§ 2801.602-70 - Office of the Procurement Executive.

(a)(1) The contracting officer shall forward the proposed contract action to the Office of the Procurement Executive for review prior to execution of any contractual action which:

(i) Exceeds $50,000 and was solicited using other than full and open competition procedures, including amendments or modifications to these contracts which cause the total contract costs to exceed $50,000;

(ii) Exceeds $100,000, and was solicited using full and open competition procedures, including amendments or modifications to these contracts which cause the total contract costs to exceed $100,000; or

(iii) Is evaluated on the basis of system life costs and/or is evaluated on the basis of option pricing regardless of dollar value;

(2) For the purposes of this section contractual actions include all pre-award, award, and post-award contractual actions above the thresholds in paragraphs (a)(1) (i) through (iii) including, but not limited to modifications, ratifications, and options, but excluding orders from Federal Supply Schedules and orders from Basic Ordering Agreements. Review by the Office of the Procurement Executive is applicable to all organization elements in the Department, with the exception of the FBI as noted in this section. It is the responsibility of the FBI's Contract Review Board to ensure that procurement actions for goods and services are awarded in conformity with applicable statutes, regulations, and procedures. This exemption, however, does not exempt the FBI from the review by the Office of the Procurement Executive of all real property procurement actions above the thresholds cited in paragraphs (a)(1) (i) through (iii) of this section, or from other oversight responsibilities of the Office of the Procurement Executive, including Procurement Executive review and approval of justifications for other than full and open competition on contracts over $10 million.

(b) Prior to submission to the Procurement Executive, the legal officer for each Bureau procurement activity is responsible for reviewing and approving all such procurement actions for legal sufficiency.

(c) The AAG/A and/or the Procurement Executive may waive any requirements for preaward contract review, except those imposed by statute. Requests for waivers shall be submitted to the Procurement Executive in accordance with paragraph (d) of this section.

(d) A request for a waiver must be submitted in writing by the head of the contracting activity and include a detailed explanation as to why a waiver is required, as well as information explaining reasons why a contract or class of contracts cannot be reviewed on a preaward basis. Oral waivers may be requested and granted under circumstances of compelling urgency, but written documentation of the waiver shall be made as soon as time permits. All contract documents that are available at the time a waiver request is made must accompany the request for review. All available documents will be reviewed to assure that the award is legally sufficient prior to the granting of a waiver. A postaward review of the completed contract file is required. Waivers will not be granted near the end of a fiscal year for the purpose of obligating year end funds.

(e) In accordance with Attorney General Orders 1687-93 and 1688-93, the head of a Bureau may appeal a decision of the Procurement Executive to the Contract Appeals Panel (Panel), in writing, within 15 calendar days after receipt of the decision of the Procurement Executive. The Panel shall be composed of the Deputy Attorney General who shall serve as chairperson, the Associate Attorney General and the Assistant Attorney General for Administration. The Panel shall meet on an ad hoc basis as necessary and determined by the chairperson. When appealing a decision of the Procurement Executive, the head of the Bureau shall follow the procedures described in paragraphs (e) (1) through (4) of this section.

(1) The appeal file shall be submitted through the Office of the Procurement Executive (OPE) to the Deputy Attorney General as Chairperson of the Contract Appeals Panel. Submission of the appeal through the OPE is required so that the Procurement Executive may provide a written response to the issues raised in the appeal and, due to the ad hoc nature of the Contract Appeals Panel, provide a location for the collection and maintenance of appeal documents and files. The Procurement Executive shall forward the appeal file to the Chairperson within five working days of receipt.

(2) Content of the appeal file. The appeal file must be complete in that it fully addresses the issue(s) being appealed. The file shall include a copy of the proposed contract or other award action, documents relied upon by the contracting officer in taking the action under dispute, the Procurement Executive's decision and a statement of facts setting forth the basis on which the appeal is made. The statement of facts shall cite, where applicable, procurement regulations, statutes, or decisions by other authorities, such as GAO decisions, that support or form the basis of the appeal. A summary shall be provided stating the resolution requested by the Bureau. An original and three copies of the appeal file shall be submitted.

(3) The head of the Bureau shall also submit to the OPE, with the appeal file, the original contract file as submitted to the OPE for review.

(4) The Contract Appeals Panel, following review and consideration of the appeal shall issue its decision in writing to the head of the Bureau through the Office of the Procurement Executive and return, with the decision, all documents submitted by the Bureau. Unless the Attorney General directs that the matter be referred to him/her, the decision of the Panel will be the final Department of Justice position as to whether a particular procurement action complies with the applicable statute, regulation, policy or procedure.