[Federal Register Volume 61, Number 200 (Tuesday, October 15, 1996)]
[Rules and Regulations]
[Pages 53645-53677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25427]
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DEPARTMENT OF AGRICULTURE
Procurement and Property Management
48 CFR Parts 401 through 453
RIN 0599-AA00
Agriculture Acquisition Regulation; Revision
AGENCY: Procurement and Property Management, Agriculture.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture is publishing a revised
Agriculture Acquisition Regulation (AGAR) as a final rule. We are
revising the AGAR to reflect changes in acquisition law and regulations
since the AGAR's last major revision in 1988, to update organizational
references throughout the AGAR, and to streamline the AGAR as part of
the President's Regulatory Reform Initiative.
EFFECTIVE DATE: This regulation is effective November 14, 1996.
FOR FURTHER INFORMATION CONTACT: Joseph J. Daragan, (202) 720-5729.
SUPPLEMENTARY INFORMATION:
I. Background
II. Analysis of comments
III. Procedural Requirements
A. Executive Order Nos. 12866 and 12988.
B. Regulatory Flexibility Act.
C. Paperwork Reduction Act.
D. Small Business Regulatory Enforcement Fairness Act.
I. Background
The AGAR implements the Federal Acquisition Regulation (FAR) (48
CFR Ch. 1) where further implementation is needed, and supplements the
FAR when coverage is needed for subject matter not covered by the FAR.
The AGAR is being revised as part of the National Performance Review
(NPR) program to eliminate unnecessary regulations and improve those
that remain in force.
As an initial step in the NPR regulatory review initiative, the
Department of Agriculture (USDA) identified parts of the AGAR which
required updating or streamlining. USDA's review indicated that almost
all parts required revision. Accordingly, USDA has reviewed and made
revisions to substantially all parts of the AGAR. In an Advance Notice
of Proposed Rulemaking (61 FR 7456, February 28, 1996), USDA sought
comments and suggestions from the public concerning what changes should
be made to the AGAR. In a Notice of Proposed Rulemaking (61 FR 37032,
July 16, 1996), USDA announced that the proposed revision of the AGAR
was available for public review and comment during a 60 day comment
period. The proposed rule was made available in hard copy, as an
electronic file, and as a file on the Internet. The Department of
Agriculture received comments on the proposed rule from 4 Departmental
agencies. No comments were received from individuals, private business
concerns (large or small), state or local governments, or other Federal
agencies. In this rulemaking document, the Department of Agriculture is
finalizing the proposed revision to the AGAR, with changes made to
reflect certain comments received as well as recent amendments to the
FAR.
II. Analysis of Comments
As noted, the Department of Agriculture has carefully considered
the comments submitted in response to the Notice of Proposed Rulemaking
and, as discussed below, is modifying a few portions of the rule as
proposed in adopting it as final. The discussion below is focused on
the major areas of comment regarding the proposed rule changes.
One USDA agency commented that it was unclear why the public would
need more than the FAR to understand USDA acquisition policy and
procedures. We believe that an agency supplement to the FAR provides an
accessible source of information about agency acquisition policies
which may have an effect on businesses dealing with USDA. An agency
supplement may also inform the public in general terms about which
official or level of authority may control acquisition decisions within
the agency. Furthermore, FAR subpart 1.3 requires that agency
acquisition regulations be published in the Federal Register when they
have a significant effect beyond the internal operating procedures of
the agency or have a significant cost or administrative impact on
contractors or offerors. The FAR also may require that FAR policies be
implemented in accordance with agency regulations (see FAR 3.301), or
may provide that agencies may deviate from FAR procedures if specified
in agency acquisition regulations (see FAR 5.303(a)). USDA maintains
the AGAR to provide implementing and supplementing regulations in
accordance with these provisions of the FAR.
One USDA agency commented that the AGAR, whenever possible,
designate the contracting officer as the official responsible for
making acquisition determinations and carrying out responsibilities
outlined in the FAR and the AGAR. Where this is not possible, the
agency commented that the head of the contracting activity (HCA) should
be designated as the responsible official with authority to redelegate
to any level. We do not disagree that authority to conduct acquisitions
and to manage contracts should be delegated to the lowest appropriate
level. We have sought to do this throughout the AGAR to the extent
permitted by the FAR. In some cases, we have sought to delegate
authority to an intermediate level between the contracting officer and
the HCA, such as the chief of the contracting office. ``Chief of the
contracting office'' is a term used in the FAR and in the current AGAR,
and may be applied by contracting activities to a level of authority
consistent with their organizational structure. Accordingly, while we
have corrected some references to authority levels which were
inconsistent or confusing, we
[[Page 53646]]
otherwise have not adopted this comment.
Two agencies commented concerning proposed AGAR 419.201-71(d),
which requires small business coordinators (OSDBU coordinators) to
ensure that purchases ``under the simplified acquisition threshold''
are reserved for small business concerns. Both agencies noted that this
paragraph is inconsistent with the FAR, which establishes a small
business reserve for purchases between the $2,500 micropurchase
threshold and the simplified acquisition threshold. We have corrected
AGAR 419.201-71(d) to conform to the FAR.
One agency commented that AGAR 433.103, Protests to the Agency, did
not imply that protests should be filed with the HCA, and recommended
that protests be filed with the contracting officer. AGAR 433.103
establishes USDA's procedure for agency protests. It designates the HCA
as an alternate forum for resolution of agency protests. Contractors
may file protests either with the contracting officer or the HCA.
Accordingly, we have not adopted this comment. However, the comment did
suggest one potential ambiguity in this section. To clarify the protest
procedure, we have added a requirement that the protester provide a
copy of the protest to the contracting officer if the protest is filed
with the HCA.
The following additional changes have been made to the rule. These
changes were made either to incorporate agency suggestions or to
reflect changes in the FAR.:
(a) AGAR 401.602-3(b) is amended to delegate ratification authority
to the Chief of the Contracting Office.
(b) AGAR 403.408, Evaluation of the SF 119, has been removed to
reflect an amendment to the FAR.
(c) AGAR subpart 406.5 has been amended to designate the Chief,
Procurement Policy Division, Procurement and Property Management, as
Departmental Competition Advocate.
(d) AGAR part 413 has been revised to reflect an amendment to the
FAR.
(e) AGAR 416.404-2 has been amended to provide that the head of the
contracting activity may designate a fee determination official for
award fee contracts.
(f) AGAR 416.505 has been added to designate the Chief, Procurement
Policy Division, Procurement and Property Management, as Departmental
Delivery/Task Order Ombudsman.
(g) AGAR subpart 422.70, Compliance with the Immigration and
Nationality Act, has been removed because the issue is now addressed in
FAR subpart 9.4.
(h) AGAR 425.102(b) and 425.202(b), concerning Buy American Act
nonavailability determinations, have been removed because they
duplicate material in the FAR.
(i) AGAR 425.7, Restrictions on Certain Foreign Purchases, has been
removed to reflect an amendment to the FAR.
(j) AGAR 436.203 has been amended to clarify when construction cost
estimates may be disclosed by the contracting officer.
(k) AGAR 449.111 has been amended to allow contracting activities
to establish procedures for review of termination settlements
III. Procedural Requirements
A. Executive Order Nos. 12866 and 12988
A work plan was prepared for this regulation and submitted to the
Office of Management and Budget pursuant to Executive Order No. 12866.
The proposed rule has been determined to be not significant for the
purposes of Executive Order No. 12866. Therefore, the proposed rule has
not been reviewed by the Office of Management and Budget. This rule has
been reviewed in accordance with Executive Order No. 12988.
B. Review Under the Regulatory Flexibility Act
The proposed rule was reviewed under the Regulatory Flexibility
Act, 5 U.S.C. 601-611, which requires preparation of a regulatory
flexibility analysis for any rule which is likely to have significant
economic impact on a substantial number of small entities. The AGAR is
issued to implement or supplement the FAR, and does not materially add
to the impact of the FAR regulations it implements or supplements. USDA
certifies that this proposed rule will not have a significant economic
effect on a substantial number of small entities, and, therefore, no
regulatory flexibility analysis has been prepared. However, comments
from small entities concerning the impact of the proposed rule were
solicited in the Notice of Proposed Rulemaking which announced the
availability of the proposed rule for comment (61 FR 37032, July 16,
1996). No comments from small entities were received.
C. Paperwork Reduction Act
Information collection and recordkeeping required by the AGAR have
been approved by the OMB. OMB control numbers 0505-0010, 0505-0011,
0505-0013, 0505-0014, 0505-0015, and 0505-0016 apply to the AGAR. No
additional information collection or recordkeeping requirements are
imposed on the public by this final rule. Accordingly no OMB clearance
is required by section 350(h) of the Paperwork Reduction Act, 44 U.S.C.
3501, et. seq., or OMB's implementing regulation at 5 CFR Part 1320.
D. Small Business Regulatory Enforcement Fairness Act
This final rule has been submitted to each House of Congress and
the Comptroller General in accordance with the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801, et seq.
List of Subjects in 48 CFR Parts 401 Through 453
Government contracts, Government procurement.
For the reasons set out in the preamble, 48 CFR chapter 4 (parts
401 through 453) is revised as set forth below:
W.R. Ashworth,
Director, Procurement and Property Management.
Agriculture Acquisition Regulation
SUBCHAPTER A--GENERAL
Part 401--Agriculture Acquisition Regulation System
Part 402--Definitions of Words and Terms
Part 403--Improper Business Practices and Personal Conflicts of
Interest
Part 404--Administrative Matters
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
Part 405--Publicizing Contract Actions
Part 406--Competition Requirements
Part 407--Acquisition Planning
Part 408--Required Sources of Supplies and Services
Part 409--Contractor Qualifications
Part 410--[Reserved]
Part 411--Describing Agency Needs
Part 412--Acquisition of Commercial Items
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
Part 413--Simplified Acquisition Procedures
Part 414--Sealed Bidding
Part 415--Contracting by Negotiation
Part 416--Types of Contracts
Part 417--Special Contracting Methods
Part 418--[Reserved]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
Part 419--Small Business Programs
Part 420--[Reserved]
Part 421--[Reserved]
Part 422--Application of Labor Laws to Government Acquisitions
Part 423--Environment, Conservation, Occupational Safety, and Drug-
Free Workplace
Part 424--Protection of Privacy and Freedom of Information
Part 425--Foreign Acquisition
Part 426--[Reserved]
[[Page 53647]]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
Part 427--Patents, Data, and Copyrights
Part 428--Bonds and Insurance
Part 429--[Reserved]
Part 430--Cost Accounting Standards Administration
Part 431--Contract Cost Principles and Procedures
Part 432--Contract Financing
Part 433--Protests, Disputes and Appeals
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
Part 434--Major System Acquisition
Part 435--Research and Development Contracting
Part 436--Construction and Architect-Engineer Contracts
Part 437--Service Contracting
Part 438--[Reserved]
Part 439--[Reserved]
Part 440--[Reserved]
Part 441--Acquisition of Utility Services
SUBCHAPTER G--CONTRACT MANAGEMENT
Part 442--Contract Administration
Part 443--[Reserved]
Part 444--[Reserved]
Part 445--Government Property
Part 446--Quality Assurance
Part 447--Transportation
Part 448--[Reserved]
Part 449--Termination of Contracts
Part 450--Extraordinary Contractual Actions
Part 451--[Reserved]
SUBCHAPTER H--CLAUSES AND FORMS
Part 452--Solicitation Provisions and Contract Clauses
Part 453--Forms
SUBCHAPTER A--GENERAL
PART 401--AGRICULTURE ACQUISITION REGULATION SYSTEM
Sec.
401.000 Scope of part.
Subpart 401.1--Purpose, Authority, Issuance
401.101 Purpose.
401.103 Authority.
401.104 Applicability.
401.105 Issuance.
401.105-1 Publication and code arrangement.
401.105-2 Arrangement of regulations.
401.105-3 Copies.
401.106 OMB approval under the Paperwork Reduction Act.
Subpart 401.2--Administration
401.201 Maintenance of the FAR.
401.201-1 The two councils.
Subpart 401.3--Agency Acquisition Regulations
401.301 Policy.
401.304 Agency control and compliance procedures.
401.370 Exclusions.
401.371 AGAR Advisories.
401.372 Departmental directives.
Subpart 401.4--Deviations From the FAR and AGAR
401.402 Policy.
401.403 Individual deviations.
401.404 Class deviations.
Subpart 401.6--Contracting Authority and Responsibilities
401.601 General.
401.602 Contracting officers.
401.602-3 Ratification of unauthorized commitments.
401.603 Selection, appointment, and termination of appointment.
401.603-1 General.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
401.000 Scope of part.
This part presents basic policies and general information about the
Department of Agriculture's (USDA) Acquisition Regulation, subsequently
referred to as the AGAR. The AGAR is an integral part of the Federal
Acquisition Regulations System.
Subpart 401.1--Purpose, Authority, Issuance
401.101 Purpose.
(a) The AGAR provides for the codification and publication of
uniform policies and procedures for acquisitions by contracting
activities within USDA.
(b) The purpose of the AGAR is to implement the Federal Acquisition
Regulation (FAR), where further implementation is needed, and to
supplement the FAR when coverage is needed for subject matter not
covered in the FAR. The AGAR is not by itself a complete document, as
it must be used in conjunction with the FAR.
401.103 Authority.
The AGAR and amendments thereto are issued under 5 U.S.C. 301 and
40 U.S.C. 486(c). The Senior Procurement Executive (SPE) has the
delegated authority to promulgate Departmental acquisition regulations.
401.104 Applicability.
The FAR and AGAR apply to all USDA acquisitions of supplies and
services (including construction) which obligate appropriated funds,
unless otherwise specified in this chapter or excepted by law.
401.105 Issuance.
401.105-1 Publication and code arrangement.
(a) The AGAR is codified in the Code of Federal Regulations (CFR)
as Chapter 4 of Title 48, Federal Acquisition Regulations System, to
implement and supplement Chapter 1 which constitutes the FAR. Parts 400
through 499 have been assigned to USDA by the Office of the Federal
Register.
(b) The AGAR and its subsequent changes are published in:
(1) Daily issues of the Federal Register,
(2) Cumulative form in the CFR, and
(3) Loose-leaf form for distribution within USDA.
(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C.
553, provides an exception from the standard public rulemaking
procedures to the extent that the rule involves a matter relating to
agency management or personnel or to public property, loans, grants,
benefits, or contracts. OFPP Policy Letter 83-2 requires rulemaking for
substantive acquisition rules but allows discretion in the matter for
other than significant issues meeting the stated criteria. The AGAR has
been promulgated and may be revised from time to time in accordance
with the rulemaking procedures of the Administrative Procedure Act and
OFPP Policy Letter 83-2.
401.105-2 Arrangement of regulations.
AGAR coverage parallels the FAR in format, arrangement, and
numbering system. However, subdivisions below the section and
subsection levels may not always correlate directly to FAR designated
paragraphs and subparagraphs.
401.105-3 Copies.
Copies of the AGAR published in CFR form may be purchased from the
Superintendent of Documents, Government Printing Office, Washington,
D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.
401.106 OMB approval under the Paperwork Reduction Act.
The following OMB control numbers apply to USDA solicitations and
specified information collections within the AGAR:
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OMB Control
AGAR segment No.
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411.170.................................................... 0505-0014
415.4...................................................... 0505-0013
436.575.................................................... 0505-0011
437.110.................................................... 0505-0015
437.270.................................................... 0505-0016
452.211-1.................................................. 0505-0014
452.215-71................................................. 0505-0013
452.236-75................................................. 0505-0011
452.237-74................................................. 0505-0015
452.237-76................................................. 0505-0016
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[[Page 53648]]
Subpart 401.2--Administration
401.201 Maintenance of the FAR.
401.201-1 The two councils.
(a) USDA's representative on the Civilian Agency Acquisition
Council is designated by the SPE.
(b) The Procurement Policy Division will coordinate proposed FAR
revisions with interested contracting activities.
Subpart 401.3--Agency Acquisition Regulations
401.301 Policy.
(a) The SPE, subject to the authorities in 401.103 and FAR 1.301,
may issue and publish Departmental regulations, that together with the
FAR, constitute Department-wide policies, procedures, solicitation
provisions, and contract clauses governing the contracting process or
otherwise controlling the relationship between USDA (including any of
its contracting activities) and contractors or prospective contractors.
(b) Each designated head of a contracting activity (HCA) is
authorized to issue or authorize the issuance of, at any organizational
level, internal guidance which does not have a significant effect
beyond the internal operating procedures of the activity, or a
significant cost or administrative impact on offerors or contractors.
Internal guidance issued by contracting activities will not be
published in the Federal Register. HCA's shall ensure that the
guidance, procedures, or instructions issued--
(1) Are consistent with the policies and procedures contained in
this chapter;
(2) Follow the format, arrangement, and numbering system of this
chapter to the extent practicable;
(3) Contain no material which duplicates, paraphrases, or is
inconsistent with this chapter; and
(4) Are numbered and identified by use of alphabetical suffixes to
the chapter number as follows:
4A [Reserved].
4B Agricultural Research Service.
4C Farm Service Agency.
4D Rural Development (mission area).
4E Food Safety and Inspection Service.
4F [Reserved].
4G Forest Service.
4H [Reserved].
4I Natural Resources Conservation Service.
4J [Reserved].
4K Food and Consumer Service.
4L Animal and Plant Health Inspection Service.
4M [Reserved].
4N Office of Operations.
4O [Reserved].
4P [Reserved].
4R Office of Inspector General.
4S [Reserved].
401.304 Agency control and compliance procedures.
(a) The AGAR System is under the direct oversight and control of
the SPE, who is responsible for review and issuance of all Department-
wide acquisition regulations published in the Federal Register to
assure compliance with FAR part 1.
(b) The SPE is also responsible for review and issuance of
unpublished, Department-wide internal guidance under the AGAR System.
(c) HCA's are responsible for establishment and implementation of
formal procedures for oversight and control of unpublished internal
guidance issued within the contracting activity to implement FAR or
AGAR requirements. These procedures shall be subject to the review and
approval by the SPE.
(d) The SPE is responsible for evaluating coverage under the AGAR
System to determine applicability to other agencies and for
recommending coverage to the FAR Secretariat for inclusion in the FAR.
(e) Recommendations for revision of existing FAR coverage or new
FAR coverage shall be submitted by the HCA to the SPE for further
action.
401.370 Exclusions.
Subject to the policies of FAR subpart 1.3, certain USDA
acquisition policies and procedures may be excluded from the AGAR under
appropriately justified circumstances, such as:
(a) Subject matter which is effective for a period less than 12
months.
(b) Subject matter which is instituted on an experimental basis for
a reasonable period.
(c) Acquisition procedures instituted on an interim basis to comply
with the requirements of statute, regulation, Executive Order, OMB
Circular, or OFPP Policy Letter.
401.371 AGAR Advisories.
The SPE may issue AGAR Advisories, consistent with the policies of
the FAR and the AGAR, for the following purposes:
(a) To communicate Department-wide policy and/or procedural
guidance to contracting activities;
(b) To delegate to procurement officials authority to make
determinations or to take action to implement the policies of the FAR
or the AGAR; and,
(c) To establish internal policy and procedures on an interim
basis, prior to incorporation in the AGAR or in a Departmental
Directive.
401.372 Departmental directives.
Subject to the policies of FAR 1.3, USDA from time to time may
issue internal directives to establish procedures, standards, guidance,
or methods of performing duties, functions, or operations. Such
directives include Departmental Regulations (DR's), Departmental
Notices, and Secretary's Memoranda.
Subpart 401.4--Deviations from the FAR and AGAR
401.402 Policy.
Requests for authority to deviate from the provisions of the FAR or
the AGAR shall be submitted in writing as far in advance as the
exigencies of the situation will permit. Each request for deviation
shall contain the following:
(a) A statement of the deviation desired, including identification
of the specific paragraph number(s) of the FAR and AGAR;
(b) The reason why the deviation is considered necessary or would
be in the best interest of the Government;
(c) If applicable, the name of the contractor and identification of
the contract affected;
(d) A statement as to whether the deviation has been requested
previously and, if so, circumstances of the previous request;
(e) A description of the intended effect of the deviation;
(f) A statement of the period of time for which the deviation is
needed; and
(g) Any pertinent background information which will contribute to a
full understanding of the desired deviation.
401.403 Individual deviations.
In individual cases, deviations from either the FAR or the AGAR
will be authorized only when essential to effect a necessary
acquisition or where special circumstances make such deviations clearly
in the best interest of the Government. Except for cost principles,
HCA's may approve individual deviations from the AGAR, after
coordinating with the General Counsel and the SPE. No deviations from
the FAR or AGAR may be authorized at the contracting office level. A
copy of each deviation and its supporting documentation shall be
provided to the SPE. Deviations from the FAR shall not be made unless
such action is authorized by the SPE after consultation with the Office
of the General Counsel and any other appropriate office, on the basis
of a written justification stating clearly the special circumstances
involved.
[[Page 53649]]
401.404 Class deviations.
Where deviations from the FAR or AGAR are considered necessary for
classes of contracts, requests for authority to deviate shall be
submitted in writing to the SPE for approval. The SPE may authorize
class deviations from the FAR without consulting the Chairperson of the
Civilian Agency Acquisition Council where urgency precludes
consultation. The SPE shall subsequently inform the Chairperson of the
Civilian Agency Acquisition Council of the deviation including the
circumstances under which it was required.
Subpart 401.6--Contracting Authority and Responsibilities
401.601 General.
(a) The authority and responsibility vested in the Secretary to
manage USDA's acquisition function is delegated through the Assistant
Secretary for Administration to the SPE. This broad authority includes,
but is not limited to, the following responsibilities:
(1) Prescribing and publishing Departmental acquisition policies,
regulations, and procedures.
(2) Taking any necessary actions consistent with policies,
regulations, and procedures with respect to purchases, contracts,
leases, and other transactions.
(3) Designating contracting officers.
(4) Establishing clear lines of contracting authority.
(5) Evaluating and monitoring the performance of USDA's acquisition
system.
(6) Managing and enhancing career development of the contracting
work force.
(7) Participating in the development of Government-wide acquisition
policies, regulations, and standards; and determining specific areas
where government-wide performance standards should be established and
applied.
(8) Determining areas of Department-unique standards and developing
unique Department-wide standards.
(9) Certifying to the Secretary that the acquisition system meets
approved standards.
(b) The SPE may delegate contracting authority to the Heads of
Contracting Activities (HCA's) and the responsibility to manage their
acquisition function.
(c) Unless prohibited by the FAR, the AGAR, or by other applicable
statutes and regulations, the SPE may redelegate to HCA's the authority
to make determinations as the agency head in order to implement the
policies and procedures of the FAR. Such delegations shall be in
writing, but need not be published.
(d) Unless prohibited by the FAR, the AGAR, or by other applicable
statutes or regulations, each HCA may designate one individual from the
contracting activity to carry out the functions of the HCA (HCAD). The
HCAD may exercise all authority delegated to the HCA.
401.602 Contracting officers.
401.602-3 Ratification of unauthorized commitments.
(a) Definitions. ``Ratification,'' as used in this section, means
the signed, documented action taken by an authorized official to
approve and sanction a previously unauthorized commitment.
``Unauthorized commitment,'' as used in this section, means an
agreement made by a Government representative who lacked the authority
to enter into a contract on behalf of the Government.
(b) Policy. The HCA may delegate ratification authority to the
chief of the contracting office.
(c) Procedure. Whenever an official of the cognizant contracting
activity who is authorized to ratify unauthorized commitments learns
that a person or firm has assumed work as a result of an unauthorized
commitment, that official shall take the following actions:
(1) Immediately inform any person who is performing work as a
result of an unauthorized commitment that the work is being performed
at that person's risk;
(2) Inform the individual who made the unauthorized commitment of
the seriousness of the act and the possible consequences;
(3) Ensure that the individual who made the unauthorized commitment
furnishes all records and documents concerning the commitment and a
complete, written statement of facts, including, but not limited to: a
statement as to why a contracting officer was not used; why the vendor
was selected and a list of sources considered; a description of work to
be performed or products to be furnished; the estimated or agreed
price; whether an appropriation is available for the work; and whether
performance has begun. Under exceptional circumstances, such as when
the individual who made the unauthorized commitment is no longer
available to attest to the circumstances of the unauthorized
commitment, the ratifying official may waive these requirements; and
(4) Decide whether ratification is proper and proceed as follows:
(i) If ratification is not justifiable, provide the cognizant
program office, contracting office, and the unauthorized contractor
with an explanation of the decision not to ratify.
(ii) If ratification appears adequately justified, ratify the
action and retain or assign the contract to a successor contracting
officer if necessary.
(iii) Maintain related approval, decisional, and background
documents in the contract file for audit purposes.
(iv) Notify the cognizant program supervisor or line officer about
the final disposition of the case; the notification may include a
recommendation that the unauthorized commitment should be further
considered a violation of USDA's employee conduct regulations.
401.603 Selection, appointment, and termination of appointment.
401.603-1 General.
An HCA may delegate contracting authority to the extent authorized
by the SPE in a general delegation of acquisition authority, by
appointing qualified individuals as contracting officers, in accordance
with the USDA Contracting Officer Warrant System, Departmental
Regulation 5001-1.
PART 402--DEFINITIONS OF WORDS AND TERMS
Sec.
402.000 Scope of part.
Subpart 402.1--Definitions
402.101 Definitions.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
402.000 Scope of part.
As used throughout this chapter, the following words and terms are
used as defined in this subpart unless the context in which they are
used clearly requires a different meaning, or a different definition is
prescribed for a particular part or portion of a part.
Subpart 402.1--Definitions
402.101 Definitions.
Acquisition official means an individual who has been delegated
authority to manage or to exercise acquisition functions and
responsibilities.
Agency head or Head of the Agency means the Secretary of
Agriculture, Deputy Secretary, or the Assistant Secretary for
Administration.
Head of the contracting activity (HCA) means the official who has
overall responsibility for managing the contracting activity (i.e.,
Chief, Forest Service; Administrator, Agricultural Research Service;
etc.), or the individual designated by such an official to carry out
the functions of the HCA.
[[Page 53650]]
Senior Procurement Executive (SPE) means the agency official
appointed as such by the head of the agency pursuant to Executive Order
12931. The Director, Procurement and Property Management, Policy
Analysis and Coordination Center, has been designated as the USDA SPE.
PART 403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 403.1--Safeguards
Sec.
403.101 Standards of conduct.
403.101-3 Agency regulations.
403.104 Procurement integrity.
403.104-5 Disclosure, protection, and marking of proprietary and
source selection information.
403.104-11 Processing violations or possible violations.
Subpart 403.2--Contractor Gratuities to Government Personnel
403.203 Reporting suspected violations of the gratuities clause.
403.204 Treatment of violations.
Subpart 403.3--Reports of Suspected Antitrust Violations
403.303 Reporting suspected antitrust violations.
Subpart 403.4--Contingent Fees
403.409 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 403.5--Other Improper Business Practices
403.502 Subcontractor kickbacks.
Subpart 403.6--Contracts With Government Employees or Organizations
Owned or Controlled by them
403.602 Exceptions.
403.603 Responsibilities of the contracting officer.
Subpart 403.8--Limitation on the Payment of Funds to Influence Federal
Transactions
403.806 Processing suspected violations
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 403.1--Safeguards
403.101 Standards of conduct.
403.101-3 Agency regulations.
(a) The standards of conduct for USDA procurement officials are the
uniform standards established by the Office of Government Ethics in 5
CFR Part 2635, Standards of Ethical Conduct for Employees of the
Executive Branch, and FAR 3.104, Procurement integrity.
(b) Procurement officials and other employees who require advice
concerning the application of standards of conduct to any acquisition
issue shall obtain ethics advisory opinions from ethics advisory
officials in their agency personnel offices.
403.104 Procurement integrity.
403.104-5 Disclosure, protection, and marking of proprietary and
source selection information.
For contracts and contract modifications in excess of $100,000, the
contracting officer shall assure that the information listed in FAR
3.104-5(d)(2) is maintained in the contract file.
403.104-11 Processing violations or possible violations.
(a) The contracting officer shall forward information concerning
any violation or possible violation of the Procurement Integrity Act
(41 U.S.C. 423) to the chief of the contracting office.
(b) Heads of contracting activities (HCA's) or their designees who
receive information concerning any violation or possible violation of
the Act shall take action in accordance with FAR 3.104-11(b)(1), (2),
(3), or (4).
Subpart 403.2--Contractor Gratuities to Government Personnel
403.203 Reporting suspected violations of the gratuities clause.
A suspected violation of the contract clause, FAR 52.203-3,
Gratuities, shall be reported immediately to the cognizant contracting
officer in writing, stating the circumstances surrounding the
incident(s), the date(s), and names of all parties involved. The
contracting officer shall review the report for completeness, add any
additional information deemed necessary and a recommendation for
action, and submit the report to the HCA.
403.204 Treatment of violations.
The HCA shall review the report and consult with the Offices of
General Counsel and Inspector General to determine whether further
action should be pursued. If it is found that the facts and
circumstances warrant further action, the HCA shall give the contractor
a formal written notice which summarizes the reported violation and
affords the contractor the opportunity to make a written or oral
response within a reasonable, specified period after receipt of the
notice. The notice shall be sent by certified mail with return receipt
requested. Oral presentations shall follow the procedures outlined in
FAR 3.204(b). The HCA shall furnish copies of any adverse determination
to the contracting officer and the Department Debarring Officer for
their subsequent considerations under FAR 3.204(c)(1) and (2),
respectively.
Subpart 403.3--Reports of Suspected Antitrust Violations
403.303 Reporting suspected antitrust violations.
Contracting officers shall report the circumstances of suspected
violations of antitrust laws to the Office of Inspector General in
accordance with procedures in Departmental Regulations (1700 series).
Subpart 403.4--Contingent Fees
403.409 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) A suspected misrepresentation or violation of the Covenant
Against Contingent Fees shall be documented in writing by the
contracting officer and reported immediately to the chief of the
contracting office. The chief of the contracting office shall determine
if a violation has occurred and report any violation to the Office of
Inspector General. The chief of the contracting office shall take
action in accordance with FAR 3.409(b).
(b) If the chief of the contracting office decides to refer the
case to the Department of Justice, it should be referred through the
Office of Inspector General with a copy of the report and referral
submitted through the HCA to the Senior Procurement Executive.
Subpart 403.5--Other Improper Business Practices
403.502 Subcontractor kickbacks.
Contracting officers shall report the circumstances of suspected
violations of the Anti-Kickback Act (41 U.S.C. 51-54) to the Office of
Inspector General in accordance with procedures in Departmental
Regulations (1700 series).
Subpart 403.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
403.602 Exceptions.
The HCA is authorized to accept a contract from the policy in FAR
3.601.
403.603 Responsibilities of the contracting officer.
The contracting officer, when requesting authorization under
403.602, shall prepare a written determination and findings for the
signature of the HCA. The determination shall document compliance with
FAR 3.603, specifying the compelling reason(s) for award, and shall be
placed in the contract file.
[[Page 53651]]
Subpart 403.8--Limitation on the Payment of Funds to Influence
Federal Transactions
403.806 Processing suspected violations.
Suspected violations of the requirements of 31 U.S.C. 1352 shall be
referred to the Office of Inspector General in accordance with
procedures in Departmental Regulations (1700 series).
PART 404--ADMINISTRATIVE MATTERS
Subpart 404.4--Safeguarding Classified Information Within Industry
Sec.
404.403 Responsibilities of contracting officers.
Subpart 404.6--Contract Reporting
404.601 Record requirements.
404.602 Federal Procurement Data System.
Subpart 404.8--Contract Files
404.870 Document numbering system.
404.870-1 Purchase order/delivery order numbering system.
404.870-2 Contract numbering system.
Subpart 404.70--Precontract Notices
404.7001 Solicitation provision.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 404.4--Safeguarding Classified Information Within Industry
404.403 Responsibilities of contracting officers.
When a proposed solicitation is likely to require access to
information classified by USDA, the contracting officer shall consult
with the Director of Human Resources Management within the Policy
Analysis and Coordination Center of the Office of Assistant Secretary
for Administration, regarding the procedures that must be followed.
Subpart 404.6--Contract Reporting
404.601 Record requirements.
The Senior Procurement Executive (SPE) manages an automated
procurement reporting system for USDA. This system provides the Federal
Procurement Data System with all required contracting information.
404.602 Federal Procurement Data System.
Contracting activities shall report contract actions into the USDA
Procurement Reporting System in accordance with the instructions issued
or distributed by the SPE.
Subpart 404.8--Contract Files
404.870 Document numbering system.
404.870-1 Purchase order/delivery order numbering system.
USDA purchasing activities shall number their purchase/delivery
orders in accordance with NFC Procedures Manual, ``Purchase Orders,''
Title II, Section 5.1.
404.870-2 Contract numbering system.
Contracting offices shall assign an 8 to 12-digit number to all
contracts. Contract numbers will be divided into four data elements and
formatted as follows:
(1)--------------------------------------(2)-----(3)-----------------(4)
Transaction Ordering Fiscal Control
Code Office Year Number
------------------------------------------------------------------------
XX XXXX X X to XXXXX
------------------------------------------------------------------------
(a) Transaction code. This two-position code identifies the
contract as being one of the following types:
(1) Code 50--construction contract;
(2) Code 51--[Reserved]
(3) Code 52--tree planting/thinning contract;
(4) Code 53--service contract;
(5) Code 54--supply contract;
(6) Code 55--aircraft rental (for fire-fighting purposes only)
contract;
(7) Code 56--personal equipment rental (rental of vehicular
equipment for firefighting purposes only) contract;
(8) Code 57--leasehold interest in real property contract.
(b) Ordering office. This four-position code corresponds to the
last four characters of the contracting office's GSA assigned
FEDSTRIP requisitioner number.
(c) Fiscal year. This one-position code corresponds to the last
digit of the fiscal year in which the contract becomes effective.
(d) Control number. This up-to-five position code (from one to
five characters may be used) will be assigned by the contracting
office. While contracts will generally be numbered consecutively (1
through 99999), contracting offices may assign codes in any manner
of their choosing. Codes may not be repeated, however, unless one of
the preceding data elements (transaction code, ordering office, or
fiscal year) changes. Alpha characters as well as numerals may be
used in any one or more of the five positions.
Subpart 404.70--Precontract Notices
404.7001 Solicitation Provision.
The contracting officer shall insert the provision at 452.204-70,
Inquiries, in all solicitations.
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
PART 405--PUBLICIZING CONTRACT ACTIONS
Subpart 405.3--Synopses of Contract Awards
Sec.
405.303 Announcement of contract awards.
Subpart 405.4--Release of Information
405.403 Requests from Members of Congress.
405.404 Release of long-range acquisition estimates.
405.404-1 Release procedures.
Subpart 405.5--Paid Advertisements
405.502 Authority.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 405.3--Synopses of Contract Awards
405.303 Announcement of contract awards.
Contracting officers shall make information available on any
contract award with an estimated total value over $1 million (including
options) to their agency congressional liaison office in sufficient
time for the agency to announce it by 5:00 p.m. Washington, DC time on
the day of award. The agency congressional liaison office shall,
concurrent with the public announcement, provide the award announcement
information to the USDA Congressional Relations Office.
Subpart 405.4--Release of Information
405.403 Requests from Members of Congress.
The head of the contracting activity (HCA) is the agency head
designee pursuant to FAR 5.403(a).
405.404 Release of long-range acquisition estimates.
405.404-1 Release procedures.
(a) HCA's shall establish written procedures to control the release
of long-range acquisition estimates, as authorized under FAR 5.404-1.
(b) Classified information shall not be released without the
approval of the USDA Security Officer, Policy Analysis and Coordination
Center--Human Resources Management. Departmental Manual and Regulation
(3400 series) contain guidance on classified information.
Subpart 405.5--Paid Advertisements
405.502 Authority.
(a) The authority vested in the agency head to authorize
publication of paid advertisements in newspapers (44
[[Page 53652]]
U.S.C. 3702) is delegated, with power of redelegation, to HCA's. HCA
redelegation of this authority shall be in writing.
(b) Policies and procedures regarding prior authorization required
for media other than newspapers are contained in USDA Departmental
Regulations 1400 series.
Part 406--Competition Requirements
Subpart 406.2--Full and Open Competition After Exclusion of Sources
Sec.
406.202 Establishing or maintaining alternative sources.
Subpart 406.3--Other Than Full and Open Competition
406.302 Circumstances permitting other than full and open
competition.
406.302-70 Otherwise authorized by law.
Subpart 406.5--Competition Advocates
406.501 Requirements.
Authority: 5 U.S.C. and 40 U.S.C. 486(c).
Subpart 406.2--Full and Open Competition After Exclusion of Sources
406.202 Establishing or maintaining alternative sources.
The Senior Procurement Executive is authorized to make
determinations pursuant to FAR 6.202(a) and sign the determination and
findings required by FAR 6.202(b).
Subpart 406.3--Other than Full and Open Competition
406.302 Circumstances permitting other than full and open competition.
406.302-70 Otherwise authorized by law.
(a) Authority. Section 1472 of the National Agricultural Research,
Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act)
authorizes the Secretary of Agriculture to award contracts, without
competition, to further research, extension, or teaching programs in
the food and agricultural sciences.
(b) Limitations. The use of this authority is limited to those
instances where it can be determined that contracting without full and
open competition is in the best interest of the Government and
necessary to the accomplishment of the research, extension, or teaching
program. Therefore:
(1) Contracts under the authority of the Act shall be awarded on a
competitive basis to the maximum practicable extent.
(2) When full and open competition is not deemed appropriate, the
contracting officer shall make a written justification on a case-by-
case basis in accordance with procedures in FAR 6.303 and 6.304.
Subpart 406.5--Competition Advocates
406.501 Requirements.
(a) The Chief, Procurement Policy Division, Procurement and
Property Management, Policy Analysis and Coordination Center, has been
designated as the Competition Advocate for USDA.
(b) Each HCA shall designate a competition advocate for the
contracting activity.
PART 407--ACQUISITION PLANNING
Subpart 407.1--Acquisition Plans
Sec.
407.103 Agency-head responsibilities.
407.170 Advance acquisition plans.
Subpart 407.3--Contractor Versus Government Performance
407.302 General.
Subpart 407.5--Inherently Governmental Functions
407.503 Policy.
Authority: 5 U.S.C. 301 and 40 U.S.C.
Subpart 407.1--Acquisition Plans
407.103 Agency-head responsibilities.
Heads of Contracting Activities (HCA's) shall develop procedures to
comply with FAR 7.103.
407.170 Advance acquisition plans.
Each HCA shall implement an advance acquisition planning system in
accordance with procedures in Departmental Directives (5000 series).
Subpart 407.3--Contractor Versus Government Performance
407.302 General.
The requirements of FAR subpart 7.3 and OMB Circular A-76 are
implemented by Departmental Directives (2100 series).
Subpart 407.5--Inherently Governmental Functions
407.503 Policy.
(a) HCA's shall establish procedures to ensure that requesting
activities provide the written determination required by FAR 7.503(e),
when submitting requests for procurement of services.
(b) In the event of a disagreement as to whether the functions to
be performed are inherently governmental, the HCA may refer the matter
to the Senior Procurement Executive (SPE) for resolution. When
submitting disagreements to the SPE for resolution the HCA shall
provide a summary of the areas of disagreement, supported by the
following:
(1) The HCA's assessment of whether the services are ``inherently
governmental'';
(2) The basis for that assessment (include references to the
definition and policy in FAR subpart 7.5 and/or Office of Federal
Procurement Policy letter 92-1);
(3) A copy of the statement of work; and,
(4) The requesting activity written determination in accordance
with FAR 7.503(e).
(c) Such disagreements shall be resolved prior to issuance of the
solicitation.
PART 408--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 408.4--Federal Supply Schedules
Sec.
408.404 Using schedules.
408.404-3 Requests for waivers.
Subpart 408.7--Acquisition From Nonprofit Agencies Employing People Who
Are Blind or Severely Handicapped
408.701 Definitions.
408.705 Procedures.
408.705-2 Direct order process.
408.705-3 Allocation process.
408.705-4 Compliance with orders.
408.706 Purchase exemptions.
408.707 Prices.
408.711 Quality complaints.
408.712 Specification changes.
408.714 Communications with the central nonprofit agencies and the
Committee.
Subpart 408.8--Acquisition of Printing and Related Supplies
408.802 Policy.
Subpart 408.11--Leasing of Motor Vehicles
408.1103 Contract requirements.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 408.4--Federal Supply Schedules
408.404 Using schedules.
408.404-3 Requests for waivers.
A copy of the request for a waiver and the approval shall be placed
in the contract file to support the acquisition of items off schedule.
Subpart 408.7--Acquisition From Nonprofit Agencies Employing People
Who Are Blind or Severely Handicapped
408.701 Definitions.
Committee Member is the Presidential appointee representing USDA as
a member of the Committee for Purchase
[[Page 53653]]
from People Who Are Blind or Severely Disabled.
Organization head is the head of the contracting activity (HCA),
the head of a USDA corporation (as described in 31 U.S.C. 9101), or the
head of a USDA staff office.
408.705 Procedures.
(a) The organization head shall appoint one person as Javits-
Wagner-O'Day Act (JWOD) Advocate to represent the organization and to
coordinate the organization's actions with the Committee Member.
(b) JWOD advocates may represent more than one organization.
Advocates need not be acquisition officials.
(c) The organization head shall issue and maintain an action plan
to promote and enhance the organization's acquisitions from JWOD
participating nonprofit agencies.
(d) The action plan shall:
(1) Announce the organization's support for the JWOD Act;
(2) Establish a promotion program for the products and services
provided by the JWOD participating nonprofit agencies;
(3) Provide for the JWOD Advocate's role in acquisition planning;
(4) Establish measurable program goals for growth or other
accomplishment in the organization's JWOD program actions; and
(5) Establish an awards program for successful participation in the
JWOD program.
408.705-2 Direct order process.
(a) The chief of a contracting office may apply to a central
nonprofit agency for authorization to order specific supplies or
services directly from a JWOD participating nonprofit agency.
(b) A copy of the application should be provided to the JWOD
Advocate who will inform the USDA Committee Member.
408.705-3 Allocation process.
(a) The chief of a contracting office may apply to a central
nonprofit agency for a production allocation of specific supplies or
services to a JWOD participating nonprofit agency.
(b) A copy of the application should be provided to the JWOD
Advocate who will inform the USDA Committee Member.
408.705-4 Compliance with orders.
Prior to attempting to resolve a failure to perform by a
participating nonprofit agency with the Committee, the chief of the
contracting office should provide advance notice to the JWOD Advocate
who will inform the USDA Committee Member.
408.706 Purchase exemptions.
Prior to applying to the Committee for a purchase exemption, the
chief of the contracting office should provide advance notice to the
JWOD Advocate who will inform the USDA Committee Member.
408.707 Prices.
Prior to applying for a price revision, the chief of the
contracting office should provide advance notice to the JWOD Advocate
who will inform the USDA Committee Member.
408.711 Quality complaints.
Prior to attempting to resolve a complaint regarding the quality of
goods or services provided by participating nonprofit agency with the
Committee, the chief of the contracting office should provide advance
notice to the JWOD Advocate who will inform the USDA Committee Member.
408.712 Specification changes.
Prior to providing 90-days advance notification to the Committee on
actions that affect supplies and services on the Procurement List, the
chief of the contracting office should provide advance notice to the
JWOD Advocate who will inform the USDA Committee Member.
408.714 Communications with the central nonprofit agencies and the
Committee.
Any matter requiring referral to the Committee shall be provided to
the JWOD Advocate who will coordinate the matter with the Committee
Member.
Subpart 408.8--Acquisition of Printing and Related Supplies
408.802 Policy.
(a) The Director, Office of Communications (OC) has been designated
as the central printing authority in USDA, with the authority to
represent the USDA before the Joint Committee on Printing (JCP), the
Government Printing Office, and other Federal and State agencies on all
matters related to printing.
(b) Prior to contracting for any of the items defined in FAR 8.801,
the contracting officer shall verify that the requisite approval has
been received by the publication liaison officer or requisitioner.
(c) The approval from OC or the approval authority designated by OC
shall be maintained in the contract file.
Subpart 408.11--Leasing of Motor Vehicles
408.1103 Contract requirements.
If the requirement includes the need for the vendor to provide
operational maintenance such as oil and other fluid changes or
replenishment, the contracting officer shall include in the contract:
(1) A requirement for fluids containing the maximum available
amounts of recovered materials; and
(2) A preference for either retreaded tires meeting the Federal
retread specifications or retreading services for the tires on the
vehicle.
PART 409--CONTRACTOR QUALIFICATIONS
Subpart 409.4--Debarment, Suspension and Ineligibility
Sec.
409.403 Definitions.
409.404 List of parties excluded from Federal procurement and
nonprocurement programs.
409.405 Effect of listing.
409.405-1 Continuation of current contracts.
409.405-2 Restrictions on subcontracting.
409.406 Debarment.
409.406-3 Procedures.
409.407 Suspension.
409.407-3 Procedures.
409.470 Appeals.
Subpart 409.5--Organizational and Consultant Conflicts of Interest
409.503 Waiver.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 409.4--Debarment, Suspension and Ineligibility
409.403 Definitions.
Debarring official. The Senior Procurement Executive (SPE) is
designated as the debarring official (Department Debarring Officer)
pursuant to the Secretary's delegations of authority in 7 CFR 2.24.
However, for contracts awarded under the School Lunch and Surplus
Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department
Debarring Officer has delegated debarring authority to the Agricultural
Marketing Service (AMS).
409.404 List of parties excluded from Federal procurement and
nonprocurement programs.
The Department Debarring Officer is USDA's single point of contact
with GSA for debarment and suspension actions taken under this subpart.
The debarring official for AMS shall notify the Department Debarring
Officer of each debarment and suspension action by promptly submitting
a copy of the debarment or suspension notice and any later changes to
the debarment or suspension status. The Department Debarring Officer
will forward a copy of each notice to GSA for inclusion in the
Government-wide list.
[[Page 53654]]
409.405 Effect of listing.
Compelling reasons are considered to be present where failure to
contract with the debarred or suspended contractor would seriously harm
the agency's programs and prevent accomplishment of mission
requirements. The SPE is authorized to make the determinations under
FAR 9.405. Requests for such determinations shall be submitted through
the head of the contracting activity (HCA) to the SPE.
409.405-1 Continuation of current contracts.
The HCA is authorized to make the determinations under FAR 9.405-1.
409.405-2 Restrictions on subcontracting.
The HCA is authorized to approve subcontracts with debarred or
suspended subcontractors under FAR 9.405-2.
409.406 Debarment.
409.406-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes
aware of possible irregularities or any information which may be
sufficient cause for debarment, the case shall be immediately referred
through the HCA to the debarring official. The case must be accompanied
by a complete statement of the facts (including a copy of any criminal
indictments, if applicable) along with a recommendation for action.
Where the statement of facts indicates the irregularities to be
possible criminal offenses, or for any other reason further
investigation is considered necessary, the matter shall be referred to
the HCA who should consult with the Office of Inspector General to
determine if further investigation is required prior to referring to
the debarring official.
(b) Decision-making process. If, after reviewing the
recommendations and consulting with the Office of Inspector General and
Office of the General Counsel, as appropriate, the debarring official
determines debarment is justified, the debarring official shall
initiate the proposed debarment in accordance with FAR 9.406-3(c) and
notify the HCA of the action taken.
(c) Fact-finding proceeding. For actions listed under FAR 9.406-
3(b)(2), the contractor shall be given the opportunity to appear at an
informal hearing. The hearing should be held at a location and time
that is convenient to the parties concerned, if at all possible. The
contractor and any specifically named affiliates may be represented by
counsel or any duly authorized representative. Witnesses may be called
by either party. The proceedings shall be conducted expeditiously and
in such a manner that each party will have an opportunity to present
all information considered pertinent to the proposed debarment. The
contractor shall be provided a copy of a transcript of the proceedings
under the conditions established in FAR 9.406-3(b)(2)(ii).
409.407 Suspension.
409.407-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes
aware of possible irregularities or any information which may be
sufficient cause for suspension, the case shall be immediately referred
through the HCA to the debarring official. The case must be accompanied
by a complete statement of the facts along with a recommendation for
action. Where the statement of facts indicates the irregularities to be
possible criminal offenses, or for any other reason further
investigation is considered necessary, the matter shall be referred to
the HCA who should consult with the Office of Inspector General to
determine if further investigation is required prior to referring it to
the debarring official.
(b) Decision-making process. If, after reviewing the
recommendations and consulting with the Office of Inspector General and
Office of the General Counsel, as appropriate, the debarring official
determines suspension is justified, the debarring official shall
initiate the proposed suspension in accordance with FAR 9.407-3(c) and
notify the HCA of the action taken.
(c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the contractor shall be given the opportunity to appear at an
informal hearing, similar in nature to the hearing for debarments as
discussed in 409.406-3(c).
409.470 Appeals.
A debarred or suspended contractor may appeal the debarring
official's decision by mailing or otherwise furnishing a written notice
within 90 days from the date of the decision to the U.S. Department of
Agriculture Board of Contract Appeals, Washington, D.C. 20250. A copy
of the notice of appeal shall be furnished to the debarring officer
from whose decision the appeal is taken. Appeals under subpart 409.4
shall be governed by the rules and procedures of the U.S. Department of
Agriculture Board of Contract Appeals set forth in 7 CFR part 24.
Subpart 409.5--Organizational and Consultant Conflicts of Interest
409.503 Waiver.
(a) The HCA, on a non-delegable basis, is authorized to waive any
general rule or procedure in FAR 9.5 when in the Government's interest.
(b) Each request for waiver shall include:
(1) The general rule or procedure proposed to be waived;
(2) An analysis of the potential conflict, including the benefits
and detriments to the Government and prospective contractors;
(3) A discussion of why the conflict cannot be avoided,
neutralized, or mitigated; and
(4) Advice of counsel obtained under FAR 9.504(b).
PART 411--DESCRIBING AGENCY NEEDS
Subpart 411.1--Selecting and Developing Requirements Documents
Sec.
411.103 Market acceptance.
411.105 Purchase descriptions for service contracts.
411.170 Brand name or equal.
411.171 Solicitation provisions and contract clauses.
Subpart 411.2--Using and Maintaining Requirements Documents
411.202 Maintenance of standardization documents.
Subpart 411.4--Delivery or Performance Schedules
411.404 Contract clauses.
Subpart 411.6--Priorities and Allocations
411.600 Scope of subpart.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 411.1--Selecting and Developing Requirements Documents
411.103 Market acceptance.
(a) The head of the contracting activity (HCA) may determine that
offerors must demonstrate, in accordance with FAR 11.103(a), the market
acceptability of their items to be offered.
(b) The contracting officer shall place a copy of this
determination, signed by the HCA, in the solicitation file.
411.105 Purchase descriptions for service contracts.
When contract personnel are to be used, the requiring official
shall record on the requisition his or her determination whether harm
to the Government might occur should contractor personnel fail to
identify themselves as non-Government officials.
[[Page 53655]]
411.170 Brand name or equal.
(a) A ``brand name or equal'' purchase description shall include
the following type of information:
(i) Identification of the item by generic description.
(ii) Make, model number, catalog designation, or other description,
and identification of a commercial catalog where it is listed.
(iii) Name of manufacturer, producer, or distributor of the item
and complete address.
(iv) All salient characteristics of the ``brand name or equal''
product or products which have been determined by the requisitioner to
be essential to the Government's minimum requirements.
411.171 Solicitation provisions and contract clauses.
(a) Contracting officers shall insert the provision at 452.211-1,
Brand Name or Equal, in solicitations, other than those for
construction, where ``brand name or equal'' purchase descriptions are
used.
(b) Contracting officers shall insert the clause at 452.211-2,
Equal Products Offered, in solicitations, other than those for
construction, where the provision at 452.211-1 is included.
(c) Contracting officers shall insert the clause at 452.211-3,
Statement of Work/Specifications, when the description (statement of
work) or specification(s) is included in Section J of the solicitation.
(d) Contracting officers shall insert the clause at 452.211-4,
Attachment to Statement of Work/Specifications, when there are
attachments to the description (statement of work) or specifications.
Subpart 411.2--Using and Maintaining Requirements Documents
411.202 Maintenance of standardization documents.
Recommendations for changes to standardization documents are to be
submitted through the Senior Procurement Executive, who will coordinate
the submission of these recommendations to the cognizant preparing
activity.
Subpart 411.4--Delivery or Performance Schedules
411.404 Contract clauses.
(a) The contracting officer shall insert the clause at 452.211-5,
Period of Performance, when it is necessary to specify a period of
performance, beginning on the date of award, date of receipt of notice
of award, or a specified date.
(b) The contracting officer shall insert the clause at 452.211-6,
Effective Period of the Contract, when it is necessary to specify the
effective period of the contract.
Subpart 411.6--Priorities and Allocations
411.600 Scope of subpart.
The Defense Priorities and Allocation System (DPAS) excludes USDA
activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not
authorized to place rated orders under DPAS.
Part 412--ACQUISITION OF COMMERCIAL ITEMS
Subpart 412.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
Sec.
412.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 412.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
412.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
The head of the contracting activity is authorized to approve
waivers in accordance with FAR 12.302(c). The approved waiver may be
either for an individual contract or for a class of contracts for the
specific item. The approved waiver and supporting documentation shall
be incorporated into the contract file.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 413--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 413.1--General
Sec.
413.103 Policy.
Subpart 413.4--Imprest Fund
413.401 General.
Subpart 413.5--Purchase Orders
413.505 Purchase order and related forms.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 413.1--General
413.103 Policy.
USDA policy and procedures on use of the Governmentwide commercial
purchase card are established in Departmental Regulation Series 5000.
Subpart 413.4--Imprest Fund
413.401 General.
Departmental Regulation 2000 series sets policies and guidelines
for the use of imprest funds within USDA. Departmental Regulation 5000
series establishes policies and procedures for the use of the Third
Party Draft System in USDA.
Subpart 413.5--Purchase Orders
413.505 Purchase order and related forms.
(a) Form AD-838, Purchase Order, is prescribed for use by USDA in
lieu of Optional Forms 347 and 348.
(b) The Standard Form 44 (and the previously prescribed USDA Form
AD-744) is not authorized for use within USDA.
PART 414--SEALED BIDDING
Subpart 414.2--Solicitation of Bids
Sec.
414.201 Preparation of invitations for bids.
414.201-6 Solicitation provision.
Subpart 414.4--Opening of bids and Award of Contract
414.404 Rejection of bids.
414.404-1 Cancellation of invitations after opening.
414.407 Mistakes in bids.
414.407-3 Other mistakes disclosed before award.
414.407-4 Mistakes after award.
414.409 Information to bidders.
414.409-2 Award of classified contracts.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 414.2--Solicitation of Bids
414.201 Preparation of invitations for bids.
414.201-6 Solicitation provisions.
The contracting officer shall insert the provision 452.214-70,
Award by Lot, when multiple items are segregated into clearly
identifiable lots and the contracting officer wants to reserve the
right to award by item within a lot, if award in that manner would be
advantageous to the Government.
Subpart 414.4--Opening of Bids and Award of Contract
414.404 Rejection of bids.
414.404-1 Cancellation of invitations after opening.
An acquisition official at a level above the contracting officer is
authorized to make the determinations under FAR 14.404-1(c) and (e)(1).
414.407 Mistakes in bids.
414.407-3 Other mistakes disclosed before award.
The authority to make the determinations under FAR 14.407-3(a),
(b), and (d) is delegated, without power of redelegation, to the head
of the contracting activity. The authority to
[[Page 53656]]
make the determination under FAR 14.407-3(c) is delegated to the
contracting officer. Each determination pursuant to FAR 14.407-3 shall
have the concurrence of the Office of the General Counsel (OGC).
414.407-4 Mistakes after award.
If a mistake in bid is disclosed after award, the contracting
officer shall make a final determination in accordance with the
provisions of FAR 14.407-4 (b) and (c) and shall coordinate each
proposed determination with OGC. Such coordination shall, at a minimum,
consist of the contracting officer providing the proposed determination
and the case file to OGC for comment.
414.409 Information to bidders.
414.409-2 Award of classified contracts.
Disposition of classified information shall be in accordance with
Departmental Regulation and Manual (3400 Series) and in accordance with
direction issued by the USDA Security Officer, Policy Analysis and
Coordination Center--Human Resources Management.
PART 415--CONTRACTING BY NEGOTIATION
Subpart 415.1--General Requirements for Negotiation
Sec.
415.103 Converting from sealed bidding to negotiation procedures.
Subpart 415.4--Solicitation and Receipt of Proposals and Quotations
415.406 Preparing requests for proposals (RFP's) and requests for
quotations (RFQ's).
415.406-1 Uniform contract format.
415.407 Solicitation provisions.
415.408 Issuing solicitations.
415.411 Receipt of proposals and quotations.
415.413 Disclosure and use of information before award.
415.413-2 Alternate II.
Subpart 415.5--Unsolicited Proposals
415.504 Advance guidance.
415.506 Agency procedures.
Subpart 415.6--Source Selection
415.607 Disclosure of mistakes before award.
415.608 Proposal evaluation.
415.612 Formal source selection.
Subpart 415.9--Profit
415.902 Policy.
Subpart 415.10--Preaward, Award, and Postaward Notifications, Protests
and Mistakes
415.1070 Post-award conference.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
=======================================================================
-----------------------------------------------------------------------
Subpart 415.1--General Requirements for Negotiation
415.103 Converting from sealed bidding to negotiation procedures.
An acquisition official at a level above the contracting officer is
authorized to make the determination to permit the use of negotiation
to complete an acquisition following the cancellation of an invitation
for bids.
Subpart 415.4--Solicitation and Receipt of Proposals and Quotations
415.406 Preparing requests for proposals (RFP's) and requests for
quotations (RFQ's).
415.406-1 Uniform contract format.
The Senior Procurement Executive is authorized to exempt contracts
from the uniform contract format.
415.407 Solicitation provisions.
(a) The provision at 452.215-71, Instructions for the Preparation
of Technical and Business Proposals, may be used when offerors will be
required to submit technical and business proposals. Contracting
officers should tailor the clause to reflect the degree of information
required for the specific acquisition.
(b) The contracting officer shall insert the provision at 452.215-
72, Amendments to Proposals, in solicitations which require the
submittal of lengthy, complex technical proposals.
415.408 Issuing solicitations.
Departmental Regulation and Manual (Series 3400), establishes
policy and procedures regarding classification, declassification and
safeguarding of classified information.
415.411 Receipt of proposals and quotations.
Departmental Regulation and Manual (Series 3400), contains guidance
on classification, declassification and safeguarding of classified
information.
415.413 Disclosure and use of information before award.
Contracting officers shall use the Alternate II procedures in FAR
15.413-2 and subsection 415.413-2 when releasing proposals outside the
Government for evaluation purposes.
415.413-2 Alternate II.
(a) The head of the contracting activity (HCA) is authorized to
approve the release of proposals outside the Government for evaluation
purposes. Each such decision shall be supported by a written
justification that shows in sufficient detail the special needs or
circumstances requiring the services of individuals outside the
Government.
(b) During the preaward period, only the contracting officer, the
chief of the contracting office, or others specifically authorized by
either of them may communicate technical or other information to, or
conduct discussions with, offerors. Information shall not be furnished
to an offeror if, alone or together with other information, it may
afford the offeror an advantage over other offerors. However, general
information that is not prejudicial to other offerors may be furnished.
(c) Agency personnel and non-Government evaluators having
authorized access to information contained in proposals shall disclose
neither the number of offerors nor their identity to the public or to
anyone in Government except as authorized in accordance with FAR 3.104
(See also FAR 5.403).
(d) The contracting officer shall obtain the following written
agreement from the non-Government evaluator prior to the release of any
proposal to that evaluator.
``AGREEMENT GOVERNING THE USE AND DISCLOSURE OF PROPOSALS''
RFP#-------------------------------------------------------------------
Offeror----------------------------------------------------------------
1. To the best of my knowledge and belief, no conflict of
interest exists that may diminish my capacity to perform an
impartial and objective review of the offeror's proposal, or may
otherwise result in a biased opinion or an unfair advantage. If a
potential conflict of interest arises or if I identify such a
conflict, I agree to notify the Government promptly concerning the
potential conflict. In determining whether any potential conflict of
interest exists, I agree to review whether me or my employer's
relationships with other persons or entities, including, but not
limited to, ownership of stocks, bonds, other outstanding financial
interests or commitments, employment arrangements (past, present, or
under consideration), and, to the extent known by me, all financial
interests and employment arrangements of my spouse, minor children,
and other members of my immediate household, may place me in a
position of conflict, real or apparent, with the evaluation
proceedings.
2. I agree to use proposal information only for evaluation
purposes. I understand that any authorized restriction on disclosure
placed upon the proposal by the prospective contractor or
subcontractor or by the Government shall be applied to any
reproduction or abstracted information of the proposal. I agree to
use my best effort to safeguard such information physically, and not
to disclose the contents of, or release any information relating to,
the proposal(s) to anyone outside of the Source Evaluation Board or
other panel assembled for this acquisition, the Contracting Officer,
or other individuals designated by the Contracting Officer.
[[Page 53657]]
3. I agree to return to the Government all copies of proposals,
as well as any abstracts, upon completion of the evaluation.
----------------------------------------------------------------------
(Name and Organization)
----------------------------------------------------------------------
(Date)
(End of provision)
(e) The release of a proposal outside the Government for evaluation
does not constitute the release of information for purposes of the
Freedom of Information Act (5 U.S.C. 552).
(f) The contracting officer shall attach a cover page bearing the
GOVERNMENT NOTICE FOR HANDLING PROPOSALS, as set forth in FAR 15.413-
2(e), to each proposal upon receipt. The last sentence of the notice
shall cite 48 CFR 415.413 as the agency implementing regulation.
Subpart 415.5--Unsolicited Proposals
415.504 Advance guidance.
HCA's are responsible for establishing procedures to ensure
compliance with the requirements of FAR 15.504.
415.506 Agency procedures.
HCA's are responsible for establishing the procedures for control
of unsolicited proposals required by FAR 15.506(a) and for identifying
the contact points as required by FAR 15.506(b).
Subpart 415.6--Source Selection
415.607 Disclosure of mistakes before award.
The HCA with the concurrence of the Office of the General Counsel
is authorized to make the determination permitting proposal correction
as required by FAR 15.607(c)(3).
415.608 Proposal evaluation.
An acquisition official above the level of the contracting officer
is authorized to make the determination to reject all proposals under
the circumstances listed in FAR 15.608(b).
415.612 Formal source selection.
The HCA shall determine when a formal source selection process will
be used and establish procedures for implementing the requirements of
FAR 15.612.
Subpart 415.9--Profit
415.902 Policy.
(a)(1) USDA will use a structured approach to determine the profit
or fee prenegotiation objective in acquisition actions when price
negotiation is based on cost analysis.
(2) The following types of acquisitions are exempt from the
requirements of the structured approach, but the contracting officer
shall comply with FAR 15.905-1 when analyzing profit for these
contracts or actions:
(i) Architect-engineer contracts;
(ii) Construction contracts;
(iii) Contracts primarily requiring delivery of material supplied
by subcontractors;
(iv) Termination settlements; and
(v) Cost-plus-award-fee contracts;
(b) Unless otherwise restricted by contracting activity procedures,
the Contracting Officer may use another Federal agency's structured
approach if that approach has been formalized and is maintained as part
of that Agency's acquisition regulations (i.e., included in that
Agency's assigned chapter of Title 48 of the Code of Federal
Regulations).
(c) The HCA is responsible for establishing procedures to ensure
compliance with this subpart.
Subpart 415.10--Preaward, Award, and Postaward Notifications,
Protests and Mistakes
415.1070 Post-Award Conference.
If a postaward conference is necessary, the contracting officer
shall insert clause 452.215-73, Post-Award Conference.
PART 416--TYPES OF CONTRACTS
Sec.
416.000 Scope of part.
Subpart 416.2--Fixed-Price Contracts
416.203 Fixed-price contracts with economic price adjustment.
416.203-4 Contract clauses.
Subpart 416.4--Incentive Contracts
416.404 Cost-reimbursement incentive contracts.
416.404-2 Cost-plus-award-fee contracts.
416.405 Contract clauses.
416.470 Solicitation provision.
Subpart 416.5--Indefinite-Delivery Contracts
416.505 Ordering.
416.506 Solicitation provision and contract clauses.
Subpart 416.6--Time-and-Materials, Labor-Hour, and Letter Contracts
416.603 Letter contracts.
416.603-2 Application.
416.603-4 Contract clauses.
416.670 Contract clauses.
Subpart 416.7--Agreements
416.702 Basic agreements.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
416.000 Scope of part.
Heads of contracting activities (HCA's) are authorized to establish
written procedures allowing the use of any contract type described in
FAR part 16 for acquisitions made under simplified acquisition
procedures in FAR part 13.
Subpart 416.2--Fixed-Price Contracts
416.203 Fixed-price contracts with economic price adjustment.
416.203-4 Contract clauses.
An economic price adjustment clause based on cost indexes of labor
or material may be used under the conditions listed in FAR 16.203-4(d)
after approval by the HCA and consultation with the Office of the
General Counsel.
Subpart 416.4--Incentive Contracts
416.404 Cost-reimbursement incentive contracts.
416.404-2 Cost-plus-award-fee contracts.
The HCA may designate an acquisition official other than the
contracting officer as the fee determination official (FDO) to make the
final determination of the award fee. The designated official must have
warranted contracting authority at the same level as the contracting
officer or higher, and shall not have participated in preparing the
contractor performance evaluation. If the HCA does not designate an
FDO, the chief of the contracting office shall act as the FDO.
416.405 Contract clauses.
The contracting officer shall insert a clause substantially the
same as the clause at 452.216-70, Award Fee, in solicitations and
contracts which contemplate the award of cost-plus-award-fee contracts.
416.470 Solicitation provision.
The contracting officer shall insert the provision at 452.216-71,
Base Fee and Award Fee Proposal, in solicitations which contemplate the
award of a cost-plus-award-fee contract.
Subpart 416.5--Indefinite-Delivery Contracts
416.505 Ordering.
(a) The Chief, Procurement Policy Division, Procurement and
Property Management, Policy Analysis and Coordination Center, has been
designated as the Departmental Task Order Ombudsman.
(b) The Departmental Task Order Ombudsman shall designate a task
order ombudsman for each contracting activity. Contracting activity
ombudsmen shall review and resolve complaints from contractors
concerning task or delivery orders placed by the contracting activity.
(c) Any contractor who is not satisfied with the resolution of a
complaint by a
[[Page 53658]]
contracting activity ombudsman may request the Departmental Task Order
Ombudsman to review the complaint.
416.506 Solicitation provision and contract clauses.
(a) The contracting officer shall insert a provision substantially
the same as the provision at 452.216-72, Evaluation Quantities-
Indefinite-Delivery Contract, in solicitations which contemplate the
award of indefinite-quantity or requirements contracts to establish the
basis on which offers will be evaluated.
(b) The contracting officer shall insert the clause at 452.216-73,
Minimum and Maximum Contract Amounts, in indefinite-delivery,
indefinite-quantity contracts when the clause at FAR 52.216-18 is used.
Subpart 416.6--Time-and-Materials, Labor-Hour, and Letter Contracts
416.603 Letter contracts.
416.603-2 Application.
The HCA is authorized to extend the period for defining a letter
contract required by FAR 16.603-2(c) in extreme cases where it is
determined in writing that such action is in the best interest of the
Government.
416.603-4 Contract clauses.
The contracting officer shall insert the clause at 452.216-75,
Letter Contract, in a definitive contract superseding a letter
contract.
416.670 Contract clauses.
The contracting officer shall limit the Government's obligation
under a time-and-materials or labor-hour contract by inserting the
clause at 452.216-74, Ceiling Price.
Subpart 416.7--Agreements
416.702 Basic agreements.
Promptly after execution by the Government, the HCA shall furnish
to the Senior Procurement Executive a copy of each basic agreement
negotiated with contractors in accordance with FAR 16.702.
PART 417--SPECIAL CONTRACTING METHODS
Subpart 417.2--Options
Sec.
417.204 Contracts.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 417.2--Options
417.204 Contracts.
The head of the contracting activity is authorized to approve
contracts which exceed the 5 year limitation in FAR 17.204(e).
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 419--SMALL BUSINESS PROGRAMS
Subpart 419.2--Policies
Sec.
419.201 General policy.
419.201-70 Office of Small and Disadvantaged Business Utilization
(OSDBU).
419.201-71 Small business coordinators.
419.201-73 Reports.
Subpart 419.5--Set-Asides for Small Business
419.508 Solicitation provisions.
Subpart 419.6--Certificates of Competency and Determinations of
Eligibility
419.602 Procedures.
419.602-1 Referral.
419.602-3 Resolving differences between the agency and the Small
Business Administration.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 419.2--Policies
419.201 General policy.
It is the policy of USDA to provide a fair portion of its
contracting and subcontracting opportunities to small, disadvantaged,
minority, and women-owned businesses.
419.201-70 Office of Small and Disadvantaged Business Utilization
(OSDBU).
The Office of Small and Disadvantaged Business Utilization (OSDBU)
develops rules, policy, procedures and guidelines for the effective
administration of USDA's small and disadvantaged business procurement
preference program to include minority and women-owned business.
419.201-71 Small business coordinators.
The head of the contracting activity (HCA) or a representative of
the HCA shall designate in writing a small business coordinator in each
contracting office. Supervisors of small business coordinators are
encouraged to provide sufficient time for the coordinators to carry out
their small business program duties. Coordinators' duties shall
include, but not be limited to, the following:
(a) Review each proposed acquisition expected to exceed the
simplified acquisition threshold prior to its solicitation. The
coordinator shall:
(1) Recommend section 8(a) action and identify potential
contractors, or
(2) Identify available minority and women-owned businesses to be
solicited by competitive procedures. Coordinators shall document the
contract file with recommendations made and actions taken.
(b) Participate in goal-setting procedures and planning activities
and establish aggressive minority and women-owned business goals based
on the annual review of advance acquisition plans.
(c) Participate in the review of those contracts which require the
successful offeror to submit written plans for the utilization of small
and small disadvantaged businesses as subcontractors.
(d) Ensure that purchases exceeding $2,500 and not exceeding the
simplified acquisition threshold are reserved exclusively for small
businesses, including minority and women-owned businesses. This policy
shall be implemented unless the contracting officer is unable to obtain
offers from two or more small business concerns that are competitive
with market prices and in terms of quality and delivery of the goods or
services being purchased.
(e) Maintain comprehensive source listings of small businesses.
(f) Upon written request, provide small, minority and women-owned
businesses the bidders mailing lists of individuals receiving
solicitations which will contain the subcontracting clause entitled
``Utilization of Small Business Concerns and Small Disadvantaged
Business Concerns.'' These lists may be limited to those supplies or
services of major interest to the requesting firms.
(g) Develop a program of contacts with local, small, minority, and
women-owned trade, business, and professional associations and
organizations and Indian tribal councils to apprise them of USDA's
program needs and recurring contract requirements.
(h) Periodically meet with program managers to discuss requirements
of the small business preference program, explore the feasibility of
breaking large complex requirements into smaller lots suitable for
participation by small firms, and encourage program managers to meet
with these firms so that their capabilities can be demonstrated.
(i) Establish internal operating procedures which implement the
requirements of the regulations as set forth in this part 419. Compile
data and prepare all reports pertaining to the small, minority and
women-owned business activities. Ensure that these reports are
accurate, complete and up-to-date.
[[Page 53659]]
(j) Assist and counsel small business firms and especially those
found to be nonresponsive or nonresponsible to help qualify them for
future awards.
(k) Review proposed large contract requirements to determine the
potential for breaking out components suitable for purchase from small
business firms.
(l) Ensure that the SBA Resident Procurement Center Representative
(PCR) is provided an opportunity and reasonable time to review any
solicitation that meets the dollar threshold for small business and
small disadvantaged business subcontracting plans.
419.201-73 Reports.
(a) The Director, OSDBU, shall be responsible for submitting
reports concerning USDA's progress and achievements in the procurement
preference program.
(b) Subcontracting data for an agency shall be collected by the
small business coordinators and submitted to OSDBU by April 10 and
November 20 of each year.
Subpart 419.5--Set-asides for Small Business
419.508 Solicitation provisions.
The contracting officer shall insert the provision at 452.219-70,
Size Standard and SIC Code Information, in solicitations that are set
aside for small businesses.
Subpart 419.6--Certificates of Competency and Determinations of
Eligibility
419.602 Procedures.
419.602-1 Referral.
Contracting officers shall refer determinations of non-
responsibility regarding small businesses directly to the SBA Regional
Office servicing the location where the contractor's office (home) is
located.
419.602-3 Resolving differences between the agency and the Small
Business Administration.
The HCA is authorized to file the formal appeal with the Small
Business Administration's Central Office as provided by FAR 19.602-
3(c).
PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 422.1--Basic Labor Policies
Sec.
422.103 Overtime.
422.103-4 Approvals.
Subpart 422.3--Contract Work Hours and Safety Standards Act
422.302 Liquidated damages and overtime pay.
Subpart 422.4--Labor Standards for Contracts Involving Construction
422.404 Davis-Bacon wage determinations.
422.404-6 Modifications of wage determinations.
422.406 Administration and enforcement.
422.406-8 Investigations.
Subpart 422.6--Walsh-Healey Public Contracts Act
422.604 Exemptions.
422.604-2 Regulatory exemptions.
422.608 Procedures.
422.608-4 Award pending final determination.
Subpart 422.8--Equal Employment Opportunity
422.803 Responsibilities.
422.804 Affirmative action programs.
422.804-2 Construction.
422.807 Exemptions.
Subpart 422.13--Special Disabled and Vietnam Era Veterans
422.1303 Waivers.
422.1306 Complaint procedures.
Subpart 422.14--Employment of the Handicapped
422.1403 Waivers.
422.1406 Complaint procedures.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 422.1--Basic Labor Policies
422.103 Overtime.
422.103-4 Approvals.
Requests for the use of overtime shall be approved by an
acquisition official at a level above the contracting officer in
accordance with the procedures in FAR 22.103-4 (a) and (b).
Subpart 422.3--Contract Work Hours and Safety Standards Act
422.302 Liquidated damages and overtime pay.
Heads of contracting activities (HCA's) are authorized to review
determinations of liquidated damages due under section 104(c) of the
Contract Work Hours and Safety Standards Act, and to take remedial
action, if appropriate, in accordance with FAR 22.302(c). Contractors
or subcontractors may request review of administrative determinations
of liquidated damages by written notice to the contracting officer. The
contracting officer shall promptly forward appeals of liquidated
damages determinations to the HCA.
Subpart 422.4--Labor Standards for Contracts Involving Construction
422.404 Davis-Bacon Act wage determinations.
422.404-6 Modifications of wage determinations.
HCA's are authorized to request extension of the 90 day period for
award after bid opening as provided in FAR 22.404-6(b)(6).
422.406 Administration and enforcement.
422.406.8 Investigations.
Reports of violations shall be forwarded to the HCA, who shall
process such reports in accordance with FAR 22.406-8(d).
Subpart 422.6--Walsh-Healey Public Contracts Act
422.604 Exemptions.
422.604-2 Regulatory exemptions.
The Assistant Secretary for Administration can request the
Secretary of labor to exempt contracts from the Walsh-Healey Public
Contracts Act pursuant to FAR 22.604-2(c). A written finding justifying
the request for exemption shall be prepared for the Assistant
Secretary's signature and submitted by the HCA to the Senior
Procurement Executive (SPE) for referral to the Assistant Secretary.
422.608 Procedures.
422.608-4 Award pending final determination.
The HCA is delegated authority to approve the contracting officer's
certification for award required by FAR 22.608-4.
Subpart 422.8--Equal Employment Opportunity
422.803 Responsibilities.
The contracting office shall submit questions involving the
applicability of Executive Order 11246 and FAR subpart 22.8 through the
HCA to the SPE for resolution.
422.804 Affirmative action programs.
422.804-2 Construction.
The HCA shall ensure that each contracting office, awarding
nonexempt construction contracts, maintains a current listing of
covered geographical areas subject to affirmative action requirements
specifying goals for minorities and women in covered construction
trades.
422.807 Exemptions.
(a) The Assistant Secretary for Administration is authorized to
make
[[Page 53660]]
the determination in FAR 22.807(a)(1) that a contract is essential to
the national security.
(b) The contracting officer shall submit requests for exemptions
under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE
for determination by the Assistant Secretary of Administration or
referral to the Director, Office of Federal Contract Compliance
Programs (OFCCP), as appropriate.
Subpart 422.13--Special Disabled and Vietnam Era Veterans
422.1303 Waivers.
(a) The Assistant Secretary for Administration is authorized to
make the waiver determinations under FAR 22.1303(a) and FAR 22.1303(b)
with concurrence of the Director, OFCCP.
(b) The contracting office shall submit requests for waivers
through the HCA to the SPE for determination by the Assistant Secretary
for Administration.
422.1306 Complaint procedures.
The contracting officer shall forward complaints received about the
administration of the Vietnam Era Veterans Readjustment Assistance Act
directly to the Department of Labor (DoL) as prescribed in FAR 22.1306.
Subpart 422.14--Employment of the Handicapped
422.1403 Waivers.
(a) The Assistant Secretary for Administration is authorized to
make the waiver determinations under FAR 22.1403(a) and (b) with
concurrence of the Director, OFCCP.
(b) The contracting officer shall submit requests for waivers
through the HCA to the SPE for determination by the Assistant Secretary
for Administration.
422.1406 Complaint procedures.
The contracting officer shall forward complaints received about the
administration of Section 503 of the Rehabilitation Act of 1973, as
amended, directly to the OFCCP as prescribed in FAR 22.1406.
PART 423--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
Subpart 423.1--Pollution Control and Clean Air and Water
Sec.
423.101 Applicability.
423.103 Policy.
423.104 Exemptions.
423.106 Delaying award.
423.107 Compliance responsibilities.
Subpart 423.2--Energy Conservation
423.203 Policy.
Subpart 423.4--Use of Recovered Materials
423.400 Scope of subpart.
423.402 Definitions.
423.404 Procedures.
423.404-70 Acquisition, Recycling, and Waste Prevention Program
(AR&WPP).
Subpart 423.5--Drug-Free Workplace
423.506 Suspension of payments, termination of contract, and
debarment and suspension actions.
Subpart 423.6--Notice of Radioactive Material
423.601 Requirements.
Subpart 423.7--Contracting for Environmentally Preferable and Energy-
Efficient Products and Services
423.704 Policy.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 423.1--Pollution Control and Clean Air and Water
423.101 Applicability.
In addition to the requirement in FAR 23.101, this subpart applies
to indefinite-delivery contracts, other than those for commercial
items, when the contracting officer estimates that the contract will
exceed $100.000.
423.103 Policy.
The head of the contracting activity (HCA) shall establish a system
of instructions to make available to each contracting officer the EPA
List of Violating Facilities and to ensure the contracting officer
reviews the list prior to each proposed award.
423.104 Exemptions.
(a) The Assistant Secretary for Administration is authorized to
grant an exemption described in FAR 23.104.
(b) The Senior Procurement Executive (SPE) is authorized to consult
with the EPA Administrator regarding a proposed class exemption.
423.106 Delaying award.
Prior to notifying EPA, the contracting officer shall advise the
SPE of the need to award before the requested time period expires.
423.107 Compliance responsibilities.
The HCA is authorized to notify the Administrator of EPA of known
or suspected noncompliance with clean air or water standards in
facilities used in performing nonexempt contracts. A copy of the
notification is to be provided to the SPE.
Subpart 423.2--Energy Conservation
423.203 Policy.
In the acquisition of products and services, USDA will give
preference to those that are more energy-efficient.
Subpart 423.4--Use of Recovered Materials
423.400 Scope of subpart.
This subpart implements and supplements FAR policies and procedures
for acquiring products and services when preference is given to offers
of products containing recovered materials. This subpart further
supplements FAR subpart 23.4 by providing guidance for recycling and
waste prevention programs in accordance with Executive Order 12873 and
42 U.S.C. 6962.
423.402 Definitions.
Mission areas are USDA organizational elements headed by an
Undersecretary or an Assistant Secretary.
USDA Acquisition, Recycling, and Waste Prevention Program, issued
by the USDA Environmental Executive, provides implementing guidance for
Departmental affirmative procurement, recycling, and waste reduction.
The USDA Environmental Executive is the Deputy Assistant Secretary
for Administration.
423.404 Procedures.
(a) The dollar thresholds described in FAR 23.404(a) apply to USDA
as a whole.
(b) EPA designated items. The officials identified as Acquisition,
Recycling, and Waste Prevention Program (AR&WPP) Coordinators are
authorized to approve determinations to buy EPA designated items which
do not meet EPA or USDA minimum recovered material content standards.
(c) Agency designated items. The USDA Environmental Executive may,
without further publication in this chapter, designate items or classes
of items containing recovered material to be acquired under the
procedures in FAR 23.4 and this subpart.
423.404-70 Acquisition, Recycling, and Waste Prevention Program
(AR&WPP).
(a) Applicability. The AR&WPP applies to all USDA organizations;
i.e., USDA mission areas, USDA corporations (as described in 31 U.S.C.
9101), and USDA staff offices not included within a mission area.
(b) Authority. The AR&WPP has been established to comply with the
requirements of Executive Order 12873 to coordinate all environmental
[[Page 53661]]
programs in the areas of procurement and acquisition, standards and
specification review, facilities management, waste prevention and
recycling, and logistics.
(c) Responsibilities. (1) Each USDA organization will identify one
or more AR&WPP Coordinators in writing to represent the mission area,
serve on the Council of Coordinators, and work in conjunction with the
USDA Environmental Executive.
(2) Each USDA organization periodically will conduct an audit
(survey or inventory) of the waste stream generated by the
organization. The goals of the audit are:
(i) To identify and measure the elements of waste generated in its
operations;
(ii) To identify processes, equipment, techniques, or materials
which generate waste in energy or materials;
(iii) To identify actions which can be taken to reduce and to
recycle or recover the wastes generated; and
(iv) To assign time frames to accomplish those actions.
(3) Each USDA organization will implement an avoidance or recovery
or recycling program based on the results of the waste stream audit.
(4) Each USDA organization will implement a plan to install on-
going waste prevention techniques.
(5) Each USDA organization will ensure that responsibility for
preparation, implementation, and monitoring of its affirmative
procurement program is shared between program personnel and procurement
personnel.
(6) Each USDA organization will establish measurable goals by which
the effectiveness of its participation in AR&WPP can be assessed on an
annual basis.
(7) Each USDA organization will sponsor annual awards to recognize
the most innovative environmental program of the year.
(d) Acquisition and administration. (1) Each USDA organization will
annually review its product descriptions to enhance the use of
recovered materials and environmentally preferable products and
services by eliminating from the product description:
(i) Any exclusion of recovered materials, and
(ii) Any requirement that items be manufactured from virgin
materials.
(2) Each USDA organization will create a promotion program to
internally and externally promote its desire to buy recycled products.
(3) Each USDA organization will implement the USDA electronic
acquisition system to reduce waste by eliminating unnecessary paper
transactions and to foster accurate data collection and reporting of
acquisitions.
(4) Each USDA organization will establish an affirmative
procurement program specifically for the needs and requirements of its
own organization, to maximize environmental benefits, consistent with
price, performance, and availability considerations.
(5) Each USDA organization will ensure that the on-going inspection
and production surveillance systems in place will monitor the
production or the testing of goods and services to verify the recovered
material contents reported.
(6) Each USDA organization will include
(i) Requirements in contracts for contractor operation of
Government-owned or leased facilities to provide for waste prevention
activities and the recycling of materials and
(ii) Environmental and recycling factors in the selection process
for the acquisition and management of real property.
Subpart 423.5--Drug-Free Workplace
423.506 Suspension of payments, termination of contract, and debarment
and suspension actions.
(a) The contracting officer may recommend waiver of the
determination to suspend payments, to terminate a contract, or to debar
or to suspend a contractor.
(b) The recommendation shall be submitted through the HCA to the
SPE and shall include a full description of the disruption of USDA
operations should the determination not be waived.
(c) The SPE will submit the request for a waiver to the Secretary
with a recommendation for action.
Subpart 423.6--Notice of Radioactive Material
423.601 Requirements.
The HCA shall establish a system of instructions to identify the
installation/facility radiation protection officer.
Subpart 423.7--Contracting for Environmentally Preferable and
Energy-Efficient Products and Services
423.704 Policy.
In its acquisitions, USDA will give preference to environmentally
preferable and energy-efficient products and services.
PART 424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 424.1--Protection of Individual Privacy
Sec.
424.103 Procedures.
424.104 Contract clauses.
Subpart 424.2--Freedom of Information Act
424.202 Policy.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 424.1--Protection of Individual Privacy
424.103 Procedures.
USDA regulations implementing the Privacy Act are found in 7 CFR,
subtitle A, part 1, subpart G. Contracting officers shall follow these
regulations when responding to requests for information or awarding
contracts that will involve the design, development, or operation of a
system of records on individuals to accomplish agency functions.
424.104 Contract clauses.
When applicable, the contracting officer shall insert the clause at
452.224-70, Confidentiality of Information, in contracts involving
confidential information.
Subpart 424.2--Freedom of Information Act
424.202 Policy.
USDA regulations implementing the Freedom of Information Act are
found in 7 CFR, subtitle A, part 1, subpart A. Contracting officers
shall follow these regulations when responding to requests for
information or awarding contracts that will involve the design,
development, or operation of a system of records on individuals to
accomplish agency functions.
PART 425--FOREIGN ACQUISITION
Subpart 425.1--Buy American Act--Supplies
Sec.
425.102 Policy.
425.105 Evaluating offers.
425.108 Expected articles, materials and supplies.
Subpart 425.2--Buy American Act--Construction Materials
425.202 Policy.
425.203 Evaluating offers.
425.204 Violations.
Subpart 425.3--Balance of Payments Program
425.302 Policy.
425.304 Excess and near-excess foreign currencies.
[[Page 53662]]
Subpart 425.4--Trade Agreements
425.402 Policy.
Subpart 425.9--Additional Foreign Acquisition Clauses
425.901 Omission of audit clause.
Subpart 425.10--Implementation of Sanctions Against Countries That
Discriminate Against United States Products or Services in Government
Procurement
425.1002 Trade sanctions.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 425.1--Buy American Act--Supplies
425.102 Policy.
The Senior Procurement Executive (SPE) shall make the determination
prescribed in FAR 25.102(a)(3).
425.105 Evaluating offers.
The SPE shall make the determinations prescribed in FAR 25.105.
Requests for SPE approval shall be submitted by the HCA, in writing,
and shall provide a detailed justification supporting why the proposed
award is in the best interest of the Government.
425.108 Excepted articles, materials, and supplies.
(a) Copies of determinations of nonavailability in accordance with
FAR 25.102(a)(4) or 25.202(a)(3), for articles, material or supplies
not listed in FAR 25.108, shall be submitted to the SPE for submission
to the FAR Council.
(b) Information required by FAR 25.108(c) shall be submitted to the
SPE for submission to the FAR Council.
Subpart 425.2--Buy American Act--Construction Materials
425.202 Policy.
The SPE shall make the determination prescribed in FAR
25.202(a)(2).
425.203 Evaluating offers.
(a) The SPE may determine that the use of a particular domestic
construction material would be impracticable or would unreasonably
increase the cost of the contract.
(b) If a contracting officer proposes that the use of a particular
domestic construction material should be waived for a contract, the
contracting officer shall submit the proposed award and the information
prescribed in FAR 25.203(b) through the HCA to the SPE for approval or
disapproval.
425.204 Violations.
Contracting officers shall, in accordance with the debarment
procedures prescribed in 409.4, refer all violations of FAR clause
52.225-5, Buy American Act--Construction Material, to the Department
Debarring Officer for possible debarment action.
Subpart 425.3--Balance of Payments Program
425.302 Policy.
The HCA shall make the determinations prescribed in FAR
25.302(b)(2) and (3) and may authorize differentials greater than 50
percent as prescribed in FAR 25.302(c).
425.304 Excess and near-excess foreign currencies.
HCA's shall make the determinations as to the feasibility of using
excess or near-excess currency.
Subpart 425.4--Trade Agreements
425.402 Policy.
Whenever the U.S. Trade Representative publishes a redetermination
of the dollar threshold at which the Trade Agreements Act applies, that
dollar threshold will be published in a Departmental Notice, 5025
series.
Subpart 425.9--Additional Foreign Acquisition Clauses
425.901 Omission of audit clause.
The SPE shall make the determination under FAR 25.901(c)(1).
Subpart 425.10--Implementation of Sanctions Against Countries That
Discriminate Against United States Products or Services in
Government Procurement
425.1002 Trade sanctions.
The Secretary, without power of redelegation, has the authority to
make the necessary determination(s) and authorize award(s) of
contract(s) in accordance with FAR 25.1002(c).
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 427--PATENTS, DATA AND COPYRIGHTS
Subpart 427.1--General
Sec.
427.104 General guidance.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 427.1--General
427.104 General guidance
As used in FAR part 27, the agency head or agency head designee is
the Senior Procurement Executive, except under FAR 27.306(a) and (b).
Under FAR 27.306(a) and (b), the agency head is the Secretary without
power of redelegation.
PART 428--BONDS AND INSURANCE
Subpart 428.1--Bonds
Sec.
428.101 Bid guarantees.
428.101-1 Policy on use.
428.106 Administration.
428.106-6 Furnishing information.
Subpart 428.2--Sureties
428.203 Acceptability of individual sureties.
428.204 Alternatives in lieu of corporate or individual sureties.
428.204-2 Certified or cashier's checks, bank drafts, money orders,
or currency.
Subpart 428.3--Insurance
428.307 Insurance under cost-reimbursement contracts.
428.307-1 Group insurance plans.
428.310 Contract clause for work on a Government installation.
428.370 Government-owned vehicles operated in foreign countries.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 428.1--Bonds
428.101 Bid guarantees.
428.101-1 Policy on use.
The Senior Procurement Executive may authorize class waivers of the
requirement to obtain bid guarantees.
428.106 Administration.
428.106-6 Furnishing information.
Heads of contracting activities (HCA's) or their designees may
furnish certified copies of bonds and the contracts for which they were
given as provided by FAR 28.106-6(c). Requesters may be required to pay
costs of certification and copying established by the Departmental Fee
Schedule for records requests (7 CFR part 1, subpart A, appendix A).
Subpart 428.2--Sureties
428.203 Acceptability of individual sureties.
Evidence of possible criminal or fraudulent activities by an
individual surety shall be reported to the Office of Inspector General
in accordance with Departmental Regulations (1700 series).
428.204 Alternatives in lieu of corporate or individual sureties.
HCA's shall establish procedures to ensure protection and
conveyance of deposited securities of the types listed in FAR 28.204-1
through 28.204-3.
[[Page 53663]]
428.204-2 Certified or cashier's checks, bank drafts, money orders, or
currency.
The contracting officer shall insert the provision at 452.228-70,
Alternative Forms of Security, in a solicitation if a bond is required.
Subpart 428.3--Insurance
428.307 Insurance under cost-reimbursement contracts.
428.307-1 Group insurance plans.
Under cost-reimbursement contracts, before buying insurance under a
group insurance plan, the contractor shall submit the plan to the
contracting officer for review. During review, the contracting officer
shall use all sources of information available, such as audits,
industry practice, or other sources of information, to determine
whether acceptance of the plan submitted would be in the Government's
best interest.
428.310 Contract clause for work on a Government installation.
The contracting officer shall insert the clause at 452.228-71,
Insurance Coverage, in solicitations and contracts which include the
clause at FAR 52.228-5, Insurance--Work on a Government Installation.
If property liability insurance is required, the contracting officer
shall use the clause with its Alternate I.
428.370 Government-owned vehicles operated in foreign countries.
USDA is authorized to obtain insurance to cover liability incurred
by any of its employees while acting within the scope of their
employment and operating a Government-owned vehicle in a foreign
country. (7 U.S.C. 2262).
PART 430---COST ACCOUNTING STANDARDS ADMINISTRATION
Sec.
430.070 Definitions.
Subpart 430.2---CAS Program Requirements
430.201 Contract requirements.
430.201-5 Waiver.
430.202 Disclosure requirements.
430.202-2 Impracticality of submission.
430.202-8 Subcontractor Disclosure Statements.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
430.070 Definitions.
ACO, as used in this part and in FAR part 30, means administrative
contracting officer as described in FAR part 42.
Subpart 430.2---CAS Program Requirements
430.201 Contract requirements.
430.201-5 Waiver.
The Senior Procurement Executive (SPE), without the authority to
further redelegate, is authorized to request the Cost Accounting
Standards Board to waive the application of the Cost Accounting
Standards (CAS). Contracting officers shall prepare waiver requests in
accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition),
subsection 9903.201-5, and submit them to the SPE through the head of
the contracting activity (HCA).
430.202 Disclosure requirements.
430.202-2 Impracticality of submission.
(a) The Secretary, without the power to delegate, is authorized to
determine, in accordance with FAR part 99 (Appendix B), subsection
9903.202-2, that the Disclosure Statement is impractical to secure and
to authorize award without obtaining the Disclosure Statement.
(b) The request for this determination is to be prepared in
accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is
to contain the proposed report to the CASB.
(c) Requests for a determination under paragraph (a) of this
section shall be prepared by the contracting officer and submitted
through the HCA to the SPE for concurrence and submittal to the
Secretary.
430.202-8 Subcontractor Disclosure Statements.
(a) The Secretary, without the power to redelegate, is authorized
to determine that the Disclosure Statement for a subcontractor is
impractical to secure and to authorize award without obtaining the
Disclosure Statement.
(b) Requests for this determination are to be prepared and
forwarded as described in 430.202-2.
PART 431--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 431.1--Applicability
Sec.
431.101 Objectives.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 431.1--Applicability
431.101 Objectives.
(a) The SPE is designated as the official authorized to give
advance approval of an individual deviation concerning cost principles.
(b) The SPE is designated as the official authorized to give
advance approval of a class deviation concerning cost principles after
coordination with the Civilian Agency Acquisition Council.
(c) Requests for advance approval of class deviations concerning
cost principles must be submitted to the SPE through the HCA.
PART 432--CONTRACT FINANCING
Sec.
432.001 Definitions.
432.003 Simplified acquisition procedures financing.
432.006 Reduction or suspension of contract payments upon finding
of fraud.
432.006-2 Definitions.
432.006-3 Responsibilities.
432.006-4 Procedures.
432.006-5 Reporting.
Subpart 432.1--Non-Commercial Item Purchase Financing
432.102 Description of contract financing methods.
432.103 Progress payments under construction contracts.
432.111 Contract clauses for non-commercial purchases.
432.113 Customary contract financing.
432.114 Unusual contract financing.
Subpart 432.2--Commercial Item Purchase Financing
432.202 General.
432.202-1 Policy.
432.202-4 Security for Government financing.
432.206 Solicitation provisions and contract clauses.
432.207 Administration and payment of commercial financing
payments.
Subpart 432.3--Loan Guarantees for Defense Production
432.301 Definitions.
Subpart 432.4--Advance Payments for Non-Commercial Items
432.402 General.
432.406 Letters of credit.
432.407 Interest.
432.412 Contract clause.
Subpart 432.6--Contract Debts
432.601 Definition.
432.616 Compromise actions.
Subpart 432.7--Contract Funding
432.703 Contract funding requirements.
432.703-3 Contracts crossing fiscal years.
432.770 USDA specific funding limitations.
Subpart 432.8--Assignment of Claims
432.802 Conditions.
432.803 Policies.
432.805 Procedure.
432.806 Contract clauses.
Subpart 432.9--Prompt Payment
432.905 Invoice payments.
432.906 Contract financing payments.
[[Page 53664]]
Subpart 432.10--Performance-Based Payments
432.1007 Administration and payment of performance-based payments.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
432.001 Definitions.
The agency contract finance office is the office, other than the
office of the requisitioner, providing funding or performing funding
record keeping for the contract action.
Responsible fiscal authority is that officer in the agency contract
finance office with the responsibility to ensure that adequate funds
are available and usable for the intended purpose.
432.003 Simplified acquisition procedures financing.
(a) The chief of the contracting office may approve contract
financing on a contract to be entered under the simplified acquisition
procedures. Class approvals may not be made.
(b) The signed approval must contain the supporting rationale for
the action and an estimate of the cost and/or risk to the government.
432.006 Reduction or suspension of contract payments upon finding of
fraud.
432.006-2 Definitions.
(a) The USDA remedy coordination official (RCO) is the Assistant
Secretary for Administration.
(b) For the purposes of this part, head of the agency means,
exclusively, the Secretary or the Deputy Secretary.
432.006-3 Responsibilities.
When a contracting officer suspects that a request for advance,
partial, or progress payment is based on fraud, the request shall be
referred directly to the Office of Inspector General (OIG) in
accordance with their instructions. A copy of the referral shall be
submitted through the head of the contracting activity (HCA) to the
Senior Procurement Executive (SPE).
432.006-4 Procedures.
(a) Immediately upon submittal of the referral described in
432.006-3, the HCA and the contracting officer shall confer with the
SPE and representatives of the OIG to discuss the potential for
reduction or suspension of further payments based on the considerations
listed in FAR 32.006-4(d) (1) through (5).
(b) The SPE will determine whether the contractor has contracts
with other Departments or contracting activities and will involve them,
as necessary, in the decision making process.
(c) The OIG will determine the need for and the extent of an
investigation.
(d) Immediately upon completion of the OIG investigation (or, if
deemed necessary by the OIG and the SPE, before completion of the
investigation) the SPE, in coordination with the HCA, the contracting
officer, and the OIG, shall make a report on the action to the RCO.
(e) Upon receipt of the report, the RCO will submit a
recommendation to the Secretary.
(f) Upon receipt of the RCO's report the Secretary will:
(1) Notify the contractor in writing, allowing 30 calendar days
after receipt of the notice, that the contractor may submit in writing
information and arguments in opposition to the recommendation; and
(2) Consider the RCO's recommendation, the SPE's report, the
response of the contractor, and any other relevant information in order
to make an appropriate final determination.
(g) This determination will be provided to the contractor and to
the SPE for distribution to the agencies involved and for appropriate
action under the determination.
(h) The determination and the supporting documentation will be
placed in the contract file(s) and a copy will be maintained by the
SPE.
(i) The contracting officer will advise the SPE of the actual date
of the reduction or suspension action.
(j) Not later than 150 calendar days after the actual date of the
reduction or suspension action, the SPE will prepare for the RCO a
review of the agency head's determination, and will propose a
recommendation from the RCO to the agency head as to whether the
reduction or suspension action should continue. The RCO will submit the
recommendation (including a recommendation for the time period of a
follow up review) to the agency head. This recommendation will be
considered by the Secretary and handled as a final action described in
paragraph (f) of this section.
(k) The contract may not be closed nor final payment made prior to
a final determination by the Secretary.
432.006-5 Reporting.
The annual report required by FAR 32.006-5 is to be prepared by the
SPE and to be submitted to the Secretary within 90 calendar days after
the end of the fiscal year. When signed by the Secretary, the report is
to be maintained by the SPE.
Subpart 432.1--Non-commercial Item Purchase Financing
432.102 Description of contract financing methods.
Progress payments based on a percentage or stage of completion are
authorized for use as a payment method under USDA contracts or
subcontracts for construction, alteration or repair, and shipbuilding
and conversion. Such payments also are authorized for service
contracts, if the contracting officer determines that progress payments
based on costs are not practicable and adequate safeguards are provided
to administer progress payments based on a percentage or stage of
completion. For all other contracts, progress payment provisions shall
be based on costs except that the HCA may authorize progress payments
based on a percentage or stage of completion on a case-by-case basis.
Each authorization by the HCA shall include a determination and finding
that progress payments based on costs cannot be employed practically
and that there are adequate safeguards provided for the administration
of progress payments based on a percentage or stage of completion.
432.103 Progress payments under construction contracts.
(a) When approving a progress payment under a construction
contract, the contracting officer shall indicate the amount to be paid
by the payment office and include in the contract file the rationale in
support of the payment.
(b) When a retainage is made on a progress payment under a
construction contract, the contracting officer shall place in the
contract file a written determination stating the reason(s) for the
retainage.
(c) When a progress payment under a construction contract has been
approved, the amount to be paid, the amount of any retainage withheld,
and the reason(s) for the retainage shall be provided to the contractor
by the contracting officer in writing before the payment due date.
(d) When the contractor, under a fixed-price construction contract,
furnishes evidence to the contracting officer that the surety has been
paid in full for bond premiums and requests reimbursement, the first
subsequent progress payment shall include the total amount attributable
to such bond premiums and the Government shall pay that amount in full.
This amount paid for the bond premiums is not an amount in addition to
the stated contract price.
[[Page 53665]]
432.111 Contract clauses for non-commercial purchases.
The contracting officer shall insert the clause at 452.232-1,
Reimbursement for Bond Premiums--Fixed Price Construction Contracts,
whenever the clause at FAR 52.232-5, Payments under Fixed-Price
Construction Contracts, is used in a contract.
432.113 Customary contract financing.
The contracting officer may determine the necessity for customary
contract financing. The determination and finding that customary
contract financing is needed shall be placed in the contract file.
432.114 Unusual contract financing.
The HCA is authorized to approve unusual contract financing. The
signed determination and finding supporting this approval shall be
included in the contract file.
Subpart 432.2--Commercial Item Purchase Financing
432.202 General.
432.202-1 Policy.
In the case of unusual contract financing, the approval by the HCA
shall be recorded in a determination and finding and maintained in the
contract file.
432.202-4 Security for Government financing.
Prior to determining that an offeror's financial condition is
adequate security, the contracting officer must obtain the concurrence
of the funding activity in the proposed determination.
432.206 Solicitation provisions and contract clauses.
The responsibility for administration of the liquidation provisions
of a contract may not be transferred from the contracting officer.
432.207 Administration and payment of commercial financing payments.
The responsibility for receiving, reviewing, and approval of
contract financing requests may not be transferred from the contracting
officer.
Subpart 432.3--Loan Guarantees for Defense Production
432.301 Definitions.
Within this subpart, the ``agency'' or ``guaranteeing agency'' is
the ``head of the contracting activity'' (HCA) and may not be
redelegated.
Subpart 432.4--Advance Payments for Non-commercial Items
432.402 General.
The HCA is designated as the individual responsible for making the
findings and determination, and for approval of the contract terms
concerning advance payments.
432.406 Letters of credit.
The HCA is designated as the individual responsible for
coordination with the Department of Treasury concerning letters of
credit.
432.407 Interest.
(a) The HCA is designated as the individual who may authorize, on a
case by case basis, advance payments without interest for the contract
types described in FAR 32.407(d)(1), (2), (3), and (4). The signed
determination and findings supporting these authorizations shall be
included in the contract files.
(b) The SPE is designated as the individual who may authorize
advance payments without interest other than those described in
paragraph (a) of this section.
432.412 Contract clause.
The decision to use Alternates I or III to clause 52.232-12 must be
supported by a determination and finding.
Subpart 432.6--Contract Debts
432.601 Definition.
Responsible official means the contracting officer.
432.616 Compromise actions.
Compromise of a debt within the proceedings under appeal to the
Board of Contract Appeals is the responsibility of the contracting
officer.
Subpart 432.7--Contract Funding
432.703 Contract funding requirements.
432.703-3 Contracts crossing fiscal years.
Funds appropriated to USDA may be used for one-year contracts which
are to be performed in two fiscal years so long as the total amount for
such contracts is obligated in the year for which the funds are
appropriated (7 U.S.C. 2209c).
432.770 USDA specific funding limitations.
(a) The USDA is authorized to subscribe for newspapers as may be
necessary to carry out its authorized work: Provided, that such
subscriptions shall not be made unless provision is made therefor in
the applicable appropriation and the cost thereof is not in excess of
limitations prescribed therein (7 U.S.C. 2258).
(b) The expenditure of any USDA appropriation for any consulting
service through any contract, pursuant to section 3109 of Title 5 of
the U.S. Code shall be limited to those contracts where such
expenditures are a matter of public record and available for public
inspection, except where otherwise provided under existing law, or
under existing Executive Order issued pursuant to existing law (7
U.S.C. 2225a).
Subpart 432.8--Assignment of Claims
432.802 Conditions.
Written notices of assignment and a true copy of the assigned
instrument are to be sent to the contracting officer rather than the
agency head. Other copies are distributed as directed in FAR 32.802.
432.803 Policies.
The HCA may make a determination of need to include a no-setoff
commitment in a contract.
432.805 Procedure.
The information described in FAR 32.805 shall be filed with the
contracting officer.
432.806 Contract clauses.
The contracting officer may make the determination whether to
include the clause at FAR 52.232-23 in any purchase order expected to
exceed the micro-purchase threshold.
Subpart 432.9--Prompt Payment
432.905 Invoice payments.
The payment terms for supplies and services on the Procurement List
and provided by a Javits-Wagner-O'Day Act participating nonprofit
agency are governed by FAR 8.709.
432.906 Contract financing payments.
The HCA may prescribe, on a case-by-case basis, a shorter period
for financing payments.
Subpart 432.10--Performance-Based Payments
432.1007 Administration and payment of performance-based payments.
The responsibility for receiving, reviewing, and approval of
performance-based payment requests may not be transferred from the
contracting officer.
[[Page 53666]]
PART 433--PROTESTS, DISPUTES AND APPEALS
Subpart 433.1--Protests
Sec.
433.102 General.
433.103 Protests to the agency.
433.104 Protests to GAO.
Subpart 433.2--Disputes and Appeals
433.203 Applicability.
433.203-70 Agriculture Board of Contract Appeals.
433.209 Suspected fraudulent claims.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 433.1--Protests
433.102 General.
(a) The Senior Procurement Executive (SPE) is responsible for
coordinating the handling of bid protests lodged with the General
Accounting Office (GAO).
(b) The head of the contracting activity (HCA), on a non-delegable
basis, may resolve protests and authorize reimbursement of costs in
accordance with FAR 33.102(b).
433.103 Protests to the agency.
(a) Actual or prospective bidders or offerors may file protests
either with the HCA, as provided by 433.102(b), or with the contracting
officer. Protesters who file protests with the HCA shall furnish a
complete copy to the contracting officer no later than 1 day after the
protest is filed with the HCA.
(b) When a protest is received, the adjudicating official shall
take prompt action towards resolution and notify the protester in
writing of the action taken. The written final decision shall include a
paragraph substantially as follows:
This decision shall be final and conclusive unless a further
written notice of protest is filed with the General Accounting
Office in accordance with 4 CFR part 21. Neither the filing of a
protest with USDA nor the filing of a protest with the General
Accounting Office affects your right to file an action in a district
court of the United States or the United States Court of Federal
Claims.
433.104 Protests to GAO.
The contracting activity shall furnish a copy of all reports
submitted to the GAO, including all relevant documents, to the SPE
simultaneously with their submission to the GAO.
Subpart 433.2--Disputes and Appeals
433.203 Applicability.
The Assistant Secretary for Administration is authorized to
determine the applicability of the Contract Disputes Act to contracts
with foreign governments pursuant to FAR 33.203.
433.203-70 Agriculture Board of Contract Appeals.
The organization, jurisdiction, and functions of the Agriculture
Board of Contract Appeals, together with its Rules of Procedure, are
set out in 7 CFR part 24.
433.209 Suspected fraudulent claims.
The contracting officer shall refer all matters related to
suspected fraudulent claims by a contractor under the conditions in FAR
33.209 to the Office of Inspector General for additional action or
investigation.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 434--MAJOR SYSTEM ACQUISITION
Subpart 434.0--General
Sec.
434.001 Definitions.
434.002 Policy.
434.003 Responsibilities.
434.004 Acquisition strategy.
434.005 General requirements.
434.005-6 Full production.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 434.0--General
434.001 Definitions.
Pursuant to OMB Circular No. A-109 (A-109) and the definition at
FAR 34.001, within USDA, a system shall be considered a major system
if:
(a) The total acquisition costs with private industry are estimated
to be $50 million or more, or
(b) The system has been specifically designated to be a major
system by the USDA Acquisition Executive, even if the acquisition costs
are not expected to exceed $50 million.
434.002 Policy.
In addition to the policy guidance at FAR 34.002, the policies
outlined in paragraph 6 of A-109 should serve as guidelines for all
contracting activities in planning and developing systems, major or
otherwise.
434.003 Responsibilities.
(a) The Secretary of Agriculture or other designated USDA key
executive is responsible for making four key decisions in each major
system acquisition process. These are listed in paragraph 9 of A-109
and elaborated on in paragraphs 10 through 13. The key executives of
USDA (Secretary, Deputy Secretary, Under Secretaries and Assistant
Secretaries) individually or as a group will participate in this
decision making process.
(b) The Assistant Secretary for Administration (ASA) is the USDA
Acquisition Executive. The ASA will ensure that A-109 is implemented in
USDA and that the management objectives of the Circular are realized.
The ASA is responsible for designating the program manager for each
major system acquisition, designating an acquisition to be a major
system acquisition, and approving the written charter and project
control system for each major system acquisition.
(c) The Procurement and Property Management staff is responsible
for assisting the ASA in carrying out the above responsibilities.
(d) Heads of contracting activities must:
(1) Ensure compliance with the requirements of A-109, FAR part 34
and AGAR 434.
(2) Ensure that potential major system acquisitions are brought to
the attention of the USDA Acquisition Executive.
(3) Recommend qualified candidates for designation as program
managers for each major system acquisition within their jurisdiction.
(4) Ensure that program managers fulfill their responsibilities and
discharge their duties.
(5) Cooperate with the ASA in implementing the requirements of A-
109.
(e) The program manager is responsible for planning and executing
the major system acquisition, ensuring appropriate coordination with
the USDA Acquisition Executive and other key USDA executives.
434.004 Acquisition strategy.
(a) The program manager will develop, in coordination with the
Acquisition Executive, a written charter outlining the authority,
responsibility, accountability, and budget for accomplishing the
proposed objective.
(b) The program manager will develop, subject to the approval of
the Acquisition Executive, a project control system to schedule,
monitor, and regularly report on all aspects of the project. The
control system shall establish reporting periods and milestones
consistent with the key decisions listed in paragraph 9 of A-109.
(c) Upon initiation of the project, the program manager will report
regularly to the Acquisition Executive.
434.005 General requirements.
434.005-6 Full production.
The Secretary or the USDA key executive designated by the Secretary
for the specific program is the agency head for the purposes of FAR
34.005-6.
[[Page 53667]]
PART 435--RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
435.010 Scientific and technical reports.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
435.010 Scientific and technical reports.
Research and development contracts shall contain a provision
requiring that the contractor send copies of all scientific and
technical reports to the National Technical Information Service at the
address indicated in FAR 35.010(b). The release of research and
development contract results to other government activities and to the
private sector is subject to the provisions of FAR subpart 4.4.
PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 436.2--Special Aspects of Contracting for Construction
Sec.
436.201 Evaluation of contractor performance.
436.203 Government estimate of construction costs.
436.204 Disclosure of the magnitude of construction projects.
436.205 Statutory cost limitations.
436.209 Construction contracts with architect-engineer firms.
Subpart 436.3--Special Aspects of Sealed Bidding in Construction
Contracting
436.302 Presolicitation notices.
Subpart 436.5--Contract Clauses
436.500 Scope of subpart.
436.571 Prohibition against the use of lead-based paint.
436.572 Use of premises.
436.573 Archeological or historic sites.
436.574 Control of erosion, sedimentation, and pollution.
436.575 Maximum workweek-construction schedule.
436.576 Samples and certificates.
436.577 Emergency response.
436.578 Standard specifications for construction of roads and
bridges.
436.579 Opted timber sale road requirements.
Subpart 436.6--Architect-Engineer Services
436.601 Policy
436.601-3 Applicable contracting procedures.
436.602 Selection of firms for architect-engineer contracts.
436.602-1 Selection criteria.
436.602-2 Evaluation boards.
436.602-3 Evaluation board functions.
436.602-4 Selection authority.
436.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
436.603 Collecting data on and appraising firms' qualifications.
436.604 Performance evaluation.
436.605 Government cost estimate for architect-engineer work.
436.609 Contract clauses.
436.609-1 Design within funding limitations.
436.670 Firms ineligible for award--construction.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 436.2--Special Aspects of Contracting for Construction
436.201 Evaluation of contractor performance.
Preparation of performance evaluation reports. In addition to the
requirements of FAR 36.201, performance evaluation reports shall be
prepared for indefinite-delivery type contracts when either the
contract maximum or the contracting activity's reasonable estimate of
services to be ordered exceeds $500,000.00. For these contracts,
performance evaluation reports shall be prepared for each order at the
time of final acceptance of the work under the order.
436.203 Government estimate of construction costs.
For acquisitions using sealed bid procedures, the contracting
officer may disclose the overall amount of the Government's estimate of
construction costs following identification of the responsive bid most
advantageous to the Government; verification of that bid's price
reasonableness; and verification of the bidder's responsibility. For
acquisitions using other than sealed bid procedures (e.g.,
negotiation), the contracting officer may disclose the overall amount
of the estimate after contract award.
436.204 Disclosure of the magnitude of construction projects.
In the case of indefinite-delivery type contracts, the reasonable
estimate of work to be done or the maximum in the solicitation, both
including all options, is to be used to select the price range.
Contracting officers may elect to use both a price range for the base
period of services and the total, inclusive of options, to best
describe the magnitude of the solicitation.
436.205 Statutory cost limitations.
(a) When it appears that funds available for a project may be
insufficient for all the desired features of construction, the
contracting officer may provide in the solicitation for a base bid item
covering the work generally as specified and for one or more additive
or deductive bid items which progressively add or omit specified
features of the work in a stated order of priority. In this case, the
contracting officer shall insert the provision at 452.236-70, Additive
or Deductive Items, in solicitations for construction.
(b) In the alternative to the process in paragraph (a) of this
section, the contracting officer may use the policies and procedures
found in FAR 17.2.
436.209 Construction contracts with architect-engineer firms.
The head of the contracting activity (HCA) is authorized to approve
the award of a contract to construct a project, in whole or in part, to
the firm (inclusive of its subsidiaries or affiliates) that designed
the project.
Subpart 436.3--Special Aspects of Sealed Bidding in Construction
Contracting
436.302 Presolicitation notices.
The authority to waive a presolicitation notice is restricted to
the HCA.
Subpart 436.5--Contract Clauses
436.500 Scope of subpart.
This subpart prescribes clauses for insertion in USDA solicitations
and contracts for construction and for dismantling, demolition, or
removal of improvements or structures. The contracting officer shall
use the clauses as prescribed, in contracts that exceed the simplified
acquisition threshold. The contracting officer may use the clauses if
the contract amount is expected to be within the simplified acquisition
threshold.
436.571 Prohibition against the use of lead-based paint.
The contracting officer shall insert the clause at 452.236-71,
Prohibition Against the Use of Lead-Based Paint, in solicitations and
contracts, if the work involves construction or rehabilitation
(including dismantling, demolition, or removal) of residential
structures. This clause may be used in contracts for other than
residential structures.
436.572 Use of premises.
The contracting officer shall insert the clause at 452.236-72, Use
of Premises, if the contractor will be permitted to use land or
premises administered by USDA.
436.573 Archeological or historic sites.
The contracting officer shall insert the clause at 452.236-73,
Archeological or Historic Sites, if the contractor will be working in
an area where such sites may be found. Use of the clause is optional in
service contracts for on-the-ground work, e.g. reforestation,
silvicultural,
[[Page 53668]]
land stabilization, or other agricultural-related projects.
436.574 Control of erosion, sedimentation, and pollution.
The contracting officer shall insert the clause at 452.236-74,
Control of Erosion, Sedimentation and Pollution, if there is a need for
applying environmental controls in the performance of work. Use of the
clause is optional in service contracts for on-the-ground e.g.,
reforestation, silvicultural, land stabilization, or other
agricultural-related projects.
436.575 Maximum workweek-construction schedule.
The contracting officer shall insert the clause at 452.236-75,
Maximum Workweek-Construction Schedule, if the contractor's work
schedule is restricted by access to the facility or must be coordinated
with the schedule of contract administration personnel.
436.576 Samples and certificates.
The contracting officer shall insert the clause at 452.236-76,
Samples and Certificates, in all contracts.
436.577 Emergency response.
The contracting officer may insert the clause at 452.236-77,
Emergency Response, in construction contracts awarded for the Forest
Service.
436.578 Standard specifications for construction of roads and bridges.
The contracting officer shall insert the clause at 452.236-78,
Forest Service Standard Specifications for Construction of Roads and
Bridges, in construction contracts that incorporate the standard
specifications.
436.579 Opted timber sale road requirements.
The contracting officer shall insert the clause at 452.236-79,
Opted Timber Sale Road Requirements, in road construction contracts
resulting from a timber sale turnback.
Subpart 436.6--Architect-Engineer Service.
436.601 Policy.
436.601-3 Applicable contracting procedures.
The technical official's listing of areas where recovered materials
cannot be used shall be referred to the contracting activity's official
designated in accordance with FAR 23.404. A copy of the listing and of
any approval or disapproval by that official is to be retained in the
solicitation file.
436.602 Selection of firms for architect-engineer contracts.
436.602-1 Selection criteria.
The HCA is authorized to approve the use of design competition
under the conditions in FAR 36.602-1(b).
436.602-2 Evaluation boards.
HCA's shall establish written procedures for providing permanent or
ad hoc architect-engineer evaluation boards as prescribed in FAR
36.602-2. The procedures may provide for the appointment of private
practitioners of architecture, engineering, or related professions when
such action is determined by the HCA to be essential to meet the
Government's minimum needs.
436.602-3 Evaluation board functions.
The selection report required in FAR 36.602-3(d) shall be prepared
for the approval of the HCA. The HCA may authorize an acquisition
official above the level of the contracting officer to execute the
required approval.
436.602-4 Selection authority.
(a) The HCA shall serve as the selection authority in accordance
with FAR 36.602-4. The HCA may authorize an acquisition official above
the level of the contracting officer to serve as the selection
authority.
(b) A copy of the final selection, inclusive of the supporting
documents, shall be provided to the contracting officer and maintained
in the solicitation file.
436.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
The HCA may include either or both procedures in FAR 36.602-5 in
the procedures for evaluation boards.
436.603 Collecting data on and appraising firms' qualifications.
(a) HCA's which require architect-engineer services shall establish
procedures to comply with the requirements of FAR 36.603.
(b) The procedures shall include a list of names, addresses, and
phone numbers of offices or boards assigned to maintain architect-
engineer qualification data files. The list shall be updated annually.
436.604 Performance evaluation.
Preparation of performance evaluation reports. (a) In addition to
the requirements of FAR 36.604, performance evaluation reports shall be
prepared for indefinite-delivery type contracts when either the
contract maximum or the contracting activities reasonable estimate of
services to be ordered exceeds $25,000.00. For these contracts,
performance evaluation reports shall be prepared for each order at the
time of final acceptance of the work under the order.
(b) The contracting officer may require a performance evaluation
report on the work done by the architect-engineer after the completion
of or during the construction of the designed project.
436.605 Government cost estimate for architect-engineer work.
The contracting officer may release the Government's total cost
estimate in accordance with FAR 36.605(b).
436.609 Contract clauses.
436.609-1 Design within funding limitations.
(a) Should the head of the contracting activity appoint a designee
to make the determination in FAR 36.609-1(c)(1), the appointment may be
to one no lower than the official authorized to commit program funds
for the work being acquired.
(b) The contracting officer, with the advice of appropriate
technical representatives, may make the determination in FAR 36.609-
1(c)(2) or (3).
(c) A copy of the determinations described in paragraph (b) and (c)
of this section shall be maintained in the contract file.
436.670 Firms ineligible for award--construction.
The contracting officer shall insert the clause at 452.236-80,
Firms Ineligible For Award--Construction, in the contract for
architect-engineering services except as provided in FAR 36.209 and
AGAR 436.209.
PART 437--SERVICE CONTRACTING
Subpart 437.1--Service Contracts--General
Sec.
437.104 Personal services contracts.
437.110 Solicitation provisions and contract clauses.
Subpart 437.2--Advisory and Assistance Services
437.203 Policy.
437.270 Solicitation provisions and contracts clauses.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 437.1--Service Contracts--General
437.104 Personal services contracts.
USDA has the following specific statutory authorities to contract
for personal services:
[[Page 53669]]
(a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225)
authorizes contracting with persons or organizations on a temporary
basis, without regard to civil service compensation classification
standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53,
Provided:
(1) That no expenditures shall be made unless specifically provided
for in the applicable appropriation, and
(2) Expenditures do not exceed any limitations prescribed in the
appropriation.
(b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to
contract with technically qualified persons, firms or organizations to
perform research, inspection, classification, technical, or other
special services, without regard to the civil-service laws, Provided:
it is for a temporary basis and for a term not to exceed six months in
any fiscal year.
437.110 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert a clause substantially the
same as the clause at 452.237-70, Loss Damage, Destruction or Repair,
in contracts for equipment rental, whether the equipment is furnished
with or without operator.
(b) The contracting officer shall insert a provision substantially
the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference,
in all solicitations if a conference with prospective offerors will be
held prior to the submittal of bids or proposals.
(c) The contracting officer shall insert the provision at 452.237-
73, Equipment Inspection visit, in solicitations if work is to be done
on Government equipment and an offeror's inspection is encouraged for
an understanding of the work to be performed prior to submittal of bids
or proposals.
(d) The contracting officer shall insert a clause substantially the
same as the clause at 452.237-74, Key Personnel, in contracts if
contract performance requires identification of the contractor's key
personnel.
(e) The contracting officer shall insert a clause substantially the
same as the clause at 452.237-75, Restrictions Against Disclosure, in
service contracts (including architect-engineer contracts) requiring
restrictions on release of information developed or obtained in
connection with performance of the contract.
Subpart 437.2--Advisory and Assistance Services
437.203 Policy.
Contracting for advisory and assistance services is subject to the
policy and procedures in Departmental Regulations (5000 series).
437.270 Solicitation and contract clauses.
(a) The contracting officer shall insert a clause substantially the
same as the clause at 452.237-76, Progress Reporting, in all contracts
for advisory and assistance services. It may also be used in other
service contracts.
(b) The contracting officer shall insert a clause substantially the
same as the clause at 452.237-78, Contracts with Consulting Firms for
Services, in solicitations and contracts for consulting services which
prohibit follow-on contracts with the contracting firm.
PART 441--ACQUISITION OF UTILITY SERVICES
Subpart 441.2--Acquiring Utility Services
441.201 Policy.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 441.2--Acquiring Utility Services
441.201 Policy.
As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency
head designee is the head of the contracting activity.
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 442--CONTRACT ADMINISTRATION
Subpart 442.1--Interagency Contract Administration and Audit Services
Sec.
442.102 Procedures.
Subpart 442.15--Contractor Performance Information
442.1502 Policy.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 442.1--Interagency Contract Administration and Audit
Services
442.102 Procedures.
(a) The Office of Inspector General (OIG), Audit Division, has
established a cross-servicing arrangement with the Defense Contract
Audit Agency (DCAA) to provide contract audit services required by the
FAR.
(b) All contract audit services required by contracting officers,
except those which can be accomplished in-house, shall be coordinated
through the cognizant OIG Regional Inspector General--Auditing (RIG-A).
Cognizance is determined on the basis of the contractor's location.
There is no charge for DCAA audit services coordinated through OIG.
(c) In order to ensure compliance with this requirement and to
evaluate the results of audits, contracting officers shall forward to
the RIG-A copies of all price negotiation memoranda prepared for
contracts and contract modifications in excess of $500,000.
Subpart 442.15--Contractor Performance Information
442.1502 Policy.
The head of the contracting activity shall be responsible for
establishing past performance evaluation procedures and systems as
required by FAR 42.1502 and 42.1503.
PART 445--GOVERNMENT PROPERTY
Subpart 445.3--Providing Government Property to Contractors
Sec.
445.302 Providing facilities.
445.302-1 Policy.
Subpart 445.4--Contractor Use and Rental of Government Property
445.403 Rental--Use and Charges clause.
445.407 Non-Government use of plant equipment.
Subpart 445.6--Reporting, Redistribution and Disposal of Contractor
Inventory
445.608 Screening of contracting inventory.
445.608-6 Waiver of screening requirements.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 445.3--Providing Government Property to Contractors
445.302 Providing facilities.
445.302-1 Policy.
Heads of contracting activities (HCA's) are authorized to make
determinations for providing facilities to a contractor as prescribed
in FAR 45.302-1(a)(4).
Subpart 445.4--Contractor Use and Rental of Government Property
445.403 Rental--Use and Charges clause.
HCA's are authorized to make determinations for charging rent on
the basis of use under the Use and Charges clause in FAR 52.245-9 as
prescribed in FAR 45.403(a).
445.407 Non-Government use of plant equipment.
Requests for non-Government use of plant equipment as prescribed in
FAR 45.407 shall be submitted by the HCA to the Senior Procurement
Executive (SPE) for approval.
[[Page 53670]]
Subpart 445.6--Reporting, Redistribution and Disposal of Contractor
Inventory
445.608 Screening of contractor inventory.
445.608-6 Waiver of screening requirements.
Requests to waive screening requirements as prescribed in FAR
46.608-6 shall be submitted by the HCA to the SPE for approval.
PART 446--QUALITY ASSURANCE
Subpart 446.3--Contract Clauses
Sec.
446.370 Inspection and acceptance.
Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).
Subpart 446.3--Contract Clauses
446.370 Inspection and acceptance.
The Contracting Officer shall insert the clause at 452.246-70,
Inspection and Acceptance, in contracts where inspection and acceptance
will be performed at the same location. The clause with its Alternate I
is for use when inspection and acceptance will be performed at
different locations.
PART 447--TRANSPORTATION
Subpart 447.3--Transportation in Supply Contracts
Sec.
447.302 Place of delivery--F.O.B. point.
447.305 Solicitation provisions, contract clauses, and
transportation factors.
447.305-10 Packing, marking, and consignment instructions.
Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).
Subpart 447.3--Transportation in Supply Contracts
447.302 Place of delivery--F.O.B. point.
The contracting officer shall insert a clause substantially the
same as the clause at 452.247-70, Delivery Location, in supply
contracts when it is necessary to specify delivery locations. If
appropriate, the clause may reference an attachment which lists various
delivery locations and other delivery details (e.g., quantities to be
delivered to each location, etc.).
447.305 Solicitation provisions, contract clauses, and transportation
factors.
447.305-10 Packing, marking, and consignment instructions.
(a) The contracting officer shall insert a clause substantially the
same as the clause at 452.247-71, Marking Deliverables, in
solicitations and contracts if special marking on deliverables (other
than reports) are required.
(b) The contracting officer shall insert the clause at 452.247-72,
Packing for Domestic Shipment, in contracts when item(s) will be
delivered for immediate use to a destination in the continental United
States; when the material specification or purchase description does
not provide preservation, packaging, packing, and/or marking
requirements; and/or when the requiring activity has not cited a
specific specification for packaging.
(c) The contracting officer shall insert the clause at 452.247-73,
Packing for Overseas Shipment, in contracts when item(s) will be
delivered to an overseas destination for immediate use, the material
specification does not specify packing levels, and the required
activity has not specified such requirements.
PART 449--TERMINATION OF CONTRACTS
Subpart 449.1--General Principles
Sec.
449.106 Fraud or other criminal conduct.
449.111 Review of proposed settlements.
Subpart 449.4--Termination for Default
449.402 Termination of fixed-price contracts for default.
449.402-3 Procedure for default.
Subpart 449.5--Contract Termination Clauses
449.501 General
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 449.1--General Principles
449.106 Fraud or other criminal conduct.
(a) If the contracting officer suspects fraud or other criminal
conduct a written report documenting the facts shall be submitted by
the head of the contracting activity (HCA) to the Office of Inspector
General. Copies of documents or other information connected with the
suspected fraud or criminal conduct shall be provided with the report.
Concurrently, a copy of the report shall also be submitted to the
Senior Procurement Executive.
(b) Depending on the findings of the Office of Inspector General,
the HCA may initiate suspension or debarment action as prescribed in
FAR part 9.4 and part 409.4.
449.111 Review of proposed settlements.
Proposed settlement agreements shall be reviewed and approved in
accordance with contracting activity procedures.
Subpart 449.4--Termination for Default
449.402 Termination of fixed-price contracts for default.
449.402-3 Procedure for default.
In addition to the requirements of FAR 49.402-3(g), the notice of
termination shall contain instructions regarding the disposition of any
Government property in the possession of the contractor (see FAR
45.508-1) and, in the case of construction contracts, such materials,
appliances, and structures as may be on the site of the construction
work. The notice shall also contain a statement concerning the
liability of the contractor or its surety for any liquidated damages
(see FAR 49.402-7).
Subpart 449.5--Contract Termination Clauses
449.501 General.
Use of special purpose termination clauses pursuant to the
authority of FAR 49.501 shall be approved in advance by the HCA.
PART 450--EXTRAORDINARY CONTRACTUAL ACTIONS
Sec.
450.001 Definitions.
Subpart 450.1--General
450.104 Reports.
Subpart 450.2--Delegation of and Limitations on Exercise of Authority
450.201 Delegation of authority.
Subpart 450.3--Contract Adjustments
450.303 Contract adjustment.
450.303-1 Contractor requests.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
450.001 Definitions.
Approving authority, as used in this part, means the Assistant
Secretary for Administration.
Secretarial level, as used in this part means the Assistant
Secretary for Administration.
Subpart 450.1--General
450.104 Reports.
The Senior Procurement Executive shall prepare the report required
by FAR 50.104.
Subpart 450.2--Delegation of and Limitations on Exercise of
Authority
450.201 Delegation of authority.
The Assistant Secretary for Administration is authorized to approve
all actions under FAR part 50 except indemnification actions listed in
FAR 50.201(d) which must be approved by
[[Page 53671]]
the Secretary, without power of delegation.
Subpart 450.3--Contract Adjustments
450.303 Contract adjustment.
450.303-1 Contractor requests.
Contractor requests shall be submitted to the contracting officer.
SUBCHAPTER H--CLAUSES AND FORMS
PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 452.2--Texts of Provisions and Clauses
Sec.
452.204-70 Inquiries.
452.211-1 Brand Name or Equal.
452.211-2 Equal Products Offered.
452.211-3 Statement of Work/Specifications.
452.211-4 Attachments to Statement of Work/Specifications.
452.211-5 Period of Performance.
452.211-6 Effective Period of the Contract.
452.214-70 Award by Lot.
452.215-71 Instructions for the Preparation of Technical and
Business Proposals.
452.215-72 Amendments to Proposals.
452.215-73 Post-Award Conference.
452.216-70 Award Fee.
452.216-71 Base Fee and Award Fee Proposal.
452.216-72 Evaluation Quantities--Indefinite-Delivery Contract.
452.216-73 Minimum and Maximum Contract Amounts.
452.216-74 Ceiling Price.
452.216-75 Letter Contract.
452.219-70 Size Standard and SIC Code Information.
452.224-70 Confidentiality of Information.
452.228-70 Alternative Forms of Security.
452.228-71 Insurance Coverage.
452.232-1 Reimbursement for Bond Premiums--Fixed-Price
Construction.
452.236-70 Additive or Deductive Items.
452.236-71 Prohibition Against the Use of Lead-Based Paint.
452.236-72 Use of Premises.
452.236-73 Archaeological or Historic Sites.
452.236-74 Control of Erosion, Sedimentation, and Pollution.
452.236-75 Maximum Workweek--Construction Schedule.
452.236-76 Samples and Certificates.
452.236-77 Emergency Response.
452.236-78 Forest Service Standard Specifications for Construction
of Roads and Bridges.
452.236-79 Opted Timber Sale Road Requirements.
452.236-80 Firms Ineligible for Award--Construction.
452.237-70 Loss, Damage, Destruction or Repair.
452.237-71 Pre-Bid/Pre-Proposal Conference.
452.237-73 Equipment Inspection Visit.
452.237-74 Key Personnel.
452.237-75 Restrictions Against Disclosure.
452.237-76 Progress Reporting.
452.237-78 Contracts with Consulting Firms for Services.
452.246-70 Inspection and Acceptance.
452.247-70 Delivery Location.
452.247-71 Marking Deliverables.
452.247-72 Packing for Domestic Shipment.
452.247-73 Packing for Overseas Shipment.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 452.2--Texts of Provisions and Clauses
452.204-70 Inquiries.
As prescribed in 404.7001, insert the following provision:
INQUIRIES (FEB 1988)
Inquiries and all correspondence concerning this solicitation
should be submitted in writing to the Contracting Officer. Offerors
should contact only the Contracting Officer issuing the solicitation
about any aspect of this requirement prior to contract award.
(End of provision)
452.211-1 Brand Name or Equal.
As prescribed in 411.171, insert the following provision:
BRAND NAME OR EQUAL (NOV 1996)
(As used in this provision, the term ``brand name'' includes
identification of products by make and model.)
(a) If items called for by this solicitation have been
identified by a ``brand name or equal'' description, such
identification is intended to be descriptive, but not restrictive,
and is to indicate the quality and characteristics of products that
will be satisfactory. Offers of ``equal'' products (including
products of the brand name manufacturer other than the one described
by brand name) will be considered for award if such products are
clearly identified in the offer (see clause 452.211-2) and are
determined by the Contracting Officer to meet fully the salient
characteristics requirements listed in the solicitation.
(b) Unless the offeror clearly indicates in its offer that it is
offering an ``equal'' product, the offeror shall be considered as
offering the brand name product(s) referenced in the solicitation.
(c)(1) If the offeror proposes to furnish an ``equal'' product
or products, the brand name(s), if any, and any other required
information about the product(s) to be furnished shall be inserted
in the space provided in the solicitation. The evaluation of offers
and the determination as to the equality of the product(s) offered
shall be the responsibility of the Government and will be based on
information furnished by the offeror or identified in its offer as
well as other information reasonably available to the contracting
activity. Caution to offerors: The contracting activity is not
responsible for locating or securing any information which is not
identified in the offer and is not reasonably available to the
contracting activity. Accordingly, to assure that sufficient
information is available, the offeror must furnish as a part of its
offer all descriptive material (such as cuts, illustrations,
drawings, or other information) necessary for the contracting
activity to (i) determine whether the product offered meets the
salient characteristics requirement of the solicitation, and (ii)
establish exactly what the offeror proposes to furnish and what the
Government would be binding itself to purchase by making an award.
The information furnished may include specific reference to
information previously furnished or to information otherwise
available to the contracting activity.
(2) If an offeror proposes to modify a product so as to make it
conform to the requirements of the solicitation, the offer shall
include (i) a clear description of such proposed modifications and
(ii) clearly marked descriptive material to show the proposed
modifications.
(End of Provision)
452.211-2 Equal Products Offered.
As prescribed in 411.171, insert the following or substantially the
same clause in solicitations seeking offers on a ``brand name or
equal'' basis to allow offerors the opportunity to clearly identify the
``equal'' item being offered, and to illustrate how that item meets the
salient characteristics requirements of the Government.
EQUAL PRODUCTS OFFERED (NOV 1996)
(a) Offerors proposing to furnish an ``equal'' product, in
accordance with the ``Brand Name or Equal'' provision of this
solicitation, shall provide the following information for each
offered ``equal'' product:
Contract Line Item Number (if any):------------------------------------
Brand Name or Equal Product identified by the Government in this
solicitation:----------------------------------------------------------
Offered Product Name:--------------------------------------------------
Catalog Description or part number:------------------------------------
----------------------------------------------------------------------
Manufacturer's Name:---------------------------------------------------
Manufacturer's Address:------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(b) Offerors are responsible for submitting all additional
information on the above product necessary for the Contracting
Officer to determine whether the product offered meets the ``brand
name or equal'' product's salient characteristics listed in the
solicitation.
(End of Clause)
452.211-3 Statement of Work/Specifications.
As prescribed in 411.171, insert the following clause:
STATEMENT OF WORK/SPECIFICATIONS (FEB 1988)
The Contractor shall furnish the necessary personnel, material,
equipment, services and facilities (except as otherwise specified),
to perform the Statement of Work/Specifications referenced in
Section J.
[[Page 53672]]
(End of Clause)
452.211-4 Attachments to Statements of Work/Specifications.
As prescribed in 411.171, insert the following clause:
ATTACHMENTS TO STATEMENT OF WORK/SPECIFICATIONS (FEB 1988)
The attachments to the Statement of Work/Specifications listed
in Section J are hereby made part of this solicitation and any
resultant contract.
(End of Clause)
452.211-5 Period of Performance.
As prescribed in 411.404(a), insert the following clause:
PERIOD OF PERFORMANCE (FEB 1988)
The period of performance of this contract is from ______
through ______.*
(End of Clause)
* Contracting Officer shall insert the appropriate dates.
452.211-6 Effective Period of the Contract.
As prescribed in 411.404(b), insert the following clause:
EFFECTIVE PERIOD OF THE CONTRACT (FEB 1988)
The effective period of this contract is from ______ through
______.*
(End of Clause)
* Contracting Officer shall insert the appropriate dates.
452.214-70 Award by Lot.
As prescribed in 414.201-6, insert a provision substantially as
follows:
AWARD BY LOT (NOV 1996)
Subject to the Section L provision FAR 52.214-10, ``Contract
Award--Sealed Bidding,'' award will generally be made to a single
bidder on each entire lot. However, the Government reserves the
right to award by item within any lot when the contracting officer
determines that it is advantageous to the Government.
(End of Provision)
452.215-71 Instructions for the Preparation of Technical and Business
Proposals.
As prescribed in 415.407(a), insert a provision substantially as
follows:
INSTRUCTIONS FOR THE PREPARATION OF TECHNICAL AND BUSINESS PROPOSALS
(NOV 1996)
(a) General Instructions. Proposals submitted in response to
this solicitation shall be furnished in the following format with
the numbers of copies as specified below.
(1) The proposal must include a technical proposal and business
proposal. Each of the parts shall be separate and complete so that
evaluation of one may be accomplished independently from evaluation
of the other. The technical proposal must not contain reference to
cost; however, resource information (such as data concerning labor
hours and categories, materials, subcontracts, etc.) must be
contained in the technical proposal so that the contractor's
understanding of the statement of work may be evaluated.
(2) Offerors may, at their discretion, submit alternate
proposals or proposals which deviate from the requirement; provided,
that an offeror also submit a proposal for performance of the work
as specified in the statement of work. Any ``alternate'' proposal
may be considered if overall performance would be improved or not
compromised, and if it is in the best interest of the Government.
Alternate proposals, or deviations from any requirement of this RFP,
must be clearly identified.
(3) The Government will evaluate proposals in accordance with
the evaluation criteria set forth in Section M of this RFP.
(4) Offerors shall submit their proposal(s) in the following
format and the quantities specified:
(a) ______* copies of the completed, signed offer (Sections A
through K of the solicitation package)
(b) ______* copies of the technical proposal
(c) ______* copies of the business/cost proposal
(b) Technical Proposal Instructions. The technical proposal will
be used to make an evaluation and arrive at a determination as to
whether the proposal will meet the requirements of the Government.
Therefore, the technical proposal must present sufficient
information to reflect a thorough understanding of the requirements
and a detailed, description of the techniques, procedures and
program for achieving the objectives of the specifications/statement
of work. Proposals which merely paraphrase the requirements of the
Government's specifications/ statement of work, or use such phrases
as ``will comply'' or ``standard techniques will be employed'' will
be considered unacceptable and will not be considered further. As a
minimum, the proposal must clearly provide the following:
(Contracting Officer shall identify in this section the minimum
information required to evaluate each technical evaluation factor
listed in Section M.)
(c) Business Proposal Instructions.
(1) Cost Proposal.
In addition to any other requirements for cost/pricing
information required in clause FAR 52.215-41, Requirements for Cost
or Pricing Data or Other Than Cost of Pricing Data (OCT 1995), the
following is required:
(Contracting Officer shall identify additional information
required if appropriate.)
(2) Business Proposal.
(a) Furnish financial statements for the last two years,
including an interim statement for the current year, unless
previously provided to the office issuing the RFP, in which case a
statement as to when and where this information was provided may be
furnished instead.
(b) Specify the financial capacity, working capital and other
resources available to perform the contract without assistance from
any outside source.
(c) Provide the name, location, and intercompany pricing policy
for other divisions, subsidiaries, parent company, or affiliated
companies that will perform work or furnish materials under this
contract.
(End of Provision)
*Contracting officer shall insert number of copies required.
Alternate I (NOV 1996): When FAR clause 52.215-41 is not used to
specify the cost/price information requirements and cost and pricing
data is required substitute the following for subparagraph (1):
(c)(1) Cost and pricing data is required. Cost proposals must be
submitted on a Standard Form 1411, Contract Pricing Proposal Cover
Sheet, with supporting attachments in accordance with FAR Table 15-
2, Instructions for Submission of a Contract Pricing Proposal.
Alternate II (NOV 1996): When FAR clause 52.215-41 is not used
and use of a SF 1448 is required for submission of other than cost
and pricing data, substitute the following subparagraph for c(1)
above:
(c)(1) Cost proposals must be submitted on a Standard Form 1448,
Proposal Cover Sheet (Cost or Pricing Data Not Required), in
accordance with FAR Table 15-3, Instructions for Submission of
Information Other Than Cost or Pricing Data.
452.215-72 Amendments to Proposals.
As prescribed in 415.407(b), insert the following provision:
AMENDMENTS TO PROPOSALS (FEB 1988)
Any changes to a proposal made by the offeror after its initial
submittal shall be accomplished by replacement pages. Changes from
the original page shall be indicated on the outside margin by
vertical lines adjacent to the change. The offeror shall include the
date of the amendment on the lower right corner of the changed
pages.
(End of Provision)
452.215-73 Postaward Conference.
As prescribed in 415.1070, insert a clause substantially as
follows:
POST AWARD CONFERENCE (NOV 1996)
A post award conference with the successful offeror is required.
It will be scheduled within ______* days after the date of contract
award. The conference will be held at: ______*.
(End of Clause)
*Contracting officer to insert number of days and location.
452.216-70 Award Fee.
As prescribed in 416.405, insert a clause substantially as follows:
AWARD FEE (FEB 1988)
The amount of award fee the Contractor earns, if any, is based
on a subjective evaluation by the Government of the quality of the
Contractor's performance in accordance with the award fee plan. The
Government will determine the amount of award fee every ______*
months beginning with ______*. The Fee Determination Official (FDO)
will unilaterally determine the amount of award fee. The FDO's
determination will be in writing to the Contractor and is not
[[Page 53673]]
subject to the ``Disputes'' clause. The Government may unilaterally
change the award fee plan at any time and will provide such changes
in writing to the Contractor prior to the beginning of the
applicable evaluation period. The Contractor may submit a voucher
for the earned award fee. Available award fee not earned during one
period does not carry over to subsequent periods.
(End of Clause)
* Contracting Officer shall insert appropriate number of months.
** Contracting Officer shall insert appropriate date.
452.216-71 Base Fee and Award Fee Proposal.
As prescribed in 416.470, insert the following provision:
BASE FEE AND AWARD FEE PROPOSAL (FEB 1988)
For the purpose of this solicitation, offerors shall propose a
base fee of ______* percent of the total estimated cost proposed.
The award fee shall not exceed ______* percent of the total
estimated cost.
(End of Provision)
*Contracting Officer shall insert appropriate percentages.
452.216-72 Evaluation Quantities--Indefinite Delivery Contract.
As prescribed in 416.506(a), insert a provision substantially as
follows:
EVALUATION QUANTITIES--INDEFINITE-DELIVERY CONTRACT (FEB 1988)
To evaluate offers for award purposes, the Government will apply
the offeror's proposed fixed-prices/rates to the estimated
quantities included in the solicitation, and will add other direct
costs if applicable.
(End of Provision)
452.216-73 Minimum and Maximum Contract Amounts.
As prescribed in 416.506(b), insert the following clause:
MINIMUM AND MAXIMUM CONTRACT AMOUNTS (FEB 1988)
During the period specified in FAR clause 52.216-18, ORDERING,
the Government shall place orders totaling a minimum of ______*, but
not in excess of ______*.
(End of Clause)
*Contracting Officer shall insert appropriate quantity or dollar
amounts.
452.216-74 Ceiling Price.
As prescribed in 416.670, insert the following clause:
CEILING PRICE (FEB 1988)
The ceiling price of this contract is $ ______*. The Contractor
shall not make expenditures or incur obligations in the performance
of this contract which exceed the ceiling price specified herein,
except at the Contractor's own risk.
(End of Clause)
*Contracting Officer shall insert appropriate dollar amount.
452.216-75 Letter Contract.
As prescribed in 416.603-4, insert the following clause:
LETTER CONTRACT (FEB 1988)
This contract replaces letter contract No. ______* dated ______*
and all amendments thereto.
(End of Clause)
*Contracting Officer shall insert number and date.
452.219-70 Size Standard and SIC Code Information.
As prescribed in 419.508, insert the following provision:
SIZE STANDARD AND SIC CODE INFORMATION (NOV 1996)
The Standard Industrial Classification Code(s) and business size
standard(s) describing the products and/or services to be acquired
under this solicitation are listed below:
Contract line item(s): ______* SIC Code ______* Size Standard
______*
(End of provision)
*Contracting Officer shall insert the appropriate data for each
contract line item in the solicitation. The data entry line may be
duplicated as required to describe all of the contract line items or
sub-items.
452.224-70 Confidentiality of Information.
As prescribed in 424.104, insert a clause substantially as follows:
CONFIDENTIALITY OF INFORMATION (FEB. 1988)
(a) Confidential information, as used in this clause, means--
(1) information or data of a personal nature, proprietary about
an individual, or (2) information or data submitted by or pertaining
to an organization.
(b) In addition to the types of confidential information
described in (a)(1) and (2) above, information which might require
special consideration with regard to the timing of its disclosure
may derive from studies or research, during which public disclosure
of primarily invalidated findings could create an erroneous
conclusion which might threaten public health or safety if acted
upon.
(c) The Contracting Officer and the Contractor may, by mutual
consent, identify elsewhere in this contract specific information
and/or categories of information which the Government will furnish
to the Contractor or that the Contractor is expected to generate
which is confidential. Similarly, the Contracting Officer and the
Contractor may, by mutual consent, identify such confidential
information from time to time during the performance of the
contract. Failure to agree will be settled pursuant to the
``Disputes'' clause.
(d) If it is established that information to be utilized under
this contract is subject to the Privacy Act, the Contractor will
follow the rules and procedures of disclosure set forth in the
Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and
policies, with respect to systems of records determined to be
subject to the Privacy Act.
(e) Confidential information, as defined in (a)(1) and (2)
above, shall not be disclosed without the prior written consent of
the individual, institution or organization.
(f) Written advance notice of at least 45 days will be provided
to the Contracting Officer of the Contractor's intent to release
findings of studies or research, which have the possibility of
adverse effects on the public or the Federal agency, as described in
(b) above. If the Contracting Officer does not pose any objections
in writing within the 45 day period, the Contractor may proceed with
disclosure. Disagreements not resolved by the Contractor and
Contracting Officer will be settled pursuant to the ``Disputes''
clause.
(g) Whenever the Contractor is uncertain with regard to the
proper handling of material under the contract, or if the material
in question is subject to the Privacy Act or is confidential
information subject to the provisions of this clause, the Contractor
shall obtain a written determination from the Contracting Officer
prior to any release, disclosure, dissemination, or publication.
(h) The provisions of paragraph (e) of this clause shall not
apply when the information is subject to conflicting or overlapping
provisions in other Federal, State or local laws.
(End of Clause)
452.228-70 Alternative Forms of Security.
As prescribed in 428.204-2, insert the following provision:
ALTERNATIVE FORMS OF SECURITY (NOV. 1996)
If furnished as security, money orders, drafts, cashiers checks,
or certified checks shall be drawn payable to: ____*.
(End of Provision)
*Contracting Officer shall insert the name of the USDA
contracting activity.
452.228-71 Insurance Coverage.
As prescribed in 428.310, insert the following clause:
INSURANCE COVERAGE (NOV. 1996)
Pursuant to FAR clause 52.228-5, Insurance-Work on a Government
Installation, the Contractor will be required to present evidence to
show, as a minimum, the amounts of insurance coverage indicated
below:
(a) Workers Compensation and Employer's Liability. The
Contractor is required to comply with applicable Federal and State
workers' compensation and occupational disease statutes. If
occupational diseases are not compensable under those statutes, they
shall be covered under the employer's liability section of the
insurance policy, except when contract operations are so commingled
with a Contractor's commercial operations that it would not be
practical to require this coverage. Employer's liability coverage of
at least $100,000 shall be required, except in States with exclusive
or monopolistic funds that do not permit
[[Page 53674]]
worker's compensation to be written by private carriers.
(b) General Liability. The Contractor shall have bodily injury
liability insurance coverage written on a comprehensive form of
policy of at least $500,000 per occurrence.
(c) Automobile Liability. The Contractor shall have automobile
liability insurance written on a comprehensive form of policy. The
policy shall provide for bodily injury and property damage liability
covering the operation of all automobiles used in connection with
performing the contract. Policies covering automobiles operated in
the United States shall provide coverage of at least $200,000 per
person and $500,000 per occurrence for bodily injury and $20,000 per
occurrence for property damage or loss.
(d) Aircraft Public and Passenger Liability. When aircraft are
used in connection with performing the contract, the Contractor
shall have aircraft public and passenger liability insurance.
Coverage shall be at least $200,000 per person and $500,000 per
occurrence for bodily injury, other than passenger injury. Coverage
for passenger injury shall be at least $200,000 multiplied by the
number of seats or passengers, whichever is greater.
(End of Clause)
Alternate I (NOV. 1996). As prescribed in 428.310, substitute
the following paragraph (b), when additionally the contractor must
have property damage liability coverage:
(b) General Liability. (1) The Contractor shall have bodily
injury liability coverage written on a comprehensive form of policy
of at least $500,000 per occurrence.
(2) The Contractor shall have property damage liability
insurance shall be required in the amount of ______* per occurrence.
*Contracting Officer shall insert amount required.
452.232-1 Reimbursement for Bond Premiums--Fixed-Price Construction
Contracts.
As prescribed in 432.111, insert the following clause:
REIMBURSEMENT FOR BOND PREMIUMS--FIXED-PRICE CONSTRUCTION CONTRACTS
(NOV. 1996)
The Contract Price includes the total amount for premiums that
the Contractor attributes to the furnishing of performance and
payment bonds required by the contract. Reimbursement for bond
premiums under the clause at FAR 52.232-5, Payments Under Fixed-
Price Construction Contract, shall not cover any amount therefor not
included in the contract price.
(End of clause)
452.236-70 Additive or Deductive Items.
As prescribed in 436.205, insert the following provision:
ADDITIVE OR DEDUCTIVE ITEMS (FEB. 1988)
The low bidder for purposes of award shall be the conforming
responsible bidder offering the low aggregate amount for the first
or base bid item, plus or minus (in the order of priority listed in
the schedule) those additive or deductive bid items providing the
most features of the work within the funds determined by the
government to be available before bids are opened. If addition of
another bid item in the listed order of priority would make the
award exceed such funds for all bidders, it shall be skipped and the
next subsequent additive bid item in a lower amount shall be added
if award therein can be made within such funds. For example, when
the amount available is $100,000 and a bidder's base bid and four
successive additives are $85,000, $10,000, $8,000, $6,000, and
$4,000, the aggregate amount of the bid for purposes of award would
be $99,000 for the base bid plus the first and fourth additives, the
second and third additives being skipped because of each of them
would cause the aggregate bid to exceed $100,000. In any case all
bids shall be evaluated on the basis of the same additive or
deductive bid items, determined as above provided. The listed order
of priority need be followed only for determining the low bidder.
After determination of the low bidder as stated, award in the best
interests of the Government may be made on the selected first or
base bid item and any combination of additive or deductive items for
which funds are determined to be available at the time of the award,
provided that award on such combination of bid items does not exceed
the amount offered by any other conforming responsible bidder for
the same combination of bid items.
(End of clause)
452.236-71 Prohibition Against the Use of Lead-Based Paint.
As prescribed in 436.571, insert the following clause:
PROHIBITION AGAINST THE USE OF LEAD-BASED PAINT (NOV 1996)
Neither the Contractor nor any subcontractor performing under
this contract shall use paints containing more then 0.06 of 1
percent lead by weight (calculated as lead metal) in the total
nonvolatile content of the paint, or the equivalent measure of lead
in the dried film of paint already applied, or both.
(End of clause)
452.236-72 Use of Premises.
As prescribed in 436.572, insert the following clause:
USE OF PREMISES (NOV 1996)
(a) Before any camp, quarry, borrow pit, storage, detour, or
bypass site, other than shown on the drawings, is opened or operated
on USDA land or lands administered by the USDA, the Contractor shall
obtain written permission from the Contracting Officer. A camp is
interpreted to include a campsite or trailer parking area of any
employee working on the project for the Contractor.
(b) Unless excepted elsewhere in the contract, the Contractor
shall (i) provide and maintain sanitation facilities for the work
force at the site and (ii) dispose of solid waste in accordance with
applicable Federal, State and local regulations.
(End of clause)
452.236-73 Archaeological or Historic Sites.
As prescribed in 436.573, insert the following clause:
ARCHAEOLOGICAL OR HISTORIC SITES (FEB 1988)
If a previously unidentified archaeological or historic site(s)
is encountered, the Contractor shall discontinue work in the general
area of the site(s) and notify the Contracting Officer immediately.
(End of clause)
452.236-74 Control of Erosion, Sedimentation, and Pollution.
As prescribed in 436.574, insert the following clause:
CONTROL OF EROSION, SEDIMENTATION, AND POLLUTION (NOV 1996)
(a) Operations shall be scheduled and conducted to minimize
erosion of soils and to prevent silting and muddying of streams,
rivers, irrigation systems, and impoundments (lakes, reservoirs,
etc.).
(b) Pollutants such as fuels, lubricants, bitumens, raw sewage,
and other harmful materials shall not be discharged on the ground;
into or nearby rivers, streams, or impoundments; or into natural or
man-made channels. Wash water or waste from concrete or aggregate
operations shall not be allowed to enter live streams prior to
treatment by filtration, settling, or other means sufficient to
reduce the sediment content to not more than that of the stream into
which it is discharged.
(c) Mechanized equipment shall not be operated in flowing
streams without written approval by the Contracting Officer.
(End of clause)
452.236-75 Maximum Workweek--Construction Schedule.
As prescribed in 436.575, insert the following clause:
MAXIMUM WORKWEEK--CONSTRUCTION SCHEDULE (NOV 1996)
Within ____ calendar days after receipt of a written request
from the Contracting Officer, the Contractor must submit the
following in writing for approval:
(a) A schedule as required by FAR clause 52.236-15, Schedules
for Construction Contracts, and
(b) The hours (including the daily starting and stopping times)
and days of the week the Contractor proposes to carry out the work.
The maximum workweek that will be approved is ______*.
(End of clause)
*Contracting Officer shall insert appropriate number of days and
hours and/or days.
452.236-76 Samples and Certificates.
As prescribed in 436.576, insert the following clause:
SAMPLES AND CERTIFICATES (FEB 1988)
When required by the specifications or the Contracting Officer,
samples, certificates, and
[[Page 53675]]
test data shall be submitted after award of the contract, prepaid,
in time for proper action by the Contracting Officer or his/her
designated representative. Certificates and test data shall be
submitted in triplicate to show compliance with materials and
construction specified in the contract performance requirements.
Samples shall be submitted in duplicate by the Contractor,
except as otherwise specified, to show compliance with the contract
requirements. Materials or equipment for which samples,
certifications or test data are required shall not be used in the
work until approved in writing by the Contracting Officer.
(End of clause)
452.236-77 Emergency Response.
As prescribed in 436.577, the following clause may be used in
Forest Service construction contracts:
EMERGENCY RESPONSE (NOV 1996)
(a) Contractor's Responsibility for Fire Fighting. (1) The
Contractor, under the provisions of FAR clause 52.236-9, PROTECTION
OF EXISTING VEGETATION, STRUCTURES, EQUIPMENT, UTILITIES, AND
IMPROVEMENTS, shall immediately extinguish all fires on the work
site other than those fires in use as a part of the work. (2) The
Contractor may be held liable for all damages and for all costs
incurred by the Government for labor, subsistence, equipment,
supplies, and transportation deemed necessary to control or suppress
a fire set or caused by the Contractor or the Contractor's agents or
employees.
(b) Contractor's Responsibility for Notification in Case of
Fire. The Contractor shall immediately notify the Government of any
fires sighted on or in the vicinity of the work site.
(c) Contractor's Responsibility for Responding to Emergencies.
When directed by the Contracting Officer, the Contractor shall allow
the Government to temporarily use employees and equipment from the
work site for emergency work (anticipated to be restricted to fire
fighting). An equitable adjustment for the temporary use of
employees and equipment will be made under the CHANGES clause, FAR
52.243-4.
(End of clause)
452.236-78 Forest Service Standard Specifications for Construction of
Roads and Bridges.
As prescribed in 436.578, insert the following clause:
FOREST SERVICE STANDARD SPECIFICATIONS FOR CONSTRUCTION OF ROADS AND
BRIDGES (NOV 1996)
The Forest Service Standard Specifications for Construction of
Roads and Bridges, XXXX 199X are included by reference. The
requirements contained in these specifications are hereby made a
part of this solicitation and any resultant contract.
(End of Clause)
452.236-79 Opted Timber Sale Road Requirements.
As prescribed in 436.579, insert the following clause:
OPTED TIMBER SALE ROAD REQUIREMENTS (NOV 1996)
This contract is for the construction of timber sale road(s)
which a timber purchaser has opted to have the Government construct.
The Government is obligated to make these roads available to the
timber purchaser by ______*. Failure to make these roads available
by this date could result in Government liability for delay to the
timber purchaser for which the Contractor might become liable should
the Contractor fail to complete this contract within the specified
and allowed contract time.
(End of clause)
*Contracting Officer shall insert appropriate date.
452.236-80 Firms Ineligible for Award--Construction.
As prescribed in 436.670, insert the following clause:
Firms Ineligible for Award--Construction (NOV 1996)
The firm(s) and its subsidiaries or affiliates signatory to this
contract shall be ineligible for award of any construction contract
resulting from the design work performed under this contract.
(End of clause)
452.237-70 Loss, Damage, Destruction or Repair.
(a) As prescribed in 437.110(a), insert a clause substantially as
follows:
LOSS, DAMAGE, DESTRUCTION OR REPAIR (FEB 1988)
(a) For equipment furnished under this contract without
operator, the Government will assume liability for any loss, damage
or destruction of such equipment, not to exceed a total of $______*
except that no reimbursement will be made for loss, damage or
destruction due to (1) ordinary wear or tear, (2) mechanical
failure, or (3) the fault or negligence of the Contractor or the
Contractor's agents or employees.
(b) For equipment furnished under this contract with operator,
the Government shall not be liable for any loss, damage or
destruction of such equipment, except for loss, damage or
destruction resulting from the negligent or wrongful act(s) of
Government employee(s) while acting within the scope of their
employment.
(c) All repairs to equipment furnished under this contract shall
be made by the Contractor and reimbursement, if any, shall be
determined in accordance with (a) or (b) above. Repairs shall be
made promptly and equipment returned to use within ______** hours.
In lieu of repairing equipment, the Contractor may furnish similar
replacement equipment within the time specified. The Contractor may
authorize the Government to make repairs upon the request of the
Contracting Officer. In such case, the Contractor will be billed for
labor and parts costs.
(End of Clause)
*Contracting Officer shall insert amount available in current
funds to cover potential liability.
**Contracting Officer shall insert appropriate number of hours.
452.237-71 Pre-Bid/Pre-Proposal Conference.
As prescribed in 437.110(b), insert a provision substantially as
follows:
PRE-BID/PRE-PROPOSAL CONFERENCE (FEB 1988)
(a) The Government is planning a pre-bid/pre-proposal
conference, during which potential offerors may obtain a better
understanding of the work required.
(b) Offerors are encouraged to submit all questions in writing
at least five (5) days prior to the conference. Questions will be
considered at any time prior to or during the conference; however,
offerors will be asked to confirm verbal questions in writing.
Subsequent to the conference, an amendment to the solicitation
containing an abstract of the questions and answers, and a list of
attendees, will be disseminated.
(c) In order to facilitate conference preparations, it is
requested that the person named on the Standard Form 33 of this
solicitation be contacted and advised of the number of persons who
will attend.
(d) The Government assumes no responsibility for any expense
incurred by an offeror prior to contract award.
(e) Offerors are cautioned that, notwithstanding any remarks or
clarifications given at the conference, all terms and conditions of
the solicitation remain unchanged unless they are changed by
amendment to the solicitation. If the answers to conference
questions, or any solicitation amendment, create ambiguities, it is
the responsibility of the offeror to seek clarification prior to
submitting an offer.
(f) The conference will be held:
Date:------------------------------------------------------------------
Time:------------------------------------------------------------------
Location:--------------------------------------------------------------
(End of Clause)
452.237-73 Equipment Inspection Visit.
As prescribed in 437.110(c), insert the following provision:
EQUIPMENT INSPECTION VISIT (FEB 1988)
Offerors are urged and expected to inspect the equipment on
which maintenance or repairs are to be performed and to satisfy
themselves regarding all conditions that may affect the cost of
contract performance, to the extent that the information is
reasonably obtainable. In no event shall failure to inspect the
equipment constitute grounds for a claim after contract award.
Offerors are invited to inspect the ______* at ______* by
telephoning ______* on ______* for an appointment.
(End of Clause)
*Contracting Officer shall insert appropriate data.
[[Page 53676]]
452.237-74 Key Personnel.
As prescribed in 437.110(d), insert a clause substantially as
follows:
KEY PERSONNEL (FEB 1988)
(a) The Contractor shall assign to this contract the following
key personnel: __________
(b) During the first ninety (90) days of performance, the
Contractor shall make no substitutions of key personnel unless the
substitution is necessitated by illness, death, or termination of
employment. The Contractor shall notify the Contracting Officer
within 15 calendar days after the occurrence of any of these events
and provide the information required by paragraph (c) below. After
the initial 90-day period, the Contractor shall submit the
information required by paragraph (c) to the Contracting Officer at
least 15 days prior to making any permanent substitutions.
(c) The Contractor shall provide a detailed explanation of the
circumstances necessitating the proposed substitutions, complete
resumes for the proposed substitutes, and any additional information
requested by the Contracting Officer. Proposed substitutes should
have comparable qualifications to those of the persons being
replaced. The Contracting Officer will notify the Contractor within
15 calendar days after receipt of all required information of the
decision on substitutions. The contract will be modified to reflect
any approved changes of key personnel.
(End of Clause)
452.237-75 Restrictions Against Disclosure.
As prescribed in 437.110(e), insert a clause substantially as
follows:
RESTRICTIONS AGAINST DISCLOSURE (FEB 1988)
(a) The Contractor agrees, in the performance of this contract,
to keep all information contained in source documents or other media
furnished by the Government in the strictest confidence. The
Contractor also agrees not to publish or otherwise divulge such
information in whole or in part in any manner or form, or to
authorize or permit others to do so, taking such reasonable measures
as are necessary to restrict access to such information while in the
Contractor's possession, to those employees needing such information
to perform the work provided herein, i.e., on a ``need to know''
basis. The Contractor agrees to immediately notify in writing, the
Contracting Officer, named herein, in the event that the Contractor
determines or has reason to suspect a breach of this requirement.
(b) The Contractor agrees not to disclose any information
concerning the work under this contract to any persons or individual
unless prior written approval is obtained from the Contracting
Officer. The Contractor agrees to insert the substance of this
clause in any consultant agreement or subcontract hereunder.
(End of Clause)
452.237-76 Progress Reporting.
As prescribed in 437.270(a), insert a clause substantially as
follows:
PROGRESS REPORTING (FEB 1988)
The Contractor shall submit a progress report ______*, covering
work accomplished during that period of the contract performance.
The progress report shall be brief and factual and shall be prepared
in accordance with the following format:
(a) A cover page containing:
(1) Contract number and title;
(2) Type of report, sequence number of report, and period of
performance being reported;
(3) Contractor's name and address;
(4) Author(s); and
(5) Date of report.
(b) Section I--An introduction covering the purpose and scope of
the contract effort. This shall be limited to one paragraph in all
but the first and final month's narrative.
(c) Section II--A description of overall progress plus a
separate description of each task or other logical segment of work
on which effort was expended during the report period. The
description shall include pertinent data and/or graphs in sufficient
detail to explain any significant results achieved.
(d) Section III--A description of current technical or
substantive performance, and any problem(s) which may impede
performance along with proposed corrective action.
(e) Section IV--A planning schedule shall be included with the
first progress report for all assigned tasks required under the
contract, along with the estimated starting and completion dates for
each task. The planning schedule shall be updated and submitted with
each subsequent technical progress report, including an explanation
of any difference between actual progress and planned progress, why
the differences have occurred, and--if behind planned progress--what
corrective steps are planned.
(f) Section V--If applicable, financial information shall be
submitted for each major task or line item cost.
Data shall include:
(1) The total estimated cost budgeted (fee excluded).
(2) The estimated cost expended during the current reporting
period.
(3) Identification of direct labor hours of prime contractor and
subcontractor(s) and/or consultant(s), if applicable.
(4) Total project to-date expenditures.
(5) Total remaining funds.
(End of Clause)
*Contracting Officer shall insert frequency of reporting
requirement.
452.237-78 Contracts with Consulting Firms for Services.
As prescribed in 437.270(b), insert a clause substantially as
follows:
CONTRACTS WITH CONSULTING FIRMS FOR SERVICES (FEB 1988)
Offerors are specifically cautioned that any firm(s) receiving a
contract award to provide the services described herein will be
prohibited from competing for or receiving a follow-on contract to
perform ______.*
(End of Clause)
* Contracting Officer shall insert the appropriate information.
452.246-70 Inspection and Acceptance.
As prescribed in 446.370, insert the following clause:
INSPECTION AND ACCEPTANCE (FEB 1988)
(a) The Contracting Officer or the Contracting Officer's duly
authorized representative will inspect and accept the supplies and/
or services to be provided under this contract.
(b) Inspection and acceptance will be performed at: ______.*
(End of clause)
* Contracting Officer shall insert appropriate identifying data.
Alternate I (FEB 1988). As prescribed in 446.370, substitute a
paragraph (b) and add a paragraph (c):
(b) Inspection will be performed at: ______.*
(c) Acceptance will be performed at: ______.*
(End of clause)
452.247-70 Delivery Location.
As prescribed in 447.302, insert a clause substantially as follows:
DELIVERY LOCATION (FEB 1988)
Shipment of deliverable items, other than reports, shall be to:
______.*
(End of Clause)
* Contracting Officer shall insert appropriate identifying data.
452.247-71 Marking Deliverables.
As prescribed in 447.305-10(a), insert a clause substantially as
follows:
MARKING DELIVERABLES (FEB 1988)
(a) The contract number shall be placed on or adjacent to all
exterior mailing or shipping labels of deliverable items called for
by the contract.
(b) Mark deliverables, except reports, for: ______.*
(End of Clause)
* Contracting Officer shall insert the appropriate information.
452.247-72 Packing for Domestic Shipment.
As prescribed in 447.305-10(b), insert the following clause:
PACKING FOR DOMESTIC SHIPMENT (FEB 1988)
Material shall be packed for shipment in such a manner that will
insure acceptance by common carriers and safe delivery at
destination. Containers and closures shall comply with the
Interstate Commerce Commission regulations, Uniform Freight
Classification Rules, or regulations of other carriers as applicable
to the mode of transportation.
[[Page 53677]]
(End of Clause)
452.247-73 Packing for Overseas Shipment.
As prescribed in 447.305-10(c), insert the following clause:
PACKING FOR OVERSEAS SHIPMENT (FEB 1988)
Supplies shall be packed for overseas shipment in accordance
with the best commercial export practice suitable for water movement
to arrive undamaged at ultimate destination.
(End of Clause)
PART 453--FORMS
Sec.
453.000 Scope of part.
Subpart 453.1--General
453.103 Exceptions.
453.108 Recommendations concerning forms.
Subpart 453.2--Prescription of Forms
453.200 Scope of subpart.
453.213 Simplified Acquisition and other simplified purchase
procedures (AD-838).
453.270 Request for contract action (AD-700).
Subpart 453.3--Illustrations of Forms
453.300 Scope of subpart.
453.303 Agency forms.
453.303-700 Procurement Request (AD-700).
453.303-838 Purchase Order (AD-838).
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Sec. 453.000 Scope of part.
This part:
(a) Prescribes USDA (AD) forms for use in acquisition,
(b) Contains requirements and information generally applicable to
AD forms and forms prescribed by FAR part 53, and
(c) Illustrates AD forms.
Subpart 453.1--General
453.103 Exceptions.
(a) The contracting officer shall submit a request for exceptions
to forms prescribed in FAR part 53 through the head of the contracting
activity (HCA) to the Senior Procurement Executive (SPE) for referral
to the GSA.
(b) Requests for exceptions to AD forms prescribed in part 453
shall be handled as individual or class deviations, as appropriate (see
subpart 401.4).
453.108 Recommendations concerning forms.
Contracting officers shall submit recommendations for new forms or
to revise, eliminate, or consolidate forms prescribed by FAR part 53
and part 453 through the HCA to the SPE.
Subpart 453.2--Prescription of Forms
453.200 Scope of subpart.
This subpart prescribes USDA (AD) forms for use in acquisition.
Consistent with the approach used in FAR subpart 53.2, this subpart is
arranged by subject matter, in the same order as, and keyed to, the
parts of the AGAR in which the form usage requirements are addressed.
453.213 Simplified Acquisition and other simplified purchase
procedures (AD-838).
Form AD-838, Purchase Order, is prescribed for use as a Simplified
Acquisition Procedure/delivery order/task order document in lieu of OF
347 and OF 348 (see 413.505-1).
453.270 Request for contract action (AD-700).
Form AD-700, Procurement Request, may be used as a contract
requisition document by contracting activities in USDA.
Subpart 453.3--Illustrations of Forms
453.300 Scope of subpart.
This subpart contains illustrations of USDA (AD) forms for use in
acquisitions.
Forms are not illustrated in the Federal Register or Code of
Federal Regulations. Individual copies may be obtained from any USDA
contracting activity or the office of the SPE.
453.303 Agency forms.
453.303-700 Procurement Request (AD-700).
453.303-838 Purchase Order (AD-838).
[FR Doc. 96-25427 Filed 10-11-96; 8:45 am]
BILLING CODE 3410-98-P
