[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2000 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
48
Chapter 1 (Parts 1 to 51)
Revised as of October 1, 2000
Federal Acquisition Regulations System
Containing a Codification of documents
of general applicability and future effect
As of October 1, 2000
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
As a Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 1--Federal Acquisition Regulation 3
Finding Aids:
Table of CFR Titles and Chapters........................ 1039
Alphabetical List of Agencies Appearing in the CFR...... 1057
List of CFR Sections Affected........................... 1067
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 1.000 refers
to title 48, part 1,
section 000.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2000.
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System 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, 2000.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The first volume, containing chapter 1 (parts 1 to 51), includes an
index to the Federal acquisition regulations.
For this volume, Ruth Reedy Green was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapter 1, parts 1 to 51)
--------------------------------------------------------------------
Part
chapter 1--Federal Acquisition Regulation................... 1
[[Page 3]]
CHAPTER 1--FEDERAL ACQUISITION REGULATION
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SUBCHAPTER A--GENERAL
Part Page
1 Federal Acquisition Regulations System...... 5
2 Definitions of words and terms.............. 20
3 Improper business practices and personal
conflicts of interest................... 26
4 Administrative matters...................... 52
SUBCHAPTER B--ACQUISITION PLANNING
5 Publicizing contract actions................ 68
6 Competition requirements.................... 82
7 Acquisition planning........................ 94
8 Required sources of supplies and services... 109
9 Contractor qualifications................... 126
10 Market research............................. 159
11 Describing agency needs..................... 161
12 Acquisition of commercial items............. 173
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
13 Simplified acquisition procedures........... 186
14 Sealed bidding.............................. 203
15 Contracting by negotiation.................. 232
16 Types of contracts.......................... 282
17 Special contracting methods................. 308
18 [Reserved]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
19 Small business programs..................... 322
20-21 [Reserved]
22 Application of labor laws to Government
acquisitions............................ 379
23 Environment, conservation, occupational
safety, and drug-free workplace......... 438
24 Protection of privacy and freedom of
information............................. 449
[[Page 4]]
25 Foreign acquisition......................... 451
26 Other socioeconomic programs................ 474
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
27 Patents, data, and copyrights............... 478
28 Bonds and insurance......................... 518
29 Taxes....................................... 539
30 Cost accounting standards administration.... 545
31 Contract cost principles and procedures..... 553
32 Contract financing.......................... 610
33 Protests, disputes, and appeals............. 678
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
34 Major system acquisition.................... 692
35 Research and development contracting........ 695
36 Construction and architect-engineer
contracts............................... 705
37 Service contracting......................... 725
38 Federal supply schedule contracting......... 737
39 Acquisition of information technology....... 738
40 [Reserved]
41 Acquisition of utility services............. 741
SUBCHAPTER G--CONTRACT MANAGEMENT
42 Contract administration and audit services.. 751
43 Contract modifications...................... 785
44 Subcontracting policies and procedures...... 790
45 Government property......................... 797
46 Quality assurance........................... 837
47 Transportation.............................. 856
48 Value engineering........................... 890
49 Termination of contracts.................... 898
50 Extraordinary contractual actions........... 942
51 Use of Government sources by contractors.... 951
FAR Index................................... 957
Editorial Note: The Federal Acquisition Regulations Index also follows
the text of Chapter 1 in 48 CFR Chapter 1, Parts 52-99.
[[Page 5]]
SUBCHAPTER A--GENERAL
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM--Table of Contents
Sec.
1.000 Scope of part.
Subpart 1.1--Purpose, Authority, Issuance
1.101 Purpose.
1.102 Statement of guiding principles for the Federal Acquisition
System.
1.102-1 Discussion.
1.102-2 Performance standards.
1.102-3 Acquisition team.
1.102-4 Role of the acquisition team.
1.103 Authority.
1.104 Applicability.
1.105 Issuance.
1.105-1 Publication and code arrangement.
1.105-2 Arrangement of regulations.
1.105-3 Copies.
1.106 OMB approval under the Paperwork Reduction Act.
1.107 Certifications.
1.108 FAR conventions.
Subpart 1.2--Administration
1.201 Maintenance of the FAR.
1.201-1 The two councils.
1.201-2 FAR Secretariat.
1.202 Agency compliance with the FAR.
Subpart 1.3--Agency Acquisition Regulations
1.301 Policy.
1.302 Limitations.
1.303 Publication and codification.
1.304 Agency control and compliance procedures.
Subpart 1.4--Deviations from the FAR
1.400 Scope of subpart.
1.401 Definition.
1.402 Policy.
1.403 Individual deviations.
1.404 Class deviations.
1.405 Deviations pertaining to treaties and executive agreements.
Subpart 1.5--Agency and Public Participation
1.501 Solicitation of agency and public views.
1.501-1 Definition.
1.501-2 Opportunity for public comments.
1.501-3 Exceptions.
1.502 Unsolicited proposed revisions.
1.503 Public meetings.
Subpart 1.6--Career Development, Contracting Authority, and
Responsibilities
1.601 General.
1.602 Contracting officers.
1.602-1 Authority.
1.602-2 Responsibilities.
1.602-3 Ratification of unauthorized commitments.
1.603 Selection, appointment, and termination of appointment.
1.603-1 General.
1.603-2 Selection.
1.603-3 Appointment.
1.603-4 Termination.
Subpart 1.7--Determinations and Findings
1.700 Scope of subpart.
1.701 Definition.
1.702 General.
1.703 Class determinations and findings.
1.704 Content.
1.705 Supersession and modification.
1.706 Expiration.
1.707 Signatory authority.
Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C.
2473(c).
Source: 48 FR 42103, Sept. 19, 1983, unless otherwise noted.
Sec. 1.000 Scope of part.
This part sets forth basic policies and general information about
the Federal Acquisition Regulations System including purpose, authority,
applicability, issuance, arrangement, numbering, dissemination,
implementation, supplementation, maintenance, administration, and
deviation. Subparts 1.2, 1.3, and 1.4 prescribe administrative
procedures for maintaining the FAR System.
Subpart 1.1--Purpose, Authority, Issuance
Sec. 1.101 Purpose.
The Federal Acquisition Regulations System is established for the
codification and publication of uniform policies and procedures for
acquisition by all executive agencies. The Federal Acquisition
Regulations System consists of the Federal Acquisition Regulation (FAR),
which is the primary document, and agency acquisition regulations that
implement or supplement the
[[Page 6]]
FAR. The FAR System does not include internal agency guidance of the
type described in 1.301(a)(2).
[48 FR 42103, Sept. 19, 1983, as amended at 51 FR 27116, July 29, 1986]
Sec. 1.102 Statement of guiding principles for the Federal Acquisition System.
(a) The vision for the Federal Acquisition System is to deliver on a
timely basis the best value product or service to the customer, while
maintaining the public's trust and fulfilling public policy objectives.
Participants in the acquisition process should work together as a team
and should be empowered to make decisions within their area of
responsibility.
(b) The Federal Acquisition System will--
(1) Satisfy the customer in terms of cost, quality, and timeliness
of the delivered product or service by, for example--
(i) Maximizing the use of commercial products and services;
(ii) Using contractors who have a track record of successful past
performance or who demonstrate a current superior ability to perform;
and
(iii) Promoting competition;
(2) Minimize administrative operating costs;
(3) Conduct business with integrity, fairness, and openness; and
(4) Fulfill public policy objectives.
(c) The Acquisition Team consists of all participants in Government
acquisition including not only representatives of the technical, supply,
and procurement communities but also the customers they serve, and the
contractors who provide the products and services.
(d) The role of each member of the Acquisition Team is to exercise
personal initiative and sound business judgment in providing the best
value product or service to meet the customer's needs. In exercising
initiative, Government members of the Acquisition Team may assume if a
specific strategy, practice, policy or procedure is in the best
interests of the Government and is not addressed in the FAR nor
prohibited by law (statute or case law), Executive order or other
regulation, that the strategy, practice, policy or procedure is a
permissible exercise of authority.
[60 FR 34733, July 3, 1995]
Sec. 1.102-1 Discussion.
(a) Introduction. The statement of Guiding Principles for the
Federal Acquisition System (System) represents a concise statement
designed to be user-friendly for all participants in Government
acquisition. The following discussion of the principles is provided in
order to illuminate the meaning of the terms and phrases used. The
framework for the System includes the Guiding Principles for the System
and the supporting policies and procedures in the FAR.
(b) Vision. All participants in the System are responsible for
making acquisition decisions that deliver the best value product or
service to the customer. Best value must be viewed from a broad
perspective and is achieved by balancing the many competing interests in
the System. The result is a system which works better and costs less.
[60 FR 34733, July 3, 1995]
Sec. 1.102-2 Performance standards.
(a) Satisfy the customer in terms of cost, quality, and timeliness
of the delivered product or service. (1) The principal customers for the
product or service provided by the System are the users and line
managers, acting on behalf of the American taxpayer.
(2) The System must be responsive and adaptive to customer needs,
concerns, and feedback. Implementation of acquisition policies and
procedures, as well as consideration of timeliness, quality and cost
throughout the process, must take into account the perspective of the
user of the product or service.
(3) When selecting contractors to provide products or perform
services the Government will use contractors who have a track record of
successful past performance or who demonstrate a current superior
ability to perform.
(4) The Government must not hesitate to communicate with the
commercial sector as early as possible in the
[[Page 7]]
acquisition cycle to help the Government determine the capabilities
available in the commercial marketplace. The Government will maximize
its use of commercial products and services in meeting Government
requirements.
(5) It is the policy of the System to promote competition in the
acquisition process.
(6) The System must perform in a timely, high quality, and cost-
effective manner.
(7) All members of the Team are required to employ planning as an
integral part of the overall process of acquiring products or services.
Although advance planning is required, each member of the Team must be
flexible in order to accommodate changing or unforeseen mission needs.
Planning is a tool for the accomplishment of tasks, and application of
its discipline should be commensurate with the size and nature of a
given task.
(b) Minimize administrative operating costs. (1) In order to ensure
that maximum efficiency is obtained, rules, regulations, and policies
should be promulgated only when their benefits clearly exceed the costs
of their development, implementation, administration, and enforcement.
This applies to internal administrative processes, including reviews,
and to rules and procedures applied to the contractor community.
(2) The System must provide uniformity where it contributes to
efficiency or where fairness or predictability is essential. The System
should also, however, encourage innovation, and local adaptation where
uniformity is not essential.
(c) Conduct business with integrity, fairness, and openness. (1) An
essential consideration in every aspect of the System is maintaining the
public's trust. Not only must the System have integrity, but the actions
of each member of the Team must reflect integrity, fairness, and
openness. The foundation of integrity within the System is a competent,
experienced, and well-trained, professional workforce. Accordingly each
member of the Team is responsible and accountable for the wise use of
public resources as well as acting in a manner which maintains the
public's trust. Fairness and openness require open communication among
team members, internal and external customers, and the public.
(2) To achieve efficient operations, the System must shift its focus
from ``risk avoidance'' to one of ``risk management.'' The cost to the
taxpayer of attempting to eliminate all risk is prohibitive. The
Executive Branch will accept and manage the risk associated with
empowering local procurement officials to take independent action based
on their professional judgment.
(3) The Government shall exercise discretion, use sound business
judgment, and comply with applicable laws and regulations in dealing
with contractors and prospective contractors. All contractors and
prospective contractors shall be treated fairly and impartially but need
not be treated the same.
(d) Fulfill public policy objectives. The System must support the
attainment of public policy goals adopted by the Congress and the
President. In attaining these goals, and in its overalll operations, the
process shall ensure the efficient use of public resources.
[60 FR 34734, July 3, 1995, as amended at 62 FR 51229, Sept. 30, 1997]
Sec. 1.102-3 Acquisition team.
The purpose of defining the Federal Acquisition Team (Team) in the
Guiding Principles is to ensure that participants in the System are
identified--beginning with the customer and ending with the contractor
of the product or service. By identifying the team members in this
manner, teamwork, unity of purpose, and open communication among the
members of the Team in sharing the vision and achieving the goal of the
System are encouraged. Individual team members will participate in the
acquisition process at the appropriate time.
[60 FR 34734, July 3, 1995]
Sec. 1.102-4 Role of the acquisition team.
(a) Government members of the Team must be empowered to make
acquisition decisions within their areas of responsibility, including
selection, negotiation, and administration of contracts consistent with
the Guiding
[[Page 8]]
Principles. In particular, the contracting officer must have the
authority to the maximum extent practicable and consistent with law, to
determine the application of rules, regulations, and policies, on a
specific contract.
(b) The authority to make decisions and the accountability for the
decision made will be delegated to the lowest level within the System,
consistent with law.
(c) The Team must be prepared to perform the functions and duties
assigned. The Government is committed to provide training, professional
development, and other resources necessary for maintaining and improving
the knowledge, skills, and abilities for all Government participants on
the Team, both with regard to their particular area of responsibility
within the System, and their respective role as a team member. The
contractor community is encouraged to do likewise.
(d) The System will foster cooperative relationships between the
Government and its contractors consistent with its overriding
responsibility to the taxpayers.
(e) The FAR outlines procurement policies and procedures that are
used by members of the Acquisition Team. If a policy or procedure, or a
particular strategy or practice, is in the best interest of the
Government and is not specifically addressed in the FAR, nor prohibited
by law (statute or case law), Executive order or other regulation,
Government members of the Team should not assume it is prohibited.
Rather, absence of direction should be interpreted as permitting the
Team to innovative and use sound business judgment that is otherwise
consistent with law and within the limits of their authority.
Contracting officers should take the lead in encouraging business
process innovations and ensuring that business decisions are sound.
[60 FR 34734, July 3, 1995, as amended at 62 FR 44804, Aug. 22, 1997]
Sec. 1.103 Authority.
(a) The development of the FAR System is in accordance with the
requirements of the Office of Federal Procurement Policy Act of 1974
(Pub. L. 93-400), as amended by Pub. L. 96-83.
(b) The FAR is prepared, issued, and maintained, and the FAR System
is prescribed, jointly by the Secretary of Defense, the Administrator of
General Services, and the Administrator, National Aeronautics and Space
Administration, under their several statutory authorities.
[48 FR 42103, Sept. 19, 1983, as amended at 51 FR 27116, July 29, 1986.
Redesignated at 60 FR 34733, July 3, 1995, as amended at 65 FR 36014,
June 6, 2000]
Sec. 1.104 Applicability.
The FAR applies to all acquisitions as defined in part 2 of the FAR,
except where expressly excluded.
[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995]
Sec. 1.105 Issuance.
Sec. 1.105-1 Publication and code arrangement.
(a) The FAR is published in (1) the daily issue of the Federal
Register, (2) cumulated form in the Code of Federal Regulations (CFR),
and (3) a separate loose-leaf edition.
(b) The FAR is issued as Chapter 1 of Title 48, CFR. Subsequent
chapters are reserved for agency acquisition regulations that implement
or supplement the FAR (see subpart 1.3). The CFR Staff will assign
chapter numbers to requesting agencies.
(c) Each numbered unit or segment (e.g., part, subpart, section,
etc.) of an agency acquisition regulation that is codified in the CFR
shall begin with the chapter number. However, the chapter number
assigned to the FAR will not be included in the numbered units or
segments of the FAR.
[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995]
Sec. 1.105-2 Arrangement of regulations.
(a) General. The FAR is divided into subchapters, parts (each of
which covers a separate aspect of acquisition), subparts, sections, and
subsections.
(b) Numbering. (1) The numbering system permits the discrete
identification of every FAR paragraph. The digits to the left of the
decimal point represent the part number. The numbers to the right of the
decimal point and to the
[[Page 9]]
left of the dash, represent, in order, the subpart (one or two digits),
and the section (two digits). The number to the right of the dash
represents the subsection. Subdivisons may be used at the section and
subsection level to identify individual paragraphs. The following
example illustrates the make-up of a FAR number citation (note that
subchapters are not used with citations):
[GRAPHIC] [TIFF OMITTED] TC03AP91.000
(2) Subdivisions below the section or subsection level consist of
parenthetical alpha numerics using the following sequence:
(a)(1)(i)(A)(1)(i).
(c) References and citations. (1) Unless otherwise stated, cross-
references indicate parts, subparts, sections, subsections, paragraphs,
subparagraphs, or subdivisions of this regulation.
(2) This regulation may be referred to as the Federal Acquisition
Regulation or the FAR.
(3) Using the FAR coverage at 9.106-4(d) as a typical illustration,
reference to the--
(i) Part would be ``FAR Part 9'' outside the FAR and ``Part 9''
within the FAR.
(ii) Subpart would be ``FAR Subpart 9.1'' outside the FAR and
``Subpart 9.1'' within the FAR.
(iii) Section would be ``FAR 9.106'' outside the FAR and ``9.106''
within the FAR.
(iv) Subsection would be ``FAR 9.106-4'' outside the FAR and
``9.106-4'' within the FAR.
(v) Paragraph would be ``FAR 9.106-4(d)'' outside the FAR and
``9.106-4(d)'' within the FAR.
(4) Citations of authority (e.g., statutes or executive orders) in
the FAR shall follow the Federal Register form guides.
[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995,
as amended at 65 FR 36015, June 6, 2000]
Sec. 1.105-3 Copies.
Copies of the FAR in Federal Register, loose-leaf, CD-ROM and CFR
form may be purchased from the Superintendent of Documents, Government
Printing Office (GPO), Washington, DC 20402.
[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995,
as amended at 62 FR 40236, July 25, 1997]
Sec. 1.106 OMB approval under the Paperwork Reduction Act.
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) imposes a
requirement on Federal agencies to obtain approval from the Office of
Management and Budget (OMB) before collecting information from 10 or
more members of the public. The information collection and recordkeeping
requirements contained in this regulation have been approved by the OMB.
The following OMB control numbers apply:
------------------------------------------------------------------------
OMB control
FAR segment No.
------------------------------------------------------------------------
3.103...................................................... 9000-0018
3.4........................................................ 9000-0003
4.102...................................................... 9000-0033
4.7........................................................ 9000-0034
4.9........................................................ 9000-0097
4.602...................................................... 9000-0145
4.603...................................................... 9000-0145
5.405...................................................... 9000-0036
7.2........................................................ 9000-0082
8.5........................................................ 9000-0113
9.1........................................................ 9000-0011
9.2........................................................ 9000-0020
14.201..................................................... 9000-0034
14.202-4................................................... 9000-0040
14.202-5................................................... 9000-0039
14.205..................................................... 9000-0002
14.205-4(c)................................................ 9000-0037
14.214..................................................... 9000-0105
14.407..................................................... 9000-0038
14.5....................................................... 9000-0041
15.2....................................................... 9000-0037
15.209..................................................... 9000-0034
15.4....................................................... 9000-0013
15.404-1(f)................................................ 9000-0080
15.407-2................................................... 9000-0078
15.408..................................................... 9000-0115
19.7....................................................... 9000-0006
19.12...................................................... 9000-0150
22.103..................................................... 9000-0065
22.8....................................................... 1215-0072
22.11...................................................... 9000-0066
22.13...................................................... 1215-0072
22.14...................................................... 1215-0072
23.9....................................................... 9000-0139
23.602..................................................... 9000-0107
27.3....................................................... 9000-0095
27.4....................................................... 9000-0090
28.1....................................................... 9000-0045
28.2....................................................... 9000-0045
29.304..................................................... 9000-0059
30.6....................................................... 9000-0129
[[Page 10]]
31.205-46.................................................. 9000-0079
31.205-46(a)(3)............................................ 9000-0088
32......................................................... 9000-0035
32.000..................................................... 9000-0138
32.1....................................................... 9000-0070
and
9000-0138
32.2....................................................... 9000-0138
32.4....................................................... 9000-0073
32.5....................................................... 9000-0010
and
9000-0138
32.7....................................................... 9000-0074
32.9....................................................... 9000-0102
32.10...................................................... 9000-0138
33......................................................... 9000-0035
34.1....................................................... 9000-0132
36.213-2................................................... 9000-0037
36.603..................................................... 9000-0004
and
9000-0005
36.701..................................................... 9000-0037
41.202(c).................................................. 9000-0125
42.7....................................................... 9000-0013
42.12...................................................... 9000-0076
42.13...................................................... 9000-0076
42.14...................................................... 9000-0056
43.205(f).................................................. 9000-0026
45......................................................... 9000-0075
46......................................................... 9000-0077
47......................................................... 9000-0061
48......................................................... 9000-0027
49......................................................... 9000-0028
50......................................................... 9000-0029
51.1....................................................... 9000-0031
51.2....................................................... 9000-0032
52.203-2................................................... 9000-0018
52.203-7................................................... 9000-0091
52.204-3................................................... 9000-0097
52.204-6................................................... 9000-0145
52.207-3................................................... 9000-0114
52.212-3................................................... 9000-0136
52.214-14.................................................. 9000-0047
52.214-15.................................................. 9000-0044
52.214-16.................................................. 9000-0044
52.214-21.................................................. 9000-0039
52.214-26.................................................. 9000-0034
52.214-28.................................................. 9000-0013
52.215-1(c)(2)(iv)......................................... 9000-0048
52.215-1(d)................................................ 9000-0044
52.215-2................................................... 9000-0034
52.215-6................................................... 9000-0047
52.215-9................................................... 9000-0078
52.215-12.................................................. 9000-0013
52.215-13.................................................. 9000-0013
52.215-14.................................................. 9000-0080
52.215-19.................................................. 9000-0015
52.215-20.................................................. 9000-0013
52.215-21.................................................. 9000-0013
52.216-2................................................... 9000-0068
52.216-3................................................... 9000-0068
52.216-4................................................... 9000-0068
52.216-5................................................... 9000-0071
52.216-6................................................... 9000-0071
52.216-7................................................... 9000-0069
52.216-10.................................................. 9000-0067
52.216-13.................................................. 9000-0069
52.216-15.................................................. 9000-0069
52.216-16.................................................. 9000-0067
52.216-17.................................................. 9000-0067
52.219-9................................................... 9000-0006
52.219-10.................................................. 9000-0006
52.219-19.................................................. 9000-0100
52.219-20.................................................. 9000-0100
52.219-21.................................................. 9000-0100
52.219-22.................................................. 9000-0150
52.219-23.................................................. 9000-0150
52.219-25.................................................. 9000-0150
52.222-2................................................... 9000-0065
52.222-4................................................... 1215-0119
52.222-6................................................... 1215-0140
52.222-8................................................... 1215-0149
and
1215-0017
52.222-11.................................................. 9000-0014
52.222-18.................................................. 9000-0127
52.222-21.................................................. 1215-0072
52.222-22.................................................. 1215-0072
52.222-23.................................................. 1215-0072
52.222-25.................................................. 1215-0072
52.222-26.................................................. 1215-0072
52.222-27.................................................. 1215-0072
52.222-35.................................................. 1215-0072
52.222-36.................................................. 1215-0072
52.222-41.................................................. 1215-0017
and
1215-0150
52.222-46.................................................. 9000-0066
52.223-4................................................... 9000-0134
52.223-5................................................... 9000-0147
52.223-6(b)(5)............................................. 9000-0101
52.233-7................................................... 9000-0117
52.223-9................................................... 9000-0134
52.223-13.................................................. 9000-0139
52.223-14.................................................. 9000-0139
52.225-2................................................... 9000-0023
and
9000-0024
52.225-4................................................... 9000-0130
52.225-6................................................... 9000-0025
52.225-8................................................... 9000-0022
52.225-9................................................... 9000-0141
52.225-11.................................................. 9000-0141
52.227-14.................................................. 9000-0090
52.227-15.................................................. 9000-0090
52.227-16.................................................. 9000-0090
52.227-17.................................................. 9000-0090
52.227-18.................................................. 9000-0090
52.227-19.................................................. 9000-0090
52.227-20.................................................. 9000-0090
52.227-21.................................................. 9000-0090
52.227-22.................................................. 9000-0090
52.227-23.................................................. 9000-0090
52.228-1................................................... 9000-0045
52.228-2................................................... 9000-0045
52.228-12.................................................. 9000-0135
52.228-13.................................................. 9000-0045
52.228-15.................................................. 9000-0045
52.228-16.................................................. 9000-0045
52.229-2................................................... 9000-0059
52.230-6................................................... 9000-0129
52.232-1................................................... 9000-0070
52.232-2................................................... 9000-0070
52.232-3................................................... 9000-0070
52.232-4................................................... 9000-0070
52.232-5................................................... 9000-0070
52.232-6................................................... 9000-0070
52.232-7................................................... 9000-0070
52.232-8................................................... 9000-0070
52.232-9................................................... 9000-0070
52.232-10.................................................. 9000-0070
52.232-11.................................................. 9000-0070
52.232-12.................................................. 9000-0073
52.232-13.................................................. 9000-0010
52.232-14.................................................. 9000-0010
52.232-15.................................................. 9000-0010
[[Page 11]]
52.232-16.................................................. 9000-0010
52.232-20.................................................. 9000-0074
52.232-21.................................................. 9000-0074
52.232-22.................................................. 9000-0074
52.232-27.................................................. 9000-0102
52.232-29.................................................. 9000-0138
52.232-30.................................................. 9000-0138
52.232-31.................................................. 9000-0138
52.232-32.................................................. 9000-0138
52.233-1................................................... 9000-0035
52.234-1................................................... 9000-0133
52.236-5................................................... 9000-0062
52.236-13.................................................. 1220-0029
and
9000-0060
52.236-15.................................................. 9000-0058
52.236-19.................................................. 9000-0064
52.241-1................................................... 9000-0126
52.241-3................................................... 9000-0122
52.241-7................................................... 9000-0123
52.241-13.................................................. 9000-0124
52.242-12.................................................. 9000-0056
52.243-1................................................... 9000-0026
52.243-2................................................... 9000-0026
52.243-3................................................... 9000-0026
52.243-4................................................... 9000-0026
52.243-6................................................... 9000-0026
52.243-7................................................... 9000-0026
52.245-2................................................... 9000-0075
52.245-3................................................... 9000-0075
52.245-5................................................... 9000-0075
52.245-7................................................... 9000-0075
52.245-8................................................... 9000-0075
52.245-9................................................... 9000-0075
52.245-10.................................................. 9000-0075
52.245-11.................................................. 9000-0075
52.245-16.................................................. 9000-0075
52.245-17.................................................. 9000-0075
52.245-18.................................................. 9000-0075
52.246-2................................................... 9000-0077
52.246-3................................................... 9000-0077
52.246-4................................................... 9000-0077
52.246-5................................................... 9000-0077
52.246-6................................................... 9000-0077
52.246-7................................................... 9000-0077
52.246-8................................................... 9000-0077
52.246-10.................................................. 9000-0077
52.246-12.................................................. 9000-0077
52.246-15.................................................. 9000-0077
52.247-2................................................... 9000-0053
52.247-29.................................................. 9000-0061
52.247-30.................................................. 9000-0061
52.247-31.................................................. 9000-0061
52.247-32.................................................. 9000-0061
52.247-33.................................................. 9000-0061
52.247-34.................................................. 9000-0061
52.247-35.................................................. 9000-0061
52.247-36.................................................. 9000-0061
52.247-37.................................................. 9000-0061
52.247-38.................................................. 9000-0061
52.247-39.................................................. 9000-0061
52.247-40.................................................. 9000-0061
52.247-41.................................................. 9000-0061
52.247-42.................................................. 9000-0061
52.247-43.................................................. 9000-0061
52.247-44.................................................. 9000-0061
52.247-48.................................................. 9000-0061
52.247-51.................................................. 9000-0057
52.247-53.................................................. 9000-0055
52.247-57.................................................. 9000-0061
52.247-63.................................................. 9000-0054
52.247-64.................................................. 9000-0061
52.248-1................................................... 9000-0027
52.248-2................................................... 9000-0027
52.248-3................................................... 9000-0027
52.249-2................................................... 9000-0028
52.249-3................................................... 9000-0028
52.249-5................................................... 9000-0028
52.249-6................................................... 9000-0028
52.249-11.................................................. 9000-0028
52.250-1................................................... 9000-0029
53.236-1(a)................................................ 9000-0037
SF 24...................................................... 9000-0045
SF 25...................................................... 9000-0045
SF 25-A.................................................... 9000-0045
SF 28...................................................... 9000-0001
SF 34...................................................... 9000-0045
SF 35...................................................... 9000-0045
SF 129..................................................... 9000-0002
SF 254..................................................... 9000-0004
SF 255..................................................... 9000-0005
SF 273..................................................... 9000-0045
SF 274..................................................... 9000-0045
SF 275..................................................... 9000-0045
SF 294..................................................... 9000-0006
SF 295..................................................... 9000-0007
SF 312..................................................... 9000-0150
SF 1403.................................................... 9000-0011
SF 1404.................................................... 9000-0011
SF 1405.................................................... 9000-0011
SF 1406.................................................... 9000-0011
SF 1407.................................................... 9000-0011
SF 1408.................................................... 9000-0011
SF 1413.................................................... 9000-0014
SF 1416.................................................... 9000-0045
SF 1417.................................................... 9000-0037
SF 1418.................................................... 9000-0045
SF 1423.................................................... 9000-0015
SF 1424.................................................... 9000-0015
SF 1426.................................................... 9000-0015
SF 1427.................................................... 9000-0015
SF 1428.................................................... 9000-0015
SF 1429.................................................... 9000-0015
SF 1430.................................................... 9000-0015
SF 1431.................................................... 9000-0015
SF 1432.................................................... 9000-0015
SF 1433.................................................... 9000-0015
SF 1434.................................................... 9000-0015
SF 1435.................................................... 9000-0012
SF 1436.................................................... 9000-0012
SF 1437.................................................... 9000-0012
SF 1438.................................................... 9000-0012
SF 1439.................................................... 9000-0012
SF 1440.................................................... 9000-0012
SF 1443.................................................... 9000-0010
SF 1444.................................................... 9000-0089
SF 1445.................................................... 9000-0089
SF 1446.................................................... 9000-0089
SF 1449.................................................... 9000-0136
------------------------------------------------------------------------
[[Page 12]]
[59 FR 67065, Dec. 28, 1994. Redesignated at 60 FR 34733, 34736, July 3,
1995, as amended at 60 FR 42650, 42665, Aug. 16, 1995; 60 FR 48211,
Sept. 18, 1995; 60 FR 49710, Sept. 26, 1995; 61 FR 18916, Apr. 29, 1996;
61 FR 39188, July 26, 1996; 61 FR 67410, 67430, Dec. 20, 1996; 61 FR
69287, Dec. 31, 1996; 62 FR 227, 235, 271, Jan. 2, 1997; 62 FR 44806,
44810, Aug. 22, 1997; 62 FR 51229, 51270, Sept. 30, 1997; 63 FR 9050,
9051, Feb. 23, 1998; 63 FR 35720, June 30, 1998; 63 FR 36121, July 1,
1998; 63 FR 58602, Oct. 30, 1998; 63 FR 70292, Dec. 18, 1998; 64 FR
10532, 10549, Mar. 4, 1999; 64 FR 32748, June 17, 1999; 64 FR 51850,
Sept. 24, 1999; 64 FR 72416, 72417, Dec. 27, 1999; 65 FR 16286, Mar. 27,
2000]
Sec. 1.107 Certifications.
In accordance with Section 29 of the Office of Federal Procurement
Policy Act (41 U.S.C. 425), as amended by Section 4301 of the Clinger-
Cohen Act of 1996 (Public Law 104-106), a new requirement for a
certification by a contractor or offeror may not be included in this
chapter unless--
(a) The certification requirement is specifically imposed by
statute; or
(b) Written justification for such certification is provided to the
Administrator for Federal Procurement Policy by the Federal Acquisition
Regulatory Council, and the Administrator approves in writing the
inclusion of such certification requirement.
[62 FR 44813, Aug. 22, 1997]
Sec. 1.108 FAR conventions.
The following conventions provide guidance for interpreting the FAR:
(a) Words and terms. Definitions in Part 2 apply to the entire
regulation unless specifically defined in another part, subpart,
section, provision, or clause. Words or terms defined in a specific
part, subpart, section, provision, or clause have that meaning when used
in that part, subpart, section, provision, or clause. Undefined words
retain their common dictionary meaning.
(b) Delegation of authority. Each authority is delegable unless
specifically stated otherwise (see 1.102-4(b)).
(c) Dollar thresholds. Unless otherwise specified, a specific dollar
threshold for the purpose of applicability is the final anticipated
dollar value of the action, including the dollar value of all options.
If the action establishes a maximum quantity of supplies or services to
be acquired or establishes a ceiling price or establishes the final
price to be based on future events, the final anticipated dollar value
must be the highest final priced alternative to the Government,
including the dollar value of all options.
(d) Application of FAR changes to solicitations and contracts.
Unless otherwise specified--
(1) FAR changes apply to solicitations issued on or after the
effective date of the change;
(2) Contracting officers may, at their discretion, include the FAR
changes in solicitations issued before the effective date, provided
award of the resulting contract(s) occurs on or after the effective
date; and
(3) Contracting officers may, at their discretion, include the
changes in any existing contract with appropriate consideration.
(e) Citations. When the FAR cites a statute, Executive order, Office
of Management and Budget circular, Office of Federal Procurement Policy
policy letter, or relevant portion of the Code of Federal Regulations,
the citation includes all applicable amendments, unless otherwise
stated.
(f) Imperative sentences. When an imperative sentence directs
action, the contracting officer is responsible for the action, unless
another party is expressly cited.
[65 FR 36015, June 6, 2000]
Subpart 1.2--Administration
Sec. 1.201 Maintenance of the FAR.
Sec. 1.201-1 The two councils.
(a) Subject to the authorities discussed in 1.103, revisions to the
FAR will be prepared and issued through the coordinated action of two
councils, the Defense Acquisition Regulations Council (DAR Council) and
the Civilian Agency Acquisition Council (CAA Council). Members of these
councils shall--
(1) Represent their agencies on a full-time basis;
(2) Be selected for their superior qualifications in terms of
acquisition experience and demonstrated professional expertise; and
(3) Be funded by their respective agencies.
[[Page 13]]
(b) The chairperson of the CAA Council shall be the representative
of the Administrator of General Services. The other members of this
council shall be one each representative from the (1) Departments of
Agriculture, Commerce, Energy, Health and Human Services, Interior,
Labor, State, Transportation, and Treasury, and (2) Environmental
Protection Agency, Social Security Administration, Small Business
Administration, and Department of Veterans Affairs.
(c) The Director of the DAR Council shall be the representative of
the Secretary of Defense. The operation of the DAR Council will be as
prescribed by the Secretary of Defense. Membership shall include
representatives of the military Departments, the Defense Logistics
Agency, and the National Aeronautics and Space Administration.
(d) Responsibility for processing revisions to the FAR is
apportioned by the two councils so that each council has cognizance over
specified parts or subparts.
(e) Each council shall be responsible for--
(1) Agreeing on all revisions with the other council;
(2) Submitting to the FAR Secretariat (see 1.201-2) the information
required under paragraphs 1.501-2(b) and (e) for publication in the
Federal Register of a notice soliciting comments on a proposed revision
to the FAR;
(3) Considering all comments received in response to notice of
proposed revisions;
(4) Arranging for public meetings;
(5) Preparing any final revision in the appropriate FAR format and
language; and
(6) Submitting any final revision to the FAR Secretariat for
publication in the Federal Register and printing for distribution.
[48 FR 42103, Sept. 19, 1983, as amended at 50 FR 2269, Jan. 15, 1985;
50 FR 26903, June 28, 1985; 51 FR 2649, Jan. 17, 1986; 54 FR 29280, July
11, 1989; 62 FR 64940, Dec. 9, 1997; 63 FR 9069, Feb. 23, 1998; 65 FR
16286, Mar. 27, 2000]
Sec. 1.201-2 FAR Secretariat.
(a) The General Services Administration is responsible for
establishing and operating the FAR Secretariat to print, publish, and
distribute the FAR through the Code of Federal Regulations system
(including a loose-leaf edition with periodic updates).
(b) Additionally, the FAR Secretariat shall provide the two councils
with centralized services for--
(1) Keeping a synopsis of current FAR cases and their status;
(2) Maintaining official files;
(3) Assisting parties interested in reviewing the files on completed
cases; and
(4) Performing miscellaneous administrative tasks pertaining to the
maintenance of the FAR.
[48 FR 42103, Sept. 19, 1983, as amended at 62 FR 40236, July 25, 1997]
Sec. 1.202 Agency compliance with the FAR.
Agency compliance with the FAR (see 1.304) is the responsibility of
the Secretary of Defense (for the military departments and defense
agencies), the Administrator of General Services (for civilian agencies
other than NASA), and the Administrator of NASA (for NASA activities).
Subpart 1.3--Agency Acquisition Regulations
Sec. 1.301 Policy.
(a)(1) Subject to the authorities in paragraph (c) below and other
statutory authority, an agency head may issue or authorize the issuance
of agency acquisition regulations that implement or supplement the FAR
and incorporate, together with the FAR, agency policies, procedures,
contract clauses, solicitation provisions, and forms that govern the
contracting process or otherwise control the relationship between the
agency, including any of its suborganizations, and contractors or
prospective contractors.
(2) Subject to the authorities in (c) below and other statutory
authority, an agency head may issue or authorize the issuance of
internal agency guidance at any organizational level (e.g., designations
and delegations of authority, assignments of responsibilities, work-flow
procedures, and internal reporting requirements).
[[Page 14]]
(b) Agency heads shall establish procedures to ensure that agency
acquisition regulations are published for comment in the Federal
Register in conformance with the procedures in subpart 1.5 and as
required by section 22 of the Office of Federal Procurement Policy Act,
as amended (41 U.S.C. 418b), and other applicable statutes, when they
have a significant effect beyond the internal operating procedures of
the agency or have a significant cost or administrative impact on
contractors or offerors. However, publication is not required for
issuances that merely implement or supplement higher level issuances
that have previously undergone the public comment process, unless such
implementation or supplementation results in an additional significant
cost or administrative impact on contractors or offerors or effect
beyond the internal operating procedures of the issuing organization.
Issuances under 1.301(a)(2) need not be publicized for public comment.
(c) When adopting acquisition regulations, agencies shall ensure
that they comply with the Paperwork Reduction Act (44 U.S.C. 3501, et
seq.) as implemented in 5 CFR part 1320 (see 1.105) and the Regulatory
Flexibility Act (5 U.S.C. 601, et seq.). Normally, when a law requires
publication of a proposed regulation, the Regulatory Flexibility Act
applies and agencies must prepare written analyses or certifications as
provided in the law.
(d) Agency acquisition regulations implementing or supplementing the
FAR are, for--
(1) The military departments and defense agencies, issued subject to
the authority of the Secretary of Defense;
(2) NASA activities, issued subject to the authorities of the
Administrator of NASA; and
(3) The civilian agencies other than NASA, issued by the heads of
those agencies subject to the overall authority of the Administrator of
General Services or independent authority the agency may have.
[48 FR 42103, Sept. 19, 1983, as amended at 50 FR 2269, Jan. 15, 1985;
54 FR 5054, Jan. 31, 1989]
Sec. 1.302 Limitations.
Agency acquisition regulations shall be limited to--
(a) Those necessary to implement FAR policies and procedures within
the agency; and
(b) Additional policies, procedures, solicitation provisions, or
contract clauses that supplement the FAR to satisfy the specific needs
of the agency.
Sec. 1.303 Publication and codification.
(a) Agency-wide acquisition regulations shall be published in the
Federal Register as required by law, shall be codified under an assigned
chapter in Title 48, Code of Federal Regulations, and shall parallel the
FAR in format, arrangement, and numbering system (but see 1.104-1(c)).
Coverage in an agency acquisition regulation that implements a specific
part, subpart, section, or subsection of the FAR shall be numbered and
titled to correspond to the appropriate FAR number and title.
Supplementary material for which there is no counterpart in the FAR
shall be codified using chapter, part, subpart, section, or subsection
numbers of 70 and up (e.g., for the Department of Interior, whose
assigned chapter number in Title 48 is 14, part 1470, subpart 1401.70,
section 1401.370, or subsection 1401.301-70.)
(b) Issuances under 1.301(a)(2) need not be published in the Federal
Register.
[48 FR 42103, Sept. 19, 1983, as amended at 50 FR 2269, Jan. 15, 1985]
Sec. 1.304 Agency control and compliance procedures.
(a) Under the authorities of 1.301(d), agencies shall control and
limit issuance of agency acquisition regulations and, in particular,
local agency directives that restrain the flexibilities found in the
FAR, and shall establish formal procedures for the review of these
documents to assure compliance with this part 1.
(b) Agency acquisition regulations shall not--
(1) Unnecessarily repeat, paraphrase, or otherwise restate material
contained in the FAR or higher-level agency acquisition regulations; or
[[Page 15]]
(2) Except as required by law or as provided in subpart 1.4,
conflict or be inconsistent with FAR content.
(c) Agencies shall evaluate all regulatory coverage in agency
acquisition regulations to determine if it could apply to other
agencies. Coverage that is not peculiar to one agency shall be
recommended for inclusion in the FAR.
[48 FR 42103, Sept. 19, 1983, as amended at 61 FR 39190, July 26, 1996;
65 FR 16286, Mar. 27, 2000]
Subpart 1.4--Deviations from the FAR
Sec. 1.400 Scope of subpart.
This subpart prescribes the policies and procedures for authorizing
deviations from the FAR. Exceptions pertaining to the use of forms
prescribed by the FAR are covered in part 53 rather than in this
subpart.
Sec. 1.401 Definition.
Deviation means any one or combination of the following:
(a) The issuance or use of a policy, procedure, solicitation
provision (see definition in 52.101(a)), contract clause (see definition
in 52.101(a)), method, or practice of conducting acquisition actions of
any kind at any stage of the acquisition process that is inconsistent
with the FAR.
(b) The omission of any solicitation provision or contract clause
when its prescription requires its use.
(c) The use of any solicitation provision or contract clause with
modified or alternate language that is not authorized by the FAR (see
definitions of modification and alternate in 52.101(a)).
(d) The use of a solicitation provision or contract clause
prescribed by the FAR on a substantially as follows or substantially the
same as basis (see definitions in 52.101(a)), if such use is
inconsistent with the intent, principle, or substance of the
prescription or related coverage on the subject matter in the FAR.
(e) The authorization of lesser or greater limitations on the use of
any solicitation provision, contract clause, policy, or procedure
prescribed by the FAR.
(f) The issuance of policies or procedures that govern the
contracting process or otherwise control contracting relationships that
are not incorporated into agency acquisition regulations in accordance
with 1.301(a).
Sec. 1.402 Policy.
Unless precluded by law, executive order, or regulation, deviations
from the FAR may be granted as specified in this subpart when necessary
to meet the specific needs and requirements of each agency. The
development and testing of new techniques and methods of acquisition
should not be stifled simply because such action would require a FAR
deviation. The fact that deviation authority is required should not, of
itself, deter agencies in their development and testing of new
techniques and acquisition methods. Refer to 31.101 for instructions
concerning deviations pertaining to the subject matter of part 31,
Contract Cost Principles and Procedures. Deviations are not authorized
with respect to 30.201-3 and 30.201-4, or the requirements of the Cost
Accounting Standards Board (CASB) rules and regulations (48 CFR Chapter
99 (FAR Appendix)). Refer to 30.201-5 for instructions concerning
waivers pertaining to Cost Accounting Standards.
[48 FR 42103, Sept. 19, 1983, as amended at 52 FR 35612, Sept. 22, 1987;
62 FR 64914, Dec. 9, 1997]
Sec. 1.403 Individual deviations.
Individual deviations affect only one contracting action, and,
unless 1.405(e) is applicable, may be authorized by agency heads or
their designees. The justification and agency approval shall be
documented in the contract file.
[48 FR 42103, Sept. 19, 1983, as amended at 61 FR 67411, Dec. 20, 1996]
Sec. 1.404 Class deviations.
Class deviations affect more than one contracting action. When it is
known that a class deviation will be required on a permanent basis, an
agency should propose an appropriate FAR revision to cover the matter.
For civilan agencies other than NASA, a copy of each approved class
deviation shall be furnished to the FAR Secretariat.
[[Page 16]]
(a) For civilian agencies except NASA, class deviations may be
authorized by agency heads or their designees, unless 1.405(e) is
applicable. Delegation of this authority shall not be made below the
head of a contracting activity. Authorization of class deviations by
agency officials is subject to the following limitations:
(1) An agency official who may authorize a class deviation, before
doing so, shall consult with the chairperson of the Civilian Agency
Acquisition Council (CAA Council), unless that agency official
determines that urgency precludes such consultation.
(2) Recommended revisions to the FAR shall be transmitted to the FAR
Secretariat by agency heads or their designees for authorizing class
deviations.
(b) For DOD, class deviations shall be controlled, processed, and
approved in accordance with the Defense FAR Supplement.
(c) For NASA, class deviations shall be controlled and approved by
the Associate Administrator for Procurement. Deviations shall be
processed in accordance with agency regulations.
[48 FR 42103, Sept. 19, 1983, as amended at 56 FR 15148, Apr. 15, 1991;
59 FR 11387, March 10, 1994; 61 FR 67411, Dec. 20, 1996]
Sec. 1.405 Deviations pertaining to treaties and executive agreements.
(a) Executive agreements, as used in this section, means Government-
to-Government agreements, including agreements with international
organizations, to which the United States is a party.
(b) Any deviation from the FAR required to comply with a treaty to
which the United States is a party is authorized, unless the deviation
would be inconsistent with FAR coverage based on a law enacted after the
execution of the treaty.
(c) Any deviation from the FAR required to comply with an executive
agreement is authorized unless the deviation would be inconsistent with
FAR coverage based on law.
(d) For civilian agencies other than NASA, a copy of the text
deviation authorized under paragraph (b) or (c) of this section shall be
transmitted to the FAR Secretariat through a central agency control
point.
(e) For civilian agencies other than NASA, if a deviation required
to comply with a treaty or an executive agreement is not authorized by
paragraph (b) or (c) of this section, then the request for deviation
shall be processed through the FAR Secretariat to the Civilian Agency
Acquisition Council.
[48 FR 42103, Sept. 19, 1983, as amended at 61 FR 67411, Dec. 20, 1996]
Subpart 1.5--Agency and Public Participation
Source: 50 FR 2269, Jan. 15, 1985, unless otherwise noted.
Sec. 1.501 Solicitation of agency and public views.
Sec. 1.501-1 Definition.
Significant revisions, as used in this subpart, means revisions that
alter the substantive meaning of any coverage in the FAR System having a
significant cost or administrative impact on contractors or offerors, or
a significant effect beyond the internal operating procedures of the
issuing agency. This expression, for example, does not include
editorial, stylistic, or other revisions that have no impact on the
basic meaning of the coverage being revised.
Sec. 1.501-2 Opportunity for public comments.
(a) Views of agencies and nongovernmental parties or organizations
will be considered in formulating acquisition policies and procedures.
(b) The opportunity to submit written comments on proposed
significant revisions shall be provided by placing a notice in the
Federal Register. Each of these notices shall include--
(1) The text of the revision or, if it is impracticable to publish
the full text, a summary of the proposal;
(2) The address and telephone number of the individual from whom
copies of the revision, in full text, can be requested and to whom
comments thereon should be addressed; and
(3) When 1.501-3(b) is applicable, a statement that the revision is
effective on a temporary basis pending completion of the public comment
period.
[[Page 17]]
(c) A minimum of 30 days and, normally, at least 60 days will be
given for the receipt of comments.
Sec. 1.501-3 Exceptions.
(a) Comments need not be solicited when the proposed coverage does
not constitute a significant revision.
(b) Advance comments need not be solicited when urgent and
compelling circumstances make solicitation of comments impracticable
prior to the effective date of the coverage, such as when a new statute
must be implemented in a relatively short period of time. In such case,
the coverage shall be issued on a temporary basis and shall provide for
at least a 30 day public comment period.
Sec. 1.502 Unsolicited proposed revisions.
Consideration shall also be given to unsolicited recommendations for
revisions that have been submitted in writing with sufficient data and
rationale to permit their evaluation.
Sec. 1.503 Public meetings.
Public meetings may be appropriate when a decision to adopt, amend,
or delete coverage is likely to benefit from significant additional
views and discussion.
Subpart 1.6--Career Development, Contracting Authority, and
Responsibilities
Sec. 1.601 General.
(a) Unless specifically prohibited by another provision of law,
authority and responsibility to contract for authorized supplies and
services are vested in the agency head. The agency head may establish
contracting activities and delegate broad authority to manage the
agency's contracting functions to heads of such contracting activities.
Contracts may be entered into and signed on behalf of the Government
only by contracting officers. In some agencies, a relatively small
number of high level officials are designated contracting officers
solely by virtue of their positions. Contracting officers below the
level of a head of a contracting activity shall be selected and
appointed under 1.603.
(b) Agency heads may mutually agree to--
(1) Assign contracting functions and responsibilities from one
agency to another; and
(2) Create joint or combined offices to exercise acquisition
functions and responsibilities.
[60 FR 49721, Sept. 26, 1995]
Sec. 1.602 Contracting officers.
Sec. 1.602-1 Authority.
(a) Contracting officers have authority to enter into, administer,
or terminate contracts and make related determinations and findings.
Contracting officers may bind the Government only to the extent of the
authority delegated to them. Contracting officers shall receive from the
appointing authority (see 1.603-1) clear instructions in writing
regarding the limits of their authority. Information on the limits of
the contracting officers' authority shall be readily available to the
public and agency personnel.
(b) No contract shall be entered into unless the contracting officer
ensures that all requirements of law, executive orders, regulations, and
all other applicable procedures, including clearances and approvals,
have been met.
Sec. 1.602-2 Responsibilities.
Contracting officers are responsible for ensuring performance of all
necessary actions for effective contracting, ensuring compliance with
the terms of the contract, and safeguarding the interests of the United
States in its contractual relationships. In order to perform these
responsibilities, contracting officers should be allowed wide latitude
to exercise business judgment. Contracting officers shall--
(a) Ensure that the requirements of 1.602-1(b) have been met, and
that sufficient funds are available for obligation;
(b) Ensure that contractors receive impartial, fair, and equitable
treatment; and
(c) Request and consider the advice of specialists in audit, law,
engineering, transportation, and other fields, as appropriate.
[[Page 18]]
Sec. 1.602-3 Ratification of unauthorized commitments.
(a) Definitions.
Ratification, as used in this subsection, means the act of approving
an unauthorized commitment by an official who has the authority to do
so.
Unauthorized commitment, as used in this subsection, means an
agreement that is not binding solely because the Government
representative who made it lacked the authority to enter into that
agreement on behalf of the Government.
(b) Policy. (1) Agencies should take positive action to preclude, to
the maximum extent possible, the need for ratification actions. Although
procedures are provided in this section for use in those cases where the
ratification of an unauthorized commitment is necessary, these
procedures may not be used in a manner that encourages such commitments
being made by Government personnel.
(2) Subject to the limitations in paragraph (c) of this subsection,
the head of the contracting activity, unless a higher level official is
designated by the agency, may ratify an unauthorized commitment.
(3) The ratification authority in subparagraph (b)(2) of this
subsection may be delegated in accordance with agency procedures, but in
no case shall the authority be delegated below the level of chief of the
contracting office.
(4) Agencies should process unauthorized commitments using the
ratification authority of this subsection instead of referring such
actions to the General Accounting Office for resolution. (See 1.602-
3(d).)
(5) Unauthorized commitments that would involve claims subject to
resolution under the Contract Disputes Act of 1978 should be processed
in accordance with subpart 33.2, Disputes and Appeals.
(c) Limitations. The authority in subparagraph (b)(2) of this
subsection may be exercised only when--
(1) 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;
(2) The ratifying official has the authority to enter into a
contractual commitment;
(3) The resulting contract would otherwise have been proper if made
by an appropriate contracting officer;
(4) The contracting officer reviewing the unauthorized commitment
determines the price to be fair and reasonable;
(5) The contracting officer recommends payment and legal counsel
concurs in the recommendation, unless agency procedures expressly do not
require such concurrence;
(6) Funds are available and were available at the time the
unauthorized commitment was made; and
(7) The ratification is in accordance with any other limitations
prescribed under agency procedures.
(d) Nonratifiable commitments. Cases that are not ratifiable under
this subsection may be subject to resolution as recommended by the
General Accounting Office under its claim procedure (GAO Policy and
Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2),
or as authorized by FAR part 50. Legal advice should be obtained in
these cases.
[53 FR 3689, Feb. 8, 1988, as amended at 60 FR 48225, Sept. 18, 1995]
Sec. 1.603 Selection, appointment, and termination of appointment.
Sec. 1.603-1 General.
Subsection 414(4) of title 41, United States Code, requires agency
heads to establish and maintain a procurement career management program
and a system for the selection, appointment, and termination of
appointment of contracting officers. Agency heads or their designees may
select and appoint contracting officers and terminate their
appointments. These selections and appointments shall be consistent with
Office of Federal Procurement Policy's (OFPP) standards for skill-based
training in performing contracting and purchasing duties as published in
OFPP Policy Letter No. 92-3, Procurement Professionalism Program
Policy--Training for Contracting Personnel, June 24, 1992.
[59 FR 67015, Dec. 28, 1994]
[[Page 19]]
Sec. 1.603-2 Selection.
In selecting contracting officers, the appointing official shall
consider the complexity and dollar value of the acquisitions to be
assigned and the candidate's experience, training, education, business
acumen, judgment, character, and reputation. Examples of selection
criteria include--
(a) Experience in Government contracting and administration,
commercial purchasing, or related fields;
(b) Education or special training in business administration, law,
accounting, engineering, or related fields;
(c) Knowledge of acquisition policies and procedures, including this
and other applicable regulations;
(d) Specialized knowledge in the particular assigned field of
contracting; and
(e) Satisfactory completion of acquisition training courses.
Sec. 1.603-3 Appointment.
(a) Contracting officers shall be appointed in writing on an SF
1402, Certificate of Appointment, which shall state any limitations on
the scope of authority to be exercised, other than limitations contained
in applicable law or regulation. Appointing officials shall maintain
files containing copies of all appointments that have not been
terminated.
(b) Agency heads are encouraged to delegate micro-purchase authority
to individuals who are employees of an executive agency or members of
the Armed Forces of the United States who will be using the supplies or
services being purchased. Individuals delegated this authority are not
required to be appointed on an SF 1402, but shall be appointed in
writing in accordance with agency procedures.
[61 FR 39190, July 26, 1996]
Sec. 1.603-4 Termination.
Termination of a contracting officer appointment will be by letter,
unless the Certificate of Appointment contains other provisions for
automatic termination. Terminations may be for reasons such as
reassignment, termination of employment, or unsatisfactory performance.
No termination shall operate retroactively.
Subpart 1.7--Determinations and Findings
Source: 50 FR 1726, Jan. 11, 1985 (interim rule), and 50 FR 52429,
Dec. 23, 1985 (final rule), unless otherwise noted.
Sec. 1.700 Scope of subpart.
This subpart prescribes general policies and procedures for the use
of determinations and findings (D&F's). Requirements for specific types
of D&F's can be found with the appropriate subject matter.
Sec. 1.701 Definition.
Determination and Findings (D&F) means a special form of written
approval by an authorized official that is required by statute or
regulation as a prerequisite to taking certain contracting actions. The
determination is a conclusion or decision supported by the findings. The
findings are statements of fact or rationale essential to support the
determination and must cover each requirement of the statute or
regulation.
Sec. 1.702 General.
(a) A D&F shall ordinarily be for an individual contract action.
Unless otherwise prohibited, class D&F's may be executed for classes of
contract action (see 1.703). The approval granted by a D&F is restricted
to the proposed contract action(s) reasonably described in that D&F.
D&F's may provided for a reasonable degree of flexibility. Furthermore,
in their application, reasonable variations in estimated quantities or
prices are permitted, unless the D&F specifies otherwise.
(b) When an option is anticipated, the D&F shall state the
approximate quantity to be awarded initially and the extent of the
increase to be permitted by the option.
Sec. 1.703 Class determinations and findings.
(a) A class D&F provides authority for a class of contracting
actions. A class may consist of contracting actions for the same or
related supplies or services or other contracting actions that require
essentially identical justification.
[[Page 20]]
(b) The findings in a class D&F shall fully support the proposed
action either for the class as a whole or for each action. A class D&F
shall be for a specified period, with the expiration date stated in the
document.
(c) The contracting officer shall ensure that individual actions
taken pursuant to the authority of a class D&F are within the scope of
the D&F.
Sec. 1.704 Content.
Each D&F shall set forth enough facts and circumstances to clearly
and convincingly justify the specific determination made. As a minimum,
each D&F shall include, in the prescribed agency format, the following
information:
(a) Identification of the agency and of the contracting activity and
specific identifications of the document as a Determination and
Findings.
(b) Nature and/or description of the action being approved.
(c) Citation of the appropriate statute and/or regulation upon which
the D&F is based.
(d) Findings that detail the particular circumstances, facts, or
reasoning essential to support the determination. Necessary supporting
documentation shall be obtained from appropriate requirements and
technical personnel.
(e) A determination, based on the findings, that the proposed action
is justified under the applicable statute or regulation.
(f) Expiration date of the D&F, if required (see 1.706(b)).
(g) The signature of the official authorized to sign the D&F (see
1.706) and the date signed.
Sec. 1.705 Supersession and modification.
(a) If a D&F is superseded by another D&F, that action shall not
render invalid any action taken under the original D&F prior to the date
of its supersession.
(b) A modification of the D&F will not require cancellation of the
solicitation if the D&F, as modified, supports the contracting action.
Sec. 1.706 Expiration.
Expiration dates are required for class D&F's and are optional for
individual D&F's. Authority to act under an individual D&F expires when
it is exercised or on an expiration date specified in the document,
whichever occurs first. Authority to act under a class D&F expires on
the expiration date specified in the document. When a solicitation has
been furnished to prospective offerors before the expiration date, the
authority under the D&F will continue until award of the contract(s)
resulting from that solicitation.
Sec. 1.707 Signatory authority.
When a D&F is required, it shall be signed by the appropriate
official in accordance with agency regulations. Authority to sign or
delegate signature authority for the various D&F's is as shown in the
applicable FAR part.
PART 2--DEFINITIONS OF WORDS AND TERMS--Table of Contents
Sec.
2.000 Scope of part.
Subpart 2.1--Definitions
2.101 Definitions.
Subpart 2.2--Definitions Clause
2.201 Contract clause.
Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C.
2473(c).
Source: 48 FR 42107, Sept. 19, 1983, unless otherwise noted.
Sec. 2.000 Scope of part.
This part defines words and terms commonly used in this regulation.
Other terms are defined in the part or subpart with which they are
particularly associated (see the Index for locations).
Subpart 2.1--Definitions
Sec. 2.101 Definitions.
As used throughout this regulation, the following words and terms
are used as defined in this subpart unless (a) the context in which they
are used clearly requires a different meaning or (b) a different
definition is prescribed for a particular part or portion of a part.
Acquisition means the acquiring by contract with appropriated funds
of
[[Page 21]]
supplies or services (including construction) by and for the use of the
Federal Government through purchase or lease, whether the supplies or
services are already in existence or must be created, developed,
demonstrated, and evaluated. Acquisition begins at the point when agency
needs are established and includes the description of requirements to
satisfy agency needs, solicitation and selection of sources, award of
contracts, contract financing, contract performance, contract
administration, and those technical and management functions directly
related to the process of fulfilling agency needs by contract.
Advisory and assistance services means those services provided under
contract by nongovernmental sources to support or improve:
Organizational policy development; decision-making; management and
administration; program and/or project management and administration; or
R&D activities. It can also mean the furnishing of professional advice
or assistance rendered to improve the effectiveness of Federal
management processes or procedures (including those of an engineering
and technical nature). In rendering the foregoing services, outputs may
take the form of information, advice, opinions, alternatives, analyses,
evaluations, recommendations, training and the day-to-day aid of support
personnel needed for the successful performance of ongoing Federal
operations. All advisory and assistance services are classified in one
of the following definitional subdivisions:
(1) Management and professional support services, i.e., contractual
services that provide assistance, advice or training for the efficient
and effective management and operation of organizations, activities
(including management and support services for R&D activities), or
systems. These services are normally closely related to the basic
responsibilities and mission of the agency originating the requirement
for the acquisition of services by contract. Included are efforts that
support or contribute to improved organization of program management,
logistics management, project monitoring and reporting, data collection,
budgeting, accounting, performance auditing, and administrative
technical support for conferences and training programs.
(2) Studies, analyses and evaluations, i.e., contracted services
that provide organized, analytical assessments/evaluations in support of
policy development, decision-making, management, or administration.
Included are studies in support of R&D activities. Also included are
acquisitions of models, methodologies, and related software supporting
studies, analyses or evaluations.
(3) Engineering and technical services, i.e., contractual services
used to support the program office during the acquisition cycle by
providing such services as systems engineering and technical direction
(see 9.505-1(b)) to ensure the effective operation and maintenance of a
weapon system or major system as defined in OMB Circular No. A-109 or to
provide direct support of a weapon system that is essential to research,
development, production, operation or maintenance of the system.
Affiliates means associated business concerns or individuals if,
directly or indirectly, (a) either one controls or can control the other
or (b) a third party controls or can control both.
Agency head (see head of the agency).
Best value means the expected outcome of an acquisition that, in the
Government's estimation, provides the greatest overall benefit in
response to the requirement.
Bundled contract means a contract where the requirements have been
consolidated by bundling. (See the definition of bundling.)
Bundling means--
(1) Consolidating two or more requirements for supplies or services,
previously provided or performed under separate smaller contracts, into
a solicitation for a single contract that is likely to be unsuitable for
award to a small business concern due to--
(i) The diversity, size, or specialized nature of the elements of
the performance specified;
(ii) The aggregate dollar value of the anticipated award;
(iii) The geographical dispersion of the contract performance sites;
or
[[Page 22]]
(iv) Any combination of the factors described in paragraphs (1)(i),
(ii), and (iii) of this definition.
(2) Separate smaller contract, as used in this definition, means a
contract that has been performed by one or more small business concerns
or that was suitable for award to one or more small business concerns.
(3) This definition does not apply to a contract that will be
awarded and performed entirely outside of the United States.
Commercial component means any component that is a commercial item.
Commercial item means--
(a) Any item, other than real property, that is of a type
customarily used for nongovernmental purposes and that--
(1) Has been sold, leased, or licensed to the general public; or,
(2) Has been offered for sale, lease, or license to the general
public;
(b) Any item that evolved from an item described in paragraph (a) of
this definition through advances in technology or performance and that
is not yet available in the commercial marketplace, but will be
available in the commercial marketplace in time to satisfy the delivery
requirements under a Government solicitation;
(c) Any item that would satisfy a criterion expressed in paragraphs
(a) or (b) of this definition, but for--
(1) Modifications of a type customarily available in the commercial
marketplace; or
(2) Minor modifications of a type not customarily available in the
commercial marketplace made to meet Federal Government requirements.
``Minor'' modifications means modifications that do not significantly
alter the nongovernmental function or essential physical characteristics
of an item or component, or change the purpose of a process. Factors to
be considered in determining whether a modification is minor include the
value and size of the modification and the comparative value and size of
the final product. Dollar values and percentages may be used as
guideposts, but are not conclusive evidence that a modification is
minor;
(d) Any combination of items meeting the requirements of paragraphs
(a), (b), (c), or (e) of this definition that are of a type customarily
combined and sold in combination to the general public;
(e) Installation services, maintenance services, repair services,
training services, and other services if such services are procured for
support of an item referred to in paragraphs (a), (b), (c), or (d) of
this definition, and if the source of such services--
(1) Offers such services to the general public and the Federal
Government contemporaneously and under similar terms and conditions; and
(2) Offers to use the same work force for providing the Federal
Government with such services as the source uses for providing such
services to the general public;
(f) Services of a type offered and sold competitively in substantial
quantities in the commercial marketplace based on established catalog or
market prices for specific tasks performed under standard commercial
terms and conditions. This does not include services that are sold based
on hourly rates without an established catalog or market price for a
specific service performed;
(g) Any item, combination of items, or service referred to in
paragraphs (a) through (f), notwithstanding the fact that the item,
combination of items, or service is transferred between or among
separate divisions, subsidiaries, or affiliates of a contractor; or
(h) A nondevelopmental item, if the procuring agency determines the
item was developed exclusively at private expense and sold in
substantial quantities, on a competitive basis, to multiple State and
local governments.
Component means any item supplied to the Government as part of an
end item or of another component, except that for use in 52.225-9 and
52.225-11, see the definitions in 52.225-9(a) and 52.225-11(a).
Construction means construction, alteration, or repair (including
dredging, excavating, and painting) of buildings, structures, or other
real property. For purposes of this definition, the terms ``buildings,
structures, or other real property'' include, but are not limited to,
improvements of all types, such as
[[Page 23]]
bridges, dams, plants, highways, parkways, streets, subways, tunnels,
sewers, mains, power lines, cemeteries, pumping stations, railways,
airport facilities, terminals, docks, piers, wharves, ways, lighthouses,
buoys, jetties, breakwaters, levees, canals, and channels. Construction
does not include the manufacture, production, furnishing, construction,
alteration, repair, processing, or assembling of vessels, aircraft, or
other kinds of personal property.
Contract means a mutually binding legal relationship obligating the
seller to furnish the supplies or services (including construction) and
the buyer to pay for them. It includes all types of commitments that
obligate the Government to an expenditure of appropriated funds and
that, except as otherwise authorized, are in writing. In addition to
bilateral instruments, contracts include (but are not limited to) awards
and notices of awards; job orders or task letters issued under basic
ordering agreements; letter contracts; orders, such as purchase orders,
under which the contract becomes effective by written acceptance or
performance; and bilaterial contract modifications. Contracts do not
include grants and cooperative agreements covered by 31 U.S.C. 6301 et
seq. For discussion of various types of contracts, see part 16.
Contract administration office means an office that performs (a)
assigned postaward functions related to the administration of contracts
and (b) assigned preaward functions.
Contracting means purchasing, renting, leasing, or otherwise
obtaining supplies or services from nonfederal sources. Contracting
includes description (but not determination) of supplies and services
required, selection and solicitation of sources, preparation and award
of contracts, and all phases of contract administration. It does not
include making grants or cooperative agreements.
Contracting activity means an element of an agency designated by the
agency head and delegated broad authority regarding acquisition
functions.
Contracting office means an office that awards or executes a
contract for supplies or services and performs postaward functions not
assigned to a contract administration office.
Contracting officer 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. Administrative contracting officer
(ACO) refers to a contracting officer who is administering contracts.
Termination contracting officer (TCO) refers to a contracting officer
who is settling terminated contracts. A single contracting officer may
be responsible for duties in any or all of these areas. Reference in
this regulation to administrative contracting officer or termination
contracting officer does not (a) require that a duty be performed at a
particular office or activity or (b) restrict in any way a contracting
officer in the performance of any duty properly assigned.
Day means, unless otherwise specified, a calendar day.
Delivery order means an order for supplies placed against an
established contract or with Government sources.
Electronic commerce means electronic techniques for accomplishing
business transactions including electronic mail or messaging, World Wide
Web technology, electronic bulletin boards, purchase cards, electronic
funds transfer, and electronic data interchange.
End product means supplies delivered under a line item of a
Government contract.
Energy-efficient product means a product in the upper 25 percent of
efficiency for all similar products or, if there are applicable Federal
appliance or equipment efficiency standards, a product that is at least
10 percent more efficient than the minimum Federal standard.
Environmentally preferable means products or services that have a
lesser or reduced effect on human health and the environment when
compared with competing products or services that serve the same
purpose. This comparison may consider raw materials acquisition,
production, manufacturing,
[[Page 24]]
packaging, distribution, reuse, operation, maintenance, or disposal of
the product or service.
Executive agency means an executive department, a military
department, or any independent establishment within the meaning of 5
U.S.C. 101, 102, and 104(1), respectively, and any wholly owned
Government corporation within the meaning of 31 U.S.C. 9101.
Facsimile means electronic equipment that communicates and
reproduces both printed and handwritten material. If used in conjunction
with a reference to a document, e.g., facsimile bid, the term refers to
a document (in the example given, a bid) that has been transmitted to
and received by the Government via facsimile.
Federal Acquisition Computer Network (FACNET) Architecture is a
Governmentwide system that provides universal user access, employs
nationally and internationally recognized data formats, and allows the
electronic data interchange of acquisition information between the
private sector and the Federal Government. FACNET qualifies as the
single, Governmentwide point of entry pending designation by the
Administrator of the Office of Federal Procurement Policy (OFPP).
Federal agency means any executive agency or any independent
establishment in the legislative or judicial branch of the Government
(except the Senate, the House of Representatives, the Architect of the
Capitol, and any activities under the Architect's direction).
Head of the agency (also called agency head) means the Secretary,
Attorney General, Administrator, Governor, Chairperson, or other chief
official of an executive agency, unless otherwise indicated, including
any deputy or assistant chief official of an executive agency; and the
term authorized representative means any person, persons, or board
(other than the contracting officer) authorized to act for the head of
the agency or Secretary.
Head of the contracting activity includes the official who has
overall responsibility for managing the contracting activity.
Information technology means any equipment, or interconnected
system(s) or subsystem(s) of equipment, that is used in the automatic
acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or reception of data or
information by the agency.
(a) For purposes of this definition, equipment is used by an agency
if the equipment is used by the agency directly or is used by a
contractor under a contract with the agency which--
(1) Requires the use of such equipment; or
(2) Requires the use, to a significant extent, of such equipment in
the performance of a service or the furnishing of a product.
(b) The term information technology includes computers, ancillary
equipment, software, firmware and similar procedures, services
(including support services), and related resources.
(c) The term information technology does not include--
(1) Any equipment that is acquired by a contractor incidental to a
contract; or
(2) Any equipment that contains imbedded information technology that
is used as an integral part of the product, but the principal function
of which is not the acquisition, storage, manipulation, management,
movement, control, display, switching, interchange, transmission, or
reception of data or information. For example, HVAC (heating,
ventilation, and air conditioning) equipment such as thermostats or
temperature control devices, and medical equipment where information
technology is integral to its operation, are not information technology.
In writing or written means any worded or numbered expression which
can be read, reproduced, and later communicated, and includes
electronically transmitted and stored information.
Major system means that combination of elements that will function
together to produce the capabilities required to fulfill a mission need.
The elements may include hardware, equipment, software, or any
combination thereof, but exclude construction or other improvements to
real property. A system shall be considered a major system if--
(a) The Department of Defense is responsible for the system and the
total
[[Page 25]]
expenditures for research, development, test, and evaluation for the
system are estimated to be more than $115,000,000 (based on fiscal year
1990 constant dollars) or the eventual total expenditure for the
acquisition exceeds $540,000,000 (based on fiscal year 1990 constant
dollars);
(b) A civilian agency is responsible for the system and total
expenditures for the system are estimated to exceed $750,000 (based on
fiscal year 1980 constant dollars) or the dollar threshold for a ``major
system'' established by the agency pursuant to Office of Management and
Budget Circular A-109, entitled ``Major System Acquisitions,'' whichever
is greater; or
(c) The system is designated a ``major system'' by the head of the
agency responsible for the system (10 U.S.C. 2302 and 41 U.S.C. 403).
Market research means collecting and analyzing information about
capabilities within the market to satisfy agency needs.
May denotes the permissive. However, the words no person may... mean
that no person is required, authorized, or permitted to do the act
described.
Micro-purchase means an acquisition of supplies or services (except
construction), the aggregate amount of which does not exceed $2,500,
except that in the case of construction, the limit is $2,000.
Micro-purchase threshold means $2,500.
National defense means any activity related to programs for military
or atomic energy production or construction, military assistance to any
foreign nation, stockpiling, or space.
Nondevelopmental item means--
(a) Any previously developed item of supply used exclusively for
governmental purposes by a Federal agency, a State or local government,
or a foreign government with which the United States has a mutual
defense cooperation agreement;
(b) Any item described in paragraph (a) of this definition that
requires only minor modification or modifications of a type customarily
available in the commercial marketplace in order to meet the
requirements of the procuring department or agency; or
(c) Any item of supply being produced that does not meet the
requirements of paragraph (a) or (b) solely because the item is not yet
in use.
Offer means a response to a solicitation that, if accepted, would
bind the offeror to perform the resultant contract. Responses to
invitations for bids (sealed bidding) are offers called bids or sealed
bids; responses to requests for proposals (negotiation) are offers
called proposals; responses to requests for quotations (negotiation) are
not offers and are called quotes. For unsolicited proposals, see subpart
15.6.
Pollution prevention means any practice that--
(a)(1) Reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal; and
(2) Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, and
contaminants;
(b) Reduces or eliminates the creation of pollutants through
increased efficiency in the use of raw materials, energy, water, or
other resources; or
(c) Protects natural resources by conservation.
Possessions includes the Virgin Islands, Johnston Island, American
Samoa, Guam, Wake Island, Midway Island, and the guano islands, but does
not include Puerto Rico, leased bases, or trust territories.
Recovered material means waste materials and by-products recovered
or diverted from solid waste, but the term does not include those
materials and by-products generated from, and commonly reused within, an
original manufacturing process. For use in Subpart 11.3 for paper and
paper products, see the definition at 11.301.
Senior procurement executive means the individual appointed pursuant
to section 16(3) of the Office of Federal Procurement Policy Act (41
U.S.C. 414(3)) who is responsible for management direction of the
acquisition system of the executive agency, including implementation of
the unique acquisition policies, regulations, and standards of the
executive agency.
Shall denotes the imperative.
[[Page 26]]
Signature or signed means the discrete, verifiable symbol of an
individual which, when affixed to a writing with the knowledge and
consent of the individual, indicates a present intention to authenticate
the writing. This includes electronic systems.
Simplified acquisition procedures means the methods prescribed in
part 13 for making purchases of supplies or services.
Simplified acquisition threshold means $100,000, except that in the
case of any contract to be awarded and performed, or purchase to be
made, outside the United States in support of a contingency operation
(as defined in 10 U.S.C. 101(a)(13)) or a humanitarian or peacekeeping
operation (as defined in 10 U.S.C. 2302(8) and 41 U.S.C. 259(d)), the
term means $200,000.
Supplies means all property except land or interest in land. It
includes (but is not limited to) public works, buildings, and
facilities; ships, floating equipment, and vessels of every character,
type, and description, together with parts and accessories; aircraft and
aircraft parts, accessories, and equipment; machine tools; and the
alteration or installation of any of the foregoing.
Task order means an order for services placed against an established
contract or with Government sources.
United States, when used in a geographic sense, means the 50 States
and the District of Columbia, except as follows:
(1) For use in Subpart 22.8, see the definition at 22.801.
(2) For use in Subpart 22.10, see the definition at 22.1001.
(3) For use in Part 25, see the definition at 25.003.
(4) For use in Subpart 47.4, see the definition at 47.401.
Virgin material means--
(a) Previously unused raw material, including previously unused
copper, aluminum, lead, zinc, iron, other metal or metal ore; or
(b) Any undeveloped resource that is, or with new technology will
become, a source of raw materials.
Waste reduction means preventing or decreasing the amount of waste
being generated through waste prevention, recycling, or purchasing
recycled and environmentally preferable products.
[48 FR 42107, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985;
50 FR 4221, Jan. 30, 1985; 50 FR 26903, June 28, 1985; 50 FR 52429, Dec.
23, 1985; 51 FR 2649, Jan. 17, 1986; 52 FR 19802, May 27, 1987; 54 FR
48981, Nov. 28, 1989; 56 FR 41744, Aug. 22, 1991; 60 FR 34736, July 3,
1995; 60 FR 42653, Aug. 16, 1995; 60 FR 48235, Sept. 18, 1995; 61 FR
39190, July 26, 1996; 61 FR 41468, Aug. 8, 1996; 61 FR 69288, Dec. 31,
1996; 62 FR 256, Jan. 2, 1997; 62 FR 51230, 51270, Sept. 30, 1997; 62 FR
64915, Dec. 9, 1997; 63 FR 58591, Oct. 30, 1998; 64 FR 72417, 72442,
72451, Dec. 27, 1999; 65 FR 24318, Apr. 25, 2000; 65 FR 36017, June 6,
2000; 65 FR 46054, July 26, 2000]
Subpart 2.2--Definitions Clause
Sec. 2.201 Contract clause.
The contracting officer shall insert the clause at 52.202-1,
Definitions, in solicitations and contracts except when the contract is
not expected to exceed the simplified acquisition threshold. If the
contract is for personal services, construction, architect-engineer
services, or dismantling, demolition, or removal of improvements, the
contracting officer shall use the clause with its Alternate I.
Additional definitions may be included, provided they are consistent
with the clause and the FAR.
[60 FR 34744, July 3, 1995, as amended at 61 FR 39190, July 26, 1996]
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents
Sec.
3.000 Scope of part.
Subpart 3.1--Safeguards
3.101 Standards of conduct.
3.101-1 General.
3.101-2 Solicitation and acceptance of gratuities by Government
personnel.
3.101-3 Agency regulations.
3.102 [Reserved]
3.103 Independent pricing.
3.103-1 Solicitation provision.
3.103-2 Evaluating the certification.
3.103-3 The need for further certifications.
3.104 Procurement integrity.
3.104-1 General.
3.104-2 Applicability.
3.104-3 Definitions.
3.104-4 Statutory and related prohibitions, restrictions, and
requirements.
[[Page 27]]
3.104-5 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
3.104-6 Disqualification.
3.104-7 Ethics advisory opinions regarding prohibitions on a former
official's acceptance of compensation from a contractor.
3.104-8 Calculating the period of compensation prohibition.
3.104-9 Contract clauses.
3.104-10 Violations or possible violations.
3.104-11 Criminal and civil penalties, and further administrative
remedies.
Subpart 3.2--Contractor Gratuities to Government Personnel
3.201 Applicability.
3.202 Contract clause.
3.203 Reporting suspected violations of the Gratuities clause.
3.204 Treatment of violations.
Subpart 3.3--Reports of Suspected Antitrust Violations
3.301 General.
3.302 Definitions.
3.303 Reporting suspected antitrust violations.
Subpart 3.4--Contingent Fees
3.400 Scope of subpart.
3.401 Definitions.
3.402 Statutory requirements.
3.403 Applicability.
3.404 Contract clause.
3.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
3.406 Records.
Subpart 3.5--Other Improper Business Practices
3.501 Buying-in.
3.501-1 Definition.
3.501-2 General.
3.502 Subcontractor kickbacks.
3.502-1 Definitions.
3.502-2 Subcontractor kickbacks.
3.502-3 Contract clause.
3.503 Unreasonable restrictions on subcontractor sales.
3.503-1 Policy.
3.503-2 Contract clause.
Subpart 3.6--Contracts With Government Employees or Organizations Owned
or Controlled by Them
3.601 Policy.
3.602 Exceptions.
3.603 Responsibilities of the contracting officer.
Subpart 3.7--Voiding and Rescinding Contracts
3.700 Scope of subpart.
3.701 Purpose.
3.702 Definition.
3.703 Authority.
3.704 Policy.
3.705 Procedures.
Subpart 3.8--Limitation on the Payment of Funds to Influence Federal
Transactions
3.800 Scope of subpart.
3.801 Definitions.
3.802 Prohibitions.
3.803 Certification and disclosure.
3.804 Policy.
3.805 Exemption.
3.806 Processing suspected violations.
3.807 Civil penalties.
3.808 Solicitation provision and contract clause.
Subpart 3.9--Whistleblower Protections for Contractor Employees
3.900 Scope of subpart.
3.901 Definitions.
3.902 Applicability.
3.903 Policy.
3.904 Procedures for filing complaints.
3.905 Procedures for investigating complaints.
3.906 Remedies.
Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C.
2473(c).
Source: 48 FR 42108, Sept. 19, 1983, unless otherwise noted.
Sec. 3.000 Scope of part.
This part prescribes policies and procedures for avoiding improper
business practices and personal conflicts of interest and for dealing
with their apparent or actual occurrence.
Subpart 3.1--Safeguards
Sec. 3.101 Standards of conduct.
Sec. 3.101-1 General.
Government business shall be conducted in a manner above reproach
and, except as authorized by statute or regulation, with complete
impartiality and with preferential treatment for none. Transactions
relating to the expenditure of public funds require the highest degree
of public trust and an impeccable standard of conduct. The general rule
is to avoid strictly any
[[Page 28]]
conflict of interest or even the appearance of a conflict of interest in
Government-contractor relationships. While many Federal laws and
regulations place restrictions on the actions of Government personnel,
their official conduct must, in addition, be such that they would have
no reluctance to make a full public disclosure of their actions.
Sec. 3.101-2 Solicitation and acceptance of gratuities by Government personnel.
As a rule, no Government employee may solicit or accept, directly or
indirectly, any gratuity, gift, favor, entertainment, loan, or anything
of monetary value from anyone who (a) has or is seeking to btain
Government business with the employee's agency, (b) conducts activities
that are regulated by the employee's agency, or (c) has interests that
may be substantially affected by the performance or nonperformance of
the employee's official duties. Certain limited exceptions are
authorized in agency regulations.
Sec. 3.101-3 Agency regulations.
(a) Agencies are required by Executive Order 11222 of May 8, 1965,
and 5 CFR part 735 to prescribe Standards of Conduct. These agency
standards contain--
(1) Agency-authorized exceptions to 3.101-2; and
(2) Disciplinary measures for persons violating the standards of
conduct.
(b) Requirements for employee financial disclosure and restrictions
on private employment for former Government employees are in Office of
Personnel Management and agency regulations implementing Public Law 95-
521, which amended 18 U.S.C. 207.
Sec. 3.102 [Reserved]
Sec. 3.103 Independent pricing.
Sec. 3.103-1 Solicitation provision.
The contracting officer shall insert the provision at 52.203-2,
Certificate of Independent Price Determination, in solicitations when a
firm-fixed-price contract or fixed-price contract with economic price
adjustment is contemplated, unless--
(a) The acquisition is to be made under the simplified acquisition
procedures in part 13;
(b) [Reserved]
(c) The solicitation is a request for technical proposals under two-
step sealed bidding procedures; or
(d) The solicitation is for utility services for which rates are set
by law or regulation.
[48 FR 42108, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 55 FR 25526, June 21, 1990; 60 FR 34744,
July 3, 1995]
Sec. 3.103-2 Evaluating the certification.
(a) Evaluation guidelines. (1) None of the following, in and of
itself, constitutes disclosure as it is used in subparagraph (a)(2) of
the Certificate of Independent Price Determination (hereafter, the
certificate):
(i) The fact that a firm has published price lists, rates, or
tariffs covering items being acquired by the Government.
(ii) The fact that a firm has informed prospective customers of
proposed or pending publication of new or revised price lists for items
being acquired by the Government.
(iii) The fact that a firm has sold the same items to commercial
customers at the same prices being offered to the Government.
(2) For the purpose of subparagraph (b)(2) of the certificate, an
individual may use a blanket authorization to act as an agent for the
person(s) responsible for determining the offered prices if--
(i) The proposed contract to which the certificate applies is
clearly within the scope of the authorization; and
(ii) The person giving the authorization is the person within the
offeror's organization who is responsible for determining the prices
being offered at the time the certification is made in the particular
offer.
(3) If an offer is submitted jointly by two or more concerns, the
certification provided by the representative of each concern applies
only to the activities of that concern.
(b) Rejection of offers suspected of being collusive. (1) If the
offeror deleted or modified subparagraph (a)(1) or (a)(3) or paragraph
(b) of the certificate, the
[[Page 29]]
contracting officer shall reject the offeror's bid or proposal.
(2) If the offeror deleted or modified subparagraph (a)(2) of the
certificate, the offeror must have furnished with its offer a signed
statement of the circumstances of the disclosure of prices contained in
the bid or proposal. The chief of the contracting office shall review
the altered certificate and the statement and shall determine, in
writing, whether the disclosure was made for the purpose or had the
effect of restricting competition. If the determination is positive, the
bid or proposal shall be rejected; if it is negative, the bid or
proposal shall be considered for award.
(3) Whenever an offer is rejected under subparagraph (1) or (2)
above, or the certificate is suspected of being false, the contracting
officer shall report the situation to the Attorney General in accordance
with 3.303.
(4) The determination made under subparagraph (2) above shall not
prevent or inhibit the prosecution of any criminal or civil actions
involving the occurrences or transactions to which the certificate
relates.
[48 FR 42108, Sept. 19, 1983, as amended at 55 FR 25526, June 21, 1990]
Sec. 3.103-3 The need for further certifications.
A contractor that properly executed the certificate before award
does not have to submit a separate certificate with each proposal to
perform a work order or similar ordering instrument issued pursuant to
the terms of the contract, where the Government's requirements cannot be
met from another source.
Sec. 3.104 Procurement integrity.
Sec. 3.104-1 General.
(a) This FAR section 3.104 implements section 27 of the Office of
Federal Procurement Policy Act (41 U.S.C. 423), as amended by section
814 of the Fiscal Year 1990/1991 National Defense Authorization Act,
Public Law 101-189, section 815 of the Fiscal Year 1991 National Defense
Authorization Act, Public Law 101-510, and section 4304 of the Fiscal
Year 1996 National Defense Authorization Act, Public Law 104-106
(hereinafter, the Office of Federal Procurement Policy Act, as amended,
is referred to as ``the Act''). Agencies may supplement 3.104 and any
clauses required by 3.104, and may use agency specific definitions to
identify individuals who occupy positions specified in 3.104-
4(d)(1)(ii). Such supplementation and definitions must be approved at a
level not lower than the senior procurement executive of the agency,
unless a higher level of approval is required by law for that agency.
(b) Agency employees are reminded that there are other statutes and
regulations that deal with the same or related prohibited conduct, for
example--
(1) The offer or acceptance of a bribe or gratuity is prohibited by
18 U.S.C. 201, 10 U.S.C. 2207, 5 U.S.C. 7353, and 5 CFR part 2635;
(2) Section 208 of Title 18, United States Code, and 5 CFR part 2635
preclude a Government employee from participating personally and
substantially in any particular matter that would affect the financial
interests of any person from whom the employee is seeking employment;
(3) Post-employment restrictions are covered by 18 U.S.C. 207 and 5
CFR parts 2637 and 2641, which prohibit certain activities by former
Government employees, including representation of a contractor before
the Government in relation to any contract or other particular matter
involving specific parties on which the former employee participated
personally and substantially while employed by the Government;
(4) Parts 14 and 15 place restrictions on the release of information
related to procurements and other contractor information which must be
protected under 18 U.S.C. 1905;
(5) Other laws such as the Privacy Act (5 U.S.C. 552a) and the Trade
Secrets Act (18 U.S.C. 1905) may preclude release of information both
before and after award (see 3.104-5); and
(6) Use of nonpublic information to further an employee's private
interest or that of another and engaging in a financial transaction
using nonpublic information are covered by 5 CFR 2635.703.
[62 FR 227, Jan. 2, 1997]
[[Page 30]]
Sec. 3.104-2 Applicability.
(a) The restrictions at 3.104-4 (a) and (b) apply beginning January
1, 1997, to the conduct of every Federal agency procurement using
competitive procedures for the acquisition of supplies or services from
non-Federal sources using appropriated funds.
(b) The requirements of 3.104-4(c) apply beginning January 1, 1997,
in connection with every Federal agency procurement using competitive
procedures, for a contract expected to exceed the simplified acquisition
threshold. Such requirements do not apply after the contract has been
awarded or the procurement has been canceled.
(c) The post-employment restrictions at 3.104-4(d) apply to any
former official of a Federal agency, for services provided or decisions
made on or after January 1, 1997.
(d) Former officials of a Federal agency whose employment by a
Federal agency ended before January 1, 1997, are subject to the
restrictions imposed by 41 U.S.C. 423 as it existed before Public Law
104-106. Solely for the purpose of continuing those restrictions on
those officials to the extent they were imposed prior to January 1,
1997, the provisions of 41 U.S.C. 423 as it existed before Public Law
104-106 apply through December 31, 1998.
[62 FR 227, Jan. 2, 1997]
Sec. 3.104-3 Definitions.
As used in this section--
Agency ethics official means the designated agency ethics official
described in 5 CFR 2638.201 and any other designated person, including--
(1) Deputy ethics officials described in 5 CFR 2638.204, to whom
authority under 3.104-7 has been delegated by the designated agency
ethics official; and
(2) Alternate designated agency ethics officials described in 5 CFR
2638.202(b).
Compensation means wages, salaries, honoraria, commissions,
professional fees, and any other form of compensation, provided directly
or indirectly for services rendered. Compensation is indirectly provided
if it is paid to an entity other than the individual, specifically in
exchange for services provided by the individual.
Contract, for purposes of the post-employment restrictions at 3.104-
4(d), includes both competitively awarded and non-competitively awarded
contracts.
Contractor bid or proposal information means any of the following
information submitted to a Federal agency as part of or in connection
with a bid or proposal to enter into a Federal agency procurement
contract, if that information has not been previously made available to
the public or disclosed publicly:
(1) Cost or pricing data (as defined by 10 U.S.C. 2306a(h) with
respect to procurements subject to that section, and section 304A(h) of
the Federal Property and Administrative Services Act of 1949 (41 U.S.C.
254b(h)), with respect to procurements subject to that section).
(2) Indirect costs and direct labor rates.
(3) Proprietary information about manufacturing processes,
operations, or techniques marked by the contractor in accordance with
applicable law or regulation.
(4) Information marked by the contractor as ``contractor bid or
proposal information'' in accordance with applicable law or regulation.
(5) Information marked in accordance with 52.215-1(e).
Decision to award a subcontract or modification of subcontract means
a decision to designate award to a particular source.
Federal agency has the meaning provided such term in section 3 of
the Federal Property and Administrative Services Act of 1949 (40 U.S.C.
472).
Federal agency procurement means the acquisition (by using
competitive procedures and awarding a contract) of goods or services
(including construction) from non-Federal sources by a Federal agency
using appropriated funds. For broad agency announcements and small
business innovative research programs, each proposal received by an
agency shall constitute a separate procurement for purposes of the Act.
In excess of $10,000,000 means--
(1) The value, or estimated value, at the time of award, of the
contract, including all options;
[[Page 31]]
(2) The total estimated value at the time of award of all orders
under an indefinite-delivery, indefinite-quantity, or requirements
contract;
(3) Any multiple award schedule contract unless the contracting
officer documents a lower estimate;
(4) The value of a delivery order, task order, or an order under a
Basic Ordering Agreement;
(5) The amount paid or to be paid in settlement of a claim; or
(6) The estimated monetary value of negotiated overhead or other
rates when applied to the Government portion of the applicable
allocation base.
Official means:
(1) An officer, as defined in 5 U.S.C. 2104.
(2) An employee, as defined in 5 U.S.C. 2105.
(3) A member of the uniformed services, as defined in 5 U.S.C.
2101(3).
(4) A special Government employee, as defined in 18 U.S.C. 202.
Participating personally and substantially in a Federal agency
procurement is defined as follows:
(1) Participating personally and substantially in a Federal agency
procurement means active and significant involvement of the individual
in any of the following activities directly related to that procurement:
(i) Drafting, reviewing, or approving the specification or statement
of work for the procurement.
(ii) Preparing or developing the solicitation.
(iii) Evaluating bids or proposals, or selecting a source.
(iv) Negotiating price or terms and conditions of the contract.
(v) Reviewing and approving the award of the contract.
(2) Participating ``personally'' means participating directly, and
includes the direct and active supervision of a subordinate's
participation in the matter.
(3) Participating ``substantially'' means that the employee's
involvement is of significance to the matter. Substantial participation
requires more than official responsibility, knowledge, perfunctory
involvement, or involvement on an administrative or peripheral issue.
Participation may be substantial even though it is not determinative of
the outcome of a particular matter. A finding of substantiality should
be based not only on the effort devoted to a matter, but on the
importance of the effort. While a series of peripheral involvements may
be insubstantial, the single act of approving or participating in a
critical step may be substantial. However, the review of procurement
documents solely to determine compliance with regulatory,
administrative, or budgetary procedures, does not constitute substantial
participation in a procurement.
(4) Generally, an individual will not be considered to have
participated personally and substantially in a procurement solely by
participating in the following activities:
(i) Agency level boards, panels, or other advisory committees that
review program milestones or evaluate and make recommendations regarding
alternative technologies or approaches for satisfying broad agency level
missions or objectives;
(ii) The performance of general, technical, engineering, or
scientific effort having broad application not directly associated with
a particular procurement, notwithstanding that such general, technical,
engineering, or scientific effort subsequently may be incorporated into
a particular procurement;
(iii) Clerical functions supporting the conduct of a particular
procurement; and
(iv) For procurements to be conducted under the procedures of OMB
Circular A-76, participation in management studies, preparation of in-
house cost estimates, preparation of ``most efficient organization''
analyses, and furnishing of data or technical support to be used by
others in the development of performance standards, statements of work,
or specifications.
Source selection evaluation board means any board, team, council, or
other group that evaluates bids or proposals.
Source selection information means any of the following information
which is prepared for use by a Federal agency for the purpose of
evaluating a bid or proposal to enter into a Federal agency procurement
contract, if that information has not been previously made
[[Page 32]]
available to the public or disclosed publicly:
(1) Bid prices submitted in response to a Federal agency invitation
for bids, or lists of those bid prices before bid opening.
(2) Proposed costs or prices submitted in response to a Federal
agency solicitation, or lists of those proposed costs or prices.
(3) Source selection plans.
(4) Technical evaluation plans.
(5) Technical evaluations of proposals.
(6) Cost or price evaluations of proposals.
(7) Competitive range determinations that identify proposals that
have a reasonable chance of being selected for award of a contract.
(8) Rankings of bids, proposals, or competitors.
(9) Reports and evaluations of source selection panels, boards, or
advisory councils.
(10) Other information marked as ``SOURCE SELECTION INFORMATION--SEE
FAR 3.104'' based on a case-by-case determination by the head of the
agency or designee, or the contracting officer, that its disclosure
would jeopardize the integrity or successful completion of the Federal
agency procurement to which the information relates.
[62 FR 227, Jan. 2, 1997; 62 FR 10709, Mar. 10, 1997, as amended at 62
FR 51270, Sept. 30, 1997]
Sec. 3.104-4 Statutory and related prohibitions, restrictions, and requirements.
(a) Prohibition on disclosing procurement information (subsection
27(a) of the Act). (1) A person described in paragraph (a)(2) of this
subsection shall not, other than as provided by law, knowingly disclose
contractor bid or proposal information or source selection information
before the award of a Federal agency procurement contract to which the
information relates. (See 3.104-5(a).)
(2) Paragraph (a)(1) of this subsection applies to any person who--
(i) Is a present or former official of the United States, or a
person who is acting or has acted for or on behalf of, or who is
advising or has advised the United States with respect to, a Federal
agency procurement; and
(ii) By virtue of that office, employment, or relationship, has or
had access to contractor bid or proposal information or source selection
information.
(b) Prohibition on obtaining procurement information (subsection
27(b) of the Act). A person shall not, other than as provided by law,
knowingly obtain contractor bid or proposal information or source
selection information before the award of a Federal agency procurement
contract to which the information relates.
(c) Actions required of agency officials when contacted by offerors
regarding non-Federal employment (subsection 27(c of the Act). If an
agency official who is participating personally and substantially in a
Federal agency procurement for a contract in excess of the simplified
acquisition threshold contacts or is contacted by a person who is a
bidder or offeror in that Federal agency procurement regarding possible
non-Federal employment for that official, the official shall--
(1) Promptly report the contact in writing to the official's
supervisor and to the designated agency ethics official (or designee) of
the agency in which the official is employed; and
(2)(i) Reject the possibility of non-Federal employment; or
(ii) Disqualify himself or herself from further personal and
substantial participation in that Federal agency procurement (see 3.104-
6) until such time as the agency has authorized the official to resume
participation in such procurement, in accordance with the requirements
of 18 U.S.C. 208 and applicable agency regulations, on the grounds
that--
(A) The person is no longer a bidder or offeror in that Federal
agency procurement; or
(B) All discussions with the bidder or offeror regarding possible
non-Federal employment have terminated without an agreement or
arrangement for employment.
(d) Prohibition on former official's acceptance of compensation from
a contractor (subsection 27(d) of the Act).
(1) A former official of a Federal agency may not accept
compensation
[[Page 33]]
from a contractor as an employee, officer, director, or consultant of
the contractor within a period of one year after such former official--
(i) Served, at the time of selection of the contractor or the award
of a contract to that contractor, as the procuring contracting officer,
the source selection authority, a member of a source selection
evaluation board, or the chief of a financial or technical evaluation
team in a procurement in which that contractor was selected for award of
a contract in excess of $10,000,000;
(ii) Served as the program manager, deputy program manager, or
administrative contracting officer for a contract in excess of
$10,000,000 awarded to that contractor; or
(iii) Personally made for the Federal agency--
(A) A decision to award a contract, subcontract, modification of a
contract or subcontract, or a task order or delivery order in excess of
$10,000,000 to that contractor;
(B) A decision to establish overhead or other rates applicable to a
contract or contracts for that contractor that are valued in excess of
$10,000,000;
(C) A decision to approve issuance of a contract payment or payments
in excess of $10,000,000 to that contractor; or
(D) A decision to pay or settle a claim in excess of $10,000,000
with that contractor.
(2) Nothing in paragraph (d)(1) of this subsection may be construed
to prohibit a former official of a Federal agency from accepting
compensation from any division or affiliate of a contractor that does
not produce the same or similar products or services as the entity of
the contractor that is responsible for the contract referred to in
paragraph (d)(1) of this subsection.
[62 FR 228, Jan. 2, 1997]
Sec. 3.104-5 Disclosure, protection, and marking of contractor bid or proposal information and source selection information.
(a) Except as specifically provided for in this subsection, no
person or other entity may disclose contractor bid or proposal
information or source selection information to any person other than a
person authorized, in accordance with applicable agency regulations or
procedures, by the head of the agency or designee, or the contracting
officer, to receive such information.
(b) Contractor bid or proposal information and source selection
information shall be protected from unauthorized disclosure in
accordance with 14.401, 15.207 applicable law, and agency regulations.
(c) In determining whether particular information is source
selection information, see the definition in 3.104-3 and consult with
agency officials as necessary. Individuals responsible for preparing
material that may be source selection information under paragraph (10)
of the definition shall mark the cover page and each page that the
individual believes contains source selection information with the
legend ``SOURCE SELECTION INFORMATION--SEE FAR 3.104.'' Although the
information in paragraphs (1) through (9) of the definition in 3.104-3
is considered to be source selection information whether or not marked,
all reasonable efforts shall be made to mark such material with the same
legend.
(d) Except as provided in subparagraph (d)(4) of this subsection, if
the contracting officer believes that information marked as proprietary
is not proprietary, information otherwise marked as contractor bid or
proposal information is not contractor bid or proposal information, or
information marked in accordance with 52.215-1(e) is inappropriately
marked, the contractor that has affixed the marking shall be notified in
writing and given an opportunity to justify the marking.
(1) If the contractor agrees that the marking is not justified, or
does not respond within the time specified in the notice, the
contracting officer may remove the marking and the information may be
released.
(2) If, after reviewing any justification submitted by the
contractor, the contracting officer determines that the marking is not
justified, the contracting officer shall notify the contractor in
writing.
(3) Information marked by the contractor as proprietary, otherwise
marked as contractor bid or proposal information, or marked in
accordance
[[Page 34]]
with 52.215-1(e), shall not be released until--
(i) The review of the contractor's justification has been completed;
or
(ii) The period specified for the contractor's response has elapsed,
whichever is earlier. Thereafter, the contracting officer may release
the information.
(4) With respect to technical data that are marked proprietary by a
contractor, the contracting officer shall generally follow the
procedures in 27.404(h).
(e) Nothing in this section restricts or prohibits--
(1) A contractor from disclosing its own bid or proposal information
or the recipient from receiving that information;
(2) The disclosure or receipt of information, not otherwise
protected, relating to a Federal agency procurement after it has been
canceled by the Federal agency, before contract award, unless the
Federal agency plans to resume the procurement;
(3) Individual meetings between a Federal agency official and an
offeror or potential offeror for, or a recipient of, a contract or
subcontract under a Federal agency procurement, provided that
unauthorized disclosure or receipt of contractor bid or proposal
information or source selection information does not occur; or
(4) The Government's use of technical data in a manner consistent
with the Government's rights in the data.
(f) Nothing in this section shall be construed to authorize--
(1) The withholding of any information pursuant to a proper request
from the Congress, any committee or subcommittee thereof, a Federal
agency, the Comptroller General, or an Inspector General of a Federal
agency, except as otherwise authorized by law or regulation. Any such
release which contains contractor bid or proposal information or source
selection information shall clearly notify the recipient that the
information or portions thereof are contractor bid or proposal
information or source selection information related to the conduct of a
Federal agency procurement, the disclosure of which is restricted by
section 27 of the Act;
(2) The withholding of information from, or restricting its receipt
by, the Comptroller General of the United States in the course of a
protest against the award or proposed award of a Federal agency
procurement contract;
(3) The release of information after award of a contract or
cancellation of a procurement if such information is contractor bid or
proposal information or source selection information which pertains to
another procurement; or
(4) The disclosure, solicitation, or receipt of bid or proposal
information or source selection information after award where such
disclosure, solicitation, or receipt is prohibited by law. See 3.104-
1(b)(5) and subpart 24.2.
[62 FR 229, Jan. 2, 1997, as amended at 62 FR 51270, Sept. 30, 1997]
Sec. 3.104-6 Disqualification.
(a) Contacts through agents. Disqualification pursuant to 3.104-
4(c)(2) may be required even where contacts are through an agent or
other intermediary of the agency official or an agent or other
intermediary of a bidder or offeror. See 18 U.S.C. 208 and 5 CFR
2635.603(c).
(b) Disqualification notice. In addition to submitting the contact
report required by 3.104-4(c)(1), an agency official who must disqualify
himself or herself pursuant to 3.104-4(c)(2)(ii) shall promptly submit
to the head of the contracting activity (HCA), or designee, a written
notice of disqualification from further participation in the
procurement. Concurrent copies of the notice shall be submitted to the
contracting officer, the source selection authority if the contracting
officer is not the source selection authority, and the agency fficial's
immediate supervisor. As a minimum, the notice shall--
(1) Identify the procurement;
(2) Describe the nature of the agency official's participation in
the procurement and specify the approximate dates or time period of
participation; and
(3) Identify the bidder or offeror and describe its interest in the
procurement.
(c) Resumption of participation in a procurement. (1) The individual
shall remain disqualified until such time as
[[Page 35]]
the agency has authorized the official to resume participation in the
procurement in accordance with 3.104-4(c)(2)(ii).
(2) Subsequent to a period of disqualification, if an agency wishes
to reinstate the agency official to participation in the procurement,
the HCA or designee may authorize immediate reinstatement or may
authorize reinstatement following whatever additional period of
disqualification the HCA determines is necessary to ensure the integrity
of the procurement process. In determining that any additional period of
disqualification is necessary, the HCA or designee shall consider any
factors that might give rise to an appearance that the agency official
acted without complete impartiality with respect to issues involved in
the procurement. The HCA or designee shall consult with the agency
ethics official in making a determination to reinstate an official.
Decisions to reinstate an employee should be in writing. It is within
the discretion of the HCA, or designee, to determine that the agency
official shall not be reinstated to participation in the procurement.
(3) An employee must comply with the provisions of 18 U.S.C. 208 and
5 CFR part 2635 regarding any resumed participation in a procurement
matter. An employee may not be reinstated to participate in a
procurement matter affecting the financial interest of someone with whom
he or she is seeking employment, unless he or she receives a waiver
pursuant to 18 U.S.C. 208(b)(1) or (b)(3) or an authorization in
accordance with the requirements of 5 CFR part 2635, as appropriate.
[62 FR 230, Jan. 2, 1997]
Sec. 3.104-7 Ethics advisory opinions regarding prohibitions on a former official's acceptance of compensation from a contractor.
(a) An official or former official of a Federal agency who does not
know whether he or she is or would be precluded by subsection 27(d) of
the Act (see 3.104-4(d)) from accepting compensation from a particular
contractor may request advice from the appropriate agency ethics
official prior to accepting such compensation.
(b) The request for an advisory opinion shall be submitted in
writing, shall be dated and signed, and shall include all information
reasonably available to the official or former official that is relevant
to the inquiry. As a minimum, the request shall include--
(1) Information about the procurement(s), or decision(s) on matters
under 3.104-4(d)(1)(iii), involving the particular contractor, in which
the individual was or is involved, including contract or solicitation
numbers, dates of solicitation or award, a description of the supplies
or services procured or to be procured, and contract amount;
(2) Information about the individual's participation in the
procurement or decision, including the dates or time periods of that
participation, and the nature of the individual's duties,
responsibilities, or actions; and
(3) Information about the contractor, including a description of the
products or services produced by the division or affiliate of the
contractor from whom the individual proposes to accept compensation.
(c) Within 30 days after the date a request containing complete
information is received, or as soon thereafter as practicable, the
agency ethics official shall issue an opinion as to whether the proposed
conduct is proper or would violate subsection 27(d) of the Act.
(d)(1) Where complete information is not included in the request,
the agency ethics official may ask the requester to provide any
information reasonably available to the requester. Additional
information may also be requested from other persons, including the
source selection authority, the contracting officer, or the requester's
immediate supervisor.
(2) In issuing an opinion, the agency ethics official may rely upon
the accuracy of information furnished by the requester or other agency
sources, unless he or she has reason to believe that the information is
fraudulent, misleading, or otherwise incorrect.
(3) If the requester is advised in a written opinion by the agency
ethics official that the requester may accept compensation from a
particular contractor, and accepts such compensation in good faith
reliance on that advisory
[[Page 36]]
opinion, then neither the requester nor the contractor shall be found to
have knowingly violated subsection 27(d) of the Act. If the requester or
the contractor has actual knowledge or reason to believe that the
opinion is based upon fraudulent, misleading, or otherwise incorrect
information, their reliance upon the opinion will not be deemed to be in
good faith.
[62 FR 230, Jan. 2, 1997]
Sec. 3.104-8 Calculating the period of compensation prohibition.
The 1-year prohibition on accepting compensation (see 3.104-4(d)(1))
begins to run as provided in this subsection:
(a) If the former official was serving in one of the positions
specified in 3.104-4(d)(1)(i) on the date of the selection of the
contractor, but not on the date of the award of the contract, the
prohibition begins on the date of the selection of the contractor.
(b) If the former official was serving in one of the positions
specified in 3.104-4(d)(1)(i) on the date of the award of the contract
(whether or not they were serving on the date of the selection of the
contractor), the prohibition begins on the date of the award of the
contract.
(c) If the former official was serving in one of the positions
specified in 3.104-4(d)(1)(ii), the prohibition begins on the last date
the individual served in that position.
(d) If the former official personally made one of the decisions
specified in 3.104-4(d)(1)(iii), the prohibition begins on the date the
decision was made.
[62 FR 231, Jan. 2, 1997]
Sec. 3.104-9 Contract clauses.
(a) The contracting officer shall insert the clause at 52.203-8,
Cancellation, Rescission, and Recovery of Funds for Illegal or Improper
Activity, in solicitations and contracts with a value exceeding the
simplified acquisition threshold.
(b) The contracting officer shall insert the clause at 52.203-10,
Price or Fee Adjustment for Illegal or Improper Activity, in
solicitations and contracts with a value exceeding the simplified
acquisition threshold.
[62 FR 231, Jan. 2, 197]
Sec. 3.104-10 Violations or possible violations.
(a) If the contracting officer receives or obtains information of a
violation or possible violation of subsections 27 (a), (b), (c), or (d)
of the Act (see 3.104-4), the contracting officer shall determine
whether the reported violation or possible violation has any impact on
the pending award or selection of the source therefor.
(1) If the contracting officer concludes that there is no impact on
the procurement, the contracting officer shall forward the information
concerning the violation or possible violation, accompanied by
appropriate documentation supporting that conclusion, to an individual
designated in accordance with agency procedures. With the concurrence of
that individual, the contracting officer shall, without further
approval, proceed with the procurement.
(2) If the individual reviewing the contracting officer's conclusion
does not agree with that conclusion, the individual shall advise the
contracting officer to withhold award and shall promptly forward the
information and documentation to the HCA or designee.
(3) If the contracting officer concludes that the violation or
possible violation impacts the procurement, the contracting officer
shall promptly forward the information to the HCA or designee.
(b) The HCA or designee receiving any information describing an
actual or possible violation of subsections 27 (a), (b), (c), or (d) of
the Act, shall review all information available and take appropriate
action in accordance with agency procedures, such as--
(1) Advising the contracting officer to continue with the
procurement;
(2) Causing an investigation to be conducted;
(3) Referring the information disclosed to appropriate criminal
investigative agencies;
(4) Concluding that a violation occurred; or
(5) Recommending an agency head determination that the contractor,
or someone acting for the contractor, has engaged in conduct
constituting an offense punishable under subsection 27(e)
[[Page 37]]
of the Act, for the purpose of voiding or rescinding the contract.
(c) Before concluding that a bidder, offeror, contractor, or person
has violated the Act, the HCA or designee may request information from
appropriate parties regarding the violation or possible violation when
considered in the best interests of the Government.
(d) If the HCA or designee concludes that the prohibitions of
section 27 of the Act have been violated, then the HCA or designee may
direct the contracting officer to--
(1) If a contract has not been awarded--
(i) Cancel the procurement;
(ii) Disqualify an offeror; or
(iii) Take any other appropriate actions in the interests of the
Government.
(2) If a contract has been awarded--
(i) Effect appropriate contractual remedies, including profit
recapture as provided for in the clause at 52.203-10, Price or Fee
Adjustment for Illegal or Improper Activity, or, if the contract has
been rescinded under paragraph (d)(2)(ii) of this subsection, recovery
of the amount expended under the contract;
(ii) Void or rescind the contract with respect to which--
(A) The contractor or someone acting for the contractor has been
convicted for an offense where the conduct constitutes a violation of
subsections 27 (a) or (b) of the Act for the purpose of either--
(1) Exchanging the information covered by such subsections for
anything of value; or
(2) Obtaining or giving anyone a competitive advantage in the award
of a Federal agency procurement contract; or
(B) The head of the agency, or designee, has determined, based upon
a preponderance of the evidence, that the contractor or someone acting
for the contractor has engaged in conduct constituting an offense
punishable under subsection 27(e)(1) of the Act; or
(iii) Take any other appropriate actions in the best interests of
the Government.
(3) Refer the matter to the agency suspension and debarment
official.
(e) The HCA or designee shall recommend or direct an administrative
or contractual remedy commensurate with the severity and effect of the
violation.
(f) If the HCA or designee receiving information concerning a
violation or possible violation determines that award is justified by
urgent and compelling circumstances, or is otherwise in the interests of
the Government, the HCA may authorize the contracting officer to award
the contract or execute the contract modification after notification to
the head of the agency in accordance with agency procedures.
(g) The HCA may delegate his or her authority under this subsection
to an individual at least one organizational level above the contracting
officer and of General Officer, Flag, Senior Executive Service, or
equivalent rank.
[62 FR 231, Jan. 2, 1997]
Sec. 3.104-11 Criminal and civil penalties, and further administrative remedies.
Criminal and civil penalties, and administrative remedies, may apply
to conduct which violates the Act (see 3.104-4). See 33.102(f) for
special rules regarding bid protests. See 3.104-10 for administrative
remedies relating to contracts.
(a) An official who knowingly fails to comply with the requirements
of 3.104-4 shall be subject to the penalties and administrative action
set forth in subsection 27(e) of the Act.
(b) A bidder or offeror who engages in employment discussion with an
official subject to the restrictions of 3.104-4, knowing that the
official has not complied with 3.104-4(c)(1), shall be subject to the
criminal, civil or administrative penalties set forth in subsection
27(e) of the Act.
(c) An official who refuses to terminate employment discussions (see
3.104-6) may be subject to agency administrative actions under 5 CFR
2635.604(d) if the official's disqualification from participation in a
particular procurement interferes substantially with the individual's
ability to perform assigned duties.
[62 FR 231, Jan. 2, 1997]
[[Page 38]]
Subpart 3.2--Contractor Gratuities to Government Personnel
Sec. 3.201 Applicability.
This subpart applies to all executive agencies, except that coverage
concerning exemplary damages applies only to the Department of Defense
(10 U.S.C. 2207).
Sec. 3.202 Contract clause.
The contracting officer shall insert the clause at 52.203-3,
Gratuities, in solicitations and contracts with a value exceeding the
simplified acquisition threshold, except those for personal services and
those between military departments or defense agencies and foreign
governments that do not obligate any funds appropriated to the
Department of Defense.
[61 FR 39200, July 26, 1996]
Sec. 3.203 Reporting suspected violations of the Gratuities clause.
Agency personnel shall report suspected violations of the Gratuities
clause to the contracting officer or other designated official in
accordance with agency procedures. The agency reporting procedures shall
be published as an implementation of this section 3.203 and shall
clearly specify--
(a) What to report and how to report it; and
(b) The channels through which reports must pass, including the
function and authority of each official designated to review them.
Sec. 3.204 Treatment of violations.
(a) Before taking any action against a contractor, the agency head
or a designee shall determine, after notice and hearing under agency
procedures, whether the contractor, its agent, or another
representative, under a contract containing the Gratuities clause--
(1) Offered or gave a gratuity (e.g., an entertainment or gift) to
an officer, official, or employee of the Government; and
(2) Intended by the gratuity to obtain a contract or favorable
treatment under a contract (intent generally must be inferred).
(b) Agency procedures shall afford the contractor an opportunity to
appear with counsel, submit documentary evidence, present witnesses, and
confront any person the agency presents. The procedures should be as
informal as practicable, consistent with principles of fundamental
fairness.
(c) When the agency head or designee determines that a violation has
occurred, the Government may--
(1) Terminate the contractor's right to proceed;
(2) Initiate debarment or suspension measures as set forth in
subpart 9.4; and
(3) Assess exemplary damages, if the contract uses money
appropriated to the Department of Defense.
Subpart 3.3--Reports of Suspected Antitrust Violations
Sec. 3.301 General.
(a) Practices that eliminate competition or restrain trade usually
lead to excessive prices and may warrant criminal, civil, or
administrative action against the participants. Examples of
anticompetitive practices are collusive bidding, follow-the-leader
pricing, rotated low bids, collusive price estimating systems, and
sharing of the business.
(b) Contracting personnel are an important potential source of
investigative leads for antitrust enforcement and should therefore be
sensitive to indications of unlawful behavior by offerors and
contractors. Agency personnel shall report, in accordance with agency
regulations, evidence of suspected antitrust violations in acquisitions
for possible referral to (1) the Attorney General under 3.303 and (2)
the agency office responsible for contractor debarment and suspension
under subpart 9.4.
[48 FR 42108, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
Sec. 3.302 Definitions.
Identical bids means bids for the same line item that are determined
to be identical as to unit price or total line
[[Page 39]]
item amount, with or without the application of evaluation factors
(e.g., discount or transportation cost).
Line item means an item of supply or service, specified in an
invitation for bids, for which the bidder must bid a separate price.
[49 FR 12974, Mar. 30, 1984]
Sec. 3.303 Reporting suspected antitrust violations.
(a) Agencies are required by 41 U.S.C. 253b(i) and 10 U.S.C.
2305(b)(9) to report to the Attorney General any bids or proposals that
evidence a violation of the antitrust laws. These reports are in
addition to those required by subpart 9.4.
(b) The antitrust laws are intended to ensure that markets operate
competitively. Any agreement or mutual understanding among competing
firms that restrains the natural operation of market forces is suspect.
Paragraph (c) below identifies behavior patterns that are often
associated with antitrust violations. Activities meeting the
descriptions in paragraph (c) are not necessarily improper, but they are
sufficiently questionable to warrant notifying the appropriate
authorities, in accordance with agency procedures.
(c) Practices or events that may evidence violations of the
antitrust laws include--
(1) The existence of an industry price list or price agreement to
which contractors refer in formulating their offers;
(2) A sudden change from competitive bidding to identical bidding;
(3) Simultaneous price increases or follow-the-leader pricing;
(4) Rotation of bids or proposals, so that each competitor takes a
turn in sequence as low bidder, or so that certain competitors bid low
only on some sizes of contracts and high on other sizes;
(5) Division of the market, so that certain competitors bid low only
for contracts let by certain agencies, or for contracts in certain
geographical areas, or on certain products, and bid high on all other
jobs;
(6) Establishment by competitors of a collusive price estimating
system;
(7) The filing of a joint bid by two or more competitors when at
least one of the competitors has sufficient technical capability and
productive capacity for contract performance;
(8) Any incidents suggesting direct collusion among competitors,
such as the appearance of identical calculation or spelling errors in
two or more competitive offers or the submission by one firm of offers
for other firms; and
(9) Assertions by the employees, former employees, or competitors of
offerors, that an agreement to restrain trade exists.
(d) Identical bids shall be reported under this section if the
agency has some reason to believe that the bids resulted from collusion.
(e) For offers from foreign contractors for contracts to be
performed outside the United States, contracting officers may refer
suspected collusive offers to the authorities of the foreign government
concerned for appropriate action.
(f) Agency reports shall be addressed to the Attorney General, U.S.
Department of Justice, Washington, DC 20530, Attention: Assistant
Attorney General, Antitrust Division, and shall include--
(1) A brief statement describing the suspected practice and the
reason for the suspicion; and
(2) The name, address, and telephone number of an individual in the
agency who can be contacted for further information.
(g) Questions concerning this reporting requirement may be
communicated by telephone directly to the Office of the Assistant
Attorney General, Antitrust Division.
[48 FR 42108, Sept. 19, 1983, as amended at 49 FR 12974, Mar. 30, 1984;
50 FR 1727, Jan. 11, 1985; 50 FR 52429, Dec. 23, 1985; 55 FR 25526, June
21, 1990; 65 FR 36030, June 6, 2000]
Subpart 3.4--Contingent Fees
Sec. 3.400 Scope of subpart.
This subpart prescribes policies and procedures that restrict
contingent fee arrangements for soliciting or obtaining Government
contracts to those permitted by 10 U.S.C. 2306(b) and 41 U.S.C. 254(a).
Sec. 3.401 Definitions.
Bona fide agency, as used in this subpart, means an established
commercial
[[Page 40]]
or selling agency, maintained by a contractor for the purpose of
securing business, that neither exerts nor proposes to exert improper
influence to solicit or obtain Government contracts nor holds itself out
as being able to obtain any Government contract or contracts through
improper influence.
Bona fide employee, as used in this subpart, means a person,
employed by a contractor and subject to the contractor's supervision and
control as to time, place, and manner of performance, who neither exerts
nor proposes to exert improper influence to solicit or obtain Government
contracts nor holds out as being able to obtain any Government contract
or contracts through improper influence.
Contingent fee, as used in this subpart, means any commission,
percentage, brokerage, or other fee that is contingent upon the success
that a person or concern has in securing a Government contract.
Improper influence, as used in this subpart, means any influence
that induces or tends to induce a Government employee or officer to give
consideration or to act regarding a Government contract on any basis
other than the merits of the matter.
Sec. 3.402 Statutory requirements.
Contractors' arrangements to pay contingent fees for soliciting or
obtaining Government contracts have long been considered contrary to
public policy because such arrangements may lead to attempted or actual
exercise of improper influence. In 10 U.S.C. 2306(b) and 41 U.S.C.
254(a), Congress affirmed this public policy but permitted certain
exceptions. These statutes--
(a) Require in every negotiated contract a warranty by the
contractor against contingent fees;
(b) Permit, as an exception to the warranty, contingent fee
arrangements between contractors and bona fide employees or bona fide
agencies; and
(c) Provide that, for breach or violation of the warranty by the
contractor, the Government may annul the contract without liability or
deduct from the contract price or consideration, or otherwise recover,
the full amount of the contingent fee.
Sec. 3.403 Applicability.
This subpart applies to all contracts. Statutory requirements for
negotiated contracts are, as a matter of policy, extended to sealed bid
contracts.
[48 FR 42108, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
Sec. 3.404 Contract clause.
The contracting officer shall insert the clause at 52.203-5,
Covenant Against Contingent Fees, in all solicitations and contracts
exceeding the simplified acquisition threshold, other than those for
commercial items (see parts 2 and 12).
[61 FR 39188, July 26, 1996]
Sec. 3.405 Misrepresentations or violations of the Covenant Against Contingent Fees.
(a) Government 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 to the contracting
officer or appropriate higher authority in accordance with agency
procedures.
(b) When there is specific evidence or other reasonable basis to
suspect one or more of the violations in paragraph (a) above, the chief
of the contracting office shall review the facts and, if appropriate,
take or direct one or more of the following, or other, actions:
(1) If before award, reject the bid or proposal.
(2) If after award, enforce the Government's right to annul the
contract or to recover the fee.
(3) Initiate suspension or debarment action under subpart 9.4.
(4) Refer suspected fraudulent or criminal matters to the Department
of Justice, as prescribed in agency regulations.
[48 FR 42108, Sept. 19, 1983. Redesignated at 61 FR 39188, July 26,
1996]
Sec. 3.406 Records.
For enforcement purposes, agencies shall preserve any specific
evidence of one or more of the violations in
[[Page 41]]
3.405(a), together with all other pertinent data, including a record of
actions taken. Contracting offices shall not retire or destroy these
records until it is certain that they are no longer needed for
enforcement purposes. If the original record is maintained in a central
file, a copy must be retained in the contract file.
[48 FR 42108, Sept. 19, 1983. Redesignated and amended at 61 FR 39188,
July 26, 1996]
Subpart 3.5--Other Improper Business Practices
Sec. 3.501 Buying-in.
Sec. 3.501-1 Definition.
Buying-in means submitting an offer below anticipated costs,
expecting to--
(a) Increase the contract amount after award (e.g., through
unnecessary or excessively priced change orders); or
(b) Receive follow-on contracts at artificially high prices to
recover losses incurred on the buy-in contract.
Sec. 3.501-2 General.
(a) Buying-in may decrease competition or result in poor contract
performance. The contracting officer must take appropriate action to
ensure buying-in losses are not recovered by the contractor through the
pricing of (1) change orders or (2) follow-on contracts subject to cost
analysis.
(b) The Government should minimize the opportunity for buying-in by
seeking a price commitment covering as much of the entire program
concerned as is practical by using--
(1) Multiyear contracting, with a requirement in the solicitation
that a price be submitted only for the total multiyear quantity; or
(2) Priced options for additional quantities that, together with the
firm contract quantity, equal the program requirements (see subpart
17.2).
(c) Other safeguards are available to the contracting officer to
preclude recovery of buying-in losses (e.g., amortization of
nonrecurring costs (see 15.408, Table 15-2, paragraph A., column (2)
under ``Formats for Submission of Line Item Summaries) and treatment of
unreasonable price quotations (see 15.405).
48 FR 42108, Sept. 19, 1983, as amended at 62 FR 51270, Sept. 30, 1997]
Sec. 3.502 Subcontractor kickbacks.
Sec. 3.502-1 Definitions.
Kickback, as used in this section, means any money, fee, commission,
credit, gift, gratuity, thing of value, or compensation of any kind
which is provided, directly or indirectly, to any prime contractor,
prime contractor employee, subcontractor, or subcontractor employee for
the purpose of improperly obtaining or rewarding favorable treatment in
connection with a prime contract or in connection with a subcontract
relating to a prime contract.
Person, as used in this section, means a corporation, partnership,
business association of any kind, trust, joint-stock company, or
individual.
Prime contract, as used in this section, means a contract or
contractual action entered into by the United States for the purpose of
obtaining supplies, materials, equipment, or services of any kind.
Prime Contractor, as used in this section, means a person who has
entered into a prime contract with the United States.
Prime Contractor employee, as used in this section, means any
officer, partner, employee, or agent of a prime contractor.
Subcontract, as used in this section, means a contract or
contractural action entered into by a prime contractor or subcontractor
for the purpose of obtaining supplies, materials, equipment, or service
of any kind under a prime contract.
Subcontractor, as used in this section, (a) means any person, other
than the prime contractor, who offers to furnish or furnishes any
supplies, materials, equipment, or services of any kind under a prime
contract or a subcontract entered into in connection with such prime
contract, and (b) includes any person who offers to furnish or furnishes
general supplies to the prime contractor or a higher tier subcontractor.
[[Page 42]]
Subcontractor employee, as used in this section, means any officer,
partner, employee, or agent of a subcontractor.
[52 FR 6121, Feb. 27, 1987, as amended at 53 FR 34226, Sept. 2, 1988]
Sec. 3.502-2 Subcontractor kickbacks.
The Anti-Kickback Act of 1986 (41 U.S.C. 51-58) was passed to deter
subcontractors from making payments and contractors from accepting
payments for the purpose of improperly obtaining or rewarding favorable
treatment in connection with a prime contract or a subcontract relating
to a prime contract. The Act--
(a) Prohibits any person from--
(1) Providing, attempting to provide, or offering to provide any
kickback;
(2) Soliciting, accepting, or attempting to accept any kickbacks; or
(3) Including, directly or indirectly, the amount of any kickback in
the contract price charged by a subcontractor to a prime contractor or a
higher tier subcontractor or in the contract price charged by a prime
contractor to the United States.
(b) Imposes criminal penalties on any person who knowingly and
willfully engages in the prohibited conduct addressed in paragraph (a)
of this subsection.
(c) Provides for the recovery of civil penalties by the United
States from any person who knowingly engages in such prohibited conduct
and from any person whose employee, subcontractor, or subcontractor
employee provides, accepts, or charges a kickback.
(d) Provides that--
(1) The contracting officer may offset the amount of a kickback
against monies owed by the United States to the prime contractor under
the prime contract to which such kickback relates;
(2) The contracting officer may direct a prime contractor to
withhold from any sums owed to a subcontract under a subcontractor of
the prime contract the amount of any kickback which was or may be offset
against the prime contractor under subparagraph (d)(1) of this
subsection; and
(3) An offset under subparagraph (d)(1) or a direction under
subparagraph (d)(2) of this subsection is a claim by the Government for
the purposes of the Contract Disputes Act of 1978.
(e) Authorizes contracting officers to order that sums withheld
under subparagraph (d)(2) of this subsection be paid to the contracting
agency, or if the sum has already been offset against the prime
contractor, that it be retained by the prime contractor.
(f) Requires the prime contractor to notify the contracting officer
when the withholding under subparagraph (d)(2) of this subsection has
been accomplished unless the amount withheld has been paid to the
Government.
(g) Requires a prime contractor or subcontractor to report in
writing to the inspector general of the contracting agency, the head of
the contracting agency if the agency does not have an inspector general,
or the Department of Justice any possible violation of the Act when the
prime contractor or subcontractor has reasonable grounds to believe such
violation may have occurred.
(h) Provides that, for the purpose of ascertaining whether there has
been a violation of the Act with respect to any prime contract, the
General Accounting Office and the inspector general of the contracting
agency, or a representative of such contracting agency designated by the
head of such agency if the agency does not have an inspector general,
shall have access to and may inspect the facilities and audit the books
and records, including any electronic data or records, of any prime
contractor or subcontractor under a prime contract awarded by such
agency.
(i) Requires each contracting agency to include in each prime
contract exceeding $100,000 for other than commercial items (see part
12), a requirement that the prime contractor shall--
(1) Have in place and follow reasonable procedures designed to
prevent and detect violations of the Act in its own operations and
direct business relationships (e.g., company ethics rules prohibiting
kickbacks by employees, agents, or subcontractors; education programs
for new employees and subcontractors, explaining policies about
kickbacks, related company procedures and the consequences of detection;
procurement procedures to minimize the
[[Page 43]]
opportunity for kickbacks; audit procedures designed to detect
kickbacks; periodic surveys of subcontractors to elicit information
about kickbacks; procedures to report kickbacks to law enforcement
officials; annual declarations by employees of gifts or gratuities
received from subcontractors; annual employee declarations that they
have violated no company ethics rules; personnel practices that document
unethical or illegal behavior and make such information available to
prospective employers); and
(2) Cooperate fully with any Federal agency investigating a possible
violation of the Act.
(j) Notwithstanding paragraph (i) of this subsection, a prime
contractor shall cooperate fully with any Federal government agency
investigating a violation of Section 3 of the Anti-Kickback Act of 1986
(41 U.S.C. 51-58).
[52 FR 6121, Feb. 27, 1987; 52 FR 9989, Mar. 27, 1987, as amended at 53
FR 34226, Sept. 2, 1988; 60 FR 48235, Sept. 18, 1995; 61 FR 39191, July
26, 1996; 62 FR 235, Jan. 2, 1997]
Sec. 3.502-3 Contract clause.
The contracting officer shall insert the clause at 52.203-7, Anti-
Kickback Procedures, in solicitations and contracts exceeding the
simplified acquisition threshold, other than those for commercial items
(see part 12).
[60 FR 48235, Sept. 18, 1995, as amended at 61 FR 39190, July 26, 1996]
Sec. 3.503 Unreasonable restrictions on subcontractor sales.
Sec. 3.503-1 Policy.
10 U.S.C. 2402 and 41 U.S.C. 253(g) require that subcontractors not
be unreasonably precluded from making direct sales to the Government of
any supplies or services made or furnished under a contract. However,
this does not preclude contractors from asserting rights that are
otherwise authorized by law or regulation.
[50 FR 35475, Aug. 30, 1985, and 51 FR 27116, July 29, 1986]
Sec. 3.503-2 Contract clause.
The contracting officer shall insert the clause at 52.203-6,
Restrictions on Subcontractor Sales to the Government, in solicitations
and contracts exceeding the simplified acquisition threshold. For the
acquisition of commercial items, the contracting officer shall use the
clause with its Alternate I.
[60 FR 48235, Sept. 18, 1995, as amended at 61 FR 39190, July 26, 1996]
Subpart 3.6--Contracts With Government Employees or Organizations Owned
or Controlled by Them
Sec. 3.601 Policy.
(a) Except as specified in 3.602, a contracting officer shall not
knowingly award a contract to a Government employee or to a business
concern or other organization owned or substantially owned or controlled
by one or more Government employees. This policy is intended to avoid
any conflict of interest that might arise between the employees'
interests and their Government duties, and to avoid the appearance of
favoritism or preferential treatment by the Government toward its
employees.
(b) For purposes of this subpart, special Government employees (as
defined in 18 U.S.C. 202) performing services as experts, advisors, or
consultants, or as members of advisory committees, are not considered
Government employees unless--
(1) The contract arises directly out of the individual's activity as
a special Government employee;
(2) In the individual's capacity as a special Government employee,
the individual is in a position to influence the award of the contract;
or
(3) Another conflict of interest is determined to exist.
[55 FR 34864, Aug. 24, 1990]
Sec. 3.602 Exceptions.
The agency head, or a designee not below the level of the head of
the contracting activity, may authorize an exception to the policy in
3.601 only if there is a most compelling reason to do so, such as when
the Government's needs cannot reasonably be otherwise met.
[[Page 44]]
Sec. 3.603 Responsibilities of the contracting officer.
(a) Before awarding a contract, the contracting officer shall obtain
an authorization under 3.602 if--
(1) The contracting officer knows, or has reason to believe, that a
prospective contractor is one to which award is otherwise prohibited
under 3.601; and
(2) There is a most compelling reason to make an award to that
prospective contractor.
(b) The contracting officer shall comply with the requirements and
guidance in subpart 9.5 before awarding a contract to an organization
owned or substantially owned or controlled by Government employees.
Subpart 3.7--Voiding and Rescinding Contracts
Source: 51 FR 27116, July 29, 1986, unless otherwise noted.
Sec. 3.700 Scope of subpart.
(a) This subpart prescribes Governmentwide policies and procedures
for exercising discretionary authority to declare void and rescind
contracts in relation to which--
(1) There has been a final conviction for bribery, conflict of
interest, disclosure or receipt of contractor bid or proposal
information or source selection information in exchange for a thing of
value or to give anyone a competitive advantage in the award of a
Federal agency procurement contract, or similar misconduct; or
(2) There has been an agency head determination that contractor bid
or proposal information or source selection information has been
disclosed or received in exchange for a thing of value, or for the
purpose of obtaining or giving anyone a competitive advantage in the
award of a Federal agency procurement contract.
(b) This subpart does not prescribe policies or procedures for, or
govern the exercise of, any other remedy available to the Government
with respect to such contracts, including but not limited to, the common
law right of avoidance, rescission, or cancellation.
[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]
Sec. 3.701 Purpose.
This subpart provides--
(a) An administrative remedy with respect to contracts in relation
to which there has been--
(1) A final conviction for bribery, conflict of interest, disclosure
or receipt of contractor bid or proposal information or source selection
information in exchange for a thing of value or to give anyone a
competitive advantage in the award of a Federal agency procurement
contract, or similar misconduct; or
(2) An agency head determination that contractor bid or proposal
information or source selection information has been disclosed or
received in exchange for a thing of value, or for the purpose of
obtaining or giving anyone a competitive advantage in the award of a
Federal agency procurement contract; and
(b) A means to deter similar misconduct in the future by those who
are involved in the award, performance, and administration of Government
contracts.
[62 FR 232, Jan. 2, 1997]
Sec. 3.702 Definition.
Final conviction means a conviction, whether entered on a verdict or
plea, including a plea of nolo contendere, for which sentence has been
imposed.
Sec. 3.703 Authority.
(a) Section 1(e) of Pub. L. 87-849, 18 U.S.C. 218 (the Act),
empowers the President or the heads of executive agencies acting under
regulations prescribed by the President, to declare void and rescind
contracts and other transactions enumerated in the Act, in relation to
which there has been a final conviction for bribery, conflict of
interest, or any other violation of Chapter 11 of Title 18 of the United
States Code (18 U.S.C. 201-224). Executive Order 12448, November 4,
1983, delegates the President's authority under the Act to the heads of
the executive agencies and military departments.
[[Page 45]]
(b) Subsection 27(e)(3) of the Office of Federal Procurement Policy
Act (41 U.S.C. 423) (the OFPP Act), as amended, requires a Federal
agency, upon receiving information that a contractor or a person has
engaged in conduct constituting a violation of subsection 27 (a) or (b)
of the OFPP Act, to consider recission of a contract with respect to
which--
(1) The contractor or someone acting for the contractor has been
convicted for an offense punishable under subsection 27(e)(1) of the
OFPP Act; or
(2) The head of the agency, or designee, has determined, based upon
a preponderance of the evidence, that the contractor or someone acting
for the contractor has engaged in conduct constituting such an offense.
[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]
Sec. 3.704 Policy.
(a) In cases in which there is a final conviction for any violation
of 18 U.S.C. 201-224 involving or relating to contracts awarded by an
agency, the agency head or designee shall consider the facts available
and, if appropriate, may declare void and rescind contracts, and recover
the amounts expended and property transferred by the agency in
accordance with the policies and procedures of this subpart.
(b) Since a final conviction under 18 U.S.C. 201-224 relating to a
contract also may justify the conclusion that the party involved is not
presently responsible, the agency should consider initiating debarment
proceedings in accordance with subpart 9.4, Debarment, Suspension, and
Ineligibility, if debarment has not been initiated or is not in effect
at the time the final conviction is entered.
(c) If there is a final conviction for an offense punishable under
subsection 27(e) of the OFPP Act, or if the head of the agency, or
designee, has determined, based upon a preponderance of the evidence,
that the contractor or someone acting for the contractor has engaged in
conduct constituting such an offense, then the head of the contracting
activity shall consider, in addition to any other penalty prescribed by
law or regulation--
(1) Declaring void and rescinding contracts, as appropriate, and
recovering the amounts expended under the contracts by using the
procedures at 3.705 (see 3.104-10); and
(2) Recommending the initiation of suspension or debarment
proceedings in accordance with subpart 9.4.
[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]
Sec. 3.705 Procedures.
(a) Reporting. The facts concerning any final conviction for any
violation of 18 U.S.C. 201-224 involving or relating to agency contracts
shall be reported promptly to the agency head or designee for that
official's consideration. The agency head or designee shall promptly
notify the Civil Division, Department of Justice, that an action is
being considered under this subpart.
(b) Decision. Following an assessment of the facts, the agency head
or designee may declare void and rescind contracts with respect to which
a final conviction has been entered, and recover the amounts expended
and the property transferred by the agency under the terms of the
contracts involved.
(c) Decision-making process. Agency procedures governing the voiding
and rescinding decision-making process shall be as informal as is
practicable, consistent with the principles of fundamental fairness. As
a minimum, however, agencies shall provide the following:
(1) A notice of the proposed action to declare void and rescind the
contract shall be made in writing and sent by certified mail, return
receipt requested.
(2) A thirty calendar day period after receipt of the notice, for
the contractor to submit pertinent information before any final decision
is made.
(3) Upon request made within the period for submission of pertinent
information, an opportunity shall be afforded for a hearing at which
witnesses may be presented, and any witness the agency presents may be
confronted. However, no inquiry shall be made regarding the validity of
a conviction.
(4) If the agency head or designee decides to declare void and
rescind the
[[Page 46]]
contracts involved, that official shall issue a written decision which--
(i) States that determination;
(ii) Reflects consideration of the fair value of any tangible
benefits received and retained by the agency; and
(iii) States the amount due, and the property to be returned, to the
agency.
(d) Notice of proposed action. The notice of the proposed action, as
a minimum shall--
(1) Advise that consideration is being given to declaring void and
rescinding contracts awarded by the agency, and recovering the amounts
expended and property transferred therefor, under the provisions of 18
U.S.C. 218;
(2) Specifically identify the contracts affected by the action;
(3) Specifically identify the offense or final conviction on which
the action is based;
(4) State the amounts expended and property transferred under each
of the contracts involved, and the money and the property demanded to be
returned;
(5) Identify any tangible benefits received and retained by the
agency under the contract, and the value of those benefits, as
calculated by the agency;
(6) Advise that pertinent information may be submitted within 30
calendar days after receipt of the notice, and that, if requested within
that time, a hearing shall be held at which witnesses may be presented
and any witness the agency presents may be confronted; and
(7) Advise that action shall be taken only after the agency head or
designee issues a final written decision on the proposed action.
(e) Final agency decision. The final agency decision shall be based
on the information available to the agency head or designee, including
any pertinent information submitted or, if a hearing was held, presented
at the hearing. If the agency decision declares void and rescinds the
contract, the final decision shall specify the amounts due and property
to be returned to the agency, and reflect consideration of the fair
value of any tangible benefits received and retained by the agency.
Notice of the decision shall be sent promptly by certified mail, return
receipt requested. Rescission of contracts under the authority of the
Act and demand for recovery of the amounts expended and property
transferred therefor, is not a claim within the meaning of the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. 601-613, or part 33. Therefore,
the procedures required by the CDA and the FAR for the issuance of a
final contracting officer decision are not applicable to final agency
decisions under this subpart, and shall not be followed.
[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]
Subpart 3.8--Limitations on the Payment of Funds to Influence Federal
Transactions
Source: 55 FR 3190, Jan. 30, 1990, unless otherwise noted.
Sec. 3.800 Scope of subpart.
This subpart prescribes policies and procedures implementing section
319 of the Department of the Interior and Related Agencies
Appropriations Act, Pub. L. 101-121, which added a new section 1352 to
title 31 U.S.C., entitled ``Limitation on use of appropriated funds to
influence certain Federal contracting and financial transactions'' (the
Act).
Sec. 3.801 Definitions.
Agency, as used in this section, means an executive agency as
defined in 2.101.
Covered Federal action, as used in this section, means any of the
following Federal actions:
(a) The awarding of any Federal contract.
(b) The making of any Federal grant.
(c) The making of any Federal loan.
(d) The entering into of any cooperative agreement.
(e) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Indian tribe and tribal organization, as used in this section, have
the meaning provided in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450B) and include Alaskan Natives.
[[Page 47]]
Influencing or attempting to influence, as used in this section,
means making, with the intent to influence, any communication to or
appearance before an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with any covered Federal action.
Local government, as used in this section, means a unit of
government in a State and, if chartered, established, or otherwise
recognized by a State for the performance of a governmental duty,
including a local public authority, a special district, an intrastate
district, a council of governments, a sponsor group representative
organization, and any other instrumentality of a local government.
Officer or employee of an agency, as used in this section, includes
the following individuals who are employed by an agency:
(a) An individual who is appointed to a position in the Government
under title 5, United States Code, including a position under a
temporary appointment;
(b) A member of the uniformed services, as defined in subsection
101(3), title 37, United States Code;
(c) A special Government employee, as defined in section 202, title
18, United States Code; and
(d) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act, title 5, United States
Code, appendix 2.
Person, as used in this section, means an individual, corporation,
company, association, authority, firm, partnership, society, State, and
local government, regardless of whether such entity is operated for
profit or not for profit. This term excludes an Indian tribe, tribal
organization, or any other Indian organization with respect to
expenditures specifically permitted by other Federal law.
Reasonable compensation, as used in this section, means, with
respect to a regularly employed officer or employee of any person,
compensation that is consistent with the normal compensation for such
officer or employee for work that is not furnished to, not funded by, or
not furnished in cooperation with the Federal Government.
Reasonable payment, as used in this section, means, with respect to
professional and other technical services, a payment in an amount that
is consistent with the amount normally paid for such services in the
private sector.
Recipient, as used in this section, includes the contractor and all
subcontractors. This term excludes an Indian tribe, tribal organization,
or any other Indian organization with respect to expenditures
specifically permitted by other Federal law.
Regularly employed, as used in this section, means, with respect to
an officer or employee of a person requesting or receiving a Federal
contract, an officer or employee who is employed by such person for at
least 130 working days within 1 year immediately preceding the date of
the submission that initiates agency consideration of such person for
receipt of such contract. An officer or employee who is employed by such
person for less than 130 working days within 1 year immediately
preceding the date of the submission that initiates agency consideration
of such person shall be considered to be regularly employed as soon as
he or she is employed by such person for 130 working days.
State, as used in this section, means a State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, a territory
or possession of the United States, an agency or instrumentality of a
State, and multi-State, regional, or interstate entity having
governmental duties and powers.
Sec. 3.802 Prohibitions.
(a) Section 1352 of title 31, United States Code, among other
things, prohibits a recipient of a Federal contract, grant, loan, or
cooperative agreement from using appropriated funds to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract; the
making of any Federal grant; the making of any
[[Page 48]]
Federal loan; the entering into of any cooperative agreement; or, the
modification of any Federal contract, grant, loan, or cooperative
agreement.
(b) The Act also requires offerors to furnish a declaration
consisting of both a certification and a disclosure. These requirements
are contained in the provision at 52.203-11, Certification and
Disclosure Regarding Payments to Influence Certain Federal Transactions,
and the clause at 52.203-12, Limitation on Payments to Influence Certain
Federal Transactions.
(1) By signing its offer, an offeror certifies that no appropriated
funds have been paid or will be paid in violation of the prohibitions in
31 U.S.C. 1352.
(2) The disclosure shall identify if any funds other than Federal
appropriated funds (including profit or fee received under a covered
Federal action) have been paid, or will be paid, to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with a Federal contract,
grant, loan, or cooperative agreement.
(c) The prohibitions of the Act do not apply under the following
conditions:
(1) Agency and legislative liaison by own employees. (i) The
prohibition on the use of appropriated funds, in paragraph (a) of this
section, does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a covered Federal action if the payment is for agency and
legislative liaison activities not directly related to a covered Federal
action.
(ii) For purposes of subdivision (c)(1)(i) of this section,
providing any information specifically requested by an agency or
Congress is permitted at any time.
(iii) The following agency and legislative liaison activities are
permitted at any time where they are not related to a specific
solicitation for any covered Federal action:
(A) Discussing with an agency the qualities and characteristics
(including individual demonstrations) of the person's products or
services, conditions or terms of sale, and service capabilities;
(B) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(iv) The following agency and legislative liaison activities are
permitted where they are prior to formal solicitation of any covered
Federal action:
(A) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(B) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and
(C) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended
by Pub. L. 95-507, and subsequent amendments.
(v) Only those activities expressly authorized by subparagraph
(c)(1) of this section are permitted under this section.
(2) Professional and technical services. (i) The prohibition on the
use of appropriated funds, in paragraph (a) of this section, does not
apply in the case of--
(A) Payment of reasonable compensation made to an officer or
employee of a person requesting or receiving a covered Federal action or
an extension, continuation, renewal, amendment, or modification of a
covered Federal action, if payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal action
or for meeting requirements imposed by or pursuant to law as a condition
for receiving that Federal action;
(B) Any reasonable payment to a person, other than an officer or
employee of a person requesting or receiving a covered Federal action,
if the payment is for professional or technical services rendered
directly in the preparation, submission, r negotiation of any bid,
proposal, or application for that Federal action, or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal action. Persons other than officers or employees of a
person requesting or
[[Page 49]]
receiving a covered Federal action include consultants and trade
associations.
(ii) For purposes of subdivision (c)(2)(i) of this section,
``professional and technical services'' shall be limited to advice and
analysis directly applying any professional or technical discipline. For
example, drafting of a legal document accompanying a bid or proposal by
a lawyer is allowable. Similarly, technical advice provided by an
engineer on the performance or operational capability of a piece of
equipment rendered directly in the negotiation of a contract is
allowable. However, communications with the intent to influence made by
a professional (such as a licensed lawyer) or a technical person (such
as a licensed accountant) are not allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(iii) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation and any other requirements in the actual award documents
(iv) Only those services expressly authorized by subdivisions
(c)(2)(i) (A) and (B) of this section are permitted under this section.
(v) The reporting requirements of 3.803(a) shall not apply with
respect to payments of reasonable compensation made to regularly
employed officers or employees of a person.
Sec. 3.803 Certification and disclosure.
(a) Any contractor who requests or receives a Federal contract
exceeding $100,000 shall submit the certification and disclosures
required by the provision at 52.203-11, Certification and Disclosure
Regarding Payments to Influence Certain Federal Transactions, with its
offer. Disclosures under this section shall be submitted to the
contracting officer using OMB standard form LLL, Disclosure of Lobbying
Activities.
(b) The contractor shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that materially affects
the accuracy of the information contained in any disclosure form
previously filed by such person under paragraph (a) of this section. An
event that materially affects the accuracy of the information reported
includes--
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or
(3) A change in the officer(s), employee(s), or Member(s) of
Congress contacted to influence or attempt to influence a covered
Federal action.
(c) The contractor shall require the submittal of a certification,
and if required, a disclosure form, by any person who requests or
receives any subcontract exceeding $100,000 under the Federal contract.
(d) All subcontractor disclosure forms (but not certifications),
shall be forwarded from tier to tier until received by the prime
contractor. The prime contractor shall submit all disclosure forms to
the contracting officer at the end of the calendar quarter in which the
disclosure form is submitted by the subcontractor. Each subcontractor
certification shall be retained in the subcontract file of the awarding
contractor.
[55 FR 3190, Jan. 30, 1990, as amended at 55 FR 38516, Sept. 18, 1990]
[[Page 50]]
Sec. 3.804 Policy.
(a) The contracting officer shall obtain certifications and
disclosures as required by the provision at 52.203-11, Certification and
Disclosure Regarding Payments to Influence Certain Federal Transactions,
prior to the award of any contract exceeding $100,000.
(b) The contracting officer shall forward a copy of all contractor
disclosures furnished pursuant to the clause at 52.203-12, Limitation on
Payments to Influence Certain Federal Transactions, to the official
designated in accordance with agency procedures, for subsequent
submission to Congress. The original of the disclosure shall be retained
in the contract file.
Sec. 3.805 Exemption.
The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibitions of this section whenever
the Secretary determines, in writing, that such an exemption is in the
national interest. The Secretary shall transmit a copy of such exemption
to Congress immediately after making such a determination.
Sec. 3.806 Processing suspected violations.
Suspected violations of the requirements of the Act shall be
referred to the official designated in agency procedures.
Sec. 3.807 Civil penalties.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803
(except subsection (c)), 3804-3408, and 3812, insofar as the provisions
therein are not inconsistent with the requirements of this subpart.
Sec. 3.808 Solicitation provision and contract clause.
(a) The provision at 52.203-11, Certification and Disclosure
Regarding Payments to Influence Certain Federal Transactions, shall be
included in solicitations expected to exceed $100,000.
(b) The clause at 52.203-12, Limitation on Payments to Influence
Certain Federal Transactions, shall be included in solicitations and
contracts expected to exceed $100,000.
Subpart 3.9--Whistleblower Protections for Contractor Employees
Source: 60 FR 37776, July 21, 1995, unless otherwise noted.
Sec. 3.900 Scope of subpart.
This subpart implements 10 U.S.C. 2409 and 41 U.S.C. 251, et seq.,
as amended by Sections 6005 and 6006 of the Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355).
Sec. 3.901 Definitions.
Authorized official of an agency means an officer or employee
responsible for contracting, program management, audit, inspection,
investigation, or enforcement of any law or regulation relating to
Government procurement or the subject matter of the contract.
Authorized official of the Department of Justice means any person
responsible for the investigation, enforcement, or prosecution of any
law or regulation.
Inspector General means an Inspector General appointed under the
Inspector General Act of 1978, as amended. In the Department of Defense
that is the DOD Inspector General. In the case of an executive agency
that does not have an Inspector General, the duties shall be performed
by an official designated by the head of the executive agency.
Sec. 3.902 Applicability.
This subpart applies to all Government contracts.
Sec. 3.903 Policy.
Government contractors shall not discharge, demote or otherwise
discriminate against an employee as a reprisal for disclosing
information to a Member of Congress, or an authorized official of an
agency or of the Department of Justice, relating to a substantial
violation of law related to a contract (including the competition for or
negotiation of a contract).
[[Page 51]]
Sec. 3.904 Procedures for filing complaints.
(a) Any employee of a contractor who believes that he or she has
been discharged, demoted, or otherwise discriminated against contrary to
the policy in 3.903 may file a complaint with the Inspector General of
the agency that awarded the contract.
(b) The complaint shall be signed and shall contain--
(1) The name of the contractor;
(2) The contract number, if known; if not, a description reasonably
sufficient to identify the contract(s) involved;
(3) The substantial violation of law giving rise to the disclosure;
(4) The nature of the disclosure giving rise to the discriminatory
act; and
(5) The specific nature and date of the reprisal.
Sec. 3.905 Procedures for investigating complaints.
(a) Upon receipt of a complaint, the Inspector General shall conduct
an initial inquiry. If the Inspector General determines that the
complaint is frivolous or for other reasons does not merit further
investigation, the Inspector General shall advise the complainant that
no further action on the complaint will be taken.
(b) If the Inspector General determines that the complaint merits
further investigation, the Inspector General shall notify the
complainant, contractor, and head of the contracting activity. The
Inspector General shall conduct an investigation and provide a written
report of findings to the head of the agency or designee.
(c) Upon completion of the investigation, the head of the agency or
designee shall ensure that the Inspector General provides the report of
findings to--
(1) The complainant and any person acting on the complainant's
behalf;
(2) The contractor alleged to have committed the violation; and
(3) The head of the contracting activity.
(d) The complainant and contractor shall be afforded the opportunity
to submit a written response to the report of findings within 30 days to
the head of the agency or designee. Extensions of time to file a written
response may be granted by the head of the agency or designee.
(e) At any time, the head of the agency or designee may request
additional investigative work be done on the complaint.
Sec. 3.906 Remedies.
(a) If the head of the agency or designee determines that a
contractor has subjected one of its employees to a reprisal for
providing information to a Member of Congress, or an authorized official
of an agency or of the Department of Justice, the head of the agency or
designee may take one or more of the following actions:
(1) Order the contractor to take affirmative action to abate the
reprisal.
(2) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with the compensation
(including back pay), employment benefits, and other terms and
conditions of employment that would apply to the person in that position
if the reprisal had not been taken.
(3) Order the contractor to pay the complainant an amount equal to
the aggregate amount of all costs and expenses (including attorneys'
fees and expert witnesses' fees) that were reasonably incurred by the
complainant for, or in connection with, bringing the complaint regarding
the reprisal.
(b) Whenever a contractor fails to comply with an order, the head of
the agency or designee shall request the Department of Justice to file
an action for enforcement of such order in the United States district
court for a district in which the reprisal was found to have occurred.
In any action brought under this section, the court may grant
appropriate relief, including injunctive relief and compensatory and
exemplary damages.
(c) Any person adversely affected or aggrieved by an order issued
under this section may obtain review of the order's conformance with the
law, and this subpart, in the United States Court of Appeals for a
circuit in which the reprisal is alleged in the order to have occurred.
No petition seeking such review may be filed more than 60 days after
issuance of the order by the head of the agency or designee. Review
[[Page 52]]
shall conform to Chapter 7 of Title 5, United States Code.
PART 4--ADMINISTRATIVE MATTERS--Table of Contents
Sec.
4.000 Scope of part.
Subpart 4.1--Contract Execution
4.101 Contracting officer's signature.
4.102 Contractor's signature.
4.103 Contract clause.
Subpart 4.2--Contract Distribution
4.201 Procedures.
4.202 Agency distribution requirements.
4.203 Taxpayer identification information.
Subpart 4.3--Paper Documents
4.300 Scope of subpart.
4.301 Definition.
4.302 Policy.
4.303 Contract clause.
Subpart 4.4--Safeguarding Classified Information Within Industry
4.401 Definitions.
4.402 General.
4.403 Responsibilities of contracting officers.
4.404 Contract clause.
Subpart 4.5--Electronic Commerce in Contracting
4.500 Scope of subpart.
4.501 Definitions.
4.502 Policy.
Subpart 4.6--Contract Reporting
4.600 Scope of subpart.
4.601 Record requirements.
4.602 Federal Procurement Data System.
4.603 Solicitation provisions.
Subpart 4.7--Contractor Records Retention
4.700 Scope of subpart.
4.701 Purpose.
4.702 Applicability.
4.703 Policy.
4.704 Calculation of retention periods.
4.705 Specific retention periods.
4.705-1 Financial and cost accounting records.
4.705-2 Construction contracts pay administration records.
4.705-3 Acquisition and supply records.
4.706 [Reserved]
Subpart 4.8--Government Contract Files
4.800 Scope of subpart.
4.801 General.
4.802 Contract files.
4.803 Contents of contract files.
4.804 Closeout of contract files.
4.804-1 Closeout by the office administering the contract.
4.804-2 Closeout of the contracting office files if another office
administers the contract.
4.804-3 Closeout of paying office contract files.
4.804-4 Physically completed contracts.
4.804-5 Procedures for closing out contract files.
4.805 Storage, handling, and disposal of contract files.
Subpart 4.9--Taxpayer Identification Number Information
4.900 Scope of subpart.
4.901 Definitions.
4.902 General.
4.903 Reporting contract information to the IRS.
4.904 Reporting payment information to the IRS.
4.905 Solicitation provision.
Subpart 4.10--Administrative Matters
4.1001 Policy.
Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C.
2473(c).
Source: 48 FR 42113, Sept. 19, 1983, unless otherwise noted.
Sec. 4.000 Scope of part.
This part prescribes policies and procedures relating to the
administrative aspects of contract execution, contractor-submitted paper
documents, distribution, reporting, retention, and files.
[60 FR 28493, May 31, 1995]
Subpart 4.1--Contract Execution
Sec. 4.101 Contracting officer's signature.
Only contracting officers shall sign contracts on behalf of the
United States. The contracting officer's name and official title shall
be typed, stamped, or printed on the contract. The contracting officer
normally signs the contract after it has been signed by the contractor.
The contracting officer shall ensure that the signer(s) have authority
to bind the contractor (see specific requirements in 4.102 of this
subpart).
[60 FR 34736, July 3, 1995]
[[Page 53]]
Sec. 4.102 Contractor's signature.
(a) Individuals. A contract with an individual shall be signed by
that individual. A contract with an individual doing business as a firm
shall be signed by that individual, and the signature shall be followed
by the individual's typed, stamped, or printed name and the words ``, an
individual doing business as .......................'' [insert name of
firm].
(b) Partnerships. A contract with a partnership shall be signed in
the partnership name. Before signing for the Government, the contracting
officer shall obtain a list of all partners and ensure that the
individual(s) signing for the partnership have authority to bind the
partnership.
(c) Corporations. A contract with a corporation shall be signed in
the corporate name, followed by the word ``by'' and the signature and
title of the person authorized to sign. The contracting officer shall
ensure that the person signing for the corporation has authority to bind
the corporation.
(d) Joint venturers. A contract with joint venturers may involve any
combination of individuals, partnerships, or corporations. The contract
shall be signed by each participant in the joint venture in the manner
prescribed in paragraphs (a) through (c) above for each type of
participant. When a corporation is participating, the contracting
officer shall verify that the corporation is authorized to participate
in the joint venture.
(e) Agents. When an agent is to sign the contract, other than as
stated in paragraphs (a) through (d) above, the agent's authorization to
bind the principal must be established by evidence satisfactory to the
contracting officer.
[48 FR 42113, Sept. 19, 1983, as amended at 62 FR 235, Jan. 2, 1997]
Sec. 4.103 Contract clause.
The contracting officer shall insert the clause at 52.204-1,
Approval of Contract, in solicitations and contracts if required by
agency procedures.
[49 FR 26741, June 29, 1984]
Subpart 4.2--Contract Distribution
Sec. 4.201 Procedures.
Contracting officers shall distribute copies of contracts or
modifications within 10 working days after execution by all parties. As
a minimum, the contracting officer shall--
(a) Distribute simultaneously one signed copy or reproduction of the
signed contract to the contractor and the paying office;
(b) When a contract is assigned to another office for contract
administration (see subpart 42.2), provide to that office--
(1) One copy or reproduction of the signed contract and of each
modification; and
(2) A copy of the contract distribution list, showing those offices
that should receive copies of modifications, and any changes to the list
as they occur;
(c) Distribute one copy to each accounting and finance office
(funding office) whose funds are cited in the contract;
(d) When the contract is not assigned for administration but
contains a Cost Accounting Standards clause, provide one copy of the
contract to the cognizant administrative contracting officer and mark
the copy ``FOR COST ACCOUNTING STANDARDS ADMINISTRATION ONLY'' (see
30.601(b));
(e) Provide one copy of each contract or modification that requires
audit service to the appropriate field audit office listed in the
``Directory of Federal Contract Audit Offices'' (copies of this
directory can be ordered from the U.S. Government Printing Office,
Superintendent of Documents, Washington, DC 20402, referencing stock
numbers 008-007-03189-9 and 008-007-03190-2 for Volumes I and II,
respectively); and
(f) Provide copies of contracts and modifications to those
organizations required to perform contract administration support
functions (e.g., when manufacturing is performed at multiple sites, the
contract administration office cognizant of each location).
[48 FR 42113, Sept. 19, 1983, as amended at 60 FR 34736, July 3, 1995]
[[Page 54]]
Sec. 4.202 Agency distribution requirements.
Agencies shall limit additional distribution requirements to the
minimum necessary for proper performance of essential functions. When
contracts are assigned for administration to a contract administration
office located in an agency different from that of the contracting
office (see part 42), the two agencies shall agree on any necessary
distribution in addition to that prescribed in 4.201 above.
Sec. 4.203 Taxpayer identification information.
(a) If the contractor has furnished a Taxpayer Identification Number
(TIN) when completing the solicitation provision at 52.204-3, Taxpayer
Identification, or paragraph (b) of the solicitation provision at
52.212-3, Offeror Representations and Certifications--Commercial Items,
the contracting officer shall, unless otherwise provided in agency
procedures, attach a copy of the completed solicitation provision as the
last page of the copy of the contract sent to the payment office.
(b) If the TIN or type of organization is derived from a source
other than the provision at 52.204-3 or 52.212-3(b), the contracting
officer shall annotate the last page of the contract or order forwarded
to the payment office to state the contractor's TIN and type of
organization, unless this information is otherwise provided to the
payment office in accordance with agency procedures.
(c) If the contractor provides its TIN or type of organization to
the contracting officer after award, the contracting officer shall
forward the information to the payment office within 7 days of its
receipt.
(d) Federal Supply Schedule contracts. Each contracting officer that
places an order under a Federal Supply Schedule contract (see Subpart
8.4) shall provide the TIN and type of organization information to the
payment office in accordance with paragraph (b) of this section.
(e) Basic ordering agreements and indefinite-delivery contracts
(other than Federal Supply Schedule contracts).
(1) Each contracting officer that issues a basic ordering agreement
or indefinite-delivery contract (other than a Federal Supply Schedule
contract) shall provide to contracting officers placing orders under the
agreement or contract--
(i) A copy of the agreement or contract with a copy of the completed
solicitation provision at 52.204-3 or 52.212-3(b) as the last page of
the agreement or contract; or
(ii) The contractor's TIN and type of organization information.
(2) Each contracting officer that places an order under a basic
ordering agreement or indefinite-delivery contract (other than a Federal
Supply Schedule contract) shall provide the TIN and type of organization
information to the payment office in accordance with paragraph (a) or
(b) of this section.
[63 FR 58588, Oct. 30, 1998]
Subpart 4.3--Paper Documents
Sec. 4.300 Scope of subpart.
This subpart provides policies and procedures on contractor-
submitted paper documents.
[60 FR 28493, May 31, 1995]
Sec. 4.301 Definition.
Printed or copied double-sided, as used in this subpart, means
printing or reproducing a document so that information is on both sides
of a sheet of paper.
[65 FR 36017, June 6, 2000]
Sec. 4.302 Policy.
When electronic commerce methods (see 4.502) are not being used, a
contractor should submit paper documents to the Government relating to
an acquisition printed or copied double-sided on recycled paper whenever
practicable. If the contractor cannot print or copy double-sided, it
should print or copy single-sided on recycled paper.
[65 FR 36017, June 6, 2000]
Sec. 4.303 Contract clause.
Insert the clause at 52.204-4, Printed or Copied Double-Sided on
Recycled Paper, in solicitations and contracts that exceed the
simplified acquisition threshold.
[65 FR 36017, June 6, 2000]
[[Page 55]]
Subpart 4.4--Safeguarding Classified Information Within Industry
Sec. 4.401 Definitions.
Classified acquisition means an acquisition that consists of one or
more contracts in which offerors would be required to have access to
classified information (Confidential, Secret, or Top Secret) to properly
submit an offer or quotation, to understand the performance requirements
of a classified contract under the acquisition, or to perform the
contract.
Classified contract means any contract that requires, or will
require, access to classified information (Confidential, Secret, or Top
Secret) by the contractor or its employees in the performance of the
contract. A contract may be a classified contract even though the
contract document is not classified.
Classified information means any information or material, regardless
of its physical form or characteristics, that is owned by, produced by
or for, or under the control of the United States Government, and
determined pursuant to Executive Order 12356, April 2, 1982 (47 FR
14874, April 6, 1982) or prior orders to require protection against
unauthorized disclosure, and is so designated.
[48 FR 42113, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986]
Sec. 4.402 General.
(a) Executive Order 12829, January 6, 1993 (58 FR 3479, January 8,
1993), entitled ``National Industrial Security Program'' (NISP),
establishes a program to safeguard Federal Government classified
information that is released to contractors, licensees, and grantees of
the United States Government. Executive Order 12829 amends Executive
Order 10865, February 20, 1960 (25 FR 1583, February 25, 1960), entitled
``Safeguarding Classified Information Within Industry,'' as amended by
Executive Order 10909, January 17, 1961 (26 FR 508, January 20, 1961).
(b) The National Industrial Security Program Operating Manual
(NISPOM) incorporates the requirements of these Executive Orders. The
Secretary of Defense, in consultation with all affected agencies and
with the concurrence of the Secretary of Energy, the Chairman of the
Nuclear Regulatory Commission, and the Director of Central Intelligence,
is responsible for issuance and maintenance of this Manual. The
following DOD publications implement the program:
(1) National Industrial Security Program Operating Manual (NISPOM)
(DOD 5220.22-M).
(2) Industrial Security Regulation (ISR) (DOD 5220.22-R).
(c) Procedures for the protection of information relating to foreign
classified contracts awarded to U.S. industry, and instructions for the
protection of U.S. information relating to classified contracts awarded
to foreign firms, are prescribed in Chapter 10 of the NISPOM.
(d) Part 27, Patents, Data, and Copyrights, contains policy and
procedures for safeguarding classified information in patent
applications and patents.
[48 FR 42113, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996]
Sec. 4.403 Responsibilities of contracting officers.
(a) Presolicitation phase. Contracting officers shall review all
proposed solicitations to determine whether access to classified
information may be required by offerors, or by a contractor during
contract performance.
(1) If access to classified information of another agency may be
required, the contracting officer shall--
(i) Determine if the agency is covered by the NISP; and
(ii) Follow that agency's procedures for determining the security
clearances of firms to be solicited.
(2) If the classified information required is from the contracting
officer's agency, the contracting officer shall follow agency
procedures.
(b) Solicitation phase. Contracting officers shall--
(1) Ensure that the classified acquisition is conducted as required
by the NISP or agency procedures, as appropriate; and
(2) Include (i) an appropriate Security Requirements clause in the
solicitation (see 4.404), and (ii) as appropriate, in solicitations and
contracts
[[Page 56]]
when the contract may require access to classified information, a
requirement for security safeguards in addition to those provided in the
clause (52.204-2, Security Requirements).
(c) Award phase. Contracting officers shall inform contractors and
subcontractors of the security classifications and requirements assigned
to the various documents, materials, tasks, subcontracts, and components
of the classified contract as follows:
(1) Agencies covered by the NISP shall use the Contract Security
Classification Specification, DD Form 254. The contracting officer, or
authorized representative, is the approving official for the form and
shall ensure that it is prepared and distributed in accordance with the
ISR.
(2) Contracting officers in agencies not covered by the NISP shall
follow agency procedures.
[48 FR 42113, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996]
Sec. 4.404 Contract clause.
(a) The contracting officer shall insert the clause at 52.204-2,
Security Requirements, in solicitations and contracts when the contract
may require access to classified information, unless the conditions
specified in paragraph (d) below apply.
(b) If a cost contract (see 16.302) for research and development
with an educational institution is contemplated, the contracting officer
shall use the clause with its Alternate I.
(c) If a construction or architect-engineer contract where employee
identification is required for security reasons is contemplated, the
contracting officer shall use the clause with its Alternate II.
(d) If the contracting agency is not covered by the NISP and has
prescribed a clause and alternates that are substantially the same as
those at 52.204-2, the contracting officer shall use the agency-
prescribed clause as required by agency procedures.
[48 FR 42113, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996]
Subpart 4.5--Electronic Commerce in Contracting
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C.
2473(c).
Source: 63 FR 58592, Oct. 30, 1998, unless otherwise noted.
Sec. 4.500 Scope of subpart.
This subpart provides policy and procedures for the establishment
and use of electronic commerce in Federal acquisition as required by
Section 30 of the Office of Federal Procurement Policy (OFPP) Act (41
U.S.C. 426).
Sec. 4.501 Definitions.
Electronic data interchange (EDI), as used in this subpart, means a
technique for electronically transferring and storing formatted
information between computers utilizing established and published
formats and codes, as authorized by the applicable Federal Information
Processing Standards.
Single, Governmentwide point of entry, as used in this subpart,
means the one point of entry to be designated by the Administrator of
OFPP that will allow the private sector to electronically access
procurement opportunities Governmentwide.
Sec. 4.502 Policy.
(a) The Federal Government shall use electronic commerce whenever
practicable or cost-effective. The use of terms commonly associated with
paper transactions (e.g., ``copy,'' ``document,'' ``page,'' ``printed,''
``sealed envelope,'' and ``stamped'') shall not be interpreted to
restrict the use of electronic commerce. Contracting officers may
supplement electronic transactions by using other media to meet the
requirements of any contract action governed by the FAR (e.g., transmit
hard copy of drawings).
(b) Agencies may exercise broad discretion in selecting the hardware
and software that will be used in conducting electronic commerce.
However, as required by Section 30 of the OFPP Act (41 U.S.C. 426), the
head of each agency, after consulting with the Administrator of OFPP,
shall ensure that systems, technologies, procedures, and
[[Page 57]]
processes used by the agency to conduct electronic commerce--
(1) Are implemented uniformly throughout the agency, to the maximum
extent practicable;
(2) Are implemented only after considering the full or partial use
of existing infrastructures, (e.g., the Federal Acquisition Computer
Network (FACNET));
(3) Facilitate access to Government acquisition opportunities by
small business concerns, small disadvantaged business concerns, and
women-owned small business concerns;
(4) Include a means of providing widespread public notice of
acquisition opportunities through the single, Governmentwide point of
entry and a means of responding to notices or solicitations
electronically; and
(5) Comply with nationally and internationally recognized standards
that broaden interoperability and ease the electronic interchange of
information, such as standards established by the National Institute of
Standards and Technology.
(c) Before using electronic commerce, the agency head shall ensure
that the agency systems are capable of ensuring authentication and
confidentiality commensurate with the risk and magnitude of the harm
from loss, misuse, or unauthorized access to or modification of the
information.
Subpart 4.6--Contract Reporting
Sec. 4.600 Scope of subpart.
This subpart prescribes uniform reporting requirements for the
Federal Procurement Data System (FPDS).
Sec. 4.601 Record requirements.
(a) Each executive agency shall establish and maintain for a period
of 5 years a computer file, by fiscal year, containing unclassified
records of all procurements exceeding $25,000.
(b) With respect to each procurement carried out using competitive
procedures, agencies shall be able to access from the computer file, as
a minimum, the following information:
(1) The date of contract award.
(2) Information identifying the source to whom the contract was
awarded.
(3) The property or services obtained by the Government under the
procurement.
(4) The total cost of the procurement.
(5) Those procurements which result in the submission of a single
bid or proposal so that they can be separately categorized and
designated noncompetitive procurements using competitive procedures.
(c) In addition to paragraph (b) of this section with respect to
each procurement carried out using procedures other than competitive
procedures, agencies shall be able to access from the computer file--
(1) The reason under subpart 6.3 for the use of such procedures; and
(2) The identity of the organization or activity which conducted the
procurement.
(d) In addition to the information described in paragraphs (b) and
(c) of this section, for procurements in excess of $25,000, agencies
shall be able to access information on the following from the computer
file:
(1) Awards to small disadvantaged businesses using either set-asides
or full and open competition.
(2) Awards to business concerns owned and controlled by women.
(3) The number of offers received in response to a solicitation.
(4) Task or delivery order contracts.
(5) Contracts for the acquisition of commercial items.
(e) In addition to the information described in paragraphs (b), (c),
and (d) of this section, agencies must be able to access information
from the computer file to identify bundled contracts with a total
contract value, including all options, exceeding $5,000,000.
(f) Agencies must transmit this information to the Federal
Procurement Data System in accordance with its procedures.
[50 FR 52429, Dec. 23, 1985, as amended at 52 FR 19802, May 27, 1987; 60
FR 42653, Aug. 16, 1995; 64 FR 72442, Dec. 27, 1999]
Sec. 4.602 Federal Procurement Data System.
(a) The FPDS provides a comprehensive mechanism for assembling,
organizing, and presenting contract placement data for the Federal
Government. Federal agencies report data to the
[[Page 58]]
Federal Procurement Data Center (FPDC), which collects, processes, and
disseminates official statistical data on Federal contracting. The data
provide (1) a basis for recurring and special reports to the President,
the Congress, the General Accounting Office, Federal executive agencies,
and the general public; (2) a means of measuring and assessing the
impact of Federal contracting on the Nation's economy and the extent to
which small, small disadvantaged and women-owned small business concerns
are sharing in Federal contracts; and (3) data for other policy and
management control purposes.
(b) The FPDS Reporting Manual provides a complete list of reporting
and nonreporting agencies and organizations. This manual (available at
no charge from the General Services Administration, Federal Procurement
Data Center, 7th & D Streets SW., room 5652, Washington, DC 20407,
telephone (202) 401-1529, FAX (202) 401-1546) provides the necessary
instruction to the data collection point in each agency as to what data
are required and how often to provide the data.
(c) Data collection points in each agency report data on SF 279,
Federal Procurement Data System (FPDS) Individual Contract Action
Report, and SF 281, Federal Procurement Data System (FPDS) Summary
Contract Action Report ($25,000 or Less), or computer-generated
equivalent. Although the SF 279 and SF 281 are not mandatory for use by
the agencies, they do provide the mandatory format for submitting data
to the FPDS.
(d) The contracting officer shall report a Contractor Identification
Number for each successful offeror. A Data Universal Numbering System
(DUNS) number, which is a nine-digit number assigned by Dun and
Bradstreet Information Services to an establishment, is the Contractor
Identification Number for Federal contractors. The DUNS number reported
must identify the successful offeror's name and address exactly as
stated in the offer and resultant contract. The contracting officer
shall ask the offeror to provide its DUNS number by using the provision
prescribed at 4.603(a). If the successful offeror does not provide its
number, the contracting officer shall contact the offeror and obtain the
DUNS number.
[48 FR 42113, Sept. 19. 1983. Redesignated at 50 FR 52429, Dec. 23,
1985, and amended at 54 FR 29280, July 11, 1989; 53 FR 43388, Oct. 26,
1988; 55 FR 52788, Dec. 21, 1990; 56 FR 41744, Aug. 22, 1991; 57 FR
60572, Dec. 21, 1992; 60 FR 48259, Sept. 18, 1995; 61 FR 67412, Dec. 20,
1996; 62 FR 40236, July 25, 1997]
Sec. 4.603 Solicitation provisions.
(a)(1) The contracting officer shall insert the provision at 52.204-
6, Data Universal Numbering System (DUNS) Number, in solicitations that
are expected to result in a requirement for the generation of an SF 279,
Federal Procurement Data System (FPDS)--Individual Contract Action
Report (see 4.602(c)), or a similar agency form.
(2) For offerors located outside the United States, the contracting
officer may modify paragraph (c) of the provision at 52.204-6 to provide
the correct phone numbers for the Dun and Bradstreet offices in the
areas from which offerors are anticipated to respond.
(b) The contracting officer shall insert the provision at 52.204-5,
Women-Owned Business (Other Than Small Business), in all solicitations
that are not set aside for small business concerns and that exceed the
simplified acquisition threshold, if the contract is to be performed
inside the United States, its territories or possessions, Puerto Rico,
the Trust Territory of the Pacific Islands, or the District of Columbia.
[61 FR 67412, Dec. 20, 1996, as amended at 63 FR 9050, Feb. 23, 1998; 64
FR 10532, Mar. 4, 1999]
Subpart 4.7--Contractor Records Retention
Sec. 4.700 Scope of subpart.
This subpart provides policies and procedures for retention of
records by contractors to meet the records review requirements of the
Government. In this subpart, the terms ``contracts'' and ``contractors''
include ``subcontracts'' and ``subcontractors.''
[[Page 59]]
Sec. 4.701 Purpose.
The purpose of this subpart is to generally describe records
retention requirements and to allow reductions in the retention period
for specific classes of records under prescribed circumstances.
Sec. 4.702 Applicability.
(a) This subpart applies to records generated under contracts that
contain one of the following clauses:
(1) Audit and Records--Sealed Bidding (52.214-26).
(2) Audit and Records--Negotiation (52.215-2).
(b) This subpart is not mandatory on Department of Energy contracts
for which the Comptroller General allows alternative records retention
periods. Apart from this exception, this subpart applies to record
retention periods under contracts that are subject to Chapter 137, Title
10, U.S.C., and the Federal Property and Administrative Services Act of
1949, as amended, 40 U.S.C. 471 et seq.
[48 FR 42113, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 60 FR 42650, Aug. 16, 1995; 60 FR 48211,
Sept. 18, 1995; 62 FR 258, Jan. 2, 1997]
Sec. 4.703 Policy.
(a) Except as stated in 4.703(b), contractors shall make available
records, which includes books, documents, accounting procedures and
practices, and other data, regardless of type and regardless of whether
such items are in written form, in the form of computer data, or in any
other form, and other supporting evidence to satisfy contract
negotiation, administration, and audit requirements of the contracting
agencies and the Comptroller General for (1) 3 years after final payment
or, for certain records, (2) the period specified in 4.705 through
4.705-3, whichever of these periods expires first.
(b) Contractors shall make available the foregoing records and
supporting evidence for a longer period of time than is required in
4.703(a) if--
(1) A retention period longer than that cited in 4.703(a) is
specified in any contract clause; or
(2) The contractor, for its own purposes, retains the foregoing
records and supporting evidence for a longer period. Under this
circumstance, the retention period shall be the period of the
contractor's retention or 3 years after final payment, whichever period
expires first.
(3) The contractor does not meet the original due date for
submission of final indirect cost rate proposals specified in
subparagraph (d)(2) of the clause at 52.216-7, Allowable Cost and
Payment, and subparagraph (c)(2) of the clause at 52.216-13, Allowable
Cost and Payment--Facilities. Under these circumstances, the retention
periods in 4.705 shall be automatically extended one day for each day
the proposal is not submitted after the original due date.
(c) Nothing in this section shall be construed to preclude a
contractor from duplicating or storing original records in electronic
form unless they contain significant information not shown on the record
copy. Original records need not be maintained or produced in an audit if
the contractor or subcontractor provides photographic or electronic
images of the original records and meets the following requirements:
(1) The contractor or subcontractor has established procedures to
ensure that the imaging process preserves accurate images of the
original records, including signatures and other written or graphic
images, and that the imaging process is reliable and secure so as to
maintain the integrity of the records.
(2) The contractor or subcontractor maintains an effective indexing
system to permit timely and convenient access to the imaged records.
(3) The contractor or subcontractor retains the original records for
a minimum of one year after imaging to permit periodic validation of the
imaging systems.
(d) If the information described in paragraph (a) of this section is
maintained on a computer, contractors shall retain the computer data on
a reliable medium for the time periods prescribed. Contractors may
transfer computer data in machine readable form from one reliable
computer medium to another. Contractors' computer data retention and
transfer procedures shall
[[Page 60]]
maintain the integrity, reliability, and security of the original
computer data. Contractors shall also retain an audit trail describing
the data transfer. For the record retention time periods prescribed,
contractors shall not destroy, discard, delete, or write over such
computer data.
[48 FR 42113, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986;
53 FR 43388, Oct. 26, 1988; 54 FR 48982, Nov. 28, 1989; 59 FR 67015,
Dec. 28, 1994; 60 FR 42650, Aug. 16, 1995; 62 FR 64915, Dec. 9, 1997]
Sec. 4.704 Calculation of retention periods.
(a) The retention periods in 4.705 are calculated from the end of
the contractor's fiscal year in which an entry is made charging or
allocating a cost to a Government contract or subcontract. If a specific
record contains a series of entries, the retention period is calculated
from the end of the contractor's fiscal year in which the final entry is
made. The contractor should cut off the records in annual blocks and
retain them for block disposal under the prescribed retention periods.
(b) When records generated during a prior contract are relied upon
by a contractor for cost or pricing data in negotiating a succeeding
contract, the prescribed periods shall run from the date of the
succeeding contract.
(c) If two or more of the record categories described in 4.705 are
interfiled and screening for disposal is not practical, the contractor
shall retain the entire record series for the longest period prescribed
for any category of records.
Sec. 4.705 Specific retention periods.
The contractor shall retain the records identified in 4.705-1
through 4.705-3 for the periods designated, provided retention is
required under 4.702. Records are identified in this subpart in terms of
their purpose or use and not by specific name or form number. Although
the descriptive identifications may not conform to normal contractor
usage or filing practices, these identifications apply to all contractor
records that come within the description.
Sec. 4.705-1 Financial and cost accounting records.
(a) Accounts receivable invoices, adjustments to the accounts,
invoice registers, carrier freight bills, shipping orders, and other
documents which detail the material or services billed on the related
invoices: Retain 4 years.
(b) Material, work order, or service order files, consisting of
purchase requisitions or purchase orders for material or services, or
orders for transfer of material or supplies: Retain 4 years.
(c) Cash advance recapitulations, prepared as posting entries to
accounts receivable ledgers for amounts of expense vouchers prepared for
employees' travel and related expenses: Retain 4 years.
(d) Paid, canceled, and voided checks, other than those issued for
the payment of salary and wages: Retain 4 years.
(e) Accounts payable records to support disbursements of funds for
materials, equipment, supplies, and services, containing originals or
copies of the following and related documents: remittance advices and
statements, vendors' invoices, invoice audits and distribution slips,
receiving and inspection reports or comparable certifications of receipt
and inspection of material or services, and debit and credit memoranda:
Retain 4 years.
(f) Labor cost distribution cards or equivalent documents: Retain 2
years.
(g) Petty cash records showing description of expenditures, to whom
paid, name of person authorizing payment, and date, including copies of
vouchers and other supporting documents: Retain 2 years.
Sec. 4.705-2 Construction contracts pay administration records.
(a) Payroll sheets, registers, or their equivalent, of salaries and
wages paid to individual employees for each payroll period; change
slips; and tax withholding statements: Retain 3 years after completion
of contract, unless contract performance is the subject of enforcement
action.
(b) Clock cards or other time and attendance cards: Retain 2 years.
[[Page 61]]
(c) Paid checks, receipts for wages paid in cash, or other evidence
of payments for services rendered by employees: Retain 2 years.
[48 FR 42113, Sept. 19, 1983, as amended at 65 FR 36022, June 6, 2000]
Sec. 4.705-3 Acquisition and supply records.
(a) Store requisitions for materials, supplies, equipment, and
services: Retain 2 years.
(b) Work orders for maintenance and other services: Retain 4 years.
(c) Equipment records, consisting of equipment usage and status
reports and equipment repair orders: Retain 4 years.
(d) Expendable property records, reflecting accountability for the
receipt and use of material in the performance of a contract: Retain 4
years.
(e) Receiving and inspection report records, consisting of reports
reflecting receipt and inspection of supplies, equipment, and materials:
Retain 4 years.
(f) Purchase order files for supplies, equipment, material, or
services used in the performance of a contract; supporting documentation
and backup files including, but not limited to, invoices, and memoranda;
e.g., memoranda of negotiations showing the principal elements of
subcontract price negotiations (see 52.244-2): Retain 4 years.
(g) Production records of quality control, reliability, and
inspection: Retain 4 years.
[48 FR 42113, Sept. 19, 1983, as amended at 63 FR 34060, June 22, 1998]
Sec. 4.706 [Reserved]
Subpart 4.8--Government Contract Files
Sec. 4.800 Scope of subpart.
This subpart prescribes requirements for establishing, maintaining,
and disposing of contract files.
[65 FR 36022, June 6, 2000]
Sec. 4.801 General.
(a) The head of each office performing contracting, contract
administration, or paying functions shall establish files containing the
records of all contractual actions.
(b) The documentation in the files (see 4.803) shall be sufficient
to constitute a complete history of the transaction for the purpose of--
(1) Providing a complete background as a basis for informed
decisions at each step in the acquisition process;
(2) Supporting actions taken;
(3) Providing information for reviews and investigations; and
(4) Furnishing essential facts in the event of litigation or
congressional inquiries.
(c) The files to be established include--
(1) A file for cancelled solicitations;
(2) A file for each contract; and
(3) A file such as a contractor general file, containing documents
relating--for example--to (i) no specific contract, (ii) more than one
contract, or (iii) the contractor in a general way (e.g., contractor's
management systems, past performance, or capabilities).
Sec. 4.802 Contract files.
(a) A contract file should generally consist of--
(1) The contracting office contract file, which shall document the
basis for the acquisition and the award, the assignment of contract
administration (including payment responsibilities), and any subsequent
actions taken by the contracting office;
(2) The contract administration office contract file, which shall
document actions reflecting the basis for and the performance of
contract administration responsibilities; and
(3) The paying office contract file, which shall document actions
prerequisite to, substantiating, and reflecting contract payments.
(b) Normally, each file should be kept separately; however, if
appropriate, any or all of the files may be combined; e.g., if all
functions or any combination of the functions are performed by the same
office.
(c) Files shall be maintained at organizational levels that shall
ensure--
(1) Effective documentation of contract actions;
(2) Ready accessibility to principal users;
[[Page 62]]
(3) Minimal establishment of duplicate and working files;
(4) The safeguarding of classified documents; and
(5) Conformance with agency regulations for file location and
maintenance.
(d) If the contract files or file segments are decentralized (e.g.,
by type or function) to various organizational elements or to other
outside offices, responsibility for their maintenance shall be assigned.
A central control and, if needed, a locator system should be established
to ensure the ability to locate promptly any contract files.
(e) Contents of contract files that are contractor bid or proposal
information or source selection information as defined in 3.104-3 shall
be protected from disclosure to unauthorized persons (see 3.104-5).
(f) Agencies may retain contract files in any medium (paper,
electronic, microfilm, etc.) or any combination of media, as long as the
requirements of this subpart are satisfied.
[48 FR 42113, Sept. 19, 1983, as amended at 54 FR 20496, May 11, 1989;
55 FR 36794, Sept. 6, 1990; 59 FR 67016, Dec. 28, 1994; 62 FR 232, Jan.
2, 1997]
Sec. 4.803 Contents of contract files.
The following are examples of the records normally contained, if
applicable, in contract files:
(a) Contracting office contract file. (1) Purchase request,
acquisition planning information, and other presolicitation documents.
(2) Justifications and approvals, determinations and findings, and
associated documents.
(3) Evidence of availability of funds.
(4) Synopsis of proposed acquisition as published in the Commerce
Business Daily or reference thereto.
(5) The list of sources solicited, and a list of any firms or
persons whose requests for copies of the solicitation were denied,
together with the reasons for denial.
(6) Set-aside decision.
(7) Government estimate of contract price.
(8) A copy of the solicitation and all amendments thereto.
(9) Security requirements and evidence of required clearances.
(10) A copy of each offer or quotation, the related abstract, and
records of determinations concerning late offers or quotations.
Unsuccessful offers or quotations may be maintained separately, if
cross-referenced to the contract file. The only portions of the
unsuccessful offer or quotation that need be retained are--
(i) Completed solicitation sections A, B, and K;
(ii) Technical and management proposals;
(iii) Cost/price proposals;
(iv) Any other pages of the solicitation that the offeror or quoter
has altered or annotated.
(11) Contractor's certifications and representations.
(12) Preaward survey reports or reference to previous preaward
survey reports relied upon.
(13) Source selection documentation.
(14) Contracting officer's determination of the contractor's
responsibility.
(15) Small Business Administration Certificate of Competency.
(16) Records of contractor's compliance with labor policies
including equal employment opportunity policies.
(17) Cost or pricing data and Certificates of Current Cost or
Pricing Data or a required justification for waiver, or information
other than cost or pricing data.
(18) Packaging and transportation data.
(19) Cost or price analysis.
(20) Audit reports or reasons for waiver.
(21) Record of negotiation.
(22) Justification for type of contract.
(23) Authority for deviations from this regulation, statutory
requirements, or other restrictions.
(24) Required approvals of award and evidence of legal review.
(25) Notice of award.
(26) The original of (i) the signed contract or award, (ii) all
contract modifications, and (iii) documents supporting modifications
executed by the contracting office.
(27) Synopsis of award or reference thereto.
(28) Notice to unsuccessful quoters or offerors and record of any
debriefing.
[[Page 63]]
(29) Acquisition management reports (see subpart 4.6).
(30) Bid, performance, payment, or other bond documents, or a
reference thereto, and notices to sureties.
(31) Report of postaward conference.
(32) Notice to proceed, stop orders, and any overtime premium
approvals granted at the time of award.
(33) Documents requesting and authorizing modification in the normal
assignment of contract administration functions and responsibility.
(34) Approvals or disapprovals of requests for waivers or deviations
from contract requirements.
(35) Rejected engineering change proposals.
(36) Royalty, invention, and copyright reports (including invention
disclosures) or reference thereto.
(37) Contract completion documents.
(38) Documentation regarding termination actions for which the
contracting office is responsible.
(39) Cross-references to pertinent documents that are filed
elsewhere.
(40) Any additional documents on which action was taken or that
reflect actions by the contracting office pertinent to the contract.
(41) A current chronological list identifying the awarding and
successor contracting officers, with inclusive dates of responsibility.
(b) Contract administration office contract file. (1) Copy of the
contract and all modifications, together with official record copies of
supporting documents executed by the contract administration office.
(2) Any document modifying the normal assignment of contract
administration functions and responsibility.
(3) Security requirements.
(4) Cost or pricing data, Certificates of Current Cost or Pricing
Data, or information other than cost or pricing data; cost or price
analysis; and other documentation supporting contractual actions
executed by the contract administration office.
(5) Preaward survey information.
(6) Purchasing system information.
(7) Consent to subcontract or purchase.
(8) Performance and payment bonds and surety information.
(9) Postaward conference records.
(10) Orders issued under the contract.
(11) Notice to proceed and stop orders.
(12) Insurance policies or certificates of insurance or references
to them.
(13) Documents supporting advance or progress payments.
(14) Progressing, expediting, and production surveillance records.
(15) Quality assurance records.
(16) Property administration records.
(17) Documentation regarding termination actions for which the
contract administration office is responsible.
(18) Cross reference to other pertinent documents that are filed
elsewhere.
(19) Any additional documents on which action was taken or that
reflect actions by the contract administration office pertinent to the
contract.
(20) Contract completion documents.
(c) Paying office contract file. (1) Copy of the contract and any
modifications.
(2) Bills, invoices, vouchers, and supporting documents.
(3) Record of payments or receipts.
(4) Other pertinent documents.
[48 FR 42113, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 54 FR 5054, Jan. 31, 1989; 55 FR 36794,
Sept. 6, 1990; 60 FR 48211, Sept. 18, 1995; 61 FR 39188, July 26, 1996;
61 FR 67430, Dec. 20, 1996; 62 FR 232, Jan. 2, 1997; 63 FR 9052, Feb.
23, 1998; 65 FR 46074, July 26, 2000]
Sec. 4.804 Closeout of contract files.
Sec. 4.804-1 Closeout by the office administering the contract.
(a) Except as provided in paragraph (c) below, time standards for
closing out contract files are as follows:
(1) Files for contracts using simplified acquisition procedures
should be considered closed when the contracting officer receives
evidence of receipt of property and final payment, unless otherwise
specified by agency regulations.
(2) Files for firm-fixed-price contracts, other than those using
simplified acquisition procedures, should be closed within 6 months
after the date on which the contracting officer receives evidence of
physical completion.
(3) Files for contracts requiring settlement of indirect cost rates
should be closed within 36 months of the month
[[Page 64]]
in which the contracting officer receives evidence of physical
completion.
(4) Files for all other contracts should be closed within 20 months
of the month in which the contracting officer receives evidence of
physical completion.
(b) When closing out the contract files at 4.804-1(a)(2), (3), and
(4), the contracting officer shall use the closeout procedures at 4.804-
5. However, these closeout actions may be modified to reflect the extent
of administration that has been performed. Quick closeout procedures
(see 42.708) should be used, when appropriate, to reduce administrative
costs and to enable deobligation of excess funds.
(c) A contract file shall not be closed if (1) the contract is in
litigation or under appeal, or (2) in the case of a termination, all
termination actions have not been completed.
[48 FR 42113, Sept. 19, 1983, as amended at 54 FR 34752, Aug. 21, 1989;
60 FR 34746, July 3, 1995]
Sec. 4.804-2 Closeout of the contracting office files if another office administers the contract.
(a) Contract files for contracts using simplified acquisition
procedures should be considered closed when the contracting officer
receives evidence of receipt of property and final payment, unless
otherwise specified by agency regulation.
(b) All other contract files shall be closed as soon as practicable
after the contracting officer receives a contract completion statement
from the contract administration office. The contracting officer shall
ensure that all contractual actions required have been completed and
shall prepare a statement to that effect. This statement is authority to
close the contract file and shall be made a part of the official
contract file.
[48 FR 42113, Sept. 19, 1983, as amended at 60 FR 34746, July 3, 1995]
Sec. 4.804-3 Closeout of paying office contract files.
The paying office shall close the contract file upon issuance of the
final payment voucher.
Sec. 4.804-4 Physically completed contracts.
(a) Except as provided in paragraph (b) below, a contract is
considered to be physically completed when--
(1)(i) The contractor has completed the required deliveries and the
Government has inspected and accepted the supplies;
(ii) The contractor has performed all services and the Government
has accepted these services; and
(iii) All option provisions, if any, have expired; or
(2) The Government has given the contractor a notice of complete
contract termination.
(b) Facilities contracts and rental, use, and storage agreements are
considered to be physically completed when--
(1) The Government has given the contractor a notice of complete
contract termination; or
(2) The contract period has expired.
Sec. 4.804-5 Procedures for closing out contract files.
(a) The contract administration office is responsible for initiating
(automated or manual) administrative closeout of the contract after
receiving evidence of its physical completion. At the outset of this
process, the contract administration office must review the contract
funds status and notify the contracting office of any excess funds the
contract administration office might deobligate. When complete, the
administrative closeout procedures must ensure that--
(1) Disposition of classified material is completed;
(2) Final patent report is cleared;
(3) Final royalty report is cleared;
(4) There is no outstanding value engineering change proposal;
(5) Plant clearance report is received;
(6) Property clearance is received;
(7) All interim or disallowed costs are settled;
(8) Price revision is completed;
(9) Subcontracts are settled by the prime contractor;
(10) Prior year indirect cost rates are settled;
(11) Termination docket is completed;
(12) Contract audit is completed;
[[Page 65]]
(13) Contractor's closing statement is completed;
(14) Contractor's final invoice has been submitted; and
(15) Contract funds review is completed and excess funds
deobligated.
(b) When the actions in paragraph (a) above have been verified, the
contracting officer administering the contract must ensure that a
contract completion statement, containing the following information, is
prepared:
(1) Contract administration office name and address (if different
from the contracting office).
(2) Contracting office name and address.
(3) Contract number.
(4) Last modification number.
(5) Last call or order number.
(6) Contractor name and address.
(7) Dollar amount of excess funds, if any.
(8) Voucher number and date, if final payment has been made.
(9) Invoice number and date, if the final approved invoice has been
forwarded to a disbursing office of another agency or activity and the
status of the payment is unknown.
(10) A statement that all required contract administration actions
have been fully and satisfactorily accomplished.
(11) Name and signature of the contracting officer.
(12) Date.
(c) When the statement is completed, the contracting officer must
ensure that--
(1) The signed original is placed in the contracting office contract
file (or forwarded to the contracting office for placement in the files
if the contract administration office is different from the contracting
office); and
(2) A signed copy is placed in the appropriate contract
administration file if administration is performed by a contract
administration office.
[48 FR 42113, Sept. 19, 1983, as amended at 54 FR 34752, Aug. 21, 1989;
64 FR 72445, Dec. 27, 1999]
Sec. 4.805 Storage, handling, and disposal of contract files.
(a) Agencies must prescribe procedures for the handling, storing,
and disposing of contract files. These procedures must take into account
documents held in all types of media, including microfilm and various
electronic media. Agencies may change the original medium to facilitate
storage as long as the requirements of Part 4, law, and other
regulations are satisfied. The process used to create and store records
must record and reproduce the original document, including signatures
and other written and graphic images completely, accurately, and
clearly. Data transfer, storage, and retrieval procedures must protect
the original data from alteration. Unless law or other regulations
require signed originals to be kept, they may be destroyed after the
responsible agency official verifies that record copies on alternate
media and copies reproduced from the record copy are accurate, complete,
and clear representations of the originals. Agency procedures for
contract file disposal must include provisions that the documents
specified in paragraph (b) of this section may not be destroyed before
the times indicated, and may be retained longer if the responsible
agency official determines that the files have future value to the
Government. When original documents have been converted to alternate
media for storage, the requirements in paragraph (b) of this section
also apply to the record copies in the alternate media.
(b) If administrative records are mixed with program records and
cannot be economically segregated, the entire file should be kept for
the period of time approved for the program records. Similarly, if
documents described in the following table are part of a subject or case
file that documents activities that are not described in the table, they
should be treated in the same manner as the files of which they are a
part. The retention periods for acquisitions at or below the simplified
acquisition threshold also apply to acquisitions conducted prior to July
3, 1995, that used small purchase procedures. The retention periods for
acquisitions above the simplified acquisition threshold also apply to
acquisitions conducted prior to July 3, 1995, that used other than small
purchase procedures.
[[Page 66]]
------------------------------------------------------------------------
Document Retention period
------------------------------------------------------------------------
(1) Records pertaining to Contract 6 years and 3 months after
Disputes Act actions. final action or decision
for files created prior to
October 1, 1979. 1 year
after final action or
decision for files created
on or after October 1,
1979.
------------------------------------------------------------------------
(2) Contracts (and related records or 6 years and 3 months after
documents, including successful final payment.
proposals) exceeding the simplified
acquisition threshold for other than
construction.
------------------------------------------------------------------------
(3) Contracts (and related records or 3 years after final payment.
documents, including successful
proposals) at or below the simplified
acquisition threshold for other than
construction.
------------------------------------------------------------------------
(4) Construction contracts:
(i) Above $2,000...................... 6 years and 3 months after
final payment.
------------------------------------------------------------------------
(ii) $2,000 or less................... 3 years after final
payment.
------------------------------------------------------------------------
(iii) Related records or documents, Same as contract file.
including successful proposals,
except for contractor's payrolls (see
(b)(4)(iv)).
------------------------------------------------------------------------
(iv) Contractor's payrolls submitted 3 years after contract
in accordance with Department of completion unless contract
Labor regulations, with related performance is the subject
certifications, anti-kickback of an enforcement action on
affidavits, and other related papers. that date.
------------------------------------------------------------------------
(5) Solicited and unsolicited unsuccessful
offers, quotations, bids, and proposals:
(i) Relating to contracts above the If filed separately from
simplified acquisition threshold. contract file, until
contract is completed.
Otherwise, the same as
related contract file.
------------------------------------------------------------------------
(ii) Relating to contracts at or below 1 year after date of award
the simplified acquisition threshold. or until final payment,
whichever is later.
------------------------------------------------------------------------
(6) Files for canceled solicitations...... 5 years after cancellation.
------------------------------------------------------------------------
(7) Other copies of procurement file Upon termination or
records used by component elements of a completion.
contracting office for administrative
purposes.
------------------------------------------------------------------------
(8) Documents pertaining generally to the Until superseded or
contractor as described at 4.801(c)(3). obsolete.
------------------------------------------------------------------------
(9) Data submitted to the Federal 5 years after submittal to
Procurement Data System (FPDS). FPDS.
Electronic data file maintained by fiscal
year, containing unclassified records of
all procurements other than simplified
acquisitions, and information required
under 4.601.
------------------------------------------------------------------------
(10) Investigations, cases pending or in Until final clearance or
litigation (including protests), or settlement, or, if related
similar matters. to a document identified in
(b)(1)-(9), for the
retention period specified
for the related document,
whichever is later.
------------------------------------------------------------------------
[65 FR 36022, June 6, 2000]
Subpart 4.9--Taxpayer Identification Number Information
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C.
2473(c).
Source: 63 FR 58589, Oct. 30, 1998, unless otherwise noted.
Sec. 4.900 Scope of subpart.
This subpart provides policies and procedures for obtaining--
(a) Taxpayer Identification Number (TIN) information that may be
used for debt collection purposes; and
(b) Contract information and payment information for submittal to
the payment office for Internal Revenue Service (IRS) reporting
purposes.
Sec. 4.901 Definitions.
Common parent, as used in this subpart, means that corporate entity
that owns or controls an affiliated group of corporations that files its
Federal income tax returns on a consolidated basis, and of which the
offeror is a member.
Taxpayer Identification Number (TIN), as used in this subpart, means
the number required by the IRS to be used by the offeror in reporting
income tax and other returns. The TIN may be either a Social Security
Number or an Employer Identification Number.
Sec. 4.902 General.
(a) Debt collection. 31 U.S.C. 7701(c) requires each contractor
doing business with a Government agency to furnish
[[Page 67]]
its TIN to that agency. 31 U.S.C. 3325(d) requires the Government to
include, with each certified voucher prepared by the Government payment
office and submitted to a disbursing official, the TIN of the contractor
receiving payment under the voucher. The TIN may be used by the
Government to collect and report on any delinquent amounts arising out
of the contractor's relationship with the Government.
(b) Information reporting to the IRS. The TIN is also required for
Government reporting of certain contract information (see 4.903) and
payment information (see 4.904) to the IRS.
Sec. 4.903 Reporting contract information to the IRS.
(a) 26 U.S.C. 6050M, as implemented in 26 CFR, requires heads of
Federal executive agencies to report certain information to the IRS.
(b)(1) The required information applies to contract modifications--
(i) Increasing the amount of a contract awarded before January 1,
1989, by $50,000 or more; and
(ii) Entered into on or after April 1, 1990.
(2) The reporting requirement also applies to certain contracts and
modifications thereto in excess of $25,000 entered into on or after
January 1, 1989.
(c) The information to report is--
(1) Name, address, and TIN of the contractor;
(2) Name and TIN of the common parent (if any);
(3) Date of the contract action;
(4) Amount obligated on the contract action; and
(5) Estimated contract completion date.
(d) Transmit the information to the IRS through the Federal
Procurement Data System (see Subpart 4.6 and implementing instructions).
Sec. 4.904 Reporting payment information to the IRS.
26 U.S.C. 6041 and 6041A, as implemented in 26 CFR, in part, require
payors, including Government agencies, to report to the IRS, on Form
1099, payments made to certain contractors. 26 U.S.C. 6109 requires a
contractor to provide its TIN if a Form 1099 is required. The payment
office is responsible for submitting reports to the IRS.
Sec. 4.905 Solicitation provision.
The contracting officer shall insert the provision at 52.204-3,
Taxpayer Identification, in solicitations that are not conducted under
the procedures of Part 12, unless the TIN, type of organization, and
common parent information for each offeror will be obtained from some
other source (e.g., centralized database) in accordance with agency
procedures.
Subpart 4.10--Administrative Matters
Source: 62 FR 51230, Sept. 30, 1997, unless otherwise noted.
Sec. 4.1001 Policy.
Contracts may identify the items or services to be acquired as
separately identified line items. Contract line items should provide
unit prices or lump sum prices for separately identifiable contract
deliverables, and associated delivery schedules or performance periods.
Line items may be further subdivided or stratified for administrative
purposes (e.g., to provide for traceable accounting classification
citations).
[62 FR 51230, Sept. 30, 1997]
[[Page 68]]
SUBCHAPTER B--ACQUISITION PLANNING
PART 5--PUBLICIZING CONTRACT ACTIONS--Table of Contents
Sec.
5.000 Scope of part.
5.001 Definition.
5.002 Policy.
Subpart 5.1--Dissemination of Information
5.101 Methods of disseminating information.
5.102 Availability of solicitations.
Subpart 5.2--Synopses of Proposed Contract Actions
5.201 General.
5.202 Exceptions.
5.203 Publicizing and response time.
5.204 Presolicitation notices.
5.205 Special situations.
5.206 Notice of subcontracting opportunities.
5.207 Preparation and transmittal of synopses.
Subpart 5.3--Synopses of Contract Awards
5.301 General.
5.302 Preparation and transmittal of synopses of awards.
5.303 Announcement of contract awards.
Subpart 5.4--Release of Information
5.401 General.
5.402 General public.
5.403 Requests from Members of Congress.
5.404 Release of long-range acquisition estimates.
5.404-1 Release procedures.
5.404-2 Announcements of long-range acquisition estimates.
5.405 Exchange of acquisition information.
Subpart 5.5--Paid Advertisements
5.501 Definitions.
5.502 Authority.
5.503 Procedures.
5.504 Use of advertising agencies.
Authority: 40 U.S.C. 486(c); 10 U.S.C. Chapter 137; and 42 U.S.C.
2473(c).
Source: 48 FR 42119, Sept. 19, 1983, unless otherwise noted.
Sec. 5.000 Scope of part.
This part prescribes policies and procedures for publicizing
contract opportunities and award information.
Sec. 5.001 Definition.
Contract action, as used in this part, means an action resulting in
a contract, as defined in subpart 2.1, including contract modifications
for additional supplies or services, but not including contract
modifications that are within the scope and under the terms of the
contract, such as contract modifications issued pursuant to the Change
clause, or funding and other administrative changes.
[50 FR 1728, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985]
Sec. 5.002 Policy.
Contracting officers shall publicize contract actions in order to--
(a) Increase competition;
(b) Broaden industry participation in meeting Government
requirements; and
(c) Assist small business concerns, small disadvantaged business
concerns, and women-owned small business concerns in obtaining contracts
and subcontracts.
[50 FR 52429, Dec. 23, 1985, as amended at 60 FR 48259, Sept. 18, 1995]
Subpart 5.1--Dissemination of Information
Sec. 5.101 Methods of disseminating information.
The Commerce Business Daily (CBD) is the public notification media
by which U.S. Government agencies identify proposed contract actions and
contract awards. The CBD is published in five or six daily editions
weekly, as necessary.
(a) As required by the Small Business Act (15 U.S.C. 637(e)) and the
Office of Federal Procurement Policy Act (41 U.S.C. 416), contracting
officers shall disseminate information on proposed contract actions as
follows:
(1) For proposed contract actions expected to exceed $25,000, by
synopsizing in the Commerce Business Daily (CBD) (see 5.201); and
[[Page 69]]
(2) For proposed contract actions expected to exceed $10,000, but
not expected to exceed $25,000, by displaying in a public place,
including on an electronic bulletin board, or any other appropriate
electronic means located at the contracting office issuing the
solicitation, an unclassified notice of the solicitation or a copy of
the solicitation satisfying the requirements of 5.207 (c) and (f). The
notice shall include a statement that all responsible sources may submit
a quotation which, if timely received, shall be considered by the
agency. Such information shall be posted not later than the date the
solicitation is issued, and shall remain posted for at least 10 days or
until after quotations have been opened, whichever is later.
(i) If solicitations are posted in lieu of a notice, various methods
of satisfying the requirements of 5.207 (c) and (f) may be employed. For
example, the requirements for 5.207 (c) and (f) may be met by stamping
the solicitation, by a cover sheet to the solicitation, or by placing a
general statement in the display room.
(ii) The contracting officer need not comply with the display
requirements of this section when the exemptions at 5.202(a)(1), (a)(4)
through (a)(9), or (a)(11) apply, when oral or FACNET solicitations are
used, or when providing access to a notice of proposed contract action
through the single, Governmentwide point of entry and the notice permits
the public to respond to the solicitation electronically.
(iii) Contracting officers shall post solicitations expected to
exceed $25,000 if required by agency regulations.
(iv) Electronic posting of requirements in a place accessible by the
general public at the Government installation may be used to satisfy the
public display requirement. Contracting offices using electronic systems
for public posting that are not accessible outside the installation
shall periodically publicize the methods for accessing such information.
(b) In addition, one or more of the following methods may be used:
(1) Preparing periodic handouts listing proposed contracts, and
displaying them as in 5.101(a)(2).
(2) Assisting local trade associations in disseminating information
to their members.
(3) Making brief announcements of proposed contracts to newspapers,
trade journals, magazines, or other mass communication media for
publication without cost to the Government.
(4) Placing paid advertisements in newspapers or other
communications media, subject to the following limitations:
(i) Contracting officers shall place paid advertisements of proposed
contracts only when it is anticipated that effective competition cannot
be obtained otherwise (see 5.205(d)).
(ii) Contracting officers shall not place advertisements of proposed
contracts in a newspaper published and printed in the District of
Columbia unless the supplies or services will be furnished, or the labor
performed, in the District of Columbia or adjoining counties in Maryland
or Virginia (44 U.S.C. 3701).
(iii) Advertisements published in newspapers must be under proper
written authority in accordance with 44 U.S.C. 3702 (see 5.502(a)).
[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1728, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 51 FR 27117, July 29, 1986; 52 FR 21885,
June 9, 1987; 56 FR 41731, Aug. 22, 1991; 60 FR 34736, 34746, July 3,
1995; 61 FR 39191, July 26, 1996; 62 FR 12692, Mar. 17, 1997; 63 FR
58592, Oct. 30, 1998]
Sec. 5.102 Availability of solicitations.
(a) The contracting officer shall--
(1) Maintain a reasonable number of copies of solicitations
publicized in the CBD, including specifications and other pertinent
information (upon request, potential sources not initially solicited
shall be mailed or provided copies of solicitations, if available);
(2) Provide copies of a solicitation issued under other than full
and open competition to firms requesting copies that were not initially
solicited, but only after advising the requester of the determination to
limit the solicitation to a specified firm or firms as authorized under
Part 6 of the FAR;
[[Page 70]]
(3) Provide copies on a first-come-first-served basis, for pickup at
the contracting office, to publishers, trade associations, information
services, and other members of the public having a legitimate interest
(for construction, see 36.211); and
(4) In addition to the methods of disseminating proposed contract
information in 5.101(a) and (b), provide upon request to small business
concerns, as required by 15 U.S.C. 637(b)--
(i) A copy of the solicitation specifications. In the case of
solicitations disseminated by electronic data interchange, solicitations
may be furnished directly to the electronic address of the small
business concern;
(ii) The name and telephone number of an employee of the contracting
office to answer questions on the solicitation; and
(iii) Adequate citations to each applicable major Federal law or
agency rule with which small business concerns must comply in performing
the contract.
(5) Retain a copy of the solicitation and other documents for review
by and duplication for those requesting copies after the initial number
of copies is exhausted.
(6) Agencies may require payment of a fee, not exceeding the actual
cost of duplication, for a copy of the solicitation documents.
(7) If electronic commerce is employed in the solicitation process,
availability of the solicitation may be limited to the electronic
medium.
(b) This section 5.102 applies to classified contracts to the extent
consistent with agency security requirements (see 5.202(a)(1)).
[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1728, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 60 FR 34737, July 3, 1995; 62 FR 51230,
Sept. 30, 1997; 63 FR 58592, Oct. 30, 1998]
Subpart 5.2--Synopses of Proposed Contract Actions
Sec. 5.201 General.
(a) As required by the Small Business Act (15 U.S.C. 637(e)) and the
Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies shall
furnish for publication in the Commerce Business Daily (CBD) notices of
proposed contract actions as specified in paragraph (b) of this section.
(b) For acquisitions of supplies and services other than those
covered by the exceptions in 5.202, and special situations in 5.205, the
contracting officer shall transmit a notice to the CBD (synopsis) (see
5.207) for each proposed--
(1) Contract actions meeting the thresholds in 5.101(a)(1);
(2) Effort to locate private commercial sources for cost comparison
purposes under OMB Circular A-76 (see 5.205(e));
(3) Modification to an existing contract for additional supplies or
services that meets the thresholds in 5.101(a)(1); or
(4) Contract action in any amount when advantageous to industry or
the Government.
(c) The primary purposes of the CBD notice are to improve small
business access to acquisition information and enhance competition by
identifying contracting and subcontracting opportunities.
(d) Subcriptions to the CBD must be placed with the Superintendent
of Documents, Government Printing Office, Washington, DC 20402
(Telephone 202-512-1800).
[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1728, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 51 FR 27117, July 29, 1986; 52 FR 21886,
June 9, 1987; 60 FR 42653, Aug. 16, 1995; 62 FR 40236, July 25, 1997; 63
FR 34079, June 22, 1998]
Sec. 5.202 Exceptions.
The contracting officer need not submit the notice required by 5.201
when--
(a) The contracting officer determines that--
(1) The synopsis cannot be worded to preclude disclosure of an
agency's needs and such disclosure would compromise the national
security (e.g., would result in disclosure of classified information).
The fact that a proposed solicitation or contract action contains
classified information, or that access to classified matter may be
necessary to submit a proposal or perform the contract does not, in
itself, justify use of this exception to synopsis;
(2) The proposed contract action is made under the conditions
described in 6.302-2 (or, for purchases conducted
[[Page 71]]
using simplified acquisition procedures, if unusual and compelling
urgency precludes competition to the maximum extent practicable) and the
Government would be seriously injured if the agency complies with the
time periods specified in 5.203;
(3) The proposed contract action is one for which either the written
direction of a foreign government reimbursing the agency for the cost of
the acquisition of the supplies or services for such government, or the
terms of an international agreement or treaty between the United States
and a foreign government or international organizations, has the effect
of requiring that the acquisition shall be from specified sources;
(4) The proposed contract action is expressly authorized or required
by a statute to be made through another Government agency, including
acquisitions from the Small Business Administration (SBA) using the
authority of section 8(a) of the Small Business Act (but see 5.205(f)),
or from a specific source such as a workshop for the blind under the
rules of the Committee for the Purchase from the Blind and Other
Severely Handicapped;
(5) The proposed contract action is for utility services other than
telecommunications services and only one source is available;
(6) The proposed contract action is an order placed under Subpart
16.5;
(7) The proposed contract action results from acceptance of a
proposal under the Small Business Innovation Development Act of 1982
(Pub. L. 97-219);
(8) The proposed contract action results from the acceptance of an
unsolicited research proposal that demonstrates a unique and innovative
concept (see 6.003) and publication of any notice complying with 5.207
would improperly disclose the originality of thought or innovativeness
of the proposed research, or would disclose proprietary information
associated with the proposal. This exception does not apply if the
proposed contract action results from an unsolicited research proposal
and acceptance is based solely upon the unique capability of the source
to perform the particular research services proposed (see 6.302-
1(a)(2)(i);
(9) The proposed contract action is made for perishable subsistence
supplies, and advance notice is not appropriate or reasonable;
(10) The proposed contract action is made under conditions described
in 6.302-3, or 6.302-5 with regard to brand name commercial items for
authorized resale, or 6.302-7, and advance notice is not appropriate or
reasonable;
(11) The proposed contract action is made under the terms of an
existing contract that was previously synopsized in sufficient detail to
comply with the requirements of 5.207 with respect to the current
proposed contract action;
(12) The proposed contract action is by a Defense agency and the
proposed contract action will be made and performed outside the United
States, its possessions, or Puerto Rico, and only local sources will be
solicited. This exception does not apply to proposed contract actions
subject to the Trade Agreements Act (see subpart 25.4). This exception
also does not apply to North American Free Trade Agreement proposed
contract actions, which will be synopsized in accordance with agency
regulations;
(13) The proposed contract action--
(i) Is for an amount not expected to exceed the simplified
acquisition threshold;
(ii) Will be made through FACNET or another means that provides
access to the notice of proposed contract action through the single,
Governmentwide point of entry; and
(iii) Permits the public to respond to the solicitation
electronically; or
(14) The proposed contract action is made under conditions described
in 6.302-3 with respect to the services of an expert to support the
Federal Government in any current or anticipated litigation or dispute.
(b) The head of the agency determines in writing after consultation
with the Administrator for Federal
[[Page 72]]
Procurement Policy and the Administrator of the Small Business
Administration, that advance notice is not appropriate or reasonable.
[50 FR 1728, Jan. 11, 1985, as amended at 50 FR 52430, Dec. 23, 1985; 51
FR 27117, July 29, 1986; 53 FR 27463, July 20, 1988; 54 FR 46004, Oct.
31, 1989; 56 FR 15148, Apr. 15, 1991; 56 FR 41744, Aug. 22, 1991; 59 FR
545, Jan. 5, 1994; 60 FR 34746, July 3, 1995; 60 FR 42653, Aug. 16,
1995; 60 FR 49725, Sept. 26, 1995; 61 FR 39192, July 26, 1996; 63 FR
58592, 58593, Oct. 30, 1998]
Sec. 5.203 Publicizing and response time.
Whenever agencies are required to publish notice of proposed
contract actions under 5.201, they shall proceed as follows:
(a) A notice of proposed contract action shall be published in the
Commerce Business Daily at least 15 days before issuance of a
solicitation except that, for acquisitions of commercial items, the
contracting officer may--
(1) Establish a shorter period for issuance of the solicitation; or
(2) Use the combined CBD synopsis/solicitation procedure (see
12.603).
(b) The contracting officer shall establish a solicitation response
time that will afford potential offerors a reasonable opportunity to
respond to--each proposed contract action (including actions via FACNET
or for which the notice of proposed contract action is accessible
through the single, Governmentwide point of entry), in an amount
estimated to be greater than $25,000, but not greater than the
simplified acquisition threshold; or each contract action for the
acquisition of commercial items in an amount estimated to be greater
than $25,000. The contracting officer should consider the circumstances
of the individual acquisition, such as the complexity, commerciality,
availability, and urgency, when establishing the solicitation response
time.
(c) Except for the acquisition of commercial items (see 5.203(b)),
agencies shall allow at least a 30-day response time for receipt of bids
or proposals from the date of issuance of a solicitation, if the
proposed contract action is expected to exceed the simplified
acquisition threshold.
(d) Agencies shall allow at least a 30 day response time from the
date of publication of a proper notice of intent to contract for
architect-engineer services or before issuance of an order under a basic
ordering agreement or similar arrangement if the proposed contract
action is expected to exceed the simplified acquisition threshold.
(e) Agencies shall allow at least a 45 day response time for receipt
of bids or proposals from the date of publication of the notice required
in 5.201 for proposed contract actions categorized as research and
development if the proposed contract action is expected to exceed the
simplified acquisition threshold.
(f) Nothing in this subpart prohibits officers or employees of
agencies from responding to requests for information.
(g) Contracting officers may, unless they have evidence to the
contrary, presume that notice has been published 10 days (6 days if
electronically transmitted) following transmittal of the synopsis to the
CBD. This presumption is based on the CBD's confirmation that
publication does occur within these timeframes. This presumption does
not negate the mandatory waiting or response times specified in
paragraphs (a) through (d) of this section. Upon learning that a
particular notice has not in fact been published within the presumed
timeframes, contracting officers should consider whether the date for
receipt of offers can be extended or whether circumstances have become
sufficiently compelling to justify proceeding with the proposed contract
action under the authority of 5.202(a)(2).
(h) In addition to other requirements set forth in this section, for
acquisitions subject to NAFTA or the Trade Agreements Act (see subpart
25.4), the period of time between publication of the synopsis notice and
receipt of offers shall be no less than 40 days. However, if the
acquisition falls within a general category identified in an annual
forecast, the availability of which
[[Page 73]]
is published in the CBD, the contracting officer may reduce this time
period to as few as 10 days.
[50 FR 52430, Dec. 23, 1985, as amended at 51 FR 31425, Sept. 3, 1986;
60 FR 34747, July 3, 1995; 60 FR 48236, Sept. 18, 1995; 61 FR 39192,
July 26, 1996; 62 FR 263, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997; 63
FR 58592, 58593, Oct. 30, 1998]
Sec. 5.204 Presolicitation notices.
Contracting officers shall publicize presolicitation notices in the
CBD (see 15.201 and 36.213-2). Synopsizing of a proposed contract action
is required prior to issuance of any resulting solicitation (see 5.201
and 5.203).
[50 FR 1729, Jan. 11, 1985 and 50 FR 52429, Dec. 23, 1985; 62 FR 271,
Jan. 2, 1997; 62 FR 51270, Sept. 30, 1997; 65 FR 36031, June 6, 2000]
Sec. 5.205 Special situations.
(a) Research and development (R&D) advance notice. Contracting
officers may publish in the CBD, advance notices of their interest in
potential R&D programs whenever existing solicitation mailing lists do
not include a sufficient number of concerns to obtain adequate
competition. Advance notices shall not be used where security
considerations prohibit such publication. Advance notices will enable
potential sources to learn of R&D programs and provide their sources
with an opportunity to submit information which will permit evaluation
of their R&D capabilities. Potential sources which respond to advance
notices shall be added to the appropriate solicitation mailing list for
subsequent solicitation. Advance notices shall be titled ``Research and
Development Sources Sought,'' cite the appropriate Numbered Note, and
include the name and telephone number of the contracting officer or
other contracting activity official from whom technical details of the
project can be obtained. This will enable sources to submit information
for evaluation of their R&D capabilities. Contracting officers shall
synopsize all subsequent solicitations for R&D contracts, including
those resulting from a previously synopsized advance notice, unless one
of the exceptions in 5.202 applies.
(b) Federally Funded Research and Development Centers. Before
establishing a Federally Funded Research and Development Center (FFRDC)
(see part 35) or before changing its basic purpose and mission, the
sponsor shall place at least three notices over a 90-day period in the
Commerce Business Daily and the Federal Register, indicating the
agency's intention to sponsor an FFRDC or change the basic purpose and
mission of an FFRDC. The notice shall indicate the scope and nature of
the effort to be performed and request comments. Notice is not required
where action is required by law.
(c) Special notices. Contracting officers may publish in the CBD
special notices of procurement matters such as business fairs, long-
range procurement estimates, pre-bid/pre-proposal conferences, meetings,
and the availability of draft solicitations or draft specifications for
review. Special notices shall be transmitted to the CBD in accordance
with 5.207.
(d) Architect-engineering services. Contracting officers shall
publish notices of intent to contract for architect-engineering services
as follows:
(1) Except when exempted by 5.202, contracting officers shall
synopsize each proposed contract action for which the total fee
(including phases and options) is expected to exceed $25,000. Reference
shall be made to the appropriate CBD Numbered Note.
(2) When the total fee is expected to exceed $10,000 but not exceed
$25,000, the contracting officer shall comply with 5.101(a)(2). When the
proposed contract action is not required to be synopsized under
subparagraph (d)(1) of this section, the contracting officer shall
display a notice of the solicitation or a copy of the solicitation in a
public place at the contracting office. Other optional publicizing
methods are authorized in accordance with 5.101(b).
(e) Effort to locate commercial sources under OMB Circular A-76.
When determining the availability of commercial sources under the
procedures prescribed in subpart 7.3 and OMB Circular A-76, the
contracting officer shall not arrive at a conclusion that there are no
commercial sources capable of providing the required supplies or
services until publicizing the requirement in the CBD at least three
times in a 90 calendar-day period, with a minimum
[[Page 74]]
of 30 calendar days between each. When necessary to meet an urgent
requirement, this may be limited to a total of two publications in the
CBD in a 30 calendar-day period, with a minimum of 15 calendar days
between each.
(f) Section 8(a) competitive acquisition. When a national buy
requirement is being considered for competitive acquisition limited to
eligible 8(a) concerns under Subpart 19.8, the contracting officer shall
transmit a synopsis of the proposed contract action to the CBD in
accordance with 5.207. The synopsis may be transmitted to the CDB
concurrent with submission of the agency offering (see 19.804-2) to the
Small Business Administration (SBA). The synopsis should also include
information--
(1) Advising that the acquisition is being offered for competition
limited to eligible 8(a) concerns;
(2) Specifying the North American Industry Classification System
(NAICS) code;
(3) Advising that eligibility to participate may be restricted to
firms in either the developmental stage or the developmental and
transitional stages; and
(4) Encouraging interested 8(a) firms to request a copy of the
solicitation as expeditiously as possible since the solicitation will be
issued without further notice upon SBA acceptance of the requirement for
the section 8(a) Program.
[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1729, Jan. 11, 1985;
50 FR 4221, Jan. 30, 1985; 50 FR 52430, Dec. 23, 1985; 51 FR 27117, July
29, 1986; 52 FR 21886, June 9, 1987; 53 FR 43389, Oct. 26, 1988; 54 FR
25061, June 12, 1989; 54 FR 46004, Oct. 31, 1989; 55 FR 3881, Feb. 5,
1990; 55 FR 25526, June 21, 1990; 55 FR 52789, Dec. 21, 1990; 56 FR
41731, Aug. 22, 1991; 60 FR 34747, July 3, 1995; 61 FR 39192, July 26,
1996; 63 FR 58593, Oct. 30, 1998; 64 FR 72451, Dec. 27, 1999; 65 FR
46056, July 26, 2000]
Sec. 5.206 Notices of subcontracting opportunities.
(a) The following entities may use a CBD notice to seek competition
for subcontracts, to increase participation by qualified HUBZone small
business, small, small disadvantaged, and small women-owned business
concerns, and to meet established subcontracting plan goals:
(1) A contractor awarded a contract exceeding $100,000 that is
likely to result in the award of any subcontracts.
(2) A subcontractor or supplier, at any tier, under a contract
exceeding $100,000, that has a subcontracting opportunity exceeding
$10,000.
(b) The notices must describe--
(1) The business opportunity, following the standard CDB format for
items 7, 10, 11, and 17 in 5.207(b)(4);
(2) Any prequalification requirements; and
(3) Where to obtain technical data needed to respond to the
requirement.
[64 FR 72442, Dec. 27, 1999, as amended at 65 FR 46054, July 26, 2000]
Sec. 5.207 Preparation and transmittal of synopses.
(a) Transmittal. Contracting officers shall transmit synopses of
actions identified under 5.101 to the Commerce Business Daily by the
most expeditious and reliable means available.
(1) Electronic transmission. All synopses transmitted by electronic
means shall be in ASCII Code. Contact your agency's communications
center for the appropriate transmission instructions or services.
(2) Hard copy transmission. When electronic transmission is not
feasible, synopses should be sent to the CBD via mail or other physical
delivery of hard copy and should be addressed to: Commerce Business
Daily, U.S. Government Printing Office, P.O. Box 77880, Washington, DC
20013-8880.
(b) Format. The contracting officer shall prepare the synopsis in
the following style and format to ensure timely processing of the
synopsis by the Commerce Business Daily.
(1) General. Format for all synopses shall employ conventional
typing with abbreviations, capitalization, and punctuation all
grammatically correct. Each synopsis shall include all 17 format items.
Do not include the title for the format item.
(2) Spacing. Begin each line flush left and use double spaced lines
between each format line. If more than one synopsis is sent at one time,
separate each synopsis with four line spaces and begin each new synopsis
with format item number 1.
[[Page 75]]
(3) Abbreviations. Minimize abbreviations or acronyms to commonly
recognized abbreviations.
(4) Standard format. Prepare each synopsis in the following format.
Begin each format item with the number of the item followed by a period
(e.g., 1.). Then make two spaces after the period. Next type the
appropriate information for each format item. Then conclude each format
item with two exclamation points (i.e., !!). Conclude each complete
synopsis, following format item 17, with five asterisks (i.e., * * * *
*).
Format Item and Explanation/Description of Entry
1. ACTION CODE
(A single alphabetic character denoting the specific action related
in the synopsis. Choices are limited to the following: P=Presolicitation
Notice/Procurement; A=Award announcement; M=Modification of a previously
announced procurement action (a correction to a previous CBD
announcement); R=Sources Sought (includes A-76 services and architect-
engineer contracts). If none of the standard codes apply, enter ``N/
A''.)
2. DATE
(Date on which the synopsis is transmitted to the CBD for
publication. Use a four digit number indicating month in two digits and
date in two digits (MMDD). All four spaces must be used with preceding 0
for months January thru September. Format: 0225 for February 25.)
3. YEAR
(Two numeric digits denoting the calendar year of the synopsis.
Format 85 for 1985.)
4. GOVERNMENT PRINTING OFFICE (GPO) BILLING ACCOUNT CODE.
(The originating office's account number used by the GPO for billing
and collection purposes. The field length is nine alpha-numeric
characters. The first three characters entered are ``GPO'' and then the
following six characters are the numeric account number. Agencies should
contact the GPO's Office of Comptroller for additional information.
Enter N/A if an account number has not been assigned.)
5. CONTRACTING OFFICE ZIP CODE
(The geographic zip code for the contracting office. Up to nine
characters may be entered. When using a nine digit zip code, separate
the first five digits and last four digits with a dash. Format: 00000-
0000.)
6. CLASSIFICATION CODE. (Service or supply code number; see
5.207(g). Each synopsis shall classify the contemplated contract action
under the one classification code which most closely describes the
acquisition. If the action is for a multiplicity of goods and/or
services, the preparer should select the one category best describing
the overall acquisition based upon value. Inclusion of more than one
classification code, or failure to include a classification code, will
result in rejection of the synopsis by the Commerce Business Daily).
7. CONTRACTING OFFICE ADDRESS
(The complete name and address of the contracting office. Field
length is open, but generally not expected to exceed 90 alpha-numeric
characters.)
8. SUBJECT
(Insert classification code for ITEM 6, and a brief title
description of services, supplies, or project required by the agency.
This will appear in the CBD as the bold faced title in the first line of
the description.) (200 character spaces available.)
9. PROPOSED SOLICITATION NUMBER
(Agency number for control, tracking, identification. For
solicitations; if not a solicitation, enter N/A.)
10. OPENING/CLOSING RESPONSE DATE
(For solicitations; if not a solicitation, enter N/A. Issuing agency
deadline for receipt of bids, proposals or responses. Use a six digit
date. Format: MMDDYY. Explanation may appear in text of synopsis in Item
17.)
11. CONTACT POINT/CONTRACTING OFFICER
(Include name and telephone number of contact. Also include name and
telephone number of contracting officer if different. This will appear
as the first item of information in the published entry. This entry may
be alpha-numeric and up to 320 character blocks in length.)
12. CONTRACT AWARD AND SOLICITATION NUMBER
(For awards; if not an award, enter N/A. The award, solicitation or
project reference number assigned by the agency to provide a reference
for bidders/subcontractors. Two hundred character spaces available for
alpha-numeric entries.)
13. CONTRACT AWARD DOLLAR AMOUNT
(For awards; if not an award, enter N/A. A ten digit numeric field.
Enter whole dollars only. Output will be preceded by a dollar sign ($).)
14. CONTRACT LINE ITEM NUMBER
(For awards--as desired; if not an award, enter N/A. The alpha-
numeric field with dashes and slashes may not exceed 32 spaces. If
sufficient space is not available, enter N/A and insert the contract
line item number(s) in format item 17.)
15. CONTRACT AWARD DATE
(For awards; if not an award, enter N/A. A six digit entry showing
the date the award is made or the contract let. Format: MMDDYY.)
[[Page 76]]
16. CONTRACTOR
(For awards; if not an award, enter N/A. Name and address of
successful offeror. Four hundred character spaces allowed for full
identification.)
17. DESCRIPTION
(Enter a clear and concise description of the action. The
description may not exceed 12,000 textual characters (approximately 3\1/
2\ single spaced pages). The suggested sequence of the content and items
for inclusion in the description are contained in 5.207(c). Insert N/A
when synopsizing awards.)
(5) Nonapplicable format items. When a format item is not
applicable, type the item number, a period, two blank spaces, and ``N/
A'' (e.g., 10. N/A!!).
(6) The following is a sample CBD synopsis:
1. P!!
2. 0925!!
3. 85!!
4. GPO123456!!
5. 19111-5096!!
6. 95!!
7. Defense Industrial Supply Center, 700 Robbins Ave., Philadelphia,
PA 19111-5096!!
8. 95--Steel Plate!!
9. DLA500-86-B-0090!!
10. BOD, 111585!!
11. Contact, Mary Drake, 215/697-XXXX/Contracting Officer, Larry
Bird, 215/697-XXXX!!
12. N/A!!
13. N/A!!
14. N/A!!
15. N/A!!
16. N/A!!
17. NSN9515-00-237-5342, Spec Mil-S-226988, 0.1875 inch thick, 96
inch width. 240 inch length. Carbon steel, 45,000 lbs. Delivery to NSY
Philadelphia, PA, and NSC Norfolk, VA. Delivery by 1 Oct. 86. When
calling, be prepared to state name, address, and solicitation number.
See note 9. All responsible sources may submit an offer which will be
considered. * * * * *
(c) General format for Item 17, ``Description.'' (1) Prepare a clear
and concise description of the supplies or services that is not
unnecessarily restrictive of competition and will allow a prospective
offeror to make an informed business judgment as to whether a copy of
the solicitation should be requested.
(2) Do not include in Item 17 the CBD supply or service
classification code from Item 6.
(i) National Stock Number (NSN) if assigned.
(ii) Specification and whether an offeror, its product, or service
must meet a qualification requirement in order to be eligible for award,
and identification of the office from which additional information about
the qualification requirement may be obtained (see subpart 9.2).
(iii) Manufacturer, including part number, drawing number, etc.
(iv) Size, dimensions, or other form, fit or functional description.
(v) Predominant material of manufacture.
(vi) Quantity, including any options for additional quantities.
(vii) Unit of issue.
(viii) Destination information.
(ix) Delivery schedule.
(x) Duration of the contract period.
(xi) For a proposed contract action in an amount estimated to be
greater than $25,000 but not greater than the simplified acquisition
threshold, enter (A) a description of the procedures to be used in
awarding the contract (e.g., request for oral or written quotation or
solicitation), and (B) the anticipated award date.
(xii) For Architect-Engineer projects and other projects for which
the supply or service codes are insufficient, provide brief details with
respect to: location, scope of services required, cost range and
limitations, type of contract, estimated starting and completion dates,
and any significant evaluation factors.
(xiii) Numbered notes (see 5.207(e)), including instructions for
set-asides for small businesses.
(xiv) In the case of noncompetitive contract actions (including
those that do not exceed the simplified acquisition threshold), identify
the intended source (see 5.207(e)(3)) and insert a statement of the
reason justifying the lack of competition.
(xv) Insert a statement that all responsible sources may submit a
bid, proposal, or quotation which shall be considered by the agency.
(xvi) If the contracting office will accept requests for
solicitations through alternate means (e.g., facsimile machine, Telex),
provide the machine number and routing instructions.
(xvii) If the solicitation will be made available to interested
parties through
[[Page 77]]
electronic data interchange, provide any information necessary to obtain
and respond to the solicitation electronically.
(xviii) In the case of a very small business set-aside, identify the
Designated Region (see subpart 19.9).
(d) Set-asides. When the proposed acquisition provides for a total,
partial, or very small business set-aside, or a HUBZone small business
set-aside, the appropriate CBD Numbered Note will be cited.
(e) CBD Numbered Notes. (1) Numbered Notes are footnotes. The
purpose of the Numbered Notes is to conserve space and simplify the
identification of repetitive notices. An explanation of the Numbered
Notes appears each week in the Monday edition of the CBD. If the Monday
edition of the CBD is not printed because of a holiday, an explanation
of the Numbered Notes will appear in the next day's issue. When one or
more of the Notes applies to a synopsis, contracting officers should
reference the note at the end of Item 17 of the synopsis; e.g., ``See
Note(s). . . .'' Requests to add or change Notes will be submitted
through channels for approval by the DAR Council and the CAA Council.
The Councils will review the Numbered Notes periodically and, as
appropriate, after consultation with the initiating agency, advise the
Department of Commerce to delete or modify outdated or unused notes from
the CBD. Contracting officers shall also include the substance of
Numbered Notes whenever a proposed contract is publicized by means other
than the CBD (see 5.101).
(2) If the acquisition is subject to the requirements of the Trade
Agreements Act of 1979 (see part 25), Numbered Note 12 shall be
referenced in the synopsis.
(3) Except for proposed contract actions equal to or less than the
simplified acquisition threshold or acquisitions of commercial items,
the synopsis shall refer to Numbered Note 22 for noncompetitive proposed
contract actions. If it is anticipated that award will be made via a
delivery order to an existing basic ordering agreement, the synopsis
shall so state.
(4) If, under the proposed acquisition, the Government does not
intend to acquire a commercial item using part 12, the synopsis shall
refer to Numbered Note 26.
(f) Information not covered by Numbered Notes. To alert prospective
contractors to information not covered by Numbered Notes, contracting
officers should identify the following unusual circumstances in the
synopsis:
(1) Availability of specification, plans, drawing, or other
technical data. It is impracticable to distribute the applicable ------
------ [insert `specifications,' `plans,' `drawings,' or other
appropriate words] with the solicitation. These contract documents may
be examined or obtained at ------------
(2) Availability of background research report. This contract for
basic research is a continuation of an effort conducted for the past --
------ [insert period]. A research report containing findings to date is
not available to the Government.
(3) Production requirements. The production of the supplies listed
requires a substantial initial investment or an extended period of
preparation for manufacture.
(4) Place of performance unknown. This contract is subject to the
Service Contract Act and the place of performance is unknown. Wage
determinations have been requested for (insert localities). The
contracting officer will request wage determinations for additional
localities if asked to do so in writing by (insert time and date).
(g) Codes to be Used in Synopses to Identify Services or Supplies.
(1) Contracting officers shall use one of the following classification
codes when the contemplated contract action is for services or when the
overall acquisition can best be described as services based upon value:
------------------------------------------------------------------------
Code Description
------------------------------------------------------------------------
A Research and development.
B Special studies and analysis--not R&D.
C Architect and engineering services.
D Information technology services,
including telecommunications services.
E Purchase of structures and facilities.
F Natural resources and conservation
services.
G Social services.
H Quality control, testing, and
inspection services.
J Maintenance, repair, and rebuilding of
equipment.
K Modification of equipment.
L Technical representative services.
M Operation of Government-owned
facilities.
N Installation of equipment.
[[Page 78]]
P Salvage services.
Q Medical services.
R Professional, administrative, and
management support services.
S Utilities and housekeeping services.
T Photographic, mapping, printing, and
publication services.
U Education and training services.
V Transportation, travel, and relocation
services.
W Lease or rental of equipment.
X Lease or rental of facilities.
Y Construction of structures and
facilities.
Z Maintenance, repair, and alteration of
real property.
------------------------------------------------------------------------
(2) Contracting officers shall use one of the following
classification codes when the contemplated contract action is for
supplies or when the overall acquisition can best be described as
supplies based upon value:
Code Description
10 Weapons.
11 Nuclear ordnance.
12 Fire control equipment.
13 Ammunition and explosives.
14 Guided missiles.
15 Aircraft and airframe structural
components.
16 Aircraft components and accessories.
17 Aircraft launching, landing, and ground
handling equipment.
18 Space vehicles.
19 Ships, small craft, pontoons, and
floating docks.
20 Ship and marine equipment.
22 Railway equipment.
23 Ground effect vehicles, motor vehicles,
trailers, and cycles.
24 Tractors.
25 Vehicular equipment components.
26 Tires and tubes.
28 Engines, turbines, and components.
29 Engine accessories.
30 Mechanical power transmission equipment.
31 Bearings.
32 Woodworking machinery and equipment.
34 Metalworking machinery.
35 Service and trade equipment.
36 Special industry machinery.
37 Agricultural machinery and equipment.
38 Construction, mining, excavating, and
highway maintenance equipment.
39 Materials handling equipment.
40 Rope, cable, chain, and fittings.
41 Refrigeration, air-conditioning, and air
circulating equipment.
42 Fire fighting, rescue, and safety
equipment.
43 Pumps and compressors.
44 Furnace, steam plant, and drying
equipment; and nuclear reactors.
45 Plumbing, heating, and sanitation
equipment.
46 Water purification and sewage treatment
equipment.
47 Pipe, tubing, hose, and fittings.
48 Valves.
49 Maintenance and repair shop equipment.
51 Hand tools.
52 Measuring tools.
53 Hardware and abrasives.
54 Prefabricated structures and
scaffolding.
55 Lumber, millwork, plywood, and veneer.
56 Construction and building materials.
58 Communication, detection, and coherent
radiation equipment.
59 Electrical and electronic equipment
components.
60 Fiber optics materials, components,
assemblies, and accessories.
61 Electric wire, and power and
distribution equipment.
62 Lighting fixtures and lamps.
63 Alarm, signal, and security detection
systems.
65 Medical, dental, and veterinary
equipment and supplies.
66 Instruments and laboratory equipment.
67 Photographic equipment.
68 Chemicals and chemical products.
69 Training aids and devices.
70 General-purpose information technology
equipment.
71 Furniture.
72 Household and commercial furnishings and
appliances.
73 Food preparation and serving equipment.
74 Office machines, text processing
systems, and visible record equipment.
75 Office supplies and devices.
76 Books, maps, and other publications.
77 Musical instruments, phonographs, and
home-type radios.
78 Recreational and athletic equipment.
79 Cleaning equipment and supplies.
80 Brushes, paints, sealers, and adhesives.
81 Containers, packaging, and packing
supplies.
83 Textiles, leather, furs, apparel and
shoe findings, tents, and flags.
84 Clothing, individual equipment, and
insignia.
85 Toiletries.
87 Agricultural supplies.
88 Live animals.
89 Subsistence.
91 Fuels, lubricants, oils, and waxes.
93 Nonmetallic fabricated materials.
94 Nonmetallic crude materials.
95 Metal bars, sheets, and shapes.
96 Ores, minerals, and their primary
products.
99 Miscellaneous.
(3) Only one classification code shall be reported. If more than one
code is applicable, the contracting officer shall use the code which
describes the predominant product or service being procured. The FPDS
Product and Service Codes Manual, October 1988, may be used to identify
a specific product or service within each code.
(h) Cancellation of synopsis. Contracting officers should not
publish notices of solicitation cancellations (or indefinite
suspensions) of proposed contract actions in the CBD. Cancellations of
solicitations shall be made in accordance with 14.209 and 14.404-1.
[48 FR 42119, Sept. 19, 1983]
Editorial Note: For Federal Register citations affecting section
5.207, see the List of Sections Affected in the Finding Aids section of
this volume.
[[Page 79]]
Subpart 5.3--Synopses of Contract Awards
Sec. 5.301 General.
(a) Except for contract actions described in paragraph (b) of this
section, contracting officers must synopsize in the Commerce Business
Daily (CBD) awards exceeding $25,000 that are--
(1) Subject to the Trade Agreements Act (see Subpart 25.4); or
(2) Likely to result in the award of any subcontracts. However, the
dollar threshold is not a prohibition against publicizing an award of a
smaller amount when publicizing would be advantageous to industry or to
the Government.
(b) A notice is not required under paragraph (a) of this section
if--
(1) The notice would disclose the executive agency's needs and the
disclosure of such needs would compromise the national security;
(2) The award results from acceptance of an unsolicited research
proposal that demonstrates a unique and innovative research concept and
publication of any notice would disclose the originality of thought or
innovativeness of the proposed research or would disclose proprietary
information associated with the proposal;
(3) The award results from a proposal submitted under the Small
Business Innovation Development Act of 1982 (Pub. L. 97-219);
(4) The contract action is an order placed under Subpart 16.5;
(5) The award is made for perishable subsistence supplies;
(6) The award is for utility services, other than telecommunications
services, and only one source is available;
(7) The contract action--
(i) Is for an amount not greater than the simplified acquisition
threshold;
(ii) Was conducted by using FACNET, or access to the notice of
proposed contract action was provided through the single, Governmentwide
point of entry; and
(iii) Permitted the public to respond to the solicitation
electronically; or
(8) The award is for the services of an expert to support the
Federal Government in any current or anticipated litigation or dispute
pursuant to the exception to full and open competition authorized at
6.302-3.
(c) With respect to acquisitions subject to the Trade Agreements
Act, contracting officers must submit synopses in sufficient time to
permit their publication in the CBD not later than 60 days after award.
[52 FR 19802, May 27, 1987, as amended at 53 FR 27463, July 20, 1988; 60
FR 34747, July 3, 1995; 60 FR 42653, Aug. 16, 1995; 60 FR 49725, Sept.
26, 1995; 63 FR 58593, Oct. 30, 1998; 64 FR 72418, Dec. 27, 1999]
Sec. 5.302 Preparation and transmittal of synopses of awards.
Contracting officers shall transmit synopses of contract awards in
the same manner as prescribed in 5.207.
[55 FR 52790, Dec. 21, 1990]
Sec. 5.303 Announcement of contract awards.
(a) Public announcement. Contracting officers shall make information
available on awards over $3 million (unless another dollar amount is
specified in agency acquisition regulations) in sufficient time for the
agency concerned to announce it by 5:00 p.m. Washington, DC time on the
day of award. Contracts excluded from this reporting requirement include
(1) those placed with the Small Business Administration under Section
8(a) of the Small Business Act, (2) those placed with foreign firms when
the place of delivery or performance is outside the United States or its
possessions, and (3) those for which synopsis was exempted under
5.202(a)(1). Agencies shall not release information on awards before the
public release time of 5:00 p.m. Washington, DC time.
(b) Local announcement. Agencies may also release information on
contract awards to the local press or other media. When local
announcements are made for contract awards in excess of the simplified
acquisition threshold, they shall include--
(1) For awards after sealed bidding, a statement that the contract
was awarded after competition by sealed bidding, the number of offers
solicited and received, and the basis for selection (e.g., the lowest
responsible bidder); or
[[Page 80]]
(2) For awards after negotiation, the information prescribed by
15.503(b), and after competitive negotiation (either price or design
competition), a statement to this effect, and in general terms the basis
for selection.
[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1729, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985; 52 FR 30076, Aug. 12, 1987; 55 FR 3881, Feb.
5, 1990; 56 FR 67128, Dec. 27, 1991; 59 FR 67017, Dec. 28, 1994; 60 FR
34747, July 3, 1995; 60 FR 42653, Aug. 16, 1995; 61 FR 39190, July 26,
1996; 61 FR 69289, Dec. 31, 1996; 62 FR 51270, Sept. 30, 1997]
Subpart 5.4--Release of Information
Sec. 5.401 General.
(a) A high level of business security must be maintained in order to
preserve the integrity of the acquisition process. When it is necessary
to obtain information from potential contractors and others outside the
Government for use in preparing Government estimates, contracting
officers shall ensure that the information is not publicized or
discussed with potential contractors.
(b) Contracting officers may make available maximum information to
the public, except information--
(1) On plans that would provide undue or discriminatory advantage to
private or personal interests;
(2) Received in confidence from an offeror;
(3) Otherwise requiring protection under Freedom of Information Act
(see subpart 24.2) or Privacy Act (see subpart 24.1); or
(4) Pertaining to internal agency communications (e.g., technical
reviews, contracting authority or other reasons, or recommendations
referring thereto).
(c) This policy applies to all Government personnel who participate
directly or indirectly in any stage of the acquisition cycle.
Sec. 5.402 General public.
Contracting officers shall process requests for specific information
from the general public, including suppliers, in accordance with subpart
24.1 or 24.2, as appropriate.
Sec. 5.403 Requests from Members of Congress.
(a) Individual requests. Contracting officers shall give Members of
Congress, upon their request, detailed information regarding any
particular contract. When responsiveness would result in disclosure of
classified matter, business confidential information, or information
prejudicial to competitive acquisition, the contracting officer shall
refer the proposed reply, with full documentation, to the agency head
and inform the legislative liaison office of the action.
(b) Inclusion on solicitation mailing lists. Upon request of a
Congressional Committee or Subcommittee Chairperson, contracting
officers shall place any member of a Committee or Subcommittee on the
applicable solicitation mailing lists to receive automatic distribution
of solicitations in the specific area of interest.
[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1729, Jan. 11, 1985;
50 FR 52429, Dec. 23, 1985]
Sec. 5.404 Release of long-range acquisition estimates.
To assist industry planning and to locate additional sources of
supply, it may be desirable to publicize estimates of unclassified long-
range acquisition requirements. Estimates may be publicized as far in
advance as possible.
Sec. 5.404-1 Release procedures.
(a) Application. The agency head, or a designee, may release long-
range acquisition estimates if the information will--
(1) Assist industry in its planning and facilitate meeting the
acquisition requirements;
(2) Not encourage undesirable practices (e.g., attempts to corner
the market or hoard industrial materials); and
(3) Not indicate the existing or potential mobilization of the
industry as a whole.
(b) Conditions. The agency head shall ensure that--
(1) Classified information is released through existing security
channels in accordance with agency security regulations;
[[Page 81]]
(2) The information is publicized as widely as practicable to all
parties simultaneously by any of the means described in this part;
(3) Each release states that (i) the estimate is based on the best
information available, (ii) the information is subject to modification
and is in no way binding on the Government, and (iii) more specific
information relating to any individual item or class of items will not
be furnished until the proposed acquisition is synopsized in the CBD, or
the solicitation is issued;
(4) Each release contains the name and address of the contracting
officer that will process the acquisition;
(5) Modifications to the original release are publicized as soon as
possible, in the same manner as the original; and
(6) Each release--
(i) Is coordinated in advance with small business, public
information, and public relations personnel, as appropriate;
(ii) Contains, if applicable, a statement that small business set-
asides may be involved, but that a determination can be made only when
acquisition action is initiated; and
(iii) Contains the name or description of the item, and the
estimated quantity to be acquired by calendar quarter, fiscal year, or
other period. It may also contain such additional information as the
number of units last acquired, the unit price, and the name of the last
supplier.
[48 FR 42119, Sept. 19, 1983, as amended at 60 FR 48259, Sept. 18, 1995]
Sec. 5.404-2 Announcements of long-range acquisition estimates.
Further publication, consistent with the needs of the individual
case, may be accomplished by announcing in the CBD that long-range
acquisition estimates have been published and are obtainable, upon
request, from the contracting officer.
Sec. 5.405 Exchange of acquisition information.
(a) When the same item or class of items is being acquired by more
than one agency, or by more than one contracting activity within an
agency, the exchange and coordination of pertinent information,
particularly cost and pricing data, between these agencies or
contracting activities is necessary to promote uniformity of treatment
of major issues and the resolution of particularly difficult or
controversial issues. The exchange and coordination of information is
particularly beneficial during the period of acquisition planning,
presolicitation, evaluation, and pre-award survey.
(b) When substantial acquisitions of major items are involved or
when the contracting activity deems it desirable, the contracting
activity shall request appropriate information (on both the end item and
on major subcontracted components) from other agencies or contracting
activities responsible for acquiring similar items. Each agency or
contracting activity receiving such a request shall furnish the
information requested. The contracting officer, early in a negotiation
of a contract, or in connection with the review of a subcontract, shall
request the contractor to furnish information as to the contractor's or
subcontractor's previous Government contracts and subcontracts for the
same or similar end items and major subcontractor components.