011.204-70</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.211-70, Index for Specifications, when an index or table of contents may be furnished with the specification.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3011.204-90</SECTNO>
              <SUBJECT>Solicitation provision and contract clause (USCG).</SUBJECT>
              <P>(a) For U.S. Coast Guard contracts, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, (also see (HSAR) 48 CFR 3013.302-70) when the bar coding of supplies is necessary.</P>
              <P>(b) See (HSAR) 48 CFR 3013.302-590 for a provision which is required when the USCG clause at HSAR 3052.211-90, Bar Coding Requirement, is used with simplified acquisition procedures.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3011.5—Liquidated Damages</HD>
            <SECTION>
              <SECTNO>3011.501</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(d) The HCA may reduce or waive the amount of liquidated damages assessed under a contract, if the Commissioner, Financial Management Service, or designee approves.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3011.6—Priorities and Allocations</HD>
            <SECTION>
              <SECTNO>3011.602</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(c) The following DHS OEs may assign priority ratings on contracts and orders placed with contractors to acquire products, materials, and services under the Defense Priorities and Allocations System (DPAS) regulations (15 CFR part 700):</P>
              <P>(1) The U.S. Coast Guard in support of certified national defense related programs; and</P>
              <P>(2) The Federal Emergency Management Agency in support of emergency preparedness activities.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3012—ACQUISITION OF COMMERCIAL ITEMS [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="77"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACT METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 3013</EAR>
          <HD SOURCE="HED">PART 3013—SIMPLIFIED ACQUSITION PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3013.1—Procedures</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3013.106</SECTNO>
              <SUBJECT>Soliciting competition, evaluation of quotations or offers, award and documentation.</SUBJECT>
              <SECTNO>3013.106-190</SECTNO>
              <SUBJECT>Soliciting competition (USCG).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3013.3—Simplified Acquisition Methods</HD>
              <SECTNO>3013.302</SECTNO>
              <SUBJECT>Purchase orders.</SUBJECT>
              <SECTNO>3013.302-590</SECTNO>
              <SUBJECT>Clauses (USCG).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3013.70—Special Streamlined Acquisition Authority</HD>
              <SECTNO>3013.7000</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3013.7001</SECTNO>
              <SUBJECT>Delegations.</SUBJECT>
              <SECTNO>3013.7002</SECTNO>
              <SUBJECT>Reporting requirements.</SUBJECT>
              <SECTNO>3013.7003</SECTNO>
              <SUBJECT>Micro-purchase authority.</SUBJECT>
              <SECTNO>3013.7004</SECTNO>
              <SUBJECT>Simplified acquisition authority.</SUBJECT>
              <SECTNO>3013.7005</SECTNO>
              <SUBJECT>Test program for certain commercial items.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3013.1—Procedures</HD>
            <SECTION>
              <SECTNO>3013.106</SECTNO>
              <SUBJECT>Soliciting competition, evaluation of quotations or offers, award and documentation.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3013.106-190</SECTNO>
              <SUBJECT>Soliciting competition (USCG).</SUBJECT>
              <P>For the U.S. Coast Guard, the contracting officer shall insert the USCG provision at (HSAR) 48 CFR 3052.213-90, Evaluation Factor for Coast Guard Performance of Bar Coding Requirement, in requests for quotations when the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, is used with simplified acquisition procedures.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3013.3—Simplified Acquisition Methods</HD>
            <SECTION>
              <SECTNO>3013.302</SECTNO>
              <SUBJECT>Purchase orders.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3013.302-590</SECTNO>
              <SUBJECT>Clauses (USCG).</SUBJECT>
              <P>For the U.S. Coast Guard, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, in requests for quotations and purchase orders issued by the Inventory Control Points when bar coding of supplies is necessary.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3013.70—Special Streamlined Acquisition Authority</HD>
            <SECTION>
              <SECTNO>3013.7000</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The Secretary may use special streamlined acquisition authority set forth in Public Law 107-296, section 833, with respect to any procurement made during the period beginning on November 25, 2002 and ending September 30, 2007 where if the Secretary determines in writing the mission of the Department (described in Pub. L. 107-296, section 101) would be seriously impaired without the use of such authorities.</P>
              <P>(b) The Secretary may deem any item or service to be a commercial item for the purpose of federal procurement laws for procurements described in (HSAR) 48 CFR 3013.7005.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3013.7001</SECTNO>
              <SUBJECT>Delegations.</SUBJECT>
              <P>The Secretary may delegate this authority to an officer of the Department who is appointed by the President with the advice and consent of the Senate. Delegations of this authority are discussed in HSAM 3013.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3013.7002</SECTNO>
              <SUBJECT>Reporting requirements.</SUBJECT>
              <P>(a) The Secretary shall submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate—</P>
              <P>(1) Notification of such determination; and</P>
              <P>(2) The justification for such determination.<PRTPAGE P="78"/>
              </P>
              <P>(b) This report shall be submitted no later than seven days after the date of any determination. Reporting requirements and procedures are discussed in HSAM 3013.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3013.7003</SECTNO>
              <SUBJECT>Micro-purchase authority.</SUBJECT>
              <P>(a) When the streamlined acquisition authority is exercised, the micro-purchase threshold is raised to $7,500.</P>
              <P>(b) The authority in this section may be exercised only by individuals designated by the Secretary. The number of employees shall be—</P>
              <P>(1) Fewer than the number of employees of the Department that are authorized to make purchases without obtaining competitive quotations.</P>
              <P>(2) Sufficient to ensure the geographic dispersal of the availability of the use of the procurement authority under such paragraph at locations reasonably considered to be potential terrorist targets; and</P>
              <P>(3) Sufficiently limited to allow for careful monitoring of employees designated under each paragraph.</P>
              <P>(c) Procurements made under this authority shall be subject to review by a designated supervisor on not less than a monthly basis. The supervisor responsible for the review shall be responsible for no more than seven employees making procurements under this authority.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3013.7004</SECTNO>
              <SUBJECT>Simplified acquisition authority.</SUBJECT>
              <P>When the streamlined acquisition authority is exercised, the simplified acquisition threshold shall be:</P>
              <P>(a) $200,000 in the case of a contract to be awarded and performed, or purchase to be made, within the United States; and</P>
              <P>(b) $300,000 in the case of a contract to be awarded and performed, or purchase to be made, outside of the United States.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3013.7005</SECTNO>
              <SUBJECT>Test program for certain commercial items.</SUBJECT>
              <P>When the streamlined authority is exercised, the $5,000,000 limitation provided in (FAR) 48 CFR subpart 13.5 is increased to $7,500,000.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3014—SEALED BIDDING [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3015</EAR>
          <HD SOURCE="HED">PART 3015—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3015.2—Solicitation and Receipt of Proposals and Information</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3015.204-3</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>3015.207-70</SECTNO>
              <SUBJECT>Handling proposals and information.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3015.4—Contract Pricing</HD>
              <SECTNO>3015.404-470</SECTNO>
              <SUBJECT>Payment of profit or fee.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3015.6—Unsolicited Proposals</HD>
              <SECTNO>3015.602</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>3015.603</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3015.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>
              <SECTNO>3015.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <SECTNO>3015.606-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
              <SECTNO>3015.606-2</SECTNO>
              <SUBJECT>Evaluation.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3015.2—Solicitation and Receipt of Proposals and Information</HD>
            <SECTION>
              <SECTNO>3015.204-3</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The contracting officer shall insert clause (HSAR) 48 CFR 3052.215-70, Key Personnel or Facilities, in solicitations and contracts when the selection for award is substantially based on the offeror's possession of special capabilities regarding personnel or facilities.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3015.207-70</SECTNO>
              <SUBJECT>Handling proposals and information.</SUBJECT>
              <P>(b) Proposals and information may be released outside the Government for evaluation and similar purposes if qualified personnel are not available to thoroughly evaluate or analyze proposals or information. The contracting officer shall document the file in such cases.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3015.4—Contract Pricing</HD>
            <SECTION>
              <SECTNO>3015.404-470</SECTNO>
              <SUBJECT>Payment of profit or fee.</SUBJECT>
              <P>The contracting officer shall not pay profit or fee on undefinitized contracts or undefinitized contract modifications. Any profit or fee earned shall be paid after the contract or modification is definitized.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="79"/>
            <HD SOURCE="HED">Subpart 3015.6—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>3015.602</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>The Department of Homeland Security (DHS) encourages new and innovative proposals and ideas that will sustain or enhance the DHS mission, which is stipulated in the Homeland Security Act of 2002, Pub. L. 107-296.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3015.603</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) Costs associated with the time and effort to prepare a proposal are solely the responsibility of and assumed by the offeror that is submitting the proposal.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3015.604</SECTNO>
              <SUBJECT>Agency points of contact.</SUBJECT>

              <P>(a) The DHS does not have a central clearinghouse for distributing information or assistance regarding unsolicited proposals. Each HCA is responsible for disseminating the information required at (FAR) 48 CFR 15.604(a). General information concerning DHS's scope of responsibilities and functions is available at <E T="03">http://www.dhs.gov/dhspublic/.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>3015.606</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <P>(a) The agency authority to establish procedures for receiving, reviewing and evaluating, and timely disposing of unsolicited proposals, consistent with the requirements of (FAR) 48 CFR 15.6 and this subpart, is delegated to each HCA.</P>

              <P>(b) The agency authority to establish points of contact (see (FAR) 48 CFR 15.604) to coordinate the receipt and handling of unsolicited proposals is delegated to each HCA. Contracting offices are designated as the receiving point for unsolicited proposals. Persons within DHS (<E T="03">e.g.,</E> technical personnel) who receive proposals shall forward them to their cognizant contracting office.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3015.606-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
              <P>(a) The agency contact point shall make an initial review determination within seven calendar days after receiving a proposal.</P>
              <P>(b) If the proposal meets the requirements at (FAR) 48 CFR 15.606-1(a), the agency contact point shall acknowledge receipt within three calendar days after making the initial review determination and advise the offeror of the general timeframe for completing the evaluation.</P>
              <P>(c) If the proposal does not meet the requirements of (FAR) 48 CFR 15.606-1(a), the agency contact point shall return the proposal within three calendar days after making the determination. The offeror shall be informed, in writing, of the reasons for returning the proposal.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3015.606-2</SECTNO>
              <SUBJECT>Evaluation.</SUBJECT>
              <P>(a) Comprehensive evaluations should be completed within sixty calendar days after making the initial review determination. If additional time is needed, then the agency contact point shall advise the offeror accordingly and provide a new evaluation completion date. The evaluating office shall neither reproduce nor disseminate the proposal to other offices without the consent of the contracting office from which the proposal was received for evaluation. If the evaluating office requires additional information from the offeror, the evaluator shall convey this request to the responsible contracting office. The evaluator shall not directly contact the proposal originator.</P>
              <P>(b) If the evaluators recommend accepting the proposal, the responsible contracting officer shall ensure compliance with all of the requirements of (FAR) 48 CFR 15.607.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3016</EAR>
          <HD SOURCE="HED">PART 3016—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3016.2—Fixed-Price Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3016.203</SECTNO>
              <SUBJECT>Fixed-price contracts with economic price adjustment.</SUBJECT>
              <SECTNO>3016.203-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>3016.203-470</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3016.4—Incentive Contracts</HD>
              <SECTNO>3016.406</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3016.5—Indefinite-Delivery Contracts</HD>
              <SECTNO>3016.505</SECTNO>
              <SUBJECT>Ordering.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3016.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
              <SECTNO>3016.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
              <SECTNO>3016.603-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <PRTPAGE P="80"/>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3016.2—Fixed-Price Contracts</HD>
            <SECTION>
              <SECTNO>3016.203</SECTNO>
              <SUBJECT>Fixed price contracts with economic price adjustments.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3016.203-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(d)(2) Any clause using this method shall be prepared and approved by the contracting officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3016.203-470</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
              <P>The contracting officer shall insert a provision substantially the same as (HSAR) 48 CFR 3052.216-70, Evaluation of Offers Subject to an Economic Price Adjustment Clause, in solicitations containing an economic price adjustment clause.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3016.4—Incentive Contracts</HD>
            <SECTION>
              <SECTNO>3016.406</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(e)(1)(i) The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-71, Determination of Award Fee, in solicitations and contracts that includes an award fee.</P>
              <P>(ii) The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-72, Performance Evaluation Plan, in all solicitations and contracts that includes an award fee.</P>
              <P>(iii) The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-73, Distribution of Award Fee, in all solicitations and contracts that includes an award fee.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3016.5—Indefinite-Delivery Contracts</HD>
            <SECTION>
              <SECTNO>3016.505</SECTNO>
              <SUBJECT>Ordering.</SUBJECT>
              <P>(b)(5) The OE Competition Advocate is designated as the OE Task and Delivery Order Ombudsman, unless otherwise provided in OE procedures.</P>
              <P>(i) If any corrective action is needed after reviewing complaints from contractors on task and delivery order contracts, the OE Ombudsman shall provide a written determination of such action to the contracting officer.</P>
              <P>(ii) Issues that cannot be resolved within the OE, shall be forwarded to the DHS Task and Delivery Order Ombudsman for review and resolution.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3016.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
            <SECTION>
              <SECTNO>3016.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3016.603-4</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-74, Settlement of Letter Contract, in all definitized letter contracts.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3017</EAR>
          <HD SOURCE="HED">PART 3017—SPECIAL CONTRACTING METHODS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3017.2—Options</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3017.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3017.4—Leader Company Contracting</HD>
              <SECTNO>3017.402</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3017.70—Energy Savings Performance Contracts</HD>
              <SECTNO>3017.7000</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3017.90—Fixed Price Contracts for Vessel Repair, Alteration or Conversion</HD>
              <SECTNO>3017.9000</SECTNO>
              <SUBJECT>Clauses (USCG).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3017.2—Options.</HD>
            <SECTION>
              <SECTNO>3017.202</SECTNO>
              <SUBJECT>Use of options.</SUBJECT>
              <P>(a) Contracting officers shall not use unpriced options.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3017.4—Leader Company Contracting</HD>
            <SECTION>
              <SECTNO>3017.402</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>(a)(4) Submit requests per (HSAR) 48 CFR 3001.7000(a).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="81"/>
            <HD SOURCE="HED">Subpart 3017.70—Energy Savings Performance Contracts</HD>
            <SECTION>
              <SECTNO>3017.7000</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>DHS and its OEs may enter into Energy Savings Performance Contracts under 42 U.S.C. 8287, as amended subject to the requirements of 10 CFR part 436. Proposed contracts under this section shall be coordinated with the CPO.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3017.90—Fixed Price Contracts for Vessel Repair, Alteration or Conversion</HD>
            <SECTION>
              <SECTNO>3017.9000</SECTNO>
              <SUBJECT>Clauses (USCG).</SUBJECT>
              <P>For the U.S. Coast Guard, the following clauses are to be used in specific solicitations and contracts:</P>
              <P>(a) The clauses in (HSAR) 48 CFR 3052.217-90 through (HSAR) 48 CFR 3052.217-93 and (HSAR) 48 CFR 3052.217-95 through (HSAR) 48 CFR 3052.217-99 shall be included and clause (HSAR) 48 CFR 3052.217-94 may be included in sealed bid fixed-price solicitations and contracts for vessel repair, alteration, or conversion which are to be performed within the United States, its possessions, or Puerto Rico. The contracting officer may, in whole or in part (such as after incidents), increase the dollar amounts in the clause at (HSAR) 48 CFR 3052.217-95(b)(6) and (c)(1) consistent with contract size, inflation, and other circumstances.</P>
              <P>(b) Unless inappropriate, the clauses in (HSAR) 48 CFR 3052.217-90 through (HSAR) 48 CFR 3052.217-93 and (HSAR) 48 CFR 3052.217-95 through (HSAR) 48 CFR 3052.217-99 should be included and (HSAR) 48 CFR 3052.217-94 may be included in negotiated solicitations and contracts to be performed outside the United States. The contracting officer may, in whole or in part (such as after incidents), increase the dollar amounts in the clause at (HSAR) 48 CFR 3052.217-95(b)(6) and (c)(1) consistent with contract size, inflation, and other circumstances.</P>
              <P>(c) The clause at (HSAR) 48 CFR 3052.217-100, Guarantee, shall be used where general guarantee provisions are deemed desirable by the contracting officer.</P>
              <P>(1) When inspection and acceptance tests will afford full protection to the Government in ascertaining conformance to specifications and the absence of defects and deficiencies, no guarantee clause for that purpose shall be included in the contract.</P>
              <P>(2) The customary guarantee period, to be inserted in the first sentence of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee, is 60 days. However, in certain instances, the contracting officer may desire to include a clause in a contract for a guarantee period of more than 60 days. In such instances:</P>
              <P>(i) Where, after full inquiry, it has been determined that such longer guarantee period will not involve increased costs, a longer guarantee period may be substituted by the contracting officer for the usual 60 days; or</P>
              <P>(ii) Where the full inquiry discloses that such longer guarantee period will involve, or is reasonably expected to involve, increased costs, such facts and the reasons for the need for such longer period shall be set forth in letter form to the COCO, requesting approval for use of guarantee period in excess of 60 days. Upon approval, the longer period may be inserted by the contracting officer in the first sentence of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3018 [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="83"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 3019</EAR>
          <HD SOURCE="HED">PART 3019—SMALL BUSINESS PROGRAMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3019.2—Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3019.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3019.7—The Small Business Subcontracting Program</HD>
              <SECTNO>3019.705</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer under the subcontracting assistance program.</SUBJECT>
              <SECTNO>3019.705-1</SECTNO>
              <SUBJECT>General support for the program.</SUBJECT>
              <SECTNO>3019.708</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <SECTNO>3019.708-70</SECTNO>
              <SUBJECT>DHS solicitation and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3019.2—Policies</HD>
            <SECTION>
              <SECTNO>3019.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>(d) The Director, Office of Small and Disadvantaged Business Utilization is responsible for the implementation and execution of the small and small disadvantaged business programs required by the Small Business Act.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3019.7—The Small Business Subcontracting Program</HD>
            <SECTION>
              <SECTNO>3019.705</SECTNO>
              <SUBJECT>Responsibilities for the contracting officer under the subcontracting program.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3019.705-1</SECTNO>
              <SUBJECT>General support for the program.</SUBJECT>
              <P>Contracting officers will consider making the submission of a subcontracting plan part of the evaluation criteria. Contracting officers may also consider an offerors past performance in previous subcontracting plan goals and efforts to achieve those goals.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3019.708</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3019.708-70</SECTNO>
              <SUBJECT>DHS solicitation and contract clauses.</SUBJECT>
              <P>(a) The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.219-70, Small Business and Small Disadvantaged Business Subcontracting Reporting, in solicitations and contracts containing the clause at (FAR) 48 CFR 52.219-9.</P>
              <P>(b) The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.219-71, DHS Mentor-Protégé Program in all solicitations that anticipate the need for a subcontracting plan.</P>
              <P>(c) The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.219-72, Evaluation of Prime Contractor Participation in the Mentor-Protégé Program, in all solicitations containing (HSAR) 48 CFR 3052.219-71, Mentor-Protégé Program and (FAR) 48 CFR 52.219-9 Small Business Subcontracting Plan.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3020-3021 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3022</EAR>
          <HD SOURCE="HED">PART 3022—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3022.1—Basic Labor Policies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3022.101</SECTNO>
              <SUBJECT>Labor relations.</SUBJECT>
              <SECTNO>3022.101-70</SECTNO>
              <SUBJECT>Admittance of union representatives to DHS installations.</SUBJECT>
              <SECTNO>3022.101-71</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3022.4—Labor Standards for Contracts Involving Construction</HD>
              <SECTNO>3022.406</SECTNO>
              <SUBJECT>Administration and enforcement.</SUBJECT>
              <SECTNO>3022.406-9</SECTNO>
              <SUBJECT>Withholding from or suspension of contract payments.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3022.90—Local Hire (USCG)</HD>
              <SECTNO>3022.9000</SECTNO>
              <SUBJECT>Policy (USCG).</SUBJECT>
              <SECTNO>3022.9001</SECTNO>
              <SUBJECT>Contract clause (USCG).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <PRTPAGE P="84"/>
            <HD SOURCE="HED">Subpart 3022.1—Basic Labor Policies</HD>
            <SECTION>
              <SECTNO>3022.101</SECTNO>
              <SUBJECT>Labor relations.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3022.101-70</SECTNO>
              <SUBJECT>Admittance of union representatives to DHS installations.</SUBJECT>
              <P>(a) It is the policy of DHS to admit labor union representatives of contractor employees to DHS installations to visit work sites and transact labor union business with contractors, their employees, or union stewards pursuant to existing union collective bargaining agreements. Their presence shall not interfere with the contractor's work progress under a DHS contract nor violate safety or security regulations that may be applicable to persons visiting the installation. Union representatives will not be permitted to conduct meetings, collect union dues, or make speeches concerning union matters while visiting a work site.</P>
              <P>(b) Whenever a union representative is denied entry to a work site, the person denying entry shall make a written report to the DHS labor coordinator and OE labor advisor, if any, within two working days after the request for entry is denied. The report shall include the reason(s) for the denial, the name of the representative denied entry, the union affiliation and number, and the name and title of the person that denied the entry.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3022.101-71</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) The contracting officer, may, when applicable, insert the clause at (HSAR) 48 CFR 3052.222-70, Strikes or Picketing Affecting Timely Completion of the Contract Work, in solicitations and contracts.</P>
              <P>(b) The contracting officer may, when applicable, insert the clause at (HSAR) 48 CFR 3052.222-71, Strikes or Picketing Affecting Access to a DHS Facility, in solicitations and contracts.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3022.4—Labor Standards for Contracts Involving Construction</HD>
            <SECTION>
              <SECTNO>3022.406</SECTNO>
              <SUBJECT>Administration and enforcement.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3022.406-9</SECTNO>
              <SUBJECT>Withholding from or suspension of contract payments.</SUBJECT>
              <P>(c) Disposition of contract payments withheld or suspended.</P>
              <P>(1) Forwarding wage underpayments to the Comptroller General. The contracting officer shall ensure that a completed DHS Form 0700-04, Employee Claim for Wage Restitution, is obtained from each employee claiming restitution under the contract. The Comptroller General (Claims Division) shall receive this form with a completed SF 1093, Schedule of Withholding Under the Davis-Bacon Act and/or the Contract Work Hours and Safety Standards Act, before payment can be made to the employee.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3022.90—Local Hire (USCG)</HD>
            <SECTION>
              <SECTNO>3022.9000</SECTNO>
              <SUBJECT>Policy (USCG).</SUBJECT>
              <P>As required by 14 U.S.C. 666, the U.S. Coast Guard shall include a provision for local hire in each contract for construction or services to be performed in whole or in part in a State that has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3022.9001</SECTNO>
              <SUBJECT>Contract clause (USCG).</SUBJECT>
              <P>For the U.S. Coast Guard, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.222-90, Local Hire Provision, in all solicitations and contracts as stated in (HSAR) 48 CFR 3022.9000.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="85"/>
          <EAR>Pt. 3023</EAR>
          <HD SOURCE="HED">PART 3023—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3023.3—Hazardous Material Identification and Material Safety Data</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3023.303</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3023.5—Drug-Free Workplace</HD>
              <SECTNO>3023.501</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>3023.506</SECTNO>
              <SUBJECT>Suspension of payments, termination of contract, and debarment and suspension actions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3023.10—Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements</HD>
              <SECTNO>3023.1002</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3023.90—Safety Requirements for USCG Contracts</HD>
              <SECTNO>3023.9000</SECTNO>
              <SUBJECT>Contract Clause (USCG).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3023.3—Hazardous Material Identification and Material Safety Data</HD>
            <SECTION>
              <SECTNO>3023.303</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.223-70, Removal or Disposal of Hazardous Substances—Applicable Licenses and Permits, in solicitations and contracts involving the removal or disposal of hazardous waste material.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3023.5—Drug-Free Workplace</HD>
            <SECTION>
              <SECTNO>3023.501</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>(d) The head of the law enforcement organizational element may determine that (FAR) 48 CFR 23.501 does not apply. This authority may not be redelegated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3023.506</SECTNO>
              <SUBJECT>Suspension of payments, termination of contract, and debarment and suspension actions.</SUBJECT>
              <P>(e) Submit requests per (HSAR) 48 CFR 3001.7000(b).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3023.10—Federal Compliance With Right-to-Know Laws and Pollution Requirements</HD>
            <SECTION>
              <SECTNO>3023.1002</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>DHS MD 5110, Environmental Compliance, provides guidance and direction for compliance with environmental laws.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3023.90—Safety Requirements for USCG Contracts</HD>
            <SECTION>
              <SECTNO>3023.9000</SECTNO>
              <SUBJECT>Contract clause (USCG).</SUBJECT>
              <P>For the U.S. Coast Guard, where all or part of a contract will be performed on Government-owned or leased property, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.223-90, Accident and Fire Reporting.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3024</EAR>
          <HD SOURCE="HED">PART 3024—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3024.1—Protection of Individual Privacy</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3024.102-70</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3024.2—Freedom of Information Act</HD>
              <SECTNO>3024.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3024.1—Protection of Individual Privacy</HD>
            <SECTION>
              <SECTNO>3024.102-70</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Procedures for implementing the Privacy Act of 1974 are contained in Departmental regulations under 6 CFR part 5, subpart B, Privacy Act.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="86"/>
            <HD SOURCE="HED">Subpart 3024.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>3024.203</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) The Department's implementation of the Freedom of Information Act is codified in regulations 6 CFR part 5, subpart B, FOIA. Information request concerning awards beyond those routinely handled by contracting officers (<E T="03">e.g.,</E> identification of successful offerors, public announcements, debriefings, surety notices under HSAR 3028.106-6) shall be submitted to the FOIA Office of the Organizational Element making the award. The FOIA office for the DHS Office of Operations only, is Departmental Disclosure Officer (DDO), DHS, Washington, DC 20528 or <E T="03">foia@dhs.gov.</E>
              </P>
              <P>(b) <E T="03">See</E> (FAR) 48 CFR 15.207(b) on safeguarding proposals.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3025—FOREIGN ACQUISITION [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3026—OTHER SOCIOECONOMIC PROGRAMS [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3027</EAR>
          <HD SOURCE="HED">PART 3027—PATENTS, DATA, AND COPYRIGHTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3027.2—Patents</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3027.205</SECTNO>
              <SUBJECT>Adjustment of royalties.</SUBJECT>
              <SECTNO>3027.208</SECTNO>
              <SUBJECT>Use of patented technology under the North American Free Trade Agreement.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3027.3—Patent Rights Under Government Contracts</HD>
              <SECTNO>3027.304-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3027.304-5</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <SECTNO>3027.305</SECTNO>
              <SUBJECT>Administration of Patent Rights Clauses.</SUBJECT>
              <SECTNO>3027.305-4</SECTNO>
              <SUBJECT>Administration of Patent Rights Clause.</SUBJECT>
              <SECTNO>3027.306</SECTNO>
              <SUBJECT>Licensing background patent rights to third parties.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3027.4—Rights in Data and Copyrights</HD>
              <SECTNO>3027.404</SECTNO>
              <SUBJECT>Basic Rights in Data clause.</SUBJECT>
              <SECTNO>3027.409</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3027.2—Patents</HD>
            <SECTION>
              <SECTNO>3027.205</SECTNO>
              <SUBJECT>Adjustment of royalties.</SUBJECT>
              <P>(a) Reports shall be made to OE legal counsel. Contracting Officers shall coordinate actions with the COCO and HCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3027.208</SECTNO>
              <SUBJECT>Use of patented technology under the North American Free Trade Agreements.</SUBJECT>
              <P>(f) Contracting officers shall ensure compliance.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3027.3—Patent Rights under Government Contracts</HD>
            <SECTION>
              <SECTNO>3027.304-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Interim and final invention reports and notification of all subcontracts for experimental, developmental, or research work (FAR) 48 CFR 27.304-1(e)(2)(ii) may be submitted on DD Form 882, Report of Inventions and Subcontracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3027.304-5</SECTNO>
              <SUBJECT>Appeals.</SUBJECT>
              <P>(a) Contracting officers are authorized to take the specified actions.</P>
              <P>(b) Appeals shall be made to the CPO.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3027.305</SECTNO>
              <SUBJECT>Administration of Patent Rights Clauses.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3027.305-4</SECTNO>
              <SUBJECT>Conveyance of invention rights acquired by the Government.</SUBJECT>
              <P>The contracting officer shall ensure that solicitations and contracts which include a patent rights clause include a means for the contractor to report inventions made in the course of contract performance and at contract completion. This requirement may be fulfilled by requiring the contractor to submit a DD Form 882, Report of Inventions and Subcontract.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3027.306</SECTNO>
              <SUBJECT>Licensing background patent rights to third parties.</SUBJECT>
              <P>(b) The CPO shall make the required determinations and notifications under this subpart.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="87"/>
            <HD SOURCE="HED">Subpart 3027.4—Rights in Data and Copyrights</HD>
            <SECTION>
              <SECTNO>3027.404</SECTNO>
              <SUBJECT>Basic rights in data clause.</SUBJECT>
              <P>(f)(1)(iii) The DHS will use Alternate IV of the (FAR) 48 CFR clause 52.227-14 in all contracts containing the basic clause, unless the HCA approves an exclusion. Approval at a level above the contracting officer is required for the contract to exclude items or categories of data from Alternative IV.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3027.409</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>Alternate IV of the (FAR) 48 CFR clause 52.227-14 shall be included in solicitations and contracts containing the basic clause unless the HCA approves an exclusion. Additional non-conflicting alternates may be used.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3028</EAR>
          <HD SOURCE="HED">PART 3028—BONDS AND INSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3028.1—Bonds and Other Financial Protections</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3028.106</SECTNO>
              <SUBJECT>Administration.</SUBJECT>
              <SECTNO>3028.106-6</SECTNO>
              <SUBJECT>Furnishing information.</SUBJECT>
              <SECTNO>3028.106-70</SECTNO>
              <SUBJECT>Execution and administration of bonds.</SUBJECT>
              <SECTNO>3028.106-490</SECTNO>
              <SUBJECT>Contract clause (USCG).</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3028.3—Insurance</HD>
              <SECTNO>3028.306</SECTNO>
              <SUBJECT>Insurance under fixed-price contracts.</SUBJECT>
              <SECTNO>3028.306-90</SECTNO>
              <SUBJECT>Contracts for lease of aircraft (USCG).</SUBJECT>
              <SECTNO>3028.307</SECTNO>
              <SUBJECT>Insurance under cost-reimbursement contracts.</SUBJECT>
              <SECTNO>3028.307-1</SECTNO>
              <SUBJECT>Group insurance plans.</SUBJECT>
              <SECTNO>3028.310</SECTNO>
              <SUBJECT>Contract clause for work on a Government installation.</SUBJECT>
              <SECTNO>3028.310-70</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <SECTNO>3028.311</SECTNO>
              <SUBJECT>Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.</SUBJECT>
              <SECTNO>3028.311-1</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3028.1—Bonds and Other Financial Protections</HD>
            <SECTION>
              <SECTNO>3028.106</SECTNO>
              <SUBJECT>Administration.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3028.106-6</SECTNO>
              <SUBJECT>Furnishing information.</SUBJECT>
              <P>(b) The contracting officer shall, upon request, furnish the name and address of the prime contractor's surety or sureties to employees, suppliers, and subcontractors having a contractual or employment relationship with prime contractors, subcontractors or suppliers. When furnishing surety information, the inquirer may also be informed that:</P>
              <P>(1) Persons believing that they have legal remedies under the Miller Act are cautioned to consult their own legal advisor regarding the proper steps to take to obtain remedies.</P>
              <P>(2) On construction contracts exceeding $2,000, if the contracting officer is informed (through routine compliance checking, a complaint, or a request for information) that a laborer, mechanic, apprentice, trainee, watchman, or guard employed by the contractor or subcontractor at any tier may have been paid wages less than those required by the applicable labor standards provisions of the contract, the contracting officer shall promptly initiate an investigation in accordance with (FAR) 48 CFR Subpart 22.4, irrespective of the employee's rights under the Miller Act. When an employee's request for information is involved, the contracting officer shall inform the inquirer that such investigation will be made. Such investigation is required pursuant to the provisions of the Davis-Bacon Act, Contract Work Hours and Safety Standards Act, and Copeland (Anti-Kickback) Act for assuring proper payment to such employees.</P>

              <P>(c) When furnishing a copy of a payment bond and contract in accordance with (FAR) 48 CFR 28.106-6(c), the requirement for a copy of the contract may be satisfied by furnishing a machine-duplicate copy of the contractor's first pages which show the contract number and date, the contractor's name and signature, the contracting officer's signature, and the description of the contract work. The <PRTPAGE P="88"/>contracting officer furnishing the copies shall place the statement “Certified to be a true and correct copy” followed by a signature, title and name of the OE. The fee for furnishing the requested certified copies shall be determined according to the DHS Freedom of Information Act regulation, 6 CFR part 5, subpart B, FOIA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3028.106-70</SECTNO>
              <SUBJECT>Execution and administration of bonds.</SUBJECT>
              <P>(a) The contracting officer shall notify the surety within 30 days, of the contractor's failure to perform in accordance with the terms of the contract.</P>
              <P>(b) When a partnership is a principal on a bond, the names of all the members of the firm shall be listed in the bond following the name of the firm, and the phrase “a partnership composed of.” If a principal is a corporation, the state of incorporation shall also appear on the bond.</P>
              <P>(c) Performance or payment bond(s) other than an annual bond shall not predate the contract to which it pertains.</P>
              <P>(d) Bonds may be filed with the original contract to which they apply, or all bonds can be separately maintained and reviewed quarterly for validity. If separately maintained, each contract file shall cross-reference the applicable bonds.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3028.106-490</SECTNO>
              <SUBJECT>Contract clause (USCG).</SUBJECT>
              <P>For the U.S. Coast Guard, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.228-90. Notification of Miller Act Payment Bond Protection, in solicitation and contracts, and shall require its first-tier subcontractors to insert the clause in all of their subcontracts, when payment bonds are required.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3028.3—Insurance</HD>
            <SECTION>
              <SECTNO>3028.306</SECTNO>
              <SUBJECT>Insurance under fixed-price contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3028.306-90</SECTNO>
              <SUBJECT>Contracts for lease of aircraft (USCG).</SUBJECT>
              <P>(a) For the U.S. Coast Guard, the contracting officer shall insert the clauses at (HSAR) 48 CFR 3052.228-91 through 3052.228-93, unless otherwise indicated by the specific instructions for their use, in any contract for the lease of aircraft (including aircraft used in out-service flight training).</P>
              <P>(b) For the U.S. Coast Guard, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.228-91, Loss of or Damage to Leased Aircraft, in any contract for the lease of aircraft, except in the following circumstances:</P>
              <P>(1) When the hourly rental rate does not exceed $250 and the total rental cost for any single transaction is not in excess of $2,500:</P>
              <P>(2) When the cost of hull insurance does not exceed 10 percent of the contract rate; or</P>
              <P>(3) When the lessor's insurer does not grant a credit for uninsured hours, thereby preventing the lessor from granting the same to the Government.</P>
              <P>(c) For the U.S. Coast Guard, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.228-92, Fair Market Value of Aircraft, when fair market value of the aircraft can be determined.</P>

              <P>(d) 49 U.S.C. 44112, as amended, provides that no lessor of an aircraft under a <E T="03">bona fide</E> lease of 30 days or more shall be liable by reason of his interest as lessor or title-holder of the aircraft for any injury to or death of persons, or damage to or loss of property, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage or loss. On short-term or intermittent-use leases, however, the owner may be liable for damage caused by operation of the aircraft. It is usual for the aircraft owner to retain insurance covering this liability during the term of such lease. Such insurance can, often for little or no increase in premium, be made to cover the Government's exposure to liability as well. In order to take advantage of this coverage, the Risks and Indemnities clause at (HSAR) 48 CFR 3052.228-93 prescribed in paragraph (d)(1) of this section shall be used.</P>

              <P>(1) For the U.S. Coast Guard, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.228-93, Risk and Indemnities, in any contract for out-service flight training or for the lease of aircraft when the Government will <PRTPAGE P="89"/>have exclusive use of the aircraft for a period of less than thirty days.</P>
              <P>(2) For the U.S. Coast Guard, any contract for out-service flight training shall include a clause in the contract schedule stating substantially that the contractor's personnel shall at all times during the course of the training be in command of the aircraft and that at no time shall other personnel be permitted to take command of the aircraft.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3028.307</SECTNO>
              <SUBJECT>Insurance under cost-reimbursement contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3028.307-1</SECTNO>
              <SUBJECT>Group insurance plans.</SUBJECT>
              <P>Plans shall be submitted to the contracting officer, who must obtain the advice of legal counsel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3028.310</SECTNO>
              <SUBJECT>Contract clause for work on a Government installation.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3028.310-70</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70, “Insurance,” in all solicitations and contracts that contain the clause at (FAR) 47 CFR 52.228-5.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3028.311</SECTNO>
              <SUBJECT>Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3028.311-1</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70, “Insurance,” in all solicitations and contracts that contain the clause at (FAR) 48 CFR 52.228-7, unless waived by an official one level above the contracting officer.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="91"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <RESERVED>PART 3029—TAXES [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3030</EAR>
          <HD SOURCE="HED">PART 3030—COST ACCOUNTING STANDARDS ADMINISTRATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3030.2—CAS Program Requirements</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3030.201</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
              <SECTNO>3030.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3030.2—CAS Program Requirements</HD>
            <SECTION>
              <SECTNO>3030.201</SECTNO>
              <SUBJECT>Contract requirements.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3030.201-5</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>(b)(1) The CPO is authorized to waive the application of the Cost Accounting Standards to individual firm fixed-price contracts for the acquisition of commercial items. This authority may not be redelegated.</P>
              <P>(2) Submit waiver requests per (HSAR) 48 CFR 3001.7000(a), for review and transmittal by the CPO to the Cost Accounting Standard Board.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3031</EAR>
          <HD SOURCE="HED">PART 3031—CONTRACT COST PRINCIPLES AND PROCEDURES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3031.2—Contracts with Commercial Organizations</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3031.205</SECTNO>
              <SUBJECT>Selected costs.</SUBJECT>
              <SECTNO>3031.205-32</SECTNO>
              <SUBJECT>Precontract costs.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3031.2—Contracts with Commercial Organizations</HD>
            <SECTION>
              <SECTNO>3031.205</SECTNO>
              <SUBJECT>Selected costs.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3031.205-32</SECTNO>
              <SUBJECT>Precontract costs.</SUBJECT>
              <P>(a) The decision to incur precontract costs is that of the contractor. DHS employees may not can authorize, demand, or require a contractor to incur precontract costs. The contracting officer must advise the prospective contractor that any costs incurred before contract award are incurred at the contractor's sole risk and that if negotiations fail to result in a binding contract, payment of these costs will not be made by the Government. See (HSAR) 48 CFR 3032.205-32(b) regarding exception due to reconciliation of costs.</P>
              <P>(b) When the contracting officer determines that incurring precontract costs was necessary to meet the proposed contract delivery schedule of a cost-reimbursement contract, the clause at (HSAR) 48 CFR 3052.231-70, Precontract Costs, may be inserted in the resultant contract.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3032</EAR>
          <HD SOURCE="HED">PART 3032—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3032.000—Scope of Part</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3032.003</SECTNO>
              <SUBJECT>Simplified acquisition procedures financing.</SUBJECT>
              <SECTNO>3032.006</SECTNO>
              <SUBJECT>Reduction or suspension of contract payments upon finding of fraud.</SUBJECT>
              <SECTNO>3032.006-2</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>3032.006-3</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3032.11—Electronic Funds Transfer</HD>
              <SECTNO>3032.1110</SECTNO>
              <SUBJECT>Solicitation provision and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3032.000—Scope of Part</HD>
            <SECTION>
              <SECTNO>3032.003</SECTNO>
              <SUBJECT>Simplified acquisition procedures financing.</SUBJECT>
              <P>Contract financing may be permitted for purchases made under the authority of (FAR) 48 CFR Part 13. This authority is delegated to COCO and may not be redelegated.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="92"/>
              <SECTNO>3032.006</SECTNO>
              <SUBJECT>Reduction or suspension of contract payments upon finding of fraud.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3032.006-2</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>The CPO is the DHS remedy coordination official (RCO).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3032.006-3</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) The CPO is authorized to establish specific procedures.</P>
              <P>(b) Reports shall be made through the HCA to the CPO.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3032.11—Electronic Funds Transfer</HD>
            <SECTION>
              <SECTNO>3032.1110</SECTNO>
              <SUBJECT>Solicitation provision and contract clauses.</SUBJECT>
              <P>(a)(1) Contracting officer shall insert FAR 48 CFR 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration, in all proposed solicitations and contracts.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3033</EAR>
          <HD SOURCE="HED">PART 3033—PROTESTS, DISPUTES, AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3033.2—Disputes and Appeals</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3033.201</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>3033.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <SECTNO>3033.214</SECTNO>
              <SUBJECT>Alternative disputes resolution (ADR).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3033.2—Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>3033.201</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Agency Board of Contract Appeals</E> means the Department of Transportation Board of Contract Appeals (DOTBCA).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3033.211</SECTNO>
              <SUBJECT>Contracting officer's decision.</SUBJECT>
              <P>For DHS contracts, the Board of Contract Appeals (BCA) noted in (FAR) 48 CFR 33.211 is the Department of Transportation Board of Contract Appeals (DOTBCA) (S-20), 400 7th Street, S.W., Washington, DC, 20590. The DOTBCA Rules of Procedure are contained in 48 CFR Chapter 63, Part 6301. TSA shall use the DOTBCA for only Contract Disputes Act (CDA) requirements.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3033.214</SECTNO>
              <SUBJECT>Alternative dispute resolution (ADR).</SUBJECT>

              <P>(c) The Administrative Dispute Resolution Act (ADRA) of 1996, as amended, 5 U.S.C. 571, <E T="03">et seq.,</E> authorizes and encourages agencies to use mediation, conciliation, arbitration, and other techniques for the prompt and informal resolution of disputes, and for other purposes. The DOTBCA ADR procedures are contained in 48 CFR chapter 63, section 6302.30, ADR Methods (Rule 30), and will be distributed to the parties, if ADR procedures are used. These procedures may be obtained from the DOTBCA upon request. ADR procedures may be used when—</P>
              <P>(1) There is mutual consent by the parties to participate in the ADR process (with consent being obtained either before or after an issue in controversy has arisen);</P>
              <P>(2) Prior to the submission of a claim; and</P>
              <P>(3) In resolution of a formal claim.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3034—MAJOR SYSTEM ACQUISITION [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="93"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 3035</EAR>
          <HD SOURCE="HED">PART 3035—RESEARCH AND DEVELOPMENT CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3035.000—Scope of Part</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3035.003</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3035.000—Scope of Part</HD>
            <SECTION>
              <SECTNO>3035.003</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(b) Cost sharing shall be determined on a case by case basis. OEs may establish procedures for cost sharing.</P>
              <P>(c) Recoupment shall be determined on a case-by-case basis. Recoupment not otherwise required by law should be structured to address factors such as recovering the Department's fair share of its investment in nonrecurring costs related to the items acquired. Advice of legal counsel shall be obtained prior to establishing cost sharing policies and recoupment mechanisms under (FAR) 48 CFR 35.003(b) and (c).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3036</EAR>
          <HD SOURCE="HED">PART 3036—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3036.2—Special Aspects of Contracting for Construction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3036.201</SECTNO>
              <SUBJECT>Evaluation of contractor performance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3036.5—Contract Clauses</HD>
              <SECTNO>3036-570</SECTNO>
              <SUBJECT>Special precautions for work at operating airports.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3036.2—Special Aspects of Contracting for Construction</HD>
            <SECTION>
              <SECTNO>3036.201</SECTNO>
              <SUBJECT>Evaluation of contractor performance.</SUBJECT>
              <P>(a)(2) Performance reports shall be prepared and entered into the Contractor Performance System (CPS) on an annual basis for contracts exceeding one year, or as otherwise required by (FAR) 48 CFR 36.201. Access to reports is through the CPS or the government-wide system, Past Performance Information Retrieval System (PPIRS).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3036.5—Contract Clauses</HD>
            <SECTION>
              <SECTNO>3036.570</SECTNO>
              <SUBJECT>Special precautions for work at operating airports.</SUBJECT>
              <P>Where any acquisition will require work at an operating airport, insert the clause at (HSAR) 48 CFR 3052.236-70, Special Precautions for Work at Operating Airports, in solicitations and contracts.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3037</EAR>
          <HD SOURCE="HED">PART 3037—SERVICE CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3037.1—Service Contracts—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3037.103</SECTNO>
              <SUBJECT>Contracting officer responsibility.</SUBJECT>
              <SECTNO>3037.103-70</SECTNO>
              <SUBJECT>Contractor personnel access application.</SUBJECT>
              <SECTNO>3037.103-71</SECTNO>
              <SUBJECT>Conditional access to sensitive but unclassified information.</SUBJECT>
              <SECTNO>3037.104</SECTNO>
              <SUBJECT>Personal services contracts.</SUBJECT>
              <SECTNO>3037.104-70</SECTNO>
              <SUBJECT>Personal services contracts.</SUBJECT>
              <SECTNO>3037.104-90</SECTNO>
              <SUBJECT>Personal services contracts (USCG).</SUBJECT>
              <SECTNO>3037.104-91</SECTNO>
              <SUBJECT>Personal services with individuals under the authority of 10 U.S.C. 1091 (USCG).</SUBJECT>
              <SECTNO>3037.110-70</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3037.1—Service Contracts—General</HD>
            <SECTION>
              <SECTNO>3037.103</SECTNO>
              <SUBJECT>Contracting officer responsibility.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3037.103-70</SECTNO>
              <SUBJECT>Contractor personnel access application.</SUBJECT>

              <P>Contractor personnel who will require recurring access to DHS facilities as part of contract performances shall complete HSIF Form 3237, Contractor Personnel Access Application, before starting work under the contract. The <PRTPAGE P="94"/>completed form shall be submitted to the appropriate DHS office as designated in the contract. Contractor personnel may be required to complete additional forms, as necessary.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3037.103-71</SECTNO>
              <SUBJECT>Conditional access to sensitive but unclassified information.</SUBJECT>
              <P>Contractor personnel who will require access to sensitive but unclassified information as part of contract performances shall complete HSIF Form 4024, Sensitive Information Non-Disclosure Agreement, before starting work under the contract. The completed form shall be submitted to the appropriate DHS office as designated in the contract. Additional requirements are established in clause (HSAR) 48 CFR 3052.237-71, Information Technology Systems Access for Contractors.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3037.104</SECTNO>
              <SUBJECT>Personal services contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3037.104-70</SECTNO>
              <SUBJECT>Personal services contracts.</SUBJECT>
              <P>(b)(i) Authorization to acquire the personal services of experts and consultants is included in Public Law 107-296, sections 832(1) and (2). This section includes authority to use personal service contracts without regard to the pay limitation of 5 U.S.C. 3109 when the services are necessary due to an urgent homeland security need.</P>
              <P>(A) Prepare each D&amp;F in accordance with (FAR) 48 CFR 1.7 and include a determination that—</P>
              <P>(1) The duties are of a temporary or intermittent nature and not to exceed one year;</P>
              <P>(2) DHS personnel with necessary skills are not available;</P>
              <P>(3) Excepted appointment cannot be obtained;</P>
              <P>(4) A nonpersonal services contract is not practicable;</P>
              <P>(5) Statutory authority, Public Law 107-297, section 832(1) or section 832(2) and other legislation, apply;</P>
              <P>(6) If the pay limitation of 5 U.S.C. 3109 is exceeded, the D&amp;F supports the rationale; and</P>
              <P>(7) Any other determination required by statues has been made.</P>
              <P>(B)(1) Except as provided in paragraph (b)(i)(B)(2) of this subsection, the COCO shall approve the D&amp;F required by paragraph (b)(i)(A).</P>
              <P>(2) The HCA shall approve the D&amp;F for personal service contracts for experts and consultant services that are acquired without regard to the pay limitation of 5 U.S.C. 3109. This determination shall include a finding that the services are necessary due to urgent homeland security needs.</P>
              <P>(i) The contract may provide for the same per diem and travel expenses authorized for a Government employee, including actual transportation and per diem in lieu of subsistence for travel between home or place of business and official duty station and only for travel outside the local area in support of the statement of work.</P>
              <P>(ii) Coordinate benefits, taxes, personnel ceilings, and maintenance of records with the appropriate office(s).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3037.104-90</SECTNO>
              <SUBJECT>Personal services contracts (USCG).</SUBJECT>
              <P>(a) The U.S. Coast Guard HCA may enter into medical personal services contracts according to 10 U.S.C. 1091.</P>
              <P>(b) The authority of 10 U.S.C. 1091(a)(2) expires December 31, 2003.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3037.104-91</SECTNO>
              <SUBJECT>Personal services contracts with individuals under the authority of 10 U.S.C. 1091 (USCG).</SUBJECT>
              <P>(a) Health care personal services contracts awarded to individuals shall be selected through procedures established in this section. Selections made using the procedures in this section are exempt by statute from (HSAR) 48 CFR part 3006 competition requirements (see (HSAR) 48 CFR 3006.9000 (USCG)) and from (FAR) 48 CFR Part 6 competition requirements.</P>

              <P>(b) The contracting officer shall provide adequate advance notice of contracting opportunities to individuals residing in the area of the facility. The notice should include the qualification criteria against which individuals responding shall be evaluated. Contracting officers shall solicit offerors through the most effective means of seeking competition, such as a local publication, which serves the area of the facility. Acquisitions of health care services using personal services contracts are exempt from posting and synopsis requirements of (FAR) 48 CFR Part 5.<PRTPAGE P="95"/>
              </P>
              <P>(c) The contracting officer shall provide the qualifications of individuals responding to the notice to the representative(s) responsible for evaluation and ranking according to the evaluation procedures. Individuals shall be considered solely on the professional qualifications established for the particular health care services being acquired and the Government's estimate of reasonable rates, fees, or costs. The representative(s) responsible for the evaluation and ranking shall provide the contracting officer with rationale for the ranking of the individuals consistent with the required qualifications.</P>
              <P>(d) Upon receipt of the ranked listing of offerors, the contracting officer shall either:</P>
              <P>(1) Enter into negotiations with the highest ranked offeror. If a mutually satisfactory contract cannot be negotiated, the contracting officer shall terminate negotiations with the highest ranked offeror and enter into negotiations with the next highest, or;</P>
              <P>(2) Enter into negotiations with all qualified offerors and select on the basis of qualifications and rates, fees, or other costs.</P>
              <P>(e) In the event only one individual responds to an advertised requirement, the contracting officer is authorized to negotiate the contract award. In this case, the individual must still meet the minimum qualifications of the requirement and the contracting officer must be able to make a determination that the price is fair and reasonable.</P>
              <P>(f) If a fair and reasonable price cannot be obtained from a qualified individual, the requirement should be canceled and acquired using procedures other than those set forth in this section.</P>
              <P>(g) The total amount paid to an individual in any year for health care services under a personal services contract shall not exceed the paycap in COMDTINST M4200.19 (series), Coast Guard Acquisition Procedures.</P>
              <P>(h) The contract may provide for the same per diem and travel expenses authorized for a Government employee, including actual transportation and per diem in lieu of subsistence for travel between home or place of business and official duty station and only for travel outside the local area in support of the statement of work.</P>
              <P>(i) Coordinate benefits, taxes and maintenance of records with the appropriate office(s).</P>
              <P>(j) The contracting officer shall insure that contract funds are sufficient to cover all contingency items that may be cited in the statement of work for health care services.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3037.110-70</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) Contracting officers shall insert the clause at (HSAR) 48 CFR 3052.237-70, Qualifications of Contractor Employees, in all solicitations and contracts for services, which require contract employees to have recurring access to Government facilities, sensitive information, including proprietary data or resources. This may include Information Technology (IT) requirements for design, development, or operation and maintenance of sensitive application in non-DHS or DHS facilities.</P>
              <P>(b) In addition to the (HSAR) clause 48 CFR 3052.237-70, the contracting officer shall also include the contract clauses, (HSAR) clause 48 CFR 3052.237-71, “Information Systems Access for Contractors” and (HSAR) clause 48 CFR 3052.237-72, “Contractor Personnel Screening for Unclassified Information Technology”</P>
              <P>(c) The contracting officer shall also include (HSAR) clause 48 CFR 3052.204-70, “Information Technology Security Plan” in solicitations and contracts when the prescription at paragraph (a) above applies.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3038—FEDERAL SUPPLY SCHEDULE CONTRACTING [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3039—ACQUISITION OF INFORMATION TECHNOLOGY [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3040 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3041—ACQUISITION OF UTILITY SERVICES [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="97"/>
        <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        <PART>
          <EAR>Pt. 3042</EAR>
          <HD SOURCE="HED">PART 3042—CONTRACT ADMINISTRATION AND AUDIT SERVICES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3042.2—Contract Administration Services</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3042.202</SECTNO>
              <SUBJECT>Assignment of contract administration.</SUBJECT>
              <SECTNO>3042.202-70</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3042.15—Contractor Performance Information</HD>
              <SECTNO>3042.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3042.70—Contracting Officer's Technical Representative</HD>
              <SECTNO>3042.7000</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3042.2—Contract Administration Services</HD>
            <SECTION>
              <SECTNO>3042.202</SECTNO>
              <SUBJECT>Assignment of contract administration.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3042.202-70</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) The contracting officer may use the clause at (HSAR) 48 CFR 3052.242-70, Dissemination of Information—Educational Institutions, in lieu of the clause at (HSAR) 48 CFR 3052.242-71, Dissemination of Contract Information, in DHS research contracts with educational institutions, except contracts that require the release or coordination of information.</P>
              <P>(b) The contracting officer may insert the clause at (HSAR) 48 CFR 3052.242-71, Dissemination of Contract Information, in all DHS contracts except contracts that require the release or coordination of information.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3042.15—Contractor Performance Information</HD>
            <SECTION>
              <SECTNO>3042.1502</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) OEs shall use the Contractor Performance System (CPS) for evaluating contractor performance in accordance with (FAR) 48 CFR 42.1502 and part 1503.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3042.70—Contracting Officer's Technical Representative</HD>
            <SECTION>
              <SECTNO>3042.7000</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.242-72, Contracting Officer's Technical Representative, in solicitations and contracts when it is intended that a representative will be assigned to the contract to perform functions of a technical nature.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3043—CONTRACT MODIFICATIONS [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3044—SUBCONTRACTING POLICIES AND PROCEDURES [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 3045</EAR>
          <HD SOURCE="HED">PART 3045—GOVERNMENT PROPERTY</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3045.5—Management of Government Property in the Possession of Contractors</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3045.505</SECTNO>
              <SUBJECT>Records and reports of Government property.</SUBJECT>
              <SECTNO>3045.505-14</SECTNO>
              <SUBJECT>Reports of Government property.</SUBJECT>
              <SECTNO>3045.505-70</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <SECTNO>3045.508</SECTNO>
              <SUBJECT>Physical inventories.</SUBJECT>
              <SECTNO>3045.508-2</SECTNO>
              <SUBJECT>Reporting results of inventories.</SUBJECT>
              <SECTNO>3045.508-3</SECTNO>
              <SUBJECT>Quantitative and monetary control.</SUBJECT>
              <SECTNO>3045.511</SECTNO>
              <SUBJECT>Audit of property control system.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3045.5—Management of Government Property in the Possession of Contractors</HD>
            <SECTION>
              <SECTNO>3045.505</SECTNO>
              <SUBJECT>Records and reports of Government property.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3045.505-14</SECTNO>
              <SUBJECT>Reports of Government property.</SUBJECT>

              <P>(a) When Government property is furnished to or acquired by the contractor to perform the contract, the contract shall require the contractor to submit <PRTPAGE P="98"/>annual reports (see (FAR) 48 CFR 45.505-14) to the contracting officer not later than September 15 of each year. The contractor's report shall be submitted on DHS Form 0700-05, Contractor Report of Government Property.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3045.505-70</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>Contracting officers shall insert the clause at (HSAR) 48 CFR 3052.245-70 in solicitations and contracts when the contract will require Government provided or contractor acquired property.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3045.508</SECTNO>
              <SUBJECT>Physical inventories.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3045.508-2</SECTNO>
              <SUBJECT>Reporting results of inventories.</SUBJECT>
              <P>The inventory report shall also include the following:</P>
              <P>(a) Name and title of the individual(s) that performed the physical inventory;</P>
              <P>(b) An itemized, categorized listing of all property capitalized:</P>
              <P>(1) Land and rights therein;</P>
              <P>(2) Other real property;</P>
              <P>(3) Plant equipment;</P>
              <P>(4) Special test equipment; and</P>
              <P>(5) Special tooling;</P>
              <P>(c) An itemized listing of the property lost, damaged, destroyed, or stolen, the circumstances surrounding each incident, and the resolution of the incident; and</P>
              <P>(d) Any discrepancies between the physical inventory and the contractor's record of Government property.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3045.508-3</SECTNO>
              <SUBJECT>Quantitative and monetary control.</SUBJECT>
              <P>Contracting officers shall require the contractor to provide the quantity and unit cost of each item of Government property reported under (HSAR) 48 CFR 3045.508-2(b) and (c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3045.511</SECTNO>
              <SUBJECT>Audit of property control system.</SUBJECT>
              <P>(a) The property administrator (or other Government official authorized by the contracting officer) shall audit the contractor's property control system whenever there are indications that the contractor's property control system may be deficient. Examples of deficiencies are:</P>
              <P>(1) Failure of the contractor to acknowledge receipt of GFP;</P>
              <P>(2) Failure of the contractor to submit the annual property reports required by (HSAR) 48 CFR 3045.505-14;</P>
              <P>(3) Failure of the contractor to reconcile its physical inventory with its property control record; or</P>
              <P>(4) Failure of the contractor to submit a Government property listing when requested by the property administrator.</P>
              <P>(b) When it is determined that the contractor's property control system is deficient, the property administrator, in coordination with the contracting officer, shall discuss the deficiencies with the contractor. If the contractor does not take action to correct the deficiencies, the contracting officer shall provide the contractor with a written notice of the deficiencies and the date all deficiencies shall be corrected.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3046</EAR>
          <HD SOURCE="HED">PART 3046—QUALITY ASSURANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3046.7—Warranties</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3046.702</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3046.702-70</SECTNO>
              <SUBJECT>Additional definitions.</SUBJECT>
              <SECTNO>3046.703</SECTNO>
              <SUBJECT>Criteria for use of warranties.</SUBJECT>
              <SECTNO>3046.705</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <SECTNO>3046.706</SECTNO>
              <SUBJECT>Warranty terms and conditions.</SUBJECT>
              <SECTNO>3046.790</SECTNO>
              <SUBJECT>Additional USCG definitions (USCG).</SUBJECT>
              <SECTNO>3046.791</SECTNO>
              <SUBJECT>Use of warranties in major systems acquisitions by the USCG (USCG).</SUBJECT>
              <SECTNO>3046.791-1</SECTNO>
              <SUBJECT>Policy (USCG).</SUBJECT>
              <SECTNO>3046.791-2</SECTNO>
              <SUBJECT>Tailoring warranty terms and conditions. (USCG).</SUBJECT>
              <SECTNO>3046.791-3</SECTNO>
              <SUBJECT>Warranties on Government-furnished property (USCG).</SUBJECT>
              <SECTNO>3046.792</SECTNO>
              <SUBJECT>Cost benefit analysis (USCG).</SUBJECT>
              <SECTNO>3046.793</SECTNO>
              <SUBJECT>Waiver and notification procedures (USCG).</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3046.7—Warranties</HD>
            <SECTION>
              <SECTNO>3046.702</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3046.702-70</SECTNO>
              <SUBJECT>Additional definitions.</SUBJECT>
              <P>
                <E T="03">At no additional cost to the Government,</E> means without an increase in price for firm-fixed-price contracts, without an increase in target or ceiling price for fixed price incentive contracts (see (FAR) 48 CFR 46.707), or without <PRTPAGE P="99"/>an increase in estimated cost or fee for cost-reimbursement contracts.</P>
              <P>
                <E T="03">Defect</E> means any condition or characteristic in any supplies or services furnished by the contractor under the contract that is not in compliance with the requirements of the contract.</P>
              <P>
                <E T="03">Design and manufacturing requirements</E> means structural and engineering plans and manufacturing particulars, including precise measurements, tolerances, materials and finished product tests for the major system being produced.</P>
              <P>
                <E T="03">Major system</E> means a system or major subsystem used directly by the Department of Homeland Security (DHS) to carry out its mission(s), as defined by HSAM Chapter 1234, Major Acquisition Policies and Procedures (for dollar threshold applicable to U.S. Coast Guard, See Coast Guard guidance at (HSAR) 48 CFR 3046.701-90). The term does not include:</P>
              <P>(1) Related support equipment, such as ground-handling equipment, training devices and accessories thereto, unless a cost effective warranty for the system would require inclusion of such items; or</P>
              <P>(2) Commercial items sold in substantial quantities to the general public as described in (FAR) 48 CFR part 2.</P>
              <P>
                <E T="03">Performance requirements</E> means the operating capabilities, maintenance, and reliability characteristics of a system that are determined to be necessary for it to fulfill the requirement for which the system is designed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.703</SECTNO>
              <SUBJECT>Criteria for use of warranties.</SUBJECT>
              <P>(a) <E T="03">Major Systems.</E> The use of warranties in the procurement of major systems by the USCG is mandatory, unless waived (see USCG guidance at (HSAR) 48 CFR 3046.792). Other OEs may use the procedures in USCG guidance in this part as a guideline for major systems acquisitions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.705</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>(a) The following restrictions are applicable to DHS contracts:</P>
              <P>(1) The USCG is required to include a warranty in cost reimbursement contracts for the production of major systems acquisitions.</P>
              <P>(2) Any warranty on major system acquisitions shall not apply in the case of any system or component thereof which has been furnished by the Government to a contractor except as indicated in the USCG guidance at (HSAR) 48 CFR 3046.791-3.</P>
              <P>(3) Any warranty obtained shall specifically exclude coverage of damage in time of war or national emergency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.706</SECTNO>
              <SUBJECT>Warranty terms and conditions.</SUBJECT>
              <P>(a) The contracting officer, in developing the warranty terms and conditions, shall consider the following, and, where appropriate and cost beneficial, shall:</P>
              <P>(1) Identify the affected line item(s) and the applicable specification(s);</P>
              <P>(2) Require that the line item's design and manufacture will conform to:</P>
              <P>(i) An identified revision of a top-level drawing; and/or</P>
              <P>(ii) An identified specification or revision thereof;</P>
              <P>(3) Require that the system conform to the specified Government performance requirements;</P>
              <P>(4) Require that all systems and components delivered under the contract will be free from defects in materials and workmanship;</P>
              <P>(5) State that in the event of failure due to nonconformance with specification and/or defects in material and workmanship, the contractor will bear the cost of all work necessary to achieve the specified performance requirements, including repair and/or replacement of all parts;</P>
              <P>(6) Require the timely replacement/repair of warranted items and specify lead times for replacement/repair where possible;</P>
              <P>(7) Identify the specific paragraphs containing Government performance requirements which must be met;</P>
              <P>(8) Ensure that any performance requirements identified as goals or objectives in excess of specification requirements are excluded from the warranty provision;</P>

              <P>(9) Define what constitutes the start of the warranty period (<E T="03">e.g.,</E> delivery, acceptance, in-service date), the ending of the warranty (<E T="03">e.g.,</E> passing a test or demonstration, or operation without failure for a specified time period), and circumstances requiring an extension of warranty duration (<E T="03">e.g.,</E> extending <PRTPAGE P="100"/>the warranty period as a result of mass defect correction during warranty period);</P>
              <P>(10) Identify what transportation costs will be paid by the contractor in conjunction with warranty coverage;</P>
              <P>(11) Identify any conditions which will not be covered by the warranty, other than the exclusion of combat damage; and</P>
              <P>(12) Identify any limitation on the total dollar amount of the contractor's warranty exposure, or agreement to share costs after a certain dollar threshold to avoid unnecessary warranty returns.</P>
              <P>(b) Any contract that contains a warranty clause shall contain warranty implementation procedures, including warranty notification content and procedures, and identify the individuals responsible for implementation of warranty provisions. The contract may also permit the contractor's participation in investigation of system failures, providing that the contractor is reimbursed at established rates for fault isolation work, and that the Government receives credit for any payments where equipment failure is covered by warranty provisions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.790</SECTNO>
              <SUBJECT>Additional USCG definitions (USCG).</SUBJECT>
              <P>For the USCG, in accordance with Public Law 99-190, the dollar threshold as it pertains to the inclusion of a warranty in major systems acquisitions is $10 million.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.791</SECTNO>
              <SUBJECT>Use of warranties in major systems acquisitions by the USCG (USCG).</SUBJECT>
              <P>This subpart provides the policy for the USCG to use in obtaining warranties from contractors when contracting for the acquisition of a major system.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.791-1</SECTNO>
              <SUBJECT>Policy (USCG).</SUBJECT>
              <P>The USCG shall include a warranty in all contracts for major systems acquisitions. When drafting warranty provisions/clauses for major systems acquisitions, the contracting officer shall ensure that the items listed at (HSAR) 48 CFR 3046.706 have been considered. The warranty shall also meet the following requirements:</P>
              <P>(a) For systems or components which are commercially available, such warranty as is normally provided by the manufacturer or supplier shall be obtained in accordance with (FAR) 48 CFR 46.703(d) and (FAR) 48 CFR 46.710(b)(2).</P>
              <P>(b) For systems or components provided in accordance with either design and manufacturing or performance requirements as specified in the contract or any modification to that contract, a warranty of compliance with the stated requirements shall be obtained.</P>
              <P>(c) The warranty provided under paragraph (b) of this section shall provide that in the event the major system or any component thereof fails to meet the terms of the warranty provided, the contracting officer may:</P>
              <P>(1) Require the contractor to promptly take such corrective action as the contracting officer determines to be necessary at no additional cost to the Government, including repairing or replacing all parts necessary to achieve the requirements set forth in the contract;</P>
              <P>(2) Require the contractor to pay costs reasonably incurred by the United States in taking necessary corrective action; or</P>
              <P>(3) Equitably reduce the contract price.</P>
              <P>(d) Any warranty shall specifically exclude coverage of combat damage.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.791-2</SECTNO>
              <SUBJECT>Tailoring warranty terms and conditions (USCG).</SUBJECT>
              <P>(a) As the objectives and circumstances vary considerably among major systems acquisition programs, contracting officers shall appropriately tailor the warranty on a case-by-case basis, including remedies, exclusions, limitations and durations, provided the tailoring is consistent with the specific requirements of this subpart and (FAR) 48 CFR 46.706.</P>

              <P>(b) Contracting officers of major systems acquisitions may exclude from the terms of the warranty certain defects for specified supplies (exclusions) and may limit the contractor's liability under the terms of the warranty (limitations), as appropriate, if necessary to derive a cost-effective warranty in light of the technical risk, <PRTPAGE P="101"/>contractor financial risk, or other program uncertainties.</P>

              <P>(c) Contracting officers are encouraged to structure a broader and more comprehensive warranty where such is advantageous. Likewise, the contracting officer may narrow the scope of a warranty when appropriate (<E T="03">e.g.,</E> where it would be inequitable to require a warranty of all performance requirements because a contractor had not designed the system).</P>
              <P>(d) Contracting officers shall not include in a warranty clause any terms that require the contractor to incur liability for loss, damage, or injury to third parties.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.791-3</SECTNO>
              <SUBJECT>Warranties on Government-furnished property (USCG).</SUBJECT>
              <P>A contractor for a major systems acquisition shall not be required to provide the warranties specified in (HSAR) 48 CFR 3046.790-1 on any property furnished to that contractor by the Government except for:</P>
              <P>(a) Defects in installation; and</P>
              <P>(b) Installation or modification in such a manner that invalidates a warranty provided by the manufacturer of the property.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.792</SECTNO>
              <SUBJECT>Cost benefit analysis (USCG).</SUBJECT>
              <P>If a specific warranty is considered not to be cost beneficial by the contracting officer, a waiver request shall be initiated in accordance with guidance at (HSAR) 48 CFR 3046.793.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3046.793</SECTNO>
              <SUBJECT>Waiver and notification procedures (USCG).</SUBJECT>
              <P>(a) The Secretary of Homeland Security, without delegation, may waive the requirement for a warranty for USCG major system acquisitions when the waiver is in the interest of national defense or if the warranty obtained would not be cost beneficial. A waiver may be granted provided that the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Commerce, Science and Transportation of the Senate, and the Committee on Merchant Marine and Fisheries of the House of Representatives are notified, in writing, of the Secretary's intention to waive the warranty requirements and the reasons supporting such a determination prior to granting the waiver. The request for Secretarial waiver shall include, as a minimum:</P>

              <P>(1) A brief description of the major system and its stage of production (<E T="03">e.g.,</E> the number of units delivered and anticipated to be delivered during the life of the program);</P>
              <P>(2) The specific waiver requested, the duration of the waiver if it is to involve more than one contract, and the rationale for the waiver; and</P>
              <P>(3) All documentation supporting the request for waiver, such as a cost-benefit analysis.</P>
              <P>(b) The waiver request shall be forwarded to the Secretary, via the CPO. The USCG shall maintain a written record of each waiver granted and the Congressional notification and report made, together with supporting documentation.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3047</EAR>
          <HD SOURCE="HED">PART 3047—TRANSPORTATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3047.3—Transportation in Supply Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3047.305</SECTNO>
              <SUBJECT>Solicitation provisions, contract clauses, and transportation factors.</SUBJECT>
              <SECTNO>3047.305-70</SECTNO>
              <SUBJECT>Solicitation provision.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3047.3—Transportation in Supply Contracts</HD>
            <SECTION>
              <SECTNO>3047.305</SECTNO>
              <SUBJECT>Solicitation provisions, contract clauses, and transportation factors.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3047.305-70</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <P>The contracting officer shall insert the following provisions in solicitations, as applicable:</P>
              <P>(a) (HSAR) 48 CFR 3052.247-70, F.o.b. Origin Information, with Alternates I or II, as applicable, shall be inserted in accordance with (FAR) 48 CFR 47.305-3(b);</P>
              <P>(b) (HSAR) 48 CFR 3052.247-71, F.o.b. Origin Only, shall be inserted in accordance with (FAR) 48 CFR 47.305-3(e); and</P>

              <P>(c) (HSAR) 48 CFR 3052.247-72, F.o.b. Destination Only, shall be inserted in <PRTPAGE P="102"/>accordance with (FAR) 48 CFR 47.305-4(b).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3048—VALUE ENGINEERING [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3049—TERMINATION OF CONTRACTS [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3050—EXTRAORDINARY CONTRACTUAL ACTIONS [RESERVED]</RESERVED>
        </PART>
        <PART>
          <RESERVED>PART 3051—USE OF GOVERNMENT SOURCES BY CONTRACTORS [RESERVED]</RESERVED>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="103"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        <PART>
          <EAR>Pt. 3052</EAR>
          <HD SOURCE="HED">PART 3052—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3052.1—Instructions for Using Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3052.101</SECTNO>
              <SUBJECT>Using part 3052.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3052.2—Texts of Provisions and Clauses</HD>
              <SECTNO>3052.204-70</SECTNO>
              <SUBJECT>Security requirements for unclassified information technology resources.</SUBJECT>
              <SECTNO>3052.209-70</SECTNO>
              <SUBJECT>Prohibition on contracts with corporate expatriates.</SUBJECT>
              <SECTNO>3052.209-71</SECTNO>
              <SUBJECT>Reserve Officer Training Corps and military recruiting on campus.</SUBJECT>
              <SECTNO>3052.209-72</SECTNO>
              <SUBJECT>Disclosure of conflicts of interest.</SUBJECT>
              <SECTNO>3052.211-70</SECTNO>
              <SUBJECT>Index for specifications.</SUBJECT>
              <SECTNO>3052.211-90</SECTNO>
              <SUBJECT>Bar coding requirement (USCG).</SUBJECT>
              <SECTNO>3052.213-90</SECTNO>
              <SUBJECT>Evaluation factor for Coast Guard performance of bar coding requirement (USCG).</SUBJECT>
              <SECTNO>3052.215-70</SECTNO>
              <SUBJECT>Key personnel or facilities.</SUBJECT>
              <SECTNO>3052.216-70</SECTNO>
              <SUBJECT>Evaluation of offers subject to an economic price adjustment clause.</SUBJECT>
              <SECTNO>3052.216-71</SECTNO>
              <SUBJECT>Determination of award fee.</SUBJECT>
              <SECTNO>3052.216-72</SECTNO>
              <SUBJECT>Performance evaluation plan.</SUBJECT>
              <SECTNO>3052.216-73</SECTNO>
              <SUBJECT>Distribution of award fee.</SUBJECT>
              <SECTNO>3052.216-74</SECTNO>
              <SUBJECT>Settlement of letter contract.</SUBJECT>
              <SECTNO>3052.217-90</SECTNO>
              <SUBJECT>Delivery and shifting of vessel (USCG).</SUBJECT>
              <SECTNO>3052.217-91</SECTNO>
              <SUBJECT>Performance (USCG).</SUBJECT>
              <SECTNO>3052.217-92</SECTNO>
              <SUBJECT>Inspection and manner of doing work (USCG).</SUBJECT>
              <SECTNO>3052.217-93</SECTNO>
              <SUBJECT>Subcontracts (USCG).</SUBJECT>
              <SECTNO>3052.217-94</SECTNO>
              <SUBJECT>Lay days (USCG).</SUBJECT>
              <SECTNO>3052.217-95</SECTNO>
              <SUBJECT>Liability and insurance (USCG).</SUBJECT>
              <SECTNO>3052.217-96</SECTNO>
              <SUBJECT>Title (USCG).</SUBJECT>
              <SECTNO>3052.217-97</SECTNO>
              <SUBJECT>Discharge of liens (USCG).</SUBJECT>
              <SECTNO>3052.217-98</SECTNO>
              <SUBJECT>Delays (USCG).</SUBJECT>
              <SECTNO>3052.217-99</SECTNO>
              <SUBJECT>Department of Labor safety and health regulations for ship repair (USCG).</SUBJECT>
              <SECTNO>3052.217-100</SECTNO>
              <SUBJECT>Guarantee (USCG).</SUBJECT>
              <SECTNO>3052.219-70</SECTNO>
              <SUBJECT>Small business subcontracting program reporting.</SUBJECT>
              <SECTNO>3052.219-71</SECTNO>
              <SUBJECT>DHS mentor-protégé program.</SUBJECT>
              <SECTNO>3052.219-72</SECTNO>
              <SUBJECT>Evaluation of prime contractor participation in the DHS mentor-protégé program.</SUBJECT>
              <SECTNO>3052.222-70</SECTNO>
              <SUBJECT>Strikes or picketing affecting timely completion of the contract work.</SUBJECT>
              <SECTNO>3052.222-71</SECTNO>
              <SUBJECT>Strikes or picketing affecting access to a DHS facility.</SUBJECT>
              <SECTNO>3052.222-90</SECTNO>
              <SUBJECT>Local hire (USCG).</SUBJECT>
              <SECTNO>3052.223-70</SECTNO>
              <SUBJECT>Removal or disposal of hazardous substances—applicable licenses and permits.</SUBJECT>
              <SECTNO>3052.223-90</SECTNO>
              <SUBJECT>Accident and fire reporting (USCG).</SUBJECT>
              <SECTNO>3052.228-70</SECTNO>
              <SUBJECT>Insurance.</SUBJECT>
              <SECTNO>3052.228-90</SECTNO>
              <SUBJECT>Notification of Miller Act payment bond protection (USCG).</SUBJECT>
              <SECTNO>3052.228-91</SECTNO>
              <SUBJECT>Loss of or damage to leased aircraft (USCG).</SUBJECT>
              <SECTNO>3052.228-92</SECTNO>
              <SUBJECT>Fair Market value of aircraft (USCG).</SUBJECT>
              <SECTNO>3052.228-93</SECTNO>
              <SUBJECT>Risk and indemnities (USCG).</SUBJECT>
              <SECTNO>3052.231-70</SECTNO>
              <SUBJECT>Precontract costs.</SUBJECT>
              <SECTNO>3052.236-70</SECTNO>
              <SUBJECT>Special provisions for work at operating airports.</SUBJECT>
              <SECTNO>3052.237-70</SECTNO>
              <SUBJECT>Qualifications of contractor employees.</SUBJECT>
              <SECTNO>3052.237-71</SECTNO>
              <SUBJECT>Information technology systems access for contractors.</SUBJECT>
              <SECTNO>3052.237-72</SECTNO>
              <SUBJECT>Contractor personnel screening for unclassified information technology access.</SUBJECT>
              <SECTNO>3052.242.70</SECTNO>
              <SUBJECT>Dissemination of information—educational institutions.</SUBJECT>
              <SECTNO>3052.242-71</SECTNO>
              <SUBJECT>Dissemination of contract information.</SUBJECT>
              <SECTNO>3052.242-72</SECTNO>
              <SUBJECT>Contracting officer's technical representative.</SUBJECT>
              <SECTNO>3052.245-70</SECTNO>
              <SUBJECT>Government property reports.</SUBJECT>
              <SECTNO>3052.247-70</SECTNO>
              <SUBJECT>F.o.b. origin information.</SUBJECT>
              <SECTNO>3052.247-71</SECTNO>
              <SUBJECT>F.o.b. origin only.</SUBJECT>
              <SECTNO>3052.247-72</SECTNO>
              <SUBJECT>F.o.b. destination only.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3052.1—Instructions for Using Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>3052.101</SECTNO>
              <SUBJECT>Using part 3052.</SUBJECT>
              <P>(b) Numbering.</P>
              <P>(2)(i) Provisions or clauses that supplement the FAR.</P>

              <P>(A) Agency-prescribed provisions and clauses permitted by HSAR and used on a standard basis (<E T="03">i.e.,</E> normally used in two or more solicitations or contracts regardless of contract type) shall be prescribed and contained in the HSAR. OEs desiring to use a provision or a clause on a standard basis shall submit a request containing a copy of the clause(s), justification for its use, and evidence of legal counsel review to the CPO in accordance with (HSAR) 48 CFR 3001.304 for possible inclusion in the HSAR.<PRTPAGE P="104"/>
              </P>
              <P>(B) Provisions and clauses used on a one-time basis (<E T="03">i.e.,</E> non-standard provisions and clauses) may be approved by the contracting officer, unless a higher level is designated by the OE. This authority is subject to:</P>
              <P>(<E T="03">1</E>) Evidence of legal counsel review in the contract file;</P>
              <P>(<E T="03">2</E>) Inserting these clauses in the appropriate sections of the uniform contract format; and</P>
              <P>(<E T="03">3</E>) Ensuring the provisions and clauses do not deviate from the requirements of the FAR and HSAR.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3052.2—Text of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>3052.204-70</SECTNO>
              <SUBJECT>Security requirements for unclassified information—technology resources.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3004.470-4 Contract clauses, and (HSAR) 48 CFR 3037.110-70 (a) and (b), insert a clause substantially the same as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Security Requirements for Unclassified Information Technology Resources (DED 2003)</HD>
                <P>(a) The Contractor shall be responsible for Information Technology (IT) security for all systems connected to a DHS network or operated by the Contractor for DHS, regardless of location. This clause applies to all or any part of the contract that includes information technology resources or services for which the Contractor must have physical or electronic access to sensitive information contained in DHS unclassified systems that directly support the agency's mission. The security requirements include, but are not limited to, how the Department of Homeland Security's sensitive information is to be handled and protected at the Contractor's site, (including any information stored, processed, or transmitted using the Contractor's computer systems), the background investigation and/or clearances required, and the facility security required. This requirement includes information technology, hardware, software, and the management, operation, maintenance, programming, and system administration of computer systems, networks, and telecommunications systems. Examples of tasks that require security provisions include—</P>
                <P>(1) Acquisition, transmission or analysis of data owned by DHS with significant replacement cost should the contractor's copy be corrupted; and</P>

                <P>(2) Access to DHS networks or computers at a level beyond that granted the general public, (<E T="03">e.g.</E> such as bypassing a firewall).</P>
                <P>(b) At the expiration of the contract, the contractor shall return all sensitive DHS information and IT resources provided to the contractor during the contract, and a certification that all DHS information has been purged from any contractor-owned system used to process DHS information. Organizational elements shall conduct reviews to ensure that the security requirements in the contract are implemented and enforced.</P>

                <P>(c) The Contractor shall provide, implement, and maintain an IT Security Plan. This plan shall describe the processes and procedures that will be followed to ensure appropriate security of IT resources that are developed, processed, or used under this contract. The plan shall describe those parts of the contract to which this clause applies. The Contractor's IT Security Plan shall be compliant with Federal laws that include, but are not limited to, the Computer Security Act of 1987 (40 U.S.C. 1441 <E T="03">et seq.</E>), and the Government Information Security Reform Act of 2000, and the Federal Information Security Management Act of 2002. The plan shall meet IT security requirements in accordance with Federal policies and procedures that include, but are not limited to OMB Circular A-130, Management of Federal Information Resources, Appendix III, and Security of Federal Automated Information Resources;</P>
                <P>(d) Within__days after contract award, the contractor shall submit for approval an IT Security Plan. This plan shall be consistent with and further detail the approach contained in the offeror's proposal or quote that resulted in the award of this contract and in compliance with the requirements stated in this clause. The plan, as approved by the Contracting Officer, shall be incorporated into the contract as a compliance document.</P>

                <P>(e) Within 6 months after contract award, the contractor shall submit written proof of IT Security accreditation to DHS for approval by the DHS Contracting Officer. Accreditation will be according to the criteria of the Homeland Security Information Technology Security program Publication, DHS MD 4300.Pub., Volume I, Policy Guide, Part A, Sensitive Systems, which is available from the Contracting Officer upon request. This accreditation will include a final security plan, risk assessment, security test and evaluation, and disaster recovery plan/continuity of operations plan. This accreditation, when accepted by the Contracting Officer, shall be incorporated into the contract as a compliance document, and shall include a final security plan, a risk assessment, security test and evaluation, and disaster recovery/continuity of operations plan. The <PRTPAGE P="105"/>contractor shall comply with the approved accreditation documentation.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.209-70</SECTNO>
              <SUBJECT>Prohibition on contracts with corporate expatriates.</SUBJECT>
              <P>As prescribed at (HSAR) 48 CFR 3009.104-75, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Prohibition on Contracts With Corporate Expatriates (DEC 2003)</HD>
                <P>(a) Prohibitions.</P>
                <P>Section 835 of Public Law 107-296, prohibits the Department of Homeland Security from entering into any contract with a foreign incorporated entity after November 25, 2002, which is treated as an inverted domestic corporation as defined in this clause.</P>
                <P>The Secretary shall waive the prohibition with respect to any specific contract if the Secretary determines that the waiver is required in the interest of homeland security, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.</P>
                <P>(b) Definitions. As used in this clause:</P>
                <P>
                  <E T="03">Expanded Affiliated Group</E> means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting `more than 50 percent' for `at least 80 percent' each place it appears.</P>
                <P>
                  <E T="03">Foreign Incorporated Entity</E> means any entity which is, or but for subsection (b) of section 835 of the Homeland Security Act, Public Law 107-296, would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.</P>
                <P>
                  <E T="03">Inverted Domestic Corporation.</E> A foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—</P>
                <P>(1) The entity completes after November 25, 2002, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;</P>
                <P>(2) After the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—</P>
                <P>(i) In the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or</P>
                <P>(ii) In the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and</P>
                <P>(3) The expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.</P>
                <P>
                  <E T="03">Person, domestic, and foreign</E> have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.</P>
                <P>(c) Special rules. The following definitions and special rules shall apply when determining whether a foreign incorporated entity should be treated as an inverted domestic corporation.</P>
                <P>(1) <E T="03">Certain stock disregarded.</E> For the purpose of treating a foreign incorporated entity as an inverted domestic corporation these shall not be taken into account in determining ownership:</P>
                <P>(i) stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or</P>
                <P>(ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of Section 835 of the Homeland Security Act, Public Law 107-296.</P>
                <P>(2) <E T="03">Plan deemed in certain cases.</E> If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is after the date of enactment of this Act and which is 2 years before the ownership requirements of subsection (b)(2) are met, such actions shall be treated as pursuant to a plan.</P>
                <P>(3) <E T="03">Certain transfers disregarded.</E> The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.</P>
                <P>(d) <E T="03">Special rule for related partnerships.</E> For purposes of applying section 835(b) of Public Law 107-296 to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as a partnership.</P>
                <P>(e) Treatment of Certain Rights.</P>
                <P>(1) Certain rights shall be treated as stocks to the extent necessary to reflect the present value of all equitable interests incident to the transaction, as follows:</P>
                <P>(i) Warrants;</P>
                <P>(ii) Options;</P>
                <P>(iii) Contracts to acquire stock;</P>
                <P>(iv) Convertible debt instruments;</P>
                <P>(v) Others similar interests.</P>

                <P>(2) Rights labeled as stocks shall not be treated as stocks whenever it is deemed appropriate to do so to reflect the present value of the transaction or to disregard <PRTPAGE P="106"/>transactions whose recognition would defeat the purpose of section 835.</P>
                <P>(f) <E T="03">Disclosure.</E> By signing and submitting its offer, an offeror under this solicitation represents that it not a foreign incorporated entity that should be treated as an inverted domestic corporation pursuant to the criteria of Section 835 of the Homeland Security Act, Public Law 107-296 of November 25, 2002.</P>
                <P>(g) If a waiver has been granted, a copy of the approved waiver shall be attached to the bid or proposal.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.209-71</SECTNO>
              <SUBJECT>Reserve Officer Training Corps and military recruiting on campus.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3009.470-4, use the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Reserve Officer Training Corps and Military Recruiting on Campus (DEC 2003)</HD>
                <P>(a) Definitions. <E T="03">Institution of higher education,</E> as used in this clause, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.</P>
                <P>(b) Limitation on contract award. Except as provided in paragraph (c) of this clause, an institution of higher education is ineligible for contract award if the Secretary of Defense determines that the institution has a policy or practice (regardless of when implemented) that prohibits or in effect prevents—</P>
                <P>(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other applicable Federal laws) at that institution;</P>
                <P>(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;</P>
                <P>(3) The Secretary of a military department or the Secretary of Homeland Security from gaining entry to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting; or</P>
                <P>(4) Military recruiters from accessing, for purposes of military recruiting, the following information pertaining to students (who are 17 years of age or older) enrolled at that institution:</P>
                <P>(i) Name.</P>
                <P>(ii) Address.</P>
                <P>(iii) Telephone number.</P>
                <P>(iv) Date and place of birth.</P>
                <P>(v) Educational level.</P>
                <P>(vi) Academic major.</P>
                <P>(vii) Degrees received.</P>
                <P>(viii) Most recent educational institution enrollment.</P>
                <P>(c) Exception. The limitation in paragraph (b) of this clause does not apply to an institution of higher education if the Secretary of Defense determines that—</P>
                <P>(1) The institution has ceased the policy or practice described in paragraph (b) of this clause; or</P>
                <P>(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.</P>
                <P>(d) Agreement. The Contractor represents that it does not now have, and agrees that during performance of this contract it will not adopt, any policy or practice described in paragraph (b) of this clause, unless the Secretary of Defense has granted an exception in accordance with paragraph (c)(2) of this clause.</P>
                <P>(e) Notwithstanding any other clause of this contract, if the Secretary of Defense determines that the Contractor misrepresented its policies and practices at the time of contract award or has violated the agreement in paragraph (d) of this clause—</P>
                <P>(1) The Contractor will be ineligible for further payments under this and any other contracts with the Department of Homeland Security; and</P>
                <P>(2) The Government will terminate this contract for default for the Contractor's material failure to comply with the terms and conditions of award.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.209-72</SECTNO>
              <SUBJECT>Disclosure of conflicts of interest.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3009.507, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD3">Disclosure of Conflicts of Interest (DED 2003)</HD>
                <P>The Department of Homeland Security (DHS) will award contracts only to those offerors whose objectivity is not impaired by conflicting interests. Based on this policy—</P>

                <P>(a) The offeror shall provide a statement in its proposal which describes in a concise manner all past, present or planned organizational, financial, contractual or other interest(s) with an organization whose interests may be substantially affected by Departmental activities, and which is related to the work under this solicitation. The interest(s) described shall include those of the proposer, its affiliates, proposed consultants, proposed subcontractors for more than 20% of the work and key personnel of the offeror and any subcontractor accounting for more than 20% of the contract. Past interest shall be limited to within one year of the date of the offeror's technical proposal. Key personnel, for purposes of this clause, shall include any person owning more than 20% interest in the company, and the company's corporate officers, its senior managers and <PRTPAGE P="107"/>any employees responsible for making a decision or taking an action on this contract where the decision or action can have an economic or other impact on the interests of a regulated or affected organization.</P>
                <P>(b) The offeror shall describe in detail why it believes, in light of the interest(s) identified in (a) above, that performance of the proposed contract can be accomplished in an impartial and objective manner.</P>
                <P>(c) In the absence of any relevant interest identified in (a) above, the offeror shall submit in its proposal a statement certifying that to its best knowledge and belief no affiliation exists relevant to possible conflicts of interest. The offeror must obtain the same information from potential subcontractors prior to award of a subcontract.</P>
                <P>(d) The Contracting Officer will review the statement submitted and may require additional relevant information from the offeror. All such information, and any other relevant information known to DHS, will be used to determine whether an award to the offeror may create a conflict of interest. If any such conflict of interest is found to exist, the Contracting Officer may (1) disqualify the offeror, or (2) determine that it is otherwise in the best interest of the United States to contract with the offeror and include appropriate provisions to mitigate or avoid such conflict in the contract awarded.</P>
                <P>(e) The refusal to provide the disclosure or representation, or any additional information required, may result in disqualification of the offeror for award. If nondisclosure or misrepresentation is discovered after award, the resulting contract may be terminated. If, after award, the Contractor discovers a conflict of interest with respect to the contract awarded as a result of this solicitation, which could not reasonably have been known prior to award, an immediate and full disclosure shall be made in writing to the Contracting Officer. The disclosure shall include a full description of the conflict, a description of the action the contractor has taken, or proposes to take, to avoid or mitigate such conflict. The Contracting Officer may, however, terminate the contract for convenience if he or she deems that termination is in the best interest of the Government.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.211-70</SECTNO>
              <SUBJECT>Index for specifications.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3011.204-70 insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Index for Specifications (DEC 2003)</HD>
                <P>If an index or table of contents is furnished in connection with specifications, it is understood that such index or table of contents is for convenience only. Its accuracy and completeness is not guaranteed, and it is not to be considered as part of the specifications. In case of discrepancy between the index or table of contents and the specifications, the specifications shall govern.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.211-90</SECTNO>
              <SUBJECT>Bar coding requirement (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3011.204-90(a) and 3013.302-590, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Bar Coding Requirements (DEC 2003)</HD>
                <P>Item markings shall include bar coding in accordance with MIL-STD-1189 as clarified below:</P>
                <P>(a) The stock number shall be bar coded with no prefixes, dashes, spaces, or suffixes encoded. The contract number, the delivery order, or call order number, when used, shall be bar coded with no spaces or dashes encoded.</P>
                <P>(b) Prefixes and suffixes to the stock number may be included in the OCR-A in-the-clear markings, but not in the bar code.</P>
                <P>(c) Preferred Bar Code Density (characters per inch as defined in MIL-STD-1189) is “standard,” but densities from “standard” to “low” are acceptable.</P>
                <P>(d) OCR-A characters do not have to be machine-readable.</P>
                <P>(e) Bar coding shall be machine-readable.</P>
                <P>(f) Unless otherwise specified herein, minimum bar code height shall be 0.25 inch (6.4 mm) or 15 percent of the bar code length, whichever is greater.</P>
                <P>(g) The preferred position of the OCR-A characters is below the bar codes, but the OCR-A characters may be above the bar codes.</P>
                <P>(h) On outer containers contractors shall either:</P>
                <P>(1) Encode the stock numbers and contract number in one line of bar code with the stock number appearing first; or</P>
                <P>(2) Encode the item stock number and contract number on two labels, with the top label containing the stock number and the lower label containing the contract number.</P>
                <P>(i) On unit and intermediate containers, the item stock number in bar code with OCR-A below may be on the same label as the other data (identification markings) required by MIL-STD-129H. However, the bar code stock number shall appear on the top line with OCR-A characters on the second line; the OCR-A characters may include the stock number prefix and suffix, or alternatively, the complete stock number including any prefix and suffix, shall be repeated as part of the identification markings.</P>
                <P>(j) Exclusions from bar code markings are:</P>

                <P>(1) Multi-packs/consolidation containers (containers with two or more different stock numbers within).<PRTPAGE P="108"/>
                </P>
                <P>(2) Reusable shipping containers used for multiple/ different stock number applications.</P>
                <P>(3) Items consigned to a prime contractor's plant for installation in production.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.213-90</SECTNO>
              <SUBJECT>Evaluation factor for Coast Guard performance of bar coding requirement (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3013.106-190, insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Evaluation Factor for Coast Guard Performance of Bar Coding Requirement (DEC 2003)</HD>
                <P>If a small business cannot provide the bar coding requirement, as indicated elsewhere in the schedule, the contracting officer will apply the following formula to the quoted amounts:</P>
                <P>(a) Unit price quoted by small business $___</P>
                <P>(b) Add unit cost to the USCG to provide bar coding $___</P>
                <P>(c) Adjusted unit price (add lines a. and b.) $___
                </P>
                <FP>The line (c) amount will become the amount the contracting officer considered when determining the lowest quoted amount.</FP>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.215-70</SECTNO>
              <SUBJECT>Key personnel or facilities.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3015.204-3, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Key Personnel or Facilities. (DEC 2003)</HD>
                <P>(a) The personnel or facilities specified below are considered essential to the work being performed under this contract and may, with the consent of the contracting parties, be changed from time to time during the course of the contract by adding or deleting personnel or facilities, as appropriate.</P>
                <P>(b) Before removing or replacing any of the specified individuals or facilities, the Contractor shall notify the Contracting Officer, in writing, before the change becomes effective. The Contractor shall submit sufficient information to support the proposed action and to enable the Contracting Officer to evaluate the potential impact of the change on this contract. The Contractor shall not remove or replace personnel or facilities until the Contracting Officer approves the change.</P>

                <P>The Key Personnel or Facilities under this Contract:
                </P>
                <FP>(<E T="03">specify key personnel or facilities</E>)</FP>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.216-70</SECTNO>
              <SUBJECT>Evaluation of offers subject to an economic price adjustment clause.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3016.203-470, insert a provision substantially the same as the following:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Evaluation of Offers Subject to an Economic Price Adjustment Clause (DEC 2003)</HD>
                <P>Offers shall be evaluated without adding an amount for an economic price adjustment. Offers will be rejected which: (1) Increase the stipulated ceiling; (2) limit the downward adjustment; or (3) delete the economic price adjustment clause. If the offer stipulates a ceiling lower than that included in the solicitation, the lower ceiling will be incorporated into any resulting contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.216-71</SECTNO>
              <SUBJECT>Determination of award fee.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3016.406(e)(1)(i), insert a clause substantially the same as the following:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Determination of Award Fee (DEC 2003)</HD>
                <P>(a) The Government shall evaluate contractor performance at the end of each specified evaluation period(s) to determine the amount of award. The contractor agrees that the amount of award and the award fee methodology are unilateral decisions to be made at the sole discretion of the Government.</P>
                <P>(b) Contractor performance shall be evaluated according to a Performance Evaluation Plan. The contractor shall be periodically informed of the quality of its performance and areas in which improvements are expected.</P>

                <P>(c) The contractor shall be promptly advised, in writing, of the determination and reasons why the award fee was or was not earned. The contractor may submit a performance self-evaluation for each evaluation period. The amount of award is at the sole discretion of the Government but any self-evaluation received within ___ (<E T="03">insert number</E>) days after the end of the current evaluation period will be given such consideration, as may be deemed appropriate by the Government.</P>
                <P>(d) The Government may specify that a fee not earned during a given evaluation period may be accumulated and be available for allocation to one or more subsequent periods. In that event, the distribution of award fee shall be adjusted to reflect such allocations.</P>
              </EXTRACT>
              <PRTPAGE P="109"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.216-72</SECTNO>
              <SUBJECT>Performance evaluation plan.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3016.406(e)(i)(ii), insert a clause substantially the same as the following:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Performance Evaluation Plan (DEC 2003)</HD>

                <P>(a) A Performance Evaluation Plan shall be unilaterally established by the Government based on the criteria stated in the contract and used for the determination of award fee. This plan shall include the criteria used to evaluate each area and the percentage of award fee (if any) available for each area. A copy of the plan shall be provided to the contractor ___ (<E T="03">insert number</E>) calendar days prior to the start of the first evaluation period.</P>
                <P>(b) The criteria contained within the Performance Evaluation Plan may relate to: (1) Technical (including schedule) requirements if appropriate; (2) Management; and (3) Cost.</P>

                <P>(c) The Performance Evaluation Plan may, consistent with the contract, be revised unilaterally by the Government at any time during the period of performance. Notification of such changes shall be provided to the contractor ___ (<E T="03">insert number</E>) calendar days prior to the start of the evaluation period to which the change will apply.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.216-73</SECTNO>
              <SUBJECT>Distribution of award fee.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3016.406(e)(1)(iii), insert a clause substantially the same as the following:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Distribution of Award Fee (DEC 2003)</HD>

                <P>(a) The total amount of award fee available under this contract is assigned according to the following evaluation periods and amounts:
                </P>
                <FP SOURCE="FP-1">Evaluation Period:</FP>
                <FP SOURCE="FP-1">Available Award Fee:</FP>
                <FP SOURCE="FP-1">(<E T="03">insert appropriate information</E>)</FP>
                
                <P>(b) Payment of the base fee and award fee shall be made, provided that after payment of 85 percent of the base fee and potential award fee, the Government may withhold further payment of the base fee and award fee until a reserve is set aside in an amount that the Government considers necessary to protect its interest. This reserve shall not exceed 15 percent of the total base fee and potential award fee or $100,000, whichever is less.</P>
                <P>(c) In the event of contract termination, either in whole or in part, the amount of award fee available shall represent a pro rata distribution associated with evaluation period activities or events as determined by the Government.</P>
                <P>(d) The Government will promptly make payment of any award fee upon the submission by the contractor to the contracting officer's authorized representative, of a public voucher or invoice in the amount of the total fee earned for the period evaluated. Payment may be made without using a contract modification.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.216-74</SECTNO>
              <SUBJECT>Settlement of letter contract.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3016.603-4, insert a clause substantially the same as the following:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Settlement of Letter Contract (DEC 2003)</HD>

                <P>(a) This contract constitutes the definitive contract contemplated by letter contract ___ (<E T="03">insert number</E>) issued on ___ (<E T="03">insert effective date</E>). It supersedes the letter contract and its modification numbered ___ (<E T="03">insert number(s)</E>). To the extent there are inconsistencies between the definitive contract and the letter contract, the former governs.</P>

                <P>(b) The cost(s) and fee(s), or price(s), established in this definitive contract represents full and complete settlement of letter contract ___ (<E T="03">insert number</E>) and modification numbered ___ (<E T="03">insert number(s)</E>). Payment of the fee agreed upon or profit withheld pending definitization of the letter contract, may start immediately at the rate and times stated within this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-90</SECTNO>
              <SUBJECT>Delivery and Shifting of Vessel (USCG).</SUBJECT>
              <P>As prescribed in the USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Delivery and Shifting of Vessel (DEC 2003)</HD>

                <P>The Government shall deliver the vessel to the Contractor at his place of business. Upon completion of the work, the Government shall accept delivery of the vessel at the Contractor's place of business. The Contractor shall provide, at no additional charge, upon 24 hours' advance notice, a tug or tugs and docking pilot, acceptable to the Contracting Officer, to assist in handling the vessel between (to and from) the Contractor's plant and the nearest point in a waterway regularly navigated by vessels of equal or greater draft and length. While the vessel is in the hands of the Contractor, any necessary towage, cartage, or other transportation between ship and shop or elsewhere, which may be incident to the work herein <PRTPAGE P="110"/>specified, shall be furnished by the Contractor without additional charge to the Government.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-91</SECTNO>
              <SUBJECT>Performance (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Performance (DEC 2003)</HD>
                <P>(a) Upon the award of the contract, the Contractor shall promptly start the work specified and shall diligently prosecute the work to completion. The Contractor shall not start work until the contract has been awarded except in the case of emergency work ordered by the Contracting Officer in writing.</P>
                <P>(b) The Government shall deliver the vessel described in the contract at the time and location specified in the contract. Upon completion of the work, the Government shall accept delivery of the vessel at the time and location specified in the contract.</P>
                <P>(c) The Contractor shall without charge,—</P>
                <P>(1) Make available to personnel of the vessel while in dry dock or on a marine railway, sanitary lavatory and similar facilities at the plant acceptable to the Contracting Officer;</P>
                <P>(2) Supply and maintain suitable brows and gangways from the pier, dry dock, or marine railway to the vessel;</P>
                <P>(3) Treat salvage, scrap or other ship's material of the Government resulting from performance of the work as items of Government-furnished property, in accordance with the Government Property (Fixed Price Contracts) clause;</P>
                <P>(4) Perform, or pay the cost of, any repair, reconditioning or replacement made necessary as the result of the use by the Contractor of any of the vessel's machinery, equipment or fittings, including, but not limited to, winches, pumps, rigging, or pipe lines; and</P>
                <P>(5) Furnish suitable offices, office equipment and telephones at or near the site of the work for the Government's use.</P>
                <P>(d) The contract will state whether dock and sea trials are required to determine whether or not the Contractor has satisfactorily performed the work.</P>
                <P>(1) If dock and sea trials are required, the vessel shall be under the control of the vessel's commander and crew.</P>
                <P>(2) The Contractor shall not conduct dock and sea trials not specified in the contract without advance approval of the Contracting Officer. Dock and sea trials not specified in the contract shall be at the Contractor's expense and risk.</P>
                <P>(3) The Contractor shall provide and install all fittings and appliances necessary for dock and sea trials. The Contractor shall be responsible for care, installation, and removal of instruments and apparatus furnished by the Government for use in the trials.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-92</SECTNO>
              <SUBJECT>Inspection and manner of doing work (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Inspection and Manner of Doing Work (DEC 2003)</HD>
                <P>(a) The Contractor shall perform work in accordance with the contract, any drawings and specifications made a part of the job order, and any change or modification issued under the Changes clause.</P>
                <P>(b)(1) Except as provided in paragraph (b)(2) of this clause, and unless otherwise specifically provided in the contract, all operational practices of the Contractor and all workmanship, material, equipment, and articles used in the performance of work under this contract shall be in accordance with the best commercial marine practices and the rules and requirements of all appropriate regulatory bodies including, but not limited to the American Bureau of Shipping, the U.S. Coast Guard, and the Institute of Electrical and Electronic Engineers, in effect at the time of Contractor's submission of offer, and shall be intended and approved for marine use.</P>
                <P>(2) When Navy specifications are specified in the contract, the Contractor shall follow Navy standards of material and workmanship.</P>
                <P>(c) The Government may inspect and test all material and workmanship at any time during the Contractor's performance of the work.</P>
                <P>(1) If, prior to delivery, the Government finds any material or workmanship is defective or not in accordance with the contract, in addition to its rights under the Guarantee clause, the Government may reject the defective or nonconforming material or workmanship and require the Contractor to correct or replace it at the Contractor's expense.</P>
                <P>(2) If the Contractor fails to proceed promptly with the replacement or correction of the material or workmanship, the Government may replace or correct the defective or nonconforming material or workmanship and charge the Contractor the excess costs incurred.</P>
                <P>(3) As specified in the contract, the Contractor shall provide and maintain an inspection system acceptable to the Government.</P>

                <P>(4) The Contractor shall maintain complete records of all inspection work and shall make them available to the Government <PRTPAGE P="111"/>during performance of the contract and for 90 days after the completion of all work required.</P>
                <P>(d) The Contractor shall not permit any welder to work on a vessel unless the welder is, at the time of the work, qualified to the standards established by the U.S. Coast Guard, American Bureau of Shipping, or Department of the Navy for the type of welding being performed. Qualifications of a welder shall be as specified in the contract.</P>
                <P>(e) The Contractor shall—</P>
                <P>(1) Exercise reasonable care to protect the vessel from fire;</P>
                <P>(2) Maintain a reasonable system of inspection over activities taking place in the vicinity of the vessel's magazines, fuel oil tanks, or storerooms containing flammable materials.</P>
                <P>(3) Maintain a reasonable number of hose lines ready for immediate use on the vessel at all times while the vessel is berthed alongside the Contractor's pier or in dry dock or on a marine railway;</P>
                <P>(4) Unless otherwise provided in the contract, provide sufficient security patrols to reasonably maintain a fire watch for protection of the vessel when it is in the Contractor's custody;</P>
                <P>(5) To the extent necessary, clean, wash, and steam out or otherwise make safe, all tanks under alteration or repair.</P>
                <P>(6) Furnish the Contracting Officer a “gas-free” or “safe-for-hotwork” certificate before any hot work is done on a tank;</P>
                <P>(7) Treat the contents of any tank as Government property in accordance with the Government Property (Fixed-Price Contracts) clause; and</P>
                <P>(8) Dispose of the contents of any tank only at the direction, or with the concurrence, of the Contracting Officer.</P>
                <P>(9) Be responsible for the proper closing of all openings to the vessel's underwater structure upon which work has been performed. The contractor additionally must advise the COTR of the status of all valves closures and openings for which the contractor's workers were responsible.</P>
                <P>(f) Except as otherwise provided in the contract, when the vessel is in the custody of the Contractor or in dry dock or on a marine railway and the temperature is expected to go as low as 35 Fahrenheit, the Contractor shall take all necessary steps to—</P>
                <P>(1) Keep all hose pipe lines, fixtures, traps, tanks, and other receptacles on the vessel from freezing; and</P>
                <P>(2) Protect the stern tube and propeller hubs from frost damage.</P>
                <P>(g) The Contractor shall, whenever practicable—</P>
                <P>(1) Perform the required work in a manner that will not interfere with the berthing and messing of Government personnel attached to the vessel; and</P>
                <P>(2) Provide Government personnel attached to the vessel access to the vessel at all times.</P>
                <P>(h) Government personnel attached to the vessel shall not interfere with the Contractor's work or workers.</P>
                <P>(i)(1) The Government does not guarantee the correctness of the dimensions, sizes, and shapes set forth in any contract, sketches, drawings, plans, or specifications prepared or furnished by the Government, unless the contract requires that the Contractor perform the work prior to any opportunity to inspect.</P>
                <P>(2) Except as stated in paragraph (i)(1) of this clause, and other than those parts furnished by the Government, and the Contractor shall be responsible for the correctness of the dimensions, sizes, and shapes of parts furnished under this agreement.</P>
                <P>(j) The Contractor shall at all times keep the site of the work on the vessel free from accumulation of waste material or rubbish caused by its employees or the work. At the completion of the work, unless the contract specifies otherwise, the Contractor shall remove all rubbish from the site of the work and leave the immediate vicinity of the work area “broom clean.”</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-93</SECTNO>
              <SUBJECT>Subcontracts (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Subcontracts (DEC 2003)</HD>
                <P>(a) Nothing contained in the contract shall be construed as creating any contractual relationship between any subcontractor and the Government. The divisions or sections of the specifications are not intended to control the Contractor in dividing the work among subcontractors or to limit the work performed by any trade.</P>
                <P>(b) The Contractor shall be responsible to the Government for acts and omissions of its own employees, and of subcontractors and their employees. The Contractor shall also be responsible for the coordination of the work of the trades, subcontractors, and material men.</P>
                <P>(c) The Contractor shall, without additional expense to the Government, employ specialty subcontractors where required by the specifications.</P>
                <P>(d) The Government or its representatives will not undertake to settle any differences between the Contractor and its subcontractors, or between subcontractors.</P>
              </EXTRACT>
              <PRTPAGE P="112"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-94</SECTNO>
              <SUBJECT>Lay days (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Lay Days (DEC 2003)</HD>
                <P>(a) Lay day time will be paid by the Government at the Contractor's stipulated bid price for this item of the contract when the vessel remains on the dry dock or marine railway as a result of any change that involves work in addition to that required under the basic contract.</P>
                <P>(b) No lay day time shall be paid until all items of the basic contract for which a price was established by the Contractor and for which docking of the vessel was required have been satisfactorily completed and accepted.</P>
                <P>(c) Days of hauling out and floating, whatever the hour, shall not be paid as lay day time, and days when no work is performed by the Contractor shall not be paid as lay day time.</P>
                <P>(d) Payment of lay day time shall constitute complete compensation for all costs, direct and indirect, to reimburse the Contractor for use of dry dock or marine railway.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-95</SECTNO>
              <SUBJECT>Liability and insurance (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Liability and Insurance (DEC 2003)</HD>
                <P>(a) The Contractor shall exercise its best efforts to prevent accidents, injury, or damage to all employees, persons, and property, in and about the work, and to the vessel or part of the vessel upon which work is done.</P>
                <P>(b) Loss or damage to the vessel, materials, or equipment. (1) Unless otherwise directed or approved in writing by the Contracting Officer, the Contractor shall not carry insurance against any form of loss or damage to the vessel(s) or to the materials or equipment to which the Government has title or which have been furnished by the Government for installation by the Contractor. The Government assumes the risks of loss of and damage to that property.</P>
                <P>(2) The Government does not assume any risk with respect to loss or damage compensated for by insurance or otherwise or resulting from risks with respect to which the Contractor has failed to maintain insurance, if available, as required or approved by the Contracting Officer.</P>
                <P>(3) The Government does not assume risk of and will not pay for any costs of the following:</P>
                <P>(i) Inspection, repair, replacement, or renewal of any defects in the vessel(s) or material and equipment due to—</P>
                <P>(A) Defective workmanship performed by the Contractor or its subcontractors;</P>
                <P>(B) Defective materials or equipment furnished by the Contractor or its subcontractors; or</P>
                <P>(C) Workmanship, materials, or equipment which do not conform to the requirements of the contract, whether or not the defect is latent or whether or not the nonconformance is the result of negligence.</P>
                <P>(ii) Loss, damage, liability, or expense caused by, resulting from, or incurred as a consequence of any delay or disruption, willful misconduct or lack of good faith by the Contractor or any of its representatives that have supervision or direction of—</P>
                <P>(A) All or substantially all of the Contractor's business; or</P>
                <P>(B) All or substantially all of the Contractor's operation at any one plant.</P>
                <P>(4) As to any risk that is assumed by the Government, the Government shall be subrogated to any claim, demand or cause of action against third parties that exists in favor of the Contractor. If required by the Contracting Officer, the Contractor shall execute a formal assignment or transfer of the claim, demand, or cause of action.</P>
                <P>(5) No party other than the Contractor shall have any right to proceed directly against the Government or join the Government as a codefendant in any action.</P>
                <P>(6) Notwithstanding the foregoing, the Contractor shall bear the first $5,000 of loss or damage from each occurrence or incident, the risk of which the Government would have assumed under the provision of this paragraph (b).</P>
                <P>(c) <E T="03">Indemnification.</E> The Contractor indemnifies the Government and the vessel and its owners against all claims, demands, or causes of action to which the Government, the vessel or its owner(s) might be subject as a result of damage or injury (including death) to the property or person of anyone other than the Government or its employees, or the vessel or its owner, arising in whole or in part from the negligence or other wrongful act of the Contractor, or its agents or employees, or any subcontractor, or its agents or employees.</P>
                <P>(1) The Contractor's obligation to indemnify under this paragraph shall not exceed the sum of $300,000 as a consequence of any single occurrence with respect to any one vessel.</P>

                <P>(2) The indemnity includes, without limitation, suits, actions, claims, costs, or demands of any kind, resulting from death, personal injury, or property damage occurring during the period of performance of <PRTPAGE P="113"/>work on the vessel or within 90 days after redelivery of the vessel. For any claim, etc., made after 90 days, the rights of the parties shall be as determined by other provisions of this contract and by law. The indemnity does apply to death occurring after 90 days where the injury was received during the period covered by the indemnity.</P>
                <P>(d) <E T="03">Insurance.</E> (1) The Contractor shall, at its own expense, obtain and maintain the following insurance—</P>
                <P>(i) Casualty, accident, and liability insurance, as approved by the Contracting Officer, insuring the performance of its obligations under paragraph (c) of this clause.</P>
                <P>(ii) Workers Compensation Insurance (or its equivalent) covering the employees engaged on the work.</P>
                <P>(2) The Contractor shall ensure that all subcontractors engaged on the work obtain and maintain the insurance required in paragraph (d)(1) of this clause.</P>
                <P>(3) Upon request of the Contracting Officer, the Contractor shall provide evidence of the insurance required by paragraph (d) of this clause.</P>
                <P>(e) The Contractor shall not make any allowance in the contract price for the inclusion of any premium expense or charge for any reserve made on account of self-insurance for coverage against any risk assumed by the Government under this clause.</P>
                <P>(f) The Contractor shall give the Contracting Officer written notice as soon as practicable after the occurrence of a loss or damage for which the Government has assumed the risk.</P>
                <P>(1) The notice shall contain full details of the loss or damage.</P>
                <P>(2) If a claim or suit is later filed against the Contractor as a result of the event, the Contractor shall immediately deliver to the Government every demand, notice, summons, or other process received by the Contractor or its employees or representatives.</P>
                <P>(3) The Contractor shall cooperate with the Government and, upon request, shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses, and in the conduct of suits. The Government shall reimburse the Contractor for expenses incurred in this effort, other than the cost of maintaining the Contractor's usual organization.</P>
                <P>(4) The Contractor shall not, except at its own expense, voluntarily make any payments, assume any obligation, or incur any expense other than what would be imperative for the protection of the vessel(s) at the time of the event.</P>
                <P>(g) In the event of loss of or damage to any vessel(s), material, or equipment which may result in a claim against the Government under the insurance provisions of this contract, the Contractor shall promptly notify the Contracting Officer of the loss or damage. The Contracting Officer may, without prejudice to any right of the Government, either—</P>
                <P>(1) Order the Contractor to proceed with replacement or repair, in which event the Contractor shall effect the replacement or repair;</P>
                <P>(i) The Contractor shall submit to the Contracting Officer a request for reimbursement of the cost of the replacement or repair together with whatever supporting documentation the Contracting Officer may reasonably require, and shall identify the request as being submitted under the Insurance clause of this contract.</P>
                <P>(ii) If the Government determines that the risk of the loss or damage is within the scope of the risks assumed by the Government under this clause, the Government will reimburse the Contractor for the reasonable allowable cost of the replacement or repair, plus a reasonable profit (if the work or replacement or repair was performed by the Contractor) less the deductible amount specified in paragraph (b) of this clause.</P>
                <P>(iii) Payments by the Government to the Contractor under this clause are outside the scope of and shall not affect the pricing structure of the contract, and are additional to the compensation otherwise payable to the Contractor under this contract; or</P>
                <P>(2) Decide that the loss or damage shall not be replaced or repaired and in that event, the Contracting Officer shall—</P>
                <P>(i) Modify the contract appropriately, consistent with the reduced requirements reflected by the unreplaced or unrepaired loss or damage; or</P>
                <P>(ii) Terminate the repair of any part or all of the vessel(s) under the Termination for Convenience of the Government clause of this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-96</SECTNO>
              <SUBJECT>Title (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Title (DED 2003)</HD>
                <P>(a) Unless otherwise provided, title to all materials and equipment to be incorporated in a vessel in the performance of this contract shall vest in the Government upon delivery at the location specified for the performance of the work.</P>

                <P>(b) Upon completion of the contract, or with the approval of the Contracting Officer during performance of the contract, all Contractor-furnished materials and equipment not incorporated in, or placed on, any vessel, shall become the property of the Contractor, unless the Government has reimbursed the Contractor for the cost of the materials and equipments.<PRTPAGE P="114"/>
                </P>
                <P>(c) The vessel, its equipment, movable stores, cargo, or other ship's materials shall not be considered Government-furnished property.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-97</SECTNO>
              <SUBJECT>Discharge of liens (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Discharge of Liens (DEC 2003)</HD>

                <P>(a) The Contractor shall immediately discharge or cause to be discharged, any lien or right <E T="03">in rem</E> of any kind, other than in favor of the Government, that exists or arises in connection with work done or materials furnished under this contract.</P>
                <P>(b) If any such lien or right <E T="03">in rem</E> is not immediately discharged, the Government, at the expense of the Contractor, may discharge, or cause to be discharged, the lien or right.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-98</SECTNO>
              <SUBJECT>Delays (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Delays (DEC 2003)</HD>
                <P>When during the performance of this contract the Contractor is required to delay work on a vessel temporarily, due to orders or actions of the Government respecting stoppage of work to permit shifting the vessel, stoppage of hot work to permit bunkering, stoppage of work due to embarking or debarking passengers and loading or discharging cargo, and the Contractor is not given sufficient advance notice or is otherwise unable to avoid incurring additional costs on account thereof, an equitable adjustment shall be made in the price of the contract pursuant to the “Changes” clause.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-99</SECTNO>
              <SUBJECT>Department of Labor safety and health regulations for ship repairing (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Department of Labor Safety and Health Regulations for Ship Repair (DEC 2003)</HD>
                <P>Nothing contained in this contract shall relieve the Contractor of any obligations it may have to comply with—</P>

                <P>(a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651, <E T="03">et seq.</E>);</P>
                <P>(b) The Safety and Health Regulations for Ship Repairing (29 CFR part 1915); or</P>
                <P>(c) Any other applicable Federal, State, and local laws, codes, ordinances, and regulations.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.217-100</SECTNO>
              <SUBJECT>Guarantee (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(c), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Guarantee (DEC 2003)</HD>
                <P>(a) In the event any work performed or materials furnished by the contractor prove defective or deficient within 60 days from the date of redelivery of the vessel(s), the Contractor, as directed by the Contracting Officer and at its own expense, shall correct and repair the deficiency to the satisfaction of the Contracting Officer.</P>
                <P>(b) If the Contractor or any subcontractor has a guarantee for work performed or materials furnished that exceeds the 60 day period, the Government shall be entitled to rely upon the longer guarantee until its expiration.</P>
                <P>(c) With respect to any individual work item identified as incomplete at the time of redelivery of the vessel(s), the guarantee period shall run from the date the item is completed.</P>
                <P>(d) If practicable, the Government shall give the Contractor an opportunity to correct the deficiency.</P>
                <P>(1) If the Contracting Officer determines it is not practicable or is otherwise not advisable to return the vessel(s) to the Contractor, or the Contractor fails to proceed with the repairs promptly, the Contracting Officer may direct that the repairs be performed elsewhere, at the Contractor's expense.</P>
                <P>(2) If correction and repairs are performed by other than the Contractor, the Contracting Officer may discharge the Contractor's liability by making an equitable deduction in the price of the contract.</P>
                <P>(e) The Contractor's liability shall extend for an additional 90-day guarantee period on those defects or deficiencies that the Contractor corrected.</P>
                <P>(f) At the option of the Contracting officer, defects and deficiencies may be left uncorrected. In that event, the Contractor and Contracting Officer shall negotiate an equitable reduction in the contract price. Failure to agree upon an equitable reduction shall constitute a dispute under the Disputes clause of this contract.</P>
              </EXTRACT>
              <PRTPAGE P="115"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.219-70</SECTNO>
              <SUBJECT>Small Business subcontracting program reporting.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3019.708-70(a), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">The Small Business Subcontracting Program Reporting (DEC 2003)</HD>
                <P>(a) The Contractor shall submit the Summary Subcontract Report (Standard Form 295 (SF-295)) to the Department of Homeland Security, Office of Small and Disadvantaged Business Utilization, Washington, DC, 20528.</P>
                <P>(b) The Contractor shall include this clause in all subcontracts that include the clause at (FAR) 48 CFR 52.219-9.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.219-71</SECTNO>
              <SUBJECT>DHS mentor-protégé program.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3019.708-70(b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">DHS Mentor-Protégé Program (DEC 2003)</HD>
                <P>(a) Large businesses are encouraged to participate in the DHS Mentor-Protégé program for the purpose of providing developmental assistance to eligible small business protégé entities to enhance their capabilities and increase their participation in DHS contracts.</P>
                <P>(b) The program consists of:</P>
                <P>(1) Mentor firms, which are large prime contractors capable of providing developmental assistance;</P>
                <P>(2) Protégé firms, which are small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUBZone small businesses, small disadvantaged businesses, and women-owned small business concerns; and</P>
                <P>(3) Mentor-Protégé agreements, approved by the DHS OSDBU.</P>
                <P>(c) Mentor participation in the program means providing business developmental assistance to aid Protégés in developing the requisite expertise to effectively compete for and successfully perform DHS contracts and subcontracts.</P>
                <P>(d) Large business prime contractors, serving as mentors in the DHS mentor-protégé program, are eligible for a post-award incentive for subcontracting plan credit by recognizing costs incurred by a mentor firm in providing assistance to a protégé firm and using this credit for purposes of determining whether the mentor firm attains a subcontracting plan participation goal applicable to the mentor firm under a DHS contract. The amount of credit given to a mentor firm for these protégé developmental assistance costs shall be calculated on a dollar for dollar basis and reported via the SF-295; for example, the mentor/large business prime contractor reports a $10,000 subcontract to the protégé/small business subcontractor and $5,000 of developmental assistance to the protégé/small business subcontractor as $15,000 ($10,000 traditional subcontract plus $5,000 in developmental assistance for a total of $15,000).</P>
                <P>(e) Contractors interested in participating in the program are encouraged to contact the DHS OSDBU for more information.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.219-72</SECTNO>
              <SUBJECT>Evaluation of prime contractor participation in the DHS mentor-protégé program.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3019.708-70(c), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Evaluation of Prime Contractor Participation in the DHS Mentor-Protégé Program (DEC 2003)</HD>
                <P>This solicitation contains a source selection factor or subfactor regarding participation in the DHS Mentor-Protégé Program. In order to receive credit under the source selection factor or subfactor, the offeror shall provide a signed letter of mentor-protégé agreement approval from the DHS OSDBU.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.222-70</SECTNO>
              <SUBJECT>Strikes or picketing affecting timely completion of the contract work.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3022.101-71(a), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Strikes or Picketing Affecting Timely Completion of the Contract Work (DED 2003)</HD>
                <P>Notwithstanding any other provision hereof, the Contractor is responsible for delays arising out of labor disputes, including but not limited to strikes, if such strikes are reasonably avoidable. A delay caused by a strike or by picketing which constitutes an unfair labor practice is not excusable unless the Contractor takes all reasonable and appropriate action to end such a strike or picketing, such as the filing of a charge with the National Labor Relations Board, the use of other available Government procedures, and the use of private boards or organizations for the settlement of disputes.</P>
              </EXTRACT>
              <PRTPAGE P="116"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.222-71</SECTNO>
              <SUBJECT>Strikes or picketing affecting access to a DHS facility.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3022.101-71(b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Strikes or Picketing Affecting Access to a DHS Facility (DEC 2003)</HD>
                <P>If the Contracting Officer notifies the Contractor in writing that a strike or picketing: (a) is directed at the Contractor or subcontractor or any employee of either; and (b) impedes or threatens to impede access by any person to a DHS facility where the site of the work is located, the Contractor shall take all appropriate action to end such strike or picketing, including, if necessary, the filing of a charge of unfair labor practice with the National Labor Relations Board or the use of other available judicial or administrative remedies.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.222-90</SECTNO>
              <SUBJECT>Local hire (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3022.9001, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Local Hire (DEC 2003)</HD>
                <P>(a) When performing a contract in a State with an unemployment rate in excess of the national average determined by the Secretary of Labor, the Contractor shall employ individuals who are local residents and who, in the case of any craft or trade, possess or would be able to acquire promptly, the necessary skills.</P>
                <P>(b) Local resident defined. As used in this section, “local resident” means a resident of, or an individual who commutes daily to a State described in subsection (a).</P>
                <P>(c) The Secretary of Homeland Security may waive the requirements of this subsection in the interest of national security or economic efficiency.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.223-70</SECTNO>
              <SUBJECT>Removal or disposal of hazardous substances—applicable licenses and permits.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3023.303, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Removal or Disposal of Hazardous Substances—Applicable Licenses and Permits (DEC 2003)</HD>
                <P>The Contractor certifies that it has __ does not have __ all licenses and permits required by Federal, State, and local laws to perform hazardous substance(s) removal or disposal services. If the Contractor does not currently possess these documents, it shall obtain all requisite licenses and permits within __ days after date of award. The Contractor shall provide evidence of said documents to the Contracting Officer or designated Government representative prior to commencement of work under the contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.223-90</SECTNO>
              <SUBJECT>Accident and fire reporting (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3023.9000(a), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Accident and Fire Reporting (DEC 2003)</HD>
                <P>(a) The Contractor shall report to the Contracting Officer any accident or fire occurring at the site of the work that causes:</P>
                <P>(1) A fatality or the loss of at least one lost workday on the part of any employee of the Contractor or subcontractor at any tier;</P>
                <P>(2) Damage of $1,000 or more to Federal real or personal property; either real or personal;</P>
                <P>(3) Damage of $1,000 or more to Contractor or subcontractor owned or leased motor vehicles or mobile equipment; or</P>
                <P>(4) Damage for which a contract time extension may be requested.</P>
                <P>(b) Accident and fire reports required by paragraph (a) above shall be accomplished by the following means:</P>
                <P>(1) Accidents or fires resulting in a death, hospitalization of five or more persons, or destruction of Federal real or personal property, the total value of which is estimated at $100,000 or more, shall be reported immediately by telephone to the Contracting Officer or his/her authorized representative and shall be confirmed by telegram, facsimile or e-mail transmission within 24 hours to the Contracting Officer. Such telegram or facsimile transmission shall state all known facts as to extent of injury and damage and as to cause of the accident or fire.</P>
                <P>(2) Other accident and fire reports required by paragraph (a) above may be reported by the Contractor using a state, private insurance carrier, or Contractor accident report form which provides for the statement of:</P>
                <P>(i) The extent of injury; and</P>
                <P>(ii) The damage and cause of the accident or fire.</P>
                <P>Such report shall be mailed or otherwise delivered to the Contracting Officer within 48 hours of the occurrence of the accident or fire.</P>
                <P>(c) The Contractor shall assure compliance by subcontractors at all tiers with the requirements of this clause.</P>
              </EXTRACT>
              <PRTPAGE P="117"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.228-70</SECTNO>
              <SUBJECT>Insurance.</SUBJECT>

              <P>As prescribed in (HSAR) 48 CFR 3028.310-70 and 3028.311-1, insert a clause substantially the same as follows. The contracting officer may specify additional kinds (<E T="03">e.g.,</E> aircraft public and passenger liability, vessel liability) or increased amounts of insurance.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Insurance (DEC 2003)</HD>

                <P>In accordance with the clause entitled “Insurance—Work on a Government Installation” [<E T="03">or Insurance—Liability to Third Persons</E>] in Section I, insurance of the following kinds and minimum amounts shall be provided and maintained during the period of performance of this contract:</P>
                <P>(a) Worker's compensation and employer's liability. The contractor shall, as a minimum, meet the requirements specified at (FAR) 48 CFR 28.307-2(a).</P>
                <P>(b) General liability. The contractor shall, as a minimum, meet the requirements specified at (FAR) 48 CFR 28.307-2(b).</P>
                <P>(c) Automobile liability. The contractor shall, as a minimum, meet the requirements specified at (FAR) 48 CFR 28.307-2(c).</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.228-90</SECTNO>
              <SUBJECT>Notification of Miller Act payment bond protection (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3028.106-490, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notification of Miller Act Payment Bond Protection (DEC 2003)</HD>
                <P>This notice clause shall be inserted by first tier subcontractors in all their subcontracts and shall contain information pertaining to the surety that provided the payment bond under the prime contract.</P>
                <P>(a) The prime contract is subject to the Miller Act (40 U.S.C. 270), under which the prime contractor has obtained a payment bond. This payment bond may provide certain unpaid employees, suppliers, and subcontractors a right to sue the bonding surety under the Miller Act for amounts owned for work performed and materials delivery under the prime contract.</P>
                <P>(b) Persons believing that they have legal remedies under the Miller Act should consult their legal advisor regarding the proper steps to take to obtain these remedies. This notice clause does not provide any party any rights against the Federal Government, or create any relationship, contractual or otherwise, between the Federal Government and any private party.</P>
                <P>(c) The surety which has provided the payment bond under the prime contract is:</P>
                <FP SOURCE="FP-DASH"/>
                <FP>(Name)</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>(Street Address)</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>(City, State, Zip Code)</FP>
                <FP SOURCE="FP-DASH"/>
                <FP>(Contact &amp; Tel. No.)</FP>
                <FP SOURCE="FP-DASH"/>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.228-91</SECTNO>
              <SUBJECT>Loss of or damage to leased aircraft (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and (b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Loss of or Damage to Leased Aircraft (DEC 2003)</HD>
                <P>(a) The Government assumes all risk of loss of, or damage (except normal wear and tear) to, the leased aircraft during the term of this lease while the aircraft is in the possession of the Government.</P>
                <P>(b) In the event of damage to the aircraft, the Government, at its option, shall make the necessary repairs with its own facilities or by contract, or pay the Contractor the reasonable cost of repair of the aircraft.</P>
                <P>(c) In the event the aircraft is lost or damaged beyond repair, the Government shall pay the Contractor a sum equal to the fair market value of the aircraft at the time of such loss or damage, which value may be specifically agreed to in clause 3052.228-92, “Fair Market Value of Aircraft,” less the salvage value of the aircraft. However, the Government may retain the damaged aircraft or dispose of it as it wishes. In that event, the Contractor will be paid the fair market value of the aircraft as stated in the clause.</P>
                <P>(d) The Contractor agrees that the contract price does not include any cost attributable to hull insurance or to any reserve fund it has established to protect its interest in the aircraft. If, in the event of loss or damage to the leased aircraft, the Contractor receives compensation for such loss or damage in any form from any source, the amount of such compensation shall be:</P>
                <P>(1) Credited to the Government in determining the amount of the Government's liability; or</P>
                <P>(2) For an increment of value of the aircraft beyond the value for which the Government is responsible.</P>
                <P>(e) In the event of loss of or damage to the aircraft, the Government shall be subrogated to all rights of recovery by the Contractor against third parties for such loss or damage and the Contractor shall promptly assign such rights in writing to the Government.</P>
              </EXTRACT>
              <PRTPAGE P="118"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.228-92</SECTNO>
              <SUBJECT>Fair market value of aircraft (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and (c), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Fair Market Value of Aircraft (DEC 2003)</HD>
                <P>For purposes of the clause entitled “Loss of or Damage to Leased Aircraft,” the fair market value of the aircraft to be used in the performance of this contract shall be the lesser of the two values set out in paragraphs (a) and (b) below:</P>
                <P>(a) $___; or</P>
                <P>(b) If the contractor has insured the same aircraft against loss or destruction in connection with other operations, the amount of such insurance coverage on the date of the loss or damage for which the Government may be responsible under this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.228-93</SECTNO>
              <SUBJECT>Risk and indemnities (USCG).</SUBJECT>
              <P>As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and (d), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Risk and Indemnities (DEC 2003)</HD>
                <P>The Contractor hereby agrees to indemnify and hold harmless the Government, its officers and employees from and against all claims, demands, damages, liabilities, losses, suits and judgments (including all costs and expenses incident thereto) which may be suffered by, accrue against, be charged to or recoverable from the Government, its officers and employees by reason of injury to or death of any person other than officers, agents, or employees of the Government or by reason of damage to property of others of whatsoever kind (other than the property of the Government, its officers, agents or employees) arising out of the operation of the aircraft. In the event the Contractor holds or obtains insurance in support of this covenant, evidence of insurance shall be delivered to the Contracting Officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.231-70</SECTNO>
              <SUBJECT>Precontract costs.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3031.205-32, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Precontract Costs (DEC 2003)</HD>
                <P>The Contractor shall be entitled to reimbursement for pre-contract costs incurred on or after ___ in an amount not to exceed $___ that, if incurred after this contract had been entered into, would have been reimbursable under this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.236-70</SECTNO>
              <SUBJECT>Special precautions for work at operating airports.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3036.570, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Special Precautions for Work at Operating Airports (DEC 2003)</HD>
                <P>(a) When work is to be performed at an operating airport, the Contractor must arrange its work schedule so as not to interfere with flight operations. Such operations will take precedence over construction convenience. Any operations of the Contractor which would otherwise interfere with or endanger the operations of aircraft shall be performed only at times and in the manner directed by the Contracting Officer. The Government will make every effort to reduce the disruption of the Contractor's operation.</P>
                <P>(b) Unless otherwise specified by local regulations, all areas in which construction operations are underway shall be marked by yellow flags during daylight hours and by red lights at other times. The red lights along the edge of the construction areas within the existing aprons shall be the electric type of not less than 100 watts intensity placed and supported as required. All other construction markings on roads and adjacent parking lots may be either electric or battery type lights. These lights and flags shall be placed so as to outline the construction areas and the distance between any two flags or lights shall not be greater than 25 feet. The Contractor shall provide adequate watch to maintain the lights in working condition at all times other than daylight hours. The hour of beginning and the hour of ending of daylight will be determined by the Contracting Officer.</P>
                <P>(c) All equipment and material in the construction areas or when moved outside the construction area shall be marked with airport safety flags during the day and when directed by the Contracting Officer, with red obstruction lights at nights. All equipment operating on the apron, taxiway, runway, and intermediate areas after darkness hours shall have clearance lights in conformance with instructions from the Contracting Officer. No construction equipment shall operate within 50 feet of aircraft undergoing fuel operations. Open flames are not allowed on the ramp except at times authorized by the Contracting Officer.</P>

                <P>(d) Trucks and other motorized equipment entering the airport or construction area shall do so only over routes determined by the Contracting Officer. Use of runways, aprons, taxiways, or parking areas as truck or equipment routes will not be permitted <PRTPAGE P="119"/>unless specifically authorized for such use. Flag personnel shall be furnished by the Contractor at points on apron and taxiway for safe guidance of its equipment over these areas to assure right of way to aircraft. Areas and routes used during the contract must be returned to their original condition by the Contractor. Airport management shall establish the maximum speed allowed at the airport. Vehicles shall be operated so as to be under safe control at all times, weather and traffic conditions considered. Vehicles must be equipped with head and taillights during the hours of darkness.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.237-70</SECTNO>
              <SUBJECT>Qualifications of contractor employees.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3037.110-70(a), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Qualifications of Contractor Employees (DEC 2003)</HD>
                <P>(a) “Sensitive Information” is any information or proprietary data which if subject to unauthorized access, modification, loss, or misuse could adversely affect the national interest, the conduct of Federal programs, or the privacy to which individuals are entitled under 5 U.S.C. 552a (The Privacy Act), but that has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept classified in the interest of national defense or foreign policy.</P>
                <P>(b) Work under this contract may involve access to sensitive information. Therefore, the Contractor shall not disclose, orally or in writing, any sensitive information to any person unless authorized in writing by the Contracting Officer. For those contractor employees authorized access to sensitive information, the contractor shall ensure that these persons receive training concerning the protection and disclosure of sensitive information both during and after contract performance.</P>
                <P>(c) Contractor employees working on this contract must complete such forms, as may be necessary for security or other reasons, including the conduct of background investigations to determine suitability. Completed forms shall be submitted as directed by the Contracting Officer. Upon the Contracting Officer's request, the Contractor's employees shall be fingerprinted, or subject to other investigations as required.</P>
                <P>(d) The Contracting Officer may require dismissal from work those employees deemed incompetent, careless, insubordinate, or otherwise objectionable, or whose continued employment is deemed contrary to the public interest or inconsistent with the best interest of national security.</P>
                <P>(e) Each employee of the Contractor shall be a citizen of the United States of America, or an alien who has been lawfully admitted for permanent residence as evidenced by an Alien Registration Receipt Card Form I-151. An alien authorized to work shall present evidence from the Bureau of Citizenship and Immigration Services that employment will not affect his or her immigration status.</P>
                <P>(f) The Contractor shall include the substance of this clause in all subcontracts at any tier where the subcontractor may have access to Government facilities, sensitive information, or resources.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.237-71</SECTNO>
              <SUBJECT>Information technology systems access for contractors.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3037.110-70(a) and (b), insert a clause substantially as follows. The contracting officer may specify additional IT security requirements unique to an OE.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Information Technology Systems Access for Contractors (DEC 2003)</HD>
                <P>(a) No contractor personnel shall start work under this contract that involves actual or potential access to sensitive information until (1) approved for access, (2) they have received a security briefing, or current refresher, about Information Technology (IT) security, from the appropriate Organizational Element (OE) Information Systems Security Officer (ISSO); and (3) have signed a non-disclosure agreement form. This user security agreement is provided as an Attachment to this solicitation. By signing the user security agreement, the individual will be acknowledging their responsibility to properly use and safeguard all DHS OE information technology resources and information related thereto. The Contracting Officer Technical Representative (COTR) for this contract shall arrange the aforementioned security briefing. The ISSO is responsible for retaining the non-disclosure documents signed and submitted by the contractor employees as well evidence of security training.</P>

                <P>(b) The contractor shall have access only to those areas of DHS OE information technology resources explicitly stated in this contract or approved by the COTR in writing as necessary for performance of the work under this contract. Information technology assets includes computer equipment, networking equipment, telecommunications equipment, cabling, network drives, computer drives, network software, computer software, software programs, intranet sites, and Internet sites. Any attempts by contractor personnel to gain access to any information technology resources not expressly <PRTPAGE P="120"/>authorized by the statement of work, other terms and conditions in this contract, or as approved in writing by the COTR, is strictly prohibited. In the event of violation of this provision, DHS will take appropriate actions with regard to the contract.</P>
                <P>(c) Contractor access to DHS networks from a remote location is a temporary privilege for mutual convenience while the contractor performs business for the DHS OE. It is not a right, a guarantee of access, a condition of the contract, nor is it Government Furnished Equipment (GFE).</P>
                <P>(d) Contractor access will be terminated for unauthorized use. The contractor agrees to hold and save DHS harmless from any unauthorized use and agrees not to request additional time or money under the contract for any delays resulting from unauthorized use or access.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.237-72</SECTNO>
              <SUBJECT>Contractor personnel screening for unclassified information technology access.</SUBJECT>
              <P>As prescribed in 3037.110-70(a) and (b), insert a clause substantially as follows:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Contractor Personnel Screening for Unclassified Information Technology Access (DEC 2003)</HD>
                <P>(a) Contractor personnel requiring privileged access or limited risk assessment level. Guidance for selecting the appropriate level of screening is based on the risk of adverse impact to DHS missions, as indicated in FIPS PUB 199, Standards for Security Categorization of Federal Information and Information Systems (Initial Public Draft).</P>
                <P>(b) The Contractor shall afford DHS, including the Office of Inspector General, access to the Contractor's and subcontractors' facilities, installations, operations, documentation, databases and personnel used in performance of the contract. Access shall be provided to the extent required to carry out a program of IT inspection, investigation and audit to safeguard against threats and hazards to the integrity, availability and confidentiality of DHS data or to the function of computer systems operated on behalf of DHS, and to preserve evidence of computer crime.</P>
                <P>(c) The Contractor shall incorporate the substance of this clause in all subcontracts that meet the conditions in paragraph (a) of this clause.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.242-70</SECTNO>
              <SUBJECT>Dissemination of information—educational institutions.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3042.203-70(a), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Dissemination of Information—Educational Institutions (DEC 2003)</HD>
                <P>(a) The Department of Homeland Security (DHS) desires widespread dissemination of the results of funded non-sensitive research. The Contractor, therefore, may publish (subject to the provisions of the “Data Rights” and “Patent Rights” clauses of the contract) research results in professional journals, books, trade publications, or other appropriate media (a thesis or collection of theses should not be used to distribute results because dissemination will not be sufficiently widespread). All costs of publication pursuant to this clause shall be borne by the Contractor and shall not be charged to the Government under this or any other Federal contract.</P>
                <P>(b) Any copy of material published under this clause shall contain acknowledgment of DHS's sponsorship of the research effort and a disclaimer stating that the published material represents the position of the author(s) and not necessarily that of DHS. Articles for publication or papers to be presented to professional societies do not require the authorization of the Contracting Officer prior to release. However, a printed or electronic copy of each article shall be transmitted to the Contracting Officer at least two weeks prior to release or publication.</P>
                <P>(c) Press releases concerning the results or conclusions from the research under this contract shall not be made or otherwise distributed to the public without prior written approval of the Contracting Officer.</P>
                <P>(d) Publication under the terms of this clause does not release the Contractor from the obligation of preparing and submitting to the Contracting Officer a final report containing the findings and results of research, as set forth in the schedule of the contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.242-71</SECTNO>
              <SUBJECT>Dissemination of contract information.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3042.203-70(b), insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Dissemination of Contract Information (DEC 2003)</HD>

                <P>The Contractor shall not publish, permit to be published, or distribute for public consumption, any information, oral or written, <PRTPAGE P="121"/>concerning the results or conclusions made pursuant to the performance of this contract, without the prior written consent of the Contracting Officer. An electronic or printed copy of any material proposed to be published or distributed shall be submitted to the Contracting Officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.242-72</SECTNO>
              <SUBJECT>Contracting officer's technical representative.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3042.7000, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Contracting Officer's Technical Representative (DEC 2003)</HD>
                <P>(a) The Contracting Officer may designate Government personnel to act as the Contracting Officer's Technical Representative (COTR) to perform functions under the contract such as review or inspection and acceptance of supplies, services, including construction, and other functions of a technical nature. The Contracting Officer will provide a written notice of such designation to the Contractor within five working days after contract award or for construction, not less than five working days prior to giving the contractor the notice to proceed. The designation letter will set forth the authorities and limitations of the COTR under the contract.</P>
                <P>(b) The Contracting Officer cannot authorize the COTR or any other representative to sign documents, such as contracts, contract modifications, etc., that require the signature of the Contracting Officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.245-70</SECTNO>
              <SUBJECT>Government property reports.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3045.505-70, insert the following clause:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Government Property Reports (DEC 2003)</HD>
                <P>(a) The Contractor shall prepare an annual report of Government property in its possession and the possession of its subcontractors.</P>
                <P>(b) The report shall be submitted to the Contracting Officer not later than September 15 of each calendar year on Form DHS F 4220.43, Contractor Report of Government Property.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.247-70</SECTNO>
              <SUBJECT>F.o.b. origin information.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3047.305-70(a), insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">F.O.B. Origin Information (DEC 2003)</HD>
                <P>The offeror shall furnish information with the offer:</P>
                <P>(a) Location of the offeror's actual shipping point(s) (street address, city, state, and zip code) from which supplies will be delivered to the Government;</P>
                <P>(b) Whether the offered shipping point has a private railroad siding, and the name of the rail carrier serving it;</P>
                <P>(c) When the offered shipping point does not have a private siding, the names and addresses of the nearest public rail siding and of the carrier serving it; and</P>
                <P>(d) The quantity of supplies to be shipped from each shipping point.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
              <HD SOURCE="HD3">
                <E T="03">Alternate I</E> (DEC 2003)</HD>
              <P>If delivery is “f.o.b. origin, contractor's facility,” and the designated facility is not covered by the line-haul transportation rate, add the following paragraph to the basic provision:</P>
              <P>(e) The charges required to deliver the shipment to the point where the line-haul rate is applicable.</P>
              <HD SOURCE="HD3">
                <E T="03">Alternate II</E> (Dec. 2003)</HD>
              <P>When delivery is “f.o.b. origin, freight allowed,” add the following paragraph to the basic provision:</P>
              <P>(e) The basis on which transportation charges will be allowed, including the origin and destination from and to which transportation charges will be allowed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3052.247-71</SECTNO>
              <SUBJECT>F.o.b. origin only.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3047.305-70(b), insert the following provision:</P>
              <EXTRACT>
                <HD SOURCE="HD1">F.O.B. Origin Only (DEC 2003)</HD>
                <P>Offers are invited on the basis of f.o.b. origin only. Offers submitted on any other basis will be rejected as nonresponsive.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3052.247-72</SECTNO>
              <SUBJECT>F.o.b. destination only.</SUBJECT>
              <P>As prescribed in (HSAR) 48 CFR 3047.305-70(c), insert the following provision:</P>
              <EXTRACT>
                <FP SOURCE="FP-1">F.O.B. Destination Only (DEC 2003)</FP>
                <P>Offers are invited on the basis of f.o.b. destination only. Offers submitted on any other basis will be rejected as nonresponsive.</P>
              </EXTRACT>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="122"/>
          <EAR>Pt. 3053</EAR>
          <HD SOURCE="HED">PART 3053—FORMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3053.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3053.101</SECTNO>
              <SUBJECT>Requirements for use of forms.</SUBJECT>
              <SECTNO>3053.103</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3053.2—Prescription of Forms</HD>
              <SECTNO>3053.204-70</SECTNO>
              <SUBJECT>Administrative matters.</SUBJECT>
              <SECTNO>3053.222-70</SECTNO>
              <SUBJECT>Application of labor laws to Government acquisitions.</SUBJECT>
              <SECTNO>3053.227-70</SECTNO>
              <SUBJECT>Conveyance of invention rights acquired by the Government.</SUBJECT>
              <SECTNO>3053.245-70</SECTNO>
              <SUBJECT>Contractor report of government property.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3053.3—Illustrations of Forms</HD>
              <SECTNO>3053.303</SECTNO>
              <SUBJECT>Agency forms.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 418b (a) and (b).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>68 FR 67871, Dec. 4, 2003, unless otherwise note.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3053.1—General</HD>
            <SECTION>
              <SECTNO>3053.101</SECTNO>
              <SUBJECT>Requirements for use of forms.</SUBJECT>
              <P>Unless excepted, forms prescribed in (FAR) 48 CFR part 53 and (HSAR) 48 CFR part 3053 are required for use by all OEs.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3053.103</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>Requests for exceptions to forms contained in (FAR) 48 CFR part 53 and to DHS forms in (HSAR) 48 CFR part 3053 shall be submitted, as prescribed in (FAR) 48 CFR 53.103, to the CPO.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3053.2—Prescription of Forms</HD>
            <SECTION>
              <SECTNO>3053.204-70</SECTNO>
              <SUBJECT>Administrative matters.</SUBJECT>
              <P>The following forms are prescribed for use in the closeout of applicable contracts, as specified in (HSAR) 48 CFR 3004.804-570:</P>
              <P>(a) DHS Form 0700-01, Cumulative Claim and Reconciliation Statement. (See (HSAR) 48 CFR 3004.804-570(a)(1).)</P>
              <P>(b) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates, Credits and Other Amounts. (See (HSAR) 48 CFR 3004.570(a)(2).)</P>
              <P>(c) DHS Form 0700-03, Contractor Release. (See (HSAR) 48 CFR 3004.804-570(a)(3).)</P>
            </SECTION>
            <SECTION>
              <SECTNO>3053.222-70</SECTNO>
              <SUBJECT>Application of labor laws to Government acquisitions.</SUBJECT>
              <P>The following form is prescribed for use in connection with the application of labor laws, as specified in (HSAR) 48 CFR 3022.406-9: DHS Form 0070-04, Employee's Claim for Wage Restitution.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3053.227-70</SECTNO>
              <SUBJECT>Conveyance of invention rights acquired by the Government.</SUBJECT>
              <P>The following form is prescribed for including a means for contractors to report inventions made in the course of contract performance, as specified in (HSAR) 48 CFR 3027.305-4: DD Form 882, Report of Inventions and Subcontracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3053.245-70</SECTNO>
              <SUBJECT>Report of Government property.</SUBJECT>
              <P>The following form is prescribed for use by contractors to report Government property, as specified in (HSAR) 48 CFR 3045.505-14: DHS Form 0070-05, Contractor's Report of Government Property.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3053.3—Illustrations of Forms</HD>
            <SECTION>
              <SECTNO>3053.303</SECTNO>
              <SUBJECT>Agency forms.</SUBJECT>

              <P>This section illustrates agency-specified forms. To access these forms go to: <E T="03">http://www.dhs.gov/dhspublic/display?theme=37.</E>
              </P>
              <GPOTABLE CDEF="s100,xs75" COLS="2" OPTS="L2">
                <BOXHD>
                  <CHED H="1">Form name</CHED>
                  <CHED H="1">Form No.</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="01">Cumulative Claim and Reconciliation Statement</ENT>
                  <ENT>DHS Form 0070-01</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Contractor's Assignment of Refunds, Rebates, Credits and Other Amounts</ENT>
                  <ENT>DHS Form 0070-02</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Contractor Release</ENT>
                  <ENT>DHS Form 0070-03</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Employee's Claim for Wage Restitution</ENT>
                  <ENT>DHS Form 0070-04</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Contractor's Report of Government Property</ENT>
                  <ENT>DHS Form 0070-05</ENT>
                </ROW>
                <ROW>
                  <ENT I="01">Report of Inventions and Subcontract</ENT>
                  <ENT>DD 882</ENT>
                </ROW>
              </GPOTABLE>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 34 (10-1-05 Edition)</LRH>
      <RRH>Department of Education</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="123"/>
          <HD SOURCE="HED">CHAPTER 34—DEPARTMENT OF EDUCATION ACQUISITION REGULATION</HD>
          <P>(Parts 3400 to 3499)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>3401</PT>
          <SUBJECT>ED Acquisition Regulation System</SUBJECT>
          <PG>125</PG>
          <PT>3402</PT>
          <SUBJECT>Definitions of words and terms</SUBJECT>
          <PG>126</PG>
          <PT>3403</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>126</PG>
          <PT>3404</PT>
          <SUBJECT>Administrative matters</SUBJECT>
          <PG>127</PG>
          <PT>3405</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>127</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3408</PT>
          <SUBJECT>Required sources of supplies and services</SUBJECT>
          <PG>129</PG>
          <PT>3409</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>129</PG>
          <PT>3410</PT>
          <SUBJECT>Specification standards and other purchase descriptions</SUBJECT>
          <PG>129</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3413</PT>
          <SUBJECT>Small purchase and other simplified purchase procedures</SUBJECT>
          <PG>131</PG>
          <PT>3414</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>131</PG>
          <PT>3415</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>131</PG>
          <PT>3416</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>132</PG>
          <PT>3417</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>133</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3419</PT>
          <SUBJECT>Small business and small disadvantaged business concerns</SUBJECT>
          <PG>134</PG>
          <PT>3424</PT>
          <SUBJECT>Protection of privacy and freedom of informa-tion</SUBJECT>
          <PG>135</PG>
          <PT>3425</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>135</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3427</PT>
          <SUBJECT>Patents, data, and copyrights</SUBJECT>
          <PG>137</PG>
          <PT>3428</PT>
          <SUBJECT>Bonds and insurance</SUBJECT>
          <PG>137<PRTPAGE P="124"/>
          </PG>
          <PT>3432</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>137</PG>
          <PT>3433</PT>
          <SUBJECT>Protests, disputes, and appeals</SUBJECT>
          <PG>138</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3437</PT>
          <SUBJECT>Service contracting</SUBJECT>
          <PG>140</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3442</PT>
          <SUBJECT>Contract administration</SUBJECT>
          <PG>141</PG>
          <PT>3443</PT>
          <SUBJECT>Contract modifications</SUBJECT>
          <PG>141</PG>
          <PT>3445</PT>
          <SUBJECT>Government property</SUBJECT>
          <PG>141</PG>
          <PT>3447</PT>
          <SUBJECT>Transportation</SUBJECT>
          <PG>142</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>3452</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>143</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="125"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 3401</EAR>
          <HD SOURCE="HED">PART 3401—ED ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>3401.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3401.1—Purpose, Authority, Issuance</HD>
              <SECTNO>3401.103</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>3401.104</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
              <SECTNO>3401.104-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <SECTNO>3401.104-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3401.3—Agency Acquisition Regulations</HD>
              <SECTNO>3401.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3401.4—Deviations</HD>
              <SECTNO>3401.401</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <SECTNO>3401.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>3401.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3401.5—Agency and Public Participation</HD>
              <SECTNO>3401.501</SECTNO>
              <SUBJECT>Solicitation of agency and public views.</SUBJECT>
              <SECTNO>3401.501-2</SECTNO>
              <SUBJECT>Opportunity for public comments.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3401.6—Contracting Authority and Responsibilities</HD>
              <SECTNO>3401.601</SECTNO>
              <SUBJECT>General.</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>53 FR 19119, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>3401.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>The Federal Acquisition Regulation System brings together, in title 48 of the Code of Federal Regulations, the acquisition regulations applicable to all executive agencies of the Government. This part establishes a system of Department of Education (ED) acquisition regulations, referred to as the EDAR, for the codification and publication of policies and procedures of ED which implement and supplement the Federal Acquisition Regulation (FAR).</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3401.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>3401.103</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>The FAR and the EDAR apply to all acquisitions as defined in FAR part 2 except where expressly excluded.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3401.104</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3401.104-2</SECTNO>
              <SUBJECT>Arrangement of regulations.</SUBJECT>
              <P>The regulations in this chapter may be referred to as the Department of Education Acquisition Regulation or the EDAR. References to the EDAR are made in the same manner as references to the FAR (See FAR 1.104-2(c)).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3401.104-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <P>Copies of the EDAR in the <E T="04">Federal Register</E> and Code of Federal Regulations (CFR) form may be purchased from the Superintendent of Documents, Government Printing Office (GPO), Washington, DC 20402.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3401.3—Agency Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>3401.304</SECTNO>
              <SUBJECT>Agency control and compliance procedures.</SUBJECT>
              <P>The EDAR is subject to the same review procedures within the Department as other regulations of the Department.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3401.4—Deviations</HD>
            <SECTION>
              <SECTNO>3401.401</SECTNO>
              <SUBJECT>Definition.</SUBJECT>
              <P>A deviation from the EDAR has the same meaning as a deviation from the FAR.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3401.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <P>An individual deviation from the FAR or the EDAR must be approved by the Head of the Contracting Activity (HCA).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3401.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>A class deviation from the FAR or the EDAR must be approved by the Procurement Executive.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="126"/>
            <HD SOURCE="HED">Subpart 3401.5—Agency and Public Participation</HD>
            <SECTION>
              <SECTNO>3401.501</SECTNO>
              <SUBJECT>Solicitation of agency and public views.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3401.501-2</SECTNO>
              <SUBJECT>Opportunity for public comments.</SUBJECT>
              <P>Unless the Secretary of Education (Secretary) approves an exception, the Department issues the EDAR, including any amendments to the EDAR, in accordance with the procedures for public participation in 5 U.S.C. 553.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3401.6—Contracting Authority and Responsibilities</HD>
            <SECTION>
              <SECTNO>3401.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>Contracting authority vests with the Secretary. The Secretary has delegated this authority to the Deputy Under Secretary for Management who has delegated this authority, with the right to redelegate, to the Procurement Executive and the HCA.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3402</EAR>
          <HD SOURCE="HED">PART 3402—DEFINITIONS OF WORDS AND TERMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3402.1—Definitions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3402.101</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3402.2—Definitions Clause</HD>
              <SECTNO>3402.201</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), unless otherwise noted.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3402.1—Definitions</HD>
            <SECTION>
              <SECTNO>3402.101</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3402.2—Definitions Clause</HD>
            <SECTION>
              <SECTNO>3402.201</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.202-1, Definitions, in all solicitations and contracts in lieu of the clause in FAR 52.202-1, except—</P>
              <P>(a) A fixed-price research and development contract that is expected to be $2,500 or less; or</P>
              <P>(b) A purchase order.</P>
              <CITA>[53 FR 19119, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3403</EAR>
          <HD SOURCE="HED">PART 3403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3403.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3403.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
              <SECTNO>3403.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3403.2—Contractor Gratuities To Government Personnel</HD>
              <SECTNO>3403.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3403.3—Reports of Suspected Antitrust Violations</HD>
              <SECTNO>3403.301</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3403.4—Contingent Fees</HD>
              <SECTNO>3403.409</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
              <SECTNO>3403.602</SECTNO>
              <SUBJECT>Exceptions.</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>53 FR 19120, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3403.1—Safeguards</HD>
            <SECTION>
              <SECTNO>3403.101</SECTNO>
              <SUBJECT>Standards of conduct.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3403.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <P>ED regulations on standards of conduct are in 34 CFR part 73.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3403.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>3403.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <P>(a) Suspected violations of the Gratuities clause must be reported to the HCA in writing detailing the circumstances.</P>
              <P>(b) The HCA evaluates the report with the assistance of the Designated Agency Ethics Officer. If the HCA determines that a violation may have occurred, the HCA refers the report to the Procurement Executive for disposition.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="127"/>
            <HD SOURCE="HED">Subpart 3403.3—Reports of Suspected Antitrust Violations</HD>
            <SECTION>
              <SECTNO>3403.301</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) Any Departmental personnel who have evidence of a suspected antitrust violation in an acquisition shall—</P>
              <P>(1) Report that evidence through the HCA to the Office of the General Counsel for referral to the Attorney General; and</P>
              <P>(2) Provide a copy of that evidence to the Procurement Executive.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3403.4—Contingent Fees</HD>
            <SECTION>
              <SECTNO>3403.409</SECTNO>
              <SUBJECT>Misrepresentations or violations of the Covenant Against Contingent Fees.</SUBJECT>
              <P>Any Departmental personnel who suspect or have evidence of attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or other violation of the Covenant Against Contingent Fees, shall report the matter promptly in accordance with the procedures in 3403.203.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
            <SECTION>
              <SECTNO>3403.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>Exceptions under FAR 3.602 must be approved by the Deputy Under Secretary for Management.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3404</EAR>
          <HD SOURCE="HED">PART 3404—ADMINISTRATIVE MATTERS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3404.1—Contract Execution</HD>
            <SECTION>
              <SECTNO>3404.170</SECTNO>
              <SUBJECT>Ratification of unauthorized contract awards.</SUBJECT>
              <P>The execution of otherwise proper contracts made by individuals without contracting authority, or by contracting officers acting in excess of the limits of their delegated authority, may be later ratified by the Department. To be effective, a ratification must be—</P>
              <P>(a) A written document clearly stating that ratification of a previously unauthorized act is intended; and</P>
              <P>(b) Signed by the HCA, or higher level official of the Department, who could have granted authority to enter into the commitment at the time it was made and still has the power to do so.</P>
              <CITA>[53 FR 19120, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3405</EAR>
          <HD SOURCE="HED">PART 3405—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3405.2—Synopses of Proposed Contract Actions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3405.270</SECTNO>
              <SUBJECT>Notices to perform market surveys.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3405.5—Paid Advertisements</HD>
              <SECTNO>3405.502</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>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3405.2—Synopses of Proposed Contract Actions</HD>
            <SECTION>
              <SECTNO>3405.270</SECTNO>
              <SUBJECT>Notices to perform market surveys.</SUBJECT>
              <P>(a) If a sole-source contract is anticipated, the issuance of a notice of a proposed contract action that is detailed enough to permit submission of meaningful responses and subsequent evaluation of the responses by the Government, constitutes an acceptable market survey.</P>
              <P>(b) The notice must include—</P>
              <P>(1) A clear statement of the supplies or services to be procured;</P>
              <P>(2) Any capabilities or experience required of a contractor and any other factors relevant to those requirements; and</P>
              <P>(3) The criteria, including relative weights, to be used in the evaluation of responses.</P>
              <CITA>[53 FR 19120, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="128"/>
            <HD SOURCE="HED">Subpart 3405.5—Paid Advertisements</HD>
            <SECTION>
              <SECTNO>3405.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>Authority to approve publication of paid advertisements in newspapers is delegated to the HCA.</P>
              <CITA>[53 FR 19120, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="129"/>
        <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 3408</EAR>
          <HD SOURCE="HED">PART 3408—REQUIRED SOURCES OF SUPPLIES AND SERVICES</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301, 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3408.8—Acquisition of Printing and Related Supplies</HD>
            <SECTION>
              <SECTNO>3408.870</SECTNO>
              <SUBJECT>Printing clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.208-70, Printing, in all solicitations and contracts other than purchase orders.</P>
              <CITA>[53 FR 19120, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3409</EAR>
          <HD SOURCE="HED">PART 3409—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3409.4—Debarment, Suspension, and Ineligibility</HD>
              <SECTNO>3409.403</SECTNO>
              <SUBJECT>[Reserved]</SUBJECT>
              <SECTNO>3409.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>3409.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3409.5—Organizational Conflicts of Interest</HD>
              <SECTNO>3409.502</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>3409.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <SECTNO>3409.507</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>3409.570</SECTNO>
              <SUBJECT>Offeror certification provision.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c), unless otherwise noted.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 19120, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3409.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>3409.403</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>3409.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3409.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>The debarring official may enter into a settlement with a contractor under which the contractor voluntarily excludes itself from, or restricts its participation in, Government contracting and subcontracting for a specified period.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3409.5—Organizational Conflicts of Interest</HD>
            <SECTION>
              <SECTNO>3409.502</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>This subpart applies to all ED contracts except contracts with other Federal agencies. However, this subpart applies to contracts with the Small Business Administration (SBA) under the 8(a) program.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3409.503</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>The HCA is designated as the official who may waive any general rule or procedure of FAR subpart 9.5 or of this subpart.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3409.507</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) If the effects of a potential or actual conflict of interest cannot be avoided, neutralized, or mitigated before award, the prospective contractor is not eligible for that award. If a potential or actual conflict of interest is identified after award and the effects cannot be avoided, neutralized, or mitigated, ED terminates the contract.</P>
              <P>(b) The Procurement Executive is designated as the official to conduct reviews and make final decisions under FAR 9.507(c)(4).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3409.570</SECTNO>
              <SUBJECT>Offeror certification provision.</SUBJECT>
              <P>The contracting officer shall insert the provision in 3452.209-70, Organizational Conflict of Interest, in all solicitations.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3410</EAR>
          <HD SOURCE="HED">PART 3410—SPECIFICATION STAND-ARDS AND OTHER PURCHASE DESCRIPTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3410.7—Use of Metric System</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3410.701</SECTNO>
              <SUBJECT>Policy of the Department of Education with respect to use of the metric system.</SUBJECT>
              <SECTNO>3410.702</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>3410.703</SECTNO>
              <SUBJECT>Responsibilities of the Department of Education with respect to use of the metric system.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>15 U.S.C. 205b.</P>
          </AUTH>
          <SOURCE>
            <PRTPAGE P="130"/>
            <HD SOURCE="HED">Source:</HD>
            <P>58 FR 30088, May 25, 1993, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3410.7—Use of Metric System</HD>
            <SECTION>
              <SECTNO>3410.701</SECTNO>
              <SUBJECT>Policy of the Department of Education with respect to use of the metric system.</SUBJECT>
              <P>It is the policy of the Department of Education to encourage use of the metric system in industry standards, consistent with the legal status of this system as the preferred system of weights and measures for United States trade and commerce.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3410.702</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Department</E> means the United States Department of Education.</P>
              <P>
                <E T="03">Metric system</E> (a) This term means the International System of Units established by the General Conference of Weights and Measures in 1960.</P>
              <P>(b) The units are listed in Federal Standard 376A, “Preferred Metric Units for General Use by the Federal Government.”</P>
            </SECTION>
            <SECTION>
              <SECTNO>3410.703</SECTNO>
              <SUBJECT>Responsibilities of the Department of Education with respect to use of the metric system.</SUBJECT>
              <P>(a) Consistent with the Federal Acquisition Regulation System, contracting officers of the Department shall—</P>
              <P>(1) Accept, without prejudice, products and services dimensioned in metric units if they are offered at competitive prices and meet the needs of the Department; and</P>
              <P>(2) Ensure that acquisition planning considers these products and services.</P>
              <P>(b) Consistent with the policy in the Metric Conversion Act, as amended, and in 3410.701, if the metric system is the accepted system of weights and measures in a particular industry, the Department ensures that solicitations include specifications and purchase descriptions stated in metric units of measurement.</P>
              <P>(c) If the metric system is not the accepted system of weights and measures in a particular industry, the Department ensures that solicitations for procurements in excess of the small purchase threshold permit offerors to propose products or services in metric units of measurement, except when to do this would be detrimental to the purpose of the affected program.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="131"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 3413</EAR>
          <HD SOURCE="HED">PART 3413—SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3413.1—General</HD>
            <SECTION>
              <SECTNO>3413.107</SECTNO>
              <SUBJECT>Solicitation and evaluation of quotations.</SUBJECT>
              <P>(a)-(c) [Reserved]</P>
              <P>(d) <E T="03">Information provided by ED.</E> If ED provides information to a potential quoter concerning a request for quotations, that information must also be provided to all other potential quoters, by amending the request, if—</P>
              <P>(1) The information is necessary to quoters in submitting quotations; or</P>
              <P>(2) The lack of the information would be otherwise prejudicial to other potential quoters.</P>
              <P>(e) <E T="03">Late quotations.</E> The procedures in FAR 15.412 must be used for quotations received after the time specified for receipt at the contracting activity, except that late quotations may be accepted if the contracting officer determines in writing prior to the award that it is in the best interest of the Government to do so.</P>
              <CITA>[53 FR 19121, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3414</EAR>
          <HD SOURCE="HED">PART 3414—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3414.4—Opening of Bids and Award of Contract</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3414.406</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
              <SECTNO>3414.406-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3414.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>3414.406</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3414.406-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>(a)-(d) [Reserved]</P>
              <P>(e) Authority is delegated to the HCA to make determinations under FAR 14.406-3 (a) through (d).</P>
              <CITA>[53 FR 19121, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3415</EAR>
          <HD SOURCE="HED">PART 3415—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3415.4—Solicitation and Receipt of Proposals and Quotations</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3415.406-3</SECTNO>
              <SUBJECT>Part II—Contract clauses.</SUBJECT>
              <SECTNO>3415.407</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <SECTNO>3415.413-2</SECTNO>
              <SUBJECT>Alternate II.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3415.5—Unsolicited Proposals</HD>
              <SECTNO>3415.505</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <SECTNO>3415.506</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3415.9—Profit</HD>
              <SECTNO>3415.902</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>53 FR 19121, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3415.4—Solicitation and Receipt of Proposals and Quotations</HD>
            <SECTION>
              <SECTNO>3415.406-3</SECTNO>
              <SUBJECT>Part II—Contract clauses.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.215-33, Order of Precedence, in all contracts other than purchase orders. The contracting officer shall use this clause in lieu of the clause in FAR 52.215-33.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3415.407</SECTNO>
              <SUBJECT>Solicitation provisions.</SUBJECT>
              <P>(a) The Freedom of Information Act (FOIA), 5 U.S.C. 552, may require ED to release data contained in an offeror's proposal even if the offeror has identified the data as restricted in accordance with the provision in FAR 52.215-12. The solicitation provision in 3452.215-70, Release of Restricted Data, informs offerors that ED is required to consider release of restricted data under FOIA and Executive Order 12600.</P>

              <P>(b) The contracting officer shall insert the provision in 3452.215-70, in all solicitations that include a reference <PRTPAGE P="132"/>to FAR 52.215-12, Restriction on Disclosure and Use of Data.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3415.413-2</SECTNO>
              <SUBJECT>Alternate II.</SUBJECT>
              <P>The Department uses the Alternate II procedures in FAR 15.413-2.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3415.5—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>3415.505</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <P>(a)-(c) [Reserved]</P>
              <P>(d) Each unsolicited proposal must contain the following certification:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Unsolicited Proposal 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 Education has been within the limits of appropriate advance guidance set forth in FAR 15.504.</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 must be signed by a responsible person authorized to enter into contracts on behalf of the organization)</FP>
              </EXTRACT>
            </SECTION>
            <SECTION>
              <SECTNO>3415.506</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b)(1) The HCA is the contact point to coordinate the receipt and handling of unsolicited proposals.</P>
              <P>(2) Offerors shall direct unsolicited proposals to the HCA.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3415.9—Profit</HD>
            <SECTION>
              <SECTNO>3415.902</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) The contracting officer shall establish the profit or fee portion of the Government prenegotiation objective in accordance with 48 CFR chapter 3, part 315, subpart 315.9 (Department of Health and Human Services Acquisition Regulation).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3416</EAR>
          <HD SOURCE="HED">PART 3416—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3416.3—Cost-Reimbursement Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3416.303</SECTNO>
              <SUBJECT>Cost-sharing contracts.</SUBJECT>
              <SECTNO>3416.307</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3416.6—Time-and-Materials, Labor-Hour and Letter Contracts</HD>
              <SECTNO>3416.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
              <SECTNO>3416.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3416.7—Agreements</HD>
              <SECTNO>3416.701</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <SECTNO>3416.702</SECTNO>
              <SUBJECT>Basic agreements.</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>53 FR 19121, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3416.3—Cost-Reimbursement Contracts</HD>
            <SECTION>
              <SECTNO>3416.303</SECTNO>
              <SUBJECT>Cost-sharing contracts.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) <E T="03">Application.</E> Costs that are not reimbursed under a cost-sharing contract may not be charged to the Government under any other grant, contract, cooperative agreement, or other arrangement.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3416.307</SECTNO>
              <SUBJECT>Contract clauses.</SUBJECT>
              <P>(a) If the clause in FAR 52.216-7, Allowable cost and Payment, is used in a contract with a hospital, the contracting officer shall modify the clause by deleting the words “subpart 31.2 of the Federal Acquisition Regulation (FAR)” from paragraph (a) and substituting “34 CFR part 74, appendix E.”</P>
              <P>(b) The contracting officer shall insert the clause in 3452.216-70, Additional Cost Principles, in all solicitations of and resultant cost-reimbursement contracts with nonprofit organizations other than educational institutional, hospitals, or organizations listed in Attachment C to Office of Management and Budget Circular A-122.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="133"/>
            <HD SOURCE="HED">Subpart 3416.6—Time-and-Materials, Labor-Hour and Letter Contracts</HD>
            <SECTION>
              <SECTNO>3416.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3416.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>If the HCA is to sign a letter contract as the contracting officer, the Procurement Executive executes the written determination under FAR 16.603-3.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3416.7—Agreements</HD>
            <SECTION>
              <SECTNO>3416.701</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.216-71, Negotiated Overhead Rates—Fixed, in contracts with organizations that have fixed indirect cost rates with carryforward adjustments approved by the Government agency responsible for negotiating the organization's indirect cost rates.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3416.702</SECTNO>
              <SUBJECT>Basic agreements.</SUBJECT>
              <P>(a)-(d) [Reserved]</P>
              <P>(e) <E T="03">Negotiated overhead rates.</E> Basic agreements may include negotiated overhead rates for cost-reimbursement contracts. If a negotiated overhead rate is included, the bases to which the rate applies and the period of applicability must also be stated. All pertinent provisions such as final rates for past periods, provisional rates for current or future periods, ceilings, and any specific items to be treated as indirect costs must also be included.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3417</EAR>
          <HD SOURCE="HED">PART 3417—SPECIAL CONTRACTING METHODS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3417.2—Options</HD>
            <SECTION>
              <SECTNO>3417.207</SECTNO>
              <SUBJECT>Exercise of options.</SUBJECT>
              <P>If any provision in a contract requires that an option may only be exercised within a specified time after funds become available, the same provision must specify that the date on which funds are available means the date funds become available to the contracting officer for obligation.</P>
              <CITA>[53 FR 19122, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="134"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 3419</EAR>
          <HD SOURCE="HED">PART 3419—SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3419.7—Subcontracting With Small Business and Small Disadvantaged Business Concerns</HD>
              <SECTNO>3419.705</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer under the subcontracting assistance program.</SUBJECT>
              <SECTNO>3419.705-2</SECTNO>
              <SUBJECT>Determining the need for a subcontracting plan.</SUBJECT>
              <SECTNO>3419.708</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3419.8—Contracting With the Small Business Administration (The 8(a) Program)</HD>
              <SECTNO>3419.801</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3419.870</SECTNO>
              <SUBJECT>Acquisition of technical requirements.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C.; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 19122, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3419.7—Subcontracting With Small Business and Small Disadvantaged Business Concerns</HD>
            <SECTION>
              <SECTNO>3419.705</SECTNO>
              <SUBJECT>Responsibilities of the contracting officer under the subcontracting assistance program.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>3419.705-2</SECTNO>
              <SUBJECT>Determining the need for a subcontracting plan.</SUBJECT>
              <P>Incremental funding actions must be included in determining whether an acquisition meets the dollar threshold requiring a subcontracting plan.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3419.708</SECTNO>
              <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) If the clause “Small Business and Small Disadvantaged Business Subcontracting Plan” (see FAR 52.219-9) must be used in a solicitation, a notification must be included in the solicitation that advises prospective offerors that subcontracting plans may be requested from all concerns determined to be in the competitive range.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3419.8—Contracting With the Small Business Administration (The 8(a) Program)</HD>
            <SECTION>
              <SECTNO>3419.801</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The signing of a contract document by the Small Business Administration (SBA) may be accepted by the contracting officer as the certification under FAR 19.801(b)(1).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3419.870</SECTNO>
              <SUBJECT>Acquisition of technical requirements.</SUBJECT>
              <P>(a) <E T="03">Source selection.</E> (1) Except where SBA selects a concern for an award under section 8(a) or under the circumstances in paragraph (a)(5) of this section, ED selects a nominee for an 8(a) award by SBA through a limited technical competition if technical aspects, methodology, or approach are of primary importance rather than price.</P>
              <P>(2) If limited technical competition is used, the concerns to be included are decided by the contracting officer in consultation with OSDBU and the Contracting Officer's Technical Representative (COTR).</P>
              <P>(3)(i) ED may require the concerns participating in the limited technical competition to submit written technical proposals. Otherwise, ED holds oral discussions with the participating concerns.</P>
              <P>(ii) In a limited technical competition, cost factors may not be included in the technical proposals nor considered during technical discussions of the proposals.</P>
              <P>(4) ED evaluates the concerns participating in a limited technical competition based on the written technical proposals or oral discussions. ED nominates, to SBA for subcontract award, the concern that the contracting officer determines to have the best technical capability to perform the contract requirements.</P>

              <P>(5) Instead of selecting a nominee through limited technical competition, ED may nominate one 8(a) concern to SBA if that concern has exclusive or predominant capability among 8(a) <PRTPAGE P="135"/>concerns by reason of experience, specialized facilities, or technical competence to perform the work within the time required.</P>
              <P>(6) Each concern nominated for a specific 8(a) requirement must be approved by OSDBU or SBA for that particular requirement before the contracting officer initiates negotiation of 8(a) award terms with the concern.</P>
              <P>(b) <E T="03">Negotiation of 8(a) award.</E> The contracting officer shall give all possible assistance required by SBA with respect to SBA's negotiation of an 8(a) award.</P>
              <P>(c) <E T="03">Delegated 8(a) award administration.</E> If SBA delegates responsibility to ED for administration of the 8(a) award, ED informs SBA of all 8(a) award modifications, progress payments, problems experienced by the subcontractor, and other pertinent matters requested by SBA.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3424</EAR>
          <HD SOURCE="HED">PART 3424—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3424.1—Protection of Individual Privacy</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3424.103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3424.2—Freedom of Information Act</HD>
              <SECTNO>3424.201</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>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3424.1—Protection of Individual Privacy</HD>
            <SECTION>
              <SECTNO>3424.103</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) If the Privacy Act of 1974 applies to a contract, the contracting officer shall specify in the contract the disposition to be made of the system or systems of records 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 ED, or to keep the records but take certain measures to keep the records confidential and protect the individuals' privacy.</P>

              <P>(b) If a notice of the system of records 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 notice is published, unless the contracting officer determines, in writing, that portions of the contract may proceed without maintaining information subject to the Privacy Act. In this case, the contracting officer may—</P>
              <P>(1) Award the contract, authorizing performance only of those portions not subject to the Privacy Act; and</P>
              <P>(2) After the notice is published and effective, authorize performance of the remainder of the contract.</P>
              <CITA>[53 FR 19123, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3424.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>3424.201</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>The Department's regulations implementing the Freedom of Information Act, 5 U.S.C. 552, are in 34 CFR part 5.</P>
              <CITA>[53 FR 19123, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3425</EAR>
          <HD SOURCE="HED">PART 3425—FOREIGN ACQUISITION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3425.1—Buy American Act—Supplies</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3425.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3425.3—Balance of Payments Program</HD>
              <SECTNO>3425.302</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>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3425.1—Buy American Act—Supplies</HD>
            <SECTION>
              <SECTNO>3425.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) [Reserved]</P>
              <P>(b) The HCA approves determinations under FAR 25.120(a)(4).</P>
              <CITA>[53 FR 19123, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <PRTPAGE P="136"/>
            <HD SOURCE="HED">Subpart 3425.3—Balance of Payments Program</HD>
            <SECTION>
              <SECTNO>3425.302</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>The HCA is designated to make all determinations under FAR 25.302. This authority may not be redelegated.</P>
              <CITA>[53 FR 19123, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="137"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 3427</EAR>
          <HD SOURCE="HED">PART 3427—PATENTS, DATA, AND COPYRIGHTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3427.4—Rights in Data and Copyrights</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3427.470</SECTNO>
              <SUBJECT>Publication and publicity clause.</SUBJECT>
              <SECTNO>3427.471</SECTNO>
              <SUBJECT>Paperwork Reduction Act clause.</SUBJECT>
              <SECTNO>3427.472</SECTNO>
              <SUBJECT>Advertising of awards 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>53 FR 19123, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3427.4—Rights in Data and Copyrights</HD>
            <SECTION>
              <SECTNO>3427.470</SECTNO>
              <SUBJECT>Publication and publicity clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.227-70, Publication and Publicity, in all solicitations and contracts other than purchase orders.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3424.471</SECTNO>
              <SUBJECT>Paperwork Reduction Act clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.227-71, Paperwork Reduction Act, in all solicitations and contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3427.472</SECTNO>
              <SUBJECT>Advertising of awards clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.227-72, Advertising of Awards, in all solicitations and contracts other than purchase orders.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3428</EAR>
          <HD SOURCE="HED">PART 3428—BONDS AND INSURANCE</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3428.3—Insurance</HD>
            <SECTION>
              <SECTNO>3428.370</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.228-70, Required Insurance, in all solicitations and resultant cost-reimbursement contracts.</P>
              <CITA>[53 FR 19123, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3432</EAR>
          <HD SOURCE="HED">PART 3432—CONTRACT FINANCING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3432.1—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3432.170</SECTNO>
              <SUBJECT>Method of payment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3432.4—Advance Payments</HD>
              <SECTNO>3432.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>3432.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3432.7—Contract Funding</HD>
              <SECTNO>3432.704</SECTNO>
              <SUBJECT>Limitation of cost or funds.</SUBJECT>
              <SECTNO>3432.770</SECTNO>
              <SUBJECT>Prohibition against the use of ED funds to influence legislation or appropriations.</SUBJECT>
              <SECTNO>3432.771</SECTNO>
              <SUBJECT>Provision for incremental funding.</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>53 FR 19123, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3432.1—General</HD>
            <SECTION>
              <SECTNO>3432.170</SECTNO>
              <SUBJECT>Method of payment.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.232-72, Method of Payment, in all solicitations and contracts.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3432.4—Advance Payments</HD>
            <SECTION>
              <SECTNO>3432.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a)-(d) [Reserved]</P>
              <P>(e) The HCA is designated to make determinations under FAR 32.402(c)(1)(iii)(A). This authority may not be redelegated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3432.407</SECTNO>
              <SUBJECT>Interest.</SUBJECT>
              <P>The HCA is designated to authorize advance payments without interest under FAR 32.407(d).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3432.7—Contract Funding</HD>
            <SECTION>
              <SECTNO>3432.704</SECTNO>
              <SUBJECT>Limitation of cost or funds.</SUBJECT>
              <P>(a) Under the circumstances in FAR 32.704(a)(1), the contractor shall submit the following information in writing to the contracting officer:</P>
              <P>(1) Name and address of the contractor.<PRTPAGE P="138"/>
              </P>
              <P>(2) Contract number and expiration date.</P>
              <P>(3) Contract items and amounts that will exceed the estimated cost of the contract or the limit of the funds allotted.</P>
              <P>(4) The elements of cost that changed from the original estimate (for example: labor, material, travel, overhead), 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.</P>
              <P>(v) Amount of adjustment.</P>
              <P>(5) The factors responsible for the increase, such as error in estimate or changed conditions.</P>
              <P>(6) The latest date by which funds must be available to the contractor to avoid delays in performance, work stoppage, or other impairments.</P>
              <P>(b) A fixed fee provided in a contract may not be changed if a cost overrun is funded. Changes in a fixed fee may be made only to reflect changes in the scope of work that justify an increase or decrease in the fee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3432.770</SECTNO>
              <SUBJECT>Prohibition against the use of ED funds to influence legislation or appropriations.</SUBJECT>
              <P>The contracting officer shall insert the clause at 3452.232-70, Prohibition Against the Use of ED Funds to Influence Legislation or Appropriations, in contracts with educational institutions, hospitals, and State and local governments. Contracts with commercial and nonprofit organizations shall be subject to the legislative lobbying prohibitions contained in FAR 31.205-22 and Office of Management and Budget Circular A-122, respectively.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3432.771</SECTNO>
              <SUBJECT>Provision for incremental funding.</SUBJECT>
              <P>The contracting officer shall insert the provision in 3452.232-71, Incremental Funding, in a solicitation if a cost-reimbursement contract using incremental funding is contemplated.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3433</EAR>
          <HD SOURCE="HED">PART 3433—PROTESTS, DISPUTES, AND APPEALS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3433.1—Protests</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3433.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>3433.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3433.2—Disputes and Appeals</HD>
              <SECTNO>3433.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>3433.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <SECTNO>3433.214</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>53 FR 19124, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3433.1—Protests</HD>
            <SECTION>
              <SECTNO>3433.101</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Filed,</E> as used in this subpart, means that a document has been received by the contracting officer, the General Accounting Office (GAO), or the General Services Administration Board of Contract Appeals (GSBCA).</P>
            </SECTION>
            <SECTION>
              <SECTNO>3433.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <P>(a)(1) Protests to ED based on alleged improprieties in any type of solicitation that are apparent before bid opening or the closing date for receipt of proposals, must be filed before bid opening or the closing date for receipt of proposals. In the case of negotiated acquisitions, protests based on alleged improprieties that do not exist in the initial solicitation, but that are added later, must be filed not later than the next closing date for receipt of proposals following the addition. In other cases, protests to ED must be filed not later than ten (10) Federal Government working days after a basis for protest is known or should have been known, whichever is earlier.</P>
              <P>(b) With the concurrence of the HCA, the contracting officer is authorized to make a determination, using the criteria in FAR 33.103(a), to award a contract before resolution of a protest.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3433.2—Disputes and Appeals</HD>
            <SECTION>
              <SECTNO>3433.203</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>

              <P>The General Services Administration Board of Contract Appeals (GSBCA) is designated to hear any appeal from a final decision of a contracting officer issued pursuant to the “Disputes” clause in a contract. The rules and regulations of the GSBCA are in 48 CFR <PRTPAGE P="139"/>chapter 5, appendix B, and govern the processing of these appeals.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3433.212</SECTNO>
              <SUBJECT>Contracting officer's duties upon appeal.</SUBJECT>
              <P>The Office of the General Counsel is designated as the Government Trial Attorney to represent the Government in the defense of appeals before the GSBCA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3433.214</SECTNO>
              <SUBJECT>Contract clause.</SUBJECT>
              <P>The contracting officer shall use the clause in FAR 52.233-1, Disputes, with its Alternate I.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="140"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 3437</EAR>
          <HD SOURCE="HED">PART 3437—SERVICE CONTRACTING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3437.1—Service Contracts—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3437.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3437.2—Consulting Services</HD>
              <SECTNO>3437.270</SECTNO>
              <SUBJECT>Consulting services reporting clause.</SUBJECT>
              <SECTNO>3437.271</SECTNO>
              <SUBJECT>Services of consultants 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>53 FR 19124, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3437.1—Service Contracts—General</HD>
            <SECTION>
              <SECTNO>3437.102</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>If a service contract requires one or more end items of supply, FAR subpart 37.1 and this subpart apply only to the required services.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3437.2—Consulting Services</HD>
            <SECTION>
              <SECTNO>3437.270</SECTNO>
              <SUBJECT>Consulting services reporting clause.</SUBJECT>
              <P>The contracting officer shall include the clause in 3452.237-70, Identification of Reports Under Consulting Services Contracts, in all solicitations and contracts for consulting services.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3437.271</SECTNO>
              <SUBJECT>Services of consultants clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.237-71, Services of Consultants, in all solicitations and resultant cost-reimbursement contracts.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="141"/>
        <HD SOURCE="HED">SUBCHAPTER G—CONTRACT MANAGEMENT</HD>
        <PART>
          <EAR>Pt. 3442</EAR>
          <HD SOURCE="HED">PART 3442—CONTRACT ADMINISTRATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3442.7—Indirect Cost Rates</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3442.705</SECTNO>
              <SUBJECT>Final indirect cost rates.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3442.70—Contract Monitoring</HD>
              <SECTNO>3442.7001</SECTNO>
              <SUBJECT>Withholding of contract payments clause.</SUBJECT>
              <SECTNO>3442.7002</SECTNO>
              <SUBJECT>Litigation and claims clause.</SUBJECT>
              <SECTNO>3442.7003</SECTNO>
              <SUBJECT>Delays clause.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3442.71—Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities</HD>
              <SECTNO>3442.7101</SECTNO>
              <SUBJECT>Policy and 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>53 FR 19124, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3442.7—Indirect Cost Rates</HD>
            <SECTION>
              <SECTNO>3442.705</SECTNO>
              <SUBJECT>Final indirect cost rates.</SUBJECT>
              <P>The Chief, Cost Determination Branch, Grants and Contracts Service, is delegated the authority to establish final indirect cost rates under FAR 42.705-1 and 42.705-2.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3442.70—Contract Monitoring</HD>
            <SECTION>
              <SECTNO>3442.7001</SECTNO>
              <SUBJECT>Withholding of contract payments clause.</SUBJECT>
              <P>(a) The contracting officer shall insert the clause in 3452.242-72, Withholding of Contract Payments, in all solicitations and contracts other than purchase orders.</P>
              <P>(b) ED may withhold contract payments if any report required to be submitted by the contractor is overdue, or if the contractor fails to perform or deliver work or services as required by the contract.</P>
              <P>(c) The contracting officer shall notify the contractor in writing that payments are being withheld in accordance with the clause.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3442.7002</SECTNO>
              <SUBJECT>Litigation and claims clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.242-70, Litigation and Claims, in all solicitations and resultant cost-reimbursement contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>3442.7003</SECTNO>
              <SUBJECT>Delays clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.242-71, Notice to the Government of Delays, in all solicitations and contracts other than purchase orders.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3442.71—Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities</HD>
            <SECTION>
              <SECTNO>3442.7101</SECTNO>
              <SUBJECT>Policy and clause.</SUBJECT>
              <P>(a) It is the policy of ED that all meetings, conferences, and seminars be accessible to persons with disabilities.</P>
              <P>(b) The contracting officer shall insert the clause in 3452.242-73, Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities, in all solicitations and contracts.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3443</EAR>
          <HD SOURCE="HED">PART 3443—CONTRACT MODIFICATIONS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SECTION>
            <SECTNO>3443.106</SECTNO>
            <SUBJECT>Contract clause.</SUBJECT>
            <P>The contracting officer shall insert the clause in 3452.243-70, Key Personnel, in all solicitations and resultant cost-reimbursement contracts.</P>
            <CITA>[53 FR 19125, May 26, 1988]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 3445</EAR>
          <HD SOURCE="HED">PART 3445—GOVERNMENT PROPERTY</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <PRTPAGE P="142"/>
            <HD SOURCE="HED">Subpart 3445.4—Contractor Use and Rental of Government Property</HD>
            <SECTION>
              <SECTNO>3445.405</SECTNO>
              <SUBJECT>Contracts with foreign governments or international organizations.</SUBJECT>
              <P>Requests by, or for the benefit of, foreign governments or international organizations to use ED production and research property must be approved by the HCA. The HCA shall determine the amount of cost to be recovered or rental charged, if any, based on the facts and circumstances of each case.</P>
              <CITA>[53 FR 19125, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 3447</EAR>
          <HD SOURCE="HED">PART 3447—TRANSPORTATION</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 301; 40 U.S.C. 486(c).</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3447.70—Foreign Travel</HD>
            <SECTION>
              <SECTNO>3447.7000</SECTNO>
              <SUBJECT>Foreign travel clause.</SUBJECT>
              <P>The contracting officer shall insert the clause in 3452.247-70, Foreign Travel, in all solicitations and resultant cost-reimbursement contracts.</P>
              <CITA>[53 FR 19125, May 26, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="143"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        <PART>
          <EAR>Pt. 3452</EAR>
          <HD SOURCE="HED">PART 3452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 3452.2—Texts of Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>3452.202-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>3452.208-70</SECTNO>
              <SUBJECT>Printing.</SUBJECT>
              <SECTNO>3452.209-70</SECTNO>
              <SUBJECT>Organizational conflict of interest.</SUBJECT>
              <SECTNO>3452.215-33</SECTNO>
              <SUBJECT>Order of precedence.</SUBJECT>
              <SECTNO>3452.215-70</SECTNO>
              <SUBJECT>Release of restricted data.</SUBJECT>
              <SECTNO>3452.216-70</SECTNO>
              <SUBJECT>Additional cost principles.</SUBJECT>
              <SECTNO>3452.216-71</SECTNO>
              <SUBJECT>Negotiated overhead rates—fixed.</SUBJECT>
              <SECTNO>3452.227-70</SECTNO>
              <SUBJECT>Publication and publicity.</SUBJECT>
              <SECTNO>3452.227-71</SECTNO>
              <SUBJECT>Paperwork Reduction Act.</SUBJECT>
              <SECTNO>3452.227-72</SECTNO>
              <SUBJECT>Advertising of awards.</SUBJECT>
              <SECTNO>3452.228-70</SECTNO>
              <SUBJECT>Required insurance.</SUBJECT>
              <SECTNO>3452.232-70</SECTNO>
              <SUBJECT>Prohibition against the use of ED funds to influence legislation or appropriations.</SUBJECT>
              <SECTNO>3452.232-71</SECTNO>
              <SUBJECT>Incremental funding.</SUBJECT>
              <SECTNO>3452.232-72</SECTNO>
              <SUBJECT>Method of payment.</SUBJECT>
              <SECTNO>3452.237-70</SECTNO>
              <SUBJECT>Identification of reports under consulting services contracts.</SUBJECT>
              <SECTNO>3452.237-71</SECTNO>
              <SUBJECT>Services of consultants.</SUBJECT>
              <SECTNO>3452.242-70</SECTNO>
              <SUBJECT>Litigation and claims.</SUBJECT>
              <SECTNO>3452.242-71</SECTNO>
              <SUBJECT>Notice to the Government of delays.</SUBJECT>
              <SECTNO>3452.242-72</SECTNO>
              <SUBJECT>Withholding of contract payments.</SUBJECT>
              <SECTNO>3452.242-73</SECTNO>
              <SUBJECT>Accessibility of meetings, conferences, and seminars to persons with disabilities.</SUBJECT>
              <SECTNO>3452.243-70</SECTNO>
              <SUBJECT>Key personnel.</SUBJECT>
              <SECTNO>3452.247-70</SECTNO>
              <SUBJECT>Foreign travel.</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>53 FR 19125, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 3452.2—Texts of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>3452.202-1</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>As prescribed in 3402.201, insert the following clause in solicitations and contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Definitions (Aug 1987)</HD>
                <P>(a) The term <E T="03">Secretary</E> or <E T="03">Head of the Agency</E> (also called <E T="03">Agency Head</E>) means the Secretary or Under Secretary of the Department of Education; and the term <E T="03">his/her duly authorized representative</E> means any person, persons, or board authorized to act for these officials.</P>
                <P>(b) The term <E T="03">contracting officer</E> means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer.</P>
                <P>(c) The term <E T="03">Contracting Officer's Technical Representative</E> means the person representing the Government for the purpose of technical monitoring of contract performance. The Contracting Officer's Technical Representative (COTR) 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 or price of this contract or a change in the delivery dates or performance period of this contract.</P>
                <P>(d) The term <E T="03">Department</E> or <E T="03">ED</E> means the Department of Education.</P>

                <P>(e) Except as otherwise provided in this contract, the term <E T="03">subcontract</E> includes, but is not limited to, purchase orders and changes and modifications to purchase orders under this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.208-70</SECTNO>
              <SUBJECT>Printing.</SUBJECT>
              <P>As prescribed in 3408.870, insert the following clause in all solicitations and contracts other than purchase orders:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Printing (Aug 1987)</HD>
                <P>Unless otherwise specified in this contract, the contractor shall not engage in, nor subcontract for, and printing (as that term is defined in Title I of the Government Printing and Binding Regulations in effect on the effective date of this contract) in connection with the performance of work under this contract; except that performance involving the reproduction of less than 5,000 production units of any one page, or less than 25,000 production units in the aggregate of multiple pages, shall not be deemed to be printing. A production unit is defined as one sheet, size 8<FR>1/2</FR> by 11 inches, and one side and color only.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.209-70</SECTNO>
              <SUBJECT>Organizational conflict of interest.</SUBJECT>
              <P>As prescribed in 3409.570, insert the following provision in all certifications:</P>
              <EXTRACT>
                <PRTPAGE P="144"/>
                <HD SOURCE="HD1">Organizational Conflict of Interest (Oct 1987)</HD>
                <P>The offeror certifies that it (_) is (_) is not aware of any potential organization conflict of interest that it may have under this procurement. If the offeror is aware of any potential conflict of interest, the offeror shall submit a disclosure statement fully describing the situation. An organizational conflict of interest is as defined and illustrated in FAR 9.5.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.215-33</SECTNO>
              <SUBJECT>Order of precedence.</SUBJECT>
              <P>As prescribed in 3415.406-3, insert the following clause in contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Order of Precedence (Aug 1987)</HD>
                <P>Any inconsistency in this contract shall be resolved by giving precedence in the following order:</P>
                <P>(a) The Schedule (exclusing the work statement or specification).</P>
                <P>(b) The contract clauses (Section I).</P>
                <P>(c) Any incorporated documents, exhibits, or attachment, excluding the work statement or specifications and the contractor's proposal, representations, and certifications,</P>
                <P>(d) The work statement or specifications, and</P>
                <P>(e) The contractor's proposal, as amended, including representations and certifications.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.215-70</SECTNO>
              <SUBJECT>Release of restricted data.</SUBJECT>
              <P>As prescribed in 3415.407, insert the following provision in solicitations:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Release of Restricted Data (Aug 1987)</HD>
                <P>(a) Offerors are hereby put on notice that regardless of their use of the legend set forth in FAR 52.215-12, Restriction on Disclosure and Use of Data, the Government may be required to release certain data contained in the proposal in response to a request for the data under the Freedom of Information Act. the Government's determination to withhold or disclose a record will be based upon the particular circumstance involving the data in question and whether the data may be exempted from disclosure under the Freedom of Information Act. In accordance with Executive Order 12600 and to the extent permitted by law, the Government will notify the offeror before it releases restricted data.</P>
                <P>(b) By submitting a proposal or quotation in response to this solicitation:</P>
                <P>(1) The offeror acknowledges that the Department may not be able to withhold nor deny access to data requested pursuant to the Act and that the Government's FOI officials shall make that determination;</P>
                <P>(2) The offeror agrees that the Government is not liable for disclosure if the Department has determined that disclosure is required by the Act;</P>
                <P>(3) The offeror acknowledges that proposals not resulting in a contract remain subject to the Act; and</P>
                <P>(4) The offeror agrees that the Government is not liable for disclosure or use of unmarked data and may use or disclose the data for any propose, including the release of the information pursuant to requests under the Act.</P>

                <P>(c) Offerors are cautioned that the Government reserves the right to reject any proposal submitted with (1) a restrictive legend or statement differing in substance from the one required by the solicitation provision in FAR 52.515-12, <E T="03">Restriction on Disclosure and Use of Data,</E> or (2) a statement taking exceptions to the terms of (a) or (b) of this provision.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.216-70</SECTNO>
              <SUBJECT>Additional cost principles.</SUBJECT>
              <P>Insert the following clause in solicitations and contracts as prescribed in 3416.307(b):</P>
              <EXTRACT>
                <HD SOURCE="HD1">Additional Cost Principles (Aug 1987)</HD>
                <P>(a) <E T="03">Bid and Proposal Costs.</E> Bid and proposal costs are the immediate costs of preparing bids, proposals, and applications for potential Federal and non-Federal grants, contracts, and other agreements, including the development of scientific, cost and other data needed to support the bids, proposals and applications. Bid and proposal costs of the current accounting period are allowable as indirect costs; bid and proposal costs of past accounting periods are unallowable as costs of 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. Bid and proposal costs do not include independent research and development costs or pre-award costs.</P>
                <P>(b) <E T="03">Independent research and development costs.</E> Independent research and development is research and development that is not sponsored by Federal and non-Federal grants, contracts, or other agreements. Independent research and development shall be allocated its proportionate share of indirect costs on the same basic as the allocation of indirect costs of sponsored research and development. The costs of independent research and development, including its proportionate share of indirect costs, are unallowable.</P>
              </EXTRACT>
              <PRTPAGE P="145"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.216-71</SECTNO>
              <SUBJECT>Negotiated overhead rates—fixed.</SUBJECT>
              <P>Insert the following clause in cost-reimbursement contracts as prescribed in 3416.701:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Negotiated Overhead Rates—Fixed (Aug 1987)</HD>
                <P>(a) Notwithstanding the provisions of the clause entitled “Allowable Cost and Payment”, the allowable indirect costs under this contract shall be obtained by applying negotiated fixed overhead rates for the applicable period(s) to bases agreed upon by the parties, as specified below. A negotiated fixed rate(s) is based on an estimate of the costs which will be incurred during the period for which the rate(s) applies. If the application of the negotiated fixed rates(s) against the actual bases during a given fiscal period produces an amount greater or less than the indirect costs determined for that period, the greater or lesser amount(s) will be carried forward to a subsequent period.</P>
                <P>(b) The contractor, as soon as possible but no later than six months after the close of its fiscal year, or such other period as may be specified in the contract, shall submit to the contracting officer or the duly authorized representative, with a copy to the cognizant audit activity, a proposed fixed overhead rate or rates based on the contractor's actual cost experience during the fiscal year, including adjustment, if any, for amounts carried forward, together with supporting cost data. Negotiation of fixed overhead rates, including carry-forward adjustments, if any, by the contractor and the contracting officer, or the duly authorized representative, shall be undertaken as promptly as practicable after receipt of the contractor's proposal.</P>
                <P>(c) Allowability of costs and acceptability of cost allocation methods shall be determined in accordance with part 31 of the Federal Acquisition Regulation (FAR) in effect on the date of this contract.</P>
                <P>(d) The results of each negotiation shall be set forth in an amendment to this contract, which shall specify (1) the agreed fixed overhead rates, (2) the bases to which the rates apply, (3) the fiscal year, unless the parties agreed to a different period, for which the rates apply, and (4) the specific items treated as direct costs or any changes in the items previously agreed to be direct costs.</P>
                <P>(e) Pending establishment of fixed overhead rates for any fiscal year or different period agreed to by the parties, the contractor shall be reimbursed either at the rates fixed for the previous fiscal year or other period or at billing rates acceptable to the contracting officer, subject to appropriate adjustment when the final rates for the fiscal year or other period are established.</P>
                <P>(f) Any failure of the parties to agree on any fixed rate or rates or to the amount of any carry-forward adjustment under this clause shall not be considered a dispute for decision by the contracting officer within the meaning of the Disputes clause of this contract. If for any fiscal year or other period specified in the contract, the parties fail to agree to a fixed overhead rate or rates, it is agreed that the allowable indirect costs under this contract shall be obtained by applying negotiated final overhead rates, in accordance with the terms of the Allowable Cost and Payment clause, in effect on the date of this contract.</P>
                <P>(g) Submission of proposed fixed, provisional, and/or final overhead rates, together with appropriate data in support thereof, to the contracting officer or the duly authorized representative and agreements on fixed, provisional, and/or final overhead rates entered into between the contractor and the contracting officer or the duly authorized representative, as evidenced by negotiated overhead rate agreements signed by both parties, shall satisfy the requirements of paragraphs (b), (c), (d), and (e) of this clause.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.227-70</SECTNO>
              <SUBJECT>Publication and publicity.</SUBJECT>
              <P>As prescribed in 3427.470, insert the following clause in all solicitations and contracts other than purchase orders:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Publication and Publicity (Aug 1987)</HD>
                <P>(a) Unless otherwise specified in this contract, the contractor is encouraged to publish and otherwise promote the results of its work under this contract. A copy of each article or work submitted by the contractor for publication shall be promptly sent to the Contracting Officer's Technical Representative. The contractor shall also inform the representative when the article or work is published and furnish a copy in the published form.</P>
                <P>(b) The contractor shall acknowledge the support of the Department of Education in publicizing the work under this contract in any medium. This acknowledgment shall read substantially as follows:</P>
                <P>“This project has been funded at least in part with Federal funds from the U.S. Department of Education under contract number _____. The content of this publication does not necessarily reflect the views or policies of the U.S. Department of Education nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”</P>
              </EXTRACT>
              <PRTPAGE P="146"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.227-71</SECTNO>
              <SUBJECT>Paperwork Reduction Act.</SUBJECT>
              <P>As prescribed in 3427.471, insert the following clause in all solicitations and contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Paperwork Reduction Act (Aug 1987)</HD>
                <P>(a) The Paperwork Reduction Act of 1980 (Pub. L. 96-511) applies to contractors that collect information for use or disclosure by the Federal Government.</P>
                <P>If the contractor will collect information requiring answers to identical questions from 10 or more people then no plan, questionnaire, interview guide, or other similar device for collecting information may be used without first obtaining clearance from the Deputy Under Secretary for Management (DUSM) or his/her delegate within the Department of Education (ED) and the Office of Management and Budget (OMB). Contractors and Contracting Officers' Technical Representatives shall be guided by the provisions of 5 CFR part 1320, Controlling Paperwork Burdens on the Public, and seek the advice of the Department's Paperwork Clearance Officer to determine the procedures for acquiring DUSM and OMB clearance.</P>
                <P>(b) The contractor shall obtain the required DUSM and OMB clearance through the Contracting Officer's Technical Representative before expending any funds or making public contacts for the collection of information described in paragraph (a) of this clause. The authority to expend funds and proceed with the collection shall be in writing by the contracting officer. The contractor must plan at least 120 days for DUSM and OMB clearance. Excessive delay 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>3452.227-72</SECTNO>
              <SUBJECT>Advertising of awards.</SUBJECT>
              <P>As prescribed in 3427.472, insert the following clause in all solicitations and contracts other than purchase orders:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Advertising of Awards (Aug 1987)</HD>
                <P>The contractor agrees not to refer to awards issued by the Department of Education in commercial advertising in such a manner as to state or imply that the product or service provided is endorsed by the Federal Government or is necessarily considered by the Government to be superior to other products or services.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.228-70</SECTNO>
              <SUBJECT>Required insurance.</SUBJECT>
              <P>As prescribed in 3428.370, insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Required Insurance (Aug 1987)</HD>
                <P>(a) The contractor shall procure and maintain such insurance as required by law or regulation, including but not limited to the requirements of FAR subpart 28.3 or by the written direction of the contracting officer. Prior written approval of the contracting officer shall be required with respect to any insurance policy the premiums for which the contractor proposes to treat as a direct cost under this contract and with respect to any proposed qualified program of self-insurance. The terms of any other insurance policy shall be submitted to the contracting officer for approval upon request.</P>
                <P>(b) Unless otherwise authorized in writing by the contracting officer, the contractor shall not procure or maintain for its own protection any insurance covering loss or destruction of or damage to Government property.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.232-70</SECTNO>
              <SUBJECT>Prohibition against the use of ED funds to influence legislation or appropriations.</SUBJECT>
              <P>The following clause is to be used in accordance with 3432.770:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Prohibition Against the Use of ED Funds to Influence Legislation or Appropriations (Apr 1987)</HD>
                <P>No part of any funds under this contract shall be used to pay the salary and expenses of any contractor, or agency acting for the contractor, to engage in any activity designed to influence legislation or appropriations pending before the Congress.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.232-71</SECTNO>
              <SUBJECT>Incremental funding.</SUBJECT>
              <P>As prescribed in 3452.771, insert the following provision in solicitations:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Incremental Funding (Aug 1987)</HD>

                <P>(a) Sufficient funds are not presently available to cover the total cost of the complete project described in this solicitation. However, it is the Government's intention to negotiate and award a contract using the incremental funding concepts described in the clause titled “Limitation of Funds” in FAR 52.232-22. Under that clause, which will be included in the resultant contract, initial <PRTPAGE P="147"/>funds will be obligated under the contract to cover an estimated base performance period. Additional funds are intended to be allotted to the contract by contract modification, up to and including the full estimated cost of the entire period of performance. This intent notwithstanding, the Government will not be obligated to reimburse the contractor for cost 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 Cost clause in FAR 52.232-20 shall supersede the Limitation of Funds clause in the event the contract becomes fully funded.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of provision)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.232-72</SECTNO>
              <SUBJECT>Method of payment.</SUBJECT>
              <P>As prescribed in 3432.170, insert the following clause in all solicitations and contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Method of Payment (Aug 1987)</HD>
                <P>(a) Payments under this contract will be made either by check or by wire transfer through the Treasury Financial Communications System at the option of the Government.</P>
                <P>(b) The contractor shall forward the following information in writing to (designated payment party) not later than seven days after receipt of notice of award.</P>
                <P>(1) Full name (where practicable), title, phone number, and complete mailing address of responsible official(s) to whom check payments are to be sent, and who may be contacted concerning the bank account information requested below.</P>
                <P>(2) The following bank account information required to accomplish wire transfers:</P>
                <P>(i) Name, address, and telegraphic abbreviation of the receiving financial institution:</P>
                <P>(ii) Receiving financial institution's nine-digit American Bankers Association (ABA) identifying number for routing transfer of funds. (Provide this number only if the receiving financial institution has access to the Federal Reserve Communications System.)</P>
                <P>(iii) Recipient's name and account number at the receiving financial institution to be credited with the funds.</P>
                <P>(iv) If the receiving financial institution does not have access to the Federal Reserve Communications System, provide the name of the correspondent financial institution through which the receiving financial institution receives electronic funds transfer messages. If a correspondent financial institution is specified, also provide the address and telegraphic abbreviation of that institution and its nine-digit ABA identifying number for routing transfer of funds.</P>
                <P>(c) Any changes to the information furnished under paragraph (b) of this clause shall be furnished to (designated payment office) in writing at least 30 days before the effective date of the change. It is the contractor's responsibility to furnish these changes promptly to avoid payments to erroneous addresses or bank accounts.</P>
                <P>(d) The document furnishing the information required in paragraphs (b) and (c) must be dated and contain the signature, title, and telephone number of the contractor's official authorized to provide it, as well as the contractor's name and contract number.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.237-70</SECTNO>
              <SUBJECT>Identification of reports under consulting services contracts.</SUBJECT>
              <P>As prescribed in 3437.270, insert the following clause in all solicitations and contracts for consulting services:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Identification of Reports Under Consulting Service Contracts (Aug 1987)</HD>
                <P>The contractor shall set forth on the cover of every report submitted pursuant to this contract the following information:</P>
                <P>(a) Name and business address of the contractor; (b) contract number; (c) contract dollar amount; (d) whether the contract was competitively or noncompetitively awarded; (e) name of the Contracting Officer's Technical Representative and complete office identification and address; and (f) names of the managerial and professional personnel responsible for the content and preparation of the report.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.237-71</SECTNO>
              <SUBJECT>Services of consultants.</SUBJECT>
              <P>As prescribed in 3437.271, insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Services of Consultants (Aug 1987)</HD>
                <P>Except as otherwise expressly provided elsewhere in this contract, and notwithstanding the provisions of the clause of the contract entitled “Subcontracts Under Cost-Reimbursement and Letter Contracts,” the prior written approval of the contracting officer shall be required:</P>
                <P>(a) If any employee of the contractor is to be paid as a “consultant” under this contract; and</P>

                <P>(b) For the utilization of the services of any consultant under this contract exceeding the daily rate set forth elsewhere in this contract or, if no amount is set forth, $150, exclusive of travel costs, or if the services of any consultant under this contract will exceed 10 days in any calendar year.<PRTPAGE P="148"/>
                </P>
                <P>If that contracting officer's approval is required, the contractor shall obtain and furnish to the contracting officer information concerning the need for the consultant services and the reasonableness of the fees to be paid, including, but not limited to, whether fees to be paid to any consultant exceed the lowest fee charged by consultant to others for performing consultant services of a similar nature.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.242-70</SECTNO>
              <SUBJECT>Litigation and claims.</SUBJECT>
              <P>As prescribed in 3442.7002, insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Litigation and Claims (Aug 1987)</HD>
                <P>(a) The contractor shall give the contracting officer immediate notice in writing of:</P>
                <P>(1) Any action, filed against the contractor arising out of the performance of this contract, including any proceeding before any administrative agency or court of law, and also including, but not limited to, the performance of any subcontract hereunder; and</P>
                <P>(2) Any claim against the contractor for a cost which is allowable under the clause entitled “Allowable Cost and Payment.”</P>
                <P>(b) Except as otherwise directed by the contracting officer, the contractor shall immediately furnish the contracting officer copies of all pertinent papers received under that action or claim.</P>
                <P>(c) If required by the contracting officer, the contractor shall:</P>
                <P>(1) Effect an assignment and subrogation in favor of the Government of all the contractor's rights and claim (except those against the Government) arising out of the action or claim against the contractor; and</P>
                <P>(2) Authorize the Government to settle or defend the action or claim and to represent the contractor in, or to take charge of, the action.</P>
                <P>(d) If the settlement or defense of an action or claim is undertaken by the Government, the contractor shall furnish all reasonable required assistance. However, if an action against the contractor is not covered by a policy of insurance, the contractor shall notify the contracting officer and proceed with the defense of the action in good faith.</P>
                <P>(e) 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.</P>
                <P>(f)(1) 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 that was required by law, regulation, contract clause, or other written direction of the contracting officer, but which the contractor failed to secure through its own fault or negligence.</P>
                <P>(2) In any event, unless otherwise expressly provided in this contract, the contractor shall not be reimbursed or indemnified by the Government for any cost or expense of liability that 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 arise from the performance of this contract.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.242-71</SECTNO>
              <SUBJECT>Notice to the Government of delays.</SUBJECT>
              <P>As prescribed in 3442.7003, insert the following clause in all solicitations and contracts other than purchase orders:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Notice to the Government of Delays (Aug 1987)</HD>
                <P>Whenever the contractor has knowledge that any actual or potential situation, including but not limited to labor disputes, is delaying or threatens to delay the timely performance of work under this contract, the contractor shall immediately give written notice thereof, including all relevant information with respect thereto, to the contracting officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.242-72</SECTNO>
              <SUBJECT>Withholding of contract payments.</SUBJECT>
              <P>As prescribed in 3442.7001, insert the following clause in all solicitations and contacts other than purchase orders:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Withholding of Contract Payments (Aug 1987)</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, or failure to meet any of the requirements of the contract, will result in the withholding of payments under this contract in such amounts as the contracting officer deems appropriate, unless the failure arises out of causes beyond the control, and without the fault of 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. Payment will be withheld until the failure is cured, a new delivery schedule is agreed upon, or payment is made as part of a termination settlement.</P>
              </EXTRACT>
              <PRTPAGE P="149"/>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.242-73</SECTNO>
              <SUBJECT>Accessibility of meetings, conferences, and seminars to persons with disabilities.</SUBJECT>
              <P>As prescribed in 3442.7101(b), insert the following clause in all solicitations and contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities (Aug 1987)</HD>
                <P>The contractor shall assure that any meeting, conference, or seminar held pursuant to the contract will meet all applicable standards for accessibility to persons with disabilities pursuant to section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) and any implementing regulations of the Department.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.243-70</SECTNO>
              <SUBJECT>Key personnel.</SUBJECT>
              <P>As prescribed in 3443.106(b), insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Key Personnel (Aug 1987)</HD>

                <P>The personnel designated as key personnel 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, or otherwise substituting any other personnel for specified personnel, 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 contract effort. No diversion or substitution shall be made by the contractor without the written consent of the contracting officer; <E T="03">provided,</E> that the contracting officer may ratify a diversion or substitution in writing and that ratification shall constitute the consent of the contracting officer required by this clause. The contract shall be modified to reflect that addition or deletion personnel.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>3452.247-70</SECTNO>
              <SUBJECT>Foreign travel.</SUBJECT>
              <P>As prescribed in 3447.7000, insert the following clause in all solicitations and resultant cost-reimbursement contracts:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Foreign Travel (Aug 1987)</HD>
                <P>Foreign travel shall not be undertaken without the prior written approval of the contracting officer. As used in this clause, “foreign travel” means travel outside the fifty States comprising the United States, the District of Columbia, and Canada.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 44 (10-1-05 Edition)</LRH>
      <RRH>Federal Emergency Management Agency</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="151"/>
          <HD SOURCE="HED">CHAPTER 44—FEDERAL EMERGENCY MANAGEMENT AGENCY</HD>
          <P>(Parts 4400 to 4499)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>4401</PT>
          <SUBJECT>Federal Emergency Management Agency (FEMA) Acquisition Regulation System</SUBJECT>
          <PG>153</PG>
          <PT>4402</PT>
          <SUBJECT>Definition of words and terms</SUBJECT>
          <PG>156</PG>
          <PT>4403</PT>
          <SUBJECT>Improper business practices and personal conflicts of interest</SUBJECT>
          <PG>156</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>4405</PT>
          <SUBJECT>Publicizing contract actions</SUBJECT>
          <PG>158</PG>
          <PT>4406</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>158</PG>
          <PT>4408</PT>
          <SUBJECT>Required sources of supplies and services</SUBJECT>
          <PG>158</PG>
          <PT>4409</PT>
          <SUBJECT>Contractor qualifications</SUBJECT>
          <PG>159</PG>
          <PT>4412</PT>
          <SUBJECT>Contract delivery or performance</SUBJECT>
          <PG>159</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>4414</PT>
          <SUBJECT>Sealed bidding</SUBJECT>
          <PG>161</PG>
          <PT>4415</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>161</PG>
          <PT>4416</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>163</PG>
          <PT>4417</PT>
          <SUBJECT>Special contracting methods</SUBJECT>
          <PG>165</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>4419</PT>
          <SUBJECT>Small business and small disadvantaged business concerns</SUBJECT>
          <PG>166</PG>
          <PT>4424</PT>
          <SUBJECT>Protection of privacy and freedom of information</SUBJECT>
          <PG>166</PG>
          <PT>4426</PT>
          <SUBJECT>Other socioeconomic programs</SUBJECT>
          <PG>166</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>4429</PT>
          <SUBJECT>Taxes</SUBJECT>
          <PG>167</PG>
          <PT>4432</PT>
          <SUBJECT>Contract financing</SUBJECT>
          <PG>167<PRTPAGE P="152"/>
          </PG>
          <PT>4433</PT>
          <SUBJECT>Protests, disputes and appeals</SUBJECT>
          <PG>167</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>4435</PT>
          <SUBJECT>Research and development contracting</SUBJECT>
          <PG>168</PG>
          <PT>4436</PT>
          <SUBJECT>Construction and architect-engineer contracts</SUBJECT>
          <PG>168</PG>
          <PT>4450</PT>
          <SUBJECT>Extraordinary contractual actions</SUBJECT>
          <PG>168</PG>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>4452</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>170</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="153"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <EAR>Pt. 4401</EAR>
          <HD SOURCE="HED">PART 4401—FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) ACQUISITION REGULATION SYSTEM</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>4401.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4401.1—Purpose, Authority, Issuance</HD>
              <SECTNO>4401.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>4401.103</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>4401.104</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
              <SECTNO>4401.104-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>
              <SECTNO>4401.104-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4401.3—Agency Acquisition Regulations</HD>
              <SECTNO>4401.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>4401.303</SECTNO>
              <SUBJECT>Codification and public participation.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4401.4—Deviations From the FAR</HD>
              <SECTNO>4401.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <SECTNO>4401.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <SECTNO>4401.405</SECTNO>
              <SUBJECT>Deviations pertaining to treaties and executive agreements.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4401.6—Contracting Authority and Responsibilities</HD>
              <SECTNO>4401.600-70</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>4401.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>4401.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
              <SECTNO>4401.603-2</SECTNO>
              <SUBJECT>Selection.</SUBJECT>
              <SECTNO>4401.603-3</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4401.7—Determinations and Findings</HD>
              <SECTNO>4401.707-70</SECTNO>
              <SUBJECT>Signature authority.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4401.70—Procurement Contracts Versus Assistance Instruments</HD>
              <SECTNO>4401.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>4401.7001</SECTNO>
              <SUBJECT>Procurement contracts.</SUBJECT>
              <SECTNO>4401.7001-1</SECTNO>
              <SUBJECT>Situations for use.</SUBJECT>
              <SECTNO>4401.7001-2</SECTNO>
              <SUBJECT>Examples.</SUBJECT>
              <SECTNO>4401.7002</SECTNO>
              <SUBJECT>Assistance.</SUBJECT>
              <SECTNO>4401.7002-1</SECTNO>
              <SUBJECT>Grants.</SUBJECT>
              <SECTNO>4401.7002-2</SECTNO>
              <SUBJECT>Cooperative agreements.</SUBJECT>
              <SECTNO>4401.7002-3</SECTNO>
              <SUBJECT>Examples of unsubstantial involvement.</SUBJECT>
              <SECTNO>4401.7002-4</SECTNO>
              <SUBJECT>Examples of substantial involvement.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31316, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>4401.000</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>This part sets forth policies and procedures concerning the Federal Emergency Management Agency Acquisition Regulation (FEMAAR) System.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4401.1—Purpose, Authority, Issuance</HD>
            <SECTION>
              <SECTNO>4401.101</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>FEMAAR is a supplement to the Federal Acquisition Regulation (FAR) and is established for the codification and publication of uniform policies and procedures for acquisitions by FEMA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.103</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <P>This regulation applies to all acquisitions within FEMA, but not to placement or administration of cooperative agreements or grants.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.104</SECTNO>
              <SUBJECT>Issuance.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4401.104-1</SECTNO>
              <SUBJECT>Publication and code arrangement.</SUBJECT>

              <P>(a) The FEMAAR is published in (1) the daily issue of the <E T="04">Federal Register</E> and (2) cumulated form in the Code of Federal Regulations (CFR).</P>
              <P>(b) The FEMAAR is issued as chapter 44 of title 48, CFR.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.104-3</SECTNO>
              <SUBJECT>Copies.</SUBJECT>
              <P>Copies of the FEMAAR in <E T="04">Federal Register</E> and CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. Agency offices may request copies of the FEMAAR from the Policy and Evaluation Division, Office of Acquisition Management.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4401.3—Agency Acquisition Regulations</HD>
            <SECTION>
              <SECTNO>4401.301</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>Policies, procedures, and guidance of an internal nature may be issued <PRTPAGE P="154"/>through internal FEMA issuances such as manuals, standard operating procedures, directives or instructions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.303</SECTNO>
              <SUBJECT>Codification and public participation.</SUBJECT>
              <P>If subject matter in FAR requires no implementation, the FEMAAR will not contain a corresponding part, subpart, section, or subsection number. FAR subject matter governs.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4401.4—Deviations From the FAR</HD>
            <SECTION>
              <SECTNO>4401.403</SECTNO>
              <SUBJECT>Individual deviations.</SUBJECT>
              <P>The Director, Office of Acquisition Management, must authorize individual deviations in advance. Requests for authorization must:</P>
              <P>(a) Cite the specific parts of the FAR or FEMAAR from which it is desired to deviate;</P>
              <P>(b) Describe the deviation fully;</P>
              <P>(c) Indicate the circumstances which require the deviation;</P>
              <P>(d) Give reasons supporting the action requested; and</P>
              <P>(e) Give reasons why the action is in the best interest of the Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.404</SECTNO>
              <SUBJECT>Class deviations.</SUBJECT>
              <P>The Director, Office of Acquisition Management, must authorize class deviations in advance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.405</SECTNO>
              <SUBJECT>Deviations pertaining to treaties and executive agreements.</SUBJECT>
              <P>The Director, Office of Acquisition Management, is the central control point for all deviations including those pertaining to treaties and executive agreements.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4401.6—Contracting Authority and Responsibilities</HD>
            <SECTION>
              <SECTNO>4401.600-70</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart deals with the placement of contracting authority and responsibility within the agency, the selection and designation of contracting officers, and the authority of contracting officers.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.601</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The Director, Office of Acquisition Management, is designated the head of contracting activities and FEMA's procurement executive. The Director, Office of Acquisition Management, shall establish policy throughout the agency; monitor the overall effectiveness and efficiency of the agency's contracting offices; establish controls to assure compliance with laws, regulations, and procedures; and delegate contracting officer authority. The Director, Office of Acquisition Management, shall exercise the authority delegated under 44 CFR 2.67 FEMA Organization, Functions and Delegations.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.603</SECTNO>
              <SUBJECT>Selection, appointment, and termination of appointment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4401.603-2</SECTNO>
              <SUBJECT>Selection.</SUBJECT>
              <P>In the areas of experience, training, and education, the following shall be required unless contracting authority is limited to a simplified purchase procedures. Waiver of any of these criteria shall be in writing:</P>
              <P>(a) An individual contracting officer or an individual appointed to a position having contracting officer authority shall have a minimum of two years experience performing contracting, procurement, or purchasing functions in a Government or commercial contracting office. Additionally, where a contracting officer will work in a specialized field, experience in the field shall be a criterion for the appointment.</P>
              <P>(b) An individual contracting officer or an individual appointed to a position having contracting officer authority shall have the equivalent of a bachelor's degree from an accedited college or institution with major studies in business administration, law, accounting, or related fields. The appointing official may waive this requirement when a candidate is otherwise qualified by virtue of extensive contract-related experience and training, business acumen, judgment, character, reputation, and ethics.</P>

              <P>(c) An individual contracting officer or an individual appointed to a position having contracting authority shall have successfully completed training courses in both Government basic procurement and Government contract administration, each of not less than 80 class hours. Incumbents not meeting <PRTPAGE P="155"/>the special training requirements shall be given 24 months to meet the minimum qualification standards.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.603-3</SECTNO>
              <SUBJECT>Appointment.</SUBJECT>
              <P>Except for disaster-related activities and unusual circumstances as determined by the head of the contracting activity, it is policy to delegate contracting officer authority to individuals rather than to positions. The head of the contracting activity is the appointing authority. Except where the delegation of authority specifically includes the authority for further redelegation, no other delegations or redelegations may be made. Delegations of contracting officer authority shall include a clear statement of such authority and its responsibilities and limitations.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4401.7—Determinations and Findings</HD>
            <SECTION>
              <SECTNO>4401.707-70</SECTNO>
              <SUBJECT>Signature authority.</SUBJECT>
              <P>The head of the contracting activity shall sign all class Determination and Findings (D &amp; F's) not otherwise reserved to the agency head.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4401.70—Procurement Contracts Versus Assistance Instruments</HD>
            <SECTION>
              <SECTNO>4401.7000</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart describes the situations appropriate for the use of procurement contracts, grants, or cooperative agreements and provides examples of each.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7001</SECTNO>
              <SUBJECT>Procurement contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7001-1</SECTNO>
              <SUBJECT>Situations for use.</SUBJECT>
              <P>Procurement contracts are to be used whenever the principal purpose of the instrument is acquisition by purchase, lease, or barter of property or services for the direct benefit or use of the Federal Government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7001-2</SECTNO>
              <SUBJECT>Examples.</SUBJECT>
              <P>Procurement contracts normally will be used when the principal purpose of the relationship is:</P>
              <P>(a) Evaluation (including research if an evaluation character) of the performance of Government program, projects, or grantee activity initiated by FEMA.</P>
              <P>(b) Projects funded by administrative funds.</P>
              <P>(c) Technical assistance rendered on behalf of the Government to any third party including those receiving grants or cooperative agreements.</P>
              <P>(d) Surveys, studies, and research which provide specific information desired by the Government for its direct activities or for dissemination to the public.</P>
              <P>(e) Consulting or professional services of all kinds if provided to the Government or, on behalf of the Government, to any third party.</P>
              <P>(f) Planning for Government use.</P>
              <P>(g) Conferences conducted in behalf of the Government.</P>
              <P>(h) Production of publications or audiovisual materials required primarily for the conduct of the direct operations of the Government.</P>
              <P>(i) Design or development of items for Government use or pursuant to agency definition or specifications.</P>
              <P>(j) Generation of management information or other data for Government use.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7002</SECTNO>
              <SUBJECT>Assistance.</SUBJECT>
              <P>Assistance may take the form of either grants or cooperative agreements and include:</P>
              <P>(a) General financial assistance (stimulation or support) to eligible recipients under specific legislation authorizing such assistance.</P>
              <P>(b) Financial assistance (stimulation or support) to a specific program activity eligible for such assistance under specific legislation authorizing such assistance.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7002-1</SECTNO>
              <SUBJECT>Grants.</SUBJECT>
              <P>Grants are to be used whenever the principal purpose of the relationship is to transfer money, property, services, or anything else of value to a recipient to accomplish a public purpose. The support or stimulation to be accomplished by this transfer must be authorized by Federal statute and substantial involvement is not anticipated.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="156"/>
              <SECTNO>4401.7002-2</SECTNO>
              <SUBJECT>Cooperative agreements.</SUBJECT>
              <P>Cooperative agreements are to be used whenever the principal purpose of the relationship is the transfer of money, property, service, or anything else of value to recipients to accomplish a public purpose. The support or stimulation to be accomplished by this transfer must be authorized by Federal statute and substantial involvement is anticipated.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7002-3</SECTNO>
              <SUBJECT>Examples of unsubstantial involvement.</SUBJECT>
              <P>Involvement is not substantial and a grant is the proper instrument when the following types of involvement are planned:</P>
              <P>(a) Approval of recipient plans prior to award.</P>
              <P>(b) Normal Federal stewardship such as site visits, performance reporting, financial reporting, and audits to ensure that objectives, terms, and conditions of the grants are met.</P>
              <P>(c) Unanticipated involvement to correct deficiencies in project or financial performance from the terms of the grants.</P>
              <P>(d) General statutory requirements understood in advance of the award such as civil rights, environmental protection, and provision for the handicapped.</P>
              <P>(e) Review of performance after completion.</P>
              <P>(f) General administrative requirements, such as those included in OMB Circulars A-21, A-95, A-110, and A-102.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4401.7002-4</SECTNO>
              <SUBJECT>Examples of substantial involvement.</SUBJECT>
              <P>Involvement is substantial and a cooperative agreement is the proper instrument when the following types of involvement are planned:</P>
              <P>(a) Agency review and approval of one stage before work can begin on a subsequent stage during the period covered by the cooperative agreement.</P>
              <P>(b) Agency and recipient collaboration or joint participation in the performance of the assisted activities.</P>
              <P>(c) Highly prescriptive agency requirements prior to award limiting recipient discretion with respect to scope of services offered, organizational structure, staffing, mode of operation and other management processes, coupled with close agency monitoring or operational involvement during performance over and above the normal exercise of Federal stewardship responsibilities to ensure compliance with these requirements.</P>
              <P>(d) General administrative requirements beyond those included in OMB Circulars A-102 and A-110.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4402</EAR>
          <HD SOURCE="HED">PART 4402—DEFINITION OF WORDS AND TERMS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4402.1—Definitions</HD>
            <SECTION>
              <SECTNO>4402.100</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>
                <E T="03">Agency</E> means the Federal Emergency Management Agency (FEMA).</P>
              <P>
                <E T="03">Director</E> means the Director of the Federal Emergency Management Agency.</P>
              <P>
                <E T="03">Interagency agreement</E> means an agreement between two or more agencies, bureaus, or departments of the Federal Government by which supplies, services, or property are provided to, or obtained from, one or more agencies, bureaus, or departments of the Federal Government. Funds are transferred between the parties as consideration for the supplies, services, or property.</P>
              <P>
                <E T="03">Memorandum of Understanding</E> means an agreement between two or more agencies, bureaus, or departments of the Federal Government or other entity. Funds are not transferred between the parties.</P>
              <P>
                <E T="03">Program office</E> means any office which generates requests for procurement actions.</P>
              <P>
                <E T="03">Project officer</E> means the program office representative cognizant over the technical aspects of a given procurement action.</P>
              <CITA>[50 FR 31318, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4403</EAR>
          <HD SOURCE="HED">PART 4403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4403.1—Safeguards</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4403.101-2</SECTNO>

              <SUBJECT>Solicitation and acceptance of gratuities by Government personnel.<PRTPAGE P="157"/>
              </SUBJECT>
              <SECTNO>4403.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <SECTNO>4403.103</SECTNO>
              <SUBJECT>Independent pricing.</SUBJECT>
              <SECTNO>4403.103-2</SECTNO>
              <SUBJECT>Evaluating the certification.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4403.2—Contractor Gratuities to Government Personnel</HD>
              <SECTNO>4403.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <SECTNO>4403.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
              <SECTNO>4403.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31319, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4403.1—Safeguards</HD>
            <SECTION>
              <SECTNO>4403.101-2</SECTNO>
              <SUBJECT>Solicitation and acceptance of gratuities by Government personnel.</SUBJECT>
              <P>Exceptions to the prohibition against soliciting or accepting gratuities are explained in 44 CFR part 3, subpart B.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4403.101-3</SECTNO>
              <SUBJECT>Agency regulations.</SUBJECT>
              <P>FEMA “Standards and Conduct” are published in 44 CFR part 3. They include requirements for financial disclosure.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4403.103</SECTNO>
              <SUBJECT>Independent pricing.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4403.103-2</SECTNO>
              <SUBJECT>Evaluating the certification.</SUBJECT>
              <P>The Director, Office of Acquisition Management, is authorized to make the determination described in FAR 3.103-2(b)(2).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4403.2—Contractor Gratuities to Government Personnel</HD>
            <SECTION>
              <SECTNO>4403.203</SECTNO>
              <SUBJECT>Reporting suspected violations of the Gratuities clause.</SUBJECT>
              <P>Suspected violations shall be reported in the FEMA Office of the Inspector General. A report shall include all facts and circumstances relevant to the case.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4403.204</SECTNO>
              <SUBJECT>Treatment of violations.</SUBJECT>
              <P>Following review and any necessary investigation, the Inspector General shall make recommendations to the Director or a designee. If action is to be taken against a contractor, the contractor shall be given the opportunity for a hearing in accordance with FAR 3.204(b).</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them</HD>
            <SECTION>
              <SECTNO>4403.602</SECTNO>
              <SUBJECT>Exceptions.</SUBJECT>
              <P>The Director, Office of Acquisition Management, may authorize an exception to the policy in FAR 3.601, based on facts and circumstances provided by the program office.</P>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="158"/>
        <HD SOURCE="HED">SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 4405</EAR>
          <HD SOURCE="HED">PART 4405—PUBLICIZING CONTRACT ACTIONS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>4405.001</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4405.2—Synopsis of Proposed Contracts</HD>
              <SECTNO>4405.206</SECTNO>
              <SUBJECT>Synopsis of subcontract opportunities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4405.5—Paid Advertisements</HD>
              <SECTNO>4405.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganizational Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31319, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>4405.001</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>The agency shall continually search for and develop information on sources (including small businesses owned and controlled by one or more socially or economically disadvantaged individuals) competent to provide supplies or services. Advance publicity, including use of the Commerce Business Daily to the fullest extent practicable, shall be used for this purpose. The search should include a review of data or brochures furnished by sources seeking to do business with the agency. It also should include program personnel, small business specialists, and contracting officers to obtain information and recommendations with respect to potential sources and to consider seeking other sources by publication of proposed procurements.</P>
          </SECTION>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4405.2—Synopsis of Proposed Contracts</HD>
            <SECTION>
              <SECTNO>4405.206</SECTNO>
              <SUBJECT>Synopsis of subcontract opportunities.</SUBJECT>
              <P>Unless it is not in the Government's interest, the contracting officer shall make the solicitation source list available to firms requesting it for subcontracting opportunities on contracts exceeding the small purchase threshold.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4405.5—Paid Advertisements</HD>
            <SECTION>
              <SECTNO>4405.502</SECTNO>
              <SUBJECT>Authority.</SUBJECT>
              <P>In accordance with 44 CFR 2.72(a) authority to approve publication of paid advertisement in newspapers has been delegated to the Director, Office of Administrative Support.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4406</EAR>
          <HD SOURCE="HED">PART 4406—COMPETITION REQUIREMENTS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4406.5—Competition Advocate</HD>
            <SECTION>
              <SECTNO>4406.501</SECTNO>
              <SUBJECT>Requirement.</SUBJECT>
              <P>The Chief, Policy and Planning Division, Office of Acquisition Management is designated FEMA's Competition Advocate.</P>
              <CITA>[50 FR 31319, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4408</EAR>
          <HD SOURCE="HED">PART 4408—REQUIRED SOURCES OF SUPPLIES AND SERVICES</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4408.8—Acquisition of Printing and Related Supplies</HD>
            <SECTION>
              <SECTNO>4408.802</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>Contracting officers shall obtain approval from the Director, Office of Administrative Support, FEMA's central printing authority before contracting for printing.</P>
              <CITA>[50 FR 31319, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="159"/>
          <EAR>Pt. 4409</EAR>
          <HD SOURCE="HED">PART 4409—CONTRACTOR QUALIFICATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4409.4—Debarment, Suspension, and Ineligibility</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4409.404</SECTNO>
              <SUBJECT>Consolidated list of debarred, suspended, and ineligible contractors.</SUBJECT>
              <SECTNO>4409.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
              <SECTNO>4409.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>4409.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>4409.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
              <SECTNO>4409.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>4409.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31319, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4409.4—Debarment, Suspension, and Ineligibility</HD>
            <SECTION>
              <SECTNO>4409.404</SECTNO>
              <SUBJECT>Consolidated list of debarred, suspended, and ineligible contractors.</SUBJECT>
              <P>The Director, Office of Acquisition Management, will notify GSA, maintain records, establish procedures, and direct inquiries as required by FAR 9.404(c).</P>
            </SECTION>
            <SECTION>
              <SECTNO>4409.406</SECTNO>
              <SUBJECT>Debarment.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4409.406-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The Chief of Staff shall be the debarring official.</P>
              <CITA>[50 FR 31319, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4409.406-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) Determination to debar or take other action concerning a firm or individual for a cause listed in FAR 9.406-2 shall be made by the Chief of Staff. Whenever cause for debarment becomes known to any contracting officer, the matter shall be submitted, with recommendations of the Director, Office of Acquisition Management, via the Office of General Counsel, to the Chief of Staff for appropriate action. The documented file of the case will be included in the submission.</P>
              <P>(b) If the Chief of Staff concurs in the proposed debarment, a notice of proposal to debar shall be issued by the Chief of Staff or designee.</P>
              <P>(c) The Chief of Staff or designee shall conduct any hearings requested in connection with debarment proceedings. The firm or individual shall have the opportunity to appear with witnesses and counsel to present facts or circumstances showing cause why such firm or individual should not be debarred. If the firm or individual elects not to appear, or if the firm or individual does not respond within 30 days from receipt of the written notice, the reviewing authority will make the decision based on the facts on record and such additional evidence as may be furnished by the parties involved. After consideration of the facts, the reviewing authority shall notify the firm or individual of the final decision.</P>
              <P>(d) Appeals may be taken within 30 days after receipt by the firm or individual of a decision to debar. Appeals shall be filed with the Director, FEMA, who shall make a decision based on the record. The Director's decision shall be final.</P>
              <CITA>[50 FR 31319, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4409.407</SECTNO>
              <SUBJECT>Suspension.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4409.407-1</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The Chief of Staff shall be the suspending official.</P>
              <CITA>[50 FR 31319, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4409.407-3</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) Any contracting officer may recommend suspension of bidders. These recommendations shall be accompanied by the documented file in the case and be submitted through the Director, Office of Acquisition Management, via the Office of General Counsel, to the Chief of Staff. The Chief of Staff shall issue the notice of suspension.</P>
              <P>(b) The Director, Office of Acquisition Management, shall develop and maintain suspension procedures.</P>
              <CITA>[50 FR 31319, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4412</EAR>
          <HD SOURCE="HED">PART 4412—CONTRACT DELIVERY OR PERFORMANCE</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <PRTPAGE P="160"/>
            <HD SOURCE="HED">Subpart 4412.3—Priorities, Allocations, and Allotments</HD>
            <SECTION>
              <SECTNO>4412.303</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>Rejected rated orders or ACM orders shall be sent to the Department of Commerce through the head of the contracting activity.</P>
              <CITA>[50 FR 31320, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="161"/>
        <HD SOURCE="HED">SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES</HD>
        <PART>
          <EAR>Pt. 4414</EAR>
          <HD SOURCE="HED">PART 4414—SEALED BIDDING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4414.4—Opening of Bids and Award of Contract</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4414.401</SECTNO>
              <SUBJECT>Receipt and safeguarding of bids.</SUBJECT>
              <SECTNO>4414.402</SECTNO>
              <SUBJECT>Opening of bids.</SUBJECT>
              <SECTNO>4414.406</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
              <SECTNO>4414.406-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31320, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4414.4—Opening of Bids and Award of Contract</HD>
            <SECTION>
              <SECTNO>4414.401</SECTNO>
              <SUBJECT>Receipt and safeguarding of bids.</SUBJECT>
              <P>(a) Envelopes or other outer coverings containing identified bids shall be stamped or otherwise marked to show the office of receipt, the time of day received, and the date. The individual receiving the bids shall then initial under the marking.</P>
              <P>(b) A copy of the envelope or other covering bearing the documentation of a bid that was opened by mistake shall be retained in the file.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4414.402</SECTNO>
              <SUBJECT>Opening of bids.</SUBJECT>
              <P>The contracting officer, or duly authorized representative, shall be designated as the bid opening officer.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4414.406</SECTNO>
              <SUBJECT>Mistakes in bids.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4414.406-3</SECTNO>
              <SUBJECT>Other mistakes disclosed before award.</SUBJECT>
              <P>The Director, Office of Acquisition Management, is delegated the authority to make the determinations concerning mistakes in bid other than obvious clerical errors discovered prior to award. Each such determination shall be approved by the Office of General Counsel prior to notification of the bidder.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4415</EAR>
          <HD SOURCE="HED">PART 4415—CONTRACTING BY NEGOTIATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4415.4—Solicitation and Receipt of Proposals and Quotations</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4415.413</SECTNO>
              <SUBJECT>Disclosure and use of information before award.</SUBJECT>
              <SECTNO>4415.413-2</SECTNO>
              <SUBJECT>Alternate II.</SUBJECT>
              <SECTNO>4415.413-70</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <SECTNO>4415.413-71</SECTNO>
              <SUBJECT>Release of information during the solicitation phase.</SUBJECT>
              <SECTNO>4415.413-72</SECTNO>
              <SUBJECT>Disposition of unsuccessful proposals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4415.5—Unsolicited Proposals</HD>
              <SECTNO>4415.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>4415.505-1</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <SECTNO>4415.505-2</SECTNO>
              <SUBJECT>Unsolicited renewal proposals.</SUBJECT>
              <SECTNO>4415.506</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <SECTNO>4415.506-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4415.6—Source Selection</HD>
              <SECTNO>4415.612</SECTNO>
              <SUBJECT>Formal source selection.</SUBJECT>
              <SECTNO>4415.612-70</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <SECTNO>4415.612-71</SECTNO>
              <SUBJECT>Key participants.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4415.8—Price Negotiation</HD>
              <SECTNO>4415.803</SECTNO>
              <SUBJECT>General.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4415.10—Preaward, Award and Postaward Notifications, Protests, and Mistakes</HD>
              <SECTNO>4415.1003</SECTNO>
              <SUBJECT>Debriefing of unsuccessful offerors.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31320, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4415.4—Solicitation and Receipt of Proposals and Quotations</HD>
            <SECTION>
              <SECTNO>4415.413</SECTNO>
              <SUBJECT>Disclosure and use of information before award.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4415.413-2</SECTNO>
              <SUBJECT>Alternate II.</SUBJECT>
              <P>These alternate FAR procedures may be used if approved in writing by the head of the contracting activity.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="162"/>
              <SECTNO>4415.413-70</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>It is FEMA policy to use information contained in proposals only for evaluation purposes unless information (a) is generally available to the public, (b) is already the property of the Government, (c) is already available to the Government with unrestricted use rights, or (d) is or has been made available to the Government without restriction.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4415.413-71</SECTNO>
              <SUBJECT>Release of information during the solicitation phase.</SUBJECT>
              <P>No information shall be released during the solicitation phase, except as follows: Each solicitation for a negotiated acquisition shall name an individual in the contracting office to respond to inquiries concerning the solicitation and evaluation of proposals resulting from the solicitation. All questions whether of a procedural or substantive nature shall be directed to that individual. No one else shall exchange comments with offerors or potential offerors. Questions requiring clarification of substantive portions of the solicitation shall be answered by amendment of the solicitation. A copy of the amendment shall be sent to each recipient of the solicitation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4415.413-72</SECTNO>
              <SUBJECT>Disposition of unsuccessful proposals.</SUBJECT>
              <P>Unsuccessful proposals shall be disposed of as follows:</P>
              <P>(a) All but one copy of each unsuccessful proposal shall be destroyed as soon as practicable after contract award. The one remaining copy of each shall be retained in the official contract file.</P>
              <P>(b) Unsuccessful proposals shall not be used for purposes other than internal reference unless (1) written permission has been obtained from the offeror or (2) the proposal expressly states that unrestricted use is given to the Government regardless of its success in the competition.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4415.5—Unsolicited Proposals</HD>
            <SECTION>
              <SECTNO>4415.500</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <P>This subpart sets forth procedures for controlling the receipt, evaluation, and timely disposition of unsolicited proposals.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4415.505-1</SECTNO>
              <SUBJECT>Content of unsolicited proposals.</SUBJECT>
              <P>FEMA's Appropriation Act (Public Law 100—404, Section 407) requires the contractor to cost share if a research contract results from an unsolicited proposal. This requirement may be waived only when it would not be equitable for the Government to require cost sharing. To waive, (a) the offeror must certify in writing to the contracting officer that it has no commercial, production, educational, or service activities on which to use the results of the research and that it has no means of recovering any cost on such projects; and (b) the contracting officer must make a written determination that there is no measurable gain to the performing organization and no mutuality of interest. This determination shall be placed in the contract file. (See 4416.303.)</P>
              <CITA>[50 FR 31320, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4415.505-2</SECTNO>
              <SUBJECT>Unsolicited renewal proposals.</SUBJECT>
              <P>Renewal proposals, i.e., those for the extension or augmentation of current contracts, are subject to the same FAR and FEMA regulations, including the requirements of the Competition in Contracting Act, as are proposals for new contracts.</P>
              <CITA>[55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4415.506</SECTNO>
              <SUBJECT>Agency procedures.</SUBJECT>
              <P>(a) The Office of Acquisition Management is the point of contact for the receipt, acknowledgment, and handling of unsolicited proposals. Unsolicited proposals and requests for additional information regarding their preparation shall be submitted to: Federal Emergency Management Agency, Office of Acquisition Management, Policy &amp; Evaluation Division, 500 C Street SW, room 726, Washington, DC 20472.</P>

              <P>(b) Unsolicited proposals submitted to FEMA program, regional or field offices, or misdirected proposals, shall be immediately fowarded by recipients to the Headquarters Office of Acquisition Management.<PRTPAGE P="163"/>
              </P>
              <P>(c) Unsolicited proposals shall be submitted in an original and five copies at least six months in advance of the date the offeror desires to begin work so that there will be enough time to evaluate the proposal and negotiate a contract.</P>
              <CITA>[50 FR 31320, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4415.506-1</SECTNO>
              <SUBJECT>Receipt and initial review.</SUBJECT>
              <P>(a) The Office of Acquisition Management shall acknowledge an unsolicited proposal. Simultaneously, copies of the proposal shall be sent to the appropriate program offices for evaluation.</P>
              <P>(b) <E T="03">Information Requirements.</E> The Office of Acquisition Management shall keep records of unsolicited proposals received and shall provide prompt status information to requestors. The records shall include, as a minimum, the number of unsolicited proposals received, funded, and rejected during the fiscal year, the identity of the proposers and the office to which each was referred. These numbers shall be broken out by source (large business, small business, university, or nonprofit institutions).</P>
              <CITA>[50 FR 31320, Aug. 1, 1985, as amended at 55 FR 28207, July 10, 1990]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4415.6—Source Selection</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>55 FR 28207, July 10, 1990, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>4415.612</SECTNO>
              <SUBJECT>Formal source selection.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4415.612-70</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <P>(a) Formal source selection procedures shall apply to competitively negotiated acquisition when the estimated cost exceeds $25,000.</P>
              <P>(b) Formal source selection procedures do not apply to the acquisition of Architect-Engineer Services, acquisition from other Government agencies (including State and local), or any other acquisition which is specifically exempted by the Director.</P>
            </SECTION>
            <SECTION>
              <SECTNO>4415.612-71</SECTNO>
              <SUBJECT>Key participants.</SUBJECT>
              <P>(a) A proposal evaluation team shall be formed to conduct the technical evaluation of proposals. For acquisitions estimated to cost $10 million or less, the team shall be called the Technical Evaluation Panel (TEP) and shall consist of at least three (3) voting members. For acquisitions in excess of $10 milion, or those whose estimated cost does not exceed $10 million, but the selected source is likely to receive funding for future phase(s) of the same project, and the aggregate amount of such funding (including the current acquisition) is estimated to exceed $10 million, the team shall be called the Source Evaluation Board (SEB) and shall consist of at least five (5) voting members.</P>
              <P>(b) The Source Selection Official or the Contracting Officer, depending upon the dollar amount of the proposed award and any anticipated additions to it, shall select a source for contract award. For acquisitions estimated to exceed $10 million, the program head, i.e., Associate Director/Administrator, of the acquiring office shall be the Source Selection Official. For acquisitions estimated to cost $10 million or less, the Contracting Officer shall be the Source Selection Official.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4415.8—Price Negotiation</HD>
            <SECTION>
              <SECTNO>4415.803</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>When all efforts to get a contractor to agree to a reasonable price or fee have failed, the contracting officer shall refer the matter to the head of the contracting activity.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4415.10—Preaward, Award and Postaward Notifications, Protests, and Mistakes</HD>
            <SECTION>
              <SECTNO>4415.1003</SECTNO>
              <SUBJECT>Debriefing of unsuccessful offerors.</SUBJECT>
              <P>Any unsuccessful offeror may write for a debriefing within two months after contract award. The contracting officer shall provide the debriefing.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4416</EAR>
          <HD SOURCE="HED">PART 4416—TYPES OF CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4416.3—Cost-Reimbursement Contracts</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4416.303</SECTNO>
              <SUBJECT>Cost-sharing contracts.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <PRTPAGE P="164"/>
              <HD SOURCE="HED">Subpart 4416.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
              <SECTNO>4416.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
              <SECTNO>4416.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31321, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4416.3—Cost-Reimbursement Contracts</HD>
            <SECTION>
              <SECTNO>4416.303</SECTNO>
              <SUBJECT>Cost-sharing contracts.</SUBJECT>
              <P>(a) This subsection sets forth basis guidelines governing cost-sharing contract.</P>
              <P>(b)(1) Cost sharing with non-Federal organizations shall be encouraged in contracts for basic or applied research in which both parties have considerable interest.</P>
              <P>(2) Contracting officers shall assure themselves of the following in determining contract type:</P>
              <P>(i) The research effort has more than minor relevance to the non-Federal activities of the performing organization and is not primarily a service to the Government.</P>
              <P>(ii) The performing organization has adequate non-Federal sources of funds from which to make a cash contribution.</P>
              <P>(iii) The performing organization is engaged primarily in production or other service activities, as opposed to research and development, and is in a favorable position to make a cost contribution.</P>
              <P>(iv) The principal purpose of the contract is research.</P>
              <P>(v) Payment of the full cost of the project is not necessarily in order to obtain the services of the particular organization.</P>
              <P>(3) FEMA's Appropriation Act requires cost sharing by the contractor under research contracts resulting from unsolicited proposals. See 4415.505-1.</P>
              <P>(c) Guidelines for determining the amount of cost sharing.</P>
              <P>(1) For educational institutions and other not-for-profit or non-profit organizations, cost sharing may vary from 1 to 50 percent of the costs of the project. In some cases it may be appropriate for educational institutions to provide a higher degree of cost sharing, such as when the cost of the research consists primarily of the academic-year salary of faculty members, or when the equipment acquired by the institution for the project will be of significant value to the institution in its educational activities.</P>
              <P>(2) The amount of cost participation by commercial or industrial organizations may vary from 1 percent or less to more than 50 percent of total project cost, depending upon the extent to which the research effort is likely to enhance the performing organization's capability, expertise, or competitive position, and the value of such enhancement to the performing organization. Recognize, however, that organizations predominately engaged in research and development with little other activity may not be able to derive a monetary benefit from the research under Federal agreements.</P>
              <P>(3) A fee 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 normal fees on the research. However, if the research is expected to be of major 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 rather than sharing the costs of the project.</P>
              <P>(4) Each cost-sharing contract negotiated shall contain the clause in 4452.216-70.</P>
              <CITA>[50 FR 31321, Aug. 1, 1985, as amended at 55 FR 28208, July 10, 1990]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4416.6—Time-and-Materials, Labor-Hour, and Letter Contracts</HD>
            <SECTION>
              <SECTNO>4416.603</SECTNO>
              <SUBJECT>Letter contracts.</SUBJECT>
            </SECTION>
            <SECTION>
              <SECTNO>4416.603-3</SECTNO>
              <SUBJECT>Limitations.</SUBJECT>
              <P>A letter contract may be used only if the head of the contracting activity executes a determination and finding that no other contract type is suitable.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="165"/>
          <EAR>Pt. 4417</EAR>
          <HD SOURCE="HED">PART 4417—SPECIAL CONTRACTING METHODS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4417.70—General</HD>
            <SECTION>
              <SECTNO>4417.7001</SECTNO>
              <SUBJECT>Preference for local contractors.</SUBJECT>
              <P>(a) This subsection establishes policies relating to local contractor preference to receive contract awards resulting from competitive solicitations under a Presidentially declared major disaster or emergency operation.</P>

              <P>(b) The geographic areas to which local contractor preference shall apply are those affected by the Presidentially declared disaster and designated in the <E T="04">Federal Register</E> by the Associate Director, State and Local Programs and Support, or his designee. Geographical areas shall be identified by county or other political subdivision.</P>
              <P>(c) Pursuant to the provisions of Pub. L. 93-288, the provisions set forth in 4452.217-70 shall be included in each competitive solicitation for disaster relief response.</P>
              <P>(d) If the contracting officer determines it to be in the best interest of the Government, the provision set forth in 4452.217-70 need not be included in solicitations. Such determination shall be documented in the contract file with a findings and determination signed by the contracting officer and approved by the head of the contracting activity.</P>
              <P>(e) If the contracting officer makes the determination of paragraph (d) of this section, local participation may be encouraged by:</P>
              <P>(1) Setting the procurement aside for labor surplus area if the disaster area has been established as a labor surplus area;</P>
              <P>(2) Advertising only in the local disaster area; and/or</P>
              <P>(3) Dividing large requirements into several smaller requirements.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="166"/>
        <HD SOURCE="HED">SUBCHAPTER D—SOCIOECONOMIC PROGRAMS</HD>
        <PART>
          <EAR>Pt. 4419</EAR>
          <HD SOURCE="HED">PART 4419—SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4419.2—Policies</HD>
            <SECTION>
              <SECTNO>4419.201</SECTNO>
              <SUBJECT>General policy.</SUBJECT>
              <P>(a) The Director, Office of Personnel and Equal Opportunity, is also the Director, Office of Small and Disadvantaged Business Utilization.</P>
              <P>(b) The Chief, Policy and Evaluation Division, Office of Acquisition Management, is the small business technical advisor.</P>
              <P>(c) Each contracting officer is a small and disadvantaged business utilization specialist.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985, as amended at 55 FR 28208, July 10, 1990]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4424</EAR>
          <HD SOURCE="HED">PART 4424—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4424.2—Freedom of Information Act</HD>
            <SECTION>
              <SECTNO>4424.202</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>FEMA's Freedom of Information Act policy is codified at 44 CFR part 5.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4426</EAR>
          <HD SOURCE="HED">PART 4426—OTHER SOCIOECONOMIC PROGRAMS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>4426.101</SECTNO>
            <SUBJECT>General policy.</SUBJECT>
            <SECTNO>4426.102</SECTNO>
            <SUBJECT>Accessibility of meetings, conferences and seminars to persons with disabilities.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SECTION>
            <SECTNO>4426.101</SECTNO>
            <SUBJECT>General policy.</SUBJECT>
            <P>Section 504 of the Rehabilitation Act of 1973, as amended, prohibits Federal agencies from discriminating against qualified persons on the grounds of disability. The law not only applies to internal employment practices but extends to agency interaction with members of the public who participate in FEMA programs. (FEMA's implementation of section 504 of this Act is codified at 44 CFR part 16.)</P>
            <CITA>[55 FR 28208, July 10, 1990]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>4426.102</SECTNO>
            <SUBJECT>Accessibility of meetings, conferences and seminars to persons with disabilities.</SUBJECT>
            <P>It is FEMA's policy to extend the provisions of the Rehabilitation Act of 1973, as amended, to vendors who interact with the public while under contract to FEMA. Therefore, FEMA Clause 4452.226-01, Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities, shall be included in FEMA contracts over $25,000 when in the performance of such contract the contractor will plan meetings, seminars and conferences which may be attended by persons with disabilities.</P>
            <CITA>[55 FR 28208, July 10, 1990]</CITA>
          </SECTION>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="167"/>
        <HD SOURCE="HED">SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS</HD>
        <PART>
          <EAR>Pt. 4429</EAR>
          <HD SOURCE="HED">PART 4429—TAXES</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4429.1—General</HD>
            <SECTION>
              <SECTNO>4429.101</SECTNO>
              <SUBJECT>Resolving tax problems.</SUBJECT>
              <P>(a) The Office of General Counsel is responsible, with FEMA, for handling all tax problems. It also is responsible for asking the Department of Justice for representation of intervention in proceedings concerning taxes.</P>
              <P>(b) The contracting officer shall request, in writing, the assistance of the Office of General Counsel in resolving a tax problem. The request shall detail the problem and include supporting information. The Office of General Counsel shall inform the contracting officer of the disposition of the tax problem and the contracting officer will tell the contractor.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4432</EAR>
          <HD SOURCE="HED">PART 4432—CONTRACT FINANCING</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4432.4—Advance Payments</HD>
            <SECTION>
              <SECTNO>4432.402</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The head of the contracting activity has responsibility and authority to make findings and determinations and to approve or disapprove contract terms.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4433</EAR>
          <HD SOURCE="HED">PART 4433—PROTESTS, DISPUTES AND APPEALS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4433.103—Protests to the Agency</HD>
            <SECTION>
              <SECTNO>4433.103</SECTNO>
              <SUBJECT>Protests to the agency.</SUBJECT>
              <P>(a) Protests should be filed on a timely basis to the Contracting Officer specified in the solicitation or contract. Protests are considered timely if, when based on alleged improprieties in a solicitation which are apparent prior to the bid/proposal closing time, they are filed not later than the closing date, and in other cases they are filed within 10 working days after the basis of the protest is known or should have been known whichever is earlier.</P>
              <P>(b) If a protest is received prior to award, the Contracting Officer shall notify all offerors within one full working day after consultation with the Office of General Counsel (OGC). An award will not be made unless a written determination is approved by the Head of the Contracting Activity in accordance with the criteria set forth in FAR 33.103.</P>
              <P>(c) If a protest is received after award, the Contracting Officer shall give careful consideration to suspending contract performance if it appears likely that the award may be invalidated and the Government's interest will not be harmed by a delay in the receipt of goods or services. The Contracting Officer's determination to suspend performance should be made in writing and approved by the Head of the Contracting Activity after consultation with OGC. If the decision is to proceed with contract award or continue with contract performance, the Contracting Officer shall include the written findings in the file and shall give written notice of the decision to the protestor and other interested parties.</P>
              <P>(d) The Contracting Officer/Contract Specialist shall prepare the final decision for approval by the Head of the Contracting Activity. The protestor shall be notified of the final decision regarding its protest within 30 working days after receipt of the protest.</P>
              <CITA>[55 FR 28208, July 10, 1990]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="168"/>
        <HD SOURCE="HED">SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING</HD>
        <PART>
          <EAR>Pt. 4435</EAR>
          <HD SOURCE="HED">PART 4435—RESEARCH AND DEVELOPMENT CONTRACTING</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SECTION>
            <SECTNO>4435.003</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>Cost-sharing policy for research and development contracts is stated in 4415.502-70.</P>
            <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 4436</EAR>
          <HD SOURCE="HED">PART 4436—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4436.6—Architect-Engineer Services</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4436.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <SECTNO>4436.602-4</SECTNO>
              <SUBJECT>Selection authority.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4436.6—Architect-Engineer Services</HD>
            <SECTION>
              <SECTNO>4436.602-2</SECTNO>
              <SUBJECT>Evaluation boards.</SUBJECT>
              <P>(a) Each architect-engineer evaluation board, permanent or ad hoc, shall have at least five voting members and one alternate. These will be Federal employees. A majority of the voting members will be from the program office.</P>
              <P>(b) During the selection process, a board member or advisor may have, or appear to have, a conflict of interest regarding a firm in the competition. Immediately upon becoming aware of a potential conflict or an appearance of a conflict, the member or advisor shall notify the board chairperson who shall, in turn, inform the Office of General Counsel. The Office of General Counsel shall make a final determination on the conflict issue.</P>
              <P>(c) The evaluation board is to be insulated from outside pressures. Information concerning board deliberations shall be divulged only to persons having a need-to-know.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4436.602-4</SECTNO>
              <SUBJECT>Selection authority.</SUBJECT>
              <P>(a) Heads of program offices which may require architect-engineer services are designated as selection authorities for acquisition of architect-engineer services.</P>
              <P>(b) A determination shall be sent to the contracting officer listing the selected firms in order of preference.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 4450</EAR>
          <HD SOURCE="HED">PART 4450—EXTRAORDINARY CONTRACTUAL ACTIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4450.2—Delegation of and Limitations on Exercise of Authority</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4440.201</SECTNO>
              <SUBJECT>Delegation of authority.</SUBJECT>
              <SECTNO>4450.202</SECTNO>
              <SUBJECT>Contract adjustment boards.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>50 U.S.C. 1431-1435; E.O. 10789; E.O. 12148.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4450.2—Delegation of and Limitations on Exercise of Authority</HD>
            <SECTION>
              <SECTNO>4450.201</SECTNO>
              <SUBJECT>Delegation of authority.</SUBJECT>
              <P>All authority granted by 48 CFR 50.101 may be exercised by the Director of the Federal Emergency Management Agency. Such authority to approve, authorize, and direct appropriate action under this Part and to make all appropriate determinations and findings which do not obligate the United States in excess of $50,000 are delegated to the Director, Office of Acquisition Management. Such authority to approve, and direct appropriate action under this Part and to make all appropriate determinations and findings which may obligate the United States in excess of $50,000 are delegated to the FEMA Contract Adjustment Board. The limitations contained in 48 CFR 50.201 and 50.202 apply.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4450.202</SECTNO>
              <SUBJECT>Contract adjustment boards.</SUBJECT>

              <P>As cases arise under the Act, the Director of FEMA may appoint, as needed, a FEMA Contract Adjustment Board consisting of one senior staff <PRTPAGE P="169"/>member, not otherwise involved with the action under consideration, from each of the following offices:</P>
              <P>(a) Acquisition Management, who shall act as Chairperson</P>
              <P>(b) General Counsel</P>
              <P>(c) Comptroller.</P>
              <CITA>[50 FR 31322, Aug. 1, 1985]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
      <SUBCHAP TYPE="P">
        <PRTPAGE P="170"/>
        <HD SOURCE="HED">SUBCHAPTER H—CLAUSES AND FORMS</HD>
        <PART>
          <EAR>Pt. 4452</EAR>
          <HD SOURCE="HED">PART 4452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart 4452.2—Texts of Provisions and Clauses</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>4452.216-70</SECTNO>
              <SUBJECT>Consideration and payment (Cost-Sharing).</SUBJECT>
              <SECTNO>4452.217-70</SECTNO>
              <SUBJECT>Preference for local contractors in Presidentially declared major disasters or emergencies.</SUBJECT>
              <SECTNO>4452.226-1</SECTNO>
              <SUBJECT>Accessibility of meetings, conferences and seminars to persons with disabilities.</SUBJECT>
              <SECTNO>4452.227-70</SECTNO>
              <SUBJECT>Reproduction of reports.</SUBJECT>
              <SECTNO>4452.227-71</SECTNO>
              <SUBJECT>Coordination of Federal reporting requirements.</SUBJECT>
              <SECTNO>4452.227-72</SECTNO>
              <SUBJECT>Publication.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 486(c); Reorganization Plan No. 3 of 1978.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>50 FR 31323, Aug. 1, 1985, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart 4452.2—Texts of Provisions and Clauses</HD>
            <SECTION>
              <SECTNO>4452.216-70</SECTNO>
              <SUBJECT>Consideration and payment (Cost-Sharing).</SUBJECT>
              <P>As prescribed in 4416.303, include the following clause in research and development contracts with non-Federal organizations:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Consideration and Payment (Cost-Sharing) (Mar 1989)</HD>
                <P>(a) The estimated cost for the performance of this contract is $____. The contractor agrees to bear without reimbursement by the Government __% of the cost for performance hereunder. Such cost sharing shall be effected as set forth in paragraph (b) of this clause.</P>
                <P>(b) Public vouchers or invoice shall be submitted in an original and five (5) copies and shall show the total cost incurred for the period for which the voucher or invoice is submitted, the cumulative total of costs incurred through the billing period, and the percentage of costs to be reimbursed by the Government. However, the Government is not obligated to reimburse the contractor for the Government's share of the costs in excess of ____% of such amount. The Government shall not be obligated to reimburse the contractor for the Government's share of the costs in excess of $____ nor is the contractor obligated by this contract to expend his own funds in excess of $____.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[55 FR 28208, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4452.217-70</SECTNO>
              <SUBJECT>Preference for local contractors in Presidentially declared major disasters or emergencies.</SUBJECT>
              <P>Pursuant to the provisions of Pub. L. 93-288 and 4415.105-71, the following provisions shall be included in each competitive solicitation for on-site disaster relief response:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Preference for Local Contractors (Apr 1984)</HD>
                <P>In awarding any contract pursuant to this solicitation, the Government shall give preference to local organizations, firms, and individuals residing or doing business primarily in the geographic area identified as the disaster area.</P>
                <P>The contracting officer reserves the right to request offerors to furnish documentation to demonstrate eligibility for local contractor preference. To be eligible, the offeror shall have been residing (in the case of individuals) or doing the major portion of its business (in the case of business entities) in the disaster area.</P>
                <P>An offeror for which eligibility is established (local offeror) shall be permitted to meet the lowest price received from an otherwise eligible non-local offeror, provided that the proposed price from the local offeror does not exceed 130 percent of the price of the non-local offeror. The lowest priced local offeror within 130 percent of the lowest non-local offeror shall have the first chance to meet the non-local price. If the local offeror meets the lowest non-local price and is determined to be responsible, award shall be made. If the non-local offer is not met, the next lowest local offeror within 130 percent shall have the chance to meet the lowest non-local price. This process shall continue until award is made to a local offeror within the 130 percent requirement or the supply of local offerors is exhausted and award made to the lowest non-local offeror.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>4452.226-1</SECTNO>
              <SUBJECT>Accessibility of meetings, conferences and seminars to persons with disabilities.</SUBJECT>

              <P>Include the following clause in contracts under which the contractor will <PRTPAGE P="171"/>plan meetings, conferences and seminars which may be attended by persons with disabilities.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities (Jan 1989)</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 below. This plan shall include a provision for ascertaining the number and types of disabled individuals planning to attend the meeting, conference, or seminar. The plan shall be submitted to the Contracting 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 accessible to persons with disabilities. The Contractor shall determine, by an on-site inspection if necessary, that the following minimum accessibility requirements are met, or suitable modifications are made to meet these requirements, before the meeting:</P>
                <P>(1) <E T="03">Parking.</E> (i) Where parking is available on or adjacent to the site one 12′ wide space must be set aside for the car of each mobility impaired attendee. The space need not be permanently striped but may be temporarily marked by signs, ropes, or other means satisfactory to carry out this provision.</P>
                <P>(ii) Where parking is not available on or adjacent to the site, valet parking or other alternative means must be available to assist disabled attendees. Alternate means must be satisfactory in the judgment of the Contracting Officer.</P>
                <P>(2) <E T="03">Entrances.</E> (i) “Entrances” shall include at least one accessible entrance from the street/sidewalk level, and at least one accessible entrance from any available parking facility.</P>
                <P>(ii) The entrance shall be level or accessible by ramp with an incline that allows independent negotiation by a person in a wheelchair. In general, the slope of the incline shall be no more than 1″ rise per foot of ramp length (1:12).</P>
                <P>(iii) Entrance doorways shall be at least 30″ in clear width and capable of operation by persons with disabilities. Revolving doors, regardless of foldback capability, will not meet this requirement.</P>
                <P>(3) <E T="03">Meeting Rooms.</E> (i) Meeting room access from the main entrance area must be level or at an independently negotiable incline (approximately 1:12) and/or served by elevators from the main entrance level. All elevators shall be capable of accommodating a wheelchair 29″ wide by 45″ long.</P>
                <P>(ii) Meeting rooms shall be on one level or, if on different levels, capable of being reached by elevators or by ramps that can be independently negotiated by a person in a wheelchair. Doorways to all meeting rooms shall be at least 30″ in clear width.</P>
                <P>(iii) The interior of the meeting room shall be on one level or ramped so as to be independently negotiable for a person in a wheelchair.</P>
                <P>(iv) Stages, speaker platforms, etc. which are to be used by persons in wheelchairs must be accessible by ramps or lifts. When used, the ramps may not necessarily be independently negotiable if space does not permit. However, any slope over 1:12 must be approved by the Contracting Officer. Each case is to be judged on its own merits.</P>
                <P>(v) If a meeting room with fixed seating is utilized, seating arrangements for persons in wheelchairs shall be made so that these persons are incorporated into the group rather than isolated on the perimeter of the group.</P>
                <P>(4) <E T="03">Restrooms.</E> (i) Restrooms shall have level access, signs indicating accessibility, and doorways at least 30″ in clear width.</P>
                <P>(ii) Sufficient turning space within restrooms shall be provided for independent use by a person in a wheelchair 29″ wide by 45″ long. A space 60″ by 60″ or 63″ by 56″ of unobstructed floor space as measured 12″ above the floor is acceptable by standard; other layout will be accepted if it can be demonstrated that they are usable as indicated.</P>
                <P>(iii) There will be a restroom for each sex or a unisex restroom with at least one toilet stall capable of accommodating a wheelchair 29″ wide by 45″ long (by standard, the minimum is 3′-0″ by 43′-83″), with outswinging door or private curtains. Wall mounted grab bars are required.</P>
                <P>(iv) When separate restrooms have been set up for mobility impaired persons, they shall be located adjacent to the regular restrooms and shall be fully accessible.</P>
                <P>(5) <E T="03">Eating Facilities.</E> (i) Eating facilities in the meeting facility must be accessible under the same general guidelines as are applied to meeting rooms.</P>
                <P>(ii) If the eating facility is a cafeteria, the food service area (cafeteria line) must allow sufficient room for independent wheelchair movement and accessibility to food for persons in wheelchairs, and cafeteria staff shall be available to assist disabled persons.</P>
                <P>(6) <E T="03">Overnight Facilities.</E> If overnight accommodations are required:</P>

                <P>(i) Sufficient accessible guest rooms to accommodate each attendee who is disabled shall be located in the facility where the meeting, conference, or seminar is held, or in a facility housing the attendees which is conveniently located hereby, whichever is satisfactory to the Contracting Officer.<PRTPAGE P="172"/>
                </P>
                <P>(ii) Overnight facilities shall provide for the same minimum accessibility requirements as the facility utilized for guest room access from the main entrance area shall be level, ramped at an independently negotiable incline (1:12), and/or served by elevators capable of accommodating a wheelchair 29″ wide by 45″ long.</P>
                <P>(iii) Doorways to guest rooms, including the doorway to the bathroom, shall be at least 30″ in clear width.</P>
                <P>(iv) Bathrooms shall have wall mounted grab bars at the tub and water closet.</P>
                <P>(v) Guest rooms for persons with a disability shall be provided at the same rate as a guest room for other attendees.</P>
                <P>(7) <E T="03">Water Fountains.</E> Water fountains shall be accessible to disabled persons, or have cup dispensers for use by persons in wheelchairs.</P>
                <P>(c) Provisions of Services for Sensory Impaired Attendees.</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 sensory impaired persons 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 sensory impaired persons 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 teletype number for the hearing impaired.</P>
                <P>(2) The Contractor shall provide, at no cost to the individual, those services required by persons with sensory impairments to insure their complete participation in the meeting, conference, or seminar.</P>
                <P>(3) As a minimum, when requested in advance, the Contractor shall provide the following services:</P>
                <P>(i) For hearing impaired persons, qualified interpreters. Provisions will also be made for volume controlled phone lines and, if necessary, transportation to local teletype equipment to enable hearing impaired individuals to receive and send meeting related calls. If local teletype equipment is not available, the Contractor shall provide on-site teletype equipment. Also, the meeting rooms will be adequately illuminated so signing by interpreters can be easily seen.</P>
                <P>(ii) For vision impaired persons, 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 the visually and hearing impaired. Readers, braille translations, and/or tape recordings are all acceptable. These materials shall be available to sensory impaired individuals upon their arrival.</P>
                <P>(4) The Contractor is responsible for making every effort to ascertain the number of sensory impaired individuals who plan to attend the meeting, conference, or seminar. However, if it can be determined that there will be no sensory impaired person (deaf and/or blind) in attendance, the provision of those services under paragraph (c) for the non-represented group, or groups, is not required.</P>
              </EXTRACT>
              <APPRO>(Approved by the Office of Management and Budget under control number 3067-0213)</APPRO>
              <HD SOURCE="HD3">(End of clause)</HD>
              <CITA>[55 FR 28208, July 10, 1990]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>4452.227-70</SECTNO>
              <SUBJECT>Reproduction of reports.</SUBJECT>
              <P>Include the following clause in the contract when the product is a report, data or other written material.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Reproduction of Reports (Apr 1984)</HD>
                <P>Reproduction of reports, data, or other written material, if required herein, is authorized provided that the material produced does not exceed 5,000 production units of any page and that items consisting of multiple pages do not exceed 25,000 production units in aggregate. The aggregate number of production units is to be determined by multiplying pages times copies. A production unit is one sheet, size 8<FR>1/2</FR>×11 inches or less, printed on one side only, and in one color. All copy preparation to produce camera-ready copy for reproduction must be set by methods other than hot metal typesetting. The reports should be produced by methods employing stencils, masters, and plates which are to be used on single-unit duplicating equipment no larger than 11 by 17 inches with a maximum image of 10<FR>3/4</FR> by 14<FR>1/4</FR> inches and are prepared by methods or devices that do not utilize reusable contact negatives and/or positives prepared with a camera requiring a darkroom. All reproducibles (camera-ready copies for reproduction by photo offset methods) shall become the property of the Government and shall be delivered to the Government with the report, data, or other written material.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>4452.227-71</SECTNO>
              <SUBJECT>Coordination of Federal reporting requirements.</SUBJECT>
              <P>The following clause shall be included in contracts when appropriate:</P>
              <EXTRACT>
                <HD SOURCE="HD1">Coordination of Federal Reporting Services (Apr 1984)</HD>

                <P>In the event that it is a contractual requirement to collect information from 10 or more public respondents, the provisions of 44 <PRTPAGE P="173"/>U.S.C. chapter 35 (Coordination of Federal Reporting Requirements), shall apply to this contract. The contractor shall obtain through the project Officer the required office of Management and Budget clearance before making public contacts for the collection of data or expending any funds for such collection. The authority to proceed with the collection of data from public respondents and the expenditure of funds therefore shall be in writing signed by the Contracting Officer.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
            <SECTION>
              <SECTNO>4452.227-72</SECTNO>
              <SUBJECT>Publication.</SUBJECT>
              <P>The following clause shall be used in all contracts under which it is anticipated that a report will be a product.</P>
              <EXTRACT>
                <HD SOURCE="HD1">Publication (Apr 1984)</HD>
                <P>(a) Definition. For the purpose of this clause “publication” includes (1) any document containing information intended for public consumption or (2) the act of, or any act which may result in, disclosing information to the public.</P>
                <P>(b) General. The results of the research and development and studies conducted under this contract are to be made available to the public through dedication, assignment to the Government, or other such means as the Director of the Federal Emergency Management Agency shall determine.</P>
                <P>(c) Reports furnished the Government. All intermediate and final reports of the research and development and studies conducted hereunder shall indicate on the cover or other initial page that the research and development and studies forming the basis for the report were conducted pursuant to a contract with the Federal Emergency Management Agency. Such reports are official Government property and may not be published or reproduced (in toto, in verbatim excerpt, or in a form approximating either of these) as an unofficial paper or article. The contractor or technical personnel (each employee or consultant working under the administrative direction of the contractor or any subcontractor hereunder) may publish such reports in whole or in part in a non-Government publication only in accordance with this paragraph (c) and paragraph (e)(1) of this clause.</P>
                <P>(d) Publication by Government. The Government shall have full right to publish all information, data, and findings developed as a result of the research and development and studies conducted hereunder.</P>
                <P>(e) Publication by contractor on technical personnel.</P>
                <P>(1) Publication in whole or in part of contractor's reports furnished the Government. Unless such reports have been placed in the public domain by Government publication, the contractor or technical personnel (each employee or consultant working under the administrative direction of the contractor or any subcontractor hereunder) may publish a report furnished the Government, in toto or in verbatim excerpt, but consistent with paragraph (c) of this clause may not secure copyright therein, subject to the following conditions and the conditions in paragraph (e)(4) and paragraph (f).</P>
                <P>(i) During the first six months after submission of the full final report, if written permission to publish is obtained from the contracting officer.</P>
                <P>(ii) After six months following submission of the full report, and if paragraph (e)(3) is inapplicable, if a foreword or footnote in the non-Government publication indicates the source of the verbatim material.</P>
                <P>(2) Publication, except vebatim excerpts, concerning or based in whole or in part on results of research and development and studies hereunder. The contractor or technical personnel may issue a publication concerning or based in whole or in part on the results of the research and development and studies conducted under this contract and may secure copyright therein, but in so publishing is not authorized thereby to inhibit the unrestricted right of the Director of the Federal Emergency Management Agency to disclose or publish, in such manner as he may deem to be in the public interest, the results of such research and development and studies to the following conditions and the requirement in paragraph (e)(4):</P>
                <P>(i) During the first six months after submission of the full final report, and if paragraph (e)(3) is inapplicable, if written waiver of the waiting period is obtained from the contracting officer.</P>

                <P>(ii) After six months following submission of the full final report, and if paragraph (e)(3) is inapplicable, subject to Government exercise of an option that the publication contain a foreword or initial footnote substantially as follows:
                </P>
                <FP>The (research) (development) (studies) forming (part of) the basis for this publication were conducted pursuant to a contract with the Federal Emergency Management Agency. The substance of such (research) (development) (studies) is dedicated to the public. The author and publisher are solely responsible for the accuracy of statements or interpretations contained therein.</FP>
                

                <P>(3) General conditions if FEMA determines that contractor's final report contains patentable subject matter developed in contract performance. If the contracting officer determines that the contractor's full final report contains patentable subject matter developed in the performance of this contract and so notifies the contractor in writing prior to six months from date of submission of such report, no publication of verbatim excerpts <PRTPAGE P="174"/>from contractor's reports or publication concerning or based in whole or in part on the results of the research and development and studies hereunder shall be made without the written consent of the contracting officer.</P>
                <P>(4) Copies of contractor and technical personnel publications to be furnished the Government. The contractor or technical personnel will furnish the contracting officer six copies of any publications which are based in whole or in part on the results of the research and development and studies conducted under this contract.</P>
                <P>(f) Administratively confidential information. The contractor shall not publish or otherwise disclose, except to the Government and except matters of public record any information or data obtained hereunder from private individuals, organizations, or public agencies in a publication whereby the information or data furnished by any particular person or establishment can be identified, except with the consent of such person or establishment.</P>
                <P>(g) Inclusion of provisions in contractor's agreements. The contractor shall include provisions appropriate to effectuate the purposes of this clause in all contracts of employment with persons who perform any part of the research or development or study under this contract and in any consultant's agreements or subcontracts involving research or development or study thereunder.</P>
              </EXTRACT>
              <HD SOURCE="HD3">(End of clause)</HD>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 51 (10-1-05 Edition)</LRH>
      <RRH>Department of the Army</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="175"/>
          <HD SOURCE="HED">CHAPTER 51—DEPARTMENT OF THE ARMY ACQUISITION REGULATIONS</HD>
          <P>(Parts 5100 to 5199)</P>
        </TOCHD>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>5108</PT>
          <SUBJECT>Required sources of supplies and services</SUBJECT>
          <PG>177</PG>
          <PT>5119</PT>
          <SUBJECT>Small business and small disadvantaged business concerns</SUBJECT>
          <PG>177</PG>
          <PT>5125</PT>
          <SUBJECT>Foreign acquisition</SUBJECT>
          <PG>179</PG>
          <PT>5145</PT>
          <SUBJECT>Government property</SUBJECT>
          <PG>180</PG>
          <PT>5152</PT>
          <SUBJECT>Solicitations provisions and contract clauses</SUBJECT>
          <PG>181</PG>
        </CHAPTI>
      </TOC>
      <PART>
        <PRTPAGE P="177"/>
        <EAR>Pt. 5108</EAR>
        <HD SOURCE="HED">PART 5108—REQUIRED SOURCES OF SUPPLIES AND SERVICES</HD>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35 and DOD FAR Supplement 201.301.</P>
        </AUTH>
        <SECTION>
          <SECTNO>5108.070</SECTNO>
          <SUBJECT>Definitions.</SUBJECT>
          <P>As used in this section:</P>
          <P>
            <E T="03">Memorandum of Understanding Planned Producer</E> means an industrial firm which has indicated its willingness to produce specified military items in a declared national emergency by completing a Memorandum of Understanding with an accompanying Industrial Preparedness Program Production Capacity Survey (DD Form 1519 TEST). The firm is eligible to be solicited for all buys of the item(s) over $25,000 excluding acquisitions for which competition is restricted to the Restricted Specified Base or Limited Fee Planned Producers in accordance with an approved Justification and Approval.</P>
          <P>
            <E T="03">Limited Fee Planned Producer</E> means an industrial firm which is contractually bound by inclusion of AFARS 5152.208-9001 in their contract to maintain production capacity for a negotiated length of time, to conduct subcontractor planning, and to produce specified military items in the event of a declared national emergency or in the event of a declared national emergency or contingencies short of a declared national emergency. The firm is eligible to be solicited for all buys of the item(s) over $25,000 except acquisitions for which competition is restricted to the Restricted Specified Base in accordance with an approved Justification and Approval.</P>
          <P>
            <E T="03">Restricted Specified Base Planned Producer</E> means an industrial firm which is contractually bound to maintain production capacity for a negotiated length of time, to conduct subcontractor planning, and to produce specified military items in the event of a declared national emergency, or contingencies short of a declared national emergency. The firm is eligible to be solicited for all buys of the item(s) over $25,000.</P>
          <P>(g)(1)(i) Solicitation of Memorandum of Understanding Planned Producers in all acquisitions over $25,000 which are for items for which they have been designated as a Memorandum of Understanding Planned Producer except those restricted to the Restricted Specified Base Planned Producers or Limited Fee Planned Producers in accordance with an approved Justification and Approval.</P>
          <P>(ii) Solicitation of Limited Fee Planned Producers in all acquisitions over $25,000 which are for items for which they have been designated as a Limited Fee Planned Producer, except those restricted to the Restricted Specified Base.</P>
          <P>(iii) Solicitation of Restricted Specified Base Planned Producers in all acquisitions over $25,000 which are for items for which they have been designated as a Restricted Specified Base Planned Producer.</P>
          <P>(g)(4) The clause at 5152.208-9001 is to be used for all contracted planning efforts.</P>
          <CITA>[54 FR 38682, Sept. 20, 1989]</CITA>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 5119</EAR>
        <HD SOURCE="HED">PART 5119—SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS</HD>
        <CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5119.10—Small Business Competitiveness Demonstration Program</HD>
            <SECHD>Sec.</SECHD>
            <SECTNO>5119.1001</SECTNO>
            <SUBJECT>General.</SUBJECT>
            <SECTNO>5119.1002</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>5119.1003</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>5119.1004</SECTNO>
            <SUBJECT>Participating agencies.</SUBJECT>
            <SECTNO>5119.1005</SECTNO>
            <SUBJECT>Applicability.</SUBJECT>
            <SECTNO>5119.1070</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>
            <SECTNO>5119.1070-2</SECTNO>
            <SUBJECT>Emerging small business set-aside.</SUBJECT>
            <SECTNO>5119.1070-3</SECTNO>
            <SUBJECT>Identification and reporting.</SUBJECT>
            <SECTNO>5119.1071</SECTNO>
            <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
          </SUBPART>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35, FAR 1.301 and DOD FAR Supplement 201.301.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>54 FR 15410, Apr. 18, 1989, unless otherwise noted.</P>
        </SOURCE>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5119.10—Small Business Competitiveness Demonstration Program</HD>
          <SECTION>
            <SECTNO>5119.1001</SECTNO>
            <SUBJECT>General.</SUBJECT>

            <P>This subpart implements Pub. L. 100-656, section 722, “Expanding Small Business Participation in Dredging” <PRTPAGE P="178"/>(the Dredging Program). The Program will be conducted through 30 September 1992.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1002</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>(S-90) “Emerging Small Business Reserve Amount” (ESBRA) means the dollar threshold for contracting opportunities in dredging, below which competition shall be conducted exclusively among emerging small business concerns. This amount is set forth in 5119.1070-2(a)(S-90).</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1003</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>(c)(S-90) The purpose of the Dredging Program is to—</P>
            <P>(i) Expand small business and emerging small businesses (ESB) participation in contracting opportunities for dredging through restricted competition.</P>
            <P>(ii) Demonstrate the existence of a sufficient number of small businesses and ESBs which meet the current size standard for Standard Industrial Code (SIC) Code 1629 (Dredging and Surface Cleanup Activities) as an indicator of the adequacy of the current size standard.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1004</SECTNO>
            <SUBJECT>Participating agencies.</SUBJECT>
            <P>Participation in this Dredging Program is limited to the Department of the Army, Corps of Engineers.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1005</SECTNO>
            <SUBJECT>Applicability.</SUBJECT>
            <P>(S-90) The program shall apply to solicitations issued by the Department of the Army Corps of Engineers buying activities for the procurement of dredging under SIC 1629 (Dredging and Surface Cleanup Activities), limited to Federal Procurement Data Systems (FPDS) codes Y216 and Z216. This includes both maintenance dredging and new start (new work) construction dredging. Dredging to be performed by Government forces utilizing the Federally owned fleet pursuant to 33 U.S.C. 622 is not subject to the program.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1070</SECTNO>
            <SUBJECT>Procedures.</SUBJECT>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1070-2</SECTNO>
            <SUBJECT>Emerging small business set-aside.</SUBJECT>
            <P>(a)(S-90) Solicitations for dredging shall be set-aside for exclusive competition among ESBs when the estimated award value is equal to or less than the emerging small business reserve amount (ESBRA) of $600,000. (Except that dredging acquisitions shall continue to be considered for placement under the 8(a) program (see FAR subpart 19.8) and for small disadvantaged business set-asides (see DFARS 219.502-72)). The ESBRA applies only to new awards. Modifications or follow-on awards to contracts having an initial award value in excess of the ESBRA are not subject to this requirement. The set-aside requirements in DFARS 219.1070-2 (a) and (b) for designated industry groups acquisitions valued at $25,000 or less shall be complied with for all dredging program set-asides.</P>
            <P>(S-90) The contracting office shall include the applicable SIC Code and dollar size standard in the synopsis of proposed procurement as published in the Commerce Business Daily (CBD), in the presolicitation notice (construction contract) SF 1417 when issued, and in the solicitation documents.</P>
            <P>(S-91) The contracting officer shall consider use of the following initiatives to increase participation by small businesses and emerging small businesses:</P>
            <P>(1) Specifying of contract requirements and contractual terms and conditions which are conducive to competition among small business and emerging small business concerns, consistent with the mission or program requirements of the Department of the Army, Corp of Engineers.</P>
            <P>(2) Encouraging joint ventures, teaming agreements, and similar arrangements consistent with the Small Business Act (15 U.S.C. 637(d)) for the purpose of including small business concerns in contracting opportunities. However, no such joint venture shall exceed the applicable size standard.</P>
            <P>(3) Making maximum use of subcontracting through plans negotiated and enforced pursuant to section 8(d) of the Small Business Act. Goals may be specified in solicitations stating minimum percentages of subcontracting.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1070-3</SECTNO>
            <SUBJECT>Identification and reporting.</SUBJECT>

            <P>(b) Reporting shall be done in accordance with DFARS 204.6 designated industry group requirements. Block <PRTPAGE P="179"/>B12A, DD Form 350, shall contain either the FPDS Code Y216 or Z216, as applicable, per 5119.1005 (S-90).</P>
          </SECTION>
          <SECTION>
            <SECTNO>5119.1071</SECTNO>
            <SUBJECT>Solicitation provisions and contract clauses.</SUBJECT>
            <P>(a) DFARS provision 252.219-7012 shall be inserted in all solicitations issued under the Small Business Dredging Program (SIC 1629, limited to FPDS Service Codes Y216/Z216).</P>
            <P>(b) DFARS clause 252.219-7013 shall be inserted in all solicitations and contracts set-aside for emerging small businesses in accordance with 5119.1070-2(a) (S-90).</P>
          </SECTION>
        </SUBPART>
      </PART>
      <PART>
        <EAR>Pt. 5125</EAR>
        <HD SOURCE="HED">PART 5125—FOREIGN ACQUISITION</HD>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C 301, 10 U.S.C. 2202, DoD Directive 5000.35, FAR 1.301 and DOD FAR Supplement 201.3.</P>
        </AUTH>
        <SECTION>
          <SECTNO>5125.74-9000</SECTNO>
          <SUBJECT>Contractors Accompanying the Force—Deployment of Contractor Personnel in Support of Military Operations</SUBJECT>
          <HD SOURCE="HD1">Scope of Subpart</HD>
          <P>(a) <E T="03">General.</E> This subpart applies whenever contractors may be required to accompany the force in support of military operations, as defined in Joint Publication 1-02, “DOD Dictionary of Military and Associated Terms.”</P>
          <P>(b) <E T="03">Coordination.</E> There are many operational details that will affect the scope of work in contracts requiring deployment of contractor personnel in support of military operations. The requirements activity, in conjunction with the contracting activity, must coordinate with the appropriate logistics organization to determine what level of support (<E T="03">e.g.,</E> billeting, messing, clothing and equipment, access to medical facilities, pre-deployment processing) will be available to contractors.</P>
          <P>(i) DFARS 225.802-70 (Contracts for performance outside the United States and Canada) prescribes special procedures applicable to contracts requiring the performance of work in a foreign country by U.S. personnel or a third country contractor, or that will require logistics support for contractor employees, and the contracting activity is not under the command jurisdiction of a unified or specified command for the country involved. This provision generally requires the contracting activity to undertake certain coordination with the cognizant contract administration office for that country.</P>
          <P>(ii) In situations where no contract administration office has been designated, the contracting officer shall ensure, prior to contract award, that the responsible combatant command concurs with any contract provision that promises logistical support to U.S. or foreign national contractor personnel. This requirement may be satisfied through a memorandum executed by the requiring activity that documents combatant command approval of any logistical support specified in the main body of the contract or its statement of work.</P>
          <P>(c) <E T="03">Legal status of contractor personnel.</E> The Status of Forces Agreements applicable to the Area of Operations (AO), as well as the Geneva Conventions and other international laws govern the legal status of contractor personnel. Contractor personnel's legal status will vary depending on the location and circumstances surrounding an incident.</P>

          <P>(d) Requirements offices and contracting officers should use the Army Contractors Accompanying the Force Guidebook for more detailed guidance, including sample contract language, and a listing of Army and DoD regulations and other resources. Contracting Officers may tailor this language as appropriate, but using the Guidebook will both answer many common questions and foster uniform handling of common issues. The Guidebook may be found on the Deputy Assistant Secretary of the Army (Procurement &amp; Production) Web site at <E T="03">http://dasapp.saalt.army.mil/.</E>
          </P>
          <P>(e) <E T="03">Solicitation provision and contract clause.</E> The clause at § 5152.225-74-9000 shall be inserted in all solicitations and contracts that may require deployment of contractor personnel in support of military operations. It may be tailored to fit the specific circumstances of the procurement.</P>
          <CITA>[68 FR 66739, Nov. 28, 2003]</CITA>
        </SECTION>
      </PART>
      <PART>
        <PRTPAGE P="180"/>
        <EAR>Pt. 5145</EAR>
        <HD SOURCE="HED">PART 5145—GOVERNMENT PROPERTY</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>5145.301</SECTNO>
          <SUBJECT>Definitions.</SUBJECT>
          <SECTNO>5145.302-3</SECTNO>
          <SUBJECT>Other contracts.</SUBJECT>
          <SECTNO>5145.303</SECTNO>
          <SUBJECT>Providing material.</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, DoD Directive 5000.35, and DoD FAR Supplement 201.301.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>54 FR 39538, Sept. 27, 1989, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>5145.301</SECTNO>
          <SUBJECT>Definitions.</SUBJECT>
          <P>
            <E T="03">Other Government Property</E> means all property, other than Special Use Property as defined below, which may be offered to a contractor for use in performance of installation support services contracts.</P>
          <P>
            <E T="03">Special Use Property</E> means property that is (a) “agency peculiar property”, (b) necessary for mobilization requirements; or (c) property for which it has been determined that title should remain with the Government.</P>
        </SECTION>
        <SECTION>
          <SECTNO>5145.302-3</SECTNO>
          <SUBJECT>Other contracts.</SUBJECT>
          <P>(S-90)(1) When it is determined that contractor use of existing Government facilities, other than special use property, in the performance of installation support services contracts, is in the best interest of the Government, the Government facilities will be offered to a contractor for use in the performance of the Government contract. Facilities provided to a contractor under this authority will not be replaced by the Government when they can no longer be used by the contractor. Nevertheless, it will be the contractor's responsibility to continue performance in accordance with the terms of the contract.</P>
          <P>(2)(i) New facilities shall not be purchased in order to provide them to contractors. Prior to offering existing facilities under this authority, a contracting officer shall make a written determination, based on the detailed justification provided by the approving officials and program/project manager, that such use is in the best interest of the Government. The written determination shall be kept in the contract file.</P>
          <P>(ii) Existing facilities offered for contractor use will be offered to all bidders/offerors for their consideration in the preparation of their bids and offers. Bidders/offerors may choose to use any or all of the facilities offered.</P>
          <P>(3) When it is determined that contractor use of special use property in the performance of installation support services contracts is in the best interest of the Government, such property will be provided. It will be accounted for and managed under the appropriate Government property clause. For example, FAR 52.245-2 for fixed-price contracts or FAR 52.245-5 for cost-reimbursement contracts and any appropriate provision from FAR 52.245-11, Facilities Use Clause.</P>
          <P>(S-91) Required Government property clauses for other than facilities contracts.</P>
          <P>(1) In addition to the clauses at FAR 52.245-2 and 52.245-19, the Contracting Officer shall insert the clause at 5152.245-9000, Government Property for Installation Support Services (Fixed-Price Contracts), in solicitations and contracts when a fixed-price contract is contemplated and Government property will be provided without being replaced by the Government.</P>
          <P>(2) The Contracting Officer shall insert the clause at 5152.245-9001, Government Property for Installation Support Services (Cost-Reimbursement Contracts), in solicitations and contracts when a cost-reimbursement type contract is contemplated and the Government property will be provided without being replaced by the Government.</P>
        </SECTION>
        <SECTION>
          <SECTNO>5145.303</SECTNO>
          <SUBJECT>Providing material.</SUBJECT>

          <P>(S-90) Existing Government material on hand or being used prior to conversion to contractor performance of commercial activities may be offered to contractors if it is determined to be in the best interest of the Government per FAR 45.303-1. If the material is to be provided without replacement by the Government, the solicitation must state that it will not be replaced. If it is determined that the Government will be responsible for replacement of any of the material, those items must be listed on a separate Technical Exhibit and the solicitation state that replacement will be by the Government. These items will be governed by the appropriate Government Property clause <PRTPAGE P="181"/>in the contract in accordance with FAR 52.245-2 for fixed-price and FAR 52.245-5 for cost-reimbursement type contracts.</P>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 5152</EAR>
        <HD SOURCE="HED">PART 5152—SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>5152.208-9001</SECTNO>
          <SUBJECT>Industrial preparedness planning.</SUBJECT>
          <SECTNO>5152.225-74-9000</SECTNO>
          <SUBJECT>Contractors Accompanying the Force.</SUBJECT>
          <SECTNO>5152.245-9000</SECTNO>
          <SUBJECT>Government property for installation support services (fixed-price contracts).</SUBJECT>
          <SECTNO>5152.245-9001</SECTNO>
          <SUBJECT>Government property for installation support services (cost-reimbursement contracts).</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35, and DOD FAR Supplement 201.301.</P>
        </AUTH>
        <SECTION>
          <SECTNO>5152.208-9001</SECTNO>
          <SUBJECT>Industrial preparedness planning.</SUBJECT>
          <P>As prescribed at 5108-070(g)(4) insert the following clause in full text in contracts where the contractor is designated a Limited Fee Planned Producer.</P>
          <EXTRACT>
            <HD SOURCE="HD1">Industrial Preparedness Planning (XXX 1989) (DEV)</HD>
            <P>(a) The Government designates the contractor a Limited Fee Planned Producer (LFPP) for the item(s) listed in paragraph (e) of this clause. As an LFPP for the listed items, the contractor will be solicited for all acquisitions over $25,000 which are for the item(s), excluding those for which competition is restricted to the Restricted Specified Base pursuant to an approved Justification and Approval. The Government reserves the right to obtain the item(s) listed from sources other than the commercial marketplace, i.e. by assigning workload to a government-owned facility.</P>
            <P>(b) The Contractor agrees to:</P>
            <P>(i) Update the Production Capacity Survey DD Form 1519 TEST for each item biennially;</P>
            <P>(ii) Accomplish subcontractor planning as required in paragraph (f) of this clause;</P>
            <P>(iii) Permit Government personnel access to records, manufacturing process data, plants and facilities in order to verify data on the Production Capacity Survey DD Form 1519 TEST.</P>
            <P>(iv) Maintain the surge/mobilization capacity set forth in the Production Planning Schedules during active production of the item and for a period of (negotiated number) years after physical completion of this production contract.</P>

            <P>(c) The Contractor is aware of the Government's dependence upon the Production Planning Schedules as a basis to take appropriate measures to ensure the adequacy of the United States Industrial Base. The Contractor also recognizes the Government's intention to convert Production Planning Schedule to contracts on a selective basis, as may be required to minimize materiel shortages during mobilization or to meet contingencies short of a declared national emergency. The Contractor agrees to accept contracts for the item(s) in accordance with the Production Planning Schedules. In the event mobilization or contingencies short of a declared national emergency occur after active production has ceased, and the allocated capacity is in use for the production of other item(s), the Contractor agrees to immediately discontinue production of such other item(s) if necessary to meet production schedules for the planned item(s). The Contractor further recognizes that it is the Government's intention to require that planned subcontractor support will be similarly converted to production subcontracts. Production delivery obligations under this clause are governed by Title I of the Defense Production Act of 1950, as amended (50 U.S.C. app. 2061, <E T="03">et seq</E>.) (Defense Production Act) and as applicable are within the purview of the Defense Priorities and Allocation System.</P>
            <P>(d) For the listed item(s), the Contractor certifies by signing this contract that the plant capacity required to support the mobilization quantity listed on the Production Capacity Survey DD Form 1519 TEST will be dedicated exclusively for the production of that item at mobilization. Furthermore, the Contractor certifies that this capacity is not shared by any other mobilization production requirements.</P>
            <P>(e) This clause covers the item(s) listed below:</P>
            <GPOTABLE CDEF="s50,r50" COLS="2" OPTS="L2">
              <BOXHD>
                <CHED H="1">Item schedule No.</CHED>
                <CHED H="1">Item nomenclature (sample)</CHED>
              </BOXHD>
              <ROW>
                <ENT I="01">M11111</ENT>
                <ENT>Fuze, Rocket MK987.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">M22222</ENT>
                <ENT>Machine Gun, MK35.</ENT>
              </ROW>
            </GPOTABLE>

            <P>(f) Subcontractors, suppliers and vendors provide many of the components of military end items. The lack of critical components could be one of the major limitations of the United States' ability to support its Armed Forces warfighting capabilities. Therefore, the Government designated critical components and/or subassemblies in Block #27 of the attached Production Capacity Survey (DD Form 1519 TEST) are those for which the Contractor will conduct vertical planning if not produced in-house. Additional critical components and/or subassemblies may be identified by the Contractor in block #21 of <PRTPAGE P="182"/>the attached Production Capacity Survey (DD Form 1519 TEST). Foreign producers (other than Canada) will not be considered as a source of supply for critical components. Mandatory vertical (subcontractor) planning will be accomplished by the ASPPO and the Contractor for all critical components identified on the Production Capacity Survey, (DD Form 1519 TEST), by using a sub-tier Production Capacity Survey (DD Form 1519 TEST). The Contractor agrees to coordinate completion of the DD Form 1519 TEST and finalize prime and subcontractor planning with the Armed Services Production Planning Officer (ASPPO) having cognizance over the prime contractor's facility.</P>
            <P>(g) After completion of active production of the item(s), the Government will annually, or as changes occur but not more than annually, furnish the Contractor updated technical data for the item. The Contractor agrees to review the technical data and to report to the Government within 60 days of receipt of the data, the impact of technical changes, if any, to the current Production Planning Schedules at no additional cost to the Government.</P>
            <P>(h) Retention by the Contractor of the surge/mobilization capacity set forth in the Production Planning Schedules after completion of active production of the planned item(s) will not necessarily require that the Contractor maintain such capacity in idle status. Contractor utilization of capacity allocated for planned production for production of other non-planned items is consistent with the intent of any postproduction provisions of this contract, provided no degradation of surge/mobility capacity occurs as a result, and provided that the approval of the Contracting Officer with property cognizance is obtained for the use of any Government-owned property.</P>
          </EXTRACT>
          <CITA>[54 FR 38683, Sept. 20, 1989]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>5152.225-74-9000</SECTNO>
          <SUBJECT>Contractors Accompanying the Force.</SUBJECT>
          <P>As prescribed at subpart 5125.74-9000(e) insert the following clause:</P>
          <EXTRACT>
            <HD SOURCE="HD1">Contractors Accompanying the Force (NOV. 2003)</HD>
            <P>(a) <E T="03">General.</E> (1) Performance of this contract may require deployment of Contractor Personnel in support of military operations. The Contractor acknowledges that such operations are inherently dangerous and accepts the risks associated with contract performance in this environment.</P>

            <P>(2) For purposes of this clause, the term “Contractor Personnel” refers to the Contractor's officers and employees. Unless otherwise specified (<E T="03">e.g.,</E> subparagraph (b) of this clause), this term does not include personnel who permanently reside in the country where contract performance will take place.</P>

            <P>(3) The Contractor shall ensure that Contractor Personnel working in an area of operations (AO, as defined in the Joint Publication 1-02, “DOD Dictionary of Military and Associated Terms”) are familiar and comply with applicable: (i) Military Service and Department of Defense regulations, directives, instructions, general orders, policies, and procedures, in particular Army Regulation 715-9 and Field Manual 3-100.21; (ii) U.S., host country, local, and international laws and regulations; and (iii) treaties and international agreements (<E T="03">e.g.,</E> Status of Forces Agreements, Host Nation Support Agreements, and Defense Technical Agreements) relating to safety, health, force protection, and operations under this contract.</P>
            <P>(4) The Contractor shall ensure that this clause is included in all subcontracts.</P>
            <P>(b) <E T="03">Compliance with Combatant Command Orders.</E> The Contractor shall ensure that Contractor Personnel, regardless of residency status, working in the AO comply with all orders, directives, and instructions of the combatant command relating to non-interference in military operations, force protection, health, and safety. The Combatant Commander or his subordinate commanders, in conjunction with the Contracting Officer or the Contracting Officer's Representative, may direct the Contractor, at the Contractor's own expense, to replace and, where applicable, repatriate any Contractor personnel who fail to comply with this provision. Such action may be taken at the Government's discretion without prejudice to its rights under any other provision of this contract, including the Termination for Default clause.</P>
            <P>(c) <E T="03">Contractor Personnel Administration.</E> (1) In order to maintain accountability of all deployed personnel in the AO, the Contractor shall follow instructions issued by the Army Materiel Command's Logistics Support Element (AMC LSE) or other Contracting Officer's designated representative to provide, and keep current, requested data on Contractor Personnel for entry into military personnel database systems.</P>
            <P>(2) The Contractor shall coordinate with the AMC LSE or other Contracting Officer's designated representative for logistics support, as follows: (i) Upon initial entry into the AO; (ii) upon initiation of contract performance; (iii) upon relocation of contract operations within the AO; and (iv) upon exiting the AO.</P>
            <P>(3) Before deployment, the Contractor shall ensure that:</P>

            <P>(i) All Contractor Personnel complete two DD Forms 93, Record of Emergency Data Card. One copy of the completed form shall be returned to the Government official specified by the Contracting Officer's designated <PRTPAGE P="183"/>representative; the other shall be hand-carried by the individual employee to the AO.</P>
            <P>(ii) All required security and background checks are completed.</P>
            <P>(iii) All medical screening and requirements are met.</P>
            <P>(4) The Contractor shall ensure that Contractor Personnel have completed all pre-deployment requirements specified by the Contracting Officer's designated representative (including processing through the designated Continental United States (CONUS) Replacement Center unless another deployment processing method is specifically authorized), and the Contractor shall notify the Contracting Officer's designated representative that these actions have been accomplished.</P>
            <P>(5) The Contractor shall have a plan for timely replacement of employees who are no longer available for deployment for any reason, including mobilization as members of the Reserve, injury, or death.</P>
            <P>(d) <E T="03">Clothing and Equipment Issue.</E> (1) To help distinguish them from combatants, Contractor Personnel shall not wear military clothing unless specifically authorized by a written Department of Army waiver. Contractor Personnel may wear specific items of clothing and equipment required for safety and security such as ballistic or NBC (Nuclear, Biological, Chemical) protective clothing. The CONUS Replacement Center or the combatant command may provide to the Contractor Personnel military unique Organizational Clothing and Individual Equipment (OCIE) to ensure security and safety.</P>
            <P>(2) All issued OCIE shall be considered Government Furnished Property, and will be treated in accordance with Government Furnished Property clauses included elsewhere in this contract.</P>
            <P>(e) <E T="03">Weapons and Training.</E> (1) Contractor Personnel may not possess privately owned firearms in the AO. The combatant command may issue weapons and ammunition to Contractor Personnel, with the employee's company's consent as well as the individual employees' consent, and may require weapons and other pre-deployment training.</P>
            <P>(2) The Contractor shall ensure that Contractor Personnel follow all instructions by the combatant command, as well as applicable Military Service and DoD regulations, regarding possession, use, safety, and accountability of weapons and ammunition.</P>
            <P>(3) All issued weapons, ammunition, and accessories (<E T="03">e.g.,</E> holsters) shall be considered Government Furnished Property. Upon redeployment or notification by the combatant command, the Contractor shall ensure that all Government issued weapons and unused ammunition are returned to the point of issue using a method that complies with Military Service regulations for issue and turn-in of firearms.</P>
            <P>(f) <E T="03">Vehicle and Equipment Operation.</E> (1) The Contractor shall ensure that Contractor Personnel possess the required licenses to operate all vehicles or equipment necessary to perform the contract in the AO.</P>
            <P>(2) Contractor-owned or leased motor vehicles or equipment shall meet all requirements established by the combatant command and shall be maintained in a safe operating condition.</P>
            <P>(g) <E T="03">Passports, Visas and Customs.</E> The Contractor is responsible for obtaining all passports, visas, and other documents necessary for Contractor Personnel to enter and exit any AO.</P>
            <P>(h) <E T="03">Purchasing Limited Resources.</E> When the Combatant Command establishes a Commander-in-Chief Logistics Procurement Support Board (CLPSB), Joint Acquisition Review Board, or similar purchase review committee, the contractor will be required to coordinate local purchases of goods and services designated as limited, in accordance with instructions provided by the Administrative Contracting Officer or the Contracting Officer's designated representative.</P>
          </EXTRACT>
          <HD SOURCE="HD3">(End of clause)</HD>
          <CITA>[68 FR 66740, Nov. 28, 2003]</CITA>
          <SECAUTH>Authority:5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35, FAR 1.301 and DOD FAR Supplement 201.3.</SECAUTH>
        </SECTION>
        <SECTION>
          <SECTNO>5152.245-9000</SECTNO>
          <SUBJECT>Government property for installation support services (fixed-price contracts).</SUBJECT>
          <P>As prescribed in 5145.302-3(91), insert the following:</P>
          <EXTRACT>
            <HD SOURCE="HD1">Government Property for Installation Support Services (Fixed-Price Contracts) (OCT 1989) (DEV)</HD>

            <P>The Government property listed at Technical Exhibit __ is provided “as is” to the contractor for use in the performance of this contract. This property may be used by the Contractor until the Contractor no longer desires to use it for contract performance or the Contracting Officer withdraws it from use under this contract in accordance with FAR 52.245-2(b). The Contractor will comply with instructions from the Contracting Officer relative to disposition of the property. No equitable adjustment or other claim will be payable to the Contractor based upon the condition or availability of the property, except as provided in FAR 52.245-19. The Contractor remains responsible for performance of the required services under this contract regardless of the length of time which the property provided hereunder remains operational. Property provided by or obtained by the Contractor under this contract remains Contractor property. Except as provided <PRTPAGE P="184"/>herein, the property listed at Technical Exhibit __ will be governed by FAR 52.245-2, Government Property (Fixed-Price Contracts), and FAR 52.245-19, Government Property Furnished “as is”.</P>
          </EXTRACT>
          <HD SOURCE="HD3">(End of clause)</HD>
          <CITA>[54 FR 39539, Sept. 27, 1989]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>5152.245-9001</SECTNO>
          <SUBJECT>Government property for installation support services (cost-reimbursement contracts).</SUBJECT>
          <P>As prescribed in 5145.302-3(S-91), insert the following clause:</P>
          <EXTRACT>
            <HD SOURCE="HD1">Government Property for Installation Support Services (Cost-Reimbursement Contracts) (OCT 1989) (DEV)</HD>
            <P>(a) <E T="03">Government-furnished property.</E> The Government property listed at Technical Exhibit __ is provided to the contractor for use in the performance of this contract for installation support services. This property will be used, maintained and administered by the Contractor until it is no longer required by the Contractor. Cessation of such use of the property, and subsequent turn-in, must be approved by the Contracting Officer. The Contracting Officer will provide the Contractor with appropriate disposition instructions. The Contractor will continue to perform following such disposition with Contractor-owned property. No equitable adjustment or claim will be payable resulting from turn-in or unsuitability for intended use of this property. No change to this contract is indicated by approval of turn-in of the property. No delay claim or performance delay will be allowed based on unsuitability of property or turn-in. The Contractor's proposal includes an estimate of the costs for providing its own property for the period following turn-in of Government property.</P>
            <P>(b) <E T="03">Changes in Government-furnished property.</E> The Contracting Officer may, by written notice, decrease the Government-furnished property or substitute other property for the property being used by the contractor. In the case of this withdrawal of property by the Contracting Officer, an equitable adjustment may be appropriate. Nevertheless, even in the case of such withdrawal, the Contractor is obligated to continue performance under this contract.</P>
            <P>(c) <E T="03">Title in Government Property.</E> (1) Title to the Property shall remain in the Government. Title to parts replaced by the Contractor in carrying out its normal maintenance obligations under paragraph (g) of this clause shall pass to and vest in the Government upon completion of their installation in the property.</P>
            <P>(2) Title to the property shall not be affected by their incorporation into or attachment to any property not owned by the Government, nor shall any item of the property become a fixture or lose its identity as personal property by being attached to any real property. The Contractor shall keep the property free and clear of all liens and encumbrances and, except as otherwise authorized by this contract or by the Contracting Officer, shall not remove or otherwise part with possession of, or permit the use by others of any of the property.</P>
            <P>(3) The Contractor may, with the written approval of the Contracting Officer, install, arrange, or rearrange, on Government furnished premises, readily removable machinery, equipment and other items belonging to the Contractor. Title to any such item shall remain in the Contractor even though it may be attached to real property owned by the Government, unless the Contracting Officer determines that it is so permanently attached that removal would cause substantial injury to Government property.</P>
            <P>(4) The Contractor shall not construct or install, at its own expense, any fixed improvement or structural alterations in Government buildings or other real property without advance written approval of the Contracting Officer. Fixed improvement or structural alterations as used herein, means any alteration or improvement in the nature of the building or other real property that, after completion, cannot be removed without substantial loss of value or damage to the premises. The term does not include foundations for production equipment.</P>
            <P>(d) <E T="03">Location of the property.</E> The Contractor may use the property only at the installation location(s) specified in the schedule. Written approval of the Contracting Officer is required prior to moving the property to any other location. In granting this approval, the Contracting Officer may prescribe such terms and conditions as may be deemed necessary for protecting the Government's interest in the property involved. Those terms and conditions shall take precedence over any conflicting provisions of this contract.</P>
            <P>(e) <E T="03">Notice of use of the property.</E> The Contractor shall notify the Contracting Officer in writing whenever any item of the property is no longer needed or usable for performing under this contract. The contracting officer will then make a decision as to disposition if agreement is reached with the Contractor that the property is no longer usable or suitable for its intended use.</P>
            <P>(f) <E T="03">Property Control.</E> The Contractor shall maintain property control procedures and records, and a system of identification of the property, in accordance with the provisions of FAR subpart 45.5 in effect on the date of this contract.</P>
            <P>(g) <E T="03">Maintenance.</E> (1) Except as otherwise provided in the Schedule, the Contractor shall protect, preserve, maintain (including normal parts replacement), and repair the <PRTPAGE P="185"/>property in accordance with sound industrial practice.</P>
            <P>(2) No later than 45 days after the execution of this contract, the Contractor shall submit to the Contracting Officer a written proposed maintenance program, including a maintenance records system, in sufficient detail to show the adequacy of the proposed program. If the Contracting Officer agrees to the proposed program, it shall become the normal maintenance obligation of the Contractor. The Contractor's performance according to the approved program shall satisfy the Contractor's obligations under paragraphs (g) (1) and (5) of this clause.</P>
            <P>(3) The Contracting Officer may at any time direct the Contractor in writing to reduce the work required by the normal maintenance program. If such order reduces the cost of performing the maintenance, an appropriate equitable adjustment may be made.</P>
            <P>(4) The Contractor shall perform any maintenance work directed by the Contracting Officer in writing. Work in excess of the maintenance required under paragraphs (g)(1) through (g)(3) of this clause shall be at Government expense. The Contractor shall notify the Contracting Officer in writing when sound industrial practice requires maintenance in excess of the normal maintenance program. The Contracting Officer shall then make a determination whether to repair the facilities or whether the Contractor should provide contractor property while continuing to perform.</P>
            <P>(5) The Contractor shall keep records of all work done on the property and shall give the Government reasonable opportunity to inspect such records. When property is disposed of under this contract, the Contractor shall deliver the related records to the Government, or, if directed by the Contracting Officer, to third persons.</P>
            <P>(6) The Contractor's obligation under this clause for each item of property shall continue until the item is removed, abandoned, or disposed of in accordance with Contracting Officer's instructions.</P>
            <P>(h) <E T="03">Access.</E> The Government and any persons designated by it shall, at all reasonable times have access to the premises where any of the property is located.</P>
            <P>(i) <E T="03">Indemnification of the Government.</E> The Contractor shall indemnify the Government and hold it harmless against claims for injury to persons or damage to property of the Contractor or others arising from the Contractor's possession or use of the property under this contract. Nevertheless, this provision applies only to injury arising out of use of property provided under this clause.</P>
            <P>(j) <E T="03">Representation and warranties.</E> (1) The Government makes no warranty, express or implied, regarding the condition or fitness for use of any property. To the extent practical, the Contractor shall be allowed to inspect all the property to be furnished by the Government.</P>
            <P>(2) If, however, the Contractor receives property in a condition not suitable for the intended use, the Contractor shall, within 30 days after receipt and installation thereof, so notify the Contracting Officer, detailing the facts, and, as directed by the Contracting Officer, and at Government expense, either return such item or otherwise dispose of it or effect repairs or modifications. If the determination is made by the Contracting Officer to require turn-in rather than repair of the property, then the Contractor will continue to perform the contract by using its own property, for which reimbursement will be made in accordance with applicable cost principles.</P>
            <P>(k) <E T="03">Limited risk of loss.</E> (1) The Contractor shall not be liable for loss or destruction of, or damage to, the Government property provided under this contract or for expenses incidental to such loss, destruction, or damage, except as provided in paragraphs (k) (2) and (3) of this clause.</P>
            <P>(2) The Contractor shall be responsible for loss or destruction of, or damage to, the Government property provided under this contract (including expenses incidental to such loss, destruction, or damage)—</P>
            <P>(i) That results from a risk expressly required to be insured under this contract, but only to the extent of the insurance required to be purchased and maintained or to the extent of insurance actually purchased and maintained, whichever is greater;</P>
            <P>(ii) That results from a risk that is in fact covered by insurance or for which the Contractor is otherwise reimbursed, but only to the extent of such insurance or reimbursement:</P>
            <P>(iii) For which the Contractor is otherwise responsible under the express terms of this contract;</P>
            <P>(iv) That results from willful misconduct or lack of good faith on the part of the Contractor's managerial personnel; or</P>
            <P>(v) That results from a failure on the part of the Contractor, due to willful misconduct or lack of good faith on the part of the Contractor's managerial personnel, to establish and administer a program or system for the control, use, protection, preservation, maintenance, and repair of Government property as required by paragraph (f) of this clause.</P>

            <P>(3)(i) If the Contractor fails to act as provided by paragraph (k)(2)(v) of this clause, after being notified (by certified mail addressed to one of the Contractor's managerial personnel) of the Government's disapproval, withdrawal of approval, or nonacceptance of the system or program, it shall be conclusively presumed that such failure was due to willful misconduct or lack of good faith on the part of the Contractor's managerial personnel.<PRTPAGE P="186"/>
            </P>
            <P>(ii) In such event, any loss or destruction of, or damage to, the Government property shall be presumed to have resulted from such failure unless the Contractor can establish by clear and convincing evidence that such loss, destruction, or damage—</P>
            <P>(A) Did not result from the Contractor's failure to maintain an approved program or system; or</P>
            <P>(B) Occurred while an approved program or system was maintained by the Contractor.</P>
            <P>(4) If the Contractor transfers Government property to the possession and control of a subcontractor, the transfer shall not affect the liability of the Contractor for loss or destruction of, or damage to, the property as set forth above. However, the Contractor shall require the subcontractor to assume the risk of, and be responsible for, any loss or destruction of, or damage to, the property while in the subcontractor's possession or control, except to the extent that the subcontract, with the advance approval of the Contracting Officer, relieves the subcontractor from such liability. In the absence of such approval, the subcontract shall contain appropriate provisions requiring the return of all Government property in as good condition as when received, except for reasonable wear and tear or for its use in accordance with the provisions of the prime contract.</P>
            <P>(5) Upon loss or destruction of, or damage to, Government property provided under this contract, the Contractor shall so notify the Contracting Officer and shall communicate with the loss and salvage organization, if any, designated by the Contracting Officer. With the assistance of any such organization, the Contractor shall take all reasonable action to protect the Government property from further damage, separate the damaged and undamaged Government property, put all the affected Government property in the best possible order, and furnish to the Contracting Officer a statement of—</P>
            <P>(i) The lost, destroyed, or damaged Government property;</P>
            <P>(ii) The time and origin of the loss, destruction, or damage;</P>
            <P>(iii) All known interests in commingled property of which the Government property is a part; and</P>
            <P>(iv) The insurance, if any, covering any part of or interest in such commingled property.</P>
            <P>(6) The Contractor shall repair, renovate, and take such other action with respect to damaged Government property as the Contracting Officer directs. If the Government property is destroyed or damaged beyond practical repair, or is damaged and so commingled or combined with property of others (including the Contractor's) that separation is impractical, the Contractor may, with the approval of and subject to any conditions imposed by the Contracting Officer, sell such property for the account of the Government. Such sales may be made in order to minimize the loss to the Government, to permit the resumption of business, or to accomplish a similar purpose. The Contractor shall be entitled to an equitable adjustment in the contract price for the expenditures made in performing the obligations under this subparagraph (k)(6). However, the Government may directly reimburse the loss and salvage organization for any of their charges. The Contracting Officer shall give due regard to the Contractor's liability under this paragraph (k) when making any such equitable adjustment.</P>
            <P>(7) The Contractor shall not be reimbursed for, and shall not include as an item of overhead, the cost of insurance or of any reserve covering risk of loss or destruction of, or damage to, Government property, except to the extent that the Government may have expressly required the Contractor to carry such insurance under another provision of this contract.</P>
            <P>(8) In the event the Contractor is reimbursed or otherwise compensated for any loss or destruction of, or damage to, Government property, the Contractor shall use the proceeds to repair, renovate, or replace the lost, destroyed, or damaged Government property or shall otherwise credit the proceeds to, or equitably reimburse, the Government, as directed by the Contracting Officer.</P>
            <P>(9) The Contractor shall do nothing to prejudice the Government's rights to recover against third parties for any loss or destruction of, or damage to, Government property. Upon the request of the Contracting Officer, the Contractor shall, at the Government's expense, furnish to the Government all reasonable assistance and cooperation (including the prosecution of suit and the execution of instruments of assignment in favor of the Government) in obtaining recovery. In addition, where a subcontractor has not been relieved from liability for any loss or destruction of, or damage to, Government property, the Contractor shall enforce for the benefit of the Government the liability of the subcontractor for such loss, destruction, or damage.</P>
            <P>(1) <E T="03">Disposition of the facilities.</E> (1) The provisions of this paragraph shall apply to facilities whose use has been terminated by either the Contracting Officer or the Contractor because the property is no longer suitable for intended use, no longer desired, or is withdrawn from use by the Government.</P>
            <P>(2) The Contractor shall dispose of the property provided hereunder in accordance with guidance provided by the Contracting Officer.</P>
            <P>(3) The Contracting Officer shall give disposition instructions within 60 days of agreement that the property should be returned to the Government.</P>

            <P>(4) The Government may remove or otherwise dispose of any facilities for which the <PRTPAGE P="187"/>Contractor's authority to use has been terminated.</P>
            <P>(5) When Government property is returned to the Government, upon termination of the contract relationship between Government and Contractor or when Government furnished property is replaced by Contractor property, the Contracting Officer may direct repair of Government property necessitated by the change from Government to Contractor property such as removal of fixtures. When Contractor property is removed from Government property at the end of contract performance, the Government property will be restored to its condition prior to installation of Contractor property in accordance with Contracting officer direction.</P>
          </EXTRACT>
          <HD SOURCE="HD3">(End of clause)</HD>
          <CITA>[54 FR 39539, Sept. 27, 1989]</CITA>
        </SECTION>
      </PART>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 52 (10-1-05 Edition)</LRH>
      <RRH>Department of the Navy</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="189"/>
          <HD SOURCE="HED">CHAPTER 52—DEPARTMENT OF THE NAVY ACQUISITION REGULATIONS</HD>
          <P>(Parts 5200 to 5299)</P>
        </TOCHD>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>5215</PT>
          <SUBJECT>Contracting by negotiation</SUBJECT>
          <PG>191</PG>
          <PT>5231</PT>
          <SUBJECT>Contract cost principles and procedures</SUBJECT>
          <PG>193</PG>
          <PT>5242</PT>
          <SUBJECT>Contract administration</SUBJECT>
          <PG>194</PG>
          <PT>5243</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>5252</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>195</PG>
        </CHAPTI>
      </TOC>
      <PART>
        <PRTPAGE P="191"/>
        <EAR>Pt. 5215</EAR>
        <HD SOURCE="HED">PART 5215—CONTRACTING BY NEGOTIATION</HD>
        <CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5215.4—Solicitation and Receipt of Proposals and Quotations</HD>
            <SECHD>Sec.</SECHD>
            <SECTNO>5215.402</SECTNO>
            <SUBJECT>General.</SUBJECT>
            <SECTNO>5215.407</SECTNO>
            <SUBJECT>Solicitation provisions.</SUBJECT>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5215.6—Source Selection</HD>
            <SECTNO>5215.605</SECTNO>
            <SUBJECT>Evaluation factors.</SUBJECT>
            <SECTNO>5215.608</SECTNO>
            <SUBJECT>Proposal evaluation.</SUBJECT>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5215.8—Price Negotiation</HD>
            <SECTNO>5215.804-3</SECTNO>
            <SUBJECT>Exemptions from or waiver of submission of certified cost or pricing data.</SUBJECT>
          </SUBPART>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>53 FR 16280, May 6, 1988, unless otherwise noted.</P>
        </SOURCE>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5215.4—Solicitation and Receipt of Proposals and Quotations</HD>
          <SECTION>
            <SECTNO>5215.402</SECTNO>
            <SUBJECT>General.</SUBJECT>
            <P>(a) Competition is the cornerstone of Navy acquisition policy. As such, the preferred and predominant method of pricing in the Navy is through the use of competition, without the need for cost or pricing data and cost analysis. The Navy has found that not only does competition generate more favorable prices, but significant time and effort can be saved by relying on the forces of competition to establish prices, as opposed to the use of detailed cost analysis. This approach is not only consistent with the Competition in Contracting Act (CICA), but it affords the opportunity for significant efficiencies and reduction of procurement leadtime as a result of minimizing the requirement for cost or pricing data and associated audit reports. As competition is increasingly relied upon and the need for cost or pricing data is reduced, there may be a corresponding requirement for performing a cost realism evaluation for many competitive procurements to guard against unrealistically low prices which can lead to quality deficiencies, late deliveries, performance shortfalls, and cost overruns. In performing cost realism evaluation, only the minimum selected data to perform the cost realism evaluation is to be obtained, as opposed to full cost or pricing data which would be required when it is necessary to perform cost-based negotiations, such as in the case of sole source negotiations.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5215.407</SECTNO>
            <SUBJECT>Solicitation provisions.</SUBJECT>
            <P>(S-90) During acquisition planning, an assessment shall be made as to the likelihood that adequate price competition will exist. If it is anticipated that an award will be based on adequate price competition, the solicitation shall include the provision at 5252.215-9000. If the procurement schedule is critical, this provision with its Alternate I shall be used so that there will be a minimum delay in the event that adequate price competition does not materialize and it is necessary to obtain cost or pricing data. Contracting officers must be judicious in the use of the Alternate I provision, as it may cause offerors to incur certain costs in preparing standby cost or pricing data in anticipation that it may be subsequently requested.</P>
          </SECTION>
        </SUBPART>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5215.6—Source Selection</HD>
          <SECTION>
            <SECTNO>5215.605</SECTNO>
            <SUBJECT>Evaluation factors.</SUBJECT>
            <P>(S-90)(1) When a cost realism evaluation will be performed, the source selection evaluation criteria shall include a notice that the proposed costs may be adjusted, for purposes of evaluation, based upon the results of the cost realism evaluation.</P>

            <P>(2) Technical criteria may include quality standards that are based on either a minimally acceptable approach or a cost/benefit approach. When the quality desired is that necessary to meet minimum needs, proposals should be evaluated for acceptability and award made to the lowest priced, technically acceptable offer. When the quality desired is the highest affordable or that representing the best value, proposals should be evaluated on a cost/benefit basis that would permit an award based on paying appropriate premiums for measured increments of quality. When a cost/benefit approach is used, cost must carry a weight of not less than 40% unless thoroughly justified.<PRTPAGE P="192"/>
            </P>
            <P>(3) Cost realism evaluation. (i) Cost realism evaluation involves a summary level review of the cost portion (excluding profit/fee) of the offerors' proposals to determine if the overall costs proposed are realistic for the work to be performed. Cost realism evaluation differs from the detailed cost analysis usually undertaken in a noncompetitive procurement to determine the reasonableness of the various cost elements and profit/fee to arrive at a fair and reasonable price. Data submitted only for cost realism evaluation generally will not be certified.</P>
            <P>(ii) The purpose of cost realism evaluation is to:</P>
            <P>(A) Verify the offeror's understanding of the requirements;</P>
            <P>(B) Assess the degree to which the cost/price proposal reflects the approaches and/or risk assessments made in the technical proposal as well as the risk that the offeror will provide the supplies or services for the offered prices/costs; and</P>
            <P>(C) Assess the degree to which the cost included in the cost/price proposal accurately represents the work effort included in the technical proposal.</P>
            <P>(iii) Some examples of data and information that may be obtained to perform cost realism evaluation are:</P>
            <P>(A) Manloading (quantity and mix of labor hours);</P>
            <P>(B) Engineering, labor and overhead rates; and</P>
            <P>(C) Make or buy plans.</P>
            <FP>A price analysis approach where there is adequate price history may also be a suitable and efficient means to evaluate cost realism. The amount of data required will be dependent upon the complexity of the procurement and the data already obtained by the contracting officer (e.g. information on recent Forward Pricing Rate Agreements (FPRAs)).</FP>
            <P>(iv) Cost realism evaluation generally will be performed as a part of the proposal evaluation process (see 5215.605) for all competitive solicitations where a cost reimbursement contract is contemplated. For competitive solicitations contemplating a fixed price, labor hour, or time and material type contract, a cost realism evaluation would be the exception and not the rule, although its use may be appropriate where the proposal evaluation process will encompass both a cost/price evaluation and a technical evaluation. Also, where the contracting officer suspects a “buy-in” (see FAR 3.501) or a misunderstanding of the requirements as a result of reviewing the initial offers, data and information should be obtained and a cost realism evaluation performed.</P>
            <P>(v) When cost realism data are required, the contracting officer shall not request a formal field pricing report but rather, shall request a review of only those specific areas of information necessary to allow the contracting officer to perform a cost realism evaluation. For example, the contracting officer may only need to know the current or FPRA labor and/or overhead rates. In these instances, the request for information from DCAA may be oral or written.</P>
          </SECTION>
          <SECTION>
            <SECTNO>5215.608</SECTNO>
            <SUBJECT>Proposal evaluation.</SUBJECT>
            <P>(a) When a cost realism evaluation will be performed in accordance with 5215.605(S-90), the resulting realistic cost estimate shall be used in the evaluation of cost.</P>
          </SECTION>
        </SUBPART>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5215.8—Price Negotiation</HD>
          <SECTION>
            <SECTNO>5215.804-3</SECTNO>
            <SUBJECT>Exemptions from or waiver of submission of certified cost or pricing data.</SUBJECT>
            <P>(a) <E T="03">General.</E> As explained in 5215.402, cost or pricing data would not normally be obtained because the predominant portion of Navy procurements are awarded on the basis of adequate price competition.</P>
            <P>(b)(1)(iii) Adequate price competition may also exist where price is a secondary factor in the evaluation of proposals, as long as price is a substantial factor. Price, as used herein, means cost plus any fee or profit applicable to the contract price. Thus, in competitive acquisitions where adequate price competition is contemplated, the contracting officer shall not require the submission of cost or pricing data whether certified or not, as defined in FAR 15.801, regardless of the type of contract.</P>

            <P>(b)(3) Examples of contract awards for which prices may be based on adequate price competition and/or to have <PRTPAGE P="193"/>been established by adequate price competition are:</P>
            <P>(i) Contracts for items for which there are a limited number of sources and the prices at which award will be made are within a reasonable amount of each other and compare favorably with independent Government estimates and with prior prices paid;</P>
            <P>(ii) Any contract, including cost-type contracts, when cost is a significant evaluation factor; and</P>
            <P>(iii) Contracts for which there are dual sources.</P>
          </SECTION>
        </SUBPART>
      </PART>
      <PART>
        <EAR>Pt. 5231</EAR>
        <HD SOURCE="HED">PART 5231—CONTRACT COST PRINCIPLES AND PROCEDURES</HD>
        <CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5231.2—Contracts with Commercial Organizations</HD>
            <SECHD>Sec.</SECHD>
            <SECTNO>5231.205</SECTNO>
            <SUBJECT>Selected costs.</SUBJECT>
            <SECTNO>5231.205-90</SECTNO>
            <SUBJECT>Shipbuilding capability preservation agreements.</SUBJECT>
          </SUBPART>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2501, 10 U.S.C. 7315, DoD Directive 5000.35.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>62 FR 66827, Dec. 22, 1997, unless otherwise noted.</P>
        </SOURCE>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5231.2—Contracts With Commercial Organizations</HD>
          <SECTION>
            <SECTNO>5231.205</SECTNO>
            <SUBJECT>Selected costs.</SUBJECT>
          </SECTION>
          <SECTION>
            <SECTNO>5231.205-90</SECTNO>
            <SUBJECT>Shipbuilding capability preservation agreements.</SUBJECT>
            <P>(a) <E T="03">Scope and authority.</E> Where it would facilitate the achievement of the policy objectives set forth in 10 U.S.C. 2501(b), the Navy may enter into a shipbuilding capability preservation agreement with a contractor. As authorized by section 1027 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85), such an agreement permits the contractor to claim certain indirect costs attributable to its private sector work as allowable costs on Navy shipbuilding contracts.</P>
            <P>(b) <E T="03">Definition. Incremental indirect cost,</E> as used in this subsection, means an additional indirect cost that results from performing private sector work described in a shipbuilding capability preservation agreement.</P>
            <P>(c) <E T="03">Purpose and guidelines.</E> The purpose of a shipbuilding capability preservation agreement is to broaden and strengthen the shipbuilding industrial base by providing an incentive for a shipbuilder to obtain new private sector work, thereby reducing the Navy's cost of doing business. The Navy will use the following guidelines to evaluate requests for shipbuilding capability preservation agreements:</P>
            <P>(1) The Assistant Secretary of the Navy for Research, Development and Acquisition must make a determination that an agreement would facilitate the achievement of the policy objectives set forth in 10 U.S.C. 2501(b). The primary consideration in making this determination is whether an agreement would promote future growth in the amount of private sector work that a shipbuilder is able to obtain.</P>
            <P>(2) An agreement generally will be considered only for a shipbuilder with little or no private sector work.</P>
            <P>(3) The agreement shall apply to prospective private sector work only, and shall not extend beyond 5 years.</P>
            <P>(4) The agreement must project an overall benefit to the Navy, including net savings. This would be achieved by demonstrating that private sector work will absorb costs that otherwise would be absorbed by the Navy.</P>
            <P>(d) <E T="03">Cost-reimbursement rules.</E> If the Navy enters into a shipbuilding capability preservation agreement with a contractor, the following cost-reimbursement rules apply:</P>
            <P>(1) The agreement shall require the contractor to allocate the following costs to private sector work:</P>
            <P>(i) The direct costs attributable to the private sector work;</P>
            <P>(ii) The incremental indirect costs attributable to the private sector work; and</P>
            <P>(iii) The non-incremental indirect costs to the extent that the revenue attributable to the private sector work exceeds the sum of the costs specified in paragraphs (d)(1)(i) and (d)(1)(ii) of this subsection.</P>

            <P>(2) The agreement shall require that the sum of the costs specified in paragraphs (d)(1)(ii) and (d)(1)(iii) of this subsection not exceed the amount of indirect costs that would have been allocated to the private sector work in accordance with the contractor's established accounting practices.<PRTPAGE P="194"/>
            </P>
            <P>(3) The Navy may agree to modify the amount calculated in accordance with paragraph (d)(1) of this subsection if it determines that a modification is appropriate to the particular situation. In so doing, the Navy may agree to the allocation of a smaller or larger portion of the amount calculated in accordance with paragraph (d)(1) of this subsection, to private sector work.</P>
            <P>(i) Any smaller amount shall not be less than the sum of the costs specified in paragraphs (d)(1)(i) and (d)(1)(ii) of this subsection.</P>
            <P>(ii) Any larger amount shall not exceed the sum of the costs specified in paragraph (d)(1)(i) of this subsection and the amount of indirect costs that would have been allocated to the private sector work in accordance with the contractor's established accounting practices.</P>
            <P>(iii) In determining whether such a modification is appropriate, the Navy will consider factors such as the impact of pre-existing firm-fixed-price Navy contracts on the amount of costs that would be reimbursed by the Navy, the impact of pre-existing private sector work on the cost benefit that would be received by the contractor, and the extent to which allocating a smaller or larger portion of costs to private sector work would provide a sufficient incentive for the contractor to obtain additional private sector work.</P>
            <P>(e) <E T="03">Procedure.</E> A contractor may submit a request for a shipbuilding capability preservation agreement, together with appropriate justification, through the Deputy Assistant Secretary of the Navy for Ships, to the Assistant Secretary of the Navy for Research, Development and Acquisition, who has approval or disapproval authority. The contractor should also provide an informational copy of any such request to the cognizant administrative contracting officer.</P>
          </SECTION>
        </SUBPART>
      </PART>
      <PART>
        <EAR>Pt. 5242</EAR>
        <HD SOURCE="HED">PART 5242—CONTRACT ADMINISTRATION</HD>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, DOD Directive 5000.35</P>
        </AUTH>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5242.90—Refunds Require-ments (Spares and Support Equipment)</HD>
          <SECTION>
            <SECTNO>5242.9000</SECTNO>
            <SUBJECT>Requests for refunds.</SUBJECT>
            <P>(a) <E T="03">Policy.</E> (1) This subpart establishes uniform policy and procedures on requesting refunds for spare parts or items of support equipment. This policy is not intended to diminish the responsibility of Navy contracting personnel to properly price spare parts and items of support equipment. Further, it is not intended to serve as a mechanism for the recovery of excess profits.</P>
            <P>(2) In accordance with the guidance set forth in paragraph (c) of this section, contracting activities shall request a refund whenever the contract price of any spare part or item of support equipment significantly exceeds the item's intrinsic value as defined in the clause at 5252.242-9000. Refunds shall be requested only for the difference between the intrinsic value of the item at the time an agreement on price was reached and the contract price. Refunds will not be requested to recoup the amount of cost decreases that occur over time due to productivity gains (beyond economic quantity considerations) or changes in market conditions.</P>
            <P>(b) <E T="03">Examples.</E> The following are examples of circumstances which may establish a basis for a refund request or pricing adjustment:</P>
            <P>(1) A technical or engineering analysis results in a determination that the intrinsic value is significantly lower than the historical price.</P>
            <P>(2) The price paid for an item bought competitively in similar quantity and circumstances (e.g., urgency, delivery terms) is significantly less than the former sole source price.</P>
            <P>(3) Prices paid to the manufacturer of an item indicate the amount previously charged by the prime contractor for the item significantly exceeded the intrinsic value of the prime contractor's efforts in providing the item.</P>
            <P>(c) <E T="03">Solicitation provisions.</E> The contracting officer shall insert the clause at 5252.242-9000 in solicitations, Basic Ordering Agreements, and contracts (as defined in FAR 2.101) which contain <PRTPAGE P="195"/>or may contain requirements for spare parts or items of support equipment, except those contracts awarded as a result of competitive small purchase procedures and orders under federal supply schedules. If added to existing contracts, the clause will not apply to items or components ordered by the Government prior to the date of incorporation of the clause into the contract. Heads of Contracting Activities (HCAs) are delegated, without power of redelegation, authority to establish monetary thresholds below which refunds will not be requested.</P>
            <CITA>[51 FR 46671, Dec. 24, 1986]</CITA>
          </SECTION>
        </SUBPART>
      </PART>
      <PART>
        <RESERVED>PART 5243 [RESERVED]</RESERVED>
      </PART>
      <PART>
        <EAR>Pt. 5252</EAR>
        <HD SOURCE="HED">PART 5252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
        <CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5252.2—Texts of Provisions and Clauses</HD>
            <SECHD>Sec.</SECHD>
            <SECTNO>5252.215-9000</SECTNO>
            <SUBJECT>Submission of cost or pricing data.</SUBJECT>
            <SECTNO>5252.242-9000</SECTNO>
            <SUBJECT>Refunds.</SUBJECT>
            <SECTNO>5252.243-9000—5252.243-9001</SECTNO>
            <SUBJECT>[Reserved]</SUBJECT>
          </SUBPART>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2405, DOD Directive 5000.35, and DFARS subparts 201.3 and 243.1.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>53 FR 16282, May 6, 1988, unless otherwise noted.</P>
        </SOURCE>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5252.2—Texts of Provisions and Clauses</HD>
          <SECTION>
            <SECTNO>5252.215-9000</SECTNO>
            <SUBJECT>Submission of cost or pricing data.</SUBJECT>
            <P>As prescribed at 5215.407, insert the following provision:</P>
            <EXTRACT>
              <HD SOURCE="HD1">Submission of Cost or Pricing Data (Nov 1987)</HD>
              <P>(a) It is expected that this contract will be awarded based upon a determination that there is adequate price competition; therefore, the offeror is not required to submit or certify cost or pricing data (SF 1411) with its proposal.</P>
              <P>(b) If, after receipt of the proposals, the contracting officer determines that adequate price competition does not exist in accordance with FAR 15.804-3, the offeror shall provide certified cost or pricing data as requested by the contracting officer.</P>
            </EXTRACT>
            <HD SOURCE="HD3">(End of clause)</HD>
            <P>
              <E T="03">Alternate I</E> (NOV 1987). As prescribed at 5215.407, substitute the following paragraph (b):
            </P>
            <EXTRACT>
              <P>(b) If, after receipt of the proposals, the contracting officer determines that adequate price competition does not exist, the offeror shall provide certified cost or pricing data as requested by the contracting officer. The offeror shall provide the requested data within <SU>1</SU>
                <FTREF/> calendar days from the date of the contracting officer's request.</P>
            </EXTRACT>
            <FTNT>
              <P>
                <SU>1</SU> To be completed by the contracting officer.</P>
            </FTNT>
            <HD SOURCE="HD3">(End of clause)</HD>
          </SECTION>
          <SECTION>
            <SECTNO>5252.242-9000</SECTNO>
            <SUBJECT>Refunds.</SUBJECT>
            <P>As prescribed in 5242.9000 insert the following clause:</P>
            <EXTRACT>
              <HD SOURCE="HD1">Refunds (Spares and Support Equipment) (Dec 1986)</HD>
              <P>(a) In the event that the price of a spare part or item of support equipment delivered under this contract significantly exceeds its intrinsic value, the contractor agrees to refund the difference. Refunds will only be made for the difference between the intrinsic value of the item at the time an agreement on price was reached and the contract price. Refunds will not be made to recoup the amount of cost decreases that occur over time due to productivity gains (beyond economic purchase quantity considerations) or changes in market conditions.</P>
              <P>(b) For purposes of this clause, the intrinsic value of an item is defined as follows:</P>
              <P>(1) If the item is one which is sold, or is substantially similar or functionally equivalent to one that is sold in substantial quantities to the general public, intrinsic value is the established catalog or market price, plus the value of any unique requirements, including delivery terms, inspection, packaging, or labeling.</P>
              <P>(2) If there is no comparable item sold in substantial quantities to the general public, intrinsic value is defined as the price an individual would expect to pay for the item based upon an economic quantity as defined in FAR 52.207-4, plus the value of any unique requirements, including delivery terms, inspection, packaging, or labeling.</P>
              <P>(c) At any time up to two years after delivery of a space part or item of support equipment, the contracting officer may notify the contractor that based on all information available at the time of the notice, the price of the part or item apparently exceeds its intrinsic value.</P>

              <P>(d) If notified in accordance with paragraph (c) of this clause, the contractor <PRTPAGE P="196"/>agrees to enter into good faith negotiations with the Government to determine if, and in what amount, the Government is entitled to a refund.</P>
              <P>(e) If agreement pursuant to paragraph (d) of this clause, cannot be reached, and the Navy's return of the new or unused item to the contractor is practical, the Navy, subject to the contractor's agreement, may elect to return the item to the contractor. Upon return of the item to its original point of government acceptance, the contractor shall refund in full the price paid. If no agreement pursuant to paragraph (d) of this clause is reached, and return of the item by the Navy is impractical, the contracting officer may, with the approval of the Head of the Contracting Activity, issue a contracting officer's final decision on the matter, subject to contractor appeal as provided in the Disputes clause.</P>
              <P>(f) The contractor will make refunds, as required under this clause, in accordance with instructions from the contracting officer.</P>
              <P>(g) The contractor shall not be liable for a refund if the contractor advised the contracting officer in a timely manner that the price it would propose for a spare part or item of support equipment exceeded its intrinsic value, and with such advice, specified the estimated proposed price, the estimated intrinsic value, and known alternative sources or items, if any, that can meet the requirement.</P>
              <P>(h) This clause does not apply to any spare parts or items of support equipment whose price is determined through adequate price competition. This clause also does not apply to any spare part or item of support equipment with a unit price in excess of $100,000; or in excess of $25,000 if the contractor submitted, and certified the currency, accuracy and completeness of, cost or pricing data applicable to the item.</P>
            </EXTRACT>
            <HD SOURCE="HD3">(End of clause)</HD>
          </SECTION>
          <SECTION>
            <SECTNO>5252.243-9000—5252.243-9001</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
        </SUBPART>
      </PART>
    </CHAPTER>
    <CHAPTER>
      <RESERVED>CHAPTER 53—DEPARTMENT OF THE AIR FORCE FEDERAL ACQUISITION REGULATION SUPPLEMENT [RESERVED]</RESERVED>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 54 (10-1-05 Edition)</LRH>
      <RRH>Defense Logistics Agency</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="197"/>
          <HD SOURCE="HED">CHAPTER 54—DEFENSE LOGISTICS AGENCY, DEPARTMENT OF DEFENSE</HD>
          <P>(Parts 5400 to 5499)</P>
        </TOCHD>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>5416</PT>
          <SUBJECT>Types of contracts</SUBJECT>
          <PG>199</PG>
          <PT>5433</PT>
          <SUBJECT>Protests, disputes and appeals</SUBJECT>
          <PG>199</PG>
          <PT>5452</PT>
          <SUBJECT>Solicitation provisions and contract clauses</SUBJECT>
          <PG>199</PG>
        </CHAPTI>
      </TOC>
      <PART>
        <PRTPAGE P="199"/>
        <EAR>Pt. 5416</EAR>
        <HD SOURCE="HED">PART 5416—TYPES OF CONTRACTS</HD>
        <CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5416.2—Fixed Price Contracts</HD>
            <SECHD>Sec.</SECHD>
            <SECTNO>5416.203</SECTNO>
            <SUBJECT>Fixed-price contracts with economic price adjustment.</SUBJECT>
            <SECTNO>5416.203-1</SECTNO>
            <SUBJECT>Description.</SUBJECT>
            <SECTNO>5416.203-3</SECTNO>
            <SUBJECT>Limitations.</SUBJECT>
            <SECTNO>5416.203-4</SECTNO>
            <SUBJECT>Contract clauses.</SUBJECT>
          </SUBPART>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>Fixed Price Contracts</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>64 FR 41835, Aug. 2, 1999, unless otherwise noted.</P>
        </SOURCE>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5416.2—Fixed Price Contracts</HD>
          <SECTION>
            <SECTNO> 5416.203</SECTNO>
            <SUBJECT>Fixed-price contracts with economic price adjustment.</SUBJECT>
          </SECTION>
          <SECTION>
            <SECTNO> 5416.203-1</SECTNO>
            <SUBJECT>Description.</SUBJECT>
            <P>(a)(S-90) Adjustments based on established prices. Established prices may reflect industry-wide and/or geographically based market price fluctuations for commodity groups, specific supplies or services, or contract end items.</P>
            <P>(c)(S-90) Adjustments based on cost indexes of labor or materials. These price adjustments may also be based on increases or decreases in indexes for commodity groups, specific supplies or services, or contract end items.</P>
          </SECTION>
          <SECTION>
            <SECTNO> 5416.203-3</SECTNO>
            <SUBJECT>Limitations.</SUBJECT>
            <P>(S-90) A fixed price contract with economic price adjustment may also be used to provide for price adjustments authorized in this section.</P>
          </SECTION>
          <SECTION>
            <SECTNO> 5416.203-4</SECTNO>
            <SUBJECT>Contract clauses.</SUBJECT>
            <P>(S-90) When the contracting officer determines that an existing EPA clause is not appropriate, the contracting officer may develop and use another EPA clause in accordance with 5416.203-1 (a)(S-90) or (c)(S-90). Established prices and cost indexes need not reflect changes in the costs or established prices of a specific contractor. The established price or cost index may be derived from sales prices in the marketplace, quotes, or assessments as reported or made available in a consistent manner in a publication, electronic database, or other form, by an independent trade association, Governmental body, or other third party independent of the contractor. More than one established price or cost index may be combined in a formula for economic price adjustment purposes in the absence of an appropriate single price or cost index.</P>
          </SECTION>
        </SUBPART>
      </PART>
      <PART>
        <EAR>Pt. 5433</EAR>
        <HD SOURCE="HED">PART 5433—PROTESTS, DISPUTES AND APPEALS</HD>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>10 U.S.C. Chapter 137.</P>
        </AUTH>
        <SECTION>
          <SECTNO>5433.214.</SECTNO>
          <SUBJECT>Alternative Dispute Resolution (ADR).</SUBJECT>
          <P>The contracting officer shall insert the provision in 5452.233 in all solicitations unless the conditions at FAR 33.203(b) apply.</P>
          <CITA>[66 FR 27474, May 17, 2001]</CITA>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 5452</EAR>
        <HD SOURCE="HED">PART 5452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES</HD>
        <CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5452.2—Texts of Provisions and Clauses</HD>
            <SECHD>Sec.</SECHD>
            <SECTNO>5452.233-9001</SECTNO>
            <SUBJECT>Disputes: Agreement to Use Alternative Dispute Resolution (ADR).</SUBJECT>
            <SECTNO>5452.249</SECTNO>
            <SUBJECT>Allocation.</SUBJECT>
          </SUBPART>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>5 U.S.C. 301, 10 U.S.C. 2202, 48 CFR part 1, subpart 1.3 and 48 CFR part 201, subpart 201.3</P>
        </AUTH>
        <SUBPART>
          <HD SOURCE="HED">Subpart 5452.2—Texts of Provisions and Clauses</HD>
          <SECTION>
            <SECTNO>5452.233-9001</SECTNO>
            <SUBJECT>Disputes: Agreement to Use Alternative Dispute Resolution (ADR).</SUBJECT>
            <P>As prescribed in 5433.214, insert the following provision:</P>
            <EXTRACT>
              <HD SOURCE="HD1">Disputes: Agreement to Use Alternative Dispute Resolution (ADR) (Apr 2001)—DLAD</HD>
              <P>(a) The parties agree to negotiate with each other to try to resolve any disputes that may arise. If unassisted negotiations are unsuccessful, the parties will use alternative dispute resolution (ADR) techniques to try to resolve the dispute. Litigation will only be considered as a last resort when ADR is unsuccessful or has been documented by the party rejecting ADR to be inappropriate for resolving the dispute.</P>

              <P>(b) Before either party determines ADR inappropriate, that party must discuss the use of ADR with the other party. The documentation rejecting ADR must be signed by <PRTPAGE P="200"/>an official authorized to bind the contractor (see FAR 52.233-1), or, for the Agency, by the contracting officer, and approved at a level above the contracting officer after consultation with the ADR Specialist and with legal counsel. Contractor personnel are also encouraged to include the ADR Specialist in their discussions with the contracting officer before determining ADR to be inappropriate.</P>
              <P>(c) If you wish to opt out of this clause, check here [ ]. Alternate wording may be negotiated with the contracting officer.</P>
            </EXTRACT>
            <CITA>[66 FR 27474, May 17, 2001]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>5452.249</SECTNO>
            <SUBJECT>Allocation.</SUBJECT>
            <P>The Defense Fuel Supply Center is authorized to use the following clause in domestic and overseas petroleum solicitations/contracts, including those for Canal Zone and Puerto Rico, when a fixed-price contract is contemplated and the contract amount is expected to exceed the small purchase limitation.</P>
            <EXTRACT>
              <HD SOURCE="HD1">Allocation (DFSC 1995) (Deviation) (9F01)</HD>
              <P>(a) Reduced Supplies.</P>
              <P>If, for any cause beyond the control and without the fault or negligence of the Contractor, the total supply of crude oil and/or refined petroleum product is reduced below the level that would have otherwise been available to the Contractor, the Contractor allocates to its regular customers its remaining available supplies of crude oil or product, then the Contractor may also allocate to the U.S. Government supplies to be delivered under this contract, provided—</P>
              <P>(1) Prompt notice of and evidence substantiating the necessity to allocate and describing the allocation rate for all the Contractor's customers are submitted to the Contracting Officer;</P>
              <P>(2) Allocation among the Contractor's regular customers is made on a fair and reasonable basis (except where allocation on a different basis is required by a governmental authority, agency or instrumentality); and</P>
              <P>(3) Reduction of the quantity of product due the Government under this contract shall not exceed the pro rata amount by which the Contractor reduces delivery to its other contractual customers.</P>
              <P>(b) Additional Supplies.</P>
              <P>If, after the event causing the shortage of crude oil and/or refined petroleum product as described in (a) above, additional supply becomes available to the Contractor, the Contracting Officer may choose any one of the following three possible courses of action:</P>
              <P>(1) Accept an updated pro rata reduction as outlined in (a);</P>
              <P>(2) Determine that continuance of the contract with the quantities as originally stated in the Schedule is in the best interests of the Government; or</P>
              <P>(3) Terminate the contract as permitted in (d) below.</P>
              <P>(c) Reduced Deliveries.</P>
              <P>If the Contractor believes that a law, regulation, or order of a foreign government requires the Contractor to deliver less than the quantity set forth in the Schedule for any location within that country, the Contractor may request allocation in accordance with (a) above. In addition to the criteria in (a) above, the Contractor's request shall cite—</P>
              <P>(1) The law, regulation or order, furnishing copies of the same;</P>
              <P>(2) The authority under which is imposed; and</P>
              <P>(3) The nature of the Government's waiver, exception, and enforcement procedure.</P>
              <P>The Contracting Officer will promptly review the matter and advise the Contractor whether or not the need to allocate has been substantiated. If the law, regulation, or order requiring the Contractor to reduce deliveries ceases to be effective, the Contractor shall resume deliveries in accordance with the original Schedule.</P>
              <P>(d) If, as a result of reduced deliveries permitted by (a), (b), or (c) above, the Contracting Officer decides that continuation of this contract is no longer in the best interests of the Government, the Government may terminate this contract or any quantity thereunder, by written notice, at no cost to the Government. However, the Government shall not be relieved of its obligation to pay for supplies actually delivered to and accepted by it.</P>
              <P>(e) Except as otherwise stated in (b) above, any volumes omitted pursuant to (a) or (b) above shall be deleted from this contract, and the Contractor shall have no continuing obligation, so far as this contract is concerned, to make up such omitted supplies.</P>
              <P>(f) For Posts, Camps, and Stations contracts, Department of Energy priority orders and allocation regulations will take precedence over any conflicting provisions of this clause.</P>
              <P>(g) For Bulk Fuels contracts, the provisions contained in (a) and (b) above shall be inoperative when the Secretary of Defense makes a written determination that it is essential to the National Defense that the Defense Fuel Supply Center be provided contract volumes exceeding the pro rata amount of product to which it would otherwise be entitled. However, in no case will the Contractor be required, under this contract, to supply more than 100% of the quantity specified in the Schedule.</P>
            </EXTRACT>
            <HD SOURCE="HD3">(End of clause)</HD>
            <CITA>[60 FR 21992, May 4, 1995]</CITA>
          </SECTION>
        </SUBPART>
      </PART>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 57 (10-1-05 Edition)</LRH>
      <RRH>African Development Foundation</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="201"/>
          <HD SOURCE="HED">CHAPTER 57—AFRICAN DEVELOPMENT FOUNDATION</HD>
          <P>(Parts 5700 to 5799)</P>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>5706</PT>
          <SUBJECT>Competition requirements</SUBJECT>
          <PG>203</PG>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="203"/>
        <HD SOURCE="HED">SUBCHAPTER B—ACQUISITION PLANNING</HD>
        <PART>
          <EAR>Pt. 5706</EAR>
          <HD SOURCE="HED">PART 5706—COMPETITION REQUIREMENTS</HD>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>40 U.S.C. 474.</P>
          </AUTH>
          <SUBPART>
            <HD SOURCE="HED">Subpart 5706.3—Other Than Full and Open Competition</HD>
            <SECTION>
              <SECTNO>5706.302-70</SECTNO>
              <SUBJECT>Impairment of foreign aid programs.</SUBJECT>
              <P>(a) Full and open competition need not be obtained when it would impair or otherwise have an adverse effect on programs conducted for the purposes of foreign aid, relief and rehabilitation.</P>
              <P>(b) <E T="03">Application.</E> This authority may be used for:</P>
              <P>(1) An award under section 506(a)(5) of the African Development Foundation Act involving a personal service contractor serving abroad;</P>
              <P>(2) An award of $100,000 or less for audit, evaluation or program support services to be provided abroad;</P>
              <P>(3) An award for which the President of the Foundation makes a formal written determination, with supporting findings, that compliance with full and open competition procedures would impair foreign assistance objectives, and would be inconsistent with the fulfillment of the Foundation program.</P>
              <P>(c) <E T="03">Limitation.</E> (1) Offers shall be requested from as many potential offerors as is practicable under the circumstances.</P>
              <P>(2) The contract file must include an appropriate explanation and support justifying award without full and open competition, as provided in FAR 6.303, except that determinations made under paragraph (b)(3) of this section will not be subject to the requirement for contracting officer certification or to approvals in accord with FAR 6.304.</P>
              <CITA>[53 FR 5578, Feb. 25, 1988]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
      </SUBCHAP>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 61 (10-1-05 Edition)</LRH>
      <RRH>GSA Board of Contract Appeals</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="205"/>
          <HD SOURCE="HED">CHAPTER 61—GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS</HD>
          <P>(Parts 6100 to 6199)</P>
        </TOCHD>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>6101</PT>
          <SUBJECT>Rules of procedure of the General Services Administration Board of Contract Appeals (standard proceedings)</SUBJECT>
          <PG>207</PG>
          <PT>6102</PT>
          <SUBJECT>Rules of procedure of the General Services Administration Board of Contract Appeals (expedited proceedings)</SUBJECT>
          <PG>236</PG>
          <PT>6103</PT>
          <SUBJECT>Rules of procedure for transportation rate cases</SUBJECT>
          <PG>238</PG>
          <PT>6104</PT>
          <SUBJECT>Rules of procedure for travel and relocation expenses cases</SUBJECT>
          <PG>240</PG>
          <PT>6105</PT>
          <SUBJECT>Rules of procedure for decisions authorized by 31 U.S.C. 3529</SUBJECT>
          <PG>242</PG>
        </CHAPTI>
      </TOC>
      <PART>
        <PRTPAGE P="207"/>
        <EAR>Pt. 6101</EAR>
        <HD SOURCE="HED">PART 6101—RULES OF PROCEDURE OF THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS (STANDARD PROCEEDINGS)</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6101.0</SECTNO>
          <SUBJECT>Foreword.</SUBJECT>
          <SECTNO>6101.1</SECTNO>
          <SUBJECT>Scope of rules; definitions; construction; rulings and orders; panels; situs [Rule 101].</SUBJECT>
          <SECTNO>6101.2</SECTNO>
          <SUBJECT>Time: enlargement; computation [Rule 102].</SUBJECT>
          <SECTNO>6101.3</SECTNO>
          <SUBJECT>Service of papers [Rule 103].</SUBJECT>
          <SECTNO>6101.4</SECTNO>
          <SUBJECT>Appeal file [Rule 104].</SUBJECT>
          <SECTNO>6101.5</SECTNO>
          <SUBJECT>Filing cases; time limits for filing; docketing [Rule 105].</SUBJECT>
          <SECTNO>6101.6</SECTNO>
          <SUBJECT>Appearances; notice of appearance [Rule 106].</SUBJECT>
          <SECTNO>6101.7</SECTNO>
          <SUBJECT>Pleadings in appeals [Rule 107].</SUBJECT>
          <SECTNO>6101.8</SECTNO>
          <SUBJECT>Motions [Rule 108].</SUBJECT>
          <SECTNO>6101.9</SECTNO>
          <SUBJECT>Election of hearing or record submission [Rule 109].</SUBJECT>
          <SECTNO>6101.10</SECTNO>
          <SUBJECT>Conferences; conference memorandum; prehearing order; prehearing and presubmission briefs [Rule 110].</SUBJECT>
          <SECTNO>6101.11</SECTNO>
          <SUBJECT>Submission on the record without a hearing [Rule 111].</SUBJECT>
          <SECTNO>6101.12</SECTNO>
          <SUBJECT>Record of Board proceedings [Rule 112].</SUBJECT>
          <SECTNO>6101.13-6101.14</SECTNO>
          <SUBJECT>[Reserved]</SUBJECT>
          <SECTNO>6101.15</SECTNO>
          <SUBJECT>General provisions governing discovery [Rule 115].</SUBJECT>
          <SECTNO>6101.16</SECTNO>
          <SUBJECT>Depositions [Rule 116].</SUBJECT>
          <SECTNO>6101.17</SECTNO>
          <SUBJECT>Interrogatories to parties; requests for admission; requests for production of documents [Rule 117].</SUBJECT>
          <SECTNO>6101.18</SECTNO>
          <SUBJECT>Sanctions and other proceedings [Rule 118].</SUBJECT>
          <SECTNO>6101.19</SECTNO>
          <SUBJECT>Hearings: scheduling; notice; unexcused absences [Rule 119].</SUBJECT>
          <SECTNO>6101.20</SECTNO>
          <SUBJECT>Subpoenas [Rule 120].</SUBJECT>
          <SECTNO>6101.21</SECTNO>
          <SUBJECT>Hearing procedures [Rule 121].</SUBJECT>
          <SECTNO>6101.22</SECTNO>
          <SUBJECT>Admissibility and weight of evidence [Rule 122].</SUBJECT>
          <SECTNO>6101.23</SECTNO>
          <SUBJECT>Exhibits [Rule 123].</SUBJECT>
          <SECTNO>6101.24</SECTNO>
          <SUBJECT>Transcripts of proceedings; corrections [Rule 124].</SUBJECT>
          <SECTNO>6101.25</SECTNO>
          <SUBJECT>Briefs and memoranda of law [Rule 125].</SUBJECT>
          <SECTNO>6101.26</SECTNO>
          <SUBJECT>Consolidation; separate hearings; separate determination of liability [Rule 126].</SUBJECT>
          <SECTNO>6101.27</SECTNO>
          <SUBJECT>Stay or suspension of proceedings; dismissals in lieu of stay or suspension [Rule 127].</SUBJECT>
          <SECTNO>6101.28</SECTNO>
          <SUBJECT>Dismissals [Rule 128].</SUBJECT>
          <SECTNO>6101.29</SECTNO>
          <SUBJECT>Decisions: format; procedure [Rule 129].</SUBJECT>
          <SECTNO>6101.30</SECTNO>
          <SUBJECT>Full Board consideration [Rule 130].</SUBJECT>
          <SECTNO>6101.31</SECTNO>
          <SUBJECT>Clerical mistakes [Rule 131].</SUBJECT>
          <SECTNO>6101.32</SECTNO>
          <SUBJECT>Reconsideration; amendment of decisions; new hearings [Rule 132].</SUBJECT>
          <SECTNO>6101.33</SECTNO>
          <SUBJECT>Relief from decision or order [Rule 133].</SUBJECT>
          <SECTNO>6101.34</SECTNO>
          <SUBJECT>Harmless error [Rule 134].</SUBJECT>
          <SECTNO>6101.35</SECTNO>
          <SUBJECT>Award of costs [Rule 135].</SUBJECT>
          <SECTNO>6101.36</SECTNO>
          <SUBJECT>Payment of Board awards [Rule 136].</SUBJECT>
          <SECTNO>6101.37</SECTNO>
          <SUBJECT>Record on review of a Board decision [Rule 137].</SUBJECT>
          <SECTNO>6101.38</SECTNO>
          <SUBJECT>Office of the Clerk of the Board [Rule 138].</SUBJECT>
          <SECTNO>6101.39</SECTNO>
          <SUBJECT>Seal of the Board [Rule 139].</SUBJECT>
          <SECTNO>6101.40</SECTNO>
          <SUBJECT>Forms [Rule 140].</SUBJECT>
          <APP>Appendix to Part 6101—Form Nos. 1-5</APP>
          <FP SOURCE="FP-2">Form 1—Notice of Appeal, GSA Form 2465.</FP>
          <FP SOURCE="FP-2">Form 2—Notice of Appearance.</FP>
          <FP SOURCE="FP-2">Form 3—Subpoena, GSA Form 9534.</FP>
          <FP SOURCE="FP-2">Form 4—Government Certificate of Finality.</FP>
          <FP SOURCE="FP-2">Form 5—Appellant/Applicant Certificate of Finality.</FP>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>41 U.S.C. 601-613.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>61 FR 52349, Oct. 7, 1996, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6101.0</SECTNO>
          <SUBJECT>Foreword.</SUBJECT>
          <P>(a) The General Services Administration Board of Contract Appeals was established under the Contract Disputes Act of 1978, 41 U.S.C. 601-613, as an independent tribunal to hear and decide contract disputes between government contractors and the General Services Administration (GSA) and other executive agencies of the United States.</P>
          <P>(b) As an agency board established under the Contract Disputes Act, the Board is required to “provide to the fullest extent practicable, informal, expeditious and inexpensive resolution of disputes.” 41 U.S.C. 607(e). The rules in part 6101 represent the Board's concerted effort to be responsive to this charge in standard proceedings. In further response to this mandate, the Board also uses a variety of techniques intended to shorten and simplify, when appropriate, the proceedings normally used to resolve contract disputes. These techniques are described in part 6102.</P>

          <P>(c) As indicated in part 6102, the Board fully supports the use of alternative dispute resolution (ADR) in all appropriate cases. To encourage the prompt, expert, and inexpensive resolution of contract disputes as promoted by the Federal Acquisition Streamlining Act of 1994, Public Law 103-355, 108 Stat. 3243, the Board will also make a Board Neutral available for an ADR proceeding, as described in 6102.4, either before or after the issuance of a decision by a contracting officer of any <PRTPAGE P="208"/>agency if a joint written request is submitted to the Office of the Clerk of the Board by the parties.</P>
          <P>(d) The Board also conducts proceedings as required under other laws. In all matters before it, the Board will act in accordance with this part and Part 6102 and applicable standards of conduct so that the integrity, impartiality, and independence of the Board are preserved.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.1</SECTNO>
          <SUBJECT>Scope of rules; definitions; construction; rulings and orders; panels; situs [Rule 101].</SUBJECT>
          <P>(a) <E T="03">Scope.</E> The rules contained in this part and Part 6102 govern proceedings in all cases filed with the Board on or after October 7, 1996, and all further proceedings in cases then pending, except to the extent that, in the opinion of the Board, their use in a particular case pending on the effective date would be infeasible or would work an injustice, in which event the former procedure applies. The Board will look to the rules in this part and Part 6102 for guidance in conducting other proceedings authorized by law.</P>
          <P>(b) <E T="03">Definitions</E>—(1) <E T="03">Appeal; appellant.</E> The term “appeal” means a contract dispute filed with the Board. The term “appellant” means a party filing an appeal.</P>
          <P>(2) <E T="03">Application; applicant.</E> The term “application” means a submission to the Board of a request for award of costs, under the Equal Access to Justice Act, 5 U.S.C. 504, pursuant to 6101.35. The term “applicant” means a party filing an application.</P>
          <P>(3) <E T="03">Board judge; judge.</E> The term “Board judge” or “judge” means a member of the Board.</P>
          <P>(4) <E T="03">Case.</E> The term “case” means an appeal, petition, or application.</P>
          <P>(5) <E T="03">Filing.</E> (i) Any document, other than a notice of appeal or an application for award of costs, is filed when it is received by the Office of the Clerk of the Board during the Board's working hours. A notice of appeal or an application for award of costs is filed upon the earlier of:</P>
          <P>(A) Its receipt by the Office of the Clerk of the Board or</P>
          <P>(B) If mailed, the date on which it is mailed. A United States Postal Service postmark shall be prima facie evidence that the document with which it is associated was mailed on the date thereof.</P>
          <P>(ii) Facsimile transmissions to the Board and the parties are permitted. Parties are expected to submit their facsimile machine numbers with their filings. The Board's facsimile machine number is: (202) 501-0664. The filing of a document by facsimile transmission occurs upon receipt by the Board of the entire printed submission. Parties are specfically cautioned that deadlines for the filing of cases will not be extended merely because the Board's facsimile machine is busy or otherwise unavailable at the time on which the filing is due.</P>
          <P>(6) <E T="03">Party.</E> The term “party” means an appeallant, applicant, petitioner, or respondent.</P>
          <P>(7) <E T="03">Petition; petitioner.</E> The term “petition” means a request filed under 41 U.S.C. 605(c)(4) that the Board direct a contracting officer to issue a written decision on a claim. The term “petitioner” means a party submitting a petition.</P>
          <P>(8) <E T="03">Respondent.</E> The term “respondent” means the Government agency whose decision, action, or inaction is the subject of an appeal, petition, or appplication.</P>
          <P>(9) <E T="03">Working day.</E> The term “working day” means any date other than a Saturday, Sunday, or federal holiday.</P>
          <P>(10) <E T="03">Working hours.</E> The Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each working day.</P>
          <P>(c) <E T="03">Construction.</E> The rules in this part and part 6102 shall be construed to secure the just, speedy, and inexpensive resolution of every case. The Board looks to the Federal Rules of Civil Procedure for guidance in construing those Board rules which are similar to Federal Rules.</P>
          <P>(d) <E T="03">Rulings, orders, and directions.</E> The Board may apply the rules in this part and part 6102 and make such rulings and issue such orders and directions as are necessary to secure the just, speedy, and inexpensive resolution of every case before the Board. Any ruling, order, or direction that the Board may make or issue pursuant to the rules in this part and part 6102 may be made on the motion or request of any party or on the initiative of the Board. <PRTPAGE P="209"/>The Board may also amend, alter, or vacate a ruling, order, or direction upon such terms as are just. In making rulings and issuing orders and directions pursuant to the rules in this part and part 6102, the Board takes into consideration those Federal Rules of Civil Procedure which address matters not specifically covered in this part and part 6102.</P>
          <P>(e) <E T="03">Panels.</E> Each case will be assigned to a panel consisting of three judges, with one member designated as the panel chairman, in accordance with such procedures as may be established by the Board. The panel chairman is responsible for processing the case, including scheduling and conducting proceedings and hearings. In addition, the panel chairman may, without participation by other panel members, decide an appeal under the small claims procedure (6102.2), rule on nondispositive motions (except for amounts in controversy under 6102.2(a)(2)), and dismiss a case if no party objects (6101.28(c)). All other matters, except for those before the full Board under 6101.30, are decided for the Board by a majority of the panel.</P>
          <P>(f) <E T="03">Situs.</E> The address of the Office of the Clerk of the Board is: Room 7022, General Services Administration Building, 18th and F Streets, NW., Washington, DC 20405. The Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile machine number is (202) 501-0664.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.2</SECTNO>
          <SUBJECT>Time: enlargement; computation [Rule 102].</SUBJECT>
          <P>(a) <E T="03">Time for performing required actions.</E> All time limitations prescribed in the rules in this part and part 6102 or in any order or direction given by the Board are maximums, and the action required should be accomplished in less time whenever possible.</P>
          <P>(b) <E T="03">Enlarging time.</E> Upon request of a party for good cause shown, the Board may enlarge any time prescribed by the rules in this part and part 6102 or by an order or direction of the Board. The exception is the time limit for filing appeals (6101.5(b)(1)). A written request is required, but in exigent circumstances an oral request may be made and followed by a written request. An enlargement of time may be granted even through the request was filed after the time for taking the required action expired, but the party requesting the enlargement must show good cause for its inability to make the request before that time expired.</P>
          <P>(c) <E T="03">Computing time.</E> Except as otherwise required by law, in computing a period of time prescribed by the rules in this part and part 6102 or by order of the Board, the day from which the designated period of time begins to run shall not counted, but the last day of the period shall be counted unless that day is (1) a Saturday, a Sunday, or a federal holiday, or (2) a day on which the Office of the Clerk of the Board is required to close earlier than 4:30 p.m., or does not open at all, as in the case of inclement weather, in which event the period shall include the next working day. Except as otherwise provided in this paragraph, when the period of time prescribed or allowed is less than 11 days, any intervening Saturday, Sunday, or federal holiday shall not be counted. When the period of time prescribed or allowed is 11 days or more, intervening Saturdays, Sundays, and federal holidays shall be counted. Time for filing any document or copy thereof with the Board expires when the Office of the Clerk of the Board closes on the last day on which such filing may be made.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.3</SECTNO>
          <SUBJECT>Service of papers [Rule 103].</SUBJECT>
          <P>(a) <E T="03">On whom and when service must be made.</E> When a party sends a document to the Board it must at the same time send a copy to the other party by mail or some other equally or more expeditious means of transmittal. Subpoenas (6101.20) and documents filed <E T="03">in camera</E> (6101.12(h)) are exceptions to this requirement. Any papers required to be served on a party (except requests for discovery and responses thereto, unless ordered by the Board to be filed) shall be filed with the Board before service or within a reasonable time thereafter.</P>
          <P>(b) <E T="03">Proof of service.</E> Except when service is not required, a party sending a document to the Board must indicate to the Board that a copy has also been sent to the other party. This may be done by certificate of service, by the notation of a photostatic copy (cc:), or <PRTPAGE P="210"/>by any other means that can reasonably be expected to indicate to the Board that the other party has been provided a copy.</P>
          <P>(c) <E T="03">Failure to make service.</E> If a document sent to the Board by a party does not indicate that a copy has been served on the other party, the Board may return the document to the party that submitted it with such directions as it considers appropriate, or the Board may inquire whether a party has received a copy and note on the record the fact of inquiry and the response, and may also direct the party that submitted the document to serve a copy on the other party. In the absence of proof of service a document may be treated by the Board as not properly filed.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.4</SECTNO>
          <SUBJECT>Appeal file [Rule 104].</SUBJECT>
          <P>(a) <E T="03">Submission to the Board by the contracting officer.</E> (1) Within 30 calendar days from receipt of notice that an appeal has been filed, or within such time as the Board may allow, the contracting officer shall file with the Board appeal file exhibits consisting of all documents and other tangible things relevant to the claim and to the contracting officer's decision which has been appealed, including:</P>
          <P>(i) The contracting officer's decision, if any, from which the appeal is taken;</P>
          <P>(ii) The contract, if any, including amendments, specifications, plans, and drawings;</P>
          <P>(iii) All correspondence between the parties that is relevant to the appeal, including the written claim or claims that are the subject of the appeal, and evidence of their certification, if any;</P>
          <P>(iv) Affidavits or statements of any witnesses on the matter in dispute and transcripts of any testimony taken before the filing of the notice of appeal;</P>
          <P>(v) All documents and other tangible things on which the contracting officer relied in making the decision, and any correspondence relating thereto;</P>
          <P>(vi) The abstract of bids, if relevant; and</P>
          <P>(vii) Any additional existing evidence or information deemed necessary to determine the merits of the appeal.</P>
          <P>(2) The contracting officer shall serve a copy of the appeal file on the appellant at the same time that the contracting officer files it with the Board, except that</P>

          <P>(i) The contracting officer need not serve on the appellant those documents furnished the Board <E T="03">in camera</E> pursuant to 6101.12(h), and</P>

          <P>(ii) The contracting officer shall serve documents submitted under protective order only on those individuals who have been granted access to such documents by the Board. However, the contracting officer must serve on the appellant a list identifying the specific documents filed <E T="03">in camera</E> or under protective order with the Board, giving sufficient details necessary for their recognition. This list must also be filed with the Board as an exhibit to the appeal file.</P>
          <P>(b) <E T="03">Submission to the Board by the appellant.</E> Within 30 calendar days after filing of the respondent's appeal file exhibits, or within such time as the Board may allow, the appellant shall file with the Board for inclusion in the appeal file documents or other tangible things relevant to the appeal that have not been submitted by the contracting officer. The appellant shall serve a copy of its additional exhibits upon the respondent at the same time as it files them with the Board.</P>
          <P>(c) <E T="03">Submissions on order of the Board.</E> The Board may, at any time during the pendency of the appeal, require any party to file other documents and tangible things as additional exhibits.</P>
          <P>(d) <E T="03">Organization of the appeal file.</E> Appeal file exhibits may be originals or true, legible, and complete copies. They shall be arranged in chronological order within each submission, earliest documents first; bound in a loose-leaf binder on the left margin except where size or shape makes such binding impracticable; numbered; tabbed; and indexed. The numbering shall be consecutive, in whole arabic numerals (no letters, decimals, or fractions), and continuous from one submission to the next, so that the complete file, after all submissions, will consist of one set of consecutively numbered exhibits. In addition, the pages within each exhibit shall be numbered consecutively unless the exhibit already is paginated in a logical manner. Consecutive pagination of the entire file is not required. The index <PRTPAGE P="211"/>should include the date and a brief description of each exhibit and shall indicate which exhibits, if any, have been filed with the Board <E T="03">in camera</E> or under protective order or otherwise have not been served on every other party.</P>
          <P>(e) <E T="03">Lengthy or bulky materials.</E> The Board may waive the requirement to furnish other parties copies or duplicates of bulky, lengthy, or outsized materials submitted to the Board as exhibits.</P>
          <P>(f) <E T="03">Use of appeal file as evidence.</E> All exhibits in the appeal file, except for those as to which an objection has been sustained, are part of the record upon which the Board will render its decision. Unless otherwise ordered by the Board, objection to any exhibit may be made at any time before the first witness is sworn or, if the appeal is submitted on the record pursuant to 6101.11, at any time prior to or concurrent with the first record submission. The Board may enlarge the time for such objections and will consider an objection made during a hearing if the ground for objection could not reasonably have been earlier known to the objecting party. If an objection is sustained, the Board will so note in the record.</P>
          <P>(g) <E T="03">When appeal file not required.</E> Upon motion of a party, the Board may postpone or dispense with the submission of any or all appeal file exhibits.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.5</SECTNO>
          <SUBJECT>Filing cases; time limits for filing; docketing [Rule 105].</SUBJECT>
          <P>(a) <E T="03">Filing cases.</E> Filing of a case occurs as provided in 6101.1(b)(5).</P>
          <P>(1) <E T="03">Notice of appeal.</E> (i) A notice of appeal shall be in writing and should be signed by the appellant or by the appellant's attorney or authorized representative. If the appeal is from a contracting officer's decision, the notice of appeal should describe the decision in enough detail to enable the Board to differentiate that decision from any other; the appellant can satisfy this requirement by attaching to the notice of appeal a copy of the contracting officer's decision. If an appeal is taken from the failure of a contracting officer to issue a decision, the notice of appeal should describe in detail the claim that the contracting officer has failed to decide; the appellant can satisfy this requirement by attaching a copy of the written claim submission to the notice of appeal.</P>
          <P>(ii) A written notice in any form, including the one specified in the appendix to this part and part 6102, is sufficient to initiate an appeal. The notice of appeal should include the following information:</P>
          <P>(A) The number and date of the contract;</P>
          <P>(B) The name of the agency and the component thereof against which the claim has been asserted;</P>
          <P>(C) The name of the contracting officer whose decision or failure to decide is appealed and the date of the decision, if any;</P>
          <P>(D) A brief account of the circumstances giving rise to the appeal; and</P>
          <P>(E) An estimate of the amount of money in controversy, if any and if known.</P>
          <P>(iii) The appellant must send a copy of the notice of appeal to the contracting officer whose decision is appealed or, if there has been no decision, to the contracting officer before whom the appellant's claim is pending.</P>
          <P>(2) <E T="03">Petition.</E> (i) A petition shall be in writing and signed by the petitioner or by the petitioner's attorney or authorized representative. The petition should describe in detail the claim that the contracting officer has failed to decide; the contractor can satisfy this requirement by attaching to the petition a copy of the written claim submission.</P>
          <P>(ii) The petition should include the following information:</P>
          <P>(A) The number and date of the contract;</P>
          <P>(B) The name of the agency and the component thereof against which the claim has been asserted; and</P>
          <P>(C) The name of the contracting officer whose decision is sought.</P>
          <P>(3) <E T="03">Application.</E> An application for costs shall meet all requirements specified in 6101.35(c).</P>
          <P>(4) <E T="03">Other participation.</E> The Board may, on motion, in its discretion, permit an entity to participate in a case in a special or limited way, such as by filing an <E T="03">amicus curiae</E> brief.</P>
          <P>(b) <E T="03">Time limits for filing</E>—(1) <E T="03">Appeals.</E> (i) An appeal from a decision of a contracting officer shall be filed no later <PRTPAGE P="212"/>than 90 calendar days after the date the appellant receives that decision.</P>
          <P>(ii) An appeal may be filed with the Board should the contracting officer fail or refuse to issue a timely decision on a claim submitted in writing, properly certified if required.</P>
          <P>(2) <E T="03">Applications.</E> An application for costs shall be filed within 30 calendar days of a final disposition in the under-lying appeal, as provided in 6101.35(b).</P>
          <P>(c) <E T="03">Notice of docketing.</E> Notices of appeal, petitions, and applications will be docketed by the Office of the Clerk of the Board, and a written notice of docketing will be sent promptly to all parties.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.6</SECTNO>
          <SUBJECT>Appearances; notice of appearance [Rule 106].</SUBJECT>
          <P>(a) <E T="03">Appearances before the Board</E>—(1) <E T="03">Appellant; petitioner; applicant.</E> Any appellant, petitioner, or applicant may appear before the Board by an attorney-at-law licensed to practice in a state, commonwealth, or territory of the United States, or in the District of Columbia. An individual appellant, petitioner, or applicant may appear in his own behalf; a corporation, trust, or association may appear by one of its officers or by any other authorized employee; and a partnership may appear by one of its members or by any other authorized employee.</P>
          <P>(2) <E T="03">Respondent.</E> The respondent may appear before the Board by an attorney-at-law licensed to practice in a state, commonwealth, or territory of the United States, or in the District of Columbia. Alternatively, if not prohibited by agency regulation or otherwise, the respondent may appear by the contracting officer or by the contracting officer's authorized representative.</P>
          <P>(b) <E T="03">Notice of appearance.</E> Unless a notice of appearance is filed by some other person, the person signing the notice of appeal, petition, or application shall be deemed to have appeared on behalf of the appellant, petitioner, or applicant, and the head of the respondent agency's litigation office shall be deemed to have appeared on behalf of the respondent. A notice of appearance in the form specified in the appendix to this part and Part 6102 is sufficient. Attorneys representing parties before the Board are required to list the state bars to which they are admitted and their state bar numbers or other bar identifiers.</P>
          <P>(c) <E T="03">Withdrawal of appearance.</E> Any person who has filed a notice of appearance and who wishes to withdraw from a case must file a motion which includes the name, address, telephone number, and facsimile machine number of the person who will assume responsibility for representation of the party in question. The motion shall state the grounds for withdrawal unless it is accompanied by a representation from the successor representative or existing co-counsel that the established case schedule will be met.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.7</SECTNO>
          <SUBJECT>Pleadings in appeals [Rule 107].</SUBJECT>
          <P>(a) <E T="03">Pleadings required and permitted.</E> Except as the Board may otherwise order, the Board requires the submission of a complaint and an answer. In appropriate circumstances, the Board may order or permit a reply to an answer.</P>
          <P>(b) <E T="03">Complaint.</E> No later than 30 calendar days after the docketing of the appeal, the appellant shall file with the Board a complaint setting forth its claim or claims in simple, concise, and direct terms. The complaint should set forth the factual basis of the claim or claims, with appropriate reference to the contract provisions, and should state the amount in controversy, or an estimate thereof, if any and if known. No particular form is prescribed for a complaint, and the Board may designate the notice of appeal, a claim submission, or any other document as the complaint, either on its own initiative or on request of the appellant, if such document sufficiently states the factual basis and amount of the claim.</P>
          <P>(c) <E T="03">Answer.</E> No later than 30 calendar days after the filing of the complaint or of the Board's designation of a complaint, the respondent shall file with the Board an answer setting forth simple, concise, and direct statements of its defenses to the claim or claims asserted in the complaint, as well as any affirmative defenses it chooses to assert. A dispositive motion or a motion for a more definite statement may be filed in lieu of the answer only with the permission of the Board. If no answer is timely filed, the board may enter a <PRTPAGE P="213"/>general denial, in which case the respondent may thereafter amend the answer to assert affirmative defenses only by leave of the Board and as otherwise prescribed by paragraph (f) of this section. The Board will inform the parties when it enters a general denial on behalf of the respondent.</P>
          <P>(d) <E T="03">Reply to an answer.</E> If the Board orders or permits a reply to an answer, it shall be filed as directed by the Board.</P>
          <P>(e) <E T="03">Modifications to requirement for pleadings.</E> If the appellant has elected the small claims procedure provided by 6102.2 or the accelerated procedure provided by 6102.3, the submission of pleadings shall be governed by the applicable section.</P>
          <P>(f) <E T="03">Amendment of pleadings.</E> Each party to an appeal may amend its pleadings once without leave of the Board at any time before a responsive pleading is filed; if the pleading is one to which no responsive pleading is permitted, such amendment may be made at any time within 20 calendar days after it is served or, in small claims proceedings under 6102.2, within 10 working days after it is served. The Board may permit the parties to amend pleadings further on conditions fair to both parties. If a response to the unamended pleading was required by the rules in this part or by an order of the Board, a response to the amended pleading shall be filed no later than 30 calendar days after the filing of the amended pleading or, in small claims proceedings, no later than 15 calendar days after the filing of the amended pleading. 6101.12(e) concerns amendments to pleadings to conform to the evidence.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.8</SECTNO>
          <SUBJECT>Motions [Rule 108].</SUBJECT>
          <P>(a) <E T="03">How motions are made.</E> Motions may be oral or written. A written motion shall indicate the relief sought and, either in the text of the motion or in an accompanying legal memorandum, the grounds therefor. In addition, a motion for summary relief shall comply with the requirements of paragraph (g) of this section. 6101.25 prescribes the form and content of legal memoranda. Oral motions shall be made on the record and in the presence of the other party.</P>
          <P>(b) <E T="03">When motions may be made.</E> A motion filed in lieu of an answer pursuant to 6101.7(c) shall be filed no later than the date on which the answer is required to be filed or such later date as may be established by the Board. Any other dispositive motion shall be made as soon as practicable after the grounds therefor are known. Any other motion shall be made promptly or as required by this part.</P>
          <P>(c) <E T="03">Dispositive motions.</E> The following dispositive motions may properly be made before the Board:</P>
          <P>(1) Motions to dismiss for lack of jurisdiction or for failure to state a claim upon which relief can be granted;</P>
          <P>(2) Motions to dismiss for failure to prosecute;</P>
          <P>(3) Motions for summary relief (analogous to summary judgment); and</P>
          <P>(4) Any other motion to dismiss.</P>
          <P>(d) <E T="03">Other motions.</E> Other motions may be made in good faith and in proper form.</P>
          <P>(e) <E T="03">Jurisdictional questions.</E> The Board may at any time consider the issue of its jurisdiction to decide a case. When all facts touching upon the Board's jurisdiction are not to record, or in other appropriate circumstances, a decision on a jurisdictional question may be deferred pending a hearing on the merits or the filing of record submissions.</P>
          <P>(f) <E T="03">Procedure.</E> Unless otherwise directed by the Board, a party may respond to a written motion other than a motion pursuant to 6101.30, 6101.31, 6101.32, or 6101.33 at any time within 20 calendar days after the filing of the motion. Responses to motions pursuant to 6101.30, 6101.31, 6101.32, or 6101.33 may be made only as permitted or directed by the Board. The Board may permit hearing or oral argument on written motions and may require additional submissions from any of the parties.</P>
          <P>(g) <E T="03">Motions for summary relief.</E> (1) A motion for summary relief should be filed only when a party believes that, based upon uncontested material facts, it is entitled to relief in whole or in part as a matter of law. A motion for summary relief should be filed as soon as feasible, to allow the Board to rule on the motion in advance of a scheduled hearing date.</P>

          <P>(2) With each motion for summary relief, there shall be served and filed a <PRTPAGE P="214"/>separate document titled Statement of Uncontested Facts, which shall contain in separately numbered paragraphs all of the material facts upon which the moving party bases its motion and as to which it contends there is no genuine issue. This statement shall include references to the supporting affidavits or declarations and documents, if any, and to the 6101.4 appeal file exhibits relied upon to support such statement.</P>
          <P>(3) An opposing party shall file with its opposition (or cross-motion) a separate document titled Statement of Genuine Issues. This document shall identify, by reference to specific paragraph numbers in the moving party's Statement of Uncontested Facts, those facts as to which the opposing party claims there is a genuine issue necessary to be litigated. An opposing party shall state the precise nature of its disagreement and give its version of the facts. This statement shall include references to the supporting affidavits or declarations and documents, if any, and to the 6101.4 appeal file exhibits that demonstrate the existence of a genuine dispute. An opposing party may also file a Statement of Uncontested Facts as to any relevant matters not covered by the moving party's statement.</P>
          <P>(4) When a motion for summary relief is made and supported as provided in this section, an opposing party may not rest upon the mere allegations or denials of its pleadings, but the opposing party's response, by affidavits or as otherwise provided by this section, must set forth specific facts showing that there is a genuine issue of material fact. If the opposing party does not so respond, summary relief, if appropriate, shall be entered against that party. For good cause shown, if an opposing party cannot present facts essential to justify its opposition, the Board may defer ruling on the motion to permit affidavits to be obtained or depositions to be taken or other discovery to be conducted, or may made such other order as is just.</P>
          <P>(h) <E T="03">Effect of pending motion.</E> Except as this part and part 6102 provide or the Board may order, a pending motion shall not excuse the parties from proceeding with the case in accordance with this part and part 6102 and the orders and directions of the Board.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.9</SECTNO>
          <SUBJECT>Election of hearing or record submission [Rule 109].</SUBJECT>
          <P>Each party shall inform the Board, in writing, whether it elects a hearing or submission of its case on the record pursuant to 6101.11. Such an election may be filed at any time unless a time for filing is prescribed by the Board. A party electing to submit its case on the record pursuant to 6101.11 may also elect to appear at a hearing solely to cross-examine any witness presented by the opposing party, provided that the Board is informed of that party's intention within 10 working days of its receipt of notice of the election of hearing by the other party. If a hearing is elected, the election should state where and when the electing party desires the hearing to be held and should explain the reasons for its choices. A hearing will be held if either party elects one. If a party's decision whether to elect a hearing is dependent upon the intentions of the other party, it shall consult with the other party before filing its election. If there is to be a hearing, it will be held at a time and place prescribed by the Board after consultation with the party or parties electing the hearing. The record submissions from a party that has elected to submit its case on the record shall be due as provided in 6101.11.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.10</SECTNO>
          <SUBJECT>Conferences; conference memorandum; prehearing order; prehearing and presubmission briefs [Rule 110].</SUBJECT>
          <P>(a) <E T="03">Conferences.</E> The Board may convene the parties in conference, either by telephone or in person, for any purpose. The conference may be stenographically or electronically recorded, at the discretion of the Board. Matters to be considered and actions to be taken at a conference may include:</P>
          <P>(1) Simplifying, clarifying, or severing the issues;</P>

          <P>(2) Stipulations, admissions, agreements, and rulings to govern the admissibility of evidence, understandings on matters already of record, or other similar means of avoiding unnecessary proof;<PRTPAGE P="215"/>
          </P>
          <P>(3) Plans, schedules, and rulings to facilitate discovery;</P>
          <P>(4) Limiting the number of witnesses and other means of avoiding cumulative evidence;</P>
          <P>(5) Stipulations or agreements disposing of matters in dispute; or</P>
          <P>(6) Ways to expedite disposition of the case or to facilitate settlement of the dispute, including, if the parties and the Board agree, the use of alternative dispute resolution techniques, as provided in 6102.1 and 6102.4.</P>
          <P>(b) <E T="03">Conference memorandum.</E> The Board may prepare a memorandum of the results of a conference or issue an order reflecting any actions taken, or both. A memorandum or order so issued shall be placed in the record of the case and sent to each party. Each party shall have 5 working days after receipt of a memorandum to object to the substance of it.</P>
          <P>(c) <E T="03">Prehearing order.</E> The Board may issue a prehearing or presubmission order to govern the proceedings in a case.</P>
          <P>(d) <E T="03">Prehearing or presubmission briefs.</E> A party may, by leave of the Board, file a prehearing or presubmission brief at any time before the hearing or upon or before the date on which first record submissions are due.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.11</SECTNO>
          <SUBJECT>Submission on the record without a hearing [Rule 111].</SUBJECT>
          <P>(a) <E T="03">Submission on the record.</E> (1) A party may elect to submit its case on the record without a hearing. A party submitting its case on the record may include in its written record submission or submissions:</P>
          <P>(i) Any relevant documents or other tangible things it wishes the Board to admit into evidence;</P>
          <P>(ii) Affidavits, depositions, and other discovery materials that set forth relevant evidence; and</P>
          <P>(iii) A brief or memorandum of law.</P>
          <P>(2) The Board may require the submission of additional evidence or briefs and may order oral argument in a case submitted on the record.</P>
          <P>(b) <E T="03">Time for submission.</E> (1) If both parties have elected to submit the case on the record, the Board will issue an order prescribing the time for initial and, if appropriate, reply record submissions.</P>
          <P>(2) If one party has elected a hearing and the other party has elected to submit its case on the record, the party submitting on the record shall make its initial submission no later than the commencement of the hearing or at an earlier date if the Board so orders, and a further submission in the form of a brief at the time for submission of posthearing briefs.</P>
          <P>(c) <E T="03">Objections to evidence.</E> Unless otherwise directed by the Board, objections to evidence (other than the appeal file and supplements thereto) in a record submission may be made within 10 working days after the filing of the submission. Replies to such objections, if any, may be made within 10 working days after the filing of the objection. The Board may rule on such objections in its opinion deciding the merits or otherwise disposing of the case.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.12</SECTNO>
          <SUBJECT>Record of Board proceedings [Rule 112].</SUBJECT>
          <P>(a) <E T="03">Composition of the record for decision.</E> (1) The record upon which any decision of the Board will be rendered consists of:</P>
          <P>(i) The notice of appeal, petition, or application;</P>
          <P>(ii) Appeal file exhibits other than those as to which objection has been sustained;</P>
          <P>(iii) Hearing exhibits other than those as to which an objection has been sustained;</P>
          <P>(iv) Pleadings;</P>
          <P>(v) Motions and responses thereto;</P>
          <P>(vi) Memoranda, orders, rulings, and directions to the parties issued by the Board;</P>
          <P>(vii) Documents and other tangible things admitted in evidence by the Board;</P>
          <P>(viii) Written transcripts or electronic recordings of proceedings;</P>
          <P>(ix) Stipulations and admissions by the parties;</P>
          <P>(x) Depositions, or parts thereof, received in evidence;</P>
          <P>(xi) Written interrogatories and responses received in evidence;</P>
          <P>(xii) Briefs and memoranda of law; and</P>
          <P>(xiii) Anything else that the Board may designate.</P>

          <P>(2) All other papers and documents in a case are part of the administrative <PRTPAGE P="216"/>record of the proceedings. The administrative record shall include file and hearing exhibits offered but not received in evidence in a case; it may also include correspondence with and between the parties, and depositions, interrogatories, offers of proof contained in the transcript, and other documents that are not part of the record for decision.</P>
          <P>(b) <E T="03">Time for entry into the record.</E> Except as the Board may otherwise order, nothing other than posthearing briefs will be received into the record after a hearing is completed. In cases submitted on the record without a hearing, nothing will be received into the record after the time for filing of the last record submission. Briefs will be due as provided in 6101.25(b).</P>
          <P>(c) <E T="03">Closing of the record.</E> Except as the Board may otherwise order, no proof shall be received in evidence after a hearing is completed or, in cases submitted on the record without a hearing, after notice by the Board to the parties that the record is closed and that the case is ready for decision.</P>
          <P>(d) <E T="03">Notice that the case is ready for decision.</E> The Board will give written notice to the parties when the record is closed and the case is ready for decision.</P>
          <P>(e) <E T="03">Amendments to conform to the evidence.</E> When issues within the proper scope of a case, but not raised in the pleadings, have been raised without objection or with permission of the Board at a hearing (see 6101.21(h)) or in record submissions, they shall be treated in all respects as if they had been raised in the pleadings. The Board may formally amend the pleadings to conform to the proof or may order that the record be deemed to contain pleadings so amended.</P>
          <P>(f) <E T="03">Enlargement of the record.</E> The Board may at any time require or permit enlargement of the record with additional evidence and briefs. It may reopen the record to receive additional evidence and oral argument at a hearing.</P>
          <P>(g) <E T="03">Inspection of the record of proceedings; release of any paper, document, or tangible thing prohibited.</E> Except for any part thereof that is subject to a protective order or deemed an <E T="03">in camera</E> submission, the record of proceedings in a case shall be made available for inspection by any person. Such record shall be made available at the Office of the Clerk of the Board during the Board's normal working hours, as soon as practicable given the demands on the Board of processing the subject case and other cases. Except as provided in 6101.23(c) and 6101.37(d), no paper, document, or tangible thing which is part of the record of proceedings in a case may be released from the offices of the Board. Copies may be obtained by any person as provided in 6101.38(d). If such inspection or copying involves more than minimal costs to the Board, reimbursement will be required.</P>
          <P>(h) <E T="03">Protected and in camera submissions.</E> (1) A party may by motion request that the Board receive and hold materials under conditions that would limit access to them on the ground that such documents are privileged or confidential, or sensitive in some other way. The moving party must state the grounds for such limited access. The board may also determine on its own initiative to hold materials under such conditions. The manner in which such materials will be held, the persons who shall have access to them, and the conditions (if any) under which such access will be allowed will be specified in an order of the Board. If the materials are held under such an order, they will be part of the record of the case. If the Board denies the motion, the materials may be returned to the party that submitted them. If the moving party asks, however, that the materials be placed in the administrative record, <E T="03">in camera,</E> for the purpose of possible later review of the Board's denial, the Board will comply with the request.</P>

          <P>(2) A party may also ask, or the Board may direct, that testimony be received under protective order or <E T="03">in camera.</E> The procedures under paragraph (h)(1) of this section shall be followed with respect to such request or direction.</P>
        </SECTION>
        <SECTION>
          <PRTPAGE P="217"/>
          <SECTNO>6101.13-6101.14</SECTNO>
          <RESERVED>[Reserved]</RESERVED>
        </SECTION>
        <SECTION>
          <SECTNO>6101.15</SECTNO>
          <SUBJECT>General provisions governing discovery [Rule 115].</SUBJECT>
          <P>(a) <E T="03">Discovery methods.</E> The parties may obtain discovery by one or more of the following methods:</P>
          <P>(1) Depositions upon oral examination or written questions;</P>
          <P>(2) Written interrogatories;</P>
          <P>(3) Requests for production of documents or other tangible things; and</P>
          <P>(4) Requests for admission.</P>
          <P>(b) <E T="03">Scope of discovery.</E> Except as otherwise limited by order of the Board in accordance with this part and part 6102, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending case, whether it relates to the claim or defense of a party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.</P>
          <P>(c) <E T="03">Discovery limits.</E> The Board may limit the frequency or extent of use of the discovery methods set forth in this section if it determines that:</P>
          <P>(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;</P>
          <P>(2) The party seeking discovery has had ample opportunity by discovery in the case to obtain the information sought; or</P>
          <P>(3) The discovery is unduly burdensome and expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake.</P>
          <P>(d) <E T="03">Conduct of discovery.</E> Parties may engage in discovery only to the extent the Board enters an order which either incorporates an agreed plan and schedule acceptable to the Board or otherwise permits such discovery as the moving party can demonstrate is required for the expeditious, fair, and reasonable resolution of the case.</P>
          <P>(e) <E T="03">Discovery conference.</E> Upon request of a party or on its own initiative, the Board may at any time hold an informal meeting or telephone conference with the parties to identify the issues for discovery purposes; establish a plan and schedule for discovery; set limitations on discovery, if any; and determine such other matters as are necessary for the proper management of discovery. The Board may include in the conference such other matters as it deems appropriate in accordance with 6101.10.</P>
          <P>(f) <E T="03">Discovery objections.</E> (1) In connection with any discovery procedure, the Board, on motion or on its own initiative, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including, but not limited to, one or more of the following:</P>
          <P>(i) That the discovery not be had;</P>
          <P>(ii) That the discovery be had only on specified terms and conditions, including a designation of the time and place, or that the scope of discovery be limited to certain matters;</P>
          <P>(iii) That the discovery be conducted with no one present except persons designated by the Board; and</P>
          <P>(iv) That confidential information not be disclosed or that it be disclosed only in a designated way.</P>
          <P>(2) Unless otherwise ordered by the Board, any objection to a discovery request must be filed within 15 calendar days after receipt. A party shall fully respond to any discovery request to which it does not file a timely objection. The parties are required to make a good faith effort to resolve objections to discovery requests informally.</P>

          <P>(3) A party receiving an objection to a discovery request, or a party which believes that another party's response to a discovery request is incomplete or entirely absent, may file a motion to compel a response, but such a motion must include a representation that the moving party has tried in good faith, prior to filing the motion, to resolve the matter informally. The motion to compel shall include a copy of each discovery request at issue and the response, if any.<PRTPAGE P="218"/>
          </P>
          <P>(g) <E T="03">Failure to make or cooperate in discovery; sanctions.</E> If a party fails</P>
          <P>(i) To appear for a deposition, after being served with a proper notice;</P>
          <P>(ii) To serve answers or objections to interrogatories submitted under 6101.17, after proper service of interrogatories; or</P>
          <P>(iii) To serve a written response to a request for inspection, production, and copying of any documents and things under 6101.17, the party seeking discovery may move the Board to impose appropriate sanctions under 6101.18.</P>
          <P>(h) <E T="03">Subpoenas.</E> A party may request the issuance of a subpoena in aid of discovery under the provision of 6101.20.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.16</SECTNO>
          <SUBJECT>Depositions [Rule 116].</SUBJECT>
          <P>(a) <E T="03">When depositions may be taken.</E> Upon request of a party, the Board may order the taking of testimony of any person by deposition upon oral examination or written questions before an officer authorized to administer oaths at the place of examination. Attendance of witnesses may be compelled by subpoena as provided in 6101.20, and the Board may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order may designate the manner of recording, preserving, and filing the deposition and may include other provisions to ensure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may, nevertheless, arrange to have a stenographic transcription made at its own expense.</P>
          <P>(b) <E T="03">Depositions: time; place; manner of taking.</E> The time, place, and manner of taking depositions, including the taking of depositions by telephone, shall be as agreed upon by the parties or, failing such agreement, as ordered by the Board. A deposition taken by telephone is taken at the place where the deponent is to answer questions.</P>
          <P>(c) <E T="03">Use of depositions.</E> At a hearing on the merits or upon a motion or interlocutory proceeding, any part or all of a deposition, so far as admissible and as though the witness were then present and testifying, may be used against a party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:</P>
          <P>(1) Any deposition may be used by a party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.</P>
          <P>(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated to testify on behalf of a public or private corporation, partnership or association, or governmental agency which is a party may be used by an adverse party for any purpose.</P>
          <P>(3) The deposition of a witness, whether or not a party, may be used by a party for any purpose in its own behalf if the Board finds that:</P>
          <P>(i) The witness is dead;</P>
          <P>(ii) The attendance of the witness at the place of hearing cannot be reasonably obtained, unless it appears that the absence of the witness was procured by the party offering the deposition;</P>
          <P>(iii) The witness is unable to attend or testify because of illness, infirmity, age, or imprisonment;</P>
          <P>(iv) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or</P>
          <P>(v) Upon request and notice, exceptional circumstances exist which make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.</P>
          <P>(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which in fairness ought to be considered with the part introduced.</P>
          <P>(d) <E T="03">Depositions pending appeal from a decision of the Board.</E> (1) If an appeal has been taken from a decision of the Board, or before the taking of an appeal if the time therefor has not expired, the Board may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings before the Board. In such case, the party that desires to perpetuate testimony may make a motion before the Board for leave to take the depositions as if the <PRTPAGE P="219"/>action were pending before the Board. The motion shall show:</P>
          <P>(i) The names and addresses of the persons to be examined and the substance of the testimony which the moving party expects to elicit from each; and</P>
          <P>(ii) The reasons for perpetuating the testimony of the persons named.</P>
          <P>(2) If the Board finds that the perpetuation of testimony is proper to avoid a failure or a delay of justice, it may order the depositions to be taken and may make orders of the character provided for in 6101.15 and in this section. Thereupon, the depositions may be taken and used as prescribed in this part for depositions taken in actions pending before the Board. Upon request and for good cause shown, a judge may issue or obtain a subpoena, in accordance with 6101.20, for the purpose of perpetuating testimony by deposition during the pendency of an appeal from a Board decision.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.17</SECTNO>
          <SUBJECT>Interrogatories to parties; requests for admission; requests for production of documents [Rule 117].</SUBJECT>
          <P>Upon order from the Board permitting such discovery, a party may serve on another party written interrogatories, requests for admission, and requests for production of documents.</P>
          <P>(a) <E T="03">Written interrogatories.</E> Written interrogatories shall be answered separately in writing, signed under oath or accompanied by a declaration under penalty of perjury, and answered within 30 calender days after service. Objections shall be filed within the time limits set forth in 6101.15(f)(2). An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory may involve an opinion or contention that relates to fact or the application of law to fact, but the Board may order that such an interrogatory need not be answered until after designated discovery has been completed or until a conference has been held, or some other event has occurred.</P>
          <P>(b) <E T="03">Option to produce business records.</E> Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon which the interrogatory has been served, or from an examination, audit, or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries thereof. Such specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.</P>
          <P>(c) <E T="03">Written requests for admission.</E> A written request for the admission of the truth of any matter, within the proper scope of discovery, that relates to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents, is to be answered in writing and signed within 30 calendar days after service. Objections shall be filed within the time limits set forth in 6101.15(f)(2). Otherwise, the matter therein may be deemed to be admitted. Any matter admitted is conclusively established for the purpose of the pending action, unless the Board on motion permits withdrawal or amendment of the admission. Any admission made by a party under this paragraph is for the purpose of the pending action only and is not an admission for any other purpose, nor may it be used against the party in any other proceeding.</P>
          <P>(d) <E T="03">Written requests for production of documents.</E> A written request for the production, inspection, and copying of any documents and things shall be answered within 30 calendar days after service. Objections shall be filed within the time limits set forth in 6101.15(f)(2).</P>
          <P>(e) <E T="03">Change in time for response.</E> Upon request of a party, or on its own initiative, the Board may prescribe a period of time other than that specified in this section.</P>
          <P>(f) <E T="03">Responses.</E> A party that has responded to written interrogatories, requests for admission, or requests for <PRTPAGE P="220"/>production of documents, upon becoming aware of deficiencies or inaccuracies in its original responses, or upon acquiring additional information or additional documents relevant thereto, shall, as quickly as practicable, and as often as necessary, supplement its responses to the requesting party with correct and sufficient additional information and such additional documents as are necessary to give a complete and accurate response to the request.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.18</SECTNO>
          <SUBJECT>Sanctions and other proceedings [Rule 118].</SUBJECT>
          <P>(a) <E T="03">Standards.</E> All parties and their representatives, attorneys, and any expert/consultant retained by them or their attorneys, must obey directions and orders prescribed by the Board and adhere to standards of conduct applicable to such parties and persons. As to an attorney, the standards include the rules of professional conduct and ethics of the jurisdictions in which an attorney is licensed to practice, to the extent that those rules are relevant to conduct affecting the integrity of the Board, its process, and its proceedings. The Board will also look to voluntary professional guidelines in evaluating an individual's conduct.</P>
          <P>(b) <E T="03">Sanctions.</E> When a party or its representative or attorney or any expert/consultant fails to comply with any direction or order issued by the Board (including an order to provide or permit discovery), or engages in misconduct affecting the Board, its process, or its proceedings, the Board may make such orders as are just, including the imposition of appropriate sanctions. The sanctions include:</P>
          <P>(1) Taking the facts pertaining to the matter in dispute to be established for the purpose of the case in accordance with the contention of the party submitting the discovery request;</P>
          <P>(2) Forbidding challenge of the accuracy of any evidence;</P>
          <P>(3) Refusing to allow the disobedient party to support or oppose designated claims or defenses;</P>
          <P>(4) Prohibiting the disobedient party from introducing in evidence designated documents or items of testimony;</P>
          <P>(5) Striking pleadings or parts thereof, or staying further proceedings until the order is obeyed;</P>
          <P>(6) Dismissing the case or any part thereof;</P>
          <P>(7) Enforcing the protective order and disciplining individuals subject to such other violation thereof, including disqualifying a party's representative, attorney, or expert/consultant from further participation in the case; or</P>
          <P>(8) Imposing such other sanctions as the Board deems appropriate.</P>
          <P>(c) <E T="03">Denial of access to protected material for prior violations of protective orders.</E> The Board may in its discretion deny access to protected material to any person found to have previously violated the Board's protective order.</P>
          <P>(d) <E T="03">Disciplinary proceedings.</E> (1) In addition to the other procedures in this section, the Board may discipline individual party representatives, attorneys, and experts/consultants for a violation of any Board order or direction or standard of conduct applicable to such individual where the violation seriously affects the integrity of the Board's process or proceedings. Sanctions may be public or private, and may include admonishment, disqualification from a particular matter, referral to an appropriate licensing authority, or such other action as circumstances may warrant.</P>
          <P>(2) The Board in its discretion may suspend an individual from appearing before the Board as a party representative, attorney, or expert/consultant if, after affording such individual notice and an opportunity to be heard, a majority of the members of the full Board determines such a sanction is warranted.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.19</SECTNO>
          <SUBJECT>Hearings: scheduling; notice; unexcused absences [Rule 119].</SUBJECT>
          <P>(a) <E T="03">Scheduling of hearings.</E> Hearings will be held at the time and place ordered by the Board and will be scheduled at the discretion of the Board. In scheduling hearings, the Board will consider the requirements of this part and part 6102, the need for orderly management of the Board's caseload, and the stated desires of the parties as expressed in their elections filed pursuant to 6101.9 or otherwise. The time or <PRTPAGE P="221"/>place for hearing may be changed by the Board at any time.</P>
          <P>(b) <E T="03">Notice of hearing.</E> Notice of hearing will be by written order of the Board. Notice of changes in the hearing schedule will also be by written order when practicable but may be oral in exigent circumstances. Except as the Board may otherwise order, each party that plans to attend the hearing shall, within 10 working days of receipt of:</P>
          <P>(1) A written notice of hearing or</P>
          <P>(2) Any notice of a change in hearing schedule stating that an acknowledgment is required, notify the Board in writing that it will attend the hearing.</P>
          <P>(c) <E T="03">Unexcused absence from hearing.</E> In the event of the unexcused absence of a party from a hearing, the hearing will proceed, and the absent party will be deemed to have elected to submit its case on the record pursuant to 6101.11.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.20</SECTNO>
          <SUBJECT>Subpoenas [Rule 120].</SUBJECT>
          <P>(a) <E T="03">Voluntary cooperation in lieu of subpoena.</E> Each party is expected to:</P>
          <P>(1) Cooperate by making available witnesses and evidence under its control, when requested by another party, without issuance of a subpoena; and</P>
          <P>(2) Secure voluntary attendance of third-party witnesses and production of evidence by third parties, and when practicable, without issuance of a subpoena.</P>
          <P>(b) <E T="03">General.</E> Upon the written request of any party filed with the Office of the Clerk of the Board, or on the initiative of a judge, a subpoena may be issued that commands the person to whom it is directed to:</P>
          <P>(1) Attend and give testimony at a deposition in a city or county where that person resides or is employed or transacts business in person, or at another location convenient to that person that is specifically determined by the Board;</P>
          <P>(2) Attend and give testimony at a hearing; and</P>
          <P>(3) Produce the books, papers, documents, and other tangible things designated in the subpoena.</P>
          <P>(c) <E T="03">Request for subpoena.</E> A request for a subpoena shall state the reasonable scope and general relevance to the case of the testimony and of any documentary evidence sought. A request for a subpoena shall be filed at least 15 calendar days before the testimony of a witness or documentary evidence is to be provided. The Board may, in its discretion, honor requests for subpoenas not made within this time limitation.</P>
          <P>(d) <E T="03">Form; issuance.</E> Every subpoena shall be in the form specified in the appendix to this part and part 6102. Unless a party has the approval of a judge to submit a subpoena in blank (in whole or in part), a party shall submit to the judge a completed subpoena (save the “Return on Service” portion). In issuing a subpoena to a requesting party, the judge shall sign the subpoena. The party to whom the subpoena is issued shall complete the subpoena before service.</P>
          <P>(2) If the person subpoenaed is located in a foreign country, a letter rotatory or a subpoena may be issued and served under the circumstances and in the manner provided in 28 U.S.C. 1781-1784.</P>
          <P>(e) <E T="03">Service.</E> (1) The party requesting a subpoena shall arrange for service. Service shall be made as soon as practicable after the subpoena has been issued.</P>
          <P>(2) A subpoena requiring the attendance of a witness at a deposition or hearing may be served at any place. A subpoena may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by personal delivery of a copy to that person and tender of the fees for one day's attendance and the mileage allowed by 28 U.S.C. 1821 or other applicable law; however, where the subpoena is issued on behalf of the Government, money payments need not be tendered in advance of attendance.</P>
          <P>(f) <E T="03">Proof of service.</E> The person serving the subpoena shall make proof of service thereof to the Board promptly and in any event before the date on which the person served must respond to the subpoena. Proof of service shall be made by completion and execution and submission to the Board of the “Return on Service” portion of a duplicate copy of the subpoena issued by a judge. If service is made by a person other than a United States marshal or his deputy, that person shall make an affidavit as <PRTPAGE P="222"/>proof by executing the “Return on Service” in the presence of a notary.</P>
          <P>(g) <E T="03">Motion to quash or to modify.</E> Upon written motion by the person subpoenaed or by a party, made within 14 calendar days after service, but in any event not later than the time specified in the subpoena for compliance, the Board may</P>
          <P>(1) Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown, or</P>
          <P>(2) Require the party in whose behalf the subpoena was issued to advance the reasonable cost of producing subpoenaed documentary evidence. Where circumstances require, the Board may act upon such a motion at any time after a copy has been served upon opposing parties.</P>
          <P>(h) <E T="03">Contumacy or refusal to obey a subpoena.</E> In a case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of a United States district court, the Board shall apply to the court through the Attorney General of the United States for an order requiring the person to appear before the board to give testimony, produce evidence or both. If a person fails to obey such an order, the court may punish that person for contempt of court.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.21</SECTNO>
          <SUBJECT>Hearing procedures [Rule 121].</SUBJECT>
          <P>(a) <E T="03">Nature and conduct of hearings.</E> Except when necessary to maintain the confidentiality of protected material or testimony, or material submitted <E T="03">in camera,</E> all hearings on the merits of cases shall be open to the public and conducted insofar as is convenient in regular hearing rooms. All other acts or proceedings may be done or conducted by the Board either in its offices or at other places.</P>
          <P>(b) <E T="03">Continuances; change of location.</E> Whenever practicable, a hearing will be conducted in one continuous session or a series of consecutive sessions at a single location. However, the Board may at any time continue the hearing to a future date and may arrange to conduct the hearing in more than one location. The Board may also continue a hearing to permit a party to conduct additional discovery on conditions established by the Board. In exercising its discretion to continue a hearing or to change its location, the Board will give due consideration to the same elements (set forth in 6101.19(a)) that it considers in scheduling hearings.</P>
          <P>(c) <E T="03">Availability of witnesses, documents, and other tangible things.</E> It is the responsibility of a party desiring to call any witness, or to use any document or other tangible thing as an exhibit in the course of a hearing, to ensure that whoever it wishes to call and whatever it wishes to use is available at the hearing.</P>
          <P>(d) <E T="03">Enlargement of the record.</E> The Board may at any time during the conduct of a hearing require evidence or argument in addition to that put forth by the parties.</P>
          <P>(e) <E T="03">Examination of witnesses.</E> Witnesses before the Board will testify under oath or affirmation. A party or the Board may obtain an answer from any witness to any question that is not the subject of an objection that the Board sustains.</P>
          <P>(f) <E T="03">Refusal to be sworn.</E> If a person called as a witness refuses to be sworn or to affirm before testifying, the Board may direct that witness to do so and, in the event of continued refusal, the Board may permit the taking of testimony without oath or affirmation. Alternatively, the Board may refuse to permit the examination of that witness, in which event it may state for the record the inferences it draws from the witness's refusal to testify under oath or affirmation. Alternatively, the Board may issue a subpoena to compel that witness to testify under oath or affirmation, and in the event of the witness's continued refusal to swear or affirm, may seek enforcement of that subpoena pursuant to 6101.20(h).</P>
          <P>(g) <E T="03">Refusal to answer.</E> If a witness refuses to answer a question put to him in the course of his testimony, the Board may direct that witness to answer and, in the event of continued refusal, the Board may state for the record the inferences if draws from the refusal to answer. Alternatively, the Board may issue a subpoena to compel that witness to testify and, in the event of the witness's continued refusal to testify, may seek enforcement of that subpoena pursuant to 6101.20(h).<PRTPAGE P="223"/>
          </P>
          <P>(h) <E T="03">Issues not raised by pleadings.</E> If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings, it may nevertheless be admitted by the Board if it is within the proper scope of the case. If such evidence is admitted, the Board may grant the objecting party a continuance to enable it to meet such evidence. If such evidence is admitted, the pleadings may be amended to conform to the evidence, as provided by 6101.12(e).</P>
          <P>(i) <E T="03">Delay by parties.</E> If the Board determines that the hearing is being unreasonably delayed by the failure of a party to produce evidence, or by the undue prolongation of the presentation of evidence, it may, by written order or by ruling from the bench, prescribe a time or times within which the presentation of evidence must be concluded, establish time limits on the direct or cross-examination of witnesses, and enforce such order or ruling by appropriate sanctions.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.22</SECTNO>
          <SUBJECT>Admissibility and weight of evidence [Rule 122].</SUBJECT>
          <P>(a) <E T="03">Admissibility.</E> Any relevant evidence may be received. The Board may exclude relevant evidence to avoid unfair prejudice, confusion of the issues, undue delay, waste of time, or needless presentation of cumulative evidence. Hearsay evidence is admissible unless the Board finds it unreliable or untrustworthy.</P>
          <P>(b) <E T="03">Federal Rules of Evidence.</E> As a general matter, and subject to the other provisions of this section, the Board will base its evidentiary rulings on the Federal Rules of Evidence.</P>
          <P>(c) <E T="03">Weight and credibility.</E> The Board will determine the weight to be given to evidence and the credibility to be accorded witnesses.</P>
          <P>(d) <E T="03">Submission of evidence in camera.</E> 6101.12(h) governs submissions <E T="03">in camera</E>.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.23</SECTNO>
          <SUBJECT>Exhibits [Rule 123].</SUBJECT>
          <P>(a) <E T="03">Marking of exhibits.</E> (1) Documents and other tangible things offered in evidence by a party will be marked for identification by the Board during the hearing or, if it is convenient for the Board and the parties, before the commencement of the hearing. They will be numbered consecutively as the exhibits of the party offering them.</P>
          <P>(2) If a party elects to proceed on the record without a hearing pursuant to 6101.11, documentary evidence submitted by that party will be numbered consecutively by the Board as appeal file exhibits.</P>
          <P>(b) <E T="03">Copies as exhibits.</E> Except upon objection sustained by the Board for good cause shown, copies of documents may be offered and received into evidence as exhibits, provided they are of equal legibility and quality as the originals, and such copies shall have the same force and effect as if they were the originals. If the Board so directs, a party offering a copy of a document as an exhibit shall have the original available at the hearing for examination by the Board and any other party. When the original of a document has been received into evidence as an exhibit, an accurate copy thereof may be substituted in evidence for the original by leave of the Board at any time.</P>
          <P>(c) <E T="03">Withdrawal of documentary exhibits and other papers.</E> With the permission of the Board, a party may remove an exhibit during the course of a proceeding. Otherwise, except as provided in 6101.37(d), no withdrawal of any papers in the Board's file is permitted. Inspection of the file at the Board's offices is permitted by 6101.12(g).</P>
          <P>(d) <E T="03">Disposition of physical exhibits.</E> Any physical (as opposed to documentary) exhibit may be disposed of by the Board at any time more than 90 calendar days after the expiration of the period for appeal from the decision of the Board, unless it has been earlier withdrawn by the party that submitted it.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.24</SECTNO>
          <SUBJECT>Transcripts of proceedings; corrections [Rule 124].</SUBJECT>
          <P>(a) <E T="03">Transcripts</E> Except as the Board may otherwise order, all hearings, other than those under the small claims procedure prescribed by 6102.2, will be stenographically or electronically recorded and transcribed. Any other hearing or conference will be recorded or transcribed only by order of the Board. Copies or transcriptions of stenographic or electronic recordings not ordered to be transcribed by the Board will be furnished to the parties <PRTPAGE P="224"/>or other persons only on conditions prescribed by the Board, which may include the payment of the costs of copying or transcription. Each party is responsible for obtaining its own copy of the transcript if one is prepared.</P>
          <P>(b) <E T="03">Corrections.</E> Corrections to an official transcript will be made only when they involve errors affecting its substance. The Board may order such corrections on motion or on its own initiative, and only after notice to the parties giving them opportunity to object. Such corrections will ordinarily be made either by hand with pen and ink or by the appending of an errata sheet, but when no other method of correction is practicable the Board may require the reporter to provide substitute or additional pages.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.25</SECTNO>
          <SUBJECT>Briefs and memoranda of law [Rule 125].</SUBJECT>
          <P>(a) <E T="03">Form and content of briefs and memoranda of law.</E> Briefs and memoranda of law shall be typewritten on standard size 8<FR>1/2</FR> by 11-inch paper. Otherwise, no particular form or organization is prescribed. Posthearing briefs should, at a minimum, succinctly set forth</P>
          <P>(1) The facts of the case with citations to those places in the record where supporting evidence can be found and</P>
          <P>(2) Argument with citations to supporting legal authorities. Memoranda of law should generally adhere as closely as practicable to the form and content of briefs.</P>
          <P>(b) <E T="03">Submission of posthearing briefs.</E> Except as the Board may otherwise order, posthearing briefs shall be filed 30 calendar days after the Board's receipt of the transcript; reply briefs, if filed, shall be filed 15 calendar days after the parties' receipt of the initial posthearing briefs. The Board will notify the parties of the date of its receipt of the transcript. In the event one party has elected a hearing and the other party has elected to submit its case on the record pursuant to 6101.11, the filing of record submissions in the form of briefs shall be governed by this section.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.26</SECTNO>
          <SUBJECT>Consolidation; separate hearings; separate determination of liability [Rule 126].</SUBJECT>
          <P>(a) <E T="03">Consolidation.</E> When cases involving common questions of law or fact are pending, the Board may:</P>
          <P>(1) Order a joint hearing of any or all of the matters at issue in the cases;</P>
          <P>(2) Order the cases consolidated; or</P>
          <P>(3) Make such other orders concerning the proceedings therein as are intended to avoid unnecessary costs or delay.</P>
          <P>(b) <E T="03">Separate hearings.</E> The Board may order a separate hearing of any case or cases or of any claims or issues or number of claims or issues therein. The Board may enter appropriate orders or decisions with respect to any claims or issues that are heard separately.</P>
          <P>(c) <E T="03">Separate determinations of liability.</E> The Board may:</P>
          <P>(1) Limit a hearing to those issues of law and fact relating to the right of a party to recover, reserving the determination of the amount of recovery, if any, for other proceedings; and</P>
          <P>(2) In its decision of an appeal, irrespective of whether there is evidence in the record concerning the amount of recovery, and whether or not a stipulation or order has been made, reserve determination of the amount of recovery for other proceedings. In any instance in which the Board has reserved its determination of the amount of recovery for other proceedings, its decision on the question of the right to recover shall be final, subject to the provisions of 6101.30 through 6101.33.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.27</SECTNO>
          <SUBJECT>Stay or suspension of proceedings; dismissals in lieu of stay or suspension [Rule 127].</SUBJECT>
          <P>(a) <E T="03">Stay of proceedings to obtain contracting officer's decision.</E> The Board may in its discretion stay proceedings to permit a contracting officer to issue a decision when an appeal has been taken from the contracting officer's alleged failure to render a timely decision.</P>
          <P>(b) <E T="03">Suspension for other cause.</E> The Board may suspend proceedings in a case for good cause. The order suspending proceedings will prescribe the duration of the suspension or the conditions on which it will expire. The order may also prescribe actions to be <PRTPAGE P="225"/>taken by the parties during the period of suspension or following its expiration.</P>
          <P>(c) <E T="03">Dismissal in lieu of stay or suspension.</E> When circumstances beyond the control of the Board prevent the continuation of proceedings in a case, the Board may, in lieu of issuing an order suspending proceedings, dismiss the case without prejudice to reinstatement. Such a dismissal may require reinstatement by a date certain or within a certain period of time after the occurrence of a specified event. If the order of dismissal does not otherwise provide, it will be subject to the provisions of 6101.28(b).</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.28</SECTNO>
          <SUBJECT>Dismissals [Rule 128].</SUBJECT>
          <P>(a) <E T="03">Generally.</E> A case may be dismissed by the Board on motion of either party. A case may also be dismissed for reasons cited by the Board in a show cause order to which response has been permitted. Every dismissal shall be with prejudice to reinstatement of the case unless a dismissal without prejudice has been requested by a party or specified in a show cause order.</P>
          <P>(b) <E T="03">Dismissal without prejudice.</E> When a case has been dismissed without prejudice to its reinstatement and neither party has requested, within the period of time specified in this paragraph, that the case be reinstated, the case shall be deemed to have been dismissed with prejudice as of the expiration of 180 calendar days from the date of dismissal, or such other period as the Board may prescribe.</P>
          <P>(c) <E T="03">Issuance of order.</E> An order of dismissal shall be issued by the panel of judges to which the case has been assigned if the motion is contested or if the Board is acting consequent to its own show cause order. An order of dismissal may be issued by the panel chairman alone if the motion to dismiss is not contested.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.29</SECTNO>
          <SUBJECT>Decisions: format; procedure [Rule 129].</SUBJECT>
          <P>Except as provided in 6102.2 (small claims procedure), decisions of the Board will be made in writing upon the record as prescribed in 6101.12. Each of the parties will be furnished a copy of the decision certified by the Office of the Clerk of the Board, and the date of the receipt thereof by each party will be established in the record.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.30</SECTNO>
          <SUBJECT>Full Board consideration [Rule 130].</SUBJECT>
          <P>(a) <E T="03">Requests.</E> (1) A request for full Board consideration is not favored. Ordinarily, full Board consideration will be ordered only when</P>
          <P>(i) It is necessary to secure or maintain uniformity of Board decisions, or</P>
          <P>(ii) The matter to be referred is one of exceptional importance.</P>
          <P>(2) A request for full Board consideration may be made by either party on any date which is both</P>
          <P>(i) After the panel to which the case is assigned has issued its decision on a motion for reconsideration or relief from decision and</P>
          <P>(ii) Within 10 working days after the date on which that party receives that decision. Any party making a request for full Board consideration shall state concisely in the motion the precise grounds on which the request is based.</P>
          <P>(3) The full Board on its own may initiate consideration of a matter</P>
          <P>(i) At any time while the case is before the Board,</P>
          <P>(ii) No later than the last date on which any party may file a motion for reconsideration or relief from decision or order, or</P>
          <P>(iii) If such a motion is filed by a party, within ten days after a panel has resolved it.</P>
          <P>(b) <E T="03">Consideration.</E> Promptly after such a request is made, a ballot will be taken among the judges; if a majority of them favors the request, the request will be granted. The result of the vote will promptly be reported by the Board through an order. The concurring or dissenting view of any judge who wishes to express such a view may issue at the time of such order or at any time thereafter.</P>
          <P>(c) <E T="03">Decisions.</E> If full Board consideration is granted, a vote shall be taken promptly on the pending matter. After this vote is taken, the Board shall promptly, by order, issue its determination, which shall include the concurring or dissenting view of any judge who wishes to express such a view.</P>
        </SECTION>
        <SECTION>
          <PRTPAGE P="226"/>
          <SECTNO>6101.31</SECTNO>
          <SUBJECT>Clerical mistakes [Rule 131].</SUBJECT>
          <P>Clerical mistakes in decisions, orders, or other parts of the record, and errors arising therein through oversight or inadvertence, may be corrected by the Board at any time on its own initiative or upon motion of a party on such terms, if any, as the Board may prescribe. During the pendency of an appeal to another tribunal, such mistakes may be corrected only with leave of the appellate tribunal.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.32</SECTNO>
          <SUBJECT>Reconsideration; amendment of decisions; new hearings [Rule 132].</SUBJECT>
          <P>(a) <E T="03">Grounds.</E> Reconsideration may be granted, a decision or order may be altered or amended, or a new hearing may be granted, for any of the reasons stated in 6101.33(a) and the reasons established by the rules of common law or equity applicable as between private parties in the courts of the United States. Reconsideration, or a new hearing, may be granted on all or any of the issues. Arguments already made and reinterpretations of old evidence are not sufficient grounds for granting reconsideration. On granting a motion for a new hearing, the Board may open the decision if one has been issued, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions and direct the entry of a new decision.</P>
          <P>(b) <E T="03">Procedure.</E> (1) Any motion under this section shall comply with the provisions of 6101.8 and shall set forth:</P>
          <P>(i) The reason or reasons why the Board should consider the motion; and</P>
          <P>(ii) The relief sought and the grounds therefor.</P>
          <P>(2) If the Board concludes that the reasons asserted for its consideration of the motion are insufficient, it may deny the motion without considering the relief sought and the grounds asserted therefor. If the Board grants the motion, it will issue an appropriate order which may include directions to the parties for further proceedings.</P>
          <P>(c) <E T="03">Time for filing.</E> A motion for reconsideration, to alter or amend a decision or order, or for a new hearing shall be filed in an appeal or petition within 30 calendar days and in an application within 7 working days after the date of receipt by the moving party of the decision or order. Not later than 30 calendar days after issuance of a decision or order, the Board may, on its own initiative, order reconsideration or a new hearing or alter or amend a decision or order for any reason that would justify such action on motion of a party.</P>
          <P>(d) <E T="03">Effect of motion.</E> A motion pending under this section does not affect the finality of a decision or suspend its operation.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.33</SECTNO>
          <SUBJECT>Relief from decision or order [Rule 133].</SUBJECT>
          <P>(a) <E T="03">Grounds.</E> The Board may relieve a party from the operation of a final decision or order for any of the following reasons:</P>
          <P>(1) Newly discovered evidence which could not have been earlier discovered, even through due diligence;</P>
          <P>(2) Justifiable or excusable mistake, inadvertence, surprise, or neglect;</P>
          <P>(3) Fraud, misrepresentation, or other misconduct of an adverse party;</P>
          <P>(4) The decision has been satisfied, released, or discharged, or a prior decision upon which it is based has been reversed or otherwise vacated, and it is no longer equitable that the decision should have prospective application;</P>
          <P>(5) The decision is void, whether for lack of jurisdiction or otherwise; or</P>
          <P>(6) Any other ground justifying relief from the operation of the decision or order.</P>
          <P>(b) <E T="03">Procedure.</E> Any motion under this section shall comply with the provisions of 6101.8 and 6101.32(b), and will be considered and ruled upon by the Board as provided in 6101.32.</P>
          <P>(c) <E T="03">Time for filing.</E> Any motion under this section shall be filed as soon as practicable after the discovery of the reasons therefor, but in any event no later than 120 calendar days or, in appeals under the small claims procedure of 6102.2, no later than 30 calendar days after the date of the moving party's receipt of the decision or order from which relief is sought. In considering the timeliness of a motion filed under this section, the Board may consider when the grounds therefor should reasonably have been known to the moving party.</P>
          <P>(d) <E T="03">Effect of motion.</E> A motion pending under this section does not affect the <PRTPAGE P="227"/>finality of a decision or suspend its operation.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.34</SECTNO>
          <SUBJECT>Harmless error [Rule 134].</SUBJECT>
          <P>No error in the admission or exclusion of evidence, and no error or defect in any ruling, order, or decision of the Board, and no other error in anything done or omitted to be done by the Board will be a ground for granting a new hearing or for vacating, reconsidering, modifying, or otherwise disturbing a decision or order of the Board unless refusal to act upon such error will prejudice a party or work a substantial injustice. At every stage of the proceedings the Board will disregard any error or defect that does not affect the substantial rights of the parties.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.35</SECTNO>
          <SUBJECT>Award of costs [Rule 135].</SUBJECT>
          <P>(a) <E T="03">Applications for costs.</E> An appropriate party in a proceeding before the Board may apply for an award of costs, including if applicable an award of attorney fees, under the Equal Access to Justice Act, 5 U.S.C. 504, or any other provision that may entitle that party to such an award, subsequent to the Board's decision in the proceeding. For purposes of this section, “decision” includes orders of dismissal resulting from settlement agreements that bring to an end the proceedings before the Board.</P>
          <P>(b) <E T="03">Time for filing.</E> A party seeking an award may submit an application no later than 30 calendar days after a final disposition in the underlying appeal. In the case of an appeal that is adjudicated, the Board's decision becomes final (for purposes of this section) when it is not appealed to the United States Court of Appeals for the Federal Circuit within the time permitted for appeal or, if the decision is appealed, when the time for petitioning the Supreme Court for certiorari has expired. In the case of an appeal that is resolved as a result of settlement, the Board's disposition becomes final (for purposes of this section) after receipt by the applicant of the order granting or dismissing the appeal.</P>
          <P>(c) <E T="03">Application requirements.</E> An application for costs shall:</P>
          <P>(1) Identify the applicant and the appeal for which costs are sought, and the amount being sought;</P>
          <P>(2) Establish that all applicable prerequisites for an award have been satisfied, including a succinct statement of why the applicant is eligible for an award of costs;</P>
          <P>(3) Be accompanied by an exhibit fully documenting any fees or expenses being sought, including the cost of any study, analysis, engineering report, test, project, or similar matter. The date and a description of all services rendered or costs incurred shall be submitted for each profession firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the particular services performed by specific date, the rate at which each fee has been computed, any expenses for which reimbursement is sought, and the total amount paid or payable by the applicant on account of the sought-after costs. Except in exceptional circumstances, all exhibits supporting applications for fees or expenses sought shall be publicly available. The Board may require the applicant to provide vouchers, receipts, or other substantiation for any costs claimed and/or to submit to an audit by the Government of the claimed costs;</P>
          <P>(4) Be signed by the applicant or an authorized officer, employee, or attorney of the applicant;</P>
          <P>(5) Contain or be accompanied by a written verification under oath or affirmation, or declaration under penalty of perjury, that the information provided in the application is true and correct;</P>
          <P>(6) If the applicant asserts that it is a qualifying small business concern, contain evidence thereof; and</P>
          <P>(7) If the application requests reimbursement of attorney fees that exceed the statutory rate, explain why an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies such fees.</P>
          <P>(d) <E T="03">Proceedings.</E> (1) Within 30 calendar days after receipt by the respondent of an application under this section, the respondent may file an answer. The answer shall explain in detail any objects to the award requested and set out the legal and factual bases supporting the <PRTPAGE P="228"/>respondent's position. If the respondent contends that any fees for consultants or expert witnesses for which reimbursement is sought in the application exceed the highest rate of compensation for expert witnesses paid by the agency, the respondent shall include in the answer evidence of such highest rate.</P>
          <P>(2) Further proceedings shall be held only by order of the Board and only when necessary for full and fair resolution of the issues arising from the application. Such proceedings shall be minimized to the extent possible and shall not include relitigation of the case on the merits. A request that the Board order further proceedings under this section shall describe the disputed issues and explain why additional proceedings are necessary to resolve those issues.</P>
          <P>(e) <E T="03">Decision.</E> Any award ordered by the Board shall be paid pursuant to 6101.36.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.36</SECTNO>
          <SUBJECT>Payment of Board awards [Rule 136].</SUBJECT>
          <P>(a) <E T="03">Generally.</E> When permitted by law, payment of Board awards may be made in accordance with 31 U.S.C. 1304. Awards by the Board pursuant to the Equal Access to Justice Act shall be directly payable by the respondent agency over which the applicant has prevailed in the underlying appeal.</P>
          <P>(b) <E T="03">Conditions for payment.</E> Before a party may obtain payment of a Board award pursuant to 31 U.S.C. 1304, one of the following must occur:</P>
          <P>(1) Both parties must, by execution of a Certificate of Finality, waive their rights to relief under 6101.32 and 6101.33 and also their rights to appeal the decision of the Board; or</P>
          <P>(2) The time for filing an appeal must expire.</P>
          <P>(c) <E T="03">Procedure for filing of certificates of finality</E>. Whenever the Board issues a decision or an order awarding a party any amount of money, it will attach to the copy of the decision sent to each party forms such as those illustrated in the appendix to this part. The conditions for payment prescribed in paragraph (b)(1) of this section are satisfied if each of the parties returns a completed and duly executed copy of this form to the Board. When the form is executed on behalf of an appellant or applicant by an attorney or other representative, proof of signatory authority shall also be furnished. Upon receipt of completed and duly executed Certificates of Finality from the parties, the Board will forward a copy of each such certificate (together with proof of signatory authority, if required) and a certified copy of its decision to the responsible agency for certification and transmission to the United States Department of the Treasury for payment.</P>
          <P>(d) <E T="03">Procedure in absence of certificate of finality</E>. When one or both of the parties fails to submit a duly executed Certificate of Finality, but the conditions for payment have been satisfied as provided in paragraph (b)(2) of this section, the appellant or applicant may file a written request that the Board forward its decision to the responsible agency for certification and transmission to the United States Department of the Treasury for payment. Thereupon, the Board will forward a copy of that request and a certified copy of its decision to the responsible agency.</P>
          <P>(e) <E T="03">Stipulated award.</E> When an appeal is settled, the parties may file with the Board a stipulation setting forth the amount of the award and stating</P>
          <P>(1) That they will not seek reconsideration of, or relief from, the Board's decision, and</P>
          <P>(2) That they will not appeal the decision. The Board will adopt the parties' stipulation by decision. The Board's decision under this paragraph is an adjudication of the case on the merits.</P>
          <CITA>[61 FR 52349, Oct. 7, 1996, as amended at 70 FR 48883, Aug. 22, 2005]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6101.37</SECTNO>
          <SUBJECT>Record on review of a Board decision [Rule 137].</SUBJECT>
          <P>(a) <E T="03">Record on review.</E> When a party has appealed a Board decision to the United States Court of Appeals for the Federal Circuit, the record on review shall consist of the decision sought to be reviewed, the record before the Board as described in 6101.12, and such other material as may be required by the Court of Appeals.</P>
          <P>(b) <E T="03">Notice.</E> At the same time a party seeking review of a Board decision files <PRTPAGE P="229"/>a notice of appeal, that party shall provide a copy of the notice to the Board.</P>
          <P>(c) <E T="03">Filing of certified list of record materials.</E> Promptly after service upon the Board of a copy of the notice of appeal of a Board decision, the Office of the Clerk of the Board shall file with the Clerk of the United States Court of Appeals for the Federal Circuit a certified list of all documents, transcripts of testimony, exhibits, and other materials constituting the record, or a list of such parts thereof as the parties may designate, adequately describing each. The Board will retain the record and transmit any part thereof to the Court upon the Court's order during the pendency of the appeal.</P>
          <P>(d) <E T="03">Request by attorney of record to review record.</E> When a case is on appeal, an attorney of record may request permission from the Board to sign out the record on appeal to review and copy, for a reasonable period of time, if the attorney is unable to gain access to the record from another source.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.38</SECTNO>
          <SUBJECT>Office of the Clerk of the Board [Rule 138].</SUBJECT>
          <P>(a) <E T="03">Open for the filing of papers.</E> The Office of the Clerk of the Board shall receive all papers submitted for filing, and shall be open for this purpose from 8:00 a.m. to 4:30 p.m., Eastern Time, on each day that is not a Saturday, Sunday, federal holiday, a day on which the Office is required to close earlier than 4:30 p.m., or a day on which the Office does not open at all, as in the case of inclement weather.</P>
          <P>(b) <E T="03">Decisions and orders.</E> The Office of the Clerk shall keep in such form and manner as the Board may prescribe a correct copy of each decision or order of the Board subject to review and any other order or decision which the Board may direct to be kept.</P>
          <P>(c) <E T="03">Docket.</E> The Office of the Clerk shall keep a docket on which shall be entered the title and nature of all cases brought before the Board, the names of the persons filing such cases, the names of the attorneys or other persons appearing for the parties, and a record of all proceedings.</P>
          <P>(d) <E T="03">Copies and certification of papers.</E> Upon the request of any person, copies of papers and documents in a case may be provided by the Office of the Clerk. If making such copies involves more than minimal costs to the Board, reimbursement will be required. When required, the Office of the Clerk will certify copies of papers and documents as a true record of the Board. Except as provided in 6101.23(c) and 6101.37(d), the Office of the Clerk will not release original records in its possession to any person.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.39</SECTNO>
          <SUBJECT>Seal of the Board [Rule 139].</SUBJECT>
          <P>The Seal of the Board shall be a circular boss, the center portion of which shall depict the Seal of the General Services Administration. The outer margin of the seal shall bear the legend “Board of Contract Appeals.” The Seal shall be the means of authentication of all records, notices, orders, dismissals, opinions, subpoenas, and certificates issued by the Board.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6101.40</SECTNO>
          <SUBJECT>Forms [Rule 140].</SUBJECT>
          <P>The forms contained in the appendix to this part and part 6102 are sufficient under these parts and are intended to indicate the simplicity and brevity of statement which the rules in those parts contemplate. The subpoena form is a required form, and it may not be altered.</P>
        </SECTION>
        <APPENDIX>
          <EAR>Pt. 6101, App.</EAR>
          <HD SOURCE="HED">Appendix to Part 6101—Form Nos. 1-5</HD>
          <FP SOURCE="FP-2">Form 1—Notice of Appeal, GSA Form 2465</FP>
          <FP SOURCE="FP-2">Form 2—Notice of Appearance</FP>
          <FP SOURCE="FP-2">Form 3—Subpoena, GSA Form 9534</FP>
          <FP SOURCE="FP-2">Form 4—Government Certificate of Finality</FP>
          <FP SOURCE="FP-2">Form 5—Appellant/Applicant Certificate of Finality</FP>
          <GPH DEEP="455" SPAN="2">
            <PRTPAGE P="230"/>
            <GID>ER07oc96.000</GID>
          </GPH>
          <GPH DEEP="460" SPAN="2">
            <PRTPAGE P="231"/>
            <GID>ER07oc96.001</GID>
          </GPH>
          <GPH DEEP="470" SPAN="2">
            <PRTPAGE P="232"/>
            <GID>ER07oc96.002</GID>
          </GPH>
          <GPH DEEP="365" SPAN="2">
            <PRTPAGE P="233"/>
            <GID>ER07oc96.003</GID>
          </GPH>
          <GPH DEEP="445" SPAN="2">
            <PRTPAGE P="234"/>
            <GID>ER07oc96.004</GID>
          </GPH>
          <GPH DEEP="442" SPAN="2">
            <PRTPAGE P="235"/>
            <GID>ER07oc96.005</GID>
          </GPH>
        </APPENDIX>
      </PART>
      <PART>
        <PRTPAGE P="236"/>
        <EAR>Pt. 6102</EAR>
        <HD SOURCE="HED">PART 6102—RULES OF PROCEDURE OF THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS (EXPEDITED PROCEEDINGS)</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6102.1</SECTNO>
          <SUBJECT>Variation from standard proceedings [Rule 201].</SUBJECT>
          <SECTNO>6102.2</SECTNO>
          <SUBJECT>Small claims procedure [Rule 202].</SUBJECT>
          <SECTNO>6102.3</SECTNO>
          <SUBJECT>Accelerated procedure [Rule 203].</SUBJECT>
          <SECTNO>6102.4</SECTNO>
          <SUBJECT>Alternative dispute resolution [Rule 204].</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>41 U.S.C. 601-613.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>61 FR 52369, Oct. 7, 1996, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6102.1</SECTNO>
          <SUBJECT>Variation from standard proceedings [Rule 201].</SUBJECT>
          <P>The ultimate purpose of any Board proceeding is to resolve fairly and expeditiously any dispute properly before the Board. When, during the normal course of a Board proceeding, the parties agree that a change in established procedure will promote this end, the Board will make that change if it is deemed to be feasible and in the best interest of the parties, the Board, and the resolution of contract disputes. The following are examples of these changes:</P>
          <P>(a) Establishing an expedited schedule of proceedings, such as by limiting the times provided in part 6101 of this chapter for various filings, to facilitate a prompt resolution of the case;</P>
          <P>(b) Developing a record and rendering a decision on the issue of entitlement prior to reviewing the issue of quantum in a party's claim;</P>
          <P>(c) Developing a record and rendering a decision on any legal or factual issue in advance of others when that issue is deemed critical to resolving the case or effecting a settlement of any items in dispute; and</P>
          <P>(d) Developing a record regarding relevant facts through an on-the-record round-table discussion with sworn witnesses, counsel, and the panel chairman rather than through formal direct and cross-examination of each of these same witnesses. This discussion shall be controlled by the panel chairman. It may be conducted, for example, through the presentation of narrative statements of witnesses or on an issue by issue basis. The panel chairman may also request that the parties' counsel or representatives present opening and/or closing statements in lieu of written briefs.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6102.2</SECTNO>
          <SUBJECT>Small claims procedure [Rule 202].</SUBJECT>
          <P>(a) <E T="03">Election.</E> (1) The small claims procedure is available solely at the appellant's election, and only when there is a monetary amount in dispute and that amount is $50,000 or less. Such election shall be made no later than 30 calendar days after the appellant's receipt of the agency answer, unless the panel chairman enlarges the time for good cause shown.</P>
          <P>(2) At the request of the Government, or on its own initiative, the Board may determine whether the amount in dispute is greater than $50,000, such that the election is inappropriate. The Government shall raise any objection to the election no later than 10 working days after receipt of a notice of election.</P>
          <P>(b) <E T="03">Decision.</E> The panel chairman may issue a decision, which may be in summary form, orally or in writing. A decision which is issued orally shall be reduced to writing; however, such a decision takes effect at the time it is rendered, prior to being reduced to writing. A decision shall be final and conclusive and shall not be set aside except in case of fraud. A decision shall have no value as precedent.</P>
          <P>(c) <E T="03">Procedure.</E> Promptly after receipt of the appellant's election of the small claims procedure, the Board shall establish a schedule of proceedings that will allow for the timely resolution of the appeal. Pleadings, discovery, and other prehearing activities may be restricted or eliminated.</P>
          <P>(d) <E T="03">Time of decision.</E> Whenever possible, the panel chairman shall resolve an appeal under this procedure within 120 calendar days from the Board's receipt of the election. The time for processing an appeal under this procedure may be extended if the appellant has not adhered to the established schedule. Either party's failure to abide by the Board's schedule may result in the Board drawing evidentiary inference adverse to the party at fault.</P>
        </SECTION>
        <SECTION>
          <PRTPAGE P="237"/>
          <SECTNO>6102.3</SECTNO>
          <SUBJECT>Accelerated procedure [Rule 203].</SUBJECT>
          <P>(a) <E T="03">Election.</E> (1) The accelerated procedure is available solely at the appellant's election, and only when there is a monetary amount in dispute and that amount is $100,000 or less. Such election shall be made no later than 30 calendar days after the appellant's receipt of the agency answer, unless the panel chairman enlarges the time for good cause shown.</P>
          <P>(2) At the request of the Government, or on its own initiative, the Board may determine whether the amount in dispute is greater than $100,000, such that the election is inappropriate. The Government shall raise any objection to the election no later than 10 working days after receipt of a notice of election.</P>
          <P>(b) <E T="03">Decision.</E> Each decision shall be rendered by the panel chairman with the concurrence of one of the other judges assigned to the panel; in the event the two judges disagree, the third judge assigned to the panel will participate in the decision.</P>
          <P>(c) <E T="03">Procedure.</E> Promptly after receipt of the appellant's election of the accelerated procedure, the Board shall establish a schedule of proceedings that will allow for the timely resolution of the appeal. Pleadings may be simplified, and discovery and other prehearing activities may be restricted or eliminated.</P>
          <P>(d) <E T="03">Time of decision.</E> Whenever possible, the panel chairman shall resolve an appeal under this procedure within 180 calendar days from the Board's receipt of the election. The time for processing an appeal under this procedure may be extended if the appellant has not adhered to the established schedule. Either party's failure to abide by the Board's schedule may result in the Board drawing evidentiary inferences adverse to the party at fault.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6102.4</SECTNO>
          <SUBJECT>Alternative dispute resolution [Rule 204].</SUBJECT>
          <P>(a) <E T="03">Availability of ADR procedures.</E> The Board will make its services available for ADR proceedings in contract and procurement matters involving any agency, regardless of whether the agency uses the Board to resolve its Contract Disputes Act appeals.</P>
          <P>(1) <E T="03">ADR subsequent to docketing of case at the Board.</E> Parties are encouraged to consider the feasibility of using ADR as soon as their case is docketed. If, however, at any time during the course of a Board proceeding, the parties agree that their dispute may be resolved through the use of an ADR technique, the panel chairman may suspend proceedings for a reasonable period of time while the parties and the Board attempt to resolve the dispute in this manner. The use of an ADR technique will not toll any relevant statutory time limit for deciding the case.</P>
          <P>(2) <E T="03">Other ADR.</E> Upon request, the Board will make a Board Neutral available for an ADR proceeding involving any agency in any contract or procurement matter at any stage of a procurement, even if no contracting officer decision has been issued or is contemplated. To initiate an ADR proceeding, the parties shall jointly request the ADR in writing and direct such request to the Office of the Clerk of the Board. For agencies other than GSA, the Board will provide ADR services on a reimbursable basis.</P>
          <P>(b) <E T="03">Conduct of ADR</E>—(1) <E T="03">Selection of Board Neutral.</E> If ADR is agreed to by the parties and the Board, the parties may request the appointment of one or more Board judges to act as a Board Neutral or Neutrals. The parties may request that the Board's chairman appoint a particular judge or judges as the Board Neutral, or ask the Board's chairman to appoint any judge or judges as the Neutral. If, when ADR has been requested for a case that has already been docketed with the Board, as provided in paragraph (a)(1) of this section, the parties may request that the panel chairman serve as the Board Neutral. In such a situation, if the ADR is unsuccessful,</P>
          <P>(i) If the ADR has involved mediation, the panel chairman shall not retain the case, and</P>
          <P>(ii) If the ADR has not involved mediation, the panel chairman, after considering the parties' views, shall decide whether to retain the case.</P>
          <P>(2) <E T="03">Retention and confidentiality of materials.</E> The Board will review materials submitted by a party for an ADR proceeding, but will not retain such materials after the proceeding is concluded <PRTPAGE P="238"/>or otherwise terminated. Material created by a party for the purpose of an ADR proceeding is to be used solely for that proceeding unless the parties agree otherwise. Parties may request a protective order in an ADR proceeding in the manner provided in 6101.12(h).</P>
          <P>(c) <E T="03">Types of ADR.</E> ADR is not defined by any single procedure or set of procedures. The Board will consider the use of any technique proposed by the parties which is deemed to be fair, reasonable, and in the best interest of the parties, the Board, and the resolution of contract disputes. The following are examples of available techniques:</P>
          <P>(1) <E T="03">Mediation.</E> The Board Neutral, as mediator, aids the parties in settling their case. The mediator engages in <E T="03">ex parte</E> discussions with the parties and facilitates the transmission of settlement offers. Although not authorized to render a decision in the dispute, the mediator may discuss with the parties, on a confidential basis, the strengths and weaknesses of their positions. No judge who has participated in discussions about the mediation will participate in a Board decision of the case if the ADR is unsuccessful.</P>
          <P>(2) <E T="03">Neutral case evaluation.</E> The parties agree to present to the Board Neutral information on which the Board Neutral bases a non-binding, oral, advisory opinion. The manner in which the information is presented will vary from case to case depending upon the agreement of the parties. Presentations generally fall between two extremes, ranging from an informal proffer of evidence together with limited argument from the parties to a more formal presentation of oral and documentary evidence and argument from counsel, such as through a mini-trial.</P>
          <P>(3) <E T="03">Binding decision.</E> One or more Board judges render a decision which, by prior agreement of the parties, is to be binding and non-appealable. As in the non-binding evaluation of a case by a Board Neutral, the manner in which information is presented for a binding decision may vary depending on the circumstances of the particular case.</P>
          <P>(4) <E T="03">Other procedures.</E> In addition to other ADR techniques, including modifications to those listed in this section, as agreed to by the Board and parties, the parties may use ADR techniques that do not require direct Board involvement.</P>
          <P>(5) <E T="03">Selective use of standard procedures.</E> Parties considering the use of ADR are encouraged to adapt for their purposes any provisions in part 6101 which they believe will be useful. This includes but is not limited to provisions concerning record submittals, pretrial discovery procedures, and hearings.</P>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 6103</EAR>
        <HD SOURCE="HED">PART 6103—RULES OF PROCEDURE FOR TRANSPORTATION RATE CASES</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6103.1</SECTNO>
          <SUBJECT>Scope [Rule 301].</SUBJECT>
          <SECTNO>6103.2</SECTNO>
          <SUBJECT>Filing claims [Rule 302].</SUBJECT>
          <SECTNO>6103.3</SECTNO>
          <SUBJECT>Responses to claims [Rule 303].</SUBJECT>
          <SECTNO>6103.4</SECTNO>
          <SUBJECT>Reply to Audit Division and agency responses [Rule 304].</SUBJECT>
          <SECTNO>6103.5</SECTNO>
          <SUBJECT>Proceedings [Rule 305].</SUBJECT>
          <SECTNO>6103.6</SECTNO>
          <SUBJECT>Decisions [Rule 306].</SUBJECT>
          <SECTNO>6103.7</SECTNO>
          <SUBJECT>Reconsideration of Board decision [Rule 307].</SUBJECT>
          <SECTNO>6103.8</SECTNO>
          <SUBJECT>Payment of successful claims [Rule 308].</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>31 U.S.C. 3726(g)(1); 41 U.S.C. 601-613; Sec. 202(o), Pub. L. 104-316, 110 Stat. 3826.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>62 FR 25867, May 12, 1997, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6103.1</SECTNO>
          <SUBJECT>Scope [Rule 301].</SUBJECT>
          <P>(a) <E T="03">Authority.</E> Section 202(o) of the General Accounting Office Act of 1996, Public Law 104-316, transfers certain functions of the Comptroller General contained in 31 U.S.C. 3726(g)(1) to the Administrator of General Services, who has redelegated those functions to the General Services Administration Board of Contract Appeals.</P>
          <P>(b) <E T="03">Type of claim; review of claim.</E> These procedures are applicable to the review of claims made by a carrier or freight forwarder pursuant to 31 U.S.C. 3726(g)(1). The Board will issue the final agency decision on a claim based on the information submitted by the claimant, the Audit Division of the General Services Administration Office of Transportation and Property Management (the Audit Division), and the department or agency (the agency) for which the services were provided. The burden is on the claimant to establish <PRTPAGE P="239"/>the timeliness of its claim, the liability of the agency, and the claimant's right to payment.</P>
          <CITA>[62 FR 25867, May 12, 1997, as amended at 64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6103.2</SECTNO>
          <SUBJECT>Filing claims [Rule 302].</SUBJECT>
          <P>(a) <E T="03">Form.</E> A claim shall be in writing and must be signed by the claimant or by the claimant's attorney or authorized representative. No particular form is required. The request should describe the basis for the claim and state the amount sought. The request should also include:</P>
          <P>(1) The name, address, telephone number, and facsimile machine number, if available, of the claimant;</P>
          <P>(2) The Government bill of lading or Government transportation request number;</P>
          <P>(3) The claimant's bill number;</P>
          <P>(4) The Government voucher number and date of payment;</P>
          <P>(5) The Audit Division claim number;</P>
          <P>(6) The agency for which the services were provided; and</P>
          <P>(7) Any other identifying information.</P>
          <P>(b) <E T="03">When and where claims are filed.</E> A claim is filed when it is received by the Office of the Clerk of the Board during the Board's working hours. Claims should be sent to the Board at the following address: Office of the Clerk of the Board, Room 7022, General Services Administration Building, 1800 F Street, NW, Washington, DC 20405. The Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile machine number is: (202) 501-0664. The Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each day other than a Saturday, Sunday, or federal holiday.</P>
          <P>(c) <E T="03">Notice of docketing.</E> A claim will be docketed by the Office of the Clerk of the Board, and a written notice of docketing will be sent promptly to the claimant, the Director of the Audit Division, and the agency for which the services were provided. The notice of docketing will identify the judge to whom the claim has been assigned.</P>
          <P>(d) <E T="03">Service of copy.</E> The claimant shall send to the Audit Division and the agency identified in paragraph (a)(6) of this section copies of all material provided to the Board. All submissions to the Board by a claimant shall indicate that a copy has been provided to the Audit Division and the agency.</P>
          <CITA>[62 FR 25867, May 12, 1997, as amended at 64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6103.3</SECTNO>
          <SUBJECT>Responses to claims [Rule 303].</SUBJECT>
          <P>(a) <E T="03">Content of responses.</E> Within 30 calendar days after docketing by the Board (or within 60 calendar days after docketing if the agency office for which the services were provided is located outside the 50 states and the District of Columbia), the Audit Division and the agency for which the services were provided shall each submit to the Board:</P>
          <P>(1) A simple, concise, and direct statement of its response to the claim;</P>
          <P>(2) Citations to applicable statutes, regulations, and cases; and</P>
          <P>(3) Any additional information deemed necessary to the Board's review of the claim.</P>
          <P>(b) <E T="03">Service of copy.</E> All responses submitted to the Board shall indicate that a copy has been sent to the claimant and to the Audit Division or the agency, as appropriate. To expedite proceedings, if either the Audit Division or the agency will not file a response (e.g., it believes its reasons for denying the claim were sufficiently explained in the material filed by the claimant), it should notify the Board, the claimant, and the Audit Division or the agency, as appropriate, that it does not intend to file a response.</P>
          <CITA>[62 FR 25867, May 12, 1997, as amended at 64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6103.4</SECTNO>
          <SUBJECT>Reply to Audit Division and agency responses [Rule 304].</SUBJECT>
          <P>A claimant may file with the Board and serve on the Audit Division and the agency a reply to the Audit Division and agency responses within 30 calendar days after receiving the responses (or within 60 calendar days after receiving the responses, if the claimant is located outside the 50 states and the District of Columbia). To expedite proceedings, if the claimant does not wish to respond, the claimant should so notify the Board, the Audit Division, and the agency.</P>
          <CITA>[64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <PRTPAGE P="240"/>
          <SECTNO>6103.5</SECTNO>
          <SUBJECT>Proceedings [Rule 305].</SUBJECT>
          <P>(a) <E T="03">Requests for additional time.</E> The claimant, the Audit Division, or the agency may request additional time to make any filing.</P>
          <P>(b) <E T="03">Conferences.</E> The judge will not engage in ex parte communications involving the underlying facts or merits of the claim. The judge may hold a conference with the claimant, the Audit Division, and the agency at any time, for any purpose. The judge may provide the participants a memorandum reflecting the results of a conference.</P>
          <P>(c) <E T="03">Submissions.</E> The judge may require the submission of additional information at any time. The claimant, the Audit Division, or the agency may request an opportunity to make additional submissions; however, no such submission may be made unless authorized by the judge.</P>
          <CITA>[62 FR 25867, May 12, 1997, as amended at 64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6103.6</SECTNO>
          <SUBJECT>Decisions [Rule 306].</SUBJECT>

          <P>The judge will issue a written decision based upon the record, which includes submissions by the claimant, the Audit Division, and the agency, and information provided during conferences. The claimant, the Audit Division, and the agency will each be furnished a copy of the decision by the Office of the Clerk of the Board. In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is: <E T="03">www.gsbca.gsa.gov.</E>
          </P>
          <CITA>[62 FR 25867, May 12, 1997, as amended at 64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6103.7</SECTNO>
          <SUBJECT>Reconsideration of Board decision [Rule 307].</SUBJECT>
          <P>A request for reconsideration may be made by the claimant, the Audit Division, or the agency. Such requests must be received by the Board within 30 calendar days after the date the decision was issued (or within 60 calendar days after the date the decision was issued, if the claimant or agency office making the request is located outside the 50 states and the District of Columbia). The request for reconsideration should state the reasons why the Board should consider the request. Mere disagreement with a decision or re-argument of points already made is not a sufficient ground for seeking reconsideration.</P>
          <CITA>[62 FR 25867, May 12, 1997, as amended at 64 FR 38143, July 15, 1999]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6103.8</SECTNO>
          <SUBJECT>Payment of successful claims [Rule 308].</SUBJECT>
          <P>The agency for which the services were provided shall pay amounts the Board determines are due the claimant.</P>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 6104</EAR>
        <HD SOURCE="HED">PART 6104—RULES OF PROCEDURE FOR TRAVEL AND RELOCATION EXPENSES CASES</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6104.1</SECTNO>
          <SUBJECT>Scope [Rule 401].</SUBJECT>
          <SECTNO>6104.2</SECTNO>
          <SUBJECT>Filing claims [Rule 402].</SUBJECT>
          <SECTNO>6104.3</SECTNO>
          <SUBJECT>Response to claim [Rule 403].</SUBJECT>
          <SECTNO>6104.4</SECTNO>
          <SUBJECT>Reply to agency response [Rule 404].</SUBJECT>
          <SECTNO>6104.5</SECTNO>
          <SUBJECT>Proceedings [Rule 405].</SUBJECT>
          <SECTNO>6104.6</SECTNO>
          <SUBJECT>Decisions [Rule 406].</SUBJECT>
          <SECTNO>6104.7</SECTNO>
          <SUBJECT>Reconsideration of Board decision [Rule 407].</SUBJECT>
          <SECTNO>6104.8</SECTNO>
          <SUBJECT>Payment of successful claims [Rule 408].</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>31 U.S.C. 3702; 41 U.S.C. 601-613; Sec. 201(n)(3), Pub. L. 104-316, 110 Stat. 3826.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>62 FR 25869, May 12, 1997, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6104.1</SECTNO>
          <SUBJECT>Scope [Rule 401].</SUBJECT>
          <P>(a) <E T="03">Authority.</E> These procedures govern the Board's resolution of claims by federal civilian employees for certain travel or relocation expenses that were formerly settled by the Comptroller General under 31 U.S.C. 3702. Section 201(n)(3) of the General Accounting Office Act of 1996, Public Law 104-316, transfers the authority to resolve these claims to the Administrator of General Services, who has redelegated that function to the General Services Administration Board of Contract Appeals. The requirements contained in 31 U.S.C. 3702, including limitations on the time within which claims may be filed, apply to the Board's review of these claims.</P>
          <P>(b) <E T="03">Types of claims.</E> These procedures are applicable to the review of two types of claims made against the United States by federal civilian employees:</P>

          <P>(1) Claims for reimbursement of expenses incurred while on official temporary duty travel; and<PRTPAGE P="241"/>
          </P>
          <P>(2) Claims for reimbursement of expenses incurred in connection with relocation to a new duty station.</P>
          <P>(c) <E T="03">Review of claims.</E> Any claim for entitlement to travel or relocation expenses must first be filed with the claimant's own department or agency (the agency). The agency shall initially adjudicate the claim. A claimant disagreeing with the agency's determination may request review of the claim by the Board. The burden is on the claimant to establish the timeliness of the claim, the liability of the agency, and the claimant's right to payment. The Board will issue the final decision on a claim based on the information submitted by the claimant and the agency.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.2</SECTNO>
          <SUBJECT>Filing claims [Rule 402].</SUBJECT>
          <P>(a) <E T="03">Filing claims.</E> A claim may be sent to the Board in either of the following ways:</P>
          <P>(1) <E T="03">Claim filed by claimant.</E> A claim shall be in writing and must be signed by the claimant or by the claimant's attorney or authorized representative. No particular form is required. The request should describe the basis for the claim and state the amount sought. The request should also include:</P>
          <P>(i) The name, address, telephone number, and facsimile machine number, if available, of the claimant;</P>
          <P>(ii) The name, address, telephone number, and facsimile machine number, if available, of the agency employee who denied the claim;</P>
          <P>(iii) A copy of the denial of the claim; and</P>
          <P>(iv) Any other information which the claimant believes the Board should consider.</P>
          <P>(2) <E T="03">Claim forwarded by agency on behalf of claimant.</E> If an agency has denied a claim for travel or relocation expenses, it may, at the claimant's request, forward the claim to the Board. The agency shall include the information required by paragraph (a)(1) of this section and by § 6104.3.</P>
          <P>(3) <E T="03">Where claims are filed.</E> A claim should be sent to the Board at the following address: Office of the Clerk of the Board, Room 7022, General Services Administration Building, 1800 F Street, NW, Washington, DC 20405. The Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile machine number is: (202) 501-0664. The Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each day other than a Saturday, Sunday, or federal holiday.</P>
          <P>(b) <E T="03">Notice of docketing.</E> A request for review will be docketed by the Office of the Clerk of the Board. A written notice of docketing will be sent promptly to the claimant and the agency contact. The notice of docketing will identify the judge to whom the claim has been assigned.</P>
          <P>(c) <E T="03">Service of copy.</E> The claimant shall send to the agency employee identified in paragraph (a)(1)(ii) of this section, or the individual otherwise identified by the agency to handle the claim, copies of all material provided to the Board. If an agency forwards a claim to the Board, it shall, at the same time, send to the claimant a copy of all material sent to the Board. All submissions to the Board shall indicate that a copy has been provided to the claimant or the agency.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.3</SECTNO>
          <SUBJECT>Response to claim [Rule 403].</SUBJECT>
          <P>(a) <E T="03">Content of response.</E> When a claim has been filed with the Board by a claimant, within 30 calendar days after docketing by the Board (or within 60 calendar days after docketing, if the agency office involved is located outside the 50 states and the District of Columbia), the agency shall submit to the Board:</P>
          <P>(1) A simple, concise, and direct statement of its response to the claim;</P>
          <P>(2) Citations to applicable statutes, regulations, and cases; and</P>
          <P>(3) Any additional information deemed necessary to the Board's review of the claim.</P>
          <P>(b) <E T="03">Service of copy.</E> A copy of these submissions shall also be sent to the claimant. To expedite proceedings, if the agency believes its reasons for denying the claim were sufficiently explained in the material filed by the claimant, it should notify the Board and the claimant that it does not intend to file a response.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.4</SECTNO>
          <SUBJECT>Reply to agency response [Rule 404].</SUBJECT>

          <P>A claimant may file a reply to the agency response within 30 calendar days after receiving the response (or <PRTPAGE P="242"/>within 60 calendar days after receiving the response, if the claimant is located outside the 50 states and the District of Columbia). If the claim has been forwarded by the agency, the claimant shall have 30 calendar days from the time the claim is docketed by the Board (or 60 calendar days after docketing, if the claimant is located outside the 50 states and the District of Columbia) to reply. To expedite proceedings, if the claimant does not wish to reply, the claimant should so notify the Board and the agency.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.5</SECTNO>
          <SUBJECT>Proceedings [Rule 405].</SUBJECT>
          <P>(a) <E T="03">Requests for additional time.</E> The claimant or the agency may request additional time to make any filing.</P>
          <P>(b) <E T="03">Conferences.</E> The judge will not engage in ex parte communications involving the underlying facts or merits of the claim. The judge may hold a conference with the claimant and the agency contact, at any time, for any purpose. The judge may provide the participants a memorandum reflecting the results of a conference.</P>
          <P>(c) Additional submissions. The judge may require the submission of additional information at any time.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.6</SECTNO>
          <SUBJECT>Decisions [Rule 406].</SUBJECT>

          <P>The judge will issue a written decision based upon the record, which includes submissions by the claimant and the agency, and information provided during conferences. The claimant and the agency will each be furnished a copy of the decision by the Office of the Clerk of the Board. In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is: <E T="03">www.gsbca.gsa.gov.</E>
          </P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.7</SECTNO>
          <SUBJECT>Reconsideration of Board decision [Rule 407].</SUBJECT>
          <P>A request for reconsideration may be made by the claimant or the agency. Such requests must be received by the Board within 30 calendar days after the date the decision was issued (or within 60 calendar days after the date the decision was issued, if the claimant or the agency office making the request is located outside the 50 states and the District of Columbia). The request for reconsideration should state the reasons why the Board should consider the request. Mere disagreement with a decision or re-argument of points already made is not a sufficient ground for seeking reconsideration.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6104.8</SECTNO>
          <SUBJECT>Payment of successful claims [Rule 408].</SUBJECT>
          <P>The agency shall pay amounts the Board determines are due the claimant.</P>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 6105</EAR>
        <HD SOURCE="HED">PART 6105—RULES OF PROCEDURE FOR DECISIONS AUTHORIZED BY 31 U.S.C. 3529</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6105.1</SECTNO>
          <SUBJECT>Scope [Rule 501].</SUBJECT>
          <SECTNO>6105.2</SECTNO>
          <SUBJECT>Request for decision [Rule 502].</SUBJECT>
          <SECTNO>6105.3</SECTNO>
          <SUBJECT>Additional submissions [Rule 503].</SUBJECT>
          <SECTNO>6105.4</SECTNO>
          <SUBJECT>Proceedings [Rule 504].</SUBJECT>
          <SECTNO>6105.5</SECTNO>
          <SUBJECT>Decisions [Rule 505].</SUBJECT>
          <SECTNO>6105.6</SECTNO>
          <SUBJECT>Reconsideration of Board decision [Rule 506].</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 601-613; Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. L. 104-53, 109 Stat. 535.</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>62 FR 25871, May 12, 1997, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6105.1</SECTNO>
          <SUBJECT>Scope [Rule 501].</SUBJECT>
          <P>These procedures govern the Board's issuance of decisions, upon the request of an agency disbursing or certifying official, or agency head, on questions involving payment of travel or relocation expenses that were formerly issued by the Comptroller General under 31 U.S.C. 3529. Section 204 of the General Accounting Office Act of 1996, Public Law 104-316, transfers the authority to issue these decisions to the Director of the Office of Management and Budget, and authorizes the Director to delegate the authority to perform that function to another agency or agencies. The Director has delegated the authority to issue these decisions to the Administrator of General Services, who has redelegated that function to the General Services Administration Board of Contract Appeals.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6105.2</SECTNO>
          <SUBJECT>Request for decision [Rule 502].</SUBJECT>
          <P>(a) <E T="03">Request for decision.</E> (1) A disbursing or certifying official of an agency, or the head of an agency, may request from the Board a decision (referred to as a “Section 3529 decision”) on a question involving a payment the <PRTPAGE P="243"/>disbursing official or head of agency will make, or a voucher presented to a certifying official for certification, which concerns the following type of claim made against the United States by a federal civilian employee:</P>
          <P>(i) A claim for reimbursement of expenses incurred while on official temporary duty travel; and</P>
          <P>(ii) A claim for reimbursement of expenses incurred in connection with relocation to a new duty station.</P>
          <P>(2) A request for a Section 3529 decision shall be in writing; no particular form is required. The request must refer to a specific payment or voucher; it may not seek general legal advice. The request should—</P>
          <P>(i) Explain why the official is seeking a Section 3529 decision, rather than taking action on his or her own regarding the matter;</P>
          <P>(ii) State the question presented and include citations to applicable statutes, regulations, and cases;</P>
          <P>(iii) Include—</P>
          <P>(A) The name, address, telephone number, and facsimile machine number (if available) of the official making the request;</P>
          <P>(B) The name, address, telephone number, and facsimile number (if available) of the employee affected by the specific payment or voucher; and</P>
          <P>(C) Any other information which the official believes the Board should consider; and</P>
          <P>(iv) Be sent to the Office of the Clerk of the Board, Room 7022, General Services Administration Building, 1800 F Street, NW., Washington, DC 20405. The Clerk's telephone number is: (202) 501-0116. The Clerk's facsimile machine number is (202) 501-0664. The Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each day other than a Saturday, Sunday, or federal holiday.</P>
          <P>(b) <E T="03">Notice of docketing.</E> A request for a Section 3529 decision will be docketed by the Office of the Clerk of the Board. A written notice of docketing will be sent promptly to the official and the affected employee. The notice of docketing will identify the judge to whom the request has been assigned.</P>
          <P>(c) <E T="03">Service of copy.</E> The official submitting a request for a Section 3529 decision shall send to the affected employee copies of all material provided to the Board. All submissions to the Board shall indicate that a copy has been provided to the affected employee.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6105.3</SECTNO>
          <SUBJECT>Additional submissions [Rule 503].</SUBJECT>
          <P>If the affected employee wishes to submit any additional information to the Board, he or she must submit such information within 30 calendar days after receiving the copy of the request for decision and supporting material (or within 60 calendar days after receiving the copy, if the affected employee is located outside the 50 states and the District of Columbia). To expedite proceedings, if the employee does not wish to make an additional submission, the employee should so notify the Board and the agency.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6105.4</SECTNO>
          <SUBJECT>Proceedings [Rule 504].</SUBJECT>
          <P>(a) <E T="03">Requests for additional time.</E> The agency or the affected employee may request additional time to make any filing.</P>
          <P>(b) <E T="03">Conferences.</E> The judge will not engage in ex parte communications involving the underlying facts or merits of the request. The judge may hold a conference with the agency and the affected employee, at any time, for any purpose. The judge may provide the participants a memorandum reflecting the results of a conference.</P>
          <P>(c) <E T="03">Additional submissions.</E> The judge may require the submission of additional information at any time.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6105.5</SECTNO>
          <SUBJECT>Decisions [Rule 505].</SUBJECT>

          <P>The judge will issue a written decision based upon the record, which includes submissions by the agency and the affected employee, and information provided during conferences. The agency and the affected employee will each be furnished a copy of the decision by the Office of the Clerk of the Board. In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is: <E T="03">www.gsbca.gsa.gov.</E>
          </P>
        </SECTION>
        <SECTION>
          <SECTNO>6105.6</SECTNO>
          <SUBJECT>Reconsideration of Board decision [Rule 506].</SUBJECT>

          <P>A request for reconsideration may be made by the agency or the affected employee. Such requests must be received by the Board within 30 calendar days after the date the decision was issued <PRTPAGE P="244"/>(or within 60 calendar days after the date the decision was issued, if the agency or the affected employee making the request is located outside the 50 states and the District of Columbia). The request for reconsideration should state the reasons why the Board should consider the request. Mere disagreement with a decision or re-argument of points already made is not a sufficient ground for seeking reconsideration.</P>
        </SECTION>
      </PART>
    </CHAPTER>
    <CHAPTER>
      <LRH>48 CFR Ch. 63 (10-1-05 Edition)</LRH>
      <RRH>Department of Transportation Board of Contract Appeals</RRH>
      <TOC>
        <TOCHD>
          <PRTPAGE P="245"/>
          <HD SOURCE="HED">CHAPTER 63—DEPARTMENT OF TRANSPORTATION BOARD OF CONTRACT APPEALS</HD>
          <P>(Parts 6300 to 6399)</P>
        </TOCHD>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>6301</PT>
          <SUBJECT>Board of contract appeals</SUBJECT>
          <PG>247</PG>
          <PT>6302</PT>
          <SUBJECT>Rules of procedure</SUBJECT>
          <PG>248</PG>
        </CHAPTI>
      </TOC>
      <PART>
        <PRTPAGE P="247"/>
        <EAR>Pt. 6301</EAR>
        <HD SOURCE="HED">PART 6301—BOARD OF CONTRACT APPEALS</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6301.0</SECTNO>
          <SUBJECT>Foreword.</SUBJECT>
          <SECTNO>6301.1</SECTNO>
          <SUBJECT>Scope of part.</SUBJECT>
          <SECTNO>6301.2</SECTNO>
          <SUBJECT>Qualifications of members.</SUBJECT>
          <SECTNO>6301.3</SECTNO>
          <SUBJECT>Jurisdiction and authority of the Board and its members.</SUBJECT>
          <SECTNO>6301.4</SECTNO>
          <SUBJECT>Ex parte communications.</SUBJECT>
          <SECTNO>6301.5</SECTNO>
          <SUBJECT>Contract appeals procedures (general).</SUBJECT>
          <SECTNO>6301.6</SECTNO>
          <SUBJECT>Effective date.</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>Contract Disputes Act of 1978 (41 U.S.C. 600, <E T="03">et seq.</E>).</P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>52 FR 48630, Dec. 23, 1987, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6301.0</SECTNO>
          <SUBJECT>Foreword.</SUBJECT>
          <P>A Department of Transportation Board of Contract Appeals has been established pursuant to Pub. L. 95-563. The Secretary appoints the members of the Board and designates the Chair and Vice-Chair of the Board.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6301.1</SECTNO>
          <SUBJECT>Scope of part.</SUBJECT>
          <P>(a) <E T="03">Scope.</E> This part prescribes the functions and procedures of the Department of Transportation Board of Contract Appeals and provides for the appointment of a Chair, a Vice-Chair, and Members of the Board, and sets forth their duties.</P>
          <P>(b) <E T="03">Definitions.</E> For the purposes of this part—</P>
          <P>
            <E T="03">Administrative Judge</E> means a member of the Board selected and appointed to serve pursuant to the Contract Disputes Act of 1978;</P>
          <P>
            <E T="03">Appellant</E> means the contractor who appeals;</P>
          <P>
            <E T="03">Board</E> means the Department of Transportation Board of Contract Appeals;</P>
          <P>
            <E T="03">Contracting officer</E> means the Government's contracting officer whose decision is appealed, or the successor contracting officer;</P>
          <P>
            <E T="03">Parties</E> means the appellant and the contracting officer, and</P>
          <P>
            <E T="03">Secretary</E> means the Secretary of Transportation.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6301.2</SECTNO>
          <SUBJECT>Qualifications of members.</SUBJECT>
          <P>Each member of the Board must be a qualified attorney who is admitted to practice before the highest court of a State or the District of Columbia. Members of the Board are selected and appointed to serve in the same manner as administrative law judges appointed pursuant to section 3105 of title 5 of the United States Code, with the additional requirement that each member shall have had not fewer than five years experience in public contract law.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6301.3</SECTNO>
          <SUBJECT>Jurisdiction and authority of the Board and its members.</SUBJECT>
          <P>(a) The Board hears and decides:</P>
          <P>(1) Appeals from decisions made by contracting officers relating to contracts of the Department of Transportation and its constituent administrations;</P>
          <P>(2) Appeals from decisions of contracting officers relating to contracts of any other executive agency when such agency or the Administrator for Federal Procurement Policy has designated the Board to decide the appeal;</P>

          <P>(3) Matters within jurisdiction of the Board in accordance with the provisions of the Contract Disputes Act, 41 U.S.C. 600 <E T="03">et seq.</E>; and</P>
          <P>(4) Other matters as directed by the Secretary which are not inconsistent with statutory duties.</P>
          <FP>In each case, the Board shall make a final decision which is impartial, fair, and just to the parties and is supported by the record of the case and the law. The Administrative Judge assigned to hear an appeal has authority to act for the Board in all matters with respect to such appeal. Included in such authority is the authority to sign subpoenas and the power to authorize the Recorder of the Board to issue subpoenas pursuant to section 11 of the Contract Disputes Act of 1978. (41 U.S.C. 610)</FP>
          <P>(b) An Administrative Judge may not act for the Board or participate in a decision if that Judge has participated directly in any aspect of the award or administration of the contract involved.</P>
          <P>(c) Except for appeals considered under the expedited small claims or accelerated procedures, appeals are assigned to a panel of three Administrative Judges of the Board. The decision of a majority of the panel shall constitute the decision of the Board.</P>
        </SECTION>
        <SECTION>
          <PRTPAGE P="248"/>
          <SECTNO>6301.4</SECTNO>
          <SUBJECT>Ex parte communications.</SUBJECT>
          <P>Ex parte communications, that is, written or oral communications with the Board by or for one party only without notice to the other, are not permitted. No member of the Board or of the Board's staff shall consider, nor shall any person directly or indirectly involved in an appeal submit to the Board or to the Board's staff, off-the-record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation between Board members nor to ex parte communications concerning the Board's administrative functions or procedures.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6301.5</SECTNO>
          <SUBJECT>Contract appeals procedures (general).</SUBJECT>
          <P>(a) It is the intent of these rules to provide for the just and inexpensive determination of appeals without unnecessary delay. It is the objective of the Board's preliminary procedures to encourage full disclosure of relevant and material facts, and to discourage surprise. Each specified time limitation is a maximum, and should not be fully used if the action described can be accomplished in a shorter period. The Board may extend any time limitation for good cause and in accordance with legal precedent.</P>
          <P>(b) Ordinarily, the appellant has the burden of proof.</P>
          <P>(c) The rules of procedure at 6302 shall govern the procedures in all contract disputes appealed to the Board.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6301.6</SECTNO>
          <SUBJECT>Effective date.</SUBJECT>
          <P>This chapter shall apply to all appeals relating to contracts entered into on or after March 1, 1979, and upon the contractor's election of Contract Disputes Act procedures, to appeals relating to earlier contracts with respect to claims pending before the contracting officer on March 1, 1979, or initiated thereafter.</P>
        </SECTION>
      </PART>
      <PART>
        <EAR>Pt. 6302</EAR>
        <HD SOURCE="HED">PART 6302—RULES OF PROCEDURE</HD>
        <CONTENTS>
          <SECHD>Sec.</SECHD>
          <SECTNO>6302.1</SECTNO>
          <SUBJECT>How to appeal a contracting officer's decision (Rule 1).</SUBJECT>
          <SECTNO>6302.2</SECTNO>
          <SUBJECT>Contents of notice of appeal (Rule 2).</SUBJECT>
          <SECTNO>6302.3</SECTNO>
          <SUBJECT>Docketing of appeals (Rule 3).</SUBJECT>
          <SECTNO>6302.4</SECTNO>
          <SUBJECT>Preparation, contents, organization, forwarding, and status of appeal file (Rule 4).</SUBJECT>
          <SECTNO>6302.5</SECTNO>
          <SUBJECT>Service of documents (Rule 5).</SUBJECT>
          <SECTNO>6302.6</SECTNO>
          <SUBJECT>Computation and extension of time limits (Rule 6).</SUBJECT>
          <SECTNO>6302.7</SECTNO>
          <SUBJECT>Motions (Rule 7).</SUBJECT>
          <SECTNO>6302.8</SECTNO>
          <SUBJECT>Appellant's election of procedures (Rule 8).</SUBJECT>
          <SECTNO>6302.9</SECTNO>
          <SUBJECT>The SMALL CLAIMS (EXPEDITED) procedure (Rule 9).</SUBJECT>
          <SECTNO>6302.10</SECTNO>
          <SUBJECT>The ACCELERATED procedure (Rule 10).</SUBJECT>
          <SECTNO>6302.11</SECTNO>
          <SUBJECT>Submission of appeal without a hearing (Rule 11).</SUBJECT>
          <SECTNO>6302.12</SECTNO>
          <SUBJECT>Regular procedure (Rule 12).</SUBJECT>
          <SECTNO>6302.13</SECTNO>
          <SUBJECT>Pleadings (Rule 13).</SUBJECT>
          <SECTNO>6302.14</SECTNO>
          <SUBJECT>Amendments of pleadings or record (Rule 14).</SUBJECT>
          <SECTNO>6302.15</SECTNO>
          <SUBJECT>Prehearing briefs (Rule 15).</SUBJECT>
          <SECTNO>6302.16</SECTNO>
          <SUBJECT>Prehearing conference (Rule 16).</SUBJECT>
          <SECTNO>6302.17</SECTNO>
          <SUBJECT>The record of the appeal (Rule 17).</SUBJECT>
          <SECTNO>6302.18</SECTNO>
          <SUBJECT>Discovery-depositions (Rule 18).</SUBJECT>
          <SECTNO>6302.19</SECTNO>
          <SUBJECT>Interrogatories to parties, admission of facts, and inspection of documents (Rule 19).</SUBJECT>
          <SECTNO>6302.20</SECTNO>
          <SUBJECT>Time and place of hearing (Rule 20).</SUBJECT>
          <SECTNO>6302.21</SECTNO>
          <SUBJECT>Notice of hearing (Rule 21).</SUBJECT>
          <SECTNO>6302.22</SECTNO>
          <SUBJECT>Unexcused absence of a party (Rule 22).</SUBJECT>
          <SECTNO>6302.23</SECTNO>
          <SUBJECT>Nature of hearings (Rule 23).</SUBJECT>
          <SECTNO>6302.24</SECTNO>
          <SUBJECT>Subpoenas (Rule 24).</SUBJECT>
          <SECTNO>6302.25</SECTNO>
          <SUBJECT>Copies of papers (Rule 25).</SUBJECT>
          <SECTNO>6302.26</SECTNO>
          <SUBJECT>Posthearing briefs (Rule 26).</SUBJECT>
          <SECTNO>6302.27</SECTNO>
          <SUBJECT>Transcript of proceedings (Rule 27).</SUBJECT>
          <SECTNO>6302.28</SECTNO>
          <SUBJECT>Withdrawal of exhibits (Rule 28).</SUBJECT>
          <SECTNO>6302.29</SECTNO>
          <SUBJECT>Representation of the parties (Rule 29).</SUBJECT>
          <SECTNO>6302.30</SECTNO>
          <SUBJECT>Alternative dispute resolution methods (Rule 30).</SUBJECT>
          <SECTNO>6302.31</SECTNO>
          <SUBJECT>Settlement (Rule 31).</SUBJECT>
          <SECTNO>6302.32</SECTNO>
          <SUBJECT>Decisions (Rule 32).</SUBJECT>
          <SECTNO>6302.33</SECTNO>
          <SUBJECT>Motion for reconsideration (Rule 33).</SUBJECT>
          <SECTNO>6302.34</SECTNO>
          <SUBJECT>Dismissal for lack of jurisdiction (Rule 34).</SUBJECT>
          <SECTNO>6302.35</SECTNO>
          <SUBJECT>Dismissal without prejudice (Rule 35).</SUBJECT>
          <SECTNO>6302.36</SECTNO>
          <SUBJECT>Dismissal for failure to prosecute or defend (Rule 36).</SUBJECT>
          <SECTNO>6302.37</SECTNO>
          <SUBJECT>Sanctions (Rule 37).</SUBJECT>
          <SECTNO>6302.38</SECTNO>
          <SUBJECT>Remand from court (Rule 38).</SUBJECT>
        </CONTENTS>
        <AUTH>
          <HD SOURCE="HED">Authority:</HD>
          <P>Contract Disputes Act of 1978 (41 U.S.C. 600, <E T="03">et seq.).</E>
          </P>
        </AUTH>
        <SOURCE>
          <HD SOURCE="HED">Source:</HD>
          <P>52 FR 48631, Dec. 23, 1987, unless otherwise noted.</P>
        </SOURCE>
        <SECTION>
          <SECTNO>6302.1</SECTNO>
          <SUBJECT>How to appeal a contracting officer's decision (Rule 1).</SUBJECT>

          <P>(a) Notice of an appeal shall be in writing and mailed or otherwise furnished to the Board within 90 days from the date of receipt of a contracting officer's decision. A copy of the notice shall be furnished to the <PRTPAGE P="249"/>contracting officer from whose decision the appeal is taken.</P>
          <P>(b) Where the contractor has submitted a claim of $50,000 or less to the contracting officer and has requested a written decision within 60 days from receipt of the request, and the contracting officer has not done so, the contractor may file a notice of appeal as provided in paragraph (a) of this section citing the failure of the contracting officer to issue a decision.</P>
          <P>(c) Where the contractor has submitted a claim in excess of $50,000 to the contracting officer and the contracting officer has failed to issue a decision within a reasonable time, the contractor may file a notice of appeal as provided in paragraph (a) of this section, citing the failure to issue a decision.</P>
          <P>(d) Upon docketing of appeals filed pursuant to paragraph (b) or (c) of this section, the Board, at its option, may stay further proceedings pending issuance of a final decision by the contracting officer within the time fixed by the Board or order the appeal to proceed without the contracting officer's decision.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.2</SECTNO>
          <SUBJECT>Contents of notice of appeal (Rule 2).</SUBJECT>
          <P>A notice of appeal must indicate that an appeal is intended and identify the contract number, the administration, bureau, or office concerned with the dispute, the decision from which the appeal is taken, and the amount in dispute, if known. The notice of appeal shall be signed by the appellant, or by an officer of an appellant corporation or member of an appellant firm, or by an appellant's authorized representative or attorney.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.3</SECTNO>
          <SUBJECT>Docketing of appeals (Rule 3).</SUBJECT>
          <P>Following receipt by the Board of the original notice of appeal, the appellant and the contracting officer are promptly notified of its receipt and docketing by the Board, and the Board furnishes a copy of these rules to the appellant.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.4</SECTNO>
          <SUBJECT>Preparation, contents, organization, forwarding, and status of appeal file (Rule 4).</SUBJECT>
          <P>(a) <E T="03">Duties of contracting officer.</E> Within 30 days after receipt of notice that an appeal has been docketed, the contracting officer shall assemble and transmit to the Board, with a copy to the appellant and the Government attorney, an appeal file consisting of all documents pertinent of the appeal, including:</P>
          <P>(1) The contracting officer's decision and finding of fact from which the appeal is taken;</P>
          <P>(2) The contract, including pertinent specifications, modifications, plans, and drawings;</P>
          <P>(3) All correspondence between the parties pertinent to the appeal, including the 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 witnesses 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.</P>
          <P>(b) <E T="03">Duties of the appellant.</E> Within 30 days after receipt of a copy of the appeal file assembled by the contracting officer, the appellant may supplement the file by transmitting to the Board any additional documents which it considers pertinent to the appeal and shall furnish two copies of such documents to the Government attorney.</P>
          <P>(c) <E T="03">Organization of appeal file.</E> Documents in the appeal file may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file. The contracting officer's final decision and the contract shall be conveniently placed in the file for ready reference.</P>
          <P>(d) <E T="03">Lengthy documents.</E> The Board may waive the requirement of furnishing to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file when a party has shown that doing so would impose an undue burden. At the time a party files with the Board a document as to which such a waiver has been granted, the other party shall be notified that the document or a copy is available for inspection at the offices of the Board or of the party filing the document.<PRTPAGE P="250"/>
          </P>
          <P>(e) <E T="03">Status documents in appeal file.</E> Documents contained in the appeal file are, without further action by the parties, a part of the record upon which the Board renders its decision, unless a party objects to the consideration of a particular document at or before the hearing or, if there is no hearing on the appeal, before closing the record. If objection to a document is made, the Board rules upon its admissibility into the record as evidence in accordance with Rules 17 and 23.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.5</SECTNO>
          <SUBJECT>Service of documents (Rule 5).</SUBJECT>
          <P>A copy of every written communication submitted to the Board shall be sent to every party to the dispute. Such communications shall be sent by delivering in person or by mailing, properly addressed with postage prepaid, to the opposing party or, where the party is represented by counsel, to its counsel. Each communication with the Board shall be accompanied by a statement, signed by the originating party, saying when, how, and to whom a copy was sent.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.6</SECTNO>
          <SUBJECT>Computation and extension of time limits (Rule 6).</SUBJECT>
          <P>(a) <E T="03">Computation.</E> Except as otherwise provided by law, in computing any period of time prescribed by these rules, or by any order of the Board, the day of the event from which the designated period of time begins to run is not included, but the last day of the period is included unless it is a Saturday, Sunday, or a legal holiday, in which case the period runs to the end of the next business day.</P>
          <P>(b) <E T="03">Extensions.</E> All requests for extensions of time shall be submitted to the Board in writing and shall state good cause for the request.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.7</SECTNO>
          <SUBJECT>Motions (Rule 7).</SUBJECT>
          <P>(a) Motions are made by filing an original and two copies, together with any supporting papers, with the Board. Motions may also be made upon the record, in the presence of the other party, at a prehearing conference or a hearing. The Board considers any timely motion:</P>
          <P>(1) For extensions of time (Rule 6) or to cure defaults;</P>
          <P>(2) To require that a pleading be made more definite and certain, or for leave to amend a pleading (Rule 14);</P>
          <P>(3) To dismiss for lack of jurisdiction (Rule 34); to dismiss for failure to prosecute (Rule 36); or to grant summary relief because a pleading does not raise a justifiable issue;</P>
          <P>(4) For discovery, for interrogatories to a party, or for the taking of depositions (Rules 18 and 19);</P>
          <P>(5) To reopen a hearing; or to reconsider a decision (Rule 33), or</P>
          <P>(6) For any other appropriate order.</P>
          <P>(b) The Board may, on its own motion, initiate any such action by notice to the parties. Unless a longer time is allowed by the Board, a party who receives a motion shall file any answering material within 20 days after the date of receipt. The Board makes an order on each motion that is appropriate and just to the parties, and upon conditions that will promote efficiency in disposing of the appeal.</P>
          <P>(c) The Board may permit oral hearing or argument on motions, and may require the presentation of briefs.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.8</SECTNO>
          <SUBJECT>Appellant's election of procedures (Rule 8).</SUBJECT>
          <P>(a) In every appeal the appellant is required to elect one of the following procedures:</P>
          <P>(1) A hearing under the Board's regular procedure (Rule 12);</P>
          <P>(2) A hearing under the SMALL CLAIMS (EXPEDITED) procedure, if applicable (Rule 9);</P>
          <P>(3) A hearing under the Board's ACCELERATED procedure, if applicable (Rule 10), or</P>
          <P>(4) Submission on the written record or without a hearing (Rule 11). Also see Rule 11 with respect to the Government's right to waive a hearing.</P>
          <P>(b) The SMALL CLAIMS (EXPEDITED) procedure is available where the amount in dispute is $10,000 or less (Rule 9). The ACCELERATED procedure is available where the amount in dispute is $50,000 or less (Rule 10). In deciding whether the SMALL CLAIMS (EXPEDITED) or ACCELERATED procedure is applicable to an appeal, any question regarding the amount in dispute shall be determined by the Board.</P>

          <P>(c) The appellant's election of one of the above procedures shall be made in <PRTPAGE P="251"/>writing within 30 days after receipt of the appeal file unless such period is extended by the Board for good cause shown. The election may not be withdrawn except with permission of the Board and for good cause shown.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.9</SECTNO>
          <SUBJECT>The SMALL CLAIMS (EXPEDITED) procedure (Rule 9).</SUBJECT>
          <P>(a) The SMALL CLAIMS (EXPEDITED) procedure provides for simplified rules of procedure to facilitate the decision of an appeal, whenever possible, within 120 days from the date such procedure is elected.</P>
          <P>(b) Promptly upon receipt of an appellant's election of the SMALL CLAIMS (EXPEDITED) procedure, the assigned Administrative Judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties:</P>
          <P>(1) Identify and simplify the issues in dispute;</P>
          <P>(2) Establish a simplified procedure appropriate to the particular appeal;</P>
          <P>(3) Determine whether the appellant desires a hearing and, if so, fix a time and place for the hearing, and</P>
          <P>(4) Establish a schedule for the expedited resolution of the appeal.</P>
          <P>(c) The subpoena power set forth in Rule 24 is available for use under the SMALL CLAIMS (EXPEDITED) procedure.</P>
          <P>(d) The filing of pleadings, motions, discovery proceedings or prehearing procedures will be permitted only to the extent consistent with the requirement of conducting the hearing at the scheduled time and place or, if no hearing is scheduled, of closing the record at an early time so as to permit a decision of the appeal within the 120-day time limit. The Board, in its discretion, may impose shortened time periods for any actions required or permitted under these rules, necessary to enable the Board to decide the appeal within the 120-day time limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.</P>
          <P>(e) Decisions in appeals considered under the SMALL CLAIMS (EXPEDITED) procedure are rendered by a single Administrative Judge. Written decisions of appeals considered under this procedure are short and contain only summary findings of fact and conclusions. If there has been a hearing on the appeal, the presiding Administrative Judge may, in his or her discretion, hear closing oral arguments of the parties and then render an oral decision on the appeal. Such decision will include summary findings of fact and conclusions. Whenever such an oral decision is rendered, the Board subsequently furnishes the parties with a written transcript of the oral decision for record and payment purposes and to commence the time period for the filing of a motion for reconsideration under Rule 33.</P>
          <P>(f) Decisions of the Board under the SMALL CLAIMS (EXPEDITED) procedure shall have no value as precedent. Except in cases of fraud, decisions rendered under the SMALL CLAIMS (EXPEDITED) procedure may not be appealed by either party.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.10</SECTNO>
          <SUBJECT>The ACCELERATED procedure (Rule 10).</SUBJECT>
          <P>(a) The ACCELERATED procedure makes available a procedure where the appeal is resolved, whenever possible, within 180 days from the date such procedure is elected.</P>
          <P>(b) Promptly upon receipt of appellant's election of the ACCELERATED procedure, the assigned Administrative Judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties:</P>
          <P>(1) Identify and simplify the issues in dispute;</P>
          <P>(2) Establish a simplified procedure appropriate to the particular appeal;</P>
          <P>(3) Determine whether a hearing is desired and, if so, fix a time and place for a hearing; and</P>
          <P>(4) Establish a schedule for the accelerated resolution of the appeal.</P>
          <P>(c) The subpoena power set forth in Rule 24 is available for use under the ACCELERATED procedure.</P>

          <P>(d) The filing of pleadings, motions, discovery proceedings or prehearing procedures will be permitted only to the extent consistent with the requirement of conducting the hearing at the scheduled time and place or, if no hearing is scheduled, the closing of the record at an early time so as to permit decision of the appeal with the 180-day <PRTPAGE P="252"/>limit. The Board, in its discretion, may impose shortened time periods for any actions required or permitted under these rules, necessary to enable the Board to decide the appeal within the 180-day limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.</P>
          <P>(e) Decisions in appeals considered under the ACCELERATED procedure are rendered by a single Administrative Judge, subject to the concurrence of the Vice-Chair or another assigned Administrative Judge. In the event of an even division on an appeal, the Chair participates in the decision of the appeal. Written decisions of appeals considered under this procedure are short and contain only summary findings of fact and conclusions. In cases where the amount in dispute is $10,000 or less and there has been a hearing under the ACCELERATED procedure the presiding Administrative Judge may, in his or her discretion, hear closing oral arguments of the parties and then render an oral decision on the appeal. Such decision will include summary findings of fact and conclusions. Whenever such an oral decision is rendered the Board subsequently furnishes the parties with a written transcript of the oral decision for record and payment purposes and to commence the time period for the filing of a motion for reconsideration under Rule 33.</P>
          <P>(f) Decisions of the Board under the ACCELERATED procedure are published and have precedential value. Such decisions may be appealed by either party.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.11</SECTNO>
          <SUBJECT>Submission of appeal without a hearing (Rule 11).</SUBJECT>
          <P>Either party may elect to waive a hearing and to submit its case upon the record before the Board pursuant to Rule 17. Submission of a case without hearing does not relieve a party from the necessity of proving the facts supporting that party's allegation or defenses. Affidavits, depositions, admissions, answers to interrogatories, and stipulations may be employed to supplement other documentary evidence in the Board record. The Board may permit such submission to be supplemented by oral argument (transcribed if requested) and by briefs in accordance with Rule 26.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.12</SECTNO>
          <SUBJECT>Regular procedure (Rule 12).</SUBJECT>
          <P>Under the regular procedure the parties are required to file pleadings with the Board (Rule 13). The regular procedure affords the parties an opportunity to make full use of prehearing and discovery procedures. Hearings under the regular procedure are conducted in the same manner as before courts of the United States in non-jury trials.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.13</SECTNO>
          <SUBJECT>Pleadings (Rule 13).</SUBJECT>
          <P>(a) <E T="03">Complaint.</E> Under the regular procedure the appellant, within 30 days after receipt of the appeal file, shall file with the Board an original and two copies of a complaint setting forth simple, concise, and direct statements of each of its claims, alleging the basis, with appropriate reference to contract provisions, for each claim, and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint, although no particular form is required. If the complaint is not filed within 30 days and, in the opinion of the Board, the issues before the Board are sufficiently defined, the appellant's claim and notice of appeal may be deemed to be its complaint, and the parties are so notified.</P>
          <P>(b) <E T="03">Answer.</E> Within 30 days from receipt of said complaint or a Rule 13(a) notice from the Board, the Government shall file with the Board an original and two copies of an answer, setting forth simple, concise, and direct statements of the Government's defense to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer and shall set forth any affirmative defenses as appropriate. Should the answer not be filed within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the parties are so notified.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.14</SECTNO>
          <SUBJECT>Amendments of pleadings or record (Rule 14).</SUBJECT>
          <P>(a) <E T="03">Pleadings.</E> The Board upon its own initiative or upon application by a party may, in its discretion, order a <PRTPAGE P="253"/>party to make a more definite statement of the complaint or answer, or to reply to an answer. The application for such an order suspends the time for responsive pleading. The Board may, in its discretion and within the proper scope of the appeal, permit either party to amend its pleadings upon conditions just to both parties.</P>
          <P>(b) <E T="03">Record.</E> When an issue within the proper scope of the appeal, but not raised by the pleadings, is tried by consent of the parties or by permission of the Board, the issue is treated in all respects as if it had been raised. A motion to amend the pleadings to conform to the proof may be made but is not required. If evidence is objected to at a hearing on the ground that it is not within an issue raised by the pleadings, it may be admitted in evidence, but the objecting party may be granted a continuance if necessary to enable him to meet such evidence.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.15</SECTNO>
          <SUBJECT>Prehearing briefs (Rule 15).</SUBJECT>
          <P>The Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been elected under the regular procedure. (Rule 8(a)(1)). If the Board does not ask for briefs, either party may, upon notice to the other party, furnish a prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be furnished so as to be received by the Board at least 15 days prior to the date set for hearing, and a copy shall be furnished simultaneously to the other party.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.16</SECTNO>
          <SUBJECT>Prehearing conference (Rule 16).</SUBJECT>
          <P>(a) Whether the case is to be submitted on the written record or be heard under any hearing procedure, the Board, upon its own initiative or upon the application of any party, may call upon the parties to appear before the Board for a conference to consider:</P>
          <P>(1) The simplification, clarification, or severing of the issues;</P>
          <P>(2) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;</P>
          <P>(3) The limitation of the number of expert witnesses and the avoidance of similar cumulative evidence;</P>
          <P>(4) The possibility of agreement disposing of all or any of the issues in dispute, and</P>
          <P>(5) Such other matters as may aid in the disposition of the appeal. The result of the conference is set forth in an appropriate memorandum or order which becomes part of the record.</P>
          <P>(b) In addition to the procedures provided in paragraph (a) of this section, the Board may direct any party whose claim is based in whole or in part on books of account or other records to furnish to the other party a statement showing the items and figures intended to be proved, with adequate reference to the books and records from which such figures were taken, and to make all such books and records available for examination by the other party. The Board may also direct any party to whom such a statement of items and figures has been submitted:</P>
          <P>(1) To make an examination of such books or records or waive challenge of the accuracy of the statement submitted as reflecting the contents of such books and records; and</P>
          <P>(2) To furnish the submitting party a schedule or schedules showing the results of such examination, with specific references to the books and records from which such figures were taken, where the examining party's results and figures are different from those contained in the statement submitted.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.17</SECTNO>
          <SUBJECT>The record of the appeal (Rule 17).</SUBJECT>
          <P>(a) <E T="03">Contents.</E> The record upon which the Board's decision is rendered consists of the appeal file, (Rule 4) and, if filed, the pleadings, prehearing conference memoranda or orders, prehearing briefs, depositions and interrogatories and answers to interrogatories received in evidence, admissions, stipulations, transcripts of hearings, hearing exhibits, post-hearing briefs, and documents which the Board has specifically made a part of the record. The record is available for inspection at the offices of the Board at all reasonable times.</P>
          <P>(b) <E T="03">Time of closing the record.</E> Except as the Board, in its discretion, may <PRTPAGE P="254"/>otherwise order, no proof is received in evidence after completion of the hearing of the appeal or, in cases submitted on the record, after notification by the Board that the case is ready for decision.</P>
          <P>(c) <E T="03">Weight of the evidence.</E> The weight to be attached to any evidence of record rests within the sound discretion of the Board. The Board may require any party to submit additional evidence on any matter relevant to the appeal.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.18</SECTNO>
          <SUBJECT>Discovery-depositions (Rule 18).</SUBJECT>
          <P>(a) <E T="03">General policy and protective orders.</E> The parties are encouraged to engage in voluntary discovery procedures. In connection with any deposition or other discovery procedure, the Board may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense. Such orders may include limitations on the scope, method, time and place for discovery, or provisions for protecting the secrecy of confidential information or documents.</P>
          <P>(b) <E T="03">Obtaining a deposition.</E> After an appeal has been docketed, the parties may voluntarily agree to take, or the Board may, upon application of either party and for good cause shown, order the taking of, testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purposes of discovery. The application for such order shall specify whether the purpose of the deposition is for discovery or for use as evidence.</P>
          <P>(c) <E T="03">Orders on depositions.</E> The time, place, and manner of taking depositions are as mutually agreed upon by the parties, or failing such agreement, as ordered by the Board.</P>
          <P>(d) <E T="03">Use of evidence.</E> No testimony taken by deposition is considered as part of the evidence in the hearing of an appeal unless and until such testimony is offered and received in evidence at the hearing. Testimony by deposition is not ordinarily received in evidence if the deponent is present and can testify at the hearing. However, any deposition may be used to contradict or impeach the testimony of a witness at the hearing. In cases submitted on the record, the Board, in its discretion, may receive depositions as evidence to supplement the record.</P>
          <P>(e) <E T="03">Expenses.</E> Each party bears its own expenses associated with discovery, unless, in the discretion of the Board, the expenses are apportioned otherwise.</P>
          <P>(f) <E T="03">Subpoenas.</E> Where appropriate, any party may request that a subpoena be issued under the provisions of Rule 24.</P>
          <CITA>[52 FR 48631, Dec. 23, 1987, as amended at 53 FR 34106, Sept. 2, 1988]</CITA>
        </SECTION>
        <SECTION>
          <SECTNO>6302.19</SECTNO>
          <SUBJECT>Interrogatories to parties, admission of facts, and inspection of documents (Rule 19).</SUBJECT>
          <P>(a) <E T="03">Interrogatories to parties.</E> After an appeal has been filed with the Board, a party may serve on the other party written interrogatories to be answered separately in writing, signed under oath, and returned within 30 days of receipt by the answering party. Within 30 days after service the answering party may object to any interrogatory and the Board determines the extent to which the interrogatory is permitted.</P>
          <P>(b) <E T="03">Admission of facts.</E> After an appeal has been filed with the Board, a party may serve upon the other party a written request for the admission of specified facts. If the request is to admit the genuineness of any document or the truth of any facts stated in a document, a copy of such document shall be served with the request. Within 30 days after receipt of the request, the party served shall answer each requested admission of facts or file objections thereto in writing. The factual propositions set out in the request are deemed admitted, if the answering party, willfully and without good cause, fails to respond to the request for admissions.</P>
          <P>(c) <E T="03">Production and inspection of documents.</E> After an appeal has been filed with the Board, a party may serve upon the other party a written request to produce and permit the inspection and copying or photographing of any designated documents, not privileged, regarding any matter which is relevant to the appeal.</P>

          <P>(d) Any discovery under this rule shall be subject to the provisions of <PRTPAGE P="255"/>Rule 18(a) with respect to general policy and protective orders.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.20</SECTNO>
          <SUBJECT>Time and place of hearing (Rule 20).</SUBJECT>
          <P>Hearings will be held at such places determined by the Board to best serve the interests of the parties and the Board. Hearings will be scheduled at the discretion of the Board with due consideration to the regular order of appeals, the requirements for accelerated or expedited procedures and other pertinent factors. On request of any party and for good cause, the Board, may, in its discretion, change the date of hearing.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.21</SECTNO>
          <SUBJECT>Notice of hearing (Rule 21).</SUBJECT>
          <P>The parties are given at least 15 days notice of the time and place set for hearing. In scheduling hearings, the Board gives due regard to the desires of the parties and the requirement for the just and inexpensive determination of appeals without unnecessary delay. Notices of hearings shall be promptly acknowledged by the parties.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.22</SECTNO>
          <SUBJECT>Unexcused absence of a party (Rule 22).</SUBJECT>
          <P>The unexcused absence of a party at the time and place set for hearing is not an occasion for delay. In the event of such absence, the presiding Administrative Judge may order the hearing to proceed or, in his or her discretion, may invoke the provisions of Rule 36.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.23</SECTNO>
          <SUBJECT>Nature of hearings (Rule 23).</SUBJECT>
          <P>(a) Hearings are as informal as may be reasonable and appropriate under the circumstances. At the hearing the parties may offer such relevant evidence as they deem appropriate and as would be admissible under the Federal Rules of Evidence, subject, however, to the sound discretion of the presiding Administrative Judge in supervising the extent and manner of presenting the evidence. In general, admissibility is governed by relevancy and materiality. Copies of documents, affidavits, or other evidence not ordinarily admissible under judicial rules or evidence, may be admitted in the discretion of the presiding Administrative Judge. The weight to be attached to evidence presented in any particular form is within the discretion of the Board, taking into consideration all the circumstances of the particular case. Stipulations of fact agreed upon by the parties may be used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. In any case, the Board may require evidence in addition to that offered by the parties.</P>
          <P>(b) Witnesses before the Board are examined orally under oath or affirmation, unless the facts are stipulated, or the Board otherwise orders.</P>
        </SECTION>
        <SECTION>
          <SECTNO>6302.24</SECTNO>
          <SUBJECT>Subpoenas (Rule 24).</SUBJECT>
          <P>(a) <E T="03">General.</E> Every subpoena shall state the name of the Board and the title of the appeal and shall command each person to whom it is directed to attend and give testimony, and, if appropriate, to produce books, papers, documents, or tangible things, at a time and place therein specified. Subpoenas (including those calling for the production of documentary evidence) are signed by an Administrative Judge or by the Recorder of the Board but otherwise left blank when furnished to the party requesting the subpoena. The party to whom the subpoena is issued shall fill it in before service.</P>
          <P>(b) <E T="03">Subpoenas for attendance at hearing.</E> At the request of any party, subpoenas for the attendance of witnesses at a hearing are issued. A subpoena requiring the attendance of a witness at a hearing may be served at any place within 100 miles of the place of he