[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Proposed Rules]
[Pages 1399-1418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-380]
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DEPARTMENT OF JUSTICE
48 CFR Chapter 28
Justice Acquisition Regulations; Rewrite of the Justice
Acquisition Regulation (JAR). Regarding: Implementation of the Federal
Acquisition Streamlining Act and the National Performance Review
Recommendations
AGENCY: Justice Management Division, Justice.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Department of Justice is proposing to rewrite 48 CFR
Chapter 28, the Justice Acquisition Regulations, in its entirety in
order to implement regulatory changes resulting from the Federal
Acquisition Streamlining Act and to further implement recommendations
of the National Performance Review. This effort will create a new JAR
that is simpler and less burdensome. This 1998 version of the JAR
supersedes the 1985 version and all amendments (Justice Acquisition
Circulars 85-1 through 97-1) issued prior to the date of publication of
a final rule.
DATES: Comments must be submitted on or before March 10, 1998.
ADDRESSES: Send written comments to Procurement Executive, 1331
Pennsylvania Avenue, NW., National Place Bldg., Room 1400, Washington,
DC 20530.
FOR FURTHER INFORMATION CONTACT:
Janis Sposato, Procurement Executive, Justice Management Division (202)
514-3103.
SUPPLEMENTARY INFORMATION: The Director, Office of Management and
Budget (OMB), by memorandum dated December 14, 1984, exempted agency
procurement regulations from review
[[Page 1400]]
under Executive Order 12291, except for selected areas. The exception
applies to this rule. In addition, the Department of Justice certifies
that this rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601-612) because the amendment sets forth, wholly,
internal departmental procedures. All information collection
requirements which require approval by OMB under the Paperwork
Reduction Act of 1980 (Pub. L. 96-511) have been submitted to OMB. In
those cases where an OMB control number has been assigned, the control
number is included in the regulation.
List of Subjects in 48 CFR Parts 2801 Through 2852
Government procurement.
Stephen R. Colgate,
Assistant Attorney General For Administration.
For the reasons set out in the preamble, Chapter 28 of Title 48 of
the Code of Federal Regulations is proposed to be revised as set forth
below.
CHAPTER 28--DEPARTMENT OF JUSTICE
SUBCHAPTER A--GENERAL
Part 2801--Department of Justice Acquisition Regulations System
Part 2802--Definitions of Words and Terms
Part 2803--Improper Business Practices and Personal Conflicts of
Interest
Part 2804--Administrative Matters
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
Part 2805--Publicizing Contract Actions
Part 2806--Competition Requirements
Part 2807--Acquisition Planning
Part 2808--Required Sources of Supplies and Services
Part 2809--Contractor Qualifications
Part 2811--Describing Agency Needs
Part 2812--Acquisition of Commercial Items
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
Part 2813--Simplified Acquisition Procedures
Part 2814--Sealed Bidding
Part 2815--Contracting By Negotiation
Part 2816--Types of Contracts
Part 2817--Special Contracting Methods
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
Part 2819--Small Business Programs
Part 2822--Application of Labor Laws to Government Acquisitions
Part 2823--Environment, Conservation, Occupational Safety, and Drug-
Free Workplace
Part 2824--Protection of Privacy and Freedom of Information
Part 2825--Foreign Acquisition
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
Part 2828--Bonds and Insurance
Part 2829--Taxes
Part 2830--Cost Accounting Standards Administration
Part 2831--Contract Cost Principles and Procedures
Part 2832--Contract Financing
Part 2833--Protests, Disputes, and Appeals
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
Part 2834--Major System Acquisition
SUBCHAPTER G--CONTRACT MANAGEMENT
Part 2842--Contract Administration
Part 2845--Government Property
Part 2846--Quality Assurance
SUBCHAPTER H--CLAUSES AND FORMS
Part 2852--Solicitation Provisions and Contract Clauses
SUBCHAPTER A--GENERAL
PART 2801--DEPARTMENT OF JUSTICE ACQUISITION REGULATIONS SYSTEM
Subpart 2801.1--Purpose, Authority, Issuance
2801.101 Purpose.
Subpart 2801.2--Administration
2801.270-1 Revisions.
Subpart 2801.3--Agency Acquisition Regulations
2801.304 Agency control and compliance procedures.
Subpart 2801.4--Deviations From The FAR and JAR
2801.403 Individual deviations.
2801.404 Class deviations.
2801.470 Requests for class deviations.
Subpart 2801.6--Career Development, Contracting Authority, and
Responsibilities
2801.601 General.
2801.602 Contracting Officers.
2801602-3 Ratification of unauthorized commitments.
2801.603 Selection, appointment and termination of appointment.
2801.603-1 Department of Justice Acquisition Career Management
Program.
2801.603-3 Appointment.
Subpart 2801.70--Contracting Officer's Technical Representative
2801.7001-701 General.
2801.7001-702 Selection, appointment, and limitation of authority.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2801.1--Purpose, Authority, Issuance
2801.101 Purpose.
(a) The Justice Acquisition Regulations (JAR) in this chapter are
established to provide procurement regulations that supplement the
Federal Acquisition Regulation (FAR), 48 Code of Federal Regulations
(CFR), Chapter 1. As such, the regulations contained in the JAR will
include coverage of only those areas where agency implementation is
required by the FAR, or where Department of Justice (DOJ) policies and
procedures exist that supplement FAR coverage and directly affect the
contractual relationship between the Department and potential or
existing contractors. The JAR will not repeat FAR coverage.
(b) The FAR contains many references to agency procedures. If the
JAR does not include supplemental guidance under the corresponding part
or subpart, it is because the FAR language is considered to be
sufficient. In those instances where the JAR states ``in accordance
with bureau procedures'', it does not mean that the bureau must have a
procedure. It is intended that the bureau procedures are to be followed
if they exist; however, it does not mean that the bureau must have a
formal written procedure. Where both the JAR and bureau procedures do
not address a FAR subject, the FAR guidance is to be followed.
(c) The JAR is not a complete system of regulations and must be
used in conjunction with the FAR.
Subpart 2801.2--Administration
2801.270-1 Revisions.
In addition to changes published in the Federal Register, the JAR
will be amended by issuance of Justice Acquisition Circulars (JACs)
containing loose-leaf replacement pages which revise parts, subparts,
sections, subsections, paragraphs or subparagraphs. A vertical bar
(edit bar) at the beginning or end of a line indicates that a change
has been made within that line.
Subpart 2801.3--Agency Acquisition Regulations
2801.304 Agency control and compliance procedures.
Pursuant to FAR 1.304, the Procurement Executive (PE) is
responsible for ensuring that bureau acquisition regulations and
directives do not restrain the flexibilities found in the FAR. For this
reason, bureau acquisition regulations shall be forwarded to the PE
upon issuance. The PE reserves the right to revoke the regulations and
directives in this chapter if they are determined to be restrictive.
[[Page 1401]]
Subpart 2801.4--Deviations from the FAR and JAR
Sec. 2801.403 Individual deviations.
Individual deviations from the FAR or the JAR shall be approved by
the head of the contracting activity (HCA). A copy of the deviation
shall be included in the contract file. Copies of all deviations will
be provided to the PE.
Sec. 2801.404 Class deviations.
Requests for class deviations from the FAR or the JAR shall be
submitted to the PE. The PE will consult with the chairperson of the
Civilian Agency Acquisition Council, as appropriate, and send his/her
recommendations to the AAG/A. The AAG/A will grant or deny requests for
such deviations. For the purposes of this chapter, requests for
deviations involving basic ordering agreements, master type contracts,
or situations where multiple awards are made from one solicitation, are
considered to involve more than one contract and therefore considered
to be class deviation requests.
Sec. 2801.470 Requests for class deviations.
Requests for approval of class deviations from the FAR or the JAR
shall be forwarded to the PE. Such requests will be signed by the
Bureau Procurement Chief (BPC). Requests for class deviations shall be
submitted as far in advance as the exigencies of the situation permit
and shall contain sufficient written justification to evaluate the
request.
Subpart 2801.6--Career Development, Contracting Authority, and
Responsibilities
Sec. 2801.601 General.
(a) In accordance with Attorney General Order 1687-93, the
authority vested in the Attorney General with respect to contractual
actions, for goods and services, is delegated to the following
officials:
(1) Assistant Attorney General for Administration (for the offices,
boards, and divisions (OBDs);
(2) Director, Federal Bureau of Investigation;
(3) Director, Bureau of Prisons;
(4) Commissioner, Federal Prison Industries;
(5) Commissioner, Immigration and Naturalization Service;
(6) Administrator, Drug Enforcement Administration;
(7) Assistant Attorney General, Office of Justice Programs;
(8) Director, U.S. Marshals Service;
(9) Director, National Institute of Corrections; and
(10) Inspector General, Office of the Inspector General.
(b) The acquisition authority delegated to the officials in
2801.601(a) may be redelegated to subordinate officials as necessary
for the efficient and proper administration of the Department's
acquisition operations. Such redelegated authority shall expressly
state whether it carriers the power of redelegation of authority.
(c) The redelegation of contracting authority directly to specific
persons without regard for intermediate organizational levels only
establishes authority to represent the Government in its commercial
business dealings. It is not intended to affect the organizational
relationship between the contracting officers and higher administrative
and supervisory levels in the performance of their duties.
Sec. 2801.602 Contracting officers.
Sec. 2801.602-3 Ratification of unauthorized commitments.
The HCA may delegate the authority to ratify unauthorized
commitments to the chief of the contracting office, except for those
actions effected by his or her office. Dollar thresholds for
delegations made under this section will be determined by the HCA.
Copies of all ratifications are to be provided to the PE.
Sec. 2801.603 Selection, appointment and termination of appointment.
Sec. 2801.603-1 Department of Justice Acquisition Career Management
Program.
(a) Each Bureau Procurement Chief shall develop and manage an
acquisition career management program for contracting personnel in his
or her component, consistent and uniform with this section and the
Department of Justice Acquisition Procurement Career Management
Program.
(b) The program shall cover all contracting personnel in the
following categories:
(1) General Schedule (GS-1102) Contracting Series;
(2) Contracting officers, regardless of General Schedule Series,
with contracting authority above the simplified acquisition threshold;
(3) Purchasing Series (GS-1105), other individuals performing
purchasing duties and individuals with contracting authority between
the micro purchase and simplified acquisition thresholds.
(4) All Contracting Officer Representatives/Contracting Officer
Technical Representatives, or equivalent positions.
(c) The program shall include:
(1) Management information system. Standardized information on the
acquisition workforce will be collected and maintained. To the maximum
extent practicable, such data requirements shall conform to the
standards established by the Office of Personnel Management for the
Central Personnel Data File and shall be compatible with the Department
of Justice acquisition workforce management information system.
(2) Individual assessments and development plans for personnel in
the GS-1102 Contracting Series.
(i) An individual assessment by a supervisor of each covered
employee's state of competence to perform the full range of potential
duties of his or her job; and
(ii) An individual development plan to schedule classroom, on-the-
job training, or other training to develop the employee's skill level
to an appropriate level in each area of competence necessary to perform
his or her job.
(iii) Individual assessments and development plans should be
designed to fit the needs of the component, but they should be built
upon the units of competence and instruction prepared by the Federal
Acquisition Institute whenever feasible. Individual development plans
should attempt to bring the employee to an appropriate level of skill
in all necessary competencies in the field of procurement. In general,
a proficiency skill level of 3, as defined in Attachment 1 to OFPP
Policy Letter 92-3, shall be obtained for any contracting duty that is
actually required to be performed on the job. Individual assessments
and development plans should be reviewed annually and revised as
appropriate, until the employee reaches the full competency level of
his or her job.
(iv) Employees who perform only purchasing duties, regardless of
occupational series, shall be required to obtain the requisite level of
skill only in competencies involving simplified acquisitions. If the
employee's duties are expanded to include contracting duties, then
skill procurement competencies must be assessed and developed.
(v) Individual assessments of covered employee skills shall be
completed within 90 days of the employee's entry on duty.
(3) Mandatory training. Training shall be provided for the
identified categories of contracting personnel to meet the minimum
standards identified in OFPP Policy Letter 97-01.
(4) Skills currency. Contract Specialists (GS-1102) and contracting
officers with authority to obligate funds above the micropurchase
threshold that have satisfied the mandatory training
[[Page 1402]]
requirements, shall be provided the equivalent of at least 40 hours of
continuing procurement and acquisition related education and training
every two years for the purpose of maintaining the currency of
acquisition knowledge and skills.
(5) Program funding. Bureau Procurement Chiefs are responsible for
assessing the funding needs to provide for the education and training
of their acquisition workforce and requesting such funding in the
annual budget process.
2801.603-3 Appointment.
Contracting officers whose authority will be limited to micro-
purchases shall be appointed in writing and include any limitations to
that authority.
Subpart 2801.70--Contracting Officer's Technical Representative
2801.7001-701 General.
Contracting officers may appoint individuals selected by program
offices to act as authorized representatives in the monitoring and
administration of a contract. Such officials shall be designated as
Contracting Officers' Technical Representatives (COTRs).
2801.7001-702 Selection, appointment, and limitation of authority.
(a) COTR Standards Program. This subpart sets forth policies and
procedures for establishing standards for COTRs in DOJ. The program
sets forth minimum standards for individuals to be eligible for an
appointment as a COTR.
(b) Applicability. the eligibility requirements of this subpart
apply to all individuals who are designated by the contracting officer
as COTRs.
(c) Eligibility standards. To be determined eligible for an
appointment as a DOJ COTR, the following standards must be met:
(1) The candidate must attend and successfully complete a minimum
of a 16-hour basic COTR course; and
(2) The candidate must attend a minimum of 1 hour training
specifically in procurement ethics, either through courses offered
periodically by the Department, the bureaus, or a Government or
commercial vendor.
(d) Limitations. Each COTR appointment made by the contracting
officer shall clearly state that the representative is not an
authorized contracting officer and does not have the authority under
any circumstances to:
(1) Award, agree to award, or execute any contract, contract
modification, notice of intent, or other form of binding agreement;
(2) Obligate, in any manner, the payment of money by the
Government;
(3) Make a final decision on any contract matter which is subject
to the clause at FAR 52.233-1, Disputes; or
(4) Terminate, suspend, or otherwise interfere with the
contractor's right to proceed, or direct any changes in the
contractor's performance that are inconsistent with or materially
change the contract specifications.
(e) Termination. Termination of the COTR's appointment shall be
made in writing by the contracting officer and shall give the effective
date of the termination. The contracting officer shall promptly modify
the contract once a COTR termination notice has been issued. A
termination notice is not required when the COTR's appointment
terminates upon expiration of the contract.
(f) Waivers. No individual may serve as a COTR on any contract
without the requisite training and signed COTR certificate for the
file. In the rare event that there is an urgent requirement for a
specific individual to serve as a COTR and the individual has not
successfully completed the required training, the BPC may waive the
training requirements and authorize the individual to perform the COTR
duties, for a period of time not to exceed 120 days. The waiver will be
granted in accordance with bureau procedures.
PART 2802--DEFINITIONS OF WORDS AND TERMS
Subpart 2.1--Definitions
2802.101 Definitions.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2.1--Definitions
2802.101 Definitions.
Throughout this chapter, the following words and terms are used as
defined in this subpart unless the context in which they appear clearly
requires a different meaning, or a different definition is prescribed
for a particular part or portion of a part.
(a) Bureaus means contracting activities. (See contracting activity
in this subpart.)
(b) Bureau procurement chief means that supervisory official who is
directly responsible for supervising, managing and directing all
contracting offices of the bureau.
(c) Chief of the contracting office means that supervisory official
who is directly responsible for supervising, managing and directing a
contracting office.
(d) Contracting activity means a component within the Department
which has been delegated procurement authority to manage contracting
functions associated with its mission. See 2801.601(a).
(e) DOJ means the Department of Justice.
(f) Head of the contracting activity means those officials
identified in 2801.601(a) having responsibility for supervising,
managing, and directing the operations of the contracting activities.
(g) JAR means the Department of Justice Acquisition Regulations.
(h) JMD means the Justice Management Division.
(i) OBD means the offices, boards, and divisions within the Justice
Department.
(j) PE means the Procurement Executive for the Department of
Justice.
PART 2803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 2803.1--Safeguards
2803.101-3 Agency regulations.
2803.104 Procurement integrity.
2803.104-10 Violations or possible violations.
2803.104-70 Ethics program training requirements.
Subpart 2803.2--Contractor Gratuities to Government Personnel
2803.203 Reporting suspected violations of the Gratuities clause.
2803.204 Treatment of violators.
Subpart 2803.3--Reports of Suspected Antitrust Violations
2803.301 General.
Subpart 2803.9--Whistleblower Protections for Contractor Employees
2803.905 Procedures for investigating complaints.
2803.906 Remedies.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2803.1--Safeguards
2803.101-3 Agency regulations.
The DOJ regulations governing Standards of Conduct are contained in
5 CFR part 2635.
2803.104 Procurement integrity.
2803.104-10 Violations or possible violations.
(a) Upon receipt of information of a violation or possible
violation of section 27 of the Act, the contracting officer must do the
following:
(1) Refer the matter to the office of the Inspector General or
other office designated in Attorney General Order 1931-94; and,
[[Page 1403]]
(2) Make the determination required by FAR 3.104-10(a) and followed
the procedures prescribed therein.
(b) The individual referenced in FAR 3.104-10(a)(1) is the Bureau
Procurement Chief.
(c) The HCA must follow the criteria contained in FAR 3.104-10(g)
when designating authority under this subpart.
(d) The HCA, or designee, shall refer information regarding actual
or possible violations of section 27 of the Act to the Office of the
Inspector General or other office designated in Attorney General Order
1931-94 for guidance before taking action.
(e) If the HCA, or designee, receiving the information of a
violation, or possible violation, determines that award is justified by
urgent and compelling circumstances, or is otherwise in the interest of
the Government, then the contracting officer may be authorized to award
the contract after notification to the Office of the Inspector General
or other office designated in Attorney General Order 1931-94.
(f) The contracting officer will be advised, or directed by the
HCA, or designee, as to the action to be taken. The types of actions
that would normally be taken when a violation has occurred that
affected the outcome of a procurement are listed in FAR 3.104-11(d).
(g) The PE shall be advised of all instances where violations have
been determined to have occurred. Information must describe the
violation as well as actions taken.
2803.104-70 Ethics program training requirements.
It is the responsibility of the bureaus to provide training for
``procurement officials'' concerning the requirements of FAR 3.104. The
bureau procurement training efforts should be coordinated with the
Department's Ethics Official, who is responsible for developing agency
ethics training plans, to include briefings on ethics and standards of
conduct for employees who are contracting officers and procurement
officials. The Ethics Official should be contacted directly to schedule
training.
Subpart 2803.2--Contractor Gratuities to Government Personnel
2803.203 Reporting suspected violations of the Gratuities clause.
DOJ personnel shall report suspected violations of the Gratuities
clause to the contracting officer or chief of the contracting office in
writing. The report shall clearly state the circumstances surrounding
the incident, including the nature of the gratuity, the behavior or
action the gratuity was to influence, and the persons involved. The
contracting officer, after review, shall forward the report along with
his or her recommendations regarding the treatment of the violation in
accordance with FAR 3.204(c) to the HCA or designee.
2803.204 Treatment of violations.
(a) The HCA or designee shall determine whether adverse action
against the contractor in accordance with FAR 3.204(c) should be taken.
In reaching a decision, the HCA or designee shall consult with the
contracting activity's legal advisor and the Office of the Inspector
General or other office designated in Attorney General Order 1931-94.
(b) Prior to taking any action against the contractor the HCA or
designee shall allow the contractor the opportunity to present opposing
arguments in accordance with FAR 3.204(b).
(c) The PE shall be advised of all instances where violations have
been determined to have occurred. Information must describe the
violation as well as actions taken.
Subpart 2803.3--Reports of Suspected Antitrust Violations
2803.301 General.
Reports of suspected antitrust violations shall be referred to the
AG and PE in accordance with bureau procedures.
Supart 2803.9--Whistleblower Protections for Contractor Employees
2803.905 Procedures for investigating complaints.
(a) The Inspector General shall conduct an investigation and
provide a written report of findings to the HCA.
(b) The HCA will ensure that the Inspector General provides the
report of finding as specified in FAR 3.905(c).
(c) the complainant and contractor shall be afforded the
opportunity to submit a written response to the report of findings
within 30 days to the HCA. Extensions of time to file a written
response may be granted by the HCA.
(d) The HCA may at any time request additional investigative work
be done on the complaint.
2803.906 Remedies.
(a) Upon determination that a contractor has subjected one of its
employees to a reprisal for providing information, the HCA may take one
or more actions specified in FAR 3.906(a).
(b) Whenever a contractor fails to comply with an order, the HCA
shall request an action be filed for enforcement of such order in the
United States district court.
PART 2804--ADMINISTRATIVE MATTERS
Subpart 2804.4--Safeguarding Classified Information Within Industry
2804.402 General.
2804.403 Responsibilities of contracting officers.
2804.470 Contractor Personnel Security Program.
2804.470-1 Policy.
2804.470-2 Responsibilties.
Subpart 2804.5--Electronic Commerce in Contracting
2804.506 Exemptions.
Subpart 2804.6--Contract Reporting
2804.602 Federal Procurement Data System.
Subpart 2804.8--Government Contract Files
2804.805 Storage, handling, and disposal of contract files.
Subpart 2804.9--Information Reporting to the Internal Revenue Service
2804.901 Definitions.
2804.902 Contract information.
2804.970 Special reporting exceptions.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2804.4--Safeguarding Classified Information Within Industry
2804.402 General.
Classified acquisitions or contracts which require access to
classified material, as defined in FAR 4.401, for their performance
shall be subject to the policies, procedures, and instructions
contained in departmental regulations in this chapter and shall be
processed in a manner consistent with those regulations.
2804.403 Responsibilities of contracting officers.
For proposed solicitations and contracts which may require access
to classified material or where guard services are assigned to
safeguard departmental activities in possession of classified
information, the contracting officer will consult with the COTR and the
Director, Security and Emergency Planning Staff, JMD, to determine the
appropriate security measures to safeguard such material and
information.
2804.470 Contractor Personnel Security Program.
2804.470-1 Policy.
It is the policy of the Department of Justice that all acquisitions
which allow
[[Page 1404]]
unescorted contractor access to Government facilities or sensitive
information contain, as appropriate, requirements for appropriate
personnel security screening by the contractor. To the maximum extent
practicable, contractors shall be made responsible for the performance
of personnel security screening. The personnel security screening may
vary from one acquisition to another, depending upon the type, context,
duration and location of the work to be performed. Classified contracts
are exempted from the requirements of this section because they are
governed by he requirements of Executive Order 12829 (January 6, 1993).
2804.470-2 Responsibilities.
(a) The primary acquiring component, together with its Security
Program Manager, is responsible for providing the contracting officer
with the appropriate contractor personnel security screening
requirements (including waiver requirements, if appropriate) to be
included in the statement of work.
(b) The contracting officer is responsible for including in the
contract file for all such acquisitions, a certification made by the
responsible Security Program Manager that the Personnel security
requirements of the contract are adequate to ensure the security of
Departmental operations, information and personnel.
(c) The Security Program Manager for the acquiring component is
responsible for monitoring and ensuring that the contractor personnel
security requirements of the contract are accomplished.
(d) For purposes of this section, the term Contracting Officer
includes anyone empowered to place orders under Blanket Purchase
Agreements (BPA) or any other existing contract vehicle and/or through
the use of the government-wide commercial purchase card.
Subpart 2804.5--Electronic Commerce in Contracting
2804.506 Exemptions.
Pursuant to FAR 4.506(b), all determinations that FACNET processing
is not cost-effective or practicable for the contracting office, or
portions thereof, shall be initiated by the HCA and submitted to the PE
for processing to the Attorney General for signature.
Subpart 2804.6--Conract Reporting
2804.602 Federal Procurement Data System.
(a) Federal Procurement Data System (FPDS) reports shall be
submitted to the Procurement Policy and Review Group (PPRG) within 21
days of the close of each of the first three quarters of the fiscal
year and within 30 days after the close of the fourth quarter. Specific
preparation procedures are contained in the FPDS Reporting Manual and
the Product and Service Code Manual.
(b) Bureaus shall submit their annual summary subcontract reports,
together with copies of their Standard Form 295 to PPRG, and enter
their summary subcontract data on-line to GSA, not later than February
15th of the following year.
(c) BPCs shall provide to the PE, the name, office, mailing
address, and telephone number of the individual who will provide day-
to-day operational contact within the bureau for the implementation of
the FPDS. Changes and updates shall be forwarded to PPRG within 10 days
after they occur. It is the responsibility of the bureau contacts to
ensure that all actions are reported and submitted to PPRG in a timely
manner and that all statistics and reports are accurate, current, and
complete. BPCs shall be responsible for validating the data.
Subpart 2804.8--Government Contract Files
2804.805 Storage, handling, and disposal of contract files.
In accordance with FAR 4.805, each bureau shall prescribe
procedures for the handling, storage, and disposing of contract files.
Subpart 2804.9--Information Reporting to the Internal Revenue
Service
2804.901 Definitions.
Classified contract, as used in this subpart, means a contract such
that the fact of its existence or its subject matter has been
designated and clearly marked or clearly represented, pursuant to the
provisions of Federal law or an Executive Order, as requiring a
specific degree of protection against unauthorized disclosure for
reasons of national security.
Confidential contract, as used in this subpart, means a contract,
the reporting of which to the Internal Revenue Service (IRS) as
required under 26 U.S.C. 6050M, would interfere with the effective
conduct of a confidential law enforcement activity, such as contracts
for sites for undercover operations or contracts with informants, or
foreign counterintelligence activity.
2804.902 Contract information.
(a) Pursuant to FAR 4.902, the HCA, or delegate, shall certify to
the PE, in the format specified in this section, under penalty of
perjury, that such official has examined the information submitted by
that bureau as its FPDS data, that the data has been prepared pursuant
to the requirements of 26 U.S.C. 6050M, and that, to the best of such
official's knowledge and belief it is compiled from bureau records
maintained in the normal course of business for the purpose of making a
true, correct and complete return as required by 26 U.S.C. 6050M.
(b) The following certification will be signed and dated by the
HCA, or delegate, and submitted with each bureau quarterly FPDS report
(as specified by 2804.602).
Certification
I, ________ (Name), ________ (Title) under the penalties of
perjury have examined the information to be submitted by ________
(Bureau) to the Procurement Executive, for making information
returns on behalf of the Department of Justice to the Internal
Revenue Service, and certify that this information has been prepared
pursuant to the requirements of 26 U.S.C. 6050M and that it is to
the best of my knowledge and belief, a compilation of bureau records
maintained in the normal course of business for the purpose of
providing true, correct and complete returns as required by 26
U.S.C. 6050M.
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
Date
(c) The PE will certify the consolidated FPDS data for the
Department, transmit the data to the Federal Procurement Data Center
(FPDC) and authorize the FPDC to make returns to the IRS on behalf of
the agency.
2804.970 Special reporting exceptions.
(a) The Technical and Miscellaneous Revenue Act of 1988 (Pub. L.
100-647) amended 26 U.S.C. 6959M to allow exceptions to the reporting
requirements for certain classified or confidential contracts.
(b) The head of the agency has determined that the filing of
information returns, as required by 26 U.S.C. 6050M, on confidential
contracts, which involve law enforcement or foreign counterintelligence
activities, would interfere with the effective conduct of those
confidential law enforcement or foreign counterintelligence activities,
and that the special reporting exceptions added to 26 U.S.C. 6050M by
The Technical and Miscellaneous
[[Page 1405]]
Revenue Act of 1988 apply to these types of contracts.
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
PART 2805--PUBLICIZING CONTRACT ACTIONS
Subpart 2805.2--Synopses of Proposed Contract Actions
2805.201-70 Departmental notification.
Subpart 2805.3--Synopses of Contract Awards
2805.302-70 Departmental notification.
Subpart 2805.5--Paid Advertisements
2805.502 Authority.
2805.503-70 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2805-2--Synopses of Proposed Contract Actions
2805.201-70 Departmental notification.
(a) A copy of each synopsis of a proposed contract action sent to
the Department of Commerce, shall be furnished to the Director, Office
of Small and Disadvantaged Business Utilization (OSDBU), Justice
Management Division (JMD).
(b) Contracting officers shall document, in the contract file, that
a copy of the notice has been forwarded to the OSDBU. A ``cc'' to the
OSDBU on the file copy of the Commerce Business Daily (CBD) notice
shall be considered adequate documentation.
Subpart 2805.3--Synopses of Contract Awards
2805.302-70 Departmental notification.
(a) The contracting officer shall forward a copy of the synopsis of
contract award, as prepared under FAR 5.302, to the Director, OSDBU,
JMD.
(b) Contracting officers shall document in the contract file that a
copy of the notice has been forwarded to the OSDBU. A ``cc'' to the
OSDBU on the file copy of the CBD notice shall be considered adequate
documentation.
Subpart 2805.5--Paid Advertisements
This subpart provides policies and procedures for the procurement
of paid advertising as covered by 5 U.S.C. 302, 44 U.S.C. 3701, 3702,
and 3703, and Title 7, Chapter 5-25.2, General Accounting Office Policy
and Procedures Manual for Guidance of Federal Agencies.
2805.502 Authority.
(a) Authorization for paid advertising is required for newspapers
only. Pursuant to 28 CFR 0.14, the authority to approve publication of
paid advertisements in newspapers has been delegated to the officials
listed in 2801.601(a). This authority may be redelegated as
appropriate.
(b) Authority to purchase paid advertising must be granted in
writing by an official delegated such authority. No advertisement,
notice, or proposal will be published prior to receipt of advance
written authority for such publication. No voucher for any such
advertisement or publication will be paid unless there is presented,
with the voucher, a copy of such written authority. Authority shall not
be granted retroactively.
2805.503-70 Procedures.
(a) Agency Officials exercising the authority delegated by 2805.502
(a) and (b) shall do so in accordance with the procedures set forth in
FAR 5.503 and those set forth in this subsection.
(b) Requests for procurements of advertising shall be accompanied
by written authority to advertise or publish which sets forth
justification and includes the names of newspapers or journals
concerned, frequency and dates of proposed advertisements, estimated
cost, and other pertinent information.
(c) Paid advertisements shall be limited to publication of
essential details of invitations for bids and requests for proposals
including those for the sale of personal property and for the
recruitment of employees.
(d) Procedures for payment of vouchers are contained in Title 7,
Chapter 5-25.2, General Accounting Office Policy and Procedures Manual
for Guidance of Federal Agencies.
PART 2806--COMPETITION REQUIREMENTS
Subpart 2806.3--Other Than Full and Open Competition
2806.302 Circumstances permitting other than full and open
competition.
2806.302-7 Public interest.
2806.302-70 Determination and findings.
2806.303 Justifications.
2806.303-1 Requirements.
2806.303-2 Content.
2806.304 Approval of the justification.
Subpart 2806.5--Competition Advocates
2806.501 Requirement.
2806.502 Duties and responsibilities.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2806.3--Other than Full and Open Competition
2806.302 Circumstances permitting other than full and open
competition.
2806.302-7 Public interest.
2806.302-70 Determination and findings.
(a) Procedure. The determination and findings (D&F) required by FAR
6.302-7(c)(1) shall be prepared in the format provided in paragraph (b)
of this subsection. The original D&F and documentation supporting the
use of this exception to the requirement for full and open competition
shall be submitted to PPRG, JMD, for concurrence and coordination to
the Attorney General for signature.
(b) Format. The following format shall be used for the D&F:
Department of Justice, Washington, DC 20530, Determination and
Findings
Authority To Use Other Than Full and Open Competition:
Upon the basis of the following findings and determination,
which I hereby make pursuant to the authority of 41 U.S.C.
253(c)(7), as implemented by FAR 6.302-7, it is in the public
interest to provide for other than full and open competition in the
contract action described below.
Findings:
1. The (1) purposes to enter into a contract for the acquisition
of (2).
2. Use of the authority cited above is necessary and in the
public interest for the following reasons: (3)
Determination
For the reasons described above, it is necessary and in the
public interest to use other than full and open competition in the
proposed acquisition.
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
Date
Notes:
(1) Name of contracting activity.
(2) Brief description of supplies or services.
(3) Explain the need for use of the authority.
2806.303 Justification.
2806.302-1 Requirements.
Pursuant to FAR 6.303-1(d), a copy of the justification shall be
forwarded through the Department's Competition Advocate to the
Department's point of contact with the Office of the United States
Trade Representative.
2806.303-2 Content.
In addition to the information required by FAR 6.303-2,
justifications requiring the approval of the PE shall contain the
following documents:
(a) A written Acquisition Plan as required by FAR 7.102, and part
2807 of
[[Page 1406]]
this chapter. If a plan was not prepared, explain why planning was not
feasible or accomplished.
(b) A copy of the CBD announcement or proposed announcement in
accordance with the requirements of FAR 5.203.
(c) As part of the description of the supplies or services required
in FAR 6.303-2, the justification shall include the statement of need
as submitted by the requiring activity and any subsequent changes or
revisions to the specifications.
(d) Any additional documentation that may be unique to the proposed
procurement and is relevant to the justification.
2806.304 Approval of the justification.
(a) All justifications for contract actions over the contracting
officer's approval dollar threshold shall be submitted to the BPC for
concurrence before being forwarded to the contracting activity
competition advocate for approval. Justifications requiring approval by
the PE shall be further submitted for the concurrence of the
contracting activity competition advocate and the HCA, or designee,
before being forwarded to the PE for approval.
(b) After approval by the PE, the signed original will be returned
to the contracting activity and one copy will be retained by the PPRG,
JMD.
(c) Pursuant to FAR 6.304(c), a class justification for other than
full and open competition shall be approved in accordance with bureau
procedures.
Subpart 2806.5--Competition advocates
2806.501 Requirement.
In accordance with FAR 6.501:
(a) The Assistant Director, Procurement Policy and Review Group,
Management and Planning Staff, Justice Management Division, has been
designated as the Competition Advocate for the Department of Justice.
(b) The agency head will appoint, in each bureau, an official to be
the contracting activity competition advocate. The contracting activity
competition advocates shall be vested with the overall responsibility
for competition activities within their contracting activity. No
individual in the contracting office at or below the level of chief of
the contracting office may serve as the contracting activity
competition advocate. An individual at any level above the BPC may
serve as contracting activity competition advocate.
2806.502 Duties and responsibilities.
In addition to the duties and responsibilities set forth in FAR
6.502(b) and elsewhere in this chapter, contracting activity
competition advocates shall:
(a) Actively enforce the Department's Competition Advocacy Program
within the contracting activity and ensure that systems are established
for the effective internal control of contracting activity functions
and activities which implement the Department's Competition Advocacy
Program.
(b) Implement specific goals and objectives to enhance competition
and the acquisition of commercial items.
(c) Prepare and submit to the DOJ Competition Advocate, by November
30 of each year, an annual report of competition advocacy activities
conducted during the prior fiscal year.
PART 2807--Acquisition Planning
Subpart 2807.1--Acquistion Plans
2807.102 Policy.
2807.102-70 Applicability.
2807.103 Agency-head responsibilities.
2807.103-70 Other officials' responsibilities.
2807.105 Contents of written acquisition plans.
Subpart 2807.5--Inherently Governmental Functions
2807.503 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2807.1--Acquisition Plans
2807.102 Policy.
(a)(1) In accordance with FAR 7.1, DOJ contracting activities shall
perform acquisition planning and conduct market research for all
acquisitions in order to promote and provide for:
(i) Full and open competition (see FAR part 6);
(ii) Maximum practicable competition for those acquisitions where
full and open competition is not required by FAR part 6; and
(iii) The acquisition of commercial items or, when commercial items
are not available, nondevelopmental items to the maximum extent
practicable.
(2) The degree of planning and market research may vary, depending
on such factors as the acquisition's size, scope and complexity.
(b) Acquisition planning shall be the joint responsibility of both
the contracting and program offices. All acquisition plans shall be
prepared sufficiently in advance of solicitation release dates to
ensure that requirements are presented in a way that promotes full and
open competition and provides sufficient time for the identification
and resolution of impediments that could delay the acquisition or lead
to increased cost or technical risk.
2807.102-70 Applicability.
(a) Planning commensurate with the complexity and dollar value of
the individual requirement shall be performed for all acquisitions,
except for those acquisitions listed in paragraph (c) of this
subsection which may be exempt from the planning process. Heads of
contracting activities may authorize the use of oral plans for simple
and/or small dollar acquisitions. When oral plans are used, the file
should be documented with the name of the individual who approved the
plan.
(b) Written acquisition plans shall be prepared for all major
systems acquisitions as defined in 2834.002.
(c) The following types of acquisitions may be exempt from the
acquisition planning program:
(1) Architect-engineering services;
(2) Unsolicited proposals (when deemed innovative and unique in
accordance with FAR 15.5);
(3) Regulated utility services where services are available from
only one source;
(4) Acquisitions made from or through other Government agencies;
and
(5) Contract modifications which exercise an option or add funds to
an incrementally funded contract (provided there is an approved
acquisition planning document for the original action and there is no
significant deviation from that plan).
2807.103 Agency-head responsibilities.
The AAG/A may establish acquisition planning criteria and
thresholds for those bureaus who:
(a) Fail to allow ample time for conducting competitive
acquisitions;
(b) Develop a pattern of awarding urgent requirements that
generally restrict competition; and
(c) Fail to identify identical or like requirements that can be
combined under one solicitation and miss opportunities to obtain lower
costs through volume purchasing, reduce administrative costs in
processing one contract action versus multiple actions, and standardize
goods and services.
2807.103-70 Other officials' responsibilities.
(a) In accordance with FAR 7.1, the HCA shall develop an
acquisition planning program for all acquisitions to ensure that its
needs are met in the most effective, economical, and timely manner.
[[Page 1407]]
(b) Heads of contracting activities have the flexibility to develop
programs that are best suited to their individual needs. Criteria and
thresholds shall be established at which increasingly greater detail
and formality in the planning process is required. DOJ components are
encouraged to keep paperwork to a minimum and to put a premium on
simplicity.
(c) HCAs shall ensure that, during the acquisition planning phase,
requirements personnel consider the use of:
(1) The metric system of measurement consistent with 15 U.S.C.
2205(b); and
(2) Environmentally preferable and energy-efficient products and
services.
2807.105 Contents of written acquisition plans.
(a) HCAs shall prescribe format and content of acquisition planning
documents that are commensurate with the complexity and dollar value of
the individual acquisition (sample acquisition planning documents for
both simple and complex acquisitions will be made available by PPRG,
JMD, and may be used or modified as appropriate).
(b) HCAs shall include, at a minimum, the content elements at FAR
7.105 and 106 for all major systems acquisitions as defined in
2834.002.
Subpart 2807.5--Inherently Governmental Functions
2807.503 Policy.
The requirements official shall provide the contracting officer,
concurrent with the transmittal of the statement of work (or
modification thereof), a written determination that none of the
functions to be performed are inherently governmental. Any disputes
concerning this determination shall be resolved by the contracting
officer, after consultation with the requirements official. The
contracting officer's determination shall be final.
PART 2808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 2808.8--Acquisition of Printing and Related Supplies
2808.802 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2808.8--Acquisition of Printing and Related Supplies
2808.802 Policy.
The Director, Facilities and Administrative Services Staff, has
been designated to serve as the central printing authority for the
Department.
PART 2809--CONTRACTOR QUALIFICATIONS
Subpart 2809.4--Debarment, Suspension, and Ineligibility
2809.402 Policy.
2809.404 List of parties excluded from Federal procurement and
nonprocurement programs.
2809.405 Effect of listing.
2809.405-1 Continuation of current contracts.
Subpart 2809.5--Organizational and Consultant Conflict of Interest
2809.503 Waiver.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2809.4--Debarment, Suspension, and Ineligibility
2809.402 Policy.
Contracting activities shall:
(a) Consider debarment or suspension of a contractor when cause is
shown as listed under FAR 9.406-2 and FAR 9.407-2. Contracting staffs
should consult with their appropriate legal counsel prior to making a
decision to initiate debarment or suspension proceedings. If a
determination is made that available facts do not justify beginning
debarment or suspension proceedings, the file should be documented
accordingly. This determination should be subject to reconsideration if
new information or additional fact-finding so justifies.
(b) If the decision is made to initiate debarment and/or suspension
of a contractor, immediately prepare a notice in accordance with FAR
9.046-3(c) or FAR 9.407-3(c). The draft notice, along with the
administrative file containing all relevant facts and analysis shall be
forwarded to the PE, as the debarring and suspending official,
following review by the activity's legal counsel and BPC.
(c) The PE shall:
(1) Review the notice and administrative file for sufficiency and
provide for review by other DOJ officials as considered appropriate;
(2) If it is determined that action is warranted, give the
contractor prompt notice of the proposed debarment or suspension, in
accordance with FAR 9.406-3(c) or FAR 9.407-3(c);
(3) Direct additional fact-finding as necessary when material facts
are in dispute.
(4) Notify the contractor of the final decision to debar or
suspend, including a decision not to debar or suspend, in accordance
with FAR 9.406-3(c) and FAR 9.407-3(c).
2809.404 List of parties excluded from federal procurement and
nonprocurement programs.
(a) The PE shall:
(1) Provide GSA notification of the information set forth in FAR
9.404(b) within five working days after debarring or suspending a
contractor or modifying or rescinding such an action.
(2) Maintain agency-wide records of debarred or suspended
contractors in accordance with FAR 9.404.
(b) Contracting activities shall provide an effective system to
ensure that contracting staff consult the ``List of Parties Excluded
from Federal Procurement and Nonprocurement Programs'' prior to
soliciting offers from, awarding or extending contracts to, or
consenting to subcontracts with contractors on the list.
2809.405 Effect of listing.
(a) Contractors debarred, suspended, or proposed for debarment are
excluded from receiving contracts, and bureaus shall not solicit offers
from, award contracts to, or consent to subcontracts with these
contractors, unless the HCA determines that there is a compelling
reason for such action and the PE approves such determinations.
(b) Bids received from any listed contractor in response to an
invitation for bids shall be entered on the abstract of bids, and
rejected unless the HCA determines in writing that there is a
compelling reason to consider the bid and the PE approves such action.
(c) Proposals, quotations, or offers received from any listed
contractor shall not be evaluated for award or included in the
competitive range, nor shall discussions be conducted with a listed
offeror during a period of ineligibility, unless the HCA determines in
writing that there is a compelling reason to do so and the PE approves
such action.
2809.405-1 Continuation of current contracts.
(a) In accordance with FAR 9.405-1, contracting activities may
continue contracts or subcontracts in existence at the time a
contractor is suspended or debarred unless it is determined that
termination of the contract is in the best interest of the Government.
In making this determination, contracting activities shall consider the
seriousness of the act or omission leading to the debarment or
suspension, the effect of debarment or suspension on the contractor's
ability to continue operations, and the Department's ability to
safeguard its interests and receive satisfactory performance.
(b) Contracting activities shall not renew or otherwise extend the
duration
[[Page 1408]]
of current contracts, or consent to subcontracts, with contractors
debarred, suspended, or proposed for debarment, unless the HCA states,
in writing, the compelling reasons for renewal or extension and the PE
approves such action.
Subpart 2809.5--Organizational and Consultant Conflicts of Interest
2809.503 Waiver.
The HCA may waive any general rule or procedure of FAR 9.5 by
determining that its application in a particular situation would not be
in the Government's interest.
PART 2811--DESCRIBING AGENCY NEEDS
2811.001 Definitions.
2811.002 Policy.
Subpart 2811.1--Selecting and Developing Requirements Documents
2811.103 Market acceptance.
2811.104-70 Brand-name or equal description.
Subpart 2811.6--Priorities and Allocations
2811.603 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
2811.001 Definitions.
Dual systems means the use of both inch-pound and metric systems.
For example, an item is designed, produced and described in inch-pound
values with soft metric values also shown for information or comparison
purposes.
Hybrid systems means the use of both inch-pound and standard metric
values in specifications, standards, supplies, and services; e.g., an
engine with internal parts in metric dimensions and external fittings
or attachments in inch-pound dimensions.
Metric system means the International System of Units established
by the General Conference of Weights and Measures in 1960.
Soft metric means the result of mathematical conversion of inch-
pound measurements to metric equivalents in specifications, standards,
supplies, and services. The physical dimensions are not changed.
2811.002 Policy.
Consistent with the policy expressed in FAR 11.002(b),
solicitations must include specifications and purchase descriptions
stated in metric units of measurement whenever metric is the accepted
industry system. Whenever possible, commercially developed metric
specifications and internationally, or domestically developed voluntary
standards, using metric measurements, must be adopted. While an
industry is in transition to metric specifications, solicitations must
include requirements documents stated in soft metric, hybrid, or dual
systems, except when impractical or inefficient.
Subpart 2811.1--Selecting and Developing Requirements Documents
2811.103 Market acceptance.
Pursuant to FAR 11.103, the HCA or designee at a level not lower
than the BPC has the authority to require offerors to demonstrate that
the items offered meet the criteria set forth in FAR 11.103(a).
2811.104-70 Brand-name or equal description.
When a brand-name or equal description is used, the clause set
forth in 2852.211-70, Brand-Name or Equal, shall be inserted into the
solicitation.
Subpart 2811.6--Priorities and Allocations
2811.603 Procedures.
The PE is the agency official delegated authority to exercise
priority authority on behalf of the Department. Any request for a
priority rating on a contract or order must be submitted to PPRG, JMD,
in accordance with the procedures in this subpart.
(a) The requesting activity shall submit, to the PE, a description
of the supplies or services requiring a priority rating and a complete
justification for the necessity of a rated order including the method
and type of contract and the anticipated award date. The justification
must also state the level of priority rating requested and comply with
the requirements of the Defense Priorities and Allocations System.
(b) Upon receipt, the PPRG shall review the request for
completeness and establish appropriate liaison with the Department of
Commerce (DOC), the administering agency. Depending on the nature of
the requirement, the PPRG may schedule a meeting with DOC officials to
present the proposal. In such cases, a representative from the
requiring activity may be requested to attend.
(c) DOJ activities requesting rated orders that concern classified
material shall call PPRG before submitting their request to ensure
appropriate transmission and handling between the requesting activity
and PPRG.
PART 2812--ACQUISITION OF COMMERCIAL ITEMS
Subpart 2812.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
2812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2812.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Items
2812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Pursuant to FAR 12.302(c), the HCA or designee at a level not lower
than the BPC is authorized to approve clauses or additional terms or
conditions for inclusion in solicitations or contracts for commercial
items that are inconsistent with customary commercial practices.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 2813--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 2813.1--General
2813.103 Policy--Purchases at or below the micro-purchase
threshold.
Subpart 2813.4--Imprest Fund
2813.401 General.
Subpart 2813.5--Purchase Orders
2813.505 Purchase order and related forms.
Subpart 2813.70--Certified Invoice Procedure
2813.7001 Policy.
2813.7002 Procedure.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2813.1--General
2813.103 Policy--Purchases at or below the micro-purchase threshold.
To the maximum extent practicable, the Government Purchase Card
shall be used as the primary method for transacting micro-purchases.
Subpart 2813.4--Imprest Fund
2813.401 General.
Regulations governing the operation and procedures of the imprest
fund shall be contained in internal bureau regulations. Individuals
delegated the authority to withdraw from the imprest fund are further
subject to the limitations contained in their delegation memorandum.
[[Page 1409]]
Subpart 2813.5--Purchase Orders
2813.505 Purchase order and related forms.
(a) In accordance with FAR 13.505, for other than commercial items,
bureaus may use order forms other than Standard Form (SF) 1449, OF 347
and 348 and may print on those forms, clauses considered to be suitable
for purchases.
(b)(1) Contracting activities using the SF 44 will be responsible
for instructing authorized users as to the limitations and procedures
for use of the form as outlined in FAR 13.505.
(2) Since the SF 44 is an accountable form, a record shall be
maintained of: serial numbers of the forms; to whom issued; and, the
date issued. SF 44s shall be kept securely under lock and key to
prevent unauthorized use. A reservation of funds shall be established
to cover total anticipated expenditures prior to use of the SF 44.
Subpart 2813.70--Certified Invoice Procedure
2813.7001 Policy.
Under limited circumstances as described in this subpart, supplies
or services directly related to mission accomplishment, may be acquired
on the open market from local suppliers at the site of the work or use
point, using vendor's invoices under the certified invoice procedure,
instead of issuing purchase orders. Certified invoice procedures may
not be used to place orders under established contracts.
2813.7002 Procedure.
(a) Purchases utilizing the certified invoice procedure shall be
effected only in accordance with FAR part 13 and this part 2813,
subject to the following:
(1) The amount of any one purchase does not exceed the micro-
purchase threshold;
(2) A purchase order is not required by either the supplier or the
Government;
(3) Appropriate invoices can be obtained from the supplier; and,
(4) The items to be purchased shall be domestic source end
products, except as provided in FAR subpart 25.1.
(b) Use of the certified invoice procedures does not eliminate the
requirements in FAR part 13 or this part 2813 that are applicable to
purchases of this dollar threshold.
(c) The chief of the contracting office, as defined in 2802.101(c),
shall delegate the authority to use the certified invoice procedure.
Each delegation must specify any limitations placed on the individual's
use of these procedures, such as limits on the amount of each purchase,
or limits on the commodities, or services which can be procured.
(d) Each individual using this purchasing technique shall require
the supplier to immediately submit properly prepared invoices which
itemized property or services furnished. Upon receiving the invoice,
the individual making the purchase shall annotate the invoice with the
date of receipt, verify the arithmetic accuracy of the invoiced amount
and verify on the invoice that the supplies and/or services have been
received and accepted. If the invoice is correct, the individual making
the purchase shall sign the invoice indicating acceptance and
immediately forward it to the appropriate administrative office. The
invoice shall be approved by the appropriate administrative office and
forwarded to the Finance Office for payment within 5 workdays after
receipt of the invoice, or acceptance of supplies or services,
whichever is later. Before forwarding the invoice to Finance, the
administrative office shall place the following statement on the
invoice, along with the accounting and appropriation data:
I certify that these goods and/or services were received on
________ (date) and accepted on ________ (date). Oral purchase was
authorized and no confirming order has been issued.
----------------------------------------------------------------------
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
Date
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Printed or Typed Name and Title
PART 2814--SEALED BIDDING
Subpart 2814.4--Opening of bids and award of contract
2814.407 Mistakes in bids.
2814.407-3 Other mistakes disclosed before award.
2814.407-4 Mistakes after awards.
2814.409 Information to bidders.
2814.409-2 Award of classified contracts.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2814.4--Opening of bids and award of contract
2814.407 Mistakes in bids.
2814.407-3 Other mistakes disclosed before award.
(a) The authority to make determinations under paragraphs (a), (b),
(c), and (d) of FAR 14.407-3 is delegated to the HCA or designee at a
level not lower than the BPC.
(b) The following procedures shall be followed when submitting
doubtful cases of mistakes in bids to the Comptroller General for an
advance decision.
(1) Requests for advance decisions submitted to the Comptroller
General in cases of mistakes in bids shall be made by the HCA.
(2) Requests for advance decisions shall be in writing, dated,
signed by the requestor, addressed to the Comptroller General of the
United States, General Accounting Office, Washington, D.C. 20548, and
contain the following:
(i) The name and address of the party requesting the decision;
(ii) A statement of the question to be decided, a presentation of
all relevant facts, and a statement of the requesting party's position
with respect to the question; and,
(iii) Copies of all pertinent and supporting documentation.
2814.407-4 Mistakes after award.
Proposed determinations under FAR 14.407 shall be coordinated with
legal counsel in accordance with bureau procedures.
2814.409 Information to bidders.
2814.409-2 Award of classified contracts.
In accordance with FAR 14.409-2, the contracting officer shall
advise the unsuccessful bidders, including any who did not bid, to take
disposition action in accordance with bureau procedures.
PART 2815--CONTRACTING BY NEGOTIATION
Subpart 2815.4--Solicitation and Receipt of Proposals and Quotations
2815.405 Solicitations for information or planning purposes.
2815.405-1 General.
2815.408 Issuing solicitations.
2815.411 Receipt of proposals and quotations.
Subpart 2815.5--Unsolicited Proposals
2815.506 Agency procedures.
Subpart 2815.8--Price Negotiation
2815.803 General.
2815.805 Proposal analysis.
2815.805-5 Field pricing support.
2815.810 Should-cost review.
2815.810-2 Program should-cost review.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2815.4--Solicitation and Receipt of Proposals and
Quotations
2815.405 Solicitations for information or planning purposes.
2815.405-1 General.
When a solicitation for informational or planning purposes is to be
issued, the contracting officer shall make a written
[[Page 1410]]
determination that such solicitation is justified. This determination
shall be approved at a level above the contracting officer.
2815.408 Issuing solicitations.
Solicitations involving classified information shall be handled in
accordance with the policies and procedures contained in Departmental
regulations and other offices, boards, divisions, and bureaus (OBDB)
prescribed policies and regulations that supplement Departmental
regulations.
2815.411 Receipt of proposals and quotations.
Classified proposals and quotations shall be handled in accordance
with the current DOJ Order agency regulations and any supplemental
directives or orders implemented by the OBDB. Such supplemental
regulations must have the prior approval of the AAG/A before
implementation in accordance with the Departmental regulations.
Subpart 2815.5--Unsolicited Proposals
2815.506 Agency procedures.
(a) Each contracting activity shall designate a point of contact
for the receipt and handling of unsolicited proposals. Generally, the
official designated shall be the BPC or immediate subordinate.
(b) The designated point of contact for each contracting activity
shall provide for and coordinate receipt, review, evaluation, and final
disposition of unsolicited proposals in accordance with FAR 15.506
through 15.509.
Subpart 2815.8--Price Negotiation
2815.803 General.
If a contractor insists on a price or demands a profit or fee that
the contracting officer considers unreasonable and the contracting
officer has taken all authorized actions to negotiate a reasonable
price or profit or fee without success, the contracting officer shall
then refer the contract action to the HCA or designee.
2815.805 Proposal analysis.
2815.805-5 Field pricing support.
All requests for field pricing support shall be made by the
contracting officer directly to the cognizant audit agency. A copy of
the request for such services shall be sent to the Department of
Justice Office of the Inspector General (OIG) at the address shown in
this subsection at the time it is mailed to the cognizant audit agency.
A copy of each report received shall also be sent to the OIG. Requests
for other audit assistance may be made to the Assistant Inspector
General for Audits, Suite 5000, 1425 New York Avenue, N.W., Washington,
D.C. 20530.
2815.810 Should-cost review.
2815.810-2 Program should-cost review.
In acquisitions for which a program should-cost review is
conducted, the required should-cost review team report shall be
prepared in accordance with bureau procedures.
PART 2816--TYPES OF CONTRACTS
Subpart 2816.5--Indefinite-Delivery Contracts
2816.505 Ordering.
Subpart 2816.6--Time and Materials, Labor-Hour, and Letter Contracts
2816.601 Time-and-material contracts.
2816.602 Labor-hour contracts.
2816.603 Letter contracts.
2816.603-2 Application.
2816.603-3 Limitations.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2816.5--Indefinite-Delivery Contracts
2816.505 Ordering.
(a) In accordance with FAR 16.505(b)(4), the Department of Justice
Task Order and Delivery Order Ombudsman is the DOJ Competition
Advocate.
(b) Heads of contracting activities shall designate a contracting
activity Task Order and Delivery Order Ombudsman. This person may be
the contracting activity competition advocate and must meet the
qualification requirements of 2806.501(b).
(c) Contracting activity ombudsmen shall review and resolve
complaints from contractors concerning task or delivery orders placed
by the contracting activity.
(d) Contractors not satisfied with the resolution of a complaint by
a contracting activity ombudsman may request the Departmental Ombudsman
to review the complaint.
Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
2816.601 Time-and-material contracts.
In addition to the limitations listed in FAR 16.601(c), a time-and-
materials contract may be used only after the contracting officer
receives written approval from the chief of the contracting office.
When the contracting officer is also the chief of the contracting
office, the approval to use a time-and-materials type contract will be
made at a level above the contracting officer.
2816.602 Labor-hour contracts.
The limitations set forth in 2816.601 for time-and-material
contracts also apply to labor-hour contracts.
2816.603 Letter contracts.
2816.603-2 Application.
In cases where the contracting officer and the contractor cannot
negotiate the definitization of a letter contract within 180 days after
the date of the letter contract, or before completion of 40 percent of
the work to be performed, the contracting officer may, with the written
approval of the PE, revise and extend the definitization schedule.
However, in no event shall the extension of the definitization schedule
extend beyond the lesser of an additional 180 day period or the
completion of 80 percent of the work to be performed. If at the end of
the extension, the contracting officer and the contractor cannot
negotiate a definitive contract because of failure to reach an
agreement on price or fee, the procedures set forth in FAR 52.216-25,
16.603-2, 15.8, and part 31 shall be followed, as applicable.
2816.603-3 Limitations.
A letter contract may be used only after the express written
approval of the Procurement Executive. Requests for approval shall
contain the rationale explaining why no other contract is suitable and
shall include the approval of the HCA or designee. Under circumstances
of compelling urgency which do not permit the time needed for written
approval, oral approval must be obtained; however, written
documentation to support the award and confirm the oral approval must
be submitted as soon as practicable after award.
PART 2817--SPECIAL CONTRACTING METHODS
Subpart 2817.1--Multiyear Contracting
2817.108 Congressional notification.
Subpart 2817.6--Management and Operating Contracts
2817.605 Award, renewal, and extension.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and
28 CFR 0.76(j).
Subpart 2817.1--Multiyear Contracting
2817.108 Congressional notification.
Pursuant to FAR 17.198(a), the original congressional notification
shall be submitted to PPRG, JMD, for concurrence, coordination to the
Attorney General, and subsequent transmission to the appropriate
congressional committees.
[[Page 1411]]
Subpart 2817.6--Management and Operating Contracts
2817.605 Award, renewal, and extension.
In accordance with FAR 17.605(b), the contracting officer,
following bureau procedures, shall review each management and operating
contract, at appropriate intervals and at least once every 5 years.
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 2819--SMALL BUSINESS PROGRAMS
Subpart 2819.2--Policies
2819.201 General policy.
Subpart 2819.5--Set-Asides for Small Business
2819.506 Withdrawing or modifying set-asides.
Subpart 2819.6--Certificates of Competency and Determinations of
Eligibility
2819.602 Procedures.
2819.602-1 Referral.
Subpart 2819.70--Forecasts of Expected Contract Opportunities
2819.7001 General.
2819.7002 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2819.2--Policies
2819.201 General policy.
(a) The Office of Small and Disadvantaged Business Utilization
(OSDBU) is organizationally attached to the Office of the Deputy
Attorney General in accordance with 28 CFR 0.18a, but is located in JMD
for administrative purposes.
(b) The Director, OSDBU is responsible for the administration of
the DOJ small and disadvantaged business programs in accordance with
the duties described in 28 CFR 0.18a.
Subpart 2819.5--Set-Asides for Small Business
2819.506 Withdrawing or modifying set-asides.
(a) Before a contracting officer may withdraw or modify a small
business set-aside, the contracting officer shall seek the concurrence
of the Director, OSDBU.
(b) If the contracting officer and the Director, OSDBU, are unable
to agree on the proposed withdrawal or modification, the Director,
OSDBU shall:
(1) Forward the matter to the SBA procurement center representative
assigned to the Department of Justice for resolution; or,
(2) Forward the matter to the PE for resolution if an SBA
procurement center representative is not assigned to the Department of
Justice.
Subpart 2819.6--Certificates of Competency and Determinations of
Eligibility
2819.602 Procedures.
2819.602-1 Referral.
In accordance with FAR 19.602-1(a)(2), the matter shall be
submitted to the Director, OSDBU, for subsequent referral to the
cognizant SBA Regional Officer.
Subpart 2819.70--Forecasts of Expected Contract Opportunities
2819.7001 General.
Section 501 of Public Law 100-656, the Business Opportunity
Development Reform Act of 1988, requires executive agencies having
contract actions in excess of $50 million in Fiscal Year 1988 or later
to prepare an annual forecast of expected contract opportunities, or
classes of contract opportunities that small business concerns,
including those owned and controlled by socially and economically
disadvantaged individuals, are capable of performing.
2819.7002 Procedures.
The content and format of bureau annual forecasts of contract
opportunities, as well as the updates to their contracting forecasts
shall be as specified by the Director, OSDBU.
PART 2822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2822.1--Basic Labor Policies
2822.101 Labor relations.
2822.101-1 General.
2822.101-3 Reporting labor disputes.
2822.103 Overtime.
2822.103-4 Approvals.
Subpart 2822.4--Labor Stardards for Contracts Involving Construction
2822.406 Administration and enforcement.
2822.406-8 Investigations.
Subpart 2822.13--Special Disabled and Vietnam Era Veterans
2822.1303 Waivers.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2822.1--Basic Labor Policies
2822.101 Labor relations.
2822.101-1 General.
All matters regarding labor relations shall be handled in
accordance with bureau procedures.
2822.101-3 Reporting labor disputes.
The office administering the contract shall report, directly to the
contracting officer, any potential or actual labor disputes that may
interfere with performing any contracts under its cognizance.
2822.103 Overtime.
2822.103-4 Approvals.
The inclusion of a dollar amount greater than zero in paragraph (a)
of the FAR clause 52.222-2, Payment For Overtime Premiums, must be
approved at a level above the contracting officer. Such approval shall
be reflected by the signature of the approving official on the
contracting officer's written determination made in accordance with FAR
22.103-4.
Subpart 2822.4--Labor Standards for Contracts Involving
Construction
2822.406 Administration and enforcement.
2822.406-8 Investigations.
Pursuant to FAR 22.406-8(d), the contracting officer shall prepare
and forward the report of violations to the HCA or designee at a level
not lower than the BPC. That official shall be responsible for
processing the report in accordance with FAR 22.406-8(d)(2).
Subpart 2822.13--Special Disabled and Vietnam Era Veterans
2822.1303 Waivers.
In accordance with FAR 22.1303, all requests for waivers shall be
forwarded from the HCA to PPRG, JMD, for processing to the Attorney
General.
PART 2823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND
DRUG-FREE WORKPLACE
Subpart 2823.1--Pollution Control and Clean Air and Water
2823.107 Compliance responsibilities.
Subpart 2823.3--Hazardous Material Identification and Material Safety
Data
2823.303-70 Departmental contract clause.
Subpart 2823.4--Use of Recovered Materials
2823.403 Policy.
2823.404 Procedures.
2823.404-70 Affirmative Procurement Program for Recycled Materials.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2823.1--Pollution Control and Clean Air and Water
2823.107 Compliance responsibilities.
If a contracting officer becomes aware of noncompliance with clean
air, water
[[Page 1412]]
or other affected media standards in facilities used in performing
nonexempt contracts, that contracting officer shall notify the
Department of Justice Environmental Executive (DOJEE).
Subpart 2823.3--Hazardous Material Identification and Material
Safety Data
2823.303-70 Departmental contract clause.
The contracting officer shall insert the clause at 2852.223-70,
Unsafe Conditions Due to the Presence of Hazardous Material, in all
solicitations and contracts, as appropriate, if the contract will
require the performance of services on Government-owned or Government-
leased facilities.
Subpart 2823.4--Use of Recovered Materials
2823.403 Policy.
It is the policy of DOJ that its contracting activities and
contractors that procedure on behalf of DOJ, acquire EPA designated
items in accordance with EPA's Comprehensive Procurement Guideline For
Products Containing Recovered Materials (CPG) (40 CFR part 247). The
recommended minimum recovered materials content of EPA designated items
is set forth in EPA's Recovered Materials Advisory Notices (RMANs) and
in E.O. 12873 as amended. These publications are available from the
DOJEE.
2823.404 Procedures.
(a) The program office initiating the acquisition is responsible
for determining if recovered materials should be included in the
specification. Procurement offices are responsible for informing
program offices of the requirement for writing specifications for
designated items that include minimum content standards specified in
the RMANs.
(b) If the program office chooses to procure designated items
containing less than the minimum content standards, the program office
must justify that decision in writing and include a copy of the signed
justification with the procurement request package. FAR 23.404(b)(3)
sets forth the only accepted justifications for acquiring EPA
designated items which do not meet the minimum content standard. The
contracting officer is the approving official for justifications made
pursuant to FAR 23.404(b)(3). Contracting officers are responsible for
including a signed copy of the justification in the acquisition file
and submitting a copy of the approved justification to the DOJEE.
2823.404-70 Affirmative Procurement Program for Recycled Materials.
(a) Recovered materials preference program. Preference will be
given to procuring and using products containing recovered materials
rather than products made with virgin materials when adequate
competition exists, and when price, performance and availability are
equal.
(b) Promotion program. The DOJEE has primary responsibility for
actively promoting the acquisition of products containing recycled
materials throughout DOJ. Technical and procurement personnel will
cooperate with the DOJEE to actively promote DOJ's Affirmative
Procurement Program (APP).
(c) Procedures for vendor estimation, verification and
certification. (1) Estimation. The contractor shall provide estimates
of the total percentage(s) of recovered materials for EPA designated
items to be used in products or services provided.
(2) Certification. Contracting officers shall provide copies of all
vendor and subcontractor certifications required by FAR 23.405(c) to
the DOJEE.
(3) Verification. The DOJEE is responsible for periodically
reviewing vendor certification documents and waivers as part of the
annual review and monitoring process to determine if DOJ is in
compliance with the E.O. 12873 and subsequent amendments.
PART 2824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 2824.2--Freedom of Information Act
2824.202 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2824.2--Freedom of Information Act
2824.202 Policy.
Procedures for processing Freedom of Information Act requests are
set forth in Departmental regulations and 28 CFR part 16.
PART 2825--FOREIGN ACQUISITION
Subpart 2825.2--Buy American Act--Construction Materials
2825.203 Evaluating offers.
Subpart 2825.3--Balance of Payments Program
2825.302 Policy.
Subpart 2825.9--Additional Foreign Acquisition Clauses
2825.901 Omission of audit clause.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2825.2--Buy American Act--Construction Materials
2825.203 Evaluating offers.
The HCA, or designee at a level not lower than the BPC, is the
agency official authorized to make the determination that using a
particular domestic construction material would unreasonably increase
the cost of the acquisition or would be impracticable.
Subpart 2825.3--Balance of Payments Program
2825.302 Policy.
The HCA, or designee at a level not lower than the BPC, is the
agency official authorized to make determinations under FAR
25.302(b)(3), as well as authorize the use of a differential greater
than 50 percent, as specified in FAR 25.302(c), for the evaluation of
domestic and foreign offers under the Balance of Payments Program. All
determinations made under this section shall be in writing and shall
set forth the facts and circumstances supporting the determination.
Determinations shall be reviewed and concurred in by the contracting
activity's legal counsel.
Subpart 2825.9--Additional Foreign Acquisition Clauses
2825.901 Omission of audit clause.
The HCA, or designee at a level not lower than the BPC, is the
agency official authorized to make determinations under FAR 25.901(c).
All determinations made under this authority shall be reviewed and
concurred in by the contracting activity's legal counsel prior to being
approved by the authorized agency official.
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 2828--BONDS AND INSURANCE
Subpart 2828.1--Bonds
2828.106 Administration.
2828.106-6 Furnishing information.
Subpart 2828.2--Sureties
2828.204 Alternatives in lieu of corporate or individual sureties.
Subpart 2828.3--Insurance
2828.307-1 Group insurance plans.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
[[Page 1413]]
Subpart 2828.1--Bonds
2828.106 Administration.
2828.106-6 Furnishing information.
In accordance with FAR 28.106-6(c), the HCA, or designee at a level
not lower than the BPC, is the agency official authorized to furnish
the certified copy of the bond and the contract.
Subpart 2828.2--Sureties
2828.204 Alternatives in lieu of corporate or individual sureties.
When contractors submit any of the types of security described in
FAR 28.204-1 through 28.204-3 in lieu of furnishing sureties, the
contracting officer shall enter into an agreement with the contractor
covering a bank account, and suitable covenants protecting the
Government's interest, in which the securities will be deposited to
protect against their loss during the period of the bond obligation.
Subpart 2828.3--Insurance
2828.307-1 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 and approval. During review, the
contracting office should utilize all sources of information available
such as audit, industry practices, etc., to determine that acceptance
of the group insurance plan, as submitted, is in the Government's best
interest.
PART 2829--TAXES
Subpart 2829.3--State and Local Taxes
2829.302 Applications of State and local taxes to the Government.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2829.3--State and Local Taxes
2829.302 Application of State and local taxes to the Government.
(a) It is DOJ policy that DOJ contracts shall not contain clauses
expressly designating prime contractors as agents of the Government for
the purpose of avoiding State and local taxes.
(b) Although circumstances may exist under which a contractor is an
agent of the Government, even in the absence of a contract clause
expressly designating a contractor as such, these circumstances should
be extremely rare. Before any DOJ contracting activity may contend that
any of its contractors are agents of the Government for the purpose of
claiming immunity from State and local sales and use taxes, the matter
will be referred to the AAG/A for review, and approval to ensure that
DOJ policy is complied with and that the contracting activity's
contention is fully in accordance with the pertinent legal principles
and precedents. Each case forwarded will be reviewed by the HCA before
referral to the AAG/A. The referral will include all pertinent data on
which the contracting activity's contention is based, together with a
thorough analysis of all relevant legal precedents.
(c) Whenever clauses, procedures, and business practices are cited
by DOJ contracting activities to support the contention that a
contractor is an agent of the Government for the purpose of immunity
from a State or local sales or use tax, contracting activities should
whenever possible, devise alternative clauses, procedures, and
practices for future use which will accomplish their intended purpose
without providing the basis for contention that the contractor is an
agent of the Government for the purpose of immunity from State and
local sales or use taxes. Any referral to the AAG/A for approval under
this subpart shall include comments on the extent to which alternative
clauses, procedures, or practices may be utilized to accomplish the
intended purpose without providing the basis for the contention that
the contractor is an agent of the Government for the purpose of
immunity from State and local sales or use taxes.
PART 2830--COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 2830.2--CAS Program Requirements
2830.201-5 Waiver.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2830.2--CAS Program Requirements
2830.201-5 Waiver.
A request for a waiver of the Cost Accounting Standards
requirements shall be forwarded to the HCA after the contracting
officer has made the determination required by FAR 30.201-5.
PART 2831--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 2831.1--Applicability
2831.101 Objectives.
2831.109 Advance agreements.
Subpart 2831.2--Contracts With Commercial Organizations
2831.205 Selected costs.
2831.205-32 Precontract costs.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2831.1--Applicability
2831.101 Objectives.
(a) The PE is the official authorized to grant individual
deviations from the cost principles of FAR part 31. All requests for
individual deviations must cite the facts and circumstances surrounding
the request as well as attempts to negotiate contractor compliance.
(b) Requests for class deviation from the cost principles set forth
in FAR part 31 will be forwarded through the PE prior to submission to
the Civilian Agency Acquisition Counsel. Requests must contain the
information required in paragraph (a) of this section.
2831.109 Advance agreements.
(a) The DOJ and bureau contracting officers are encouraged to
negotiate advance agreements concerning the treatment of special or
unusual costs to avoid possible subsequent disputes or disallowance of
costs based upon unreasonableness or nonallowability. All such
agreements shall be negotiated in accordance with FAR 31.109 prior to
the contractor incurring such costs. Contracting officers are not
authorized to agree to a treatment of costs which would be inconsistent
with FAR part 31.
(b) Prior to negotiating an advance agreement, contracting officers
shall make a written determination setting forth the reasons and
rationale for entering into such agreements. In addition, the
determination will set forth the nature, the duration, and which
contract or contracts are covered by the proposed agreement. All
determinations required by this subpart will be reviewed and approved
at a level above the contracting officer prior to negotiation of the
proposed agreement. The approved determination will be placed in the
contract file.
(c) All advance agreements shall be in writing and shall set forth
the nature, duration, and contract or contracts covered by the
agreements. Advance agreements will be signed by both the contractor
and the contracting officer, and made a part of the contract file.
Copies of executed advance agreements will be distributed to the
cognizant audit office when applicable.
(d) All advance agreements will be incorporated in full in the
subsequent contract(s) to which they pertain, prior to award.
[[Page 1414]]
Subpart 2831.2--Contracts With Commercial Organizations
2831.205 Selected costs.
2831.205-32 Precontract costs.
(a) Precontract cost authorizations shall be used only on cost
reimbursement contracts, contain no provisions for payment of fees, and
be treated as advance agreements in accordance with the provisions of
FAR 31.109 and 2831.109.
(b) The following limitations apply to the execution of precontract
cost authorizations.
(1) Contracts which are estimated to be greater than the simplified
acquisition threshold may contain a precontract cost authorization
providing the authorization is for a period of 60 days or less and the
dollar amount does not exceed the lesser of the simplified acquisition
threshold or one-third of the total estimated costs (including fee if
any) of the contract.
(2) The limitation expressed under paragraph (b) of this section
may be increased in unusual circumstances as appropriate, with the
written approval of the HCA, but in no event shall they exceed one-
third of the total estimated costs (including fee if any) of the
contract or be for periods of time which exceed 90 days.
PART 2832--CONTRACT FINANCING
Subpart 2832.1--Non-Commercial Item Purchase Financing
2832.114 Unusual contract financing.
Subpart 2832.4--Advance Payments for Non-Commercial Items
2831.402 General.
2831.407 Interest.
Subpart 2832.9--Prompt Payment
2831.903 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2832.1--Non-Commercial Item Purchase Financing
2832.114 Unusual contract financing.
The HCA, or designee at a level not lower than the BPC, is the
official authorized to approve unusual contract financing as set forth
in FAR 31.114.
Subpart 2832.4--Advance Payments for Non-Commercial Items
2832.402 General.
(a) The authority to sign written determinations and findings with
respect to making advance payments is vested in the HCA.
(b) Prior to awarding a contract which contains provisions for
making advanced payments, the contract terms and conditions concerning
advance payments must be approved at a level above the contracting
officer, with advice and consent of the bureau's legal counsel.
(c) The contracting officer shall coordinate with the activity that
is to provide contract financing for advance payments, the bureau's
disbursing or finance office, or the Treasury Department, as
appropriate, to ensure that all FAR and departmental requirements are
met.
2832.407 Interest.
In cases where advance payments may be made on an interest free
basis (FAR 32.407(d)), the intent to make such interest free advance
payments, and the circumstance permitting interest free advance
payments, shall be set forth in the original determination and findings
and be approved in accordance with 2832.402.
Subpart 2832.9--Prompt Payment
2832.903 Policy.
The HCA is responsible for promulgating policies and procedures to
implement FAR 32.9 and to ensure that, when specifying due dates, full
consideration will be given to the time reasonably required by
Government officials to fulfill their administrative responsibilities
under the contract.
PART 2833--PROTESTS, DISPUTES, AND APPEALS
Subpart 2833.1--Protests
2833.101 Definitions.
2833.102 General.
2833.103 Protests to the Agency.
Subpart 2833.2--Disputes and Appeals
2833.209 Suspected fraudulent claims.
2833.211 Contracting officer's decision.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2833.1--Protests
2833.101 Definitions.
(a) Agency Protest Official means the official, other than the
contracting officer, designated to review and decide procurement
protests filed with a contracting activity of the Department of
Justice.
(1) This person will be at a level above that of the Contracting
Officer, will be knowledgeable about the acquisition process in general
and will have no programmatic interest in the procurement.
(2) This official shall be an individual designated by the head of
the contracting activity and may be the Competition Advocate.
(b) Deciding Official means the person chosen by the protestor to
decide the agency protest; it may be either the Contracting Officer or
the Agency Protest Official.
(c) Interested Party means an actual or prospective offeror whose
direct economic interest would be affected by the award of a contract
or by the failure to award a contract.
22833.102 General.
(a) This part prescribes policies and procedures for processing
protests to the Department of Justice in accordance with Executive
Order 12979, Agency Procurement Protests, dated October 25, 1995 and
FAR 33.103. They are intended to be flexible and to provide for fair,
quick, and inexpensive resolution of agency protests.
(b) Interested parties have the option of protesting to the
Contracting Officer or to the Agency Protest Official.
(c) Contracting officers and potential protestors are encouraged to
use their best efforts to resolve concerns through frank and open
discussion, as required by FAR 33.103(b). In resolving concerns and/or
protests, consideration should be given to the use of alternative
dispute resolution techniques where appropriate.
(d) Responsibilities. (1) Contracting Officers:
(i) Include the provision at 2852.233-70 in all solicitations that
are expected to exceed the simplified acquisition threshold.
(ii) If the protestor requests that the Contracting Officer decide
the protest, or if the protest is silent on this issue, the Contracting
Officer decides the protest using the procedures in this subpart and
FAR 33.103.
(iii) If the protestor requests that the Agency Protest Official
decide the protest, the Contracting Officer must ensure that the Agency
Protest Official receives a copy of the materials served on the
Contracting Officer within one business day after the filing date.
(2) Agency Protest Official: If the protestor requests that the
Agency Protest Official decide the protest, the Official must use the
procedures in this subpart and FAR 33.103 to provide an independent
review of the issues raised in the protest.
2833.103 Protests to the Agency.
(a) The filing time frames in FAR 33.103(e) apply. An agency
protest is filed when the protest complaint is received at the location
the solicitation designates for serving protests.
(b) An interested party filing an agency protest has the choice of
requesting either that the contracting
[[Page 1415]]
Officer or the Agency Protest Official decide the protest.
(c) In addition to the information required by FAR 33.103(d)(2),
the protest must:
(1) Indicate that it is a protest to the agency.
(2) Be filed with the Contracting Officer.
(3) State whether the protestor chooses to have the Contracting
Officer or the Agency Protest Official decide the protest. If the
protest is silent on this matter, the Contracting Officer will decide
the protest.
(4) Indicate whether the protestor prefers to make an oral or
written presentation of arguments in support of the protest to the
deciding official.
(d) The decision by the Agency Protest Official is an alternative
to a decision by the Contracting Officer on a protest. The Agency
Protest Official will not consider appeals from a Contracting Officer's
decision on an agency protest.
(e) The deciding official must conduct a scheduling conference with
the protestor within five (5) days after the protest is filed. The
scheduling conference will establish deadlines for oral or written
arguments in support of the agency protest and for agency officials to
present information in response to the protest issues. The deciding
official may hear oral arguments in support of the agency protest at
the same time as the scheduling conference, depending on availability
of the necessary parties.
(f) Oral conferences may take place either by telephone or in
person. Other parties may attend at the discretion of the deciding
official.
(g) The protestor has only one opportunity to support or explain
the substance of its protest. Department of Justice procedures do not
provide for any discovery. The deciding official has discretion to
request additional information from either the agency or the protestor.
However, the deciding official will normally decide protests on the
basis of information provided by the protestor and the agency.
(h) The preferred practice is to resolve protests through informal
oral discussion.
(i) An interested party may represent itself or be represented by
legal counsel. The Department of Justice will not reimburse the
protestor for any legal fees related to the agency protest.
(j) If an agency protest is received before contract award, the
Contracting Officer must not make award unless the Head of the
Contracting Activity makes a determination to proceed under FAR
33.103(f)(1). Similarly, if an agency protest is filed within ten (10)
days after award, the Contracting Officer must stay performance unless
the Head of the Contracting Activity makes a determination to proceed
under FAR 33.103(f)(3). Any stay of award or suspension of performance
remains in effect until the protest is decided, dismissed, or
withdrawn.
(k) The deciding official must make a best effort to issue a
decision on the protest within twenty (20) days after the filing date.
The decision may be oral or written. If oral, the deciding official
must send a confirming letter within three (3) days after the decision
using a means that provides receipt. The confirming letter must include
the following information:
(1) State whether the protest was denied, sustained or dismissed.
(2) Indicate the date the decision was provided.
(l) If the deciding official sustains the protest, relief may
consist of any of the following:
(1) Recommendation that the contract be terminated for convenience
or cause.
(2) Recompeting the requirement.
(3) Amending the solicitation.
(4) Refraining from exercising contract options.
(5) Awarding a contract consistent with statute, regulation, and
the terms of the solicitation.
(6) Other action that the deciding official determines is
appropriate.
(m) If the Agency Protest Official sustains a protest, then within
30 days after receiving the Official's recommendations for relief, the
Contracting Officer must either:
(1) Fully implement the recommended relief; or
(2) Notify the Agency Protest Official in writing if any
recommendations have not been implemented and explain why.
(n) Proceedings on an agency protest may be dismissed or stayed if
a protest on the same or similar basis is filed with a protest forum
outside of the Department of Justice.
Subpart 2833.2--Disputes and Appeals
2833.209 Suspected fraudulent claims.
Contracting officers shall report suspected fraudulent claims to
the Office of the Inspector General.
2833.211 Contracting officer's decision.
(a) The Agency Board of Contract Appeals (BCA), which will hear
appeals from the decisions of bureau contracting officers, is the
Department of Transportation BCA. The procedures set forth in 48 CFR
chapter 63 shall apply.
(b) Pursuant to 28 CFR 0.45(i), the contact for all appeals of
decisions of DOJ contracting officers which will be forwarded to the
BCA under paragraph (a) of this section, is the Deputy Assistant
Attorney General, Commercial Litigation Branch, Civil Division.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 2834--MAJOR SYSTEM ACQUISITION
Subpart 2834.0--General
2834.002 Policy.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2834.0--General
2834.002 Policy.
In accordance with Pub. L. 98-577, the Small Business and Federal
Procurement Competition Enhancement Act of 1984, an executive agency
may establish a dollar threshold for the designation of a major system.
Accordingly, dollar thresholds for a major system under Office of
Management and Budget Circular A-109 are designated in this section.
(a) Major Automated Information System. Within the Department of
Justice, a major automated information system is one whose life-cycle
cost is in excess of $100 million.
(b) Major Real Property System. (1) By purchase, when the assessed
value of the property exceeds $60 million.
(2) By lease, when the annual rental charges, including basic
services (e.g., cleaning, guards, maintenance), exceed $1.8 million.
(3) By transfer from another agency at no cost when the assessed
value of the property exceeds $12 million.
(c) Research and Development (R&D) System. Any R&D activity
expected to exceed $0.5 million, for the R&D phase is subject to OMB
Circular A-109, unless exempted by the HCA.
(d) Any other system or activity. The HCA responsible for the
system may designate any system or activity as a Major System under OMB
Circular A-109 as a result of Departmental review, e.g., selected
systems designed to support more than one principal organizational
unit.
(e) Exemption. The AAG/A, upon recommendation by the HCA
responsible for the system, may determine that because of the routine
nature of the acquisition, the system (e.g., an information system
utilizing only off-the-shelf hardware or software) will be exempt from
the OMB Circular A-109 process, although by virtue of the life cycle
costs, it would otherwise be identified as ``major'' in response to OMB
Circular A-109.
[[Page 1416]]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 2842--CONTRACT ADMINISTRATION
Subpart 2842.15--Contractor Performance Information
2842.1502 Policy.
2842.1503 Procedures.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2842.15--Contractor Performance Information
2842.1502 Policy.
The head of each contracting activity shall be responsible for
establishing past performance evaluation procedures and systems as
required by FAR 42.1502 and 42.1503.
2842.1503 Procedures.
Past performance evaluation procedures and systems shall include,
to the greatest practical extent, the evaluation and performance rating
factors set forth in the Office of Federal Procurement Policy best
practices guide for past performance.
PART 2845--GOVERNMENT PROPERTY
Subpart 2845.1--General
2845.105 Records of Government property.
Subpart 2845.5--Management of Government Property in the Possession of
Contractors
2845.505-14 Reports of Government Property.
Subpart 2845.6--Reporting, Redistribution, and Disposal of Contractor
Inventory
2845.603 Disposal methods.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2845.1--General
2845.105 Records of Government property.
If departmental elements maintain the Government's official
property management records, the contract records may be kept as a
separate account in the bureau's internal property management system,
in which case the contracting officer or formally designated property
administrator shall serve as custodian of the account.
Subpart 2845.5--Management of Government Property in the Possession
of Contractors
2845.505-14 Report of Government Property.
(a) In compliance with FAR 45.505-14, by January 31 of each year,
DOJ contractors shall furnish the cognizant contracting officer an
annual report of the DOJ property for which they are accountable as of
the end of the calendar year.
(b) By March 1 of each year, bureaus shall submit a summary report
of Departmental property furnished under each contract, as of the end
of the calendar year, to the Facilities and Administrative Services
Staff, Justice Management Division. The report shall be categorized in
accordance with FAR 45.505 and shall include contracts for which the
bureau maintains the official government records.
Subpart 2845.6--Reporting, Redistribution, and Disposal of
Contractor Inventory
2845.603 Disposal methods.
Policies pertaining to reutilization and disposal of DOJ property,
including requirements for internal screening, waivers, and disposal
reporting, are prescribed in the Justice Property Management
Regulations Subpart 128-43. Unless otherwise specified, the ``plant
clearance officer'' shall be a designated utilization and disposal
representative of a bureau's property management office.
PART 2846--QUALITY ASSURANCE
Subpart 2846.6--Material Inspection and Receiving Reports
Subpart 2846.7--Warranties
2845.704 Authority for use of warranties.
Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2846.6--Material Inspection and Receiving Reports
Bureaus shall prescribe procedures and instructions for the use,
preparation, and distribution of material inspection and receiving
reports and commercial shipping document/packing lists to evidence
Government inspection.
Subpart 2846.7--Warranties
2846.704 Authority for use of warranties.
The use of a warranty in an acquisition shall be approved at a
level above the contracting officer.
Subchapter H--Clauses and Forms
PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 2852.1--Instructions for Using Provisions and Clauses
2852.102 Incorporating provisions and clauses.
2852.102-270 Incorporation in full text.
Subpart 2852.2--Text of Provisions and Clauses
2852.201-70 Contracting Officer's Technical Representative (COTR).
2852.211-70 Brand-name or Equal.
2852.223-70 Unsafe Conditions Due to the Presence of Hazardous
Material.
2852.233-70 Protests Filed Directly with the Department of Justice.
Authority: 28 U.S.C. 510; 49 U.S.C. 486(c); 28 CFR 0.75(j) and
28 CFR 0.76(j).
Subpart 2852.1--Instructions for Using Provisions and Clauses
2852.102 Incorporating provisions and clauses.
2852.102-270 Incorporation in full text.
JAR provisions or clauses shall be incorporated in solicitations
and contracts in full text.
Subpart 2852.2--Text of Provisions and Clauses
2852.201-70 Contracting Officer's Technical Representative (COTR).
As prescribed in subpart 2801.70, insert the following clauses:
Contracting Officer's Technical Representative (COTR) (JAN 1985)
(a) Mr./Ms. (Name) of (Organization) (Room No.), (Building),
(Address), (Area Code & Telephone No.), is hereby designated to act
as Contracting Officer's Technical Representative (COTR) under this
contract.
(b) The COTR is responsible, as applicable, for: receiving all
deliverables, inspecting and accepting the supplies or services
provided hereunder in accordance with the terms and conditions of
this contract; providing direction to the contractor which clarifies
the contract effort, fills in details or otherwise serves to
accomplish the contractual Scope of Work; evaluating performance;
and certifying all invoices/vouchers for acceptance of the supplies
or services furnished for payment.
(c) The COTR does not have the authority to alter the
contractor's obligations under the contract, and/or modify any of
the expressed terms, conditions, specifications, or cost of the
agreement. If as a result of technical discussions it is desirable
to alter/change contractual obligations or the Scope of Work, the
Contracting Officer shall issue such changes.
(End of Clause)
2852.211-70 Brand-name or Equal.
As prescribed in 2811.104-70, insert the following clause:
BRAND-NAME OR EQUAL (JAN 1985)
(a) The terms ``bid'' and ``bidder'', as used in this clause,
include the terms ``proposal'' and ``offerors''. The terms
``invitation for bids'' and ``invitation'', as used in this clause
include the terms ``request for proposal'' and ``request''.
(b) If items called for by this invitation for bids have been
identified in the schedule by a ``brand name or equal'' description,
such identification is intended to be descriptive
[[Page 1417]]
but not restrictive, and is to indicate the quality and
characteristics of products that will be satisfactory. Bids offering
``equal'' products (including products of a brand name manufacturer
other than the one described by brand name) will be considered for
award if such products are clearly identified in the bids and are
determined by the Government to meet fully the salient
characteristics and requirements listed in the invitation.
(c) Unless the bidder clearly indicates in his/her bid that he/
she is offering an ``equal'' product, his/her bid shall be
considered as offering the brand name product referenced in the
invitation for bids.
(d)(1) If the bidder proposes to furnish an ``equal'' products,
brand name, if any, of the product to be furnished shall be inserted
in the space provided in the invitation for bids, or such product
shall be otherwise clearly identified in the bid. The evaluation of
bids and the determinations to equality of the product offered shall
be the responsibility of the Government and will be based on
information furnished by the bidder or identified in his/her bid as
well as other information reasonably available to the purchasing
activity. To ensure that sufficient information is available, the
bidder must furnish as a part of his/her bid all descriptive
material (such as cuts, illustrations, drawings, or other
information) necessary for the purchasing activity to: (i) determine
whether the product offered meets the salient characteristics
requirements of the invitation for bids, and (ii) establish exactly
what the bidder proposed to furnish and what the Government would be
binding itself to purchase by making an award. The information
furnished may include specific references to information previously
furnished or information otherwise available to the purchasing
activity.
(2) If the bidder proposes to modify a product so as to make it
conform to the requirements of the invitation for bids, he/she
shall: (i) include in his/her bid a clear description of such
proposed modifications, and (ii) clearly mark any descriptive
material to show the proposed modifications.
(3) Modifications proposed after the bid opening to make a
product conform to a brand name product referenced in the invitation
for bids will not be considered.
(End of Clause)
2852.223-70 Unsafe Conditions Due to the Presence of Hazardous
Material
As prescribed in 2823.303-70, insert the following clause:
UNSAFE CONDITIONS DUE TO THE PRESENCE OF HAZARDOUS MATERIAL (JUNE 1996)
(a) ``Unsafe condition'' as used in this clause means the actual
or potential exposure of contractor or Government employees to a
hazardous material as defined in Federal Standard No. 313, and any
revisions thereto during the term of this contract, or any other
material or working condition designated by the Contracting
Officer's Technical Representative (COTR) as potentially hazardous
and requiring safety controls.
(b) The Occupational Safety and Health Administration (OSHA) is
responsible for issuing and administering regulations that require
contractors to apprise its employees of all hazards to which they
may be exposed in the course of their employment; proper conditions
and precautions for safe use and exposure; and related symptoms and
emergency treatment in the event of exposure.
(c) Prior to commencement of work, contractors are required to
inspect for and report to the contracting officer or designee the
presence of, or suspected presence of, any unsafe condition
including asbestos or other hazardous materials or working
conditions in areas in which they will be working.
(d) If during the performance of the work under this contract,
the contractor or any of its employees, or subcontractor employees,
discovers the existence of an unsafe condition, the contractor shall
immediately notify the contracting officer, or designee (with
written notice provided not later than three (3) working days
thereafter), of the existence of an unsafe condition. Such notice
shall include the contractor's recommendations for the protection
and the safety of Government, contractor and subcontractor personnel
and property that may be exposed to the unsafe condition.
(e) When the Government receives notice of an unsafe condition
from the contractor, the parties will agree on a course of action to
mitigate the effects of that condition and, if necessary, the
contract will be amended. Failure to agree on a course of action
will constitute a dispute under the Disputes clause of this
contract.
(f) Nothing contained in this clause shall relieve the
contractor or subcontractors from complying with applicable Federal,
State, and local laws, codes, ordinances and regulations (including
the obtaining of licenses and permits) in connection with hazardous
material including but not limited to the use, disturbance, or
disposal of such material.
(End of Clause)
2852.233-70 Protests Filed Directly With the Department of Justice.
As prescribed in 2833.102(d), insert a clause substantially as
follows:
PROTESTS FILED DIRECTLY WITH THE DEPARTMENT OF JUSTICE (JAN 1998)
(a) The following definitions apply in this provision:
(1) ``Agency Protest Official'' means the official, other than
the contracting officer, designated to review and decide procurement
protests filed with a contracting activity of the Department of
Justice.
(2) ``Deciding Official'' means the person chosen by the
protestor to decide the agency protest; it may be either the
Contracting Officer or the Agency Protest Official.
(3) ``Interested Party'' means an actual or prospective offeror
whose direct economic interest would be affected by the award of a
contract or by the failure to award a contract.
(b) A protest filed directly with the Department of Justice
must:
(1) Indicate that it is a protest to the agency.
(2) Be filed with the Contracting Officer.
(3) State whether the protestor chooses to have the Contracting
Officer or the Agency Protest Official decide the protest. If the
protest is silent on this matter, the Contracting Officer will
decide the protest.
(4) Indicate whether the protestor prefers to make an oral or
written presentation of arguments in support of the protest to the
deciding official.
(5) Include the information required by FAR 33.103(d)(2):
(i) Name, address, fax number and telephone number of the
protestor.
(ii) Solicitation or contract number.
(iii) Detailed statement of the legal and factual grounds for
the protest, to include a description of resulting prejudice to the
protestor.
(iv) Copies of relevant documents.
(v) Request for a ruling by the agency.
(vi) Statement as to the form of relief requested.
(vii) All information establishing that the protestor is an
interested party for the purpose of filing a protest.
(viii) All information establishing the timeliness of the
protest.
(c) An interest party filing a protest with the Department of
Justice has the choice of requesting either that the Contracting
Officer of the Agency Protest Official decide the protest.
(d) The decision by the Agency Protest Official is an
alternative to a decision by the Contracting Officer. The Agency
Protest Official will not consider appeals from the Contracting
Officer's decision on an agency protest.
(e) The deciding official must conduct a scheduling conference
with the protestor within five (5) days after the protest is filed.
The scheduling conference will establish deadlines for oral or
written arguments in support of the agency protest and for agency
officials to present information in response to the protest issues.
The deciding official may hear oral arguments in support of the
agency protest at the same time as the scheduling conference,
depending on availability of the necessary parties.
(f) Oral conferences may take place either by telephone or in
person. Other parties may attend at the discretion of the deciding
official.
(g) The protestor has only one opportunity to support or explain
the substance of its protest. Department of Justice procedures do
not provide for any discovery. The deciding official may request
additional information from either the agency or the protestor. The
deciding official will resolve the protest through informal
presentations or meetings to the maximum extent practicable.
(h) An interested party may represent itself or be represented
by legal counsel. The Department of Justice will not reimburse the
protester for any legal fees related to the agency protest.
(i) The Department of Justice will stay award or suspend
contract performance in accordance with FAR 33.103(f). The stay or
suspension, unless over-ridden, remains in effect until the protest
is decided, dismissed, or withdrawn.
(j) The deciding official will make a best effort to issue a
decision on the protest within twenty (20) days after the filing
date. The decision may be oral or written.
[[Page 1418]]
(k) The Department of Justice may dismiss or stay proceeding on
an agency protest if a protest on the same or similar basis is filed
with a protest forum outside the Department of Justice.
(End of Clause)
[FR Doc. 98-380 Filed 1-8-98; 8:45 am]
BILLING CODE 4410-01-M
