2010-20198. Department of Education Acquisition Regulation

AGENCY:

Office of the Chief Financial Officer, Department of Education (Department).

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Secretary proposes to reissue the Department of Education Acquisition Regulation (EDAR) in order to update it to accurately implement the current Federal Acquisition Regulation (FAR) and Department policies.

DATES:

We must receive your comments on or before September 22, 2010.

ADDRESSES:

Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments.

Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “How To Use This Site.”
Postal Mail, Commercial Delivery, or Hand Delivery. If you mail or deliver your comments about these proposed regulations, address them to Nicole Evans, U.S. Department of Education, 400 Maryland Avenue, SW., room 7164, Potomac Center Plaza, Washington, DC 20202-4200.

Privacy Note:

The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available on the Internet.

FOR FURTHER INFORMATION CONTACT:

Nicole Evans. Telephone: (202) 245-6172 or via Internet: Nicole.Evans@ed.gov.

If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

Individuals with disabilities may obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.

We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments, in person, in room 7137, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background

The EDAR was last updated in 1987. In the years since then, the FAR has changed substantially. These changes caused a need for the Department to update the EDAR so that it correctly implements the FAR and reflects Department policy.

Significant Proposed Regulations

We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.

Generally, these proposed regulations are issued under the authority of 5 U.S.C. 301, which authorizes the heads of agencies to issue regulations governing the agency, and 20 U.S.C. 1018a, which authorizes procurement flexibility for the performance based organization (PBO), the Office of Federal Student Aid (FSA), for the delivery of Federal student financial assistance. We use the term PBO or FSA when referring to FSA in this preamble.

Subchapter A—General

Part 3401 ED Acquisition Regulation System

FAR: FAR Part 1 (Federal acquisition regulations system) sets forth the purpose, authority, and structure of the FAR, authorizes agency FAR supplements and deviations from the FAR, and discusses career development, contracting authority, and responsibilities.

Current Regulations: The current EDAR predates the procurement flexibility authorized by 20 U.S.C. 1018a and contains outdated information on the location of regulations and on the roles and responsibilities within the Department. The current regulations also do not include a section on ratification of unauthorized commitments or on the nomination and appointment of contracting officer's representatives.

Proposed Regulations: The proposed regulations would modify 3401.104 (Applicability) to add subparagraph (b) explaining that the PBO has specific contracting authority.

Proposed subparagraph (c) would add an explanation that when using non-appropriated funds the Department will follow the FAR and EDAR to the maximum extent practicable.

We are proposing to revise 3401.105-3 (Copies) to reflect the current method for obtaining copies of this regulation.

We are also proposing to revise 3401.3 (Agency acquisition regulations) to add two paragraphs addressing policy regarding the agency's supplementation of the FAR and explaining how the EDAR is published and codified.

Proposed changes to 3401.4 (Deviations) would make the Senior Procurement Executive (SPE) the approving official for individual deviations to the FAR and EDAR (3401.403), and the Chief Acquisition Start Printed Page 51885Officer (CAO) the approving official for class deviations (3401.404).

We are further proposing to revise 3401.601 (General) to explain the current delegation of contracting authority in the Department.

Proposed 3401.602-3 (Ratification of unauthorized commitments) would outline the Department's policy and procedures on ratifying unauthorized commitments.

Proposed 3401.670 (Nomination and appointment of contracting officer's representatives (CORs)) would add information on nominating and appointing contracting officer's representatives (CORs). Proposed 3401.670-3 provides for Contracting Officers to insert a clause concerning CORs in all solicitations and contracts for which a COR will be (or is) appointed.

Reasons: The proposed changes to this part provide the reference to the PBO statute authorizing the PBO's procurement flexibilities and provide more information to the contracting community and the public about the EDAR, certain Department policies and procedures, and the roles and responsibilities of different contracting personnel in the Department.

Part 3402 Definitions of Words and Terms

FAR: FAR Part 2 (Definitions of words and terms) defines relevant words and terms used in the FAR.

Current Regulations: The current EDAR's part 3402 defines only two terms, Head of the Contracting Activity and Procurement Executive, and prescribes the use of a definitions clause.

Proposed Regulations: We are proposing to revise 3402.101 (Definitions) to add definitions for Chief Acquisition Officer, Chief of the Contracting Office, Contracting Officer's Representative, Head of the Contracting Activity, Performance-Based Organization, Senior Procurement Executive, and Department or ED.

Proposed 3402.101-70 (Abbreviations and acronyms) would add twelve abbreviations and acronyms relevant to the EDAR.

Reasons: The proposed changes to this part would clarify the terminology and the definitions of terms used in the EDAR.

Part 3403 Improper Business Practices and Personal Conflicts of Interest

FAR: FAR Part 3 (Improper business practices and conflicts of interest) regulates standards of conduct, gratuities to government personnel, reports of suspected antitrust violations, contingent fees, and contracts with government employees or organizations owned or controlled by them.

Current Regulations: The current EDAR requires Department personnel to report violations of the gratuities clause, antitrust violations, and misrepresentation or violation of the covenant against contingent fees.

The current EDAR specifies that the approving official for contracts with government employees or organizations controlled by them is the Deputy Under Secretary for Management.

Proposed Regulations: We are proposing to revise 3403.6 (Contracts with government employees or organizations owned or controlled by them) to change the approving official for exceptions to the policy in FAR 3.601 (prohibiting contracts with Government employees or organizations owned or controlled by them) to the Head of Contracting Activity (HCA).

Reasons: The proposed revisions identify the official delegated the authority to authorize exceptions to the policy in FAR 3.601.

Subchapter B—Competition and Acquisition Planning

Part 3405 Publicizing Contract Actions

FAR: FAR Part 5 (Publicizing contract actions) regulates how agencies are to disseminate information on contract actions.

Current Regulations: The current EDAR contains provisions on notices to perform market surveys and paid advertisements. The regulations do not implement the procurement flexibility authorized by the PBO statute.

Proposed Regulations: We are proposing to revise 3405.2 (Synopses of proposed contract actions) to add four new sections implementing the PBO's authorities related to publicizing, including the PBO's authority related to modular contracting (3405.202 Exceptions and 3405.205 Special Situations), reduced response timeframes (3405.203 Publicizing and response time), and two-phase source selection (3405.207 Preparation and transmittal of synopses).

We are also proposing to add requirements to 3405.270 (Notices to perform market surveys) to require the contracting officer to include additional information in notices of proposed contract actions when anticipating a sole source contract.

Reasons: The proposed changes to 3405.2 would implement the PBO's authorities for modular contracting, which mandate notice of requirements under section 1018a(g)(5)(A-C). The proposed change to 3405.270 would increase availability of information to the marketplace when the Department anticipates a sole source contract.

Part 3406 Competition Requirements

FAR: FAR Part 6 (Competition requirements) regulates how agencies compete various contract actions.

Current Regulations: The current EDAR does not address this part of the FAR.

Proposed Regulations: Proposed 3406.001 (Applicability) would state that this part of the FAR does not apply to modular contracting performed by the PBO.

Proposed 3406.3 (Other than full and open competition) would add new 3406.302-5 (Authorized or required by statute) stating that the PBO can award noncompetitive awards as part of its modular contracting authority.

Proposed 3406.5 (Competition advocates) would identify the Department's Competition Advocate.

Reasons: The proposed change to add this part would implement the PBO's modular contracting authority authorized by statute and identify the Competition Advocate mandated in FAR 6.5.

Part 3408 Required Sources of Supplies and Services

FAR: FAR Part 8 (Required sources of supplies and services) mandates certain sources and details how agencies must use those sources.

Current Regulations: The current EDAR requires a clause in subpart 3408.8 (Acquisition of printing and related supplies) and addresses paperwork reduction in part 3427.

Proposed Regulations: The proposed changes to 3452.208-71 (Printing) would update the definition of “unit” to match the definition in the Government Printing and Binding Regulations. Specifically, the allowable size counted as one unit is changed from an 8.5″ x 11″ page to an image size of 10.75″ x 14.25″ on an 11″ x 17″ page. The proposed inclusion of 3408.871 (Paperwork Reduction) in this part would move the prescription for the paperwork reduction clause to the appropriate section of the EDAR.

Reasons: The proposed changes would update the EDAR to match the Government Printing and Binding Regulations and the FAR structure.

Part 3409 Contractor Qualifications

FAR: FAR Part 9 (Contractor Qualifications) includes sections on debarment, suspension, and ineligibility, as well as organizational and consultant conflicts of interest.

Current Regulations: The current EDAR does not adequately cover the Start Printed Page 51886topics of debarment, suspension, and ineligibility or organizational conflict of interest.

Proposed Regulations: The proposed changes in 3409.4 (Debarment, suspension, and ineligibility) and 3409.5 (Organizational and consultant conflicts of interest) would provide additional details regarding these issues.

Proposed 3409.401 (Applicability) would indicate that this subsection does not apply to non-procurement debarment and suspension.

Proposed 3409.403 (Definitions) would designate the Senior Procurement Executive as the Department's debarring official and suspending official.

The proposed changes to 3409.406-3 (Procedures) would provide additional detail regarding the steps involved in the debarment process.

Proposed 3409.407-3 (Procedures) would provide similar, additional detail on the steps involved in the suspension process.

We are proposing to revise 3409.506 (Procedures) to give the HCA flexibility to terminate or not terminate contracts in cases of conflict of interest, and designate the HCA, rather than the Senior Procurement Executive, as the authorized reviewer and decision maker in such matters.

We are proposing to add 3409.507 (Solicitation provision and contract clause), to add prescriptions requiring contracting officers to include the provision in 3452.209-70 (Conflict of interest certification) and the clause at 3452.209-71 (Conflict of interest) in all solicitations and contracts, respectively, for services above the simplified acquisition threshold. We are proposing to add 3409.570 (Certification at or below the simplified acquisition threshold), which describes the conflict of interest certification that contractors make when entering into a contract with the Department at or below the simplified acquisition threshold.

Reasons: The proposed changes to the regulations would more clearly and completely describe agency procedures that implement the sections of the FAR pertaining to suspension, debarment, and conflicts of interest. Publication of agency procedures on these matters would be beneficial to the contractor community.

Part 3412 Acquisition of Commercial Items

FAR: FAR Part 12 (Acquisition of commercial items) describes the methods of purchasing commercial products and services.

Current Regulations: The current EDAR does not address this part of the FAR.

Proposed Regulations: Proposed 3412.203 (Procedures for solicitation, evaluation, and award) would specify that the PBO has the authority to use simplified acquisition procedures for commercial items without regard to dollar or timeframe limitations.

Proposed 3412.302 (Tailoring of provisions and clauses for the acquisition of commercial items) would identify the HCA as the person who is authorized to approve waivers allowing COs to tailor provisions and clauses for the acquisition of commercial items.

Reasons: These proposed changes implement the PBO's contracting authority, as well as identify the individual authorized to provide the waivers required in FAR 12.302 when a Contracting Officer needs to tailor provisions and clauses for the acquisition of commercial items.

Subchapter C—Contracting Methods and Contract Types

Part 3413 Simplified Acquisition Procedures

FAR: FAR Part 13 (Simplified acquisition procedures) allows and describes streamlined ways of purchasing goods and services below the simplified acquisition threshold.

Current Regulations: The current EDAR includes 3413.107 (Solicitation and evaluation of quotations), which requires use of certain FAR Part 15 procedures when conducting a simplified acquisition.

Proposed Regulations: We propose to remove 3413.107 (Solicitation and evaluation of quotations) in order to eliminate the requirement to use certain part 15 procedures when conducting a simplified acquisition.

Proposed 3413.003 (Policy) would explain the PBO's authority to use simplified acquisition procedures for commercial items without regard to the dollar or timeframe limitations in FAR 13.5 and explains the PBO's authority to use simplified acquisition procedures for competitively awarded noncommercial items contracts up to $1,000,000 when the procurement is a small business set-aside.

Proposed 3413.303 would allow use of blanket purchase agreements for commercial items up to the threshold of the test program for certain commercial items in FAR 13.500(a).

Reasons: The proposed updates to this part would improve the Department's implementation of FAR Part 13 by removing overly restrictive regulations and by implementing the PBO's authority in section 1018a(e). The current 3413.107 (Solicitation and evaluation of quotations) requires the contracting officer to use FAR Part 15 (Contracting by negotiation) procedures in simplified acquisitions. The simplified acquisition procedures in the FAR are designed to maximize the Department's flexibility. The proposed addition in 3413.303 would allow the Department to use a procurement flexibility authorized in the FAR by allowing use of blanket purchase agreements for commercial items over the simplified acquisition threshold, under the test program for certain commercial items in FAR 13.5.

Part 3414 Sealed Bidding

FAR: FAR Part 14 (Sealed bidding) describes the rules and requirements for using sealed bidding as a method of acquisition.

Current Regulations: The current EDAR identifies the HCA as the official authorized to make determinations under FAR 14.407-3.

Proposed Regulations: We propose to renumber 3414.407 (Mistakes in bids) to match the FAR numbering system.

Reasons: This proposed change would update the EDAR to follow the FAR numbering scheme.

Part 3415 Contracting by Negotiation

FAR: FAR Part 15 (Contracting by negotiation) sets forth procedures for acquiring goods and services through negotiated procurement.

Current Regulations: The current EDAR contains outdated requirements on order of precedence and setting profit prenegotiation objectives, and does not address the PBO's authorities, such as two-phase source selection.

Proposed Regulations: The proposed change to 3415.2 (Solicitation and receipt of proposals and information) would renumber the current 3415.407 (Solicitation provisions) to 3415.209 (Solicitation provisions) to match the FAR numbering of the relevant information. The proposed change to 3415.209(a) would reflect the new numbering of the clause referenced in the paragraph (52.215-1(e)).

Removal of 3415.4 (Solicitation and receipt of proposals and quotations) would eliminate the prescriptive language for an order of precedence clause (3452.215-33).

Proposed 3415.302-70 (Two-phase source selection) would implement the PBO's authority to use a two-phase process to solicit offers and select a source for award.

We are proposing to revise 3415.606 (Agency procedures) to add an HCA-designee as a possible point of contact Start Printed Page 51887for coordination of unsolicited proposals.

Removal of 3415.9 (Profit) would eliminate the requirement for contracting officers to use a certain framework when developing prenegotiation profit objectives.

Reasons: The proposed changes to this section would implement section 1018a(d), eliminate unnecessary requirements on the development of prenegotiation profit objectives, and eliminate unnecessary variation from the FAR-provided clause on order of precedence.

Part 3416 Types of Contracts

FAR: FAR Part 16 (Types of contracts) describes the various contract types and considerations in determining the type of contract to use for a particular acquisition.

Current Regulations: The current EDAR includes requirements relating to negotiated overhead rates in agreements, under FAR 16.7, as well as requirements we propose to leave unchanged, dealing with cost-sharing contracts, contract clauses on cost, and letter contracts.

Proposed Regulations: Proposed 3416.402-2 (Performance incentives) would authorize the Department to use a type of contracting called “award-term contracting” for performance-based contracts or task orders. This section refers the reader to EDAR 3416.470 for the definition of award-term contracting and implementation guidelines.

Proposed 3416.470 (Award-term contracting) would establish policy and procedures for using this type of incentive contracting.

We are proposing to remove 3416.7 (Agreements), which in 3416.701 had provided the prescriptive language for the clause at 3452.216-71 (Negotiated Overhead Rates—Fixed) and in 3416.702 had addressed negotiated overhead rates for Basic Agreements.

Reasons: The proposed addition of the section on award-term contracting would provide the CO with guidance on how to use existing procurement flexibilities allowed under the FAR. The proposed removal of 3416.7 would eliminate unnecessary regulation. The inclusion of overhead rates is permitted by the FAR at the contracting officer's discretion, so the prescription at 3416.7 is unnecessary.

Part 3417 Special Contracting Methods

FAR: FAR Part 17 (Special contracting methods) describes requirements for options and interagency acquisitions under the Economy Act.

Current Regulations: The current EDAR includes one paragraph in this part, under 3417.207 (Exercise of options), which specifies that “after funds become available” means “after funds become available to the contracting officer for obligation.”

Proposed Regulations: We propose to add 3417.204 (Contracts), 3417.5 (Interagency acquisition under the Economy Act), and 3417.70 (Modular contracting). We also propose to modify 3417.207 (Exercise of options).

Proposed 3417.204 (Contracts) would provide that the Department may enter into contracts that exceed the five-year limitation specified in FAR 17.204(e), subject to approval by the HCA for individual contracts or the SPE for classes of contracts.

Proposed 3417.207 (Exercise of options) would add paragraph (f)(2) to explain that the government can accept price reductions offered by contractors at any time during performance of a contract, and that these reductions are not renegotiations if they were not requested by the government.

We propose to add 3417.5 (Interagency acquisitions under the Economy Act), which would address interagency acquisitions procured by the PBO under section 1018a(j).

Proposed 3417.70 (Modular contracting) would detail the PBO's authority to perform successive procurements for systems.

Reasons: FAR 17.204(e) allows agencies to approve contract periods for longer than five years. Implementing this regulation in the EDAR would allow the Department more flexibility in contracting. The other proposed changes to this part would implement the PBO's modular contracting authority.

Subchapter D—Socioeconomic Programs

3419 Small Business Programs

FAR: FAR Part 19 (Small Business Programs) describes requirements for and availability of contracting preference programs for small businesses.

Current Regulations: The current regulations are outdated and address parts of the FAR that no longer exist.

Proposed Regulations: Proposed 3419.201-70 (Office of Small and Disadvantaged Business Utilization (OSDBU)) would describe the role of the OSDBU in implementing FAR 19.201.

Proposed 3419.502-4 (Methods of conducting set-asides) would allow the PBO to procure noncommercial services using simplified acquisition procedures if the procurement does not exceed $1,000,000, is conducted as a small business set-aside, the price charged for supplies associated with the services procured is expected to be less than 20 percent of the total contract price, and the contract is not awarded on a sole-source basis and is not for construction. We are proposing to remove 3419.7 (Subcontracting with Small Business and Small Disadvantaged Business Concerns) and 3419.8 (Contracting with the Small Business Administration (The 8(a) Program).

Reasons: These proposed changes would update the Department's implementation of the FAR and include the PBO's contracting authorities under the PBO's authorizing statute, section 1018a(e) (Use of simplified procedures for commercial items).

The proposed removal of 3419.7 would eliminate requirements that are redundant with current FAR requirements. EDAR 3419.705-2 (Determining the need for a subcontracting plan) includes instructions to the contracting officer on determining the dollar threshold for requirement of a subcontracting plan. The FAR adequately addresses this issue in 19.705-2 (Determining the need for a subcontracting plan). EDAR 3419.708 (Solicitation provisions and contract clauses) currently requires the contracting officer to include in solicitations that include clause 52.219-9 a notification that advises prospective offerors that subcontracting plans may be requested from all concerns determined to be in the competitive range. However, the FAR notifies offerors of the requirements for submitting subcontracting plans in the clauses requiring submission of the plans (52.219-9, Small business subcontracting plan, and its alternates I and II).

The proposed removal of 3419.8 would eliminate this subpart that implemented FAR 19.8, which has changed so significantly as to make 3419.8 irrelevant. Section 3419.801 currently refers to a section of the FAR (19.801) that is no longer in use. Section 3419.870 currently details a source selection procedure no longer relevant due to the detailed source selection procedures in the updated FAR 19.8.

3422 Application of Labor Laws to Government Acquisitions

FAR: FAR Part 22 (Application of labor laws to government acquisitions) describes various laws, policies, and prohibitions governing Federal acquisition.

Current Regulations: The current EDAR does not address this part of the FAR.

Proposed Regulations: We propose to add 3422.10 (Service Contract Act of 1965, as amended) to explain that the 5-year limitation in the Service Contract Start Printed Page 51888Act of 1965, as amended (Service Contract Act), applies to each period of the contract individually, not to the cumulative period of base and option years, and that accordingly no Department contract will have a base or option period longer than five years.

Reasons: This proposed language is based on the Department of Labor's definition of “contract” as it applies to the Service Contract Act. This definition is set forth in the Department of Labor's regulations at 29 CFR 4.143(b) and 29 CFR 4.145(a), which state that an extension of a term of a contract—by option or other means—is a wholly new contract with respect to the Service Contract Act.

3424 Protection of Privacy and Freedom of Information

FAR: FAR Part 24 (Protection of privacy and freedom of information) provides guidance on protection of individual privacy and the Freedom of Information Act.

Current Regulations: The current EDAR includes implementing language for protection of individual privacy, and directs the public to the Department's regulations implementing the Freedom of Information Act.

Proposed Regulations: We propose to add 3424.170 (Protection of human subjects) which would prescribe a solicitation provision and contract clause intended to protect the personal information of anyone involved in research activities of the Department.

We also propose to add 3424.203 (Policy) to state the Department's policy on Freedom of Information Act requests and to provide prescriptive language for clause 3452.224-70, (Release of information under the Freedom of Information Act).

Reasons: The proposed changes are intended to protect personally identifiable information and to better inform the public of the Department's policy with respect to the Freedom of Information Act.

3425 Foreign Acquisition

FAR: FAR Part 25 (Foreign acquisition) implements the Buy American Act.

Current Regulations: The current EDAR designates the HCA as the approving official for determinations relating to the Buy American Act, and also implements a section of the FAR that no longer exists.

Proposed Regulations: We propose to remove 3425.2 (Balance of payments program) to eliminate outdated language.

Reasons: This proposed change is based on a FAR change that eliminated the need for this section of the EDAR.

Subchapter E—General Contracting Requirements

3427 Patents, Data, and Copyrights

FAR: FAR Part 27 (Patents, data, and copyrights) regulates patents, copyrights, rights in data, and foreign license and technical agreements under Federal contracts.

Current Regulations: The current EDAR includes in this part prescriptions for clauses on publication and publicity, advertising of awards, and paperwork reduction.

Proposed Regulations: We propose to add 3427.409 (Solicitation provisions and contract clauses) to consolidate the prescriptions for clauses 3452.227-70 (Publication and publicity) and 3452.227-71 (Advertising of awards).

Proposed 3427.409(c) would provide the prescriptive language for clause 3452.227-72 (Use and non-disclosure agreement) and proposed 3427.409(d) would provide the prescriptive language for clause 3452.227-73 (Limitations on the use or disclosure of Government-furnished information marked with restrictive legends).

As previously discussed, we are proposing to move the prescription for use of the clause at 3452.208-72 (Paperwork reduction) to 3408.871.

Reasons: The consolidation of the prescriptive language for clauses 3452.227-70 (Publication and publicity) and 3452.227-71 (Advertising of awards) is intended to bring clarity to this part and to make the EDAR structure consistent with the FAR structure. The proposed addition of the Use and non-disclosure agreement and the Limitations on the use or disclosure of Government-furnished information marked with restrictive legends clauses, 3452.227-72 and 3452.227-73, respectively, is intended to protect data from unauthorized disclosure. Moving the Paperwork reduction clause prescription from 3427.471 to 3408.871 (Paperwork reduction) would make the EDAR structure consistent with the FAR structure.

3432 Contract Financing

FAR: FAR Part 32 (Contract financing) regulates the types of financing the Government may make available to contractors, including advance payments.

Current Regulations: The current EDAR includes a prescription for a “Method of payment” clause in 3432.170 (Method of payment), includes designation of the HCA as the official authorized to authorize types of financing in 3432.4 (Advance Payments), and includes instructions to contractors in 3432.704 (Limitation of cost or funds). The current EDAR also includes a prescription for clause 3452.232-70 (Prohibition against the use of ED funds to influence legislation or appropriations) in 3432.770 (Prohibition against the use of ED funds to influence legislation or appropriations), and includes a prescription for an incremental funding provision in 3432.771 (Provision for incremental funding).

Proposed Regulations: We are proposing to remove 3432.170 (Method of payment) to eliminate outdated regulations. We are proposing to add 3432.705-2 (Clauses for limitation of cost or funds), which prescribes the use of clause 3452.232-70 (Limitation of cost or funds) and the provision in 3452.232-71 (Incremental funding). We are proposing to remove the current 3432.704 (Limitation of cost or funds), 3432.770 (Prohibition against the use of ED funds to influence legislation or appropriations), and 3432.771 (Provision for incremental funding).

Reasons: The proposed removal of the Method of payment clause is intended to eliminate outdated information about being paid by check or wire transfer. The Department no longer pays contractors by check or wire transfer.

The proposed addition of 3432.705-2 and removal of current 3432.704 and 3432.771 reorganizes and updates the information for incrementally funded contracts. The current EDAR section on Limitation of cost or funds (3432.704) also contains requirements for contractors to follow during performance of incrementally funded contracts. Requirements of this type should be communicated to contractors in contract clauses, not in the body of the regulation. Therefore, we are proposing to include these requirements in clause 3452.232-70 (Limitation of cost or funds) instead of in the current section of the EDAR (3432.704).

The proposed removal of 3432.770 would eliminate a redundant prohibition on using ED funds in lobbying. The restrictions in FAR Part 31 already prohibit contractors from spending Government funds on these activities.

3433 Protests, Disputes, and Appeals

FAR: FAR Part 33 (Protests, disputes, and appeals) sets forth the rules for handling these types of actions.

Current Regulations: The current EDAR includes information on protests, disputes, and appeals, and references Start Printed Page 51889outdated information on a board of contract appeals that no longer exists.

Proposed Regulations: We propose to remove unnecessary regulations currently in 3433.1 (Protests) and 3433.2 (Disputes and appeals). We propose to add a paragraph at 3433.103 to designate the HCA as the agency official identified in FAR 33.103(f)(3).

Reasons: The proposed changes would eliminate outdated and unnecessary information. The information contained in the current 3433.103 (Protests to the agency) is redundant with the information contained in FAR 33.103 (Protests to the agency). The current 3433.2 (Disputes and appeals) references a Board of Contract Appeals that no longer exists.

Subchapter F—Special Categories of Contracting

3437 Service Contracting

FAR: FAR Part 37 (Service contracting) regulates various types of service contracts and performance-based acquisition.

Current Regulations: The current EDAR contains 3437.270 (Consulting services reporting clause), which was eliminated by a class deviation in 1988. The EDAR also contains 3437.271 (Services of consultants clause), which prescribes the use of clause 3452.237-71 (Services of consultants) in all cost-reimbursement contracts and solicitations. This clause requires the contractor to obtain the contracting officer's written approval to use certain consultants under their contract.

Proposed Regulations: We propose adding 3437.170, which would require the inclusion of language set forth in clause 3452.237-71 (Observance of administrative closures) in all solicitations and contracts for services. We propose removing 3437.270 (Consulting services reporting clause).

We propose changing the number of 3437.271 (Services of consultants clause) to 3437.270, because that number would be available if the current 3437.270 is removed. We propose changing the prescription in 3437.270 (Services of consultants clause) to exclude FSA from the requirements of the clause.

Finally, we propose adding 3437.670 (Contract type) which would state that award-term contracting can be used in performance-based contracts and orders, if approved by the HCA.

Reasons: The proposed addition of the clause at 3452.237-71 (Observance of administrative closures) is intended to clarify the Department's policy on whether contractor work is required when the Government is closed.

The proposed change to the prescription for use of the clause at 3452.237-70 (Services of consultants) is intended to implement section 1018a(c).

The proposed new subsection on contract type is intended to authorize the use of award-term contracting. This change is necessary because although the current EDAR does not address this subject, award-term contracting is allowed under the FAR and used across the government. This change to the EDAR would clarify that the Department allows and intends for COs to use this procurement flexibility.

439 Acquisition of Information Technology

FAR: FAR Part 39 (Acquisition of information technology) regulates the acquisition of information technology.

Current Regulations: The current EDAR does not address this FAR part.

Proposed Regulations: We propose adding 3439.70 (Department requirements for the acquisition of information technology). In this subpart, we propose adding 3439.701 (Internet protocol version 6) to require the contracting officer to insert the clause at 3452.239-70 (Internet protocol version 6 (IPv6)), in all solicitations and resulting contracts for hardware and software. This clause requires contractors to comply with certain standard protocols when developing software or systems.

We are proposing to add 3439.702 (Department security requirements), to require the contracting officer to include the Notice to offerors of Department security requirements (3452.239-71) provision and the clause at 3452.239-72 (Department security requirements) when contractor employees will have access to Department-controlled facilities or space, or when the work (wherever located) involves the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information.

Finally, we are proposing the addition of 3439.703 (Federal desktop core configuration (FDCC) compatibility), which would require the contracting officer to include the clause at 3452.239-73 (Federal desktop core configuration (FDCC) compatibility) in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration. This clause requires software used on FDCC computers to be FDCC-compatible.

Reasons: These proposed changes are intended to implement multiple information technology initiatives and standards developed in the past several years by the information technology industry and adopted by the Government, including the Office of Management and Budget.

Subchapter F—Contract Management

3442 Contract Administration and Audit Services

FAR: FAR Part 42 (Contract administration and audit services) requires use of a contractor performance information system, contract monitoring, and governs other contract administration functions.

Current Regulations: The current EDAR contains an obsolete delegation of authority in 3442.705 (Final indirect cost rates), a section at 3442.7001 prescribing the use of clause 3452.242-72 (Withholding of contract payments), and sections in 3443.7002 on the Litigation and claims clause, 3442.7003 regarding the Delays clause, and 3442.71 on the Department's policy on accessibility to persons with disabilities.

Proposed Regulations: We are proposing to remove 3442.7 (Indirect cost rates) which had delegated authority to establish final indirect cost rates to the Chief of the Cost Determination Branch in Grants and Contracts Services.

We are also proposing to remove 3442.7001 (Withholding of contract payments clause) and to renumber 3442.7002 (Litigation and claims clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002. We propose no change to 3442.71, Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities.

Reasons: These proposed changes are intended to eliminate outdated information. The proposed removal of 3442.7 (Indirect cost rates) would remove the outdated delegation to establish final indirect cost rates. The FAR allows the contracting officer to make this determination (FAR 42.705).

We are proposing to remove 3442.7001 (Withholding of contract payments clause) because the language in this section allows the Department to withhold contract payments if any report required to be submitted by the contractor is overdue, or if the contractor fails to perform or deliver work or services as required by the contract. The Department's ability to withhold payment for non-performance is established in existing FAR clauses, based on the specific contract type and arrangement, and does not need to be repeated in the EDAR.

We are proposing to renumber 3442.7002 (Litigation and claims clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002, to use the number that would be available if the current Start Printed Page 518903442.7001 (Withholding of contract payments clause) is removed.

3443 Contract Modifications

FAR: FAR Part 43 (Contract modifications) provides guidance and requirements for changes to contracts.

Current Regulations: The current EDAR in 3443.106 (Contract clause) requires the inclusion of EDAR clause 3452.243-70 (Key personnel) in all cost-reimbursement contracts.

Proposed Regulations: We propose to renumber 3443.106 as 3443.107, to better align the EDAR numbering with the FAR. In addition, we propose a change to the language in newly renumbered 3443.107 to provide that the language in 3452.243-70 (Key personnel) would need to be included only in appropriate contracts.

Reasons: The current requirement to include the Key personnel clause in all cost-reimbursement contracts does not allow for contracting officer discretion in the use of this clause. The clause requires contractors to obtain contracting officer approval before changing the personnel assigned to the contract and designated in this clause as “key personnel.” In some contracts, this designation and approval process is important to the success of the contract and to the Department's ability to adequately monitor the contract. In some contracts, this requirement is unnecessarily cumbersome, as the designation and approval process is not important to the success of the contract or the Department's ability to adequately monitor the contract.

The new prescription would require the contracting officer to insert a clause substantially the same as the Key personnel clause “in all solicitations and resultant contracts in which it will be essential for the contracting officer to be notified that a change of designated personnel is to take place by the contractor.” This change in prescription would allow greater discretion in the use of this clause.

Subchapter H—Clauses and Forms

3452 Solicitation Provisions and Contract Clauses

FAR: FAR Part 52 (Solicitation provisions and contract clauses) is the part of the FAR containing all FAR provisions and clauses required or recommended for inclusion in solicitations and contracts, as prescribed in the preceding parts of the FAR.

Current Regulations: The current EDAR includes text for twenty-two provisions and clauses, all of which are prescribed in the preceding parts of the EDAR.

Proposed Regulations: We propose to add the Contracting Officer's Representative clause at 3452.201-70, to define the role and responsibility of that position.

The proposed Definitions—Department of Education clause at 3452.202-1 would be revised to remove the specific definitions in the current clause (“Secretary”, “Head of the Agency”, “contracting officer”, “Contracting Officer's Technical Representative”, “Department or ED”, and “subcontract”, and, instead, reference the FAR definitions at 2.101 and the EDAR definitions at 3402.101.

We are proposing renumbering the Paperwork Reduction Act clause from 3452.227-71 to 3452.208-72.

We are proposing a new Conflict of interest certification provision in 3452.209-70, which would require offerors to certify that they have identified actual or potential conflicts of interest.

We are proposing a new Conflict of interest clause at 3452.209-71, which would provide for potential criminal penalties for false certification regarding conflict of interest.

We are proposing to remove the Order of precedence clause at 3452.215-33, and instead use FAR clause 52.215-8 (Order of precedence—uniform contract format).

We are proposing to remove the Negotiated overhead rates—Fixed clause at 3452.216-71, which specifies procedures and policy for applying indirect rates to the contract. Applying indirect rates is adequately addressed in the FAR. We are proposing to add the Award-Term clause at 3452.216-71, which would provide information on the duration of an award-term contract, require an award-term plan, and provide guidance on making award determinations and on remedies available to contractors in award-term situations.

We are adding the Release of information under the Freedom of Information Act clause 3452.224-70, which would advise contractors of potential releases of information pursuant to the Freedom of Information Act.

The proposed Notice about research activities involving human subjects provision in 3452.224-71 and the proposed Research activities involving human subjects clause at 3452.224-72, would address the requirements found in 34 CFR part 97.

We are proposing to add the Use and non-disclosure agreement clause at 3452.227-72, which would protect contractor data from unauthorized disclosure by requiring the intended recipient to sign a use and non-disclosure agreement before receiving any proprietary data, technical data, or computer software delivered to the Government with restrictions on use, modification, reproduction, release, performance, display, or disclosure. We are proposing to remove the outdated Prohibition against the use of ED funds to influence legislation or appropriations clause at 3452.232-70.

The proposed Limitation of cost or funds clause at 3452.232-70 would provide the format and content of information to be provided by the contractor in cases of cost overruns.

We are proposing to revise the Incremental funding clause at 3452.232-71 by removing paragraph (b) of this clause, which had indicated that “the Limitation of Cost clause in FAR 52.232-20 shall supersede the Limitation of Funds clause in the event the contract becomes fully funded.” The Limitation of cost clause is not prescribed for inclusion in an incrementally funded contract, so this paragraph is unnecessary. We are proposing to remove the Method of payment clause at 3452.232-72, which indicates that payment under the contract will be made either by check or by wire transfer, because the Department no longer makes payments in this manner.

The proposed amendment to paragraph (b) of the Services of consultants clause at 3452.237-70 would raise the default daily rate for consultants where contracting officer approval is required to an amount greater than $800.

We are proposing to add the Observance of administrative closures clause at 3452.237-71 to clarify the Department's policy on whether contractor work is required when the Government is closed. We are proposing to add the Internet protocol version 6 (IPv6) clause at 3452.239-70 to incorporate the Department's requirement for compliance with this protocol.

We are proposing to add the Notice to offerors of Department security requirements provision in 3452.239-71 and the Department security requirements clause at 3452.239-72 to incorporate the Department's updated security requirements.

We are proposing to add the Federal desktop core configuration (FDCC) compatibility clause at 3452.239-73 clause to incorporate the Department's requirement for compatibility with the FDCC.

We are proposing to change the prescription reference for the Litigation and claims clause at 3452.242-70. Start Printed Page 51891

We are proposing to reword and change the prescription reference for the Notice to the government of delays clause at 3452.242-71.

We are proposing to leave unchanged the Accessibility of meetings, conferences, and seminars to persons with disabilities clause at 3452.242-73.

We are proposing to amend the Key personnel clause at 3452.243-70, to provide for a listing of the labor category and name of key personnel to be listed in the contract.

We are proposing to amend the Foreign travel clause at 3452.247-70 to add travel to Puerto Rico, the U.S. Virgin Islands, and other U.S. territories as instances of foreign travel.

Reasons: The proposed changes to this part of the EDAR are consistent with the changes to the prescriptive language in the preceding parts, and would update the provisions and clauses to more accurately reflect current regulations and policy.

Executive Order 12866

Under Executive Order 12866, the Secretary must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or local programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Secretary has determined that this regulatory action is not significant under section 3(f) of the Executive order.

Potential Costs and Benefits

This notice has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this proposed regulatory action.

The potential costs associated with this proposed regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the EDAR effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of this proposed regulatory action, we have determined that the benefits of the proposed regulatory action justify the costs.

We have determined, also, that this proposed regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

Clarity of the Regulations

Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

Are the requirements in the proposed regulations clearly stated?
Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations easier to understand?

To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the ADDRESSES section of this preamble.

Regulatory Flexibility Act Certification

Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq., as amended by the Small Business Regulatory Flexibility Act of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions), unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant impact on a substantial number of small entities. Pursuant to the Regulatory Flexibility Act, the Secretary certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.

The rule would update the EDAR; it would not directly regulate any small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

Paperwork Reduction Act of 1995

These proposed regulations do not contain any information collection requirements.

Intergovernmental Review

The EDAR is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Assessment of Educational Impact

In accordance with section 441 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.

Electronic Access to This Document

You can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/fedregister. To use PDF you must have Adobe Acrobat Reader, which is available free at this site.

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects in 48 CFR Chapter 34

Government procurement

Dated: August 6, 2010.

Arne Duncan,

Secretary of Education.

For the reasons discussed in the preamble, the Secretary proposes to amend title 48 of the Code of Federal Regulations by revising chapter 34 to read as follows: Start Printed Page 51892

TITLE 48—FEDERAL ACQUISITION REGULATIONS SYSTEM

CHAPTER 34—DEPARTMENT OF EDUCATION ACQUISITION REGULATION

PARTS 3400 to 3499

SUBCHAPTER A—GENERAL

3401: ED Acquisition regulation system
3402: Definitions of words and terms
3403: Improper business practices and personal conflicts of interest

SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING

3405: Publicizing contract actions
3406: Competition requirements
3408: Required sources of supplies and services
3409: Contractor qualifications
3412: Acquisition of commercial items

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES

3413: Simplified acquisition procedures
3414: Sealed bidding
3415: Contracting by negotiation
3416: Types of contracts
3417: Special contracting methods

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

3419: Small business programs
3422: Application of labor laws to government acquisitions
3424: Protection of privacy and freedom of information
3425: Foreign acquisition

SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS

3427: Patents, data, and copyrights
3428: Bonds and insurance
3432: Contract financing
3433: Protests, disputes, and appeals

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

3437: Service contracting
3439: Acquisition of information technology

SUBCHAPTER G—CONTRACT MANAGEMENT

3442: Contract administration and audit services
3443: Contract modifications
3445: Government property
3447: Transportation

SUBCHAPTER H—CLAUSES AND FORMS

3452: Solicitation provisions and contract clauses

SUBCHAPTER A—GENERAL

PART 3401—ED ACQUISITION REGULATION SYSTEM

3401.000: Scope of part.
3401.104: Applicability.
3401.105: Issuance.
3401.105-2: Arrangement of regulations.
3401.105-3: Copies.
3401.301: Policy.
3401.303: Publication and codification.
3401.304: Agency control and compliance procedures.
3401.401: Definition.
3401.403: Individual deviations.
3401.404: Class deviations.
3401.501: Solicitation of agency and public views.
3401.501-2: Opportunity for public comments.
3401.601: General.
3401.602-3: Ratification of unauthorized commitments.
3401.670: Nomination and appointment of contracting officer's representatives (CORs).
3401.670-1: General.
3401.670-2: Appointment.
3401.670-3: Contract clause.

FAR	Is implemented as	Is augmented as
15	3415	3415.70.
15.1	3415.1	3415.170.
15.101	3415.101	3415.101-70.
15.101-1	3415.101-1	3415.101-1-70.
15.101-1(b)	3415.101-1(b)	3415.101-1(b)(70).
15.101-1(b)(1)	3415.101-1(b)(1)	3415.101-1(b)(1)(70).

PART 3402—DEFINITIONS OF WORDS AND TERMS

3402.101: Definitions.
3402.101-70: Abbreviations and acronyms.
3402.201: Contract clause.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3402.1—Definitions

3402.101

Definitions.

As used in this chapter—

Chief Acquisition Officer or CAO means the official responsible for monitoring the agency's acquisition activities, evaluating them based on applicable performance measurements, increasing the use of full and open competition in agency acquisitions, making acquisition decisions consistent with applicable laws, and establishing clear lines of authority, accountability, and responsibility for acquisition decision-making and developing and maintaining an acquisition career management program.

Chief of the Contracting Office means an official serving in the contracting activity (CAM or FSA Acquisitions) as the manager of a group that awards and administers contracts for a principal office of the Department. See also definition of Head of the Contracting Activity or HCA below.

Contracting Officer's Representative or COR means the person representing the Federal government for the purpose of technical monitoring of contract performance. The COR is not authorized to issue any instructions or directions that effect any increases or decreases in the scope of work or that would result in the increase or decrease of the cost or price of a contract or a change in the delivery dates or performance period of a contract.

Department or ED means the United States Department of Education.

Head of the Contracting Activity or HCA means those officials within the Department who have responsibility for and manage an acquisition organization and usually hold unlimited procurement authority. The Director, Federal Student Aid Acquisitions, is the HCA for FSA. The Director, Contracts and Acquisitions Management (CAM), is the HCA for all other Departmental program offices and all boards, commissions, and councils under the management control of the Department.

Performance-Based Organization or PBO is the office within the Department that is mandated by Public Law 105-244 to carry out Federal student assistance or aid programs and report to Congress on an annual basis. It may also be referred to as “Federal Student Aid.”

Senior Procurement Executive or SPE means the single agency official appointed as such by the head of the agency and delegated broad responsibility for acquisition functions, including issuing agency acquisition policy and reporting on acquisitions agency-wide. The SPE also acts as the official one level above the contracting officer when the HCA is acting as a contracting officer.

3402.101-70

Abbreviations and acronyms.

CAO—Chief Acquisition Officer.

CO—Contracting Officer.

COR—Contracting Officer's Representative.

FSA—Federal Student Aid.

HCA—Head of the Contracting Activity.

IPv6—Internet Protocol version 6.

OMB—Office of Management and Budget.

OSDBU—Office of Small and Disadvantaged Business Utilization.

PBO—Performance-Based Organization (Federal Student Aid).

RFP—Request for Proposal.

SBA—Small Business Administration.

SPE—Senior Procurement Executive.

Subpart 3402.2—Definitions Clause

3402.201

Contract clause.

The Contracting Officer must insert the clause at 3452.202-1 (Definitions—Department of Education) in all solicitations and contracts in which the clause at FAR 52.202-1 is required.

PART 3403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

3403.101: Standards of conduct.
3403.101-3: Agency regulations.
3403.203: Reporting suspected violations of the gratuities clause.
3403.301: General.
3403.409: Misrepresentation or violations of the covenant against contingent fees.
3403.602: Exceptions.

Authority: 5 U.S.C. 301.

Subpart 3403.1—Safeguards

3403.101

Standards of conduct.

3403.101-3

Agency regulations.

The Department's regulations on standards of conduct and conflicts of interest are in 34 CFR part 73, Standards of Conduct.

Subpart 3403.2—Contractor Gratuities to Government Personnel

3403.203

Reporting suspected violations of the Gratuities clause.

(a) Suspected violations of the Gratuities clause at FAR 52.203-3 must be reported to the HCA in writing detailing the circumstances.

(b) The HCA evaluates the report with the assistance of the Designated Agency Ethics Officer. If the HCA determines that a violation may have occurred, the HCA refers the report to the SPE for disposition.

Subpart 3403.3—Reports of Suspected Antitrust Violations

3403.301

General.

Any Departmental personnel who have evidence of a suspected antitrust violation in an acquisition must—

(1) Report that evidence through the HCA to the Office of the General Counsel for referral to the Attorney General; and

(2) Provide a copy of that evidence to the SPE.

Subpart 3403.4—Contingent Fees

3403.409

Misrepresentation or violations of the covenant against contingent fees.

Any Departmental personnel who suspect or have evidence of attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or other violation of the Covenant Against Contingent Fees, must report the matter promptly in accordance with the procedures in 3403.203.

Subpart 3403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them

3403.602

Exceptions.

Exceptions under FAR 3.601 must be approved by the HCA.

SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING PART 3405—PUBLICIZING CONTRACT ACTIONS

3405.202: Exceptions.
3405.203: Publicizing and response time.
3405.205: Special situations.
3405.207: Preparation and transmittal of synopses.
3405.270: Notices to perform market surveys.
3405.502: Authority.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3405.2—Synopses of Proposed Contract Actions

3405.202

Exceptions.

(a)(15) FSA—Issuance of a synopsis is not required when the firm to be solicited has previously provided a module for the system under a contract that contained cost, schedule, and performance goals and the contractor met those goals.

3405.203

Publicizing and response time.

(c) FSA—Notwithstanding other provisions of the FAR, a bid or proposal due date of less than 30 days is permitted after issuance of a synopsis for acquisitions for noncommercial items. However, if time permits, a bid or proposal due date that affords potential offerors reasonable time to respond and fosters quality submissions should be established.

3405.205

Special situations.

(g) FSA—Module of a previously awarded system. Federal Student Aid must satisfy the publication requirements for sole source and competitive awards for a module of a previously awarded system by publishing a notice of intent on the governmentwide point of entry, not less than 30 days before issuing a solicitation. This notice is not required if a contractor who is to be solicited to submit an offer previously provided a module for the system under a contract that contained cost, schedule, and performance goals, and the contractor met those goals.

3405.207

Preparation and transmittal of synopses.

(c) FSA—In Phase One of a Two-Phase Source Selection as described in 3415.302-70, the contracting officer must publish a notice in accordance with FAR 5.2, except that the notice must include only the following:

(1) Notification that the procurement will be conducted using the specific procedures included in 3415.302-70.

(2) A general notice of the scope or purpose of the procurement that provides sufficient information for sources to make informed business decisions regarding whether to participate in the procurement.

(3) A description of the basis on which potential sources are to be selected to submit offers in the second phase.

(4) A description of the information that is to be required to be submitted if the request for information is made separate from the notice.

(5) Any other information that the contracting officer deems is appropriate.

(h) FSA—When modular contracting authority is being utilized, the notice must invite comments and support if it is believed that modular contracting is not suited for the requirement being procured.

3405.270

Notices to perform market surveys.

(a) If a sole source contract is anticipated, the issuance of a notice of a proposed contract action that is detailed enough to permit the submission of meaningful responses and the subsequent evaluation of the responses by the Federal government constitutes an acceptable market survey.

(b) The notice must include—

(1) A clear statement of the supplies or services to be procured;

(2) Any capabilities or experience required of a contractor and any other factor relevant to those requirements;

(3) A statement that all responsible sources submitting a proposal, bid, or quotation must be considered;

(4) Name, business address, and phone number of the Contracting Officer; and

(5) Justification for a sole source and the identity of that source.

Subpart 3405.5—Paid Advertisements

3405.502

Authority.

Authority to approve publication of paid advertisement in newspapers is delegated to the HCA.

PART 3406—COMPETITION REQUIREMENTS

3406.001: Applicability.
3406.302-5: Authorized or required by statute.
3406.501: Requirement.

Authority: 5 U.S.C. 301; 41 U.S.C. 418(a) and (b); and 20 U.S.C. 1018a.

3406.001

Applicability.

(b) FSA—This part does not apply to proposed contracts and contracts awarded based on other than full and open competition when the conditions for successive systems modules set forth in EDAR 3417.70, Modular Contracting, are utilized.

Subpart 3406.3—Other Than Full and Open Competition

3406.302-5

Authorized or required by statute.

(a) Authority.

(1) Citations: 20 U.S.C. 1018a.

(2) Noncompetitive awards of successive modules for systems are permitted when the conditions set forth in EDAR 3417.70 are met.

Subpart 3406.5—Competition Advocates

3406.501

Requirement.

The Competition Advocate for the Department is the Deputy Director, Contracts and Acquisitions Management.

PART 3408—REQUIRED SOURCES OF SUPPLIES AND SERVICES

3408.870: Printing clause.
3408.871: Paperwork reduction.

Authority: 5 U.S.C. 301, unless otherwise noted.

Subpart 3408.8—Acquisition of Printing and Related Supplies

(44 U.S.C. 501)

3408.870

Printing clause.

The contracting officer must insert the clause at 3452.208-71 (Printing) in all solicitations and contracts other than purchase orders.

3408.871

Paperwork reduction.

The Contracting Officer must insert the clause at 3452.208-72 (Paperwork Reduction Act) in all solicitations and contracts in which the contractor will develop forms or documents for public use.

PART 3409—CONTRACTOR QUALIFICATIONS

3409.400: Scope of subpart.
3409.401: Applicability.
3409.403: Definitions.
3409.406: Debarment.
3409.406-3: Procedures.
3409.407: Suspension.
3409.407-3: Procedures.

3409.502: Applicability.
3409.503: Waiver.
3409.506: Procedures.
3409.507: Solicitation provision and contract clause.
3409.507-1: Solicitation provision.
3409.507-2: Contract clause.
3409.570: Certification at or below the simplified acquisition threshold.

Authority: 5 U.S.C. 301.

Subpart 3409.4—Debarment, Suspension, and Ineligibility

3409.400

Scope of subpart.

This subpart implements FAR subpart 9.4 by detailing policies and procedures governing the debarment and suspension of organizations and individuals from participating in ED contracts and subcontracts.

3409.401

Applicability.

This subpart applies to all procurement debarment and suspension actions initiated by ED. This subpart does not apply to nonprocurement debarment and suspension.

3409.403

Definitions.

The SPE is designated as the “debarring official” and “suspending official” as defined in FAR 9.403 and is designated as the agency official authorized to make the decisions required in FAR 9.406 and FAR 9.407.

3409.406

Debarment.

3409.406-3

Procedures.

(b) Decision making process.

(1) Contractors proposed for debarment may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment. The contractor must submit additional information within 30 days of receipt of the notice of proposal to debar, as described in FAR 9.406-3(c).

(2) In actions not based upon a conviction or civil judgment, if the contractor's submission in opposition raises a genuine dispute over facts material to the proposed debarment, the contractor may request a fact-finding conference. If the Debarring Official determines that there is a genuine dispute of material fact, the Debarring Official will conduct fact-finding and base the decision in accordance with FAR 9.406-3(b)(2) and (d)-(f).

3409.407

Suspension.

3409.407-3

Procedures.

(b) Decision making process.

(1) Contractors suspended in accordance with FAR 9.407 may submit, in person, in writing, or through a representative, information and argument in opposition to the suspension. The contractor must submit this information and argument within 30 days of receipt of the notice of suspension, as described in FAR 9.407-3(c).

(2) In actions not based upon an indictment, if the contractor's submission in opposition raises a genuine dispute over facts material to the suspension an dif no determination has been made, on the basis of Department of Justice advice, that substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced, the contractor may request a fact-finding conference. The Suspending Official will conduct fact-finding and base the decision in accordance with FAR 9.407-3(b)(2) and (d)-(e).

Subpart 3409.5—Organizational and Consultant Conflicts of Interest

3409.502

Applicability.

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

3409.503

Waiver.

The HCA is designated as the official who may waive any general rule or procedure of FAR Subpart 9.5 or of this subpart.

3409.506

Procedures.

(a) If the effects of a potential or actual conflict of interest cannot be avoided, neutralized, or mitigated before award, the prospective contractor is not eligible for that award. If a potential or actual conflict of interest is identified after award and the effects cannot be avoided, neutralized, or mitigated, ED will terminate the contract unless the HCA deems continued performance to be in the best interest of the Federal government.

(b) The HCA is designated as the official to conduct reviews and make final decisions under FAR 9.506(b) and (c).

3409.507

Solicitation provision and contract clause.

3409.507-1

Solicitation provision.

The contracting officer must insert the provision in 3452.209-70 (Conflict of interest certification) in all solicitations for services above the simplified acquisition threshold.

3409.507-2

Contract clause.

The contracting officer must insert the clause at 3452.209-71 (Conflict of interest) in all contracts for services above the simplified acquisition threshold. The clause is applicable to each order for services over the simplified acquisition threshold under task order contracts.

3409.570

Certification at or below the simplified acquisition threshold.

By accepting any contract, including orders against any Schedule or Government-wide Acquisition Contract (GWAC), with the Department at or below the simplified acquisition threshold:

(a) The contractor warrants that, to the best of the contractor's knowledge and belief, there are no relevant facts or circumstances that would give rise to an organizational conflict of interest, as defined in FAR Subpart 2.1, or that the Contractor has disclosed all such relevant information.

(b) The contractor agrees that if an actual or potential organizational conflict of interest is discovered after award, the contractor will make an immediate full disclosure in writing to the contracting officer. This disclosure must include a description of actions that the contractor has taken or proposes to take, after consultation with the contracting officer, to avoid, mitigate, or neutralize the actual or potential conflict.

(1) The Government may terminate this contract for convenience, in whole or in part, if such termination is necessary to avoid an organizational conflict of interest.

(2) The Government may terminate this contract for default or pursue other remedies permitted by law or this contract if the contractor was aware or should have been aware of a potential organizational conflict of interest prior to award, or discovers or should have discovered an actual or potential conflict after award, and does not disclose, or misrepresents, relevant information to the contracting officer regarding the conflict.

(d) The contractor further agrees to insert provisions that substantially conform to the language of this section, including this paragraph (d), in any subcontract or consultant agreement hereunder.

PART 3412—ACQUISITION OF COMMERCIAL ITEMS

Subpart 3412.2—Special Requirements for the Acquisition of Commercial Items

Sec.
3412.203: Procedures for solicitation, evaluation, and award.
3412.302: Tailoring of provisions and clauses for the acquisition of commercial items.

Start Printed Page 51897 Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3412.2—Special Requirements for the Acquisition of Commercial Items

3412.203

Procedures for solicitation, evaluation, and award.

As specified in 3413.003, simplified acquisition procedures for commercial items may be used without regard to any dollar or timeframe limitations described in FAR 13.5 when acquired by the FSA and used for its purposes.

Subpart 3412.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items

3412.302

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 must be incorporated into the contract file.

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES

PART 3413—SIMPLIFIED ACQUISITION PROCEDURES

3413.000: Scope of part.
3413.003: Policy.
3413.303: Blanket purchase agreements (BPAs).
3413.303-5: Purchases under BPAs.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

3413.000

Scope of part.

3413.003

Policy.

(c)(1)(iii) FSA—FSA may use simplified acquisition procedures for commercial items without regard to any dollar or timeframe limitations described in FAR 13.5.

(iv) FSA—FSA may use simplified acquisition procedures for non-commercial items up to $1,000,000 when the acquisition is set aside for small businesses, pursuant to EDAR 3419.502.

Subpart 3413.3—Simplified Acquisition Methods

3413.303

Blanket purchase agreements (BPAs).

3413.303-5

Purchases under BPAs.

(b) Individual purchases under blanket purchase agreements for commercial items may exceed the simplified acquisition threshold but shall not exceed the threshold for the test program for certain commercial items, in FAR 13.500(a).

PART 3414—SEALED BIDDING

3414.407: Mistakes in bids.
3414.407-3: Other mistakes disclosed before award.

Authority: 5 U.S.C. 301.

Subpart 3414.4—Opening of Bids and Award of Contract

3414.407

Mistakes in bids.

3414.407-3

Other mistakes disclosed before award.

Authority is delegated to the HCA to make determinations under FAR 14.407-3(a)-(d).

PART 3415—CONTRACTING BY NEGOTIATION

3415.209: Solicitation provisions and contract clauses.
3415.302: Source selection objective.
3415.302-70: Two-phase source selection.
3415.605: Content of unsolicited proposals.
3415.606: Agency procedures.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3415.2—Solicitation and Receipt of Proposals and Information

3415.209

Solicitation provisions and contract clauses.

(a) The Freedom of Information Act (FOIA), 5 U.S.C. 552, may require ED to release data contained in an offeror's proposal even if the offeror has identified the data as restricted in accordance with the provision in FAR 52.215-1(e). The solicitation provision in 3452.215-70 (Release of restricted data) informs offerors that ED is required to consider release of restricted data under FOIA and Executive Order 12600.

(b) The contracting officer must insert the provision in 3452.215-70, in all solicitations that include a reference to FAR 52.215-1 (Instructions to Offerors—Competitive Acquisitions).

Subpart 3415.3—Source Selection

3415.302

Source selection objective.

3415.302-70

Two-phase source selection.

(a) FSA—May utilize a two-phase process to solicit offers and select a source for award. The contracting officer can choose to use this optional method of solicitation when deemed beneficial to the FSA in meeting its needs as a PBO.

(b) Phase One.

(1) The contracting officer must publish a notice in accordance with FAR 5.2, except that the notice must include limited information as specified in EDAR 3405.207.

(2) Information Submitted by Offerors. Each offeror must submit basic information such as the offeror's qualifications, the proposed conceptual approach, costs likely to be associated with the approach, and past performance data, together with any additional information requested by the contracting officer.

(3) Selection for participating in second phase. The contracting officer must select the offerors that are eligible to participate in the second phase of the process. The contracting officer must limit the number of the selected offerors to the number of sources that the contracting officer determines is appropriate and in the best interests of the Federal government.

(1) The contracting officer must conduct the second phase of the source selection consistent with FAR 15.2 and 15.3, except as provided by EDAR 3405.207.

(2) Only sources selected in the first phase will be eligible to participate in the second phase.

Subpart 3415.6—Unsolicited Proposals

3415.605

Content of unsolicited proposals.

(d) Each unsolicited proposal must contain the following certification:

Unsolicited Proposal Certification By Offeror

This is to certify, to the best of my knowledge and belief, that—

a. This proposal has not been prepared under Federal government supervision;

b. The methods and approaches stated in the proposal were developed by this offeror;

c. Any contact with employees of the Department of Education has been within the limits of appropriate advance guidance set forth in FAR 15.604; andStart Printed Page 51898

d. No prior commitments were received from departmental employees regarding acceptance of this proposal.

Date:

Organization:

Name:

Title:

(This certification must be signed by a responsible person authorized to enter into contracts on behalf of the organization.)

3415.606

Agency procedures.

(b)(1) The HCA or designee is the contact point to coordinate the receipt, control, and handling of unsolicited proposals.

(2) Offerors must direct unsolicited proposals to the HCA.

PART 3416—TYPES OF CONTRACTS

3416.303: Cost-sharing contracts.
3416.307: Contract clauses.
3416.402: Application of predetermined, formula-type incentives.
3416.402-2: Performance incentives.
3416.470: Award-term contracting.
3416.603: Letter contracts.
3416.603-3: Limitations.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3416.3—Cost-Reimbursement Contracts

3416.303

Cost-sharing contracts.

(b) Application. Costs that are not reimbursed under a cost-sharing contract may not be charged to the Federal government under any other grant, contract, cooperative agreement, or other arrangement.

3416.307

Contract clauses.

(a) If the clause in FAR 52.216-7 (Allowable Cost and Payment) is used in a contract with a hospital, the contracting officer must modify the clause by deleting the words “Subpart 31.2 of the Federal Acquisition Regulation (FAR)” from paragraph (a) and substituting “34 CFR part 74, Appendix E.”

(b) The contracting officer must insert the clause at 3452.216-70 (Additional cost principles) in all solicitations of and resultant cost-reimbursement contracts with nonprofit organizations other than educational institutions, hospitals, or organizations listed in Attachment C to Office of Management and Budget Circular A-122.

Subpart 3416.4—Incentive Contracts

3416.402

Application of predetermined, formula-type incentives.

3416.402-2

Performance incentives.

(b) Award-term contracting may be used for performance-based contracts or task orders. See EDAR 3416.470 for the definition of award-term contracting and implementation guidelines.

3416.470

Award-term contracting.

(a) Definition. Award-term contracting is a method, based upon a pre-determined plan in the contract, to extend the contract term for superior performance and to reduce the contract term for substandard or poor performance.

(b) Applicability. A Contracting Officer may authorize use of an award-term incentive contract for acquisitions where the quality of contractor performance is of a critical or highly important nature. The basic contract term may be extended on the basis of the Federal government's determination of the excellence of the contractor's performance. Additional periods of performance, which are referred to herein as “award terms,” are available for possible award to the contractor. As award term(s) are awarded, each additional period of performance will immediately follow the period of performance for which the award term was granted. The contract may end at the base period of performance if the Federal government determines that the contractor's performance does not reflect a level of performance as described in the award-term plan. Award-term periods may only be earned based on the evaluated quality of the performance of the contractor. Meeting the terms of the contract is not justification to award an award-term period. The use of an award-term plan does not exempt the contract from the requirements of FAR 17.207, with respect to performing due diligence prior to extending a contract term.

(c) Approvals. The Contracting Officer must justify the use of an award-term incentive contract in writing. The award-term plan approving official will be appointed by the HCA.

(d) Disputes. The Federal government unilaterally makes all decisions regarding award-term evaluations, points, methodology used to calculate points, and the degree of the contractor's success. These decisions are not subject to the Disputes clause.

(e) Award-term limitations.

(1) Award periods may be earned during the base period of performance and each option period, except the last option period. Award-term periods may not be earned during the final option year of any contract.

(2) Award-term periods may not exceed twelve months.

(3) The potential award-term periods will be priced, evaluated, and considered in the initial contract selection process.

(f) Implementation of extensions or reduced contract terms.

(1) An award term is contingent upon a continuing need for the supplies or services and the availability of funds. Award terms may be cancelled prior to the start of the period of performance at no cost to the Federal government if there is not a continued need or available funding.

(2) The extension or reduction of the contract term is affected by a unilateral contract modification.

(3) Award-term periods occur after the period for which the award term was granted. Award-term periods effectively move option periods to later contract performance periods.

(4) Contractors have the right to decline the award of an award-term period. A contractor loses its ability to earn additional award terms if an earned Award-Term Period is declined.

(5) Changes to the contract award-term plan must be mutually agreed upon.

(g) Clause. Insert a clause substantially the same as the clause at 3452.216-71 (Award-term) in all solicitations and resulting contracts where an award-term incentive contract is anticipated.

Subpart 3416.6—Time and Materials, Labor-Hour, and Letter Contracts

3416.603

Letter contracts.

3416.603-3

Limitations.

If the HCA is to sign a letter contract as the contracting officer, the SPE signs the written determination under FAR 16.603-3.

PART 3417—SPECIAL CONTRACTING METHODS

3417.204: Contracts.
3417.207: Exercise of options.
3417.502: General.
3417.70: Modular contracting.

Start Printed Page 51899 Authority: 31 U.S.C. 1535 and 20 U.S.C. 1018a.

Subpart 3417.2—Options

3417.204

Contracts.

(e) Except as otherwise provided by law, contract periods that exceed the five-year limitation specified in FAR 17.204(e) must be approved by—

(1) The HCA for individual contracts; or

(2) The SPE for classes of contracts.

3417.207

Exercise of options.

If a contract provision allows an option to be exercised within a specified timeframe after funds become available, it must also specify that the date on which funds “become available” is the actual date funds become available to the contracting officer for obligation.

(f)(2) The Federal government may accept price reductions offered by contractors at any time during contract performance. Acceptance of price reductions offered by contractors will not be considered renegotiations as identified in this subpart if they were not initiated or requested by the Federal government.

Subpart 3417.5—Interagency Acquisitions Under the Economy Act

3417.502

General.

No other Federal department or agency may purchase property or services under contracts established or administered by FSA unless the purchase is approved by SPE for the requesting Agency.

Subpart 3417.7—Modular Contracting

3417.70

Modular contracting.

(a) FSA—FSA may incrementally conduct successive procurements of modules of overall systems. Each module must be useful in its own right or useful in combination with the earlier procurement modules. Successive modules may be procured on a sole source basis under the following circumstances:

(1) Competitive procedures are used for awarding the contract for the first system module; and

(2) The solicitation for the first module included the following:

(i) A general description of the entire system that was sufficient to provide potential offerors with reasonable notice of the general scope of future modules;

(ii) Other sufficient information to enable offerors to make informed business decisions to submit offers for the first module; and

(iii) A statement that procedures, i.e., the sole source awarding of follow-on modules, could be used for the subsequent awards.

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

PART 3419—SMALL BUSINESS PROGRAMS

3419.201: General policy.
3419.201-70: Office of Small and Disadvantaged Business Utilization (OSDBU).
3419.502: Setting aside acquisitions.
3419.502-4: Methods of conducting set-asides.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3419.2—Policies

3419.201

General policy.

3419.201-70

Office of Small and Disadvantaged Business Utilization.

The Office of Small and Disadvantaged Business Utilization (OSDBU), Office of the Deputy Secretary, is responsible for facilitating the implementation of the Small Business Act, as described in FAR 19.201. The OSDBU develops rules, policy, procedures, and guidelines for the effective administration of ED's small business program.

Subpart 3419.5—Set-Asides for Small Business

3419.502

Setting aside acquisitions.

3419.502-4

Methods of conducting set-asides.

(a) Simplified acquisition procedures as described in FAR Part 13 for the procurement of noncommercial services for FSA requirements may be used under the following circumstances:

(1) The procurement does not exceed $1,000,000;

(2) The procurement is conducted as a small business set-aside pursuant to section 15(a) of the Small Business Act;

(3) The price charged for supplies associated with the services are expected to be less than 20 percent of the total contract price;

(4) The procurement is competitive; and

(5) The procurement is not for construction.

PART 3422—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

3422.1002: Statutory requirements.
3422.1002-1: General.
3424.103: Procedures.
3424.170: Protection of human subjects.
3424.201: Authority.
3424.203: Policy.

Authority: 5 U.S.C. 301.

Subpart 3424.1—Protection of Individual Privacy

3424.103

Procedures.

(a) If the Privacy Act of 1974 (Privacy Act) applies to a contract, the contracting officer must specify in the contract the disposition to be made of the system or systems of records upon completion of performance. For example, the contract may require the contractor to completely destroy the records, to remove personal identifiers, to turn the records over to ED, or to keep the records but take certain measures to keep the records confidential and protect the individual's privacy.

(b) If a notice of the system of records has not been published in the Federal Register, the contracting officer may proceed with the acquisition but must not award the contract until the notice is published, unless the contracting officer determines, in writing, that portions of the contract may proceed without maintaining information subject Start Printed Page 51900to the Privacy Act. In this case, the contracting officer may—

(1) Award the contract, authorizing performance only of those portions not subject to the Privacy Act; and

(2) After the notice is published and effective, authorize performance of the remainder of the contract.

3424.170

Protection of human subjects.

In this subsection, “Research” means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. (34 CFR 97.102(d)) Research is considered to involve human subjects when a researcher obtains information about a living individual through intervention or interaction with the individual or obtains personally identifiable private information about an individual. Some categories of research are exempt under the regulations, and the exemptions are in 34 CFR part 97.

(a) Insert the provision in 3452.224-71 (Notice about research activities involving human subjects) in any solicitation where a resultant contract will include, or is likely to include, research activities involving human subjects covered under 34 CFR part 97.

(b) Insert the clause at 3452.224-72 (Research activities involving human subjects) in any solicitation that includes the provision in 3452.224-71 (Notice about research activities involving human subjects) and in any resultant contract.

Subpart 3424.2—Freedom of Information Act

3424.201

Authority.

The Department's regulations implementing the Freedom of Information Act, 5 U.S.C. 552, are in 34 CFR part 5.

3424.203

Policy.

(a) [Reserved]

(b) The Department's policy is to release all information incorporated into a contract and documents that result from the performance of a contract to the public under the Freedom of Information Act. The release or withholding of documents requested will be made on a case-by-case basis. Contracting officers must advise offerors and prospective contractors of the possibility that their submissions may be released under the Freedom of Information Act, not withstanding any restrictions that are included at the time of proposal submission. A clause substantially the same as the clause at 3452.224-70 (Release of information under the Freedom of Information Act) must be included in all solicitations and contracts.

PART 3425—FOREIGN ACQUISITION

3425.102: Exceptions.

Authority: 5 U.S.C. 301.

Subpart 3425.1—Buy American Act—Supplies

3425.102

Exceptions.

The HCA approves determinations under FAR 25.103(b)(2)(i).

Subchapter E—General Contracting Requirements

PART 3427—PATENTS, DATA, AND COPYRIGHTS

3427.409: Solicitation provisions and contract clauses.

Authority: 5 U.S.C. 301.

Subpart 3427.4—Rights in Data and Copyrights

3427.409

Solicitation provisions and contract clauses.

(a) The contracting officer must insert the clause at 3452.227-70 (Publication and publicity) in all solicitations and contracts other than purchase orders.

(b) The contracting officer must insert the clause at 3452.227-71 (Advertising of awards) in all solicitations and contracts other than purchase orders.

(c) The contracting officer must insert the clause at 3452.227-72 (Use and non-disclosure agreement) in all contracts over the simplified acquisition threshold, and in contracts under the simplified acquisition threshold, as appropriate.

(d) The contracting officer must insert the clause at 3452.227-73 (Limitations on the use or disclosure of Government-furnished information marked with restrictive legends) in all contracts of third party vendors who require access to government-furnished information including other contractors' technical data, proprietary information, or software.

PART 3428—BONDS AND INSURANCE

3428.311: Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.
3428.311-2: Contract clause.

Authority: 5 U.S.C. 301.

Subpart 3428.3—Insurance

3428.311

Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts.

3428.311-2

Contract clause.

The contracting officer must insert the clause at 3452.228-70 (Required insurance) in all solicitations and resultant cost-reimbursement contracts.

PART 3432—CONTRACT FINANCING

Subpart 3432.4—Advance Payments for Non-Commercial Items

3432.402: General.
3432.407: Interest.

Subpart 3432.7—Contract Funding

3432.705: Contract clauses.
3432.705-2: Clauses for limitation of cost or funds.

Authority: 5 U.S.C. 301.

Subpart 3432.4—Advance Payments for Non-Commercial Items

3432.402

General.

The HCA is delegated the authority to make determinations under FAR 32.402(c)(1)(iii). This authority may not be redelegated.

3432.407

Interest.

The HCA is designated as the official who may authorize advance payments without interest under FAR 32.407(d).

Subpart 3432.7—Contract Funding

3432.705

Contract clauses.

3432.705-2

Clauses for limitation of cost or funds.

(a) The contracting officer must insert the clause at 3452.232-70 (Limitation of cost or funds) in all solicitations and contracts where a Limitation of cost or Limitation of funds clause is utilized.

(b) The contracting officer must insert the provision in 3452.232-71 (Incremental funding) in a solicitation if a cost-reimbursement contract using incremental funding is contemplated.

PART 3433—PROTESTS, DISPUTES, AND APPEALS

3433.103: Protests to the agency.

Authority: 5 U.S.C. 301.

Subpart 3433.1—Protests

3433.103

Protests to the agency.

(f)(3) The contracting officer's HCA must approve the justification or determination to continue performance. Start Printed Page 51901The criteria in FAR 33.103(f)(3) must be followed in making the determination to award a contract before resolution of a protest.

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

PART 3437—SERVICE CONTRACTING

3437.102: Policy.
3437.170: Observance of administrative closures
3437.270: Services of consultants clauses.
3437.670: Contract type.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3437.1—Service Contracts—General

3437.102

Policy.

If a service contract requires one or more end items of supply, FAR Subpart 37.1 and this subpart apply only to the required services.

3437.170

Observance of administrative closures.

The contracting officer must insert the clause at 3452.237-71 (Observance of administrative closures) in all solicitations and contracts for services.

Subpart 3437.2—Advisory and Assistance Services

3437.270

Services of consultants clause.

The contracting officer must insert the clause at 3452.237-70 (Services of consultants) in all solicitations and resultant cost-reimbursement contracts that do not provide services to FSA.

Subpart 3437.6—Performance-Based Acquisition

3437.670

Contract type.

Award-term contracting may be used for performance-based contracts and task orders that provide opportunities for significant improvements and benefits to the Department. Use of award-term contracting must be approved in advance by the HCA.

PART 3439—ACQUISITION OF INFORMATION TECHNOLOGY

3439.701: Internet Protocol version 6.
3439.702: Department security requirements.
3439.703: Federal desktop core configuration (FDCC) compatibility.

Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.

Subpart 3439.70—Department Requirements for Acquisition of Information Technology

3439.701

Internet Protocol version 6.

The contracting officer must insert the clause at 3452.239-70 (Internet Protocol version 6 (IPv6)) in all solicitations and resulting contracts for hardware and software.

3439.702

Department security requirements.

The contracting officer must include the solicitation provision in 3452.239-71 (Notice to offerors of Department security requirements) and the clause at 3452.239-72 (Department security requirements) when contractor employees will have access to Department-controlled facilities or space, or when the work (wherever located) involves the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information.

3439.703

Federal desktop core configuration (FDCC) compatibility.

The contracting officer must include the clause at 3452.239-73 (Federal desktop core configuration (FDCC) compatibility) in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration.

SUBCHAPTER G—CONTRACT MANAGEMENT

PART 3442—CONTRACT ADMINISTRATION AND AUDIT SERVICES

3442.7001: Litigation and claims clause.
3442.7002: Delays clause.
3442.7101: Policy and clause.

Authority: 5 U.S.C. 301.

Subpart 3442.70—Contract Monitoring

3442.7001

Litigation and claims clause.

The contracting officer must insert the clause at 3452.242-70 (Litigation and claims) in all solicitations and resultant cost-reimbursement contracts.

3442.7002

Delays.

The contracting officer must insert the clause at 3452.242-71 (Notice to the government of delays) in all solicitations and contracts other than purchase orders.

Subpart 3442.71—Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities

3442.7101

Policy and clause.

(a) It is the policy of ED that all meetings, conferences, and seminars be accessible to persons with disabilities.

(b) The contracting officer must insert the clause at 3452.242-73 (Accessibility of meetings, conferences, and seminars to persons with disabilities) in all solicitations and contracts.

PART 3443—CONTRACT MODIFICATIONS

3443.107: Contract clause

Authority: 5 U.S.C. 301.

Subpart 3443.1—General

3443.107

Contract clause.

The contracting officer must insert a clause substantially the same as 3452.243-70 (Key personnel) in all solicitations and resultant contracts in which it will be essential for the contracting officer to be notified that a change of designated key personnel is to take place by the contractor.

PART 3445—GOVERNMENT PROPERTY

3445.405: Contracts with foreign governments or international organizations.

Authority: 5 U.S.C. 301.

Subpart 3445.4—Contractor Use and Rental of Government Property

3445.405

Contracts with foreign governments or international organizations.

Requests by, or for the benefit of, foreign governments or international organizations to use ED production and research property must be approved by the HCA. The HCA must determine the amount of cost to be recovered or rental charged, if any, based on the facts and circumstances of each case.

PART 3447—TRANSPORTATION

3447.701: Foreign travel clause.

Start Printed Page 51902 Authority: 5 U.S.C. 301.

Subpart 3447.7—Foreign Travel

3447.701

Foreign travel clause.

The contracting officer must insert the clause at 3452.247-70 (Foreign travel) in all solicitations and resultant cost-reimbursement contracts.

SUBCHAPTER H—CLAUSES AND FORMS

PART 3452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3452.201-70: Contracting Officer's Representative (COR).
3452.202-1: Definitions—Department of Education.
3452.208-71: Printing.
3452.208-72: Paperwork Reduction Act.
3452.209-70: Conflict of interest certification.
3452.209-71: Conflict of interest
3452.215-70: Release of restricted data.
3452.216-70: Additional cost principles.
3452.216-71: Award-Term.
3452.224-70: Release of information under the Freedom of Information Act.
3452.224-71: Notice about research activities involving human subjects.
3452.224-72: Research activities involving human subjects.
3452.227-70: Publication and publicity.
3452.227-71: Advertising of awards.
3452.227-72: Use and non-disclosure agreement.
3452.227-73: Limitations on the use or disclosure of Government-furnished information marked with restrictive legends.
3452.228-70: Required insurance.
3452.232-70: Limitation of cost or funds.
3452.232-71: Incremental funding.
3452.237-70: Services of consultants.
3452.237-71: Observance of administrative closures.
3452.239-70: Internet protocol version 6 (IPv6).
3452.239-71: Notice to offerors of Department security requirements.
3452.239-72: Department security requirements.
3452.239-73: Federal desktop core configuration (FDCC) compatibility.
3452.242-70: Litigation and claims.
3452.242-71: Notice to the government of delays.
3452.242-73: Accessibility of meetings, conferences, and seminars to persons with disabilities.
3452.243-70: Key personnel.
3452.247-70: Foreign travel.

Authority: 5 U.S.C. 301.

Subpart 3452.2—Text of Provisions and Clauses

3452.201-70

Contracting Officer's Representative (COR).

As prescribed in 3401.670-3, insert a clause substantially the same as:

CONTRACTING OFFICER′S REPRESENTATIVE (COR) (XXXX 2010)

(a) The Contracting Officer's Representative (COR) is responsible for the technical aspects of the project, technical liaison with the contractor, and any other responsibilities that are specified in the contract. These responsibilities include inspecting all deliverables, including reports, and recommending acceptance or rejection to the contracting officer.

(b) The COR is not authorized to make any commitments or otherwise obligate the Government or authorize any changes that affect the contract price, terms, or conditions. Any contractor requests for changes shall be submitted in writing directly to the contracting officer or through the COR. No such changes shall be made without the written authorization of the contracting officer.

(d) The COR may be changed by the Government at any time, but notification of the change, including the name and address of the successor COR, will be provided to the contractor by the contracting officer in writing.

(End of Clause)

3452.202-1

Definitions—Department of Education.

As prescribed in 3402.201, insert the following clause in solicitations and contracts in which the clause at FAR 52.202-1 is required.

DEFINITIONS—DEPARTMENT OF EDUCATION (XXXX 2010)

(a) The definitions at FAR 2.101 are appended with those contained in Education Department Acquisition Regulations (EDAR) 3402.101.

(b) The EDAR is available via the Internet at http://www.ed.gov/policy/fund/reg/clibrary/edar.html.

(End of Clause)

3452.208-71

Printing.

As prescribed in 3408.870, insert the following clause in all solicitations and contracts other than purchase orders:

PRINTING (XXXX 2010)

Unless otherwise specified in this contract, the contractor shall not engage in, nor subcontract for, any printing (as that term is defined in Title I of the Government Printing and Binding Regulations in effect on the effective date of this contract) in connection with the performance of work under this contract; except that performance involving the duplication of fewer than 5,000 units of any one page, or fewer than 25,000 units in the aggregate of multiple pages, shall not be deemed to be printing. A unit is defined as one side of one sheet, one color only (with black counting as a color), with a maximum image size of 103/4 by 141/4 inches on a maximum paper size of 11 by 17 inches. Examples of counting the number of units: black plus one additional color on one side of one page counts as two units. Three colors (including black) on two sides of one page count as six units.

(End of Clause)

3452.208-72

Paperwork Reduction Act.

As prescribed in 3408.871, insert the following clause in all relevant solicitations and contracts:

PAPERWORK REDUCTION ACT (XXXX 2010)

(a) The Paperwork Reduction Act of 1980 (Pub. L. 96-511) applies to contractors that collect information for use or disclosure by the Federal Government. If the contractor will collect information requiring answers to identical questions from 10 or more people, no plan, questionnaire, interview guide, or other similar device for collecting information may be used without first obtaining clearance from the Chief Acquisition Officer (CAO) or the CAO's designee within the Department of Education (ED) and the Office of Management and Budget (OMB). Contractors and Contracting Officers' Representatives shall be guided by the provisions of 5 CFR part 1320, Controlling Paperwork Burdens on the Public, and should seek the advice of the Department's Paperwork Clearance Officer to determine the procedures for acquiring CAO and OMB clearance.

(b) The contractor shall obtain the required clearances through the Contracting Officer's Representative before expending any funds or making public contacts for the collection of information described in paragraph (a) of this clause. The authority to expend funds and proceed with the collection shall be in writing by the contracting officer. The contractor must plan at least 120 days for CAO and OMB clearance. Excessive delay caused by the Government that arises out of causes beyond the control and without the fault or negligence of the contractor will be considered in accordance with the Excusable Delays or Default clause of this contract.

(End of Clause)

3452.209-70

Conflict of interest certification.

As prescribed in 3409.507-1, insert the following provision in all solicitations anticipated to result in contract actions for services above the simplified acquisition threshold:

CONFLICT OF INTEREST CERTIFICATION (XXXX 2010)

(a)(1) The contractor, subcontractor, employee, or consultant, by signing the form in this clause, certifies that, to the best of their knowledge and belief, there are no relevant facts or circumstances that could give rise to an organizational or personal conflict of interest, (see FAR Subpart 9.5 for organizational conflicts of interest) (or apparent conflict of interest), for the organization or any of its staff, and that the contractor, subcontractor, employee, or consultant has disclosed all such relevant Start Printed Page 51903information if such a conflict of interest appears to exist to a reasonable person with knowledge of the relevant facts (or if such a person would question the impartiality of the contractor, subcontractor, employee, or consultant). Conflicts may arise in the following situations:

(i) Unequal access to information. A potential contractor, subcontractor, employee, or consultant has access to non-public information through its performance on a government contract.

(ii) Biased ground rules. A potential contractor, subcontractor, employee, or consultant has worked, in one government contract, or program, on the basic structure or ground rules of another government contract.

(iii) Impaired objectivity. A potential contractor, subcontractor, employee, or consultant, or member of their immediate family (spouse, parent, or child) has financial or other interests that would impair, or give the appearance of impairing, impartial judgment in the evaluation of government programs, in offering advice or recommendations to the government, or in providing technical assistance or other services to recipients of Federal funds as part of its contractual responsibility. “Impaired objectivity” includes but is not limited to the following situations that would cause a reasonable person with knowledge of the relevant facts to question a person's objectivity:

(A) Financial interests or reasonably foreseeable financial interests in or in connection with products, property, or services that may be purchased by an educational agency, a person, organization, or institution in the course of implementing any program administered by the Department;

(B) Significant connections to teaching methodologies or approaches that might require or encourage the use of specific products, property, or services; or

(C) Significant identification with pedagogical or philosophical viewpoints that might require or encourage the use of a specific curriculum, specific products, property, or services.

(2) Offerors must provide the disclosure described above on any actual or potential conflict of interest (or apparent conflict of interest) regardless of their opinion that such a conflict or potential conflict (or apparent conflict of interest) would not impair their objectivity.

(3) In a case in which an actual or potential conflict (or apparent conflict of interest) is disclosed, the Department will take appropriate actions to eliminate or address the actual or potential conflict, including but not limited to mitigating or neutralizing the conflict, when appropriate, through such means as ensuring a balance of views, disclosure with the appropriate disclaimers, or by restricting or modifying the work to be performed to avoid or reduce the conflict. In this clause, the term “potential conflict” means reasonably foreseeable conflict of interest.

(b) The contractor, subcontractor, employee, or consultant agrees that if “impaired objectivity”, or an actual or potential conflict of interest (or apparent conflict of interest) is discovered after the award is made, it will make a full disclosure in writing to the contracting officer. This disclosure shall include a description of actions that the contractor has taken or proposes to take to avoid, mitigate, or neutralize the actual or potential conflict (or apparent conflict of interest).

(c) Remedies. The Government may terminate this contract for convenience, in whole or in part, if it deems such termination necessary to avoid the appearance of a conflict of interest. If the contractor was aware of a potential conflict of interest prior to award or discovered an actual or potential conflict after award and did not disclose or misrepresented relevant information to the contracting officer, the Government may terminate the contract for default, or pursue such other remedies as may be permitted by law or this contract. These remedies include imprisonment for up to five years for violation of 18 U.S.C. 1001 and fines of up to $5000 for violation of 31 U.S.C. 3802. Further remedies include suspension or debarment from contracting with the Federal government. The contractor may also be required to reimburse the Department for costs the Department incurs arising from activities related to conflicts of interest. An example of such costs would be those incurred in processing Freedom of Information Act requests related to a conflict of interest.

(d) In cases where remedies short of termination have been applied, the contractor, subcontractor, employee, or consultant agrees to eliminate the organizational conflict of interest, or mitigate it to the satisfaction of the contracting officer.

(e) The contractor further agrees to insert in any subcontract or consultant agreement hereunder, provisions that conform substantially to the language of this clause, including specific mention of potential remedies and this paragraph (e).

(f) Conflict of Interest Certification. The offeror, [insert name of offeror], hereby certifies that, to the best of their knowledge and belief, there are no present or currently planned interests (financial, contractual, organizational, or otherwise) relating to the work to be performed under the contract or task order resulting from Request for Proposal No. [insert number] that would create any actual or potential conflict of interest (or apparent conflicts of interest) (including conflicts of interest for immediate family members: spouses, parents, children) that would impinge on its ability to render impartial, technically sound, and objective assistance or advice or result in it being given an unfair competitive advantage. In this clause, the term “potential conflict” means reasonably foreseeable conflict of interest. The offeror further certifies that it has and will continue to exercise due diligence in identifying and removing or mitigating, to the Government's satisfaction, such conflict of interest (or apparent conflict of interest).

Offeror's Name

RFP/Contract No.

Signature

Title

Date

(End of Clause)

3452.209-71

Conflict of interest.

As prescribed in 3409.507-2, insert the following clause in all contracts for services above the simplified acquisition threshold:

CONFLICT OF INTEREST (XXXX 2010)

(a)(1) The contractor, subcontractor, employee, or consultant, has certified that, to the best of their knowledge and belief, there are no relevant facts or circumstances that could give rise to an organizational or personal conflict of interest, (see FAR Subpart 9.5 for organizational conflicts of interest), (or apparent conflict of interest) for the organization or any of its staff, and that the contractor, subcontractor, employee, or consultant has disclosed all such relevant information if such a conflict of interest appears to exist to a reasonable person with knowledge of the relevant facts (or if such a person would question the impartiality of the contractor, subcontractor, employee, or consultant). Conflicts may arise in the following situations:

(i) Unequal access to information—A potential contractor, subcontractor, employee, or consultant has access to non-public information through its performance on a government contract.

(ii) Biased ground rules—A potential contractor, subcontractor, employee, or consultant has worked, in one government contract, or program, on the basic structure or ground rules of another government contract.

(iii) Impaired objectivity—A potential contractor, subcontractor, employee, or consultant, or member of their immediate family (spouse, parent, or child) has financial or other interests that would impair, or give the appearance of impairing, impartial judgment in the evaluation of government programs, in offering advice or recommendations to the government, or in providing technical assistance or other services to recipients of Federal funds as part of its contractual responsibility. “Impaired objectivity” includes but is not limited to the following situations that would cause a reasonable person with knowledge of the relevant facts to question a person's objectivity:

(B) Significant connections to teaching methodologies that might require or encourage the use of specific products, property, or services; or

(C) Significant identification with pedagogical or philosophical viewpoints that might require or encourage the use of a specific curriculum, specific products, property, or services.

(2) Offerors must provide the disclosure described above on any actual or potential Start Printed Page 51904conflict (or apparent conflict of interest) of interest regardless of their opinion that such a conflict or potential conflict (or apparent conflict of interest) would not impair their objectivity.

(3) In a case in which an actual or potential conflict (or apparent conflict of interest) is disclosed, the Department will take appropriate actions to eliminate or address the actual or potential conflict (or apparent conflict of interest), including but not limited to mitigating or neutralizing the conflict, when appropriate, through such means as ensuring a balance of views, disclosure with the appropriate disclaimers, or by restricting or modifying the work to be performed to avoid or reduce the conflict. In this clause, the term “potential conflict” means reasonably foreseeable conflict of interest.

(b) The contractor, subcontractor, employee, or consultant agrees that if “impaired objectivity”, or an actual or potential conflict of interest (or apparent conflict of interest) is discovered after the award is made, it will make a full disclosure in writing to the contracting officer. This disclosure shall include a description of actions that the contractor has taken or proposes to take, after consultation with the contracting officer, to avoid, mitigate, or neutralize the actual or potential conflict (or apparent conflict of interest).

(c) Remedies. The Government may terminate this contract for convenience, in whole or in part, if it deems such termination necessary to avoid the appearance of a conflict of interest. If the contractor was aware of a potential conflict of interest prior to award or discovered an actual or potential conflict (or apparent conflict of interest) after award and did not disclose or misrepresented relevant information to the contracting officer, the Government may terminate the contract for default, or pursue such other remedies as may be permitted by law or this contract. These remedies include imprisonment for up to five years for violation of 18 U.S.C. 1001 and fines of up to $5000 for violation of 31 U.S.C. 3802. Further remedies include suspension or debarment from contracting with the Federal government. The contractor may also be required to reimburse the Department for costs the Department incurs arising from activities related to conflicts of interest. An example of such costs would be those incurred in processing Freedom of Information Act requests related to a conflict of interest.

(End of Clause)

3452.215-70

Release of restricted data.

As prescribed in 3415.209, insert the following provision in solicitations:

RELEASE OF RESTRICTED DATA (XXXXX 2010)

(a) Offerors are hereby put on notice that regardless of their use of the legend set forth in FAR 52.215-1(e), Restriction on Disclosure and Use of Data, the Government may be required to release certain data contained in the proposal in response to a request for the data under the Freedom of Information Act (FOIA). The Government's determination to withhold or disclose a record will be based upon the particular circumstance involving the data in question and whether the data may be exempted from disclosure under FOIA. In accordance with Executive Order 12600 and to the extent permitted by law, the Government will notify the offeror before it releases restricted data.

(b) By submitting a proposal or quotation in response to this solicitation:

(1) The offeror acknowledges that the Department may not be able to withhold nor deny access to data requested pursuant to FOIA and that the Government's FOIA officials shall make that determination;

(2) The offeror agrees that the Government is not liable for disclosure if the Department has determined that disclosure is required by FOIA;

(3) The offeror acknowledges that proposals not resulting in a contract remain subject to FOIA; and

(4) The offeror agrees that the Government is not liable for disclosure or use of unmarked data and may use or disclose the data for any purpose, including the release of the information pursuant to requests under FOIA.

(1) A restrictive legend or statement differing in substance from the one required by the solicitation provision in FAR 52.215-1(e), Restriction on Disclosure and Use of Data, or

(2) A statement taking exceptions to the terms of paragraphs (a) or (b) of this provision.

(End of Provision)

3452.216-70

Additional cost principles.

Insert the following clause in solicitations and contracts as prescribed in 3416.307(b):

ADDITIONAL COST PRINCIPLES (AUG 1987)

(a) Bid and Proposal Costs. Bid and proposal costs are the immediate costs of preparing bids, proposals, and applications for potential Federal and non-Federal grants, contracts, and other agreements, including the development of scientific, cost, and other data needed to support the bids, proposals, and applications. Bid and proposal costs of the current accounting period are allowable as indirect costs; bid and proposal costs of past accounting periods are unallowable as costs of the current period. However, if the organization's established practice is to treat these costs by some other method, they may be accepted if they are found to be reasonable and equitable. Bid and proposal costs do not include independent research and development costs or pre-award costs.

(b) Independent research and development costs. Independent research and development is research and development that is not sponsored by Federal and non-Federal grants, contracts, or other agreements. Independent research and development shall be allocated its proportionate share of indirect costs on the same basis as the allocations of indirect costs of sponsored research and development. The costs of independent research and development, including its proportionate share of indirect costs, are unallowable.

(End of Clause)

3452.216-71

Award-term.

As prescribed in 3416.470, insert a clause substantially the same as the following in all solicitations and contracts where an award-term arrangement is anticipated:

AWARD-TERM (XXXX 2010)

(a) The initial [insert initial contract term] contract term or ordering period may be extended or reduced on the basis of contractor performance, resulting in a contract term or an ordering period lasting at least [insert minimum contract term] years from the date of contract award, to a maximum of [insert maximum contract term] years after the date of contract award.

(b) The contractor's performance will be measured against stated standards by the performance monitors, who will report their findings to the Award Term Determining Official (or Board).

(c) Bilateral changes may be made to the award-term plan at any time. If agreement cannot be made within 60 days, the Government reserves the right to make unilateral changes prior to the start of an award-term period.

(d) The contractor will submit a brief written self-evaluation of its performance within X days after the end of the evaluation period. The self-evaluation report shall not exceed seven pages, and it may be considered in the Award Term Review Board's (ATRB's) (or Term Determining Official's) evaluation of the contractor's performance during this period.

(e) The contract term or ordering period may be unilaterally modified to reflect the ATRB's decision. If the contract term or ordering period has one year remaining, the operation of the contract award-term feature will cease and the contract term or ordering period will not extend beyond the maximum term stated in the contract.

(f) Award terms that have not begun may be cancelled (rather than terminated), should the need for the items or services no longer exists. No equitable adjustments to the contract price are applicable, as this is not the same procedure as a termination for convenience.

(g) The decisions made by the ATRB or Term Determining Official may be made Start Printed Page 51905unilaterally. Alternate Dispute Resolution procedures shall be utilized when appropriate.

(End of Clause)

3452.224-70

Release of information under the Freedom of Information Act.

As prescribed in 3424.203, insert the following clause in solicitations and contracts.

RELEASE OF INFORMATION UNDER THE FREEDOM OF INFORMATION ACT (XXXX 2010)

By entering into a contract with the Department of Education, the contractor, without regard to proprietary markings, approves the release of the entire contract and all related modifications and task orders including, but not limited to:

(1) Unit prices, including labor rates;

(2) Statements of Work/Performance Work Statements generated by the contractor;

(3) Performance requirements, including incentives, performance standards, quality levels, and service level agreements;

(4) Reports, deliverables, and work products delivered in performance of the contract (including quality of service, performance against requirements/standards/service level agreements);

(5) Any and all information, data, software, and related documentation first provided under the contract;

(6) Proposals or portions of proposals incorporated by reference; and

(7) Other terms and conditions.

(End of Clause)

3452.224-71

Notice about research activities involving human subjects.

As prescribed in 3424.170, insert the following provision in any solicitation where a resultant contract will include, or is likely to include, research activities involving human subjects covered under 34 CFR part 97:

NOTICE ABOUT RESEARCH ACTIVITIES INVOLVING HUMAN SUBJECTS (XXXX 2010)

(a) Applicable Regulations. In accordance with Department of Education regulations on the protection of human subjects, title 34, Code of Federal Regulations, part 97 (“the regulations”), the contractor, any subcontractors, and any other entities engaged in covered (nonexempt) research activities are required to establish and maintain procedures for the protection of human subjects.

(b) Definitions. (1) The regulations define research as “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” (34 CFR 97.102(d)). If an activity follows a deliberate plan designed to develop or contribute to generalizable knowledge, it is research. Research includes activities that meet this definition, whether or not they are conducted under a program considered research for other purposes. For example, some demonstration and service programs may include research activities.

(2) The regulations define a human subject as a living individual about whom an investigator (whether professional or student) conducting research obtains data through intervention or interaction with the individual, or obtains identifiable private information. (34 CFR 97.102(f)). The definition of a human subject is met if an activity involves obtaining—

(i) Information about a living person by—

(A) Manipulating that person's environment, as might occur when a new instructional technique is tested; or

(B) Communicating or interacting with the individual, as occurs with surveys and interviews; or

(ii) Private information about a living person in such a way that the information can be linked to that individual (the identity of the subject is or may be readily determined by the investigator or associated with the information). Private information includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information that has been provided for specific purposes by an individual and that an individual can reasonably expect will not be made public (for example, a school health record).

(c) Exemptions. The regulations provide exemptions from coverage for activities in which the only involvement of human subjects will be in one or more of the categories set forth in 34 CFR 97.101(b)(1)-(6). However, if the research subjects are children, the exemption at 34 CFR 97.101(b)(2) (i.e., research involving the use of educational tests, survey procedures, interview procedures or observation of public behavior) is modified by 34 CFR 97.401(b), as explained in paragraph (d) of this provision. Research studies that are conducted under a Federal statute that requires without exception that the confidentiality of the personally identifiable information will be maintained throughout the research and thereafter, e.g., the Institute of Education Sciences confidentiality statute, 20 U.S.C. 9573, are exempt under 34 CFR 97.101(b)(3)(ii).

(d) Children as research subjects. Paragraph (a) of 34 CFR 97.402 of the regulations defines children as “persons who have not attained the legal age for consent to treatments or procedures involved in the research, under the applicable law of the jurisdiction in which the research will be conducted.” Paragraph (b) of 34 CFR 97.401 of the regulations provides that, if the research involves children as subjects—

(1) The exemption at 34 CFR 97.101(b)(2) does not apply to activities involving—

(i) Survey or interview procedures involving children as subjects; or

(ii) Observations of public behavior of children in which the investigator or investigators will participate in the activities being observed.

(2) The exemption at 34 CFR 97.101(b)(2) continues to apply, unmodified by 34 CFR 97.401(b), to—

(i) Educational tests; and

(ii) Observations of public behavior in which the investigator or investigators will not participate in the activities being observed.

(e) Proposal Instructions. An offeror proposing to do research that involves human subjects must provide information to the Department on the proposed exempt and nonexempt research activities. The offeror should submit this information as an attachment to its technical proposal. No specific page limitation applies to this requirement, but the offeror should be brief and to the point.

(1) For exempt research activities involving human subjects, the offeror should identify the exemption(s) that applies and provide sufficient information to allow the Department to determine that the designated exemption(s) is appropriate. Normally, the narrative on the exemption(s) can be provided in one paragraph.

(2) For nonexempt research activities involving human subjects, the offeror must cover the following seven points in the information it provides to the Department:

(i) Human subjects' involvement and characteristics: Describe the characteristics of the subject population, including their anticipated number, age range, and health status. Identify the criteria for inclusion or exclusion of any subpopulation. Explain the rationale for the involvement of special classes of subjects, such as children, children with disabilities, adults with disabilities, persons with mental disabilities, pregnant women, institutionalized individuals, or others who are likely to be vulnerable.

(ii) Sources of materials: Identify the sources of research material obtained from or about individually identifiable living human subjects in the form of specimens, records, or data.

(iii) Recruitment and informed consent: Describe plans for the recruitment of subjects and the consent procedures to be followed.

(iv) Potential risks: Describe potential risks (physical, psychological, social, financial, legal, or other) and assess their likelihood and seriousness. Where appropriate, discuss alternative treatments and procedures that might be advantageous to the subjects.

(v) Protection against risk: Describe the procedures for protecting against or minimizing potential risks, including risks to confidentiality, and assess their likely effectiveness. Where appropriate, discuss provisions for ensuring necessary medical or professional intervention in the event of adverse effects to the subjects. Also, where appropriate, describe the provisions for monitoring the data collected to ensure the safety of the subjects.

(vi) Importance of knowledge to be gained: Discuss why the risks to the subjects are reasonable in relation to the importance of the knowledge that may reasonably be expected to result.

(vii) Collaborating sites: If research involving human subjects will take place at collaborating site(s), name the sites and briefly describe their involvement or role in the research. Normally, the seven-point narrative can be provided in two pages or less.

(3) If a reasonable potential exists that a need to conduct research involving human subjects may be identified after award of the Start Printed Page 51906contract and the offeror's proposal contains no definite plans for such research, the offeror should briefly describe the circumstances and nature of the potential research involving human subjects.

(f) Assurances and Certifications. (1) In accordance with the regulations and the terms of this provision, all contractors and subcontractors that will be engaged in covered human subjects research activities shall be required to comply with the requirements for Assurances and Institutional Review Board approvals, as set forth in the contract clause 3452.224-72 (Research activities involving human subjects).

(2) The contracting officer reserves the right to require that the offeror have or apply for the assurance and provide documentation of IRB approval of the research prior to award.

(g) (1) The regulations, and related information on the protection of human research subjects, can be found on the Department's protection of human subjects in research Web site: http://www.ed.gov/about/offices/list/ocfo/humansub.html.

(2) Offerors may also contact the following office to obtain information about the regulations for the protection of human subjects and related policies and guidelines:

U.S. Department of Education, Office of the Chief Financial Officer, Financial Management Operations, 400 Maryland Avenue, SW., Washington, DC 20202-4331, Telephone: (202) 260-3353.

(End of Provision)

3452.224-72

Research activities involving human subjects.

As prescribed in 3424.170, insert the following clause in any contract that includes research activities involving human subjects covered under 34 CFR part 97:

RESEARCH ACTIVITIES INVOLVING HUMAN SUBJECTS (XXXX 2010)

(a) In accordance with Department of Education regulations on the protection of human subjects in research, title 34, Code of Federal Regulations, part 97 (“the regulations”), the contractor, any subcontractors, and any other entities engaged in covered (nonexempt) research activities are required to establish and maintain procedures for the protection of human subjects. The definitions in 34 CFR 97.102 apply to this clause. As used in this clause, covered research means research involving human subjects that is not exempt under 34 CFR 97.101(b) and 97.401(b).

(b) If ED determines that proposed research activities involving human subjects are covered (i.e., not exempt under the regulations), the contracting officer or contacting officer's designee will require the contractor to apply for the Federal Wide Assurance from the Office for Human Research Protections, U.S. Department of Health and Human Services, if the contractor does not already have one on file. The contracting officer will also require that the contractor obtain and send to the Department documentation of Institutional Review Board (IRB) review and approval of the research.

(c) In accordance with 34 CFR part 97, all subcontractors and any legally separate entity (neither owned nor operated by the contractor) that will be engaged in covered research activities under or related to this contract shall be required to comply with the requirements for assurances and IRB approvals. The contractor must include the substance of this clause, including paragraph (c) of this clause, in all subcontracts, and must notify any other entities engaged in the covered research activities of their responsibility to comply with the regulations.

(d) Under no condition shall the contractor conduct, or allow to be conducted, any covered research activity involving human subjects prior to the Department's receipt of the certification that the research has been reviewed and approved by the IRB. (34 CFR 97.103(f)). No covered research involving human subjects shall be initiated under this contract until the contractor has provided the contracting officer (or the contracting officer's designee) a properly completed certification form certifying IRB review and approval of the research activity, and the contracting officer or designee has received the certification. This restriction applies to the activities of each participating entity.

(e) In accordance with 34 CFR 97.109(e), an IRB must conduct continuing reviews of covered research activities at intervals appropriate to the degree of risk, but not less than once a year. Covered research activities that are expected to last one year or more are therefore subject to review by an IRB at least once a year.

(1) For each covered activity under this contract that requires continuing review, the contractor shall submit an annual written representation to the contracting officer (or the contracting officer's designee) stating whether covered research activities have been reviewed and approved by an IRB within the previous 12 months. The contractor may use the form titled “Protection of Human Subjects: Assurance Identification/Certification/Declaration of Exemption” for this representation. For multi-institutional projects, the contractor shall provide this information on its behalf and on behalf of any other entity engaged in covered research activities for which continuing IRB reviews are required.

(2) If the IRB disapproves, suspends, terminates, or requires modification of any covered research activities under this contract, the contractor shall immediately notify the contracting officer in writing of the IRB's action.

(f) The contractor shall bear full responsibility for performing as safely as is feasible all activities under this contract involving the use of human subjects and for complying with all applicable regulations and requirements concerning human subjects. No one (neither the contractor, nor any subcontractor, agent, or employee of the contractor, nor any other person or organization, institution, or group of any kind whatsoever) involved in the performance of such activities shall be deemed to constitute an agent or employee of the Department of Education or of the Federal government with respect to such activities. The contractor agrees to discharge its obligations, duties, and undertakings and the work pursuant thereto, whether requiring professional judgment or otherwise, as an independent contractor without imputing liability on the part of the Government for the acts of the contractor and its employees.

(g) Upon discovery of any noncompliance with any of the requirements or standards stated in paragraphs (b) and (c) of this clause, the contractor shall immediately correct the deficiency. If at any time during performance of this contract, the contracting officer determines, in consultation with the Protection of Human Subjects Coordinator, Office of the Chief Financial Officer, or the sponsoring office, that the contractor is not in compliance with any of the requirements or standards stated in paragraphs (b) and (c) of this clause, the contracting officer may immediately suspend, in whole or in part, work and further payments under this contract until the contractor corrects such noncompliance. Notice of the suspension may be communicated by telephone and confirmed in writing.

(h) The Government may terminate this contract, in full or in part, for failure to fully comply with any regulation or requirement related to human subjects involved in research. Such termination may be in lieu of or in addition to suspension of work or payment. Nothing herein shall be construed to limit the Government's right to terminate the contract for failure to fully comply with such requirements.

(i) The regulations, and related information on the protection of human research subjects, can be found on the Department's protection of human subjects in research Web site: http://ed.gov/about/offices/list/ocfo/humansub.html. Contractors may also contact the following office to obtain information about the regulations for the protection of human subjects and related policies and guidelines:

U.S. Department of Education, Office of the Chief Financial Officer, Financial Management Operations, 400 Maryland Avenue, SW., Washington, DC 20202-4331, Telephone: (202) 260-3353.

(End of Clause)

3452.227-70

Publication and publicity.

As prescribed in 3427.409, insert the following clause in all solicitations and contracts other than purchase orders:

PUBLICATION AND PUBLICITY (XXXX 2010)

(a) Unless otherwise specified in this contract, the contractor is encouraged to publish and otherwise promote the results of its work under this contract. A copy of each article or work submitted by the contractor for publication shall be promptly sent to the contracting officer's representative. The contractor shall also inform the representative when the article or work is published and furnish a copy in the published form.

(b) The contractor shall acknowledge the support of the Department of Education in publicizing the work under this contract in Start Printed Page 51907any medium. This acknowledgement shall read substantially as follows:

“This project has been funded at least in part with Federal funds from the U.S. Department of Education under contract number [Insert number]. The content of this publication does not necessarily reflect the views or policies of the U.S. Department of Education nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”

(End of Clause)

3452.227-71

Advertising of awards.

As prescribed in 3427.409, insert the following clause in all solicitations and contracts other than purchase orders:

ADVERTISING OF AWARDS (XXXX 2010)

The contractor agrees not to refer to awards issued by, or products or services delivered to, the Department of Education in commercial advertising in such a manner as to state or imply that the product or service provided is endorsed by the Federal government or is considered by the Federal government to be superior to other products or services.

(End of Clause)

3452.227-72

Use and non-disclosure agreement.

As prescribed in 3427.409, insert the following clause in all contracts over the simplified acquisition threshold, and in contracts under the simplified acquisition threshold as appropriate:

USE AND NON-DISCLOSURE AGREEMENT (XXXX 2010)

(a) Except as provided in paragraph (b) of this clause, proprietary data, technical data, or computer software delivered to the Government with restrictions on use, modification, reproduction, release, performance, display, or disclosure may not be provided to third parties unless the intended recipient completes and signs the use and non-disclosure agreement in paragraph (c) of this clause prior to release or disclosure of the data.

(1) The specific conditions under which an intended recipient will be authorized to use, modify, reproduce, release, perform, display, or disclose proprietary data or technical data subject to limited rights, or computer software subject to restricted rights must be stipulated in an attachment to the use and non-disclosure agreement.

(2) For an intended release, disclosure, or authorized use of proprietary data, technical data, or computer software subject to special license rights, modify paragraph (c)(1)(iv) of this clause to enter the conditions, consistent with the license requirements, governing the recipient's obligations regarding use, modification, reproduction, release, performance, display, or disclosure of the data or software.

(b) The requirement for use and non-disclosure agreements does not apply to Government contractors that require access to a third party's data or software for the performance of a Government contract that contains the 3452.227-73 clause, Limitations on the use or disclosure of Government-furnished information marked with restrictive legends.

Use and Non-Disclosure Agreement

The undersigned, [Insert Name], an authorized representative of the [Insert Company Name], (which is hereinafter referred to as the “recipient”) requests the Government to provide the recipient with proprietary data, technical data, or computer software (hereinafter referred to as “data”) in which the Government's use, modification, reproduction, release, performance, display, or disclosure rights are restricted. Those data are identified in an attachment to this agreement. In consideration for receiving such data, the recipient agrees to use the data strictly in accordance with this agreement.

(1) The recipient shall—

(i) Use, modify, reproduce, release, perform, display, or disclose data marked with Small Business Innovative Research (SBIR) data rights legends only for government purposes and shall not do so for any commercial purpose. The recipient shall not release, perform, display, or disclose these data, without the express written permission of the contractor whose name appears in the restrictive legend (the contractor), to any person other than its subcontractors or suppliers, or prospective subcontractors or suppliers, who require these data to submit offers for, or perform, contracts with the recipient. The recipient shall require its subcontractors or suppliers, or prospective subcontractors or suppliers, to sign a use and non-disclosure agreement prior to disclosing or releasing these data to such persons. Such an agreement must be consistent with the terms of this agreement.

(ii) Use, modify, reproduce, release, perform, display, or disclose proprietary data or technical data marked with limited rights legends only as specified in the attachment to this agreement. Release, performance, display, or disclosure to other persons is not authorized unless specified in the attachment to this agreement or expressly permitted in writing by the contractor.

(iii) Use computer software marked with restricted rights legends only in performance of contract number [insert contract number(s)]. The recipient shall not, for example, enhance, decompile, disassemble, or reverse engineer the software; time share; or use a computer program with more than one computer at a time. The recipient may not release, perform, display, or disclose such software to others unless expressly permitted in writing by the licensor whose name appears in the restrictive legend.

(iv) Use, modify, reproduce, release, perform, display, or disclose data marked with special license rights legends [To be completed by the contracting officer. See paragraph (a)(2) of this clause. Omit if none of the data requested is marked with special license rights legends].

(2) The recipient agrees to adopt or establish operating procedures and physical security measures designed to protect these data from inadvertent release or disclosure to unauthorized third parties.

(3) The recipient agrees to accept these data “as is” without any Government representation as to suitability for intended use or warranty whatsoever. This disclaimer does not affect any obligation the Government may have regarding data specified in a contract for the performance of that contract.

(4) The recipient may enter into any agreement directly with the contractor with respect to the use, modification, reproduction, release, performance, display, or disclosure of these data.

(5) The recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of data received from the Government with restrictive legends by the recipient or any person to whom the recipient has released or disclosed the data.

(6) The recipient is executing this agreement for the benefit of the contractor. The contractor is a third party beneficiary of this agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against the recipient or any other person to whom the recipient has released or disclosed the data, to seek damages from any breach of this agreement, or to otherwise enforce this agreement.

(7) The recipient agrees to destroy these data, and all copies of the data in its possession, no later than 30 days after the date shown in paragraph (8) of this agreement, to have all persons to whom it released the data do so by that date, and to notify the contractor that the data have been destroyed.

(8) This agreement shall be effective for the period commencing with the recipient's execution of this agreement and ending upon [Insert Date]. The obligations imposed by this agreement shall survive the expiration or termination of the agreement.

[Insert business name.]

Recipient's Business Name

[Have representative sign.]

Authorized Representative

[Insert date.]

Date

[Insert name and title.]

Representative's Typed Name and Title

(End of Clause)

3452.227-73

Limitations on the use or disclosure of Government-furnished information marked with restrictive legends.

As prescribed in 3427.409, insert the following clause in all contracts of third party vendors who require access to Government-furnished information including other contractors' technical data, proprietary information, or Start Printed Page 51908software: (COSTHA; PHMSA-2009-0126-0011);

LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED INFORMATION MARKED WITH RESTRICTIVE LEGENDS (XXXX 2010)

(a) For contracts under which data are to be produced, furnished, or acquired, the terms limited rights and restricted rights are defined in the rights in data—general clause (FAR 52.227-14).

(b) Proprietary data, technical data, or computer software provided to the contractor as Government-furnished information (GFI) under this contract may be subject to restrictions on use, modification, reproduction, release, performance, display, or further disclosure.

(1) Proprietary data with legends that serve to restrict disclosure or use of data. The contractor shall use, modify, reproduce, perform, or display proprietary data received from the Government with proprietary or restrictive legends only in the performance of this contract. The contractor shall not, without the express written permission of the party who owns the data, release, or disclose such data or software to any person.

(2) GFI marked with limited or restricted rights legends. The contractor shall use, modify, reproduce, perform, or display technical data received from the Government with limited rights legends or computer software received with restricted rights legends only in the performance of this contract. The contractor shall not, without the express written permission of the party whose name appears in the legend, release, or disclose such data or software to any person.

(3) GFI marked with specially negotiated license rights legends. The contractor shall use, modify, reproduce, release, perform, or display proprietary data, technical data, or computer software received from the Government with specially negotiated license legends only as permitted in the license. Such data or software may not be released or disclosed to other persons unless permitted by the license and, prior to release or disclosure, the intended recipient has completed the use and non-disclosure agreement. The contractor shall modify paragraph (c)(1)(iii) of the use and non-disclosure agreement (3452.227-72) to reflect the recipient's obligations regarding use, modification, reproduction, release, performance, display, and disclosure of the data or software.

(1) The contractor agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses, arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of proprietary data, technical data, or computer software received from the Government with restrictive legends by the contractor or any person to whom the contractor has released or disclosed such data or software.

(2) The contractor agrees that the party whose name appears on the restrictive legend, in addition to any other rights it may have, is a third party beneficiary who has the right of direct action against the contractor, or any person to whom the contractor has released or disclosed such data or software, for the unauthorized duplication, release, or disclosure of proprietary data, technical data, or computer software subject to restrictive legends.

(End of Clause)

3452.228-70

Required insurance.

As prescribed in 3428.311-2, insert the following clause in all solicitations and resultant cost-reimbursement contracts:

REQUIRED INSURANCE (XXXX 2010)

(a) The contractor shall procure and maintain such insurance as required by law or regulation, including but not limited to the requirements of FAR Subpart 28.3. Prior written approval of the contracting officer shall be required with respect to any insurance policy, the premiums for which the contractor proposes to treat as a direct cost under this contract, and with respect to any proposed qualified program of self-insurance. The terms of any other insurance policy shall be submitted to the contracting officer for approval upon request.

(b) Unless otherwise authorized in writing by the contracting officer, the contractor shall not procure or maintain for its own protection any insurance covering loss or destruction of, or damage to, Government property.

(End of Clause)

3452.232-70

Limitation of cost or funds.

The following clause shall be inserted in all contracts that include a limitation of cost or limitation of funds clause in accordance with 3432.705-2:

LIMITATION OF COST OR FUNDS (XXXX 2010)

(a) Under the circumstances in FAR 32.704(a)(1), the contractor shall submit the following information in writing to the contracting officer:

(1) Name and address of the contractor.

(2) Contract number and expiration date.

(3) Contract items and amounts that will exceed the estimated cost of the contract or the limit of the funds allotted.

(4) The elements of cost that changed from the original estimate (for example: labor, material, travel, overhead), furnished in the following order:

(i) Original estimate.

(ii) Costs incurred to date.

(iii) Estimated cost to completion.

(iv) Revised estimate.

(v) Amount of adjustment.

(5) The factors responsible for the increase.

(6) The latest date by which funds must be available to the contractor to avoid delays in performance, work stoppage, or other impairments.

(b) A fixed fee provided in a contract may not be changed if a cost overrun is funded. Changes in a fixed fee may be made only to reflect changes in the scope of work that justify an increase or decrease in the fee.

(End of Clause)

3452.232-71

Incremental funding.

As prescribed in 3432.705-2, insert the following provision in solicitations if a cost-reimbursement contract using incremental funding is contemplated:

INCREMENTAL FUNDING (XXXX 2010)

Sufficient funds are not presently available to cover the total cost of the complete project described in this solicitation. However, it is the Government's intention to negotiate and award a contract using the incremental funding concepts described in the clause titled “Limitation of Funds” in FAR 52.232-22. Under that clause, which will be included in the resultant contract, initial funds will be obligated under the contract to cover an estimated base performance period. Additional funds are intended to be allotted to the contract by contract modification, up to and including the full estimated cost of the entire period of performance. This intent notwithstanding, the Government will not be obligated to reimburse the contractor for costs incurred in excess of the periodic allotments, nor will the contractor be obligated to perform in excess of the amount allotted.

(End of Provision)

3452.237-70

Services of consultants.

As prescribed in 3437.270, insert the following clause in all solicitations and resultant cost-reimbursement contracts that do not provide services to FSA:

SERVICES OF CONSULTANTS (XXXX 2010)

Except as otherwise expressly provided elsewhere in this contract, and notwithstanding the provisions of the clause of the contract entitled “Subcontracts” (FAR 52.244-2), the prior written approval of the contracting officer shall be required—

(a) If any employee of the contractor is to be paid as a “consultant” under this contract; and

(b) (1) For the utilization of the services of any consultant under this contract exceeding the daily rate set forth elsewhere in this contract or, if no amount is set forth, $800, exclusive of travel costs, or if the services of any consultant under this contract will exceed 10 days in any calendar year.

(2) If that contracting officer's approval is required, the contractor shall obtain and furnish to the contracting officer information concerning the need for the consultant services and the reasonableness of the fee to be paid, including, but not limited to, whether fees to be paid to any consultant exceed the lowest fee charged by the consultant to others for performing consultant services of a similar nature.

(End of Clause)

3452.237-71

Observance of administrative closures.

As prescribed in 3437.170, insert the following clause in all solicitations and service contracts:

OBSERVANCE OF ADMINISTRATIVE CLOSURES (XXXX 2010)

(a) The contract schedule identifies all Federal holidays that are observed under this contract. Contractor performance is required under this contract at all other times, and compensated absences are not extended due to administrative closures of Government facilities and operations due to inclement weather, Presidential decree, or other administrative issuances where Government personnel receive early dismissal instructions.

(b) In cases of contract performance at a Government facility when the facility is closed, the vendor may arrange for performance to continue during the closure at the contractor's site, if appropriate.

(End of Clause)

3452.239-70

Internet protocol version 6 (IPv6)

As prescribed in 3439.701, insert the following clause:

INTERNET PROTOCOL VERSION 6 (XXXX 2010)

(a) Any system hardware, software, firmware, or networked component (voice, video, or data) developed, procured, or acquired in support or performance of this contract shall be capable of transmitting, receiving, processing, forwarding, and storing digital information across system boundaries utilizing system packets that are formatted in accordance with commercial standards of Internet protocol (IP) version 6 (IPv6) as set forth in Internet Engineering Task Force (IETF) Request for Comments (RFC) 2460 and associated IPv6-related IETF RFC standards. In addition, this system shall maintain interoperability with IPv4 systems and provide at least the same level of performance and reliability capabilities of IPv4 products.

(b) Specifically, any new IP product or system developed, acquired, or produced must—

(1) Interoperate with both IPv6 and IPv4 systems and products; and

(2) Have available contractor/vendor IPv6 technical support for development and implementation and fielded product management.

(End of Clause)

3452.239-71

Notice to offerors of Department security requirements.

As prescribed in 3439.702, include the following provision in solicitations when the offeror's employees would have access to Department-controlled facilities or space, or when the work (wherever located) would involve the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information:

NOTICE TO OFFERORS OF DEPARTMENT SECURITY REQUIREMENTS (XXXX 2010)

(a) The offeror and any of its future subcontractors will have to comply with Department security policy requirements as set forth in the “Bidder's Security Package: Security Requirements for Contractors Doing Business with the Department of Education” at: http://www.ed.gov/fund/contract/about/bsp.html.

(b) All contractor employees must undergo personnel security screening if they will be employed for 30 days or more, in accordance with Departmental Directive OM:5-101, “Contractor Employee Personnel Security Screenings,” available at: http://www.ed.gov/fund/contract/about/acs/acsom5101.doc.

(c) The offeror shall indicate the following employee positions it anticipates to employ in performance of this contract and their proposed risk levels based on the guidance provided in Appendix I of Departmental Directive OM:5-101:

High Risk (HR): [Specify HR positions.].

Moderate Risk (MR): [Specify MR positions.].

Low Risk (LR): [Specify LR positions.].

(d) In the event the Department disagrees with a proposed risk level assignment, the issue shall be subject to negotiation. However, if no agreement is reached, the Department's risk level assignment shall be used. The type of screening and the timing of the screening will depend upon the nature of the contractor position, the type of data to be accessed, and the type of information technology (IT) system access required. Personnel security screenings will be commensurate with the risk and magnitude of harm the individual could cause.

(End of Provision)

3452.239-72

Department security requirements.

As prescribed in 3439.702, include the following clause in contracts when the contractor's employees will have access to Department-controlled facilities or space, or when the work (wherever located) would involve the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information:

DEPARTMENT SECURITY REQUIREMENTS (XXXX 2010)

(a) The contractor and its subcontractors shall comply with Department security policy requirements as set forth in the “Bidder's Security Package: Security Requirements for Contractors Doing Business with the Department of Education” at http://www.ed.gov/fund/contract/about/bsp.html.

(b) The following are the contractor employee positions required under this contract and their designated risk levels:

High Risk (HR): [Specify HR positions.]

Moderate Risk (MR): [Specify MR positions.]

Low Risk (LR): [Specify LR positions.]

(c) All contractor employees must undergo personnel security screening if they will be employed for 30 days or more, in accordance with Departmental Directive OM:5-101, “Contractor Employee Personnel Security Screenings.” The type of screening and the timing of the screening will depend upon the nature of the contractor position, the type of data to be accessed, and the type of information technology (IT) system access required. Personnel security screenings will be commensurate with the risk and magnitude of harm the individual could cause.

(d) The contractor shall—

(1) Ensure that all non-U.S. citizen contractor employees are lawful permanent residents of the United States or have appropriate work authorization documents as required by the Department of Homeland Security, Bureau of Immigration and Appeals, to work in the United States.

(2) Ensure that no employees are assigned to high risk designated positions prior to a completed preliminary screening.

(3) Submit all required personnel security forms to the contracting officer's representative (COR) within 24 hours of an assignment to a Department contract and ensure that the forms are complete.

(4) Ensure that no contractor employee is placed in a higher risk position than that for which he or she was previously approved, without the approval of the Contracting Officer or his or her representative, the Department personnel security officer, and the computer security officer.

(5) Ensure that all contractor employees occupying high-risk designated positions submit forms for reinvestigation every five years for the duration of the contract or if there is a break in service to a Department contract of 365 days or more.

(6) Report to the COR all instances of individuals seeking to obtain unauthorized access to any departmental IT system, or sensitive but unclassified and/or Privacy Act protected information.

(7) Report to the COR any information that raises an issue as to whether a contractor employee's eligibility for continued employment or access to Department IT systems, or sensitive but unclassified and/or Privacy Act protected information, promotes the efficiency of the service or violates the public trust.

(8) Withdraw from consideration under the contract any employee receiving an unfavorable adjudication determination.

(9) Officially notify each contractor employee if he or she will no longer work on a Department contract.

(10) Abide by the requirements in Departmental Directive OM:5-101, “Contractor Employee Personnel Security Screenings.”

(e) Further information including definitions of terms used in this clause and a list of required investigative forms for each risk designation are contained in Departmental Directive OM:5-101, “Contractor Employee Personnel Security Start Printed Page 51910Screenings” available at the Web site listed in the first paragraph of this clause.

(f) Failure to comply with the contractor personnel security requirements may result in a termination of the contract for default.

(End of Clause)

3452.239-73

Federal desktop core configuration (FDCC) compatibility.

As prescribed in 3439.703, insert the following clause in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration:

FEDERAL DESKTOP CORE CONFIGURATION (FDCC) COMPATIBILITY (XXXX 2010)

(a) (1) The provider of information technology shall certify applications are fully functional and operate correctly as intended on systems using the Federal desktop core configuration (FDCC). This includes Internet Explorer 7 configured to operate on Windows XP and Windows Vista (in Protected Mode on Vista).

(2) For the Windows XP settings, see: http://csrc.nist.gov/itsec/guidance_WinXP.html,, and for the Windows Vista settings, see: http://csrc.nist.gov/itsec/guidance_vista.html.

(b) The standard installation, operation, maintenance, update, or patching of software shall not alter the configuration settings from the approved FDCC configuration. The information technology should also use the Windows Installer Service for installation to the default “program files” directory and should be able to silently install and uninstall.

(c) Applications designed for normal end users shall run in the standard user context without elevated system administration privileges.

(End of Clause)

3452.242-70

Litigation and claims.

As prescribed in 3442.7001, insert the following clause in all solicitations and resultant cost-reimbursement contracts:

LITIGATION AND CLAIMS (XXXX 2010)

(a) The contractor shall give the contracting officer immediate notice in writing of—

(1) Any legal action, filed against the contractor arising out of the performance of this contract, including any proceeding before any administrative agency or court of law, and also including, but not limited to, the performance of any subcontract hereunder; and

(2) Any claim against the contractor for cost that is allowable under the “allowable cost and payment” clause.

(b) Except as otherwise directed by the contracting officer, the contractor shall immediately furnish the contracting officer copies of all pertinent papers received under that action or claim.

(1) Effect an assignment and subrogation in favor of the Government of all the contractor's rights and claims (except those against the Government) arising out of the action or claim against the contractor; and

(2) Authorize the Government to settle or defend the action or claim and to represent the contractor in, or to take charge of, the action.

(d) If the settlement or defense of an action or claim is undertaken by the Government, the contractor shall furnish all reasonable required assistance. However, if an action against the contractor is not covered by a policy of insurance, the contractor shall notify the contracting officer and proceed with the defense of the action in good faith.

(e) To the extent not in conflict with any applicable policy of insurance, the contractor may, with the contracting officer's approval, settle any such action or claim.

(f)(1) The Government shall not be liable for the expense of defending any action or for any costs resulting from the loss thereof to the extent that the contractor would have been compensated by insurance that was required by law, regulation, contract clause, or other written direction of the contracting officer, but that the contractor failed to secure through its own fault or negligence.

(2) In any event, unless otherwise expressly provided in this contract, the contractor shall not be reimbursed or indemnified by the Government for any cost or expense of liability that the contractor may incur or be subject to by reason of any loss, injury, or damage, to the person or to real or personal property of any third parties as may arise from the performance of this contract.

(End of Clause)

3452.242-71

Notice to the Government of delays.

As prescribed in 3442.7002, insert the following clause in all solicitations and contracts other than purchase orders:

NOTICE TO THE GOVERNMENT OF DELAYS (XXXX 2010)

The contractor shall notify the contracting officer of any actual or potential situation, including but not limited to labor disputes, that delays or threatens to delay the timely performance of work under this contract. The contractor shall immediately give written notice thereof, including all relevant information.

(End of Clause)

3452.242-73

Accessibility of meetings, conferences, and seminars to persons with disabilities.

As prescribed in 3442.7101(b), insert the following clause in all solicitations and contracts:

ACCESSIBILITY OF MEETINGS, CONFERENCES, AND SEMINARS TO PERSONS WITH DISABILITIES (XXXX 2010)

The contractor shall assure that any meeting, conference, or seminar held pursuant to the contract will meet all applicable standards for accessibility to persons with disabilities pursuant to section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) and any implementing regulations of the Department.

(End of Clause)

3452.243-70

Key personnel.

As prescribed in 3443.107, insert a clause substantially the same as the following in all solicitations and resultant cost-reimbursement contracts:

KEY PERSONNEL (XXXX 2010)

(a) The personnel designated as key personnel in this contract are considered to be essential to the work being performed hereunder. Prior to diverting any of the specified individuals to other programs, or otherwise substituting any other personnel for specified personnel, the contractor shall notify the contracting officer reasonably in advance and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the contract effort. No diversion or substitution shall be made by the contractor without written consent of the contracting officer; provided, that the contracting officer may ratify a diversion or substitution in writing and that ratification shall constitute the consent of the contracting officer required by this clause. The contract shall be modified to reflect the addition or deletion of key personnel.

(b) The following personnel have been identified as Key Personnel in the performance of this contract:

Labor Category Name

[Insert category.]

Name

[Insert name.]

(End of Clause)

3452.247-70

Foreign travel.

As prescribed in 3447.701, insert the following clause in all solicitations and resultant cost-reimbursement contracts:

FOREIGN TRAVEL (XXXX 2010)

Foreign travel shall not be undertaken without the prior written approval of the contracting officer. As used in this clause, foreign travel means travel outside the Continental United States, as defined in the Start Printed Page 51911Federal Travel Regulation. Travel to non-foreign areas (including the States of Alaska and Hawaii, the Commonwealths of Puerto Rico, Guam and the Northern Mariana Islands and the territories and possessions of the United States) is considered “foreign travel” for the purposes of this clause.

(End of Clause)

[FR Doc. 2010-20198 Filed 8-20-10; 8:45 am]

BILLING CODE 4000-01-P

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Document Information

Published:: 08/23/2010
Department:: Education Department
Entry Type:: Proposed Rule
Action:: Notice of proposed rulemaking.
Document Number:: 2010-20198
Dates:: We must receive your comments on or before September 22, 2010.
Pages:: 51883-51911 (29 pages)
Docket Numbers:: Docket ID ED-2010-OCFO-0015
RINs:: 1890-AA16: Department of Education Acquisition Regulation
RIN Links:: https://www.federalregister.gov/regulations/1890-AA16/department-of-education-acquisition-regulation
PDF File:: 2010-20198.pdf