[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapter 2 (Parts 201 to 299)
Revised as of October 1, 2013
Containing a codification of documents of general
applicability and future effect
As of October 1, 2013
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 2--Defense Acquisition Regulations System,
Department of Defense 3
Finding Aids:
Table of CFR Titles and Chapters........................ 619
Alphabetical List of Agencies Appearing in the CFR...... 639
List of CFR Sections Affected........................... 649
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 201.104
refers to title 48, part
201, section 104.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
For a legal interpretation or explanation of any regulation in this
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Charles A. Barth,
Director,
Office of the Federal Register.
October 1, 2013.
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
seven volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and
chapter 29 to end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2013.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapter 2, parts 201 to 299)
--------------------------------------------------------------------
Part
chapter 2--Defense Acquisition Regulations System,
Department of Defense..................................... 201
[[Page 3]]
CHAPTER 2--DEFENSE ACQUISITION REGULATIONS SYSTEM, DEPARTMENT OF DEFENSE
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL
Part Page
201 Federal Acquisition Regulations System...... 7
202 Definitions of words and terms.............. 13
203 Improper business practices and personal
conflicts of interest................... 15
204 Administrative matters...................... 21
SUBCHAPTER B--ACQUISITION PLANNING
205 Publicizing contract actions................ 38
206 Competition requirements.................... 40
207 Acquisition planning........................ 42
208 Required sources of supplies and services... 48
209 Contractor qualifications................... 54
210 Market research............................. 65
211 Describing agency needs..................... 66
212 Acquisition of commercial items............. 71
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
213 Simplified acquisition procedures........... 80
214 Sealed bidding.............................. 83
215 Contracting by negotiation.................. 84
216 Types of contracts.......................... 103
217 Special contracting methods................. 110
218 Emergency acquisitions...................... 126
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
219 Small business programs..................... 130
222 Application of labor laws to Government
acquisitions............................ 139
223 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 149
[[Page 4]]
224 Protection of privacy and freedom of
information............................. 154
225 Foreign acquisition......................... 155
226 Other socioeconomic programs................ 203
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
227 Patents, data, and copyrights............... 207
228 Bonds and insurance......................... 249
229 Taxes....................................... 252
230 Cost accounting standards administration.... 254
231 Contract cost principles and procedures..... 254
232 Contract financing.......................... 259
233 Protests, disputes, and appeals............. 272
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
234 Major system acquisition.................... 274
235 Research and development contracting........ 278
236 Construction and architect-engineer
contracts............................... 282
237 Service contracting......................... 287
239 Acquisition of information technology....... 303
241 Acquisition of utility services............. 308
SUBCHAPTER G--CONTRACT MANAGEMENT
242 Contract administration and audit services.. 311
243 Contract modifications...................... 324
244 Subcontracting policies and procedures...... 326
245 Government property......................... 329
246 Quality assurance........................... 336
247 Transportation.............................. 346
249 Termination of contracts.................... 354
250 Extraordinary contractual actions and the
Safety Act.............................. 357
251 Use of Government sources by contractors.... 359
SUBCHAPTER H--CLAUSES AND FORMS
252 Solicitation provisions and contract clauses 360
253 Forms....................................... 579
SUBCHAPTER I--AGENCY SUPPLEMENTARY REGULATIONS
Appendix A--Armed Services Board of Contract
Appeals................................. 581
Appendixes B-E [Reserved]
Appendix F--Material Inspection and
Receiving Report........................ 591
Appendix G [Reserved]
Appendix H--Debarment and Suspension
Procedures.............................. 608
[[Page 5]]
Appendix I--Policy and Procedures for the
DoD Pilot Mentor-Protege Program........ 609
[[Page 7]]
SUBCHAPTER A_GENERAL
PART 201_FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 201.1_Purpose, Authority, Issuance
Sec.
Sec. 201.104 Applicability.
Sec. 201.105 Issuance.
Sec. 201.105-3 Copies.
Sec. 201.107 Certifications.
Sec. 201.109 Statutory acquisition-related dollar thresholds-adjustment
for inflation.
Sec. 201.170 Peer Reviews.
Subpart 201.2_Administration
Sec. 201.201 Maintenance of the FAR.
Sec. 201.201-1 The two councils.
Sec. 201.201-70 Maintenance of Procedures, Guidance, and Information.
Subpart 201.3_Agency Acquisition Regulations
Sec. 201.301 Policy.
Sec. 201.303 Publication and codification.
Sec. 201.304 Agency control and compliance procedures.
Subpart 201.4_Deviations From the FAR
Sec. 201.402 Policy.
Sec. 201.403 Individual deviations.
Sec. 201.404 Class deviations.
Subpart 201.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 201.602 Contracting officers.
Sec. 201.602-2 Responsibilities.
Sec. 201.602-70 Contract clause.
Sec. 201.603 Selection, appointment, and termination of appointment.
Sec. 201.603-2 Selection.
Sec. 201.603-3 Appointment.
Sec. 201.670 Appointment of property administrators and plant clearance
officers.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36284, July 31, 1991, unless otherwise noted.
Subpart 201.1_Purpose, Authority, Issuance
Sec. 201.104 Applicability.
The FAR and the Defense Federal Acquisition Regulation Supplement
(DFARS) also apply to purchases and contracts by DoD contracting
activities made in support of foreign military sales or North Atlantic
Treaty Organization cooperative projects without regard to the nature or
sources of funds obligated, unless otherwise specified in this
regulation.
[56 FR 36284, July 31, 1991. Redesignated at 64 FR 39430, July 22, 1999]
Sec. 201.105 Issuance.
Sec. 201.105-3 Copies.
The DFARS and the DFARS Procedures, Guidance, and Information (PGI)
are available electronically via the World Wide Web at http://
www.acq.osd.mil/dpap/dars/index.htm.
[69 FR 63326, Nov. 1, 2004]
Sec. 201.107 Certifications.
In accordance with 41 U.S.C. 1304, a new requirement for a
certification by a contractor or offeror may not be included in the
DFARS unless--
(1) The certification requirement is specifically imposed by
statute; or
(2) Written justification for such certification is provided to the
Secretary of Defense by the Under Secretary of Defense (Acquisition,
Technology, and Logistics), and the Secretary of Defense approves in
writing the inclusion of such certification requirement.
[63 FR 11528, Mar. 9, 1998, as amended at 65 FR 39704, June 27, 2000; 76
FR 58137, Sept. 20, 2011; 77 FR 35879, June 15, 2012]
Sec. 201.109 Statutory acquisition-related dollar thresholds-adjustment
for inflation.
(a) Section 814(b) of the National Defense Authorization Act for
Fiscal Year 2012 (Pub. L. 112-81) requires that the threshold
established in 10 U.S.C. 2253(a)(2) for the acquisition of right-hand
drive passenger sedans be included in the list of dollar thresholds that
are subject to adjustment for inflation in accordance with the
requirements of 41 U.S.C. 1908, and is adjusted pursuant to such
provisions, as appropriate.
[[Page 8]]
(d) A matrix showing the most recent escalation adjustments of
statutory acquisition-related dollar thresholds is available at PGI
201.109.
[71 FR 75892, Dec. 19, 2006, as amended at 77 FR 19128, Mar. 30, 2012]
Sec. 201.170 Peer reviews.
(a) DoD peer reviews. (1) The Office of the Director, Defense
Procurement and Acquisition Policy, will organize teams of reviewers and
facilitate peer reviews for solicitations and contracts, as follows
using the procedures at PGI 201.170--
(i) Preaward peer reviews for competitive procurements will be
conducted in three phases for all solicitations valued at $1 billion or
more;
(ii) Preaward peer reviews for noncompetitive procurements will be
conducted in two phases for new contract actions valued at $500 million
or more; and
(iii) Postaward peer reviews will be conducted for all contracts for
services valued at $1 billion or more.
(2) To facilitate planning for peer reviews, the military
departments and defense agencies shall provide a rolling annual forecast
of acquisitions at the end of each quarter (i.e., March 31; June 30;
September 30; December 31), to the Deputy Director, Defense Procurement
and Acquisition Policy (Contract Policy and International Contracting)
via email to osd.pentagon.ousd-atl.mbx.peer-reviews@mail
(b) Component peer reviews. The military departments and defense
agencies shall establish procedures for--
(1) Preaward peer reviews of solicitations for competitive
procurements valued at less than $1 billion;
(2) Preaward peer reviews for noncompetitive procurements valued at
less than $500 million; and
(3) Postaward peer reviews of all contracts for services valued at
less than $1 billion.
[77 FR 19126, Mar. 30, 2012, as amended at 78 FR 54968, Sept. 9, 2013]
Subpart 201.2_Administration
Sec. 201.201 Maintenance of the FAR.
Sec. 201.201-1 The two councils.
(c) The composition and operation of the DAR Council is prescribed
in DoD Instruction 5000.35, Defense Acquisition Regulations (DAR)
System.
(d)(i) Departments and agencies process proposed revisions of FAR or
DFARS through channels to the Director of the DAR Council. Process the
proposed revision as a memorandum in the following format, addressed to
the Director, DAR Council, OUSD(AT&L), 3060 Defense Pentagon,
Washington, DC 20301-3060; datafax (571) 372-6094:
I. PROBLEM: Succinctly state the problem created by current FAR and/
or DFARS coverage and describe the factual and/or legal reasons
necessitating the change to the regulation.
II. Recommendation: Identify the FAR and/or DFARS citations to be
revised. Attach as TAB A a copy of the text of the existing coverage,
conformed to include the proposed additions and deletions. Indicate
deleted coverage with dashed lines through the current words being
deleted and insert proposed language in brackets at the appropriate
locations within the existing coverage. If the proposed deleted portion
is extensive, it may be outlined by lines forming a box with diagonal
lines drawn connecting the corners.
III. Discussion: Include a complete, convincing explanation of why
the change is necessary and how the recommended revision will solve the
problem. Address advantages and disadvantages of the proposed revision,
as well as any cost or administrative impact on Government activities
and contractors. Identify any potential impact of the change on
automated systems, e.g., automated financial and procurement systems.
Provide any other background information that would be helpful in
explaining the issue.
IV. Collaterals: Address the need for public comment (FAR 1.301(b)
and subpart 1.5), the Paperwork Reduction Act, and the Regulatory
Flexibility Act (FAR 1.301(c)).
V. Deviations: If a recommended revision of DFARS is a FAR
deviation, identify the deviation and include under separate TAB a
justification for the deviation that addresses the requirements of
201.402(2). The justification should be in the form of a memorandum for
the Director of Defense Procurement and Acquisition Policy, Office of
the Under Secretary of Defense (Acquisition, Technology, and Logistics).
[[Page 9]]
(ii) The public may offer proposed revisions of FAR or DFARS by
submission of a memorandum, in the format (including all of the
information) prescribed in paragraph (d)(i) of this subsection, to the
Director of the DAR Council.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
61 FR 50451, Sept. 26, 1996; 63 FR 11528, Mar. 9, 1998; 65 FR 6552, Feb.
10, 2000; 68 FR 7439, Feb. 14, 2003; 73 FR 70906, Nov. 24, 2008; 77 FR
76937, Dec. 31, 2012; 78 FR 13543, Feb. 28, 2013]
Sec. 201.201-70 Maintenance of Procedures, Guidance, and Information.
The DAR Council is also responsible for maintenance of the DFARS
Procedures, Guidance, and Information (PGI).
[69 FR 63326, Nov. 1, 2004]
Subpart 201.3_Agency Acquisition Regulations
Sec. 201.301 Policy.
(a)(1) DoD implementation and supplementation of the FAR is issued
in the Defense Federal Acquisition Regulation Supplement (DFARS) under
authorization and subject to the authority, direction, and control of
the Secretary of Defense. The DFARS contains--
(i) Requirements of law;
(ii) DoD-wide policies;
(iii) Delegations of FAR authorities;
(iv) Deviations from FAR requirements; and
(v) Policies/procedures that have a significant effect beyond the
internal operating procedures of DoD or a significant cost or
administrative impact on contractors or offerors.
(2) Relevant procedures, guidance, and information that do not meet
the criteria in paragraph (a)(1) of this section are issued in the DFARS
Procedures, Guidance, and Information (PGI).
(b) When Federal Register publication is required for any policy,
procedure, clause, or form, the department or agency requesting Under
Secretary of Defense (Acquisition, Technology, and Logistics) (USD
(AT&L)) approval for use of the policy, procedure, clause, or form (see
201.304(1)) must include an analysis of the public comments in the
request for approval.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
65 FR 6552, Feb. 10, 2000; 69 FR 63326, Nov. 1, 2004]
Sec. 201.303 Publication and codification.
(a)(i) The DFARS is codified under chapter 2 in title 48, Code of
Federal Regulations.
(ii) To the extent possible, all DFARS text (whether implemental or
supplemental) is numbered as if it were implemental. Supplemental
numbering is used only when the text cannot be integrated intelligibly
with its FAR counterpart.
(A) Implemental numbering is the same as its FAR counterpart, except
when the text exceeds one paragraph, the subdivisions are numbered by
skipping a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence.
For example, three paragraphs implementing FAR 19.501 would be numbered
219.501 (1), (2), and (3) rather than (a), (b), and (c). Three
paragraphs implementing FAR 19.501(a) would be numbered 219.501(a) (i),
(ii), and (iii) rather than (a) (1), (2), and (3). Further subdivision
of the paragraphs follows the prescribed numbering sequence, e.g.,
219.501(1)(i)(A)(1)(i).
(B) Supplemental numbering is the same as its FAR counterpart, with
the addition of a number of 70 and up or (S-70) and up. Parts, subparts,
sections, or subsections are supplemented by the addition of a number of
70 and up. Lower divisions are supplemented by the addition of a number
of (S-70) and up. When text exceeds one paragraph, the subdivisions are
numbered using the FAR 1.105-2(b)(2) prescribed sequence, without
skipping a unit. For example, DFARS text supplementing FAR 19.501 would
be numbered 219.501-70. Its subdivisions would be numbered 219.501-70
(a), (b), and (c).
(C) Subdivision numbering below the 4th level does not repeat the
numbering sequence. It uses italicized Arabic numbers and then
italicized lower case Roman numerals.
(D) An example of DFARS numbering is in Table 1-1, DFARS Numbering.
(iii) Department/agency and component supplements must parallel the
FAR and DFARS numbering, except
[[Page 10]]
department/agency supplemental numbering uses subsection numbering of 90
and up, instead of 70 and up.
Table 1-1--DFARS Numbering
------------------------------------------------------------------------
FAR Is implemented as Is supplemented as
------------------------------------------------------------------------
19 219 219.70
19.5 219.5 219.570
19.501 219.501 219.501-70
19.501-1 219.501-1 219.501-1-70
19.501-1(a) 219.501-1(a) 219.501-1(a)(S-70)
19.501-1(a)(1) 219.501-1(a)(1) 219.501-1(a)(1)(S-70)
------------------------------------------------------------------------
[56 FR 36284, July 31, 1991, as amended at 64 FR 51074, Sept. 21, 1999]
Sec. 201.304 Agency control and compliance procedures.
Departments and agencies and their component organizations may issue
acquisition regulations as necessary to implement or supplement the FAR
or DFARS.
(1)(i) Approval of the USD (AT&L) is required before including in a
department/agency or component supplement, or any other contracting
regulation document such as a policy letter or clause book, any policy,
procedure, clause, or form that--
(A) Has a significant effect beyond the internal operating
procedures of the agency; or
(B) Has a significant cost or administrative impact on contractors
or offerors.
(ii) Except as provided in paragraph (2) of this section, the
USD(AT&L) has delegated authority to the Director of Defense Procurement
and Acquisition Policy (OUSD(AT&L)DPAP) to approve or disapprove the
policies, procedures, clauses, and forms subject to paragraph (1)(i) of
this section.
(2) In accordance with 41 U.S.C. 1304, a new requirement for a
certification by a contractor or offeror may not be included in a
department/agency or component procurement regulation unless--
(i) The certification requirement is specifically imposed by
statute; or
(ii) Written justification for such certification is provided to the
Secretary of Defense by USD(AT&L), and the Secretary of Defense approves
in writing the inclusion of such certification requirement.
(3) Contracting activities must obtain the appropriate approval (see
201.404) for any class deviation (as defined in FAR subpart 1.4) from
the FAR or DFARS, before its inclusion in a department/agency or
component supplement or any other contracting regulation document such
as a policy letter or clause book.
(4) Each department and agency must develop and, upon approval by
OUSD(AT&L)DPAP, implement, maintain, and comply with a plan for
controlling the use of clauses other than those prescribed by FAR or
DFARS.
(5) Departments and agencies must submit requests for the Secretary
of Defense, USD(AT&L), and OUSD(AT&L)DPAP approvals required by this
section through the Director of the DAR Council.
(6) The Director of Defense Procurement publishes changes to the
DFARS in the Federal Register and electronically via the World Wide Web.
Each change includes an effective date. Unless guidance accompanying a
change states otherwise, contracting officers must include any new or
revised clauses, provisions, or forms in solicitations issued on or
after the effective date of the change.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
63 FR 11528, Mar. 9, 1998; 64 FR 39430, July 22, 1999; 65 FR 6552, Feb.
10, 2000; 68 FR 7439, Feb. 14, 2003; 76 FR 58137, Sept. 20, 2011; 77 FR
35879, June 15, 2012]
Subpart 201.4_Deviations From the FAR
Sec. 201.402 Policy.
(1) The Director of Defense Procurement and Acquisition Policy,
Office of the Under Secretary of Defense (Acquisition, Technology, and
Logistics) (OUSD(AT&L)DPAP), is the approval authority within DoD for
any individual or class deviation from--
(i) FAR 3.104, Procurement Integrity, or DFARS 203.104, Procurement
Integrity;
(ii) FAR Subpart 27.4, Rights in Data and Copyrights, or DFARS
Subpart 227.4, Rights in Data and Copyrights;
(iii) FAR part 30, Cost Accounting Standards Administration, or
DFARS part 230, Cost Accounting Standards Administration;
[[Page 11]]
(iv) FAR subpart 31.1, Applicability, or DFARS subpart 231.1,
Applicability (contract cost principles);
(v) FAR subpart 31.2, Contracts with Commercial Organizations, or
DFARS subpart 231.2, Contracts with Commercial Organizations; or
(vi) FAR part 32, Contract Financing (except subparts 32.7 and 32.8
and the payment clauses prescribed by subpart 32.1), or DFARS part 232,
Contract Financing (except subparts 232.7 and 232.8).
(2) Submit requests for deviation approval through department/agency
channels to the approval authority in paragraph (1) of this section,
201.403, or 201.404, as appropriate. Submit deviations that require
OUSD(AT&L)DPAP approval through the Director of the DAR Council. At a
minimum, each request must--
(i) Identify the department/agency, and component if applicable,
requesting the deviation;
(ii) Identify the FAR or DFARS citation from which a deviation is
needed, state what is required by that citation, and indicate whether an
individual or class deviation is requested;
(iii) Describe the deviation and indicate which of paragraphs (a)
through (f) of FAR 1.401 best categorizes the deviation;
(iv) State whether the deviation will have a significant effect
beyond the internal operating procedures of the agency and/or a
significant cost or administrative impact on contractors or offerors,
and give reasons to support the statement;
(v) State the period of time for which the deviation is required;
(vi) State whether approval for the same deviation has been received
previously, and if so, when;
(vii) State whether the proposed deviation was published (see FAR
subpart 1.5 for publication requirements) in the Federal Register and
provide analysis of comments;
(viii) State whether the request for deviation has been reviewed by
legal counsel, and if so, state results; and
(ix) Give detailed rationale for the request. State what problem or
situation will be avoided, corrected, or improved if request is
approved.
[56 FR 36284, July 31, 1991, as amended at 60 FR 61591, Nov. 30, 1995;
61 FR 50451, Sept. 26, 1996; 64 FR 8727, Feb. 23, 1999; 65 FR 6552, Feb.
10, 2000; 68 FR 7439, Feb. 14, 2003]
Sec. 201.403 Individual deviations.
(1) Individual deviations, except those described in 201.402(1) and
paragraph (2) of this section, must be approved in accordance with the
department/agency plan prescribed by 201.304(4).
(2) Contracting officers outside the United States may deviate from
prescribed nonstatutory FAR and DFARS clauses when--
(i) Contracting for support services, supplies, or construction,
with the governments of North Atlantic Treaty Organization (NATO)
countries or other allies (as described in 10 U.S.C. 2341(2)), or with
United Nations or NATO organizations; and
(ii) Such governments or organizations will not agree to the
standard clauses.
[65 FR 6552, Feb. 10, 2000]
Sec. 201.404 Class deviations.
(b)(i) Except as provided in paragraph (b)(ii) of this section,
OUSD(AT&L)DPAP is the approval authority within DoD for any class
deviation.
(ii) The senior procurement executives for the Army, Navy, and Air
Force, and the Directors of the Defense Commissary Agency, the Defense
Contract Management Agency, and the Defense Logistics Agency, may
approve any class deviation, other than those described in 201.402(1),
that does not--
(A) Have a significant effect beyond the internal operating
procedures of the department or agency;
(B) Have a significant cost or administrative impact on contractors
or offerors;
(C) Diminish any preference given small business concerns by the FAR
or DFARS; or
(D) Extend to requirements imposed by statute or by regulations of
other agencies such as the Small Business
[[Page 12]]
Administration and the Department of Labor.
[65 FR 6552, Feb. 10, 2000, as amended at 65 FR 52951, Aug. 31, 2000; 68
FR 7439, Feb. 14, 2003]
Subpart 201.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 201.602 Contracting officers.
Sec. 201.602-2 Responsibilities.
(1) Follow the procedures at PGI 201.602-2 regarding designation,
assignment, and responsibilities of a contracting officer's
representative (COR).
(2) A COR--
(i) Must be an employee, military or civilian, of the U.S.
Government, a foreign government, or a North Atlantic Treaty
Organization/coalition partner. In no case shall contractor personnel
serve as CORs;
(ii) Must be qualified by training and experience commensurate with
the responsibilities to be delegated in accordance with department/
agency guidelines;
(iii) May not be delegated responsibility to perform functions at a
contractor's location that have been delegated under FAR 42.202(a) to a
contract administration office;
(iv) Has no authority to make any commitments or changes that affect
price, quality, quantity, delivery, or other terms and conditions of the
contract; and
(v) Must be designated in writing, and a copy furnished the
contractor and the contract administration office--
(A) Specifying the extent of the COR's authority to act on behalf of
the contracting officer;
(B) Identifying the limitations on the COR's authority;
(C) Specifying the period covered by the designation;
(D) Stating the authority is not redelegable; and
(E) Stating that the COR may be personally liable for unauthorized
acts.
[71 FR 69489, Dec. 1, 2006, as amended at 75 FR 22706, Apr. 30, 2010; 76
FR 58136, Sept. 20, 2011]
Sec. 201.602-70 Contract clause.
Use the clause at 252.201-7000, Contracting Officer's
Representative, in solicitations and contracts when appointment of a
contracting officer's representative is anticipated.
Sec. 201.603 Selection, appointment, and termination of appointment.
Sec. 201.603-2 Selection.
(1) In accordance with 10 U.S.C. 1724, in order to qualify to serve
as a contracting officer with authority to award or administer contracts
for amounts above the simplified acquisition threshold, a person must--
(i) Have completed all contracting courses required for a
contracting officer to serve in the grade in which the employee or
member of the armed forces will serve;
(ii) Have at least 2 years experience in a contracting position;
(iii) Have--
(A) Received a baccalaureate degree from an accredited educational
institution; and
(B) Completed at least 24 semester credit hours, or equivalent, of
study from an accredited institution of higher education in any of the
following disciplines: accounting, business finance, law, contracts,
purchasing, economics, industrial management, marketing, quantitative
methods, and organization and management; and
(iv) Meet such additional requirements, based on the dollar value
and complexity of the contracts awarded or administered in the position,
as may be established by the Secretary of Defense.
(2) The qualification requirements in paragraph (1)(iii) of this
subsection do not apply to a DoD employee or member of the armed forces
who--
(i) On or before September 30, 2000, occupied--
(A) A contracting officer position with authority to award or
administer contracts above the simplified acquisition threshold; or
(B) A position either as an employee in the GS-1102 occupational
series or a member of the armed forces in an occupational specialty
similar to the GS-1102 series;
[[Page 13]]
(ii) Is in a contingency contracting force; or
(iii) Is an individual appointed to a 3-year developmental position.
Information on developmental opportunities is contained in DoD
Instruction 5000.66, Operation of the Defense Acquisition, Technology,
and Logistics Workforce Education, Training, and Career Development
Program.
(3) Waivers to the requirements in paragraph (1) of this subsection
may be authorized. Information on waivers is contained in DoD
Instruction 5000.66.
[67 FR 65509, Oct. 25, 2002, as amended at 73 FR 21844, Apr. 23, 2008]
Sec. 201.603-3 Appointment.
(a) Certificates of Appointment executed under the Armed Services
Procurement Regulation or the Defense Acquisition Regulation have the
same effect as if they had been issued under FAR.
(b) Agency heads may delegate the purchase authority in 213.301 to
DoD civilian employees and members of the U.S. Armed Forces.
[56 FR 36284, July 31, 1991, as amended at 64 FR 56705, Oct. 21, 1999]
Sec. 201.670 Appointment of property administrators and plant clearance
officers.
(a) The appropriate agency authority shall appoint or terminate (in
writing) property administrators and plant clearance officers.
(b) In appointing qualified property administrators and plant
clearance officers, the appointing authority shall consider experience,
training, education, business acumen, judgment, character, and ethics.
[76 FR 52142, Aug. 19, 2011]
PART 202_DEFINITIONS OF WORDS AND TERMS
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Subpart 202.1_Definitions
Sec. 202.101 Definitions.
Congressional defense committees means--
(1) The Committee on Armed Services of the Senate;
(2) The Subcommittee on Defense of the Committee on Appropriations
of the Senate;
(3) The Committee on Armed Services of the House of Representatives;
and
(4) The Subcommittee on Defense of the Committee on Appropriations
of the House of Representatives.
Contract administration office also means a contract management
office of the Defense Contract Management Agency.
Contracting activity for DoD also means elements designated by the
director of a defense agency which has been delegated contracting
authority through its agency charter. DoD contracting activities are
listed at PGI 202.101.
Contracting officer's representative means an individual designated
and authorized in writing by the contracting officer to perform specific
technical or administrative functions.
Departments and agencies, as used in DFARS, means the military
departments and the defense agencies. The military departments are the
Departments of the Army, Navy, and Air Force (the Marine Corps is a part
of the Department of the Navy). The defense agencies are the Defense
Advanced Research Projects Agency, the Defense Commissary Agency, the
Defense Contract Management Agency, the Defense Finance and Accounting
Service, the Defense Information Systems Agency, the Defense
Intelligence Agency, the Defense Logistics Agency, the Defense Security
Cooperation Agency, the Defense Security Service, the Defense Threat
Reduction Agency, the Missile Defense Agency, the National Geospatial-
Intelligence Agency, the National Security Agency, the United States
Special Operations Command, and the United States Transportation
Command.
Department of Defense (DoD), as used in DFARS, means the Department
of Defense, the military departments, and the defense agencies.
Executive agency means for DoD, the Department of Defense, the
Department of the Army, the Department of
[[Page 14]]
the Navy, and the Department of the Air Force.
General public and non-governmental entities, as used in the
definition of commercial item at FAR 2.101, do not include the Federal
Government or a State, local, or foreign government (Pub. L. 110-181,
section 815(b)).
Head of the agency means, for DoD, the Secretary of Defense, the
Secretary of the Army, the Secretary of the Navy, and the Secretary of
the Air Force. Subject to the direction of the Secretary of Defense, the
Under Secretary of Defense (Acquisition, Technology, and Logistics), and
the Director of Defense Procurement and Acquisition Policy, the
directors of the defense agencies have been delegated authority to act
as head of the agency for their respective agencies (i.e., to perform
functions under the FAR or DFARS reserved to a head of agency or agency
head), except for such actions that by terms of statute, or any
delegation, must be exercised within the Office of the Secretary of
Defense. (For emergency acquisition flexibilities, see 218.270.)
Procedures, Guidance, and Information (PGI) means a companion
resource to the DFARS that--
(1) Contains mandatory internal DoD procedures. The DFARS will
direct compliance with mandatory procedures using imperative language
such as ``Follow the procedures at * * *'' or similar directive
language;
(2) Contains non-mandatory internal DoD procedures and guidance and
supplemental information to be used at the discretion of the contracting
officer. The DFARS will point to non-mandatory procedures, guidance, and
information using permissive language such as ``The contracting officer
may use * * *'' or ``Additional information is available at * * *'' or
other similar language;
(3) Is numbered similarly to the DFARS, except that each PGI
numerical designation is preceded by the letters ``PGI''; and
(4) Is available electronically at http://www.acq.osd.mil/dpap/dars/
index.htm.
Senior procurement executive means, for DoD--
Department of Defense (including the defense agencies)--Under
Secretary of Defense (Acquisition, Technology, and Logistics);
Department of the Army--Assistant Secretary of the Army
(Acquisition, Logistics and Technology);
Department of the Navy--Assistant Secretary of the Navy (Research,
Development and Acquisition);
Department of the Air Force--Assistant Secretary of the Air Force
(Acquisition).
The directors of the defense agencies have been delegated authority
to act as senior procurement executive for their respective agencies,
except for such actions that by terms of statute, or any delegation,
must be exercised by the Under Secretary of Defense (Acquisition,
Technology, and Logistics).
Tiered evaluation of offers, also known as cascading evaluation of
offers, means a procedure used in negotiated acquisitions, when market
research is inconclusive for justifying limiting competition to small
business concerns, whereby the contracting officer--
(1) Solicits and receives offers from both small and other than
small business concerns;
(2) Establishes a tiered or cascading order of precedence for
evaluating offers that is specified in the solicitation; and
(3) If no award can be made at the first tier, evaluates offers at
the next lower tier, until award can be made.
Simplified acquisition threshold, in addition to the meaning at FAR
2.101, means $300,000 when soliciting or awarding contracts to be
awarded and performed outside the United States, or making purchases
outside the United States, for acquisitions of supplies and services
that, as determined by the head of the contracting activity, are to be
used to support a humanitarian or peacekeeping operation, as defined at
FAR 2.101.
[56 FR 36287, July 31, 1991]
Editorial Note: For Federal Register citations affecting Sec.
202.101, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
[[Page 15]]
PART 203_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Sec.
Sec. 203.070 Reporting of violations and suspected violations.
Subpart 203.1_Safeguards
Sec. 203.104 Procurement integrity.
Sec. 203.104-4 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
Sec. 203.170 Business practices.
Sec. 203.171 Senior DoD officials seeking employment with defense
contractors.
Sec. 203.171-1 Scope.
Sec. 203.171-2 Definition.
Sec. 203.171-3 Policy.
Sec. 203.171-4 Solicitation provision and contract clause.
Subpart 203.5_Other Improper Business Practices
Sec. 203.502-2 Subcontractor kickbacks.
Sec. 203.570 Prohibition on persons convicted of frauds or other
defense-contract-related felonies.
Sec. 203.570-1 Scope.
Sec. 203.570-2 Prohibition period.
Sec. 203.570-3 Contract clause.
Subpart 203.7_Voiding and Rescinding Contracts
Sec. 203.703 Authority.
Subpart 203.8_Limitations on the Payment of Funds To Influence Federal
Transactions
Sec. 203.806 Processing suspected violations.
Subpart 203.9_Whistleblower Protections for Contractor Employees
Sec. 203.900 Scope of subpart.
Sec. 203.901 Definition.
Sec. 203.903 Policy.
Sec. 203.904 Procedures for filing complaints.
Sec. 203.905 Procedures for investigating complaints.
Sec. 203.906 Remedies.
Sec. 203.907 Classified information.
Sec. 203.970 Contract clause.
Subpart 203.10_Contractor Code of Business Ethics and Conduct
Sec. 203.1003 Requirements.
Sec. 203.1004 Contract clauses.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1
Source: 56 FR 36288, July 31, 1991, unless otherwise noted.
Sec. 203.070 Reporting of violations and suspected violations.
Report violations and suspected violations of the following
requirements in accordance with 209.406-3 or 209.407-3 and DoDD 7050.5,
Coordination of Remedies for Fraud and Corruption Related to Procurement
Activities:
(a) Certificate of Independent Price Determination (FAR 3.103).
(b) Procurement integrity (FAR 3.104).
(c) Gratuities clause (FAR 3.203).
(d) Antitrust laws (FAR 3.303).
(e) Covenant Against Contingent Fees (FAR 3.405).
(f) Kickbacks (FAR 3.502).
(g) Prohibitions on persons convicted of defense-related contract
felonies (203.570).
[69 FR 74990, Dec. 15, 2004, as amended at 77 FR 35879, June 15, 2012]
Subpart 203.1_Safeguards
Sec. 203.104 Procurement integrity.
Sec. 203.104-4 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
(d)(3) For purposes of FAR 3.104-4(d)(3) only, DoD follows the
notification procedures in FAR 27.404-5(a). However, FAR 27.404-5(a)(1)
does not apply to DoD.
[74 FR 2409, Jan. 15, 2009]
Sec. 203.170 Business practices.
To ensure the separation of functions for oversight, source
selection, contract negotiation, and contract award, departments and
agencies shall adhere to the following best practice policies:
(a) Senior leaders shall not perform multiple roles in source
selection for a major weapon system or major service acquisition.
Departments and agencies shall certify every 2 years that no senior
leader has performed multiple roles in the acquisition of a major weapon
system or major service. Completed certifications shall be forwarded to
the Director, Defense Procurement, in accordance with the procedures at
PGI 203.170.
(b) Vacant acquisition positions shall be filled on an ``acting''
basis from
[[Page 16]]
below until a permanent appointment is made. To provide promising
professionals an opportunity to gain experience by temporarily filling
higher positions, these oversight duties shall not be accrued at the
top.
(c) Acquisition process reviews of the military departments shall be
conducted to assess and improve acquisition and management processes,
roles, and structures. The scope of the reviews should include--
(1) Distribution of acquisition roles and responsibilities among
personnel;
(2) Processes for reporting concerns about unusual or inappropriate
actions; and
(3) Application of DoD Instruction 5000.2, Operation of the Defense
Acquisition System, and the disciplines in the Defense Acquisition
Guidebook.
(d) Source selection processes shall be--
(1) Reviewed and approved by cognizant organizations responsible for
oversight;
(2) Documented by the head of the contracting activity or at the
agency level; and
(3) Periodically reviewed by outside officials independent of that
office or agency.
(e) Legal review of documentation of major acquisition system source
selection shall be conducted prior to contract award, including the
supporting documentation of the source selection evaluation board,
source selection advisory council, and source selection authority.
(f) Procurement management reviews shall determine whether clearance
threshold authorities are clear and that independent review is provided
for acquisitions exceeding the simplified acquisition threshold.
[72 FR 20757, Apr. 26, 2007, as amended at 74 FR 2408, Jan. 15, 2009]
Sec. 203.171 Senior DoD officials seeking employment with defense
contractors.
Sec. 203.171-1 Scope.
This section implements Section 847 of the National Defense
Authorization Act for Fiscal Year 2008 (Public Law 110-181).
[74 FR 2409, Jan. 15, 2009]
Sec. 203.171-2 Definition.
Covered DoD official as used in this section, is defined in the
clause at 252.203-7000, Requirements Relating to Compensation of Former
DoD Officials.
[74 FR 2409, Jan. 15, 2009]
Sec. 203.171-3 Policy.
(a) A DoD official covered by the requirements of Section 847 of
Public Law 110-181 (a ``covered DoD official'') who, within 2 years
after leaving DoD service, expects to receive compensation from a DoD
contractor, shall, prior to accepting such compensation, request a
written opinion from the appropriate DoD ethics counselor regarding the
applicability of post-employment restrictions to activities that the
official may undertake on behalf of a contractor.
(b) A DoD contractor may not knowingly provide compensation to a
covered DoD official within 2 years after the official leaves DoD
service unless the contractor first determines that the official has
received, or has requested at least 30 days prior to receiving
compensation from the contractor, the post-employment ethics opinion
described in paragraph (a) of this section.
(c) If a DoD contractor knowingly fails to comply with the
requirements of the clause at 252.203-7000, administrative and
contractual actions may be taken, including cancellation of a
procurement, rescission of a contract, or initiation of suspension or
debarment proceedings.
[74 FR 2409, Jan. 15, 2009]
Sec. 203.171-4 Solicitation provision and contract clause.
(a) Use the clause at 252.203-7000, Requirements Relating to
Compensation of Former DoD Officials, in all solicitations and
contracts, including solicitations and contracts using FAR part 12
procedures for the acquisition of commercial items.
(b) Use the provision at 252.203-7005, Representation Relating to
Compensation of Former DoD Officials, in all solicitations, including
solicitations using FAR part 12 procedures for the acquisition of
commercial items and
[[Page 17]]
solicitations for task and delivery orders
[76 FR 71829, Nov. 18, 2011, as amended at 78 FR 37983, June 25, 2013]
Subpart 203.5_Other Improper Business Practices
Sec. 203.502-2 Subcontractor kickbacks.
(h) The DoD Inspector General has designated Special Agents of the
following investigative organizations as representatives for conducting
inspections and audits under 41 U.S.C. chapter 87, Kickbacks:
(i) U.S. Army Criminal Investigation Command.
(ii) Naval Criminal Investigative Service.
(iii) Air Force Office of Special Investigations.
(iv) Defense Criminal Investigative Service.
[56 FR 36288, July 31, 1991, as amended at 60 FR 29497, June 5, 1995; 77
FR 35879, June 15, 2012]
Sec. 203.570 Prohibition on persons convicted of frauds or other
defense-contract-related felonies.
Sec. 203.570-1 Scope.
This subpart implements 10 U.S.C. 2408. For information on 10 U.S.C.
2408, see PGI 203.570-1.
[71 FR 14100, Mar. 21, 2006]
Sec. 203.570-2 Prohibition period.
DoD has sole responsibility for determining the period of the
prohibition described in paragraph (b) of the clause at 252.203-7001,
Prohibition on Persons Convicted of Fraud or Other Defense-Contract-
Related Felonies. The prohibition period--
(a) Shall not be less than 5 years from the date of conviction
unless the agency head or a designee grants a waiver in the interest of
national security. Follow the waiver procedures at PGI 203.570-2(a); and
(b) May be more than 5 years from the date of conviction if the
agency head or a designee makes a written determination of the need for
the longer period. The agency shall provide a copy of the determination
to the address at PGI 203.570-2(b).
[69 FR 74990, Dec. 15, 2004]
Sec. 203.570-3 Contract clause.
Use the clause at 252.203-7001, Prohibition on Persons Convicted of
Fraud or Other Defense-Contract-Related Felonies, in all solicitations
and contracts exceeding the simplified acquisition threshold, except
solicitations and contracts for commercial items.
[64 FR 14398, Mar. 25, 1999. Redesignated at 69 FR 74990, Dec. 15, 2004]
Subpart 203.7_Voiding and Rescinding Contracts
Sec. 203.703 Authority.
The authority to act for the agency head under this subpart is
limited to a level no lower than an official who is appointed by and
with the advice of the Senate, without power of redelegation. For the
defense agencies, for purposes of this subpart, the agency head designee
is the Under Secretary of Defense (Acquisition, Technology, and
Logistics).
[56 FR 36288, July 31, 1991, as amended at 60 FR 61592, Nov. 30, 1995;
65 FR 39704, June 27, 2000]
Subpart 203.8_Limitations on the Payment of Funds To Influence Federal
Transactions
Source: 77 FR 19128, Mar. 30, 2012, unless otherwise noted.
Sec. 203.806 Processing suspected violations.
Report suspected violations to the address at PGI 203.8(a).
Subpart 203.9_Whistleblower Protections for Contractor Employees
Sec. 203.900 Scope of subpart.
(a) This subpart implements 10 U.S.C. 2409 as amended by section 846
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L.
110-181), section 842 of the National Defense Authorization Act for
Fiscal Year 2009 (Pub. L. 110-417), and section 827 of the
[[Page 18]]
National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-
239).
(b) This subpart does not apply to any element of the intelligence
community, as defined in 50 U.S.C. 3003(4). This subpart does not apply
to any disclosure made by an employee of a contractor or subcontractor
of an element of the intelligence community if such disclosure--
(1) Relates to an activity or an element of the intelligence
community; or
(2) Was discovered during contract or subcontract services provided
to an element of the intelligence community.
[58 FR 59853, Sept. 30, 2013]
Sec. 203.901 Definition.
Abuse of authority, as used in this subpart, means an arbitrary and
capricious exercise of authority that is inconsistent with the mission
of DoD or the successful performance of a DoD contract.
Sec. 203.903 Policy.
(1) Policy. 10 U.S.C. 2409 prohibits contractors or subcontractors
from discharging, demoting, or otherwise discriminating against an
employee as a reprisal for disclosing, to any of the entities listed at
paragraph (2) of this section, information that the employee reasonably
believes is evidence of gross mismanagement of a DoD contract, a gross
waste of DoD funds, an abuse of authority relating to a DoD contract, a
substantial and specific danger to public health or safety, or a
violation of law, rule, or regulation related to a DoD contract
(including the competition for or negotiation of a contract). Such
reprisal is prohibited even if it is undertaken at the request of an
executive branch official, unless the request takes the form of a non-
discretionary directive and is within the authority of the executive
branch official making the request.
(2) Entities to whom disclosure may be made:
(i) A Member of Congress or a representative of a committee of
Congress.
(ii) An Inspector General that receives funding from or has
oversight over contracts awarded for or on behalf of DoD.
(iii) The Government Accountability Office.
(iv) A DoD employee responsible for contract oversight or
management.
(v) An authorized official of the Department of Justice or other law
enforcement agency.
(vi) A court or grand jury.
(vii) A management official or other employee of the contractor or
subcontractor who has the responsibility to investigate, discover, or
address misconduct.
(3) Disclosure clarified. An employee who initiates or provides
evidence of contractor or subcontractor misconduct in any judicial or
administrative proceeding relating to waste, fraud, or abuse on a DoD
contract shall be deemed to have made a disclosure.
(4) Contracting officer actions. A contracting officer who receives
a complaint of reprisal of the type described in paragraph (1) of this
section shall forward it to legal counsel or to the appropriate party in
accordance with agency procedures.
[58 FR 59853, Sept. 30, 2013]
Sec. 203.904 Procedures for filing complaints.
(a) Any employee of a contractor or subcontractor who believes that
he or she has been discharged, demoted, or otherwise discriminated
against contrary to the policy in 203.903 may file a complaint with the
Inspector General of the Department of Defense.
(b) A complaint may not be brought under this section more than
three years after the date on which the alleged reprisal took place.
(c) The complaint shall be signed and shall contain--
(1) The name of the contractor;
(2) The contract number, if known; if not, a description reasonably
sufficient to identify the contract(s) involved;
(3) The violation of law, rule, or regulation giving rise to the
disclosure;
(4) The nature of the disclosure giving rise to the discriminatory
act, including the party to whom the information was disclosed; and
(5) The specific nature and date of the reprisal.
[58 FR 59853, Sept. 30, 2013]
[[Page 19]]
Sec. 203.905 Procedures for investigating complaints.
(1) Unless the DoD Inspector General makes a determination that the
complaint is frivolous, fails to allege a violation of the prohibition
in 203.903, or has been previously addressed in another Federal or State
judicial or administrative proceeding initiated by the complainant, the
DoD Inspector General will investigate the complaint.
(2) If the DoD Inspector General determines that a complaint merits
further investigation, the DoD Inspector General will--
(i) Notify the complainant, the contractor alleged to have committed
the violation, and the head of the agency;
(ii) Conduct an investigation; and
(iii) Provide a written report of findings to the complainant, the
contractor alleged to have committed the violation, and the head of the
agency.
(3) Upon completion of the investigation, the DoD Inspector
General--
(i) Either will determine that the complaint is frivolous, fails to
allege a violation of the prohibition in 203.903, or has been previously
addressed in another Federal or State judicial or administrative
proceeding initiated by the complainant, or will submit the report
addressed in paragraph (2) of this section within 180 days after
receiving the complaint; and
(ii) If unable to submit a report within 180 days, will submit the
report within the additional time period, up to 180 days, as agreed to
by the person submitting the complaint.
(4) The DoD Inspector General may not respond to any inquiry or
disclose any information from or about any person alleging the reprisal,
except to the extent that such response or disclosure is--
(i) Made with the consent of the person alleging reprisal;
(ii) Made in accordance with 5 U.S.C. 552a (the Freedom of
Information Act) or as required by any other applicable Federal law; or
(iii) Necessary to conduct an investigation of the alleged reprisal.
(5) The legal burden of proof specified at paragraph (e) of 5 U.S.C.
1221 (Individual Right of Action in Certain Reprisal Cases) shall be
controlling for the purposes of an investigation conducted by the DoD
Inspector General, decision by the head of an agency, or judicial or
administrative proceeding to determine whether prohibited discrimination
has occurred.
[74 FR 2410, Jan. 15, 2009, as amended at 78 FR 59853, Sept. 30, 2013]
Sec. 203.906 Remedies.
(1) Not later than 30 days after receiving a DoD Inspector General
report in accordance with 203.905, the head of the agency shall
determine whether sufficient basis exists to conclude that the
contractor has subjected the complainant to a reprisal as prohibited by
203.903; and shall either issue an order denying relief or shall take
one or more of the following actions:
(i) Order the contractor to take affirmative action to abate the
reprisal.
(ii) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with compensatory
damages (including back pay), employment benefits, and other terms and
conditions of employment that would apply to the person in that position
if the reprisal had not been taken.
(iii) Order the contractor to pay the complainant an amount equal to
the aggregate amount of all costs and expenses (including attorneys'
fees and expert witnesses' fees) that were reasonably incurred by the
complainant for, or in connection with, bringing the complaint regarding
the reprisal, as determined by the head of the agency.
(2) If the head of the agency issues an order denying relief or has
not issued an order within 210 days after the submission of the
complaint or within 30 days after the expiration of an extension of time
granted in accordance with 203.905(3)(ii), and there is no showing that
such delay is due to the bad faith of the complainant--
(i) The complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint; and
(ii) The complainant may bring a de novo action at law or equity
against the contractor to seek compensatory damages and other relief
available under 10 U.S.C. 2409 in the appropriate district court of the
United States,
[[Page 20]]
which shall have jurisdiction over such an action without regard to the
amount in controversy. Such an action shall, at the request of either
party to the action, be tried by the court with a jury. An action under
this authority may not be brought more than two years after the date on
which remedies are deemed to have been exhausted.
(3) An Inspector General determination and an agency head order
denying relief under paragraph (2) of this section shall be admissible
in evidence in any de novo action at law or equity brought pursuant to
10 U.S.C. 2409(c).
(4) Whenever a contractor fails to comply with an order issued by
the head of agency in accordance with 10 U.S.C. 2409, the head of the
agency or designee shall request the Department of Justice to file an
action for enforcement of such order in the United States district court
for a district in which the reprisal was found to have occurred. In any
action brought under this paragraph, the court may grant appropriate
relief, including injunctive relief, compensatory and exemplary damages,
and reasonable attorney fees and costs. The person upon whose behalf an
order was issued may also file such an action or join in an action filed
by the head of the agency.
(5) Any person adversely affected or aggrieved by an order issued by
the head of the agency in accordance with 10 U.S.C. 2409 may obtain
judicial review of the order's conformance with the law, and the
implementing regulation, in the United States Court of Appeals for a
circuit in which the reprisal is alleged in the order to have occurred.
No petition seeking such review may be filed more than 60 days after
issuance of the order by the head of the agency or designee. Review
shall conform to Chapter 7 of Title 5, Unites States Code. Filing such
an appeal shall not act to stay the enforcement of the order by the head
of an agency, unless a stay is specifically entered by the court.
(6) The rights and remedies provided for in this subpart may not be
waived by any agreement, policy, form, or condition of employment.
[74 FR 2410, Jan. 15, 2009, as amended at 78 FR 59854, Sept. 30, 2013]
Sec. 203.970 Contract clause.
Use the clause at 252.203-7002, Requirement to Inform Employees of
Whistleblower Rights, in all solicitations and contracts.
[74 FR 2410, Jan. 15, 2009]
Subpart 203.10_Contractor Code of Business Ethics and Conduct
Sec. 203.1003 Requirements.
(b) Notification of possible contractor violation. Upon notification
of a possible contractor violation of the type described in FAR
3.1003(b), coordinate the matter with the following office:
Department of Defense Office of Inspector General, Investigative Policy
and Oversight Contractor Disclosure Program, 4800 Mark Center Drive,
Suite 11H25, Arlington, VA 22350-1500.
Toll-Free Telephone: 866-429-8011.
[77 FR 76937, Dec. 31, 2012]
Sec. 203.1004 Contract clauses.
(a) Use the clause at 252.203-7003, Agency Office of the Inspector
General, in solicitations and contracts, including solicitations and
contracts using FAR part 12 procedures for the acquisition of commercial
items, that include the FAR clause 52.203-13, Contractor Code of
Business Ethics and Conduct.
(b)(2)(ii) Unless the contract is for the acquisition of a
commercial item or will be performed entirely outside the United States,
if the contract exceeds $5 million, use the clause at 252.203-7004,
Display of Fraud Hotline Poster(s), in lieu of the clause at FAR 52.203-
14, Display of Hotline Poster(s). If the Department of Homeland Security
(DHS) provides disaster relief funds for the contract, DHS will provide
information on how to obtain and display the DHS fraud hotline poster.
[73 FR 46815, Aug. 12, 2008, as amended at 74 FR 53413, Oct. 19, 2009;
75 FR 59101, Sept. 27, 2010, as amended at 76 FR 32840, June 6, 2011; 76
FR 57674, Sept. 16, 2011; 78 FR 37983, June 25, 2013]
[[Page 21]]
PART 204_ADMINISTRATIVE MATTERS
Subpart 204.1_Contract Execution
Sec.
Sec. 204.101 Contracting officer's signature.
Subpart 204.2_Contract Distribution
Sec. 204.201 Procedures.
Sec. 204.203 Taxpayer identification information.
Sec. 204.270 Electronic Document Access.
Subpart 204.4_Safeguarding Classified Information Within Industry
Sec. 204.402 General.
Sec. 204.403 Responsibilities of contracting officers.
Sec. 204.404 Contract clause.
Sec. 204.404-70 Additional contract clauses.
Sec. 204.470 U.S.-International Atomic Energy Agency Additional
Protocol.
Sec. 204.470-1 General.
Sec. 204.470-2 National security exclusion.
Sec. 204.470-3 Contract clause.
Subpart 204.6_Contract Reporting
Sec. 204.602 General.
Sec. 204.604 Responsibilities.
Sec. 204.606 Reporting data.
Subpart 204.8_Contract Files
Sec. 204.802 Contract files.
Sec. 204.804 Closeout of contract files.
Sec. 204.805 Disposal of contract files.
Subpart 204.9_Taxpayer Identification Number Information
Sec. 204.902 General.
Subpart 204.11_System For Award Management
Sec. 204.1103 Procedures.
Sec. 204.1105 Solicitation provision and contract provisions.
Subpart 204.12_Annual Representations and Certifications
Sec. 204.1202 Solicitation provision.
Subpart 204.70_Uniform Procurement Instrument Identification Numbers
Sec. 204.7000 Scope.
Sec. 204.7001 Policy.
Sec. 204.7002 Procedures.
Sec. 204.7003 Basic PII number.
Sec. 204.7004 Supplementary PII numbers.
Sec. 204.7005 Assignment of order codes.
Sec. 204.7006 Cross reference to Federal Procurement Data System.
Sec. 204.7007 Order of application for modifications.
Subpart 204.71_Uniform Contract Line Item Numbering System
Sec. 204.7100 Scope.
Sec. 204.7101 Definitions.
Sec. 204.7102 Policy.
Sec. 204.7103 Contract line items.
Sec. 204.7103-1 Criteria for establishing.
Sec. 204.7103-2 Numbering procedures.
Sec. 204.7104 Contract subline items.
Sec. 204.7104-1 Criteria for establishing.
Sec. 204.7104-2 Numbering procedures.
Sec. 204.7105 Contract exhibits and attachments.
Sec. 204.7106 Contract modifications.
Sec. 204.7107 Contract accounting classification reference number (ACRN)
and agency accounting identifier (AAI).
Sec. 204.7108 Payment instructions.
Sec. 204.7109 Solicitation provision and contract clause.
Subpart 204.72_Contractor Identification
Sec. 204.7200 Scope of subpart.
Sec. 204.7201 Definitions.
Sec. 204.7202 General.
Sec. 204.7202-1 CAGE codes.
Sec. 204.7202-2 DUNS numbers.
Sec. 204.7202-3 TINs.
Sec. 204.7203 Responsibilities of contracting officers.
Sec. 204.7204 Maintenance of the CAGE file.
Sec. 204.7205 Novation agreements, mergers and sales of assets.
Sec. 204.7206 Using CAGE codes to identify agents and brokers.
Sec. 204.7207 Solicitation provision.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36289, July 31, 1991, unless otherwise noted.
Subpart 204.1_Contract Execution
Sec. 204.101 Contracting officer's signature.
Follow the procedures at PGI 204.101 for signature of contract
documents.
[71 FR 9268, Feb. 23, 2006]
Subpart 204.2_Contract Distribution
Sec. 204.201 Procedures.
Follow the procedures at PGI 204.201 for the distribution of
contracts and modifications.
[70 FR 58982, Oct. 11, 2005]
[[Page 22]]
Sec. 204.203 Taxpayer identification information.
(b) The procedure at FAR 4.203(b) does not apply to contracts that
include the provision at FAR 52.204-7, System for Award Management. The
payment office obtains the taxpayer identification number and the type
of organization from the System for Award Management database.
[78 FR 28757, May 16, 2013]
Sec. 204.270 Electronic Document Access.
Follow the procedures at PGI 204.270 relating to obtaining an
account in the Electronic Document Access system.
[75 FR 59102, Sept. 27, 2010]
Subpart 204.4_Safeguarding Classified Information Within Industry
Sec. 204.402 General.
DoD employees or members of the Armed Forces who are assigned to or
visiting a contractor facility and are engaged in oversight of an
acquisition program will retain control of their work products, both
classified and unclassified (see PGI 204.402).
[71 FR 9268, Feb. 23, 2006, as amended at 76 FR 76319, Dec. 7, 2011]
Sec. 204.403 Responsibilities of contracting officers.
Contracting officers shall ensure that solicitations comply with PGI
204.403.
[76 FR 76319, Dec. 7, 2011]
Sec. 204.404 Contract clause.
Sec. 204.404-70 Additional contract clauses.
(a) Use the clause at 252.204-7000, Disclosure of Information, in
solicitations and contracts when the contractor will have access to or
generate unclassified information that may be sensitive and
inappropriate for release to the public.
(b) Use the clause at 252.204-7003, Control of Government Personnel
Work Product, in all solicitations and contracts.
(c) Use the clause at 252.204-7005, Oral Attestation of Security
Responsibilities, in solicitations and contracts that include the clause
at FAR 52.204-2, Security Requirements.
[57 FR 14992, Apr. 23, 1992, as amended at 64 FR 45197, Aug. 19, 1999]
Sec. 204.470 U.S.-International Atomic Energy Agency Additional
Protocol.
Sec. 204.470-1 General.
Under the U.S.-International Atomic Energy Agency Additional
Protocol (U.S.-IAEA AP), the United States is required to declare a wide
range of public and private nuclear-related activities to the IAEA and
potentially provide access to IAEA inspectors for verification purposes.
[74 FR 2412, Jan. 15, 2009]
Sec. 204.470-2 National security exclusion.
(a) The U.S.-IAEA AP permits the United States unilaterally to
declare exclusions from inspection requirements for activities, or
locations or information associated with such activities, with direct
national security significance.
(b) In order to ensure that all relevant activities are reviewed for
direct national security significance, both current and former
activities, and associated locations or information, are to be
considered for applicability for a national security exclusion.
(c) If a DoD program manager receives notification from a contractor
that the contractor is required to report any of its activities in
accordance with the U.S.-IAEA AP, the program manager will--
(1) Conduct a security assessment to determine if, and by what
means, access may be granted to the IAEA; or
(2) Provide written justification to the component or agency treaty
office for application of the national security exclusion at that
location to exclude access by the IAEA, in accordance with DoD
Instruction 2060.03, Application of the National Security Exclusion to
the Agreements Between the United States of America and the
International Atomic Energy Agency for the Application of Safeguards in
the United States of America.
[74 FR 2412, Jan. 15, 2009]
[[Page 23]]
Sec. 204.470-3 Contract clause.
Use the clause at 252.204-7010, Requirement for Contractor to Notify
DoD if the Contractor's Activities are Subject to Reporting Under the
U.S.-International Atomic Energy Agency Additional Protocol, in
solicitations and contracts for research and development or major
defense acquisition programs involving--
(a) Any fissionable materials (e.g., uranium, plutonium, neptunium,
thorium, americium);
(b) Other radiological source materials; or
(c) Technologies directly related to nuclear power production,
including nuclear or radiological waste materials.
[74 FR 2412, Jan. 15, 2009]
Subpart 204.6_Contract Reporting
Sec. 204.602 General.
See PGI 204.602 for additional information on the Federal
Procurement Data System (FPDS) and procedures for resolving technical or
policy issues relating to FPDS.
[74 FR 37644, July 29, 2009]
Sec. 204.604 Responsibilities.
(1) The process for reporting contract actions to FPDS should, where
possible, be automated by incorporating it into contract writing
systems.
(2) Data in FPDS is stored indefinitely and is electronically
retrievable. Therefore, the contracting officer may reference the
contract action report (CAR) approval date in the associated Government
contract file instead of including a paper copy of the electronically
submitted CAR in the file. Such reference satisfies contract file
documentation requirements of FAR 4.803(a).
(3) By December 15th of each year, the chief acquisition officer of
each DoD component required to report its contract actions shall submit
to the Director, Defense Procurement and Acquisition Policy, its annual
certification and data validation results for the preceding fiscal year
in accordance with the DoD Data Improvement Plan requirements at http://
www.acq.osd.mil/dpap/pdi/eb. The Director, Defense Procurement and
Acquisition Policy, will submit a consolidated DoD annual certification
to the Office of Management and Budget by January 5th of each year.
[74 FR 37644, July 29, 2009]
Sec. 204.606 Reporting data.
In addition to FAR 4.606, follow the procedures at PGI 204.606 for
reporting data to FPDS.
[74 FR 37644, July 29, 2009]
Subpart 204.8_Contract Files
Sec. 204.802 Contract files.
Official contract files shall consist of--
(1) Only original, authenticated or conformed copies of contractual
instruments--
(i) Authenticated copies means copies that are shown to be genuine
in one of two ways--
(A) Certification as true copy by signature of an authorized person;
or
(B) Official seal.
(ii) Conformed copies means copies that are complete and accurate,
including the date signed and the names and titles of the parties who
signed them.
(2) Signed or official record copies of correspondence, memoranda,
and other documents.
Sec. 204.804 Closeout of contract files.
(1) Contracting officers shall close out contracts in accordance
with the procedures at PGI 204.804. The closeout date for file purposes
shall be determined and documented by the procuring contracting officer.
(2) The head of the contracting activity shall assign the highest
priority to closeout of contracts awarded for performance in a
contingency area. Heads of contracting activities must monitor and
assess on a regular basis the progress of contingency contract closeout
activities and take appropriate steps if a backlog occurs. For guidance
on the planning and execution of closing out such contracts, see PGI
207.105(b)(20)(C)(8) and PGI 225.7404(e).
[77 FR 30367, May 22, 2012]
[[Page 24]]
Sec. 204.805 Disposal of contract files.
(1) The sources of the period for which official contract files must
be retained are General Records Schedule 3 (Procurement, Supply, and
Grant Records) and General Records Schedule 6 (Accountable Officers'
Accounts Records). Copies of the General Records Schedule may be
obtained from the National Archives and Records Administration,
Washington, DC 20408.
(2) Deviations from the periods cannot be granted by the Defense
Acquisition Regulatory Council. Forward requests for deviations to both
the Government Accountability Office and the National Archives and
Records Administration.
(3) Hold completed contract files in the office responsible for
maintaining them for a period of 12 months after completion. After the
initial 12 month period, send the records to the local records holding
or staging area until they are eligible for destruction. If no space is
available locally, transfer the files to the General Services
Administration Federal Records Center that services the area.
(4) Duplicate or working contract files should contain no originals
of materials that properly belong in the official files. Destroy working
files as soon as practicable once they are no longer needed.
(5) Retain pricing review files, containing documents related to
reviews of the contractor's price proposals, subject to certified cost
or pricing data (see FAR 15.403-4), for six years. If it is impossible
to determine the final payment date in order to measure the six year
period, retain the files for nine years.
[56 FR 36289, July 31, 1991, as amended at 62 FR 40472, July 29, 1997;
63 FR 11528, Mar. 9, 1998; 71 FR 53044, Sept. 8, 2006; 77 FR 76939, Dec.
31, 2012]
Subpart 204.9_Taxpayer Identification Number Information
Source: 64 FR 43099, Aug. 9, 1999, unless otherwise noted.
Sec. 204.902 General.
(b) DoD uses the Federal Procurement Data System (FPDS) to meet
these reporting requirements.
[74 FR 37645, July 29, 2009]
Subpart 204.11_System For Award Management
Source: 68 FR 64558, Nov. 14, 2003, unless otherwise noted.
Sec. 204.1103 Procedures.
See PGI 204.1103 for helpful information on navigation and data
entry in the System for Award Management (SAM) database.
(1) On contract award documents, use the contractor's legal or
``doing business as'' name and physical address information as recorded
in the (SAM) database at the time of award.
(2) When making a determination to exercise an option, or at any
other time before issuing a modification other than a unilateral
modification making an administrative change, ensure that--
(i) The contractor's record is active in the SAM database; and
(ii) The contractor's Data Universal Numbering System (DUNS) number,
Commercial and Government Entity (CAGE) code, name, and physical address
are accurately reflected in the contract document.
(3) At any time, if the DUNS number, CAGE code, contractor name, or
physical address on a contract no longer matches the information on the
contractor's record in the SAM database, the contracting officer shall
process a novation or change-of-name agreement, or an address change, as
appropriate.
(4) See PGI 204.1103 for additional requirements relating to use of
information in the SAM database.
(5) On contractual documents transmitted to the payment office,
provide the CAGE code, instead of the DUNS number or DUNS+4 number, in
accordance with agency procedures.
[74 FR 37643, July 29, 2009, as amended at 78 FR 28757, May 16, 2013]
[[Page 25]]
Sec. 204.1105 Solicitation provision and contract provisions.
When using the provision at FAR 52.204-7, System for Award
Management, use the provision with 252.204-7004, Alternate A, System for
Award Management.
[78 FR 28757, May 16, 2013, as amended at 78 FR 30232, May 22, 2013]
Subpart 204.12_Annual Representations and Certifications
Source: 73 FR 1823, Jan. 10, 2008, unless otherwise noted.
Sec. 204.1202 Solicitation provision.
(1) When using the provision at FAR 52.204-8, Annual Representations
and Certifications, use the provision with 252.204-7007, Alternate A,
Annual Representations and Certifications; and
(2) When the provision at FAR 52.204-7, Central Contractor
Registration, is included in the solicitation, do not include separately
in the solicitation the following provisions, which are included in
DFARS 252.204-7007:
(i) 252.209-7001, Disclosure of Ownership or Control by the
Government of a Terrorist Country.
(ii) 252.209-7002, Disclosure of Ownership or Control by a Foreign
Government.
(iii) 252.209-7003, Reserve Officer Training Corps and Military
Recruiting on Campus--Representation.
(iv) 252.216-7008, Economic Price Adjustment--Wage Rates or Material
Prices Controlled by a Foreign Government--Representation.
(v) 252.225-7000, Buy American--Balance of Payments Program
Certificate.
(vi) 252.225-7020, Trade Agreements Certificate.
(vii) 252.225-7022, Trade Agreements Certificate--Inclusion of Iraqi
End Products.
(viii) 252.225-7031, Secondary Arab Boycott of Israel.
(ix) 252.225-7035, Buy American--Free Trade Agreements--Balance of
Payments Program Certificate.
(x) 252.225-7042, Authorization to Perform.
(xi) 252.229-7012, Tax Exemptions (Italy)--Representation.
(xii) 252.229-7013, Tax Exemptions (Spain)--Representation.
(xiii) 252.247-7022, Representation of Extent of Transportation by
Sea.
[76 FR 58141, Sept. 20, 2011, as amended at 77 FR 19129, Mar. 30, 2012;
77 FR 35879, June 15, 2012; 78 FR 37983, June 25, 2013; 78 FR 40043,
July 3, 2013]
Subpart 204.70_Uniform Procurement Instrument Identification Numbers
Sec. 204.7000 Scope.
This subpart--
(a) Prescribes policies and procedures for assigning numbers to all
solicitations, contracts, and related instruments; and
(b) Does not apply to solicitations or orders for communication
service authorizations issued by the Defense Information Technology
Contracting Organization of the Defense Information Systems Agency in
accordance with 239.7407-2.
[68 FR 64556, Nov. 14, 2003]
Sec. 204.7001 Policy.
(a) Use the uniform procurement instrument identification (PII)
numbering system prescribed by this subpart for the solicitation/
contract instruments described in 204.7003 and 204.7004.
(b) Retain the basic PII number unchanged for the life of the
instrument unless the conditions in paragraph (c) of this section exist.
(c)(1) If continued performance under a contract number is not
possible or is not in the Government's best interest solely for
administrative reasons (e.g., when the supplementary PII serial
numbering system is exhausted or for lengthy major systems contracts
with multiple options), the contracting officer may assign an additional
PII number by issuing a separate continued contract to permit continued
contract performance.
(2) A continued contract--
(i) Does not constitute a new procurement;
(ii) Incorporates all prices, terms, and conditions of the
predecessor contract effective at the time of issuance of the continued
contract;
[[Page 26]]
(iii) Operates as a separate contract independent of the predecessor
contract once issued; and
(iv) Shall not evade competition, expand the scope of work, or
extend the period of performance beyond that of the predecessor
contract.
(3) When issuing a continued contract, the contracting officer
shall--
(i) Issue an administrative modification to the predecessor contract
to clearly state that--
(A) Any future awards provided for under the terms of the
predecessor contract (e.g., issuance of orders or exercise of options)
will be accomplished under the continued contract; and
(B) Supplies and services already acquired under the predecessor
contract shall remain solely under that contract for purposes of
Government inspection, acceptance, payment, and closeout; and
(ii) Follow the procedures at PGI 204.7001(c).
[71 FR 27640, May 12, 2006]
Sec. 204.7002 Procedures.
(a) In assigning PII numbers--
(1) Use only the alpha-numeric characters, as prescribed in this
subpart; and
(2) Do not use the letter ``I'' or ``O''.
(b) If department/agency procedures require other identification on
the solicitation, contract, or other related instrument forms, enter it
in such a location so as to separate it clearly from the PII number.
(c) Enter the basic PII number, including Federal supply contract
numbers and any supplementary numbers, in the spaces provided on the
solicitation, contract, or related instrument forms. Separate the major
elements by dashes, e.g., N00023-90-D-0009 (not necessary in electronic
transmission). If there is no space provided on the form, enter the
number in the upper right corner of the form and identify what it is
(e.g., Supplementary Number N00023-90-F-0120).
[56 FR 36289, July 31, 1991, as amended at 65 FR 14398, Mar. 16, 2000;
68 FR 64556, Nov. 14, 2003]
Sec. 204.7003 Basic PII number.
(a) Elements of a number. The number consists of 13 alpha-numeric
characters grouped to convey certain information.
(1) Positions 1 through 6. The first six positions identify the
department/agency and office issuing the instrument. Use the DoD
Activity Address Code (DoDAAC) assigned to the issuing office. DoDAACs
can be found at https://day2k1.daas.dla.mil/daasinq/.
(2) Positions 7 through 8. The seventh and eighth positions are the
last two digits of the fiscal year in which the procurement instrument
is issued or awarded.
(3) Position 9. Indicate the type of instrument by entering one of
the following upper case letters in position nine--
(i) Blanket purchase agreements--A
(ii) Invitations for bids--B
(iii) Contracts of all types except indefinite-delivery contracts,
sales contracts, and short form research contracts. Do not use this code
for contracts or agreements with provisions for orders or calls.--C
(iv) Indefinite delivery contracts--D
(v) Reserved--E
(vi) Calls against blanket purchase agreements and orders under
contracts (including Federal Supply Schedules, Governmentwide
acquisition contracts, and multi-agency contracts) and basic ordering
agreements issued by departments or agencies outside DoD. Do not use the
`F' designation on DoD-issued purchase orders, contracts, agreements, or
orders placed under DoD-issued contracts or agreements.--F
(vii) Basic ordering agreements--G
(viii) Agreements, including basic agreements and loan agreements,
but excluding blanket purchase agreements, basic ordering agreements,
and leases. Do not use this code for contracts or agreements with
provisions for orders or calls--H
(ix) Do not use--I
(x) Reserved--J
(xi) Short form research contract--K
(xii) Lease agreement--L
(xiii) Purchase orders--manual (assign W when numbering capacity of
M is exhausted during the fiscal year)--M
(xiv) Notice of intent to purchase--N
(xv) Do not use--O
[[Page 27]]
(xvi) Purchase order--automated (assign V when numbering capacity of
P is exhausted during a fiscal year)--P
(xvii) Request for quotation--manual--Q
(xviii) Request for proposal--R
(xix) Sales contract--S
(xx) Request for quotation--automated (assign U when numbering
capacity of T is exhausted during a fiscal year)--T
(xxi) See T--U
(xxii) See P--V
(xxiii) See M--W
(xxiv) Reserved for departmental use--X
(xxv) Imprest fund--Y
(xxvi) Reserved for departmental use--Z
(4) Position 10 through 13. Enter the serial number of the
instrument in these positions. A separate series of serial numbers may
be used for any type of instrument listed in paragraph (a)(3) of this
section. Activities shall assign such series of PII numbers
sequentially. An activity may reserve blocks of numbers or alpha-numeric
numbers for use by its various components.
(b) Illustration of PII number. The following illustrates a properly
configured PII number:
[GRAPHIC] [TIFF OMITTED] TR29JY09.000
[56 FR 36289, July 31, 1991, as amended at 56 FR 67212, Dec. 30, 1991;
59 FR 27668, May 27, 1994; 60 FR 61592, Nov. 30, 1995; 61 FR 50451,
Sept. 26, 1996; 62 FR 34121, June 24, 1997; 64 FR 51075, Sept. 21, 1999;
65 FR 14398, Mar. 16, 2000; 65 FR 39704, June 27, 2000; 68 FR 7439, Feb.
14, 2003; 68 FR 64557, Nov. 14, 2003; 69 FR 63327, Nov. 1, 2004; 74 FR
37643, 37646, July 29, 2009; 77 FR 35879, June 15, 2012; 78 FR 30232,
May 22, 2013]
Sec. 204.7004 Supplementary PII numbers.
(a) Uses of the supplementary number. Use supplementary numbers with
the basic PII number, to identify--
(1) Amendments to solicitations;
(2) Modifications to contracts and agreements, including provisioned
item orders; and
(3) Calls or orders under contracts, basic ordering agreements, or
blanket purchase agreements, issued by the contracting office or by a
DoD activity other than the contracting office, including DoD orders
against Federal supply schedules.
(b) Amendments to solicitations. Number amendments to solicitations
sequentially using a four position numeric serial number added to the
basic PII number and beginning with 0001, e.g., N00062-91-R-1234-0001.
[[Page 28]]
(c) Modifications to contracts and agreements. (1) Number
modifications to contracts and agreements using a six position alpha-
numeric added to the basic PII number.
(2) Position 1. Identify the office issuing the modification--
(i) Contract administration office--A
(ii) Contracting office--P
(3) Positions 2 through 3. These are the first two digits in a
serial number. They may be either alpha or numeric. Use the letters K,
L, M, N, P, Q, S, T, U, V, W, X, Y, or Z only in the second position and
only in the following circumstances--
(i) Use K, L, M, N, P, and Q in the second position only if the
modification is issued by the Air Force and is a provisioned item order.
(ii) Use S, and only S, in the second position to identify
modifications issued to provide initial or amended shipping instructions
when--
(A) The contract has either FOB origin or destination delivery
terms; and
(B) The price changes.
(iii) Use T, U, V, W, X, or Y, and only those characters, in the
second position to identify modifications issued to provide initial or
amended shipping instructions when--
(A) The contract has FOB origin delivery terms; and
(B) The price does not change.
(iv) Only use Z in the second position to identify a modification
which definitizes a letter contract.
(4) Positions 4 through 6. These positions are always numeric. Use a
separate series of serial numbers for each type of modification listed
in paragraph (c)(3) of this section. Examples of proper numbering for
positions 2-6 (the first position will be either ``A'' or ``P'') are as
follows:
------------------------------------------------------------------------
Provisioned items
order (reserved for Shipping
Normal modification exclusive use by instructions
the Air Force only)
------------------------------------------------------------------------
00001-99999.................... K0001-K9999 S0001-S9999
then......................... KA001-KZ999 SA001-SZ999
A0001-A9999.................... L0001-L9999 T0001-T9999
B0001-B9999.................... LA001-LZ999 TA001-TZ999
and so on to................. M0001-M9999 U0001-U9999
H0001-H9999.................... MA001-MZ999 UA001-UZ999
then......................... N0001-N9999 V0001-V9999
J0001-J9999.................... NA001-NZ999 VA001-VZ999
then......................... P0001-P9999 W0001-W9999
R0001-R9999.................... PA001-PZ999 WA001-WZ999
then......................... Q0001-Q9999 X0001-X9999
AA001-HZ999.................... QA001-QZ999 XA001-XZ999
then......................... ................... Y0001-Y9999
JA001-JZ999.................... ................... YA001-YZ999
RA001-RZ999....................
------------------------------------------------------------------------
(5) If the contract administration office is changing the contract
administration or disbursement office for the first time and is using
computer generated modifications to notify many offices, it uses the six
position supplementary number ARZ999. If either office has to be changed
again during the life of the contract, the supplementary number will be
ARZ998, and on down as needed.
(6) Each office authorized to issue modifications shall assign the
supplementary identification numbers in sequence. Do not assign the
numbers until it has been determined that a modification is to be
issued.
(d) Delivery orders under indefinite delivery contracts, orders
under basic ordering agreements, and calls under blanket purchase
agreements. (1) Calls or orders issued by the office issuing the
contract or agreement. Use a four position alpha-numeric call or order
serial number added to the basic PII number. These shall be identified
by using serial numbers beginning 0001 through 9999. When the numeric
identifiers run out, use alpha characters in the third and fourth
positions. Never use alpha characters in the first and second positions.
(2) Orders placed against another activity's contract or agreement.
(i) If the office placing the order or call is different from the
office identified in the basic PII number, assign a serial number to the
order or call. The first and second positions contain the call/order
code assigned to the ordering office in accordance with 204.7005. Do not
use the letters A or P in the first position. The third and fourth
positions are a two position serial number assigned by the ordering
office. The series will begin with 01. When the numbers exceed 99, the
office will assign a uniform series of identifiers containing alpha and/
or numeric characters, e.g., Basic : N00383-91-D-0001 serial
: TU01.
[[Page 29]]
(ii) If an office is placing calls against non-DoD blanket purchase
agreements or orders under non-DoD issued contracts (including Federal
Supply Schedules, Governmentwide acquisition contracts, and multi-agency
contracts), or basic ordering agreements, the office shall identify the
instrument with a 13 position supplementary PII number using an F in the
9th position. Do not use the same supplementary PII number with an F in
the 9th position on more than one order. Modifications to these calls or
orders shall be numbered in accordance with paragraph (c) of this
section.
(e) Modifications to calls or orders. Use a two position alpha-
numeric suffix, known as a call or order modification indicator, to
identify a modification to a call or order.
(1) Modifications to a call or order issued by a purchasing office
begin with 01, 02, and so on through 99, then B1 through B9, BA through
BZ, C1 through C9, and so on through ZZ.
(2) Modifications to a call or order issued by a contract
administration office begin with 1A, 1B, and so on through 9Z, followed
by A1, A2, and so on to A9, then AA, AB, and so on through AZ.
[64 FR 43099, Aug. 9, 1999, as amended at 68 FR 64557, Nov. 14, 2003; 78
FR 30232, May 22, 2013]
Sec. 204.7005 Assignment of order codes.
(a) Defense Procurement and Acquisition Policy, Program Development
and Implementation, maintains the order code assignments for use in the
first two positions of an order number when an activity places an order
against another activity's contract or agreement (see 204.7004(d)(2)).
(b) Contracting activities shall follow the procedures at PGI
204.7005 for requests for assignment of or changes in two-character
order codes.
[76 FR 38047, June 29, 2011]
Sec. 204.7006 Cross reference to Federal Procurement Data System.
Detailed guidance on mapping PII and supplementary PII numbers
stored in the Electronic Document Access system to data elements
reported in the Federal Procurement Data System can be found in PGI
204.7006.
[75 FR 59102, Sept. 27, 2010]
Sec. 204.7007 Order of application for modifications.
(a) Circumstances may exist in which the numeric order of the
modifications to a contract is not the order in which the changes to the
contract actually take effect.
(b) In order to determine the sequence of modifications to a
contract or order, the modifications will be applied in the following
order:
(1) Modifications will be applied in order of the effective date on
the modification;
(2) In the event of two or more modifications with the same
effective date, modifications will be applied in signature date order;
(3) In the event of two or more modifications with the same
effective date and the same signature date, procuring contracting office
modifications will be applied in numeric order, followed by contract
administration office modifications in numeric order.
[77 FR 30368, May 22, 2012]
Subpart 204.71_Uniform Contract Line Item Numbering System
Sec. 204.7100 Scope.
This subpart prescribes policies and procedures for assigning
contract line item numbers.
Sec. 204.7101 Definitions.
Accounting classification reference number (ACRN) means any
combination of a two position alpha/numeric code used as a method of
relating the accounting classification citation to detailed line item
information contained in the schedule.
Attachment means any documentation, appended to a contract or
incorporated by reference, which does not establish a requirement for
deliverables.
Definitized item, as used in this subpart, means an item for which a
firm price has been established in the basic contract or by
modification.
Exhibit means a document, referred to in a contract, which is
attached and
[[Page 30]]
establishes requirements for deliverables. The term shall not be used to
refer to any other kind of attachment to a contract. The DD Form 1423,
Contract Data Requirements List, is always an exhibit, rather than an
attachment.
Nonseverable deliverable, as used in this subpart, means a
deliverable item that is a single end product or undertaking, entire in
nature, that cannot be feasibly subdivided into discrete elements or
phases without losing its identity.
Undefinitized item, as used in this subpart, means an item for which
a price has not been established in the basic contract or by
modification.
[56 FR 36289, July 31, 1991, as amended at 60 FR 34468, July 3, 1995; 70
FR 58982, Oct. 11, 2005]
Sec. 204.7102 Policy.
(a) The numbering procedures of this subpart shall apply to all--
(1) Solicitations;
(2) Solicitation line and subline item numbers;
(3) Contracts as defined in FAR Subpart 2.1;
(4) Contract line and subline item numbers;
(5) Exhibits;
(6) Exhibit line items; and
(7) Any other document expected to become part of the contract.
(b) The numbering procedures are mandatory for all contracts where
separate contract line item numbers are assigned, unless--
(1) The contract is an indefinite-delivery type for petroleum
products against which posts, camps, and stations issue delivery orders
for products to be consumed by them; or
(2) The contract is a communications service authorization issued by
the Defense Information Systems Agency's Defense Information Technology
Contracting Organization.
[71 FR 9269, Feb. 23, 2006, as amended at 77 FR 76937, Dec. 31, 2012]
Sec. 204.7103 Contract line items.
Sec. 204.7103-1 Criteria for establishing.
Contracts shall identify the items or services to be acquired as
separate contract line items unless it is not feasible to do so.
(a) Contract line items shall have all four of the following
characteristics; however, there are exceptions within the
characteristics, which may make establishing a separate contract line
item appropriate even though one of the characteristics appears to be
missing--
(1) Single unit price. The item shall have a single unit price or a
single total price, except--
(i) If the item is not separately priced (NSP) but the price is
included in the unit price of another contract line item, enter NSP
instead of the unit price;
(ii) When there are associated subline items, established for other
than informational reasons, and those subline items are priced in
accordance with 204.7104;
(iii) When the items or services are being acquired on a cost-
reimbursement contract;
(iv) When the contract is for maintenance and repair services (e.g.,
a labor hour contract) and firm prices have been established for
elements of the total price of an item but the actual number and
quantity of the elements are not known until performance. The
contracting officer may structure these contracts to reflect a firm or
estimated total amount for each line item;
(v) When the contract line item is established to refer to an
exhibit or an attachment (if management needs dictate that a unit price
be entered, the price shall be set forth in the item description block
and enclosed in parentheses); or
(vi) When the contract is an indefinite delivery type contract and
provides that the price of an item shall be determined at the time a
delivery order is placed and the price is influenced by such factors as
the quantity ordered (e.g., 10-99 @ $1.00, 100-249 @ $.98, 250+ @ $.95),
the destination, the FOB point, or the type of packaging required.
(2) Separately identifiable. A contract line item must be identified
separately from any other items or services on the contract.
(i) Supplies are separately identifiable if they have no more than
one--
[[Page 31]]
(A) National stock number (NSN);
(B) Item description; or
(C) Manufacturer's part number.
(ii) Services are separately identifiable if they have no more than
one--
(A) Scope of work; or
(B) Description of services.
(iii) This requirement does not apply if there are associated
subline items, established for other than informational reasons, and
those subline items include the actual detailed identification in
accordance with 204.7104. Where this exception applies, use a general
narrative description instead of the contract item description.
(3) Separate delivery schedule. Each contract line item or service
shall have its own delivery schedule, period of performance, or
completion date expressly stated (``as required'' constitutes an
expressly stated delivery term).
(i) The fact that there is more than one delivery date, destination,
performance date, or performance point may be a determining factor in
the decision as to whether to establish more than one contract line
item.
(ii) If a contract line item has more than one destination or
delivery date, the contracting officer may create individual contract
line items for the different destinations or delivery dates, or may
specify the different delivery dates for the units by destination in the
delivery schedule.
(4) Single accounting classification citation. (i) Each contract
line item shall reference a single accounting classification citation
except as provided in paragraph (a)(4)(ii) of this subsection.
(ii) The use of multiple accounting classification citations for a
contract line item is authorized in the following situations:
(A) A single, nonseverable deliverable to be paid for with R&D or
other funds properly incrementally obligated over several fiscal years
in accordance with DoD policy;
(B) A single, nonseverable deliverable to be paid for with different
authorizations or appropriations, such as in the acquisition of a
satellite or the modification of production tooling used to produce
items being acquired by several activities; or
(C) A modification to an existing contract line item for a
nonseverable deliverable that results in the delivery of a modified
item(s) where the item(s) and modification are to be paid for with
different accounting classification citations.
(iii) When the use of multiple accounting classification citations
is authorized for a single contract line item, establish informational
subline items for each accounting classification citation in accordance
with 204.7104-1(a).
(b) All subline items and exhibit line items under one contract line
item shall be the same contract type as the contract line item.
(c) For a contract that contains a combination of fixed-price line
items, time-and-materials/labor-hour line items, and/or cost-
reimbursement line items, identify the contract type for each contract
line item in Section B, Supplies or Services and Prices/Costs, to
facilitate appropriate payment.
(d) Exhibits may be used as an alternative to putting a long list of
contract line items in the schedule. If exhibits are used, create a
contract line item citing the exhibit's identifier. See 204.7105(a).
(e) If the contract involves a test model or a first article which
must be approved, establish a separate contract line item or subline
item for each item of supply or service which must be approved. If the
test model or first article consists of a lot composed of a mixture of
items, a single line item or subline item may be used for the lot.
(f) If a supply or service involves ancillary functions, like
packaging and handling, transportation, payment of state or local taxes,
or use of reusable containers, and these functions are normally
performed by the contractor and the contractor is normally entitled to
reimbursement for performing these functions, do not establish a
separate contract line item solely to account for these functions.
However, do identify the functions in the contract schedule. If the
offeror separately prices these functions, contracting officers may
establish separate contract line items for the functions; however, the
separate line items must conform to the requirements of paragraph (a) of
this subsection.
[[Page 32]]
(g) Certain commercial items and initial provisioning spares for
weapons systems are requested and subsequently solicited using units of
measure such as kit, set, or lot. However, there are times when
individual items within that kit, set, or lot are not grouped and
delivered in a single shipment. This creates potential contract
administration issues with inspection, acceptance, and payment. In such
cases, solicitations should be structured to allow offerors to provide
information about products that may not have been known to the
Government prior to solicitation and propose an alternate line item
structure as long as the alternate is consistent with the requirements
of 204.71, which provides explicit guidance on the use of contract line
items and subline items, and with PGI 204.71.
[56 FR 36289, July 31, 1991, as amended at 60 FR 34468, July 3, 1995; 60
FR 43191, Aug. 18, 1995; 70 FR 58982, Oct. 11, 2005; 76 FR 58139, Sept.
20, 2011]
Sec. 204.7103-2 Numbering procedures.
Follow the procedures at PGI 204.7103-2 for numbering contract line
items.
[70 FR 58983, Oct. 11, 2005]
Sec. 204.7104 Contract subline items.
Sec. 204.7104-1 Criteria for establishing.
Contract subline items provide flexibility to further identify
elements within a contract line item for tracking performance or
simplifying administration. There are only two kinds of subline items:
those which are informational in nature and those which consist of more
than one item that requires separate identification.
(a) Informational subline items. (1) This type of subline item
identifies information that relates directly to the contract line item
and is an integral part of it (e.g., parts of an assembly or parts of a
kit). These subline items shall not be scheduled separately for
delivery, identified separately for shipment or performance, or priced
separately for payment purposes.
(2) The informational subline item may include quantities, prices,
or amounts, if necessary to satisfy management requirements. However,
these elements shall be included within the item description in the
supplies/services column and enclosed in parentheses to prevent
confusing them with quantities, prices, or amounts that have contractual
significance. Do not enter these elements in the quantity and price
columns.
(3) Informational subline items shall be used to identify each
accounting classification citation assigned to a single contract line
item number when use of multiple citations is authorized (see 204.7103-
1(a)(4)(ii)).
(b) Separately identified subline items. (1) Subline items will be
used instead of contract line items to facilitate payment, delivery
tracking, contract funds accounting, or other management purposes. Such
subline items shall be used when items bought under one contract line
item number--
(i) Are to be paid for from more than one accounting classification.
A subline item shall be established for the quantity associated with the
single accounting classification citation. Establish a line item rather
than a subline item if it is likely that a subline item may be assigned
additional accounting classification citations at a later date. Identify
the funding as described in 204.7104-1(a)(3);
(ii) Are to be packaged in different sizes, each represented by its
own NSN;
(iii) Have collateral costs, such as packaging costs, but those
costs are not a part of the unit price of the contract line item;
(iv) Have different delivery dates or destinations or requisitions,
or a combination of the three; or
(v) Identify parts of an assembly or kit which--
(A) Have to be separately identified at the time of shipment or
performance; and
(B) Are separately priced.
(2) Each separately identified contract subline item shall have its
own--
(i) Delivery schedule, period of performance, or completion date;
(ii) Unit price or single total price or amount (not separately
priced (NSP) is acceptable as an entry for price or amount if the price
is included in another subline item or a different contract line item).
This requirement does not apply--
[[Page 33]]
(A) If the subline item was created to refer to an exhibit or an
attachment. If management needs dictate that a unit price be entered,
the price shall be set forth in the item description block of the
schedule and enclosed in parentheses; or
(B) In the case of indefinite delivery contracts described at
204.7103-1(a)(1)(vi).
(iii) Identification (e.g., NSN, item description, manufacturer's
part number, scope of work, description of services).
(3) Unit prices and extended amounts.
(i) The unit price and total amount for all subline items may be
entered at the contract line item number level if the unit price for the
subline items is identical. If there is any variation, the subline item
unit prices shall be entered at the subline item level only.
(ii) The unit price and extended amounts may be entered at the
subline items level.
(iii) The two methods in paragraphs (b)(3) (i) and (ii) of this
subsection shall not be combined in a contract line item.
(iv) When the price for items not separately priced is included in
the price of another subline item or contract line item, it may be
necessary to withhold payment on the priced subline item until all the
related subline items that are not separately priced have been
delivered. In those cases, use the clause at 252.204-7002, Payment for
Subline Items Not Separately Priced.
[56 FR 36289, July 31, 1991, as amended at 60 FR 34468, July 3, 1995; 68
FR 75200, Dec. 30, 2003]
Sec. 204.7104-2 Numbering procedures.
Follow the procedures at PGI 204.7104-2 for numbering contract
subline items.
[70 FR 58983, Oct. 11, 2005]
Sec. 204.7105 Contract exhibits and attachments.
Follow the procedures at PGI 204.7105 for use and numbering of
contract exhibits and attachments.
[71 FR 9269, Feb. 23, 2006]
Sec. 204.7106 Contract modifications.
(a) If new items are added, assign new contract line or subline item
numbers or exhibit line item numbers, in accordance with the procedures
established at 204.7103, 204.7104, and 204.7105.
(b) Modifications to existing contract line items or exhibit line
items. (1) If the modification relates to existing contract line items
or exhibit line items, the modification shall refer to those item
numbers.
(2) If the contracting officer decides to assign new identifications
to existing contract or exhibit line items, the following rules apply--
(i) Definitized and undefinitized items. (A) The original line item
or subline item number may be used if the modification applies to the
total quantity of the original line item or subline.
(B) The original line item or subline item number may be used if the
modification makes only minor changes in the specifications of some of
the items ordered on the original line item or subline item and the
resulting changes in unit price can be averaged to provide a new single
unit price for the total quantity. If the changes in the specifications
make the item significantly distinguishable from the original item or
the resulting changes in unit price cannot be averaged, create a new
line item.
(C) If the modification affects only a partial quantity of an
existing contract line item or subline item or exhibit line item and the
change does not involve either the delivery date or the ship-to/mark-for
data, the original contract line item or subline item or exhibit line
item number shall remain with the unchanged quantity. Assign the changed
quantity the next available number.
(ii) Undefinitized items. In addition to the rules in paragraph
(b)(2)(i), the following additional rules apply to undefinitized items--
(A) If the modification is undefinitized and increases the quantity
of an existing definitized item, assign the undefinitized quantity the
next available number.
(B) If the modification increases the quantity of an existing
undefinitized item, the original contract line item or subline item or
exhibit line item may
[[Page 34]]
be used if the unit price for the new quantity is expected to be the
same as the price for the original quantity. If the unit prices of the
two quantities will be different, assign the new quantity the next
available number.
(C) If the modification both affects only a partial quantity of the
existing contract line item or subline item or exhibit line item and
definitizes the price for the affected portion, the definitized portion
shall retain the original item number. If there is any undefinitized
portion of the item, assign it the next available number. However, if
the modification definitizes the price for the whole quantity of the
line item, and price impact of the changed work can be apportioned
equally over the whole to arrive at a new unit price, the quantity with
the changes can be added into the quantity of the existing item.
(D) If the modification affects only a partial quantity of an
existing contract line item or subline item or exhibit line item but
does not change the delivery schedule or definitize price, the unchanged
portion shall retain the original contract line item or subline item or
exhibit line item number. Assign the changed portion the next available
number.
(3) If the modification will decrease the amount obligated--
(i) There shall be coordination between the administrative and
procuring contracting offices before issuance of the modification; and
(ii) The contracting officer shall not issue the modification unless
sufficient unliquidated obligation exists or the purpose is to recover
monies owed to the Government.
[56 FR 36289, July 31, 1991, as amended at 70 FR 58983, Oct. 11, 2005;
77 FR 76937, Dec. 31, 2012; 78 FR 13543, Feb. 28, 2013]
Sec. 204.7107 Contract accounting classification reference number
(ACRN) and agency accounting identifier (AAI).
Traceability of funds from accounting systems to contract actions is
accomplished using ACRNs and AAIs. Follow the procedures at PGI 204.7107
for use of ACRNs and AAIs.
[74 FR 52895, Oct. 15, 2009]
Sec. 204.7108 Payment instructions.
Follow the procedures at PGI 204.7108 for inclusion of payment
instructions in contracts.
[70 FR 58983, Oct. 11, 2005]
Sec. 204.7109 Solicitation provision and contract clause.
(a) Use the clause at 252.204-7006, Billing Instructions, in
solicitations and contracts if Section G includes--
(1) Any of the standard payment instructions at PGI 204.7108(d)(1)
through (6); or
(2) Other payment instructions, in accordance with PGI
204.7108(d)(12), that require contractor identification of the contract
line item(s) on the payment request.
(b) Use the provision at 252.204-7011, Alternative Line Item
Structure, in solicitations using FAR part 12 procedures for the
acquisition of commercial items or for initial provisioning spares.
[76 FR 58139, Sept. 20, 2011, as amended at 78 FR 37983, June 25, 2013]
Subpart 204.72_Contractor Identification
Sec. 204.7200 Scope of subpart.
This subpart prescribes uniform policies and procedures for
identification of commercial and Government entities when it is
necessary to--
(a) Exchange data with another contracting activity, including
contract administration activities and contract payment activities, or
comply with the reporting requirements of subpart 204.6; or
(b) Identify contractors for the purpose of developing computerized
acquisition systems or solicitation mailing lists.
[64 FR 43099, Aug. 9, 1999]
Sec. 204.7201 Definitions.
(a) Commercial and Government Entity (CAGE) code means--
(1) A code assigned by the DLA Logistics Information Service to
identify a commercial or Government entity; or
(2) A code assigned by a member of the North Atlantic Treaty
Organization (NATO) that DLA Logistics Information Service records and
maintains
[[Page 35]]
in the CAGE master file. This type of code is known as an ``NCAGE
code.''
(b) Contractor identification code means a code that the contracting
office uses to identify an offeror. The three types of contractor
identification codes are CAGE codes, Data Universal Numbering System
(DUNS) numbers, and Taxpayer Identification Numbers (TINs).
[64 FR 43099, Aug. 9, 1999, as amended at 76 FR 21809, Apr. 19, 2011]
Sec. 204.7202 General.
Sec. 204.7202-1 CAGE codes.
(a) DLA Logistics Information Service assigns or records and
maintains CAGE codes to identify commercial and Government entities. DoD
4000.25-5-M, Military Standard Contract Administration Procedures
(MILSCAP), and Volume 7 of DoD 4100.39-M, Federal Logistics Information
System (FLIS) Procedures Manual, prescribe use of CAGE codes.
(b)(1) If a prospective contractor located in the United States must
register in the System for Award Management (SAM) database (see FAR
subpart 4.11) and does not have a CAGE code, DLA Logistics Information
Service will assign a CAGE code when the prospective contractor submits
its request for registration in the SAM database. Foreign registrants
must obtain a North Atlantic Treaty Organization CAGE (NCAGE) code in
order to register in the SAM database. NCAGE codes may be obtained from
the Codification Bureau in the foreign registrant's country. Additional
information on obtaining NCAGE codes is available at http://
www.dlis.dla.mil/Forms/Form--AC135.asp.
(2) If registration in the SAM database is not required, the
prospective contractor's CAGE code is not already available in the
contracting office, and the prospective contractor does not respond to
the provision at 252.204-7001, Commercial and Government Entity (CAGE)
Code Reporting, use the following procedures:
(i) To identify the prospective contractor's CAGE code, use--
(A) The monthly H-series CD-ROM that contains the H-4/H-8 CAGE
master file issued by DLA Logistics Information Service. (Their address
is: Customer Service, Federal Center, 74 Washington Avenue, North,
Battle Creek, MI 49017-3084. Their telephone number is: Toll-free 888-
352-9333);
(B) The on-line access to the CAGE file through the DLA Logistics
Information System [Service];
(C) The on-line access to the Defense Logistics Agency (DLA) CAGE
file through the DLA Network or dial-up capability; or
(D) The Internet to access the CAGE Lookup Server at http://
www.dlis.dla.mil/cage--welcome.asp.
(ii) If no CAGE code is identified through use of the procedures in
paragraph (b)(2)(i) of this subsection, ask DLA Logistics Information
Service to assign a CAGE code. Submit a DD Form 2051, Request for
Assignment of a Commercial and Government Entity (CAGE) Code, (or
electronic equivalent) to the address in paragraph (b)(2)(i)(A) of this
subsection, ATTN: DLIS-SBB. The contracting office completes Section A
of the DD Form 2051, and the contractor completes Section B. The
contracting office must verify Section B before submitting the form.
(c) Direct questions on obtaining computer tapes, electronic
updates, or code assignments to DLA Logistics Information Service
Customer Service: Toll-free 888-227-2423 or 888-352-9333; DSN 932-4725;
or commercial 616-961-4725.
[64 FR 43100, Aug. 9, 1999, as amended at 65 FR 63804, Oct. 25, 2000; 67
FR 49252, July 30, 2002; 68 FR 15380, Mar. 31, 2003; 68 FR 64558, Nov.
14, 2003; 76 FR 21809, Apr. 19, 2011; 78 FR 28757, May 16, 2013]
Sec. 204.7202-2 DUNS numbers.
Requirements for use of DUNS numbers are in FAR 4.605(b) and
4.607(a).
[74 FR 34265, July 15, 2009]
Sec. 204.7202-3 TINs.
Requirements for use of TINs are in FAR subpart 4.9.
[64 FR 43100, Aug. 9, 1999]
Sec. 204.7203 Responsibilities of contracting officers.
(a) Assist offerors in obtaining the required CAGE codes.
[[Page 36]]
(b) Do not deny a potential offeror a solicitation package because
the offeror does not have a contractor identification code.
[64 FR 43100, Aug. 9, 1999, as amended at 74 FR 37645, July 29, 2009]
Sec. 204.7204 Maintenance of the CAGE file.
(a) DLA Logistics Information Service will accept written requests
for changes to CAGE files, other than name changes, from the following
entities:
(1) The entity identified by the code. The entity must use company
letterhead to forward the request.
(2) The contracting office.
(3) The contract administration office.
(b) Submit requests for changes to CAGE files on DD Form 2051, or
electronic equivalent, to--
DLA Logistics Information Service, DLIS-SBB, Federal Center, 74
Washington Avenue, North, Battle Creek, MI 49017-3084. Telephone
Numbers: toll-free 888-352-9333, DSN 932-4725, commercial 616-961-4725.
Facsimile: 616-961-4388, -4485.
(c) The contracting officer responsible for execution of a change-
of-name agreement (see FAR subpart 42.12) must submit the agreement to
DLIS-SBB. If there are no current contracts, each contracting and
contract administration office receiving notification of changes from
the commercial entity must forward a copy of the change notice annotated
with the CAGE code to DLIS-SBB unless the change notice indicates that
DLIS-SBB already has been notified.
(d) Additional guidance for maintaining CAGE codes is in Volume 7 of
DoD 4100.39-M, Federal Logistics Information System (FLIS) Procedures
Manual.
[64 FR 43100, Aug. 9, 1999; 64 FR 46474, Aug. 25, 1999, as amended at 65
FR 63804, Oct. 25, 2000; 76 FR 21809, Apr. 19, 2011]
Sec. 204.7205 Novation agreements, mergers and sales of assets.
Contracting officers shall process and execute novation agreements
in accordance with FAR Subpart 42.12, Novation and Change-of-Name
Agreements. These actions are independent of code and name assignments
made as a result of the occasion which created the need for the novation
agreement. The maintenance activity will determine which entity(s) will
retain the existing code(s) and which entities will be assigned new
codes. The contracting officer responsible for processing the novation
agreement shall provide the maintenance activity with the following
information:
(a) Name(s), address(es), and code(s) of the contractor(s)
transferring the original contractual rights and obligations
(transferor).
(b) Name(s), address(es), and code(s) (if any) of the entity who is
the successor in interest (transferee).
(c) Name(s), address(es), and code(s) (if any) of the entity who is
retaining or receiving the rights to the technical data.
(d) Description of the circumstances surrounding the novation
agreement and especially the relationship of each entity to the other.
[56 FR 36289, July 31, 1991, as amended at 66 FR 49861, Oct. 1, 2001]
Sec. 204.7206 Using CAGE codes to identify agents and brokers.
Authorized agents and brokers are entities and, as such, may be
assigned CAGE codes for identification and processing purposes.
(a) A single CAGE code will be assigned to the agent/broker
establishment in addition to any codes assigned to the entities
represented by the agent/broker, i.e., only one code will be assigned to
a specific agent/broker entity regardless of the number of firms
represented by that agent/broker.
(b) Additional codes may be assigned to an agent/broker if they meet
the criteria for assigning additional codes for entities, e.g.,
different location.
(c) Codes will not be assigned to an agent/broker in care of the
entity being represented or in any way infer that the agent/broker is a
separate establishment bearing the name of the entity represented by the
agent/broker.
[56 FR 36289, July 31, 1991, as amended at 61 FR 51032, Sept. 30, 1996;
62 FR 48182, Sept. 15, 1997]
[[Page 37]]
Sec. 204.7207 Solicitation provision.
Use the provision at 252.204-7001, Commercial and Government Entity
(CAGE) Code Reporting, in solicitations when--
(a) The solicitation does not include the clause at FAR 52.204-7,
System for Award Management; and
(b) The CAGE codes for the potential offerors are not available to
the contracting office.
[66 FR 47097, Sept. 11, 2001, as amended at 68 FR 64558, Nov. 14, 2003;
78 FR 28757, May 16, 2012]
[[Page 38]]
SUBCHAPTER B_ACQUISITION PLANNING
PART 205_PUBLICIZING CONTRACT ACTIONS
Subpart 205.2_Synopses of Proposed Contract Actions
Sec.
Sec. 205.203 Publicizing and response time.
Sec. 205.205 Special situations.
Sec. 205.207 Preparation and transmittal of synopses.
Subpart 205.3_Synopses of Contract Awards
Sec. 205.301 General.
Sec. 205.303 Announcement of contract awards.
Subpart 205.4_Release of Information
Sec. 205.470 Contract clause.
Subpart 205.5_Paid Advertisements
Sec. 205.502 Authority.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36302, July 31, 1991, unless otherwise noted.
Subpart 205.2_Synopses of Proposed Contract Actions
Sec. 205.203 Publicizing and response time.
(b) Allow at least 45 days response time when requested by a
qualifying or designated country source (as these terms are used in part
225) and the request is consistent with the Government's requirement.
(S-70) When using competitive procedures, if a solicitation allowed
fewer than 30 days for receipt of offers and resulted in only one offer,
the contracting officer shall resolicit, allowing an additional period
of at least 30 days for receipt of offers, except as provided in
215.371-4 and 215.371-5.
[56 FR 36302, July 31, 1991, as amended at 77 FR 39137, June 29, 2012]
Sec. 205.205-70 Notification of bundling of DoD contracts.
(a) When a proposed acquisition is funded entirely using DoD funds
and potentially involves bundling, the contracting officer shall, at
least 30 days prior to the release of a solicitation or 30 days prior to
placing an order without a solicitation, publish in FedBizOpps.gov (or
any successor site) a notification of the intent to bundle the
requirement. In addition, if the agency has determined that measurably
substantial benefits are expected to be derived as a result of bundling,
the notification shall include a brief description of those benefits
(see FAR 7.107).
(b) This requirement is in addition to the notification requirements
at FAR 10.001(c)(2)(i) and (ii).
[75 FR 40716, July 13, 2010]
Sec. 205.207 Preparation and transmittal of synopses.
(a)(i) For numbering synopsis notices, follow the procedures at PGI
205.207(a)(i).
(d)(i) For acquisitions being considered for historically black
college and university and minority institution set-asides under
226.370--
(A) Cite the appropriate Numbered Note; and
(B) Include the notice at PGI 205.207(d)(i).
(ii) For broad agency announcement notices, see 235.016.
(iii) For special notices for small business events, follow the
procedures at PGI 205.207(d)(ii).
[69 FR 63328, Nov. 1, 2004, as amended at 70 FR 73149, Dec. 9, 2005, 76
FR 76319, Dec. 7, 2011]
Subpart 205.3_Synopses of Contract Awards
Sec. 205.301 General.
(a)(S-70) Synopsis of exceptions to domestic source requirements.
(i) In accordance with 10 U.S.C. 2533a(k), contracting officers also
must synopsize through the GPE, awards exceeding the simplified
acquisition threshold that are for the acquisition of any clothing,
fiber, yarn, or fabric items described in 225.7002-1(a)(2) through (10),
if--
(A) The Secretary concerned has determined that domestic items are
not
[[Page 39]]
available, in accordance with 225.7002-2(b); or
(B) The acquisition is for chemical warfare protective clothing, and
the contracting officer has determined that an exception to domestic
source requirements applies because the acquisition furthers an
agreement with a qualifying country, in accordance with 225.7002-2(n).
(ii) The synopsis must be submitted in sufficient time to permit its
publication not later than 7 days after contract award.
(iii) In addition to the information otherwise required in a
synopsis of contract award, the synopsis must include one of the
following statements as applicable:
(A) ``The exception at DFARS 225.7002-2(b) applies to this
acquisition, because the Secretary concerned has determined that items
grown, reprocessed, reused, or produced in the United States cannot be
acquired as and when needed in satisfactory quality and sufficient
quantity at U.S. market prices.''
(B) ``The exception at DFARS 225.7002-2(n) applies to this
acquisition, because the contracting officer has determined that this
acquisition of chemical warfare protective clothing furthers an
agreement with a qualifying country identified in DFARS 225.003(10).''
[71 FR 58536, Oct. 4, 2006, as amended at 74 FR 52895, Oct. 15, 2009; 74
FR 59914, Nov. 19, 2009]
Sec. 205.303 Announcement of contract awards.
(a) Public announcement. (i) The threshold for DoD awards is $6.5
million. Report all contractual actions, including modifications, that
have a face value, excluding unexercised options, of more than $6.5
million.
(A) For undefinitized contractual actions, report the not-to-exceed
(NTE) amount. Later, if the definitized amount exceeds the NTE amount by
more than $6.5 million, report only the amount exceeding the NTE.
(B) For indefinite delivery, time and material, labor hour, and
similar contracts, report the initial award if the estimated face value,
excluding unexercised options, is more than $6.5 million. Do not report
orders up to the estimated value, but after the estimated value is
reached, report subsequent modifications and orders that have a face
value of more than $6.5 million.
(C) Do not report the same work twice.
(ii) Departments and agencies submit the information--
(A) To the Office of the Assistant Secretary of Defense (Public
Affairs);
(B) By the close of business the day before the date of the proposed
award;
(C) Using report control symbol DD-LA- (AR) 1279;
(D) Including, as a minimum, the following--
(1) Contract data. Contract number, modification number, or delivery
order number, face value of this action, total cumulative face value of
the contract, description of what is being bought, contract type,
whether any of the buy was for foreign military sales (FMS) and
identification of the FMS customer;
(2) Competition information. Number of solicitations mailed and
number of offers received;
(3) Contractor data. Name, address, and place of performance (if
significant work is performed at a different location);
(4) Funding data. Type of appropriation and fiscal year of the
funds, and whether the contract is multiyear (see FAR Subpart 17.1); and
(5) Miscellaneous data. Identification of the contracting office,
the contracting office point of contact, known congressional interest,
and the information release date.
(iii) Departments and agencies, in accordance with department/agency
procedures and concurrent with the public announcement, shall provide
information similar to that required by paragraph (a)(ii) of this
section to members of Congress in whose state or district the contractor
is located and the work is to be performed.
[56 FR 36302, July 31, 1991, as amended at 56 FR 67212, Dec. 30, 1991;
71 FR 75892, Dec. 19, 2006; 75 FR 45073, Aug. 2, 2010]
[[Page 40]]
Subpart 205.4_Release of Information
Sec. 205.470 Contract clause.
Use the clause at 252.205-7000, Provision of Information to
Cooperative Agreement Holders, in solicitations and contracts, including
solicitations and contracts using FAR part 12 procedures for the
acquisition of commercial items, that are expected to exceed $1,000,000.
This clause implements 10 U.S.C. 2416.
[69 FR 63328, Nov. 1, 2004, as amended at 70 FR 8537, Feb. 22, 2005; 78
FR 37983, June 25, 2013]
Subpart 205.5_Paid Advertisements
Sec. 205.502 Authority.
(a) Newspapers. Heads of contracting activities are delegated
authority to approve the publication of paid advertisements in
newspapers.
[69 FR 63328, Nov. 1, 2004]
PART 206_COMPETITION REQUIREMENTS
Sec.
Sec. 206.001 Applicability.
Subpart 206.2_Full and Open Competition After Exclusion of Sources
Sec. 206.202 Establishing or maintaining alternative sources.
Sec. 206.203 Set-asides for small business concerns.
Subpart 206.3_Other Than Full and Open Competition
Sec. 206.302 Circumstances permitting other than full and open
competition.
Sec. 206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
Sec. 206.302-2 Unusual and compelling urgency.
Sec. 206.302-3 Industrial mobilization, engineering, developmental, or
research capability, or expert services.
Sec. 206.302-3-70 Solicitation provision.
Sec. 206.302-4 International agreement.
Sec. 206.302-5 Authorized or required by statute.
Sec. 206.302-7 Public interest.
Sec. 206.303 Justifications.
Sec. 206.303-70 Acquisitions in support of operations in Afghanistan.
Sec. 206.304 Approval of the justification.
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
Source: 56 FR 36303, July 31, 1991, unless otherwise noted.
Sec. 206.001 Applicability.
(b) As authorized by 10 U.S.C. 1091, contracts awarded to
individuals using the procedures at 237.104(b)(ii) are exempt from the
competitive requirements of FAR part 6.
(S-70) Also excepted from this part are follow-on production
contracts for products developed pursuant to the ``other transactions''
authority of 10 U.S.C. 2371 for prototype projects when--
(1) The other transaction agreement includes provisions for a
follow-on production contract;
(2) The contracting officer receives sufficient information from the
agreements officer and the project manager for the prototype other
transaction agreement, which documents that the conditions set forth in
10 U.S.C. 2371 note, subsections (f)(2) (A) and (B) (see 32 CFR 3.9(d)),
have been met; and
(3) The contracting officer establishes quantities and prices for
the follow-on production contract that do not exceed the quantities and
target prices established in the other transaction agreement.
[70 FR 2361, Jan. 13, 2005]
Subpart 206.2_Full and Open Competition After Exclusion of Sources
Sec. 206.202 Establishing or maintaining alternative sources.
(a) Agencies may use this authority to totally or partially exclude
a particular source from a contract action.
(b) The determination and findings (D&F) and the documentation
supporting the D&F shall identify the source to be excluded from the
contract action. Include the information at PGI 206.202(b), as
applicable, and any other information that may be pertinent, in the
supporting documentation.
[69 FR 74991, Dec. 15, 2004]
[[Page 41]]
Sec. 206.203 Set-asides for small business concerns.
(b) Also no separate justification or determination and findings is
required for contract actions processed as historically black college
and university and minority institution set-asides (see 226.370).
[63 FR 41973, Aug. 6, 1998, as amended at 76 FR 76319, Dec. 7, 2011]
Subpart 206.3_Other Than Full and Open Competition
Sec. 206.302 Circumstances permitting other than full and open
competition.
Sec. 206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
(a) Authority. (2)(i) Section 8059 of Pub. L. 101-511 and similar
sections in subsequent defense appropriations acts prohibit departments
and agencies from entering into contracts for studies, analyses, or
consulting services (see FAR subpart 37.2) on the basis of an
unsolicited proposal without providing for full and open competition,
unless--
(1) The head of the contracting activity, or a designee no lower
than chief of the contracting office, determines that--
(i) Following thorough technical evaluation, only one source is
fully qualified to perform the proposed work;
(ii) The unsolicited proposal offers significant scientific or
technological promise, represents the product of original thinking, and
was submitted in confidence; or
(iii) The contract benefits the national defense by taking advantage
of a unique and significant industrial accomplishment or by ensuring
financial support to a new product or idea;
(2) A civilian official of the DoD, whose appointment has been
confirmed by the Senate, determines the award to be in the interest of
national defense; or
(3) The contract is related to improvement of equipment that is in
development or production.
(b) Application. This authority may be used for acquisitions of test
articles and associated support services from a designated foreign
source under the DoD Foreign Comparative Testing Program.
[56 FR 36303, July 31, 1991, as amended at 57 FR 14992, Apr. 23, 1992;
58 FR 28463, May 13, 1993; 69 FR 74991, Dec. 15, 2004]
Sec. 206.302-2 Unusual and compelling urgency.
(b) Application. For guidance on circumstances under which use of
this authority may be appropriate, see PGI 206.302-2(b).
[69 FR 74991, Dec. 15, 2004]
Sec. 206.302-3 Industrial mobilization, engineering, developmental, or
research capability, or expert services.
Sec. 206.302-3-70 Solicitation provision.
Use the provision at 252.206-7000, Domestic Source Restriction, in
all solicitations that are restricted to domestic sources under the
authority of FAR 6.302-3.
Sec. 206.302-4 International agreement.
(c) Limitations. Pursuant to 10 U.S.C. 2304(f)(2)(E), the
justifications and approvals described in FAR 6.303 and 6.304 are not
required if the head of the contracting activity prepares a document
that describes the terms of an agreement or treaty or the written
directions, such as a Letter of Offer and Acceptance, that have the
effect of requiring the use of other than competitive procedures for the
acquisition.
[63 FR 67803, Dec. 9, 1998]
Sec. 206.302-5 Authorized or required by statute.
(b) Application. Agencies may use this authority to--
(i) Acquire supplies and services from military exchange stores
outside the United States for use by the armed forces outside the United
States in accordance with 10 U.S.C. 2424(a) and subject to the
limitations of 10 U.S.C. 2424(b). The limitations of 10 U.S.C. 2424(b)
(1) and (2) do not apply to the purchase of soft drinks that are
manufactured in the United States. For the purposes of 10 U.S.C. 2424,
soft drinks manufactured in the United States are
[[Page 42]]
brand name carbonated sodas, manufactured in the United States, as
evidenced by product markings.
(ii) Acquire police, fire protection, airfield operation, or other
community services from local governments at military installations to
be closed under the circumstances in 237.7401 (Section 2907 of Fiscal
Year 1994 Defense Authorization Act (Pub. L. 103-160)).
(c) Limitations. (i) 10 U.S.C. 2361 precludes use of this exception
for awards to colleges or universities for the performance of research
and development, or for the construction of any research or other
facility, unless--
(A) The statute authorizing or requiring award specifically--
(1) States that the statute modifies or supersedes the provisions of
10 U.S.C. 2361,
(2) Identifies the particular college or university involved, and
(3) States that award is being made in contravention of 10 U.S.C.
2361(a); and
(B) The Secretary of Defense provides Congress written notice of
intent to award. The contract cannot be awarded until 180 days have
elapsed since the date Congress received the notice of intent to award.
Contracting activities must submit a draft notice of intent with
supporting documentation through channels to the Director of Defense
Procurement and Acquisition Policy, Office of the Under Secretary of
Defense (Acquisition, Technology, and Logistics).
(ii) The limitation in paragraph (c)(i) of this subsection applies
only if the statute authorizing or requiring award was enacted after
September 30, 1989.
(iii) Subsequent statutes may provide different or additional
constraints on the award of contracts to specified colleges and
universities. Contracting officers should consult legal counsel on a
case-by-case basis.
[56 FR 36303, July 31, 1991, as amended at 57 FR 14992, Apr. 23, 1992;
58 FR 28463, May 13, 1993; 59 FR 36089, July 15, 1994; 60 FR 29497, June
5, 1995; 60 FR 40107, Aug. 7, 1995; 65 FR 39704, June 27, 2000; 68 FR
7439, Feb. 14, 2003]
Sec. 206.302-7 Public interest.
(c) Limitations. For the defense agencies, the written determination
to use this authority must be made by the Secretary of Defense.
Sec. 206.303 Justifications.
Sec. 206.303-70 Acquisitions in support of operations in Afghanistan.
The justification and approval addressed in FAR 6.303 is not
required for acquisitions conducted using a procedure specified in
225.7703-1(a).
[73 FR 53152, Sept. 15, 2008, as amended at 78 FR 59856, Sept. 30, 2013]
Sec. 206.304 Approval of the justification.
(a)(4) The Under Secretary of Defense (Acquisition, Technology, and
Logistics) may delegate this authority to--
(A) An Assistant Secretary of Defense; or
(B) For a defense agency, an officer or employee serving in,
assigned, or detailed to that agency who--
(1) If a member of the armed forces, is serving in a rank above
brigadier general or rear admiral (lower half); or
(2) If a civilian, is serving in a position with a grade under the
General Schedule (or any other schedule for civilian officers or
employees) that is comparable to or higher than the grade of major
general or rear admiral.
[61 FR 10285, Mar. 13, 1995, as amended at 61 FR 50451, Sept. 26, 1996;
65 FR 39704, June 27, 2000]
PART 207_ACQUISITION PLANNING
Subpart 207.1_Acquisition Plans
Sec.
Sec. 207.102 Policy.
Sec. 207.103 Agency-head responsibilities.
Sec. 207.104 General procedures.
Sec. 207.105 Contents of written acquisition plans.
Sec. 207.106 Additional requirements for major systems.
Sec. 207.170 Consolidation of contract requirements.
Sec. 207.170-1 Scope.
Sec. 207.170-2 Definitions.
Sec. 207.170-3 Policy and procedures.
Sec. 207.171 Component breakout.
Sec. 207.171-1 Scope.
Sec. 207.171-2 Definition.
Sec. 207.171-3 Policy.
Sec. 207.171-4 Procedures.
Sec. 207.172 Human research.
[[Page 43]]
Subpart 207.4_Equipment Lease or Purchase
Sec. 207.401 Acquisition considerations.
Sec. 207.470 Statutory requirements.
Sec. 207.471 Funding requirements.
Subpart 207.5_Inherently Governmental Functions
Sec. 207.500 Scope of subpart.
Sec. 207.503 Policy.
Subpart 207.70_Buy-to-Budget_Additional Quantities of End Items
Sec. 207.7001 Definition.
Sec. 207.7002 Authority to acquire additional quantities of end items.
Sec. 207.7003 Limitation.
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
Source: 56 FR 36305, July 31, 1991, unless otherwise noted.
Subpart 207.1_Acquisition Plans
Sec. 207.102 Policy.
(a)(1) See 212.102 regarding requirements for a written
determination that the commercial item definition has been met when
using FAR Part 12 procedures.
[73 FR 4114, Jan. 24, 2008]
Sec. 207.103 Agency-head responsibilities.
(d)(i) Prepare written acquisition plans for--
(A) Acquisitions for development, as defined in FAR 35.001, when the
total cost of all contracts for the acquisition program is estimated at
$10 million or more;
(B) Acquisitions for production or services when the total cost of
all contracts for the acquisition program is estimated at $50 million or
more for all years or $25 million or more for any fiscal year; and
(C) Any other acquisition considered appropriate by the department
or agency.
(ii) Written plans are not required in acquisitions for a final buy
out or one-time buy. The terms ``final buy out'' and ``one-time buy''
refer to a single contract that covers all known present and future
requirements. This exception does not apply to a multiyear contract or a
contract with options or phases.
(e) Prepare written acquisition plans for acquisition programs
meeting the thresholds of paragraphs (d)(i)(A) and (B) of this section
on a program basis. Other acquisition plans may be written on either a
program or an individual contract basis.
(g) The program manager, or other official responsible for the
program, has overall responsibility for acquisition planning.
(h) For procurement of conventional ammunition, as defined in DoDD
5160.65, Single Manager for Conventional Ammunition (SMCA), the SMCA
will review the acquisition plan to determine if it is consistent with
retaining national technology and industrial base capabilities in
accordance with 10 U.S.C. 2304(c)(3) and Section 806 of Public Law 105-
261. The department or agency--
(i) Shall submit the acquisition plan to the address in PGI
207.103(h); and
(ii) Shall not proceed with the procurement until the SMCA provides
written concurrence with the acquisition plan. In the case of a non-
concurrence, the SMCA will resolve issues with the Army Office of the
Executive Director for Conventional Ammunition.
[71 FR 53045, Sept. 8, 2006, as amended at 71 FR 58537, Oct. 4, 2006]
Sec. 207.104 General procedures.
In developing an acquisition plan, agency officials shall take into
account the requirement for scheduling and conducting a Peer Review in
accordance with 201.170.
[74 FR 37626, July 29, 2009]
Sec. 207.105 Contents of written acquisition plans.
In addition to the requirements of FAR 7.105, planners shall follow
the procedures at PGI 207.105.
[71 FR 53045, Sept. 8, 2006]
Sec. 207.106 Additional requirements for major systems.
(b)(1)(A) The contracting officer is prohibited by 10 U.S.C.
2305(d)(4)(A) from requiring offers for development or production of
major systems that
[[Page 44]]
would enable the Government to use technical data to competitively
reprocure identical items or components of the system if the item or
component were developed exclusively at private expense, unless the
contracting officer determines that--
(1) The original supplier of the item or component will be unable to
satisfy program schedule or delivery requirements;
(2) Proposals by the original supplier of the item or component to
meet mobilization requirements are insufficient to meet the agency's
mobilization needs; or
(3) The Government is otherwise entitled to unlimited rights in
technical data.
(B) If the contracting officer makes a determination, under
paragraphs (b)(1)(A) (1) and (2) of this section, for a competitive
solicitation, 10 U.S.C. 2305(d)(4)(B) requires that the evaluation of
items developed at private expense be based on an analysis of the total
value, in terms of innovative design, life-cycle costs, and other
pertinent factors, of incorporating such items in the system.
(S-70)(1) In accordance with Section 802(a) of the National Defense
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) and DoD policy
requirements, acquisition plans for major weapon systems and subsystems
of major weapon systems shall--
(i) Assess the long-term technical data and computer software needs
of those systems and subsystems; and
(ii) Establish acquisition strategies that provide for the technical
data and computer software deliverables and associated license rights
needed to sustain those systems and subsystems over their life cycle.
The strategy may include--
(A) The development of maintenance capabilities within DoD; or
(B) Competition for contracts for sustainment of the systems or
subsystems.
(2) Assessments and corresponding acquisition strategies developed
under this section shall--
(i) Be developed before issuance of a solicitation for the weapon
system or subsystem;
(ii) Address the merits of including a priced contract option for
the future delivery of technical data and computer software, and
associated license rights, that were not acquired upon initial contract
award;
(iii) Address the potential for changes in the sustainment plan over
the life cycle of the weapon system or subsystem; and
(iv) Apply to weapon systems and subsystems that are to be supported
by performance-based logistics arrangements as well as to weapon systems
and subsystems that are to be supported by other sustainment approaches.
(S-71) See 209.570 for policy applicable to acquisition strategies
that consider the use of lead system integrators.
(S-72)(1) In accordance with section 202 of the Weapon Systems
Acquisition Reform Act of 2009 (Pub. L. 111-23), acquisition plans for
major defense acquisition programs as defined in 10 U.S.C. 2430, shall
include measures that--
(i) Ensure competition, or the option of competition, at both the
prime contract level and subcontract level (at such tier or tiers as are
appropriate) throughout the program life cycle as a means to improve
contractor performance; and
(ii) Document the rationale for the selection of the appropriate
subcontract tier or tiers under paragraph (S-72)(1)(i) of this section,
and the measures which will be employed to ensure competition, or the
option of competition.
(2) Measures to ensure competition, or the option of competition,
may include, but are not limited to, cost-effective measures intended to
achieve the following:
(i) Competitive prototyping.
(ii) Dual-sourcing.
(iii) Unbundling of contracts.
(iv) Funding of next-generation prototype systems or subsystems.
(v) Use of modular, open architectures to enable competition for
upgrades.
(vi) Use of build-to-print approaches to enable production through
multiple sources.
(vii) Acquisition of complete technical data packages.
[[Page 45]]
(viii) Periodic competitions for subsystem upgrades.
(ix) Licensing of additional suppliers.
(x) Periodic system or program reviews to address long-term
competitive effects of program decisions.
(3) In order to ensure fair and objective ``make-or-buy'' decisions
by prime contractors, acquisition strategies and resultant solicitations
and contracts shall--
(i) Require prime contractors to give full and fair consideration to
qualified sources other than the prime contractor for the development or
construction of major subsystems and components of major weapon systems;
(ii) Provide for Government surveillance of the process by which
prime contractors consider such sources and determine whether to conduct
such development or construction in-house or through a subcontract; and
(iii) Provide for the assessment of the extent to which the prime
contractor has given full and fair consideration to qualified sources in
sourcing decisions as a part of past performance evaluations.
(4) Whenever a source-of-repair decision results in a plan to award
a contract for the performance of maintenance and sustainment services
on a major weapon system, to the maximum extent practicable and
consistent with statutory requirements, the acquisition plan shall
prescribe that award will be made on a competitive basis after giving
full consideration to all sources (including sources that partner or
subcontract with public or private sector repair activities).
(S-73) In accordance with section 815 of the National Defense
Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) and DoD policy
requirements, acquisition plans for major weapons systems shall include
a plan for the preservation and storage of special tooling associated
with the production of hardware for major defense acquisition programs
through the end of the service life of the related weapons system. The
plan shall include the identification of any contract clauses,
facilities, and funding required for the preservation and storage of
such tooling. The Undersecretary of Defense for Acquisition, Technology,
and Logistics (USD (AT&L)) may waive this requirement if USD (AT&L)
determines that it is in the best interest of DoD.
[56 FR 36305, July 31, 1991, as amended at 72 FR 51188, Sept. 6, 2007;
73 FR 1824, Jan. 10, 2008; 74 FR 68701, Dec. 29, 2009; 75 FR 8273, Feb.
24, 2010; 76 FR 11363, Mar. 2, 2011]
Sec. 207.170 Consolidation of contract requirements.
Sec. 207.170-1 Scope.
This section implements 10 U.S.C. 2382.
[69 FR 55987, Sept. 17, 2004]
Sec. 207.170-2 Definitions.
As used in this section--
Consolidation of contract requirements means the use of a
solicitation to obtain offers for a single contract or a multiple award
contract to satisfy two or more requirements of a department, agency, or
activity for supplies or services that previously have been provided to,
or performed for, that department, agency, or activity under two or more
separate contracts.
Multiple-award contract means--
(1) A multiple-award schedule contract issued by the General
Services Administration or Department of Veterans Affairs as described
in FAR subpart 8.4;
(2) A multiple award task-order or delivery-order contract issued in
accordance with FAR subpart 16.5; or
(3) Any other indefinite-delivery, indefinite-quantity contract that
an agency enters into with two or more sources for the same line item
under the same solicitation.
[71 FR 14106, Mar. 21, 2006, as amended at 76 FR 23505, Apr. 27, 2011]
Sec. 207.170-3 Policy and procedures.
(a) Agencies shall not consolidate contract requirements with an
estimated total value exceeding $6 million unless the acquisition
strategy includes--
(1) The results of market research;
(2) Identification of any alternative contracting approaches that
would involve a lesser degree of consolidation; and
[[Page 46]]
(3) A determination by the senior procurement executive that the
consolidation is necessary and justified.
(i) Market research may indicate that consolidation of contract
requirements is necessary and justified if the benefits of the
acquisition strategy substantially exceed the benefits of each of the
possible alternative contracting approaches. Benefits may include costs
and, regardless of whether quantifiable in dollar amounts--
(A) Quality;
(B) Acquisition cycle;
(C) Terms and conditions; and
(D) Any other benefit.
(ii) Savings in administrative or personnel costs alone do not
constitute a sufficient justification for a consolidation of contract
requirements unless the total amount of the cost savings is expected to
be substantial in relation to the total cost of the procurement.
(b) Include the determination made in accordance with paragraph
(a)(3) of this section in the contract file.
[69 FR 55987, Sept. 17, 2004, as amended at 71 FR 14106, Mar. 21, 2006;
71 FR 75892, Dec. 19, 2006; 75 FR 45073, Aug. 2, 2010]
Sec. 207.171 Component breakout.
Sec. 207.171-1 Scope.
(a) This section provides policy for breaking out components of end
items for future acquisitions so that the Government can purchase the
components directly from the manufacturer or supplier and furnish them
to the end item manufacturer as Government-furnished material.
(b) This section does not apply to--
(1) The initial decisions on Government-furnished equipment or
contractor-furnished equipment that are made at the inception of an
acquisition program; or
(2) Breakout of parts for replenishment (see appendix E).
[71 FR 14102, Mar. 21, 2006]
Sec. 207.171-2 Definition.
Component, as used in this section, includes subsystems, assemblies,
subassemblies, and other major elements of an end item; it does not
include elements of relatively small annual acquisition value.
[71 FR 14102, Mar. 21, 2006]
Sec. 207.171-3 Policy.
DoD policy is to break out components of weapons systems or other
major end items under certain circumstances.
(a) When it is anticipated that a prime contract will be awarded
without adequate price competition, and the prime contractor is expected
to acquire any component without adequate price competition, the agency
shall break out that component if--
(1) Substantial net cost savings probably will be achieved; and
(2) Breakout action will not jeopardize the quality, reliability,
performance, or timely delivery of the end item.
(b) Even when either or both the prime contract and the component
will be acquired with adequate price competition, the agency shall
consider breakout of the component if substantial net cost savings will
result from--
(1) Greater quantity acquisitions; or
(2) Such factors as improved logistics support (through reduction in
varieties of spare parts) and economies in operations and training
(through standardization of design).
(c) Breakout normally is not justified for a component that is not
expected to exceed $1 million for the current year's requirement.
[71 FR 14102, Mar. 21, 2006]
Sec. 207.171-4 Procedures.
Agencies shall follow the procedures at PGI 207.171-4 for component
breakout.
[71 FR 14102, Mar. 21, 2006]
Sec. 207.172 Human research.
Any DoD component sponsoring research involving human subjects--
(a) Is responsible for oversight of compliance with 32 CFR Part 219,
Protection of Human Subjects; and
(b) Must have a Human Research Protection Official, as defined in
the clause at 252.235-7004, Protection of Human Subjects, and identified
in the DoD component's Human Research
[[Page 47]]
Protection Management Plan. This official is responsible for the
oversight and execution of the requirements of the clause at 252.235-
7004 and shall be identified in acquisition planning.
[74 FR 37648, July 29, 2009]
Subpart 207.4_Equipment Lease or Purchase
Sec. 207.401 Acquisition considerations.
If the equipment will be leased for more than 60 days, the requiring
activity must prepare and provide the contracting officer with the
justification supporting the decision to lease or purchase.
Sec. 207.470 Statutory requirements.
(a) Requirement for authorization of certain contracts relating to
vessels, aircraft, and combat vehicles. The contracting officer shall
not enter into any contract for the lease or charter of any vessel,
aircraft, or combat vehicle, or any contract for services that would
require the use of the contractor's vessel, aircraft, or combat vehicle,
unless the Secretary of the military department concerned has satisfied
the requirements of 10 U.S.C. 2401, when--
(1) The contract will be a long-term lease or charter as defined in
10 U.S.C. 2401(d)(1); or
(2) The terms of the contract provide for a substantial termination
liability as defined in 10 U.S.C. 2401(d)(2). Also see PGI 207.470.
(b) Limitation on contracts with terms of 18 months or more. As
required by 10 U.S.C. 2401a, the contracting officer shall not enter
into any contract for any vessel, aircraft, or vehicle, through a lease,
charter, or similar agreement with a term of 18 months or more, or
extend or renew any such contract for a term of 18 months or more,
unless the head of the contracting activity has--
(1) Considered all costs of such a contract (including estimated
termination liability); and
(2) Determined in writing that the contract is in the best interest
of the Government.
(c) Leasing of commercial vehicles and associated equipment. Except
as provided in paragraphs (a) and (b) of this section, the contracting
officer may use leasing in the acquisition of commercial vehicles and
associated equipment whenever the contracting officer determines that
leasing of such vehicles is practicable and efficient (10 US.C. 2401a).
[61 FR 16879, Apr. 18, 1996, as amended at 61 FR 50451, Sept. 26, 1996;
74 FR 34266, July 15, 2009]
Sec. 207.471 Funding requirements.
(a) Fund leases in accordance with DoD Financial Management
Regulation (FMR) 7000.14-R, Volume 2A, Chapter 1.
(b) DoD leases are either capital leases or operating leases. See
FMR 7000.14-R, Volume 4, Chapter 6, section 060206.
(c) Use procurement funds for capital leases, as these are
essentially installment purchases of property.
[64 FR 31732, June 14, 1999, as amended at 66 FR 55121, Nov. 1, 2001; 71
FR 53045, Sept. 8, 2006; 76 FR 76319, Dec. 7, 2011]
Subpart 207.5_Inherently Governmental Functions
Source: 70 FR 14573, Mar. 23, 2005, unless otherwise noted.
Sec. 207.500 Scope of subpart.
This subpart also implements 10 U.S.C. 2383.
Sec. 207.503 Policy.
(e) The written determination required by FAR 7.503(e), that none of
the functions to be performed by contract are inherently governmental--
(i) Shall be prepared using DoD Instruction 1100.22, Guidance for
Determining Workforce Mix; and
(ii) Shall include a determination that none of the functions to be
performed are exempt from private sector performance, as addressed in
DoD Instruction 1100.22.
(S-70) Contracts for acquisition functions.
(1) In accordance with 10 U.S.C. 2383, the head of an agency may
enter into a contract for performance of the acquisition functions
closely associated with inherently governmental functions that are
listed at FAR 7.503(d) only if--
[[Page 48]]
(i) The contracting officer determines that appropriate military or
civilian DoD personnel--
(A) Cannot reasonably be made available to perform the functions;
(B) Will oversee contractor performance of the contract; and
(C) Will perform all inherently governmental functions associated
with the functions to be performed under the contract; and
(ii) The contracting officer ensures that the agency addresses any
potential organizational conflict of interest of the contractor in the
performance of the functions under the contract (see FAR Subpart 9.5).
(2) See related information at PGI 207.503(S-70).
[70 FR 14573, Mar. 23, 2005, as amended at 71 FR 14101, Mar. 21, 2006;
73 FR 1826, Jan. 10, 2008]
Subpart 207.70_Buy-to-Budget_Additional Quantities of End Items
Source: 68 FR 43331, July 22, 2003, unless otherwise noted.
Sec. 207.7001 Definition.
End item, as used in this subpart, means a production product
assembled, completed, and ready for issue or deployment.
Sec. 207.7002 Authority to acquire additional quantities of end items.
10 U.S.C. 2308 authorizes DoD to use funds available for the
acquisition of an end item to acquire a higher quantity of the end item
than the quantity specified in a law providing for the funding of that
acquisition, if the head of an agency determines that--
(a) The agency has an established requirement for the end item that
is expected to remain substantially unchanged throughout the period of
the acquisition;
(b) It is possible to acquire the higher quantity of the end item
without additional funding because of production efficiencies or other
cost reductions;
(c) The amount of funds used for the acquisition of the higher
quantity of the end item will not exceed the amount provided under that
law for the acquisition of the end item; and
(d) The amount provided under that law for the acquisition of the
end item is sufficient to ensure that each unit of the end item acquired
within the higher quantity is fully funded as a complete end item.
Sec. 207.7003 Limitation.
For noncompetitive acquisitions, the acquisition of additional
quantities is limited to not more than 10 percent of the quantity
approved in the justification and approval prepared in accordance with
FAR part 6 for the acquisition of the end item.
PART 208_REQUIRED SOURCES OF SUPPLIES AND SERVICES
Sec.
Sec. 208.002 Priorities for use of Government supply sources.
Subpart 208.4_Federal Supply Schedules
Sec. 208.404 Use of Federal Supply Schedules.
Sec. 208.406 Ordering activity responsibilities.
Sec. 208.406-1 Order placement.
Subpart 208.6_Acquisition From Federal Prison Industries, Inc.
Sec. 208.602-70 Acquisition of items for which FPI has a significant
market share.
Subpart 208.7_Acquisition From Nonprofit Agencies Employing People Who
Are Blind or Severely Disabled
Sec. 208.705 Procedures.
Subpart 208.70_Coordinated Acquisition
Sec. 208.7000 Scope of subpart.
Sec. 208.7001 Definitions.
Sec. 208.7002 Assignment authority.
Sec. 208.7002-1 Acquiring department responsibilities.
Sec. 208.7002-2 Requiring department responsibilities.
Sec. 208.7003 Applicability.
Sec. 208.7003-1 Assignments under integrated materiel management (IMM).
Sec. 208.7003-2 Assignments under coordinated acquisition.
Sec. 208.7004 Procedures.
Sec. 208.7005 Military interdepartmental purchase requests.
[[Page 49]]
Sec. 208.7006 Coordinated acquisition assignments.
Subpart 208.71_Acquisition for National Aeronautics and Space
Administration (NASA)
Sec. 208.7100 Authorization.
Sec. 208.7101 Policy.
Sec. 208.7102 Procedures.
Subpart 208.72 [Reserved]
Sec. 208.7201 Definitions.
Sec. 208.7202 General.
Sec. 208.7203 Authority.
Sec. 208.7204 Procedures.
Subpart 208.73_Use of Government-Owned Precious Metals
Sec. 208.7301 Definitions.
Sec. 208.7302 Policy.
Sec. 208.7303 Procedures.
Sec. 208.7304 Refined precious metals.
Sec. 208.7305 Contract clause.
Subpart 208.74_Enterprise Software Agreements
Sec. 208.7400 Scope of subpart.
Sec. 208.7401 Definitions.
Sec. 208.7402 General.
Sec. 208.7403 Acquisition procedures.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36306, July 31, 1991, unless otherwise noted.
Sec. 208.002 Priorities for use of Government supply sources.
(a)(1)(v) See Subpart 208.70, Coordinated Acquisition, and Subpart
208.74, Enterprise Software Agreements.
[71 FR 39004, July 11, 2006]
Subpart 208.4_Federal Supply Schedules
Sec. 208.404 Use of Federal Supply Schedules.
(a)(i) If only one offer is received in response to an order
exceeding the simplified acquisition threshold that is placed on a
competitive basis, the procedures at 215.371 apply.
(ii) Departments and agencies shall comply with the review,
approval, and reporting requirements established in accordance with
subpart 217.78 when placing orders for supplies or services in amounts
exceeding the simplified acquisition threshold.
(iii) When a schedule lists both foreign and domestic items that
will meet the needs of the requiring activity, the ordering office must
apply the procedures of part 225 and FAR part 25, Foreign Acquisition.
When purchase of an item of foreign origin is specifically required, the
requiring activity must furnish the ordering office sufficient
information to permit the determinations required by part 225 and FAR
part 25 to be made.
(iv) Use the provisions at 252.215-7007, Notice of Intent to
Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.408(3)
and 215.408(4), respectively.
[77 FR 39137, June 29, 2012, as amended at 78 FR 38235, June 26, 2013]
Sec. Sec. 208.406 Ordering activity responsibilities.
Sec. Sec. 208.406-1 Order placement.
Follow the procedures at PGI 208.406-1 when ordering from schedules.
[71 FR 14107, Mar. 21, 2006]
Subpart 208.6_Acquisition From Federal Prison Industries, Inc.
Sec. 208.602-70 Acquisition of items for which FPI has a significant
market share.
(a) Scope. This subsection implements Section 827 of the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181).
(b) Definition. Item for which FPI has a significant market share,
as used in this subsection, means an item for which FPI's share of the
DoD market for the federal supply class including that item is greater
than 5 percent, as determined by DoD in consultation with the Office of
Federal Procurement Policy. A list of the federal supply classes of
items for which FPI has a significant market share is maintained at.
http://www.acq.osd.mil/dpap/cpic/cp/specific--policy--
areas.html#federal--
prison.
(c) Policy. (1) When acquiring an item for which FPI has a
significant market share--
(i) Acquire the item using--
[[Page 50]]
(A) Competitive procedures (e.g., the procedures in FAR 6.102, the
set-aside procedures in FAR Subpart 19.5, or competition conducted in
accordance with FAR Part 13); or
(B) The fair opportunity procedures in FAR 16.505, if placing an
order under a multiple award delivery-order contract; and
(ii) Include FPI in the solicitation process, consider a timely
offer from FPI, and make an award in accordance with the policy at FAR
8.602(a)(4)(ii) through (v).
(2) When acquiring an item for which FPI does not have a significant
market share, acquire the item in accordance with the policy at FAR
8.602.
[73 FR 46817, Aug. 12, 2008]
Subpart 208.7_Acquisition From Nonprofit Agencies Employing People Who
Are Blind or Severely Disabled
Sec. 208.705 Procedures.
Follow the procedures at PGI 208.705 when placing orders with
central nonprofit agencies.
[71 FR 39004, July 11, 2006]
Subpart 208.70_Coordinated Acquisition
Sec. 208.7000 Scope of subpart.
This subpart prescribes policy and procedures for acquisition of
items for which contracting responsibility is assigned to one or more of
the departments/agencies or the General Services Administration.
Contracting responsibility is assigned through--
(a) The Coordinated Acquisition Program (commodity assignments are
listed in PGI 208.7006); or
(b) The Integrated Materiel Management Program (assignments are in
DoD 4140.26-M, Defense Integrated Materiel Management Manual for
Consumable Items).
[56 FR 36306, July 31, 1991, as amended at 67 FR 77936, Dec. 20, 2002;
71 FR 39004, July 11, 2006]
Sec. 208.7001 Definitions.
For purposes of this subpart--
Acquiring department means the department, agency, or General
Services Administration which has contracting responsibility under the
Coordinated Acquisition Program.
Integrated materiel management means assignment of acquisition
management responsibility to one department, agency, or the General
Services Administration for all of DoD's requirements for the assigned
item. Acquisition management normally includes computing requirements,
funding, budgeting, storing, issuing, cataloging, standardizing, and
contracting functions.
Requiring department means the department or agency which has the
requirement for an item.
Sec. 208.7002 Assignment authority.
(a) Under the DoD Coordinated Acquisition Program, contracting
responsibility for certain commodities is assigned to a single
department, agency, or the General Services Administration (GSA).
Commodity assignments are made--
(1) To the departments and agencies, by the Deputy Under Secretary
of Defense (Logistics);
(2) To GSA, through agreement with GSA, by the Deputy Under
Secretary of Defense (Logistics);
(3) Outside the contiguous United States, by the Unified Commanders;
and
(4) For acquisitions to be made in the contiguous United States for
commodities not assigned under paragraphs (a)(1), (2), or (3) of this
section, by agreement of agency heads (10 U.S.C. 2311).
(i) Agreement may be on either a one-time or a continuing basis. The
submission of a military interdepartmental purchase request (MIPR) by a
requiring activity and its acceptance by the contracting activity of
another department, even though based on an oral communication,
constitutes a one-time agreement.
(ii) Consider repetitive delegated acquisition responsibilities for
coordinated acquisition assignment. If not considered suitable for
coordinated acquisition assignment, formalize continuing agreements and
distribute them to all activities concerned.
[[Page 51]]
(b) Under the Integrated Materiel Management Program, assignments
are made by the Deputy Under Secretary of Defense (Logistics)--
(1) To the departments and agencies; and
(2) To GSA, through agreement with GSA.
[56 FR 36306, July 31, 1991, as amended at 64 FR 51075, Sept. 21, 1999;
70 FR 35544, June 21, 2005]
Sec. 208.7002-1 Acquiring department responsibilities.
See PGI 208.7002-1 for the acquiring department's responsibilities.
[71 FR 39004, July 11, 2006]
Sec. 208.7002-2 Requiring department responsibilities.
See PGI 208.7002-2 for the requiring department's responsibilities.
[71 FR 39004, July 11, 2006]
Sec. 208.7003 Applicability.
Sec. 208.7003-1 Assignments under integrated materiel management (IMM).
(a) Acquire all items assigned for IMM from the IMM manager except--
(1) Items purchased under circumstances of unusual and compelling
urgency as defined in FAR 6.302-2. After such a purchase is made, the
requiring activity must send one copy of the contract and a statement of
the emergency to the IMM manager;
(2) Items for which the IMM manager assigns a supply system code for
local purchase or otherwise grants authority to purchase locally; or
(3) When purchase by the requiring activity is in the best interest
of the Government in terms of the combination of quality, timeliness,
and cost that best meets the requirement. This exception does not apply
to items--
(i) Critical to the safe operation of a weapon system;
(ii) With special security characteristics; or
(iii) Which are dangerous (e.g., explosives, munitions).
(b) Follow the procedures at PGI 208.7003-1(b) when an item assigned
for IMM is to be acquired by the requiring department in accordance with
paragraph (a)(3) of this subsection.
[60 FR 61593, Nov. 30, 1995, as amended at 64 FR 51075, Sept. 21, 1999;
64 FR 61031, Nov. 9, 1999; 71 FR 39004, July 11, 2006]
Sec. 208.7003-2 Assignments under coordinated acquisition.
Requiring departments must submit to the acquiring department all
contracting requirements for items assigned for coordinated acquisition,
except--
(a) Items obtained through the sources in FAR 8.002(a)(1) (i)
through (vii);
(b) Items obtained under 208.7003-1(a);
(c) Requirements not in excess of the simplified acquisition
threshold in FAR part 2, when contracting by the requiring department is
in the best interest of the Government;
(d) In an emergency. When an emergency purchase is made, the
requiring department must send one copy of the contract and a statement
of the emergency to the contracting activity of the acquiring
department;
(e) Requirements for which the acquiring department's contracting
activity delegates contracting authority to the requiring department;
(f) Items in a research and development stage (as described in FAR
part 35). Under this exception, the military departments may contract
for research and development requirements, including quantities for
testing purposes and items undergoing in-service evaluation (not yet in
actual production, but beyond prototype). Generally, this exception
applies only when research and development funds are used.
(g) Items peculiar to nuclear ordnance material where design
characteristics or test-inspection requirements are controlled by the
Department of Energy (DoE) or by DoD to ensure reliability of nuclear
weapons.
(1) This exception applies to all items designed for and peculiar to
nuclear ordnance regardless of agency control, or to any item which
requires test or inspection conducted or controlled by DoE or DoD.
(2) This exception does not cover items used for both nuclear
ordnance and other purposes if the items are not
[[Page 52]]
subject to the special testing procedures.
(h) Items to be acquired under FAR 6.302-6 (national security
requires limitation of sources);
(i) Items to be acquired under FAR 6.302-1 (supplies available only
from the original source for follow-on contract);
(j) Items directly related to a major system and which are design
controlled by and acquired from either the system manufacturer or a
manufacturer of a major subsystem;
(k) Items subject to rapid design changes, or to continuous redesign
or modification during the production and/or operational use phases,
which require continual contact between industry and the requiring
department to ensure that the item meets the requirements:
(1) This exception permits the requiring department to contract for
items of highly unstable design. For use of this exception, it must be
clearly impractical, both technically and contractually, to refer the
acquisition to the acquiring department. Anticipation that contracting
by negotiation will be appropriate, or that a number of design changes
may occur during contract performance is not in itself sufficient reason
for using this exception.
(2) This exception also applies to items requiring compatibility
testing, provided such testing requires continual contact between
industry and the requiring department;
(l) Containers acquired only with items for which they are designed;
(m) One-time buy of a noncataloged item.
(1) This exception permits the requiring departments to contract for
a nonrecurring requirement for a noncataloged item. This exception could
cover a part or component for a prototype which may be stock numbered at
a later date.
(2) This exception does not permit acquisitions of recurring
requirements for an item, based solely on the fact that the item is not
stock numbered, nor may it be used to acquire items which have only
slightly different characteristics than previously cataloged items.
[56 FR 36306, July 31, 1991, as amended at 60 FR 61593, Nov. 30, 1995;
64 FR 51075, Sept. 21, 1999; 71 FR 69489, Dec. 1, 2006]
Sec. 208.7004 Procedures.
Follow the procedures at PGI 208.7004 for processing coordinated
acquisition requirements.
[71 FR 39005, July 11, 2006]
Sec. 208.7005 Military interdepartmental purchase requests.
Follow the procedures at--
(a) PGI 253.208-1 when using DD Form 448, Military Interdepartmental
Purchase Request; and
(b) PGI 253.208-2 when using DD Form 448-2, Acceptance of MIPR.
[71 FR 39005, July 11, 2006]
Sec. 208.7006 Coordinated acquisition assignments.
See PGI 208.7006 for coordinated acquisition assignments.
[71 FR 39005, July 11, 2006]
Subpart 208.71_Acquisition for National Aeronautics and Space
Administration (NASA)
Sec. 208.7100 Authorization.
NASA is authorized by Public Law 85-568 to use the acquisition
services, personnel, equipment, and facilities of DoD departments and
agencies with their consent, with or without reimbursement, and on a
similar basis to cooperate with the departments/agencies in the use of
acquisition services, equipment, and facilities.
Sec. 208.7101 Policy.
Departments and agencies shall cooperate fully with NASA in making
acquisition services, equipment, personnel, and facilities available on
the basis of mutual agreement.
[71 FR 39005, July 11, 2006]
Sec. 208.7102 Procedures.
Follow the procedures at PGI 208.7102 when contracting or performing
services for NASA.
[71 FR 39005, July 11, 2006]
[[Page 53]]
Subpart 208.72 [Reserved]
Subpart 208.73_Use of Government-Owned Precious Metals
Sec. 208.7301 Definitions.
As used in this subpart--
Defense Supply Center, Philadelphia (DSCP) means the Defense
Logistics Agency field activity located at 700 Robbins Avenue,
Philadelphia, PA 19111-5096, which is the assigned commodity integrated
material manager for refined precious metals and is responsible for the
storage and issue of such material.
Refined precious metal means recovered silver, gold, platinum,
palladium, iridium, rhodium, or ruthenium, in bullion, granulation or
sponge form, which has been purified to at least .999 percentage of
fineness.
[56 FR 36306, July 31, 1991, as amended at 65 FR 14398, Mar. 16, 2000;
65 FR 52951, Aug. 31, 2000; 65 FR 58607 Sept. 29, 2000; 71 FR 39005,
July 11, 2006]
Sec. 208.7302 Policy.
DoD policy is for maximum participation in the Precious Metals
Recovery Program. DoD components shall furnish recovered precious metals
contained in the DSCP inventory to production contractors rather than
use contractor-furnished precious metals whenever the contracting
officer determines it to be in the Government's best interest.
[56 FR 36306, July 31, 1991, as amended at 65 FR 52951, Aug. 31, 2000;
71 FR 39005, July 11, 2006]
Sec. 208.7303 Procedures.
Follow the procedures at PGI 208.7303 for use of the Precious Metals
Recovery Program.
[71 FR 39005, July 11, 2006]
Sec. 208.7304 Refined precious metals.
See PGI 208.7304 for a list of refined precious metals managed by
DSCP.
[71 FR 39005, July 11, 2006]
Sec. 208.7305 Contract clause.
(a) Use the clause at 252.208-7000, Intent to Furnish Precious
Metals as Government-Furnished Material, in all solicitations and
contracts except--
(1) When the contracting officer has determined that the required
precious metals are not available from DSCP;
(2) When the contracting officer knows that the items being acquired
do not require precious metals in their manufacture; or
(3) For acquisitions at or below the simplified acquisition
threshold.
(b) To make the determination in paragraph (a)(1) of this section,
the contracting officer shall consult with the end item inventory
manager and comply with the procedures in Chapter 11, DoD 4160.21-M,
Defense Materiel Disposition Manual.
[56 FR 36306, July 31, 1991, as amended at 64 FR 2596, Jan. 15, 1999; 65
FR 14398, Mar. 16, 2000; 65 FR 52952, Aug. 31, 2000]
Subpart 208.74_Enterprise Software Agreements
Source: 67 FR 65511, Oct. 25, 2002, unless otherwise noted.
Sec. 208.7400 Scope of subpart.
This subpart prescribes policy and procedures for acquisition of
commercial software and software maintenance, including software and
software maintenance that is acquired--
(a) As part of a system or system upgrade, where practicable;
(b) Under a service contract;
(c) Under a contract or agreement administered by another agency
(e.g., under an interagency agreement);
(d) Under a Federal Supply Schedule contract or blanket purchase
agreement established in accordance with FAR 8.405; or
(e) By a contractor that is authorized to order From a Government
supply source pursuant to FAR 51.101.
[67 FR 65511, Oct. 25, 2002, as amended at 71 FR 62559, Oct. 26, 2006;
78 FR 38235, June 26, 2013]
Sec. 208.7401 Definitions.
As used in this subpart--
Enterprise software agreement means an agreement or a contract that
is used to acquire designated commercial software or related services
such as software maintenance.
[[Page 54]]
Enterprise Software Initiative means an initiative led by the DoD
Chief Information Officer to develop processes for DoD-wide software
asset management.
Software maintenance means services normally provided by a software
company as standard services at established catalog or market prices,
e.g., the right to receive and use upgraded versions of software,
updates, and revisions.
[67 FR 65511, Oct. 25, 2002, as amended at 71 FR 39005, July 11, 2006]
Sec. 208.7402 General.
Departments and agencies shall fulfill requirements for commercial
software and related services, such as software maintenance, in
accordance with the DoD Enterprise Software Initiative (ESI) (see Web
site at http://www.don-imit.navy.mil/esi). ESI promotes the use of
enterprise software agreements (ESAs) with contractors that allow DoD to
obtain favorable terms and pricing for commercial software and related
services. ESI does not dictate the products or services to be acquired.
Sec. 208.7403 Acquisition procedures.
Follow the procedures at PGI 208.7403 when acquiring commercial
software and related services.
[71 FR 39005, July 11, 2006]
PART 209_CONTRACTOR QUALIFICATIONS
Subpart 209.1_Responsible Prospective Contractors
Sec.
Sec. 209.101 Definitions.
Sec. 209.104 Standards.
Sec. 209.104-1 General standards.
Sec. 209.104-4 Subcontractor responsibility.
Sec. 209.104-70 Solicitation provisions.
Sec. 209.105 Procedures.
Sec. 209.105-1 Obtaining information.
Sec. 209.105-2 Determinations and documentation.
Sec. 209.105-2-70 Inclusion of determination of contractor fault in
Federal Awardee Performance and Integrity Information System
(FAPIIS).
Sec. 209.106 Preaward surveys.
Subpart 209.2_Qualifications Requirements
Sec. 209.202 Policy.
Sec. 209.270 Aviation critical safety items.
Sec. 209.270-1 Scope.
Sec. 209.270-2 Definitions.
Sec. 209.270-3 Policy.
Sec. 209.270-4 Procedures.
Sec. 209.270-5 Contract clause.
Subpart 209.3 [Reserved]
Subpart 209.4_Debarment, Suspension, and Ineligibility
Sec. 209.402 Policy.
Sec. 209.403 Definitions.
Sec. 209.405 Effect of listing.
Sec. 209.405-2 Restrictions on subcontracting.
Sec. 209.406 Debarment.
Sec. 209.406-1 General.
Sec. 209.406-2 Causes for debarment.
Sec. 209.406-3 Procedures.
Sec. 209.407 Suspension.
Sec. 209.407-3 Procedures.
Sec. 209.409 Solicitation provision and contract clause.
Sec. 209.470 Reserve Officer Training Corps and military recruiting on
campus.
Sec. 209.470-1 Definition.
Sec. 209.470-2 Policy.
Sec. 209.470-3 Procedures.
Sec. 209.470-4 Contract clause.
Sec. 209.471 Congressional Medal of Honor.
Subpart 209.5_Organizational and Consultant Conflicts of Interest
Sec. 209.505 General rules.
Sec. 209.505-4 Obtaining access to proprietary information.
Sec. 209.570 Limitations on contractors acting as lead system
integrators.
Sec. 209.570-1 Definitions.
Sec. 209.570-2 Policy.
Sec. 209.570-3 Procedures.
Sec. 209.570-4 Solicitation provision and contract clause.
Sec. 209.571 Organizational conflicts of interest in major defense
acquisition programs.
Sec. 209.571-0 Scope of subpart.
Sec. 209.571-1 Definitions.
Sec. 209.571-2 Applicability.
Sec. 209.571-4 Mitigation.
Sec. 209.571-5 Lead system integrators.
Sec. 209.571-6 Identification of organizational conflicts of interest.
Sec. 209.571-7 Systems engineering and technical assistance contracts.
Sec. 209.571-8 Solicitation provision and contract clause.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 56 FR 36313, July 31, 1991, unless otherwise noted.
[[Page 55]]
Subpart 209.1_Responsible Prospective Contractors
Sec. 209.101 Definitions.
``Entity controlled by a foreign government,'' ``foreign
government,'' and ``proscribed information,'' are defined in the
provision at 252.209-7002, Disclosure of Ownership or Control by a
Foreign Government.
[59 FR 51132, Oct. 7, 1994]
Sec. 209.104 Standards.
Sec. 209.104-1 General standards.
(e) For cost-reimbursement or incentive type contracts, or contracts
which provide for progress payments based on costs or on a percentage or
stage of completion, the prospective contractor's accounting system and
related internal controls must provide reasonable assurance that--
(i) Applicable laws and regulations are complied with;
(ii) The accounting system and cost data are reliable;
(iii) Risk of misallocations and mischarges are minimized; and
(iv) Contract allocations and charges are consistent with invoice
procedures.
(g)(i) Ownership or control by the government of a terrorist
country. (A) Under 10 U.S.C. 2327(b), a contracting officer shall not
award a contract of $150,000 or more to a firm or to a subsidiary of a
firm when a foreign government--
(1) Either directly or indirectly, has a significant interest--
(i) In the firm; or
(ii) In the subsidiary or the firm that owns the subsidiary; and
(2) Has been determined by the Secretary of State under 50 U.S.C.
App. 2405(j)(1)(A) to be a government of a country that has repeatedly
provided support for acts of international terrorism.
(B) The Secretary of Defense may waive the prohibition in paragraph
(g)(i)(A) of this subsection in accordance with 10 U.S.C. 2327(c). This
waiver authority may not be delegated.
(C) Forward any information indicating that a firm or a subsidiary
of a firm may be owned or controlled by the government of a terrorist
country, through agency channels, to: Deputy Director, Defense
Procurement (Contract Policy and International Contracting,
OUSD(AT&L)DPAP(CPIC)), 3060 Defense Pentagon, Washington, DC 20301-3060.
(ii) Ownership or control by a foreign government when access to
proscribed information is required to perform the contract. (A) Under 10
U.S.C. 2536(a), no DoD contract under a national security program may be
awarded to an entity controlled by a foreign government if that entity
requires access to proscribed information to perform the contract.
(B) Whenever the contracting officer has a question about
application of the provision at 252.209-7002, the contracting officer
may seek advice from the Security Directorate, Office of the Deputy
Under Secretary of Defense, Human Intelligence, Counterintelligence, and
Security.
(C) In accordance with 10 U.S.C. 2536(b)(1)(A), the Secretary of
Defense may waive the prohibition in paragraph (g)(ii)(A) of this
subsection upon determining that the waiver is essential to the national
security interests of the United States. The Secretary has delegated
authority to grant this waiver to the Undersecretary of Defense for
Intelligence. Waiver requests, prepared by the requiring activity in
coordination with the contracting officer, shall be processed through
the Director of Defense Procurement and Acquisition Policy, Office of
the Under Secretary of Defense (Acquisition, Technology, and Logistics),
and shall include a proposed national interest determination. The
proposed national interest determination, prepared by the requiring
activity in coordination with the contracting officer, shall include:
(1) Identification of the proposed awardee, with a synopsis of its
foreign ownership (include solicitation and other reference numbers to
identify the action);
(2) General description of the acquisition and performance
requirements;
(3) Identification of the national security interests involved and
the ways award of the contract helps advance those interests;
[[Page 56]]
(4) The availability of another entity with the capacity, capability
and technical expertise to satisfy defense acquisition, technology base,
or industrial base requirements; and
(5) A description of any alternate means available to satisfy the
requirement, e.g., use of substitute products or technology or alternate
approaches to accomplish the program objectives.
(D) In accordance with 10 U.S.C. 2536(b)(1)(B), the Secretary of
Defense may, in the case of a contract awarded for environmental
restoration, remediation, or waste management at a DoD facility, waive
the prohibition in paragraph (g)(ii)(A) of this subsection upon--
(1) Determining that--
(i) The waiver will advance the environmental restoration,
remediation, or waste management objectives of DoD and will not harm the
national security interests of the United States; and
(ii) The entity to which the contract is awarded is controlled by a
foreign government with which the Secretary is authorized to exchange
Restricted Data under section 144c. of the Atomic Energy Act of 1954 (42
U.S.C. 2164(c)); and
(2) Notifying Congress of the decision to grant the waiver. The
contract may be awarded only after the end of the 45-day period
beginning on the date the notification is received by the appropriate
Congressional committees.
[58 FR 28464, May 13, 1993, as amended at 59 FR 51131, 51132, Oct. 7,
1994; 60 FR 29497, June 5, 1995; 62 FR 34121, June 24, 1997; 63 FR
11851, Mar. 11, 1998; 63 FR 14837, Mar. 27, 1998; 65 FR 39704, June 27,
2000; 67 FR 4208, Jan. 29, 2002; 68 FR 7439, Feb. 14, 2003; 74 FR 2413,
Jan. 15, 2009; 75 FR 35685, June 23, 2010; 75 FR 45073, Aug. 2, 2010]
Sec. 209.104-4 Subcontractor responsibility.
Generally, the Canadian Commercial Corporation's (CCC) proposal of a
firm as its subcontractor is sufficient basis for an affirmative
determination of responsibility. However, when the CCC determination of
responsibility is not consistent with other information available to the
contracting officer, the contracting officer shall request from CCC and
any other sources whatever additional information is necessary to make
the responsibility determination.
Sec. 209.104-70 Solicitation provisions.
(a) Use the provision at 252.209-7001, Disclosure of Ownership or
Control by the Government of a Terrorist Country, in solicitations,
including solicitations using FAR part 12 procedures for the acquisition
of commercial items that are expected to result in contracts of $150,000
or more. Any disclosure that the government of a terrorist country has a
significant interest in an offeror or a subsidiary of an offeror shall
be forwarded through agency channels to the address at 209.104-
1(g)(i)(C). If the solicitation includes the the provision at FAR
52.204-7, do not separately list the provision 252.209-7001 in the
solicitation.
(b) Use the provision at 252.209-7002, Disclosure of Ownership or
Control by a Foreign Government, in all solicitations, including those
subject to the procedures in FAR part 13, when access to proscribed
information is necessary for contract performance. If the solicitation
includes the provision at FAR 52.204-7, do not separately list the
provision 252.209-7002 in the solicitation.
[78 FR 37983, June 25, 2013, as amended at 78 FR 40043, July 3, 2013]
Sec. 209.105 Procedures.
Sec. 209.105-1 Obtaining information.
(1) For guidance on using the System for Award Management
Exclusions, see PGI 209.105-1.
(2) A satisfactory performance record is a factor in determining
contractor responsibility (see FAR 9.104-1(c)). One source of
information relating to contractor performance is the Past Performance
Information Retrieval System (PPIRS), available at http://www.ppirs.gov.
Information relating to contract terminations for cause and for default
is also available through PPIRS (see subpart 42.15). This termination
information is just one consideration in determining contractor
responsibility.
[74 FR 2415, Jan. 15, 2009, as amended at 76 FR 76319, Dec. 7, 2011; 78
FR 28757, May 16, 2013]
[[Page 57]]
Sec. 209.105-2 Determinations and documentation.
(a) The contracting officer shall submit a copy of a determination
of nonresponsibility to the appropriate debarring and suspending
official listed in 209.403.
[71 FR 62559, Oct. 26, 2006]
Sec. 209.105-2-70 Inclusion of determination of contractor fault in
Federal Awardee Performance and Integrity Information System
(FAPIIS).
If the contractor or a subcontractor at any tier is not subject to
the jurisdiction of the U.S. courts and the DoD appointing official that
requested a DoD investigation makes a final determination that a
contractor's or subcontractor's gross negligence or reckless disregard
for the safety of civilian or military personnel of the Government
caused serious bodily injury or death of such personnel, the contracting
officer shall enter in FAPIIS the appropriate information regarding such
determination within three days of receiving notice of the
determination, pursuant to section 834 of the National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383). Information
posted in FAPIIS regarding such determinations will be publicly
available.
[76 FR 57677, Sept. 16, 2011]
Sec. 209.106 Preaward surveys.
When requesting a preawared survey, follow the procedures at PGI
209.106.
[69 FR 65089, Nov. 10, 2004]
Subpart 209.2_Qualifications Requirements
Sec. 209.202 Policy.
(a)(1) Except for aviation or ship critical safety items, obtain
approval in accordance with PGI 209.202(a)(1) when establishing
qualification requirements. See 209.270 for approval of qualification
requirements for aviation or ship critical safety items.
[73 FR 1827, Jan. 10, 2008]
Sec. 209.270 Aviation and ship critical safety items.
Sec. 209.270-1 Scope.
This section--
(a) Implements--
(1) Section 802 of the National Defense Authorization Act for Fiscal
Year 2004 (Pub. L. 108-136); and
(2) Section 130 of the National Defense Authorization Act for Fiscal
Year 2007 (Pub. L. 109-364); and
(b) Prescribes policy and procedures for qualification requirements
in the procurement of aviation and ship critical safety items and the
modification, repair, and overhaul of those items.
[73 FR 1827, Jan. 10, 2008]
Sec. 209.270-2 Definitions.
As used in this section--
Aviation critical safety item means a part, an assembly,
installation equipment, launch equipment, recovery equipment, or support
equipment for an aircraft or aviation weapon system if the part,
assembly, or equipment contains a characteristic any failure,
malfunction, or absence of which could cause--
(1) A catastrophic or critical failure resulting in the loss of or
serious damage to the aircraft or weapon system;
(2) An unacceptable risk of personal injury or loss of life; or
(3) An uncommanded engine shutdown that jeopardizes safety.
Design control activity--(1) With respect to an aviation critical
safety item, means the systems command of a military department that is
specifically responsible for ensuring the air worthiness of an aviation
system or equipment in which an aviation critical safety item is to be
used; and
(2) With respect to a ship critical safety item, means the systems
command of a military department that is specifically responsible for
ensuring the seaworthiness of a ship or ship equipment in which a ship
critical safety item is to be used.
Ship critical safety item means any ship part, assembly, or support
equipment containing a characteristic the failure, malfunction, or
absence of which could cause--
[[Page 58]]
(1) A catastrophic or critical failure resulting in loss of or
serious damage to the ship; or
(2) An unacceptable risk of personal injury or loss of life.
[69 FR 55988, Sept. 17, 2004, as amended at 73 FR 1827, Jan. 10, 2008]
Sec. 209.270-3 Policy.
(a) The head of the contracting activity responsible for procuring
an aviation or ship critical safety item may enter into a contract for
the procurement, modification, repair, or overhaul of such an item only
with a source approved by the head of the design control activity.
(b) The approval authorities specified in this section apply instead
of those otherwise specified in FAR 9.202(a)(1), 9.202(c), or 9.206-
1(c), for the procurement, modification, repair, and overhaul of
aviation or ship critical safety items.
[73 FR 1827, Jan. 10, 2008]
Sec. 209.270-4 Procedures.
(a) The head of the design control activity shall--
(1) Identify items that meet the criteria for designation as
aviation or ship critical safety items. See additional information at
PGI 209.270-4;
(2) Approve qualification requirements in accordance with procedures
established by the design control activity; and
(3) Qualify and identify aviation and ship critical safety item
suppliers and products.
(b) The contracting officer shall--
(1) Ensure that the head of the design control activity has
determined that a prospective contractor or its product meets or can
meet the established qualification standards before the date specified
for award of the contract;
(2) Refer any offers received from an unapproved source to the head
of the design control activity for approval. The head of the design
control activity will determine whether the offeror or its product meets
or can meet the established qualification standards before the date
specified for award of the contract; and
(3) Refer any requests for qualification to the design control
activity.
(c) See 246.407 (S-70) and 246.504 for quality assurance
requirements.
[69 FR 55988, Sept. 17, 2004, as amended at 70 FR 57190, Sept. 30, 2005;
73 FR 1827, Jan. 10, 2008]
Sec. 209.270-5 Contract clause.
The contracting officer shall insert the clause at 252.209-7010,
Critical Safety Items, in solicitations and contracts when the
acquisition includes one or more items designated by the design control
activity as critical safety items.
[76 FR 52139, Aug. 19, 2011]
Subpart 209.3 [Reserved]
Subpart 209.4_Debarment, Suspension, and Ineligibility
Sec. 209.402 Policy.
(d) The uniform suspension and debarment procedures to be followed
by all debarring and suspending officials are set out in appendix H to
this chapter.
(e) The department or agency shall provide a copy of the Debarment
and Suspension Procedures at DFARS appendix H to this chapter to
contractors at the time of their suspension or when they are proposed
for debarment, and upon request to other interested parties.
[59 FR 27668, May 27, 1994]
Sec. 209.403 Definitions.
Debarring and suspending official. (1) For DoD, the designees are--
Army--Director, Soldier & Family Legal Services
Navy/Marine Corps--The Assistant General Counsel (Acquisition Integrity)
Air Force--Deputy General Counsel (Contractor Responsibility)
Defense Advanced Research Projects Agency--The Director
Defense Information Systems Agency--The General Counsel
Defense Intelligence Agency--The Senior Procurement Executive
Defense Logistics Agency--The Special Assistant for Contracting
Integrity
National Geospatial--Intelligence Agency--The General Counsel
Defense Threat Reduction Agency--The Director
[[Page 59]]
National Security Agency--The Senior Acquisition Executive
Missile Defense Agency--The General Counsel
Overseas installations--as designated by the agency head
(2) Overseas debarring and suspending officials--
(i) Are authorized to debar or suspend contractors located within
the official's geographic area of responsibility under any delegation of
authority they receive from their agency head.
(ii) Debar or suspend in accordance with the procedures in FAR
subpart 9.4 or under modified procedures approved by the agency head
based on consideration of the laws or customs of the foreign countries
concerned.
(iii) In addition to the bases for debarment in FAR 9.406-2, may
consider the following additional bases--
(A) The foreign country concerned determines that a contractor has
engaged in bid-rigging, price-fixing, or other anti-competitive
behavior; or
(B) The foreign country concerned declares the contractor to be
formally debarred, suspended, or otherwise ineligible to contract with
that foreign government or its instrumentalities.
(3) The Defense Logistics Agency Special Assistant for Contracting
Integrity is the exclusive representative of the Secretary of Defense to
suspend and debar contractors from the purchase of Federal personal
property under the Federal Property Management Regulations (41 CFR 101-
45.6) and the Defense Materiel Disposition Manual (DoD 4160.21-M).
[56 FR 36313, July 31, 1991, as amended at 56 FR 67212, Dec. 30, 1991;
59 FR 27669, May 27, 1994; 60 FR 61593, Nov. 30, 1995; 61 FR 50452,
Sept. 26, 1996; 63 FR 11528, Mar. 9, 1998; 64 FR 51075, Sept. 21, 1999;
64 FR 62985, Nov. 18, 1999; 68 FR 7439, Feb. 14, 2003; 70 FR 14573, Mar.
23, 2005; 74 FR 42780, Aug. 25, 2009; 74 FR 52895, Oct. 15, 2009; 76 FR
11367, Mar. 2, 2011; 76 FR 76319, Dec. 7, 2011; 77 FR 23631, Apr. 20,
2012; 77 FR 52253, Aug. 29, 2012]
Sec. 209.405 Effect of listing.
(a) Under 10 U.S.C. 2393(b), when a department or agency determines
that a compelling reason exists for it to conduct business with a
contractor that is debarred or suspended from procurement programs, it
must provide written notice of the determination to the General Services
Administration (GSA), GSA Suspension and Debarment Official, Office of
Acquisition Policy, 1275 First Street, NE., Washington, DC 20417.
Examples of compelling reasons are--
(i) Only a debarred or suspended contractor can provide the supplies
or services;
(ii) Urgency requires contracting with a debarred or suspended
contractor;
(iii) The contractor and a department or agency have an agreement
covering the same events that resulted in the debarment or suspension
and the agreement includes the department or agency decision not to
debar or suspend the contractor; or
(iv) The national defense requires continued business dealings with
the debarred or suspended contractor.
(b)(i) The Procurement Cause and Treatment Code ``H'' annotation in
the GSA List of Parties Excluded from Federal Procurement and
Nonprocurement Programs identifies contractor facilities where no part
of a contract or subcontract may be performed because of a violation of
the Clean Air Act (42 U.S.C. 7606) or the Clean Water Act (33 U.S.C.
1368).
(ii) Under the authority of Section 8 of Executive Order 11738, the
agency head may grant an exemption permitting award to a contractor
using a Code ``H'' ineligible facility if the agency head determines
that such an exemption is in the paramount interest of the United
States.
(A) The agency head may delegate this exemption authority to a level
no lower than a general or flag officer or a member of the Senior
Executive Service.
(B) The official granting the exemption--
(1) Shall promptly notify the Environmental Protection Agency
suspending and debarring official of the exemption and the corresponding
justification; and
(2) May grant a class exemption only after consulting with the
Environmental Protection Agency suspending and debarring official.
(C) Exemptions shall be for a period not to exceed one year. The
continuing necessity for each exemption shall be
[[Page 60]]
reviewed annually and, upon the making of a new determination, may be
extended for periods not to exceed one year.
(D) All exemptions must be reported annually to the Environmental
Protection Agency suspending and debarring official.
(E) See PGI 209.405 for additional procedures and information.
[74 FR 2414, Jan. 15, 2009, as amended at 76 FR 27274, May 11, 2011]
Sec. 209.405-2 Restrictions on subcontracting.
(a) The contracting officer shall not consent to any subcontract
with a firm, or a subsidiary of a firm, that is identified by the
Secretary of Defense as being owned or controlled by the government of a
terrorist country unless the agency head states in writing the
compelling reasons for the subcontract.
[63 FR 14837, Mar. 27, 1998]
Sec. 209.406 Debarment.
Sec. 209.406-1 General.
(a)(i) When the debarring official decides that debarment is not
necessary, the official may require the contractor to enter into a
written agreement which includes--
(A) A requirement for the contractor to establish, if not already
established, and to maintain the standards of conduct and internal
control systems prescribed by FAR subpart 3.10; and
(B) Other requirements the debarring official considers appropriate.
(ii) Before the debarring official decides not to suspend or debar
in the case of an indictment or conviction for a felony, the debarring
official must determine that the contractor has addressed adequately the
circumstances that gave rise to the misconduct, and that appropriate
standards of ethics and integrity are in place and are working.
[57 FR 14992, Apr. 23, 1992, as amended at 76 FR 76319, Dec. 7, 2011]
Sec. 209.406-2 Causes for debarment.
(1) Any person shall be considered for debarment if criminally
convicted of intentionally affixing a label bearing a ``Made in
America'' inscription to any product sold in or shipped to the United
States or its outlying areas that was not made in the United States or
its outlying areas (10 U.S.C. 2410f).
(i) The debarring official will make a determination concerning
debarment not later than 90 days after determining that a person has
been so convicted.
(ii) In cases where the debarring official decides not to debar, the
debarring official will report that decision to the Director of Defense
Procurement and Acquisition Policy who will notify Congress within 30
days after the decision is made.
(2) Any contractor that knowingly provides compensation to a former
DoD official in violation of section 847 of the National Defense
Authorization Act for Fiscal Year 2008 may face suspension and debarment
proceedings in accordance with 41 U.S.C. 2105(c)(1)(C).
[58 FR 28464, May 13, 1993, as amended at 68 FR 7439, Feb. 14, 2003; 70
FR 35544, June 21, 2005; 74 FR 2409, Jan. 15, 2009; 76 FR 58136, Sept.
20, 2011]
Sec. Sec. 209.406-3 Procedures.
Refer all matters appropriate for consideration by an agency
debarring and suspending official as soon as practicable to the
appropriate debarring and suspending official identified in 209.403. Any
person may refer a matter to the debarring and suspending official.
Follow the procedures at PGI 209.406-3.
[69 FR 74990, Dec. 15, 2004]
Sec. 209.407 Suspension.
Sec. Sec. 209.407-3 Procedures.
Refer all matters appropriate for consideration by an agency
debarring and suspending official as soon as practicable to the
appropriate debarring and suspending official identified in 209.403. Any
person may refer a matter to the debarring and suspending official.
Follow the procedures at PGI 209.407-3.
[69 FR 74990, Dec. 15, 2004]
[[Page 61]]
Sec. 209.409 Solicitation provision and contract clause.
Use the clause at 252.209-7004, Subcontracting with Firms That Are
Owned or Controlled by the Government of a Terrorist Country, in
solicitations and contracts with a value of $150,000 or more.
[63 FR 14837, Mar. 27, 1998, as amended at 75 FR 45073, Aug. 2, 2010]
Sec. 209.470 Reserve Officer Training Corps and military recruiting on
campus.
Sec. 209.470-1 Definition.
Institution of higher education, as used in this section, means an
institution that meets the requirements of 20 U.S.C. 1001 and includes
all subelements of such an institution.
[65 FR 2056, Jan. 13, 2000]
Sec. 209.470-2 Policy.
(a) Except as provided in paragraph (b) of this subsection, 10
U.S.C. 983 prohibits DoD from providing funds by contract or grant to an
institution of higher education if the Secretary of Defense determines
that the institution has a policy or practice that prohibits or in
effect prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer Training
Corps (ROTC) at that institution;
(2) A student at that institution from enrolling in a unit of the
senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Transportation from gaining entry to campuses, or access to students on
campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing certain information
pertaining to students enrolled at that institution.
(b) The prohibition in paragraph (a) of this subsection does not
apply to an institution of higher education if the Secretary of Defense
determines that--
(1) The institution has ceased the policy or practice described in
paragraph (a) of this subsection; or
(2) The institution has a long-standing policy of pacifism based on
historical religious affiliation.
[65 FR 2056, Jan. 13, 2000]
Sec. 209.470-3 Procedures.
If the Secretary of Defense determines that an institution of higher
education is ineligible to receive DoD funds because of a policy or
practice described in 209.470-2(a)--
(a) The Secretary of Defense will list the institution on the List
of Parties Excluded from Federal Procurement and Nonprocurement Programs
published by General Services Administration (also see FAR 9.404 and 32
CFR part 216); and
(b) DoD components--
(1) Shall not solicit offers from, award contracts to, or consent to
subcontracts with the institution;
(2) Shall make no further payments under existing contracts with the
institution; and
(3) Shall terminate existing contracts with the institution.
[65 FR 2057, Jan. 13, 2000, as amended at 67 FR 49254, July 30, 2002]
Sec. 209.470-4 Solicitation provision and contract clause.
(a) Use the provision at 252.209-7003, Reserve Officer Training
Corps and Military Recruiting on Campus--Representation, in all
solicitations with institutions of higher education. If the solicitation
includes the provision at FAR 52.204-7, do not separately list the
provision 252.209-7003 in the solicitation.
(b) Use the clause at 252.209-7005, Reserve Officer Training Corps
and Military Recruiting on Campus, in all solicitations and contracts
with institutions of higher education.
[77 FR 19129, Mar. 30, 2012, as amended at 78 FR 37984, June 25, 2013;
78 FR 40043, July 3, 2013]
Sec. 209.471 Congressional Medal of Honor.
In accordance with Section 8118 of Pub. L. 105-262, do not award a
contract to, extend a contract with, or approve the award of a
subcontract to any entity that, within the preceding 15 years, has been
convicted under 18 U.S.C. 704 of the unlawful manufacture or sale of
[[Page 62]]
the Congressional Medal of Honor. Any entity so convicted will be listed
as ineligible on the List of Parties Excluded from Federal Procurement
and Nonprocurement Programs published by the General Services
Administration.
[64 FR 31733, June 14, 1999]
Subpart 209.5_Organizational and Consultant Conflicts of Interest
Source: 73 FR 1824, Jan. 10, 2008, unless otherwise noted.
Sec. 209.505 General rules.
Sec. 209.505-4 Obtaining access to proprietary information.
(b) For contractors accessing third party proprietary technical data
or computer software, non-disclosure requirements are addressed at
227.7103-7(b), through use of the clause at 252.227-7025 as prescribed
at 227.7103-6(c) and 227.7203-6(d). Pursuant to that clause, covered
Government support contractors may be required to enter into non-
disclosure agreements directly with the third party asserting
restrictions on limited rights technical data, commercial technical
data, or restricted rights computer software. The contracting officer is
not required to obtain copies of these agreements or to ensure that they
are properly executed.
[78 FR 30238, May 22, 2013]
Sec. 209.570 Limitations on contractors acting as lead system
integrators.
Sec. 209.570-1 Definitions.
Lead system integrator, as used in this section, is defined in the
clause at 252.209-7007, Prohibited Financial Interests for Lead System
Integrators. See PGI 209.570-1 for additional information.
Sec. 209.570-2 Policy.
(a) Except as provided in paragraph (b) of this subsection, 10
U.S.C. 2410p prohibits any entity performing lead system integrator
functions in the acquisition of a major system by DoD from having any
direct financial interest in the development or construction of any
individual system or element of any system of systems.
(b) The prohibition in paragraph (a) of this subsection does not
apply if--
(1) The Secretary of Defense certifies to the Committees on Armed
Services of the Senate and the House of Representatives that--
(i) The entity was selected by DoD as a contractor to develop or
construct the system or element concerned through the use of competitive
procedures; and
(ii) DoD took appropriate steps to prevent any organizational
conflict of interest in the selection process; or
(2) The entity was selected by a subcontractor to serve as a lower-
tier subcontractor, through a process over which the entity exercised no
control.
(c) In accordance with Section 802 of the National Defense
Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), DoD may award
a new contract for lead system integrator functions in the acquisition
of a major system only if--
(1) The major system has not yet proceeded beyond low-rate initial
production; or
(2) The Secretary of Defense determines in writing that it would not
be practicable to carry out the acquisition without continuing to use a
contractor to perform lead system integrator functions and that doing so
is in the best interest of DoD. The authority to make this determination
may not be delegated below the level of the Under Secretary of Defense
for Acquisition, Technology, and Logistics. (Also see 209.570-3(b).)
(d) Effective October 1, 2010, DoD is prohibited from awarding a new
contract for lead system integrator functions in the acquisition of a
major system to any entity that was not performing lead system
integrator functions in the acquisition of the major system prior to
January 28, 2008.
[73 FR 1824, Jan. 10, 2008, as amended at 74 FR 34268, July 15, 2009]
Sec. 209.570-3 Procedures.
(a) In making a responsibility determination before awarding a
contract for the acquisition of a major system, the contracting officer
shall--
[[Page 63]]
(1) Determine whether the prospective contractor meets the
definition of ``lead system integrator'';
(2) Consider all information regarding the prospective contractor's
direct financial interests in view of the prohibition at 209.570-2(a);
and
(3) Follow the procedures at PGI 209.570-3.
(b) A determination to use a contractor to perform lead system
integrator functions in accordance with 209.570-2(c)(2)--
(1) Shall specify the reasons why it would not be practicable to
carry out the acquisition without continuing to use a contractor to
perform lead system integrator functions, including a discussion of
alternatives, such as use of the DoD workforce or a system engineering
and technical assistance contractor;
(2) Shall include a plan for phasing out the use of contracted lead
system integrator functions over the shortest period of time consistent
with the interest of the national defense; and
(3) Shall be provided to the Committees on Armed Services of the
Senate and the House of Representatives at least 45 days before the
award of a contract pursuant to the determination.
[74 FR 34268, July 15, 2009]
Sec. 209.570-4 Solicitation provision and contract clause.
(a) Use the provision at 252.209-7006, Limitations on Contractors
Acting as Lead System Integrators, in solicitations for the acquisition
of a major system when the acquisition strategy envisions the use of a
lead system integrator.
(b) Use the clause at 252.209-7007, Prohibited Financial Interests
for Lead System Integrators--
(1) In solicitations that include the provision at 252.209-7006; and
(2) In contracts when the contractor will fill the role of a lead
system integrator for the acquisition of a major system.
Sec. 209.571 Organizational conflicts of interest in major defense
acquisition programs.
Sec. 209.571-0 Scope of subpart.
This subpart implements section 207 of the Weapons System
Acquisition Reform Act of 2009 (Pub. L. 111-23).
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-1 Definitions.
As used in this section--
``Lead system integrator'' is defined in the clause at 252.209-7007,
Prohibited Financial Interests for Lead System Integrators.
``Major Defense Acquisition Program'' is defined in 10 U.S.C. 2430.
``Major subcontractor'' is defined in the clause at 252.209-7009,
Organizational Conflict of Interest--Major Defense Acquisition Program.
``Pre-Major Defense Acquisition Program'' means a program that is in
the Materiel Solution Analysis or Technology Development Phases
preceding Milestone B of the Defense Acquisition System and has been
identified to have the potential to become a major defense acquisition
program.
``Systems engineering and technical assistance.''
(1) ``Systems engineering'' means an interdisciplinary technical
effort to evolve and verify an integrated and total life cycle balanced
set of system, people, and process solutions that satisfy customer
needs.
(2) ``Technical assistance'' means the acquisition support, program
management support, analyses, and other activities involved in the
management and execution of an acquisition program.
(3) ``Systems engineering and technical assistance''--
(i) Means a combination of activities related to the development of
technical information to support various acquisition processes. Examples
of systems engineering and technical assistance activities include, but
are not limited to, supporting acquisition efforts such as--
(A) Deriving requirements;
(B) Performing technology assessments;
(C) Developing acquisition strategies;
(D) Conducting risk assessments;
[[Page 64]]
(E) Developing cost estimates;
(F) Determining specifications;
(G) Evaluating contractor performance and conducting independent
verification and validation;
(H) Directing other contractors' (other than subcontractors)
operations;
(I) Developing test requirements and evaluating test data;
(J) Developing work statements (but see paragraph (ii)(B) of this
definition).
(ii) Does not include--
(A) Design and development work of design and development
contractors, in accordance with FAR 9.505-2(a)(3) or FAR 9.505-2(b)(3),
and the guidance at PGI 209.571-7; or
(B) Preparation of work statements by contractors, acting as
industry representatives, under the supervision and control of
Government representatives, in accordance with FAR 9.505-2(b)(1)(ii).
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-2 Applicability.
(a) This subsection applies to major defense acquisition programs.
(b) To the extent that this section is inconsistent with FAR subpart
9.5, this section takes precedence.
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-3 Policy.
It is DoD policy that--
(a) Agencies shall obtain advice on major defense acquisition
programs and pre-major defense acquisition programs from sources that
are objective and unbiased; and
(b) Contracting officers generally should seek to resolve
organizational conflicts of interest in a manner that will promote
competition and preserve DoD access to the expertise and experience of
qualified contractors. Accordingly, contracting officers should, to the
extent feasible, employ organizational conflict of interest resolution
strategies that do not unnecessarily restrict the pool of potential
offerors in current or future acquisitions. Further, contracting
activities shall not impose across-the-board restrictions or limitations
on the use of particular resolution methods, except as may be required
under 209.571-7 or as may be appropriate in particular acquisitions.
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-4 Mitigation.
(a) Mitigation is any action taken to minimize an organizational
conflict of interest. Mitigation may require Government action,
contractor action, or a combination of both.
(b) If the contracting officer and the contractor have agreed to
mitigation of an organizational conflict of interest, a Government-
approved Organizational Conflict of Interest Mitigation Plan, reflecting
the actions a contractor has agreed to take to mitigate a conflict,
shall be incorporated into the contract.
(c) If the contracting officer determines, after consultation with
agency legal counsel, that the otherwise successful offeror is unable to
effectively mitigate an organizational conflict of interest, then the
contracting officer, taking into account both the instant contract and
longer term Government needs, shall use another approach to resolve the
organizational conflict of interest, select another offeror, or request
a waiver in accordance with FAR 9.503 (but see statutory prohibition in
209.571-7, which cannot be waived).
(d) For any acquisition that exceeds $1 billion, the contracting
officer shall brief the senior procurement executive before determining
that an offeror's mitigation plan is unacceptable.
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-5 Lead system integrators.
For limitations on contractors acting as lead systems integrators,
see 209.570.
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-6 Identification of organizational conflicts of interest.
When evaluating organizational conflicts of interest for major
defense acquisition programs or pre-major defense acquisition programs,
contracting officers shall consider--
(a) The ownership of business units performing systems engineering
and technical assistance, professional services, or management support
services to a major defense acquisition program
[[Page 65]]
or a pre-major defense acquisition program by a contractor who
simultaneously owns a business unit competing (or potentially competing)
to perform as--
(1) The prime contractor for the same major defense acquisition
program; or
(2) The supplier of a major subsystem or component for the same
major defense acquisition program.
(b) The proposed award of a major subsystem by a prime contractor to
business units or other affiliates of the same parent corporate entity,
particularly the award of a subcontract for software integration or the
development of a proprietary software system architecture; and
(c) The performance by, or assistance of, contractors in technical
evaluation.
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-7 Systems engineering and technical assistance contracts.
(a) Agencies shall obtain advice on systems architecture and systems
engineering matters with respect to major defense acquisition programs
or pre-major defense acquisition programs from Federally Funded Research
and Development Centers or other sources independent of the major
defense acquisition program contractor.
(b) Limitation on Future Contracting. (1) Except as provided in
paragraph (c) of this subsection, a contract for the performance of
systems engineering and technical assistance for a major defense
acquisition program or a pre-major defense acquisition program shall
prohibit the contractor or any affiliate of the contractor from
participating as a contractor or major subcontractor in the development
or production of a weapon system under such program.
(2) The requirement in paragraph (b)(1) of this subsection cannot be
waived.
(c) Exception. (1) The requirement in paragraph (b)(1) of this
subsection does not apply if the head of the contracting activity
determines that--
(i) An exception is necessary because DoD needs the domain
experience and expertise of the highly qualified, apparently successful
offeror; and
(ii) Based on the agreed-to resolution strategy, the apparently
successful offeror will be able to provide objective and unbiased
advice, as required by 209.571-3(a), without a limitation on future
participation in development and production.
(2) The authority to make this determination cannot be delegated.
[75 FR 81913, Dec. 29, 2010]
Sec. 209.571-8 Solicitation provision and contract clause.
(a) Use the provision at 252.209-7008, Notice of Prohibition
Relating to Organizational Conflict of Interest--Major Defense
Acquisition Program, if the solicitation includes the clause at 252.209-
7009, Organizational Conflict of Interest--Major Defense Acquisition
Program; and
(b) Use the clause at 252.209-7009, Organizational Conflict of
Interest--Major Defense Acquisition Program, in solicitations and
contracts for systems engineering and technical assistance for major
defense acquisition programs or pre-major defense acquisition programs.
[75 FR 81913, Dec. 29, 2010]
PART 210_MARKET RESEARCH
Sec.
Sec. 210.001 Policy.
Sec. 210.002 Procedures.
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
Source: 71 FR 53043, Sept. 8, 2006, unless otherwise noted.
Sec. 210.001 Policy.
(a) In addition to the requirements of FAR 10.001(a), agencies
shall--
(i) Conduct market research appropriate to the circumstances
before--
(A) Soliciting offers for acquisitions that could lead to a
consolidation of contract requirements as defined in 207.170-2; or
(B) Issuing a solicitation with tiered evaluation of offers (Section
816 of Public Law 109-163); and
(ii) Use the results of market research to determine--
(A) Whether consolidation of contract requirements is necessary and
justified in accordance with Sec. 207.170-3; or
[[Page 66]]
(B) Whether the criteria in FAR part 19 are met for setting aside
the acquisition for small business or, for a task or delivery order,
whether there are a sufficient number of qualified small business
concerns available to justify limiting competition under the terms of
the contract. If the contracting officer cannot determine whether the
criteria are met, the contracting officer shall include a written
explanation in the contract file as to why such a determination could
not be made (Section 816 of Public Law 109-163).
(c)(2) In addition to the notification requirements at FAR
10.001(c)(2)(i) and (ii), see 205.205-70 for the bundling notification
publication requirement.
[71 FR 53043, Sept. 8, 2006, as amended at 75 FR 40716, July
13, 2010]
Sec. 210.002 Procedures.
When contracting for services, see the market research report guide
for improving the tradecraft in services acquisition at PGI 210.070.
[77 FR 52253, Aug. 29, 2012]
PART 211_DESCRIBING AGENCY NEEDS
Sec.
Sec. 211.002 Policy.
Sec. 211.002-70 Contract clause.
Subpart 211.1_Selecting and Developing Requirements Documents
Sec. 211.105 Items peculiar to one manufacturer.
Sec. 211.106 Purchase descriptions for service contracts.
Sec. 211.107 Solicitation provision.
Sec. 211.170 Requiring the use of fire-resistant rayon fiber.
Subpart 211.2_Using and Maintaining Requirements Documents
Sec. 211.201 Identification and availability of specifications.
Sec. 211.204 Solicitation provisions and contract clauses.
Sec. 211.270 [Reserved]
Sec. 211.271 Elimination of use of class I ozone-depleting substances.
Sec. 211.272 Alternate preservation, packaging, and packing.
Sec. 211.273 Substitutions for military or Federal specifications and
standards.
Sec. 211.273-1 Definition.
Sec. 211.273-2 Policy.
Sec. 211.273-3 Procedures.
Sec. 211.273-4 Contract clause.
Sec. 211.274 Item identification and valuation requirements.
Sec. 211.274-1 General.
Sec. 211.274-2 Policy for unique item identification.
Sec. 211.274-3 Policy for valuation.
Sec. 211.274-4 Policy for reporting of Government-furnished property.
Sec. 211.274-5 Policy for assignment of Government-assigned serial
numbers.
Sec. 211.274-6 Contract clauses.
Sec. 211.275 Passive radio frequency identification.
Sec. 211.275-1 Definitions.
Sec. 211.275-2 Policy.
Sec. 211.275-3 Contract clause.
Subpart 211.5_Liquidated Damages
Sec. 211.503 Contract clauses.
Subpart 211.6_Priorities and Allocations
Sec. 211.602 General.
Authority: 41 U.S.C. 1303 and 48 CFR Chapter 1.
Source: 60 FR 61594, Nov. 30, 1995, unless otherwise noted.
Sec. 211.002 Policy.
All defense technology and acquisition programs in DoD are subject
to the policies and procedures in DoDD 5000.01, The Defense Acquisition
System, and DoDI 5000.02, Operation of the Defense Acquisition System.
[71 FR 27641, May 12, 2006, as amended at 76 FR 76319, Dec. 7, 2011]
Sec. 211.002-70 Contract clause.
Use the clause at 252.211-7000, Acquisition Streamlining, in all
Subpart 211.1_Selecting and Developing Requirements Documents
Sec. 211.105 Items peculiar to one manufacturer.
Follow the publication requirements at PGI 211.105.
[70 FR 23804, May 5, 2005]
Sec. 211.106 Purchase descriptions for service contracts.
Agencies shall require that purchase descriptions for service
contracts and resulting requirements documents,
[[Page 67]]
such as statements of work or performance work statements, include
language to provide a clear distinction between Government employees and
contractor employees. Agencies shall be guided by the characteristics
and descriptive elements of personal-services contracts at FAR 37.104.
Service contracts shall require contractor employees to identify
themselves as contractor personnel by introducing themselves or being
introduced as contractor personnel and displaying distinguishing badges
or other visible identification for meetings with Government personnel.
In addition, contracts shall require contractor personnel to
appropriately identify themselves as contractor employees in telephone
conversations and in formal and informal written correspondence.
[76 FR 25566, May 5, 2011]
Sec. 211.107 Solicitation provision.
(b) DoD uses the categorical method of reporting. Do not use the
provision at FAR 52.211-7, Alternatives to Government-Unique Standards,
in DoD solicitations.
[65 FR 6553, Feb. 10, 2000]
Sec. 211.170 Requiring the use of fire-resistant rayon fiber.
See 225.7016 for the statutory prohibition on requiring the use of
fire-resistant rayon fiber.
[76 FR 71833, Nov. 18, 2011]
Subpart 211.2_Using and Maintaining Requirements Documents
Sec. 211.201 Identification and availability of specifications.
Follow the procedures at PGI 211.201 for use of specifications,
standards, and data item descriptions.
[71 FR 27641, May 12, 2006]
Sec. 211.204 Solicitation provisions and contract clauses.
(c) When contract performance requires use of specifications,
standards, and data item descriptions that are not listed in the
Acquisition Streamlining and Standardization Information System
database, use provisions, as appropriate, substantially the same as
those at--
(i) 252.211-7001, Availability of Specifications, Standards, and
Data Item Descriptions Not Listed in the Acquisition Streamlining and
Standardization Information System (ASSIST), and Plans, Drawings, and
Other Pertinent Documents; and
(ii) 252.211-7002, Availability for Examination of Specifications,
Standards, Plans, Drawings, Data Item Descriptions, and Other Pertinent
Documents.
[71 FR 27641, May 12, 2006]
Sec. 211.270 [Reserved]
Sec. 211.271 Elimination of use of class I ozone-depleting substances.
See subpart 223.8 for restrictions on contracting for ozone-
depleting substances.
[70 FR 73150, Dec. 9, 2005]