Last updated on December 6th, 2021 at 10:09 pm
Title 48 – Federal Acquisition Regulations System–Volume 4
CHAPTER 3 – HEALTH AND HUMAN SERVICES
SUBCHAPTER A – GENERAL
PART 300 [RESERVED]
PART 301 – HHS ACQUISITION REGULATION SYSTEM
Subpart 301.1 – Purpose, Authority, and Issuance
301.101 Purpose.
(a) The Department of Health and Human Services (HHS) Acquisition Regulation (HHSAR) establishes uniform HHS acquisition policies and procedures that implement and supplement the Federal Acquisition Regulation (FAR).
(b)(1) The HHSAR contains HHS policies that govern the acquisition process or otherwise control acquisition relationships between HHS’ contracting activities and contractors. The HHSAR contains –
(i) Requirements of law;
(ii) HHS-wide policies;
(iii) Deviations from FAR requirements; and
(iv) Policies that have a significant effect beyond the internal procedures of HHS or a significant cost or administrative impact on contractors or offerors.
(2) Relevant internal procedures, guidance, and information not meeting the criteria in paragraph (b)(1) of this section are issued by HHS in other announcements, internal procedures, guidance, or information.
301.103 Authority.
(b) The Assistant Secretary for Financial Resources (ASFR) prescribes the HHSAR under the authority of 5 U.S.C. 301 and section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 121(c)(2)), as delegated by the Secretary).
(c) The HHSAR is issued in the Code of Federal Regulations (CFR) as chapter 3 of title 48, Department of Health and Human Services Acquisition Regulation. It may be referenced as “48 CFR chapter 3.”
301.106 Office of Management and Budget approval under the Paperwork Reduction Act.
(a) The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) imposes a requirement on Federal agencies to obtain approval from the Office of Management and Budget (OMB) before collecting the same information from 10 or more members of the public.
(b) The following OMB control numbers apply to the information collection and recordkeeping requirements contained in this chapter:
| HHSAR Segment | OMB Control No. |
|---|---|
| 311.7102 | 0990-0434 |
| 311.7202(b) | 0990-0434 |
| 311.7300 | 0990-0436 |
| 337.103(d)(3) | 0990-0430 |
| 337.103(d)(4) | 0990-0433 |
| 370.301 | 0990-0431 |
| 370.401 | 0990-0432 |
| 352.211-1 | 0990-0434 |
| 352.211-2 | 0990-0434 |
| 352.211-3 | 0990-0436 |
| 352.227-11 | 0990-0419 |
| 352.227-14 | 0990-0419 |
| 352.227-71 | 0990-0430 |
| 352.237-72 | 0990-0433 |
| 352.237-73 | 0990-0431 |
| 352.270-4a | 0990-0431 |
| 352.270-4b | 0990-0431 |
| 352.270-10 | 0990-0431 |
| 352.270-11 | 0990-0432 |
| 352.270-5a | 0990-0432 |
| 352.270-5b | 0990-0432 |
Subpart 301.2 [Reserved]
Subpart 301.4 – Deviations from the FAR
301.401 Deviations.
Contracting officers are not permitted to deviate from the FAR or HHSAR without seeking proper approval. With full acknowledgement of FAR 1.102(d) regarding innovative approaches, any deviation to FAR or the HHSAR requires approval by the Senior Procurement Executive (SPE).
Subpart 301.6 – Career Development, Contracting Authority, and Responsibilities
301.602 Contracting officers.
(b) Policy. (1) The Government is not bound by agreements with, or contractual commitments made to, prospective contractors by individuals who do not have delegated contracting authority. Unauthorized commitments do not follow the appropriate process for the expenditure of Government funds. Consequently, the Government may not be able to ratify certain actions, putting a contractor at risk for taking direction from a Federal official other than the contracting officer. See FAR 1.602-1. Government employees responsible for unauthorized commitments are subject to disciplinary action. Contractors perform at their own risk when accepting direction from unauthorized officials. Failure to follow statutory and regulatory processes for the expenditure of Government funds is a very serious matter.
(2) The head of the contracting activity (HCA) is the official authorized to ratify an unauthorized commitment. No other re-delegations are authorized.
(c) Limitations. (5) The HCA shall coordinate the request for ratification with the Office of General Counsel, General Law Division and submit a copy to the SPE.
301.603 Selection, appointment, and termination of appointment of contracting officers.
301.603-1 General.
(a) The Agency head has delegated broad authority to the Chief Acquisition Officer, who in turn has further delegated this authority to the SPE. The SPE has further delegated specific acquisition authority to the Operating and Staff Division heads and the HCAs. The HCA (non-delegable) shall select, appoint, and terminate the appointment of contracting officers.
(b) To ensure proper control of redelegated acquisition authorities, HCAs shall maintain a file containing successive delegations of HCA authority through the contracting officer level.
PART 302 – DEFINITIONS OF WORDS AND TERMS
Subpart 302.1 – Definitions
302.101 Definitions.
(a) Agency head or head of the agency, unless otherwise stated, means the Secretary of Health and Human Services or specified designee.
(b) Contracting Officer’s Representative (COR) is a Federal employee designated in writing by a contracting officer to act as the contracting officer’s representative in monitoring and administering specified aspects of contractor performance after award of a contract or order. In accordance with local procedures, operating divisions (OPDIVs) or staff divisions (STAFFDIVs) may designate CORs for firm fixed-price contracts or orders. COR’s responsibilities may include verifying that:
(1) The contractor’s performance meets the standards set forth in the contract or order;
(2) The contractor meets the contract or order’s technical requirements by the specified delivery date(s) or within the period of performance; and
(3) The contractor performs within cost ceiling stated in the contract or order. CORs must meet the training and certification requirements specified in PGI Part 301.604.
(c) Head of the Contracting Activity (HCA) is an official having overall responsibility for managing a contracting activity, i.e. the organization within an OPDIV or STAFFDIV or other HHS organization which has been delegated broad authority regarding the conduct of acquisition functions.
PART 303 – IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 303.1 – Safeguards
303.101 Standards of conduct.
303.101-3 Agency regulations.
(a)(3) The HHS Standards of Conduct are prescribed in 45 CFR part 73.
303.104-7 Violations or possible violations of the Procurement Integrity Act.
(a)(1) The contracting officer shall submit to the head of the contracting activity (HCA) for review and concurrence the determination (along with supporting documentation) that a reported violation or possible violation of the statutory prohibitions has no impact on the pending award or selection of a contractor for award.
(2) The contracting officer shall refer the determination that a reported violation or possible violation of the statutory prohibitions has an impact on the pending award or selection of a contractor, along with all related information available, to the HCA. The HCA shall –
(i) Refer the matter immediately to the Associate Deputy Assistant Secretary – Acquisition (ADAS-A) for review, who may consult with the appropriate legal office representative and the Office of Inspector General (OIG) as appropriate; and
(ii) Determine the necessary action in accordance with FAR 3.104-7(c) and (d). The HCA shall obtain the approval or concurrence of the ADAS-A before proceeding with an action.
(b) The HCA (non-delegable) shall act with respect to actions taken under the Federal Acquisition Regulation (FAR) clause at 52.203-10, Price or Fee Adjustment for Illegal or Improper Authority.
Subpart 303.2 – Contractor Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
HHS personnel shall report suspected violations of the clause at FAR 52.203-3, Gratuities, to the contracting officer, who will in turn report the matter to the Office of General Counsel (OGC), Ethics Division for disposition.
Subpart 303.6 – Contracts with Government Employees or Organizations Owned or Controlled by Them
303.602 Exceptions.
The HCA (non-delegable) is the official authorized to approve an exception to the policy stated in FAR 3.601.
Subpart 303.7 – Voiding and Rescinding Contracts
303.704 Policy.
(a) For purposes of supplementing FAR subpart 3.7, the HCA (non-delegable) is the designee. Coordination with the Senior Procurement Executive is required.
Subpart 303.8 – Limitation on the Payment of Funds to Influence Federal Transactions
303.808-70 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.203-70, Anti-lobbying, in solicitations and contracts that exceed the simplified acquisition threshold.
Subpart 303.10 – Contractor Code of Business Ethics and Conduct
303.1003 Requirements.
(b) The contracting officer, when notified of a possible contractor violation, in accordance with FAR 3.1003(b), shall notify the OIG and the HCA.
(c)(2) The contracting officer shall specify the title of HHS’ OIG hotline poster and the Web site where the poster can be obtained in paragraph (b)(3) of the clause at FAR 52.203-14.
PART 304 – ADMINISTRATIVE MATTERS
Subpart 304.6 – Contract Reporting
304.602 General.
Follow internal department procedures for reporting information to the Federal Procurement Data System (FPDS) and for resolving technical or policy issues relating to FPDS contract reporting.
304.604 Responsibilities.
The Department of Health and Human Services (HHS) acquisition officials and staff shall report their contract information in FPDS accurately and timely.
Subpart 304.13 – Personal Identity Verification
304.1300 Policy.
To ensure compliance with Homeland Security Presidential Directive-12: Policy for a Common Identification Standard for Federal Employees and Contractors (HSPD-12) and the Presidential Cross Agency Priority for strong authentication, contracting officers shall provide in each acquisition those HSPD-12 requirements necessary for contract performance.
Subpart 304.16 – Unique Procurement Instrument Identifiers
304.1600 Scope of subpart.
This subpart provides guidance for assigning identification numbers to solicitation or contract actions. The Senior Procurement Executive shall be responsible for establishing a numbering system within the department that conforms to Federal Acquisition Regulation (FAR) subpart 4.16.
Subpart 304.70 [Reserved]
Subpart 304.71 – Review and Approval of Proposed Contract Actions
304.7100 Policy.
In accordance with HHS delegated acquisition authority, the FAR, this regulation, internal policies and guidance, the head of the contracting activity (non-delegable) shall establish review and approval procedures for proposed contract actions to ensure that –
(a) Contractual documents are in conformance with law, established policies and procedures, and sound business practices;
(b) Contract actions properly reflect the mutual understanding of the parties; and
(c) The contracting officer is informed of deficiencies and items of questionable acceptability, and takes corrective action.
Subpart 304.72 – Affordable Care Act Prevention and Public Health Fund – Reporting Requirements
304.7200 Scope of subpart.
This subpart implements Section 220 of Public Law 112-74, FY 2012 Labor, HHS and Education Appropriations Act, which requires, semi-annual reporting on the use of funds from the Prevention and Public Health Fund (PPHF), Public Law 111-148, sec. 4002. Contractors that receive awards (or modifications to existing awards) with a value of $25,000 or more funded, in whole or in part, from the PPHF, shall report information specified in the clause at 352.204-70, Prevention and Public Health Fund – Reporting Requirements, including, but not limited to –
(a) The dollar amount of contractor invoices;
(b) The supplies delivered and services performed; and
(c) Specific information on subcontracts with a value of $25,000 or more.
304.7201 Procedures.
(a) In any contract action funded in whole or in part by the PPHF, the contracting officer shall indicate that the contract action is being made under the PPHF, and indicate which products or services are funded under the PPHF. This requirement applies whenever PPHF funds are used, regardless of the contract instrument.
(b) To maximize transparency of PPHF funds that shall be reported by the contractor, the contracting officer shall structure contract awards to allow for separately tracking PPHF funds. For example, the contracting officer may consider awarding dedicated separate contracts when using PPHF funds or establishing contract line item number structures to prevent commingling of PPHF funds with other funds.
(c) Contracting officers shall ensure that the contractor complies with the reporting requirements of 352.204-70. Upon receipt of each report, the contracting officer shall review it for completeness, address any clarity or completeness issues with the contractor, and submit the final approved report in Section 508 compliant format to an Assistant Secretary for Public Affairs point-of-contact for posting on HHS’ PPHF Web site at http://www.hhs.gov/open/prevention/index.html no later than 30 days after the end of the reporting period. If the contractor fails to comply with the reporting requirements, the contracting officer shall exercise appropriate contractual remedies.
(d) The contracting officer shall make the contractor’s failure to comply with the reporting requirements a part of the contractor’s performance information under FAR subpart 42.15.
304.7202 Contract clause.
Insert the clause at 352.204-70, Prevention and Public Health Fund – Reporting Requirements, in all solicitations and contract actions funded in whole or in part with PPHF funds, except classified solicitations and contracts. This includes, but is not limited to, awarding or modifying orders against existing or new contracts issued under FAR subparts 8.4 and 16.5 that will be funded with PPHF funds. Contracting officers shall include this clause in any existing contract or order that will be funded with PPHF funds. This clause is not required for any contract or order which contains a prior version of the clause at 352.204-70.
SUBCHAPTER B – COMPETITION AND ACQUISITION PLANNING
PART 305 – PUBLICIZING CONTRACT ACTIONS
Subpart 305.3 – Synopses of Contract Awards
305.303 Announcement of contract awards.
(a) Public announcement. The contracting officer shall report awards, not exempt under Federal Acquisition Regulation (FAR) 5.303, to the Office of the Assistant Secretary for Legislation (Congressional Liaison Office.)
Subpart 305.5 – Paid Advertisements
305.502 Authority.
Written approval at least one level above the contracting officer shall be obtained prior to placing advertisements or notices in newspapers.
Subpart 305.70 – Publicizing Requirements Funded From the Affordable Care Act Prevention and Public Health Fund
305.7001 Scope.
Pursuant to appropriations acts, this subpart prescribes requirements for posting presolicitation and award notices for actions funded in whole or in part from the Prevention and Public Health Fund (PPHF). The requirements of this subpart enhance transparency to the public.
305.7002 Applicability.
This subpart applies to all actions funded in whole or in part by the PPHF.
305.7003 Publicizing preaward.
Notices of all proposed contract actions, funded in whole or in part by the PPHF, shall be identified on HHS’ Prevention and Public Health Fund Web site at http://www.hhs.gov/open/prevention/index.html no later than 1-day after issuance of the solicitation or other request for proposal or quotation document. When applicable, the notice shall provide a link to the full text; for example, a link to the FedBizOpps notice required by FAR 5.201.
305.7004 Publicizing postaward.
Notices of contract actions exceeding $25,000, funded in whole or in part by the PPHF, shall be identified on HHS’ PPHF Web site at http://www.hhs.gov/open/prevention/index.html no later than 5 days after the contract action occurs.
PART 306 – COMPETITION REQUIREMENTS
Subpart 306.2 – Full and Open Competition After Exclusion of Sources
306.202 Establishing or maintaining alternative sources.
(a) The Senior Procurement Executive (SPE) shall make the determination required in Federal Acquisition Regulation (FAR) 6.202(a).
(b)(1) The contracting officer shall prepare the required determination and findings (D&F), see FAR 6.202(b)(1), based on the data provided by program personnel. The appropriate Competition Advocate (CA) (non-delegable) shall sign the D&F, indicating concurrence. The final determination will be made by the SPE.
Subpart 306.3 – Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements. See FAR 6.302-1.
For acquisitions covered by 42 U.S.C. 247d-6a(b)(2)(A), “available from only one responsible source” shall be deemed to mean “available from only one responsible source or only from a limited number of responsible sources”.
Subpart 306.5 – Competition Advocates
306.501 Requirement.
The Department Competition Advocate for Health and Human Services is located in the Division of Acquisition.
PART 307 – ACQUISITION PLANNING
307.105 Contents of written acquisition plans.
Federal Acquisition Regulation 7.105 specifies the content requirements for a written Acquisition Plan (AP). The Department of Health and Human Services requires a written AP for all acquisitions above the simplified acquisition threshold.
PART 308 – REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 308.4 – Federal Supply Schedules
308.405-6 Limited source justification and approval.
(d)(1) As required by Federal Acquisition Regulation (FAR) 8.405-1 or 8.405-2, the responsible program office must provide a written justification for an acquisition under the Federal Supply Service program that restricts the number of schedule contractors or when procuring an item peculiar to one manufacturer.
Subpart 308.8 – Acquisition of Printing and Related Supplies
308.800 Scope of subpart.
This subpart provides the Department of Health and Human Services (HHS) policy for the acquisition of Government printing and related supplies. The HHS Office of the Assistant Secretary for Public Affairs is responsible for the review and clearance of print and electronic publications, printing and related supplies, audiovisual products, and communication service contracts. See FAR 8.802 for exceptions.
308.801 Definitions.
The terms “printing” and “duplicating/copying” are defined in the Government Printing and Binding Regulations of the Joint Committee on Printing. The regulations are available at http://www.gpo.gov.
308.802 Policy.
In accordance with FAR 8.802(b), the Central Printing and Publications Management Organization at Program Support Center is the HHS designated central printing authority.
308.803 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.208-70, Printing and Duplication, in all solicitations, contracts, and orders over the simplified acquisition threshold, unless printing or increased duplication is authorized by statute.
PART 309 – CONTRACTOR QUALIFICATIONS
Subpart 309.4 – Debarment, Suspension, and Ineligibility
309.403 Definitions.
The following definition applies to this subpart:
The HHS Suspension and Debarment Official is the Deputy Assistant Secretary (DAS) for the Office of Grants and Acquisition Policy and Accountability (OGAPA).
309.404 System for Award Management (SAM) exclusions.
(c) For actions made by HHS pursuant to FAR 9.406 and 9.407, the Office of Recipient Integrity Coordination shall perform the actions required by FAR 9.404(c).
309.405 Effect of listing (compelling reason determinations).
(a) The head of the contracting activity (HCA) (non-delegable) may, with the written concurrence of the Suspension and Debarment Official, make the determinations referenced in FAR 9.405(a) regarding contracts.
(1) If a contracting officer considers it necessary to award a contract, or consent to a subcontract with a debarred or suspended contractor, the contracting officer shall prepare a determination, including all pertinent documentation, and submit it through appropriate acquisition channels to the HCA. The documentation shall include the date by which approval is required and a compelling reason for the proposed action. Compelling reasons for award of a contract or consent to a subcontract with a debarred or suspended contractor include the following:
(i) Only the cited contractor can provide the property or services, and
(ii) The urgency of the requirement dictates that HHS conduct business with the cited contractor.
(2) If the HCA decides to approve the requested action, the HCA shall request the concurrence of the Suspension and Debarment Official and, if given, shall inform the contracting officer in writing of the determination within the required time period.
309.406 Debarment.
309.406-3 Procedures.
Refer all matters appropriate for consideration by an agency Suspension and Debarment Official as soon as practicable to the appropriate Suspension and Debarment Official identified in 309.403. Any person may refer a matter to the Suspension and Debarment Official.
309.407 Suspension.
309.407-3 Procedures.
Refer all matters appropriate for consideration by an agency Suspension and Debarment Official as soon as practicable to the appropriate Suspension and Debarment Official identified in 309.403. Any person may refer a matter to the Suspension and Debarment Official.
309.470 Reporting of suspected causes for debarment or suspension or the taking of evasive actions.
309.470-1 Situations where reports are required.
The contracting officer shall report to the HCA and the Associate Deputy Assistant Secretary – Acquisition whenever the contracting officer –
(a) Knows or suspects that a contractor is committing or has committed any of the acts described in FAR 9.406-2 or 9.407-2; or
(b) Suspects a contractor is attempting to evade the prohibitions of debarment or suspension imposed under FAR 9.405, or any other comparable regulation, by changes of address, multiple addresses, formation of new companies, or by other devices.
PART 310 – MARKET RESEARCH
310.001 Policy.
Market research shall be conducted as prescribed in Federal Acquisition Regulation part 10.
PART 311 – DESCRIBING AGENCY NEEDS
Subpart 311.70 – Section 508 Accessibility Standards
311.7000 Defining electronic and information technology requirements.
The contracting officer shall ensure that requiring activities specify agency needs for electronic and information technology (EIT) supplies and services, and document market research, document EIT requirements, and identify the applicable Section 508 accessibility standards. See FAR 11.002(f) and HHSAR subpart 339.2.
Subpart 311.71 – Public Accommodations and Commercial Facilities.
311.7100 Policy.
(a) It is HHS policy that all contractors comply with current and any future changes to 28 CFR part 36 – Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. For the purpose of this policy, accessibility is defined as both physical access to public accommodations and commercial facilities, and access to aids and services enabling individuals with sensory disabilities to fully participate in events in public accommodations and commercial facilities.
(b) This policy applies to all contracts requiring contractors to conduct events in public accommodations and commercial facilities open to the public or involving HHS personnel, but not ad hoc meetings necessary or incidental to contract performance.
311.7101 Responsibilities.
The contractor shall submit a plan assuring that any event held will meet or exceed the minimum accessibility standards set forth in 28 CFR part 36. A consolidated or master plan for contracts requiring numerous events in public accommodations and commercial facilities is acceptable.
311.7102 Contract clause.
The contracting officer shall insert the clause at 352.211-1, Public Accommodations and Commercial Facilities, in solicitations, contracts, and orders requiring the contractor to conduct events in accordance with 311.7100(b).
Subpart 311.72 – Conference Funding and Sponsorship
311.7200 Policy.
HHS policy requires that all conferences the agency funds or sponsors shall: be consistent with HHS missions, objectives, and policies; represent an efficient and effective use of taxpayer funds; and withstand public scrutiny.
311.7201 Funding and sponsorship.
Funding a conference through a HHS contract does not automatically imply HHS sponsorship, unless the conference is funded entirely by the agency. Also, HHS staff attendance or participation at a conference does not imply HHS conference sponsorship. Accordingly, for non-conference contracts funded entirely by HHS prior to a contractor claiming HHS sponsorship, the contractor must provide the contracting officer a written request for permission to designate HHS the conference sponsor. The OPDIV or STAFFDIV (operating division or staff division) head, or designee, shall approve such requests. The determination on what constitutes a “conference contract” or a “non-conference contract” shall be made by the contracting officer.
311.7202 Contract clause.
To ensure that a contractor:
(a) Properly requests approval to designate HHS the conference sponsor, where HHS is not the sole provider of conference funding; and
(b) Includes an appropriate Federal funding disclosure and content disclaimer statement for conference materials, the contracting officer shall include the clause at 352.211-2, Conference Sponsorship Request and Conference Materials Disclaimer, in solicitations, contracts, and orders providing funding which partially or fully supports a conference.
Subpart 311.73 – Contractor Collection of Information
311.7300 Policy.
In accordance with the Paperwork Reduction Act (PRA), contractors shall not proceed with collecting information from surveys, questionnaires, or interviews until the COR obtains an Office of Management and Budget clearance and the contracting officer issues written approval to proceed. For any contract involving a requirement to collect or record information calling either for answers to identical questions from 10 or more persons other than Federal employees, or information from Federal employees which is outside the scope of their employment, for use by the Federal Government or disclosure to third parties, the contracting officer must comply with the PRA of 1995 (44 U.S.C. 3501 et seq.).
311.7301 Contract clause.
The contracting officer shall insert the clause at 352.211-3, Paperwork Reduction Act, in solicitations, contracts, and orders that require a contractor to collect the same information from 10 or more persons.
PART 312 – ACQUISITION OF COMMERCIAL ITEMS
Subpart 312.1 – Acquisition of Commercial Items – General
312.101 Policy.
Contracting offices shall use the HHS Smarter Buying Program to the maximum extent practicable. See HHS Acquisition Regulation part 307, Acquisition Planning.
Subpart 312.2 – Special Requirements for the Acquisition of Commercial Items
312.202(d) Market research and description of agency need.
Whenever a requiring activity specifies electronic and information technology (EIT) supplies and services subject to Section 508 of the Rehabilitation Act of 1973, as amended, the requiring activity shall acquire commercially available supplies and services to the maximum extent possible while ensuring Section 508 compliance. See part 339.
SUBCHAPTER C – CONTRACTING METHODS AND CONTRACT TYPES
PART 313 – SIMPLIFIED ACQUISITION PROCEDURES
313.003 Policy.
Electronic and information technology (EIT) supplies and services acquired pursuant to Federal Acquisition Regulation part 13 shall comply with Section 508 of the Rehabilitation Act of 1973, as amended. See part 339.
Subpart 313.3 – Simplified Acquisition Methods
313.301 Government-wide commercial purchase card.
(b) Make all HHS transactions utilizing the government-wide commercial purchase card in accordance with the HHS Purchase Card Program.
PART 314 – SEALED BIDDING
Subpart 314.1 – Use of Sealed Bidding
314.103 Policy.
Electronic and information technology (EIT) supplies and services acquired using sealed-bid procedures shall comply with Section 508 of the Rehabilitation Act of 1973, as amended. See part 339.
Subpart 314.4 – Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
(c) The head of the contracting activity (HCA) shall make the determinations specified in FAR 14.404-1(c).
314.407 Mistakes in bids.
314.407-3 Other mistakes disclosed before award.
(e) The HCA has the authority to make determinations under paragraphs (a), (b), (c), and (d) of FAR 14.407-3.
314.407-4 Mistakes after award.
(c) The HCA has the authority to make administrative determinations in connection with alleged post-award mistakes.
PART 315 – CONTRACTING BY NEGOTIATION
Subpart 315.2 – Solicitation and Receipt of Proposals and Information
315.204-5 Part IV – Representations and instructions.
(c) Section M, Evaluation factors for award. (1) The requiring activity shall develop technical evaluation factors and submit them to the contracting officer as part of the acquisition plan or other acquisition request documentation for inclusion in a solicitation. The requiring activity shall indicate the relative importance or weight of the evaluation factors based on the requirements of an individual acquisition.
(2) Only a formal amendment to a solicitation can change the evaluation factors.
315.208 Submission, modification, revision, and withdrawal of proposals.
(b) In addition to the provision in Federal Acquisition Regulation (FAR) 52.215-1, Instructions to Offerors – Competitive Acquisition, if the head of the contracting activity (HCA) determines that biomedical or behavioral research and development (R&D) acquisitions are subject to conditions other than those specified in FAR 52.215-1(c)(3), the HCA may authorize for use in competitive solicitations for R&D, the provision at 352.215-70, Late Proposals and Revisions. This is an authorized FAR deviation.
(2) When the provision at 352.215-70 is included in the solicitation and if the HCA intends to consider a proposal or proposals received after the exact time specified for receipt, the contracting officer, with the assistance of cost or technical personnel as appropriate, shall determine in writing that the proposal(s) meets the requirements of the provision at 352.215-70.
Subpart 315.3 – Source Selection
315.303-70 Policy.
(a) If an operating division (OPDIV) is required by statute to use peer review for technical review of proposals, the requirements of those statutes, any implementing regulatory requirements, the Federal Advisory Committee Act, and as applicable, any approved Department of Health and Human Services Acquisition Regulation (HHSAR) deviation(s) from this subpart take precedence over the otherwise applicable requirements of this subpart.
(b) The statutes that require such review and implementing regulations are as follows: National Institutes of Health – 42 U.S.C. 289a, Peer Review Requirements and 42 CFR part 52h, Scientific Peer Review of Research Grant Applications and Research and Development Contract Projects; Substance Abuse and Mental Health Services Administration – 42 U.S.C. 290aa-3, Peer Review and Agency for Healthcare Research and Quality – 42 U.S.C. 299c-1, Peer review with respect to grants and contracts.
315.304 Evaluation factors and significant subfactors.
When acquiring electronic and information technology supplies and services (EIT) using negotiated procedures, contracting officers shall comply with Section 508 of the Rehabilitation Act of 1973, as amended.
315.305 Proposal evaluation.
(c) Use of non-Federal evaluators. (1) Except when peer review is required by statute as provided in 315.303-70(a), decisions to disclose proposals to non-Federal evaluators shall be made by the official responsible for appointing Source Selection Evaluation Team members in accordance with OPDIV procedures. The avoidance of organizational and personal conflicts of interest must be taken into consideration when making the decision to use non-Federal evaluators.
(2) When a solicited proposal will be disclosed outside the Government to a contractor or a contractor employee for evaluation purposes, the following or similar conditions shall be part of the written agreement with the contractor prior to disclosure:
The contractor agrees that it and its employees, as well as any subcontractors and their employees (in these conditions, “evaluator”) will use the data (trade secrets, business data, and technical data) contained in the proposal for evaluation purposes only. The foregoing requirement does not apply to data obtained from another source without restriction. Any notice or legend placed on the proposal by either HHS or the offeror shall be applied to any reproduction or abstract provided to the evaluator or made by the evaluator. Upon completion of the evaluation, the evaluator shall return to the Government the furnished copy of the proposal or abstract, and all copies thereof, to the HHS office which initially furnished the proposal for evaluation. The evaluator shall not contact the offeror concerning any aspects of a proposal’s contents.
Subpart 315.4 – Contract Pricing
315.404 Proposal analysis.
315.404-2 Information to support proposal analysis.
(a)(2) When some or all information sufficient to determine the reasonableness of the proposed cost or price is already available or can be obtained from the cognizant audit agency, or by other means including data obtained through market research (See FAR part 10 and HHSAR part 310) the contracting officer may request less-than-complete field pricing support (specifying in the request the information needed) or may waive in writing the requirement for audit and field pricing support by documenting the file to indicate what information will be used. When field-pricing support is required, contracting officers shall make the request through the HCA.
Subpart 315.6 – Unsolicited Proposals
315.605 Content of unsolicited proposals.
(d) Warranty by offeror. To ensure against contacts between HHS personnel and prospective offerors that would exceed the limits of advance guidance set forth in FAR 15.604 and potentially result in an unfair advantage to an offeror, the prospective offeror of an unsolicited proposal must include the following warranty in any unsolicited proposal. Contracting officers receiving an unsolicited proposal without this warranty shall not process the proposal until the offeror is notified of the missing language and given an opportunity to submit a proper warranty. If no warranty is provided in a reasonable time, the contracting officer shall reject the unsolicited proposal, notify the offeror of the rejection, and document the actions in the file.
This is to warrant that –
(a) This proposal has not been prepared under Government supervision;
(b) The methods and approaches stated in the proposal were developed by this offeror;
(c) Any contact with HHS personnel has been within the limits of appropriate advance guidance set forth in FAR 15.604; and,
(d) No prior commitments were received from HHS personnel regarding acceptance of this proposal.
(This warranty shall be signed by a responsible management official of the proposing organization who is a person authorized to contractually obligate the organization.)
315.606 Agency procedures.
(a) The HCA is responsible for establishing procedures to comply with FAR 15.606(a).
(b) The HCA or designee shall be the point of contact for coordinating the receipt and processing of unsolicited proposals.
315.606-1 Receipt and initial review.
(d) OPDIVs may consider an unsolicited proposal even though an organization initially submitted it as a grant application. However, OPDIVs shall not award contracts based on unsolicited proposals that have been rejected for grant awards due to lack of scientific merit.
PART 316 – TYPES OF CONTRACTS
Subpart 316.3 – Cost-Reimbursement Contracts
316.307 Contract clauses.
(a)(1) If a contract for research and development is with a hospital (profit or nonprofit), the contracting officer shall modify the “Allowable Cost and Payment” clause at FAR 52.216-7 by deleting from paragraph (a) the words “Federal Acquisition Regulation (FAR) subpart 31.2” and substituting “45 CFR part 75.”
(2) The contracting officer shall also insert the clause at 352.216-70, Additional Cost Principles for Hospitals (Profit or Non-Profit), in solicitations and contracts with a hospital (profit or non-profit) when a cost-reimbursement contract is contemplated.
Subpart 316.5 – Indefinite-Delivery Contracts
316.505 Ordering.
(b)(8) The Department of Health and Human Services (HHS) Competition Advocate is the task-order and delivery-order ombudsman for the department. Ombudsmen for each of the HHS contracting activities shall be designated in writing by the head of the contracting activity. See part 306.
Subpart 316.6 – Time-and-Materials, Labor-Hour, and Letter Contracts
316.603 Letter contracts.
316.603-3 Limitations.
An official one level above the contracting officer shall make the written determination, to be included in the contract file, that no other contract type is suitable and to approve all letter contract modifications. No letter contract or modification can exceed the limits prescribed in FAR 16.603-2(c).
PART 317 – SPECIAL CONTRACTING METHODS
Subpart 317.1 – Multi-Year Contracting
317.104 General.
(b) The Senior Procurement Executive (SPE) is the agency approving official for determinations under Federal Acquisition Regulation (FAR) 17.104(b).
317.105 Policy.
317.105-1 Uses.
(a) Each head of the contracting activity (HCA) determination to use multi-year contracting, as defined in FAR 17.103, is limited to individual acquisitions where the full estimated cancellation ceiling does not exceed 20 percent of the total contract value over the multi-year term or $12.5 million, whichever is less. Cancellation ceiling provisions shall conform to the requirements of FAR 17.106-1(c). The determination is not delegable and shall address the issues in FAR 17.105-1(a).
(b)(1) SPE approval is required for any –
(i) Individual determination to use multi-year contracting with a cancellation ceiling in excess of the limits in 317.105-1(a); or
(ii) Class determination (see FAR subpart 1.7).
(2) A determination involving a cancellation ceiling in excess of the limits in 317.105-1(a) shall present a well-documented justification for the estimated cancellation ceiling. When the estimated cancellation ceiling exceeds $12.5 million, the determination shall accompany a draft congressional notification letter pursuant to FAR 17.108 and 317.108.
317.107 Options.
When included as part of a multi-year contract, use of options shall not extend the performance of the original requirement beyond 5 years. Options may serve as a means to acquire related services (severable or non-severable) and, upon their exercise, shall receive funding from the then-current fiscal year’s appropriation.
317.108 Congressional notification.
(a) The SPE shall give the approval of the written notification required by FAR 17.108(a). Upon approval of the determination required by 317.105-1(b)(1), the HCA will finalize and sign the congressional notification letter and provide it to the appropriate House and Senate committees.
Subpart 317.2 – Options
317.204 Contracts.
(e)(1) Information technology contracts. Notwithstanding FAR 17.204(e), the 5-year limitations apply also to information technology contracts unless a longer period is authorized by statute.
(2) Requests to exceed 5-year limitation. A request to exceed the 5-year limitation specified in FAR 17.204(e) must follow guidance in FAR Part 1.7.
(3) Approval authority. All requests to exceed the 5-year limitations specified in FAR 17.204(e) must be supported with a Determination and Finding and approved by:
(i) The HCA; and
(ii) The HHS SPE.
SUBCHAPTER D – SOCIOECONOMIC PROGRAMS
PART 319 – SMALL BUSINESS PROGRAMS
Subpart 319.2 – Policies
319.201 General policy.
(d) The functional management responsibilities for the Department of Health and Human Services’ (HHS) small business program are delegated to the Office of Small and Disadvantaged Business Utilization (OSDBU) Director.
(e)(1) The HHS OSDBU Director shall exercise full management authority over the small business program. The small business specialist (SBS) shall review and make recommendations for all acquisitions, unless exempted by statute, that are not being set aside for small business in accordance with Federal Acquisition Regulation (FAR) 19.502. The review must take place prior to issuing the solicitation.
(2) Within the Indian Health Service (IHS), the primary SBSs are responsible for IHS’ overall implementation of the HHS small business program; however, each IHS contracting office will assign a small business technical advisor (SBTA) to perform those functions and responsibilities necessary to implement the small business program. The primary IHS SBS shall assist and provide guidance to respective SBTAs.
319.270-1 Mentor Protégé Program Solicitation provision and contract clause.
(a) The contacting officer shall insert the provision at 352.219-70, Mentor-Protégé Program, in solicitations that include the clause at FAR 52.219-9, Small Business Subcontracting Plan. The provision requires offerors to provide the contracting officer a copy of their HHS Office of OSDBU-approved mentor-protégé agreement in response to a solicitation.
(b) The contacting officer shall insert the clause at 352.219-71, Mentor-Protégé Program Reporting Requirements, in contracts that include the clause at FAR 52.219-9, Small Business Subcontracting Plan, and which are awarded to a contractor with an HHS OSDBU-approved mentor-protégé agreement.
PART 322 – APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 322.8 – Equal Employment Opportunity
322.810 Solicitation provisions and contract clauses.
(h) The contracting officer shall insert the clause at 352.222-70, Contractor Cooperation in Equal Employment Opportunity Investigations, in solicitations, contracts, and orders that include the clause at FAR 52.222-26, Equal Opportunity.
PART 323 – ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
323.7000 Scope of subpart.
This subpart provides procedures for administering safety and health requirements.
323.7001 Policy.
The contracting officer shall follow the guidance in this subpart when additional requirements for safety and health are necessary for an acquisition.
323.7002 Actions required.
Contracting activities. The contracting officer shall insert the clause at 352.223-70, Safety and Health, or a clause substantially the same, in solicitations and contracts that involve hazardous materials or hazardous operations for the following types of requirements:
(a) Services or products.
(b) Research, development, or test projects.
(c) Transportation of hazardous materials.
(d) Construction, including construction of facilities on the contractor’s premises.
Subpart 323.71 – Sustainable Acquisition Requirements
323.7100 Policy.
This subpart provides procedures for sustainable acquisitions and use of the following: Designated recycled content; energy efficient, environmentally preferred, Electronic Product Environmental Assessment Tool (EPEAT)-registered, bio-based, water efficient, non-ozone depleting products and services; and alternate fuel vehicles and fuels. The Department of Health and Human Services (HHS) has designated product and service codes for supplies and services having sustainable acquisition attributes. See FAR part 23.
323.7101 Applicability.
It is HHS policy to include a solicitation provision and to include an evaluation factor for an offeror’s Sustainable Action Plan when acquiring sustainable products and services. This applies only to new contracts and orders above the micro-purchase threshold. Such contracts and orders include, but are not limited to: Office supplies; construction, renovation or repair; building operations and maintenance; landscaping services; pest management; electronic equipment, including leasing; fleet maintenance; janitorial services; laundry services; cafeteria operations; and meetings and conference services. If using a product or service code designated for supplies or services having sustainable acquisition attributes but a review of the requirement determines that no opportunity exists to acquire sustainable acquisition supplies or services, document the determination in the contract file and make note in the solicitation.
323.7102 Procedures.
(a) When required by the solicitation, offerors or quoters must include a Sustainable Acquisition Plan in their technical proposal addressing the environmental products and services for delivery under the resulting contract.
(b) The contracting officer shall incorporate the final Sustainable Acquisition Plan into the contract.
(c) The contracting officer shall ensure that sustainability is included as an evaluation factor in all applicable new contracts and orders when the acquisition utilizes a product or service code designated by HHS for supplies or services having sustainable acquisition attributes.
323.7103 Solicitation Provision.
The contracting officer shall insert the provision at 352.223-71, Instruction to Offerors – Sustainable Acquisition, in solicitations above the micro-purchase threshold when the acquisition utilizes a product or service code designated by HHS as having sustainable acquisition attributes.
PART 324 – PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 324.1 – Protection of Individual Privacy
324.103 Procedures for the Privacy Act.
(a) The contracting officer shall review all acquisition request documentation to determine whether the requirements of the Privacy Act of 1974 (5 U.S.C. 552a) are applicable. The Privacy Act requirements apply when a contract or order requires the contractor to design, develop, or operate any Privacy Act system of records on individuals to accomplish an agency function. When applicable, the contracting officer shall include the two Privacy Act clauses required by Federal Acquisition Regulation (FAR) 24.104 in the solicitation and contract or order. In addition, the contracting officer shall include the two FAR Privacy Act clauses, and other pertinent information specified in this subpart, in any modification which results in the Privacy Act requirements becoming applicable to a contract or order.
(b) The contracting officer shall ensure that the statement of work or performance work statement (SOW or PWS) specifies the system(s) of records or proposed system(s) of records to which the Privacy Act and the implementing regulations are applicable or may be applicable. The contracting officer shall send the contractor a copy of 45 CFR part 5b, which includes the rules of conduct and other Privacy Act requirements.
(c) The contracting officer shall ensure that the contract SOW or PWS specifies for both the Privacy Act and the Federal Records Act the disposition to be made of the system(s) of records upon completion of contract performance. The contract SOW or PWS may require the contractor to destroy the records, remove personal identifiers, or turn the records over to the contracting officer. If there is a legitimate need for a contractor to keep copies of the records after completion of a contract, the contractor must take measures, as approved by the contracting officer, to keep the records confidential and protect the individuals’ privacy.
(d) For any acquisition subject to Privacy Act requirements, the requiring activity prior to award shall prepare and have published in the
324.104 Restrictions on Contractor Access to Government or Third Party Information.
The contracting officer shall establish the restrictions that govern the contractor employees’ access to Government or third party information in order to protect the information from unauthorized use or disclosure.
324.105 Contract clauses.
(a) The contracting officer shall insert the clause at 352.224-70, Privacy Act, in solicitations, contracts, and orders that require the design, development, or operation of a system of records to notify the contractor that it and its employees are subject to criminal penalties for violations of the Privacy Act (5 U.S.C. 552a(i)) to the same extent as HHS employees. The clause also requires the contractor to ensure each of its employees knows the prescribed rules of conduct in 45 CFR part 5b and each contractor employee is aware that he or she is subject to criminal penalties for violations of the Privacy Act. These requirements also apply to all subcontracts awarded under the contract or order that require the design, development, or operation of a system of records.
(b) The contracting officer shall insert the clause at 352.224-71, Confidential Information, in solicitations, contracts, and orders that require access to Government or to third party information.
Subpart 324.70 – Health Insurance Portability and Accountability Act of 1996
324.7000 Scope of subpart.
All individually identifiable health information that is Protected Health Information (PHI), as defined in 45 CFR 160.103 shall be administered in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) implementing regulations at 45 CFR parts 160 and 164 (the HIPAA Privacy, Security, and Breach Notification Rules). The term “HIPAA” is used in this part to refer to title II, subtitle F of the HIPAA statute, at part C of title XI of the Social Security Act, 42 U.S.C. 1320d et seq., section 264 of HIPAA, subtitle D of title XIII of the American Recovery and Reinvestment Act of 2009, and regulations under such provisions.
324.7001 Policy on Compliance with HIPAA business associate contract requirements.
(a) HHS is a HIPAA “covered entity” that is a “hybrid entity” as these terms are defined at sections 160.103 and 164.103 respectively. As such, only the portions of HHS that the Secretary has designated as “health care components” (HCC) as defined at section 164.103, are subject to HIPAA. HHS’ HCCs may utilize persons or entities known as “business associates,” as defined at section 160.103. Generally, “business associate” means a “person” as defined by section 160.103 (including contractors, and third-party vendors, etc.) if or when the person or entity:
(1) Creates, receives, maintains, or transmits “protected health information”, as the term is defined at section 160.103, on behalf of an HHS HCC to carry out HHS HIPAA “covered functions” as that term is defined at 164.103; or
(2) Provides certain services to an HHS HCC that involve PHI.
(b) Where the Department as a covered entity is required by 45 CFR 164.502(e)(1) and 164.504(e) and, if applicable, sections 164.308(b)(3) and 164.314(a), to enter into a HIPAA business associate contract, the relevant HCC contracting officer, acting on behalf of the Department, shall ensure that such contract meets the requirements at section 164.504(e)(2) and, if applicable, section 164.314(a)(2).
PART 326 – OTHER SOCIOECONOMIC PROGRAMS
Subpart 326.5 – Indian Preference in Employment, Training, and Subcontracting Opportunities
326.501 Statutory requirements.
Any contract or subcontract pursuant to subchapter II, chapter 14, title 25 of the United States Code, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall, to the greatest extent feasible, comply with section 7(b) of the Indian Self-Determination and Education Assistance Act, Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b) which provides preferences and opportunities for training and employment in connection with the administration of such contracts, and preference in the award of subcontracts in connection with the administration of such contracts to Indian organizations and to Indian-owned economic enterprises as defined in section 1452 of title 25, United States Code.
326.502 Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Indian means a person who is a member of an Indian tribe. If the contractor has reason to doubt that a person seeking employment preference is an Indian, the contractor shall grant the preference but shall require the individual provide evidence within 30 days from the tribe concerned that the person is a member of the tribe.
(b) Indian tribe means an Indian tribe, pueblo, band, nation, or other organized group or community, including any Alaska Native Village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601), which the United States recognizes as eligible for special programs and services because of its status as Indian.
(c) Indian organization means the governing body of any Indian tribe, or entity established or recognized by such governing body, in accordance with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C. 1451).
(d) Indian-owned economic enterprise means any Indian-owned commercial, industrial, or business activity established or organized for the purpose of profit, provided that such Indian ownership shall constitute not less than 51 percent of the enterprise, and the ownership shall encompass active operation and control of the enterprise.
(e) Indian reservation includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601 et seq.).
(f) On or near an Indian reservation means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably commute to and from in the course of a work day.
326.503 Compliance enforcement.
The contracting officer shall promptly investigate and resolve written complaints of noncompliance with the requirements of the clauses at 352.226-1, Indian Preference and 352.226-2, Indian Preference Program filed with the contracting activity.
326.504 Tribal preference requirements.
(a) When the contractor will perform work under a contract on an Indian reservation, the contracting officer may supplement the clause at 352.226-2, Indian Preference Program by adding specific Indian preference requirements of the tribe on whose reservation the contractor will work. The contracting activity and the tribe shall jointly develop supplemental requirements for the contract. Supplemental preference requirements shall represent a further implementation of the requirements of section 7(b) of Public Law 93-638 and require the approval of the affected program director and the appropriate legal office, or a regional attorney, before the contracting officer adds them to a solicitation and resultant contract. Any supplemental preference requirements the contracting officer adds to the clause at 352.226-2, Indian Preference Program shall also clearly identify in the solicitation the additional requirements.
(b) Nothing in this part shall preclude tribes from independently developing and enforcing their own tribal preference requirements. Such independently-developed tribal preference requirements shall not, except as provided in paragraph (a) of this section, become a requirement in contracts covered under this subpart, and shall not conflict with any Federal statutory or regulatory requirement concerning the award and administration of contracts.
326.505 Applicability.
The contracting officer shall insert the clause at 352.226-1, Indian Preference, and the clause at 352.226-2, Indian Preference Program, in contracts to implement section 7(b) of Public Law 93-638 for all Department of Health and Human Services (HHS) activities. Contracting activities shall use the clauses as follows, except for those exempted solicitations and contracts issued and or awarded pursuant to Title I of Public Law 93-638 (25 U.S.C. 450 et seq.):
(a) The contracting officer shall insert the clause at 352.226-1, Indian Preference, in solicitations, contracts, and orders when –
(1) The award is (or will be) pursuant to an act specifically authorizing such awards with Indian organizations; or
(2) The work is specifically for the benefit of Indians and is in addition to any incidental benefits which might otherwise accrue to the general public.
(b) The contracting officer shall insert the clause at 352.226-2, Indian Preference Program, in solicitations, contracts, and orders when –
(1) The dollar amount of the acquisition is expected to equal or exceed $650,000 for non-construction work or $1.5 million for construction work;
(2) The solicitation, contract, or order includes the Indian Preference clause; and
(3) The contracting officer makes the determination, prior to solicitation, that performance will take place in whole or in substantial part on or near an Indian reservation(s). In addition, the contracting officer may insert the Indian Preference Program clause in solicitations, contracts, and orders below the $650,000 or $1.5 million level for non-construction or construction contracts, respectively, but which meet the requirements of paragraphs (b)(2) and (3) of this section, and in the opinion of the contracting officer, offer substantial opportunities for Indian employment, training, and subcontracting.
Subpart 326.6 – Acquisitions Under the Buy Indian Act
326.600 Scope of subpart.
This subpart sets forth the policy on preferential acquisition from Indians under the negotiation authority of the Buy Indian Act. This subpart applies only to acquisitions made by or on behalf of Indian Health Service (IHS).
326.601 Policy.
(a) IHS shall utilize the negotiation authority of the Buy Indian Act to give preference to Indians whenever authorized and practicable. The Buy Indian Act, 25 U.S.C. 47, prescribes the application of the advertising requirements of 41 U.S.C. 6101 to the acquisition of Indian supplies. As specified in 25 U.S.C. 47, the Buy Indian Act provides that, so far as practicable, the Government shall employ Indian labor and, at the discretion of the Secretary of the Interior, purchase products of Indian industry (including, but not limited to printing, notwithstanding any other law) from the open market.
(b) Due to the transfer of authority from the Department of the Interior to HHS, the Secretary of HHS may use the Buy Indian Act to acquire products of Indian industry in connection with the maintenance and operation of Indian hospital and health facilities, and for the overall conservation of Indian health. This authority is exclusively delegated to IHS and is not available for use by any other HHS component (unless that component makes an acquisition on behalf of IHS). However, the Buy Indian Act itself does not exempt IHS from meeting the statutorily mandated small business goals.
(c) Subsequent legislation, particularly Public Law 94-437 and Public Law 96-537, emphasize using the Buy Indian Act negotiation authority.
326.602 Definitions.
(a) Buy Indian contract means any contract involving activities covered by the Buy Indian Act and negotiated under the provisions of 41 U.S.C. 3104 and 25 U.S.C. 47 between an Indian firm and a contracting officer representing IHS.
(b) Indian means a member of any tribe, pueblo, band, group, village, or community recognized by the Secretary of the Interior as being Indian or any individual or group of individuals recognized by the Secretary of the Interior or the Secretary of HHS. The Secretary of HHS in making determinations may take into account the determination of the tribe with which affiliation is claimed.
(c) Indian firm means a sole enterprise, partnership, corporation, or other type of business organization owned, controlled, and operated by:
(1) One or more Indians (including, for the purpose of sections 301 and 302 of Public Law 94-437, former or currently federally recognized Indian tribes in the State of New York); or
(2) By an Indian firm (as defined in paragraph (1) of this definition); or
(3) A nonprofit firm organized for the benefit of Indians and controlled by Indians (see 326.601(a)).
(d) Product of Indian industry means anything produced by Indians through either physical labor or intellectual effort involving the use and application of their skills. To classify as a product of Indian industry, the total cost of the item’s production must equal or exceed 51 percent Indian effort.
326.603 Requirements.
(a) Indian ownership. Indian ownership shall constitute at least 51 percent of an Indian firm during the period covered by a Buy Indian contract.
(b) Joint ventures. An Indian firm may enter into a joint venture with other entities for specific projects as long as the Indian firm is the managing partner. However, the contracting officer shall approve the joint venture prior to the award of a contract under the Buy Indian Act.
(c) Bonds. In the case of contracts for the construction, alteration, or repair of public buildings or public works, the Miller Act (40 U.S.C. 3131 et seq.) and Federal Acquisition Regulation (FAR) part 28 require performance and payment bonds. Bonds are not required in the case of contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe. However, bonds are required when dealing with private business entities owned by an Indian tribe or members of an Indian tribe. The contracting officer may require bonds of private business entities that are joint ventures with, or subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe. A bid guarantee or bid bond is required only when a performance or payment bond is required.
(d) Indian preference in employment, training and subcontracting. Contracts awarded under the Buy Indian Act are subject to the requirements of section 7(b) of the Indian Self-Determination and Education Assistance Act 25 U.S.C. 450e, which requires giving preference to Indians in employment, training, and subcontracting. The contracting officer shall include the Indian Preference clause specified at 326.505(a) in all Buy Indian solicitations and resultant contracts. The contracting officer shall use the Indian Preference Program clause specified at 326.505(b). The contracting officer shall follow all requirements specified in subpart 326.6 which apply to a Buy Indian acquisition (e.g., 326.604 and 326.605).
(e) Subcontracting. A contractor shall not subcontract more than 50 percent of the work under a prime contract awarded pursuant to the Buy Indian Act to non-Indian firms. For this purpose, contract work does not include the provision of materials, supplies, or equipment.
(f) Wage rates. The contracting officer shall include a determination of the minimum wage rates by the Secretary of Labor as required by the Davis-Bacon Act (40 U.S.C. 276a) in all contracts awarded under the Buy Indian Act for over $2,000 for construction, alteration, or repair, including painting and decorating, of public buildings and public works, except contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe.
The contracting officer shall include the wage rate determination in contracts with private business entities, even when owned by an Indian tribe or a member of an Indian tribe and in connection with joint ventures with, or subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe.
326.604 Competition.
(a) Contracts awarded under the Buy Indian Act are subject to competition among Indians or Indian firms to the maximum extent practicable. When the contracting officer determines that competition is not practicable, a justification and approval is required in accordance with subpart 306.3.
(b) The contracting officer shall: Synopsize and publicize solicitations in the Government point of entry and provide copies of the synopses to the tribal office of the Indian tribal government directly concerned with the proposed acquisition as well as to Indian firms and others having a legitimate interest. The synopses shall state that the acquisitions are restricted to Indian firms under the Buy Indian Act.
326.605 Responsibility determinations.
(a) The contracting officer may award a contract under the Buy Indian Act only if it is determined that the contractor will likely perform satisfactorily and properly complete or maintain the contracted project or function.
(b) The contracting officer shall make the written determination specified in paragraph (a) of this section prior to the award of a contract. The determination shall reflect an analysis of FAR 9.104-1 standards.
Subpart 326.7 – Acquisitions Requiring the Native American Graves Protection and Repatriation Act
326.700 Scope of subpart.
Public Law 101-601, dated November 16, 1990, also known as the Native American Graves Protection and Repatriation Act, imposes certain responsibilities on individuals and organizations when they discover Native American cultural items (including human remains) on Federal or tribal lands.
326.701 Applicability.
The contracting officer shall insert the clause at 352.226-3, Native American Graves Protection and Repatriation Act, in solicitations, contracts, and orders requiring performance on tribal lands or those for construction projects on Federal or tribal lands.
SUBCHAPTER E – GENERAL CONTRACTING REQUIREMENTS
PART 327 – PATENTS, DATA, AND COPYRIGHTS
Subpart 327.3 – Patent Rights Under Government Contracts
327.303 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.227-11, Patent Rights – Exceptional Circumstances and any appropriate alternates in lieu of Federal Acquisition Regulation (FAR) 52.227-11 whenever a Determination of Exceptional Circumstances (DEC) involving the provision of materials that has been executed in accordance with Agency policy and procedures calls for its use and the clause at 352.227-11, Patent Rights – Exceptional Circumstances, appropriately covers the circumstances. The contracting officer should reference the DEC in the solicitation and shall attach a copy of the executed DEC to the contract.
Subpart 327.4 – Rights in Data and Copyrights
327.404-70 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.227-70, Publications and Publicity, in solicitations, contracts, and orders that involve requirements which could lead to the contractor’s publishing the results of its work under the contract.
327.409 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.227-14, Rights in Data – Exceptional Circumstances, and any appropriate alternates in lieu of the FAR clause at 52.227-14, Rights in Data-General, whenever a DEC executed in accordance with Agency policy and procedures calls for its use. Prior to using this clause, a DEC must be executed in accordance with Agency policy and procedures. The contracting officer should reference the DEC in the solicitation and shall attach a copy of the executed DEC to the contract.
PART 328 [RESERVED]
PART 330 – COST ACCOUNTING STANDARDS
Subpart 330.2 – CAS Program Requirements
330.201 Contract requirements.
330.201-5 Waiver.
The Senior Procurement Executive (SPE) shall exercise the waiver authority under Federal Acquisition Regulation 30.201-5(a)(2). Operating Divisions and Staff Divisions shall forward waiver requests to the SPE.
PART 331 – CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 331.1 – Applicability
331.101-70 Salary rate limitation.
(a) Beginning in fiscal year 1990, Congress has stipulated in the Department of Health and Human Services appropriations acts and continuing resolutions that, under applicable contracts, appropriated funds cannot be used to pay the direct salary of an individual above the stipulated rates. The applicable rates for each year are identified at www.opm.gov.
(b) The contracting officer shall insert the clause at 352.231-70, Salary Rate Limitation, in solicitations and contracts when a cost-reimbursement; fixed-price level-of-effort; time-and-materials; or labor-hour contract is contemplated.
PART 332 – CONTRACT FINANCING
Subpart 332.4 – Advance Payments for Non-Commercial Items
332.402 General.
(e) The head of the contracting activity (HCA) (non-delegable) shall make determinations related to advanced payments and assure compliance with FAR 32.402.
332.407 Interest.
(d) The HCA (non-delegable) shall make the determinations in FAR 32.407(d).
Subpart 332.5 – Progress Payments Based on Cost
332.501 General.
332.501-2 Unusual progress payments.
(a)(3) The HCA (non-delegable) shall approve unusual progress payments.
Subpart 332.7 – Contract Funding
332.702 Policy.
Departmental employees shall report any suspected violation of the Anti-Deficiency Act (31 U.S.C. 1341, 13 U.S.C. 1342, and 31 U.S.C. 1517) immediately to the Operating Division’s Chief Financial Officer (CFO), who in turn will report the matter to the HHS Deputy CFO.
332.703 Contract funding requirements.
332.703-1 General.
(b) The following requirements govern all solicitations and contracts using incremental funding, as appropriate:
(1) The contracting officer shall consider the estimated total cost of the contract, including all planned increments of performance when determining the requirements that must be met before contract execution (e.g., Justification and Approvals, clearances, and approvals).
(2) The solicitation and resultant contract shall include a statement of work or performance work statement that describes the total project, covers all proposed increments of performance, and contains a schedule of planned increments of performance. No funding increment may exceed 1 year, and the services rendered during each increment of performance must provide a specific material benefit that can stand alone if the remaining effort is not funded. The resultant contract shall also include the corresponding amount of funds planned for obligation for each increment of performance.
(3) The contracting officer shall request that offerors respond to the solicitation with technical and cost proposals for the entire project, and shall require distinct technical and cost break-outs of the planned increments of performance.
(4) Proposals shall be evaluated and any discussions and negotiations shall be conducted based upon the total project, including all planned increments of performance.
332.703-71 Incrementally funded cost-reimbursement contracts.
Incremental funding may be used in cost-reimbursement contracts for severable services only when all of the following circumstances are present:
(a) Funding of increments after the initial increment of performance is provided from the appropriation account available for obligation at that time;
(b) The project represents a bona fide need of the fiscal year in which the contract is awarded and initially funded (i.e., the initial increment of performance) and is also a bona fide need of each subsequent fiscal year whose appropriation will be used; and
(c) The project’s significance provides reasonable assurance that subsequent year appropriations will be made available to fund the project’s continuation and completion.
332.703-72 Incremental Funding Table.
(a) The contracting officer shall insert substantially the following language in Section B: Supplies or Services and Prices or Costs, Table 1, in all cost-reimbursement contracts for severable services using incremental funding. The language requires the contracting officer to:
(1) Insert the initial funding obligated by the award;
(2) Identify the increment of performance covered by the funding provided; and
(3) Specify the start and end dates for each increment of performance, as required by the “Limitation of Funds” clause at FAR 52.232-22.
(b) Modification of the language is permitted to fit specific circumstances of the contract, including but not limited to language necessary to reflect the specific type of cost reimbursement contract awarded, but the language may not be omitted completely.
(a) The total estimated cost to the Government for full performance of this contract, including all allowable direct and indirect costs, is $__ [insert full amount].
(b) The following represents the schedule* by which the Government expects to allot funds to this contract:
| CLIN, task number, or description | Start date of increment of performance | End date of increment of performance | Estimated cost ($) | Fee ($) (as appropriate) | Estimated cost plus fee ($) (as appropriate) |
|---|---|---|---|---|---|
| [Total] | [Total] | [Total] |
* To be inserted after negotiation
(c) Total funds currently obligated and available for payment under this contract are $__ [insert amount funded to date].
(d) The contracting officer may issue unilateral modifications to obligate additional funds to the contract and make related changes to paragraphs (b) and/or (c) above.
(e) Until this contract is fully funded, the requirements of the clause at FAR 52.232-22, Limitation of Funds, shall govern. Once the contract is fully funded, the requirements of the clause at FAR 52.232-20, Limitation of Cost, govern.
332.706 Solicitation provision and contract clauses.
332.706-2 Provision and clauses for limitation of cost or funds.
(b) In addition to the clause at FAR 52.232-22, Limitation of Funds, the contracting officer shall insert the provision at 352.232-70, Incremental Funding, in all solicitations when a cost-reimbursement contract for severable services using incremental funding is contemplated. The provision requires the contracting officer to insert a specific increment of performance that the initial funding is expected to cover.
PART 333 – PROTESTS, DISPUTES, AND APPEALS
Subpart 333.1 – Protests
333.102 General.
(g)(1) The Office of General Counsel-General Law Division serves as the liaison for protests lodged with the Government Accountability Office (GAO); is designated as the office responsible for all protests within the Department of Health and Human Services; and serves as the notification point with GAO for all protests.
(2) The contracting officer will follow the direction of the Operating Division’s protest control officer for responding to protests whether they are filed with GAO or directly with the contracting officer.
333.103 Protests to the agency.
(f)(1) Protests to the contracting officer must be in writing. The contracting officer is authorized to make the determination, using the criteria in Federal Acquisition Regulation 33.104(b), to award a contract notwithstanding the protest after obtaining the concurrence of the contracting activity’s protest control officer and consulting with the appropriate legal office.
Subpart 333.2 – Disputes and Appeals
333.203 Applicability.
(c) The Civilian Board of Contract Appeals is the authorized “Board” to hear and determine disputes for the Department.
333.209 Suspected fraudulent claims.
The contracting officer shall submit any instance of a contractor’s suspected fraudulent claim to the Office of Inspector General for investigation.
333.215-70 Contract clauses.
(a) The contracting officer shall insert the clause at 352.233-70, Choice of Law (Overseas), in solicitations and contracts when performance will be outside the United States, its possessions, and Puerto Rico, except as otherwise provided in a government-to-government agreement.
(b) The contracting officer shall insert the clause at 352.233-71, Litigation and Claims, in solicitations and contracts when a cost-reimbursement, time-and-materials, or labor-hour contract is contemplated (other than a contract for a commercial item).
SUBCHAPTER F – SPECIAL CATEGORIES OF CONTRACTING
PART 334 – MAJOR SYSTEM ACQUISITION
Subpart 334.2 – Earned Value Management System
334.201 Policy.
The Department of Health and Human Services applies the earned value management system requirement as follows:
(a) For cost or incentive contracts and subcontracts valued at $20 million or more, the contractor’s earned value management system shall comply with the guidelines in the American National Standards Institute/Electronic Industries Alliance Standard 748, Earned Value Management Systems (ANSI/EIA-748).
(b) For cost or incentive contracts and subcontracts valued at $50 million or more, the contractor shall have an earned value management system that has been determined by the cognizant Federal agency to be in compliance with the guidelines in ANSI/EIA-748.
(c) For cost or incentive contracts and subcontracts valued at less than $20 million –
(1) The application of earned value management is optional at the discretion of the program/project manager and is a risk-based decision that must be supported by a cost/benefit analysis; and
(2) A decision to apply earned value management shall be documented in the contract file.
(d) For firm-fixed-price contracts and subcontracts of any dollar value the application of earned value management is discouraged.
334.202 Integrated Baseline Reviews (IBRs).
(a) An IBR normally should be conducted as a post-award activity. A pre-award IBR may be conducted only if –
(1) The acquisition plan contains documentation that demonstrates the need and rationale for a pre-award IBR, including an assessment of the impact on the source selection schedule and the expected benefits;
(2) The use of a pre-award IBR is approved in writing by the head of the contracting activity prior to the issuance of the solicitation;
(3) The source selection plan and solicitation specifically addresses how the results of a pre-award IBR will be used during source selection, including any weight to be given to it in source evaluation; and
(4) Specific arrangements are made, and budget authority is provided, to compensate all offerors who prepare for or participate in a pre-award IBR; and the solicitation informs prospective offerors of the means for and conditions of such compensation.
PART 335 – RESEARCH AND DEVELOPMENT CONTRACTING
335.070 Cost-sharing.
335.070-1 Policy.
(a) Contracting activities should encourage contractors to contribute to the cost of performing research and development (R&D), through the use of cost-sharing contracts, where there is a probability that the contractor will receive present or future benefits from participation as described in Federal Acquisition Regulation (FAR) 16.303. Examples include increased technical know-how, training for employees, acquisition of goods or services, development of a commercially viable product that can be sold in the commercial market and use of background knowledge in future contracts. Cost-sharing is intended to serve the mutual interests of the Government and its contractors by helping to ensure efficient utilization of the resources available for the conduct of R&D projects and by promoting sound planning and prudent fiscal policies of the contractor. The Government’s interest includes positive impact on the community at large.
(b) The contracting officer should use a cost-sharing contract for R&D contracts, unless the contracting officer determines that a request for cost-sharing would not be appropriate.
(c) Any determination made by a contracting officer as described in this section shall be evidenced by appropriate documentation in the contract file.
335.070-2 Amount of cost-sharing.
When cost-sharing is appropriate, the contracting officer shall use the following guidelines to determine the amount of cost participation by the contractor:
(a) The amount of cost participation depends on the extent to which the R&D effort or results are likely to enhance the contractor’s capability, expertise, or competitive position, and the value of this enhancement to the contractor. Therefore, contractor cost participation could reasonably range from as little as one percent or less of the total project cost to more than 50 percent of the total project cost. Ultimately, cost-sharing is a negotiable item. As such, the amount of cost-sharing shall be proportional to the anticipated value of the contractor’s gain.
(b) If the contractor will not acquire title to, or the right to use, inventions, patents, or technical information resulting from the R&D project, it is normally appropriate to obtain less cost-sharing than in cases in which the contractor acquires these rights.
(c) If the R&D is expected to be of only minor value to the contractor, and if a statute does not require cost-sharing, it may be appropriate for the contractor to make a contribution in the form of a reduced fee or profit rather than sharing costs of the project. Alternatively, a limitation on indirect cost rates might be appropriate. See FAR 42.707. See also, FAR 16.303.
(d) The contractor’s participation may be considered over the total term of the project, so that a relatively high contribution in 1 year may be offset by a relatively low contribution in another. Care must be exercised that the intent to cost-share in future years does not become illusory. Redetermination of the cost sharing arrangement might be appropriate depending on future circumstances.
(e) A relatively low degree of cost-sharing may be appropriate if an area of R&D requires special stimulus in the national interest.
335.070-3 Method of cost-sharing.
Cost-sharing on individual contracts may be accomplished either by a contribution of part or all of one or more elements of allowable cost of the work being performed or by a fixed amount or stated percentage of the total allowable costs of the project. Contractors shall not charge costs contributed to the Government under any other instrument (e.g., grant or contract), including allocations to other instruments as part of any independent R&D program.
335.071 [Reserved]
335.072 Key personnel.
If the contracting officer determines that the personnel to be assigned to perform effort on an R&D contract are critical to the success of the R&D effort, or were a critical factor in the award of the contract, then the contracting officer should consider using the key personnel clause at 352.237-75, Key Personnel.
PART 336 – CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 336.1 – General
336.104 Policy.
Contracting officers shall follow the policies described in Federal Acquisition Regulation 36.104 and the guidance promulgated by the Department of Health and Human Services Facilities Management.
Subpart 336.5 – Contract Clause
336.570 Contract clause.
(a) The contracting officer shall insert the clause at 352.236-70, Design-Build Contracts, in all solicitations and contracts for all design-build requirements.
(b) The contracting officer shall use Alternate I to the clause at 352.236-70, Design-Build Contracts, in all solicitations and contracts for construction when Fast-Track procedures are being used.
(c) Due to the importance of maintaining consistency in the contractor’s personnel during design-build construction, the contracting officer should consider including the clause at 352.237-75, Key personnel.
PART 337 – SERVICE CONTRACTING – GENERAL
Subpart 337.1 – Service Contracts – General
337.103 Contracting officer responsibility.
(d)(1) The contracting officer shall insert the clause at 352.237-70, Pro-Children Act, in solicitations, contracts, and orders that involve:
(i) Kindergarten, elementary, or secondary education or library services; or
(ii) Health or daycare services that are provided to children under the age of 18 on a routine or regular basis pursuant to the Pro-Children Act of 1994 (20 U.S.C. 6081-6084).
(2) The contracting officer shall insert the clause at 352.237-71, Crime Control Act – Reporting of Child Abuse, in solicitations, contracts, and orders that require performance on Federal land or in a federally operated (or contracted) facility and involve the professions/activities performed by persons specified in the Crime Control Act of 1990 (42 U.S.C. 13031) including, but not limited to, teachers, social workers, physicians, nurses, dentists, health care practitioners, optometrists, psychologists, emergency medical technicians, alcohol or drug treatment personnel, child care workers and administrators, emergency medical technicians and ambulance drivers.
(3) The contracting officer shall insert the clause at 352.237-72, Crime Control Act – Requirement for Background Checks, in solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child- (day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the Crime Control Act of 1990 (42 U.S.C. 13041).
(4) Contracting officers supporting the Indian Health Service shall insert the clause at 352.237-73, Indian Child Protection and Family Violence Act in all solicitations, contracts, and orders when performance of the contract may involve regular contact with or control over Indian children. The required declaration shall also be included in Section J of the solicitation and contract.
(e) The contracting officer shall insert the clause at 352.237-74, Non-Discrimination in Service Delivery, in solicitations, contracts, and orders to deliver services under HHS’ programs directly to the public.
(f) The contracting officer shall insert the clause at 352.237-75, Key Personnel, in solicitations and contracts when the contracting officer will require the contractor to designate contractor key personnel.
PART 339 – ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 339.1 – General
339.101 Policy
In addition to the regulatory guidance in Federal Acquisition Regulation part 39, contracting officers shall collaborate with the requiring activity to ensure information technology (IT) acquisitions for supplies, services, and systems meet the requirements established by the Department of Health and Human Services (HHS).
Subpart 339.2 – Electronic and Information Technology
339.203 Applicability.
(a) Electronic and information technology (EIT) supplies and services must comply with Section 508 of the Rehabilitation Act (the Act) of 1973 (29 U.S.C. 794d), as amended by the Workforce Investment Act of 1998, and the Architectural and Transportation Barriers Compliance Board (Access Board) Electronic and Information Accessibility Standards (36 CFR part 1194). Requiring activities must consult with their Section 508 Official or designee to determine if the contractor should be responsible for compliance with EIT accessibility standards which apply to Web site content and communications material.
(1) When conducting a procurement and employing the best value continuum, the solicitation shall include a separate technical evaluation factor developed by the contracting officer, requiring activity, and the Operating Division (OPDIV) Section 508 Official or designee.
(2) At a minimum, solicitations for supplies and services shall require the submission of a Section 508 Product Assessment Template (See http://www.hhs.gov/web/508 for the template). Solicitations for services shall include any other pertinent information that the contracting officer deems necessary to evaluate the offeror’s ability to meet the applicable Section 508 accessibility standards.
(3) The HHS Operating Division or Staff Division (OPDIV or STAFFDIV) Section 508 Official or designee is responsible for providing technical assistance in development of Section 508 evaluation factors.
(4) Before conducting negotiations or making an award, the contracting officer shall provide a summary of the Source Selection Evaluation Team’s (SSET) assessment of offeror responses to the solicitation’s Section 508 evaluation factor. This summary shall be submitted for review by the Section 508 Official or designee. The Section 508 Official or designee shall indicate approval or disapproval of the SSET assessment. The contracting officer shall coordinate the resolution of any issues raised by the Section 508 Official or designee with the chair of the SSET or requiring activity representative, as appropriate. The acquisition process shall not proceed until the Section 508 Official or designee approves the SSET assessment. The contracting officer shall include the assessment in the official contract file. See 339.204-1 regarding processing exception determination requests.
(b) When acquiring commercial items, if no commercially available supplies or services meet all of the applicable Section 508 accessibility standards, OPDIVs or STAFFDIVs shall, under the direction and approval of the Section 508 Official or designee, acquire the supplies and services that best meet the applicable Section 508 accessibility standards. Process exception determinations for EIT supplies and services not meeting applicable Section 508 accessibility standards in accordance with 339.204-1.
339.203-70 Contract clauses for electronic and information technology (EIT) acquisitions.
(a) The contracting officer shall insert the provision at 352.239-73, Electronic and Information Technology Accessibility Notice, in all solicitations.
(b) The contracting officer shall insert the clause at 352.239-74, Electronic and Information Technology Accessibility, in all contracts and orders.
339.204 Exceptions.
339.204-1 Approval of exceptions.
(a) Procedures to document exception and determination requests are set by the OPDIV Section 508 Official.
(b) In the development of an acquisition plan (AP) or other acquisition request document, the contracting officer shall ensure that all Section 508 exception determination requests for applicable EIT requirements are:
(1) Documented and certified in accordance with the requirements of the HHS Section 508 policy;
(2) Signed by the requestor in the requiring activity;
(3) Certified and approved by the OPDIV Section 508 Official or designee; and
(4) Included in the AP or other acquisition request document provided by the requiring activity to the contracting office.
(c) For instances with an existing technical evaluation and no organization’s proposed supplies or services meet all of the Section 508 accessibility standards; in order to proceed with the acquisition, the requiring activity shall provide an exception determination request along with the technical evaluation team’s assessment of the Section 508 evaluation factor to the designated Section 508 Official or designee for review and approval or disapproval. The contracting officer shall include the Section 508 Official’s or designee’s approval or disapproval of the exception determination request in the official contract file and reference it, as appropriate, in all source selection documents. For further information, see HHS Section 508 Policy on http://www.hhs.gov/web/508.
339.205 Section 508 accessibility standards for contracts.
(a) Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794(d)), as amended by the Workforce Investment Act of 1998 (Section 508), specifies the applicable accessibility standards for all new solicitations and new or existing contracts or orders, regardless of EIT dollar amount.
(b) The requiring activity shall consult with the OPDIV or STAFFDIV Section 508 Official or designee, as necessary, to determine the applicability of Section 508, identify applicable Section 508 accessibility standards, and resolve any related issues before forwarding a request to the contracting or procurement office for the acquisition of EIT supplies and services – including Web site content and communications material for which the contractor must meet EIT accessibility standards.
(c) Based on those discussions, the requiring activity shall provide a statement in the AP (or other acquisition request document) for Section 508 applicability. See 307.105. If Section 508 applies to an acquisition, include the provision at 352.239-73, Electronic and Information Technology and Accessibility Notice, language in a separate, clearly designated, section of the statement of work or performance work statement, along with any additional information applicable to the acquisition’s Section 508 accessibility standards (e.g., the list of applicable accessibility standards of the Access Board EIT Accessibility Standards (36 CFR part 1194)). If an AP does not address Section 508 applicability and it appears an acquisition involves Section 508, or if the discussion of Section 508 applicability to the acquisition is inadequate or incomplete, the contracting officer shall request the requiring activity modify the AP accordingly.
(d) Items provided incidental to contract administration are not subject to this section.
(e) The OPDIV Section 508 Official or designee may, at his or her discretion, require review and approval of solicitations and contracts for EIT supplies and services.
SUBCHAPTER G – CONTRACT MANAGEMENT
PART 342 – CONTRACT ADMINISTRATION
Subpart 342.7 – Indirect Cost Rates
342.705 Final indirect cost rates.
Contract actions for which the Department of Health and Human Services is the cognizant Federal agency:
(a) The Financial Management Services, Division of Cost Allocation, Program Support Center, shall establish facilities and administration costs, also known as indirect cost rates, research patient care rates, and, as necessary, fringe benefits, computer, and other special costing rates for use in contracts awarded to State and local governments, colleges and universities, hospitals, and other nonprofit organizations.
(b) The National Institute of Health, Division of Financial Advisory Services, shall establish indirect cost rates and similar rates for use in contracts awarded to for profit organizations.
SUBCHAPTER H – CLAUSES AND FORMS
PART 352 – SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 352.1 – Instructions for Using Provisions and Clauses
352.100 Scope of subpart.
This subpart provides guidance for applying the Department of Health and Human Services provisions and clauses in solicitations, contracts, and orders.
352.101-70 Application of provisions and clauses.
(a) If a clause is included in the master instrument (e.g., in an indefinite delivery/indefinite quantity contract or a blanket purchase agreement), it is not necessary to also include the clause in a task order or delivery order thereunder.
(b) When a dollar amount or dollar threshold is specified (e.g., $25 million or simplified acquisition threshold), the dollar amount of the award (contract or order) includes any options thereunder.
Subpart 352.2 – Texts of Provisions and Clauses
352.203-70 Anti-Lobbying.
As prescribed in HHSAR 303.808-70, the Contracting Officer shall insert the following clause:
Pursuant to the HHS annual appropriations acts, except for normal and recognized executive-legislative relationships, the Contractor shall not use any HHS contract funds for:
(a) Publicity or propaganda purposes;
(b) The preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television, or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local legislature or legislative body, except in presentation to the Congress or any state or local legislature itself; or designed to support or defeat any proposed or pending regulation, administrative action, or order issued by the executive branch of any state or local government, except in presentation to the executive branch of any state or local government itself; or
(c) Payment of salary or expenses of the Contractor, or any agent acting for the Contractor, related to any activity designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before the Congress or any state government, state legislature or local legislature or legislative body, other than for normal and recognized executive-legislative relationships or participation by an agency or officer of a state, local, or tribal government in policymaking and administrative processes within the executive branch of that government.
(d) The prohibitions in subsections (a), (b), and (c) above shall include any activity to advocate or promote any proposed, pending, or future federal, state, or local tax increase, or any proposed, pending, or future requirement for, or restriction on, any legal consumer product, including its sale or marketing, including, but not limited to, the advocacy or promotion of gun control.
352.204-70 Prevention and Public Health Fund – Reporting Requirements.
As prescribed in HHSAR 304.7201, insert the following clause:
(a) Pursuant to public law this contract requires the contractor to provide products or services or both that are funded from the Prevention and Public Health Fund (PPHF), Public Law 111-148, sec. 4002. Section 220(b)(5) requires each contractor to report on its use of these funds under this contract. These reports will be made available to the public.
(b) Semi-annual reports from the Contractor for all work funded, in whole or in part, by the PPHF, are due no later than 20 days following the end of each 6-month period. The 6-month reporting periods are January through June and July through December. The first report is due no later than 20 days after the end of the 6-month period following contract award. Subsequent reports are due no later than 20 days after the end of each reporting period. If applicable, the Contractor shall submit its final report for the remainder of the contract period no later than 20 days after the end of the reporting period in which the contract ended.
(c) The Contractor shall provide the following information in an electronic and Section 508 compliant format to the Contracting Officer.
(1) The Government contract and order number, as applicable.
(2) The amount of PPHF funds invoiced by the contractor for the reporting period and the cumulative amount invoiced for the contract or order.
(3) A list of all significant services performed or supplies delivered, including construction, for which the contractor invoiced in the reporting period.
(4) Program or project title, if any.
(5) The Contractor shall report any subcontract funded in whole or in part with PPHF funding, that is valued at $25,000 or more. The Contractor shall advise the subcontractor that the information will be made available to the public. The Contractor shall report:
(i) Name and address of the subcontractor.
(ii) Amount of the subcontract award.
(iii) Date of the subcontract award.
(iv) A description of the products or services (including construction) being provided under the subcontract.
352.208-70 Printing and Duplication.
As prescribed in HHSAR 308.803, the Contracting Officer shall insert the following clause:
(a) Unless otherwise specified in this contract, no printing by the Contractor or any subcontractor is authorized under this contract. All printing required must be performed by the Government Printing Office except as authorized by the Contracting Officer. The Contractor shall submit camera-ready copies to the Contracting Officer’s Representative (COR). The terms “printing” and “duplicating/copying” are defined in the Government Printing and Binding Regulations of the Joint Committee on Printing.
(b) If necessary for performance of the contract, the Contractor may duplicate or copy less than 5,000 production units of only one page, or less than 25,000 production units in aggregate of multiple pages for the use of a department or agency. A production unit is defined as one sheet, size 8.5 x 11 inches, one side only, and one color. The pages may not exceed a maximum image size of 10
(c) Approval for all printing, as well as duplicating/copying in excess of the stated limits, shall be obtained from the COR who will consult with the designated publishing services office and provide direction to the contractor. The cost of any unauthorized printing or duplicating/copying under this contract will be considered an unallowable cost for which the Contractor will not be reimbursed.
352.211-1 Public Accommodations and Commercial Facilities.
As prescribed in HHSAR 311.7102, the Contracting Officer shall insert the following clause:
The Contractor agrees as follows:
(a) Except for ad hoc meetings necessary or incidental to contract performance, the Contractor shall develop a plan to assure that any event held pursuant to this contract will meet or exceed the minimum accessibility standards set forth in 28 CFR part 36 – Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. The Contractor shall submit the plan to the Contracting Officer and must receive approval prior to the event. The Contractor may submit a consolidated or master plan for contracts requiring numerous events in lieu of separate plans.
(b) The Contractor shall manage the contract in accordance with the standards set forth in 28 CFR part 36.
352.211-2 Conference Sponsorship Requests and Conference Materials Disclaimer.
As prescribed in HHSAR 311.7202, the Contracting Officer shall insert the following clause:
(a) If HHS is not the sole provider of funding under this contract, then, prior to the Contractor claiming HHS conference sponsorship, the Contractor shall submit a written request (including rationale) to the Contracting Officer for permission to claim such HHS sponsorship.
(b) Whether or not HHS is the conference sponsor, the Contractor shall include the following statement on conference materials, including promotional materials, agendas, and Web sites:
“This conference was funded, in whole or in part, through a contract (insert contract number) with the Department of Health and Human Services (HHS) (insert name of OPDIV or STAFFDIV). The views expressed in written conference materials and by speakers and moderators at this conference, do not necessarily reflect the official policies of HHS, nor does mention of trade names, commercial practices, or organizations imply endorsement by the U.S. Government.”
(c) Unless authorized in writing by the Contracting Officer, the Contractor shall not display the HHS logo on any conference materials.
352.211-3 Paperwork Reduction Act.
As prescribed in HHSAR 311.7301, the Contracting Officer shall insert the following clause:
(a) This contract involves a requirement to collect or record information calling either for answers to identical questions from 10 or more persons other than Federal employees, or information from Federal employees which is outside the scope of their employment, for use by the Federal government or disclosure to third parties; therefore, the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) shall apply to this contract. No plan, questionnaire, interview guide or other similar device for collecting information (whether repetitive or single time) may be used without the Office of Management and Budget (OMB) first providing clearance. Contractors and the Contracting Officer’s Representative shall be guided by the provisions of 5 CFR part 1320, Controlling Paperwork Burdens on the Public, and seek the advice of the HHS operating division or Office of the Secretary Reports Clearance Officer to determine the procedures for acquiring OMB clearance.
(b) The Contractor shall not expend any funds or begin any data collection until the Contracting Officer provides the Contractor with written notification authorizing the expenditure of funds and the collection of data. The Contractor shall allow at least 120 days for OMB clearance. The Contracting Officer will consider excessive delays caused by the Government which arise out of causes beyond the control and without the fault or negligence of the Contractor in accordance with the Excusable Delays or Default clause of this contract.
352.215-70 Late Proposals and Revisions.
As prescribed in HHSAR 315.208, the Contracting Officer shall insert the following provision:
Notwithstanding the procedures contained in FAR 52.215-1(c)(3) of the provision of this solicitation entitled Instructions to Offerors-Competitive Acquisition, the Government may consider a proposal received after the date specified for receipt if it appears to offer significant cost or technical advantage to the Government and it was received before proposals were distributed for evaluation, or within 5 calendar days after the exact time specified for receipt, whichever is earlier.
352.216-70 Additional Cost Principles for Hospitals (Profit and Non-Profit).
As prescribed in HHSAR 316.307(a)(2), the Contracting Officer shall insert the following clause:
(a) Bid and proposal (B&P) costs. (1) B&P costs are the immediate costs of preparing bids, proposals, and applications for potential Federal and non-Federal contracts, grants, and agreements, including the development of scientific, cost, and other data needed to support the bids, proposals, and applications.
(2) B&P costs of the current accounting period are allowable as indirect costs.
(3) B&P costs of past accounting periods are unallowable in the current period. However, if the organization’s established practice is to treat these costs by some other method, they may be accepted if they are found to be reasonable and equitable.
(4) B&P costs do not include independent research and development (IR&D) costs covered by the following paragraph, or pre-award costs covered by paragraph 36 of Attachment B to OMB Circular A-122.
(b) IR&D costs.
(1) IR&D is research and development conducted by an organization which is not sponsored by Federal or non-Federal contracts, grants, or other agreements.
(2) IR&D shall be allocated its proportionate share of indirect costs on the same basis as the allocation of indirect costs to sponsored research and development.
(3) The cost of IR&D, including its proportionate share of indirect costs, is unallowable.
352.219-70 Mentor-Protégé Program.
As prescribed in HHSAR 319.270-1(a), the Contracting Officer shall insert the following provision:
(a) Large business prime contractors serving as mentors in the HHS Mentor-Protégé Program are eligible for HHS subcontracting plan credit, and shall submit a copy of their HHS Office of Small and Disadvantaged Business Utilization (OSDBU)-approved mentor-protégé agreements as part of their offers. The amount of credit provided by the Contracting Officer to a mentor firm for protégé firm developmental assistance costs shall be calculated on a dollar for dollar basis and reported by the mentor firm in the Summary Subcontract Report via the Electronic Subcontracting Reporting System (eSRS) at www.esrs.gov. The mentor firm and protégé firm shall submit to the Contracting Officer a signed joint statement agreeing on the dollar value of the developmental assistance the mentor firm provided. (For example, a mentor firm would report a $10,000 subcontract awarded to a protégé firm and provision of $5,000 of developmental assistance as $15,000 of subcontracting plan credit.) The mentor firm may use this additional credit towards attaining its subcontracting plan participation goal under this contract.
(b) The program consists of –
(1) Mentor firms – large businesses that:
(i) Demonstrate the interest, commitment, and capability to provide developmental assistance to small business protégé firms; and
(ii) Have a Mentor-Protégé agreement approved by HHS’ OSDBU;
(2) Protégé firms – firms that:
(i) Seek developmental assistance;
(ii) Qualify as small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUBZone small businesses, small disadvantaged businesses, or woman-owned small businesses; and
(iii) Have a Mentor-Protégé agreement approved by HHS’ OSDBU; and
(3) Mentor-Protégé agreements – joint agreements, approved by HHS’ OSDBU, which detail the specific terms, conditions, and responsibilities of the mentor-protégé relationship.
352.219-71 Mentor-Protégé Program Reporting Requirements.
As prescribed in HHSAR 319.270-1(b), the Contracting Officer shall insert the following clause:
The Contractor shall comply with all reporting requirements specified in its Mentor-Protégé agreement approved by HHS’ OSDBU.
352.222-70 Contractor Cooperation in Equal Employment Opportunity Investigations.
As prescribed in HHSAR 322.810(h), the Contracting Officer shall insert the following clause:
(a) In addition to complying with the clause at FAR 52.222-26, Equal Opportunity, the Contractor shall, in good faith, cooperate with the Department of Health and Human Services (Agency) in investigations of Equal Employment Opportunity (EEO) complaints processed pursuant to 29 CFR part 1614. For purposes of this clause, the following definitions apply:
(1) Complaint means a formal or informal complaint that has been lodged with Agency management, Agency EEO officials, the Equal Employment Opportunity Commission (EEOC), or a court of competent jurisdiction.
(2) Contractor employee means all current Contractor employees who work or worked under this contract. The term also includes current employees of subcontractors who work or worked under this contract. In the case of Contractor and subcontractor employees, who worked under this contract, but who are no longer employed by the Contractor or subcontractor, or who have been assigned to another entity within the Contractor’s or subcontractor’s organization, the Contractor shall provide the Agency with that employee’s last known mailing address, email address, and telephone number, if that employee has been identified as a witness in an EEO complaint or investigation.
(3) Good faith cooperation cited in paragraph (a) includes, but is not limited to, making Contractor employees available for:
(i) Formal and informal interviews by EEO counselors or other Agency officials processing EEO complaints;
(ii) Formal or informal interviews by EEO investigators charged with investigating complaints of unlawful discrimination filed by Federal employees;
(iii) Reviewing and signing appropriate affidavits or declarations summarizing statements provided by such Contractor employees during the course of EEO investigations;
(iv) Producing documents requested by EEO counselors, EEO investigators, Agency employees, or the EEOC in connection with a pending EEO complaint; and
(v) Preparing for and providing testimony in depositions or in hearings before the MSPB, EEOC and U.S. District Court.
(b) The Contractor shall include the provisions of this clause in all subcontract solicitations and subcontracts awarded at any tier under this contract.
(c) Failure on the part of the Contractor or its subcontractors to comply with the terms of this clause may be grounds for the Contracting Officer to terminate this contract for default.
352.223-70 Safety and Health.
As prescribed in HHSAR 323.7002, the Contracting Officer shall insert the following clause:
(a) To help ensure the protection of the life and health of all persons, and to help prevent damage to property, the Contractor shall comply with all Federal, State, and local laws and regulations applicable to the work being performed under this contract. These laws are implemented or enforced by the Environmental Protection Agency, Occupational Safety and Health Administration (OSHA) and other regulatory/enforcement agencies at the Federal, State, and local levels.
(1) In addition, the Contractor shall comply with the following regulations when developing and implementing health and safety operating procedures and practices for both personnel and facilities involving the use or handling of hazardous materials and the conduct of research, development, or test projects:
(i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450, Occupational exposure to hazardous chemicals in laboratories; and other applicable occupational health and safety standards issued by OSHA and included in 29 CFR part 1910. These regulations are available at https://www.osha.gov/.
(ii) Nuclear Regulatory Commission Standards and Regulations, pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et seq.). The Contractor may obtain copies from the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
(2) The following Government guidelines are recommended for developing and implementing health and safety operating procedures and practices for both personnel and facilities:
(i) Biosafety in Microbiological and Biomedical Laboratories, CDC. This publication is available at http://www.cdc.gov/biosafety/publications/index.htm.
(ii) Prudent Practices for Safety in Laboratories (1995), National Research Council, National Academy Press, 500 Fifth Street NW., Lockbox 285, Washington, DC 20055 (ISBN 0-309-05229-7). This publication is available at http://www.nap.edu/catalog/4911/prudent-practices-in-the-laboratory-handling-and-disposal-of-chemicals.
(b) Further, the Contractor shall take or cause to be taken additional safety measures as the Contracting Officer, in conjunction with the Contracting Officer’s Representative or other appropriate officials, determines to be reasonably necessary. If compliance with these additional safety measures results in an increase or decrease in the cost or time required for performance of any part of work under this contract, the Contracting Officer will make an equitable adjustment in accordance with the applicable “Changes” clause set forth in this contract.
(c) The Contractor shall maintain an accurate record of, and promptly report to the Contracting Officer, all accidents or incidents resulting in the exposure of persons to toxic substances, hazardous materials or hazardous operations; the injury or death of any person; or damage to property incidental to work performed under the contract resulting from toxic or hazardous materials and resulting in any or all violations for which the Contractor has been cited by any Federal, State or local regulatory/enforcement agency. The report citing all accidents or incidents resulting in the exposure of persons to toxic substances, hazardous materials or hazardous operations; the injury or death of any person; or damage to property incidental to work performed under the contract resulting from toxic or hazardous materials and resulting in any or all violations for which the Contractor has been cited shall include a copy of the notice of violation and the findings of any inquiry or inspection, and an analysis addressing the impact these violations may have on the work remaining to be performed. The report shall also state the required action(s), if any, to be taken to correct any violation(s) noted by the Federal, State, or local regulatory/enforcement agency and the time frame allowed by the agency to accomplish the necessary corrective action.
(d) If the Contractor fails or refuses to comply with the Federal, State or local regulatory/enforcement agency’s directive(s) regarding any violation(s) and prescribed corrective action(s), the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action (as approved by the Federal, State, or local regulatory/enforcement agencies) has been taken and documented to the Contracting Officer. No part of the time lost due to any such stop work order shall form the basis for a request for extension or costs or damages by the Contractor.
(e) The Contractor shall insert the substance of this clause in each subcontract involving toxic substances, hazardous materials, or hazardous operations. The Contractor is responsible for the compliance of its subcontractors with the provisions of this clause.
352.223-71 Instructions to Offerors – Sustainable Acquisition.
As prescribed in HHSAR 323.7103, the Contracting Officer shall insert the following provision:
Offerors must include a Sustainable Acquisition Plan in their technical proposals. The Plan must describe their approach and the quality assurance mechanisms in place for applying FAR 23.1, Sustainable Acquisition Policy (and other Federal laws, regulations and Executive Orders governing sustainable acquisition purchasing) to this acquisition. The Plan shall clearly identify those products and services included in Federal sustainable acquisition preference programs by categorizing them along with their respective price/cost in the following eight groups: Recycled Content, Energy Efficient, Biobased, Environmentally Preferable, Electronic Product Environment Assessment Tool, Water-Efficient, Non-Ozone Depleting Substances, and Alternative Fuel Vehicle and Alternative Fuels.
352.224-70 Privacy Act.
As prescribed in HHSAR 324.105(a), the Contracting Officer shall insert the following clause:
This contract requires the Contractor to perform one or more of the following: (a) Design; (b) develop; or (c) operate a Federal agency system of records to accomplish an agency function in accordance with the Privacy Act of 1974 (Act) (5 U.S.C. 552a(m)(1)) and applicable agency regulations.
The term system of records means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. Violations of the Act by the Contractor and/or its employees may result in the imposition of criminal penalties (5 U.S.C. 552a(i)).
The Contractor shall ensure that each of its employees knows the prescribed rules of conduct in 45 CFR part 5b and that each employee is aware that he/she is subject to criminal penalties for violation of the Act to the same extent as Department of Health and Human Services employees. These provisions also apply to all subcontracts the Contractor awards under this contract which require the design, development or operation of the designated system(s) of records (5 U.S.C. 552a(m)(1)). The contract work statement:
(a) Identifies the system(s) of records and the design, development, or operation work the Contractor is to perform; and
(b) Specifies the disposition to be made of such records upon completion of contract performance.
352.224-71 Confidential Information.
As prescribed in HHSAR 324.105(b), insert the following clause:
(a) Confidential Information, as used in this clause, means information or data of a personal nature about an individual, or proprietary information or data submitted by or pertaining to an institution or organization.
(b) Specific information or categories of information that the Government will furnish to the Contractor, or that the Contractor is expected to generate, which are confidential may be identified elsewhere in this contract. The Contracting Officer may modify this contract to identify Confidential Information from time to time during performance.
(c) Confidential Information or records shall not be disclosed by the Contractor until:
(1) Written advance notice of at least 45 days shall be provided to the Contracting Officer of the Contractor’s intent to release findings of studies or research, to which an agency response may be appropriate to protect the public interest or that of the agency.
(2) For information provided by or on behalf of the government,
(i) The publication or dissemination of the following types of information are restricted under this contract: [INSERT RESTRICTED TYPES OF INFORMATION. IF NONE, SO STATE.]
(ii) The reason(s) for restricting the types of information identified in subparagraph (i) is/are: [STATE WHY THE PUBLIC OR GOVERNMENT INTEREST REQUIRES THE RESTRICTION OF EACH TYPE OF INFORMATION. ANY BASIS FOR NONDISCLOSURE WHICH WOULD BE VALID UNDER THE FREEDOM OF INFORMATION ACT IS SUFFICIENT UNDER THIS CLAUSE.]
(iii) Written advance notice of at least 45 days shall be provided to the Contracting Officer of the Contractor’s intent to disseminate or publish information identified in subparagraph (2)(i). The contractor shall not disseminate or publish such information without the written consent of the Contracting Officer.
(d) Whenever the Contractor is uncertain with regard to the confidentiality of or a property interest in information under this contract, the Contractor should consult with the Contracting Officer prior to any release, disclosure, dissemination, or publication.
352.226-1 Indian Preference.
As prescribed in HHSAR 326.505(a), the Contracting Officer shall insert the following clause:
(a) The Contractor agrees to give preference in employment opportunities under this contract to Indians who can perform required work, regardless of age (subject to existing laws and regulations), sex, religion, or tribal affiliation. To the extent feasible and consistent with the efficient performance of this contract, the Contractor further agrees to give preference in employment and training opportunities under this contract to Indians who are not fully qualified to perform regardless of age (subject to existing laws and regulations), sex, religion, or tribal affiliation. The Contractor also agrees to give preference to Indian organizations and Indian-owned economic enterprises in the awarding of any subcontracts to the extent feasible and consistent with the efficient performance of this contract. The Contractor shall maintain the necessary statistical records to demonstrate compliance with this paragraph.
(b) In connection with the Indian employment preference requirements of this clause, the Contractor shall provide reasonable opportunities for training, incident to such employment. Such training shall include on-the-job, classroom, or apprenticeship training designed to increase the vocational effectiveness of an Indian employee.
(c) If the Contractor is unable to fill its employment and training opportunities after giving full consideration to Indians as required by this clause, the Contractor may satisfy those needs by selecting non-Indian persons in accordance with the clause of this contract entitled “Equal Opportunity.”
(d) If no Indian organizations or Indian-owned economic enterprises are available under reasonable terms and conditions, including price, for awarding of subcontracts in connection with the work performed under this contract, the Contractor agrees to comply with the provisions of this contract involving utilization of small businesses; HUBZone small businesses; service-disabled, veteran-owned small businesses; 8(a) small businesses; veteran-owned small businesses; women-owned small businesses; or small disadvantaged businesses.
(e) As used in this clause,
(1) Indian means a person who is a member of an Indian tribe. If the Contractor has reason to doubt that a person seeking employment preference is an Indian, the Contractor shall grant the preference but shall require the individual provide evidence within 30 days from the tribe concerned that the person is a member of the tribe.
(2) Indian tribe means an Indian tribe, pueblo, band, nation, or other organized group or community, including Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601) which the United States recognizes as eligible for the special programs and services provided to Indians because of its status as Indians.
(3) Indian organization means the governing body of any Indian Tribe or entity established or recognized by such governing body in accordance with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 1451).
(4) Indian-owned economic enterprise means any Indian-owned commercial, industrial, or business activity established or organized for the purpose of profit, provided that such Indian ownership shall constitute not less than 51 percent of the enterprise, and that ownership shall encompass active operation and control of the enterprise.
(f) The Contractor agrees to include the provisions of this clause, including this paragraph (f) of this clause, in each subcontract awarded at any tier under this contract.
(g) In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may pursue any other remedies authorized by law or by other provisions of the contract.
352.226-2 Indian Preference Program.
As prescribed in HHSAR 326.505(b), the Contracting Officer shall insert the following clause:
(a) In addition to the requirements of the clause of this contract entitled “Indian Preference,” the Contractor agrees to establish and conduct an Indian preference program which will expand opportunities for Indians to receive preference for employment and training in connection with the work performed under this contract, and which will expand the opportunities for Indian organizations and Indian-owned economic enterprises to receive a preference in the awarding of subcontracts. In this connection, the Contractor shall perform the following:
(1) Designate a liaison officer who will maintain liaison with the Government and the Tribe(s) on Indian preference matters; supervise compliance with the provisions of this clause; and administer the Contractor’s Indian preference program.
(2) Advise its recruitment sources in writing and include a statement in all employment advertisements that Indian applicants receive preference in employment and training incident to such employment.
(3) Not more than 20 calendar days after award of the contract, post a written notice setting forth the Contractor’s employment needs and related training opportunities in the tribal office of any reservations on or near the contract work location. The notice shall include the approximate numbers and types of employees needed; the approximate dates of employment; any experience or special skills required for employment; training opportunities available; and other pertinent information necessary to advise prospective employees of any other employment requirements. The Contractor shall also request the tribe(s) on or near whose reservation(s) the Contractor will perform contract work to provide assistance filling its employment needs and training opportunities. The Contracting Officer will advise the Contractor of the name, location, and phone number of the Tribal officials to contact regarding the posting of notices and requests for Tribal assistance.
(4) Establish and conduct a subcontracting program which gives preference to Indian organizations and Indian-owned economic enterprises as subcontractors (including suppliers) under this contract. The Contractor shall give public notice of existing subcontracting opportunities and, to the extent feasible and consistent with the efficient performance of this contract, shall solicit bids or proposals from Indian organizations or Indian-owned economic enterprises only. The Contractor shall request assistance and information on Indian firms qualified as subcontractors (including suppliers) from the Tribe(s) on or near whose reservation(s) the Contractor will perform contract work. The Contracting Officer will advise the Contractor of the name, location, and phone number of the Tribal officials to contact regarding the request for assistance and information. Public notices and solicitations for existing subcontracting opportunities shall provide an equitable opportunity for Indian firms to submit bids or proposals by including –
(i) A clear description of the supplies or services required, including quantities, specifications, and delivery schedules that facilitate the participation of Indian firms;
(ii) A statement indicating that Indian organizations and Indian-owned economic enterprises will receive preference in accordance with section 7(b) of Public Law 93-638; 88 Stat. 2205; 25 U.S.C. 450e(b);
(iii) Definitions for the terms “Indian organization” and “Indian-owned economic enterprise” prescribed under the “Indian Preference” clause of this contract;
(iv) A statement that the bidder or offeror shall complete certifying that it is an Indian organization or Indian-owned economic enterprise; and
(v) A closing date for receipt of bids or proposals which provides sufficient time for preparation and submission of a bid or proposal. If, after soliciting bids or proposals from Indian organizations and Indian-owned economic enterprises, the Contractor receives no responsive bid or acceptable proposal, the Contractor shall comply with the requirements of paragraph (d) of the “Indian Preference” clause of this contract. If the Contractor receives one or more responsive bids or conforming proposals, the Contractor shall award the contract to the low, responsive, responsible bidder or conforming offer from a responsible offeror if the price is reasonable. If the Contractor determines the low responsive bid or conforming proposal’s price is unreasonable, the Contractor shall attempt to negotiate a reasonable price and award a subcontract. If parties cannot agree on a reasonable price, the Contractor shall comply with the requirements of paragraph (d) of the “Indian Preference” clause of this contract.
(5) Maintain written records under this contract which demonstrate –
(i) The numbers of Indians seeking employment for each employment position available under this contract;
(ii) The number and types of positions filled by Indians and non-Indians;
(iii) The total number of Indians employed under this contract;
(iv) For those positions having both Indian and non-Indian applicants, and a non-Indian is selected for employment, the reason(s) why the Contractor did not select the Indian applicant;
(v) Actions taken to give preference to Indian organizations and Indian-owned economic enterprises for subcontracting opportunities which exist under this contract;
(vi) Reasons why Indian subcontractors and or suppliers did not receive preference for each requirement where the Contractor determined that such preference was inconsistent with efficient contract performance; and
(vii) The number of Indian organizations and Indian-owned economic enterprises contacted, and the number receiving subcontract awards under this contract.
(6) Submit to the Contracting Officer for approval a quarterly report summarizing the Contractor’s Indian preference program and indicating the number and types of available positions filled by Indians and non-Indians, and the dollar amounts of all subcontracts awarded to Indian organizations and Indian-owned economic enterprises, and to all other firms.
(7) Maintain records pursuant to this clause and keep them available for review by the Government for one year after final payment under this contract, or for such longer period in accordance with requirements of any other clause of this contract or by applicable law or regulation.
(b) For purposes of this clause, the following definitions of terms shall apply:
(1) The terms Indian, Indian tribe, Indian organization, and Indian-owned economic enterprise are defined in the clause of this contract entitled Indian Preference.
(2) Indian reservation includes Indian reservations,
(3) On or near an Indian reservation means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably expect to commute to and from in the course of a work day.
(c) Nothing in the requirements of this clause shall preclude Indian tribes from independently developing and enforcing their own Indian preference requirements. Such requirements must not conflict with any Federal statutory or regulatory requirement dealing with the award and administration of contracts.
(d) The Contractor agrees to include the provisions of this clause, including this paragraph (d), in each subcontract awarded at any tier under this contract and to notify the Contracting Officer of such subcontracts.
(e) In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may pursue any other remedies authorized by law or by other provisions of the contract.
352.226-3 Native American Graves Protection and Repatriation Act.
As prescribed in HHSAR 326.701, the Contracting Officer shall insert the following clause:
(a) Public Law 101-601, dated November 16, 1990, also known as the Native American Graves Protection and Repatriation Act, imposes certain responsibilities on individuals and organizations when they discover Native American cultural items (including human remains) on Federal or tribal lands.
(b) In the event the Contractor discovers Native American cultural items (including human remains, associated funerary objects, unassociated funerary objects, sacred objects and cultural patrimony), as defined in the Act during contract performance, the Contractor shall –
(1) Immediately cease activity in the area of the discovery;
(2) Notify the Contracting Officer of the discovery; and
(3) Make a reasonable effort to protect the items discovered before resuming such activity. Upon receipt of the Contractor’s discovery notice, the Contracting Officer will notify the appropriate authorities as required by the Act.
(c) Unless otherwise specified by the Contracting Officer, the Contractor may resume activity in the area on the 31st calendar day following the date that the appropriate authorities certify receipt of the discovery notice. The Contracting Officer shall provide to the Contractor the date that the appropriate authorities certify receipt of the discovery notice and the date on which the Contractor may resume activities.
352.227-11 Patent Rights – Exceptional Circumstances.
As prescribed in HHSAR 327.303, the Contracting Officer shall insert the following clause:
This clause applies to all Contractor and subcontractor (at all tiers) Subject Inventions.
(a) Definitions. As used in this clause –
Agency means the Agency of the U.S. Department of Health and Human Services that is entering into this contract.
Class 1 Subject Invention means a Subject Invention described and defined in the DEC that will be assigned to a third party assignee, or assigned as directed by the Agency.
Class 2 Subject Invention means a Subject Invention described and defined in the DEC.
Class 3 Subject Invention means a Subject Invention that does not fall into Class 1 or Class 2 as defined in this clause.
DEC means the Determination of Exceptional Circumstances signed by [insert approving official] ____ on __ [insert date] ____ and titled “[insert description].”
Invention means any invention or discovery, which is or may be patentable or otherwise protectable under Title 35 of United States Code, or any novel variety of plant that is or may be protectable under the Plant Variety Protection Act (7 U.S.C. 2321, et seq.)
Made means: When used in relation to any invention other than a plant variety, the conception or first actual reduction to practice of such invention; or when used in relation to a plant variety, that the Contractor has at least tentatively determined that the variety has been reproduced with recognized characteristics.
Material means any proprietary material, method, product, composition, compound, or device, whether patented or unpatented, which is provided to the Contractor under this contract.
Nonprofit organization means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute.
Practical application means to manufacture, in the case of a composition or product; to practice, in the case of a process or method, or to operate, in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or Government regulations, available to the public on reasonable terms.
Small business firm means a small business concern as defined at section 2 of Public Law 85-536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small Business Administration. For the purpose of this clause, the size standards for small business concerns involved in Government procurement and subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, will be used.
Subject Invention means any invention of the Contractor made in the performance of work under this contract.
Third party assignee means any entity or organization that may, as described in the DEC, be assigned Class 1 inventions.
(b) Allocation of principal rights. (1) Retention of pre-existing rights. Third party assignees shall retain all preexisting rights to Material in which the Third party assignee has a proprietary interest.
(2) Allocation of Subject Invention rights. (i) Disposition of Class 1 Subject Inventions. (A) Assignment to the Third party assignee or as directed by the Agency. The Contractor shall assign to the Third party assignee designated by the Agency the entire right, title, and interest throughout the world to each Subject Invention, or otherwise dispose of or transfer those rights as directed by the Agency, except to the extent that rights are retained by the Contractor under paragraph (b)(3) of this clause. Any such assignment or other disposition or transfer of rights will be subject to a nonexclusive, nontransferable, irrevocable, paid-up license to the U.S. Government to practice or have practiced the Subject Invention for or on behalf of the U.S. throughout the world. Any assignment shall additionally be subject to the “March-in rights” of 35 U.S.C. 203. If the Contractor is a U.S. nonprofit organization it may retain a royalty free, nonexclusive, nontransferable license to practice the invention for all nonprofit research including for educational purposes, and to permit other U.S. nonprofit organizations to do so.
(B) [Reserved]
(ii) Disposition of Class 2 and 3 Subject Inventions. Class 2 Subject Inventions shall be governed by FAR clause 52.227-11, Patent Rights-Ownership (December 2007) (incorporated herein by reference). However, the Contractor shall grant a license in the Class 2 Subject Inventions to the provider of the Material or other party designated by the Agency as set forth in Alternate I.
(iii) Class 3 Subject Inventions shall be governed by FAR clause 52.227-11, Patent Rights – Ownership by the Contractor (December 2007) (previously incorporated herein by reference).
(3) Greater Rights Determinations. The Contractor, or an employee-inventor after consultation by the Agency with the Contractor, may request greater rights than are provided in paragraph (b)(1) of this clause in accordance with the procedures of FAR paragraph 27.304-1(c). In addition to the considerations set forth in paragraph 27.304-1(c), the Agency may consider whether granting the requested greater rights will interfere with rights of the Government or any Third party assignee or otherwise impede the ability of the Government or the Third party assignee to, for example, develop and commercialize new compounds, dosage forms, therapies, preventative measures, technologies, or other approaches with potential for the diagnosis, prognosis, prevention, and treatment of human diseases.
A request for a determination of whether the Contractor or the employee-inventor is entitled to retain such greater rights must be submitted to the Agency Contracting Officer at the time of the first disclosure of the invention pursuant to paragraph (c)(1) of this clause, or not later than 8 months thereafter, unless a longer period is authorized in writing by the Contracting Officer for good cause shown in writing by the Contractor. Each determination of greater rights under this contract shall be subject to paragraph (c) of the FAR clause at 52.227-13 (incorporated herein by reference), and to any reservations and conditions deemed to be appropriate by the Agency such as the requirement to assign or exclusively license the rights to Subject Inventions to the Third party assignee.
A determination by the Agency denying a request by the Contractor for greater rights in a Subject Invention may be appealed within 30 days of the date the Contractor is notified of the determination to an Agency official at a level above the individual who made the determination. If greater rights are granted, the Contractor must file a patent application on the invention. Upon request, the Contractor shall provide the filing date, serial number and title, a copy of the patent application (including an English-language version if filed in a language other than English), and patent number and issue date for any Subject Invention in any country for which the Contractor has retained title. Upon request, the Contractor shall furnish the Government an irrevocable power to inspect and make copies of the patent application file.
(c) Invention disclosure by Contractor. The Contractor shall disclose in writing each Subject Invention to the Agency Contracting Officer and to the Director, Division of Extramural Inventions and Technology Resources (DEITR), if directed by the Contracting Officer, as provided in paragraph (j) of this clause within 2 months after the inventor discloses it in writing to Contractor personnel responsible for patent matters. The disclosure to the Agency Contracting Officer shall be in the form of a written report and shall identify the contract under which the invention was Made and all inventors. It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological, or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale (offer for sale), or public use of the invention and whether a manuscript describing the invention has been submitted for publication, and if so, whether it has been accepted for publication at the time of disclosure.
In addition, after disclosure to the Agency, the Contractor will promptly notify the Contracting Officer and DEITR of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Contractor. If the Contractor assigns a Subject Invention to the Third party assignee, then the Contractor and its employee inventors shall assist the Third party assignee in securing patent protection. All costs of securing the patent, including the cost of the Contractor’s assistance, are at the Third party’s expense. Any assistance provided by the Contractor and its employee inventors to the Third party assignee or other costs incurred in securing patent protection shall be solely at the Third party’s expense and not billable to the contract.
(d) Contractor action to protect the Third party assignee’s and the Government’s interest. (1) The Contractor agrees to execute or to have executed and promptly deliver to the Agency all instruments necessary to: Establish or confirm the rights the Government has throughout the world in Subject Inventions pursuant to paragraph (b) of this clause; convey title to a Third party assignee in accordance with paragraph (b) of this clause; and enable the Third party assignee to obtain patent protection throughout the world in that Subject Invention.
(2) The Contractor agrees to require, by written agreement, its employees, other than clerical and nontechnical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Contractor, each Subject Invention “Made” under contract in order that the Contractor can comply with the disclosure provisions of paragraph (c) of this clause, and to execute all papers necessary to file patent applications on Subject Inventions and to establish the Government’s rights or a Third party assignee’s rights in the Subject Inventions. This disclosure format should require, as a minimum, the information required by subparagraph (c)(1) of this clause. The Contractor shall instruct such employees, through employee agreements or other suitable educational programs, on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.
(3) If the Contractor is granted greater rights, the Contractor agrees to include, within the specification of any United States non-provisional patent application it files, and any patent issuing thereon, covering a Subject Invention the following statement: “This invention was made with Government support under (identify the Contract) awarded by (identify the specific Agency). The Government has certain rights in the invention.”
(4) The Contractor agrees to provide a final invention statement and certification prior to the closeout of the contract listing all Subject Inventions or stating that there were none.
(e) Subcontracts. (1) The Contractor will include this clause in all subcontracts, regardless of tier, for experimental, developmental, or research work. At all tiers, the clause must be modified to identify the parties as follows: References to the Government are not changed, and the subcontractor has all rights and obligations of the Contractor in the clause. The Contractor will not, as part of the consideration for awarding the contract, obtain rights in the subcontractor’s Subject Inventions.
(2) In subcontracts, at any tier, the Agency, the subcontractor, and the Contractor agree that the mutual obligations of the parties created by this clause constitute a contract between the subcontractor and the Agency with respect to the matters covered by the clause; provided, however, that nothing in this paragraph is intended to confer any jurisdiction under the Contract Disputes Act in connection with proceedings under paragraph (c)(1)(ii) of FAR clause 52.227-13.
(f) Reporting on utilization of Subject Inventions in the event greater rights are granted to the Contractor. The Contractor agrees to submit, on request, periodic reports no more frequently than annually on the utilization of a Subject Invention or on efforts at obtaining such utilization that are being made by the Contractor or its licensees or assignees when a request under subparagraph b.3. has been granted by the Agency. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Contractor, and such other data and information as the Agency may reasonably specify. The Contractor also agrees to provide additional reports as may be requested by the Agency in connection with any march-in proceeding undertaken by the Agency in accordance with paragraph (h) of this clause. As required by 35 U.S.C. 202(c)(5), the Agency agrees it will not disclose such information to persons outside the Government without permission of the Contractor.
(g) Preference for United States industry in the event greater rights are granted to the Contractor. Notwithstanding any other provision of this clause, the Contractor agrees that neither it nor any assignee will grant to any person the exclusive right to use or sell any Subject Invention in the United States unless such person agrees that any product embodying the Subject Invention or produced through the use of the Subject Invention will be manufactured substantially in the United States. However, in individual cases, the requirement for such an agreement may be waived by the Agency upon a showing by the Contractor or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that under the circumstances domestic manufacture is not commercially feasible.
(h) March-in rights in the event greater rights are granted to the Contractor. The Contractor acknowledges that, with respect to any Subject Invention in which it has acquired ownership through the exercise of the rights specified in paragraph (b)(3) of this clause, the Agency has the right to require licensing pursuant to 35 U.S.C. 203 and 210(c), and in accordance with the procedures in 37 CFR 401.6 and any supplemental regulations of Agency in effect on the date of contract award.
(i) Special provisions for contracts with nonprofit organizations in the event greater rights are granted to the Contractor. If the Contractor is a nonprofit organization, it shall:
(1) Not assign rights to a Subject Invention in the United States without the written approval of the Agency, except where an assignment is made to an organization that has as one of its primary functions the management of inventions, provided that the assignee shall be subject to the same provisions as the Contractor;
(2) Share royalties collected on a Subject Invention with the inventor, including Federal employee co-inventors (but through their Agency if the Agency deems it appropriate) when the Subject Invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
(3) Use the balance of any royalties or income earned by the Contractor with respect to Subject Inventions, after payment of expenses (including payments to inventors) incidental to the administration of Subject Inventions for the support of scientific research or education;
(4) Make efforts that are reasonable under the circumstances to attract licensees of Subject Inventions that are small business concerns, and give a preference to a small business concern when licensing a Subject Invention if the Contractor determines that the small business concern has a plan or proposal for marketing the invention which, if executed, is equally as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business concerns; provided, that the Contractor is also satisfied that the small business concern has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the Contractor; and
(5) Allow the Secretary of Commerce to review the Contractor’s licensing program and decisions regarding small business applicants, and negotiate changes to its licensing policies, procedures, or practices with the Secretary of Commerce when the Secretary’s review discloses that the Contractor could take reasonable steps to more effectively implement the requirements of paragraph (i)(4) of this clause.
(j) Communications. All invention disclosures and requests for greater rights shall be sent to the Agency Contracting Officer, as directed by the Contracting Officer. Additionally, a copy of all disclosures, confirmatory licenses to the Government, face page of the patent applications, waivers and other routine communications under this funding agreement at all tiers must be sent to:
[Insert Agency Address]
Agency Invention Reporting Web site: https://public.era.nih.gov/iedison.
Alternate I (Sept 2014). As prescribed in 327.303, the license to Class 2 inventions recited in 352.227-11(b)(2)(a) is as follows:
[Insert description of license to Class 2 inventions]
352.227-14 Rights in Data – Exceptional Circumstances.
As prescribed in HHSAR 327.409, insert the following clause with any appropriate alternates:
(a) Definitions. As used in this clause – Definitions may be added or modified in paragraph (a) as applicable.
Computer database or database means a collection of recorded information in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software.
Computer software – (i) Means (A) Computer programs that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations; and
(B) Recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, or compiled.
(ii) Does not include computer databases or computer software documentation.
Computer software documentation means owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.
Data means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.
Form, fit, and function data means data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For computer software it means data identifying source, functional characteristics, and performance requirements but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.
Limited rights means the rights of the Government in limited rights data as set forth in the Limited Rights Notice in Alternate II paragraph (g)(3) if included in this clause. “Limited rights data” means data, other than computer software, that embody trade secrets or are commercial or financial and confidential or privileged, to the extent that such data pertain to items, components, or processes developed at private expense, including minor modifications.
Restricted computer software means computer software developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is copyrighted computer software, including minor modifications of the computer software.
Restricted rights, as used in this clause, means the rights of the Government in restricted computer software, as set forth in a Restricted Rights Notice of Alternate III paragraph (g)(4) if included in this clause, or as otherwise may be provided in a collateral agreement incorporated in and made part of this contract, including minor modifications of such computer software.
Technical data means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation). This term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. The term includes recorded information of a scientific or technical nature that is included in computer databases (See 41 U.S.C. 403(8)).
Unlimited rights means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.
(b) Allocation of rights. (1) Except as provided in paragraph (c) of this clause, the Government shall have unlimited rights in –
(i) Data first produced in the performance of this contract;
(ii) Form, fit, and function data delivered under this contract;
(iii) Data delivered under this contract (except for restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under this contract; and
(iv) All other data delivered under this contract unless provided otherwise for limited rights data or restricted computer software in accordance with paragraph (g) of this clause.
(2) The Contractor shall have the right to –
(i) Assert copyright in data first produced in the performance of this contract to the extent provided in paragraph (c)(1) of this clause;
(ii) Use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this contract, unless provided otherwise in paragraph (d) of this clause;
(iii) Substantiate the use of, add, or correct limited rights, restricted rights, or copyright notices and to take other appropriate action, in accordance with paragraphs (e) and (f) of this clause; and
(iv) Protect from unauthorized disclosure and use those data that are limited rights data or restricted computer software to the extent provided in paragraph (g) of this clause.
(c) Copyright – (1) Data first produced in the performance of this contract. (i) Unless provided otherwise in paragraph (d) of this clause, the Contractor may, without prior approval of the Contracting Officer, assert copyright in scientific and technical articles based on or containing data first produced in the performance of this contract and published in academic, technical or professional journals, symposia proceedings, or similar works. The prior, express written permission of the Contracting Officer is required to assert copyright in all other data first produced in the performance of this contract.
(ii) When authorized to assert copyright to the data, the Contractor shall affix the applicable copyright notices of 17 U.S.C. 401 or 402, and an acknowledgment of Government sponsorship (including contract number).
(iii) For data other than computer software, the Contractor grants to the Government and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly by or on behalf of the Government. For computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted computer software to reproduce, prepare derivative works, and perform publicly and display publicly (but not to distribute copies to the public) by or on behalf of the Government.
(2) Data not first produced in the performance of this contract. The Contractor shall not, without the prior written permission of the Contracting Officer, incorporate in data delivered under this contract any data not first produced in the performance of this contract unless the Contractor –
(i) Identifies the data; and
(ii) Grants to the Government, or acquires on its behalf, a license of the same scope as set forth in paragraph (c)(1) of this clause or, if such data are restricted computer software, the Government shall acquire a copyright license as set forth in paragraph (g)(4) of this clause (if included in this contract) or as otherwise provided in a collateral agreement incorporated in or made part of this contract.
(3) Removal of copyright notices. The Government will not remove any authorized copyright notices placed on data pursuant to this paragraph (c), and will include such notices on all reproductions of the data.
(d) Release, publication, and use of data. The Contractor shall have the right to use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Contractor in the performance of this contract, except –
(1) As prohibited by Federal law or regulation (e.g., export control or national security laws or regulations);
(2) As expressly set forth in this contract; or
(3) If the Contractor receives or is given access to data necessary for the performance of this contract that contain restrictive markings, the Contractor shall treat the data in accordance with such markings unless specifically authorized otherwise in writing by the Contracting Officer or in the following paragraphs.
(4) In addition to any other provisions, set forth in this contract, the Contractor shall ensure that information concerning possible inventions made under this contract is not prematurely published thereby adversely affecting the ability to obtain patent protection on such inventions. Accordingly, the Contractor will provide the Contracting Officer a copy of any publication or other public disclosure relating to the work performed under this contract at least 30 days in advance of the disclosure. Upon the Contracting Officer’s request the Contractor agrees to delay the public disclosure of such data or publication of a specified paper for a reasonable time specified by the Contracting Officer, not to exceed 6 months, to allow for the filing of domestic and international patent applications in accordance with Clause 352.227-11, Patent Rights – Exceptional Circumstances (abbreviated month and year of Final Rule publication).
(5) Data on Material(s). The Contractor agrees that in accordance with paragraph (d)(2), proprietary data on Material(s) provided to the Contractor under or through this contract shall be used only for the purpose for which they were provided, including screening, evaluation or optimization and for no other purpose.
(6) Confidentiality. (i) The Contractor shall take all reasonable precautions to maintain Confidential Information as confidential, but no less than the steps Contractor takes to secure its own confidential information.
(ii) Contractor shall maintain Confidential Information as confidential unless specifically authorized otherwise in writing by the Contracting Officer. Confidential Information includes/does not include [Government may define confidential information here.]
(e) Unauthorized marking of data. (1) Notwithstanding any other provisions of this contract concerning inspection or acceptance, if any data delivered under this contract are marked with the notices specified in paragraph (g)(3) or (4) of this clause (if those alternate paragraphs are included in this clause), and use of the notices is not authorized by this clause, or if the data bears any other restrictive or limiting markings not authorized by this contract, the Contracting Officer may cancel or ignore the markings. However, pursuant to 41 U.S.C. 253d, the following procedures shall apply prior to canceling or ignoring the markings.
(i) The Contracting Officer will make written inquiry to the Contractor affording the Contractor 60 days from receipt of the inquiry to provide written justification to substantiate the propriety of the markings;
(ii) If the Contractor fails to respond or fails to provide written justification to substantiate the propriety of the markings within the 60-day period (or a longer time approved in writing by the Contracting Officer for good cause shown), the Government shall have the right to cancel or ignore the markings at any time after said period and the data will no longer be made subject to any disclosure prohibitions.
(iii) If the Contractor provides written justification to substantiate the propriety of the markings within the period set in paragraph (e)(1)(i) of this clause, the Contracting Officer will consider such written justification and determine whether or not the markings are to be cancelled or ignored. If the Contracting Officer determines that the markings are authorized, the Contractor will be so notified in writing. If the Contracting Officer determines, with concurrence of the Head of the Contracting Activity, that the markings are not authorized, the Contracting Officer will furnish the Contractor a written determination, which determination will become the final Agency decision regarding the appropriateness of the markings unless the Contractor files suit in a court of competent jurisdiction within 90 days of receipt of the Contracting Officer’s decision. The Government will continue to abide by the markings under this paragraph (e)(1)(iii) until final resolution of the matter either by the Contracting Officer’s determination becoming final (in which instance the Government will thereafter have the right to cancel or ignore the markings at any time and the data will no longer be made subject to any disclosure prohibitions), or by final disposition of the matter by court decision if suit is filed.
(2) The time limits in the procedures set forth in paragraph (e)(1) of this clause may be modified in accordance with Agency regulations implementing the Freedom of Information Act (5 U.S.C. 552) if necessary to respond to a request there under.
(3) Except to the extent the Government’s action occurs as the result of final disposition of the matter by a court of competent jurisdiction, the Contractor is not precluded by this paragraph (e) from bringing a claim, in accordance with the Disputes clause of this contract, that may arise as the result of the Government removing or ignoring authorized markings on data delivered under this contract.
(f) Omitted or incorrect markings. (1) Data delivered to the Government without any restrictive markings shall be deemed to have been furnished with unlimited rights. The Government is not liable for the disclosure, use, or reproduction of such data.
(2) If the unmarked data has not been disclosed without restriction outside the Government, the Contractor may request, within 6 months (or a longer time approved by the Contracting Officer in writing for good cause shown) after delivery of the data, permission to have authorized notices placed on the data at the Contractor’s expense. The Contracting Officer may agree to do so if the Contractor –
(i) Identifies the data to which the omitted notice is to be applied;
(ii) Demonstrates that the omission of the notice was inadvertent;
(iii) Establishes that the proposed notice is authorized; and
(iv) Acknowledges that the Government has no liability for the disclosure, use, or reproduction of any data made prior to the addition of the notice or resulting from the omission of the notice.
(3) If data has been marked with an incorrect notice, the Contracting Officer may –
(i) Permit correction of the notice at the Contractor’s expense if the Contractor identifies the data and demonstrates that the correct notice is authorized; or
(ii) Correct any incorrect notices.
(g) Protection of limited rights data and restricted computer software. (1) The Contractor may withhold from delivery qualifying limited rights data or restricted computer software that are not data identified in paragraphs (b)(1)(i) through (iii) of this clause. As a condition to this withholding, the Contractor shall –
(i) Identify the data being withheld; and
(ii) Furnish form, fit, and function data instead.
(2) Limited rights data that are formatted as a computer database for delivery to the Government shall be treated as limited rights data and not restricted computer software.
(3) [Reserved]
(h) Subcontracting. The Contractor shall obtain from its subcontractors all data and rights therein necessary to fulfill the Contractor’s obligations to the Government under this contract. If a subcontractor refuses to accept terms affording the Government those rights, the Contractor shall promptly notify the Contracting Officer of the refusal and shall not proceed with the subcontract award without authorization in writing from the Contracting Officer.
(i) Relationship to patents or other rights. Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government.
Alternate I (Sept 2014). As prescribed in HHSAR 327.409, substitute the following definition for “limited rights data” in paragraph (a) of the basic clause:
Limited rights data means data, other than computer software, developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.
Alternate II (Sept 2014). As prescribed in HHSAR 327.409, insert the following paragraph (g)(3) in the basic clause:
(g)(3) Notwithstanding paragraph (g)(1) of this clause, the contract may identify and specify the delivery of limited rights data, or the Contracting Officer may require by written request the delivery of limited rights data that has been withheld or would otherwise be entitled to be withheld. If delivery of that data is required, the Contractor shall affix the following “Limited Rights Notice” to the data and the Government will treat the data, subject to the provisions of paragraphs (e) and (f) of this clause, in accordance with the notice:
(a) These data are submitted with limited rights under Government Contract No. __ (and subcontract __, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to prohibition against further use and disclosure: Agencies may list additional purposes or if none, so state.
(b) This notice shall be marked on any reproduction of these data, in whole or in part.
Alternate III (SEPT 2014). As prescribed in HHSAR 327.409, insert the following paragraph (g)(4) in the basic clause: (g)(4)(i) Notwithstanding paragraph (g)(1) of this clause, the contract may identify and specify the delivery of restricted computer software, or the Contracting Officer may require by written request the delivery of restricted computer software that has been withheld or would otherwise be entitled to be withheld. If delivery of that computer software is required, the Contractor shall affix the following “Restricted Rights Notice” to the computer software and the Government will treat the computer software, subject to paragraphs (e) and (f) of this clause, in accordance with the notice:
(a) This computer software is submitted with restricted rights under Government Contract No. __ (and subcontract __, if appropriate). It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice or as otherwise expressly stated in the contract.
(b) This computer software may be –
(1) Used or copied for use with the computer(s) for which it was acquired, including use at any Government installation to which the computer(s) may be transferred;
(2) Used or copied for use with a backup computer if any computer for which it was acquired is inoperative;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software, provided that the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, restricted computer software shall be subject to the same restricted rights;
(5) Disclosed to and reproduced for use by support service Contractors or their subcontractors in accordance with paragraphs (b)(1) through (4) of this notice; and
(6) Used or copied for use with a replacement computer.
(c) Notwithstanding the foregoing, if this computer software is copyrighted computer software, it is licensed to the Government with the minimum rights set forth in paragraph (b) of this notice.
(d) Any other rights or limitations regarding the use, duplication, or disclosure of this computer software are to be expressly stated in, or incorporated in, the contract.
(e) This notice shall be marked on any reproduction of this computer software, in whole or in part.
(ii) Where it is impractical to include the Restricted Rights Notice on restricted computer software, the following short-form notice may be used instead:
Use, reproduction, or disclosure is subject to restrictions set forth in Contract No. __ (and subcontract, if appropriate) with __ (name of Contractor and subcontractor).
(iii) If restricted computer software is delivered with the copyright notice of 17 U.S.C. 401, it will be presumed to be licensed to the Government without disclosure prohibitions, with the minimum rights set forth in paragraph (b) of this clause.
Alternate IV Sept 2014). As prescribed in HHSAR 327.409, substitute the following paragraph (c)(1) for paragraph (c)(1) of the basic clause:
(c) Copyright – (1) Data first produced in the performance of the contract. Except as otherwise specifically provided in this contract, the Contractor may assert copyright in any data first produced in the performance of this contract. When asserting copyright, the Contractor shall affix the applicable copyright notice of 17 U.S.C. 401 or 402, and an acknowledgment of Government sponsorship (including contract number), to the data when such data are delivered to the Government, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. For data other than computer software, the Contractor grants to the Government, and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license for all such data to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. For computer software, the Contractor grants to the Government and others acting on its behalf, a paid-up, nonexclusive, irrevocable, worldwide license for all such computer software to reproduce, prepare derivative works, and perform publicly and display publicly (but not to distribute copies to the public), by or on behalf of the Government.
Alternate V (Sept 2014). As prescribed in HHSAR 327.409, add the following paragraph (j) to the basic clause:
(j) The Contractor agrees, except as may be otherwise specified in this contract for specific data deliverables listed as not subject to this paragraph, that the Contracting Officer may, up to 3 years after acceptance of all deliverables under this contract, inspect at the Contractor’s facility any data withheld pursuant to paragraph (g)(1) of this clause, for purposes of verifying the Contractor’s assertion of limited rights or restricted rights status of the data or for evaluating work performance. When the Contractor whose data are to be inspected demonstrates to the Contracting Officer that there would be a possible conflict of interest if a particular representative made the inspection, the Contracting Officer shall designate an alternate inspector.
352.227-70 Publications and Publicity.
As prescribed in HHSAR 327.404-70, the Contracting Officer shall insert the following clause:
(a) Unless otherwise specified in this contract, the Contractor may publish the results of its work under this contract. The Contractor shall promptly send a copy of each article submitted for publication to the Contracting Officer’s Representative. The Contractor shall also inform the Contracting Officer’s Representative when the article or other publication is published, and furnish a copy of it as finally published.
(b) Unless authorized in writing by the Contracting Officer, the Contractor shall not display the HHS logo including Operating Division or Staff Division logos on any publications.
(c) The Contractor shall not reference the product(s) or service(s) awarded under this contract in commercial advertising, as defined in FAR 31.205-1, in any manner which states or implies HHS approval or endorsement of the product(s) or service(s) provided.
(d) The contractor shall include this clause, including this section (d) in all subcontracts where the subcontractor may propose publishing the results of its work under the subcontract.
352.231-70 Salary Rate Limitation.
As prescribed in HHSAR 331.101-70(b), the Contracting Officer shall insert the following clause:
(a) The Contractor shall not use contract funds to pay the direct salary of an individual at a rate in excess of the Federal Executive Schedule Level II in effect on the date the funding was obligated.
(b) For purposes of the salary rate limitation, the terms “direct salary,” “salary,” and “institutional base salary,” have the same meaning and are collectively referred to as “direct salary,” in this clause. An individual’s direct salary is the annual compensation that the Contractor pays for an individual’s direct effort (costs) under the contract. Direct salary excludes any income that an individual may be permitted to earn outside of duties to the Contractor. Direct salary also excludes fringe benefits, overhead, and general and administrative expenses (also referred to as indirect costs or facilities and administrative costs). The salary rate limitation does not restrict the salary that an organization may pay an individual working under a Department of Health and Human Services contract or order; it merely limits the portion of that salary that may be paid with contract funds.
(c) The salary rate limitation also applies to individuals under subcontracts.
(d) If this is a multiple-year contract or order, it may be subject to unilateral modification by the Contracting Officer to ensure that an individual is not paid at a rate that exceeds the salary rate limitation provision established in the HHS appropriations act used to fund this contract.
(e) See the salaries and wages pay tables on the Office of Personnel Management Web site for Federal Executive Schedule salary levels.
352.232-70 Incremental Funding.
As prescribed in HHSAR 332.706-2(b), the Contracting Officer shall insert the provision provided below in all solicitations when a cost-reimbursement contract for severable services using incremental funding is contemplated.
The Government intends to negotiate and award a cost-reimbursement contract using incremental funding as described in the clause at FAR 52.232-22, “Limitation of Funds”. The initial obligation of funds under the contract is expected to cover [insert the appropriate increment of performance]. The Government intends to obligate additional funds up to and including the full estimated cost of the contract for the remaining periods of performance by unilateral contract modification. However, the Government is not required to reimburse the Contractor for costs incurred in excess of the total amount obligated, nor is the Contractor required to perform beyond the level supported by the total amount obligated.
352.233-70 Choice of Law (Overseas).
As prescribed in HHSAR 333.215-70(a), the Contracting Officer shall insert the following clause:
This contract shall be construed in accordance with the substantive laws of the United States of America. By the execution of this contract, the Contractor expressly agrees to waive any rights to invoke the jurisdiction of local national courts where this contract is performed and agrees to accept the exclusive jurisdiction of the United States Civilian Board of Contract Appeals or the United States Court of Federal Claims for hearing and determination of any and all disputes that may arise under the Disputes clause of this contract.
352.233-71 Litigation and Claims.
As prescribed in HHSAR 333.215-70(b), the Contracting Officer shall insert the following clause:
(a) The Contractor shall provide written notification immediately to the Contracting Officer of any action, including any proceeding before an administrative agency, filed against the Contractor arising out of the performance of this contract, including, but not limited to the performance of any subcontract hereunder; and any claim against the Contractor the cost and expense of which is allowable under the clause entitled “Allowable Cost and Payment.”
(b) Except as otherwise directed by the Contracting Officer, the Contractor shall furnish immediately to the Contracting Officer copies of all pertinent documents received by the Contractor with respect to such action or claim. To the extent not in conflict with any applicable policy of insurance, the Contractor may, with the Contracting Officer’s approval, settle any such action or claim. If required by the Contracting Officer, the Contractor shall effect an assignment and subrogation in favor of the Government of all the Contractor’s rights and claims (except those against the Government) arising out of any such action or claim against the Contractor; and authorize representatives of the Government to settle or defend any such action or claim and to represent the Contractor in, or to take charge of, any action.
(c) If the Government undertakes a settlement or defense of an action or claim, the Contractor shall furnish all reasonable assistance in effecting a settlement or asserting a defense. Where an action against the Contractor is not covered by a policy of insurance, the Contractor shall, with the approval of the Contracting Officer, proceed with the defense of the action in good faith. The Government shall not be liable for the expense of defending any action or for any costs resulting from the loss thereof to the extent that the Contractor would have been compensated by insurance which was required by other terms or conditions of this contract, by law or regulation, or by written direction of the Contracting Officer, but which the Contractor failed to secure through its own fault or negligence. In any event, unless otherwise expressly provided in this contract, the Government shall not reimburse or indemnify the Contractor for any liability loss, cost, or expense, which the Contractor may incur or be subject to by reason of any loss, injury or damage, to the person or to real or personal property of any third parties as may accrue during, or arise from, the performance of this contract.
352.236-70 Design-Build Contracts.
As prescribed in HHSAR 336.570(a), the Contracting Officer shall insert the following clause:
(a) General. (1) The contract constitutes and defines the entire agreement between the Contractor and the Government. This contract includes the standard or special contract clauses and schedules included at the time of award. This contract incorporates by reference:
(i) The solicitation in its entirety (with the exception of instructions to offerors and evaluation criteria which do not become part of the award document);
(ii) The specifications and statement of work;
(iii) All drawings, cuts and illustrations, included in the solicitation and any amendments during all proposal phases leading up to award;
(iv) Exhibits and other attachments; and
(v) The successful Offeror’s accepted proposal.
(2) In the event of conflict or inconsistency between any of the requirements of the various portions of this contract, precedence shall be given in the following order:
(i) Betterments: Any portions of the Offeror’s proposal which exceed the requirements of the solicitation and which go beyond repair and improve the value of the property.
(ii) The contract clauses and schedules included during the solicitation or at the time of award.
(iii) All requirements (other than betterments) of the accepted proposal.
(iv) Any design products, including but not limited to plans, specifications, engineering studies and analyses, shop drawings, equipment installation drawings, etc. These are “deliverables” under the contract and are not part of the contract itself.
(3) Design products must conform to all requirements of the contract, in the order of precedence stated here.
(b) Responsibility of the contractor for design. (1) The Contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other non-construction services furnished by the Contractor under this contract. The Contractor shall, without additional compensation, correct or revise any errors or deficiency in its designs, drawings, specifications, and other non-construction services and perform any necessary rework or modifications, including any damage to real or personal property, resulting from the design error or omission.
(2) Neither the Government’s review, approval or acceptance of, nor payment for, the services required under this contract shall be construed to operate as a waiver of any rights under this contract or of any cause of action arising out of the performance of this contract. The Contractor shall be and remain liable to the Government in accordance with applicable law for all damages to the Government caused by the Contractor’s negligent performance of any of these services furnished under this contract.
(3) The rights and remedies of the Government provided for under this contract are in addition to any other rights and remedies provided by law.
(4) If the Contractor is comprised of more than one legal entity each such entity shall be jointly and severally liable with respect to all rights and remedies of the Government.
(c) Sequence of design – construction. (1) After receipt of the Contract Award, the Contractor shall initiate design, comply with all design submission requirements, and obtain Government review of each submission. No construction may be started until the Government reviews the Final Design submission and determines it satisfactory for purposes of beginning construction. The Contracting Officer will notify the Contractor when the design is cleared for construction. The Government will not grant any time extension for any design resubmittal required when, in the opinion of the Contracting Officer, the initial submission failed to meet the minimum quality requirements as set forth in the Contract.
(2) If the Government allows the Contractor to proceed with limited construction based on pending minor revisions to the reviewed Final Design submission, no payment will be made for any completed or in-progress construction related to the pending revisions until they are completed, resubmitted, and are satisfactory to the Government.
(3) No payment will be made for any completed or in-progress construction until all required submittals have been made, reviewed, and are satisfactory to the Government.
(d) Constructor’s role during design. The Contractor’s construction management key personnel shall be actively involved during the design process to effectively integrate the design and construction requirements of this contract. In addition to the typical required construction activities, the constructor’s involvement includes, but is not limited to actions such as: integrating the design schedule into the Master Schedule to maximize the effectiveness of fast-tracking design and construction (within the limits, if any, allowed in the contract), ensuring constructability and economy of the design, integrating the shop drawing and installation drawing process into the design, executing the material and equipment acquisition programs to meet critical schedules, effectively interfacing the construction Quality Control (QC) program with the design QC program, and maintaining and providing the design team with accurate, up-to-date redline and as-built documentation. The Contractor shall require and manage the active involvement of key trade subcontractors in the above activities.
(e) Preconstruction conference. (1) A preconstruction conference will be arranged by the Contracting Officer after award of contract and before commencement of work. The Contracting Officer or designated representative will notify the Contractor of the time, date, and location for the meeting. At this conference, the Contractor shall be oriented with respect to Government procedures and line of authority, contractual, administrative, and construction matters.
(2) The Contractor shall bring to this conference, in completed form, a Certificate of Insurance, plus the following items in either completed or draft form:
(i) Accident Prevention Plan;
(ii) Quality Control Plan;
(iii) Letter Appointing Superintendent;
(iv) Transmittal Register;
(v) Power of Attorney and Certified Copy of Resolution;
(vi) Network Analysis System, (when identified in the contract schedule as applicable);
(vii) List of Subcontractors;
(viii) SF 1413;
(ix) Performance and Payment Bonds; and
(x) Schedule of Values.
(3) A letter of record will be written documenting all items discussed at the conference, and a copy will be furnished by the Contracting Officer to all in attendance.
(f) Payment for design under fixed-price design-build contracts. (1) The Contracting Officer may approve progress payments for work performed during the project design phase up to the maximum amount of __ (Contracting Officer to insert percent figure. If none stated, the amount is four (4) percent) percent of the contract price.
(2) Contractor invoices for payment must be accompanied by satisfactory documentation supporting the amounts for which payments are requested. Progress payments approved by the Contracting Officer during the project design phase in no way constitute an acceptance of functional and aesthetic design elements nor acceptance of a final settlement amount in the event of a buy-out nor a waiver of any contractual requirements.
(g) Unscheduled jobsite shutdowns. Due to security reasons during the life of this contract the Government may on an unscheduled basis require the contractor to shut down its jobsite for 2 days per year at no additional cost. This shall not constitute a suspension of work under FAR 52.242-14, Suspension of Work
Alternate I (DEC 2015).
When Fast Track procedures are being used, replace paragraph (c) of the basic clause with the following:
(c) Sequence of design build. (1) After receipt of the Contract Award the Contractor shall initiate design, comply with all design submissions requirements and obtain Government review of each submission. The contractor may begin construction on portions of the work for which the Government has reviewed the final design submission and has determined satisfactory for purposes of beginning construction. The Contracting Officer will notify the Contractor when the design is cleared for construction. The Government will not grant any time extension for any design resubmittal required when, in the opinion of the Contracting Officer, the initial submission failed to meet the minimum quality requirements as set forth in the Contract.
(2) If the Government allows the Contractor to proceed with the construction based on pending minor revisions to the reviewed Final Design submission, no payment will be made for any in-place construction related to the pending revisions until they are completed, resubmitted, and are satisfactory to the Government.
(3) No payment will be made for any in-place construction until all required submittals have been made, reviewed, and are satisfactory to the Government.
352.237-70 Pro-Children Act.
As prescribed in HHSAR 337.103(d)(1), the Contracting Officer shall insert the following clause:
(a) Public Law 103-227, Title X, Part C, also known as the Pro-Children Act of 1994 (Act), 20 U.S.C. 7183, imposes restrictions on smoking in facilities where certain federally funded children’s services are provided. The Act prohibits smoking within any indoor facility (or portion thereof), whether owned, leased, or contracted for, that is used for the routine or regular provision of: (i) Kindergarten, elementary, or secondary education or library services or (ii) health or day care services that are provided to children under the age of 18. The statutory prohibition also applies to indoor facilities that are constructed, operated, or maintained with Federal funds.
(b) By acceptance of this contract or order, the Contractor agrees to comply with the requirements of the Act. The Act also applies to all subcontracts awarded under this contract for the specified children’s services. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. Failure to comply with the Act may result in the imposition of a civil monetary penalty in an amount not to exceed $1,000 for each violation and/or the imposition of an administrative compliance order on the responsible entity. Each day a violation continues constitutes a separate violation.
352.237-71 Crime Control Act – Reporting of Child Abuse.
As prescribed in HHSAR 337.103(d)(2), the Contracting Officer shall insert the following clause:
(a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity, as defined in the Act, on Federal land or in a federally-operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse.
(b) The Act designates “covered professionals” as those persons engaged in professions and activities in eight different categories including, but not limited to, teachers, social workers, physicians, dentists, medical residents or interns, hospital personnel and administrators, nurses, health care practitioners, chiropractors, osteopaths, pharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers, alcohol or drug treatment personnel, psychologists, psychiatrists, mental health professionals, child care workers and administrators, and commercial film and photo processors. The Act defines the term “child abuse” as the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.
(c) Accordingly, any person engaged in a covered profession or activity under an HHS contract or subcontract, regardless of the purpose of the contract or subcontract, shall immediately report a suspected child abuse incident in accordance with the provisions of the Act. If a child is suspected of being harmed, the appropriate State Child Abuse Hotline, local child protective services (CPS), or law enforcement agency shall be contacted. For more information about where and how to file a report, the Childhelp USA, National Child Abuse Hotline (1-800-4-A-CHILD) shall be called. Any covered professional failing to make a timely report of such incident shall be guilty of a Class B misdemeanor.
(d) By acceptance of this contract or order, the Contractor agrees to comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under this contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act.
352.237-72 Crime Control Act – Requirement for Background Checks.
As prescribed in HHSAR 337.103(d)(3), the Contracting Officer shall insert the following clause:
(a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), requires that all individuals involved with the provision of child care services to children under the age of 18 undergo a criminal background check. “Child care services” include, but are not limited to, social services, health and mental health care, child (day) care, education (whether or not directly involved in teaching), and rehabilitative programs. Any conviction for a sex crime, an offense involving a child victim, or a drug felony, may be grounds for denying employment or for dismissal of an employee providing any of the services listed above.
(b) The Contracting Officer will provide the necessary information to the Contractor regarding the process for obtaining the background check. The Contractor may hire a staff person provisionally prior to the completion of a background check, if at all times prior to the receipt of the background check during which children are in the care of the newly-hired person, the person is within the sight and under the supervision of a previously investigated staff person.
(c) By acceptance of this contract or order, the Contractor agrees to comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under this contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act.
352.237-73 Indian Child Protection and Family Violence Act.
As prescribed in HHSAR 337.103(d)(4) the Contracting Officer shall insert the following clause:
(a) This contract is subject to the Indian Child Protection and Family Violence Act, Public Law 101-630 (25 U.S.C. 3201 et seq.) The duties and responsibilities required by this contract may involve regular contact with or control over Indian children. Public Law 101-630 prohibits employment, including Personal Service Contracts, with anyone who has been convicted of any crime of violence. Any such conviction should immediately be brought to the attention of the Contracting Officer. The contractor will be subject to a character investigation, conducted by the Indian Health Service, Office of Human Resources. Until such time as the contractor has been notified of completion of the investigation, the contractor shall have no unsupervised contact with Indian children. In order to initiate this background investigation, the contractor must provide information as required in this contract or as directed by the Contracting Officer.
(b) As a prerequisite to providing services under this contract, the Contractor is required to complete and sign the declaration found in Section J of this contract.
352.237-74 Non-Discrimination in Service Delivery.
As prescribed in HHSAR 337.103(e), the Contracting Officer shall insert the following clause in solicitations and contracts:
It is the policy of the Department of Health and Human Services that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). By acceptance of this contract, the contractor agrees to comply with this policy in supporting the program and in performing the services called for under this contract. The contractor shall include this clause in all sub-contracts awarded under this contract for supporting or performing the specified program and services. Accordingly, the contractor shall ensure that each of its employees, and any sub-contractor staff, is made aware of, understands, and complies with this policy.
352.237-75 Key Personnel.
As prescribed in HHSAR 337.103(f), the Contracting Officer shall insert the following clause:
The key personnel specified in this contract are considered to be essential to work performance. At least 30 days prior to the contractor voluntarily diverting any of the specified individuals to other programs or contracts the Contractor shall notify the Contracting Officer and shall submit a justification for the diversion or replacement and a request to replace the individual. The request must identify the proposed replacement and provide an explanation of how the replacement’s skills, experience, and credentials meet or exceed the requirements of the contract (including, when applicable, Human Subjects Testing requirements). If the employee of the contractor is terminated for cause or separates from the contractor voluntarily with less than thirty days notice, the Contractor shall provide the maximum notice practicable under the circumstances. The Contractor shall not divert, replace, or announce any such change to key personnel without the written consent of the Contracting Officer. The contract will be modified to add or delete key personnel as necessary to reflect the agreement of the parties.
352.239-73 Electronic Information and Technology Accessibility Notice.
(a) As prescribed in HHSAR 339.203-70(a), the Contracting Officer shall insert the following provision:
(a) Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), as amended by the Workforce Investment Act of 1998 and the Architectural and Transportation Barriers Compliance Board Electronic and Information (EIT) Accessibility Standards (36 CFR part 1194), require that when Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal employees who are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 508 also requires that individuals with disabilities, who are members of the public seeking information or services from a Federal agency, have access to and use of information and data that is comparable to that provided to the public who are not individuals with disabilities, unless an undue burden would be imposed on the agency.
(b) Accordingly, any offeror responding to this solicitation must comply with established HHS EIT accessibility standards. Information about Section 508 is available at http://www.hhs.gov/web/508. The complete text of the Section 508 Final Provisions can be accessed at http://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards.
(c) The Section 508 accessibility standards applicable to this solicitation are stated in the clause at 352.239-74, Electronic and Information Technology Accessibility.
In order to facilitate the Government’s determination whether proposed EIT supplies meet applicable Section 508 accessibility standards, offerors must submit an HHS Section 508 Product Assessment Template, in accordance with its completion instructions. The purpose of the template is to assist HHS acquisition and program officials in determining whether proposed EIT supplies conform to applicable Section 508 accessibility standards. The template allows offerors or developers to self-evaluate their supplies and document – in detail – whether they conform to a specific Section 508 accessibility standard, and any underway remediation efforts addressing conformance issues. Instructions for preparing the HHS Section 508 Evaluation Template are available under Section 508 policy on the HHS Web site http://www.hhs.gov/web/508.
In order to facilitate the Government’s determination whether proposed EIT services meet applicable Section 508 accessibility standards, offerors must provide enough information to assist the Government in determining that the EIT services conform to Section 508 accessibility standards, including any underway remediation efforts addressing conformance issues.
(d) Respondents to this solicitation must identify any exception to Section 508 requirements. If a offeror claims its supplies or services meet applicable Section 508 accessibility standards, and it is later determined by the Government, i.e., after award of a contract or order, that supplies or services delivered do not conform to the described accessibility standards, remediation of the supplies or services to the level of conformance specified in the contract will be the responsibility of the Contractor at its expense.
352.239-74 Electronic and Information Technology Accessibility.
As prescribed in HHSAR 339.203-70(b), insert the following clause:
(a) Pursuant to Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), as amended by the Workforce Investment Act of 1998, all electronic and information technology (EIT) supplies and services developed, acquired, or maintained under this contract or order must comply with the “Architectural and Transportation Barriers Compliance Board Electronic and Information Technology (EIT) Accessibility Standards” set forth by the Architectural and Transportation Barriers Compliance Board (also referred to as the “Access Board”) in 36 CFR part 1194. Information about Section 508 is available at http://www.hhs.gov/web/508. The complete text of Section 508 Final Provisions can be accessed at http://www.access-board.gov/guidelines-and-standards/communications-and-it/about-the-section-508-standards.
(b) The Section 508 accessibility standards applicable to this contract or order are identified in the Statement of Work or Specification or Performance Work Statement. The contractor must provide any necessary updates to the submitted HHS Product Assessment Template(s) at the end of each contract or order exceeding the simplified acquisition threshold (see FAR 2.101) when the contract or order duration is one year or less. If it is determined by the Government that EIT supplies and services provided by the Contractor do not conform to the described accessibility standards in the contract, remediation of the supplies or services to the level of conformance specified in the contract will be the responsibility of the Contractor at its own expense.
(c) The Section 508 accessibility standards applicable to this contract are:
(d) In the event of a modification(s) to this contract or order, which adds new EIT supplies or services or revises the type of, or specifications for, supplies or services, the Contracting Officer may require that the contractor submit a completed HHS Section 508 Product Assessment Template and any other additional information necessary to assist the Government in determining that the EIT supplies or services conform to Section 508 accessibility standards. Instructions for documenting accessibility via the HHS Section 508 Product Assessment Template may be found under Section 508 policy on the HHS Web site: (http://www.hhs.gov/web/508). If it is determined by the Government that EIT supplies and services provided by the Contractor do not conform to the described accessibility standards in the contract, remediation of the supplies or services to the level of conformance specified in the contract will be the responsibility of the Contractor at its own expense.
(e) If this is an Indefinite Delivery contract, a Blanket Purchase Agreement or a Basic Ordering Agreement, the task/delivery order requests that include EIT supplies or services will define the specifications and accessibility standards for the order. In those cases, the Contractor may be required to provide a completed HHS Section 508 Product Assessment Template and any other additional information necessary to assist the Government in determining that the EIT supplies or services conform to Section 508 accessibility standards. Instructions for documenting accessibility via the HHS Section 508 Product Assessment Template may be found at http://www.hhs.gov/web/508. If it is determined by the Government that EIT supplies and services provided by the Contractor do not conform to the described accessibility standards in the provided documentation, remediation of the supplies or services to the level of conformance specified in the contract will be the responsibility of the Contractor at its own expense.
352.270-1–352.270-3 [Reserved]
352.270-4a Notice to Offerors, Protection of Human Subjects.
As prescribed in HHSAR 370.303(a), the Contracting Officer shall insert the following provision:
(a) The Department of Health and Human Services (HHS) regulations for the protection of human subjects, 45 CFR part 46, are available on the Office for Human Research Protections (OHRP) Web site at: http://www.hhs.gov/ohrp/index.html.
These regulations provide a systematic means, based on established ethical principles, to safeguard the rights and welfare of human subjects participating in research activities supported or conducted by HHS.
(b) The regulations define a human subject as a living individual about whom an investigator (whether professional or student) conducting research obtains data or identifiable public information through intervention or interaction with the individual, or identifiable private information. In most cases, the regulations extend to the use of human organs, tissue, and body fluids from individually identifiable human subjects as well as to graphic, written, or recorded information derived from individually identifiable human subjects. 45 CFR part 46 does not directly regulate the use of autopsy materials; instead, applicable state and local laws govern their use.
(c) Activities which involve human subjects in one or more of the categories set forth in 45 CFR 46.101(b)(1)-(6) are exempt from complying with 45 CFR part 46. See http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html.
(d) Inappropriate designations of the noninvolvement of human subjects or of exempt categories of research in a project may result in delays in the review of a proposal.
(e) In accordance with 45 CFR part 46, offerors considered for award shall file an acceptable Federal-wide Assurance (FWA) of compliance with OHRP specifying review procedures and assigning responsibilities for the protection of human subjects. The FWA is the only type of assurance that OHRP accepts or approves. The initial and continuing review of a research project by an institutional review board shall ensure that: The risks to subjects are minimized; risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result; selection of subjects is equitable; and informed consent will be obtained and documented by methods that are adequate and appropriate. Depending on the nature of the research, additional requirements may apply; see http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html#46.111 for additional requirements regarding initial and continuing review. HHS regulations for the protection of human subjects (45 CFR part 46), information regarding OHRP registration and assurance requirements/processes, and OHRP contact information is available at the OHRP Web site (at http://www.hhs.gov/ohrp/assurances/index.html).
(f) Offerors may consult with OHRP only for general advice or guidance concerning either regulatory requirements or ethical issues pertaining to research involving human subjects. ONLY the contracting officer may offer information concerning a solicitation.
(g) The offeror shall document in its proposal the approved FWA from OHRP, related to the designated Institutional Review Board (IRB) reviewing and overseeing the research. If the offeror does not have an approved FWA from OHRP, the offeror must obtain an FWA before the deadline for proposal submission. When possible, the offeror shall also certify the IRB’s review and approval of the research. If the offeror cannot obtain this certification by the time of proposal submission they must include an explanation in their proposal. Never conduct research covered by 45 CFR part 46 prior to receiving certification of the research’s review and approval by the IRB.
Alternate I (DEC 2015).
As prescribed in HHSAR 370.303(a), the Contracting Officer shall substitute the following paragraph (g) for paragraph (g) of the basic clause.
(g) The offeror’s proposal shall document that it has an approved or active FWA from OHRP, related to the designated IRB reviewing and overseeing the research. When possible the offeror shall also certify the IRB has reviewed and approved the research. If the offeror cannot make this certification at the time of proposal submission, its proposal must include an explanation. Never conduct research covered by 45 CFR part 46 prior to receiving certification of the research’s review and approval by the IRB.
If the offeror does not have an active FWA from OHRP, the offeror shall take all necessary steps to obtain an FWA prior to the deadline for proposal submission. If the offeror cannot obtain an FWA before the proposal submission date, the proposal shall indicate the steps/actions the offeror will take to obtain OHRP approval within (Contracting Officer must insert a time period in which the FWA must be obtained). Upon obtaining FWA approval, submit the approval notice to the Contracting Officer.
352.270-4b Protection of Human Subjects.
As prescribed in HHSAR 370.304(a), the Contracting Officer shall insert the following clause:
(a) The Contractor agrees that the rights and welfare of human subjects involved in research under this contract shall be protected in accordance with 45 CFR part 46 and with the Contractor’s current Federal-wide Assurance (FWA) on file with the Office for Human Research Protections (OHRP), Department of Health and Human Services. The Contractor further agrees to provide certification at least annually that the Institutional Review Board has reviewed and approved the procedures, which involve human subjects in accordance with 45 CFR part 46 and the Assurance of Compliance.
(b) The Contractor shall bear full responsibility for the performance of all work and services involving the use of human subjects under this contract and shall ensure that work is conducted in a proper manner and as safely as is feasible. The parties hereto agree that the Contractor retains the right to control and direct the performance of all work under this contract. Nothing in this contract shall create an agency or employee relationship between the Government and the Contractor, or any subcontractor, agent or employee of the Contractor, or any other person, organization, institution, or group of any kind whatsoever. The Contractor agrees that it has entered into this contract and will discharge its obligations, duties, and undertakings and the work pursuant thereto, whether requiring professional judgment or otherwise, as an independent Contractor without creating liability on the part of the Government for the acts of the Contractor or its employees.
(c) Contractors involving other agencies or institutions in activities considered to be engaged in research involving human subjects must ensure that such other agencies or institutions obtain their own FWA if they are routinely engaged in research involving human subjects or ensure that such agencies or institutions are covered by the Contractors’ FWA via designation as agents of the institution or via individual investigator agreements (see OHRP Web site at: http://www.hhs.gov/ohrp/policy/guidanceonalternativetofwa.pdf).
(d) If at any time during the performance of this contract the Contractor is not in compliance with any of the requirements and or standards stated in paragraphs (a) and (b) above, the Contracting Officer may immediately suspend, in whole or in part, work and further payments under this contract until the Contractor corrects the noncompliance. The Contracting Officer may communicate the notice of suspension by telephone with confirmation in writing. If the Contractor fails to complete corrective action within the period of time designated in the Contracting Officer’s written notice of suspension, the Contracting Officer may, after consultation with OHRP, terminate this contract in whole or in part.
352.270-5a Notice to Offerors of Requirement for Compliance with the Public Health Service Policy on Humane Care and Use of Laboratory Animals.
As prescribed in HHSAR 370.403(a), the Contracting Officer shall insert the following provision:
The Public Health Service (PHS) Policy on Humane Care and Use of Laboratory Animals (PHS Policy) establishes a number of requirements for research activities involving animals. Before awarding a contract to an offeror, the organization shall file, with the Office of Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), a written Animal Welfare Assurance (Assurance) which commits the organization to comply with the provisions of the PHS Policy, the Animal Welfare Act, and the Guide for the Care and Use of Laboratory Animals (National Academy Press, Washington, DC). In accordance with the PHS Policy, offerors must establish an Institutional Animal Care and Use Committee (IACUC), qualified through the experience and expertise of its members, to oversee the institution’s animal program, facilities, and procedures. Offerors must provide verification of IACUC approval prior to receiving an award involving live vertebrate animals. No award involving the use of animals shall be made unless OLAW approves the Assurance and verification of IACUC approval for the proposed animal activities has been provided to the Contracting Officer. Prior to award, the Contracting Officer will notify Contractor(s) selected for projects involving live vertebrate animals of the Assurance and verification of IACUC approval requirement. The Contracting Officer will request that OLAW negotiate an acceptable Assurance with those Contractor(s) and request verification of IACUC approval. For further information, contact OLAW at NIH, 6705 Rockledge Drive, RKL1, Suite 360, MSC 7982 Bethesda, Maryland 20892-7982 (Email: [email protected]; Phone: 301-496-7163).
352.270-5b Care of Live Vertebrate Animals.
As prescribed in HHSAR 370.404, the Contracting Officer shall insert the following clause:
(a) Before undertaking performance of any contract involving animal-related activities where the species is regulated by the United Sates Department of Agriculture (USDA), the Contractor shall register with the Secretary of Agriculture of the United States in accordance with 7 U.S.C. 2136 and 9 CFR 2.25 through 2.28. The Contractor shall furnish evidence of the registration to the Contracting Officer.
(b) The Contractor shall acquire vertebrate animals used in research from a dealer licensed by the Secretary of Agriculture under 7 U.S.C. 2133 and 9 CFR 2.1-2.11, or from a source that is exempt from licensing under those sections.
(c) The Contractor agrees that the care, use, and intended use of any live vertebrate animals in the performance of this contract shall conform with the Public Health Service (PHS) Policy on Humane Care of Use of Laboratory Animals (PHS Policy), the current Animal Welfare Assurance (Assurance), the Guide for the Care and Use of Laboratory Animals (National Academy Press, Washington, DC) and the pertinent laws and regulations of the United States Department of Agriculture (see 7 U.S.C. 2131 et seq. and 9 CFR subchapter A, Parts 1-4). In case of conflict between standards, the more stringent standard shall govern.
(d) If at any time during performance of this contract, the Contracting Officer determines, in consultation with the Office of Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), that the Contractor is not in compliance with any of the requirements and standards stated in paragraphs (a) through (c) above, the Contracting Officer may immediately suspend, in whole or in part, work and further payments under this contract until the Contractor corrects the noncompliance. Notice of the suspension may be communicated by telephone and confirmed in writing. If the Contractor fails to complete corrective action within the period of time designated in the Contracting Officer’s written notice of suspension, the Contracting Officer may, in consultation with OLAW, NIH, terminate this contract in whole or in part, and the Contractor’s name may be removed from the list of those contractors with Animal Welfare Assurances.
Note: The Contractor may request registration of its facility and a current listing of licensed dealers from the Regional Office of the Animal and Plant Health Inspection Service (APHIS), USDA, for the region in which its research facility is located. The location of the appropriate APHIS Regional Office, as well as information concerning this program may be obtained by contacting the Animal Care Staff, USDA/APHIS, 4700 River Road, Riverdale, Maryland 20737 (Email: [email protected]; Web site: (http://www.aphis.usda.gov/wps/portal/aphis/ourfocus/animalwelfare).
352.270-6 Restriction on Use of Human Subjects.
As prescribed in HHSAR 370-304(b), the Contracting Officer shall insert the following clause:
Pursuant to 45 CFR part 46, Protection of Human Research Subjects, the Contractor shall not expend funds under this award for research involving human subjects or engage in any human subjects research activity prior to the Contracting Officer’s receipt of a certification that the research has been reviewed and approved by the Institutional Review Board (IRB) registered with OHRP. This restriction applies to all collaborating sites, whether domestic or foreign, and subcontractors. The Contractor must ensure compliance by collaborators and subcontractors.
352.270-7–352.270-8 [Reserved]
352.270-9 Non-Discrimination for Conscience.
As prescribed in HHSAR 370.701, the Contracting Officer shall insert the following provision:
(a) Section 301(d) of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, as amended, provides that an organization, including a faith-based organization, that is otherwise eligible to receive assistance under section 104A of the Foreign Assistance Act of 1961, under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, under the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, or under any amendment to the foregoing Acts for HIV/AIDS prevention, treatment, or care –
(1) Shall not be required, as a condition of receiving such assistance, to –
(i) Endorse or utilize a multisectoral or comprehensive approach to combating HIV/AIDS; or
(ii) Endorse, utilize, make a referral to, become integrated with, or otherwise participate in any program or activity to which the organization has a religious or moral objection.
(2) Shall not be discriminated against under the provisions of law in subparagraph (a) for refusing to meet any requirement described in paragraph (a)(1) in this solicitation.
(b) Accordingly, an offeror who believes this solicitation contains work requirements requiring it endorse or utilize a multisectoral or comprehensive approach to combating HIV/AIDS, or endorse, utilize, make referral to, become integrated with, or otherwise participate in a program or activity to which it has a religious or moral objection, shall identify those work requirements it excluded in its technical proposal.
(c) The Government acknowledges that an offeror has specific rights, as cited in paragraph (b), to exclude certain work requirements in this solicitation from its proposal. However, the Government reserves the right to not make an award to an offeror whose proposal does not comply with the salient work requirements of the solicitation. Any exercise of that Government right will be made by the Head of the Contracting Activity.
352.270-10 Notice to Offerors – Protection of Human Subjects, Research Involving Human Subjects Committee (RIHSC) Approval of Research Protocols Required.
As prescribed in HHSAR 370.303(d), the Contracting Officer shall insert the following provision:
(a) All Offerors proposing research expected to involve human subjects shall comply with the regulations set forth in 45 CFR part 46, and with the provisions at HHSAR 352.270-4a.
(b) The Offeror shall have an acceptable Assurance of Compliance on file with the Office for Human Research Protections (OHRP), whenever it submits a proposal to the FDA for research expected to involve human subjects. Direct questions regarding Federal-wide Assurance to OHRP. The Offeror’s proposal shall include a copy of the acceptable Assurance of Compliance.
(c) After the contract has been awarded, the Contractor shall take the following actions:
(1) The Institutional Review Board (IRB) specified in the Offeror’s Assurance of Compliance, hereafter referred to as “the local IRB,” shall review the proposed research protocol. A letter from the local IRB stating that the proposed research protocol has been reviewed and approved, and thus adequately protects the rights and welfare of human subjects involved, or a letter stating that the proposed research is exempt under 45 CFR 46.101(b) shall be submitted to the Contracting Officer.
(2) Upon award, the successful Offeror, hereafter “the Contractor,” shall submit its proposed research protocol to the FDA’s Research Involving Human Subjects Committee (RIHSC). The RIHSC or its designee will review and approve the research protocol to assure it adequately protects the rights and welfare of human subjects involved. The RIHSC or designee will also determine whether the proposed research is exempt under 45 CFR 46.101(b). The Contractor shall submit, to the Contracting Officer of record, a copy of the RIHSC’s or its designee’s letter stating that it reviewed and approved the proposed research protocol.
(d) The Contractor shall not advertise for, recruit, or enroll human subjects, or otherwise commence any research involving human subjects until RIHSC or its designee reviews and approves its research. The Contractor may begin other limited aspects of contract performance prior to receiving RIHSC’s or designee’s approval of the proposed research protocol. Research involving human subjects may commence immediately upon the Contractor’s receipt of RIHSC’s or designee’s approval; however, the Contractor shall submit a copy of RIHSC’s or its designee’s approval to the Contracting Officer within three business days of its receipt.
(e) A Contractor’s failure to obtain RIHSC’s or its designee’s approval of its proposed research may result in termination of its contract. However, failure to obtain RIHSC’s or its designee’s approval during initial review will not automatically result in termination of the contract. Instead, the Contractor may correct any deficiencies identified during the initial RIHSC or designee review and resubmit the proposed research protocol to RIHSC or its designee for a second review. The Contractor is encouraged to solicit the RIHSC’s or its designee’s input during the resubmission process.
(f) The Contractor shall seek RIHSC’s or its designee’s and local IRB review and approval whenever making modifications, amendments or other changes to the research protocol. Such modifications, amendments and changes include, but are not limited to changes in investigators, informed consent forms, and recruitment advertisements. The Contractor may institute changes immediately after receiving both the local IRB and RIHSC or its designee approval (except when necessary to eliminate apparent immediate hazards to the subject); however, the Contractor shall submit a copy of the letter evidencing RIHSC’s or its designee’s approval of the proposed changes to the Contracting Officer within three business days of its receipt.
352.270-11 Protection of Human Subjects – Research Involving Human Subjects Committee (RIHSC) Approval of Research Protocols Required.
As prescribed in HHSAR 370.304(c), the Contracting Officer shall insert the following clause:
(a) The Contractor agrees to protect the rights and welfare of human subjects involved in research under this contract by complying with 45 CFR part 46 and the clause at HHSAR 352.270-4b.
(b) Initial proof of compliance with 45 CFR part 46 shall consist of:
(1) A copy of a current Federal-wide Assurance on file with OHRP. The copy of a current Federal-wide Assurance shall be included with the Contractor’s proposal;
(2) A letter from the Contractor’s local IRB (the Institutional Review Board (IRB) specified in the Offeror’s Assurance of Compliance) stating that it has reviewed and approved the proposed research protocol. The letter from the local IRB shall be submitted to the Contracting Office; and
(3) A copy of a letter from the RIHSC stating that it or its designee has reviewed and approved the proposed research protocol. This shall be submitted to the Contracting Officer within three business days of its issuance.
The Contractor shall not advertise for, recruit, or enroll human subjects, or otherwise commence any research involving human subjects under this contract, until RIHSC has reviewed and approved its research. The Contractor may commence other limited aspects of contract performance prior to receiving RIHSC or its designee approval of its proposed research protocol. Research involving human subjects may commence immediately upon the Contractor’s receipt of RIHSC or its designee approval; however, the Contractor shall submit a copy of RIHSC’s or its designee’s letter of approval to the Contracting Officer within three business days of its receipt.
Failure to obtain RIHSC or its designee approval of proposed research protocols may result in the termination of this contract.
(c) The Contractor further agrees that:
(1) The Contractor will provide a letter from RIHSC, at least annually, stating that RIHSC or its designee has reviewed and approved the research protocols for research performed under this contract. This shall be submitted to the Contracting Officer for inclusion in the contract file.
(2) The Contractor will submit all proposed modifications and amendments to research protocols for research performed under this contract to RIHSC for review and approval. Modifications and amendments include, but are not limited, to changes to consent forms and advertising materials, and the addition or deletion of investigators. Changes may be instituted immediately after the Contractor has received both the local IRB and RIHSC or its designee approval (except when necessary to eliminate apparent immediate hazards to the subject); however the Contractor shall submit a copy of the letter evidencing RIHSC’s or its designee’s approval of the proposed changes to the Contracting Officer within three business days of its receipt.
352.270-12 Needle Exchange.
As prescribed in HHSAR 370.304(d), the Contracting Officer shall insert the following clause:
The Contractor shall not use any funds obligated under this contract to carry out any program of distributing sterile needles or syringes for the hypodermic injection of any illegal drug.
352.270-13 Continued Ban on Funding Abortion and Continued Ban on Funding of Human Embryo Research.
As prescribed in HHSAR 370.304(e), the Contracting Officer shall insert the following clause:
(a) The Contractor shall not use any funds obligated under this contract for any abortion.
(b) The Contractor shall not use any funds obligated under this contract for the following:
(1) The creation of a human embryo or embryos for research purposes; or
(2) Research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury of death greater than that allowed for research on fetuses in utero under 45 CFR part 46 and Section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).
(c) The term “human embryo or embryos” includes any organism, not protected as a human subject under 45 CFR part 46 as of the date of the enactment of this Act, that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes of human diploid cells.
(d) The Contractor shall not use any Federal funds for the cloning of human beings.
PART 353 – FORMS [RESERVED]
SUBCHAPTERS I-L [RESERVED]
SUBCHAPTER M – HHS SUPPLEMENTATIONS
PART 370 – SPECIAL PROGRAMS AFFECTING ACQUISITION
Subparts 370.1-370.2 [Reserved]
Subpart 370.3 – Acquisitions Involving Human Subjects
370.300 Scope of subpart.
This subpart applies to all research activities conducted under contracts involving human subjects. See 45 CFR 46.102(d) and (f).
370.301 Policy.
It is the Department of Health and Human Services (HHS) policy that the contracting officer shall not award a contract involving human subjects until the prospective contractor provides assurance that the activity will undergo initial and continuing review by an appropriate Institutional Review Board (IRB) in accordance with HHS regulations at 45 CFR 46.103. The contracting officer shall require a Federal-wide assurance (FWA), approved by the HHS Office for Human Research Protections (OHRP), of each contractor, subcontractor, or institution engaged in human subjects research in performance of a contract. OHRP administers the assurance covering all HHS-supported or HHS-conducted activities involving human subjects.
370.302 Federal-wide Assurance (FWA).
(a) OHRP-Approved FWAs are found at the following Web site: http://ohrp.cit.nih.gov/search/search.aspx?styp=bsc.
(b) Normally a contractor, subcontractor, or institution must provide approval of a FWA before a contract is awarded. If a contractor, subcontractor, or institution does not currently hold an approved FWA, it shall submit an explanation with its proposal and an FWA application prior to submitting a proposal. The contracting officer, on a case by case basis, may make award without an approved assurance in consultation with OHRP.
(c) A contractor, subcontractor, or institution must submit all FWAs, including new FWAs, using the electronic submission system available through the OHRP Web site at http://ohrp.cit.nih.gov/efile/, unless an institution lacks the ability to do so electronically. If an institution believes it lacks the ability to submit its FWA electronically, it must contact OHRP by telephone or email (see http://www.hhs.gov/ohrp/assurances/index.html) and explain why it is unable to submit its FWA electronically.
370.303 Notice to offerors.
(a) The contracting officer shall insert the provision at 352.270-4a, Notice to Offerors, Protection of Human Subjects, in solicitations that involve human subjects. The contracting officer shall use the clause with its Alternate I when the agency is prescribing a date later than the proposal submission by which the offeror must have an approved FWA.
(b) Institutions having an OHRP-approved FWA shall certify IRB approval of submitted proposals in the manner required by instructions for completion of the contract proposal; by completion of an OMB Form No. 0990-0263, Protection of Human Subjects Assurance Identification/IRB Certification/Declaration of Exemption (Common Rule); or by letter indicating the institution’s OHRP-assigned FWA number, the date of IRB review and approval, and the type of review (convened or expedited). The date of IRB approval must not be more than 12 months prior to the deadline for proposal submission.
(c) The contracting officer generally will not request FWAs for contractors, subcontractors, or institutions prior to selecting a contract proposal for negotiation. When a contractor submits an FWA, it provides certification for the initial contract period; no additional documentation is required. If the contract provides for additional years to complete the project, the contractor shall certify annually in the manner described in 370.303(b).
(d) For the Food and Drug Administration (FDA), the contracting officer shall insert the provision at 352.270-10, Notice to Offerors – Protection of Human Subjects, Research Involving Human Subjects Committee (RIHSC) Approval of Research Protocols Required, in solicitations that involve human subjects when the research is subject to RIHSC review and approval.
370.304 Contract clauses.
(a) The contracting officer shall insert the clause at 352.270-4b, Protection of Human Subjects, in solicitations, contracts and orders involving human subjects.
(b) The contracting officer shall insert the clause at 352.270-6, Restriction on Use of Human Subjects, in contracts and orders if the contractor has an approved FWA of compliance in place, but cannot certify prior to award that an IRB registered with OHRP reviewed and approved the research, because definite plans for involvement of human subjects are not set forth in the proposal (e.g., projects in which human subjects’ involvement will depend upon completion of instruments, prior animal studies, or purification of compounds). Under these conditions, the contracting officer may make the award without the requisite certification, as long as the contracting officer includes appropriate conditions in the contract or order.
(c) For FDA, the contracting officer shall insert the clause at 352.270-11, Protection of Human Subjects, Research Involving Human Subjects Committee (RIHSC) Approval of Research Protocols Required, in contracts and orders that involve human subjects when the research is subject to RIHSC review and approval.
(d) The contracting officer shall insert the clause at 352.270-12, Needle Exchange, in solicitations, contracts, and orders involving human subjects.
(e) The contracting officer shall insert the clause at 352.270-13, Continued Ban on Funding Abortion and Continued Ban on Funding of Human Embryo Research, in solicitations, contracts, and orders involving human subjects.
Subpart 370.4 – Acquisitions Involving the Use of Laboratory Animals
370.400 Scope of subpart.
This subpart applies to all research, research training, biological testing, housing and maintenance, and other activities involving live vertebrate animals conducted under contract. Additional information can be found in Public Health Service (PHS) Policy on Humane Care and Use of Laboratory Animals http://grants.nih.gov/grants/olaw/references/phspolicylabanimals.pdf.
370.401 Policy.
(a) It is HHS policy that contracting activities shall not award a contract involving live vertebrate animals until the Contractor provides acceptable assurance the contract work is subject to initial and continuing review by an appropriate Institutional Animal Care and Use Committee (IACUC) as described in the PHS Policy at IV.B.6 and 7. The contracting officer shall require an applicable Animal Welfare Assurance approved by the Office of Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), of each contractor, subcontractor, or institution having responsibility for animal care and use involved in performance of the contract. Normally the assurance shall be approved before award. The contracting officer, on a case-by-case basis, may make award without an approved assurance in consultation with OLAW. For additional information see PHS Policy II., IV.A, and V.B.
(b) The OLAW, NIH, is responsible for negotiating assurances covering all HHS/PHS-supported or HHS/PHS-conducted activities involving the care and use of live vertebrate animals. OLAW shall provide guidance to contracting officers regarding adequate animal care and use, approval, disapproval, restriction, or withdrawal of approval of assurances. For additional information see PHS Policy V.A.
(c) If using live vertebrate animals, HHS policy requires that offerors address the points in the Vertebrate Animal Section (VAS) of the Technical Proposal. Each of the points must be addressed in the VAS portion of the Technical Proposal. For additional information see PHS Policy and use Contract Proposal VAS Worksheet. http://grants.nih.gov/grants/olaw/references/phspol.htm# InformationRequiredinApplications- ProposalsforAwardsSubmittedtoPHS and http://grants.nih.gov/grants/olaw/VAScontracts.pdf.
370.402 Assurances.
(a) Animal Welfare Assurances may be one of three types:
(1) Domestic Assurance (DA). A DA describes the institution’s animal care and use program, including but not limited to the lines of authority and responsibility, veterinary care, IACUC composition and procedures, occupational health and safety, training, facilities, and species housed. A DA listed in OLAW’s list of institutions with an approved DA is acceptable for purposes of this policy.
(2) Inter-institutional Assurance (IA). The offeror, its proposed subcontractor, or institution shall submit an IA when it does not have a proprietary animal care and use program, facilities to house animals or IACUC, and does not conduct animal research on-site. The offeror will perform the animal activity at an institution with an Animal Welfare Assurance named as a performance site. An IA approval extends to the full period of contract performance (up to 5 years) limited to the specific award or single project.
(3) Foreign Assurance (FA). The Foreign Assurance is required for institutions outside the U.S. that receive PHS funds directly through a contract award. The Foreign Assurance also applies to institutions outside the U.S. that receive PHS funds indirectly (named as a performance site). An FA listed in OLAW’s list of institutions with an approved FA is acceptable for purposes of this policy.
(b) The contracting officer shall forward copies of proposals selected for negotiation and requiring an assurance to OLAW at [email protected], as early as possible to secure the necessary assurances.
(c) A contractor providing animal care services at an institution with an Animal Welfare Assurance, such as a Government-owned, Contractor-operated (GOCO) site, does not need a separate assurance. GOCO site assurances normally cover such contractor services.
370.403 Notice to offerors.
(a) The contracting officer shall insert the provision at 352.270-5a, Notice to Offerors of Requirement for Compliance with the Public Health Service Policy on Humane Care and Use of Laboratory Animals, in solicitations involving live vertebrate animals.
(b) Offerors having a DA on file with OLAW shall submit IACUC approval of the use of animals in the manner required by the solicitation, but prior to award. The date of IACUC approval must not be more than 36 months prior to award.
(c) It is not necessary for offerors lacking an Animal Welfare Assurance to submit assurances or IACUC approval with proposals. OLAW shall contact contractors, subcontractors, and institutions to negotiate necessary assurances and verify IACUC approvals when requested by the contracting officer.
370.404 Contract clause.
The contracting officer shall insert the clause at 352.270-5b, Care of Live Vertebrate Animals, in solicitations, contracts, and orders that involve live vertebrate animals.
Subparts 370.5-370.6 [Reserved]
Subpart 370.7 – Acquisitions Under the Leadership Act
370.700 Scope of subpart.
This subpart sets forth the acquisition requirements regarding implementation of Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome (HIV/AIDS) programs under the President’s Emergency Plan for AIDS Relief as established by the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, as amended (Pub. L. 108-25, Pub. L. 110-293, Pub. L. 113-56).
370.701 Solicitation provision.
The contracting officer shall insert the provision at 352.270-9, Non-Discrimination for Conscience, in solicitations valued at more than the micro-purchase threshold:
(a) In connection with the implementation of HIV/AIDS programs under the President’s Emergency Plan for AIDS Relief established by the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, as amended; or
(b) Where the contractor will receive funding under the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003, as amended. In resolving any issues or complaints that offerors may raise regarding meeting the requirements specified in the provision, the contracting officer shall consult with the Office of Global Health Affairs, Office of the General Counsel, the Program Manager, and other HHS officials, as appropriate.
PARTS 371-399 [RESERVED]
CHAPTER 4 – DEPARTMENT OF AGRICULTURE
SUBCHAPTER A – GENERAL
PART 400 [RESERVED]
PART 401 – AGRICULTURE ACQUISITION REGULATION SYSTEM
401.000 Scope of part.
This part presents basic policies and general information about the Department of Agriculture’s (USDA) Acquisition Regulation, subsequently referred to as the AGAR. The AGAR is an integral part of the Federal Acquisition Regulations System.
Subpart 401.1 – Purpose, Authority, Issuance
401.101 Purpose.
(a) The AGAR provides for the codification and publication of uniform policies and procedures for acquisitions by contracting activities within USDA.
(b) The purpose of the AGAR is to implement the Federal Acquisition Regulation (FAR), where further implementation is needed, and to supplement the FAR when coverage is needed for subject matter not covered in the FAR. The AGAR is not by itself a complete document, as it must be used in conjunction with the FAR.
401.103 Authority.
The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated authority to promulgate Departmental acquisition regulations.
401.104 Applicability.
The FAR and AGAR apply to all USDA acquisitions of supplies and services (including construction) which obligate appropriated funds, unless otherwise specified in this chapter or excepted by law.
401.105 Issuance.
401.105-1 Publication and code arrangement.
(a) The AGAR is codified in the Code of Federal Regulations (CFR) as Chapter 4 of Title 48, Federal Acquisition Regulations System, to implement and supplement Chapter 1 which constitutes the FAR. Parts 400 through 499 have been assigned to USDA by the Office of the Federal Register.
(b) The AGAR and its subsequent changes are published in:
(1) Daily issues of the
(2) Cumulative form in the CFR, and,
(3) Electronic form on the USDA Departmental Administration Procurement Homepage (see 401.170).
(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 553, provides an exception from the standard public rulemaking procedures to the extent that the rule involves a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. In 1971, Secretary of Agriculture Hardin announced a voluntary partial waiver from the Administrative Procedure Act exception, and USDA agencies generally are required to provide notice and an opportunity for public comment on proposed rules (36 FR 13804, July 24, 1971). The AGAR has been promulgated and may be revised from time to time in accordance with the rulemaking procedures of the Administrative Procedure Act. The USDA also is required to publish for public comment procurement regulations in the
401.105-2 Arrangement of regulations.
AGAR coverage parallels the FAR in format, arrangement, and numbering system. However, subdivisions below the section and subsection levels may not always correlate directly to FAR designated paragraphs and subparagraphs.
401.105-3 Copies.
Copies of the AGAR published in CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.
401.106 OMB approval under the Paperwork Reduction Act.
The following OMB control numbers apply to USDA solicitations and specified information collections within the AGAR:
| AGAR segment | OMB Control No. |
|---|---|
| 411.170 | 0505-0014 |
| 415.2 | 0505-0013 |
| 436.575 | 0505-0011 |
| 437.110 | 0505-0015 |
| 437.270 | 0505-0016 |
| 452.211-1 | 0505-0014 |
| 452.215-71 | 0505-0013 |
| 452.236-75 | 0505-0011 |
| 452.237-74 | 0505-0015 |
| 452.237-76 | 0505-0016 |
401.170 Electronic access to regulatory information.
The USDA Departmental Administration Procurement Homepage provides access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and other USDA procurement policy and guidance in electronic form. The Internet address for the Procurement Homepage is URL http://www.usda.gov/procurement/.
Subpart 401.2 – Administration
401.201 Maintenance of the FAR.
401.201-1 The two councils.
(a) USDA’s representative on the Civilian Agency Acquisition Council is designated by the SPE.
(b) The Procurement Policy Division will coordinate proposed FAR revisions within USDA.
Subpart 401.3 – Agency Acquisition Regulations
401.301 Policy.
(a) The SPE, subject to the authorities in 401.103 and FAR 1.301, may issue and publish Departmental regulations, that together with the FAR, constitute Department-wide policies, procedures, solicitation provisions, and contract clauses governing the contracting process or otherwise controlling the relationship between USDA (including any of its contracting activities) and contractors or prospective contractors.
(b) Each designated head of a contracting activity (HCA) is authorized to issue or authorize the issuance of, at any organizational level, internal guidance which does not have a significant effect beyond the internal operating procedures of the activity, or a significant cost or administrative impact on offerors or contractors. Internal guidance issued by contracting activities will not be published in the
(1) Are consistent with the policies and procedures contained in this chapter;
(2) Follow the format, arrangement, and numbering system of this chapter to the extent practicable;
(3) Contain no material which duplicates, paraphrases, or is inconsistent with this chapter; and
(4) Are numbered and identified by use of alphabetical suffixes to the chapter number as follows:
401.304 Agency control and compliance procedures.
(a) The AGAR System is under the direct oversight and control of the SPE, who is responsible for review and issuance of all Department-wide acquisition regulations published in the
(b) The SPE is also responsible for review and issuance of unpublished, Department-wide internal guidance under the AGAR System.
(c) HCA’s are responsible for establishment and implementation of formal procedures for oversight and control of unpublished internal guidance issued within the contracting activity to implement FAR or AGAR requirements. These procedures shall be subject to the review and approval by the SPE.
(d) The SPE is responsible for evaluating coverage under the AGAR System to determine applicability to other agencies and for recommending coverage to the FAR Secretariat for inclusion in the FAR.
(e) Recommendations for revision of existing FAR coverage or new FAR coverage shall be submitted by the HCA to the SPE for further action.
401.370 Exclusions.
Subject to the policies of FAR subpart 1.3, certain USDA acquisition policies and procedures may be excluded from the AGAR under appropriately justified circumstances, such as:
(a) Subject matter which is effective for a period less than 12 months.
(b) Subject matter which is instituted on an experimental basis for a reasonable period.
(c) Acquisition procedures instituted on an interim basis to comply with the requirements of statute, regulation, Executive Order, OMB Circular, or OFPP Policy Letter.
401.371 AGAR Advisories.
The SPE may issue AGAR Advisories, consistent with the policies of the FAR and the AGAR, for the following purposes:
(a) To communicate Department-wide policy and/or procedural guidance to contracting activities;
(b) To delegate to procurement officials authority to make determinations or to take action to implement the policies of the FAR or the AGAR; and,
(c) To establish internal policy and procedures on an interim basis, prior to incorporation in the AGAR or in a Departmental Directive.
(d) AGAR Advisories are only available in electronic format on the USDA Procurement Web site at http://www.usda.gov/procurement/.
401.372 Departmental directives.
Subject to the policies of FAR 1.3, USDA from time to time may issue internal directives to establish procedures, standards, guidance, or methods of performing duties, functions, or operations. Such directives include Departmental Regulations (DR’s), Departmental Notices, and Secretary’s Memoranda.
Subpart 401.4 – Deviations From the FAR and AGAR
401.402 Policy.
Requests for authority to deviate from the provisions of the FAR or the AGAR shall be submitted in writing as far in advance as the exigencies of the situation will permit. Each request for deviation shall contain the following:
(a) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR and AGAR;
(b) The reason why the deviation is considered necessary or would be in the best interest of the Government;
(c) If applicable, the name of the contractor and identification of the contract affected;
(d) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request;
(e) A description of the intended effect of the deviation;
(f) A statement of the period of time for which the deviation is needed; and
(g) Any pertinent background information which will contribute to a full understanding of the desired deviation.
401.403 Individual deviations.
In individual cases, deviations from either the FAR or the AGAR will be authorized only when essential to effect a necessary acquisition or where special circumstances make such deviations clearly in the best interest of the Government. Except for cost principles, HCA’s may approve individual deviations from the AGAR, after coordinating with the General Counsel and the SPE. No deviations from the FAR or AGAR may be authorized at the contracting office level. A copy of each deviation and its supporting documentation shall be provided to the SPE. Deviations from the FAR shall not be made unless such action is authorized by the SPE after consultation with the Office of the General Counsel and any other appropriate office, on the basis of a written justification stating clearly the special circumstances involved.
401.404 Class deviations.
Where deviations from the FAR or AGAR are considered necessary for classes of contracts, requests for authority to deviate shall be submitted in writing to the SPE for approval. The SPE may authorize class deviations from the FAR without consulting the Chairperson of the Civilian Agency Acquisition Council where urgency precludes consultation. The SPE shall subsequently inform the Chairperson of the Civilian Agency Acquisition Council of the deviation including the circumstances under which it was required.
Subpart 401.6 – Contracting Authority and Responsibilities
401.601 General.
(a) The authority and responsibility vested in the Secretary to manage USDA’s acquisition function is delegated through the Assistant Secretary for Administration to the SPE. This broad authority includes, but is not limited to, the following responsibilities:
(1) Prescribing and publishing Departmental acquisition policies, regulations, and procedures.
(2) Taking any necessary actions consistent with policies, regulations, and procedures with respect to purchases, contracts, leases, and other transactions.
(3) Designating contracting officers.
(4) Establishing clear lines of contracting authority.
(5) Evaluating and monitoring the performance of USDA’s acquisition system.
(6) Managing and enhancing career development of the contracting work force.
(7) Participating in the development of Government-wide acquisition policies, regulations, and standards; and determining specific areas where government-wide performance standards should be established and applied.
(8) Determining areas of Department-unique standards and developing unique Department-wide standards.
(9) Certifying to the Secretary that the acquisition system meets approved standards.
(b) The SPE may delegate contracting authority to the Heads of Contracting Activities (HCA’s) and the responsibility to manage their acquisition function.
(c) Unless prohibited by the FAR, the AGAR, or by other applicable statutes and regulations, the SPE may redelegate to HCA’s the authority to make determinations as the agency head in order to implement the policies and procedures of the FAR. Such delegations shall be in writing, but need not be published.
(d) Unless prohibited by the FAR, the AGAR, or by other applicable statutes or regulations, each HCA may designate one individual from the contracting activity to carry out the functions of the HCA (HCAD). The HCAD may exercise all authority delegated to the HCA.
401.602 Contracting officers.
(a) Definitions. Ratification, as used in this section, means the signed, documented action taken by an authorized official to approve and sanction a previously unauthorized commitment.
Unauthorized commitment, as used in this section, means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government.
(b) Policy. The HCA may delegate ratification authority to the chief of the contracting office.
(c) Procedure. Whenever an official of the cognizant contracting activity who is authorized to ratify unauthorized commitments learns that a person or firm has assumed work as a result of an unauthorized commitment, that official shall take the following actions:
(1) Immediately inform any person who is performing work as a result of an unauthorized commitment that the work is being performed at that person’s risk;
(2) Inform the individual who made the unauthorized commitment of the seriousness of the act and the possible consequences;
(3) Ensure that the individual who made the unauthorized commitment furnishes all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to: a statement as to why a contracting officer was not used; why the vendor was selected and a list of sources considered; a description of work to be performed or products to be furnished; the estimated or agreed price; whether an appropriation is available for the work; and whether performance has begun. Under exceptional circumstances, such as when the individual who made the unauthorized commitment is no longer available to attest to the circumstances of the unauthorized commitment, the ratifying official may waive these requirements; and
(4) Decide whether ratification is proper and proceed as follows:
(i) If ratification is not justifiable, provide the cognizant program office, contracting office, and the unauthorized contractor with an explanation of the decision not to ratify.
(ii) If ratification appears adequately justified, ratify the action and retain or assign the contract to a successor contracting officer if necessary.
(iii) Maintain related approval, decisional, and background documents in the contract file for audit purposes.
(iv) Notify the cognizant program supervisor or line officer about the final disposition of the case; the notification may include a recommendation that the unauthorized commitment should be further considered a violation of USDA’s employee conduct regulations.
401.603 Selection, appointment, and termination of appointment.
401.603-1 General.
An HCA may delegate contracting authority to the extent authorized by the SPE in a general delegation of acquisition authority, by appointing qualified individuals as contracting officers, in accordance with the USDA Contracting Officer Warrant System, Departmental Regulation 5001-1.
PART 402 – DEFINITIONS OF WORDS AND TERMS
402.000 Scope of part.
As used throughout this chapter, the following words and terms are used as defined in this subpart unless the context in which they are used clearly requires a different meaning, or a different definition is prescribed for a particular part or portion of a part.
Subpart 402.1 – Definitions
402.101 Definitions.
Acquisition official means an individual who has been delegated authority to manage or to exercise acquisition functions and responsibilities.
Agency head or Head of the Agency means the Secretary of Agriculture, Deputy Secretary, or the Assistant Secretary for Administration.
Head of the contracting activity (HCA) means the official who has overall responsibility for managing the contracting activity (i.e., Chief, Forest Service; Administrator, Agricultural Research Service; etc.), or the individual designated by such an official to carry out the functions of the HCA.
Senior Procurement Executive (SPE) means the agency official appointed as such by the head of the agency pursuant to Executive Order 12931. The Director, Office of Procurement and Property Management, has been designated as the USDA SPE.
PART 403 – IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 403.1 – Safeguards
403.101 Standards of conduct.
403.101-3 Agency regulations.
(a) The standards of conduct for USDA procurement officials are the uniform standards established by the Office of Government Ethics in 5 CFR Part 2635, Standards of Ethical Conduct for Employees of the Executive Branch, and FAR 3.104, Procurement integrity.
(b) Procurement officials and other employees who require advice concerning the application of standards of conduct to any acquisition issue shall obtain ethics advisory opinions from ethics advisory officials in their agency personnel offices.
403.104 Procurement integrity.
403.104-5 [Reserved]
403.104-7 Violations or possible violations.
The contracting officer shall forward information concerning any violation or possible violation of the Procurement Integrity Act (41 U.S.C. 423) to the chief of the contracting office.
Subpart 403.2 – Contractor Gratuities to Government Personnel
403.203 Reporting suspected violations of the gratuities clause.
A suspected violation of the contract clause, FAR 52.203-3, Gratuities, shall be reported immediately to the cognizant contracting officer in writing, stating the circumstances surrounding the incident(s), the date(s), and names of all parties involved. The contracting officer shall review the report for completeness, add any additional information deemed necessary and a recommendation for action, and submit the report to the HCA.
403.204 Treatment of violations.
The HCA shall review the report and consult with the Offices of General Counsel and Inspector General to determine whether further action should be pursued. If it is found that the facts and circumstances warrant further action, the HCA shall give the contractor a formal written notice which summarizes the reported violation and affords the contractor the opportunity to make a written or oral response within a reasonable, specified period after receipt of the notice. The notice shall be sent by certified mail with return receipt requested. Oral presentations shall follow the procedures outlined in FAR 3.204(b). The HCA shall furnish copies of any adverse determination to the contracting officer and the Department Debarring Officer for their subsequent considerations under FAR 3.204(c)(1) and (2), respectively.
Subpart 403.3 – Reports of Suspected Antitrust Violations
403.303 Reporting suspected antitrust violations.
Contracting officers shall report the circumstances of suspected violations of antitrust laws to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).
Subpart 403.4 – Contingent Fees
403.405 Misrepresentations or violations of the Covenant Against Contingent Fees.
(a) A suspected misrepresentation or violation of the Covenant Against Contingent Fees shall be documented in writing by the contracting officer and reported immediately to the chief of the contracting office. The chief of the contracting office shall determine if a violation has occurred and report any violation to the Office of Inspector General. The chief of the contracting office shall take action in accordance with FAR 3.405(b).
(b) If the chief of the contracting office decides to refer the case to the Department of Justice, it should be referred through the Office of Inspector General with a copy of the report and referral submitted through the HCA to the Senior Procurement Executive.
Subpart 403.5 – Other Improper Business Practices
403.502 Subcontractor kickbacks.
Contracting officers shall report the circumstances of suspected violations of the Anti-Kickback Act (41 U.S.C. 51-58) to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).
Subpart 403.6 – Contracts With Government Employees or Organizations Owned or Controlled by Them
403.602 Exceptions.
The HCA is authorized to accept a contract from the policy in FAR 3.601.
403.603 Responsibilities of the contracting officer.
The contracting officer, when requesting authorization under 403.602, shall prepare a written determination and findings for the signature of the HCA. The determination shall document compliance with FAR 3.603, specifying the compelling reason(s) for award, and shall be placed in the contract file.
Subpart 403.8 – Limitation on the Payment of Funds To Influence Federal Transactions
403.806 Processing suspected violations.
Suspected violations of the requirements of 31 U.S.C. 1352 shall be referred to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).
PART 404 – ADMINISTRATIVE MATTERS
Subpart 404.2 – Contract Distribution
404.203 Taxpayer identification information.
(a) If the contractor furnishes taxpayer identification number (TIN) and type of organization information pursuant to solicitation provision 52.204-3 or 52.212-3, and the USDA Office of the Chief Financial Officer, Controller Operations Division, New Orleans will be the payment office, that information will be entered into the Foundation Financial Information System (FFIS) in accordance with FFIS Vendor Table Maintenance Procedures set forth in FFIS Bulletins issued by the Office of the Chief Financial Officer and AGAR Advisories issued by the Office of Procurement and Property Management.
(b) Separate submission of the TIN or type of organization information, in accordance with 52.204-3 or 52.212-3, is not required for contractors registered in the Central Contractor Registration (CCR) database.
Subpart 404.4 – Safeguarding Classified Information Within Industry
404.403 Responsibilities of contracting officers.
When a proposed solicitation is likely to require access to classified information, the contracting officer shall consult with the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management, regarding the procedures that must be followed.
Subpart 404.6 – Contract Reporting
404.601 [Reserved]
404.602 Federal Procurement Data System.
(a) Contracting activities shall report contract actions into the Federal Procurement Data System in accordance with the instructions issued or distributed by the SPE.
(b) The unique identifier for each contract action reported to the Federal Procurement Data System shall begin with the two-letter USDA Agency Prefix “AG”.
Subpart 404.8 – Government Contract Files
404.870 Document numbering system.
The SPE shall issue AGAR Advisories to establish and maintain a numbering system for USDA contracts, modifications, and delivery/task orders. USDA contracting offices shall number contracts, modifications, and orders in accordance with this numbering system.
Subpart 404.11 – Central Contractor Registration
404.1103 Procedures.
(a) Contracting officers and other USDA employees shall not enter information into the Central Contractor Registration (CCR) database on behalf of prospective contractors. Prospective contractors who are unable to register on-line at the CCR Web site should be advised to submit a written application to CCR for registration into the CCR database. USDA employees may assist prospective contractors by downloading the registration template, CCR handbook, and other information from the CCR Web site and providing copies of that material to requesters. Written applications for registration may be submitted to Department of Defense Central Contractor Registration, 74 Washington Ave., Suite 7, Battle Creek, MI 49017-3084.
(b) Verification that the prospective contractor is registered in the CCR database shall be done via the CCR Internet Web site http://www.ccr.gov. This verification process using the CCR Web site applies both to acquisitions executed using USDA legacy procurement systems and the USDA Integrated Acquisition System.
(c) AGAR Advisories issued by the Office of Procurement and Property Management will address internal procedures for integration of contractor information in the CCR database with the USDA FFIS payment system.
Subpart 404.70 – Precontract Notices
404.7001 Solicitation provision.
The contracting officer shall insert the provision at 452.204-70, Inquiries, in all solicitations.
SUBCHAPTER B – COMPETITION AND ACQUISITION PLANNING
PART 405 – PUBLICIZING CONTRACT ACTIONS
Subpart 405.3 – Synopses of Contract Awards
405.303 Announcement of contract awards.
Contracting officers shall make information available on any contract award with an estimated total value over $1 million (including options) to their agency congressional liaison office in sufficient time for the agency to announce it by 5:00 p.m. Washington, DC time on the day of award. The agency congressional liaison office shall, concurrent with the public announcement, provide the award announcement information to the USDA Congressional Relations Office.
Subpart 405.4 – Release of Information
405.403 Requests from Members of Congress.
The head of the contracting activity (HCA) is the agency head designee pursuant to FAR 5.403.
405.404 Release of long-range acquisition estimates.
405.404-1 Release procedures.
(a) HCA’s shall establish written procedures to control the release of long-range acquisition estimates, as authorized under FAR 5.404-1.
(b) Classified information shall not be released without the approval of the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management. Departmental Manuals and Regulations (3400 series) contain guidance on classified information.
Subpart 405.5 – Paid Advertisements
405.502 Authority.
(a) The authority vested in the agency head to authorize publication of paid advertisements in newspapers (44 U.S.C. 3702) is delegated, with power of redelegation, to HCA’s. HCA redelegation of this authority shall be in writing.
(b) Policies and procedures regarding prior authorization required for media other than newspapers are contained in USDA Departmental Regulations 1400 series.
PART 406 – COMPETITION REQUIREMENTS
Subpart 406.2 – Full and Open Competition After Exclusion of Sources
406.202 Establishing or maintaining alternative sources.
The Senior Procurement Executive is authorized to make determinations pursuant to FAR 6.202(a) and sign the determination and findings required by FAR 6.202(b).
Subpart 406.3 – Other Than Full and Open Competition
406.302 Circumstances permitting other than full and open competition.
(a) Authority. Section 1472 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) authorizes the Secretary of Agriculture to award contracts, without competition, to further research, extension, or teaching programs in the food and agricultural sciences.
(b) Limitations. The use of this authority is limited to those instances where it can be determined that contracting without full and open competition is in the best interest of the Government and necessary to the accomplishment of the research, extension, or teaching program. Therefore:
(1) Contracts under the authority of the Act shall be awarded on a competitive basis to the maximum practicable extent.
(2) When full and open competition is not deemed appropriate, the contracting officer shall make a written justification on a case-by-case basis in accordance with procedures in FAR 6.303 and 6.304.
Subpart 406.5 – Competition Advocates
406.501 Requirements.
(a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been designated as the Competition Advocate for USDA.
(b) Each HCA shall designate a competition advocate for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Competition Advocate for USDA.
PART 407 – ACQUISITION PLANNING
Subpart 407.1 – Acquisition Plans
407.103 Agency-head responsibilities.
Heads of Contracting Activities (HCA’s) shall develop procedures to comply with FAR 7.103.
407.170 Advance acquisition plans.
Each HCA shall maintain an advance acquisition planning system.
Subpart 407.3 [Reserved]
Subpart 407.5 – Inherently Governmental Functions
407.503 Policy.
(a) HCA’s shall establish procedures to ensure that requesting activities provide the written determination required by FAR 7.503(e), when submitting requests for procurement of services.
(b) In the event of a disagreement as to whether the functions to be performed are inherently governmental, the HCA may refer the matter to the Senior Procurement Executive (SPE) for resolution. When submitting disagreements to the SPE for resolution the HCA shall provide a summary of the areas of disagreement, supported by the following:
(1) The HCA’s assessment of whether the services are “inherently governmental”;
(2) The basis for that assessment (include references to the definition and policy in FAR subpart 7.5 and/or Office of Federal Procurement Policy letter 92-1);
(3) A copy of the statement of work; and,
(4) The requesting activity’s written determination in accordance with FAR 7.503(e).
(c) Such disagreements shall be resolved prior to issuance of the solicitation.
PART 408 – REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 408.4 – Federal Supply Schedules
408.404 Using schedules.
408.404-3 Requests for waivers.
A copy of the request for a waiver and the approval shall be placed in the contract file to support the acquisition of items off schedule.
Subpart 408.7 – Acquisition From Nonprofit Agencies Employing People Who Are Blind or Severely Disabled
408.701 Definitions.
Committee Member is the Presidential appointee representing USDA as a member of the Committee for Purchase from People Who Are Blind or Severely Disabled.
Organization head is the Under Secretary or Assistant Secretary of a mission area or the head of a USDA staff office.
408.705 Procedures.
(a) The organization head shall appoint one person as Javits-Wagner-O’Day Act (JWOD) Liaison to represent the organization and to coordinate the organization’s actions with the Committee Member.
(b) JWOD advocates may represent more than one organization. Liaisons need not be acquisition officials.
(c) The organization head shall issue and maintain a performance plan to promote and enhance the organization’s acquisitions from JWOD participating nonprofit agencies.
(d) The performance plan shall:
(1) Announce the organization’s support for the JWOD Act;
(2) Establish a promotion program for the products and services provided by the JWOD participating nonprofit agencies;
(3) Provide for the JWOD Liaison’s role in acquisition planning;
(4) Establish measurable program goals for growth or other accomplishment in the organization’s JWOD program actions; and
(5) Establish an awards program for successful participation in the JWOD program.
408.705-2 Direct order process.
(a) The chief of a contracting office may apply to a central nonprofit agency for authorization to order specific supplies or services directly from a JWOD participating nonprofit agency.
(b) A copy of the application should be provided to the JWOD Liaison who will inform the USDA Committee Member.
408.705-3 Allocation process.
(a) The chief of a contracting office may apply to a central nonprofit agency for a production allocation of specific supplies or services to a JWOD participating nonprofit agency.
(b) A copy of the application should be provided to the JWOD Liaison who will inform the USDA Committee Member.
408.705-4 Compliance with orders.
Prior to attempting to resolve a failure to perform by a participating nonprofit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.
408.706 Purchase exemptions.
Prior to applying to the Committee for a purchase exemption, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.
408.707 Prices.
Prior to applying for a price revision, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.
408.711 Quality complaints.
Prior to attempting to resolve a complaint regarding the quality of goods or services provided by participating nonprofit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.
408.712 Specification changes.
Prior to providing 90-days advance notification to the Committee on actions that affect supplies and services on the Procurement List, the chief of the contracting office should provide advance notice to the JWOD Liaison who will inform the USDA Committee Member.
408.714 Communications with the central nonprofit agencies and the Committee.
Any matter requiring referral to the Committee shall be provided to the JWOD Liaison who will coordinate the matter with the Committee Member.
Subpart 408.8 – Acquisition of Printing and Related Supplies
408.802 Policy.
(a) The Director, Office of Communications (OC) has been designated as the central printing authority in USDA, with the authority to represent the USDA before the Joint Committee on Printing (JCP), the Government Printing Office, and other Federal and State agencies on all matters related to printing.
(b) Prior to contracting for any of the items defined in FAR 8.801, the contracting officer shall verify that the requisite approval has been received by the publication liaison officer or requisitioner.
(c) The approval from OC or the approval authority designated by OC shall be maintained in the contract file.
Subpart 408.11 – Leasing of Motor Vehicles
408.1103 Contract requirements.
If the requirement includes the need for the vendor to provide operational maintenance such as fueling, lubrication, or other fluid changes or replenishment, the contracting officer shall include in the contract:
(1) A requirement for the use of fluids and lubricants containing the maximum available amounts of recovered materials, and alternative fuels whenever available; and
(2) A preference for retreaded tires meeting the Federal retread specifications, tires with the maximum recovered material content, or retreading services for the tires on the vehicle.
PART 409 – CONTRACTOR QUALIFICATIONS
Subpart 409.4 – Debarment, Suspension and Ineligibility
409.403 Definitions.
Debarring official. Pursuant to the Secretary’s delegations of authority in 7 CFR 2.24, the Senior Procurement Executive (SPE) is designated as the debarring official (Department Debarring Officer) with the following exceptions:
(a) For commodity contracts awarded on behalf of the Commodity Credit Corporation (CCC), the Executive Vice President, CCC, or his designee is designated as the debarring official pursuant to 7 CFR part 1407.
(b) For contracts awarded under the School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department Debarring Officer has delegated debarring authority to the Agricultural Marketing Service (AMS).
409.404 List of parties excluded from Federal procurement and nonprocurement programs.
The Department Debarring Officer is USDA’s single point of contact with GSA for debarment and suspension actions taken under this subpart. The debarring official for AMS shall notify the Department Debarring Officer of each debarment and suspension action by promptly submitting a copy of the debarment or suspension notice and any later changes to the debarment or suspension status. The Department Debarring Officer will forward a copy of each notice to GSA for inclusion in the Government-wide list.
409.405 Effect of listing.
Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harm the agency’s programs and prevent accomplishment of mission requirements. The SPE is authorized to make the determinations under FAR 9.405. Requests for such determinations shall be submitted through the head of the contracting activity (HCA) to the SPE.
409.405-1 Continuation of current contracts.
The HCA is authorized to make the determinations under FAR 9.405-1.
409.405-2 Restrictions on subcontracting.
The HCA is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2.
409.406 Debarment.
409.406-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for debarment, the case shall be immediately referred through the HCA to the debarring official. The case must be accompanied by a complete statement of the facts (including a copy of any criminal indictments, if applicable) along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring to the debarring official.
(b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines debarment is justified, the debarring official shall initiate the proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA of the action taken.
(c) Fact-finding proceeding. For actions listed under FAR 9.406-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing. The hearing should be held at a location and time that is convenient to the parties concerned, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized representative. Witnesses may be called by either party. The proceedings shall be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment. The contractor shall be provided a copy of a transcript of the proceedings under the conditions established in FAR 9.406-3(b)(2)(ii).
409.407 Suspension.
409.407-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for suspension, the case shall be immediately referred through the HCA to the debarring official. The case must be accompanied by a complete statement of the facts along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring it to the debarring official.
(b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines suspension is justified, the debarring official shall initiate the proposed suspension in accordance with FAR 9.407-3(c) and notify the HCA of the action taken.
(c) Fact-finding proceedings. For actions listed under FAR 9.407-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing, similar in nature to the hearing for debarments as discussed in 409.406-3(c).
Subpart 409.5 – Organizational and Consultant Conflicts of Interest
409.503 Waiver.
(a) The HCA, on a non-delegable basis, is authorized to waive any general rule or procedure in FAR 9.5 when in the Government’s interest.
(b) Each request for waiver shall include:
(1) The general rule or procedure proposed to be waived;
(2) An analysis of the potential conflict, including the benefits and detriments to the Government and prospective contractors;
(3) A discussion of why the conflict cannot be avoided, neutralized, or mitigated; and
(4) Advice of counsel obtained under FAR 9.504(b).
PART 410 – MARKET RESEARCH
410.001 Policy.
In addition to those uses listed in FAR 10.001, agencies must use the results of market research to –
(a) Ensure the minimum use of hazardous or toxic materials;
(b) Ensure the maximum use of biobased products and biofuels; and
(c) Identify products and services on or eligible for addition to the Javits-Wagner-O’Day Act Procurement List in order to achieve USDA’s goal to increase participation in this program.
410.002 Procedures.
Market research must include obtaining information on the commercial quality assurance practices as an alternative for Government inspection and testing prior to tender for acceptance.
PART 411 – DESCRIBING AGENCY NEEDS
Subpart 411.1 – Selecting and Developing Requirements Documents
411.101 Order of precedence for requirements documents.
(a) Office of Management and Budget (OMB) Circular A-119 establishes a Federal policy requiring the use of voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical.
(b) The HCA is authorized to submit the determination required by OMB Circular A-119 that a voluntary standard is inconsistent with law or otherwise impracticable. The HCA must submit the determination to OMB through the National Institute of Standards and Technology in accordance with the Circular with a copy provided to the SPE.
411.103 Market acceptance.
(a) The head of the contracting activity (HCA) may determine that offerors must demonstrate, in accordance with FAR 11.103(a), the market acceptability of their items to be offered.
(b) The contracting officer shall place a copy of this determination, signed by the HCA, in the solicitation file.
411.106 Purchase descriptions for service contracts.
When contract personnel are to be used, the requiring official shall record on the requisition his or her determination whether harm to the Government might occur should contractor personnel fail to identify themselves as non-Government officials.
411.170 Brand name or equal.
(a) A “brand name or equal” purchase description shall include the following type of information:
(1) Identification of the item by generic description.
(2) Make, model number, catalog designation, or other description, and identification of a commercial catalog where it is listed.
(3) Name of manufacturer, producer, or distributor of the item and complete address.
(4) All salient characteristics of the “brand name or equal” product or products which have been determined by the requisitioner to be essential to the Government’s minimum requirements.
(b) [Reserved]
411.171 Solicitation provisions and contract clauses.
(a) Contracting officers shall insert the provision at 452.211-70, Brand Name or Equal, in solicitations, other than those for construction, where “brand name or equal” purchase descriptions are used.
(b) Contracting officers shall insert the clause at 452.211-71, Equal Products Offered, in solicitations, other than those for construction, where the provision at 452.211-70 is included.
(c) Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.
(d) Contracting officers shall insert the clause at 452.211-73, Attachment to Statement of Work/Specifications, when there are attachments to the description (statement of work) or specifications.
Subpart 411.2 – Using and Maintaining Requirements Documents
411.202 Maintenance of standardization documents.
Recommendations for changes to standardization documents are to be submitted through the Senior Procurement Executive, who will coordinate the submission of these recommendations to the cognizant preparing activity.
Subpart 411.4 – Delivery or Performance Schedules
411.404 Contract clauses.
(a) The contracting officer shall insert the clause at 452.211-74, Period of Performance, when it is necessary to specify a period of performance, beginning on the date of award, date of receipt of notice of award, or a specified date.
(b) The contracting officer shall insert the clause at 452.211-75, Effective Period of the Contract, when it is necessary to specify the effective period of the contract.
Subpart 411.6 – Priorities and Allocations
411.600 Scope of subpart.
The Defense Priorities and Allocation System (DPAS) excludes USDA activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not authorized to place rated orders under DPAS.
PART 412 – ACQUISITION OF COMMERCIAL ITEMS
Subpart 412.3 – Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items
412.302 Tailoring of provisions and clauses for the acquisition of commercial items.
The head of the contracting activity is authorized to approve waivers in accordance with FAR 12.302(c). The approved waiver may be either for an individual contract or for a class of contracts for the specific item. The approved waiver and supporting documentation shall be incorporated into the contract file.
SUBCHAPTER C – CONTRACTING METHODS AND CONTRACT TYPES
PART 413 – SIMPLIFIED ACQUISITION PROCEDURES
Subpart 413.3 – Simplified Acquisition Methods
413.301 Governmentwide commercial purchase card.
USDA policy and procedures on use of the Governmentwide commercial purchase card are established in Departmental Regulation Series 5000.
413.306 SF 44, Purchase Order-Invoice-Voucher.
The Standard Form 44 (and the previously prescribed USDA Form AD-744) is not authorized for use within USDA.
413.307 Forms.
Form AD-838, Purchase Order, is prescribed for use by USDA in lieu of Optional Forms (OFs) 347 and 348 except that use of the OF 347 and OF 348 is authorized when utilizing the USDA Integrated Acquisition System.
PART 414 – SEALED BIDDING
Subpart 414.2 – Solicitation of Bids
414.201 Preparation of invitations for bids.
414.201-6 Solicitation provision.
The contracting officer shall insert the provision 452.214-70, Award by Lot, when multiple items are segregated into clearly identifiable lots and the contracting officer wants to reserve the right to award by item within a lot, if award in that manner would be advantageous to the Government.
Subpart 414.4 – Opening of Bids and Award of Contract
414.404 Rejection of bids.
414.404-1 Cancellation of invitations after opening.
An acquisition official at a level above the contracting officer is authorized to make the determinations under FAR 14.404-1(c) and (e)(1).
414.407 Mistakes in bids.
414.407-3 Other mistakes disclosed before award.
The authority to make the determinations under FAR 14.407-3(a), (b), and (d) is delegated, without power of redelegation, to the head of the contracting activity. The authority to make the determination under FAR 14.407-3(c) is delegated to the contracting officer. Each determination pursuant to FAR 14.407-3 shall have the concurrence of the Office of the General Counsel (OGC).
414.407-4 Mistakes after award.
If a mistake in bid is disclosed after award, the contracting officer shall make a final determination in accordance with the provisions of FAR 14.407-4 (b) and (c) and shall coordinate each proposed determination with OGC. Such coordination shall, at a minimum, consist of the contracting officer providing the proposed determination and the case file to OGC for comment.
414.409 Information to bidders.
414.409-2 Award of classified contracts.
Disposition of classified information shall be in accordance with Departmental Regulation and Manual (3400 Series) and in accordance with direction issued by the Information Security Staff, Personnel and Document Security Division, Office of Procurement and Property Management.
PART 415 – CONTRACTING BY NEGOTIATION
Subpart 415.2 – Solicitation and Receipt of Proposals and Information
415.204 Contract format.
The Senior Procurement Executive is authorized to exempt contracts from the uniform contract format.
415.207 Handling proposals and information.
(a) Throughout the source selection process, agency personnel and non-Government evaluators with access to proposal information shall disclose neither the number of offerors nor their identity except as authorized by FAR subpart 15.5. (See also FAR 5.403.)
(b) The contracting officer shall obtain the following written agreement from the non-Government evaluator prior to the release of any proposal to that evaluator.
1. To the best of my knowledge and belief, no conflict of interest exists that may diminish my capacity to perform an impartial and objective review of the offeror’s proposal, or may otherwise result in a biased opinion or an unfair advantage. If a potential conflict of interest arises or if I identify such a conflict, I agree to notify the Government promptly concerning the potential conflict. In determining whether any potential conflict of interest exists, I agree to review whether my or my employer’s relationships with other persons or entities, including, but not limited to, ownership of stocks, bonds, other outstanding financial interests or commitments, employment arrangements (past, present, or under consideration), and, to the extent known by me, all financial interests and employment arrangements of my spouse, minor children, and other members of my immediate household, may place me in a position of conflict, real or apparent, with the evaluation proceedings.
2. I agree to use proposal information only for evaluation purposes. I understand that any authorized restriction on disclosure placed upon the proposal by the prospective contractor or subcontractor or by the Government shall be applied to any reproduction or abstracted information of the proposal. I agree to use my best effort to safeguard such information physically, and not to disclose the contents of, or release any information relating to, the proposal(s) to anyone outside of the Source Evaluation Board or other panel assembled for this acquisition, the Contracting Officer, or other individuals designated by the Contracting Officer.
3. I agree to return to the Government all copies of proposals, as well as any abstracts, upon completion of the evaluation.
(c) The release of a proposal to a non-Government evaluator for evaluation does not constitute the release of information for purposes of the Freedom of Information Act (5 U.S.C. 552).
(d) The contracting officer shall attach a cover page bearing the following notice: GOVERNMENT NOTICE FOR HANDLING PROPOSALS – This proposal shall be used and disclosed for evaluation purposes only. Attach a copy of this Government notice to every reproduction or abstract of the proposal. Any authorized restrictive notices which the submitter places on this proposal shall be strictly complied with. Disclosure of this proposal outside the Government for evaluation purposes shall be made only to the extent authorized by, and in accordance with, FAR 3.104-4, FAR 15.207, and AGAR 415.207.
415.209 Solicitation provisions and contract clauses.
(a) The provision at 452.215-71, Instructions for the Preparation of Technical and Business Proposals, may be used when offerors will be required to submit technical and business proposals. Contracting officers should tailor the clause to reflect the degree of information required for the specific acquisition.
(b) The contracting officer shall insert the provision at 452.215-72, Amendments to Proposals, in solicitations which require the submittal of lengthy, complex technical proposals.
Subpart 415.3 – Source Selection
415.303 Responsibilities.
The head of the contracting activity (HCA) is authorized to appoint an individual other than the contracting officer as the source selection authority.
415.305 Proposal evaluation.
HCAs are responsible for establishing procedures regarding the release of cost information to the members of the technical evaluation team.
Subpart 415.4 – Contract Pricing
415.404-4 Profit.
(a)(1) USDA will use a structured approach to determine the profit or fee prenegotiation objective in acquisition actions when price negotiation is based on cost analysis.
(2) The following types of acquisitions are exempt from the requirements of the structured approach, but the contracting officer shall comply with FAR 15.404-4(d) when analyzing profit for these contracts or actions:
(i) Architect-engineer contracts;
(ii) Construction contracts;
(iii) Contracts primarily requiring delivery of material supplied by subcontractors;
(iv) Termination settlements; and
(v) Cost-plus-award-fee contracts;
(b) Unless otherwise restricted by contracting activity procedures, the Contracting Officer may use another Federal agency’s structured approach if that approach has been formalized and is maintained as part of that Agency’s acquisition regulations (i.e., included in that Agency’s assigned chapter of title 48 of the Code of Federal Regulations).
(c) The HCA is responsible for establishing procedures to ensure compliance with this subpart.
Subpart 415.5 – Preaward, Award, and Postaward Notifications, Protests and Mistakes
415.570 Post-award conference.
If a postaward conference is necessary, the contracting officer shall insert clause 452.215-73, Post-Award Conference.
Subpart 415.6 – Unsolicited Proposals
415.604 Agency points of contact.
HCAs are responsible for establishing procedures to ensure compliance with the requirements of FAR 15.604.
415.606 Agency procedures.
HCAs are responsible for establishing the procedures for control of unsolicited proposals required by FAR 15.606(a) and for identifying the contact points as required by FAR 15.606(b).
PART 416 – TYPES OF CONTRACTS
416.000 Scope of part.
Heads of contracting activities (HCA’s) are authorized to establish written procedures allowing the use of any contract type described in FAR part 16 for acquisitions made under simplified acquisition procedures in FAR part 13.
Subpart 416.2 – Fixed-Price Contracts
416.203 Fixed-price contracts with economic price adjustment.
416.203-4 Contract clauses.
An economic price adjustment clause based on cost indexes of labor or material may be used under the conditions listed in FAR 16.203-4(d) after approval by the HCA and consultation with the Office of the General Counsel.
Subpart 416.4 – Incentive Contracts
416.405 Cost-reimbursement incentive contracts.
416.405-2 Cost-plus-award-fee contracts.
The HCA may designate an acquisition official other than the contracting officer as the fee determination official (FDO) to make the final determination of the award fee. The designated official must have warranted contracting authority at the same level as the contracting officer or higher, and shall not have participated in preparing the contractor performance evaluation. If the HCA does not designate an FDO, the chief of the contracting office shall act as the FDO.
416.406 Contract clauses.
The contracting officer shall insert a clause substantially the same as the clause at 452.216-70, Award Fee, in solicitations and contracts which contemplate the award of cost-plus-award-fee contracts.
416.470 Solicitation provision.
The contracting officer shall insert the provision at 452.216-71, Base Fee and Award Fee Proposal, in solicitations which contemplate the award of a cost-plus-award-fee contract.
Subpart 416.5 – Indefinite-Delivery Contracts
416.505 Ordering.
(a) The Chief, Procurement Policy Division, Office of Procurement and Property Management, has been designated as the Departmental Task Order Ombudsman.
(b) Each HCA shall designate a task order ombudsman for the contracting activity. The HCA shall forward a copy of the designation memorandum to the Departmental Task Order Ombudsman. Contracting activity ombudsmen shall review and resolve complaints from contractors concerning task or delivery orders placed by the contracting activity.
(c) Any contractor who is not satisfied with the resolution of a complaint by a contracting activity ombudsman may request the Departmental Task Order Ombudsman to review the complaint.
416.506 Solicitation provision and contract clauses.
(a) The contracting officer shall insert a provision substantially the same as the provision at 452.216-72, Evaluation Quantities-Indefinite-Delivery Contract, in solicitations which contemplate the award of indefinite-quantity or requirements contracts to establish the basis on which offers will be evaluated.
(b) The contracting officer shall insert the clause at 452.216-73, Minimum and Maximum Contract Amounts, in indefinite-delivery, indefinite-quantity contracts when the clause at FAR 52.216-18 is used.
Subpart 416.6 – Time-and-Materials, Labor-Hour, and Letter Contracts
416.603 Letter contracts.
416.603-2 Application.
The HCA is authorized to extend the period for defining a letter contract required by FAR 16.603-2(c) in extreme cases where it is determined in writing that such action is in the best interest of the Government.
416.603-4 Contract clauses.
The contracting officer shall insert the clause at 452.216-75, Letter Contract, in a definitive contract superseding a letter contract.
416.670 Contract clauses.
The contracting officer shall limit the Government’s obligation under a time-and-materials or labor-hour contract by inserting the clause at 452.216-74, Ceiling Price.
Subpart 416.7 – Agreements
416.702 Basic agreements.
Promptly after execution by the Government, the HCA shall furnish to the Senior Procurement Executive a copy of each basic agreement negotiated with contractors in accordance with FAR 16.702.
PART 417 – SPECIAL CONTRACTING METHODS
Subpart 417.2 – Options
417.204 Contracts.
The head of the contracting activity is authorized to approve contracts which exceed the 5 year limitation in FAR 17.204(e).
PART 418 [RESERVED]
SUBCHAPTER D – SOCIOECONOMIC PROGRAMS
PART 419 – SMALL BUSINESS PROGRAMS
Subpart 419.2 – Policies
419.201 General policy.
It is the policy of USDA to provide maximum practicable contracting and subcontracting opportunities to small business (SB), small disadvantaged business (SDB), HUBZone small business, women-owned business (WOB), veteran-owned small business (VOSB), and service-disabled veteran-owned small business (SDVOSB) concerns.
419.201-70 Office of Small and Disadvantaged Business Utilization (OSDBU).
The Office of Small and Disadvantaged Business Utilization (OSDBU) develops rules, policy, procedures and guidelines for the effective administration of USDA’s small business program that includes all categories named under 419.201.
419.201-71 Small business coordinators.
The head of the contracting activity (HCA) or a representative of the HCA shall designate in writing a small business coordinator in each contracting office. Supervisors of small business coordinators are encouraged to provide sufficient time for the coordinators to carry out their small business program duties. Coordinators’ duties shall include, but not be limited to, the following:
(a) Reviewing each proposed acquisition expected to exceed the simplified acquisition threshold prior to its solicitation. The coordinator shall:
(1) Recommend section 8(a), HUBZone, or SDVOSB action and identify potential contractors, or
(2) Identify available SDB, WOB, and VOSB to be solicited by competitive procedures. Coordinators shall document the contract file with recommendations made and actions taken.
(b) Participating in goal-setting procedures and planning activities and establishing aggressive SDB, WOB, and SDVOSB goals based on the annual review of advance acquisition plans.
(c) Participating in the review of those contracts which require the successful offeror to submit written plans for the utilization of small businesses as subcontractors to include all preference program areas in 419.201.
(d) Ensuring that purchases exceeding $2,500 and not exceeding the simplified acquisition threshold are reserved exclusively for small businesses, including all preference program areas named in 419.201. This policy shall be implemented unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and in terms of quality and delivery of the goods or services being purchased.
(e) Maintaining comprehensive source listings of small businesses.
(f) Upon written request, providing small businesses (in the preference program areas named in 419.201) the bidders’ mailing lists of individuals receiving solicitations which will contain the subcontracting clause entitled “Utilization of Small Business Concerns” (FAR 52.219-8). These lists may be limited to those supplies or services of major interest to the requesting firms.
(g) Developing a program of contacts with local and small (to include all preference program areas named in 419.201) trade, business, and professional associations and organizations and Indian tribal councils to apprise them of USDA’s program needs and recurring contract requirements.
(h) Periodically meeting with program managers to discuss requirements of the small business preference program, to explore the feasibility of breaking large complex requirements into smaller lots suitable for participation by small firms, and to encourage program managers to meet with these firms so that their capabilities can be demonstrated.
(i) Establishing internal operating procedures which implement the requirements of the regulations as set forth in this part 419.
(j) Compiling data and preparing all reports pertaining to the small business program activities, and ensuring that these reports are accurate, complete and up-to-date.
(k) Assisting and counseling small business firms.
(l) Reviewing proposed large contract requirements that may be bundled to determine the potential for breaking out components suitable for purchase from small business firms.
(m) Ensuring that the SBA Resident Procurement Center Representative (PCR) is provided an opportunity and reasonable time to review any solicitation that meets the dollar threshold for small business (including all preference program areas named in 419.201) subcontracting plans.
419.201-73 Reports.
The Director, OSDBU, shall be responsible for submitting reports concerning USDA’s progress and achievements in the procurement preference program.
Subpart 419.5 – Set-Asides for Small Business
419.508 Solicitation provisions and contract clauses.
The contracting officer shall insert the provision at 452.219-70, Size Standard and NAICS Code Information, in solicitations that are set aside for small businesses.
Subpart 419.6 – Certificates of Competency and Determinations of Responsibility
419.602 Procedures.
419.602-1 Referral.
Contracting officers shall refer determinations of non-responsibility regarding small businesses directly to the SBA Regional Office servicing the location where the contractor’s office (home) is located.
419.602-3 Resolving differences between the agency and the Small Business Administration.
The HCA is authorized to appeal the issuance of a COC to SBA Headquarters as provided by FAR 19.602-3(a).
PARTS 420-421 [RESERVED]
PART 422 – APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 422.1 – Basic Labor Policies
422.103 Overtime.
422.103-4 Approvals.
Requests for the use of overtime shall be approved by an acquisition official at a level above the contracting officer in accordance with the procedures in FAR 22.103-4 (a) and (b).
Subpart 422.3 – Contract Work Hours and Safety Standards Act
422.302 Liquidated damages and overtime pay.
Heads of contracting activities (HCA’s) are authorized to review determinations of liquidated damages due under section 104(c) of the Contract Work Hours and Safety Standards Act, and to take remedial action, if appropriate, in accordance with FAR 22.302(c). Contractors or subcontractors may request review of administrative determinations of liquidated damages by written notice to the contracting officer. The contracting officer shall promptly forward appeals of liquidated damages determinations to the HCA.
Subpart 422.4 – Labor Standards for Contracts Involving Construction
422.404 Davis-Bacon Act wage determinations.
422.404-6 Modifications of wage determinations.
HCA’s are authorized to request extension of the 90 day period for award after bid opening as provided in FAR 22.404-6(b)(6).
422.406 Administration and enforcement.
422.406.8 Investigations.
Reports of violations shall be forwarded to the HCA, who shall process such reports in accordance with FAR 22.406-8(d).
Subpart 422.6 – Walsh-Healey Public Contracts Act
422.604 Exemptions.
422.604-2 Regulatory exemptions.
The Assistant Secretary for Administration can request the Secretary of Labor to exempt contracts from the Walsh-Healey Public Contracts Act pursuant to FAR 22.604-2(b). A written finding justifying the request for exemption shall be prepared for the Assistant Secretary’s signature and submitted by the HCA to the Senior Procurement Executive (SPE) for referral to the Assistant Secretary.
422.608 [Reserved]
Subpart 422.8 – Equal Employment Opportunity
422.803 Responsibilities.
The contracting office shall submit questions involving the applicability of Executive Order 11246 and FAR subpart 22.8 through the HCA to the SPE for resolution.
422.804 Affirmative action programs.
422.804-2 Construction.
The HCA shall ensure that each contracting office, awarding nonexempt construction contracts, maintains a current listing of covered geographical areas subject to affirmative action requirements specifying goals for minorities and women in covered construction trades.
422.807 Exemptions.
(a) The Assistant Secretary for Administration is authorized to make the determination in FAR 22.807(a)(1) that a contract is essential to the national security.
(b) The contracting officer shall submit requests for exemptions under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE for determination by the Assistant Secretary of Administration or referral to the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor, as appropriate.
Subpart 422.13 – Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans
422.1305 Waivers.
(a) The Assistant Secretary for Administration is authorized to make the waiver determination in FAR 22.1305(b) that a contract is essential to the national security.
(b) The contracting officer shall submit requests for exemptions under FAR 22.1305(a) and (b) through the HCA to the SPE for determination by the Assistant Secretary for Administration or referral to the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor as appropriate.
422.1308 Complaint procedures.
The contracting officer shall forward complaints received about the administration of the Vietnam Era Veterans Readjustment Assistance Act directly to the Department of Labor as prescribed in FAR 22.1308.
Subpart 422.14 – Employment of Workers With Disabilities
422.1403 Waivers.
(a) The Assistant Secretary for Administration is authorized to make the waiver determinations under FAR 22.1403(a) and (b) with the concurrence of the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor.
(b) The contracting officer shall submit requests for waivers through the HCA to the SPE for determination by the Assistant Secretary for Administration.
422.1406 Complaint procedures.
The contracting officer shall forward complaints received about the administration of Section 503 of the Rehabilitation Act of 1973, as amended, directly to the OFCCP as prescribed in FAR 22.1406.
PART 423 – ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 423.1 [Reserved]
Subpart 423.2 – Energy and Water Efficiency and Renewable Energy
423.202 Policy.
Information on Energy Star, energy efficient, water efficient, and low standby products covered by this policy is available via the Internet at http://www.eere.energy.gov/femp/technologies/eeproducts.cfm.
Subpart 423.4 – Use of Recovered Materials
423.400 Scope of subpart.
This subpart implements and supplements FAR policies and procedures for acquiring products and services when preference is given to offers of products containing recovered materials. This subpart further supplements FAR subpart 23.4 by providing guidance for affirmative procurement programs in accordance with Executive Order 13101 and 42 U.S.C. 6962.
423.402 [Reserved]
423.403 Policy.
It is the policy of USDA to acquire and use Environmental Protection Agency (EPA) designated recycled content products.
423.404 Agency affirmative procurement programs.
The USDA affirmative procurement program (APP) policy applicable to all USDA agencies and staff offices is hereby established. The components of this APP include:
(a) Recovered Materials Preference Program. In accord with the requirements of Section 402(c) of Executive Order 13101, Greening the Government Through Recycling, Waste Prevention, and Federal Acquisition, USDA agencies will include, in all applicable solicitations and contracts, a preference for products and services which meet or exceed the EPA purchasing guidelines as contained in the EPA product Recovered Materials Advisory Notices (RMANs). Agencies may choose an evaluation factor preference, or other method of indicating preference in accord with their agency needs. Agencies will, as appropriate, eliminate virgin material requirements in contract specifications and replace them with a statement of preference for recycled materials.
(b) Promotion program. USDA agencies will actively promote a preference for recovered materials, environmentally preferable products, and biobased products in contacts with vendors, in written materials, and other appropriate opportunities.
(c) Reasonable estimation of recovered materials used in the performance of contracts. USDA agencies annually will provide in writing to the USDA Senior Procurement Executive, in response to a call for data for the Resource Conservation and Recovery report, reasonable estimates, certification, and verification of recovered material used in the performance of contracts.
(d) Annual review and monitoring of effectiveness of the program. USDA agencies will provide an annual assessment of the effectiveness of their affirmative procurement program actions in increasing the purchase and use of EPA designated products.
(e) Purchase of EPA designated products. USDA agencies will require that 100% of purchases of EPA-designated products contain recovered material, unless the item cannot be acquired –
(1) Competitively within a reasonable time frame;
(2) Meeting appropriate performance standards; or
(3) At a reasonable price.
(f) The 100% purchase requirement of paragraph (e) of this section applies to all USDA agency purchases, including those at or below the micro-purchase threshold.
423.405 Procedures.
(a) The threshold of purchase for EPA designated items is $10,000 per year at the USDA departmental, not individual agency, level. Therefore, the APP requirements above, including the 100% purchase requirement, apply at the individual agency and staff office level.
(b) Contracting officers should refer to EPA’s list of designated products and products identified as recycled content when purchasing supplies or services. Information on EPA designated products is available at: www.epa.gov/cpg/products.htm.
(c) All agencies and USDA Contracting Officers must take necessary actions to carry out the provisions of the USDA APP policy described in this subpart.
Subpart 423.5 – Drug-Free Workplace
423.506 Suspension of payments, termination of contract, and debarment and suspension actions.
(a) The contracting officer may recommend waiver of the determination to suspend payments, to terminate a contract, or to debar or to suspend a contractor.
(b) The recommendation shall be submitted through the HCA to the SPE and shall include a full description of the disruption of USDA operations should the determination not be waived.
(c) The SPE will submit the request for a waiver to the Secretary with a recommendation for action.
Subpart 423.6 – Notice of Radioactive Material
423.601 Requirements.
The HCA shall establish a system of instructions to identify the installation/facility radiation protection officer.
Subpart 423.7 – Contracting for Environmentally Preferable Products and Services
423.703 Policy.
(a) USDA’s Affirmative Procurement Program promotes energy-efficiency, water conservation, and the acquisition of environmentally preferable products and services. In its acquisitions, USDA will support federal “green purchasing” principles in the acquisition of products and services that are environmentally preferable or that are biobased content products and services.
(b) USDA agencies will actively promote this preference for environmentally preferable products and biobased products in contacts with vendors, in written materials, and other appropriate opportunities.
PART 424 – PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 424.1 – Protection of Individual Privacy
424.103 Procedures.
USDA regulations implementing the Privacy Act are found in 7 CFR, subtitle A, part 1, subpart G. Contracting officers shall follow these regulations when responding to requests for information or awarding contracts that will involve the design, development, or operation of a system of records on individuals to accomplish agency functions.
424.104 Contract clauses.
When applicable, the contracting officer shall insert the clause at 452.224-70, Confidentiality of Information, in contracts involving confidential information.
Subpart 424.2 – Freedom of Information Act
424.203 Policy.
USDA regulations implementing the Freedom of Information Act are found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers shall follow these regulations when responding to requests for information.
PART 425 – FOREIGN ACQUISITION
Subpart 425.1 – Buy American Act – Supplies
425.102 [Reserved]
425.103 Exceptions.
(a) The Senior Procurement Executive (SPE) shall make the determination prescribed in FAR 25.103(a).
(b) Copies of determinations of nonavailability in accordance with FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies not listed in FAR 25.104, may be submitted to the SPE for submission to the Civilian Agency Acquisition Council (CAAC).
Information required by FAR 25.104(b) shall be submitted to the SPE for submission to the CAAC.
425.105 Determining reasonableness of cost.
The SPE may make the determination prescribed in FAR 25.105(a). Requests for a determination by the SPE shall be submitted by the HCA, in writing, and shall provide a detailed justification supporting why evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) should be applied to determine whether the offered price of a domestic end product is unreasonable.
425.108 [Reserved]
Subpart 425.2 – Buy American Act – Construction Materials
425.202 Exceptions.
(a) The SPE shall make the determination prescribed in FAR 25.202(a)(1).
(b) If a contracting officer proposes that the use of a particular domestic construction material should be waived for a contract on the grounds that its use would be impracticable, the contracting officer shall submit a proposed determination with supporting information through the HCA to the SPE for approval or disapproval.
425.203-425.204 [Reserved]
Subparts 425.3-425.4 [Reserved]
Subpart 425.6 – Trade Sanctions
425.602 Exceptions.
The Secretary, without power of redelegation, has the authority to make the necessary determination(s) and authorize award(s) of contract(s) in accordance with FAR 25.602(b).
Subpart 425.9 [Reserved]
Subpart 425.10 – Additional Foreign Acquisition Regulations
425.1001 Waiver of right to examination of records.
The SPE shall make the determination under FAR 25.1001(a)(2)(iii).
PART 426 – OTHER SOCIOECONOMIC PROGRAMS
Subpart 426.70 [Reserved]
SUBCHAPTER E – GENERAL CONTRACTING REQUIREMENTS
PART 427 – PATENTS, DATA, AND COPYRIGHTS
Subpart 427.1 – General
427.104 General guidance.
As used in FAR part 27, the agency head or agency head designee is the Senior Procurement Executive, except under FAR 27.306(a) and (b). Under FAR 27.306(a) and (b), the agency head is the Secretary without power of redelegation.
PART 428 – BONDS AND INSURANCE
Subpart 428.1 – Bonds and Other Financial Protections
428.101 Bid guarantees.
428.101-1 Policy on use.
The Senior Procurement Executive may authorize class waivers of the requirement to obtain bid guarantees.
428.106 Administration.
428.106-6 Furnishing information.
Heads of contracting activities (HCA’s) or their designees may furnish certified copies of bonds and the contracts for which they were given as provided by FAR 28.106-6(c). Requesters may be required to pay costs of certification and copying established by the Departmental Fee Schedule for records requests (7 CFR part 1, subpart A, appendix A).
Subpart 428.2 – Sureties and Other Security for Bonds
428.203 Acceptability of individual sureties.
Evidence of possible criminal or fraudulent activities by an individual surety shall be reported to the Office of Inspector General in accordance with Departmental Regulations (1700 series).
428.204 Alternatives in lieu of corporate or individual sureties.
HCA’s shall establish procedures to ensure protection and conveyance of deposited securities of the types listed in FAR 28.204-1 through 28.204-3.
428.204-2 Certified or cashier’s checks, bank drafts, money orders, or currency.
The contracting officer shall insert the provision at 452.228-70, Alternative Forms of Security, in a solicitation if a bond is required.
Subpart 428.3 – Insurance
428.307 Insurance under cost-reimbursement contracts.
428.307-1 Group insurance plans.
Under cost-reimbursement contracts, before buying insurance under a group insurance plan, the contractor shall submit the plan to the contracting officer for review. During review, the contracting officer shall use all sources of information available, such as audits, industry practice, or other sources of information, to determine whether acceptance of the plan submitted would be in the Government’s best interest.
428.310 Contract clause for work on a Government installation.
The contracting officer shall insert the clause at 452.228-71, Insurance Coverage, in solicitations and contracts which include the clause at FAR 52.228-5, Insurance – Work on a Government Installation. If property liability insurance is required, the contracting officer shall use the clause with its Alternate I.
428.370 Government-owned vehicles operated in foreign countries.
USDA is authorized to obtain insurance to cover liability incurred by any of its employees while acting within the scope of their employment and operating a Government-owned vehicle in a foreign country. (7 U.S.C. 2262).
PART 429 [RESERVED]
PART 430 – COST ACCOUNTING STANDARDS ADMINISTRATION
430.070 Definitions.
ACO, as used in this part and in FAR part 30, means administrative contracting officer as described in FAR part 42.
Subpart 430.2 – CAS Program Requirements
430.201 Contract requirements.
430.201-5 Waiver.
The Senior Procurement Executive (SPE), without the authority to further redelegate, is authorized to request the Cost Accounting Standards Board to waive the application of the Cost Accounting Standards (CAS). Contracting officers shall prepare waiver requests in accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition), subsection 9903.201-5, and submit them to the SPE through the head of the contracting activity (HCA).
430.202 Disclosure requirements.
430.202-2 Impracticality of submission.
(a) The Secretary, without the power to delegate, is authorized to determine, in accordance with FAR part 99 (Appendix B), subsection 9903.202-2, that the Disclosure Statement is impractical to secure and to authorize award without obtaining the Disclosure Statement.
(b) The request for this determination is to be prepared in accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is to contain the proposed report to the CASB.
(c) Requests for a determination under paragraph (a) of this section shall be prepared by the contracting officer and submitted through the HCA to the SPE for concurrence and submittal to the Secretary.
430.202-8 Subcontractor Disclosure Statements.
(a) The Secretary, without the power to redelegate, is authorized to determine that the Disclosure Statement for a subcontractor is impractical to secure and to authorize award without obtaining the Disclosure Statement.
(b) Requests for this determination are to be prepared and forwarded as described in 430.202-2.
PART 431 – CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 431.1 – Applicability
431.101 Objectives.
(a) The SPE is designated as the official authorized to give advance approval of an individual deviation concerning cost principles.
(b) The SPE is designated as the official authorized to give advance approval of a class deviation concerning cost principles after coordination with the Civilian Agency Acquisition Council.
(c) Requests for advance approval of class deviations concerning cost principles must be submitted to the SPE through the HCA.
PART 432 – CONTRACT FINANCING
432.001 Definitions.
The agency contract finance office is the office, other than the office of the requisitioner, providing funding or performing funding record keeping for the contract action.
Responsible fiscal authority is that officer in the agency contract finance office with the responsibility to ensure that adequate funds are available and usable for the intended purpose.
432.003 Simplified acquisition procedures financing.
(a) The chief of the contracting office may approve contract financing on a contract to be entered under the simplified acquisition procedures. Class approvals may not be made.
(b) The signed approval must contain the supporting rationale for the action and an estimate of the cost and/or risk to the government.
432.006 Reduction or suspension of contract payments upon finding of fraud.
432.006-2 Definitions.
(a) The USDA remedy coordination official (RCO) is the Assistant Secretary for Administration.
(b) For the purposes of this part, head of the agency means, exclusively, the Secretary or the Deputy Secretary.
432.006-3 Responsibilities.
When a contracting officer suspects that a request for advance, partial, or progress payment is based on fraud, the request shall be referred directly to the Office of Inspector General (OIG) in accordance with their instructions. A copy of the referral shall be submitted through the head of the contracting activity (HCA) to the Senior Procurement Executive (SPE).
432.006-4 Procedures.
(a) Immediately upon submittal of the referral described in 432.006-3, the HCA and the contracting officer shall confer with the SPE and representatives of the OIG to discuss the potential for reduction or suspension of further payments based on the considerations listed in FAR 32.006-4(d) (1) through (5).
(b) The SPE will determine whether the contractor has contracts with other Departments or contracting activities and will involve them, as necessary, in the decision making process.
(c) The OIG will determine the need for and the extent of an investigation.
(d) Immediately upon completion of the OIG investigation (or, if deemed necessary by the OIG and the SPE, before completion of the investigation) the SPE, in coordination with the HCA, the contracting officer, and the OIG, shall make a report on the action to the RCO.
(e) Upon receipt of the report, the RCO will submit a recommendation to the Secretary.
(f) Upon receipt of the RCO’s report the Secretary will:
(1) Notify the contractor in writing, allowing 30 calendar days after receipt of the notice, that the contractor may submit in writing information and arguments in opposition to the recommendation; and
(2) Consider the RCO’s recommendation, the SPE’s report, the response of the contractor, and any other relevant information in order to make an appropriate final determination.
(g) This determination will be provided to the contractor and to the SPE for distribution to the agencies involved and for appropriate action under the determination.
(h) The determination and the supporting documentation will be placed in the contract file(s) and a copy will be maintained by the SPE.
(i) The contracting officer will advise the SPE of the actual date of the reduction or suspension action.
(j) Not later than 150 calendar days after the actual date of the reduction or suspension action, the SPE will prepare for the RCO a review of the agency head’s determination, and will propose a recommendation from the RCO to the agency head as to whether the reduction or suspension action should continue. The RCO will submit the recommendation (including a recommendation for the time period of a follow up review) to the agency head. This recommendation will be considered by the Secretary and handled as a final action described in paragraph (f) of this section.
(k) The contract may not be closed nor final payment made prior to a final determination by the Secretary.
432.006-5 Reporting.
The annual report required by FAR 32.006-5 is to be prepared by the SPE and to be submitted to the Secretary within 90 calendar days after the end of the fiscal year. When signed by the Secretary, the report is to be maintained by the SPE.
432.007 Contract financing payments.
The HCA may prescribe, on a case-by-case basis, a shorter period for financing payments.
Subpart 432.1 – Non-Commercial Item Purchase Financing
432.102 Description of contract financing methods.
Progress payments based on a percentage or stage of completion are authorized for use as a payment method under USDA contracts or subcontracts for construction, alteration or repair, and shipbuilding and conversion. Such payments also are authorized for service contracts, if the contracting officer determines that progress payments based on costs are not practicable and adequate safeguards are provided to administer progress payments based on a percentage or stage of completion. For all other contracts, progress payment provisions shall be based on costs except that the HCA may authorize progress payments based on a percentage or stage of completion on a case-by-case basis. Each authorization by the HCA shall include a determination and finding that progress payments based on costs cannot be employed practically and that there are adequate safeguards provided for the administration of progress payments based on a percentage or stage of completion.
432.103 Progress payments under construction contracts.
(a) When approving a progress payment under a construction contract, the contracting officer shall indicate the amount to be paid by the payment office and include in the contract file the rationale in support of the payment.
(b) When a retainage is made on a progress payment under a construction contract, the contracting officer shall place in the contract file a written determination stating the reason(s) for the retainage.
(c) When a progress payment under a construction contract has been approved, the amount to be paid, the amount of any retainage withheld, and the reason(s) for the retainage shall be provided to the contractor by the contracting officer in writing before the payment due date.
(d) When the contractor, under a fixed-price construction contract, furnishes evidence to the contracting officer that the surety has been paid in full for bond premiums and requests reimbursement, the first subsequent progress payment shall include the total amount attributable to such bond premiums and the Government shall pay that amount in full. This amount paid for the bond premiums is not an amount in addition to the stated contract price.
432.111 Contract clauses for non-commercial purchases.
The contracting officer shall insert the clause at 452.232-70, Reimbursement for Bond Premiums – Fixed Price Construction Contracts, whenever the clause at FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is used in a contract.
432.113 Customary contract financing.
The contracting officer may determine the necessity for customary contract financing. The determination and finding that customary contract financing is needed shall be placed in the contract file.
432.114 Unusual contract financing.
The HCA is authorized to approve unusual contract financing. The signed determination and finding supporting this approval shall be included in the contract file.
Subpart 432.2 – Commercial Item Purchase Financing
432.202 General.
432.202-1 Policy.
In the case of unusual contract financing, the approval by the HCA shall be recorded in a determination and finding and maintained in the contract file.
432.202-4 Security for Government financing.
Prior to determining that an offeror’s financial condition is adequate security, the contracting officer must obtain the concurrence of the funding activity in the proposed determination.
432.206 Solicitation provisions and contract clauses.
The responsibility for administration of the liquidation provisions of a contract may not be transferred from the contracting officer.
432.207 Administration and payment of commercial financing payments.
The responsibility for receiving, reviewing, and approval of contract financing requests may not be transferred from the contracting officer.
Subpart 432.3 – Loan Guarantees for Defense Production
432.301 Definitions.
Within this subpart, the “agency” or “guaranteeing agency” is the “head of the contracting activity” (HCA) and may not be redelegated.
Subpart 432.4 – Advance Payments for Non-Commercial Items
432.402 General.
The HCA is designated as the individual responsible for making the findings and determination, and for approval of the contract terms concerning advance payments.
432.406 Letters of credit.
The HCA is designated as the individual responsible for coordination with the Department of Treasury concerning letters of credit.
432.407 Interest.
(a) The HCA is designated as the individual who may authorize, on a case by case basis, advance payments without interest for the contract types described in FAR 32.407(d)(1), (2), (3), and (4). The signed determination and findings supporting these authorizations shall be included in the contract files.
(b) The SPE is designated as the individual who may authorize advance payments without interest other than those described in paragraph (a) of this section.
432.412 Contract clause.
The decision to use Alternates I or III to clause 52.232-12 must be supported by a determination and finding.
Subpart 432.6 – Contract Debts
432.601 Definition.
Responsible official means the contracting officer.
432.616 Compromise actions.
Compromise of a debt within the proceedings under appeal to the Civilian Board of Contract Appeals is the responsibility of the contracting officer.
Subpart 432.7 – Contract Funding
432.703 Contract funding requirements.
432.703-3 Contracts crossing fiscal years.
Funds appropriated to USDA may be used for one-year contracts which are to be performed in two fiscal years so long as the total amount for such contracts is obligated in the year for which the funds are appropriated (7 U.S.C. 2209c).
432.770 USDA specific funding limitations.
(a) The USDA is authorized to subscribe for newspapers as may be necessary to carry out its authorized work: Provided, that such subscriptions shall not be made unless provision is made therefor in the applicable appropriation and the cost thereof is not in excess of limitations prescribed therein (7 U.S.C. 2258).
(b) The expenditure of any USDA appropriation for any consulting service through any contract, pursuant to section 3109 of Title 5 of the U.S. Code shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law (7 U.S.C. 2225a).
Subpart 432.8 – Assignment of Claims
432.802 Conditions.
Written notices of assignment and a true copy of the assigned instrument are to be sent to the contracting officer rather than the agency head. Other copies are distributed as directed in FAR 32.802.
432.803 Policies.
The HCA may make a determination of need to include a no-setoff commitment in a contract.
432.805 Procedure.
The information described in FAR 32.805 shall be filed with the contracting officer.
432.806 Contract clauses.
The contracting officer may make the determination whether to include the clause at FAR 52.232-23 in any purchase order expected to exceed the micro-purchase threshold.
Subpart 432.9 – Prompt Payment
432.904 Determining payment due dates.
The payment terms for supplies and services on the Procurement List and provided by a Javits-Wagner-O’Day Act participating nonprofit agency are governed by FAR 8.709.
Subpart 432.10 – Performance-Based Payments
432.1007 Administration and payment of performance-based payments.
The responsibility for receiving, reviewing, and approval of performance-based payment requests may not be transferred from the contracting officer.
PART 433 – PROTESTS, DISPUTES AND APPEALS
Subpart 433.1 – Protests
433.102 General.
(a) The Senior Procurement Executive (SPE) is responsible for coordinating the handling of bid protests lodged with the Government Accountability Office (GAO).
(b) The head of the contracting activity (HCA), on a non-delegable basis, may resolve protests and authorize reimbursement of costs in accordance with FAR 33.102(b).
433.103 Protests to the agency.
(a) Actual or prospective bidders or offerors may file protests either with the HCA, as provided by 433.102(b), or with the contracting officer. Protesters who file protests with the HCA shall furnish a complete copy to the contracting officer no later than 1 day after the protest is filed with the HCA.
(b) When a protest is received, the adjudicating official shall take prompt action towards resolution and notify the protester in writing of the action taken. The written final decision shall include a paragraph substantially as follows:
This decision shall be final and conclusive unless a further written notice of protest is filed with the Government Accountability Office in accordance with 4 CFR part 21. Neither the filing of a protest with USDA nor the filing of a protest with the Government Accountability Office affects your right to file an action in a district court of the United States or the United States Court of Federal Claims.
433.104 [Reserved]
Subpart 433.2 – Disputes and Appeals
433.203 Applicability.
The Assistant Secretary for Administration is authorized to determine the applicability of the Contract Disputes Act to contracts with foreign governments pursuant to FAR 33.203.
433.203-70 Civilian Board of Contract Appeals.
The organization, jurisdiction, and functions of the Civilian Board of Contract Appeals, together with its Rules of Procedure, are set out in 48 CFR part 6101.
433.209 Suspected fraudulent claims.
The contracting officer shall refer all matters related to suspected fraudulent claims by a contractor under the conditions in FAR 33.209 to the Office of Inspector General for additional action or investigation.
SUBCHAPTER F – SPECIAL CATEGORIES OF CONTRACTING
PART 434 – MAJOR SYSTEM ACQUISITION
Subpart 434.0 – General
434.001 Definitions.
Pursuant to OMB Circular No. A-109 (A-109) and the definition at FAR 2.101, within USDA, a system shall be considered a major system if:
(a) The total acquisition costs (for information technology, life cycle costs) are estimated to be $50 million or more, or
(b) The system, regardless of estimated acquisition or life cycle costs, has been specifically designated to be a major system by the USDA Acquisition Executive or by the Major Information Technology Systems Executive.
434.002 Policy.
In addition to the policy guidance at FAR 34.002 and other parts of the FAR, the policies outlined in paragraph 6 of A-109 should serve as guidelines for all contracting activities in planning and developing systems, major or otherwise.
434.003 Responsibilities.
(a) The Secretary of Agriculture or other designated USDA key executive is responsible for making four key decisions in each major system acquisition process. These are listed in paragraph 9 of A-109 and elaborated on in paragraphs 10 through 13. The key executives of USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant Secretaries) individually or as a group will participate in this decision making process.
(b) The Chief Information Officer (CIO) is the Major Information Technology Systems Executive. For acquisitions of information technology, the CIO will ensure that A-109 is implemented in USDA and that the management objectives of the Circular are realized. The CIO is responsible for designating the program manager for each major information technology system acquisition, designating an acquisition to be a major information technology system acquisition, and approving the written charter and project control system for each major information technology system acquisition.
(c) The Assistant Secretary for Administration (ASA) is the USDA Acquisition Executive for major system acquisitions other than acquisitions of information technology. The ASA will ensure that A-109 is implemented in USDA and that the management objectives of the Circular are realized. The ASA is responsible for designating the program manager for each major system acquisition, designating an acquisition to be a major system acquisition, and approving the written charter and project control system for each major system acquisition.
(d) Heads of contracting activities must:
(1) Ensure compliance with the requirements of A-109, FAR Part 34 and AGAR Part 434.
(2) Ensure that potential major system acquisitions are brought to the attention of the USDA Acquisition Executive or the Major Information Technology Systems Executive, as appropriate.
(3) Recommend qualified candidates for designation as program managers for each major system acquisition within their jurisdiction.
(4) Ensure that program managers fulfill their responsibilities and discharge their duties.
(5) Cooperate with the ASA and Major Information.
Technology Systems Executive in implementing the requirements of A-109.
(e) The program manager is responsible for planning and executing the major system acquisition, ensuring appropriate coordination with the USDA Acquisition Executive and Major Information Technology Systems Executive and other key USDA executives.
434.004 Acquisition strategy.
(a) The program manager will develop, in coordination with the Acquisition Executive or Major Information Technology Systems Executive, a written charter outlining the authority, responsibility, accountability, and budget for accomplishing the proposed objective.
(b) The program manager will develop, subject to the approval of the Acquisition Executive or Major Information Technology Systems Executive, a project control system to schedule, monitor, and regularly report on all aspects of the project. The control system shall establish reporting periods and milestones consistent with the key decisions listed in paragraph 9 of A-109.
(c) Upon initiation of the project, the program manager will report regularly to the Acquisition Executive or Major Information Technology Systems Executive.
(d) Specific procedures and requirements for information technology systems are included in the USDA Information Technology Capital Planning and Investment Control Guide which can be accessed on the USDA OCIO Web site at http://www.ocio.usda.gov.
434.005 General requirements.
434.005-6 Full production.
The Secretary or the USDA key executive designated by the Secretary for the specific program is the agency head for the purposes of FAR 34.005-6.
PART 435 – RESEARCH AND DEVELOPMENT CONTRACTING
435.010 Scientific and technical reports.
Research and development contracts shall contain a provision requiring that the contractor send copies of all scientific and technical reports to the National Technical Information Service at the address indicated in FAR 35.010(b). The release of research and development contract results to other government activities and to the private sector is subject to the provisions of FAR subpart 4.4.
PART 436 – CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 436.2 – Special Aspects of Contracting for Construction
436.201 Evaluation of contractor performance.
Preparation of performance evaluation reports. In addition to the requirements of FAR 36.201, performance evaluation reports shall be prepared for indefinite-delivery type contracts when either the contract maximum or the contracting activity’s reasonable estimate of services to be ordered exceeds $500,000.00. For these contracts, performance evaluation reports shall be prepared for each order at the time of final acceptance of the work under the order.
436.203 Government estimate of construction costs.
For acquisitions using sealed bid procedures, the contracting officer may disclose the overall amount of the Government’s estimate of construction costs following identification of the responsive bid most advantageous to the Government; verification of that bid’s price reasonableness; and verification of the bidder’s responsibility. For acquisitions using other than sealed bid procedures (e.g., negotiation), the contracting officer may disclose the overall amount of the estimate after contract award.
436.204 Disclosure of the magnitude of construction projects.
In the case of indefinite-delivery type contracts, the reasonable estimate of work to be done or the maximum in the solicitation, both including all options, is to be used to select the price range. Contracting officers may elect to use both a price range for the base period of services and the total, inclusive of options, to best describe the magnitude of the solicitation.
436.205 Statutory cost limitations.
(a) When it appears that funds available for a project may be insufficient for all the desired features of construction, the contracting officer may provide in the solicitation for a base bid item covering the work generally as specified and for one or more additive or deductive bid items which progressively add or omit specified features of the work in a stated order of priority. In this case, the contracting officer shall insert the provision at 452.236-70, Additive or Deductive Items, in solicitations for construction.
(b) In the alternative to the process in paragraph (a) of this section, the contracting officer may use the policies and procedures found in FAR 17.2.
436.209 Construction contracts with architect-engineer firms.
The head of the contracting activity (HCA) is authorized to approve the award of a contract to construct a project, in whole or in part, to the firm (inclusive of its subsidiaries or affiliates) that designed the project.
436.213 Special procedures for sealed bidding in construction contracting.
436.213-2 Presolicitation notices.
The authority to waive a presolicitation notice is restricted to the HCA.
Subpart 436.3 [Reserved]
Subpart 436.5 – Contract Clauses
436.500 Scope of subpart.
This subpart prescribes clauses for insertion in USDA solicitations and contracts for construction and for dismantling, demolition, or removal of improvements or structures. The contracting officer shall use the clauses as prescribed, in contracts that exceed the simplified acquisition threshold. The contracting officer may use the clauses if the contract amount is expected to be within the simplified acquisition threshold.
436.571 Prohibition against the use of lead-based paint.
The contracting officer shall insert the clause at 452.236-71, Prohibition Against the Use of Lead-Based Paint, in solicitations and contracts, if the work involves construction or rehabilitation (including dismantling, demolition, or removal) of residential structures. This clause may be used in contracts for other than residential structures.
436.572 Use of premises.
The contracting officer shall insert the clause at 452.236-72, Use of Premises, if the contractor will be permitted to use land or premises administered by USDA.
436.573 Archeological or historic sites.
The contracting officer shall insert the clause at 452.236-73, Archeological or Historic Sites, if the contractor will be working in an area where such sites may be found. Use of the clause is optional in service contracts for on-the-ground work, e.g., reforestation, silvicultural, land stabilization, or other agricultural-related projects.
436.574 Control of erosion, sedimentation, and pollution.
The contracting officer shall insert the clause at 452.236-74, Control of Erosion, Sedimentation and Pollution, if there is a need for applying environmental controls in the performance of work. Use of the clause is optional in service contracts for on-the-ground e.g., reforestation, silvicultural, land stabilization, or other agricultural-related projects.
436.575 Maximum workweek-construction schedule.
The contracting officer shall insert the clause at 452.236-75, Maximum Workweek-Construction Schedule, if the clause at FAR 52.236-15 is used and the contractor’s work schedule is restricted by access to the facility or must be coordinated with the schedule of contract administration personnel.
436.576 Samples and certificates.
The contracting officer shall insert the clause at 452.236-76, Samples and Certificates, in all contracts.
436.577 Emergency response.
The contracting officer may insert the clause at 452.236-77, Emergency Response, in construction contracts awarded for the Forest Service.
436.578 Contract clause.
Insert the clause at 452.236-78, Fire Suppression and Liability in solicitations and contracts for Integrated Resource Service Contracts (IRSC) awarded for the Forest Service.
436.579 Opted timber sale road requirements.
The contracting officer shall insert the clause at 452.236-79, Opted Timber Sale Road Requirements, in road construction contracts resulting from a timber sale turnback.
Subpart 436.6 – Architect-Engineer Service
436.601 Policy.
436.601-3 Applicable contracting procedures.
The technical official’s listing of areas where recovered materials cannot be used shall be referred to the contracting activity’s official designated in accordance with FAR 23.404. A copy of the listing and of any approval or disapproval by that official is to be retained in the solicitation file.
436.602 Selection of firms for architect-engineer contracts.
436.602-1 Selection criteria.
The HCA is authorized to approve the use of design competition under the conditions in FAR 36.602-1(b).
436.602-2 Evaluation boards.
HCA’s shall establish written procedures for providing permanent or ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-2. The procedures may provide for the appointment of private practitioners of architecture, engineering, or related professions when such action is determined by the HCA to be essential to meet the Government’s minimum needs.
436.602-3 Evaluation board functions.
The selection report required in FAR 36.602-3(d) shall be prepared for the approval of the HCA. The HCA may authorize an acquisition official above the level of the contracting officer to execute the required approval.
(a) The HCA shall serve as the selection authority in accordance with FAR 36.602-4. The HCA may authorize an acquisition official above the level of the contracting officer to serve as the selection authority.
(b) A copy of the final selection, inclusive of the supporting documents, shall be provided to the contracting officer and maintained in the solicitation file.
436.602-5 Short selection process for contracts not to exceed the simplified acquisition threshold.
The HCA may include either or both procedures in FAR 36.602-5 in the procedures for evaluation boards.
436.603 Collecting data on and appraising firms’ qualifications.
(a) HCA’s which require architect-engineer services shall establish procedures to comply with the requirements of FAR 36.603.
(b) The procedures shall include a list of names, addresses, and phone numbers of offices or boards assigned to maintain architect-engineer qualification data files. The list shall be updated annually.
436.604 Performance evaluation.
Preparation of performance evaluation reports. (a) In addition to the requirements of FAR 36.604, performance evaluation reports shall be prepared for indefinite-delivery type contracts when either the contract maximum or the contracting activities reasonable estimate of services to be ordered exceeds $25,000.00. For these contracts, performance evaluation reports shall be prepared for each order at the time of final acceptance of the work under the order.
(b) The contracting officer may require a performance evaluation report on the work done by the architect-engineer after the completion of or during the construction of the designed project.
436.605 Government cost estimate for architect-engineer work.
The contracting officer may release the Government’s total cost estimate in accordance with FAR 36.605(b).
436.609 Contract clauses.
436.609-1 Design within funding limitations.
(a) Should the head of the contracting activity appoint a designee to make the determination in FAR 36.609-1(c)(1), the appointment may be to one no lower than the official authorized to commit program funds for the work being acquired.
(b) The contracting officer, with the advice of appropriate technical representatives, may make the determination in FAR 36.609-1(c)(2) or (3).
(c) A copy of the determinations described in paragraph (b) and (c) of this section shall be maintained in the contract file.
436.670 Firms ineligible for award – construction.
The contracting officer shall insert the clause at 452.236-80, Firms Ineligible For Award – Construction, in the contract for architect-engineering services except as provided in FAR 36.209 and AGAR 436.209.
PART 437 – SERVICE CONTRACTING
Subpart 437.1 – Service Contracts – General
437.104 Personal services contracts.
USDA has the following specific statutory authorities to contract for personal services:
(a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) authorizes contracting with persons or organizations on a temporary basis, without regard to civil service compensation classification standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, Provided:
(1) That no expenditures shall be made unless specifically provided for in the applicable appropriation, and
(2) Expenditures do not exceed any limitations prescribed in the appropriation.
(b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to contract with technically qualified persons, firms or organizations to perform research, inspection, classification, technical, or other special services, without regard to the civil-service laws, Provided: it is for a temporary basis and for a term not to exceed six months in any fiscal year.
437.110 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert a clause substantially the same as the clause at 452.237-70, Loss Damage, Destruction or Repair, in contracts for equipment rental, whether the equipment is furnished with or without operator.
(b) The contracting officer shall insert a provision substantially the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, in all solicitations if a conference with prospective offerors will be held prior to the submittal of bids or proposals.
(c) The contracting officer shall insert the provision at 452.237-73, Equipment Inspection visit, in solicitations if work is to be done on Government equipment and an offeror’s inspection is encouraged for an understanding of the work to be performed prior to submittal of bids or proposals.
(d) The contracting officer shall insert a clause substantially the same as the clause at 452.237-74, Key Personnel, in contracts if contract performance requires identification of the contractor’s key personnel.
(e) The contracting officer shall insert a clause substantially the same as the clause at 452.237-75, Restrictions Against Disclosure, in service contracts (including architect-engineer contracts) requiring restrictions on release of information developed or obtained in connection with performance of the contract.
Subpart 437.2 – Advisory and Assistance Services
437.203 Policy.
Contracting for advisory and assistance services is subject to the policy and procedures in Departmental Regulations (5000 series).
437.204 Guidelines for determining availability of personnel.
The head of the contracting activity (HCA) is authorized to approve the use of non-Government evaluators in proposal evaluation. Each such decision shall be supported by a written determination in accordance with FAR 37.204.
437.270 Solicitation and contract clauses.
(a) The contracting officer shall insert a clause substantially the same as the clause at 452.237-76, Progress Reporting, in all contracts for advisory and assistance services. It may also be used in other service contracts.
(b) The contracting officer shall insert a clause substantially the same as the clause at 452.237-78, Contracts with Consulting Firms for Services, in solicitations and contracts for consulting services which prohibit follow-on contracts with the contracting firm.
PART 438 [RESERVED]
PART 439 – ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 439.1 – General
439.101 Policy.
(a) In addition to policy and regulatory guidance contained in the FAR and AGAR:
(1) The USDA Information Technology Capital Planning and Investment Control Guide (CPIC) establishes requirements for the acquisition of information technology.
(2) Specific thresholds at which USDA Office of the Chief Information Officer Information Technology Acquisition Approval is required have been established.
(3) The procurement authority delegated to USDA Agencies is established in Departmental Regulations 5000 series.
(4) The CPIC Guide and USDA CIO policy and procedural guidance are available on the USDA OCIO Web site at http://www.ocio.usda.gov. Notices of changes in the Information Technology Acquisition Approval Thresholds are also promulgated by AGAR Advisory.
(b) Acquisition of on-line courseware libraries and learning management system services requires specific approval of the ASA and CIO. Information regarding the specific approval requirements and processes is promulgated by AGAR Advisory.
PART 440 [RESERVED]
PART 441 – ACQUISITION OF UTILITY SERVICES
Subpart 441.2 – Acquiring Utility Services
441.201 Policy.
As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency head designee is the head of the contracting activity.
SUBCHAPTER G – CONTRACT MANAGEMENT
PART 442 – CONTRACT ADMINISTRATION
Subpart 442.1 – Interagency Contract Administration and Audit Services
442.102 Procedures.
(a) The Office of Inspector General (OIG), Audit Division, has established a cross-servicing arrangement with the Defense Contract Audit Agency (DCAA) to provide contract audit services required by the FAR.
(b) All contract audit services required by contracting officers, except those which can be accomplished in-house, shall be coordinated through the cognizant OIG Regional Inspector General – Auditing (RIG-A). Cognizance is determined on the basis of the contractor’s location. There is no charge for DCAA audit services coordinated through OIG.
(c) In order to ensure compliance with this requirement and to evaluate the results of audits, contracting officers shall forward to the RIG-A copies of all price negotiation memoranda prepared for contracts and contract modifications in excess of $500,000.
Subpart 442.15 – Contractor Performance Information
442.1502 Policy.
The Contractor Performance System (CPS), developed by the National Institutes of Health, is designated as the single USDA-wide system for maintaining contractor performance/evaluation information. Use of the CPS is mandatory. As a minimum, the CPS shall be accessed for contractor past performance information as part of proposal evaluation in accordance with FAR subpart 15.3, and information resulting from the evaluation of contractor performance in accordance with FAR subpart 42.15 shall be entered into and maintained in this system. The CPS is a part of the USDA Acquisition Toolkit which can be accessed from the USDA Procurement Homepage at http://www.usda.gov/procurement/.
PARTS 443-444 [RESERVED]
PART 445 – GOVERNMENT PROPERTY
Subpart 445.3 – Providing Government Property to Contractors
445.302 Providing facilities.
445.302-1 Policy.
Heads of contracting activities (HCA’s) are authorized to make determinations for providing facilities to a contractor as prescribed in FAR 45.302-1(a)(4).
Subpart 445.4 – Contractor Use and Rental of Government Property
445.403 Rental – Use and Charges clause.
HCA’s are authorized to make determinations for charging rent on the basis of use under the Use and Charges clause in FAR 52.245-9 as prescribed in FAR 45.403(a).
445.407 Non-Government use of plant equipment.
Requests for non-Government use of plant equipment as prescribed in FAR 45.407 shall be submitted by the HCA to the Senior Procurement Executive (SPE) for approval.
Subpart 445.6 [Reserved]
PART 446 – QUALITY ASSURANCE
Subpart 446.3 – Contract Clauses
446.370 Inspection and acceptance.
The Contracting Officer shall insert the clause at 452.246-70, Inspection and Acceptance, in contracts where inspection and acceptance will be performed at the same location. The clause with its Alternate I is for use when inspection and acceptance will be performed at different locations.
PART 447 – TRANSPORTATION
Subpart 447.3 – Transportation in Supply Contracts
447.302 Place of delivery – F.O.B. point.
The contracting officer shall insert a clause substantially the same as the clause at 452.247-70, Delivery Location, in supply contracts when it is necessary to specify delivery locations. If appropriate, the clause may reference an attachment which lists various delivery locations and other delivery details (e.g., quantities to be delivered to each location, etc.).
447.305 Solicitation provisions, contract clauses, and transportation factors.
447.305-10 Packing, marking, and consignment instructions.
(a) The contracting officer shall insert a clause substantially the same as the clause at 452.247-71, Marking Deliverables, in solicitations and contracts if special marking on deliverables (other than reports) are required.
(b) The contracting officer shall insert the clause at 452.247-72, Packing for Domestic Shipment, in contracts when item(s) will be delivered for immediate use to a destination in the continental United States; when the material specification or purchase description does not provide preservation, packaging, packing, and/or marking requirements; and/or when the requiring activity has not cited a specific specification for packaging.
(c) The contracting officer shall insert the clause at 452.247-73, Packing for Overseas Shipment, in contracts when item(s) will be delivered to an overseas destination for immediate use, the material specification does not specify packing levels, and the required activity has not specified such requirements.
PART 448 [RESERVED]
PART 449 – TERMINATION OF CONTRACTS
Subpart 449.1 – General Principles
449.106 Fraud or other criminal conduct.
(a) If the contracting officer suspects fraud or other criminal conduct a written report documenting the facts shall be submitted by the head of the contracting activity (HCA) to the Office of Inspector General. Copies of documents or other information connected with the suspected fraud or criminal conduct shall be provided with the report. Concurrently, a copy of the report shall also be submitted to the Senior Procurement Executive.
(b) Depending on the findings of the Office of Inspector General, the HCA may initiate suspension or debarment action as prescribed in FAR part 9.4 and part 409.4.
449.111 Review of proposed settlements.
Proposed settlement agreements shall be reviewed and approved in accordance with contracting activity procedures.
Subpart 449.4 – Termination for Default
449.402 Termination of fixed-price contracts for default.
449.402-3 Procedure for default.
In addition to the requirements of FAR 49.402-3(g), the notice of termination shall contain instructions regarding the disposition of any Government property in the possession of the contractor (see FAR 45.508-1) and, in the case of construction contracts, such materials, appliances, and structures as may be on the site of the construction work. The notice shall also contain a statement concerning the liability of the contractor or its surety for any liquidated damages (see FAR 49.402-7).
Subpart 449.5 – Contract Termination Clauses
449.501 General.
Use of special purpose termination clauses pursuant to the authority of FAR 49.501 shall be approved in advance by the HCA.
PART 450 – EXTRAORDINARY CONTRACTUAL ACTIONS
450.001 Definitions.
Approving authority, as used in this part, means the Assistant Secretary for Administration.
Secretarial level, as used in this part means the Assistant Secretary for Administration.
Subpart 450.1 [Reserved]
Subpart 450.2 – Delegation of and Limitations on Exercise of Authority
The Assistant Secretary for Administration is authorized to approve all actions under FAR part 50 except indemnification actions listed in FAR 50.201(d) which must be approved by the Secretary, without power of delegation.
Subpart 450.3 – Contract Adjustments
450.303 Contract adjustment.
450.303-1 Contractor requests.
Contractor requests shall be submitted to the contracting officer.
PART 451 [RESERVED]
SUBCHAPTER H – CLAUSES AND FORMS
PART 452 – SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 452.2 – Texts of Provisions and Clauses
452.204-70 Inquiries.
As prescribed in 404.7001, insert the following provision:
Inquiries and all correspondence concerning this solicitation should be submitted in writing to the Contracting Officer. Offerors should contact only the Contracting Officer issuing the solicitation about any aspect of this requirement prior to contract award.
452.211-70 Brand Name or Equal.
As prescribed in 411.171, insert the following provision:
(As used in this provision, the term “brand name” includes identification of products by make and model.)
(a) If items called for by this solicitation have been identified by a “brand name or equal” description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Offers of “equal” products (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the offer (see clause 452.211-71) and are determined by the Contracting Officer to meet fully the salient characteristics requirements listed in the solicitation.
(b) Unless the offeror clearly indicates in its offer that it is offering an “equal” product, the offeror shall be considered as offering the brand name product(s) referenced in the solicitation.
(c)(1) If the offeror proposes to furnish an “equal” product or products, the brand name(s), if any, and any other required information about the product(s) to be furnished shall be inserted in the space provided in the solicitation. The evaluation of offers and the determination as to the equality of the product(s) offered shall be the responsibility of the Government and will be based on information furnished by the offeror or identified in its offer as well as other information reasonably available to the contracting activity. Caution to offerors: The contracting activity is not responsible for locating or securing any information which is not identified in the offer and is not reasonably available to the contracting activity. Accordingly, to assure that sufficient information is available, the offeror must furnish as a part of its offer all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the contracting activity to (i) determine whether the product offered meets the salient characteristics requirement of the solicitation, and (ii) establish exactly what the offeror proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may include specific reference to information previously furnished or to information otherwise available to the contracting activity.
(2) If an offeror proposes to modify a product so as to make it conform to the requirements of the solicitation, the offer shall include (i) a clear description of such proposed modifications and (ii) clearly marked descriptive material to show the proposed modifications.
452.211-71 Equal Products Offered.
As prescribed in 411.171, insert the following or substantially the same clause in solicitations seeking offers on a “brand name or equal” basis to allow offerors the opportunity to clearly identify the “equal” item being offered, and to illustrate how that item meets the salient characteristics requirements of the Government.
(a) Offerors proposing to furnish an “equal” product, in accordance with the “Brand Name or Equal” provision of this solicitation, shall provide the following information for each offered “equal” product:
(b) Offerors are responsible for submitting all additional information on the above product necessary for the Contracting Officer to determine whether the product offered meets the “brand name or equal” product’s salient characteristics listed in the solicitation.
452.211-72 Statement of Work/Specifications.
As prescribed in 411.171, insert the following clause:
The Contractor shall furnish the necessary personnel, material, equipment, services and facilities (except as otherwise specified), to perform the Statement of Work/Specifications referenced in Section J.
452.211-73 Attachments to Statement of Work/Specifications.
As prescribed in 411.171, insert the following clause:
The attachments to the Statement of Work/Specifications listed in Section J are hereby made part of this solicitation and any resultant contract.
452.211-74 Period of Performance.
As prescribed in 411.404(a), insert the following clause:
The period of performance of this contract is from ___ through ___.*
* Contracting Officer shall insert the appropriate dates.
452.211-75 Effective Period of the Contract.
As prescribed in 411.404(b), insert the following clause:
The effective period of this contract is from ___ through ___.*
* Contracting Officer shall insert the appropriate dates.
452.214-70 Award by Lot.
As prescribed in 414.201-6, insert a provision substantially as follows:
Subject to the Section L provision FAR 52.214-10, “Contract Award – Sealed Bidding,” award will generally be made to a single bidder on each entire lot. However, the Government reserves the right to award by item within any lot when the contracting officer determines that it is advantageous to the Government.
452.215-71 Instructions for the Preparation of Technical and Business Proposals.
As prescribed in 415.209(a), insert a provision substantially as follows:
(a) General Instructions. Proposals submitted in response to this solicitation shall be furnished in the following format with the numbers of copies as specified below.
(1) The proposal must include a technical proposal and business proposal. Each of the parts shall be separate and complete so that evaluation of one may be accomplished independently from evaluation of the other. The technical proposal must not contain reference to cost; however, resource information (such as data concerning labor hours and categories, materials, subcontracts, etc.) must be contained in the technical proposal so that the contractor’s understanding of the statement of work may be evaluated.
(2) Offerors may, at their discretion, submit alternate proposals or proposals which deviate from the requirement; provided, that an offeror also submit a proposal for performance of the work as specified in the statement of work. Any “alternate” proposal may be considered if overall performance would be improved or not compromised, and if it is in the best interest of the Government. Alternate proposals, or deviations from any requirement of this RFP, must be clearly identified.
(3) The Government will evaluate proposals in accordance with the evaluation criteria set forth in Section M of this RFP.
(4) Offerors shall submit their proposal(s) in the following format and the quantities specified:
(a) ___* copies of the completed, signed offer (Sections A through K of the solicitation package)
(b) ___* copies of the technical proposal
(c) ___* copies of the business/cost proposal
(b) Technical Proposal Instructions. The technical proposal will be used to make an evaluation and arrive at a determination as to whether the proposal will meet the requirements of the Government. Therefore, the technical proposal must present sufficient information to reflect a thorough understanding of the requirements and a detailed, description of the techniques, procedures and program for achieving the objectives of the specifications/statement of work. Proposals which merely paraphrase the requirements of the Government’s specifications/ statement of work, or use such phrases as “will comply” or “standard techniques will be employed” will be considered unacceptable and will not be considered further. As a minimum, the proposal must clearly provide the following:
(Contracting Officer shall identify in this section the minimum information required to evaluate each technical evaluation factor listed in Section M.)
(c) Business Proposal Instructions.
(1) Cost Proposal.
In addition to any other requirements for cost/pricing information required in clause FAR 52.215-20, Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data (OCT 1997), the following is required:
(Contracting Officer shall identify additional information required if appropriate.)
(2) Business Proposal.
(a) Furnish financial statements for the last two years, including an interim statement for the current year, unless previously provided to the office issuing the RFP, in which case a statement as to when and where this information was provided may be furnished instead.
(b) Specify the financial capacity, working capital and other resources available to perform the contract without assistance from any outside source.
(c) Provide the name, location, and intercompany pricing policy for other divisions, subsidiaries, parent company, or affiliated companies that will perform work or furnish materials under this contract.
*Contracting officer shall insert number of copies required.
452.215-72 Amendments to Proposals.
As prescribed in 415.209(b), insert the following provision:
Any changes to a proposal made by the offeror after its initial submittal shall be accomplished by replacement pages. Changes from the original page shall be indicated on the outside margin by vertical lines adjacent to the change. The offeror shall include the date of the amendment on the lower right corner of the changed pages.
452.215-73 Post Award Conference.
As prescribed in 415.570, insert a clause substantially as follows:
A post award conference with the successful offeror is required. It will be scheduled within ___* days after the date of contract award. The conference will be held at: ___*.
* Contracting officer to insert number of days and location.
452.216-70 Award Fee.
As prescribed in 416.405, insert a clause substantially as follows:
The amount of award fee the Contractor earns, if any, is based on a subjective evaluation by the Government of the quality of the Contractor’s performance in accordance with the award fee plan. The Government will determine the amount of award fee every ___* months beginning with ___*. The Fee Determination Official (FDO) will unilaterally determine the amount of award fee. The FDO’s determination will be in writing to the Contractor and is not subject to the “Disputes” clause. The Government may unilaterally change the award fee plan at any time and will provide such changes in writing to the Contractor prior to the beginning of the applicable evaluation period. The Contractor may submit a voucher for the earned award fee. Available award fee not earned during one period does not carry over to subsequent periods.
* Contracting Officer shall insert appropriate number of months.
** Contracting Officer shall insert appropriate date.
452.216-71 Base Fee and Award Fee Proposal.
As prescribed in 416.470, insert the following provision:
For the purpose of this solicitation, offerors shall propose a base fee of ___* percent of the total estimated cost proposed. The award fee shall not exceed ___* percent of the total estimated cost.
* Contracting Officer shall insert appropriate percentages.
452.216-72 Evaluation Quantities – Indefinite-Delivery Contract.
As prescribed in 416.506(a), insert a provision substantially as follows:
To evaluate offers for award purposes, the Government will apply the offeror’s proposed fixed-prices/rates to the estimated quantities included in the solicitation, and will add other direct costs if applicable.
452.216-73 Minimum and Maximum Contract Amounts.
As prescribed in 416.506(b), insert the following clause:
During the period specified in FAR clause 52.216-18, ORDERING, the Government shall place orders totaling a minimum of ___*, but not in excess of ___*.
* Contracting Officer shall insert appropriate quantity or dollar amounts.
452.216-74 Ceiling Price.
As prescribed in 416.670, insert the following clause:
The ceiling price of this contract is $___*. The Contractor shall not make expenditures or incur obligations in the performance of this contract which exceed the ceiling price specified herein, except at the Contractor’s own risk.
*Contracting Officer shall insert appropriate dollar amount.
452.216-75 Letter Contract.
As prescribed in 416.603-4, insert the following clause:
This contract replaces letter contract No. ___* dated ___* and all amendments thereto.
* Contracting Officer shall insert number and date.
452.219-70 Size Standard and NAICS Code Information.
As prescribed in 419.508, insert the following provision:
The North American Industrial Classification System Code(s) and business size standard(s) describing the products and/or services to be acquired under this solicitation are listed below:
* Contracting Officer shall insert the appropriate data for each contract line item in the solicitation. The data entry line may be duplicated as required to describe all of the contract line items or sub-items.
452.224-70 Confidentiality of Information.
As prescribed in 424.104, insert a clause substantially as follows:
(a) Confidential information, as used in this clause, means –
(1) information or data of a personal nature, proprietary about an individual, or (2) information or data submitted by or pertaining to an organization.
(b) In addition to the types of confidential information described in (a)(1) and (2) above, information which might require special consideration with regard to the timing of its disclosure may derive from studies or research, during which public disclosure of primarily invalidated findings could create an erroneous conclusion which might threaten public health or safety if acted upon.
(c) The Contracting Officer and the Contractor may, by mutual consent, identify elsewhere in this contract specific information and/or categories of information which the Government will furnish to the Contractor or that the Contractor is expected to generate which is confidential. Similarly, the Contracting Officer and the Contractor may, by mutual consent, identify such confidential information from time to time during the performance of the contract. Failure to agree will be settled pursuant to the “Disputes” clause.
(d) If it is established that information to be utilized under this contract is subject to the Privacy Act, the Contractor will follow the rules and procedures of disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies, with respect to systems of records determined to be subject to the Privacy Act.
(e) Confidential information, as defined in (a)(1) and (2) above, shall not be disclosed without the prior written consent of the individual, institution or organization.
(f) Written advance notice of at least 45 days will be provided to the Contracting Officer of the Contractor’s intent to release findings of studies or research, which have the possibility of adverse effects on the public or the Federal agency, as described in (b) above. If the Contracting Officer does not pose any objections in writing within the 45 day period, the Contractor may proceed with disclosure. Disagreements not resolved by the Contractor and Contracting Officer will be settled pursuant to the “Disputes” clause.
(g) Whenever the Contractor is uncertain with regard to the proper handling of material under the contract, or if the material in question is subject to the Privacy Act or is confidential information subject to the provisions of this clause, the Contractor shall obtain a written determination from the Contracting Officer prior to any release, disclosure, dissemination, or publication.
(h) The provisions of paragraph (e) of this clause shall not apply when the information is subject to conflicting or overlapping provisions in other Federal, State or local laws.
452.226-70–452.226-72 [Reserved]
452.228-70 Alternative Forms of Security.
As prescribed in 428.204-2, insert the following provision:
If furnished as security, money orders, drafts, cashiers checks, or certified checks shall be drawn payable to: ___*.
* Contracting Officer shall insert the name of the USDA contracting activity.
452.228-71 Insurance Coverage.
As prescribed in 428.310, insert the following clause:
Pursuant to FAR clause 52.228-5, Insurance-Work on a Government Installation, the Contractor will be required to present evidence to show, as a minimum, the amounts of insurance coverage indicated below:
(a) Workers Compensation and Employer’s Liability. The Contractor is required to comply with applicable Federal and State workers’ compensation and occupational disease statutes. If occupational diseases are not compensable under those statutes, they shall be covered under the employer’s liability section of the insurance policy, except when contract operations are so commingled with a Contractor’s commercial operations that it would not be practical to require this coverage. Employer’s liability coverage of at least $100,000 shall be required, except in States with exclusive or monopolistic funds that do not permit worker’s compensation to be written by private carriers.
(b) General Liability. The Contractor shall have bodily injury liability insurance coverage written on a comprehensive form of policy of at least $500,000 per occurrence.
(c) Automobile Liability. The Contractor shall have automobile liability insurance written on a comprehensive form of policy. The policy shall provide for bodily injury and property damage liability covering the operation of all automobiles used in connection with performing the contract. Policies covering automobiles operated in the United States shall provide coverage of at least $200,000 per person and $500,000 per occurrence for bodily injury and $20,000 per occurrence for property damage or loss.
(d) Aircraft Public and Passenger Liability. When aircraft are used in connection with performing the contract, the Contractor shall have aircraft public and passenger liability insurance. Coverage shall be at least $200,000 per person and $500,000 per occurrence for bodily injury, other than passenger injury. Coverage for passenger injury shall be at least $200,000 multiplied by the number of seats or passengers, whichever is greater.
Alternate I (NOV 1996). As prescribed in 428.310, substitute the following paragraph (b), when additionally the contractor must have property damage liability coverage:
(b) General Liability. (1) The Contractor shall have bodily injury liability coverage written on a comprehensive form of policy of at least $500,000 per occurrence.
(2) The Contractor shall have property damage liability insurance shall be required in the amount of ___* per occurrence.
* Contracting Officer shall insert amount required.
452.232-70 Reimbursement for Bond Premiums – Fixed-Price Construction Contracts.
As prescribed in 432.111, insert the following clause:
The Contract Price includes the total amount for premiums that the Contractor attributes to the furnishing of performance and payment bonds required by the contract. Reimbursement for bond premiums under the clause at FAR 52.232-5, Payments Under Fixed-Price Construction, shall not cover any amount therefor not included in the contract price.
452.236-70 Additive or Deductive Items.
As prescribed in 436.205, insert the following provision:
The low bidder for purposes of award shall be the conforming responsible bidder offering the low aggregate amount for the first or base bid item, plus or minus (in the order of priority listed in the schedule) those additive or deductive bid items providing the most features of the work within the funds determined by the government to be available before bids are opened. If addition of another bid item in the listed order of priority would make the award exceed such funds for all bidders, it shall be skipped and the next subsequent additive bid item in a lower amount shall be added if award therein can be made within such funds. For example, when the amount available is $100,000 and a bidder’s base bid and four successive additives are $85,000, $10,000, $8,000, $6,000, and $4,000, the aggregate amount of the bid for purposes of award would be $99,000 for the base bid plus the first and fourth additives, the second and third additives being skipped because of each of them would cause the aggregate bid to exceed $100,000. In any case all bids shall be evaluated on the basis of the same additive or deductive bid items, determined as above provided. The listed order of priority need be followed only for determining the low bidder. After determination of the low bidder as stated, award in the best interests of the Government may be made on the selected first or base bid item and any combination of additive or deductive items for which funds are determined to be available at the time of the award, provided that award on such combination of bid items does not exceed the amount offered by any other conforming responsible bidder for the same combination of bid items.
452.236-71 Prohibition Against the Use of Lead-Based Paint.
As prescribed in 436.571, insert the following clause:
Neither the Contractor nor any subcontractor performing under this contract shall use paints containing more then 0.06 of 1 percent lead by weight (calculated as lead metal) in the total nonvolatile content of the paint, or the equivalent measure of lead in the dried film of paint already applied, or both.
452.236-72 Use of Premises.
As prescribed in 436.572, insert the following clause:
(a) Before any camp, quarry, borrow pit, storage, detour, or bypass site, other than shown on the drawings, is opened or operated on USDA land or lands administered by the USDA, the Contractor shall obtain written permission from the Contracting Officer. A camp is interpreted to include a campsite or trailer parking area of any employee working on the project for the Contractor.
(b) Unless excepted elsewhere in the contract, the Contractor shall (i) provide and maintain sanitation facilities for the work force at the site and (ii) dispose of solid waste in accordance with applicable Federal, State and local regulations.
452.236-73 Archaeological or Historic Sites.
As prescribed in 436.573, insert the following clause:
If a previously unidentified archaeological or historic site(s) is encountered, the Contractor shall discontinue work in the general area of the site(s) and notify the Contracting Officer immediately.
452.236-74 Control of Erosion, Sedimentation, and Pollution.
As prescribed in 436.574, insert the following clause:
(a) Operations shall be scheduled and conducted to minimize erosion of soils and to prevent silting and muddying of streams, rivers, irrigation systems, and impoundments (lakes, reservoirs, etc.).
(b) Pollutants such as fuels, lubricants, bitumens, raw sewage, and other harmful materials shall not be discharged on the ground; into or nearby rivers, streams, or impoundments; or into natural or man-made channels. Wash water or waste from concrete or aggregate operations shall not be allowed to enter live streams prior to treatment by filtration, settling, or other means sufficient to reduce the sediment content to not more than that of the stream into which it is discharged.
(c) Mechanized equipment shall not be operated in flowing streams without written approval by the Contracting Officer.
452.236-75 Maximum Workweek – Construction Schedule.
As prescribed in 436.575, insert the following clause:
Within __ calendar days after receipt of a written request from the Contracting Officer, the Contractor must submit the following in writing for approval:
(a) A schedule as required by FAR clause 52.236-15, Schedules for Construction Contracts, and
(b) The hours (including the daily starting and stopping times) and days of the week the Contractor proposes to carry out the work.
The maximum workweek that will be approved is __*.
* Contracting Officer shall insert appropriate number of days and hours and/or days.
452.236-76 Samples and Certificates.
As prescribed in 436.576, insert the following clause:
When required by the specifications or the Contracting Officer, samples, certificates, and test data shall be submitted after award of the contract, prepaid, in time for proper action by the Contracting Officer or his/her designated representative. Certificates and test data shall be submitted in triplicate to show compliance with materials and construction specified in the contract performance requirements.
Samples shall be submitted in duplicate by the Contractor, except as otherwise specified, to show compliance with the contract requirements. Materials or equipment for which samples, certifications or test data are required shall not be used in the work until approved in writing by the Contracting Officer.
452.236-77 Emergency Response.
As prescribed in 436.577, the following clause may be used in Forest Service construction contracts:
(a) Contractor’s Responsibility for Fire Fighting. (1) The Contractor, under the provisions of FAR clause 52.236-9, Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements, shall immediately extinguish all fires on the work site other than those fires in use as a part of the work.
(2) The Contractor may be held liable for all damages and for all costs incurred by the Government for labor, subsistence, equipment, supplies, and transportation deemed necessary to control or suppress a fire set or caused by the Contractor or the Contractor’s agents or employees.
(b) Contractor’s Responsibility for Notification in Case of Fire. The Contractor shall immediately notify the Government of any fires sighted on or in the vicinity of the work site.
(c) Contractor’s Responsibility for Responding to Emergencies. When directed by the Contracting Officer, the Contractor shall allow the Government to temporarily use employees and equipment from the work site for emergency work (anticipated to be restricted to fire fighting). An equitable adjustment for the temporary use of employees and equipment will be made under the Changes clause, FAR 52.243-4.
452.236-78 Fire Suppression and Liability.
As prescribed in section 436.578, the following clause shall be inserted in Intergrated Resource Service Contracts (IRSC) awarded for the Forest Service.
(a) Contractor’s Responsibility for Fire Fighting. The Contractor, under the provisions of FAR clause at 52.236-9, Protection of Existing Vegetation, Structures, Equipment, Utilities, and Improvements, shall immediately extinguish all fires on the work site other than those fires in use as a part of the work. The Contractor may be held liable for all damages and for all costs incurred by the Government for labor, subsistence, equipment, supplies, and transportation deemed necessary to control or suppress a fire set or caused by the Contractor or the Contractor’s agents or employees subject to the following fire classifications listed in subsection (b).
(b) Fire Suppression Costs. The Contractor’s obligations for cost of fire suppression vary according to three classifications of fires as follows:
(1) Operations Fire. An “operations fire” is a fire caused by the Contractor’s operations other than a negligent fire. The Contractor agrees to reimburse Forest Service for such cost for each operations fire, subject to a maximum dollar amount of [Contracting Officer insert amount]. The cost of the Contractor’s actions, supplies, and equipment on any such fire, or otherwise provided at the request of Forest Service, shall be credited toward such maximum. If the Contractor’s actual cost exceeds contractor’s obligation stated above, Forest Service shall reimburse the contractor for the excess.
(2) Negligent Fire. A “negligent fire” is a fire caused by the negligence or fault of the Contractor’s operations including, but not limited to, one caused by smoking by persons engaged in the Contractor’s operations during the course of their employment, or during rest or lunch periods; or if the Contractor’s failure to comply with requirements under this contract results in a fire starting, or permits a fire to spread. Damages and the cost of suppressing negligent fires shall be borne by the Contractor.
(3) Other Fires on Contract Area. Forest Service shall pay the Contractor, at firefighting rates common in the area or at prior agreed rates, for equipment or personnel furnished by the Contractor at the request of Forest Service, on any fire on contract area other than an operations fire or a negligent fire.
(c) Contractor’s Responsibility for Notification in Case of Fire. The Contractor shall immediately notify the Government of any fires sighted on or in the vicinity of the work site.
(d) Contractor’s Responsibility for Responding to Emergencies. When directed by the Contracting Officer, the Contractor shall temporarily redirect employees and equipment from the work site for emergency work (anticipated to be restricted to firefighting). This is considered to be within the general scope of the contract. An equitable adjustment for any such redirection of employees and equipment will be made under the FAR clause at 52.243-4, Changes.
(e) Performance by the Contractor. Where the Contractor’s employees, agents, contractors, subcontractors, or their employees or agents perform the Contractor’s operations in connection with fire responsibilities, the Contractor’s obligations shall be the same as if performance was by Contractor.
(f) State Law. The Contractor shall not be relieved by the terms of this contract of any liability to the United States for fire suppression costs recovered in an action based on State law, except for such costs resulting from operations fires. Amounts due to the Contractor for firefighting expenditures on operations fires shall not be withheld pending settlement of any such claim or action based on State law.
452.236-79 Opted Timber Sale Road Requirements.
As prescribed in 436.579, insert the following clause:
This contract is for the construction of timber sale road(s) which a timber purchaser has opted to have the Government construct. The Government is obligated to make these roads available to the timber purchaser by ___*. Failure to make these roads available by this date could result in Government liability for delay to the timber purchaser for which the Contractor might become liable should the Contractor fail to complete this contract within the specified and allowed contract time.
* Contracting Officer shall insert appropriate date.
452.236-80 Firms Ineligible for Award – Construction.
As prescribed in 436.670, insert the following clause:
The firm(s) and its subsidiaries or affiliates signatory to this contract shall be ineligible for award of any construction contract resulting from the design work performed under this contract.
452.237-70 Loss, Damage, Destruction or Repair.
(a) As prescribed in 437.110(a), insert a clause substantially as follows:
(a) For equipment furnished under this contract without operator, the Government will assume liability for any loss, damage or destruction of such equipment, not to exceed a total of $___* except that no reimbursement will be made for loss, damage or destruction due to (1) ordinary wear or tear, (2) mechanical failure, or (3) the fault or negligence of the Contractor or the Contractor’s agents or employees.
(b) For equipment furnished under this contract with operator, the Government shall not be liable for any loss, damage or destruction of such equipment, except for loss, damage or destruction resulting from the negligent or wrongful act(s) of Government employee(s) while acting within the scope of their employment.
(c) All repairs to equipment furnished under this contract shall be made by the Contractor and reimbursement, if any, shall be determined in accordance with (a) or (b) above. Repairs shall be made promptly and equipment returned to use within ___** hours. In lieu of repairing equipment, the Contractor may furnish similar replacement equipment within the time specified. The Contractor may authorize the Government to make repairs upon the request of the Contracting Officer. In such case, the Contractor will be billed for labor and parts costs.
* Contracting Officer shall insert amount available in current funds to cover potential liability.
** Contracting Officer shall insert appropriate number of hours.
452.237-71 Pre-Bid/Pre-Proposal Conference.
As prescribed in 437.110(b), insert a provision substantially as follows:
(a) The Government is planning a pre-bid/pre-proposal conference, during which potential offerors may obtain a better understanding of the work required.
(b) Offerors are encouraged to submit all questions in writing at least five (5) days prior to the conference. Questions will be considered at any time prior to or during the conference; however, offerors will be asked to confirm verbal questions in writing. Subsequent to the conference, an amendment to the solicitation containing an abstract of the questions and answers, and a list of attendees, will be disseminated.
(c) In order to facilitate conference preparations, it is requested that the person named on the Standard Form 33 of this solicitation be contacted and advised of the number of persons who will attend.
(d) The Government assumes no responsibility for any expense incurred by an offeror prior to contract award.
(e) Offerors are cautioned that, notwithstanding any remarks or clarifications given at the conference, all terms and conditions of the solicitation remain unchanged unless they are changed by amendment to the solicitation. If the answers to conference questions, or any solicitation amendment, create ambiguities, it is the responsibility of the offeror to seek clarification prior to submitting an offer.
(f) The conference will be held:
452.237-73 Equipment Inspection Visit.
As prescribed in 437.110(c), insert the following provision:
Offerors are urged and expected to inspect the equipment on which maintenance or repairs are to be performed and to satisfy themselves regarding all conditions that may affect the cost of contract performance, to the extent that the information is reasonably obtainable. In no event shall failure to inspect the equipment constitute grounds for a claim after contract award.
Offerors are invited to inspect the ___* at ___* by telephoning ___* on ___* for an appointment.
* Contracting Officer shall insert appropriate data.
452.237-74 Key Personnel.
As prescribed in 437.110(d), insert a clause substantially as follows:
(a) The Contractor shall assign to this contract the following key personnel: _____
(b) During the first ninety (90) days of performance, the Contractor shall make no substitutions of key personnel unless the substitution is necessitated by illness, death, or termination of employment. The Contractor shall notify the Contracting Officer within 15 calendar days after the occurrence of any of these events and provide the information required by paragraph (c) below. After the initial 90-day period, the Contractor shall submit the information required by paragraph (c) to the Contracting Officer at least 15 days prior to making any permanent substitutions.
(c) The Contractor shall provide a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the Contracting Officer. Proposed substitutes should have comparable qualifications to those of the persons being replaced. The Contracting Officer will notify the Contractor within 15 calendar days after receipt of all required information of the decision on substitutions. The contract will be modified to reflect any approved changes of key personnel.
452.237-75 Restrictions Against Disclosure.
As prescribed in 437.110(e), insert a clause substantially as follows:
(a) The Contractor agrees, in the performance of this contract, to keep all information contained in source documents or other media furnished by the Government in the strictest confidence. The Contractor also agrees not to publish or otherwise divulge such information in whole or in part in any manner or form, or to authorize or permit others to do so, taking such reasonable measures as are necessary to restrict access to such information while in the Contractor’s possession, to those employees needing such information to perform the work provided herein, i.e., on a “need to know” basis. The Contractor agrees to immediately notify in writing, the Contracting Officer, named herein, in the event that the Contractor determines or has reason to suspect a breach of this requirement.
(b) The Contractor agrees not to disclose any information concerning the work under this contract to any persons or individual unless prior written approval is obtained from the Contracting Officer. The Contractor agrees to insert the substance of this clause in any consultant agreement or subcontract hereunder.
452.237-76 Progress Reporting.
As prescribed in 437.270(a), insert a clause substantially as follows:
The Contractor shall submit a progress report ___*, covering work accomplished during that period of the contract performance. The progress report shall be brief and factual and shall be prepared in accordance with the following format:
(a) A cover page containing:
(1) Contract number and title;
(2) Type of report, sequence number of report, and period of performance being reported;
(3) Contractor’s name and address;
(4) Author(s); and
(5) Date of report.
(b) Section I – An introduction covering the purpose and scope of the contract effort. This shall be limited to one paragraph in all but the first and final month’s narrative.
(c) Section II – A description of overall progress plus a separate description of each task or other logical segment of work on which effort was expended during the report period. The description shall include pertinent data and/or graphs in sufficient detail to explain any significant results achieved.
(d) Section III – A description of current technical or substantive performance, and any problem(s) which may impede performance along with proposed corrective action.
(e) Section IV – A planning schedule shall be included with the first progress report for all assigned tasks required under the contract, along with the estimated starting and completion dates for each task. The planning schedule shall be updated and submitted with each subsequent technical progress report, including an explanation of any difference between actual progress and planned progress, why the differences have occurred, and – if behind planned progress – what corrective steps are planned.
(f) Section V – If applicable, financial information shall be submitted for each major task or line item cost.
Data shall include:
(1) The total estimated cost budgeted (fee excluded).
(2) The estimated cost expended during the current reporting period.
(3) Identification of direct labor hours of prime contractor and subcontractor(s) and/or consultant(s), if applicable.
(4) Total project to-date expenditures.
(5) Total remaining funds.
* Contracting Officer shall insert frequency of reporting requirement.
452.237-78 Contracts with Consulting Firms for Services.
As prescribed in 437.270(b), insert a clause substantially as follows:
Offerors are specifically cautioned that any firm(s) receiving a contract award to provide the services described herein will be prohibited from competing for or receiving a follow-on contract to perform ___.*
* Contracting Officer shall insert the appropriate information.
452.246-70 Inspection and Acceptance.
As prescribed in 446.370, insert the following clause:
(a) The Contracting Officer or the Contracting Officer’s duly authorized representative will inspect and accept the supplies and/or services to be provided under this contract.
(b) Inspection and acceptance will be performed at: ___.*
* Contracting Officer shall insert appropriate identifying data.
Alternate I (FEB 1988). As prescribed in 446.370, substitute a paragraph (b) and add a paragraph (c):
(b) Inspection will be performed at: ___.*
(c) Acceptance will be performed at: ___.*
452.247-70 Delivery Location.
As prescribed in 447.302, insert a clause substantially as follows:
Shipment of deliverable items, other than reports, shall be to: ___.*
* Contracting Officer shall insert appropriate identifying data.
452.247-71 Marking Deliverables.
As prescribed in 447.305-10(a), insert a clause substantially as follows:
(a) The contract number shall be placed on or adjacent to all exterior mailing or shipping labels of deliverable items called for by the contract.
(b) Mark deliverables, except reports, for: ___.*
* Contracting Officer shall insert the appropriate information.
452.247-72 Packing for Domestic Shipment.
As prescribed in 447.305-10(b), insert the following clause:
Material shall be packed for shipment in such a manner that will insure acceptance by common carriers and safe delivery at destination. Containers and closures shall comply with the Interstate Commerce Commission regulations, Uniform Freight Classification Rules, or regulations of other carriers as applicable to the mode of transportation.
452.247-73 Packing for Overseas Shipment.
As prescribed in 447.305-10(c), insert the following clause:
Supplies shall be packed for overseas shipment in accordance with the best commercial export practice suitable for water movement to arrive undamaged at ultimate destination.
PART 453 – FORMS
453.000 Scope of part.
This part:
(a) Prescribes USDA (AD) forms for use in acquisition,
(b) Contains requirements and information generally applicable to AD forms and forms prescribed by FAR part 53, and
(c) Illustrates AD forms.
Subpart 453.1 – General
453.103 Exceptions.
(a) The contracting officer shall submit a request for exceptions to forms prescribed in FAR part 53 through the head of the contracting activity (HCA) to the Senior Procurement Executive (SPE) for referral to the GSA.
(b) Requests for exceptions to AD forms prescribed in part 453 shall be handled as individual or class deviations, as appropriate (see subpart 401.4).
453.108 Recommendations concerning forms.
Contracting officers shall submit recommendations for new forms or to revise, eliminate, or consolidate forms prescribed by FAR part 53 and part 453 through the HCA to the SPE.
Subpart 453.2 – Prescription of Forms
453.200 Scope of subpart.
This subpart prescribes USDA (AD) forms for use in acquisition. Consistent with the approach used in FAR subpart 53.2, this subpart is arranged by subject matter, in the same order as, and keyed to, the parts of the AGAR in which the form usage requirements are addressed.
453.213 Simplified Acquisition and other simplified purchase procedures (AD-838).
Form AD-838, Purchase Order, is prescribed for use as a Simplified Acquisition Procedure/delivery order/task order document in lieu of OF 347 and OF 348, except that use of the OF 347 and OF 348 is authorized when utilizing the USDA Integrated Acquisition System (See 413.307).
453.270 Request for contract action (AD-700).
Form AD-700, Procurement Request, may be used as a contract requisition document by contracting activities in USDA.
Subpart 453.3 – Illustrations of Forms
453.300 Scope of subpart.
This subpart contains illustrations of USDA (AD) forms for use in acquisitions. Forms are not illustrated in the
453.303 Agency forms.
453.303-700 Procurement Request (AD-700).
453.303-838 Purchase Order (AD-838).
SUBCHAPTER I – FOOD ASSISTANCE PROGRAMS
PART 470 – COMMODITY ACQUISITIONS
470.000 Scope of part.
This part sets forth the policies, procedures and requirements governing the procurement of agricultural commodities by the Department of Agriculture for use:
(a) Under any domestic feeding and assistance program administered by the Food and Nutrition Service; and
(b) Under Title II of the Food for Peace Act (7 U.S.C. 1721 et seq.); the Food for Progress Act of 1985; the McGovern-Dole International Food for Education and Child Nutrition Program; and any other international food assistance program.
470.101 Definitions.
The following definitions are applicable to this part:
Commingled product means grains, oilseeds, rice, pulses, other similar commodities and the products of such commodities, when such commodity or product is normally stored on a commingled basis in such a manner that the commodity or product produced in the United States cannot be readily distinguished from a commodity or product not produced in the United States.
Department means the Department of Agriculture.
Food and Nutrition Service means such agency located within the Department of Agriculture.
Foreign Agriculture Service means such agency located within the Department of Agriculture.
Free alongside ship (f.a.s.) ( * * named port of shipment) means a term of sale which means the seller fulfills its obligation to deliver when the goods have been placed alongside the vessel on the quay or in lighters at the named port of shipment. The buyer bears all costs and risks of loss of or damage to the goods from that moment.
Free carrier (FCA) ( * * named place) means a term of sale which means the seller fulfills its obligation when the seller has handed over the goods, cleared for export, into the charge of the carrier named by the buyer at the named place or point. If no precise point is indicated by the buyer, the seller may choose, within the place or range stipulated, where the carrier should take the goods into their charge.
Grantee organization means an organization which will receive commodities from the United States Agency for International Development under Title II of the Food for Peace Act (7 U.S.C. 1721 et seq.) or from the Foreign Agricultural Service under the Food for Progress Act of 1985; the McGovern-Dole International Food for Education and Child Nutrition Program; and any other international food assistance program.
Ingredient means spices, vitamins, micronutrients, desiccants, and preservatives when added to an agricultural commodity product.
Last contract lay day means the last day specified in an ocean freight contract by which the carriage of goods must start for contract performance.
Lowest landed cost means, as authorized by 46 U.S.C. 55314(c), with respect to an agricultural product acquired under this part the lowest aggregate cost for the acquisition of such product and the shipment of such product to a foreign destination.
Multi-port voyage charter means the charter of an ocean carrier in which the carrier will stop at two or more ports to discharge cargo.
470.102 Policy.
(a) Policy. It is the policy of the Department to follow the policies and procedures set forth in the Federal Acquisition Regulation (FAR) as supplemented by the Agriculture Acquisition Regulation, including this part, in the procurement of agricultural commodities and products of agricultural commodities that are used in domestic feeding and international feeding and development programs.
(b) Electronic submission. To the maximum extent possible, the use of electronic submission of solicitation-related documents shall be used with respect to the acquisition of agricultural commodities and related freight; however, to the extent that a solicitation allows for the submission of written information in addition to information in an electronic format and there is a discrepancy in such submissions, the information submitted in a written format shall prevail unless the electronic submission states that a specific existing written term is superseded by the electronic submission.
(c) Freight. With respect to the acquisition of freight for the shipment of agricultural commodities and products of agricultural commodities, the provisions of the FAR, including part 47, shall be utilized and various types of services to be obtained may include multi-trip voyage charters.
470.103 United States origin of agricultural products.
(a) Products of United States origin. As provided by 7 U.S.C. 1732(2) and 1736o-1(a) commodities and the products of agricultural commodities acquired for use in international feeding and development programs shall be products of United States origin. A product shall not be considered to be a product of the United States if it contains any ingredient that is not produced in the United States if that ingredient is:
(1) Produced in the United States; and
(2) Commercially available in the United States at fair and reasonable prices from domestic sources.
(b) Use by the Food and Nutrition Service. Commodities and the products of agricultural commodities acquired for use by the Food and Nutrition Service shall be a product of the United States, except as may otherwise be required by law, and shall be considered to be such a product if it is grown, processed, and otherwise prepared for sale or distribution exclusively in the United States except with respect to ingredients. Ingredients from non-domestic sources will be allowed to be utilized as a United States product if such ingredients are not otherwise:
(1) Produced in the United States; and
(2) Commercially available in the United States at fair and reasonable prices from domestic sources.
(c) Commingled product. (1) Except as provided in paragraph (c)(2) of this section, a commingled product shall be considered to be a product of the United States if the offeror can establish that the offeror has in inventory at the time the contract for the commodity or product is awarded to the offeror, or obtains during the contract performance period specified in the solicitation, or a combination thereof, a sufficient quantity of the commodity or product that was produced in the United States to fulfill the contract being awarded, and all unfulfilled contracts that the offeror entered into to provide such commingled product to the United States.
(2) To the extent the Department has determined a commodity is one that is generally commingled, but is also one which can be readily stored on an identity preserved basis with respect to its country of origin, the Department may require that the commodity procured by the Department shall be of 100 percent United States origin.
(d) Product derived from animals. With respect to the procurement of products derived from animals, the solicitation will set forth any specific requirement that is applicable to the country in which the animal was bred, raised, slaughtered or further processed.
470.200 [Reserved]
470.201 Acquisition of commodities and freight shipment for Foreign Agricultural Service programs.
(a) Lowest landed cost and delivery considerations. (1) Except as provided in paragraphs (a)(3) and (4) of this section, in contracts for the Foreign Agricultural Service for commodities and related freight shipment for delivery to foreign destinations, the contracting officer shall consider the lowest landed cost of delivering the commodity to the intended destination. This lowest landed cost determination will be calculated on the basis of rates and service for that portion of the commodities being purchased that is determined is necessary and practicable to meet 46 U.S.C. 55314(c)(3) and cargo preference requirements and on an overall (foreign and U.S. flag) basis for the remaining portion of the commodities being procured and the additional factors set forth in this section. Accordingly, the solicitations issued with respect to a commodity procurement or a related freight procurement will specify that in the event an offer submitted by a party is the lowest offered price, the contracting officer reserves the right to reject such offer if the acceptance of another offer for the commodity or related freight, when combined with other offers for commodities or related freight, results in a lower landed cost to the Department.
(2) The Department may contact any port prior to award to determine the port’s cargo handling capabilities, including the adequacy of the port to receive, accumulate, handle, store, and protect the cargo. Factors considered in this determination may include, but not be limited to, the adequacy of building structures, proper ventilation, freedom from insects and rodents, cleanliness, and overall good housekeeping and warehousing practices. The Department may consider the use of another coastal range or port if a situation exists at a port that may adversely affect the ability of the Department to have the commodity delivered in a safe and timely manner. Such situations include:
(i) A port is congested;
(ii) Port facilities are overloaded;
(iii) A vessel would not be able to dock and load cargo without delay;
(iv) Labor disputes or lack of labor may prohibit the loading of the cargo onboard a vessel in a timely manner; or
(v) Other similar situation that may adversely affect the ability of the Department to have the commodity delivered in a timely manner.
(3) Use of other than lowest landed cost. In order to ensure that commodities are delivered in a timely fashion to foreign destinations and without damage, the contracting officer may award an acquisition without regard to the lowest land cost process set forth in paragraph (a)(1) of this section if:
(i) The solicitation specifies that the lowest land cost process will not be followed in the completion of the contract; or
(ii) After issuance of the solicitation, it is determined that:
(A) Internal strife at the foreign destination or urgent humanitarian conditions threatens the lives of persons at the foreign destination;
(B) A specific port’s cargo handling capabilities (including the adequacy of the port to receive, accumulate, handle, store, and protect commodities) and other similar factors may adversely affect the delivery of such commodities through damage or untimely delivery. Such similar factors include, but are not limited to: port congestion; overloaded facilities at the port; vessels not being able to dock and load cargo without delay due to conditions at the port; labor disputes or lack of labor may prohibit the loading of the cargo onboard a vessel in a timely manner; and the existence of inadequate or unsanitary warehouse and other supporting facilities;
(C) The total transit time of a carrier, as it relates to a final delivery date at the foreign destination may impair the timely delivery of the commodity;
(D) Other similar situations arise that materially affect the administration of the program for which the commodity or freight is being procured; or
(E) The contracting officer determines that extenuating circumstances preclude awards on the basis of lowest-landed cost, or that efficiency and cost-savings justify use of types of ocean service that would not involve an analysis of freight. However, in all such cases, commodities would be transported in compliance with cargo preference requirements. Examples of extenuating circumstances are events such as internal strife at the foreign destination or urgent humanitarian conditions threatening the lives of persons at the foreign destination. Other types of services may include, but are not limited to, multi-trip voyage charters, indefinite delivery/indefinite quantity (IDIQ), delivery cost and freight (C & F), delivery cost insurance and freight (CIF), and indexed ocean freight costs.
(4) If a contracting officer determines that action may be appropriate under paragraph (a)(3) of this section, prior to the acceptance of any applicable offer, the contracting officer will provide to the Head of Contracting Activity Designee a written request to obtain commodities and freight in a manner other than on a lowest landed cost basis consistent with Title 48 Code of Federal Regulations. This request shall include a statement of the reasons for not using lowest landed cost basis. The Head of the Contracting Activity Designee, or the designee one level above the contracting officer, may either accept or reject this request and shall document this determination.
(b) Multiple offers or delivery points. If more than one offer for the sale of commodities is received or more than one delivery point has been designated in such offers, in order to achieve a combination of a freight rate and commodity award that produces the lowest landed cost for the delivery of the commodity to the foreign destination, the contracting officer shall evaluate offers submitted on a delivery point by delivery point basis; however, consideration shall be given to prioritized ocean transport service in determining lowest landed cost.
(c) Freight shipping and rates. (1) In determining the lowest-landed cost, the Department shall use the freight rates offered in response to solicitations issued by the Department or, if applicable, the grantee organization.
(2) Freight rates offered must be submitted as specified in the solicitation issued by the Department or, if applicable, the grantee organization. Any such solicitation issued by a grantee organization must contain the following elements:
(i) If directed by the Department, include a closing time for the receipt of written freight offers and state that late written freight offers will not be considered;
(ii) Provide that freight offers are required to have a canceling date no later than the last contract lay day specified in the solicitation;
(iii) Provide the same deadline for receipt of written freight offers from both U.S. flag vessel and non-U.S. flag vessels; and
(iv) Be received and opened prior to any related offer for acquisition of commodities to be shipped.
(3) The Department may require organizations that will receive commodities from the Department to submit information relating to the capacity of a U.S. port, or, if applicable, a terminal, prior to the acquisition of such commodities or freight.
(d) Freight rate notification. If the Department is not the party procuring freight with respect to a shipment of an agricultural commodity for delivery to a foreign destination, the organization that will receive commodities from the Department, or its shipping agent, shall be notified by the Department of the vessel freight rate used in determining the commodity contract award and the organization will be responsible for finalizing the charter or booking contract with the vessel representing the freight rate.
470.202 Acquisition of commodities for United States Agency for International Development (USAID) programs.
(a) Lowest landed cost and delivery considerations. (1) Except as provided in paragraphs (a)(3) and (e)(2) of this section, with respect to the acquisition of agricultural commodities for delivery to foreign destinations and related freight to transport such commodities under Title II of Public Law 480, contracts will be entered into in a manner that will result in the lowest landed cost of such commodity delivery to the intended destination. This lowest landed cost determination shall be calculated on the basis of rates and service for that portion of the commodities being purchased that is determined is necessary and practicable to meet 46 U.S.C. 55314(c)(3) and cargo preference requirements and on an overall (foreign and U.S. flag) basis for the remaining portion of the commodities being procured and the additional factors set forth in this section. Accordingly, the solicitations issued with respect to a commodity procurement or a freight procurement will specify that in the event an offer submitted by a party is the lowest offered price, the contracting officer reserves the right to reject such offer if the acceptance of another offer for the commodity or freight, when combined with other offers for commodities or freight, results in a lower landed cost to USAID.
(2) The Department may contact any port prior to award to determine the port’s cargo handling capabilities, including the adequacy of the port to receive, accumulate, handle, store, and protect the cargo. Factors which will be considered in this determination will include, but not be limited to, the adequacy of building structures, proper ventilation, freedom from insects and rodents, cleanliness, and overall good housekeeping and warehousing practices. The Department may consider the use of another coastal range or port if a situation exists at a port that may adversely affect the ability of the Department to have the commodity delivered in a safe and/or timely manner. Such situations include:
(i) A port is congested;
(ii) Port facilities are overloaded;
(iii) A vessel would not be able to dock and load cargo without delay;
(iv) Labor disputes or lack of labor may prohibit the loading of the cargo onboard a vessel in a timely manner; or
(v) Other similar situation that may adversely affect the ability of the Department to have the commodity delivered in a timely manner.
(3) Use of other than lowest landed cost. In order to ensure that commodities are delivered in a timely fashion to foreign destinations and without damage, the Department may complete an acquisition without regard to the lowest land cost process set forth in paragraph (a)(1) of this section, if:
(i) The solicitation specifies that the lowest land cost process will not be followed in the completion of the contract; or
(ii) After issuance of the solicitation, it is determined that:
(A) Internal strife at the foreign destination or urgent humanitarian conditions threatens the lives of persons at the foreign destination;
(B) A specific port’s cargo handling capabilities (including the adequacy of the port to receive, accumulate, handle, store, and protect commodities) and other similar factors will adversely affect the delivery of such commodities without damage or in a timely manner. Such similar factors include, but are not limited to: port congestion; overloaded facilities at the port; vessels would not be able to dock and load cargo without delay; labor disputes or lack of labor may prohibit the loading of the cargo onboard a vessel in a timely manner; and the existence of inadequate or unsanitary warehouse and other supporting facilities;
(C) The total transit time of a carrier, as it relates to a final delivery date at the foreign destination may impair the ability of the Department to achieve timely delivery of the commodity; or
(D) Other similar situations arise that materially affect the administration of the program for which the commodity or freight is being procured.
(4) If the contracting officer determines that action may be appropriate under paragraph (a)(3) of this section, prior to the acceptance of any applicable offer, the contracting officer shall provide to the head of contracting activity designee and to USAID, a written request to obtain commodities and freight in a manner other than on a lowest landed cost basis. This request shall include a statement of the reasons for not using lowest landed cost basis. The head of contracting authority designee, or one level above the contracting officer, with the concurrence of USAID, shall, on an expedited basis, either accept or reject this request and shall document this determination in writing and provide a copy to USAID.
(b) Freight shipping and rates. (1) In determining lowest-landed cost as specified in paragraph (a) of this section, the Department shall use vessel rates offered in response to solicitations issued by USAID or grantee organizations receiving commodities under 7 U.S.C. 1731 et seq.
(2) USAID may require, or direct a grantee organization to require, an ocean carrier to submit offers electronically through a Web-based system maintained by the Department. If electronic submissions are required, the Department may, at its discretion, accept corrections to such submissions that are submitted in a written form other than by use of such Web-based system.
(c) Delivery date. The contracting officer shall consider total transit time, as it relates to a final delivery date, in order to satisfy Public Law 480 Title II program requirements.
(d) Delivery points. (1) Commodities offered for delivery free alongside ship Great Lakes port range or intermodal bridge-point Great Lakes port range that represent the overall (foreign and U.S. flag) lowest landed cost will be awarded on a lowest landed cost basis. Tonnage allocated on this basis will not be reevaluated on a lowest landed cost U.S.-flag basis unless the contracting officer determines that 25 percent of the total annual tonnage of bagged, processed, or fortified commodities furnished under 7 U.S.C. 1731 et seq. has been, or will be, transported from the Great Lakes port range during that fiscal year.
(2) The contracting officer shall consider commodity offers as offers for delivery “intermodal bridge-point Great Lakes port range” only if:
(i) The offer specifies delivery at a marine cargo-handling facility that is capable of loading ocean going vessels at a Great Lakes port, as well as loading ocean going conveyances such as barges and container vans, and
(ii) The commodities will be moved from one transportation conveyance to another at such a facility.
(e) Multiple awards or delivery points. (1) If more than one offer for the sale of commodities is received or more than one delivery point has been designated in such offers, in order to achieve a combination of a freight rate and commodity award that produces the lowest landed cost for the delivery of the commodity to the foreign destination, the contracting officer shall evaluate offers submitted on a delivery point by delivery point basis; however, consideration shall be given to prioritized ocean transport service in determining lowest landed cost.
(2) The contracting officer may determine that extenuating circumstances preclude awards on the basis of lowest landed cost. However, in all such cases, commodities may be transported in compliance with cargo preference requirements as determined by USAID.
(3) The contracting officer shall notify USAID or, if applicable, the grantee organization, that its shipping agent will be notified of the vessel freight rate used in determining the commodity contract award. The grantee organization or USAID will be responsible for finalizing the charter or booking contract with the vessel representing the freight rate so used.
470.203 Cargo preference.
An agency having responsibility under this subpart shall administer its programs, with respect to this subpart, in accordance with regulations prescribed by the Secretary of Transportation.
PARTS 471-499 [RESERVED]
CHAPTER 5 – GENERAL SERVICES ADMINISTRATION
SUBCHAPTER A – GENERAL
PART 500 [RESERVED]
PART 501 – GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM
Subpart 501.1 – Purpose, Authority, Issuance
501.101 Purpose.
(a) The General Services Acquisition Regulation (GSAR) contains agency acquisition policies and practices, contract clauses, solicitation provisions, and forms that control the relationship between GSA and contractors and prospective contractors.
(b) GSAR address rules directly to you, the contracting officer, unless otherwise indicated.
501.103 Authority.
GSA’s Senior Procurement Executive issues the GSAR under the authority of the Federal Property and Administrative Services Act of 1949, as amended.
501.104 Applicability.
(a) General. The GSAR applies to contracts for suppliers or services, including construction.
(b) Acquisition of leasehold interests in real property. Part 570 establishes rules for the acquisition of leasehold interests in real property. Other provisions of 48 CFR chapter 5 (GSAR) do not apply to leases of real property unless specifically cross-reference in part 570.
(c) Relationship to state. Some GSAR rules implement and interpret laws and other authorities affecting procurement. A GSAR rule specifically directed by statute has the force and effect of law.
501.105 Issuance.
501.105-1 Publication and code arrangement.
The GSAR is published in the following sources:
(a) The
(b) Annual Code of Federal Regulations (CFR), as Chapter 5 of Title 48.
501.105-2 Arrangement of regulations.
(a) The GSAR numbers and captions policies and procedures to correspond to how they appear in the FAR, e.g., 1.104 in the FAR is 501.104 in the GSAR.
(b) GSAR rules not implementing the FAR have numbers beginning with 70, e.g., part 570, subsection 515.209-70.
(c) The GSAR may have gaps in its numbering scheme because a FAR rule may not require GSAR implementation.
501.105-3 Copies.
Copies of the GSAR may be purchased from the Government Printing Office at https://www.gpo.gov/. The GSAR is also available electronically at https://www.ecfr.gov/ or at https://www.acquisition.gov under the agency supplements tab.
501.106 OMB approval under the Paperwork Reduction Act.
The Paperwork Reduction Act of 1980 (44 U.S.C. 35, et seq.) imposes a requirement on Federal agencies to obtain approval from the Office of Management and Budget (OMB) before collecting information from 10 or more members of the public. The information collection and recordkeeping requirements contained in this section have been approved by the OMB. This table includes OMB approved control numbers from GSA (3090 series) and the Federal Acquisition Regulations (FAR) (9000 series) that are applicable to GSA acquisition requirements. The following OMB control numbers apply:
Table 1 to 501.106
| GSAR reference | OMB control No. |
|---|---|
| 509.105-1 | 3090-0007 |
| 511.204(c) | 3090-0246 |
| 512.301 | 3090-0163 |
| 514.201-1 | 3090-0163 |
| 515.209-70(b) | 3090-0163 |
| 515.408 | 3090-0235 |
| 516.506 | 3090-0248 |
| 523.370 | 3090-0205 |
| 532.905-70 | 3090-0080 |
| 538.273 | 3090-0163, 3090-0235, 3090-0250, 3090-0262, 3090-0303, 3090-0306 |
| 542.1107 | 3090-0027 |
| 546.302-71 | 3090-0027 |
| 552.211-13(a) | 9000-0026 |
| 552.211-70(b) | 9000-0058 |
| 552.211-77 | 3090-0246 |
| 552.215-73 | 3090-0163 |
| 552.216-70 | 3090-0235 |
| 552.216-72 | 3090-0248 |
| 552.216-73 | 3090-0248 |
| 552.216-75 | 3090-0306 |
| 552.223-72 | 3090-0205 |
| 552.232-5 | 3090-0080, 9000-0070, 9000-0102 |
| 552.232-72 | 3090-0080 |
| 552.236-15 | 9000-0058 |
| 552.236-72 | 3090-0308 |
| 552.236-79 | 3090-0320 |
| 552.236-80 | 9000-0034 |
| 552.238-72 | 3090-0163 |
| 552.238-73 | 3090-0250 |
| 552.238-78 | 3090-0262 |
| 552.238-80 | 3090-0235, 3090-0306 |
| 552.238-81 | 3090-0235, 3090-0306 |
| 552.238-82 | 3090-0302 |
| 552.238-84 | 3090-0303 |
| 552.238-85 | 3090-0303 |
| 552.238-87 | 3090-0303 |
| 552.238-95 | 3090-0303 |
| 552.238-96 | 3090-0303 |
| 552.238-97 | 3090-0303 |
| 552.238-99 | 3090-0303 |
| 552.238-111 | 3090-0303 |
| 552.239-70 | 3090-0300 |
| 552.239-71 | 3090-0300 |
| 552.242-70 | 3090-0027 |
| 552.246-70 | 3090-0027 |
| 552.246-71 | 3090-0027 |
| 552.270-33 | 3090-0324 |
| 570.703(c) | 3090-0324 |
| 570.802(b) | 3090-0086 |
| 570.802(c) | 3090-0086 |
| GSA-527 | 3090-0007 |
| GSA-1142 | 3090-0080 |
| GSA-1217 | 3090-0086 |
| GSA-1364 | 3090-0086 |
| GSA-1678 | 3090-0027 |
| GSA-2419 | 9000-0102 |
PART 502 – DEFINITIONS OF WORDS AND TERMS
Subpart 502.1 – Definitions
502.101 Definitions.
Commercial supplier agreements means terms and conditions customarily offered to the public by vendors of supplies or services that meet the definition of “commercial item” set forth in FAR 2.101 and intended to create a binding legal obligation on the end user. Commercial supplier agreements are particularly common in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data, but they may apply to any supply or service. The term applies –
(a) Regardless of the format or style of the document. For example, a commercial supplier agreement may be styled as standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order;
(b) Regardless of the media or delivery mechanism used. For example, a commercial supplier agreement may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.
PART 503 – IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 503.1 – Safeguards
503.104 Procurement integrity.
Subpart 503.2 – Contractor Gratuities to Government Personnel
503.204 Treatment of violations.
(a) The Senior Procurement Executive, or designee, makes determinations under FAR 3.204.
The Senior Procurement Executive, or designee, takes all the following actions:
(1) Coordinates with legal counsel;
(2) Initiates proceedings under FAR 3.204(a) by notifying the contractor that GSA is considering action against the contractor for a violation of the Gratuities clause. Notice is sent by a certified letter to the last known address of the party, its counsel, or agent for service of process. In the case of a business, notice is sent to any partner, principal officer, director, owner or co-owner; and
(3) Presumes receipt if no return receipt is received within 10 calendar days after mailing the notice.
(b) The contractor has 30 calendar days to exercise its rights under FAR 3.204(b), unless the Senior Procurement Executive, or designee, grants an extension.
(c) If there is a dispute of fact material to making a determination, the Senior Procurement Executive, or designee, may refer the matter to an agency fact-finding official, designated by the Suspension and Debarment Official, in accordance with GSAR 509.403. Referrals for fact-finding are not made in cases arising from a conviction or indictment as defined in FAR 9.403. If a referral is made, the fact-finding official takes all the following actions:
(1) Gives the contractor an opportunity to dispute material facts relating to the determinations under FAR 3.204(a)(1) and (2);
(2) Conducts proceedings under rules consistent with FAR 3.204(b);
(3) Schedules a hearing within 20 calendar days of receipt of the referral. The contractor or GSA may request an extension for good cause; and
(4) Delivers to the Senior Procurement Executive, or designee, written findings of fact (together with a transcription of the proceedings, if made) within 20 calendar days after the hearing record closes. The findings must resolve any material disputes of fact by a preponderance of the evidence.
(d) The Senior Procurement Executive, or designee, may reject the findings of the fact-finding official only if the findings are clearly erroneous or arbitrary and capricious.
(e) In cases arising from conviction or indictment, or in which there are no disputes of material fact, the Senior Procurement Executive, or designee, conducts the hearing required by FAR 3.204(b).
(f) If the Gratuities clause was violated, the contractor may present evidence of mitigating factors to the Senior Procurement Executive, or designee, in accordance with FAR 3.204(b) either orally or in writing, consistent with a schedule the Senior Procurement Executive, or designee, establishes. The Senior Procurement Executive, or designee, exercises the Government’s rights under FAR 3.204(c) only after considering mitigating factors.
Subpart 503.4 – Contingent Fees [Reserved]
Subpart 503.5 – Other Improper Business Practices
503.570 Advertising.
503.570-1 Policy.
GSA policy precludes contractors from making references to GSA contracts in commercial advertising in a manner that states or implies the Government approves or endorses the product or service or considers it superior to other products or services. The intent of this policy is to prevent the appearance of Government bias toward any product or service.
503.570-2 Contract clause.
Insert the clause at 552.203-71, Restriction on Advertising, in solicitations and contracts, including acquisitions of leasehold interests in real property, if the contract amount is expected to exceed the simplified acquisition threshold.
Subpart 503.7 – Voiding and Rescinding Contracts
503.703 Authority.
Pursuant to FAR 3.703 and 3.705(b), the authority to void or rescind contracts resides with the Senior Procurement Executive.
Subpart 503.10 – Contractor Code of Business Ethics and Conduct
503.1004 Contract clauses.
(a) In accordance with FAR 3.1004(b)(1)(i), GSA has established a lower threshold for the inclusion of FAR clause at 52.203-14. Insert the clause in solicitations and contracts funded with disaster assistance funds expected to be at or above $1,000,000.
(b) The information required by FAR 3.1004(b)(2) is as follows:
(1) Poster. GSA Office of Inspector General “FRAUDNET HOTLINE”.
(2) Contact information. The Contractor can obtain the poster from the Contracting Officer.
PART 504 – ADMINISTRATIVE MATTERS
Subpart 504.4 – Safeguarding Classified Information Within Industry
504.402 General.
(a) This subpart prescribes procedures for safeguarding classified information required to be disclosed to contractors in connection with the solicitation of offers, and the award, performance, and termination of contracts.
(b) As used in this subpart, the term “Contractor(s)” means prospective contractors, subcontractors, vendors, and suppliers.
504.475 Return of classified information.
(a) Contracting officers must recover classified information, unless it has been destroyed as provided in Section 7 of Chapter 5 of the National Industrial Security Program Operating Manual (NISPOM). Information on NISPOM can be found at http://www.fas.org/sgp/library/nispom.htm.
(b) Contracting officers must ensure that classified information provided by the government is returned immediately after any of the following events:
(1) Bid opening or closing date for receipt of proposals by non-responding offerors.
(2) Contract award by unsuccessful offerors.
(3) Termination or completion of the contract.
(4) Notification that authorization to release classified information has been withdrawn.
(5) Notification that a facility:
(i) Does not have adequate means to safeguard classified information; or
(ii) Has had its security clearance revoked or inactivated.
(6) Whenever otherwise instructed by the authority responsible for the security classification.
(c) The Government agency that provided classified information to a GSA contractor is responsible for the return of the information.
Subpart 504.5 – Electronic Commerce in Contracting
504.500 [Reserved]
504.502 Policy.
Use of electronic signatures is encouraged and can be used to sign and route documents in GSA’s IT systems to contractually obligate funds. The method of authentication used for electronic signatures shall be consistent with the level (1-4) determined from the e-authentication risk assessment in accordance with OMB M-04-04, E-authentication Guidance for Federal Agencies, and the respective technology safeguards applicable to that level or risk from National Institute of Standards and Technology 800-63, Electronic Authentication Guideline.
504.570 [Reserved]
Subpart 504.6 – Contract Reporting
504.605-70 Federal Procurement Data System – Public access to data.
(a) The FPDS database. The General Services Administration awarded a contract for creation and operation of the Federal Procurement Data System (FPDS) database. That database includes information reported by departments and agencies as required by FAR subpart 4.6. One of the primary purposes of the FPDS database is to provide information on Government procurement to the public.
(b) Fee for direct hook-up. To the extent that a member of the public requests establishment of real-time integration of reporting services to run reports from another application, a one-time charge of $2,500 for the original integration must be paid by the requestor. This one-time charge covers the setup and certification required for an integrator to access the FPDS database and for technical assistance to help integrators use the web services. The fee will be paid to the FPDS contractor and credited to invoices submitted to GSA by the FPDS contractor.
Subpart 504.11 – System for Award Management
504.1103 Procedures.
In addition to the requirements found in FAR 4.1103, prior to awarding a contractual instrument the contracting officer must –
(a) Verify that the prospective contractor’s legal business name, Doing-Business-As (DBA) name (if any), physical street address, and unique entity identifier, as found in the System for Award Management (SAM), match the information that will be included in the contract, order, or agreement resulting from the vendor’s quote or proposal. Correct any mismatches by having the vendor amend the information in the SAM and/or the quote or proposal.
(b) Ensure that the contractor’s address code exists in Pegasys and that it is SAM enabled with the contractor’s unique entity identifier number. This can be done by searching Pegasys records using the contractor’s Taxpayer Identification Number (TIN). If no code exists, request that a new address code be established by the Finance Center for SAM compliance.
(c) Ensure that the contractor’s identifying information is correctly placed on the contractual instrument, using special care to ensure that the legal name and “remit to” name match exactly. (Note: Lockbox names or numbers should not be used to replace the contractor’s name in the remittance block on the contractual instrument.)
(d) Unless one of the exceptions to registration in SAM applies (see FAR 4.1102(a)), the contracting officer must not award a contract to a prospective contractor who is not registered in SAM. If no exceptions are applicable, and the needs of the requiring activity allows for a delay in award, see FAR 4.1103(b)(1).
Subpart 504.13 – Personal Identity Verification of Contractor Personnel
504.1301 Policy.
Contracting officers must follow the procedures contained in CIO P2181.1 – GSA HSPD-12 Personal Identity Verification and Credentialing Handbook, which may be obtained from the CIO Office of Enterprise Solutions, to ensure compliance with Homeland Security Presidential Directive-12 (HSPD-12) “Policy for a Common Identification Standard for Federal Employees and Contractors,” Office of Management and Budget Memorandum M-05-24, and Department of Commerce FIPS PUB 201.
504.1303 Contract clause.
Insert the clause at 552.204-9, Personal Identity Verification Requirements, in solicitations and contracts when it is determined that contractor employees will require access to federally controlled facilities or information systems to perform contract requirements.
SUBCHAPTER B – COMPETITION AND ACQUISITION PLANNING
PART 505 [RESERVED]
PART 509 – CONTRACTOR QUALIFICATIONS
Subpart 509.1 – Responsible Prospective Contractors
509.105 Procedures.
509.105-1 Obtaining information.
FAR 9.105-1 lists a number of sources of information that a contracting officer may utilize before making a determination of responsibility. The contracting officer may request information directly from a prospective contractor using GSA Form 527, Contractor’s Qualifications and Financial Information, but only after exhausting other available sources of information.
509.105-2 Determinations and documentation.
(a) The contracting officer shall provide written notification to a prospective contractor determined not responsible. Include the basis for the determination. Notification provides the prospective contractor with the opportunity to correct any problem for future solicitations.
(b) Due to the potential for de facto debarment, the contracting officer shall avoid making repeated determinations of nonresponsibility based on the same past performance information.
(c) To provide for timely consideration of the need to institute action to debar a contractor, the contracting officer shall submit a copy of each nonresponsibility determination, other than those based on capacity or financial capability, to the Suspension and Debarment Official in the Office of Acquisition Policy.
509.106-2 Requests for preaward surveys.
Federal Supply Service (FSS). Contracting activities in FSS may use GSA Form 353, Performance Evaluation & Facilities Report, in lieu of SF 1403 through 1406. Complete Section I in accordance with instructions in 553.370-353-I.
Subpart 509.2 [Reserved]
Subpart 509.3 – First Article Testing and Approval
509.306 Solicitation requirements.
The clauses at FAR 52.209-3 and 52.209-4 do not cover all the solicitation requirements described in FAR 9.306. If a solicitation contains a testing and approval requirement, the contracting officer must address the requirements in FAR 9.306(d) and (f) through (j) in the solicitation’s Section H, special contract requirements.
509.308-1 Testing performed by the contractor.
In FSS solicitations and contracts that will require the contractor to perform testing, insert 552.209-72, Supplemental Requirements for First Article Approval – Contractor Testing, and FAR 52.209-3, Alternate I.
509.308-2 Testing performed by the Government.
In FSS solicitations and contracts that will have the Government responsible for first article testing, insert 552.209.73, Supplemental Requirements for First Article Approval – Government Testing, and FAR 52.209-4, Alternate I.
Subpart 509.4 – Debarment, Suspension, and Ineligibility
509.401 Applicability.
This subpart applies to all the following:
(a) Acquisitions of personal property, nonpersonal services, construction, and space in buildings.
(b) Acquisition of transportation services (Federal Management Regulation (FMR) Parts 102-117 and 102-118 (41 CFR parts 102-117 and 102-118)).
(c) Contracts for disposal of personal property (FMR Parts 102-36 through 102-38 (41 CFR parts 102-36 through 102-38)).
(d) Covered transactions as defined by 41 CFR part 105-68.
509.403 Definitions.
Fact-finding official, means the Suspension and Debarment Official or a designee.
Notice means a letter sent by certified mail, return receipt requested, to the last known address of a party, its counsel, or agent for service of process. In the case of a business, such notice may be sent to any partner, principal officer, director, owner or co-owner, or joint venturer. If no return receipt is received within 10 calendar days of mailing, receipt will then be presumed.
509.405 Effect of listing.
509.405-1 Continuation of current contracts.
(a) When a contractor appears as a current exclusion in the System for Award Management (SAM), consider terminating a contract under any of the following circumstances:
(1) Any circumstances giving rise to the debarment or suspension also constitute a default in the contractor’s performance of the contract.
(2) The contractor presents a significant risk to the Government in completing the contract.
(3) The conduct that provides the cause of the suspension, proposed debarment, or debarment involved a GSA contract.
(b) Before terminating a contract when a contractor appears as a current exclusion in the SAM, consider the following factors:
(1) Seriousness of the cause for debarment or suspension.
(2) Extent of contract performance.
(3) Potential costs of termination and reprocurement.
(4) Need for or urgency of the requirement, contract coverage, and the impact of delay for reprocurement.
(5) Availability of other safeguards to protect the Government’s interest until completion of the contract.
(6) Availability of alternate competitive sources to meet the requirement (e.g., other multiple award contracts, readily available commercial items.)
(c) The responsibilities of the agency head under FAR 9.405-1 are delegated to the Senior Procurement Executive.
509.405-2 Restrictions on subcontracting.
The responsibilities of the agency head under FAR 9.405-2(a) are delegated to the Senior Procurement Official.
509.406 Debarment.
509.406-1 General.
The Suspension and Debarment Official is the designee under FAR 9.406-1(c).
509.406-3 Procedures.
(a) Investigation and referral. (1) Refer to the Suspension and Debarment Official matters involving serious contract improprieties or performance deficiencies. Performance deficiencies that continue over a period of time or apply to more than one contract may warrant debarment consideration.
(2) Refer possible criminal or fraudulent activities to the Office of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste, Fraud, Abuse, and Corruption. If, after investigation, the OIG believes a cause for debarment exists, it will refer the matter to the Suspension and Debarment Official for consideration of debarment action.
(b) Reports. Include in referrals to the Suspension and Debarment Official a report that contains at least the following:
(1) The recommendation and supporting rationale.
(2) A list of parties to be considered for possible debarment, including the contractor, principals, and affiliates. Include last known home and business addresses, zip codes, and unique entity identifiers.
(3) A statement of facts.
(4) Copies of documentary evidence and a list of witnesses. Include addresses and telephone numbers. Determine their availability to appear at a fact-finding proceeding and identify the subject matter of their testimony.
(5) GSA’s acquisition history with the contractor. Include recent experience, copies of the pertinent contracts, and an explanation of impact debarment would have on GSA programs. OIG referrals do not require this explanation; the Suspension and Debarment Official will obtain the information directly from the contracting activity(s).
(6) A list of any known active or potential criminal investigations, criminal or civil proceedings, or administrative claims before the Board of Contract Appeals.
(c) Review. The Suspension and Debarment Official will review the report, and after coordinating with assigned legal counsel –
(1) Initiate debarment action;
(2) Decline debarment action;
(3) Request additional information; or
(4) Refer the matter to the OIG for further investigation and development of a case file.
(d) Decisionmaking process. (1) The Suspension and Debarment Official will provide:
(i) Notice of declinations, proposed debarments, and decisions to the referring activity.
(ii) Notice of proposed debarment to each party being considered for debarment.
(iii) Decision notices to each party after considering information in the administrative record and information and argument submitted by the affected party or parties.
(2) A party proposed for debarment:
(i) Has 30 calendar days after receipt of the notice to respond to the Suspension and Debarment Official or the debarment becomes final.
(ii) May request and receive a copy of the administrative record that was the basis for the proposed debarment. If information is withheld, the party will be notified and provided the reason.
(iii) May request the opportunity to present information and argument in person to the Suspension and Debarment Official. The Suspension and Debarment Official will schedule an oral presentation within 20 calendar days of receipt of the request, unless a longer period of time is requested by the party. An oral presentation is informal and a transcript usually is not made. The party may supplement the oral presentation with written information and arguments.
(iv) May identify to the Suspension and Debarment Official material facts in dispute and the bases. For an action other than one based on a conviction of civil judgment, a party may request review and a written finding by a fact-finding official.
(3) Following a review of the record and, if needed, a presentation by the contractor in opposition to the proposed action, the Suspension and Debarment Official will determine whether there is a genuine dispute of material fact. If so, the Suspension and Debarment Official will initiate the fact-finding process. The fact-finding official will:
(i) Establish a date for a fact-finding proceeding, normally to be held within 45 days of the determination of who will function as the fact-finding official.
(ii) Grant extensions for good cause.
(iii) Provide notice of the scheduled hearing.
(iv) Provide the parties with a schedule for exchange of documents and witness lists.
(v) Develop an official transcript of the fact-finding proceeding.
(vi) Provide the Government’s representative and the contractor with an opportunity to present evidence relevant to the facts at issue. The contractor may appear in person or through a representative.
(vii) Conduct hearings under rules consistent with FAR 9.406-3 pertaining to fact finding. Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure govern fact finding. Hearsay evidence may be pres