[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 48

Federal Acquisition Regulations System


________________________

Chapters 3 to 6

                         Revised as of October 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



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

  Title 48:
          Chapter 3--Health and Human Services                       3
          Chapter 4--Department of Agriculture                      75
          Chapter 5--General Services Administration               147
          Chapter 6--Department of State                           283
  Finding Aids:
      Table of CFR Titles and Chapters........................     383
      Alphabetical List of Agencies Appearing in the CFR......     403
      List of CFR Sections Affected...........................     413

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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 48 CFR 301.101 
                       refers to title 48, part 
                       301, section 101.

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

[[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 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
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 
material published in the Federal Register.
    (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.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed 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, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected]

SALES

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.ofr.gov. For more 
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Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected]
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    October 1, 2017.

                                
                                      
                            

  

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                               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, 2017.

    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).

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM




                  (This book contains chapters 3 to 6)

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

chapter 3--Health and Human Services........................         301

chapter 4--Department of Agriculture........................         401

chapter 5--General Services Administration..................         501

chapter 6--Department of State..............................         601

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                  CHAPTER 3--HEALTH AND HUMAN SERVICES




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
300

[Reserved]

301             HHS Acquisition Regulation System...........           5
302             Definitions of words and terms..............           6
303             Improper business practices and personal 
                    conflicts of interest...................           7
304             Administrative matters......................           8
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305             Publicizing contract actions................          11
306             Competition requirements....................          11
307             Acquisition planning........................          12
308             Required sources of supplies and services...          12
309             Contractor qualifications...................          13
310             Market research.............................          14
311             Describing agency needs.....................          14
312             Acquisition of commercial items.............          16
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313             Simplified acquisition procedures...........          17
314             Sealed bidding..............................          17
315             Contracting by negotiation..................          17
316             Types of contracts..........................          20
317             Special contracting methods.................          20
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319             Small business programs.....................          22
322             Application of labor laws to Government 
                    acquisitions............................          22
323             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................          22
324             Protection of privacy and freedom of 
                    information.............................          23

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326             Other socioeconomic programs................          25
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
327             Patents, data, and copyrights...............          30
328

[Reserved]

330             Cost accounting standards...................          30
331             Contract cost principles and procedures.....          30
332             Contract financing..........................          31
333             Protests, disputes, and appeals.............          33
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
334             Major system acquisition....................          34
335             Research and development contracting........          34
336             Construction and architect-engineer 
                    contracts...............................          35
337             Service contracting--general................          36
339             Acquisition of information technology.......          37
                    SUBCHAPTER G--CONTRACT MANAGEMENT
342             Contract administration.....................          39
                     SUBCHAPTER H--CLAUSES AND FORMS
352             Solicitation provisions and contract clauses          40
353             Forms.......................................          69
                       SUBCHAPTERS I-L [RESERVED]
                   SUBCHAPTER M--HHS SUPPLEMENTATIONS
370             Special programs affecting acquisition......          70
371-399

[Reserved]

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                          SUBCHAPTER A_GENERAL



                           PART 300 [RESERVED]



PART 301_HHS ACQUISITION REGULATION SYSTEM--Table of Contents



             Subpart 301.1_Purpose, Authority, and Issuance

Sec.
301.101  Purpose.
301.103  Authority.
301.106  Office of Management and Budget approval under the Paperwork 
          Reduction Act.

Subpart 301.2 [Reserved]

                  Subpart 301.4_Deviations from the FAR

301.401  Deviations.

      Subpart 301.6_Career Development, Contracting Authority, and 
                            Responsibilities

301.602  Contracting officers.
301.602-3  Ratification of unauthorized commitments.
301.603  Selection, appointment, and termination of appointment of 
          contracting officers.
301.603-1  General.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



             Subpart 301.1_Purpose, Authority, and Issuance



301.101  Purpose.

    (a) The Department of Health and Human Services (HHS) Acquisition 
Regulation (HHSAR) establishes uniform HHS acquisition policies and 
procedures that implement and supplement the Federal Acquisition 
Regulation (FAR).
    (b)(1) The HHSAR contains HHS policies that govern the acquisition 
process or otherwise control acquisition relationships between HHS' 
contracting activities and contractors. The HHSAR contains--
    (i) Requirements of law;
    (ii) HHS-wide policies;
    (iii) Deviations from FAR requirements; and
    (iv) Policies that have a significant effect beyond the internal 
procedures of HHS or a significant cost or administrative impact on 
contractors or offerors.
    (2) Relevant internal procedures, guidance, and information not 
meeting the criteria in paragraph (b)(1) of this section are issued by 
HHS in other announcements, internal procedures, guidance, or 
information.



301.103  Authority.

    (b) The Assistant Secretary for Financial Resources (ASFR) 
prescribes the HHSAR under the authority of 5 U.S.C. 301 and section 
205(c) of the Federal Property and Administrative Services Act of 1949, 
as amended (40 U.S.C. 121(c)(2)), as delegated by the Secretary).
    (c) The HHSAR is issued in the Code of Federal Regulations (CFR) as 
chapter 3 of title 48, Department of Health and Human Services 
Acquisition Regulation. It may be referenced as ``48 CFR chapter 3.''



301.106  Office of Management and Budget approval under the Paperwork
Reduction Act.

    (a) The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) 
imposes a requirement on Federal agencies to obtain approval from the 
Office of Management and Budget (OMB) before collecting the same 
information from 10 or more members of the public.
    (b) The following OMB control numbers apply to the information 
collection and recordkeeping requirements contained in this chapter:

------------------------------------------------------------------------
                 HHSAR Segment                       OMB Control No.
------------------------------------------------------------------------
311.7102.......................................                0990-0434
311.7202(b)....................................                0990-0434
311.7300.......................................                0990-0436
337.103(d)(3)..................................                0990-0430
337.103(d)(4)..................................                0990-0433
370.301........................................                0990-0431
370.401........................................                0990-0432
352.211-1......................................                0990-0434
352.211-2......................................                0990-0434
352.211-3......................................                0990-0436
352.227-11.....................................                0990-0419
352.227-14.....................................                0990-0419
352.227-71.....................................                0990-0430
352.237-72.....................................                0990-0433
352.237-73.....................................                0990-0431
352.270-4a.....................................                0990-0431
352.270-4b.....................................                0990-0431
352.270-10.....................................                0990-0431

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352.270-11.....................................                0990-0432
352.270-5a.....................................                0990-0432
352.270-5b.....................................                0990-0432
------------------------------------------------------------------------

Subpart 301.2 [Reserved]



                  Subpart 301.4_Deviations from the FAR



301.401  Deviations.

    Contracting officers are not permitted to deviate from the FAR or 
HHSAR without seeking proper approval. With full acknowledgement of FAR 
1.102(d) regarding innovative approaches, any deviation to FAR or the 
HHSAR requires approval by the Senior Procurement Executive (SPE).



      Subpart 301.6_Career Development, Contracting Authority, and 
                            Responsibilities



301.602  Contracting officers.



301.602-3  Ratification of unauthorized commitments.

    (b) Policy. (1) The Government is not bound by agreements with, or 
contractual commitments made to, prospective contractors by individuals 
who do not have delegated contracting authority. Unauthorized 
commitments do not follow the appropriate process for the expenditure of 
Government funds. Consequently, the Government may not be able to ratify 
certain actions, putting a contractor at risk for taking direction from 
a Federal official other than the contracting officer. See FAR 1.602-1. 
Government employees responsible for unauthorized commitments are 
subject to disciplinary action. Contractors perform at their own risk 
when accepting direction from unauthorized officials. Failure to follow 
statutory and regulatory processes for the expenditure of Government 
funds is a very serious matter.
    (2) The head of the contracting activity (HCA) is the official 
authorized to ratify an unauthorized commitment. No other re-delegations 
are authorized.
    (c) Limitations. (5) The HCA shall coordinate the request for 
ratification with the Office of General Counsel, General Law Division 
and submit a copy to the SPE.



301.603  Selection, appointment, and termination of appointment of
contracting officers.



301.603-1  General.

    (a) The Agency head has delegated broad authority to the Chief 
Acquisition Officer, who in turn has further delegated this authority to 
the SPE. The SPE has further delegated specific acquisition authority to 
the Operating and Staff Division heads and the HCAs. The HCA (non-
delegable) shall select, appoint, and terminate the appointment of 
contracting officers.
    (b) To ensure proper control of redelegated acquisition authorities, 
HCAs shall maintain a file containing successive delegations of HCA 
authority through the contracting officer level.



PART 302_DEFINITIONS OF WORDS AND TERMS--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                        Subpart 302.1_Definitions



302.101  Definitions.

    (a) Agency head or head of the agency, unless otherwise stated, 
means the Secretary of Health and Human Services or specified designee.
    (b) Contracting Officer's Representative (COR) is a Federal employee 
designated in writing by a contracting officer to act as the contracting 
officer's representative in monitoring and administering specified 
aspects of contractor performance after award of a contract or order. In 
accordance with local procedures, operating divisions (OPDIVs) or staff 
divisions (STAFFDIVs) may designate CORs for firm fixed-price contracts 
or orders. COR's responsibilities may include verifying that:
    (1) The contractor's performance meets the standards set forth in 
the contract or order;
    (2) The contractor meets the contract or order's technical 
requirements by

[[Page 7]]

the specified delivery date(s) or within the period of performance; and
    (3) The contractor performs within cost ceiling stated in the 
contract or order. CORs must meet the training and certification 
requirements specified in 301.604.
    (c) Head of the Contracting Activity (HCA) is an official having 
overall responsibility for managing a contracting activity, i.e. the 
organization within an OPDIV or STAFFDIV or other HHS organization which 
has been delegated broad authority regarding the conduct of acquisition 
functions.



PART 303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
--Table of Contents



                        Subpart 303.1_Safeguards

Sec.
303.101  Standards of conduct.
303.101-3  Agency regulations.
303.104-7  Violations or possible violations of the Procurement 
          Integrity Act.

       Subpart 303.2_Contractor Gratuities to Government Personnel

303.203  Reporting suspected violations of the Gratuities clause.

Subpart 303.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them

303.602  Exceptions.

             Subpart 303.7_Voiding and Rescinding Contracts

303.704  Policy.

 Subpart 303.8_Limitation on the Payment of Funds to Influence Federal 
                              Transactions

303.808-70  Solicitation provision and contract clause.

      Subpart 303.10_Contractor Code of Business Ethics and Conduct

303.1003  Requirements.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                        Subpart 303.1_Safeguards



303.101  Standards of conduct.



303.101-3  Agency regulations.

    (a)(3) The HHS Standards of Conduct are prescribed in 45 CFR part 
73.



303.104-7  Violations or possible violations of the Procurement Integrity Act.

    (a)(1) The contracting officer shall submit to the head of the 
contracting activity (HCA) for review and concurrence the determination 
(along with supporting documentation) that a reported violation or 
possible violation of the statutory prohibitions has no impact on the 
pending award or selection of a contractor for award.
    (2) The contracting officer shall refer the determination that a 
reported violation or possible violation of the statutory prohibitions 
has an impact on the pending award or selection of a contractor, along 
with all related information available, to the HCA. The HCA shall--
    (i) Refer the matter immediately to the Associate Deputy Assistant 
Secretary--Acquisition (ADAS-A) for review, who may consult with the 
appropriate legal office representative and the Office of Inspector 
General (OIG) as appropriate; and
    (ii) Determine the necessary action in accordance with FAR 3.104-
7(c) and (d). The HCA shall obtain the approval or concurrence of the 
ADAS-A before proceeding with an action.
    (b) The HCA (non-delegable) shall act with respect to actions taken 
under the Federal Acquisition Regulation (FAR) clause at 52.203-10, 
Price or Fee Adjustment for Illegal or Improper Authority.



       Subpart 303.2_Contractor Gratuities to Government Personnel



303.203  Reporting suspected violations of the Gratuities clause.

    HHS personnel shall report suspected violations of the clause at FAR 
52.203-3, Gratuities, to the contracting officer, who will in turn 
report the matter to the Office of General Counsel (OGC), Ethics 
Division for disposition.

[[Page 8]]



Subpart 303.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them



303.602  Exceptions.

    The HCA (non-delegable) is the official authorized to approve an 
exception to the policy stated in FAR 3.601.



             Subpart 303.7_Voiding and Rescinding Contracts



303.704  Policy.

    (a) For purposes of supplementing FAR subpart 3.7, the HCA (non-
delegable) is the designee. Coordination with the Senior Procurement 
Executive is required.



 Subpart 303.8_Limitation on the Payment of Funds to Influence Federal 
                              Transactions



303.808-70  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 352.203-70, Anti-
lobbying, in solicitations and contracts that exceed the simplified 
acquisition threshold.



      Subpart 303.10_Contractor Code of Business Ethics and Conduct



303.1003  Requirements.

    (b) The contracting officer, when notified of a possible contractor 
violation, in accordance with FAR 3.1003(b), shall notify the OIG and 
the HCA.
    (c)(2) The contracting officer shall specify the title of HHS' OIG 
hotline poster and the Web site where the poster can be obtained in 
paragraph (b)(3) of the clause at FAR 52.203-14.



PART 304_ADMINISTRATIVE MATTERS--Table of Contents



                    Subpart 304.6_Contract Reporting

Sec.
304.602  General.
304.604  Responsibilities.

              Subpart 304.13_Personal Identity Verification

304.1300  Policy.

        Subpart 304.16_Unique Procurement Instrument Identifiers

304.1600  Scope of subpart.

Subpart 304.70 [Reserved]

     Subpart 304.71_Review and Approval of Proposed Contract Actions

304.7100  Policy.

  Subpart 304.72_Affordable Care Act Prevention and Public Health Fund_
                         Reporting Requirements

304.7200  Scope of subpart.
304.7201  Procedures.
304.7202  Contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                    Subpart 304.6_Contract Reporting



304.602  General.

    Follow internal department procedures for reporting information to 
the Federal Procurement Data System (FPDS) and for resolving technical 
or policy issues relating to FPDS contract reporting.



304.604  Responsibilities.

    The Department of Health and Human Services (HHS) acquisition 
officials and staff shall report their contract information in FPDS 
accurately and timely.



              Subpart 304.13_Personal Identity Verification



304.1300  Policy.

    To ensure compliance with Homeland Security Presidential Directive-
12: Policy for a Common Identification Standard for Federal Employees 
and Contractors (HSPD-12) and the Presidential Cross Agency Priority for 
strong authentication, contracting officers shall provide in each 
acquisition those HSPD-12 requirements necessary for contract 
performance.

[[Page 9]]



        Subpart 304.16_Unique Procurement Instrument Identifiers



304.1600  Scope of subpart.

    This subpart provides guidance for assigning identification numbers 
to solicitation or contract actions. The Senior Procurement Executive 
shall be responsible for establishing a numbering system within the 
department that conforms to Federal Acquisition Regulation (FAR) subpart 
4.16.

Subpart 304.70 [Reserved]



     Subpart 304.71_Review and Approval of Proposed Contract Actions



304.7100  Policy.

    In accordance with HHS delegated acquisition authority, the FAR, 
this regulation, internal policies and guidance, the head of the 
contracting activity (non-delegable) shall establish review and approval 
procedures for proposed contract actions to ensure that--
    (a) Contractual documents are in conformance with law, established 
policies and procedures, and sound business practices;
    (b) Contract actions properly reflect the mutual understanding of 
the parties; and
    (c) The contracting officer is informed of deficiencies and items of 
questionable acceptability, and takes corrective action.



  Subpart 304.72_Affordable Care Act Prevention and Public Health Fund_
                         Reporting Requirements



304.7200  Scope of subpart.

    This subpart implements Section 220 of Public Law 112-74, FY 2012 
Labor, HHS and Education Appropriations Act, which requires, semi-annual 
reporting on the use of funds from the Prevention and Public Health Fund 
(PPHF), Public Law 111-148, sec. 4002. Contractors that receive awards 
(or modifications to existing awards) with a value of $25,000 or more 
funded, in whole or in part, from the PPHF, shall report information 
specified in the clause at 352.204-70, Prevention and Public Health 
Fund--Reporting Requirements, including, but not limited to--
    (a) The dollar amount of contractor invoices;
    (b) The supplies delivered and services performed; and
    (c) Specific information on subcontracts with a value of $25,000 or 
more.



304.7201  Procedures.

    (a) In any contract action funded in whole or in part by the PPHF, 
the contracting officer shall indicate that the contract action is being 
made under the PPHF, and indicate which products or services are funded 
under the PPHF. This requirement applies whenever PPHF funds are used, 
regardless of the contract instrument.
    (b) To maximize transparency of PPHF funds that shall be reported by 
the contractor, the contracting officer shall structure contract awards 
to allow for separately tracking PPHF funds. For example, the 
contracting officer may consider awarding dedicated separate contracts 
when using PPHF funds or establishing contract line item number 
structures to prevent commingling of PPHF funds with other funds.
    (c) Contracting officers shall ensure that the contractor complies 
with the reporting requirements of 352.204-70. Upon receipt of each 
report, the contracting officer shall review it for completeness, 
address any clarity or completeness issues with the contractor, and 
submit the final approved report in Section 508 compliant format to an 
Assistant Secretary for Public Affairs point-of-contact for posting on 
HHS' PPHF Web site at http://www.hhs.gov/open/prevention/index.html no 
later than 30 days after the end of the reporting period. If the 
contractor fails to comply with the reporting requirements, the 
contracting officer shall exercise appropriate contractual remedies.
    (d) The contracting officer shall make the contractor's failure to 
comply with the reporting requirements a part of the contractor's 
performance information under FAR subpart 42.15.

[[Page 10]]



304.7202  Contract clause.

    Insert the clause at 352.204-70, Prevention and Public Health Fund--
Reporting Requirements, in all solicitations and contract actions funded 
in whole or in part with PPHF funds, except classified solicitations and 
contracts. This includes, but is not limited to, awarding or modifying 
orders against existing or new contracts issued under FAR subparts 8.4 
and 16.5 that will be funded with PPHF funds. Contracting officers shall 
include this clause in any existing contract or order that will be 
funded with PPHF funds. This clause is not required for any contract or 
order which contains a prior version of the clause at 352.204-70.

[[Page 11]]



            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING





PART 305_PUBLICIZING CONTRACT ACTIONS--Table of Contents



                Subpart 305.3_Synopses of Contract Awards

Sec.
305.303  Announcement of contract awards.

                    Subpart 305.5_Paid Advertisements

305.502  Authority.

Subpart 305.70_Publicizing Requirements Funded From the Affordable Care 
                  Act Prevention and Public Health Fund

305.7001  Scope.
305.7002  Applicability.
305.7003  Publicizing preaward.
305.7004  Publicizing postaward.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                Subpart 305.3_Synopses of Contract Awards



305.303  Announcement of contract awards.

    (a) Public announcement. The contracting officer shall report 
awards, not exempt under Federal Acquisition Regulation (FAR) 5.303, to 
the Office of the Assistant Secretary for Legislation (Congressional 
Liaison Office.)



                    Subpart 305.5_Paid Advertisements



305.502  Authority.

    Written approval at least one level above the contracting officer 
shall be obtained prior to placing advertisements or notices in 
newspapers.



Subpart 305.70_Publicizing Requirements Funded From the Affordable Care 
                  Act Prevention and Public Health Fund



305.7001  Scope.

    Pursuant to appropriations acts, this subpart prescribes 
requirements for posting presolicitation and award notices for actions 
funded in whole or in part from the Prevention and Public Health Fund 
(PPHF). The requirements of this subpart enhance transparency to the 
public.



305.7002  Applicability.

    This subpart applies to all actions funded in whole or in part by 
the PPHF.



305.7003  Publicizing preaward.

    Notices of all proposed contract actions, funded in whole or in part 
by the PPHF, shall be identified on HHS' Prevention and Public Health 
Fund Web site at http://www.hhs.gov/open/prevention/index.html no later 
than 1-day after issuance of the solicitation or other request for 
proposal or quotation document. When applicable, the notice shall 
provide a link to the full text; for example, a link to the FedBizOpps 
notice required by FAR 5.201.



305.7004  Publicizing postaward.

    Notices of contract actions exceeding $25,000, funded in whole or in 
part by the PPHF, shall be identified on HHS' PPHF Web site at http://
www.hhs.gov/open/prevention/index.html no later than 5 days after the 
contract action occurs.



PART 306_COMPETITION REQUIREMENTS--Table of Contents



   Subpart 306.2_Full and Open Competition After Exclusion of Sources

Sec.
306.202  Establishing or maintaining alternative sources.

           Subpart 306.3_Other Than Full and Open Competition

306.302  Circumstances permitting other than full and open competition.
306.302-1  Only one responsible source and no other supplies or services 
          will satisfy agency requirements.

                   Subpart 306.5_Competition Advocates

306.501  Requirement.


[[Page 12]]


    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



   Subpart 306.2_Full and Open Competition After Exclusion of Sources



306.202  Establishing or maintaining alternative sources.

    (a) The Senior Procurement Executive (SPE) shall make the 
determination required in Federal Acquisition Regulation (FAR) 6.202(a).
    (b)(1) The contracting officer shall prepare the required 
determination and findings (D&F), see FAR 6.202(b)(1), based on the data 
provided by program personnel. The appropriate Competition Advocate (CA) 
(non-delegable) shall sign the D&F, indicating concurrence. The final 
determination will be made by the SPE.



           Subpart 306.3_Other Than Full and Open Competition



306.302  Circumstances permitting other than full and open competition.



306.302-1  Only one responsible source and no other supplies or services
will satisfy agency requirements. See FAR 6.302-1.

    For acquisitions covered by 42 U.S.C. 247d-6a(b)(2)(A), ``available 
from only one responsible source'' shall be deemed to mean ``available 
from only one responsible source or only from a limited number of 
responsible sources''.



                   Subpart 306.5_Competition Advocates



306.501  Requirement.

    The Department Competition Advocate for Health and Human Services is 
located in the Division of Acquisition.



PART 307_ACQUISITION PLANNING--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



307.105  Contents of written acquisition plans.

    Federal Acquisition Regulation 7.105 specifies the content 
requirements for a written Acquisition Plan (AP). The Department of 
Health and Human Services requires a written AP for all acquisitions 
above the simplified acquisition threshold.



PART 308_REQUIRED SOURCES OF SUPPLIES AND SERVICES--Table of Contents



                 Subpart 308.4_Federal Supply Schedules

Sec.
308.405-6  Limited source justification and approval.

       Subpart 308.8_Acquisition of Printing and Related Supplies

308.800  Scope of subpart.
308.801  Definitions.
308.802  Policy.
308.803  Solicitation provision and contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                 Subpart 308.4_Federal Supply Schedules



308.405-6  Limited source justification and approval.

    (d)(1) As required by Federal Acquisition Regulation (FAR) 8.405-1 
or 8.405-2, the responsible program office must provide a written 
justification for an acquisition under the Federal Supply Service 
program that restricts the number of schedule contractors or when 
procuring an item peculiar to one manufacturer.



       Subpart 308.8_Acquisition of Printing and Related Supplies



308.800  Scope of subpart.

    This subpart provides the Department of Health and Human Services 
(HHS) policy for the acquisition of Government printing and related 
supplies. The HHS Office of the Assistant Secretary for Public Affairs 
is responsible for the review and clearance of print and electronic 
publications,

[[Page 13]]

printing and related supplies, audiovisual products, and communication 
service contracts. See FAR 8.802 for exceptions.



308.801  Definitions.

    The terms ``printing'' and ``duplicating/copying'' are defined in 
the Government Printing and Binding Regulations of the Joint Committee 
on Printing. The regulations are available at http://www.gpo.gov.



308.802  Policy.

    In accordance with FAR 8.802(b), the Central Printing and 
Publications Management Organization at Program Support Center is the 
HHS designated central printing authority.



308.803  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 352.208-70, 
Printing and Duplication, in all solicitations, contracts, and orders 
over the simplified acquisition threshold, unless printing or increased 
duplication is authorized by statute.



PART 309_CONTRACTOR QUALIFICATIONS--Table of Contents



         Subpart 309.4_Debarment, Suspension, and Ineligibility

Sec.
309.403  Definitions.
309.404  System for Award Management (SAM) exclusions.
309.405  Effect of listing (compelling reason determinations).
309.406  Debarment.
309.406-3  Procedures.
309.407  Suspension.
309.407-3  Procedures.
309.470  Reporting of suspected causes for debarment or suspension or 
          the taking of evasive actions.
309.470-1  Situations where reports are required.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



         Subpart 309.4_Debarment, Suspension, and Ineligibility



309.403  Definitions.

    The following definition applies to this subpart:
    The HHS Suspension and Debarment Official is the Deputy Assistant 
Secretary (DAS) for the Office of Grants and Acquisition Policy and 
Accountability (OGAPA).



309.404  System for Award Management (SAM) exclusions.

    (c) For actions made by HHS pursuant to FAR 9.406 and 9.407, the 
Office of Recipient Integrity Coordination shall perform the actions 
required by FAR 9.404(c).



309.405  Effect of listing (compelling reason determinations).

    (a) The head of the contracting activity (HCA) (non-delegable) may, 
with the written concurrence of the Suspension and Debarment Official, 
make the determinations referenced in FAR 9.405(a) regarding contracts.
    (1) If a contracting officer considers it necessary to award a 
contract, or consent to a subcontract with a debarred or suspended 
contractor, the contracting officer shall prepare a determination, 
including all pertinent documentation, and submit it through appropriate 
acquisition channels to the HCA. The documentation shall include the 
date by which approval is required and a compelling reason for the 
proposed action. Compelling reasons for award of a contract or consent 
to a subcontract with a debarred or suspended contractor include the 
following:
    (i) Only the cited contractor can provide the property or services, 
and
    (ii) The urgency of the requirement dictates that HHS conduct 
business with the cited contractor.
    (2) If the HCA decides to approve the requested action, the HCA 
shall request the concurrence of the Suspension and Debarment Official 
and, if given, shall inform the contracting officer in writing of the 
determination within the required time period.

[[Page 14]]



309.406  Debarment.



309.406-3  Procedures.

    Refer all matters appropriate for consideration by an agency 
Suspension and Debarment Official as soon as practicable to the 
appropriate Suspension and Debarment Official identified in 309.403. Any 
person may refer a matter to the Suspension and Debarment Official.



309.407  Suspension.



309.407-3  Procedures.

    Refer all matters appropriate for consideration by an agency 
Suspension and Debarment Official as soon as practicable to the 
appropriate Suspension and Debarment Official identified in 309.403. Any 
person may refer a matter to the Suspension and Debarment Official.



309.470  Reporting of suspected causes for debarment or suspension or 
the taking of evasive actions.



309.470-1  Situations where reports are required.

    The contracting officer shall report to the HCA and the Associate 
Deputy Assistant Secretary--Acquisition whenever the contracting 
officer--
    (a) Knows or suspects that a contractor is committing or has 
committed any of the acts described in FAR 9.406-2 or 9.407-2; or
    (b) Suspects a contractor is attempting to evade the prohibitions of 
debarment or suspension imposed under FAR 9.405, or any other comparable 
regulation, by changes of address, multiple addresses, formation of new 
companies, or by other devices.



PART 310_MARKET RESEARCH--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



310.001  Policy.

    Market research shall be conducted as prescribed in Federal 
Acquisition Regulation part 10.



PART 311_DESCRIBING AGENCY NEEDS--Table of Contents



           Subpart 311.70_Section 508 Accessibility Standards

Sec.
311.7000  Defining electronic information technology requirements.

     Subpart 311.71_Public Accommodations and Commercial Facilities

311.7100  Policy.
311.7101  Responsibilities.
311.7102  Contract clause.

            Subpart 311.72_Conference Funding and Sponsorship

311.7200  Policy.
311.7201  Funding and sponsorship.
311.7202  Contract clause.

           Subpart 311.73_Contractor Collection of Information

311.7300  Policy.
311.7301  Contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



           Subpart 311.70_Section 508 Accessibility Standards



311.7000  Defining electronic and information technology requirements.

    The contracting officer shall ensure that requiring activities 
specify agency needs for electronic and information technology (EIT) 
supplies and services, and document market research, document EIT 
requirements, and identify the applicable Section 508 accessibility 
standards. See FAR 11.002(f) and HHSAR subpart 339.2.



     Subpart 311.71_Public Accommodations and Commercial Facilities.



311.7100  Policy.

    (a) It is HHS policy that all contractors comply with current and 
any future changes to 28 CFR part 36--Nondiscrimination on the Basis of 
Disability by Public Accommodations and in Commercial Facilities. For 
the purpose of this policy, accessibility is defined as both physical 
access to public

[[Page 15]]

accommodations and commercial facilities, and access to aids and 
services enabling individuals with sensory disabilities to fully 
participate in events in public accommodations and commercial 
facilities.
    (b) This policy applies to all contracts requiring contractors to 
conduct events in public accommodations and commercial facilities open 
to the public or involving HHS personnel, but not ad hoc meetings 
necessary or incidental to contract performance.



311.7101  Responsibilities.

    The contractor shall submit a plan assuring that any event held will 
meet or exceed the minimum accessibility standards set forth in 28 CFR 
part 36. A consolidated or master plan for contracts requiring numerous 
events in public accommodations and commercial facilities is acceptable.



311.7102  Contract clause.

    The contracting officer shall insert the clause at 352.211-1, Public 
Accommodations and Commercial Facilities, in solicitations, contracts, 
and orders requiring the contractor to conduct events in accordance with 
311.7100(b).



            Subpart 311.72_Conference Funding and Sponsorship



311.7200  Policy.

    HHS policy requires that all conferences the agency funds or 
sponsors shall: be consistent with HHS missions, objectives, and 
policies; represent an efficient and effective use of taxpayer funds; 
and withstand public scrutiny.



311.7201  Funding and sponsorship.

    Funding a conference through a HHS contract does not automatically 
imply HHS sponsorship, unless the conference is funded entirely by the 
agency. Also, HHS staff attendance or participation at a conference does 
not imply HHS conference sponsorship. Accordingly, for non-conference 
contracts funded entirely by HHS prior to a contractor claiming HHS 
sponsorship, the contractor must provide the contracting officer a 
written request for permission to designate HHS the conference sponsor. 
The OPDIV or STAFFDIV (operating division or staff division) head, or 
designee, shall approve such requests. The determination on what 
constitutes a ``conference contract'' or a ``non-conference contract'' 
shall be made by the contracting officer.



311.7202  Contract clause.

    To ensure that a contractor:
    (a) Properly requests approval to designate HHS the conference 
sponsor, where HHS is not the sole provider of conference funding; and
    (b) Includes an appropriate Federal funding disclosure and content 
disclaimer statement for conference materials, the contracting officer 
shall include the clause at 352.211-2, Conference Sponsorship Request 
and Conference Materials Disclaimer, in solicitations, contracts, and 
orders providing funding which partially or fully supports a conference.



           Subpart 311.73_Contractor Collection of Information



311.7300  Policy.

    In accordance with the Paperwork Reduction Act (PRA), contractors 
shall not proceed with collecting information from surveys, 
questionnaires, or interviews until the COR obtains an Office of 
Management and Budget clearance and the contracting officer issues 
written approval to proceed. For any contract involving a requirement to 
collect or record information calling either for answers to identical 
questions from 10 or more persons other than Federal employees, or 
information from Federal employees which is outside the scope of their 
employment, for use by the Federal Government or disclosure to third 
parties, the contracting officer must comply with the PRA of 1995 (44 
U.S.C. 3501 et seq.).



311.7301  Contract clause.

    The contracting officer shall insert the clause at 352.211-3, 
Paperwork Reduction Act, in solicitations, contracts, and orders that 
require a contractor to collect the same information from 10 or more 
persons.

[[Page 16]]



PART 312_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents



          Subpart 312.1_Acquisition of Commercial Items_General

Sec.
312.101  Policy.

  Subpart 312.2_Special Requirements for the Acquisition of Commercial 
                                  Items

312.202(d)  Market research and description of agency need.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



          Subpart 312.1_Acquisition of Commercial Items_General



312.101  Policy.

    Contracting offices shall use the HHS Smarter Buying Program to the 
maximum extent practicable. See HHS Acquisition Regulation part 307, 
Acquisition Planning.



  Subpart 312.2_Special Requirements for the Acquisition of Commercial 
                                  Items



312.202(d)  Market research and description of agency need.

    Whenever a requiring activity specifies electronic and information 
technology (EIT) supplies and services subject to Section 508 of the 
Rehabilitation Act of 1973, as amended, the requiring activity shall 
acquire commercially available supplies and services to the maximum 
extent possible while ensuring Section 508 compliance. See part 339.

[[Page 17]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES





PART 313_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents



Sec.
313.003  Policy.

              Subpart 313.3_Simplified Acquisition Methods

313.301  Government-wide commercial purchase card.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



313.003  Policy.

    Electronic and information technology (EIT) supplies and services 
acquired pursuant to Federal Acquisition Regulation part 13 shall comply 
with Section 508 of the Rehabilitation Act of 1973, as amended. See part 
339.



              Subpart 313.3_Simplified Acquisition Methods



313.301  Government-wide commercial purchase card.

    (b) Make all HHS transactions utilizing the government-wide 
commercial purchase card in accordance with the HHS Purchase Card 
Program.



PART 314_SEALED BIDDING--Table of Contents



                   Subpart 314.1_Use of Sealed Bidding

Sec.
314.103  Policy.

           Subpart 314.4_Opening of Bids and Award of Contract

314.404  Rejection of bids.
314.404-1  Cancellation of invitations after opening.
314.407  Mistakes in bids.
314.407-3  Other mistakes disclosed before award.
314.407-4  Mistakes after award.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                   Subpart 314.1_Use of Sealed Bidding



314.103  Policy.

    Electronic and information technology (EIT) supplies and services 
acquired using sealed-bid procedures shall comply with Section 508 of 
the Rehabilitation Act of 1973, as amended. See part 339.



           Subpart 314.4_Opening of Bids and Award of Contract



314.404  Rejection of bids.



314.404-1  Cancellation of invitations after opening.

    (c) The head of the contracting activity (HCA) shall make the 
determinations specified in FAR 14.404-1(c).



314.407  Mistakes in bids.



314.407-3  Other mistakes disclosed before award.

    (e) The HCA has the authority to make determinations under 
paragraphs (a), (b), (c), and (d) of FAR 14.407-3.



314.407-4  Mistakes after award.

    (c) The HCA has the authority to make administrative determinations 
in connection with alleged post-award mistakes.



PART 315_CONTRACTING BY NEGOTIATION--Table of Contents



   Subpart 315.2_Solicitation and Receipt of Proposals and Information

Sec.
315.204-5  Part IV--Representations and instructions.
315.208  Submission, modification, revision, and withdrawal of 
          proposals.

                     Subpart 315.3_Source Selection

315.303-70  Policy.
315.304  Evaluation factors and significant subfactors.
315.305  Proposal evaluation.

[[Page 18]]

                     Subpart 315.4_Contract Pricing

315.404  Proposal analysis.
315.404-2  Information to support proposal analysis.

                   Subpart 315.6_Unsolicited Proposals

315.605  Content of unsolicited proposals.
315.606  Agency procedures.
315.606-1  Receipt and initial review.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



   Subpart 315.2_Solicitation and Receipt of Proposals and Information



315.204-5  Part IV--Representations and instructions.

    (c) Section M, Evaluation factors for award. (1) The requiring 
activity shall develop technical evaluation factors and submit them to 
the contracting officer as part of the acquisition plan or other 
acquisition request documentation for inclusion in a solicitation. The 
requiring activity shall indicate the relative importance or weight of 
the evaluation factors based on the requirements of an individual 
acquisition.
    (2) Only a formal amendment to a solicitation can change the 
evaluation factors.



315.208  Submission, modification, revision, and withdrawal of proposals.

    (b) In addition to the provision in Federal Acquisition Regulation 
(FAR) 52.215-1, Instructions to Offerors--Competitive Acquisition, if 
the head of the contracting activity (HCA) determines that biomedical or 
behavioral research and development (R&D) acquisitions are subject to 
conditions other than those specified in FAR 52.215-1(c)(3), the HCA may 
authorize for use in competitive solicitations for R&D, the provision at 
352.215-70, Late Proposals and Revisions. This is an authorized FAR 
deviation.
    (2) When the provision at 352.215-70 is included in the solicitation 
and if the HCA intends to consider a proposal or proposals received 
after the exact time specified for receipt, the contracting officer, 
with the assistance of cost or technical personnel as appropriate, shall 
determine in writing that the proposal(s) meets the requirements of the 
provision at 352.215-70.



                     Subpart 315.3_Source Selection



315.303-70  Policy.

    (a) If an operating division (OPDIV) is required by statute to use 
peer review for technical review of proposals, the requirements of those 
statutes, any implementing regulatory requirements, the Federal Advisory 
Committee Act, and as applicable, any approved Department of Health and 
Human Services Acquisition Regulation (HHSAR) deviation(s) from this 
subpart take precedence over the otherwise applicable requirements of 
this subpart.
    (b) The statutes that require such review and implementing 
regulations are as follows: National Institutes of Health--42 U.S.C. 
289a, Peer Review Requirements and 42 CFR part 52h, Scientific Peer 
Review of Research Grant Applications and Research and Development 
Contract Projects; Substance Abuse and Mental Health Services 
Administration--42 U.S.C. 290aa-3, Peer Review and Agency for Healthcare 
Research and Quality--42 U.S.C. 299c-1, Peer review with respect to 
grants and contracts.



315.304  Evaluation factors and significant subfactors.

    When acquiring electronic and information technology supplies and 
services (EIT) using negotiated procedures, contracting officers shall 
comply with Section 508 of the Rehabilitation Act of 1973, as amended.



315.305  Proposal evaluation.

    (c) Use of non-Federal evaluators. (1) Except when peer review is 
required by statute as provided in 315.303-70(a), decisions to disclose 
proposals to non-Federal evaluators shall be made by the official 
responsible for appointing Source Selection Evaluation Team members in 
accordance with OPDIV procedures. The avoidance of organizational and 
personal conflicts of interest must be taken into consideration when 
making the decision to use non-Federal evaluators.

[[Page 19]]

    (2) When a solicited proposal will be disclosed outside the 
Government to a contractor or a contractor employee for evaluation 
purposes, the following or similar conditions shall be part of the 
written agreement with the contractor prior to disclosure:

                   CONDITIONS FOR EVALUATING PROPOSALS

    The contractor agrees that it and its employees, as well as any 
subcontractors and their employees (in these conditions, ``evaluator'') 
will use the data (trade secrets, business data, and technical data) 
contained in the proposal for evaluation purposes only. The foregoing 
requirement does not apply to data obtained from another source without 
restriction. Any notice or legend placed on the proposal by either HHS 
or the offeror shall be applied to any reproduction or abstract provided 
to the evaluator or made by the evaluator. Upon completion of the 
evaluation, the evaluator shall return to the Government the furnished 
copy of the proposal or abstract, and all copies thereof, to the HHS 
office which initially furnished the proposal for evaluation. The 
evaluator shall not contact the offeror concerning any aspects of a 
proposal's contents.



                     Subpart 315.4_Contract Pricing



315.404  Proposal analysis.



315.404-2  Information to support proposal analysis.

    (a)(2) When some or all information sufficient to determine the 
reasonableness of the proposed cost or price is already available or can 
be obtained from the cognizant audit agency, or by other means including 
data obtained through market research (See FAR part 10 and HHSAR part 
310) the contracting officer may request less-than-complete field 
pricing support (specifying in the request the information needed) or 
may waive in writing the requirement for audit and field pricing support 
by documenting the file to indicate what information will be used. When 
field-pricing support is required, contracting officers shall make the 
request through the HCA.



                   Subpart 315.6_Unsolicited Proposals



315.605  Content of unsolicited proposals.

    (d) Warranty by offeror. To ensure against contacts between HHS 
personnel and prospective offerors that would exceed the limits of 
advance guidance set forth in FAR 15.604 and potentially result in an 
unfair advantage to an offeror, the prospective offeror of an 
unsolicited proposal must include the following warranty in any 
unsolicited proposal. Contracting officers receiving an unsolicited 
proposal without this warranty shall not process the proposal until the 
offeror is notified of the missing language and given an opportunity to 
submit a proper warranty. If no warranty is provided in a reasonable 
time, the contracting officer shall reject the unsolicited proposal, 
notify the offeror of the rejection, and document the actions in the 
file.

                          UNSOLICITED PROPOSAL

                           WARRANTY BY OFFEROR

    This is to warrant that--
    (a) This proposal has not been prepared under Government 
supervision;
    (b) The methods and approaches stated in the proposal were developed 
by this offeror;
    (c) Any contact with HHS personnel has been within the limits of 
appropriate advance guidance set forth in FAR 15.604; and,
    (d) No prior commitments were received from HHS personnel regarding 
acceptance of this proposal.

Date:___________________________________________________________________
Organization:___________________________________________________________
Name:___________________________________________________________________
Title:__________________________________________________________________

    (This warranty shall be signed by a responsible management official 
of the proposing organization who is a person authorized to 
contractually obligate the organization.)



315.606  Agency procedures.

    (a) The HCA is responsible for establishing procedures to comply 
with FAR 15.606(a).
    (b) The HCA or designee shall be the point of contact for 
coordinating the

[[Page 20]]

receipt and processing of unsolicited proposals.



315.606-1  Receipt and initial review.

    (d) OPDIVs may consider an unsolicited proposal even though an 
organization initially submitted it as a grant application. However, 
OPDIVs shall not award contracts based on unsolicited proposals that 
have been rejected for grant awards due to lack of scientific merit.



PART 316_TYPES OF CONTRACTS--Table of Contents



               Subpart 316.3_Cost-Reimbursement Contracts

Sec.
316.307  Contract clauses.

               Subpart 316.5_Indefinite-Delivery Contracts

316.505  Ordering.

   Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts

316.603  Letter contracts.
316.603-3  Limitations.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



               Subpart 316.3_Cost-Reimbursement Contracts



316.307  Contract clauses.

    (a)(1) If a contract for research and development is with a hospital 
(profit or nonprofit), the contracting officer shall modify the 
``Allowable Cost and Payment'' clause at FAR 52.216-7 by deleting from 
paragraph (a) the words ``Federal Acquisition Regulation (FAR) subpart 
31.2'' and substituting ``45 CFR part 75.''
    (2) The contracting officer shall also insert the clause at 352.216-
70, Additional Cost Principles for Hospitals (Profit or Non-Profit), in 
solicitations and contracts with a hospital (profit or non-profit) when 
a cost-reimbursement contract is contemplated.



               Subpart 316.5_Indefinite-Delivery Contracts



316.505  Ordering.

    (b)(8) The Department of Health and Human Services (HHS) Competition 
Advocate is the task-order and delivery-order ombudsman for the 
department. Ombudsmen for each of the HHS contracting activities shall 
be designated in writing by the head of the contracting activity. See 
part 306.



   Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts



316.603  Letter contracts.



316.603-3  Limitations.

    An official one level above the contracting officer shall make the 
written determination, to be included in the contract file, that no 
other contract type is suitable and to approve all letter contract 
modifications. No letter contract or modification can exceed the limits 
prescribed in FAR 16.603-2(c).



PART 317_SPECIAL CONTRACTING METHODS--Table of Contents



                  Subpart 317.1_Multi-Year Contracting

Sec.
317.104  General.
317.105  Policy.
317.105-1  Uses.
317.107  Options.
317.108  Congressional notification.

                          Subpart 317.2_Options

317.204  Contracts.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                  Subpart 317.1_Multi-Year Contracting



317.104  General.

    (b) The Senior Procurement Executive (SPE) is the agency approving 
official for determinations under Federal Acquisition Regulation (FAR) 
17.104(b).

[[Page 21]]



317.105  Policy.



317.105-1  Uses.

    (a) Each head of the contracting activity (HCA) determination to use 
multi-year contracting, as defined in FAR 17.103, is limited to 
individual acquisitions where the full estimated cancellation ceiling 
does not exceed 20 percent of the total contract value over the multi-
year term or $12.5 million, whichever is less. Cancellation ceiling 
provisions shall conform to the requirements of FAR 17.106-1(c). The 
determination is not delegable and shall address the issues in FAR 
17.105-1(a).
    (b)(1) SPE approval is required for any--
    (i) Individual determination to use multi-year contracting with a 
cancellation ceiling in excess of the limits in 317.105-1(a); or
    (ii) Class determination (see FAR subpart 1.7).
    (2) A determination involving a cancellation ceiling in excess of 
the limits in 317.105-1(a) shall present a well-documented justification 
for the estimated cancellation ceiling. When the estimated cancellation 
ceiling exceeds $12.5 million, the determination shall accompany a draft 
congressional notification letter pursuant to FAR 17.108 and 317.108.



317.107  Options.

    When included as part of a multi-year contract, use of options shall 
not extend the performance of the original requirement beyond 5 years. 
Options may serve as a means to acquire related services (severable or 
non-severable) and, upon their exercise, shall receive funding from the 
then-current fiscal year's appropriation.



317.108  Congressional notification.

    (a) The SPE shall give the approval of the written notification 
required by FAR 17.108(a). Upon approval of the determination required 
by 317.105-1(b)(1), the HCA will finalize and sign the congressional 
notification letter and provide it to the appropriate House and Senate 
committees.



                          Subpart 317.2_Options



317.204  Contracts.

    (e)(1) Information technology contracts. Notwithstanding FAR 
17.204(e), the 5-year limitations apply also to information technology 
contracts unless a longer period is authorized by statute.
    (2) Requests to exceed 5-year limitation. A request to exceed the 5-
year limitation specified in FAR 17.204(e) must follow guidance in FAR 
Part 1.7.
    (3) Approval authority. All requests to exceed the 5-year 
limitations specified in FAR 17.204(e) must be supported with a 
Determination and Finding and approved by:
    (i) The HCA; and
    (ii) The HHS SPE.

[[Page 22]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 319_SMALL BUSINESS PROGRAMS--Table of Contents



                         Subpart 319.2_Policies

Sec.
319.201  General policy.
319.270-1  Mentor Protege Program Solicitation provision and contract 
          clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                         Subpart 319.2_Policies



319.201  General policy.

    (d) The functional management responsibilities for the Department of 
Health and Human Services' (HHS) small business program are delegated to 
the Office of Small and Disadvantaged Business Utilization (OSDBU) 
Director.
    (e)(1) The HHS OSDBU Director shall exercise full management 
authority over the small business program. The small business specialist 
(SBS) shall review and make recommendations for all acquisitions, unless 
exempted by statute, that are not being set aside for small business in 
accordance with Federal Acquisition Regulation (FAR) 19.502. The review 
must take place prior to issuing the solicitation.
    (2) Within the Indian Health Service (IHS), the primary SBSs are 
responsible for IHS' overall implementation of the HHS small business 
program; however, each IHS contracting office will assign a small 
business technical advisor (SBTA) to perform those functions and 
responsibilities necessary to implement the small business program. The 
primary IHS SBS shall assist and provide guidance to respective SBTAs.



319.270-1  Mentor Protege Program Solicitation provision and contract clause.

    (a) The contacting officer shall insert the provision at 352.219-70, 
Mentor-Protege Program, in solicitations that include the clause at FAR 
52.219-9, Small Business Subcontracting Plan. The provision requires 
offerors to provide the contracting officer a copy of their HHS Office 
of OSDBU-approved mentor-protege agreement in response to a 
solicitation.
    (b) The contacting officer shall insert the clause at 352.219-71, 
Mentor-Protege Program Reporting Requirements, in contracts that include 
the clause at FAR 52.219-9, Small Business Subcontracting Plan, and 
which are awarded to a contractor with an HHS OSDBU-approved mentor-
protege agreement.



PART 322_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



               Subpart 322.8_Equal Employment Opportunity



322.810  Solicitation provisions and contract clauses.

    (h) The contracting officer shall insert the clause at 352.222-70, 
Contractor Cooperation in Equal Employment Opportunity Investigations, 
in solicitations, contracts, and orders that include the clause at FAR 
52.222-26, Equal Opportunity.



PART 323_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
--Table of Contents



                    Subpart 323.70_Safety and Health

Sec.
323.7000  Scope of subpart.
323.7001  Policy.
323.7002  Actions required.

           Subpart 323.71_Sustainable Acquisition Requirements

323.7100  Policy.
323.7101  Applicability.
323.7102  Procedures.
323.7103  Solicitation Provision.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

[[Page 23]]


    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



323.7000  Scope of subpart.

    This subpart provides procedures for administering safety and health 
requirements.



323.7001  Policy.

    The contracting officer shall follow the guidance in this subpart 
when additional requirements for safety and health are necessary for an 
acquisition.



323.7002  Actions required.

    Contracting activities. The contracting officer shall insert the 
clause at 352.223-70, Safety and Health, or a clause substantially the 
same, in solicitations and contracts that involve hazardous materials or 
hazardous operations for the following types of requirements:
    (a) Services or products.
    (b) Research, development, or test projects.
    (c) Transportation of hazardous materials.
    (d) Construction, including construction of facilities on the 
contractor's premises.



           Subpart 323.71_Sustainable Acquisition Requirements



323.7100  Policy.

    This subpart provides procedures for sustainable acquisitions and 
use of the following: Designated recycled content; energy efficient, 
environmentally preferred, Electronic Product Environmental Assessment 
Tool (EPEAT)-registered, bio-based, water efficient, non-ozone depleting 
products and services; and alternate fuel vehicles and fuels. The 
Department of Health and Human Services (HHS) has designated product and 
service codes for supplies and services having sustainable acquisition 
attributes. See FAR part 23.



323.7101  Applicability.

    It is HHS policy to include a solicitation provision and to include 
an evaluation factor for an offeror's Sustainable Action Plan when 
acquiring sustainable products and services. This applies only to new 
contracts and orders above the micro-purchase threshold. Such contracts 
and orders include, but are not limited to: Office supplies; 
construction, renovation or repair; building operations and maintenance; 
landscaping services; pest management; electronic equipment, including 
leasing; fleet maintenance; janitorial services; laundry services; 
cafeteria operations; and meetings and conference services. If using a 
product or service code designated for supplies or services having 
sustainable acquisition attributes but a review of the requirement 
determines that no opportunity exists to acquire sustainable acquisition 
supplies or services, document the determination in the contract file 
and make note in the solicitation.



323.7102  Procedures.

    (a) When required by the solicitation, offerors or quoters must 
include a Sustainable Acquisition Plan in their technical proposal 
addressing the environmental products and services for delivery under 
the resulting contract.
    (b) The contracting officer shall incorporate the final Sustainable 
Acquisition Plan into the contract.
    (c) The contracting officer shall ensure that sustainability is 
included as an evaluation factor in all applicable new contracts and 
orders when the acquisition utilizes a product or service code 
designated by HHS for supplies or services having sustainable 
acquisition attributes.



323.7103  Solicitation Provision.

    The contracting officer shall insert the provision at 352.223-71, 
Instruction to Offerors--Sustainable Acquisition, in solicitations above 
the micro-purchase threshold when the acquisition utilizes a product or 
service code designated by HHS as having sustainable acquisition 
attributes.



PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION--Table of Contents



             Subpart 324.1_Protection of Individual Privacy

Sec.
324.103  Procedures for the Privacy Act.
324.104  Restrictions on Contractor Access to Government or Third Party 
          Information.

[[Page 24]]

324.105  Contract clauses.

 Subpart 324.70_Health Insurance Portability and Accountability Act of 
                              1996 (HIPAA)

324.7000  Scope of subpart.
324.7001  Policy on Compliance with HIPAA Business Associate Contract 
          Requirements.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



             Subpart 324.1_Protection of Individual Privacy



324.103  Procedures for the Privacy Act.

    (a) The contracting officer shall review all acquisition request 
documentation to determine whether the requirements of the Privacy Act 
of 1974 (5 U.S.C. 552a) are applicable. The Privacy Act requirements 
apply when a contract or order requires the contractor to design, 
develop, or operate any Privacy Act system of records on individuals to 
accomplish an agency function. When applicable, the contracting officer 
shall include the two Privacy Act clauses required by Federal 
Acquisition Regulation (FAR) 24.104 in the solicitation and contract or 
order. In addition, the contracting officer shall include the two FAR 
Privacy Act clauses, and other pertinent information specified in this 
subpart, in any modification which results in the Privacy Act 
requirements becoming applicable to a contract or order.
    (b) The contracting officer shall ensure that the statement of work 
or performance work statement (SOW or PWS) specifies the system(s) of 
records or proposed system(s) of records to which the Privacy Act and 
the implementing regulations are applicable or may be applicable. The 
contracting officer shall send the contractor a copy of 45 CFR part 5b, 
which includes the rules of conduct and other Privacy Act requirements.
    (c) The contracting officer shall ensure that the contract SOW or 
PWS specifies for both the Privacy Act and the Federal Records Act the 
disposition to be made of the system(s) of records upon completion of 
contract performance. The contract SOW or PWS may require the contractor 
to destroy the records, remove personal identifiers, or turn the records 
over to the contracting officer. If there is a legitimate need for a 
contractor to keep copies of the records after completion of a contract, 
the contractor must take measures, as approved by the contracting 
officer, to keep the records confidential and protect the individuals' 
privacy.
    (d) For any acquisition subject to Privacy Act requirements, the 
requiring activity prior to award shall prepare and have published in 
the Federal Register a ``system notice,'' describing the Department of 
Health and Human Services' (HHS) intent to establish a new system of 
records on individuals, to make modifications to an existing system, or 
to disclose information in regard to an existing system. The requiring 
activity shall attach a copy of the system notice to the acquisition 
plan or other acquisition request documentation. If a system notice is 
not attached, the contracting officer shall inquire about its status and 
shall obtain a copy from the requiring activity for inclusion in the 
contract file. If a notice for the system of records has not been 
published in the Federal Register, the contracting officer may proceed 
with the acquisition but shall not award the contract until the system 
notice is published and the contracting officer verifies its 
publication.



324.104  Restrictions on Contractor Access to Government or
Third Party Information.

    The contracting officer shall establish the restrictions that govern 
the contractor employees' access to Government or third party 
information in order to protect the information from unauthorized use or 
disclosure.



324.105  Contract clauses.

    (a) The contracting officer shall insert the clause at 352.224-70, 
Privacy Act, in solicitations, contracts, and orders that require the 
design, development, or operation of a system of records to notify the 
contractor that it and its employees are subject to criminal penalties 
for violations of the Privacy Act (5 U.S.C. 552a(i)) to the same

[[Page 25]]

extent as HHS employees. The clause also requires the contractor to 
ensure each of its employees knows the prescribed rules of conduct in 45 
CFR part 5b and each contractor employee is aware that he or she is 
subject to criminal penalties for violations of the Privacy Act. These 
requirements also apply to all subcontracts awarded under the contract 
or order that require the design, development, or operation of a system 
of records.
    (b) The contracting officer shall insert the clause at 352.224-71, 
Confidential Information, in solicitations, contracts, and orders that 
require access to Government or to third party information.



 Subpart 324.70_Health Insurance Portability and Accountability Act of 
                                  1996



324.7000  Scope of subpart.

    All individually identifiable health information that is Protected 
Health Information (PHI), as defined in 45 CFR 160.103 shall be 
administered in accordance with the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA) implementing regulations at 45 CFR 
parts 160 and 164 (the HIPAA Privacy, Security, and Breach Notification 
Rules). The term ``HIPAA'' is used in this part to refer to title II, 
subtitle F of the HIPAA statute, at part C of title XI of the Social 
Security Act, 42 U.S.C. 1320d et seq., section 264 of HIPAA, subtitle D 
of title XIII of the American Recovery and Reinvestment Act of 2009, and 
regulations under such provisions.



324.7001  Policy on Compliance with HIPAA business associate contract
requirements.

    (a) HHS is a HIPAA ``covered entity'' that is a ``hybrid entity'' as 
these terms are defined at sections 160.103 and 164.103 respectively. As 
such, only the portions of HHS that the Secretary has designated as 
``health care components'' (HCC) as defined at section 164.103, are 
subject to HIPAA. HHS' HCCs may utilize persons or entities known as 
``business associates,'' as defined at section 160.103. Generally, 
``business associate'' means a ``person'' as defined by section 160.103 
(including contractors, and third-party vendors, etc.) if or when the 
person or entity:
    (1) Creates, receives, maintains, or transmits ``protected health 
information'', as the term is defined at section 160.103, on behalf of 
an HHS HCC to carry out HHS HIPAA ``covered functions'' as that term is 
defined at 164.103; or
    (2) Provides certain services to an HHS HCC that involve PHI.
    (b) Where the Department as a covered entity is required by 45 CFR 
164.502(e)(1) and 164.504(e) and, if applicable, sections 164.308(b)(3) 
and 164.314(a), to enter into a HIPAA business associate contract, the 
relevant HCC contracting officer, acting on behalf of the Department, 
shall ensure that such contract meets the requirements at section 
164.504(e)(2) and, if applicable, section 164.314(a)(2).



PART 326_OTHER SOCIOECONOMIC PROGRAMS--Table of Contents



      Subpart 326.5_Indian Preference in Employment, Training, and 
                      Subcontracting Opportunities

Sec.
326.501  Statutory requirements.
326.502  Definitions.
326.503  Compliance enforcement.
326.504  Tribal Preference requirement.
326.505  Applicability.

           Subpart 326.6_Acquisitions Under the Buy Indian Act

326.600  Scope of subpart.
326.601  Policy.
326.602  Definitions.
326.603  Requirements.
326.604  Competition.
326.605  Responsibility determinations.

    Subpart 326.7_Acquisitions Requiring the Native American Graves 
                     Protection and Repatriation Act

326.700  Scope of subpart.
326.701  Applicability.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.

[[Page 26]]



      Subpart 326.5_Indian Preference in Employment, Training, and 
                      Subcontracting Opportunities



326.501  Statutory requirements.

    Any contract or subcontract pursuant to subchapter II, chapter 14, 
title 25 of the United States Code, the Act of April 16, 1934 (48 Stat. 
596), as amended, or any other Act authorizing Federal contracts with or 
grants to Indian organizations or for the benefit of Indians, shall, to 
the greatest extent feasible, comply with section 7(b) of the Indian 
Self-Determination and Education Assistance Act, Public Law 93-638, 88 
Stat. 2205, 25 U.S.C. 450e(b) which provides preferences and 
opportunities for training and employment in connection with the 
administration of such contracts, and preference in the award of 
subcontracts in connection with the administration of such contracts to 
Indian organizations and to Indian-owned economic enterprises as defined 
in section 1452 of title 25, United States Code.



326.502  Definitions.

    For purposes of this subpart, the following definitions shall apply:
    (a) Indian means a person who is a member of an Indian tribe. If the 
contractor has reason to doubt that a person seeking employment 
preference is an Indian, the contractor shall grant the preference but 
shall require the individual provide evidence within 30 days from the 
tribe concerned that the person is a member of the tribe.
    (b) Indian tribe means an Indian tribe, pueblo, band, nation, or 
other organized group or community, including any Alaska Native Village 
or regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 
1601), which the United States recognizes as eligible for special 
programs and services because of its status as Indian.
    (c) Indian organization means the governing body of any Indian 
tribe, or entity established or recognized by such governing body, in 
accordance with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C. 
1451).
    (d) Indian-owned economic enterprise means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of profit, provided that such Indian ownership shall 
constitute not less than 51 percent of the enterprise, and the ownership 
shall encompass active operation and control of the enterprise.
    (e) Indian reservation includes Indian reservations, public domain 
Indian allotments, former Indian reservations in Oklahoma, and land held 
by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (85 Stat. 688, 43 U.S.C. 1601 et seq.).
    (f) On or near an Indian reservation means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably commute to and from 
in the course of a work day.



326.503  Compliance enforcement.

    The contracting officer shall promptly investigate and resolve 
written complaints of noncompliance with the requirements of the clauses 
at 352.226-1, Indian Preference and 352.226-2, Indian Preference Program 
filed with the contracting activity.



326.504  Tribal preference requirements.

    (a) When the contractor will perform work under a contract on an 
Indian reservation, the contracting officer may supplement the clause at 
352.226-2, Indian Preference Program by adding specific Indian 
preference requirements of the tribe on whose reservation the contractor 
will work. The contracting activity and the tribe shall jointly develop 
supplemental requirements for the contract. Supplemental preference 
requirements shall represent a further implementation of the 
requirements of section 7(b) of Public Law 93-638 and require the 
approval of the affected program director and the appropriate legal 
office, or a regional attorney, before the contracting officer adds them 
to a solicitation and resultant contract. Any supplemental preference 
requirements the contracting officer adds to the clause at 352.226-2, 
Indian Preference Program shall also clearly

[[Page 27]]

identify in the solicitation the additional requirements.
    (b) Nothing in this part shall preclude tribes from independently 
developing and enforcing their own tribal preference requirements. Such 
independently-developed tribal preference requirements shall not, except 
as provided in paragraph (a) of this section, become a requirement in 
contracts covered under this subpart, and shall not conflict with any 
Federal statutory or regulatory requirement concerning the award and 
administration of contracts.



326.505  Applicability.

    The contracting officer shall insert the clause at 352.226-1, Indian 
Preference, and the clause at 352.226-2, Indian Preference Program, in 
contracts to implement section 7(b) of Public Law 93-638 for all 
Department of Health and Human Services (HHS) activities. Contracting 
activities shall use the clauses as follows, except for those exempted 
solicitations and contracts issued and or awarded pursuant to Title I of 
Public Law 93-638 (25 U.S.C. 450 et seq.):
    (a) The contracting officer shall insert the clause at 352.226-1, 
Indian Preference, in solicitations, contracts, and orders when--
    (1) The award is (or will be) pursuant to an act specifically 
authorizing such awards with Indian organizations; or
    (2) The work is specifically for the benefit of Indians and is in 
addition to any incidental benefits which might otherwise accrue to the 
general public.
    (b) The contracting officer shall insert the clause at 352.226-2, 
Indian Preference Program, in solicitations, contracts, and orders 
when--
    (1) The dollar amount of the acquisition is expected to equal or 
exceed $650,000 for non-construction work or $1.5 million for 
construction work;
    (2) The solicitation, contract, or order includes the Indian 
Preference clause; and
    (3) The contracting officer makes the determination, prior to 
solicitation, that performance will take place in whole or in 
substantial part on or near an Indian reservation(s). In addition, the 
contracting officer may insert the Indian Preference Program clause in 
solicitations, contracts, and orders below the $650,000 or $1.5 million 
level for non-construction or construction contracts, respectively, but 
which meet the requirements of paragraphs (b)(2) and (3) of this 
section, and in the opinion of the contracting officer, offer 
substantial opportunities for Indian employment, training, and 
subcontracting.



           Subpart 326.6_Acquisitions Under the Buy Indian Act



326.600  Scope of subpart.

    This subpart sets forth the policy on preferential acquisition from 
Indians under the negotiation authority of the Buy Indian Act. This 
subpart applies only to acquisitions made by or on behalf of Indian 
Health Service (IHS).



326.601  Policy.

    (a) IHS shall utilize the negotiation authority of the Buy Indian 
Act to give preference to Indians whenever authorized and practicable. 
The Buy Indian Act, 25 U.S.C. 47, prescribes the application of the 
advertising requirements of 41 U.S.C. 6101 to the acquisition of Indian 
supplies. As specified in 25 U.S.C. 47, the Buy Indian Act provides 
that, so far as practicable, the Government shall employ Indian labor 
and, at the discretion of the Secretary of the Interior, purchase 
products of Indian industry (including, but not limited to printing, 
notwithstanding any other law) from the open market.
    (b) Due to the transfer of authority from the Department of the 
Interior to HHS, the Secretary of HHS may use the Buy Indian Act to 
acquire products of Indian industry in connection with the maintenance 
and operation of Indian hospital and health facilities, and for the 
overall conservation of Indian health. This authority is exclusively 
delegated to IHS and is not available for use by any other HHS component 
(unless that component makes an acquisition on behalf of IHS). However, 
the Buy Indian Act itself does not exempt IHS from meeting the 
statutorily mandated small business goals.
    (c) Subsequent legislation, particularly Public Law 94-437 and 
Public Law 96-537, emphasize using the Buy Indian Act negotiation 
authority.

[[Page 28]]



326.602  Definitions.

    (a) Buy Indian contract means any contract involving activities 
covered by the Buy Indian Act and negotiated under the provisions of 41 
U.S.C. 3104 and 25 U.S.C. 47 between an Indian firm and a contracting 
officer representing IHS.
    (b) Indian means a member of any tribe, pueblo, band, group, 
village, or community recognized by the Secretary of the Interior as 
being Indian or any individual or group of individuals recognized by the 
Secretary of the Interior or the Secretary of HHS. The Secretary of HHS 
in making determinations may take into account the determination of the 
tribe with which affiliation is claimed.
    (c) Indian firm means a sole enterprise, partnership, corporation, 
or other type of business organization owned, controlled, and operated 
by:
    (1) One or more Indians (including, for the purpose of sections 301 
and 302 of Public Law 94-437, former or currently federally recognized 
Indian tribes in the State of New York); or
    (2) By an Indian firm (as defined in paragraph (1) of this 
definition); or
    (3) A nonprofit firm organized for the benefit of Indians and 
controlled by Indians (see 326.601(a)).
    (d) Product of Indian industry means anything produced by Indians 
through either physical labor or intellectual effort involving the use 
and application of their skills. To classify as a product of Indian 
industry, the total cost of the item's production must equal or exceed 
51 percent Indian effort.



326.603  Requirements.

    (a) Indian ownership. Indian ownership shall constitute at least 51 
percent of an Indian firm during the period covered by a Buy Indian 
contract.
    (b) Joint ventures. An Indian firm may enter into a joint venture 
with other entities for specific projects as long as the Indian firm is 
the managing partner. However, the contracting officer shall approve the 
joint venture prior to the award of a contract under the Buy Indian Act.
    (c) Bonds. In the case of contracts for the construction, 
alteration, or repair of public buildings or public works, the Miller 
Act (40 U.S.C. 3131 et seq.) and Federal Acquisition Regulation (FAR) 
part 28 require performance and payment bonds. Bonds are not required in 
the case of contracts with Indian tribes or public nonprofit 
organizations serving as governmental instrumentalities of an Indian 
tribe. However, bonds are required when dealing with private business 
entities owned by an Indian tribe or members of an Indian tribe. The 
contracting officer may require bonds of private business entities that 
are joint ventures with, or subcontractors of, an Indian tribe or a 
public nonprofit organization serving as a governmental instrumentality 
of an Indian tribe. A bid guarantee or bid bond is required only when a 
performance or payment bond is required.
    (d) Indian preference in employment, training and subcontracting. 
Contracts awarded under the Buy Indian Act are subject to the 
requirements of section 7(b) of the Indian Self-Determination and 
Education Assistance Act 25 U.S.C. 450e, which requires giving 
preference to Indians in employment, training, and subcontracting. The 
contracting officer shall include the Indian Preference clause specified 
at 326.505(a) in all Buy Indian solicitations and resultant contracts. 
The contracting officer shall use the Indian Preference Program clause 
specified at 326.505(b). The contracting officer shall follow all 
requirements specified in subpart 326.2 which apply to a Buy Indian 
acquisition (e.g., 326.604 and 326.605).
    (e) Subcontracting. A contractor shall not subcontract more than 50 
percent of the work under a prime contract awarded pursuant to the Buy 
Indian Act to non-Indian firms. For this purpose, contract work does not 
include the provision of materials, supplies, or equipment.
    (f) Wage rates. The contracting officer shall include a 
determination of the minimum wage rates by the Secretary of Labor as 
required by the Davis-Bacon Act (40 U.S.C. 276a) in all contracts 
awarded under the Buy Indian Act for over $2,000 for construction, 
alteration, or repair, including painting and decorating, of public 
buildings and public works, except contracts with Indian tribes or 
public nonprofit organizations serving as governmental instrumentalities 
of an Indian tribe.

[[Page 29]]

    The contracting officer shall include the wage rate determination in 
contracts with private business entities, even when owned by an Indian 
tribe or a member of an Indian tribe and in connection with joint 
ventures with, or subcontractors of, an Indian tribe or a public 
nonprofit organization serving as a governmental instrumentality of an 
Indian tribe.



326.604  Competition.

    (a) Contracts awarded under the Buy Indian Act are subject to 
competition among Indians or Indian firms to the maximum extent 
practicable. When the contracting officer determines that competition is 
not practicable, a justification and approval is required in accordance 
with subpart 306.3.
    (b) The contracting officer shall: Synopsize and publicize 
solicitations in the Government point of entry and provide copies of the 
synopses to the tribal office of the Indian tribal government directly 
concerned with the proposed acquisition as well as to Indian firms and 
others having a legitimate interest. The synopses shall state that the 
acquisitions are restricted to Indian firms under the Buy Indian Act.



326.605  Responsibility determinations.

    (a) The contracting officer may award a contract under the Buy 
Indian Act only if it is determined that the contractor will likely 
perform satisfactorily and properly complete or maintain the contracted 
project or function.
    (b) The contracting officer shall make the written determination 
specified in paragraph (a) of this section prior to the award of a 
contract. The determination shall reflect an analysis of FAR 9.104-1 
standards.



    Subpart 326.7_Acquisitions Requiring the Native American Graves 
                     Protection and Repatriation Act



326.700  Scope of subpart.

    Public Law 101-601, dated November 16, 1990, also known as the 
Native American Graves Protection and Repatriation Act, imposes certain 
responsibilities on individuals and organizations when they discover 
Native American cultural items (including human remains) on Federal or 
tribal lands.



326.701  Applicability.

    The contracting officer shall insert the clause at 352.226-3, Native 
American Graves Protection and Repatriation Act, in solicitations, 
contracts, and orders requiring performance on tribal lands or those for 
construction projects on Federal or tribal lands.

[[Page 30]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





PART 327_PATENTS, DATA, AND COPYRIGHTS--Table of Contents



         Subpart 327.3_Patent Rights Under Government Contracts

Sec.
327.303  Solicitation provision and contract clause.

               Subpart 327.4_Rights in Data and Copyrights

327.404-70  Solicitation provision and contract clause.
327.409  Solicitation provision and contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



         Subpart 327.3_Patent Rights Under Government Contracts



327.303  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 352.227-11, 
Patent Rights--Exceptional Circumstances and any appropriate alternates 
in lieu of Federal Acquisition Regulation (FAR) 52.227-11 whenever a 
Determination of Exceptional Circumstances (DEC) involving the provision 
of materials that has been executed in accordance with Agency policy and 
procedures calls for its use and the clause at 352.227-11, Patent 
Rights--Exceptional Circumstances, appropriately covers the 
circumstances. The contracting officer should reference the DEC in the 
solicitation and shall attach a copy of the executed DEC to the 
contract.



               Subpart 327.4_Rights in Data and Copyrights



327.404-70  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 352.227-70, 
Publications and Publicity, in solicitations, contracts, and orders that 
involve requirements which could lead to the contractor's publishing the 
results of its work under the contract.



327.409  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 352.227-14, 
Rights in Data--Exceptional Circumstances, and any appropriate 
alternates in lieu of the FAR clause at 52.227-14, Rights in Data-
General, whenever a DEC executed in accordance with Agency policy and 
procedures calls for its use. Prior to using this clause, a DEC must be 
executed in accordance with Agency policy and procedures. The 
contracting officer should reference the DEC in the solicitation and 
shall attach a copy of the executed DEC to the contract.

                           PART 328 [RESERVED]



PART 330_COST ACCOUNTING STANDARDS--Table of Contents



                 Subpart 330.2_CAS Program Requirements

Sec.
330.201  Contract requirements.
330.201-5  Waiver.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                 Subpart 330.2_CAS Program Requirements



330.201  Contract requirements.



330.201-5  Waiver.

    The Senior Procurement Executive (SPE) shall exercise the waiver 
authority under Federal Acquisition Regulation 30.201-5(a)(2). Operating 
Divisions and Staff Divisions shall forward waiver requests to the SPE.



PART 331_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.

[[Page 31]]



                       Subpart 331.1_Applicability



331.101-70  Salary rate limitation.

    (a) Beginning in fiscal year 1990, Congress has stipulated in the 
Department of Health and Human Services appropriations acts and 
continuing resolutions that, under applicable contracts, appropriated 
funds cannot be used to pay the direct salary of an individual above the 
stipulated rates. The applicable rates for each year are identified at 
www.opm.gov.
    (b) The contracting officer shall insert the clause at 352.231-70, 
Salary Rate Limitation, in solicitations and contracts when a cost-
reimbursement; fixed-price level-of-effort; time-and-materials; or 
labor-hour contract is contemplated.



PART 332_CONTRACT FINANCING--Table of Contents



         Subpart 332.4_Advance Payments for Non-Commercial Items

Sec.
332.402  General.
332.407  Interest.

              Subpart 332.5_Progress Payments Based on Cost

332.501  General.
332.501-2  Unusual progress payments.

                     Subpart 332.7_Contract Funding

332.702  Policy.
332.703  Contract funding requirements.
332.703-1  General.
332.703-71  Incrementally funded cost-reimbursement contracts.
332.703-72  Incremental Funding Table.
332.706  Solicitation provision and contract clauses.
332.706-2  Provision and clauses for limitation of cost or funds.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



         Subpart 332.4_Advance Payments for Non-Commercial Items



332.402  General.

    (e) The head of the contracting activity (HCA) (non-delegable) shall 
make determinations related to advanced payments and assure compliance 
with FAR 32.402.



332.407  Interest.

    (d) The HCA (non-delegable) shall make the determinations in FAR 
32.407(d).



              Subpart 332.5_Progress Payments Based on Cost



332.501  General.



332.501-2  Unusual progress payments.

    (a)(3) The HCA (non-delegable) shall approve unusual progress 
payments.



                     Subpart 332.7_Contract Funding



332.702  Policy.

    Departmental employees shall report any suspected violation of the 
Anti-Deficiency Act (31 U.S.C. 1341, 13 U.S.C. 1342, and 31 U.S.C. 1517) 
immediately to the Operating Division's Chief Financial Officer (CFO), 
who in turn will report the matter to the HHS Deputy CFO.



332.703  Contract funding requirements.



332.703-1  General.

    (b) The following requirements govern all solicitations and 
contracts using incremental funding, as appropriate:
    (1) The contracting officer shall consider the estimated total cost 
of the contract, including all planned increments of performance when 
determining the requirements that must be met before contract execution 
(e.g., Justification and Approvals, clearances, and approvals).
    (2) The solicitation and resultant contract shall include a 
statement of work or performance work statement that describes the total 
project, covers all proposed increments of performance, and contains a 
schedule of planned increments of performance. No funding increment may 
exceed 1 year, and the services rendered during each increment of 
performance must provide a specific material benefit that can stand 
alone if the remaining effort is not funded. The resultant contract 
shall also include the corresponding

[[Page 32]]

amount of funds planned for obligation for each increment of 
performance.
    (3) The contracting officer shall request that offerors respond to 
the solicitation with technical and cost proposals for the entire 
project, and shall require distinct technical and cost break-outs of the 
planned increments of performance.
    (4) Proposals shall be evaluated and any discussions and 
negotiations shall be conducted based upon the total project, including 
all planned increments of performance.



332.703-71  Incrementally funded cost-reimbursement contracts.

    Incremental funding may be used in cost-reimbursement contracts for 
severable services only when all of the following circumstances are 
present:
    (a) Funding of increments after the initial increment of performance 
is provided from the appropriation account available for obligation at 
that time;
    (b) The project represents a bona fide need of the fiscal year in 
which the contract is awarded and initially funded (i.e., the initial 
increment of performance) and is also a bona fide need of each 
subsequent fiscal year whose appropriation will be used; and
    (c) The project's significance provides reasonable assurance that 
subsequent year appropriations will be made available to fund the 
project's continuation and completion.



332.703-72  Incremental Funding Table.

    (a) The contracting officer shall insert substantially the following 
language in Section B: Supplies or Services and Prices or Costs, Table 
1, in all cost-reimbursement contracts for severable services using 
incremental funding. The language requires the contracting officer to:
    (1) Insert the initial funding obligated by the award;
    (2) Identify the increment of performance covered by the funding 
provided; and
    (3) Specify the start and end dates for each increment of 
performance, as required by the ``Limitation of Funds'' clause at FAR 
52.232-22.
    (b) Modification of the language is permitted to fit specific 
circumstances of the contract, including but not limited to language 
necessary to reflect the specific type of cost reimbursement contract 
awarded, but the language may not be omitted completely.

       Table 1--B. __Estimated Cost--Incrementally Funded Contract

    (a) The total estimated cost to the Government for full performance 
of this contract, including all allowable direct and indirect costs, is 
$__ [insert full amount].
    (b) The following represents the schedule* by which the Government 
expects to allot funds to this contract:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Start date of                                                                             Estimated cost plus
 CLIN, task number, or description        increment of        End date of increment    Estimated cost ($)        Fee ($) (as            fee ($) (as
                                           performance           of performance                                  appropriate)           appropriate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     ......................  ......................  .....................
                                    --------------------------------------------------------------------------------------------------------------------
                                     ......................  ......................  .....................
                                    --------------------------------------------------------------------------------------------------------------------
                                     ......................  ......................  .....................
                                    --------------------------------------------------------------------------------------------------------------------
                                     ......................  ......................  .....................
                                    --------------------------------------------------------------------------------------------------------------------
                                     ......................  ......................  .....................
                                    --------------------------------------------------------------------------------------------------------------------
                                     ......................  ......................  [Total]..............  [Total]..............  [Total]
--------------------------------------------------------------------------------------------------------------------------------------------------------

    * To be inserted after negotiation
    (c) Total funds currently obligated and available for payment under 
this contract are $__ [insert amount funded to date].
    (d) The contracting officer may issue unilateral modifications to 
obligate additional funds to the contract and make related changes to 
paragraphs (b) and/or (c) above.

[[Page 33]]

    (e) Until this contract is fully funded, the requirements of the 
clause at FAR 52.232-22, Limitation of Funds, shall govern. Once the 
contract is fully funded, the requirements of the clause at FAR 52.232-
20, Limitation of Cost, govern.



332.706  Solicitation provision and contract clauses.



332.706-2  Provision and clauses for limitation of cost or funds.

    (b) In addition to the clause at FAR 52.232-22, Limitation of Funds, 
the contracting officer shall insert the provision at 352.232-70, 
Incremental Funding, in all solicitations when a cost-reimbursement 
contract for severable services using incremental funding is 
contemplated. The provision requires the contracting officer to insert a 
specific increment of performance that the initial funding is expected 
to cover.



PART 333_PROTESTS, DISPUTES, AND APPEALS--Table of Contents



                         Subpart 333.1_Protests

Sec.
333.102  General.
333.103  Protests to the agency.

                   Subpart 333.2_Disputes and Appeals

333.203  Applicability.
333.209  Suspected fraudulent claims.
333.215-70  Contract clauses.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                         Subpart 333.1_Protests



333.102  General.

    (g)(1) The Office of General Counsel-General Law Division serves as 
the liaison for protests lodged with the Government Accountability 
Office (GAO); is designated as the office responsible for all protests 
within the Department of Health and Human Services; and serves as the 
notification point with GAO for all protests.
    (2) The contracting officer will follow the direction of the 
Operating Division's protest control officer for responding to protests 
whether they are filed with GAO or directly with the contracting 
officer.



333.103  Protests to the agency.

    (f)(1) Protests to the contracting officer must be in writing. The 
contracting officer is authorized to make the determination, using the 
criteria in Federal Acquisition Regulation 33.104(b), to award a 
contract notwithstanding the protest after obtaining the concurrence of 
the contracting activity's protest control officer and consulting with 
the appropriate legal office.



                   Subpart 333.2_Disputes and Appeals



333.203  Applicability.

    (c) The Civilian Board of Contract Appeals is the authorized 
``Board'' to hear and determine disputes for the Department.



333.209  Suspected fraudulent claims.

    The contracting officer shall submit any instance of a contractor's 
suspected fraudulent claim to the Office of Inspector General for 
investigation.



333.215-70  Contract clauses.

    (a) The contracting officer shall insert the clause at 352.233-70, 
Choice of Law (Overseas), in solicitations and contracts when 
performance will be outside the United States, its possessions, and 
Puerto Rico, except as otherwise provided in a government-to-government 
agreement.
    (b) The contracting officer shall insert the clause at 352.233-71, 
Litigation and Claims, in solicitations and contracts when a cost-
reimbursement, time-and-materials, or labor-hour contract is 
contemplated (other than a contract for a commercial item).

[[Page 34]]



             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING





PART 334_MAJOR SYSTEM ACQUISITION--Table of Contents



              Subpart 334.2_Earned Value Management System

Sec.
334.201  Policy.
334.202  Integrated Baseline Reviews (IBRs).

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



              Subpart 334.2_Earned Value Management System



334.201  Policy.

    The Department of Health and Human Services applies the earned value 
management system requirement as follows:
    (a) For cost or incentive contracts and subcontracts valued at $20 
million or more, the contractor's earned value management system shall 
comply with the guidelines in the American National Standards Institute/
Electronic Industries Alliance Standard 748, Earned Value Management 
Systems (ANSI/EIA-748).
    (b) For cost or incentive contracts and subcontracts valued at $50 
million or more, the contractor shall have an earned value management 
system that has been determined by the cognizant Federal agency to be in 
compliance with the guidelines in ANSI/EIA-748.
    (c) For cost or incentive contracts and subcontracts valued at less 
than $20 million--
    (1) The application of earned value management is optional at the 
discretion of the program/project manager and is a risk-based decision 
that must be supported by a cost/benefit analysis; and
    (2) A decision to apply earned value management shall be documented 
in the contract file.
    (d) For firm-fixed-price contracts and subcontracts of any dollar 
value the application of earned value management is discouraged.



334.202  Integrated Baseline Reviews (IBRs).

    (a) An IBR normally should be conducted as a post-award activity. A 
pre-award IBR may be conducted only if--
    (1) The acquisition plan contains documentation that demonstrates 
the need and rationale for a pre-award IBR, including an assessment of 
the impact on the source selection schedule and the expected benefits;
    (2) The use of a pre-award IBR is approved in writing by the head of 
the contracting activity prior to the issuance of the solicitation;
    (3) The source selection plan and solicitation specifically 
addresses how the results of a pre-award IBR will be used during source 
selection, including any weight to be given to it in source evaluation; 
and
    (4) Specific arrangements are made, and budget authority is 
provided, to compensate all offerors who prepare for or participate in a 
pre-award IBR; and the solicitation informs prospective offerors of the 
means for and conditions of such compensation.



PART 335_RESEARCH AND DEVELOPMENT CONTRACTING--Table of Contents



Sec.
335.070  Cost-sharing.
335.070-1  Policy.
335.070-2  Amount of cost-sharing.
335.070-3  Method of cost-sharing.
335.071  [Reserved]
335.072  Key personnel.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



335.070  Cost-sharing.



335.070-1  Policy.

    (a) Contracting activities should encourage contractors to 
contribute to the cost of performing research and development (R&D), 
through the use of cost-sharing contracts, where there is a probability 
that the contractor will receive present or future benefits from 
participation as described in Federal Acquisition Regulation (FAR) 
16.303.

[[Page 35]]

Examples include increased technical know-how, training for employees, 
acquisition of goods or services, development of a commercially viable 
product that can be sold in the commercial market and use of background 
knowledge in future contracts. Cost-sharing is intended to serve the 
mutual interests of the Government and its contractors by helping to 
ensure efficient utilization of the resources available for the conduct 
of R&D projects and by promoting sound planning and prudent fiscal 
policies of the contractor. The Government's interest includes positive 
impact on the community at large.
    (b) The contracting officer should use a cost-sharing contract for 
R&D contracts, unless the contracting officer determines that a request 
for cost-sharing would not be appropriate.
    (c) Any determination made by a contracting officer as described in 
this section shall be evidenced by appropriate documentation in the 
contract file.



335.070-2  Amount of cost-sharing.

    When cost-sharing is appropriate, the contracting officer shall use 
the following guidelines to determine the amount of cost participation 
by the contractor:
    (a) The amount of cost participation depends on the extent to which 
the R&D effort or results are likely to enhance the contractor's 
capability, expertise, or competitive position, and the value of this 
enhancement to the contractor. Therefore, contractor cost participation 
could reasonably range from as little as one percent or less of the 
total project cost to more than 50 percent of the total project cost. 
Ultimately, cost-sharing is a negotiable item. As such, the amount of 
cost-sharing shall be proportional to the anticipated value of the 
contractor's gain.
    (b) If the contractor will not acquire title to, or the right to 
use, inventions, patents, or technical information resulting from the 
R&D project, it is normally appropriate to obtain less cost-sharing than 
in cases in which the contractor acquires these rights.
    (c) If the R&D is expected to be of only minor value to the 
contractor, and if a statute does not require cost-sharing, it may be 
appropriate for the contractor to make a contribution in the form of a 
reduced fee or profit rather than sharing costs of the project. 
Alternatively, a limitation on indirect cost rates might be appropriate. 
See FAR 42.707. See also, FAR 16.303.
    (d) The contractor's participation may be considered over the total 
term of the project, so that a relatively high contribution in 1 year 
may be offset by a relatively low contribution in another. Care must be 
exercised that the intent to cost-share in future years does not become 
illusory. Redetermination of the cost sharing arrangement might be 
appropriate depending on future circumstances.
    (e) A relatively low degree of cost-sharing may be appropriate if an 
area of R&D requires special stimulus in the national interest.



335.070-3  Method of cost-sharing.

    Cost-sharing on individual contracts may be accomplished either by a 
contribution of part or all of one or more elements of allowable cost of 
the work being performed or by a fixed amount or stated percentage of 
the total allowable costs of the project. Contractors shall not charge 
costs contributed to the Government under any other instrument (e.g., 
grant or contract), including allocations to other instruments as part 
of any independent R&D program.



335.071  [Reserved]



335.072  Key personnel.

    If the contracting officer determines that the personnel to be 
assigned to perform effort on an R&D contract are critical to the 
success of the R&D effort, or were a critical factor in the award of the 
contract, then the contracting officer should consider using the key 
personnel clause at 352.237-75, Key Personnel.



PART 336_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--Table of Contents



                          Subpart 336.1_General

Sec.
336.104  Policy.

[[Page 36]]

                      Subpart 336.5_Contract Clause

336.570  Contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                          Subpart 336.1_General



336.104  Policy.

    Contracting officers shall follow the policies described in Federal 
Acquisition Regulation 36.104 and the guidance promulgated by the 
Department of Health and Human Services Facilities Management.



                      Subpart 336.5_Contract Clause



336.570  Contract clause.

    (a) The contracting officer shall insert the clause at 352.236-70, 
Design-Build Contracts, in all solicitations and contracts for all 
design-build requirements.
    (b) The contracting officer shall use Alternate I to the clause at 
352.236-70, Design-Build Contracts, in all solicitations and contracts 
for construction when Fast-Track procedures are being used.
    (c) Due to the importance of maintaining consistency in the 
contractor's personnel during design-build construction, the contracting 
officer should consider including the clause at 352.237-75, Key 
personnel.



PART 337_SERVICE CONTRACTING_GENERAL--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                 Subpart 337.1_Service Contracts_General



337.103  Contracting officer responsibility.

    (d)(1) The contracting officer shall insert the clause at 352.237-
70, Pro-Children Act, in solicitations, contracts, and orders that 
involve:
    (i) Kindergarten, elementary, or secondary education or library 
services; or
    (ii) Health or daycare services that are provided to children under 
the age of 18 on a routine or regular basis pursuant to the Pro-Children 
Act of 1994 (20 U.S.C. 6081-6084).
    (2) The contracting officer shall insert the clause at 352.237-71, 
Crime Control Act--Reporting of Child Abuse, in solicitations, 
contracts, and orders that require performance on Federal land or in a 
federally operated (or contracted) facility and involve the professions/
activities performed by persons specified in the Crime Control Act of 
1990 (42 U.S.C. 13031) including, but not limited to, teachers, social 
workers, physicians, nurses, dentists, health care practitioners, 
optometrists, psychologists, emergency medical technicians, alcohol or 
drug treatment personnel, child care workers and administrators, 
emergency medical technicians and ambulance drivers.
    (3) The contracting officer shall insert the clause at 352.237-72, 
Crime Control Act--Requirement for Background Checks, in solicitations, 
contracts, and orders that involve providing child care services to 
children under the age of 18, including social services, health and 
mental health care, child- (day) care, education (whether or not 
directly involved in teaching), and rehabilitative programs covered 
under the Crime Control Act of 1990 (42 U.S.C. 13041).
    (4) Contracting officers supporting the Indian Health Service shall 
insert the clause at 352.237-73, Indian Child Protection and Family 
Violence Act in all solicitations, contracts, and orders when 
performance of the contract may involve regular contact with or control 
over Indian children. The required declaration shall also be included in 
Section J of the solicitation and contract.
    (e) The contracting officer shall insert the clause at 352.237-74, 
Non-Discrimination in Service Delivery, in solicitations, contracts, and 
orders to deliver services under HHS' programs directly to the public.
    (f) The contracting officer shall insert the clause at 352.237-75, 
Key Personnel, in solicitations and contracts when the contracting 
officer will require the contractor to designate contractor key 
personnel.

[[Page 37]]



PART 339_ACQUISITION OF INFORMATION TECHNOLOGY--Table of Contents



                          Subpart 339.1_General

Sec.
339.101  Policy.

           Subpart 339.2_Electronic and Information Technology

339.203  Applicability.
339.203-70  Contract clauses for electronic and information technology 
          (EIT) acquisitions.
339.204  Exceptions.
339.204-1  Approval of exceptions.
339.205  Section 508 accessibility standards for contracts.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                          Subpart 339.1_General



339.101  Policy

    In addition to the regulatory guidance in Federal Acquisition 
Regulation part 39, contracting officers shall collaborate with the 
requiring activity to ensure information technology (IT) acquisitions 
for supplies, services, and systems meet the requirements established by 
the Department of Health and Human Services (HHS).



           Subpart 339.2_Electronic and Information Technology



339.203  Applicability.

    (a) Electronic and information technology (EIT) supplies and 
services must comply with Section 508 of the Rehabilitation Act (the 
Act) of 1973 (29 U.S.C. 794d), as amended by the Workforce Investment 
Act of 1998, and the Architectural and Transportation Barriers 
Compliance Board (Access Board) Electronic and Information Accessibility 
Standards (36 CFR part 1194). Requiring activities must consult with 
their Section 508 Official or designee to determine if the contractor 
should be responsible for compliance with EIT accessibility standards 
which apply to Web site content and communications material.
    (1) When conducting a procurement and employing the best value 
continuum, the solicitation shall include a separate technical 
evaluation factor developed by the contracting officer, requiring 
activity, and the Operating Division (OPDIV) Section 508 Official or 
designee.
    (2) At a minimum, solicitations for supplies and services shall 
require the submission of a Section 508 Product Assessment Template (See 
http://www.hhs.gov/web/508 for the template). Solicitations for services 
shall include any other pertinent information that the contracting 
officer deems necessary to evaluate the offeror's ability to meet the 
applicable Section 508 accessibility standards.
    (3) The HHS Operating Division or Staff Division (OPDIV or STAFFDIV) 
Section 508 Official or designee is responsible for providing technical 
assistance in development of Section 508 evaluation factors.
    (4) Before conducting negotiations or making an award, the 
contracting officer shall provide a summary of the Source Selection 
Evaluation Team's (SSET) assessment of offeror responses to the 
solicitation's Section 508 evaluation factor. This summary shall be 
submitted for review by the Section 508 Official or designee. The 
Section 508 Official or designee shall indicate approval or disapproval 
of the SSET assessment. The contracting officer shall coordinate the 
resolution of any issues raised by the Section 508 Official or designee 
with the chair of the SSET or requiring activity representative, as 
appropriate. The acquisition process shall not proceed until the Section 
508 Official or designee approves the SSET assessment. The contracting 
officer shall include the assessment in the official contract file. See 
339.204-1 regarding processing exception determination requests.
    (b) When acquiring commercial items, if no commercially available 
supplies or services meet all of the applicable Section 508 
accessibility standards, OPDIVs or STAFFDIVs shall, under the direction 
and approval of the Section 508 Official or designee, acquire the 
supplies and services that best meet the applicable Section 508 
accessibility standards. Process exception determinations for EIT 
supplies and

[[Page 38]]

services not meeting applicable Section 508 accessibility standards in 
accordance with 339.204-1.



339.203-70  Contract clauses for electronic and information technology
(EIT) acquisitions.

    (a) The contracting officer shall insert the provision at 352.239-
73, Electronic and Information Technology Accessibility Notice, in all 
solicitations.
    (b) The contracting officer shall insert the clause at 352.239-74, 
Electronic and Information Technology Accessibility, in all contracts 
and orders.



339.204  Exceptions.



339.204-1  Approval of exceptions.

    (a) Procedures to document exception and determination requests are 
set by the OPDIV Section 508 Official.
    (b) In the development of an acquisition plan (AP) or other 
acquisition request document, the contracting officer shall ensure that 
all Section 508 exception determination requests for applicable EIT 
requirements are:
    (1) Documented and certified in accordance with the requirements of 
the HHS Section 508 policy;
    (2) Signed by the requestor in the requiring activity;
    (3) Certified and approved by the OPDIV Section 508 Official or 
designee; and
    (4) Included in the AP or other acquisition request document 
provided by the requiring activity to the contracting office.
    (c) For instances with an existing technical evaluation and no 
organization's proposed supplies or services meet all of the Section 508 
accessibility standards; in order to proceed with the acquisition, the 
requiring activity shall provide an exception determination request 
along with the technical evaluation team's assessment of the Section 508 
evaluation factor to the designated Section 508 Official or designee for 
review and approval or disapproval. The contracting officer shall 
include the Section 508 Official's or designee's approval or disapproval 
of the exception determination request in the official contract file and 
reference it, as appropriate, in all source selection documents. For 
further information, see HHS Section 508 Policy on http://www.hhs.gov/
web/508.



339.205  Section 508 accessibility standards for contracts.

    (a) Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 
794(d)), as amended by the Workforce Investment Act of 1998 (Section 
508), specifies the applicable accessibility standards for all new 
solicitations and new or existing contracts or orders, regardless of EIT 
dollar amount.
    (b) The requiring activity shall consult with the OPDIV or STAFFDIV 
Section 508 Official or designee, as necessary, to determine the 
applicability of Section 508, identify applicable Section 508 
accessibility standards, and resolve any related issues before 
forwarding a request to the contracting or procurement office for the 
acquisition of EIT supplies and services--including Web site content and 
communications material for which the contractor must meet EIT 
accessibility standards.
    (c) Based on those discussions, the requiring activity shall provide 
a statement in the AP (or other acquisition request document) for 
Section 508 applicability. See 307.105. If Section 508 applies to an 
acquisition, include the provision at 352.239-73, Electronic and 
Information Technology and Accessibility Notice, language in a separate, 
clearly designated, section of the statement of work or performance work 
statement, along with any additional information applicable to the 
acquisition's Section 508 accessibility standards (e.g., the list of 
applicable accessibility standards of the Access Board EIT Accessibility 
Standards (36 CFR part 1194)). If an AP does not address Section 508 
applicability and it appears an acquisition involves Section 508, or if 
the discussion of Section 508 applicability to the acquisition is 
inadequate or incomplete, the contracting officer shall request the 
requiring activity modify the AP accordingly.
    (d) Items provided incidental to contract administration are not 
subject to this section.
    (e) The OPDIV Section 508 Official or designee may, at his or her 
discretion, require review and approval of solicitations and contracts 
for EIT supplies and services.

[[Page 39]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT





PART 342_CONTRACT ADMINISTRATION--Table of Contents



    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



                    Subpart 342.7_Indirect Cost Rates



342.705  Final indirect cost rates.

    Contract actions for which the Department of Health and Human 
Services is the cognizant Federal agency:
    (a) The Financial Management Services, Division of Cost Allocation, 
Program Support Center, shall establish facilities and administration 
costs, also known as indirect cost rates, research patient care rates, 
and, as necessary, fringe benefits, computer, and other special costing 
rates for use in contracts awarded to State and local governments, 
colleges and universities, hospitals, and other nonprofit organizations.
    (b) The National Institute of Health, Division of Financial Advisory 
Services, shall establish indirect cost rates and similar rates for use 
in contracts awarded to for profit organizations.

[[Page 40]]



                     SUBCHAPTER H_CLAUSES AND FORMS





PART 352_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents



       Subpart 352.1_Instructions for Using Provisions and Clauses

Sec.
352.100  Scope of subpart.
352.101-70  Application of provisions and clauses.

              Subpart 352.2_Texts of Provisions and Clauses

352.203-70  Anti-Lobbying.
352.204-70  Prevention and Public Health Fund-Reporting Requirements.
352.208-70  Printing and Duplication.
352.211-1  Public Accommodations and Commercial Facilities.
352.211-2  Conference Sponsorship Request and Conference Materials 
          Disclaimer.
352.211-3  Paperwork Reduction Act.
352.215-70  Late Proposals and Revisions.
352.216-70  Additional Cost Principles for Hospitals (Profit or Non-
          Profit).
352.219-70  Mentor-Protege Program.
352.219-71  Mentor-Protege Program Reporting Requirements.
352.222-70  Contractor Cooperation in Equal Employment Opportunity 
          Investigations.
352.223-70  Safety and Health.
352.223-71  Instructions to Offerors-Sustainable Acquisition.
352.224-70  Privacy Act.
352.224-71  Confidential Information.
352.226-1  Indian Preference.
352.226-2  Indian Preference Program.
352.226-3  Native American Graves Protection and Repatriation Act.
352.227-11  Patent Rights--Exceptional Circumstances.
352.227-14  Rights in Data--Exceptional Circumstances.
352.227-70  Publications and Publicity.
352.231-70  Salary Rate Limitation.
352.232-70  Incremental Funding.
352.233-70  Choice of Law (Overseas).
352.233-71  Litigation and Claims.
352.236-70  Design-Build Contracts.
352.237-70  Pro-Children Act.
352.237-71  Crime Control Act--Reporting of Child Abuse.
352.237-72  Crime Control Act--Requirement for Background Checks.
352.237-73  Indian Child Protection and Family Violence Act.
352.237-74  Non-Discrimination in Service Delivery.
352.237-75  Key Personnel.
352.239-73  Electronic Information and Technology Accessibility Notice.
352.239-74  Electronic Information and Technology Accessibility.
352.270-1--352.270-3  [Reserved]
352.270-4a  Notice to Offerors, Protection of Human Subjects.
352.270-4b  Protection of Human Subjects.
352.270-5a  Notice to Offerors of Requirement for Compliance with the 
          Public Health Service Policy on Humane Care and Use of 
          Laboratory Animals.
352.270-5b  Care of Live Vertebrate Animals.
352.270-6  Restriction on Use of Human Subjects.
352.270-7--352.270-8  [Reserved]
352.270-9  Non-Discrimination for Conscience.
352.270-10  Notice to Offerors--Protection of Human Subjects, Research 
          Involving Human Subjects Committee (RIHSC) Approval of 
          Research Protocols Required.
352.270-11  Protection of Human Subjects, Research Involving Human 
          Subjects Committee (RIHSC) Approval of Research Protocols 
          Required.
352.270-12  Needle Exchange.
352.270-13  Continued Ban on Funding Abortion and Continued Ban on 
          Funding of Human Embryo Research.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.



       Subpart 352.1_Instructions for Using Provisions and Clauses



352.100  Scope of subpart.

    This subpart provides guidance for applying the Department of Health 
and Human Services provisions and clauses in solicitations, contracts, 
and orders.



352.101-70  Application of provisions and clauses.

    (a) If a clause is included in the master instrument (e.g., in an 
indefinite delivery/indefinite quantity contract or a blanket purchase 
agreement), it is not necessary to also include the clause in a task 
order or delivery order thereunder.
    (b) When a dollar amount or dollar threshold is specified (e.g., $25 
million or simplified acquisition threshold), the dollar amount of the 
award (contract or order) includes any options thereunder.

[[Page 41]]



              Subpart 352.2_Texts of Provisions and Clauses



352.203-70  Anti-Lobbying.

    As prescribed in HHSAR 303.808-70, the Contracting Officer shall 
insert the following clause:

                        Anti-Lobbying (DEC 2015)

    Pursuant to the HHS annual appropriations acts, except for normal 
and recognized executive-legislative relationships, the Contractor shall 
not use any HHS contract funds for:
    (a) Publicity or propaganda purposes;
    (b) The preparation, distribution, or use of any kit, pamphlet, 
booklet, publication, electronic communication, radio, television, or 
video presentation designed to support or defeat the enactment of 
legislation before the Congress or any State or local legislature or 
legislative body, except in presentation to the Congress or any state or 
local legislature itself; or designed to support or defeat any proposed 
or pending regulation, administrative action, or order issued by the 
executive branch of any state or local government, except in 
presentation to the executive branch of any state or local government 
itself; or
    (c) Payment of salary or expenses of the Contractor, or any agent 
acting for the Contractor, related to any activity designed to influence 
the enactment of legislation, appropriations, regulation, administrative 
action, or Executive order proposed or pending before the Congress or 
any state government, state legislature or local legislature or 
legislative body, other than for normal and recognized executive-
legislative relationships or participation by an agency or officer of a 
state, local, or tribal government in policymaking and administrative 
processes within the executive branch of that government.
    (d) The prohibitions in subsections (a), (b), and (c) above shall 
include any activity to advocate or promote any proposed, pending, or 
future federal, state, or local tax increase, or any proposed, pending, 
or future requirement for, or restriction on, any legal consumer 
product, including its sale or marketing, including, but not limited to, 
the advocacy or promotion of gun control.

                             (End of clause)



352.204-70  Prevention and Public Health Fund--Reporting Requirements.

    As prescribed in HHSAR 304.7201, insert the following clause:

  Prevention and Public Health Fund--Reporting Requirements (DEC 2015)

    (a) Pursuant to public law this contract requires the contractor to 
provide products or services or both that are funded from the Prevention 
and Public Health Fund (PPHF), Public Law 111-148, sec. 4002. Section 
220(b)(5) requires each contractor to report on its use of these funds 
under this contract. These reports will be made available to the public.
    (b) Semi-annual reports from the Contractor for all work funded, in 
whole or in part, by the PPHF, are due no later than 20 days following 
the end of each 6-month period. The 6-month reporting periods are 
January through June and July through December. The first report is due 
no later than 20 days after the end of the 6-month period following 
contract award. Subsequent reports are due no later than 20 days after 
the end of each reporting period. If applicable, the Contractor shall 
submit its final report for the remainder of the contract period no 
later than 20 days after the end of the reporting period in which the 
contract ended.
    (c) The Contractor shall provide the following information in an 
electronic and Section 508 compliant format to the Contracting Officer.
    (1) The Government contract and order number, as applicable.
    (2) The amount of PPHF funds invoiced by the contractor for the 
reporting period and the cumulative amount invoiced for the contract or 
order.
    (3) A list of all significant services performed or supplies 
delivered, including construction, for which the contractor invoiced in 
the reporting period.
    (4) Program or project title, if any.
    (5) The Contractor shall report any subcontract funded in whole or 
in part with PPHF funding, that is valued at $25,000 or more. The 
Contractor shall advise the subcontractor that the information will be 
made available to the public. The Contractor shall report:
    (i) Name and address of the subcontractor.
    (ii) Amount of the subcontract award.
    (iii) Date of the subcontract award.
    (iv) A description of the products or services (including 
construction) being provided under the subcontract.

                             (End of clause)



352.208-70  Printing and Duplication.

    As prescribed in HHSAR 308.803, the Contracting Officer shall insert 
the following clause:

                   Printing and Duplication (DEC 2015)

    (a) Unless otherwise specified in this contract, no printing by the 
Contractor or any

[[Page 42]]

subcontractor is authorized under this contract. All printing required 
must be performed by the Government Printing Office except as authorized 
by the Contracting Officer. The Contractor shall submit camera-ready 
copies to the Contracting Officer's Representative (COR). The terms 
``printing'' and ``duplicating/copying'' are defined in the Government 
Printing and Binding Regulations of the Joint Committee on Printing.
    (b) If necessary for performance of the contract, the Contractor may 
duplicate or copy less than 5,000 production units of only one page, or 
less than 25,000 production units in aggregate of multiple pages for the 
use of a department or agency. A production unit is defined as one 
sheet, size 8.5 x 11 inches, one side only, and one color. The pages may 
not exceed a maximum image size of 10\3/4\ by 14\1/4\ inches. This page 
limit applies to each printing requirement and not for all printing 
requirements under the entire contract.
    (c) Approval for all printing, as well as duplicating/copying in 
excess of the stated limits, shall be obtained from the COR who will 
consult with the designated publishing services office and provide 
direction to the contractor. The cost of any unauthorized printing or 
duplicating/copying under this contract will be considered an 
unallowable cost for which the Contractor will not be reimbursed.



352.211-1  Public Accommodations and Commercial Facilities.

    As prescribed in HHSAR 311.7102, the Contracting Officer shall 
insert the following clause:

       Public Accommodations and Commercial Facilities (DEC 2015)

    The Contractor agrees as follows:
    (a) Except for ad hoc meetings necessary or incidental to contract 
performance, the Contractor shall develop a plan to assure that any 
event held pursuant to this contract will meet or exceed the minimum 
accessibility standards set forth in 28 CFR part 36--Nondiscrimination 
on the Basis of Disability by Public Accommodations and in Commercial 
Facilities. The Contractor shall submit the plan to the Contracting 
Officer and must receive approval prior to the event. The Contractor may 
submit a consolidated or master plan for contracts requiring numerous 
events in lieu of separate plans.
    (b) The Contractor shall manage the contract in accordance with the 
standards set forth in 28 CFR part 36.

                             (End of clause)



352.211-2  Conference Sponsorship Requests and Conference Materials
Disclaimer.

    As prescribed in HHSAR 311.7202, the Contracting Officer shall 
insert the following clause:

Conference Sponsorship Request and Conference Materials Disclaimer (DEC 
                                  2015)

    (a) If HHS is not the sole provider of funding under this contract, 
then, prior to the Contractor claiming HHS conference sponsorship, the 
Contractor shall submit a written request (including rationale) to the 
Contracting Officer for permission to claim such HHS sponsorship.
    (b) Whether or not HHS is the conference sponsor, the Contractor 
shall include the following statement on conference materials, including 
promotional materials, agendas, and Web sites:
    ``This conference was funded, in whole or in part, through a 
contract (insert contract number) with the Department of Health and 
Human Services (HHS) (insert name of OPDIV or STAFFDIV). The views 
expressed in written conference materials and by speakers and moderators 
at this conference, do not necessarily reflect the official policies of 
HHS, nor does mention of trade names, commercial practices, or 
organizations imply endorsement by the U.S. Government.''
    (c) Unless authorized in writing by the Contracting Officer, the 
Contractor shall not display the HHS logo on any conference materials.

                             (End of clause)



352.211-3  Paperwork Reduction Act.

    As prescribed in HHSAR 311.7301, the Contracting Officer shall 
insert the following clause:

                   Paperwork Reduction Act (DEC 2015)

    (a) This contract involves a requirement to collect or record 
information calling either for answers to identical questions from 10 or 
more persons other than Federal employees, or information from Federal 
employees which is outside the scope of their employment, for use by the 
Federal government or disclosure to third parties; therefore, the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) shall apply to 
this contract. No plan, questionnaire, interview guide or other similar 
device for collecting information (whether repetitive or single time) 
may be used

[[Page 43]]

without the Office of Management and Budget (OMB) first providing 
clearance. Contractors and the Contracting Officer's Representative 
shall be guided by the provisions of 5 CFR part 1320, Controlling 
Paperwork Burdens on the Public, and seek the advice of the HHS 
operating division or Office of the Secretary Reports Clearance Officer 
to determine the procedures for acquiring OMB clearance.
    (b) The Contractor shall not expend any funds or begin any data 
collection until the Contracting Officer provides the Contractor with 
written notification authorizing the expenditure of funds and the 
collection of data. The Contractor shall allow at least 120 days for OMB 
clearance. The Contracting Officer will consider excessive delays caused 
by the Government which arise out of causes beyond the control and 
without the fault or negligence of the Contractor in accordance with the 
Excusable Delays or Default clause of this contract.

                             (End of clause)



352.215-70  Late Proposals and Revisions.

    As prescribed in HHSAR 315.208, the Contracting Officer shall insert 
the following provision:

            Late Proposals and Revisions (DEC 2015) Deviation

    Notwithstanding the procedures contained in FAR 52.215-1(c)(3) of 
the provision of this solicitation entitled Instructions to Offerors-
Competitive Acquisition, the Government may consider a proposal received 
after the date specified for receipt if it appears to offer significant 
cost or technical advantage to the Government and it was received before 
proposals were distributed for evaluation, or within 5 calendar days 
after the exact time specified for receipt, whichever is earlier.

                           (End of provision)



352.216-70  Additional Cost Principles for Hospitals (Profit and Non-Profit).

    As prescribed in HHSAR 316.307(a)(2), the Contracting Officer shall 
insert the following clause:

  Additional Cost Principles for Hospitals (Profit or Non-Profit) (DEC 
                                  2015)

    (a) Bid and proposal (B&P) costs. (1) B&P costs are the immediate 
costs of preparing bids, proposals, and applications for potential 
Federal and non-Federal contracts, grants, and agreements, including the 
development of scientific, cost, and other data needed to support the 
bids, proposals, and applications.
    (2) B&P costs of the current accounting period are allowable as 
indirect costs.
    (3) B&P costs of past accounting periods are unallowable in the 
current period. However, if the organization's established practice is 
to treat these costs by some other method, they may be accepted if they 
are found to be reasonable and equitable.
    (4) B&P costs do not include independent research and development 
(IR&D) costs covered by the following paragraph, or pre-award costs 
covered by paragraph 36 of Attachment B to OMB Circular A-122.
    (b) IR&D costs.
    (1) IR&D is research and development conducted by an organization 
which is not sponsored by Federal or non-Federal contracts, grants, or 
other agreements.
    (2) IR&D shall be allocated its proportionate share of indirect 
costs on the same basis as the allocation of indirect costs to sponsored 
research and development.
    (3) The cost of IR&D, including its proportionate share of indirect 
costs, is unallowable.

                             (End of clause)



352.219-70  Mentor-Protege Program.

    As prescribed in HHSAR 319.270-1(a), the Contracting Officer shall 
insert the following provision:

                    Mentor-Protege Program (DEC 2015)

    (a) Large business prime contractors serving as mentors in the HHS 
Mentor-Protege Program are eligible for HHS subcontracting plan credit, 
and shall submit a copy of their HHS Office of Small and Disadvantaged 
Business Utilization (OSDBU)-approved mentor-protege agreements as part 
of their offers. The amount of credit provided by the Contracting 
Officer to a mentor firm for protege firm developmental assistance costs 
shall be calculated on a dollar for dollar basis and reported by the 
mentor firm in the Summary Subcontract Report via the Electronic 
Subcontracting Reporting System (eSRS) at www.esrs.gov. The mentor firm 
and protege firm shall submit to the Contracting Officer a signed joint 
statement agreeing on the dollar value of the developmental assistance 
the mentor firm provided. (For example, a mentor firm would report a 
$10,000 subcontract awarded to a protege firm and provision of $5,000 of 
developmental assistance as $15,000 of subcontracting plan credit.) The 
mentor firm may use this additional credit towards attaining its 
subcontracting plan participation goal under this contract.
    (b) The program consists of--
    (1) Mentor firms--large businesses that:

[[Page 44]]

    (i) Demonstrate the interest, commitment, and capability to provide 
developmental assistance to small business protege firms; and
    (ii) Have a Mentor-Protege agreement approved by HHS' OSDBU;
    (2) Protege firms--firms that:
    (i) Seek developmental assistance;
    (ii) Qualify as small businesses, veteran-owned small businesses, 
service-disabled veteran-owned small businesses, HUBZone small 
businesses, small disadvantaged businesses, or woman-owned small 
businesses; and
    (iii) Have a Mentor-Protege agreement approved by HHS' OSDBU; and
    (3) Mentor-Protege agreements--joint agreements, approved by HHS' 
OSDBU, which detail the specific terms, conditions, and responsibilities 
of the mentor-protege relationship.

                           (End of provision)



352.219-71  Mentor-Protege Program Reporting Requirements.

    As prescribed in HHSAR 319.270-1(b), the Contracting Officer shall 
insert the following clause:

      Mentor-Protege Program Reporting Requirements (January 2010)

    The Contractor shall comply with all reporting requirements 
specified in its Mentor-Protege agreement approved by HHS' OSDBU.

                             (End of clause)



352.222-70  Contractor Cooperation in Equal Employment Opportunity 
Investigations.

    As prescribed in HHSAR 322.810(h), the Contracting Officer shall 
insert the following clause:

 Contractor Cooperation in Equal Employment Opportunity Investigations 
                               (DEC 2015)

    (a) In addition to complying with the clause at FAR 52.222-26, Equal 
Opportunity, the Contractor shall, in good faith, cooperate with the 
Department of Health and Human Services (Agency) in investigations of 
Equal Employment Opportunity (EEO) complaints processed pursuant to 29 
CFR part 1614. For purposes of this clause, the following definitions 
apply:
    (1) Complaint means a formal or informal complaint that has been 
lodged with Agency management, Agency EEO officials, the Equal 
Employment Opportunity Commission (EEOC), or a court of competent 
jurisdiction.
    (2) Contractor employee means all current Contractor employees who 
work or worked under this contract. The term also includes current 
employees of subcontractors who work or worked under this contract. In 
the case of Contractor and subcontractor employees, who worked under 
this contract, but who are no longer employed by the Contractor or 
subcontractor, or who have been assigned to another entity within the 
Contractor's or subcontractor's organization, the Contractor shall 
provide the Agency with that employee's last known mailing address, 
email address, and telephone number, if that employee has been 
identified as a witness in an EEO complaint or investigation.
    (3) Good faith cooperation cited in paragraph (a) includes, but is 
not limited to, making Contractor employees available for:
    (i) Formal and informal interviews by EEO counselors or other Agency 
officials processing EEO complaints;
    (ii) Formal or informal interviews by EEO investigators charged with 
investigating complaints of unlawful discrimination filed by Federal 
employees;
    (iii) Reviewing and signing appropriate affidavits or declarations 
summarizing statements provided by such Contractor employees during the 
course of EEO investigations;
    (iv) Producing documents requested by EEO counselors, EEO 
investigators, Agency employees, or the EEOC in connection with a 
pending EEO complaint; and
    (v) Preparing for and providing testimony in depositions or in 
hearings before the MSPB, EEOC and U.S. District Court.
    (b) The Contractor shall include the provisions of this clause in 
all subcontract solicitations and subcontracts awarded at any tier under 
this contract.
    (c) Failure on the part of the Contractor or its subcontractors to 
comply with the terms of this clause may be grounds for the Contracting 
Officer to terminate this contract for default.

                             (End of clause)



352.223-70  Safety and Health.

    As prescribed in HHSAR 323.7002, the Contracting Officer shall 
insert the following clause:

                      Safety and Health (DEC 2015)

    (a) To help ensure the protection of the life and health of all 
persons, and to help prevent damage to property, the Contractor shall 
comply with all Federal, State, and local laws and regulations 
applicable to the work being performed under this contract. These laws 
are implemented or enforced by the Environmental Protection Agency, 
Occupational Safety and Health Administration (OSHA) and other 
regulatory/enforcement agencies at the Federal, State, and local levels.
    (1) In addition, the Contractor shall comply with the following 
regulations when developing and implementing health and safety

[[Page 45]]

operating procedures and practices for both personnel and facilities 
involving the use or handling of hazardous materials and the conduct of 
research, development, or test projects:
    (i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450, 
Occupational exposure to hazardous chemicals in laboratories; and other 
applicable occupational health and safety standards issued by OSHA and 
included in 29 CFR part 1910. These regulations are available at https:/
/www.osha.gov/.
    (ii) Nuclear Regulatory Commission Standards and Regulations, 
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et 
seq.). The Contractor may obtain copies from the U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.
    (2) The following Government guidelines are recommended for 
developing and implementing health and safety operating procedures and 
practices for both personnel and facilities:
    (i) Biosafety in Microbiological and Biomedical Laboratories, CDC. 
This publication is available at http://www.cdc.gov/biosafety/
publications/index.htm.
    (ii) Prudent Practices for Safety in Laboratories (1995), National 
Research Council, National Academy Press, 500 Fifth Street NW., Lockbox 
285, Washington, DC 20055 (ISBN 0-309-05229-7). This publication is 
available at http://www.nap.edu/catalog/4911/prudent-practices-in-the-
laboratory-handling-and-disposal-of-chemicals.
    (b) Further, the Contractor shall take or cause to be taken 
additional safety measures as the Contracting Officer, in conjunction 
with the Contracting Officer's Representative or other appropriate 
officials, determines to be reasonably necessary. If compliance with 
these additional safety measures results in an increase or decrease in 
the cost or time required for performance of any part of work under this 
contract, the Contracting Officer will make an equitable adjustment in 
accordance with the applicable ``Changes'' clause set forth in this 
contract.
    (c) The Contractor shall maintain an accurate record of, and 
promptly report to the Contracting Officer, all accidents or incidents 
resulting in the exposure of persons to toxic substances, hazardous 
materials or hazardous operations; the injury or death of any person; or 
damage to property incidental to work performed under the contract 
resulting from toxic or hazardous materials and resulting in any or all 
violations for which the Contractor has been cited by any Federal, State 
or local regulatory/enforcement agency. The report citing all accidents 
or incidents resulting in the exposure of persons to toxic substances, 
hazardous materials or hazardous operations; the injury or death of any 
person; or damage to property incidental to work performed under the 
contract resulting from toxic or hazardous materials and resulting in 
any or all violations for which the Contractor has been cited shall 
include a copy of the notice of violation and the findings of any 
inquiry or inspection, and an analysis addressing the impact these 
violations may have on the work remaining to be performed. The report 
shall also state the required action(s), if any, to be taken to correct 
any violation(s) noted by the Federal, State, or local regulatory/
enforcement agency and the time frame allowed by the agency to 
accomplish the necessary corrective action.
    (d) If the Contractor fails or refuses to comply with the Federal, 
State or local regulatory/enforcement agency's directive(s) regarding 
any violation(s) and prescribed corrective action(s), the Contracting 
Officer may issue an order stopping all or part of the work until 
satisfactory corrective action (as approved by the Federal, State, or 
local regulatory/enforcement agencies) has been taken and documented to 
the Contracting Officer. No part of the time lost due to any such stop 
work order shall form the basis for a request for extension or costs or 
damages by the Contractor.
    (e) The Contractor shall insert the substance of this clause in each 
subcontract involving toxic substances, hazardous materials, or 
hazardous operations. The Contractor is responsible for the compliance 
of its subcontractors with the provisions of this clause.

                             (End of clause)



352.223-71  Instructions to Offerors--Sustainable Acquisition.

    As prescribed in HHSAR 323.7103, the Contracting Officer shall 
insert the following provision:

      Instructions to Offerors--Sustainable Acquisition (DEC 2015)

    Offerors must include a Sustainable Acquisition Plan in their 
technical proposals. The Plan must describe their approach and the 
quality assurance mechanisms in place for applying FAR 23.1, Sustainable 
Acquisition Policy (and other Federal laws, regulations and Executive 
Orders governing sustainable acquisition purchasing) to this 
acquisition. The Plan shall clearly identify those products and services 
included in Federal sustainable acquisition preference programs by 
categorizing them along with their respective price/cost in the 
following eight groups: Recycled Content, Energy Efficient, Biobased, 
Environmentally Preferable, Electronic Product Environment Assessment 
Tool, Water-Efficient, Non-Ozone Depleting Substances, and Alternative 
Fuel Vehicle and Alternative Fuels.

[[Page 46]]

                           (End of provision)



352.224-70  Privacy Act.

    As prescribed in HHSAR 324.105(a), the Contracting Officer shall 
insert the following clause:

                         Privacy Act (DEC 2015)

    This contract requires the Contractor to perform one or more of the 
following: (a) Design; (b) develop; or (c) operate a Federal agency 
system of records to accomplish an agency function in accordance with 
the Privacy Act of 1974 (Act) (5 U.S.C. 552a(m)(1)) and applicable 
agency regulations.
    The term system of records means a group of any records under the 
control of any agency from which information is retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual. Violations of the Act 
by the Contractor and/or its employees may result in the imposition of 
criminal penalties (5 U.S.C. 552a(i)).
    The Contractor shall ensure that each of its employees knows the 
prescribed rules of conduct in 45 CFR part 5b and that each employee is 
aware that he/she is subject to criminal penalties for violation of the 
Act to the same extent as Department of Health and Human Services 
employees. These provisions also apply to all subcontracts the 
Contractor awards under this contract which require the design, 
development or operation of the designated system(s) of records (5 
U.S.C. 552a(m)(1)). The contract work statement:
    (a) Identifies the system(s) of records and the design, development, 
or operation work the Contractor is to perform; and
    (b) Specifies the disposition to be made of such records upon 
completion of contract performance.

                             (End of clause)



352.224-71  Confidential Information.

    As prescribed in HHSAR 324.105(b), insert the following clause:

                   Confidential Information (DEC 2015)

    (a) Confidential Information, as used in this clause, means 
information or data of a personal nature about an individual, or 
proprietary information or data submitted by or pertaining to an 
institution or organization.
    (b) Specific information or categories of information that the 
Government will furnish to the Contractor, or that the Contractor is 
expected to generate, which are confidential may be identified elsewhere 
in this contract. The Contracting Officer may modify this contract to 
identify Confidential Information from time to time during performance.
    (c) Confidential Information or records shall not be disclosed by 
the Contractor until:
    (1) Written advance notice of at least 45 days shall be provided to 
the Contracting Officer of the Contractor's intent to release findings 
of studies or research, to which an agency response may be appropriate 
to protect the public interest or that of the agency.
    (2) For information provided by or on behalf of the government,
    (i) The publication or dissemination of the following types of 
information are restricted under this contract: [INSERT RESTRICTED TYPES 
OF INFORMATION. IF NONE, SO STATE.]
    (ii) The reason(s) for restricting the types of information 
identified in subparagraph (i) is/are: [STATE WHY THE PUBLIC OR 
GOVERNMENT INTEREST REQUIRES THE RESTRICTION OF EACH TYPE OF 
INFORMATION. ANY BASIS FOR NONDISCLOSURE WHICH WOULD BE VALID UNDER THE 
FREEDOM OF INFORMATION ACT IS SUFFICIENT UNDER THIS CLAUSE.]
    (iii) Written advance notice of at least 45 days shall be provided 
to the Contracting Officer of the Contractor's intent to disseminate or 
publish information identified in subparagraph (2)(i). The contractor 
shall not disseminate or publish such information without the written 
consent of the Contracting Officer.
    (d) Whenever the Contractor is uncertain with regard to the 
confidentiality of or a property interest in information under this 
contract, the Contractor should consult with the Contracting Officer 
prior to any release, disclosure, dissemination, or publication.



352.226-1  Indian Preference.

    As prescribed in HHSAR 326.505(a), the Contracting Officer shall 
insert the following clause:

                      Indian Preference (DEC 2015)

    (a) The Contractor agrees to give preference in employment 
opportunities under this contract to Indians who can perform required 
work, regardless of age (subject to existing laws and regulations), sex, 
religion, or tribal affiliation. To the extent feasible and consistent 
with the efficient performance of this contract, the Contractor further 
agrees to give preference in employment and training opportunities under 
this contract to Indians who are not fully qualified to perform 
regardless of age (subject to existing laws and regulations), sex, 
religion, or tribal affiliation. The Contractor also agrees to give 
preference to Indian organizations and Indian-owned economic enterprises 
in the awarding of any subcontracts to the extent feasible and 
consistent with the efficient performance of this contract. The 
Contractor

[[Page 47]]

shall maintain the necessary statistical records to demonstrate 
compliance with this paragraph.
    (b) In connection with the Indian employment preference requirements 
of this clause, the Contractor shall provide reasonable opportunities 
for training, incident to such employment. Such training shall include 
on-the-job, classroom, or apprenticeship training designed to increase 
the vocational effectiveness of an Indian employee.
    (c) If the Contractor is unable to fill its employment and training 
opportunities after giving full consideration to Indians as required by 
this clause, the Contractor may satisfy those needs by selecting non-
Indian persons in accordance with the clause of this contract entitled 
``Equal Opportunity.''
    (d) If no Indian organizations or Indian-owned economic enterprises 
are available under reasonable terms and conditions, including price, 
for awarding of subcontracts in connection with the work performed under 
this contract, the Contractor agrees to comply with the provisions of 
this contract involving utilization of small businesses; HUBZone small 
businesses; service-disabled, veteran-owned small businesses; 8(a) small 
businesses; veteran-owned small businesses; women-owned small 
businesses; or small disadvantaged businesses.
    (e) As used in this clause,
    (1) Indian means a person who is a member of an Indian tribe. If the 
Contractor has reason to doubt that a person seeking employment 
preference is an Indian, the Contractor shall grant the preference but 
shall require the individual provide evidence within 30 days from the 
tribe concerned that the person is a member of the tribe.
    (2) Indian tribe means an Indian tribe, pueblo, band, nation, or 
other organized group or community, including Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601) 
which the United States recognizes as eligible for the special programs 
and services provided to Indians because of its status as Indians.
    (3) Indian organization means the governing body of any Indian Tribe 
or entity established or recognized by such governing body in accordance 
with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 1451).
    (4) Indian-owned economic enterprise means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of profit, provided that such Indian ownership shall 
constitute not less than 51 percent of the enterprise, and that 
ownership shall encompass active operation and control of the 
enterprise.
    (f) The Contractor agrees to include the provisions of this clause, 
including this paragraph (f) of this clause, in each subcontract awarded 
at any tier under this contract.
    (g) In the event of noncompliance with this clause, the Contracting 
Officer may terminate the contract in whole or in part or may pursue any 
other remedies authorized by law or by other provisions of the contract.

                             (End of clause)



352.226-2  Indian Preference Program.

    As prescribed in HHSAR 326.505(b), the Contracting Officer shall 
insert the following clause:

                  Indian Preference Program (DEC 2015)

    (a) In addition to the requirements of the clause of this contract 
entitled ``Indian Preference,'' the Contractor agrees to establish and 
conduct an Indian preference program which will expand opportunities for 
Indians to receive preference for employment and training in connection 
with the work performed under this contract, and which will expand the 
opportunities for Indian organizations and Indian-owned economic 
enterprises to receive a preference in the awarding of subcontracts. In 
this connection, the Contractor shall perform the following:
    (1) Designate a liaison officer who will maintain liaison with the 
Government and the Tribe(s) on Indian preference matters; supervise 
compliance with the provisions of this clause; and administer the 
Contractor's Indian preference program.
    (2) Advise its recruitment sources in writing and include a 
statement in all employment advertisements that Indian applicants 
receive preference in employment and training incident to such 
employment.
    (3) Not more than 20 calendar days after award of the contract, post 
a written notice setting forth the Contractor's employment needs and 
related training opportunities in the tribal office of any reservations 
on or near the contract work location. The notice shall include the 
approximate numbers and types of employees needed; the approximate dates 
of employment; any experience or special skills required for employment; 
training opportunities available; and other pertinent information 
necessary to advise prospective employees of any other employment 
requirements. The Contractor shall also request the tribe(s) on or near 
whose reservation(s) the Contractor will perform contract work to 
provide assistance filling its employment needs and training 
opportunities. The Contracting Officer will advise the Contractor of the 
name, location, and phone number of the Tribal officials to contact 
regarding the posting of notices and requests for Tribal assistance.
    (4) Establish and conduct a subcontracting program which gives 
preference to Indian organizations and Indian-owned economic enterprises 
as subcontractors (including suppliers) under this contract. The 
Contractor

[[Page 48]]

shall give public notice of existing subcontracting opportunities and, 
to the extent feasible and consistent with the efficient performance of 
this contract, shall solicit bids or proposals from Indian organizations 
or Indian-owned economic enterprises only. The Contractor shall request 
assistance and information on Indian firms qualified as subcontractors 
(including suppliers) from the Tribe(s) on or near whose reservation(s) 
the Contractor will perform contract work. The Contracting Officer will 
advise the Contractor of the name, location, and phone number of the 
Tribal officials to contact regarding the request for assistance and 
information. Public notices and solicitations for existing 
subcontracting opportunities shall provide an equitable opportunity for 
Indian firms to submit bids or proposals by including--
    (i) A clear description of the supplies or services required, 
including quantities, specifications, and delivery schedules that 
facilitate the participation of Indian firms;
    (ii) A statement indicating that Indian organizations and Indian-
owned economic enterprises will receive preference in accordance with 
section 7(b) of Public Law 93-638; 88 Stat. 2205; 25 U.S.C. 450e(b);
    (iii) Definitions for the terms ``Indian organization'' and 
``Indian-owned economic enterprise'' prescribed under the ``Indian 
Preference'' clause of this contract;
    (iv) A statement that the bidder or offeror shall complete 
certifying that it is an Indian organization or Indian-owned economic 
enterprise; and
    (v) A closing date for receipt of bids or proposals which provides 
sufficient time for preparation and submission of a bid or proposal. If, 
after soliciting bids or proposals from Indian organizations and Indian-
owned economic enterprises, the Contractor receives no responsive bid or 
acceptable proposal, the Contractor shall comply with the requirements 
of paragraph (d) of the ``Indian Preference'' clause of this contract. 
If the Contractor receives one or more responsive bids or conforming 
proposals, the Contractor shall award the contract to the low, 
responsive, responsible bidder or conforming offer from a responsible 
offeror if the price is reasonable. If the Contractor determines the low 
responsive bid or conforming proposal's price is unreasonable, the 
Contractor shall attempt to negotiate a reasonable price and award a 
subcontract. If parties cannot agree on a reasonable price, the 
Contractor shall comply with the requirements of paragraph (d) of the 
``Indian Preference'' clause of this contract.
    (5) Maintain written records under this contract which demonstrate--
    (i) The numbers of Indians seeking employment for each employment 
position available under this contract;
    (ii) The number and types of positions filled by Indians and non-
Indians;
    (iii) The total number of Indians employed under this contract;
    (iv) For those positions having both Indian and non-Indian 
applicants, and a non-Indian is selected for employment, the reason(s) 
why the Contractor did not select the Indian applicant;
    (v) Actions taken to give preference to Indian organizations and 
Indian-owned economic enterprises for subcontracting opportunities which 
exist under this contract;
    (vi) Reasons why Indian subcontractors and or suppliers did not 
receive preference for each requirement where the Contractor determined 
that such preference was inconsistent with efficient contract 
performance; and
    (vii) The number of Indian organizations and Indian-owned economic 
enterprises contacted, and the number receiving subcontract awards under 
this contract.
    (6) Submit to the Contracting Officer for approval a quarterly 
report summarizing the Contractor's Indian preference program and 
indicating the number and types of available positions filled by Indians 
and non-Indians, and the dollar amounts of all subcontracts awarded to 
Indian organizations and Indian-owned economic enterprises, and to all 
other firms.
    (7) Maintain records pursuant to this clause and keep them available 
for review by the Government for one year after final payment under this 
contract, or for such longer period in accordance with requirements of 
any other clause of this contract or by applicable law or regulation.
    (b) For purposes of this clause, the following definitions of terms 
shall apply:
    (1) The terms Indian, Indian tribe, Indian organization, and Indian-
owned economic enterprise are defined in the clause of this contract 
entitled Indian Preference.
    (2) Indian reservation includes Indian reservations, public domain 
Indian allotments, former Indian reservations in Oklahoma, and land held 
by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (85 Stat. 688; 43 U.S.C. 1601 et seq.)
    (3) On or near an Indian reservation means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably expect to commute to 
and from in the course of a work day.
    (c) Nothing in the requirements of this clause shall preclude Indian 
tribes from independently developing and enforcing their own Indian 
preference requirements. Such requirements must not conflict with any 
Federal statutory or regulatory requirement dealing with the award and 
administration of contracts.

[[Page 49]]

    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in each subcontract awarded at any tier 
under this contract and to notify the Contracting Officer of such 
subcontracts.
    (e) In the event of noncompliance with this clause, the Contracting 
Officer may terminate the contract in whole or in part or may pursue any 
other remedies authorized by law or by other provisions of the contract.

                             (End of clause)



352.226-3  Native American Graves Protection and Repatriation Act.

    As prescribed in HHSAR 326.701, the Contracting Officer shall insert 
the following clause:

    Native American Graves Protection and Repatriation Act (DEC 2015)

    (a) Public Law 101-601, dated November 16, 1990, also known as the 
Native American Graves Protection and Repatriation Act, imposes certain 
responsibilities on individuals and organizations when they discover 
Native American cultural items (including human remains) on Federal or 
tribal lands.
    (b) In the event the Contractor discovers Native American cultural 
items (including human remains, associated funerary objects, 
unassociated funerary objects, sacred objects and cultural patrimony), 
as defined in the Act during contract performance, the Contractor 
shall--
    (1) Immediately cease activity in the area of the discovery;
    (2) Notify the Contracting Officer of the discovery; and
    (3) Make a reasonable effort to protect the items discovered before 
resuming such activity. Upon receipt of the Contractor's discovery 
notice, the Contracting Officer will notify the appropriate authorities 
as required by the Act.
    (c) Unless otherwise specified by the Contracting Officer, the 
Contractor may resume activity in the area on the 31st calendar day 
following the date that the appropriate authorities certify receipt of 
the discovery notice. The Contracting Officer shall provide to the 
Contractor the date that the appropriate authorities certify receipt of 
the discovery notice and the date on which the Contractor may resume 
activities.



352.227-11  Patent Rights--Exceptional Circumstances.

    As prescribed in HHSAR 327.303, the Contracting Officer shall insert 
the following clause:

          Patent Rights--Exceptional Circumstances (SEPT 2014)

    This clause applies to all Contractor and subcontractor (at all 
tiers) Subject Inventions.
    (a) Definitions. As used in this clause--
    Agency means the Agency of the U.S. Department of Health and Human 
Services that is entering into this contract.
    Class 1 Subject Invention means a Subject Invention described and 
defined in the DEC that will be assigned to a third party assignee, or 
assigned as directed by the Agency.
    Class 2 Subject Invention means a Subject Invention described and 
defined in the DEC.
    Class 3 Subject Invention means a Subject Invention that does not 
fall into Class 1 or Class 2 as defined in this clause.
    DEC means the Determination of Exceptional Circumstances signed by 
[insert approving official] ____ on __ [insert date] ____ and titled 
``[insert description].''
    Invention means any invention or discovery, which is or may be 
patentable or otherwise protectable under Title 35 of United States 
Code, or any novel variety of plant that is or may be protectable under 
the Plant Variety Protection Act (7 U.S.C. 2321, et seq.)
    Made means: When used in relation to any invention other than a 
plant variety, the conception or first actual reduction to practice of 
such invention; or when used in relation to a plant variety, that the 
Contractor has at least tentatively determined that the variety has been 
reproduced with recognized characteristics.
    Material means any proprietary material, method, product, 
composition, compound, or device, whether patented or unpatented, which 
is provided to the Contractor under this contract.
    Nonprofit organization means a university or other institution of 
higher education or an organization of the type described in section 
501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and 
exempt from taxation under section 501(a) of the Internal Revenue Code 
(26 U.S.C. 501(a)) or any nonprofit scientific or educational 
organization qualified under a state nonprofit organization statute.
    Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or method, 
or to operate, in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.
    Small business firm means a small business concern as defined at 
section 2 of Public Law

[[Page 50]]

85-536 (15 U.S.C. 632) and implementing regulations of the Administrator 
of the Small Business Administration. For the purpose of this clause, 
the size standards for small business concerns involved in Government 
procurement and subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12, 
respectively, will be used.
    Subject Invention means any invention of the Contractor made in the 
performance of work under this contract.
    Third party assignee means any entity or organization that may, as 
described in the DEC, be assigned Class 1 inventions.
    (b) Allocation of principal rights. (1) Retention of pre-existing 
rights. Third party assignees shall retain all preexisting rights to 
Material in which the Third party assignee has a proprietary interest.
    (2) Allocation of Subject Invention rights. (i) Disposition of Class 
1 Subject Inventions. (A) Assignment to the Third party assignee or as 
directed by the Agency. The Contractor shall assign to the Third party 
assignee designated by the Agency the entire right, title, and interest 
throughout the world to each Subject Invention, or otherwise dispose of 
or transfer those rights as directed by the Agency, except to the extent 
that rights are retained by the Contractor under paragraph (b)(3) of 
this clause. Any such assignment or other disposition or transfer of 
rights will be subject to a nonexclusive, nontransferable, irrevocable, 
paid-up license to the U.S. Government to practice or have practiced the 
Subject Invention for or on behalf of the U.S. throughout the world. Any 
assignment shall additionally be subject to the ``March-in rights'' of 
35 U.S.C. 203. If the Contractor is a U.S. nonprofit organization it may 
retain a royalty free, nonexclusive, nontransferable license to practice 
the invention for all nonprofit research including for educational 
purposes, and to permit other U.S. nonprofit organizations to do so.
    (B) [Reserved]
    (ii) Disposition of Class 2 and 3 Subject Inventions. Class 2 
Subject Inventions shall be governed by FAR clause 52.227-11, Patent 
Rights-Ownership (December 2007) (incorporated herein by reference). 
However, the Contractor shall grant a license in the Class 2 Subject 
Inventions to the provider of the Material or other party designated by 
the Agency as set forth in Alternate I.
    (iii) Class 3 Subject Inventions shall be governed by FAR clause 
52.227-11, Patent Rights--Ownership by the Contractor (December 2007) 
(previously incorporated herein by reference).
    (3) Greater Rights Determinations. The Contractor, or an employee-
inventor after consultation by the Agency with the Contractor, may 
request greater rights than are provided in paragraph (b)(1) of this 
clause in accordance with the procedures of FAR paragraph 27.304-1(c). 
In addition to the considerations set forth in paragraph 27.304-1(c), 
the Agency may consider whether granting the requested greater rights 
will interfere with rights of the Government or any Third party assignee 
or otherwise impede the ability of the Government or the Third party 
assignee to, for example, develop and commercialize new compounds, 
dosage forms, therapies, preventative measures, technologies, or other 
approaches with potential for the diagnosis, prognosis, prevention, and 
treatment of human diseases.
    A request for a determination of whether the Contractor or the 
employee-inventor is entitled to retain such greater rights must be 
submitted to the Agency Contracting Officer at the time of the first 
disclosure of the invention pursuant to paragraph (c)(1) of this clause, 
or not later than 8 months thereafter, unless a longer period is 
authorized in writing by the Contracting Officer for good cause shown in 
writing by the Contractor. Each determination of greater rights under 
this contract shall be subject to paragraph (c) of the FAR clause at 
52.227-13 (incorporated herein by reference), and to any reservations 
and conditions deemed to be appropriate by the Agency such as the 
requirement to assign or exclusively license the rights to Subject 
Inventions to the Third party assignee.
    A determination by the Agency denying a request by the Contractor 
for greater rights in a Subject Invention may be appealed within 30 days 
of the date the Contractor is notified of the determination to an Agency 
official at a level above the individual who made the determination. If 
greater rights are granted, the Contractor must file a patent 
application on the invention. Upon request, the Contractor shall provide 
the filing date, serial number and title, a copy of the patent 
application (including an English-language version if filed in a 
language other than English), and patent number and issue date for any 
Subject Invention in any country for which the Contractor has retained 
title. Upon request, the Contractor shall furnish the Government an 
irrevocable power to inspect and make copies of the patent application 
file.
    (c) Invention disclosure by Contractor. The Contractor shall 
disclose in writing each Subject Invention to the Agency Contracting 
Officer and to the Director, Division of Extramural Inventions and 
Technology Resources (DEITR), if directed by the Contracting Officer, as 
provided in paragraph (j) of this clause within 2 months after the 
inventor discloses it in writing to Contractor personnel responsible for 
patent matters. The disclosure to the Agency Contracting Officer shall 
be in the form of a written report and shall identify the contract under 
which the invention was Made and all inventors. It shall be sufficiently 
complete in technical detail to convey a clear understanding to the

[[Page 51]]

extent known at the time of the disclosure, of the nature, purpose, 
operation, and the physical, chemical, biological, or electrical 
characteristics of the invention. The disclosure shall also identify any 
publication, on sale (offer for sale), or public use of the invention 
and whether a manuscript describing the invention has been submitted for 
publication, and if so, whether it has been accepted for publication at 
the time of disclosure.
    In addition, after disclosure to the Agency, the Contractor will 
promptly notify the Contracting Officer and DEITR of the acceptance of 
any manuscript describing the invention for publication or of any on 
sale or public use planned by the Contractor. If the Contractor assigns 
a Subject Invention to the Third party assignee, then the Contractor and 
its employee inventors shall assist the Third party assignee in securing 
patent protection. All costs of securing the patent, including the cost 
of the Contractor's assistance, are at the Third party's expense. Any 
assistance provided by the Contractor and its employee inventors to the 
Third party assignee or other costs incurred in securing patent 
protection shall be solely at the Third party's expense and not billable 
to the contract.
    (d) Contractor action to protect the Third party assignee's and the 
Government's interest. (1) The Contractor agrees to execute or to have 
executed and promptly deliver to the Agency all instruments necessary 
to: Establish or confirm the rights the Government has throughout the 
world in Subject Inventions pursuant to paragraph (b) of this clause; 
convey title to a Third party assignee in accordance with paragraph (b) 
of this clause; and enable the Third party assignee to obtain patent 
protection throughout the world in that Subject Invention.
    (2) The Contractor agrees to require, by written agreement, its 
employees, other than clerical and nontechnical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
Contractor, each Subject Invention ``Made'' under contract in order that 
the Contractor can comply with the disclosure provisions of paragraph 
(c) of this clause, and to execute all papers necessary to file patent 
applications on Subject Inventions and to establish the Government's 
rights or a Third party assignee's rights in the Subject Inventions. 
This disclosure format should require, as a minimum, the information 
required by subparagraph (c)(1) of this clause. The Contractor shall 
instruct such employees, through employee agreements or other suitable 
educational programs, on the importance of reporting inventions in 
sufficient time to permit the filing of patent applications prior to 
U.S. or foreign statutory bars.
    (3) If the Contractor is granted greater rights, the Contractor 
agrees to include, within the specification of any United States non-
provisional patent application it files, and any patent issuing thereon, 
covering a Subject Invention the following statement: ``This invention 
was made with Government support under (identify the Contract) awarded 
by (identify the specific Agency). The Government has certain rights in 
the invention.''
    (4) The Contractor agrees to provide a final invention statement and 
certification prior to the closeout of the contract listing all Subject 
Inventions or stating that there were none.
    (e) Subcontracts. (1) The Contractor will include this clause in all 
subcontracts, regardless of tier, for experimental, developmental, or 
research work. At all tiers, the clause must be modified to identify the 
parties as follows: References to the Government are not changed, and 
the subcontractor has all rights and obligations of the Contractor in 
the clause. The Contractor will not, as part of the consideration for 
awarding the contract, obtain rights in the subcontractor's Subject 
Inventions.
    (2) In subcontracts, at any tier, the Agency, the subcontractor, and 
the Contractor agree that the mutual obligations of the parties created 
by this clause constitute a contract between the subcontractor and the 
Agency with respect to the matters covered by the clause; provided, 
however, that nothing in this paragraph is intended to confer any 
jurisdiction under the Contract Disputes Act in connection with 
proceedings under paragraph (c)(1)(ii) of FAR clause 52.227-13.
    (f) Reporting on utilization of Subject Inventions in the event 
greater rights are granted to the Contractor. The Contractor agrees to 
submit, on request, periodic reports no more frequently than annually on 
the utilization of a Subject Invention or on efforts at obtaining such 
utilization that are being made by the Contractor or its licensees or 
assignees when a request under subparagraph b.3. has been granted by the 
Agency. Such reports shall include information regarding the status of 
development, date of first commercial sale or use, gross royalties 
received by the Contractor, and such other data and information as the 
Agency may reasonably specify. The Contractor also agrees to provide 
additional reports as may be requested by the Agency in connection with 
any march-in proceeding undertaken by the Agency in accordance with 
paragraph (h) of this clause. As required by 35 U.S.C. 202(c)(5), the 
Agency agrees it will not disclose such information to persons outside 
the Government without permission of the Contractor.
    (g) Preference for United States industry in the event greater 
rights are granted to the Contractor. Notwithstanding any other 
provision of this clause, the Contractor agrees

[[Page 52]]

that neither it nor any assignee will grant to any person the exclusive 
right to use or sell any Subject Invention in the United States unless 
such person agrees that any product embodying the Subject Invention or 
produced through the use of the Subject Invention will be manufactured 
substantially in the United States. However, in individual cases, the 
requirement for such an agreement may be waived by the Agency upon a 
showing by the Contractor or its assignee that reasonable but 
unsuccessful efforts have been made to grant licenses on similar terms 
to potential licensees that would be likely to manufacture substantially 
in the United States or that under the circumstances domestic 
manufacture is not commercially feasible.
    (h) March-in rights in the event greater rights are granted to the 
Contractor. The Contractor acknowledges that, with respect to any 
Subject Invention in which it has acquired ownership through the 
exercise of the rights specified in paragraph (b)(3) of this clause, the 
Agency has the right to require licensing pursuant to 35 U.S.C. 203 and 
210(c), and in accordance with the procedures in 37 CFR 401.6 and any 
supplemental regulations of Agency in effect on the date of contract 
award.
    (i) Special provisions for contracts with nonprofit organizations in 
the event greater rights are granted to the Contractor. If the 
Contractor is a nonprofit organization, it shall:
    (1) Not assign rights to a Subject Invention in the United States 
without the written approval of the Agency, except where an assignment 
is made to an organization that has as one of its primary functions the 
management of inventions, provided that the assignee shall be subject to 
the same provisions as the Contractor;
    (2) Share royalties collected on a Subject Invention with the 
inventor, including Federal employee co-inventors (but through their 
Agency if the Agency deems it appropriate) when the Subject Invention is 
assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
    (3) Use the balance of any royalties or income earned by the 
Contractor with respect to Subject Inventions, after payment of expenses 
(including payments to inventors) incidental to the administration of 
Subject Inventions for the support of scientific research or education;
    (4) Make efforts that are reasonable under the circumstances to 
attract licensees of Subject Inventions that are small business 
concerns, and give a preference to a small business concern when 
licensing a Subject Invention if the Contractor determines that the 
small business concern has a plan or proposal for marketing the 
invention which, if executed, is equally as likely to bring the 
invention to practical application as any plans or proposals from 
applicants that are not small business concerns; provided, that the 
Contractor is also satisfied that the small business concern has the 
capability and resources to carry out its plan or proposal. The decision 
whether to give a preference in any specific case will be at the 
discretion of the Contractor; and
    (5) Allow the Secretary of Commerce to review the Contractor's 
licensing program and decisions regarding small business applicants, and 
negotiate changes to its licensing policies, procedures, or practices 
with the Secretary of Commerce when the Secretary's review discloses 
that the Contractor could take reasonable steps to more effectively 
implement the requirements of paragraph (i)(4) of this clause.
    (j) Communications. All invention disclosures and requests for 
greater rights shall be sent to the Agency Contracting Officer, as 
directed by the Contracting Officer. Additionally, a copy of all 
disclosures, confirmatory licenses to the Government, face page of the 
patent applications, waivers and other routine communications under this 
funding agreement at all tiers must be sent to:
    [Insert Agency Address]
    Agency Invention Reporting Web site: https://public.era.nih.gov/
iedison.
    Alternate I (Sept 2014). As prescribed in 327.303, the license to 
Class 2 inventions recited in 352.227-11(b)(2)(a) is as follows:
    [Insert description of license to Class 2 inventions]

                             (End of clause)



352.227-14  Rights in Data--Exceptional Circumstances.

    As prescribed in HHSAR 327.409, insert the following clause with any 
appropriate alternates:

          Rights in Data--Exceptional Circumstances (SEPT 2014)

    (a) Definitions. As used in this clause--Definitions may be added or 
modified in paragraph (a) as applicable.
    Computer database or database means a collection of recorded 
information in a form capable of, and for the purpose of, being stored 
in, processed, and operated on by a computer. The term does not include 
computer software.
    Computer software--(i) Means (A) Computer programs that comprise a 
series of instructions, rules, routines, or statements, regardless of 
the media in which recorded, that allow or cause a computer to perform a 
specific operation or series of operations; and
    (B) Recorded information comprising source code listings, design 
details, algorithms, processes, flow charts, formulas, and related 
material that would enable the computer program to be produced, created, 
or compiled.

[[Page 53]]

    (ii) Does not include computer databases or computer software 
documentation.
    Computer software documentation means owner's manuals, user's 
manuals, installation instructions, operating instructions, and other 
similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    Data means recorded information, regardless of form or the media on 
which it may be recorded. The term includes technical data and computer 
software. The term does not include information incidental to contract 
administration, such as financial, administrative, cost or pricing, or 
management information.
    Form, fit, and function data means data relating to items, 
components, or processes that are sufficient to enable physical and 
functional interchangeability, and data identifying source, size, 
configuration, mating and attachment characteristics, functional 
characteristics, and performance requirements. For computer software it 
means data identifying source, functional characteristics, and 
performance requirements but specifically excludes the source code, 
algorithms, processes, formulas, and flow charts of the software.
    Limited rights means the rights of the Government in limited rights 
data as set forth in the Limited Rights Notice in Alternate II paragraph 
(g)(3) if included in this clause. ``Limited rights data'' means data, 
other than computer software, that embody trade secrets or are 
commercial or financial and confidential or privileged, to the extent 
that such data pertain to items, components, or processes developed at 
private expense, including minor modifications.
    Restricted computer software means computer software developed at 
private expense and that is a trade secret, is commercial or financial 
and confidential or privileged, or is copyrighted computer software, 
including minor modifications of the computer software.
    Restricted rights, as used in this clause, means the rights of the 
Government in restricted computer software, as set forth in a Restricted 
Rights Notice of Alternate III paragraph (g)(4) if included in this 
clause, or as otherwise may be provided in a collateral agreement 
incorporated in and made part of this contract, including minor 
modifications of such computer software.
    Technical data means recorded information (regardless of the form or 
method of the recording) of a scientific or technical nature (including 
computer databases and computer software documentation). This term does 
not include computer software or financial, administrative, cost or 
pricing, or management data or other information incidental to contract 
administration. The term includes recorded information of a scientific 
or technical nature that is included in computer databases (See 41 
U.S.C. 403(8)).
    Unlimited rights means the rights of the Government to use, 
disclose, reproduce, prepare derivative works, distribute copies to the 
public, and perform publicly and display publicly, in any manner and for 
any purpose, and to have or permit others to do so.
    (b) Allocation of rights. (1) Except as provided in paragraph (c) of 
this clause, the Government shall have unlimited rights in--
    (i) Data first produced in the performance of this contract;
    (ii) Form, fit, and function data delivered under this contract;
    (iii) Data delivered under this contract (except for restricted 
computer software) that constitute manuals or instructional and training 
material for installation, operation, or routine maintenance and repair 
of items, components, or processes delivered or furnished for use under 
this contract; and
    (iv) All other data delivered under this contract unless provided 
otherwise for limited rights data or restricted computer software in 
accordance with paragraph (g) of this clause.
    (2) The Contractor shall have the right to--
    (i) Assert copyright in data first produced in the performance of 
this contract to the extent provided in paragraph (c)(1) of this clause;
    (ii) Use, release to others, reproduce, distribute, or publish any 
data first produced or specifically used by the Contractor in the 
performance of this contract, unless provided otherwise in paragraph (d) 
of this clause;
    (iii) Substantiate the use of, add, or correct limited rights, 
restricted rights, or copyright notices and to take other appropriate 
action, in accordance with paragraphs (e) and (f) of this clause; and
    (iv) Protect from unauthorized disclosure and use those data that 
are limited rights data or restricted computer software to the extent 
provided in paragraph (g) of this clause.
    (c) Copyright--(1) Data first produced in the performance of this 
contract. (i) Unless provided otherwise in paragraph (d) of this clause, 
the Contractor may, without prior approval of the Contracting Officer, 
assert copyright in scientific and technical articles based on or 
containing data first produced in the performance of this contract and 
published in academic, technical or professional journals, symposia 
proceedings, or similar works. The prior, express written permission of 
the Contracting Officer is required to assert copyright in all other 
data first produced in the performance of this contract.
    (ii) When authorized to assert copyright to the data, the Contractor 
shall affix the applicable copyright notices of 17 U.S.C. 401 or 402, 
and an acknowledgment of Government sponsorship (including contract 
number).

[[Page 54]]

    (iii) For data other than computer software, the Contractor grants 
to the Government and others acting on its behalf, a paid-up, 
nonexclusive, irrevocable, worldwide license in such copyrighted data to 
reproduce, prepare derivative works, distribute copies to the public, 
and perform publicly and display publicly by or on behalf of the 
Government. For computer software, the Contractor grants to the 
Government, and others acting on its behalf, a paid-up, nonexclusive, 
irrevocable, worldwide license in such copyrighted computer software to 
reproduce, prepare derivative works, and perform publicly and display 
publicly (but not to distribute copies to the public) by or on behalf of 
the Government.
    (2) Data not first produced in the performance of this contract. The 
Contractor shall not, without the prior written permission of the 
Contracting Officer, incorporate in data delivered under this contract 
any data not first produced in the performance of this contract unless 
the Contractor--
    (i) Identifies the data; and
    (ii) Grants to the Government, or acquires on its behalf, a license 
of the same scope as set forth in paragraph (c)(1) of this clause or, if 
such data are restricted computer software, the Government shall acquire 
a copyright license as set forth in paragraph (g)(4) of this clause (if 
included in this contract) or as otherwise provided in a collateral 
agreement incorporated in or made part of this contract.
    (3) Removal of copyright notices. The Government will not remove any 
authorized copyright notices placed on data pursuant to this paragraph 
(c), and will include such notices on all reproductions of the data.
    (d) Release, publication, and use of data. The Contractor shall have 
the right to use, release to others, reproduce, distribute, or publish 
any data first produced or specifically used by the Contractor in the 
performance of this contract, except--
    (1) As prohibited by Federal law or regulation (e.g., export control 
or national security laws or regulations);
    (2) As expressly set forth in this contract; or
    (3) If the Contractor receives or is given access to data necessary 
for the performance of this contract that contain restrictive markings, 
the Contractor shall treat the data in accordance with such markings 
unless specifically authorized otherwise in writing by the Contracting 
Officer or in the following paragraphs.
    (4) In addition to any other provisions, set forth in this contract, 
the Contractor shall ensure that information concerning possible 
inventions made under this contract is not prematurely published thereby 
adversely affecting the ability to obtain patent protection on such 
inventions. Accordingly, the Contractor will provide the Contracting 
Officer a copy of any publication or other public disclosure relating to 
the work performed under this contract at least 30 days in advance of 
the disclosure. Upon the Contracting Officer's request the Contractor 
agrees to delay the public disclosure of such data or publication of a 
specified paper for a reasonable time specified by the Contracting 
Officer, not to exceed 6 months, to allow for the filing of domestic and 
international patent applications in accordance with Clause 352.227-11, 
Patent Rights--Exceptional Circumstances (abbreviated month and year of 
Final Rule publication).
    (5) Data on Material(s). The Contractor agrees that in accordance 
with paragraph (d)(2), proprietary data on Material(s) provided to the 
Contractor under or through this contract shall be used only for the 
purpose for which they were provided, including screening, evaluation or 
optimization and for no other purpose.
    (6) Confidentiality. (i) The Contractor shall take all reasonable 
precautions to maintain Confidential Information as confidential, but no 
less than the steps Contractor takes to secure its own confidential 
information.
    (ii) Contractor shall maintain Confidential Information as 
confidential unless specifically authorized otherwise in writing by the 
Contracting Officer. Confidential Information includes/does not include 
[Government may define confidential information here.]
    (e) Unauthorized marking of data. (1) Notwithstanding any other 
provisions of this contract concerning inspection or acceptance, if any 
data delivered under this contract are marked with the notices specified 
in paragraph (g)(3) or (4) of this clause (if those alternate paragraphs 
are included in this clause), and use of the notices is not authorized 
by this clause, or if the data bears any other restrictive or limiting 
markings not authorized by this contract, the Contracting Officer may 
cancel or ignore the markings. However, pursuant to 41 U.S.C. 253d, the 
following procedures shall apply prior to canceling or ignoring the 
markings.
    (i) The Contracting Officer will make written inquiry to the 
Contractor affording the Contractor 60 days from receipt of the inquiry 
to provide written justification to substantiate the propriety of the 
markings;
    (ii) If the Contractor fails to respond or fails to provide written 
justification to substantiate the propriety of the markings within the 
60-day period (or a longer time approved in writing by the Contracting 
Officer for good cause shown), the Government shall have the right to 
cancel or ignore the markings at any time after said period and the data 
will no longer be made subject to any disclosure prohibitions.
    (iii) If the Contractor provides written justification to 
substantiate the propriety of the markings within the period set in 
paragraph (e)(1)(i) of this clause, the Contracting

[[Page 55]]

Officer will consider such written justification and determine whether 
or not the markings are to be cancelled or ignored. If the Contracting 
Officer determines that the markings are authorized, the Contractor will 
be so notified in writing. If the Contracting Officer determines, with 
concurrence of the Head of the Contracting Activity, that the markings 
are not authorized, the Contracting Officer will furnish the Contractor 
a written determination, which determination will become the final 
Agency decision regarding the appropriateness of the markings unless the 
Contractor files suit in a court of competent jurisdiction within 90 
days of receipt of the Contracting Officer's decision. The Government 
will continue to abide by the markings under this paragraph (e)(1)(iii) 
until final resolution of the matter either by the Contracting Officer's 
determination becoming final (in which instance the Government will 
thereafter have the right to cancel or ignore the markings at any time 
and the data will no longer be made subject to any disclosure 
prohibitions), or by final disposition of the matter by court decision 
if suit is filed.
    (2) The time limits in the procedures set forth in paragraph (e)(1) 
of this clause may be modified in accordance with Agency regulations 
implementing the Freedom of Information Act (5 U.S.C. 552) if necessary 
to respond to a request there under.
    (3) Except to the extent the Government's action occurs as the 
result of final disposition of the matter by a court of competent 
jurisdiction, the Contractor is not precluded by this paragraph (e) from 
bringing a claim, in accordance with the Disputes clause of this 
contract, that may arise as the result of the Government removing or 
ignoring authorized markings on data delivered under this contract.
    (f) Omitted or incorrect markings. (1) Data delivered to the 
Government without any restrictive markings shall be deemed to have been 
furnished with unlimited rights. The Government is not liable for the 
disclosure, use, or reproduction of such data.
    (2) If the unmarked data has not been disclosed without restriction 
outside the Government, the Contractor may request, within 6 months (or 
a longer time approved by the Contracting Officer in writing for good 
cause shown) after delivery of the data, permission to have authorized 
notices placed on the data at the Contractor's expense. The Contracting 
Officer may agree to do so if the Contractor--
    (i) Identifies the data to which the omitted notice is to be 
applied;
    (ii) Demonstrates that the omission of the notice was inadvertent;
    (iii) Establishes that the proposed notice is authorized; and
    (iv) Acknowledges that the Government has no liability for the 
disclosure, use, or reproduction of any data made prior to the addition 
of the notice or resulting from the omission of the notice.
    (3) If data has been marked with an incorrect notice, the 
Contracting Officer may--
    (i) Permit correction of the notice at the Contractor's expense if 
the Contractor identifies the data and demonstrates that the correct 
notice is authorized; or
    (ii) Correct any incorrect notices.
    (g) Protection of limited rights data and restricted computer 
software. (1) The Contractor may withhold from delivery qualifying 
limited rights data or restricted computer software that are not data 
identified in paragraphs (b)(1)(i) through (iii) of this clause. As a 
condition to this withholding, the Contractor shall--
    (i) Identify the data being withheld; and
    (ii) Furnish form, fit, and function data instead.
    (2) Limited rights data that are formatted as a computer database 
for delivery to the Government shall be treated as limited rights data 
and not restricted computer software.
    (3) [Reserved]
    (h) Subcontracting. The Contractor shall obtain from its 
subcontractors all data and rights therein necessary to fulfill the 
Contractor's obligations to the Government under this contract. If a 
subcontractor refuses to accept terms affording the Government those 
rights, the Contractor shall promptly notify the Contracting Officer of 
the refusal and shall not proceed with the subcontract award without 
authorization in writing from the Contracting Officer.
    (i) Relationship to patents or other rights. Nothing contained in 
this clause shall imply a license to the Government under any patent or 
be construed as affecting the scope of any license or other right 
otherwise granted to the Government.

                             (End of clause)

    Alternate I (Sept 2014). As prescribed in HHSAR 327.409, substitute 
the following definition for ``limited rights data'' in paragraph (a) of 
the basic clause:
    Limited rights data means data, other than computer software, 
developed at private expense that embody trade secrets or are commercial 
or financial and confidential or privileged.
    Alternate II (Sept 2014). As prescribed in HHSAR 327.409, insert the 
following paragraph (g)(3) in the basic clause:
    (g)(3) Notwithstanding paragraph (g)(1) of this clause, the contract 
may identify and specify the delivery of limited rights data, or the 
Contracting Officer may require by written request

[[Page 56]]

the delivery of limited rights data that has been withheld or would 
otherwise be entitled to be withheld. If delivery of that data is 
required, the Contractor shall affix the following ``Limited Rights 
Notice'' to the data and the Government will treat the data, subject to 
the provisions of paragraphs (e) and (f) of this clause, in accordance 
with the notice:

                    Limited Rights Notice (SEPT 2014)

    (a) These data are submitted with limited rights under Government 
Contract No. __ (and subcontract __, if appropriate). These data may be 
reproduced and used by the Government with the express limitation that 
they will not, without written permission of the Contractor, be used for 
purposes of manufacture nor disclosed outside the Government; except 
that the Government may disclose these data outside the Government for 
the following purposes, if any; provided that the Government makes such 
disclosure subject to prohibition against further use and disclosure: 
Agencies may list additional purposes or if none, so state.
    (b) This notice shall be marked on any reproduction of these data, 
in whole or in part.

                             (End of notice)

    Alternate III (SEPT 2014). As prescribed in HHSAR 327.409, insert 
the following paragraph (g)(4) in the basic clause: (g)(4)(i) 
Notwithstanding paragraph (g)(1) of this clause, the contract may 
identify and specify the delivery of restricted computer software, or 
the Contracting Officer may require by written request the delivery of 
restricted computer software that has been withheld or would otherwise 
be entitled to be withheld. If delivery of that computer software is 
required, the Contractor shall affix the following ``Restricted Rights 
Notice'' to the computer software and the Government will treat the 
computer software, subject to paragraphs (e) and (f) of this clause, in 
accordance with the notice:

                  Restricted Rights Notice (SEPT 2014)

    (a) This computer software is submitted with restricted rights under 
Government Contract No. __ (and subcontract __, if appropriate). It may 
not be used, reproduced, or disclosed by the Government except as 
provided in paragraph (b) of this notice or as otherwise expressly 
stated in the contract.
    (b) This computer software may be--
    (1) Used or copied for use with the computer(s) for which it was 
acquired, including use at any Government installation to which the 
computer(s) may be transferred;
    (2) Used or copied for use with a backup computer if any computer 
for which it was acquired is inoperative;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that the modified, adapted, or combined portions of the 
derivative software incorporating any of the delivered, restricted 
computer software shall be subject to the same restricted rights;
    (5) Disclosed to and reproduced for use by support service 
Contractors or their subcontractors in accordance with paragraphs (b)(1) 
through (4) of this notice; and
    (6) Used or copied for use with a replacement computer.
    (c) Notwithstanding the foregoing, if this computer software is 
copyrighted computer software, it is licensed to the Government with the 
minimum rights set forth in paragraph (b) of this notice.
    (d) Any other rights or limitations regarding the use, duplication, 
or disclosure of this computer software are to be expressly stated in, 
or incorporated in, the contract.
    (e) This notice shall be marked on any reproduction of this computer 
software, in whole or in part.

                             (End of notice)

    (ii) Where it is impractical to include the Restricted Rights Notice 
on restricted computer software, the following short-form notice may be 
used instead:

             Restricted Rights Notice Short Form (SEPT 2014)

    Use, reproduction, or disclosure is subject to restrictions set 
forth in Contract No. __ (and subcontract, if appropriate) with __ (name 
of Contractor and subcontractor).

                             (End of notice)

    (iii) If restricted computer software is delivered with the 
copyright notice of 17 U.S.C. 401, it will be presumed to be licensed to 
the Government without disclosure prohibitions, with the minimum rights 
set forth in paragraph (b) of this clause.

    Alternate IV Sept 2014). As prescribed in HHSAR 327.409, substitute 
the following paragraph (c)(1) for paragraph (c)(1) of the basic clause:
    (c) Copyright--(1) Data first produced in the performance of the 
contract. Except as otherwise specifically provided in this contract, 
the Contractor may assert copyright in any

[[Page 57]]

data first produced in the performance of this contract. When asserting 
copyright, the Contractor shall affix the applicable copyright notice of 
17 U.S.C. 401 or 402, and an acknowledgment of Government sponsorship 
(including contract number), to the data when such data are delivered to 
the Government, as well as when the data are published or deposited for 
registration as a published work in the U.S. Copyright Office. For data 
other than computer software, the Contractor grants to the Government, 
and others acting on its behalf, a paid-up, nonexclusive, irrevocable, 
worldwide license for all such data to reproduce, prepare derivative 
works, distribute copies to the public, and perform publicly and display 
publicly, by or on behalf of the Government. For computer software, the 
Contractor grants to the Government and others acting on its behalf, a 
paid-up, nonexclusive, irrevocable, worldwide license for all such 
computer software to reproduce, prepare derivative works, and perform 
publicly and display publicly (but not to distribute copies to the 
public), by or on behalf of the Government.
    Alternate V (Sept 2014). As prescribed in HHSAR 327.409, add the 
following paragraph (j) to the basic clause:
    (j) The Contractor agrees, except as may be otherwise specified in 
this contract for specific data deliverables listed as not subject to 
this paragraph, that the Contracting Officer may, up to 3 years after 
acceptance of all deliverables under this contract, inspect at the 
Contractor's facility any data withheld pursuant to paragraph (g)(1) of 
this clause, for purposes of verifying the Contractor's assertion of 
limited rights or restricted rights status of the data or for evaluating 
work performance. When the Contractor whose data are to be inspected 
demonstrates to the Contracting Officer that there would be a possible 
conflict of interest if a particular representative made the inspection, 
the Contracting Officer shall designate an alternate inspector.

                             (End of clause)



352.227-70  Publications and Publicity.

    As prescribed in HHSAR 327.404-70, the Contracting Officer shall 
insert the following clause:

                  Publications and Publicity (DEC 2015)

    (a) Unless otherwise specified in this contract, the Contractor may 
publish the results of its work under this contract. The Contractor 
shall promptly send a copy of each article submitted for publication to 
the Contracting Officer's Representative. The Contractor shall also 
inform the Contracting Officer's Representative when the article or 
other publication is published, and furnish a copy of it as finally 
published.
    (b) Unless authorized in writing by the Contracting Officer, the 
Contractor shall not display the HHS logo including Operating Division 
or Staff Division logos on any publications.
    (c) The Contractor shall not reference the product(s) or service(s) 
awarded under this contract in commercial advertising, as defined in FAR 
31.205-1, in any manner which states or implies HHS approval or 
endorsement of the product(s) or service(s) provided.
    (d) The contractor shall include this clause, including this section 
(d) in all subcontracts where the subcontractor may propose publishing 
the results of its work under the subcontract.

                             (End of clause)



352.231-70  Salary Rate Limitation.

    As prescribed in HHSAR 331.101-70(b), the Contracting Officer shall 
insert the following clause:

                    Salary Rate Limitation (DEC 2015)

    (a) The Contractor shall not use contract funds to pay the direct 
salary of an individual at a rate in excess of the Federal Executive 
Schedule Level II in effect on the date the funding was obligated.
    (b) For purposes of the salary rate limitation, the terms ``direct 
salary,'' ``salary,'' and ``institutional base salary,'' have the same 
meaning and are collectively referred to as ``direct salary,'' in this 
clause. An individual's direct salary is the annual compensation that 
the Contractor pays for an individual's direct effort (costs) under the 
contract. Direct salary excludes any income that an individual may be 
permitted to earn outside of duties to the Contractor. Direct salary 
also excludes fringe benefits, overhead, and general and administrative 
expenses (also referred to as indirect costs or facilities and 
administrative costs). The salary rate limitation does not restrict the 
salary that an organization may pay an individual working under a 
Department of Health and Human Services contract or order; it merely 
limits the portion of that salary that may be paid with contract funds.
    (c) The salary rate limitation also applies to individuals under 
subcontracts.
    (d) If this is a multiple-year contract or order, it may be subject 
to unilateral modification by the Contracting Officer to ensure that an 
individual is not paid at a rate that exceeds the salary rate limitation 
provision established in the HHS appropriations act used to fund this 
contract.
    (e) See the salaries and wages pay tables on the Office of Personnel 
Management Web site for Federal Executive Schedule salary levels.

[[Page 58]]

                             (End of clause)



352.232-70  Incremental Funding.

    As prescribed in HHSAR 332.706-2(b), the Contracting Officer shall 
insert the provision provided below in all solicitations when a cost-
reimbursement contract for severable services using incremental funding 
is contemplated.

                     Incremental Funding (DEC 2015)

    The Government intends to negotiate and award a cost-reimbursement 
contract using incremental funding as described in the clause at FAR 
52.232-22, ``Limitation of Funds''. The initial obligation of funds 
under the contract is expected to cover [insert the appropriate 
increment of performance]. The Government intends to obligate additional 
funds up to and including the full estimated cost of the contract for 
the remaining periods of performance by unilateral contract 
modification. However, the Government is not required to reimburse the 
Contractor for costs incurred in excess of the total amount obligated, 
nor is the Contractor required to perform beyond the level supported by 
the total amount obligated.

                           (End of provision)



352.233-70  Choice of Law (Overseas).

    As prescribed in HHSAR 333.215-70(a), the Contracting Officer shall 
insert the following clause:

                   Choice of Law (Overseas) (DEC 2015)

    This contract shall be construed in accordance with the substantive 
laws of the United States of America. By the execution of this contract, 
the Contractor expressly agrees to waive any rights to invoke the 
jurisdiction of local national courts where this contract is performed 
and agrees to accept the exclusive jurisdiction of the United States 
Civilian Board of Contract Appeals or the United States Court of Federal 
Claims for hearing and determination of any and all disputes that may 
arise under the Disputes clause of this contract.

                             (End of clause)



352.233-71  Litigation and Claims.

    As prescribed in HHSAR 333.215-70(b), the Contracting Officer shall 
insert the following clause:

                    Litigation and Claims (Dec 2015)

    (a) The Contractor shall provide written notification immediately to 
the Contracting Officer of any action, including any proceeding before 
an administrative agency, filed against the Contractor arising out of 
the performance of this contract, including, but not limited to the 
performance of any subcontract hereunder; and any claim against the 
Contractor the cost and expense of which is allowable under the clause 
entitled ``Allowable Cost and Payment.''
    (b) Except as otherwise directed by the Contracting Officer, the 
Contractor shall furnish immediately to the Contracting Officer copies 
of all pertinent documents received by the Contractor with respect to 
such action or claim. To the extent not in conflict with any applicable 
policy of insurance, the Contractor may, with the Contracting Officer's 
approval, settle any such action or claim. If required by the 
Contracting Officer, the Contractor shall effect an assignment and 
subrogation in favor of the Government of all the Contractor's rights 
and claims (except those against the Government) arising out of any such 
action or claim against the Contractor; and authorize representatives of 
the Government to settle or defend any such action or claim and to 
represent the Contractor in, or to take charge of, any action.
    (c) If the Government undertakes a settlement or defense of an 
action or claim, the Contractor shall furnish all reasonable assistance 
in effecting a settlement or asserting a defense. Where an action 
against the Contractor is not covered by a policy of insurance, the 
Contractor shall, with the approval of the Contracting Officer, proceed 
with the defense of the action in good faith. The Government shall not 
be liable for the expense of defending any action or for any costs 
resulting from the loss thereof to the extent that the Contractor would 
have been compensated by insurance which was required by other terms or 
conditions of this contract, by law or regulation, or by written 
direction of the Contracting Officer, but which the Contractor failed to 
secure through its own fault or negligence. In any event, unless 
otherwise expressly provided in this contract, the Government shall not 
reimburse or indemnify the Contractor for any liability loss, cost, or 
expense, which the Contractor may incur or be subject to by reason of 
any loss, injury or damage, to the person or to real or personal 
property of any third parties as may accrue during, or arise from, the 
performance of this contract.

                             (End of clause)



352.236-70  Design-Build Contracts.

    As prescribed in HHSAR 336.570(a), the Contracting Officer shall 
insert the following clause:

                    Design-Build Contracts (Dec 2015)

    (a) General. (1) The contract constitutes and defines the entire 
agreement between the Contractor and the Government. This

[[Page 59]]

contract includes the standard or special contract clauses and schedules 
included at the time of award. This contract incorporates by reference:
    (i) The solicitation in its entirety (with the exception of 
instructions to offerors and evaluation criteria which do not become 
part of the award document);
    (ii) The specifications and statement of work;
    (iii) All drawings, cuts and illustrations, included in the 
solicitation and any amendments during all proposal phases leading up to 
award;
    (iv) Exhibits and other attachments; and
    (v) The successful Offeror's accepted proposal.
    (2) In the event of conflict or inconsistency between any of the 
requirements of the various portions of this contract, precedence shall 
be given in the following order:
    (i) Betterments: Any portions of the Offeror's proposal which exceed 
the requirements of the solicitation and which go beyond repair and 
improve the value of the property.
    (ii) The contract clauses and schedules included during the 
solicitation or at the time of award.
    (iii) All requirements (other than betterments) of the accepted 
proposal.
    (iv) Any design products, including but not limited to plans, 
specifications, engineering studies and analyses, shop drawings, 
equipment installation drawings, etc. These are ``deliverables'' under 
the contract and are not part of the contract itself.
    (3) Design products must conform to all requirements of the 
contract, in the order of precedence stated here.
    (b) Responsibility of the contractor for design. (1) The Contractor 
shall be responsible for the professional quality, technical accuracy, 
and the coordination of all designs, drawings, specifications, and other 
non-construction services furnished by the Contractor under this 
contract. The Contractor shall, without additional compensation, correct 
or revise any errors or deficiency in its designs, drawings, 
specifications, and other non-construction services and perform any 
necessary rework or modifications, including any damage to real or 
personal property, resulting from the design error or omission.
    (2) Neither the Government's review, approval or acceptance of, nor 
payment for, the services required under this contract shall be 
construed to operate as a waiver of any rights under this contract or of 
any cause of action arising out of the performance of this contract. The 
Contractor shall be and remain liable to the Government in accordance 
with applicable law for all damages to the Government caused by the 
Contractor's negligent performance of any of these services furnished 
under this contract.
    (3) The rights and remedies of the Government provided for under 
this contract are in addition to any other rights and remedies provided 
by law.
    (4) If the Contractor is comprised of more than one legal entity 
each such entity shall be jointly and severally liable with respect to 
all rights and remedies of the Government.
    (c) Sequence of design--construction. (1) After receipt of the 
Contract Award, the Contractor shall initiate design, comply with all 
design submission requirements, and obtain Government review of each 
submission. No construction may be started until the Government reviews 
the Final Design submission and determines it satisfactory for purposes 
of beginning construction. The Contracting Officer will notify the 
Contractor when the design is cleared for construction. The Government 
will not grant any time extension for any design resubmittal required 
when, in the opinion of the Contracting Officer, the initial submission 
failed to meet the minimum quality requirements as set forth in the 
Contract.
    (2) If the Government allows the Contractor to proceed with limited 
construction based on pending minor revisions to the reviewed Final 
Design submission, no payment will be made for any completed or in-
progress construction related to the pending revisions until they are 
completed, resubmitted, and are satisfactory to the Government.
    (3) No payment will be made for any completed or in-progress 
construction until all required submittals have been made, reviewed, and 
are satisfactory to the Government.
    (d) Constructor's role during design. The Contractor's construction 
management key personnel shall be actively involved during the design 
process to effectively integrate the design and construction 
requirements of this contract. In addition to the typical required 
construction activities, the constructor's involvement includes, but is 
not limited to actions such as: integrating the design schedule into the 
Master Schedule to maximize the effectiveness of fast-tracking design 
and construction (within the limits, if any, allowed in the contract), 
ensuring constructability and economy of the design, integrating the 
shop drawing and installation drawing process into the design, executing 
the material and equipment acquisition programs to meet critical 
schedules, effectively interfacing the construction Quality Control (QC) 
program with the design QC program, and maintaining and providing the 
design team with accurate, up-to-date redline and as-built 
documentation. The Contractor shall require and manage the active 
involvement of key trade subcontractors in the above activities.

[[Page 60]]

    (e) Preconstruction conference. (1) A preconstruction conference 
will be arranged by the Contracting Officer after award of contract and 
before commencement of work. The Contracting Officer or designated 
representative will notify the Contractor of the time, date, and 
location for the meeting. At this conference, the Contractor shall be 
oriented with respect to Government procedures and line of authority, 
contractual, administrative, and construction matters.
    (2) The Contractor shall bring to this conference, in completed 
form, a Certificate of Insurance, plus the following items in either 
completed or draft form:
    (i) Accident Prevention Plan;
    (ii) Quality Control Plan;
    (iii) Letter Appointing Superintendent;
    (iv) Transmittal Register;
    (v) Power of Attorney and Certified Copy of Resolution;
    (vi) Network Analysis System, (when identified in the contract 
schedule as applicable);
    (vii) List of Subcontractors;
    (viii) SF 1413;
    (ix) Performance and Payment Bonds; and
    (x) Schedule of Values.
    (3) A letter of record will be written documenting all items 
discussed at the conference, and a copy will be furnished by the 
Contracting Officer to all in attendance.
    (f) Payment for design under fixed-price design-build contracts. (1) 
The Contracting Officer may approve progress payments for work performed 
during the project design phase up to the maximum amount of __ 
(Contracting Officer to insert percent figure. If none stated, the 
amount is four (4) percent) percent of the contract price.
    (2) Contractor invoices for payment must be accompanied by 
satisfactory documentation supporting the amounts for which payments are 
requested. Progress payments approved by the Contracting Officer during 
the project design phase in no way constitute an acceptance of 
functional and aesthetic design elements nor acceptance of a final 
settlement amount in the event of a buy-out nor a waiver of any 
contractual requirements.
    (g) Unscheduled jobsite shutdowns. Due to security reasons during 
the life of this contract the Government may on an unscheduled basis 
require the contractor to shut down its jobsite for 2 days per year at 
no additional cost. This shall not constitute a suspension of work under 
FAR 52.242-14, Suspension of Work

                             (End of clause)

    Alternate I (DEC 2015).
    When Fast Track procedures are being used, replace paragraph (c) of 
the basic clause with the following:
    (c) Sequence of design build. (1) After receipt of the Contract 
Award the Contractor shall initiate design, comply with all design 
submissions requirements and obtain Government review of each 
submission. The contractor may begin construction on portions of the 
work for which the Government has reviewed the final design submission 
and has determined satisfactory for purposes of beginning construction. 
The Contracting Officer will notify the Contractor when the design is 
cleared for construction. The Government will not grant any time 
extension for any design resubmittal required when, in the opinion of 
the Contracting Officer, the initial submission failed to meet the 
minimum quality requirements as set forth in the Contract.
    (2) If the Government allows the Contractor to proceed with the 
construction based on pending minor revisions to the reviewed Final 
Design submission, no payment will be made for any in-place construction 
related to the pending revisions until they are completed, resubmitted, 
and are satisfactory to the Government.
    (3) No payment will be made for any in-place construction until all 
required submittals have been made, reviewed, and are satisfactory to 
the Government.

                             (End of clause)



352.237-70  Pro-Children Act.

    As prescribed in HHSAR 337.103(d)(1), the Contracting Officer shall 
insert the following clause:

                       Pro-Children Act (DEC 2015)

    (a) Public Law 103-227, Title X, Part C, also known as the Pro-
Children Act of 1994 (Act), 20 U.S.C. 7183, imposes restrictions on 
smoking in facilities where certain federally funded children's services 
are provided. The Act prohibits smoking within any indoor facility (or 
portion thereof), whether owned, leased, or contracted for, that is used 
for the routine or regular provision of: (i) Kindergarten, elementary, 
or secondary education or library services or (ii) health or day care 
services that are provided to children under the age of 18. The 
statutory prohibition also applies to indoor facilities that are 
constructed, operated, or maintained with Federal funds.
    (b) By acceptance of this contract or order, the Contractor agrees 
to comply with the requirements of the Act. The Act also applies to all 
subcontracts awarded under this contract for the specified children's 
services. Accordingly, the Contractor shall ensure that each of its 
employees, and any subcontractor staff, is made aware of, understands, 
and complies with the provisions of the Act. Failure to comply with the 
Act may result in the imposition of a civil monetary penalty in an 
amount not to exceed $1,000 for each violation and/or the imposition of 
an administrative compliance order on the responsible

[[Page 61]]

entity. Each day a violation continues constitutes a separate violation.



352.237-71  Crime Control Act--Reporting of Child Abuse.

    As prescribed in HHSAR 337.103(d)(2), the Contracting Officer shall 
insert the following clause:

     Crime Control Act of 1990--Reporting of Child Abuse (DEC 2015)

    (a) Public Law 101-647, also known as the Crime Control Act of 1990 
(Act), imposes responsibilities on certain individuals who, while 
engaged in a professional capacity or activity, as defined in the Act, 
on Federal land or in a federally-operated (or contracted) facility, 
learn of facts that give the individual reason to suspect that a child 
has suffered an incident of child abuse.
    (b) The Act designates ``covered professionals'' as those persons 
engaged in professions and activities in eight different categories 
including, but not limited to, teachers, social workers, physicians, 
dentists, medical residents or interns, hospital personnel and 
administrators, nurses, health care practitioners, chiropractors, 
osteopaths, pharmacists, optometrists, podiatrists, emergency medical 
technicians, ambulance drivers, alcohol or drug treatment personnel, 
psychologists, psychiatrists, mental health professionals, child care 
workers and administrators, and commercial film and photo processors. 
The Act defines the term ``child abuse'' as the physical or mental 
injury, sexual abuse or exploitation, or negligent treatment of a child.
    (c) Accordingly, any person engaged in a covered profession or 
activity under an HHS contract or subcontract, regardless of the purpose 
of the contract or subcontract, shall immediately report a suspected 
child abuse incident in accordance with the provisions of the Act. If a 
child is suspected of being harmed, the appropriate State Child Abuse 
Hotline, local child protective services (CPS), or law enforcement 
agency shall be contacted. For more information about where and how to 
file a report, the Childhelp USA, National Child Abuse Hotline (1-800-4-
A-CHILD) shall be called. Any covered professional failing to make a 
timely report of such incident shall be guilty of a Class B misdemeanor.
    (d) By acceptance of this contract or order, the Contractor agrees 
to comply with the requirements of the Act. The Act also applies to all 
applicable subcontracts awarded under this contract. Accordingly, the 
Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understands, and complies with 
the provisions of the Act.

                             (End of clause)



352.237-72  Crime Control Act--Requirement for Background Checks.

    As prescribed in HHSAR 337.103(d)(3), the Contracting Officer shall 
insert the following clause:

 Crime Control Act of 1990--Requirement for Background Checks (DEC 2015)

    (a) Public Law 101-647, also known as the Crime Control Act of 1990 
(Act), requires that all individuals involved with the provision of 
child care services to children under the age of 18 undergo a criminal 
background check. ``Child care services'' include, but are not limited 
to, social services, health and mental health care, child (day) care, 
education (whether or not directly involved in teaching), and 
rehabilitative programs. Any conviction for a sex crime, an offense 
involving a child victim, or a drug felony, may be grounds for denying 
employment or for dismissal of an employee providing any of the services 
listed above.
    (b) The Contracting Officer will provide the necessary information 
to the Contractor regarding the process for obtaining the background 
check. The Contractor may hire a staff person provisionally prior to the 
completion of a background check, if at all times prior to the receipt 
of the background check during which children are in the care of the 
newly-hired person, the person is within the sight and under the 
supervision of a previously investigated staff person.
    (c) By acceptance of this contract or order, the Contractor agrees 
to comply with the requirements of the Act. The Act also applies to all 
applicable subcontracts awarded under this contract. Accordingly, the 
Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understands, and complies with 
the provisions of the Act.

                             (End of clause)



352.237-73  Indian Child Protection and Family Violence Act.

    As prescribed in HHSAR 337.103(d)(4) the Contracting Officer shall 
insert the following clause:

       Indian Child Protection and Family Violence Act (DEC 2015)

    (a) This contract is subject to the Indian Child Protection and 
Family Violence Act, Public Law 101-630 (25 U.S.C. 3201 et seq.) The 
duties and responsibilities required by this contract may involve 
regular contact with or control over Indian children. Public Law 101-630 
prohibits employment, including Personal Service Contracts, with anyone 
who has been convicted of any crime of violence.

[[Page 62]]

Any such conviction should immediately be brought to the attention of 
the Contracting Officer. The contractor will be subject to a character 
investigation, conducted by the Indian Health Service, Office of Human 
Resources. Until such time as the contractor has been notified of 
completion of the investigation, the contractor shall have no 
unsupervised contact with Indian children. In order to initiate this 
background investigation, the contractor must provide information as 
required in this contract or as directed by the Contracting Officer.
    (b) As a prerequisite to providing services under this contract, the 
Contractor is required to complete and sign the declaration found in 
Section J of this contract.

                             (End of clause)



352.237-74  Non-Discrimination in Service Delivery.

    As prescribed in HHSAR 337.103(e), the Contracting Officer shall 
insert the following clause in solicitations and contracts:

            Non-Discrimination In Service Delivery (DEC 2015)

    It is the policy of the Department of Health and Human Services that 
no person otherwise eligible will be excluded from participation in, 
denied the benefits of, or subjected to discrimination in the 
administration of HHS programs and services based on non-merit factors 
such as race, color, national origin, religion, sex, gender identity, 
sexual orientation, or disability (physical or mental). By acceptance of 
this contract, the contractor agrees to comply with this policy in 
supporting the program and in performing the services called for under 
this contract. The contractor shall include this clause in all sub-
contracts awarded under this contract for supporting or performing the 
specified program and services. Accordingly, the contractor shall ensure 
that each of its employees, and any sub-contractor staff, is made aware 
of, understands, and complies with this policy.

                             (End of clause)



352.237-75  Key Personnel.

    As prescribed in HHSAR 337.103(f), the Contracting Officer shall 
insert the following clause:

                        Key Personnel (DEC 2015)

    The key personnel specified in this contract are considered to be 
essential to work performance. At least 30 days prior to the contractor 
voluntarily diverting any of the specified individuals to other programs 
or contracts the Contractor shall notify the Contracting Officer and 
shall submit a justification for the diversion or replacement and a 
request to replace the individual. The request must identify the 
proposed replacement and provide an explanation of how the replacement's 
skills, experience, and credentials meet or exceed the requirements of 
the contract (including, when applicable, Human Subjects Testing 
requirements). If the employee of the contractor is terminated for cause 
or separates from the contractor voluntarily with less than thirty days 
notice, the Contractor shall provide the maximum notice practicable 
under the circumstances. The Contractor shall not divert, replace, or 
announce any such change to key personnel without the written consent of 
the Contracting Officer. The contract will be modified to add or delete 
key personnel as necessary to reflect the agreement of the parties.

                             (End of clause)



352.239-73  Electronic Information and Technology Accessibility Notice.

    (a) As prescribed in HHSAR 339.203-70(a), the Contracting Officer 
shall insert the following provision:

  Electronic and Information Technology Accessibility Notice (Dec 2015)

    (a) Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), 
as amended by the Workforce Investment Act of 1998 and the Architectural 
and Transportation Barriers Compliance Board Electronic and Information 
(EIT) Accessibility Standards (36 CFR part 1194), require that when 
Federal agencies develop, procure, maintain, or use electronic and 
information technology, Federal employees with disabilities have access 
to and use of information and data that is comparable to the access and 
use by Federal employees who are not individuals with disabilities, 
unless an undue burden would be imposed on the agency. Section 508 also 
requires that individuals with disabilities, who are members of the 
public seeking information or services from a Federal agency, have 
access to and use of information and data that is comparable to that 
provided to the public who are not individuals with disabilities, unless 
an undue burden would be imposed on the agency.
    (b) Accordingly, any offeror responding to this solicitation must 
comply with established HHS EIT accessibility standards. Information 
about Section 508 is available at http://www.hhs.gov/web/508. The 
complete text of the Section 508 Final Provisions can be accessed at 
http://www.access-board.gov/guidelines-and-standards/communications-and-
it/about-the-section-508-standards.
    (c) The Section 508 accessibility standards applicable to this 
solicitation are stated in

[[Page 63]]

the clause at 352.239-74, Electronic and Information Technology 
Accessibility.
    In order to facilitate the Government's determination whether 
proposed EIT supplies meet applicable Section 508 accessibility 
standards, offerors must submit an HHS Section 508 Product Assessment 
Template, in accordance with its completion instructions. The purpose of 
the template is to assist HHS acquisition and program officials in 
determining whether proposed EIT supplies conform to applicable Section 
508 accessibility standards. The template allows offerors or developers 
to self-evaluate their supplies and document--in detail--whether they 
conform to a specific Section 508 accessibility standard, and any 
underway remediation efforts addressing conformance issues. Instructions 
for preparing the HHS Section 508 Evaluation Template are available 
under Section 508 policy on the HHS Web site http://www.hhs.gov/web/508.
    In order to facilitate the Government's determination whether 
proposed EIT services meet applicable Section 508 accessibility 
standards, offerors must provide enough information to assist the 
Government in determining that the EIT services conform to Section 508 
accessibility standards, including any underway remediation efforts 
addressing conformance issues.
    (d) Respondents to this solicitation must identify any exception to 
Section 508 requirements. If a offeror claims its supplies or services 
meet applicable Section 508 accessibility standards, and it is later 
determined by the Government, i.e., after award of a contract or order, 
that supplies or services delivered do not conform to the described 
accessibility standards, remediation of the supplies or services to the 
level of conformance specified in the contract will be the 
responsibility of the Contractor at its expense.

                           (End of provision)



352.239-74  Electronic and Information Technology Accessibility.

    As prescribed in HHSAR 339.203-70(b), insert the following clause:

     Electronic and Information Technology Accessibility (DEC 2015)

    (a) Pursuant to Section 508 of the Rehabilitation Act of 1973 (29 
U.S.C. 794d), as amended by the Workforce Investment Act of 1998, all 
electronic and information technology (EIT) supplies and services 
developed, acquired, or maintained under this contract or order must 
comply with the ``Architectural and Transportation Barriers Compliance 
Board Electronic and Information Technology (EIT) Accessibility 
Standards'' set forth by the Architectural and Transportation Barriers 
Compliance Board (also referred to as the ``Access Board'') in 36 CFR 
part 1194. Information about Section 508 is available at http://
www.hhs.gov/web/508. The complete text of Section 508 Final Provisions 
can be accessed at http://www.access-board.gov/guidelines-and-standards/
communications-and-it/about-the-section-508-standards.
    (b) The Section 508 accessibility standards applicable to this 
contract or order are identified in the Statement of Work or 
Specification or Performance Work Statement. The contractor must provide 
any necessary updates to the submitted HHS Product Assessment 
Template(s) at the end of each contract or order exceeding the 
simplified acquisition threshold (see FAR 2.101) when the contract or 
order duration is one year or less. If it is determined by the 
Government that EIT supplies and services provided by the Contractor do 
not conform to the described accessibility standards in the contract, 
remediation of the supplies or services to the level of conformance 
specified in the contract will be the responsibility of the Contractor 
at its own expense.
    (c) The Section 508 accessibility standards applicable to this 
contract are:

________________________________________________________________________
(Contract staff must list applicable standards)

    (d) In the event of a modification(s) to this contract or order, 
which adds new EIT supplies or services or revises the type of, or 
specifications for, supplies or services, the Contracting Officer may 
require that the contractor submit a completed HHS Section 508 Product 
Assessment Template and any other additional information necessary to 
assist the Government in determining that the EIT supplies or services 
conform to Section 508 accessibility standards. Instructions for 
documenting accessibility via the HHS Section 508 Product Assessment 
Template may be found under Section 508 policy on the HHS Web site: 
(http://www.hhs.gov/web/508). If it is determined by the Government that 
EIT supplies and services provided by the Contractor do not conform to 
the described accessibility standards in the contract, remediation of 
the supplies or services to the level of conformance specified in the 
contract will be the responsibility of the Contractor at its own 
expense.
    (e) If this is an Indefinite Delivery contract, a Blanket Purchase 
Agreement or a Basic Ordering Agreement, the task/delivery order 
requests that include EIT supplies or services will define the 
specifications and accessibility standards for the order. In those 
cases, the Contractor may be required to provide a completed HHS Section 
508 Product Assessment Template and any other additional information 
necessary to assist the Government in determining that the EIT supplies 
or services conform to Section 508 accessibility standards. Instructions 
for documenting accessibility via the HHS Section

[[Page 64]]

508 Product Assessment Template may be found at http://www.hhs.gov/web/
508. If it is determined by the Government that EIT supplies and 
services provided by the Contractor do not conform to the described 
accessibility standards in the provided documentation, remediation of 
the supplies or services to the level of conformance specified in the 
contract will be the responsibility of the Contractor at its own 
expense.

                             (End of clause)



352.270-1--352.270-3  [Reserved]



352.270-4a  Notice to Offerors, Protection of Human Subjects.

    As prescribed in HHSAR 370.303(a), the Contracting Officer shall 
insert the following provision:

       Notice to Offerors, Protection of Human Subjects (DEC 2015)

    (a) The Department of Health and Human Services (HHS) regulations 
for the protection of human subjects, 45 CFR part 46, are available on 
the Office for Human Research Protections (OHRP) Web site at: http://
www.hhs.gov/ohrp/index.html.
    These regulations provide a systematic means, based on established 
ethical principles, to safeguard the rights and welfare of human 
subjects participating in research activities supported or conducted by 
HHS.
    (b) The regulations define a human subject as a living individual 
about whom an investigator (whether professional or student) conducting 
research obtains data or identifiable public information through 
intervention or interaction with the individual, or identifiable private 
information. In most cases, the regulations extend to the use of human 
organs, tissue, and body fluids from individually identifiable human 
subjects as well as to graphic, written, or recorded information derived 
from individually identifiable human subjects. 45 CFR part 46 does not 
directly regulate the use of autopsy materials; instead, applicable 
state and local laws govern their use.
    (c) Activities which involve human subjects in one or more of the 
categories set forth in 45 CFR 46.101(b)(1)-(6) are exempt from 
complying with 45 CFR part 46. See http://www.hhs.gov/ohrp/
humansubjects/guidance/45cfr46.html.
    (d) Inappropriate designations of the noninvolvement of human 
subjects or of exempt categories of research in a project may result in 
delays in the review of a proposal.
    (e) In accordance with 45 CFR part 46, offerors considered for award 
shall file an acceptable Federal-wide Assurance (FWA) of compliance with 
OHRP specifying review procedures and assigning responsibilities for the 
protection of human subjects. The FWA is the only type of assurance that 
OHRP accepts or approves. The initial and continuing review of a 
research project by an institutional review board shall ensure that: The 
risks to subjects are minimized; risks to subjects are reasonable in 
relation to anticipated benefits, if any, to subjects, and the 
importance of the knowledge that may reasonably be expected to result; 
selection of subjects is equitable; and informed consent will be 
obtained and documented by methods that are adequate and appropriate. 
Depending on the nature of the research, additional requirements may 
apply; see http://www.hhs.gov/ohrp/humansubjects/guidance/
45cfr46.html46.111 for additional requirements regarding initial and 
continuing review. HHS regulations for the protection of human subjects 
(45 CFR part 46), information regarding OHRP registration and assurance 
requirements/processes, and OHRP contact information is available at the 
OHRP Web site (at http://www.hhs.gov/ohrp/assurances/index.html).
    (f) Offerors may consult with OHRP only for general advice or 
guidance concerning either regulatory requirements or ethical issues 
pertaining to research involving human subjects. ONLY the contracting 
officer may offer information concerning a solicitation.
    (g) The offeror shall document in its proposal the approved FWA from 
OHRP, related to the designated Institutional Review Board (IRB) 
reviewing and overseeing the research. If the offeror does not have an 
approved FWA from OHRP, the offeror must obtain an FWA before the 
deadline for proposal submission. When possible, the offeror shall also 
certify the IRB's review and approval of the research. If the offeror 
cannot obtain this certification by the time of proposal submission they 
must include an explanation in their proposal. Never conduct research 
covered by 45 CFR part 46 prior to receiving certification of the 
research's review and approval by the IRB.

                           (End of provision)

    Alternate I (DEC 2015).
    As prescribed in HHSAR 370.303(a), the Contracting Officer shall 
substitute the following paragraph (g) for paragraph (g) of the basic 
clause.
    (g) The offeror's proposal shall document that it has an approved or 
active FWA from OHRP, related to the designated IRB reviewing and 
overseeing the research. When possible the offeror shall also certify 
the IRB has reviewed and approved the research. If the offeror cannot 
make this certification at the time of proposal submission, its proposal 
must include an explanation. Never conduct research covered by 45 CFR 
part 46 prior to receiving certification of the research's review and 
approval by the IRB.

[[Page 65]]

    If the offeror does not have an active FWA from OHRP, the offeror 
shall take all necessary steps to obtain an FWA prior to the deadline 
for proposal submission. If the offeror cannot obtain an FWA before the 
proposal submission date, the proposal shall indicate the steps/actions 
the offeror will take to obtain OHRP approval within (Contracting 
Officer must insert a time period in which the FWA must be obtained). 
Upon obtaining FWA approval, submit the approval notice to the 
Contracting Officer.



352.270-4b  Protection of Human Subjects.

    As prescribed in HHSAR 370.304(a), the Contracting Officer shall 
insert the following clause:

                 Protection of Human Subjects (DEC 2015)

    (a) The Contractor agrees that the rights and welfare of human 
subjects involved in research under this contract shall be protected in 
accordance with 45 CFR part 46 and with the Contractor's current 
Federal-wide Assurance (FWA) on file with the Office for Human Research 
Protections (OHRP), Department of Health and Human Services. The 
Contractor further agrees to provide certification at least annually 
that the Institutional Review Board has reviewed and approved the 
procedures, which involve human subjects in accordance with 45 CFR part 
46 and the Assurance of Compliance.
    (b) The Contractor shall bear full responsibility for the 
performance of all work and services involving the use of human subjects 
under this contract and shall ensure that work is conducted in a proper 
manner and as safely as is feasible. The parties hereto agree that the 
Contractor retains the right to control and direct the performance of 
all work under this contract. Nothing in this contract shall create an 
agency or employee relationship between the Government and the 
Contractor, or any subcontractor, agent or employee of the Contractor, 
or any other person, organization, institution, or group of any kind 
whatsoever. The Contractor agrees that it has entered into this contract 
and will discharge its obligations, duties, and undertakings and the 
work pursuant thereto, whether requiring professional judgment or 
otherwise, as an independent Contractor without creating liability on 
the part of the Government for the acts of the Contractor or its 
employees.
    (c) Contractors involving other agencies or institutions in 
activities considered to be engaged in research involving human subjects 
must ensure that such other agencies or institutions obtain their own 
FWA if they are routinely engaged in research involving human subjects 
or ensure that such agencies or institutions are covered by the 
Contractors' FWA via designation as agents of the institution or via 
individual investigator agreements (see OHRP Web site at: http://
www.hhs.gov/ohrp/policy/guidanceonalternativetofwa.pdf).
    (d) If at any time during the performance of this contract the 
Contractor is not in compliance with any of the requirements and or 
standards stated in paragraphs (a) and (b) above, the Contracting 
Officer may immediately suspend, in whole or in part, work and further 
payments under this contract until the Contractor corrects the 
noncompliance. The Contracting Officer may communicate the notice of 
suspension by telephone with confirmation in writing. If the Contractor 
fails to complete corrective action within the period of time designated 
in the Contracting Officer's written notice of suspension, the 
Contracting Officer may, after consultation with OHRP, terminate this 
contract in whole or in part.

                             (End of clause)



352.270-5a  Notice to Offerors of Requirement for Compliance with the
Public Health Service Policy on Humane Care and Use of Laboratory
Animals.

    As prescribed in HHSAR 370.403(a), the Contracting Officer shall 
insert the following provision:

Notice to Offerors of Requirement for Compliance with the Public Health 
 Service Policy on Humane Care and Use of Laboratory Animals (DEC 2015)

    The Public Health Service (PHS) Policy on Humane Care and Use of 
Laboratory Animals (PHS Policy) establishes a number of requirements for 
research activities involving animals. Before awarding a contract to an 
offeror, the organization shall file, with the Office of Laboratory 
Animal Welfare (OLAW), National Institutes of Health (NIH), a written 
Animal Welfare Assurance (Assurance) which commits the organization to 
comply with the provisions of the PHS Policy, the Animal Welfare Act, 
and the Guide for the Care and Use of Laboratory Animals (National 
Academy Press, Washington, DC). In accordance with the PHS Policy, 
offerors must establish an Institutional Animal Care and Use Committee 
(IACUC), qualified through the experience and expertise of its members, 
to oversee the institution's animal program, facilities, and procedures. 
Offerors must provide verification of IACUC approval prior to receiving 
an award involving live vertebrate animals. No award involving the use 
of animals shall be made unless OLAW approves the Assurance and 
verification of IACUC approval for the proposed animal activities has 
been provided to the Contracting Officer. Prior to award, the 
Contracting Officer will notify Contractor(s) selected for

[[Page 66]]

projects involving live vertebrate animals of the Assurance and 
verification of IACUC approval requirement. The Contracting Officer will 
request that OLAW negotiate an acceptable Assurance with those 
Contractor(s) and request verification of IACUC approval. For further 
information, contact OLAW at NIH, 6705 Rockledge Drive, RKL1, Suite 360, 
MSC 7982 Bethesda, Maryland 20892-7982 (Email: [email protected]; Phone: 
301-496-7163).

                           (End of provision)



352.270-5b  Care of Live Vertebrate Animals.

    As prescribed in HHSAR 370.404, the Contracting Officer shall insert 
the following clause:

               Care of Live Vertebrate Animals (DEC 2015)

    (a) Before undertaking performance of any contract involving animal-
related activities where the species is regulated by the United Sates 
Department of Agriculture (USDA), the Contractor shall register with the 
Secretary of Agriculture of the United States in accordance with 7 
U.S.C. 2136 and 9 CFR 2.25 through 2.28. The Contractor shall furnish 
evidence of the registration to the Contracting Officer.
    (b) The Contractor shall acquire vertebrate animals used in research 
from a dealer licensed by the Secretary of Agriculture under 7 U.S.C. 
2133 and 9 CFR 2.1-2.11, or from a source that is exempt from licensing 
under those sections.
    (c) The Contractor agrees that the care, use, and intended use of 
any live vertebrate animals in the performance of this contract shall 
conform with the Public Health Service (PHS) Policy on Humane Care of 
Use of Laboratory Animals (PHS Policy), the current Animal Welfare 
Assurance (Assurance), the Guide for the Care and Use of Laboratory 
Animals (National Academy Press, Washington, DC) and the pertinent laws 
and regulations of the United States Department of Agriculture (see 7 
U.S.C. 2131 et seq. and 9 CFR subchapter A, Parts 1-4). In case of 
conflict between standards, the more stringent standard shall govern.
    (d) If at any time during performance of this contract, the 
Contracting Officer determines, in consultation with the Office of 
Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), 
that the Contractor is not in compliance with any of the requirements 
and standards stated in paragraphs (a) through (c) above, the 
Contracting Officer may immediately suspend, in whole or in part, work 
and further payments under this contract until the Contractor corrects 
the noncompliance. Notice of the suspension may be communicated by 
telephone and confirmed in writing. If the Contractor fails to complete 
corrective action within the period of time designated in the 
Contracting Officer's written notice of suspension, the Contracting 
Officer may, in consultation with OLAW, NIH, terminate this contract in 
whole or in part, and the Contractor's name may be removed from the list 
of those contractors with Animal Welfare Assurances.
    Note: The Contractor may request registration of its facility and a 
current listing of licensed dealers from the Regional Office of the 
Animal and Plant Health Inspection Service (APHIS), USDA, for the region 
in which its research facility is located. The location of the 
appropriate APHIS Regional Office, as well as information concerning 
this program may be obtained by contacting the Animal Care Staff, USDA/
APHIS, 4700 River Road, Riverdale, Maryland 20737 (Email: 
[email protected]; Web site: (http://www.aphis.usda.gov/wps/portal/
aphis/ourfocus/animalwelfare).

                             (End of clause)



352.270-6  Restriction on Use of Human Subjects.

    As prescribed in HHSAR 370-304(b), the Contracting Officer shall 
insert the following clause:

             Restriction on Use of Human Subjects (DEC 2015)

    Pursuant to 45 CFR part 46, Protection of Human Research Subjects, 
the Contractor shall not expend funds under this award for research 
involving human subjects or engage in any human subjects research 
activity prior to the Contracting Officer's receipt of a certification 
that the research has been reviewed and approved by the Institutional 
Review Board (IRB) registered with OHRP. This restriction applies to all 
collaborating sites, whether domestic or foreign, and subcontractors. 
The Contractor must ensure compliance by collaborators and 
subcontractors.

                             (End of clause)



352.270-7--352.270-8  [Reserved]



352.270-9  Non-Discrimination for Conscience.

    As prescribed in HHSAR 370.701, the Contracting Officer shall insert 
the following provision:

              Non-Discrimination for Conscience (DEC 2015)

    (a) Section 301(d) of the United States Leadership Against HIV/AIDS, 
Tuberculosis, and Malaria Act, as amended, provides that

[[Page 67]]

an organization, including a faith-based organization, that is otherwise 
eligible to receive assistance under section 104A of the Foreign 
Assistance Act of 1961, under the United States Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Act of 2003, under the Tom Lantos and 
Henry J. Hyde United States Global Leadership Against HIV/AIDS, 
Tuberculosis, and Malaria Reauthorization Act of 2008, or under any 
amendment to the foregoing Acts for HIV/AIDS prevention, treatment, or 
care--
    (1) Shall not be required, as a condition of receiving such 
assistance, to--
    (i) Endorse or utilize a multisectoral or comprehensive approach to 
combating HIV/AIDS; or
    (ii) Endorse, utilize, make a referral to, become integrated with, 
or otherwise participate in any program or activity to which the 
organization has a religious or moral objection.
    (2) Shall not be discriminated against under the provisions of law 
in subparagraph (a) for refusing to meet any requirement described in 
paragraph (a)(1) in this solicitation.
    (b) Accordingly, an offeror who believes this solicitation contains 
work requirements requiring it endorse or utilize a multisectoral or 
comprehensive approach to combating HIV/AIDS, or endorse, utilize, make 
referral to, become integrated with, or otherwise participate in a 
program or activity to which it has a religious or moral objection, 
shall identify those work requirements it excluded in its technical 
proposal.
    (c) The Government acknowledges that an offeror has specific rights, 
as cited in paragraph (b), to exclude certain work requirements in this 
solicitation from its proposal. However, the Government reserves the 
right to not make an award to an offeror whose proposal does not comply 
with the salient work requirements of the solicitation. Any exercise of 
that Government right will be made by the Head of the Contracting 
Activity.

                           (End of provision)



352.270-10  Notice to Offerors--Protection of Human Subjects, Research
Involving Human Subjects Committee (RIHSC) Approval of Research Protocols
Required.

    As prescribed in HHSAR 370.303(d), the Contracting Officer shall 
insert the following provision:

  Notice to Offerors--Protection of Human Subjects, Research Involving 
Human Subjects Committee (RIHSC) Approval of Research Protocols Required 
                               (DEC 2015)

    (a) All Offerors proposing research expected to involve human 
subjects shall comply with the regulations set forth in 45 CFR part 46, 
and with the provisions at HHSAR 352.270-4a.
    (b) The Offeror shall have an acceptable Assurance of Compliance on 
file with the Office for Human Research Protections (OHRP), whenever it 
submits a proposal to the FDA for research expected to involve human 
subjects. Direct questions regarding Federal-wide Assurance to OHRP. The 
Offeror's proposal shall include a copy of the acceptable Assurance of 
Compliance.
    (c) After the contract has been awarded, the Contractor shall take 
the following actions:
    (1) The Institutional Review Board (IRB) specified in the Offeror's 
Assurance of Compliance, hereafter referred to as ``the local IRB,'' 
shall review the proposed research protocol. A letter from the local IRB 
stating that the proposed research protocol has been reviewed and 
approved, and thus adequately protects the rights and welfare of human 
subjects involved, or a letter stating that the proposed research is 
exempt under 45 CFR 46.101(b) shall be submitted to the Contracting 
Officer.
    (2) Upon award, the successful Offeror, hereafter ``the 
Contractor,'' shall submit its proposed research protocol to the FDA's 
Research Involving Human Subjects Committee (RIHSC). The RIHSC or its 
designee will review and approve the research protocol to assure it 
adequately protects the rights and welfare of human subjects involved. 
The RIHSC or designee will also determine whether the proposed research 
is exempt under 45 CFR 46.101(b). The Contractor shall submit, to the 
Contracting Officer of record, a copy of the RIHSC's or its designee's 
letter stating that it reviewed and approved the proposed research 
protocol.
    (d) The Contractor shall not advertise for, recruit, or enroll human 
subjects, or otherwise commence any research involving human subjects 
until RIHSC or its designee reviews and approves its research. The 
Contractor may begin other limited aspects of contract performance prior 
to receiving RIHSC's or designee's approval of the proposed research 
protocol. Research involving human subjects may commence immediately 
upon the Contractor's receipt of RIHSC's or designee's approval; 
however, the Contractor shall submit a copy of RIHSC's or its designee's 
approval to the Contracting Officer within three business days of its 
receipt.

[[Page 68]]

    (e) A Contractor's failure to obtain RIHSC's or its designee's 
approval of its proposed research may result in termination of its 
contract. However, failure to obtain RIHSC's or its designee's approval 
during initial review will not automatically result in termination of 
the contract. Instead, the Contractor may correct any deficiencies 
identified during the initial RIHSC or designee review and resubmit the 
proposed research protocol to RIHSC or its designee for a second review. 
The Contractor is encouraged to solicit the RIHSC's or its designee's 
input during the resubmission process.
    (f) The Contractor shall seek RIHSC's or its designee's and local 
IRB review and approval whenever making modifications, amendments or 
other changes to the research protocol. Such modifications, amendments 
and changes include, but are not limited to changes in investigators, 
informed consent forms, and recruitment advertisements. The Contractor 
may institute changes immediately after receiving both the local IRB and 
RIHSC or its designee approval (except when necessary to eliminate 
apparent immediate hazards to the subject); however, the Contractor 
shall submit a copy of the letter evidencing RIHSC's or its designee's 
approval of the proposed changes to the Contracting Officer within three 
business days of its receipt.

                           (End of provision)



352.270-11  Protection of Human Subjects--Research Involving Human 
Subjects Committee (RIHSC) Approval of Research Protocols Required.

    As prescribed in HHSAR 370.304(c), the Contracting Officer shall 
insert the following clause:

    Protection of Human Subjects--Research Involving Human Subjects 
  Committee (RIHSC) Approval of Research Protocols Required (DEC 2015)

    (a) The Contractor agrees to protect the rights and welfare of human 
subjects involved in research under this contract by complying with 45 
CFR part 46 and the clause at HHSAR 352.270-4b.
    (b) Initial proof of compliance with 45 CFR part 46 shall consist 
of:
    (1) A copy of a current Federal-wide Assurance on file with OHRP. 
The copy of a current Federal-wide Assurance shall be included with the 
Contractor's proposal;
    (2) A letter from the Contractor's local IRB (the Institutional 
Review Board (IRB) specified in the Offeror's Assurance of Compliance) 
stating that it has reviewed and approved the proposed research 
protocol. The letter from the local IRB shall be submitted to the 
Contracting Office; and
    (3) A copy of a letter from the RIHSC stating that it or its 
designee has reviewed and approved the proposed research protocol. This 
shall be submitted to the Contracting Officer within three business days 
of its issuance.
    The Contractor shall not advertise for, recruit, or enroll human 
subjects, or otherwise commence any research involving human subjects 
under this contract, until RIHSC has reviewed and approved its research. 
The Contractor may commence other limited aspects of contract 
performance prior to receiving RIHSC or its designee approval of its 
proposed research protocol. Research involving human subjects may 
commence immediately upon the Contractor's receipt of RIHSC or its 
designee approval; however, the Contractor shall submit a copy of 
RIHSC's or its designee's letter of approval to the Contracting Officer 
within three business days of its receipt.
    Failure to obtain RIHSC or its designee approval of proposed 
research protocols may result in the termination of this contract.
    (c) The Contractor further agrees that:
    (1) The Contractor will provide a letter from RIHSC, at least 
annually, stating that RIHSC or its designee has reviewed and approved 
the research protocols for research performed under this contract. This 
shall be submitted to the Contracting Officer for inclusion in the 
contract file.
    (2) The Contractor will submit all proposed modifications and 
amendments to research protocols for research performed under this 
contract to RIHSC for review and approval. Modifications and amendments 
include, but are not limited, to changes to consent forms and 
advertising materials, and the addition or deletion of investigators. 
Changes may be instituted immediately after the Contractor has received 
both the local IRB and RIHSC or its designee approval (except when 
necessary to eliminate apparent immediate hazards to the subject); 
however the Contractor shall submit a copy of the letter evidencing 
RIHSC's or its designee's approval of the proposed changes to the 
Contracting Officer within three business days of its receipt.

                             (End of clause)



352.270-12  Needle Exchange.

    As prescribed in HHSAR 370.304(d), the Contracting Officer shall 
insert the following clause:

                       Needle Exchange (DEC 2015)

    The Contractor shall not use any funds obligated under this contract 
to carry out any program of distributing sterile needles or syringes for 
the hypodermic injection of any illegal drug.

[[Page 69]]

                             (End of clause)



352.270-13  Continued Ban on Funding Abortion and Continued Ban on
Funding of Human Embryo Research.

    As prescribed in HHSAR 370.304(e), the Contracting Officer shall 
insert the following clause:

Continued Ban on Funding Abortion and Continued Ban on Funding of Human 
                       Embryo Research (DEC 2015)

    (a) The Contractor shall not use any funds obligated under this 
contract for any abortion.
    (b) The Contractor shall not use any funds obligated under this 
contract for the following:
    (1) The creation of a human embryo or embryos for research purposes; 
or
    (2) Research in which a human embryo or embryos are destroyed, 
discarded, or knowingly subjected to risk of injury of death greater 
than that allowed for research on fetuses in utero under 45 CFR part 46 
and Section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).
    (c) The term ``human embryo or embryos'' includes any organism, not 
protected as a human subject under 45 CFR part 46 as of the date of the 
enactment of this Act, that is derived by fertilization, 
parthenogenesis, cloning, or any other means from one or more human 
gametes of human diploid cells.
    (d) The Contractor shall not use any Federal funds for the cloning 
of human beings.

                             (End of clause)



PART 353_FORMS [RESERVED]--Table of Contents



Subpart 353.3 [Reserved]



                       SUBCHAPTERS I	L [RESERVED]



[[Page 70]]



                    SUBCHAPTER M_HHS SUPPLEMENTATIONS





PART 370_SPECIAL PROGRAMS AFFECTING ACQUISITION--Table of Contents



Subparts 370.1-370.2 [Reserved]

           Subpart 370.3_Acquisitions Involving Human Subjects

Sec.
370.300  Scope of subpart.
370.301  Policy.
370.302  Federal-wide Assurance (FWA).
370.303  Notice to offerors.
370.304  Contract clauses.

   Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals

370.400  Scope of subpart.
370.401  Policy.
370.402  Assurances.
370.403  Notice to offerors.
370.404  Contract clause.

Subparts 370.5-370.6 [Reserved]

           Subpart 370.7_Acquisitions under the Leadership Act

370.700  Scope of subpart.
370.701  Contract clause.
370.702  Solicitation provision.

    Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2)

    Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.

Subparts 370.1-370.2 [Reserved]



           Subpart 370.3_Acquisitions Involving Human Subjects



370.300  Scope of subpart.

    This subpart applies to all research activities conducted under 
contracts involving human subjects. See 45 CFR 46.102(d) and (f).



370.301  Policy.

    It is the Department of Health and Human Services (HHS) policy that 
the contracting officer shall not award a contract involving human 
subjects until the prospective contractor provides assurance that the 
activity will undergo initial and continuing review by an appropriate 
Institutional Review Board (IRB) in accordance with HHS regulations at 
45 CFR 46.103. The contracting officer shall require a Federal-wide 
assurance (FWA), approved by the HHS Office for Human Research 
Protections (OHRP), of each contractor, subcontractor, or institution 
engaged in human subjects research in performance of a contract. OHRP 
administers the assurance covering all HHS-supported or HHS-conducted 
activities involving human subjects.



370.302  Federal-wide Assurance (FWA).

    (a) OHRP-Approved FWAs are found at the following Web site: http://
ohrp.cit.nih.gov/search/search.aspx?styp=bsc.
    (b) Normally a contractor, subcontractor, or institution must 
provide approval of a FWA before a contract is awarded. If a contractor, 
subcontractor, or institution does not currently hold an approved FWA, 
it shall submit an explanation with its proposal and an FWA application 
prior to submitting a proposal. The contracting officer, on a case by 
case basis, may make award without an approved assurance in consultation 
with OHRP.
    (c) A contractor, subcontractor, or institution must submit all 
FWAs, including new FWAs, using the electronic submission system 
available through the OHRP Web site at http://ohrp.cit.nih.gov/efile/, 
unless an institution lacks the ability to do so electronically. If an 
institution believes it lacks the ability to submit its FWA 
electronically, it must contact OHRP by telephone or email (see http://
www.hhs.gov/ohrp/assurances/index.html) and explain why it is unable to 
submit its FWA electronically.



370.303  Notice to offerors.

    (a) The contracting officer shall insert the provision at 352.270-
4a, Notice to Offerors, Protection of Human Subjects, in solicitations 
that involve human subjects. The contracting officer shall use the 
clause with its Alternate I when the agency is prescribing a date later 
than the proposal submission by which the offeror must have an approved 
FWA.

[[Page 71]]

    (b) Institutions having an OHRP-approved FWA shall certify IRB 
approval of submitted proposals in the manner required by instructions 
for completion of the contract proposal; by completion of an OMB Form 
No. 0990-0263, Protection of Human Subjects Assurance Identification/IRB 
Certification/Declaration of Exemption (Common Rule); or by letter 
indicating the institution's OHRP-assigned FWA number, the date of IRB 
review and approval, and the type of review (convened or expedited). The 
date of IRB approval must not be more than 12 months prior to the 
deadline for proposal submission.
    (c) The contracting officer generally will not request FWAs for 
contractors, subcontractors, or institutions prior to selecting a 
contract proposal for negotiation. When a contractor submits an FWA, it 
provides certification for the initial contract period; no additional 
documentation is required. If the contract provides for additional years 
to complete the project, the contractor shall certify annually in the 
manner described in 370.303(b).
    (d) For the Food and Drug Administration (FDA), the contracting 
officer shall insert the provision at 352.270-10, Notice to Offerors--
Protection of Human Subjects, Research Involving Human Subjects 
Committee (RIHSC) Approval of Research Protocols Required, in 
solicitations that involve human subjects when the research is subject 
to RIHSC review and approval.



370.304  Contract clauses.

    (a) The contracting officer shall insert the clause at 352.270-4b, 
Protection of Human Subjects, in solicitations, contracts and orders 
involving human subjects.
    (b) The contracting officer shall insert the clause at 352.270-6, 
Restriction on Use of Human Subjects, in contracts and orders if the 
contractor has an approved FWA of compliance in place, but cannot 
certify prior to award that an IRB registered with OHRP reviewed and 
approved the research, because definite plans for involvement of human 
subjects are not set forth in the proposal (e.g., projects in which 
human subjects' involvement will depend upon completion of instruments, 
prior animal studies, or purification of compounds). Under these 
conditions, the contracting officer may make the award without the 
requisite certification, as long as the contracting officer includes 
appropriate conditions in the contract or order.
    (c) For FDA, the contracting officer shall insert the clause at 
352.270-11, Protection of Human Subjects, Research Involving Human 
Subjects Committee (RIHSC) Approval of Research Protocols Required, in 
contracts and orders that involve human subjects when the research is 
subject to RIHSC review and approval.
    (d) The contracting officer shall insert the clause at 352.270-12, 
Needle Exchange, in solicitations, contracts, and orders involving human 
subjects.
    (e) The contracting officer shall insert the clause at 352.270-13, 
Continued Ban on Funding Abortion and Continued Ban on Funding of Human 
Embryo Research, in solicitations, contracts, and orders involving human 
subjects.



   Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals



370.400  Scope of subpart.

    This subpart applies to all research, research training, biological 
testing, housing and maintenance, and other activities involving live 
vertebrate animals conducted under contract. Additional information can 
be found in Public Health Service (PHS) Policy on Humane Care and Use of 
Laboratory Animals http://grants.nih.gov/grants/olaw/references/
phspolicylabanimals.pdf.



370.401  Policy.

    (a) It is HHS policy that contracting activities shall not award a 
contract involving live vertebrate animals until the Contractor provides 
acceptable assurance the contract work is subject to initial and 
continuing review by an appropriate Institutional Animal Care and Use 
Committee (IACUC) as described in the PHS Policy at IV.B.6 and 7. The 
contracting officer shall require an applicable Animal Welfare Assurance 
approved by the Office of Laboratory Animal Welfare (OLAW), National 
Institutes of Health (NIH), of each contractor, subcontractor, or 
institution having responsibility for animal care

[[Page 72]]

and use involved in performance of the contract. Normally the assurance 
shall be approved before award. The contracting officer, on a case-by-
case basis, may make award without an approved assurance in consultation 
with OLAW. For additional information see PHS Policy II., IV.A, and V.B.
    (b) The OLAW, NIH, is responsible for negotiating assurances 
covering all HHS/PHS-supported or HHS/PHS-conducted activities involving 
the care and use of live vertebrate animals. OLAW shall provide guidance 
to contracting officers regarding adequate animal care and use, 
approval, disapproval, restriction, or withdrawal of approval of 
assurances. For additional information see PHS Policy V.A.
    (c) If using live vertebrate animals, HHS policy requires that 
offerors address the points in the Vertebrate Animal Section (VAS) of 
the Technical Proposal. Each of the points must be addressed in the VAS 
portion of the Technical Proposal. For additional information see PHS 
Policy and use Contract Proposal VAS Worksheet. http://grants.nih.gov/
grants/olaw/references/phspol.htm InformationRequiredinApplications- 
ProposalsforAwardsSubmittedtoPHS and http://grants.nih.gov/grants/olaw/
VAScontracts.pdf.



370.402  Assurances.

    (a) Animal Welfare Assurances may be one of three types:
    (1) Domestic Assurance (DA). A DA describes the institution's animal 
care and use program, including but not limited to the lines of 
authority and responsibility, veterinary care, IACUC composition and 
procedures, occupational health and safety, training, facilities, and 
species housed. A DA listed in OLAW's list of institutions with an 
approved DA is acceptable for purposes of this policy.
    (2) Inter-institutional Assurance (IA). The offeror, its proposed 
subcontractor, or institution shall submit an IA when it does not have a 
proprietary animal care and use program, facilities to house animals or 
IACUC, and does not conduct animal research on-site. The offeror will 
perform the animal activity at an institution with an Animal Welfare 
Assurance named as a performance site. An IA approval extends to the 
full period of contract performance (up to 5 years) limited to the 
specific award or single project.
    (3) Foreign Assurance (FA). The Foreign Assurance is required for 
institutions outside the U.S. that receive PHS funds directly through a 
contract award. The Foreign Assurance also applies to institutions 
outside the U.S. that receive PHS funds indirectly (named as a 
performance site). An FA listed in OLAW's list of institutions with an 
approved FA is acceptable for purposes of this policy.
    (b) The contracting officer shall forward copies of proposals 
selected for negotiation and requiring an assurance to OLAW at 
[email protected], as early as possible to secure the necessary 
assurances.
    (c) A contractor providing animal care services at an institution 
with an Animal Welfare Assurance, such as a Government-owned, 
Contractor-operated (GOCO) site, does not need a separate assurance. 
GOCO site assurances normally cover such contractor services.



370.403  Notice to offerors.

    (a) The contracting officer shall insert the provision at 352.270-
5a, Notice to Offerors of Requirement for Compliance with the Public 
Health Service Policy on Humane Care and Use of Laboratory Animals, in 
solicitations involving live vertebrate animals.
    (b) Offerors having a DA on file with OLAW shall submit IACUC 
approval of the use of animals in the manner required by the 
solicitation, but prior to award. The date of IACUC approval must not be 
more than 36 months prior to award.
    (c) It is not necessary for offerors lacking an Animal Welfare 
Assurance to submit assurances or IACUC approval with proposals. OLAW 
shall contact contractors, subcontractors, and institutions to negotiate 
necessary assurances and verify IACUC approvals when requested by the 
contracting officer.



370.404  Contract clause.

    The contracting officer shall insert the clause at 352.270-5b, Care 
of Live Vertebrate Animals, in solicitations,

[[Page 73]]

contracts, and orders that involve live vertebrate animals.

Subparts 370.5-370.6 [Reserved]



           Subpart 370.7_Acquisitions Under the Leadership Act



370.700  Scope of subpart.

    This subpart sets forth the acquisition requirements regarding 
implementation of Human Immunodeficiency Virus/Acquired Immune 
Deficiency Syndrome (HIV/AIDS) programs under the President's Emergency 
Plan for AIDS Relief as established by the United States Leadership 
Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, as amended (Pub. 
L. 108-25, Pub. L. 110-293, Pub. L. 113-56).



370.701  Solicitation provision.

    The contracting officer shall insert the provision at 352.270-9, 
Non-Discrimination for Conscience, in solicitations valued at more than 
the micro-purchase threshold:
    (a) In connection with the implementation of HIV/AIDS programs under 
the President's Emergency Plan for AIDS Relief established by the United 
States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 
2003, as amended; or
    (b) Where the contractor will receive funding under the United 
States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 
2003, as amended. In resolving any issues or complaints that offerors 
may raise regarding meeting the requirements specified in the provision, 
the contracting officer shall consult with the Office of Global Health 
Affairs, Office of the General Counsel, the Program Manager, and other 
HHS officials, as appropriate.

                        PARTS 371	399 [RESERVED]

[[Page 75]]



                  CHAPTER 4--DEPARTMENT OF AGRICULTURE




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
400

[Reserved]

401             Agriculture Acquisition Regulation System...          77
402             Definitions of words and terms..............          82
403             Improper business practices and personal 
                    conflicts of interest...................          82
404             Administrative matters......................          84
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
405             Publicizing contract actions................          86
406             Competition requirements....................          86
407             Acquisition planning........................          87
408             Required sources of supplies and services...          88
409             Contractor qualifications...................          90
410             Market research.............................          92
411             Describing agency needs.....................          92
412             Acquisition of commercial items.............          93
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
413             Simplified acquisition procedures...........          95
414             Sealed bidding..............................          95
415             Contracting by negotiation..................          96
416             Types of contracts..........................          98
417             Special contracting methods.................          99
418

[Reserved]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
419             Small business programs.....................         100
420-421

[Reserved]

422             Application of labor laws to Government 
                    acquisitions............................         101
423             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         103
424             Protection of privacy and freedom of 
                    information.............................         105
425             Foreign acquisition.........................         106

[[Page 76]]

426             Other socioeconomic programs................         107
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
427             Patents, data, and copyrights...............         108
428             Bonds and insurance.........................         108
429

[Reserved]

430             Cost accounting standards administration....         109
431             Contract cost principles and procedures.....         110
432             Contract financing..........................         110
433             Protests, disputes and appeals..............         114
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
434             Major system acquisition....................         116
435             Research and development contracting........         117
436             Construction and architect-engineer 
                    contracts...............................         117
437             Service contracting.........................         120
438

[Reserved]

439             Acquisition of information technology.......         122
440

[Reserved]

441             Acquisition of utility services.............         122
                    SUBCHAPTER G--CONTRACT MANAGEMENT
442             Contract administration.....................         123
443-444

[Reserved]

445             Government property.........................         123
446             Quality assurance...........................         124
447             Transportation..............................         124
448

[Reserved]

449             Termination of contracts....................         125
450             Extraordinary contractual actions...........         125
451

[Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
452             Solicitation provisions and contract clauses         127
453             Forms.......................................         138
                 SUBCHAPTER I--FOOD ASSISTANCE PROGRAMS
470             Commodity acquisitions......................         140
471-499

[Reserved]

[[Page 77]]



                          SUBCHAPTER A_GENERAL



                           PART 400 [RESERVED]



PART 401_AGRICULTURE ACQUISITION REGULATION SYSTEM--Table of Contents



Sec.
401.000  Scope of part.

               Subpart 401.1_Purpose, Authority, Issuance

401.101  Purpose.
401.103  Authority.
401.104  Applicability.
401.105  Issuance.
401.105-1  Publication and code arrangement.
401.105-2  Arrangement of regulations.
401.105-3  Copies.
401.106  OMB approval under the Paperwork Reduction Act.
401.170  Electronic access to regulatory information.

                      Subpart 401.2_Administration

401.201  Maintenance of the FAR.
401.201-1  The two councils.

              Subpart 401.3_Agency Acquisition Regulations

401.301  Policy.
401.304  Agency control and compliance procedures.
401.370  Exclusions.
401.371  AGAR Advisories.
401.372  Departmental directives.

             Subpart 401.4_Deviations From the FAR and AGAR

401.402  Policy.
401.403  Individual deviations.
401.404  Class deviations.

        Subpart 401.6_Contracting Authority and Responsibilities

401.601  General.
401.602  Contracting officers.
401.602-3  Ratification of unauthorized commitments.
401.603  Selection, appointment, and termination of appointment.
401.603-1  General.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



401.000  Scope of part.

    This part presents basic policies and general information about the 
Department of Agriculture's (USDA) Acquisition Regulation, subsequently 
referred to as the AGAR. The AGAR is an integral part of the Federal 
Acquisition Regulations System.



               Subpart 401.1_Purpose, Authority, Issuance



401.101  Purpose.

    (a) The AGAR provides for the codification and publication of 
uniform policies and procedures for acquisitions by contracting 
activities within USDA.
    (b) The purpose of the AGAR is to implement the Federal Acquisition 
Regulation (FAR), where further implementation is needed, and to 
supplement the FAR when coverage is needed for subject matter not 
covered in the FAR. The AGAR is not by itself a complete document, as it 
must be used in conjunction with the FAR.



401.103  Authority.

    The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 
U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated 
authority to promulgate Departmental acquisition regulations.



401.104  Applicability.

    The FAR and AGAR apply to all USDA acquisitions of supplies and 
services (including construction) which obligate appropriated funds, 
unless otherwise specified in this chapter or excepted by law.



401.105  Issuance.



401.105-1  Publication and code arrangement.

    (a) The AGAR is codified in the Code of Federal Regulations (CFR) as 
Chapter 4 of Title 48, Federal Acquisition Regulations System, to 
implement and supplement Chapter 1 which constitutes the FAR. Parts 400 
through 499 have been assigned to USDA by the Office of the Federal 
Register.

[[Page 78]]

    (b) The AGAR and its subsequent changes are published in:
    (1) Daily issues of the Federal Register,
    (2) Cumulative form in the CFR, and,
    (3) Electronic form on the USDA Departmental Administration 
Procurement Homepage (see 401.170).
    (c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 
553, provides an exception from the standard public rulemaking 
procedures to the extent that the rule involves a matter relating to 
agency management or personnel or to public property, loans, grants, 
benefits, or contracts. In 1971, Secretary of Agriculture Hardin 
announced a voluntary partial waiver from the Administrative Procedure 
Act exception, and USDA agencies generally are required to provide 
notice and an opportunity for public comment on proposed rules (36 FR 
13804, July 24, 1971). The AGAR has been promulgated and may be revised 
from time to time in accordance with the rulemaking procedures of the 
Administrative Procedure Act. The USDA also is required to publish for 
public comment procurement regulations in the Federal Register, pursuant 
to the Office of Federal Procurement Policy Act (41 U.S.C. 418b), and 
FAR 1.301.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



401.105-2  Arrangement of regulations.

    AGAR coverage parallels the FAR in format, arrangement, and 
numbering system. However, subdivisions below the section and subsection 
levels may not always correlate directly to FAR designated paragraphs 
and subparagraphs.



401.105-3  Copies.

    Copies of the AGAR published in CFR form may be purchased from the 
Superintendent of Documents, Government Printing Office, Washington, 
D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.



401.106  OMB approval under the Paperwork Reduction Act.

    The following OMB control numbers apply to USDA solicitations and 
specified information collections within the AGAR:

------------------------------------------------------------------------
                                                             OMB Control
                        AGAR segment                             No.
------------------------------------------------------------------------
411.170....................................................    0505-0014
415.2......................................................    0505-0013
436.575....................................................    0505-0011
437.110....................................................    0505-0015
437.270....................................................    0505-0016
452.211-1..................................................    0505-0014
452.215-71.................................................    0505-0013
452.236-75.................................................    0505-0011
452.237-74.................................................    0505-0015
452.237-76.................................................    0505-0016
------------------------------------------------------------------------


[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52674, Sept. 30, 1999]



401.170  Electronic access to regulatory information.

    The USDA Departmental Administration Procurement Homepage provides 
access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and 
other USDA procurement policy and guidance in electronic form. The 
Internet address for the Procurement Homepage is URL http://
www.usda.gov/procurement/.

[63 FR 26994, May 15, 1998, as amended at 70 FR 44, Jan. 3, 2005]



                      Subpart 401.2_Administration



401.201  Maintenance of the FAR.



401.201-1  The two councils.

    (a) USDA's representative on the Civilian Agency Acquisition Council 
is designated by the SPE.
    (b) The Procurement Policy Division will coordinate proposed FAR 
revisions within USDA.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



              Subpart 401.3_Agency Acquisition Regulations



401.301  Policy.

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

[[Page 79]]

    (b) Each designated head of a contracting activity (HCA) is 
authorized to issue or authorize the issuance of, at any organizational 
level, internal guidance which does not have a significant effect beyond 
the internal operating procedures of the activity, or a significant cost 
or administrative impact on offerors or contractors. Internal guidance 
issued by contracting activities will not be published in the Federal 
Register. HCA's shall ensure that the guidance, procedures, or 
instructions issued--
    (1) Are consistent with the policies and procedures contained in 
this chapter;
    (2) Follow the format, arrangement, and numbering system of this 
chapter to the extent practicable;
    (3) Contain no material which duplicates, paraphrases, or is 
inconsistent with this chapter; and
    (4) Are numbered and identified by use of alphabetical suffixes to 
the chapter number as follows:

4A [Reserved]
4B Agricultural Research Service.
4C Farm Service Agency.
4D Rural Development (mission area).
4E Food Safety and Inspection Service.
4F [Reserved]
4G Forest Service.
4H [Reserved]
4I Natural Resources Conservation Service.
4J [Reserved]
4K Food and Nutrition Service.
4L Animal and Plant Health Inspection Service.
4M [Reserved]
4N Departmental Administration.
4O-4P [Reserved]
4R Office of Inspector General.
4S [Reserved]

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



401.304  Agency control and compliance procedures.

    (a) The AGAR System is under the direct oversight and control of the 
SPE, who is responsible for review and issuance of all Department-wide 
acquisition regulations published in the Federal Register to assure 
compliance with FAR part 1.
    (b) The SPE is also responsible for review and issuance of 
unpublished, Department-wide internal guidance under the AGAR System.
    (c) HCA's are responsible for establishment and implementation of 
formal procedures for oversight and control of unpublished internal 
guidance issued within the contracting activity to implement FAR or AGAR 
requirements. These procedures shall be subject to the review and 
approval by the SPE.
    (d) The SPE is responsible for evaluating coverage under the AGAR 
System to determine applicability to other agencies and for recommending 
coverage to the FAR Secretariat for inclusion in the FAR.
    (e) Recommendations for revision of existing FAR coverage or new FAR 
coverage shall be submitted by the HCA to the SPE for further action.



401.370  Exclusions.

    Subject to the policies of FAR subpart 1.3, certain USDA acquisition 
policies and procedures may be excluded from the AGAR under 
appropriately justified circumstances, such as:
    (a) Subject matter which is effective for a period less than 12 
months.
    (b) Subject matter which is instituted on an experimental basis for 
a reasonable period.
    (c) Acquisition procedures instituted on an interim basis to comply 
with the requirements of statute, regulation, Executive Order, OMB 
Circular, or OFPP Policy Letter.



401.371  AGAR Advisories.

    The SPE may issue AGAR Advisories, consistent with the policies of 
the FAR and the AGAR, for the following purposes:
    (a) To communicate Department-wide policy and/or procedural guidance 
to contracting activities;
    (b) To delegate to procurement officials authority to make 
determinations or to take action to implement the policies of the FAR or 
the AGAR; and,
    (c) To establish internal policy and procedures on an interim basis, 
prior to incorporation in the AGAR or in a Departmental Directive.
    (d) AGAR Advisories are only available in electronic format on the 
USDA

[[Page 80]]

Procurement Web site at http://www.usda.gov/procurement/.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



401.372  Departmental directives.

    Subject to the policies of FAR 1.3, USDA from time to time may issue 
internal directives to establish procedures, standards, guidance, or 
methods of performing duties, functions, or operations. Such directives 
include Departmental Regulations (DR's), Departmental Notices, and 
Secretary's Memoranda.



             Subpart 401.4_Deviations From the FAR and AGAR



401.402  Policy.

    Requests for authority to deviate from the provisions of the FAR or 
the AGAR shall be submitted in writing as far in advance as the 
exigencies of the situation will permit. Each request for deviation 
shall contain the following:
    (a) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the FAR and AGAR;
    (b) The reason why the deviation is considered necessary or would be 
in the best interest of the Government;
    (c) If applicable, the name of the contractor and identification of 
the contract affected;
    (d) A statement as to whether the deviation has been requested 
previously and, if so, circumstances of the previous request;
    (e) A description of the intended effect of the deviation;
    (f) A statement of the period of time for which the deviation is 
needed; and
    (g) Any pertinent background information which will contribute to a 
full understanding of the desired deviation.



401.403  Individual deviations.

    In individual cases, deviations from either the FAR or the AGAR will 
be authorized only when essential to effect a necessary acquisition or 
where special circumstances make such deviations clearly in the best 
interest of the Government. Except for cost principles, HCA's may 
approve individual deviations from the AGAR, after coordinating with the 
General Counsel and the SPE. No deviations from the FAR or AGAR may be 
authorized at the contracting office level. A copy of each deviation and 
its supporting documentation shall be provided to the SPE. Deviations 
from the FAR shall not be made unless such action is authorized by the 
SPE after consultation with the Office of the General Counsel and any 
other appropriate office, on the basis of a written justification 
stating clearly the special circumstances involved.



401.404  Class deviations.

    Where deviations from the FAR or AGAR are considered necessary for 
classes of contracts, requests for authority to deviate shall be 
submitted in writing to the SPE for approval. The SPE may authorize 
class deviations from the FAR without consulting the Chairperson of the 
Civilian Agency Acquisition Council where urgency precludes 
consultation. The SPE shall subsequently inform the Chairperson of the 
Civilian Agency Acquisition Council of the deviation including the 
circumstances under which it was required.



        Subpart 401.6_Contracting Authority and Responsibilities



401.601  General.

    (a) The authority and responsibility vested in the Secretary to 
manage USDA's acquisition function is delegated through the Assistant 
Secretary for Administration to the SPE. This broad authority includes, 
but is not limited to, the following responsibilities:
    (1) Prescribing and publishing Departmental acquisition policies, 
regulations, and procedures.
    (2) Taking any necessary actions consistent with policies, 
regulations, and procedures with respect to purchases, contracts, 
leases, and other transactions.
    (3) Designating contracting officers.
    (4) Establishing clear lines of contracting authority.
    (5) Evaluating and monitoring the performance of USDA's acquisition 
system.

[[Page 81]]

    (6) Managing and enhancing career development of the contracting 
work force.
    (7) Participating in the development of Government-wide acquisition 
policies, regulations, and standards; and determining specific areas 
where government-wide performance standards should be established and 
applied.
    (8) Determining areas of Department-unique standards and developing 
unique Department-wide standards.
    (9) Certifying to the Secretary that the acquisition system meets 
approved standards.
    (b) The SPE may delegate contracting authority to the Heads of 
Contracting Activities (HCA's) and the responsibility to manage their 
acquisition function.
    (c) Unless prohibited by the FAR, the AGAR, or by other applicable 
statutes and regulations, the SPE may redelegate to HCA's the authority 
to make determinations as the agency head in order to implement the 
policies and procedures of the FAR. Such delegations shall be in 
writing, but need not be published.
    (d) Unless prohibited by the FAR, the AGAR, or by other applicable 
statutes or regulations, each HCA may designate one individual from the 
contracting activity to carry out the functions of the HCA (HCAD). The 
HCAD may exercise all authority delegated to the HCA.



401.602  Contracting officers.



401.602-3  Ratification of unauthorized commitments.

    (a) Definitions. Ratification, as used in this section, means the 
signed, documented action taken by an authorized official to approve and 
sanction a previously unauthorized commitment.
    Unauthorized commitment, as used in this section, means an agreement 
made by a Government representative who lacked the authority to enter 
into a contract on behalf of the Government.
    (b) Policy. The HCA may delegate ratification authority to the chief 
of the contracting office.
    (c) Procedure. Whenever an official of the cognizant contracting 
activity who is authorized to ratify unauthorized commitments learns 
that a person or firm has assumed work as a result of an unauthorized 
commitment, that official shall take the following actions:
    (1) Immediately inform any person who is performing work as a result 
of an unauthorized commitment that the work is being performed at that 
person's risk;
    (2) Inform the individual who made the unauthorized commitment of 
the seriousness of the act and the possible consequences;
    (3) Ensure that the individual who made the unauthorized commitment 
furnishes all records and documents concerning the commitment and a 
complete, written statement of facts, including, but not limited to: a 
statement as to why a contracting officer was not used; why the vendor 
was selected and a list of sources considered; a description of work to 
be performed or products to be furnished; the estimated or agreed price; 
whether an appropriation is available for the work; and whether 
performance has begun. Under exceptional circumstances, such as when the 
individual who made the unauthorized commitment is no longer available 
to attest to the circumstances of the unauthorized commitment, the 
ratifying official may waive these requirements; and
    (4) Decide whether ratification is proper and proceed as follows:
    (i) If ratification is not justifiable, provide the cognizant 
program office, contracting office, and the unauthorized contractor with 
an explanation of the decision not to ratify.
    (ii) If ratification appears adequately justified, ratify the action 
and retain or assign the contract to a successor contracting officer if 
necessary.
    (iii) Maintain related approval, decisional, and background 
documents in the contract file for audit purposes.
    (iv) Notify the cognizant program supervisor or line officer about 
the final disposition of the case; the notification may include a 
recommendation that the unauthorized commitment should be further 
considered a violation of USDA's employee conduct regulations.

[[Page 82]]



401.603  Selection, appointment, and termination of appointment.



401.603-1  General.

    An HCA may delegate contracting authority to the extent authorized 
by the SPE in a general delegation of acquisition authority, by 
appointing qualified individuals as contracting officers, in accordance 
with the USDA Contracting Officer Warrant System, Departmental 
Regulation 5001-1.



PART 402_DEFINITIONS OF WORDS AND TERMS--Table of Contents



Sec.
402.000  Scope of part.

                        Subpart 402.1_Definitions

402.101  Definitions.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



402.000  Scope of part.

    As used throughout this chapter, the following words and terms are 
used as defined in this subpart unless the context in which they are 
used clearly requires a different meaning, or a different definition is 
prescribed for a particular part or portion of a part.



                        Subpart 402.1_Definitions



402.101  Definitions.

    Acquisition official means an individual who has been delegated 
authority to manage or to exercise acquisition functions and 
responsibilities.
    Agency head or Head of the Agency means the Secretary of 
Agriculture, Deputy Secretary, or the Assistant Secretary for 
Administration.
    Head of the contracting activity (HCA) means the official who has 
overall responsibility for managing the contracting activity (i.e., 
Chief, Forest Service; Administrator, Agricultural Research Service; 
etc.), or the individual designated by such an official to carry out the 
functions of the HCA.
    Senior Procurement Executive (SPE) means the agency official 
appointed as such by the head of the agency pursuant to Executive Order 
12931. The Director, Office of Procurement and Property Management, has 
been designated as the USDA SPE.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26994, May 15, 1998]



PART 403_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
--Table of Contents



                        Subpart 403.1_Safeguards

Sec.
403.101  Standards of conduct.
403.101-3  Agency regulations.
403.104  Procurement integrity.
403.104-5  [Reserved]
403.104-7  Violations or possible violations.

       Subpart 403.2_Contractor Gratuities to Government Personnel

403.203  Reporting suspected violations of the gratuities clause.
403.204  Treatment of violations.

         Subpart 403.3_Reports of Suspected Antitrust Violations

403.303  Reporting suspected antitrust violations.

                      Subpart 403.4_Contingent Fees

403.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

             Subpart 403.5_Other Improper Business Practices

403.502  Subcontractor kickbacks.

Subpart 403.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them

403.602  Exceptions.
403.603  Responsibilities of the contracting officer.

 Subpart 403.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions

403.806  Processing suspected violations

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

[[Page 83]]



                        Subpart 403.1_Safeguards



403.101  Standards of conduct.



403.101-3  Agency regulations.

    (a) The standards of conduct for USDA procurement officials are the 
uniform standards established by the Office of Government Ethics in 5 
CFR Part 2635, Standards of Ethical Conduct for Employees of the 
Executive Branch, and FAR 3.104, Procurement integrity.
    (b) Procurement officials and other employees who require advice 
concerning the application of standards of conduct to any acquisition 
issue shall obtain ethics advisory opinions from ethics advisory 
officials in their agency personnel offices.



403.104  Procurement integrity.



403.104-5  [Reserved]



403.104-7  Violations or possible violations.

    The contracting officer shall forward information concerning any 
violation or possible violation of the Procurement Integrity Act (41 
U.S.C. 423) to the chief of the contracting office.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998. 
Redesignated and amended at 70 FR 44, Jan. 3, 2005]



       Subpart 403.2_Contractor Gratuities to Government Personnel



403.203  Reporting suspected violations of the gratuities clause.

    A suspected violation of the contract clause, FAR 52.203-3, 
Gratuities, shall be reported immediately to the cognizant contracting 
officer in writing, stating the circumstances surrounding the 
incident(s), the date(s), and names of all parties involved. The 
contracting officer shall review the report for completeness, add any 
additional information deemed necessary and a recommendation for action, 
and submit the report to the HCA.



403.204  Treatment of violations.

    The HCA shall review the report and consult with the Offices of 
General Counsel and Inspector General to determine whether further 
action should be pursued. If it is found that the facts and 
circumstances warrant further action, the HCA shall give the contractor 
a formal written notice which summarizes the reported violation and 
affords the contractor the opportunity to make a written or oral 
response within a reasonable, specified period after receipt of the 
notice. The notice shall be sent by certified mail with return receipt 
requested. Oral presentations shall follow the procedures outlined in 
FAR 3.204(b). The HCA shall furnish copies of any adverse determination 
to the contracting officer and the Department Debarring Officer for 
their subsequent considerations under FAR 3.204(c)(1) and (2), 
respectively.



         Subpart 403.3_Reports of Suspected Antitrust Violations



403.303  Reporting suspected antitrust violations.

    Contracting officers shall report the circumstances of suspected 
violations of antitrust laws to the Office of Inspector General in 
accordance with procedures in Departmental Regulations (1700 series).



                      Subpart 403.4_Contingent Fees



403.405  Misrepresentations or violations of the Covenant Against
Contingent Fees.

    (a) A suspected misrepresentation or violation of the Covenant 
Against Contingent Fees shall be documented in writing by the 
contracting officer and reported immediately to the chief of the 
contracting office. The chief of the contracting office shall determine 
if a violation has occurred and report any violation to the Office of 
Inspector General. The chief of the contracting office shall take action 
in accordance with FAR 3.405(b).
    (b) If the chief of the contracting office decides to refer the case 
to the Department of Justice, it should be referred through the Office 
of Inspector General with a copy of the report and referral submitted 
through the HCA to the Senior Procurement Executive.

[61 FR 53646, Oct. 15, 1996. Redesignated and amended at 70 FR 44, Jan. 
3, 2005]

[[Page 84]]



             Subpart 403.5_Other Improper Business Practices



403.502  Subcontractor kickbacks.

    Contracting officers shall report the circumstances of suspected 
violations of the Anti-Kickback Act (41 U.S.C. 51-58) to the Office of 
Inspector General in accordance with procedures in Departmental 
Regulations (1700 series).

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



Subpart 403.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them



403.602  Exceptions.

    The HCA is authorized to accept a contract from the policy in FAR 
3.601.



403.603  Responsibilities of the contracting officer.

    The contracting officer, when requesting authorization under 
403.602, shall prepare a written determination and findings for the 
signature of the HCA. The determination shall document compliance with 
FAR 3.603, specifying the compelling reason(s) for award, and shall be 
placed in the contract file.



 Subpart 403.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions



403.806  Processing suspected violations.

    Suspected violations of the requirements of 31 U.S.C. 1352 shall be 
referred to the Office of Inspector General in accordance with 
procedures in Departmental Regulations (1700 series).



PART 404_ADMINISTRATIVE MATTERS--Table of Contents



                   Subpart 404.2_Contract Distribution

Sec.
404.203  Taxpayer identification information.

    Subpart 404.4_Safeguarding Classified Information Within Industry

404.403  Responsibilities of contracting officers.

                    Subpart 404.6_Contract Reporting

404.601  [Reserved]
404.602  Federal Procurement Data System.

                 Subpart 404.8_Government Contract Files

404.870  Document numbering system.

             Subpart 404.11_Central Contractor Registration

404.1103  Procedures.

                   Subpart 404.70_Precontract Notices

404.7001  Solicitation provision.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                   Subpart 404.2_Contract Distribution



404.203  Taxpayer identification information.

    (a) If the contractor furnishes taxpayer identification number (TIN) 
and type of organization information pursuant to solicitation provision 
52.204-3 or 52.212-3, and the USDA Office of the Chief Financial 
Officer, Controller Operations Division, New Orleans will be the payment 
office, that information will be entered into the Foundation Financial 
Information System (FFIS) in accordance with FFIS Vendor Table 
Maintenance Procedures set forth in FFIS Bulletins issued by the Office 
of the Chief Financial Officer and AGAR Advisories issued by the Office 
of Procurement and Property Management.
    (b) Separate submission of the TIN or type of organization 
information, in accordance with 52.204-3 or 52.212-3, is not required 
for contractors registered in the Central Contractor Registration (CCR) 
database.

[70 FR 44, Jan. 3, 2005]

[[Page 85]]



    Subpart 404.4_Safeguarding Classified Information Within Industry



404.403  Responsibilities of contracting officers.

    When a proposed solicitation is likely to require access to 
classified information, the contracting officer shall consult with the 
Information Security Staff, Personnel and Document Security Division, 
Office of Procurement and Property Management, regarding the procedures 
that must be followed.

[70 FR 44, Jan. 3, 2005]



                    Subpart 404.6_Contract Reporting



404.601  [Reserved]



404.602  Federal Procurement Data System.

    (a) Contracting activities shall report contract actions into the 
Federal Procurement Data System in accordance with the instructions 
issued or distributed by the SPE.
    (b) The unique identifier for each contract action reported to the 
Federal Procurement Data System shall begin with the two-letter USDA 
Agency Prefix ``AG''.

[70 FR 44, Jan. 3, 2005]



                 Subpart 404.8_Government Contract Files



404.870  Document numbering system.

    The SPE shall issue AGAR Advisories to establish and maintain a 
numbering system for USDA contracts, modifications, and delivery/task 
orders. USDA contracting offices shall number contracts, modifications, 
and orders in accordance with this numbering system.

[70 FR 44, Jan. 3, 2005]



             Subpart 404.11_Central Contractor Registration



404.1103  Procedures.

    (a) Contracting officers and other USDA employees shall not enter 
information into the Central Contractor Registration (CCR) database on 
behalf of prospective contractors. Prospective contractors who are 
unable to register on-line at the CCR Web site should be advised to 
submit a written application to CCR for registration into the CCR 
database. USDA employees may assist prospective contractors by 
downloading the registration template, CCR handbook, and other 
information from the CCR Web site and providing copies of that material 
to requesters. Written applications for registration may be submitted to 
Department of Defense Central Contractor Registration, 74 Washington 
Ave., Suite 7, Battle Creek, MI 49017-3084.
    (b) Verification that the prospective contractor is registered in 
the CCR database shall be done via the CCR Internet Web site http://
www.ccr.gov. This verification process using the CCR Web site applies 
both to acquisitions executed using USDA legacy procurement systems and 
the USDA Integrated Acquisition System.
    (c) AGAR Advisories issued by the Office of Procurement and Property 
Management will address internal procedures for integration of 
contractor information in the CCR database with the USDA FFIS payment 
system.

[70 FR 44, Jan. 3, 2005]



                   Subpart 404.70_Precontract Notices



404.7001  Solicitation provision.

    The contracting officer shall insert the provision at 452.204-70, 
Inquiries, in all solicitations.

[[Page 86]]



            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING





PART 405_PUBLICIZING CONTRACT ACTIONS--Table of Contents



                Subpart 405.3_Synopses of Contract Awards

Sec.
405.303  Announcement of contract awards.

                  Subpart 405.4_Release of Information

405.403  Requests from Members of Congress.
405.404  Release of long-range acquisition estimates.
405.404-1  Release procedures.

                    Subpart 405.5_Paid Advertisements

405.502  Authority.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                Subpart 405.3_Synopses of Contract Awards



405.303  Announcement of contract awards.

    Contracting officers shall make information available on any 
contract award with an estimated total value over $1 million (including 
options) to their agency congressional liaison office in sufficient time 
for the agency to announce it by 5:00 p.m. Washington, DC time on the 
day of award. The agency congressional liaison office shall, concurrent 
with the public announcement, provide the award announcement information 
to the USDA Congressional Relations Office.



                  Subpart 405.4_Release of Information



405.403  Requests from Members of Congress.

    The head of the contracting activity (HCA) is the agency head 
designee pursuant to FAR 5.403.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]



405.404  Release of long-range acquisition estimates.



405.404-1  Release procedures.

    (a) HCA's shall establish written procedures to control the release 
of long-range acquisition estimates, as authorized under FAR 5.404-1.
    (b) Classified information shall not be released without the 
approval of the Information Security Staff, Personnel and Document 
Security Division, Office of Procurement and Property Management. 
Departmental Manuals and Regulations (3400 series) contain guidance on 
classified information.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]



                    Subpart 405.5_Paid Advertisements



405.502  Authority.

    (a) The authority vested in the agency head to authorize publication 
of paid advertisements in newspapers (44 U.S.C. 3702) is delegated, with 
power of redelegation, to HCA's. HCA redelegation of this authority 
shall be in writing.
    (b) Policies and procedures regarding prior authorization required 
for media other than newspapers are contained in USDA Departmental 
Regulations 1400 series.



PART 406_COMPETITION REQUIREMENTS--Table of Contents



   Subpart 406.2_Full and Open Competition After Exclusion of Sources

Sec.
406.202  Establishing or maintaining alternative sources.

           Subpart 406.3_Other Than Full and Open Competition

406.302  Circumstances permitting other than full and open competition.
406.302-70  Otherwise authorized by law.

                   Subpart 406.5_Competition Advocates

406.501  Requirements.


[[Page 87]]


    Authority: 5 U.S.C. and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



   Subpart 406.2_Full and Open Competition After Exclusion of Sources



406.202  Establishing or maintaining alternative sources.

    The Senior Procurement Executive is authorized to make 
determinations pursuant to FAR 6.202(a) and sign the determination and 
findings required by FAR 6.202(b).



           Subpart 406.3_Other Than Full and Open Competition



406.302  Circumstances permitting other than full and open competition.



406.302-70  Otherwise authorized by law.

    (a) Authority. Section 1472 of the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) 
authorizes the Secretary of Agriculture to award contracts, without 
competition, to further research, extension, or teaching programs in the 
food and agricultural sciences.
    (b) Limitations. The use of this authority is limited to those 
instances where it can be determined that contracting without full and 
open competition is in the best interest of the Government and necessary 
to the accomplishment of the research, extension, or teaching program. 
Therefore:
    (1) Contracts under the authority of the Act shall be awarded on a 
competitive basis to the maximum practicable extent.
    (2) When full and open competition is not deemed appropriate, the 
contracting officer shall make a written justification on a case-by-case 
basis in accordance with procedures in FAR 6.303 and 6.304.



                   Subpart 406.5_Competition Advocates



406.501  Requirements.

    (a) The Chief, Procurement Policy Division, Office of Procurement 
and Property Management, has been designated as the Competition Advocate 
for USDA.
    (b) Each HCA shall designate a competition advocate for the 
contracting activity. The HCA shall forward a copy of the designation 
memorandum to the Competition Advocate for USDA.

[70 FR 45, Jan. 3, 2005]



PART 407_ACQUISITION PLANNING--Table of Contents



                     Subpart 407.1_Acquisition Plans

Sec.
407.103  Agency-head responsibilities.
407.170  Advance acquisition plans.

Subpart 407.3 [Reserved]

             Subpart 407.5_Inherently Governmental Functions

407.503  Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                     Subpart 407.1_Acquisition Plans



407.103  Agency-head responsibilities.

    Heads of Contracting Activities (HCA's) shall develop procedures to 
comply with FAR 7.103.



407.170  Advance acquisition plans.

    Each HCA shall maintain an advance acquisition planning system.

[70 FR 45, Jan. 3, 2005]

Subpart 407.3 [Reserved]



             Subpart 407.5_Inherently Governmental Functions



407.503  Policy.

    (a) HCA's shall establish procedures to ensure that requesting 
activities

[[Page 88]]

provide the written determination required by FAR 7.503(e), when 
submitting requests for procurement of services.
    (b) In the event of a disagreement as to whether the functions to be 
performed are inherently governmental, the HCA may refer the matter to 
the Senior Procurement Executive (SPE) for resolution. When submitting 
disagreements to the SPE for resolution the HCA shall provide a summary 
of the areas of disagreement, supported by the following:
    (1) The HCA's assessment of whether the services are ``inherently 
governmental'';
    (2) The basis for that assessment (include references to the 
definition and policy in FAR subpart 7.5 and/or Office of Federal 
Procurement Policy letter 92-1);
    (3) A copy of the statement of work; and,
    (4) The requesting activity's written determination in accordance 
with FAR 7.503(e).
    (c) Such disagreements shall be resolved prior to issuance of the 
solicitation.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]



PART 408_REQUIRED SOURCES OF SUPPLIES AND SERVICES--Table of Contents



                 Subpart 408.4_Federal Supply Schedules

Sec.
408.404  Using schedules.
408.404-3  Requests for waivers.

 Subpart 408.7_Acquisition From Nonprofit Agencies Employing People Who 
                     Are Blind or Severely Disabled

408.701  Definitions.
408.705  Procedures.
408.705-2  Direct order process.
408.705-3  Allocation process.
408.705-4  Compliance with orders.
408.706  Purchase exemptions.
408.707  Prices.
408.711  Quality complaints.
408.712  Specification changes.
408.714  Communications with the central nonprofit agencies and the 
          Committee.

       Subpart 408.8_Acquisition of Printing and Related Supplies

408.802  Policy.

                Subpart 408.11_Leasing of Motor Vehicles

408.1103  Contract requirements.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                 Subpart 408.4_Federal Supply Schedules



408.404  Using schedules.



408.404-3  Requests for waivers.

    A copy of the request for a waiver and the approval shall be placed 
in the contract file to support the acquisition of items off schedule.



 Subpart 408.7_Acquisition From Nonprofit Agencies Employing People Who 
                     Are Blind or Severely Disabled

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to subpart 408.7 of part 408 
appear at 70 FR 45, Jan. 3, 2005.



408.701  Definitions.

    Committee Member is the Presidential appointee representing USDA as 
a member of the Committee for Purchase from People Who Are Blind or 
Severely Disabled.
    Organization head is the Under Secretary or Assistant Secretary of a 
mission area or the head of a USDA staff office.

[70 FR 45, Jan. 3, 2005]



408.705  Procedures.

    (a) The organization head shall appoint one person as Javits-Wagner-
O'Day Act (JWOD) Liaison to represent the organization and to coordinate 
the organization's actions with the Committee Member.
    (b) JWOD advocates may represent more than one organization. 
Liaisons need not be acquisition officials.
    (c) The organization head shall issue and maintain a performance 
plan to promote and enhance the organization's acquisitions from JWOD 
participating nonprofit agencies.
    (d) The performance plan shall:

[[Page 89]]

    (1) Announce the organization's support for the JWOD Act;
    (2) Establish a promotion program for the products and services 
provided by the JWOD participating nonprofit agencies;
    (3) Provide for the JWOD Liaison's role in acquisition planning;
    (4) Establish measurable program goals for growth or other 
accomplishment in the organization's JWOD program actions; and
    (5) Establish an awards program for successful participation in the 
JWOD program.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]



408.705-2  Direct order process.

    (a) The chief of a contracting office may apply to a central 
nonprofit agency for authorization to order specific supplies or 
services directly from a JWOD participating nonprofit agency.
    (b) A copy of the application should be provided to the JWOD Liaison 
who will inform the USDA Committee Member.



408.705-3  Allocation process.

    (a) The chief of a contracting office may apply to a central 
nonprofit agency for a production allocation of specific supplies or 
services to a JWOD participating nonprofit agency.
    (b) A copy of the application should be provided to the JWOD Liaison 
who will inform the USDA Committee Member.



408.705-4  Compliance with orders.

    Prior to attempting to resolve a failure to perform by a 
participating nonprofit agency with the Committee, the chief of the 
contracting office should provide advance notice to the JWOD Liaison who 
will inform the USDA Committee Member.



408.706  Purchase exemptions.

    Prior to applying to the Committee for a purchase exemption, the 
chief of the contracting office should provide advance notice to the 
JWOD Liaison who will inform the USDA Committee Member.



408.707  Prices.

    Prior to applying for a price revision, the chief of the contracting 
office should provide advance notice to the JWOD Liaison who will inform 
the USDA Committee Member.



408.711  Quality complaints.

    Prior to attempting to resolve a complaint regarding the quality of 
goods or services provided by participating nonprofit agency with the 
Committee, the chief of the contracting office should provide advance 
notice to the JWOD Liaison who will inform the USDA Committee Member.



408.712  Specification changes.

    Prior to providing 90-days advance notification to the Committee on 
actions that affect supplies and services on the Procurement List, the 
chief of the contracting office should provide advance notice to the 
JWOD Liaison who will inform the USDA Committee Member.



408.714  Communications with the central nonprofit agencies and the
Committee.

    Any matter requiring referral to the Committee shall be provided to 
the JWOD Liaison who will coordinate the matter with the Committee 
Member.



       Subpart 408.8_Acquisition of Printing and Related Supplies



408.802  Policy.

    (a) The Director, Office of Communications (OC) has been designated 
as the central printing authority in USDA, with the authority to 
represent the USDA before the Joint Committee on Printing (JCP), the 
Government Printing Office, and other Federal and State agencies on all 
matters related to printing.
    (b) Prior to contracting for any of the items defined in FAR 8.801, 
the contracting officer shall verify that the requisite approval has 
been received by the publication liaison officer or requisitioner.
    (c) The approval from OC or the approval authority designated by OC 
shall be maintained in the contract file.

[[Page 90]]



                Subpart 408.11_Leasing of Motor Vehicles



408.1103  Contract requirements.

    If the requirement includes the need for the vendor to provide 
operational maintenance such as fueling, lubrication, or other fluid 
changes or replenishment, the contracting officer shall include in the 
contract:
    (1) A requirement for the use of fluids and lubricants containing 
the maximum available amounts of recovered materials, and alternative 
fuels whenever available; and
    (2) A preference for retreaded tires meeting the Federal retread 
specifications, tires with the maximum recovered material content, or 
retreading services for the tires on the vehicle.

[70 FR 45, Jan. 3, 2005]



PART 409_CONTRACTOR QUALIFICATIONS--Table of Contents



          Subpart 409.4_Debarment, Suspension and Ineligibility

Sec.
409.403  Definitions.
409.404  List of parties excluded from Federal procurement and 
          nonprocurement programs.
409.405  Effect of listing.
409.405-1  Continuation of current contracts.
409.405-2  Restrictions on subcontracting.
409.406  Debarment.
409.406-3  Procedures.
409.407  Suspension.
409.407-3  Procedures.

    Subpart 409.5_Organizational and Consultant Conflicts of Interest

409.503  Waiver.

    Authority: 40 U.S.C. 121, 41 U.S.C. 421.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



          Subpart 409.4_Debarment, Suspension and Ineligibility



409.403  Definitions.

    Debarring official. Pursuant to the Secretary's delegations of 
authority in 7 CFR 2.24, the Senior Procurement Executive (SPE) is 
designated as the debarring official (Department Debarring Officer) with 
the following exceptions:
    (a) For commodity contracts awarded on behalf of the Commodity 
Credit Corporation (CCC), the Executive Vice President, CCC, or his 
designee is designated as the debarring official pursuant to 7 CFR part 
1407.
    (b) For contracts awarded under the School Lunch and Surplus Removal 
Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department Debarring 
Officer has delegated debarring authority to the Agricultural Marketing 
Service (AMS).

[63 FR 26995, May 15, 1998]



409.404  List of parties excluded from Federal procurement and 
nonprocurement programs.

    The Department Debarring Officer is USDA's single point of contact 
with GSA for debarment and suspension actions taken under this subpart. 
The debarring official for AMS shall notify the Department Debarring 
Officer of each debarment and suspension action by promptly submitting a 
copy of the debarment or suspension notice and any later changes to the 
debarment or suspension status. The Department Debarring Officer will 
forward a copy of each notice to GSA for inclusion in the Government-
wide list.



409.405  Effect of listing.

    Compelling reasons are considered to be present where failure to 
contract with the debarred or suspended contractor would seriously harm 
the agency's programs and prevent accomplishment of mission 
requirements. The SPE is authorized to make the determinations under FAR 
9.405. Requests for such determinations shall be submitted through the 
head of the contracting activity (HCA) to the SPE.



409.405-1  Continuation of current contracts.

    The HCA is authorized to make the determinations under FAR 9.405-1.



409.405-2  Restrictions on subcontracting.

    The HCA is authorized to approve subcontracts with debarred or 
suspended subcontractors under FAR 9.405-2.

[[Page 91]]



409.406  Debarment.



409.406-3  Procedures.

    (a) Investigation and referral. When a contracting officer becomes 
aware of possible irregularities or any information which may be 
sufficient cause for debarment, the case shall be immediately referred 
through the HCA to the debarring official. The case must be accompanied 
by a complete statement of the facts (including a copy of any criminal 
indictments, if applicable) along with a recommendation for action. 
Where the statement of facts indicates the irregularities to be possible 
criminal offenses, or for any other reason further investigation is 
considered necessary, the matter shall be referred to the HCA who should 
consult with the Office of Inspector General to determine if further 
investigation is required prior to referring to the debarring official.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of Inspector General and Office of the 
General Counsel, as appropriate, the debarring official determines 
debarment is justified, the debarring official shall initiate the 
proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA 
of the action taken.
    (c) Fact-finding proceeding. For actions listed under FAR 9.406-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing. The hearing should be held at a location and time that 
is convenient to the parties concerned, if at all possible. The 
contractor and any specifically named affiliates may be represented by 
counsel or any duly authorized representative. Witnesses may be called 
by either party. The proceedings shall be conducted expeditiously and in 
such a manner that each party will have an opportunity to present all 
information considered pertinent to the proposed debarment. The 
contractor shall be provided a copy of a transcript of the proceedings 
under the conditions established in FAR 9.406-3(b)(2)(ii).



409.407  Suspension.



409.407-3  Procedures.

    (a) Investigation and referral. When a contracting officer becomes 
aware of possible irregularities or any information which may be 
sufficient cause for suspension, the case shall be immediately referred 
through the HCA to the debarring official. The case must be accompanied 
by a complete statement of the facts along with a recommendation for 
action. Where the statement of facts indicates the irregularities to be 
possible criminal offenses, or for any other reason further 
investigation is considered necessary, the matter shall be referred to 
the HCA who should consult with the Office of Inspector General to 
determine if further investigation is required prior to referring it to 
the debarring official.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of Inspector General and Office of the 
General Counsel, as appropriate, the debarring official determines 
suspension is justified, the debarring official shall initiate the 
proposed suspension in accordance with FAR 9.407-3(c) and notify the HCA 
of the action taken.
    (c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing, similar in nature to the hearing for debarments as 
discussed in 409.406-3(c).



    Subpart 409.5_Organizational and Consultant Conflicts of Interest



409.503  Waiver.

    (a) The HCA, on a non-delegable basis, is authorized to waive any 
general rule or procedure in FAR 9.5 when in the Government's interest.
    (b) Each request for waiver shall include:
    (1) The general rule or procedure proposed to be waived;
    (2) An analysis of the potential conflict, including the benefits 
and detriments to the Government and prospective contractors;

[[Page 92]]

    (3) A discussion of why the conflict cannot be avoided, neutralized, 
or mitigated; and
    (4) Advice of counsel obtained under FAR 9.504(b).



PART 410_MARKET RESEARCH--Table of Contents



Sec.
410.001  Policy.
410.002  Procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c)

    Source: 70 FR 45, Jan. 3, 2005, unless otherwise noted.



410.001  Policy.

    In addition to those uses listed in FAR 10.001, agencies must use 
the results of market research to--
    (a) Ensure the minimum use of hazardous or toxic materials;
    (b) Ensure the maximum use of biobased products and biofuels; and
    (c) Identify products and services on or eligible for addition to 
the Javits-Wagner-O'Day Act Procurement List in order to achieve USDA's 
goal to increase participation in this program.



410.002  Procedures.

    Market research must include obtaining information on the commercial 
quality assurance practices as an alternative for Government inspection 
and testing prior to tender for acceptance.



PART 411_DESCRIBING AGENCY NEEDS--Table of Contents



      Subpart 411.1_Selecting and Developing Requirements Documents

Sec.
411.101  Order of precedence for requirements documents.
411.103  Market acceptance.
411.106  Purchase descriptions for service contracts.
411.170  Brand name or equal.
411.171  Solicitation provisions and contract clauses.

       Subpart 411.2_Using and Maintaining Requirements Documents

411.202  Maintenance of standardization documents.

             Subpart 411.4_Delivery or Performance Schedules

411.404  Contract clauses.

                Subpart 411.6_Priorities and Allocations

411.600  Scope of subpart.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



      Subpart 411.1_Selecting and Developing Requirements Documents



411.101  Order of precedence for requirements documents.

    (a) Office of Management and Budget (OMB) Circular A-119 establishes 
a Federal policy requiring the use of voluntary consensus standards in 
lieu of government-unique standards except where inconsistent with law 
or otherwise impractical.
    (b) The HCA is authorized to submit the determination required by 
OMB Circular A-119 that a voluntary standard is inconsistent with law or 
otherwise impracticable. The HCA must submit the determination to OMB 
through the National Institute of Standards and Technology in accordance 
with the Circular with a copy provided to the SPE.

[70 FR 45, Jan. 3, 2005]



411.103  Market acceptance.

    (a) The head of the contracting activity (HCA) may determine that 
offerors must demonstrate, in accordance with FAR 11.103(a), the market 
acceptability of their items to be offered.
    (b) The contracting officer shall place a copy of this 
determination, signed by the HCA, in the solicitation file.



411.106  Purchase descriptions for service contracts.

    When contract personnel are to be used, the requiring official shall 
record on the requisition his or her determination whether harm to the 
Government might occur should contractor

[[Page 93]]

personnel fail to identify themselves as non-Government officials.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 45, Jan. 3, 2005]



411.170  Brand name or equal.

    (a) A ``brand name or equal'' purchase description shall include the 
following type of information:
    (1) Identification of the item by generic description.
    (2) Make, model number, catalog designation, or other description, 
and identification of a commercial catalog where it is listed.
    (3) Name of manufacturer, producer, or distributor of the item and 
complete address.
    (4) All salient characteristics of the ``brand name or equal'' 
product or products which have been determined by the requisitioner to 
be essential to the Government's minimum requirements.
    (b) [Reserved]



411.171  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the provision at 452.211-70, 
Brand Name or Equal, in solicitations, other than those for 
construction, where ``brand name or equal'' purchase descriptions are 
used.
    (b) Contracting officers shall insert the clause at 452.211-71, 
Equal Products Offered, in solicitations, other than those for 
construction, where the provision at 452.211-70 is included.
    (c) Contracting officers shall insert the clause at 452.211-72, 
Statement of Work/Specifications, when the description (statement of 
work) or specification(s) is included in Section J of the solicitation.
    (d) Contracting officers shall insert the clause at 452.211-73, 
Attachment to Statement of Work/Specifications, when there are 
attachments to the description (statement of work) or specifications.

[63 FR 26995, May 15, 1998]



       Subpart 411.2_Using and Maintaining Requirements Documents



411.202  Maintenance of standardization documents.

    Recommendations for changes to standardization documents are to be 
submitted through the Senior Procurement Executive, who will coordinate 
the submission of these recommendations to the cognizant preparing 
activity.



             Subpart 411.4_Delivery or Performance Schedules



411.404  Contract clauses.

    (a) The contracting officer shall insert the clause at 452.211-74, 
Period of Performance, when it is necessary to specify a period of 
performance, beginning on the date of award, date of receipt of notice 
of award, or a specified date.
    (b) The contracting officer shall insert the clause at 452.211-75, 
Effective Period of the Contract, when it is necessary to specify the 
effective period of the contract.

[63 FR 26995, May 15, 1998]



                Subpart 411.6_Priorities and Allocations



411.600  Scope of subpart.

    The Defense Priorities and Allocation System (DPAS) excludes USDA 
activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not 
authorized to place rated orders under DPAS.



PART 412_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents



    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

[[Page 94]]



   Subpart 412.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



412.302  Tailoring of provisions and clauses for the acquisition of
commercial items.

    The head of the contracting activity is authorized to approve 
waivers in accordance with FAR 12.302(c). The approved waiver may be 
either for an individual contract or for a class of contracts for the 
specific item. The approved waiver and supporting documentation shall be 
incorporated into the contract file.

[61 FR 53646, Oct. 15, 1996]

[[Page 95]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES





PART 413_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents



              Subpart 413.3_Simplified Acquisition Methods

Sec.
413.301  Governmentwide commercial purchase card.
413.306  SF 44, Purchase Order-Invoice-Voucher.
413.307  Forms.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 64 FR 45895, Aug. 23, 1999, unless otherwise noted.



              Subpart 413.3_Simplified Acquisition Methods



413.301  Governmentwide commercial purchase card.

    USDA policy and procedures on use of the Governmentwide commercial 
purchase card are established in Departmental Regulation Series 5000.



413.306  SF 44, Purchase Order-Invoice-Voucher.

    The Standard Form 44 (and the previously prescribed USDA Form AD-
744) is not authorized for use within USDA.



413.307  Forms.

    Form AD-838, Purchase Order, is prescribed for use by USDA in lieu 
of Optional Forms (OFs) 347 and 348 except that use of the OF 347 and OF 
348 is authorized when utilizing the USDA Integrated Acquisition System.

[70 FR 45, Jan. 3, 2005]



PART 414_SEALED BIDDING--Table of Contents



                   Subpart 414.2_Solicitation of Bids

Sec.
414.201  Preparation of invitations for bids.
414.201-6  Solicitation provision.

           Subpart 414.4_Opening of Bids and Award of Contract

414.404  Rejection of bids.
414.404-1  Cancellation of invitations after opening.
414.407  Mistakes in bids.
414.407-3  Other mistakes disclosed before award.
414.407-4  Mistakes after award.
414.409  Information to bidders.
414.409-2  Award of classified contracts.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                   Subpart 414.2_Solicitation of Bids



414.201  Preparation of invitations for bids.



414.201-6  Solicitation provision.

    The contracting officer shall insert the provision 452.214-70, Award 
by Lot, when multiple items are segregated into clearly identifiable 
lots and the contracting officer wants to reserve the right to award by 
item within a lot, if award in that manner would be advantageous to the 
Government.



           Subpart 414.4_Opening of Bids and Award of Contract



414.404  Rejection of bids.



414.404-1  Cancellation of invitations after opening.

    An acquisition official at a level above the contracting officer is 
authorized to make the determinations under FAR 14.404-1(c) and (e)(1).



414.407  Mistakes in bids.



414.407-3  Other mistakes disclosed before award.

    The authority to make the determinations under FAR 14.407-3(a), (b), 
and (d) is delegated, without power of redelegation, to the head of the 
contracting activity. The authority to make the determination under FAR 
14.407-3(c) is delegated to the contracting officer. Each determination 
pursuant to FAR 14.407-3 shall have the concurrence of the Office of the 
General Counsel (OGC).

[[Page 96]]



414.407-4  Mistakes after award.

    If a mistake in bid is disclosed after award, the contracting 
officer shall make a final determination in accordance with the 
provisions of FAR 14.407-4 (b) and (c) and shall coordinate each 
proposed determination with OGC. Such coordination shall, at a minimum, 
consist of the contracting officer providing the proposed determination 
and the case file to OGC for comment.



414.409  Information to bidders.



414.409-2  Award of classified contracts.

    Disposition of classified information shall be in accordance with 
Departmental Regulation and Manual (3400 Series) and in accordance with 
direction issued by the Information Security Staff, Personnel and 
Document Security Division, Office of Procurement and Property 
Management.

[70 FR 45, Jan. 3, 2005]



PART 415_CONTRACTING BY NEGOTIATION--Table of Contents



   Subpart 415.2_Solicitation and Receipt of Proposals and Information

Sec.
415.204  Contract format.
415.207  Handling proposals and information.
415.209  Solicitation provisions and contract clauses.

                     Subpart 415.3_Source Selection

415.303  Responsibilities.
415.305  Proposal evaluation.

                     Subpart 415.4_Contract Pricing

415.404-4  Profit.

Subpart 415.5_Preaward, Award, and Postaward Notifications, Protests and 
                                Mistakes

415.570  Post-award conference.

                   Subpart 415.6_Unsolicited Proposals

415.604  Agency points of contact.
415.606  Agency procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 64 FR 52674, Sept. 30, 1999, unless otherwise noted.



   Subpart 415.2_Solicitation and Receipt of Proposals and Information



415.204  Contract format.

    The Senior Procurement Executive is authorized to exempt contracts 
from the uniform contract format.



415.207  Handling proposals and information.

    (a) Throughout the source selection process, agency personnel and 
non-Government evaluators with access to proposal information shall 
disclose neither the number of offerors nor their identity except as 
authorized by FAR subpart 15.5. (See also FAR 5.403.)
    (b) The contracting officer shall obtain the following written 
agreement from the non-Government evaluator prior to the release of any 
proposal to that evaluator.

         Agreement Governing the Use and Disclosure of Proposals

RFP_____________________________________________________________________
Offeror_________________________________________________________________
    1. To the best of my knowledge and belief, no conflict of interest 
exists that may diminish my capacity to perform an impartial and 
objective review of the offeror's proposal, or may otherwise result in a 
biased opinion or an unfair advantage. If a potential conflict of 
interest arises or if I identify such a conflict, I agree to notify the 
Government promptly concerning the potential conflict. In determining 
whether any potential conflict of interest exists, I agree to review 
whether my or my employer's relationships with other persons or 
entities, including, but not limited to, ownership of stocks, bonds, 
other outstanding financial interests or commitments, employment 
arrangements (past, present, or under consideration), and, to the extent 
known by me, all financial interests and employment arrangements of my 
spouse, minor children, and other members of my immediate household, may 
place me in a position of conflict, real or apparent, with the 
evaluation proceedings.
    2. I agree to use proposal information only for evaluation purposes. 
I understand that any authorized restriction on disclosure placed upon 
the proposal by the prospective contractor or subcontractor or by the 
Government shall be applied to any reproduction or abstracted 
information of the proposal. I agree to use my best effort to safeguard 
such information physically, and not to disclose the contents of, or 
release any information relating to, the proposal(s) to anyone outside 
of the Source Evaluation Board or other

[[Page 97]]

panel assembled for this acquisition, the Contracting Officer, or other 
individuals designated by the Contracting Officer.
    3. I agree to return to the Government all copies of proposals, as 
well as any abstracts, upon completion of the evaluation.
________________________________________________________________________
(Name and Organization)
________________________________________________________________________
(Date)

                           (End of provision)

    (c) The release of a proposal to a non-Government evaluator for 
evaluation does not constitute the release of information for purposes 
of the Freedom of Information Act (5 U.S.C. 552).
    (d) The contracting officer shall attach a cover page bearing the 
following notice: GOVERNMENT NOTICE FOR HANDLING PROPOSALS--This 
proposal shall be used and disclosed for evaluation purposes only. 
Attach a copy of this Government notice to every reproduction or 
abstract of the proposal. Any authorized restrictive notices which the 
submitter places on this proposal shall be strictly complied with. 
Disclosure of this proposal outside the Government for evaluation 
purposes shall be made only to the extent authorized by, and in 
accordance with, FAR 3.104-4, FAR 15.207, and AGAR 415.207.

[64 FR 52674, Sept. 30, 1999; 64 FR 54963, Oct. 8, 1999, as amended at 
70 FR 46, Jan. 3, 2005]



415.209  Solicitation provisions and contract clauses.

    (a) The provision at 452.215-71, Instructions for the Preparation of 
Technical and Business Proposals, may be used when offerors will be 
required to submit technical and business proposals. Contracting 
officers should tailor the clause to reflect the degree of information 
required for the specific acquisition.
    (b) The contracting officer shall insert the provision at 452.215-
72, Amendments to Proposals, in solicitations which require the 
submittal of lengthy, complex technical proposals.



                     Subpart 415.3_Source Selection



415.303  Responsibilities.

    The head of the contracting activity (HCA) is authorized to appoint 
an individual other than the contracting officer as the source selection 
authority.



415.305  Proposal evaluation.

    HCAs are responsible for establishing procedures regarding the 
release of cost information to the members of the technical evaluation 
team.



                     Subpart 415.4_Contract Pricing



415.404-4  Profit.

    (a)(1) USDA will use a structured approach to determine the profit 
or fee prenegotiation objective in acquisition actions when price 
negotiation is based on cost analysis.
    (2) The following types of acquisitions are exempt from the 
requirements of the structured approach, but the contracting officer 
shall comply with FAR 15.404-4(d) when analyzing profit for these 
contracts or actions:
    (i) Architect-engineer contracts;
    (ii) Construction contracts;
    (iii) Contracts primarily requiring delivery of material supplied by 
subcontractors;
    (iv) Termination settlements; and
    (v) Cost-plus-award-fee contracts;
    (b) Unless otherwise restricted by contracting activity procedures, 
the Contracting Officer may use another Federal agency's structured 
approach if that approach has been formalized and is maintained as part 
of that Agency's acquisition regulations (i.e., included in that 
Agency's assigned chapter of title 48 of the Code of Federal 
Regulations).
    (c) The HCA is responsible for establishing procedures to ensure 
compliance with this subpart.



Subpart 415.5_Preaward, Award, and Postaward Notifications, Protests and 
                                Mistakes



415.570  Post-award conference.

    If a postaward conference is necessary, the contracting officer 
shall insert clause 452.215-73, Post-Award Conference.

[[Page 98]]



                   Subpart 415.6_Unsolicited Proposals



415.604  Agency points of contact.

    HCAs are responsible for establishing procedures to ensure 
compliance with the requirements of FAR 15.604.



415.606  Agency procedures.

    HCAs are responsible for establishing the procedures for control of 
unsolicited proposals required by FAR 15.606(a) and for identifying the 
contact points as required by FAR 15.606(b).



PART 416_TYPES OF CONTRACTS--Table of Contents



Sec.
416.000  Scope of part.

                   Subpart 416.2_Fixed-Price Contracts

416.203  Fixed-price contracts with economic price adjustment.
416.203-4  Contract clauses.

                    Subpart 416.4_Incentive Contracts

416.405  Cost-reimbursement incentive contracts.
416.405-2  Cost-plus-award-fee contracts.
416.406  Contract clauses.
416.470  Solicitation provision.

               Subpart 416.5_Indefinite-Delivery Contracts

416.505  Ordering.
416.506  Solicitation provision and contract clauses.

   Subpart 416.6_Time-and-Materials, Labor-Hour, and Letter Contracts

416.603  Letter contracts.
416.603-2  Application.
416.603-4  Contract clauses.
416.670  Contract clauses.

                        Subpart 416.7_Agreements

416.702  Basic agreements.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



416.000  Scope of part.

    Heads of contracting activities (HCA's) are authorized to establish 
written procedures allowing the use of any contract type described in 
FAR part 16 for acquisitions made under simplified acquisition 
procedures in FAR part 13.



                   Subpart 416.2_Fixed-Price Contracts



416.203  Fixed-price contracts with economic price adjustment.



416.203-4  Contract clauses.

    An economic price adjustment clause based on cost indexes of labor 
or material may be used under the conditions listed in FAR 16.203-4(d) 
after approval by the HCA and consultation with the Office of the 
General Counsel.



                    Subpart 416.4_Incentive Contracts



416.405  Cost-reimbursement incentive contracts.



416.405-2  Cost-plus-award-fee contracts.

    The HCA may designate an acquisition official other than the 
contracting officer as the fee determination official (FDO) to make the 
final determination of the award fee. The designated official must have 
warranted contracting authority at the same level as the contracting 
officer or higher, and shall not have participated in preparing the 
contractor performance evaluation. If the HCA does not designate an FDO, 
the chief of the contracting office shall act as the FDO.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26995, May 15, 1998.]



416.406  Contract clauses.

    The contracting officer shall insert a clause substantially the same 
as the clause at 452.216-70, Award Fee, in solicitations and contracts 
which contemplate the award of cost-plus-award-fee contracts.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26995, May 15, 1998.]



416.470  Solicitation provision.

    The contracting officer shall insert the provision at 452.216-71, 
Base Fee and Award Fee Proposal, in solicitations which contemplate the 
award of a cost-plus-award-fee contract.

[[Page 99]]



               Subpart 416.5_Indefinite-Delivery Contracts



416.505  Ordering.

    (a) The Chief, Procurement Policy Division, Office of Procurement 
and Property Management, has been designated as the Departmental Task 
Order Ombudsman.
    (b) Each HCA shall designate a task order ombudsman for the 
contracting activity. The HCA shall forward a copy of the designation 
memorandum to the Departmental Task Order Ombudsman. Contracting 
activity ombudsmen shall review and resolve complaints from contractors 
concerning task or delivery orders placed by the contracting activity.
    (c) Any contractor who is not satisfied with the resolution of a 
complaint by a contracting activity ombudsman may request the 
Departmental Task Order Ombudsman to review the complaint.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]



416.506  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert a provision substantially 
the same as the provision at 452.216-72, Evaluation Quantities-
Indefinite-Delivery Contract, in solicitations which contemplate the 
award of indefinite-quantity or requirements contracts to establish the 
basis on which offers will be evaluated.
    (b) The contracting officer shall insert the clause at 452.216-73, 
Minimum and Maximum Contract Amounts, in indefinite-delivery, 
indefinite-quantity contracts when the clause at FAR 52.216-18 is used.



   Subpart 416.6_Time-and-Materials, Labor-Hour, and Letter Contracts



416.603  Letter contracts.



416.603-2  Application.

    The HCA is authorized to extend the period for defining a letter 
contract required by FAR 16.603-2(c) in extreme cases where it is 
determined in writing that such action is in the best interest of the 
Government.



416.603-4  Contract clauses.

    The contracting officer shall insert the clause at 452.216-75, 
Letter Contract, in a definitive contract superseding a letter contract.



416.670  Contract clauses.

    The contracting officer shall limit the Government's obligation 
under a time-and-materials or labor-hour contract by inserting the 
clause at 452.216-74, Ceiling Price.



                        Subpart 416.7_Agreements



416.702  Basic agreements.

    Promptly after execution by the Government, the HCA shall furnish to 
the Senior Procurement Executive a copy of each basic agreement 
negotiated with contractors in accordance with FAR 16.702.



PART 417_SPECIAL CONTRACTING METHODS--Table of Contents



    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



                          Subpart 417.2_Options



417.204  Contracts.

    The head of the contracting activity is authorized to approve 
contracts which exceed the 5 year limitation in FAR 17.204(e).

[61 FR 53646, Oct. 15, 1996]

                           PART 418 [RESERVED]

[[Page 100]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 419_SMALL BUSINESS PROGRAMS--Table of Contents



                         Subpart 419.2_Policies

Sec.
419.201  General policy.
419.201-70  Office of Small and Disadvantaged Business Utilization 
          (OSDBU).
419.201-71  Small business coordinators.
419.201-73  Reports.

               Subpart 419.5_Set-Asides for Small Business

419.508  Solicitation provisions and contract clauses.

     Subpart 419.6_Certificates of Competency and Determinations of 
                             Responsibility

419.602  Procedures.
419.602-1  Referral.
419.602-3  Resolving differences between the agency and the Small 
          Business Administration.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                         Subpart 419.2_Policies

    Source: 70 FR 46, Jan. 3, 2005, unless otherwise noted.



419.201  General policy.

    It is the policy of USDA to provide maximum practicable contracting 
and subcontracting opportunities to small business (SB), small 
disadvantaged business (SDB), HUBZone small business, women-owned 
business (WOB), veteran-owned small business (VOSB), and service-
disabled veteran-owned small business (SDVOSB) concerns.



419.201-70  Office of Small and Disadvantaged Business Utilization (OSDBU).

    The Office of Small and Disadvantaged Business Utilization (OSDBU) 
develops rules, policy, procedures and guidelines for the effective 
administration of USDA's small business program that includes all 
categories named under 419.201.



419.201-71  Small business coordinators.

    The head of the contracting activity (HCA) or a representative of 
the HCA shall designate in writing a small business coordinator in each 
contracting office. Supervisors of small business coordinators are 
encouraged to provide sufficient time for the coordinators to carry out 
their small business program duties. Coordinators' duties shall include, 
but not be limited to, the following:
    (a) Reviewing each proposed acquisition expected to exceed the 
simplified acquisition threshold prior to its solicitation. The 
coordinator shall:
    (1) Recommend section 8(a), HUBZone, or SDVOSB action and identify 
potential contractors, or
    (2) Identify available SDB, WOB, and VOSB to be solicited by 
competitive procedures. Coordinators shall document the contract file 
with recommendations made and actions taken.
    (b) Participating in goal-setting procedures and planning activities 
and establishing aggressive SDB, WOB, and SDVOSB goals based on the 
annual review of advance acquisition plans.
    (c) Participating in the review of those contracts which require the 
successful offeror to submit written plans for the utilization of small 
businesses as subcontractors to include all preference program areas in 
419.201.
    (d) Ensuring that purchases exceeding $2,500 and not exceeding the 
simplified acquisition threshold are reserved exclusively for small 
businesses, including all preference program areas named in 419.201. 
This policy shall be implemented unless the contracting officer is 
unable to obtain offers from two or more small business concerns that 
are competitive with market prices and in terms of quality and delivery 
of the goods or services being purchased.
    (e) Maintaining comprehensive source listings of small businesses.

[[Page 101]]

    (f) Upon written request, providing small businesses (in the 
preference program areas named in 419.201) the bidders' mailing lists of 
individuals receiving solicitations which will contain the 
subcontracting clause entitled ``Utilization of Small Business 
Concerns'' (FAR 52.219-8). These lists may be limited to those supplies 
or services of major interest to the requesting firms.
    (g) Developing a program of contacts with local and small (to 
include all preference program areas named in 419.201) trade, business, 
and professional associations and organizations and Indian tribal 
councils to apprise them of USDA's program needs and recurring contract 
requirements.
    (h) Periodically meeting with program managers to discuss 
requirements of the small business preference program, to explore the 
feasibility of breaking large complex requirements into smaller lots 
suitable for participation by small firms, and to encourage program 
managers to meet with these firms so that their capabilities can be 
demonstrated.
    (i) Establishing internal operating procedures which implement the 
requirements of the regulations as set forth in this part 419.
    (j) Compiling data and preparing all reports pertaining to the small 
business program activities, and ensuring that these reports are 
accurate, complete and up-to-date.
    (k) Assisting and counseling small business firms.
    (l) Reviewing proposed large contract requirements that may be 
bundled to determine the potential for breaking out components suitable 
for purchase from small business firms.
    (m) Ensuring that the SBA Resident Procurement Center Representative 
(PCR) is provided an opportunity and reasonable time to review any 
solicitation that meets the dollar threshold for small business 
(including all preference program areas named in 419.201) subcontracting 
plans.



419.201-73  Reports.

    The Director, OSDBU, shall be responsible for submitting reports 
concerning USDA's progress and achievements in the procurement 
preference program.



               Subpart 419.5_Set-Asides for Small Business



419.508  Solicitation provisions and contract clauses.

    The contracting officer shall insert the provision at 452.219-70, 
Size Standard and NAICS Code Information, in solicitations that are set 
aside for small businesses.

[61 FR 53646, Oct. 15, 1996, as amended at 66 FR 49317, Sept. 27, 2001]



     Subpart 419.6_Certificates of Competency and Determinations of 
                             Responsibility



419.602  Procedures.



419.602-1  Referral.

    Contracting officers shall refer determinations of non-
responsibility regarding small businesses directly to the SBA Regional 
Office servicing the location where the contractor's office (home) is 
located.



419.602-3  Resolving differences between the agency and the Small
Business Administration.

    The HCA is authorized to appeal the issuance of a COC to SBA 
Headquarters as provided by FAR 19.602-3(a).

[63 FR 26995, May 15, 1998]

                        PARTS 420	421 [RESERVED]



PART 422_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
--Table of Contents



                   Subpart 422.1_Basic Labor Policies

Sec.
422.103  Overtime.
422.103-4  Approvals.

       Subpart 422.3_Contract Work Hours and Safety Standards Act

422.302  Liquidated damages and overtime pay.

[[Page 102]]

   Subpart 422.4_Labor Standards for Contracts Involving Construction

422.404  Davis-Bacon Act wage determinations.
422.404-6  Modifications of wage determinations.
422.406  Administration and enforcement.
422.406-8  Investigations.

             Subpart 422.6_Walsh-Healey Public Contracts Act

422.604  Exemptions.
422.604-2  Regulatory exemptions.
422.608  [Reserved]

               Subpart 422.8_Equal Employment Opportunity

422.803  Responsibilities.
422.804  Affirmative action programs.
422.804-2  Construction.
422.807  Exemptions.

 Subpart 422.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans

422.1305  Waivers.
422.1308  Complaint procedures.

         Subpart 422.14_Employment of Workers With Disabilities

422.1403  Waivers.
422.1406  Complaint procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                   Subpart 422.1_Basic Labor Policies



422.103  Overtime.



422.103-4  Approvals.

    Requests for the use of overtime shall be approved by an acquisition 
official at a level above the contracting officer in accordance with the 
procedures in FAR 22.103-4 (a) and (b).



       Subpart 422.3_Contract Work Hours and Safety Standards Act



422.302  Liquidated damages and overtime pay.

    Heads of contracting activities (HCA's) are authorized to review 
determinations of liquidated damages due under section 104(c) of the 
Contract Work Hours and Safety Standards Act, and to take remedial 
action, if appropriate, in accordance with FAR 22.302(c). Contractors or 
subcontractors may request review of administrative determinations of 
liquidated damages by written notice to the contracting officer. The 
contracting officer shall promptly forward appeals of liquidated damages 
determinations to the HCA.



   Subpart 422.4_Labor Standards for Contracts Involving Construction



422.404  Davis-Bacon Act wage determinations.



422.404-6  Modifications of wage determinations.

    HCA's are authorized to request extension of the 90 day period for 
award after bid opening as provided in FAR 22.404-6(b)(6).



422.406  Administration and enforcement.



422.406.8  Investigations.

    Reports of violations shall be forwarded to the HCA, who shall 
process such reports in accordance with FAR 22.406-8(d).



             Subpart 422.6_Walsh-Healey Public Contracts Act



422.604  Exemptions.



422.604-2  Regulatory exemptions.

    The Assistant Secretary for Administration can request the Secretary 
of Labor to exempt contracts from the Walsh-Healey Public Contracts Act 
pursuant to FAR 22.604-2(b). A written finding justifying the request 
for exemption shall be prepared for the Assistant Secretary's signature 
and submitted by the HCA to the Senior Procurement Executive (SPE) for 
referral to the Assistant Secretary.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]

[[Page 103]]



422.608  [Reserved]



               Subpart 422.8_Equal Employment Opportunity



422.803  Responsibilities.

    The contracting office shall submit questions involving the 
applicability of Executive Order 11246 and FAR subpart 22.8 through the 
HCA to the SPE for resolution.



422.804  Affirmative action programs.



422.804-2  Construction.

    The HCA shall ensure that each contracting office, awarding 
nonexempt construction contracts, maintains a current listing of covered 
geographical areas subject to affirmative action requirements specifying 
goals for minorities and women in covered construction trades.



422.807  Exemptions.

    (a) The Assistant Secretary for Administration is authorized to make 
the determination in FAR 22.807(a)(1) that a contract is essential to 
the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE 
for determination by the Assistant Secretary of Administration or 
referral to the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor, as appropriate.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]



 Subpart 422.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans

    Source: 70 FR 46, Jan. 3, 2005, unless otherwise noted.



422.1305  Waivers.

    (a) The Assistant Secretary for Administration is authorized to make 
the waiver determination in FAR 22.1305(b) that a contract is essential 
to the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.1305(a) and (b) through the HCA to the SPE for 
determination by the Assistant Secretary for Administration or referral 
to the Deputy Assistant Secretary for Federal Contract Compliance 
Programs, Department of Labor as appropriate.



422.1308  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of the Vietnam Era Veterans Readjustment Assistance Act 
directly to the Department of Labor as prescribed in FAR 22.1308.



         Subpart 422.14_Employment of Workers With Disabilities



422.1403  Waivers.

    (a) The Assistant Secretary for Administration is authorized to make 
the waiver determinations under FAR 22.1403(a) and (b) with the 
concurrence of the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor.
    (b) The contracting officer shall submit requests for waivers 
through the HCA to the SPE for determination by the Assistant Secretary 
for Administration.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]



422.1406  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of Section 503 of the Rehabilitation Act of 1973, as 
amended, directly to the OFCCP as prescribed in FAR 22.1406.



PART 423_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
--Table of Contents



Subpart 423.1 [Reserved]

     Subpart 423.2_Energy and Water Efficiency and Renewable Energy

Sec.
423.202  Policy.

[[Page 104]]

                Subpart 423.4_Use of Recovered Materials

423.400  Scope of subpart.
423.402  [Reserved]
423.403  Policy.
423.404  Agency affirmative procurement programs.
423.405  Procedures.

                    Subpart 423.5_Drug-Free Workplace

423.506  Suspension of payments, termination of contract, and debarment 
          and suspension actions.

              Subpart 423.6_Notice of Radioactive Material

423.601  Requirements.

 Subpart 423.7_Contracting for Environmentally Preferable Products and 
                                Services

423.703  Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 70 FR 47, Jan. 3, 2005, unless otherwise noted.

Subpart 423.1 [Reserved]



     Subpart 423.2_Energy and Water Efficiency and Renewable Energy



423.202  Policy.

    Information on Energy Star, energy efficient, water efficient, and 
low standby products covered by this policy is available via the 
Internet at http://www.eere.energy.gov/femp/technologies/eeproducts.cfm.



                Subpart 423.4_Use of Recovered Materials



423.400  Scope of subpart.

    This subpart implements and supplements FAR policies and procedures 
for acquiring products and services when preference is given to offers 
of products containing recovered materials. This subpart further 
supplements FAR subpart 23.4 by providing guidance for affirmative 
procurement programs in accordance with Executive Order 13101 and 42 
U.S.C. 6962.



423.402  [Reserved]



423.403  Policy.

    It is the policy of USDA to acquire and use Environmental Protection 
Agency (EPA) designated recycled content products.



423.404  Agency affirmative procurement programs.

    The USDA affirmative procurement program (APP) policy applicable to 
all USDA agencies and staff offices is hereby established. The 
components of this APP include:
    (a) Recovered Materials Preference Program. In accord with the 
requirements of Section 402(c) of Executive Order 13101, Greening the 
Government Through Recycling, Waste Prevention, and Federal Acquisition, 
USDA agencies will include, in all applicable solicitations and 
contracts, a preference for products and services which meet or exceed 
the EPA purchasing guidelines as contained in the EPA product Recovered 
Materials Advisory Notices (RMANs). Agencies may choose an evaluation 
factor preference, or other method of indicating preference in accord 
with their agency needs. Agencies will, as appropriate, eliminate virgin 
material requirements in contract specifications and replace them with a 
statement of preference for recycled materials.
    (b) Promotion program. USDA agencies will actively promote a 
preference for recovered materials, environmentally preferable products, 
and biobased products in contacts with vendors, in written materials, 
and other appropriate opportunities.
    (c) Reasonable estimation of recovered materials used in the 
performance of contracts. USDA agencies annually will provide in writing 
to the USDA Senior Procurement Executive, in response to a call for data 
for the Resource Conservation and Recovery report, reasonable estimates, 
certification, and verification of recovered material used in the 
performance of contracts.
    (d) Annual review and monitoring of effectiveness of the program. 
USDA agencies will provide an annual assessment of the effectiveness of 
their affirmative

[[Page 105]]

procurement program actions in increasing the purchase and use of EPA 
designated products.
    (e) Purchase of EPA designated products. USDA agencies will require 
that 100% of purchases of EPA-designated products contain recovered 
material, unless the item cannot be acquired--
    (1) Competitively within a reasonable time frame;
    (2) Meeting appropriate performance standards; or
    (3) At a reasonable price.
    (f) The 100% purchase requirement of paragraph (e) of this section 
applies to all USDA agency purchases, including those at or below the 
micro-purchase threshold.



423.405  Procedures.

    (a) The threshold of purchase for EPA designated items is $10,000 
per year at the USDA departmental, not individual agency, level. 
Therefore, the APP requirements above, including the 100% purchase 
requirement, apply at the individual agency and staff office level.
    (b) Contracting officers should refer to EPA's list of designated 
products and products identified as recycled content when purchasing 
supplies or services. Information on EPA designated products is 
available at: www.epa.gov/cpg/products.htm.
    (c) All agencies and USDA Contracting Officers must take necessary 
actions to carry out the provisions of the USDA APP policy described in 
this subpart.



                    Subpart 423.5_Drug-Free Workplace



423.506  Suspension of payments, termination of contract, and debarment
and suspension actions.

    (a) The contracting officer may recommend waiver of the 
determination to suspend payments, to terminate a contract, or to debar 
or to suspend a contractor.
    (b) The recommendation shall be submitted through the HCA to the SPE 
and shall include a full description of the disruption of USDA 
operations should the determination not be waived.
    (c) The SPE will submit the request for a waiver to the Secretary 
with a recommendation for action.



              Subpart 423.6_Notice of Radioactive Material



423.601  Requirements.

    The HCA shall establish a system of instructions to identify the 
installation/facility radiation protection officer.



 Subpart 423.7_Contracting for Environmentally Preferable Products and 
                                Services



423.703  Policy.

    (a) USDA's Affirmative Procurement Program promotes energy-
efficiency, water conservation, and the acquisition of environmentally 
preferable products and services. In its acquisitions, USDA will support 
federal ``green purchasing'' principles in the acquisition of products 
and services that are environmentally preferable or that are biobased 
content products and services.
    (b) USDA agencies will actively promote this preference for 
environmentally preferable products and biobased products in contacts 
with vendors, in written materials, and other appropriate opportunities.



PART 424_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
--Table of Contents



             Subpart 424.1_Protection of Individual Privacy

Sec.
424.103  Procedures.
424.104  Contract clauses.

                Subpart 424.2_Freedom of Information Act

424.203  Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

[[Page 106]]



             Subpart 424.1_Protection of Individual Privacy



424.103  Procedures.

    USDA regulations implementing the Privacy Act are found in 7 CFR, 
subtitle A, part 1, subpart G. Contracting officers shall follow these 
regulations when responding to requests for information or awarding 
contracts that will involve the design, development, or operation of a 
system of records on individuals to accomplish agency functions.



424.104  Contract clauses.

    When applicable, the contracting officer shall insert the clause at 
452.224-70, Confidentiality of Information, in contracts involving 
confidential information.



                Subpart 424.2_Freedom of Information Act



424.203  Policy.

    USDA regulations implementing the Freedom of Information Act are 
found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers 
shall follow these regulations when responding to requests for 
information.

[70 FR 48, Jan. 3, 2005]



PART 425_FOREIGN ACQUISITION--Table of Contents



                 Subpart 425.1_Buy American Act_Supplies

Sec.
425.102  [Reserved]
425.103  Exceptions.
425.104  Nonavailable articles.
425.105  Determining reasonableness of cost.
425.108  [Reserved]

          Subpart 425.2_Buy American Act_Construction Materials

425.202  Exceptions.
425.203-425.204  [Reserved]

Subparts 425.3-425.4 [Reserved]

                      Subpart 425.6_Trade Sanctions

425.602  Exceptions.

Subpart 425.9 [Reserved]

        Subpart 425.10_Additional Foreign Acquisition Regulations

425.1001  Waiver of right to examination of records.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                 Subpart 425.1_Buy American Act_Supplies

    Source: 70 FR 48, Jan. 3, 2005, unless otherwise noted.



425.102  [Reserved]



425.103  Exceptions.

    (a) The Senior Procurement Executive (SPE) shall make the 
determination prescribed in FAR 25.103(a).
    (b) Copies of determinations of nonavailability in accordance with 
FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies not 
listed in FAR 25.104, may be submitted to the SPE for submission to the 
Civilian Agency Acquisition Council (CAAC).



425.104  Nonavailable articles.

    Information required by FAR 25.104(b) shall be submitted to the SPE 
for submission to the CAAC.



425.105  Determining reasonableness of cost.

    The SPE may make the determination prescribed in FAR 25.105(a). 
Requests for a determination by the SPE shall be submitted by the HCA, 
in writing, and shall provide a detailed justification supporting why 
evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) 
should be applied to determine whether the offered price of a domestic 
end product is unreasonable.



425.108  [Reserved]



          Subpart 425.2_Buy American Act_Construction Materials



425.202  Exceptions.

    (a) The SPE shall make the determination prescribed in FAR 
25.202(a)(1).
    (b) If a contracting officer proposes that the use of a particular 
domestic

[[Page 107]]

construction material should be waived for a contract on the grounds 
that its use would be impracticable, the contracting officer shall 
submit a proposed determination with supporting information through the 
HCA to the SPE for approval or disapproval.

[63 FR 26995, May 15, 1998, as amended at 70 FR 48, Jan. 3, 2005]



425.203-425.204  [Reserved]

Subparts 425.3-425.4 [Reserved]



                      Subpart 425.6_Trade Sanctions



425.602  Exceptions.

    The Secretary, without power of redelegation, has the authority to 
make the necessary determination(s) and authorize award(s) of 
contract(s) in accordance with FAR 25.602(b).

[70 FR 48, Jan. 3, 2005]

Subpart 425.9 [Reserved]



        Subpart 425.10_Additional Foreign Acquisition Regulations



425.1001  Waiver of right to examination of records.

    The SPE shall make the determination under FAR 25.1001(a)(2)(iii).

[70 FR 48, Jan. 3, 2005]



PART 426_OTHER SOCIOECONOMIC PROGRAMS--Table of Contents



Subpart 426.70 [Reserved]

[[Page 108]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





PART 427_PATENTS, DATA, AND COPYRIGHTS--Table of Contents



    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



                          Subpart 427.1_General



427.104  General guidance.

    As used in FAR part 27, the agency head or agency head designee is 
the Senior Procurement Executive, except under FAR 27.306(a) and (b). 
Under FAR 27.306(a) and (b), the agency head is the Secretary without 
power of redelegation.

[61 FR 53646, Oct. 15, 1996]



PART 428_BONDS AND INSURANCE--Table of Contents



           Subpart 428.1_Bonds and Other Financial Protections

Sec.
428.101  Bid guarantees.
428.101-1  Policy on use.
428.106  Administration.
428.106-6  Furnishing information.

           Subpart 428.2_Sureties and Other Security for Bonds

428.203  Acceptability of individual sureties.
428.204  Alternatives in lieu of corporate or individual sureties.
428.204-2  Certified or cashier's checks, bank drafts, money orders, or 
          currency.

                         Subpart 428.3_Insurance

428.307  Insurance under cost-reimbursement contracts.
428.307-1  Group insurance plans.
428.310  Contract clause for work on a Government installation.
428.370  Government-owned vehicles operated in foreign countries.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



           Subpart 428.1_Bonds and Other Financial Protections



428.101  Bid guarantees.



428.101-1  Policy on use.

    The Senior Procurement Executive may authorize class waivers of the 
requirement to obtain bid guarantees.



428.106  Administration.



428.106-6  Furnishing information.

    Heads of contracting activities (HCA's) or their designees may 
furnish certified copies of bonds and the contracts for which they were 
given as provided by FAR 28.106-6(c). Requesters may be required to pay 
costs of certification and copying established by the Departmental Fee 
Schedule for records requests (7 CFR part 1, subpart A, appendix A).



           Subpart 428.2_Sureties and Other Security for Bonds



428.203  Acceptability of individual sureties.

    Evidence of possible criminal or fraudulent activities by an 
individual surety shall be reported to the Office of Inspector General 
in accordance with Departmental Regulations (1700 series).



428.204  Alternatives in lieu of corporate or individual sureties.

    HCA's shall establish procedures to ensure protection and conveyance 
of deposited securities of the types listed in FAR 28.204-1 through 
28.204-3.



428.204-2  Certified or cashier's checks, bank drafts, money orders,
or currency.

    The contracting officer shall insert the provision at 452.228-70, 
Alternative Forms of Security, in a solicitation if a bond is required.

[[Page 109]]



                         Subpart 428.3_Insurance



428.307  Insurance under cost-reimbursement contracts.



428.307-1  Group insurance plans.

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan to the 
contracting officer for review. During review, the contracting officer 
shall use all sources of information available, such as audits, industry 
practice, or other sources of information, to determine whether 
acceptance of the plan submitted would be in the Government's best 
interest.



428.310  Contract clause for work on a Government installation.

    The contracting officer shall insert the clause at 452.228-71, 
Insurance Coverage, in solicitations and contracts which include the 
clause at FAR 52.228-5, Insurance--Work on a Government Installation. If 
property liability insurance is required, the contracting officer shall 
use the clause with its Alternate I.



428.370  Government-owned vehicles operated in foreign countries.

    USDA is authorized to obtain insurance to cover liability incurred 
by any of its employees while acting within the scope of their 
employment and operating a Government-owned vehicle in a foreign 
country. (7 U.S.C. 2262).

                           PART 429 [RESERVED]



PART 430_COST ACCOUNTING STANDARDS ADMINISTRATION--Table of Contents



Sec.
430.070  Definitions.

                 Subpart 430.2_CAS Program Requirements

430.201  Contract requirements.
430.201-5  Waiver.
430.202  Disclosure requirements.
430.202-2  Impracticality of submission.
430.202-8  Subcontractor Disclosure Statements.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



430.070  Definitions.

    ACO, as used in this part and in FAR part 30, means administrative 
contracting officer as described in FAR part 42.



                 Subpart 430.2_CAS Program Requirements



430.201  Contract requirements.



430.201-5  Waiver.

    The Senior Procurement Executive (SPE), without the authority to 
further redelegate, is authorized to request the Cost Accounting 
Standards Board to waive the application of the Cost Accounting 
Standards (CAS). Contracting officers shall prepare waiver requests in 
accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition), 
subsection 9903.201-5, and submit them to the SPE through the head of 
the contracting activity (HCA).



430.202  Disclosure requirements.



430.202-2  Impracticality of submission.

    (a) The Secretary, without the power to delegate, is authorized to 
determine, in accordance with FAR part 99 (Appendix B), subsection 
9903.202-2, that the Disclosure Statement is impractical to secure and 
to authorize award without obtaining the Disclosure Statement.
    (b) The request for this determination is to be prepared in 
accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is 
to contain the proposed report to the CASB.
    (c) Requests for a determination under paragraph (a) of this section 
shall be prepared by the contracting officer and submitted through the 
HCA to the SPE for concurrence and submittal to the Secretary.



430.202-8  Subcontractor Disclosure Statements.

    (a) The Secretary, without the power to redelegate, is authorized to 
determine that the Disclosure Statement for a subcontractor is 
impractical to secure and to authorize award without obtaining the 
Disclosure Statement.
    (b) Requests for this determination are to be prepared and forwarded 
as described in 430.202-2.

[[Page 110]]



PART 431_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents



    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



                       Subpart 431.1_Applicability



431.101  Objectives.

    (a) The SPE is designated as the official authorized to give advance 
approval of an individual deviation concerning cost principles.
    (b) The SPE is designated as the official authorized to give advance 
approval of a class deviation concerning cost principles after 
coordination with the Civilian Agency Acquisition Council.
    (c) Requests for advance approval of class deviations concerning 
cost principles must be submitted to the SPE through the HCA.

[61 FR 53646, Oct. 15, 1996]



PART 432_CONTRACT FINANCING--Table of Contents



Sec.
432.001  Definitions.
432.003  Simplified acquisition procedures financing.
432.006  Reduction or suspension of contract payments upon finding of 
          fraud.
432.006-2  Definitions.
432.006-3  Responsibilities.
432.006-4  Procedures.
432.006-5  Reporting.
432.007  Contract financing payments.

          Subpart 432.1_Non-Commercial Item Purchase Financing

432.102  Description of contract financing methods.
432.103  Progress payments under construction contracts.
432.111  Contract clauses for non-commercial purchases.
432.113  Customary contract financing.
432.114  Unusual contract financing.

            Subpart 432.2_Commercial Item Purchase Financing

432.202  General.
432.202-1  Policy.
432.202-4  Security for Government financing.
432.206  Solicitation provisions and contract clauses.
432.207  Administration and payment of commercial financing payments.

          Subpart 432.3_Loan Guarantees for Defense Production

432.301  Definitions.

         Subpart 432.4_Advance Payments for Non-Commercial Items

432.402  General.
432.406  Letters of credit.
432.407  Interest.
432.412  Contract clause.

                      Subpart 432.6_Contract Debts

432.601  Definition.
432.616  Compromise actions.

                     Subpart 432.7_Contract Funding

432.703  Contract funding requirements.
432.703-3  Contracts crossing fiscal years.
432.770  USDA specific funding limitations.

                   Subpart 432.8_Assignment of Claims

432.802  Conditions.
432.803  Policies.
432.805  Procedure.
432.806  Contract clauses.

                      Subpart 432.9_Prompt Payment

432.904  Determining payment due dates.

                Subpart 432.10_Performance-Based Payments

432.1007  Administration and payment of performance-based payments.

    Authority: 40 U.S.C. 121, 41 U.S.C. 421.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



432.001  Definitions.

    The agency contract finance office is the office, other than the 
office of the requisitioner, providing funding or performing funding 
record keeping for the contract action.
    Responsible fiscal authority is that officer in the agency contract 
finance office with the responsibility to ensure that adequate funds are 
available and usable for the intended purpose.



432.003  Simplified acquisition procedures financing.

    (a) The chief of the contracting office may approve contract 
financing on a contract to be entered under the simplified acquisition 
procedures. Class approvals may not be made.

[[Page 111]]

    (b) The signed approval must contain the supporting rationale for 
the action and an estimate of the cost and/or risk to the government.



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



432.006-2  Definitions.

    (a) The USDA remedy coordination official (RCO) is the Assistant 
Secretary for Administration.
    (b) For the purposes of this part, head of the agency means, 
exclusively, the Secretary or the Deputy Secretary.



432.006-3  Responsibilities.

    When a contracting officer suspects that a request for advance, 
partial, or progress payment is based on fraud, the request shall be 
referred directly to the Office of Inspector General (OIG) in accordance 
with their instructions. A copy of the referral shall be submitted 
through the head of the contracting activity (HCA) to the Senior 
Procurement Executive (SPE).



432.006-4  Procedures.

    (a) Immediately upon submittal of the referral described in 432.006-
3, the HCA and the contracting officer shall confer with the SPE and 
representatives of the OIG to discuss the potential for reduction or 
suspension of further payments based on the considerations listed in FAR 
32.006-4(d) (1) through (5).
    (b) The SPE will determine whether the contractor has contracts with 
other Departments or contracting activities and will involve them, as 
necessary, in the decision making process.
    (c) The OIG will determine the need for and the extent of an 
investigation.
    (d) Immediately upon completion of the OIG investigation (or, if 
deemed necessary by the OIG and the SPE, before completion of the 
investigation) the SPE, in coordination with the HCA, the contracting 
officer, and the OIG, shall make a report on the action to the RCO.
    (e) Upon receipt of the report, the RCO will submit a recommendation 
to the Secretary.
    (f) Upon receipt of the RCO's report the Secretary will:
    (1) Notify the contractor in writing, allowing 30 calendar days 
after receipt of the notice, that the contractor may submit in writing 
information and arguments in opposition to the recommendation; and
    (2) Consider the RCO's recommendation, the SPE's report, the 
response of the contractor, and any other relevant information in order 
to make an appropriate final determination.
    (g) This determination will be provided to the contractor and to the 
SPE for distribution to the agencies involved and for appropriate action 
under the determination.
    (h) The determination and the supporting documentation will be 
placed in the contract file(s) and a copy will be maintained by the SPE.
    (i) The contracting officer will advise the SPE of the actual date 
of the reduction or suspension action.
    (j) Not later than 150 calendar days after the actual date of the 
reduction or suspension action, the SPE will prepare for the RCO a 
review of the agency head's determination, and will propose a 
recommendation from the RCO to the agency head as to whether the 
reduction or suspension action should continue. The RCO will submit the 
recommendation (including a recommendation for the time period of a 
follow up review) to the agency head. This recommendation will be 
considered by the Secretary and handled as a final action described in 
paragraph (f) of this section.
    (k) The contract may not be closed nor final payment made prior to a 
final determination by the Secretary.



432.006-5  Reporting.

    The annual report required by FAR 32.006-5 is to be prepared by the 
SPE and to be submitted to the Secretary within 90 calendar days after 
the end of the fiscal year. When signed by the Secretary, the report is 
to be maintained by the SPE.



432.007  Contract financing payments.

    The HCA may prescribe, on a case-by-case basis, a shorter period for 
financing payments.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]

[[Page 112]]



          Subpart 432.1_Non-Commercial Item Purchase Financing



432.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under USDA contracts or 
subcontracts for construction, alteration or repair, and shipbuilding 
and conversion. Such payments also are authorized for service contracts, 
if the contracting officer determines that progress payments based on 
costs are not practicable and adequate safeguards are provided to 
administer progress payments based on a percentage or stage of 
completion. For all other contracts, progress payment provisions shall 
be based on costs except that the HCA may authorize progress payments 
based on a percentage or stage of completion on a case-by-case basis. 
Each authorization by the HCA shall include a determination and finding 
that progress payments based on costs cannot be employed practically and 
that there are adequate safeguards provided for the administration of 
progress payments based on a percentage or stage of completion.



432.103  Progress payments under construction contracts.

    (a) When approving a progress payment under a construction contract, 
the contracting officer shall indicate the amount to be paid by the 
payment office and include in the contract file the rationale in support 
of the payment.
    (b) When a retainage is made on a progress payment under a 
construction contract, the contracting officer shall place in the 
contract file a written determination stating the reason(s) for the 
retainage.
    (c) When a progress payment under a construction contract has been 
approved, the amount to be paid, the amount of any retainage withheld, 
and the reason(s) for the retainage shall be provided to the contractor 
by the contracting officer in writing before the payment due date.
    (d) When the contractor, under a fixed-price construction contract, 
furnishes evidence to the contracting officer that the surety has been 
paid in full for bond premiums and requests reimbursement, the first 
subsequent progress payment shall include the total amount attributable 
to such bond premiums and the Government shall pay that amount in full. 
This amount paid for the bond premiums is not an amount in addition to 
the stated contract price.



432.111  Contract clauses for non-commercial purchases.

    The contracting officer shall insert the clause at 452.232-70, 
Reimbursement for Bond Premiums--Fixed Price Construction Contracts, 
whenever the clause at FAR 52.232-5, Payments under Fixed-Price 
Construction Contracts, is used in a contract.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]



432.113  Customary contract financing.

    The contracting officer may determine the necessity for customary 
contract financing. The determination and finding that customary 
contract financing is needed shall be placed in the contract file.



432.114  Unusual contract financing.

    The HCA is authorized to approve unusual contract financing. The 
signed determination and finding supporting this approval shall be 
included in the contract file.



            Subpart 432.2_Commercial Item Purchase Financing



432.202  General.



432.202-1  Policy.

    In the case of unusual contract financing, the approval by the HCA 
shall be recorded in a determination and finding and maintained in the 
contract file.



432.202-4  Security for Government financing.

    Prior to determining that an offeror's financial condition is 
adequate security, the contracting officer must obtain the concurrence 
of the funding activity in the proposed determination.

[[Page 113]]



432.206  Solicitation provisions and contract clauses.

    The responsibility for administration of the liquidation provisions 
of a contract may not be transferred from the contracting officer.



432.207  Administration and payment of commercial financing payments.

    The responsibility for receiving, reviewing, and approval of 
contract financing requests may not be transferred from the contracting 
officer.



          Subpart 432.3_Loan Guarantees for Defense Production



432.301  Definitions.

    Within this subpart, the ``agency'' or ``guaranteeing agency'' is 
the ``head of the contracting activity'' (HCA) and may not be 
redelegated.



         Subpart 432.4_Advance Payments for Non-Commercial Items



432.402  General.

    The HCA is designated as the individual responsible for making the 
findings and determination, and for approval of the contract terms 
concerning advance payments.



432.406  Letters of credit.

    The HCA is designated as the individual responsible for coordination 
with the Department of Treasury concerning letters of credit.



432.407  Interest.

    (a) The HCA is designated as the individual who may authorize, on a 
case by case basis, advance payments without interest for the contract 
types described in FAR 32.407(d)(1), (2), (3), and (4). The signed 
determination and findings supporting these authorizations shall be 
included in the contract files.
    (b) The SPE is designated as the individual who may authorize 
advance payments without interest other than those described in 
paragraph (a) of this section.



432.412  Contract clause.

    The decision to use Alternates I or III to clause 52.232-12 must be 
supported by a determination and finding.



                      Subpart 432.6_Contract Debts



432.601  Definition.

    Responsible official means the contracting officer.



432.616  Compromise actions.

    Compromise of a debt within the proceedings under appeal to the 
Civilian Board of Contract Appeals is the responsibility of the 
contracting officer.

[72 FR 31438, June 7, 2007]



                     Subpart 432.7_Contract Funding



432.703  Contract funding requirements.



432.703-3  Contracts crossing fiscal years.

    Funds appropriated to USDA may be used for one-year contracts which 
are to be performed in two fiscal years so long as the total amount for 
such contracts is obligated in the year for which the funds are 
appropriated (7 U.S.C. 2209c).



432.770  USDA specific funding limitations.

    (a) The USDA is authorized to subscribe for newspapers as may be 
necessary to carry out its authorized work: Provided, that such 
subscriptions shall not be made unless provision is made therefor in the 
applicable appropriation and the cost thereof is not in excess of 
limitations prescribed therein (7 U.S.C. 2258).
    (b) The expenditure of any USDA appropriation for any consulting 
service through any contract, pursuant to section 3109 of Title 5 of the 
U.S. Code shall be limited to those contracts where such expenditures 
are a matter of public record and available for public inspection, 
except where otherwise provided under existing law, or under existing 
Executive Order issued pursuant to existing law (7 U.S.C. 2225a).

[[Page 114]]



                   Subpart 432.8_Assignment of Claims



432.802  Conditions.

    Written notices of assignment and a true copy of the assigned 
instrument are to be sent to the contracting officer rather than the 
agency head. Other copies are distributed as directed in FAR 32.802.



432.803  Policies.

    The HCA may make a determination of need to include a no-setoff 
commitment in a contract.



432.805  Procedure.

    The information described in FAR 32.805 shall be filed with the 
contracting officer.



432.806  Contract clauses.

    The contracting officer may make the determination whether to 
include the clause at FAR 52.232-23 in any purchase order expected to 
exceed the micro-purchase threshold.



                      Subpart 432.9_Prompt Payment



432.904  Determining payment due dates.

    The payment terms for supplies and services on the Procurement List 
and provided by a Javits-Wagner-O'Day Act participating nonprofit agency 
are governed by FAR 8.709.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]



                Subpart 432.10_Performance-Based Payments



432.1007  Administration and payment of performance-based payments.

    The responsibility for receiving, reviewing, and approval of 
performance-based payment requests may not be transferred from the 
contracting officer.



PART 433_PROTESTS, DISPUTES AND APPEALS--Table of Contents



                         Subpart 433.1_Protests

Sec.
433.102  General.
433.103  Protests to the agency.
433.104  [Reserved]

                   Subpart 433.2_Disputes and Appeals

433.203  Applicability.
433.203-70  Civilian Board of Contract Appeals.
433.209  Suspected fraudulent claims.

    Authority: 40 U.S.C. 121, 41 U.S.C. 421.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                         Subpart 433.1_Protests



433.102  General.

    (a) The Senior Procurement Executive (SPE) is responsible for 
coordinating the handling of bid protests lodged with the Government 
Accountability Office (GAO).
    (b) The head of the contracting activity (HCA), on a non-delegable 
basis, may resolve protests and authorize reimbursement of costs in 
accordance with FAR 33.102(b).

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]



433.103  Protests to the agency.

    (a) Actual or prospective bidders or offerors may file protests 
either with the HCA, as provided by 433.102(b), or with the contracting 
officer. Protesters who file protests with the HCA shall furnish a 
complete copy to the contracting officer no later than 1 day after the 
protest is filed with the HCA.
    (b) When a protest is received, the adjudicating official shall take 
prompt action towards resolution and notify the protester in writing of 
the action taken. The written final decision shall include a paragraph 
substantially as follows:

    This decision shall be final and conclusive unless a further written 
notice of protest is filed with the Government Accountability Office in 
accordance with 4 CFR part 21. Neither the filing of a protest with USDA 
nor the filing of a protest with the Government Accountability Office 
affects your right to file an action in a district court of the United 
States or the United States Court of Federal Claims.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]

[[Page 115]]



433.104  [Reserved]



                   Subpart 433.2_Disputes and Appeals



433.203  Applicability.

    The Assistant Secretary for Administration is authorized to 
determine the applicability of the Contract Disputes Act to contracts 
with foreign governments pursuant to FAR 33.203.



433.203-70  Civilian Board of Contract Appeals.

    The organization, jurisdiction, and functions of the Civilian Board 
of Contract Appeals, together with its Rules of Procedure, are set out 
in 48 CFR part 6101.

[72 FR 31438, June 7, 2007]



433.209  Suspected fraudulent claims.

    The contracting officer shall refer all matters related to suspected 
fraudulent claims by a contractor under the conditions in FAR 33.209 to 
the Office of Inspector General for additional action or investigation.

[[Page 116]]



             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING





PART 434_MAJOR SYSTEM ACQUISITION--Table of Contents



                          Subpart 434.0_General

Sec.
434.001  Definitions.
434.002  Policy.
434.003  Responsibilities.
434.004  Acquisition strategy.
434.005  General requirements.
434.005-6  Full production.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 70 FR 49, Jan. 3, 2005, unless otherwise noted.



                          Subpart 434.0_General



434.001  Definitions.

    Pursuant to OMB Circular No. A-109 (A-109) and the definition at FAR 
2.101, within USDA, a system shall be considered a major system if:
    (a) The total acquisition costs (for information technology, life 
cycle costs) are estimated to be $50 million or more, or
    (b) The system, regardless of estimated acquisition or life cycle 
costs, has been specifically designated to be a major system by the USDA 
Acquisition Executive or by the Major Information Technology Systems 
Executive.



434.002  Policy.

    In addition to the policy guidance at FAR 34.002 and other parts of 
the FAR, the policies outlined in paragraph 6 of A-109 should serve as 
guidelines for all contracting activities in planning and developing 
systems, major or otherwise.



434.003  Responsibilities.

    (a) The Secretary of Agriculture or other designated USDA key 
executive is responsible for making four key decisions in each major 
system acquisition process. These are listed in paragraph 9 of A-109 and 
elaborated on in paragraphs 10 through 13. The key executives of USDA 
(Secretary, Deputy Secretary, Under Secretaries and Assistant 
Secretaries) individually or as a group will participate in this 
decision making process.
    (b) The Chief Information Officer (CIO) is the Major Information 
Technology Systems Executive. For acquisitions of information 
technology, the CIO will ensure that A-109 is implemented in USDA and 
that the management objectives of the Circular are realized. The CIO is 
responsible for designating the program manager for each major 
information technology system acquisition, designating an acquisition to 
be a major information technology system acquisition, and approving the 
written charter and project control system for each major information 
technology system acquisition.
    (c) The Assistant Secretary for Administration (ASA) is the USDA 
Acquisition Executive for major system acquisitions other than 
acquisitions of information technology. The ASA will ensure that A-109 
is implemented in USDA and that the management objectives of the 
Circular are realized. The ASA is responsible for designating the 
program manager for each major system acquisition, designating an 
acquisition to be a major system acquisition, and approving the written 
charter and project control system for each major system acquisition.
    (d) Heads of contracting activities must:
    (1) Ensure compliance with the requirements of A-109, FAR Part 34 
and AGAR Part 434.
    (2) Ensure that potential major system acquisitions are brought to 
the attention of the USDA Acquisition Executive or the Major Information 
Technology Systems Executive, as appropriate.
    (3) Recommend qualified candidates for designation as program 
managers for each major system acquisition within their jurisdiction.
    (4) Ensure that program managers fulfill their responsibilities and 
discharge their duties.
    (5) Cooperate with the ASA and Major Information.
    Technology Systems Executive in implementing the requirements of A-
109.

[[Page 117]]

    (e) The program manager is responsible for planning and executing 
the major system acquisition, ensuring appropriate coordination with the 
USDA Acquisition Executive and Major Information Technology Systems 
Executive and other key USDA executives.



434.004  Acquisition strategy.

    (a) The program manager will develop, in coordination with the 
Acquisition Executive or Major Information Technology Systems Executive, 
a written charter outlining the authority, responsibility, 
accountability, and budget for accomplishing the proposed objective.
    (b) The program manager will develop, subject to the approval of the 
Acquisition Executive or Major Information Technology Systems Executive, 
a project control system to schedule, monitor, and regularly report on 
all aspects of the project. The control system shall establish reporting 
periods and milestones consistent with the key decisions listed in 
paragraph 9 of A-109.
    (c) Upon initiation of the project, the program manager will report 
regularly to the Acquisition Executive or Major Information Technology 
Systems Executive.
    (d) Specific procedures and requirements for information technology 
systems are included in the USDA Information Technology Capital Planning 
and Investment Control Guide which can be accessed on the USDA OCIO Web 
site at http://www.ocio.usda.gov.



434.005  General requirements.



434.005-6  Full production.

    The Secretary or the USDA key executive designated by the Secretary 
for the specific program is the agency head for the purposes of FAR 
34.005-6.



PART 435_RESEARCH AND DEVELOPMENT CONTRACTING--Table of Contents



    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



435.010  Scientific and technical reports.

    Research and development contracts shall contain a provision 
requiring that the contractor send copies of all scientific and 
technical reports to the National Technical Information Service at the 
address indicated in FAR 35.010(b). The release of research and 
development contract results to other government activities and to the 
private sector is subject to the provisions of FAR subpart 4.4.

[61 FR 53646, Oct. 15, 1996]



PART 436_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
--Table of Contents



      Subpart 436.2_Special Aspects of Contracting for Construction

Sec.
436.201  Evaluation of contractor performance.
436.203  Government estimate of construction costs.
436.204  Disclosure of the magnitude of construction projects.
436.205  Statutory cost limitations.
436.209  Construction contracts with architect-engineer firms.
436.213  Special procedures for sealed bidding in construction 
          contracting.
436.213-2  Presolicitation notices.

Subpart 436.3 [Reserved]

                     Subpart 436.5_Contract Clauses

436.500  Scope of subpart.
436.571  Prohibition against the use of lead-based paint.
436.572  Use of premises.
436.573  Archeological or historic sites.
436.574  Control of erosion, sedimentation, and pollution.
436.575  Maximum workweek-construction schedule.
436.576  Samples and certificates.
436.577  Emergency response.
436.578  Contract clause.
436.579  Opted timber sale road requirements.

                Subpart 436.6_Architect-Engineer Services

436.601  Policy.
436.601-3  Applicable contracting procedures.
436.602  Selection of firms for architect-engineer contracts.
436.602-1  Selection criteria.
436.602-2  Evaluation boards.
436.602-3  Evaluation board functions.
436.602-4  Selection authority.
436.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.
436.603  Collecting data on and appraising firms' qualifications.

[[Page 118]]

436.604  Performance evaluation.
436.605  Government cost estimate for architect-engineer work.
436.609  Contract clauses.
436.609-1  Design within funding limitations.
436.670  Firms ineligible for award--construction.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 121(c)

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



      Subpart 436.2_Special Aspects of Contracting for Construction



436.201  Evaluation of contractor performance.

    Preparation of performance evaluation reports. In addition to the 
requirements of FAR 36.201, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the contract 
maximum or the contracting activity's reasonable estimate of services to 
be ordered exceeds $500,000.00. For these contracts, performance 
evaluation reports shall be prepared for each order at the time of final 
acceptance of the work under the order.



436.203  Government estimate of construction costs.

    For acquisitions using sealed bid procedures, the contracting 
officer may disclose the overall amount of the Government's estimate of 
construction costs following identification of the responsive bid most 
advantageous to the Government; verification of that bid's price 
reasonableness; and verification of the bidder's responsibility. For 
acquisitions using other than sealed bid procedures (e.g., negotiation), 
the contracting officer may disclose the overall amount of the estimate 
after contract award.



436.204  Disclosure of the magnitude of construction projects.

    In the case of indefinite-delivery type contracts, the reasonable 
estimate of work to be done or the maximum in the solicitation, both 
including all options, is to be used to select the price range. 
Contracting officers may elect to use both a price range for the base 
period of services and the total, inclusive of options, to best describe 
the magnitude of the solicitation.



436.205  Statutory cost limitations.

    (a) When it appears that funds available for a project may be 
insufficient for all the desired features of construction, the 
contracting officer may provide in the solicitation for a base bid item 
covering the work generally as specified and for one or more additive or 
deductive bid items which progressively add or omit specified features 
of the work in a stated order of priority. In this case, the contracting 
officer shall insert the provision at 452.236-70, Additive or Deductive 
Items, in solicitations for construction.
    (b) In the alternative to the process in paragraph (a) of this 
section, the contracting officer may use the policies and procedures 
found in FAR 17.2.



436.209  Construction contracts with architect-engineer firms.

    The head of the contracting activity (HCA) is authorized to approve 
the award of a contract to construct a project, in whole or in part, to 
the firm (inclusive of its subsidiaries or affiliates) that designed the 
project.



436.213  Special procedures for sealed bidding in construction contracting.



436.213-2  Presolicitation notices.

    The authority to waive a presolicitation notice is restricted to the 
HCA.

[63 FR 26995, May 15, 1998]

Subpart 436.3 [Reserved]



                     Subpart 436.5_Contract Clauses



436.500  Scope of subpart.

    This subpart prescribes clauses for insertion in USDA solicitations 
and contracts for construction and for dismantling, demolition, or 
removal of improvements or structures. The contracting officer shall use 
the clauses as prescribed, in contracts that exceed the simplified 
acquisition threshold. The contracting officer may use the clauses if 
the contract amount is expected to be within the simplified acquisition 
threshold.

[[Page 119]]



436.571  Prohibition against the use of lead-based paint.

    The contracting officer shall insert the clause at 452.236-71, 
Prohibition Against the Use of Lead-Based Paint, in solicitations and 
contracts, if the work involves construction or rehabilitation 
(including dismantling, demolition, or removal) of residential 
structures. This clause may be used in contracts for other than 
residential structures.



436.572  Use of premises.

    The contracting officer shall insert the clause at 452.236-72, Use 
of Premises, if the contractor will be permitted to use land or premises 
administered by USDA.



436.573  Archeological or historic sites.

    The contracting officer shall insert the clause at 452.236-73, 
Archeological or Historic Sites, if the contractor will be working in an 
area where such sites may be found. Use of the clause is optional in 
service contracts for on-the-ground work, e.g., reforestation, 
silvicultural, land stabilization, or other agricultural-related 
projects.



436.574  Control of erosion, sedimentation, and pollution.

    The contracting officer shall insert the clause at 452.236-74, 
Control of Erosion, Sedimentation and Pollution, if there is a need for 
applying environmental controls in the performance of work. Use of the 
clause is optional in service contracts for on-the-ground e.g., 
reforestation, silvicultural, land stabilization, or other agricultural-
related projects.



436.575  Maximum workweek-construction schedule.

    The contracting officer shall insert the clause at 452.236-75, 
Maximum Workweek-Construction Schedule, if the clause at FAR 52.236-15 
is used and the contractor's work schedule is restricted by access to 
the facility or must be coordinated with the schedule of contract 
administration personnel.

[63 FR 26996, May 15, 1998]



436.576  Samples and certificates.

    The contracting officer shall insert the clause at 452.236-76, 
Samples and Certificates, in all contracts.



436.577  Emergency response.

    The contracting officer may insert the clause at 452.236-77, 
Emergency Response, in construction contracts awarded for the Forest 
Service.



436.578  Contract clause.

    Insert the clause at 452.236-78, Fire Suppression and Liability in 
solicitations and contracts for Integrated Resource Service Contracts 
(IRSC) awarded for the Forest Service.

[81 FR 7480, Feb. 12, 2016]



436.579  Opted timber sale road requirements.

    The contracting officer shall insert the clause at 452.236-79, Opted 
Timber Sale Road Requirements, in road construction contracts resulting 
from a timber sale turnback.



                Subpart 436.6_Architect-Engineer Service



436.601  Policy.



436.601-3  Applicable contracting procedures.

    The technical official's listing of areas where recovered materials 
cannot be used shall be referred to the contracting activity's official 
designated in accordance with FAR 23.404. A copy of the listing and of 
any approval or disapproval by that official is to be retained in the 
solicitation file.



436.602  Selection of firms for architect-engineer contracts.



436.602-1  Selection criteria.

    The HCA is authorized to approve the use of design competition under 
the conditions in FAR 36.602-1(b).



436.602-2  Evaluation boards.

    HCA's shall establish written procedures for providing permanent or 
ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-
2. The procedures may provide for the appointment of private 
practitioners of

[[Page 120]]

architecture, engineering, or related professions when such action is 
determined by the HCA to be essential to meet the Government's minimum 
needs.



436.602-3  Evaluation board functions.

    The selection report required in FAR 36.602-3(d) shall be prepared 
for the approval of the HCA. The HCA may authorize an acquisition 
official above the level of the contracting officer to execute the 
required approval.



436.602-4  Selection authority.

    (a) The HCA shall serve as the selection authority in accordance 
with FAR 36.602-4. The HCA may authorize an acquisition official above 
the level of the contracting officer to serve as the selection 
authority.
    (b) A copy of the final selection, inclusive of the supporting 
documents, shall be provided to the contracting officer and maintained 
in the solicitation file.



436.602-5  Short selection process for contracts not to exceed the
simplified acquisition threshold.

    The HCA may include either or both procedures in FAR 36.602-5 in the 
procedures for evaluation boards.



436.603  Collecting data on and appraising firms' qualifications.

    (a) HCA's which require architect-engineer services shall establish 
procedures to comply with the requirements of FAR 36.603.
    (b) The procedures shall include a list of names, addresses, and 
phone numbers of offices or boards assigned to maintain architect-
engineer qualification data files. The list shall be updated annually.



436.604  Performance evaluation.

    Preparation of performance evaluation reports. (a) In addition to 
the requirements of FAR 36.604, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the contract 
maximum or the contracting activities reasonable estimate of services to 
be ordered exceeds $25,000.00. For these contracts, performance 
evaluation reports shall be prepared for each order at the time of final 
acceptance of the work under the order.
    (b) The contracting officer may require a performance evaluation 
report on the work done by the architect-engineer after the completion 
of or during the construction of the designed project.



436.605  Government cost estimate for architect-engineer work.

    The contracting officer may release the Government's total cost 
estimate in accordance with FAR 36.605(b).



436.609  Contract clauses.



436.609-1  Design within funding limitations.

    (a) Should the head of the contracting activity appoint a designee 
to make the determination in FAR 36.609-1(c)(1), the appointment may be 
to one no lower than the official authorized to commit program funds for 
the work being acquired.
    (b) The contracting officer, with the advice of appropriate 
technical representatives, may make the determination in FAR 36.609-
1(c)(2) or (3).
    (c) A copy of the determinations described in paragraph (b) and (c) 
of this section shall be maintained in the contract file.



436.670  Firms ineligible for award--construction.

    The contracting officer shall insert the clause at 452.236-80, Firms 
Ineligible For Award--Construction, in the contract for architect-
engineering services except as provided in FAR 36.209 and AGAR 436.209.



PART 437_SERVICE CONTRACTING--Table of Contents



                 Subpart 437.1_Service Contracts_General

Sec.
437.104  Personal services contracts.
437.110  Solicitation provisions and contract clauses.

             Subpart 437.2_Advisory and Assistance Services

437.203  Policy.
437.204  Guidelines for determining availability of personnel.

[[Page 121]]

437.270  Solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                 Subpart 437.1_Service Contracts_General



437.104  Personal services contracts.

    USDA has the following specific statutory authorities to contract 
for personal services:
    (a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) 
authorizes contracting with persons or organizations on a temporary 
basis, without regard to civil service compensation classification 
standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, 
Provided:
    (1) That no expenditures shall be made unless specifically provided 
for in the applicable appropriation, and
    (2) Expenditures do not exceed any limitations prescribed in the 
appropriation.
    (b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to 
contract with technically qualified persons, firms or organizations to 
perform research, inspection, classification, technical, or other 
special services, without regard to the civil-service laws, Provided: it 
is for a temporary basis and for a term not to exceed six months in any 
fiscal year.



437.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-70, Loss Damage, Destruction or Repair, in 
contracts for equipment rental, whether the equipment is furnished with 
or without operator.
    (b) The contracting officer shall insert a provision substantially 
the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, 
in all solicitations if a conference with prospective offerors will be 
held prior to the submittal of bids or proposals.
    (c) The contracting officer shall insert the provision at 452.237-
73, Equipment Inspection visit, in solicitations if work is to be done 
on Government equipment and an offeror's inspection is encouraged for an 
understanding of the work to be performed prior to submittal of bids or 
proposals.
    (d) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-74, Key Personnel, in contracts if 
contract performance requires identification of the contractor's key 
personnel.
    (e) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-75, Restrictions Against Disclosure, in 
service contracts (including architect-engineer contracts) requiring 
restrictions on release of information developed or obtained in 
connection with performance of the contract.



             Subpart 437.2_Advisory and Assistance Services



437.203  Policy.

    Contracting for advisory and assistance services is subject to the 
policy and procedures in Departmental Regulations (5000 series).



437.204  Guidelines for determining availability of personnel.

    The head of the contracting activity (HCA) is authorized to approve 
the use of non-Government evaluators in proposal evaluation. Each such 
decision shall be supported by a written determination in accordance 
with FAR 37.204.

[64 FR 52675, Sept. 30, 1999]



437.270  Solicitation and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-76, Progress Reporting, in all contracts 
for advisory and assistance services. It may also be used in other 
service contracts.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-78, Contracts with Consulting Firms for 
Services, in solicitations and contracts for consulting services which 
prohibit follow-on contracts with the contracting firm.

                           PART 438 [RESERVED]

[[Page 122]]



PART 439_ACQUISITION OF INFORMATION TECHNOLOGY--Table of Contents



                          Subpart 439.1_General

Sec.
439.101  Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



                          Subpart 439.1_General



439.101  Policy.

    (a) In addition to policy and regulatory guidance contained in the 
FAR and AGAR:
    (1) The USDA Information Technology Capital Planning and Investment 
Control Guide (CPIC) establishes requirements for the acquisition of 
information technology.
    (2) Specific thresholds at which USDA Office of the Chief 
Information Officer Information Technology Acquisition Approval is 
required have been established.
    (3) The procurement authority delegated to USDA Agencies is 
established in Departmental Regulations 5000 series.
    (4) The CPIC Guide and USDA CIO policy and procedural guidance are 
available on the USDA OCIO Web site at http://www.ocio.usda.gov. Notices 
of changes in the Information Technology Acquisition Approval Thresholds 
are also promulgated by AGAR Advisory.
    (b) Acquisition of on-line courseware libraries and learning 
management system services requires specific approval of the ASA and 
CIO. Information regarding the specific approval requirements and 
processes is promulgated by AGAR Advisory.

[70 FR 49, Jan. 3, 2005]

                           PART 440 [RESERVED]



PART 441_ACQUISITION OF UTILITY SERVICES--Table of Contents



    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



                Subpart 441.2_Acquiring Utility Services



441.201  Policy.

    As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency 
head designee is the head of the contracting activity.

[61 FR 53646, Oct. 15, 1996]

[[Page 123]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT





PART 442_CONTRACT ADMINISTRATION--Table of Contents



  Subpart 442.1_Interagency Contract Administration and Audit Services

Sec.
442.102  Procedures.

            Subpart 442.15_Contractor Performance Information

442.1502  Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



  Subpart 442.1_Interagency Contract Administration and Audit Services



442.102  Procedures.

    (a) The Office of Inspector General (OIG), Audit Division, has 
established a cross-servicing arrangement with the Defense Contract 
Audit Agency (DCAA) to provide contract audit services required by the 
FAR.
    (b) All contract audit services required by contracting officers, 
except those which can be accomplished in-house, shall be coordinated 
through the cognizant OIG Regional Inspector General--Auditing (RIG-A). 
Cognizance is determined on the basis of the contractor's location. 
There is no charge for DCAA audit services coordinated through OIG.
    (c) In order to ensure compliance with this requirement and to 
evaluate the results of audits, contracting officers shall forward to 
the RIG-A copies of all price negotiation memoranda prepared for 
contracts and contract modifications in excess of $500,000.



            Subpart 442.15_Contractor Performance Information



442.1502  Policy.

    The Contractor Performance System (CPS), developed by the National 
Institutes of Health, is designated as the single USDA-wide system for 
maintaining contractor performance/evaluation information. Use of the 
CPS is mandatory. As a minimum, the CPS shall be accessed for contractor 
past performance information as part of proposal evaluation in 
accordance with FAR subpart 15.3, and information resulting from the 
evaluation of contractor performance in accordance with FAR subpart 
42.15 shall be entered into and maintained in this system. The CPS is a 
part of the USDA Acquisition Toolkit which can be accessed from the USDA 
Procurement Homepage at http://www.usda.gov/procurement/.

[66 FR 49867, Oct. 1, 2001]

                        PARTS 443	444 [RESERVED]



PART 445_GOVERNMENT PROPERTY--Table of Contents



       Subpart 445.3_Providing Government Property to Contractors

Sec.
445.302  Providing facilities.
445.302-1  Policy.

     Subpart 445.4_Contractor Use and Rental of Government Property

445.403  Rental--Use and Charges clause.
445.407  Non-Government use of plant equipment.

Subpart 445.6 [Reserved]

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



       Subpart 445.3_Providing Government Property to Contractors



445.302  Providing facilities.



445.302-1  Policy.

    Heads of contracting activities (HCA's) are authorized to make 
determinations for providing facilities to a contractor as prescribed in 
FAR 45.302-1(a)(4).

[[Page 124]]



     Subpart 445.4_Contractor Use and Rental of Government Property



445.403  Rental--Use and Charges clause.

    HCA's are authorized to make determinations for charging rent on the 
basis of use under the Use and Charges clause in FAR 52.245-9 as 
prescribed in FAR 45.403(a).



445.407  Non-Government use of plant equipment.

    Requests for non-Government use of plant equipment as prescribed in 
FAR 45.407 shall be submitted by the HCA to the Senior Procurement 
Executive (SPE) for approval.

Subpart 445.6 [Reserved]



PART 446_QUALITY ASSURANCE--Table of Contents



    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).



                     Subpart 446.3_Contract Clauses



446.370  Inspection and acceptance.

    The Contracting Officer shall insert the clause at 452.246-70, 
Inspection and Acceptance, in contracts where inspection and acceptance 
will be performed at the same location. The clause with its Alternate I 
is for use when inspection and acceptance will be performed at different 
locations.

[61 FR 53646, Oct. 15, 1996]



PART 447_TRANSPORTATION--Table of Contents



            Subpart 447.3_Transportation in Supply Contracts

Sec.
447.302  Place of delivery--F.O.B. point.
447.305  Solicitation provisions, contract clauses, and transportation 
          factors.
447.305-10  Packing, marking, and consignment instructions.

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



            Subpart 447.3_Transportation in Supply Contracts



447.302  Place of delivery--F.O.B. point.

    The contracting officer shall insert a clause substantially the same 
as the clause at 452.247-70, Delivery Location, in supply contracts when 
it is necessary to specify delivery locations. If appropriate, the 
clause may reference an attachment which lists various delivery 
locations and other delivery details (e.g., quantities to be delivered 
to each location, etc.).



447.305  Solicitation provisions, contract clauses, and transportation factors.



447.305-10  Packing, marking, and consignment instructions.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.247-71, Marking Deliverables, in solicitations 
and contracts if special marking on deliverables (other than reports) 
are required.
    (b) The contracting officer shall insert the clause at 452.247-72, 
Packing for Domestic Shipment, in contracts when item(s) will be 
delivered for immediate use to a destination in the continental United 
States; when the material specification or purchase description does not 
provide preservation, packaging, packing, and/or marking requirements; 
and/or when the requiring activity has not cited a specific 
specification for packaging.
    (c) The contracting officer shall insert the clause at 452.247-73, 
Packing for Overseas Shipment, in contracts when item(s) will be 
delivered to an overseas destination for immediate use, the material 
specification does not specify packing levels, and the required activity 
has not specified such requirements.

                           PART 448 [RESERVED]

[[Page 125]]



PART 449_TERMINATION OF CONTRACTS--Table of Contents



                    Subpart 449.1_General Principles

Sec.
449.106  Fraud or other criminal conduct.
449.111  Review of proposed settlements.

                  Subpart 449.4_Termination for Default

449.402  Termination of fixed-price contracts for default.
449.402-3  Procedure for default.

               Subpart 449.5_Contract Termination Clauses

449.501  General.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



                    Subpart 449.1_General Principles



449.106  Fraud or other criminal conduct.

    (a) If the contracting officer suspects fraud or other criminal 
conduct a written report documenting the facts shall be submitted by the 
head of the contracting activity (HCA) to the Office of Inspector 
General. Copies of documents or other information connected with the 
suspected fraud or criminal conduct shall be provided with the report. 
Concurrently, a copy of the report shall also be submitted to the Senior 
Procurement Executive.
    (b) Depending on the findings of the Office of Inspector General, 
the HCA may initiate suspension or debarment action as prescribed in FAR 
part 9.4 and part 409.4.



449.111  Review of proposed settlements.

    Proposed settlement agreements shall be reviewed and approved in 
accordance with contracting activity procedures.



                  Subpart 449.4_Termination for Default



449.402  Termination of fixed-price contracts for default.



449.402-3  Procedure for default.

    In addition to the requirements of FAR 49.402-3(g), the notice of 
termination shall contain instructions regarding the disposition of any 
Government property in the possession of the contractor (see FAR 45.508-
1) and, in the case of construction contracts, such materials, 
appliances, and structures as may be on the site of the construction 
work. The notice shall also contain a statement concerning the liability 
of the contractor or its surety for any liquidated damages (see FAR 
49.402-7).



               Subpart 449.5_Contract Termination Clauses



449.501  General.

    Use of special purpose termination clauses pursuant to the authority 
of FAR 49.501 shall be approved in advance by the HCA.



PART 450_EXTRAORDINARY CONTRACTUAL ACTIONS--Table of Contents



Sec.
450.001  Definitions.

Subpart 450.1 [Reserved]

  Subpart 450.2_Delegation of and Limitations on Exercise of Authority

450.201  Delegation of authority.

                   Subpart 450.3_Contract Adjustments

450.303  Contract adjustment.
450.303-1  Contractor requests.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



450.001  Definitions.

    Approving authority, as used in this part, means the Assistant 
Secretary for Administration.
    Secretarial level, as used in this part means the Assistant 
Secretary for Administration.

[[Page 126]]

Subpart 450.1 [Reserved]



  Subpart 450.2_Delegation of and Limitations on Exercise of Authority



450.201  Delegation of authority.

    The Assistant Secretary for Administration is authorized to approve 
all actions under FAR part 50 except indemnification actions listed in 
FAR 50.201(d) which must be approved by the Secretary, without power of 
delegation.



                   Subpart 450.3_Contract Adjustments



450.303  Contract adjustment.



450.303-1  Contractor requests.

    Contractor requests shall be submitted to the contracting officer.

                           PART 451 [RESERVED]

[[Page 127]]



                     SUBCHAPTER H_CLAUSES AND FORMS





PART 452_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents



              Subpart 452.2_Texts of Provisions and Clauses

Sec.
452.204-70  Inquiries.
452.211-70  Brand Name or Equal.
452.211-71  Equal Products Offered.
452.211-72  Statement of Work/Specifications.
452.211-73  Attachments to Statement of Work/Specifications.
452.211-74  Period of Performance.
452.211-75  Effective Period of the Contract.
452.214-70  Award by Lot.
452.215-71  Instructions for the Preparation of Technical and Business 
          Proposals.
452.215-72  Amendments to Proposals.
452.215-73  Post Award Conference.
452.216-70  Award Fee.
452.216-71  Base Fee and Award Fee Proposal.
452.216-72  Evaluation Quantities--Indefinite-Delivery Contract.
452.216-73  Minimum and Maximum Contract Amounts.
452.216-74  Ceiling Price.
452.216-75  Letter Contract.
452.219-70  Size Standard and NAICS Code Information.
452.224-70  Confidentiality of Information.
452.226-70--452.226-72  [Reserved]
452.228-70  Alternative Forms of Security.
452.228-71  Insurance Coverage.
452.232-70  Reimbursement for Bond Premiums--Fixed-Price Construction 
          Contracts.
452.236-70  Additive or Deductive Items.
452.236-71  Prohibition Against the Use of Lead-Based Paint.
452.236-72  Use of Premises.
452.236-73  Archaeological or Historic Sites.
452.236-74  Control of Erosion, Sedimentation, and Pollution.
452.236-75  Maximum Workweek--Construction Schedule.
452.236-76  Samples and Certificates.
452.236-77  Emergency Response.
452.236-78  Fire Suppression and Liability.
452.236-79  Opted Timber Sale Road Requirements.
452.236-80  Firms Ineligible for Award--Construction.
452.237-70  Loss, Damage, Destruction or Repair.
452.237-71  Pre-Bid/Pre-Proposal Conference.
452.237-73  Equipment Inspection Visit.
452.237-74  Key Personnel.
452.237-75  Restrictions Against Disclosure.
452.237-76  Progress Reporting.
452.237-78  Contracts with Consulting Firms for Services.
452.246-70  Inspection and Acceptance.
452.247-70  Delivery Location.
452.247-71  Marking Deliverables.
452.247-72  Packing for Domestic Shipment.
452.247-73  Packing for Overseas Shipment.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 121(c)

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



              Subpart 452.2_Texts of Provisions and Clauses



452.204-70  Inquiries.

    As prescribed in 404.7001, insert the following provision:

                          Inquiries (FEB 1988)

    Inquiries and all correspondence concerning this solicitation should 
be submitted in writing to the Contracting Officer. Offerors should 
contact only the Contracting Officer issuing the solicitation about any 
aspect of this requirement prior to contract award.

                           (End of provision)



452.211-70  Brand Name or Equal.

    As prescribed in 411.171, insert the following provision:

                     Brand Name or Equal (NOV 1996)

    (As used in this provision, the term ``brand name'' includes 
identification of products by make and model.)
    (a) If items called for by this solicitation have been identified by 
a ``brand name or equal'' description, such identification is intended 
to be descriptive, but not restrictive, and is to indicate the quality 
and characteristics of products that will be satisfactory. Offers of 
``equal'' products (including products of the brand name manufacturer 
other than the one described by brand name) will be considered for award 
if such products are clearly identified in the offer (see clause 
452.211-71) and are determined by the Contracting Officer to meet fully 
the salient characteristics requirements listed in the solicitation.
    (b) Unless the offeror clearly indicates in its offer that it is 
offering an ``equal'' product, the offeror shall be considered as 
offering the brand name product(s) referenced in the solicitation.
    (c)(1) If the offeror proposes to furnish an ``equal'' product or 
products, the brand

[[Page 128]]

name(s), if any, and any other required information about the product(s) 
to be furnished shall be inserted in the space provided in the 
solicitation. The evaluation of offers and the determination as to the 
equality of the product(s) offered shall be the responsibility of the 
Government and will be based on information furnished by the offeror or 
identified in its offer as well as other information reasonably 
available to the contracting activity. Caution to offerors: The 
contracting activity is not responsible for locating or securing any 
information which is not identified in the offer and is not reasonably 
available to the contracting activity. Accordingly, to assure that 
sufficient information is available, the offeror must furnish as a part 
of its offer all descriptive material (such as cuts, illustrations, 
drawings, or other information) necessary for the contracting activity 
to (i) determine whether the product offered meets the salient 
characteristics requirement of the solicitation, and (ii) establish 
exactly what the offeror proposes to furnish and what the Government 
would be binding itself to purchase by making an award. The information 
furnished may include specific reference to information previously 
furnished or to information otherwise available to the contracting 
activity.
    (2) If an offeror proposes to modify a product so as to make it 
conform to the requirements of the solicitation, the offer shall include 
(i) a clear description of such proposed modifications and (ii) clearly 
marked descriptive material to show the proposed modifications.

                           (End of provision)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, 
as amended at 70 FR 50, Jan. 3, 2005]



452.211-71  Equal Products Offered.

    As prescribed in 411.171, insert the following or substantially the 
same clause in solicitations seeking offers on a ``brand name or equal'' 
basis to allow offerors the opportunity to clearly identify the 
``equal'' item being offered, and to illustrate how that item meets the 
salient characteristics requirements of the Government.

                    Equal Products Offered (NOV 1996)

    (a) Offerors proposing to furnish an ``equal'' product, in 
accordance with the ``Brand Name or Equal'' provision of this 
solicitation, shall provide the following information for each offered 
``equal'' product:
Contract Line Item Number (if any):_____________________________________
Brand Name or Equal Product identified by the Government in this 
solicitation:___________________________________________________________
Offered Product Name:___________________________________________________
Catalog Description or part number:_____________________________________
________________________________________________________________________
Manufacturer's Name:____________________________________________________
Manufacturer's Address:_________________________________________________
________________________________________________________________________
________________________________________________________________________
    (b) Offerors are responsible for submitting all additional 
information on the above product necessary for the Contracting Officer 
to determine whether the product offered meets the ``brand name or 
equal'' product's salient characteristics listed in the solicitation.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



452.211-72  Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

               Statement of Work/Specifications (FEB 1988)

    The Contractor shall furnish the necessary personnel, material, 
equipment, services and facilities (except as otherwise specified), to 
perform the Statement of Work/Specifications referenced in Section J.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



452.211-73  Attachments to Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

       Attachments to Statement of Work/Specifications (FEB 1988)

    The attachments to the Statement of Work/Specifications listed in 
Section J are hereby made part of this solicitation and any resultant 
contract.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



452.211-74  Period of Performance.

    As prescribed in 411.404(a), insert the following clause:

                    Period of Performance (FEB 1988)

    The period of performance of this contract is from ___ through ___.*

[[Page 129]]

                             (End of clause)

    * Contracting Officer shall insert the appropriate dates.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



452.211-75  Effective Period of the Contract.

    As prescribed in 411.404(b), insert the following clause:

               Effective Period of the Contract (FEB 1988)

    The effective period of this contract is from ___ through ___.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate dates.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



452.214-70  Award by Lot.

    As prescribed in 414.201-6, insert a provision substantially as 
follows:

                         Award by Lot (NOV 1996)

    Subject to the Section L provision FAR 52.214-10, ``Contract Award--
Sealed Bidding,'' award will generally be made to a single bidder on 
each entire lot. However, the Government reserves the right to award by 
item within any lot when the contracting officer determines that it is 
advantageous to the Government.

                           (End of provision)



452.215-71  Instructions for the Preparation of Technical and Business
Proposals.

    As prescribed in 415.209(a), insert a provision substantially as 
follows:

  Instructions for the Preparation of Technical and Business Proposals 
                               (SEP 1999)

    (a) General Instructions. Proposals submitted in response to this 
solicitation shall be furnished in the following format with the numbers 
of copies as specified below.
    (1) The proposal must include a technical proposal and business 
proposal. Each of the parts shall be separate and complete so that 
evaluation of one may be accomplished independently from evaluation of 
the other. The technical proposal must not contain reference to cost; 
however, resource information (such as data concerning labor hours and 
categories, materials, subcontracts, etc.) must be contained in the 
technical proposal so that the contractor's understanding of the 
statement of work may be evaluated.
    (2) Offerors may, at their discretion, submit alternate proposals or 
proposals which deviate from the requirement; provided, that an offeror 
also submit a proposal for performance of the work as specified in the 
statement of work. Any ``alternate'' proposal may be considered if 
overall performance would be improved or not compromised, and if it is 
in the best interest of the Government. Alternate proposals, or 
deviations from any requirement of this RFP, must be clearly identified.
    (3) The Government will evaluate proposals in accordance with the 
evaluation criteria set forth in Section M of this RFP.
    (4) Offerors shall submit their proposal(s) in the following format 
and the quantities specified:
    (a) ___* copies of the completed, signed offer (Sections A through K 
of the solicitation package)
    (b) ___* copies of the technical proposal
    (c) ___* copies of the business/cost proposal
    (b) Technical Proposal Instructions. The technical proposal will be 
used to make an evaluation and arrive at a determination as to whether 
the proposal will meet the requirements of the Government. Therefore, 
the technical proposal must present sufficient information to reflect a 
thorough understanding of the requirements and a detailed, description 
of the techniques, procedures and program for achieving the objectives 
of the specifications/statement of work. Proposals which merely 
paraphrase the requirements of the Government's specifications/ 
statement of work, or use such phrases as ``will comply'' or ``standard 
techniques will be employed'' will be considered unacceptable and will 
not be considered further. As a minimum, the proposal must clearly 
provide the following:
    (Contracting Officer shall identify in this section the minimum 
information required to evaluate each technical evaluation factor listed 
in Section M.)
    (c) Business Proposal Instructions.
    (1) Cost Proposal.
    In addition to any other requirements for cost/pricing information 
required in clause FAR 52.215-20, Requirements for Cost or Pricing Data 
or Information Other Than Cost or Pricing Data (OCT 1997), the following 
is required:
    (Contracting Officer shall identify additional information required 
if appropriate.)
    (2) Business Proposal.
    (a) Furnish financial statements for the last two years, including 
an interim statement for the current year, unless previously provided to 
the office issuing the RFP, in which case a statement as to when and 
where this information was provided may be furnished instead.

[[Page 130]]

    (b) Specify the financial capacity, working capital and other 
resources available to perform the contract without assistance from any 
outside source.
    (c) Provide the name, location, and intercompany pricing policy for 
other divisions, subsidiaries, parent company, or affiliated companies 
that will perform work or furnish materials under this contract.

                           (End of provision)

    *Contracting officer shall insert number of copies required.

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999; 
70 FR 50, Jan. 3, 2005]



452.215-72  Amendments to Proposals.

    As prescribed in 415.209(b), insert the following provision:

                   Amendments to Proposals (FEB 1988)

    Any changes to a proposal made by the offeror after its initial 
submittal shall be accomplished by replacement pages. Changes from the 
original page shall be indicated on the outside margin by vertical lines 
adjacent to the change. The offeror shall include the date of the 
amendment on the lower right corner of the changed pages.

                           (End of provision)

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]



452.215-73  Post Award Conference.

    As prescribed in 415.570, insert a clause substantially as follows:

                    Post Award Conference (NOV 1996)

    A post award conference with the successful offeror is required. It 
will be scheduled within ___* days after the date of contract award. The 
conference will be held at: ___*.

                             (End of clause)

    * Contracting officer to insert number of days and location.

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]



452.216-70  Award Fee.

    As prescribed in 416.405, insert a clause substantially as follows:

                          Award Fee (FEB 1988)

    The amount of award fee the Contractor earns, if any, is based on a 
subjective evaluation by the Government of the quality of the 
Contractor's performance in accordance with the award fee plan. The 
Government will determine the amount of award fee every ___* months 
beginning with ___*. The Fee Determination Official (FDO) will 
unilaterally determine the amount of award fee. The FDO's determination 
will be in writing to the Contractor and is not subject to the 
``Disputes'' clause. The Government may unilaterally change the award 
fee plan at any time and will provide such changes in writing to the 
Contractor prior to the beginning of the applicable evaluation period. 
The Contractor may submit a voucher for the earned award fee. Available 
award fee not earned during one period does not carry over to subsequent 
periods.

                             (End of clause)

    * Contracting Officer shall insert appropriate number of months.
    ** Contracting Officer shall insert appropriate date.



452.216-71  Base Fee and Award Fee Proposal.

    As prescribed in 416.470, insert the following provision:

                 Base Fee and Award Proposal (FEB 1988)

    For the purpose of this solicitation, offerors shall propose a base 
fee of ___* percent of the total estimated cost proposed. The award fee 
shall not exceed ___* percent of the total estimated cost.

                           (End of provision)

    * Contracting Officer shall insert appropriate percentages.



452.216-72  Evaluation Quantities--Indefinite-Delivery Contract.

    As prescribed in 416.506(a), insert a provision substantially as 
follows:

     Evaluation Quantities--Indefinite-Delivery Contract (FEB 1988)

    To evaluate offers for award purposes, the Government will apply the 
offeror's proposed fixed-prices/rates to the estimated quantities 
included in the solicitation, and will add other direct costs if 
applicable.

                           (End of provision)



452.216-73  Minimum and Maximum Contract Amounts.

    As prescribed in 416.506(b), insert the following clause:

[[Page 131]]

             Minimum and Maximum Contract Amounts (FEB 1988)

    During the period specified in FAR clause 52.216-18, ORDERING, the 
Government shall place orders totaling a minimum of ___*, but not in 
excess of ___*.

                             (End of clause)

    * Contracting Officer shall insert appropriate quantity or dollar 
amounts.



452.216-74  Ceiling Price.

    As prescribed in 416.670, insert the following clause:

                        Ceiling Price (FEB 1988)

    The ceiling price of this contract is $___*. The Contractor shall 
not make expenditures or incur obligations in the performance of this 
contract which exceed the ceiling price specified herein, except at the 
Contractor's own risk.

                             (End of clause)

    *Contracting Officer shall insert appropriate dollar amount.



452.216-75  Letter Contract.

    As prescribed in 416.603-4, insert the following clause:

                       Letter Contract (FEB 1988)

    This contract replaces letter contract No. ___* dated ___* and all 
amendments thereto.

                             (End of clause)

    * Contracting Officer shall insert number and date.



452.219-70  Size Standard and NAICS Code Information.

    As prescribed in 419.508, insert the following provision:

           Size Standard and NAICS Code Information (SEP 2001)

    The North American Industrial Classification System Code(s) and 
business size standard(s) describing the products and/or services to be 
acquired under this solicitation are listed below:

Contract line item(s): ___* NAICS Code ___* Size Standard ___*

                           (End of provision)

    * Contracting Officer shall insert the appropriate data for each 
contract line item in the solicitation. The data entry line may be 
duplicated as required to describe all of the contract line items or 
sub-items.

[61 FR 53646, Oct. 15, 1996, as amended at 66 FR 49317, Sept. 27, 2001]



452.224-70  Confidentiality of Information.

    As prescribed in 424.104, insert a clause substantially as follows:

                Confidentiality of Information (FEB 1988)

    (a) Confidential information, as used in this clause, means--
    (1) information or data of a personal nature, proprietary about an 
individual, or (2) information or data submitted by or pertaining to an 
organization.
    (b) In addition to the types of confidential information described 
in (a)(1) and (2) above, information which might require special 
consideration with regard to the timing of its disclosure may derive 
from studies or research, during which public disclosure of primarily 
invalidated findings could create an erroneous conclusion which might 
threaten public health or safety if acted upon.
    (c) The Contracting Officer and the Contractor may, by mutual 
consent, identify elsewhere in this contract specific information and/or 
categories of information which the Government will furnish to the 
Contractor or that the Contractor is expected to generate which is 
confidential. Similarly, the Contracting Officer and the Contractor may, 
by mutual consent, identify such confidential information from time to 
time during the performance of the contract. Failure to agree will be 
settled pursuant to the ``Disputes'' clause.
    (d) If it is established that information to be utilized under this 
contract is subject to the Privacy Act, the Contractor will follow the 
rules and procedures of disclosure set forth in the Privacy Act of 1974, 
5 U.S.C. 552a, and implementing regulations and policies, with respect 
to systems of records determined to be subject to the Privacy Act.
    (e) Confidential information, as defined in (a)(1) and (2) above, 
shall not be disclosed without the prior written consent of the 
individual, institution or organization.
    (f) Written advance notice of at least 45 days will be provided to 
the Contracting Officer of the Contractor's intent to release findings 
of studies or research, which have the possibility of adverse effects on 
the public or the Federal agency, as described in (b) above. If the 
Contracting Officer does not pose any objections in writing within the 
45 day period, the Contractor may proceed with disclosure. Disagreements 
not resolved by the Contractor and Contracting Officer will be settled 
pursuant to the ``Disputes'' clause.

[[Page 132]]

    (g) Whenever the Contractor is uncertain with regard to the proper 
handling of material under the contract, or if the material in question 
is subject to the Privacy Act or is confidential information subject to 
the provisions of this clause, the Contractor shall obtain a written 
determination from the Contracting Officer prior to any release, 
disclosure, dissemination, or publication.
    (h) The provisions of paragraph (e) of this clause shall not apply 
when the information is subject to conflicting or overlapping provisions 
in other Federal, State or local laws.

                             (End of clause)



452.226-70--452.226-72  [Reserved]



452.228-70  Alternative Forms of Security.

    As prescribed in 428.204-2, insert the following provision:

                Alternative Forms of Security (NOV 1996)

    If furnished as security, money orders, drafts, cashiers checks, or 
certified checks shall be drawn payable to: ___*.

                           (End of provision)

    * Contracting Officer shall insert the name of the USDA contracting 
activity.



452.228-71  Insurance Coverage.

    As prescribed in 428.310, insert the following clause:

                      Insurance Coverage (NOV 1996)

    Pursuant to FAR clause 52.228-5, Insurance-Work on a Government 
Installation, the Contractor will be required to present evidence to 
show, as a minimum, the amounts of insurance coverage indicated below:
    (a) Workers Compensation and Employer's Liability. The Contractor is 
required to comply with applicable Federal and State workers' 
compensation and occupational disease statutes. If occupational diseases 
are not compensable under those statutes, they shall be covered under 
the employer's liability section of the insurance policy, except when 
contract operations are so commingled with a Contractor's commercial 
operations that it would not be practical to require this coverage. 
Employer's liability coverage of at least $100,000 shall be required, 
except in States with exclusive or monopolistic funds that do not permit 
worker's compensation to be written by private carriers.
    (b) General Liability. The Contractor shall have bodily injury 
liability insurance coverage written on a comprehensive form of policy 
of at least $500,000 per occurrence.
    (c) Automobile Liability. The Contractor shall have automobile 
liability insurance written on a comprehensive form of policy. The 
policy shall provide for bodily injury and property damage liability 
covering the operation of all automobiles used in connection with 
performing the contract. Policies covering automobiles operated in the 
United States shall provide coverage of at least $200,000 per person and 
$500,000 per occurrence for bodily injury and $20,000 per occurrence for 
property damage or loss.
    (d) Aircraft Public and Passenger Liability. When aircraft are used 
in connection with performing the contract, the Contractor shall have 
aircraft public and passenger liability insurance. Coverage shall be at 
least $200,000 per person and $500,000 per occurrence for bodily injury, 
other than passenger injury. Coverage for passenger injury shall be at 
least $200,000 multiplied by the number of seats or passengers, 
whichever is greater.

                             (End of clause)

    Alternate I (NOV 1996). As prescribed in 428.310, substitute the 
following paragraph (b), when additionally the contractor must have 
property damage liability coverage:

    (b) General Liability. (1) The Contractor shall have bodily injury 
liability coverage written on a comprehensive form of policy of at least 
$500,000 per occurrence.
    (2) The Contractor shall have property damage liability insurance 
shall be required in the amount of ___* per occurrence.
    * Contracting Officer shall insert amount required.



452.232-70  Reimbursement for Bond Premiums--Fixed-Price Construction
Contracts.

    As prescribed in 432.111, insert the following clause:

Reimbursement for Bond Premiums--Fixed-Price Construction Contracts (NOV 
                                  1996)

    The Contract Price includes the total amount for premiums that the 
Contractor attributes to the furnishing of performance and payment bonds 
required by the contract. Reimbursement for bond premiums under the 
clause at FAR 52.232-5, Payments Under Fixed-Price Construction, shall 
not cover any amount therefor not included in the contract price.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, 
as amended at 70 FR 50, Jan. 3, 2005]

[[Page 133]]



452.236-70  Additive or Deductive Items.

    As prescribed in 436.205, insert the following provision:

                 Additive or Deductive Items (FEB 1988)

    The low bidder for purposes of award shall be the conforming 
responsible bidder offering the low aggregate amount for the first or 
base bid item, plus or minus (in the order of priority listed in the 
schedule) those additive or deductive bid items providing the most 
features of the work within the funds determined by the government to be 
available before bids are opened. If addition of another bid item in the 
listed order of priority would make the award exceed such funds for all 
bidders, it shall be skipped and the next subsequent additive bid item 
in a lower amount shall be added if award therein can be made within 
such funds. For example, when the amount available is $100,000 and a 
bidder's base bid and four successive additives are $85,000, $10,000, 
$8,000, $6,000, and $4,000, the aggregate amount of the bid for purposes 
of award would be $99,000 for the base bid plus the first and fourth 
additives, the second and third additives being skipped because of each 
of them would cause the aggregate bid to exceed $100,000. In any case 
all bids shall be evaluated on the basis of the same additive or 
deductive bid items, determined as above provided. The listed order of 
priority need be followed only for determining the low bidder. After 
determination of the low bidder as stated, award in the best interests 
of the Government may be made on the selected first or base bid item and 
any combination of additive or deductive items for which funds are 
determined to be available at the time of the award, provided that award 
on such combination of bid items does not exceed the amount offered by 
any other conforming responsible bidder for the same combination of bid 
items.

                             (End of clause)



452.236-71  Prohibition Against the Use of Lead-Based Paint.

    As prescribed in 436.571, insert the following clause:

       Prohibition Against the Use of Lead-Based Paint (NOV 1996)

    Neither the Contractor nor any subcontractor performing under this 
contract shall use paints containing more then 0.06 of 1 percent lead by 
weight (calculated as lead metal) in the total nonvolatile content of 
the paint, or the equivalent measure of lead in the dried film of paint 
already applied, or both.

                             (End of clause)



452.236-72  Use of Premises.

    As prescribed in 436.572, insert the following clause:

                       Use of Premises (NOV 1996)

    (a) Before any camp, quarry, borrow pit, storage, detour, or bypass 
site, other than shown on the drawings, is opened or operated on USDA 
land or lands administered by the USDA, the Contractor shall obtain 
written permission from the Contracting Officer. A camp is interpreted 
to include a campsite or trailer parking area of any employee working on 
the project for the Contractor.
    (b) Unless excepted elsewhere in the contract, the Contractor shall 
(i) provide and maintain sanitation facilities for the work force at the 
site and (ii) dispose of solid waste in accordance with applicable 
Federal, State and local regulations.

                             (End of clause)



452.236-73  Archaeological or Historic Sites.

    As prescribed in 436.573, insert the following clause:

               Archaeological or Historic Sites (FEB 1988)

    If a previously unidentified archaeological or historic site(s) is 
encountered, the Contractor shall discontinue work in the general area 
of the site(s) and notify the Contracting Officer immediately.

                             (End of clause)



452.236-74  Control of Erosion, Sedimentation, and Pollution.

    As prescribed in 436.574, insert the following clause:

       Control of Erosion, Sedimentation, and Pollution (NOV 1996)

    (a) Operations shall be scheduled and conducted to minimize erosion 
of soils and to prevent silting and muddying of streams, rivers, 
irrigation systems, and impoundments (lakes, reservoirs, etc.).
    (b) Pollutants such as fuels, lubricants, bitumens, raw sewage, and 
other harmful materials shall not be discharged on the ground; into or 
nearby rivers, streams, or impoundments; or into natural or man-made 
channels. Wash water or waste from concrete or aggregate operations 
shall not be allowed to enter live streams prior to treatment by 
filtration, settling, or other means sufficient to reduce the sediment 
content to not more than that of the stream into which it is discharged.

[[Page 134]]

    (c) Mechanized equipment shall not be operated in flowing streams 
without written approval by the Contracting Officer.

                             (End of clause)



452.236-75  Maximum Workweek--Construction Schedule.

    As prescribed in 436.575, insert the following clause:

           Maximum Workweek--Construction Schedule (NOV 1996)

    Within __ calendar days after receipt of a written request from the 
Contracting Officer, the Contractor must submit the following in writing 
for approval:
    (a) A schedule as required by FAR clause 52.236-15, Schedules for 
Construction Contracts, and
    (b) The hours (including the daily starting and stopping times) and 
days of the week the Contractor proposes to carry out the work.
    The maximum workweek that will be approved is __*.

                             (End of clause)

    * Contracting Officer shall insert appropriate number of days and 
hours and/or days.



452.236-76  Samples and Certificates.

    As prescribed in 436.576, insert the following clause:

                   Samples and Certificates (FEB 1988)

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

                             (End of clause)



452.236-77  Emergency Response.

    As prescribed in 436.577, the following clause may be used in Forest 
Service construction contracts:

                      Emergency Response (NOV 1996)

    (a) Contractor's Responsibility for Fire Fighting. (1) The 
Contractor, under the provisions of FAR clause 52.236-9, Protection of 
Existing Vegetation, Structures, Equipment, Utilities, and Improvements, 
shall immediately extinguish all fires on the work site other than those 
fires in use as a part of the work.
    (2) The Contractor may be held liable for all damages and for all 
costs incurred by the Government for labor, subsistence, equipment, 
supplies, and transportation deemed necessary to control or suppress a 
fire set or caused by the Contractor or the Contractor's agents or 
employees.
    (b) Contractor's Responsibility for Notification in Case of Fire. 
The Contractor shall immediately notify the Government of any fires 
sighted on or in the vicinity of the work site.
    (c) Contractor's Responsibility for Responding to Emergencies. When 
directed by the Contracting Officer, the Contractor shall allow the 
Government to temporarily use employees and equipment from the work site 
for emergency work (anticipated to be restricted to fire fighting). An 
equitable adjustment for the temporary use of employees and equipment 
will be made under the Changes clause, FAR 52.243-4.

                             (End of clause)



452.236-78  Fire Suppression and Liability.

    As prescribed in section 436.578, the following clause shall be 
inserted in Intergrated Resource Service Contracts (IRSC) awarded for 
the Forest Service.

                  Fire Suppression and Liability Clause

    (a) Contractor's Responsibility for Fire Fighting. The Contractor, 
under the provisions of FAR clause at 52.236-9, Protection of Existing 
Vegetation, Structures, Equipment, Utilities, and Improvements, shall 
immediately extinguish all fires on the work site other than those fires 
in use as a part of the work. The Contractor may be held liable for all 
damages and for all costs incurred by the Government for labor, 
subsistence, equipment, supplies, and transportation deemed necessary to 
control or suppress a fire set or caused by the Contractor or the 
Contractor's agents or employees subject to the following fire 
classifications listed in subsection (b).
    (b) Fire Suppression Costs. The Contractor's obligations for cost of 
fire suppression vary according to three classifications of fires as 
follows:
    (1) Operations Fire. An ``operations fire'' is a fire caused by the 
Contractor's operations other than a negligent fire. The Contractor 
agrees to reimburse Forest Service for such cost for each operations 
fire, subject to a

[[Page 135]]

maximum dollar amount of [Contracting Officer insert amount]. The cost 
of the Contractor's actions, supplies, and equipment on any such fire, 
or otherwise provided at the request of Forest Service, shall be 
credited toward such maximum. If the Contractor's actual cost exceeds 
contractor's obligation stated above, Forest Service shall reimburse the 
contractor for the excess.
    (2) Negligent Fire. A ``negligent fire'' is a fire caused by the 
negligence or fault of the Contractor's operations including, but not 
limited to, one caused by smoking by persons engaged in the Contractor's 
operations during the course of their employment, or during rest or 
lunch periods; or if the Contractor's failure to comply with 
requirements under this contract results in a fire starting, or permits 
a fire to spread. Damages and the cost of suppressing negligent fires 
shall be borne by the Contractor.
    (3) Other Fires on Contract Area. Forest Service shall pay the 
Contractor, at firefighting rates common in the area or at prior agreed 
rates, for equipment or personnel furnished by the Contractor at the 
request of Forest Service, on any fire on contract area other than an 
operations fire or a negligent fire.
    (c) Contractor's Responsibility for Notification in Case of Fire. 
The Contractor shall immediately notify the Government of any fires 
sighted on or in the vicinity of the work site.
    (d) Contractor's Responsibility for Responding to Emergencies. When 
directed by the Contracting Officer, the Contractor shall temporarily 
redirect employees and equipment from the work site for emergency work 
(anticipated to be restricted to firefighting). This is considered to be 
within the general scope of the contract. An equitable adjustment for 
any such redirection of employees and equipment will be made under the 
FAR clause at 52.243-4, Changes.
    (e) Performance by the Contractor. Where the Contractor's employees, 
agents, contractors, subcontractors, or their employees or agents 
perform the Contractor's operations in connection with fire 
responsibilities, the Contractor's obligations shall be the same as if 
performance was by Contractor.
    (f) State Law. The Contractor shall not be relieved by the terms of 
this contract of any liability to the United States for fire suppression 
costs recovered in an action based on State law, except for such costs 
resulting from operations fires. Amounts due to the Contractor for 
firefighting expenditures on operations fires shall not be withheld 
pending settlement of any such claim or action based on State law.

                             (End of Clause)

[81 FR 7480, Feb. 12, 2016]



452.236-79  Opted Timber Sale Road Requirements.

    As prescribed in 436.579, insert the following clause:

             Opted Timber Sale Road Requirements (NOV 1996)

    This contract is for the construction of timber sale road(s) which a 
timber purchaser has opted to have the Government construct. The 
Government is obligated to make these roads available to the timber 
purchaser by ___*. Failure to make these roads available by this date 
could result in Government liability for delay to the timber purchaser 
for which the Contractor might become liable should the Contractor fail 
to complete this contract within the specified and allowed contract 
time.

                             (End of clause)

    * Contracting Officer shall insert appropriate date.



452.236-80  Firms Ineligible for Award--Construction.

    As prescribed in 436.670, insert the following clause:

           Firms Ineligible for Award--Construction (NOV 1996)

    The firm(s) and its subsidiaries or affiliates signatory to this 
contract shall be ineligible for award of any construction contract 
resulting from the design work performed under this contract.

                             (End of clause)



452.237-70  Loss, Damage, Destruction or Repair.

    (a) As prescribed in 437.110(a), insert a clause substantially as 
follows:

             Loss, Damage, Destruction or Repair (FEB 1988)

    (a) For equipment furnished under this contract without operator, 
the Government will assume liability for any loss, damage or destruction 
of such equipment, not to exceed a total of $___* except that no 
reimbursement will be made for loss, damage or destruction due to (1) 
ordinary wear or tear, (2) mechanical failure, or (3) the fault or 
negligence of the Contractor or the Contractor's agents or employees.
    (b) For equipment furnished under this contract with operator, the 
Government shall not be liable for any loss, damage or destruction of 
such equipment, except for loss, damage or destruction resulting from 
the negligent or wrongful act(s) of Government

[[Page 136]]

employee(s) while acting within the scope of their employment.
    (c) All repairs to equipment furnished under this contract shall be 
made by the Contractor and reimbursement, if any, shall be determined in 
accordance with (a) or (b) above. Repairs shall be made promptly and 
equipment returned to use within ___** hours. In lieu of repairing 
equipment, the Contractor may furnish similar replacement equipment 
within the time specified. The Contractor may authorize the Government 
to make repairs upon the request of the Contracting Officer. In such 
case, the Contractor will be billed for labor and parts costs.

                             (End of clause)

    * Contracting Officer shall insert amount available in current funds 
to cover potential liability.
    ** Contracting Officer shall insert appropriate number of hours.



452.237-71  Pre-Bid/Pre-Proposal Conference.

    As prescribed in 437.110(b), insert a provision substantially as 
follows:

               Pre-Bid/Pre-Proposal Conference (FEB 1988)

    (a) The Government is planning a pre-bid/pre-proposal conference, 
during which potential offerors may obtain a better understanding of the 
work required.
    (b) Offerors are encouraged to submit all questions in writing at 
least five (5) days prior to the conference. Questions will be 
considered at any time prior to or during the conference; however, 
offerors will be asked to confirm verbal questions in writing. 
Subsequent to the conference, an amendment to the solicitation 
containing an abstract of the questions and answers, and a list of 
attendees, will be disseminated.
    (c) In order to facilitate conference preparations, it is requested 
that the person named on the Standard Form 33 of this solicitation be 
contacted and advised of the number of persons who will attend.
    (d) The Government assumes no responsibility for any expense 
incurred by an offeror prior to contract award.
    (e) Offerors are cautioned that, notwithstanding any remarks or 
clarifications given at the conference, all terms and conditions of the 
solicitation remain unchanged unless they are changed by amendment to 
the solicitation. If the answers to conference questions, or any 
solicitation amendment, create ambiguities, it is the responsibility of 
the offeror to seek clarification prior to submitting an offer.
    (f) The conference will be held:

Date:___________________________________________________________________
Time:___________________________________________________________________
Location:_______________________________________________________________

                             (End of clause)



452.237-73  Equipment Inspection Visit.

    As prescribed in 437.110(c), insert the following provision:

                  Equipment Inspection Visit (FEB 1988)

    Offerors are urged and expected to inspect the equipment on which 
maintenance or repairs are to be performed and to satisfy themselves 
regarding all conditions that may affect the cost of contract 
performance, to the extent that the information is reasonably 
obtainable. In no event shall failure to inspect the equipment 
constitute grounds for a claim after contract award.
    Offerors are invited to inspect the ___* at ___* by telephoning ___* 
on ___* for an appointment.

                             (End of clause)

    * Contracting Officer shall insert appropriate data.



452.237-74  Key Personnel.

    As prescribed in 437.110(d), insert a clause substantially as 
follows:

                        Key Personnel (FEB 1988)

    (a) The Contractor shall assign to this contract the following key 
personnel: _____
    (b) During the first ninety (90) days of performance, the Contractor 
shall make no substitutions of key personnel unless the substitution is 
necessitated by illness, death, or termination of employment. The 
Contractor shall notify the Contracting Officer within 15 calendar days 
after the occurrence of any of these events and provide the information 
required by paragraph (c) below. After the initial 90-day period, the 
Contractor shall submit the information required by paragraph (c) to the 
Contracting Officer at least 15 days prior to making any permanent 
substitutions.
    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete resumes 
for the proposed substitutes, and any additional information requested 
by the Contracting Officer. Proposed substitutes should have comparable 
qualifications to those of the persons being replaced. The Contracting 
Officer will notify the Contractor within 15 calendar days after receipt 
of all required information of the decision on substitutions. The 
contract will be modified to reflect any approved changes of key 
personnel.

[[Page 137]]

                             (End of clause)



452.237-75  Restrictions Against Disclosure.

    As prescribed in 437.110(e), insert a clause substantially as 
follows:

               Restrictions Against Disclosure (FEB 1988)

    (a) The Contractor agrees, in the performance of this contract, to 
keep all information contained in source documents or other media 
furnished by the Government in the strictest confidence. The Contractor 
also agrees not to publish or otherwise divulge such information in 
whole or in part in any manner or form, or to authorize or permit others 
to do so, taking such reasonable measures as are necessary to restrict 
access to such information while in the Contractor's possession, to 
those employees needing such information to perform the work provided 
herein, i.e., on a ``need to know'' basis. The Contractor agrees to 
immediately notify in writing, the Contracting Officer, named herein, in 
the event that the Contractor determines or has reason to suspect a 
breach of this requirement.
    (b) The Contractor agrees not to disclose any information concerning 
the work under this contract to any persons or individual unless prior 
written approval is obtained from the Contracting Officer. The 
Contractor agrees to insert the substance of this clause in any 
consultant agreement or subcontract hereunder.

                             (End of clause)



452.237-76  Progress Reporting.

    As prescribed in 437.270(a), insert a clause substantially as 
follows:

                      Progress Reporting (FEB 1988)

    The Contractor shall submit a progress report ___*, covering work 
accomplished during that period of the contract performance. The 
progress report shall be brief and factual and shall be prepared in 
accordance with the following format:
    (a) A cover page containing:
    (1) Contract number and title;
    (2) Type of report, sequence number of report, and period of 
performance being reported;
    (3) Contractor's name and address;
    (4) Author(s); and
    (5) Date of report.
    (b) Section I--An introduction covering the purpose and scope of the 
contract effort. This shall be limited to one paragraph in all but the 
first and final month's narrative.
    (c) Section II--A description of overall progress plus a separate 
description of each task or other logical segment of work on which 
effort was expended during the report period. The description shall 
include pertinent data and/or graphs in sufficient detail to explain any 
significant results achieved.
    (d) Section III--A description of current technical or substantive 
performance, and any problem(s) which may impede performance along with 
proposed corrective action.
    (e) Section IV--A planning schedule shall be included with the first 
progress report for all assigned tasks required under the contract, 
along with the estimated starting and completion dates for each task. 
The planning schedule shall be updated and submitted with each 
subsequent technical progress report, including an explanation of any 
difference between actual progress and planned progress, why the 
differences have occurred, and--if behind planned progress--what 
corrective steps are planned.
    (f) Section V--If applicable, financial information shall be 
submitted for each major task or line item cost.
    Data shall include:
    (1) The total estimated cost budgeted (fee excluded).
    (2) The estimated cost expended during the current reporting period.
    (3) Identification of direct labor hours of prime contractor and 
subcontractor(s) and/or consultant(s), if applicable.
    (4) Total project to-date expenditures.
    (5) Total remaining funds.

                             (End of clause)

    * Contracting Officer shall insert frequency of reporting 
requirement.



452.237-78  Contracts with Consulting Firms for Services.

    As prescribed in 437.270(b), insert a clause substantially as 
follows:

         Contracts with Consulting Firms for Services (FEB 1988)

    Offerors are specifically cautioned that any firm(s) receiving a 
contract award to provide the services described herein will be 
prohibited from competing for or receiving a follow-on contract to 
perform ___.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate information.



452.246-70  Inspection and Acceptance.

    As prescribed in 446.370, insert the following clause:

                  Inspection and Acceptance (FEB 1988)

    (a) The Contracting Officer or the Contracting Officer's duly 
authorized representative will inspect and accept the supplies

[[Page 138]]

and/or services to be provided under this contract.
    (b) Inspection and acceptance will be performed at: ___.*

                             (End of clause)

    * Contracting Officer shall insert appropriate identifying data.

    Alternate I (FEB 1988). As prescribed in 446.370, substitute a 
paragraph (b) and add a paragraph (c):

    (b) Inspection will be performed at: ___.*
    (c) Acceptance will be performed at: ___.*

                             (End of clause)



452.247-70  Delivery Location.

    As prescribed in 447.302, insert a clause substantially as follows:

                      Delivery Location (FEB 1988)

    Shipment of deliverable items, other than reports, shall be to: 
___.*

                             (End of clause)

    * Contracting Officer shall insert appropriate identifying data.



452.247-71  Marking Deliverables.

    As prescribed in 447.305-10(a), insert a clause substantially as 
follows:

                     Marking Deliverables (FEB 1988)

    (a) The contract number shall be placed on or adjacent to all 
exterior mailing or shipping labels of deliverable items called for by 
the contract.
    (b) Mark deliverables, except reports, for: ___.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate information.



452.247-72  Packing for Domestic Shipment.

    As prescribed in 447.305-10(b), insert the following clause:

                Packing for Domestic Shipment (FEB 1988)

    Material shall be packed for shipment in such a manner that will 
insure acceptance by common carriers and safe delivery at destination. 
Containers and closures shall comply with the Interstate Commerce 
Commission regulations, Uniform Freight Classification Rules, or 
regulations of other carriers as applicable to the mode of 
transportation.

                             (End of clause)



452.247-73  Packing for Overseas Shipment.

    As prescribed in 447.305-10(c), insert the following clause:

                Packing for Overseas Shipment (FEB 1988)

    Supplies shall be packed for overseas shipment in accordance with 
the best commercial export practice suitable for water movement to 
arrive undamaged at ultimate destination.

                             (End of clause)



PART 453_FORMS--Table of Contents



Sec.
453.000  Scope of part.

                          Subpart 453.1_General

453.103  Exceptions.
453.108  Recommendations concerning forms.

                   Subpart 453.2_Prescription of Forms

453.200  Scope of subpart.
453.213  Simplified Acquisition and other simplified purchase procedures 
          (AD-838).
453.270  Request for contract action (AD-700).

                  Subpart 453.3_Illustrations of Forms

453.300  Scope of subpart.
453.303  Agency forms.
453.303-700  Procurement Request (AD-700).
453.303-838  Purchase Order (AD-838).

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



453.000  Scope of part.

    This part:
    (a) Prescribes USDA (AD) forms for use in acquisition,
    (b) Contains requirements and information generally applicable to AD 
forms and forms prescribed by FAR part 53, and
    (c) Illustrates AD forms.



                          Subpart 453.1_General



453.103  Exceptions.

    (a) The contracting officer shall submit a request for exceptions to 
forms prescribed in FAR part 53 through the head of the contracting 
activity (HCA)

[[Page 139]]

to the Senior Procurement Executive (SPE) for referral to the GSA.
    (b) Requests for exceptions to AD forms prescribed in part 453 shall 
be handled as individual or class deviations, as appropriate (see 
subpart 401.4).



453.108  Recommendations concerning forms.

    Contracting officers shall submit recommendations for new forms or 
to revise, eliminate, or consolidate forms prescribed by FAR part 53 and 
part 453 through the HCA to the SPE.



                   Subpart 453.2_Prescription of Forms



453.200  Scope of subpart.

    This subpart prescribes USDA (AD) forms for use in acquisition. 
Consistent with the approach used in FAR subpart 53.2, this subpart is 
arranged by subject matter, in the same order as, and keyed to, the 
parts of the AGAR in which the form usage requirements are addressed.



453.213  Simplified Acquisition and other simplified purchase procedures (AD-838).

    Form AD-838, Purchase Order, is prescribed for use as a Simplified 
Acquisition Procedure/delivery order/task order document in lieu of OF 
347 and OF 348, except that use of the OF 347 and OF 348 is authorized 
when utilizing the USDA Integrated Acquisition System (See 413.307).

[70 FR 50, Jan. 3, 2005]



453.270  Request for contract action (AD-700).

    Form AD-700, Procurement Request, may be used as a contract 
requisition document by contracting activities in USDA.



                  Subpart 453.3_Illustrations of Forms



453.300  Scope of subpart.

    This subpart contains illustrations of USDA (AD) forms for use in 
acquisitions. Forms are not illustrated in the Federal Register or Code 
of Federal Regulations. Individual copies may be obtained from any USDA 
contracting activity or the office of the SPE.



453.303  Agency forms.



453.303-700  Procurement Request (AD-700).



453.303-838  Purchase Order (AD-838).

[[Page 140]]



                  SUBCHAPTER I_FOOD ASSISTANCE PROGRAMS





PART 470_COMMODITY ACQUISITIONS--Table of Contents



Sec.
470.000  Scope of part.
470.101  Definitions.
470.102  Policy.
470.103  United States origin of agricultural products.
470.200  [Reserved]
470.201  Acquisition of commodities and freight shipment for Foreign 
          Agricultural Service programs.
470.202  Acquisition of commodities for United States Agency for 
          International Development (USAID) programs.
470.203  Cargo preference.

    Authority: 5 U.S.C. 301; 7 U.S.C. 1691 through 1726b; 1731 through 
1736g-3; 1736o; 1736o-1; 40 U.S.C. 121(c); 46 U.S.C. 53305, 55314 and 
55316.

    Source: 74 FR 13079, Mar. 26, 2009, unless otherwise noted.



470.000  Scope of part.

    This part sets forth the policies, procedures and requirements 
governing the procurement of agricultural commodities by the Department 
of Agriculture for use:
    (a) Under any domestic feeding and assistance program administered 
by the Food and Nutrition Service; and
    (b) Under Title II of the Food for Peace Act (7 U.S.C. 1721 et 
seq.); the Food for Progress Act of 1985; the McGovern-Dole 
International Food for Education and Child Nutrition Program; and any 
other international food assistance program.



470.101  Definitions.

    The following definitions are applicable to this part:
    Commingled product means grains, oilseeds, rice, pulses, other 
similar commodities and the products of such commodities, when such 
commodity or product is normally stored on a commingled basis in such a 
manner that the commodity or product produced in the United States 
cannot be readily distinguished from a commodity or product not produced 
in the United States.
    Department means the Department of Agriculture.
    Food and Nutrition Service means such agency located within the 
Department of Agriculture.
    Foreign Agriculture Service means such agency located within the 
Department of Agriculture.
    Free alongside ship (f.a.s.) ( * * named port of shipment) means a 
term of sale which means the seller fulfills its obligation to deliver 
when the goods have been placed alongside the vessel on the quay or in 
lighters at the named port of shipment. The buyer bears all costs and 
risks of loss of or damage to the goods from that moment.
    Free carrier (FCA) ( * * named place) means a term of sale which 
means the seller fulfills its obligation when the seller has handed over 
the goods, cleared for export, into the charge of the carrier named by 
the buyer at the named place or point. If no precise point is indicated 
by the buyer, the seller may choose, within the place or range 
stipulated, where the carrier should take the goods into their charge.
    Grantee organization means an organization which will receive 
commodities from the United States Agency for International Development 
under Title II of the Food for Peace Act (7 U.S.C. 1721 et seq.) or from 
the Foreign Agricultural Service under the Food for Progress Act of 
1985; the McGovern-Dole International Food for Education and Child 
Nutrition Program; and any other international food assistance program.
    Ingredient means spices, vitamins, micronutrients, desiccants, and 
preservatives when added to an agricultural commodity product.
    Last contract lay day means the last day specified in an ocean 
freight contract by which the carriage of goods must start for contract 
performance.
    Lowest landed cost means, as authorized by 46 U.S.C. 55314(c), with 
respect to an agricultural product acquired under this part the lowest 
aggregate cost for the acquisition of such product and the shipment of 
such product to a foreign destination.
    Multi-port voyage charter means the charter of an ocean carrier in 
which

[[Page 141]]

the carrier will stop at two or more ports to discharge cargo.



470.102  Policy.

    (a) Policy. It is the policy of the Department to follow the 
policies and procedures set forth in the Federal Acquisition Regulation 
(FAR) as supplemented by the Agriculture Acquisition Regulation, 
including this part, in the procurement of agricultural commodities and 
products of agricultural commodities that are used in domestic feeding 
and international feeding and development programs.
    (b) Electronic submission. To the maximum extent possible, the use 
of electronic submission of solicitation-related documents shall be used 
with respect to the acquisition of agricultural commodities and related 
freight; however, to the extent that a solicitation allows for the 
submission of written information in addition to information in an 
electronic format and there is a discrepancy in such submissions, the 
information submitted in a written format shall prevail unless the 
electronic submission states that a specific existing written term is 
superseded by the electronic submission.
    (c) Freight. With respect to the acquisition of freight for the 
shipment of agricultural commodities and products of agricultural 
commodities, the provisions of the FAR, including part 47, shall be 
utilized and various types of services to be obtained may include multi-
trip voyage charters.



470.103  United States origin of agricultural products.

    (a) Products of United States origin. As provided by 7 U.S.C. 
1732(2) and 1736o-1(a) commodities and the products of agricultural 
commodities acquired for use in international feeding and development 
programs shall be products of United States origin. A product shall not 
be considered to be a product of the United States if it contains any 
ingredient that is not produced in the United States if that ingredient 
is:
    (1) Produced in the United States; and
    (2) Commercially available in the United States at fair and 
reasonable prices from domestic sources.
    (b) Use by the Food and Nutrition Service. Commodities and the 
products of agricultural commodities acquired for use by the Food and 
Nutrition Service shall be a product of the United States, except as may 
otherwise be required by law, and shall be considered to be such a 
product if it is grown, processed, and otherwise prepared for sale or 
distribution exclusively in the United States except with respect to 
ingredients. Ingredients from non-domestic sources will be allowed to be 
utilized as a United States product if such ingredients are not 
otherwise:
    (1) Produced in the United States; and
    (2) Commercially available in the United States at fair and 
reasonable prices from domestic sources.
    (c) Commingled product. (1) Except as provided in paragraph (c)(2) 
of this section, a commingled product shall be considered to be a 
product of the United States if the offeror can establish that the 
offeror has in inventory at the time the contract for the commodity or 
product is awarded to the offeror, or obtains during the contract 
performance period specified in the solicitation, or a combination 
thereof, a sufficient quantity of the commodity or product that was 
produced in the United States to fulfill the contract being awarded, and 
all unfulfilled contracts that the offeror entered into to provide such 
commingled product to the United States.
    (2) To the extent the Department has determined a commodity is one 
that is generally commingled, but is also one which can be readily 
stored on an identity preserved basis with respect to its country of 
origin, the Department may require that the commodity procured by the 
Department shall be of 100 percent United States origin.
    (d) Product derived from animals. With respect to the procurement of 
products derived from animals, the solicitation will set forth any 
specific requirement that is applicable to the country in which the 
animal was bred, raised, slaughtered or further processed.

[[Page 142]]



470.200  [Reserved]



470.201  Acquisition of commodities and freight shipment for Foreign
Agricultural Service programs.

    (a) Lowest landed cost and delivery considerations. (1) Except as 
provided in paragraphs (a)(3) and (4) of this section, in contracts for 
the Foreign Agricultural Service for commodities and related freight 
shipment for delivery to foreign destinations, the contracting officer 
shall consider the lowest landed cost of delivering the commodity to the 
intended destination. This lowest landed cost determination will be 
calculated on the basis of rates and service for that portion of the 
commodities being purchased that is determined is necessary and 
practicable to meet 46 U.S.C. 55314(c)(3) and cargo preference 
requirements and on an overall (foreign and U.S. flag) basis for the 
remaining portion of the commodities being procured and the additional 
factors set forth in this section. Accordingly, the solicitations issued 
with respect to a commodity procurement or a related freight procurement 
will specify that in the event an offer submitted by a party is the 
lowest offered price, the contracting officer reserves the right to 
reject such offer if the acceptance of another offer for the commodity 
or related freight, when combined with other offers for commodities or 
related freight, results in a lower landed cost to the Department.
    (2) The Department may contact any port prior to award to determine 
the port's cargo handling capabilities, including the adequacy of the 
port to receive, accumulate, handle, store, and protect the cargo. 
Factors considered in this determination may include, but not be limited 
to, the adequacy of building structures, proper ventilation, freedom 
from insects and rodents, cleanliness, and overall good housekeeping and 
warehousing practices. The Department may consider the use of another 
coastal range or port if a situation exists at a port that may adversely 
affect the ability of the Department to have the commodity delivered in 
a safe and timely manner. Such situations include:
    (i) A port is congested;
    (ii) Port facilities are overloaded;
    (iii) A vessel would not be able to dock and load cargo without 
delay;
    (iv) Labor disputes or lack of labor may prohibit the loading of the 
cargo onboard a vessel in a timely manner; or
    (v) Other similar situation that may adversely affect the ability of 
the Department to have the commodity delivered in a timely manner.
    (3) Use of other than lowest landed cost. In order to ensure that 
commodities are delivered in a timely fashion to foreign destinations 
and without damage, the contracting officer may award an acquisition 
without regard to the lowest land cost process set forth in paragraph 
(a)(1) of this section if:
    (i) The solicitation specifies that the lowest land cost process 
will not be followed in the completion of the contract; or
    (ii) After issuance of the solicitation, it is determined that:
    (A) Internal strife at the foreign destination or urgent 
humanitarian conditions threatens the lives of persons at the foreign 
destination;
    (B) A specific port's cargo handling capabilities (including the 
adequacy of the port to receive, accumulate, handle, store, and protect 
commodities) and other similar factors may adversely affect the delivery 
of such commodities through damage or untimely delivery. Such similar 
factors include, but are not limited to: port congestion; overloaded 
facilities at the port; vessels not being able to dock and load cargo 
without delay due to conditions at the port; labor disputes or lack of 
labor may prohibit the loading of the cargo onboard a vessel in a timely 
manner; and the existence of inadequate or unsanitary warehouse and 
other supporting facilities;
    (C) The total transit time of a carrier, as it relates to a final 
delivery date at the foreign destination may impair the timely delivery 
of the commodity;
    (D) Other similar situations arise that materially affect the 
administration of the program for which the commodity or freight is 
being procured; or
    (E) The contracting officer determines that extenuating 
circumstances preclude awards on the basis of lowest-landed cost, or 
that efficiency and cost-savings justify use of types of ocean

[[Page 143]]

service that would not involve an analysis of freight. However, in all 
such cases, commodities would be transported in compliance with cargo 
preference requirements. Examples of extenuating circumstances are 
events such as internal strife at the foreign destination or urgent 
humanitarian conditions threatening the lives of persons at the foreign 
destination. Other types of services may include, but are not limited 
to, multi-trip voyage charters, indefinite delivery/indefinite quantity 
(IDIQ), delivery cost and freight (C & F), delivery cost insurance and 
freight (CIF), and indexed ocean freight costs.
    (4) If a contracting officer determines that action may be 
appropriate under paragraph (a)(3) of this section, prior to the 
acceptance of any applicable offer, the contracting officer will provide 
to the Head of Contracting Activity Designee a written request to obtain 
commodities and freight in a manner other than on a lowest landed cost 
basis consistent with Title 48 Code of Federal Regulations. This request 
shall include a statement of the reasons for not using lowest landed 
cost basis. The Head of the Contracting Activity Designee, or the 
designee one level above the contracting officer, may either accept or 
reject this request and shall document this determination.
    (b) Multiple offers or delivery points. If more than one offer for 
the sale of commodities is received or more than one delivery point has 
been designated in such offers, in order to achieve a combination of a 
freight rate and commodity award that produces the lowest landed cost 
for the delivery of the commodity to the foreign destination, the 
contracting officer shall evaluate offers submitted on a delivery point 
by delivery point basis; however, consideration shall be given to 
prioritized ocean transport service in determining lowest landed cost.
    (c) Freight shipping and rates. (1) In determining the lowest-landed 
cost, the Department shall use the freight rates offered in response to 
solicitations issued by the Department or, if applicable, the grantee 
organization.
    (2) Freight rates offered must be submitted as specified in the 
solicitation issued by the Department or, if applicable, the grantee 
organization. Any such solicitation issued by a grantee organization 
must contain the following elements:
    (i) If directed by the Department, include a closing time for the 
receipt of written freight offers and state that late written freight 
offers will not be considered;
    (ii) Provide that freight offers are required to have a canceling 
date no later than the last contract lay day specified in the 
solicitation;
    (iii) Provide the same deadline for receipt of written freight 
offers from both U.S. flag vessel and non-U.S. flag vessels; and
    (iv) Be received and opened prior to any related offer for 
acquisition of commodities to be shipped.
    (3) The Department may require organizations that will receive 
commodities from the Department to submit information relating to the 
capacity of a U.S. port, or, if applicable, a terminal, prior to the 
acquisition of such commodities or freight.
    (d) Freight rate notification. If the Department is not the party 
procuring freight with respect to a shipment of an agricultural 
commodity for delivery to a foreign destination, the organization that 
will receive commodities from the Department, or its shipping agent, 
shall be notified by the Department of the vessel freight rate used in 
determining the commodity contract award and the organization will be 
responsible for finalizing the charter or booking contract with the 
vessel representing the freight rate.



470.202  Acquisition of commodities for United States Agency for
International Development (USAID) programs.

    (a) Lowest landed cost and delivery considerations. (1) Except as 
provided in paragraphs (a)(3) and (e)(2) of this section, with respect 
to the acquisition of agricultural commodities for delivery to foreign 
destinations and related freight to transport such commodities under 
Title II of Public Law 480, contracts will be entered into in a manner 
that will result in the lowest landed cost of such commodity delivery to 
the

[[Page 144]]

intended destination. This lowest landed cost determination shall be 
calculated on the basis of rates and service for that portion of the 
commodities being purchased that is determined is necessary and 
practicable to meet 46 U.S.C. 55314(c)(3) and cargo preference 
requirements and on an overall (foreign and U.S. flag) basis for the 
remaining portion of the commodities being procured and the additional 
factors set forth in this section. Accordingly, the solicitations issued 
with respect to a commodity procurement or a freight procurement will 
specify that in the event an offer submitted by a party is the lowest 
offered price, the contracting officer reserves the right to reject such 
offer if the acceptance of another offer for the commodity or freight, 
when combined with other offers for commodities or freight, results in a 
lower landed cost to USAID.
    (2) The Department may contact any port prior to award to determine 
the port's cargo handling capabilities, including the adequacy of the 
port to receive, accumulate, handle, store, and protect the cargo. 
Factors which will be considered in this determination will include, but 
not be limited to, the adequacy of building structures, proper 
ventilation, freedom from insects and rodents, cleanliness, and overall 
good housekeeping and warehousing practices. The Department may consider 
the use of another coastal range or port if a situation exists at a port 
that may adversely affect the ability of the Department to have the 
commodity delivered in a safe and/or timely manner. Such situations 
include:
    (i) A port is congested;
    (ii) Port facilities are overloaded;
    (iii) A vessel would not be able to dock and load cargo without 
delay;
    (iv) Labor disputes or lack of labor may prohibit the loading of the 
cargo onboard a vessel in a timely manner; or
    (v) Other similar situation that may adversely affect the ability of 
the Department to have the commodity delivered in a timely manner.
    (3) Use of other than lowest landed cost. In order to ensure that 
commodities are delivered in a timely fashion to foreign destinations 
and without damage, the Department may complete an acquisition without 
regard to the lowest land cost process set forth in paragraph (a)(1) of 
this section, if:
    (i) The solicitation specifies that the lowest land cost process 
will not be followed in the completion of the contract; or
    (ii) After issuance of the solicitation, it is determined that:
    (A) Internal strife at the foreign destination or urgent 
humanitarian conditions threatens the lives of persons at the foreign 
destination;
    (B) A specific port's cargo handling capabilities (including the 
adequacy of the port to receive, accumulate, handle, store, and protect 
commodities) and other similar factors will adversely affect the 
delivery of such commodities without damage or in a timely manner. Such 
similar factors include, but are not limited to: port congestion; 
overloaded facilities at the port; vessels would not be able to dock and 
load cargo without delay; labor disputes or lack of labor may prohibit 
the loading of the cargo onboard a vessel in a timely manner; and the 
existence of inadequate or unsanitary warehouse and other supporting 
facilities;
    (C) The total transit time of a carrier, as it relates to a final 
delivery date at the foreign destination may impair the ability of the 
Department to achieve timely delivery of the commodity; or
    (D) Other similar situations arise that materially affect the 
administration of the program for which the commodity or freight is 
being procured.
    (4) If the contracting officer determines that action may be 
appropriate under paragraph (a)(3) of this section, prior to the 
acceptance of any applicable offer, the contracting officer shall 
provide to the head of contracting activity designee and to USAID, a 
written request to obtain commodities and freight in a manner other than 
on a lowest landed cost basis. This request shall include a statement of 
the reasons for not using lowest landed cost basis. The head of 
contracting authority designee, or one level above the contracting 
officer, with the concurrence of USAID, shall, on an expedited basis, 
either accept or reject this request and shall document this 
determination in writing and provide a copy to USAID.

[[Page 145]]

    (b) Freight shipping and rates. (1) In determining lowest-landed 
cost as specified in paragraph (a) of this section, the Department shall 
use vessel rates offered in response to solicitations issued by USAID or 
grantee organizations receiving commodities under 7 U.S.C. 1731 et seq.
    (2) USAID may require, or direct a grantee organization to require, 
an ocean carrier to submit offers electronically through a Web-based 
system maintained by the Department. If electronic submissions are 
required, the Department may, at its discretion, accept corrections to 
such submissions that are submitted in a written form other than by use 
of such Web-based system.
    (c) Delivery date. The contracting officer shall consider total 
transit time, as it relates to a final delivery date, in order to 
satisfy Public Law 480 Title II program requirements.
    (d) Delivery points. (1) Commodities offered for delivery free 
alongside ship Great Lakes port range or intermodal bridge-point Great 
Lakes port range that represent the overall (foreign and U.S. flag) 
lowest landed cost will be awarded on a lowest landed cost basis. 
Tonnage allocated on this basis will not be reevaluated on a lowest 
landed cost U.S.-flag basis unless the contracting officer determines 
that 25 percent of the total annual tonnage of bagged, processed, or 
fortified commodities furnished under 7 U.S.C. 1731 et seq. has been, or 
will be, transported from the Great Lakes port range during that fiscal 
year.
    (2) The contracting officer shall consider commodity offers as 
offers for delivery ``intermodal bridge-point Great Lakes port range'' 
only if:
    (i) The offer specifies delivery at a marine cargo-handling facility 
that is capable of loading ocean going vessels at a Great Lakes port, as 
well as loading ocean going conveyances such as barges and container 
vans, and
    (ii) The commodities will be moved from one transportation 
conveyance to another at such a facility.
    (e) Multiple awards or delivery points. (1) If more than one offer 
for the sale of commodities is received or more than one delivery point 
has been designated in such offers, in order to achieve a combination of 
a freight rate and commodity award that produces the lowest landed cost 
for the delivery of the commodity to the foreign destination, the 
contracting officer shall evaluate offers submitted on a delivery point 
by delivery point basis; however, consideration shall be given to 
prioritized ocean transport service in determining lowest landed cost.
    (2) The contracting officer may determine that extenuating 
circumstances preclude awards on the basis of lowest landed cost. 
However, in all such cases, commodities may be transported in compliance 
with cargo preference requirements as determined by USAID.
    (3) The contracting officer shall notify USAID or, if applicable, 
the grantee organization, that its shipping agent will be notified of 
the vessel freight rate used in determining the commodity contract 
award. The grantee organization or USAID will be responsible for 
finalizing the charter or booking contract with the vessel representing 
the freight rate so used.



470.203  Cargo preference.

    An agency having responsibility under this subpart shall administer 
its programs, with respect to this subpart, in accordance with 
regulations prescribed by the Secretary of Transportation.

                        PARTS 471	499 [RESERVED]

[[Page 147]]



               CHAPTER 5--GENERAL SERVICES ADMINISTRATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
500

[Reserved]

501             General Services Administration Acquisition 
                    Regulation System.......................         149
502

[Reserved]

503             Improper business practices and personal 
                    conflicts of interest...................         151
504             Administrative matters......................         153
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
505

[Reserved]

509             Contractor qualifications...................         156
511             Describing agency needs.....................         159
512             Acquisition of commercial items.............         162
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
513

[Reserved]

514             Sealed bidding..............................         164
515             Contracting by negotiation..................         169
516             Types of contracts..........................         174
517             Special contracting methods.................         175
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
519             Small business programs.....................         177
522             Application of labor laws to Government 
                    acquisitions............................         183
523             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         185
525             Foreign acquisition.........................         185
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
527             Patents, data, and copyrights...............         186
528             Bonds and insurance.........................         186

[[Page 148]]

529             Taxes.......................................         186
532             Contract financing..........................         187
533             Protests, disputes, and appeals.............         189
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
536             Construction and architect-engineer 
                    contracts...............................         191
537             Service contracting.........................         194
538             Federal supply schedule contracting.........         195
539             Acquisition of information technology.......         199
                    SUBCHAPTER G--CONTRACT MANAGEMENT
541             Acquisition of utility services.............         201
542             Contract administration and audit services..         201
543             Contract modifications......................         201
546             Quality assurance...........................         201
547

[Reserved]

549             Termination of contracts....................         202
                     SUBCHAPTER H--CLAUSES AND FORMS
552             Solicitation provisions and contract clauses         203
553             Forms.......................................         266
               SUBCHAPTER I--SPECIAL CONTRACTING PROGRAMS
570             Acquiring leasehold interests in real 
                    property................................         267
571-599

[Reserved]

[[Page 149]]



                          SUBCHAPTER A_GENERAL



                           PART 500 [RESERVED]



PART 501_GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM
--Table of Contents



               Subpart 501.1_Purpose, Authority, Issuance

Sec.
501.101  Purpose.
501.103  Authority.
501.104  Applicability.
501.105  Issuance.
501.105-1  Publication and code arrangement.
501.105-2  Arrangement of regulations.
501.105-3  Copies.
501.106  OMB approval under the Paperwork Reduction Act.

             Subpart 501.4_Deviations From the FAR and GSAR

501.402  Policy.
501.403  Individual deviations.
501.404  Class deviations.
501.404-70  Contract action.
501.404-71  Deviations to the nonregulatory GSAM.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37203, July 9, 1999, unless otherwise noted.



               Subpart 501.1_Purpose, Authority, Issuance



501.101  Purpose.

    (a) The General Services Acquisition Regulation (GSAR) contains 
agency acquisition policies and practices, contract clauses, 
solicitation provisions, and forms that control the relationship between 
GSA and contractors and prospective contractors.
    (b) GSAR address rules directly to you, the contracting officer, 
unless otherwise indicated.



501.103  Authority.

    GSA's Senior Procurement Executive issues the GSAR under the 
authority of the Federal Property and Administrative Services Act of 
1949, as amended.



501.104  Applicability.

    (a) General. The GSAR applies to contracts for suppliers or 
services, including construction.
    (b) Acquisition of leasehold interests in real property. Part 570 
establishes rules for the acquisition of leasehold interests in real 
property. Other provisions of 48 CFR chapter 5 (GSAR) do not apply to 
leases of real property unless specifically cross-reference in part 570.
    (c) Relationship to state. Some GSAR rules implement and interpret 
laws and other authorities affecting procurement. A GSAR rule 
specifically directed by statute has the force and effect of law.
    (d) GSAR/FAR Relationship. The GSAR may deviate from the Federal 
Acquisition Regulation (FAR) if authorized. If the GSAR does not 
implement the FAR, the FAR alone governs.



501.105  Issuance.



501.105-1  Publication and code arrangement.

    The GSAR is published in the following sources:
    (a) Daily issue of the Federal Register.
    (b) Annual Code of Federal Regulations (CFR), as Chapter 5 of Title 
48.
    (c) GSA Acquisition Manual distributed within GSA.
    (d) GSA Home Page at http://www/gas.gov. Click on either 
``Government Agencies'' or on ``Business and Industry,'' the click on 
``Acquisition.''



501.105-2  Arrangement of regulations.

    (a) The GSAR numbers and captions policies and procedures to 
correspond to how they appear in the FAR, e.g., 1.104 in the FAR is 
501.104 in the GSAR.
    (b) GSAR rules not implementing the FAR have numbers beginning with 
70, e.g., part 570, subsection 515.209-70.
    (c) The GSAR may have gaps in its numbering scheme because a FAR 
rule may not require GSAR implementation.

[[Page 150]]



501.105-3  Copies.

    The GSAR in CFR form may be purchased from: Superintendent of 
Documents, Government Printing Office, Washington, DC 20402.



501.106  OMB approval under the Paperwork Reduction Act.

------------------------------------------------------------------------
               GSAR Reference                      OMB Control No.
------------------------------------------------------------------------
509.105-1(a)...............................  3090-0007
511.140-70.................................  3090-0203
511.204(c).................................  3090-0246
514.201-1(a)...............................  3090-0163
515.408....................................  3090-0235
516.203-4(a)(1)............................  3090-0243
516.506....................................  3090-0248
519.70.....................................  3090-0286
519.708(b).................................  3090-0252
522.406-6..................................  1215-0149
523.370....................................  3090-0205
532.111(c).................................  3090-0080
532.905-70.................................  9000-0102
532.905-71.................................  3090-0080
537.110(a).................................  3090-0197
537.110(b).................................  3090-0006
538.273(a)(1)..............................  3090-0250
538.273(a)(3)..............................  3090-0262
538.273(b)(1)..............................  3090-0121
542.1107...................................  3090-0027
546.307-70.................................  3090-0027
546.302-71.................................  3090-0027
552.211-77.................................  3090-0246
552.215-73.................................  3090-0163
552.216-70.................................  3090-0243
552.216-72.................................  3090-0248
552.216-73.................................  3090-0248
552.216-75.................................  3090-0306
552.219-72.................................  3090-0252
552.219-75.................................  3090-0286
552.219-76.................................  3090-0286
552.223-72.................................  3090-0205
552.232-72.................................  3090-0080
552.237-71.................................  3090-0006
552.238-70.................................  3090-0250
552.238-72.................................  3090-0262
552.238-74.................................  3090-0121, 3090-0306
552.238-81.................................  3090-0302
552.239-71.................................  3090-0294
552.242-70.................................  3090-0027
552.246-70.................................  3090-0027
552.246-71.................................  3090-0027
GSA-72-A...................................  3090-0121
GSA-527....................................  3090-0007
GSA-618-D..................................  1215-0149
GSA-1142...................................  3090-0080
GSA-1364...................................  3090-0086
GSA-1678...................................  3090-0027
GSA-2419...................................  9000-0102
570.802(c).................................  3090-0086
570.802(d).................................  3090-0086
------------------------------------------------------------------------


[64 FR 37203, July 9, 1999, as amended at 65 FR 41378, July 5, 2000; 68 
FR 41288, July 11, 2003; 74 FR 21273, May 7, 2009; 74 FR 41063, Aug. 14, 
2009; 74 FR 47738, Sept. 17, 2009; 74 FR 66253, Dec. 15, 2009; 76 FR 
30845, May 27, 2011; 77 FR 750, Jan. 6, 2012; 79 FR 14184, Mar. 13, 
2014; 79 FR 62884, Oct. 21, 2014; 79 FR 63057, Oct. 22, 2014; 81 FR 
36425, June 6, 2016; 81 FR 41136, June 23, 2016]

    Editorial Note: At 74 FR 66253, Dec. 15, 2009, the table in 
Sec. 501.106 was amended by removing the GSAR reference number 
``511.104-70'' and its corresponding OMB Control Number ``3090-0203''; 
however, the amendment could not be done because this reference number 
is not found in the table.



             Subpart 501.4_Deviations From the FAR and GSAR



501.402  Policy.

    Uniformity is a goal of GSA's Acquisition Regulation System. Despite 
this desire for uniformity, a contracting activity may take any of the 
following actions:
    (a) Develop and test new procedures and techniques.
    (b) Adopt alternate procedures in the public interest for unique 
programmatic or managerial requirements
    (c) Deviate from a regulatory provision implementing a statutory 
requirement provided the deviation does not violate the underlying 
statute. Deviations must not be used to defeat the FAR and GSAR approval 
requirements.



501.403  Individual deviations.

    (a) An individual deviation affects only one contract action.
    (1) The Head of the Contracting Activity (HCA) must approve an 
individual deviation to the FAR. The authority to grant an individual 
deviation may not be re-delegated. A copy of the deviation must be 
provided to GSA's Senior Procurement Executive (SPE).
    (2) An individual deviation to the GSAR must be approved by the HCA. 
The authority to grant an individual deviation may be re-delegated to 
the Contracting Director.
    (b) If GSA delegates authority to another agency and requires 
compliance with the GSAR as a condition of the delegation, the 
Contracting Director in the agency receiving the delegation may approve 
individual deviations

[[Page 151]]

from the GSAR unless the agency head receiving the delegation designates 
another official.
    (c) Send a copy of each deviation to GSA's SPE (MV).

[64 FR 37203, July 9, 1999, as amended at 70 FR 15779, Mar. 29, 2005; 81 
FR 1532, Jan. 13, 2016]



501.404  Class deviations.

    (a) A class deviation affects more than one contract action. A 
deviation for any solicitation that will result in multiple awards or 
any solicitation under the multiple award Federal Supply Schedule 
program is considered to be a class deviation. Each award under such a 
solicitation is considered an individual contract action.
    (1) A class deviation to the FAR must be forwarded by the cognizant 
HCA to GSA's SPE for approval. Prior to approving a class deviation to 
the FAR, the SPE will consult with the Chairman of the Civilian Agency 
Acquisition Council (CAAC) in accordance with FAR 1.404(a)(1).
    (2) A class deviation to the GSAR must be forwarded by the cognizant 
HCA to GSA's SPE for approval.
    (3) When an HCA knows that a proposed class deviation will be 
required on a permanent basis, the HCA should propose or recommend an 
appropriate FAR and/or GSAR revision.
    (b) If GSA delegates authority to another agency and requires 
compliance with the GSAR as a condition of the delegation, the HCA in 
the agency receiving the delegation may approve class deviations from 
the GSAR unless the agency head receiving the delegation designates 
another official.
    (c) Send a copy of each deviation to GSA's SPE (MV).
    (d) A request for class deviations must be supported by statements 
that fully describe the need for and the nature of the deviation.
    (e) Class deviations from the GSAR:
    (1) Expire in 12 months if not extended.
    (2) May be rescinded earlier by GSA's SPE or by officials designated 
under paragraph (a) of this section without prejudice to any action 
taken previously.

[64 FR 37203, July 9, 1999, as amended at 70 FR 15780, Mar. 29, 2005; 81 
FR 1532, Jan. 13, 2016]



501.404-70  Contract action.

    Contract action. A contract action, for the purpose of determining 
whether an individual or class deviation is appropriate, has the same 
meaning as that used for reporting contract actions to Federal 
Procurement Data System--Next Generation (FPDS-NG). A contract action 
includes, but is not limited to, any of the following:
    (a) Initial letter contract.
    (b) Definitive contract superseding letter contract.
    (c) New definitive contract.
    (d) Purchase order/BPA calls using simplified acquisition 
procedures.
    (e) Orders under single award indefinite delivery contracts.
    (f) Orders under BOA.
    (g) Order/modification under Federal schedule contract.
    (h) Modification.
    (i) Termination for Default.
    (j) Termination for Convenience.
    (k) Order under multiple award contract.
    (l) Initial load of Federal schedule contract.

[70 FR 15780, Mar. 29, 2005]



501.404-71  Deviations to the nonregulatory GSAM.

    Handle individual and class deviations to the nonregulatory 
(unshaded) part of the GSAM as stated in 501.403 and 501.404.

[70 FR 15780, Mar. 29, 2005]

                           PART 502 [RESERVED]



PART 503_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST--Table of Contents



                        Subpart 503.1_Safeguards

Sec.
503.104  Procurement integrity.

       Subpart 503.2_Contractor Gratuities to Government Personnel

503.204  Treatment of violations.

[[Page 152]]

Subpart 503.4--Contingent Fees [Reserved]

             Subpart 503.5_Other Improper Business Practices

503.570  Advertising.
503.570-1  Policy.
503.570-2  Contract clause.

             Subpart 503.7_Voiding and Rescinding Contracts

503.703  Authority.

      Subpart 503.10_Contractor Code of Business Ethics and Conduct

503.1004  Contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37204, July 9, 1999, unless otherwise noted.



                        Subpart 503.1_Safeguards



503.104  Procurement integrity.



       Subpart 503.2_Contractor Gratuities to Government Personnel



503.204  Treatment of violations.

    (a) The Senior Procurement Executive, or designee, makes 
determinations under FAR 3.204.
    The Senior Procurement Executive, or designee, takes all the 
following actions:
    (1) Coordinates with legal counsel;
    (2) Initiates proceedings under FAR 3.204(a) by notifying the 
contractor that GSA is considering action against the contractor for a 
violation of the Gratuities clause. Notice is sent by a certified letter 
to the last known address of the party, its counsel, or agent for 
service of process. In the case of a business, notice is sent to any 
partner, principal officer, director, owner or co-owner; and
    (3) Presumes receipt if no return receipt is received within 10 
calendar days after mailing the notice.
    (b) The contractor has 30 calendar days to exercise its rights under 
FAR 3.204(b), unless the Senior Procurement Executive, or designee, 
grants an extension.
    (c) If there is a dispute of fact material to making a 
determination, the Senior Procurement Executive, or designee, may refer 
the matter to an agency fact-finding official, designated by the 
Suspension and Debarment Official, in accordance with GSAR 509.403. 
Referrals for fact-finding are not made in cases arising from a 
conviction or indictment as defined in FAR 9.403. If a referral is made, 
the fact-finding official takes all the following actions:
    (1) Gives the contractor an opportunity to dispute material facts 
relating to the determinations under FAR 3.204(a)(1) and (2);
    (2) Conducts proceedings under rules consistent with FAR 3.204(b);
    (3) Schedules a hearing within 20 calendar days of receipt of the 
referral. The contractor or GSA may request an extension for good cause; 
and
    (4) Delivers to the Senior Procurement Executive, or designee, 
written findings of fact (together with a transcription of the 
proceedings, if made) within 20 calendar days after the hearing record 
closes. The findings must resolve any material disputes of fact by a 
preponderance of the evidence.
    (d) The Senior Procurement Executive, or designee, may reject the 
findings of the fact-finding official only if the findings are clearly 
erroneous or arbitrary and capricious.
    (e) In cases arising from conviction or indictment, or in which 
there are no disputes of material fact, the Senior Procurement 
Executive, or designee, conducts the hearing required by FAR 3.204(b).
    (f) If the Gratuities clause was violated, the contractor may 
present evidence of mitigating factors to the Senior Procurement 
Executive, or designee, in accordance with FAR 3.204(b) either orally or 
in writing, consistent with a schedule the Senior Procurement Executive, 
or designee, establishes. The Senior Procurement Executive, or designee, 
exercises the Government's rights under FAR 3.204(c) only after 
considering mitigating factors.

[64 FR 37204, July 9, 1999, as amended at 74 FR 51511, Oct. 7, 2009]

Subpart 503.4--Contingent Fees [Reserved]

[[Page 153]]



             Subpart 503.5_Other Improper Business Practices



503.570  Advertising.



503.570-1  Policy.

    GSA policy precludes contractors from making references to GSA 
contracts in commercial advertising in a manner that states or implies 
the Government approves or endorses the product or service or considers 
it superior to other products or services. The intent of this policy is 
to prevent the appearance of Government bias toward any product or 
service.

[64 FR 37204, July 9, 1999, as amended at 74 FR 51511, Oct. 7, 2009]



503.570-2  Contract clause.

    Insert the clause at 552.203-71, Restriction on Advertising, in 
solicitations and contracts, including acquisitions of leasehold 
interests in real property, if the contract amount is expected to exceed 
the simplified acquisition threshold.



             Subpart 503.7_Voiding and Rescinding Contracts



503.703  Authority.

    Pursuant to FAR 3.703 and 3.705(b), the authority to void or rescind 
contracts resides with the Senior Procurement Executive.

[74 FR 51512, Oct. 7, 2009]



      Subpart 503.10_Contractor Code of Business Ethics and Conduct



503.1004  Contract clauses.

    (a) GSA has exercised the authority provided at FAR 3.1004(b)(1)(i) 
to establish a lower threshold for inclusion of clause 52.203-14, 
Display of Hotline Poster(s). When the contract or order is funded with 
disaster assistance funds, the threshold is $1,000,000.
    (b) The information required to be inserted in the clause at FAR 
52.203-14, Display of Hotline Poster(s), is as follows:
    (1) Poster: GSA Office of Inspector General ``FRAUDNET HOTLINE''; 
and
    (2) Obtain from: Contracting Officer.

[74 FR 51512, Oct. 7, 2009, as amended at 81 FR 68335, Oct. 4, 2016]



PART 504_ADMINISTRATIVE MATTERS--Table of Contents



    Subpart 504.4_Safeguarding Classified Information Within Industry

Sec.
504.402  General.
504.475  Return of classified information.

            Subpart 504.5_Electronic Commerce in Contracting

504.500  [Reserved]
504.502  Policy.
504.570  [Reserved]

                    Subpart 504.6_Contract Reporting

504.605-70  Federal Procurement Data System--Public access to data.

               Subpart 504.11_System for Award Management

504.1103  Procedures.

  Subpart 504.13_Personal Identity Verification of Contractor Personnel

504.1301  Policy.
504.1303  Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37205, July 9, 1999, unless otherwise noted.



    Subpart 504.4_Safeguarding Classified Information Within Industry



504.402  General.

    (a) This subpart prescribes procedures for safeguarding classified 
information required to be disclosed to contractors in connection with 
the solicitation of offers, and the award, performance, and termination 
of contracts.
    (b) As used in this subpart, the term ``Contractor(s)'' means 
prospective contractors, subcontractors, vendors, and suppliers.

[77 FR 59792, Oct. 1, 2012]

[[Page 154]]



504.475  Return of classified information.

    (a) Contracting officers must recover classified information, unless 
it has been destroyed as provided in Section 7 of Chapter 5 of the 
National Industrial Security Program Operating Manual (NISPOM). 
Information on NISPOM can be found at http://www.fas.org/sgp/library/
nispom.htm.
    (b) Contracting officers must ensure that classified information 
provided by the government is returned immediately after any of the 
following events:
    (1) Bid opening or closing date for receipt of proposals by non-
responding offerors.
    (2) Contract award by unsuccessful offerors.
    (3) Termination or completion of the contract.
    (4) Notification that authorization to release classified 
information has been withdrawn.
    (5) Notification that a facility:
    (i) Does not have adequate means to safeguard classified 
information; or
    (ii) Has had its security clearance revoked or inactivated.
    (6) Whenever otherwise instructed by the authority responsible for 
the security classification.
    (c) The Government agency that provided classified information to a 
GSA contractor is responsible for the return of the information.

[77 FR 59792, Oct. 1, 2012]



            Subpart 504.5_Electronic Commerce in Contracting



504.500  [Reserved]



504.502  Policy.

    Use of electronic signatures is encouraged and can be used to sign 
and route documents in GSA's IT systems to contractually obligate funds. 
The method of authentication used for electronic signatures shall be 
consistent with the level (1-4) determined from the e-authentication 
risk assessment in accordance with OMB M-04-04, E-authentication 
Guidance for Federal Agencies, and the respective technology safeguards 
applicable to that level or risk from National Institute of Standards 
and Technology 800-63, Electronic Authentication Guideline.

[77 FR 59792, Oct. 1, 2012]



504.570  [Reserved]



                    Subpart 504.6_Contract Reporting



504.605-70  Federal Procurement Data System--Public access to data.

    (a) The FPDS database. The General Services Administration awarded a 
contract for creation and operation of the Federal Procurement Data 
System (FPDS) database. That database includes information reported by 
departments and agencies as required by FAR subpart 4.6. One of the 
primary purposes of the FPDS database is to provide information on 
Government procurement to the public.
    (b) Fee for direct hook-up. To the extent that a member of the 
public requests establishment of real-time integration of reporting 
services to run reports from another application, a one-time charge of 
$2,500 for the original integration must be paid by the requestor. This 
one-time charge covers the setup and certification required for an 
integrator to access the FPDS database and for technical assistance to 
help integrators use the web services. The fee will be paid to the FPDS 
contractor and credited to invoices submitted to GSA by the FPDS 
contractor.

[69 FR 77662, Dec. 28, 2004. Redesignated and amended at 77 FR 59792, 
Oct. 1, 2012]



               Subpart 504.11_System for Award Management



504.1103  Procedures.

    In addition to the requirements found in FAR 4.1103, prior to 
awarding a contractual instrument the contracting officer must--
    (a) Verify that the prospective contractor's legal business name, 
Doing-Business-As (DBA) name (if any), physical street address, and Data 
Universal Number System (DUNS) number or DUNS+4 number, as found in the 
System for Award Management (SAM), match the information that will be 
included in the contract, order, or agreement resulting from the 
vendor's quote

[[Page 155]]

or proposal. Correct any mismatches by having the vendor amend the 
information in the SAM and/or the quote or proposal. The SAM information 
can be accessed through the SAM Web site (www.sam.gov) by creating a 
user account.
    (b) Ensure that the contractor's address code exists in Pegasys and 
that it is SAM enabled with the contractor's DUNS or DUNS+4 number. This 
can be done by searching Pegasys records using the contractor's Taxpayer 
Identification Number (TIN). If no code exists, request that a new 
address code be established by the Finance Center for SAM compliance.
    (c) Ensure that the contractor's identifying information is 
correctly placed on the contractual instrument, using special care to 
ensure that the legal name and ``remit to'' name match exactly. (Note: 
Lockbox names or numbers should not be used to replace the contractor's 
name in the remittance block on the contractual instrument.)
    (d) Unless one of the exceptions to registration in SAM applies (see 
FAR 4.1102(a)), the contracting officer must not award a contract to a 
prospective contractor who is not registered in SAM. If no exceptions 
are applicable, and the needs of the requiring activity allows for a 
delay in award, see FAR 4.1103(b)(1).

[77 FR 59792, Oct. 1, 2012, as amended at 81 FR 1532, Jan. 13, 2016]



  Subpart 504.13_Personal Identity Verification of Contractor Personnel

    Source: 77 FR 59793, Oct. 1, 2012, unless otherwise noted.



504.1301  Policy.

    Contracting officers must follow the procedures contained in CIO 
P2181.1--GSA HSPD-12 Personal Identity Verification and Credentialing 
Handbook, which may be obtained from the CIO Office of Enterprise 
Solutions, to ensure compliance with Homeland Security Presidential 
Directive-12 (HSPD-12) ``Policy for a Common Identification Standard for 
Federal Employees and Contractors,'' Office of Management and Budget 
Memorandum M-05-24, and Department of Commerce FIPS PUB 201.



504.1303  Contract clause.

    Insert the clause at 552.204-9, Personal Identity Verification 
Requirements, in solicitations and contracts when it is determined that 
contractor employees will require access to federally controlled 
facilities or information systems to perform contract requirements.

[[Page 156]]



            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING



                           PART 505 [RESERVED]



PART 509_CONTRACTOR QUALIFICATIONS--Table of Contents



            Subpart 509.1_Responsible Prospective Contractors

Sec.
509.105  Procedures.
509.105-1  Obtaining information.
509.105-2  Determinations and documentation.
509.106-2  Requests for preaward surveys.

Subpart 509.2 [Reserved]

            Subpart 509.3_First Article Testing and Approval

509.306  Solicitation requirements.
509.308-1  Testing performed by the contractor.
509.308-2  Testing performed by the Government.

         Subpart 509.4_Debarment, Suspension, and Ineligibility

509.401  Applicability.
509.403  Definitions.
509.405  Effect of listing.
509.405-1  Continuation of current contracts.
509.405-2  Restrictions on subcontracting.
509.406  Debarment.
509.406-1  General.
509.406-3  Procedures.
509.407  Suspension.
509.407-1  General.
509.407-3  Procedures.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37207, July 9, 1999, unless otherwise noted.



            Subpart 509.1_Responsible Prospective Contractors



509.105  Procedures.



509.105-1  Obtaining information.

    (a) From a prospective contractor. FAR 9.105-1 lists a number of 
sources of information that a contracting officer may utilize before 
making a determination of responsibility. The contracting officer may 
request information directly from a prospective contractor using GSA 
Form 527, Contractor's Qualifications and Financial Information, but 
only after exhausting other available sources of information.
    (b) From Government personnel. The contracting officer may solicit 
and consider information from any appropriate activities, e.g., legal 
counsel, quality control, contract management, credit and finance, and 
auditors before determining that an offeror is responsible.

[74 FR 12732, Mar. 25, 2009]



509.105-2  Determinations and documentation.

    (a) The contracting officer shall provide written notification to a 
prospective contractor determined not responsible. Include the basis for 
the determination. Notification provides the prospective contractor with 
the opportunity to correct any problem for future solicitations.
    (b) Due to the potential for de facto debarment, the contracting 
officer shall avoid making repeated determinations of nonresponsibility 
based on the same past performance information.
    (c) To provide for timely consideration of the need to institute 
action to debar a contractor, the contracting officer shall submit a 
copy of each nonresponsibility determination, other than those based on 
capacity or financial capability, to the Suspension and Debarment 
Official in the Office of Acquisition Policy.

[74 FR 12732, Mar. 25, 2009, as amended at 81 FR 1532, Jan. 13, 2016]



509.106-2  Requests for preaward surveys.

    Federal Supply Service (FSS). Contracting activities in FSS may use 
GSA Form 353, Performance Evaluation & Facilities Report, in lieu of SF 
1403 through 1406. Complete Section I in accordance with instructions in 
553.370-353-I.

Subpart 509.2 [Reserved]

[[Page 157]]



            Subpart 509.3_First Article Testing and Approval



509.306  Solicitation requirements.

    The clauses at FAR 52.209-3 and 52.209-4 do not cover all the 
solicitation requirements described in FAR 9.306. If a solicitation 
contains a testing and approval requirement, the contracting officer 
must address the requirements in FAR 9.306(d) and (f) through (j) in the 
solicitation's Section H, special contract requirements.

[74 FR 12732, Mar. 25, 2009]



509.308-1  Testing performed by the contractor.

    In FSS solicitations and contracts that will require the contractor 
to perform testing, insert 552.209-72, Supplemental Requirements for 
First Article Approval--Contractor Testing, and FAR 52.209-3, Alternate 
I.



509.308-2  Testing performed by the Government.

    In FSS solicitations and contracts that will have the Government 
responsible for first article testing, insert 552.209.73, Supplemental 
Requirements for First Article Approval--Government Testing, and FAR 
52.209-4, Alternate I.



         Subpart 509.4_Debarment, Suspension, and Ineligibility



509.401  Applicability.

    This subpart applies to all the following:
    (a) Acquisitions of personal property, nonpersonal services, 
construction, and space in buildings.
    (b) Acquisition of transportation services (Federal Management 
Regulation (FMR) Parts 102-117 and 102-118 (41 CFR parts 102-117 and 
102-118)).
    (c) Contracts for disposal of personal property (FMR Parts 102-36 
through 102-38 (41 CFR parts 102-36 through 102-38)).
    (d) Covered transactions as defined by 41 CFR part 105-68.

[74 FR 12732, Mar. 25, 2009]



509.403  Definitions.

    Fact-finding official, means the Suspension and Debarment Official 
or a designee.
    Notice means a letter sent by certified mail, return receipt 
requested, to the last known address of a party, its counsel, or agent 
for service of process. In the case of a business, such notice may be 
sent to any partner, principal officer, director, owner or co-owner, or 
joint venturer. If no return receipt is received within 10 calendar days 
of mailing, receipt will then be presumed.

[64 FR 37207, July 9, 1999, as amended at 74 FR 12732, Mar. 25, 2009; 81 
FR 1532, Jan. 13, 2016]



509.405  Effect of listing.



509.405-1  Continuation of current contracts.

    (a) When a contractor appears as a current exclusion in the System 
for Award Management (SAM), consider terminating a contract under any of 
the following circumstances:
    (1) Any circumstances giving rise to the debarment or suspension 
also constitute a default in the contractor's performance of the 
contract.
    (2) The contractor presents a significant risk to the Government in 
completing the contract.
    (3) The conduct that provides the cause of the suspension, proposed 
debarment, or debarment involved a GSA contract.
    (b) Before terminating a contract when a contractor appears as a 
current exclusion in the SAM, consider the following factors:
    (1) Seriousness of the cause for debarment or suspension.
    (2) Extent of contract performance.
    (3) Potential costs of termination and reprocurement.
    (4) Need for or urgency of the requirement, contract coverage, and 
the impact of delay for reprocurement.
    (5) Availability of other safeguards to protect the Government's 
interest until completion of the contract.
    (6) Availability of alternate competitive sources to meet the 
requirement (e.g., other multiple award contracts, readily available 
commercial items.)

[[Page 158]]

    (c) The responsibilities of the agency head under FAR 9.405-1 are 
delegated to the Senior Procurement Executive.

[74 FR 12732, Mar. 25, 2009, as amended at 81 FR 1532, Jan. 13, 2016]



509.405-2  Restrictions on subcontracting.

    The responsibilities of the agency head under FAR 9.405-2(a) are 
delegated to the Senior Procurement Official.

[74 FR 12732, Mar. 25, 2009, as amended at 81 FR 1532, Jan. 13, 2016]



509.406  Debarment.



509.406-1  General.

    The Suspension and Debarment Official is the designee under FAR 
9.406-1(c).

[74 FR 12733, Mar. 25, 2009]



509.406-3  Procedures.

    (a) Investigation and referral. (1) Refer to the Suspension and 
Debarment Official matters involving serious contract improprieties or 
performance deficiencies. Performance deficiencies that continue over a 
period of time or apply to more than one contract may warrant debarment 
consideration.
    (2) Refer possible criminal or fraudulent activities to the Office 
of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste, 
Fraud, Abuse, and Corruption. If, after investigation, the OIG believes 
a cause for debarment exists, it will refer the matter to the Suspension 
and Debarment Official for consideration of debarment action.
    (b) Reports. Include in referrals to the Suspension and Debarment 
Official a report that contains at least the following:
    (1) The recommendation and supporting rationale.
    (2) A list of parties to be considered for possible debarment, 
including the contractor, principals, and affiliates. Include last known 
home and business addresses, zip codes, and DUNS Numbers.
    (3) A statement of facts.
    (4) Copies of documentary evidence and a list of witnesses. Include 
addresses and telephone numbers. Determine their availability to appear 
at a fact-finding proceeding and identify the subject matter of their 
testimony.
    (5) GSA's acquisition history with the contractor. Include recent 
experience, copies of the pertinent contracts, and an explanation of 
impact debarment would have on GSA programs. OIG referrals do not 
require this explanation; the Suspension and Debarment Official will 
obtain the information directly from the contracting activity(s).
    (6) A list of any known active or potential criminal investigations, 
criminal or civil proceedings, or administrative claims before the Board 
of Contract Appeals.
    (c) Review. The Suspension and Debarment Official will review the 
report, and after coordinating with assigned legal counsel--
    (1) Initiate debarment action;
    (2) Decline debarment action;
    (3) Request additional information; or
    (4) Refer the matter to the OIG for further investigation and 
development of a case file.
    (d) Decisionmaking process. (1) The Suspension and Debarment 
Official will provide:
    (i) Notice of declinations, proposed debarments, and decisions to 
the referring activity.
    (ii) Notice of proposed debarment to each party being considered for 
debarment.
    (iii) Decision notices to each party after considering information 
in the administrative record and information and argument submitted by 
the affected party or parties.
    (2) A party proposed for debarment:
    (i) Has 30 calendar days after receipt of the notice to respond to 
the Suspension and Debarment Official or the debarment becomes final.
    (ii) May request and receive a copy of the administrative record 
that was the basis for the proposed debarment. If information is 
withheld, the party will be notified and provided the reason.
    (iii) May request the opportunity to present information and 
argument in person to the Suspension and Debarment Official. The 
Suspension and Debarment Official will schedule an oral presentation 
within 20 calendar days of receipt of the request, unless a longer

[[Page 159]]

period of time is requested by the party. An oral presentation is 
informal and a transcript usually is not made. The party may supplement 
the oral presentation with written information and arguments.
    (iv) May identify to the Suspension and Debarment Official material 
facts in dispute and the bases. For an action other than one based on a 
conviction of civil judgment, a party may request review and a written 
finding by a fact-finding official.
    (3) Following a review of the record and, if needed, a presentation 
by the contractor in opposition to the proposed action, the Suspension 
and Debarment Official will determine whether there is a genuine dispute 
of material fact. If so, the Suspension and Debarment Official will 
initiate the fact-finding process. The fact-finding official will:
    (i) Establish a date for a fact-finding proceeding, normally to be 
held within 45 days of the determination of who will function as the 
fact-finding official.
    (ii) Grant extensions for good cause.
    (iii) Provide notice of the scheduled hearing.
    (iv) Provide the parties with a schedule for exchange of documents 
and witness lists.
    (v) Develop an official transcript of the fact-finding proceeding.
    (vi) Provide the Government's representative and the contractor with 
an opportunity to present evidence relevant to the facts at issue. The 
contractor may appear in person or through a representative.
    (vii) Conduct hearings under rules consistent with FAR 9.406-3 
pertaining to fact finding. Neither the Federal Rules of Evidence nor 
the Federal Rules of Civil Procedure govern fact finding. Hearsay 
evidence may be presented and will be given appropriate weight by the 
fact-finding official.
    (viii) Provide for witness testimony. Witnesses may testify in 
person. Witnesses are subject to cross examination.
    (ix) Prepare written findings of fact based on a preponderance of 
the evidence and submit them to both the Suspension and Debarment 
Official and the contractor within 20 calendar days following the 
conclusion of the fact-finding proceeding.

[64 FR 37207, July 9, 1999, as amended at 74 FR 12733, Mar. 25, 2009]



509.407  Suspension.



509.407-1  General.

    The Suspension and Debarment Official is the designee under FAR 
9.407-1(d).

[64 FR 37207, July 9, 1999, as amended at 74 FR 12733, Mar. 25, 2009]



509.407-3  Procedures.

    (a) General. The procedures in 509.406-3 apply to suspension actions 
except as noted in paragraph (b) of this section.
    (b) Fact-finding. (1) Fact-finding will not be conducted in an 
action:
    (i) Based on an indictment.
    (ii) When the Suspension and Debarment Official finds no genuine 
dispute of material facts.
    (2) If the action is not based on an indictment, the Suspension and 
Debarment Official must coordinate with the Department of Justice or 
state prosecutorial authority through OIG. Based on the advice received, 
the Suspension and Debarment Official will determine if fact-finding 
would impair substantial interests of the Federal or state Government. 
In an action not based on an indictment, a suspended party may:
    (i) Identify to the Suspension and Debarment Official material facts 
in dispute and the bases.
    (ii) Request review and a written finding by a fact-finding official 
to resolve genuine disputes of material fact. For procedures involving a 
genuine dispute of material fact, see 509.406-3(d)(3).

[64 FR 37207, July 9, 1999, as amended at 74 FR 12733, Mar. 25, 2009]



PART 511_DESCRIBING AGENCY NEEDS--Table of Contents



       Subpart 511.2_Using and Maintaining Requirements Documents

Sec.
511.204  Solicitation provisions and contract clauses.

[[Page 160]]

             Subpart 511.4_Delivery or Performance Schedules

511.404  Contract clauses.

                Subpart 511.6_Priorities and Allocations

511.600  Scope of subpart.
511.601  [Reserved]
511.602  General.
511.603  Procedures.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37209, July 9, 1999, unless otherwise noted.



       Subpart 511.2_Using and Maintaining Requirements Documents



511.204  Solicitation provisions and contract clauses.

    (a) Federal specifications. The contracting officer shall insert the 
clause at 552.211-72, Reference to Specifications in Drawings, in 
solicitations and contracts citing Federal or agency specifications that 
contain drawings.
    (b) Supply contracts that exceed the simplified acquisition 
threshold. (1) The contracting officer shall include the clause at 
552.211-73, Marking, in solicitations and contracts for supplies when 
deliveries may be made to both civilian and military activities and the 
contract amount is expected to exceed the simplified acquisition 
threshold.
    (2) The contracting officer shall include the clause at 552.211-75, 
Preservation, Packaging, and Packing, in solicitations and contracts for 
supplies expected to exceed the simplified acquisition threshold. The 
contracting officer may also include the clause in contracts estimated 
to be at or below the simplified acquisition threshold when appropriate. 
The contracting officer shall use Alternate I in solicitations and 
contracts for all Federal Supply Schedule Contracts.
    (3) The contracting officer shall insert a clause substantially the 
same as the clause at 552.211-76, Charges for Packaging, Packing, and 
Marking, in solicitations and contracts for supplies to be delivered to 
GSA distribution centers.
    (4) The contracting officer shall include the clause 552.211-85, 
Consistent Pack and Package Requirements, in solicitations and contracts 
for supplies when deliveries may be made to both civilian and military 
activities and the contract amount is expected to exceed the simplified 
acquisition threshold.
    (5) The contracting officer shall include the clause 552.211-86, 
Maximum Weight Per Shipping Container, in solicitations and contracts 
for supplies when deliveries may be made to both civilian and military 
activities and the contract amount is expected to exceed the simplified 
acquisition threshold.
    (6) The contracting officer shall include the clause 552.211-87, 
Export Packing, in solicitations and contracts for supplies when 
deliveries may be made to both civilian and military activities and the 
contract amount is expected to exceed the simplified acquisition 
threshold.
    (7) The contracting officer shall include the clause 552.211-88, 
Vehicle Export Preparation, in solicitations and contracts for supplies 
when deliveries may be made to both civilian and military activities and 
the contract amount is expected to exceed the simplified acquisition 
threshold.
    (8) The contracting officer shall include the clause at 552.211-89, 
Non-Manufactured Wood Packaging Material for Export, in solicitations 
and contracts for supplies when deliveries may be made to both civilian 
and military activities overseas and the contract amount is expected to 
exceed the simplified acquisition threshold.
    (9) The contracting officer shall include the clause 552.211-90, 
Small Parts, in solicitations and contracts for supplies when deliveries 
may be made to both civilian and military activities and the contract 
amount is expected to exceed the simplified acquisition threshold.
    (10) The contracting officer shall include the clause 552.211-91, 
Vehicle Decals, Stickers, and Data Plates, in solicitations and 
contracts for supplies when deliveries may be made to both civilian and 
military activities and the contract amount is expected to exceed the 
simplified acquisition threshold.
    (11) The contracting officer shall include the clause 552.211-92, 
Radio Frequency Identification (RFID) using Passive Tags, in 
solicitations and contracts for supplies when deliveries may be made to 
military activities and the

[[Page 161]]

contract amount is expected to exceed the simplified acquisition 
threshold.
    (c) Supply contracts. The contracting officer shall include the 
clause at 552.211-77, Packing List, in solicitations and contracts for 
supplies, including purchases over the micropurchase threshold. Use 
Alternate I in solicitations and contracts for all Federal Supply 
Schedule Contracts.

[74 FR 66253, Dec. 15, 2009, as amended by 80 FR 28849, May 20, 2015; 81 
FR 36429, June 6, 2016]



             Subpart 511.4_Delivery or Performance Schedules



511.404  Contract clauses.

    In supply contracts, the contracting officer shall use the clauses 
as specified in this section.
    (a) Shelf-life items. The contracting officer shall use the 
following clauses in solicitations and contracts that require delivery 
of shelf-life items within a specified number of months from the date of 
manufacture or production:
    (1) The contracting officer shall insert 552.211-79, Acceptable Age 
of Supplies, if the required shelf-life period is 12 months or less, and 
lengthy acceptance testing may be involved. For items having a limited 
shelf-life, substitute Alternate I when required by the director of the 
portfolio concerned.
    (2) The contracting officer shall insert 552.211-80, Age on 
Delivery, if the required shelf-life period is more than 12 months, or 
when source inspection can be performed within a short time period.
    (b) Stock replenishment contracts. The contracting officer shall 
insert 552.211-81, Time of Shipment, in solicitations and stock 
replenishment contracts that do not include the Availability for 
Inspection, Testing, and Shipment/Delivery clause at 552.211-83 and 
require shipment within 45 calendar days after receipt of the order. If 
shipment is required in more than 45 days, the contracting officer shall 
use Alternate I.
    (c) Indeterminate testing time. The contracting officer shall insert 
552.211-83, Availability for Inspection, Testing, and Shipment/Delivery, 
in solicitations and contracts that provide for source inspection by 
Government personnel and that require lengthy testing for which time 
frames cannot be determined in advance. If the contract is for stock 
items, the contracting officer shall use Alternate I.
    (d) The contracting officer shall insert the clause at 552.211-94, 
Time of Delivery, in solicitations and contracts for supplies for the 
Stock Program when neither of the FAR delivery clauses (FAR 52.211-8 or 
52.211-9) is suitable.

[74 FR 66253, Dec. 15, 2009]



                Subpart 511.6_Priorities and Allocations

    Source: 69 FR 55934, Sept. 16, 2004, unless otherwise noted.



511.600  Scope of subpart.

    Pursuant to the Defense Priorities and Allocations System (DPAS) 
Delegation 3, the Department of Commerce (DOC) has delegated to GSA the 
authority to use the DPAS under certain conditions. DPAS Delegation 3 
restricts use of DPAS authority to GSA supply system procurement in 
support of the Department of Defense (DoD), Department of Energy (DoE), 
and Federal Emergency Management Agency (FEMA) approved programs.

[74 FR 66254, Dec. 15, 2009]



511.601  [Reserved]



511.602  General.

    (a) The purpose of the DPAS is to assure the timely availability of 
industrial resources to meet current national defense, energy, and civil 
emergency preparedness program requirements and to provide an operating 
system to support rapid industrial response in a national emergency. The 
primary statutory authority for the DPAS is Title I of the Defense 
Production Act of 1950, as amended, with additional authority from the 
Selective Service Act of 1948 and the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act. Executive Orders 12919 and 12742 delegate 
to the DOC authority to administer the DPAS. Within the DOC, the Office 
of Strategic Industries and Economic Security (SIES)

[[Page 162]]

is assigned responsibility for DPAS implementation, administration, and 
compliance.
    (b) The DPAS is published in the Code of Federal Regulations at 15 
CFR part 700. This regulation provides an overview, a detailed 
explanation of operations and procedures, and other implementing 
guidance, including information on special priorities assistance and 
compliance.
    (c) Orders placed under DPAS are ``rated orders.'' Rated orders must 
receive preferential treatment only as necessary to meet delivery 
requirements. Rated orders are identified by a rating symbol of either 
``DX'' or ``DO'' followed by a program identification symbol. All ``DO'' 
rated orders have equal priority with each other and take preference 
over unrated orders. All ``DX'' rated orders have equal priority with 
each other and take preference over ``DO'' rated orders and unrated 
orders. A program identification symbol indicates which approved program 
is supported by the rated order.
    (d) The authority delegated to GSA shall not be used to support the 
procurement of any items that--
    (1) Are commonly available in commercial markets for general 
consumption;
    (2) Do not require major modification when purchased for approved 
program use;
    (3) Are readily available in sufficient quantity so as to cause no 
delay in meeting approved program requirements; or
    (4) Are to be used primarily for administrative purposes (including 
Federal Supply Classification (FSC) classes, groups, or items), such as 
for personnel or financial management. The Commissioner, FAS, shall 
issue additional guidance, as may be necessary, to ensure effective 
implementation of its delegated DPAS authority.

[74 FR 66254, Dec. 15, 2009]



511.603  Procedures.

    (a) A DPAS rating may be placed against an entire contract at time 
of award or an individual order issued under an existing, otherwise 
unrated, contract. FAR 11.604 requires contracting officers to insert 
the provision at 52.211-14, Notice of Priority Rating for National 
Defense, Emergency Preparedness, and Energy Program Use, in 
solicitations when the contract or order to be awarded will be a rated 
order and to insert the clause at 52.211-15, Defense Priority and 
Allocation Requirements, in contracts that are rated orders.
    (b) In addition to the FAR provision and clause referenced in 
paragraph (a) of this section, the contract or order must include the 
following (see 15 CFR 700.12):
    (1) The appropriate priority rating symbol (i.e., either ``DO'' or 
``DX'') along with the program identification symbol. When GSA 
contracting officers place DO rated orders, they must use program 
identification symbol ``K1''. When placing a DX-rated order for other 
agencies, GSA contracting officers must use the requesting agency 
program identification symbol from the DoD Master Urgency List and may 
only do so when GSA is acting as the procuring agent for DoD or DoE and 
has received a ``DX'' rated contract or order from either department.
    (2) A required delivery date. The words ``as soon as possible'' or 
``immediately'' do not constitute a required delivery date. Use of 
either a specific date or a specified number of days ARO (after receipt 
of order) is acceptable.
    (3) The written signature on a manually placed order, or the digital 
signature or name on an electronically placed order of an individual 
authorized to place rated orders.
    (4) A statement that reads substantially as follows: ``This is a 
rated order certified for national defense use, and you are required to 
follow all the provisions of the Defense Priorities and Allocations 
System regulation (15 CFR part 700)''.
    (c) Multiple and Single Award Schedule contracts are not rated at 
time of award.

[74 FR 66254, Dec. 15, 2009]



PART 512_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents



    Authority: 40 U.S.C. 486(c).

[[Page 163]]



   Subpart 512.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



512.301  Solicitation provisions and contract clauses for the acquisition
of commercial items.

    (a) Solicitation provisions and clauses. Insert these provisions or 
clauses in solicitations or solicitations and contracts, respectively, 
in accordance with the instructions provided:
    (1) 552.212-71, Contract Terms and Conditions Applicable to GSA 
Acquisition of Commercial Items, when listed clauses apply. The clause 
provides for incorporation by reference of terms and conditions which 
are, to the maximum extent practicable, consistent with customary 
commercial practice. If necessary, tailor this clause.
    (2) 552.212-72, Contract Terms and Conditions Required to Implement 
Statutes or Executive Orders Applicable to GSA Acquisitions of 
Commercial Items, when listed clauses apply. The clause provides for the 
incorporation by reference of terms and conditions required to implement 
provisions of law or executive orders that apply to commercial item 
acquisitions.
    (b) Discretionary use of GSAR provisions and clauses. Consistent 
with the limitations contained in FAR 12.302(c), include in 
solicitations and contracts by addendum other GSAR provisions and 
clauses.
    (c) Use of additional provisions and clauses. The Senior Procurement 
Executive must approve the use of a provision or clause that is either 
not:
    (1) Prescribed in the FAR or GSAR for use in contracts for 
commercial items.
    (2) Consistent with customary commercial practice.
    (d) In solicitations issued in conjunction with the policy and 
procedures in FAR part 14, Sealed Bidding; or FAR part 15, Contracting 
by Negotiation, include the two notices in paragraphs (d)(1) and (d)(2) 
of this section, except that acquisitions of leasehold interests in real 
property, must include only the notice in paragraph (d)(1) of this 
section.
    (1) The information collection requirements contained in this 
solicitation/contract are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0163.
    (2) The General Services Administration's hours of operation are 8 
a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or 
otherwise submitted after 4:30 p.m. will be considered submitted the 
following business day. Requests for postaward debriefings delivered 
after 4:30 p.m. will be considered received and filed the following 
business day.

[75 FR 5242, Feb. 2, 2010]

[[Page 164]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES



                           PART 513 [RESERVED]



PART 514_SEALED BIDDING--Table of Contents



                   Subpart 514.2_Solicitation of Bids

Sec.
514.201  Preparation of invitations for bids.
514.201-1  Uniform contract format.
514.201-2  Part I--The Schedule.
514.201-6  Solicitation provisions.
514.201-7  [Reserved]
514.202  General rules for solicitation of bids.
514.202-4  Bid samples.
514.202-5  Descriptive literature.
514.203-1  Transmittal to prospective bidders.
514.270  Aggregate awards.
514.270-1  Definition.
514.270-2  Guidelines for use.
514.270-3  Evaluation factors for award.
514.270-4  Grouping line items for aggregate award.
514.270-5  Evaluation methodologies for aggregate awards.
514.270-6  Guidelines for using the weight factors method.
514.270-7  Guidelines for using the price list method.

           Subpart 514.4_Opening of Bids and Award of Contract

514.407  Mistakes in bids.
514.407-3  Other mistakes disclosed before award.
514.407-4  Mistakes after award.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37211, July 9, 1999, unless otherwise noted.



                   Subpart 514.2_Solicitation of Bids



514.201  Preparation of invitations for bids.



514.201-1  Uniform contract format.

    Include the following notice in each solicitation:

    The information collection requirements contained in this 
solicitation/contract, are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0162.



514.201-2  Part I--The Schedule.

    (a) When using Standard Form 33, Solicitation, Offer and Award, 
include the following cautionary notice:
    ``Notice to Bidders--Use Item 13 of the Standard Form 33, 
Solicitation, Offer and Award, to offer prompt payment discounts. The 
Prompt Payment clause of this solicitation sets forth payment terms. Do 
not insert any statement in Item 13 that requires payment sooner than 
the time stipulated in the Prompt Payment clause (See FAR 52.232-25, 
52.232-26, or 52.232-27, as applicable). EXAMPLE: If you insert ``NET 
20'' in Item 13, GSA will reject your bid as nonresponsive because the 
entry contradicts the 30 day payment terms specified in the Prompt 
Payment clause.''
    (b) When using other authorized forms (e.g., Standard Form 1447, 
Solicitation/Contract; Standard Form 1449, Solicitation/Contract/Order 
for Commercial Items), include the notice in paragraph (a) of this 
section. Change the reference to the form number, form title, and item 
number accordingly.

[74 FR 47738, Sept. 17, 2009]



514.201-6  Solicitation provisions.

    When considering all or none bids, insert the provision at 552.214-
70, ``All or None'' Bids, in the solicitation.

[74 FR 47739, Sept. 17, 2009]



514.201-7  [Reserved]



514.202  General rules for solicitation of bids.



514.202-4  Bid samples.

    (a) Requirements for samples in invitations for bids. (1) When bid 
samples are required, the contracting officer shall require bidders to 
submit samples produced by the manufacturer whose products will be 
supplied under the contract.
    (2) The FAR limits use of bid samples to cases where the contracting 
officer cannot describe some characteristics of

[[Page 165]]

a product adequately in the specification or purchase description. This 
usually applies to subjective characteristics. The contracting officer 
may determine that there is a need to examine objective characteristics 
of bid samples to determine the responsiveness of a bid. The contracting 
officer should base the determination on past experience or other valid 
considerations. In the solicitation, separately list ``Subjective 
Characteristics'' and ``Objective Characteristics''.
    (3) A provision appears at 552.214-72, Bid Sample Requirements. This 
provision may be modified to fit the circumstances of a procurement.
    (b) Handling bid samples. (1) Samples from accepted bids must be 
retained for the period of contract performance. If there are no 
outstanding claims regarding the contract, the contracting officer may 
authorize disposal of the samples at the end of the contract term 
following the bidder's instructions.
    (2) If the contracting officer anticipates a claim regarding the 
contract, the contracting officer shall require that the bid samples be 
retained until the claim is resolved.
    (3) The contracting officer shall require that samples from 
unsuccessful bids be retained until award. After award, these samples 
may be disposed of following the bidder's instructions.

[74 FR 47739, Sept. 17, 2009]



514.202-5  Descriptive literature.

    Requirements for Invitations for bids. When using brand name or 
equal purchase descriptions, the provision at FAR 52.211-6 satisfies the 
requirement for descriptive literature.

[74 FR 47739, Sept. 17, 2009]



514.203-1  Transmittal to prospective bidders.

    Prospective bidders, as used in FAR 14.203-1, include both the 
following:
    (a) The incumbent contractor, except when its written response to 
the notice of contract action under FAR subpart 5.2 states a negative 
interest.
    (b) Bidders that responded to recent solicitations for the same or 
similar items.



514.270  Aggregate awards.



514.270-1  Definition.

    Aggregate award means an arrangement whereby two or more separately-
priced line items are combined for award to that bidder whose bid will 
result in the lowest overall cost to the Government for the line items 
as a group. The individual price for each item does not have to be the 
lowest bid received. (See also the definition of a ``line item'' in FAR 
3.302.)



514.270-2  Guidelines for use.

    (a) GSA usually solicits prices and reserves the right to make award 
for individual line items. In some cases it serves GSA's best interest 
to combine two or more line items for an aggregate award. Such cases 
include when:
    (1) Users desire uniformity of design, style, and finish (e.g., 
suites of household furniture).
    (2) The articles will be assembled and used as a unit, and different 
manufacturers' components may not be interchangeable.
    (3) Users have high demand for certain articles, but demand for 
related articles is insufficient to attract competitive bids (e.g., 
various sized of socket wrenches). Awarding the low-demand articles in 
conjunction with the high-demand articles may encourage competition.
    (4) Awarding the low-demand articles in conjunction with the high-
demand articles may encourage competition.
    (5) One location (delivery point) has a large requirement, and 
another location has a requirement too small to individually attract 
competitive bids.
    (6) Awarding and administering numerous small contracts for similar 
articles or services is impractical.
    (b) Before deciding to combine items for aggregate award, the 
contracting officer should consider the following factors:
    (1) The capability of bidders to furnish the types and quantities of 
supplies or services in the aggregate.
    (2) How grouping delivery points will affect bidders.
    (3) Which combinations will accurately project the lowest overall 
cost to the Government.

[[Page 166]]

    (c) The contracting officer should not use an aggregate award if it 
will significantly restrict the number of eligible bidders.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



514.270-3  Evaluation factors for award.

    The solicitation should clearly state the basis for evaluating bids 
for aggregate award, require bidders to submit a price on each item 
within the group or a percentage to be added or subtracted from a list 
price, and advise bidders that failure to submit prices as required 
within a group makes a bid ineligible for award for that group.

[74 FR 47739, Sept. 17, 2009]



514.270-4  Grouping line items for aggregate award.

    (a) Supplies and services. This subsection applies to acquisitions 
of supplies and services.
    (b) Effect on compeition. Provide for full and open competition when 
grouping items for award. Grouping items for award may preclude a 
significant of firms from bidding. This occurs if firms are unable to 
provide all the types or quanities of supplies or services, or make 
deliveries to the various delivery points included in the prospective 
aggregate group.
    (c) Grouping different articles. Include only related articles in an 
aggregate group. Related articles are those normally manufactured or 
produced by a majority of prospective bidders. Grouping unrelated 
articles often restricts competition unnecessarily.
    (d) Grouping geographic locations or delivery points. Consider the 
following guidelines before deciding to group different geographic 
locations or delivery points:
    (1) A delivery point may have sufficient requirements so that 
individual shipments involve economic production runs and carload or 
truckload quanities. In this case, list it as a separate line item.
    (2) The types of bidders (i.e., small or large firms, manufacturers 
or distributors, etc.) who responded to previous solicitations can 
provide important information. For example, if previous bidders are 
distributors with franchises in certain territories, grouping different 
territories could tend to restrict competition.
    (3) Transportation costs can affect competition and pricing. They 
may constitute a significant portion of the total delivered cost. Obtain 
the advice and assistance of transportation specialists before grouping 
geographic locations or delivery points. Depending upon the supplies 
being acquired:
    (i) Grouping widespread geographic locations or delivery points may 
reduce competition or result in higher prices. It can cause the loss of 
``area pricing'' advantages provided by a supplier with a single 
production point.
    (ii) Conversely, for many small commercial items (hand tools, locks, 
etc.), manufacturers may quote the same price for delivery anywhere in 
the U.S.
    (iii) Tariff boundaries can also affect how manufacturers price 
deliveries to different areas.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



514.270-5  Evaluation methodologies for aggregate awards.

    (a) Definite quantity contracts without options. For definite 
quantity contracts without options, the evaluated bid price is the total 
bid price, as adjusted for any price-related factors identified in the 
solicitation. This reflects the actual cost to the Government and will 
identify the most advantageous bid.
    (b) Indefinite quantity contracts, requirements contracts, and 
options. Indefinite quantity and requirements contracts use estimated 
quantities. Options involve the probability of whether and when the 
options will be exercised. These situations may result in unbalanced 
bids (see FAR 15.404-1(g)), leading to inaccurate evaluation of the 
projected cost and award to other than the most advantageous bid. To 
avoid unbalanced bids, GSA has two preferred methods for evaluating bids 
for aggregate awards: weight factors and price list.
    (1) Weight factors method. Assign a weight to each item in a group. 
The weight is based on the portion of quantities that item represents. 
To evaluate bids, multiply each unit price by its weight factor, then 
total the results.

[[Page 167]]

    (2) Price list method. Establish prices for bidders to use as a base 
for preparing their bids. Prepare a list that identifies a base price 
for each item in a group. Bidders bid a percentage factor to add to or 
subtract from the base price.



514.270-6  Guidelines for using the weight factors method.

    (a) Use the weight factors method when there are reliable estimates 
for the quantities needed in an acquisition. Reliable estimates of 
quantities form the foundation for:
    (1) Accurate evaluation of the projected cost of each bid.
    (2) An appropriate determination of which bid is most advantageous 
to the Government for the aggregate group.
    (b) Assign a weight factor to each item in a group. Develop the 
weight factor by calculating the portion of the total quantity in a 
defined group that each item represents.
    (c) To evaluate bid prices, first multiply the price bid for each 
item (unit price X quantity) by its weight factor. Then, add the 
subtotals together to project the cost for the aggregate group.
    (d) Estimated quantities may be reduced to smaller numbers by a 
common denominator. This may help facilitate the computations involved 
in evaluating bids.
    (e) Consider all price-related factors identified in the 
solicitation. Award to the responsive and responsible bidder with the 
lowest evaluated overall cost to the Government for the aggregate group. 
This represents the most advantageous bid.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



514.270-7  Guidelines for using the price list method.

    (a) General. The price list method helps avoid unbalanced bidding 
when making aggregate awards, but lack accurate estimates of anticipated 
quantities. This method establishes base prices for bidders to use in 
preparing their bids.
    (b) Solicitation requirements. When using the price list method, in 
the solicitation:
    (1) Include the price list.
    (2) Include an estimate of requirements.
    (3) Require the bidder to express its price as ``net'' or as a 
percentage added to or subtracted from the list prices for each group. 
Require the bidder to quote only one percentage factor for each group. 
This means that the bidder provides one percentage factor that applies 
to every item in a group; not a separate percentage for each item. 
``Net'' indicates the bidder chooses to submit the list prices as its 
bid.
    (4) Identify the percentage factor in paragraph (b)(3) of this 
section as a price related evaluation factor.
    (c) Developing list prices. Price lists may be developed using one 
or more of the following sources:
    (1) Industry published prices.
    (2) Industry surveys.
    (3) Government cost estimates based on knowledge of the supplies or 
services and previous contract prices.
    (d) First time use for an item or service. The first time the 
contracting officer uses list prices for an item or service, give 
prospective bidders an opportunity to review the proposed list. Also 
provide information on how GSA will use the list prices. This 
information may be provided in a draft solicitation.
    (e) Balanced prices. Ensure that the list prices for the grouped 
items bear a reasonable and balanced relationship to one another. Prices 
may be used from previous awards made using the weight factors method to 
develop price lists. Review those prices first to ensure they did not 
result from unbalanced bidding.
    (f) Evaluation and award. Consider all price-related factors 
identified in the solicitation. Award to the responsive and responsible 
bidder whose percentage factor produces the most favorable price to the 
Government. This represents the most advantageous bid.
    (g) Example. The following illustrates a bidding schedule 
arrangement for a group of items for aggregate award under the price 
list method:

[[Page 168]]



 Drills, Twist, High Speed, Under Federal Specification (No. and Date), and Amendment (No. and Date), Amendment
                      (No. and Date) Wire Gauge Sizes, Straight Shank, Short Length, Type C
----------------------------------------------------------------------------------------------------------------
     Item No.        National Stock No.       Drill size       Est. quantity         Unit           List price
----------------------------------------------------------------------------------------------------------------
                                           Group 1 (Items 1 through 5)
----------------------------------------------------------------------------------------------------------------
1.................      5133-00-189-9246  1.................           2,800  Pkg...............          $11.16
2.................      5133-00-189-9247  2.................           2,400  Pkg...............           11.16
3.................      5133-00-189-9248  3.................           2,800  Pkg...............           10.44
4.................      5133-00-189-9249  4.................           1,600  Pkg...............           10.80
5.................      5133-00-189-9250  5.................           2,000  Pkg...............           10.80
----------------------------------------------------------------------------------------------------------------

    The bid on each item above is the list price shown minus/plus __ 
percent. (Bidder, insert ``net'' or a single percentage amount in the 
blank space and cross out minus or plus, as appropriate.)
    (h) Special considerations for contracts for store stock items. Show 
estimated quantities only if estimates of demand for each item within a 
group can be derived from Government records or verified contractor 
sales reports. Use only current estimates. If the Government's needs 
cannot be estimated, the solicitation may include past orders. (See CG 
Decision, B-209037, 82-2 CPD para 323 (1982).)
    (i) Special considerations for repair and alteration contracts. In 
the solicitation:
    (1) List the estimated quantities for work to be performed during 
both normal working hours and outside of normal working hours.
    (2) State the percent of work anticipated to be performed during 
normal working hours.
    (3) List the unit prices for work to be performed during both normal 
working hours and outside of normal working hours.
    (4) Define ``normal'' in terms of hours and days of the week.
    (5) Advise bidders of the previous year's total expenditures or 
portions of that total attributable to the listed items.
    (6) If providing quantity estimates, state that the estimates are 
for information only and do not constitute guarantees or commitments to 
order items under the contract.
    (7) Solicit two percentage factors for the line item unit prices 
listed: one for the unit prices for work performed during normal working 
hours and the second for the unit prices for work performed outside of 
normal working hours.
    (8) When the solicitation further groups unit prices by trade or 
business category, multiple percentages may be required.
    (9) For the evaluated bid price, add together the following 
percentages:
    (i) The percentage of work performed during normal work hours 
multiplied by the total estimate adjusted by the bidder's percentage 
factor for that portion of the work, plus
    (ii) The percentage of work performed during other than normal 
working hours multiplied by the total estimate adjusted by the bidder's 
percentage factor for that portion of the work.
    (10) Consider other price-related factors identified in the 
solicitation. Make award to the responsible and responsive bidder 
submitting the lowest overall evaluated bid price for the aggregate 
group. This represents the most advantageous bid.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



           Subpart 514.4_Opening of Bids and Award of Contract



514.407  Mistakes in bids.



514.407-3  Other mistakes disclosed before award.

    Delegation of authority by head of the agency. Under FAR 14.407-
3(e), contracting directors (see 502.101) are authorized, without power 
of redelegation, to make:
    (a) The determinations regarding corrections and withdrawals under 
FAR 14.407-3(a), (b), and (c); and

[[Page 169]]

    (b) The corollary determinations not to permit withdrawal or 
correction under FAR 14.407-3(d).

[74 FR 47740, Sept. 17, 2009]



514.407-4  Mistakes after award.

    The contracting director and assigned counsel are required to review 
and approve the contracting officer's determinations under FAR 14.407-
4(b) and (c).

[74 FR 47740, Sept. 17, 2009]



PART 515_CONTRACTING BY NEGOTIATION--Table of Contents



   Subpart 515.2_Solicitation and Receipt of Proposals and Information

Sec.
515.204  Contract format.
515.209  Solicitation provisions and contract clauses.
515.209-70  Examination of records by GSA clause.

                     Subpart 515.3_Source Selection

515.305  Proposal evaluation.
515.305-70  Use of outside evaluators.

                     Subpart 515.4_Contract Pricing

515.408  Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37214, July 9, 1999, unless otherwise noted.



   Subpart 515.2_Solicitation and Receipt of Proposals and Information



515.204  Contract format.

    (a) The uniform contract format is not required for leases of real 
property (See GSAM 570.116).
    (b) The Senior Procurement Executive is the agency head's designee 
for the purposes of granting exemptions to the use of the Uniform 
Contract Format (see FAR 15.204(e)).

[81 FR 36425, June 6, 2016]



515.209  Solicitation provisions and contract clauses.



515.209-70  Examination of records by GSA clause.

             Clause for Other Than Multiple Award Schedules

    (a) Examination of records by GSA clause for other than multiple 
award schedule (MAS) contracts. Insert the clause at 552.215-70, 
Examination of Records by GSA, in all solicitations and contracts above 
the simplified acquisition threshold, including acquisitions of 
leasehold interests in real property, that meet any of the conditions 
listed below:
    (2) Provide for advance payments, progress payments based on cost, 
or guaranteed loan.
    (3) Contain a price warranty or price reduction clause.
    (4) Involve income to the Government where income is based on 
operations under the control of the contractor.
    (5) Include an economic price adjustment clause where the adjustment 
is not based solely on an established, third party index.
    (6) Are requirements, indefinite-quantity, or letter type contracts 
as defined in FAR part 6.
    (7) Are subject to adjustment based on a negotiated cost escalation 
base.
    (8) Contain the provision of FAR 52.223-4, Recovered Material 
Certification.
    (9) The contracting officer may modify the clause at 552.215-70 to 
define the specific area of audit (e.g., the use or disposition of 
Government-furnished property). Office of General Counsel or the Office 
of Regional Counsel and the Assistant Inspector General for Auditing or 
Regional Inspector General for Auditing, as appropriate, must concur in 
any modifications to the clause.
    (b) Insert the clause at 552.215-73, Notice, in all solicitations 
for negotiated procurements above the simplified acquisition threshold 
in accordance with FAR part 15.

                   Clause for Multiple Award Schedules

    (c) Insert the clause at 552.215-71, Examination of Records by GSA 
(Multiple

[[Page 170]]

Award Schedule), in solicitations and contracts for MAS contracts.
    (d) With the Senior Procurement's Executive approval, you may modify 
the clause at 552.215-71 to provide for post-award access to and the 
right to examine records to verify that the pre-award/modification 
pricing, sales or other data related to the supplies or services offered 
under the contract which formed the basis for the award/modification was 
accurate, current, and complete. The following procedures apply:
    (1) Such a modification of the clause must provide for the right of 
access to expire 2 years after award or modification.
    (2) Before modifying the clause, you must make a determination that 
absent such access there is a likelihood of significant harm to the 
Government and submit it to the Senior Procurement Executive for 
approval.
    (3) The determinations under paragraph (d)(2) of this section must 
be made on a schedule-by-schedule basis.

[64 FR 37214, July 9, 1999, as amended at 81 FR 36425, June 6, 2016]



                     Subpart 515.3_Source Selection



515.305  Proposal evaluation.

    (a) Restrictions placed on a proposal by the submitter. If you 
receive a proposal with more restrictive conditions than those in the 
provision at FAR 52.215-1(e), ask whether the submitter is willing to 
accept the conditions of the paragraph at FAR 52.215-1(e). If the 
submitter refuses, consult with legal counsel on whether to accept the 
proposal as marked or return it.
    (b) Actions before releasing proposal. Before releasing any proposal 
to an evaluator you must take all the following actions:
    (1) Obtain the signed original ``Conflict of Interest Acknowledgment 
and Nondisclosure Agreement'' from each Government and nongovernment 
individual serving as an evaluator. Use the Acknowledgment/Agreement in 
Figure 515.3-1.
    (i) For employees of other Executive agencies, replace the reference 
in paragraph (c) of the Acknowledgement/Agreement to GSA's supplemental 
standards with a reference to the applicable agency.
    (ii) for nongovernment evaluators, substitute paragraph (c) of the 
Acknowledgement/Agreement with the following language and delete 
paragraph (h):

    (c) I have read and understand the requirements of subsection 27(a) 
and 27(b) of the Office of Federal Procurement Policy Act (41 U.S.C. 
423).

    (2) Attach to each proposal a cover page bearing the following 
notice:

                Government Notice for Handling Proposals

    To anyone receiving this proposal or proposal abstract:
    (1) This proposal must be used and disclosed for evaluation purposes 
only.
    (2) You must apply a copy of this Government notice to any 
reproduction or abstract of this proposal.
    (3) You must comply strictly with any authorized restrictive notices 
which the submitter places on this proposal.
    (4) You must not disclose this proposal outside the Government for 
evaluation purposes except to the extent authorized by, and in 
accordance with, the procedures in 48 CFR 515.305-71.



515.305-70  Use of outside evaluators.

    (a) Conditions. To use outside evaluators, you must meet the 
restrictions in FAR 37.203 and 537.2.
    (b) Limitations on disclosing proposal information. You may disclose 
proposal information outside the Government before the Government's 
decision as to contract award only to the extent authorized in this 
section. Disclosure and handling must comply with FAR 3.1 and 503.1.
    (c) Solicitation notice. Include in the solicitation a notice 
substantially as follows:

                    Notice About Releasing Proposals

    (1) The Government intends to disclose proposals received in 
response to this solicitation to nongovernment evaluators.
    (2) Each evaluator will sign and provide to GSA a ``Conflict of 
Interest Acknowledgment and Nondisclosure Agreement.''

[[Page 171]]

 Figure 515.3-1--Conflict of Interest Acknowledgment and Nondisclosure 
                                Agreement

     Conflict of Interest Acknowledgment and Nondisclosure Agreement

    For proposals submitted in response to GAS solicitation no. ____, I 
agree to the following:
    (a) To the best of my knowledge and belief, no conflict of interest 
exists that may either:
    (1) Diminish my capacity to impartially review the proposals 
submitted.
    (2) Or result in a biased opinion or unfair advantage.
    (b) In making the above statement, I have considered all the 
following factors that might place me in a position of conflict, real or 
apparent, with the evaluation proceedings:
    (1) All my stocks, bonds, other outstanding financial interests or 
commitments.
    (2) All my employment arrangements (past, present, and under 
consideration).
    (3) As far as I know, all financial interests and employment 
arrangements of my spouse, minor children, and other members of my 
immediate household.
    (c) I have read and understand the requirements of the Standards of 
Ethical Conduct for Employees of the Executive Branch (5 CFR Part 2635) 
and Supplemental Standards of Ethical Conduct for Employees of the 
General Service Administration (5 CFR Part 6701).
    (d) I have a continuing obligation to disclose any circumstances 
that may create an actual or apparent conflict of interest. If I learn 
of any such conflict, I will report it immediately to the Contracting 
Officer. I will perform no more duties related to evaluating proposals 
until I receive instructions on the matter.
    (e) I will use proposal information for evaluation purposes only. I 
understand that any authorized restriction on disclosure placed on the 
proposal by the prospective contractor, prospective subcontractor, or 
the Government applies to any reproduction or abstracted information of 
the proposal.
    (f) I will use my best efforts to safeguard proposal information 
physically. I will not disclose the contents of, nor release any 
information about, the proposals to anyone other than:
    (1) The Source Selection Evaluation Board or other panel assembled 
to evaluate proposals submitted in response to the solicitation 
identified above.
    (2) Other individuals designed by the contracting Officer.
    (g) After completing evaluation, I will return to the Government all 
copies of the proposals and any abstracts.
    (h) GSA Appropriations Act restriction: These restrictions are 
consistent with and do not supersede, conflict with or otherwise alter 
the employee obligations, rights, or liabilities created by Executive 
Order No. 12958; section 7211 of title 5, United States Code (governing 
disclosure of Congress); section 1034 of title 10, United States Code, 
as amended by the Military Whistleblower Protection Act (governing 
disclosure to Congress by members of the military); section 2302(b)(8) 
of title 5, United States Codes, as amended by the Whistleblower 
Protection Act (governing disclosures of illegality, waste, fraud, abuse 
or public health or safety threats); the Intelligence Identities 
Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures 
that could expose confidential Government agents); and the statutes 
which protect against disclosure that may compromise the national 
security, including sections 641, 793, 794, 798, and 952 of title 18, 
United States Code, and section 4(b) of the Subversive Activities Act of 
1950 (50 U.S.C. 783(b). The definitions, requirements, obligations, 
rights, sanctions, and liabilities created by said Executive order and 
listed statutes are incorporated into this agreement and are 
controlling.
________________________________________________________________________
(Enter name of evaluator and organization)
________________________________________________________________________
Date



                     Subpart 515.4_Contract Pricing



515.408  Solicitation provisions and contract clauses.

      MAS Requests for Information Other Than Cost or Pricing Data

    (a) Use Alternate IV of the FAR provision at 52.215-20, Requirements 
for Cost or Pricing Data or Information Other Than Cost or Pricing Data, 
for MAS solicitations to provide the format for submission of 
information other than cost or pricing data for MAS solicitations. To 
provide uniformity in requests under the MAS program, insert the 
following in paragraph (b) of the provision:
    (1) An offer prepared and submitted in accordance with the clause at 
552.212-70, Preparation of Offer (Multuiple Award Schedule).
    (2) Commercial sales practices. When the solicitation contains the 
basic clause 552.238-74 Industrial Funding Fee and Sales Reporting, the 
Offeror must submit information in the format provided in this 
solicitation in accordance with the instructions at Figure 515.4-2 of 
the GSA Acquisition Regulation (48 CFR 515.4-2), or submit information 
in the Offeror's own format.
    (3) Any additional supporting information requested by the 
Contracting Officer. The Contracting Officer may require additional

[[Page 172]]

supporting information, but only to the extent necessary to determine 
whether the price(s) offered is fair and reasonable.
    (4) By submission of an offer in response to this solicitation, the 
Offeror grants the Contracting Officer or an authorized representative 
the right to examine, at any time before initial award, books, records, 
documents, papers, and other directly pertinent records to verify the 
pricing, sales and other data related to the supplies or services 
proposed in order to determine the reasonableness of price(s). Access 
does not extend to Offeror's cost or profit information of other data 
relevant solely to the Offeror's determination of the prices to be 
offered in the catalog or marketplace.
    (b) When the contract contains the basic clause 552.238-74 
Industrial Funding Fee and Sales Reporting, insert the following format 
for commercial sales practices in the exhibits or attachments section of 
the solicitation and resulting contract (see FAR 12.303).

                    Commercial Sales Practices Format

Name of Offeror _____ SIN(s) ___

    Note: Please refer to Clause 552.212-70, Preparation of Offer 
(Multiple Award Schedule), for additional information concerning your 
offer. Provide the following information for each SIN (or group of SINs 
or SubSIN for which information is the same).

    (1) Provide the dollar value of sales to the general public at or 
based on an established catalog or market price during the previous 12-
month period or the offerors last fiscal year: $____. State beginning 
and ending of the 12 month period. Beginning ____ ending ____. In the 
event that a dollar value is not an appropriate measure of the sales, 
provide and describe your own measure of the sales of the item(s).
    (2) Show your total projected annual sales to the Government under 
this contract for the contract term, excluding options, for each SIN 
offered. If you currently hold a Federal Supply Schedule contract for 
the SIN the total projected annual sales should be based on your 
mostrecent 12 months of sales under that contract.

SIN ______  $______
SIN ______  $______
SIN ______  $______

    (3) Based on your written discounting policies (standard commercial 
sales practices in the event you do not have written discounting 
policies), are the discounts and any concessions which you offer the 
Government equal to or better than your best price (discount and 
concessions in any combination) offered to any customer acquiring the 
same items regardless of quantity or terms and conditions? YES__ NO__ 
(See definition of ``concession'' and ``discount'' in 552.212-70.)
    (4)(a) Based on your written discounting policies (standard 
commercial sales practices in the event you do not have written 
discounting policies), provide information as requested for each SIN (or 
group of SINs for which the information is the same) in accordance with 
the instructions at Figure 515.4, which is provided in this solicitation 
for your convenience. The information should be provided in the chart 
below or in an equivalent format developed by the offeror. Rows should 
be added to accommodate as many customers as required.

----------------------------------------------------------------------------------------------------------------
                                                      Column 3 Quantity/                           Column 5
        Column 1 Customer          Column 2 Discount        Volume         Column 4 FOB Term      Concessions
----------------------------------------------------------------------------------------------------------------
 
 
 
----------------------------------------------------------------------------------------------------------------

    (b) Do any deviations from your written policies or standard 
commercial sales practices disclosed in the above chart ever result in 
better discounts (lower prices) or concessions than indicated? YES-- 
NO--. If YES, explain deviations in accordance with the instructions at 
Figure 515.4, which is provided in this solicitation for your 
convenience.
    (5) If you are a dealer/reseller without significant sales to the 
general public, you should provide manufacturers' information required 
by paragraphs (1) through (4) above for each item/SINoffered, if the 
manufacturer's sales under any resulting contract are expected to exceed 
$500,000. You must also obtain written authorization from the 
manufacturer(s) for Government access, at any time before award or 
before agreeing to a modification, to the manufacturer's sales records 
for the purpose of verifying the information submitted by the 
manufacturer. The information is required in order to enable the 
Government to make a determination that the offered price is fair and 
reasonable. To expedite the review and processing of offers, you should 
advise the manufacturer(s) of this requirement. The contracting officer 
may require the information be submitted on electronic media with 
commercially available spreadsheet(s). The information may be provided 
by the manufacturer directly to the Government. If the manufacturer's 
item(s) is being offered by multiple dealers/resellers, only one copy of 
the requested information should be submitted to the Government. In

[[Page 173]]

addition, you must submit the following information along with a listing 
of contact information regarding each of the manufacturers whose 
products and/or services are included in the offer (include the 
manufacturer's name, address, the manufacturer's contact point, 
telephone number, and FAX number) for each model offered by SIN:
    (a) Manufacturer's Name.
    (b) Manufacturer's Part Number.
    (c) Dealer's/Reseller's Part Number.
    (d) Product Description.
    (e) Manufacturer's List Price.
    (f) Dealer's/Reseller's percentage discount from list price or net 
prices.

                             (End of format)

    (c) When the contract contains the basic clause 552.238-74 
Industrial Funding Fee and Sales Reporting, include the instructions for 
completing the commercial sales practices format in Figure 515.4-2 in 
solicitations issued under the MAS program.

    Figure 515.4--Instructions for Commercial Sales Practices Format

    If you responded ``yes'' to question (3), on the Commercial Sales 
Practices Format in paragraph (b) of this section, complete the chart in 
question (4)(a) for the customer(s) who receive your best discount. If 
you responded ``no'', complete the chart in question (4)(a) showing your 
written policies or standard sales practices for all customers or 
customer categories to whom you sell at a price (discounts and 
concessions in combination) that is equal to or better than the price(s) 
offered to the Government under this solicitation or with which the 
Offeror has a current agreement to sell at a discount which equals or 
exceeds the discount(s) offered under this solicitation. Such agreement 
shall be in effect on the date the offer is submitted or contain an 
effective date during the proposed multiple award schedule contract 
period. If your offer is lower than your price to other customers or 
customers categories, you will be aligned with the customer or category 
of customer that receives your best price for purposes of the Price 
Reductions clause at 552.238-75. The Government expects you to provide 
information required by the format in accordance with these instructions 
that is, to the best of your knowledge and belief, current, accurate, 
and complete as of 14 calendar days prior to its submission. You must 
also disclose any changes in your price list(s), discounts and/or 
discounting policies which occur after the offer is submitted, but 
before the close of negotiations. If your discount practices vary by 
model or product line, the discount information should be by model or 
product line as appropriate. You may limit the number of models or 
product lines reported to those which exceed 75% of actual historical 
Government sales (commercial sales may be substituted if Government 
sales are unavailable) value of the special item number (SIN).

   Column 1--Identify the Applicable Customer or Category of Customer

    A ``customer'' is any entity, except the Federal Government, which 
acquires supplies or services from the Offeror. The term customer 
includes, but is not limited to original equipment manufacturers, value 
added resellers, state and local Governments, distributors, educational 
institutions (an elementary, junior high, or degree granting school 
which maintains a regular faculty and established curriculum and an 
organized body of students), dealers, national accounts, and end users. 
In any instance where the Offeror is asked to disclose information for a 
customer, the Offeror may disclose information by category of customer 
if the Offeror's discount policies or practices are the same for all 
customers in the category. (Use a separate line for each customer or 
category of customer.)

                     Column 2--Identify the Discount

    The term ``discount'' is as defined in solicitation clause 552.212-
70, Preparation of Offer (Multiple Award Schedule). Indicate the best 
discount (based on your written discounting policies or standard 
commercial discounting practices if you do not have written discounting 
policies) at which you sell to the customer or category of customer 
identified in column 1, without regard to quantity; terms and conditions 
of the agreements under which the discounts are given; and whether the 
agreements are written or oral. Net prices or discounts off of other 
price lists should be expressed as percentage discounts from the price 
list which is the basis of your offer. If the discount disclosed is a 
combination of various discounts (prompt payment, quantity, etc.), the 
percentage should be broken out for each type of discount. If the price 
lists which are the basis of the discounts given to the customers 
identified in the chart are different than the price list submitted upon 
which your offer is based, identify the type or title and date of each 
price list. The contracting officer may require submission of these 
price lists. To expedite evaluation, offerors may provide these price 
lists at the time of submission.

           Column 3--Identify the Quantity or Volume of Sales

    Insert the minimum quantity or sales volume which the identified 
customer or category of customer must either purchase/order, per order 
or within a specified period, to earn a discount indicate the time 
period.

[[Page 174]]

  Column 4--Indicate the FOB Delivery Term for Each Identified Customer

    See FAR 47.3 for an explanation of FOB delivery terms.

  Column 5--Indicate Concessions Regardless of Quantity Granted to the 
               Identified Customer or Category of Customer

    Concessions are defined in solicitation clause 552.12-70, 
Preparation of Offers (Multiple Award Schedule). If the space provided 
is inadequate, the disclosure should be made on a separate sheet by 
reference.
    If you respond ``yes'' to question 4(b) in the Commercial Sales 
Practices Format, provide an explanation of the circumstances under 
which you deviate from your written policies or standard commercial 
sales practices disclosed in the chart on the Commercial Sales Practices 
Format and explain how often they occur. Your explanation should include 
a discussion of situations that lead to deviations from standard 
practice, an explanation of how often they occur, and the controls you 
employ to assure the integrity of your pricing. Examples of typical 
deviations may include, but are not limited to, one time goodwill 
discounts to charity organizations or to compensate an otherwise 
disgruntled customer; a limited sale of obsolete or damaged goods; the 
sale of sample goods to a new customer, or the sales of prototype goods 
for testing purposes.
    If deviations from your written policies or standard commercial 
sales practices disclosed in the chart on the Commercial Sales Practices 
Format are so significant and/or frequent that the Contracting Officer 
cannot establish whether the price(s) offered is fair and reasonable, 
then you may be asked to provide additional information. The Contracting 
Officer may ask for information to demonstrate that you have made 
substantial sales of the item(s) in the commercial market consistent 
with the information reflected on the chart on the Commercial Sales 
Practices Format, a description of the conditions surrounding those 
sales deviations, or other information that may be necessary in order 
for the Contracting Officer to determine whether your offered price(s) 
is fair and reasonable. In cases where additional information is 
requested the Contracting Officer will target the request in order to 
limit the submission of data to that needed to establish the 
reasonableness of the offered price.

                             (End of figure)

    (d) When the contract contains the basic clause 552.238-74 
Industrial Funding Fee and Sales Reporting, insert the clause at 
552.215-72, Price Adjustment--Failure to Provide Accurate Information, 
in solicitations and contracts under the MAS program.
    (e) Use Alternate IV of FAR 52.215-21, Requirements for Cost or 
Pricing Data or Information Other Than Cost or Pricing Data--
Modifications, to provide for submission of information other than cost 
or pricing data for MAS contracts. To provide for uniformity in requests 
under the MAS program, insert the following in paragraph (b) of the 
clause:
    (1) Information required by the clause at 552.238-81, Modifications 
(Multiple Award Schedule).
    (2) Any additional supporting information requested by the 
Contracting Officer. The Contracting Officer may require additional 
supporting information, but only to the extent necessary to determine 
whether the price(s) offered is fair and reasonable.
    (3) By submitting a request for modification, the Contractor grants 
the Contracting Officer or an authorized representative the right to 
examine, at any time before agreeing to a modification, books, record, 
documents, papers, and other directly pertinent records to verify the 
pricing, sales and other data related to the supplies or services 
proposed in order to determine the reasonableness of price(s). Access 
does not extent to Contractor's cost or profit information or other data 
related solely to the Contractor's determination of the prices to be 
offered in the catalog or marketplace.

[64 FR 37214, July 9, 1999, as amended at 65 FR 11247, Mar. 2, 2000; 81 
FR 41136, June 23, 2016]



PART 516_TYPES OF CONTRACTS--Table of Contents



                   Subpart 516.2_Fixed Price Contracts

Sec.
516.203-4  Contract clauses.

               Subpart 516.5_Indefinite-Delivery Contracts

516.506  Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37218, July 9, 1999, unless otherwise noted.



                   Subpart 516.2_Fixed Price Contracts



516.203-4  Contract clauses.

    (a) Special Order Program Contracts. In multiyear solicitations and 
contracts, after making the determination required by FAR 16.203-3, use 
552.216-71, Economic Price Adjustment Special Order Program Contracts, 
or a clause

[[Page 175]]

prepared as authorized in paragraph (a)(3) of this subsection.
    (1) If the contract includes one or more options to extend the term 
of the contract, use the clause with its Alternate I or a clause 
substantially the same as 552.216-71 with its Alternate I suitably 
modified.
    (2) In a contract requiring a minimum adjustment before the price 
adjustment mechanism is effectuated, use the basic clause with Alternate 
II or with Alternate I and Alternate II.
    (3) If the Producer Price Index is not an appropriate indicator for 
price adjustment, modify the clause to use an alternate indicator for 
adjusting prices. Similarly, if other aspects of 552.216-71 are not 
appropriate, use an alternate clause following established procedures.
    (b) Adjustments based on cost indexes of labor or material. (1) If 
the contracting officer decides to provide for adjustments based on cost 
indexes of labor or material, prepare a clause that defines each of the 
following elements:
    (i) The type of labor and/or material subject to adjustment;
    (ii) The labor rates, including any fringe benefits and/or unit 
prices of materials that may be increased or decreased;
    (iii) The index(es) that will be used to measure changes in price 
levels and the base period or reference point from which changes will be 
measured; and
    (iv) The period during which the price(s) will be subject to 
adjustment.
    (2) The contracting director must approve use of this clause.

[75 FR 41095, July 15, 2010]



               Subpart 516.5_Indefinite-Delivery Contracts



516.506  Solicitation provisions and contract clauses.

    (a) In solicitations and contracts for Special Order Program items, 
when the contract authorizes FAS and other activities to issue delivery 
or task orders, insert the clause at 552.216-72, Placement of Orders. If 
only FAS will issue delivery or task orders, insert the clause with its 
Alternate I.
    (b) In solicitations and contracts for multiple-award contracts 
where GSA is the only ordering activity, or for GSA orders placed 
against a GSA multiple-award contract, insert clause 552.216-74, GSA 
Task-Order and Delivery-Order Ombudsman. This clause shall not be 
included in GSA-awarded contracts available for multiple agency use 
(i.e., Governmentwide Acquisition Contracts, Multi-Agency Contracts); 
instead, see paragraph (d) of this section.
    (c) If the clause at 552.216-72 is prescribed, insert the provision 
at 552.216-73, Ordering Information, in solicitations for Special Order 
Program items and in other FAS Program solicitations.
    (d) Insert clause 552.216-76, Ordering Agency Task-Order and 
Delivery-Order Ombudsman in all GSA-awarded contracts available for 
multiple agency use (i.e., Governmentwide Acquisition Contracts, Multi-
Agency Contracts).
    (e) The Contracting Officer may insert clause 552.216-75 in 
solicitations and GSA-awarded IDIQ contracts, not including Federal 
Supply Schedule (FSS) contracts. This clause should be included in all 
GSA-awarded Governmentwide acquisition contracts and multi-agency 
contracts. See 538.273 for clauses applicable to FSS contracts.

[75 FR 41096, July 15, 2010, as amended at 81 FR 41136, June 23, 2016; 
82 FR 2250, Jan. 9, 2017]



PART 517_SPECIAL CONTRACTING METHODS--Table of Contents



                  Subpart 517.1_Multi-year Contracting

Sec.
517.109  Contract clauses.

                          Subpart 517.2_Options

517.200  Scope of subpart.
517.202  Use of options.
517.203  [Reserved]
517.207  Exercise of options.
517.208  Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37218, July 9, 1999, unless otherwise noted.

[[Page 176]]



                  Subpart 517.1_Multi-year Contracting



517.109  Contract clauses.

    Use of FAR 52.217-2, Cancellation Under Multi-year Contracts, is 
optional in multi-year contracts authorized by 40 U.S.C. 581(c)6 for 
maintenance and repair of fixed equipment in federally-owned buildings 
and services and 40 U.S.C. 501(b)(1)(B) for public utility services.

[64 FR 37218, July 9, 1999, as amended at 81 FR 36422, June 6, 2016]



                          Subpart 517.2_Options



517.200  Scope of subpart.

    This subpart applies to all GSA contracts for supplies and services, 
including:
    (a) Services involving construction, alteration, or repair 
(including dredging, excavating, and painting) of buildings, bridges, 
roads, or other kinds of real property.
    (b) Architect-engineer services.

[81 FR 36422, June 6, 2016]



517.202  Use of options.

    (a) Supplies or services. (1) Options may be used when they meet one 
or more of the following objectives:
    (i) Reduce procurement lead time and associated costs.
    (ii) Ensure continuity of contract support.
    (iii) Improve overall contractor performance.
    (iv) Facilitate longer term contractual relationships with those 
contractors that continually meet or exceed quality performance 
expectations.
    (2) An option is normally in the Government's interest in the 
following circumstances:
    (i) There is an anticipated need for additional supplies or services 
during the contract term.
    (ii) When there is both a need for additional supplies or services 
beyond the basic contract period and the use of multi-year contracting 
authority is inappropriate.
    (iii) There is a need for continuity of supply or service support.
    (3) An option shall not be used if the market price is likely to 
change substantially and an economic price adjustment clause 
inadequately protects the Government's interest.
    (b) Construction. For limitations on the use of options, see 536.213 
and 536.270.

[64 FR 37218, July 9, 1999, as amended at 81 FR 36422, June 6, 2016]



517.203  [Reserved]



517.207  Exercise of options.

    In addition to the requirements of FAR 17.207, the Contracting 
Officer must also:
    (a) Document the contract file with the rationale for an extended 
contractual relationship if the contractor's performance rating under 
the contract is less than satisfactory.
    (b) Determine that the option price is fair and reasonable.

[81 FR 36423, June 6, 2016]



517.208  Solicitation provisions and contract clauses.

    (a) For solicitations under the Federal Acquisition Service's or 
Special Order Program, insert a provision substantially the same as the 
provision at 552.217-70, Evaluation of Options, if both of the following 
conditions apply:
    (1) The solicitation contains an option to extend the term of the 
contract.
    (2) The contract will be fixed price and contain an economic price 
adjustment clause.
    (b) Insert the provision at 552.217-71, Notice Regarding Option(s), 
or a similar provision, in solicitations that include an option for 
increased quantities of supplies or services or an option to extend.

[64 FR 37218, July 9, 1999, as amended at 81 FR 36422, June 6, 2016]

[[Page 177]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 519_SMALL BUSINESS PROGRAMS--Table of Contents



               Subpart 519.5_Set-Asides for Small Business

Sec.
519.508  Soliciation provisions for contract clauses.

         Subpart 519.7_The Small Business Subcontracting Program

519.708  Contract clauses.
519.708-70  Solicitation provisions.

 Subpart 519.8_Contracting With the Small Business Administration (The 
                              8(a) Program)

519.870  Direct 8(a) contracting.
519.870-8  Contract clauses.

    Subpart 519.12_Small Disadvantaged Business Participation Program

519.1202  Evaluation factor or subfactor.
519.1202-2  Applicability.

                Subpart 519.70_GSA Mentor-Protege Program

519.7001   Scope of subpart.
519.7002   Definitions.
519.7003   General policy.
519.7004   Incentives for prime contractors.
519.7005   Measurement of program success.
519.7006   Mentor firms.
519.7007   Protege firms.
519.7008   Selection of protege firms.
519.7009   Application process.
519.7010   Agreement contents.
519.7011   Application review.
519.7012   Developmental assistance.
519.7013   Obligation.
519.7014   Internal controls.
519.7015   Reports.
519.7016   Program review.
519.7017   Contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37219, July 9, 1999, unless otherwise noted.



               Subpart 519.5_Set-Asides for Small Business



519.508  Solicitation provisions for contract clauses.

    Insert 552.219-70, Allocation of Orders--Partially Set-Asides Items, 
in solicitations and requirements type supply contracts that are 
partially set aside for small business.



         Subpart 519.7_The Small Business Subcontracting Program



519.708  Contract clauses.



519.708-70  Solicitation provisions.

    Insert the following provisions as directed:
    (a) 552.219-71, Notice to Offerors of Subcontracting Plan 
Requirements, on the cover page of solicitations containing the clause 
at FAR 52.219-9, Small Business Subcontracting Plan.
    (b) 552.219-72, Preparation, Submission, and Negotiations of 
Subcontracting Plans, in solicitations requiring submission of the 
subcontracting plan with initial offers.
    (c) 552.219-73, Goals for Subcontracting Plan as follows:
    (1) Use the basic provision in sealed bid solicitations containing 
FAR 52.219-9 if you are able to establish realistic target goals.
    (2) Use Alternate I in:
    (i) sealed bid solicitations if you cannot establish target goals.
    (ii) Negotiated solicitations that include FAR 52.219-9, but do not 
include 552.219-72.



 Subpart 519.8_Contracting With the Small Business Administration (The 
                              8(a) Program)



519.870  Direct 8(a) contracting.



519.870-8  Contract clauses.

    (a) Insert the following clauses in solicitations, contracts, and 
orders issued under the MOU:
    (1) Insert the clause at 552.219-74, Section 8(a) Direct Award.
    (2) Insert the clause at FAR 52.219-14, Limitation on 
Subcontracting.
    (3) Insert the clause at FAR 52.219-18, Notification of Competition 
Limited to Eligible 8(a) Concerns. Substitute the following paragraph 
for paragraph (c) of the clause. Add the word ``Deviation'' at the end 
of the clause title.


[[Page 178]]


    (c) Any award resulting from this solicitation will be made directly 
by the Contracting Officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.

    (b) Do not use the clauses at FAR 52.219-11, Special 8(a) Contract 
Conditions, FAR 52.219-12, Special 8(a) Subcontract Conditions, or FAR 
52.219-17, Section 8(a) Award.

[64 FR 37219, July 9, 1999, as amended at 77 FR 10666, Feb. 23, 2012]



    Subpart 519.12_Small Disadvantaged Business Participation Program



519.1202  Evaluation factor or subfactor.



519.1202-2  Applicability.

    In addition to the exception in FAR 19.1202-2, do not evaluate the 
extent of participation of SDB concerns in performance of multiple award 
schedule contracts when all fair and reasonable offers from responsible 
sources are accepted.



                Subpart 519.70_GSA Mentor-Protege Program

    Source: 74 FR 41063, Aug. 14, 2009, unless otherwise noted.



519.7001  Scope of subpart.

    The GSA Mentor-Protege Program is designed to encourage and motivate 
GSA prime contractors to assist small businesses concerns, small 
disadvantaged businesses concerns, women-owned small businesses 
concerns, veteran-owned small business concerns, service-disabled 
veteran-owned small businesses concerns, and HUBZone small businesses 
concerns, and enhance their capability of performing successfully on GSA 
contracts and subcontracts, foster the establishment of long-term 
business relationships between these small business entities and GSA 
prime contractors, and increase the overall number of small business 
entities that receive GSA contract and subcontract awards.



519.7002  Definitions.

    The definitions of small business concern, small disadvantaged 
business concern, HUBZone small business concern, women-owned small 
business concern, veteran-owned small business concern, and service-
disabled veteran-owned small business concern are the same as found in 
FAR 2.101. Also see 13 CFR 121, 124, 125 and 126.
    (a) Mentor as used in the GSA Mentor-Protege Program, is a prime 
contractor that elects, on a specific GSA contract, to promote and 
develop small business subcontractors by providing developmental 
assistance designed to enhance the business success of the protege.
    (b) Mentor-Protege Program Manager means an employee in the Office 
of Small Business Utilization (OSBU) (E) designated by the Associate 
Administrator of OSBU to manage the Mentor-Protege Program.
    (c) Protege as used in the GSA Mentor-Protege Program is a small 
business concern that is the recipient of developmental assistance 
pursuant to a mentor-protege arrangement on a specific GSA contract.



519.7003  General policy.

    (a) A large business prime contractor that meets the requirements at 
section 519.7006, and is approved as a mentor firm by the Mentor-Protege 
Program Manager, may enter into an Agreement with a small business 
concern, small disadvantaged business concern, women-owned small 
business concern, veteran-owned small business concern, service-disabled 
veteran-owned small business concern or HUBZone small business concern 
that meets the requirements for being a protege (see 519.7007) in order 
to provide appropriate developmental assistance to enhance the 
capabilities of the protege to perform successfully as a subcontractor 
and supplier.
    (b) A small business prime contractor that is capable of providing 
developmental assistance to proteges, may also be approved as a mentor.
    (c) An active mentor-protege arrangement requires the protege to 
either be a current or newly selected subcontractor under the mentor's 
prime contract with GSA.

[[Page 179]]

    (d) A small business concern's status as a protege under a GSA 
contract shall not have an effect on its ability to seek other prime 
contracts or subcontracts.
    (e) Potential Mentors may submit an application for admittance to 
the Mentor-Protege Program at any time as long as the requirements at 
section 519.7006 are met.
    (f) The determination of affiliation is a function of the SBA.



519.7004  Incentives for prime contractors.

    (a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), the GSA is 
authorized to provide appropriate incentives to prime contractors in 
order to encourage subcontracting opportunities for small business 
concerns consistent with the efficient and economical performance of the 
contract. This authority is limited to negotiated procurements, 
including the GSA Multiple Award Schedule contracts and the GSA 
Governmentwide Acquisition Contracts. It does not include orders under 
any GSA contracts.
    (b) Costs incurred by a mentor to provide developmental assistance, 
as described in section 519.7012 to fulfill the terms of their 
agreement(s) with a protege firm(s), are not reimbursable as a direct 
cost under a GSA contract. If GSA is the mentor's responsible audit 
agency under FAR 42.703-1, GSA will consider these costs in determining 
indirect cost rates. If GSA is not the responsible audit agency, mentors 
are encouraged to enter into an advance agreement with their responsible 
audit agency on the treatment of such costs when determining indirect 
cost rates.
    (c) In addition to paragraph (b) of this section, contracting 
officers may give mentors evaluation credit during the source selection 
process for subcontracts awarded under their subcontracting plans 
pursuant to their Mentor-Protege Agreements. (See FAR 15.101-1). 
Therefore:
    (1) Contracting officers may evaluate proposals with subcontracting 
plans containing Mentor-Protege Agreements more favorably than proposals 
with subcontracting plans that do not include Mentor-Protege Agreements; 
and
    (2) Contracting officers may assess the prime contractor's 
compliance with the subcontracting plans submitted in previous contracts 
as a factor in evaluating past performance under certain circumstances 
(see FAR 15.304(c)(3) and 15.305(a)(2)(v)) and determining contractor 
responsibility FAR section 19.705-5(a)(1).
    (d) OSBU Mentoring Award. A non-monetary award may be presented 
annually to the mentoring firm providing the most effective 
developmental support of a protege. The Mentor-Protege Program Manager 
will recommend an award winner to the Administrator of GSA.
    (e) OSBU Mentor-Protege Annual Conference. At the conclusion of each 
year in the Mentor-Protege Program, mentor firms will be invited to 
brief contracting officers, program leaders, office directors, and other 
guests on their experience and progress under the Program. Participation 
is voluntary.



519.7005  Measurement of program success.

    The overall success of the GSA Mentor-Protege Program encompassing 
all participating mentors and proteges will be measured by the extent to 
which it results in:
    (a) An increase in the number, dollar value, and percentage of 
subcontracts awarded to proteges by mentor firms under GSA contracts 
since the date of entry into the Program. The baseline that demonstrates 
an increase is determined by comparing the number and total dollar 
amount of subcontract awards made to the identified protege firm(s) 
during the two preceding fiscal years (if any) that are listed in 
application;
    (b) An increase in the number and dollar value of contract and 
subcontract awards (including percentage of subcontract awards) to 
protege firms since the date of the protege's entry into the Program 
(under GSA contracts and contracts awarded by other Federal agencies);
    (c) An increase in the number and dollar value of subcontracts 
awarded to a protege firm by its mentor firm; and

[[Page 180]]

    (d) An increase in subcontracting with protege firms in industry 
categories where they have not traditionally participated within the 
mentor firm's activity (i.e., the protege is expanding its field of 
expertise or is increasing its opportunities in areas where it has not 
traditionally performed).
    (e) Assessments of the semi-annual reports submitted by the mentors 
and ``Lessons Learned'' evaluation submitted by the mentors and proteges 
to the GSA Mentor-Protege Program Manager.



519.7006  Mentor firms.

    (a) Mentors must be:
    (1) A large business prime contractor that is currently performing 
under an approved subcontracting plan as required by FAR 19.7 - Small 
business mentors are exempted; or
    (2) A small business prime contractor that can provide developmental 
assistance to enhance the capabilities of proteges to perform as 
contractors, subcontractors, and suppliers;
    (b) Must be eligible (not listed as an exclusion in the System for 
Award Management (SAM)) for U.S. Government contracts and not excluded 
from the Mentor-Protege Program under section 519.7014(b);
    (c) Must be able to provide developmental assistance that will 
enhance the ability of proteges to perform as contractors and 
subcontractors; and
    (d) Must provide semi-annual reports detailing the assistance 
provided and the cost incurred in supporting proteges.

[74 FR 41063, Aug. 14, 2009, as amended at 81 FR 1532, Jan. 13, 2016]



519.7007  Protege firms.

    (a) For selection as a protege, a firm must be:
    (1) A small business concern, small disadvantaged business concern, 
veteran-owned small business concern, service-disabled veteran-owned 
small business concern, HUBZone small business concern, or women-owned 
small business concern;
    (2) Small for the NAICS code the prime contractor/mentor assigns to 
the subcontract; and
    (3) Eligible (not listed as an exclusion in the (SAM)) for U.S. 
Government contracts and not excluded from the Mentor-Protege Program 
under section 519.7014(b).
    (b) A protege firm may self-represent to a mentor firm that it meets 
the requirements set forth in paragraph (a) of this section. Mentors may 
check the SAM at www.sam.gov to verify that the self-representation of 
the potential protege meets the specified small business and 
socioeconomic category eligibility requirements (see FAR 19.703(b) and 
(d)). HUBZone and small disadvantaged business status eligibility and 
documentation requirements are determined according to 13 CFR parts 124 
and 126.
    (c) A protege firm must not have another formal, active mentor-
protege relationship under GSA's Mentor-Protege Program but may have an 
active mentor-protege relationship under another agency's program.

[74 FR 41063, Aug. 14, 2009, as amended at 81 FR 1532, Jan. 13, 2016]



519.7008  Selection of protege firms.

    (a) Mentor firms will be solely responsible for selecting protege 
firms. Mentors are encouraged to select from a broad base of small 
business concerns including small disadvantaged business concerns, 
women-owned small business concerns, veteran-owned small business 
concerns, service-disabled veteran-owned small business concerns, and 
HUBZone small business concerns. A protege must be either a current 
subcontractor or a newly selected subcontractor for the prime 
contractor's GSA contract.
    (b) Mentor firms may have more than one protege. GSA reserves the 
right to limit the number of proteges participating under each mentor 
firm.
    (c) The selection of protege firms by mentor firms is not 
protestable, except for a protest regarding the size or eligibility 
status of an entity selected by a mentor to be a protege. Such protests 
shall be handled in accordance with FAR 19.703(b). The contracting 
officer shall notify the Office of Small Business Utilization (OSBU) of 
the protest.

[[Page 181]]



519.7009  Application process.

    (a) Prime contractors interested in becoming a mentor firm must 
apply in writing by submitting the GSA Form 3695 to the GSA Mentor-
Protege Program Manager, at GSA Office of Small Business Utilization 
(E), Washington, DC 20405. The Application shall include the Mentor-
Protege Agreement and will be evaluated for approval based on the extent 
to which the company plans to provide developmental assistance.
    (b) The application must contain:
    (1) A statement that the mentor firm is currently performing under 
at least one active approved subcontracting plan (small business 
exempted) and the firm is eligible, as of the date of Application, for 
the award of Federal contracts;
    (2) The number of proposed protege arrangements;
    (3) Data on all current GSA contracts, and subcontracts including 
the contract/subcontract number(s), type of contract(s), period of 
performance (including options), contract/subcontract value(s) including 
options, technical program effort(s) (program title), name of GSA 
Project Manager or Contracting Officer's Representative (including 
contact information), name of contracting officer(s) and contact 
information, and awarding GSA installation;
    (4) Data on total number and dollar value of subcontracts awarded 
under GSA prime contracts within the past 2 years and the number and 
dollar value of such subcontracts awarded to entities who are proposed 
proteges;
    (5) Information on the proposed types of developmental assistance. 
For each proposed mentor-protege relationship include information on the 
company's ability to provide developmental assistance to the identified 
protege firm and how that assistance will potentially increase 
subcontracting opportunities for the protege firm, including 
subcontracting opportunities in industry categories where these entities 
are not dominant in the company's current subcontractor base; and
    (6) Agreement information as listed in 519.7010.



519.7010  Agreement contents.

    The contents of the Agreement must contain:
    (a) Names, addresses (including facsimile, e-mail, and homepage) and 
telephone numbers of mentor and protege firms and the name, telephone 
number, and position title within both firms of the person who will 
oversee the Agreement.
    (b) An eligibility statement from the protege stating that it is a 
small business, its primary NAICS code, and when applicable the type of 
small business (small disadvantaged business concern, HUBZone small 
business concern, women-owned small business concern, veteran-owned 
small business concern, or service-disabled veteran-owned small business 
concern).
    (c) A description of the type of developmental assistance that will 
be provided by the mentor firm to the protege firm (see 519.7012).
    (d) Milestones for providing the identified developmental 
assistance.
    (e) Factors to assess the protege firm's developmental progress 
under the Program.
    (f) The anticipated dollar value and type of subcontracts that may 
be awarded to the protege firm consistent with the extent and nature of 
mentor firm's business, and the period of time over which they may be 
awarded.
    (g) Program participation term: State the period of time over which 
the developmental assistance will be performed.
    (h) Mentor termination procedures: Describe the procedures 
applicable to the mentor firm when notifying the Protege firm, in 
writing and at least 30 days in advance, of the mentor firm's intent to 
voluntarily withdraw its participation in the Program, or to terminate 
the Agreement.
    (i) Protege termination procedures: Describe the procedures 
applicable to the protege firm when notifying the mentor firm, in 
writing at least 30 days in advance, of the protege firm's intent to 
terminate the Mentor-Protege Agreement.
    (j) Plan for accomplishing contract work should the Mentor-Protege 
Agreement be terminated or a party

[[Page 182]]

excluded under 519.7014(b). The mentor's prime contract with GSA 
continues even if the Mentor-Protege Agreement or the Mentor-Protege 
Program is discontinued.
    (k) The protege must agree to provide input into the mentor firm's 
semi-annual reports (see 519.7015). The protege must submit a ``Lessons 
Learned'' evaluation along with the mentor firm at the conclusion of the 
Mentor-Protege agreement.
    (l) Other terms and conditions as specified by the Mentor-Protege 
Manager on a case-by-case basis.



519.7011  Application review.

    (a) The Mentor-Protege Program Manager will review the information 
specified in section 519.7009(b) and 519.7010 to establish the Mentor's 
and Protege's eligibility and to ensure all necessary information is 
included. If the application relates to a specific contract, then the 
Mentor-Protege Program Manager will consult with the applicable 
contracting officer regarding the adequacy of the proposed Agreement, as 
appropriate. The Mentor-Protege Program Manager will complete its review 
no later than 30 days after receipt of the application. The contracting 
officer must provide feedback to the Program Manager no later than 10 
days after receipt of the application.
    (b) After the Mentor-Protege Program Manager completes its review 
and provides written approval, the Mentor may execute the Agreement and 
implement the developmental assistance as provided under the Agreement. 
The Mentor-Protege Program Manager will provide a copy of the Mentor-
Protege Agreement to the GSA contracting officer for any GSA contracts 
affected by the Agreement.
    (c) The Agreement defines the relationship between the Mentor and 
the Protege firms only. The Agreement itself does not create any privity 
of contract or contractual relationship between the Mentor and GSA nor 
the Protege and GSA.
    (d) If the Agreement is disapproved, the Mentor may provide 
additional information for reconsideration. The Mentor-Protege Program 
Manager will complete the review of any supplemental information no 
later than 30 days after its receipt. Upon finding deficiencies that GSA 
considers correctable, the Mentor-Protege Program Manager will notify 
the Mentor and Protege and request correction of the deficiencies to be 
provided within 15 days.



519.7012  Developmental assistance.

    The forms of developmental assistance a mentor can provide to a 
protege include:
    (a) Management guidance relating to--
    (1) Financial management;
    (2) Organizational management;
    (3) Overall business management/planning; and
    (4) Business development.
    (b) Engineering and other technical assistance.
    (c) Loans.
    (d) Rent-free use of facilities and/or equipment.
    (e) Temporary assignment of personnel to the protege for purpose of 
training.
    (f) Any other types of developmental assistance approved by the GSA 
Mentor-Protege Program Manager.



519.7013  Obligation.

    (a) The mentor or protege may terminate the Agreement in accordance 
with 519.7010. The mentor will notify the Mentor-Protege Program Manager 
and the contracting officer, in writing, at least 30 days in advance of 
the mentor firm's intent to voluntarily withdraw from the Program or to 
terminate the Agreement, or upon receipt of a protege's notice to 
withdraw from the Program.
    (b) Mentor and protege firms will submit a ``Lessons Learned'' 
evaluation to the GSA Mentor-Protege Program Manager at the conclusion 
or termination of each Mentor-Protege Agreement or withdrawal from the 
Mentor-Protege program.



519.7014  Internal controls.

    (a) The GSA Mentor-Protege Program Manager will manage the Program. 
Internal controls will be established by the Mentor-Protege Program 
Manager to achieve the stated Program objectives (by serving as checks 
and

[[Page 183]]

balances against undesired actions or consequences) such as:
    (1) Reviewing and evaluating mentor Applications for realism, 
validity and accuracy of provided information;
    (2) Monitoring each Mentor-Protege Agreement by reviewing semi-
annual progress reports submitted by mentors and proteges on protege 
development to measure protege progress against the master plan 
contained in the approved Agreement;
    (3) Monitoring milestones in the Agreement (see 519.7010); and
    (4) Evaluating ``Lessons Learned'' submitted by the Mentor and the 
Protege as required by section 519.7013 to improve the GSA Mentor-
Protege Program.
    (b)(1) GSA has the authority to exclude mentor or protege firms from 
participating in the GSA Program.
    (2) GSA may rescind approval of an existing Mentor-Protege Agreement 
if it determines that such action is in GSA's best interest. The 
rescission shall be in writing and sent to the Mentor and protege after 
approval by the Director of OSBU. Rescission of an Agreement does not 
change the terms of any subcontract between the Mentor and the Protege.
    (3) Exclusion from the Program does not constitute a termination of 
the subcontract between the mentor and the protege.



519.7015  Reports.

    (a) Semi-annual reports shall be submitted by the mentor to the GSA 
Mentor-Protege Program manager to include information as outlined in 
section 552.219-76(c).
    (b) Proteges must agree to provide input into the mentor firm's 
semi-annual reports detailing the assistance provided and goals achieved 
since agreement inception. However, for cost reimbursable contracts, 
costs associated with the preparation of these reports are unallowable 
costs under these Government contracts and will not be reimbursed by the 
Government.
    (c) The GSA contracting officer, or if applicable the technical 
program manager, shall include an assessment of the prime contractor's 
(mentor's) performance in the Mentor-Protege Program in a quarterly 
``Strengths and Weaknesses'' evaluation report. A copy of this 
assessment will be provided to the Mentor-Protege Program Manager and to 
the mentor and protege.



519.7016  Program review.

    At the conclusion of each year in the Mentor-Protege Program 
(anniversary date of the Mentor-Protege Program), the prime contractor 
and protege, as appropriate, will formally brief the GSA Mentor-Protege 
Program Manager, the technical program manager, and the contracting 
officer regarding Mentor-Protege Program accomplishments pertaining to 
the approved Agreement.



519.7017  Contract clauses.

    (a) The contracting officer shall insert the clause at 552.219-75, 
GSA Mentor-Protege Program, in all unrestricted solicitations (not set 
aside) and contracts that exceed the simplified acquisition threshold 
that offer subcontracting opportunities or in the case of a small 
business, that can offer developmental assistance to a small business 
protege.
    (b) The contracting officer shall insert the clause at 552.219-76, 
Mentor Requirements and Evaluation, in contracts anticipated to exceed 
the simplified acquisition threshold where the prime contractor has 
signed a Mentor-Protege Agreement with GSA.



PART 522_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
--Table of Contents



                   Subpart 522.1_Basic Labor Policies

Sec.
522.101  Labor relations.
522.101-1  General.
522.103-5  Contract clauses.

   Subpart 522.4_Labor Standards for Contracts Involving Construction

522.406  Administration and enforcement.
522.406-6  Payrolls and statements.

               Subpart 522.8_Equal Employment Opportunity

522.803  Responsibilities.
522.804  Affirmative action programs.
522.804-1  Nonconstruction.
522.804-2  Construction.

[[Page 184]]

522.805  Procedures.
522.807  Exemptions.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37220, July 9, 1999, unless otherwise noted.



                   Subpart 522.1_Basic Labor Policies



522.101  Labor relations.



522.101-1  General.

    The Office of General Counsel (OGC) and the agency labor advisor 
shall--
    (a) Serve as the GSA points of contact on all contractor labor 
relations matters;
    (b) Initiate contact on contractor labor relations matters with 
national offices of labor organizations, Government departments, 
agencies or other governmental organizations. Contracting offices shall 
notify OGC and the agency labor advisor when they are contacted by such 
external organizations;
    (c) Serve as a clearinghouse for information on labor laws 
applicable to Government acquisitions; and
    (d) Respond to questions involving FAR Part 22, Application of Labor 
Laws to Government Acquisitions, or other contractor labor relations 
matters concerning GSA acquisition programs. OGC determines the agency's 
legal position.

[73 FR 46203, Aug. 8, 2008]



522.103-5  Contract clauses.

    Insert FAR 52.222-1, Notice to the Government of Labor Disputes, in 
solicitations and contracts for DX rated orders under the Defense 
Priorities and Allocations System (DPAS). Information on the DPAS can be 
found at FAR Subpart 11.6, Priorities and Allocations.

[73 FR 46203, Aug. 8, 2008]



   Subpart 522.4_Labor Standards for Contracts Involving Construction



522.406  Administration and enforcement.



522.406-6  Payrolls and statements.

    Weekly payrolls and statements of compliance with respect to payment 
of wages are not required from a prime contractor or a subcontractor 
that personally performs work.

[73 FR 46203, Aug. 8, 2008]



               Subpart 522.8_Equal Employment Opportunity



522.803  Responsibilities.

    Contracting officers should submit questions on the applicability of 
E.O. 11246 and implementing regulations to assigned legal counsel.

[64 FR 37220, July 9, 1999, as amended at 73 FR 46203, Aug. 8, 2008]



522.804  Affirmative action programs.



522.804-1  Nonconstruction.

    (a) The requirements of FAR 22.804 also apply to each contractor and 
subcontractor with 50 or more employees that either:
    (1) Serves as a depository of Government funds; or
    (2) Is a financial institution serving as an issuing and paying 
agent for U.S. savings bonds and savings notes.
    (b) The contractors, subcontractors, and financial institutions 
described in 522.804-1(a) must develop a written affirmative action 
compliance program for each of its establishments regardless of the 
contract or holding value, in accordance with 41 CFR 60-1.40.

[64 FR 37220, July 9, 1999, as amended at 73 FR 46203, Aug. 8, 2008]



522.804-2  Construction.

    Goals for the employment of minorities and women in the construction 
industry are established by the Director, Office of Federal Contract 
Compliance Programs (OFCCP), Department of Labor. The current goal for 
the utilization of women is 6.9%, regardless of the location of the 
Federal contract. This

[[Page 185]]

goal was extended indefinitely by the Department of Labor in 1980. The 
current goals for minority participation vary by location and are listed 
in the Technical Assistance Guide for Construction Participation Goals 
for Minorities and Females. This guide can be accessed at http://
www.dol.gov/ofccp/index.htm.

[73 FR 46203, Aug. 8, 2008, as amended at 81 FR 1532, Jan. 13, 2016]



522.805  Procedures.

    (a) To determine whether the contract meets the threshold in FAR 
22.805(a), contracting officers shall include the value of the basic 
contract plus priced options. A contract modification exercising a 
priced option is not a contract award under FAR 22.805(a)(1)(ii) and 
does not a require a preaward clearance.
    (b) Contracting officers shall submit preaward clearance requests 
directly to the appropriate OFCCP regional office. A list of these 
offices can be found at http://www.dol.gov/ofccp/contacts/ofnation2.htm.
    (c) The EEO poster required by FAR 22.805(b) can be found at: http:/
/www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm In addition to 
providing this poster to each non-exempt contractor, the contracting 
officer shall advise contractors to complete the Employer Information 
Report (EEO-1) at http://www.eeoc.gov/eeo1survey/index.html.

[64 FR 37220, July 9, 1999, as amended at 73 FR 46203, Aug. 8, 2008; 81 
FR 1532, Jan. 13, 2016]



522.807  Exemptions.

    The agency labor advisor submits a request for exemption.



PART 523_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
--Table of Contents



Subpart 523.3_Hazardous Material Identification and Material Safety Data

Sec.
523.303  Contract clauses.
523.370  Solicitation provision.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37220, July 9, 1999, unless otherwise noted.



Subpart 523.3_Hazardous Material Identification and Material Safety Data



523.303  Contract clauses.

    (a) Insert 552.223-70, Hazardous Substances, in solicitations and 
contracts for packaged items subject to the Federal Hazardous Substances 
Act and the Hazardous Materials Transportation Act.
    (b) Insert 552.223-71, Nonconforming Hazardous Materials, in 
solicitations and contracts for supplies that contain hazardous 
materials.
    (c) Insert 552.223-73, Preservation, Packaging, Packing, Marking and 
Labeling of Hazardous Materials (HAZMAT) for Shipments, in solicitations 
and contracts for packaged items containing hazardous materials.

[64 FR 37220, July 9, 1999, as amended at 80 FR 36248, June 24, 2015]



523.370  Solicitation provision.

    Insert 552.223-72, Hazardous Material Information, in any 
solicitation that provides for delivery of hazardous materials on an 
f.o.b. origin basis.



PART 525_FOREIGN ACQUISITION--Table of Contents



Subpart 525.1--Buy American Act-Supplies [Reserved]

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

[[Page 186]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





PART 527_PATENTS, DATA, AND COPYRIGHTS--Table of Contents



    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.



               Subpart 527.4_Rights in Data and Copyrights



527.409  Solicitation provisions and contract clauses.

    Architect-Engineer Services and Construction Contracts Involving 
                       Architect-Engineer Services

    Insert the following in solicitations and contracts for architect-
engineer services and construction contracts involving architect-
engineer services:
    (a) Insert 552.227-70, Government Rights (Unlimited), instead of FAR 
52.227-17, Rights in Data-Special Works, in contracts, except if 
552.227-71 is prescribed.
    (b) If the Government requires sole property rights and exclusive 
control over the design and data, insert 552.227-71, Drawings and Other 
Data to Become Property of Government, instead of FAR 52.227-17.



PART 528_BONDS AND INSURANCE--Table of Contents



           Subpart 528.2_Sureties and Other Security for Bonds

Sec.
528.202  Acceptability of corporate sureties.

                         Subpart 528.3_Insurance

528.310  Contract clause for work on a Government installation.
528.311  Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.
528.311-1  Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.



           Subpart 528.2_Sureties and Other Security for Bonds



528.202  Acceptability of corporate sureties.

    Corporate surety bonds must be manually signed by the Attorney-in-
Fact or officer of the surety company and the corporate seal affixed. 
The contracting officer may waive failure of the surety to affix the 
corporate seal as a minor informality. (See B-184120, July 2, 1975, 75-2 
CPD 9.)

[74 FR 17099, Apr. 14, 2009]



                         Subpart 528.3_Insurance



528.310  Contract clause for work on a Government installation.

    Insert the clause at 552.228-5, Government as Additional Insured, in 
each solicitation and contract that meets all the following conditions:
    (a) The contract amount is expected to exceed the simplified 
acquisition threshold; and
    (b) The contract will require work to be performed on Government 
property.

[74 FR 17099, Apr. 14, 2009]



528.311  Solicitation provision and contract clause on liability 
insurance under cost-reimbursement contracts.



528.311-1  Contract clause.

    Use the clause at FAR 52.228-7, Insurance--Liability to Third 
Persons, in solicitations and contracts, other than those for 
construction and those for architect-engineer services, when a cost-
reimbursement contract is contemplated, unless the head of the 
contracting activity waives the requirement for use of the clause.

[74 FR 17099, Apr. 14, 2009]



PART 529_TAXES--Table of Contents



                     Subpart 529.4_Contract Clauses

Sec.
529.401  Domestic contracts.
529.401-70  Purchases at or under the simplified acquisition threshold.

[[Page 187]]

529.401-71  Contracts for supplies and services usable by the DC 
          Government.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37222, July 9, 1999, unless otherwise noted.



                     Subpart 529.4_Contract Clauses



529.401  Domestic contracts.



529.401-70  Purchases at or under the simplified acquisition threshold.

    Insert 552.229-70, Federal, State, and Local Taxes, in purchases and 
contracts estimated to exceed the micropurchase threshold, but not the 
simplified acquisition threshold.



529.401-71  Contracts for supplies and services usable by the DC Government.

    Insert 552.229-71, Federal Tax-DC Government, in solicitations and 
contracts that permit the District of Columbia Government to place 
orders.



PART 532_CONTRACT FINANCING--Table of Contents



          Subpart 532.1_Non-Commercial Item Purchase Financing

Sec.
532.111  Contract clauses for non-commercial purchases.

                   Subpart 532.8_Assignment of Claims

532.806  Contract clauses.

                      Subpart 532.9_Prompt Payment

532.904  Determining payment due dates.
532.905  Payment documentation and process.
532.905-70  Final payment--construction and building service contracts.
532.908  Contract clauses.

      Subpart 532.70_Authorizing Payment by Government Charge Card

532.7002  Solicitation requirements.
532.7003  Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37222, July 9, 1999, unless otherwise noted.



          Subpart 532.1_Non-Commercial Item Purchase Financing



532.111  Contract clauses for non-commercial purchases.

    For contracts that include the clause at FAR 52.232-5, Payments 
Under Fixed-Price Construction Contracts, the contracting officer shall 
provide the contractor with GSA Form 2419, Certification of Progress 
Payments Under Fixed-Price Construction Contracts, to be used to make 
the certification required by FAR 52.232-5(c).

[74 FR 54917, Oct. 26, 2009]



                   Subpart 532.8_Assignment of Claims



532.806  Contract clauses.

    Insert the clause at 552.232-23, Assignment of Claims, in 
solicitations and requirements or indefinite quantity contracts under 
which more than one agency may place orders.



                      Subpart 532.9_Prompt Payment



532.904  Determining payment due dates.

    Payment due dates for construction contracts are addressed at FAR 
32.904(d). The following procedures apply to construction and building 
service contracts:
    (a) The amount of final payment must include, as appropriate, 
deductions to cover any of the following:
    (1) Liquidated damages for late completion.
    (2) Liquidated damages for labor violations.
    (3) Amounts withheld for improper payment of labor wages.
    (4) The amount of unilateral change orders covering defects and 
omissions.
    (5) The agreed-upon dollar amount in a Deficiency Report, which is 
included in all applicable Operation and Maintenance (O&M) service 
contracts.
    (b) When the contract is for the performance of building services, 
the contracting officer shall include the clause at 552.232-72, Final 
Payment Under Building Services Contracts.

[74 FR 54917, Oct. 26, 2009]

[[Page 188]]



532.905  Payment documentation and process.

    For contracts of the type shown in 532.7201(a)(1) through (4):
    (a) Contractors are to submit invoices or vouchers to the 
contracting officer for approval. Invoices must be annotated with the 
date of receipt, as required by FAR 32.905. That date will be used to 
determine interest penalties for late payments. The contracting officer 
or designee must review the processing of invoices or vouchers before 
payment to determine if the items and amounts claimed are consistent 
with the contract terms and represent prudent business transactions. The 
contracting officer must ensure that these payments are commensurate 
with physical and technical progress under the contract. If the 
contractor has not deducted questionable amounts from the invoice or 
amounts required to be withheld, the contracting officer must make the 
required deduction, except as provided in 532.7203. Subject to 532.7201, 
the contracting officer must note approval of any payment on (or 
attached to) the invoice or voucher submitted by the contractor and 
forward the invoice or voucher to the appropriate contract finance 
office for retention after certification and scheduling for payment by a 
disbursing office.
    (b) See GSAM 532.7203 for the handling of audit findings.

[74 FR 54917, Oct. 26, 2009]



532.905-70  Final payment--construction and building service contracts.

    The following procedures apply to construction and building service 
contracts:
    (a) The Government shall pay the final amount due the Contractor 
under this contract after the documentation in the payment clauses of 
the contract is submitted. This includes the final release prescribed 
for construction at FAR 52.232-5, and for building services at GSAR 
552.232-72.
    (b) Contracting officers may not process the final payment on 
construction or building service contracts until the contractor submits 
a properly executed GSA Form 1142, Release of Claims, except as provided 
in paragraph (c) of this section.
    (c) In cases where, after 60 days from the initial attempt, the 
contracting officer is unable to obtain a release of claims from the 
contractor, the final payment may be processed with the approval of 
assigned legal counsel.
    (d) The amount of final payment must include, as appropriate, 
deductions to cover any of the following:
    (1) Liquidated damages for late completion.
    (2) Liquidated damages for labor violations.
    (3) Amount withheld for improper payment of labor wages.
    (4) The amount of unilateral change orders covering defects and 
omissions.

[77 FR 6987, Feb. 10, 2012]



532.908  Contract clauses.

    (a) GSA has a FAR deviation that allows this agency to use the 
clause at 552.232-1, Payments, in lieu of the clause at FAR 52.232-1, 
Payments.
    (b) General. Before exercising the authority to modify the date for 
constructive acceptance or constructive approval of progress payments in 
paragraph (a)(5)(i) of the clause at FAR 52.232-25, Prompt Payment, the 
contracting officer must prepare a written justification explaining why 
a longer period is necessary. An official one level above the 
contracting officer must approve the justification. The time needed 
should be determined on a case-by-case basis, but the specified 
constructive acceptance period shall not exceed 30 days.
    (c) Stock, Special Order, and Schedules Programs. (1) GSA has 
obtained a FAR Deviation to authorize payment within 10 days of receipt 
of a proper invoice. The authority applies only to:
    (i) Orders placed by GSA under the referenced programs;
    (ii) That include FAR 52.232-33, Mandatory Information for 
Electronic Funds Transfer Payment; and
    (iii) For which the order is placed, and the contractor submits 
invoices, using EDI in accordance with the Trading Partner Agreement.
    (2) If the contract is for commercial items and will include FAR 
52.212-4, use the clause with its Alternate II. If the contract is not 
for commercial items, use the clause at 552.232-25,

[[Page 189]]

Prompt Payment, instead of FAR 52.232-25.

[74 FR 54918, Oct. 26, 2009]



      Subpart 532.70_Authorizing Payment by Government Charge Card



532.7002  Solicitation requirements.

    (a) In solicitations for supplies and services, except FSS schedule 
solicitations, request offerors to indicate if they will accept payment 
by Governmentwide commercial purchase card. Identify the card brand(s) 
under the GSA SmartPay program that may be used to make payments under 
the contract, on the cover page or in Section L of the solicitation.
    (b) For FSS schedule contracts, identify the card brand(s) under the 
GSA SmartPay program that may be used to make payments under the 
contract in the contract award letter.
    (c) For orders placed by GSA, you may authorize payment by 
Governmentwide commercial purchase card only for orders that do not 
exceed $100,000 (see GSA Order, Guidance on Use of the Credit Card for 
Purchases (CFO 4200.1)).
    (d) Consider requesting offerors to designate different levels for 
which they may accept payment by Governmentwide commercial purchase 
card, for example:

    ``If awarded a contract under this solicitation, the offeror agrees 
to accept payment by Governmentwide commercial purchase card for orders 
of:

--$2,500 or less
--$25,000 or less
--$50,000 or less
--$100,000 or less''

[65 FR 11247, Mar. 2, 2000]



532.7003  Contract clause.

    For indefinite-delivery, indefinite-quantity (IDIQ) contracts other 
than Schedules, insert the clause at 552.232-77, Payment By Government 
Charge Card, if the contract will provide for payment by Government 
charge card as an alternative method of payment for orders. For Schedule 
contracts that provide for payment using the Government charge card, use 
the clause(s) prescribed at part 538.

[74 FR 54918, Oct. 26, 2009]



PART 533_PROTESTS, DISPUTES, AND APPEALS--Table of Contents



                         Subpart 533.1_Protests

Sec.
533.103  Protests to the agency.
533.103-1  Filing a protest.

                   Subpart 533.2_Disputes and Appeals

533.209  Suspected fraudulent claims.
533.211  Contracting officer's decision.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37224, July 9, 1999, unless otherwise noted.



                         Subpart 533.1_Protests



533.103  Protests to the agency.



533.103-1  Filing a protest.

    (a) Any protester filing an agency protest has the choice of 
requesting either that the contracting officer or the Agency Protest 
Official decide the protest. If the protest is silent on this matter, 
the contracting officer will decide the protest. If a party requests a 
review at a level above the contracting officer, the Agency Protest 
Official will decide the protest. The decision by the Agency Protest 
Official for GSA is an alternative to a decision by the contracting 
officer on a protest. The Agency Protest Official for GSA will not 
consider an appeal of the contracting officer's decision on an agency 
protest.
    (b) If an agency protest is filed, the deciding official uses the 
procedures in FAR 33.103 and this section to resolve the protest. The 
deciding official will provide a fair and quick review of any protest 
filed with the agency.
    (c) The filing timeframes in FAR 33.103(e) apply. An agency protest 
is filed when the complete protest is received at the location the 
solicitation designates for serving protests. GSA's hours of operation 
are 8 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be 
considered received and filed the following business day.
    (d) The protest must meet all the following conditions:

[[Page 190]]

    (1) Include the information required by FAR 33.103(d)(2).
    (2) Indicate that it is a protest to the agency.
    (3) Be filed in writing with the contracting officer.
    (4) State whether the protester chooses to have the contracting 
officer or the Agency Protest Official decide the protest. If the 
protest does not include the protester's choice, then the contracting 
officer will decide the protest (see paragraph (a) of this subsection).
    (e) The following procedures apply to information submitted in 
support of or in response to an agency protest:
    (1) GSA procedures do not provide for any discovery.
    (2) The deciding official has discretion to request additional 
information from either the agency or the protester, orally or in 
writing, as may be necessary to render a timely decision on the protest. 
However, protests are normally decided on the basis of information 
initially provided by the protester and the agency.
    (3) To the extent permitted by law and regulations, the parties may 
exchange relevant information.
    (4) The agency must make a written response to the protest within 
ten days unless another date is set by the deciding official.
    (5) The agency must also provide the protester with a copy of the 
response on the same day it files the protest response with the deciding 
official. If the agency believes it needs to redact or withhold any 
information in the response from the protester, it should identify and 
provide the information to the deciding official for in camera review.
    (f) A protester may represent itself or be represented by legal 
counsel. GSA will not reimburse the protester for any legal fees related 
to the agency protest.
    (g) GSA may dismiss or stay proceedings on an agency protest if a 
protest on the same or similar basis is filed with a protest forum 
outside of GSA.

[73 FR 74614, Dec. 9, 2008]



                   Subpart 533.2_Disputes and Appeals



533.209  Suspected fraudulent claims.

    In GSA, the agency official responsible for investigating fraud is 
the Office of Inspector General.

[73 FR 74614, Dec. 9, 2008]



533.211  Contracting officer's decision.

    The contracting officer's written decision must include the 
paragraph at FAR 33.211(a)(4)(v). The contracting officer shall state in 
the decision that a contractor's notice of appeal to the Civilian Board 
of Contract Appeals (CBCA) should include a copy of the contracting 
officer's decision.

[73 FR 74614, Dec. 9, 2008]

[[Page 191]]



             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING





PART 536_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--Table of Contents



                          Subpart 536.1_General

Sec.
536.101  Applicability.

      Subpart 536.2_Special Aspects of Contracting for Construction

536.213  Special procedures for sealed bidding in construction 
          contracting.
536.213-3  Invitations for bids.
536.213-370  Bids that include alternates.
536.213-371  Bids that include options.
536.213-372  Bids that include both alternates and options.
536.270  Exercise of options.

                     Subpart 536.5_Contract Clauses

536.570  Supplemental provisions and clauses.
536.570-1  Definitions.
536.570-2  Authorities and limitations.
536.570-3  [Reserved]
536.570-4  Basis of award--construction contract.
536.570-5--536.570-7  [Reserved]
536.570-8  Specifications and drawings.
536.570-9  Shop drawings, coordination drawings, and schedules.
536.570-10--536.570-11  [Reserved]
536.570-12  Use of equipment by the Government.
536.570-13  Subcontracts.

                Subpart 536.6_Architect-Engineer Services

536.602  Selection of firms for architect-engineer contracts.
536.602-1  Selection criteria.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37224, July 9, 1999, unless otherwise noted.



                          Subpart 536.1_General



536.101  Applicability.

    This part supplements FAR Part 36 policies and procedures applicable 
to contracting for construction and architect-engineer services. 
Contracts for construction management services are covered by FAR Part 
37 and GSAM Part 537. Part 536 shall take precedence when the 
acquisition involves (1) construction or architect-engineer services, 
and (2) when the requirement is inconsistent with another part of the 
GSAR.

[81 FR 4594, Jan. 27, 2016]



      Subpart 536.2_Special Aspects of Contracting for Construction



536.213  Special procedures for sealed bidding in construction contracting.



536.213-3  Invitations for bids.



536.213-370  Bids that include alternates.

    (a) The base bid must include all features essential to a sound and 
adequate building design. If it appears that funds available for a 
project may be insufficient to include all desired features in the base 
bid, you may issue a solicitation for a base bid and include one or more 
alternates in the order of priority. Use alternates only if they are 
clearly justified and involve substantial amounts of work in relation to 
the base bid. Their use must be limited and should involve only ``add'' 
alternates.
    (b) Before opening bids that include alternates, determine, and 
record in the contract file, the amount of funds available for the 
project. The amount recorded must be announced at the beginning of the 
bid opening. The amount is the controlling factor in determining the low 
bidder. This amount may be increased later when determining the 
alternate items to award to the low bidder if the following condition is 
met: the award amount of the base bid plus the combination of alternate 
items does not exceed the amount offered for the base bid and the same 
combination of alternate items by any other responsible bidder whose bid 
conforms to the solicitation. This requirement prevents the displacement 
of the low bidder by manipulating the alternates to be used.



536.213-371  Bids that include options.

    (a) Subject to the limitations in paragraph (c) of this section, you 
may include options in contracts if it is in the Government's interest.

[[Page 192]]

    (b) the appropriate use of options may include, but is not limited 
to, any of the following:
    (1) If additional work is anticipated but funds are not expected to 
be available at the time of award, and it would not be practicable to 
award a separate contract or to permit an additional contractor to work 
on the same site.
    (2) If fixed building equipment, e.g., elevators or escalators, will 
be installed under the construction contract and it is advantageous to 
have the installer of the equipment maintain and service the equipment 
during the warranty period.
    (c) You must not use options under any of the following conditions:
    (1) the prospective option represents known firm requirements for 
which funds are available unless competition for the option quantity is 
impracticable once the initial contract is awarded.
    (2) The contractor will incur undue risks; e.g., the price or 
availability of necessary materials or labor is not reasonably 
foreseeable.
    (d) Solicitations containing option provisions must state the period 
within which the options may be exercised.
    (e) Solicitations must state whether the basis of award is inclusive 
or exclusive of the options. Before issuing a solicitation that includes 
evaluated options, you must determine that there is reasonable certainty 
that funds will be made available to permit exercise of the option.



536.213-372  Bids that include both alternates and options.

    (a) Solicitations may include both alternates and options if the 
conditions in 536.213-370, Bids that include alternates, and 536.213-
371, Bids that include options, are satisfied. In these solicitations, 
the low bidder for purposes of award is the responsible bidder offering 
the lowest aggregate price for the base bid and the alternates, in the 
order of priority listed in the solicitation, that provide the most work 
features within the funds available at bid opening, plus all options 
designated to be evaluated.
    (b) The basis of award may require the evaluation of options 
associated with alternates if the related alternate is selected.
    (c) Before opening bids that include both alternates and options, 
determine, and record in the contract file, the amount of funds 
available for the project (i.e., for the base bid and alternate work). 
The amount recorded must be announced at the beginning of the bid 
opening. This amount may be increased later when determining the 
alternate items to be awarded to the low bidder if the following 
condition is met: the award amount of the base bid and evaluated options 
plus the alternate items does not exceed the amount offered for the base 
bid, the evaluated options, and the same combination of alternate items 
by any other responsible bidder whose bid conforms to the solicitation.



536.270  Exercise of options.

    (a) If exercising an option, notify the contractor, in writing, 
within the time period specified in the contract.
    (b) Exercise options only after determining that all the following 
conditions exist:
    (1) Funds are available.
    (2) The requirement covered by the option fulfills an existing 
Government need.
    (3) Exercising the option is the most advantageous method of 
satisfying the Government's need, price and other factors considered.
    (c) Before exercising an option, you must determine that the action 
complies with the option's terms and this section's requirements. 
Include your written determination in the contract file.
    (d) The contract modification, or other written document which 
notifies the contractor of the exercise of the option, must cite the 
option clause as authority. If exercising an unpriced or unevaluated 
option, cite the statutory authority permitting the use of other than 
full and open competition (see FAR 6.302 and 517.207).

[[Page 193]]



                     Subpart 536.5_Contract Clauses



536.570  Supplemental provisions and clauses.



536.570-1  Definitions.

    Insert 552.236-70, Definitions, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated.



536.570-2  Authorities and limitations.

    Insert 552.236-71, Authorities and Limitations, in solicitations and 
contracts if construction, dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to 
exceed the simplified acquisition threshold.



536.570-3  [Reserved]



536.570-4  Basis of award--construction contract.

    (a) Insert a provision substantially the same as 552.236-73, Basis 
of Award--Construction Contract, in solicitations for fixed-price 
construction contracts except if any of the following conditions apply:
    (1) The solicitation requires the submission of a lump-sum bid only.
    (2) The solicitation is for an indefinite quantity contract.
    (3) The contract amount is not expected to exceed the simplified 
acquisition threshold.
    (b) Instructions for use.

------------------------------------------------------------------------
     If the solicitation requests the
          submission of a . . .                  Then use the . . .
------------------------------------------------------------------------
(1) Base bid and unit prices.............  Basic provision.
(2) Base bid and options.................  Provision with its Alternate
                                            I.
(3) Base bid and alternates..............  Provision with its Alternate
                                            II.
(4) Base bid, alternates, and options....  Provision with its Alternate
                                            III.
------------------------------------------------------------------------



536.570-5--536.570-7  [Reserved]



536.570-8  Specifications and drawings.

    Insert the clause at 552.236-77, Specifications and Drawings, in 
solicitations and contracts if construction, dismantling, demolition, or 
removal of improvements is contemplated and the contract amount is 
expected to exceed the simplified acquisition threshold.



536.570-9  Shop drawings, coordination drawings, and schedules.

    Insert the clause at 552.236-78, Shop Drawings, Coordination 
Drawings, and Schedules, in solicitations and contracts if construction 
is contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold.



536.570-10--536.570-11  [Reserved]



536.570-12  Use of equipment by the Government.

    Insert the clause at 552.236-81, Use of Equipment by the Government, 
in contracts requiring heating and air-conditioning of existing 
buildings if it may be necessary for the Government to operate all or 
part of the equipment before final acceptance of the contract.



536.570-13  Subcontracts.

    Insert 552.236-82, Subcontracts, in solicitations and contracts for 
construction if the contract amount is expected to exceed the simplified 
acquisition threshold.



                Subpart 536.6_Architect-Engineer Services



536.602  Selection of firms for architect-engineer contracts.



536.602-1  Selection criteria.

    (a) FAR 36.602-1 requires that agencies include ``location in the 
general geographical area of the project and knowledge of locality of 
the project'' as one of several selection criteria.
    (1) Do not use this evaluation factor as a minimum qualification 
requirement for determining whether a firm is eligible to compete for a 
proposed project.
    (2) This factor must not exceed 5 percent of the total weight of all 
evaluation criteria. In order to receive maximum score for this factor, 
the architect-engineer firm(s) must demonstrate that at least 35 percent 
of the architect-engineer contract services (based on the total contract 
price) will be accomplished within the geographical boundaries 
established for the project.
    (3) Under an approved class deviation from FAR 36.602-1(a)(5), this 
factor does not apply to projects that the

[[Page 194]]

Chief Architect of GSA determines have national significance.
    (b) The public announcement (FedBizOpps notice) for a proposed 
project should identify the general geographical area of the project by 
either:
    (1) A radius in miles or other appropriate unit of measure.
    (2) The Standard Metropolitan Statistical Area, county(ies), 
state(s) surrounding the project, or other appropriate geographic 
boundaries.
    (c) Architect-engineer selections under the Design Excellence 
Program must apply the geographical evaluation criteria in the second 
phase.
    (d) The public announcement (FedBizOpps notice) must provide the 
number of calendar days the architect-engineer of record has to 
establish a production capability within the general geographical area 
of the project. You may allow the architect-engineer of record up to 45 
calendar days after contract award to establish this production 
capability.

[65 FR 11247, Mar. 2, 2000, as amended at 81 FR 1532, Jan. 13, 2016]



PART 537_SERVICE CONTRACTING--Table of Contents



                 Subpart 537.1_Service Contracts_General

Sec.
537.110  Solicitation provisions and contract clauses.

             Subpart 537.2_Advisory and Assistance Services

537.201  Definitions.
537.270  Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37226, July 9, 1999, unless otherwise noted.



                 Subpart 537.1_Service Contracts_General



537.110  Solicitation provisions and contract clauses.

    The following provision and clauses apply to contracts for building 
services:
    (a) If the contract is expected to exceed the simplified acquisition 
threshold and it is not initiated with AbilityOne under the Javits-
Wagner-O'Day Act insert 552.237-71, Qualifications of Employees, in the 
solicitation and contract. If needed, use supplemental provisions or 
clauses to describe specific requirements for employees performing work 
on the contract.
    (b) Insert 552.237-72, Prohibition Regaring ``Quasi-Military Armed 
Forces,'' in solicitations and contracts for guard service.

[65 FR 41379, July 5, 2000, as amended at 74 FR 20606, May 5, 2009; 79 
FR 62884, Oct. 21, 2014; 81 FR 1532, Jan. 13, 2016]



             Subpart 537.2_Advisory and Assistance Services



537.201  Definitions.

    As used in this subpart--
    Evaluation or analysis of a proposal means proposal evaluation as 
described in FAR 15.305. It includes: Cost or price evaluation using 
cost or price analysis, as defined in FAR 15.404.
    Proposal means a proposal submitted for an initial contract award. 
(See FAR 37.203(d)). It does not include proposals submitted after 
contract award, such as value engineering proposals, proposals related 
to contract modifications, claims, or other contract administration 
actions.
    Readily available means that employees with the requisite training 
and capability are employed by the agency, capable of handling 
additional work relating to other duties as assigned by management, and 
that the travel and other costs associated with using covered personnel 
does not exceed the projected cost of a contract for evaluation and 
analysis services.
    Requisite training and capability means training and capability 
necessary to successfully perform the task or contract at issue in the 
time and in the manner required. It may include relevant experience, 
recent performance of work of similar size and scope, specific training 
and other factors that the contracting officer determines are necessary 
to the successful performance of the task or contract at issue.

[74 FR 20606, May 5, 2009]

[[Page 195]]



537.270  Contract clause.

    Insert the clause at 552.237-73, Restriction on Disclosure of 
Information, in solicitations and contracts for proposal evaluation and 
analysis services.



PART 538_FEDERAL SUPPLY SCHEDULE CONTRACTING--Table of Contents



  Subpart 538.2_Establishing and Administering Federal Supply Schedules

Sec.
538.270  Evaluation of multiple award schedule (MAS) offers.
538.271  MAS contract awards.
538.272  MAS price reductions.
538.273  Contract clauses.

            Subpart 538.70_Purchasing by Non-Federal Entities

538.7000  Scope of subpart.
538.7001  Definitions.
538.7002  General.
538.7003  Policy.
538.7004  Solicitation provisions and contract clauses.

Subpart 538.71 [Reserved]

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37227, July 9, 1999, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 538 appear at 69 FR 
28065, May 18, 2004.



  Subpart 538.2_Establishing and Administering Federal Supply Schedules



538.270  Evaluation of multiple award schedule (MAS) offers.



538.270-1  Evaluation of offers without access to transactional data.

    (a) Applicability. Utilize this evaluation methodology for 
negotiating MAS offers when the commercial sales practices format is 
included in the solicitation (see 515.408).
    (b) When offerors have commercial catalogs, negotiate concessions 
from established catalogs, including price and non-price terms and 
conditions.
    (c) The Government will seek to obtain the offeror's best price (the 
best price given to the most favored customer). However, the Government 
recognizes that the terms and conditions of commercial sales vary and 
there may be legitimate reasons why the best price is not achieved.
    (d) Establish negotiation objectives based on a review of relevant 
data and determine price reasonableness.
    (e) When establishing negotiation objectives and determining price 
reasonableness, compare the terms and conditions of the MAS solicitation 
with the terms and conditions of agreements with the offeror's 
commercial customers. When determining the Government's price 
negotiation objectives, consider the following factors:
    (1) Aggregate volume of anticipated purchases.
    (2) The purchase of a minimum quantity or a pattern of historic 
purchases.
    (3) Prices taking into consideration any combination of discounts 
and concessions offered to commercial customers.
    (4) Length of the contract period.
    (5) Warranties, training, and/or maintenance included in the 
purchase price or provided at additional cost to the product prices.
    (6) Ordering and delivery practices.
    (7) Any other relevant information, including differences between 
the MAS solicitation and commercial terms and conditions that may 
warrant differentials between the offer and the discounts offered to the 
most favored commercial customer(s). For example, an offeror may incur 
more expense selling to the Government than to the customer who receives 
the offeror's best price, or the customer (e.g., dealer, distributor, 
original equipment manufacturer, other reseller) who receives the best 
price may perform certain value-added functions for the offeror that the 
Government does not perform. In such cases, some reduction in the 
discount given to the Government may be appropriate. If the best price 
is not offered to the Government, you should ask the offeror to identify 
and explain the reason for any differences. Do not require offerors to 
provide detailed cost breakdowns.
    (f) You may award a contract containing pricing which is less 
favorable than the best price the offeror extends

[[Page 196]]

to any commercial customer for similar purchases if you make a 
determination that both of the following conditions exist:
    (1) The prices offered to the Government are fair and reasonable, 
even though comparable discounts were not negotiated.
    (2) Award is otherwise in the best interest of the Government.
    (g) State clearly in the award document the price/discount 
relationship between the Government and the identified commercial 
customer (or category of customers) upon which the award is based.

[81 FR 41136, June 23, 2016]



538.271  MAS contract awards.

    (a) MAS awards will be for commercial items as defined in FAR 2.101.
    (b) Before awarding any MAS contract, determine that the offered 
prices are fair and reasonable (see FAR subpart 15.4 and 538.270). 
Document the negotiation and your determination using FAR 15.406-3 as 
guidance.

[64 FR 37227, July 9, 1999, as amended at 81 FR 41137, June 23, 2016]



538.272  MAS price reductions.

    (a) Applicability. This section applies when the contract contains 
the basic clause 552.238-74 Industrial Funding Fee and Sales Reporting.
    (b) The basic clause and Alternate I of 552.238-75, Price 
Reductions, requires the contractor to maintain during the contract 
period the negotiated price/discount relationship (and/or term and 
condition relationship) between the eligible ordering activities and the 
offeror's customer or category of customers on which the contract award 
was predicated (see 538.271(c)). If a change occurs in the contractor's 
commercial pricing or discount arrangement applicable to the identified 
commercial customer (or category of customers) that results in a less 
advantageous relationship between the eligible ordering activities and 
this customer or category of customers, the change constitutes a ``price 
reduction.''
    (c) Ensure that the contractor understands the requirements of 
section 552.238-75 and agrees to report all price reductions to the 
Contracting Officer as provided for in the clause.

[81 FR 41137, June 23, 2016]



538.273  Contract clauses.

    (a) Multiple award schedules. Insert in solicitations and contracts:
    (1) 552.238-70, Identification of Electronic Office Equipment 
Providing Accessibility for the Handicapped, if you include electronic 
office equipment items.
    (2) 552.238-71, Submission and Distribution of Authorized FSS 
Schedule Pricelists.
    (3) 552.238-72, Identification of Products That Have Environmental 
Attributes.
    (4) 552.238-73, Cancellation.
    (b) Multiple and single award schedules. Insert the following in 
solicitations and contracts:
    (1) 552.238-74, Industrial Funding Fee and Sales Reporting. Use 
Alternate I for Federal Supply Schedules with Transactional Data 
Reporting requirements. Clause 552.238-75 Alternate I should also be 
used when vendors agree to include clause 552.238-74 Alternate I in the 
contract.
    (2) 552.238-75, Price Reductions. Use Alternate I for Federal Supply 
Schedules with Transactional Data Reporting requirements. This alternate 
clause is used when vendors agree to include clause 552.238-74 Alternate 
I in the contract.
    (3) 552.238-81, Modifications (Federal Supply Schedule). (i) Use 
Alternate I for Federal Supply Schedules that only accept electronic 
modifications.
    (ii) Use Alternate II for Federal Supply Schedules with 
Transactional Data Reporting requirements. This alternate clause is used 
when vendors agree to include clause 552.238-74 Alternate I in the 
contract.

[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 68 
FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003; 72 FR 4652, Feb. 1, 
2007; 73 FR 54338, Sept. 19, 2008; 79 FR 14184, Mar. 13, 2014; 81 FR 
36429, June 6, 2016; 81 FR 41137, June 23, 2016; 81 FR 43957, July 6, 
2016]

[[Page 197]]



            Subpart 538.70_Purchasing by Non-Federal Entities

    Source: 68 FR 24378, May 7, 2003, unless otherwise noted.



538.7000  Scope of subpart.

    This subpart prescribes policies and procedures that implement 
statutory provisions authorizing non-federal organizations to use--
    (a) Federal Supply Schedule 70;
    (b) The Consolidated Schedule contracts containing information 
technology Special Item Numbers (SINs); and
    (c) Federal Supply Schedule 84.
    (d) Other Federal Supply Schedules as authorized in this subpart.

[73 FR 54338, Sept. 19, 2008, as amended at 81 FR 36429, June 6, 2016]



538.7001  Definitions.

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78) 
authorized to place orders under Federal supply schedule contracts.
    Preparedness means actions that may include, but are not limited to 
planning, resourcing, training, exercising, and organizing to build, 
sustain, and improve operational disaster response capabilities. 
Preparedness also includes the process of identifying the personnel, 
training, and equipment needed for a wide range of potential incidents, 
and developing jurisdiction-specific plans for delivering capabilities 
when needed for an incident.
    Recovery means actions including, but not limited to, the 
development, coordination, and execution of service- and site-
restoration plans; the reconstitution of Government operations and 
services; individual, private-sector, nongovernmental, and public-
assistance programs to provide housing and to promote restoration; long-
term care and treatment of affected persons; additional measures for 
social, political, environmental, and economic restoration; evaluation 
of the incident to identify lessons learned; post-incident reporting; 
and development of initiatives to mitigate the effects of future 
incidents.
    Relief means disaster ``response'' and ``recovery.'' Please see the 
full definitions for these terms in this section.
    Response means immediate actions taken during a disaster, or in its 
immediate aftermath, in order to save lives, protect property and the 
environment, and meet basic human needs. Response also includes the 
execution of emergency plans and actions to support short-term recovery.
    Schedule 70, as used in this subpart, means Schedule 70 information 
technology contracts, and Consolidated Products and Services Schedule 
contracts containing information technology SINs. The Consolidated 
Products and Services Schedule is a compilation of multiple individual 
Federal Supply Schedules; therefore, only the SINs that fall under 
Schedule 70 of the Consolidated Products and Services Schedule will 
apply to Cooperative Purchasing. No other Schedules, or SINs, containing 
information technology outside of Schedule 70 SINs, and Consolidated 
Products and Services Schedule contracts containing Schedule 70 SINs, 
will apply.
    Schedule 84 means the Federal Supply Schedule for alarm and signal 
systems, facility management systems, firefighting and rescue equipment, 
law enforcement and security equipment, marine craft and related 
equipment, special purpose clothing, and related services (as contained 
in Federal Supply Classification Code Group 84 or any amended or 
subsequent version of that Federal supply classification group).
    State and local government entities, as used in this subpart, means 
the states of the United States, counties, municipalities, cities, 
towns, townships, tribal governments, public authorities (including 
public or Indian housing agencies under the United States Housing Act of 
1937), school districts, colleges and other institutions of higher 
education, council of governments (incorporated or not), regional or 
interstate government entities, or any agency or instrumentality of the 
preceding entities (including any local educational agency or 
institution of higher education), and including legislative and judicial 
departments. The term does not include contractors of, or grantees of, 
State or local governments.

[[Page 198]]

    (1) Local educational agency has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 7713).
    (2) Institution of higher education has the meaning given that term 
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
1001(a)).
    (3) Tribal government means--
    (i) The governing body of any Indian tribe, band, nation, or other 
organized group or community located in the continental United States 
(excluding the State of Alaska) that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).

[68 FR 24378, May 7, 2003, as amended at 73 FR 54338, Sept. 19, 2008; 81 
FR 36429, June 6, 2016]



538.7002  General.

    (a) 40 U.S.C. 501, (the Act) authorizes the Administrator of General 
Services to procure and supply personal property and nonpersonal 
services for the use of Executive agencies. Under 40 U.S.C. 502, the 
goods and services available to executive agencies are also available to 
mixed ownership Government corporations, establishments within the 
legislative or judicial branches of Government (excepting the Senate, 
House of Representatives, Architect of the Capitol, and any activities 
under the direction of the Architect of the Capitol), the District of 
Columbia, and Qualified Non-profit Agencies.
    (b) Section 211 of the E-Government Act of 2002 amends 40 U.S.C. 502 
to authorize the Administrator of General Services to provide for use of 
certain Federal supply schedules of the GSA by a State or local 
government, which includes any State, local, regional, or tribal 
government, or any instrumentality thereof (including any local 
educational agency or institution of higher education).
    (c) Pub.L. 110-248, The Local Preparedness Acquisition Act, 
authorizes the Administrator of General Services to provide for the use 
by state or local governments of Federal Supply Schedules of the General 
Services Administration (GSA) for alarm and signal systems, facility 
management systems, firefighting and rescue equipment, law enforcement 
and security equipment, marine craft and related equipment, special 
purpose clothing, and related services (as contained in Schedule 84).
    (d) Public Law 109-364, the John Warner National Defense 
Authorization Act for Fiscal Year 2007 authorizing state and local 
governments, to use Federal Supply Schedule contracts to purchase 
products and services to be used to facilitate recovery from a major 
disaster declared by the President under the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) or to 
facilitate for recovery from terrorism or nuclear, biological, chemical, 
or radiological attack. Public Law 111-263, the Federal Supply Schedules 
Usage Act of 2010 authorizing state and local governments to use Federal 
Supply Schedule contracts to purchase products and services to be used 
to facilitate disaster preparedness or response.
    (e) Public Law 111-263, the Federal Supply Schedules Usage Act of 
2010, authorizes the American National Red Cross to use Federal Supply 
Schedule contracts to purchase goods or services to be used in 
furtherance of its purposes as set forth in its federal charter (36 
U.S.C. 300102).
    (f) Public Law 111-263, the Federal Supply Schedules Usage Act of 
2010, authorizes other qualified organizations to use Federal Supply 
Schedule contracts to purchase products and services in furtherance of 
purposes determined to be appropriate to facilitate emergency 
preparedness and disaster relief and set forth in guidance by the 
Administrator of General Services, in consultation with the 
Administrator of the Federal Emergency Management Agency. Other 
qualified organizations must meet the requirements of 42 U.S.C. 5152.
    (g) A listing of the participating contractors and SINs for the 
goods and services that are available under these authorized Federal 
Supply Schedules,

[[Page 199]]

is available in GSA's e-Library at www.gsa.gov/elibrary.

[68 FR 24378, May 7, 2003, as amended at 73 FR 54338, Sept. 19, 2008; 81 
FR 36429, June 6, 2016]



538.7003  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening authorized Federal Supply Schedules for 
use by eligible non-federal entities, the contracting officer must make 
minor modifications to certain Federal Acquisition Regulation and GSAM 
provisions and clauses in order to make clear distinctions between the 
rights and responsibilities of the U.S. Government in its management and 
regulatory capacity pursuant to which it awards schedule contracts and 
fulfills associated Federal requirements versus the rights and 
responsibilities of eligible ordering activities placing orders to 
fulfill agency needs. Accordingly, the contracting officer is authorized 
to modify the following FAR provisions/clauses to delete ``Government'' 
or similar language referring to the U.S. Government and substitute 
``ordering activity'' or similar language when preparing solicitations 
and contracts to be awarded under authorized Federal Supply Schedules. 
When such changes are made, the word ``(DEVIATION)'' shall be added at 
the end of the title of the provision or clause. These clauses include 
but are not limited to:
    (a) 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) 52.216-18, Ordering.
    (c) 52.216-19, Order Limitations.
    (d) 52.229-1, State and Local Taxes.
    (e) 52.229-3, Federal, State, and Local Taxes.
    (f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour 
Contracts.
    (g) 52.232-17, Interest.
    (h) 52.232-19, Availability of Funds for the Next Fiscal Year.
    (i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
Central Contractor Registration
    (j) 52.232-36, Payment by Third Party.
    (k) 52.237-3, Continuity of Services.
    (l) 52.246-4, Inspection of Services-Fixed Price.
    (m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
    (n) 52.247-34, F.O.B. Destination.
    (o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.

[68 FR 24378, May 7, 2003, as amended at 73 FR 54338, Sept. 19, 2008; 81 
FR 36430, June 6, 2016]



538.7004  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-77, 
Definition (Federal Supply Schedules)-Non-Federal Entity in 
solicitations and contracts for all Federal Supply Schedules.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), in solicitations and 
contracts for all Federal Supply Schedules.
    (c) The contracting officer shall insert the clause at 552.238-79, 
Use of Federal Supply Schedule Contracts by Non-Federal Entities, in 
solicitations and contracts for all Federal Supply Schedules.
    (d) See 552.101-70 for authorized FAR deviations.

[81 FR 36430, June 6, 2016]

Subpart 538.71 [Reserved]



PART 539_ACQUISITION OF INFORMATION TECHNOLOGY--Table of Contents



 Subpart 539.70_Additional Requirements for Purchases Not in Support of 
                        National Security Systems

Sec.
539.7000  Scope of subpart.
539.7001  Policy.
539.7002  Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 76 FR 34888, June 15, 2011, unless otherwise noted.

[[Page 200]]



 Subpart 539.70_Additional Requirements for Purchases Not in Support of 
                        National Security Systems



539.7000  Scope of subpart.

    This subpart prescribes acquisition policies and procedures for use 
in acquiring information technology supplies, services and systems not 
in support of national security systems, as defined by FAR part 39.



539.7001  Policy.

    (a) GSA must provide information security for the information and 
information systems that support the operations and assets of the 
agency, including those provided or managed by another agency, 
contractor, or other source. Section 3544(a)(1)(A)(ii) of the Federal 
Information Security Management Act (FISMA) describes Federal agency 
security responsibilities as including ``information systems used or 
operated by an agency or by a contractor of an agency or other 
organization on behalf of an agency.''
    (b) Employees responsible for or procuring information technology 
supplies, services and systems shall possess the appropriate security 
clearance associated with the level of security classification related 
to the acquisition. They include, but are not limited to contracting 
officers, contract specialists, project/program managers, and 
contracting officer representatives.
    (c) Contracting activities shall coordinate with requiring 
activities and program officials to ensure that the solicitation 
documents include the appropriate information security requirements. The 
information security requirements must be sufficiently detailed to 
enable service providers to fully understand the information security 
regulations, mandates, and requirements that they will be subject to 
under the contract or task order.
    (d) GSA's Office of the Senior Agency Information Security Officer 
issued CIO IT Security Procedural Guide 09-48, ``Security Language for 
Information Technology Acquisitions Efforts,'' to provide IT security 
standards, policies and reporting requirements that shall be inserted in 
all solicitations and contracts or task orders where an information 
system is contractor owned and operated on behalf of the Federal 
Government. The guide can be accessed at http://www.gsa.gov/portal/
category/25690.



539.7002  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 552.239-
70, Information Technology Security Plan and Security Authorization, in 
solicitations that include information technology supplies, services or 
systems in which the contractor will have physical or electronic access 
to government information that directly supports the mission of GSA.
    (b) The contracting officer shall insert the clause at 552.239-71, 
Security Requirements for Unclassified Information Technology Resources, 
in solicitations and contracts containing the provision at 552.239-70. 
The provision and clause shall not be inserted in solicitations and 
contracts for personal services with individuals.

[[Page 201]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT





PART 541_ACQUISITION OF UTILITY SERVICES--Table of Contents



       Subpart 541.5_Solicitation Provisions and Contract Clauses

Sec.
541.501  Solicitation provision and contract clauses.

    Authority: 40 U.S.C. 121(c).



       Subpart 541.5_Solicitation Provisions and Contract Clauses



541.501  Solicitation provisions and contract clauses.

    In addition to the solicitation terms, provisions and contract 
clauses at FAR 41.501(c), the contracting officer shall include the 
following clauses--
    (a) 552.241-70, Availability of Funds for the Next Fiscal Year or 
Quarter. As prescribed in 541.501, insert the clause 552.241-70, 
Availability of Funds for the Next Fiscal Year or Quarter, instead of 
FAR 52.232-19, in all utility acquisitions; and
    (b) 552.241-71, Disputes (Utility Contracts). As prescribed in 
541.501, insert clause 552.241-71, Disputes (Utility Contracts), in 
solicitations and contracts for utility services subject to the 
jurisdiction and regulation of a utility rate commission.

[75 FR 48873, Aug. 12, 2010]



PART 542_CONTRACT ADMINISTRATION AND AUDIT SERVICES--Table of Contents



          Subpart 542.11_Production Surveillance and Reporting

Sec.
542.1107  Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.



          Subpart 542.11_Production Surveillance and Reporting



542.1107  Contract clause.

    The contracting officer shall insert 552.242-70, Status Report of 
Orders and Shipments, in solicitations and indefinite quantity and 
requirements contracts for Stock or Special Order Program items. The 
clause may be used in indefinite-delivery definite-quantity contracts 
for Stock or Special Order Program items when close monitoring is 
necessary because numerous shipments are involved.

[74 FR 863, Jan. 9, 2009]



PART 543_CONTRACT MODIFICATIONS--Table of Contents



    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.



                       Subpart 543.2_Change Orders



543.205  Contract clauses.

    The contracting officer shall insert 552.243-71, Equitable 
Adjustments, in solicitations and contracts containing FAR 52.243-4, 
Changes.

[74 FR 864, Jan. 9, 2009]



PART 546_QUALITY ASSURANCE--Table of Contents



                     Subpart 546.3_Contract Clauses

Sec.
546.302  Fixed-price supply contracts.
546.302-70  Source inspection by Quality Approved Manufacturer for 
          fixed-price supply contracts.
546.302-71  Source inspection.
546.302-72  Destination inspection.
546.312  Construction contracts.

                        Subpart 546.7_Warranties

546.708  Warranties of data.
546.710  Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

[[Page 202]]



                     Subpart 546.3_Contract Clauses



546.302  Fixed-price supply contracts.



546.302-70  Source inspection by Quality Approved Manufacturer for
fixed-price supply contracts.

    (a) For solicitations issued and contracts awarded by FAS that will 
exceed the simplified acquisition threshold and include the clause at 
52.246-2, Inspection of Supplies--Fixed-Price:
    (1) The contracting officer shall insert the clause at 552.246-70, 
Source Inspection by Quality Approved Manufacturer, in solicitations and 
contracts that provide for source inspection for the Stock and Special 
Order Programs.
    (2) The contracting officer may authorize inspection and testing at 
manufacturing plants or other facilities located outside the United 
States, Puerto Rico, or the U.S. Virgin Islands, under paragraph (a)(1) 
of the clause at 552.246-70 under any of the circumstances listed below 
after coordinating the authorization with QVOC and documenting the 
authorization in the file.
    (i) Inspection services are available from another Federal agency 
with primary inspection responsibility in the geographic area.
    (ii) An inspection interchange agreement exists with another agency 
for inspection at a contractor's plant.
    (iii) Other considerations will ensure more economical and effective 
inspection consistent with the Government's interest.
    (b) When the estimated value of the acquisition is below the 
simplified acquisition threshold and will include the clause at 52.246-
2, Inspection of Supplies--Fixed-Price, insert the clause at 552.246-70, 
Source Inspection by Quality Approved Manufacturer only:
    (1) In solicitations and contracts that support the Wildfire 
program.
    (2) In contracts when a pattern of acquisitions demonstrates an 
ongoing relationship with the contractor.

[74 FR 26108, June 1, 2009]



546.302-71  Source inspection.

    For solicitations and contracts issued by FAS, if Government 
personnel at the source will perform inspection, insert 552.246-71, 
Source Inspection by Government.

[64 FR 37228, July 9, 1999, as amended at 74 FR 26108, June 1, 2009]



546.302-72  Destination inspection.

    The contracting officer shall include the clause at 552.246-78, 
Inspection at Destination (JUL 09)in supply contracts that require 
inspection at destination.

[74 FR 26108, June 1, 2009]



546.312  Construction contracts.

    Insert the clause at 552.246-72, Final Inspection and Tests, in 
solicitations and contracts for construction that include FAR 52.246-12, 
Inspection of Construction.



                        Subpart 546.7_Warranties



546.708  Warranties of data.

    (a) The contracting officer shall use warranties of data only when 
both of the following conditions are applicable:
    (1) Use of a warranty is in the Government's interest and is 
documented; and
    (2) The contracting director concurs with the decision.
    (b) The contracting officer shall consult with the technical or 
specification manager responsible for developing any warranties of data.

[74 FR 26108, June 1, 2009]



546.710  Contract clause.

    The Contracting officer shall insert the clause at 552.246-77, 
Additional Contract Warranty Provisions for Supplies of a Noncomplex 
Nature, when using the clause at 52.246-17 in solicitations and 
contracts.

[74 FR 26108, June 1, 2009]

                           PART 547 [RESERVED]



PART 549_TERMINATION OF CONTRACTS--Table of Contents



    Authority: 40 U.S.C. 121(c).

Subpart 549.5 [Reserved]

[[Page 203]]



                     SUBCHAPTER H_CLAUSES AND FORMS





PART 552_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents



Sec.
552.000  Scope of part.

       Subpart 552.1_Instructions for Using Provisions and Clauses

552.101-70  Using part 552.
552.102  Incorporating provisions and clauses.
552.103  Identification of provisions and clauses.
552.104  Procedures for modifying and completing provisions and clauses.
552.105  Procedures for using alternates.
552.107-70  Provisions and clauses prescribed in subpart 552.1.

              Subpart 552.2_Text of Provisions and Clauses

552.200  Scope of subpart.
552.203-71  Restriction on Advertising.
552.204-9  Personal Identity Verification Requirements.
552.211-70--522.211-71  [Reserved]
552.211-72  Reference to Specifications in Drawings.
552.211-73  Marking.
552.211-74  [Reserved]
552.211-75  Preservation, Packaging and Packing.
552.211-76  Charges for packaging, packing, and marking.
552.211-77  Packing List.
552.211-78  [Reserved]
552.211-79  Acceptable Age of Supplies.
552.211-80  Age on Delivery.
552.211-81  Time of Shipment.
552.211-82  [Reserved]
552.211-83  Availability for Inspection, Testing, and Shipment/Delivery.
552.211-84  [Reserved]
552.211-85  Consistent pack and package requirements.
552.211-86  Maximum weight per shipping container.
552.211-87  Export packing.
552.211-88  Vehicle export preparation.
552.211-89  Non-manufactured wood packaging material for export.
552.211-90  Small parts.
552.211-91  Vehicle decals, stickers, and data plates.
552.211-92  Radio Frequency Identification (RFID) using passive tags.
552.211-93  [Reserved]
552.211-94  Time of delivery.
552.212-4  Contract Terms and Conditions--Commercial Items
552.212-70  [Reserved]
552.212-71  Contract Terms and Conditions Applicable to GSA Acquisition 
          of Commercial Items.
552.212-72  Contract Terms and Conditions Required To Implement Statutes 
          or Executive Orders Applicable to GSA Acquisition of 
          Commercial Items.
552.212-73  [Reserved]
552.214-70  ``All or None'' Bids.
552.214-71  [Reserved]
552.214-72  Bid Sample Requirements.
552.215-70  Examination of Records by GSA.
552.215-71  Examination of Records by GSA (Multiple Award Schedule).
552.215-72  Price Adjustment--Failure To Provide Accurate Information.
552.216-70  Economic Price Adjustment--FSS Multiple Award Schedule 
          Contracts.
552.216-71  Economic Price Adjustment--Special Order Program Contracts.
552.216-72  Placement of Orders.
552.216-73  Ordering Information.
552.216-74  Task-Order and Delivery-Order Ombudsman.
552.216-75  Transactional Data Reporting.
552.216-76  Ordering Agency Task-Order and Delivery-Order Ombudsman.
552.217-70  Evaluation of Options.
552.217-71  Notice Regarding Option(s).
552.217-73  Notice Regarding Information Collection Requirements.
552.219-70  Allocation of Orders--Partially Set-Aside Items.
552.219-71  Notice to Offerors of Subcontracting Plan Requirements.
552.219-72  Preparation, Submission, and Negotiation of Subcontracting 
          Plans.
552.219-73  Goals for Subcontracting Plan.
552.219-74  Section 8(a) Direct Award.
552.219-75  GSA Mentor-Protege Program.
552.219-76  Mentor Requirements and Evaluation.
552.223-70  Hazardous Substances.
552.223-71  Nonconforming Hazardous Materials.
552.223-72  Hazardous Material Information.
552.223-73  Preservation, Packaging, Packing, Marking and Labeling of 
          Hazardous Materials (HAZMAT) For Shipments.
552.227-70  Government Rights (Unlimited).
552.227-71  Drawings and Other Data To Become Property of Government.
552.228-5  Government as Additional Insured.
552.229-70  Federal, State, and Local Taxes.
552.229-71  Federal Excise Tax--DC Government.
552.232-1  Payments.
552.232-23  Assignment of Claims.
552.232-25  Prompt Payment.

[[Page 204]]

552.232-72  Final Payment Under Building Services Contracts.
552.232-77  Payment By Government Charge Card.
552.236-70  Definitions.
552.236-71  Authorities and Limitations.
552.236-72  [Reserved]
552.236-73  Basis of Award--Construction Contract.
552.236-74--552.236-76  [Reserved]
552.236-77  Specifications and Drawings.
552.236-78  Shop Drawings, Coordination Drawings, and Schedules.
552.236-79--552.236-80  [Reserved]
552.236-81  Use of Equipment by the Government.
552.236-82  Subcontracts.
552.237-70  [Reserved]
552.237-71  Qualifications of Employees.
552.237-72  Prohibition Regarding ``Quasi-Military Armed Forces.''
552.237-73  Restriction on Disclosure of Information.
552.238-70  Identification of Electronic Office Equipment Providing 
          Accessibility for the Handicapped.
552.238-71  Submission and Distribution of Authorized FSS Schedule 
          Pricelists.
552.238-72  Identification of Products That Have Environmental 
          Attributes.
552.238-73  Cancellation.
552.238-74  Industrial Funding Fee and Sales Reporting.
552.238-75  Price Reductions.
552.238-76  [Reserved]
552.238-77  Definition (Federal Supply Schedules)--Non-Federal Entity.
552.238-78  Scope of Contract (Eligible Ordering Activities).
552.238-79  Use of Federal Supply Schedule Contracts by Non-Federal 
          Entities
552.238-80  [Reserved]
552.238-81  Modification (Federal Supply Schedule).
552.239-70  Information Technology Security Plan and Security 
          Authorization.
552.239-71  Security Requirements for Unclassified Information 
          Technology Resources.
552.241-70  Availability of Funds for the Next Fiscal Year or Quarter.
552.241-71  Disputes (Utility Contracts).
552.242-70  Status Report of Orders and Shipments.
552.243-71  Equitable Adjustments.
552.246-70  Source Inspection by Quality Approved Manufacturer.
552.246-71  Source Inspection by Government.
552.246-72  Final Inspection and Tests.
552.246-77  Additional Contract Warranty Provisions for Supplies of a 
          Noncomplex Nature.
552.246-78  Inspection at Destination.
552.252-5  Authorized Deviations in Provisions.
552.252-6  Authorized Deviations in Clauses.
552.270-1  Instructions to Offerors--Acquisition of Leasehold Interests 
          in Real Property.
552.270-2  Historic Preference.
552.270-3  Parties To Execute Lease.
552.270-4  Definitions.
552.270-5  Subletting and Assignment.
552.270-6  Maintenance of Building and Premises--Right of Entry.
552.270-7  Fire and Casualty Damage.
552.270-8  Compliance with Applicable Law.
552.270-9  Inspection--Right of Entry.
552.270-10  Failure in Performance.
552.270-11  Successors Bound.
552.270-12  Alterations.
552.270-13  Proposals for Adjustment.
552.270-14  Changes.
552.270-15  Liquidated Damages.
552.270-16  Adjustment for Vacant Premises.
552.270-17  Delivery and Condition.
552.270-18  Default in Delivery--Time Extensions.
552.270-19  Progressive Occupancy.
552.270-20  Payment.
552.270-21  Effect of Acceptance and Occupancy.
552.270-22  Default by Lessor During the Term.
552.270-23  Subordination, Nondisturbance and Attornment.
552.270-24  Statement of Lease.
552.270-25  Substitution of Tenant Agency.
552.270-26  No Waiver.
552.270-27  Integrated Agreement.
552.270-28  Mutuality of Obligation.
552.270-29  Acceptance of Space.
552.270-30  Price Adjustment for Illegal or Improper Activity.
552.270-31  Prompt Payment.
552.270-32  Covenant Against Contingent Fees.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37229, July 9, 1999, unless otherwise noted.



552.000  Scope of part.

    This part provides the text of provisions and clauses which are 
unique to GSA or supplement the FAR.



       Subpart 552.1_Instructions for Using Provisions and Clauses



552.101-70  Using part 552.

    (a) Definition. ``Clause,'' as used in this subpart, means provision 
or clause as defined in FAR 52.101(a).
    (b) Numbering. (1) Clauses which are ``substantially'' the same as 
FAR clauses and clauses to be used instead of FAR clauses are identified 
as follows:

[[Page 205]]

    (i) The clause has the same title as a clause in the FAR.
    (ii) The number 5 precedes the clause.
    (iii) The clause appears under the same subsection number and 
caption as in the FAR.
    (2) Supplemental clauses are numbered in the same manner as the FAR, 
except:
    (i) The chapter number precedes the clause.
    (ii) The subsection numbers begin with 70.
    (iii) The clauses are sequentially numbered, e.g., 552.232-70, 
552.232-71, etc.



552.102  Incorporating provisions and clauses.

    You may incorporate clauses prescribed in the GSAR for solicitations 
and contracts by reference.



552.103  Identification of provisions and clauses.

    Deviations. If the GSAR prescribes a class deviation from a FAR 
clause, identify the clause by the GSAR citation (e.g., 552.232-8 PROMPT 
PAYMENT DISCOUNT (NOV 1987) (DEVIATION FAR 552.232-8)).



552.104  Procedures for modifying and completing provisions and clauses.

    (a) The procedures in FAR 52.104 apply when you modify or complete a 
GSAR provision or clause. Provisions and clauses shall not be modified 
unless the GSAR authorizes their modification.
    (b) You do not need to identify modifications of clauses which 
result from negotiations unless you issue an amendment to the 
solicitation.
    (c) In general, you should modify FAR or GSAR clauses only for 
individual cases. If a contracting activity develops a modification for 
repeated use, furnish a copy to the Office of GSA Acquisition Policy 
(MV) for potential inclusion in the GSAR.



552.105  Procedures for using alternates.

    The procedures in FAR 52.105 apply to GSAR part 552.



552.107-70  Provisions and clauses prescribed in subpart 552.1.

    (a) Insert the provision at 552.252-5, Authorized Deviations in 
Provisions, in solicitation that include any FAR or GSAR clause with an 
authorized deviation. You must use this provision in lieu of the FAR 
provision at 552.252-5.
    (b) Insert the clause at 552.252-6, Authorized Deviations in 
Clauses, in solicitations and contracts that include any FAR or GSAR 
clause with an authorized deviation. You must use this clause in lieu of 
the FAR clause at 52.252-6.



              Subpart 552.2_Text of Provisions and Clauses



552.200  Scope of subpart.

    This subpart sets forth the text of all GSAR provisions and clauses. 
It also cross-references the location in the GSAR that prescribes the 
use of each provision and clause.



552.203-71  Restriction on Advertising.

    As prescribed in 503.570-2, insert the following clause:

                  Restriction on Advertising (SEP 1999)

    The Contractor shall not refer to this contract in commercial 
advertising or similar promotions in such a manner as to state or imply 
that the product or service provided is endorsed or preferred by the 
White House, the Executive Office of the President, or any other element 
of the Federal Government, or is considered by these entities to be 
superior to other products or services. Any advertisement by the 
Contractor, including price-off coupons, that refers to a military 
resale activity shall contain the following statement: ``This 
advertisement is neither paid for nor sponsored, in whole or in part, by 
any element of the United States Government.''

                             (End of clause)



552.204-9  Personal Identity Verification requirements.

    As prescribed in 504.1303, insert the following clause:

         Personal Identity Verification Requirements (OCT 2012)

    (a) The contractor shall comply with GSA personal identity 
verification requirements, identified at http://www.gsa.gov/hspd12, if 
contractor employees require access to GSA

[[Page 206]]

controlled facilities or information systems to perform contract 
requirements.
    (b) The Contractor shall insert this clause in all subcontracts when 
the subcontractor is required to have access to a GSA-controlled 
facility or access to a GSA-controlled information system.

                             (End of clause)

[77 FR 59793, Oct. 1, 2012]



552.211-70--552.211-71  [Reserved]



552.211-72  Reference to Specifications in Drawings.

    As prescribed in 511.204(a), insert the following clause:

           References to Specifications in Drawings (FEB 1996)

    If military or other drawings are made a part of this contract, any 
reference in the drawings to Federal specifications or standards will be 
considered to be a reference to the date of such Federal specification 
or standard identified in the contract. If the date of the Federal 
specification or standard is not identified in the contract, the 
edition, including revisions thereto, in effect on the date the 
solicitation is issued will apply.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



552.211-73  Marking.

    As prescribed in 511.204(b)(1), insert the following clause:

                           Marking (FEB 1996)

    (a) General requirements. Interior packages, if any, and exterior 
shipping containers shall be marked as specified elsewhere in the 
contract. Additional marking requirements may be specified on delivery 
orders issued under the contract. If not otherwise specified, interior 
packages and exterior shipping containers shall be marked in accordance 
with the following standards:
    (1) Deliveries to civilian activities. Supplies shall be marked in 
accordance with Federal Standard 123, edition in effect on the date of 
issuance of the solicitation.
    (2) Deliveries to military activities. Supplies shall be marked in 
accordance with Military Standard 129, edition in effect on the date of 
issuance of the solicitation.
    (b) Improperly marked material. When Government inspection and 
acceptance are at destination, and delivered supplies are not marked in 
accordance with contract requirements, the Government has the right, 
without prior notice to the Contractor, to perform the required marking, 
by contract or otherwise, and charge the Contractor therefor at the rate 
specified elsewhere in this contract. This right is not exclusive, and 
is in addition to other rights or remedies provided for in this 
contract.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



552.211-74  [Reserved]



552.211-75  Preservation, Packaging and Packing.

    As prescribed in 511.204(b)(2), insert the following clause:

             Preservation, Packaging, and Packing (FEB 1996)

    Unless otherwise specified, all items shall be preserved, packaged, 
and packed in accordance with normal commercial practices, as defined in 
the applicable commodity specification. Packaging and packing shall 
comply with the requirements of the Uniform Freight Classification and 
the National Motor Freight Classification (issue in effect at time of 
shipment) and each shipping container of each item in a shipment shall 
be of uniform size and content, except for residual quantities. Where 
special or unusual packing is specified in an order, but not 
specifically provided for by the contract, such packing details must be 
the subject of an agreement independently arrived at between the 
ordering agency and the Contractor.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed at 511.204(b)(2), insert the 
following sentence in place of the last sentence of the clause:

    Where special or unusual packing is specified in an order, but not 
specifically provided for by the contract, such packing details must be 
the subject of an agreement independently arrived at between the 
ordering activity and the Contractor.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24379, May 7, 2003; 74 
FR 66255, Dec. 15, 2009]



552.211-76  Charges for packaging, packing, and marking.

    As prescribed in 511.204(b)(3), insert a clause substantially as 
follows:

[[Page 207]]

         Charges for Packaging, Packing, and Marking (JAN 2010)

    If supplies shipped to a GSA wholesale distribution center are not 
packaged, packed and marked in accordance with contract requirements, 
the Government has the right, without prior notice to the Contractor, to 
perform the required repackaging/repacking/remarking, by contract or 
otherwise, and charge the Contractor therefore at the rate of $_____* 
per man-hour or fraction thereof. The Contractor will also be charged 
for material costs, if incurred. This right is not exclusive, and is in 
addition to other rights or remedies provided for in this contract.

                             (End of clause)

    *The rate to be inserted in the above clause shall be determined by 
the Commissioner, Federal Acquisition Service, or a designee.

[74 FR 66255, Dec. 15, 2009]



552.211-77  Packing List.

    As prescribed in 511.204(c), insert the following clause:

                         Packing List (FEB 1996)

    (a) A packing list or other suitable shipping document shall 
accompany each shipment and shall indicate:
    (1) Name and address of the consignor;
    (2) Name and complete address of the consignee;
    (3) Government order or requisition number;
    (4) Government bill of lading number covering the shipment (if any); 
and
    (5) Description of the material shipped, including item number, 
quantity, number of containers, and package number (if any).
    (b) When payment will be made by Government commercial credit card, 
in addition to the information in (a) above, the packing list or 
shipping document shall include:
    (1) Cardholder name and telephone number and
    (2) The term ``Credit Card.''

                             (End of clause)

    Alternate I (MAY 2003). As prescribed at 511.204(d), substitute the 
following paragraphs (a)(3) and (b) for (a)(3) and (b) of the basic 
clause:

    (a)(3) Ordering activity order or requisition number;
    (b) When payment will be made by Ordering activity commercial credit 
card, in addition to the information in (a) above, the packing list or 
shipping document shall include:
    (1) Cardholder name and telephone number; and
    (2) The term ``Credit Card.''

[64 FR 37229, July 9, 1999, as amended at 68 FR 24379, May 7, 2003; 74 
FR 66255, Dec. 15, 2009]



552.211-78  [Reserved]



552.211-79  Acceptable Age of Supplies.

    As prescribed in 511.404(a)(1), insert the following clause:

                  Acceptable Age of Supplies (FEB 1996)

    The supplies furnished under this contract shall not be more than __ 
months old, beginning with the first full month after the date of 
manufacture marked on the container. For the purpose of this clause, 
supplies shall be considered to be furnished (1) when they are offered 
to the Government for inspection and testing, or (2) on the date of 
shipment if shipment is authorized to be made without prior inspection 
by the Government. If the age of the supplies furnished under this 
contract is greater than the specified period, the Government may 
exercise its right to reject the supplies.

                             (End of clause)

    Alternate I (FEB 1996). For items having a limited shelf-life, the 
sentence below should be substituted for the first sentence of the basic 
clause when authorized:

    The supplies furnished under this contract shall not be more than __ 
days old, beginning with the date of manufacture (month, day, year) 
marked on the container.

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



552.211-80  Age on Delivery.

    As prescribed in 511.404(a)(2) insert the following clause:

                       Age on Delivery (FEB 1996)

    Included in the description of each shelf-life item is a statement 
regarding the ``age on delivery.'' The age of the item(s) shall not 
exceed the number of months shown in the item description, counted from 
the first day of the month after the month of manufacture to the date of 
delivery to the specified delivery point(s). If the age of the supplies 
delivered under this contract is greater than the number of months 
shown, the Government may exercise its right to reject the supplies.

[[Page 208]]

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



552.211-81  Time of Shipment.

    As prescribed in 511.404(b), insert the following clause:

                       Time of Shipment (FEB 1996)

    Shipment is required within ___ calendar days after receipt of 
order.

                             (End of clause)

    Alternate I (FEB 1996). If the contract will require shipment more 
than 45 calendar days after receipt of the order, the following 
paragraph should be added to the basic clause.

    Each delivery order will specify that shipment is required no later 
than the number of days shown above. If such order also states that 
``Early Shipment is Precluded,'' the Contractor agrees to make shipment 
no sooner than ___ calendar days after receipt of order. Earlier 
shipments may result in nonacceptance of the supplies at the delivery 
point at the time of arrival.

    (The second number to be inserted should be 15 calendar days less 
than the first number.)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



552.211-82  [Reserved]



552.211-83  Availability for Inspection, Testing, and Shipment/Delivery.

    As prescribed in 511.404(c), insert the following clause:

 Availability for Inspection, Testing, and Shipment/Delivery (FEB 1996)

    (a) The Government requires that the supplies be made available for 
inspection and testing within ____*____ calendar days after receipt of 
[Insert ``Notice of Award'' or ``order''], and be [Insert ``shipped'' or 
``delivered''] within ____*____ calendar days after receipt of (1) 
notice of approval and release by the Government inspector or (2) 
authorization to ship without Government inspection.
    (b) Failure to make supplies available for inspection and testing or 
to [Insert ``ship'' or ``deliver''] as required by this clause may 
result in termination of this contract for default.

                             (End of clause)

    Alternate I (FEB 1996). If the contract is for stock items, the 
Contracting Officer shall insert ``shipped'' or ``ship'' in the basic 
clause, add the following paragraph (b) and redesignate paragraph (b) of 
the basic clause as paragraph (c).

    (b) If notice of approval and release by the Government inspector or 
authorization to ship without Government inspection is received before 
____*____ calendar days after receipt of the [Insert ``Notice of Award'' 
or ``order''], receipt of such notice shall be deemed to be received on 
the ____*____ calendar day after receipt of [Insert ``Notice of Award'' 
or ``order'']. Shipments shall not be made before the ____*____ calendar 
day after receipt of the [Insert ``Notice of Award'' or ``order''] 
unless authorized in writing by the Contracting Officer.
    * Entries are normally the same number of days specified for 
availability.

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



552.211-84  [Reserved]



552.211-85  Consistent pack and package requirements.

    As prescribed in 511.204(b)(4), insert the following clause:

           Consistent Pack and Package Requirements (JAN 2010)

    The Contractor is advised that the Government will, where possible, 
order in full shipping containers and/or unitized loads. If volume 
warrants, the Government may also order in truckload or carload 
quantities provided such quantities do not exceed the maximum order 
limitation of this contract.
    When the number of items per unit container, intermediate container 
and/or shipping container is not specified for an item, the offeror will 
state, in the spaces provided in the schedule of items, the number of 
items to be provided in each container. The quantities which are 
accepted at the time of award shall remain in effect throughout the term 
of the contract unless the Contracting Officer approves in writing a 
request by the Contractor to change the package quantities. Requests for 
changes shall be directed to the Contracting Officer or Administrative 
Contracting Officer, whichever is applicable.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009, as amended at 81 FR 36430, June 6, 2016]

[[Page 209]]



552.211-86  Maximum weight per shipping container.

    As prescribed in 511.204(b)(5), insert the following clause:

            Maximum Weight per Shipping Container (JAN 2010)

    In no instance shall the weight of a shipping container and its 
contents exceed 23 kilograms (51 pounds), except when caused by--
    (1) The weight of a single item within the shipping container;
    (2) A prescribed quantity per pack for an item per shipping 
container; or
    (3) A definite weight limitation set forth in the purchase 
description.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009, as amended at 81 FR 36430, June 6, 2016]



552.211-87  Export packing.

    As prescribed in 511.204(b)(6), insert the following clause:

                        Export Packing (JAN 2010)

    (a) Offerors are requested to quote, in the pricelist accompanying 
their offer (or by separate attachment), additional charges or net 
prices covering delivery of the items furnished with commercial or 
military export packing. Military export packing, if offered, shall be 
in accordance with Mil-Std-2073-1 Level A or B as specified. If 
commercial export packing is offered, the offer or pricelist shall 
include detailed specifications describing the packing to be furnished 
at the price quoted.
    (b) Ordering activities will not be obligated to utilize the 
Contractor's services for export packing accepted under this 
solicitation, and they may obtain such services elsewhere if desired. 
However, the Contractor shall furnish items export packed when such 
packing is specified on the purchase order.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009, as amended at 81 FR 36430, June 6, 2016]



552.211-88  Vehicle export preparation.

    As prescribed in 511.204(b)(7), insert the following clause:

                  Vehicle Export Preparation (JAN 2010)

    Vehicles shall be prepared for export on wheels, unboxed, unless 
otherwise specified in the Schedule of Items. All parts and equipment 
easily removable (subject to pilferage) shall be enclosed in a box 
substantially secured to the vehicle (inside body if feasible) in such a 
manner as to minimize the possibility of loss or damage while in transit 
to ultimate destination.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009, as amended at 81 FR 36430, June 6, 2016]



552.211-89  Non-manufactured wood packaging material for export.

    As prescribed in 511.204(b)(8), insert the following clause:

     Non-Manufactured Wood Packaging Material for Export (JUL 2016)

    (a) Definitions:
    IPPC Country: Countries of the European Union (EU) or any other 
country endorsing the International Plant Protection Convention (IPPC) 
``Guidelines for Regulating Wood Packaging Material in International 
Trade,'' approved March 15, 2002. A listing of countries participating 
in the IPPC is found at http://www.aphis.usda.gov/import_export/plants/
plant_exports/wpm/country/index.shtml.
    Non-manufactured wood, is also called solid wood and defined as wood 
packing other than that comprised wholly of wood-based products such as 
plywood, particle board, oriented strand board, veneer, wood wool, and 
similar materials, which has been created using glue, heat and pressure 
or a combination thereof.
    Packaged material, and solid wood packing material (SWPM), for 
purposes of this clause, is defined as each separate and distinct 
material that by itself or in combination with other materials forms the 
container providing a means of protecting and handling a product. This 
includes, but is not limited to, pallets, dunnage, crating, packing 
blocks, drums, load boards, pallet collars, and skids.
    (b) Non-manufactured wood pallets and other non-manufactured wood 
packaging material used to pack items for delivery to or through IPPC 
countries must be marked and properly treated in accordance with IPPC 
guidelines.
    (c) This requirement applies whether the shipment is direct to the 
end user or through a Government designated consolidation point. 
Packaging that does not conform to IPPC guidelines will be refused 
entry, destroyed or treated prior to entry.
    (d) For Department of Defense distribution facilities or freight 
consolidation points, all non-manufactured wood pallets or packaging 
material with a probability of entering countries endorsing the IPPC 
Guidelines must be treated and marked in accordance with DLAD 47.305-1 
(available at http://farsite.hill.af.mil/archive/Dlad/Rev5/

[[Page 210]]

PART47.htm''), and MIL-STD-2073-1, Standard Practice for Military 
Packaging (and any future revision).
    (e) Pallets and packing material shipped to FAS distribution 
facilities designated for possible delivery to the countries endorsing 
the IPPC Guidelines will comply with DLAD 47.305-1, and MIL-STD-2073-1.
    (f) Delays in delivery caused by non-complying pallets or wood 
package material will not be considered as beyond the control of the 
Contractor. Any applicable Government expense incurred as a result of 
the Contractor's failure to provide appropriate pallets or package 
material shall be reimbursed by the Contractor. Expenses may include the 
applicable cost for repackaging, handling and return shipping, or the 
destruction of solid wood packaging material.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009, as amended at 81 FR 36430, June 6, 2016]



552.211-90  Small parts.

    As prescribed in 511.204(b)(9), insert the following clause:

                         Small Parts (JAN 2010)

    All small parts required to be furnished with machines covered by 
contracts resulting from this solicitation shall be packed in envelopes, 
sealed, identified with part numbers and quantity on outside of 
envelopes. Larger parts must be individually tagged and identified with 
part number on face of tag.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



552.211-91  Vehicle decals, stickers, and data plates.

    As prescribed in 511.204(b)(10), insert the following clause:

          Vehicle Decals, Stickers, and Data Plates (JAN 2010)

    Unless otherwise specified, caution plates/decals shall be 
conspicuously installed for all equipment requiring such notices. 
Vehicles for civil agencies shall be provided with the manufacturer's 
current warranty legend imprinted on decalcomania, and applied in a 
visible area of the engine compartment. In addition, a decal or sticker 
shall provide at least the following information: contract number; 
purchase order number; date of delivery, month and year; and the 
warranty time, in month and miles.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



552.211-92  Radio Frequency Identification (RFID) using passive tags.

    As prescribed in 511.204(b)(11), insert the following clause:

   Radio Frequency Identification (RFID) Using Passive Tags (JAN 2010)

    Radio Frequency Identification shall be required on all non-bulk 
shipments to the Defense Logistics Agency (DLA) or Department of Defense 
(DoD) destinations. Shipments shall be tagged in accordance with 48 CFR 
clause 252.211-7006. Shipments to GSA Distribution Centers with final 
destinations to DLA and DoD shall be in compliance to 48 CFR 252.211-
7006. Copies may be obtained from http://www.access.gpo.gov/nara/cfr/
cfr-table-search.html.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



552.211-93  [Reserved]



552.211-94  Time of delivery.

    As prescribed at 511.404(d), insert the following clause:

                       Time of Delivery (JAN 2010)

    An ``X'' mark in the left hand block shall be considered a mandatory 
requirement to be fulfilled by the contractor.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                           The Contractor will ship contract item(s) to
                            the Federal Acquisition Service (FAS)
                            stocking points identified in the delivery
                            order at its discretion in order to maintain
                            the required stock levels within the minimum
                            and maximum requirements provided in the
                            weekly status report.
                           Delivery is required to be made at
                            destination within *_____* calendar days
                            after receipt of order for deliveries to a
                            GSA facility.
                           Orders under this contract may require direct
                            delivery to other agencies. Orders for
                            direct delivery must be shipped and
                            delivered within the time specified in
                            blocks below.
                           Shipment must be made with *_____* days after
                            receipt of order.

[[Page 211]]

 
                           In addition to block above the Contractor
                            must also ensure that delivery will be made
                            within *_____* days after receipt of order.
------------------------------------------------------------------------

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



552.212-4  Contract Terms and Conditions--Commercial Items.

    Alternate II (FAR Deviation) (NOV 2009). When a commercial item 
contract is contemplated and the contract will include the clause at FAR 
52.212-4, insert this Alternate II instead of subparagraph (g)(2) of the 
FAR clause.

    (g)(2) The due date for making invoice payments by the designated 
payment office is the later of the following two events:
    (i) The 10th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 10th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (ii) The 10th day after Government acceptance of supplies delivered 
or services performed by the Contractor.

[74 FR 54918, Oct. 26, 2009]



552.212-70  [Reserved]



552.212-71  Contract Terms and Conditions Applicable to GSA Acquisition
of Commercial Items.

    As prescribed in 512.301(a)(2), insert the following clause:

     Contract Terms and Conditions Applicable to GSA Acquisition of 
                       Commercial Items (JUN 2016)

    (a) The Contractor agrees to comply with any clause that is 
incorporated herein by reference to implement agency policy applicable 
to acquisition of commercial items or components. The clause in effect 
based on the applicable regulation cited on the date the solicitation is 
issued applies unless otherwise stated herein. The clauses in paragraph 
(b) of this section are incorporated by reference:
    [The Contracting Officer should check the clauses that apply or 
delete the clauses that do not apply from the list. The Contracting 
Officer may add the date of the clause if desired for clarity.]
    (b) Clauses.

__ 552.203-71  Restriction on Advertising
__ 552.211-73  Marking
__ 552.2215-70  Examination of Records by GSA
__ 552.215-71  Examination of Records by GSA (Multiple Award Schedule)
__ 552.215-72  Price Adjustment--Failure to Provide Accurate Information
__ 552.219-70  Allocation of Orders--Partially Set-Aside Items
__ 552.228-70  Workers' Compensation Laws
__ 552.229-70  Federal, State, and Local Taxes
__ 552.232-8  Discounts for Prompt Payment
__ 552.232-23  Assignment of Claims
__ 552.232-71  Adjusting Payments
__ 552.232-72  Final Payment
__ 552.232-73  Availability of Funds
__ 552.232-78  Payment Information
__ 552.237-71  Qualifications of Employees
__ 552.238-71  Submission and Distribution of Authorized FSS Schedule 
Price List
__ 552.238-74  Industrial Funding Fee and Sales Reporting
__ 552.238-75  Price Reductions
__ 552.238-81  Modifications  (Multiple Award Schedule)
__ 552.242-70  Status Report of Orders and Shipments
__ 552.246-73  Warranty--Multiple  Award Schedule
__ 552.246-76  Warranty of Pesticides

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000; 68 
FR 41288, July 11, 2003; 79 FR 62884, Oct. 21, 2014; 81 FR 41137, June 
23, 2016]



552.212-72  Contract Terms and Conditions Required To Implement Statutes
or Executive Orders Applicable to GSA Acquisition of Commercial Items.

    As prescribed in 512.301(a)(3), insert the following clause:

    Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders Applicable to GSA Acquisition of Commercial Items (JUN 
                                  2015)

    The Contractor agrees to comply with any provision or clause that is 
incorporated herein by reference to implement provisions of law or 
Executive Orders applicable to acquisition of commercial items or 
components. The provision or clause in effect based on the applicable 
regulation cited on the date the

[[Page 212]]

solicitation is issued applies unless otherwise stated herein. The 
following provisions and clauses are incorporated by reference:

[The contracting officer should either check the provisions and clauses 
that apply or delete the provisions and clauses that do not apply from 
the list. The contracting officer may add the date of the provision or 
clause if desired for clarity.]
    (a) Provisions.

__ 552.223-72  Hazardous Material Information

    (b) Clauses.
__552.223-70  Hazardous Substances.
__552.223-71  Nonconforming Hazardous Material.
__552.223-73  Preservation, Packaging, Packing, Marking and Labeling of 
          Hazardous Materials (HAZMAT) for Shipments.
__552.238-70  Identification of Electronic Office Equipment Providing 
          Accessibility for the Handicapped.
__552.238-72  Identification of Products That Have Environmental 
          Attributes.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000; 68 
FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003; 80 FR 36248, June 
24, 2015]



552.212-73  [Reserved]



552.214-70  ``All or None'' Bids.

    As prescribed in 514.201-6, insert the following provision:

                     ``All or None'' Bids (OCT 2009)

    (a) The Government reserves the right to evaluate bids and make 
awards on an ``all or none'' basis as provided below.
    (b) A bid submitted on an ``all or none'' or similar basis will be 
evaluated as follows: The lowest acceptable bid exclusive of the ``all 
or none'' bid will be selected with respect to each item (or group of 
items when the solicitation provides for aggregate awards) and the total 
cost of all items thus determined shall be compared with the total of 
the lowest acceptable ``all or none'' bid. Award will be made to result 
in the lowest total cost to the Government.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 74 FR 47740, Sept. 17, 2009]



552.214-71  [Reserved]



552.214-72  Bid Sample Requirements.

    As prescribed in 514.202-4(a)(3), insert the following provision:

                   Bid Sample Requirements (OCT 2009)

    This provision supplements FAR 52.214-20, which is incorporated by 
reference. Samples shall be from the production of the manufacturer 
whose products will be supplied under resultant contracts.
    (a) Two bid samples are required for each of the following items in 
this solicitation:

________________________________________________________________________
    (b) Two representative samples shall be submitted for each of the 
following items upon which a bid is submitted:

------------------------------------------------------------------------
                                            Acceptable representative
                 Items                               samples
------------------------------------------------------------------------
                                         ...............................
                                         ...............................
------------------------------------------------------------------------

    Note: Bidders that propose to furnish an item or group of items from 
more than one manufacturer or production point must submit two samples 
from the production of each manufacturer or production point.
    (c) Samples will be evaluated to determine compliance with all 
characteristics listed below:

------------------------------------------------------------------------
        Subjective characteristics            Objective characteristics
------------------------------------------------------------------------
                                            ............................
                                            ............................
------------------------------------------------------------------------

    (d) Forward samples addressed to the Sample Room indicated below. 
Except for samples delivered by U.S. Mail, deliveries will be accepted 
between the hours of __________ Mondays through Fridays, official 
holidays excluded.
    Caution: Use proper address for method of shipment selected.

Mail and Parcel Post
(Insert Address of Bid Sample Room)
Freight or Express
(Insert address of Bid Sample Room)
    (e) Contracting Officer insert address.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 74 FR 47740, Sept. 17, 2009]



552.215-70  Examination of Records by GSA.

    As prescribed in 515.209-70(a), insert the following clause:

[[Page 213]]

                Examination of Records by GSA (JUN 2016)

    The Contractor agrees that the Administrator of General Services or 
any duly authorized representatives shall, until the expiration of 3 
years after final payment under this contract, or of the time periods 
for the particular records specified in Subpart 4.7 of the Federal 
Acquisition Regulation (48 CFR 4.7), whichever expires earlier, have 
access to and the right to examine any books, documents, papers, and 
records of the Contractor involving transactions related to this 
contract or compliance with any clauses thereunder. The Contractor 
further agrees to include in all its subcontracts hereunder a provision 
to the effect that the subcontractor agrees that the Administrator of 
General Services or any authorized representatives shall, until the 
expiration of 3 years after final payment under the subcontract, or of 
the time periods for the particular records specified in Subpart 4.7 of 
the Federal Acquisition Regulation (48 CFR 4.7), whichever expires 
earlier, have access to and the right to examine any books, documents, 
papers, and records of such subcontractor involving transactions related 
to the subcontract or compliance with any clauses thereunder. The term 
``subcontract'' as used in this clause excludes (a) purchase orders not 
exceeding the simplified adquisition threshold and (b) subcontracts or 
purchase orders for public utility services at rates established for 
uniform applicability to the general public.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 81 FR 1533, Jan. 13, 2016; 81 
FR 36425, June 6, 2016]



552.215-71  Examination of Records by GSA (Multiple Award Schedule).

    As prescribed in 515.209-70(c), insert the following clause:

   Examination of Records by GSA (Multiple Award Schedule) (JUL 2003)

    The Contractor agrees that the Administrator of General Services or 
any duly authorized representative shall have access to and the right to 
examine any books, documents, papers and records of the contractor 
involving transactions related to this contract for overbillings, 
billing errors, compliance with the Price Reduction clause and 
compliance with the Industrial Funding Fee and Sales Reporting clause of 
this contract. This authority shall expire 3 years after final payment. 
The basic contract and each option shall be treated as separate 
contracts for purposes of applying this clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 68 FR 41288, July 11, 2003]



552.215-72  Price Adjustment--Failure To Provide Accurate Information.

    As prescribed in 515.408(d), insert the following clause:

  Price Adjustment--Failure To Provide Accurate Information (AUG 1997)

    (a) The Government, at its election, may reduce the price of this 
contract or contract modification if the Contracting Officer determines 
after award of this contract or contract modification that the price 
negotiated was increased by a significant amount because the Contractor 
failed to:
    (1) Provide information required by this solicitation/contract or 
otherwise requested by the Government; or
    (2) Submit information that was current, accurate, and complete; or
    (3) Disclose changes in the Contractor's commercial pricelist(s), 
discounts or discounting policies which occurred after the original 
submission and prior to the completion of negotiations.
    (b) The Government will consider information submitted to be 
current, accurate and complete if the data is current, accurate and 
complete as of 14 calendar days prior to the date it is submitted.
    (c) If any reduction in the contract price under this clause reduces 
the price for items for which payment was made prior to the date of the 
modification reflecting the price reduction, the Contractor shall be 
liable to and shall pay the United States--
    (1) The amount of the overpayment; and
    (2) Simple interest on the amount of such overpayment to be computed 
from the date(s) of overpayment to the Contractor to the date the 
Government is repaid by the Contractor at the applicable underpayment 
rate effective each quarter prescribed by the Secretary of Treasury 
under 26 U.S.C. 6621(a)(2).
    (d) Failure to agree on the amount of the decrease shall be resolved 
as a dispute.
    (e) In addition to the remedy in paragraph (a) of this clause, the 
Government may terminate this contract for default. The rights and 
remedies of the Government specified herein are not exclusive, and are 
in addition to any other rights and remedies provided by law or under 
this contract.

[[Page 214]]

                             (End of clause)



552.216-70  Economic Price Adjustment--FSS Multiple Award Schedule
Contracts.

    As prescribed in 516.203-4(a), insert the following clause:

 Economic Price Adjustment--FSS Multiple Award Schedule Contracts (SEP 
                                  1999)

    Price adjustments include price increases and price decreases. 
Adjustments will be considered as follows:
    (a) Contractors shall submit price decreases anytime during the 
contract period in which they occur. Price decreases will be handled in 
accordance with the provisions of the Price Reduction Clause.
    (b) Contractors may request price increases under the following 
conditions:
    (1) Increases resulting from a reissue or other modification of the 
Contractor's commercial catalog/pricelist that was used as the basis for 
the contract award.
    (2) Only three increases will be considered during the contract 
period.
    (3) Increases are requested after the first 30 days of the contract 
period and prior to the last 60 days of the contract period.
    (4) At least 30 days elapse between requested increases.
    (c) The aggregate of the increases in any contract unit price under 
this clause shall not exceed ___* percent of the original contract unit 
price. The Government reserves the right to raise this ceiling where 
changes in market conditions during the contract period support an 
increase.
    (d) The following material shall be submitted with the request for a 
price increase:
    (1) A copy of the commercial catalog/pricelist showing the price 
increase and the effective date for commercial customers.
    (2) Commercial Sales Practice format regarding the Contractor's 
commercial pricing practice relating to the reissued or modified 
catalog/price-list, or a certification that no change has occurred in 
the data since completion of the initial negotiation or a subsequent 
submission.
    (3) Documentation supporting the reasonableness of the price 
increase.
    (e) The Government reserves the right to exercise one of the 
following options:
    (1) Accept the Contractor's price increases as requested when all 
conditions of (b), (c), and (d) of this clause are satisfied;
    (2) Negotiate more favorable discounts from the new commercial 
prices when the total increase requested is not supported; or,
    (3) Remove the product(s) from contract involved pursuant to the 
Cancellation Clause of this contract, when the increase requested is not 
supported.
    (f) The contract modification reflecting the price adjustment shall 
be signed by the Government and made effective upon receipt of 
notification from the Contractor that the new catalog/pricelist has been 
mailed to the addresses previously furnished by the Contracting Officer, 
provided that in no event shall such price adjustment be effective prior 
to the effective date of the commercial price increases. The increased 
contract prices shall apply to delivery orders issued to the Contractor 
on or after the effective date of the contract modification.

                             (End of clause)

    * Insert the percent appropriate at the time the solicitation is 
issued. This percentage should normally be 10 percent, unless based on a 
trend established by an appropriate index such as the Producer Prices 
and Price Index during the most recent 6-month period indicates that a 
different percentage is more appropriate. Any ceiling other than 10 
percent must be approved by the contracting director.

    Alternate I (SEP 1999). The following is substituted for paragraphs 
(b) and (c) of the clause:

    (b) Contractors may request price increases to be effective on or 
after the first 12 months of the contract period providing all of the 
following conditions are met:
    (1) Increases resulting from a reissue or other modification of the 
Contractor's commercial catalog/pricelist that was used as the basis for 
the contract award.
    (2) No more than three increases will be considered during each 
succeeding 12-month period of the contract. (For succeeding contract 
periods of less than 12 months, up to three increases will be considered 
subject to the other conditions of this subparagraph (b)).
    (3) Increases are requested before the last 60 days of the contract 
period.
    (4) At least 30 days elapse between requested increases.
    (c) In any contract period during which price increases will be 
considered, the aggregate of the increases during any 12-month period 
shall not exceed *____ percent of the contract unit price in effect at 
the end of the preceding 12-month period. The Government reserves the 
right to raise the ceiling when market conditions during the contract 
period support such a change.
    * Insert the percentage appropriate at the time the solicitation is 
issued. This percentage should be determined based on the trend 
established by an appropriate index such as the Producer Prices and

[[Page 215]]

Price Index. A ceiling of more than 10 percent must be approved by the 
Contracting Director.

[64 FR 37229, July 9, 1999; 64 FR 49844, Sept. 14, 1999]



552.216-71  Economic Price Adjustment--Special Order Program Contracts.

    As prescribed in 516.203-4(a), insert the following clause:

  Economic Price Adjustment--Special Order Program Contracts (AUG 2010)

    (a) ``Producer Price Index'' (PPI), as used in this clause, means 
the originally released index, not seasonally adjusted, published by the 
Bureau of Labor Statistics, U.S. Department of Labor (Labor) for product 
code ____ found under Table ____.
    (b) During the term of the contract, the award price may be adjusted 
once during each 12-month period upward or downward. However, if an 
upward adjustment, a maximum of ___*___ percent shall apply. Any price 
adjustment for the product code shall be based upon the percentage 
change in the PPI released in the month prior to the initial month of 
the contract period specified in the solicitation for sealed bidding or 
the month prior to award in negotiation (the base index) and the PPI 
released 12 months later (the updated index). The formula for 
determining the Adjusted Contract Price (ACP) applicable to shipments 
for the balance of the contract period is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.000

    (c) If the PPI is not available for the month of the base index or 
the updated index, the month with the most recently published PPI prior 
to the month determining the base index or updated index shall be used.
    (d) If a product code is discontinued, the Government and the 
Contractor will mutually agree to substitute a similar product code. If 
Labor designates an index with a new title and/or code number as 
continuous with the product code specified above, the new index shall be 
used.
    (e) Unless the Contractor's written request for a price adjustment 
resulting from the application of the formula in (b) above is received 
by the Contracting Officer within 30 calendar days of the release of the 
updated index, the Contractor shall have waived its right to an upward 
price adjustment for the balance of the contract. Alternatively, the 
Contracting Officer will unilaterally adjust the award price downward 
when appropriate using the updated index defined in (b) above.
    (f) Price adjustments shall be effective upon execution of a 
contract modification by the Government or on the 31st day following the 
release of the updated index, whichever is later, shall indicate the 
updated index and percent of change as well as the ACP, and shall not 
apply to delivery orders issued before the effective date.

                             (End of clause)

    Alternate I (AUG 2010). As prescribed in 516.203-4(a)(1) and (2), 
substitute the following paragraphs (b), (e), and (f) for paragraphs 
(b), (e), and (f) of the basic clause:

    (b) Once during each 12-month period, the contract price may be 
adjusted upward or downward a maximum of ___*___ percent.
    (1) For the first option period, any price adjustment for the 
product code shall be based upon the percentage change in the PPI 
released in the month prior to the initial month of the contract period 
specified in the solicitation for sealed bidding or the month prior to 
award in negotiation (the base index) and the PPI released in the third 
month before completion of the initial contract period stated in the 
solicitation (the updated index). This initial contract period may be 
less than 12 months. The formula for determining the Adjusted Contract 
Price (ACP) applicable to shipments during the first option period is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.001

    (2) For any subsequent option period, the price adjustment shall be 
the percentage change between the previously updated index (the new base 
index) and the PPI released 12 months later (the most recent updated 
index). This percentage shall be applied to the Current Contract Price 
(CCP). The formula for determining the ACP applicable to shipments for 
the subsequent option period(s) is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.002

    (e) Unless the Contractor's written request for a price adjustment 
resulting from the application of the formulas in (b) (1) or (2) above 
is received by the Contracting Officer within 30 calendar days of the 
date of the Government's preliminary written notice of its intent to 
exercise the option, the Contractors shall have waived its right to an 
upward price adjustment for that option period. Alternatively, the 
Contracting Officer in its written notice shall exercise the option

[[Page 216]]

at the CCP or at a reduced price when appropriate using the formulas in 
(b) (1) or (2) above.
    (f) Price adjustments shall be effected by execution of a contract 
modification by the Government indicating the most recent updated index 
and percent of change and shall apply to delivery orders placed on or 
after the first day of the option period.

    Alternate II (AUG 2010). As prescribed in 516.203-4(a)(2), add the 
following paragraph (g) to the basic clause.

    (g) No price adjustment will be made unless the percentage change in 
the PPI is at least ___*___ percent.
    ** The Contracting Officer should insert a lower percent than the 
maximum percentage stated in paragraph (b) of the clause.

    * The appropriate percentage should be determined based upon the 
historical trend in the PPI for the product code. A ceiling of more than 
10 percent must be approved by the Contracting Director.

[64 FR 37229, July 9, 1999, as amended at 75 FR 41096, July 15, 2010]



552.216-72  Placement of Orders.

    As prescribed in 516.506(a), insert the following clause:

                     Placement of Orders (JAN 2016)

    (a) Delivery orders (orders) will be placed by:
    [Contracting Officer insert names of Federal agencies]
    (b) Orders may be placed through Electronic Data Interchange (EDI) 
or mailed in paper form. EDI orders shall be placed using the American 
National Standards Institute (ANSI) X12 Standard for Electronic Data 
Interchange (EDI) format.
    (c) If the Contractor agrees, General Services Administration's 
Federal Acquisition Service (FAS) will place all orders by EDI using 
computer-to-computer EDI. If computer-to-computer EDI is not possible, 
FAS will use an alternative EDI method allowing the Contractor to 
receive orders by facsimile transmission. Subject to the Contractor's 
agreement, other agencies may place orders by EDI.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into one or more Trading Partner 
Agreements (TPA) with each Federal agency placing orders electronically 
in order to ensure mutual understanding by the parties of certain 
electronic transaction conventions and to recognize the rights and 
responsibilities of the parties as they apply to this method of placing 
orders. The TPA must identify, among other things, the third party 
provider(s) through which electronic orders are placed, the transaction 
sets used, security procedures, and guidelines for implementation. 
Federal agencies may obtain a sample format to customize as needed from 
the office specified in (g) below.
    (e) The Contractor shall be responsible for providing its own 
hardware and software necessary to transmit and receive data 
electronically. Additionally, each party to the TPA shall be responsible 
for the costs associated with its use of third party provider services.
    (f) Nothing in the TPA will invalidate any part of this contract 
between the Contractor and the General Services Administration. All 
terms and conditions of this contract that otherwise would be applicable 
to a mailed order shall apply to the electronic order.
    (g) The basic content and format of the TPA will be provided by: 
General Services Administration, Office of the Chief Information Officer 
(I). Contact information can be found at: http://www.gsa.gov/portal/
category/21404.

                             (End of clause)

    Alternate I (AUG 2010). As prescribed in 516.506(a), substitute the 
following paragraphs (a), (b), (c), and (d) for paragraphs (a), (b), 
(c), and (d) of the basic clause:

    (a) All delivery orders (orders) under this contract will be placed 
by the General Services Administration's Federal Acquisition Service 
(FAS). The Contractor is not authorized to accept orders from any other 
agency. Violation of this restriction may result in termination of the 
contract pursuant to the default clause of this contract.
    (b) All orders shall be placed by Electronic Data Interchange (EDI) 
using the American National Standards Institute (ANSI) X12 Standard for 
Electronic Data Interchange (EDI) format.
    (c) If the Contractor agrees, transmission will be computer-to-
computer EDI. If computer-to-computer EDI is not possible, FAS will use 
an alternative EDI method allowing the Contractor to receive orders by 
facsimile transmission.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into a Trading Partner Agreement 
(TPA) with FAS in order to ensure mutual understanding by the parties of 
certain electronic transaction conventions and to recognize the rights 
and responsibilities of the parties as they apply to this method of 
placing orders. The TPA must identify among other things, the third 
party provider(s) through which electronic orders

[[Page 217]]

are placed, the transaction sets used, security procedures, and 
guidelines for implementation.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24380, May 7, 2003; 69 
FR 28065, May 18, 2004; 72 FR 4654, Feb. 1, 2007; 75 FR 41096, July 15, 
2010; 81 FR 1533, Jan. 13, 2016]



552.216-73  Ordering Information.

    As prescribed in 516.506(c), insert the following provision:

                     Ordering Information (AUG 2010)

    (a) In accordance with the Placement of Orders clause of this 
solicitation, the offeror elects to receive orders placed by GSA's 
Federal Acquisition Service (FAS) by either 
 facsimile transmission or 
 computer-to-computer Electronic Data Interchange (EDI).
    (b) An offeror electing to receive computer-to-computer EDI is 
requested to indicate below the name, address, and telephone number of 
the representative to be contacted regarding establishment of an EDI 
interface.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (c) An offeror electing to receive orders by facsimile transmission 
is requested to indicate below the telephone number(s) for facsimile 
transmission equipment where orders should be forwarded.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (d) For mailed orders, the offeror is requested to include the 
postal mailing address(es) where paper form orders should be mailed.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
    (e) Offerors marketing through dealers are requested to indicate 
below whether those dealers will be participating in the proposed 
contract.
    Yes (  ) No (  )
    If ``yes'' is checked, ordering information to be inserted above 
shall reflect that in addition to offeror's name, address, and facsimile 
transmission telephone number, orders can be addressed to the offeror's 
name, c/o nearest local dealer. In this event, two copies of a list of 
participating dealers shall accompany this offer, and shall also be 
included in Contractor's Federal Supply Schedule pricelist.

                           (End of provision)

    Alternate I (SEP 1999). As prescribed in 516.506(c), delete 
paragraph (d) of the basic provision.

[64 FR 37229, July 9, 1999, as amended at 72 FR 4654, Feb. 1, 2007; 75 
FR 41096, July 15, 2010]



552.216-74  Task-Order and Delivery-Order Ombudsman.

    As prescribed in 516.506(b), insert the following clause:

           Task-Order and Delivery-Order Ombudsman (JAN 2017)

    (a) GSA has designated a Task-Order and Delivery-Order Ombudsman who 
will review complaints from contractors and ensure that they are 
afforded a fair opportunity for consideration in the award of task or 
delivery orders under Indefinite Delivery/Indefinite Quantity (ID/IQ) 
contracts, consistent with the procedures in the contract. Written 
complaints shall be submitted to the Ombudsman, with a copy to the 
Contracting Officer.
    (b) In the case that the contractor is not satisfied with the 
resolution of the complaint by the GSA Task-Order and Delivery-Order 
Ombudsman, the contractor may follow the procedures outlined in subpart 
33.1.
    (c) The GSA Task-Order and Delivery-Order Ombudsman is located at 
the General Services Administration (GSA), Office of Government-wide 
Policy (OGP), Office of Acquisition Policy (MV). Contact information for 
the GSA Task-Order and Delivery-Order Ombudsman can be found at: http://
www.gsa.gov/ombudsman.

(End of Clause)

[75 FR 41096, July 15, 2010, as amended at 81 FR 1533, Jan. 13, 2016; 82 
FR 2250, Jan. 9, 2017]



552.216-75  Transactional Data Reporting.

    As prescribed in 516.506(d), insert the following provision:

                 Transactional Data Reporting (JUN 2016)

    (a) Definition. Transactional data encompasses the historical 
details of the products or services delivered by the Contractor during 
the performance of task or delivery orders issued against this contract.
    (b) Reporting of Transactional Data. The Contractor must report all 
transactional data under this contract as follows:
    (1) The Contractor must electronically report transactional data by 
utilizing the automated reporting system at an Internet Web site 
designated by the General Services Administration (GSA) or by uploading 
the data according to GSA instructions. GSA

[[Page 218]]

will post registration instructions and reporting procedures on the 
Vendor Support Center Web site, https://vsc.gsa.gov. The reporting 
system Web site address, as well as registration instructions and 
reporting procedures, will be provided at the time of award or inclusion 
of this clause in the contract.
    (2) The Contractor must provide, at no additional cost to the 
Government, the following transactional data elements, as applicable:
    (i) Contract or Blanket Purchase Agreement (BPA) Number.
    (ii) Delivery/Task Order Number/Procurement Instrument Identifier 
(PIID).
    (iii) Non Federal Entity.
    (iv) Description of Deliverable.
    (v) Manufacturer Name.
    (vi) Manufacturer Part Number.
    (vii) Unit Measure (each, hour, case, lot).
    (viii) Quantity of Item Sold.
    (ix) Universal Product Code.
    (x) Price Paid per Unit.
    (xi) Total Price.
    Note to paragraph (b)(2): The Contracting Officer may add data 
elements to the standard elements listed in paragraph (b)(2) of this 
section with the approvals listed in GSAM 507.105(c)(3).
    (3) The Contractor must report transactional data within 30 calendar 
days from the last calendar day of the month. If there was no contract 
activity during the month, the Contractor must submit a confirmation of 
no reportable transactional data within 30 calendar days of the last 
calendar day of the month.
    (4) The Contractor must report the price paid per unit, total price, 
or any other data elements with an associated monetary value listed in 
(b)(2) of this section, in U.S. dollars.
    (5) The Contractor must maintain a consistent accounting method of 
transactional data reporting, based on the Contractor's established 
commercial accounting practice.
    (6) Reporting Points. (i) The acceptable points at which 
transactional data may be reported include--
    (A) Issuance of an invoice; or
    (B) Receipt of payment.
    (ii) The Contractor must determine whether to report transactional 
data on the basis of invoices issued or payments received.
    (7) The Contractor must continue to furnish reports, including 
confirmation of no transactional data, through physical completion of 
the last outstanding task or delivery order issued against the contract.
    (8) Unless otherwise expressly stated by the ordering activity, 
orders that contain classified information or other information that 
would compromise national security are exempt from this reporting 
requirement.
    (9) This clause does not exempt the Contractor from fulfilling 
existing reporting requirements contained elsewhere in the contract.
    (10) GSA reserves the unilateral right to change reporting 
instructions following 60 calendar days' advance notification to the 
Contractor.
    (c) Contract Access Fee (CAF). (1) GSA's operating costs are 
reimbursed through a CAF charged on orders placed against this contract. 
The CAF is paid by the ordering activity but remitted to GSA by the 
Contractor. GSA has the unilateral right to change the fee structure at 
any time, but not more than once per year; GSA will provide reasonable 
notice prior to the effective date of any change.
    (2) Within 60 calendar days of award or inclusion of this clause in 
the contract, a GSA representative will provide the Contractor with 
specific written procedural instructions on remitting the CAF, including 
the deadline by which the Contractor must remit the CAF. The deadline 
specified in the written procedural instructions will be no less than 30 
calendar days after the last calendar day of the month. GSA reserves the 
unilateral right to change remittance instructions following 60 calendar 
days' advance notification to the Contractor.
    (3) The Contractor must remit the CAF to GSA in U.S. dollars.
    (4) The Contractor's failure to remit the full amount of the CAF 
within the specified deadline constitutes a contract debt to the United 
States Government under the terms of FAR Subpart 32.6. The Government 
may exercise all rights under the Debt Collection Improvement Act of 
1996, including withholding or offsetting payments and interest on the 
debt (see FAR clause 52.232-17, Interest). If the Contractor fails to 
submit the required sales reports, falsifies them, or fails to timely 
pay the CAF, these reasons constitute sufficient cause for the 
Government to terminate the contract for cause.


(End of Provision)

[81 FR 41137, June 23, 2016]



552.216-76  Ordering Agency Task-Order and Delivery-Order Ombudsman.

    As prescribed in 516.506(d), insert the following provision:

   Ordering Agency Task-Order and Delivery-Order Ombudsman (JAN 2017)

    (a) Ordering Agency Task-Order and Delivery-Order Ombudsman. The 
Ordering Agency shall designate a Task-Order and Delivery-Order 
Ombudsman to review complaints from contractors and ensure that they are 
afforded a fair opportunity for consideration in the award of task or 
delivery orders

[[Page 219]]

placed against GSA Indefinite Delivery/Indefinite Quantity (ID/IQ) 
contracts, consistent with the procedures in the contract. The contact 
information for the Ordering Agency Task-Order and Delivery-Order 
Ombudsman shall be made available to contractors.
    (b) Submission of Complaints. When a contractor submits a complaint 
to the Ordering Agency's designated Task-Order and Delivery-Order 
Ombudsman, the contractor shall also send a copy of the complaint to the 
GSA Procurement Ombudsman, for informational purposes. The GSA 
Procurement Ombudsman is located at the General Services Administration, 
Office of Governmentwide Policy (OGP), Office of Acquisition Policy 
(MV). Contact information for the GSA Procurement Ombudsman can be found 
at: http://www.gsa.gov/ombudsman.
    (c) If the contractor is not satisfied with the resolution of its 
complaint by the Ordering Agency Task-Order and Delivery-Order 
Ombudsman, the contractor may follow the procedures outlined in FAR 
subpart 33.1, as applicable (e.g., FAR 16.505(a)(10).

(End of Clause)

[82 FR 2250, Jan. 9, 2017]



552.217-70  Evaluation of Options.

    As prescribed in 517.208(a), insert the following provision:

                    Evaluation of Options (JUL 2016)

    (a) The Government will evaluate offers for award purposes by 
determining the lowest base period price. When option year pricing is 
based on a formula (e.g., changes in the Producer Price Index or other 
common standard), option year pricing is automatically considered when 
evaluating the base year price, as any change in price will be uniformly 
related to changes in market conditions. All options are therefore 
considered to be evaluated. Evaluation of options will not obligate the 
Government to exercise the option(s).
    (b) The Government will reject the offer if exceptions are taken to 
the price provisions of the Economic Price Adjustment clause, unless the 
exception results in a lower maximum option year price. Such offers will 
be evaluated without regard to the lower option year(s) maximum. 
However, if the offeror offering a lower maximum is awarded a contract, 
the award will reflect the lower maximum.

[64 FR 37218, July 9, 1999, as amended at 81 FR 36422, June 6, 2016]



552.217-71  Notice Regarding Option(s).

    As prescribed in 517.208(b), insert the following provision:

                  Notice Regarding Option(s) (NOV 1992)

    The General Services Administration (GSA) has included an option to 
[Insert ``purchase additional quantities of supplies or services'' or 
``extend the term of this contract'' or ``purchase additional quantities 
of supplies or services and to extend the term of this contract''] in 
order to demonstrate the value it places on quality performance by 
providing a mechanism for continuing a contractual relationship with a 
successful Offeror that performs at a level which meets or exceeds GSA's 
quality performance expectations as communicated to the Contractor, in 
writing, by the Contracting Officer or designated representative. When 
deciding whether to exercise the option, the Contracting Officer will 
consider the quality of the Contractor's past performance under this 
contract in accordance with 48 CFR 517.207.

                           (End of provision)



552.217-73  Notice Regarding Information Collection Requirements.

    As prescribed in 515.209-70(b), insert the following clause:

                            Notice (JUN 2016)

    (a) The information collection requirements contained in this 
solicitation/contract are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0163.
    (b) GSA's hours of operation are 8:00 a.m. to 4:30 p.m. EST. 
Requests for pre-award debriefings postmarked or otherwise submitted 
after 4:30 p.m. EST will be considered submitted the following business 
day. Requests for post-award debriefings delivered after 4:30 p.m. EST 
will be considered received and filed the following business day.

                             (End of clause)

[81 FR 36425, June 6, 2016]



552.219-70  Allocation of Orders--Partially Set-Aside Items.

    As prescribed in 519.508, insert the following clause:

       Allocation of Orders--Partially Set-Aside Items (SEP 1999)

    Where the set-aside portion of an item or group of items is awarded 
to a Contractor other than the one receiving the award on the 
corresponding non-set-aside portion, the Government will divide the 
requirements to be ordered between the two Contractors with the 
objective of achieving, as nearly as possible, a 50/50 division of the 
total value of orders placed after the award of the set-aside

[[Page 220]]

portion. In no case will this division vary by more than a 60/40 
division (with either the non-set-aside or set-aside Contractor 
receiving the larger portion) from the time of the award of the set-
aside portion.

                             (End of clause)



552.219-71  Notice to Offerors of Subcontracting Plan Requirements.

    As prescribed in 519.708-70(a), insert the following provision:

   Notice to Offerrors of Subcontracting Plan Requirements (OCT 2016)

    The General Services Administration (GSA) is committed to assuring 
that maximum practicable opportunity is provided to small, HUBZone 
small, small disadvantaged, women-owned, veteran-owned, and service-
disabled veteran-owned small business concerns to participate in the 
performance of this contract consistent with its efficient performance. 
GSA expects any subcontracting plan submitted pursuant to FAR 52.219-9, 
Small Business Subcontracting Plan, to reflect this commitment. The plan 
must demonstrate a creative and innovative program for involving small, 
HUBZone small, small disadvantaged, women-owned, veteran-owned, and 
service-disabled veteran-owned small business concerns as subcontractors 
in the performance of this contract.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005; 77 FR 10666, Feb. 23, 2012; 81 FR 68335, Oct. 4, 2016]



552.219-72  Preparation, Submission, and Negotiation of Subcontracting
Plans.

    As prescribed in 519.708-70(b), insert the following provision:

 Preparation, Submission, and Negotiation of Subcontracting Plans (OCT 
                                  2016)

    (a) When submitting a subcontracting plan in accordance with FAR 
52.219-9, the offeror shall submit a subcontracting plan with its 
initial offer. The subcontracting plan will be negotiated concurrently 
with price and any required technical and management proposals, unless 
the offeror submits a previously-approved commercial plan.
    (b) Maximum practicable utilization of small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran 
owned small business concerns as subcontractors is a matter of national 
interest with both social and economic benefits. The General Services 
Administration (GSA) expects that an offeror's subcontracting plan will 
reflect a commitment to assuring that small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran 
owned small business concerns are provided the maximum practicable 
opportunity, consistent with efficient contract performance, to 
participate as subcontractors in the performance of the resulting 
contract. An offeror submitting a commercial plan can reflect this 
commitment through subcontracting opportunities it provides that relate 
to the offeror's production generally; i.e., for both its commercial and 
Government business.
    (c) GSA believes that this potential contract provides significant 
opportunities for the use of small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns as subcontractors. Consequently, in addressing the 
eleven elements described at FAR 52.219-9(d) of the clause in this 
contract entitled Small Business Subcontracting Plan, the offeror shall:
    (1) Demonstrate that its subcontracting plan represents a creative 
and innovative program for involving small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns in performing the contract.
    (2) Include a description of the offeror's subcontracting strategies 
used in any previous contracts, significant achievements, and how this 
plan will build upon those earlier achievements.
    (3) Demonstrate through its plan that it understands the small 
business subcontracting program's objectives and GSA's expectations, and 
it is committed to taking those actions necessary to meet these goals or 
objectives.
    (d) In determining the acceptability of any subcontracting plan, the 
Contracting Officer will take each of the following actions:
    (1) Review the plan to verify that the offeror demonstrates an 
understanding of the small business subcontracting program's objectives 
and GSA's expectations with respect to the program and has included all 
the information, goals, and assurances required by FAR 52.219-9.
    (2) Consider previous goals and achievements of contractors in the 
small industry.
    (3) Consider information and potential sources obtained from 
agencies administering national and local preference programs and other 
advocacy groups in evaluating whether the goals stated in the plan 
adequately reflect the anticipated potential for subcontracting to 
small, HUBZone small, small disadvantaged, women-owned, veteran-owned, 
and service-disabled veteran-owned small business concerns.

[[Page 221]]

    (4) Review the offeror's description of its strategies, historical 
performance and significant achievements in placing subcontracts for the 
same or similar products or services with small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns. The offeror's description can apply to 
commercial as well as previous Government contracts.
    (e) Failure to submit an acceptable subcontracting plan and/or 
correct deficiencies in a plan within the time specified by the 
Contracting Officer shall make the offeror ineligible for award.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005; 77 FR 10666, Feb. 23, 2012; 81 FR 68336, Oct. 4, 2016]



552.219-73  Goals for Subcontracting Plan.

    As prescribed in 519.708-70(c), insert the following provision:

                Goals for Subcontracting Plan (JUN 2005)

    (a) Maximum practicable utilization of small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns as subcontractors is a matter of national 
interest with both social and economic benefits.
    (1) The General Service Administration's (GSA's) commitment to 
ensuring that maximum practicable opportunity is provided to small, 
HUBZone small, small disdvantaged, women-owned, veteran-owned, and 
service-disabled veteran-owned small business concerns to participate as 
subcontractors in the performance of this contract, consistent with its 
efficient performance, must be reflected in the offeror's subcontracting 
plan submitted pursuant to the clause of this contract at FAR 52.219-9, 
Small Business Subcontracting Plan.
    (2) In addressing the eleven elements described at FAR 52.219-9(d), 
the offeror shall demonstrate that its subcontracting plan represents a 
creative and innovative program for involving small, HUBZone small, 
small disadvantaged, women-owned, veteran-owned, and service-disabled 
veteran owned small business concerns in performing this contract. An 
offeror submitting a commercial plan can demonstrate its commitment in 
providing maximum practicable opportunities through subcontracting 
opportunities it provides to small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran owned small 
business concerns that relate to the offeror's production generally; 
i.e., for both its commercial and Government business.
    (3) The subcontracting plan shall include a description of the 
offeror's subcontracting strategies used in previous contracts and 
significant achievements, with an explanation of how this plan will 
build upon those earlier achievements. Additionally, the offeror shall 
demonstrate through its plan that it understands the small business 
subcontracting program's objectives, GSA's expectations, and is 
committed to taking those actions necessary to meet these goals or 
objectives.
    (b) GSA believes that this contract provides significant 
opportunities for the use of small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns as subcontractors. Accordingly, it is anticipated that 
an acceptable subcontracting plan will contain at least the following 
goals:

Small Business.......................................        __ percent.
HUBZone Small Business...............................        __ percent.
Small Disadvantaged Business.........................        __ percent.
Women-Owned Small Business...........................        __ percent.
Veteran-Owned Small Business.........................        __ percent.
Service-Disabled Veteran-Owned Small Business........        __ percent.
 

    Note: Target goals are expressed as a percentage of planned 
subcontracting dollars.

    (c) In determining the acceptability of any subcontracting plan, the 
Contracting Officer will--
    (1) Review the plan to verify that the offeror has demonstrated an 
understanding of the small business subcontracting program's objectives 
and GSA's expectations with respect to the programs and has included all 
the information, goals, and assurances required by FAR 52.219-9;
    (2) Consider previous goals and achievements of contractors in the 
same industry;
    (3) Consider information and potential sources obtained from 
agencies administering national and local preference programs and other 
advocacy groups in evaluating whether the goals stated in the plan 
adequately reflect the anticipated potential for subcontracting to 
small, HUBZone small, small disadvantaged, women-owned, veteran-owned, 
and service-disabled veteran-owned small business concerns; and
    (4) Review the offeror's description of its strategies, historical 
performance and significant achievements in placing subcontracts for the 
same or similar products or services with small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns. The offeror's description can apply to 
commercial as well as previous Government contracts.
    (d) Failure to submit an acceptable subcontracting plan and/or 
correct deficiencies

[[Page 222]]

in a plan within the time specified by the Contracting Officer shall 
make the offeror ineligible for award.

                           (End of provision)

    Alternate I (SEP 1999). As prescribed in 519.708-70(c)(2), delete 
paragraph (b) of the basic provision and redesignate paragraphs (c) and 
(d) as paragraphs (b) and (c).

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005]



552.219-74  Section 8(a) Direct Award.

    As prescribed in 519.870-8, insert the following clause:

                  Section 8(a) Direct Award (SEP 1999)

    (a) This contract is issued as a direct award between the 
contracting activity and the 8(a) Contractor pursuant to the Memorandum 
of Understanding between the Small Business Administration (SBA) and the 
General Services Administration. SBA retains the responsibility for 8(a) 
certifications, 8(a) eligibility determinations, and related issues, and 
will provide counseling and assistance to the 8(a) contractor under the 
8(a) program. The cognizant SBA district office is: [Complete at time of 
award]
    (b) The contracting activity is responsible for administering the 
contract and taking any action on behalf of the Government under the 
terms and conditions of the contract. However, the contracting activity 
shall give advance notice to SBA before it issues a final notice 
terminating performance, either in whole or in part, under the contract. 
The contracting activity shall also coordinate with SBA prior to 
processing any advance payments or novation agreements. The contracting 
activity may assign contract administration functions to a contract 
administration office.
    (c) The Contractor agrees:
    (1) To notify the Contracting Officer, simultaneous with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control.
    (2) To the requirements of 52.219-14, Limitations on Subcontracting.

                             (End of clause)



552.219-75  GSA Mentor-Protege Program.

    As prescribed in 519.7017(a), insert the following clause:

                  GSA Mentor-Protege Program (SEP 2009)

    (a) Prime contractors, including small businesses, are encouraged to 
participate in the GSA Mentor-Protege Program for the purpose of 
providing developmental assistance to eligible protege entities to 
enhance their capabilities and increase their participation in GSA 
contracts.
    (b) The Program consists of:
    (1) Mentor firms are large prime contractors with at least one 
active subcontracting plan, or that are eligible small businesses;
    (2) Proteges are subcontractors to the prime contractor, and include 
small business concerns, small disadvantaged business concerns, veteran-
owned small business concerns, service-disabled veteran-owned small 
business concerns, HUBZone small business concerns, and women-owned 
small business concerns meeting the qualifications specified in Subpart 
519.70; and
    (3) Mentor-protege Applications and Agreements, approved by the 
Mentor-Protege Program Manager in the GSA Office of Small Business 
Utilization (OSBU).
    (c) Mentor participation in the Program means providing technical, 
managerial and financial assistance to aid proteges in developing 
requisite high-tech expertise and business systems to compete for and 
successfully perform GSA contracts and subcontracts.
    (d) Contractors interested in participating in the Program are 
encouraged to read FAR Subpart 19.7 and to contact the GSA Office of 
Small Business Utilization (E), Washington, DC 20405, (202) 501-1021, 
for further information.

                             (End of clause)

[74 FR 41066, Aug. 14, 2009]



552.219-76  Mentor Requirements and Evaluation.

    As prescribed in 519.7017(b), insert the following clause:

              Mentor Requirements and Evaluation (MAR 2012)

    (a) The purpose of the GSA Mentor-Protege Program is for a GSA prime 
contractor to provide developmental assistance to certain subcontractors 
qualifying as proteges. Eligible proteges include small business 
concerns, small disadvantaged business concerns, veteran-owned small 
business concerns, service-disabled veteran-owned small business 
concerns, HUBZone small business concerns, and

[[Page 223]]

women-owned small business concerns meeting the qualifications specified 
in section 519.7007. The Program requires an Application process and an 
Agreement between the mentor and the protege. See GSAR Subpart 519.70 
for more information.
    (b) GSA will evaluate a GSA mentor's performance on the following 
factors:
    (1) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of its protege as a subcontractor 
and supplier;
    (2) Specific actions taken by the contractor during this evaluation 
period to develop the technical and corporate administrative expertise 
of its protege as defined in the Agreement;
    (3) To what extent the protege has met the developmental objectives 
in the Agreement; and
    (4) To what extent the firm's participation in the Mentor-Protege 
Program resulted in the protege receiving competitive contract(s) and 
subcontract(s) from private firms other than the mentor, and from 
agencies.
    (c) Semi-annual reports shall be submitted by a GSA mentor to the 
GSA Mentor-Protege Program Manager, GSA Office of Small Business 
Utilization (E), Washington, DC 20405. The reports must include 
information as outlined in paragraph (b) of this section. The semi-
annual report may include a narrative describing the forms of 
developmental assistance a mentor provides to a protege and any other 
types of permissible, mutually beneficial assistance.
    (d) A GSA mentor will notify the GSA Mentor-Protege Program Manager 
and the contracting officer, in writing, at least 30 days in advance of 
the mentor firm's intent to voluntarily withdraw from the GSA Program or 
terminate the Agreement, or upon receipt of a protege's notice to 
withdraw from the Program.
    (e) GSA mentor and protege firms will submit a ``Lessons Learned'' 
evaluation to the GSA Mentor-Protege Program Manager at the conclusion 
of the Mentor-Protege Agreement. At the end of each year in the Mentor-
Protege Program, the mentor and protege, as appropriate, will formally 
brief the GSA Mentor-Protege Program manager, the technical program 
manager, and the contracting officer during a formal Program review 
regarding Program accomplishments as they pertain to the approved 
Agreement.
    (f) GSA has the authority to exclude mentor or protege firms from 
participating in the GSA Program. If GSA excludes a mentor or a protege 
from the Program, the GSA Office of Small Business Utilization will 
deliver to the contractor a Notice specifying the reason for Program 
exclusion and the effective date. The exclusion from the Program does 
not constitute a termination of the subcontract between the mentor and 
the protege. A plan for accomplishing the subcontract effort should the 
Agreement be terminated shall be submitted with the Agreement as 
required in section 519.7010(j).
    (g) Subcontracts awarded to GSA protege firms under this Program are 
exempt from competition requirements, notwithstanding FAR 52.244-5. 
However, price reasonableness should still be determined.

                             (End of clause)

[74 FR 41066, Aug. 14, 2009, as amended at 77 FR 10666, Feb. 23, 2012]



552.223-70  Hazardous Substances.

    As prescribed in 523.303(a), insert the following clause:

                     Hazardous Substances (MAY 1989)

    (a) If the packaged items to be delivered under this contract are of 
a hazardous substance and ordinarily are intended or considered to be 
for use as a household item, this contract is subject to the Federal 
Hazardous Materials Act, as amended (15 U.S.C. 1261-1276), implementing 
regulations thereof (16 CFR Chapter II), and Federal Standard No. 123, 
Marking for Shipment (Civil Agencies), issue in effect on the date of 
this solicitation.
    (b) The packaged items to be delivered under this contract are 
subject to the preparation of shipping documents, the preparation of 
items for transportation, shipping container construction, package 
making, package labeling, when required, shipper's certification of 
compliance, and transport vehicle placarding in accordance with Parts 
171 through 178 of 49 CFR and the Hazardous Materials Transportation 
Act.
    (c) The minimum packaging acceptable for packaging Department of 
Transportation regulated hazardous materials shall be those in 49 CFR 
173.

                             (End of clause)



552.223-71  Nonconforming Hazardous Materials.

    As prescribed in 523.303(b), insert the following clause:

              Nonconforming Hazardous Materials (SEP 1999)

    (a) Nonconforming supplies that contain hazardous material or that 
may expose persons who handle or transport the supplies to hazardous 
material and which require replacement under the inspection and/or 
warranty clauses of this contract shall be reshipped to the Contractor 
at the Contractor's expense. The Contractor agrees to accept return of 
these nonconforming supplies

[[Page 224]]

and to pay all costs occasioned by their return.
    (b) ``Hazardous materials,'' as used in this clause, includes any 
material defined as hazardous under the latest version of Federal 
Standard No. 313 (including revisions adopted during the term of the 
contract).
    (c) If the Contractor fails to provide acceptable disposition 
instructions for the nonconforming supplies within 10 days from the date 
of the Government's request (or such longer period as may be agreed to 
between the Contracting Officer and the Contractor), or fails to accept 
return of the reshipped nonconforming supplies, such failure:
    (1) may be interpreted as a willful failure to perform,
    (2) may result in termination of the contract for default and
    (3) shall be considered by the Contracting Officer in determining 
the responsibility of the Contractor for any future award (see FAR 
9.104-3(b) and 9.406-2).
    (d) Pending final resolution of any dispute, the Contractor shall 
promptly comply with the decision of the Contracting Officer.

                             (End of clause)



552.223-72  Hazardous Material Information.

    As prescribed in 523.370, insert the following provision:

                Hazardous Material Information (SEP 1999)

    Offeror shall indicate for each national stock number (NSN) the 
following information:

------------------------------------------------------------------------
                    DOT shipping   DOT hazard
       NSN              name         class         DOT label required
------------------------------------------------------------------------
                                               Yes [  ]    No [  ]
                                               Yes [  ]    No [  ]
                                               Yes [  ]    No [  ]
------------------------------------------------------------------------

                           (End of provision)



552.223-73  Preservation, Packaging, Packing, Marking and Labeling of
Hazardous Materials (HAZMAT) For Shipments.

    As prescribed in 523.303(c), insert the following clause:

  Preservation, Packaging, Packing, Marking and Labeling of Hazardous 
               Materials (HAZMAT) For Shipments [JUN 2015]

    (a) Definition. United States, as used in this clause, means the 48 
adjoining U.S. States, Alaska, Hawaii, and U.S. territories and 
possessions, such as Puerto Rico.
    (b) Preservation, packaging, packing, marking and labeling of 
hazardous materials for export shipment outside the United States in all 
transport modes shall comply with the following, as applicable:
    (1) International Maritime Dangerous Goods (IMDG) Code as 
established by the International Maritime Organization (IMO).
    (2) U.S. Department of Transportation (DOT) Hazardous Material 
Regulation (HMR) 49 CFR parts 171 through 180. (Note: Classifications 
permitted by the HMR, but not permitted by the IMDG code, such as 
Consumer Commodities classed as ORM-D, shall be packaged in accordance 
with the IMDG Code and dual-marked with both Consumer Commodity and IMDG 
marking and labeling.)
    (3) Occupational Safety and Health Administration (OSHA) Regulation 
29 CFR part 1910.1200.
    (4) International Air Transport Association (IATA), Dangerous Goods 
Regulation and/or International Civil Aviation Organization (ICAO), 
Technical Instructions.
    (5) AFMAN 24-204, Air Force Inter-Service Manual, Preparing 
Hazardous Materials For Military Air Shipments.
    (6) Any preservation, packaging, packing, marking and labeling 
requirements contained elsewhere in this solicitation and contract.
    (c) Preservation, packaging, packing, marking and labeling of 
hazardous materials for domestic shipments within the United States in 
all transport modes shall comply with the following; as applicable:
    (1) U.S. Department of Transportation (DOT) Hazardous Material 
Regulation (HMR) 49 CFR parts 171 through 180.
    (2) Occupational Safety and Health Administration (OSHA) Regulation 
29 CFR part 1910.1200.
    (3) Any preservation, packaging, packing, marking and labeling 
requirements contained elsewhere in this solicitation and contract.
    (d) Hazardous Material Packages designated for outside the United 
States destinations through Forwarding Points, Distribution Centers, or 
Container Consolidation Points (CCPs) shall comply with the IMDG, IATA, 
ICAO or AFMAN 24-204 codes, as applicable.
    (e) The test certification data showing compliance with performance-
oriented packaging or UN-approved packaging requirements shall be made 
available to GSA contract administration/management representatives or 
regulatory inspectors upon request.

                             (End of clause)

[80 FR 36249, June 24, 2015]

[[Page 225]]



552.227-70  Government Rights (Unlimited).

    As prescribed in 527.409, insert the following clause:

                Government Rights (Unlimited) (MAY 1989)

    The Government shall have unlimited rights in all drawings, designs, 
specifications, notes and other works developed in the performance of 
this contract, including the right to use same on any other Government 
design or construction without additional compensation to the 
Contractor. The Contractor hereby grants to the Government a paid-up 
license throughout the world to all such works to which he may assert or 
establish any claim under design patent or copyright laws. The 
Contractor for a period of three years after completion of the project 
agrees to furnish the original or copies of all such works on the 
request of the Contracting Officer.

                             (End of clause)



552.227-71  Drawings and Other Data To Become Property of Government.

    As prescribed in 527.409(b), substitute the following clause:

   Drawings and Other Data To Become Property of Government (MAY 1989)

    All designs, drawings, specifications, notes and other works 
developed in the performance of this contract shall become the sole 
property of the Government and may be used on any other design or 
construction without additional compensation to the Contractor. The 
Government shall be considered the ``person for whom the work was 
prepared'' for the purpose of authorship in any copyrightable work under 
Section 201(b) of Title 17, United States Code. With respect thereto, 
the Contractor agrees not to assert or authorize others to assert any 
rights nor establish any claim under the design patent or copyright 
laws. The Contractor for a period of three years after completion of the 
project agrees to furnish all retained works on the request of the 
Contracting Officer. Unless otherwise provided in this contract, the 
Contractor shall have the right to retain copies of works beyond such 
period.

                             (End of clause)



552.228-5  Government as Additional Insured.

    As prescribed in 528.310, insert the following clause:

               Government as Additional Insured (JAN 2016)

    (a) This clause supplements the requirements set forth in FAR clause 
52.228-5, Insurance--Work on a Government Installation.
    (b) Each insurance policy required under this contract, other than 
workers' compensation insurance, shall contain an endorsement naming the 
United States as an additional insured with respect to operations 
performed under this contract. The insurance carrier is required to 
waive all subrogation rights against any of the named insured.

                             (End of clause)

[74 FR 17099, Apr. 14, 2009, as amended at 81 FR 1533, Jan. 13, 2016]



552.229-70  Federal, State, and Local Taxes.

    As prescribed in 529.401-70, insert the following clause:

               Federal, State, and Local Taxes (APR 1984)

    The contract price includes all applicable Federal, State, and local 
taxes. No adjustment will be made to cover taxes which may subsequently 
be imposed on this transaction or changes in the rates of currently 
applicable taxes. However, the Government will, upon the request of the 
Contractor, furnish evidence appropriate to establish exemption from any 
tax from which the Government is exempt and which was not included in 
the contract price.

                             (End of clause)



552.229-71  Federal Excise Tax--DC Government.

    As prescribed in 529.401-71, insert the following clause:

              Federal Excise Tax--DC Government (SEP 1999)

    If the District of Columbia cites an Internal Revenue Tax Exempt 
Certificate Number on orders placed under this contract, the Contractor 
shall bill shipments to the District of Columbia at prices exclusive of 
Federal excise tax and show the amount of such tax on the invoice.

                             (End of clause)



552.232-1  Payments.

    As prescribed in 532.908(a), insert the following clause:

[[Page 226]]

              Payments (NOV 2009) (Deviation FAR 52.232-1)

    (a) The Government shall pay the Contractor, without submission of 
invoices or vouchers, 30 days after the service period, the prices 
stipulated in this contract for supplies delivered and accepted or 
services rendered and accepted, less any deductions provided in this 
contract.
    (b) Unless otherwise specified in this contract, the Government will 
make payment on partial deliveries accepted by the Government if either:
    (1) The amount due on the deliveries warrants it.
    (2) The Contractor requests it and the amount due on the deliveries 
is at least $1,000 or 50 percent of the total contract price.
    (c) When processing payment, GSA's Finance Office will automatically 
generate the 12 digit invoice number using the PDN assigned to the 
contract, followed by an abbreviated month and year of service (e.g., 
84261554JUN7, for June 2007). The PDN appears on the contract award 
document.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 54918, Oct. 26, 2009; 81 
FR 1533, Jan. 13, 2016]



552.232-23  Assignment of Claims.

    As prescribed in 532.806, insert the following clause:

                     Assignment of Claims (SEP 1999)

    Because this is a requirements or indefinite quantity contract under 
which more than one agency may place orders, paragraph (a) of the 
Assignment of Claims clause (FAR 52.232-23) is inapplicable and the 
following is substituted therefor:
    In order to prevent confusion and delay in making payment, the 
Contractor shall not assign any claim(s) for amounts due or to become 
due under this contract. However, the Contractor is permitted to assign 
separately to a bank, trust company, or other financial institution, 
including any Federal lending agency, under the provisions of the 
Assignment of Claims Act, as amended, 31 U.S.C. 3727, 41 U.S.C. 15 
(hereinafter referred to as ``the Act''), all amounts due or to become 
due under any order amounting to $1,000 or more issued by any Government 
agency under this contract. Any such assignment takes effect only if and 
when the assignee files written notice of the assignment together with a 
true copy of the instrument of assignment with the contracting officer 
issuing the order and the finance office designated in the order to make 
payment. Unless otherwise stated in the order, payments to an assignee 
of any amounts due or to become due under any order assigned may, to the 
extent specified in the Act, be subject to reduction or set-off.

                             (End of clause)



552.232-25  Prompt Payment.

    As prescribed in 532.908(c)(2), insert the following clause:

           Prompt Payment (NOV 2009) (Deviation FAR 52.232-25)

    Notwithstanding any other payment clause in this contract, the 
Government will make invoice payments and contract financing payments 
under the terms and conditions specified in this clause. Payment shall 
be considered as being made on the day a check is dated or the date of 
an electronic funds transfer. Definitions of pertinent terms are set 
forth in section 32.902 of the Federal Acquisition Regulation. All days 
referred to in this clause are calendar days, unless otherwise 
specified. (However, see subparagraph (a)(4) of this clause concerning 
payments due on Saturdays, Sundays, and legal holidays.)
    (a) Invoice payments. (1) The due date for making invoice payments 
by the designated payment office is:
    (i) For orders placed electronically by the General Services 
Administration (GSA) Federal Acquisition Service (FAS), and to be paid 
by GSA through electronic funds transfer (EFT), the later of the 
following two events:
    (A) The 10th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 10th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (B) The 10th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (ii) For all other orders, the later of the following two events:
    (A) The 30th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 30th day after the 
date ofthe Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (B) The 30th day after Government acceptance of supplies delivered 
or services performed by the Contractor.

[[Page 227]]

    (iii) On a final invoice, if the payment amount is subject to 
contract settlement actions, acceptance occurs on the effective date of 
the contract settlement.
    (2) The General Services Administration will issue payment on the 
due date in (a)(1)(i) above if the Contractor complies with full cycle 
electronic commerce. Full cycle electronic commerce includes all the 
following elements:
    (i) The Contractor must receive and fulfill electronic data 
interchange (EDI) purchase orders (transaction set 850).
    (ii) The Contractor must generate and submit to the Government valid 
EDI invoices (transaction set 810) or submit invoices through the GSA 
Finance Center Internet-based invoice process. Internet-based invoices 
must be submitted using procedures provided by GSA.
    (iii) The Contractor's financial institution must receive and 
process, on behalf of the Contractor, EFT payments through the Automated 
Clearing House (ACH) system.
    (iv) The EDI transaction sets in (i) through (iii) above must adhere 
to implementation conventions provided by GSA.
    (3) If any of the conditions in(a)(2) above do not occur, the 10 day 
payment due dates in (a)(1) become 30 day payment due dates.
    (4) Certain food products and other payments. (i) Due dates on 
Contractor invoices for meat, meat food products, or fish; perishable 
agricultural commodities; and dairy products, edible fats or oils, and 
food products prepared from edible fats or oils are--
    (A) For meat or meat food products, as defined in section 2(a)(3) of 
the Packers and Stockyard Act of 1921 (7 U.S.C. 182 (3)), and as further 
defined in Pub. L. 98-181, including any edible fresh or frozen poultry 
meat, any perishable poultry meat food product, fresh eggs, an any 
perishable egg product, as close as possible to, but not later than, the 
7th day after product delivery.
    (B) For fresh or frozen fish, as defined in section 204(3) of the 
Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)), as close as 
possible to, but not later than, the 7th day after product delivery.
    (C) For perishable agricultural commodities, as defined in section 
1(4) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 
499a(4)), as close as possible to, but not later than, the 10th day 
after product delivery, unless another date is specified in the 
contract.
    (D) For daily products, as defined in section 111(e) of the Dairy 
Production Stabilization Act of 1983 (7 U.S.C. 4502(e)), edible fats or 
oils, and food products prepared from edible fats or oils, as close as 
possible to, but not later than, the 10th day after the date on which a 
proper invoice has been received. Liquid milk, cheese, certain processed 
cheese products, butter, yogurt, ice cream, mayonnaise, salad dressing, 
and other similar products, fall within this classification. Nothing in 
the Act limits this classification to refrigerated products. When 
questions arise regarding the proper classification of a specific 
product, prevailing industry practices will be followed in specifying a 
contract payment due date. The burden of proof that a classification of 
a specific product is, in fact, prevailing industry practice is upon the 
Contractor making the representation.
    (ii) If the contract does not require submission of an invoice for 
payment (e.g., periodic lease payments), the due date will be as 
specified in the contract.
    (5) Contractor's invoice. The Contractor shall prepare and submit 
invoices to the designated billing office specified in the contract. 
Notwithstanding paragraph (g) of the clause at FAR 52.212-4, Contract 
Terms and Conditions--Commercial Items, if the Contractor submits hard-
copy invoices, submit only an original invoice. No copies of the invoice 
are required. A proper invoice must include the items listed in 
subdivisions (a)(5)(i) through (a)(5)(viii) of this clause. If the 
invoice does not comply with these requirements, it shall be returned 
within 7 days after the date the designated billing office received the 
invoice (3 days for meat, meat food products, or fish; 5 days for 
perishable agricultural commodities, edible fats or oils, and food 
products prepared from edible fats or oils), with a statement of the 
reasons why it is not a proper invoice. Untimely notification will be 
taken into account in computing any interest penalty owed the Contractor 
in the manner described in subparagraph (a)(5) of this clause.
    (i) Name and address of the Contractor.
    (ii) Invoice date. (The Contractor is encouraged to date invoices as 
close as possible to the date of the mailing or transmission.)
    (iii) Contract number or other authorization for supplies delivered 
or services preformed (including order number and contract line item 
number).
    (iv) Description, quantity, unit of measure, unit price, an extended 
prices of supplies delivered or services performed.
    (v) Shipping and payment terms (e.g., shipment number and date of 
shipment, prompt payment discount terms). Bill of lading number and 
weight of shipment will be shown for shipments on Government bills or 
lading.
    (vi) Name and address of Contractor official to whom payment is to 
be sent (must be the same as that in the contract or in a proper notice 
of assignment).
    (vii) Name (where practicable), title, phone number, and mailing 
address of person to be notified in the event of a defective invoice.
    (viii) Any other information or documentation required by the 
contract (such as evidence of shipment).
    (ix) While not required, the Contractor is strongly encouraged to 
assign an identification number to each invoice.

[[Page 228]]

    (6) Interest penalty. An interest penalty shall be paid 
automatically by the designated payment office, without request from the 
Contractor, if payment is not made by the due date and the conditions 
listed in subdivisions (a)(6)(i) through (a)(6)(iii) of this clause are 
met, if applicable. However, when the due date falls on a Saturday, 
Sunday, or legal holiday when Federal Government offices are closed and 
Government business is not expected to be conducted, payment may be made 
on the following business day without incurring a late payment interest 
penalty.
    (i) A proper invoice was received by the designated billing office.
    (ii) A receiving report or other Government documentation 
authorizing payment was processed, and there was no disagreement over 
quantity, quality, or Contractor compliance with any contract term or 
condition.
    (iii) In the case of a final invoice for any balance of funds due 
the Contractor for supplies delivered or services performed, the amount 
was not subject to further contract settlement actions between the 
Government and the Contractor.
    (7) Computing penalty amount. The interest penalty shall be at the 
rate established by the Secretary of the Treasury under section 12 of 
the Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on 
the day after the due date, except where the interest penalty is 
prescribed by other governmental authority (e.g., tariffs). This rate is 
referred to as the ``Renegotiation Board Interest Rate,'' and it is 
published in the Federal Register semiannually on or about January 1 and 
July 1. The interest penalty shall accrue daily on the invoice principal 
payment amount approved by the Government until the payment date of such 
approved principal amount; and will be compounded in 30-day increments 
inclusive from the first day after the due date through the payment 
date. That is, interest accrued at the end of any 30-day period will be 
added to the approved invoice principal payment amount and will be 
subject to interest penalties if not paid in the succeeding 30-day 
period. If the designated billing office failed to notify the Contractor 
of a defective invoice within the periods prescribed in subparagraph 
(a)(5) of this clause, the due date on the corrected invoice will be 
adjusted by subtracting from such date the number of days taken beyond 
the prescribed notification of defects period. Any interest penalty owed 
the Contractor will be based on this adjusted due date. Adjustments will 
be made by the designated payment office for errors in calculating 
interest penalties.
    (i) For the sole purpose of computing an interest penalty that might 
be due the Contractor, Government acceptance shall be deemed to have 
occurred constructively on the 7th day (unless otherwise specified in 
this contract) after the Contractor delivered the supplies or performed 
the services in accordance with the terms and conditions of the 
contract, unless there is a disagreement over quantity, quality or 
Contractor compliance with a contract provision. In the event that 
actual acceptance occurs within the constructive acceptance period, the 
determination of an interest penalty shall be based on the actual date 
of acceptance. The constructive acceptance requirement does, not 
however, compel Government officials to accept supplies or services, 
perform contract administration functions, or make payment prior to 
fulfilling their responsibilities.
    (ii) The following periods of time will not be included in the 
determination of an interest penalty:
    (A) The period taken to notify the Contractor of defects in invoices 
submitted to the Government, but this may not exceed 7 days (3 days for 
meat, meat food products, or fish; 5 days for perishable agricultural 
commodities, dairy products, edible fats or oils, and food products 
prepared from edible fats or oils).
    (B) The period between the defects notice and resubmission of the 
corrected invoice by the Contractor.
    (C) For incorrect electronic funds transfer (EFT) information, in 
accordance with the EFT clause of this contract.
    (iii) Interest penalties will not continue to accrue after the 
filing of a claim for such penalties under the clause at 52.233-1, 
Disputes, or for more than 1 year. Interest penalties of less than $1 
need not be paid.
    (iv) Interest penalties are not required on payment delays due to 
disagreement between the Government and the Contractor over the payment 
amount or other issues involving contract compliance or on amounts 
temporarily withheld or retained in accordance with the terms of the 
contract. Claims involving disputes, and any interest that may be 
payable, will be resolved in accordance with the clause at 52.233-1, 
Disputes.
    (8) Prompt payment discounts. An interest penalty also shall be paid 
automatically by the designated payment office, without request from the 
Contractor, if a discount for prompt payment is taken improperly. The 
interest penalty will be calculated as described in subparagraph (a)(7) 
of this clause on the amount of discount taken for the period beginning 
with the first day after the end of the discount period through the date 
when the Contractor is paid.
    (9) Additional interest penalty. (i) If this contract was awarded on 
or October 1, 1989, a penalty amount, calculated in accordance with 
subdivision (a)(9)(iii) of this clause, shall be paid in addition to the 
interest penalty amount if the Contractor--
    (A) Is owed an interest penalty of $1 or more;

[[Page 229]]

    (B) Is not paid the interest penalty within 10 days after the date 
the invoice amount is paid; and
    (C) Makes a written demand to the designated payment office for 
additional penalty payment, in accordance with subdivision (a)(9)(ii) of 
this clause, postmarked not later than 40 days after the invoice amount 
is paid.
    (ii)(A) Contractors shall support written demands for additional 
penalty payments with the following data. No additional data shall be 
required. Contractors shall--
    (1) Specifically assert that late payment interest is due under a 
specific invoice, and request payment of all overdue late payment 
interest penalty and such additional penalty as may be required;
    (2) Attach a copy of the invoice on which the unpaid late payment 
interest was due; and
    (3) State that payment of the principal has been received, including 
the date of receipt.
    (B) Demands must be postmarked on or before the 40th day after 
payment was made, except that--
    (1) If the postmark is illegible or nonexistent, the demand must 
have been received and annotated with the date of receipt by the 
designated payment office on or before the 40th day after payment was 
made; or
    (2) If the postmark is illegible or nonexistent and the designated 
payment office fails to make the required annotation, the demand's 
validity will be determined by the date the Contractor has placed on the 
demand; provided such date is no later than the 40th day after payment 
was made.
    (iii)(A) The additional penalty shall be equal to 100 percent of any 
original late payment interest penalty, except--
    (1) The additional penalty shall not exceed $5,000;
    (2) The additional penalty shall never be less than $25; and
    (3) No additional penalty is owed if the amount of the underlying 
interest penalty is less than $1.
    (B) If the interest penalty ceases to accrue in accordance with the 
limits stated in subdivision (a)(5)(iii) of this clause, the amount of 
the additional penalty shall be calculated on the amount of interest 
penalty that would have accrued in the absence of these limits, subject 
to the overall limits on the additional penalty specified in subdivision 
(a)(7)(iii)(A) of this clause.
    (C) For determining the maximum and minimum additional penalties, 
the test shall be the interest penalty due on each separate payment made 
for each separate contract. The maximum and minimum additional penalty 
shall not be based upon individual invoices unless the invoices are paid 
separately. Where payments are consolidated for disbursing purposes, the 
maximum and minimum additional penalty determination shall be made 
separately for each contract therein.
    (D) The additional penalty does not apply to payments regulated by 
other Government regulations (e.g., payments under utility contracts 
subject to tariffs and regulation).
    (b) Contract financing payments--(1) Due dates for recurring 
financing payments. If this contract provides for contract financing, 
requests for payment shall be submitted to the designated billing office 
as specified in this contract or as directed by the Contracting Officer. 
Contract financing payments shall be made on the [insert day as 
prescribed by Agency head; if not prescribed, insert 30th day] day after 
receipt of a proper contract financing request by the designated billing 
office. In the event that an audit or other review of a specific 
financing request is required to ensure compliance with the terms and 
conditions of the contract, the designated payment office is not 
compelled to make payment by the due date specified.
    (2) Due dates for other contract financing. For advance payments, 
loans, or other arrangements that do not involve recurring submissions 
of contract financing requests, payment shall be in accordance with the 
corresponding contract terms or as directed by the Contracting Officer.
    (3) Interest penalty not applicable. Contract financing payments 
shall not be assessed an interest penalty for payment delays.
    (c) Fast payment procedure due dates. If this contract contains the 
clause at 52.213-1, Fast Payment Procedure, payments will be made within 
15 days after the date of receipt of the invoice.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 54918, Oct. 26, 2009]



552.232-72  Final Payment Under Building Services Contracts.

    As prescribed in 532.904(c), insert the following clause:

       Final Payment Under Building Services Contracts (MAR 2012)

    Before final payment is made, the Contractor shall complete and 
furnish the Contracting Officer with GSA Form 1142, Release of Claims, 
releasing all claims against the Government relating to this contract, 
other than claims in stated amounts that are specifically excepted by 
the Contractor from the release. If the Contractor's claim to amounts 
payable under the contract has been assigned under the Assignment of 
Claims Act of 1940, as amended (31 U.S.C. 3727, 41 U.S.C. 15), a release 
may also be required of the assignee.

[77 FR 6988, Feb. 10, 2012]

[[Page 230]]



552.232-77  Payment By Government Charge Card.

    As prescribed in 532.7003, insert the following clause:

              Payment By Government Charge Card (NOV 2009)

    (a) Definitions. ``Governmentwide commercial purchase card'' means a 
uniquely numbered charge card issued by a contractor under the GSA 
SmartPay  program contract for Fleet, Travel, and Purchase 
Card Services to named individual Government employees or entities to 
pay for official Government purchases.
    ``Oral order'' means an order placed orally either in person or by 
telephone.
    (b) At the option of the Government and if agreeable to the 
Contractor, payments of ___*-- or less for oral or written orders may be 
made using the Governmentwide commercial purchase card.
    (c) The Contractor shall not process a transaction for payment using 
the charge card until the purchased supplies have been shipped or 
services performed. Unless the cardholder requests correction or 
replacement of a defective or faulty item under other contract 
requirements, the Contractor must immediately credit a cardholder's 
account for items returned as defective or faulty.
    (d) Payments made using the Governmentwide commercial purchase card 
are not eligible for any negotiated prompt payment discount. Payment 
made using a Government debit card will receive the applicable prompt 
payment discount.

                             (End of clause)

    * Enter amount not to exceed $100,000.

[65 FR 11248, Mar. 2, 2000, as amended at 74 FR 54918, Oct. 26, 2009]



552.236-70  Definitions.

    As prescribed in 536.570-1, insert the following clause:

                         Definitions (APR 1984)

    The terms ``Administration'' and ``Service'' as used in this 
contract shall mean the General Services Administration (GSA) and the 
Public Buildings Service (PBS), respectively.

                             (End of clause)



552.236-71  Authorities and Limitations.

    As prescribed in 536.570-2, insert the following clause:

                 Authorities and Limitations (APR 1984)

    (a) All work shall be performed under the general direction of the 
Contracting Officer, who alone shall have the power to bind the 
Government and to exercise the rights, responsibilities, authorities and 
functions vested in him by the contract documents, except that he shall 
have the right to designate authorized representatives to act for him. 
Wherever any provision in this contract specifies an individual (such 
as, but not limited to, Construction Engineer, Resident Engineer, 
Inspector or Custodian) or organization, whether governmental or 
private, to perform any act on behalf of or in the interests of the 
Government, that individual or organization shall be deemed to be the 
Contracting Officer's authorized representative under this contract but 
only to the extent so specified. The Contracting Officer may, at any 
time during the performance of this contract, vest in any such 
authorized representatives additional power and authority to act for him 
or designate additional representatives, specifying the extent of their 
authority to act for him; a copy of each document vesting additional 
authority in an authorized representative or designating an additional 
authorized representative shall be furnished to the Contractor.
    (b) The Contractor shall perform the contract in accordance with any 
order (including but not limited to instruction, direction, 
interpretation, or determination) issued by an authorized representative 
in accordance with his authority to act for the Contracting Officer; but 
the Contractor assumes all the risk and consequences of performing the 
contract in accordance with any order (including but not limited to 
instruction, direction, interpretation, or determination) of anyone not 
authorized to issue such order.

                             (End of clause)



552.236-72  [Reserved]



552.236-73  Basis of Award--Construction Contract.

    As prescribed in 536.570-4, insert the following provision or the 
appropriate Alternate:

            Basis of Award--Construction Contract (APR 1985)

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest price for the base bid (consisting of the lump sum 
bid and any associated unit price bids extended by the applicable number 
of units shown on the bid form). See Standard Form 1442, Solicitation, 
Offer, and Award and the provision entitled ``Contract Award--Sealed 
Bidding.''

[[Page 231]]

    (b) A bid may be rejected as nonresponsive if the bid is materially 
unbalanced as to bid prices. A bid is unbalanced when the bid is based 
on prices significantly less than cost for some work and significantly 
overstated for other work.

                           (End of provision)

    Alternate I (APR 1985). if the solicitation includes a base bid and 
options, the Contracting Officer shall delete paragraph (a) of the basic 
provision and insert paragraph (a) substantially as follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) all options 
designated to be evaluated. The evaluation of options will not obligate 
the Government to exercise the options. See Standard Form 1442, 
Solicitation, Offer, and Award and the provision entitled ``Contract 
Award--Sealed Bidding.''

    Alternate II (APR 1985). If the solicitation includes a base bid and 
alternates, the Contracting Officer shall delete paragraph (a) of the 
basic provision and insert paragraphs (a), (c), and (d) substantially as 
follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) those 
alternates in the order of priority listed in the solicitation that 
provide the most features of work within the funds available at bid 
opening. See the provision entitled ``Contract Award--Sealed Bidding.''
    (c) Alternates will be added to the base bid in the order listed in 
the solicitation (see Standard Form 1442, Solicitation, Offer, and 
Award). If the addition of an alternate would make all bids exceed the 
funds available at bid opening, that alternate shall be skipped and the 
next subsequent alternate in a lower amount shall be added, provided 
that the aggregate of base bid and the selected alternates do not exceed 
the funds available at bid opening. For example, when the amount 
available is $100,000 and a bidder's base bid is $85,000, with its 
separate bids on four successive alternatives being $10,000, $8,000, 
$6,000, and $4,000, the aggregate amount of the bid for purposes of 
selecting the alternates would be $99,000 (base bid plus the first and 
four alternates). The second and third alternates are skipped because 
each of them would cause the aggregate of the base bid and alternates to 
exceed the $100,000 amount available when considered with the first 
alternate. All bids shall be evaluated on the basis of the same 
alternates.
    (d) After the low bidder has been determined in accordance with 
paragraph (a), an award may be made to that low bidder on the base bid, 
plus any combination of alternates for which funds are available at the 
time of award, but only if the award amount does not exceed the amount 
offered by any other responsible bidder. If the base bid plus the 
proposed combination of alternates exceed the amount offered by any 
other responsible bidder for the same combination of alternates, the 
award cannot be made on that combination of alternates.

    Alternate III (APR 1985). If the solicitation includes a base bid, 
alternates, and options, the Contracting Officer shall delete paragraph 
(a) of the basic provision and insert paragraphs (a), (c), and (d) 
substantially as follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) those 
alternates in the order of priority listed in the solicitation that 
provide the most features of work within the funds available at bid 
opening plus (3) all options designated to be evaluated except those 
options associated with alternates which are skipped during the 
selection process outlined in paragraph (c) below. The evaluation of 
options will not obligate the Government to exercise the options. See 
the provision entitled ``Contract Award--Sealed Bidding.''
    (c) Alternates will be added to the base bid in the order listed in 
the solicitation (see Standard Form 1442, Solicitation, Offer, or 
Award). If the addition of an alternate would make all bids exceed the 
funds available at bid opening, that alternate shall be skipped and the 
next subsequent alternate in a lower amount shall be added, provided 
that the aggregate of base bid and the selected alternates do not exceed 
the funds available at bid opening. For example, when the amount 
available is $100,000 and a bidder's base bid is $85,000, with its 
separate bids on four successive alternates being $10,000, $8,000, 
$6,000, and $4,000, the aggregate amount of the bid for purposes of 
selecting the alternates would be $99,000 (base bid plus the first and 
fourth alternates). The second and third alternates are skipped because 
each of them would cause the aggregate of the base bid and alternates to 
exceed the $100,000 amount available when considered with the first 
alternate. All bids shall be evaluated on the basis of the same 
alternates.

[[Page 232]]

    (d) After the low bidder has been determined in accordance with 
paragraph (a), award may be made to that low bidder on the base bid and 
evaluated options plus any combination of alternates for which funds are 
available at the time of award, but only if that low bidder is still low 
on the sum thereof plus any previously unevaluated options designated to 
be evaluated which are associated with proposed alternates that were 
skipped during the selection under paragraph (c). If that low bidder is 
not still low, award cannot be made on the proposed combination of 
alternates.



552.236-74--552.236-76  [Reserved]



552.236-77  Specifications and Drawings

    As prescribed in 536.570-8, insert the following clause:

                 Specifications and Drawings (SEP 1999)

    The requirements of the clause entitled ``Specifications and 
Drawings for Construction'' at FAR 52.236-21, are supplemented as 
follows:
    (a) In case of difference between small and large-scale drawings, 
the large-scale drawings shall govern. Schedules on any contract drawing 
shall take precedence over conflicting information on that or any other 
contract drawing. On any of the drawings where a portion of the work is 
detailed or drawn out and the remainder is shown in outline, the parts 
detailed or drawn out shall apply also to all other like portions of the 
work.
    (b) Where the word ``similar'' occurs on the drawings, it shall have 
a general meaning and not be interpreted as being identical, and all 
details shall be worked out in relation to their location and their 
connection with other parts of the work.
    (c) Standard Details or Specification Drawings are applicable when 
listed, bound with the specifications, noted on the drawings or 
referenced elsewhere in the specifications. Where the notes on the 
drawings indicate modifications, such modifications shall govern.
    (d) In case of difference between Standard Details or Specification 
Drawings and the specifications, the specifications will govern. In case 
of difference between the Standard Details or Specification Drawings and 
their drawings prepared specifically for this contract, the later shall 
govern.

                             (End of clause)



552.236-78  Shop Drawings, Coordination Drawings, and Schedules.

    As prescribed in 536.570-9, insert the following clause:

     Shop Drawings, Coordination Drawings, and Schedules (SEP 1999)

    The requirements, of the clause entitled ``Specifications and 
Drawings for Construction'' at FAR 52.236-21, are supplemented as 
follows:
    (a) The Contractor shall submit shop drawings, coordination 
drawings, and schedules for approval as required by the specifications 
or requested by the Contracting Officer as follows:
    (b) Show drawings shall include fabrication, erection and setting 
drawings, schedule drawings, manufacturers' scale drawings, wriring and 
control diagrams, cuts or entire catalogs, pamphlets, descriptive 
literature, and performance and test data.
    (c) Drawings and schedules, other than catalogs, pamphlets and 
similar printed material, shall be submitted in reproducible form with 
two prints made by a process approved by the Contracting Officer. Upon 
approval, the reproducible form will be returned to the Contractor who 
shall then furnish the number of additional prints, not to exceed 10, 
required by the specifications. The Contractor shall submit shop 
drawings in catalog, pamphlet and similar printed form in a minimum of 
four copies plus as many additional copies as the Contractor may desire 
or need for his use or use by subcontractors.
    (d) Before submitting shop drawings on the mechanical and electrical 
work, the Contractor shall submit and obtain the Contracting Officer's 
approval of such lists of mechanical and electrical equipment and 
materials as may be required by the specifications.
    (e) Each shop drawing or coordination drawing shall have a blank 
area 5 by 5 inches, located adjacent to the title block. The title block 
shall display the following:

Number and title of drawing
Date of drawing or revision
Name of project building or facility
Name of Contractor and (if appropriate) name of subcontractor submitting 
drawing
Clear identify of contents and location on the work
Project title and contract number

    (f) Unless otherwise provided in this contract, or otherwise 
directed by the Contracting Officer, shop drawings, coordination 
drawings and schedules shall be submitted to the Contracting Officer, 
with a letter in triplicate, sufficiently in advance of construction 
requirements to permit no less than 10 working days for checking and 
appropriate action.
    (g) Approval of drawings and schedules will be general and shall not 
be construed as permitting any departure from the contract requirements, 
or as approving departures from full-size details furnished by the 
Contracting Officer.

[[Page 233]]

                             (End of clause)



552.236-79--552.236-80  [Reserved]



552.236-81  Use of Equipment by the Government.

    As prescribed in 536.570-12, insert the following clause:

              Use of Equipment by the Government (APR 1984)

    (a) The Government may take over and operate, with Government 
employees, such equipment as is necessary for heating or cooling such 
areas of the building as require the service, as soon as the 
installation is sufficiently complete.
    (b) The Contracting Officer will advise the Contractor by letter, 
prior to the use of equipment, which items of equipment will be 
operated, and the date and time such operation will begin.
    (c) Government operation of equipment will not relieve the 
Contractor of the one-year guarantee on materials and workmanship 
elsewhere provided for in this contract.
    (d) The guarantee period, elsewhere provided for in this contact, 
for each piece of equipment shall be in accordance with the 
``Guarantees'' clause of this contract.

                             (End of clause)



552.236-82  Subcontracts.

    As prescribed in 536.570-13, insert the following clause:

                         Subcontracts (APR 1984)

    (a) Nothing contained in the contract shall be construed as creating 
any contractual relationship between any subcontractor and the 
Government. The divisions or sections of the specifications are not 
intended to control the Contractor in dividing the work among 
subcontractors, or to limit the work performed by any trade.
    (b) The Contractor shall be responsible to the Government for acts 
and omissions of his own employees and of subcontractors and their 
employees. He shall also be responsible for the coordination of the work 
of the trades, subcontractors and suppliers.
    (c) The Government will not undertake to settle any differences 
between or among the Contractor, subcontractors, or suppliers.

                             (End of clause)



552.237-70  [Reserved]



552.237-71  Qualifications of Employees.

    As prescribed in 537.110(a), insert the following clause:

                 Qualifications of Employees (MAY 1989)

    (a) The contracting officer or a designated representative may 
require the Contractor to remove any employee(s) from GSA controlled 
buildings or other real property should it be determined that the 
individual(s) is either unsuitable for security reasons or otherwise 
unfit to work on GSA controlled property.
    (b) The Contractor shall fill out and cause all of its employees 
performing work on the contract work to fill out, for submission to the 
Government, such forms as may be necessary for security or other 
reasons. Upon request of the Contracting Officer, the Contractor and its 
employees shall be fingerprinted.
    (c) Each employee of the Contractor shall be a citizen of the United 
States of America, or an alien who has been lawfully admitted for 
permanent residence as evidenced by Alien Registration Receipt Card Form 
I-151, or, who presents other evidence from the Immigration and 
Naturalization Service that employment will not affect his immigration 
status.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]



552.237-72  Prohibition Regarding ``Quasi-Military Armed Forces.''

    As prescribed in 537.110(b), insert the following clause:

    Prohibition Regarding ``Quasi-Military Armed Forces'' (SEP 1999)

    The Contractor must not, during the term of this contract, offer for 
hire ``Quasi-Military Armed Forces'' within the meaning of the court 
decision in United States ex. rel. Weinberger v. Equifax, 557 F.2d 456 
(5th Cir. 1977).

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]



552.237-73  Restriction on Disclosure of Information.

    As prescribed in 537.270, insert the following clause:

           Restriction on Disclosure of Information (MAY 2009)

    (a) The Contractor shall, in the performance of this contract, keep 
all information contained in source documents or other media furnished 
by the Government in the strictest confidence. The Contractor shall

[[Page 234]]

not publish or otherwise divulge such information in whole or in part, 
in any manner or form, nor authorize or permit others to do so. The 
Contractor shall take such reasonable measures as are necessary to 
restrict access to such information, while in the Contractor's 
possession, to those employees needing such information to perform the 
work provided herein, i.e., on a ``need to know'' basis. The Contractor 
shall immediately notify, in writing, the Contracting Officer in the 
event that the Contractor determines or has reason to suspect a breach 
of this requirement.
    (b) The Contractor shall not disclose any information concerning the 
work under this contract to any persons or entity unless the Contractor 
obtains prior written approval from the Contracting Officer.
    (c) The Contractor shall insert the substance of this clause in any 
consultant agreement or subcontract under this contract.
    (d) Any unauthorized disclosure of information may result in 
termination of this contract for cause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]



552.238-70  Identification of Electronic Office Equipment Providing
Accessibility for the Handicapped.

    As prescribed in 538.273(a)(1), insert the following clause:

 Identification of Electronic Office Equipment Providing Accessibility 
                     for the Handicapped (SEP 1991)

    (a) Definitions. ``Electronic office equipment accessiblity'' means 
the application/configuration of electronic office equipment (includes 
hardware, software and firmware) in a manner that accommodates the 
functional limitations of individuals with disabilities (i.e., 
handicapped individuals) so as to promote productivity and provide 
access to work related and/or public information resources.
    ``Handicapped individuals'' mean qualified individuals with 
impairments as cited in 29 CFR 1613.702(f) who can benefit from 
electronic office equipment accessibility.
    ``Special peripheral'' means a special needs aid that provides 
access to electronic equipment that is otherwise inaccessible to a 
handicapped individual.
    (b) The offeror is encouraged to identify in its offer, and include 
in any commercial catalogs and pricelists accepted by the Contracting 
Officer, office equipment, including any special peripheral, that will 
facilitate electronic office equipment accessibility for handicapped 
individuals. Identification should include the type of disability 
accommodated and how the users with that disability would be helped.

                             (End of clause)



552.238-71  Submission and Distribution of Authorized FSS Schedule
Pricelists.

    As prescribed in 538.273(a)(2), insert the following clause:

 Submission and Distribution of Authorized FSS Schedule Pricelists (JUL 
                                  2016)

    (a) Definition. For the purposes of this clause, the Mailing List is 
[Contracting officer shall insert either: ``the list of addressees 
provided to the Contractor by the Contracting Officer'' or ``the 
Contractor's listing of its ordering activity customers''].
    (b) The Contracting Officer will return one copy of the Authorize 
FSS Schedule Pricelist to the Contractor with the notification of 
contract award.
    (c)(1) The Contractor shall provide to the GSA Contracting Officer:
    (i) Two paper copies of Authorized FSS Schedule Pricelist; and
    (ii) The Authorized FSS Schedule Pricelist on a common-use 
electronic medium.
    The Contracting Officer will provide detailed instructions for the 
electronic submission with the award notification. Some structured data 
entry in a prescribed format may be required.
    (2) The Contractor shall provide to each addressee on the mailing 
list either:
    (i) One paper copy of the Authorized FSS Schedule Price List; or
    (ii) A self-addressed, postage-paid envelope or postcard to be 
returned by addressee that want to receive a paper copy of the 
pricelist. The Contractor shall distribute price lists within 20 
calendar days after receipt of returned requests.
    (3) The Contractor shall advise each addressee of the availability 
of pricelist information through the on-line Multiple Award Schedule 
electronic data base.
    (d) The Contractor shall make all of the distributions required in 
paragraph (c) at least 15 calendar days before the beginning of the 
contract period, or within 30 calendar days after receipt of the 
Contracting Officer's approval for printing, whichever is later.
    (e) During the period of the contract, the Contractor shall provide 
one copy of its Authorized FSS Schedule Pricelist to any authorized 
schedule user, upon request. Use of the mailing list for any other 
purpose is not authorized.

[[Page 235]]

                             (End of clause)

    (a) Definition. For the purposes of this clause, the Mailing List is 
[Contracting officer shall insert either: ``the list of addressees 
provided to the Contractor by the Contracting Officer'' or ``the 
Contractor's listing of its ordering activity customers''].

[64 FR 37229, July 9, 1999, as amended at 68 FR 24381, May 7, 2003, as 
amended at 81 FR 36430, June 6, 2016]



552.238-72  Identification of Products That Have Environmental Attributes.

    As prescribed in 538.273(a)(3), insert the following clause:

Identification of Products That Have Environmental Attributes (SEP 2003)

    (a) Several laws, Executive orders, and Agency directives require 
Federal buyers to purchase products that are less harmful to the 
environment, when they are life cycle cost-effective (see FAR Subpart 
23.7). The U.S. General Services Administration (GSA) requires 
contractors to highlight environmental products under Federal Supply 
Service schedule contracts in various communications media (e.g., 
publications and electronic formats).
    (b) Definitions. As used in this clause--
    Energy-efficient product means a product that--
    (1) Meets Department of Energy and Environmental Protection Agency 
criteria for use of the ENERGY STAR  trademark label; or
    (2) Is in the upper 25 percent of efficiency for all similar 
products as designated by the Department of Energy's Federal Energy 
Management Program.
    GSA Advantage! is an on-line shopping mall and ordering system that 
provides customers with access to products and services under GSA 
contracts.
    Other environmental attributes refers to product characteristics 
that provide environmental benefits, excluding recovered materials and 
energy and water efficiency. Several examples of these characteristics 
are biodegradable, recyclable, reduced pollutants, ozone safe, and low 
volatile organic compounds (VOCs).
    Post-consumer material means a material or finished product that has 
served its intended use and has been discarded for disposal or recovery, 
having completed its life as a consumer item. Post-consumer material is 
part of the broader category of ``recovered material.'' The 
Environmental Protection Agency (EPA) has developed a list of EPA-
designated products in their Comprehensive Procurement Guidelines (CPGs) 
to provide Federal agencies with purchasing recommendations on specific 
products in a Recovered Materials Advisory Notice (RMAN). The RMAN 
contains recommended recovered and post-consumer material content levels 
for the specific products designated by EPA (40 CFR part 247 and http://
www.epa.gov/cpg/).
    Recovered materials 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 (Executive Order 13101 and 42 U.S.C. 
6903(19) and http://www.epa.gov/cpg/). For paper and paper products, see 
the definition at FAR 11.301 (42 U.S.C. 6962(h)).
    Remanufactured means factory rebuilt to original specifications.
    Renewable energy means energy produced by solar, wind, geothermal, 
and biomass power.
    Renewable energy technology means--
    (1) Technologies that use renewable energy to provide light, heat, 
cooling, or mechanical or electrical energy for use in facilities or 
other activities; or
    (2) The use of integrated whole-building designs that rely upon 
renewable energy resources, including passive solar design.
    (c)(1) The offeror must identify products that--
    (i) Are compliant with the recovered and post-consumer material 
content levels recommended in the Recovered Materials Advisory Notices 
(RMANs) for EPA-designated products in the CPG program (http://
www.epa.gov/cpg/);
    (ii) Contain recovered materials that either do not meet the 
recommended levels in the RMANs or are not EPA-designated products in 
the CPG program (see FAR 23.401 and http://www.epa.gov/cpg/);
    (iii) Are energy-efficient, as defined by either ENERGY STAR 
 and/or FEMP's designated top 25th percentile levels (see 
ENERGY STAR  at http://www.energystar.gov/ and FEMP at 
http://www.eere.energy.gov/femp/procurement/);
    (iv) Are water-efficient;
    (v) Use renewable energy technology;
    (vi) Are remanufactured; and
    (vii) Have other environmental attributes.
    (2) These identifications must be made in each of the offeror's 
following mediums:
    (i) The offer itself.
    (ii) Printed commercial catalogs, brochures, and pricelists.
    (iii) Online product website.
    (iv) Electronic data submission for GSA Advantage! submitted via 
GSA's Schedules Input Program (SIP) software or the Electronic Data 
Inter-change (EDI). Offerors can use the SIP or EDI methods to indicate 
environmental and other attributes for each product that is translated 
into respective icons in GSA Advantage!.

[[Page 236]]

    (d) An offeror, in identifying an item with an environmental 
attribute, must possess evidence or rely on a reasonable basis to 
substantiate the claim (see 16 CFR part 260, Guides for the Use of 
Environmental Marketing Claims). The Government will accept an offeror's 
claim of an item's environmental attribute on the basis of--
    (1) Participation in a Federal agency-sponsored program (e.g., the 
EPA and DOE ENERGY STAR  product labeling program);
    (2) Verification by an independent organization that specializes in 
certifying such claims; or
    (3) Possession of competent and reliable evidence. For any test, 
analysis, research, study, or other evidence to be ``competent and 
reliable,'' it must have been conducted and evaluated in an objective 
manner by persons qualified to do so, using procedures generally 
accepted in the profession to yield accurate and reliable results.

                             (End of clause)

[68 FR 52128, Sept. 2, 2003]



552.238-73  Cancellation.

    As prescribed in 538.273(a)(4), insert the following clause:

                         Cancellation (SEP 1999)

    Either party may cancel this contract in whole or in part by 
providing written notice. The cancellation will take effect 30 calendar 
days after the other party receives the notice of cancellation. If the 
Contractor elects to cancel this contract, the Government will not 
reimburse the minimum guarantee.

                             (End of clause)



552.238-74  Industrial Funding Fee and Sales Reporting.

    As prescribed in 538.273(b)(1), insert the following clause:

          Industrial Funding Fee and Sales Reporting (JAN 2016)

    (a) Reporting of Federal Supply Schedule Sales. The Contractor shall 
report all contract sales under this contract as follows:
    (1) The Contractor shall accurately report the dollar value, in U.S. 
dollars and rounded to the nearest whole dollar, of all sales under this 
contract by calendar quarter (January 1-March 31, April 1-June 30, July 
1-September 30, and October 1-December 31). The dollar value of a sale 
is the price paid by the Schedule user for products and services on a 
Schedule task or delivery order. The reported contract sales value shall 
include the Industrial Funding Fee (IFF). The Contractor shall maintain 
a consistent accounting method of sales reporting, based on the 
Contractor's established commercial accounting practice. The acceptable 
points at which sales may be reported include--
    (i) Receipt of order;
    (ii) Shipment or delivery, as applicable;
    (iii) Issuance of an invoice; or
    (iv) Payment.
    (2) Contract sales shall be reported to FSS Federal Acquisition 
Services (FSS) within 30 calendar days following the completion of each 
reporting quarter. The Contractor shall continue to furnish quarterly 
reports, including ``zero'' sales, through physical completion of the 
last outstanding task order or delivery order of the contract.
    (3) Reportable sales under the contract are those resulting from 
sales of contract items to authorized users unless the purchase was 
conducted pursuant to a separate contracting authority such as a 
Governmentwide Acquisition Contract (GWAC); a separately awarded FAR 
Part 12, FAR Part 13, FAR Part 14, or FAR Part 15 procurement; or a non-
FAR contract. Sales made to state and local governments under 
Cooperative Purchasing authority shall be counted as reportable sales 
for IFF purposes.
    (4) The Contractor shall electronically report the quarterly dollar 
value of sales, including ``zero'' sales, by utilizing the automated 
reporting system at an Internet website designated by the General 
Services Administration (GSA)'s Federal Acquisition Service (FAS). Prior 
to using this automated system, the Contractor shall complete contract 
registration with the FAS Vendor Support Center (VSC). The website 
address, as well as registration instructions and reporting procedures, 
will be provided at the time of award. The Contractor shall report sales 
separately for each National Stock Number (NSN), Special Item Number 
(SIN), or sub-item.
    (5) The Contractor shall convert the total value of sales made in 
foreign currency to U.S. dollars using the ``Treasury Reporting Rates of 
Exchange'' issued by the U.S. Department of Treasury, Financial 
Management Service. The Contractor shall use the issue of the Treasury 
report in effect on the last day of the calendar quarter. The report is 
available from Financial Management Service, International Funds Branch, 
Telephone: (202) 874-7994, Internet: http://www.fiscal.treasury.gov/
fsreports/rpt/treasRptRateExch/treasRptRateExch_home.htm.
    (b) The Contractor shall remit the IFF at the rate set by GSA's FAS.
    (1) The Contractor shall remit the IFF to FAS in U.S. dollars within 
30 calendar days after the end of the reporting quarter; final payment 
shall be remitted within 30 days after physical completion of the last 
outstanding task order or delivery order of the contract.

[[Page 237]]

    (2) The IFF represents a percentage of the total quarterly sales 
reported. This percentage is set at the discretion of GSA's FAS. GSA's 
FAS has the unilateral right to change the percentage at any time, but 
not more than once per year. FAS will provide reasonable notice prior to 
the effective date of the change. The IFF reimburses FAS for the costs 
of operating the Federal Supply Schedules Program. FAS recoups its 
operating costs from ordering activities as set forth in 40 U.S.C. 321: 
Acquisition Services Fund. Net operating revenues generated by the IFF 
are also applied to fund initiatives benefitting other authorized FAS 
programs, in accordance with 40 U.S.C. 321. Offerors must include the 
IFF in their prices. The fee is included in the award price(s) and 
reflected in the total amount charged to ordering activities. FAS will 
post notice of the current IFF at https://72a.gsa.gov/ or successor Web 
site as appropriate.
    (c) Within 60 days of award, an FAS representative will provide the 
Contractor with specific written procedural instructions on remitting 
the IFF. FAS reserves the unilateral right to change such instructions 
from time to time, following notification to the Contractor.
    (d) Failure to remit the full amount of the IFF within 30 calendar 
days after the end of the applicable reporting period constitutes a 
contract debt to the United States Government under the terms of FAR 
Subpart 32.6. The Government may exercise all rights under the Debt 
Collection Improvement Act of 1996, including withholding or setting off 
payments and interest on the debt (see FAR clause 52.232-17, Interest). 
Should the Contractor fail to submit the required sales reports, falsify 
them, or fail to timely pay the IFF, this is sufficient cause for the 
Government to terminate the contract for cause.
    Alternate I (JUN 2016): As prescribed in 538.273(b)(1), substitute 
the following paragraphs (a), (b), (c), and (d) for paragraphs (a), (b), 
(c), and (d) of the basic clause:
    (a) Definition. Transactional data encompasses the historical 
details of the products or services delivered by the Contractor during 
the performance of task or delivery orders issued against this contract.
    (b) Reporting of Transactional Data. The Contractor must report all 
transactional data under this contract as follows:

    (1) The Contractor must electronically report transactional data by 
utilizing the automated reporting system at an Internet Web site 
designated by the General Services Administration (GSA) or by uploading 
the data according to GSA instructions. GSA will post registration 
instructions and reporting procedures on the Vendor Support Center Web 
site, https://vsc.gsa.gov. The reporting system Web site address, as 
well as registration instructions and reporting procedures, will be 
provided at the time of award or inclusion of this clause in the 
contract.

    (2) The Contractor must provide, at no additional cost to the 
Government, the following transactional data elements, as applicable:
    (i) Contract or Blanket Purchase Agreement (BPA) Number.
    (ii) Delivery/Task Order Number/Procurement Instrument Identifier 
(PIID).
    (iii) Non Federal Entity.
    (iv) Description of Deliverable.
    (v) Manufacturer Name.
    (vi) Manufacturer Part Number.
    (vii) Unit Measure (each, hour, case, lot).
    (viii) Quantity of Item Sold.
    (ix) Universal Product Code.
    (x) Price Paid per Unit.
    (xi) Total Price.
    Note to paragraph (b)(2): The Contracting Officer may add data 
elements to the standard elements listed in paragraph (b)(2) of this 
section with the approvals listed in GSAM 507.105(c)(3).
    (3) The contractor must report transactional data within 30 calendar 
days from the last calendar day of the month. If there was no contract 
activity during the month, the Contractor must submit a confirmation of 
no reportable transactional data within 30 calendar days of the last 
calendar day of the month.
    (4) The Contractor must report the price paid per unit, total price, 
or any other data elements with an associated monetary value listed in 
(b)(2) of this section, in U.S. dollars.
    (5) The reported price paid per unit and total price must include 
the Industrial Funding Fee (IFF).
    (6) The Contractor must maintain a consistent accounting method of 
transactional data reporting, based on the Contractor's established 
commercial accounting practice.
    (7) Reporting Points. (i) The acceptable points at which 
transactional data may be reported include--
    (A) Issuance of an invoice; or
    (B) Receipt of payment.
    (ii) The Contractor must determine whether to report transactional 
data

[[Page 238]]

on the basis of invoices issued or payments received.
    (8) The Contractor must continue to furnish reports, including 
confirmation of no transactional data, through physical completion of 
the last outstanding task or delivery order of the contract.
    (9) Unless otherwise expressly stated by the ordering activity, 
orders that contain classified information or other or information that 
would compromise national security are exempt from this reporting 
requirement.
    (10) This clause does not exempt the Contractor from fulfilling 
existing reporting requirements contained elsewhere in the contract.
    (11) GSA reserves the unilateral right to change reporting 
instructions following 60 calendar days' advance notification to the 
Contractor.
    (c) Industrial Funding Fee (IFF). (1) This contract includes an IFF 
charged on orders placed against this contract. The IFF is paid by the 
authorized ordering activity but remitted to GSA by the Contractor. The 
IFF reimburses GSA for the costs of operating the Federal Supply 
Schedule program, as set forth in 40 U.S.C. 321: Acquisition Services 
Fund. Net operating revenues generated by the IFF are also applied to 
fund initiatives benefitting other authorized GSA programs, in 
accordance with 40 U.S.C. 321.
    (2) GSA has the unilateral right to change the fee amount at any 
time, but not more than once per year; GSA will provide reasonable 
notice prior to the effective date of any change. GSA will post notice 
of the current IFF on the Vendor Support Center Web site at https://
vsc.gsa.gov.
    (3) Offerors must include the IFF in their prices. The fee is 
included in the awarded price(s) and reflected in the total amount 
charged to ordering activities. The fee will not be included in the 
price of non-contract items purchased pursuant to a separate contracting 
authority, such as a Governmentwide Acquisition Contract (GWAC); a 
separately awarded Federal Acquisition Regulation (FAR) Part 12, FAR 
Part 13, FAR Part 14, or FAR Part 15 procurement; or a non-FAR contract.
    (4) The Contractor must remit the IFF to GSA in U.S. dollars within 
30 calendar days after the last calendar day of the reporting quarter; 
final payment must be remitted within 30 calendar days after physical 
completion of the last outstanding task order or delivery order issued 
against the contract.
    (5) GSA reserves the unilateral right to change remittance 
instructions following 60 calendar days' advance notification to the 
Contractor.
    (d) The Contractor's failure to remit the full amount of the IFF 
within 30 calendar days after the end of the applicable reporting period 
constitutes a contract debt to the United States Government under the 
terms of FAR Subpart 32.6. The Government may exercise all rights under 
the Debt Collection Improvement Act of 1996, including withholding or 
offsetting payments and interest on the debt (see FAR clause 52.232-17, 
Interest). If the Contractor fails to submit the required transactional 
data reports, falsifies them, or fails to timely pay the IFF, these 
reasons constitute sufficient cause for the Government to terminate the 
contract for cause.

                             (End of clause)

[68 FR 41288, July 11, 2003, as amended at 79 FR 21402, Apr. 16, 2014; 
79 FR 28448, May 16, 2014; 81 FR 1533, Jan. 13, 2016; 81 FR 3731, Jan. 
22, 2016; 81 FR 41138, June 23, 2016]



552.238-75  Price Reductions.

    As prescribed in 538.273(b)(2), insert the following clause:

                       Price Reductions (JUL 2016)

    (a) Before award of a contract, the Contracting Officer and the 
Offeror will agree upon (1) the customer (or category of customers) 
which will be the basis of award, and (2) the Government's price or 
discount relationship to the identified customer (or category of 
customers). This relationship shall be maintained through out the 
contract period. Any change in the Contractor's commercial pricing or 
discount arrangement applicable to the identified customer (or category 
of customers) which disturbs this relationship shall constitute a price 
reduction.
    (b) During the contract period, the Contractor shall report to the 
Contracting Officer all price reductions to the customer (or category of 
customers) that was the basis of award. The Contractor's report shall 
include an explanation of the conditions under which the reductions were 
made.

[[Page 239]]

    (c)(1) A price reduction shall apply to purchases under this 
contract if, after the date negotiations conclude, the Contractor--
    (i) Revises the commercial catalog, pricelist, schedule or other 
document upon which contract award was predicated to reduce prices;
    (ii) Grants more favorable discounts or terms and conditions than 
those contained in the commercial catalog, pricelist, schedule or other 
documents upon which contract award was predicated; or
    (iii) Grants special discounts to the customer (or category of 
customers) that formed the basis of award, and the change disturbs the 
price/discount relationship of the Government to the customer (or 
category of customers) that was the basis of award.
    (2) The Contractor shall offer the price reduction to the eligible 
ordering activity with the same effective date, and for the same time 
period, as extended to the commercial customer (or category of 
customers).
    (d) There shall be no price reduction for sales--
    (1) To commercial customers under firm, fixed-price definite 
quantity contracts with specified delivery in excess of the maximum 
order threshold specified in this contract;
    (2) To Federal agencies;
    (3) Made to Eligible Ordering Activities identified in GSAR clause 
552.238-78 when the order is placed under this contract (and the 
Eligible Ordering Activities identified in GSAR clause 552.238-78 is the 
agreed upon customer or category of customer that is the basis of 
award); or
    (4) Caused by an error in quotation or billing, provided adequate 
documentation is furnished by the Contractor to the Contracting Officer.
    (e) The Contractor may offer the Contracting Officer a voluntary 
Governmentwide price reduction at any time during the contract period.
    (f) The Contractor shall notify the Contracting Officer of any price 
reduction subject to this clause as soon as possible, but not later than 
15 calendar days after its effective date.
    (g) The contractor will be modified to reflect any price reduction 
which becomes applicable in accordance with this clause.

                             (End of clause)

    Alternate I (JUN 2016 As prescribed in 538.273(b)(2)(ii), substitute 
the following paragraphs (a) and (b) for paragraphs (a), (b), (c), (d), 
(e), (f) and (g) of the basic clause:
    (a) The Government may request from the Contractor, and the 
Contractor may provide to the Government, a temporary or permanent price 
reduction at any time during the contract period.
    (b) The Contractor may offer the Contracting Officer a voluntary 
price reduction at any time during the contract period.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24381, May 7, 2003; 69 
FR 28065, May 18, 2004; 81 FR 36430, June 6, 2016; 81 FR 41139, June 23, 
2016; 81 FR 43957, July 6, 2016]



552.238-76  [Reserved]



552.238-77  Definition (Federal Supply Schedules)--Non-Federal Entity.

    As prescribed in 538.7004(a), insert the following clause:

   Definition (Federal Supply Schedules)--Non-Federal Entity (JUL 2016)

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78) 
authorized to place orders under Federal Supply Schedule contracts.

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 81 FR 36430, June 6, 2016]



552.238-78  Scope of Contract (Eligible Ordering Activities).

    As prescribed in 538.7004(b), insert the following clause:

       Scope of Contract (Eligible Ordering Activities) (JUL 2016)

    (a) This solicitation is issued to establish contracts which may be 
used on a nonmandatory basis by the agencies and activities named below, 
as a source of supply for the supplies or services described herein, for 
domestic and/or overseas delivery. For Special Item Number 132-53, 
Wireless Services ONLY, limited geographic coverage (consistent with the 
Offeror's commercial practice) may be proposed.
    (1) Executive agencies (as defined in FAR Subpart 2.1) including 
nonappropriated fund activities as prescribed in 41 CFR 101-26.000);
    (2) Government contractors authorized in writing by a Federal agency 
pursuant to FAR 51.1;
    (3) Mixed ownership Government corporations (as defined in the 
Government Corporation Control Act);
    (4) Federal Agencies, including establishments in the legislative or 
judicial branch of government (except the Senate, the House of 
Representatives and the Architect of the Capitol and any activities 
under the direction of the Architect of the Capitol).
    (5) The District of Columbia;

[[Page 240]]

    (6) Tribal governments when authorized under 25 U.S.C. 450j(k);
    (7) Tribes or tribally designated housing entities pursuant to 25 
U.S.C. 4111(j);
    (8) Qualified Nonprofit Agencies as authorized under 40 U.S.C. 
502(b); and
    (9) Organizations, other than those identified in paragraph (d) of 
this clause, authorized by GSA pursuant to statute or regulation to use 
GSA as a source of supply.
    (b) Definitions. Domestic delivery is delivery within the 48 
contiguous states, Alaska, Hawaii, Puerto Rico, Washington, DC, and U.S. 
territories. Domestic delivery also includes a port or consolidation 
point, within the aforementioned areas, for orders received from 
overseas activities.
    Overseas delivery is delivery to points outside of the 48 contiguous 
states, Washington, DC, Alaska, Hawaii, Puerto Rico, and U.S. 
territories.
    (c) Offerors are requested to check one of the following boxes:
    
     Contractor will provide domestic and overseas delivery.
    
     Contractor will provide overseas delivery only.
    
     Contractor will provide domestic delivery only.
    (d) The following activities may place orders against Schedule 70 
contracts:
    (1) State and local government may place orders against Schedule 70 
contracts, and Consolidated Schedule contracts containing information 
technology Special Item Numbers, and Schedule 84 contracts, on an 
optional basis; PROVIDED, the Contractor accepts order(s) from such 
activities;
    (2) The American National Red Cross may place orders against Federal 
Supply Schedules for products and services in furtherance of the 
purposes set forth in its Federal charter (36 U.S.C. 300102); PROVIDED, 
the Contractor accepts order(s) from the American National Red Cross; 
and
    (3) Other qualified organizations, as defined in section 309 of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5152), may place orders against Federal Supply Schedules for 
products and services determined to be appropriate to facilitate 
emergency preparedness and disaster relief and set forth in guidance by 
the Administrator of General Services, in consultation with the 
Administrator of the Federal Emergency Management Agency; PROVIDED, the 
Contractor accepts order(s) from such activities.
    (4) State and local governments may place orders against Federal 
Supply Schedules for goods or services determined by the Secretary of 
Homeland Security to facilitate recovery from a major disaster declared 
by the President under the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5121, et seq.) to facilitate 
disaster preparedness or response, or to facilitate recovery from 
terrorism or nuclear, biological, chemical, or radiological attack; 
PROVIDED, the Contractor accepts order(s) from such activities.
    (e) Articles or services may be ordered from time to time in such 
quantities as may be needed to fill any requirement, subject to the 
Order Limitations thresholds which will be specified in resultant 
contracts. Overseas activities may place orders directly with schedule 
contractors for delivery to CONUS port or consolidation point.
    (f)(1) The Contractor is obligated to accept orders received from 
activities within the Executive branch of the Federal Government.
    (2) The Contractor is not obligated to accept orders received from 
activities outside the Executive branch; however, the Contractor is 
encouraged to accept such orders. If the Contractor elects to accept 
such orders, all provisions of the contract shall apply, including 
clause 552.232-79, Payment by Credit Card. If the Contractor is 
unwilling to accept such orders, and the proposed method of payment is 
not through the Credit Card, the Contractor shall return the order by 
mail or other means of delivery within 5 workdays from receipt. If the 
Contractor is unwilling to accept such orders, and the proposed method 
of payment is through the Credit Card, the Contractor must so advise the 
ordering activity within 24 hours of receipt of order. (Reference clause 
552.232-79, Payment by Credit Card.) Failure to return an order or 
advise the ordering activity within the time frames of this paragraph 
shall constitute acceptance whereupon all provisions of the contract 
shall apply.
    (g) The Government is obligated to purchase under each resultant 
contract a guaranteed minimum of $2,500 (two thousand, five hundred 
dollars) during the contract term.
    (h) All users of GSA's Federal Supply Schedules, including non-
Federal users, shall use the schedules in accordance with the ordering 
guidance provided by the Administrator of General Services. GSA 
encourages non-Federal users to follow the Schedule Ordering Procedures 
set forth in the Federal Acquisition Regulation (FAR) 8.4, but they may 
use different established competitive ordering procedures if such 
procedures are needed to satisfy their state and local acquisition 
regulations and/or organizational policies.

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 69 FR 28065, May 18, 2004; 72 
FR 4654, Feb. 1, 2007; 73 FR 54339, Sept. 19, 2008; 81 FR 36430, June 6, 
2016]

[[Page 241]]



552.238-79  Use of Federal Supply Schedule Contracts by Non-Federal Entities

    As prescribed in 538.7004(c), insert the following clause:

 Use of Federal Supply Schedule Contracts by Non-Federal Entities (JUL 
                                  2016)

    (a) If an entity identified in paragraph (d) of the clause at 
552.238-78, Scope of Contract (Eligible Ordering Activities), elects to 
place an order under this contract, the entity agrees that the order 
shall be subject to the following conditions:
    (1) When the Contractor accepts an order from such an entity, a 
separate contract is formed which incorporates by reference all the 
terms and conditions of the Schedule contract except the Disputes 
clause, the patent indemnity clause, and the portion of the Commercial 
Item Contract Terms and Conditions that specifies ``Compliance with laws 
unique to Government contracts'' (which applies only to contracts with 
entities of the Executive branch of the U.S. Government). The parties to 
this new contract which incorporates the terms and conditions of the 
Schedule contract are the individual ordering activity and the 
Contractor. The U.S. Government shall not be liable for the performance 
or nonperformance of the new contract. Disputes which cannot be resolved 
by the parties to the new contract may be litigated in any State or 
Federal court with jurisdiction over the parties, applying Federal 
procurement law, including statutes, regulations and case law, and, if 
pertinent, the Uniform Commercial Code. To the extent authorized by law, 
parties to this new contract are encouraged to resolve disputes through 
Alternative Dispute Resolution. Likewise, a Blanket Purchase Agreement 
(BPA), although not a contract, is an agreement that may be entered into 
by the Contractor with such an entity and the Federal Government is not 
a party.
    (2) Where contract clauses refer to action by a Contracting Officer 
or a Contracting Officer of GSA, that shall mean the individual 
responsible for placing the order for the ordering activity (e.g., FAR 
52.212-4 at paragraph (f) and FSS clause I-FSS-249 B.)
    (3) As a condition of using this contract, eligible ordering 
activities agree to abide by all terms and conditions of the Schedule 
contract, except for those deleted clauses or portions of clauses 
mentioned in paragraph (a)(1) of this clause. Ordering activities may 
include terms and conditions required by statute, ordinance, regulation, 
order, or as otherwise allowed by State and local government entities as 
a part of a statement of work (SOW) or statement of objective (SOO) to 
the extent that these terms and conditions do not conflict with the 
terms and conditions of the Schedule contract. The ordering activity and 
the Contractor expressly acknowledge that, in entering into an agreement 
for the ordering activity to purchase goods or services from the 
Contractor, neither the ordering activity nor the Contractor will look 
to, primarily or in any secondary capacity, or file any claim against 
the United States or any of its agencies with respect to any failure of 
performance by the other party.
    (4) The ordering activity is responsible for all payments due the 
Contractor under the contract formed by acceptance of the ordering 
activity's order, without recourse to the agency of the U.S. Government, 
which awarded the Schedule contract.
    (5) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall fulfill orders placed by such entities, which are not 
declined within the 5-day period.
    (6) The supplies or services purchased will be used for governmental 
purposes only and will not be resold for personal use. Disposal of 
property acquired will be in accordance with the established procedures 
of the ordering activity for the disposal of personal property.
    (b) If the Schedule Contractor accepts an order from an entity 
identified in paragraph (d) of the clause at 552.238-78, Scope of 
Contract (Eligible Ordering Activities), the Contractor agrees to the 
following conditions:
    (1) The ordering activity is responsible for all payments due the 
Contractor for the contract formed by acceptance of the order, without 
recourse to the agency of the U.S. Government, which awarded the 
Schedule contract.
    (2) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall decline the order using the same means as those used to 
place the order. The Contractor shall fulfill orders placed by such 
entities, which are not declined within the 5-day period.
    (c) In accordance with clause 552.238-74, Industrial Funding Fee and 
Sales Reporting, the Contractor must report the quarterly dollar value 
of all sales under this contract. When submitting sales reports, the 
Contractor must report two dollar values for each Special Item Number:
    (1) The dollar value for sales to entities identified in paragraph 
(a) of the clause at 552.238-78, Scope of Contract (Eligible Ordering 
Activities), and
    (2) The dollar value for sales to entities identified in paragraph 
(d) of clause 552.238-78.

[[Page 242]]

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 68 FR 41289, July 11,



552.238-80  [Reserved]



552.238-81  Modification (Federal Supply Schedule).

    As prescribed in 538.273(b), insert the following clause:

           Modifications (Federal Supply Schedule) (APR 2014)

    (a) General. The Contractor may request a contract modification by 
submitting a request to the Contracting Officer for approval, except as 
noted in paragraph (d) of this clause. At a minimum, every request shall 
describe the proposed change(s) and provide the rationale for the 
requested change(s).
    (b) Types of Modifications. (1) Additional items/additional SINs. 
When requesting additions, the following information must be submitted:
    (i) Information requested in paragraphs (1) and (2) of the 
Commercial Sales Practice Format to add SINs.
    (ii) Discount information for the new items(s) or new SIN(s). 
Specifically, submit the information requested in paragraphs 3 through 5 
of the Commercial Sales Practice Format. If this information is the same 
as the initial award, a statement to that effect may be submitted 
instead.
    (iii) Information about the new item(s) or the item(s) under the new 
SIN(s) must be submitted in accordance with the request for proposal.
    (iv) Delivery time(s) for the new item(s) or the item(s) under the 
new SIN(s) must be submitted in accordance with the request for 
proposal.
    (v) Production point(s) for the new item(s) or the item(s) under the 
new SIN(s) must be submitted if required by FAR 52.215-6, Place of 
Performance.
    (vi) Hazardous Material information (if applicable) must be 
submitted as required by FAR 52.223-3 (Alternate I), Hazardous Material 
Identification and Material Safety Data.
    (vii) Any information requested by FAR 52.212-3(f), Offeror 
Representations and Certifications--Commercial Items, that may be 
necessary to assure compliance with FAR 52.225-1, Buy American Act--
Balance of Payments Programs--Supplies.
    (2) Deletions. The Contractors shall provide an explanation for the 
deletion. The Government reserves the right to reject any subsequent 
offer of the same item or a substantially equal item at a higher price 
during the same contract period, if the contracting officer finds the 
higher price to be unreasonable when compared with the deleted item.
    (3) Price Reduction. The Contractor shall indicate whether the price 
reduction falls under the item (i), (ii), or (iii) of paragraph (c)(1) 
of the Price Reductions clause at 552.238-75. If the Price reduction 
falls under item (i), the Contractor shall submit a copy of the dated 
commercial price list. If the price reduction falls under item (ii) or 
(iii), the Contractor shall submit a copy of the applicable price 
list(s), bulletins or letters or customer agreements which outline the 
effective date, duration, terms and conditions of the price reduction.
    (c) Effective dates. The effective date of any modification is the 
date specified in the modification, except as otherwise provided in the 
Price Reductions clause at 552.238-75.
    (d) Electronic File Updates. The Contractor shall update electronic 
file submissions to reflect all modifications. For additional items or 
SINs, the Contractor shall obtain the Contracting Officer's approval 
before transmitting changes. Contract modifications will not be made 
effective until the Government receives the electronic file updates. The 
Contractor may transmit price reductions, item deletions, and 
corrections without prior approval. However, the Contractor shall notify 
the Contracting Officer as set forth in the Price Reductions clause at 
552.238-75.
    (e) Amendments to Paper Federal Supply Schedule Price Lists.
    (1) The Contractor must provide supplements to its paper price 
lists, reflecting the most current changes. The Contractor may either:
    (i) Distribute a supplemental paper Federal Supply Schedule Price 
List within 15 workdays after the effective date of each modification.
    (ii) Distribute quarterly cumulative supplements. The period covered 
by a cumulative supplement is at the discretion of the Contractor, but 
may not exceed three calendar months from the effective date of the 
earliest modification. For example, if the first modification occurs in 
February, the quarterly supplement must cover February-April, and every 
three month period after. The Contractor must distribute each quarterly 
cumulative supplement within 15 workdays from the last day of the 
calendar quarter.
    (2) At a minimum, the Contractor shall distribute each supplement to 
those ordering activities that previously received the basic document. 
In addition, the Contractor shall submit two copies of each supplement 
to the Contracting Officer and one copy to the FSS Schedule Information 
Center.

[[Page 243]]

                             (End of Clause)

    Alternate I (JUN 2016). As prescribed in 538.273(b)(3)(i), add the 
following paragraph (f) to the basic clause:

    (f) Electronic submission of modification requests is mandatory via 
eMod (http://eOffer.gsa.gov), unless otherwise stated in the electronic 
submission standards and requirements at the Vendor Support Center Web 
site (http://vsc.gsa.gov). If the electronic submissions standards and 
requirements information is updated at the Vendor Support Center Web 
site, Contractors will be notified prior to the effective date of the 
change.
    Alternate II (JUN 2016). As prescribed in 538.273(b)(3)(ii), 
substitute the following paragraph (b) for paragraph (b) of the basic 
clause:
    (b) Types of Modifications.
    (1) Additional items/additional SINs. When requesting additions, the 
Contractor must submit the following information:

    (i) Information about the new item(s) or the item(s) under the new 
SIN(s) must be submitted in accordance with the instructions in the 
solicitation.
    (ii) Delivery time(s) for the new item(s) or the item(s) under the 
new SIN(s) must be submitted in accordance with the request for 
proposal.
    (iii) Production point(s) for the new item(s) or the item(s) under 
the new SIN(s) must be submitted if required by FAR 52.215-6, Place of 
Performance.
    (iv) Hazardous Material information (if applicable) must be 
submitted as required by FAR 52.223-3 (Alternate I), Hazardous Material 
Identification and Material Safety Data.
    (v) Any information requested by FAR 52.212-3(f), Offeror 
Representations and Certifications-Commercial Items, that may be 
necessary to assure compliance with FAR 52.225-1, Buy American Act-
Balance of Payments Programs-Supplies.
    (2) Deletions. The Contractor must provide an explanation for the 
deletion. The Government reserves the right to reject any subsequent 
offer of the same item or a substantially equal item at a higher price 
during the same contract period, if the Contracting Officer determines 
that the higher price is unreasonable compared to the price of the 
deleted item.

[79 FR 14184, Mar. 13, 2014; 79 FR 20107, Apr. 11, 2014; 79 FR 29136, 
May 21, 2014; 81 FR 41139, June 23, 2016]



552.239-70  Information Technology Security Plan and Security Authorization.

    As prescribed in 539.7002(a), insert the following provision:

  Information Technology Security Plan and Security Authorization (JUN 
                                  2011)

    All offers/bids submitted in response to this solicitation must 
address the approach for completing the security plan and certification 
and security authorization requirements as required by the clause at 
552.239-71, Security Requirements for Unclassified Information 
Technology Resources.

                           (End of provision)

[76 FR 34888, June 15, 2011]



552.239-71  Security Requirements for Unclassified Information 
Technology Resources.

    As prescribed in 539.7002(b), insert the following clause:

Security Requirements for Unclassified Information Technology Resources 
                               (JAN 2012)

    (a) General. The Contractor shall be responsible for information 
technology (IT) security, based on General Services Administration (GSA) 
risk assessments, for all systems connected to a GSA network or operated 
by the Contractor for GSA, regardless of location. This clause is 
applicable to all or any part of the contract that includes information 
technology resources or services in which the Contractor has physical or 
electronic access to GSA's information that directly supports the 
mission of GSA, as indicated by GSA. The term information technology, as 
used in this clause, means any equipment, including telecommunications 
equipment that is used in the automatic acquisition, storage, 
manipulation, management, control, display, switching, interchange, 
transmission, or reception of data or information. This includes major 
applications as defined by OMB Circular A-130. Examples of tasks that 
require security provisions include:
    (1) Hosting of GSA e-Government sites or other IT operations;
    (2) Acquisition, transmission, or analysis of data owned by GSA with 
significant replacement cost should the Contractors copy be corrupted;
    (3) Access to GSA major applications at a level beyond that granted 
the general public; e.g., bypassing a firewall; and
    (4) Any new information technology systems acquired for operations 
within the GSA must comply with the requirements of

[[Page 244]]

HSPD-12 and OMB M-11-11. Usage of the credentials must be implemented in 
accordance with OMB policy and NIST guidelines (e.g., NIST SP 800-116). 
The system must operate within the GSA's access management environment. 
Exceptions must be requested in writing and can only be granted by the 
GSA Senior Agency Information Security Officer.
    (b) IT Security Plan. The Contractor shall develop, provide, 
implement, and maintain an IT Security Plan. This plan shall describe 
the processes and procedures that will be followed to ensure appropriate 
security of IT resources that are developed, processed, or used under 
this contract. The plan shall describe those parts of the contract to 
which this clause applies. The Contractors IT Security Plan shall comply 
with applicable Federal laws that include, but are not limited to, 40 
U.S.C. 11331, the Federal Information Security Management Act (FISMA) of 
2002, and the E-Government Act of 2002. The plan shall meet IT security 
requirements in accordance with Federal and GSA policies and procedures. 
GSA's Office of the Chief Information Officer issued ``CIO IT Security 
Procedural Guide 09-48, Security Language for Information Technology 
Acquisitions Efforts,'' to provide IT security standards, policies and 
reporting requirements. This document is incorporated by reference in 
all solicitations and contracts or task orders where an information 
system is contractor owned and operated on behalf of the Federal 
Government. The guide can be accessed at http://www.gsa.gov/portal/
category/25690. Specific security requirements not specified in ``CIO IT 
Security Procedural Guide 09-48, Security Language for Information 
Technology Acquisitions Efforts'' shall be provided by the requiring 
activity.
    (c) Submittal of IT Security Plan. Within 30 calendar days after 
contract award, the Contractor shall submit the IT Security Plan to the 
Contracting Officer and Contracting Officers Representative (COR) for 
acceptance. This plan shall be consistent with and further detail the 
approach contained in the contractors proposal or sealed bid that 
resulted in the award of this contract and in compliance with the 
requirements stated in this clause. The plan, as accepted by the 
Contracting Officer and COR, shall be incorporated into the contract as 
a compliance document. The Contractor shall comply with the accepted 
plan.
    (d) Submittal of a Continuous Monitoring Plan. The Contractor must 
develop a continuous monitoring strategy that includes:
    (1) A configuration management process for the information system 
and its constituent components;
    (2) A determination of the security impact of changes to the 
information system and environment of operation;
    (3) Ongoing security control assessments in accordance with the 
organizational continuous monitoring strategy;
    (4) Reporting the security state of the information system to 
appropriate GSA officials; and
    (5) All GSA general support systems and applications must implement 
continuous monitoring activities in accordance with this guide and NIST 
SP 800-37 Revision 1, Guide for Applying the Risk Management Framework 
to Federal Information Systems: A Security Life Cycle Approach.
    (e) Security authorization. Within six (6) months after contract 
award, the Contractor shall submit written proof of IT security 
authorization for acceptance by the Contracting Officer. Such written 
proof may be furnished either by the Contractor or by a third party. The 
security authorization must be in accordance with NIST Special 
Publication 800-37. This security authorization will include a final 
security plan, risk assessment, security test and evaluation, and 
disaster recovery plan/continuity of operations plan. This security 
authorization, when accepted by the Contracting Officer, shall be 
incorporated into the contract as a compliance document, and shall 
include a final security plan, a risk assessment, security test and 
evaluation, and disaster recovery/continuity of operations plan. The 
Contractor shall comply with the accepted security authorization 
documentation.
    (f) Annual verification. On an annual basis, the Contractor shall 
submit verification to the Contracting Officer that the IT Security plan 
remains valid.
    (g) Warning notices. The Contractor shall ensure that the following 
banners are displayed on all GSA systems (both public and private) 
operated by the Contractor prior to allowing anyone access to the 
system:

                                Government Warning

                         **WARNING**WARNING**WARNING**

    Unauthorized access is a violation of U.S. law and General Services 
Administration policy, and may result in criminal or administrative 
penalties. Users shall not access other users or system files without 
proper authority. Absence of access controls IS NOT authorization for 
access! GSA information systems and related equipment are intended for 
communication, transmission, processing and storage of U.S. Government 
information. These systems and equipment are subject to monitoring by 
law enforcement and authorized Department officials. Monitoring may 
result in the acquisition, recording, and analysis of all data being 
communicated, transmitted, processed or stored in this system by law 
enforcement and authorized Department officials. Use of this system 
constitutes consent to such monitoring.

[[Page 245]]

                         **WARNING**WARNING**WARNING**

    (h) Privacy Act notification. The Contractor shall ensure that the 
following banner is displayed on all GSA systems that contain Privacy 
Act information operated by the Contractor prior to allowing anyone 
access to the system:
    This system contains information protected under the provisions of 
the Privacy Act of 1974 (Pub. L. 93-579). Any privacy information 
displayed on the screen or printed shall be protected from unauthorized 
disclosure. Employees who violate privacy safeguards may be subject to 
disciplinary actions, a fine of up to $5,000, or both.
    (i) Privileged or limited privileges access. Contractor personnel 
requiring privileged access or limited privileges access to systems 
operated by the Contractor for GSA or interconnected to a GSA network 
shall adhere to the specific contract security requirements contained 
within this contract and/or the Contract Security Classification 
Specification (DD Form 254).
    (j) Training. The Contractor shall ensure that its employees 
performing under this contract receive annual IT security training in 
accordance with OMB Circular A-130, FISMA, and NIST requirements, as 
they may be amended from time to time during the term of this contract, 
with a specific emphasis on the rules of behavior.
    (k) GSA access. The Contractor shall afford GSA access to the 
Contractor's and subcontractors' facilities, installations, operations, 
documentation, databases, IT systems and devices, and personnel used in 
performance of the contract, regardless of the location. Access shall be 
provided to the extent required, in GSA's judgment, to conduct an 
inspection, evaluation, investigation or audit, including vulnerability 
testing to safeguard against threats and hazards to the integrity, 
availability and confidentiality of GSA data or to the function of 
information technology systems operated on behalf of GSA, and to 
preserve evidence of computer crime. This information shall be available 
to GSA upon request.
    (l) Subcontracts. The Contractor shall incorporate the substance of 
this clause in all subcontracts that meet the conditions in paragraph 
(a) of this clause.
    (m) Notification regarding employees. The Contractor shall 
immediately notify the Contracting Officer when an employee either 
begins or terminates employment when that employee has access to GSA 
information systems or data. If an employee's employment is terminated, 
for any reason, access to GSA's information systems or data shall be 
immediately disabled and the credentials used to access the information 
systems or data shall be immediately confiscated.
    (n) Termination. Failure on the part of the Contractor to comply 
with the terms of this clause may result in termination of this 
contract.

                             (End of clause)

[76 FR 34888, June 15, 2011, as amended at 77 FR 751, Jan. 6, 2012]



552.241-70  Availability of Funds for the Next Fiscal Year or Quarter.

    As prescribed in 541.501, insert the clause 552.241-70, Availability 
of Funds for the Next Fiscal Year or Quarter, instead of FAR 52.232-19, 
in all utility acquisitions.

  Availability of Funds for the Next Fiscal Year or Quarter (AUG 2010)

    Funds are not presently available for performance under this 
contract beyond ______. The Government's obligation for performance of 
this contract beyond that date is contingent upon the availability of 
appropriated funds from which payment for contract purposes can be made. 
No legal liability on the part of the Government for any payment may 
arise for performance under this contract beyond ______, until funds are 
made available to the Contracting Officer for performance and until the 
Contractor receives notice of availability, to be confirmed in writing 
by the Contracting Officer.

                             (End of clause)

[75 FR 48873, Aug. 12, 2010]



552.241-71  Disputes (Utility Contracts).

    As prescribed in 541.501, insert clause 552.241-71, Disputes 
(Utility Contracts), in solicitations and contracts for utility services 
subject to the jurisdiction and regulation of a utility rate commission.

                 Disputes (Utility Contracts) (AUG 2010)

    The requirements of the Disputes clause at FAR 52.233-1 are 
supplemented to provide that matters involving the interpretation of 
tariffed retail rates, tariff rate schedules, and tariffed terms 
provided under this contract are subject to the jurisdiction and 
regulation of the utility rate commission having jurisdiction.

                             (End of clause)

[75 FR 48873, Aug. 12, 2010]

[[Page 246]]



552.242-70  Status Report of Orders and Shipments.

    As prescribed in 542.1107, insert the following clause:

           Status Report of Orders and Shipments (FEB 9, 2009)

    (a) The Contractor shall furnish to the Administrative Contracting 
Officer (ACO) a report covering orders received and shipments made 
during each calendar month of contract performance. The information 
required by the Government shall be reported on GSA Form 1678, Status 
Report of Orders and Shipments, in accordance with instructions on the 
form. The information required by the GSA Form 1678 may also be 
submitted in an automated printout form if authorized by the ACO. 
Alternatively, the required information may be reported by electronic 
data interchange using ANSI standards. For further information, contact 
GSA, Contract Administration Division [Insert appropriate telephone 
number of QVOC] Reports shall be forwarded to the ACO no later than the 
seventh workday of the succeeding month.
    (b) A copy of GSA Form 1678 will be forwarded to the Contractor with 
the contract. Additional copies of the form, if needed, may be 
reproduced by the Contractor.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 863, Jan. 9, 2009]



552.243-71  Equitable Adjustments.

    As prescribed in 543.205, insert the following clause:

                    Equitable Adjustments (JAN 2009)

    (a) This clause governs the determination of equitable adjustments 
to which the Contractor may be entitled under the ``Changes'' clause 
prescribed by FAR 52.243-4, the ``Differing Site Conditions'' clause 
prescribed by FAR 52.236-2, and any other provision of this contract 
allowing entitlement to an equitable adjustment. This clause does not 
govern determination of the Contractor's relief allowable under the 
``Suspension of Work'' clause prescribed by FAR 52.242-14.
    (b) At the written request of the Contracting Officer, the 
Contractor shall submit a proposal, in accordance with the requirements 
set forth herein, for an equitable adjustment to the contract for 
changes or other conditions that may entitle a Contractor to an 
equitable adjustment. If the Contractor deems an oral or written order 
to be a change to the contract, it shall promptly submit to the 
Contracting Officer a proposal for equitable adjustment attributable to 
such deemed change. The proposal shall also conform to the requirements 
set forth herein.
    (c) The proposal shall be submitted within the time specified in the 
``Changes'' clause, or such other time as may reasonably be required by 
the Contracting Officer. In the case of a proposal submitted based on 
the ``Differing Site Conditions'' clause, the notice requirement of that 
clause shall be met.
    (d) Proposals for equitable adjustments, including no cost requests 
for adjustment of the contract's required completion date, shall include 
a detailed breakdown of the following elements, as applicable:
    (1) Direct costs.
    (2) Markups.
    (3) Change to the time for completion specified in the contract.
    (e) Direct costs. The Contractor shall separately identify each item 
of deleted and added work associated with the change or other condition 
giving rise to entitlement to an equitable adjustment, including 
increases or decreases to unchanged work impacted by the change. For 
each item of work so identified, the Contractor shall propose for itself 
and, if applicable, its first two tiers of subcontractors, the following 
direct costs:
    (1) Material cost broken down by trade, supplier, material 
description, quantity of material units, and unit cost (including all 
manufacturing burden associated with material fabrication and cost of 
delivery to site, unless separately itemized);
    (2) Labor cost broken down by trade, employer, occupation, quantity 
of labor hours, and burdened hourly labor rate, together with 
itemization of applied labor burdens (exclusive of employer's overhead, 
profit, and any labor cost burdens carried in employer's overhead rate);
    (3) Cost of equipment required to perform the work, identified with 
material to be placed or operation to be performed;
    (4) Cost of preparation and/or revision to shop drawings and other 
submittals with detail set forth in paragraphs (e)(1) and (e)(2) of this 
clause;
    (5) Delivery costs, if not included in material unit costs;
    (6) Time-related costs not separately identified as direct costs, 
and not included in the Contractor's or subcontractors' overhead rates, 
as specified in paragraph (g) of this clause; and
    (7) Other direct costs.
    (f) Marked-up costs of subcontractors below the second tier may be 
treated as other direct costs of a second tier subcontractor, unless the 
Contracting Officer requires a detailed breakdown under paragraph (i) of 
this clause.
    (g) Extensions of Time and Time-Related Costs. The Contractor shall 
propose a daily rate for each firm's time-related costs during the 
affected period, and, for each firm, the increase or decrease in the 
number of work

[[Page 247]]

days of performance attributable to the change or other condition giving 
rise to entitlement to an equitable adjustment, with supporting 
analysis. Entitlement to time and time-related costs shall be determined 
as follows:
    (1) Increases or decreases to a firm's time-related costs shall be 
allowed only if such increase or decrease necessarily and exclusively 
results from the change or other condition giving rise to entitlement to 
an equitable adjustment.
    (2) The Contractor shall not be entitled to an extension of time or 
recovery of its own time-related costs except to the extent that such 
change or other condition necessarily and exclusively causes its 
duration of performance to extend beyond the completion date specified 
in the contract.
    (3) Costs may be characterized as time-related costs only if they 
are incurred solely to support performance of this contract and the 
increase or decrease in such costs is solely dependent upon the duration 
of a firm's performance of work.
    (4) Costs may not be characterized as time-related costs if they are 
included in the calculation of a firm's overhead rate.
    (5) Equitable adjustment of time and time-related costs shall not be 
allowed unless the analysis supporting the proposal complies with 
provisions specified elsewhere in this contract regarding the 
Contractor's project schedule.
    (h) Markups. For each firm whose direct costs are separately 
identified in the proposal, the Contractor shall propose an overhead 
rate, profit rate, and where applicable, a bond rate and insurance rate. 
Markups shall be determined and applied as follows:
    (1) Overhead rates shall be negotiated, and may be subject to audit 
and adjustment.
    (2) Profit rates shall be negotiated, but shall not exceed ten 
percent, unless entitlement to a higher rate of profit may be 
demonstrated.
    (3) The Contractor and its subcontractor[s] shall not be allowed 
overhead or profit on the overhead or profit received by a 
subcontractor, except to the extent that the subcontractor's costs are 
properly included in other direct costs as specified in paragraph (f) of 
this clause.
    (4) Overhead rates shall be applied to the direct costs of work 
performed by a firm, and shall not be allowed on the direct costs of 
work performed by a subcontractor to that firm at any tier except as set 
forth below in paragraphs (h)(6) and (h)(7) of this clause.
    (5) Profit rates shall be applied to the sum of a firm's direct 
costs and the overhead allowed on the direct costs of work performed by 
that firm.
    (6) Overhead and profit shall be allowed on the direct costs of work 
performed by a subcontractor within two tiers of a firm at rates equal 
to only fifty percent of the overhead and profit rates negotiated 
pursuant to paragraphs (h)(1) and (h)(2) of this clause for that firm, 
but not in excess of ten percent when combined.
    (7) Overhead and profit shall not be allowed on the direct costs of 
a subcontractor more than two tiers below the firm claiming overhead and 
profit for subcontractor direct costs.
    (8) If changes to a Contractor's or subcontractor's bond or 
insurance premiums are computed as a percentage of the gross change in 
contract value, markups for bond and insurance shall be applied after 
all overhead and profit is applied. Bond and insurance rates shall not 
be applied if the associated costs are included in the calculation of a 
firm's overhead rate.
    (9) No markup shall be applied to a firm's costs other than those 
specified herein.
    (i) At the request of the Contracting Officer, the Contractor shall 
provide such other information as may be reasonably necessary to allow 
evaluation of the proposal. If the proposal includes significant costs 
incurred by a subcontractor below the second tier, the Contracting 
Officer may require the same detail for those costs as required for the 
first two tiers of subcontractors, and markups shall be applied to these 
subcontractor costs in accordance with paragraph (h).
    (j) Proposal Preparation Costs. If performed by the firm claiming 
them, proposal preparations costs shall be included in the labor hours 
proposed as direct costs. If performed by an outside consultant or law 
firm, proposal preparation costs shall be treated as other direct costs 
to the firm incurring them. Requests for proposal preparation costs 
shall include the following:
    (1) A copy of the contract or other documentation identifying the 
consultant or firm, the scope of the services performed, the manner in 
which the consultant or firm was to be compensated, and if compensation 
was paid on an hourly basis, the fully burdened and marked-up hourly 
rates for the services provided.
    (2) If compensation was paid on an hourly basis, documentation of 
the quantity of hours worked, including descriptions of the activities 
for which the hours were billed, and applicable rates.
    (3) Written proof of payment of the costs requested. The sufficiency 
of the proof shall be determined by the Contracting Officer.
    (k) Proposal preparation costs shall be allowed only if--
    (1) The nature and complexity of the change or other condition 
giving rise to entitlement to an equitable adjustment warrants 
estimating, scheduling, or other effort not reasonably foreseeable at 
the time of contract award;
    (2) Proposed costs are not included in a firm's time-related costs 
or overhead rate; and

[[Page 248]]

    (3) Proposed costs were incurred prior to a Contracting Officer's 
unilateral determination of an equitable adjustment under the conditions 
set forth in paragraph (o), or were incurred prior to the time the 
request for equitable adjustment otherwise became a matter in dispute.
    (l) Proposed direct costs, markups, and proposal preparation costs 
shall be allowable in the determination of an equitable adjustment only 
if they are reasonable and otherwise consistent with the contract cost 
principles and procedures set forth in part 31 of the Federal 
Acquisition Regulation (48 CFR part 31) in effect on the date of this 
contract. Characterization of costs as direct costs, time-related costs, 
or overhead costs must be consistent with the requesting firm's 
accounting practices on other work under this contract and other 
contracts.
    (m) If the Contracting Officer determines that it is in the 
Government's interest that the Contractor proceed with a change before 
negotiation of an equitable adjustment is completed, the Contracting 
Officer may order the Contractor to proceed on the basis of a unilateral 
modification to the contract increasing or decreasing the contract price 
by an amount to be determined later. Such increase or decrease shall not 
exceed the increase or decrease proposed by the Contractor.
    (n) If the parties cannot agree to an equitable adjustment, the 
Contracting Officer may determine the equitable adjustment unilaterally.
    (o) The Contractor shall not be entitled to any proposal preparation 
costs incurred subsequent to the date of a unilateral determination or 
denial of the request if the Contracting Officer issues a unilateral 
determination or denial under any of the following circumstances:
    (1) The Contractor fails to submit a proposal within the time 
required by this contract or such time as may reasonably be required by 
the Contracting Officer.
    (2) The Contractor fails to submit additional information requested 
by the Contracting Officer within the time reasonably required.
    (3) Agreement to an equitable adjustment cannot be reached within 60 
days of submission of the Contractor's proposal or receipt of additional 
requested information, despite the Contracting Officer's diligent 
efforts to negotiate the equitable adjustment.

                             (End of clause)

[74 FR 864, Jan. 9, 2009]



552.246-70  Source Inspection by Quality Approved Manufacturer.

    As prescribed in 546.302-70, insert the following clause:

       Source Inspection by Quality Approved Manufacturer (JUL 09)

    (a) Inspection system and inspection of facilities. (1) The 
inspection system maintained by the Contractor under the Inspection of 
Supplies--Fixed Price clause (FAR 52.246-2) of this contract shall be 
maintained throughout the contract period. Unless otherwise authorized 
in writing by the Contracting Officer, the Contractor shall comply with 
all requirements of editions in effect on the date of the solicitation 
of either Federal Standard 368 or the International Organization for 
Standardization (ISO) Standard 9001:2000 (Quality Management Systems--
Requirements). A documented description of the inspection system shall 
be made available to the Government before contract award. At the sole 
discretion of the Contracting Officer, he/she may authorize in writing 
exceptions to the quality assurance standards identified above. The 
Contractor shall immediately notify the Administrative Contracting 
Officer (ACO) of any changes made in the inspection system during the 
contract period. As used herein, the term ``inspection system'' means 
the Contractor's own facility or any other facility acceptable to the 
Government that will be used to perform inspections or tests of 
materials and components before incorporation into end articles and for 
inspection of such end articles before shipment. When the manufacturing 
plant is located outside of the United States, the Contractor shall 
arrange delivery of the items from a plant or warehouse located in the 
United States (including Puerto Rico and the U.S. Virgin Islands) 
equipped to perform all inspections and tests required by the contract 
or specifications to evidence conformance therewith, or shall arrange 
with a testing laboratory or other facility in the United States, 
acceptable to the Government, to perform the required inspections and 
tests.
    (2) In addition to the requirements in Federal Standard 368, ISO 
9001:2000 or as otherwise approved by the Government, records shall 
include the date inspection and testing were performed. These records 
shall be available for (i) 3 years after final payment; or (ii) 4 years 
from the end of the Contractor's fiscal year in which the record was 
created, whichever period expires first.
    (3) Offerors are required to specify, in the space provided 
elsewhere in this solicitation, the name and address of each 
manufacturing plant or other facility where supplies will be available 
for inspection, indicating the item number(s) to which each applies.
    (4) The Contractor shall provide the Administrative Contracting 
Officer ACO with the name(s) of the individual and an alternate 
responsible for the inspection system. In the event that the designated 
individual(s) becomes unavailable to oversee the inspection system, the 
Contractor, within 10

[[Page 249]]

calendar days of such event, shall provide the ACO with the names of the 
replacement individual(s).
    (b) Inspection by the Contractor. The Contractor is required to 
demonstrate that the supplies in the shipment have been subject to and 
have passed all inspections and tests required by the contract and meet 
the requirements of the contract.
    (c) Inspection by Government personnel. (1) Although the Government 
will normally rely upon the Contractor's representation as to the 
quality of supplies shipped, it reserves the right under the Inspection 
of Supplies--Fixed Price clause to inspect and test all supplies called 
for by this contract, before acceptance, at all times and places, 
including the point of manufacture. When the Government notifies the 
Contractor of its intent to inspect supplies before shipment, the 
Contractor shall notify or arrange for subcontractors to notify the 
designated GSA quality assurance office 7 workdays before the date when 
supplies will be ready for inspection. Shipment shall not be made until 
inspection by the Government is completed and shipment is authorized by 
the Government.
    (2) The offeror shall indicate, in the spaces provided below, the 
location(s) at which the supplies will be inspected or made available 
for inspection.

                                                INSPECTION POINT
 
                                                           NAME, ADDRESS (Including
        ITEM NO(S).              NAME OF MANUFACTURER            County), and              TELEPHONE NUMBER
 
________                     ________                     ________                    ________
________                     ________                     ________                    ________
________                     ________                     ________                    ________
 

    NOTE: If additional space is needed, the offeror may furnish the 
requested information by an attachment to the offer.

    (3) During the contract period, a Government representative may 
periodically select samples of supplies produced under this contract for 
Government verification, inspection, and testing. Samples selected for 
testing will be disposed of as follows: Samples from an accepted lot, 
not damaged in the testing process, will be returned promptly to the 
Contractor after completion of tests. Samples damaged in the testing 
process will be disposed of as requested by the Contractor. Samples from 
a rejected lot will be returned to the Contractor or disposed of in a 
time and manner agreeable to both the Contractor and the Government.
    (d) Quality deficiencies. (1) Notwithstanding any other clause of 
this contract concerning the conclusiveness of acceptance by the 
Government, any supplies or production lots shipped under this contract 
found to be defective in material or workmanship, or otherwise not in 
conformity with the requirements of this contract within a period of 
____*____ months after acceptance shall, at the Government's option, be 
replaced, repaired, or otherwise corrected by the Contractor at no cost 
to the Government within 30 calendar days (or such longer period as the 
Contracting Officer may authorize in writing) after receipt of notice to 
replace or correct. The Contractor shall remove, at its own expense, 
supplies rejected or required to be replaced, repaired, or corrected. 
When the nature of the defect affects an entire batch or lot of 
supplies, and the Contracting Officer determines that correction can 
best be accomplished by retaining the nonconforming supplies, and 
reducing the contract price by an equitable amount under the 
circumstances, then the equitable price adjustment shall apply to the 
entire batch or lot of supplies from which the nonconforming item was 
taken.
    (2) The Contractor may be issued a Quality Deficiency Notice (QDN) 
if:
    (i) Supplies in process, shipped, or awaiting shipment to fill 
Government orders are found not to comply with contract requirements, or 
(ii) deficiencies in either plant quality or process controls are found. 
Upon receipt of a QDN, the Contractor shall take immediate corrective 
action and shall suspend shipment of the supplies covered by the QDN 
until such time as corrective action has been completed. The Contractor 
shall notify the Government representative, within 5 workdays, of the 
action plan or the corrective action taken. The Government may elect to 
verify the corrective action at the Contractor location(s). Shipments of 
nonconforming supplies will be returned at the Contractor's expense and 
may constitute cause for termination of the contract. Delays due to the 
insurance of a QDN do not constitute excusable delay under the default 
clause of this contract. Failure to complete corrective action in a 
timely manner may result in termination of the contract.
    (3) This contract may be terminated for default if subsequent 
Government inspection discloses that plant quality or process controls 
are not being maintained, supplies that do not meet the requirements of 
the contract are being shipped, or if the contractor fails to comply 
with any other requirement of this clause.

[[Page 250]]

    (e) Additional cost for inspection and testing. The Contractor shall 
be charged for any additional cost of inspection/testing or 
reinspecting/retesting supplies for the reasons stated in paragraph (e) 
of FAR 52.246-2, Inspection of Supplies--Fixed Price. When inspection or 
testing is performed by or under the direction of GSA, charges will be 
at the rate of $____**____ per man-hour or fraction thereof if the 
inspection is at a GSA distribution center; $____**____ per man-hour or 
fraction thereof, plus travel costs incurred, if the inspection is at 
any other location; and $____**____ per man-hour or fraction thereof for 
laboratory testing, except that when a testing facility other than a GSA 
laboratory performs all or part of the required tests, the Contractor 
shall be assessed the actual cost incurred by the Government as a result 
of testing at such facility. When inspection is performed by or under 
the direction of any agency other than GSA, the charges indicated above 
may be used, or the agency may assess the actual cost of performing the 
inspection and testing.
    (f) Responsibility for rejected supplies. When the Contractor fails 
to remove or provide instructions for the removal of rejected supplies 
under paragraph (d) of this clause, pursuant to the Contracting 
Officer's instructions, the Contractor shall be liable for all costs 
incurred by the Government in taking such measures as are expedient to 
avoid unnecessary loss to the Contractor. In addition to the remedies 
provided in FAR 52.246-2, supplies may be--
    (1) Stored and charged against the Contractor's account;
    (2) Reshipped to the Contractor at its expense (any additional 
expense incurred by the Government or the freight carrier caused by the 
refusal of the Contractor to accept their return shall also be charged 
against the Contractor's account);
    (3) Sold to the highest bidder on the open market and the proceeds 
applied against the accumulated storage and other costs, including the 
cost of the sale; or
    (4) Otherwise disposed of by the Government.
    (g) Subcontracting requirements. The Contractor shall insert in any 
subcontracts the inspection or testing provisions set forth in 
paragraphs (a) through (d) of this clause and the Inspection of 
Supplies--Fixed Price clause of this contract. The Contractor shall be 
responsible for compliance by any subcontractor with the provisions set 
forth in paragraphs (a) through (d) of this clause and the Inspection of 
Supplies--Fixed Price clause.

                             (End of clause)

    *Normally insert 12 months as the period during which defective or 
otherwise nonconforming supplies must be replaced. However, when the 
supplies being bought have a shelf life of less than 1 year, you should 
use the shelf-life period, or in the instance where you reasonably 
expect a longer period to be available, you should use the longer 
period.
    **The rates to be inserted are established by the Commissioner of 
the Federal Acquisition Service or a designee.

[74 FR 26108, June 1, 2009]



552.246-71  Source Inspection by Government.

    As prescribed in 546.302-71, insert the following clause:

             Source Inspection by Government (JUNE 1, 2009)

    (a) Inspection by Government personnel. (1) Supplies to be furnished 
under this contract will be inspected at source by the Government before 
shipment from the manufacturing plant or other facility designated by 
the Contractor, unless the Contractor is otherwise notified in writing 
by the Contracting Officer or a designated representative. 
Notwithstanding the foregoing, the Government may perform any or all 
tests contained in the contract specifications at a Government facility 
without prior written notice by the Contracting Officer before release 
of the supplies for shipment. Samples sent to a Government resting 
facility will be disposed of as follows: Samples from an accepted lot, 
not damaged in the testing process, will be returned promptly to the 
Contractor after completion of tests. Samples damaged in the testing 
process will be disposed of as requested by the Contractor. Samples from 
a rejected lot will be returned to the Contractor or disposed of in a 
time and manner agreeable to both the Contractor and the Government.
    (2) Government inspection responsibility will be assigned to the GSA 
quality assurance office which has jurisdiction over the State in which 
the Contractor's subcontractor's plant or other designated point for 
inspection is located. The Contractor shall notify or arrange for 
subcontractors to notify the designated GSA quality assurance office 7 
workdays before the date when supplies will be ready for inspection. 
Shipment shall not be made until after inspection by the Government is 
completed and shipment is authorized by Government.
    (b) Inspection and receiving reports. For each shipment, the 
Contractor shall be responsible for preparation and distribution of 
inspection documents as follows: (1) DD Form 250, Material Inspection 
and Receiving Report, or computer formatted equivalent for deliveries to 
military agencies; or (2) GSA Form 308, Notice of Inspection for 
deliveries to GSA or other civilian agencies. When required, the 
Contractor will be furnished a

[[Page 251]]

supply of GSA Form 308 and/or DD Form 250, and complete instructions for 
their reparation and distribution.
    (c) Inspection facilities. (1) The inspection system required to be 
maintained by the Contractor in accordance with FAR 52.246-2, Inspection 
of Supplies--Fixed Price, may be the Contractor's own facilities or any 
other facilities acceptable to the Government. The facilities shall be 
utilized to perform all inspections and tests of materials and 
components before incorporation into end articles, and for the 
inspection of such end articles before shipment. The Government reserves 
the right to evaluate the acceptability and effectiveness of the 
Contractor's inspection system before award and periodically during the 
contract period.
    (2) Offerors are required to specify, in the spaces provided 
elsewhere in the solicitation, the name and address of each 
manufacturing plant or other facility where supplies will be available 
for inspection, indicating the item number(s) to which each applies.
    (3) The Contractor shall deliver the items specified in this 
contract from a plant or warehouse located within the United States 
(including Puerto Rico and the U.S. Virgin Islands) that is equipped to 
perform all inspections and tests required by this contract or 
specifications to evidence conformance therewith, or shall arrange with 
a testing laboratory or other facility in the United States, acceptable 
to the Government, to perform the required inspections and tests.
    (d) Availability of records. (1) In addition to any other 
requirement of this contract, the Contractor shall maintain records 
showing the following information for each order received under the 
contract: (i) order number; (ii) date order received by the Contractor; 
(iii) quantity ordered; (iv) date scheduled into production; (v) batch 
or lot number, if applicable; (vi) date inspected and/or tested; (vii) 
date available for shipment; (viii) date shipped or date service 
completed; and (ix) National Stock Number (NSN), or if none is provided 
in the contract, the applicable item number or other contractual 
identification.
    (2) These records should be maintained at the point of source 
inspection and shall be available to the Contracting Officer, or an 
authorized representative, for (i) 3 years after final payment; or (ii) 
4 years from the end of the Contractor's fiscal year in which the record 
was created, whichever period expires first.
    (e) Additional cost for inspection and testing. The Contractor will 
be charged for any additional cost for inspecting/testing or 
reinspection/retesting supplies for the reasons stated in paragraph (e) 
of FAR 52.246-2, Inspection of Supplies--Fixed Price. When inspection or 
testing is performed by or under the direction of GSA, charges will be 
at the rate of $____*____ per man-hour or fraction thereof if the 
inspection is at a GSA distribution center; $____*____ per man-hour or 
fraction thereof, plus travel costs incurred, if the inspection is at 
any other location; and $____*____ per man-hour or fraction thereof for 
laboratory testing, except that when a testing facility other than a GSA 
laboratory performs all or part of the required tests, the Contractor 
shall be assessed the actual cost incurred by the Government as a result 
of testing at such facility. When inspection is performed by or under 
the direction of any agency other than GSA, the charges indicated above 
may be used, or the agency may assess the actual cost of performing the 
inspection and testing.
    (f) Responsibility for rejected supplies. When the Contractor fails 
to remove or provide instructions for the removal of rejected supplies 
under FAR 52.246-2(h) pursuant to the Contracting Officer's 
instructions, the Contractor shall be liable for all costs incurred by 
the Government in taking such measures as are expedient to avoid 
unnecessary loss to the Contractor. In addition to the remedies provided 
in FAR 52.246-2, supplies may be--
    (1) Stored for the Contractor's account;
    (2) Reshipped to the Contractor at its expense (any additional 
expense incurred by the Government or the freight carrier caused by the 
refusal of the Contractor to accept their return also shall be for the 
Contractor's account); or
    (3) Sold to the highest bidder on the open market and the proceeds 
applied against the accumulated storage and other costs, including the 
cost of the sale.

                             (End of clause)

    * The rates to be inserted are established by the Commissioner of 
the Federal Acquisition Service or a designee.

[64 FR 37229, July 9, 1999, as amended at 74 FR 26110, June 1, 2009]



552.246-72  Final Inspection and Tests.

    As prescribed in 546.312, insert the following clause:

                  Final Inspection and Tests (SEP 1999)

    The Contractor shall give written notice to the Contracting Officer 
at least 10 calendar days before the date the work will be completed and 
ready for final inspection and tests. Final inspection and tests will 
begin within 10 calendar days after the date specified in the 
Contractor's notice unless the Contracting Officer determines that the 
work is not ready for final inspection and so informs the Contractor.

[[Page 252]]

                             (End of clause)



552.246-77  Additional Contract Warranty Provisions for Supplies of a 
Noncomplex Nature.

    As prescribed in 546.710(a), insert the following clause in 
solicitations and contracts that include FAR 52.246-17, Warranty of 
Supplies of a Noncomplex Nature.

  Additional Contract Warranty Provisions for Supplies of a Noncomplex 
                             Nature (JUL 09)

    (a) Definitions. Correction, as used in this clause, means the 
elimination of a defect.
    (b) Contractor's obligations. When return, correction, or 
replacement is required, the Contractor shall be responsible for all 
costs attendant to the return, correction, or replacement of the 
nonconforming supplies. Any removal in connection with the above shall 
be done by the Contractor at its expense.
    (c) Remedies available to the Government. When the nature of the 
defect in the nonconforming item is such that the defect affects an 
entire batch or lot of material, then the equitable price adjustment 
shall apply to the entire batch or lot of material from which the 
nonconforming item was taken.

                             (End of clause)

[74 FR 26110, June 1, 2009]



552.246-78  Inspection at Destination.

    As prescribed in 546.302-72 insert the following clause:

                   Inspection at Destination (JUL 09)

    Inspection of all purchases under this contract will be made at 
destination by an authorized Government representative.

                             (End of clause)

[74 FR 26110, June 1, 2009]



552.252-5  Authorized Deviations in Provisions.

    As prescribed in 552.107-70(a), insert the following provision:

 Authorized Deviations in Provisions (Deviation FAR 52.252-5) (SEP 1999)

    (a) Deviations to FAR provisions. (1) This solicitation indicates 
any authorized deviation to a Federal Acquisition Regulation (48 CFR 
chapter 1) provision by the addition of ``(DEVIATION)'' after the date 
of the provision, if the provision is not published in the General 
Services Administration Acquisition Regulation (48 CFR chapter 5).
    (2) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (FAR) provision that is published in the 
General Services Administration Acquisition Regulation by the addition 
of ``(DEVIATION (FAR provision no.))'' after the date of the provision.
    (b) Deviations to GSAR provisions. This solicitation indicates any 
authorized deviation to a General Services Administration Acquisition 
Regulation provision by the addition of ``(DEVIATION)'' after the date 
of the provision.
    (c) ``Substantially the same as'' provisions. Changes in wording of 
provisions prescribed for use on a ``substantially the same as'' basis 
are not considered deviations.

                           (End of provision)



552.252-6  Authorized Deviations in Clauses.

    As prescribed in 552.107-70(b), insert the following clause:

  Authorized Deviations in Clauses (Deviation FAR 52.252-6) (SEP 1999)

    (a) Deviations to FAR clauses. (1) This solicitation or contract 
indicates any authorized deviation to a Federal Acquisition Regulation 
(48 CFR chapter 1) clause by the addition of ``(DEVIATION)'' after the 
date of the clause, if the clause is not published in the General 
Services Administration Acquisition Regulation (48 CFR chapter 5).
    (2) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (FAR) clause that is published in the 
General Services Administration Acquisition Regulation by the addition 
of ``(DEVIATION (FAR clause no.))'' after the date of the clause.
    (b) Deviations to GSAR clauses: This solicitation indicates any 
authorized deviation to a General Services Administration Acquisition 
Regulation clause by the addition of ``(DEVIATION)'' after the date of 
the clause.
    (c) ``Substantially the same as'' clauses. Changes in wording of 
clauses prescribed for use on a ``substantially the same as'' basis are 
not considered deviations.

                             (End of clause)



552.270-1  Instructions to Offerors--Acquisition of Leasehold Interests
in Real Property.

    As prescribed in 570.702, insert the following provision:

[[Page 253]]

  Instructions to Offerors--Acquisition of Leasehold Interests in Real 
                           Property (JUN 2011)

    (a) Definitions. As used in this provision--
    ``Discussions'' are negotiations that occur after establishment of 
the competitive range that may, at the contracting Officer's discretion, 
result in the offeror being allowed to revise its proposal.
    ``In writing, writing or written'' means any worded or numbered 
expression that can be read, reproduced, and later communicated, and 
includes electronically transmitted and stored information.
    ``Proposal modification'' is a change made to a proposal before the 
solicitation's closing date and time, or made in response to an 
amendment, or made to correct a mistake at any time before award.
    ``Proposal revision'' is a change to a proposal made after the 
solicitation closing date, at the request of as allowed by a Contracting 
Officer as the result or of negotiations.
    ``Time,'' if stated as a number of days, is calculated using 
calendar days, unless otherwise specified, and will include Saturdays, 
Sundays, and legal holidays. However, if the last day falls on a 
Saturday, Sunday, or legal holiday, then the period shall include the 
next working day.
    (b) Amendments to solicitations. If this solicitation is amended, 
all terms and conditions that are not amended remain unchanged. Offerors 
shall acknowledge receipt of any amendment to this solicitation by the 
date and time specified in the amendment(s).
    (c) Submission, modification, revision, and withdrawal of proposals. 
(1) Unless other methods (e.g., electronic commerce or facsimile) are 
permitted in the solicitation, proposals and modifications to proposals 
shall be submitted in paper media in sealed envelopes or packages. 
Offers must be:
    (i) Submitted on the forms prescribed and furnished by the 
Government as a part of this solicitation or on copies of those forms, 
and
    (ii) Signed. The person signing an offer must initial each erasure 
or change appearing on any offer form. If the offeror is a partnership, 
the names of the partners composing the firm must be included with the 
offer.
    (2) Late proposals and revisions. (i) The Government will not 
consider any proposal received at the office designated in the 
solicitation after the exact time specified for receipt of offers unless 
it is received before the Government makes award and it meets at least 
one of the following conditions:
    (A) It was sent by registered or certified mail not later than the 
fifth calendar day before the date specified for receipt of offers 
(e.g., an offer submitted in response to solicitation requiring receipt 
of offers by the 20th of the month must have been mailed by the 15th).
    (B) It was sent by mail (or telegram or facsimile, if authorized) or 
hand-carried (including delivery by a commercial carrier) if it is 
determined by the Government that the late receipt was due primarily to 
Government mishandling after receipt at the Government installation.
    (C) It was sent by U.S. Postal Service Express Mail Next Day 
Service-Post Office to Addressee, not later than 5:00 p.m. at the place 
of mailing two working days prior to the date specified for receipt of 
proposals. The term ``working days'' excludes weekends and U.S. Federal 
holidays.
    (D) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point of 
entry of the Government infrastructure not later than 5:00 p.m. one 
working day prior to the date specified for receipt of proposals.
    (E) There is acceptable evidence to establish that it was received 
at the activity designated for receipt of offers and was under the 
Government's control prior to the time set for receipt of offers, and 
that the Contracting Officer determines that accepting the late offer 
would not unduly delay the procurement.
    (F) It is the only proposal received.
    (ii) Any modification or revision of a proposal or response to 
request for information, including any final proposal revision, is 
subject to the same conditions as in subparagraphs (c)(2)(i)(A) through 
(c)(2)(i)(E) of this provision.
    (iii) The only acceptable evidence to establish the date of mailing 
of a late proposal or modification or revision sent either by registered 
or certified mail is the U.S. or Canadian Postal Service postmark both 
on the envelope or wrapper and on the original receipt from the U.S. or 
Canadian Postal Service. Both postmarks must show a legible date or the 
proposal, response to a request for information, or modification or 
revision shall be processed as if mailed late. ``Postmark'' means a 
printed, stamped, or otherwise placed impression (exclusive of a postage 
meter machine impression) that is readily identifiable without further 
action as having been supplied and affixed by employees of the U.S. or 
Canadian Postal Service on the date of mailing. Therefore, offerors or 
respondents should request the postal clerk to place a legible hand 
cancellation bull's eye postmark on both the receipt and the envelope or 
wrapper.
    (iv) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or statements 
of Government personnel.

[[Page 254]]

    (v) The only acceptable evidence to establish the date of mailing of 
a late offer, modification or revision, or withdrawal sent by Express 
Mail Next Day Service-Post Office to Addressee is the date entered by 
the post office receiving clerk on the ``Express Mail Next Day Service-
Post Office to Addressee'' label and the postmark on both the envelope 
or wrapper and on the original receipt from the U.S. Postal Service, 
``Postmark'' has the same meaning as defined in paragraph (c)(2)(iii) of 
this provision, excluding postmarks of the Canadian Postal Service. 
Therefore, offerors or respondents should request the postal clerk to 
place a legible hand cancellation bull's eye postmark on both the 
receipt and the envelope or wrapper.
    (vi) Notwithstanding paragraph (c)(2)(i) of this provision, a late 
modification or revision of an otherwise successful proposal that makes 
its terms more favorable to the Government will be considered at any 
time it is received and may be accepted.
    (vii) An offeror may withdraw its proposal by written notice or 
telegram (including mailgram) received at any time before award. If the 
solicitation authorizes facsimile proposals, an offeror may withdraw its 
proposal via facsimile received at any time before award, subject to the 
conditions specified in the provision entitled ``Facsimile Proposals.'' 
Proposals may be withdrawn in person by an offeror or an authorized 
representative, if the representative's identity is made known and the 
representative signs a receipt for the proposal before award.
    (viii) If an emergency or unanticipated event interrupts normal 
Government processes so that proposals cannot be received at the office 
designated for receipt of proposals by the exact time specified in the 
solicitation, and urgent Government requirements preclude amendment of 
the solicitation or other notice of an extension of the closing date, 
the time specified for receipt of proposals will be deemed to be 
extended to the same time of day specified in the solicitation on the 
first work day on which normal Government processes resume. If no time 
is specified in the solicitation, the time for receipt is 4:30 p.m., 
local time, for the designated Government office.
    (3) Any information given to a prospective offeror concerning this 
solicitation will be furnished promptly to all other prospective 
offerors, if that information is necessary in submitting offers or if 
the lack of it would be prejudicial to any other prospective offeror.
    (4) Offerors may submit modifications to their proposals at any time 
before the solicitation closing date and time, and may submit 
modifications in response to an amendment, or to correct a mistake at 
any time before award.
    (5) Offerors may submit revised proposals only if requested or 
allowed by the Contracting Officer.
    (6) The Government will construe an offer to be in full and complete 
with this solicitation unless the offer describes any deviation in the 
offer.
    (7) Offerors may submit proposals that depart from stated 
requirements. Such a proposal shall clearly identify why the acceptance 
of the proposal would be advantageous to the Government. The proposal 
must clearly identify and explicitly define any deviations from the 
terms and conditions of the solicitation, as well as the comparative 
advantage to the Government. The Government reserves the right to amend 
the solicitation to allow all offerors an opportunity to submit revised 
proposals based on the revised requirements.
    (d) Restriction on disclosure and use of data. An offeror that 
includes in its proposal data that it does not want disclosed to the 
public for any purpose, or use by the Government except for evaluation 
purposes, must meet both of the following conditions:
    (1) Mark the title page with the following legend:
    This proposal includes data that shall not be disclosed outside the 
Government and shall not be duplicated, used, or disclosed--in whole or 
in part--for any purpose other than to evaluate this proposal. If, 
however, a lease is awarded to this offeror as a result of--or in 
connection with--the submission of this data, the Government shall have 
the right to duplicate, use, or disclose the data to the extent provided 
in the resulting contract. This restriction does not limit the 
Government's right to use information contained in this data if it is 
obtained from another source without restriction. The data subject to 
this restriction are contained in sheets [insert numbers or other 
identification of sheets].
    (2) Mark each sheet of data it wishes to restrict with the following 
legend:
    Use or disclosure of data contained on this sheet is subject to the 
restriction on the title page of this proposal.
    (e) Lease award. (1) The Government intends to award a lease 
resulting from this solicitation to the responsible offeror whose 
proposal represents the best value after evaluation in accordance with 
the factors and subfactors in the solicitation.
    (2) The Government may reject any or all proposals if such action is 
in the Government's interest.
    (3) The Government may waive informalities and minor irregularities 
in proposals received.
    (4) The Government intends to evaluate proposals and award a lease 
after conducting discussions with offerors whose proposals have been 
determined to be within the competitive range. If the Contracting 
Officer determines that the number of proposals that

[[Page 255]]

would otherwise be in the competitive range exceeds the number at which 
an efficient competition can be conducted, the Contracting Officer may 
limit the number of proposals in the competitive range to the greatest 
number that will permit an efficient competition among the most highly 
rated proposals. Therefore, the offeror's initial proposal should 
contain the offeror's best terms from a price and technical standpoint.
    (5) Exchanges with offerors after receipt of a proposal do not 
constitute a rejection or counteroffer by the Government.
    (6) The Government may determine that a proposal is unacceptable if 
the price proposed are materially unbalanced between line terms or 
subline items. Unbalanced pricing exists when, despite an acceptable 
total evaluated price, the price of one or more contract line items is 
significantly overstated or understand as indicated by the application 
of cost or price analysis techniques. A proposal may be rejected if the 
Contracting Officer determines that the lack of balance poses an 
unacceptable risk to the Government.
    (7) The execution and delivery of the Lease contract by the 
Government establishes a valid award and contract.
    (8) The Government may disclose the following information in 
postaward debriefings to other offerors:
    (i) The overall evaluated cost or price and technical rating of the 
successful offeror;
    (ii) The overall making of all offerors, when any making was 
developed by the agency during source selection; and
    (iii) A summary of the rationale for award.
    (f) Paperwork collection. The information collection requirements 
contained in this solicitation/contract are either required by 
regulation or approved by the Office of Management and Budget pursuant 
to the Paperwork Reduction Act and assigned OMB Control No. 3090-0163.

                           (End of provision)

    Alternate I (MAR 1998). As prescribed in 570.702, substitute the 
following paragraph for paragraph (c)(2)(i) of the basic provision:

    (i) Any offer received at the office designated in the solicitation 
after the exact time specified for receipt of final proposal revisions 
will not be considered unless it is received before award is made and it 
meets one of the following conditions--

    Alternate II (MAR 1998). As prescribed in 570.702, substitute the 
following paragraph for paragraph (e)(4) of the basic provision:

    (4) The Government intends to evaluate proposals and award a lease 
without discussions with offerors (except clarifications as described in 
FAR 15.306(a)). Therefore, the offeror's initial proposal should contain 
the offeror's best terms from a cost or price and technical standpoint. 
The Government reserves the right to conduct discussions if the 
Contracting Officer later determines them to be necessary. If the 
Contracting Officer determines that the number of proposals that would 
otherwise be in the competitive range exceeds the number at which an 
efficient competition can be conducted, the Contracting Officer may 
limit the number of proposals in the competitive range to the greatest 
number that will permit an efficient competition among the most highly 
rated proposals.

[64 FR 37229, July 9, 1999, as amended at 76 FR 30845, May 27, 2011]



552.270-2  Historic Preference.

    As prescribed in 570.702, insert the following provision:

                     Historic Preference (SEP 2004)

    (a) The Government will give preference to offers of space in 
historic properties following this hierarchy of consideration:
    (1) Historic properties within historic districts.
    (2) Non-historic developed and non-historic undeveloped sites within 
historic districts.
    (3) Historic properties outside of historic districts.
    (b) Definitions. (1) Determination of eligibility means a decision 
by the Department of the Interior that a district, site, building, 
structure or object meets the National Register criteria for evaluation 
although the property is not formally listed in the National Register 
(36 CFR 60.3(c)).
    (2) Historic district means a geographically definable area, urban 
or rural, possessing a significant concentration, linkage, or continuity 
of sites, buildings, structures, or objects united by past events or 
aesthetically by plan or physical development. A district may also 
comprise individual elements separated geographically but linked by 
association or history (36 CFR 60.3(d)). The historic district must be 
included in or be determined eligible for inclusion in the National 
Register of Historic Places.
    (3) Historic property means any pre-historic or historic district, 
site, building, structure, or object included in or been determined 
eligible for inclusion in the National Register of Historic Places 
maintained by the Secretary of the Interior (36 CFR 800.16(l)).
    (4) National Register of Historic Places means the National Register 
of districts, sites, buildings, structures and objects significant

[[Page 256]]

in American history, architecture, archeology, engineering and culture 
that the Secretary of the Interior is authorized to expand and maintain 
under the National Historic Preservation Act (36 CFR 60.1).
    (c) The offer of space must meet the terms and conditions of this 
solicitation. The Contracting Officer has discretion to accept 
alternatives to certain architectural characteristics and safety 
features defined elsewhere in this solicitation to maintain the 
historical integrity of an historic building, such as high ceilings and 
wooden floors, or to maintain the integrity of an historic district, 
such as setbacks, floor-to-ceiling heights, and location and appearance 
of parking.
    (d) When award will be based on the lowest price technically 
acceptable source selection process, the Government will give a price 
evaluation preference, based on the total annual square foot (ANSI/BOMA 
Office Area) cost to the Government, to historic properties as follows:
    (1) First to suitable historic properties within historic districts, 
a 10 percent price preference.
    (2) If no suitable historic property within an historic district is 
offered, or the 10 percent preference does not result in such property 
being the lowest price technically acceptable offer, the Government will 
give a 2.5 percent price preference to suitable non-historic developed 
or undeveloped sites within historic districts.
    (3) If no suitable non-historic developed or undeveloped site within 
an historic district is offered, or the 2.5 percent preference does not 
result in such property being the lowest price technically acceptable 
offer, the Government will give a 10 percent price preference to 
suitable historic properties outside of historic districts.
    (4) Finally, if no suitable historic property outside of historic 
districts is offered, no historic price preference will be given to any 
property offered.
    (e) When award will be based on the best value tradeoff source 
selection process, which permits tradeoffs among price and non-price 
factors, the Government will give a price evaluation preference, based 
on the total annual square foot (ANSI/BOMA Office Area) cost to the 
Government, to historic properties as follows:
    (1) First to suitable historic properties within historic districts, 
a 10 percent price preference.
    (2) If no suitable historic property within a historic district is 
offered or remains in the competition, the Government will give a 2.5 
percent price preference to suitable non-historic developed or 
undeveloped sites within historic districts.
    (3) If no suitable non-historic developed or undeveloped site within 
an historic district is offered or remains in the competition, the 
Government will give a 10 percent price preference to suitable historic 
properties outside of historic districts.
    (4) Finally, if no suitable historic property outside of historic 
districts is offered, no historic price preference will be given to any 
property offered.
    (f) The Government will compute price evaluation preferences by 
reducing the price(s) of the offerors qualifying for a price evaluation 
preference by the applicable percentage provided in this provision. The 
price evaluation preference will be used for price evaluation purposes 
only. The Government will award a contract in the amount of the actual 
price(s) proposed by the successful offeror and accepted by the 
Government.
    (g) To qualify for a price evaluation preference, offerors must 
provide satisfactory documentation in their offer that their property 
qualifies as one of the following:
    (1) An historic property within an historic district.
    (2) A non-historic developed or undeveloped site within an historic 
district.
    (3) An historic property outside of an historic district.

                           (End of provision)

[69 FR 55938, Sept. 16, 2004, as amended at 76 FR 30845, May 27, 2011]



552.270-3  Parties To Execute Lease.

    As prescribed in 570.702, insert the following provision:

                   Parties To Execute Lease (JUN 2011)

    (a) If the lessor is an individual, that individual shall sign the 
lease. A lease 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) If the Lessor is a partnership, the lease must be signed in the 
partnership name, followed by the name of the legally authorized partner 
signing the same, and a copy of either the partnership agreement or 
current Certificate of Limited Partnership shall accompany the lease.
    (c) If the Lessor is a corporation, the lease must be signed in the 
corporate name, followed by the signature and title of the officer or 
other person signing the lease on its behalf, duly attested, and, if 
requested by the Government, evidence of this authority to so act shall 
be furnished.
    (d) If the Lessor is a joint venture, the lease must be signed by 
each participant in the joint venture in the manner prescribed in 
paragraphs (a) through (c) of this provision for each type of 
participant. When a corporation is participating in the joint venture, 
the

[[Page 257]]

corporation shall provide evidence that the corporation is authorized to 
participate in the joint venture.
    (e) If the lease is executed by an attorney, agent, or trustee on 
behalf of the Lessor, an authenticated copy of the power of attorney, or 
other evidence to act on behalf of the Lessor, must accompany the lease.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30845, May 27, 2011]



552.270-4  Definitions.

    As prescribed in 570.703, insert the following clause:

                         Definitions (SEP 1999)

    The following terms and phrases (except as otherwise expressly 
provided or unless the context otherwise requires) for all purposes of 
this lease shall have the respective meanings hereinafter specified:
    (a) ANSI/BOMA Office Area (ABOA) means the area ``where a tenant 
normally houses personnel, and/or furniture, for which a measurement is 
to be computed,'' as stated by the American National Standards 
Institute/Building Owners and Managers Association (ANSI/BOMA) 
publication, Z65.1-1996.
    (b) ``Commencement Date'' means the first day of the term.
    (c) ``Contract'' and ``Contractor'' means ``Lease'' and ``Lessor,'' 
respectively.
    (d) ``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.
    (e) ``Delivery Date'' means the date specified in or determined 
pursuant to the provisions of this lease for delivery of the premises to 
the Government, improved in accordance with the provisions of this lease 
and substantially complete, as such date may be modified in accordance 
with the provisions of this lease.
    (f) ``Delivery Time'' means the number of days provided by this 
lease for delivery of the premises to the Government, as such number may 
be modified in accordance with the provision so this lease.''
    (g) ``Excusable Delays'' means delays arising without the fault or 
negligence of Lessor and Lessor's subcontractors and suppliers at any 
tier, and shall include, without limitation:
    (1) acts of God or of the public enemy,
    (2) acts of the United States of America in either its sovereign or 
contractual capacity,
    (3) acts of another contractor in the performance of a contract with 
the Government,
    (4) fires,
    (5) floods,
    (6) epidemics,
    (7) quarantine restrictions,
    (8) strikes,
    (9) freight embargoes,
    (10) unusually severe weather, or
    (11) delays of subcontractors or suppliers at any tier arising from 
unforeseeable causes beyond the control and without the fault or 
negligence of both the Lessor and any such subcontractor or supplier.
    (h) ``Lessor'' means the sub-lessor if this lease is a sublease.
    (i) ``Lessor shall provide'' means the Lessor shall furnish and 
install at Lessor's expense.
    (j) ``Notice'' means written notice sent by certified or registered 
mail, Express Mail or Comparable service, or delivered by hand. Notice 
shall be effective on the date delivery is accepted or refused.
    (k) ``Premises'' means the space described in this lease.
    (l) ``Substantially complete'' and ``substantial completion'' means 
that the work, the common and other areas of the building, and all other 
things necessary for the Government's access to the premises and 
occupancy, possession, use and enjoyment thereof, as provided in this 
lease, have been completed or obtained, excepting only such minor 
matters as do not interfere with or materially diminish such access, 
occupancy, possession, use of enjoyment.
    (m) ``Work'' means all alterations, improvements, modifications, and 
other things required for the preparation or continued occupancy of the 
premises by the Government as specified in this lease.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-5  Subletting and Assignment.

    As prescribed in 570.703, insert the following clause:

                  Subletting and Assignment (SEP 1999)

    The Government may sublet any part of the premises but shall not be 
relieved from any obligations under this lease by reason of any such 
subletting. The Government may at any time assign this lease, and be 
relieved from all obligations to Lessor under this lease excepting only 
unpaid rent and other liabilities, if any that have accrued to the date 
of said assignment. Any assignment shall be subject to prior written 
consent of Lessor, which shall not be unreasonably withheld.

[[Page 258]]

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-6  Maintenance of Building and Premises--Right of Entry.

    As prescribed in 570.703, insert the following clause:

     Maintenance of Building and Premises--Right of Entry (SEP 1999)

    Except in case of damage arising out of the willful act or 
negligence of a Government employee, Lessor shall maintain the premises, 
including the building and all equipment, fixtures, and appurtenances 
furnished by the lessor under this lease, in good repair and condition 
so that they are suitable in appearance and capable of supplying such 
heat, air conditioning, light, ventilation, access and other things to 
the premises, without reasonably preventable or recurring disruption, as 
is required for the Government's access to, occupancy, possession, use 
and enjoyment of the premises as provided in this lease. For the purpose 
of so maintaining the premises, the Lessor may at reasonable times enter 
the premises with the approval of the authorized Government 
representative in charge.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-7  Fire and Casualty Damage.

    As prescribed in 570.703, insert the following clause:

                   Fire and Casualty Damage (JUN 2011)

    If the entire premises are destroyed by fire or other casualty, this 
lease will immediately terminate. In case of partial destruction or 
damage, so as to render the premises untenantable, as determined by the 
Government, the Government may terminate the lease by giving written 
notice to the Lessor within 15 calendar days after such determination; 
if so terminated, no rent will accrue to the Lessor after such partial 
destruction or damage; and if not so terminated, the rent will be 
reduced proportionately by supplemental agreement hereto effective from 
the date of such partial destruction or damage. Nothing in this lease 
shall be construed as relieving Lessor from liability for damage to or 
destruction of property of the United States of America caused by the 
willful or negligent act or omission of Lessor.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-8  Compliance with Applicable Law.

    As prescribed in 570.703, insert the following clause:

                Compliance With Applicable Law (SEP 1999)

    Lessor shall comply with all Federal, state and local laws 
applicable to the Lessor as owner or lessor, or both, of the building or 
premises, including, without limitation, laws applicable to the 
construction, ownership, alteration or operation of both or either 
thereof, and will obtain all necessary permits, licenses and similar 
items at Lessor's expense. The Government will comply with all Federal, 
state and local laws applicable to and enforceable against it as a 
tenant under this lease; provided that nothing in this lease shall be 
construed as a waiver of any sovereign immunity of the Government. This 
lease shall be governed by Federal law.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-9  Inspection--Right of Entry.

    As prescribed in 570.703, insert the following clause:

                  Inspection--Right of Entry (SEP 1999)

    (a) At any time and from time to time after receipt of an offer 
(until the same has been duly withdrawn or rejected), after acceptance 
thereof and during the term, the agents, employees and contractors of 
the Government may, upon reasonable prior notice to Offeror or Lessor, 
enter upon the offered premises or the premises, and all other areas of 
the building access to which is necessary to accomplish the purposes of 
entry, to determine the potential or actual compliance by the Offeror or 
Lessor with the requirements of the solicitation or this lease, which 
purposes shall include, but not be limited to:
    (1) Inspecting, sampling and analyzing suspected asbestos-containing 
materials and air monitoring for asbestos fibers;
    (2) Inspecting the heating, ventilation and air conditioning system, 
maintenance records, and mechanical rooms for the offered premises or 
the premises;
    (3) Inspecting for any leaks, spills, or other potentially hazardous 
conditions which may involve tenant exposure to hazardous or toxic 
substances; and

[[Page 259]]

    (4) Inspecting for any current or past hazardous waste operations, 
to ensure that appropriate mitigative actions were taken to alleviate 
any environmentally unsound activities in accordance with Federal, State 
and local law.
    (b) Nothing in this clause shall be construed to create a Government 
duty to inspect for toxic materials or to impose a higher standard of 
care on the Government than on other lessees. The purpose of this clause 
is to promote the ease with which the Government may inspect the 
building. Nothing in this clause shall act to relieve the Lessor of any 
duty to inspect or liability which might arise as a result of Lessor's 
failure to inspect for or correct a hazardous condition.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-10  Failure in Performance.

    As prescribed in 570.703, insert the following clause:

                    Failure in Performance (SEP 1999)

    The covenant to pay rent and the covenant to provide any service, 
utility, maintenance, or repair required under this lease are 
interdependent. In the event of any failure by the Lessor to provide any 
service, utility, maintenance, repair or replacement required under this 
lease the Government may, by contract or otherwise, perform the 
requirement and deduct from any payment or payments under this lease, 
then or thereafter due, the resulting cost to the Government, including 
all administrative costs. If the Government elects to perform any such 
requirement, the Government and each of its contractors shall be 
entitled to access to any and all areas of the building, access to which 
is necessary to perform any such requirement, and the Lessor shall 
afford and facilitate such access. Alternatively, the Government may 
deduct from any payment under this lease, then or thereafter due, an 
amount which reflects the reduced value of the contract requirement not 
performed. No deduction from rent pursuant to this clause shall 
constitute a default by the Government under this lease. These remedies 
are not exclusive and are in addition to any other remedies which may be 
available under this lease or at law.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-11  Successors Bound.

    As prescribed in 570.703, insert the following clause:

                       Successors Bound (SEP 1999)

    This lease shall bind, and inure to the benefit of, the parties and 
their respective heirs, executors, administrators, successors and 
assigns.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-12  Alterations.

    As prescribed in 570.703, insert the following clause:

                         Alterations (SEP 1999)

    The Government shall have the right during the existence of this 
lease to make alterations, attach fixtures, and erect structures or 
signs in or upon the premises hereby leased, which fixtures, additions 
or structures so placed in, on, upon, or attached to the said premises 
shall be and remain the property of the Government and may be removed or 
otherwise disposed of by the Government. If the lease contemplates that 
the Government is the sole occupant of the building, for purposes of 
this clause, the leased premises include the land on which the building 
is sited and the building itself. Otherwise, the Government shall have 
the right to tie into or make any physical connection with any structure 
located on the property as is reasonably necessary for appropriate 
utilization of the leased space.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-13  Proposals for Adjustment.

    As prescribed in 570.703, insert the following clause:

                   Proposals for Adjustment (OCT 2016)

    (a) The Contracting Officer may, from time to time during the term 
of this lease, require changes to be made in the work or services to be 
performed and in the terms or conditions of this lease. Such changes 
will be required under the Changes clause.
    (b) If the Contracting Officer makes a change within the general 
scope of the lease, the Lessor shall submit, in a timely manner, an 
itemized cost proposal for the work to be accomplished or services to be 
performed when the cost exceeds $100,000. The proposal,

[[Page 260]]

including all subcontractor work, will contain at least the following 
details--
    (1) Material quantities and unit costs;
    (2) Labor costs (identified with specific item or material to be 
placed or operation to be performed);
    (3) Equipment costs;
    (4) Worker's compensation and public liability insurance;
    (5) Overhead;
    (6) Profit; and
    (7) Employment taxes under FICA and FUTA.
    (c) The following Federal Acquisition Regulation (FAR) provisions 
also apply to all proposals exceeding $750,000 in cost--
    (1) The Lessor shall provide cost or pricing data including 
subcontractor cost or pricing data (48 CFR 15.403-4); and
    (2) The Lessor's representative, all Contractors, and subcontractors 
whose portion of the work exceeds $750,000 must sign and return the 
``Certificate of Current Cost or Pricing Data'' (48 CFR 15.406-2).
    (d) Lessors shall also refer to 48 CFR Part 31, Contract Cost 
Principles, for information on which costs are allowable, reasonable, 
and allocable in Government work.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011; 81 
FR 68336, Oct. 4, 2016]



552.270-14  Changes.

    As prescribed in 570.703, insert the following clause:

                           Changes (JUN 2011)

    (a) The Contracting Officer may at any time, by written order, make 
changes within the general scope of this lease in any one or more of the 
following:
    (1) Specifications (including drawings and designs).
    (2) Work or services.
    (3) Facilities or space layout.
    (4) Amount of space, provided the Lessor consents to the change.
    (b) If any such change causes an increase or decrease in Lessor's 
cost of or the time required for performance under this lease, whether 
or not changed by the order, the Contracting Officer shall modify this 
lease to provide for one or more of the following:
    (1) A modification of the delivery date.
    (2) An equitable adjustment in the rental rate.
    (3) A lump sum equitable adjustment.
    (4) An equitable adjustment of the annual operating costs per ABOA 
square foot specified in this lease.
    (c) The Lessor must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the change order and 
must submit a proposal for adjustment. The Lessor's failure to assert 
its right for adjustment within the time frame specified herein shall be 
a waiver of the Lessor's right to an adjustment under this paragraph. 
Failure to agree to any adjustment shall be a dispute under the Disputes 
clause. However, nothing in this clause excuses the lessor from 
proceeding with the change as directed.
    (d) Absent such written change order, the Government is not liable 
to Lessor under this clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-15  Liquidated Damages.

    As prescribed in 570.703, insert the following clause:

                      Liquidated Damages (SEP 1999)

    In case of failure on the part of the Lessor to complete the work 
within the time fixed in the lease contract or letter of award, the 
Lessor shall pay the Government as fixed and agreed liquidated damages, 
pursuant to this clause, the sum $___ for each and every calendar day 
that the delivery is delayed beyond the date specified for delivery of 
all the space ready for occupancy by the Government. this remedy is not 
exclusive and is in addition to any other remedies which may be 
available under this lease or at law.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-16  Adjustment for Vacant Premises.

    As prescribed in 570.703, insert the following clause:

                Adjustment for Vacant Premises (JUN 2011)

    (a) If the Government fails to occupy any portion of the leased 
premises or vacates the premises in whole or in part before the lease 
term expires, the rental rate will be reduced. The reduction shall occur 
after the Government gives 30 calendar days notice to the Lessor, and 
shall continue in effect until the Government occupies or reoccupies the 
vacant premises or the lease expires or is terminated.
    (b) The rate will be reduced by that portion of the costs per ABOA 
square foot of operating expenses not required to maintain the space. In 
addition, at the first operating cost adjustment after the notice of 
reduction to the rent, the base cost of services subject to

[[Page 261]]

escalation will be reduced by said amount. In the event that the 
Government occupies or reoccupies the vacant premises on the lease 
anniversary date following the occupation of the vacant premises, the 
base cost of services subject to escalation will be increased by said 
amount.
    (c) The reduction in operating costs shall be negotiated and stated 
in the lease.

                             (End of clause)

[76 FR 30846, May 27, 2011]



552.270-17  Delivery and Condition.

    As prescribed in 570.703, insert the following clause:

                    Delivery and Condition (SEP 1999)

    (a) Unless the Government elects to have the space occupied in 
increments, the space must be delivered ready for occupancy as a 
complete unit. The Government reserves the right to determine when the 
space is substantially complete.
    (b) If the premises do not in every respect comply with the 
provisions of this lease the Contracting Officer may, in accordance with 
the Failure in Performance clause of this lease, elect to reduce the 
rent payments.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-18  Default in Delivery--Time Extensions.

    As prescribed in 570.703, insert the following clause:

             Default In Delivery--Time Extensions (SEP 1999)

    (a) With respect to Lessor's obligation to deliver the premises 
substantially complete by the delivery date, time is of the essence. If 
the Lessor fails to work diligently to ensure its substantial completion 
by the delivery date or fails to substantially complete the work by such 
date, the Government may by notice to the Lessor terminate this lease. 
Such termination is effective when received by Lessor. The Lessor and 
the Lessor's sureties, if any, are jointly and severally liable for any 
damages to the Government resulting from such termination, as provided 
in this clause. The Government is entitled to the following damages:
    (1) The Government's aggregate rent, estimated real estate tax, and 
operating cost adjustments for the firm term and all option terms of its 
replacement lease or leases, in excess of the aggregate rent and 
estimated real estate tax and operating cost adjustments for the term. 
If the Government procures replacement premises for a term (including 
all option terms) in excess of this lease term, the Lessor is not liable 
for excess Government rent or adjustments during such excess lease term.
    (2) All administrative and other costs the Government incurs in 
procuring a replacement lease or leases.
    (3) Other, additional relief provided for in this lease, at law, or 
in equity.
    (b) Damages to which the Government is entitled under this clause 
are due and payable thirty (30) days following the date Lessor receives 
notice from the Contracting Officer specifying such damages.
    (c) Delivery by Lessor of less than the minimum ABOA square footage 
required by this lease shall in no event be construed as substantial 
completion, except as the Contracting Officer permits.
    (d) The Government shall not terminate this lease under this clause 
nor charge the Lessor with damages under this clause, if (1) the delay 
in substantially completing the work arises from excusable delays, and 
(2) the Lessor within 10 days from the beginning of any such delay 
(unless extended in writing by the Contracting Officer) provides notice 
to the Contracting Officer of the causes of delay. The Contracting 
Officer shall ascertain the facts and the extent of delay. If the facts 
warrant, the Contracting Officer shall extend the delivery date, to the 
extent of such delay at no additional costs to the Government. A time 
extension is the sole remedy of the Lessor.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-19  Progressive Occupancy.

    As prescribed in 570.703, insert the following clause:

                    Progressive Occupancy (SEP 1999)

    The Government shall have the right to elect to occupy the space in 
partial increments prior to the substantial completion of the entire 
leased premises, and the Lessor agrees to schedule its work so as to 
deliver the space incrementally as elected by the Government. The 
Government shall pay rent commencing with the first business day 
following substantial completion of the entire leased premise unless the 
Government has elected to occupy the leased premises incrementally. In 
case of incremental occupancy, the Government shall pay rent pro rata 
upon the first business day following substantial completion of each 
incremental unit. Rental payments shall become due on the first workday 
of the month following the month

[[Page 262]]

in which an increment of space is substantially complete, except that 
should an increment of space be substantially completed after the 
fifteenth day of the month, the payment due date will be the first 
workday of the second month following the month in which it was 
substantially complete. The commencement date of the firm lease term 
will be a complete determined from all rent commencement dates.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-20  Payment.

    As prescribed in 570.703, insert the following clause:

                           Payment (SEP 1999)

    (a) When space is offered and accepted, ABOA square footage 
delivered will be confirmed by either:
    (1) The Government's measurement of plans submitted by the 
successful offeror as approved by the Government, and an inspection of 
the space to verify that the delivered space conforms with such plans.
    (2) A mutual on-site measurement of the space if the Contracting 
Officer determines it necessary.
    (b) The Government will not pay for space in excess of the amount of 
ABOA square footage stated in the lease.
    (c) If the amount of ABOA square footage delivered is less than the 
amount agreed to in the lease, the lease will be modified to reflect the 
amount of ABOA space delivered and the annual rental will be adjusted as 
follows:
    ABOA square feet not delivered multiplied by one plus the common 
area factor (CAF), multiplied by the rate per rentable square foot 
(RSF). That is:

  x  (1+CAF)  x  Rate per RSF = Reduction in Annual Rent.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-21  Effect of Acceptance and Occupancy.

    As prescribed in 570.703, insert the following clause:

              Effect of Acceptance and Occupancy (SEP 1999)

    Neither the Government's acceptance of the premises for occupancy, 
nor the Government's occupancy thereof, shall be construed as a waiver 
of any requirement of or right of the Government under this Lease, or as 
otherwise prejudicing the Government with respect to any such 
requirement or right.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-22  Default by Lessor During the Term.

    As prescribed in 570.703, insert the following clause:

              Default By Lessor During the Term (SEP 1999)

    (a) Each of the following shall constitute a default by Lessor under 
this lease:
    (1) Failure to maintain, repair, operate or service the premises as 
and when specified in this lease, or failure to perform any other 
requirement of this lease as and when required provided any such failure 
shall remain uncured for a period of thirty (30) days next following 
Lessor's receipt of notice thereof from the Contracting Officer or an 
authorized representative.
    (2) Repeated and unexcused failure by Lessor to comply with one or 
more requirements of this lease shall constitute a default 
notwithstanding that one or all such failures shall have been timely 
cured pursuant to this clause.
    (b) If a default occurs, the Government may, by notice to Lessor, 
terminate this lease for default and if so terminated, the Government 
shall be entitled to the damages specified in the Default in Delivery-
Time Extensions clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



552.270-23  Subordination, Nondisturbance and Attornment.

    As prescribed in 570.703, insert the following clause:

         Subordination, Nondisturbance and Attornment (SEP 1999)

    (a) Lessor warrants that it holds such title to or other interest in 
the premises and other property as is necessary to the Government's 
access to the premises and full use and enjoyment thereof in accordance 
with the provisions of this lease. Government agrees, in consideration 
of the warranties and conditions set forth in this clause, that this 
lease is subject and subordinate to any and all recorded mortgages, 
deeds of trust and other liens now or hereafter existing or imposed upon 
the premises, and to any renewal, modification or extension thereof. It

[[Page 263]]

is the intention of the parties that this provision shall be self-
operative and that no further instrument shall be required to effect the 
present or subsequent subordination of this lease. Government agrees, 
however, within twenty (20) business days next following the Contracting 
Officer's receipt of a written demand, to execute such instruments as 
Lessor may reasonably request to evidence further the subordination of 
this lease to any existing or future mortgage, deed of trust or other 
security interest pertaining to the premises, and to any water, sewer or 
access easement necessary or desirable to serve the premises or 
adjoining property owned in whole or in part by Lessor if such easement 
does not interfere with the full enjoyment of any right granted the 
Government under this lease.
    (b) No such subordination, to either existing or future mortgages, 
deeds of trust or other lien or security instrument shall operate to 
affect adversely any right of the Government under this lease so long as 
the Government is not in default under this lease. Lessor will include 
in any future mortgage, deed of trust or other security instrument to 
which this lease becomes subordinate, or in a separate nondisturbance 
agreement, a provision to the foregoing effect. Lessor warrants that the 
holders of all notes or other obligations secured by existing mortgages, 
deeds of trust or other security instruments have consented to the 
provisions of this clause, and agrees to provide true copies of all such 
consents to the Contracting Officer promptly upon demand.
    (c) In the event of any sale of the premises or any portion thereof 
by foreclosure of the lien of any such mo