[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 15 to 28

                         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

[[Page ii]]

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[[Page iii]]




                            Table of Contents



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

  Title 48:
          Chapter 15--Environmental Protection Agency                3
          Chapter 16--Office of Personnel Management Federal 
          Employees Health Benefits Acquisition Regulation         109
          Chapter 17--Office of Personnel Management               169
          Chapter 18--National Aeronautics and Space 
          Administration                                           173
          Chapter 19--Broadcasting Board of Governors              341
          Chapter 20--Nuclear Regulatory Commission                353
          Chapter 21--Office of Personnel Management, Federal 
          Employees Group Life Insurance Federal Acquisition 
          Regulation                                               405
          Chapter 23--Social Security Administration               443
          Chapter 24--Department of Housing and Urban 
          Development                                              447
          Chapter 25--National Science Foundation                  515
          Chapter 28--Department of Justice                        525
  Finding Aids:
      Table of CFR Titles and Chapters........................     567
      Alphabetical List of Agencies Appearing in the CFR......     587
      List of CFR Sections Affected...........................     597

[[Page iv]]





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

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

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

[[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

    The Government Publishing Office (GPO) processes all sales and 
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write to: US Government Publishing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

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 
information, contact the GPO Customer Contact Center, U.S. Government 
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.







[[Page ix]]



                               THIS TITLE

    Title 48--Federal Acquisition Regulations System is composed of 
seven volumes. The chapters in these volumes are arranged as follows: 
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and 
chapter 29 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2015.

    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, Robert J. Sheehan, III 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 15 to 28)

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

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

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

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

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

chapter 19--Broadcasting Board of Governors.................        1901

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

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

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

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

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

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

[[Page 3]]



               CHAPTER 15--ENVIRONMENTAL PROTECTION AGENCY




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


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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1500

[Reserved]

1501            General.....................................           5
1502            Definition of words and terms...............           8
1503            Improper business practices and personal 
                    conflicts of interest...................           8
1504            Administrative matters......................          11
                   SUBCHAPTER B--ACQUISITION PLANNING
1505            Publicizing contract actions................          13
1506            Competition requirements....................          13
1508            Required sources of supply..................          14
1509            Contractor qualifications...................          15
1511            Describing agency needs.....................          19
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1513            Simplified acquisition procedures...........          21
1514            Sealed bidding..............................          21
1515            Contracting by negotiation..................          22
1516            Types of contracts..........................          27
1517            Special contracting methods.................          35
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1519            Small business programs.....................          37
1520            Labor surplus area concerns.................          39
1522            Application of labor laws to Government 
                    acquisitions............................          39
1523            Environmental, conservation, occupational 
                    safety, and drug-free workplace.........          40
1524            Protection of privacy and freedom of 
                    information.............................          41

[[Page 4]]

1525            Foreign acquisition.........................          41
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1527            Patents, data, and copyrights...............          42
1528            Bonds and insurance.........................          42
1529            Taxes.......................................          42
1530            Cost accounting standards...................          43
1531            Contract cost principles and procedures.....          43
1532            Contract financing..........................          43
1533            Protests, disputes and appeals..............          45
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1535            Research and development contracting........          46
1536            Construction and architect-engineer 
                    contracts...............................          47
1537            Service contracting.........................          48
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1542            Contract administration.....................          50
1545            Government property.........................          51
1546            Quality assurance...........................          51
1548

Value engineering [Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
1552            Solicitation provisions and contract clauses          53
1553            Forms.......................................         107
1554-1599

 [Reserved]

[[Page 5]]



                          SUBCHAPTER A_GENERAL



                          PART 1500 [RESERVED]



PART 1501_GENERAL--Table of Contents



Sec.
1501.000 Scope of part.

               Subpart 1501.1_Purpose, Authority, Issuance

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

              Subpart 1501.3_Agency Acquisition Regulations

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

                        Subpart 1501.4_Deviations

1501.401 Definition.
1501.403 Individual deviations.
1501.404 Class deviations

        Subpart 1501.6_Contracting Authority and Responsibilities

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

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

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



1501.000  Scope of part.

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



               Subpart 1501.1_Purpose, Authority, Issuance



1501.101  Purpose.

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

[60 FR 38505, July 27, 1995]



1501.104  Applicability.

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

[62 FR 33572, June 20, 1997]



1501.105  Issuance.



1501.105-1  Publication and code arrangement.

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

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



1501.105-2  Arrangement of regulations.

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

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



1501.105-3  Copies.

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

[[Page 6]]

the EPA Facilities and Support Services Division.

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



              Subpart 1501.3_Agency Acquisition Regulations



1501.301  Policy.

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

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



1501.370  OMB approvals under the Paperwork Reduction Act.

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

------------------------------------------------------------------------
                                                             OMB control
                      48 CFR citation                            No.
------------------------------------------------------------------------
  Specification, Standards and other Purchase Descriptions
 
1511.011-70 and 1511.011-72................................    2030-0005
1510.011-80 through 1510.011-81............................    2030-0023
Contract delivery or performance 1512.104..................    2030-0023
 
  Small Purchase and Other Simplified Purchase Procedures
 
1513.505 through 1513.570..................................    2030-0007
 
                     Contract Financing
 
1532.170(a)................................................    2030-0016
 
        Solicitation Provisions and Contract Clauses
 
1552.209-71................................................    2030-0023
1552.209-73 through 1552.209-74............................    2030-0023
1552.211-72................................................    2030-0005
1552.210-80................................................    2030-0023
1552.212-71................................................    2030-0023
1552.215-72 through 1552.215-76............................    2030-0006
1552.227-76................................................    2030-0023
------------------------------------------------------------------------


[59 FR 18619, Apr. 19, 1994, as amended at 59 FR 32134, June 22, 1994; 
61 FR 29316, June 10, 1996; 81 FR 31528, May 19, 2016]



                        Subpart 1501.4_Deviations



1501.401  Definition.

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

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



1501.403  Individual deviations.

    Requests for individual deviations from the FAR and the EPAAR shall 
be submitted to the Head of the Contracting Activity (HCA) for approval. 
Requests submitted shall cite the specific part of the FAR or EPAAR from 
which it is desired to deviate, shall set forth the nature of the 
deviation(s), and shall give the reasons for the action requested.

[65 FR 37291, June 14, 2000]



1501.404  Class deviations.

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

[67 FR 5072, Feb. 4, 2002]



        Subpart 1501.6_Contracting Authority and Responsibilities



1501.602-3  Ratification of unauthorized commitments.

    (a) Applicability. The provisions of this section apply to all 
unauthorized commitments, whether oral or written and without regard to 
dollar value. Examples of unauthorized commitments are;
    (1) Ordering supplies or services by an individual without 
contracting authority;
    (2) Unauthorized direction of work through assignment of orders or 
tasks;
    (3) Unauthorized addition of new work;
    (4) Unauthorized direction of contractors to subcontract with 
particular firms; or
    (5) Any other unauthorized direction which changed the terms and 
conditions of the contract.
    (b)(1) Ratification Approval. The Senior Procurement Executive (SPE) 
as defined in 1502.100 is the ratifying official for all ratification 
actions $25,000 and above.
    (2) The Chief of the Contracting Office (CCO) as defined in 1502.100 
is delegated authority to be the ratifying official for all ratification 
actions below $25,000.

[[Page 7]]

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

[[Page 8]]

at or below the small purchase limitation is optional and may be 
accomplished at the discretion of the ratifying official.
    (d) Paid Advertisements. (1) EPA is generally not authorized to 
ratify improperly ordered paid advertisements. The ratifying official, 
however, may determine payment is proper subject to the limitations in 
FAR 1.602-3(c) if the individual responsible for the unauthorized 
commitment acted in good faith to comply with Agency acquisition 
policies and procedures.
    (2) The paying office shall forward invoice claims received in its 
office for improper paid advertisements to the cognizant ratifying 
official for a determination regarding ratification of the action.
    (3) If the ratifying official determines that an unauthorized 
commitment cannot be ratified by the Agency, the ratifying official 
shall instruct the submitter to present its claim to the General 
Accounting Office in accordance with the instructions contained in 4 CFR 
part 31, Claims Against the United States, General Procedures.
    (e) Payment of Properly Ratified Claims. After the unauthorized 
commitment is ratified, the Contractor must submit an invoice (or 
resubmit an invoice if one was previously submitted) citing the 
appropriate contract or purchase order number.

[55 FR 18340, May 2, 1990, as amended at 59 FR 18976, Apr. 21, 1994; 60 
FR 38505, July 27, 1995; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 
20, 1997; 65 FR 37291, June 14, 2000; 65 FR 80792, Dec. 22, 2000; 67 FR 
5072, Feb. 4, 2002; 80 FR 75951, Dec. 7, 2015]



1501.603  Selection, appointment, and termination of appointment.



1501.603-1  General.

    EPA Contracting Officers shall be selected and appointed and their 
appointments terminated in accordance with the Contracting Officer 
warrant program specified in EPA Acquisition Guide (EPAAG) subsection 
1.6.4.

[82 FR 33018, July 19, 2017]



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



                       Subpart 1502.1_Definitions

Sec.
1502.100 Definitions.

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



                       Subpart 1502.1_Definitions



1502.100  Definitions.

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

[67 FR 5072, Feb. 4, 2002, as amended at 80 FR 75951, Dec. 7, 2015]



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



Sec.
1503.000 Scope of part.

                        Subpart 1503.1 Safeguards

1503.101-370 Financial conflicts of interest and loss of impartiality.
1503.104-4 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

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

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

[[Page 9]]

    Subpart 1503.9 Whistleblower Protections for Contractor Employees

1503.905 Procedures for investigating complaints.

     Subpart 1503.10 Contractor Code of Business Ethics and Conduct

1503.1002 Policy.
1503.1003 Requirements.
1503.1004 Contract clause.

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

    Source: 81 FR 31178, May 18, 2016, unless otherwise noted.



1503.000  Scope of part.

    This part implements FAR part 3, cites EPA regulations on employee 
responsibilities and conduct, establishes responsibility for reporting 
violations and related actions, and provides for authorization of 
exceptions to policy.



                        Subpart 1503.1_Safeguards



1503.101-370  Financial conflicts of interest and loss of impartiality.

    (a) Each EPA employee (including special government employees as 
defined by 18 U.S.C. 202 and 1503.600-71(b)) engaged in source 
evaluation and selection is required to abide by and be familiar with 
the conflict of interest statutes codified in Title 18 of the United 
States Code, as well as the Standards of Ethical Conduct for Employees 
of the Executive Branch, 5 CFR part 2635.
    (b) Pursuant to the financial conflict of interest statute, 18 
U.S.C. 208 and 5 CFR part 2635, subparts D and E, each employee must 
abide by ethics requirements regarding financial conflict of interest 
and impartiality in performing official duties. The employee shall 
inform his or her Deputy Ethics Official and the Source Selection 
Authority (SSA) in writing if his/her participation in the source 
evaluation and selection process may raise possible or apparent conflict 
of interest or impartiality concerns. The employee must cease work on 
the source evaluation and selection process until the appropriate ethics 
official makes a determination. Please note that only the Office of 
General Counsel can direct employees to divest of financial interests or 
to recommend any waivers of the financial conflict of interest 
standards.



1503.104-4  Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.

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

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

RFP :
Offeror:

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

Name and Organization:
Date of Execution:

                          (End of certificate)

    (b) Information contained in proposals will be protected and 
disclosed to the extent permitted by law, and in accordance with FAR 
3.104-4, 15.207, and Agency procedures at 40 CFR part 2.

[[Page 10]]



  Subpart 1503.6_Contracts With Government Employees or Organizations 
                       Owned or Controlled by Them



1503.600-70  Scope of subpart.

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



1503.600-71  Definitions.

    (a) Employee means an EPA officer and an individual who is appointed 
in the civil service and engaged in the performance of a Federal 
function under authority of law or an Executive act. See 5 U.S.C. 2105.
    (b) Special government employee means an officer or employee of EPA 
who is retained, designated, appointed or employed to perform, with or 
without compensation, for not to exceed 130 days during any period of 
365 consecutive days, temporary duties either on a full-time or 
intermittent basis. See 18 U.S.C. 202.



1503.601  Policy.

    (a) No contract may be awarded without competition to a former 
employee or special government employee (or to a business concern or 
other organization owned or substantially owned or controlled by a 
former employee) whose employment terminated within 365 calendar days 
before submission of a proposal to EPA.
    (b) No contract shall be awarded without competition to a firm which 
employs, or proposes to employ, a current employee or special government 
employee, or a former EPA employee or special government employee, whose 
employment terminated within 365 calendar days before submission of a 
proposal to EPA, if either of the following conditions exists:
    (1) The current or former EPA employee or special government 
employee is or was involved in development or negotiating the proposal 
for the prospective contractor; or
    (2) The current or former EPA employee or special government 
employee will be involved directly or indirectly in the management, 
administration, or performance of the contract.



1503.602  Exceptions.

    The Assistant Administrator for the Office of Administration and 
Resources Management may authorize an exception, in writing, to the 
policy in FAR 3.601 and 1503.601 for the reasons stated in FAR 3.602, if 
the exception would not involve a violation of 18 U.S.C. 203, 18 U.S.C. 
205, 18 U.S.C. 207, 18 U.S.C. 208, the Standards of Ethical Conduct for 
Employees of the Executive Branch at 5 CFR part 2635, or the EPA 
supplemental regulations at 5 CFR part 6401. The Assistant Administrator 
shall consult with the Designated Agency Ethics Official before 
authorizing any exceptions.



1503.670  Disclosure provision.

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



    Subpart 1503.9_Whistleblower Protections for Contractor Employees



1503.905  Procedures for investigating complaints.

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

[[Page 11]]



     Subpart 1503.10_Contractor Code of Business Ethics and Conduct



1503.1002  Policy.

    Government contractors must conduct themselves with the highest 
degree of integrity and honesty. Contractors should have standards of 
conduct and internal control systems that:
    (a) Are suitable to the size of the company and the extent of their 
involvement in Government contracting;
    (b) Promote such standards;
    (c) Facilitate timely discovery and disclosure of improper conduct 
in connection with Government contracts; and
    (d) Ensure corrective measures are promptly instituted and carried 
out.



1503.1003  Requirements.

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



1503.1004  Contract clause.

    As required by EPAAR 1503.1003(b), the contracting officer shall 
insert the clause at 1552.203-71, Display of EPA Office of Inspector 
General Hotline Poster, in all contracts valued at $1,000,000 or more, 
including all contract options.



PART 1504_ADMINISTRATIVE MATTERS--Table of Contents



                    Subpart 1504.6_Contract Reporting

Sec.
1504.670 [Reserved]

                      Subpart 1504.8_Contract Files

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

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

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



                    Subpart 1504.6_Contract Reporting



1504.670  [Reserved]



                      Subpart 1504.8_Contract Files



1504.804  Closeout of contract files.



1504.804-5  Detailed procedures for closing out contract files.

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

[[Page 12]]

49.107. All such audits will be coordinated through the cost advisory 
group in the contracting office. Exceptions to these procedures are the 
quick close-out procedures as described in FAR 42.708 and EPA 
Acquisition Guide (EPAAG) subsection 4.8.1.

[82 FR 33019, July 19, 2017]

[[Page 13]]



                    SUBCHAPTER B_ACQUISITION PLANNING





PART 1505_PUBLICIZING CONTRACT ACTIONS--Table of Contents



Sec.
1505.000 Scope of part.

          Subpart 1505.2_Synopses of Proposed Contract Actions

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

Subpart 1505.5--Paid Advertisement [Reserved]

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

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



1505.000  Scope of part.

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

[50 FR 14357, Apr. 11, 1985]



          Subpart 1505.2_Synopses of Proposed Contract Actions



1505.202  Exceptions.

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

[60 FR 38505, July 27, 1995]



1505.203  Publicizing and response time.

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

[50 FR 14357, Apr. 11, 1985, as amended at 62 FR 33572, June 20, 1997; 
81 FR 31528, May 19, 2016]



1505.271  [Reserved]

Subpart 1505.5--Paid Advertisement [Reserved]



PART 1506_COMPETITION REQUIREMENTS--Table of Contents



Sec.
1506.000 Scope of part.

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

           Subpart 1506.3_Other Than Full and Open Competition

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

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

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



1506.000  Scope of part.

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

[[Page 14]]

obtaining full and open competition in the acquisition process.

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



           Subpart 1506.3_Other Than Full and Open Competition



1506.302-5  Authorized or required by statute.

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

[53 FR 31872, Aug. 22, 1988]



1506.303-2  Content.

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

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



PART 1508_REQUIRED SOURCES OF SUPPLY--Table of Contents



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



       Subpart 1508.8_Acquisition of Printing and Related Supplies



1508.870  Contract clause.

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

[49 FR 8838, Mar. 8, 1984]

[[Page 15]]



PART 1509_CONTRACTOR QUALIFICATIONS--Table of Contents



Sec.
1509.000 Scope of part.

         Subpart 1509.4_Debarment, Suspension and Ineligibility

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

           Subpart 1509.5_Organizational Conflicts of Interest

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

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

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



1509.000  Scope of part.

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



         Subpart 1509.4_Debarment, Suspension and Ineligibility

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



1509.403  Definitions.

    The ``Debarring Official'' and the ``Suspending Official'' as 
defined in FAR 9.403 is a designated individual located in the Office of 
Grants and Debarment. This Agency official is authorized to make the 
determinations and provide the notifications required under FAR subpart 
9.4 or this subpart, except for the determinations required by FAR 
9.405-1(a) which are to be made by the Head of the Contracting Activity. 
All compelling reason determinations to be made by the Debarring or 
Suspending Official under FAR subpart 9.4 or this subpart will be made 
only after coordination and consultation with the Head of the 
Contracting Activity. See also 2 CFR part 1532.

[65 FR 37291, June 14, 2000, as amended at 72 FR 2427, Jan. 19, 2007]



1509.406  Debarment.



1509.406-3  Procedures.

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

[[Page 16]]

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



1509.407  Suspension.



1509.407-3  Procedures.

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



          Subpart 1509.5_Organizational Conflicts of Interests



1509.500  Scope of subpart.

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

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



1509.502  Applicability.

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



1509.503  Waiver.

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

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



1509.505-4  Obtaining access to proprietary information.

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

[[Page 17]]

the provisions of their contracts relating to the treatment of 
confidential business information.



1509.505-70  Information sources.

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

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



1509.507-1  Solicitation provisions.

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

[49 FR 8839, Mar. 8, 1994. Redesignated and amended at 59 FR 18619, Apr. 
19, 1994; 61 FR 57337, Nov. 6, 1996; 62 FR 33572, June 20, 1997; 82 FR 
33019, July 19, 2017]



1509.507-2  Contract clause.

    (a) The Contracting Officer shall include the clause at 1552.209-71, 
in all Superfund contracts in excess of the simplified acquisition 
threshold and, as appropriate, in simplified acquisitions for Superfund 
work. Contracts for other than Superfund work shall include Alternate I 
in this clause in lieu of paragraph (e).
    (b) The Contracting Officer shall include the clause at 1552.209-73, 
in all solicitations and contracts for Superfund work in excess of the 
simplified acquisition threshold and, as appropriate, in simplified 
acquisitions for Superfund

[[Page 18]]

work. Contracts for other than Superfund work shall include Alternate I 
in this clause in lieu of paragraph (d).
    (c) The Contracting Officer shall include the clause at 1552.209-74 
or its alternates in the following solicitations and contracts for 
Superfund work in excess of the simplified acquisition threshold and, as 
appropriate, in simplified acquisitions procedures for Superfund work. 
The Contracting Officer shall include the clause at 1552.209-74 in all 
Response Action Contract (RAC) solicitations and contracts, except Site 
Specific solicitations and contracts. The term ``RAC'' in the Limitation 
of Future Contracting clauses includes not only RAC solicitations and 
contracts but other long term response action solicitations and 
contracts that provide professional architect/engineer, technical, and 
management services to EPA to support remedial response, enforcement 
oversight and non-time critical removal activities under the 
Comprehensive Environmental Response Compensation and Liability Act of 
1980, as amended by the Superfund Amendments Reauthorization Act of 
1986; and the Robert T. Stafford Natural Disaster Act pursuant to the 
Federal Response Plan and other laws to help address and/or mitigate 
endangerment to the public health, welfare or environment during 
emergencies and natural disasters, and to support States and communities 
in preparing for the responses to releases of hazardous substances.
    (1) Alternate I shall be used in all Emergency and Rapid Response 
Services (ERRS) solicitations and contracts, except site specific 
solicitations and contracts. The term ``ERRS'' in the Limitation of 
Future Contracting clauses includes not only ERRS solicitations and 
contracts but other emergency response type solicitations and contracts 
that provide fast responsive environmental cleanup services for 
hazardous substances/wastes/contaminants/material and petroleum 
products/oil. Environmental cleanup response to natural disasters and 
terrorist activities may also be required. ERRS pilot scale studies are 
included in the term ``treatability studies.''
    (2) Alternate II shall be used in all Superfund Technical Assistance 
and Removal Team (START) solicitations and contracts. The term ``START'' 
in the Limitation of Future Contracting clauses include not only START 
solicitations and contracts but other site removal and technical support 
solicitations and contracts that include activities related to technical 
analyses in determining the nature and extent of contamination at a site 
and making recommendations regarding response technologies.
    (3) Alternate III shall be used in all Environmental Services 
Assistance Team (ESAT) solicitations and contracts.
    (4) Alternate IV shall be used in all Enforcement Support Services 
(ESS) solicitations and contracts. The term ``ESS'' in the Limitation of 
Future Contracting clauses not only includes ESS solicitation and 
contracts but other enforcement support type solicitations and contracts 
that involve removal actions, mandatory notices to Potentially 
Responsible Parties (PRPs), penalty assessments, public comment periods, 
negotiations with PRPs, and statutes of limitations for pursuing cost 
recovery. The enforcement support services required under the contract 
may be conducted to support EPA enforcement actions under any 
environmental statute.
    (5) Alternate V shall be used in all Superfund Headquarters Support 
solicitations and contracts. The Contracting Officer is authorized to 
modify paragraph (c) of Alternate V to reflect any unique limitations 
applicable to the program requirements.
    (6) Alternate VI shall be used in all Site Specific solicitations 
and contracts.
    (d) The Contracting Officer shall insert the clause at 1552.209-75 
in Superfund solicitations and contracts in excess of the simplified 
acquisition threshold, where the solicitation or contract does not 
include (EPAAR) 48 CFR 1552.211-74, Work Assignments, Alternate I, or a 
similar clause requiring conflict of interest certifications during 
contract performance. This clause requires an annual conflict of 
interest certification from contractors when the contract does not 
require the submission of other conflict of interest

[[Page 19]]

certifications during contract performance. Contracts requiring annual 
certifications include: Site Specific contracts, the Contract Laboratory 
Program (CLP), and the Sample Management Office (SMO) contracts. The 
annual certification requires a contractor to certify that all 
organizational conflicts of interest have been reported, and that its 
personnel performing work under EPA contracts or relating to EPA 
contracts have been informed of their obligation to report personal and 
organizational conflicts of interest to the Contractor. The annual 
certification shall cover the one-year period from the date of contract 
award for the initial certification, and a one-year period starting from 
the previous certification for subsequent certifications. The 
certification must be received by the Contracting Officer no later than 
45 days after the close of the certification period covered.

[59 FR 18619, Apr. 19, 1994, as amended at 61 FR 57337, Nov. 6, 1996; 70 
FR 61569, Oct. 25, 2005; 79 FR 76241, Dec. 22, 2014]



PART 1511_DESCRIBING AGENCY NEEDS--Table of Contents



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

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

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



1511.000  Scope of part.

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



1511.011  Solicitation Provisions and Contract Clauses.



1511.011-70  Reports of work.

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

[78 FR 46290, July 31, 2013]



1511.011-71  [Reserved]



1511.011-72  Monthly progress report.

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



1511.011-73  Level of effort.

    The Contracting Officer shall insert the clause at 1552.211-73, 
Level of Effort--Cost Reimbursement Contract, in cost-reimbursement 
contracts including cost contracts without fee, cost-sharing contracts, 
cost-plus-fixed-fee (CPFF) contracts, cost-plus-incentive-fee contracts 
(CPIF), and cost-plus-award-fee contracts (CPAF).

[81 FR 31866, May 20, 2016]



1511.011-74  Work assignments.

    (a) Policy. When issuing work assignments, the independent 
government cost estimate shall not be released to the contractor. In 
most cases the Contracting Officer (CO) should authorize the contractor 
to expend only the estimated labor hours necessary to develop the work 
plan and to initiate preliminary tasks which must be performed before 
work plan approval can be made. However, in cases where the 
uncertainties involved in the effort are of such a magnitude that there 
is no reasonable expectation that the contractor can estimate the level 
of effort required by the tasks, objectives, or outcomes of the 
requirement, the CO may provide a ceiling level of effort for the entire 
work assignment at the time of its issuance. In such cases, the specific 
uncertainties precluding reasonable estimation of the required level of 
effort

[[Page 20]]

on the contractor's part must be documented in the contract file.
    (b) Contract Clause. The CO shall insert the contract clause at 
1552.211.74, Work Assignments, in cost-reimbursement contracts when work 
assignments are used.
    (1) For Superfund contracts, except for contracts which require 
annual conflict of interest certificates (e.g., Site-Specific contracts, 
the Contract Laboratory Program (CLP), Sample Management Office (SMO) 
contracts), the CO shall use the clause with either Alternate I or 
Alternate II. Alternate I shall be used for contractors who have at 
least three (3) years of records that may be searched for certification 
purposes. Alternate II shall be used for contractors who do not have at 
least three (3) years of records that may be searched.
    (2) For non-Superfund contracts, the CO shall use the clause with 
either Alternate III or Alternate IV. Alternate III shall be used for 
contractors who have at least three (3) years of records that may be 
searched for certification purposes. Alternate IV shall be used for 
contractors who do not have at least three (3) years of records that may 
be searched.

[77 FR 8175, Feb. 14, 2012, as amended at 78 FR 46290, July 31, 2013; 79 
FR 75436, Dec. 18, 2014]



1511.011-75  Working files.

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



1511.011-76  Legal analysis.

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



1511.011-77  Final reports.

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



1511.011-78  Advisory and assistance services.

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



1511.011-79  Information resources management.

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

[[Page 21]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES





PART 1513_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents



Sec.
1513.000 Scope of part.

                         Subpart 1513.1_General

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

Subpart 1513.4--Imprest Fund [Reserved]

                     Subpart 1513.5_Purchase Orders

1513.505 Purchase order and related forms.
1513.507 Clauses.

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

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



1513.000  Scope of part.

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



                         Subpart 1513.1_General



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



1513.170-1  Contents of sole source justifications.

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

Subpart 1513.4--Imprest Fund [Reserved]



                     Subpart 1513.5_Purchase Orders



1513.505  Purchase order and related forms.

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

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



1513.507  Clauses.

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



PART 1514_SEALED BIDDING--Table of Contents



                   Subpart 1514.2_Solicitation of Bids

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

          Subpart 1514.4_Opening of Bids and Award of Contract

1514.404 Rejection of bids.

[[Page 22]]

1514.406 Mistakes in bids.

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

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



                   Subpart 1514.2_Solicitation of Bids



1514.201  Preparation of invitations for bids.



1514.201-6  Solicitation provisions.

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

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



1514.201-7  Contract clauses.

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

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



1514.205  Solicitation mailing lists.

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

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



          Subpart 1514.4_Opening of Bids and Award of Contract



1514.404  Rejection of bids.



1514.406  Mistakes in bids.



PART 1515_CONTRACTING BY NEGOTIATION--Table of Contents



Sec.
1515.000 Scope of part.

  Subpart 1515.2_Solicitation and Receipt of Proposals and Information

1515.209 Solicitation provisions and contract clauses.

                     Subpart 1515.4_Contract Pricing

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

                  Subpart 1515.6_Unsolicited Proposals

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

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

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



1515.000  Scope of part.

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



  Subpart 1515.2_Solicitation and Receipt of Proposals and Information



1515.209  Solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 1552.215-75, Past 
Performance Information, or a clause substantially the same as 1552.215-
75, in all competitively negotiated acquisitions

[[Page 23]]

with an estimated value in excess of the simplified acquisition 
threshold.

[80 FR 20170, Apr. 15, 2015]



                     Subpart 1515.4_Contract Pricing



1515.404-4  Profit.

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



1515.404-470  Policy.

    (a) The Agency's policy is to utilize profit to attract contractors 
who possess talents and skills necessary to the accomplishment of the 
objectives of the Agency, and to stimulate efficient contract 
performance. In negotiating profit/fee, it is necessary that all 
relevant factors be considered, and that fair and reasonable amounts be 
negotiated which give the contractor a profit objective commensurate 
with the nature of the work to be performed, the contractor's input to 
the total performance, and the risks assumed by the contractor.
    (b) The purpose of EPA's structured approach is:
    (1) To provide a standard method of evaluation;
    (2) To ensure consideration of all relevant factors;
    (3) To provide a basis for documentation and explanation of the 
profit or fee negotiation objective; and
    (4) To allow contractors to earn profits commensurate with the 
assumption of risk.
    (c) The profit-analysis factors prescribed in the EPA structured 
approach for analyzing profit or fee include those prescribed by FAR 
15.404(d)(1), and additional factors authorized by FAR 15.404(d)(2) to 
foster achievement of program objectives. These profit or fee factors 
are prescribed in 1515.404-471.



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

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

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

    (2) The contracting officer shall first measure the ``Contractor's 
Input to Total Performance'' by the assignment of a profit percentage 
within the designated weight ranges to each element of contract cost. 
Such costs are multiplied by the specific percentages to arrive at a 
specific dollar profit or fee.
    (3) The amount calculated for facilities capital cost of money 
(FCCM) shall not be included as part of the cost base for computation of 
profit or fee. The profit or fee objective shall be reduced by an amount 
equal to the amount of facilities capital cost of money allowed. A 
complete discussion of the determination of facilities capital cost of 
money and its application and administration is set forth in FAR 31.205-
10, and the appendix to the FAR (see 48 CFR 9904.414).
    (4) After computing a total dollar profit or fee for the 
Contractor's Input to Total Performance, the contracting officer shall 
calculate the specific profit dollars assigned for cost risk and 
performance. This is accomplished by multiplying the total Government 
cost objective, exclusive of any FCCM, by the specific weight assigned 
to cost risk and performance. The contracting officer shall then 
determine the profit

[[Page 24]]

or fee objective by adding the total profit dollars for the Contractor's 
Input to Total Performance to the specific dollar profits assigned to 
cost risk and performance. The contracting officer shall use EPA Form 
1900-2 in hardcopy or electronic copy equivalent to facilitate the 
calculation of the profit or fee objective.
    (5) The weight factors discussed in this section are designed for 
arriving at profit or fee objectives for other than nonprofit and not-
for-profit organizations. Nonprofit and not-for-profit organizations are 
addressed as follows:
    (i) Nonprofit and not-for-profit organizations are defined as those 
business entities organized and operated:
    (A) Exclusively for charitable, scientific, or educational purposes;
    (B) Where no part of the net earnings inure to the benefit of any 
private shareholder or individual;
    (C) Where no substantial part of the activities is for propaganda or 
otherwise attempting to influence legislation or participating in any 
political campaign on behalf of any candidate for public office; and
    (D) Which are exempt from Federal income taxation under Section 51 
of the Internal Revenue Code. (26 U.S.C.)
    (ii) For contracts with nonprofit and not-for-profit organizations 
where fees are involved, special factor of -3 percent shall be assigned 
in all cases.
    (c) Assignment of values to specific factors--(1) General. In making 
a judgment on the value of each factor, the contracting officer should 
be governed by the definition, description, and purpose of the factors, 
together with considerations for evaluation set forth in this paragraph.
    (2) Contractor's input to total performance. This factor is a 
measure of how much the contractor is expected to contribute to the 
overall effort necessary to meet the contract performance requirements 
in an efficient manner. This factor, which is separate from the 
contractor's responsibility for contract performance, takes into account 
what resources are necessary, and the creativity and ingenuity needed 
for the contractor to perform the statement of work successfully. This 
is a recognition that within a given performance output, or within a 
given sales dollar figure, necessary efforts on the part of individual 
contractors can vary widely in both value, quantity, and quality, and 
that the profit or fee objective should reflect the extent and nature of 
the contractor's contribution to total performance. Greater profit 
opportunity should be provided under contracts requiring a high degree 
of professional and managerial skill and to prospective contractors 
whose skills, facilities, and technical assets can be expected to lead 
to efficient and economical contract performance. The evaluation of this 
factor requires an analysis of the cost content of the proposed contract 
as follows:
    (i) Direct material (purchased parts and other material). (A) 
Analysis of these cost items shall include an evaluation of the 
managerial and technical effort necessary to obtain the required 
material. This evaluation shall include consideration of the number of 
orders and suppliers, and whether established sources are available or 
new sources must be developed. The contracting officer shall also 
determine whether the contractor will, for example, obtain the materials 
by routine orders or readily available supplies (particularly those of 
substantial value in relation to the total contract costs), or by 
detailed subcontracts for which the prime contractor will be required to 
develop complex specifications involving creative design.
    (B) Consideration should be given to the managerial and technical 
efforts necessary for the prime contractor to administer subcontracts, 
and to select subcontractors, including efforts to break out 
subcontracts from sole sources, through the introduction of competition.
    (C) Recognized costs proposed as direct material costs such as scrap 
charges shall be treated as material for profit evaluation.
    (D) If intracompany transfers are accepted at price, in accordance 
with FAR 31.205-26(e), they should be excluded from the profit or fee 
computation. Other intracompany transfers shall be evaluated by 
individual components of cost, i.e., material, labor, and overhead.
    (ii) Professional/technical and general labor. Analysis of labor 
should include

[[Page 25]]

evaluation of the comparative quality and level of the talents and 
experience to be employed. In evaluating labor for the purpose of 
assigning profit dollars, consideration should be given to the amount of 
notable scientific talent or unusual or scarce talent needed, in 
contrast to journeyman effort or supporting personnel. The diversity, or 
lack thereof, of scientific and engineering specialties required for 
contract performance, and the corresponding need for supervision and 
coordination, should also be evaluated.
    (iii) Overhead and general and administrative expenses. (A) Where 
practicable, analysis of these overhead items of cost should include the 
evaluation of the individual elements of these expenses, and how much 
they contribute to contract performance. This analysis should include a 
determination of the amount of labor within these overhead pools, and 
how this labor would be treated if it were considered as direct labor 
under the contract. The allocable labor elements should be given the 
same profit consideration as if they were direct labor. The other 
elements of indirect cost pools should be evaluated to determine whether 
they are routine expenses such as utilities, depreciation, and 
maintenance, and therefore given less profit consideration.
    (B) The contractor's accounting system need not break down its 
overhead expenses within the classification of professional/technical 
overhead, general overhead and general and administrative expenses.
    (iv) Subcontractors. (A) Subcontract costs should be analyzed from 
the standpoint of the talents and skills of the subcontractors. The 
analysis should consider if the prime contractor normally should be 
expected to have people with comparable expertise employed as full-time 
staff, or if the contract requires skills not normally available in an 
employer-employee relationship. Where the prime contractor is using 
subcontractors to perform labor which would normally be expected to be 
done in-house, the rating factor should generally be at or near 1 
percent. Where exceptional expertise is retained, or the prime 
contractor is participating in the mentor-prot[eacute]g[eacute] program, 
the assigned weight should be nearer to the high end of the range.
    (v) Other direct costs. The analysis of these costs should be 
similar to the analysis of direct material.
    (3) Contractor's assumption of contract cost risk. (i) The risk of 
contract costs should be shifted to the fullest extent practicable to 
contractors, and the Government should assign a rating that reflects the 
degree of risk assumption. Evaluation of this risk requires a 
determination of the degree of cost responsibility the contractor 
assumes, the reliability of the cost estimates in relation to the task 
assumed, and the chance of the contractor's success or failure. This 
factor is specifically limited to the risk of contract costs. Thus, such 
risks of losing potential profits in other fields are not within the 
scope of this factor.
    (ii) The first determination of the degree of cost responsibility 
assumed by the contractor is related to the sharing of total risk of 
contract cost by the Government and the contractor, depending on 
selection of contract type. The extremes are a cost-plus-fixed-fee 
contract requiring only that the contractor use its best efforts to 
perform a task, and a firm-fixed-price contract for a complex item. A 
cost-plus-fixed-fee contract would reflect a minimum assumption of cost 
responsibility by the contractor, whereas a firm-fixed-price contract 
would reflect a complete assumption of cost responsibility by the 
contractor. Therefore, in the first step of determining the value given 
for the contractor's assumption of contract cost risk, a lower rating 
would be assigned to a proposed cost-plus-fixed-fee best efforts 
contract, and a higher rating would be assigned to a firm-fixed-price 
contract.
    (iii) The second determination is that of the reliability of the 
cost estimates. Sound price negotiation requires well-defined contract 
objectives and reliable cost estimates. An excessive cost estimate 
reduces the possibility that the cost of performance will exceed the 
contract price, thereby reducing the contractor's assumption of contract 
cost risk.
    (iv) The third determination is that of the difficulty of the 
contractor's

[[Page 26]]

task. The contractor's task may be difficult or easy, regardless of the 
type of contract.
    (v) Contractors are likely to assume greater cost risks only if the 
contracting officer objectively analyzes the risk incident to the 
proposed contract, and is willing to compensate contractors for it. 
Generally, a cost-plus-fixed-fee contract would not justify a reward for 
risk in excess of 1 percent, nor would a firm-fixed-price contract 
normally justify a reward of less than 4 percent. Where proper contract 
type selection has been made, the reward for risk by contract type would 
usually fall into the following percentage ranges:

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

    (A) These ranges may not be appropriate for all acquisitions. The 
contracting officer might determine that a basis exists for high 
confidence in the reasonableness of the estimate, and that little 
opportunity exists for cost reduction without extraordinary efforts. The 
contractor's willingness to accept ceilings on their burden rates should 
be considered as a risk factor for cost-plus-fixed-fee contracts.
    (B) In making a contract cost risk evaluation in an acquisition that 
involves definitization of a letter contract, consideration should be 
given to the effect on total contract cost risk as a result of partial 
performance under a letter contract. Under some circumstances, the total 
amount of cost risk may have been effectively reduced by the existence 
of a letter contract. Under other circumstances, it may be apparent that 
the contractor's cost risk remained substantially as great as though a 
letter contract had not been used. Where a contractor has begun work 
under an anticipatory cost letter, the risk assumed is greater than 
normal. To be equitable, the determination of a profit weight for 
application to the total of all recognized costs, both those incurred 
and those yet to be expended, must be made with consideration to all 
relevant circumstances, not just to the portion of costs incurred or 
percentage of work completed prior to definitization.



1515.404-472  Other methods.

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



1515.404-473  Limitations.

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

[64 FR 47410, Aug. 31, 1999, as amended at 82 FR 33019, July 19, 2017]



1515.404-474  Waivers.

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

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

[[Page 27]]



1515.404-475  Cost realism.

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



1515.408  Solicitation provisions and contract clauses.

    (a) In addition to those provisions and clauses prescribed in FAR 
15.408, when an exception to FAR 15.403-1 does not apply and no other 
means available can be used to ascertain whether a fair and reasonable 
price can be determined, the contracting officer may insert in 
negotiated solicitations the provisions at--
    (1) 1552.215-72 when requesting information other than cost or 
pricing data, for cost-reimbursable, level-of-effort-contracts. Use 
Alternate I for cost-reimbursable, level-of-effort contracts when the 
Government's requirement is for fully dedicated staff for a twelve month 
period(s) of performance and performance is on a Government facility; 
Alternate II for acquisitions for cost-reimbursable, level-of-effort 
contracts when the Government's requirement is for fully dedicated staff 
for a twelve month period(s) of performance and performance is not on a 
Government facility; and Alternate III if the Government's requirement 
is for the acquisition of supplies or equipment. The contracting officer 
may make revisions, deletions, or additions to 1552.215-72 and its 
Alternates I-III as needed to fit an individual acquisition, and
    (2) 1552.215-73, General Financial and Organizational Information.
    (b) If uncompensated overtime is proposed, the resultant contract 
shall include the provisions at FAR 52.237-10 and include the provision 
at 1552.215-74. The contracting officer may use provisions substantially 
the same as 1552.215-74 without requesting a deviation to the EPAAR.



                  Subpart 1515.6_Unsolicited Proposals



1515.604  Agency points of contact.

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

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



1515.606-70  Contracting methods.

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



PART 1516_TYPES OF CONTRACTS--Table of Contents



               Subpart 1516.3_Cost-Reimbursement Contracts

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

                   Subpart 1516.4_Incentive Contracts

1516.401-1 General.
1516.401-70 Award term incentives.
1516.401-270 Definition.
1516.405-2 Cost-plus-award-fee contracts.
1516.405-270 Definitions.
1516.405-271 Limitations.
1516.405-272 Waiver.
1516.406 Contract clauses.

[[Page 28]]

              Subpart 1516.5_Indefinite-Delivery Contracts

1516.505 Contract clauses.

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

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

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

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



               Subpart 1516.3_Cost-Reimbursement Contracts



1516.301-70  Payment of fee.

    The policy of EPA for cost-reimbursement, term form contracts is to 
make provisional payment of fee (i.e. the fixed fee on cost-plus-fixed-
fee type contracts or the base fee on cost-plus-award-fee type 
contracts) on a percentage of work completed basis, when such a method 
will not prove detrimental to proper contract performance. Percentage of 
work completed is the ratio of the direct labor hours performed in 
relation to the direct labor hours set forth in the contract in clause 
48 CFR 1552.211-73, Level of Effort--Cost Reimbursement Contract. 
Provisional payment of fee will remain subject to withholding 
provisions, such as in FAR 52.216-8, Fixed Fee.

[82 FR 33019, July 19, 2017]



1516.303  Cost-sharing contracts.



1516.303-71  Definition.

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

[61 FR 14504, Apr. 2, 1996]



1516.303-72  Policy.

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

[61 FR 14504, Apr. 2, 1996]



1516.303-73  Types of cost-sharing.

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

[[Page 29]]

    (3) Be necessary to accomplish project objectives;
    (4) Provide for types of charges that would otherwise be allowable 
under applicable Federal cost principles appropriate to the contractor's 
organization; and
    (5) Not be paid for by the Federal Government under any contract, 
agreement or grant.

[61 FR 14504, Apr. 2, 1996]



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

    In-kind contributions accepted from a contractor will be addressed 
on a case-by-case basis provided the established values do not exceed 
fair market values.
    (a) Where the Agency receives title to donated land, building, 
equipment or supplies and the property is not fully consumed during 
performance of the contract, the Contracting Officer should establish 
the property's value based on the contractor's booked costs (i.e., 
acquisition cost less depreciation, if any) at the time of donation. If 
the booked costs reflect unrealistic values when compared to current 
market conditions, the Contracting Officer may establish another 
appropriate value if supported by an independent appraisal of the fair 
market value of the donated property or property in similar condition 
and circumstances.
    (b) The Contracting Officer will monitor reports of in-kind costs as 
they are incurred or recognized during the contract period of 
performance to determine that the value of in-kind services does not 
exceed fair market values.
    (c) The value of any services or the use of personal or real 
property donated by a contractor should be established when necessary in 
accordance with generally accepted accounting policies and Federal cost 
principles.

[61 FR 14505, Apr. 2, 1996]



1516.303-75  Amount of cost-sharing.

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

[61 FR 14505, Apr. 2, 1996]



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

    (a) Subcontractors under prime cost-sharing contracts who do not 
have a significant direct interest in the contract or who are not in a 
position to gain long-term benefits from the contract may earn a fee.
    (b) Contracting Officers should be alert to a potential 
vulnerability for the Government under cost-sharing contracts when 
evaluating proposed

[[Page 30]]

subcontractors or consenting to a subcontract during contract 
administration, where the subcontractor is a wholly-owned subsidiary of 
the prime. The vulnerability consists of the subsidiary earning a large 
amount of fee, which could be returned to the prime through stock 
dividends or other intercompany transactions. This could circumvent the 
objective of a cost-sharing contract.

[61 FR 14505, Apr. 2, 1996]



1516.303-77  Administrative requirements.

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

[61 FR 14505, Apr. 2, 1996]



1516.307  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-71, 
Date of Incurrence of Cost, in cost-reimbursement contracts when an 
anticipatory cost letter has been issued on the project.
    (b) The Contracting Officer shall insert the clause at 1552.216-74, 
Payment of Fee, in solicitations and contracts where a cost-
reimbursement term form contract is contemplated, unless the Contracting 
Officer determines that such a provision would be detrimental to 
ensuring proper contract performance.
    (c) The Contracting Officer shall insert a clause substantially the 
same as 48 CFR 1552.216-76, Estimated Cost and Cost-Sharing, in 
solicitations and contracts where the total incurred costs are shared by 
the contractor on a straight percentage basis. The Contracting Officer 
may develop other clauses, as appropriate, following the same approach, 
but reflecting different cost-sharing arrangements negotiated on 
specific contract actions.

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



1516.370  Solicitation provision.

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

[61 FR 14505, Apr. 2, 1996]



                   Subpart 1516.4_Incentive Contracts



1516.401-1  General.



1516.401-70  Award term incentives.

    (a) Award term incentives enable a contractor to become eligible for 
additional periods of performance under a current contract by achieving 
prescribed performance measures under that contract.
    (b) Award term incentives are designed to motivate contractors to 
superior performance. Accordingly, the prescribed performance measures, 
i.e., acceptable quality levels (AQL) which must be achieved by a 
contractor to become eligible for an award term typically will be in 
excess of the AQLs necessary for Government acceptance of contract 
deliverables.
    (c) The Award Term Incentive Plan sets forth the evaluation process, 
including the evaluation criteria and performance measures, and serves 
as the basis for award term decisions. The Award Term Incentive Plan may 
be unilaterally revised by the Government.
    (d) Award term incentives may be used in conjunction with options. 
The Federal Acquisition Regulation does not prescribe a level of 
performance for the exercise of options, as contrasted with award term 
incentives, which should require superior performance as

[[Page 31]]

discussed in paragraph (b) of this subsection. Award term incentive 
periods will follow any option periods.
    (e)(1) The Government has the unilateral right not to grant or to 
cancel award term incentive periods and the associated award term 
incentive plans if--
    (i) The Contracting Officer has failed to initiate an award term 
incentive period, regardless of whether the contractor's performance 
permitted the Contracting Officer to consider initiating the award term 
incentive period; or
    (ii) The contractor has failed to achieve the performance measures 
for the corresponding evaluation period; or
    (iii) The Government notifies the contractor in writing it does not 
have funds available for the award term; or
    (iv) The Government no longer has a need for the award term 
incentive period at or before the time an award term incentive period is 
to commence.
    (2) When an award term incentive period is not granted or cancelled, 
any--
    (i) Prior award term incentive periods for which the contractor 
remains otherwise eligible are unaffected.
    (ii) Subsequent award term incentive periods are thereby also 
cancelled.
    (f) Award term incentives may be appropriate for any type of service 
contract.

[73 FR 1980, Jan. 11, 2008]



1516.401-270  Definition.

    Acceptable quality level (AQL) as used in this subpart means the 
minimum percent of deliverables which are compliant with a given 
performance standard that would permit a contractor to become eligible 
for an award term incentive. Because the performance necessary for 
eligibility for the award term incentive may be in excess of that 
necessary for the Government acceptance of contract deliverables, the 
AQLs associated with the award term incentive may exceed the AQLs 
associated with the acceptance of contract deliverables. For example, 
under contract X, acceptable performance is 75 percent of reports 
submitted to the Government within five days. However, to be eligible 
for an award term incentive, 85 percent of reports must be submitted to 
the Government within five days.

[73 FR 1980, Jan. 11, 2008]



1516.405-2  Cost-plus-award-fee contracts.



1516.405-270  Definitions.

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

[60 FR 43404, Aug. 21, 1995. Redesignated at 73 FR 1981, Jan. 11, 2008]



1516.405-271  Limitations.

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

[60 FR 43404, Aug. 21, 1995. Redesignated at 73 FR 1981, Jan. 11, 2008]



1516.405-272  Waiver.

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

[[Page 32]]

Center in the Office of Acquisition Management.

[60 FR 43404, Aug. 21, 1995. Redesignated at 73 FR 1981, Jan. 11, 2008, 
as amended at 78 FR 46290, July 31, 2013]



1516.406  Contract clauses.

    (a) The Contracting Officer shall insert the clause at 1552.216-70, 
Award fee (MAY 2000), in solicitations and contracts where a cost-plus-
award-fee contract is contemplated.
    (b) The Contracting Officer shall insert the provision at 48 CFR 
1552.216-75, Base Fee and Award Fee Proposal, in all solicitations which 
contemplate the award of cost-plus-award-fee contracts. The Contracting 
Officer shall insert the appropriate percentages.
    (c) The Contracting Officer shall insert the clauses at 1552.216-77, 
Award Term Incentive, 1552.216-78, Award Term Incentive Plan, and 
1552.216-79 Award Term Availability of Funds in solicitations and 
contracts when award term incentives are contemplated. The clauses at 
1552.216-77 and 1552.216-78 may be used on substantially the same basis.
    (d) If the Contracting Officer wishes to use the ratings set forth 
in the Department of Defense Contractor Performance Assessment Reporting 
System on the contract at hand as the basis for contractor eligibility 
for an award term incentive, the Contracting Officer shall insert the 
clause at 1552.216-78 with its Alternate I.

[60 FR 43404, Aug. 21, 1995, as amended at 64 FR 3876, Jan. 26, 1999; 65 
FR 31500, May 18, 2000. Redesignated and amended at 73 FR 1981, Jan. 11, 
2008; 78 FR 46290, July 31, 2013; 81 FR 31528, May 19, 2016; 82 FR 
33019, July 19, 2017]



              Subpart 1516.5_Indefinite-Delivery Contracts



1516.505  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 1552.216-72, 
Ordering--By Designated Ordering Officers, or a clause substantially 
similar to the subject clause, in indefinite delivery/indefinite 
quantity type solicitations and contracts. The Contracting Officer shall 
insert Alternate I when formal input from the Contractor will not be 
obtained prior to order issuance.
    (b) The Contracting Officer shall insert the clause in 1552.216-73, 
Fixed Rates for Services--Indefinite Delivery/Indefinite Quantity 
Contract, in solicitations and contracts to specify fixed rates for 
services.

[49 FR 8852, Mar. 8, 1984, as amended at 79 FR 37960, July 3, 2014]



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



1516.603  Letter Contracts.



1516.603-1  What is a Notice to Proceed?

    (a) A Notice to Proceed (NTP) is a type of letter contract issued 
pursuant to FAR 16.603 under which an EPA Federal Classification Series 
1102 (FCS) contracting officer or a duly authorized EPA on-scene 
coordinator with delegated procurement authority may initiate, in 
certain defined situations and subject to certain limitations and 
conditions, contracting actions to respond to certain situations as 
described in CERCLA section 104(a)(1) (42 U.S.C. 9604(a)(1)) and the 
Clean Water Act sections 311(c)(2) and (e)(1)(B) (33 U.S.C. 1321(c)(2) 
and (e)(1)(B)). An NTP may be utilized as a contractual instrument for 
certain--
    (1) Actions that EPA is authorized to undertake under CERCLA section 
104(a)(1), 42 U.S.C. 9604(a)(1), and the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300), to respond to 
situations where any hazardous substance has been released or there is a 
substantial threat of such a release into the environment, or there is a 
release or substantial threat of release into the environment of any 
pollutant or contaminant which may present an imminent and substantial 
danger to the public health or welfare, and
    (2) Actions that EPA is authorized to undertake under sections 
311(c)(2) and (e)(1)(B) of the Clean Water Act, 33 U.S.C. 1321(c)(2) and 
(e)(1)(B), and the National Oil and Hazardous Substances Pollution 
Contingency Plan (40 CFR part 300), to respond when there is a 
discharge, or a substantial threat of a discharge (to or upon navigable 
waters, adjoining shorelines, the contiguous

[[Page 33]]

zone, or natural resources belonging to, appertaining to, or under the 
exclusive management of the United States), of oil or a hazardous 
substance from a vessel, onshore facility, or offshore facility that is 
a substantial threat to the public health or welfare. Pursuant to a 
class Justification For Other Than Full and Open Competition executed 
under the authority of FAR 6.302-2 and 6.303-1(c), an NTP may be issued 
on a non-competitive basis.
    (b) What do subsections 1516.603-1 and 1516.603-2 cover? EPAAR 
1516.603-1 and 1516.603-2 contain information and procedures relating to 
issuance and definitization of an NTP. An NTP is subject to, and must 
comply with, the applicable requirements for letter contracts in FAR 
16.603 and the requirements in this section, and be definitized by an 
EPA FCS 1102 contracting officer.

[66 FR 12900, Mar. 1, 2001]



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

    (a) An EPA FCS 1102 contracting officer or a duly authorized EPA on-
scene coordinator with a delegation of procurement authority may issue 
an NTP so long as it does not exceed the limits of his or her 
procurement authority and only when all of the following conditions have 
been met:
    (1) A written determination has been made by the Federal on-scene 
coordinator that--
    (i) As authorized by and consistent with CERCLA section 104(a)(1), 
42 U.S.C. 9604(a)(1), and the National Oil and Hazardous Substances 
Pollution Contingency Plan (40 CFR part 300), the EPA must take action 
to respond to a hazardous substance release or substantial threat of 
such a release into the environment, or a release or substantial threat 
of a release into the environment of any pollutant or contaminant which 
may present an imminent and substantial danger to the public health or 
welfare, or
    (ii) As authorized by and consistent with the Clean Water Act 
sections 311(c)(2) and (e)(1)(B), 33 U.S.C. 1321(c)(2) and (e)(1)(B), 
and the National Oil and Hazardous Substances Pollution Contingency Plan 
(40 CFR part 300), the EPA must take action to respond to a discharge, 
or a substantial threat of a discharge (to or upon navigable waters, 
adjoining shorelines, the contiguous zone, or natural resources 
belonging to, appertaining to, or under the exclusive management of the 
United States), of oil or a hazardous substance from a vessel, offshore 
facility, or onshore facility that is of such a size and character as to 
pose a substantial threat to the public health or welfare of the United 
States; and
    (2) Before a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority may issue an NTP, he or she must 
confirm that an EPA FCS 1102 contracting officer is not available to 
provide the required contracting support by the time the Federal on-
scene coordinator requires the response action to be undertaken; and
    (3) A written determination is made by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority that there is no other existing contracting 
mechanism available to provide the required contracting support by the 
time required, including the inability of an existing emergency response 
contractor or other existing contract vehicle to respond in the required 
time frame. These conditions, as well as any other requirements 
applicable to NTPs or letter contracts contained in the FAR or EPAAR , 
must be met before an NTP can be issued by an EPA FCS 1102 contracting 
officer or a duly authorized EPA on-scene coordinator with a delegation 
of procurement authority.
    (b) What should be included in an NTP? (1) Since an NTP is a type of 
letter contract, it is subject to the requirements of FAR 16.603. All of 
the relevant requirements of FAR 16.603 apply to NTP's including FAR 
16.603-2, 16.603-3, and 16.603-4, and an NTP will include all 
appropriate FAR and EPAAR contract clauses. An NTP should also include 
an overall price ceiling and be as complete and definite as possible 
under the circumstances. To the extent NTPs require modification of any 
FAR or EPAAR prescribed procedures or clauses, an appropriate FAR or 
EPAAR deviation will be prepared.

[[Page 34]]

    (2) The EPA FCS 1102 contracting officer or duly authorized EPA on-
scene coordinator with a delegation of procurement authority shall 
include in each NTP the clauses required by the FAR or EPAAR for the 
type of definitive contract contemplated and any additional clauses 
known to be appropriate for it. In addition, the following clauses must 
be inserted in the solicitation (if one is issued) and the NTP when an 
NTP is used:
    (i) The clause at FAR 52.216-23, Execution and Commencement of Work, 
except that the term on-scene coordinator may be used in place of the 
term contracting officer;
    (ii) The clause at FAR 52.216-24, Limitation of Government 
Liability, with dollar amounts completed in a manner consistent with FAR 
16.603-2(d); and
    (iii) The clause at FAR 52.216-25, Contract Definitization, with its 
paragraph (b) completed in a manner consistent with FAR 16.603-2(c) or 
any applicable FAR deviation. The clause at FAR 52.216-26, Payment of 
Allowable Costs Before Definitization, shall also be included in a 
solicitation (if one is issued) and NTPs if a cost-reimbursement 
definitive contract is contemplated.
    (3) Each NTP shall, as required by the clause at FAR 52.216-25, 
Contract Definitization, contain a negotiated definitization schedule 
that includes:
    (i) Dates for submission of the contractor's price proposal, 
required cost and pricing data, and if required, make-or-buy and 
subcontracting plans;
    (ii) The date for the start of negotiations; and
    (iii) A target date for definitization which shall be the earliest 
practicable date for definitization (an NTP must be definitized by an 
EPA FCS 1102 contracting officer). The schedule will provide for 
definitization of the NTP within 90 calendar days after the date of the 
NTP award. However, the EPA FCS 1102 contracting officer may, in extreme 
cases and according to agency procedures, authorize an additional 
period. If, after exhausting all reasonable efforts, the EPA FCS 1102 
contracting officer and the contractor cannot negotiate a definitive 
contract because of failure to reach agreement as to price or fee, the 
clause at 52.216-25 requires the contractor to proceed with the work and 
provides that the contracting officer may, with the approval of the head 
of the contracting activity, determine a reasonable price or fee in 
accordance with subpart 15.4 and part 31 of the FAR, subject to appeal 
as provided in the Disputes clause.
    (4) The maximum liability of the Government inserted in the clause 
at 52.216-24, Limitation of Government Liability, shall, as approved by 
the official who authorized the NTP, be the estimated amount necessary 
to cover the contractor's requirements for funds to complete the work to 
be performed under the NTP. However, it shall not exceed the estimated 
cost of the definitive contract.
    (c) Are there any financial or monetary limitations on the use of an 
NTP? In addition to the requirements for issuance of an NTP set forth 
elsewhere in this subpart--
    (1) The total definitized dollar value of an individual NTP shall 
not exceed $200,000.00, and
    (2) The applicable Program Office must commit and make available 
appropriate funding for the emergency response action taken under the 
NTP prior to NTP issuance.
    (d) Are there any other procedural requirements for issuance of an 
NTP? An NTP must be issued in writing by the EPA FCS 1102 contracting 
officer or the duly authorized EPA on-scene coordinator with a 
delegation of procurement authority using a Standard Form 33. In 
addition, the EPA FCS 1102 contracting officer or the EPA on-scene 
coordinator awarding the NTP must ensure that the NTP complies with all 
applicable requirements for letter contracts set forth in the FAR and 
the requirements of this section, includes all relevant provisions and 
clauses, and that all actual or potential conflict of interest or other 
contracting issues are identified and resolved prior to NTP issuance. To 
assist the EPA on-scene coordinator and EPA FCS 1102 contracting officer 
in their responsibilities regarding NTP award, an NTP checklist will be 
completed by the EPA FCS 1102 contracting officer or EPA on-scene 
coordinator prior to issuance of the NTP.

[[Page 35]]

    (e) What happens after an NTP is awarded to a contractor? (1) If an 
NTP is issued by a duly authorized EPA on-scene coordinator with a 
delegation of procurement authority, he or she must notify the cognizant 
EPA FCS 1102 contracting officer of the NTP award, and provide the NTP 
checklist to the contracting officer, as soon as possible but in no 
event later than the next working day after NTP issuance.
    (2) Within 5 working days of the EPA on-scene coordinator's award of 
an NTP, the on-scene coordinator shall provide to the cognizant EPA FCS 
1102 contracting officer all NTP documents, materials, and information 
necessary for the contracting officer to definitize the contract, and 
should retain a copy for his/her records. An EPA FCS 1102 contracting 
officer will be responsible for definitization of the NTP consistent 
with the definitization procedures set forth in this subpart. During the 
process of definitizing the NTP, the EPA FCS 1102 contracting officer 
will send the contractor the ``Representations, Certifications, and 
Other Statements of Offerors'' for completion. The contractor will 
complete this information, and any other required information, and 
submit it to the EPA FCS 1102 contracting officer prior to 
definitization of the NTP.
    (f) The CCO, who is authorized by EPAAR 1516.603-3 to make the 
determination to use a letter contract, shall make a class determination 
and findings authorizing EPA FCS 1102 contracting officers and duly 
authorized EPA on-scene coordinators with delegations of procurement 
authority to award NTPs pursuant to the conditions set forth in this 
subpart.

[66 FR 12900, Mar. 1, 2001]



1516.603-3  Limitations.

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

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



PART 1517_SPECIAL CONTRACTING METHODS--Table of Contents



                         Subpart 1517.2_Options

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

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

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



                         Subpart 1517.2_Options



1517.204  Contracts.

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

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



1517.207  Exercise of options.

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

[[Page 36]]

    (c) The Contracting Officer, if the contract so provides, may, 
subject to the conditions in FAR 17.204(d), 32.703-2, and 32.705-1(a), 
exercise an option contingent upon the availability of funds. To 
exercise such an option, the contract must contain the clause in FAR 
52.232-18, Availability of Funds. Under no circumstances shall any 
action be taken which could be construed as creating a legal liability 
on the part of the Government until a formal notice of availability of 
funds in the form of a contract modification has been issued by the 
Contracting Officer.

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



1517.208  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the provision at 48 CFR 
1552.217-70, Evaluation of Contract Options, in solicitations containing 
options.
    (b) The Contracting Officer shall insert the clause at 48 CFR 
1552.217-71, Option to Extend the Term of the Contract--Cost-Type 
Contract, when applicable.
    (c) The Contracting Officer shall insert the clause at 48 CFR 
1552.217-72, Option to Extend the Term of the Contract--Cost-Plus-Award-
Fee Contract, when applicable.
    (d) The Contracting Officer shall insert the clause at 48 CFR 
1552.217-73, Option for Increased Quantity--Cost-Type Contract, when 
applicable.
    (e) The Contracting Officer shall insert the clause at 48 CFR 
1552.217-74, Option for Increased Quantity--Cost-Plus-Award-Fee 
Contract, when applicable.
    (f) The Contracting Officer shall insert the clause at 48 CFR 
1552.217-75, Option to Extend the Effective Period of the Contract--Time 
and Materials or Labor Hour Contract, when applicable.
    (g) The Contracting Officer shall insert the clause at 48 CFR 
1552.217-76, Option to Extend the Effective Period of the Contract--
Indefinite Delivery/Indefinite Quantity Contract, when applicable.
    (h) The Contracting officer shall insert the clause at 48 CFR 
1552.217-77, Option to Extend the Term of the Contract--Fixed Price, 
when applicable.

[82 FR 33019, July 19, 2017]

[[Page 37]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 1519_SMALL BUSINESS PROGRAMS--Table of Contents



                         Subpart 1519.2_Policies

Sec.
1519.201 Policy.
1519.201-71 Director of the Office of Small and Disadvantaged Business 
          Utilization.
1519.201-72 Small business specialists.
1519.202-5 [Reserved]
1519.203 Mentor-prot[eacute]g[eacute].
1519.204 [Reserved]

              Subpart 1519.5_Set-Asides for Small Business

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

Subpart 1519.6 [Reserved]

        Subpart 1519.7_The Small Business Subcontracting Program

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

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

    Source: 82 FR 33019, July 19, 2017, unless otherwise noted.



                         Subpart 1519.2_Policies



1519.201  Policy.

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



1519.201-71  Director of the Office of Small and Disadvantaged
Business Utilization.

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



1519.201-72  Small business specialists.

    (a) Small Business Specialists (SBSs) shall be appointed in writing. 
Regional SBSs will normally be appointed from members of staffs of the 
appointing authority. The appointing authorities for regional SBSs are 
the RAMs. The SBSs for EPA headquarters, Research Triangle Park (RTP), 
and Cincinnati shall be appointed by the OSDBU Director. The SBS is 
administratively responsible directly to the appointing authority and, 
on matters relating to small business programs activities, receives 
technical guidance from the OSDBU Director.
    (b) A copy of each appointment and termination of all SBSs shall be 
forwarded to the OSDBU Director. In addition to performing the duties 
outlined in paragraph (c) of this section that are normally performed in 
the activity to which assigned, the SBS shall perform such additional 
functions as may be prescribed from time to time in furtherance of 
overall small business programs goals. The SBS may be appointed on 
either a full- or part-time basis; however, when appointed on a part-
time basis, small business duties shall take precedence over collateral 
responsibilities.

[[Page 38]]

    (c) The SBS appointed pursuant to paragraph (a) of this section 
shall perform the following duties as appropriate:
    (1) Maintain a program designed to locate capable small business 
sources for current and future acquisitions;
    (2) Coordinate inquiries and requests for advice from small business 
concerns on acquisition matters;
    (3) Review all proposed solicitations in excess of the simplified 
acquisition threshold, assure that small business concerns will be 
afforded an equitable opportunity to compete, and, as appropriate, 
initiate recommendations for small business set-asides, or offers of 
requirements to the Small Business Administration (SBA) for the 8(a) 
program, and complete EPA Form 1900-37, ``Record of Procurement Request 
Review,'' as appropriate;
    (4) Take action to assure the availability of adequate 
specifications and drawings, when necessary, to obtain small business 
participation in an acquisition. When small business concerns cannot be 
given an opportunity on a current acquisition, initiate action, in 
writing, with appropriate technical and contracting personnel to ensure 
that necessary specifications and/or drawings for future acquisitions 
are available;
    (5) Review proposed contracts for possible breakout of items or 
services suitable for acquisition from small business concerns;
    (6) Participate in the evaluation of a prime contractor's small 
business subcontracting programs;
    (7) Assure that adequate records are maintained, and accurate 
reports prepared, concerning small business participation in acquisition 
programs;
    (8) Make available to SBA copies of solicitations when so requested; 
and
    (9) Act as liaison with the appropriate SBA office or representative 
in connection with matters concerning the small business programs 
including set-asides.



1519.202-5  [Reserved]



1519.203  Mentor-prot[eacute]g[eacute].

    (a) The contracting officer shall insert the clause at 48 CFR 
1552.219-70, Mentor-Prot[eacute]g[eacute] Program, in all contracts 
under which the contractor has been approved to participate in the EPA 
Mentor-Prot[eacute]g[eacute] Program.
    (b) The contracting officer shall insert the provision at 48 CFR 
1552.219-71, Procedures for Participation in the EPA Mentor-
Prot[eacute]g[eacute] Program, in all solicitations valued at $500,000 
or more which will be cost-plus-award-fee or cost-plus fixed-fee 
contracts.



1519.204  [Reserved]



              Subpart 1519.5_Set-Asides for Small Business



1519.501  Review of acquisitions.

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



1519.503  Class set-aside for construction.

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

Subpart 1519.6 [Reserved]

[[Page 39]]



        Subpart 1519.7_The Small Business Subcontracting Program



1519.705-2  Determining the need for a subcontract plan.

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



1519.705-4  Reviewing the subcontracting plan.

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



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

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



PART 1520_LABOR SURPLUS AREA CONCERNS--Table of Contents



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

Subpart 1520.1--General [Reserved]

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



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



               Subpart 1522.8_Equal Employment Opportunity

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

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

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

Subpart 1522.14--Employment of the Handicapped [Reserved]

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

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



               Subpart 1522.8_Equal Employment Opportunity



1522.803  Responsibilities.

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

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



1522.804  Affirmative action programs.



1522.804-2  Construction.

    Each contracting office having construction contract responsibility 
shall maintain a list of geographical areas subject to affirmative 
action requirements. The list can be obtained from the Office of Federal 
Contract Compliance Programs, U.S. Department of Labor.

[49 FR 8857, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 78 
FR 46290, July 31, 2013]

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

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

Subpart 1522.14--Employment of the Handicapped [Reserved]

[[Page 40]]



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



       Subpart 1523.3_Hazardous Material and Material Safety Data

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

 Subpart 1523.7_Contracting for Environmentally Preferable Products and 
                                Services

1523.703 Policies and procedures.
1523.703-1 Acquisition of environmentally preferable meeting and 
          conference facilities and services.

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

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



       Subpart 1523.3_Hazardous Material and Material Safety Data



1523.303  Contract clause.



1523.303-70  Protection of human subjects.

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



1523.303-71  Decontamination of Government-furnished property.

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



1523.303-72  Use and care of laboratory animals.

    Contracting officers shall insert the clause at 1552.223-72, Use and 
Care of Laboratory Animals, in all contracts involving the use of 
animals in testing, research or training.

[80 FR 4214, Jan. 27, 2015]



 Subpart 1523.7_Contracting for Environmentally Preferable Products and 
                                Services

    Source: 72 FR 18403, May 1, 2007, unless otherwise noted.



1523.703  Policies and procedures.



1523.703-1  Acquisition of environmentally preferable meeting and 
conference facilities and services.

    (a) Scope. This section establishes the policy and the procedures 
for acquiring environmentally preferable meeting and conference 
facilities and services. For purposes of this section, the term 
``contracting officer'' refers to any EPA employee with purchasing 
authority. For purposes of this section, the terms ``meeting and 
conference facilities'' or ``conference facilities'' refer to any off-
site commercial facility which is purchased for the use of an EPA 
conference or event, whether the purpose of the event is a meeting, 
conference, training session, or other official purpose.
    (b) Conference facilities. EPA conducts government events at 
facilities owned and operated by private, third-party vendors. These 
facilities--
    (1) May provide conference participants with lodging, food and 
beverage, and other on-site event support services.
    (2) Demonstrate they are environmentally preferable by their 
responses to the 17 questions in 1552.223-71(c) highlighting 
environmental performance. These questions address, among other things, 
reducing greenhouse gas (GHG) emissions, the production and disposal of 
solid waste, the use of and exposure to toxic chemicals/materials, and 
the depletion of natural resources including water.
    (c) Policy. Contracting officers shall purchase environmentally 
preferable meeting and conference facilities and services to the 
greatest extent practicable. Environmentally preferable is defined at 
FAR 2.101 and shall be considered in all purchases of meeting and 
conference facilities and services.
    (d) Procedures for micropurchases. The contracting officer shall 
request that potential third party conference facility vendors respond 
to the 17 questions

[[Page 41]]

in 1552.223-71(c) or language substantially the same as these questions, 
in order to evaluate their environmental performance.
    (e) Procedures for purchases of conference facilities exceeding the 
micropurchase threshold. The contracting officer shall request that 
potential third party conference facility vendors respond to the 17 
questions in 1552.223-71(c) or language substantially the same as these 
questions, in order to evaluate their environmental performance. The 
contracting officer shall notify vendors that the basis for award will 
be best value with price and other factors considered. Environmental 
preferability, as determined by evaluating the information submitted in 
response to the questions and specifications at 1552.223-71(c) or 
information submitted in response to substantially similar questions and 
specifications, shall be considered among the other factors. The 
contracting officer shall determine the relative importance of price and 
other factors as appropriate to the acquisition, but in all cases shall 
consider environmental preferability as a significant factor.
    (f) Contractor support for meetings and conferences. A contract, 
order, work assignment or purchasing agreement that includes contractor 
support for meeting and conference planning and logistics must include 
requirements to make use of environmentally preferable meeting and 
conference facilities and services. The contracting officer shall ensure 
language is included in the tasking document work statement that 
requires the contractor to use the provisions at 1552.223-71 or language 
approved by the contracting officer that is substantially the same as 
the provisions, when soliciting quotes or offers for meeting and 
conference services on behalf of the EPA.
    (g) Solicitation provision. The contracting officer shall insert 
provisions or language substantially the same as the provisions at 
1552.223-71 EPA Green Meetings and Conferences, in solicitations for 
meeting and conference services. Contracting officers issuing an oral 
solicitation must also use these provisions, though they may be provided 
to the vendor orally or electronically. Contractors soliciting quotes or 
offers for meeting and conference services on behalf of EPA shall use 
the provisions, or language approved by the contracting officer that is 
substantially the same as the provisions.

[80 FR 4214, Jan. 27, 2015]



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



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



             Subpart 1524.1_Protection of Individual Privacy



1524.104  Solicitation provisions.

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

[49 FR 8858, Mar. 8, 1984]

Subpart 1524.2--Freedom of Information Act [Reserved]



PART 1525_FOREIGN ACQUISITION--Table of Contents



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

[[Page 42]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





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



              Subpart 1527.4_Rights in Data and Copyrights

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

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



              Subpart 1527.4_Rights in Data and Copyrights



1527.404  Basic rights in data clause.

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

[55 FR 48623, Nov. 21, 1990]



1527.409  Solicitation provisions and contract clauses.

    The Contracting Officer shall insert the clause in 1552.227-76 in 
all Superfund solicitations and contracts in excess of the simplified 
acquisition threshold and, as appropriate, in simplified acquisitions 
for Superfund work. The clause may be used in other contracts if 
considered necessary by the Contracting Officer. Contracts for other 
than Superfund work shall include Alternate I in this clause in lieu of 
paragraph (d).

[79 FR 76241, Dec. 22, 2014]



PART 1528_BONDS AND INSURANCE--Table of Contents



    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.



                        Subpart 1528.3_Insurance



1528.301  Insurance liability to third persons.

    Contracting officers shall insert the clause at 1552.228-70, 
Insurance Liability to Third Persons, in cost-reimbursement 
solicitations and contracts, except those for construction and 
architect-engineer services.

    Note: This clause may be used in contracts awarded utilizing 
architect-engineer services such as requirements for Superfund cleanups 
(e.g., response action contracts). The clause does not apply to 
Superfund indemnification for third party pollution liability or 
coverage for commercial pollution liability insurance as prescribed by 
section 119 of CERCLA as amended by SARA.

[65 FR 58923, Oct. 3, 2000. Redesignated and amended at 78 FR 46290, 
July 31, 2013]



PART 1529_TAXES--Table of Contents



    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

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



                  Subpart 1529.3_State and Local Taxes



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

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

[[Page 43]]

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

Subpart 1529.4 [Reserved]



PART 1530_COST ACCOUNTING STANDARDS--Table of Contents



Subpart 1530.3--CAS Contract Requirements [Reserved]



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



Subpart 1531.1--Applicability [Reserved]



PART 1532_CONTRACT FINANCING--Table of Contents



Sec.
1532.003 Simplified acquisition procedures financing.
1532.006 Reduction or suspension of contract payments upon finding of 
          fraud.
1532.006-1 General.
1532.006-2 Definitions.
1532.006-3 Responsibilities.

                         Subpart 1532.1_General

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

            Subpart 1532.2_Commercial Item Purchase Financing

1532.201 Statutory authority.

Subpart 1532.4--Advance Payments [Reserved]

                   Subpart 1532.8_Assignment of Claims

1532.805 Procedure.
1532.805-70 Forms.

                      Subpart 1532.9_Prompt Payment

1532.908 Contract clauses.

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

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



1532.003  Simplified acquisition procedures financing.

    (a) Scope. This subpart provides for authorization of advance and 
interim payments on commercial item orders not exceeding the simplified 
acquisition threshold. Advance payments are payments that are made prior 
to performance. Interim payments are payments that are made during the 
order period according to a payment schedule.
    (b) Procedures for micropurchases. Contracting officers may 
authorize advance and interim payments on orders for commercial items 
only at or below the micropurchase threshold.
    (c) Procedures for purchases exceeding micropurchase threshold. 
Contracting officers must secure approval at one level above the 
contracting officer, on a case-by-case basis, for advance and interim 
payments on orders for commercial items exceeding the micropurchase 
threshold and not exceeding the simplified acquisition threshold. The 
contracting officer shall submit a recommendation for approval of 
financing terms, along with the supporting rationale for the action, to 
one level above the contracting officer. Remote simplified acquisition 
contracting officers (SACO) without one level above contracting officers 
at their locations shall forward recommendations through their OAM 
Advisors to secure one level above approval.
    (d) Supporting rationale. Regardless of dollar value, the 
contracting officer shall document the file with supporting rationale 
demonstrating that the purchase meets the conditions of FAR 32.202-
1(b)(1), (3) and (4).
    (e) Administration. Regardless of dollar value, the contracting 
officer is responsible for ensuring that supplies or services have been 
delivered. The contracting officer shall document the file with evidence 
of receipt of supplies or services throughout the order period as 
appropriate to the acquisition.
    (f) Clause. The contracting officer shall insert the clause at 
1552.232-74, Payments--Simplified Acquisition Procedures Financing, in 
solicitations and orders that will provide simplified acquisition 
procedures financing.

[71 FR 32283, June 5, 2006]

[[Page 44]]



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



1532.006-1  General.

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

[65 FR 37292, June 14, 2000]



1532.006-2  Definitions.

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

[65 FR 37292, June 14, 2000]



1532.006-3  Responsibilities.

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

[65 FR 37292, June 14, 2000]



                         Subpart 1532.1_General



1532.102  Description of contract financing methods.

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

[60 FR 38505, July 27, 1995]



1532.111  Contract clauses.

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



1532.170  Forms.

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

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



            Subpart 1532.2_Commercial Item Purchase Financing



1532.201  Statutory authority.

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

[61 FR 57339, Nov. 6, 1996]

Subpart 1532.4--Advance Payments [Reserved]



                   Subpart 1532.8_Assignment of Claims



1532.805  Procedure.



1532.805-70  Forms.

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

[[Page 45]]

    (c) EPA Form 1900-5, Contractor's Assignment of Refunds, Rebates and 
Credits, at 1553.232-72 must be prepared by the Contractor prior to 
final payment under cost-reimbursement contracts and must accompany the 
Contractor's Release.
    (d) EPA Form 1900-6, Contractor's Release, at 1553.232-73 must be 
submitted by the Contractor prior to final payment under cost-
reimbursement contracts.



                      Subpart 1532.9_Prompt Payment



1532.908  Contract clauses.

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

[61 FR 29317, June 10, 1996, as amended at 81 FR 31528, May 19, 2016]



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



                         Subpart 1533.1_Protests

Sec.
1533.103 Protests to the Agency.

                   Subpart 1533.2_Disputes and Appeals

1533.203 Applicability.

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

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



                         Subpart 1533.1_Protests



1533.103  Protests to the Agency.

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

[64 FR 17110, Apr. 8, 1999]



                   Subpart 1533.2_Disputes and Appeals



1533.203  Applicability.

    The Civilian Board of Contract Appeals (CBCA) will hear appeals from 
final decisions of EPA Contracting Officers issued pursuant to the 
Contracts Disputes Act. The rules and regulations of the CBCA appear in 
48 CFR chapter 61.

[73 FR 1981, Jan. 11, 2008]

[[Page 46]]



             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING





PART 1535_RESEARCH AND DEVELOPMENT CONTRACTING--Table of Contents



Sec.
1535.007 Solicitations.
1535.007-70 Contract clauses.

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



1535.007  Solicitations.

    (a) Contracting officers shall insert the provision at 48 CFR 
1552.235-73, Access to Federal Insecticide, Fungicide, and Rodenticide 
Act Confidential Business Information, in all solicitations when the 
contracting officer has determined that EPA may furnish the contractor 
with confidential business information which EPA had obtained from third 
parties under the Federal Insecticide, Fungicide, and Rodenticide Act (7 
U.S.C. 136 et seq.).
    (b) Contracting officers shall insert the provision at 48 CFR 
1552.235-75, Access to Toxic Substances Control Act Confidential 
Business Information, in all solicitations when the contracting officer 
has determined that EPA may furnish the contractor with confidential 
business information which EPA had obtained from third parties under the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.).
    (c) Contracting officers shall insert the provision at 48 CFR 
1552.235-81, Institutional Oversight of Life Sciences Dual Use Research 
of Concern-Representation, when notified in the Advance Procurement Plan 
(APP) or by an EPA funding/requesting office, in accordance with the 
Institutional Oversight of Life Sciences Dual Use Research of Concern 
(iDURC) EPA Order 1000.19, Policy and Procedures for Managing Dual Use 
Research of Concern, in solicitations that will result in a contract 
under which EPA funding will be used by the recipient to conduct or 
sponsor ``life sciences research''.

[82 FR 33021, July 19, 2017]



1535.007-70  Contract clauses.

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

[[Page 47]]

the contractor with confidential business information obtained from 
third parties under the Toxic Substances Control Act (15 U.S.C. 2601 et 
seq.). EPA regulations on confidentiality of business information in 40 
CFR part 2, subpart B require that the contractor agree to the clause 
entitled ``Treatment of Confidential Business Information'' before any 
confidential business information may be furnished to the contractor.
    (d) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-77, Data Security for Federal Insecticide, Fungicide, and 
Rodenticide Act, Confidential Business Information, when the contract 
involves access to confidential business information related to the 
Federal Insecticide, Fungicide, and Rodenticide Act, and the Treatment 
of Confidential Business Information clause (48 CFR 1552.235-71) and the 
Screening Business Information for Claims of Confidentiality clause (48 
CFR 1552.235-70) are included.
    (e) The Contracting Officer shall insert the clause at 48 CFR 
1552.235-78, Data Security for Toxic Substances Control Act Confidential 
Business Information, when the contract involves access to confidential 
business information related to the Toxic Substances Control Act, and 
the Treatment of Confidential Business Information clause (48 CFR 
1552.235-76) and Screening Business Information for Claims of 
Confidentiality clause (48 CFR 1552.235-70) are included.
    (f) Contracting Officers shall insert the clause 48 CFR 1552.235-79, 
Release of Contractor Confidential Business Information, in all 
solicitations and contracts in order to authorize the Agency to release 
confidential business information under certain circumstances.
    (g) Contracting officers shall insert the clause at 1552.235-80, 
Access to Confidential Business Information (CBI), in all types of 
contracts when it is possible that it will be necessary for the 
contractor to have access to CBI during the performance of tasks 
required under the contract.
    (h) Contracting officers shall insert 48 CFR 1552.235-82--
``Institutional Oversight of Life Sciences Dual Use Research of 
Concern'' into all solicitations containing 48 CFR 1552.235-81 and in 
existing contracts that are bilaterally modified at the request of an 
EPA funding/requesting office in accordance with EPA Order 1000.19.

[49 FR 8862, Mar. 8, 1984; 49 FR 24734, June 15, 1984, as amended at 61 
FR 14265, Apr. 1, 1996; 61 FR 57339, Nov. 6, 1996; 65 FR 58923, Oct. 3, 
2000; 81 FR 24499, Apr. 26, 2016]



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



     Subpart 1536.2_Special Aspects of Contracting for Construction

Sec.
1536.209 Construction contracts with architect-engineer firms.

                     Subpart 1536.5_Contract Clauses

1536.521 Specifications and drawings for construction.

               Subpart 1536.6_Architect-Engineer Services

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

    Authority: 5 U.S.C. 301 and 41 U.S.C. 1707.

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



     Subpart 1536.2_Special Aspects of Contracting for Construction



1536.209  Construction contracts with architect-engineer firms.

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

[[Page 48]]

cost to the Government, and the policy of the Agency to promote the use 
of innovative technology.

[55 FR 49283, Nov. 27, 1990, as amended at 59 FR 18977, Apr. 21, 1994; 
81 FR 41237, June 24, 2016]



                     Subpart 1536.5_Contract Clauses



1536.521  Specifications and drawings for construction.

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

[49 FR 8863, Mar. 8, 1984, as amended at 81 FR 41237, June 24, 2016]



               Subpart 1536.6_Architect-Engineer Services



1536.602  Selection of firms for architect-engineer contracts.



1536.602-2  Establishment of evaluation boards.

    (a) The Environmental Protection Agency Architect-Engineer 
Evaluation Board is established as a central permanent Board located at 
Headquarters EPA under authority delegated to the Director, Office of 
Acquisition Management, which may be re-delegated.
    (b) The Service Center Manager (SCM) is delegated the authority to 
appoint either one or two additional voting members as may be 
appropriate for a particular project.
    (c) In the event of an emergency or extended absence, a member may 
designate, in writing, with the concurrence of the Chairperson, an 
alternate experienced in architecture, engineering, or construction to 
serve in his/her absence.
    (d) The duties of the advisory member shall include, but not be 
limited to, the following:
    (1) Assuring that the criteria set forth in the public notice are 
applied in the evaluation process; and
    (2) Assuring that actions taken during the evaluation process do not 
compromise subsequent procurement actions.

[59 FR 18977, Apr. 21, 1994, as amended at 67 FR 5052, Feb. 4, 2002; 70 
FR 61569, Oct. 25, 2005]



PART 1537_SERVICE CONTRACTING--Table of Contents



    Authority: 5 U.S.C. 301 and 41 U.S.C. 1707.

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



                Subpart 1537.1_Service Contracts_General



1537.110  Solicitation provisions and contract clauses.

    The following clauses are prescribed for service contracts. They may 
also be used in research and development contracts when applicable (see 
1535.007-70).
    (a) The Contracting Officer shall insert the clause at 1552.237-70, 
Contract Publication Review Procedures, in solicitations and contracts 
when the products of the contract are subject to contract publication 
review.
    (b) The Contracting Officer shall insert a clause substantially the 
same as the clause at 1552.237-71, Technical Direction, in solicitations 
and contracts where the Contracting Officer intends to delegate 
authority to issue technical direction to the Contracting Officer's 
Representative(s).
    (c) The Contracting Officer shall insert the clause at 1552.237-72, 
Key Personnel, in solicitations and contracts when it is necessary for 
contract performance to identify Contractor key personnel. Contracting 
Officers have the flexibility to identify the required number of days of 
key personnel commitment during the early stages of contractor 
performance. The length of time will be based on the requirements of 
individual acquisitions when continued assignment is essential to the 
successful implementation of the program's mission. Therefore, 
Contracting Officers may use a clause substantially the same as in 48 
CFR 1552.237-72, regarding substitution of key personnel. Contracting 
Officers may include a different number of days in excess of the

[[Page 49]]

ninety (90) days included in this clause, if approved at one level above 
the Contracting Officer.
    (d) The Contracting Officer shall insert the clause at 1552.237-74, 
Publicity, in solicitations and contracts pertaining to the removal or 
remedial activities under the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA).
    (e) The Contracting Officer shall insert the clause at 1552.237-75, 
Paperwork Reduction Act, in solicitations and contracts requiring the 
collection of identical information from (10) or more public 
respondents.
    (f) To ensure that Agency contracts are administered so as to avoid 
creating an improper employer-employee relationship, contracting 
officers shall insert the contract clause at 1552.237-76, ``Government-
Contractor Relations'', in all solicitations and contracts for non-
personal services that exceed the simplified acquisition threshold.

[49 FR 8864, Mar. 8, 1984, as amended at 64 FR 30444, June 8, 1999; 70 
FR 61569, Oct. 25, 2005; 74 FR 37175, July 28, 2009; 81 FR 41237, June 
24, 2016]

[[Page 50]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT





PART 1542_CONTRACT ADMINISTRATION--Table of Contents



                   Subpart 1542.7_Indirect Cost Rates

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

         Subpart 1542.12_Novation and Change of Name Agreements

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

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

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



                   Subpart 1542.7_Indirect Cost Rates



1542.703-2  Certificate of indirect costs.

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

[61 FR 57339, Nov. 6, 1996]



1542.705  Final indirect cost rates.

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

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



1542.705-70  Solicitation and contract clause.

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

[62 FR 33573, June 20, 1997]



         Subpart 1542.12_Novation and Change of Name Agreements



1542.1200  Scope of subpart.

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



1542.1202  Responsibility for executing agreements.

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

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



1542.1203  Processing agreements.

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

[[Page 51]]

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

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



PART 1545_GOVERNMENT PROPERTY--Table of Contents



                         Subpart 1545.1_General

Sec.
1545.107 Government property clauses.

       Subpart 1545.3_Providing Government Property to Contractors

1545.309 Providing Government production and research property under 
          special restrictions.

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

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



                         Subpart 1545.1_General



1545.107  Government property clauses.

    (a) The Contracting Officer shall insert the contract clause at 
1552.245-70:
    (1) When it is anticipated that a Contractor will use Government-
furnished or Contractor-acquired property in the cleanup of hazardous 
material as defined in Federal Standard No. 313, or, the toxic chemicals 
listed 40 CFR 372.65, in the environment.
    (2) In all cost-type solicitations and contracts regardless of 
whether Government Property is initially provided, and in all fixed-
price solicitations and contracts whenever Government furnished property 
is provided.
    (b) The Contracting Officer shall insert the contract clause at 
1552.245-71, Government-Furnished Data, in any contract in which the 
Government is to furnish data to the Contractor. The data to be provided 
shall be identified in the clause.

[74 FR 47110, Sept. 15, 2009]



       Subpart 1545.3_Providing Government Property to Contractors



1545.309  Providing Government production and research property under
special restrictions.

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



PART 1546_QUALITY ASSURANCE--Table of Contents



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



                        Subpart 1546.7_Warranties



1546.704  Authority for use of warranties.

    The Contracting Officer shall ensure that the use of a warranty 
clause in a

[[Page 52]]

contract has the concurrence of the Project Officer.

[49 FR 8867, Mar. 8, 1984]

                 PART 1548_VALUE ENGINEERING [RESERVED]

[[Page 53]]



                     SUBCHAPTER H_CLAUSES AND FORMS





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



             Subpart 1552.2_Texts of Provisions and Clauses

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

[[Page 54]]

          Confidential Business Information (DEC 1997).
1552.235-78 Data Security for Toxic Substances Control Act Confidential 
          Business Information (DEC 1997).
1552.235-79 Release of contractor confidential business information (APR 
          1996).
1552.235-80 Access to confidential business information.
1552.235-81 Institutional oversight of life sciences dual use research 
          of concern--Representation.
1552.235-82 Institutional oversight of life sciences dual use research 
          of concern.
1552.236-70 Samples and certificates.
1552.237-70 Contract publication review procedure.
1552.237-71 Technical direction.
1552.237-72 Key personnel.
1552.237-73 [Reserved]
1552.237-74 Publicity.
1552.237-75 Paperwork Reduction Act.
1552.237-76 Government-Contractor Relations.
1552.239-70 Rehabilitation Act notice.
1552.239-103 Acquisition of Energy Star compliant microcomputers, 
          including personal computers, monitors and printers.
1552.242-70 Indirect costs.
1552.242-72 Financial administrative contracting officer.
1552.245-70 Government property.
1552.245-73 Government property.

    Authority: 5 U.S.C. 301 and 41 U.S.C. 418b.

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



             Subpart 1552.2_Texts of Provisions and Clauses



1552.203-70  Current/former agency employee involvement certification.

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

    Current/Former Agency Employee Involvement Certification Jul 2016

    The offeror (quoter) hereby certifies that:
    (a) He/She is [ ] is not [ ] a former employee or special government 
employee whose EPA employment terminated within one year prior to 
submission of this offer (quote).
    (b) He/She does [ ] does not [ ] employ or propose to employ a 
current/former employee or special government employee whose EPA 
employment terminated within one year prior to submission of this offer 
(quote) and who has been or will be involved, directly or indirectly, in 
developing or negotiating this offer (quote) for the offeror (quoter), 
or in the management, administration or performance of any contract 
resulting from this offer (quote).
    (c) He/She does [ ] does not [ ] employ or propose to employ as a 
consultant or subcontractor under any contract resulting from this offer 
(quote) a current/former employee or special government employee whose 
EPA employment terminated within one year prior to submission of this 
offer (quote).
    (d) A former employee or special government employee whose EPA 
employment terminated within one year prior to submission of this offer 
(quote) or such former employee's spouse or minor child does [ ] does 
not [ ] own or substantially own or control the offeror's (quoter's) 
firm.
    (e) See EPAAR part 1503.600-71 for definitions of the terms 
``employee'' and ``special government employee.''

                           (End of provision)

[81 FR 31180, May 18, 2016]



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

    As prescribed in 1503.1004, insert the following clause in all 
contracts valued at $1,000,000 or more including all contract options.

   Display of EPA Office of Inspector General Hotline Poster Jul 2016

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

                             (End of clause)

[81 FR 31180, May 18, 2016]



1552.204-70  [Reserved]



1552.208-70  Printing.

    As prescribed in 1508.870, insert the following clause:

[[Page 55]]

                           Printing (SEP 2012)

    (a) Definitions. ``Printing'' is the process of composition, plate 
making, presswork, binding and microform; or the end items produced by 
such processes and equipment. Printing services include newsletter 
production and periodicals which are prohibited under EPA contracts.
    ``Composition'' applies to the setting of type by hot-metal casting, 
photo typesetting, or electronic character generating devices for the 
purpose of producing camera copy, negatives, a plate or image to be used 
in the production of printing or microform.
    ``Camera copy'' (or ``camera-ready copy'') is a final document 
suitable for printing/duplication.
    ``Desktop Publishing'' is a method of composition using computers 
with the final output or generation of a camera copy done by a color 
inkjet or color laser printer. This is not considered ``printing.'' 
However, if the output from desktop publishing is being sent to a 
typesetting device (i.e., Linotronic) with camera copy being produced in 
either paper or negative format, these services are considered 
``printing.''
    ``Microform'' is any product produced in a miniaturized image 
format, for mass or general distribution and as a substitute for 
conventionally printed material. Microform services are classified as 
printing services and include microfiche and microfilm. The contractor 
may make up to two sets of microform files for archival purposes at the 
end of the contract period of performance.
    ``Duplication'' means the making of copies on photocopy machines 
employing electrostatic, thermal, or other processes without using an 
intermediary such as a negative or plate.
    ``Requirement'' means an individual photocopying task. (There may be 
multiple requirements under a Work Assignment or Delivery Order. Each 
requirement would be subject to the duplication limitation of 5,000 
copies of one page or 25,000 copies of multiple pages in the aggregate 
per requirement).
    ``Incidental'' means a draft and/or proofed document (not a final 
document) that is not prohibited from printing under EPA contracts.
    (b) Prohibition. (1) The contractor shall not engage in, nor 
subcontract for, any printing in connection with the performance of work 
under this contract. Duplication of more than 5,000 copies of one page 
or more than 25,000 copies of multiple pages in the aggregate per 
requirement constitutes printing. The intent of the printing limitation 
is to eliminate duplication of final documents.
    (2) In compliance with EPA Order 2200.4a, EPA Publication Review 
Procedure, the Office of Communications, Education, and Media Relations 
is responsible for the review of materials generated under a contract 
published or issued by the Agency under a contract intended for release 
to the public.
    (c) Affirmative Requirements. (1) Unless otherwise directed by the 
contracting officer, the contractor shall use double-sided copying to 
produce any progress report, draft report or final report.
    (2) Unless otherwise directed by the contracting officer, the 
contractor shall use recycled paper for reports delivered to the Agency 
which meet the minimum content standards for paper and paper products as 
set forth in EPA's Web site for the Comprehensive Procurement Guidelines 
at: http://www.epa.gov/cpg/.
    (d) Permitted Contractor Activities. (1) The prohibitions contained 
in paragraph (b) do not preclude writing, editing, or preparing 
manuscript copy, or preparing related illustrative material to a final 
document (camera-ready copy) using desktop publishing.
    (2) The contractor may perform a requirement involving the 
duplication of less than 5,000 copies of only one page, or less than 
25,000 copies of multiple pages in the aggregate, using one color 
(black), such pages shall not exceed the maximum image size of 10\3/4\ 
by 14\1/4\ inches, or 11 by 17 paper stock. Duplication services below 
these thresholds are not considered printing. If performance of the 
contract will require duplication in excess of these thresholds, 
contractors must immediately notify the contracting officer in writing 
and a waiver must be obtained. Only the Joint Committee on Printing has 
the authority to grant waivers to the printing requirements. All Agency 
waiver requests must be coordinated with EPA's Headquarters Printing 
Management Team, Facilities and Services Division, and with the Office 
of General Counsel. Duplication services of ``incidentals'' in excess of 
the thresholds are allowable.
    (3) The contractor may perform a requirement involving the multi-
color duplication of no more than 100 pages in the aggregate using color 
copier technology, such pages shall not exceed the maximum image size of 
10\3/4\ by 14\1/4\ inches, or 11 by 17 paper stock. Duplication services 
below these thresholds are not considered printing. If performance of 
the contract will require duplication in excess of these limits, 
contractors must immediately notify the contracting officer in writing 
and a waiver must be obtained. Only the Joint Committee on Printing has 
the authority to grant waivers to the printing requirements. All Agency 
waiver requests must be coordinated with EPA's Headquarters Printing 
Management Team, Facilities and Services Division, and with the Office 
of General Counsel.
    (4) The contractor may perform the duplication of no more than a 
total of 500 units of an electronic information storage device

[[Page 56]]

(e.g., CD-ROMs, DVDs, thumb drives \1\) (including labeling and 
packaging) per work assignment or task order/delivery order per contract 
year. Duplication services below these thresholds are not considered 
printing. If performance of the contract will require duplication in 
excess of these thresholds, contractors must immediately notify the 
contracting officer in writing and a waiver must be obtained. Only the 
Joint Committee on Printing has the authority to grant waivers to the 
printing requirements. All Agency waiver requests must be coordinated 
with EPA's Headquarters Printing Management Team, Facilities and 
Services Division, and with the Office of General Counsel.
---------------------------------------------------------------------------

    \1\ Pursuant to the July 2008 guidance Promotional Communications 
for EPA, a thumb drive can be used as a promotional item, but it also 
must be an information medium in itself. Namely, it must have 
substantive EPA information already loaded into the drive. Due to its 
intrinsic material value, it may not be used simply or primarily to 
display an EPA message on the exterior of the drive.
---------------------------------------------------------------------------

    (e) Violations. The contractor may not engage in, nor subcontract 
for, any printing in connection with the performance of work under the 
contract. The cost of any printing services in violation of this clause 
will be disallowed, or not accepted by the Government.
    (f) Flowdown Clause. The contractor shall include in each 
subcontract which may involve a requirement for any printing/
duplicating/copying a provision substantially the same as this clause.

                             (End of clause)

[78 FR 22797, Apr. 17, 2013]



1552.209-70  Organizational conflict of interest notification.

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

       Organizational Conflict of Interest Notification (APR 1984)

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

                           (End of provision)

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



1552.209-71  Organizational conflicts of interest.

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

             Organizational Conflicts of Interest (MAY 1994)

    (a) The Contractor warrants that, to the best of the Contractor's 
knowledge and belief, there are no relevant facts or circumstances which 
could give rise to an organizational conflict of interest, as defined in 
FAR subpart 9.5, or that the Contractor has disclosed all such relevant 
information.
    (b) Prior to commencement of any work, the Contractor agrees to 
notify the Contracting Officer immediately that, to the best of its 
knowledge and belief, no actual or potential conflict of interest exists 
or to identify to the Contracting Officer any actual or potential 
conflict of interest the firm may have. In emergency situations, 
however, work may begin but notification shall be made within five (5) 
working days.
    (c) The Contractor agrees that if an actual or potential 
organizational conflict of interest is identified during performance, 
the Contractor will immediately make a full disclosure in writing to the 
Contracting Officer. This disclosure shall include a description of 
actions which the Contractor has taken or

[[Page 57]]

proposes to take, after consultation with the Contracting Officer, to 
avoid, mitigate, or neutralize the actual or potential conflict of 
interest. The Contractor shall continue performance until notified by 
the Contracting Officer of any contrary action to be taken.
    (d) Remedies--The EPA may terminate this contract for convenience, 
in whole or in part, if it deems such termination necessary to avoid an 
organizational conflict of interest. If the Contractor was aware of a 
potential organizational conflict of interest prior to award or 
discovered an actual or potential conflict after award and did not 
disclose it or misprepresented relevant information to the Contracting 
officer, the Government may terminate the contract for default, debar 
the Contractor from Government contracting, or pursue such other 
remedies as may be permitted by law or this contract.
    (e) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph (e), unless otherwise authorized by the 
Contracting Officer.

                             (End of clause)

    Alternate I (SEP 1998). Contracts for other than Superfund work 
shall include Alternate I in this clause in lieu of paragraph (e).

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

[49 FR 8867, Mar. 8, 1994, as amended at 59 FR 18620, Apr. 19, 1994; 61 
FR 57339, Nov. 6, 1996; 63 FR 46899, Sept. 3, 1998; 82 FR 33021, July 
19, 2017]



1552.209-72  Organizational conflict of interest certification.

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

      Organizational Conflict of Interest Certification (APR 1984)

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

                           (End of provision)

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



1552.209-73  Notification of conflicts of interest regarding personnel.

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

  Notification of Conflicts of Interest Regarding Personnel (MAY 1994)

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

[[Page 58]]

    Alternate I (JAN 2015). Contracts for other than Superfund work 
shall include Alternate I in this clause in lieu of paragraph (d).
    (d) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder provisions which shall conform 
substantially to the language of this clause, including this paragraph 
(d), unless otherwise authorized by the Contracting Officer.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994, as amended at 79 FR 76241, Dec. 22, 2014; 
82 FR 33021, July 19, 2017]



1552.209-74  Limitation of future contracting.

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

            Limitation of Future Contracting (RAC) (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) The Contractor will be ineligible to enter into a contract for 
remedial action projects for which the Contractor has developed the 
statement of work or the solicitation package.
    (c) The following applies when work is performed under this 
contract: Unless prior written approval is obtained from the cognizant 
EPA Contracting Officer, the Contractor, during the life of the work 
assignment, task order, or tasking document and for a period of five (5) 
years after the completion of the work assignment, task order, or 
tasking document, agrees not to enter into a contract with or to 
represent any party, other than EPA, with respect to: (1) Any work 
relating to CERCLA activities which pertain to a site where the 
Contractor previously performed work for EPA under this contract; or (2) 
any work that may jeopardize CERCLA enforcement actions which pertain to 
a site where the Contractor previously performed work for the EPA under 
this contract.
    (d) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (e) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (f) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (g) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (g) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (h) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (i) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

[[Page 59]]

                             (End of clause)

     Limitation of Future Contracting Alternate I (ERRS) (APR 2004)

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

[[Page 60]]

a request for review or a request for reconsideration must be submitted 
to the appropriate level within 30 calendar days after receipt of the 
initial adverse determination.

                             (End of clause)

    Limitation of Future Contracting Alternate II (Start) (APR 2004)

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

[[Page 61]]

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

                             (End of clause)

    Limitation of Future Contracting Alternate III (ESAT) (APR 2004)

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

                             (End of clause)

     LIMITATION OF FUTURE CONTRACTING, ALTERNATE IV (ESS) (SEP 2013)

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

[[Page 62]]

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

                             (End of clause)

  Limitation of Future Contracting, Alternate V (Headquarters Support) 
                               (APR 2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime Contractor or subcontractor under an ensuing EPA 
contract.
    (c) The Contractor, during the life of this contract, will be 
ineligible to enter into a contract with EPA to perform response action 
work (e.g., Response Action Contract (RAC), Emergency and Rapid Response 
Services (ERRS), Superfund Technical Assistance and Removal Team 
(START), and Enforcement Support Services (ESS) contracts), unless 
otherwise authorized by the Contracting Officer.
    (d) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.

[[Page 63]]

    (e) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.
    (f) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (f) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (g) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (h) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

  Limitation of Future Contracting; Alternate VI (Site Specific) (APR 
                                  2004)

    (a) The parties to this contract agree that the Contractor will be 
restricted in its future contracting in the manner described below. 
Except as specifically provided in this clause, the Contractor shall be 
free to compete for contracts on an equal basis with other companies.
    (b) If the Contractor, under the terms of this contract, or through 
the performance of work pursuant to this contract, is required to 
develop specifications or statements of work and such specifications or 
statements of work are incorporated into an EPA solicitation, the 
Contractor shall be ineligible to perform the work described in that 
solicitation as a prime contractor or subcontractor under an ensuing EPA 
contract.
    (c) Unless prior written approval is obtained from the cognizant EPA 
Contracting Officer, the Contractor, during the life of the contract and 
for a period of five (5) years after the expiration of the contract 
agrees not to enter into a contract with or to represent any party, 
other than EPA, with respect to: (1) any work relating to CERCLA 
activities which pertain to the site where the Contractor previously 
performed work for EPA under this contract; or (2) any work that may 
jeopardize CERCLA enforcement actions which pertain to the site where 
the Contractor previously performed work for the EPA under this 
contract.
    (d) During the life of this contract, including any options, the 
Contractor agrees that unless otherwise authorized by the Contracting 
Officer:
    (1) It will not provide any Superfund Technical Assistance and 
Removal Team (START) type activities (e.g., START contracts) to EPA on 
the site either as a prime contractor, subcontractor, or consultant.
    (2) It will be ineligible for award of contracts pertaining to this 
site which result from a CERCLA administrative order, a CERCLA or RCRA 
consent decree or a court order.
    (e) The Contractor and any subcontractors, during the life of this 
contract, shall be ineligible to enter into an EPA contract or a 
subcontract under an EPA contract, which supports EPA's performance of 
Superfund Headquarters policy work including support for the analysis 
and development of regulations, policies, or guidance that govern, 
affect, or relate to the conduct of response action activities, unless 
otherwise authorized by the Contracting Officer. Examples of such 
contracts include, but are not limited to, Superfund Management and 
Analytical support contracts, and Superfund Technical and Analytical 
support contracts.
    (f) The Contractor agrees in advance that if any bids/proposals are 
submitted for any work that would require written approval of the 
Contracting Officer prior to entering into a contract subject to the 
restrictions of this clause, then the bids/proposals are submitted at 
the Contractor's own risk. Therefore, no claim shall be made against the 
Government to recover bid/proposal costs as a direct cost whether the 
request for authorization to enter into the contract is denied or 
approved.
    (g) To the extent that the work under this contract requires access 
to proprietary or confidential business or financial data of other 
companies, and as long as such data remains proprietary or confidential, 
the Contractor shall protect such data from unauthorized use and 
disclosure.

[[Page 64]]

    (h) Contractors who are performing nondiscretionary technical or 
engineering services, including construction work, may request a waiver 
from or modification to this clause by submitting a written request to 
the Contracting Officer. The Contracting Officer shall make the 
determination regarding whether to waive or modify the clause on a case-
by-case basis.
    (i) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for nondiscretionary technical or engineering 
services, including treatability studies, well drilling, fence erecting, 
plumbing, utility hookups, security guard services, or electrical 
services, provisions which shall conform substantially to the language 
of this clause, including this paragraph (i) unless otherwise authorized 
by the Contracting Officer. The Contractor may request in writing that 
the Contracting Officer exempt from this clause a particular subcontract 
or consultant agreement for nondiscretionary technical or engineering 
services not specifically listed above, including laboratory analysis. 
The Contracting Officer will review and evaluate each request on a case-
by-case basis before approving or disapproving the request.
    (j) If the Contractor seeks an expedited decision regarding its 
initial future contracting request, the Contractor may submit its 
request to both the Contracting Officer and the next administrative 
level within the Contracting Officer's organization.
    (k) A review process available to the Contractor when an adverse 
determination is received shall consist of a request for reconsideration 
to the Contracting Officer or a request for review submitted to the next 
administrative level within the Contracting Officer's organization. An 
adverse determination resulting from a request for reconsideration by 
the Contracting Officer will not preclude the Contractor from requesting 
a review by the next administrative level. Either a request for review 
or a request for reconsideration must be submitted to the appropriate 
level within 30 calendar days after receipt of the initial adverse 
determination.

                             (End of clause)

[59 FR 18620, Apr. 19, 1994, as amended at 62 FR 5348, Feb. 5, 1997; 63 
FR 692, Jan. 7, 1998; 65 FR 37292, June 14, 2000; 70 FR 61570, Oct. 25, 
2005; 78 FR 46290, July 31, 2013]



1552.209-75  Annual certification.

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

                     Annual Certification (MAY 1994)

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

                             (End of clause)

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



1552.210-71  [Reserved]



1552.210-73--1552.210-74  [Reserved]



1552.211-70  Reports of work.

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

                       Reports of Work (OCT 2000)

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

                             (End of clause)

    Alternate I (OCT 2000). The Contractor shall prepare and deliver the 
below

[[Page 65]]

listed reports, including plans, evaluations, studies, analyses and 
manuals to the designated addressees. Each report shall cite the 
contract number, identify the U.S. Environmental Protection Agency as 
the sponsoring agency, and identify the name of the Contractor preparing 
the report.

    The OMB clearance number for progress reports delivered under this 
contract is 2030-0005. Required reports are:

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

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 61 FR 57339, Nov. 6, 1996, as 
amended at 62 FR 33573, June 20, 1997; 63 FR 10549, Mar. 4, 1998; 63 FR 
46899, Sept. 3, 1998; 65 FR 58924, Oct. 3, 2000; 66 FR 28674, May 24, 
2001; 78 FR 46290, July 31, 2013]



1552.211-72  Monthly progress report.

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

                   Monthly Progress Report (JUN 1996)

    (a) The Contractor shall furnish __ copies of the combined monthly 
technical and financial progress report stating the progress made, 
including the percentage of the project completed, and a description of 
the work accomplished to support the cost. If the work is ordered using 
work assignments or delivery orders, include the estimated percentage of 
task completed during the reporting period for each work assignment or 
delivery order.
    (b) Specific discussions shall include difficulties encountered and 
remedial action taken during the reporting period, and anticipated 
activity with a schedule of deliverables for the subsequent reporting 
period.
    (c) The Contractor shall provide a list of outstanding actions 
awaiting Contracting Officer authorization, noted with the corresponding 
work assignment, such as subcontractor consents, overtime approvals, and 
work plan approvals.
    (d) The report shall specify financial status at the contract level 
as follows:
    (1) For the current reporting period, display the amount claimed.
    (2) For the cumulative period and the cumulative contract life 
display: the amount obligated, amount originally invoiced, amount paid, 
amount suspended, amount disallowed, and remaining approved amount. The 
remaining approved amount is defined as the total obligated amount, less 
the total amount originally invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the numbers of 
hours worked for the reporting period.
    (ii) For the current reporting period display the expended direct 
labor hours (by EPA contract labor category), and the total loaded 
direct labor costs.
    (iii) For the cumulative contract period display: The negotiated and 
expended direct labor hours (by EPA labor category) and the total loaded 
direct labor costs.
    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (4) Display the current dollar ceilings in the contract, net amount 
invoiced, and remaining amounts for the following categories: Direct 
labor hours, total estimated cost, award fee pool (if applicable), 
subcontracts by individual subcontractor, travel, program management, 
and Other Direct Costs (ODCs).
    (5) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the 
contract.
    (6) Average total cost per labor hour. For the current contract 
period, compare the actual cost per hour to date with the average total 
cost per hour of the approved work plans.
    (e) The report shall specify financial status at the work assignment 
or delivery order level as follows:
    (1) For the current period, display the amount claimed.
    (2) For the cumulative period display: amount shown on workplan, or 
latest work assignment/delivery order amendment amount (whichever is 
later); amount currently claimed; amount paid; amount suspended; amount 
disallowed; and remaining approved amount. The remaining approved amount 
is defined as: the workplan amount or latest work assignment or delivery 
order amount (whichever is later), less total amounts originally 
invoiced, plus total amount disallowed.
    (3) Labor hours.
    (i) A list of employees, their labor categories, and the number of 
hours worked for the reporting period.
    (ii) For the current reporting period display the expended direct 
labor hours (by EPA contract labor category), and the total loaded 
direct labor hours.
    (iii) For the cumulative reporting period and the cumulative 
contract period display: The negotiated and expended direct labor hours 
(by EPA labor hour category) and the loaded direct labor rate.

[[Page 66]]

    (iv) Display the estimated direct labor hours and costs to be 
expended during the next reporting period.
    (v) Display the estimates of remaining direct labor hours and costs 
required to complete the work assignment or delivery order.
    (4) Unbilled allowable costs. Display the total costs incurred but 
unbilled for the current reporting period and cumulative for the work 
assignment.
    (5) Average total cost labor hour. For the current contract period, 
compare the actual total cost per hour to date with the average total 
cost per hour of the approved workplans.
    (6) A list of deliverables for each work assignment or delivery 
order during the reporting period.
    (f) This submission does not change the notification requirements of 
the ``Limitation of Cost'' or ``Limitation of Funds'' clauses requiring 
separate written notice to the Contracting Officer.
    (g) The reports shall be submitted to the following addresses on or 
before the __ of each month following the first complete reporting 
period of the contract. See EPAAR 1552.232-70, Submission of Invoices, 
paragraph (e), for details on the timing of submittals. Distribute 
reports as follows:

------------------------------------------------------------------------
                                                     Address (email and/
        No. of copies               Addressee           or shipping)
------------------------------------------------------------------------
                              Contracting
                               Officer's
                               Representative.
                              Contracting Officer.
------------------------------------------------------------------------

                             (End of clause)

[61 FR 29317, June 10, 1996. Redesignated at 61 FR 57339, Nov. 6, 1996, 
as amended at 62 FR 33573, June 20, 1997; 78 FR 46290, July 31, 2013; 80 
FR 29986, May 26, 2015]



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

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

         Level of Effort--Cost-Reimbursement Contract (MAY 2016)

    (a) The Contractor shall perform all work and provide all required 
reports within the level of effort specified below. The Contractor shall 
provide up to ____ direct labor hours for the base period. The 
Government's best estimate of the level of effort to fulfill these 
requirements is provided for advisory and estimating purposes. The 
Government is only obligated to pay for direct labor hours ordered and 
corresponding fixed fee for labor hours completed.
    (b) Direct labor includes personnel such as engineers, scientists, 
draftsmen, technicians, statisticians, and programmers, and not support 
personnel such as company management or data entry/word processing/
accounting personnel even though such support personnel are normally 
treated as direct labor by the Contractor. The level of effort specified 
in paragraph (a) of this section includes Contractor, subcontractor, and 
consultant non-support labor hours.
    (c) If the Contractor provides less than 90 percent of the level of 
effort specified for the base period or any optional period exercised, 
an equitable downward adjustment of the fixed fee, if any, for that 
period will be made. The downward adjustment will reduce the fixed fee 
by the percentage by which the total expended level of effort is less 
than 100% of that specified in paragraph (a). (For instance, if a 
hypothetical base-period LOE of 100,000 hours is being reduced to 
70,000, the fixed fee shall also be reduced by the same 30%. Using a 
corresponding hypothetical base-period fixed fee pool of $300,000, the 
reduced fixed-fee amount is calculated as: $300,000 x (70,000 hours/
100,000 hours) = $210,000.)
    (d) The Government may require the Contractor to provide additional 
effort up to 110 percent of the level of effort for any period until the 
estimated cost for that period has been reached. However, this 
additional effort shall not result in any increase in the fixed fee, if 
any.
    (e) If this is a cost-plus-incentive-fee (CPIF) contract, the term 
``fee'' in paragraphs (c) and (d) of this section means ``base fee and 
incentive fee.'' If this is a cost-plus-award-fee (CPAF) contract, the 
term ``fee'' in paragraphs (c) and (d) means ``base fee and award fee.''
    (f) If the level of effort specified to be ordered during a given 
base or option period is not ordered during that period, that level of 
effort may not be accumulated and ordered during a subsequent period.
    (g) These terms and conditions do not supersede the requirements of 
either the ``Limitation of Cost'' or ``Limitation of Funds'' clauses.

[[Page 67]]

                             (End of clause)

[81 FR 31866, May 20, 2016]



1552.211-74  Work assignments.

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

                       Work Assignments (DEC 2014)

    (a) The contractor shall perform work under this contract as 
specified in written work assignments issued by the Contracting Officer.
    (b) Each work assignment may include (1) a numerical designation, 
(2) approved workplan labor hours or an estimated initial level of 
effort provided in accordance with 1511.011-74, (3) the period of 
performance and schedule of deliverables, and (4) the description of the 
work.
    (c) The Contractor shall acknowledge receipt of each work assignment 
by returning to the Contracting Officer a signed copy of the work 
assignment within _ calendar days after its receipt. The Contractor 
shall begin working on a work plan immediately upon receipt of a work 
assignment. Within _ calendar days after receipt of a work assignment, 
the Contractor shall submit _ copies of a work plan to the Contract-
level Contracting Officer's Representative and _ copies to the 
Contracting Officer. The work plan shall include a detailed technical 
and staffing plan and a detailed cost estimate. Within _ calendar days 
after receipt of the work plan, the Contracting Officer will provide 
written approval or disapproval of it to the Contractor. The Contractor 
is not authorized to start work without an approved work plan unless 
approved by the Contracting Officer or otherwise specified. Also, if the 
Contracting Officer disapproves a work plan, the Contractor shall stop 
work until the problem causing the disapproval is resolved. In either 
case, the Contractor shall resume work only when the Contracting Officer 
approves the work plan.
    (d) This clause does not change the requirements of the ``Level of 
Effort'' clause, nor the notification requirements of either the 
``Limitation of Cost'' or ``Limitation of Funds'' clauses.
    (e) Work assignments shall not allow for any change to the terms or 
conditions of the contract. Where any language in the work assignment 
may suggest a change to the terms or conditions, the Contractor shall 
immediately notify the Contracting Officer.

                             (End of clause)

    Alternate I (APR 1984). As prescribed in 1511.011-74(b)(1), modify 
the existing clause by adding the following paragraph (f) to the basic 
clause:
    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
(COI) certification. Where work assignments or similar tasking documents 
are issued under this contract for work on or directly related to a 
site, the Contractor is only required to provide a COI certification for 
the first work assignment issued for that site. For all subsequent work 
on that site under this contract, the Contractor has a continuing 
obligation to search and report any actual or potential COIs, but no 
additional COI certifications are required.
    Before submitting the COI certification, the Contractor shall search 
its records accumulated, at a minimum, over the past three years 
immediately prior to the receipt of the work assignment or similar 
tasking document. In the COI certification, the Contractor must certify 
to the best of the Contractor's knowledge and belief that all actual or 
potential organizational COIs have been reported to the Contracting 
Officer, or that to the best of the Contractor's knowledge and belief, 
no actual or potential organizational COIs exist. In addition, the 
Contractor must certify that its personnel who perform work under this 
work assignment or relating to this work assignment have been informed 
of their obligation to report personal and organizational COIs to the 
Contractor. The COI certification shall also include a statement that 
the Contractor recognizes its continuing obligation to identify and 
report any actual or potential COI arising during performance of this 
work assignment or other work related to this site.
    Alternate II (APR 1984). As prescribed in 1511.011-74(b)(1), modify 
the existing clause by adding the following paragraph (f) to the basic 
clause:
    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
(COI) certification. Where work assignments or similar tasking documents 
are issued under this contract for work on or directly related to a 
site, the Contractor is only required to provide a COI certification for 
the first work assignment issued for that site. For all subsequent work 
on that site under this contract, the Contractor has a continuing 
obligation to search and report any actual or potential COIs, but no 
additional COI certifications are required.
    Before submitting the COI certification, the Contractor shall 
initially search through all of its available records to identify any 
actual or potential COIs. During the first three years of this contract, 
the Contractor shall search through all records created since the 
beginning of the contract plus the records of the Contractor prior to 
the award of the contract until a minimum of three years of

[[Page 68]]

records are accumulated. Once three years of records have accumulated, 
prior to certifying, the Contractor shall search its records 
accumulated, at a minimum, over the past three years immediately prior 
to the receipt of the work assignment or similar tasking document. In 
the COI certification, the Contractor must certify to the best of the 
Contractor's knowledge and belief, that all actual or potential 
organizational COIs have been reported to the Contracting Officer, or 
that to the best of the Contractor's knowledge and belief, no actual or 
potential organizational COIs exist. In addition, the Contractor must 
certify that its personnel who perform work under this work assignment 
or relating to this work assignment have been informed of their 
obligation to report personal and organizational COIs to the Contractor. 
The COI certification shall also include a statement that the Contractor 
recognizes its continuing obligation to identify and report any actual 
or potential COI arising during performance of this work assignment or 
other work related to this site.
    Alternate III (DEC 2014). As prescribed in 1511.011-74(b)(2), modify 
the existing clause by adding the following paragraph (f) to the basic 
clause:
    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
(COI) certification.
    Before submitting the COI certification, the Contractor shall search 
its records accumulated, at a minimum, over the past three years 
immediately prior to the receipt of the work assignment or similar 
tasking document. In the COI certification, the Contractor must certify 
to the best of the Contractor's knowledge and belief that all actual or 
potential organizational COIs have been reported to the Contracting 
Officer, or that to the best of the Contractor's knowledge and belief, 
no actual or potential organizational COIs exist. In addition, the 
Contractor must certify that its personnel who perform work under this 
work assignment or relating to this work assignment have been informed 
of their obligation to report personal and organizational COIs to the 
Contractor. The COI certification shall also include a statement that 
the Contractor recognizes its continuing obligation to identify and 
report any actual or potential COI arising during performance of this 
work assignment.
    Alternate IV (DEC 2014). As prescribed in 1511.011-74(b)(2), modify 
the existing clause by adding the following paragraph (f) to the basic 
clause:
    (f) Within 20 days of receipt of the work assignment or similar 
tasking document, the Contractor shall provide a conflict of interest 
(COI) certification.
    Before submitting the COI certification, the Contractor shall 
initially search through all of its available records to identify any 
actual or potential COIs. During the first three years of this contract, 
the Contractor shall search through all records created since the 
beginning of the contract plus records of the Contractor prior to the 
award of the contract until a minimum of three years of records have 
accumulated. Once three years of records have accumulated, prior to 
certifying, the Contractor shall search its records, at a minimum, over 
the past three years immediately prior to the receipt of the work 
assignment or similar tasking document. In the COI certification, the 
Contractor must certify to the best of the Contractor's knowledge and 
belief that all actual or potential organizational COIs have been 
reported to the Contracting Officer, or that to the best of the 
Contractor's knowledge and belief, no actual or potential organizational 
COIs exist. In addition, the Contractor must certify that its personnel 
who perform work under this work assignment or relating to this work 
assignment have been informed of their obligation to report personal and 
organizational COIs to the Contractor. The COI certification shall also 
include a statement that the Contractor recognizes its continuing 
obligation to identify and report any actual or potential COI arising 
during performance of this work assignment.

                             (End of clause)

[79 FR 75436, Dec. 18, 2014, as amended at 82 FR 33021, July 19, 2017]



1552.211-75  Working files.

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

                        Working Files (APR 1984)

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

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 21994, May 4, 1995. Redesignated at 61 FR 57339, Nov. 6, 
1996, as amended at 62 FR 33573, June 20, 1997; 80 FR 29986, May 26, 
2015]

[[Page 69]]



1552.211-76  Legal analysis.

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

                        Legal Analysis (APR 1984)

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

                             (End of clause)

[49 FR 8867, Mar. 8, 1984. Redesignated at 55 FR 39622, Sept. 28, 1990, 
as amended at 60 FR 21994, May 4, 1995. Redesignated at 61 FR 57339, 
Nov. 6, 1996, as amended at 62 FR 33573, June 20, 1997; 78 FR 46291, 
July 31, 2013]



1552.211-77  Final reports.

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

                        Final Reports (SEP 2013)

    (a) ``Draft Report'' The Contractor shall submit a copy of the draft 
final report on or before (date) to the Contracting Officer's 
Representative and Contracting Officer in electronic format, unless 
specified otherwise by the Government. The draft shall be double-spaced 
or space-and-a-half and shall include all pertinent material required in 
the final report. The Government will review for approval or disapproval 
the draft and provide a response to the Contractor within __ calendar 
days after receipt. If the Government does not provide a response within 
the allotted review time, the Contractor immediately shall notify the 
Contracting Officer in writing.
    (b) ``Final Report''--The Contractor shall deliver a final report on 
or before the last day of the period of performance specified in the 
contract. Distribution is as follows:

------------------------------------------------------------------------
                                                     Address (email and/
        No. of copies               Addressee           or shipping)
------------------------------------------------------------------------
1...........................  EPA Library.........
1...........................  Contracting Officer.
1...........................  Contracting
                               Officer's
                               Representative.
------------------------------------------------------------------------

    (c) The electronic format of the draft and final report shall be in 
accordance with the current EPA policy and procedures.

                             (End of clause)

[78 FR 46291, July 31, 2013, as amended at 80 FR 29986, May 26, 2015]



1552.211-78  Advisory and assistance services.

    As prescribed in 1511.011-78, insert the following contract clause 
in all contracts for advisory and assistance services.

               Advisory and Assistance Services (JUL 2016)

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

                             (End of clause)

[50 FR 14360, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985. Redesignated at 
55 FR 39622, Sept. 28, 1990, as amended at 60 FR 21994, May 4, 1995. 
Redesignated at 61 FR 57339, Nov. 6, 1996, as amended at 62 FR 33573, 
June 20, 1997; 80 FR 29986, June 26, 2015; 81 FR 31528, May 19, 2016]



1552.211-79  Compliance with EPA policies for information resources
management.

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

 Compliance With EPA Policies for Information Resources Management (JUL 
                                  2016)

    (a) Definition. Information Resources Management (IRM) is defined as 
any planning, budgeting, organizing, directing, training, promoting, 
controlling, and managing activities associated with the burden, 
collection, creation, use and dissemination of information. IRM includes 
both information itself and the management of information and related 
resources such as personnel, equipment, funds, and technology. Examples

[[Page 70]]

of these services include but are not limited to the following:
    (1) The acquisition, creation, or modification of a computer program 
or automated data base for delivery to EPA or use by EPA or contractors 
operating EPA programs.
    (2) The analysis of requirements for, study of the feasibility of, 
evaluation of alternatives for, or design and development of a computer 
program or automated data base for use by EPA or contractors operating 
EPA programs.
    (3) Services that provide EPA personnel access to or use of computer 
or word processing equipment, software, or related services.
    (4) Services that provide EPA personnel access to or use of: Data 
communications; electronic messaging services or capabilities; 
electronic bulletin boards, or other forms of electronic information 
dissemination; electronic record-keeping; or any other automated 
information services.
    (b) General. The Contractor shall perform any IRM-related work under 
this contract in accordance with the IRM policies, standards, and 
procedures set forth on the Office of Environmental Information policy 
Web site. Upon receipt of a work request (i.e. delivery order, task 
order, or work assignment), the Contractor shall check this listing of 
directives. The applicable directives for performance of the work 
request are those in effect on the date of issuance of the work request. 
The 2100 Series (2100-2199) of the Agency's Directive System contains 
the majority of the Agency's IRM policies, standards, and procedures.
    (c) Section 508 requirements (accessibility). Contract deliverables 
are required to be compliant with Section 508 requirements 
(accessibility for people with disabilities). The Environmental 
Protection Agency policy for 508 compliance can be found at www.epa.gov/
accessibility.
    (d) Electronic access. A complete listing, including full text, of 
documents included in the 2100 Series of the Agency's Directive System 
is maintained on the EPA Public Access Server on the Internet at http://
www2.epa.gov/irmpoli8/current-information-directives.

                             (End of clause)

[77 FR 429, Jan. 5, 2012, as amended at 78 FR 46291, July 31, 2013; 81 
FR 31528, May 19, 2016]



1552.213-70  Notice to suppliers of equipment.

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

               Notice to Suppliers of Equipment (APR 1984)

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

                             (End of clause)

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



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

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

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

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

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                           (End of provision)



1552.215-70--1552.215-71  [Reserved]



1552.215-72  Instructions for the Preparation of Proposals.

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

[[Page 71]]

        Instructions for the Preparation of Proposals (AUG 1999)

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

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (b) Cost or pricing proposal instructions. The offeror shall prepare 
and submit cost or pricing information data and supporting attachments 
in accordance with Table 15-2 of FAR 15.408. In addition to a hard copy 
of the information, to expedite review of the proposal, submit an IBM-
compatible software or storage device (e.g., USB flash drive or card 
reader) containing the financial data required, if this information is 
available using a commercial spreadsheet program on a personal computer. 
Submit this information using Microsoft Exchange 365, if available. 
Identify which version of Microsoft Exchange used. If the offeror used 
another spreadsheet program, indicate the software program used to 
create this information. Offerors should include the formulas and 
factors used in calculating the financial data. Although submission of a 
compatible software or device will expedite review, failure to submit a 
disk will not affect consideration of the proposal.
    (1) General--Submit cost or pricing information prepared in 
accordance with FAR Table 15-2, Instructions for Submitting Cost/Price 
Proposals When Cost or Pricing Information Are Required and the 
following:
    (i) Clearly identify separate cost or pricing information associated 
with any:
    (A) Options to extend the term of the contract;
    (B) Options for the Government to order incremental quantities; and/
or
    (C) Major tasks, if required by the special instructions.
    (ii) If the contract schedule includes a ``Fixed Rate for Services'' 
clause, please provide in the cost proposal a schedule duplicating the 
format in the clause and include proposed fixed hourly rates per labor 
category for the base and any optional contract periods.
    (iii) If the contract includes the clause at FAR 52.232-7, 
``Payments Under Time and Materials and Labor-Hour Contracts,'' include 
in the cost proposal the estimated costs and burden rate to be applied 
to materials, other direct costs, or subcontracts. The Government will 
include these costs as part of its cost proposal evaluation.
    (iv) If other divisions, subsidiaries, a parent or affiliated 
companies will perform work, provide the name and location of such 
affiliate and offeror's intercompany pricing policy. Separately identify 
costs and supporting data for each entity proposed.
    (v) The realism of costs, including personnel compensation rates 
(including effective hourly rates due to uncompensated overtime) will be 
part of the proposal evaluation. Any reductions to proposed costs or 
differences between proposed and known EPA/DCAA recommended rates must 
be fully explained. If an offeror makes a reduction which makes its 
offer or portions of its offer below anticipated costs, the offeror 
shall identify where (i.e., which elements of costs) the proposed 
reductions will be made. Unsubstantiated rates may result in an upward 
or downward adjustment of the cost proposals to reflect more realistic 
costs. Based on this analysis, a projected cost for the offeror will be 
calculated to reflect the Government's estimate of the offeror's 
probable costs. Any inconsistency, whether real or apparent, between the 
promised performance and cost or price should be explained. The burden 
of proof for cost credibility rests with the offeror.
    (2) Direct labor. (i) The direct technical labor hours (level-of-
effort) appearing in the solicitation are for professional and technical 
labor only. These hours do not include management at a level higher than 
project management, e.g., corporate and day-to-day management, nor do 
they include clerical and support staff at a level lower than 
technician. If it is the offeror's normal practice to charge these types 
of costs as direct costs, include these costs along with an estimate of 
the directly chargeable labor-hours for these personnel. These direct 
charges are to be shown separately from the technical (level-of-effort) 
effort. If this type of effort is normally included in the offeror's 
indirect cost allocations, no estimate is required. However, direct 
charging of these on any resulting contract will not be allowed. 
Additionally the direct technical labor hours are the workable hours 
required by the Government and do not include release time (i.e., 
holidays, vacation, etc.) Submit the proposal utilizing the labor 
categories and distribution of the level-of-effort specified in the 
solicitation. These are approximate distribution levels and do not 
necessarily represent the actual levels which may be experienced during 
contract performance.
    (ii) Explain the basis of the proposed labor rates, including a 
complete justification for all judgmental factors used to develop 
weights applied to company's category or individual rates that comprise 
the rates for labor categories specified in the solicitation. This 
explanation should describe how technical approach coincides with the 
proposed costs. If the proposed direct labor rates are based on an 
average of the individuals proposed to work on the contract, provide a 
list

[[Page 72]]

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

    Note to paragraph (b)(3)(iv):
    The Government reserves the right to adjust an offeror's or its 
subcontractor's estimated indirect costs for evaluation purposes based 
on the

[[Page 73]]

Agency's judgment of the most probable costs up to the amount of any 
stated ceiling.

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

                           (End of provision)

    Alternate I (AUG 1999). If the Government's requirement is a fully 
dedicated

[[Page 74]]

staff person for a twelve month period(s) for each specified position 
and performance is on a Government facility, add the following paragraph 
(b)(2)(x) to the basic provision:

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

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

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

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

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

[64 FR 47415, Aug. 31, 1999, as amended at 78 FR 46291, July 31, 2013; 
80 FR 20170, Apr. 15, 2015]



1552.215-73  General financial and organizational information.

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

      General Financial and Organizational Information: (AUG 1999)

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

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

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

Sales:

[[Page 75]]

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


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

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

 (h) Date Company Organized:____________________________________________

    (i) Manpower:

Total Employees:________________________________________________________

Direct:_________________________________________________________________

Indirect:_______________________________________________________________

Standard Work Week (Hours):_____________________________________________

 (j) Commercial Products:_______________________________________________

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

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

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

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

________________________________________________________________________
________________________________________________________________________

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

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

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

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

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

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

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

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

________________________________________________________________________
________________________________________________________________________

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

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

    If no, do you estimate that your negotiated sales to the Government 
during the next twelve months will meet the $25 million threshold? Yes _ 
No _

[[Page 76]]

    If you responded yes to the $25 million threshold question, is EPA 
the cognizant agency for your organization based on the preponderance of 
Government contract dollars?
Yes _ No _
    If EPA is not your cognizant Government agency, provide the name and 
location of the cognizant agency _________________
________________________________________________________________________
    Are your purchasing policies and procedures written?
Yes _ No _
    (r) Does your firm have an established written incentive 
compensation or bonus plan?
Yes _ No _
    (s) Additionally, offerors shall submit current financial 
statements, including a Balance Sheet, Statement of Income (Loss), and 
Cash Flow for the last two completed fiscal years. Specify resources 
available to perform the contract without assistance from any outside 
source. If sufficient resources are not available, indicate in proposal 
the amount required and the anticipated source (i.e., bank loans, letter 
or lines of credit, etc.).

                           (End of provision)

[64 FR 47417, Aug. 31, 1999]



1552.215-74  Advanced understanding--uncompensated time.

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

          Advanced Understanding--Uncompensated Time (AUG 1999)

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

                             (End of clause)

[64 FR 47418, Aug. 31, 1999]



1552.215-75  Past performance information.

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

                 Past Performance Information (OCT 2000)

    (a) Offerors shall submit the information requested below as part of 
their proposal for both the offeror and any proposed subcontractors for 
subcontracts expected to exceed $ * . The information may be submitted 
prior to other parts of the proposal in order to assist the Government 
in reducing the evaluation period.
    (b) Offerors shall submit a list of all or at least * contracts and 
subcontracts completed in the last * years, and all contracts and 
subcontracts currently in process, which are similar in nature to this 
requirement.
    (1) The contracts and subcontracts listed may include those entered 
into with Federal, State and local governments, and commercial 
businesses, which are of similar scope, magnitude, relevance, and 
complexity to the requirement which is described in the RFP. Include the 
following information for each contract and subcontract listed:
    (a) Name of contracting activity.
    (b) Contract number.
    (c) Contract title.
    (d) Contract type.

[[Page 77]]

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


[[Page 78]]


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

                             (End of clause)

[65 FR 58925, Oct. 3, 2000]



1552.215-76  [Reserved]



1552.216-70  Award Fee.

    As prescribed in 1516.406(a), insert the following clause:

                          Award Fee (MAY 2000)

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

                             (End of clause)

[60 FR 43404, Aug. 21, 1995, as amended at 65 FR 31500, May 18, 2000; 81 
FR 31528, May 19, 2016]



1552.216-71  Date of incurrence of cost.

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

                  Date of Incurrence of Cost (APR 1984)

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

________________________________________________________________________

                             (End of clause)



1552.216-72  Ordering--by designated ordering officers.

    As prescribed in 1516.505(a), insert the subject clause, or a clause 
substantially similar to the subject clause, in indefinite delivery/
indefinite quantity type solicitations and contracts.

          Ordering--by designated ordering officers (JUL 2014)

    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing task/delivery orders on 
Optional Form 347, or an agency prescribed form, from ___ through ___. 
In addition to the Contracting Officer, the following individuals are 
authorized ordering officers.
________________________________________________________________________
________________________________________________________________________
    (b) A Standard Form 30 will be the method of amending task/delivery 
orders.
    (c) The Contractor shall acknowledge receipt of each order by having 
an authorized company officer sign either a copy of a transmittal letter 
or signature block on page 3 of the task/delivery order, depending upon 
which is provided, within __ calendar days of receipt.
    (d) Prior to the placement of any task/delivery order, the 
Contractor will be provided with a proposed Performance Work Statement/
Statement of Work and will be asked to respond with detailed technical 
and cost proposals within __ calendar days or less. The technical 
proposal will delineate the Contractor's interpretation for the 
execution of the PWS/SOW, and the pricing proposal will be the 
Contractor's best estimate for the hours, labor categories and all costs 
associated with the execution. The proposals are subject to negotiation. 
The Ordering Officer and the Contractor shall reach agreement on all the 
material terms of each order prior to the order being issued.
    (e) Each task/delivery order issued will incorporate the 
Contractor's technical and cost proposals as negotiated with the 
Government, and will have a ceiling price which the contractor shall not 
exceed. When the Contractor has reason to believe that the labor payment 
and support costs for the order which will accrue in the next thirty 
(30) days will bring total cost to over 85 percent of the ceiling price 
specified in the order, the Contractor shall notify the Ordering 
Officer.
    (f) Under no circumstances will the Contractor start work prior to 
the issue date of the task/delivery order unless specifically authorized 
to do so by the Ordering Officer. Any verbal authorization will be 
confirmed

[[Page 79]]

in writing by the Ordering Officer or Contracting Officer within __ 
calendar days.

                             (End of clause)

    Alternate I (JUL 2014). As prescribed in 1516.505(a), insert the 
subject clause, or a clause substantially similar to the subject clause, 
in indefinite delivery/indefinite quantity contracts when formal input 
from the Contractor will not be obtained prior to order issuance.

    (a) The Government will order any supplies and services to be 
furnished under this contract by issuing task/delivery orders on 
Optional Form 347, or any agency prescribed form, from __ through __. In 
addition to the Contracting Officer, the following individuals are 
authorized ordering officers:
________________________________________________________________________
________________________________________________________________________
    (b) A Standard Form 30 will be the method of amending task/delivery 
orders.
    (c) The Contractor shall acknowledge receipt of each order and shall 
prepare and forward to the Ordering Officer within __ calendar days the 
proposed staffing plan for accomplishing the assigned task within the 
period specified.
    (d) If the Contractor considers the estimated labor hours or 
specified work completion date to be unreasonable, the Contractor shall 
promptly notify the Ordering Officer and Contracting Officer in writing 
within __ calendar days, stating why the estimated labor hours or 
specified completion date is considered unreasonable.
    (e) Each task/delivery order will have a ceiling price, which the 
Contractor may not exceed. When the Contractor has reason to believe 
that the labor payment and support costs for the order, which will 
accrue in the next thirty (30) days, will bring total cost to over 85 
percent of the ceiling price specified in the order, the Contractor 
shall notify the Ordering Officer.
    (f) Paragraphs (c), (d), and (e) of this clause apply only when 
services are being ordered.

                             (End of clause)

[79 FR 37960, July 3, 2014, as amended at 81 FR 31528, May 19, 2016; 82 
FR 33021, July 19, 2017]



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

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

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

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

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

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

                             (End of clause)



1552.216-74  Payment of fee.

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

                        Payment of Fee (MAY 1991)

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

                             (End of clause)

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

[[Page 80]]



1552.216-75  Base fee and award fee proposal.

    As prescribed in 1516.406(b), insert the following provision:

               Base Fee and Award Fee Proposal (FEB 1999)

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

                           (End of provision)

[64 FR 3876, Jan. 26, 1999, as amended at 81 FR 31528, May 19, 2016; 82 
FR 33021, July 19, 2017]



1552.216-76  Estimated cost and cost-sharing.

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

               Estimated Cost and Cost-Sharing (APR 1996)

    (a) The total estimated cost of performing the work under this 
contract is $____. The Contractor's share of this cost shall not exceed 
$____. The Government's share of this cost shall not exceed $____.
    (b) For performance of the work under the contract, the Contractor 
shall be reimbursed for not more than __ percent of the cost of 
performance determined to be allowable under the Allowable Cost and 
Payment clause. The remaining balance of allowable cost shall constitute 
the Contractor's share.
    (c) Fee shall not be paid to the prime contractor under this cost-
sharing contract.
    (d) The Contractor shall maintain records of all costs incurred and 
claimed for reimbursement as well as any other costs claimed as part of 
its cost share. Those records shall be subject to audit by the 
Government.
    (e) Costs contributed by the Contractor shall not be charged to the 
Government under any other contract, grant or agreement (including 
allocation to other contracts as part of an independent research and 
development program) nor be included as contributions under any other 
Federal contract.

                             (End of clause)

[61 FR 14505, Apr. 2, 1996]



1552.216-77  Award term incentive.

    As prescribed in 1516.406(c), insert a clause substantially the same 
as follows:

                     Award Term Incentive (FEB 2008)

    (a) General. This contract may be extended as set forth in paragraph 
(b) based on overall contractor performance as evaluated in accordance 
with the Clause entitled ``Award Term Incentive Plan,'' provided the 
Agency has a need for the effort at or before the time an award term is 
to commence, and if the contractor receives notice of the availability 
of funding for an award term period pursuant to the ``Award Term 
Availability of Funds'' clause. The Contracting Officer is responsible 
for the overall award term evaluation and award term decision. The 
Contracting Officer will unilaterally decide whether or not the 
contractor is eligible for an award term extension, and in conjunction 
with the Contracting Officer's Representative, will determine the need 
for continued performance and funding availability.
    (b) Period of performance. Provided the contractor has achieved the 
performance measures, e.g., acceptable quality levels, set forth in the 
clause ``Award Term Incentive Plan,'' the Contracting Officer may extend 
the contract by exercising ____ [insert the total award term incentive 
periods] additional award term incentive period(s) of ____ [insert the 
award term incentive period] months each. The total maximum period of 
performance under this contract, if the Government exercises any option 
periods and all award term incentive periods is ____ [insert the total 
of the base period, option periods (if any), and award term incentive 
periods] years.
    (c) Right not to grant or cancel the award term incentive. (1) The 
Government has the unilateral right not to grant or to cancel award term 
incentive periods and the associated award term incentive plans if--
    (i) The Contracting Officer has failed to initiate an award term 
incentive period, regardless of whether the contractor's performance 
permitted the Contracting Officer to consider initiating the award term 
incentive period; or
    (ii) The contractor has failed to achieve the performance measures 
for the corresponding evaluation period; or
    (iii) The Government notifies the contractor in writing it does not 
have funds available for the award term incentive periods; or
    (iv) The Government no longer has a need for the award term 
incentive period at or before the time an award term incentive period is 
to commence.
    (2) When an award term incentive period is not granted or cancelled, 
any--

[[Page 81]]

    (i) Prior award term incentive periods for which the contractor 
remains otherwise eligible are unaffected.
    (ii) Subsequent award term incentive periods are thereby also 
cancelled.
    (d) Cancellation of an award term incentive period that has not yet 
commenced for any of the reasons set forth in paragraph (c) of this 
clause shall not be considered either a termination for convenience or 
termination for default, and shall not entitle the contractor to any 
termination settlement or any other compensation. If the award term 
incentive is cancelled, a unilateral modification will cite this clause 
as the authority.
    (e) Award term incentive administration. The award term incentive 
evaluation(s) will be completed in accordance with the schedule in the 
Award Term Incentive Plan. The contractor will be notified of the 
results and their eligibility to be considered for the respective award 
term incentive no later than 120 days after an evaluation period.
    (f) Review process. The contractor may request a review of an award 
term incentive evaluation which has resulted in the contractor being 
ineligible for the award term incentive. The request shall be submitted 
in writing to the Contracting Officer within 15 days after notification 
of the results of the evaluation.

                             (End of clause)

[73 FR 1981, Jan. 11, 2008, as amended at 81 FR 31528, May 19, 2016]



1552.216-78  Award term incentive plan.

    As prescribed in 1516.406(c), insert a clause substantially the same 
as follows:

                  Award Term Incentive Plan (FEB 2008)

    (a) The Award Term Incentive Plan provides for the evaluation of 
performance, and, together with Agency need and availability of funding, 
serves as the basis for award term decisions. The Award Term Incentive 
Plan may be unilaterally revised by the Government. Any changes to the 
Award Term Incentive Plan will be made in writing and incorporated into 
the contract through a unilateral modification citing this clause. The 
Government will consult with the contractor prior to the issuance of a 
revised Award Term Incentive Plan, but is not required to obtain the 
contractor's consent to the revisions.
    (b) [describe the evaluation periods and associated award term 
incentive periods, e.g., months 1-18 for award term incentive period I, 
and months 19-36 for award term incentive period II]
    (c) [describe the evaluation schedule, e.g., 90 days after the end 
of the evaluation period]
    (d) In order to be eligible for an award term incentive period the 
contractor must achieve all of the acceptable quality levels (AQL) for 
the evaluated tasks, both individual and aggregate, for that evaluation 
period. Failure to achieve any AQL renders the contractor ineligible for 
the associated award term incentive period. [identify the most 
significant tasks. Describe the AQL for each task as well as an overall 
AQL for the associated evaluation periods, e.g., an AQL of 90% each for 
tasks 1 and 3, and an AQL of 85% for task 7, and an overall AQL of 90% 
for the months 1-18 evaluation period]
    (e) [If the contract will contain a quality assurance surveillance 
plan (QASP), reference the QASP, e.g., attachment 2. Typically, the 
performance standards and AQLs will be defined in the QASP]

                             (End of clause)

    Alternate 1 (FEB 2008) As prescribed in 1516.406(d), substitute 
paragraphs substantially the same as following paragraphs (b) through 
(e) for paragraphs (b) through (e) in the basic clause:
    (b) At the conclusion of each contract year, an average contract 
rating shall be determined by using the numerical ratings entered into 
the Department of Defense Contractor Performance Assessment Reporting 
System (CPARS) for this contract. The CPARS is an interactive database 
located on the Internet which EPA uses to record contractor performance 
evaluations.
    (c) The contract year average rating shall be obtained by dividing 
the combined ratings by the number of ratings, for example:

------------------------------------------------------------------------
                 Criteria                              Rating
------------------------------------------------------------------------
Quality of Product or Service.............  5.
Cost Control..............................  4.
Timeliness of Performance.................  4.
Business Relations........................  5.
                                            18 (combined rating).
                                            / 4 (number of ratings).
                                            = 4.5 contract year average
                                             rating.
------------------------------------------------------------------------

    (d) The contractor shall be evaluated for performance from the start 
of the contract through Year __ [identify the evaluation period, e.g., 
year three]. The average rating for each contract year (as derived in 
paragraph (c) above) will be combined and divided by [insert the number 
of evaluation periods] to obtain an overall average rating, for example:

------------------------------------------------------------------------
             Evaluation period                     Average rating
------------------------------------------------------------------------
Year One..................................  4.5.

[[Page 82]]

 
Year Two..................................  4.75.
Year Three................................  4.75.
                                            14 (combined average
                                             rating).
                                            / 3 (number of evaluation
                                             periods).
                                            = 4.66 overall average
                                             rating.
------------------------------------------------------------------------

    (e) Based on the overall average rating as determined under 
paragraph (d), provided that no individual rating, i.e., Quality of 
Product or Service, Cost Control, Timeliness of Performance, or Business 
Relations is below a 3, the contractor shall be eligible for the 
following award term periods:
    (1) Overall average rating of 4.6 to 5.0--Two award term incentive 
periods of __ [insert the number of months] months.
    (2) Overall average rating of 4.0 to 4.6--One award term incentive 
period of __ [insert the number of months] months.

[73 FR 1981, Jan. 11, 2008, as amended at 78 FR 46291, July 31, 2013]



1552.216-79  Award term availability of funds.

    As prescribed in 1516.406(c), insert the following clause:

               Award Term Availability of Funds (FEB 2008)

    Funds are not presently available for any award term. The 
Government's obligation under any award term is contingent upon the 
availability of appropriated funds from which payment can be made. No 
legal liability on the part of the Government for any award term payment 
may arise until funds are made available to the Contracting Officer for 
an award term and until the Contractor receives notice of such 
availability, to be confirmed in writing by the Contracting Officer.

                             (End of clause)

[73 FR 1981, Jan. 11, 2008, as amended at 81 FR 31528, May 19, 2016]



1552.217-70  Evaluation of contract options.

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

                Evaluation of Contract Options (APR 1984)

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

                           (End of provision)



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

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

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

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

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

    (d) If the contract contains ``not to exceed amounts'' for elements 
of other direct costs

[[Page 83]]

(ODC), those amounts will be increased as follows:

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

                             (End of clause)



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

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

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

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

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

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

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

                             (End of clause)

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



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

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

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

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

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

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

[[Page 84]]



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

                             (End of clause)

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



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

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

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

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

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

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

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

                             (End of clause)

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



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

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

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

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

                             (End of clause)

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



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

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

[[Page 85]]

   Option To Extend the Effective Period of the Contract--Indefinite 
            Delivery/Indefinite Quantity Contract (MAR 1984)

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

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 82 FR 33021, July 19, 2017]



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

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

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

    The Government has the option to extend the term of this contract 
for __ additional period(s). If more than __ days remain in the contract 
period of performance, the Government, without prior written 
notification, may exercise this option by issuing a contract 
modification. To exercise this option within the last __ days of the 
period of performance, the Government must provide to the Contractor 
written notification prior to that last __ -day period. This preliminary 
notification does not commit the Government to exercising the option. 
Use of an option will result in the following contract modifications:
    (a) The ``Period of Performance'' clause will be amended as follows 
to cover the Base and Option Periods:

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

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

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

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

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

                             (End of clause)

[65 FR 58925, Oct. 3, 2000, as amended at 82 FR 33021, July 19, 2017]



1552.219-70  Mentor-Prot[eacute]g[eacute] Program.

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

             Mentor-Prot[eacute]g[eacute] Program (SEP 2017)

    (a) The Contractor has been approved to participate in the EPA 
Mentor-Prot[eacute]g[eacute] Program. The purpose of the Program is to 
increase the participation of small disadvantaged businesses (SDBs) as 
subcontractors, suppliers, and ultimately as prime contractors; 
establish a mutually beneficial relationship with SDBs and EPA's large 
business prime contractors (although small businesses may participate as 
Mentors); develop the technical and corporate administrative expertise 
of SDBs which will ultimately lead to greater success in competition for 
contract opportunities; promote the economic stability of SDBs; and aid 
in the achievement of goals for the use of SDBs in subcontracting 
activities under EPA contracts.
    (b) The Contractor shall submit an executed Mentor-
Prot[eacute]g[eacute] agreement to the Contracting Officer, with a copy 
to the Office of

[[Page 86]]

Small and Disadvantaged Business Utilization (OSDBU) or the Small 
Business Specialist, within thirty (30) calendar days after the 
effective date of the contract. The Contracting Officer will notify the 
Contractor within thirty (30) calendar days from its submission if the 
agreement is not accepted.
    (c) The Contractor as a Mentor under the Program agrees to fulfill 
the terms of its agreement(s) with the Prot[eacute]g[eacute] firm(s).
    (d) If the Contractor or Prot[eacute]g[eacute] firm is suspended or 
debarred while performing under an approved Mentor-Prot[eacute]g[eacute] 
agreement, the Contractor shall promptly give notice of the suspension 
or debarment to the OSDBU and the Contracting Officer.
    (e) Costs incurred by the Contractor in fulfilling their 
agreement(s) with the Prot[eacute]g[eacute] firm(s) are not reimbursable 
on a direct basis under this contract.
    (f) In an attachment to Individual Subcontract Reports (ISR), the 
Contractor shall report on the progress made under their Mentor-
Prot[eacute]g[eacute] agreement(s), providing:
    (1) The number of agreements in effect; and
    (2) The progress in achieving the developmental assistance 
objectives under each agreement, including whether the objectives of the 
agreement have been met, problem areas encountered, and any other 
appropriate information.

                             (End of clause)

[82 FR 33021, July 19, 2017]



1552.219-71  Procedures for Participation in the EPA Mentor-Prot
[eacute]g[eacute] Program.

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

  Procedures for Participation in the EPA Mentor-Prot[eacute]g[eacute] 
                           Program (SEP 2017)

    (a) This provision sets forth the procedures for participation in 
the EPA Mentor-Prot[eacute]g[eacute] Program (hereafter referred to as 
the Program). The purpose of the Program is to increase the 
participation of concerns owned and/or controlled by socially and 
economically disadvantaged individuals as subcontractors, suppliers, and 
ultimately as prime contractors; to establish a mutually beneficial 
relationship between these concerns and EPA's large business prime 
contractors (although small businesses may participate as Mentors); to 
develop the technical and corporate administrative expertise of these 
concerns, which will ultimately lead to greater success in competition 
for contract opportunities; to promote the economic stability of these 
concerns; and to aid in the achievement of goals for the use of these 
concerns in subcontracting activities under EPA contracts. If the 
successful offeror is accepted into the Program they shall serve as a 
Mentor to a Prot[eacute]g[eacute] firm(s), providing developmental 
assistance in accordance with an agreement with the 
Prot[eacute]g[eacute] firm(s).
    (b) To participate as a Mentor, the offeror must receive approval in 
accordance with paragraph (h) of this section.
    (c) A Prot[eacute]g[eacute] must be a concern owned and/or 
controlled by socially and economically disadvantaged individuals within 
the meaning of section 8(a)(5) and (6) of the Small Business Act (15 
U.S.C. 637(a)(5) and (6)), including historically black colleges and 
universities. Further, in accordance with Public Law 102-389 (the 1993 
Appropriation Act), for EPA's contracting purposes, economically and 
socially disadvantaged individuals shall be deemed to include women.
    (d) Where there may be a concern regarding the Prot[eacute]g[eacute] 
firm's eligibility to participate in the program, the 
prot[eacute]g[eacute]'s eligibility will be determined by the 
contracting officer after the SBA has completed any formal 
determinations.
    (e) The offeror shall submit an application in accordance with 
paragraph (k) of this section as part of its proposal which shall 
include as a minimum the following information.
    (1) A statement and supporting documentation that the offeror is 
currently performing under at least one active Federal contract with an 
approved subcontracting plan and is eligible for the award of Federal 
contracts;
    (2) A summary of the offeror's historical and recent activities and 
accomplishments under any disadvantaged subcontracting programs. The 
offeror is encouraged to include any initiatives or outreach information 
believed pertinent to approval as a Mentor firm;
    (3) The total dollar amount (including the value of all option 
periods or quantities) of EPA contracts and subcontracts received by the 
offeror during its two preceding fiscal years. (Show prime contracts and 
subcontracts separately per year);
    (4) The total dollar amount and percentage of subcontract awards 
made to all concerns owned and/or controlled by disadvantaged 
individuals under EPA contracts during its two preceding fiscal years.
    (5) The number and total dollar amount of subcontract awards made to 
the identified Prot[eacute]g[eacute] firm(s) during the two preceding 
fiscal years (if any).
    (f) In addition to the information required by paragraph (e) of this 
section, the offeror shall submit as a part of the application the 
following information for each proposed Mentor-Prot[eacute]g[eacute] 
relationship:
    (1) Information on the offeror's ability to provide developmental 
assistance to the identified Prot[eacute]g[eacute] firm and how the 
assistance will potentially increase contracting and subcontracting 
opportunities for the Prot[eacute]g[eacute] firm.

[[Page 87]]

    (2) A letter of intent indicating that both the Mentor firm and the 
Prot[eacute]g[eacute] firm intend to enter into a contractual 
relationship under which the Prot[eacute]g[eacute] will perform as a 
subcontractor under the contract resulting from this solicitation and 
that the firms will negotiate a Mentor-Prot[eacute]g[eacute] agreement. 
The letter of intent must be signed by both parties and contain the 
following information:
    (i) The name, address and phone number of both parties;
    (ii) The Prot[eacute]g[eacute] firm's business classification, based 
upon the NAICS code(s) which represents the contemplated supplies or 
services to be provided by the Prot[eacute]g[eacute] firm to the Mentor 
firm;
    (iii) A statement that the Prot[eacute]g[eacute] firm meets the 
eligibility criteria;
    (iv) A preliminary assessment of the developmental needs of the 
Prot[eacute]g[eacute] firm and the proposed developmental assistance the 
Mentor firm envisions providing the Prot[eacute]g[eacute]. The offeror 
shall address those needs and how their assistance will enhance the 
Prot[eacute]g[eacute]. The offeror shall develop a schedule to assess 
the needs of the Prot[eacute]g[eacute] and establish criteria to 
evaluate the success in the Program;
    (v) A statement that if the offeror or Prot[eacute]g[eacute] firm is 
suspended or debarred while performing under an approved Mentor-
Prot[eacute]g[eacute] agreement the offeror shall promptly give notice 
of the suspension or debarment to the EPA Office of Small and 
Disadvantaged Business Utilization (OSDBU) and the Contracting Officer. 
The statement shall require the Prot[eacute]g[eacute] firm to notify the 
Contractor if it is suspended or debarred.
    (g) The application will be evaluated on the extent to which the 
offeror's proposal addresses the items listed in paragraphs (e) and (f) 
of this section. To the maximum extent possible, the application should 
be limited to not more than 10 single pages, double spaced. The offeror 
may identify more than one Prot[eacute]g[eacute] in its application.
    (h) If the offeror is determined to be in the competitive range, or 
is awarded a contract without discussions, the offeror will be advised 
by the Contracting Officer whether their application is approved or 
rejected. The Contracting Officer, if necessary, may request additional 
information in connection with the offeror's submission of its revised 
or best and final offer. If the successful offeror has submitted an 
approved application, they shall comply with the clause titled ``Mentor-
Prot[eacute]g[eacute] Program.''
    (i) Subcontracts of $1,000,000 or less awarded to firms approved as 
Prot[eacute]g[eacute]s under the Program are exempt from the 
requirements for competition set forth in FAR 44.202-2(a)(5) and 52.244-
5(b). However, price reasonableness must still be determined and the 
requirements in FAR 44.202-2(a)(8) for cost and price analysis continue 
to apply.
    (j) Costs incurred by the offeror in fulfilling their agreement(s) 
with a Prot[eacute]g[eacute] firm(s) are not reimbursable as a direct 
cost under the contract. Unless EPA is the responsible audit agency 
under FAR 42.703-1, offerors are encouraged to enter into an advance 
agreement with their responsible audit agency on the treatment of such 
costs when determining indirect cost rates. Where EPA is the responsible 
audit agency, these costs will be considered in determining indirect 
cost rates.
    (k) Submission of Application and Questions Concerning the Program. 
The application for the Program shall be submitted to the Contracting 
Officer, and to the EPA Office of Small and Disadvantaged Business 
Utilization at the following address: Office of Small and Disadvantaged 
Business Utilization, U.S. Environmental Protection Agency, William 
Jefferson Clinton North Building, Mail Code 1230A, 1200 Pennsylvania 
Avenue NW., Washington, DC 20460, Telephone: (202) 566-2075, Fax: (202) 
566-0266.

                           (End of provision)

[82 FR 33022, July 19, 2017]



1552.219-72--1552.219-74  [Reserved]



1552.223-70  Protection of human subjects.

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

                 Protection of Human Subjects March 2015

    (a) The contractor shall meet all EPA requirements for studies using 
human subjects prior to undertaking any work with human subjects in 
accordance with 40 CFR part 26 and EPA Order 1000.17 A1 Policy and 
Procedures on Protection of Human Research Subjects in EPA Conducted or 
Supported Research. Studies involving intentional exposure of human 
subjects who are children or pregnant or nursing women are prohibited. 
Requirements regarding observational studies involving children or 
pregnant women and fetuses are referenced in subparts C and D of 40 CFR 
part 26.
    (b) The contractor's Institutional Review Board (IRB) approval must 
state that the contractor's study meets the EPA's regulations at 40 CFR 
part 26 and EPA Order 1000.17 A1. No work involving human subjects, 
including recruiting, may be initiated before the EPA has received a 
copy of the contractor's IRB approval of the project and the EPA has 
also issued approval. Where human subjects are involved in the research, 
the contractor must provide evidence of subsequent IRB reviews, 
including amendments or

[[Page 88]]

minor protocol changes, as part of annual reports.
    (c) The contractor shall bear full responsibility for the proper and 
safe performance of all work and services involving the use of human 
subjects under this contract and shall ensure that work is conducted in 
a proper manner and as safely as is feasible. 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 imputing liability on the part of the government for 
the acts of the contractor, its employees, sub-contractors, consultants, 
heirs, assignees, etc.
    (d) If at any time during the performance of this contract, the 
contracting officer determines that the contractor is not in compliance 
with any of the requirements and/or standards stated in 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 terminate this contract in whole or in part.

                             (End of clause)

[80 FR 4215, Jan. 27, 2015]



1552.223-71  EPA Green Meetings and Conferences.

    As prescribed in 1523.703-1, insert the following provision, or 
language substantially the same as the provision, in solicitations for 
meetings and conference facilities.

              EPA Green Meetings and Conferences (SEP 2017)

    (a) The mission of the EPA is to protect human health and the 
environment. As such, all EPA meetings and conferences will be staged 
using as many environmentally preferable measures as possible. 
Environmentally preferable means products or services that have a lesser 
or reduced effect on the environment when compared with competing 
products or services that serve the same purpose.
    (b) Potential meeting or conference facility providers for EPA shall 
provide information about the environmentally preferable features and 
practices identified by the checklist contained in paragraph (c) of this 
section, addressing sustainability for meeting and conference facilities 
including lodging and non-lodging oriented facilities.
    (c) The following list of questions is provided to assist 
contracting officers in evaluating the environmental preferability of 
prospective meeting and conference facility providers. More information 
about EPA's Green Meetings initiative may be found on the Internet at 
https://www.epa.gov/p2/green-meetings.
    (1) Does your facility track energy usage and/or GHG emissions 
through ENERGY STAR Portfolio Manager (http://www.energystar.gov/
benchmark) or some other calculator based on a recognized greenhouse gas 
tracking protocol? Y/N_
    (2) If available for your building type, does your facility 
currently qualify for the Energy Star certification for superior energy 
performance? Y/N _, NA_
    (3) Does your facility track water use through ENERGY STAR Portfolio 
Manager or another equivalent tracking tool and/or undertake best 
management practices to reduce water use in the facility (http://
www.epa.gov/watersense/commercial)? Y/N_
    (4) Do you use landscaping professionals who are either certified by 
a WaterSense recognized program or actively undertake the WaterSense 
``Water-Smart'' landscaping design practices (http://www.epa.gov/
watersense/outdoor)? Y/N_, NA_
    (5) Based on the amount of renewable energy your buildings uses, 
does (or would) your facility qualify as a partner under EPA's Green 
Power Partnership program (https://www.epa.gov/greenpower/green-power-
partnership-basic-program-information)? Y/N_
    (6) Do you restrict idling of motor vehicles in front of your 
facility, at the loading dock and elsewhere at your facility? Y/N_
    (7) Does your facility have a default practice of not changing 
bedding and towels unless requested by guests? Y/N_, NA_
    (8) Does your facility participate in EPA's WasteWise (https://
www.epa.gov/smm/wastewise) and/or Food Recovery Challenge (https://
www.epa.gov/sustainable-management-food/food-recovery-challenge-frc) 
programs? Y/N_
    (9) Do you divert from landfill at least 50% of the total solid 
waste generated at your facility? Y/N_
    (10) Will your facility be able to divert from the landfill at least 
75% of the total solid waste expected to be generated during this 
conference/event? Y/N_
    (11) Do you divert from landfill at least 50% of the food waste 
generated at your facility (through donation, use as animal feed, 
recycling, anaerobic digestion, or composting)? Y/N_
    (12) Will your facility be able to divert from landfill at least 75% 
of the food waste

[[Page 89]]

expected to be generated during this conference/event (through donation, 
use as animal feed, recycling, anaerobic digestion, or composting)? Y/N_
    (13) Does your facility provide recycling containers for visitors, 
guests and staff (paper and beverage at minimum)? Y/N_
    (14) With respect to any food and beverage prepared and/or served at 
your facility, does at least 50% of it on average meet sustainability 
attributes such as: Local, organic, fair trade, fair labor, antibiotic-
free, etc.? Y/N_
    (15) Will your facility be able to ensure that at least 75% of the 
food and beverage expected to be served during this conference/event 
meets sustainability attributes such as: Local, organic, fair trade, 
fair labor, antibiotic-free, etc.? Y/N_
    (16) Does your facility use Design for the Environment (DfE) 
cleaning products (https://www.epa.gov/saferchoice/history-safer-choice-
and-design-environment), or similar products meeting other recognized 
standards for being `environmentally preferable' (http://www.epa.gov/
epp/) or more sustainable? Y/N_
    (17) Is your facility prepared to document or demonstrate all of the 
claims you have made above? Y/N_
    (d) The contractor shall include any additional ``Green Meeting'' 
information in their proposal which is believed is pertinent to better 
assist us in considering environmental preferability in selecting our 
meeting venue.

                           (End of provision)

[82 FR 33022, July 19, 2017]



1552.223-72  Use and care of laboratory animals.

    As prescribed in 1523.303-72, insert the following clause in all 
contracts involving the use of animals in testing, research or training:

              Use and Care of Laboratory Animals March 2015

    (a) Use of laboratory animals. (1) Before undertaking performance of 
any contract involving the use of laboratory animals, the contractor 
shall register with the Secretary of Agriculture of the United States in 
accordance with the Secretary of Agriculture of the United States in 
accordance with the Animal Welfare Act of 1966, as amended (AWA), 
codified at 7 U.S.C. 2131 et seq. and promulgated at 9 CFR parts 1-4. 
The contractor shall furnish evidence of such registration to the 
contracting officer.
    (2) The contractor shall acquire animals used in research and 
development programs from a dealer licensed by the Secretary of 
Agriculture, or from exempted sources in accordance with 9 CFR 2.25-
2.28. Animals shall not be acquired from any random source Class B 
dealer.
    (3) The contractor may request registration of his/her facility and 
a current listing of licensed dealers from the Regional Office of the 
Animal and Plant Health Inspection Service (APHIS), USDA, for the region 
in which his/her research facility is located. The location of the 
appropriate APHIS Regional Office as well as information concerning this 
program may be obtained at http://www.aphis.usda.gov/contact_us/.
    (b) Care of laboratory animals. (1) In the care of any live animals 
used or intended for use in the performance of this contract, the 
contractor shall adhere to:
    (i) The standards and practices incorporated in the Guide for Care 
and Use of Laboratory Animals, prepared by the Institute of Laboratory 
Animal Research of the National Research Council of the National 
Academies (ILAR/NRC),
    (ii) The Animal Welfare Regulations found in 9 CFR parts 1-4, and
    (iii) The National Institutes of Health (NIH) Public Health Service 
(PHS) Policy on the Humane Care and Use of Laboratory Animals.
    (2) In case of conflict between standards, the higher standard shall 
be used.
    (3) The contractor's reports on portions of the contract in which 
animals were used shall contain a certificate stating that the animals 
were cared for in accordance with the principles enunciated in the Guide 
for Care and Use of Laboratory Animals, prepared by the ILAR/NRC, and/or 
in the Animal Welfare Regulations found in 9 CFR parts 1-4.

                             (End of clause)

[80 FR 4215, Jan. 27, 2015]



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

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

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

    (a) Section 6041 of title 26 of the U.S. Code requires EPA to file 
Internal Revenue Service (IRS) Form 1099 with respect to individuals who 
receive payments from EPA under purchase orders or contracts. Section 
6109 of title 26 of the U.S. Code authorizes collection by EPA of the 
social security numbers of such individuals for the purpose of filing 
IRS Form 1099. Social security numbers obtained for this purpose will be 
used by EPA for the sole purpose of filing IRS Form 1099 in compliance 
with section 6041 of title 26 of the U.S. Code.

[[Page 90]]

    (b) If the offeror or quoter is an individual, consultant, or sole 
proprietor and has no Employer Identification Number, insert the 
offeror's or quoter's social security number on the following line.

                           (End of provision)



1552.227-76  Project employee confidentiality agreement.

    As prescribed in 1527.409, insert the following clause:

          Project Employee Confidentiality Agreement (MAY 1994)

    (a) The Contractor recognizes that Contractor employees in 
performing this contract may have access to data, either provided by the 
Government or first generated during contract performance, of a 
sensitive nature which should not be released to the public without 
Environmental Protection Agency (EPA) approval. Therefore, the 
Contractor agrees to obtain confidentiality agreements from all of its 
employees working on requirements under this contract.
    (b) Such agreements shall contain provisions which stipulate that 
each employee agrees that the employee will not disclose, either in 
whole or in part, to any entity external to EPA, the Department of 
Justice, or the Contractor, any information or data (as defined in FAR 
Section 27.401) provided by the Government or first generated by the 
Contractor under this contract, any site-specific cost information, or 
any enforcement strategy without first obtaining the written permission 
of the EPA Contracting Officer. If a contractor, through an employee or 
otherwise, is subpoenaed to testify or produce documents, which could 
result in such disclosure, the Contractor must provide immediate advance 
notification to the EPA so that the EPA can authorize such disclosure or 
have the opportunity to take action to prevent such disclosure. Such 
agreements shall be effective for the life of the contract and for a 
period of five (5) years after completion of the contract.
    (c) The EPA may terminate this contract for convenience, in whole or 
in part, if it deems such termination necessary to prevent the 
unauthorized disclosure of information to outside entities. If such a 
disclosure occurs without the written permission of the EPA Contracting 
Officer, the Government may terminate the contract, for default or 
convenience, or pursue other remedies as may be permitted by law or this 
contract.
    (d) The Contractor further agrees to insert in any subcontract or 
consultant agreement placed hereunder, except for subcontracts or 
consultant agreements for well drilling, fence erecting, plumbing, 
utility hookups, security guard services, or electrical services, 
provisions which shall conform substantially to the language of this 
clause, including this paragraph, unless otherwise authorized by the 
Contracting Officer.
    Alternate I (JAN 2015). Contracts for other than Superfund work 
shall include Alternate I in this clause in lieu of paragraph (d).
    (d) The Contractor agrees to insert in each subcontract or 
consultant agreement placed hereunder provisions which shall conform 
substantially to the language of this clause, including this paragraph 
(d), unless otherwise authorized by the Contracting Officer.

                             (End of clause)

[59 FR 18624, Apr. 19, 1994, as amended at 79 FR 76241, Dec. 22, 2014; 
82 FR 33023, July 19, 2017]



1552.228-70  Insurance liability to third persons.

    As prescribed in 1528.301, insert the following clause:

            Insurance--Liability to Third Persons (OCT 2000)

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

                             (End of clause)

[65 FR 58928, Oct. 3, 2000, as amended at 78 FR 46291, July 31, 2013]

[[Page 91]]



1552.229-70  [Reserved]



1552.232-70  Submission of invoices.

    As prescribed in 1532.908, insert the following clause:

                    Submission of Invoices (JUN 1996)

    In order to be considered properly submitted, an invoice or request 
for contract financing payment must meet the following contract 
requirements in addition to the requirements of FAR 32.905:
    (a) Unless otherwise specified in the contract, an invoice or 
request for contract financing payment shall be submitted as an original 
and five copies. The Contractor shall submit the invoice or request for 
contract financing payment to the following offices/individuals 
designated in the contract: the original and two copies to the 
Accounting Operations Office shown in Block __ on the cover of the 
contract; two copies to the Contracting Officer's Representative (the 
Contracting Officer's Representative may direct one of these copies to a 
separate address); and one copy to the Contracting Officer.
    (b) The Contractor shall prepare its invoice or request for contract 
financing payment on the prescribed Government forms. Standard Forms 
Number 1034, Public Voucher for Purchases and Services other than 
Personal, shall be used by contractors to show the amount claimed for 
reimbursement. Standard Form 1035, Public Voucher for Purchases and 
Services other than Personal--Continuation Sheet, shall be used to 
furnish the necessary supporting detail or additional information 
required by the Contracting Officer. The Contractor may submit self-
designed forms which contain the required information.
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual work 
assignments, the invoice or request for contract financing payment shall 
also include a summary of the current and cumulative amounts claimed by 
cost element for each work assignment and for the contract total, as 
well as any supporting data for each work assignment as identified in 
the instructions.
    (2) The invoice or request for contract financing payment shall 
include current and cumulative charges by major cost element such as 
direct labor, overhead, travel, equipment, and other direct costs. For 
current costs, each major cost element shall include the appropriate 
supporting schedule identified in the invoice preparation instructions. 
Cumulative charges represent the net sum of current charges by cost 
element for the contract period.
    (3) The charges for subcontracts shall be further detailed in a 
supporting schedule showing the major cost elements for each 
subcontract. The degree of detail for any subcontract exceeding $5,000 
is to be the same as that set forth under (c)(2).
    (4) The charges for consultants shall be further detailed in the 
supporting schedule showing the major cost elements of each consultant. 
For current costs, each major cost element of the consulting agreement 
shall also include the supporting schedule identified in the invoice 
preparation instructions.
    (d) Invoices or requests for contract financing payment must clearly 
indicate the period of performance for which payment is requested. 
Separate invoices or requests for contract financing payment are 
required for charges applicable to the basic contract and each option 
period.
    (e)(1) Notwithstanding the provisions of the clause of this contract 
at FAR 52.216-7, Allowable Cost and Payment, invoices or requests for 
contract financing payment shall be submitted once per month unless 
there has been a demonstrated need and Contracting Officer approval for 
more frequent billings. When submitted on a monthly basis, the period 
covered by invoices or requests for contractor financing payments shall 
be the same as the period for monthly progress reports required under 
this contract.
    (2) If the Contracting Officer allows submissions more frequently 
than monthly, one submittal each month shall have the same ending period 
of performance as the monthly progress report.
    (3) Where cumulative amounts on the monthly progress report differ 
from the aggregate amounts claimed in the invoice(s) or request(s) for 
contract financing payments covering the same period, the contractor 
shall provide a reconciliation of the difference as part of the payment 
request.

                             (End of clause)

                         Alternate I (JUN 1996).

    If used in a non-commercial time and materials type contract, 
substitute the following paragraphs (c)(1) and (2) for paragraphs (c)(1) 
and (2) of the basic clause:
    (c)(1) The Contractor shall prepare a contract level invoice or 
request for contract financing payment in accordance with the invoice 
preparation instructions identified as a separate attachment in Section 
J of the contract. If contract work is authorized by individual delivery 
orders, the invoice or request for contract financing payment shall also 
include a summary of the current and cumulative amounts claimed by cost 
element for each delivery order and for the contract total, as well as 
any supporting data for each

[[Page 92]]

delivery order as identified in the instructions.
    (2) The invoice or request for contract financing payment that 
employs a fixed rate feature shall include current and cumulative 
charges by contract labor category and by other major cost elements such 
as travel, equipment, and other direct costs. For current costs, each 
cost element shall include the appropriate supporting schedules 
identified in the invoice preparation instructions.

[61 FR 29317, June 10, 1996, as amended at 78 FR 46291, July 31, 2013; 
81 FR 31528, May 19, 2016]



1552.232-71--1552.232-73  [Reserved]



1552.232-74  Payments--simplified acquisition procedures financing.

    As prescribed in 1532.003, insert the following clause in 
solicitations and orders that will provide simplified acquisition 
procedures financing.

    Payments--Simplified Acquisition Procedures Financing (JUN 2006)

    Simplified acquisition procedures financing in the form of ______ 
[contracting officer insert advance (prior to performance) and/or 
interim (according to payment schedule] payment(s)) will be provided 
under this commercial item order in accordance with the payment schedule 
below. If both advance and interim payments are to be made, the payment 
schedule shown below will specify the type of payment provided for each 
line item.
    The Government shall pay the contractor as follows upon the 
submission of invoices or vouchers approved by the Contracting Officer's 
Representative: ____________ [insert payment schedule].

[71 FR 32284, June 5, 2006, as amended at 78 FR 46291, July 31, 2013]



1552.233-70  Notice of filing requirements for agency protests.

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

      Notice of Filing Requirements for Agency Protests (JUL 1999)

    Agency protests must be filed with the Contracting Officer in 
accordance with the requirements of FAR 33.103 (d) and (e). Within 10 
calendar days after receipt of an adverse Contracting Officer decision, 
the protester may submit a written request for an independent review by 
the Head of the Contracting Activity. This independent review is 
available only as an appeal of a Contracting Officer decision on a 
protest. Accordingly, as provided in 4 CFR 21.2(a)(3), any protest to 
the GAO must be filed within 10 days of knowledge of the initial adverse 
Agency action.

[64 FR 17110, Apr. 8, 1999, as amended at 78 FR 46291, July 31, 2013]



1552.235-70  Screening business information for claims of confidentiality.

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

 Screening Business Information for Claims of Confidentiality (APR 1984)

    (a) Whenever collecting information under this contract, the 
Contractor agrees to comply with the following requirements:
    (1) If the Contractor collects information from public sources, such 
as books, reports, journals, periodicals, public records, or other 
sources that are available to the public without restriction, the 
Contractor shall submit a list of these sources to the appropriate 
program office at the time the information is initially submitted to 
EPA. The Contractor shall identify the information according to source.
    (2) If the Contractor collects information from a State or local 
Government or from a Federal agency, the Contractor shall submit a list 
of these sources to the appropriate program office at the time the 
information is initially submitted to EPA. The Contractor shall identify 
the information according to source.
    (3) If the Contractor collects information directly from a business 
or from a source that represents a business or businesses, such as a 
trade association:
    (i) Before asking for the information, the Contractor shall identify 
itself, explain that it is performing contractual work for the U.S. 
Environmental Protection Agency, identify the information that it is 
seeking to collect, explain what will be done with the information, and 
give the following notice:

[[Page 93]]

    (A) You may, if you desire, assert a business confidentiality claim 
covering part or all of the information. If you do assert a claim, the 
information will be disclosed by EPA only to the extent, and by means of 
the procedures, set forth in 40 CFR part 2, subpart B.
    (B) If no such claim is made at the time this information is 
received by the Contractor, it may be made available to the public by 
the Environmental Protection Agency without further notice to you.
    (C) The contractor shall, in accordance with FAR part 9, execute a 
written agreement regarding the limitations of the use of this 
information and forward a copy of the agreement to the Contracting 
Officer.
    (ii) Upon receiving the information, the Contractor shall make a 
written notation that the notice set out above was given to the source, 
by whom, in what form, and on what date.
    (iii) At the time the Contractor initially submits the information 
to the appropriate program office, the Contractor shall submit a list of 
these sources, identify the information according to source, and 
indicate whether the source made any confidentiality claim and the 
nature and extent of the claim.
    (b) The Contractor shall keep all information collected from 
nonpublic sources confidential in accordance with the clause in this 
contract entitled ``Treatment of Confidential Business Information'' as 
if it had been furnished to the Contractor by EPA.
    (c) The Contractor agrees to obtain the written consent of the 
Contracting Officer, after a written determination by the appropriate 
program office, prior to entering into any subcontract that will require 
the subcontractor to collect information. The Contractor agrees to 
include this clause, including this paragraph (c), and the clause 
entitled ``Treatment of Confidential Business Information'' in all 
subcontracts awarded pursuant to this contract that require the 
subcontractor collect information.

                             (End of clause)



1552.235-71  Treatment of confidential business information.

    As prescribed in 1535.007-70(b), insert the following contract 
clause in all types of contracts when the Contracting Officer has 
determined that in the performance of a contract, EPA may furnish 
confidential business information to the Contractor that EPA obtained 
under the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water 
Pollution Control Act (33 U.S.C. 1251, et seq.), the Safe Drinking Water 
Act (42 U.S.C. 300f et seq.), the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136 et seq.), the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 301 et seq.), the Resource Conservation and 
Recovery Act (42 U.S.C. 6901 et seq.), or the Toxic Substances Control 
Act (15 U.S.C. 2601 et seq.). EPA regulations on confidentiality of 
business information in 40 CFR part 2 subpart B require that the 
Contractor agree to the clause entitled ``Treatment of Confidential 
Business Information'' before any confidential business information may 
be furnished to the Contractor:

        Treatment of Confidential Business Information (APR 1984)

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

[[Page 94]]

Contractor agrees to include this clause, including this paragraph (b), 
in all subcontracts awarded, pursuant to this contract, that require the 
furnishing of confidential business information to the subcontractor.

                             (End of clause)



1552.235-72  [Reserved]



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

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

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

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

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



1552.235-74  [Reserved]



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

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

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

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

                           (End of provision)

[61 FR 14265, Apr. 1, 1996]



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

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

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

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

[[Page 95]]

    (4) The Contractor shall not use any CBI supplied by EPA or obtained 
during performance hereunder to compete with any business to which the 
CBI relates.
    (b) The Contractor agrees to obtain the written consent of the CO, 
after a written determination by the appropriate program office, prior 
to entering into any subcontract that will involve the disclosure of CBI 
by the Contractor to the subcontractor. The Contractor agrees to include 
this clause, including this paragraph (b), in all subcontracts awarded 
pursuant to this contract that require the furnishing of CBI to the 
subcontractor.

                             (End of clause)

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



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

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

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

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

                             (End of clause)

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

[[Page 96]]



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

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

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

    The Contractor shall handle Toxic Substances Control Act (TSCA) 
confidential business information (CBI) in accordance with the contract 
clause entitled ``Treatment of Confidential Business Information'' and 
``Screening Business Information for Claims of Confidentiality.''
    (a) The Project Officer (PO) or his/her designee, after a written 
determination by the appropriate program office, may disclose TSCA CBI 
to the contractor necessary to carry out the work required under this 
contract. The Contractor shall protect all TSCA CBI to which it has 
access (including CBI used in its computer operations) in accordance 
with the following requirements:
    (1) The Contractor and Contractor's employees shall follow the 
security procedures set forth in the TSCA CBI Security Manual. The 
manual may be obtained from the Director, Information Management 
Division (IMD), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency (EPA), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Prior to receipt of TSCA CBI by the Contractor, 
the Contractor shall ensure that all employees who will be cleared for 
access to TSCA CBI have been briefed on the handling, control, and 
security requirements set forth in the TSCA CBI Security Manual.
    (2) The Contractor shall permit access to and inspection of the 
Contractor's facilities in use under this contract by representatives of 
EPA's Assistant Administrator for Administration and Resources 
Management, and the TSCA Security Staff in the OPPT, or by the EPA 
Project Officer.
    (3) The Contractor Document Control Officer (DCO) shall obtain a 
signed copy of EPA Form 7740-6, ``TSCA CBI Access Request, Agreement, 
and Approval,'' from each of the Contractor's employees who will have 
access to the information before the employee is allowed access. In 
addition, the Contractor shall obtain from each employee who will be 
cleared for TSCA CBI access all information required by EPA or the U.S. 
Office of Personnel Management for EPA to conduct a Minimum Background 
Investigation.
    (b) The Contractor agrees that these requirements concerning 
protection of TSCA CBI are included for the benefit of, and shall be 
enforceable by, both EPA and any affected business having a proprietary 
interest in the information.
    (c) The Contractor understands that CBI obtained by EPA under TSCA 
may not be disclosed except as authorized by the Act, and that any 
unauthorized disclosure by the Contractor or the Contractor's employees 
may subject the Contractor and the Contractor's employees to the 
criminal penalties specified in TSCA (15 U.S.C. 2613(d)). For purposes 
of this contract, the only disclosures that EPA authorizes the 
Contractor to make are those set forth in the clause entitled 
``Treatment of Confidential Business Information.''
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in all subcontracts awarded pursuant to 
this contract that require the furnishing of CBI to the subcontractor.
    (e) At the request of EPA or at the end of the contract, the 
Contractor shall return to the EPA PO or his/her designee, all 
documents, logs, and magnetic media which contain TSCA CBI. In addition, 
each Contractor employee who has received TSCA CBI clearance will sign 
EPA Form 7740-18, ``Confidentiality Agreement for Contractor Employees 
Upon Relinquishing TSCA CBI Access Authority.'' The Contractor DCO will 
also forward those agreements to the EPA OPPT/IMD, with a copy to the 
CO, at the end of the contract.
    (f) If, subsequent to the date of this contract, the Government 
changes the security requirements, the CO shall equitably adjust 
affected provisions of this contract, in accordance with the ``Changes'' 
clause, when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and,
    (2) The facts warrant an equitable adjustment.

                             (End of clause)

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



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

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

   Release of Contractor Confidential Business Information (APR 1996)

    (a) The Environmental Protection Agency (EPA) may find it necessary 
to release information submitted by the Contractor either in response to 
this solicitation or pursuant to the provisions of this contract, to 
individuals not employed by EPA. Business information that is ordinarily 
entitled to confidential treatment under existing Agency regulations (40 
CFR part 2) may be included

[[Page 97]]

in the information released to these individuals. Accordingly, by 
submission of this proposal or signature on this contract or other 
contracts, the Contractor hereby consents to a limited release of its 
confidential business information (CBI).
    (b) Possible circumstances where the Agency may release the 
Contractor's CBI include, but are not limited to the following:
    (1) To other Agency contractors tasked with assisting the Agency in 
the recovery of Federal funds expended pursuant to the Comprehensive 
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 
9607, as amended, (CERCLA or Superfund);
    (2) To the U.S. Department of Justice (DOJ) and contractors employed 
by DOJ for use in advising the Agency and representing the Agency in 
procedures for the recovery of Superfund expenditures;
    (3) To parties liable, or potentially liable, for costs under CERCLA 
Sec. 107 (42 U.S.C. Sec. 9607), et al, and their insurers (Potentially 
Responsible Parties) for purposes of facilitating settlement or 
litigation of claims against such parties;
    (4) To other Agency contractors who, for purposes of performing the 
work required under the respective contracts, require access to 
information the Agency obtained under the Clean Air Act (42 U.S.C. 7401 
et seq.); the Federal Water Pollution Control Act (33 U.S.C.1251 et 
seq.); the Safe Drinking Water Act (42 U.S.C. 300f et seq.); the Federal 
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.); the 
Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the 
Toxic Substances Control Act (15 U.S.C. 2601 et seq.); or the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(42 U.S.C. 9601 et seq.);
    (5) To other Agency contractors tasked with assisting the Agency in 
handling and processing information and documents in the administration 
of Agency contracts, such as providing both preaward and post award 
audit support and specialized technical support to the Agency's 
technical evaluation panels;
    (6) To employees of grantees working at EPA under the Senior 
Environmental Employment (SEE) Program;
    (7) To Speaker of the House, President of the Senate, or Chairman of 
a Committee or Subcommittee;
    (8) To entities such as the General Accounting Office, boards of 
contract appeals, and the Courts in the resolution of solicitation or 
contract protests and disputes;
    (9) To Agency contractor employees engaged in information systems 
analysis, development, operation, and maintenance, including performing 
data processing and management functions for the Agency; and
    (10) Pursuant to a court order or court-supervised agreement.
    (c) The Agency recognizes an obligation to protect the contractor 
from competitive harm that may result from the release of such 
information to a competitor. (See also the clauses in this document 
entitled ``Screening Business Information for Claims of 
Confidentiality'' and ``Treatment of Confidential Business 
Information.'') Except where otherwise provided by law, the Agency will 
permit the release of CBI under subparagraphs (1), (3), (4), (5), (6), 
or (9) only pursuant to a confidentiality agreement.
    (d) With respect to contractors, 1552.235-71 will be used as the 
confidentiality agreement. With respect to Potentially Responsible 
Parties, such confidentiality agreements may permit further disclosure 
to other entities where necessary to further settlement or litigation of 
claims under CERCLA. Such entities include, but are not limited to 
accounting firms and technical experts able to analyze the information, 
provided that they also agree to be bound by an appropriate 
confidentiality agreement.
    (e) This clause does not authorize the Agency to release the 
Contractor's CBI to the public pursuant to a request filed under the 
Freedom of Information Act.
    (f) The Contractor agrees to include this clause, including this 
paragraph (f), in all subcontracts at all levels awarded pursuant to 
this contract that require the furnishing of confidential business 
information by the subcontractor.

                             (End of clause)

[61 FR 14267, Apr. 1, 1996]



1552.235-80  Access to confidential business information.

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

         Access to Confidential Business Information (OCT 2000)

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

[[Page 98]]

                             (End of clause)

[65 FR 58928, Oct. 3, 2000]



1552.235-81  Institutional oversight of life sciences dual use research
of concern--Representation.

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

 Institutional Oversight of Life Sciences Dual Use Research of Concern--
                       Representation (JUNE 2016)

    (a) Definitions. As used in this provision--
    Institution means any government agency (Federal, State, tribal, or 
local), academic institution, corporation, company, partnership, 
society, association, firm, sole proprietorship, or other legal entity 
conducting research.
    Life Sciences research means a systematic investigation designed to 
develop or contribute to generalizable knowledge involving living 
organisms (e.g., microbes, human beings, animals, and plants) and their 
products, including all disciplines and methodologies of biology such as 
aerobiology, agricultural science, plant science, animal science, 
bioinformatics, genomics, proteomics, microbiology, synthetic biology, 
virology, molecular biology, environmental science, public health, 
modeling, engineering of living systems, and all applications of the 
biological sciences. The term is meant to encompass the diverse 
approaches to understanding life at the level of ecosystems, 
populations, organisms, organs, tissues, cells, and molecules. Life 
sciences research does not include routine product testing, quality 
control, mapping, collection of general-purpose statistics, routine 
monitoring and evaluation of an operational program, observational 
studies, and the training of scientific and technical personnel.
    (b) Representation. By submission of its offer or quotation, the 
Offeror represents that if it is:
    (1) An institution within the United States that conducts or 
sponsors life sciences research that involves one or more of the agents 
or toxins listed in section 6.2.1 of the ``United States Government 
Policy for Institutional Oversight of Life Sciences Dual Use Research of 
Concern'' (iDURC Policy), even if the research is not supported by 
United States Government funds; or
    (2) An institution outside of the United States that receives funds 
to conduct or sponsor research that involves one or more of the agents 
or toxins listed in section 6.2.1 of the iDURC Policy; then the Offeror 
will comply with the iDURC Policy.
    (c) Resources. Information about dual use research in the life 
sciences, as well as specific details on the iDURC Policy can be found 
on the U.S. Department of Health and Human Services Dual Use Research of 
Concern page: http://www.phe.gov/s3/dualuse/Pages/default.aspx.

                           (End of provision)

[81 FR 24500, Apr. 26, 2016]



1552.235-82  Institutional oversight of life sciences dual use research
of concern.

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

 Institutional Oversight Of Life Sciences Dual Use Research Of Concern 
                               (JUNE 2016)

    (a) Definitions. As used in this clause--
    Institution means any government agency (Federal, State, tribal, or 
local), academic institution, corporation, company, partnership, 
society, association, firm, sole proprietorship, or other legal entity 
conducting research.
    Life Sciences research means a systematic investigation designed to 
develop or contribute to generalizable knowledge involving living 
organisms (e.g., microbes, human beings, animals, and plants) and their 
products, including all disciplines and methodologies of biology such as 
aerobiology, agricultural science, plant science, animal science, 
bioinformatics, genomics, proteomics, microbiology, synthetic biology, 
virology, molecular biology, environmental science, public health, 
modeling, engineering of living systems, and all applications of the 
biological sciences. The term is meant to encompass the diverse 
approaches to understanding life at the level of ecosystems, 
populations, organisms, organs, tissues, cells, and molecules. Life 
sciences research does not include routine product testing, quality 
control, mapping, collection of general-purpose statistics, routine 
monitoring and evaluation of an operational program, observational 
studies, and the training of scientific and technical personnel.
    (b) Compliance. The Contractor agrees that it shall comply with the 
``United States Government Policy for Institutional Oversight of Life 
Sciences Dual Use Research of Concern'' (iDURC Policy) during the period 
of performance of this contract, including all option periods or other 
extensions, if the Contractor:
    (1) Is an institution within the United States that conducts or 
sponsors, or begins to conduct or sponsor life sciences research that 
involves one or more of the agents or toxins listed in Section 6.2.1 of 
the iDURC Policy, even if the research is not supported by United States 
Government funds; or

[[Page 99]]

    (2) Is an institution outside the United States that receives funds 
through this contract to conduct or sponsor research that involves one 
or more of the agents or toxins listed in Section 6.2.1 of the iDURC 
Policy.
    (c) Resources. Information about dual use research in the life 
sciences as well as specific details on the iDURC Policy can be found on 
the U.S. Department of Health and Human Services Dual Use Research of 
Concern page: http://www.phe.gov/s3/dualuse/Pages/default.aspx.

                             (End of clause)

[81 FR 24500, Apr. 26, 2016]



1552.236-70  Samples and certificates.

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

                   Samples and Certificates (APR 1984)

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

                             (End of clause)



1552.237-70  Contract publication review procedures.

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

            Contract Publication Review Procedures (APR 1984)

    (a) Material generated under this contract intended for release to 
the public is subject to the Agency's publication review process in 
accordance with the EPA Order on this subject and the following.
    (b) Except as indicated in paragraph (c) of this contract, the 
Contractor shall not independently publish or print material generated 
under this contract until after completion of the EPA review process. 
The Contracting Officer's Representative will notify the Contractor of 
review completion within __ calendar days after the Contractor's 
transmittal to the Contracting Officer's Representative of material 
generated under this contract. If the Contractor does not receive 
Contracting Officer's Representative notification within this period, 
the Contractor shall immediately notify the Contracting Officer in 
writing.
    (c) The Contractor may publish, in a scientific journal, material 
resulting directly or indirectly from work performed under this 
contract, subject to the following:
    (1) The Contractor shall submit to the Contracting Officer and the 
Contracting Officer's Representative, at least 30 days prior to 
publication, a copy of any paper, article, or other dissemination of 
information intended for publication.
    (2) The Contractor shall include the following statement in a 
journal article which has not been subjected to EPA review: ``Although 
the research described in this article has been funded wholly or in part 
by the United States Environmental Protection Agency contract (number) 
to (Name of Contractor), it has not been subject to the Agency's review 
and therefore does not necessarily reflect the views of the Agency, and 
no official endorsement should be inferred.''
    (3) Following publication of the journal article, the Contractor 
shall submit five copies of the journal article to the Contracting 
Officer's Representative, and one copy to the Contracting Officer.
    (d) If the Government has completed the review process and agreed 
that the contract material may be attributed to EPA, the Contractor 
shall include the following statement in the document:
    This material has been funded wholly or in part by the United States 
Environmental Protection Agency under contract (number) to (name). It 
has been subject to the Agency's review, and it has been approved for 
publication as an EPA document. Mention of trade names or commercial 
products does not constitute endorsement or recommendation for use.
    (e) If the Government has completed the review process, but decides 
not to publish the material, the Contractor may independently publish 
and distribute the material for its own use and its own expense, and 
shall include the following statement in any independent publication:
    Although the information described in this article has been funded 
wholly or in part by the United States Environmental Protection Agency 
under contract (number) to (name), it does not necessarily reflect the 
views of the Agency and no official endorsement should be inferred.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 78 FR 46292, July 31, 2013]

[[Page 100]]



1552.237-71  Technical direction.

    As prescribed in 1537.110, insert a clause substantially the same as 
the following:

                     Technical Direction (AUG 2009)

    (a) Definitions.
    Contracting officer technical representative (COTR), means an 
individual appointed by the contracting officer in accordance with 
Agency procedures to perform specific technical and administrative 
functions.
    Task order, as used in this clause, means work assignment, delivery 
order, or any other document issued by the contracting officer to order 
work under a service contract.
    (b) The Contracting Officer's Representative(s) may provide 
technical direction on contract or work request performance. Technical 
direction includes:
    (1) Instruction to the contractor that approves approaches, 
solutions, designs, or refinements; fills in details; completes the 
general descriptions of work shifts emphasis among work areas or tasks; 
and
    (2) Evaluation and acceptance of reports or other deliverables.
    (c) Technical direction must be within the scope of work of the 
contract and any task order there under. The Contracting Officer's 
Representative(s) does not have the authority to issue technical 
direction which:
    (1) Requires additional work outside the scope of the contract or 
task order;
    (2) Constitutes a change as defined in the ``Changes'' clause;
    (3) Causes an increase or decrease in the estimated cost of the 
contract or task order;
    (4) Alters the period of performance of the contract or task order; 
or
    (5) Changes any of the other terms or conditions of the contract or 
task order.
    (d) Technical direction will be issued in writing or confirmed in 
writing within five (5) days after oral issuance. The contracting 
officer will be copied on any technical direction issued by the 
Contracting Officer's Representative.
    (e) If, in the contractor's opinion, any instruction or direction by 
the Contracting Officer's Representative(s) falls within any of the 
categories defined in paragraph (c) of the clause, the contractor shall 
not proceed but shall notify the contracting officer in writing within 3 
days after receiving it and shall request that the contracting officer 
take appropriate action as described in this paragraph. Upon receiving 
this notification, the contracting officer shall:
    (1) Advise the contractor in writing as soon as practicable, but no 
later than 30 days after receipt of the contractor's notification, that 
the technical direction is within the scope of the contract effort and 
does not constitute a change under the ``Changes'' clause of the 
contract;
    (2) Advise the contractor within a reasonable time that the 
government will issue a written modification to the contract; or
    (3) Advise the contractor that the technical direction is outside 
the scope of the contract and is thereby rescinded.
    (f) A failure of the contractor and contracting officer to agree as 
to whether the technical direction is within the scope of the contract, 
or a failure to agree upon the contract action to be taken with respect 
thereto, shall be subject to the provisions of the clause entitled 
``Disputes'' in this contract.
    (g) Any action(s) taken by the contractor, in response to any 
direction given by any person acting on behalf of the government or any 
government official other than the contracting officer or the 
Contracting Officer's Representative, shall be at the contractor's risk.

                             (End of clause)

[74 FR 37175, July 28, 2009, as amended at 78 FR 46292, July 31, 2013]



1552.237-72  Key personnel.

    As prescribed in 1537.110, insert the following contract clause when 
it is necessary for contract performance to identify Contractor key 
personnel.

                        Key Personnel (APR 1984)

    (a) The Contractor shall assign to this contract the following key 
personnel:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    (b) During the first ninety (90) days of performance, the Contractor 
shall make no substitutions of key personnel unless the substitution is 
necessitated by illness, death, or termination of employment. The 
Contractor shall notify the Contracting Officer within 15 calendar days 
after the occurrence of any of these events and provide the information 
required by paragraph (c) of this clause. After the initial 90-day 
period, the Contractor shall submit the information required by 
paragraph (c) to the Contracting Officer at least 15 days prior to 
making any permanent substitutions.

[[Page 101]]

    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete resumes 
for the proposed substitutes, and any additional information requested 
by the Contracting Officer. Proposed substitutes should have comparable 
qualifications to those of the persons being replaced. The Contracting 
Officer will notify the Contractor within 15 calendar days after receipt 
of all required information of the decision on substitutions. This 
clause will be modified to reflect any approved changes of key 
personnel.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 81 FR 31528, May 19, 2016]



1552.237-73  [Reserved]



1552.237-74  Publicity.

    As prescribed in 1537.110, insert the following contract clause in 
contracts pertaining to the removal or remedial activities under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) (``Super Fund'') program. The term ``on-scene coordinator'' may 
be substituted with ``Contracting Officer's Representative.''

                          Publicity (APR 1984)

    (a) The Contractor agrees to notify and obtain the verbal approval 
of the on-scene coordinator (or Contracting Officer's Representative) 
prior to releasing any information to the news media regarding the 
removal or remedial activities being conducted under this contract.
    (b) It is also agreed that the Contractor shall acknowledge EPA 
support whenever the work funded in whole or in part by this contract is 
publicized in any news media.

                             (End of clause)

[49 FR 8867, Mar. 8, 1984, as amended at 78 FR 46292, July 31, 2013]



1552.237-75  Paperwork Reduction Act.

    As prescribed in 1537.110, insert this contract clause in any 
contract requiring the collection of identical information from ten (10) 
or more public respondents.

                   Paperwork Reduction Act (APR 1984)

    If it is established at award or subsequently becomes a contractual 
requirement to collect identical information from ten (10) or more 
public respondents, the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 
et seq. applies. In that event, the Contractor shall not take any action 
to solicit information from any of the public respondents until notified 
in writing by the Contracting officer that the required Office of 
Management and Budget (OMB) final clearance was received.

                             (End of clause)



1552.237-76  Government-Contractor Relations.

    As prescribed in 1537.110(g), insert the following clause:

               Government-Contractor Relations (JUN 1999)

    (a) The Government and the Contractor understand and agree that the 
services to be delivered under this contract by the contractor to the 
Government are non-personal services and the parties recognize and agree 
that no employer-employee relationship exists or will exist under the 
contract between the Government and the Contractor's personnel. It is, 
therefore, in the best interest of the Government to afford both parties 
a full understanding of their respective obligations.
    (b) Contractor personnel under this contract shall not:
    (1) Be placed in a position where they are under the supervision, 
direction, or evaluation of a Government employee.
    (2) Be placed in a position of command, supervision, administration 
or control over Government personnel, or over personnel of other 
Contractors under other EPA contracts, or become a part of the 
Government organization.
    (3) Be used in administration or supervision of Government 
procurement activities.
    (c) Employee relationship. (1) The services to be performed under 
this contract do not require the Contractor or his/her personnel to 
exercise personal judgment and discretion on behalf of the Government. 
Rather the Contractor's personnel will act and exercise personal 
judgment and discretion on behalf of the Contractor.
    (2) Rules, regulations, directives, and requirements that are issued 
by the U.S. Environmental Protection Agency under its responsibility for 
good order, administration, and security are applicable to all personnel 
who enter the Government installation or who travel on Government 
transportation. This is not to be construed or interpreted to establish 
any degree of Government control that is inconsistent with a non-
personal services contract.

[[Page 102]]

    (d) Inapplicability of employee benefits. This contract does not 
create an employer-employee relationship. Accordingly, entitlements and 
benefits applicable to such relationships do not apply.
    (1) Payments by the Government under this contract are not subject 
to Federal income tax withholdings.
    (2) Payments by the Government under this contract are not subject 
to the Federal Insurance Contributions Act.
    (3) The Contractor is not entitled to unemployment compensation 
benefits under the Social Security Act, as amended, by virtue of 
performance of this contract.
    (4) The Contractor is not entitled to workman's compensation 
benefits by virtue of this contract.
    (5) The entire consideration and benefits to the Contractor for 
performance of this contract is contained in the provisions for payment 
under this contract.
    (e) Notice. It is the Contractor's, as well as, the Government's 
responsibility to monitor contract activities and notify the Contracting 
Officer if the Contractor believes that the intent of this clause has 
been or may be violated.
    (1) The Contractor should notify the Contracting Officer in writing 
promptly, within ____ (to be negotiated and inserted into the basic 
contract at contract award) calendar days from the date of any incident 
that the Contractor considers to constitute a violation of this clause. 
The notice should include the date, nature and circumstance of the 
conduct, the name, function and activity of each Government employee or 
Contractor official or employee involved or knowledgeable about such 
conduct, identify any documents or substance of any oral communication 
involved in the conduct, and the estimate in time by which the 
Government must respond to this notice to minimize cost, delay or 
disruption of performance.
    (2) The Contracting Officer will promptly, within ____ (to be 
negotiated and inserted into the basic contract at contract award) 
calendar days after receipt of notice, respond to the notice in writing. 
In responding, the Contracting Officer will either:
    (i) Confirm that the conduct is in violation and when necessary 
direct the mode of further performance,
    (ii) Countermand any communication regarded as a violation,
    (iii) Deny that the conduct constitutes a violation and when 
necessary direct the mode of further performance; or
    (iv) In the event the notice is inadequate to make a decision, 
advise the Contractor what additional information is required, and 
establish the date by which it should be furnished by the Contractor and 
the date thereafter by which the Government will respond.

                             (End of clause)

[64 FR 30444, June 8, 1999]



1552.242-70  Indirect costs.

    As prescribed in 1542.705-70, insert the following clause in all 
cost-reimbursement and non-commercial time and materials type contracts. 
If ceilings are not being established, enter ``not applicable'' in 
paragraph (c) of the clause.

                        Indirect Costs (SEP 2017)

    (a) In accordance with paragraph (d) of the ``Allowable Cost and 
Payment'' clause, the final indirect cost rates applicable to this 
contract shall be established between the Contractor and the appropriate 
Government representative (EPA, other Government agency, or auditor), as 
provided by FAR 42.703-1(a). EPA's procedures require a Contracting 
Officer determination of indirect cost rates for its contracts. In those 
cases where EPA is the cognizant agency (see FAR 42.705-1), the final 
rate proposal shall be submitted to the cognizant audit activity and to 
the following designated Contracting Officer: U.S. Environmental 
Protection Agency, Manager, Financial Analysis and Oversight Service 
Center, Mail Code 3802R, Policy, Training Oversight Division, 1200 
Pennsylvania Avenue NW., Washington, DC 20460.
    Where EPA is not the cognizant agency, the final rate proposal shall 
be submitted to the above-cited address, to the cognizant audit agency, 
and to the designated Contracting Officer of the cognizant agency. Upon 
establishment of the final indirect cost rates, the Contractor shall 
submit an executed Certificate of Current Cost or Pricing Data (see FAR 
15.406-2) applicable to the data furnished in connection with the final 
rates to the cognizant audit agency. The final rates shall be contained 
in a written understanding between the Contractor and the appropriate 
Government representative. Pursuant to the ``Allowable Cost and 
Payment'' clause, the allowable indirect costs under this contract shall 
be obtained by applying the final agreed upon rate(s) to the appropriate 
bases.
    (b) Until final annual indirect cost rates are established for any 
period, the Government shall reimburse the contractor at billing rates 
established by the appropriate Government representative in accordance 
with FAR 42.704, subject to adjustment when the final rates are 
established. The established billing rates are currently as follows:

[[Page 103]]



----------------------------------------------------------------------------------------------------------------
                           Cost center                                Period           Rate            Base
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    These billing rates may be prospectively or retroactively revised by 
mutual agreement, at the request of either the Government or the 
Contractor, to prevent substantial overpayment or underpayment.
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
clause, ceilings are hereby established on indirect costs reimbursable 
under this contract. The Government shall not be obligated to pay the 
Contractor any additional amount on account of indirect costs in excess 
of the ceiling rates listed below:

----------------------------------------------------------------------------------------------------------------
                           Cost center                                Period           Rate            Base
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

                             (End of clause)

[82 FR 33023, July 19, 2017]



1552.242-72  Financial administrative contracting officer.

    As prescribed in 1542.705 (b), insert the following clause:

         Financial Administrative Contracting Officer (OCT 2000)

    (a) A Financial Administrative Contracting Officer (FACO) is 
responsible for performing certain post-award functions related to the 
financial aspects of this contract when the EPA is the cognizant federal 
agency. These functions include the following duties:
    (1) Review the contractor's compensation structure and insurance 
plan.
    (2) Negotiate advance agreements applicable to treatment of costs 
and to Independent Research & Development/Bid and Proposal costs.
    (3) Negotiate changes to interim billing rates and establish final 
indirect cost rates and billing rates.
    (4) Prepare findings of fact and issue decisions related to 
financial matters under the Disputes clause, if appropriate.
    (5) In connection with Cost Accounting Standards:
    (A) Determine the adequacy of the contractor's disclosure 
statements;
    (B) Determine whether the disclosure statements are in compliance 
with Cost Accounting Standards and FAR part 31;
    (C) Determine the contractor's compliance with Cost Accounting 
Standards and disclosure statements, if applicable; and
    (D) Negotiate price adjustments and execute supplemental agreements 
under the Cost Accounting Standards clauses at FAR 52.230-3, 52.230-4, 
and 52.230-5.
    (6) Review, approve or disapprove, and maintain surveillance of the 
contractor's purchasing system.
    (7) Perform surveillance, resolve issues, and establish any 
necessary agreements related to the contractor's cost/schedule control 
system, including travel policies/procedures, allocation and cost 
charging methodology, timekeeping and labor distribution policies and 
procedures, subcontract payment practices, matters concerning 
relationships between the contractor and its affiliates and 
subsidiaries, and consistency between bid and accounting 
classifications.
    (8) Review, resolve issues, and establish any necessary agreements 
related to the contractor's estimating system.
    (b) The FACO shall consult with the contracting officer whenever 
necessary or appropriate and shall forward a copy of all agreements/
decisions to the contracting officer upon execution.
    (c) The FACO for this contract is:

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

[65 FR 58929, Oct. 3, 2000]



1552.245-70  Government property.

    As prescribed in 1545.107(a), insert a clause substantially the same 
as follows:

                     Government Property (SEP 2009)

    (a) The contractor shall not fabricate or acquire, on behalf of the 
Government, either directly or indirectly through a subcontract, any 
item of property without prior written

[[Page 104]]

approval from the Contracting Officer. If the Contracting Officer 
authorizes the contractor to acquire and/or fabricate equipment for use 
in the performance of this contract, the equipment shall be subject to 
the provisions of the ``Government Property'' clause and listed on the 
contract via contract modification.
    (b) If the Government provides item(s) of Government property to the 
contractor for use in the performance of this contract, this property 
shall be used and maintained by the contractor in accordance with the 
provisions of the ``Government Property'' clause.
    The ``EPA Contract Property Administration Requirements'' provided 
below apply to this contract.

                  U.S. Environmental Protection Agency

              Contract Property Administration Requirements

    1. Purpose. This document sets forth the requirements for the U.S. 
Environmental Protection Agency (EPA) contractors performing Government 
property management responsibilities under EPA contracts. These 
requirements supplement those contained in the Government Property 
clause(s) and Part 45 Government Property of the Federal Acquisition 
Regulation (FAR).
    2. Contract Property Administration (CPAR)
    a. EPA Delegation. EPA delegates all contract property 
administration to the EPA Contract Property Coordinator (CPC). The 
delegations apply to all EPA contracts issued with or that have the 
potential to receive, purchase or acquire Government Property or include 
the Government Property clauses. In addition to administering all 
contract property, the CPC provides technical expertise and assistance 
to the Contracting Officer (CO) and Contracting Officer Technical 
Representative (COTR) relative to Government Property.
    b. DCMA Re-delegation. The CPC may request support for contract 
property management oversight, including property administration and 
plant clearance, from the Defense Contract Management Agency (DCMA). If 
DCMA agrees to provide support, DCMA will notify the contractor of the 
assigned property administrator (PA) and plant clearance officer (PLCO). 
The DCMA PA is available to the contractor for assistance in all matters 
of property administration. Notwithstanding the delegation, as 
necessary, the contractor may contact the EPA CO. In the event of a 
disagreement between the contractor and the DCMA PA, the contractor 
should seek resolution from the CO. Unless, otherwise directed in the 
contract, or this document, all originals of written information or 
reports, except direct correspondence between the contractor and the 
DCMA PA, relative to Government property, should be forwarded to the 
administrative CO assigned to this contract and the CPC.
    c. Disagreements. Notwithstanding the delegation(s), as necessary, 
the contractor may contact the CO. In the event of a disagreement 
between the contractor and the PA or the CPC the contractor should seek 
resolution from the CO.
    3. Requests for Government Property.
    In accordance with FAR 45.102, the contractor shall furnish all 
property required for performing Government contracts. If a contractor 
believes that Government property is required for performance of the 
contract, the contractor shall submit a written request to the CO. At a 
minimum, the request shall contain the following elements:
    a. Contract number for which the property is required.
    b. An item(s) description, quantity and estimated cost.
    c. Certification that no like contractor property exists which could 
be utilized.
    d. A detailed description of the task-related purpose of the 
property.
    e. Explanation of negative impact if property is not provided by the 
Government.
    f. Lease versus purchase analysis shall be furnished with the 
request to acquire property on behalf of the Government, with the 
exception of requests for material purchases. The contractor may not 
proceed with acquisition of property on behalf of the Government until 
receipt of written authorization from the Contracting Officer.
    4. Transfer of Government Property. The Contracting Officer 
initiates the transfer of the government property via a contract 
modification. The transferor (EPA or another contractor) shall provide 
to the transferee, the receiving contractor, the information needed to 
establish and maintain the property records required of FAR 52.245-1, as 
well as all of the applicable data elements required by Attachment 1 of 
this clause. The transferee, the receiving contractor, should perform a 
complete inventory of the property before signing the acceptance 
document for the property. Accountability will transfer to the receiving 
contractor upon receipt and acceptance of the property, in accordance 
with FAR 45.106.
    5. Records of Government Property.
    a. In accordance with FAR 52.245-1, the contractor shall create and 
maintain records of all Government property, regardless of value, 
including property provided to and in the possession of a subcontractor. 
Material provided by the Government or acquired by the contractor and 
billed as a direct charge to the contract is Government property and 
records must be established as such.
    b. The Contractor shall identify all Superfund property and 
designate it as such both on the item and on the Government property 
record. If it is not practicable to tag the item, the contractor shall 
write the ID number on a tag, card or other entity that may be kept with 
the item or in a file.

[[Page 105]]

    c. Support documentation used for posting entries to the property 
record shall provide complete, current and auditable data. Entries shall 
be posted to the record in a timely manner following an action.
    d. For Government vehicles, in addition to the data elements 
required by EPA, the contractor shall also comply with the General 
Services Administration (GSA) and Department of Energy (DOE) record and 
report requirements supplied with all EPA provided motor vehicles. If 
the above requirements were not provided with the vehicle, the 
contractor shall notify the designated CPC and the Fleet Manager.
    e. When Government property is disclosed to be in the management 
and/or control of the contractor but not provided under any contract, 
the contractor shall record and report the property in accordance with 
FAR 52.245-1.
    6. Inventories of Government Property. The contractor shall conduct 
a complete physical inventory of EPA property at least once per year. 
The contractor shall report the results of the inventory, including any 
discrepancies, to the CO. Reconciliation of discrepancies shall be 
completed in accordance with the schedule negotiated with the CO. See 
section 10 herein, Contract Closeout, for information on final 
inventories.
    7. Reports of Government Property. EPA requires an annual summary 
report, for each contract, by contract number, of Government property in 
the contractor's possession. The annual summary is due as of September 
30th of each year, and upon contract termination or expiration.
    a. For each classification listed on the EPA Property Report form, 
with the exception of material, the contractor shall provide the total 
acquisition cost and total quantity. If there are zero items in a 
classification, or if there is an ending balance of zero, the 
classification must be listed with zeros in the quantity and acquisition 
cost columns.
    b. For material, the contractor shall provide the total acquisition 
cost only.
    c. Property classified as Plant Equipment, Superfund and Special 
Test Equipment must be reported on two separate lines. The first line 
shall include the total acquisition cost and quantity of all items or 
systems with a unit acquisition cost of $25,000 or more. The second line 
shall include the total acquisition cost and quantity of all items with 
a unit acquisition cost of less than $25,000.
    d. For items comprising a system, which is defined as ``a group of 
interacting items functioning as a complex whole,'' the contractor may 
maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the annual report of Government property the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.
    e. The reports are to be received at EPA by the CPC by October 5th 
of each year.
    f. Distribution shall be as follows:

Original to: CPC
One copy: CO

    g. Contractors are required to comply with GSA and DOE special 
reporting requirements for motor vehicles. A statement of these 
requirements will be provided by the EPA Facility Management and 
Services Division (FMSD) concurrent with receipt of each vehicle.
    h. The contractor shall provide detailed reports on an as-needed 
basis, as may be requested by the CO or the CPC.
    8. Disposition of Government Property. The disposition process is 
composed of three distinct phases: identification, reporting, and final 
disposition.
    a. Identification. The disposition process begins with the 
contractor identifying Government property that is no longer required 
for contract performance. Effective contract property management systems 
provide for identification of excess as it occurs. Once Government 
property has been determined to be excess to the accountable contract, 
it must be screened against the contractor's other EPA contracts for 
further use. If the property may be reutilized, the contractor shall 
notify the CO in writing. Government property will be transferred via 
contract modifications to other contracts only when the COs on both the 
current contract and the receiving contract authorize the transfer.
    b. Reporting.
    (i) EPA. Government property shall be reported in accordance with 
FAR 52.245-1. The Standard Form, SF 1428, Inventory Disposal Schedule, 
provides the format for reporting excess Government property. 
Instructions for completing and when to use the form may be found at FAR 
52.245-1(j). Forward the completed SF 1428 to the CPC. The SF 1428 is 
available at http://www.arnet.gov/far/current/html/FormsStandard54.html. 
Superfund property must contain a Superfund notification and the 
following language must be displayed on the form: ``Note to CO: 
Reimbursement to the EPA Superfund is required.''
    (ii) DCMA. If the EPA contract has been re-delegated to DCMA, the 
excess items will be entered into the Plant Clearance Automated 
Reutilization Screening System (PCARSS). Access and information 
pertaining to this system may be addressed to the DCMA Plant Clearance 
Officer (PLCO).
    c. Disposition Instructions.
    (i) Retention. When Government property is identified as excess, the 
CO may direct the contractor in writing to retain all or part of the 
excess Government Property under the current contract for possible 
future requirements.

[[Page 106]]

    (ii) Return to EPA. When Government property is identified as 
excess, the CO may direct the contractor in writing to return those 
items to EPA inventory. The contractor shall ship/deliver the property 
in accordance with the instructions provided by the CO.
    (iii) Transfer. When Government property is identified as excess, 
the CO may direct the contractor in writing to transfer the property to 
another EPA contractor. The contractor shall transfer the property by 
shipping it in accordance with the instructions provided by the CO. To 
effect transfer of accountability, the contractor shall provide the 
recipient of the property with the applicable data elements set forth in 
Attachment 1 of this clause.
    (iv) Sale. If GSA or the DCMA PLCO conducts a sale of the excess 
Government property, the contractor shall allow prospective bidders 
access to property offered for sale.
    (v) Abandonment. Abandoned property must be disposed of in a manner 
that does not endanger the health and safety of the public. If the 
contract is delegated to DCMA and the contractor has input EPA property 
into the PCARSS system, the EPA Property Utilization Officer (PUO) shall 
notify the CO. The CO shall notify the contractor in writing of those 
items EPA would like to retain, have returned or transferred to another 
EPA contractor. The contractor shall notify the DCMA PLCO and request 
withdrawal of those items from the inventory schedule. The contractor 
shall update the Government property record to indicate the disposition 
of the item and to close the record. The contractor shall also obtain 
either a signed receipt or proof of shipment from the recipient. The 
contractor shall notify the CO when all actions pertaining to 
disposition have been completed. The contractor shall complete an EPA 
Property report with changes, to include supporting documentation of 
completed disposition actions and submit it to the CPC.
    9. Decontamination. In addition to the requirements of the 
``Government Property'' clause and prior to performing disposition of 
any EPA Government Property, the contractor shall certify in writing 
that the property is free from contamination by any hazardous or toxic 
substances.
    10. Contract Closeout. The contractor shall complete a physical 
inventory of all Government property at contract completion and the 
results, including any discrepancies, shall be reported to the CO. If 
the contract is delegated to DCMA, the physical inventory report will be 
submitted to the EPA CO and a copy submitted to the DCMA PA. In the case 
of a terminated contract, the contractor shall comply with the inventory 
requirements set forth in the applicable termination clause. The results 
of the inventory, as well as a detailed inventory listing, must be 
forwarded to the CO and if delegated, a copy to the DCMA PA. In order to 
expedite the disposal process, contractors may be required to, or may 
elect to submit to the CPC, an inventory schedule for disposal purposes 
up to six (6) months prior to contract completion. If such an inventory 
schedule is prepared, the contractor must indicate the earliest date 
that each item may be disposed. The contractor shall update all property 
records to show disposal action. The contractor shall notify the CO, 
and, if delegated, the DCMA PA, in writing, when all work has been 
completed under the contract and all Government property accountable to 
the contract has been disposed. The contractor shall complete a FINAL 
EPA Property report with all supporting documentation to the CPC.

                              Attachment 1

    Required Data Element--In addition to the requirements of FAR 
52.245-1(f)(vi), Reports of Government Property, the contractor is 
required to maintain, and report the following data elements for EPA 
Government property (all elements are not applicable to material): Name 
and address of the administrative Contracting Officer; Name of the 
contractor representative; Business type; Name and address of the 
contract property coordinator; Superfund (Yes/No); No. of Subcontractor/
Alternate Locations.
    Note: For items comprising a system which is defined as, ``a group 
of interacting items functioning as a complex whole,'' the contractor 
may maintain the record as a system noting all components of the system 
under the main component or maintain individual records for each item. 
However, for the Annual Report of Government Property, the components 
must be reported as a system with one total dollar amount for the 
system, if that system total is $25,000 or more.

                             (End of clause)

[74 FR 47110, Sept. 15, 2009, as amended at 78 FR 46292, July 31, 2013]



1552.245-71  Government-furnished data.

    As prescribed in 1545.107(b), insert the following contract clause 
in any contract that the Government is to furnish the Contractor data. 
Identify in the clause the data to be provided.

                  Government-Furnished Data (SEP 2009)

    (a) The Government shall deliver to the Contractor the Government-
furnished data described in the contract. If the data, suitable for its 
intended use, is not delivered to the Contractor, the Contracting 
Officer shall

[[Page 107]]

equitably adjust affected provisions of this contract in accordance with 
the ``Changes'' clause when:
    (1) The Contractor submits a timely written request for an equitable 
adjustment; and
    (2) The facts warrant an equitable adjustment.
    (b) Title to Government-furnished data shall remain in the 
Government.
    (c) The Contractor shall use the Government-furnished data only in 
connection with this contract.
    (d) The following data will be furnished to the Contractor on or 
about the time indicated:

                             (End of clause)

[74 FR 47112, Sept. 15, 2009, as amended at 78 FR 46292, July 31, 2013]



PART 1553_FORMS--Table of Contents



Sec.
1553.000 Scope of part.

                  Subpart 1553.2_Prescription of Forms

1553.213 Simplified acquisition procedures.
1553.213-70 EPA Form 1900-8, Procurement Request/Order.
1553.216 Types of contracts.
1553.216-70 EPA Form 1900-41A, CPAF Contract Summary of Significant 
          Performance Observation.
1553.216-71 EPA Form 1900-41B, CPAF Contract Individual Performance 
          Event.
1553.232 Contract financing.
1553.232-70 EPA Form 1900-3, Assignee's Release.
1553.232-71 EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates, 
          Credits and Other Amounts.
1553.232-72 EPA Form 1900-5, Contractor's Assignment of Refunds, 
          Rebates, and Credits.
1553.232-73 EPA Form 1900-6, Contractor's Release.
1553.232-74 EPA Form 1900-10, Contractor's Cumulative Claim and 
          Reconciliation.
1553.232-75 EPA Form 1900-68, notice of contract costs suspended and/or 
          disallowed.
1553.232-76 [Reserved]

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

    Source: 49 FR 8886, Mar. 8, 1984, unless otherwise noted.

    Editorial Note: Forms referenced in part 1553 do not appear in the 
Code of Federal Regulations.



1553.000  Scope of part.

    This part prescribes Agency forms for use in acquisitions and 
contains requirements and information generally applicable to the forms.



                  Subpart 1553.2_Prescription of Forms



1553.213  Simplified acquisition procedures.



1553.213-70  EPA Form 1900-8, Procurement Request/Order.

    As prescribed in 1513.505-2, EPA Form 1900-8 may be used in lieu of 
Optional Forms 347 and 348 for individual purchases.



1553.216  Types of contracts.



1553.216-70  EPA Form 1900-41A, CPAF Contract Summary of Significant
Performance Observation.

    As prescribed in 1516.404-278, EPA Form 1900-41A shall be used to 
document significant performance observations under CPAF contracts.



1553.216-71  EPA Form 1900-41B, CPAF Contract Individual Performance Event.

    As prescribed in 1516.404-278, EPA Form 1900-41B shall be used to 
document individual performance events under CPAF contracts.



1553.232  Contract financing.



1553.232-70  EPA Form 1900-3, Assignee's Release.

    As prescribed in 1532.805-70(a), the EPA Form 1900-3 is required to 
be submitted by the assignee for cost-reimbursement contracts prior to 
final payment under the contract.



1553.232-71  EPA Form 1900-4, Assignee's Assignment of Refunds, Rebates,
Credits and Other Amounts.

    As prescribed in 1532.805-70(b), the EPA Form 1900-4 must accompany 
the assignee's release prior to final payment under cost-reimbursement 
contracts.



1553.232-72  EPA Form 1900-5, Contractor's Assignment of Refunds, Rebates,
and Credits.

    As prescribed in 1532.805-70(c), the EPA Form 1900-5 must be 
prepared by the Contractor prior to final payment under cost-
reimbursement contracts

[[Page 108]]

and must accompany the Contractor's release.



1553.232-73  EPA Form 1900-6, Contractor's Release.

    As prescribed in 1532.805-70(d), the EPA Form 1900-6 must be 
submitted by the Contractor under cost-reimbursement contracts prior to 
final payment thereunder.



1553.232-74  EPA Form 1900-10, Contractor's Cumulative Claim and 
Reconciliation.

    As prescribed in 1532.170(a), the EPA Form 1900-10 shall be used for 
an accounting of the cumulative charges and costs for cost-reimbursement 
contracts from the inception of the contract to completion. It shall be 
submitted by the Contractor along with the completion voucher.



1553.232-75  EPA Form 1900-68, notice of contract costs suspended
and/or disallowed.

    As prescribed in 1532.170(b), the Contracting Officer shall insert 
EPA Form 1900-68 in all cost-reimbursement type and fixed-rate type 
contracts.

[61 FR 29318, June 10, 1996]



1553.232-76  [Reserved]

                       PARTS 1554	1599 [RESERVED]

[[Page 109]]



  CHAPTER 16--OFFICE OF PERSONNEL MANAGEMENT FEDERAL EMPLOYEES HEALTH 
                     BENEFITS ACQUISITION REGULATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1600

[Reserved]

1601            Federal Acquisition Regulations System......         111
1602            Definitions of words and terms..............         112
1603            Improper business practices and personal 
                    conflicts of interest...................         116
1604            Administrative matters......................         117
                   SUBCHAPTER B--ACQUISITION PLANNING
1605            Publicizing contract actions................         119
1606            Competition requirements....................         119
1609            Contractor qualifications...................         119
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1614            Sealed bidding..............................         123
1615            Contracting by negotiation..................         123
1616            Types of contracts..........................         127
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1622            Application of labor laws to Government 
                    acquisitions............................         129
1624            Protection of privacy and freedom of 
                    information.............................         129
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1629            Taxes.......................................         130
1631            Contract cost principles and procedures.....         130
1632            Contract financing..........................         135
1633

[Reserved]

                  SUBCHAPTER G--CONTRACT ADMINISTRATION
1642            Contract administration.....................         137

[[Page 110]]

1643            Contract modifications......................         140
1644            Subcontracting policies and procedures......         140
1645            Government property.........................         141
1646            Quality assurance...........................         141
1649            Termination of contracts....................         141
                     SUBCHAPTER H--CLAUSES AND FORMS
1652            Contract clauses............................         143
1653            Forms.......................................         167
1699            Cost accounting standards...................         167

[[Page 111]]



                          SUBCHAPTER A_GENERAL



                          PART 1600 [RESERVED]



PART 1601_FEDERAL ACQUISITION REGULATIONS SYSTEM--Table of Contents



               Subpart 1601.1_Purpose, Authority, Issuance

Sec.
1601.101 Purpose.
1601.102 Authority.
1601.103 Applicability.
1601.104 Issuance.
1601.104-1 Publication and code arrangement.
1601.104-2 Arrangement of regulation.
1601.106 OMB approval under the Paperwork Reduction Act.

          Subpart 1601.3_Agency Acquisition Regulation (FEHBAR)

1601.301 Policy.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16037, May 1, 1987, unless otherwise noted.



               Subpart 1601.1_Purpose, Authority, Issuance



1601.101  Purpose.

    (a) This subpart establishes chapter 16, Office of Personnel 
Management Federal Employees Health Benefits Acquisition Regulation, 
within title 48, the Federal Acquisition Regulation System, of the Code 
of Federal Regulations. The short title of this regulation shall be 
FEHBAR.
    (b) The purpose of the FEHBAR is to implement and supplement the 
Federal Acquisition Regulation (FAR) specifically for acquiring and 
administering contracts with health insurance carriers in the Federal 
Employees Health Benefits Program (FEHBP).



1601.102  Authority.

    (a) The FEHBAR is issued by the Director of the Office of Personnel 
Management in accordance with the authority of 5 U.S.C. chapter 89 and 
other applicable law and regulation.
    (b) The FEHBAR does not replace or incorporate regulations found at 
5 CFR part 890, which provides the substantive policy guidance for 
administration of the FEHBP under 5 U.S.C. Chapter 89. The following is 
the order of precedence in interpreting a contract provision under the 
FEHBP:
    (1) 5 U.S.C. Chapter 89;
    (2) 5 CFR part 890;
    (3) 48 CFR Chapters 1 and 16;
    (4) The FEHBP contract.

[52 FR 16037, May 1, 1987, as amended at 59 FR 14764, Mar. 30, 1994]



1601.103  Applicability.

    The FAR is generally applicable to contracts negotiated in the FEHBP 
pursuant to 5 U.S.C. chapter 89. The FEHBAR implements and supplements 
the FAR where necessary to identify basic and significant acquisition 
policies unique to the FEHBP.



1601.104  Issuance.



1601.104-1  Publication and code arrangement.

    (a) The FEHBAR and its subsequent changes are published in
    (1) Daily issues of the Federal Register; and
    (2) Cumulative form of the Code of Federal Regulations.
    (b) The FEHBAR is issued as chapter 16 of title 48 of the Code of 
Federal Regulations.



1601.104-2  Arrangement of regulation.

    (a) General. The FEHBAR conforms with the arrangement and numbering 
system prescribed by FAR 1.104. However, when a FAR part or subpart is 
adequate for use without further OPM implementation or supplementation, 
there will be no corresponding FEHBAR part, subpart, etc. The FEHBAR is 
to be used in conjunction with the FAR and the order for use is:
    (1) FAR;
    (2) FEHBAR.
    (b) Citation. (1) In formal documents, such as legal briefs, 
citation of chapter 16 material that has been published in the Federal 
Register will be to title 48 of the Code of Federal Regulations.
    (2) In informal documents, any section of chapter 16 may be 
identified as

[[Page 112]]

``FEHBAR'' followed by the section number.



1601.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to obtain approval from the Office of Management and 
Budget (OMB) before collecting information from ten or more members of 
the public. The information collection and recordkeeping requirements 
contained in this regulation have been approved by the OMB. The 
following OMB control numbers apply.

------------------------------------------------------------------------
                         Provision                           Control No.
------------------------------------------------------------------------
FEHBAR 1604.705............................................    3206-0145
FAR 9.1....................................................    3206-0145
------------------------------------------------------------------------


[52 FR 16037, May 1, 1987. Redesignated at 70 FR 31378, June 1, 2005]



          Subpart 1601.3_Agency Acquisition Regulation (FEHBAR)



1601.301  Policy.

    (a) Procedures, contract clauses, and other aspects of the 
acquisition process for contracts in the FEHBP shall be consistent with 
the principles of the FAR. Changes to the FAR that are otherwise 
authorized by statute or applicable regulation, dictated by the 
practical realities associated with the unique nature of health care 
procurements, or necessary to satisfy specific needs of the Office of 
Personnel Management shall be implemented as amendments to the FEHBAR 
and published in the Federal Register, or as deviations to the FAR in 
accordance with FAR subpart 1.4.
    (b) Internal procedures, instructions, and guides that are necessary 
to clarify or implement the FEHBAR within OPM may be issued by agency 
officials specifically designated by the Director, OPM. Normally, such 
designations will be specified in the OPM Administrative Manual, which 
is routinely available to agency employees and will be made available to 
interested outside parties upon request. Clarifying or implementing 
procedures, instructions, and guides issued pursuant to this section of 
the FEHBAR must--
    (1) Be consistent with the policies and procedures contained in this 
regulation as implemented and supplemented from time to time; and
    (2) Follow the format, arrangement, and numbering system of this 
regulation to the extent practicable.



PART 1602_DEFINITIONS OF WORDS AND TERMS--Table of Contents



Sec.
1602.000-70 Scope of part.

                Subpart 1602.1_Definitions of FEHBP Terms

1602.170 Definition of terms.
1602.170-1 Carrier.
1602.170-2 Community rate.
1602.170-3 Comprehensive medical plan.
1602.170-4 Contractor.
1602.170-5 Cost or pricing data.
1602.170-6 Director.
1602.170-7 Experience rate.
1602.170-8 FEHBP.
1602.170-9 Health benefits plan.
1602.170-10 Letter of credit.
1602.170-11 Negotiated benefits contracts.
1602.170-12 OPM.
1602.170-13 Similarly sized subscriber groups.
1602.170-14 FEHB-specific medical loss ratio threshold calculation.
1602.170-15 Subcontractor.
1602.170-16 Large Provider Agreement.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16038, May 1, 1987, unless otherwise noted.



1602.000-70  Scope of part.

    This part defines words and terms commonly used in this regulation.



                Subpart 1602.1_Definitions of FEHBP Terms



1602.170  Definition of terms.

    In this chapter, unless otherwise indicated, the following terms 
have the meaning set forth in this subpart.



1602.170-1  Carrier.

    Carrier means a voluntary association, corporation, partnership, or 
other nongovernmental organization which is lawfully engaged in 
providing, delivering, paying for, or reimbursing the cost of health 
care services under group insurance policies or contracts,

[[Page 113]]

medical or hospital service agreements, membership or subscription 
contracts, including a health maintenance organization, a nonprofit 
hospital and health service corporation, or any other entity providing a 
plan of health insurance, health benefits or health services, in 
consideration of premiums or other periodic charges payable to the 
carrier.

[62 FR 47573, Sept. 10, 1997]



1602.170-2  Community rate.

    (a) Community rate means a rate of payment based on a per member per 
month capitation rate or its equivalent that applies to a combination of 
the subscriber groups for a comprehensive medical plan carrier. 
References in this subchapter to ``a combination of cost and price 
analysis'' relating to the applicability of policy and contract clauses 
refer to comprehensive medical plan carriers using community rates.
    (b) Adjusted community rate means a community rate which has been 
adjusted for expected use of medical resources of the FEHBP group. An 
adjusted community rate is a prospective rate and cannot be 
retroactively revised to reflect actual experience, utilization, or 
costs of the FEHBP group, except as described in Sec.  1615.402(c)(4).

[55 FR 27414, July 2, 1990, as amended at 62 FR 47573, Sept. 10, 1997; 
76 FR 38284, June 29, 2011]



1602.170-3  Comprehensive medical plan.

    Comprehensive Medical Plan means a plan as defined under 5 U.S.C. 
8903(4).



1602.170-4  Contractor.

    Contractor means carrier.



1602.170-5  Cost or pricing data.

    (a) Experience-rated carriers. Cost or pricing data for experience-
rated carriers includes:
    (1) Information such as claims data;
    (2) Actual or negotiated benefits payments made to providers of 
medical services for the provision of healthcare, such as capitation not 
adjusted for specific groups, including mental health benefits 
capitation rates, per diems, and Diagnostic Related Group (DRG) 
payments;
    (3) Cost data;
    (4) Utilization data; and
    (5) Administrative expenses and retentions, including capitated 
administrative expenses and retentions.
    (b) Community rated carriers. Cost or pricing data for community 
rated carriers is the specialized rating data used by carriers in 
computing a rate that is appropriate for the Federal group and similarly 
sized subscriber groups (SSSGs). Such data include, but are not limited 
to, capitation rates; prescription drug, hospital, and office visit 
benefits utilization data; trend data; actuarial data; rating 
methodologies for other groups; standardized presentation of the 
carrier's rating method (age, sex, etc.) showing that the factor 
predicts utilization; tiered rates information; ``step-up'' factors 
information; demographics such as family size; special benefit loading 
capitations; and adjustment factors for capitation. After the 2012 plan 
year, reconciled rates for community rated carriers, other than those 
required by state law to use Traditional Community Rating (TCR), will be 
required to meet an FEHB-specific medical loss ratio threshold published 
annually in OPM's rate instructions to FEHB carriers.

[62 FR 47574, Sept. 10, 1997, as amended at 70 FR 31378, June 1, 2005; 
76 FR 38285, June 29, 2011]



1602.170-6  Director.

    Director means the Director of the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-7  Experience-rate.

    Experience-rate means a rate for a given group that is the result of 
that group's actual paid claims, administrative expenses (including 
capitated administrative expenses), retentions, and estimated claims 
incurred but not reported, adjusted for benefit modifications, 
utilization trends, and economic trends. Actual paid claims include any 
actual or negotiated benefits payments made to providers of services for 
the provision of healthcare such as capitation not adjusted for specific 
groups,

[[Page 114]]

including mental health benefits capitation rates, per diems, and DRG 
payments.

[70 FR 31378, June 1, 2005]



1602.170-8  FEHBP.

    FEHBP means the Federal Employees Health Benefits Program.

[52 FR 16038, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-9  Health benefits plan.

    Health benefits plan means a group insurance policy, contract, 
medical or hospital service agreement, membership or subscription 
contract, or similar group arrangements provided by a carrier for the 
purpose of providing, arranging for, delivering, paying for, or 
reimbursing any of the costs of health care services.

[62 FR 47574, Sept. 10, 1997]



1602.170-10  Letter of credit.

    Letter of credit means the method by which certain carriers, and 
their underwriters if authorized, receive recurring premium payments and 
contingency reserve payments by drawing against a commitment (certified 
by a responsible OPM official) which specifies a dollar amount 
available. For each carrier participating in the letter of credit 
arrangement for payment under this part, the terms ``carrier reserves,'' 
and ``special reserves'' include any balance in the carrier's letter of 
credit account.

[53 FR 51783, Dec. 23, 1988, as amended at 57 FR 14359, Apr. 20, 1992. 
Redesignated at 62 FR 47574, Sept. 10, 1997]



1602.170-11  Negotiated benefits contracts.

    Negotiated benefits contracts are FEHBP contracts in which benefits 
provided and subscription income are based on either community rating or 
experience rating.

[62 FR 47574, Sept. 10, 1997]



1602.170-12  OPM.

    OPM means the Office of Personnel Management.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988 
and further redesignated at 62 FR 47574, Sept. 10, 1997]



Sec.  1602.170-13  Similarly sized subscriber groups.

    (a) A Similarly sized subscriber group (SSSG) is a non-FEHB employer 
group that:
    (1) As of the date specified by OPM in the rate instructions, has a 
subscriber enrollment closest to the FEHBP subscriber enrollment;
    (2) Uses traditional community rating; and,
    (3) Meets the criteria specified in the rate instructions issued by 
OPM.
    (b) Any group with which an entity enters into an agreement to 
provide health care services is a potential SSSG (including groups that 
are traditional community rated and covered by separate lines of 
business, government entities, groups that have multi-year contracts, 
and groups having point-of-service products) except as specified in 
paragraph (c) of this section.
    (1) An entity's subscriber groups may be included as an SSSG if the 
entity is any of the following:
    (i) The carrier;
    (ii) A division or subsidiary of the carrier;
    (iii) A separate line of business or qualified separate line of 
business of the carrier; or
    (iv) An entity that maintains a contractual arrangement with the 
carrier to provide healthcare benefits.
    (2) A subscriber group covered by an entity meeting any of the 
criteria under paragraph (b)(1) of this section may be included for 
comparison as a SSSG if the entity meets any of the following criteria:
    (i) It reports financial statements on a consolidated basis with the 
carrier; or
    (ii) Shares, delegates, or otherwise contracts with the carrier, any 
portion of its workforce that involves the management, design, pricing, 
or marketing of the healthcare product.
    (c) The following groups must be excluded from SSSG consideration:
    (1) Groups the carrier rates by the method of retrospective 
experience rating;
    (2) Groups consisting of the carrier's own employees;
    (3) Medicaid groups, Medicare-only groups, and groups that receive 
only

[[Page 115]]

excepted benefits as defined at 26 U.S.C. 9832(c);
    (4) A purchasing alliance whose rate-setting is mandated by the 
State or local government;
    (5) Administrative Service Organizations (ASOs);
    (6) Any other group excluded from consideration as specified in the 
rate instructions issued by OPM.
    (d) OPM shall determine the FEHBP rate by selecting the lowest rate 
derived by using rating methods consistent with those used to derive the 
SSSG rate.
    (e) In the event that a State-mandated TCR carrier has no SSSG, then 
it will be subject to the FEHB specific MLR requirement.

[80 FR 32859, June 10, 2015]



1602.170-14  FEHB-specific medical loss ratio threshold calculation.

    (a) Medical Loss Ratio (MLR) means the ratio of plan incurred 
claims, including the carrier's expenditures for activities that improve 
health care quality, to total premium revenue determined by OPM, as 
defined by the Department of Health and Human Services in 45 CFR part 
158.
    (b) The FEHB-specific MLR will be calculated on an annual basis. 
This FEHB-specific MLR will be measured against an FEHB-specific MLR 
threshold to be put forth by OPM no later than 12 calendar months before 
the beginning of plan years 2014 and beyond. OPM will publish the FEHB-
specific MLR threshold no later than 8 months before the beginning of 
plan year 2013.
    (c) In place of the credibility adjustment at 45 CFR 158.230-
158.232, OPM will set a separate credibility adjustment to account for 
the special circumstances of small FEHB plans in annual rate 
instructions to carriers.

[77 FR 19524, Apr. 2, 2012, as amended at 80 FR 32860, June 10, 2015]



1602.170-15  Subcontractor.

    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor, except for providers of direct medical services or 
supplies pursuant to the Carrier's health benefits plan.

[52 FR 16038, May 1, 1987. Redesignated at 53 FR 51783, Dec. 23, 1988, 
and further redesignated at 55 FR 27414, July 2, 1990; 62 FR 47574, 
Sept. 10, 1997 and 76 FR 38285, June 29, 2011]



1602.170-16  Large Provider Agreement.

    (a) Large Provider Agreement means an agreement between--
    (1) An FEHB carrier, at least 25 percent of which total contracts 
are FEHB enrollee contracts, and
    (2) A vendor of services or supplies such as mail order pharmacy 
services, pharmacy benefit management services, mental health and/or 
substance abuse management services, preferred provider organization 
services, utilization review services, and/or large case or disease 
management services. This representative list includes organizations 
that own or contract with direct providers of healthcare or supplies, or 
organizations that process claims or manage patient care. A hospital is 
not considered to be a vendor for purposes of this chapter.
    (i) Where the total costs charged to the FEHB carrier for a contract 
term for FEHB members, including benefits and services, are reasonably 
expected to exceed 5 percent of the carrier's total FEHB benefits costs, 
or
    (ii) Where the total administrative costs charged to the FEHB 
carrier for the contract term for FEHB members are reasonably expected 
to exceed 5 percent of the carrier's total FEHB administrative costs 
(applicable to agreements where the provider is not responsible for FEHB 
benefits costs).
    (3) As used in this section, the term ``carrier'' does not include 
local health plans that serve under an umbrella arrangement with an FEHB 
carrier.
    (b) The FEHB Program Annual Accounting Statement for the FEHB Plan 
for the prior contract year will be used to determine the 5 percent 
threshold under Large Provider Agreements.
    (c) Large Provider Agreements based on cost analysis are subject to 
the provisions of FAR 52.215-2, ``Audit and Records-Negotiation.''
    (d) Large Provider Agreements based on price analysis are subject to 
the

[[Page 116]]

provisions of 48 CFR 1646.301 and 1652.246-70.

[70 FR 31379, June 1, 2005. Redesignated at 76 FR 38285, June 29, 2011]



PART 1603_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
--Table of Contents



      Subpart 1603.70_Misleading, Deceptive, or Unfair Advertising

Sec.
1603.7001 Policy.
1603.7002 Additional guidelines.
1603.7003 Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.



      Subpart 1603.70_Misleading, Deceptive, or Unfair Advertising



1603.7001  Policy.

    (a) OPM prepares and distributes or makes available to Federal 
employees and annuitants a comparison booklet which presents summary 
information and a benefits brochure which details benefits, limitations, 
and premium rates for all participating plans. OPM does not encourage, 
support, or reimburse participating carriers for the costs of 
advertisements. However, while OPM believes that advertising is 
unnecessary, it recognizes that the decision to use advertising rests 
with each carrier.
    (b) OPM discourages advertising that is misleading or deceptive. 
This includes advertising that is directed at other carriers' plans 
participating in the Program and which uses incomplete or inappropriate 
comparisons or disparaging or minimizing techniques. Such unfair 
practices are prejudicial to the interests of the vast majority of 
carriers whose advertising is fair and accurate.
    (c) Failure to conform to the requirements of this subpart shall be 
a material breach of the contract and may result in withdrawal of 
approval to continue participation in the FEHB Program.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1603.7002  Additional guidelines.

    Any advertisements which identify a carrier's participation in the 
FEHBP shall--
    (a) Be limited to the merits of the carrier's FEHBP plan and shall 
be limited to factual statements of the benefits and rates offered by 
that plan. The official document for benefit and rate comparisons among 
FEHBP plans is the comparison chart issued by OPM.
    (b) Not use the FEHBP logo.
    (c) Recognize that the officially approved plan brochure is the sole 
contractual statement of benefits, limitations, and exclusions. All 
advertisements that in any way discuss plan benefits shall contain the 
following statement:

    This is a summary (or brief description) of the features of the 
(plan's name). Before making a final decision, please read the plan's 
officially approved brochure, (brochure number). All benefits are 
subject to the definitions, limitations, and exclusions set forth in the 
official brochure.
    (d) Set forth the rates for the plan, if the advertisements discuss 
benefits.
    (e) Not give instructions on enrollment. Statements on enrollment 
procedures, requirements, or eligibility shall be limited to those such 
as:
    To sign up, fill out a Health Benefits Registration Form (Standard 
Form 2809) from your personnel office indicating the enrollment you 
want:
    The enrollment codes for (plan's name) are:

     Self Only _ Enrollment Code ________

     Self and Family _ Enrollment Code _______

    The form must then be returned to your personnel office before the 
(date) deadline. Your (plan's name) coverage will begin the first pay 
period in January, (year). If you are a retired Federal employee and 
need forms, contact the Office of Personnel Management at P.O. Box 809, 
Washington, DC 20044.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]



1603.7003  Contract clause.

    The clause at 1652.203-70 shall be inserted in all FEHBP contracts.

[52 FR 16039, May 1, 1987. Redesignated at 62 FR 47574, Sept. 10, 1997]

[[Page 117]]



PART 1604_ADMINISTRATIVE MATTERS--Table of Contents



               Subpart 1604.7_Contractor Records Retention

Sec.
1604.703 Policy.
1604.705 Specific retention periods.

              Subpart 1604.9_Taxpayer Identification Number

1604.970 Taxpayer Identification Number.

                Subpart 1604.70_Coordination of Benefits

1604.7001 Coordination of benefits clause.

             Subpart 1604.71_Disputed Health Benefit Claims

1604.7101 Filing health benefit claims/court review of disputed claims.

                Subpart 1604.72_Large Provider Agreements

1604.7201 FEHB Program Large Provider Agreements.
1604.7202 Large Provider Agreement clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16039, May 1, 1987, unless otherwise noted.



               Subpart 1604.7_Contractor Records Retention



1604.703  Policy.

    In view of the unique payment schedules of FEHBP contracts and the 
compelling need for records retention periods sufficient to protect the 
Government's interest, contractors shall be required to maintain records 
for periods determined in accordance with the provisions of FAR 
4.703(b)(1).



1604.705  Specific retention periods.

    Unless the contracting officer determines that there exists a 
compelling reason to include only the contract clause specified by FAR 
52.215-2 ``Audit & Records--Negotiation,'' the contracting officer shall 
insert the clause at 1652.204-70 in all FEHBP contracts.

[52 FR 16039, May 1, 1987, as amended at 62 FR 47574, Sept. 10, 1997]



              Subpart 1604.9_Taxpayer Identification Number

    Source: 65 FR 36386, June 8, 2000, unless otherwise noted.



1604.970  Taxpayer Identification Number.

    Insert the clause at section 1652.204-73 in all FEHBP contracts.



                Subpart 1604.70_Coordination of Benefits



1604.7001  Coordination of benefits clause.

    OPM expects all FEHBP plans to coordinate benefits. Accordingly, the 
clause set forth at 1652.204-71 shall be inserted in all FEHBP 
contracts.



             Subpart 1604.71_Disputed Health Benefit Claims



1604.7101  Filing health benefit claims/court review of disputed claims.

    Guidelines for a Federal Employees Health Benefit (FEHB) Program 
covered individual to file a claim for payment or service and for legal 
actions on disputed health benefit claims are found at 5 CFR 890.105 and 
890.107, respectively. The contract clause at 1652.204-72 of this 
chapter, reflecting this guidance, must be inserted in all FEHB Program 
contracts.

[61 FR 15198, Apr. 5, 1996]



                Subpart 1604.72_Large Provider Agreements

    Source: 70 FR 31379, June 1, 2005, unless otherwise noted.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1604.7201  FEHB Program Large Provider Agreements.

    The following provisions apply to all experience-rated carriers 
participating in the FEHB Program:
    (a) Notification and information requirements. (1) All experience-
rated carriers must provide notice to the contracting officer of their 
intent to enter into or to make a significant modification to a Large 
Provider Agreement.

[[Page 118]]

Significant modification means a 20% increase or more in the amount of 
the Large Provider Agreement:
    (i) Not less than 60 days before entering into any Large Provider 
Agreement; and
    (ii) Not less than 60 days before exercising renewals or other 
options, or making a significant modification.
    (2) The carrier's notification to the contracting officer must be in 
writing and must, at a minimum:
    (i) Describe the supplies and/or services the proposed provider 
agreement will require;
    (ii) Identify the proposed basis for reimbursement;
    (iii) Identify the proposed provider agreement, explain why the 
carrier selected the proposed provider, and, where applicable, what 
contracting method it used, including the kind of competition obtained;
    (iv) Describe the methodology the carrier used to compute the 
provider's profit; and, (v) Describe the provider risk provisions.
    (3) The contracting officer may request from the carrier any 
additional information on a proposed provider agreement and its terms 
and conditions prior to a Large Provider award and during the 
performance of the agreement.
    (4) Within 30 days of receiving the carrier's notification, the 
contracting officer will either give the carrier written comments or 
written notice that there will be no comments. If the contracting 
officer comments, the carrier must respond in writing within 10 calendar 
days and explain how it intends to address any concerns.
    (5) When computing the carrier's annual service charge, the 
contracting officer will consider how well the carrier complies with the 
provisions of this section, including the advance notification 
requirements, as an aspect of the carrier's performance factor.
    (6) The contracting officer's review of any Large Provider 
agreement, option, renewal, or modification will not constitute a 
determination of the acceptability of terms or conditions of any 
provider agreement or the allowability of any costs under the carrier's 
contract, nor will it relieve the carrier of any responsibility for 
performing the contract.
    (b) Records and inspection. The carrier must insert in all Large 
Provider Agreements the requirement that the provider will retain and 
make available to the Government all records relating to the agreement 
as follows:
    (1) Records that support the annual statement of operations--Retain 
for 6 years after the agreement term ends.
    (2) Enrollee records, if applicable--Retain for 6 years after the 
agreement term ends.
    (c) Large Provider Agreements based on cost analysis are subject to 
the provisions of FAR 52.215-2, ``Audit and Records-Negotiation.''
    (d) Large Provider Agreements based on price analysis are subject to 
the provisions of 48 CFR 1646.301 and 1652.246-70.



1604.7202  Large Provider Agreement clause.

    The contracting officer will insert the clause set forth at section 
1652.204-74 in all experience-rated FEHB Program contracts.

[[Page 119]]



                    SUBCHAPTER B_ACQUISITION PLANNING





PART 1605_PUBLICIZING CONTRACT ACTIONS--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1605.000  Applicability.

    FAR part 5 has no practical application to the FEHBP because OPM 
does not issue solicitations. Eligible contractors (i.e., qualified 
health benefits carriers) are identified in accordance with 5 U.S.C. 
8903. Offerors voluntarily come forth in accordance with procedures 
provided in 5 CFR part 890.

[52 FR 16039, May 1, 1987]



PART 1606_COMPETITION REQUIREMENTS--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1606.001  Applicability.

    FAR part 6 has no practical application to FEHBP contracts in view 
of the statutory exception provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]



PART 1609_CONTRACTOR QUALIFICATIONS--Table of Contents



         Subpart 1609.4_Debarment, Suspension, and Ineligibility

Sec.
1609.470 Notification of Debarment, Suspension, and Ineligibility.
1609.471 Contractor certification.

     Subpart 1609.70_Minimum Standards for Health Benefits Carriers

1609.7001 Minimum standards for health benefits carriers.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



         Subpart 1609.4_Debarment, Suspension, and Ineligibility

    Source: 59 FR 14764, Mar. 30, 1994, unless otherwise noted.



1609.470  Notification of Debarment, Suspension, and Ineligibility.

    (FAR) 48 CFR, part 9, subpart 9.4 is supplemented as set out in the 
certification required in 1609.471 by converting the FAR ``offeror's'' 
certification at (FAR) 48 CFR 52.209-5 into a carrier's certification. 
This change reflects the FEHBP's statutory exemption from competitive 
bidding (5 U.S.C. 8902), which obviates the issuance of solicitations.



1609.471  Contractor certification.

    All FEHBP carriers and applicant carriers are required to submit the 
following certification. Applicant carriers must submit the 
certification prior to OPM's determination on the application for 
approval to participate in the FEHBP. Current carriers must submit the 
certification once, along with their benefit and rate proposals for the 
1995 contract year.

  Debarment, Suspension, Proposed Debarment, and Other Responsibility 
                                 Matters

    The Carrier certifies, to the best of its knowledge and belief, 
that--
    (a) The Carrier and/or any of its Principals--
    (1) Are ( ) are not ( ) presently debarred, suspended, proposed for 
debarment, or declared ineligible for the award of contracts by any 
Federal agency;
    (2) Have ( ) have not ( ), within a 3-year period preceding this 
certification, been convicted of or had a civil judgment rendered 
against them for: Commission of fraud or a criminal offense in 
connection with obtaining, attempting to obtain, or performing a public 
(Federal, state, or local) contract or subcontract; violation of Federal 
or state antitrust statutes relating to the submission of offers; or 
commission of embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; and
    (3) Are ( ) are not ( ) presently indicted for, or otherwise 
criminally or civilly charged by a governmental entity with, commission 
of any of the offenses enumerated in subdivision (a)(2) of this clause.
    (4) The Carrier has ( ) has not ( ), within a 3-year period 
preceding this certification, had one or more contracts terminated for 
default by any Federal agency.

[[Page 120]]

    (b) Principals, for the purposes of this certification, means 
officers; directors; owners; partners; and persons having primary 
management or supervisory responsibilities within a business entity 
(e.g., general manager; plant manager; head of a subsidiary, division, 
or business segment, and similar positions).
    This certification concerns a matter within the jurisdiction of an 
agency of the United States and the making of a false, fictitious, or 
fraudulent certification may render the Carrier subject to prosecution 
under section 1001, title 18, United States Code.
    (c) The Carrier shall provide immediate written notice to the 
Contracting Officer if, at any time, the Carrier learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    (d) A Carrier's certification that any of the actions mentioned in 
the certification exists will not necessarily result in termination of 
the contract. However, the certification, or the Carrier's failure to 
provide such additional information as requested by the Contracting 
Officer, will be considered in connection with a determination of the 
Carrier's responsibility under subpart 1609.70, Minimum Standards for 
Health Benefits Carriers.
    (e) Nothing contained in the certification shall be construed to 
require establishment of a system of records in order to render, in good 
faith, the certification required by this section. The knowledge and 
information of the Carrier is not required to exceed that which is 
normally possessed by a prudent person in the ordinary course of 
business dealings.
    (f) The certification in this section is a material representation 
of fact upon which reliance is placed by the Contracting Officer. If it 
is later determined that the Carrier knowingly rendered an erroneous 
certification, in addition to other remedies available to the 
Government, the Contracting Officer may terminate the contract for 
default.

Carrier Name:___________________________________________________________
________________________________________________________________________

Name of Chief Executive Officer

Date signed:____________________________________________________________

                          (End of certificate)



     Subpart 1609.70_Minimum Standards for Health Benefits Carriers



1609.7001  Minimum standards for health benefits carriers.

    (a) The carrier of an approved health benefits plan shall meet the 
requirements of chapter 89 of title 5, United States Code; part 890 of 
title 5, Code of Federal Regulations; chapter 1 of title 48, Code of 
Federal Regulations, and the following standards. The carrier shall 
continue to meet the requirements of chapter 89 of title 5, United 
States Code, and the standards cited in this paragraph while under 
contract with OPM. Failure to meet these requirements and standards is 
cause for OPM's withdrawal of approval of the health benefits carrier 
and termination of the contract in accordance with 5 CFR 890.204.
    (1) It must be lawfully engaged in the business of supplying health 
benefits.
    (2) It must have, in the judgement of OPM, the financial resources 
and experience in the field of health benefits to carry out its 
obligations under the plan.
    (3) It must keep such reasonable financial and statistical records, 
and furnish such reasonable financial and statistical reports with 
respect to the plan, as may be requested by OPM.
    (4) It must permit representatives of OPM and of the General 
Accounting Office to audit and examine its records and accounts which 
pertain, directly or indirectly, to the plan at such reasonable times 
and places as may be designated by OPM or the General Accounting Office.
    (5) It must accept, subject to adjustment for error or fraud, in 
payment of its charges for health benefits for all enrollees in its 
plan, the enrollment charges received by the Employees Health Benefits 
(EHB) Fund less amounts set aside for the administrative and contingency 
reserves prescribed in 5 CFR 890.503. OPM makes available or pays the 
amounts within 30 days of receipt by the EHB Fund.
    (6) A carrier that is an employee organization must continue 
coverage, without requirement of membership, of any eligible survivor 
annuitants, former spouses continuing coverage with the carrier under 5 
CFR 890.803, children temporarily continuing coverage with the carrier 
under 5 CFR 890.1103(a)(2), or former spouses temporarily continuing 
coverage with the carrier under 5 CFR 890.1103(a)(3).
    (7) It must timely submit to OPM a properly completed and signed 
novation or change-of-name agreement in

[[Page 121]]

accordance with subpart 1642.12 of this chapter.
    (b) In addition to the standards in paragraph (a) of this section, 
the carrier must perform the contract in accordance with prudent 
business practices. A carrier's sustained poor business practice in the 
management or administration of a health benefits plan is cause for 
OPM's withdrawal of approval of the health benefits carrier and 
termination of the carrier's contract. Prudent business practices 
include, but are not limited to, the following:
    (1) Timely compliance with OPM instructions and directives.
    (2) Legal and ethical business and health care practices.
    (3) Compliance with the terms of the FEHB contract, regulations and 
statutes.
    (4) Timely and accurate adjudication of claims or rendering of 
medical services.
    (5) A system for accounting for costs incurred under the contract, 
when required, which includes segregating and pricing FEHB medical 
utilization and allocating indirect and administrative costs in a 
reasonable and equitable manner.
    (6) Accurate accounting reports of actual, allowable, allocable, and 
reasonable costs incurred in the administration of the contract.
    (7) Application of performance standards for assuring contract 
quality as required by 1646.270(d).
    (8) Establishment and maintenance of a system of internal control 
that provides reasonable assurance that:
    (i) The provision and payments of benefits and other expenses are in 
compliance with legal, regulatory, and contractual guidelines;
    (ii) FEHB funds, property, and other assets are safeguarded against 
waste, loss, unauthorized use, or misappropriation; and,
    (iii) Data are accurately and fairly disclosed in all reports 
required by OPM.
    (c) The following types of activities are examples of poor business 
practices which adversely affect the health benefits carrier's 
responsibility under its contract. A pattern of poor conduct or evidence 
of misconduct in these areas is cause for OPM to withdraw approval of 
the carrier:
    (1) Presenting false claims by charging expenses to the contract 
which according to the contract terms are not chargeable to the 
contract;
    (2) Using fraudulent or unethical business or health care practices 
or otherwise displaying a lack of business integrity or honesty;
    (3) Repeatedly and knowingly providing false or misleading 
information in the rate setting process;
    (4) Repeated failure to comply with OPM instructions and directives;
    (5) Having an accounting system that is incapable of separately 
accounting for costs incurred under the contract and/or that lacks the 
internal controls necessary to fulfill the terms of the contract; and
    (6) Failure to assure that the plan provides properly paid or denied 
claims, or providing medical services which are inconsistent with 
standards of good medical practice.
    (7) Entering into contracts or employment agreements with providers, 
provider groups, or health care workers that include provisions or 
financial incentives that directly or indirectly create an inducement to 
limit or restrict communication about medically necessary services to 
any individual covered under the FEHB Program. Financial incentives are 
defined as bonuses, withholds, commissions, profit sharing or other 
similar adjustments to basic compensation (e.g., service fee, 
capitation, salary) which have the effect of limiting or reducing 
communication about appropriate medically necessary services. Providers, 
health care workers, or health plan sponsoring organizations are not 
required to discuss treatment options that they would not ordinarily 
discuss in their customary course of practice because such options are 
inconsistent with their professional judgment or ethical, moral or 
religious beliefs.
    (d) The Director or his or her designee will determine whether to 
propose withdrawal of approval and hold a hearing based on the 
seriousness of the

[[Page 122]]

carrier's actions and its proposed method to effect corrective action.

[57 FR 14359, Apr. 20, 1992. Redesignated and amended at 59 FR 14764, 
14765, Mar. 30, 1994; 63 FR 42586, Aug. 10, 1998]

[[Page 123]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES





PART 1614_SEALED BIDDING--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1614.000  Applicability.

    FAR part 14 has no practical application to FEHBP contracts in view 
of the statutory exemption provided by 5 U.S.C. 8902.

[52 FR 16039, May 1, 1987]



PART 1615_CONTRACTING BY NEGOTIATION--Table of Contents



Sec.
1615.070 Negotiation authority.

        Subpart 1615.1_Source Selection Processes and Techniques

1615.170 Applicability.

  Subpart 1615.2_Solicitations and Receipt of Proposals and Information

1615.270 Applicability.

                     Subpart 1615.3_Source Selection

1615.370 Applicability.

                     Subpart 1615.4_Contract Pricing

1615.402 Pricing policy.
1615.404-4 Profit.
1615.404-70 Profit analysis factors.
1615.406-2 Certificate of accurate cost or pricing data for community-
          rated carriers.
1615.407-1 Rate reduction for defective pricing or defective cost or 
          pricing data.
1615.470 Carrier investment of FEHB funds.
1615.470-1 Investment income clause.

Subparts 1615.8-1615.9 [Reserved]

              Subpart 1615.70_Audit and Records_Negotiation

1615.7001 Audit and records.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301; 5 U.S.C. 
8902.

    Source: 52 FR 16040, May 1, 1987, unless otherwise noted.



1615.070  Negotiation authority.

    The authority to negotiate FEHB contracts is conferred by 5 U.S.C. 
8902.

[70 FR 31379, June 1, 2005]



        Subpart 1615.1_Source Selection Processes and Techniques



1615.170  Applicability.

    FAR subpart 15.1 has no practical application to the FEHB Program 
because prospective contractors (carriers) are considered for inclusion 
in the FEHB Program according to criteria in 5 U.S.C. chapter 89 and 5 
CFR part 890 rather than by competition between prospective carriers.

[70 FR 31379, June 1, 2005]



  Subpart 1615.2_Solicitations and Receipt of Proposals and Information



1615.270  Applicability.

    FAR subpart 15.2 has no practical application to the FEHB Program 
because OPM does not issue formal procurement solicitations to health 
benefits carriers. Eligible contractors (i.e., qualified health benefits 
carriers) are identified in accordance with 5 U.S.C. 8903. Offerors 
voluntarily come forth in accordance with procedures provided in 5 CFR 
part 890.

[70 FR 31379, June 1, 2005]



                     Subpart 1615.3_Source Selection



1615.370  Applicability.

    FAR subpart 15.3 has no practical application to the FEHBP because 
prospective contractors (carriers) are considered for inclusion in the 
FEHBP in accordance with criteria provided in 5 U.S.C. chapter 89 and 5 
CFR part 890 rather than on the basis of competition between prospective 
carriers.

[52 FR 16040, May 1, 1987. Redesignated and amended at 70 FR 31380, June 
1, 2005]

[[Page 124]]



                     Subpart 1615.4_Contract Pricing

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 70 FR 31380, June 1, 2005, unless otherwise noted.



1615.402  Pricing policy.

    Pricing of FEHB contracts is governed by 5 U.S.C. 8902(i), 5 U.S.C. 
8906, and other applicable law. FAR subpart 15.4 will be implemented by 
applying its policies and procedures--to the extent practicable--as 
follows:
    (a) For both experience-rated and community-rated contracts for 
which the FEHB Program premiums for the contract term will be less than 
the threshold at FAR 15.403-4(a)(1), OPM will not require the carrier to 
provide cost or pricing data in the rate proposal for the following 
contract term.
    (b) Cost analysis will be used for contracts where premiums and 
subscription income are determined on the basis of experience rating.
    (c)(1) A combination of cost and price analysis will be used for 
contracts where premiums and subscription income are based on community-
rates. For contracts for which the FEHB Program premiums for the 
contract term will be less than the threshold at FAR 15.403-4(a)(1), OPM 
will not require the carrier to provide cost or pricing data. The 
carrier is required to submit only a rate proposal and abbreviated 
utilization data for the applicable contract year. OPM will evaluate the 
proposed rates by performing a basic reasonableness test on the 
information submitted. Rates failing this test will be subject to 
further review.
    (2) For contracts with fewer than 1,500 enrollee contracts for which 
the FEHB Program premiums for the contract term will be at or above the 
threshold at FAR 15.403-4(a)(1), OPM will require the carrier to submit 
its rate proposal, utilization data, and a certificate of accurate cost 
or pricing data required in 1615.406-2. In addition, OPM will require 
the carrier to complete the proposed rates form containing cost and 
pricing data, and the Community-Rate Questionnaire, but will not require 
the carrier to send these documents to OPM. The carrier will keep the 
documents on file for periodic auditor and actuarial review in 
accordance with 1652.204-70. OPM will perform a basic reasonableness 
test on the data submitted. Rates that do not pass this test will be 
subject to further OPM review.
    (3) For plan year 2012, plans will have the option of continuing to 
use the similarly sized subscriber group (SSSG) rating methodology 
described in paragraph (c)(3)(i) of this section or using the MLR rating 
methodology described in paragraph (c)(3)(ii) of this section. All non-
traditional community rated (TCR) plans will be required to submit FEHB-
specific MLR information for every year beginning with plan year 2011.
    (i) Similarly sized subscriber group (SSSG) methodology. (A) For 
contracts with 1,500 or more enrollee contracts for which the FEHB 
Program premiums for the contract term will be at or above the threshold 
at FAR 15.403-4(a)(1), OPM will require the carrier to provide the data 
and methodology used to determine the FEHB Program rates. OPM will also 
require the data and methodology used to determine the rates for the 
carrier's SSSG. The carrier will provide cost or pricing data required 
by OPM in its rate instructions for the applicable contract period. OPM 
will evaluate the data to ensure that the rate is reasonable and 
consistent with the requirements in this chapter. If necessary, OPM may 
require the carrier to provide additional documentation.
    (B) Contracts will be subject to a downward price adjustment if OPM 
determines that the Federal group was charged more than it would have 
been charged using a methodology consistent with that used for the SSSG. 
Such adjustments will be based on the rate determined by using the 
methodology (including discounts) the carrier used for the SSSG.
    (C) FEHB Program community-rated carriers will comply with SSSG 
criteria provided by OPM in the rate instructions for the applicable 
contract period.
    (ii) FEHB-specific medical loss ratio (MLR) threshold methodology. 
(A) For contracts with 1,500 or more enrollee contracts for which the 
FEHB Program premiums for the contract term will be

[[Page 125]]

at or above the threshold at FAR 15.403-4(a)(1), OPM will require the 
carrier to provide the data and methodology used to determine the FEHB 
Program rates. OPM will also require the data and methodology used to 
determine the medical loss ratio (MLR) as defined in the ACA (Pub. L. 
111-148) and as defined by HHS in 45 CFR part 158 for all FEHB community 
rated plans other than those required by state law to use Traditional 
Community Rating. The carrier will provide cost or pricing data, as well 
as the FEHB-specific MLR threshold data required by OPM in its rate 
instructions for the applicable contract period. OPM will evaluate the 
data to ensure that the rate is reasonable and consistent with the 
requirements in this chapter. If necessary, OPM may require the carrier 
to provide additional documentation.
    (B) Contracts will be subject to a subsidization penalty if OPM 
determines that the FEHB group did not meet the FEHB-specific MLR 
threshold specified in the annual rate instruction to carriers. Such a 
subsidization penalty will be deposited into a Subsidization Penalty 
Account held at the U.S. Treasury. This Subsidization Penalty Account 
will be held in common with all community rated carriers and will be 
annually distributed to the contingency reserve accounts of all non-TCR 
community rated plans on a pro-rata basis.
    (C) FEHB Program community-rated carriers will comply with the MLR 
criteria, including the FEHB-specific MLR threshold provided by OPM in 
the rate instructions for the applicable contract period. FEHB plans 
that are required by state law to use TCR are exempt from this 
requirement and will use the SSSG methodology outlined in paragraph 
(c)(3)(i) of this section.
    (4) Contracts will be subject to a downward price adjustment if OPM 
determines that the Federal group was charged more than it would have 
been charged using a methodology consistent with that used for the 
similarly-sized subscriber group (SSSG). Such adjustments will be based 
on the rate determined by using the methodology (including discounts) 
the carrier used for the SSSG.
    (5) FEHB Program community-rated carriers will comply with SSSG 
criteria provided by OPM in the rate instructions for the applicable 
contract period.
    (d) The application of FAR 15.402(b)(2) should not be construed to 
prohibit the consideration of preceding year surpluses or deficits in 
carrier-held reserves in the rate adjustments for subsequent year 
renewals of contracts based, in whole or in part, on cost analysis.

[70 FR 31380, June 1, 2005, as amended at 76 FR 38285, June 29, 2011; 77 
FR 19524, Apr. 2, 2012; 80 FR 32860, June 10, 2015]



1615.404-4  Profit.

    (a) When the pricing of FEHB Program contracts is determined by cost 
analysis (experience-rated) or by a combination of cost and price 
analysis (community rated), OPM will determine a performance based 
percentage of the price using a weighted guidelines structured approach 
based on the profit analysis factors described in 1615.404-70. For 
experience-rated plans, OPM will use the performance based percentage so 
determined to develop the profit or fee prenegotiation objective, which 
will be the total profit (service charge) negotiated for the contract. 
For community-rated plans, OPM will use the performance based percentage 
so determined to develop an adjustment to net-to-carrier premiums, 
(performance adjustment) to be made during the first quarter of the 
following contract period.
    (b) OPM will not guarantee a minimum service charge.

[70 FR 31380, June 1, 2005, as amended at 80 FR 37180, June 30, 2015]



1615.404-70  Profit analysis factors.

    (a) OPM Contracting Officers will apply a weighted guidelines method 
in developing the performance based percentage for FEHB Program 
contracts. For experience-rated plans, the performance based percentage 
will be applied to projected incurred claims and allowable 
administrative expenses. For community-rated plans, the performance 
based percentage will be applied to subscription income and will be used 
to calculate a performance adjustment

[[Page 126]]

to net-to-carrier premiums, as described at 48 CFR 1632.170(a)(2), to be 
made during the first quarter of the following contract period. In the 
context of the factors outlined in FAR 15.404- 4(d), OPM will assess 
performance of FEHB carriers according to four factors.
    (1) Clinical quality. OPM will consider elements within such domains 
as preventive care, chronic disease management, medication use, and 
behavioral health. This factor incorporates elements from the FAR factor 
``contractor effort.''
    (2) Customer service. OPM will consider elements within such domains 
as communication, access, claims, and member experience/engagement. This 
factor incorporates elements of the FAR factor ``contractor effort.''
    (3) Resource use. OPM will consider elements within such domains as 
utilization management, administrative, and cost trends. This factor 
incorporates elements of the FAR factors ``contractor effort,'' 
``contract cost risk,'' and ``cost control and other past 
accomplishments.''
    (4) Contract oversight. OPM will consider an assessment of contract 
performance in specific areas such as audit findings, fraud/waste/abuse, 
and responsiveness to OPM, benefits/network management, contract 
compliance, technology management, data security, and Federal 
socioeconomic programs. This factor could incorporate any of the FAR 
profit analysis factors listed at 15.404-4(d)(1)(i)-(vi).
    (b) The sum of the maximum scores for the profit analysis factors 
will be 1 percent.

[80 FR 37180, June 30, 2015]



1615.406-2  Certificates of accurate cost or pricing data for community
rated carriers.

    (a) The contracting officer will require a carrier with a contract 
meeting the requirements in 1615.402(c)(2) or (3) to execute one or more 
of the Certificates contained in this section. A carrier with a contract 
meeting the requirements in 1615.402(c)(2) will complete the appropriate 
Certificate(s) and keep such on file at the carrier's place of business 
in accordance with 1652.204-70. A carrier with a contract meeting the 
requirements in 1615.402(c)(3) will complete and submit the appropriate 
certificate(s) to OPM.
    (b) A carrier using the SSSG methodology described in 
1615.402(c)(3)(i) will submit the ``Certificate of Accurate Cost or 
Pricing Data for Community-Rated Carriers (SSSG methodology)'' along 
with its rate reconciliation during the first quarter of the applicable 
contract year. A carrier using the MLR methodology described in 
1615.402(c)(3)(ii) will submit two forms. The ``Certificate of Accurate 
Cost or Pricing Data for Community-Rated Carriers (MLR methodology)'' 
will be submitted along with the rate reconciliation during the first 
quarter of the applicable contract year. The ``Certificate of Accurate 
MLR Calculation'' will be submitted when the carrier submits its FEHB-
specific MLR calculation to OPM.

                    (Beginning of first certificate)

    This is to certify that, to the best of my knowledge and belief: (1) 
The cost or pricing data submitted (or, if not submitted, maintained and 
identified by the carrier as supporting documentation) to the 
Contracting officer or the Contracting officer's representative or 
designee, in support of the __* FEHB Program rates were developed in 
accordance with the requirements of 48 CFR Chapter 16 and the FEHB 
Program contract and are accurate, complete, and current as of the date 
this certificate is executed; and (2) the methodology used to determine 
the FEHB Program rates is consistent with the methodology used to 
determine the rates for the carrier's Similarly Sized Subscriber Group.
    * Insert the year for which the rates apply.

Firm:___________________________________________________________________

Name:___________________________________________________________________

Signature:______________________________________________________________

Date of Execution:______________________________________________________

                       (End of first certificate)

                    (Beginning of second certificate)

    Certificate of Accurate Cost or Pricing Data for Community-Rated 
                       Carriers (MLR methodology)

    This is to certify that, to the best of my knowledge and belief: (1) 
The cost or pricing data submitted (or, if not submitted, maintained and 
identified by the carrier as supporting documentation) to the 
Contracting officer or the Contracting officer's representative or 
designee, in support of the


[[Page 127]]

___*FEHB Program rates were developed in accordance with the 
requirements of 48 CFR Chapter 16 and the FEHB Program contract and are 
accurate, complete, and current as of the date this certificate is 
executed;
    *Insert the year for which the rates apply.

 Firm:

 Name:

 Signature:

 Date of Execution:

                       (End of second certificate)

                    (Beginning of third certificate)

                 Certificate of Accurate MLR Calculation

    This is to certify that, to the best of my knowledge and belief: the 
determination of the carrier's FEHB-specific medical loss ratio for * is 
accurate, complete, and consistent with the methodology as stated in 
Sec.  1615.402(c)(3)(ii).

    *Insert the year for which the MLR calculation applies.

 Firm:

 Name:

 Signature:

 Date of Execution:

                          (End of certificate)

[77 FR 19524, Apr. 2, 2012, as amended at 80 FR 32860, June 10, 2015]



1615.407-1  Rate reduction for defective pricing or defective cost or
pricing data.

    The clause set forth in section 1652.215-70 will be inserted in FEHB 
Program contracts, at or above the threshold in FAR 15.403-4(a)(1), that 
are based on a combination of cost and price analysis (community-rated).



1615.470  Carrier investment of FEHB funds.

    (a) Except for contracts based on a combination of cost and price 
analysis (community-rated), the carrier is required to invest and 
reinvest all funds on hand, including any attributable to the special 
reserve or the reserve for incurred but unpaid claims, exceeding the 
funds needed to discharge promptly the obligations incurred under the 
contract.
    (b) The carrier is required to credit income earned from its 
investment of FEHB funds to the special reserve on behalf of the FEHB 
Program. If a carrier, for any reason, fails to invest excess FEHB funds 
or to credit any income due to the contract, it will return or credit 
any investment income lost to OPM or the special reserve.
    (c) Investment income. Investment income is the net amount earned by 
the carrier after deducting investment expenses.



1615.470-1  Investment income clause.

    The clause set forth in 1652.215-71 will be inserted in all FEHB 
contracts based on cost analysis.

Subparts 1615.8-1615.9 [Reserved]



              Subpart 1615.70_Audit and Records_Negotiation



1615.7001  Audit and records.

    The Contracting officer will modify 52.215-2 in all FEHB Program 
experience-rated contracts by amending paragraph (g) of that section to 
replace the words ``exceed the simplified acquisition threshold'' with 
``equals or exceeds $550,000.'' This amount shall be adjusted by the 
same amount and at the same time as any change to the threshold for 
application of the Truth in Negotiations Act pursuant to 41 U.S.C. 
254b(a)(7).

[70 FR 31381, June 1, 2005]



PART 1616_TYPES OF CONTRACTS--Table of Contents



                 Subpart 1616.1_Selecting Contract Types

Sec.
1616.102 Policies.
1616.105 Solicitation provision.

              Subpart 1616.70_Negotiated Benefits Contracts

1616.7001 Clause--contracts based on a combination of cost and price 
          analysis (community rated).
1616.7002 Clause--contracts based on cost analysis (experience rated).

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.

[[Page 128]]



                 Subpart 1616.1_Selecting Contract Types



1616.102  Policies.

    All FEHBP contracts shall be negotiated benefits contracts.

[62 FR 47575, Sept. 10, 1997]



1616.105  Solicitation provision.

    FAR 16.105 has no practical application because the statutory 
provisions of 5 U.S.C. chapter 89 obviate the issuance of solicitations.



              Subpart 1616.70_Negotiated Benefits Contracts

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



1616.7001  Clause--contracts based on a combination of cost and price
analysis (community rated).

    The clause at section 1652.216-70 shall be inserted in all FEHBP 
contracts based on a combination of cost and price analysis (community 
rated).



1616.7002  Clause--contracts based on cost analysis (experience rated).

    The clause at section 1652.216-71 shall be inserted in all FEHBP 
contracts based on cost analysis (experience rated).

[[Page 129]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 1622_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
--Table of Contents





                   Subpart 1622.1_Basic Labor Policies

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1622.103-70  Contract clause.

    The clause at 1652.222-70 shall be inserted in all FEHBP contracts.

[55 FR 27415, July 2, 1990]



PART 1624_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
--Table of Contents





             Subpart 1624.1_Protection of Individual Privacy

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1624.104  Contract clause.

    Records retained by FEHBP carriers on Federal subscribers and 
members of their families serve the carriers' own commercial function of 
paying health benefits claims and are not maintained to accomplish an 
agency function of OPM. Consequently, the records do not fall within the 
provisions of the Privacy Act. Nevertheless, OPM recognizes the need for 
carriers to keep certain records confidential. The clause at 1652.224-70 
shall be inserted in all FEHBP contracts.

[52 FR 16041, May 1, 1987]

[[Page 130]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





PART 1629_TAXES--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



                     Subpart 1629.4_Contract Clauses



1629.402  Foreign contracts.

    The clause set forth in section 1652.229-70 shall be inserted in all 
FEHBP contracts performed outside the United States, its possessions, 
and Puerto Rico.



PART 1631_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents



                       Subpart 1631.1_Definitions

Sec.
1631.1 Definitions.

         Subpart 1631.2_Contracts With Commercial Organizations

1631.200 Scope of subpart.
1631.201-70 Credits.
1631.203 Indirect costs.
1631.203-70 Allocation techniques.
1631.203-71 Business unit General and Administrative (G&A) expenses.
1631.203-72 Home office expense.
1631.205 Selected costs.
1631.205-10 Cost of money.
1631.205-41 Taxes.
1631.205-70 FEHBP public relations and advertising costs.
1631.205-71 FEHBP bad debts.
1631.205-72 FEHBP compensation for personal services.
1631.205-73 FEHBP interest expense.
1631.205-74 FEHBP losses on other contracts.
1631.205-75 Selling costs.
1631.205-76 Trade, business, technical and professional activity costs.
1631.205-77 FEHBP start-up and other nonrecurring costs.
1631.205-78 FEHBP printed material costs.
1631.205-79 Mandatory statutory reserves.
1631.205-80 Major subcontractor service charges.
1631.205-81 Inferred reasonableness.
1631.205-82 Audits.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16041, May 1, 1987, unless otherwise noted.



                       Subpart 1631.1_Definitions



1631.1  Definitions.

    The definitions in FAR 31.001 are applicable to this section unless 
otherwise noted.

[70 FR 31390, June 1, 2005]



         Subpart 1631.2_Contracts With Commercial Organizations



1631.200  Scope of subpart.

    The cost principles under this subpart apply only to contracts in 
which premiums and subscription income are determined on the basis of 
experience rating, in which cost analysis is performed, or in which 
price is determined on the basis of actual costs incurred.



1631.201-70  Credits.

    The provisions of FAR 31.201-5 shall apply to income, rebates, 
allowances, and other credits resulting from benefit payments. Examples 
of such credits include:
    (a) Coordination of benefit refunds, including subrogation 
settlements;
    (b) Hospital year-end settlements and other applicable provider 
discounts;
    (c) Uncashed and returned checks;
    (d) Utilization review refunds;
    (e) Contract prescription drug rebates;
    (f) Volume discounts;
    (g) Refunds and other payments or recoveries attributable to 
litigation with subscribers or providers of health services; and,
    (h) Erroneous benefit payment, overpayment, and duplicate payment 
recoveries.

[70 FR 31390, June 1, 2005]



1631.203  Indirect costs.

    For the purposes of applying FAR 31.203(g)(2) to FEHB Program 
contracts, OPM considers the monthly rates used by some carriers to be a 
general practice in the insurance industry.

[70 FR 31391, June 1, 2005]

[[Page 131]]



1631.203-70  Allocation techniques.

    (a) Carriers shall use the following methods for allocating 
groupings of business unit indirect costs. Carriers shall consistently 
apply the methods and techniques established to classify direct and 
indirect costs, to group indirect costs and to allocate indirect costs 
to cost objectives.
    (1) Input method. The preferred allocation technique is one that 
shows the consumption of resources in performance of the activities 
(input) for the function(s) represented by the cost grouping. This 
allocation technique should be used in circumstances where there is a 
direct and definitive relationship between the function(s) and the 
benefiting cost objectives. Measures of input ordinarily may be 
expressed in terms such as labor hours or square footage. This means 
costs may be allocated by use of a rate, such as a rate per labor hour 
or cost per square foot.
    (2) Output method. Where input measures are unavailable or 
impractical to determine, the basis for allocation may be a measure of 
the output of the function(s) represented by the cost grouping. The 
output becomes a substitute measure for the use of resources and is a 
reasonable alternative when a direct measure of input is impractical. 
Output may be measured in terms of units of end product produced by the 
function(s). Examples of output measures include number of claims 
processed by a claims processing center, number of pages printed in a 
print shop, number of purchase orders processed by a purchasing 
department, or number of hires by a personnel office.
    (3) Surrogate method. Where neither activity (input) nor output of 
the function(s) can be measured practically, a surrogate must be used to 
measure the resources utilized. Surrogates used to represent the 
relationship generally measure the benefit to the cost objectives 
receiving the service and should vary in proportion to the services 
received. For example, if a personnel department provides various 
services that cannot be measured practically on an activity (input) or 
output basis, number of personnel served might reasonably represent the 
use of resources of the personnel function for the cost objectives 
receiving the service, where this base varies in proportion to the 
services performed.
    (4) Other method. Some cost groupings cannot readily be allocated on 
measures of specific beneficial or causal relationships under paragraph 
(a)(1), (a)(2), or (a)(3) of this section. Such costs do not have a 
direct and definitive relationship to the benefiting cost objectives. 
Generally, the cost of overall management activities falls in this 
category. Overall management costs should be grouped in relation to the 
activities managed. The base selected to measure the allocation of these 
indirect costs to cost objectives should be a base representative of the 
entire activity being managed. For example, the total operating expenses 
of activities managed might be a reasonable base for allocating the 
general indirect costs of a business unit. Another reasonable method for 
allocating general indirect costs might be to base them on a percentage 
of contracts. These examples are not meant to be exhaustive, but rather 
are examples of allocation methods that may be acceptable under 
individual circumstances. See also General and Administrative (G&A) 
expenses, FEHBAR 1631.203-71.
    (b) Carriers that use multiple cost centers to accumulate and 
allocate costs shall apply the techniques in paragraph (a) of this 
section at each step of the allocation process. Accordingly, the 
allocation of costs among cost centers at the initial entry into the 
cost accounting system shall be made in compliance with paragraph (a) of 
this section. Likewise, the allocation of the cost of interim cost 
centers to final cost centers is subject to paragraph (a) of this 
section. If costs of final cost centers are allocated among final cost 
objectives, the allocation shall also be made in accordance with 
paragraph (a) of this section. It is possible that carriers using 
multiple cost centers to accumulate and allocate costs may not have any 
direct costs, i.e., costs identified specifically with a final cost 
objective.
    (c) The allocation of business unit general and administrative 
expenses and the allocation of home office expenses to segments are also 
subject to

[[Page 132]]

FEHBAR 1631.203-71 and FEHBAR 1631.203-72, respectively.

[70 FR 31391, June 1, 2005]



1631.203-71  Business unit General and Administrative (G&A) expenses.

    G&A expenses shall be allocated to final cost objectives by a base 
or method that represents the total activity of the business unit.

[70 FR 31391, June 1, 2005]



1631.203-72  Home office expense.

    A carrier's practices for allocating home office expenses to the 
segments of the carrier will be acceptable for purposes of FAR 31.203 if 
they are allocated on the basis of the beneficial or causal relationship 
between the home office activities and the segments to which the 
expenses are allocated. Expenses that cannot be allocated on the basis 
of a more specific beneficial or causal relationship should be allocated 
on a basis representative of the entire activity being managed. The 
compliance of such allocations with FAR 31.203 shall be determined on 
the basis of the facts and circumstances of each situation.

[70 FR 31391, June 1, 2005]



1631.205  Selected costs.



1631.205-10  Cost of money.

    For the purposes of FAR 31.205-10(b)(3), the estimated facilities 
capital cost of money is specifically identified if it is identified in 
the prior year's Annual Accounting Statement or, for new experience-
rated carriers, the supplemental information supporting submitted costs 
(such as the Supplemental Schedule of Administrative Expenses).

[70 FR 31391, June 1, 2005]



1631.205-41  Taxes.

    5 U.S.C. 8909(f)(1) prohibits the imposition of taxes, fees, or 
other monetary payment, directly or indirectly, on FEHB premiums by any 
State, the District of Columbia, or the Commonwealth of Puerto Rico, or 
by any political subdivision or other governmental authority of those 
entities. Therefore, FAR 31.205-41 is modified to include those taxes as 
unallowable costs. The prohibited payments, referred to elsewhere in 
these regulations as ``premium taxes,'' applies to all payments directed 
by States or municipalities, regardless of how they may be titled, to 
whom they must be paid, or the purpose for which they are collected, and 
it applies to all forms of direct and indirect measurements on FEHBP 
premiums, however modified, to include cost per contract or enrollee, 
with the sole exception of a tax on net income or profit, if that tax, 
fee, or payment is applicable to a broad range of business activity.

[56 FR 57496, Nov. 12, 1991]



1631.205-70  FEHBP public relations and advertising costs.

    (a) The cost of media messages that are directed at advising current 
FEHBP subscribers on how to obtain benefits shall be an allowable 
expense within the meaning of FAR 31.205-1 because this service is 
directly related to performance of the FEHBP contract. If there is any 
question about the allowability of such a cost, the carrier may request 
advance approval regarding the content and cost of the message.
    (b) Costs of media messages not provided for in paragraph (a) of 
this section are allowable if the content is specifically approved by 
the contracting officer and all of the following criteria are met:
    (1) The primary effect of the message is to disseminate information 
on health care cost containment or preventive health care;
    (2) The costs of the carrier's messages are allocated to all 
underwritten and non-underwritten lines of business; and
    (3) The contracting officer approves the total dollar amount of the 
carrier's messages to be charged to the FEHBP in advance of the contract 
year.
    (c) Costs of messages that are intended to, or which have the 
primary effect of, calling favorable attention to the carrier (or 
subcontractor) for the purpose of enhancing its overall image or selling 
its health plan are not allowable.

[[Page 133]]



1631.205-71  FEHBP bad debts.

    Erroneous benefit payments are not automatically disallowed by FAR 
31.205-3.



1631.205-72  FEHBP compensation for personal services.

    (a) Overtime on an FEHBP contract would normally meet the condition 
specified in FAR 22.103. Premiums for overtime, extra-pay shifts, and 
multi-shifts meeting the specified conditions shall be allowed without 
prior approval.
    (b)(1) The costs of compensated personal absence shall be assigned 
to the cost accounting period or periods in which entitlement was 
earned. Entitlement means an employee's right, whether conditional or 
unconditional, to receive a determinable amount of compensated personal 
absence, or pay in lieu thereof.
    (2) If at the beginning of the 1st year a carrier subject to 
paragraph (b)(1) of this section has a liability for accrued but unpaid 
expenses for compensated personal absences that would otherwise be 
allocable to FEHB contracts, the carrier may include such costs in a 
suspense account. The suspense account may be amortized and included in 
government contract costs at a rate not exceeding 20 percent per year.

[52 FR 16041, May 1, 1987, as amended at 70 FR 31391, June 1, 2005]



1631.205-73  FEHBP interest expense.

    (a) Interest charges incurred in the administration of FEHBP 
contracts are not allowable in accordance with FAR 31.205-20. However, 
interest charges that are associated with the carrier's investment of 
FEHBP account funds are not considered administrative costs and may be 
allowable under very limited circumstances if all of the following 
criteria are met:
    (1) Borrowing is limited to the positive balance of the carrier's 
entire FEHBP investment portfolio;
    (2) FEHBP funds are tied up in long-term securities;
    (3) Liquidation of long-term securities would cost more than the 
cost of the interest;
    (4) The interest rates charged are at or below current market rates; 
and
    (5) Advance written approval of the contracting officer is obtained 
before such costs are incurred.
    (b) The carrier must demonstrate on a case-by-case basis that 
borrowing rather than cashing in long-term investments shall actually 
result in cost savings to the FEHB Program. Satisfactory demonstration 
of cost savings is a prerequisite to contracting officer approval of the 
interest cost as a charge to the contract.
    (c) If the interest charge is allowed, the risk factor in the 
service charge will be adjusted downward so that the carrier does not 
recover interest costs through both the service charge and an allowance 
under this paragraph.



1631.205-74  FEHBP losses on other contracts.

    FAR 31.205-23 shall not be construed to prohibit the application of 
the normal ``loss carry forward'' principle that is fundamental to 
continuing insurance contracts that are based on experience rating.



1631.205-75  Selling costs.

    (a) FAR 31.205-38 is modified to eliminate from allowable costs 
those costs related to sales promotion and the payment of sales 
commissions fees or salaries to employees or outside commercial or 
selling agencies for enrolling Federal subscribers in a particular FEHB 
plan.
    (b) Selling costs are allowable costs to FEHBP contracts to the 
extent that they are necessary for conducting annual contract 
negotiations with the Government and for liaison activities necessary 
for ongoing contract administration. Personnel and related travel costs 
are allowable for attendance at Open Season Health fairs and other 
similar activities at which carriers give enrollees information about 
their choices among health plans (but see FAR 31.205-1 `Public relations 
and advertising costs', and The Federal Employees Health Benefits 
Handbook for Personnel and Payroll Offices, Subchapter S2-3(f) 
`Controlling contacts between employees and carriers').

[52 FR 16041, May 1, 1987, as amended at 62 FR 47575, Sept. 10, 1997]

[[Page 134]]



1631.205-76  Trade, business, technical, and professional activity costs.

    (a) FEHBP participating plans, carriers, and underwriters shall seek 
the advance written approval of the contracting officer for allowability 
of all or part of the costs associated with trade, business, technical, 
and professional activities (FAR 31.205-43) when the allocable costs of 
such participation to the FEHBP will exceed $1,000 annually and when the 
carrier or underwriter allocates more than 50% of the membership cost of 
a trade, business, technical, or professional organization to the FEHBP.
    (b) When approval of costs for membership in an organization is 
required, the carrier or underwriter must demonstrate conclusively that 
membership in such an organization and participation in its activities 
extend beyond the contractual relationship with OPM, have a reasonable 
relationship to providing care and services to FEHBP enrollees, and that 
the organization is not engaged in activities such as those cited in FAR 
31.205-22 (lobbying costs) for which costs are not allowable.



1631.205-77  FEHBP start-up and other nonrecurring costs.

    Precontract costs (FAR 31.205-32) shall be allowed only to the 
extent provided for by advance agreement in accordance with FAR 31.109.



1631.205-78  FEHBP printed material costs.

    Unless OPM determines that it is in the best interest of the FEHBP 
to do otherwise, if a carrier orders printed material that is available 
from the Government Printing Office (GPO) under the ``rider system'' 
from another source, the allowable contract charges shall be the lesser 
of the amount actually paid or the cost that would have been incurred 
had the carrier ridden OPM's GPO order.



1631.205-79  Mandatory statutory reserves.

    Charges for mandatory statutory reserves are not allowed unless 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract may 
not exceed an allocable portion of the amount actually set aside. If the 
statutory reserve is no longer required for the purpose for which it was 
created, and these funds become available for the general use of the 
carrier, a pro rata share based upon FEHBP's contribution to the total 
carrier's set aside shall be returned to the FEHBP in accordance with 
FAR 31.201-5.



1631.205-80  Major subcontractor service charges.

    In a subcontract for enrollment and eligibility determinations, 
administration of claims and payment of benefits, and payment or 
provision of actual health services, and/or assumption of insurance risk 
or underwriting, when costs are determined on the basis of actual costs 
incurred or experience rating, any amount that exceeds the allowable 
cost of the subcontract (whether entitled service charge, profit, fee, 
contribution to reserve, surplus, or any other title) is not allowable 
under the contract. Amounts which exceed allowable costs may be paid to 
a major subcontractor only from the service charge negotiated between 
OPM and the Carrier.



1631.205-81  Inferred reasonableness.

    If the carrier follows the notification and consent requirements of 
paragraphs (a), (b) and (c) of 1652.244-70, and subsequently obtains the 
Contracting officer's consent or ratification, then the reasonableness 
of the subcontract's costs shall be inferred.

[70 FR 31382, June 1, 2005]



1631.205-82  Audits.

    Carriers should ensure that the public accounting firms with which 
they contract for audits of FEHB accounts

[[Page 135]]

are registered with the Public Company Accounting Oversight Board 
(PCAOB).

[71 FR 3015, Jan. 19, 2006]



PART 1632_CONTRACT FINANCING--Table of Contents



                         Subpart 1632.1_General

Sec.
1632.170 Recurring premium payments to carriers.
1632.171 Clause--community-rated contracts.
1632.172 Clause--experience-rated contracts.

                      Subpart 1632.6_Contract Debts

1632.607 Tax credit.
1632.617 Contract clause.

                     Subpart 1632.7_Contract Funding

1632.770 Contingency reserve payments.
1632.771 Non-commingling of FEHBP funds.
1632.772 Contract clause.

                   Subpart 1632.8_Assignment of Claims

1632.806-70 Contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.



                         Subpart 1632.1_General



1632.170  Recurring premium payments to carriers.

    (a)(1) Recurring payments to carriers of community-rated plans. OPM 
will pay to carriers of community-rated plans the premium payments 
received for the plan less the amounts credited to the contingency and 
administrative reserves, amounts assessed under paragraph (a)(2) of this 
section, and amounts due for other contractual obligations. Premium 
payments will be due and payable not later than 30 days after receipt by 
the Federal Employees Health Benefits (FEHB) Fund.
    (2) The difference between one percent and the performance based 
percentage of the contract price described at 1615.404-4 will be 
multiplied by the carrier's subscription income for the year of 
performance and the resulting amount (performance adjustment) will be 
withheld from the net-to-carrier premium disbursement during the first 
quarter of the following contract period unless an alternative payment 
arrangement is made with the carrier's Contracting Officer. Amounts 
withheld from a community rated plan's premium disbursement will be 
deposited into the plan's Contingency Reserve.
    (3) Any subsidization penalty levied against a community rated plan 
as outlined in 48 CFR 1615.402(c)(3)(ii)(B) must be paid within 60 days 
from notification. If payment is not received within the 60 day period, 
OPM will withhold from the community rated carriers the periodic premium 
payment payable until fully recovered. OPM will deposit the withheld 
funds in the subsidization penalty reserve described in 5 CFR 
890.503(c)(6).
    (b)(1) Recurring payments to carriers of experience-rated plans. OPM 
will make payments on a letter of credit (LOC) basis. Premium payments 
received for the plan, less the amounts credited to the contingency and 
administrative reserves and amounts for other obligations due under the 
contract, will be made available for carrier drawdown not later than 30 
days after receipt by the FEHB Fund.
    (2) Withdrawals from the LOC account will be made on a checks-
presented basis. Under a checks-presented basis, drawdown on the LOC is 
delayed until the checks issued for FEHB Program disbursements are 
presented to the carrier's bank for payment.
    (3) OPM may grant a waiver of the restriction of LOC disbursements 
to a checks-presented basis if the carrier requests the waiver in 
writing and demonstrates to OPM's satisfaction that the checks-presented 
basis of LOC disbursements will result in significantly increased 
liability under the contract, or that the checks-presented basis of LOC 
disbursements is otherwise clearly and significantly detrimental to the 
operation of the plan. Payments to carriers that have been granted a 
waiver may be made by an alternative payment methodology, subject to OPM 
approval.

[57 FR 14360, Apr. 20, 1992, as amended at 63 FR 55338, Oct. 15, 1998; 
64 FR 36272, July 6, 1999; 65 FR 36386, June 8, 2000; 70 FR 31382, June 
1, 2005; 76 FR 38286, June 29, 2011; 80 FR 37180, June 30, 2015]

[[Page 136]]



1632.171  Clause--community-rated contracts.

    The clause at 1652.232-70 shall be inserted in all community-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]



1632.172  Clause--experience-rated contracts.

    The clause at 1652.232-71 shall be inserted in all experience-rated 
FEHBP contracts.

[57 FR 14360, Apr. 20, 1992]



                      Subpart 1632.6_Contract Debts



1632.607  Tax credit.

    FAR 32.607 has no practical application to FEHBP contracts. The 
statutory provisions at 5 U.S.C. 8906(c) and (d) authorize joint 
enrollee and Government contributions to the FEHBP Fund. Because the 
Fund is comprised of contributions by enrollees as well as the 
Government, carriers may not offset debts to the Fund by a tax credit 
which is solely a Government obligation.



1632.617  Contract clause.

    The clause at (FAR) 48 CFR 52.232-17 will be modified in all FEHBP 
contracts to exclude the words ``net of any applicable tax credit under 
the Internal Revenue Code (26 U.S.C. 1481).''

[59 FR 14765, Mar. 30, 1994]



                     Subpart 1632.7_Contract Funding



1632.770  Contingency reserve payments.

    (a) Payments from the contingency reserve shall be made in 
accordance with 5 CFR 890.503.
    (b) A carrier for an FEHB plan may apply to OPM at any time for a 
payment from the contingency reserve that is in addition to those 
amounts, if any, paid under 5 CFR 890.503(c)(1) through (c)(4), if the 
carrier can show good cause, such as, unexpected adverse claims 
experience. OPM will decide whether to allow the request in whole or in 
part and will advise the carrier of its decision. However, OPM shall not 
unreasonably withhold approval for amounts requested that exceed the 
plan's preferred minimum balance for the contingency reserve.



1632.771  Non-commingling of FEHBP funds.

    (a) This section applies to contracts based on cost analysis.
    (b) Carrier or underwriter commingling of FEHBP funds with those 
from other sources makes it difficult to precisely determine FEHBP cash 
balances at any given time or to precisely determine investment income 
attributable to FEHBP invested assets.
    (c) FEHBP funds shall be maintained separately from other cash and 
investments of the carrier or underwriter. Cash and investment balances 
reported on FEHBP Annual Accounting Statements must agree with the 
carrier's books and records.
    (d) This requirement may be waived by the contracting officer in 
accordance with the clause at 1652.232-72 when adequate accounting and 
other controls are in effect. If the requirement is waived, the waiver 
will remain in effect until it is withdrawn by OPM. The waiver shall be 
withdrawn if OPM determines that the accounting controls are no longer 
adequate to properly account for FEHBP funds.

[52 FR 16043, May 1, 1987, as amended at 70 FR 31382, June 1, 2005]



1632.772  Contract clause.

    The clause at 1652.232-72 shall be included in all contracts that 
are based on cost analysis.

[52 FR 16043, May 1, 1987, as amended at 70 FR 31382, June 1, 2005]



                   Subpart 1632.8_Assignment of Claims



1632.806-70  Contract clause.

    The clause set forth in 1652.232-73 shall be inserted in all FEHBP 
contracts.

[55 FR 27415, July 2, 1990]

                          PART 1633 [RESERVED]

[[Page 137]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT





PART 1642_CONTRACT ADMINISTRATION--Table of Contents



         Subpart 1642.12_Novation and Change-of-Name Agreements

Sec.
1642.1201 Definitions.
1642.1204 Agreement to recognize a successor in interest (novation 
          agreement).
1642.1205 Agreement to recognize carrier's change of name.

  Subpart 1642.70_Management Agreement (in Lieu of Novation Agreement)

1642.7001 Management agreement.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 59 FR 14765, Mar. 30, 1994, unless otherwise noted.



         Subpart 1642.12_Novation and Change-of-Name Agreements



1642.1201  Definitions.

    The definitions at (FAR) 48 CFR 42.1201 shall have the same meaning 
for this subpart.



1642.1204  Agreement to recognize a successor in interest
(novation agreement).

    (a) (FAR) 48 CFR 42.1204 shall be implemented as provided in this 
section. The contracting officer shall insert the following agreement in 
all FEHBP contracts for use when the contractor's assets or the entire 
portion of the assets pertinent to the performance of the contract, as 
determined by the Government, are transferred.

                           Novation Agreement

    The (insert corporate name) (Transferor), a corporation duly 
organized and existing under the laws of (insert State) with its 
principal office in (insert city, state); the (insert corporate name) 
(Transferee), (if appropriate add ``formerly known as the ______________ 
Corporation'') a corporation duly organized and existing under the laws 
of (insert State) with its principal office in (insert city); and the 
UNITED STATES OF AMERICA (Government) enter into this Agreement 
effective (insert date transfer of assets became effective under 
applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number __ with the Transferor. The term contracts, as used in this 
Agreement, means the contract cited in this paragraph and all other 
contracts and purchase orders, including any and all amendments and 
modifications made between the Government and the Transferor before the 
effective date of this Agreement (whether or not performance and payment 
have been completed and releases executed if the Government or the 
Transferor has any remaining rights, duties, or obligations under these 
contracts and purchase orders).
    (2) As of _____________ 19__ (insert date transfer of assets became 
effective under applicable State law), the Transferor has transferred to 
the Transferee all the assets of the Transferor, or the entire portion 
of the Transferor's assets pertinent to performing the contract, as 
determined by OPM, by virtue of a(an) (insert term describing the legal 
transaction involved) between the Transferor and the Transferee.
    (3) The Transferee has acquired all the assets of the Transferor, or 
the entire portion of the Transferor's assets pertinent to performing 
the contract, as determined by OPM, by virtue of the transfer in 
paragraph (a)(1).
    (4) The Transferee has assumed all obligations and liabilities of 
the Transferor pertinent to performing the contract, as determined by 
OPM, by virtue of the transfer in paragraph (a)(1).
    (5) The Transferee is in a position to fully perform all obligations 
that may exist under the contract.
    (6) It is consistent with the Government's interest to recognize the 
Transferee as the successor party to the contract.
    (7) Evidence of the transfer in paragraph (a)(1) has been filed with 
the Government.
    (8) [If applicable:] A certificate dated ____________, 19__, signed 
by the Secretary of State of (insert State), to the effect that the 
corporate name of (insert old corporate name) was changed to (insert new 
corporate name) on ___________, 19__, has been filed with the 
Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT BY THIS 
AGREEMENT--
    (1) The Transferor confirms the transfer to the Transferee, and 
waives any claims and rights against the Government or the Federal 
Employees Health Benefits Fund that it now has or may have in the future 
in connection with the contract.

[[Page 138]]

    (2) The Transferee agrees to be bound by and to perform the contract 
in accordance with the conditions contained in the contract. The 
Transferee also assumes all obligations and liabilities of, and all 
claims against, the Transferor pertinent to the contract, as determined 
by OPM, as if the Transferee were the original party to the contract.
    (3) The Transferee ratifies all previous actions taken by the 
Transferor with respect to the contract, with the same force and effect 
as if the action had been taken by the Transferee.
    (4) The Government recognizes the Transferee as the Transferor's 
successor in interest in and to the contract. The Transferee by this 
Agreement becomes entitled to all rights, titles, and interests of the 
Transferor in and to the contract as if the Transferee were the original 
party to the contract. Following the effective date of this Agreement, 
the terms Carrier and Contractor as used in the contract, shall refer to 
the Transferee.
    (5) Except as expressly provided in this Agreement, nothing in it 
shall be construed as a waiver of any rights of the Government against 
the Transferor.
    (6) All payments and reimbursements previously made by the 
Government to the Transferor, and all other previous actions taken by 
the Government under the contract, shall be considered to have 
discharged those parts of the Government's obligations under the 
contract. All payments and reimbursements made by the Government after 
the date of this Agreement in the name of or to the Transferor shall 
have the same force and effect as if made to the Transferee, and shall 
constitute a complete discharge of the Government's obligations under 
the contract, to the extent of the amounts paid or reimbursed.
    (7) The Transferor and the Transferee agree that the Government is 
not obligated to pay or reimburse either of them for, or otherwise give 
effect to, any costs, taxes, or other expenses, or any related 
increases, directly or indirectly arising out of or resulting from the 
transfer of this Agreement, other than those that the Government in the 
absence of this transfer or Agreement would have been obligated to pay 
or reimburse under the terms of the contract.
    (8) The Transferor guarantees payment of all liabilities and the 
performance of all obligations that the Transferee (i) assumes under 
this Agreement or (ii) may undertake in the future should this contract 
be modified under its terms and conditions. The Transferor waives notice 
of, and consents to, any such future modifications.
    (9) The contract shall remain in full force and effect, except as 
modified by this Agreement. Each party has executed this Agreement 
effective (insert the date transfer of assets became effective under 
applicable State law).

UNITED STATES OF AMERICA,
By ___________ Date ___________
Title ______________

    (Enter Transferor's name)

By ___________ Date ___________
    Title _________________

    (Corporate Seal)

    (Enter Transferee's name)

By ____________
Title _______________

    (Corporate Seal)

                               Certificate

    I, _______________, certify that I am the Secretary of (insert name 
of Transferor); that _________________, who signed this Agreement for 
this corporation, was then _____________ of this corporation; and that 
this Agreement was duly signed for and on behalf of this corporation by 
authority of its governing body and within the scope of its corporate 
powers.
    Witness my hand and the seal of this corporation this ___ day of 
____________, 19__.

By ____________
    (Corporate Seal)

                               Certificate

    I, ___________, certify that I am the Secretary of (insert name of 
Transferee); that ____________, who signed this Agreement for this 
corporation, was then __________ of this corporation; and that this 
Agreement was duly signed for and on behalf of this corporation by 
authority of its governing body and within the scope of its corporate 
powers.
    Witness my hand and the seal of this corporation this __ day of 
_____________ 19__,

By______________________________________________________________________
    (Corporate Seal)

                           (End of agreement)

    (b) Failure to submit the properly completed and signed Novation 
Agreement in a timely manner shall be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.
    (c) The Contracting Officer shall terminate the contract if it is 
determined

[[Page 139]]

not to be in the Government's interest to recognize a successor in 
interest to the contract. The effective date will be decided by the 
Contracting Officer after considering the best interests of FEHBP 
enrollees.



1642.1205  Agreement to recognize carrier's change of name.

    (a) (FAR) 42.1205 shall be implemented as provided in this section. 
The Contracting Officer shall insert the following Agreement in all 
FEHBP contracts for use when the carrier changes its name and the 
Government's and contractor's rights and obligations remain unaffected.

                        Change-of-Name Agreement

    The (insert new Carrier name), a corporation duly organized and 
existing under the laws of (insert State), and the UNITED STATES OF 
AMERICA (Government), enter into this Agreement effective (insert date 
when the change of name became effective under applicable State law).
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the Office of Personnel Management (OPM), has entered into Contract 
Number _______ with the (insert old Carrier name). The term contracts as 
used in this Agreement means the contract cited in this paragraph and 
all other contracts and purchase orders and all modifications thereto 
made by the Government and the Contractor before the effective date of 
this Agreement (whether or not performance and payment have been 
completed and releases executed if the OPM or the Carrier has any 
remaining rights, duties, or obligations under these contracts and 
purchase orders).
    (2) The (insert old Carrier name), by an amendment to its 
certificate of incorporation, dated __________, 19__, has changed its 
corporate name to (insert new Carrier name).
    (3) This amendment accomplishes a change of corporate name only and 
all rights and obligations of the Government and the Carrier under the 
contract are unaffected by this change.
    (4) Documentary evidence of this change of corporate name has been 
filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT:
    (1) The contract is amended by substituting the name `` (insert new 
Carrier name)'' for the name ``(insert old Carrier name)'' wherever it 
appears in the contract; and
    (2) Each party has executed this Agreement effective the day and 
year stated in paragraph (a)(2).

UNITED STATES OF AMERICA,

_______________ Date _________
Title
    (Enter new Carrier name)

By ____________ Date _________

Title___________________________________________________________________
    (Corporate Seal)

                               Certificate

    I, _________________, certify that I am the Secretary of (insert new 
Carrier name); that __________________, who signed this Agreement for 
this corporation, was then (insert position held) of this corporation; 
and that this Agreement was duly signed for and on behalf of this 
corporation by authority of its governing body and within the scope of 
its corporate powers.
    Witness my hand and the seal of this corporation this __ day of 
_____________ 19__.

By______________________________________________________________________
    (Corporate Seal)

                           (End of agreement)

    (b) Failure to submit the properly completed and signed Change-of-
Name Agreement in a timely manner may be cause for termination of the 
contract by OPM in accordance with FEHBAR 1652.249-70.



  Subpart 1642.70_Management Agreement (in Lieu of Novation Agreement)



1642.7001  Management agreement.

    When it is in the best interest of FEHBP enrollees to continue a 
contract for an interim period after the carrier discontinues its 
operations and has entered into a Purchase and Sale Agreement (or other 
descriptive term), but before a successor in interest has been 
recognized by OPM, the carrier may submit for OPM approval a Management 
Agreement that enables it to continue a contract through an agreement 
with a third party to administer the day-to-day performance of the 
contract. Examples of situations in which a Management Agreement may be 
accepted by OPM are:

[[Page 140]]

    (a) When a transfer of assets does not meet the criteria for a 
novation;
    (b) While a request for a novation is pending;
    (c) While awaiting a decision on a request for a novation;
    (d) As an interim measure, when the timing of a transfer of assets 
or the timing of a carrier's withdrawal make administration of the 
contract inconvenient;
    (e) When it is not in the interests of the Government to either 
recognize a successor in interest or to immediately terminate the 
existing FEHBP contract.



PART 1643_CONTRACT MODIFICATIONS--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47575, Sept. 10, 1997, unless otherwise noted.



                         Subpart 1643.2_Changes



1643.205-70  Contract clause.

    The clause set forth in section 1652.243-70 shall be inserted in all 
FEHB Program contracts.



PART 1644_SUBCONTRACTING POLICIES AND PROCEDURES--Table of Contents



                         Subpart 1644.1_General

Sec.
1644.170 Policy for FEHB Program subcontracting.

                 Subpart 1644.2_Consent to Subcontracts

1644.270 FEHBP contract clause.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16043, May 1, 1987, unless otherwise noted.



                         Subpart 1644.1_General



1644.170  Policy for FEHB Program subcontracting.

    (a) General policy. Carriers must follow commercially reasonable 
procurement procedures that comply, when required, with the Federal 
Acquisition Regulations (FAR) policies and procedures relating to 
competition and contract pricing for the acquisition of both commercial 
and noncommercial items.
    (b) Consent. For all experience-rated contracts, carriers will 
notify the Contracting officer in writing at least 30 days in advance of 
entering into any subcontract or subcontract modification, or as 
otherwise specified by the contract, if: the amount of the subcontract 
or the amount of the subcontract and modification charged to the FEHB 
Program equals or exceeds $550,000 and is at least 25 percent of the 
total subcontract's costs. The amount of the dollar charge to the FEHB 
Program shall be adjusted by the same amount and at the same time as any 
change to the threshold for application of the Truth in Negotiations Act 
pursuant to 41 U.S.C. 254b(a)(7). Failure to provide advance notice may 
result in a Contracting officer's disallowance of subcontract costs or a 
penalty when considering the performance aspect of the carriers' service 
charge.
    (1) All subcontracts or subcontract modifications that equal or 
exceed the threshold are subject to audit under FAR 52.215-2 ``Audit and 
Records-Negotiations'' if based on cost analysis, and subject to the 
provisions of 48 CFR 1646.301 and 1652.246-70 ``FEHB Inspection'' if 
based on price analysis.
    (2) In determining whether the amount chargeable to the FEHB Program 
contract for a given subcontract or modification equals or exceeds the 
$550,000 threshold, the following rules apply:
    (i) For initial advance notification, the carrier shall provide the 
total cost/price for the base year.
    (ii) The carrier shall provide advance notification of any 
modifications, options, including quantity or service options and option 
periods, and renewals of ``evergreen contracts'' that cause the total 
price to equal or exceed the threshold. OPM's review will be of the 
modification(s), itself, but documentation for the original subcontract 
will be required to perform the review.
    (iii) The $550,000 threshold will be adjusted by the same amount and 
at the

[[Page 141]]

same time as any change to the threshold for application of the Truth in 
Negotiations Act.

[70 FR 31382, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



                 Subpart 1644.2_Consent to Subcontracts



1644.270  FEHBP contract clause.

    The clause set forth at section 1652.244-70 shall be inserted in all 
experience rated FEHBP contracts.

[62 FR 47576, Sept. 10, 1997]



PART 1645_GOVERNMENT PROPERTY--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 62 FR 47576, Sept. 10, 1997, unless otherwise noted.



                   Subpart 1645.3_Providing Equipment



1645.303-70  Contract clause.

    The clause set forth in section 1652.245-70 shall be inserted in all 
FEHB Program contracts.



PART 1646_QUALITY ASSURANCE--Table of Contents



              Subpart 1646.2_Contract Quality Requirements

Sec.
1646.201 Contract Quality Policy.

                     Subpart 1646.3_Contract Clauses

1646.301 Contractor inspection requirements.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



              Subpart 1646.2_Contract Quality Requirements



1646.201  Contract Quality Policy.

    (a) This section prescribes general policies and procedures to 
ensure that services acquired under the FEHB contract conform to the 
contract's quality and audit requirements.
    (b) OPM will periodically evaluate the contractor's system of 
internal controls under the quality assurance program required by the 
contract and will acknowledge in writing whether or not the system is 
consistent with the requirements set forth in the contract. After the 
initial review, subsequent reviews may be limited to changes in the 
contractor's internal control guidelines. However, a limited review does 
not diminish the contractor's obligation to apply the full internal 
control system.
    (c) OPM will issue specific quality performance standards for the 
FEHB contracts and will inform carriers of the applicable standards 
prior to negotiations for the contract year. OPM will benchmark its 
standards against standards generally accepted in the insurance 
industry. The contracting officer may authorize nationally recognized 
standards to be used to fulfill this requirement. FEHB carriers will 
comply with the performance standards issued by OPM.
    (d) In addition to reviewing carriers' quality assurance programs, 
OPM will periodically audit contractors, subcontractors and Large 
Providers' books and records to assure compliance with FEHB law, 
regulations, and the contract.

[70 FR 31382, June 1, 2005]



                     Subpart 1646.3_Contract Clauses



1646.301  Contractor inspection requirements.

    The clause set forth at 1652.246-70 shall be inserted in all FEHBP 
contracts.

[52 FR 16044, May 1, 1987]



PART 1649_TERMINATION OF CONTRACTS--Table of Contents



Sec.
1649.002-70 Applicability of the FAR to FEHB acquisitions.

                    Subpart 1649.1_General Principles

1649.101-70 FEHBP renewal and withdrawal of approval clause.
1649.101-71 FEHBP termination for convenience clause.
1649.101-72 FEHBP termination for default clause.


[[Page 142]]


    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



1649.002-70  Applicability of the FAR to FEHB acquisitions.

    (a) Termination of FEHB contracts because of withdrawal of approval 
is controlled by 5 U.S.C. 8902(e) and 5 CFR 890.204.
    (b) Termination of FEHB contracts because of nonrenewal of the 
contract at the end of the contract term is controlled by 5 U.S.C. 
8902(a) and 5 CFR 890.205.
    (c) The procedures for settlement of contracts after they are 
terminated shall be those contained in FAR part 49.

[57 FR 19387, May 6, 1992]



                    Subpart 1649.1_General Principles



1649.101-70  FEHBP renewal and withdrawal of approval clause.

    The clause in 1652.249-70 shall be inserted in all FEHBP contracts.



1649.101-71  FEHBP termination for convenience clause.

    The clause set forth in 1652.249-71 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]



1649.101-72  FEHBP termination for default clause.

    The clause set forth in 1652.249-72 shall be inserted in all FEHBP 
contracts.

[62 FR 47576, Sept. 10, 1997]

[[Page 143]]



                     SUBCHAPTER H_CLAUSES AND FORMS





PART 1652_CONTRACT CLAUSES--Table of Contents



Sec.
1652.000 Applicable clauses.

                  Subpart 1652.2_Texts of FEHBP Clauses

1652.203-70 Misleading, deceptive, or unfair advertising.
1652.204-70 Contractor records retention.
1652.204-71 Coordination of Benefits.
1652.204-72 Filing health benefit claims/court review of disputed 
          claims.
1652.204-73 Taxpayer Identification Number.
1652.204-74 Large provider agreements.
1652.215-70 Rate Reduction for Defective Pricing or Defective Cost or 
          Pricing Data.
1652.215-71 Investment Income.
1652.216-70 Accounting and price adjustment.
1652.216-71 Accounting and Allowable Cost.
1652.222-70 Notice of significant events.
1652.224-70 Confidentiality of records.
1652.229-70 Taxes--Foreign Negotiated benefits contracts.
1652.232-70 Payments--community-rated contracts.
1652.232-71 Payments--experience-rated contracts.
1652.232-72 Non-commingling of FEHBP funds.
1652.232-73 Approval for the Assignment of Claims.
1652.243-70 Changes--Negotiated benefits contracts.
1652.244-70 Subcontracts.
1652.245-70 Government property (negotiated benefits contracts).
1652.246-70 FEHB Inspection.
1652.249-70 Renewal and withdrawal of approval.
1652.249-71 FEHBP termination for convenience of the government--
          negotiated benefits contracts.
1652.249-72 FEHBP termination for default--negotiated benefits 
          contracts.

                   Subpart 1652.3_FEHBP Clause Matrix

1652.370 Use of the matrix.

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 52 FR 16044, May 1, 1987, unless otherwise noted.



1652.000  Applicable clauses.

    The clauses of FAR subpart 52.2 shall be applicable to FEHBP 
contracts as specified in the FEHBAR Clause Matrix in subpart 1652.3.

                        Section and Clause Title

52.202-1 Definitions.
52.203-3 Gratuities.
52.203-5 Covenant Against Contingent Fees.
52.203-7 Anti-Kickback Procedures.
52.203-12 Limitation on Payments to Influence Certain Federal 
          Transactions.
52.209-6 Protecting the Government's Interest When Subcontracting With 
          Contractors Debarred, Suspended, or Proposed for Debarment.
52.215-2 Audit and Records--Negotiation.
52.215-22 Price Reduction for Defective Cost or Pricing Data.
52.215-24 Subcontractor Cost or Pricing Data.
52.215-27 Termination of Defined Benefit Pension Plans.
52.215-30 Facilities Capital Cost of Money.
52.215-31 Waiver of Facilities Capital Cost of Money.
52.215-39 Reversion or Adjustment of Plans for Postretirement Benefits 
          Other Than Pensions (PRB).
52.219-8 Utilization of Small, Small Disadvantaged and Women-Owned Small 
          Business Concerns.
52.222-1 Notice to the Government of Labor Disputes.
52.222-3 Convict Labor.
52.222-4 Contract Work Hours and Safety Standards Act--Overtime 
          Compensation--General.
52.222-21 Certification of Nonsegregated Facilities.
52.222-26 Equal Opportunity.
52.222-28 Equal Opportunity Preaward Clearance of Subcontracts.
52.222-29 Notification of Visa Denial.
52.222-35 Affirmative Action for Special Disabled and Vietnam Era 
          Veterans.
52.222-36 Affirmative Action for Handicapped Workers.
52.222-37 Employment Reports on Special Disabled Veterans and Veterans 
          of the Vietnam Era.
52.223-2 Clean Air and Water.
52.223-6 Drug-Free Workplace.
52.227-1 Authorization and Consent.
52.227-2 Notice and Assistance Regarding Patent and Copyright 
          Infringement.
52.229-3 Federal, State,and Local Taxes.
52.229-4 Federal, State, and Local Taxes (Noncompetitive Contract).
52.229-5 Taxes--Contracts Performed in U.S. Possessions or Puerto Rico.
52.230-2 Cost Accounting Standards.
52.230-3 Disclosure and Consistency of Cost Accounting Practices.
52.230-5 Administration of Cost Accounting Standards.
52.232-8 Discounts for Prompt Payment.
52.232-17 Interest.

[[Page 144]]

52.232-23 Assignment of Claims.
52.232-33 Mandatory Information For Electronic Funds Transfer Payment.
52.233-1 Disputes.
52.242-1 Notice of Intent to Disallow Costs.
52.242-3 Penalties for Unallowable Costs.
52.242-13 Bankruptcy.
52.244-5 Competition in Subcontracting.
52.244-6 Subcontracts for Commercial Items and Commercial Components.
52.246-25 Limitation of Liability--Services.
52.247-63 Preference for U.S.-Flag Air Carriers.
52.251-1 Government Supply Sources.
52.232-2 Clauses Incorporated by Reference.
52.252-4 Alterations in Contract.
52.252-6 Authorized Deviations in Clauses.

[62 FR 47576, Sept. 10, 1997]



                  Subpart 1652.2_Texts of FEHBP Clauses



1652.203-70  Misleading, deceptive, or unfair advertising.

    As prescribed in 1603.7003, the following clause shall be inserted 
in all FEHBP contracts:

         Misleading, Deceptive, or Unfair Advertising (JAN 1991)

    (a) The Carrier agrees that any advertising material, including that 
labeled promotional material, marketing material, or supplemental 
literature, shall be truthful and not misleading.
    (b) Criteria to assess compliance with paragraph (a) of this clause 
are available in the FEHB Supplemental Literature Guidelines which are 
developed by OPM and should be used, along with the additional 
guidelines set forth in FEHBAR 1603.702, as the primary guide in 
preparing material; further guidance is provided in the NAIC ``Rules 
Governing Advertising of Accident and Sickness Insurance With 
Interpretive Guidelines.'' Guidelines are periodically updated and 
provided to the Carrier by OPM.
    (c) Failure to conform to paragraph (a) of this clause may result in 
a reduction in the service charge, if appropriate, and corrective action 
to protect the interest of Federal Members. Corrective action will be 
appropriate to the circumstances and may include, but is not limited to 
the following actions by OPM:
    (1) Directing the Carrier to cease and desist distribution, 
publication, or broadcast of the material;
    (2) Directing the Carrier to issue corrections at the Carrier's 
expense and in the same manner and media as the original material was 
made; and
    (3) Directing the Carrier to provide, at the Carrier's expense, the 
correction in writing by certified mail to all enrollees of the Plan(s) 
that had been the subject of the original material.
    (d) Egregious or repeated offenses may result in the following 
action by OPM:
    (1) Suspending new enrollments in the Carrier's Plan(s);
    (2) Providing Enrollees an opportunity to transfer to another plan; 
and
    (3) Terminating the contract in accordance with Section 1.15, 
Renewal and Withdrawal of Approval.
    (e) Prior to taking action as described in paragraphs (c) and (d) of 
this clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (f) The Carrier shall incorporate this clause in subcontracts with 
its underwriter, if any, and other subcontractors directly involved in 
the preparation or distribution of such advertising material and shall 
substitute ``Contractor'' or other appropriate reference for the term 
``Carrier.''

                             (End of clause)

[55 FR 27415, July 2, 1990, as amended at 62 FR 47576, Sept. 10, 1997]



1652.204-70  Contractor records retention.

    As prescribed in 1604.705 the following clause will be inserted in 
all FEHB Program contracts.

                 Contractor Records Retention (JUL 2005)

    Notwithstanding the provisions of Section 5.7 (FAR 52.215-2(f)) 
``Audit and Records--Negotiation'' the carrier will retain and make 
available all records applicable to a contract term that support the 
annual statement of operations and, for contracts that equal or exceed 
the threshold at FAR 15.403-4(a)(1), the rate submission for that 
contract term for a period of six years after the end of the contract 
term to which the records relate. This includes all records of Large 
Provider Agreements and subcontracts that equal or exceed the threshold 
requirements. In addition, individual enrollee and/or patient claim 
records will be maintained for six years after the end of the contract 
term to which the claim records relate. This clause is effective 
prospectively as of the 2005 contract year.

                             (End of clause)

[70 FR 31382, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



1652.204-71  Coordination of Benefits.

    As prescribed in 1604.7001, the following clause shall be inserted 
in all FEHBP contracts:

[[Page 145]]

                   Coordination of Benefits (JAN 1991)

    (a) The Carrier shall coordinate the payment of benefits under this 
contract with the payment of benefits under Medicare, other group health 
benefits coverages, and the payment of medical and hospital costs under 
no-fault or other automobile insurance that pays benefits without regard 
to fault.
    (b) The Carrier shall not pay benefits under this contract until it 
has determined whether it is the primary carrier or unless permitted to 
do so by the Contracting Officer.
    (c) In coordinating benefits between plans, the Carrier shall follow 
the order of precedence established by the NAIC Model Guidelines for 
Coordination of Benefits (COB) as specified by OPM.
    (d) Where (1) the Carrier makes payments under this contract which 
are subject to COB provisions; (2) the payments are erroneous, not in 
accordance with the terms of the contract, or in excess of the 
limitations applicable under this contract; and (3) the Carrier is 
unable to recover such COB overpayments from the Member or the providers 
of services or supplies, the Contracting Officer may allow such amounts 
to be charged to the contract; the Carrier must be prepared to 
demonstrate that it has made a diligent effort to recover such COB 
overpayments.
    (e) COB savings shall be reported by experience rated carriers each 
year along with the Carrier's annual accounting statement in a form 
specified by OPM.
    (f) Changes in the order of precedence established by the NAIC Model 
Guidelines implemented after January 1 of any given year shall be 
required no earlier than the beginning of the following contract term.

                             (End of clause)

[55 FR 27415, July 2, 1990]



1652.204-72  Filing health benefit claims/court review of disputed claims.

    As prescribed in 1604.7101 of this chapter, the following clause 
must be inserted in all FEHB Program contracts.

 Filing Health Benefit Claims/Court Review of Disputed Claims (MAR 1995)

    (a) General. (1) The Carrier resolves claims filed under the Plan. 
All health benefit claims must be submitted initially to the Carrier. If 
the Carrier denies a claim (or a portion of a claim), the covered 
individual may ask the Carrier to reconsider its denial. If the Carrier 
affirms its denial or fails to respond as required by paragraph (b) of 
this clause, the covered individual may ask OPM to review the claim. A 
covered individual must exhaust both the Carrier and OPM review 
processes specified in this clause before seeking judicial review of the 
denied claim.
    (2) This clause applies to covered individuals and to other 
individuals or entities who are acting on the behalf of a covered 
individual and who have the covered individual's specific written 
consent to pursue payment of the disputed claim.
    (b) Time limits for reconsidering a claim. (1) The covered 
individual has 6 months from the date of the notice to the covered 
individual that a claim (or a portion of a claim) was denied by the 
Carrier in which to submit a written request for reconsideration to the 
Carrier. The time limit for requesting reconsideration may be extended 
when the covered individual shows that he or she was prevented by 
circumstances beyond his or her control from making the request within 
the time limit.
    (2) The Carrier has 30 days after the date of receipt of a timely-
filed request for reconsideration to:
    (i) Affirm the denial in writing to the covered individual;
    (ii) Pay the bill or provide the service; or
    (iii) Request from the covered individual or provider additional 
information needed to make a decision on the claim. The Carrier must 
simultaneously notify the covered individual of the information 
requested if it requests additional information from a provider. The 
Carrier has 30 days after the date the information is received to affirm 
the denial in writing to the covered individual or pay the bill or 
provide the service. The Carrier must make its decision based on the 
evidence it has if the covered individual or provider does not respond 
within 60 days after the date of the Carrier's notice requesting 
additional information. The Carrier must then send written notice to the 
covered individual of its decision on the claim. The covered individual 
may request OPM review as provided in paragraph (b)(3) of this clause if 
the Carrier fails to act within the time limit set forth in this 
paragraph.
    (3) The covered individual may write to OPM and request that OPM 
review the Carrier's decision if the Carrier either affirms its denial 
of a claim or fails to respond to a covered individual's written request 
for reconsideration within the time limit set forth in paragraph (b)(2) 
of this clause. The covered individual must submit the request for OPM 
review within the time limit specified in paragraph (e)(1) of this 
clause.
    (4) The Carrier may extend the time limit for a covered individual's 
submission of additional information to the Carrier when the covered 
individual shows he or she was not notified of the time limit or was 
prevented by circumstances beyond his or her control from submitting the 
additional information.
    (c) Information required to process requests for reconsideration. 
(1) The covered individual

[[Page 146]]

must put the request to the Carrier to reconsider a claim in writing and 
give the reasons, in terms of applicable brochure provisions, that the 
denied claim should have been approved.
    (2) If the Carrier needs additional information from the covered 
individual to make a decision, it must:
    (i) Specifically identify the information needed;
    (ii) State the reason the information is required to make a decision 
on the claim;
    (iii) Specify the time limit (60 days after the date of the 
Carrier's request) for submitting the information; and
    (iv) State the consequences of failure to respond within the time 
limit specified, as set out in paragraph (b)(2) of this section.
    (d) Carrier determinations. The Carrier must provide written notice 
to the covered individual of its determination. If the Carrier affirms 
the initial denial, the notice must inform the covered individual of:
    (1) The specific and detailed reasons for the denial;
    (2) The covered individual's right to request a review by OPM; and
    (3) The requirement that requests for OPM review must be received 
within 90 days after the date of the Carrier's denial notice and include 
a copy of the denial notice as well as documents to support the covered 
individual's position.
    (e) OPM review. (1) If the covered individual seeks further review 
of the denied claim, the covered individual must make a request to OPM 
to review the Carrier's decision. Such a request to OPM must be made:
    (i) Within 90 days after the date of the Carrier's notice to the 
covered individual that the denial was affirmed; or
    (ii) If the Carrier fails to respond to the covered individual as 
provided in paragraph (b)(2) of this clause, within 120 days after the 
date of the covered individual's timely request for reconsideration by 
the Carrier; or
    (iii) Within 120 days after the date the Carrier requests additional 
information from the covered individual, or the date the covered 
individual is notified that the Carrier is requesting additional 
information from a provider. OPM may extend the time limit for a covered 
individual's request for OPM review when the covered individual shows he 
or she was not notified of the time limit or was prevented by 
circumstances beyond his or her control from submitting the request for 
OPM review within the time limit.
    (2) In reviewing a claim denied by the Carrier, OPM may:
    (i) Request that the covered individual submit additional 
information;
    (ii) Obtain an advisory opinion from an independent physician;
    (iii) Obtain any other information as may in its judgment be 
required to make a determination; or
    (iv) Make its decision based solely on the information the covered 
individual provided with his or her request for review.
    (3) When OPM requests information from the Carrier, the Carrier must 
release the information within 30 days after the date of OPM's written 
request unless a different time limit is specified by OPM in its 
request.
    (4) Within 90 days after receipt of the request for review, OPM will 
either:
    (i) Give a written notice of its decision to the covered individual 
and the Carrier; or
    (ii) Notify the individual of the status of the review. If OPM does 
not receive requested evidence within 15 days after expiration of the 
applicable time limit in paragraph (e)(3) of this clause, OPM may make 
its decision based solely on information available to it at that time 
and give a written notice of its decision to the covered individual and 
to the Carrier.
    (f) OPM, upon its own motion, may reopen its review if it receives 
evidence that was unavailable at the time of its original decision.
    (g) Court review. (1) A suit to compel enrollment under Sec.  
890.102 of Title 5, Code of Federal Regulations, must be brought against 
the employing office that made the enrollment decision.
    (2) A suit to review the legality of OPM's regulations under this 
part must be brought against the Office of Personnel Management.
    (3) Federal Employees Health Benefits (FEHB) carriers resolve FEHB 
claims under authority of Federal statute (chapter 89, title 5, United 
States Code). A covered individual may seek judicial review of OPM's 
final action on the denial of a health benefits claim. A legal action to 
review final action by OPM involving such denial of health benefits must 
be brought against OPM and not against the Carrier or the Carrier's 
subcontractors. The recovery in such a suit shall be limited to a court 
order directing OPM to require the Carrier to pay the amount of benefits 
in dispute.
    (4) An action under paragraph (3) of this clause to recover on a 
claim for health benefits:
    (i) May not be brought prior to exhaustion of the administrative 
remedies provided in paragraphs (a) through (f) of this clause;
    (ii) May not be brought later than December 31 of the 3rd year after 
the year in which the care or service was provided; and
    (iii) Will be limited to the record that was before OPM when it 
rendered its decision affirming the Carrier's denial of benefits.

                             (End of clause)

[61 FR 15198, Apr. 5, 1996, as amended at 62 FR 47576, Sept. 10, 1997]

[[Page 147]]



1652.204-73  Taxpayer Identification Number.

    As prescribed in 1604.970, insert the following clause.

                Taxpayer Identification Number (JAN 2000)

    (a) Definitions. Common parent, as used in this provision, means 
that corporate entity that owns or controls an affiliated group of 
corporations that files its Federal income tax returns on a consolidated 
basis, and of which the Carrier is a member.
    Taxpayer Identification Number (TIN), as used in this provision, 
means the number required by the Internal Revenue Service (IRS) to be 
used by the Carrier in reporting income tax and other returns.
    (b) The Carrier must submit the information required in paragraphs 
(d) through (f) of this clause to comply with debt collection 
requirements of 31 U.S.C. 7701(c) and 3325(d), reporting requirements of 
26 U.S.C. 6041, 6041A, and 6050M, and implementing regulations issued by 
the IRS. The Carrier is subject to the payment reporting requirements 
described in Federal Acquisition Regulation (FAR) 4.904. The Carrier's 
failure or refusal to furnish the information will result in payment 
being withheld until the TIN number is provided.
    (c) The Government may use the TIN to collect and report on any 
delinquent amounts arising out of the Carrier's relationship with the 
Government (31 U.S.C. 7701(c)(3)). The TIN provided hereunder may be 
matched with IRS records to verify its accuracy.
    (d) Taxpayer Identification Number (TIN).

TIN:____________
    (e) Type of organization.

[squ] Sole proprietorship;
[squ] Partnership;
[squ] Corporate entity (not tax-exempt);
[squ] Corporate entity (tax-exempt);
[squ] Other ____________.

    (f) Common parent.

[squ] Carrier is not owned or controlled by a common parent as defined 
          in paragraph (a) of this clause.
[squ] Name and TIN of common parent:

Name ____________
TIN ____________

                             (End of clause)

[65 FR 36386, June 8, 2000]



1652.204-74  Large provider agreements.

    As prescribed by 1604.7202, the contracting officer will insert the 
following clause in all FEHB Program contracts based on cost analysis 
(experience-rated):

                  Large Provider Agreements (OCT 2005)

    (a) Notification and Information Requirements. (1) The experience-
rated Carrier must provide notice to the contracting officer of its 
intent to enter into or to make a significant modification of a Large 
Provider Agreement:
    (i) Not less than 60 days before entering into any Large Provider 
Agreement; and
    (ii) Not less than 60 days before exercising a renewal or other 
option, or significant modification to a Large Provider Agreement, when 
such action would result in total costs to the FEHB Program of an 
additional 20 percent or more above the existing contract. However, if a 
carrier is exercising a simple renewal or other option contemplated by a 
Large Provider Agreement that OPM previously reviewed, and there are no 
significant changes, then a statement to the effect that the renewal or 
other option is being exercised along with the dollar amount is 
sufficient notice.
    (2) The carrier's notification to the contracting officer must be in 
writing and must, at a minimum:
    (i) Describe the supplies and/or services the proposed provider 
agreement will require;
    (ii) Identify the proposed basis for reimbursement;
    (iii) Identify the proposed provider agreement, explain why the 
carrier selected the proposed provider, and what contracting method it 
used, where applicable, including the kind of competition obtained;
    (iv) Describe the methodology the carrier used to compute the 
provider's profit; and,
    (v) Describe provider risk provisions.
    (3) The Contracting officer may request from the carrier any 
additional information on a proposed provider agreement and its terms 
and conditions prior to a provider award and during the performance of 
the agreement.
    (4) Within 30 days of receiving the carrier's notification, the 
Contracting officer will give the carrier either written comments or 
written notice that there will be no comments. If the Contracting 
officer comments, the carrier must respond in writing within 10 calendar 
days, and explain how it intends to address any concerns.
    (5) When computing the carrier's service charge, the Contracting 
officer will consider how well the carrier complies with the provisions 
of this section, including the advance notification requirements, as an 
aspect of the carrier's performance factor.
    (6) The Contracting officer's review of any Large Provider 
Agreement, option, renewal, or modification will not constitute a 
determination of the acceptability of the terms and conditions of any 
provider agreement or

[[Page 148]]

of the allowability of any costs under the carrier's contract, nor will 
it relieve the carrier of any responsibility for performing the 
contract.
    (b) Records and Inspection. The carrier must insert in all Large 
Provider Agreements the requirement that the provider will retain and 
make available to the Government all records relating to the agreement 
that support the annual statement of operations and enrollee records--
Retain for 6 years after the agreement term ends.
    (c) Audit and Records--Negotiation. The provisions of FAR 52.215-2, 
``Audit and Records--Negotiation,'' when required, or FEHBAR 1652.246-
70, ``FEHB Inspection'' apply to all experience-rated Carriers' Large 
Provider Agreements. The Carrier will insert the clauses at FAR 52.215-
2, when applicable, or FEHBAR 1652.246-70 in all Large Provider 
Agreements. In FAR 52.215-2 the carrier will substitute:
    (1) The term ``Large Provider'' for the term ``Contractor'' 
throughout the clause, and
    (2) The term ``Large Provider Agreement'' for the term 
``Subcontracts'' in paragraph (g) of FAR 52.215-2. The term 
``Contracting officer'' will mean the FEHB Program Contracting officer 
at OPM. The carrier will be responsible for ensuring the Large Provider 
complies with the provisions set forth in the clause.
    (d) Prohibited Agreements. No provider agreement made under this 
contract will provide for payment on a cost-plus-a-percentage-of-cost 
basis.
    (e) The carrier will insert this clause, 1652.204-74, in all Large 
Provider Agreements.

                             (End of clause)

[70 FR 31382, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



1652.215-70  Rate Reduction for Defective Pricing or Defective Cost
or Pricing Data.

    As prescribed in 1615.407-1, the following clause shall be inserted 
in FEHBP contracts exceeding the threshold at FAR 15.403-4(a)(1) that 
are based on a combination of cost and price analysis (community rated):

 Rate Reduction for Defective Pricing or Defective Cost or Pricing Data 
                               (JAN 2004)

    (a) If any rate established in connection with this contract was 
increased because:
    (1) The Carrier submitted, or kept in its files in support of the 
FEHBP rate, cost or pricing data that were not complete, accurate, or 
current as certified in one of the Certificates of Accurate Cost or 
Pricing Data (FEHBAR 1615.406-2);
    (2) The Carrier submitted, or kept in its files in support of the 
FEHBP rate, cost or pricing data that were not accurate as represented 
in the rate reconciliation documents or MLR Calculation;
    (3) The Carrier developed FEHBP rates for traditional community 
rated plans with a rating methodology and structure inconsistent with 
that used to develop rates for a similarly sized subscriber group (see 
FEHBAR 1602.170-13) as certified in the Certificate of Accurate Cost or 
Pricing Data for Community Rated Carriers;
    (4) The Carrier, who is not mandated by the State to use traditional 
community rating, developed FEHBP rates with a rating methodology and 
structure inconsistent with its State-filed rating methodology (or if 
not required to file with the State, their standard written and 
established rating methodology) or inconsistent with the FEHB specific 
medical loss ratio (MLR) requirements (see FEHBAR 1602.170-13); or
    (5) The Carrier submitted or, kept in its files in support of the 
FEHBP rate, data or information of any description that were not 
complete, accurate, and current--then, the rate shall be reduced in the 
amount by which the price was increased because of the defective data or 
information.
    (b)(1) If the Contracting Officer determines under paragraph (a) of 
this clause that a price or cost reduction should be made, the Carrier 
agrees not to raise the following matters as a defense:
    (i) The Carrier was a sole source supplier or otherwise was in a 
superior bargaining position and thus the price of the contract would 
not have been modified even if accurate, complete, and current cost or 
pricing data had been submitted or maintained and identified.
    (ii) The Contracting Officer should have known that the cost or 
pricing data in issue were defective even though the Carrier took no 
affirmative action to bring the character of the data to the attention 
of the Contracting Officer.
    (iii) The contract was based on an agreement about the total cost of 
the contract and there was no agreement about the cost of each item 
procured under the contract.
    (iv) The Carrier did not submit or keep in its files a Certificate 
of Current Cost or Pricing Data.
    (2)(i) Except as prohibited by subdivision (b)(2)(ii) of this 
clause, an offset in an amount determined appropriate by the Contracting 
Officer based upon the facts shall be allowed against the amount of a 
contract price reduction if--
    (A) The Carrier certifies to the Contracting Officer that, to the 
best of the Carrier's knowledge and belief, the Carrier is entitled to 
the offset in the amount requested; and
    (B) The Carrier proves that the cost or pricing data were available 
before the date of

[[Page 149]]

agreement on the price of the contract (or price of the modification) 
and that the data were not submitted before such date.
    (ii) An offset shall not be allowed if--
    (A) The understated data was known by the Carrier to be understated 
when the Certificate of Current Cost or Pricing Data was signed; or
    (B) The Government proves that the facts demonstrate that the 
contract price would not have increased in the amount to be offset even 
if the available data had been submitted before the date of agreement on 
price.
    (c) When the Contracting Officer determines that the rates shall be 
reduced and the Government is thereby entitled to a refund or that the 
Government is entitled to a MLR penalty, the Carrier shall be liable to 
and shall pay the FEHB Fund at the time the overpayment is repaid or at 
the time the MLR penalty is paid--
    (1) Simple interest on the amount of the overpayment from the date 
the overpayment was paid from the FEHB Fund to the Carrier until the 
date the overcharge is liquidated. In calculating the amount of interest 
due, the quarterly rate determinations by the Secretary of the Treasury 
under the authority of 26 U.S.C. 6621(a)(2) applicable to the periods 
the overcharge was retained by the Carrier shall be used;
    (2) A penalty equal to the amount of overpayment, if the Carrier 
knowingly submitted cost or pricing data which was incomplete, 
inaccurate, or noncurrent; and,
    (3) Simple interest on the MLR penalty from the date on which the 
penalty should have been paid to the FEHB Fund to the date on which the 
penalty was or will be actually paid to the FEHB fund. The interest rate 
shall be calculated as specified in paragraph (c)(1) of this section.

                             (End of clause)

[62 FR 47576, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000; 70 FR 31383, June 1, 2005; 80 FR 32860, June 
10, 2015]



1652.215-71  Investment Income.

    As prescribed in 1615.470-1, the following clause shall be inserted 
in all FEHBP contracts based on cost analysis:

                      Investment Income (JAN 1998)

    (a) The Carrier shall invest and reinvest all FEHB funds on hand 
that are in excess of the funds needed to promptly discharge the 
obligations incurred under this contract. The Carrier shall seek to 
maximize investment income with prudent consideration to the safety and 
liquidity of investments.
    (b) All investment income earned on FEHB funds shall be credited to 
the Special Reserve on behalf of the FEHBP.
    (c) When the Contracting Officer concludes that the Carrier failed 
to comply with paragraph (a) or (b) of this clause, the Carrier shall 
credit the Special Reserve with investment income that would have been 
earned, at the rate(s) specified in paragraph (f) of this clause, had it 
not been for the Carrier's noncompliance. ``Failed to comply with 
paragraph (a) or (b)'' means: (1) Making any charges against the 
contract which are not allowable, allocable, or reasonable; or (2) 
failing to credit any income due the contract and/or failing to place 
excess funds, including subscription income and payments from OPM not 
needed to discharge promptly the obligations incurred under the 
contract, refunds, credits, payments, deposits, investment income 
earned, uncashed checks, or other amounts owed the Special Reserve, in 
income producing investments and accounts.
    (d) Investment income lost as a result of unallowable, unallocable, 
or unreasonable charges against the contract shall be paid from the 1st 
day of the contract term following the contract term in which the 
unallowable charge was made and shall end on the earlier of: (1) The 
date the amounts are returned to the Special Reserve (or the Office of 
Personnel Management); (2) the date specified by the Contracting 
Officer; or, (3) the date of the Contracting Officer's Final Decision.
    (e) Investment income lost as a result of failure to credit income 
due the contract or failure to place excess funds in income producing 
investments and accounts shall be paid from the date the funds should 
have been invested or appropriate income was not credited and shall end 
on the earlier of: (1) The date the amounts are returned to the Special 
Reserve (or the Office of Personnel Management); (2) the date specified 
by the Contracting Officer; or, (3) the date of the Contracting 
Officer's Final Decision.
    (f) The Carrier shall credit the Special Reserve for income due in 
accordance with this clause. All lost investment income payable shall 
bear simple interest at the quarterly rate determined by the Secretary 
of the Treasury under the authority of 26 U.S.C. 6621(a)(2) applicable 
to the periods in which the amount becomes due, as provided in 
paragraphs (d) and (e) of this clause.
    (g) The Carrier shall incorporate this clause into agreements with 
underwriters of the Carrier's FEHB plan and shall substitute 
``underwriter'' or other appropriate reference for the term ``Carrier.''

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 62 FR 47577, Sept. 10, 1997; 
70 FR 31383, June 1, 2005]

[[Page 150]]



1652.216-70  Accounting and price adjustment.

    As prescribed in section 1616.7001, the following clause shall be 
inserted in all FEHBP contracts based on a combination of cost and price 
analysis (community rated).

               Accounting and Price Adjustment (JAN 2003)

    (a) Annual Accounting Statement. The Carrier, not later than 90 days 
after the end of each contract period, shall furnish to OPM for that 
contract period an accounting of its operations under the contract. The 
accounting shall be in the form prescribed by OPM.
    (b) Adjustment. (1) This contract is community rated as defined in 
FEHBAR 1602.170-2.
    (2) Effective January 1, 2013 all community rated plans must develop 
the FEHBP's rates using their State-filed rating methodology or, if not 
required to file with the State, their standard written and established 
rating methodology. A carrier who mandated by the State to use 
traditional community rating will be subject to paragraph (b)(2)(ii) of 
this clause. All other carriers will be subject to paragraph (b)(2)(i) 
of this clause.
    (i) The subscription rates agreed to in this contract shall meet the 
FEHB-specific MLR threshold as defined in FEHBAR 1602.170-14. The ratio 
of a plan's incurred claims, including the carrier's expenditures for 
activities that improve health care quality, to total premium revenue 
shall not be lower than the FEHB-specific MLR threshold published 
annually by OPM in its rate instructions.
    (ii) The subscription rates agreed to in this contract shall be 
equivalent to the subscription rates given to the carrier's similarly 
sized subscriber group (SSSG) as defined in FEHBAR 1602.170-13. The 
subscription rates shall be determined according to the carrier's 
established policy, which must be applied consistently to the FEHBP and 
to the carrier's SSSG. If the SSSG receives a rate lower than that 
determined according to the carrier's established policy, it is 
considered a discount. The FEHBP must receive a discount equal to or 
greater than the carrier's SSSG discount.
    (3) If subject to paragraph (b)(2)(ii) of this clause, then:
    (i) If, at the time of the rate reconciliation, the subscription 
rates are found to be lower than the equivalent rates for the SSSG, the 
carrier may include an adjustment to the Federal group's rates for the 
next contract period, except as noted in paragraph (b)(3)(iii) of this 
clause.
    (ii) If, at the time of the rate reconciliation, the subscription 
rates are found to be higher than the equivalent rates for the SSSG, the 
carrier shall reimburse the Fund, for example, by reducing the FEHB 
rates for the next contract term to reflect the difference between the 
estimated rates and the rates which are derived using the methodology of 
the SSSG, except as noted in paragraph (b)(3)(iii) of this clause.
    (iii) Carriers may provide additional guaranteed discounts to the 
FEHBP that are not given to the SSSG. Any such guaranteed discounts must 
be clearly identified as guaranteed discounts. After the beginning of 
the contract year for which the rates are set, these guaranteed FEHBP 
discounts may not be adjusted.
    (4) If rates are determined by comparison with the FEHB-specific MLR 
threshold, then if the MLR for the carrier's FEHB plan is found to be 
lower than the published FEHB-specific MLR threshold, the carrier must 
pay a subsidization penalty equal to the difference into a subsidization 
penalty account.
    (5) The following apply to community rated plans, regardless of the 
rating methodology:
    (i) No upward adjustment in the rate established for this contract 
will be allowed or considered by the Government or will be made by the 
Carrier in this or in any other contract period on the basis of actual 
costs incurred, actual benefits provided, or actual size or composition 
of the FEHBP group during this contract period.
    (ii) For contract years beginning on or after January 1, 2009, in 
the event this contract is not renewed, the final rate reconciliation 
will be performed. The carrier must promptly pay any amount owed to OPM. 
Any amount recoverable by the carrier is limited to the amount in the 
contingency reserve for the terminating plan as of December 31 of the 
terminating year.
    (iii) Carriers may not impose surcharges (loadings not defined based 
on an established rating method) on the FEHBP subscription rates or use 
surcharges in the rate reconciliation process in any circumstance.
    (6) For contract years beginning on or after January 1, 2009, in the 
event this contract is not renewed, the final rate reconciliation will 
be performed. The carrier must promptly pay any amount owed to OPM. Any 
amount recoverable by the carrier is limited to the amount in the 
contingency reserve for the terminating plan as of December 31 of the 
terminating year.
    (7) Carriers may provide additional guaranteed discounts to the 
FEHBP. Any such guaranteed discounts must be clearly identified as 
guaranteed discounts. After the beginning of the contract year for which 
the rates are set, these guaranteed FEHBP discounts may not be adjusted.
    (8) Carriers may not impose surcharges (loadings not defined based 
on an established rating method) on the FEHBP subscription rates or use 
surcharges in the rate reconciliation process. If the carrier is subject 
to the SSSG rules and imposes a surcharge on the

[[Page 151]]

SSSG, the carrier cannot impose the surcharge on FEHB.

                             (End of clause)

[62 FR 47577, Sept. 10, 1997, as amended at 64 FR 36273, July 6, 1999; 
65 FR 36387, June 8, 2000; 70 FR 31383, June 1, 2005; 74 FR 7824, Feb. 
20, 2009; 76 FR 38286, June 29, 2011; 77 FR 19525, Apr. 2, 2012; 80 FR 
32861, June 10, 2015]



1652.216-71  Accounting and Allowable Cost.

    As prescribed in section 1616.7002, the following clause shall be 
inserted in all FEHBP contracts based on cost analysis (experience 
rated).

      Accounting and Allowable Cost (FEHBAR 1652.216-71) (JAN 2003)

    (a) Annual Accounting Statements. (1) The Carrier shall furnish to 
OPM an accounting of its operations under the contract. In preparing the 
accounting, the Carrier shall follow the reporting requirements and 
statement formats prescribed by OPM in the OPM Annual and Fiscal Year 
Financial Reporting Instructions.
    (2) The Carrier shall have its Annual Accounting Statements and that 
of its underwriter, if any, audited in accordance with the FEHBP 
Experienced-Rated Carrier and Service Organization Audit Guide (Guide). 
The Carrier shall submit the audit report and the Annual Accounting 
Statements to OPM in accordance with the requirements of the Guide.
    (3) Based on the results of either the independent audit prescribed 
by the Guide or a Government audit, OPM may require the Carrier adjust 
its annual accounting statements (i) by amounts found not to constitute 
actual, allowable, allocable and reasonable costs; or (ii) to reflect 
prior overpayments or underpayments.
    (4) The Carrier shall develop corrective action plans to resolve 
audit findings identified in audits that were performed in accordance 
with the Guide. The corrective action plans will be prepared in 
accordance with and as defined by the Guide.
    (b) Definition of costs. (1) The Carrier may charge a cost to the 
contract for a contract term if the cost is actual, allowable, 
allocable, and reasonable. In addition, the Carrier must:
    (i) on request, document and make available accounting support for 
the cost to justify that the cost is actual, reasonable and necessary; 
and
    (ii) determine the cost in accordance with: (A) the terms of this 
contract, and (B) subpart 31.2 of the Federal Acquisition Regulation 
(FAR) and subpart 1631.2 of the Federal Employees Health Benefits 
Program Acquisition Regulation (FEHBAR) applicable on the first day of 
the contract period.
    (2) In the absence of specific contract terms to the contrary, the 
Carrier shall classify contract costs in accordance with the following 
criteria:
    (i) Benefits. Benefit costs consist of payments made and liabilities 
incurred for covered health care services on behalf of FEHBP subscribers 
less any refunds, rebates, allowances or other credits received.
    (ii) Administrative expenses. Administrative expenses consist of all 
actual, allowable, allocable and reasonable expenses incurred in the 
adjudication of subscriber benefit claims or incurred in the Carrier's 
overall operation of the business. Unless otherwise stated in the 
contract, administrative expenses include, in part: all taxes (excluding 
premium taxes, as provided in section 1631.205-41), insurance and 
reinsurance premiums, medical and dental consultants used in the 
adjudication process, concurrent or managed care review when not billed 
by a health care provider and other forms of utilization review, the 
cost of maintaining eligibility files, legal expenses incurred in the 
litigation of benefit payments and bank charges for letters of credit. 
Administrative expenses exclude the cost of Carrier personnel, 
equipment, and facilities directly used in the delivery of health care 
services, which are benefit costs, and the expense of managing the FEHBP 
investment program which is a reduction of investment income earned.
    (iii) Investment income. While compliance with the checks presented 
letter of credit methodology will minimize funds on hand, the Carrier 
shall invest and reinvest all funds on hand, including any in the 
Special Reserve or any attributable to the reserve for incurred but 
unpaid claims, which are in excess of the funds needed to discharge 
promptly the obligations incurred under the contract. Investment income 
represents the net amount earned by the Carrier after deducting 
investment expenses. Investment expenses are those actual, allowable, 
allocable, and reasonable contract costs that are attributable to the 
investment of funds, such as consultant or management fees.
    (iv) Other charges. (A) Mandatory statutory reserve. Charges for 
mandatory statutory reserves are not allowable unless specifically 
provided for in the contract. When the term ``mandatory statutory 
reserve'' is specifically identified as an allowable contract charge 
without further definition or explanation, it means a requirement 
imposed by State law upon the Carrier to set aside a specific amount or 
rate of funds into a restricted reserve that is accounted for separately 
from all other reserves and surpluses of the Carrier and which may be 
used only with the specific approval of the State official designated by 
law to make such approvals. The amount chargeable to the contract

[[Page 152]]

may not exceed an allocable portion of the amount actually set aside. If 
the statutory reserve is no longer required for the purpose for which it 
was created, and these funds become available for the general use of the 
Carrier, the Carrier shall return to the FEHBP a pro rata share based 
upon FEHBP's contribution to the total Carrier's set aside shall be 
returned to the FEHBP in accordance with FAR 31.201-5.
    (B) Premium taxes. (1) When the term ``premium taxes'' is used in 
this contract without further definition or explanation, it means a tax, 
fee, or other monetary payment directly or indirectly imposed on FEHB 
premiums by any State, the District of Columbia, or the Commonwealth of 
Puerto Rico or by any political subdivision or other governmental 
authority of those entities, with the sole exception of a tax on net 
income or profit, if that tax, fee, or payment is applicable to a broad 
range of business activity.
    (2) For purposes of this paragraph (B), OPM has determined that the 
term ``State'' as used in 5 U.S.C. 8909(f) includes, but is not limited 
to, a territory or possession of the United States.
    (c) Certification of Accounting Statement Accuracy. (1) The Carrier 
shall certify the annual and fiscal year accounting statements in the 
form set forth in paragraph (c)(3) of this clause. The Carrier's chief 
executive officer and the chief financial officer shall sign the 
certificate.
    (2) The Carrier shall require an authorized agent of its 
underwriter, if any, also to certify the annual accounting statement.
    (3) The certificate required shall be in the following form:

             Certification of Accounting Statement Accuracy

    This is to certify that I have reviewed this accounting statement 
and to the best of my knowledge and belief:
    1. The statement was prepared in conformity with the guidelines 
issued by the Office of Personnel Management and fairly presents the 
financial results of this reporting period in conformity with those 
guidelines.
    2. The costs included in the statement are actual, allowable, 
allocable, and reasonable in accordance with the terms of the contract 
and with the cost principles of the Federal Employees Health Benefits 
Acquisition Regulation and the Federal Acquisition Regulation;
    3. Income, rebates, allowances, refunds and other credits made or 
owed in accordance with the terms of the contract and applicable cost 
principles have been included in the statement;
    4. If applicable, the letter of credit account was managed in 
accordance with 5 CFR part 890, 48 CFR chapter 16, and OPM guidelines.

Carrier Name:___________________________________________________________

Name of Chief Executive Officer:
(Type or Print)
________________________________________________________________________

Name of Chief Financial Officer:
________________________________________________________________________

Signature of Chief Executive Officer:
________________________________________________________________________

Signature of Chief Financial Officer:
________________________________________________________________________

Date Signed:____________________________________________________________

Date Signed:____________________________________________________________

Underwriter:____________________________________________________________

Name and Title of Responsible Corporate Official:
(Type or Print:)
________________________________________________________________________

Signature of Responsible Corporate Official:
________________________________________________________________________

Date Signed:____________________________________________________________

                          (End of certificate)

                             (End of clause)

[55 FR 27416, July 2, 1990, as amended at 56 FR 57497, Nov. 12, 1991; 57 
FR 14360, Apr. 20, 1992; 62 FR 47577, Sept. 10, 1997; 64 FR 36273, July 
6, 1999; 65 FR 36387, June 8, 2000; 70 FR 31383, June 1, 2005]



1652.222-70  Notice of significant events.

    As prescribed in 1622.103-70, the following clause shall be inserted 
in all FEHBP contracts.

                 Notice of Significant Events (JUL 2005)

    (a) The Carrier agrees to notify OPM of any Significant Event within 
ten (10) working days after the Carrier becomes aware of it. As used in 
this section, a Significant Event is any occurrence or anticipated 
occurrence that might reasonably be expected to have a material effect 
upon the Carrier's ability to meet its obligations under this contract, 
including, but not limited to, any of the following:
    (1) Disposal of major assets;
    (2) Loss of 15% or more of the Carrier's overall membership;
    (3) Termination or modification of any contract or subcontract if 
such termination or modification might have a material effect on the 
Carrier's obligations under this contract;
    (4) Addition or termination of provider agreements;
    (5) Any changes in underwriters, reinsurers, or participating plans;
    (6) The imposition of, or notice of the intent to impose, a 
receivership, conservatorship, or special regulatory monitoring;

[[Page 153]]

    (7) The withdrawal of, or notice of intent to withdraw, State 
licensing, HHS qualification, or any other status under Federal or State 
law;
    (8) Default on a loan or other financial obligation;
    (9) Any actual or potential labor dispute that delays or threatens 
to delay timely performance or substantially impairs the functioning of 
the Carrier's facilities or facilities used by the Carrier in the 
performance of the contract;
    (10) Any change in its charter, constitution, or by-laws which 
affects any provision of this contract or the Carrier's participation in 
the Federal Employees Health Benefits Program; or
    (11) Any significant changes in policies and procedures or 
interpretations of the contract or brochure which would affect the 
benefits available under the contract or the costs charged to the 
contract.
    (12) Any fraud, embezzlement or misappropriation of FEHB funds; or
    (13) Any written exceptions, reservations or qualifications 
expressed by the independent accounting firm (which ascribes to the 
standards of the American Institute of Certified Public Accountants) 
contracted with by the Carrier to provide an opinion on its annual 
financial statements.
    (b) Upon learning of a Significant Event OPM may institute action, 
in proportion to the seriousness of the event, to protect the interest 
of Members, including, but not limited to--
    (1) Directing the Carrier to take corrective action;
    (2) Suspending new enrollments under this contract;
    (3) Advising Enrollees of the Significant Event and providing them 
an opportunity to transfer to another plan;
    (4) Withholding payment of subscription income or restricting access 
to the Carrier's Letter of Credit account.
    (5) Terminating the enrollment of those enrollees who, in the 
judgment of OPM, would be adversely affected by the Significant Event; 
or
    (6) Terminating this contract pursuant to section 1.15, renewal and 
withdrawal of approval.
    (c) Prior to taking action as described in paragraph (b) of this 
clause, the OPM will notify the Carrier and offer an opportunity to 
respond.
    (d) The carrier will insert this clause in any subcontract or 
subcontract modification if the amount of the subcontract or 
modification charged to the FEHB Program (or in the case of a community-
rated carrier, applicable to the FEHB Program) equals or exceeds 
$550,000 and is at least 25 percent of the total subcontract cost. The 
amount of the dollar charge to the FEHB Program shall be adjusted by the 
same amount and at the same time as any change to the threshold for 
application of the Truth in Negotiations Act pursuant to 41 U.S.C. 
254b(a)(7).

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990; 70 
FR 31383, June 1, 2005; 71 FR 3016, Jan. 19, 2006]



1652.224-70  Confidentiality of records.

    As prescribed in 1624.104, the following clause shall be inserted in 
all FEHBP contracts:

                  Confidentiality of Records (JAN 1991)

    (a) The Carrier shall use the personal data on employees and 
annuitants that is provided by agencies and OPM, including social 
security numbers, for only those routine uses stipulated for the data 
and published annually in the Federal Register as a part of OPM's notice 
of systems of records.
    (b) The Carrier shall also hold all medical records, and information 
relating thereto, of Federal subscribers and family members confidential 
except as follows:
    (1) As may be reasonably necessary for the administration of this 
contract;
    (2) As authorized by the patient or his or her guardian;
    (3) As disclosure is necessary to permit Government officials having 
authority to investigate and prosecute alleged civil or criminal 
actions;
    (4) As necessary to audit the contract;
    (5) As necessary to carry out the coordination of benefits 
provisions of this contract; and
    (6) For bona fide medical research or educational purposes. Release 
of information for medical research or educational purposes shall be 
limited to aggregated information of a statistical nature that does not 
identify any individual by name, social security number, or any other 
identifier unique to an individual.
    (c) If the carrier uses medical records for the administration of 
the contract, or for bona fide medical research or educational purposes, 
it shall so state in the plan's brochure.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27417, July 2, 1990]



1652.229-70  Taxes--Foreign Negotiated benefits contracts.

    As prescribed in section 1629.402, the following clause shall be 
inserted in all FEHBP contracts performed outside

[[Page 154]]

the United States, its possessions, and Puerto Rico:

         Taxes--Foreign Negotiated Benefits Contracts (JAN 1998)

    (a) To the extent that this contract provides for performing 
services outside the United States, its possessions, and Puerto Rico, 
this clause applies in lieu of any Federal, State, and local taxes 
clause of the contract.
    (b) ``Contract date,'' as used in this clause, means the effective 
date of this contract or modification.
    ``Country concerned,'' as used in this clause, means any country, 
other than the United States, its possessions, and Puerto Rico, in which 
expenditures under this contract are made.
    ``Tax'' and ``taxes,'' as used in this clause, include fees and 
charges for doing business that are levied by the government of the 
country concerned or by its political subdivisions.
    ``All applicable taxes and duties,'' as used in this clause, means 
all taxes and duties, in effect on the contract date, that the taxing 
authority is imposing and collecting on the transactions covered by this 
contract, pursuant to written ruling or regulation in effect on the 
contract date.
    ``After-imposed tax,'' as used in this clause, means any new or 
increased tax or duty, or tax that was exempted or excluded on the 
contract date but whose exemption was later revoked or reduced during 
the contract period, other than excepted tax, on the transactions 
covered by this contract that the Carrier is required to pay or bear as 
the result of legislative, judicial, or administrative action taking 
effect after the contract date.
    ``After-relieved tax,'' as used in this clause, means any amount of 
tax or duty, other than an excepted tax, that would otherwise have been 
payable on the transactions covered by this contract, but which the 
Carrier is not required to pay or bear, or for which the Carrier obtains 
a refund, as the result of legislative, judicial, or administrative 
action taking effect after the contract date.
    ``Excepted tax,'' as used in this clause, means social security or 
other employment taxes, net income and franchise taxes, excess profits 
taxes, capital stock taxes, transportation taxes, unemployment 
compensation taxes, and property taxes. ``Excepted tax'' does not 
include gross income taxes levied on or measured by sales or receipts 
from sales covered by this contract, or any tax assessed on the 
Carrier's possession of, interest in, or use of property, title to which 
is in the U.S. Government.
    (c) Unless otherwise provided in this contract, the contract price 
includes all applicable taxes and duties, except taxes and duties that 
the Government of the United States and the government of the country 
concerned have agreed shall not be applicable to expenditures in such 
country by or on behalf of the United States.
    (d) The contract price shall be increased by the amount of any 
after-imposed tax or of any tax or duty specifically excluded from the 
contract price by a provision of this contract that the Carrier is 
required to pay or bear, including any interest or penalty, if the 
Carrier states in writing that the contract price does not include any 
contingency for such tax and if liability for such tax, interest, or 
penalty was not incurred through the Carrier's fault, negligence, or 
failure to follow instructions of the Contracting Officer or to comply 
with the provisions of paragraph (i) below.
    (e) The contract price shall be decreased by the amount of any 
after-relieved tax, including any interest or penalty. The Government of 
the United States shall be entitled to interest received by the Carrier 
incident to a refund of taxes to the extent that such interest was 
earned after the Carrier was paid by the Government of the United States 
for such taxes. The Government of the United States shall be entitled to 
repayment of any penalty refunded to the Carrier to the extent that the 
penalty was paid by the Government.
    (f) The contract price shall be decreased by the amount of any tax 
or duty, other than an excepted tax, that was included in the contract 
and that the Carrier is required to pay or bear, or does not obtain a 
refund of, through the Carrier's fault, negligence, or failure to follow 
instructions of the Contracting Officer or to comply with the provisions 
of paragraph (i) below.
    (g) No adjustment shall be made in the contract price under this 
clause unless the amount of the adjustment exceeds $250.
    (h) If the Carrier obtains a reduction in tax liability under the 
United States Internal Revenue Code (Title 26, U.S. Code) because of the 
payment of any tax or duty that either was included in the contract 
price or was the basis of an increase in the contract price, the amount 
of the reduction shall be paid or credited to the Government of the 
United States as the Contracting Officer directs.
    (i) The Carrier shall take all reasonable action to obtain exemption 
from or refund of any taxes or duties, including interest or penalty, 
from which the United States Government, the Carrier, any subcontractor, 
or the transactions covered by this contract are exempt under the laws 
of the country concerned or its political subdivisions or which the 
governments of the United States and of the country concerned have 
agreed shall not be applicable to expenditures in such country by or on 
behalf of the United States.
    (j) The Carrier shall promptly notify the Contracting Officer of all 
matters relating to

[[Page 155]]

taxes or duties that reasonably may be expected to result in either an 
increase or decrease in the contract price and shall take appropriate 
action as the Contracting Officer directs. The contract price shall be 
equitably adjusted to cover the costs of action taken by the Carrier at 
the direction of the Contracting Officer, including any interest, 
penalty, and reasonable attorneys' fees.

                             (End of clause)

[62 FR 47577, Sept. 10, 1997]



1652.232-70  Payments--community-rated contracts.

    As prescribed in 1632.171, the following clause shall be inserted in 
all community-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM, amounts for obligations due pursuant to paragraph (b) 
of this clause and the performance adjustment described at 1615.404-4, 
plus any payments made by OPM from the Contingency Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be due and payable not 
later than thirty days after receipt by the Fund. The Contracting 
Officer may authorize special non-recurring payments from the 
Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent that 
the reserves held by the Carrier are insufficient for that purpose.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14360, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 36388, 
June 8, 2000; 80 FR 37180, June 30, 2015]



1652.232-71  Payments--experience-rated contracts.

    As prescribed in 1632.172, the following clause shall be inserted in 
all experience-rated FEHBP contracts:

                           Payments (JAN 2000)

    (a) OPM will pay to the Carrier, in full settlement of its 
obligations under this contract, subject to adjustment for error or 
fraud, the subscription charges received for the Plan by the Employees 
Health Benefits Fund (hereinafter called the Fund) less the amounts set 
aside by OPM for the Contingency Reserve and for the administrative 
expenses of OPM and amounts for obligations due pursuant to paragraph 
(b) of this clause, plus any payments made by OPM from the Contingency 
Reserve.
    (b) OPM will notify the Carrier of amounts due for outstanding 
obligations under the contract. Not later than 60 days after the date of 
written notice from OPM, the Carrier shall reimburse OPM. If payment is 
not received within the prescribed time frame, OPM shall withhold the 
amount due from the subscription charges owed the Carrier under 
paragraph (a) of this clause.
    (c) The specific subscription rates, charges, allowances and 
limitations applicable to the contract are set forth in Appendix B.
    (d) Recurring payments from premiums shall be made available for 
carrier drawdown not later than thirty days after receipt by the Fund. 
The Contracting Officer may authorize special non-recurring payments 
from the Contingency Reserve in accordance with OPM's regulations.
    (e) In the event this contract between the Carrier and OPM is 
terminated or not renewed in accordance with General Provision 1.15, 
RENEWAL and WITHDRAWAL OF APPROVAL, the Contingency Reserve of the 
Carrier held by OPM shall be available to the Carrier to pay the 
necessary and proper charges against this contract to the extent that 
the Carrier reserves are insufficient for that purpose.

                             (End of clause)

[53 FR 51784, Dec. 23, 1988, as amended at 57 FR 14361, Apr. 20, 1992; 
62 FR 47578, Sept. 10, 1997; 63 FR 55339, Oct. 15, 1998; 64 FR 36274, 
July 6, 1999; 65 FR 36388, June 8, 2000; 80 FR 37180, June 30, 2015]

[[Page 156]]



1652.232-72  Non-commingling of FEHBP funds.

    As prescribed in 1632.772, the following clause shall be inserted in 
all contracts based on cost analysis.

                   Non-Commingling of Funds (JAN 1991)

    (a) The Carrier and/or its underwriter shall keep all FEHBP funds 
for this contract (cash and investments) physically separate from funds 
obtained from other sources. Accounting for such FEHBP funds shall not 
be based on allocations or other sharing mechanisms and shall agree with 
the Carrier's accounting records.
    (b) In certain instances the physical separation of FEHBP funds may 
not be practical or desirable. In such cases, the Carrier may request a 
waiver from this requirement from the Contracting Officer. The waiver 
shall be requested in advance and the Carrier shall demonstrate that 
accounting techniques have been established that will clearly measure 
FEHBP cash and investment income (i.e., subsidiary ledgers). 
Reconciliations between amounts reported and actual amounts shown in 
accounting records shall be provided as supporting schedules to the 
Annual Accounting Statements.
    (c) The Carrier shall incorporate this clause in all subcontracts 
that exceed $25,000 and shall substitute ``contractor'' or other 
appropriate reference for ``Carrier and/or its underwriter.''

                             (End of clause)

[52 FR 16044, May 1, 1987. Redesignated at 53 FR 51784, Dec. 23, 1988, 
and amended at 55 FR 27418, July 2, 1990]



1652.232-73  Approval for the Assignment of Claims.

    As prescribed in 1632.806-70, the following clause shall be inserted 
in all FEHBP contracts:

              Approval for Assignment of Claims (JAN 1991)

    (a) Notwithstanding the provisions of section 5.35, (FAR 52.232-23) 
Assignment of Claims, the Carrier shall not make any assignment under 
the Assignment of Claims Act without the prior written approval of the 
Contracting Officer.
    (b) Unless a different period is specified in the Contracting 
Officer's written approval, an assignment shall be in force only for a 
period f 1 year from the date of the Contracting Officer's approval. 
However, assignments may be renewed upon their expiration.

                             (End of clause)

[55 FR 27418, July 2, 1990]



1652.243-70  Changes--Negotiated benefits contracts.

    As prescribed in section 1643.205-70, the following clause shall be 
inserted in all FEHBP contracts.

            Changes--Negotiated Benefits Contracts (JAN 1998)

    (a) The Contracting Officer may at any time, by written order, and 
without notice to the sureties, if any, make changes within the general 
scope of this contract in any one or more of the following:
    (1) Description of services to be performed.
    (2) Time of performance (i.e., hours of the day, days of the week, 
etc.).
    (3) Place of performance of the services.
    (b) If any such change causes an increase or decrease in the cost 
of, or the time required for, performance of any part of the work under 
this contract, whether or not changed by the order, the Contracting 
Officer shall make an equitable adjustment in the contract price, the 
delivery schedule, or both, and shall modify the contract.
    (c) The Carrier must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the written order. 
However, if the Contracting Officer decides that the facts justify it, 
the Contracting Officer may receive and act upon a proposal submitted 
before final payment of the contract.
    (d) Failure to agree to any adjustment shall be a dispute under the 
Disputes clause. However, nothing in this clause shall excuse the 
Carrier from proceeding with the contract as changed.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



1652.244-70  Subcontracts.

    As prescribed in section 1644.270, the following clause will be 
inserted in all FEHB Program contracts based on cost analysis 
(experience-rated):

                         Subcontracts (JUL 2005)

    (a) The carrier will notify the Contracting officer in writing at 
least 30 days in advance of entering into any subcontract or subcontract 
modification, or as otherwise specified by this contract, if the amount 
of the subcontract or modification charged to the FEHB Program equals or 
exceeds $550,000 and is at least 25 percent of the total subcontract 
cost. The amount of the dollar charge to the FEHB Program shall be 
adjusted by the

[[Page 157]]

same amount and at the same time as any change to the threshold for 
application of the Truth in Negotiations Act pursuant to 41 U.S.C. 
254b(a)(7). Failure to provide advance notice may result in a 
Contracting officer's disallowance of subcontract costs or a penalty in 
the performance aspect of the carrier's service charge. In determining 
whether the amount chargeable to the FEHB Program contract for a given 
subcontract or modification equals or exceeds the $550,000 threshold, 
the following rules apply:
    (1) For initial advance notification, the carrier shall add the 
total cost/price for the base year and all options, including quantity 
or service options and option periods.
    (2) For contract modifications, options and/or renewals (e.g. 
evergreen contracts) not accounted for in paragraph (a)(1) of this 
clause, the carrier shall provide advance notification if they cause the 
total price to equal or exceed the threshold. OPM's review will be of 
the modification(s), itself, but documentation for the original 
subcontract will be required to perform the review. The $550,000 
threshold will be adjusted by the same amount and at the same time as 
any change to the threshold for application of the Truth in Negotiations 
Act. All subcontracts or subcontract modifications that equal or exceed 
the threshold are subject to audit under FAR 52.215-2 ``Audit and 
Records--Negotiations'' if based on cost analysis or 48 CFR 1646.301 and 
1552.246-70 ``FEHB Inspection'' if based on price analysis.
    (b) The advance notification required by paragraph (a) of this 
clause will include the information specified below:
    (1) A description of the supplies or services to be subcontracted;
    (2) Identification of the type of subcontract to be used;
    (3) Identification of the proposed subcontractor and an explanation 
of why and how the proposed subcontractor was selected, including the 
competition obtained;
    (4) The proposed subcontract price and the carrier's cost or price 
analysis;
    (5) The subcontractor's current, complete, and accurate cost or 
pricing data and a Certificate of Current Cost or Pricing Data must be 
submitted to the Contracting officer if required by law, regulation, or 
other contract provisions.
    (6) [Reserved]
    (7) A negotiation memorandum reflecting--
    (i) The principal elements of the subcontract price negotiations;
    (ii) The most significant consideration controlling establishment of 
initial or revised prices;
    (iii) An explanation of the reason cost or pricing data are not 
required, if the carrier believes that cost or pricing data are not 
required.
    (iv) The extent, if any, to which the carrier did not rely on the 
subcontractor's cost or pricing data in determining the price objective 
and in negotiating the final price;
    (v) The extent, if any, to which it was recognized in the 
negotiation that the subcontractor's cost or pricing data were not 
accurate, complete, or current; the action taken by the carrier and the 
subcontractor; and the effect of any such defective data on the total 
price negotiated;
    (vi) The reasons for any significant difference between the 
carrier's price objective and the price negotiated; and
    (vii) A complete explanation of the incentive fee or profit plan, 
when incentives are used. The explanation will identify each critical 
performance element, management decisions used to quantify each 
incentive element, reasons for the incentives, and a summary of all 
trade-off possibilities considered.
    (c) The carrier will obtain the Contracting officer's written 
consent before placing any subcontract for which advance notification is 
required under paragraph (a) of this clause. However, the Contracting 
officer may ratify in writing any such subcontract for which written 
consent was not obtained. Ratification will constitute the consent of 
the Contracting officer.
    (d) The Contracting officer may waive the requirement for advance 
notification and consent required by paragraphs (a), (b) and (c) of this 
clause where the carrier and subcontractor submit an application or 
renewal as a contractor team arrangement as defined in FAR subpart 9.6 
and--
    (1) The Contracting officer evaluated the arrangement during 
negotiation of the contract or contract renewal; and
    (2) The subcontractor's price and/or costs were included in the 
Plan's rates that were reviewed and approved by the Contracting officer 
during negotiation of the contract or contract renewal.
    (e) If the carrier follows the notification and consent requirements 
of paragraphs (a), (b) and (c) of this clause and subsequently obtains 
the Contracting officer's consent or ratification, then the 
reasonableness of the subcontract's costs will be inferred as provided 
for in 1631.205-81. However, consent or ratification by the Contracting 
officer will not constitute a determination:
    (1) Of the acceptability of any subcontract terms or conditions;
    (2) Of the allowability of any cost under this contract; or
    (3) That the carrier should be relieved of any responsibility for 
performing this contract.
    (f) No subcontract placed under this contract will provide for 
payment on a cost-plus-a-percentage-of-cost basis. Any fee payable under 
cost reimbursement type subcontracts will not exceed the fee limitations

[[Page 158]]

in FAR 15.404-4(c)(4)(i). Any profit or fee payable under a subcontract 
will be in accordance with the provision of Section 3.7, Service Charge.
    (g) The carrier will give the Contracting officer immediate written 
notice of any action or suit filed and prompt notice of any claim made 
against the carrier by any subcontractor or vendor that, in the opinion 
of the carrier, may result in litigation related in any way to this 
contract with respect to which the carrier may be entitled to 
reimbursement from the Government.

                             (End of clause)

[70 FR 31383, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



1652.245-70  Government property (negotiated benefits contracts).

    As prescribed in section 1645.303-70, the following clause shall be 
inserted in all FEHBP contracts.

     Government Property (Negotiated Benefits Contracts) (JAN 1998)

    (a) Government-furnished property. (1) The Government shall deliver 
to the Carrier, for use in connection with and under the terms of this 
contract, the Government-furnished property described in this contract 
together with any related data and information that the Carrier may 
request and is reasonably required for the intended use of the property 
(hereinafter referred to as ``Government-furnished property'').
    (2) The delivery or performance dates for this contract are based 
upon the expectation that Government-furnished property suitable for use 
(except for property furnished ``as-is'') will be delivered to the 
Carrier at the times stated in this contract or, if not so stated, in 
sufficient time to enable the Carrier to meet the contract's performance 
dates.
    (3) If Government-furnished property is received by the Carrier in a 
condition not suitable for the intended use, the Carrier shall, upon 
receipt of it, notify the Contracting Officer, detailing the facts, and, 
as directed by the Contracting Officer and at Government expense, either 
repair, modify, return, or otherwise dispose of the property. After 
completing the directed action and upon written request of the Carrier, 
the Contracting Officer shall make an equitable adjustment as provided 
in paragraph (h) of this clause.
    (b) Changes in Government-furnished property. (1) The Contracting 
Officer may, by written notice, (i) decrease the Government-furnished 
property provided or to be provided under this contract, or (ii) 
substitute other Government-furnished property for the property to be 
provided by the Government, or to be acquired by the Carrier for the 
Government, under this contract. The Carrier shall promptly take such 
action as the Contracting Officer may direct regarding the removal, 
shipment, or disposal of the property covered by such notice.
    (2) Upon the Carrier's written request, the Contracting Officer 
shall make an equitable adjustment to the contract in accordance with 
paragraph (h) of this clause, if the Government has agreed in this 
contract to make the property available for performing this contract and 
there is any--
    (i) Decrease or substitution in this property pursuant to 
subparagraph (b)(1) above; or
    (ii) Withdrawal of authority to use this property, if provided under 
any other contract or lease.
    (c) Title in Government property. (1) The Government shall retain 
title to all Government-furnished property.
    (2) All Government-furnished property and all property acquired by 
the Carrier, title to which vests in the Government under this paragraph 
(collectively referred to as ``Government property''), are subject to 
the provisions of this clause. Title to Government property shall not be 
affected by its incorporation into or attachment to any property not 
owned by the Government, nor shall Government property become a fixture 
or lose its identity as personal property by being attached to any real 
property.
    (d) Use of Government property. The Government property shall be 
used only for performing this contract, unless otherwise provided in 
this contract or approved by the Contracting Officer.
    (e) Property administration. (1) The Carrier shall be responsible 
and accountable for all Government property provided under this contract 
and shall comply with Federal Acquisition Regulation (FAR) subpart 45.5, 
as in effect on the date of this contract.
    (2) The Carrier shall establish and maintain a program for the use, 
maintenance, repair, protection, and preservation of Government property 
in accordance with sound industrial practice and the applicable 
provisions of subpart 45.5 of the FAR.
    (3) If damage occurs to Government property, the risk of which has 
been assumed by the Government under this contract, the Government shall 
replace the items or the Carrier shall make such repairs as the 
Government directs. However, if the Carrier cannot effect such repairs 
within the time required, the Carrier shall dispose of the property as 
directed by the Contracting Officer. When any property for which the 
Government is responsible is replaced or repaired, the Contracting 
Officer shall make an equitable adjustment in accordance with paragraph 
(h) of this clause.
    (4) The Carrier represents that the contract price does not include 
any amount for

[[Page 159]]

repairs or replacement for which the Government is responsible. Repair 
or replacement of property for which the Carrier is responsible shall be 
accomplished by the Carrier at its own expense.
    (f) Access. The Government and all its designees shall have access 
at all reasonable times to the premises in which any Government property 
is located for the purpose of inspecting the Government property.
    (g) Risk of loss. Unless otherwise provided in this contract, the 
Carrier assumes the risk of, and shall be responsible for, any loss or 
destruction of, or damage to, Government property upon its delivery to 
the Carrier. However, the Carrier is not responsible for reasonable wear 
and tear to Government property or for Government property properly 
consumed in performing this contract.
    (h) Equitable adjustment. When this clause specifies an equitable 
adjustment, it shall be made to any affected contract provision in 
accordance with the procedures of the Changes clause. When appropriate, 
the Contracting Officer may initiate an equitable adjustment in favor of 
the Government. The right to an equitable adjustment shall be the 
Carrier's exclusive remedy. The Government shall not be liable to suit 
for breach of contract for--
    (1) Any delay in delivery of Government-furnished property;
    (2) Delivery of Government-furnished property in a condition not 
suitable for its intended use;
    (3) A decrease in or substitution of Government-furnished property; 
or
    (4) Failure to repair or replace Government property for which the 
Government is responsible.
    (i) Final accounting and disposition of Government property. Upon 
completing this contract, or at such earlier dates as may be fixed by 
the Contracting Officer, the Carrier shall submit, in a form acceptable 
to the Contracting Officer, inventory schedules covering all items of 
Government property (including any resulting scrap) not consumed in 
performing this contract or delivered to the Government. The Carrier 
shall prepare for shipment, deliver f.o.b. origin, or dispose of the 
Government property as may be directed or authorized by the Contracting 
Officer. The net proceeds of any such disposal shall be credited to the 
contract price or shall be paid to the Government as the Contracting 
Officer directs.
    (j) Abandonment and restoration of Carrier's premises. Unless 
otherwise provided herein, the Government--
    (1) May abandon any Government property in place, at which time all 
obligations of the Government regarding such abandoned property shall 
cease; and
    (2) Has no obligation to restore or rehabilitate the Carrier's 
premises under any circumstances (e.g., abandonment, disposition upon 
completion of need, or upon contract completion). However, if the 
Government-furnished property is withdrawn or is unsuitable for the 
intended use, or if other Government property is substituted, then the 
equitable adjustment under paragraph (h) of this clause may properly 
include restoration or rehabilitation costs.
    (k) Communications. All communications under this clause shall be in 
writing.
    (l) Overseas contracts. If this contract is to be performed outside 
of the United States of America, its territories, or possessions, the 
words ``Government'' and ``Government-furnished'' (wherever they appear 
in this clause) shall be construed as ``United States Government'' and 
``United States Government-furnished'', respectively.

                             (End of clause)

[62 FR 47578, Sept. 10, 1997]



1652.246-70  FEHB Inspection.

    As prescribed in 1646.301, the following clause will be inserted in 
all FEHB contracts:

                       FEHB Inspection (JUL 2005)

    (a) The Contracting officer, or an authorized representative of the 
Contracting officer, has the right to inspect or evaluate the work 
performed or being performed under the contract, and the premises where 
the work is being performed, at all reasonable times and in a manner 
that will not unreasonably delay the work.
    (b) The Contractor shall maintain and the Contracting officer, or an 
authorized representative of the Contracting officer, shall have the 
right to examine and audit all books and records relating to the 
contract for purposes of the Contracting officer's determination of the 
carrier's subcontractor or Large Provider's compliance with the terms of 
the contract, including its payment (including rebate and other 
financial arrangements) and performance provisions. The Contractor shall 
make available at its office at all reasonable times those books and 
records for examination and audit for the record retention period 
specified in the Federal Employees Health Benefits Acquisition 
Regulation (FEHBAR), 48 CFR 1652.204-70. This subsection is applicable 
to subcontract and Large Provider Agreements with the exception of those 
that are subject to the ``Audits and Records--Negotiation'' clause, 48 
CFR 52.215-2.
    (c) If the Contracting officer, or an authorized representative of 
the Contracting officer, performs inspection, audit or evaluation on the 
premises of the carrier, the subcontractor, or the Large Provider, the 
carrier shall furnish or require the subcontractor or

[[Page 160]]

Large Provider to furnish all reasonable facilities for the same and 
convenient performance of these duties.
    (d) The carrier shall insert this clause, including this subsection 
(d), in all subcontracts for underwriting and claim payments and 
administrative services and in all Large Provider Agreements and shall 
substitute ``contractor'' ``Large Provider,'' or other appropriate 
reference for the term ``carrier.''

                             (End of clause)

[70 FR 31384, June 1, 2005, as amended at 71 FR 3016, Jan. 19, 2006]



1652.249-70  Renewal and withdrawal of approval.

    As prescribed in 1649.101-70, the following clause shall be inserted 
in all FEHBP contracts:

              Renewal and Withdrawal of Approval (JAN 1991)

    (a) Pursuant to 5 U.S.C. 8902(a), the contract renews automatically 
for a term of 1 year each January 1st, unless written notice of intent 
not to renew is given either by OPM or the Carrier not less than 60 
calendar days before the renewal date, or unless modified by mutual 
agreement.
    (b) This contract also may be terminated at other times by order of 
OPM pursuant to 5 U.S.C. 8902(e). After OPM notifies the Carrier of its 
intent to terminate the contract, OPM may take action as it deems 
necessary to protect the interests of members, including but not limited 
to--
    (1) Suspending new enrollments under the contract;
    (2) Advising enrollees of the asserted deficiencies; and
    (3) Providing enrollees an opportunity to transfer to another Plan.
    (c) OPM may, after proper notice, terminate the contract at the end 
of the contract term if it finds that the Carrier did not have at least 
300 enrollees enrolled in its plan at any time during the two preceding 
contract terms.

                             (End of clause)

[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 57 
FR 19388, May 6, 1992]



1652.249-71  FEHBP termination for convenience of the government
--negotiated benefits contracts.

    As prescribed in section 1649.101-71, the following clause shall be 
inserted in all FEHBP contracts.

FEHBP Termination for Convenience of the Government--Negotiated Benefits 
                          Contracts (JAN 1998)

    (a) The Government may terminate performance of work under this 
contract in whole or, from time to time, in part if the Contracting 
Officer determines that a termination is in the Government's interest. 
The Contracting Officer shall terminate by delivering to the Carrier a 
Notice of Termination specifying the extent of terminating and the 
effective date.
    (b) After receipt of a Notice of Termination, and except as directed 
by the Contracting Officer, the Carrier shall immediately proceed with 
the following obligations, regardless of any delay in determining or 
adjusting any amounts due under this clause:
    (1) Stop work as specified in the notice.
    (2) Place no further subcontracts except as necessary to complete 
the continued portion of the contract.
    (3) Terminate all subcontracts to the extent they relate to the work 
terminated.
    (4) Assign to the Government, as directed by the Contracting 
Officer, all right, title, and interest of the Carrier under the 
subcontracts terminated, in which case the Government shall have the 
right to settle or to pay any termination settlement proposal arising 
out of those terminations.
    (5) With approval or ratification to the extent required by the 
Contracting Officer, settle all outstanding liabilities and termination 
settlement proposals arising from the termination of subcontracts; the 
approval or ratification will be final for purposes of this clause.
    (6) As directed by the Contracting Officer, deliver to the 
Government any data, reports, or studies that, if the contract had been 
completed, would be required to be furnished to the Government.
    (7) Complete performance of the work not terminated.
    (c) After termination, the Carrier shall submit a final termination 
settlement proposal to the Contracting Officer in the form and with the 
certification prescribed by the Contracting Officer. The Carrier shall 
submit the proposal promptly, but no later than 1 year from the 
effective date of termination, unless extended in writing by the 
Contracting Officer upon written request of the Carrier within this 1-
year period. However, if the Contracting Officer determines that the 
facts justify it, a termination settlement proposal may be received and 
acted on after 1 year or any extension. If the Carrier fails to submit 
the proposal within the time allowed, the Contracting Officer may 
determine, on the basis of information available, the amount, if any, 
due the Carrier because of the termination and shall pay the amount 
determined.

[[Page 161]]

    (d) Subject to paragraph (c) of this clause, the Carrier and the 
Contracting Officer may agree upon the whole or any part of the amount 
to be paid or remaining to be paid because of the termination. The 
amount may include a reasonable allowance for profit on work done. 
However, the agreed amount, whether under this paragraph (d) or 
paragraph (e) of this clause, exclusive of costs shown in subparagraph 
(e)(3) of this clause, may not exceed the total contract price as 
reduced by (1) the amount of payments previously made and (2) the 
contract price of work not terminated. The contract shall be modified, 
and the Carrier paid the agreed amount. Paragraph (e) of this clause 
shall not limit, restrict, or affect the amount that may be agreed upon 
to be paid under this paragraph.
    (e) If the Carrier and the Contracting Officer fail to agree on the 
whole amount to be paid because of the termination of work, the 
Contracting Officer shall pay the Carrier the amounts determined by the 
Contracting Officer as follows, but without duplication of any amounts 
agreed on under paragraph (d) above:
    (1) The contract price for completed services accepted by the 
Government not previously paid for.
    (2) The total of--
    (i) The costs incurred in the performance of the work terminated, 
including initial costs and preparatory expense allocable thereto, but 
excluding any costs attributable to services paid or to be paid under 
paragraph (e)(1) of this clause;
    (ii) The cost of settling and paying termination settlement 
proposals under terminated subcontracts that are properly chargeable to 
the terminated portion of the contract if not included in subdivision 
(e)(2)(i) of this clause; and
    (iii) A sum, as profit on subdivision (e)(2)(i) of this clause, 
determined by the Contracting Officer under 49.202 of the Federal 
Acquisition Regulation, in effect on the date of this contract, to be 
fair and reasonable.
    (3) The reasonable costs of settlement of the work terminated, 
including--
    (i) Accounting, legal, clerical, and other expenses reasonably 
necessary for the preparation of termination settlement proposals and 
supporting data;
    (ii) The termination and settlement of subcontracts (excluding the 
amounts of such settlements); and
    (f) The cost principles and procedures of part 31 of the Federal 
Acquisition Regulation, in effect on the date of this contract, shall 
govern all costs claimed, agreed to, or determined under this clause.
    (g) The Carrier shall have the right of appeal, under the Disputes 
clause, from any determination made by the Contracting Officer under 
paragraph (c), (e), or (i) of this clause, except that if the Carrier 
failed to submit the termination settlement proposal or request for 
equitable adjustment within the time provided in paragraph (c) or (i), 
respectively, and failed to request a time extension, there is no right 
of appeal.
    (h) In arriving at the amount due the Carrier under this clause, 
there shall be deducted--
    (1) All unliquidated advance or other payments to the Carrier under 
the terminated portion of this contract;
    (2) Any claim which the Government has against the Carrier under 
this contract; and
    (i) If the termination is partial, the Carrier may file a proposal 
with the Contracting Officer for an equitable adjustment of the price(s) 
of the continued portion of the contract. The Contracting Officer shall 
make any equitable adjustment agreed upon. Any proposal by the Carrier 
for an equitable adjustment under this clause shall be requested within 
90 days from the effective date of termination unless extended in 
writing by the Contracting Officer.
    (j)(1) The Government may, under the terms and conditions it 
prescribes, make partial payments and payments against costs incurred by 
the Carrier for the terminated portion of the contract, if the 
Contracting Officer believes the total of these payments will not exceed 
the amount to which the Carrier will be entitled.
    (2) If the total payments exceed the amount finally determined to be 
due, the Carrier shall repay the excess to the Government upon demand, 
together with interest computed at the rate established by the Secretary 
of the Treasury under 50 U.S.C. App. 1215(b)(2). Interest shall be 
computed for the period from the date the excess payment is received by 
the Carrier to the date the excess is repaid.
    (k) Unless otherwise provided in this contract or by statute, the 
Carrier shall maintain all records and documents relating to the 
terminated portion of this contract for 3 years after final settlement. 
This includes all books and other evidence bearing on the Carrier's 
costs and expenses under this contract. The Carrier shall make these 
records and documents available to the Government, at the Carrier's 
office, at all reasonable times, without any direct charge. If approved 
by the Contracting Officer, photographs, microphotographs, or other 
authentic reproductions may be maintained instead of original records 
and documents.

                             (End of clause)

[62 FR 47579, Sept. 10, 1997]

[[Page 162]]



1652.249-72  FEHBP termination for default--negotiated benefits contracts.

    As prescribed in Sec.  1649.101-72, the following clause shall be 
inserted in all FEHBP contracts.

 FEHBP Termination for Default--Negotiated Benefits Contracts (JAN 1998)

    (a) (1) The Government may, subject to paragraphs (c) and (d) below, 
by written notice of default to the Carrier, terminate this contract in 
whole or in part if the Carrier fails to--
    (i) Perform the services within the time specified in this contract 
or any extension;
    (ii) Make progress, so as to endanger performance of this contract 
(but see subparagraph (a)(2) below); or
    (iii) Perform any of the other provisions of this contract (but see 
subparagraph (a)(2) below).
    (2) The Government's right to terminate this contract under 
subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Carrier 
does not cure such failure within 10 days (or more if authorized in 
writing by the Contracting Officer) after receipt of the notice from the 
Contracting Officer specifying the failure.
    (b) If the Government terminates this contract in whole or in part, 
it may acquire, under the terms and in the manner the Contracting 
Officer considers appropriate, supplies or service similar to those 
terminated, and the Carrier will be liable to the Government for any 
excess costs for those supplies or services. However, the Carrier shall 
continue the work not terminated.
    (c) Except for defaults of subcontractors at any tier, the Carrier 
shall not be liable for any excess costs if the failure to perform the 
contract arises from causes beyond the control and without the fault or 
negligence of the Carrier. Examples of such causes include (1) acts of 
God or of the public enemy, (2) acts of the Government in either its 
sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, 
(6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) 
unusually severe weather. In each instance the failure to perform must 
be beyond the control and without the fault or negligence of the 
Carrier.
    (d) If the failure to perform is caused by the default of a 
subcontractor at any tier, and if the cause of the default is beyond the 
control of both the Carrier and subcontractor, and without the fault or 
negligence of either, the Carrier shall not be liable for any excess 
costs for failure to perform, unless the subcontracted supplies or 
services were obtainable from other sources in sufficient time for the 
Carrier to meet the required delivery schedule.
    (e) If this contract is terminated for default, the Government may 
require the Carrier to transfer title and deliver to the Government, as 
directed by the Contracting Officer, any completed or partially 
completed information and contract rights that the Carrier has 
specifically produced or acquired for the terminated portion of this 
contract.
    (f) If, after termination, it is determined that the Carrier was not 
in default, or that the default was excusable, the rights and 
obligations of the parties shall be the same as if the termination had 
been issued for the convenience of the Government.
    (g) The rights and remedies of the Government in this clause are in 
addition to any other rights and remedies provided by law or under this 
contract.

                             (End of clause)

[62 FR 47580, Sept. 10, 1997]



                   Subpart 1652.3_FEHBP Clause Matrix



1652.370  Use of the matrix.

    (a) The matrix in this section lists the FAR and FEHBAR clauses to 
be used with contracts based on cost analysis and contracts based on a 
combination of cost and price analysis. Carriers shall submit initial 
applications and requests for renewals on the basis that the new 
contract or contract renewal will include the clauses indicated.
    (b) Certain contract clauses are mandatory for FEHBP contracts. 
Other clauses are to be used only when made applicable by pertinent 
sections of the FAR or FEHBAR. An ``M'' in the ``Use Status'' column 
indicates that the clause is mandatory. An ``A'' indicates that the 
clause is to be used only when the applicable conditions are met.
    (c) Clauses are incorporated in the contract either in full text or 
by reference. If the full text is to be used, the matrix indicates a 
``T''. If the clause is incorporated by reference, the matrix indicates 
an ``R''.

[[Page 163]]

[GRAPHIC] [TIFF OMITTED] TR01JN05.633


[[Page 164]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.634


[[Page 165]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.635


[[Page 166]]


[GRAPHIC] [TIFF OMITTED] TR01JN05.636


[52 FR 16044, May 1, 1987, as amended at 55 FR 27418, July 2, 1990; 59 
FR 14767, Mar. 30, 1994; 62 FR 47580, Sept. 10, 1997; 62 FR 50435, Sept. 
25, 1997; 63 FR 55339, Oct. 15, 1998; 65 FR 63388, June 8, 2000; 70 FR 
31385, June 1, 2005]

[[Page 167]]



PART 1653_FORMS--Table of Contents



    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.



1653.000  FEHBP forms.

    The following forms specified in FAR subparts 53.2 and 53.3 are 
applicable to FEHBP acquisitions:

------------------------------------------------------------------------
       Part 53.2                Part 53.3               Form title
------------------------------------------------------------------------
53.201-1                 53.301-1402             SF 1402-Certificate of
                                                  Appointment.
53.203                   53.301-119              SF 119--Statement of
                                                  Contingent or Other
                                                  Fees.
53.204-2(a)              53.301-279              SF 279 FPDS--Individual
                                                  Contract Action Report
                                                  (over $10,000).
53.204-2(b)              53.301-281              SF 281 FPDS--Summary of
                                                  Contract Actions of
                                                  $10,000 or less.
53.229                   53.301-1094             SF 1094--U.S. Tax
                                                  Exemption Certificate.
53.229                   53.301-1094A            SF 1094A--Tax Exemption
                                                  Certificates
                                                  Accountability Record.
------------------------------------------------------------------------


[52 FR 16048, May 1, 1987, as amended at 62 FR 47583. Sept. 10, 1997]



PART 1699_COST ACCOUNTING STANDARDS--Table of Contents



    Authority: 70 FR 31392, June 1, 2005, unless otherwise noted.



                Subpart 1699.7_Cost Accounting Standards



1699.70  Cost accounting standards.

    With respect to all experience-rated contracts currently existing 
under the FEHB Program, the Cost Accounting Standards, found at 48 CFR 
part 9904, of the Code of Federal Regulations, do not apply.

[[Page 169]]



               CHAPTER 17--OFFICE OF PERSONNEL MANAGEMENT




  --------------------------------------------------------------------
Part                                                                Page
1700-1732

 [Reserved]

1733            Protests, disputes, and appeals.............         171
1734-1799

 [Reserved]

[[Page 171]]

                       PARTS 1700	1732 [RESERVED]



PART 1733_PROTESTS, DISPUTES, AND APPEALS--Table of Contents



                   Subpart 1733.2_Disputes and Appeals

Sec.
1733.203 Applicability.
1733.203-70 Designation of the Interior Board of Contract Appeals to 
          decide OPM appeals.
1733.209 Suspected fraudulent claims.
1733.211 Contracting officer's decision.
1733.212 Contracting officer's duties upon appeal.
1733.214 Contract clause.

    Authority: 40 U.S.C. 486(c); 48 CFR 1.301.

    Source: 51 FR 44296, Dec. 9, 1986, unless otherwise noted.



                   Subpart 1733.2_Disputes and Appeals



1733.203  Applicability.

    (a) The Office of Personnel Management's (OPM) procurement executive 
shall make the determination prescribed under FAR 33.203(b).
    (b) Requests for determinations under paragraph (a) of this section 
shall be submitted by OPM's contracting officer through OPM's head of 
the contracting activity to the procurement executive for further 
action.



1733.203-70  Designation of the Interior Board of Contract Appeals to
decide OPM appeals.

    (a) The Interior Board of Contract Appeals (IBCA) has been 
designated by the Director of OPM to consider and determine appeals from 
decisions of a contracting officer arising under a contract or relating 
to a contract made by OPM. This delegation governs disputes between OPM 
and its prime contractors and does not encompass any claim made by a 
third party beneficiary of, or by a subscriber to, a Federal employee 
insurance program.
    (b) The address of IBCA is 801 North Quincy Street, Arlington, VA 
22203.
    (c) IBCA rules of procedure can be found in 43 CFR part 4.

[51 FR 44296, Dec. 9, 1986, as amended at 68 FR 62022, Oct. 31, 2003]



1733.209  Suspected fraudulent claims.

    If the contractor is unable to support any part of the claim and 
there is evidence that the inability is attributable to 
misrepresentation of fact or to fraud on the part of the contractor, the 
contracting officer shall refer the matter through the head of the 
contracting activity to OPM's Offices of the Inspector General and the 
General Counsel.



1733.211  Contracting officer's decision.

    The written decision required by FAR 33.211(a)(4) shall include, in 
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to 
the Interior Board of Contract Appeals, 801 North Quincy Street, 
Arlington, VA 22203, and its procedures under 43 CFR part 4. The IBCA 
optional small claims (expedited) procedures and accelerated procedures 
under 43 CFR 4.113 shall also be referenced as required by the FAR.

[51 FR 44296, Dec. 9, 1986, as amended at 51 FR 44296, Dec. 9, 1986]



1733.212  Contracting officer's duties upon appeal.

    (a) When a notice of appeal has been received, the contracting 
officer shall endorse on the appeal the date of mailing (or the date of 
receipt if the notice was not mailed) and forward it to IBCA by 
certified mail within 5 days of receipt. OPM's Office of the General 
Counsel and the Department of the Interior's (DOI) Office of the 
Solicitor shall also be notified of the appeal by the contracting 
officer. 43 CFR 4.103.
    (b) The contracting officer shall prepare and transmit the 
documentation and information required by 43 CFR 4.104 in the form of an 
appeal file to IBCA, OPM's Office of the General Counsel, DOI's Office 
of the Solicitor, and appellant or appellant's counsel within 30 days 
after receipt of a notice of appeal or advice that an appeal has been 
docketed by IBCA.



1733.214  Contract clause.

    The Disputes clause contained in FAR 52.233-1 shall be used with its 
Alternate I in all OPM solicitations and contracts.

                       PARTS 1734	1799 [RESERVED]

[[Page 173]]



        CHAPTER 18--NATIONAL AERONAUTICS AND SPACE ADMINISTRATION




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


  Editorial Note: Nomenclature changes to chapter 18 appear at 58 FR 
51136, Sept. 30, 1993, and 67 FR 30602, May 7, 2002.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1800

[Reserved]

1801            Federal Acquisition Regulations System......         175
1802            Definitions of words and terms..............         176
1803            Improper business practices and personal 
                    conflicts of interest...................         176
1804            Administrative matters......................         180
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
1805            Publicizing contract actions................         182
1806            Competition requirements....................         182
1807            Acquisition planning........................         182
1808            Required sources of supplies and services...         183
1809            Contractor qualifications...................         183
1811            Describing agency needs.....................         184
1812            Acquisition of commercial items.............         184
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
1813            Simplified acquisition procedures...........         187
1814            Sealed bidding..............................         187
1815            Contracting by negotiation..................         188
1816            Types of contracts..........................         192
1817            Special contracting methods.................         203
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
1819            Small business programs.....................         204
1822            Application of labor laws to Government 
                    acquisitions............................         209
1823            Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         209
1824            Protection of privacy and freedom of 
                    information.............................         211

[[Page 174]]

1825            Foreign acquisition.........................         212
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
1827            Patents, data, and copyrights...............         214
1828            Bonds and insurance.........................         221
1830            Cost accounting standards administration....         224
1831            Contract cost principles and procedures.....         225
1832            Contract financing..........................         225
1833            Protests, disputes, and appeals.............         228
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
1834            Major system acquisition....................         229
1835            Research and development contracting........         230
1836            Construction and architect-engineer 
                    contracts...............................         231
1837            Service contracting.........................         233
1839            Acquisition of information technology.......         235
                    SUBCHAPTER G--CONTRACT MANAGEMENT
1840

[Reserved]

1841            Acquisition of utility services.............         236
1842            Contract administration and audit services..         236
1843            Contract modifications......................         237
1844            Subcontracting policies and procedures......         238
1845            Government property.........................         238
1846            Quality assurance...........................         248
1847            Transportation..............................         254
1849            Termination of contracts....................         254
1850            Extraordinary contractual actions and The 
                    Safety Act..............................         255
1851            Use of Government sources by contractors....         256
                     SUBCHAPTER H--CLAUSES AND FORMS
1852            Solicitation provisions and contract clauses         258
1853

[Reserved]

             SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
1872-1899

 [Reserved]

[[Page 175]]



                          SUBCHAPTER A_GENERAL



                          PART 1800 [RESERVED]



PART 1801_FEDERAL ACQUISITION REGULATIONS SYSTEM--Table of Contents



Sec.
1801.000 Scope of part.

               Subpart 1801.1_Purpose, Authority, Issuance

1801.103 Authority.
1801.104 Applicability.
1801.105 Issuance.
1801.105-1 Publication and code arrangement.
1801.105-2 Arrangement of regulations.
1801.106 OMB approval under the Paperwork Reduction Act.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 40534, Aug. 5, 1996, unless otherwise noted.



1801.000  Scope of part.

    This part sets forth general information about the National 
Aeronautics and Space Administration (NASA) Federal Acquisition 
Regulations (FAR) Supplement, also referred to as the NFS.



               Subpart 1801.1_Purpose, Authority, Issuance



1801.103  Authority. (NASA supplements paragraph (a))

    (a) Under the following authorities, the Administrator has delegated 
to the Assistant Administrator for Procurement authority to prepare, 
issue, and maintain the NFS:
    (i) The National Aeronautics and Space Act of 1958 (Public Law 85-
568; 42 U.S.C. 2451 et seq.).
    (ii) 10 U.S.C. chapter 137.
    (iii) Other statutory authority.
    (iv) FAR subpart 1.3.



1801.104  Applicability.

    The NFS applies to all acquisitions as defined in FAR part 2 except 
those expressly excluded by the FAR or this chapter.



1801.105  Issuance.



1801.105-1  Publication and code arrangement.

    (b)(i) The NFS is an integrated document that contains both 
acquisition regulations that require public comment and internal Agency 
guidance and procedures that do not require public comment. NASA 
personnel must comply with all regulatory and internal guidance and 
procedures contained in the NFS.
    (ii) NFS regulations that require public comment are issued as 
chapter 18 of title 48, CFR.
    (iii) The single official NASA-maintained version of the NFS is on 
the Internet (http://www.hq.nasa.gov/office/procurement/regs/
nfstoc.htm).

[69 FR 21762, Apr. 22, 2004]



1801.105-2  Arrangement of regulations. (NASA supplements paragraph (b))

    (b)(1)(A) Numbering of NFS text implementing the FAR shall be the 
same as that of the related FAR text, except when the NFS coverage 
exceeds one paragraph. In such case the NFS text is numbered by skipping 
a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence. For 
example, two paragraphs implementing FAR 1.105-2(b)(1) are numbered 
1801.105-2(b)(1) (A) and (B), rather than (1) (i) and (ii). Further 
subdivision of the NFS implementing paragraphs would follow the 
prescribed sequence in FAR 1.105(b)(2).
    (B) NFS text that supplements the FAR is numbered the same as its 
FAR counterpart with the addition of a number 70 and up. For example, 
NFS supplement of FAR subsection 1.105-3 is numbered 1801.105-370. 
Supplemental text exceeding one paragraph is numbered using the FAR 
1.105-2(b)(2) prescribed numbering sequence without skipping a unit.
    (2) Subdivision numbering below the fourth level repeats the 
numbering sequence using italicized letters and numbers.

[[Page 176]]



1801.106  OMB approval under the Paperwork Reduction Act.

    The following OMB control numbers apply:

------------------------------------------------------------------------
                                                             OMB control
                        NFS Segment                              No.
------------------------------------------------------------------------
1823.......................................................    2700-0089
1827.......................................................    2700-0052
1852.223-70................................................    2700-0160
NF 533.....................................................    2700-0003
NF 1018....................................................    2700-0017
------------------------------------------------------------------------


[81 FR 75345, Oct. 31, 2016]



PART 1802_DEFINITIONS OF WORDS AND TERMS--Table of Contents



Sec.
1802.000 Scope of part.

                       Subpart 1802.1_Definitions

1802.101 Definitions.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.



1802.000  Scope of part.

    Commonly used words and terms are defined in FAR subpart 2.1. This 
part 1802 gives NASA-specific meanings for some of these words and terms 
and defines other words and terms commonly used in the NASA acquisition 
process.



                       Subpart 1802.1_Definitions



1802.101  Definitions.

    Administrator means the Administrator or Deputy Administrator of 
NASA.
    Contracting activity in NASA includes the NASA Headquarters 
installation, the NASA Shared Services Center, and the following field 
installations: Ames Research Center, Dryden Flight Research Center, 
Glenn Research Center at Lewis Field, Goddard Space Flight Center, 
Johnson Space Center, Kennedy Space Center, Langley Research Center, 
Marshall Space Flight Center and Stennis Space Center. A major program 
that may have contracts at multiple field centers may also be considered 
a ``contracting activity.''
    Head of the agency or agency head means the Administrator or Deputy 
Administrator of NASA.
    Head of the contracting activity (HCA) means, for field 
installations, the Director or other head, and for NASA Headquarters, 
the Director for Headquarters Operations. For Human Exploration and 
Operations Mission Directorate (HEOMD) contracts, the HCA is the 
Associate Administrator for HEOMD in lieu of the field Center 
Director(s). For NASA Shared Services Center (NSSC) contracts, the HCA 
is the Executive Director of the NSSC in lieu of the field Center 
Director(s).
    NASA Acquisition Internet Service (NAIS) means the Internet service 
(URL: hhtp://procurement.nasa.gov) NASA uses to broadcast its business 
opportunities, procurement regulations, and associated information.
    Procurement officer means the chief of the contracting office, as 
defined in FAR 2.101.
    Senior Procurement Executive means the Associate Administrator or 
Deputy Assistant Administrator for Procurement, Office of Procurement, 
NASA Headquarters (Code H).

[61 FR 40537, Aug. 5, 1996, as amended at 63 FR 9953, Feb. 27, 1998; 64 
FR 19926, Apr. 23, 1999; 68 FR 23423, May 2, 2003; 70 FR 52941, Sept. 6, 
2005; 71 FR 7873, Feb. 15, 2006; 71 FR 71073, Dec. 8, 2006; 80 FR 36720, 
June 26, 2015]



PART 1803_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
--Table of Contents



                        Subpart 1803.1_Safeguards

Sec.
1803.104 Procurement integrity.
1803.104-1 Definitions.

      Subpart 1803.9_Contractor Employee Whistleblower Protections

1803.900 Scope of subpart.
1803.901 Definition.
1803.903 Policy.
1803.904 Procedures for filing complaints.
1803.905 Procedures for investigating complaints.
1803.906 Remedies.
1803.907 Classified information.
1803.970 Contract clause.

                   Subpart 1803.70_IG Hotline Posters

1803.7000 Policy.

[[Page 177]]

1803.7001 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 40537, Aug. 5, 1996, unless otherwise noted.



                        Subpart 1803.1_Safeguards



1803.104  Procurement integrity.



1803.104-1  Definitions.

    Agency ethics official means for Headquarters, the General Counsel 
and the Associate General Counsel for General Law, and for each center, 
the Chief Counsel.

[62 FR 36704, July 9, 1997. Redesignated at 67 FR 30603, May 7, 2002]



      Subpart 1803.9_Contractor Employee Whistleblower Protections

    Source: 79 FR 43959, July 29, 2014, unless otherwise noted.



1803.900  Scope of subpart.

    This subpart applies to NASA instead of FAR subpart 3.9.
    (a) This subpart implements 10 U.S.C. 2409 as amended by section 846 
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 
110-181), section 842 of the National Defense Authorization Act for 
Fiscal Year 2009 (Pub. L. 110-417), and section 827 of the National 
Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239).
    (b) This subpart does not apply to any element of the intelligence 
community, as defined in 50 U.S.C. 3003(4). This subpart does not apply 
to any disclosure made by an employee of a contractor or subcontractor 
of an element of the intelligence community if such disclosure--
    (1) Relates to an activity or an element of the intelligence 
community; or
    (2) Was discovered during contract or subcontract services provided 
to an element of the intelligence community.



1803.901  Definition.

    Abuse of authority, as used in this subpart, means an arbitrary and 
capricious exercise of authority that is inconsistent with the mission 
of NASA or the successful performance of a NASA contract.



1803.903  Policy.

    (a) Policy. 10 U.S.C. 2409 prohibits contractors or subcontractors 
from discharging, demoting, or otherwise discriminating against an 
employee as a reprisal for disclosing, to any of the entities listed at 
paragraph (b) of this section, information that the employee reasonably 
believes is evidence of gross mismanagement of a NASA contract, a gross 
waste of NASA funds, an abuse of authority relating to a NASA contract, 
a substantial and specific danger to public health or safety, or a 
violation of law, rule, or regulation related to a NASA contract 
(including the competition for or negotiation of a contract). Such 
reprisal is prohibited even if it is undertaken at the request of an 
executive branch official, unless the request takes the form of a non-
discretionary directive and is within the authority of the executive 
branch official making the request.
    (b) Entities to whom disclosure may be made:
    (1) A Member of Congress or a representative of a committee of 
Congress.
    (2) The NASA Inspector General or any other Inspector General that 
has oversight over contracts awarded by or on behalf of NASA.
    (3) The Government Accountability Office.
    (4) A NASA employee responsible for contract oversight or 
management.
    (5) An authorized official of the Department of Justice or other law 
enforcement agency.
    (6) A court or grand jury.
    (7) A management official or other employee of the contractor or 
subcontractor who has the responsibility to investigate, discover, or 
address misconduct.
    (c) Disclosure clarified. An employee who initiates or provides 
evidence of contractor or subcontractor misconduct in any judicial or 
administrative proceeding relating to waste, fraud, or abuse on a NASA 
contract shall be deemed to have made a disclosure.

[[Page 178]]

    (d) Contracting officer actions. A contracting officer who receives 
a complaint of reprisal of the type described in paragraph (a) of this 
section shall forward it to legal counsel and to the NASA Inspector 
General.



1803.904  Procedures for filing complaints.

    (a) Any employee of a contractor or subcontractor who believes that 
he or she has been discharged, demoted, or otherwise discriminated 
against contrary to the policy in 1803.903 may file a complaint with the 
Inspector General of NASA.
    (b) A complaint may not be brought under this section more than 
three years after the date on which the alleged reprisal took place.
    (c) The complaint shall be signed and shall contain--
    (1) The name of the contractor;
    (2) The contract number, if known; if not known, a description 
reasonably sufficient to identify the contract(s) involved;
    (3) The violation of law, rule, or regulation giving rise to the 
disclosure;
    (4) The nature of the disclosure giving rise to the discriminatory 
act, including the party to whom the information was disclosed; and
    (5) The specific nature and date of the reprisal.



1803.905  Procedures for investigating complaints.

    (a) Unless the NASA Inspector General makes a determination that the 
complaint is frivolous, fails to allege a violation of the prohibition 
in 1803.903, or has been previously addressed in another Federal or 
State judicial or administrative proceeding initiated by the 
complainant, the NASA Inspector General will investigate the complaint.
    (b) If the NASA Inspector General determines that a complaint merits 
further investigation, the NASA Inspector General will--
    (1) Notify the complainant, the contractor alleged to have committed 
the violation, and the head of the Agency;
    (2) Conduct an investigation; and
    (3) Provide a written report of findings to the complainant, the 
contractor alleged to have committed the violation, and the head of the 
Agency.
    (c) The NASA Inspector General--
    (1) Will determine that the complaint is frivolous or will submit 
the report addressed in paragraph (b) of this section within 180 days 
after receiving the complaint; and
    (2) If unable to submit a report within 180 days, will submit the 
report within the additional time period, up to 180 days, to which the 
person submitting the complaint agrees.
    (d) The NASA Inspector General may not respond to any inquiry or 
disclose any information from or about any person alleging the reprisal, 
except to the extent that such response or disclosure is--
    (1) Made with the consent of the person alleging reprisal;
    (2) Made in accordance with 5 U.S.C. 552a (the Freedom of 
Information Act) or as required by any other applicable Federal law; or
    (3) Necessary to conduct an investigation of the alleged reprisal.
    (e) The legal burden of proof specified at paragraph (e) of 5 U.S.C. 
1221 (Individual Right of Action in Certain Reprisal Cases) shall be 
controlling for the purposes of an investigation conducted by the NASA 
Inspector General, decision by the head of the Agency, or judicial or 
administrative proceeding to determine whether prohibited discrimination 
has occurred.



1803.906  Remedies.

    (a) Not later than 30 days after receiving a NASA Inspector General 
report in accordance with 1803.905, the head of the Agency shall 
determine whether sufficient basis exists to conclude that the 
contractor has subjected the complainant to a reprisal as prohibited by 
1803.903 and shall either issue an order denying relief or shall take 
one or more of the following actions:
    (1) Order the contractor to take affirmative action to abate the 
reprisal.
    (2) Order the contractor to reinstate the person to the position 
that the person held before the reprisal, together with compensatory 
damages (including back pay), employment benefits, and other terms and 
conditions of employment that would apply to the person in that position 
if the reprisal had not been taken.

[[Page 179]]

    (3) Order the contractor to pay the complainant an amount equal to 
the aggregate amount of all costs and expenses (including attorneys' 
fees and expert witnesses' fees) that were reasonably incurred by the 
complainant for, or in connection with, bringing the complaint regarding 
the reprisal, as determined by the head of the Agency.
    (b) If the head of the Agency issues an order denying relief or has 
not issued an order within 210 days after the submission of the 
complaint or within 30 days after the expiration of an extension of time 
granted in accordance with 1803.905(3)(ii), and there is no showing that 
such delay is due to the bad faith of the complainant--
    (1) The complainant shall be deemed to have exhausted all 
administrative remedies with respect to the complaint; and
    (2) The complainant may bring a de novo action at law or equity 
against the contractor to seek compensatory damages and other relief 
available under 10 U.S.C. 2409 in the appropriate district court of the 
United States, which shall have jurisdiction over such an action without 
regard to the amount in controversy. Such an action shall, at the 
request of either party to the action, be tried by the court with a 
jury. An action under this authority may not be brought more than two 
years after the date on which remedies are deemed to have been 
exhausted.
    (c) Whenever a contractor fails to comply with an order issued by 
the head of agency in accordance with 10 U.S.C. 2409, the head of the 
Agency or designee shall request the Department of Justice to file an 
action for enforcement of such order in the United States district court 
for a district in which the reprisal was found to have occurred. In any 
action brought under this paragraph, the court may grant appropriate 
relief, including injunctive relief, compensatory and exemplary damages, 
and reasonable attorney fees and costs. The person upon whose behalf an 
order was issued may also file such an action or join in an action filed 
by the head of the agency.
    (d) Any person adversely affected or aggrieved by an order issued by 
the head of the Agency in accordance with 10 U.S.C. 2409 may obtain 
judicial review of the order's conformance with the law, and the 
implementing regulation, in the United States Court of Appeals for a 
circuit in which the reprisal is alleged in the order to have occurred. 
No petition seeking such review may be filed more than 60 days after 
issuance of the order by the head of the agency or designee. Review 
shall conform to chapter 7 of title 5, Unites States Code. Filing such 
an appeal shall not act to stay the enforcement of the order by the head 
of an agency, unless a stay is specifically entered by the court.
    (e) The rights and remedies provided for in this subpart may not be 
waived by any agreement, policy, form, or condition of employment.



1803.907  Classified information.

    Nothing in this subpart provides any rights to disclose classified 
information not otherwise provided by law.



1803.970  Contract clause.

    Use the clause at 1852.203-71, Requirement to Inform Employees of 
Whistleblower Rights, in all solicitations and contracts.



                   Subpart 1803.70_IG Hotline Posters



1803.7000  Policy.

    NASA requires contractors to display NASA hotline posters prepared 
by the NASA Office of Inspector General on those contracts specified in 
1803.7001, so that employees of the contractor having knowledge of 
waste, fraud, or abuse, can readily identify a means to contact NASA's 
IG.

[66 FR 29727, June 1, 2001]



1803.7001  Contract clause.

    Contracting officers must insert the clause at 1852.203-70, Display 
of Inspector General Hotline Posters, in solicitations and contracts 
expected to exceed $5,000,000 and performed at contractor facilities in 
the United States.

[66 FR 29727, June 1, 2001]

[[Page 180]]



PART 1804_ADMINISTRATIVE MATTERS--Table of Contents



                    Subpart 1804.1_Contract Executive

Sec.
1804.170 Contract effective date.

   Subpart 1804.4_Safeguarding Classified Information Within Industry

1804.404-70 Contract clause.
1804.470 Security requirements for unclassified information technology 
          (IT) resources.
1804.470-1 Scope.
1804.470-2 Policy.
1804.470-3 IT security requirements.
1804.470-4 Contract clauses.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 40539, Aug. 5, 1996, unless otherwise noted.



                    Subpart 1804.1_Contract Execution



1804.170  Contract effective date.

    (a) Contract effective date means the date agreed upon by the 
parties for beginning the period of performance under the contract. In 
no case shall the effective date precede the date on which the 
contracting officer or designated higher approval authority signs the 
document.
    (b) Costs incurred before the contract effective date are 
unallowable unless they qualify as precontract costs (see FAR 31.205-32) 
and the clause prescribed at 1831.205-70 is used.



   Subpart 1804.4_Safeguarding Classified Information Within Industry



1804.404-70  Contract clause.

    The contracting officer shall insert the clause at 1852.204-75, 
Security Classification Requirements, in solicitations and contracts if 
work is to be performed will require security clearances. This clause 
may be modified to add instructions for obtaining security clearances 
and access to security areas that are applicable to the particular 
acquisition and installation.



1804.470  Security requirements for unclassified information technology
(IT) resources.



1804.470-1  Scope.

    This section implements NASA's acquisition requirements pertaining 
to Federal policies for the security of unclassified information and 
information systems. Federal policies include the Federal Information 
System Management Act (FISMA) of 2002, Homeland Security Presidential 
Directive (HSPD) 12, Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.), 
OMB Circular A-130, Management of Federal Information Resources, and the 
National Institute of Standards and Technology (NIST) security 
requirements and standards. These requirements safeguard IT services 
provided to NASA such as the management, operation, maintenance, 
development, and administration of hardware, software, firmware, 
computer systems, networks, and telecommunications systems.

[72 FR 26561, May 10, 2007]



1804.470-2  Policy.

    NASA IT security policies and procedures for unclassified 
information and IT are prescribed in NASA Policy Directive (NPD) 2810, 
Security of Information Technology; NASA Procedural Requirements (NPR) 
2810, Security of Information Technology; and interim policy updates in 
the form of NASA Information Technology Requirements (NITR). IT services 
must be performed in accordance with these policies and procedures.

[72 FR 26561, May 10, 2007]



1804.470-3  IT security requirements.

    (a) These IT security requirements cover all NASA awards in which IT 
plays a role in the provisioning of services or products (e.g., research 
and development, engineering, manufacturing, IT outsourcing, human 
resources, and finance) that support NASA in meeting its institutional 
and mission objectives. These requirements are applicable when a 
contractor or subcontractor must obtain physical or electronic access 
beyond that granted the general public to NASA's computer

[[Page 181]]

systems, networks, or IT infrastructure. These requirements are 
applicable when NASA information is generated, stored, processed, or 
exchanged with NASA or on behalf of NASA by a contractor or 
subcontractor, regardless of whether the information resides on a NASA 
or a contractor/subcontractor's information system.
    (b) The Applicable Documents List (ADL) should consist of all NASA 
Agency-level IT Security and Center IT Security Policies applicable to 
the contract. Documents listed in the ADL as well as applicable Federal 
IT Security Policies are available at the NASA IT Security Policy Web 
site at: http://www.nasa.gov/offices/ocio/itsecurity/index.html.

[76 FR 4080, Jan. 24, 2011]



1804.470-4  Contract clause.

    (a) Insert the clause at 1852.204-76, Security Requirements for 
Unclassified Information Technology Resources, in all solicitations and 
awards when contract performance requires contractors to--
    (1) Have physical or electronic access to NASA's computer systems, 
networks, or IT infrastructure; or
    (2) Use information systems to generate, store, process, or exchange 
data with NASA or on behalf of NASA, regardless of whether the data 
resides on a NASA or a contractor's information system.
    (b) Parts of the clause and referenced ADL may be waived by the 
contracting officer if the contractor's ongoing IT security program 
meets or exceeds the requirements of NASA Procedural Requirements (NPR) 
2810.1 in effect at time of award. The current version of NPR 2810.1 is 
referenced in the ADL. The contractor shall submit a written waiver 
request to the Contracting Officer within 30 days of award. The waiver 
request will be reviewed by the Center IT Security Manager. If approved, 
the Contractor Officer will notify the contractor, by contract 
modification, which parts of the clause or provisions of the ADL are 
waived.

[76 FR 4080, Jan. 24, 2011]

[[Page 182]]



            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING





PART 1805_PUBLICIZING CONTRACT ACTIONS--Table of Contents



               Subpart 1805.3_Synopses of Contract Awards

Sec.
1805.303 Announcement of contract awards.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 40543, Aug. 5, 1996, unless otherwise noted.



               Subpart 1805.3_Synopses of Contract Awards



1805.303  Announcement of contract awards.

    (a)(i) In lieu of the threshold cited in FAR 5.303(a), a NASA 
Headquarters public announcement is required for award of contract 
actions that have a total anticipated value, including unexercised 
options, of $5 million or greater.

[80 FR 36720, June 26, 2015]



PART 1806_COMPETITION REQUIREMENTS--Table of Contents



   Subpart 1806.2_Full and Open Competition After Exclusion of Sources

1806.202 Establishing or maintaining alternative sources. (NASA 
          supplements paragraphs (a) and (b)).

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 40545, Aug. 5, 1996, unless otherwise noted.



   Subpart 1806.2_Full and Open Competition After Exclusion of Sources



1806.202  Establishing or maintaining alternative sources. 
(NASA supplements paragraphs (a) and (b)).

    (a) The authority of FAR 6.202 is to be used to totally or partially 
exclude a particular source.

[61 FR 40545, Aug. 5, 1996, as amended at 69 FR 21762, Apr. 22, 2004]



PART 1807_ACQUISITION PLANNING--Table of Contents



                 Subpart 1807.72_Acquisition Forecasting

Sec.
1807.7200 Policy.
1807.7201 Definitions.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 47068, Sept. 6, 1996, unless otherwise noted.



                 Subpart 1807.72_Acquisition Forecasting



1807.7200  Policy.

    (a) As required by the Business Opportunity Development Reform Act 
of 1988, it is NASA policy to--
    (1) Prepare an annual forecast and semiannual update of expected 
contract opportunities or classes of contract opportunities for each 
fiscal year;
    (2) Include in the forecast contract opportunities that small 
business concerns, including those owned and controlled by socially and 
economically disadvantaged individuals, may be capable of performing; 
and
    (3) Make available such forecasts to the public.
    (b) The annual forecast and semiannual update are available on the 
NASA Acquisition Internet Service (http://www.hq.nasa.gov/office/
procurement/forecast/index.html).

[69 FR 21763, Apr. 22, 2004, as amended at 80 FR 36720, June 26, 2015]



1807.7201  Definitions.

    Class of contracts means a grouping of acquisitions, either by 
dollar value or by the nature of supplies and services to be acquired.
    Contract opportunity means planned new contract awards exceeding the 
simplified acquisition threshold (SAT).

[61 FR 47068, Sept. 6, 1996, as amended at 80 FR 36720, June 26, 2015]

[[Page 183]]



PART 1808_REQUIRED SOURCES OF SUPPLIES AND SERVICES--Table of Contents



    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 47073, Sept. 6, 1996, unless otherwise noted.



       Subpart 1808.8_Acquisition of Printing and Related Supplies



1808.870  Contract clause.

    The contracting officer shall insert the clause at 1852.208-81, 
Restrictions on Printing and Duplicating, in solicitations and contracts 
where there is a requirement for any printing, and/or any duplicating/
copying in excess of that described in paragraph (c) of the clause.



PART 1809_CONTRACTOR QUALIFICATIONS--Table of Contents



           Subpart 1809.1_Responsible Prospective Contractors

Sec.
1809.104-4 Subcontractor responsibility.
1809.105-2 Determinations and documentation.

               Subpart 1809.2_Qualifications Requirements

1809.206 Acquisitions subject to qualification requirements.
1809.206-1 General.

         Subpart 1809.4_Debarment, Suspension, and Ineligibility

1809.403 Definitions.

   Subpart 1809.5_Organizational and Consultant Conflicts of Interest

1809.505-4 Obtaining access to sensitive information.
1809.507 Solicitation provisions and contract clause.
1809.507-2 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 47075, Sept. 6, 1996, unless otherwise noted.



           Subpart 1809.1_Responsible Prospective Contractors



1809.104-4  Subcontractor responsibility.

    Generally, the Canadian Commercial Corporation's (CCC) proposal of a 
firm as its subcontractor is sufficient basis for an affirmative 
determination of responsibility. However, when the CCC determination of 
responsibility is not consistent with other information available to the 
contracting office, the contracting officer shall request from the CCC 
and any other sources whatever information is necessary to make the 
responsibility determination.
    Upon request, CCC shall be furnished the rationale for any 
subsequent determination of nonresponsibility.



1809.105-2  Determinations and documentation.

    (a) The contracting officer shall provide written notification to a 
prospective contractor determined not responsible, which includes the 
basis for the determination. Notification provides the prospective 
contractor with the opportunity to take corrective action prior to 
future solicitations.

[76 FR 72328, Nov. 23, 2011]



                Subpart 1809.2_Qualification requirements



1809.206  Acquisitions subject to qualification requirements.



1809.206-1  General. (NASA supplements paragraph (b) and (c))

    (c) If an offeror seeks to demonstrate its capability, both the 
product and the producer must meet the established standards.

[61 FR 47075, Sept. 6, 1996, as amended at 69 FR 21763, Apr. 22, 2004]



         Subpart 1809.4_Debarment, Suspension, and Ineligibility



1809.403  Definitions.

    For purposes of FAR subpart 9.4 and this subpart, the Deputy General 
Counsel is the ``debarring official,'' the

[[Page 184]]

``suspending official,'' and the agency head's ``designee.''

[81 FR 12420, Mar. 9, 2016]



   Subpart 1809.5_Organizational and Consultant Conflicts of Interest



1809.505-4  Obtaining access to sensitive information.

    (b) In accordance with FAR 9.503, the Assistant Administrator for 
Procurement has determined that it would not be in the Government's 
interests for NASA to comply strictly with FAR 9.505-4(b) when acquiring 
services to support management activities and administrative functions. 
The Assistant Administrator for Procurement has, therefore, waived the 
requirement that before gaining access to other companies' proprietary 
or sensitive (see 1837.203-70) information contractors must enter 
specific agreements with each of those other companies to protect their 
information from unauthorized use or disclosure. Accordingly, NASA will 
not require contractors and subcontractors and their employees in 
procurements that support management activities and administrative 
functions to enter into separate, interrelated third party agreements to 
protect sensitive information from unauthorized use or disclosure. As an 
alternative to numerous, separate third party agreements, 1837.203-70 
prescribes detailed policy and procedures to protect contractors from 
unauthorized use or disclosure of their sensitive information. Nothing 
in this section waives the requirements of FAR 37.204 and 1837.204.

[70 FR 35554, June 21, 2005]



1809.507  Solicitation provisions and contract clause.



1809.507-2  Contract clause.

    The contracting officer may insert a clause substantially the same 
as the clause at 1852.209-71, Limitation of Future Contracting, in 
solicitations and contracts.



PART 1811_DESCRIBING AGENCY NEEDS--Table of Contents



    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 65 FR 37062, June 13, 2000], uness otherwise noted.



            Subpart 1811.4_Delivery or Performance Schedules



1811.404-70  NASA contract clauses.

    The clause at 1852.211-70, Packaging, Handling, and Transportation, 
must be included in solicitations and contracts for deliverable items, 
including software, designated as Class I (mission essential), Class II 
(delicate or sensitive), or Class III (requires special handling or 
monitoring).



PART 1812_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents



  Subpart 1812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items

Sec.
1812.301 Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

          Subpart 1812.70_Commercial Space Hardware or Services

1812.7000 Anchor tenancy contracts.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.



  Subpart 1812.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



1812.301  Solicitation provisions and contract clauses for the
acquisition of commercial items.

    (f)(i) The following clauses are authorized for use in acquisitions 
of commercial items when required by the clause prescription:
    (A) 1852.204-75, Security Classification Requirements.

[[Page 185]]

    (B) 1852.204-76, Security Requirements for Unclassified Information 
Technology Resources.
    (C) 1852.215-84, Ombudsman.
    (D) 1852.216-80, Task Order Procedures (Alternate I).
    (E) 1852.216-88, Performance Incentive.
    (F) 1852.219-73, Small Business Subcontracting Plan.
    (G) 1852.219-75, Individual Subcontracting Reports.
    (H) 1852.223-70, Safety and Health.
    (I) 1852.223-71, Frequency Authorization.
    (J) 1852.223-72, Safety and Health (Short Form).
    (K) 1852.223-73, Safety and Health Plan.
    (L) 1852.223-75, Major Breach of Safety and Security (Alternate I).
    (M) 1852.225-70, Export Licenses.
    (N) 1852.228-76, Cross-Waiver of Liability for International Space 
Station Activities.
    (O) 1852.228-78, Cross-Waiver of Liability for Science or Space 
Exploration Activities Unrelated to the International Space Station.
    (P) 1852.237-70, Emergency Evacuation Procedures.
    (Q) 1852.237-72, Access to Sensitive Information.
    (R) 1852.237-73, Release of Sensitive Information.
    (S) 1852.246-72, Material Inspection and Receiving Report.
    (T) 1852.247.71, Protection of the Florida Manatee.

[80 FR 36720, June 26, 2015, as amended at 81 FR 10520, Mar. 1, 2016]



          Subpart 1812.70_Commercial Space Hardware or Services



1812.7000  Anchor tenancy contracts.

    (a) The term ``anchor tenancy'' means an arrangement in which the 
United States Government agrees to procure sufficient quantities of a 
commercial space product or service needed to meet Government mission 
requirements so that a commercial venture is made viable.
    (b) Subject to receiving an appropriation that:
    (1) Authorizes a multi-year anchor tenancy contract; and
    (2) Specifies the commercial space product or service to be 
developed or used, NASA may enter into a multi-year anchor tenancy 
contract only if Administrator determines--
    (i) The good or service meets the mission requirements of the 
National Aeronautics and Space Administration;
    (ii) The commercially procured good or service is cost effective;
    (iii) The good or service is procured through a competitive process;
    (iv) Existing or potential customers for the good or service other 
than the United States Government have been specifically identified;
    (v) The long-term viability of the venture is not dependent upon a 
continued Government market or other nonreimbursable Government support; 
and
    (vi) Private capital is at risk in the venture.
    (c) Contracts entered into under such authority may provide for the 
payment of termination liability in the event that the Government 
terminates such contracts for its convenience.
    (1) Contracts that provide for this payment of termination liability 
shall include a fixed schedule of such termination liability payments. 
Liability under such contracts shall not exceed the total payments which 
the Government would have made after the date of termination to purchase 
the good or service if the contract were not terminated.
    (2) Subject to appropriations, funds available for such termination 
liability payments may be used for purchase of the good or service upon 
successful delivery of the good or service pursuant to the contract. In 
such case, sufficient funds shall remain available to cover any 
remaining termination liability.
    (d) Limitations. (1) Contracts entered into under such authority 
shall not exceed 10 years in duration.
    (2) Such contracts shall provide for delivery of the good or service 
on a firm, fixed price basis.
    (3) To the extent practicable, reasonable performance specifications 
shall be used to define technical requirements in such contracts.

[[Page 186]]

    (4) In any such contract, the Administrator shall reserve the right 
to completely or partially terminate the contract without payment of 
such termination liability because of the contractor's actual or 
anticipated failure to perform its contractual obligations.

[77 FR 65497, Oct. 29, 2012, as amended at 80 FR 36721, June 26, 2015]

[[Page 187]]



           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES





PART 1813_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents



Sec.
1813.003 Policy.

              Subpart 1813.3_Simplified Acquisition Methods

1813.302-570 NASA solicitation provisions.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 63 FR 40189, July 28, 1998, unless otherwise noted.



1813.003  Policy. (NASA supplements paragraph (g))

    (g) Acquisitions under these simplified acquisition procedures shall 
be fixed-price, except as provided under the unpriced purchase order 
method in FAR 13.302-2.

[63 FR 40189, July 28, 1998, as amended at 64 FR 5620, Feb. 4, 1999]



              Subpart 1813.3_Simplified Acquisition Methods



1813.302-570  NASA solicitation provisions.

    (a)(1) The contracting officer may use the provision at 1852.213-70, 
Offeror Representations and Certifications--Other Than Commercial Items, 
in simplified acquisitions exceeding the mircro-purchase threshold that 
are for other than commercial items. This provision shall not be used 
for acquisition of commercial items as defined in FAR 2.101.
    (2) This provision provides a single, consolidated list of 
certifications and representations for the acquisition of other than 
commercial items using simplified acquisition procedures and is attached 
to the solicitation for offerors to complete and return with their 
offer.
    (i) Use the provision with its Alternate I in solicitations for 
acquisitions that are for, or specify the use of recovered materials 
(see FAR 23.4).
    (ii) Use the provision with its Alternate II in solicitations for 
the acquisition of research, studies, supplies, or services of the type 
normally acquired from higher education institutions (see FAR 26.3).
    (iii) Use the provision with its Alternate III in solicitation which 
include the clause at FAR 52.227-14, Rights in Data--General (see FAR 
27.404(d)(2) and 1827.404(d)).
    (b) The contracting officer may insert a provision substantially the 
same as the provision at 1852.213-71, Evaluation--Other than Commercial 
Items, in solicitations using simplified acquisition procedures for 
other than commercial items when a trade-off source selection process 
will be used, that is, factors in addition to technical acceptability 
and price will be considered. (See FAR 13.106.)

[67 FR 38904, June 6, 2002, as amended at 67 FR 50823, Aug. 6, 2002]



PART 1814_SEALED BIDDING--Table of Contents



                   Subpart 1814.2_Solicitation of Bids

Sec.
1814.201-6 Solicitation provisions.
1814.201-670 NASA solicitation provisions.

                    Subpart 1814.3_Submission of Bids

1814.302 Bid submission.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 47079, Sept. 6, 1996, unless otherwise noted.



                   Subpart 1814.2_Solicitation of Bids



1814.201-6  Solicitation provisions.



1814.201-670  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.214-
70, Caution to Offerors Furnishing Descriptive Literature, in 
invitations for bids. See FAR 52.214-21, Descriptive Literature.
    (b) The contracting officer shall insert the provision at 1852.214-
71, Grouping for Aggregate Award, in invitations for bids, except for 
construction, when

[[Page 188]]

it is in the Government's best interest not to make award for less than 
specified quantities solicited for certain items or groupings of certain 
items. Insert the item numbers and/or descriptions applicable for the 
particular procurement.
    (c) The contracting officer shall insert the provision at 1852.214-
72, Full Quantities, in invitations for bids, except for construction, 
when it is in the Government's best interest not to make award for less 
than the full quantities solicited.
    (d) If a pre-bid conference is planned, the contracting officer 
shall insert the provision at 1852.215-77, Preproposal/Pre-bid 
Conference. See 1815.209-70(a).

[61 FR 47079, Sept. 6, 1996, as amended at 63 FR 9966, Feb. 27, 1998]



                    Subpart 1814.3_Submission of Bids



1814.302  Bid submission. (NASA supplements paragraph (b))

    (b) NASA contracting officers shall not consider telegraphic bids 
communicated by the telephone.



PART 1815_CONTRACTING BY NEGOTIATION--Table of Contents



  Subpart 1815.2_Solicitation and Receipt of Proposals and Information

Sec.
1815.203-72 Risk Management.
1815.207 Handling proposals and information.
1815.207-70 Release of proposal information.
1815.207-71 Appointing non-Government evaluators as special Government 
          employees.
1815.208 Submission, modification, revision, and withdrawal of 
          proposals.
1815.209 Solicitation provisions and contract clauses.
1815.209-70 NASA solicitation provisions.

                     Subpart 1815.3_Source Selection

1815.305-70 Identification of unacceptable proposals.
1815.306 Exchanges with offerors after receipt of proposals.

                     Subpart 1815.4_Contract Pricing

1815.403 Obtaining certified cost or pricing data.
1815.403-170 Waivers of certified cost or pricing data.
1815.404-471 NASA structured approach for profit or fee objective.
1815.404-472 Payment of profit or fee under letter contracts.
1815.407 Special cost or pricing areas.
1815.407-2 Make-or-buy programs.
1815.408 Solicitation provisions and contract clauses.
1815.408-70 NASA solicitation provisions and contract clauses.

 Subpart 1815.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes

1815.504 Award to successful offeror.

                  Subpart 1815.6_Unsolicited Proposals

1815.602 Policy.
1815.604 Agency points of contact.
1815.606 Agency procedures.
1815.606-70 Relationship of unsolicited proposals to NRAs.
1815.609 Limited use of data.
1815.609-70 Limited use of proposals.
1815.670 Foreign proposals.

                        Subpart 1815.70_Ombudsman

1815.7001 NASA Ombudsman Program.
1815.7003 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 63 FR 9954, Feb. 27, 1998, unless otherwise noted.



  Subpart 1815.2_Solicitation and Receipt of Proposals and Information



1815.203-72  Risk management.

    In all RFPs and RFOs for supplies or services for which a technical 
proposal is required, proposal instructions shall require offerors to 
identify and discuss risk factors and issues throughout the proposal 
where they are relevant, and describe their approach to managing these 
risks.

[65 FR 70316, Nov. 22, 2000]



1815.207  Handling proposals and information.



1815.207-70  Release of proposal information.

    (a) NASA personnel participating in any way in the evaluation may 
not reveal any information concerning the

[[Page 189]]

evaluation to anyone not also participating, and then only to the extent 
that the information is required in connection with the evaluation. When 
non-NASA personnel participate, they shall be instructed to observe 
these restrictions.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
procurement officer is the approval authority to disclose proposal 
information outside the Government. If outside evaluators are involved, 
this authorization may be granted only after compliance with FAR 37.2 
and 1837.204, except that the determination of unavailability of 
Government personnel required by FAR 37.2 is not required for disclosure 
of proposal information to JPL employees.
    (2) Proposal information in the following classes of proposals may 
be disclosed with the prior written approval of a NASA official one 
level above the NASA program official responsible for the overall 
conduct of the evaluation. If outside evaluators are involved, the 
determination of unavailability of Government personnel required by FAR 
37.2 is not required for disclosure in these instances.
    (i) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (ii) Unsolicited proposals; and
    (iii) SBIR and STTR proposals.
    (3) If JPL personnel, in evaluating proposal information released to 
them by NASA, require assistance from non-JPL, non-Government 
evaluators, JPL must obtain written approval to release the information 
in accordance with paragraphs (b)(1) and (b)(2) of this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.207-71  Appointing non-Government evaluators as special Government
employees.

    (a) Except as provided in paragraph (c) of this section, non-
Government evaluators, except employees of JPL, shall be appointed as 
special Government employees.
    (b) Appointment as a special Government employee is a separate 
action from the approval required by paragraph 1815.207-70(b) and may be 
processed concurrently. Appointment as a special Government employee 
shall be made by:
    (1) The NASA Headquarters personnel office when the release of 
proposal information is to be made by a NASA Headquarters office; or
    (2) The installation personnel office when the release of proposal 
information is to be made by the installation.
    (c) Non-Government evaluators need not be appointed as special 
Government employees when they evaluate:
    (1) Proposals submitted in response to broad agency announcements 
such as Announcements of Opportunity and NASA Research Announcements;
    (2) Unsolicited proposals; and
    (3) SBIR and STTR proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.208  Submission, modification, revision, and withdrawal of proposals.
(NASA supplements paragraph (b))

    (b) The FAR late proposal criteria do not apply to Announcements of 
Opportunity, NASA Research Announcements, and Small Business Innovative 
Research (SBIR) Phase I and Phase II solicitations, and Small Business 
Technology Transfer (STTR) solicitations. For these solicitations, 
proposals or proposal modifications received from qualified firms after 
the latest date specified for receipt may be considered if a significant 
reduction in cost to the Government is probable or if there are 
significant technical advantages, as compared with proposals previously 
received. In such cases, the project office shall investigate the 
circumstances surrounding the late submission, evaluate its content, and 
submit written recommendations and findings to the selection official or 
a designee as to whether there is an advantage to the Government in 
considering it. The selection official or a designee shall determine 
whether to consider the late submission.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 21764, Apr. 22, 2004]

[[Page 190]]



1815.209  Solicitation provisions and contract clauses.
(NASA supplements paragraph (a))

    (a) The contracting officer shall insert FAR 52.215-1 in all 
competitive negotiated solicitations.



1815.209-70  NASA solicitation provisions.

    (a) The contracting officer shall insert the provision at 1852.215-
77, Preproposal/Pre-bid Conference, in competitive requests for 
proposals and invitations for bids where the Government intends to 
conduct a prepoposal or pre-bid conference. Insert the appropriate 
specific information relating to the conference.
    (b) When it is not in the Government's best interest to make award 
for less than the specified quantities solicited for certain items or 
groupings of items, the contracting officer shall insert the provision 
at 1852.214-71, Grouping for Aggregate Award. See 1814.201-670(b).
    (c) When award will be made only on the full quantities solicited, 
the contracting officer shall insert the provision at 1852.214-72, Full 
Quantities. See 1814.201-670(c).
    (d) The contracting officer shall insert the provision at 1852.215-
81, Proposal Page Limitations, in all competitive requests for 
proposals.

[63 FR 9954, Feb. 27, 1998, as amended at 67 FR 50824, Aug. 6, 2002]



                     Subpart 1815.3_Source Selection



1815.305-70  Identification of unacceptable proposals.

    (a) The contracting officer shall not complete the initial 
evaluation of any proposal when it is determined that the proposal is 
unacceptable because:
    (1) It does not represent a reasonable initial effort to address the 
essential requirements of the RFP or clearly demonstrates that the 
offeror does not understand the requirements;
    (2) In research and development acquisitions, a substantial design 
drawback is evident in the proposal, and sufficient correction or 
improvement to consider the proposal acceptable would require virtually 
an entirely new technical proposal; or
    (3) It contains major eficiencies or omissions or out-of-line costs 
which discussions with the offeror could not reasonably be expected to 
cure.
    (b) The contracting officer shall document the rationale for 
discontinuing the initial evaluation of a proposal in accordance with 
this section.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998]



1815.306  Exchanges with offerors after receipt of proposals.
(NASA supplements paragraphs (c), (d), and (e))

    (c)(2) A total of no more than three proposals shall be a working 
goal in establishing the competitive range. Field installations may 
establish procedures for approval of competitive range determinations 
commensurate with the complexity or dollar value of an acquisition.
    (e)(1) In no case shall the contacting officer relax or amend RFP 
requirements for any offeror without amending the RFP and permitting the 
other offerors an opportunity to propose against the relaxed 
requirements.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44408, Aug. 19, 1998; 69 
FR 21764, Apr. 22, 2004]



                     Subpart 1815.4_Contract Pricing



1815.403  Obtaining certified cost or pricing data.



1815.403-170  Waivers of certified cost or pricing data.

    (a) NASA has waived the requirement for the submission of certified 
cost or pricing data when contracting with the Canadian Commercial 
Corporation (CCC). This waiver applies to the CCC and its 
subcontractors. The CCC will provide assurance of the fairness and 
reasonableness of the proposed price. This assurance should be relied 
on; however, contracting officers shall ensure that the appropriate 
level of data other than certified cost or pricing data is submitted by 
subcontractors to support any required proposal analysis, including a 
technical analysis and a cost realism analysis. The CCC also will 
provide for follow-up audit activity to ensure that any excess profits 
are found and refunded to NASA.

[[Page 191]]

    (b) NASA has waived the requirement for the submission of certified 
cost or pricing data when contracting for Small Business Innovation 
Research (SBIR) program Phase II contracts. However, contracting 
officers shall ensure that the appropriate level of data other than 
certified cost or pricing data is submitted to determine price 
reasonableness and cost realism.

[80 FR 12936, Mar. 12, 2015]



1815.404-471  NASA structured approach for profit or fee objective.



1815.404-472  Payment of profit or fee under letter contracts.

    NASA's policy is to pay profit or fee only on definitized contracts.

[65 FR 12485, Mar. 9, 2000]



1815.407  Special cost or pricing areas.



1815.407-2  Make-or-buy programs. (NASA supplements paragraph (e))

    (e)(1) Make-or-buy programs should not include items or work efforts 
estimated to cost less than $500,000.



1815.408  Solicitation provisions and contract clauses.



1815.408-70  NASA solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 1852.215-
78, Make-or-Buy Program Requirements, in solicitations requiring make-
or-buy programs as provided in FAR 15.407-2(c). This provision shall be 
used in conjunction with the clause at FAR 52.215-9, Changes or 
Additions to Make-or-Buy Program. The contracting officer may add 
additional paragraphs identifying any other information required in 
order to evaluate the program.
    (b) The contracting officer shall insert the clause at 1852.215-79, 
Price Adjustment for ``Make-or-Buy'' Changes, in contracts that include 
FAR 52.215-9 with its Alternate I or II. Insert in the appropriate 
columns the items that will be subject to a reduction in the contract 
value.
    (c) When the solicitation requires the submission of certified cost 
or pricing data, the contracting officer shall include 1852.215-85, 
Proposal Adequacy Checklist, in the solicitation to facilitate 
submission of a thorough, accurate, and complete proposal.

[63 FR 9954, Feb. 27, 1998, as amended at 79 FR 10687, Feb. 26, 2014; 81 
FR 24501, Apr. 26, 2016]



 Subpart 1815.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes



1815.504  Award to successful offeror.

    The reference to notice of award in FAR 15.504 on negotiated 
acquisitions is a generic one. It relates only to the formal 
establishment of a contractual document obligating both the Government 
and the offeror. The notice is effected by the transmittal of a fully 
approved and executed definitive contract document, such as the award 
portion of SF 33, SF 26, SF 1449, or SF 1447, or a letter contract when 
a definitized contract instrument is not available but the urgency of 
the requirement necessitates immediate performance. In this latter 
instance, the procedures for approval and issuance of letter contracts 
shall be followed.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 21764, Apr. 22, 2004]



                  Subpart 1815.6_Unsolicited Proposals



1815.602  Policy.

    Renewal proposals, (i.e., those for the extension or augmentation of 
current contracts) are subject to the same FAR and NFS regulations, 
including the requirements of the Competition in Contracting Act, as are 
proposals for new contracts.

[81 FR 41238, June 24, 2016]



1815.604  Agency points of contact. (NASA supplements paragraph (a))

    (a)(6) Information titled ``Guidance for the Preparation and 
Submission of Unsolicited Proposals'' is available on the Internet at 
http://ec.msfc.nasa.gov/hq/library/unSol-Prop.html. A deviation is 
required for use of any modified or summarized version of the Internet 
information or for alternate means of

[[Page 192]]

general dissemination of unsolicited proposal information.

[63 FR 9954, Feb. 27, 1998, as amended at 63 FR 44409, Aug. 19, 1998; 66 
FR 53546, Oct. 23, 2001; 69 FR 21764, Apr. 22, 2004]



1815.606  Agency procedures. (NASA supplements paragraphs (a) and (b))

    (a) NASA will not accept for formal evaluation unsolicited proposals 
initially submitted to another agency or to the Jet Propulsion 
Laboratory (JPL) without the offeror's express consent.

[63 FR 9954, Feb. 27, 1998, as amended at 69 FR 21764, Apr. 22, 2004]



1815.606-70  Relationship of unsolicited proposals to NRAs.

    An unsolicited proposal for a new effort or a renewal, identified by 
an evaluating office as being within the scope of an open NRA, shall be 
evaluated as a response to that NRA (see 1835.016-71), provided that the 
evaluating office can either:
    (a) State that the proposal is not at a competitive disadvantage, or
    (b) Give the offeror an opportunity to amend the unsolicited 
proposal to ensure compliance with the applicable NRA proposal 
preparation instructions. If these conditions cannot be met, the 
proposal must be evaluated separately.

[63 FR 9954, Feb. 27, 1998, as amended at 64 FR 48561, Sept. 7, 1999]



1815.609  Limited use of data.



1815.609-70  Limited use of proposals.

    Unsolicited proposals shall be evaluated outside the Government only 
to the extent authorized by, and in accordance with, the procedures 
prescribed in, 1815.207-70.



1815.670  Foreign proposals.

    Unsolicited proposals from foreign sources are subject to NPD 
1360.2, Initiation and Development of International Cooperation in Space 
and Aeronautics Programs.

[64 FR 36606, July 7, 1999]



                        Subpart 1815.70_Ombudsman



1815.7001  NASA Ombudsman Program.

    NASA's implementation of an ombudsman program is in NPR 5101.33, 
Procurement Advocacy Programs.

[63 FR 9954, Feb. 27, 1998, as amended at 65 FR 58931, Oct. 3, 2000; 69 
FR 63459, Nov. 2, 2004]



1815.7003  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the one at 1852.215-84, Ombudsman, in all solicitations (including 
draft solicitations) and contracts. Use the clause with its Alternate I 
when a task or delivery order contract is contemplated.

[65 FR 38777, June 22, 2000]



PART 1816_TYPES OF CONTRACTS--Table of Contents



1816.001 Definitions.

                  Subpart 1816.2_Fixed-Price Contracts

Sec.
1816.202 Firm-fixed-price contracts.
1816.202-70 NASA contract clause.

               Subpart 1816.3_Cost-Reimbursement Contracts

1816.303-70 Cost-sharing contracts.
1816.307 Contract clauses.
1816.307-70 NASA contract clauses.

                   Subpart 1816.4_Incentive Contracts

1816.402 Application of predetermined, formula-type incentives. (NASA 
          paragraphs 1,2 and 3).
1816.402-2 Performance incentives.
1816.402-270 NASA technical performance incentives.
1816.404 Fixed-price contracts with award fees.
1816.405 Cost-reimbursement incentive contracts.
1816.405-2 Cost-plus-award-fee (CPAF) contracts.
1816.405-270 CPAF contracts.
1816.405-271 Base fee.
1816.405-272 Award fee evaluation periods.
1816.405-273 Award fee evaluations.
1816.405-274 Award fee evaluation factors.
1816.405-275 Award fee evaluation rating.
1816.405-276 Award fee payments and limitations.
1816.405-277 Award term.
1816.406 Contract clauses.
1816.406-70 NASA contract clauses.

[[Page 193]]

              Subpart 1816.5_Indefinite-Delivery Contracts

1816.506-70 NASA contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 3478, Jan. 23, 1997, unless otherwise noted.



1816.001  Definitions.

    As used in this part--
    Earned award fee means the payment of the full amount of an award 
fee evaluation period's score/rating.
    Term-determining official means the designated Agency official who 
reviews the recommendations of the Award-Term Board in determining 
whether the contractor is eligible for an award term.
    Unearned award fee means the difference between the available award 
fee pool amount for a given award fee evaluation period less the 
contractor's earned award fee amount for that same evaluation period.

[81 FR 50366, Aug. 1, 2016, as amended at 82 FR 34418, July 25, 2017]



                  Subpart 1816.2_Fixed-Price Contracts



1816.202  Firm-fixed-price contracts.



1816.202-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.216-78, 
Firm-Fixed-Price, in firm-fixed-price solicitations and contracts. 
Insert the appropriate amount in the resulting contract.



               Subpart 1816.3_Cost-Reimbursement Contracts



1816.303-70  Cost-sharing contracts.

    (a) Cost-sharing with for-profit organizations. (1) Cost sharing by 
for-profit organizations is mandatory in any contract for basic or 
applied research resulting from an unsolicited proposal, and may be 
accepted in any other contract when offered by the proposing 
organization. The requirement for cost-sharing may be waived when the 
contracting officer determines in writing that the contractor has no 
commercial, production, education, or service activities that would 
benefit from the results of the research, and the contractor has no 
means of recovering its shared costs on such projects.
    (2) The contractor's cost-sharing may be any percentage of the 
project cost. In determining the amount of cost-sharing, the contracting 
officer shall consider the relative benefits to the contractor and the 
Government. Factors that should be considered include--
    (i) The potential for the contractor to recover its contribution 
from non-Federal sources;
    (ii) The extent to which the particular area of research requires 
special stimulus in the national interest; and
    (iii) The extent to which the research effort or result is likely to 
enhance the contractor's capability, expertise, or competitive 
advantage.
    (b) Cost-sharing with not-for-profit organizations. (1) Costs to 
perform research stemming from an unsolicited proposal by universities 
and other educational or not-for-profit institutions are usually fully 
reimbursed. When the contracting officer determines that there is a 
potential for significant benefit to the institution cost-sharing will 
be considered.
    (2) The contracting officer will normally limit the institution's 
share to no more than 10 percent of the project's cost.
    (c) Implementation. Cost-sharing shall be stated as a minimum 
percentage of the total allowable costs of the project. The contractor's 
contributed costs may not be charged to the Government under any other 
contract or grant, including allocation to other contracts and grants as 
part of an independent research and development program.



1816.307  Contract clauses. (NASA supplements paragraphs (a), (b), (d),
and (g)).

    (a)(1) In paragraph (h)(2)(ii)(B) of the Allowable Cost and Payment 
clause at FAR 52.216-7, the period of years may be increased to 
correspond with any statutory period of limitation applicable to claims 
of third parties against the contractor; provided, that a corresponding 
increase is made in the period for retention of records required in 
paragraph (f) of the clause at FAR

[[Page 194]]

52.215-2, Audit and Records--Negotiation.

[62 FR 3478, Jan. 23, 1997, as amended at 69 FR 21764, Apr. 22, 2004; 81 
FR 50366, Aug. 1, 2016]



1816.307-70  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.216-73, 
Estimated Cost and Cost Sharing, in each contract in which costs are 
shared by the contractor pursuant to 1816.303-70.
    (b) The contracting officer shall insert the clause substantially as 
stated at 1852.216-74, Estimated Cost and Fixed Fee, in cost-plus-fixed-
fee contracts.
    (c) The contracting officer may insert the clause at 1852.216-75, 
Payment of Fixed Fee, in cost-plus-fixed-fee contracts.
    (d) The contracting officer may insert the clause at 1852.216-81, 
Estimated Cost, in cost-no-fee contracts that are not cost sharing or 
facilities contracts.
    (e) [Reserved]
    (f) When FAR clause 52.216-7, Allowable Cost and Payment, is 
included in the contract, as prescribed at FAR 16.307(a), the 
contracting officer should include the clause at 1852.216-89, Assignment 
and Release Forms.
    (g) As required by section 827 of the National Defense Authorization 
Act for Fiscal Year 2013 (Pub. L. 112-239), use the clause at 1852.216-
90, Allowability of Costs Incurred in Connection With a Whistleblower 
Proceeding--
    (1) In task orders entered pursuant to contracts awarded before 
September 30, 2013, that include the clause at FAR 52.216-7, Allowable 
Cost and Payment; and
    (2) In contracts awarded before September 30, 2013, that--
    (i) Include the clause at FAR 52.216-7, Allowable Cost and Payment; 
and
    (ii) Are modified to include the clause at 1852.203-71, Requirement 
to Inform Employees of Whistleblower Rights, dated June 2013 or later.

[62 FR 3478, Jan. 23, 1997, as amended at 79 FR 43961, July 29, 2014; 80 
FR 12937, Mar. 12, 2015; 81 FR 50366, Aug. 1, 2016; 81 FR 63145, Sept. 
14, 2016]



                   Subpart 1816.4_Incentive Contracts



1816.402  Application of predetermined, formula-type incentives.
(NASA paragraphs 1, 2 and 3).

    When considering the use of a quality, performance, or schedule 
incentive, the following guidance applies:
    (1) A positive incentive is generally not appropriate unless--
    (i) Performance above the target (or minimum, if there are no 
negative incentives) level is of significant value to the Government;
    (ii) The value of the higher level of performance is worth the 
additional cost/fee;
    (iii) The attainment of the higher level of performance is clearly 
within the control of the contractor; and
    (iv) An upper limit is identified, beyond which no further incentive 
is earned.
    (2) A negative incentive is generally not appropriate unless--
    (i) A target level of performance can be established, which the 
contractor can reasonably be expected to reach with a diligent effort, 
but a lower level of performance is also minimally acceptable;
    (ii) The value of the negative incentive is commensurate with the 
lower level of performance and any additional administrative costs; and
    (iii) Factors likely to prevent attainment of the target level of 
performance are clearly within the control of the contractor.
    (3) When a negative incentive is used, the contract must indicate a 
level below which performance is not acceptable.

[63 FR 12997, Mar. 17, 1998, as amended at 69 FR 21764, Apr. 22, 2004]



1816.402-2  Performance incentives.



1816.402-270  NASA technical performance incentives.

    (a) Pursuant to the guidelines in 1816.402, NASA has determined that 
a performance incentive shall be included in all contracts that are 
based on performance-oriented documents

[[Page 195]]

(see FAR 11.101(a)), except those awarded under the commercial item 
procedures of FAR Part 12, where the primary deliverable(s) is (are) 
hardware with a total value (including options) greater than $25 
million. Any exception to this requirement shall be approved in writing 
by the head of the contracting activity. Performance incentives may be 
included in supply and service contracts valued under $25 million, 
acquired under procedures other than Part 12, at the discretion of the 
contracting officer upon consideration of the guidelines in 1816.402. 
Performance incentives, which are objective and measure performance 
after delivery and acceptance, are separate from other incentives, such 
as cost or delivery incentives.
    (b) When a performance incentive is used, it shall be structured to 
be both positive and negative based on performance after acceptance, 
unless the contract type requires complete contractor liability for 
product performance (e.g., fixed price). In this latter case, a negative 
incentive is not required. In structuring the incentives, the contract 
shall establish a standard level of performance based on the salient 
performance requirement. This standard performance level is normally the 
contract's target level of performance. No performance incentive amount 
is earned at this standard performance level. Discrete units of 
measurement based on the same performance parameter shall be identified 
for performance above and, when a negative incentive is used, below the 
standard. Specific incentive amounts shall be associated with each 
performance level from maximum beneficial performance (maximum positive 
incentive) to, when a negative incentive is included, minimal beneficial 
performance or total failure (maximum negative incentive). The 
relationship between any given incentive, either positive or negative, 
and its associated unit of measurement should reflect the value to the 
Government of that level of performance. The contractor should not be 
rewarded for above-standard performance levels that are of no benefit to 
the Government.
    (c) The final calculation of the performance incentive shall be done 
when performance, as defined in the contract, ceases or when the maximum 
positive incentive is reached. When performance ceases below the 
standard established in the contract and a negative incentive is 
included, the Government shall calculate the amount due and the 
contractor shall pay the Government that amount. Once performance 
exceeds the standard, the contractor may request payment of the 
incentive amount associated with a given level of performance, provided 
that such payments shall not be more frequent than monthly. When 
performance ceases above the standard level of performance, or when the 
maximum positive incentive is reached, the Government shall calculate 
the final performance incentive earned and unpaid and promptly remit it 
to the contractor.
    (d) When the deliverable supply or service lends itself to multiple, 
meaningful measures of performance, multiple performance incentives may 
be established. When the contract requires the sequential delivery of 
several items (e.g., multiple spacecraft), separate performance 
incentive structures may be established to parallel the sequential 
delivery and use of the deliverables.
    (e) In determining the value of the maximum performance incentives 
available, the contracting officer shall follow the following rules:
    (1) For a CPFF contract, the sum of the maximum positive performance 
incentive and fixed fee shall not exceed the limitations in FAR 15.404-
4(c)(4)(i).
    (2) For an award fee contract.
    (i) The individual values of the maximum positive performance 
incentive and the total potential award fee (including any base fee) 
shall each be at least one-third of the total potential contract fee. 
The remaining one-third of the total potential contract fee may be 
divided between award fee and the maximum performance incentive at the 
discretion of the contracting officer.
    (ii) The maximum negative performance incentive for research and 
development hardware (e.g., the first and second units) shall be equal 
in amount to the total earned award fee (including any base fee). The 
maximum negative

[[Page 196]]

performance incentives for production hardware (e.g., the third and all 
subsequent units of any hardware items) shall be equal in amount to the 
total potential award fee (including any base fee). Where one contract 
contains both cases described above, any base fee shall be allocated 
reasonably among the items.
    (3) For cost reimbursement contracts other than award fee contracts, 
the maximum negative performance incentives shall not exceed the total 
earned fee under the contract.

[62 FR 3478, Jan. 23, 1997, as amended at 62 FR 58687, Oct. 30, 1997; 63 
FR 9965, Feb. 27, 1998; 63 FR 12997, Mar. 17, 1998; 63 FR 28285, May 22, 
1998; 68 FR 23424, May 2, 2003; 69 FR 21764, Apr. 22, 2004; 80 FR 12937, 
Mar. 12, 2015]



1816.404  Fixed-price contracts with award fees.

    Section 1816.405-2 applies to the use of FPAF contracts as if they 
were CPAF contracts. However, neither base fee (see 1816.405-271) nor 
evaluation of cost control (see 1816.405-274) apply to FPAF contracts.

[62 FR 58687, Oct. 30, 1997]



1816.405  Cost-reimbursement incentive contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



1816.405-2  Cost-plus-award-fee (CPAF) contracts.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997]



1816.405-270  CPAF contracts.

    (a) In addition to the items identified in FAR 16.401(e)(1), D&Fs 
will include a discussion of the other types of contracts considered and 
shall indicate why an award fee incentive is the appropriate choice. 
Award fee incentives should not be used on contracts with a total 
estimated cost and fee less than $2 million per year. Use of award fee 
incentive for lower-valued acquisitions may be authorized in exceptional 
situations such as contract requirements having direct health or safety 
impacts, where the judgmental assessment of the quality of contractor 
performance is critical.
    (b) Except as provided in paragraph (d) of this section, an award 
fee incentive may be used in conjunction with other contract types for 
aspects of performance that cannot be objectively assessed. In such 
cases, the cost incentive is based on objective formulas inherent in the 
other contract types (e.g., FPI, CPIF), and the award fee provision 
should not separately incentivize cost performance.
    (c) Award fee incentives shall not be used with a cost-plus-fixed-
fee (CPFF) contract.

[76 FR 6697, Feb. 8, 2011, as amended at 80 FR 12937, Mar. 12, 2015]



1816.405-271  Base fee.

    (a) A base fee shall not be used on CPAF contracts for which the 
periodic award fee evaluations are final (1816.405-273(a)). In these 
circumstances, contractor performance during any award fee period is 
independent of and has no effect on subsequent performance periods or 
the final results at contract completion. For other contracts, such as 
those for hardware or software development, the procurement officer may 
authorize the use of a base fee not to exceed 3 percent. Base fee shall 
not be used when an award fee incentive is used in conjunction with 
another contract type (e.g., CPIF/AF).
    (b) When a base fee is authorized for use in a CPAF contract, it 
shall be paid only if the final award fee evaluation is ``satisfactory'' 
or better. (See 1816.405-273 and 1816.405-275) Pending final evaluation, 
base fee may be paid during the life of the contract at defined 
intervals on a provisional basis. If the final award fee evaluation is 
``unsatisfactory'', all provisional base fee payments shall be refunded 
to the Government.

[76 FR 6697, Feb. 8, 2011]



1816.405-272  Award fee evaluation periods.

    (a) Award fee evaluation periods, including those for interim 
evaluations, should be at least 6 months in length. When appropriate, 
the procurement officer may authorize shorter evaluation periods after 
ensuring that the additional administrative costs associated

[[Page 197]]

with the shorter periods are offset by benefits accruing to the 
Government. Where practicable, such as developmental contracts with 
defined performance milestones (e.g., Preliminary Design Review, 
Critical Design Review, initial system test), establishing evaluation 
periods at conclusion of the milestones rather than calendar dates, or 
in combination with calendar dates should be considered. In no case 
shall an evaluation period be longer than 12 months.
    (b) A portion of the total available award fee contract shall be 
allocated to each of the evaluation periods. This allocation may result 
in an equal or unequal distribution of fee among the periods. The 
contracting officer shall consider the nature of each contract and the 
incentive effects of fee distribution in determining the appropriate 
allocation structure.

[62 FR 3478, Jan. 23, 1997. Redesignated at 62 FR 36706, July 9, 1997, 
as amended at 63 FR 13133, Mar. 18, 1998; 80 FR 12937, Mar. 12, 2015]



1816.405-273  Award fee evaluations.

    (a) Service contracts. On contracts where the contract deliverable 
is the performance of a service over any given time period, contractor 
performance is definitively measurable within each evaluation period. In 
these cases, all evaluations are final, and the contractor keeps the fee 
earned in any period regardless of the evaluations of subsequent 
periods. Unearned award fee in any given period in a service contract is 
lost and shall not be carried forward, or ``rolled-over,'' into 
subsequent periods.
    (b) End item contracts. On contracts, such as those for end item 
deliverables, where the true quality of contractor performance cannot be 
measured until the end of the contract, only the last evaluation is 
final. At that point, the total contract award fee pool is available, 
and the contractor's total performance is evaluated against the award 
fee plan to determine total earned award fee. In addition to the final 
evaluation, interim evaluations are done to monitor performance prior to 
contract completion, provide feedback to the contractor on the 
Government's assessment of the quality of its performance, and establish 
the basis for making interim award fee payments (see 1816.405-276(a)). 
These interim evaluations and associated interim award fee payments are 
superseded by the fee determination made in the final evaluation at 
contract completion. However, if the final award fee adjectival rating 
is higher or lower than the average adjectival rating of all the interim 
award fee periods, or if the final award fee score is eight base 
percentage points higher or lower than the average award fee score of 
all interim award fee periods (e.g. 80% to 88%), then the Head of the 
Contracting Activity (HCA) or the Deputy Chief Acquisition Officer (if 
the HCA is the Fee Determination Official) shall review and concur in 
the final award fee determination. The Government will then pay the 
contractor, or the contractor will refund to the Government, the 
difference between the final award fee determination and the cumulative 
interim fee payments.
    (c) Control of evaluations. Interim and final evaluations may be 
used to provide past performance information during the source selection 
process in future acquisitions and should be marked and controlled as 
``Source Selection Information--see FAR 3.104''. See FAR 42.1503(h) 
regarding the requirements for releasing Source Selection Information 
included in the Contractor Performance Assessment Reporting System 
(CPARS).

[63 FR 13133, Mar. 18, 1998, as amended at 80 FR 12937, Mar. 12, 2015; 
81 FR 50366, Aug. 1, 2016]



1816.405-274  Award fee evaluation factors.

    (a) Explicit evaluation factors shall be established for each award 
fee period. Factors shall be linked to acquisition objectives which 
shall be defined in terms of contract cost, schedule, and technical 
performance. If used, subfactors should be limited to the minimum 
necessary to ensure a thorough evaluation and an effective incentive.
    (b) Evaluation factors will be developed by the contracting officer 
based upon the characteristics of an individual procurement. Cost 
control, schedule, and technical performance considerations shall be 
included as

[[Page 198]]

evaluation factors in all CPAF contracts, as applicable. When explicit 
evaluation factor weightings are used, cost control shall be no less 
than 25 percent of the total weighted evaluation factors. The 
predominant consideration of the cost control evaluation should be a 
measurement of the contractor's performance against the negotiated 
estimated cost of the contract. This estimated cost may include the 
value of undefinitized change orders when appropriate.
    (c)(1) The technical factor must include consideration of risk 
management (including mission success, safety, security, health, export 
control, and damage to the environment, as appropriate) unless waived at 
a level above the contracting officer, with the concurrence of the 
project manager. The rationale for any waiver shall be documented in the 
contract file. When safety, export control, or security are considered 
under the technical factor, the award fee plan shall allow the following 
fee determinations, regardless of contractor performance in other 
evaluation factors, when there is a major breach of safety or security.
    (i) For evaluation of service contracts under 1816.405-273(a), an 
overall fee rating of unsatisfactory for any evaluation period in which 
there is a major breach of safety or security.
    (ii) For evaluation of end item contracts under 1816.405-273(b), an 
overall fee rating of unsatisfactory for any interim evaluation period 
in which there is a major breach of safety or security. To ensure that 
the final award fee evaluation at contract completion reflects any major 
breach of safety or security, in an interim period, the overall award 
fee pool shall be reduced by the amount of the fee available for the 
period in which the major breach occurred if an unsatisfactory fee 
rating was assigned because of a major breach of safety or security.
    (2) A major breach of safety must be related directly to the work on 
the contract. A major breach of safety is an act or omission of the 
Contractor that consists of an accident, incident, or exposure resulting 
in a fatality or mission failure; or in damage to equipment or property 
equal to or greater than $1 million; or in any ``willful'' or ``repeat'' 
violation cited by the Occupational Safety and Health Administration 
(OSHA) or by a state agency operating under an OSHA approved plan.
    (3) A major breach of security may occur on or off Government 
installations, but must be directly related to the work on the contract. 
A major breach of security is an act or omission by the contractor that 
results in compromise of classified information, illegal technology 
transfer, workplace violence resulting in criminal conviction, sabotage, 
compromise or denial of information technology services, equipment or 
property damage from vandalism greater than $250,000, or theft greater 
than $250,000.
    (4) The Assistant Administrator for Procurement shall be notified 
prior to the determination of an unsatisfactory award fee rating because 
of a major breach of safety or security.
    (d) In rare circumstances, contract costs may increase for reasons 
outside the contractor's control and for which the contractor is not 
entitled to an equitable adjustment. One example is a weather-related 
launch delay on a launch support contract. The Government shall take 
such situations into consideration when evaluating contractor cost 
control.
    (e) Emphasis on cost control should be balanced against other 
performance requirement objectives. The contractor should not be 
incentivized to pursue cost control to the point that overall 
performance is significantly degraded. For example, incentivizing an 
underrun that results in direct negative impacts on technical 
performance, safety, or other critical contract objectives is both 
undesirable and counterproductive. Therefore, evaluation of cost control 
shall conform to the following guidelines:
    (1) Normally, the contractor should be given an unsatisfactory 
rating for cost control when there is a significant overrun within its 
control. However, the contractor may receive a satisfactory or higher 
rating for cost control if the overrun is insignificant. Award fee 
ratings should decrease sharply as the size of the overrun increases. In 
any evaluation of contractor overrun performance, the Government shall 
consider the reasons for the overrun and

[[Page 199]]

assess the extent and effectiveness of the contractor's efforts to 
control or mitigate the overrun.
    (2) The contractor should normally be rewarded for an underrun 
within its control, up to the maximum award fee rating allocated for 
cost control, provided the adjectival rating for all other award fee 
evaluation factors is very good or higher (see FAR 16.401(e)(iv)).
    (3) The contractor should be rewarded for meeting the estimated cost 
of the contract, but not to the maximum rating allocated for cost 
control, to the degree that the contractor has prudently managed costs 
while meeting contract requirements. No award fee shall be given in this 
circumstance unless the average adjectival rating for all other award 
fee evaluation factors is satisfactory or higher.
    (f) When an AF arrangement is used in conjunction with another 
contract type, the award fee's cost control factor will only apply to a 
subjective assessment of the contractor's efforts to control costs and 
not the actual cost outcome incentivized under the basic contract type 
(e.g. CPIF, FPIF).
    (g)(1) The contractor's performance against the subcontracting plan 
incorporated in the contract shall be evaluated. Emphasis may be placed 
on the contractor's accomplishment of its goals for subcontracting with 
small business, small disadvantaged business, HUBZone small business, 
women-owned small business, veteran-owned small business, service-
disabled veteran-owned small business concerns, and Historically Black 
Colleges and Universities--Minority Institutions (HBCU/MIs). The 
evaluation should consider both goals as a percentage of subcontracting 
dollars as well as a percentage of the total contract value.
    (2) The contractor's achievements in subcontracting high technology 
efforts as well as the contractor's performance under the Mentor-
Prot[eacute]g[eacute] Program, if applicable, may also be evaluated.
    (3) The evaluation weight given to the contractor's performance 
against the considerations in paragraphs (g)(1) and (2) of this section 
shall be 10 percent of available award fee and shall be separate from 
all other factors.
    (h) When contract changes are anticipated, the contractor's 
responsiveness to requests for change proposals should be evaluated. 
This evaluation should include the contractor's submission of timely, 
complete proposals and cooperation in negotiating the change.
    (i) Only the award fee performance evaluation factors set forth in 
the performance evaluation plan shall be used to determine award fee 
scores.
    (j) The Government may unilaterally modify the applicable award fee 
performance evaluation factors and performance evaluation areas prior to 
the start of an evaluation period. The contracting officer shall notify 
the contractor in writing of any such changes 30 days prior to the start 
of the relevant evaluation period.

[76 FR 6697, Feb. 8, 2011, as amended at ; 80 FR 12937, Mar. 12, 2015]



1816.405-275  Award fee evaluation rating.

    (a) All award fee contracts shall utilize the adjectival rating 
categories and associated descriptions as well as the award fee pool 
available to be earned percentages for each adjectival rating category 
contained in FAR 16.401(e)(3)(iv). Contracting officers may supplement 
these descriptions with more specifics relative to their procurement but 
they cannot alter or delete the FAR adjectival rating descriptions.
    (b) The following numerical scoring system shall be used in 
conjunction with the FAR adjectival rating categories and associated 
descriptions (see FAR 16401(e)(3)(iv)).
    (1) Excellent (100-91)
    (2) Very good (90-76)
    (3) Good (75-51)
    (4) Satisfactory (50)
    (5) Unsatisfactory (less than 50) No award fee shall be paid for an 
unsatisfactory rating.
    (c) As a benchmark for evaluation, in order to be rated 
``Excellent'' overall, the contractor would typically be under cost, on 
or ahead of schedule, and providing outstanding technical performance.
    (d) A weighted scoring system appropriate for the circumstances of 
the individual contract requirement should be developed. In this system, 
each evaluation factor (e.g., technical, schedule,

[[Page 200]]

cost control) is assigned a specific percentage weighting with the 
cumulative weightings of all factors totaling 100. During the award fee 
evaluation, each factor is scored from 0-100 according to the ratings 
defined in 1816.405-275(b). The numerical score for each factor is then 
multiplied by the weighting for that factor to determine the weighted 
score. For example, if the technical factor has a weighting of 60 
percent and the numerical score for that factor is 80, the weighted 
technical score is 48 (80 x 60 percent). The weighted scores for each 
evaluation factor are then added to determine the total award fee score.

[76 FR 6698, Feb. 8, 2011, as amended at 80 FR 12937, Mar. 12, 2015]



1816.405-276  Award fee payments and limitations.

    (a) Interim award fee payments. The amount of an interim award fee 
payment (see 1816.405-273(b)) is limited to the lesser of the interim 
evaluation score or 80 percent of the fee allocated to that interim 
period less any provisional payments (see paragraph (b) of this 
subsection) made during the period.
    (b) Provisional award fee payments. Provisional award fee payments 
are payments made within evaluation periods prior to an interim or final 
evaluation for that period. Provisional payments may be included in the 
contract and should be negotiated on a case-by-case basis. For a service 
contract, the total amount of award fee available in an evaluation 
period that may be provisionally paid is the lesser of a percentage 
stipulated in the contract (but not exceeding 80 percent) or the prior 
period's evaluation score. For an end item contract, the total amount of 
provisional payments in a period is limited to a percentage not to 
exceed 80 percent of the prior interim period's evaluation score, except 
for the first evaluation period which is limited to 80 percent of the 
available award fee for that evaluation period.
    (c) Fee payment. The Fee Determination Official's rating for both 
interim and final evaluations will be provided to the contractor within 
45 calendar days of the end of the period being evaluated. Any fee, 
interim or final, due the contractor will be paid no later than 60 
calendar days after the end of the period being evaluated.

[63 FR 13134, Mar. 18, 1998, as amended at 81 FR 50366, Aug. 1, 2016]



1816.405-277  Award term.

    (a) An award term enables a contractor to become eligible for 
additional periods of performance or ordering periods under a service 
contract (as defined in FAR 37.101) by achieving and sustaining the 
prescribed performance levels under the contract. It incentivizes the 
contractor for maintaining superior performance by providing an 
opportunity for extensions of the contract term.
    (b) Award terms are best suited for acquisitions where a longer term 
relationship (generally more than five years) between the Government and 
a contractor would provide significant benefits to both. Motivating 
excellent performance, fostering contractor capital investment, and 
increasing the desirability of the award, thus potentially increasing 
competition, are benefits that may justify the use of award terms.
    (c) While the administrative burden and cost of more frequent 
procurements to both the Government and potential offerors should be 
considered when determining whether to use award terms, this decision 
must be weighed against market stability, the potential changes and 
advancements in technology, and flexibility to change direction with 
mission changes and associated frequent procurements.
    (d) Award terms may be used in conjunction with contract options 
under FAR 17.2. Award terms are similar to contract options in that they 
are conditioned on the Government's continuing need for the contract and 
the availability of funds. However, FAR 17.207(c)(7) states the 
contracting officer must determine that the contractor's performance has 
been acceptable, e.g., received satisfactory ratings. In contrast, to 
become eligible for an award term, the contractor must maintain a level 
of performance above acceptable as specified in the Award Term Plan (see 
1816.405-277(i)). In contracts with both option periods and award terms, 
the award term period of

[[Page 201]]

performance or ordering period shall begin after completion of any 
option period of performance or ordering period.
    (e) Contracts with award terms shall include a base period of 
performance or ordering period and may include a designated number of 
option periods during which the Government will observe and evaluate the 
contractor's performance allowing the contractor to earn an award term. 
Additionally, as specified in the Award Term Plan, the contractor may 
also be evaluated for additional award terms during performance of an 
earned award term. If the contractor meets or exceeds the performance 
requirements, there is an on-going need for and desire to continue the 
contract, funds are available, and the contractor is not listed in the 
System for Award Management Exclusions, then the contractor may be 
eligible for contract extension for the period of the award term.
    (f) Contracts with award terms shall comply with FAR and NFS 
restrictions on the overall contract length, such as the 5-year period 
of performance limitation found at NFS 1817.204.
    (g) Award terms may only be used in acquisitions for services 
exceeding $20 million dollars. Use of award terms for lower-valued 
acquisitions may be authorized in exceptional situations such as 
contract requirements having direct health or safety impacts, where the 
judgmental assessment of the quality of contractor performance is 
critical.
    (h) Consistent with the Competition in Contracting Act and general 
procurement principles, the potential award term periods in a 
procurement must be priced, evaluated, and considered in the initial 
contract selection process in order to be valid.
    (i) All contracts including award terms shall be supported by an 
Award Term Plan that establishes criteria for earning an award term and 
the methodology and schedule for evaluating contractor performance. A 
copy of the Award Term Plan shall be included in the contract. The 
contracting officer may unilaterally revise the Award Term Plan. Award 
Term Plans shall--
    (1) Identify the officials to include Term-Determining Official 
involved in the award term evaluation and their function;
    (2) Identify and describe each evaluation factor, any subfactors, 
related performance standards, adjectival ratings, and numerical ranges 
or weights to be used. The contracting officer should follow the 
guidance at 1816.405-274 in establishing award term evaluation factors 
and 1816.405-275 in establishing adjectival rating categories, 
associated descriptions, numerical scoring system, and weighted scoring 
system;
    (3) Specify the annual overall rating required for the contractor to 
be eligible for an award term that reflects a level of performance above 
acceptable and the number of award terms the contractor may qualify for 
based on the rating score;
    (4) Identify the evaluation period(s) and the evaluation schedule to 
be conducted at stated intervals during the contract period of 
performance or ordering period so that the contractor will periodically 
be informed of the quality of its performance and the areas in which 
improvement is expected (e.g., six months, nine months, twelve months, 
or at other specific milestones), and when the decision points are for 
the determination that the contractor is eligible for an award term; and
    (5) Identify the contract's base period of performance or ordering 
period, any option period(s), and total award-term periods(s). Award 
term periods shall not exceed one year.
    (j)(1) The Government has the unilateral right not to grant or to 
cancel award term periods and the associated Award Term Plans if--
    (i) The contractor has failed to achieve the required performance 
measures for the corresponding evaluation period;
    (ii) After earning an award term, the contractor fails to earn an 
award term in any succeeding year of contract performance, the 
contracting officer may cancel any award terms that the contractor has 
earned, but that have not begun;
    (iii) The contracting officer notifies the contractor that the 
Government no longer has a need for the award term period before the 
time an award term period is to begin;

[[Page 202]]

    (iv) The contractor represented that it was a small business concern 
prior to award of the contract, the contract was set-aside for small 
businesses, and the contractor rerepresents in accordance with FAR 
clause 52.219-28 Post-Award Small Business Program Rerepresentation, 
that it is no longer a small business; or
    (v) The contracting officer notifies the contractor that funds are 
not available for the award term.
    (2) When an award term period is not granted or cancelled, any--
    (i) Prior award term periods for which the contractor remains 
otherwise eligible are unaffected.
    (ii) Subsequent award term periods are also cancelled.
    (k) Cancellation of an award term period that has not yet commenced 
for any of the reasons set forth in paragraph (j) of this section shall 
not be considered either a termination for convenience or termination 
for default, and shall not entitle the contractor to any termination 
settlement or any other compensation. If the award term is cancelled, a 
unilateral modification will cite the clause as the authority.

[82 FR 34418, July 25, 2017]



1816.406  Contract clauses.



1816.406-70  NASA contract clauses.

    (a) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-76, Award Fee for Service Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverable is the performance of a service.
    (b) As authorized by FAR 16.406(e), the contracting officer shall 
insert the clause at 1852.216-77, Award Fee for End Item Contracts, in 
solicitations and contracts when an award fee contract is contemplated 
and the contract deliverables are hardware or other end items for which 
total contractor performance cannot be measured until the end of the 
contract. When the clause is used in a fixed-price award fee contract, 
it shall be modified by deleting references to base fee in paragraphs 
(a), and by deleting paragraph (c)(1), the last sentence of (c)(4), and 
the first sentence of (c)(5).
    (c) The contracting officer may insert a clause substantially as 
stated at 1852.216-83, Fixed Price Incentive, in fixed-price-incentive 
solicitations and contracts utilizing firm or successive targets. For 
items subject to incentive price revision, identify the target cost, 
target profit, target price, and ceiling price for each item.
    (d) The contracting officer shall insert the clause at 1852.216-84, 
Estimated Cost and Incentive Fee, in cost-plus-incentive-fee 
solicitations and contracts.
    (e) The contracting officer may insert the clause at 1852.216-85, 
Estimated Cost and Award Fee, in award fee solicitations and contracts. 
When the contract includes performance incentives, use Alternate I. When 
the clause is used in a fixed-price award fee contract, it shall be 
modified to delete references to base fee and to reflect the contract 
type.
    (f) As provided at 1816.402-270, the contracting officer shall 
insert a clause substantially as stated at 1852.216-88, Performance 
Incentive, when the primary deliverable(s) is (are) hardware and total 
estimated cost and fee is greater than $25 million. A clause 
substantially as stated at 1852.216-88 may be included in lower dollar 
value supply or service contracts at the discretion of the contracting 
officer.
    (g) Insert the clause at 1852.216-72, Award Term in solicitations 
and contracts for services exceeding $20 million when award terms are 
contemplated.

[62 FR 3478, Jan. 23, 1997. Redesignated and amended at 62 FR 36706, 
36707, July 9, 1997; 62 FR 58687, Oct. 30, 1997; 63 FR 13134, Mar. 18, 
1998; 80 FR 12937, Mar. 12, 2015; 81 FR 71638, Oct. 18, 2016; 82 FR 
34419, July 25, 2017]



              Subpart 1816.5_Indefinite-Delivery Contracts



1816.506-70  NASA contract clause.

    Insert the clause at 1852.216-80, Task Ordering Procedure, in 
solicitations and contracts when an indefinite-delivery, task order 
contract is contemplated. The clause is applicable to both fixed-price 
and cost-reimbursement type contracts. If the contract does not require 
533M reporting (See

[[Page 203]]

NPR 9501.2, NASA Contractor Financial Management Reporting System), use 
the clause with its Alternate I.

[62 FR 3478, Jan. 23, 1997, as amended at 64 FR 51079, Sept. 21, 1999; 
69 FR 63459, Nov. 2, 2004]



PART 1817_SPECIAL CONTRACTING METHODS--Table of Contents



                         Subpart 1817.2_Options

Sec.
1817.208 Solicitation provisions and contract clauses.

                   Subpart 1817.70_Phased Acquisition

1817.7000 Definitions.
1817.7002 Contract clauses.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55753, Oct. 29, 1996, unless otherwise noted.



                         Subpart 1817.2_Options



1817.208  Solicitation provisions and contract clauses.
(NASA supplements paragraph (c))

    (c)(3) The contracting officer shall insert a provision 
substantially the same as FAR 52.217-5 in cost reimbursement contracts 
when the other conditions of FAR 17.208(c) are met.



                   Subpart 1817.70_Phased Acquisition



1817.7000  Definitions.

    (a) Down-selection. In a phased acquisition, the process of 
selecting contractors for later phases from among the preceding phase 
contractors.
    (b) Phased Acquisition. An incremental acquisition implementation 
comprised of several distinct phases where the realization of program/
project objectives requires a planned, sequential acquisition of each 
phase. The phases may be acquired separately, in combination, or through 
a down-selection strategy.
    (c) Progressive Competition. A type of down-selection strategy for a 
phased acquisition. In this method, a single solicitation is issued for 
all phases of the program. The initial phase contracts are awarded, and 
the contractors for subsequent phases are expected to be chosen through 
a down-selection from among the preceding phase contractors. In each 
phase, progressively fewer contracts are awarded until a single 
contractor is chosen for the final phase. Normally, all down-selections 
are accomplished without issuance of a new, formal solicitation.

[61 FR 55753, Oct. 29, 1996. Redesignated at 80 FR 68778, Nov. 6, 2015]



1817.7002  Contract clauses.

    (a) The contracting officer shall insert the clause at 1852.217-71, 
Phased Acquisition Using Down-Selection Procedures, in solicitations and 
contracts for phased acquisitions using down-selection procedures other 
than the progressive competition technique. The clause may be modified 
as appropriate if the acquisition has more than two phases. The clause 
shall be included in the solicitation for each phase and in all 
contracts except that for the final phase.
    (b) The contracting officer shall insert the clause at 1852.217-72, 
Phased Acquisition Using Progressive Competition Down-Selection 
Procedures, in solicitations and contracts for phased acquisitions using 
the progressive competition technique. The clause may be modified as 
appropriate if the acquisition has more than two phases. The clause 
shall be included in the initial phase solicitation and all contracts 
except that for the final phase.

[63 FR 56091, Oct. 21, 1998, as amended at 69 FR 21764, Apr. 22, 2004. 
Redesignated at 80 FR 68778, Nov. 6, 2015]

[[Page 204]]



                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS





PART 1819_SMALL BUSINESS PROGRAMS--Table of Contents



Sec.
1819.001 Definitions.

                         Subpart 1819.2_Policies

1819.201 General policy.

Subpart 1819.3_Determination of Small Business Status for Small Business 
                                Programs

1819.302 Protesting a small business representation or rerepresentation.

        Subpart 1819.7_The Small Business Subcontracting Program

1819.708 Contract clauses.
1819.708-70 NASA solicitation provision and contract clause.
1819.811-3 Contract clauses.

Subpart 1819.10 [Reserved]

Subpart 1819.70--1819.71 [Reserved]

        Subpart 1819.72_NASA Mentor-Prot[eacute]g[eacute] Program

1819.7201 Scope of subpart.
1819.7202 Eligibility.
1819.7203 Mentor-prot[eacute]g[eacute] advance payments.
1819.7204 Agreement submission and approval process.
1819.7205 Award Fee Pilot Program.
1819.7206--1819.7211 [Reserved]
1819.7212 Reporting requirements.
1819.7213--1819.7214 [Reserved]
1819.7215 Solicitation provision and contract clauses.

  Subpart 1819.73_Small Business Innovation Research (SBIR) and Small 
              Business Technology Transfer (STTR) Programs

1819.7301 Scope of subpart.
1819.7302 NASA contract clauses.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 36707, July 9, 1997, unless otherwise noted.



1819.001  Definitions.

    High-Tech as used in this part means research and/or development 
efforts that are within or advance the state-of-the-art in a technology 
discipline and are performed primarily by professional engineers, 
scientists, and highly skilled and trained technicians or specialists.



                         Subpart 1819.2_Policies



1819.201  General policy. (NASA supplements paragraphs (a), (c), (d),
and (f))

    (a)(i) NASA is committed to providing to small, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone, small 
disadvantaged, and women-owned small business concerns, maximum 
practicable opportunities to participate in Agency acquisitions at the 
prime contract level. The participation of NASA prime contractors in 
providing subcontracting opportunities to such entities is also an 
essential part of the Agency's commitment. The participation of these 
entities is emphasized in high-technology areas where they have had low 
involvement level.
    (ii) NASA biennially negotiates Agency small business prime and 
subcontracting goals with the Small Business Administration pursuant to 
section 15(g) of the Small Business Act (15 U.S.C. 644). In addition, 
NASA has an annual goal of five percent for prime and subcontract awards 
to small disadvantaged businesses (SDBs) and women-owned small 
businesses (WOSBs), and a three percent goal for HUBZone and service-
disabled, veteran-owned small business concerns.

[62 FR 36707, July 9, 1997, as amended at 64 FR 25215, May 11, 1999; 65 
FR 38777, June 22, 2000; 65 FR 58932, Oct. 3, 2000; 67 FR 53947, Oct. 
23, 2001; 69 FR 21765, Apr. 22, 2004; 80 FR 12938, Mar. 12, 2015]



1819.302  Protesting a small business representation or rerepresentation.

    (h) When the contracting officer determines in writing that an award 
must be made to protect the public interest, the contracting officer 
shall notify the Headquarters Office of Procurement, Program Operations 
Division, the Headquarters Office of Small Business Programs, and the 
SBA.

[80 FR 12938, Mar. 12, 2015]

[[Page 205]]



        Subpart 1819.7_The Small Business Subcontracting Program



1819.708  Contract clauses. (NASA supplements paragraph (b))

    (b)(1) The contracting officer shall use the clause at FAR 52.219-9 
with its Alternate II when contracting by negotiation.



1819.708-70  NASA solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 1852.219-
73, Small Business Subcontracting Plan, in invitations for bids 
containing the clause at FAR 52.219-9 with its Alternate I. Insert in 
the last sentence the number of calendar days after request that the 
offeror must submit a complete plan.
    (b) The contracting officer shall insert the clause at 1852.219-75, 
Individual Subcontracting Reports, in solicitations and contracts 
containing the clause at FAR 52.219-9, except for contracts covered by 
an approved commercial subcontracting plan.

[64 FR 25215, May 11, 1999, as amended at 80 FR 12938, Mar. 12, 2015; 81 
FR 10520, Mar. 1, 2016]



1819.811-3  Contract clauses.

    (a) The contracting officer shall insert the clause at 1852.219-11, 
Special 8(a) Contract Conditions, in contracts and purchase orders 
awarded directly to the 8(a) contractor when the acquisition is 
accomplished using the procedures of FAR 19.811-1(a) and (b).
    (d) The contracting officer shall insert the clause at 1852.219-18, 
Notification of Competition Limited to Eligible 8(a) Concerns, in 
competitive solicitations and contracts when the acquisition is 
accomplished using the procedures of FAR 19.805.
    (1) The clause at 1852.219-18 with Alternate I to the FAR clause at 
52.219-18 will be used when competition is to be limited to 8(a) 
concerns within one or more specific SBA districts pursuant to FAR 
19.804-2.
    (2) The clause at 1852.219-18 with Alternate II to the FAR clause at 
52.219-18 will be used when the acquisition is for a product in a class 
for which the Small Business Administration has waived the 
nonmanufacturer rule (see FAR 19.102(f)(4) and (5)).
    (e) Follow the prescription at FAR 19.811-3(e).

[80 FR 12938, Mar. 12, 2015]

Subpart 1819.10 [Reserved]

Subparts 1819.70--1819.71 [Reserved]



        Subpart 1819.72_NASA Mentor-Prot[eacute]g[eacute] Program

    Source: 74 FR 25672, May 29, 2009, unless otherwise noted.



1819.7201  Scope of subpart.

    (a) This subpart implements the NASA Mentor-Prot[eacute]g[eacute] 
Program (hereafter referred to as the Program) established under the 
authority of Title 42, U.S.C., 2473(c)(1). The purpose of the Program is 
to:
    (1) Provide incentives to NASA contractors, performing under at 
least one active, approved subcontracting plan negotiated with NASA, to 
assist prot[eacute]g[eacute]s in enhancing their capabilities to perform 
as viable NASA contractors, other Government contractors, and commercial 
suppliers on contract and subcontract requirements.
    (2) Increase the overall participation of prot[eacute]g[eacute]s as 
subcontractors and suppliers under NASA contracts, other Federal agency 
contracts, and commercial contracts; and
    (3) Foster the establishment of long-term business relationships 
between prot[eacute]g[eacute]s and mentors.
    (b) Under the Program, eligible entities approved as mentors will 
enter into mentor-prot[eacute]g[eacute] agreements with eligible 
prot[eacute]g[eacute]s to provide appropriate developmental assistance 
to enhance the capabilities of the prot[eacute]g[eacute]s to perform as 
subcontractors and suppliers. NASA may provide the mentor award fee 
incentives. Additionally, this subpart explains the calculated 
subcontracting credit for a mentor-prot[eacute]g[eacute] program 
pursuant to FAR 52.219-9, Small Business Subcontracting Plan.

[74 FR 25672, May 29, 2009, as amended at 80 FR 12938, Mar. 12, 2015]

[[Page 206]]



1819.7202  Eligibility.

    (a) Eligibility of Mentors: To be eligible as a mentor, an entity 
must be--
    (1) A large prime contractor performing with at least one approved 
subcontracting plan, other than a commercial plan, negotiated with NASA, 
pursuant to FAR Subpart 19.7, the Small Business Subcontracting Program. 
A contractor may apply to become a mentor if they currently are not 
performing under a NASA contract as long as they are currently 
performing another Federal agency contract with an approved 
subcontracting plan. The NASA mentor-prot[eacute]g[eacute] agreement, 
however, will not be approved until the mentor company is performing 
under a NASA contract with an approved subcontracting plan; and
    (2) Eligible for receipt of Government contracts. An entity will not 
be approved for participation in the Program if, at the time of 
submission of the application to the Headquarters Office of Small 
Business Programs, the entity is currently debarred or suspended from 
contracting with the Federal Government pursuant to FAR Subpart 9.4, 
Debarment, Suspension, and Ineligibility.
    (b) Eligibility of Prot[eacute]g[eacute]s: To be eligible to 
participate as a prot[eacute]g[eacute], an entity must be--
    (1) Classified as a Small Disadvantaged Business (SDB), a small 
disadvantaged business, a women-owned small business, a historically 
underutilized business zone concern, a veteran-owned, service-disabled 
small business, a historically black college and university, or a 
minority institution. The prot[eacute]g[eacute] entity may also be an 
active NASA SBIR/STTR Phase II company, or an entity participating in 
the AbilityOne program.
    (2) Eligible for the award of Federal contracts; and
    (3) A small business according to the Small Business Administration 
(SBA) size standard for the North American Industry Classification 
System (NAICS) code that represents the contemplated supplies or 
services to be provided by the prot[eacute]g[eacute] to the mentor.
    (c) A prot[eacute]g[eacute] firm may self-certify to a mentor firm 
that it meets the requirements set forth in paragraph (b) of this 
section. Mentors may rely in good faith on written representations by 
potential prot[eacute]g[eacute]s that they meet the specified 
eligibility requirements.

[80 FR 12938, Mar. 12, 2015]



1819.7203  Mentor-prot[eacute]g[eacute] advance payments.

    If advance payments are contemplated, the mentor must first have the 
advance payments approved the contracting officer in accordance with FAR 
Subpart 32.4, Advance Payments for Non-commercial items.

[80 FR 12938, Mar. 12, 2015]



1819.7204  Agreement submission and approval process.

    (a) To participate in the Program, entities approved as mentors in 
accordance with 1819.7203, will submit a complete agreement package to 
the Contracting Officer who will forward the completed agreement package 
to the cognizant Small Business Specialist at the NASA Center. The 
submission package must include the following--
    (1) A signed mentor-prot[eacute]g[eacute] agreement;
    (2) A signed prot[eacute]g[eacute] application;
    (3) The estimated cost of the technical assistance to be provided, 
broken out per year and per task, in a separate cost volume; and
    (4) Additional information as may be requested by the NASA OSBP; and
    (5) A signed letter of endorsement of the agreement by the 
contracting officer and the contracting officer representative.
    (b) The mentor-prot[eacute]g[eacute] agreement must be approved by 
the Assistant Administrator, NASA OSBP, prior to the mentor incurring 
eligible costs for developmental assistance provided to the 
prot[eacute]g[eacute].
    (c) The cognizant NASA center will issue a contract modification, if 
justified, prior to the mentor incurring costs for developmental 
assistance to the prot[eacute]g[eacute].

[80 FR 12938, Mar. 12, 2015]



1819.7205  Award Fee Pilot Program.

    (a) Mentors will be eligible to earn a separate award fee associated 
with the provision of developmental assistance to NASA SBIR/STTR Phase 
II Prot[eacute]g[eacute]s only. The award fee will be assessed at

[[Page 207]]

the end of the Mentor-Prot[eacute]g[eacute] agreement period.
    (b) The overall developmental assistance performance of NASA 
contractors, in promoting the use of small businesses as subcontractors, 
will be a required evaluation factor in award fee plans.
    (c) Evaluation criteria to determine the award fee should include:
    (1) Benefit of the agreement to NASA;
    (2) Active participation in the Program;
    (3) The amount and quality of developmental assistance provided;
    (4) Subcontracts awarded to small businesses and others;
    (5) Success of the prot[eacute]g[eacute]s in increasing their 
business as a result of receiving developmental assistance; and
    (6) Accomplishment of any other activity as related to the mentor-
prot[eacute]g[eacute] relationship.
    (d) The Award Fee Pilot Program is an addition to the credit 
agreement. Participants that are eligible for award fee may also receive 
credit under their individual contract's award fee plan.

[80 FR 12938, Mar. 12, 2015]



1819.7206--1819.7211  [Reserved]



1819.7212  Reporting requirements.

    (a) Mentors must report on the progress made under active mentor-
prot[eacute]g[eacute] agreements semiannually throughout the term of the 
agreement.
    (b) Reports are due 30 days after the end of each six-month period 
of performance commencing with the start of the agreement.
    (c) Each semiannual report must include the following data on 
performance under the mentor-prot[eacute]g[eacute] agreement:
    (1) Expenditures by the mentor.
    (2) The number and dollar value of subcontracts awarded to the 
prot[eacute]g[eacute].
    (3) Description of developmental assistance provided, including 
milestones achieved.
    (4) Impact of the agreement in terms of capabilities enhanced, 
certifications received, and/or technology transferred.
    (d) Semiannually, the prot[eacute]g[eacute] must provide an 
independently developed progress report using the semiannual report 
template, on the progress made during the prior six months by the 
prot[eacute]g[eacute] in employment, revenues, and participation in NASA 
contracts during each year of the Program participation term. The 
Prot[eacute]g[eacute] must also provide an additional post-agreement 
report for each of the two years following the expiration of the Program 
participation term.
    (e) The prot[eacute]g[eacute] semiannual report required by 
paragraph (d) must be submitted separately from the Mentor's semiannual 
report submission.
    (f) Reports for all agreements must be submitted to the NASA OSBP 
Mentor-Prot[eacute]g[eacute] Program Manager, the mentor's cognizant 
administrative contracting officer, and their cognizant center small 
business specialist.
    (g) Templates for the semiannual report and the Post-Agreement 
report and guidance for their submission are available at: http://
www.osbp.nasa.gov.

[74 FR 25672, May 29, 2009, as amended at 80 FR 12939, Mar. 12, 2015]



1819.7213--1819.7214  [Reserved]



1819.7215  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.219-77, 
NASA Mentor-Prot[eacute]g[eacute] Program, in:
    (1) Any contract that includes the clause at FAR 52.219-9, Small 
Business Subcontracting Plan.
    (b) The contracting officer shall insert the clause at 1852.219-79, 
Mentor Requirements and Evaluation, in contracts where the prime 
contractor is a participant in the NASA Mentor-Prot[eacute]g[eacute] 
Program.



  Subpart 1819.73_Small Business Innovation Research (SBIR) and Small 
              Business Technology Transfer (STTR) Programs



1819.7301  Scope of subpart.

    The Small Business Innovation Research (SBIR) and Small Business 
Technology Transfer (STTR) Programs were established and issued under 
the authority of the Small Business Act codified at 15 U.S.C. 631, as 
amended,

[[Page 208]]

and the Small Business Innovation Development Act of 1982 (Pub. L. 97-
219), codified with amendments at 15 U.S.C. 638, as amended. The Small 
Business Act requires that the Small Business Administration (SBA) issue 
SBIR and STTR Program Policy Directives for the general conduct of the 
SBIR/STTR Programs within the Federal Government. The statutory purpose 
of the SBIR Program is to strengthen the role of innovative small 
business concerns (SBCs) in federally-funded research or research and 
development (R/R&D). Specific program purposes are to: Stimulate 
technological innovation; use small business to meet Federal R/R&D 
needs; foster and encourage participation by socially and economically 
disadvantaged SBCs, and by SBCs that are 51-percent owned and controlled 
by women, in technological innovation; and increase private sector 
commercialization of innovations derived from Federal R/R&D, thereby 
increasing competition, productivity and economic growth. Federal 
agencies participating in the SBIR/STTR Programs (SBIR/STTR agencies) 
are obligated to follow the guidance provided by the SBA Policy 
Directive. NASA is required to ensure its policies, regulations, and 
guidance on the SBIR/STTR Programs are consistent with SBA's Policy 
Directive. Contracting officers are required to insert the applicable 
clauses identified in 1819.7302 in all SBIR and STTR contracts.

[71 FR 61688, Oct. 19, 2006, as amended at 80 FR 12939, Mar. 12, 2015]



1819.7302  NASA contract clauses.

    (a) Contracting officers shall insert the clause at 1852.219-80, 
Limitation on Subcontracting--SBIR Phase I Program, in all Phase I 
contracts awarded under the Small Business Innovation Research (SBIR) 
Program established pursuant to Public Law 97-219 (the Small Business 
Innovation Development Act of 1982).
    (b) Contracting officers shall insert the clause at 1852.219-81, 
Limitation on Subcontracting--SBIR Phase II Program, in all Phase II 
contracts awarded under the Small Business Innovation Research (SBIR) 
Program established pursuant to Public Law 97-219 (the Small Business 
Innovation Development Act of 1982).
    (c) Contracting officers shall insert the clause at 1852.219-82, 
Limitation on Subcontracting--STTR Program, in all contracts awarded 
under the Small Business Technology Transfer (STTR) Program established 
pursuant to Public Law 97-219 (the Small Business Innovation Development 
Act of 1982). Occasionally, deviations from this requirement may be 
approved. Any deviations from this requirement shall be approved in 
writing by the contracting officer after coordination with the Agency 
SBIR Program Manager/Coordinator.
    (d) Contracting officers shall insert the clause at 1852.219-83, 
Limitation of the Principal Investigator--SBIR Program, in all contracts 
awarded under the Small Business Innovation Research (SBIR) Program 
established pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982). Occasionally, deviations from this requirement 
may be approved. Any deviations from this requirement shall be approved 
in writing by the contracting officer after coordination with the Agency 
SBIR Program Manager/Coordinator.
    (e) Contracting officers shall insert the clause at 1852.219-84, 
Limitation of the Principal Investigator--STTR Program, in all contracts 
awarded under the Small Business Technology Transfer (STTR) Program 
established pursuant to Public Law 97-219 (the Small Business Innovation 
Development Act of 1982). Occasionally, deviations from this requirement 
may be approved. Any deviations from this requirement shall be approved 
in writing by the contracting officer after coordination with the Agency 
SBIR Program Manager/Coordinator.
    (f) Contracting officers shall insert the clause at 1852.219-85, 
Conditions for Final Payment--SBIR and STTR Contracts, in all Phase I 
and Phase II contract awarded under the Small Business Technology 
Transfer (STTR) Program and the Small Business Innovation Research 
(SBIR) Program established pursuant to Public Law 97-219

[[Page 209]]

(The Small Business Innovation Development Act of 1982.)

[71 FR 61688, Oct. 19, 2006, as amended at 80 FR 12939, Mar. 12, 2015]



PART 1822_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
--Table of Contents



    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55755, Oct. 29, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1822 appear at 66 FR 
53547, Oct. 23, 2001.



                   Subpart 1822.1_Basic Labor Policies



1822.103-5  Contract clause.

    Insert the clause at 52.222-1, Notice to the Government of Labor 
Disputes, in all solicitations and contracts that exceed the simplified 
acquisition threshold.

[69 FR 21765, Apr. 22, 2004]



PART 1823_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
--Table of Contents



     Subpart 1823.2_Energy and Water Efficiency and Renewable Energy

Sec.
1823.271 NASA Solicitation provision and contract clause.

                   Subpart 1823.5_Drug-Free Workplace

1823.570 Drug- and alcohol-free workforce.
1823.570-1 Definitions.
1823.570-2 Contract clause.
1823.570-3 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

                    Subpart 1823.70_Safety and health

1823.7001 NASA solicitation provisions and contract clauses.

          Subpart 1823.71_Authorization for Radio Frequency Use

1823.7101 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55757, Oct. 29, 1996, unless otherwise noted.



     Subpart 1823.2_Energy and Water Efficiency and Renewable Energy



1823.271  NASA Solicitation provision and contract clause.

    Insert the clause at 1852.223-76, Federal Automotive Statistical 
Tool Reporting, in solicitations and contracts requiring contractor 
operation of Government-owned or -leased motor vehicles, including, but 
not limited to, interagency fleet management system (IFMS) vehicles 
authorized in accordance with FAR 51.2.

[68 FR 43334, July 22, 2003]



                   Subpart 1823.5_Drug-Free Workplace



1823.570  Drug- and alcohol-free workforce.

    This section sets sets forth NASA requirements for mandatory drug 
and alcohol testing of certain contractor personnel under section 203, 
National Aeronautics and Space Act of 1958, as amended, 42 U.S.C. 2473, 
72 Stat. 429; and Civil Space Employee Testing Act of 1991, Public Law 
102-195, sec. 21, 105 Stat. 1616 to 1619.

[61 FR 55757, Oct. 29, 1996. Redesignated and amended at 69 FR 21765, 
Apr. 22, 2004]



1823.570-1  Definitions.

    Employee in a sensitive position means a contractor or subcontractor 
employee who has been granted access to classified information; a 
contractor or subcontractor employee in other positions that the 
contractor or subcontractor determines could reasonably be expected to 
affect safety, security, National security, or functions other than the 
foregoing requiring a high degree of trust and confidence; and includes 
any employee performing in a position designated ``mission critical'' or 
performing mission-critical duties. The term also includes any applicant 
who is tentatively selected for a position described in this paragraph.

[[Page 210]]

    Mission Critical Space Systems means the collection of all space-
based and ground-based systems used to conduct space missions or support 
activity in space, including, but not limited to, the crewed space 
system, space-based communication and navigation systems, launch 
systems, and mission/launch control.
    Mission Critical Positions/Duties means positions or duties which, 
if performed in a faulty, negligent, or malicious manner, could 
jeopardize mission critical space systems and/or delay a mission.
    Use, in violation of applicable law or Federal regulation, of 
alcohol includes having, while on duty or during a preemployment 
interview, an alcohol concentration of 0.04 percent by weight or more in 
the blood, as measured by chemical test of the individual's breath or 
blood. An individual's refusal to submit to such test is presumptive 
evidence of use, in violation of applicable law or Federal regulation, 
of alcohol.

[80 FR 60554, Oct. 7, 2015]



1823.570-2  Contract clause.

    The contracting officer shall insert the clause at 1852.223-74, 
Drug- and Alcohol-Free Workforce, in all solicitations and contracts 
exceeding $5 million in which work is performed by an employee in a 
sensitive position. However, the contracting officer shall not insert 
the clause at 1852.223-74 in solicitations and contracts for commercial 
items.

[80 FR 60554, Oct. 7, 2015]



1823.570-3  Suspension of payments, termination of contract, and debarment
and suspension actions.

    The contracting officer shall comply with the procedures of FAR 
23.506 regarding the suspension of contract payments, the termination of 
the contract for default, and debarment and suspension of a contractor 
relative to failure to comply with the clause at 1852.223-74. Causes for 
suspension of contract payments, termination of the contract for 
default, and debarment and suspension of the contractor are the 
following:
    (a) The contractor fails to comply with paragraph (b), (c), or (d) 
of the clause at 1852.223-74; or
    (b) Such a number of contractor employees in sensitive positions 
having been convicted of violations of criminal drug statutes or 
substantial evidence of drug or alcohol abuse or misuse occurring in the 
workplace, as to indicate that the contractor has failed to make a good 
faith effort to provide a drug- and alcohol-free workforce.

[61 FR 55757, Oct. 29, 1996. Redesignated and amended at 69 FR 21765, 
Apr. 22, 2004]



                    Subpart 1823.70_Safety and Health



1823.7001  NASA solicitation provisions and contract clauses.

    (a) Insert the clause at 1852.223-70, Safety and Health Measures and 
Mishap Reporting, in solicitations and contracts above the simplified 
acquisition threshold when the work will be conducted completely or 
partly on federally-controlled facilities.
    (b) The clause prescribed in paragraph (a) of this section may be 
excluded with the approval of the installation official(s) responsible 
for matters of safety and occupational health.
    (c) The contracting officer shall insert the provision at 1852.223-
73, Safety and Health Plan, in solicitations above the simplified 
acquisition threshold when the work will be conducted completely or 
partly on a Federally-controlled facility and the safety and health plan 
will be evaluated in source selection as approved by the source 
selection authority. This provision may be modified to identify specific 
information that is to be included in the plan. After receiving the 
concurrence of the center safety and occupational health official(s), 
the contracting officer shall incorporate the plan as an attachment into 
any resulting contract. The contracting officer shall insert the 
provision, with its Alternate I, in Invitations for Bid.
    (d)(1) The contracting officer shall insert FAR clause at 52.236-13 
with its Alternate I in solicitations and contracts when the work will 
be conducted completely or partly on a Federally-controlled facility and 
a Safety and Health Plan will be reviewed after

[[Page 211]]

award as a contract deliverable. The contracting officer may modify the 
wording in paragraph (f) of Alternate I to specify:
    (i) When the proposed plan is due and
    (ii) Whether the contractor may commence work prior to approval of 
the plan; or
    (iii) To what extent the contractor may commence work before the 
plan is approved.
    (2) The requiring activity, in consultation with the cognizant 
health and safety official(s), will identify the data deliverable 
requirements for the safety and health plan. After receiving the 
concurrence of the center safety and occupational health official(s), 
the contracting officer shall incorporate the plan as an attachment into 
the contract.
    (e)(1) The contracting officer shall insert the clause at 1852.223-
75, Major Breach of Safety or Security, in all solicitations and 
contracts with estimated values of $500,000 or more, unless waived at a 
level above the contracting officer with the concurrence of the project 
manager and the installation official(s) responsible for matters of 
security, export control, safety, and occupational health.
    (2) Insert the clause with its Alternate I if--
    (i) The solicitation or contract is with an educational or other 
nonprofit institution and contains the termination clause at FAR 52.249-
5; or
    (ii) The solicitation or contract is for commercial items and 
contains the clause at FAR 52.212-4.
    (3) For contracts with estimated values below $500,000, use of the 
clause is optional.
    (f) The contracting officer shall insert the clause at 1852.223-72, 
Safety and Health (Short Form) in solicitations and contracts above the 
simplified acquisition threshold when work will be conducted completely 
or partly on Federally-controlled facilities and that do not contain the 
clause at 1852.223-73 or the FAR clause at 52.236-13 with its Alternate 
I.

[65 FR 37059, June 13, 2000, as amended at 65 FR 70316, Nov. 22, 2000; 
66 FR 18052, Apr. 5, 2001; 66 FR 48361, Sept. 20, 2001; 67 FR 17016, 
Apr. 9, 2002; 71 FR 8989, Feb. 22, 2006; 80 FR 36721, June 26, 2015; 80 
FR 73677, Nov. 25, 2015; 81 FR 71638, Oct. 18, 2016]



          Subpart 1823.71_Authorization for Radio Frequency Use



1823.7101  Contract clause.

    The contracting officer shall insert the clause at 1852.223-71, 
Authorization for radio Frequency Use, in solicitations and contracts 
calling for developing, producing, constructing, testing, or operating a 
device for which a radio frequency equipment authorization is required.

[80 FR 12939, Mar. 12, 2015]



PART 1824_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
--Table of Contents



             Subpart 1824.1_Protection of Individual Privacy

Sec.
1824.102 General.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55758, Oct. 29, 1996, unless otherwise noted.



             Subpart 1824.1_Protection of Individual Privacy



1824.102  General.

    (1) For NASA rules and regulations implementing the Privacy Act, see 
Privacy--NASA Regulations, (14 CFR 1212). The Act applies to any 
contractor maintaining a system of records to accomplish a NASA mission.
    (2) Systems of records to which the Privacy Act does not apply 
include--
    (i) Records maintained by a contractor on individuals employed by 
the contractor on its own behalf for the purpose of providing supplies 
and services to the Federal Government; and
    (ii) Records that--
    (A) Are maintained under contracts with educational institutions to 
provide training;

[[Page 212]]

    (B) Are generated on students working under the contract relative to 
their attendance (admission forms, grade reports, etc.);
    (C) Are similar to those maintained on other students; and
    (D) Are commingled with their records on other students.



PART 1825_FOREIGN ACQUISITION--Table of Contents



Sec.
1825.003 Definitions.
1825.003-70 NASA definitions.

                Subpart 1825.1_Buy American Act_Supplies

1825.103 Exceptions.

                     Subpart 1825.4_Trade Agreements

1825.400 Scope of subpart.

                    Subpart 1825.9_Customs and Duties

1825.901 Policy.

      Subpart 1825.11_Solicitation Provisions and Contract Clauses

1825.1101 Acquisition of supplies.
1825.1103 Other provisions and clauses.
1825.1103-70 Export control.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 65 FR 10031, Feb. 25, 2000, unless otherwise noted.



1825.003  Definitions.



1825.003-70  NASA definitions.

    ``Canadian end product'', for an item with an estimated value of 
$25,000 or less, means an unmanufactured end product mined or produced 
in Canada or an end product manufactured in Canada, if the cost of its 
components mined, produced, or manufactured in Canada or the United 
States exceeds 50 percent of the cost of all its components. The cost of 
components includes transportation costs to the place of incorporation 
into the end product. For an end product with an estimated value in 
excess of $25,000, the definition at FAR 25.003 applies.



                Subpart 1825.1_Buy American Act_Supplies



1825.103  Exceptions.

    (a)(i) The Assistant Administrator for Procurement has determined 
that it is inconsistent with the public interest to apply restrictions 
of the Buy American Act to Canadian end products with estimated values 
of $25,000 or less as defined in 1825.003-70. Accordingly, contracting 
officers must evaluate all offers for such Canadian end products on a 
parity with offers for domestic end products, except that applicable 
duty (whether or not a duty free entry certificate may be issued) must 
be included in evaluating offers for Canadian end products.
    (ii) The Assistant Administrator for Procurement has determined that 
for procurements subject to the Trade Agreements Act, it would be 
inconsistent with the public interest to apply the Buy American Act to 
U.S.-made end products that are substantially transformed in the United 
States.

[65 FR 10031, Feb. 25, 2000, as amended at 68 FR 11748, Mar. 12, 2003; 
69 FR 21765, Apr. 22, 2004]



                     Subpart 1825.4_Trade Agreements



1825.400  Scope of subpart.

    (b) The Buy American Act applies to all acquisitions of Japanese end 
products or services in excess of $3,000.

[65 FR 10031, Feb. 25, 2000, as amended at 67 FR 50824, Aug. 6, 2002; 71 
FR 71073, Dec. 8, 2006]



                    Subpart 1825.9_Customs and Duties



1825.901  Policy.

    NASA has statutory authority to exempt certain articles from import 
duties, including articles that will be launched into space, spare parts 
for such articles, ground support equipment, and unique equipment used 
in connection with an international program or launch service agreement. 
This authority is fully described in 14 CFR part 1217.

[[Page 213]]



      Subpart 1825.11_Solicitation Provisions and Contract Clauses



1825.1101  Acquisition of supplies.

    (c)(1) NASA has determined that the restrictions of the Buy American 
Act are not applicable to U.S.-made end products.
    (e) The contracting officer must add paragraph (k) as set forth in 
1852.225-8, Duty-Free Entry of Space Articles, in solicitations and 
contracts when the supplies that will be accorded duty-free entry are 
identifiable before award. Insert the supplies determined in accordance 
with FAR subpart 25.9 and 1825.903.

[65 FR 10031, Feb. 25, 2000, as amended at 68 FR 11748, Mar. 12, 2003]



1825.1103  Other provisions and clauses.



1825.1103-70  Export control.

    (a) Background. (1) NASA contractors and subcontractors are subject 
to U.S. export control laws and regulations, including the International 
Traffic in Arms Regulations (ITAR), 22 CFR parts 120 through 130, and 
the Export Administration Regulations (EAR), 15 CFR parts 730 through 
799. The contractor is responsible for obtaining the appropriate 
licenses or other approvals from the Department of State or the 
Department of Commerce when it exports hardware, technical data, or 
software, or provides technical assistance to a foreign destination or 
``foreign person'', as defined in 22 CFR 120.16, and there are no 
applicable or available exemptions/exceptions to the ITAR/EAR, 
respectively. A person who is lawfully admitted for permanent residence 
in the United States is not a ``foreign person''. (See 22 CFR 120.16 and 
15 CFR 734.2(b)(2)(ii))
    (2) The exemption at 22 CFR 125.4(b)(3) of the ITAR provides that a 
contractor may export technical data without a license if the contract 
between the agency and the exporter provides for the export of the data. 
The clause at 1852.225-70, Alternate I, provides contractual authority 
for the exemption, but the exemption is available only after the 
contracting officer, or designated representative, provides written 
authorization or direction enabling its use. It is NASA policy that the 
exemption at 22 CFR 125.4(b)(3) may only be used when technical data 
(including software) is exchanged with a NASA foreign partner pursuant 
to the terms of an international agreement in furtherance of an 
international collaborative effort. The contracting officer must obtain 
the approval of the Center Export Administrator before granting the 
contractor the authority to use this exemption.
    (b) Contract clause. Insert the clause at 1852.225-70, Export 
Licenses, in all solicitations and contracts, except in contracts with 
foreign entities. Insert the clause with its Alternate I when the NASA 
project office indicates that technical data (including software) is to 
be exchanged by the contractor with a NASA foreign partner pursuant to 
an international agreement.

[[Page 214]]



              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS





PART 1827_PATENTS, DATA, AND COPYRIGHTS--Table of Contents



Sec.
1827.000 Scope of part.

         Subpart 1827.3_Patent Rights Under Government Contracts

1827.301 Definitions.
1827.302 Policy.
1827.303 Solicitation provisions and contract clauses.
1827.304 Procedures.
1827.304-1 General.
1827.304-2 Contracts placed by or for other Government agencies.
1827.304-3 Subcontracts.
1827.304-4 Appeals.
1827.305 Administration of the patent rights clauses.
1827.305-3 Securing invention rights acquired by the Government.

              Subpart 1827.4_Rights in Data and Copyrights

1827.404 Basic rights in data clause.
1827.404-4 Contractor's release, publication, and use of data.
1827.409 Solicitation provisions and contract clauses.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 80 FR 12939, Mar. 12, 2015, unless otherwise noted.



1827.000  Scope of part.

    This part prescribes NASA policies, procedures, and contract clauses 
pertaining to patents, data, and copyrights. The provisions of FAR Part 
27 apply to NASA acquisitions unless specifically excepted in this part.



         Subpart 1827.3_Patent Rights Under Government Contracts



1827.301  Definitions.

    As used in this subpart--
    Administrator means the Administrator of NASA or a duly authorized 
representative.
    Reportable item means any invention, discovery, improvement, or 
innovation of the contractor, whether or not patentable or otherwise 
protectable under Title 35 of the United States Code, made in the 
performance of any work under any NASA contract or in the performance of 
any work that is reimbursable under any clause in any NASA contract 
providing for reimbursement of costs incurred before the effective date 
of the contract. Reportable items include, but are not limited to, new 
processes, machines, manufactures, and compositions of matter, and 
improvements to, or new applications of, existing processes, machines, 
manufactures, and compositions of matter. Reportable items also include 
new computer programs, and improvements to, or new applications of, 
existing computer programs, whether or not copyrightable or otherwise 
protectable under Title 17 of the United States Code.
    Subject invention, in lieu of the definition in FAR 27.301, means 
any reportable item that is or may be patentable or otherwise 
protectable under Title 35 of the 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.).



1827.302  Policy.

    (a) Introduction. NASA policy with respect to any invention, 
discovery, improvement, or innovation made in the performance of work 
under any NASA contract or subcontract with other than a small business 
firm or a nonprofit organization and the allocation of related property 
rights is based upon Section 20135 of the National Aeronautics and Space 
Act (51 U.S.C. 20135) (the Act); and, to the extent consistent with this 
statute, the Presidential Memorandum on Government Patent Policy to the 
Heads of Executive Departments and Agencies, dated February 18, 1983, 
and Section 1(b)(4) of Executive Order 12591. NASA contractors subject 
to Section 20135 of the Act shall ensure the prompt reporting of 
reportable items in order to protect the Government's interest and to 
provide the widest practicable and appropriate dissemination, early 
utilization, expeditious development, and continued

[[Page 215]]

availability for the benefit of the scientific, industrial, and 
commercial communities and the general public.
    (b) Contractor right to elect title. (1) For NASA contracts, the 
contractor right to elect title under the FAR only applies to contracts 
with small businesses and nonprofit organizations. For other business 
entities, see paragraph (b)(2)(v) of this section;
    (2)(v) Under any NASA contract with other than a small business or 
nonprofit organization (i.e., contracts subject to section 20135(b) of 
the Act), title to subject inventions vests in NASA when the 
determinations of section 20135(b)(1)(A) or (b)(1)(B) have been made. 
The Administrator may grant the contractor a waiver of title in 
accordance with 14 CFR part 1245.
    (3) Contractor petitions for waiver of title. The Administrator may 
waive all or any part of the rights of the United States with respect to 
any invention or class of inventions made or which may be made in the 
performance of NASA contracts with other than a small business firm or a 
nonprofit organization if the Administrator determines that the 
interests of the United States will be served. The procedures and 
instructions for contractors to submit petitions for waiver of rights in 
subject inventions are provided in the NASA Patent Waiver Regulations, 
14 CFR part 1245, subpart 1, http://www.gpo.gov/fdsys/pkg/CFR-2012-
title14-vol5/pdf/CFR-2012-title14-vol5-part1245.pdf. Waiver may be 
requested in advance of contract award for any subject invention or 
class of subject inventions or during contract performance for 
individually identified subject inventions reported under the contract. 
For individual identified subject inventions, the petition shall 
identify each invention with particularity (e.g., by NASA's assigned 
number to the Disclosure of Invention and New Technology report or by 
title and inventorship). For advance waivers, the petition shall 
identify the invention or class of inventions that the Contractor 
believes will be made under the contract and for which waiver is being 
requested. To meet the statutory standard of ``any invention or class of 
inventions,'' the petition must be directed to a single invention or to 
inventions directed to a particular process, machine, manufacture, or 
composition of matter, or to a narrowly-drawn, focused area of 
technology. When a waiver of title is granted, the contractor's right to 
title, the rights reserved by the Government, and other conditions and 
obligations of the waiver, such as requirements for reporting and filing 
patent applications on waived inventions, are provided in the NASA 
Patent Waiver Regulations, 14 CFR part 1245, subpart 1, and the 
Instrument of Waiver executed under those Regulations.
    (c) Government license. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or nonprofit organization and for which waiver of title 
has been granted, the Administrator shall reserve an irrevocable, 
nonexclusive, nontransferable, royalty-free license for the practice of 
such invention throughout the world by or on behalf of the United States 
or any foreign Government in accordance with any treaty or agreement of 
the United States.
    (e) Utilization reports. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or a nonprofit organization and for which waiver of title 
has been granted, the requirements for utilization reports shall be as 
set forth in the NASA Patent Waiver Regulations, 14 CFR part 1245, 
subpart 1, and the Instrument of Waiver executed under those 
Regulations.
    (f) March-in rights. For each subject invention made in the 
performance of work under a NASA contract with other than a small 
business firm or a nonprofit organization and for which waiver of title 
has been granted, march-in rights shall be as set forth in the NASA 
Patent Waiver Regulations, 14 CFR part 1245, subpart 1, and the 
Instrument of Waiver executed under those Regulations.
    (g) Preference for United States industry. For each subject 
invention made in the performance of work under a NASA contract with 
other than a small business firm or a nonprofit organization and for 
which waiver of title has been granted, waiver of the requirement for 
substantial manufacture in the United States shall be in accordance with

[[Page 216]]

Title 35 of the United States Code, section 204.
    (i) Minimum rights to contractor. (1) For NASA contracts with other 
than a small business firm or a nonprofit organization, where title to 
any subject inventions vests in NASA, the contractor is normally 
granted, in accordance with the NASA Patent Waiver Regulations, 14 CFR 
1245.108, a revocable, nonexclusive, royalty-free license in each patent 
application filed in any country and in any resulting patent. The 
license extends to any of the contractor's domestic subsidiaries and 
affiliates within the corporate structure, and includes the right to 
grant sublicenses of the same scope to the extent the contractor was 
legally obligated to do so at the time the contract was awarded. The 
license and right are transferable only with the approval of the 
Administrator, except when transferred to the successor of that part of 
the contractor's business to which the invention pertains.
    (2) The procedures for revoking or modifying the license to a 
contractor that is other than a small business firm or a nonprofit 
organization are described in 14 CFR 1245.108.
    (k) Awards. It is the policy of NASA to consider for a monetary 
award, when referred to the NASA Inventions and Contributions Board in 
accordance with 14 CFR part 1240, subpart 1, any subject invention 
reported to NASA in accordance with this subpart, and for which an 
application for patent has been filed.



1827.303  Solicitation provisions and contract clauses.

    (a)(1) The contracting officer shall insert the provision at 
1852.227-84, Patent Rights Clauses, in solicitations for experimental, 
developmental, or research work to be performed in the United States 
when the eventual awardee may be a small business or a nonprofit 
organization.
    (b)(1) When the clause at FAR 52.227-11 is included in a 
solicitation or contract, it shall be modified as set forth at 1852.227-
11.
    (i) To qualify for the clause at FAR 52.227-11, a prospective 
contractor shall be required to represent itself as either a small 
business firm or a nonprofit organization. If the contracting officer 
has reason to question the size or nonprofit status of the prospective 
contractor, the contracting officer will follow the procedures at FAR 
27.304-1(a).
    (iii) The contracting officer shall complete paragraph (j) of the 
clause at FAR 52.227-11 with the following: Communications and 
information submissions required by this clause will be made to the 
individuals identified in the clause at 1852.227-72, Designation of New 
Technology Representative and Patent Representative.
    (iv) See also paragraph (d)(3) of this section.
    (6) Alternate IV to 52.227-11 is not used in NASA contracts. See 
instead 1827.303(b)(1).
    (7) The contracting officer shall consult with the center patent or 
intellectual property counsel regarding the use of Alternate V in 
contracts for the performance of services at a NASA installation when a 
contractor is directed to fulfill the Government's obligations under a 
Cooperative Research and Development Agreement (CRADA) authorized by 15 
U.S.C. 3710a. Alternate V may be included in, or added to, the contract 
when it is contemplated that a Contractor will be directed to fulfill 
NASA's obligations under a CRADA, but should be added prior to the 
contractor performing work under the CRADA.
    (d)(1) The contracting officer shall insert the clause at 1852.227-
70, New Technology--Other than a Small Business Firm or Nonprofit 
Organization, in all NASA solicitations and contracts with other than a 
small business firm or a nonprofit organization (i.e., those subject to 
section 21035(b) of the Act), if the contract is to be performed in the 
United States, and has as a purpose the performance of experimental, 
developmental, research, design, or engineering work. Contracts for any 
of the following purposes may be considered to involve the performance 
of work of the type described above (these examples are illustrative and 
not all inclusive):
    (i) Conduct of basic or applied research.
    (ii) Development, design, or manufacture for the first time of any 
machine, article of manufacture, or composition

[[Page 217]]

of matter to satisfy NASA's specifications or special requirements.
    (iii) Development of any process or technique for attaining a NASA 
objective not readily attainable through the practice of a previously 
developed process or technique.
    (iv) Testing of, evaluation of, or experimentation with a machine, 
process, concept, or technique to determine whether it is suitable or 
could be made suitable for a NASA objective.
    (v) Construction work or architect-engineer services having as a 
purpose the performance of experimental, developmental, or research work 
or test and evaluation studies involving such work.
    (vi) The operation of facilities or the coordination and direction 
of the work of others, if these activities involve performing work of 
any of the types described in paragraphs (i) through (v) of this 
section.
    (2) The contracting officer shall insert the provision at 1852.227-
71, Requests for Waiver of Rights to Inventions, in all solicitations 
that include the clause at 1852.227-70, New Technology--Other than a 
Small Business Firm or Nonprofit Organization (see paragraph (d)(1) of 
this section).
    (3) The contracting officer shall insert the clause at 1852.227-72, 
Designation of New Technology Representative and Patent Representative, 
in all solicitations and contracts containing either of the clauses at 
FAR 52.227-11, Patent Rights--Ownership by the Contractor, or 1852.227-
70, New Technology--Other than a Small Business Firm or Nonprofit 
Organization (see paragraph (d)(1) of this section). It may also be 
inserted, upon consultation with the center patent or intellectual 
property counsel, in solicitations and contracts using another patent 
rights clause. The center New Technology and Patent Representatives are 
identified at http://prod.nais.nasa.gov/portals/pl/new_tech_pocs.html.
    (e)(1) When work is to be performed outside the United States by 
contractors that are not domestic firms, the clause at 1852.227-85, 
Invention Reporting and Rights--Foreign, shall be used unless the 
contracting officer determines, with concurrence of the center patent or 
intellectual property counsel, that the objectives of the contract would 
be better served by use of the clause at FAR 52.227-13, Patent Rights--
Ownership by the Government. For this purpose, the contracting officer 
may presume that a contractor is not a domestic firm unless it is known 
that the firm is not foreign owned, controlled, or influenced. (See FAR 
27.304-3 regarding subcontracts with U.S. firms.)
    (2) When one of the conditions in FAR 27.303(e)(1)(i) through (iv) 
is met, the contracting officer shall consult with the center patent or 
intellectual property counsel to determine the appropriate clause.



1827.304  Procedures.



1827.304-1  General.

    (b)(1) Exceptions. In any contract with other than a small business 
firm or nonprofit organization, the NASA Patent Waiver Regulations, 14 
CFR part 1245, subpart 1, shall apply.
    (c) Greater rights determinations. In any contract with other than a 
small business firm or a nonprofit organization and with respect to 
which advance waiver of rights has not been granted (see 
1827.302(b)(3)), the contractor (or an employee-inventor of the 
contractor after consultation with the contractor) may request waiver of 
title to an individual identified subject invention pursuant to the NASA 
Patent Waiver Regulations, 14 CFR part 1245, subpart 1.
    (d) Retention of rights by inventor. The NASA Patent Waiver 
Regulations, 14 CFR part 1245, subpart 1, apply for any invention made 
in the performance of work under any contract with other than a small 
business firm or a nonprofit organization.
    (f) Revocation or modification of contractor's minimum rights. For 
contracts with other than a small business firm or a nonprofit 
organization, revocation or modification of the contractor's license 
rights in subject inventions made and reported under the contract shall 
be in accordance with 14 CFR 1245.108 (see 1827.302(i)(2)).
    (g) Exercise of march-in rights. For contracts with other than a 
small business firm or a nonprofit organization, the procedures for the 
exercise of march-in rights shall be as set forth in

[[Page 218]]

the NASA Patent Waiver Regulations, 14 CFR part 1245, subpart 1.
    (h) Licenses and assignments under contracts with nonprofit 
organizations. The Headquarters Agency Counsel for Intellectual Property 
(ACIP) is the approval authority for assignments. Contractor requests 
should be made to the Patent Representative designated in the clause at 
1852.227-72 and forwarded, with recommendation of the Patent 
Representative, to the ACIP for approval.



1827.304-2  Contracts placed by or for other Government agencies.

    (a)(3)(i) This subsection applies only to contracts placed by or for 
other agencies and not to task or delivery orders placed by or for other 
agencies against NASA Government-wide Acquisition Contracts (GWACs) or 
Multiple Agency Contracts (MACs).
    (ii) When a contract is placed for another agency with a small 
business or nonprofit organization and the agency does not request the 
use of a specific patent rights clause, the contracting officer shall 
use the clause at FAR 52.227-11, Patent Rights--Ownership by the 
Contractor as modified by 1852.227-11 (see 1827.303(b)(1)).
    (iii) When a contract is placed for another agency with other than a 
small business or nonprofit organization, the contracting officer, in 
accordance with Section 20135 of the Act, shall use the clause at 
1852.227-70, New Technology--Other than a Small Business Firm or 
Nonprofit Organization (see 1827.303(d)(1).
    (iv) When work is to be performed outside the United States by 
contractors that are not domestic firms, the contracting officer shall 
use one of the clause described in 1827.303(e)(1).



1827.304-3  Subcontracts.

    (a) Unless otherwise authorized or directed by the contracting 
officer, contractors awarding subcontracts at any tier shall select and 
include in the subcontracts one of the clauses identified in 
subparagraphs (a)(1) or (2) of this section. At all tiers, the 
applicable clause identified below shall be modified to identify the 
parties as follows: references to the Government are not changed, and in 
all references to the Contractor the subcontractor is substituted for 
the Contractor so that the subcontractor has all rights and obligations 
of the Contractor in the clause.
    (1) The clause at 1852.227-70, New Technology--Other than a Small 
Business Firm or Nonprofit Organization, shall be used in any 
subcontract with other than a small business firm or a nonprofit 
organization if a purpose of the subcontract is the performance of 
experimental, developmental, research, design, or engineering work of 
any of the types described in 1827.303(d)(1).
    (2) The clause at FAR 52.227-11, Patent Rights--Ownership by the 
Contractor, modified by 1852.227-11 (see 1827.303(b)(1)), shall be used 
in any subcontract with a small business firm or a nonprofit 
organization if a purpose of the subcontract is the performance of 
experimental, developmental, or research work.



1827.304-4  Appeals.

    FAR 27.304-4 shall apply unless otherwise provided in the NASA 
Patent Waiver Regulations, 14 CFR part 1245, subpart 1.



1827.305  Administration of the patent rights clauses.



1827.305-3  Securing invention rights acquired by the Government.

    When the Government acquires the entire right to, title to, and 
interest in an invention under the clause at 1852.227-70, New 
Technology--Other than a Small Business Firm or Nonprofit Organization, 
a determination of title is to be made in accordance with section 
20135(b) of the Act (51 U.S.C. 20135(b)), and reflected in appropriate 
instruments executed by NASA Administrator and forwarded to the 
contractor by the contracting officer.



              Subpart 1827.4_Rights in Data and Copyrights



1827.404  Basic rights in data clause.



1827.404-4  Contractor's release, publication, and use of data.

    (b)(1) NASA's intent is to ensure the most expeditious dissemination 
of computer software developed by it or its contractor. Accordingly, 
when the

[[Page 219]]

clause at FAR 52.227-14, Rights in Data--General, is modified by 
1852.227-14 (see 1827.409(b)(1)), the contractor shall not assert claim 
to copyright, publish, or release to others computer software first 
produced in the performance of a contract without the contracting 
officer's prior written permission. The prohibition on ``release to 
others'' does not prohibit release to another Federal Agency for its use 
or its contractors' use, as long as any such release is consistent with 
any restrictive markings on the software. Any restrictive markings on 
the software shall take precedence over the aforementioned release. Any 
such release to a Federal Agency in accordance with this paragraph shall 
limit use to the Federal Agency or its contractors for Government 
purposes only.
    (2) The contracting officer may, in consultation with the center 
patent or intellectual property counsel, grant the contractor permission 
to assert claim to copyright, publish, or release to others computer 
software first produced in the performance of a contract if:
    (i) The contractor has identified an existing commercial computer 
software product line or proposes a new one and states a positive 
intention of incorporating identified computer software first produced 
under the contract into that line, either directly itself or through a 
licensee;
    (ii) The contractor has identified an existing open source software 
project or proposes a new one and states a positive intention of 
incorporating identified computer software first produced under the 
contract into that project, or has been instructed by the Agency to 
incorporate software first produced under the contract into an open 
source software project or otherwise release the software as open source 
software;
    (iii) The contractor has made, or will be required to make, 
substantial contributions to the development of the computer software by 
co-funding or by cost-sharing, or by contributing resources (including 
but not limited to agreement to provide continuing maintenance and 
update of the software at no cost for Governmental use); or
    (iv) The concurrence of the Agency Counsel for Intellectual 
Property, or designee, is obtained.
    (c)(1) The contractor's request for permission in accordance with 
1827.404-4(b) may be made either before contract award or during 
contract performance.
    (2)(i) If the basis for permitting the assertion under 1827.404-
4(b)(2) is subsection (i), then the permission shall be granted by a 
contract modification prepared by the contracting officer in 
consultation with the Center patent or intellectual property counsel 
that contains appropriate assurances that the computer software will be 
incorporated into an existing or proposed new commercial computer 
software product line within a specified reasonable time, with 
contingencies enabling the Government to obtain the right to distribute 
the software for commercial use, including the right to obtain 
assignment of copyright where applicable, in order to prevent the 
computer software from being suppressed or abandoned by the contractor.
    (ii) If the basis for permitting the assertion under 1827.404-
4(b)(2) is paragraph (b)(2)(ii), then the permission shall be granted by 
a contract modification prepared by the contracting officer in 
consultation with the Center patent or intellectual property counsel 
that contains appropriate assurances that the computer software will be 
incorporated into an existing or proposed new open source project within 
a specified reasonable time, with contingencies enabling the Government 
to obtain the right to distribute the software for open source 
development, including the right to obtain assignment of copyright where 
applicable, in order to prevent the computer software from being 
suppressed or abandoned by the contractor.
    (iii) If the basis for permitting the assertion under 1827.404-
4(b)(2) is paragraph (b)(2)(iii), then the permission shall be granted 
by a contract modification that contains appropriate assurances that the 
agreed contributions to the Government are fulfilled, with contingencies 
enabling the Government to obtain assignment of copyright if such 
contributions do not occur

[[Page 220]]

in order to prevent the computer software from being suppressed or 
abandoned by the contractor.
    (iv) If the basis for permitting the assertion under 1827.404-
4(b)(2) is paragraph (b)(2)(iv), then the permission shall be granted by 
a contract modification prepared by the contracting officer in 
consultation with the Center patent or intellectual property counsel 
that contains appropriate assurances as required by the Agency Counsel 
for Intellectual Property, or designee, including at the very least the 
right to obtain assignment of copyright in order to prevent the computer 
software from being suppressed or abandoned by the contractor.
    (3) When any permission to copyright is granted, any copyright 
license retained by the Government shall be of the same scope as set 
forth in subparagraph (c)(1) of the clause at FAR 52.227-14 and without 
any obligation of confidentiality on the part of the Government unless, 
in accordance with 1827.404-4(b)(2)(iii), the contributions of the 
Contractor are considered ``substantial'' for the purposes of FAR 27.408 
(i.e., approximately 50 percent), in which case rights consistent with 
FAR 27.408 may be negotiated for the computer software in question.
    (d) If the contractor has not been granted permission to assert 
claim to copyright, paragraph (d)(4)(ii) of the clause at FAR 52.227-14, 
Rights in Data--General (as modified by 1852.227-14) enables NASA to 
direct the contractor to assert claim to copyright in computer software 
first produced under the contract and to assign, or obtain the 
assignment of, such copyright to the Government or its designated 
assignee. The contracting officer may, in consultation with the center 
patent or intellectual property counsel, so direct the contractor in 
situations where copyright protection is considered necessary in 
furtherance of Agency mission objectives, needed to support specific 
Agency programs, or necessary to meet statutory requirements.



1827.409  Solicitation provisions and contract clauses.

    (b)(1) When the clause at FAR 52.227-14, Rights in Data--General, is 
included in a solicitation or contract, it shall be modified as set 
forth at 1852.227-14. In contracts for basic or applied research to be 
performed solely by universities and colleges, the contracting officer 
shall consult with the center patent or intellectual property counsel 
regarding the addition of subparagraph (4) as set forth at 1852.227-14 
to paragraph (d) of the clause at FAR 52.227-14 and they will consider 
the guidance provided at FAR 27.404-4.
    (2) The contracting officer, with the concurrence of the center 
patent or intellectual property counsel, is the approval authority for 
use of Alternate I of the clause at FAR 52.227-14. An example of its use 
is where the principal purpose of the contract (such as a contract for 
basic or applied research) does not involve the development, use, or 
delivery of items, components, or processes that are intended to be 
acquired for use by or for the Government (either under the contract in 
question or under any anticipated follow-on contracts relating to the 
same subject matter).
    (3) The contracting officer shall review the disclosure purposes 
listed in FAR 27.404-2(c)(1)(i) through (v) and, in consultation with 
the center patent or intellectual property counsel, determine which 
disclosure purposes apply based on the nature of the acquisition, and 
add them to paragraph (g)(3) of Alternate II of the clause at FAR 
52.227-14, Rights in Data--General. If none apply, the CO shall insert 
``none''. Additions to those specific purposes listed may be made only 
with the approval of the procurement officer and concurrence of the 
center patent or intellectual property counsel.
    (4) The contracting officer shall consult with the center patent or 
intellectual property counsel regarding the acquisition of restricted 
computer software with greater or lesser rights than those set forth in 
Alternate III of the clause at FAR 52.227-14, Rights in Data--General. 
Where it is impractical to actually modify the notice of Alternate III, 
such greater or lesser rights may be indicated by express reference in a 
separate clause in the contract or by a collateral agreement that 
addresses the change in the restricted rights.

[[Page 221]]

    (5) The contracting officer, with the concurrence of the center 
patent or intellectual property counsel, is the approval authority for 
the use of Alternate IV in any contract other than a contract for basic 
or applied research to be performed solely by a college or university 
(but not for the management or operation of Government facilities). See 
the guidance at FAR 27.404-3(a)(3).
    (d) The clause at 52.227-16, Additional Data Requirements, shall be 
used in all solicitations and contracts involving experimental, 
developmental, research, or demonstration work (other than basic or 
applied research to be performed under a contract solely by a university 
or college when the contract amount will be $500,000 or less), unless 
after consultation between the Contracting Officer and the center patent 
or intellectual property counsel a determination is made otherwise.
    (g) The contracting officer shall use the clause at 1852.227-86, 
Commercial Computer Software License, in lieu of FAR 52.227-19, 
Commercial Computer Software License, when it is considered appropriate 
for the acquisition of existing computer software.
    (h) Normally the clause at 52.227-20, Rights in Data--SBIR Program, 
is the only data rights clause used in SBIR contracts. However, if 
during the performance of an SBIR contract (Phase I, Phase II, or Phase 
III) the need arises for NASA to obtain delivery of limited rights data 
or restricted computer software as defined in the clause at FAR 52.227-
20, and the contractor agrees to such delivery, the limited rights data 
or restricted computer software may be acquired by modification of the 
contract (for example, by adding the clause at FAR 52.227-14 with any 
appropriate Alternates and making it applicable only to the limited 
rights data or restricted computer software to be delivered), using the 
rights and related restrictions as set forth in FAR 27.404-2 as a guide.
    (i) The contract officer shall modify the clause at FAR 52.227-17, 
Rights in Data--Special Works by adding paragraph (f) as set forth in 
1852.227-17.
    (k)(i) The contracting officer shall add paragraph (e) as set forth 
in 1852.227-19(a) to the clause at FAR 52.227-19, Commercial Computer 
Software License, when it is contemplated that updates, correction 
notices, consultation information, and other similar items of 
information relating to commercial computer software delivered under a 
purchase order or contract are available and their receipt can be 
facilitated by signing a vendor supplied agreement, registration forms, 
or cards and returning them directly to the vendor.
    (ii) The contracting officer shall add paragraph (f) as set forth at 
1852.227-19(b) to the clause at FAR 52.227-19, Commercial Computer 
Software License, when portions of a contractor's standard commercial 
license or lease agreement consistent with the clause, Federal laws, 
standard industry practices, and the FAR are to be incorporated into the 
purchase order or contract.
    (m)(1) The contracting officer, shall consult with the center patent 
or intellectual property counsel and the installation software release 
authority to determine when to use the clause at 1852.227-88, 
Government-furnished computer software and related technical data.
    (2) The clause may be included in, or added to, the contract when it 
is contemplated that computer software and related technical data will 
be provided to the contractor as Government-furnished information for 
use in performing the contract.

[80 FR 12939, Mar. 12, 2015, as amended at 80 FR 61994, Oct. 15, 2015]



PART 1828_BONDS AND INSURANCE--Table of Contents



                        Subpart 1828.3_Insurance

Sec.
1828.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.
1828.311-1 Contract clause.
1828.311-2 Agency solicitation provisions and contract clauses.
1828.311-270 NASA solicitation provisions and contract clauses.
1828.370 Fixed-price contract clauses.
1828.371 Clauses incorporating cross-waivers of liability for 
          International Space Station activities and Science or Space 
          Exploration activities unrelated to the International Space 
          Station.

[[Page 222]]

1828.372 Clause for minimum insurance coverage.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55765, Oct. 29, 1996, unless otherwise noted.



                        Subpart 1828.3_Insurance



1828.311  Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.



1828.311-1  Contract clause.

    The contracting officer shall insert the clause at FAR 52.228-7, 
Insurance--Liability to Third Persons, in solicitations and contracts, 
other than those for construction contracts and those for architect-
engineer services, when a cost-reimbursement contract is contemplated 
unless--
    (a) Waived by the procurement officer; or
    (b) The successful offeror represents in its offer that it is 
totally immune from tort liability as a State agency or as a charitable 
institution.

[65 FR 54440, Sept. 8, 2000, as amended at 80 FR 12944, Mar. 12, 2015]



1828.311-2  Agency solicitation provisions and contract clauses.



1828.311-270  NASA solicitation provisions and contract clauses.

    (a) The contracting officer must insert the clause at 1852.228-71, 
Aircraft Flight Risks, in all cost-reimbursement contracts for the 
development, production, modification, maintenance, or overhaul of 
aircraft, or otherwise involving the furnishing of aircraft to the 
contractor, except when the aircraft are covered by a separate bailment.
    (b) The contracting officer must insert the provision at 1852.228-
80, Insurance--Immunity from Tort Liability, in solicitations for 
research and development when a cost-reimbursement contract is 
contemplated.
    (c) The contracting officer must insert FAR clause 52.228-7 and the 
associated clause at 1852.228-81, Insurance--Partial Immunity From Tort 
Liability, when the successful offeror represents in its offer that the 
offeror is partially immune from tort liability as a State agency or as 
a charitable institution.
    (d) The contracting officer must insert the clause at 1852.228-82, 
Insurance--Total Immunity From Tort Liability, when the successful 
offeror represents in its offer that the offeror is totally immune from 
tort liability as a State agency or as a charitable institution.

[65 FR 54440, Sept. 8, 2000]



1828.370  Fixed-price contract clauses.

    (a) The contracting officer shall insert the clause at 1852.228-70, 
Aircraft Ground and Flight Risk, in all negotiated fixed-price contracts 
for the development, production, modification, maintenance, or overhaul 
of aircraft, or otherwise involving the furnishing of aircraft to the 
contractor, except as provided in paragraph (b) of this section, unless 
the aircraft are covered by a separate bailment. See the clause preface 
for directions for modifying the clause to accommodate various 
circumstances.
    (b) The Government need not assume the risk of aircraft damage, 
loss, or destruction as provided by the clause at 1852.228-70 if the 
best estimate of premium costs that would be included in the contract 
price for insurance coverage for such damage, loss, or destruction at 
any plant or facility is less than $500. If it is determined not to 
assume this risk, the clause at 1852.228-70 shall not be made a part of 
the contract, and the cost of necessary insurance to be obtained by the 
contractor to cover this risk shall be considered in establishing the 
contract price. In such cases, however, if performance of the contract 
is expected to involve the flight of Government-furnished aircraft, the 
substance of the clause at 1852.228-71, Aircraft Flight Risks, suitably 
adapted for use in a fixed-price contract, shall be used.
    (c) When the clause at 1852.228-70 is used, the term ``Contractor's 
premises'' shall be expressly defined in the contract Schedule and shall 
be limited to places where aircraft may be located during the 
performance of the contract. Contractor's premises may include, but are 
not limited to, those owned or leased by the contractor or those for 
which the contractor has a

[[Page 223]]

permit, license, or other right of use either exclusively or jointly 
with others, including Government airfields.



1828.371  Clauses incorporating cross-waivers of liability for 
International Space Station activities and Science or Space Exploration
activities unrelated to the International Space Station.

    (a) In contracts covering International Space Station activities, or 
Science or Space Exploration activities unrelated to the International 
Space Station that involve a launch, NASA shall require the contractor 
to agree to waive all claims against any entity or person defined in the 
clause based on damage arising out of Protected Space Operations. This 
cross-waiver shall apply only if the person, entity, or property causing 
the damage is involved in Protected Space Operations and the person, 
entity, or property damaged is damaged by virtue of its involvement in 
Protected Space Operations. The cross-waivers will require the 
contractor to extend the cross-waiver provisions to their subcontractors 
at any tier and related entities ensuring those subcontractors and 
related entities also waive all claims against any entity or person 
defined in the clause for damages arising out of Protected Space 
Operations. The purpose of the clauses prescribed in this section is to 
extend the cross-waivers under other agreements to NASA contractors that 
perform work in support of NASA's obligations under these agreements.
    (b) The contracting officer shall insert the clause at 1852.228-78, 
Cross-Waiver of Liability for Science or Space Exploration Activities 
unrelated to the International Space Station, in solicitations and 
contracts above the simplified acquisition threshold for the acquisition 
of launches for science or space exploration activities unrelated to the 
International Space Station or for acquisitions for science or space 
exploration activities that are not related to the International Space 
Station but involve a launch. If a science or space exploration activity 
is in support of the International Space Station, the contracting 
officer shall insert the clause prescribed by paragraph (c) of this 
section and designate its application to that particular launch.
    (c) The contracting officer shall insert the clause at 1852.228-76, 
Cross-Waiver of Liability for International Space Station Activities, in 
solicitations and contracts above the simplified acquisition threshold 
when the work to be performed involves Protected Space Operations, as 
that term is defined in the clause, relating to the International Space 
Station.
    (d) At the contracting officer's discretion, the clauses prescribed 
by paragraphs (b) and (c) of this section may be used in solicitations, 
contracts, new work modifications, or extensions to existing contracts 
under the simplified acquisition threshold involving science or space 
exploration activities unrelated to the International Space Station, or 
International Space Station activities, respectively, in appropriate 
circumstances. Examples of such circumstances are when the value of 
contractor property on a Government installation used in performance of 
the contract is significant, or when it is likely that the contractor or 
subcontractor will have its valuable property exposed to risk or damage 
caused by other participants in the science or space exploration 
activities unrelated to the International Space Station, or 
International Space Station activities.

[77 FR 59341, Sept. 27, 2012]



1828.372  Clause for minimum insurance coverage.

    In accordance with FAR 28.306(b) and 28.307, the contracting officer 
may insert a clause substantially as stated at 1852.228-75, Minimum 
Insurance Coverage, in fixed-price solicitations and in cost-
reimbursement contracts. The contracting officer may modify the clause 
to require additional coverage, such as vessel liability, and higher 
limits if appropriate for a particular acquisition.

[[Page 224]]



PART 1830_COST ACCOUNTING STANDARDS ADMINISTRATION--Table of Contents



 Subpart 1830.70_Facilities Capital Employed for Facilities in Use and 
                    For Facilities Under Construction

Sec.
1830.7001 Facilities capital employed for facilities in use.
1830.7001-1--1830.7001-3 [Reserved]
1830.7001-4 Postaward FCCOM applications.
1830.7002 Facilities capital employed for facilities under construction.
1830.7002-1 Definitions.
1830.7002-2 Cost of money calculations.
1830.7002-3 Representative investment calculations.
1830.7002-4 Determining imputed cost of money.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55767, Oct. 29, 1996, unless otherwise noted.



 Subpart 1830.70_Facilities Capital Employed for Facilities in Use and 
                    For Facilities Under Construction



1830.7001  Facilities capital employed for facilities in use.



1830.7001-1--1830.7001-3  [Reserved]



1830.7001-4  Postaward FCCOM applications.

    (a) Interim billings based on costs incurred. (1) The contractor may 
include FCCOM in cost reimbursement and progress payment invoices. To 
determine the amount that qualifies as cost incurred, multiply the 
incurred portions of the overhead pool allocation bases by the latest 
available cost of money factors. These FCCOM calculations are interim 
estimates subject to adjustment.
    (2) As actual cost of money factors are finalized, use the new 
factors to calculate FCCOM for the next accounting period.
    (b) Final settlements. (1) Contract FCCOM for final cost 
determination or repricing is based on each year's final cost of money 
factors determined under CAS 414 and supported by separate Forms CASB-
CMF.
    (2) Separately compute contract FCCOM in a manner similar to yearly 
final overhead rates. As in overhead rates, include in the final 
settlement an adjustment from interim to final contract FCCOM. Do not 
adjust the contract estimated or target cost.



1830.7002  Facilities capital employed for facilities under construction.



1830.7002-1  Definitions.

    (a) Cost of money rate is either--
    (1) The interest rate determined by the Secretary of the Treasury 
under Public Law 92-41 (85 Stat. 97); or
    (2) The time-weighted average of such rates for each cost accounting 
period during which the capital asset is being constructed, fabricated, 
or developed.
    (b) Representative investment is the calculated amount considered 
invested by the contractor during the cost accounting period to 
construct, fabricate, or develop the capital asset.



1830.7002-2  Cost of money calculations.

    (a) The interest rate referenced in 1830.7002-1(a)(1) is established 
semi-annually and published in the Federal Register during the fourth 
week of December and June.
    (b) To calculate the time-weighted average interest rate referenced 
in 1830.7002-1(a)(2), multiply the rates in effect during the months of 
construction by the number of months each rate was in effect, and then 
divide the sum of the products by the total number of months.



1830.7002-3  Representative investment calculations.

    (a) The calculation of the representative investment requires 
consideration of the rate or expenditure pattern of the costs to 
construct, fabricate, or develop a capital asset.
    (b) If the majority of the costs were incurred toward the beginning, 
middle, or end of the cost accounting period, the contractor shall 
either:
    (1) Determine a representative investment for the cost accounting 
period by calculating the average of the month-end balances for that 
cost accounting period; or
    (2) Treat month-end balances as individual representative 
investments.

[[Page 225]]

    (c) If the costs were incurred in a fairly uniform expenditure 
pattern throughout the construction, fabrication, or development period, 
the contractor may either:
    (1) Determine a representative investment for the cost accounting 
period by averaging the beginning and ending balances of the 
construction, fabrication, or development cost account for the cost 
accounting period; or
    (2) Treat month-end balances as individual representative 
investments.
    (d) The method chosen by the contractor to determine the 
representative investment amount may be different for each capital asset 
being constructed, fabricated, or developed, provided the method fits 
the expenditure pattern of the costs incurred.



1830.7002-4  Determining imputed cost of money.

    (a) Determine the imputed cost of money for an asset under 
construction, fabrication, or development by applying a cost of money 
rate (see 1830.7002-2) to the representative investment (see 1830.7002-
3).
    (1) When a representative investment is determined for a cost 
accounting period in accordance with 1830.7002-3(b)(1) or 1830.7002-
3(c)(1), the cost of money rate shall be the time-weighted average rate.
    (2) When a monthly representative investment is used in accordance 
with 1830.7002-3(b)(2) or 1830.7002-3(c)(2), the cost of money rate 
shall be that in effect each month. Under this method, the FCCOM is 
determined monthly, and the total for the cost accounting period is the 
sum of the monthly calculations.
    (b) The imputed cost of money will be capitalized only once in any 
cost accounting period, either at the end of the accounting period or 
the end of the construction, fabrication, or development period, 
whichever comes first.
    (c) When the construction, fabrication, or development of an asset 
takes more than one accounting period, the cost of money capitalized for 
the first accounting period will be included in determining the 
representative investment for any future cost accounting periods.



PART 1831_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents



         Subpart 1831.2_Contracts With Commercial Organizations

Sec.
1831.205 Selected costs.
1831.205-70 Contract clause.
1831.205-671 Solicitation provision.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55768, Oct. 29, 1996, unless otherwise noted.



         Subpart 1831.2_Contracts with Commercial Organizations



1831.205  Selected costs.



1831.205-70  Contract clause.

    The contracting officer must insert the clause at 1852.231-70, 
Precontract Costs, in contracts for which specific coverage of 
precontract costs is authorized.

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 46628, July 31, 2000; 
69 FR 35271, June 24, 2004]



1831.205-671  Solicitation provision.

    The contracting officer must insert a provision substantially the 
same as the provision at 1852.231-71, Determination of Compensation, in 
solicitations for services which contemplate the award of a cost 
reimbursement or non-competitive fixed-price type service contract 
having a total potential value expected to exceed the threshold for 
requiring certified cost and pricing data as set forth in FAR 15.403-4.

[62 FR 4467, Jan. 30, 1997, as amended at 65 FR 46628, July 31, 2000; 80 
FR 12944, Mar. 12, 2015]



PART 1832_CONTRACT FINANCING--Table of Contents



Sec.

          Subpart 1832.1_Non-Commercial Item Purchase Financing

1832.111 Contract clauses for non-commercial purchases.
1832.111-70 NASA contract clause.

[[Page 226]]

            Subpart 1832.2_Commercial Item Purchase Financing

1832.202-1 Policy.
1832.206 Solicitation provisions and contract clauses.

        Subpart 1832.4_Advance Payments For Non-Commercial Items

1832.412 Contract clause.
1832.412-70 NASA Contract clauses.

             Subpart 1832.5_Progress Payments Based on Costs

1832.501 General.
1832.501-1 Customary progress payment rates.
1832.502-4 Contract clauses.
1832.502-470 NASA contract clause.

                     Subpart 1832.7_Contract Funding

1832.705 Contract clauses.
1832.705-2 Clauses for limitation of cost or funds.
1832.705-270 NASA clauses for limitation of cost or funds.

                      Subpart 1832.9_Prompt Payment

1832.908 Contract clauses.
1832.908-70 Submission of vouchers.

               Subpart 1832.10_Performance-Based Payments

1832.1005 Contract clauses.
1832.1009 Title.

                Subpart 1832.11_Electronic Funds Transfer

1832.1110 Solicitation provision and contract clauses.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55768, Oct. 29, 1996, unless otherwise noted.



          Subpart 1832.1_Non-Commercial Item Purchase Financing



1832.111  Contract clauses for non-commercial purchases.



1832.111-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.232-79, 
Payment for On-Site Preparatory Costs, in solicitations and contracts 
for construction on a fixed-price basis when progress payments are 
contemplated and pro rata payment of on-site preparatory costs to the 
contractor is appropriate.



            Subpart 1832.2_Commercial Item Purchase Financing



1832.202-1  Policy. (NASA supplements paragraph (b))

    (b)(6) Advance payment limitations do not apply to expendable launch 
vehicle (ELV) service contracts.

[61 FR 55768, Oct. 29, 1996, as amended at 69 FR 35271, June 24, 2004]



1832.206  Solicitation provisions and contract clauses. (NASA supplements
paragraph (g))

    (g)(2) The installment payment rate shall be that which is common in 
the commercial marketplace for the purchased item. If there is no 
commonly used rate, the contracting officer shall determine the 
appropriate rate. In no case shall the rate exceed that established in 
the clause at FAR 52.232-30.



        Subpart 1832.4_Advance Payments for Non-Commercial Items



1832.412  Contract clause. (NASA supplement paragraphs (e) and (f))

    (e) The contracting officer shall use Alternates IV and V when 
advance payments are provided on Phase I contracts of the Small Business 
Innovation Research (SBIR) or Small Business Technology Transfer (STTR) 
programs.
    (f) See 1832.412(e).

[63 FR 14040, Mar. 24, 1998]



1832.412-70  NASA Contract clauses.

    When the clause at FAR 52.232-12 or its Alternates II or V are used, 
insert the clause at 1852.232-70, NASA Modification of FAR 52.232-12.

[63 FR 14040, Mar. 24, 1998]



             Subpart 1832.5_Progress Payments Based on Costs



1832.501  General.



1832.501-1  Customary progress payment rates. (NASA supplements paragraph (a))

    (a) The customary progress payment rate for all NASA contracts is 85 
percent for large business, 90 percent for

[[Page 227]]

small business, 95 percent for small disadvantaged business, and 100 
percent for Phase II contracts in the Small Business Innovation Research 
(SBIR) and Small Business Technology Transfer (STTR) programs. The 
contracting officer shall insert the applicable percentage in paragraphs 
(a) and (b) of the clause at FAR 52.232-16.



1832.502-4  Contract clauses.



1832.502-470  NASA contract clause.

    The contracting officer may insert a clause substantially as stated 
at 1852.232-82, Submission of Requests for Progress Payments, in fixed-
price solicitations and contracts that provide for progress payments. 
The recipient of the requests and number of copies may be changed as 
required.



                     Subpart 1832.7_Contract Funding



1832.705  Contract clauses.



1832.705-2  Clauses for limitation of cost or funds.



1832.705-270  NASA clauses for limitation of cost or funds.

    (a) The contracting officer shall insert the clause at 1852.232-77, 
Limitation of Funds (Fixed-Price Contract), in solicitations and 
contracts for fixed-price, incrementally-funded contracts or task 
orders.
    (b) The contracting officer shall insert a clause substantially as 
stated at 1852.232-81, Contract Funding, in Section B of solicitations 
and contracts containing the clause at FAR 52.232-22, Limitation of 
Funds. Insert the amounts of funds available for payment, the items 
covered, and the applicable period of performance. The amount obligated 
for fee in paragraph (b) of the clause should always be sufficient to 
pay fee anticipated to be earned for the work funded by the amount in 
paragraph (a) of the clause.

[61 FR 55768, Oct. 29, 1996, as amended at 80 FR 12944, Mar. 12, 2015]



                      Subpart 1832.9_Prompt Payment

    Source: 81 FR 63145, Sept. 14, 2016, unless otherwise noted.



1832.908  Contract clauses.

    (c)(2) When the clause at FAR 52.232-25, Prompt Payment, is used in 
such contracts with the Canadian Commercial Corporation (CCC), insert 
``17th'' in lieu of ``30th'' in paragraphs (a)(1)(i)(A) and (B) and 
(a)(1)(ii).

[81 FR 63145, Sept. 14, 2016, as amended at 81 FR 71638, Oct. 18, 2016]



1832.908-70  Submission of vouchers.

    Insert clause 1852.232-80, Submission of Vouchers for Payment, in 
all cost-reimbursement solicitations and contracts.



               Subpart 1832.10_Performance-Based Payments



1832.1005  Contract clauses. (NASA supplements paragraph (a))

    (a) If the contract is for launch services, the contracting officer 
shall delete paragraph (f) of the clause at FAR 52.232-32 in accordance 
with 1832.1009.

[61 FR 55768, Oct. 29, 1996, as amended at 65 FR 31103, May 16, 2000; 69 
FR 35271, June 24, 2004]



1832.1009  Title.

    In accordance with 42 U.S.C. 2465d, NASA shall not take title to 
launch vehicles under contracts for launch services unless one of the 
exceptions in the law applies. However, the law does not eliminate 
NASA's right to take title to other property acquired or produced by the 
contractor under a contract containing a title provision.



                Subpart 1832.11_Electronic Funds Transfer



1832.1110  Solicitation provision and contract clauses. (NASA supplements
paragraphs (a), (b), and (c)).

    (a) [Reserved]
    (b) In accordance with FAR 32.1106(b), the use of a nondomestic EFT 
mechanism is authorized. When a nondomestic EFT mechanism is used, the 
contracting officer shall replace the paragraph at FAR 52.232-34(c) with 
a

[[Page 228]]

description of the EFT mechanism that will be used for the contract.

[64 FR 18373, Apr. 14, 1999, as amended at 69 FR 35271, June 24, 2004; 
80 FR 12944, Mar. 12, 2015]



PART 1833_PROTESTS, DISPUTES, AND APPEALS--Table of Contents



                         Subpart 1833.1_Protests

Sec.
1833.103 Protests to the agency.
1833.106-70 Solicitation provision.

                   Subpart 1833.2_Disputes and Appeals

1833.215 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 61 FR 55771, Oct. 29, 1996, unless otherwise noted.



                         Subpart 1833.1_Protests



1833.103  Protests to the agency.

    (d)(4) The provision at 1852.233-70 provides for an alternative to a 
protest to the United States Government Accountability Office (GAO). 
This alternative gives bidders or offerors the ability to protest 
directly to the contracting officer (CO) or to request an independent 
review by the Assistant Administrator for Procurement (or designee). The 
Agency review shall be deemed to be at the CO level when the request is 
silent as to the level of review desired. The Agency review shall be 
deemed to be at the level of the Assistant Administrator for Procurement 
(or designee) when the request specifies a level above the CO, even if 
the request does not specifically request an independent review by the 
Assistant Administrator for Procurement. Such reviews are separate and 
distinct from the Ombudsman Program described at 1815.7001.
    (e) NASA shall summarily dismiss and take no further action upon any 
protest to the Agency if the substance of the protest is pending in 
judicial proceedings or the protester has filed a protest on the same 
acquisition with the GAO prior to receipt of an Agency protest decision.
    (4) When a bidder or offeror submits an Agency protest to the CO or 
alternatively requests an independent review by the Assistant 
Administrator for Procurement, the decision of the CO or the Assistant 
Administrator for Procurement shall be final and is not subject to any 
appeal or reconsideration within NASA.

[80 FR 36721, June 26, 2015]



1833.106-70  Solicitation provision.

    The contracting officer shall insert the provision at 1852.233-70 in 
all solicitations.

[62 FR 11108, Mar. 11, 1997, as amended at 80 FR 36722, June 26, 2015]



                   Subpart 1833.2_Disputes and Appeals



1833.215  Contract clause.

    The contracting officer shall use the clause at FAR 52.233-1, 
Disputes, with its Alternate I whenever continued performance is vital 
to national security, the public health and welfare, important Agency 
programs, or other essential supplies or services whose timely 
reprocurement from other sources would be impracticable.

[61 FR 55771, Oct. 29, 1996, as amended at 80 FR 36722, June 26, 2015]

[[Page 229]]



             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING





PART 1834_MAJOR SYSTEM ACQUISITION--Table of Contents



              Subpart 1834.2_Earned Value Management System

Sec.
1834.201 Policy.
1834.203 Solicitation provisions and contract clause.
1834.203-70 NASA solicitation provision and contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 71 FR 66120, Nov. 13, 2006, unless otherwise noted.



              Subpart 1834.2_Earned Value Management System



1834.201  Policy.

    (a) NASA requires use of an Earned Value Management System (EVMS) on 
contracts for development or production work, including development or 
production work for flight and ground support systems and components, 
prototypes, and institutional investments (facilities, IT 
infrastructure, etc.) as specified below:
    (1) For cost or fixed-price incentive contracts and subcontracts 
valued at $50 Million or more the contractor shall have an EVMS that has 
been determined by the cognizant Federal agency to be in compliance with 
the guidelines in the American National Standards Institute/Electronic 
Industries Alliance Standard 748, Earned Value Management Systems (ANSI/
EIA-748).
    (2) For cost or fixed-price incentive contracts and subcontracts 
valued at $20 Million or more but less than $50 Million, the contractor 
shall have an EVMS that complies with the guidelines in ANSI/EIA-748, as 
determined by the cognizant Contracting Officer.
    (3) For cost or fixed-price incentive contracts and subcontracts 
valued at less than $20 Million the application of Earned Value 
Management (EVM) is optional and is a risk-based decision at the 
discretion of the program/project manager.
    (b) Requiring EVM for firm-fixed-price (FFP) contracts and 
subcontracts of any dollar value is discouraged; however, an Integrated 
Master Schedule (IMS) and adequate reporting shall be required to plan 
and track schedule performance for development or production contracts 
valued at $20 Million or more. In addition, for FFP contracts that are 
part of a program/project of $50 Million or more, the contracting 
officer shall collaborate with the government's program/project manager 
to ensure the appropriate data can be obtained or generated to fulfill 
program management needs and comply with NASA Procedural Requirements 
(NPR) 7120.5.
    (c) An EVMS is not required on non-developmental contracts for 
engineering support services, steady state operations, basic and applied 
research, and routine services such as janitorial services or grounds 
maintenance services.
    (d) Contracting officers shall request the assistance of the 
cognizant Defense Contract Management Agency (DCMA) office and the 
applicable NASA Center EVM Focal Point (http://evm.nasa.gov/
council.html) in determining the adequacy of proposed EVMS plans and 
procedures and system compliance.
    (e) Notwithstanding the EVMS requirements above, if an offeror 
proposes to use a system that has not been determined to be in 
compliance with the ANSI/EIA Standard-748, Earned Value Management 
Systems, the offeror shall submit a comprehensive plan for compliance 
with these EVMS standards, as specified in 1852.234-1, Notice of Earned 
Value Management System. Offerors shall not be eliminated from 
consideration for contract award because they do not have an EVMS that 
complies with these standards.
    (f) As a minimum, and in accordance with NPD 7120.5, requirements 
initiators shall ensure that EVMS monthly reports are included as a 
deliverable in the acquisition package provided to the procurement 
office for implementation into contracts where EVMS applies. 
Additionally, the acquisition package shall include a Contract 
Performance Report (CPR), IMS and a

[[Page 230]]

Work Breakdown Structure (WBS) and the appropriate data requirements 
descriptions (DRDs) for implementation into the contract.

[76 FR 40280, July 8, 2011, as amended at 80 FR 12944, Mar. 12, 2015]



1834.203  Solicitation provisions and contract clause.

    The FAR EVMS solicitation provisions and contract clause are not 
used in NASA contracts. See 1834.203-70 for the NASA EVMS solicitation 
provision and contract clause.



1834.203-70  NASA solicitation provision and contract clause.

    Except for firm-fixed price contracts and the contracts identified 
in 1834.201(c), the contracting officer shall insert--
    (a) The provision at 1852.234-1, Notice of Earned Value Management 
System, in solicitations for contracts for--
    (1) Development or production, including flight and ground support 
projects, and institutional projects (facility, IT investment, etc.), 
with a value exceeding $20M; and
    (2) Acquisitions of any value designated as major by the project 
manager in accordance with OMB Circular A-11; and
    (b) The clause at 1852.234-2, Earned Value Management System, in 
solicitations and contracts with a value exceeding $50M that include the 
provision at 1852.234-1. The contracting officer shall use the clause 
with its Alternate I when the contract value is less than $50M.

[71 FR 66120, Nov. 13, 2006, as amended at 76 FR 40281, July 8, 2011; 80 
FR 12944, Mar. 12, 2015]



PART 1835_RESEARCH AND DEVELOPMENT CONTRACTING--Table of Contents



Sec.
1835.016-70 Foreign participation under broad agency announcements 
          (BAAs).
1835.016-71 NASA Research Announcements.
1835.070 NASA contract clauses and solicitation provision.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 4469, Jan. 30, 1997, unless otherwise noted.



1835.016-70  Foreign participation under broad agency announcements (BAAs).

    (a) Policy. (1) NASA seeks the broadest participation in response to 
broad agency announcements, including foreign proposals or proposals 
including foreign participation. NASA's policy is to conduct research 
with foreign entities on a cooperative, no-exchange-of-funds basis (see 
NPD 1360.2, Initiation and Development of International Cooperation in 
Space and Aeronautics Programs). NASA does not normally fund foreign 
research proposals or foreign research efforts that are part of U.S. 
research proposals. Rather, cooperative research efforts are implemented 
via international agreements between NASA and the sponsoring foreign 
agency or funding/sponsoring institution under which the parties agree 
to each bear the cost of discharging their respective responsibilities.
    (2) In accordance with the National Space Transportation Policy, use 
of a non-U.S. manufactured launch vehicle is permitted only on a no-
exchange-of-funds basis.
    (3) NASA funding may not be used for subcontracted foreign research 
efforts. The direct purchase of supplies and/or services, which do not 
constitute research, from non-U.S. sources by U.S. award recipients is 
permitted.

[64 FR 48561, Sept. 7, 1999, as amended at 69 FR 35272, June 24, 2004]



1835.016-71  NASA Research Announcements.

    (a) Scope. An NRA is used to announce research interests in support 
of NASA's programs, and, after peer or scientific review using factors 
in the NRA, select proposals for funding. Unlike an RFP containing a 
statement of work or specification to which offerors are to respond, an 
NRA provides for the submission of competitive project ideas, conceived 
by the offerors, in one or more program areas of interest. An

[[Page 231]]

NRA shall not be used when the requirement is sufficiently defined to 
specify an end product or service.

[62 FR 4469, Jan. 30, 1997, as amended at 62 FR 14017, Mar. 25, 1997; 63 
FR 9967, Feb. 27, 1998. Redesignated and amended at 64 FR 48561, Sept. 
7, 1999; 65 FR 12485, Mar. 9, 2000; 65 FR 46628, July 31, 2000; 65 FR 
82297, Dec. 28, 2000; 66 FR 53547, Oct. 23, 2001; 67 FR 30604, May 7, 
2002; 69 FR 35272, June 24, 2004]



1835.070  NASA contract clauses and solicitation provision.

    (a) The contracting officer shall insert the clause at 1852.235-70, 
Center for AeroSpace Information, in all research and development 
contracts, and interagency agreements and cost-reimbursement supply 
contracts involving research and development work.
    (b) The contracting officer shall insert the clause at 1852.235-71, 
Key Personnel and Facilities, in contracts when source selection has 
been substantially predicated upon the possession by a given offeror of 
special capabilities, as represented by key personnel or facilities.
    (c) The contracting officer shall ensure that the provision at 
1852.235-72, Instructions for Responding to NASA Research Announcements, 
is inserted in all NRAs. The instructions may be supplemented, but only 
to the minimum extent necessary.
    (d) The contracting officer shall insert the clause at 1852.235-73, 
Final Scientific and Technical Reports, in all research and development 
contracts, and in interagency agreements and cost-reimbursement supply 
contracts involving research and development work.
    (1) The contracting officer, after consultation with and concurrence 
of the program or project manager and the center Export Control 
Administrator, shall insert the clause with its Alternate I when the 
contract includes ``fundamental research'' as defined at 22 CFR 
120.11(8) and no prior review of data, including the final report, 
produced during the performance of the contract is required for export 
control or national security purposes before the contractor may publish, 
release, or otherwise disseminate the data.
    (2) The contracting officer, after consultation with and concurrence 
by the program or project manager and where necessary the center Export 
Control Administrator, shall insert the clause with its Alternate II, 
when prior review of all data produced during the performance of the 
contract is required before the contractor may publish, release, or 
otherwise disseminate the data. For example, when data produced during 
performance of the contract may be subject to export control, national 
security restrictions, or other restrictions designated by NASA; or, to 
the extent the contractor receives or is given access to data that 
includes restrictive markings, may include proprietary information of 
others.
    (3) Except when Alternate II applies in accordance with paragraph 
(d)(2) of this section, the contracting officer shall insert the clause 
with its Alternate III in all SBIR and STTR contracts.
    (e) The contracting officer shall insert a clause substantially the 
same as the clause at 1852.235-74, Additional Reports of Work--Research 
and Development, in all research and development contracts, and in 
interagency agreements and cost-reimbursement supply contracts involving 
research and development work, when periodic reports, such as monthly or 
quarterly reports, or reports on the completion of significant units or 
phases of work are required for monitoring contract performance. The 
clause should be modified to reflect the reporting requirements of the 
contract and to indicate the timeframe for submission of the final 
report.

[68 FR 5231, Feb. 3, 2003, as amended at 70 FR 2022, Jan. 12, 2005]



PART 1836_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS--Table of Contents



     Subpart 1836.2_Special Aspects of Contracting for Construction

Sec.
1836.203 Government estimate of construction costs.
1836.213-370 Additive and deductive items.

                     Subpart 1836.5_Contract Clauses

1836.513 Accident prevention.
1836.570 NASA solicitation provisions and contract clause.

[[Page 232]]

               Subpart 1836.6_Architect-Engineer Services

1836.602 Selection of firms for architect-engineer contracts.
1836.602-1 Selection criteria.

                       Subpart 1836.70_Partnering

1836.7004 NASA solicitation provision and contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 4471, Jan. 30, 1997, unless otherwise noted.



     Subpart 1836.2_Special Aspects of Contracting for Construction



1836.203  Government estimate of construction costs.(NASA supplements
paragraph (c))

    (c)(i) If the acquisition is by sealed bidding, the contracting 
officer shall file a sealed copy of the detailed Government estimate 
with the bids until bid opening. After the bids are read and recorded, 
the contracting officer shall read the estimate, and record it in the 
same detail as the bids.
    (ii) If the acquisition is by negotiation, the contracting officer 
may disclose the overall amount of the Government estimate after award 
upon request of offerors.



1836.213-370  Additive and deductive items.

    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 invitation for bids for a first 
or base bid item covering the work generally as specified and one or 
more additive or deductive bid items progressively adding or omitting 
specified features of the work in a stated order of priority. In such 
case, the contracting officer, before the opening of bids, shall record 
in the contract file the amount of funds available for the project and 
determine the low bidder and the items to be awarded in accordance with 
the provision at 1852.236-71, Additive or Deductive Items.

[62 FR 36721, July 9, 1997. Redesignated at 64 FR 5621, Feb. 4, 1999]



                     Subpart 1836.5_Contract Clauses



1836.513  Accident prevention.

    For additional guidance on the use of FAR clause 52.236-13, Accident 
Prevention, and its Alternate I in NASA contracts, see 1823.7001(d).

[80 FR 36722, June 26, 2015]



1836.570  NASA solicitation provisions and contract clause.

    (a) The contracting officer shall insert the provision at 1852.236-
71, Additive or Deductive Items, in invitations for bids for 
construction when it is desired to add or deduct bid items to meet 
available funding.
    (b) The contracting officer shall insert the provision at 1852.236-
72, Bids with Unit Prices, in invitations for bids for construction when 
the invitation contemplates unit prices of items.
    (c) The contracting officer shall insert the clause at 1852.236-73, 
Hurricane Plan, in solicitations and contracts for construction at sites 
that experience hurricanes.
    (d) The contracting officer shall insert the provision at 1852.236-
74, Magnitude of Requirement, in solicitations for construction. Insert 
the appropriate estimated dollar range in accordance with FAR 36.204.



               Subpart 1836.6_Architect-Engineer Services



1836.602  Selection of firms for architect-engineer contracts.



1836.602-1  Selection criteria. (NASA supplements paragraph (a))

    (a)(2) The evaluation of specialized experience and technical 
competence shall be limited to the immediately preceding ten years.
    (4) The evaluation of past performance shall be limited to the 
immediately preceding ten years.
    (6) The architect-engineer selection board may also establish 
evaluation criteria regarding the volume of work previously awarded to 
the firm by NASA, with the object of effecting an equitable distribution 
of contracts among qualified architect-engineer firms, including 
minority-owned firms

[[Page 233]]

and firms that have not had prior NASA contracts.

[62 FR 4471, Jan. 30, 1997, as amended at 66 FR 53548, Oct. 23, 2001]



                       Subpart 1836.70_Partnering



1836.7004  NASA solicitation provision and contract clause.

    The contracting officer may insert a clause substantially the same 
as stated at 1852.236-75, Partnering for Construction Contracts, in 
solicitations and contracts for construction, when it has been 
determined that the benefits to be derived from partnering exceed the 
costs.

    Source: 63 FR 44170, Aug. 18, 1998, unless otherwise noted.



PART 1837_SERVICE CONTRACTING--Table of Contents



                Subpart 1837.1_Service Contracts_General

Sec.
1837.101 Definitions.
1837.104 Personal services contracts.
1837.110 Solicitation provisions and contract clauses.
1837.110-70 NASA solicitation provision and contract clauses.
1837.170 Pension portability.

             Subpart 1837.2_Advisory and Assistance Services

1837.203 Policy.
1837.203-70 Providing contractors access to sensitive information.
1837.303-71 Release of contractors' sensitive information.
1837.203-72 NASA contract clauses.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 4472, Jan. 30, 1997, unless otherwise noted.



                Subpart 1837.1_Service Contracts_General



1837.101  Definitions.

    Pension portability means the recognition and continuation in a 
successor service contract of the predecessor service contract 
employees' pension rights and benefits.



1837.104  Personal services contracts. (NASA supplements paragraph (b))

    (b) Section 203(c)(9) of the National Aeronautics and Space Act of 
1958 (42 U.S.C. 2473(c)(9)) authorizes NASA ``to obtain services as 
authorized by Section 3109 of Title 5, United States Code.'' It is NASA 
policy to obtain the personal services of experts and consultants by 
appointment rather than by contract. The policies, responsibilities, and 
procedures pertaining to the appointment of experts and consultants are 
in NPR 3300.1, Appointment of Personnel To/From NASA, Chapter 4, 
Employment of Experts and Consultants.

[62 FR 4472, Jan. 30, 1997, as amended at 64 FR 12485, Mar. 9, 2000; 66 
FR 53548, Oct. 23, 2001; 69 FR 63459, Nov. 2, 2004]



1837.110  Solicitation provisions and contract clauses.



1837.110-70  NASA solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at 1852.237-70, 
Emergency Evacuation Procedures, in solicitations and contracts for on-
site support services where emergency evacuations of the NASA 
installation may occur, e.g., snow, hurricanes, tornadoes, earthquakes, 
or other emergencies.
    (b) The contracting officer shall insert the clause at 1852.237-71, 
Pension Portability, in solicitations, contracts or negotiated contract 
modifications for additional work when the procurement officer makes the 
determination in 1837.170(a)(2).

[62 FR 4472, Jan. 30, 1997, as amended at 62 FR 36721, July 9, 1997; 62 
FR 58688, Oct. 30, 1997]



1837.170  Pension portability.

    (a) It is NASA's policy not to require pension portability in 
service contracts. However, pension portability requirements may be 
included in solicitations, contracts, or contract modifications for 
additional work under the following conditions:
    (1)(i) There is a continuing need for the same or similar services 
for a minimum of five years (inclusive of options), and, if the 
contractor changes, a

[[Page 234]]

high percentage of the predecessor contractor's employees are expected 
to remain with the program; or
    (ii) The employees under a predecessor contract were covered by a 
portable pension plan, a follow-on contract or a contract consolidating 
existing services is awarded, and the total contract period covered by 
the plan covers a minimum of five years (including both the predecessor 
and successor contracts); and
    (2) The procurement officer determines in writing, with full 
supporting rationale, that such a requirement is in the Government's 
best interest. The procurement officer shall maintain a record of all 
such determinations.
    (b) When pension portability is required, the plan shall comply with 
the requirements of the clause at 1852.237-71, Pension Portability, (see 
1837.110-70(b)), and the contract shall also include a clear description 
of the plan, including service, pay, liabilities, vesting, termination, 
and benefits from prior contracts.



             Subpart 1837.2_Advisory and Assistance Services

    Source: 80 FR 43031, July 21, 2015, unless otherwise noted.



1837.203  Policy.

    (c) Advisory and assistance services of individual experts and 
consultants shall normally be obtained by appointment rather than by 
contract (see NPR 3300.1, Appointment of Personnel To/From NASA, Chapter 
4, Employment of Experts and Consultants).



1837.203-70  Providing contractors access to sensitive information.

    (a)(1) As used in this subpart, ``sensitive information'' refers to 
information that the contractor has developed at private expense or that 
the Government has generated that qualifies for an exception to the 
Freedom of Information Act, which is not currently in the public domain, 
may embody trade secrets or commercial or financial information, and may 
be sensitive or privileged, the disclosure of which is likely to have 
either of the following effects: To impair the Government's ability to 
obtain this type of information in the future; or to cause substantial 
harm to the competitive position of the person from whom the information 
was obtained. The term is not intended to resemble the markings of 
national security documents as in sensitive-secret-top secret.
    (2) As used in this subpart, ``requiring organization'' refers to 
the NASA organizational element or activity that requires specified 
services to be provided.
    (3) As used in this subpart, ``service provider'' refers to the 
service contractor that receives sensitive information from NASA to 
provide services to the requiring organization.
    (b)(1) To support management activities and administrative 
functions, NASA relies on numerous service providers. These contractors 
may require access to sensitive information in the Government's 
possession, which may be entitled to protection from unauthorized use or 
disclosure.
    (2) As an initial step, the requiring organization shall identify 
when needed services may entail access to sensitive information and 
shall determine whether providing access is necessary for accomplishing 
the Agency's mission. The requiring organization shall review any 
service provider requests for access to information to determine whether 
the access is necessary and whether the information requested is 
considered ``sensitive'' as defined in paragraph (a)(1) of this section.
    (c) When the requiring organization determines that providing 
specified services will entail access to sensitive information, the 
solicitation shall require each potential service provider to submit 
with its proposal a preliminary analysis of possible organizational 
conflicts of interest that might flow from the award of a contract. 
After selection, or whenever it becomes clear that performance will 
necessitate access to sensitive information, the service provider must 
submit a comprehensive organizational conflicts of interest avoidance 
plan.
    (d) This comprehensive plan shall incorporate any previous studies 
performed, shall thoroughly analyze all organizational conflicts of 
interest that might arise because the service provider has access to 
other companies'

[[Page 235]]

sensitive information, and shall establish specific methods to control, 
mitigate, or eliminate all problems identified. The contracting officer, 
with advice from Center counsel, shall review the plan for completeness 
and identify to the service provider substantive weaknesses and 
omissions for necessary correction. Once the service provider has 
corrected the substantive weaknesses and omissions, the contracting 
officer shall incorporate the revised plan into the contract, as a 
compliance document.
    (e) If the service provider will be operating an information 
technology system for NASA that contains sensitive information, the 
operating contract shall include the clause at 1852.204-76, Security 
Requirements for Unclassified Information Technology Resources, which 
requires the implementation of an Information Technology Security Plan 
to protect information processed, stored, or transmitted from 
unauthorized access, alteration, disclosure, or use.
    (f) NASA will monitor performance to assure any service provider 
that requires access to sensitive information follows the steps outlined 
in the clause at 1852.237-72, Access to Sensitive Information, to 
protect the information from unauthorized use or disclosure.



1837.203-71  Release of contractors' sensitive information.

    Pursuant to the clause at 1852.237-73, Release of Sensitive 
Information, offerors and contractors agree that NASA may release their 
sensitive information when requested by service providers in accordance 
with the procedures prescribed in 1837.203-70 and subject to the 
safeguards and protections delineated in the clause at 1852.237-72, 
Access to Sensitive Information. As required by the clause at 1852.237-
73, or other contract clause or solicitation provision, contractors must 
identify information they claim to be ``sensitive'' submitted as part of 
a proposal or in the course of performing a contract. The contracting 
officer shall evaluate all contractor claims of sensitivity in deciding 
how NASA should respond to requests from service providers for access to 
information.



1837.203-72  NASA contract clauses.

    (a) The contracting officer shall insert the clause at 1852.237-72, 
Access to Sensitive Information, in all solicitations and contracts for 
services that may require access to sensitive information belonging to 
other companies or generated by the Government.
    (b) The contracting officer shall insert the clause at 1852.237-73, 
Release of Sensitive Information, in all solicitations, contracts, and 
basic ordering agreements.



PART 1839_ACQUISITION OF INFORMATION TECHNOLOGY--Table of Contents



                         Subpart 1839.1_General

Sec.
1839.107 Contract clause.
1839.107-70 NASA contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 4473, Jan. 30, 1997, unless otherwise noted.



                         Subpart 1839.1_General



1839.107  Contract clause.

[62 FR 4473, Jan. 30, 1997. Redesignated at 62 FR 36721, July 9, 1997]



1839.107-70  NASA contract clause.

    (a)(1) The contracting officer shall insert the clause substantially 
as stated at 1852.239-70, Alternate Delivery Points, in solicitations 
and contracts for information technology when:
    (i) An indefinite delivery/indefinite quantity contract will be used 
or when the contract will include options for additional quantities; and
    (ii) Delivery is F.O.B. destination to the contracting activity.
    (2) When delivery is F.O.B. origin and Government bills of lading 
(GBL) are used, the contracting officer shall use the clause with its 
Alternate I.

[62 FR 4473, Jan. 30, 1997. Redesignated at 62 FR 36721, July 9, 1997]

[[Page 236]]



                    SUBCHAPTER G_CONTRACT MANAGEMENT



                          PART 1840 [RESERVED]



PART 1841_ACQUISITION OF UTILITY SERVICES--Table of Contents



    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 4474, Jan. 30, 1997, unless otherwise noted.

Subpart 1841.5 [Reserved]



PART 1842_CONTRACT ADMINISTRATION AND AUDIT SERVICES--Table of Contents



            Subpart 1842.70_Additional NASA Contract Clauses

Sec.
1842.7001 Denied access to NASA facilities.
1842.7002 Travel outside of the United States.
1842.7003 Emergency medical services and evacuation.

Subpart 1842.71 [Reserved]

     Subpart 1842.72_NASA Contractor Financial Management Reporting

1842.7201 General.
1842.7202 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14017, Mar. 25, 1997, unless otherwise noted.



            Subpart 1842.70_Additional NASA Contract Clauses



1842.7001  Denied access to NASA facilities.

    The contracting officer shall insert the clause at 1852.242-72, 
Denied Access to NASA Facilities, in solicitations and contracts where 
contractor personnel will be working onsite at a NASA facility such as: 
NASA Headquarters and NASA Centers, including Component Facilities and 
Technical and Service Support Centers. For a list of NASA facilities see 
NPD 1000.3 ``The NASA Organization''. The contracting officer shall not 
insert the clause where contractor personnel will be working onsite at 
the Jet Propulsion Laboratory including the Deep Space Network 
Communication Facilities (Goldstone, CA; Canberra, Australia; and 
Madrid, Spain).

[80 FR 52644, Sept. 1, 2015]



1842.7002  Travel outside of the United States.

    The contracting officer shall insert the clause at 1852.242-71, 
Travel Outside of the United States, in cost-reimbursement solicitations 
and contracts where a contractor may travel outside of the United States 
and it is appropriate to require Government approval of the travel.

[81 FR 24501, Apr. 26, 2016]



1842.7003  Emergency medical services and evacuation.

    The contracting officer must insert the clause at 1852.242-78, 
Emergency Medical Services and Evacuation, in all solicitations and 
contracts when employees of the contractor are required to travel 
outside the United States or to remote locations in the United States.

[81 FR 24501, Apr. 26, 2016]

Subpart 1842.71 [Reserved]



     Subpart 1842.72_NASA Contractor Financial Management Reporting



1842.7201  General.

    (a) [Reserved]
    (b) Reporting requirements. (1) Use of the NASA Contractor Financial 
Management Reports, the NASA form 533 series, is required on cost-type, 
price redetermination, and fixed-price incentive contracts when the 
following dollar, period of performance, and scope criteria are met:

----------------------------------------------------------------------------------------------------------------
        Contract value/scope           Period of performance             533M                      533Q
----------------------------------------------------------------------------------------------------------------
$500K to $999K......................  1 year or more.........  Required................  Optional.

[[Page 237]]

 
$1,000,000 and over.................  Less than 1 year.......  Required................  Optional.
$1,000,000 and over.................  1 year or more.........  Required................  Required.
----------------------------------------------------------------------------------------------------------------

    (2) When it is probable that a contract will ultimately meet the 
criteria in paragraph (b)(1) of this section through change orders, 
supplemental agreements, etc., the reporting requirement must be 
implemented in the contract based on the estimated final contract value 
at the time of award.

[62 FR 14017, Mar. 25, 1997, as amended at 69 FR 44609, July 27, 2004]



1842.7202  Contract clause.

    The contracting officer shall insert the clause at 1852.242-73, NASA 
Contractor Financial Management Reporting, in solicitations and 
contracts when any of the NASA Form 533 series of reports is required 
from the contractor.

[62 FR 36721, July 9, 1997]



PART 1843_CONTRACT MODIFICATIONS--Table of Contents



                      Subpart 1843.2_Change Orders

Sec.
1843.205 Contract clauses.
1843.205-70 NASA contract clauses.

                     Subpart 1843.71_Shared Savings

1843.7101 Shared Savings Program.
1843.7102 Solicitation provision and contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14022, Mar. 25, 1997, unless otherwise noted.



                      Subpart 1843.2_Change Orders



1843.205  Contract clauses.

    As authorized in the prefaces of clauses FAR 52.243-1, Changes--
Fixed Price; FAR 52.243-2, Changes--Cost Reimbursement; and FAR 52.243-
4, Changes; and in the prescription at 43.205(c) for FAR 52.243-3, 
Changes--Time-and-Material or Labor-Hours, the period within which a 
contractor must assert its right to an equitable adjustment may be 
varied not to exceed 60 calendar days.

[65 FR 58932, Oct. 3, 2000]



1843.205-70  NASA contract clauses.

    The contracting officer may insert a clause substantially as stated 
at 1852.243-72, Equitable Adjustments, in solicitations and contracts 
for--
    (a) Dismantling, demolishing, or removing improvements; or
    (b) Construction, when the contract amount is expected to exceed the 
simplified acquisition threshold and a fixed-price contract is 
contemplated.

[81 FR 75345, Oct. 31, 2016]



                     Subpart 1843.71_Shared Savings



1843.7101  Shared Savings Program.

    This subpart establishes and describes the methods for implementing 
and administering a Shared Savings Program. This program provides an 
incentive for contractors to propose and implement, with NASA approval, 
significant cost reduction initiatives. NASA will benefit as the more 
efficient business practices that are implemented lead to reduced costs 
on current and follow-on contracts. In return, contractors are entitled 
to share in cost savings subject to limits established in the contract. 
The contracting officer may require the contractor to provide periodic 
reporting, or other justification, or to require other steps (e.g., cost 
segregation) to ensure projected cost savings are being realized.



1843.7102  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 1852.243-71, 
Shared Savings, in all solicitations and contracts expected to exceed 
$1,000,000, except those awarded under FAR part 12, NRA and AO 
procedures, or the SBIR and STTR programs.

[[Page 238]]



PART 1844_SUBCONTRACTING POLICIES AND PROCEDURES--Table of Contents



                 Subpart 1844.2_Consent to Subcontracts

Sec.
1844.204 Contract clauses.
1844.204-70 NASA contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14023, Mar. 25, 1997, unless otherwise noted.



                 Subpart 1844.2_Consent to Subcontracts



1844.204  Contract clauses.



1844.204-70  NASA contract clause.

    The contracting officer shall insert the clause at 1852.244-70, 
Geographic Participation in the Aerospace Program, in all research and 
development solicitations and contracts of $500,000 or over that will be 
performed within the United States.



PART 1845_GOVERNMENT PROPERTY--Table of Contents



                         Subpart 1845.1_General

Sec.
1845.107 Contract clauses.
1845.107-70 NASA solicitation provisions and contract clauses.

  Subpart 1845.3_Authorizing the Use and Rental of Government Property

1845.301-71 Use of Government property for commercial work.
1845.302 Use of Government property on contracts with foreign 
          governments or international organizations.

Subpart 1845.4 [Reserved]

        Subpart 1845.5_Support Government Property Administration

1845.501-70 General.
1845.503-70 Delegations of property administration and plant clearance.
1845.505-70 Responsibilities of the property administrator.
1845.506-70 Responsibilities of the plant clearance officer.

  Subpart 1845.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory

1845.604 Restrictions on purchase or retention of contractor inventory.
1845.606-70 Contractor's approved scrap procedure.
1845.607 Scrap.
1845.607-1 General.
1845.607-170 Contractor's approved scrap procedure.
1845.607-2 Recovering precious metals.
1845.610 Sale of surplus contractor inventory.
1845.610-4 Contractor inventory in foreign countries.

                    Subpart 1845.71_Forms Preparation

1845.7101 Instructions for preparing NASA Form 1018.
1845.7101-1 Property classification.
1845.7101-2 Transfers of property.
1845.7101-3 Unit acquisition cost.
1845.7101-4 Types of deletions from contractor property records.
1845.7101-5 Contractor's privileged financial and business information.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 36722, July 9, 1997, unless otherwise noted.



                         Subpart 1845.1_General



1845.107  Contract clauses.



1845.107-70  NASA solicitation provisions and contract clauses.

    (a)(1) The contracting officer shall insert the clause at 1852.245-
70, Contractor Requests for Government-furnished Property, in cost 
reimbursement solicitations and contracts.
    (2) Use the clause with its Alternate I when the center Supply and 
Equipment Management Officer (SEMO) consents to permit the contractor to 
screen Government inventory for available property in lieu of contractor 
acquisition of new items.
    (b)(1) The contracting officer shall insert the clause at 1852.245-
71, Installation--Accountable Government Property, in solicitations and 
contracts when Government property is to be made available to a 
contractor working on a NASA installation, and the Government will 
maintain accountability for the property. The contracting officer shall 
list in the clause the applicable property user responsibilities. For

[[Page 239]]

purposes of this clause, NASA installations include local off-site 
buildings owned or leased by NASA.
    (2) Use of this clause is subject to the SEMO's concurrence that 
adequate Government property management resources are available for 
oversight of the property in accordance with all applicable NASA 
installation property management directives.
    (3) The contracting officer shall identify, in the contract, the 
nature, quantity, and acquisition cost of the property and make it 
available on a nocharge basis.
    (4) The contracting officer shall use the clause with its Alternate 
I if the SEMO requests that the contractor be restricted from use of the 
center central receiving facility for the purposes of receiving 
contractor-acquired property.
    (5) For contractors with both onsite and offsite performance 
requirements, contracting officers shall list Government property 
provided for offsite use separately in the contract. This Government 
property is furnished under FAR 52.245-1, Government Property, and 
remains accountable to the contractor during its use on the contract. 
This Government property is not subject to the clause at 1852.245-71, 
Installation--Accountable Government Property. The contracting officer 
shall address any specific maintenance considerations (e.g., requiring 
or precluding use of an installation calibration or repair facility) 
elsewhere in the contract.
    (c) The contracting officer shall insert the clause at 1852.245-72, 
Liability for e Government Property Furnished for Repair or Other 
Services, in fixed-price, time-and-material, and labor-hour 
solicitations and contracts (except for experimental, developmental, or 
research work with educational or nonprofit institutions, where no 
profit is contemplated) for repair, modification, rehabilitation, or 
other servicing of Government property, if such property is to be 
furnished to a contractor for that purpose and no other Government 
property is to be furnished. The contracting officer shall not require 
additional insurance under the clause unless the circumstances clearly 
indicate advantages to the Government.
    (d) The contracting officer shall insert the clause at 1852.245-73, 
Financial Reporting of NASA Property in the Custody of Contractors, in 
cost reimbursement solicitations and contracts and in all contracts in 
which the contractor has custody of NASA-owned property with a value of 
$10 million or more, unless all property to be provided is subject to 
the clause at 1852.245-71, Installation-Accountable Government Property. 
Insert the clause 1852.245-73 in other types of solicitations and 
contracts when it is known at award that property will be provided to 
the contractor or that the contractor will acquire property title to 
which will vest in the Government prior to delivery.
    (e) The contracting officer shall insert the clause at 1852.245-74, 
Identification and Marking of Government Equipment, in solicitations and 
contracts that--
    (1) Include the clause at FAR 52.245-1; or
    (2) Require the delivery of supplies.
    (f) The contracting officer shall insert the clause at 1852.245-75, 
Property Management Changes, in solicitations and contracts that provide 
for progress payments or include any of the property clauses prescribed 
in FAR Part 45.
    (g) The contracting officer shall insert the clause at 1852.245-76, 
List of Government Property Furnished Pursuant to FAR 52.245-1, in 
solicitations and contracts when the contractor is to be accountable 
under the contract for Government property.
    (h) The contracting officer shall insert the clause at 1852.245-77, 
List of Government Property Furnished Pursuant to FAR 52.245-2, in 
solicitations and contracts containing the clause at 52.245-2, 
Government Property Installation Operation Services. In addition, the 
contracting officer shall insert the following language in the blanks in 
paragraph (e) of the clause at 52.245-2:
    ``The Government property provided under this clause is identified 
in clause 1852.245-77 of this contract.''
    (i) The contracting officer shall insert the clause at 1852.245-78, 
Physical Inventory of Capital Personal Property, in cost reimbursement 
and fixed-price solicitations and contracts that provide Government 
property.

[[Page 240]]

    (j) The contracting officer shall insert the clause at 1852.245-79, 
Records and Disposition Reports for Government Property with Potential 
Historic or Significant Real Value, in solicitations and contracts when, 
after consultation with the center Historic Preservation Officer, it is 
determined that the items acquired for or produced by the contract are 
likely to have historic significance or increased value due to their use 
in support of NASA projects and programs.
    (k)(1) The contracting officer shall insert the provision at 
1852.245-80, Government Property Management Information, in 
solicitations when it is known, or there is a reasonable chance, that 
Government property will be provided to the contractor for contract 
performance.
    (2) The contracting officer shall use the provision with Alternate 1 
when there are sufficient time and resources to allow prospective 
contractors the opportunity to inspect the property.
    (l) The contracting officer shall insert the provision at 1852.245-
81, List of Available Government Property, in solicitations when 
Government property will be made available for contract performance.
    (m) The contracting officer shall insert the clause at 1852.245-82, 
Occupancy Management Requirements, in solicitations and contracts that 
require performance on, or in, any NASA Center, Installation, facility 
or other NASA real property.
    (n) The contracting officer shall insert the clause at 1852.245-83 
Real Property Management Requirements, in solicitations and contracts 
for acquisition, construction, modification (including when the 
modification is a consequence of another approved task, e.g., 
installation of telephonic or local area network equipment), demolition, 
or management of real property.

[76 FR 2004, Jan. 12, 2011, as amended at 81 FR 13747, Mar. 15, 2016; 81 
FR 71638, Oct. 18, 2016; 81 FR 91047, Dec. 16, 2016]



  Subpart 1845.3_Authorizing the Use and Rental of Government Property

    Source: 76 FR 2005, Jan. 12, 2011, unless otherwise noted.



1845.301-71  Use of Government property for commercial work.

    (a) The coverage at FAR 45.3 applies to a contractor's commercial 
(any non-Government) use of any NASA equipment.
    (b)(1) The Center Procurement Officer is the approval authority for 
non-Government use of equipment exceeding 25 percent.
    (2) The percentage of Government and non-Government use shall be 
computed on the basis of time available for use. For this purpose, the 
contractor's normal work schedule, as represented by scheduled 
production shift hours, shall be used. All equipment having a unit 
acquisition cost of less than $500,000 at any single location may be 
averaged over a quarterly period. Equipment having a unit acquisition 
cost of $500,000 or more shall be considered on an item-by-item basis.
    (3) Approvals for non-Government use, less than 25 percent, may not 
exceed 1 year. Approval for non-Government use in excess of 25 percent 
shall not exceed 3 months.
    (4) Requests for the approval shall be submitted to the Center 
Procurement Officer at least 6 weeks in advance of the projected use and 
shall include--
    (i) The number of equipment items involved and their total 
acquisition cost; and
    (ii) An itemized listing of equipment having an acquisition cost of 
$500,000 or more, showing for each item the nomenclature, year of 
manufacture, and acquisition cost.

[76 FR 2005, Jan. 12, 2011, as amended at 80 FR 51958, Aug. 27, 2015]



1845.302  Use of Government property on contracts with foreign
governments or international organizations.

    (a) NASA contracting officers will recover a fair share of the cost 
of Government property if such property is used

[[Page 241]]

in performing services or manufacturing articles for foreign countries 
or for international organizations.

Subpart 1845.4 [Reserved]



        Subpart 1845.5_Support Government Property Administration

    Source: 76 FR 2005, Jan. 12, 2011, unless otherwise noted.



1845.501-70  General.

    (b) When the Industrial Property Officer or Property Administrator 
determines that the contractor's proposed systems, standards and 
practices for the management of Government property are inadequate to 
manage Government property, the Contracting Officer should: (1) Require 
the contractor to provide a written revision that addresses the 
determination of the Industrial Property Officer or Property 
Administrator.



1845.503-70  Delegations of property administration and plant clearance.

    (e) Under the clause at 1852.245-71, Installation-Accountable 
Government Property, property is managed by center logistics functions 
using NASA internal policy and procedural guidance, except--
    (1) When contractors are provided or are allowed the use of property 
that is not governed by that procedural guidance, management of that 
property is governed by the applicable FAR clause.
    (2) When the contractor is responsible for performance of any 
segment of a property system under a FAR property clause, then property 
administration and plant clearance are required.



1845.505-70  Responsibilities of the property administrator.

    (c) When the property administrator determines that all or a portion 
of a contractor's property management practices and processes do not 
afford sufficient protection against loss, damage or destruction of 
Government property:
    (1) The property administrator shall increase surveillance to 
prevent, to the extent possible, any loss, damage, or destruction of 
Government property; and
    (2) Advise the contracting officer of any known or reported 
incidence of loss, damage or destruction identified during any period in 
which the contracting officer has revoked the Government's acceptance of 
risk.
    (d) The property administrator shall review records and the results 
of contractor actions to identify any and all incidence where the 
contractor fails to report property no longer required for performance 
for periods longer than called for in their standards and practices.



1845.506-70  Responsibilities of the plant clearance officer.

    When plant clearance is not delegated to DOD, NASA plant clearance 
officers shall be responsible for--
    (a) Providing the contractor with instructions and advice regarding 
the proper preparation of inventory schedules;
    (b) Accepting or rejecting inventory schedules;
    (c) Conducting or arranging for inventory verification;
    (d) Initiating prescribed screening and effecting resulting actions;
    (e) Final plant clearance of contractor inventory;
    (f) Pre-inventory scrap determinations, as appropriate;
    (g) Evaluating the adequacy of the contractor's procedures for 
property disposal and providing feedback to the Property Administrator 
regarding the contractor's performance in property disposal activities;
    (h) Determining the method of disposal;
    (i) Surveillance of any contractor conducted sales;
    (j) Accounting for all contractor inventory reported by the 
contractor;
    (k) Advising and assisting, as appropriate, the contractor, the 
Supply and Equipment Management Officer (SEMO) and other Federal 
agencies in all actions relating to the proper and timely disposal of 
contractor inventory;
    (l) Approving the method of sale, evaluating bids, and approving 
sale prices for any contractor-conducted sales; and

[[Page 242]]

    (m) Recommending the reasonableness of selling expenses related to 
any contractor-conducted sales.



  Subpart 1845.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



1845.604  Restrictions on purchase or retention of contractor inventory.

    (1) No contractor may sell contractor inventory to persons known by 
it to be NASA or DOD personnel who have been engaged in administering or 
terminating NASA contracts.
    (2)(i) The contractor's or subcontractor's authority to approve the 
sale, purchase, or retention of Government property on a contract which 
is excess to needs after Government reutilization screening at less than 
cost by a subcontractor, and the subcontractor's authority to sell, 
purchase, or retain such property at less than cost with the approval of 
the contractor or next higher-tier subcontractor does not include 
authority to approve--
    (A) A sale by a subcontractor to the contractor, the next higher-
tier subcontractor, or their affiliates; or
    (B) A sale, purchase, or retention by a subcontractor affiliated 
with the contractor or next higher-tier subcontractor.
    (ii) Each excluded sale, purchase, or retention requires the written 
approval of the plant clearance officer.



1845.606-70  Contractor's approved scrap procedure.

    (a) When a contractor has an approved scrap procedure, certain 
property may be routinely disposed of in accordance with that procedure 
and not processed under this section.
    (d) Property in scrap condition, other than that disposed of through 
the contractor's approved scrap procedure, shall be reported on 
appropriate inventory schedules for disposition in accordance with the 
provisions of FAR Part 45 and NFS 1845.

[76 FR 2006, Jan. 12, 2011]



1845.607  Scrap.



1845.607-1  General.



1845.607-170  Contractor's approved scrap procedure.

    (a) When a contractor has an approved scrap procedure, certain 
property may be routinely disposed of in accordance with that procedure 
and not processed under this section.
    (b)-(c) [Reserved]
    (d) Property in scrap condition, other than that disposed of through 
the contractor's approved scrap procedure, shall be reported on 
appropriate inventory schedules for disposition in accordance with the 
provisions of FAR part 45 and 1845.

[62 FR 36722, July 9, 1997, as amended at 69 FR 44610, July 27, 2004]



1845.607-2  Recovering precious metals. (NASA supplements paragraph (b)).

    (b) Silver, gold, platinum, palladium, rhodium, iridium, osmium, and 
ruthenium; scrap bearing such metals; and items containing recoverable 
quantities of them shall be reported to the Defense Reutilization and 
Marketing Service, DRMS-R, Federal Center, Battle Creek, MI 49017-3092, 
for instructions regarding disposition.



1845.610  Sale of surplus contractor inventory.



1845.610-4  Contractor inventory in foreign countries.

    NASA procedures for disposal are in NPR 4300.1, NASA Personal 
Property Disposal Procedures and Guidelines.

[62 FR 36722, July 9, 1997, as amended at 65 FR 58932, Oct. 3, 2000; 69 
FR 44610, July 27, 2004]



                    Subpart 1845.71_Forms Preparation



1845.7101  Instructions for preparing NASA Form 1018.

    NASA must account for and report assets in accordance with 31 U.S.C. 
3512 and 31 U.S.C. 3515, Federal Accounting Standards, and Office of 
Management and Budget (OMB) instructions. Since contractors maintain 
NASA's official

[[Page 243]]

records for its assets in their possession, NASA must obtain periodic 
data from those records to meet these requirements. Changes in Federal 
Accounting Standards and OMB reporting requirements may occur from year 
to year, requiring contractor submission of supplemental information 
with the NASA Form (NF) 1018. The specific Statements of Federal 
Financial Accounting Standards (SFFAS) to be used for property records 
are SFFAS No. 3 ``Accounting for Inventory and Related Property'', SFFAS 
No. 6 ``Accounting for Property, Plant and Equipment'', SFFAS No. 10 
``Accounting for Internal Use Software'', and SFFAS No. 11 ``Amendments 
to PP&E: Definitions'' issued by the Federal Accounting Standards 
Advisory Board. Classifications of property, related costs to be 
reported, and other reporting requirements are discussed in this 
subpart. NF 1018 (see 1853.3) provides critical information for NASA 
financial statements and property management. Accuracy, completeness, 
and timeliness of the report are critical to many aspects of NASA's 
operations.

[68 FR 62024, Oct. 31, 2003]



1845.7101-1  Property classification.

    (a) General. (1) Contractors shall report costs in the 
classifications on NF 1018, as described in this section. The cost of 
heritage assets and obsolete property will be reported on the NF 1018 
under the appropriate classification. Supplemental reporting may also be 
required.
    (2)(i) Heritage assets are property, plant and equipment that 
possess one or more of the following characteristics:
    (A) Historical or natural significance;
    (B) Cultural, educational or artistic importance; or
    (C) Significant architectural characteristics.
    (ii) Examples of NASA heritage assets include buildings and 
structures designated as National Historic Landmarks as well as 
aircraft, spacecraft and related components on display to enhance public 
understanding of NASA programs. Heritage assets which serve both a 
heritage and government operation function are considered multi-use when 
the predominant use is in general government operations. Multi-use 
heritage assets will not be considered heritage assets for NF 1018 
supplemental reporting purposes.
    (3) Obsolete property is property for which there are no current 
plans for use in its intended purpose (i.e., it no longer provides 
service to NASA operations). Examples of obsolete property are items in 
configurations which are no longer required or used by NASA or items 
held for engineering evaluation purposes only. NASA may have approved 
the retention of these items for programmatic reasons even though they 
have no current plans for use.
    (b) Land. Includes costs of land and improvements to land. 
Contractors shall report land with a unit acquisition cost of $500,000 
or more.
    (c) Buildings. Includes costs of buildings, improvements to 
buildings, and fixed equipment required for the operation of a building 
which is permanently attached to and a part of the building and cannot 
be removed without cutting into the walls, ceilings, of floors. 
Contractors shall report buildings with a unit acquisition cost of 
$500,000 or more. Examples of fixed equipment required for functioning 
of a building include plumbing, heating and lighting equipment, 
elevators, central air conditioning systems, and built-in safes and 
vaults.
    (d) Other Structures and Facilities. Includes costs of acquisitions 
and improvements of real property (i.e. structures and facilities other 
than buildings); for example, airfield pavements, harbor and port 
facilities, power production facilities and distribution systems, 
reclamation and irrigation facilities, flood control and navigation 
aids, utility systems (heating, sewage, water and electrical) when they 
serve several buildings or structures, communication systems, traffic 
aids, roads and bridges, railroads, monuments and memorials, and 
nonstructural improvements such as sidewalks, parking areas, and fences. 
Contractors shall report other structures and facilities with a unit 
acquisition cost of $500,000 or more and a useful life of two years or 
more.
    (e) Leasehold improvements. Includes NASA-funded costs of 
improvements to

[[Page 244]]

leased buildings, structures, and facilities, as well as easements and 
right-of-way, where NASA is the lessee or the cost is charged to a NASA 
contract. Contractors shall report leasehold improvements with a unit 
acquisition cost of $500,000 or more and a useful life of two years or 
more.
    (f) Construction in progress. Includes costs of work in process for 
the construction of Buildings, Other Structures and Facilities, and 
Leasehold Improvements to which NASA has title, regardless of value.
    (g) Equipment. Includes costs of commercially available personal 
property capable of stand-alone use in manufacturing supplies, 
performing services, or any general or administrative purpose (for 
example, machine tools, furniture, vehicles, computers, software, test 
equipment, including their accessory or auxiliary items). Software 
integrated into and necessary to operate another item of Government 
property is considered to be an auxiliary item (see FAR 45.501) and 
should be considered part of the item of which it is an integral part. 
Other software to which NASA has title shall be classified as an 
individual item of equipment for reporting purposes if it has a useful 
life of 2 years or more and acquisition cost of $1,000,000 or more (also 
see 1845.7101-3(g)). Enhancement costs for existing software should be 
added to the software acquisition cost if the enhancement results in 
significant additional capability beyond that for which the software was 
originally developed (i.e., a capability that was not included in the 
original software specifications, the total cost of the enhancement is 
$1,000,000 or more, or the expected useful life of the enhanced software 
is 2 years or more). Software licenses are excluded. Contractors shall 
separately report:
    (1) The amount for all items with a unit acquisition cost of 
$500,000 or more and a useful life of two years or more; and
    (2) All other items.
    (h) Special tooling. Includes costs of equipment and manufacturing 
aids (and their components and replacements) of such a specialized 
nature that, without substantial modification or alteration, their use 
is limited to development or production of particular supplies or parts, 
or performance of particular services (see FAR 45.101). Examples include 
jigs, dies, fixtures, molds, patterns, taps and gauges. Contractors 
shall separately report:
    (1) The amount for all items with a unit acquisition cost of 
$500,000 or more and a useful life of two years or more; and
    (2) All other items.
    (i) Special test equipment. Includes costs of equipment used to 
accomplish special purpose testing in performing a contract, and items 
or assemblies of equipment (see FAR 45.101). Contractors shall 
separately report:
    (1) The amount for all items with a unit acquisition cost of 
$500,000 or more and a useful life of two years or more; and
    (2) All other items.
    (j) Material. Includes costs of NASA-owned property held in 
inventory regardless of whether or not it is unique to NASA programs, 
that may become a part of an end item or be expended in performing a 
contract. Examples include raw and processed material, spares, parts, 
assemblies, small tools and supplies. Material that is part of work-in-
process is not included. Contractors shall report the amount for all 
Materials in inventory, regardless of unit acquisition cost.
    (k) Agency-Peculiar Property. Includes costs of completed items, 
unique to NASA aeronautical and space programs, which are capable of 
stand-alone operation. Examples include research aircraft, reusable 
space vehicles, ground support equipment, prototypes, and mock-ups. The 
amount of property, title to which vests in NASA as a result of progress 
payments to fixed price subcontractors, shall be included to reflect the 
pro rata cost of undelivered agency-peculiar property. Completed end 
items not related to the International Space Station or the Space 
Shuttle program which otherwise meet the definition of Agency-Peculiar 
Property, and are destined for permanent operation in space, such as 
satellites and space probes, shall not be reported. Contractors shall 
separately report:
    (1) The amount for all items with a unit acquisition cost of 
$500,000 or more

[[Page 245]]

and a useful life of two years or more; and
    (2) All other items.
    (l) Contract Work-in-Process. Work-in-process (WIP) consists of 
property items under construction (i.e., not complete). It includes 
costs of all work-in-process regardless of value, and excludes costs of 
completed items reported in other categories. While the costs of WIP for 
International Space Station and Space Shuttle components should be 
included as WIP, satellites and space probes and their components should 
be excluded from WIP as those items will be accounted for by NASA.

[65 FR 54814, Sept. 11, 2000, as amended at 65 FR 82297, Dec. 28, 2000; 
66 FR 41806, Aug. 9, 2001; 67 FR 68534, Nov. 12, 2002; 68 FR 62024, Oct. 
31, 2003; 80 FR 51958, Aug. 27, 2015]



1845.7101-2  Transfers of property.

    A transfer is a change in accountability between and among prime 
contracts, NASA Centers, and other Government agencies (e.g., between 
contracts of the same NASA Center, contracts of different NASA Centers, 
a contract of one NASA Center to another, a NASA Center to a contract of 
another NASA Center, and a contract to another Government agency or its 
contract). To enable NASA to properly control and account for all 
transfers, they shall be adequately documented. Adequate documentation 
includes the appropriate dollar amount of the asset(s) transferred (as 
prescribed in 1845.7101-3) and the formal, signed NASA or contractor 
authorization approving the transfer. In addition, procurement, 
property, and financial organizations at NASA Centers must effect all 
transfers of accountability, although physical shipment and receipt of 
property may be made directly by contractors. The procedures described 
in this section shall be followed to provide an administrative and audit 
trail, even if property is physically shipped directly from one 
contractor to another. Property shipped between September 1 and 
September 30, inclusively, shall be accounted for and reported by the 
shipping contractor, regardless of the method of shipment, unless 
written evidence of receipt at destination has been received. 
Repairables provided under fixed price repair contracts that include the 
clause at 1852.245-72, Liability for Government Property Furnished for 
Repair or Other Services, remain accountable to the cognizant NASA 
Center and are not reportable on NF 1018; repairables provided under a 
cost-reimbursement contract, however, are accountable to the contractor 
and reportable on NF 1018. All materials provided to conduct repairs are 
reportable, regardless of contract type.
    (a) Approval and notification. The contractor must obtain approval 
of the contracting officer or designee for transfers of property off the 
prime contract before shipment. Each shipping document must be signed by 
the contracting officer or designee demonstrating such approval. Each 
shipping document must contain contract numbers, shipping references, 
property classifications in which the items are recorded (including 
Federal Supply Classification group (FSC) codes for equipment), unit 
acquisition costs (as defined in 1845.7101-3, Unit Acquisition Cost), 
original Government acquisition dates for items with a unit acquisition 
cost of $500,000 or more and a useful life of two years or more, and any 
other appropriate identifying or descriptive data. Where the DD Form 
250, Material Inspection and Receiving Report, is used, the FSC code 
will be part of the national stock number (NSN) entered in Block 16 or, 
if the NSN is not provided, the FSC alone shall be shown in Block 16. 
The original Government acquisition date shall be shown in Block 23, by 
item. Other formats, such as the DD Form 1149, Requisition and Invoice/
Shipping Document, should be clearly annotated with the required 
information. Unit acquisition costs shall be obtained from records 
maintained pursuant to FAR part 45 and this part 1845, or, for 
uncompleted items where property records have not yet been established, 
from such other record systems as are appropriate such as manufacturing 
or engineering records used for work control and billing purposes. 
Shipping contractors shall furnish a copy of the formally approved 
shipping document to the cognizant property administrator. Shipping and 
receiving

[[Page 246]]

contractors shall promptly submit copies of shipping and receiving 
documents to the Center Deputy Chief Financial Officer, Finance, 
responsible for their respective contracts when accountability for NASA 
property is transferred to, or received from, other contracts, 
contractors, NASA Centers, or Government agencies.
    (b) Reclassification. If property is transferred to another contract 
or contractor, the receiving contractor shall record the property in the 
same property classification and amount appearing on the shipping 
document. For example, when a contractor receives an item from another 
contractor that is identified on the shipping document as equipment, but 
that the recipient intends to incorporate into special test equipment, 
the recipient shall first record the item in the equipment account and 
subsequently reclassify it as special test equipment. Reclassification 
of equipment, special tooling, special test equipment, or agency-
peculiar property requires prior approval of the contracting officer or 
a designee.
    (c) Incomplete documentation. If contractors receive transfer 
documents having insufficient detail to properly record the transfer 
(e.g., omission of property classification, FSC, unit acquisition cost, 
Government acquisition date, required signatures, etc.) they shall 
request the omitted data directly from the shipping contractor or 
through the property administrator. The contracting officer shall assist 
the Government Property Administrator and the receiving contractor to 
obtain all required information for the receiving contractor to 
establish adequate property records.

[65 FR 54815, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001; 
67 FR 68534, Nov. 12, 2002; 68 FR 62025, Oct. 31, 2003; 76 FR 2006, Jan. 
12, 2011; 80 FR 51958, Aug. 27, 2015]



1845.7101-3  Unit acquisition cost.

    (a) The unit acquisition cost shall include all costs incurred to 
bring the property to a form and location suitable for its intended use. 
The following is representative of the types of costs that shall be 
included, when applicable:
    (1) Amounts paid to vendors or other contractors.
    (2) Transportation charges to the point of initial use.
    (3) Handling and storage charges.
    (4) Labor and other direct or indirect production costs (for assets 
produced or constructed).
    (5) Engineering, architectural, and other outside services for 
designs, plans, specifications, and surveys.
    (6) Acquisition and preparation costs of buildings and other 
facilities.
    (7) An appropriate share of the cost of the equipment and facilities 
used in construction work.
    (8) Fixed equipment and related installation costs required for 
activities in a building or facility.
    (9) Direct costs of inspection, supervision, and administration of 
construction contracts and construction work.
    (10) Legal and recording fees and damage claims.
    (11) Fair values of facilities and equipment donated to the 
Government.
    (b) Acquisition cost shall include, where appropriate, for 
contractor acquired property, related fees, or a pro rata portion of 
fees, paid by NASA to the contractor. Situations where inclusion of fees 
in the acquisition cost would be appropriate are those in which the 
contractor designs, develops, fabricates or purchases property for NASA 
and part of the fees paid to the contractor by NASA are related to that 
effort.
    (c) Acquisition cost shall be developed using actual costs to the 
greatest extent possible, especially costs directly related to 
fabrication such as labor and materials. Where estimates are used, there 
must be a documented methodology based on a historical basis. All 
acquisition costs shall be properly documented, supported and retained. 
Supporting documentation shall be made available upon request.
    (d) The use of weighted average methodologies is acceptable for 
valuation of Material.
    (e) Contractors shall report unit acquisition costs using records 
that are part of the prescribed property or financial control system as 
provided in this section. Fabrication costs shall be based on approved 
systems or procedures and include all direct and indirect costs of 
fabrication.

[[Page 247]]

    (f) Only modifications that improve an item's capacity or extend its 
useful life two years or more and that cost $500,000 or more shall be 
reported on the NF 1018 on the $500,000 & Over line. The costs of any 
other modifications, excluding routine maintenance, will be reported on 
the Under $500,000 line. If an item's original unit acquisition cost is 
less than $500,000, but a single subsequent modification costs $500,000 
or more, that modification only will be reported as an item $500,000 or 
more on subsequent NF 1018s. The original acquisition cost of the item 
will continue to be included in the under $500,000 total. The quantity 
for the modified item will remain ``1'' and be reported with the 
original acquisition cost of the item. If an item's acquisition cost is 
reduced by removal of components so that its remaining acquisition cost 
is under $500,000, it shall be reported as under $500,000.
    (g) Software acquisition costs include software costs incurred up 
through acceptance testing and material internal costs incurred to 
implement the software and otherwise make the software ready for use. 
Costs incurred after acceptance testing are excluded. License, 
maintenance, training, and data conversion costs are also excluded. If 
the software is purchased as part of a package, the costs will need to 
be segregated in such manner as to ensure that the excluded costs 
(maintenance, training, etc.) are not reported as part of the software's 
acquisition cost. Enhancement costs for existing software should be 
added to the acquisition cost if the enhancement results in significant 
additional capability beyond that for which the software was originally 
developed (i.e. a capability that was not included in the original 
software specifications), the total cost of the enhancement is 
$1,000,000 or more, and the expected useful life of the enhanced 
software is 2 years or more. Include the same types of cost as indicated 
above under new software. Costs incurred solely to repair a design flaw 
or perform minor upgrades should not be included.
    (h) The computation of work in process (WIP) shall include all 
direct and indirect costs of fabrication, including associated systems, 
subsystems, and spare parts and components furnished or acquired and 
charged to work in process pending incorporation into a finished item. 
These types of items make up what is sometimes called production 
inventory and include programmed extra units to cover replacement during 
the fabrication process (production spares). Also included are 
deliverable items on which the contractor or a subcontractor has begun 
work, and materials issued from inventory. The computation of WIP shall 
incorporate the other requirements for unit acquisition cost as outlined 
in paragraphs (a) through (e) of this section. In addition, acquisition 
cost of property furnished by the Government, which has been 
incorporated in the property item under construction or in process of 
fabrication, should be included. Do not include costs for operation or 
repairing existing completed property items. Once the property is 
complete, include all the costs outlined above in its acquisition value 
in the property record. The WIP values are inception to date until such 
time as the WIP is completed. It does not include future costs.

[65 FR 54815, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001; 
67 FR 68534, Nov. 12, 2002; 68 FR 62025, Oct. 31, 2003; 80 FR 51958, 
Aug. 27, 2015]



1845.7101-4  Types of deletions from contractor property records.

    Contractors shall report the types of deletions from contract 
property records as described in this section.
    (a) Lost, damaged or destroyed. Deletion amounts that result from 
relief from responsibility under FAR 45.503 granted during the reporting 
period.
    (b) Transferred in Place. Deletion amounts that result from transfer 
of property to a follow-on prime contract or other prime contract with 
the same contractor.
    (c) Transferred to NASA Center accountability. Deletion amounts that 
result from transfer of accountability to the NASA Center responsible 
for the contract, whether or not items are physically moved.
    (d) Transferred to another NASA Center. Deletion amounts that result 
from transfer of accountability to a NASA Center other than the one 
responsible

[[Page 248]]

for the contract, whether or not items are physically moved.
    (e) Transferred to another Government agency. Deletion amounts that 
result from transfer of property to another Government agency.
    (f) Purchased at cost/returned for credit. Deletion amounts that 
result from contractor purchase or retention of contractor acquired 
property as provided in FAR 45.605-1, or from contractor returns to 
suppliers under FAR 45.605-2.
    (g) Disposed of through plant clearance process. Deletions other 
than transfers within the Federal Government, e.g., donations to 
eligible recipients, sold at less than cost, or abandoned/directed 
destruction, or trade-ins.
    (h) Other. Types of deletion other than those reported in paragraph 
(a) through (g) of this section such as those resulting from 
reclassifications (e.g. from equipment to agency-peculiar property).

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001; 
67 FR 68535, Nov. 12, 2002]



1845.7101-5  Contractor's privileged financial and business information.

    If a transfer of property between contractors involves disclosing 
costs of a proprietary nature, the contractor shall furnish unit 
acquisition costs only on copies of shipping documents sent to the 
shipping and receiving NASA Centers.

[65 FR 54816, Sept. 11, 2000, as amended at 66 FR 41806, Aug. 9, 2001]



PART 1846_QUALITY ASSURANCE--Table of Contents



                         Subpart 1846.1_General

Sec.
1846.102 Policy.

                     Subpart 1846.3_Contract Clauses

1846.370 NASA contract clauses.

          Subpart 1846.4_Government Contract Quality Assurance

1846.470 Contract clause.

        Subpart 1846.6_Material Inspection and Receiving Reports

1846.670 Introduction.
1846.670-1 General.
1846.670-2 Applicability.
1846.670-3 Use.
1846.670-4 Multiple shipments.
1846.670-5 Forms.
1846.671 Contract quality assurance on shipments between contractors.
1846.672 Preparing DD Forms 250 and 250c.
1846.672-1 Preparation instructions.
1846.672-2 Consolidated shipments.
1846.672-3 Multiple consignee instructions.
1846.672-4 Correction instructions.
1846.672-5 Packing list instructions.
1846.672-6 Receiving instructions.
1846.673 Distribution of DD Forms 250 and 250c.
1846.674 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14024, Mar. 25, 1997, unless otherwise noted.



                         Subpart 1846.1_General



1846.102  Policy.

    (f) See NPR 8735.2, Section 2.1, concerning quality assurance for 
critical acquisition items. Generally, the quality assurance 
requirements set forth in the NPR for critical acquisition items are not 
allowed under part 12 procedures. See FAR 12.208.

[80 FR 12944, Mar. 12, 2015]



                     Subpart 1846.3_Contract Clauses



1846.370  NASA contract clauses.

    The contracting officer shall insert the clause at 1852.246-73, 
Human Space Flight Item, in solicitations and contracts for human space 
flight hardware and flight-related equipment if the highest available 
quality standards are necessary to ensure astronaut safety.

[80 FR 60554, Oct. 7, 2015]



          Subpart 1846.4_Government Contract Quality Assurance



1846.470  Contract clause.

    The contracting officer may insert a clause substantially as stated 
at 1852.246-71, Government Contract Quality Assurance Functions, in 
solicitations and contracts to specify the location(s) of quality 
assurance functions.

[[Page 249]]



        Subpart 1846.6_Material Inspection and Receiving Reports



1846.670  Introduction.



1846.670-1  General.

    This subpart contains procedures and instructions for use of the DD 
Form 250, Material Inspection and Receiving Report (MIRR), (DD Form 250 
series equivalents, and commercial shipping/packing lists used to 
document Government contract quality assurance (CQA).

[80 FR 12944, Mar. 12, 2015]



1846.670-2  Applicability.

    (a) This subpart applies to supplies or services acquired by or for 
NASA when the clause at 1852.246-72, Material Inspection and Receiving 
Report, is included in the contract.

[80 FR 12944, Mar. 12, 2015]



1846.670-3  Use.

    (a) The DD Form 250 is a multipurpose report used for--
    (1) Providing evidence of CQA at origin or destination;
    (2) Providing evidence of acceptance at origin or destination;
    (3) Packing lists;
    (4) Receiving;
    (5) Shipping; and
    (6) Contractor invoice support.
    (b) Do not use MIRRs for shipments--
    (1) By subcontractors, unless the subcontractor is shipping directly 
to the Government; or,
    (2) Of contract inventory.
    (c) The contractor prepares the DD Form 250, except for entries that 
an authorized Government representative is required to complete. The 
contractor shall furnish sufficient copies of the completed form, as 
directed by the Government Representative.

[80 FR 12945, Mar. 12, 2015]



1846.670-4  Multiple shipments.

    (a) If the ``shipped to,'' ``marked for,'' ``shipped from,'' 
``CQA,'' and ``acceptance'' data are the same for more than one shipment 
made on the same day under the same contract in a single car, truck, or 
other vehicle, one MIRR shall be prepared to cover all such shipments.
    (b) If the volume of the shipments precludes the use of a single 
car, truck, or other vehicle, a separate MIRR shall be provided for each 
vehicle.

[62 FR 14024, Mar. 25, 1997, as amended at 69 FR 44610, July 27, 2004]



1846.670-5  Forms.

    An electronic copy of the DD Form 250 may be downloaded from the 
General Services Administration's Forms Library at http://www.gsa.gov/
portal/category/100000.

[80 FR 12945, Mar. 12, 2015]



1846.671  Contract quality assurance on shipments between contractors.

    (a) The supplier's commercial shipping document/packing list shall 
indicate performance of required CQA actions at subcontract level.
    The following entries shall be made on the document/packing list:

    Required CQA of items has been performed.
________________________________________________________________________
(Signature of Authorized Government Representative)

________________________________________________________________________
(Date)

________________________________________________________________________
(Typed Name and Office)

    (b) Distribution for Government purposes shall be one copy each--
    (1) With shipment;
    (2) For the Government representative at consignee (via mail); and
    (3) For the Government representative at consignor.



1846.672  Preparing DD Forms 250 and 250c.



1846.672-1  Preparation instructions.

    (a) General. (1) Dates shall include nine spaces consisting of the 
four digits of the year, the first three letters of the month, and two 
digits for the date (e.g., 2012SEP24).
    (2) Addresses shall consist of the name, street address/P.O. box, 
city, State, and ZIP code.
    (3) The data entered in the blocks at the top of DD Form 250C shall 
be identical to the comparable entries in Blocks 1, 2, 3, and 6 of the 
DD Form 250.

[[Page 250]]

    (4) Overflow data of the DD Form 250 shall be entered in Block 16 or 
in the body of the DD Form 250c with block cross reference. Additional 
DD Form 250c sheets solely for continuation of Block 23 data shall not 
be numbered or distributed as part of the MIRR.
    (b) Classified information. Do not include classified information on 
the MIRR. MIRRs must not be classified.
    (c) Block 1--PROCUREMENT INSTRUMENT IDENTIFICATION (CONTRACT 
NUMBER). Enter the ten-character, alpha-numeric procurement identifier 
of the contract.
    (d) Block 2--SHIPMENT NO. (1) The shipment number is a three-alpha 
character prefix and a four-character numeric or alpha-numeric serial 
number.
    (i) The prefix shall be controlled and assigned by the prime 
contractor and shall consist of three alpha characters for each 
``shipped from'' address (Block 11). The prefix shall be different for 
each ``Shipped From'' address and shall remain constant throughout the 
contract period.
    (ii) The serial number for the first shipment under a prime contract 
from each ``shipped from'' address shall be 0001; subsequent shipments 
under that prime contract shall be consecutively numbered. Alpha-
numerics shall be used when more than 9,999 numbers are required. Alpha-
numerics shall be serially assigned, with the alpha in the first 
position, followed by the three-position numeric serial number. The 
alpha-numeric sequence shall be (the letters I and O shall not be used) 
A001 through A999 (10,001 through 10,999); B001 through B999 (11,001 
through 11,999); to Z999. When this series is completely used, numbering 
shall revert to 0001.
    (2) The shipment number of the initial shipment shall be reassigned 
when a ``replacement shipment'' is involved (see paragraph (r)(4)(iv) of 
this section).
    (3) The prime contractor shall control deliveries and on the last 
shipment of the contract shall suffix the shipment number with a ``Z'' 
in addition to that required for line items (see Block 17). If the 
contract final shipment is from other than the prime contractor's plant, 
the prime contractor may elect
    (i) To direct the subcontractor to suffix the ``Z'' or
    (ii), On receipt of the subcontractor final shipment information, to 
correct the DD Form 250 covering the last shipment from the prime 
contractor's plant by adding a ``Z'' to that shipment number.
    (e) Block 3--DATE SHIPPED. Enter the date the shipment is released 
to the carrier or the date of completion of services. If the shipment 
will be released after the date of CQA and/or acceptance, enter the 
estimated date of release. When the date is estimated, enter an ``E'' 
after it. Distribution of the MIRR shall not be delayed for entry of the 
actual shipping date. Reissurance of the MIRR is not required to show 
the actual shipping date.
    (f) Block 4--B/L TCN. When applicable, enter the commercial or 
Government bill of lading number after ``B/L''; and the Transportation 
Control Number after ``TCN.''
    (g) Block 5--DISCOUNT TERMS. (1) The Contractor may enter the 
discount in terms of percentages on all copies of the MIRR.
    (2) When the MIRR is used as an invoice, see 1846.672-5.
    (h) Block 6--INVOICE. The contractor may enter the invoice number 
and actual or estimated date on all copies of the MIRR. When the date is 
estimated, enter an ``E'' after the date. Do not correct MIRRs to 
reflect the actual date of invoice submission.
    (i) Block 7--PAGE/OF. Consecutively number the pages comprising the 
MIRR. On each page, enter the total number of pages of the MIRR.
    (j) Block 8--ACCEPTANCE POINT. Enter an ``S'' for origin or ``D'' 
for destination as specified in the contract as the point of acceptance.
    (k) Block 9--PRIME CONTRACTOR. Enter the Commercial and Government 
Entity (CAGE) code and address.
    (l) Block 10--ADMINISTERED BY. Enter the code and address of the 
contracting office cited in the contract.
    (m) Block 11--SHIPPED FROM/CODE/FOB. (1) Enter the code and address 
of the ``shipped from'' location. If identical to Block 9, enter ``See 
Block 9.''
    (2) For performance of services that do not require delivery of 
items upon

[[Page 251]]

completion, enter the code and address of the location at which the 
services were performed. If the DD Form 250 covers performance at 
multiple locations or if identical to Block 9, enter ``See Block 9.''
    (3) Enter on the same line and to the right of ``FOB'' an ``S'' for 
origin or ``D'' for destination as specified in the contract. Enter an 
alphabetic ``O'' if the FOB point cited in the contract is other than 
origin or destination.
    (n) Block 12--PAYMENT WILL BE MADE BY. Enter the address of the 
payment office cited in the contract.
    (o) Block 13--SHIPPED TO/CODE. Enter the code and address from the 
contract or shipping instructions.
    (p) Block 14--MARKED FOR/CODE. Enter the code and address from the 
contract or shipping instructions.
    (q) Block 15--ITEM NO. Enter the item number used in the contract. 
If four or fewer digits are used, position them to the left of the 
vertical dashed line. Where a six-digit identification is used, enter 
the last two digits to the right of the vertical dashed line.
    (r) Block 16--STOCK/PART NO./DESCRIPTION. (1) Enter, as applicable, 
for each item, using single spacing between each line item, the 
following:
    (i) The National Stock Number (NSN) or noncatalog number and, if 
applicable, prefix or suffix. When a number is not provided or it is 
necessary to supplement the number, include other identification such as 
the manufacturer's name or Federal Supply Code (as published in 
Cataloging Handbook H4-1), and part numbers. Additional part numbers may 
be shown in parentheses. Also enter the descriptive noun of the item 
nomenclature and, if provided, the Government-assigned management/
material control code. In the case of equal-kind supply items, the first 
entry shall be the description without regard to kind (e.g., 
``Resistor''). Below this description, enter the contract item number in 
Block 15 and stock/part number followed by the size or type in Block 16.
    (ii) On the next printing line, if required by the contract for 
control purposes, enter the make, model, serial number, lot, batch, 
hazard indicator, and/or similar description.
    (iii) On the next printing line, enter the FEDSTRIP requisition 
number(s) when provided in the contract or shipping instructions.
    (2) For service items, enter the word ``SERVICE'' followed by a 
short description of less than 20 characters. Do not complete items 4, 
13, and 14 when material is not shipped.
    (3) For all contracts administered by the Defense Contract 
Management Agency, with the exception of fast pay procedures, enter and 
complete the following:
    Gross Shipping Wt._(State weight in pounds only).
    (4) Enter on the next line the following as appropriate (entries may 
be extended through Block 20). When entries apply to more than one item 
in the MIRR, enter them only once after the last item and reference the 
applicable item numbers.
    (i) Enter in capital letters any special handling instructions/
limits for material environmental control (e.g., temperature, humidity, 
aging, freezing, and shock).
    (ii) When an NSN is required by, but not cited in, a contract and 
has not been furnished by the Government, shipment may be made at the 
direction of the contracting officer. Enter the authority for the 
shipment.
    (iii) When Government-furnished property (GFP) is included with or 
incorporated into the line item, enter ``GFP''.
    (iv) When the shipment consists of replacements for supplies 
previously furnished, enter in capital letters ``REPLACEMENT SHIPMENT'' 
(see paragraph (s)(3) of this section for replacement indicators.)
    (v) For items shipped with missing components, enter and complete 
the following: ``Item(s) shipped short of the following component(s): 
FSN or comparable identification ____, Quantity ____, Estimated Value 
____, Authority ____.''
    (vi) When shipment is made of components that were short on a prior 
shipment, enter and complete the following: ``These components were 
listed as shortages on Shipment Number ____, date shipped ____.''
    (vii) When shipments involve drums, cylinders, reels, containers, 
skids, etc.,

[[Page 252]]

designated as returnable under contract provisions, enter and complete 
the following: ``Return to ____, Quantity ____, Item ____, Ownership 
(Government/contractor).''
    (viii) Enter shipping container number(s), the type, and the total 
number of the shipping container(s) included in the shipment.
    (ix) The MIRR shall be used to record and report the waivers and 
deviations from contract specifications, including the source and 
authority for the waiver or deviation (e.g., the contracting office 
authorizing the waiver or deviation and the identification of the 
authorizing document).
    (x) For shipments involving discount terms, enter ``DISCOUNT 
EXPEDITE'' in at least one-inch outline-type letters.
    (xi) When test/evaluation results are a condition of acceptance and 
are not available before shipment, the following note shall be entered 
if the shipment is approved by the contracting officer: ``Note: 
Acceptance and payment are contingent upon receipt of approved test/
evaluation results.'' The contracting officer will advise (A) the 
consignee of the results (approval/disapproval) and (B) the contractor 
to withhold invoicing pending attachment to its invoice of the approved 
test/evaluation
    (xii) The copy of the DD Form 250 required to support payment for 
destination acceptance (top copy of the four with shipment) or 
Alternative Release Procedure (ARP) origin acceptance (additional copy 
furnished to the Quality Assurance Representative (QAR)) shall be 
identified by entering ``PAYMENT COPY'' in approximately one-half-inch 
outline-type letters with ``FORWARD TO BLOCK 12 ADDRESS'' in 
approximately one-quarter-inch letters immediately below. Do not 
obliterate any other entries.
    (xiii) A double line shall be drawn completely across the form 
following the last entry.
    (s) Block 17--QUANTITY SHIP/REC'D. (1) Enter the quantity shipped, 
using the unit of measure indicated in the contract for payment. When a 
second unit of measure is used for purposes other than payment, enter 
the appropriate quantity directly below in parentheses.
    (2) Enter a ``Z'' below the first digit of the quantity when the 
total quantity of the item is delivered, including variations within 
contract terms; and all shortages on items previously shipped short are 
delivered.
    (3) If a replacement shipment is involved, enter below the first 
digit of the quantity the letter ``A'' top designate first replacement, 
``B'' for second replacement, and so forth. The final shipment indicator 
``Z'' shall not be used when a final line item shipment is replaced.
    (t) Block 18 UNIT. Enter the abbreviation of the unit of measure 
indicated in the contract for payment. When a second unit of measure is 
indicated in the contract for purposes other than payment or is used for 
shipping purposes, enter the abbreviation of the second unit of measure 
directly below in parentheses. Authorized abbreviations are listed in 
MIL-STD-129, Marking for Shipping and Storage.
    (u) Block 19--UNIT PRICE. Enter the unit price on all NASA copies 
whenever the MIRR is used for voucher or receiving purposes.
    (v) Block 20--AMOUNT. Enter the extended amount when the unit price 
is entered in Block 19.
    (w) Block 21--CONTRACT QUALITY ASSURANCE. The words ``conform to 
contract'' contained in the printed statements in Blocks A and B relate 
to contract obligations pertaining to quality and to the quantity of the 
items on the report. The statements shall not be modified. Notes taking 
exception shall be entered in Block 16 or on attached supporting 
documents with block cross reference.
    (1) ``A. ORIGIN.''
    (i) The authorized Government representative shall--
    (A) Place an ``X'' when applicable in the appropriate CQA and/or 
acceptance box(es) to evidence origin CQA and/or acceptance. When the 
contract requires CQA at destination in addition to origin CQA, an 
asterisk shall be entered at the end of the statement and an explanatory 
note in Block 16;
    (B) Sign and date; and

[[Page 253]]

    (C) Enter the typed, stamped, or printed name of the signer and 
office code.
    (2) ``B. DESTINATION.''
    (i) When acceptance at origin is indicated in Block 21A, no entries 
shall be made in Block 21B.
    (ii) When acceptance of CQA and acceptance are at destination, the 
authorized Government representative shall--
    (A) Place an ``X'' in the appropriate box(es);
    (B) Sign and date; and
    (C) Enter the typed, stamped, or printed name of the signer and 
office code.
    (x) Block 22--RECEIVER'S USE. This block shall be used by the 
receiving authority (Government or contractor) to denote receipt, 
quantity, and condition. The receiving activity shall enter in this 
block the date the supplies arrived. For example, when off-loading or 
in-checking occurs subsequent to the day of arrival of the carrier at 
the installation, the date of the carrier's arrival is the date received 
for purposes of this block.
    (y) Block 23--CONTRACTOR USE ONLY. This block is provided and 
reserved for contractor use.

[62 FR 14024, Mar. 25, 1997, as amended at 80 FR 12945, Mar. 12, 2015]



1846.672-2  Consolidated shipments.

    When individual shipments are held at the contractor's plant for 
authorized transportation consolidation to a single destination on a 
single bill of lading, the applicable DD Forms 250 may be prepared at 
the time of CQA or acceptance prior to the time of actual shipment (see 
Block 3).



1846.672-3  Multiple consignee instructions.

    The contractor may prepare one MIRR when the identical item(s) of a 
contract is to be shipped to more than one consignee, with the same or 
varying quantities, and the shipment requires origin acceptance. Prepare 
the MIRR using the procedures in this subpart with the following 
changes:
    (a) Blocks 2, 4, 13, and, if applicable, 14--Enter ``See Attached 
Distribution List.''
    (b) Block 15--The contractor may group item numbers for identical 
stock/part number and description.
    (c) Block 17--Enter the ``total'' quantity shipped by item or, if 
applicable, grouped identical items.
    (d) Use the DD Form 250c to list each individual ``Shipped To'' and 
``Marked For'' with--
    (1) Code(s) and complete shipping address and a sequential shipment 
number for each;
    (2) Item number(s);
    (3) Quantity;
    (4) The FEDSTRIP requisition number and quantity for each when 
provided in the contract or shipping instructions; and
    (5) If applicable, bill of lading number and mode of shipment code.



1846.672-4  Correction instructions.

    When, because of errors of omissions, it is necessary to correct the 
MIRR after distribution, it shall be revised by correcting the original 
master and distributing the corrected form. The corrections shall be 
made as follows:
    (a) Circle the error and place the corrected information in the same 
block. If space is limited, enter the corrected information in Block 16, 
referencing the error page and block.
    (b) When corrections are made to Blocks 15 and 17, enter the words 
``CORRECTIONS HAVE BEEN VERIFIED'' on page 1. The authorized Government 
representative shall date and sign immediately below the statement. This 
verification statement and signature are not required for other 
corrections.
    (c) MIRRs shall not be corrected for Block 19 and 20 entries.
    (d) Clearly mark pages of the MIRR requiring correction with the 
words ``CORRECTED COPY'', avoiding obliteration of any other entries. 
Even though corrections are made on continuation sheets only, also mark 
page 1 ``CORRECTED COPY''.
    (e) Page 1 and only those continuation pages marked ``CORRECTED 
COPY'' shall be distributed to the initial distribution. A complete MIRR 
with corrections shall be distributed to new addressee(s) created by 
error corrections.

[[Page 254]]



1846.672-5  Packing list instructions.

    Copies of the MIRR may be used as a packing list. The packing list 
copies shall be in addition to the copies of the MIRR required for 
distribution (see 1846.673) and shall be marked ``PACKING LIST''.

[62 FR 14024, Mar. 25, 1997. Redesignated at 80 FR 12945, Mar. 12, 2015]



1846.672-6  Receiving instructions.

    When the MIRR is used for receiving purposes, procedures shall be as 
prescribed by local directives. If acceptance or CQA and acceptance of 
supplies are required upon arrival at destination, see Block 21B for 
instructions.

[62 FR 14024, Mar. 25, 1997. Redesignated at 80 FR 12945, Mar. 12, 2015]



1846.673  Distribution of DD Forms 250 and 250c.

    (a) DD Forms 250 and 250c shall be distributed in accordance with 
installation procedures.
    (b) The contractor is responsible for distributing DD Forms 250 and 
250c in accordance with the provisions of the contract or instructions 
of the contracting officer.



1846.674  Contract clause.

    The contracting officer shall insert the clause at 1852.246-72, 
Material Inspection and Receiving Report, in solicitations and contracts 
when there will be separate and distinct deliverables, even if the 
deliverables are not separately priced. The clause is not required for--
    (1) Contracts awarded using simplified acquisition procedures;
    (2) Negotiated subsistence contracts; or
    (3) Contracts for which the deliverable is a scientific or technical 
report. Insert number of copies and distribution instructions in 
paragraph (a).

[80 FR 12945, Mar. 12, 2015]



PART 1847_TRANSPORTATION--Table of Contents



            Subpart 1847.3_Transportation in Supply Contracts

Sec.
1847.305 Solicitation provisions, contract clauses, and transportation 
          factors.
1847.305-70 NASA contract clauses.

            Subpart 1847.70_Protection of the Florida Manatee

1847.7001 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14028, Mar. 25, 1997, unless otherwise noted.



            Subpart 1847.3_Transportation in Supply Contracts



1847.305  Solicitation provisions, contract clauses, and transportation factors.



1847.305-70  NASA contract clauses.

    (a) The contracting officer may insert a clause substantially as 
stated at 1852.247-72, Advance Notice of Shipment, in solicitations and 
contracts when the f.o.b. point is destination and special Government 
assistance is required in the delivery or receipt of the items.
    (b) The contracting officer shall insert a clause substantially as 
stated at 1852.247-73, Bills of Lading, in f.o.b. origin solicitations 
and contracts.

[62 FR 14028, Mar. 25, 1997, as amended at 67 FR 38908, June 6, 2002]



            Subpart 1847.70_Protection of the Florida Manatee



1847.7001  Contract clause.

    The contracting officer shall insert the clause at 1852.247-71, 
Protection of the Florida Manatee, in solicitations and contracts when 
deliveries or vessel operations, dockside work, or disassembly functions 
under the contract will involve use of waterways inhabited by manatees. 
The clause shall also be included in applicable subcontracts (including 
vendor deliveries).



PART 1849_TERMINATION OF CONTRACTS--Table of Contents



    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14030, Mar. 25, 1997, unless otherwise noted.

[[Page 255]]



PART 1850_EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT
--Table of Contents



            Subpart 1850.1_Extraordinary Contractual Actions

Sec.
1850.102 Delegation of and limitations of exercise of authority.
1850.102-2 Contract adjustment boards.
1850.103 Contract adjustments.
1850.103-5 Processing cases.
1850.103-570 Submission of request to the Contract Adjustment Board.
1850.103-6 Disposition.
1850.103-670 Implementation of the Contract Adjustment Board's decision.
1850.104 Residual powers.
1850.104-2 General.
1850.104-3 Special procedures for unusually hazardous or nuclear risks.
1850.104-370 Subcontractor indemnification requests.
1850.104-4 Contract clause.

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 76 FR 72328, Nov. 23, 2011, unless otherwise noted.



            Subpart 1850.1_Extraordinary Contractual Actions



1850.102  Delegation of and limitations of exercise of authority.



1850.102-2  Contract adjustment boards.

    14 CFR part 1209, subpart 3, Contract Adjustment Board, establishes 
the Contract Adjustment Board (CAB) as the approving authority to 
consider and dispose of requests from NASA contractors for extraordinary 
contractual actions.



1850.103  Contract adjustments.



1850.103-5  Processing cases.



1850.103-570  Submission of request to the Contract Adjustment Board.

    (a) After investigating the facts and issues relevant to the 
contractor's request, the contracting officer shall forward the request 
to the Associate General Counsel for Contracts and Procurement Law, 
including in the forwarding letter--
    (1) The nature of the case;
    (2) The recommended disposition; and,
    (3) If contractual action is recommended, the contracting officer's 
opinion that the action will facilitate the national defense.
    (b) The forwarding letter shall enclose the contractor's request, 
all supporting material submitted by the contractor, and any material 
the contracting officer has obtained while investigating the facts and 
issues relevant to the request. Any classified information in the 
material forwarded shall be so identified.
    (c) Electronic submittal is preferred for unclassified material.

[76 FR 72328, Nov. 23, 2011, as amended at 80 FR 36722, June 26, 2015]



1850.103-6  Disposition.



1850.103-670  Implementation of the Contract Adjustment Board's decision.

    (a) The contracting officer shall take action authorized in the 
CAB's decision.
    (b) Immediately upon execution, including any required Headquarters 
approval, of a contract or contract modification or amendment 
implementing the CAB decision, the contracting officer shall forward a 
copy of the contractual document to the Associate General Counsel for 
Contracts and Procurement Law.

[76 FR 72328, Nov. 23, 2011, as amended at 80 FR 36722, June 26, 2015]



1850.104  Residual powers.



1850.104-2  General.

    (a) Requests for the exercise of residual powers shall be sent to 
the Headquarters Office of Procurement, Program Operations Division for 
review and processing. The NASA Administrator is the approval authority 
for the Memorandum of Decision.

[80 FR 36722, June 26, 2015]



1850.104-3  Special procedures for unusually hazardous or nuclear risks.

    (a) Indemnification requests. (1) Contractor indemnification 
requests must be submitted to the cognizant contracting officer for the 
contract for

[[Page 256]]

which the indemnification clause is requested. The request shall be 
submitted six (6) months in advance of the desired effective date of the 
requested indemnification in order to allow sufficient time for the 
request to be reviewed, analyzed, and approved by the Agency. 
Contractors shall submit a single request and shall ensure that 
duplicate requests are not submitted by associated divisions, 
subsidiaries, or central offices of the contractor.
    (ii) The contractor's request for indemnification must identify a 
sufficient factual basis for indemnification by explaining specifically 
what work activities under the contract create the unusually hazardous 
or nuclear risk and identifying the timeframes in which the risk would 
be incurred.
    (iii) The contractor shall also provide evidence, such as a 
certificate of insurance or other customary proof of insurance, that 
such insurance is either in force or is available and will be in force 
during the indemnified period.
    (b) Action on indemnification requests. (1) If recommending 
approval, the contracting officer shall forward the required information 
to the NASA Headquarters Office of Procurement, Program Operations 
Division, along with the following:
    (i) For contracts of five years duration or longer, a determination, 
with supporting rationale, whether the indemnification approval and 
insurance coverage and premiums should be reviewed for adequacy and 
continued validity at points in time within the extended contract 
period.
    (ii) The specific definition of the unusually hazardous risk to 
which the contractor is exposed in the performance of the contract(s), 
including specificity about which activities present such risk and the 
anticipated timeframes in which the risk will be incurred;
    (iv) A complete discussion of the contractor's financial protection 
program; and
    (vi) The extent to, and conditions under, which indemnification is 
being approved for subcontracts.
    (2) The NASA Administrator is the approval authority for using the 
indemnification clause in a contract by a Memorandum of Decision.
    (4)(ii) If approving subcontractor indemnification, the contracting 
officer shall document the file with a memorandum for record addressing 
the items set forth in FAR 50.104-3(b) and include an analysis of the 
subcontractor's financial protection program. In performing this 
analysis, the contracting officer shall take into consideration the 
availability, cost, terms and conditions of insurance in relation to the 
unusually hazardous risk.

[80 FR 36722, June 26, 2015]



1850.104-370  Subcontractor indemnification requests.

    Subcontractors shall submit requests for indemnification to the 
prime contractor and through higher tier subcontractor(s), as 
applicable. If the prime contractor agrees an indemnity clause should be 
flowed down to the subcontractor, the prime contractor shall forward its 
written request for subcontractor indemnification to the cognizant 
contracting officer for approval in accordance with FAR 50.104-3. The 
prime contractor's request shall provide information responsive to 
1850.104-3, FAR 50.104-3, and FAR 50.104-3(b)(1)(i), (ii), (iv), (v), 
and (vii). The agreed upon definition of the unusually hazardous risk to 
be incorporated into the subcontract shall be the same as that 
incorporated in the prime contract.



1850.104-4  Contract clause.

    The contracting officer shall obtain the NASA Administrator's 
approval prior to including clause 52.250-1 in a contract.

[80 FR 36722, June 26, 2015]



PART 1851_USE OF GOVERNMENT SOURCES BY CONTRACTORS--Table of Contents



    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 62 FR 14032, Mar. 25, 1997, unless otherwise noted.

[[Page 257]]



  Subpart 1851.2_Contractor Use of Interagency Fleet Management System 
                             (IFMS) Vehicles



1851.205  Contract clause.

    When the clause at FAR 52.251-2 is included in a solicitation or 
contract, also include the clause set forth at 1852.223-76.

[68 FR 43334, July 22, 2003]

[[Page 258]]



                     SUBCHAPTER H_CLAUSES AND FORMS





PART 1852_SOLICITATION PROVISIONS AND CONTRACT CLAUSES--Table of Contents



Sec.
1852.000 Scope of part.

             Subpart 1852.2_Texts of Provisions and Clauses

1852.203-70 Display of Inspector General Hotline Posters.
1852.203-71 Requirement to inform employees of whistleblower rights.
1852.204-75 Security classification requirements.
1852.204-76 Security requirements for unclassified information 
          technology resources.
1852.208-81 Restrictions on printing and duplicating.
1852.209-70 [Reserved]
1852.209-71 Limitation of future contracting.
1852.209-72 [Reserved]
1852.211-70 Packaging, handling, and transportation.
1852.213-70 Offeror Representations and Certifications--Other Than 
          Commercial Items.
1852.213-71 Evaluation--Other Than Commercial Items.
1852.214-70 Caution to offerors furnishing descriptive literature.
1852.214-71 Grouping for aggregate award.
1852.214-72 Full quantities.
1852.215-77 Preproposal/pre-bid conference.
1852.215-78 Make or buy program requirements.
1852.215-79 Price adjustment for ``Make- or-Buy'' changes.
1852.215-81 Proposal page limitations.
1852.215-84 Ombudsman.
1852.215-85 Proposal adequacy checklist.
1852.216-72 Award term.
1852.216-73 Estimated cost and cost sharing.
1852.216-74 Estimated cost and fixed fee.
1852.216-75 Payment of fixed fee.
1852.216-76 Award fee for service contracts.
1852.216-77 Award fee for end item contracts.
1852.216-78 Firm fixed price.
1852.216-80 Task ordering procedure.
1852.216-81 Estimated cost.
1852.216-83 Fixed price incentive.
1852.216-84 Estimated cost and incentive fee.
1852.216-85 Estimated cost and award fee.
1852.216-87 [Reserved]
1852.216-88 Performance incentive.
1852.216-89 Assignment and release forms.
1852.216-90 Allowability of legal costs incurred in connection with a 
          whistleblower proceeding.
1852.217-70 [Reserved]
1852.217-71 Phased acquisition using down-selection procedures.
1852.217-72 Phased acquisition using progressive competition down-
          selection procedures.
1852.219-11 Special 8(a) contract conditions.
1852.219-18 Notification of competition limited to eligible 8(a) 
          concerns.
1852.219-73 Small business subcontracting plan.
1852.219-74 [Reserved]
1852.219-75 Individual subcontracting reports.
1852.219-76 [Reserved]
1852.219-77 NASA Mentor-Prot[eacute]g[eacute] program.
1852.219-79 Mentor requirements and evaluation.
1852.219-80 Limitation on subcontracting--SBIR Phase I Program.
1852.219-81 Limitation on subcontracting--SBIR Phase II program.
1852.219-82 Limitation on subcontracting--STTR program.
1852.219-83 Limitation of the principal investigator--SBIR program.
1852.219-84 Limitation of the principal investigator--STTR program.
1852.219-85 Conditions for final payment--SBIR and STTR contracts.
1852.223-70 Safety and health measures and mishap reporting.
1852.223-71 Authorization for radio frequency use.
1852.223-72 Safety and health (short form).
1852.223-73 Safety and health plan.
1852.223-74 Drug- and alcohol-free workforce.
1852.223-75 Major breach of safety or security.
1852.223-76 Federal Automotive Statistical Tool Reporting.
1852.225-8 Duty-free entry of space articles (FEB 2000).
1852.225-70 Export Licenses.
1852.225-72 [Reserved]
1852.227-11 Patent Rights--ownership by the contractor (APR 2015).
1852.227-14 Rights in data--General. (APR 2015)
1852.227-17 Rights in data--Special works (JUL 1997).
1852.227-19 Commercial computer software--Restricted rights (JUL 1997).
1852.227-70 New technology--other than a small business firm or 
          nonprofit organization.
1852.227-71 Requests for waiver of rights to inventions.

[[Page 259]]

1852.227-72 Designation of new technology representative and patent 
          representative.
1852.227-84 Patent rights clauses.
1852.227-85 Invention reporting and rights--Foreign.
1852.227-86 Commercial computer software license.
1852.227-88 Government-furnished computer software and related technical 
          data.
1852.228-70 Aircraft ground and flight risk.
1852.228-71 Aircraft flight risks.
1852.228-75 Minimum insurance coverage.
1852.228-76 Cross-waiver of liability for international space station 
          activities.
1852.228-78 Cross-waiver of liability for science or space exploration 
          activities unrelated to the International Space Station.
1852.228-80 Insurance--Immunity From Tort Liability.
1852.228-81 Insurance--Partial Immunity From Tort Liability.
1852.228-82 Insurance--Total Immunity From Tort Liability.
1852.231-70 Precontract costs.
1852.231-71 Determination of compensation reasonableness.
1852.232-70 NASA Modification of FAR 52.232-12.
1852.232-77 Limitation of funds (Fixed-Price Contract).
1852.232-79 Payment for on-site preparatory costs.
1852.232-80 Submission of vouchers for payment.
1852.232-81 Contract funding.
1852.232-82 Submission of requests for progress payments.
1852.233-70 Protests to NASA.
1852.234-1 Notice of Earned Value Management System.
1852.234-2 Earned Value Management System.
1852.235-70 Center for AeroSpace Information.
1852.235-71 Key personnel and facilities.
1852.235-72 Instructions for responding to NASA Research Announcements.
1852.235-73 Final scientific and technical reports.
1852.235-74 Additional reports of work--research and development.
1852.236-71 Additive or deductive items.
1852.236-72 Bids with unit prices.
1852.236-73 Hurricane plan.
1852.236-74 Magnitude of requirement.
1852.236-75 Partnering for construction contracts.
1852.237-70 Emergency evacuation procedures.
1852.237-71 Pension portability.
1852.237-72 Access to sensitive information.
1852.237-73 Release of sensitive information.
1852.239-70 Alternate delivery points.
1852.241-70 [Reserved]
1852.242-71 Travel outside of the United States.
1852.242-72 Denied access to NASA facilities.
1852.242-73 NASA contractor financial management reporting.
1852.242-78 Emergency medical services and evacuation.
1852.243-70 [Reserved]
1852.243-71 Shared savings.
1852.243-72 Equitable adjustments.
1852.244-70 Geographic participation in the aerospace program.
1852.245-70 Contractor requests for Government-furnished equipment.
1852.245-71 Installation-accountable Government property.
1852.245-72 Liability for Government property furnished for repair or 
          other services.
1852.245-73 Financial reporting of NASA property in the custody of 
          contractors.
1852.245-74 Identification and marking of Government equipment.
1852.245-75 Property management changes.
1852.245-76 List of Government property furnished pursuant to FAR 
          52.245-1.
1852.245-77 List of Government property furnished pursuant to FAR 
          52.245-2.
1852.245-78 Physical inventory of capital personal property.
1852.245-79 Records and disposition reports for Government property with 
          potential historic or significant real value.
1852.245-80 Government property management information.
1852.245-81 List of available Government property.
1852.245-82 Occupancy management requirements.
1852.245-83 Real property management requirements.
1852.246-70 [Reserved]
1852.246-71 Government contract quality assurance functions.
1852.246-72 Material Inspection and Receiving Report.
1852.246-73 Human space flight item.
1852.247-71 Protection of the Florida manatee.
1852.247-72 Advance notice of shipment.
1852.247-73 Bills of Lading.

               Subpart 1852.3_Provision and Clause Matrix

1852.300 Scope of subpart.
1852.301 Solicitation provisions and contract clauses (Matrix).

    Authority: 51 U.S.C. 20113(a) and 48 CFR chapter 1.

    Source: 54 FR 28340, July 5, 1989, unless otherwise noted.



1852.000  Scope of part.

    This part, in conjunction with FAR part 52--

[[Page 260]]

    (a) Sets forth the provisions and clauses prescribed in the NFS,
    (b) Gives instructions for their use, and
    (c) Presents a matrix listing the provisions and clauses applicable 
to each principal contract type and/or purpose (e.g., fixed-price 
supply, cost-reimbursement research and development).

[61 FR 40547, Aug. 5, 1996]



             Subpart 1852.2_Texts of Provisions and Clauses



1852.203-70  Display of Inspector General Hotline Posters.

    As prescribed in 1803.7001, insert the following clause:

         Display of Inspector General Hotline Posters (JUN 2001)

    (a) The Contractor shall display prominently in common work areas 
within business segments performing work under this contract, Inspector 
General Hotline Posters available under paragraph (b) of this clause.
    (b) Inspector General Hotline Posters may be obtained from NASA 
Office of Inspector General, Code W, Washington, DC, 20546-0001, (202) 
358-1220.

[66 FR 29727, June 1, 2001]



1852.203-71  Requirement to inform employees of whistleblower rights.

    As prescribed in 1803.970, use the following clause:

   Requirement to Inform Employees of Whistleblower Rights (AUG 2014)

    (a) The Contractor shall inform its employees in writing, in the 
predominant native language of the workforce, of contractor employee 
whistleblower rights and protections under 10 U.S.C. 2409, as described 
in subpart 1803.9 of the NASA FAR Supplement.
    (b) The Contractor shall include the substance of this clause, 
including this paragraph (b), in all subcontracts.

                             (End of clause)

[79 FR 43961, July 29, 2014, as amended at 79 FR 51501, Aug. 29, 2014; 
80 FR 61994, Oct. 15, 2015]



1852.204-75  Security classification requirements.

    As prescribed in 1804.404-70, insert the following clause:

             Security Classification Requirements (SEP 1989)

    Performance under this contract will involve access to and/or 
generation of classified information, work in a security area, or both, 
up to the level of ________ [insert the applicable security clearance 
level]. See Federal Acquisition Regulation clause 52.204-2 in this 
contract and DD Form 254, Contract Security Classification 
Specification, Attachment ____ [Insert the attachment number of the DD 
Form 254].

                             (End of clause)

[61 FR 40548, Aug. 5, 1996]



1852.204-76  Security requirements for unclassified information 
technology resources.

    As prescribed in 1804.470-4(a), insert the following clause:

Security Requirements for Unclassified Information Technology Resources 
                               (JAN 2011)

    (a) The contractor shall protect the confidentiality, integrity, and 
availability of NASA Electronic Information and IT resources and protect 
NASA Electronic Information from unauthorized disclosure.
    (b) This clause is applicable to all NASA contractors and sub-
contractors that process, manage, access, or store unclassified 
electronic information, to include Sensitive But Unclassified (SBU) 
information, for NASA in support of NASA's missions, programs, projects 
and/or institutional requirements. Applicable requirements, regulations, 
policies, and guidelines are identified in the Applicable Documents List 
(ADL) provided as an attachment to the contract. The documents listed in 
the ADL can be found at: http://www.nasa.gov/offices/ocio/itsecurity/
index.html. For policy information considered sensitive, the documents 
will be identified as such in the ADL and made available through the 
Contracting Officer.
    (c) Definitions. (1) IT resources means any hardware or software or 
interconnected system or subsystem of equipment, that is used to 
process, manage, access, or store electronic information.
    (2) NASA Electronic Information is any data (as defined in the 
Rights in Data clause of this contract) or information (including 
information incidental to contract administration, such as financial, 
administrative, cost or pricing, or management information) that is 
processed, managed, accessed or stored on an IT system(s) in the 
performance of a NASA contract.

[[Page 261]]

    (3) IT Security Management 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. Unlike the IT security plan, which addresses the IT 
system, the IT Security Management Plan addresses how the contractor 
will manage personnel and processes associated with IT Security on the 
instant contract.
    (4) IT Security Plan--this is a FISMA requirement; see the ADL for 
applicable requirements. The IT Security Plan is specific to the IT 
System and not the contract. Within 30 days after award, the contractor 
shall develop and deliver an IT Security Management Plan to the 
Contracting Officer; the approval authority will be included in the ADL. 
All contractor personnel requiring physical or logical access to NASA IT 
resources must complete NASA's annual IT Security Awareness training. 
Refer to the IT Training policy located in the IT Security Web site at 
https://itsecurity.nasa.gov/policies/index.html.
    (d) The contractor shall afford Government access to the 
Contractor's and subcontractors' facilities, installations, operations, 
documentation, databases, and personnel used in performance of the 
contract. Access shall be provided to the extent required to carry out a 
program of IT inspection (to include vulnerability testing), 
investigation and audit to safeguard against threats and hazards to the 
integrity, availability, and confidentiality of NASA Electronic 
Information or to the function of IT systems operated on behalf of NASA, 
and to preserve evidence of computer crime.
    (e) At the completion of the contract, the contractor shall return 
all NASA information and IT resources provided to the contractor during 
the performance of the contract in accordance with retention 
documentation available in the ADL. The contractor shall provide a 
listing of all NASA Electronic information and IT resources generated in 
performance of the contract. At that time, the contractor shall request 
disposition instructions from the Contracting Officer. The Contracting 
Officer will provide disposition instructions within 30 calendar days of 
the contractor's request. Parts of the clause and referenced ADL may be 
waived by the contracting officer, if the contractor's ongoing IT 
security program meets or exceeds the requirements of NASA Procedural 
Requirements (NPR) 2810.1 in effect at time of award. The current 
version of NPR 2810.1 is referenced in the ADL. The contractor shall 
submit a written waiver request to the Contracting Officer within 30 
days of award. The waiver request will be reviewed by the Center IT 
Security Manager. If approved, the Contractor Officer will notify the 
contractor, by contract modification, which parts of the clause or 
provisions of the ADL are waived.
    (f) The contractor shall insert this clause, including this 
paragraph in all subcontracts that process, manage, access or store NASA 
Electronic Information in support of the mission of the Agency.

                             (End of clause)

[76 FR 4080, Jan. 24, 2011, as amended at 80 FR 61994, Oct. 15, 2015]



1852.208-81  Restrictions on Printing and Duplicating.

    As prescribed in 1808.870, insert the following clause:

           Restrictions on Printing and Duplicating (NOV 2004)

    (a) The Contractor may duplicate or copy any documentation required 
by this contract in accordance with the provisions of the Government 
Printing and Binding Regulations, No. 26, S. Pub 101-9, U.S. Government 
Printing Office, Washington, DC, 20402, published by the Joint Committee 
on Printing, U.S. Congress.
    (b) The Contractor shall not perform, or procure from any commercial 
source, any printing in connection with the performance of work under 
this contract. The term ``printing'' includes the processes of 
composition, platemaking, presswork, duplicating, silk screen processes, 
binding, microform, and the end items of such processes and equipment.
    (c) The Contractor is authorized to duplicate or copy production 
units provided the requirement does not exceed 5,000 production units of 
any one page or 25,000 units in the aggregate of multiple pages. Such 
pages may not exceed a maximum image size of 10-\3/4\ by 14-\1/4\ 
inches. A ``production unit'' is one sheet, size 8-\1/2\ x 11 inches 
(215 x 280 mm), one side only, and one color ink.
    (d) This clause does not preclude writing, editing, preparation of 
manuscript copy, or preparation of related illustrative material as a 
part of this contract, or administrative duplicating/copying (for 
example, necessary forms and instructional materials used by the 
Contractor to respond to the terms of the contract).
    (e) Costs associated with printing, duplicating, or copying in 
excess of the limits in paragraph (c) of this clause are unallowable 
without prior written approval of the Contracting Officer. If the 
Contractor has reason to believe that any activity required in 
fulfillment of the contract will necessitate any printing or substantial 
duplicating or copying, it immediately shall provide written notice to 
the Contracting Officer and request

[[Page 262]]

approval prior to proceeding with the activity. Requests will be 
processed by the Contracting Officer in accordance with the provisions 
of the Government Printing and Binding Regulations, NFS 1808.802, and 
NPR 1490.5, NASA Procedural Requirements for Printing, Duplicating, and 
Copying Management.
    (f) The Contractor shall include in each subcontract which may 
involve a requirement for any printing, duplicating, and copying in 
excess of the limits specified in paragraph (c) of this clause, a 
provision substantially the same as this clause, including this 
paragraph (f).

                             (End of clause)

[66 FR 53548, Oct. 23, 2001, as amended at 69 FR 63459, Nov. 2, 2004]



1852.209-70  [Reserved]



1852.209-71  Limitation of future contracting.

    As prescribed in 1809.507-2, the contracting officer may insert a 
clause substantially as follows in solicitations and contracts, in 
compliance with FAR 9.507-2:

               Limitation of Future Contracting (DEC 1988)

    (a) The Contracting Officer has determined that this acquisition may 
give rise to a potential organizational conflict of interest. 
Accordingly, the attention of prospective offerors is invited to FAR 
Subpart 9.5--Organizational Conflicts of Interest.
    (b) The nature of this conflict is [describe the conflict].
    (c) The restrictions upon future contracting are as follows:
    (1) If the Contractor, under the terms of this contract, or through 
the performance of tasks pursuant to this contract, is required to 
develop specifications or statements or work that are to be incorporated 
into a solicitation, the Contractor shall be ineligible to perform the 
work described in that solicitation as a prime of first-tier 
subcontractor under an ensuing NASA contract. This restriction shall 
remain in effect for a reasonable time, as agreed to by the Contracting 
Officer and the Contractor, sufficient to avoid unfair competitive 
advantage or potential bias (this time shall in no case be less than the 
duration of the initial production contract). NASA shall not 
unilaterally require the Contractor to prepare such specifications or 
statements of work under this contract.
    (2) To the extent that the work under this contract requires access 
to proprietary, business confidential, or financial data of other 
companies, and as long as these data remain proprietary or confidential, 
the Contractor shall protect these data from unauthorized use and 
disclosure and agrees not to use them to complete with those other 
companies.

                             (End of clause)

[61 FR 40549, Aug. 5, 1996]



1852.209-72  [Reserved]



1852.211-70  Packaging, handling, and transportation.

    As prescribed in 1811.404-70, insert the following clause:

           Packaging, Handling, and Transportation (SEP 2005)

    (a) The Contractor shall comply with NASA Procedural Requirements 
(NPR) 6000.1, ``Requirements for Packaging, Handling, and Transportation 
for Aeronautical and Space Systems, Equipment, and Associated 
Components'', as may be supplemented by the statement of work or 
specifications of this contract, for all items designated as Class I, 
II, or III.
    (b) The Contractor's packaging, handling, and transportation 
procedures may be used, in whole or in part, subject to the written 
approval of the Contracting Officer, provided (1) the Contractor's 
procedures are not in conflict with any requirements of this contract, 
and (2) the requirements of this contract shall take precedence in the 
event of any conflict with the Contractor's procedures.
    (c) The Contractor must place the requirements of this clause in all 
subcontracts for items that will become components of deliverable Class 
I, II, or III items.

                             (End of clause)

[65 FR 37062, June 13, 2000, as amended at 70 FR 52941, Sept. 6, 2005]



1852.213-70  Offeror Representations and Certifications--Other Than
Commercial Items.

    As prescribed in 1813.302-570, insert the following provision:

Offeror Representations and Certifications--Other Than Commercial Items 
                               (JUL 2004)

    (a) Definitions. As used in this provision--
    ``Emerging small business'' means a small business concern whose 
size is no greater than 50 percent of the numerical size standard for 
the NAICS code designated.
    ``Forced or indentured child labor'' means all work or service--

[[Page 263]]

    (1) Exacted from any person under the age of 18 under the menace of 
any penalty for its nonperformance and for which the worker does not 
offer himself voluntarily; or
    (2) Performed by any person under the age of 18 pursuant to a 
contract the enforcement of which can be accomplished by process or 
penalties.
    ``Service-disabled veteran-owned small business concern''--
    (1) Means a small business concern--
    (i) Not less than 51 percent of which is owned by one or more 
service-disabled veterans or, in the case of any publicly owned 
business, not less than 51 percent of the stock of which is owned by one 
or more service-disabled veterans; and
    (ii) The management and daily business operations of which are 
controlled by one or more service-disabled veterans or, in the case of a 
service-disabled veteran with permanent and severe disability, the 
spouse or permanent caregiver of such veteran.
    (2) Service-disabled veteran means a veteran, as defined in 38 
U.S.C. 101(2), with a disability that is service-connected, as defined 
in 38 U.S.C. 101(16).
    ``Small business concern'' means a concern, including its 
affiliates, that is independently owned and operated, not dominant in 
the field of operation in which it is bidding on Government contracts, 
and qualified as a small business under the criteria in 13 CFR part 121 
and size standards in this solicitation.
    ``Veteran-owned small business concern'' means a small business 
concern--
    (1) Not less than 51 percent of which is owned by one or more 
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any 
publicly owned business, not less than 51 percent of the stock of which 
is owned by one or more veterans; and
    (2) The management and daily business operations of which are 
controlled by one or more veterans.
    ``Women-owned small business concern'' means a small business 
concern--
    (1) That is at least 51 percent owned by one or more women; or, in 
the case of any publicly owned business, at least 51 percent of the 
stock of which is owned by one or more women; and
    (2) Whose management and daily business operations are controlled by 
one or more women.
    (b) Taxpayer Identification Number (TIN) (26 U.S.C. 6109, 31 U.S.C. 
7701). (1) All offerors must submit the information required in 
paragraphs (b)(3) through (b)(5) of this provision to comply with debt 
collection requirements of 31 U.S.C. 7701(c) and 3325(d), reporting 
requirements of 26 U.S.C. 6041, 6041A, and 6050M, and implementing 
regulations issued by the Internal Revenue Service (IRS).
    (2) The TIN may be used by the Government to collect and report on 
any delinquent amounts arising out of the offeror's relationships with 
the Government (31 U.S.C. 7701(c)(3)). If the resulting contract is 
subject to the payment reporting requirements described in FAR 4.904, 
the TIN provided hereunder may be matched with IRS records to verify the 
accuracy of the offeror's TIN.
    (3) Taxpayer Identification Number (TIN).

[ ] TIN:_____________.
[ ] TIN has been applied for.
[ ] TIN is not required because:
    [ ] Offeror is a nonresident alien, foreign corporation, or foreign 
partnership that does not have income effectively connected with the 
conduct of a trade or business in the United States and does not have an 
office or place of business or a fiscal paying agent in the United 
States;
    [ ] Offeror is an agency or instrumentality of a foreign government;
    [ ] Offeror is an agency or instrumentality of the Federal 
Government.

    (4) Type of organization.

[ ] Sole proprietorship;
[ ] Partnership;
[ ] Corporate entity (not tax-exempt);
[ ] Corporate entity (tax-exempt);
[ ] Government entity (Federal, State, or local);
[ ] Foreign government;
[ ] International organization per 26 CFR 1.6049-4;
[ ] Other _____.

    (5) Common parent.

[ ] Offeror is not owned or controlled by a common parent;
[ ] Name and TIN of common parent:
    Name ______________.
    TIN_____________.

    (c) Offerors must complete the following representations when the 
resulting contract will be performed in the United States or its 
outlying areas. Check all that apply.
    (1) Small business concern. The offeror represents as part of its 
offer that it [ ] is, [ ] is not a small business concern.
    (2) Veteran-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents as part of its offer 
that it [ ] is, [ ] is not a veteran-owned small business concern.
    (3) Service-disabled veteran-owned small business concern. [Complete 
only if the offeror represented itself as a veteran-owned small business 
concern in paragraph (c)(2) of this provision.] The offeror represents 
as part of its offer that it [ ] is, [ ] is not a service-disabled 
veteran-owned small business concern.
    (4) Small disadvantaged business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror

[[Page 264]]

represents, for general statistical purposes, that it [ ] is, [ ] is not 
a small disadvantaged business concern as defined in 13 CFR 124.1002.
    (5) Women-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents that it [ ] is, [ ] is 
not a women-owned small business concern.
    (6) Small Business Size for the Small Business Competitiveness
    Demonstration Program and for the Targeted Industry Categories under 
the Small Business Competitiveness Demonstration Program. [Complete only 
if the offeror has represented itself to be a small business concern 
under the size standards for this solicitation.]
    (i) [Complete only for solicitations indicated as being set-aside 
for emerging small businesses in one of the four designated industry 
groups (DIGs).] The offeror represents as part of its offer that it [ ] 
is, [ ] is not an emerging small business.
    (ii) [Complete only for solicitations indicated as being for one of 
the targeted industry categories (TICs) or four designated industry 
groups (DIGs).] Offeror represents as follows:
    (A) Offeror's number of employees for the past 12 months (check the 
Employees column if size standard stated in the solicitation is 
expressed in terms of number of employees); or
    (B) Offeror's average annual gross revenue for the last 3 fiscal 
years (check the Average Annual Gross Number of Revenues column if size 
standard stated in the solicitation is expressed in terms of annual 
receipts).
    (Check one of the following):

--50 or fewer                          --$1 million or less.
--51-100                               --$1,000,001-$2 million.
--101-250                              --$2,000,001-$3.5 million.
--251-500                              --$3,500,001-$5 million.
--501-750                              --$5,000,001-$10 million.
--751-1000                             --$10,000,001-$17 million.
--Over 1000                            --Over $17 million.
 

    (7) HUBZone small business concern. [Complete only if the offeror 
represented itself as a small business concern in paragraph (c)(1) of 
this provision.] The offeror represents as part of its offer that--
    (i) It [ ] is, [ ] is not a HUBZone small business concern listed, 
on the date of this representation, on the List of Qualified HUBZone 
Small Business Concerns maintained by the Small Business Administration, 
and no material change in ownership and control, principal office, or 
HUBZone employee percentage has occurred since it was certified by the 
Small Business Administration in accordance with 13 CFR part 126; and
    (ii) It [ ] is, [ ] is not a joint venture that complies with the 
requirements of 13 CFR part 126, and the representation in paragraph 
(c)(7)(i) of this provision is accurate for the HUBZone small business 
concern or concerns that are participating in the joint venture. [The 
offeror shall enter the name or names of the HUBZone small business 
concern or concerns that are participating in the joint venture: _____.] 
Each HUBZone small business concern participating in the joint venture 
shall submit a separate signed copy of the HUBZone representation.
    (8) (Complete if dollar value of the resultant contract is expected 
to exceed $25,000 and the offeror has represented itself as 
disadvantaged in paragraph (c)(4) of this provision.) [The offeror shall 
check the category in which its ownership falls]:

-- Black American.
-- Hispanic American.
-- Native American (American Indians, Eskimos, Aleuts, or Native 
Hawaiians).
-- Asian-Pacific American (persons with origins from Burma, Thailand, 
Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos, 
Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust 
Territory of the Pacific Islands (Republic of Palau), Republic of the 
Marshall Islands, Federated States of Micronesia, the Commonwealth of 
the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji, 
Tonga, Kiribati, Tuvalu, or Nauru).
-- Subcontinent Asian (Asian-Indian) American (persons with origins from 
India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands, or 
Nepal).
-- Individual/concern, other than one of the preceding.

    (d) Representations required to implement provisions of Executive 
Order 11246--
    (1) Previous contracts and compliance. The offeror represents that--
    (i) It [ ] has, [ ] has not participated in a previous contract or 
subcontract subject to the Equal Opportunity clause of this 
solicitation; and
    (ii) It [ ] has, [ ] has not filed all required compliance reports.
    (2) Affirmative Action Compliance. The offeror represents that--
    (i) It [ ] has developed and has on file, [ ] has not developed and 
does not have on file, at each establishment, affirmative action 
programs required by rules and regulations of the Secretary of Labor (41 
CFR parts 60-1 and 60-2), or
    (ii) It [ ] has not previously had contracts subject to the written 
affirmative action programs requirement of the rules and regulations of 
the Secretary of Labor.
    (e) Buy American Act Certificate. (Applies only if the clause at 
Federal Acquisition Regulation (FAR) 52.225-1, Buy American Act--
Supplies, is included in this solicitation.)

[[Page 265]]

    (1) The offeror certifies that each end product, except those listed 
in paragraph (e)(2) of this provision, is a domestic end product and 
that the offeror has considered components of unknown origin to have 
been mined, produced, or manufactured outside the United States. The 
offeror shall list as foreign end products those end products 
manufactured in the United States that do not qualify as domestic end 
products. The terms ``component,'' ``domestic end product,'' ``end 
product,'' ``foreign end product,'' and ``United States'' are defined in 
the clause of this solicitation entitled ``Buy American Act-Supplies.''
    (2) Foreign End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (3) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25.
    (f)(1) Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate. (Applies only if the clause at FAR 52.225-3, Buy American 
Act--Free Trade Agreements--Israeli Trade Act, is included in this 
solicitation.)
    (i) The offeror certifies that each end product, except those listed 
in paragraph (f)(1)(ii) or (f)(1)(iii) of this provision, is a domestic 
end product and that the offeror has considered components of unknown 
origin to have been mined, produced, or manufactured outside the United 
States. The terms ``component,'' ``domestic end product,'' ``end 
product,'' ``foreign end product,'' and ``United States'' are defined in 
the clause of this solicitation entitled ``Buy American Act--Free Trade 
Agreements--Israeli Trade Act''
    (ii) The offeror certifies that the following supplies are NAFTA 
country end products or Israeli end products as defined in the clause of 
this solicitation entitled ``Buy American Act--Free Trade Agreements--
Israeli Trade Act: NAFTA Country or Israeli End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iii) The offeror shall list those supplies that are foreign end 
products (other than those listed in paragraph (f)(1)(ii) of this 
provision) as defined in the clause of this solicitation entitled ``Buy 
American Act--North American Free Trade Agreement--Israeli Trade Act.'' 
The offeror shall list as other foreign end products those end products 
manufactured in the United States that do not qualify as domestic end 
products.
    Other Foreign End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iv) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25.
    (2) Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate, Alternate I (JAN 2004). If Alternate I to the clause at FAR 
52.225-3 is included in this solicitation, substitute the following 
paragraph (f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
    (f)(1)(ii) The offeror certifies that the following supplies are 
Canadian end products as defined in the clause of this solicitation 
entitled ``Buy American Act--Free Trade Agreements--Israeli Trade Act'':
    Canadian End Products:

                              Line Item No.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(List as necessary)

    (3) Buy American Act--Free Trade Agreements--Israeli Trade Act 
Certificate, Alternate II (JAN 2004). If Alternate II to the clause at 
FAR 52.225-3 is included in this solicitation, substitute the following 
paragraph (f)(1)(ii) for paragraph (f)(1)(ii) of the basic provision:
    (f)(1)(ii) The offeror certifies that the following supplies are 
Canadian end products or Israeli end products as defined in the clause 
of this solicitation entitled ``Buy American Act--Free Trade 
Agreements--Israeli Trade Act'':
    Canadian or Israeli End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (4) Trade Agreements Certificate. (Applies only if the clause at FAR 
52.225-5, Trade Agreements, is included in this solicitation.)
    (i) The offeror certifies that each end product, except those listed 
in paragraph (f)(4)(ii) of this provision, is a U.S.-made, designated 
country, Caribbean Basin country, or FTA country end product, as defined 
in the clause of this solicitation entitled ``Trade Agreements.''
    (ii) The offeror shall list as other end products those end products 
that are not U.S.-

[[Page 266]]

made, designated country, Caribbean Basin country, or NAFTA country end 
products.
    Other End Products:

                   Line Item No. and Country of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[List as necessary]

    (iii) The Government will evaluate offers in accordance with the 
policies and procedures of FAR part 25. For line items subject to the 
Trade Agreements Act, the Government will evaluate offers of U.S.-made, 
designated country, Caribbean Basin country, or FTA country end products 
without regard to the restrictions of the Buy American Act. The 
Government will consider for award only offers of U.S.-made, designated 
country, Caribbean Basin country, or FTA country end products unless the 
Contracting Officer determines that there are no offers for such 
products or that the offers for such products are insufficient to 
fulfill the requirements of the solicitation.
    (g) Certification Regarding Knowledge of Child Labor for Listed End 
Products (Executive Order 13126). [The Contracting Officer must list in 
paragraph (g)(1) any end products being acquired under this solicitation 
that are included in the List of Products Requiring Contractor 
Certification as to Forced or Indentured Child Labor, unless excluded at 
FAR 22.1503(b).]
    (1) Listed end products.

            Listed End Product and Listed Countries of Origin

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (2) Certification. [If the Contracting Officer has identified end 
products and countries of origin in paragraph (g)(1) of this provision, 
then the offeror must certify to either (g)(2)(i) or (g)(2)(ii) by 
checking the appropriate block.]
    [ ] (i) The offeror will not supply any end product listed in 
paragraph (g)(1) of this provision that was mined, produced, or 
manufactured in the corresponding country as listed for that product.
    [ ] (ii) The offeror may supply an end product listed in paragraph 
(g)(1) of this provision that was mined, produced, or manufactured in 
the corresponding country as listed for that product. The offeror 
certifies that it has made a good faith effort to determine whether 
forced or indentured child labor was used to mine, produce, or 
manufacture any such end product furnished under this contract. On the 
basis of those efforts, the offeror certifies that it is not aware of 
any such use of child labor.

                           (End of provision)

    Alternate I (MAR 2004) As prescribed in 1813.302-570(a)(2)(i), add 
the following paragraph to the end of the basic provision and identify 
appropriately:

    ( ) Recovered Material Certification. As required by the Resource 
Conservation and Recovery Act of 1976 (42 U.S.C. 6962(c)(3)(A)(i)), the 
offeror certifies, that the percentage of recovered materials to be used 
in the performance of the contract will be at least the amount required 
by the applicable contract specifications.

    Alternate II (MAR 2004) As prescribed in 1813.302-570(a)(2)(ii), add 
the following paragraph to the end of the basic provision and identify 
appropriately:

 ( ) Historically Black College or University and Minority Institution 
                             Representation

    (1) Definitions. As used in this provision--
    ``Historically black college or university'' means an institution 
determined by the Secretary of Education to meet the requirements of 34 
CFR 608.2. For the Department of Defense, the National Aeronautics and 
Space Administration, and the Coast Guard, the term also includes any 
nonprofit research institution that was an integral part of such a 
college or university before November 14, 1986.
    ``Minority institution'' means an institution of higher education 
meeting the requirements of Section 1046(3) of the Higher Education Act 
of 1965 (20 U.S.C. 1067k, including a Hispanic-serving institution of 
higher education, as def