2024-22463. Agriculture Acquisition Regulation (AGAR)

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II. Procedural Requirements

Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule is an internal rule of agency procedure and therefore is not a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis.

This final rule updates the AGAR to bring it up to date and ensures correspondence with the FAR is maintained. The final rule amends the AGAR to correct and update internal references to the FAR; to remove sections supplementing material that has been removed from the FAR; and to update designations of USDA. Therefore, pursuant to section 605(b), USDA certifies that this final rule will not have a significant impact on a substantial number of small entities.

Paperwork Reduction Act

This final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects

48 CFR Part 401

• Government procurement
• Reporting and recordkeeping requirements

48 CFR Parts 402, 405 Through 406, 411 Through 416, 434 Through 437, and 447 Through 470

• Government procurement

48 CFR Part 403

• Antitrust
• Conflict of interest
• Government procurement

48 CFR Part 404

• Classified information
• Government procurement

48 CFR Part 408

• Government procurement
• Printing

48 CFR Part 419

• Government procurement
• Small businesses

48 CFR Part 422

• Equal employment opportunity
• Government procurement
• Individuals with disabilities
• Labor

48 CFR Part 423

• Air pollution control
• Government procurement
• Occupational safety and health
• Water pollution control

48 CFR Part 425

• Foreign currencies
• Foreign trade
• Government procurement

48 CFR Part 428

• Government procurement
• Insurance
• Surety bonds

48 CFR Parts 430 Through 432

• Accounting
• Government procurement

48 CFR Part 433

• Administrative practice and procedure
• Government procurement

48 CFR Part 445

• Government procurement
• Government property

Under the authority of 5 U.S.C. 301 and 40 U.S.C. 486(c), revise 48 CFR chapter 4 to read as follows:

CHAPTER 4—DEPARTMENT OF AGRICULTURE

SUBCHAPTER A—GENERAL

PART 400—[RESERVED]

PART 401—AGRICULTURE ACQUISITION REGULATION SYSTEM

PART 402—DEFINITIONS OF WORDS AND TERMS

PART 403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS

PART 404—ADMINISTRATIVE AND INFORMATION MATTERS

SUBCHAPTER B—ACQUISITION PLANNING

PART 405—PUBLICIZING CONTRACT ACTIONS

PART 406—COMPETITION REQUIREMENTS

PART 407—[RESERVED]

PART 408—REQUIRED SOURCES OF SUPPLIES AND SERVICES

PARTS 409 and 410—[RESERVED] ( print page 81016)

PART 411—DESCRIBING AGENCY NEEDS

PART 412—ACQUISITION OF COMMERICAL ITEMS

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES

PART 413—SIMPLIFIED ACQUISITION PROCEDURES

PART 414—SEALED BIDDING

PART 415—CONTRACTING BY NEGOTIATION

PART 416—TYPES OF CONTRACTS

PARTS 417 AND 418—[RESERVED]

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

PART 419—SMALL BUSINESS PROGRAMS

PARTS 420 AND 421—[RESERVED]

PART 422—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

PART 423—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG- FREE WORKPLACE

PART 424—[RESERVED]

PART 425—FOREIGN ACQUISITION

PART 426—[RESERVED]

SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS

PART 427—[RESERVED]

PART 428—BONDS AND INSURANCE

PART 429—[RESERVED]

PART 430—COST ACCOUNTING STANDARDS ADMINISTRATION

PART 431—CONTRACT COST PRINCIPLES AND PROCEDURES

PART 432—CONTRACT FINANCING

PART 433—PROTESTS, DISPUTES AND APPEALS

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

PART 434—MAJOR SYSTEM ACQUISITION

PART 435—[RESERVED]

PART 436—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

PART 437—SERVICE CONTRACTING

PARTS 438 THROUGH 441—[RESERVED]

SUBCHAPTER G—CONTRACT MANAGEMENT

PARTS 442 THROUGH 444—[RESERVED]

PART 445—GOVERNMENT PROPERTY

PARTS 446 THROUGH 448—[RESERVED]

449—TERMINATION OF CONTRACTS

PART 450—EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

PART 451—[RESERVED]

SUBCHAPTER H—CLAUSES AND FORMS

PART 452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

PARTS 453 THROUGH 469—[RESERVED]

SUBCHAPTER I—FOOD ASSISTANCE PROGRAMS

PART 470—COMMODITY ACQUISITIONS

PARTS 471 THROUGH 499—[RESERVED]

SUBCHAPTER A—GENERAL

PART 400—[RESERVED]

PART 401—AGRICULTURE ACQUISITION REGULATION SYSTEM

Subpart 401.1—Purpose, Authority, Issuance

401.101

Purpose.

401.103

Authority.

401.104

Applicability.

401.105

Issuance.

401.105-1

Publication and code arrangement.

401.105-2

Arrangement of regulations.

401.105-3

Copies.

401.170

Electronic access to regulatory information.

Subpart 401.2—Administration

401.201

Maintenance of the FAR.

401.201-1

The two councils.

Subpart 401.3—Agency Acquisition Regulations

401.301

Policy.

401.304

Agency control and compliance procedures.

401.370

Exclusions.

401.371

USDA Contracting Desk Book.

401.372

Departmental directives.

Subpart 401.4—Deviations From the FAR and AGAR

401.402

Policy.

401.403

Individual deviations.

401.404

Class deviations.

Subpart 401.6—Career Development, Contracting Authority, and Responsibilities

401.601

General.

401.602

Contracting officers.

401.602-3

Ratification of unauthorized commitments.

401.603

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

401.603-1

General.

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

Subpart 401.1—Purpose, Authority, Issuance

401.101

Purpose.

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

401.103

Authority.

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

401.104

Applicability.

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

401.105

Issuance.

401.105-1

Publication and code arrangement.

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

(b) The AGAR and its subsequent changes are published in:

(1) Daily issues of the Federal Register ;

(2) Cumulative form in the CFR; and

(3) Electronic form on the USDA Departmental Administration procurement website (see AGAR 401.170).

(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 553, provides an exception from the standard public rulemaking procedures to the extent that the rule involves a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.

(d) The AGAR may be revised from time to time in accordance with the rulemaking procedures of the Administrative Procedure Act. The USDA is also required to publish for public comment procurement regulations in the Federal Register , pursuant to the Office of Federal Procurement Policy Act (41 U.S.C. 418b), and FAR 1.301.

( print page 81017)

401.105-2

Arrangement of regulations.

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

401.105-3

Copies.

Copies of the AGAR published in the CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. Requests should reference chapter 4 of title 48 CFR.

401.170

Electronic access to regulatory information.

The USDA procurement website provides access to the AGAR, AGAR amendments (circulars), the USDA Contracting Desk Book, and other USDA procurement policy and guidance.

Subpart 401.2—Administration

401.201

Maintenance of the FAR.

401.201-1

The two councils.

(a) USDA's representative on the Civilian Agency Acquisition Council is designated by the SPE.

(b) USDA Office of Contracting and Procurement, Procurement Policy Division will coordinate proposed FAR revisions within USDA.

Subpart 401.3—Agency Acquisition Regulations

401.301

Policy.

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

(b) Each designated Mission Area senior contracting official is authorized to issue or authorize the issuance of, at any organizational level, internal guidance which does not have a significant effect beyond the internal operating procedures of the activity, or a significant cost or administrative impact on offerors or contractors. Internal guidance issued by contracting activities will not be published in the Federal Register . Mission Area contracting leadership shall ensure that the guidance, procedures, or instructions issued—

(1) Are consistent with the policies and procedures contained in this regulation and the USDA Contracting Desk Book;

(2) Follow the format, arrangement, and numbering system of this regulation to the extent practicable;

(3) Contain no material which duplicates, paraphrases, or is inconsistent with this regulation; and

(4) Are numbered and identified by use of alphabetical suffices to the chapter number as follows:

(i) Marketing and Regulatory Programs (MRP).

(ii) Research, Education and Economics (REE).

(iii) Food, Nutrition and Consumer Services (FNCS).

(iv) Natural Resources and Environment (NRE).

(v) Farm Production and Conservation (FPAC).

(vi) Food Safety and Inspection Services (FSIS).

(vii) [Reserved]

(viii) Departmental Administration (DA) or Departmental Management (DM).

(ix) [Reserved]

(x) Rural Development (RD).

401.304

Agency control and compliance procedures.

(a) The AGAR System is under the direct oversight and control of the SPE, who is responsible for review and issuance of all Department-wide acquisition regulations published in the Federal Register to assure compliance with FAR part 1.

(b) The SPE is also responsible for review and issuance of unpublished, Department-wide internal guidance under the AGAR System.

(c) The Mission Area senior contracting official is responsible for establishment and implementation of formal procedures for oversight and control of unpublished internal guidance issued within the contracting activity to implement FAR or AGAR requirements. These procedures shall be subject to the review and approval by the SPE.

(d) The SPE is responsible for evaluating coverage under the AGAR system to determine applicability to other agencies and for recommending coverage to the FAR Secretariat for inclusion in the FAR.

(e) Recommendations for revision of existing FAR coverage or new FAR coverage shall be submitted by the Mission Area senior contracting official to the SPE for further action.

401.370

Exclusions.

Subject to the policies of FAR 1.3, certain USDA acquisition policies and procedures may be excluded from the AGAR under appropriately justified circumstances, such as:

(a) Subject matter which is effective for a period less than 12 months.

(b) Subject matter which is instituted on an experimental basis for a reasonable period.

(c) Acquisition procedures instituted on an interim basis to comply with the requirements of statute, regulation, Executive Order, Office of Management and Budget (OMB) Circular, or Office of Federal Procurement Policy (OFPP) Policy Letter.

401.371

USDA Contracting Desk Book.

(a) The SPE may issue and update the USDA Contracting Desk Book, consistent with the policies of the FAR and the AGAR, for the following purposes:

(1) To communicate Department-wide policy and/or procedural guidance to contracting activities;

(2) To delegate to procurement officials the authority to make determinations or to take action to implement the policies of the FAR or the AGAR; and,

(3) To establish internal policy and procedures on an interim basis, prior to incorporation in the AGAR or in a Departmental Directive.

(b) The USDA Contracting Desk Book is only available in electronic format on the USDA procurement website.

401.372

Departmental directives.

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

Subpart 401.4—Deviations From the FAR and AGAR

401.402

Policy.

Requests for authority to deviate from the provisions of the FAR or the AGAR shall be submitted in writing as far in advance of the situation as time will permit. Each request for deviation shall contain the following:

(a) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR and AGAR;

(b) The reason why the deviation is considered necessary or would be in the best interest of the Government;

(c) If applicable, the name of the contractor and identification of the contract affected;

(d) A statement as to whether the deviation has been requested previously ( print page 81018) and, if so, circumstances of the previous request;

(e) A description of the intended effect of the deviation;

(f) A statement of the period of time for which the deviation is needed; and

(g) Any pertinent background information which will contribute to a full understanding of the desired deviation.

401.403

Individual deviations.

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

401.404

Class deviations.

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

Subpart 401.6—Career Development, Contracting Authority, and Responsibilities

401.601

General.

(a) The authority and responsibility vested in the Secretary to manage USDA's acquisition function is delegated through the Assistant Secretary for Administration to the SPE. This broad authority includes, but is not limited to, the following responsibilities:

(1) Prescribing and publishing Departmental acquisition policies, regulations, and procedures.

(2) Taking any necessary actions consistent with policies, regulations, and procedures with respect to purchases, contracts, leases, and other transactions.

(3) Designating contracting officers.

(4) Establishing clear lines of contracting authority.

(5) Evaluating and monitoring the performance of USDA's acquisition system.

(6) Managing and enhancing career development of the acquisition workforce.

(7) Participating in the development of Government-wide acquisition policies, regulations, and standards; and determining specific areas where government-wide performance standards should be established and applied.

(8) Determining areas of Department- unique standards and developing unique Department-wide standards.

(9) Certifying to the Secretary that the acquisition system meets approved standards.

(b) The SPE may delegate specified contracting authority and the responsibility to manage related acquisition functions.

(c) Unless prohibited by the FAR, the AGAR, or by other applicable statutes and regulations, the SPE may redelegate specified authority to make determinations in order to implement the policies and procedures of the FAR. Such delegations shall be in writing but need not be published. Such delegations may be made by the HCA if authority has been delegated by the SPE.

401.602

Contracting officers.

401.602-3

Ratification of unauthorized commitments.

(a) Ratification means the signed, documented action taken by an authorized official to approve and sanction a previously unauthorized commitment. Unauthorized commitment means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government.

(b) Procedures are in accordance with the USDA Contracting Desk Book, Part 401.602-3.

401.603

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

401.603-1

General.

The SPE may delegate contracting authority to the extent authorized by general written delegation of acquisition authority appointing qualified individuals as contracting officers, in accordance with selection and appointment procedures as stated in the USDA Contracting Desk Book.

PART 402—DEFINITIONS OF WORDS AND TERMS

Subpart 402.1—Definitions

402.101

Definitions.

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

Subpart 402.1—Definitions

402.101

Definitions.

Acquisition official means an individual who has been delegated authority to manage or to exercise acquisition functions and responsibilities.

Agency head or head of the agency means the Secretary of Agriculture (Secretary), Deputy Secretary, or the Assistant Secretary for Administration (ASA).

Head of the Contracting Activity (HCA) means the official with overall responsibility of one or more USDA contracting activities.

Mission Area senior contracting official means the official designated by the Senior Procurement Executive or Head of the Contracting Activity with specific responsibilities within an individual Mission Area's contracting activity.

Senior Procurement Executive (SPE) means the agency official appointed as such by the Head of the Agency pursuant to Executive Order 12931. The Director, Office of Contracting and Procurement, has been designated as the USDA SPE.

PART 403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS

Subpart 403.1—Safeguards

403.101

Standards of conduct.

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

Subpart 403.1—Safeguards

403.101

Standards of conduct.

(a) The standards of conduct for USDA procurement officials are the uniform standards established by the Office of Government Ethics in 5 CFR part 2635, Standards of Ethical Conduct for Employees of the Executive Branch, and FAR 3.104, Procurement Integrity.

(b) Procurement officials and other employees who require advice concerning the application of standards of conduct to any acquisition issue shall obtain opinions from the USDA Office ( print page 81019) of Ethics or the ethics advisory officials within their agency.

PART 404—ADMINISTRATIVE AND INFORMATION MATTERS

Subpart 404.8—Government Contract Files

404.804

Closeout of contract files.

Subpart 404.13—Personal Identity Verification

404.1303

Contract clause.

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

Subpart 404.8—Government Contract Files

404.804

Closeout of Contract Files.

The contracting officer shall insert the clause at AGAR 452.204-70, Modification for Contract Closeout, in all solicitations and contracts that use simplified acquisition procedures.

Subpart 404.13—Personal Identity Verification

404.1303

Contract clause.

FAR 4.13, Personal Identity Verification, establishes the policy and use requirements for FAR 52.204-9. The contracting officer shall insert a clause that contains language similar to that in AGAR 452.204-71 in all covered solicitations and contracts which include FAR 52.204-9.

SUBCHAPTER B—ACQUISITION PLANNING

PART 405—PUBLICIZING CONTRACT ACTIONS

Subpart 405.4—Release of Information

405.404

Release of long-range acquisition estimates.

405.404-1

Release procedures.

Subpart 405.5—Paid Advertisements

405.502

Authority.

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

Subpart 405.4—Release of Information

405.404

Release of long-range acquisition estimates.

405.404-1

Release procedures.

The HCA is the agency head designee pursuant to FAR 5.404-1.

Subpart 405.5—Paid Advertisements

405.502

Authority.

The authority vested in the HCA to authorize publication of paid advertisements in newspapers (44 U.S.C. 3702) is delegated, with power of redelegation, to Mission Area senior contracting officials. A Mission Area senior contracting official's redelegation of this authority shall be in writing.

PART 406—COMPETITION REQUIREMENTS

Subpart 406.2—Full and Open Competition After Exclusion of Sources

406.202

Establishing or maintaining alternative sources.

Subpart 406.3—Other Than Full and Open Competition

406.302

Circumstances permitting other than full and open competition.

406.302-70

Otherwise authorized by law.

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

Subpart 406.2—Full and Open Competition After Exclusion of Sources

406.202

Establishing or maintaining alternative sources.

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

Subpart 406.3—Other Than Full and Open Competition

406.302

Circumstances permitting other than full and open competition.

406.302-70

Otherwise authorized by law.

(a) Authority. Section 1472 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) authorizes the Secretary of Agriculture to award contracts, without competition, to further research, extension, or teaching programs in the food and agricultural sciences.

(b) Limitations. The use of this authority is limited to those instances where it can be determined that contracting without full and open competition is in the best interest of the Government and necessary to the accomplishment of the research, extension, or teaching program. Therefore:

(1) Contracts under the authority of the Act shall be awarded on a competitive basis to the maximum practicable extent.

(2) When full and open competition is not deemed appropriate, the contracting officer shall make a written justification on a case-by-case basis in accordance with procedures in FAR 6.303 and 6.304.

PART 407—[RESERVED]

PART 408—REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 408.8—Acquisition of Printing and Related Supplies

408.802

Policy.

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

Subpart 408.8—Acquisition of Printing and Related Supplies

408.802

Policy.

The Director, Office of Communications (OC) has been designated as the central printing authority in USDA, with the authority to represent the USDA before the Joint Committee on Printing (JCP), the Government Printing Office, and other Federal and State agencies on all matters related to printing.

PARTS 409 AND 410—[RESERVED]

PART 411—DESCRIBING AGENCY NEEDS

Subpart 411.1—Selecting and Developing Requirements Documents

411.101

Order of precedence for requirements documents.

Subpart 411.2—Using and Maintaining Requirements Documents

411.202

Maintenance of standardization documents.

Subpart 411.6—Priorities and Allocations

411.602

General.

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

Subpart 411.1—Selecting and Developing Requirements Documents

411.101

Order of precedence for requirements documents.

(a) OMB Circular A-119 establishes a Federal policy requiring the use of voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical.

(b) An HCA is authorized to submit the determination required by OMB Circular A-119 that a voluntary standard is inconsistent with law or otherwise impracticable. The HCA must submit the determination to OMB through the National Institute of Standards and Technology (NIST) in accordance with the Circular with a copy provided to the SPE.

( print page 81020)

Subpart 411.2—Using and Maintaining Requirements Documents

411.202

Maintenance of standardization documents.

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

Subpart 411.6—Priorities and Allocations

411.602

General.

USDA has authority to issue rated orders under section 202(c) of Executive Order 13603, and the Defense Production Act of 1950, as Amended (DPA), 50 U.S.C. 4501 et seq.

PART 412—ACQUISITION OF COMMERICAL ITEMS

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

412.302

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

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

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES

PART 413—SIMPLIFIED ACQUISITION PROCEDURES

Subpart 413.3—Simplified Acquisition Methods

413.302

Purchase orders.

413.302-5

Clauses.

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

Subpart 413.3—Simplified Acquisition Methods

413.302

Purchase orders.

413.302-5

Clauses.

The contracting officer shall insert the clause at AGAR 452.204-70, Modification for Contract Closeout, in all solicitations and contracts that use simplified acquisition procedures.

PART 414—SEALED BIDDING

Subpart 414.4—Opening of Bids and Award of Contract

414.404

Rejection of bids.

414.407

Mistakes in bids.

414.407-3

Other mistakes disclosed before award.

414.407-4

Mistakes after award.

414.409

Information to bidders.

414.409-2

Award of classified contracts.

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

Subpart 414.4—Opening of Bids and Award of Contract

414.404

Rejection of bids.

414.404-1

Cancellation of invitations after opening.

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

414.407

Mistakes in bids.

414.407-3

Other mistakes disclosed before award.

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

414.407-4

Mistakes after award.

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

414.409

Information to bidders.

414.409-2

Award of classified contracts.

Disposition of classified information shall be in accordance with Departmental Regulation and Manual (3400-001 Series) and in accordance with direction issued by the USDA Office of Homeland Security (OHS), Personnel and Document Security Division.

PART 415—CONTRACTING BY NEGOTIATION

Subpart 415.2—Solicitation and Receipt of Proposals and Information

415.204

Contract format.

Subpart 415.3—Source Selection

415.305

Proposal evaluation.

Subpart 415.6—Unsolicited Proposals

415.604

Agency points of contact.

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

Subpart 415.2—Solicitation and Receipt of Proposals and Information

415.204

Contract format.

The HCA is authorized to exempt contracts from the uniform contract format.

Subpart 415.3—Source Selection

415.305

Proposal evaluation.

Each Mission Area senior contracting official is responsible for establishing procedures regarding the release of cost information to the members of the technical evaluation team per FAR 15.305(a)(4).

Subpart 415.6—Unsolicited Proposals

415.604

Agency points of contact.

Each Mission Area senior contracting official is responsible for establishing points of contact for the control of unsolicited proposals. An unsolicited proposal must be formally submitted to the Agency by way of the point of contact.

PART 416—TYPES OF CONTRACTS

Subpart 416.1—Selecting Contract Types

416.102

Policies.

Subpart 416.2—Fixed-Price Contracts

416.203

Fixed-price contracts with economic price adjustment.

416.203-4

Contract clauses.

Subpart 416.6—Time-and-Materials, Labor- Hour, and Letter Contracts

416.603

Letter contracts.

416.603-2

Application.

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

Subpart 416.1—Selecting Contract Types

416.102

Policies.

The contracting officer shall insert the clause at AGAR 452.204-70, Modification for Contract Closeout, in all solicitations and contracts that use other than cost reimbursement contract types.

Subpart 416.2—Fixed-Price Contracts

416.203

Fixed-price contracts with economic price adjustment.

416.203-4

Contract clauses.

An economic price adjustment clause based on cost indexes of labor or material may be used under the ( print page 81021) conditions listed in FAR 16.203-4(d) after HCA approval and consultation with the Office of the General Counsel (OGC).

Subpart 416.6—Time-and-Materials, Labor-Hour, and Letter Contracts

416.603

Letter contracts.

416.603-2

Application.

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

PARTS 417 AND 418—[RESERVED]

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

PART 419—SMALL BUSINESS PROGRAMS

Subpart 419.2—Policies

419.201

General Policy.

419.201-71

Small business coordinators.

419.201-72

Reports.

Subpart 419.6—Certificates of Competency and Determinations of Responsibility

419.602

Procedures.

419.602-3

Resolving differences between the agency and the Small Business Administration.

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

Subpart 419.2—Policies

419.201

General policy.

419.201-71

Small business coordinators.

The Mission Area senior contracting official shall designate, in writing, small business coordinator(s). The number of coordinators shall be determined by the Mission Area senior contracting official and sufficient for the number of contracting officers or contracting offices.

419.201-72

Reports.

The Office of Small & Disadvantaged Business Utilization (OSDBU) Director shall be responsible for submitting reports concerning USDA's progress and achievements in the procurement preference program.

Subpart 419.6—Certificates of Competency and Determinations of Responsibility

419.602

Procedures.

419.602-3

Resolving differences between the agency and the Small Business Administration.

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

PARTS 420 AND 421—[RESERVED]

PART 422—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 422.3—Contract Work Hours and Safety Standards Act

422.302

Liquidated damages and overtime pay.

Subpart 422.4—Labor Standards for Contracts Involving Construction

422.404

Construction Wage Rate Requirements statute wage determinations.

422.404-6

Modifications of wage determinations.

422.406

Administration and enforcement.

422.406-8

Investigations.

Subpart 422.8—Equal Employment Opportunity

422.804

Affirmative action programs.

422.804-2

Construction.

422.807

Exemptions.

Subpart 422.13—Equal Opportunity for Veterans

422.1305

Waivers.

Subpart 422.14—Employment of Workers With Disabilities

422.1403

Waivers.

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

Subpart 422.3—Contract Work Hours and Safety Standards Act

422.302

Liquidated damages and overtime pay.

The Mission Area senior contracting official is authorized to review determinations of liquidated damages due under section 104(c) of the Contract Work Hours and Safety Standards Act, and to recommend remedial action, if appropriate, in accordance with FAR 22.302(c). Contractors or subcontractors may request review of administrative determinations of liquidated damages by written notice to the contracting officer. The contracting officer shall promptly forward appeals of liquidated damages determinations to the Mission Area senior contracting official.

Subpart 422.4—Labor Standards for Contracts Involving Construction

422.404

Construction Wage Rate Requirements statute wage determinations.

422.404-6

Modifications of wage determinations.

The Mission Area senior contracting official is authorized to process the request for extension of the 90-day period for award after bid opening as provided in FAR 22.404-6(b)(6).

422.406

Administration and enforcement. 422.406-8 Investigations.

The HCA is authorized to submit reports of violations to the agency head in accordance with FAR 22.406-8(d).

Subpart 422.8—Equal Employment Opportunity

422.804

Affirmative action programs.

422.804-2

Construction.

The Mission Area senior contracting official shall ensure that each contracting office awarding nonexempt construction contracts maintains a current listing of covered geographical areas subject to affirmative action requirements specifying goals for minorities and women in covered construction trades, as provided in FAR 22.804-2(b).

422.807

Exemptions.

The HCA oversees exemptions of all or part of the requirements of E.O. 11246 pursuant to FAR 22.807(c).

Subpart 422.13—Equal Opportunity for Veterans

422.1305

Waivers.

The Assistant Secretary for Administration (ASA) is authorized to make the waiver determination in FAR 22.1305(b) that a contract is essential to the national security. The waiver shall be prepared for the ASA's signature and submitted by the Mission Area senior contracting official to the SPE for referral to the ASA.

Subpart 422.14—Employment of Workers With Disabilities

422.1403

Waivers.

The ASA is authorized to make the waiver determinations under FAR 22.1403(a) and FAR 22.1403(b) with the concurrence of the Deputy Assistant Secretary for Federal Contract Compliance Programs, Department of Labor. The waiver shall be prepared for the ASA's signature and submitted by the Mission Area senior contracting official to the SPE for referral to the ASA.

PART 423—ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY

Subpart 423.1—Use of Recovered Materials and Biobased Products

423.107

Agency affirmative procurement programs.

( print page 81022) Subpart 423.3—Notice of Radioactive Material

423.301

Requirements.

Subpart 423.5—Drug-Free Workplace

423.506

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

Subpart 423.6—Notice of Radioactive Material

423.601

Requirements.

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

Subpart 423.1—Use of Recovered Materials and Biobased Products

423.107

Agency affirmative procurement programs.

The USDA affirmative procurement program (APP) policy applicable to all USDA agencies and staff offices is hereby established. Components of the APP are in the USDA Contracting Desk Book Part 423.

Subpart 423.3—Notice of Radioactive Material

423.301

Requirements.

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

Subpart 423.6—Notice of Radioactive Material

423.601

Requirements.

PART 424—[RESERVED]

PART 425—FOREIGN ACQUISITION

Subpart 425.6—American Recovery and Reinvestment Act—Buy American Statute— Construction Materials

425.603

Exceptions.

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

Subpart 425.6—American Recovery and Reinvestment Act—Buy American Statute—Construction Materials

425.603

Exceptions.

The Secretary, without power of redelegation, has the authority to make the necessary determination(s) and authorize award(s) of contract(s) in accordance with FAR 25.603(b).

SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS

PART 426—OTHER SOCIOECONOMIC PROGRAMS

Subpart 426.5—Drug-Free Workplace

426.505

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

The SPE will submit the request for a waiver to the agency head with a recommendation for action per FAR 23.506(e).

PART 427—[RESERVED]

PART 428—BONDS AND INSURANCE

Subpart 428.1—Bonds and Other Financial Protections

428.101

Bid guarantees.

428.101-1

Policy on use.

428.106

Administration.

428.106-6

Furnishing information.

Subpart 428.2—Sureties and Other Security for Bonds

428.203

Individual sureties.

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

Subpart 428.1—Bonds and Other Financial Protections

428.101

Bid guarantees.

428.101-1

Policy on use.

The SPE may authorize class waivers of the requirement to obtain bid guarantees per FAR 28.101-1(c).

428.106

Administration.

428.106-6

Furnishing information.

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

Subpart 428.2—Sureties and Other Security for Bonds

428.203

Individual sureties.

Evidence of possible criminal or fraudulent activities by an individual surety shall be reported to the OIG in accordance with Departmental Regulations (1700 series). The Mission Area senior contracting official shall establish procedures to ensure protection and conveyance of deposited securities of the types listed in FAR 28.204-1 through 28.204-3.

PART 429—[RESERVED]

PART 430—COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 430.2—CAS Program Requirements430.201 Contract requirements.

430.201-5

Waiver.

430.202

Disclosure requirements.

430.202-2

Impracticality of submission.

430.202-8

Subcontractor disclosure statements.

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

Subpart 430.2—CAS Program Requirements

430.201

Contract requirements.

430.201-5

Waiver.

The SPE, without the authority to further redelegate, is authorized to request the Cost Accounting Standards Board to waive the application of the Cost Accounting Standards (CAS) in accordance with FAR 30.201-5.

430.202

Disclosure requirements.

430.202-2

Impracticality of submission.

The Secretary, without the power to redelegate, is authorized to determine, in accordance with 48 CFR 9903.202-2, that the Disclosure Statement is impractical to secure and to authorize award without obtaining the Disclosure Statement.

430.202-8

Subcontractor disclosure statements.

The Secretary, without the power to redelegate, is authorized to determine, in accordance with 48 CFR 9903.202-2, that the Disclosure Statement for a subcontractor is impractical to secure and to authorize award without obtaining the Disclosure Statement.

PART 431—CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 431.1—Applicability

431.101

Objectives.

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

Subpart 431.1—Applicability

431.101

Objectives.

(a) The SPE is designated as the official authorized to give advance approval of an individual deviation concerning cost principles.

(b) The SPE is designated as the official authorized to give advance approval of a class deviation concerning cost principles after coordination with ( print page 81023) the Civilian Agency Acquisition Council (CAAC).

PART 432—CONTRACT FINANCING

432.001

Definitions.

432.006

Reduction or suspension of contract payments upon finding of fraud.

432.006-5

Reporting.

432.007

Contract financing payments.

Subpart 432.1—Non-Commercial Item Purchase Financing

432.114

Unusual contract financing.

Subpart 432.2—Commercial Item Purchase Financing

432.206

Solicitation provisions and contract clauses.

Subpart 432.3—Loan Guarantees for Defense Production

432.301

Definitions.

Subpart 432.4—Advance Payments for Non- Commercial Items

432.402

General.

432.406

Letters of credit.

432.407

Interest.

432.412

Contract clause.

Subpart 432.7—Contract Funding

432.703

Contract funding requirements.

432.703-3

Contracts crossing fiscal years.

432.770

USDA specific funding limitations.

Subpart 432.8—Assignment of Claims

432.802

Conditions.

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

432.001

Definitions.

Agency contract finance office is the office, other than the office of the requisitioner, providing funding or performing funding record keeping for the contract action.

Head of agency. For the purposes of this part, head of the agency means, exclusively, the Secretary or the Deputy Secretary.

Remedy coordination official (RCO). The USDA RCO is the Assistant Secretary for Administration.

Responsible fiscal authority is that officer in the agency contract finance office with the responsibility to ensure that adequate funds are available and usable for the intended purpose.

432.006

Reduction or suspension of contract payments upon finding of fraud.

432.006-5

Reporting.

The annual report required by FAR 32.006-5 is to be prepared by the SPE and submitted to the Secretary within 90 calendar days after the end of the fiscal year. When signed by the Secretary, the report is to be maintained by the SPE.

432.007

Contract financing payments.

The Mission Area senior contracting official may prescribe, on a case-by-case basis, a shorter period for financing payments.

Subpart 432.1—Non-Commercial Item Purchase Financing

432.114

Unusual contract financing.

The HCA is authorized to approve unusual contract financing.

Subpart 432.2—Commercial Item Purchase Financing

432.206

Solicitation provisions and contract clauses.

The responsibility for administration of the liquidation provisions of a contract may not be transferred from the contracting officer.

Subpart 432.3—Loan Guarantees for Defense Production

432.301

Definitions.

Within this subpart, the agency or guaranteeing agency is the HCA and may not be redelegated.

Subpart 432.4—Advance Payments for Non-Commercial Items

432.402

General.

An HCA is designated as the individual responsible for making the findings and determination, and for approval of the contract terms concerning advance payments.

432.406

Letters of credit.

The HCA is designated as the individual responsible for coordination with the Department of Treasury concerning letters of credit.

432.407

Interest.

(a) The HCA is designated as the individual who may authorize, on a case-by-case basis, advance payments without interest for the contract types described in FAR 32.407(d)(1), through (4). The signed determination and findings supporting these authorizations shall be included in the contract files.

(b) The SPE is designated as the individual who may authorize advance payments without interest other than those described in paragraph (a) of this section.

432.412

Contract clause.

The decision to use Alternates I or III to FAR 52.232-12 must be supported by a determination and finding.

Subpart 432.7—Contract Funding

432.703

Contract funding requirements.

Use the clause AGAR 452.232-70, Limitation of Government's Obligation, in solicitations and resultant incrementally funded fixed-price contracts.

432.703-3

Contracts crossing fiscal years.

Funds appropriated to USDA may be used for one-year contracts which are to be performed in two fiscal years so long as the total amount for such contracts is obligated in the year for which the funds are appropriated (7 U.S.C. 2209c).

432.770

USDA specific funding limitations.

The expenditure of any USDA appropriation for any consulting service through any contract, pursuant to section 3109 of Title 5 of the U.S. Code shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law (7 U.S.C. 2225a).

Subpart 432.8—Assignment of Claims

432.802

Conditions.

Written notices of assignment and a true copy of the assigned instrument are to be sent to the contracting officer rather than the agency head per FAR 32.802(e)(1). Other copies are distributed as directed in FAR 32.802.

PART 433—PROTESTS, DISPUTES AND APPEALS

Subpart 433.1—Protests

433.102

General.

Subpart 433.2—Disputes and Appeals

433.203

Applicability.

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

Subpart 433.1—Protests

433.102

General.

The SPE is responsible for coordinating the processing of bid protests lodged with the Government Accountability Office (GAO).

Subpart 433.2—Disputes and Appeals

433.203

Applicability.

The Assistant Secretary for Administration is authorized to determine the applicability of the Contract Disputes Act to contracts with foreign governments pursuant to FAR 33.203.

( print page 81024)

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

PART 434—MAJOR SYSTEM ACQUISITION

434.001

Definition.

434.002

Policy.

434.003

Responsibilities.

434.005

General requirements.

434.005-6

Full production.

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

434.001

Definition.

Pursuant to OMB Circular No. A-11 (Circular A-11) and the definition at FAR 2.101, within USDA, a system shall be considered a major system if:

(a) The system has been identified as a Major IT Investment pursuant to USDA Departmental Regulation 3030- 008, Definition of Major Information Technology Investments,

(b) The total non-IT acquisition costs are estimated to be $50 million or more, or

(c) The system, regardless of estimated acquisition or life cycle costs, has been specifically designated to be a major system by the USDA Acquisition Executive or by the Major Information Technology Systems Executive. The Assistant Secretary for Administration (ASA) is the USDA Acquisition Executive for major system acquisition other than acquisitions of information technology.

434.002

Policy.

In addition to the policy guidance at FAR 34.002 and other parts of the FAR, the policies outlined in part 7 of Circular A-11 should serve as guidelines for all contracting activities in planning and developing systems, major or otherwise.

434.003

Responsibilities.

(a) The key executives of USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant Secretaries) individually or as a group will participate in making four key decision in each major system acquisition process.

(1) Identification and definition of a specific mission need to be fulfilled, the relative priority assigned within the agency, and the general magnitude of resources that may be invested.

(2) Selection of competitive system design concepts to be advanced to a test/demonstration phase or authorization to proceed with the development of a noncompetitive (single concept) system.

(3) Commitment of a system to full-scale development and limited production.

(4) Commitment of a system to full production.

(b) The Chief Information Officer (CIO) is the Major Information Technology Systems Executive. For acquisitions of information technology, the CIO will ensure that Circular A-11 is implemented in USDA and that the management objectives of Circular A-11 are realized. The CIO is responsible for designating the program manager for each major information technology system acquisition, designating an acquisition to be a major information technology system acquisition, and approving the written charter and project control system for each major information technology system acquisition.

(c) The ASA will ensure that Circular A-11 is implemented in USDA and that the management objectives of Circular A-11 are realized. The SPE is responsible for designating the program manager for each major system non-IT acquisition, designating an acquisition to be a major system non-IT acquisition, and approving the written charter and project control system for each major system non-IT acquisition.

(d) The Mission Area senior contracting official must:

(1) Ensure compliance with the requirements of Circular A-11, FAR part 34, and AGAR part 434.

(2) Ensure that potential major system acquisitions are brought to the attention of the USDA Acquisition Executive or the Major Information Technology Systems Executive, as appropriate.

(3) Coordinate with Mission Area Program Managers (MASPMs) to recommend qualified candidates for designation as program managers for each major system acquisition within their jurisdiction.

(4) Coordinate with MASPMs to verify that program managers fulfill their responsibilities and discharge their duties.

(5) Cooperate with the ASA and Major Information Technology Systems Executive in implementing the requirements of Circular A-11.

(e) The program manager is responsible for planning and executing the major system acquisition, ensuring appropriate coordination with the USDA Acquisition Executive, Major Information Technology Systems Executive, and other key USDA executives.

434.005

General requirements.

434.005-6

Full production.

The Secretary or the Secretary's designee for the specific program is the agency head for the purposes of FAR 34.005-6.

PART 435—[RESERVED]

PART 436—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Subpart 436.2—Special Aspects of Contracting for Construction

436.205

Statutory cost limitations.

436.209

Construction contracts with architect-engineer firms.

436.213

Special procedures for sealed bidding in construction contracting.

436.213-2

Presolicitation notices.

Subpart 436.5—Contract Clauses

436.500

Scope of subpart.

436.570

Emergency response, fire suppression and liability.

Subpart 436.6—Architect-Engineer Services

436.602

Selection of firms for architect- engineer contracts.

436.602-1

Selection criteria.

436.602-2

Evaluation boards.

436.602-5

Short selection process for contracts not to exceed the simplified acquisition threshold.

436.603

Collecting data on and appraising firm's qualifications.

436.609

Contract clauses.

436.609-1

Design within funding limitations.

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

Subpart 436.2—Special Aspects of Contracting for Construction

436.205

Statutory cost limitations.

(a) When it appears that funds may be insufficient for all the desired features of construction, the contracting officer may provide in the solicitation for a base bid item covering the work as specified and for one or more additive or deductive bid items which progressively add or omit specified features of the work in a stated order of priority.

(b) In the alternative, the contracting officer may use the policies and procedures found in FAR 17.2, Options.

436.209

Construction contracts with architect-engineer firms.

The HCA is authorized to approve a contract to construct a project, in whole or in part, to the firm that designed the project (inclusive of its subsidiaries or affiliates).

436.213

Special procedures for sealed bidding in construction contracting.

436.213-2

Presolicitation notices.

The authority to waive a presolicitation notice on any construction requirement when the proposed contract is expected to exceed the simplified acquisition threshold is restricted to the HCA.

( print page 81025)

Subpart 436.5—Contract Clauses

436.500

Scope of subpart.

This subpart prescribes clauses for insertion in USDA solicitations and contracts for construction and for dismantling, demolition, or removal of improvements or structures. The contracting officer shall use the clauses as prescribed in contracts that exceed the simplified acquisition threshold. The contracting officer may use the clauses if the contract amount is expected to be at or below the simplified acquisition threshold.

436.570

Emergency response, fire suppression and liability.

The contracting officer shall insert the clause at AGAR 452.236-70, Emergency Response, Fire Suppression and Liability, in Integrated Resource Service Contracts (IRSCs) awarded for the Forest Service. The clause AGAR 452.236-70, Emergency Response, Fire Suppression and Liability, is optional for non-IRSCs.

Subpart 436.6—Architect-Engineer Services

436.602

Selection of firms for architect-engineer contracts.

436.602-1

Selection criteria.

The Mission Area senior contracting official is authorized to approve the use of design competition under the conditions in FAR 36.602-1(b).

436.602-2

Evaluation boards.

The Mission Area senior contracting official shall establish written procedures for providing permanent or ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-2.

436.602-5

Short selection process for contracts not to exceed the simplified acquisition threshold.

The Mission Area senior contracting official may include either or both procedures in FAR 36.602-5(a) and (b) in the procedures for evaluation boards.

436.603

Collecting data on and appraising firm's qualifications.

Mission Area senior contracting officials for Mission Areas that require architect-engineer services shall establish procedures to comply with the requirements of FAR 36.603.

436.609

Contract clauses.

436.609-1

Design within funding limitations.

(a) Should the HCA appoint a designee to make the determination in FAR 36.609-1(c)(1), the appointment may be to one no lower than the official authorized to commit program funds for the work being acquired.

(b) The contracting officer, with the advice of appropriate technical representatives, may make the determination in FAR 36.609-1(c)(2) or (3).

PART 437—SERVICE CONTRACTING

Subpart 437.1—Service Contracts—General

437.104

Personal services contracts.

Subpart 437.2—Advisory and Assistance Services

437.204

Guidelines for determining availability of personnel.

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

Subpart 437.1—Service Contracts— General

437.104

Personal services contracts.

USDA has the following specific statutory authorities to contract for personal services:

(a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) authorizes contracting with persons or organizations on a temporary basis, without regard to civil service compensation classification standards in 5 U.S.C., chapter 51 and subchapter III of chapter 53, Provided:

(1) That no expenditures shall be made unless specifically provided for in the applicable appropriation, and

(2) Expenditures do not exceed any limitations prescribed in the appropriation.

(b) Title 7 U.S.C., section 1627 authorizes the Secretary of Agriculture to contract with technically qualified persons, firms or organizations to perform research, inspection, classification, technical, or other special services, without regard to the civil- service laws, if it is for a temporary basis and for a term not to exceed six months in any fiscal year.

Subpart 437.2—Advisory and Assistance Services

437.204

Guidelines for determining availability of personnel.

The HCA is authorized to request the use of non-Government evaluators in proposal evaluations. Each decision shall be supported by a written determination in accordance with FAR 37.204.

PARTS 438 THROUGH 441— [RESERVED]

SUBCHAPTER G—CONTRACT MANAGEMENT

PARTS 442 THROUGH 444— [RESERVED]

PART 445—GOVERNMENT PROPERTY

Subpart 445.1—General

445.103

General.

Subpart 445.3—Authorizing the Use and Rental of Government Property

445.301

Use and rental.

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

Subpart 445.1—General

445.103

General.

The Mission Area senior contracting official is authorized to make determinations for charging rent on the basis of use under the Use and Charges clause in FAR 52.245-9 as prescribed in FAR 45.103(a)(5).

Subpart 445.3—Authorizing the Use and Rental of Government Property

445.301

Use and rental.

(a) The Mission Area senior contracting official is authorized to make determinations for providing facilities to contractors as prescribed in FAR 45.301(f).

(b) Requests for non-Government use of plant equipment as prescribed in FAR

45.301 shall be submitted by the HCA to the SPE for approval.

PARTS 446 THROUGH 448— [RESERVED]

PART 449—TERMINATION OF CONTRACTS

Subpart 449.5—Contract Termination Clauses

449.501

General.

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

Subpart 449.5—Contract Termination Clauses

449.501

General.

Use of special purpose termination clauses pursuant to the authority of FAR 49.501 shall be approved in advance by the HCA.

( print page 81026)

PART 450—EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

Subpart 450.1—Extraordinary Contractual Actions

450.100

Definitions.

450.102

Delegation of and limitations on exercise of authority.

450.102-1

Delegation of authority.

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

Subpart 450.1—Extraordinary Contractual Actions

450.100

Definitions.

Approving authority, as used in this part, means the Assistant Secretary for Administration.

Secretarial level, as used in this part means the Assistant Secretary for Administration.

450.102

Delegation of and limitations on exercise of authority.

450.102-1

Delegation of authority.

The Assistant Secretary for Administration is authorized to approve all actions under FAR part 50 except indemnification actions listed in FAR 50.102-1(d), which must be approved by the Secretary, without power of redelegation.

PART 451—[RESERVED]

SUBCHAPTER H—CLAUSES AND FORMS

PART 452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 452.2—Texts of Provisions and Clauses

452.204-70

Modification for Contract Closeout

452.204-71

Personal Identity Verification of Contractor Employees.

452.232-70

Limitation of Government's Obligation.

452.236-70

Emergency Response, Fire Suppression, and Liability.

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

Subpart 452.2—Texts of Provisions and Clauses

452.204-70

Modification for Contract Closeout.

As prescribed in AGAR 404.804, 413.302-5, and 416.102, insert the following clause:

Modification for Contract Closeout (Month Year)

“Upon contract closeout for contracts utilizing anything other than cost reimbursement:

(a) If unliquidated funds in the amount of $1000 or less remain on the contract, the Contracting Officer (CO) shall issue a unilateral modification for deobligation. The contractor will receive a copy of the modification but will not be required to provide a signature. The CO shall immediately proceed with contract closeout upon completion of the period of performance, receipt and acceptance of supplies or services, and final payment.

(b) Upon contract closeout for contracts utilizing SAP: if unliquidated funds of more than $1000 remain on the contract, the CO shall issue a bilateral modification for deobligation. The contractor will receive a copy of the modification and will be required to provide a signature. (The CO may also request a “Contractor Release of Claims” be completed by the contractor, although not required for contracts and orders using SAP.) If the bilateral modification and Release of Claims are not returned to the CO within 60 days, the CO shall release the modification as unilateral and proceed with contract closeout upon completion of the period of performance, receipt and acceptance of supplies or services, and final payment.

(c) Upon contract closeout for contracts utilizing anything other than cost reimbursement, if unliquidated funds of more than $1000 remain on the contract, the CO shall issue a bilateral modification for deobligation. The contractor will receive a copy of the modification and a “Contractor Release of Claims” and will be required to provide a signature on both forms. If the bilateral modification and Release of Claims are not returned to the CO within 120 days, the CO shall release the modification as unilateral and proceed with contract closeout upon completion of the period of performance, receipt and acceptance of supplies or services, and final payment.

(End of Clause)

452.204-71

Personal Identity Verification of Contractor Employees.

As prescribed in AGAR 404.1303, insert the following clause:

Personal Identity Verification of Contractor Employees (Month Year)

(a) The contractor shall comply with the personal identity verification (PIV) policies and procedures established by the United States Department of Agriculture (USDA) Directives 4620-002 series.

(b) Should the USDA Directives 4620-002 require the exclusion of a contractor's employee, the contracting officer will notify the contractor in writing. The contractor must appoint a representative to manage compliance with the PIV policies established by the USDA Directives 4620-002 and to maintain a list of employees eligible for a USDA LincPass required for performance of the work.

(c) The responsibility of maintaining a sufficient workforce remains with the contractor. Contractor employees may be barred by the Government from performance of work should they be found ineligible or to have lost eligibility for a USDA LincPass. Failure to maintain a sufficient workforce of employees eligible for a USDA LincPass may be grounds for termination of the contract.

(d) The contractor shall insert this clause in all subcontracts when the subcontractor is required to have routine unaccompanied physical access to a Federally controlled facility and/or routine unaccompanied access to a Federally controlled information system.

(e) The PIV Sponsor for this contract is a designated program point of contact, which in most cases is the COR, unless otherwise specified in this contract. The PIV Sponsor will be available to receive contractor identity information from [hours and days to be added by CO] to [hours and days to be added by CO] at [office address for registration to be added by CO]. The Government will notify the contractor if there is a change in the PIV Sponsor, the office address, or the office hours for registration; however, it is the contractor's responsibility to meet all aspects of paragraphs (c), (d), and (e).

(End of Clause)

452.232-70

Limitation of Government's Obligation.

As prescribed in AGAR 432.703, insert the following clause:

Limitation of Government's Obligation (Month Year)

(a) Contract line item(s) listed below is/are incrementally funded. For this/these item(s), the sum of $ [Contracting Officer insert after negotiations] of the total price is presently available for payment and allotted to this contract. ( print page 81027)

Line item	Description	Total contract value	Funded amount	Unfunded amount	Funding date
(Add line items as needed)