Department of Homeland Security Acquisition Regulation

DEPARTMENT OF HOMELAND SECURITY

48 CFR Chapter 30

[Docket Number USCG-2003-16571]

RIN 1601-AA16

Department of Homeland Security Acquisition Regulation

AGENCY:

Office of the Chief Procurement Officer, Department of Homeland Security.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Department of Homeland Security (DHS) is issuing an interim rule to establish the Department of Homeland Security Acquisition Regulation (HSAR). The HSAR is intended as regulatory guidance. The HSAR reflects recent changes to the Federal Acquisition Regulation (FAR) and it establishes and encourages participation in the DHS Mentor-Proege Program.

DATES:

This rule is effective on December 4, 2003. Comments must reach the Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy on or before January 5, 2004, to be considered in the formation of the final rule. Comments on collection of information sent to the Office of Management and Budget (OMB) must reach OMB on or before January 5, 2004.

ADDRESSES:

Please submit written comments by one of the following means:

(1) Electronically to

acquisition@dhs.gov.

(2) By mail to the Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy and Oversight, ATTN: Kathy Strouss, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528.

You must also mail comments on collection of information to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, DHS.

FOR FURTHER INFORMATION CONTACT:

Kathy Strouss, Department of Homeland Security, Office of the Chief Procurement Officer, Acquisition Policy, at (202) 205-0141.

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. Your comments will be considered for the final rule we plan to issue to replace this interim rule. If you choose to comment on this rule, please include your name and address, indicate the specific heading of this document to which each comment applies, and give the reason for each comment. Comments should be organized by HSAR Part, and address the specific section (

e.g.

(HSAR) 48 CFR 3006.302-7) that is being commented on. You may submit your comments and material by mail or electronic means to the address under

ADDRESSES.

Please submit your comments and material by only one means. If you submit them by mail, submit them in an unbound format, no larger than 8

1/2

by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Department of Homeland Security, Office of Chief Procurement Officer, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

Background and Purpose

DHS is issuing the Homeland Security Acquisition Regulation (HSAR) to establish a uniform departmentwide acquisition policy and regulation. The HSAR uses plain language for clarity and understanding; does not contain internal operating procedures that do not have a significant effect beyond DHS; and establishes the DHS Mentor-Protege Program.

The Department formed a HSAR Work Group that included both acquisition and legal staff from both the Department and its organizational elements. The team's approach was to develop and issue a regulation that delegates authority, where appropriate, to the lowest levels, is concise, and is simple for contractor's, offerors, and DHS contracting personnel to use.

Discussion of Interim Rule

The parts that contain no coverage and have been reserved are parts 3007, 3008, 3010, 3012, 3014, 3018, 3020, 3021, 3025, 3026, 3029, 3034, 3038, 3039, 3040, 3041, 3043, 3044, 3048, 3049, 3050, and 3051.

Part 3001, Federal Acquisition System, sets forth basic policies and general information about the Department of Homeland Security Regulation system including purpose, guiding principles, applicability, issuance, arrangement, numbering, dissemination, publication and codification, deviations, career development, contracting authority, and policy regarding determinations, waivers, exceptions, approvals and reviews.

Part 3002, Definitions and Abbreviations of Words and Terms, provides definitions and abbreviations for commonly used terms.

Part 3003, Improper Business Practices and Personal Conflicts of Interest, lists the authorities for Standards of Conduct and defines the Federal Acquisition Regulation (FAR) term “authorized official of an agency.” The Part also contains procedures for reporting suspected violations of the Gratuities clause, and reports of suspected antitrust violations, Contingent Fees and subcontractor kickbacks.

Part 3004, Administrative Matters, prescribes an Approval of Contract clause, and a Security Requirements for Unclassified Information Technology Resources clause. The Part also establishes when quick close out procedures can be used, as well as the applicable forms to be used in contract close out.

Part 3005, Publicizing Contract Actions, includes a requirement that releases of information to the general public will follow Freedom of Information Act (FOIA) rules, and a United States Coast Guard (USCG) exemption for publicizing contract actions for personal medical services contracting.

Part 3006, Competition Requirements, includes policies and procedures for establishing or maintaining alternative sources; circumstances permitting other than full and open competition, public interest; and Competition Advocates requirements, duties and responsibilities. The Part also includes a USCG exemption from competition requirements for personal medical services contracting.

Part 3009, Contractor Qualifications, sets forth policy on responsible prospective contractors; debarment, suspension and ineligibility; and a solicitation provision for organizational and consultant conflicts of interest.

Part 3011, Describing Agency Needs, includes a policy on selecting and developing requirements documents; solicitation and contract clauses for using and maintaining requirements documents; liquidated damages; and priorities and allocations.

Part 3013, Simplified Acquisition Procedures, includes a solicitation provision, and contract and purchase order clauses for the USCG bar coding requirement. It also includes the implementation of DHS special streamlined acquisition authorities.

Part 3015, Contracting By Negotiation, prescribes a Key Personnel or Facilities

clause that will be used when selection for award is substantially based on offeror's possession of special capabilities. A policy on handling proposals and information, payment of profit or fee, and unsolicited proposals is also included in this Part.

Part 3016, Types of Contracts, includes a policy on fixed price, incentive, indefinite-delivery contracts, and a settlement of letter contract clause.

Part 3017, Special Contracting Methods, includes guidance on use of options, leader company contracting, energy savings performance contracts, and USCG clauses for fixed price contracts for vessel repair, alteration or conversion.

Part 3019, Small Business Programs, sets forth general policies for the small business and small business subcontracting program. This Part prescribes that a provision and clause be placed in all respective solicitations and contracts requiring a subcontracting plan. Also, two clauses are prescribed for DHS' Mentor-Prote

ge

Program, which assists qualified small businesses in receiving developmental assistance from DHS prime contractors in order to increase the base of small businesses eligible to perform DHS contracts and subcontracts.

Part 3022, Application of Labor Laws to Government Acquisitions, sets forth DHS' policy on the admittance of union representatives to DHS installations. Prescriptions for HSAR 3052.222-70, Strikes or Picketing Affecting Timely Completion of the Contract Work, and HSAR 3052.222-71, Strikes or Picketing Affecting Access to a DHS Facility, are included. Guidance on withholding from or suspension of contract payments is also included. This part sets forth the USCG policy, provision and clause for local hires in all solicitations and contracts for construction or services with regard to a State's unemployment rate.

Part 3023, Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace, includes a provision and clause for removal or disposal of hazardous substances. It also includes drug-free workplace applicability guidance and sets forth approval authorities for a determination to suspend payments, terminate contracts or debar and suspend as it relates to this part. This Part also includes a requirement for Accident and Fire reporting when work will be performed on government-owned or leased property.

Part 3024, Protection of Privacy and Freedom of Information, specifies where DHS policies and procedures for implementing the Privacy Act of 1974 and the FOIA are found.

Part 3027, Patents, Data, and Copyrights, provides general guidance on patents, adjustment of royalties and use of patented technology under the North American Free Trade Agreements Act; patent rights clauses; and approval and justification requirements for administration of licensing background patent rights to third parties. Also, it includes guidance on use of an appropriate rights in data clause.

Part 3028, Bonds and Insurance, includes a requirement for the contracting officer to furnish surety information, and it includes policy on execution and administration of bonds. There is a requirement for the USCG to insert a provision or clause on Notification of Miller Act Payment Bond Protection. There are also USCG clauses for the insurance requirements for contracts for lease of aircraft. An insurance provision or clause requirement is found in this part.

Part 3030, Cost Accounting Standards Administration, provides that the Head of the Contracting Activity (HCA) is authorized to waive application of Cost Accounting Standards to individual commercial item, firm-fixed priced contracts.

Part 3031, Contract Cost Principles and Procedures, includes policy for pre-contract costs.

Part 3032, Contract Financing, provides guidance on contract financing for simplified acquisitions and specifies that the Chief Procurement Officer (CPO) is the DHS remedy coordination official. It also contains the Payment by Electronic Funds Transfer—Central Contractor Registration (CCR) requirement for all solicitations and contracts.

Part 3033, Protests, Disputes, and Appeals includes the designation of Department of Transportation Board of Contract Appeals as the DHS BCA.

Part 3035, Research and Development Contracting, includes policy on cost sharing and recoupment.

Part 3036, Construction and Architect and Engineering Contracts, includes a policy on performance reports and a contract clause for special precautions for work at operating airports.

Part 3037, Service Contracting, includes guidance on contract personnel access application, and conditional access to sensitive but unclassified information. The Part also provides policy for personal services contracts.

Part 3042, Contract Administration and Audit Services, includes prescriptions for clauses for dissemination of contract information; contracting officer's technical representative, and a requirement to use the Contractor Performance System for evaluating contractor performance.

Part 3045, Government Property, sets for reporting and auditing requirements, and a provision for a contract clause.

Part 3046, Quality Assurance, includes definitions relative to warranties; criteria for use of warranties; and terms and conditions. The Part also includes additional requirements for the USCG.

Part 3047, Transportation, sets forth the provisions for the transportation clauses for use, when applicable.

Part 3052, Solicitation Provisions and Contract Clauses, provides the text of the provisions and clauses. It also includes the text for the USCG specific provisions and clauses.

Part 3053, Forms, includes five forms that require completion by contractors or contract employees. The forms will be available and linked to the DHS website after they are approved by OMB, and upon publication of the final rule.

The Matrix lists the provisions and clauses, and illustrates whether a provision or clause is required or to be used when applicable.

Regulatory Assessment

This interim rule is not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13132, Federalism, and is not a major rule under 5 U.S.C. 804. It therefore does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under Executive Order 12866. It is not significant under the regulatory policies and procedures of the Department of Homeland Security.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this interim rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. An Initial Regulatory

Flexibility Analysis has not been performed.

The Mentor-Protégé Program does apply to large business and small business firms that receive a form of incentive for assuming the role of mentor to small businesses, other small disadvantaged businesses, qualified HUBZone small businesses, small businesses owned and controlled by service disabled veterans, and small women-owned businesses. It is expected that the protégé entities would directly benefit from the forms of mentoring provided for in this rule. The interim regulation provides consistency with the FAR.

Collection of Information

This interim rule contains information collection requirements subject to the Paperwork Reduction Act (44 U.S.C. 3501-3520) that are being submitted to OMB for approval. As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. DHS is awaiting approval from OMB for the five (5) forms that are referenced in the HSAR, and that can be found in Part 3053. DHS is also awaiting approval and the assignment of numbers for contract, solicitations and protests.

This information will be shown in HSAR Section 3001.106 and Part 3053, and will be published separately. This information is required by the Office of the Chief Procurement Officer in order to solicit, negotiate, award, and administer contracts in accordance with the Federal Acquisition Regulation, other regulations and statutes; in order to evaluate offers, ensure appropriate contract cost controls, and minimize conditions conducive to fraud, waste, and abuse; and in order to collect appropriate information from prospective contractors when protests are filed.

Additionally, the collections of information in this rule in part 3053 are for DHS Forms 0700-01 through 0700-05. These forms will be used when applicable for the following purposes: Cumulative Claim and Reconciliation Statement; Contractor's Assignment of Refunds, Rebates, Credits, and Other Amounts; Contractor's Release; Contractor Report of Government Property; and Employee Claim for Wage Restitution.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this interim rule to the Office of Management and Budget (OMB) for its review of the collection of information. Due to the circumstances surrounding this temporary rule, we asked for “emergency processing” of our request.

We ask for public comment on the collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to DHS at the address indicated under

ADDRESSES

, by the date under

DATES

.

You need not respond to a collection of information unless it displays a currently valid control number from OMB.

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. This rule is not subject to the requirements of Executive Order 13132. DHS has determined that this proposed rule does not contain federalism implications and would not preempt State laws.

Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Homeland Security that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Sections 833 and 835 of the Homeland Security Act (Public Law 107-296), signed on November 25, 2002. The act provides authorities to be used in contracting for supplies and services required to accomplish the DHS mission of preventing and reducing terrorist attacks as well as minimizing damage and assisting in recovery from terrorist attacks for the Department and its organizational elements (OEs). Comments received in response to this interim rule will be considered in the formation of the final rule.

Under 5 U.S.C. 553(b)(B), the Department of Homeland Security (DHS) finds that good cause exists for not publishing a general notice of proposed rulemaking (NPRM). DHS consists of agencies and other operating elements of Government that pre-existed the formation of DHS. Prior to DHS's formation, those agencies used supplemental acquisition regulations as a foundation for the conduct of their procurement and acquisition functions. For example, the Coast Guard utilized the Department of Transportation (DOT) Acquisition Regulations found at 48 CFR Chapter 12. The Coast Guard can no longer rely on the DOT regulations since they no longer are a part of DOT. Similarly, organizations that used the Department of Treasury's or Department of Justice's acquisition supplements can no longer rely on those regulations.

DHS finds that due to an urgent need for seamless continued acquisition and contracting operations of the previous agencies and organizations that now comprise DHS, it is impracticable to afford the public an opportunity to comment prior to issuing this interim rule. Currently, there are no Department-level acquisition regulations governing DHS's vital contracting business. Consequently, a delay in issuing this regulation would be contrary to the public interest. This regulation realigns contracting authority within the Department and provides uniform regulatory guidance for the acquisition of supplies and services required to accomplish DHS's mission of preventing and reducing terrorist attacks as well as minimizing damage and assisting in recovery from terrorist attacks.

Under 5 U.S.C. 553(d)(3), DHS also finds that for the same reasons discussed above respecting 5 U.S.C. 553(b)(B), good cause exists for making this rule effective in less than 30 days after publication in the

Federal Register

.

List of Subjects in 48 CFR Parts 3001 Through 3053

Government procurement.

Dated: November 21, 2003.

Gregory D. Rothwell,

Chief Procurement Officer.

For the reasons discussed in the preamble, the Department of Homeland Security is adding chapter 30 of title 48 in the CFR to read as follows:

CHAPTER 30—DEPARTMENT OF HOMELAND SECURITY, HOMELAND SECURITY ACQUISITION REGULATION (HSAR)

SUBCHAPTER A—GENERAL

PART 3001—FEDERAL ACQUISITION REGULATIONS SYSTEM

PART 3002—DEFINITIONS OF WORDS AND TERMS

PART 3003—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

PART 3004—ADMINISTRATIVE MATTERS

SUBCHAPTER B—ACQUISITION PLANNING

PART 3005—PUBLICIZING CONTRACT ACTIONS

PART 3006—COMPETITION REQUIREMENTS

PART 3007—ACQUISITION PLANNING—[RESERVED]

PART 3008—REQUIRED SOURCES OF SUPPLIES AND SERVICES—[RESERVED]

PART 3009—CONTRACTOR QUALIFICATIONS

PART 3010—MARKET RESEARCH—[RESERVED]

PART 3011—DESCRIBING AGENCY NEEDS

PART 3012—ACQUISITION OF COMMERCIAL ITEMS—[RESERVED]

SUBCHAPTER C—CONTRACT METHODS AND CONTRACT TYPES

PART 3013—SIMPLIFIED ACQUISITION PROCEDURES

PART 3014—SEALED BIDDING—[RESERVED]

PART 3015—CONTRACTING BY NEGOTIATION

PART 3016—TYPES OF CONTRACTS

PART 3017—SPECIAL CONTRACTING METHODS

PART 3018—[RESERVED]

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

PART 3019—SMALL BUSINESS PROGRAMS

PART 3020—[RESERVED]

PART 3021—[RESERVED]

PART 3022—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

PART 3023—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

PART 3024—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

PART 3025—FOREIGN ACQUISITION—[RESERVED]

PART 3026—OTHER SOCIOECONOMIC PROGRAMS—[RESERVED]

PART 3027—PATENTS, DATA AND COPYRIGHTS

PART 3028—BONDS AND INSURANCE

SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS

PART 3029—TAXES—[RESERVED]

PART 3030—COST ACCOUNTING STANDARDS ADMINISTRATION

PART 3031—CONTRACT COST PRINCIPLES AND PROCEDURES

PART 3032—CONTRACT FINANCING

PART 3033—PROTESTS, DISPUTES, AND APPEALS

PART 3034—MAJOR SYSTEM ACQUISITION—[RESERVED]

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

PART 3035—RESEARCH AND DEVELOPMENT CONTRACTING

PART 3036—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

PART 3037—SERVICE CONTRACTING

PART 3038—FEDERAL SUPPLY SCHEDULE CONTRACTING—[RESERVED]

PART 3039—ACQUISITION OF INFORMATION TECHNOLOGY—[RESERVED]

PART 3040—[RESERVED]

PART 3041—ACQUISITION OF UTILITY SERVICES—[RESERVED]

SUBCHAPTER G—CONTRACT MANAGEMENT

PART 3042—CONTRACT ADMINISTRATION AND AUDIT SERVICES

PART 3043—CONTRACT MODIFICATIONS—[RESERVED]

PART 3044—SUBCONTRACTING POLICIES AND PROCEDURES—[RESERVED]

PART 3045—GOVERNMENT PROPERTY

PART 3046—QUALITY ASSURANCE

PART 3047—TRANSPORTATION

PART 3048—VALUE ENGINEERING—[RESERVED]

PART 3049—TERMINATION OF CONTRACTS—[RESERVED]

PART 3050—EXTRAORDINARY CONTRACTUAL ACTIONS—[RESERVED]

PART 3051—USE OF GOVERNMENT SOURCES BY CONTRACTORS—[RESERVED]

SUBCHAPTER H—CLAUSES AND FORMS

PART 3052—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

PART 3053—FORMS

1. The authority citation for parts 3001 through 3053 reads as follows:

Authority:

41 U.S.C. 418b (a) and (b).

2. The text of parts 3001 through 3053 reads as follows:

PART 3001—FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 3001.1—Purpose, Authority, Issuance

Sec.

3001.101

Purpose.

3001.102

Statement of Guiding Principles for the Federal Acquisition System.

3001.104

Applicability.

3001.105

Issuance.

3001.105-1

Publication and code arrangement.

3001.105-2

Arrangement of regulations.

3001.105-3

Copies.

3001.106

OMB Approval under the Paperwork Reduction Act.

Subpart 3001.3—Agency Acquisition Regulations

3001.301

Policy.

3001.301-70

Amendment of HSAR.

3001.301-71

Effective date.

3001.301-72

HSAC or HSAR Notice numbering.

3001.303

Publication and codification.

3001.304

Agency control and compliance procedures.

Subpart 3001.4—Deviations from the FAR

3001.403

Individual deviations.

3001.404

Class deviations.

Subpart 3001.6—Career Development, Contracting Authority, and Responsibilities

3001.601

General.

3001.602

Contracting Officers.

3001.602-3

Ratification of unauthorized commitments.

3001.603

Selection, appointment, and termination of appointment.

3001.603-1

General.

Subpart 3001.7—Determinations and Findings

3001.704

Content.

Subpart 3001.70—Other Determinations, Waivers, Exceptions, Approvals, Reviews, and Submittals.

3001.7000

Coordination and approval.

3001.7001

Content.

Subpart 3001.1—Purpose, Authority, Issuance

3001.101

Purpose.

The Department of Homeland Security Acquisition Regulation (HSAR) establishes uniform acquisition policies and procedures, which implement and supplement the Federal Acquisition Regulation (FAR).

3001.102

Statement of Guiding Principles for the Federal Acquisition System.

(d) The FAR and this supplement are to be interpreted permissively, if consistent with statutory and regulatory requirements, policy, and sound professional judgment.

3001.104

Applicability.

(a) The following order of precedence applies to resolve any acquisition regulation or procedural inconsistency found within HSAR or the Homeland Security Acquisition Manual (HSAM):

(1) Statute;

(2) FAR or other applicable regulation or Executive Order;

(3) HSAR;

(4) Department of Homeland Security (DHS) Directives; and

(5) HSAM.

(b) The Transportation Security Administration (TSA) exception to this regulation is authorized by the Aviation and Transportation Security Act of 2001 (Section 101(a) of Public Law 107-71). However, see (HSAR) 48 CFR 3033.211, regarding Board of Contract Appeals (BCA).

(c) For nonappropriated fund contracts, the FAR and HSAR will be followed to the maximum extent feasible excluding provisions determined by counsel not to apply to Nonappropriated Fund institutions (NAFIs). Contracting terms may provide for mutual agreement as to the Board of Contract Appeals jurisdiction but this policy will not confer court jurisdiction concerning NAFIs that does not otherwise exist.

3001.105

Issuance.

3001.105-1

Publication and code arrangement.

(a) The HSAR is published in:

(1) The

Federal Register

and

(2) Cumulated form in the Code of Federal Regulations (CFR).

3001.105-2

Arrangement of regulations.

(a) General. The HSAR, which encompasses both Department-wide and

organizational element-unique guidance, conforms to the arrangement and numbering system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is unique to an organization with Head of the Contracting Activity (HCA) authority contains the organization's acronym directly preceding the cite. The following acronyms apply:

Bureau of Customs and Border Protection (CBP)

Bureau of Immigration and Customs Enforcement (ICE)

DHS Office of Procurement Operations (OPO)

Federal Emergency and Management Agency (FEMA) (Includes all elements of the Emergency Preparedness and Response Directorate)

Federal Law Enforcement Training Center (FLETC)

Transportation Security Administration (TSA)

U.S. Coast Guard (USCG)

U.S. Secret Service (Secret Service)

3001.105-3

Copies.

The HSAR is available in the

Federal Register

and electronically at

http://www.dhs.gov/dhspublic/.

3001.106

OMB Approval under the Paperwork Reduction Act.

(a) The Office of Management and Budget (OMB) has assigned the following control numbers that must appear on the upper right-hand corner of the face page of each solicitation, contract, modification, and order:

OMB Control No. 1600-002 (Contract related forms)

OMB Control No. 1600-005 (Offeror submissions)

OMB Control No. 1600-003 (Contractor submissions)

OMB Control No. 1600-004 (Protests)

(b) OMB regulations and OMB's approval and assignment of control numbers are conditioned upon not requiring more than three copies (including the original) of any document of information. OMB has granted a waiver to permit the Department to require up to eight copies of proposal packages, including proprietary data, for solicitations, provided that contractors who submit only an original and two copies will not be placed at a disadvantage.

Subpart 3001.3—Agency Acquisition Regulations

3001.301

Policy.

(a)(1) The HSAR is issued for Departmental guidance according to the policy cited in (FAR) 48 CFR 1.301. The HSAR establishes uniform Homeland Security policies and procedures for all acquisition activities within the Department of the Homeland Security, except the TSA. OE supplemental acquisition regulations to be inserted in the HSAR as a HSAR supplement regulation must be reviewed and approved by the Chief Procurement Officer (CPO) before the CPO submits the proposed coverage for publication in the

Federal Register

according to (FAR) 48 CFR 1.501.

(2)(i) The CPO is authorized to issue internal agency guidance at any organizational level. Department-wide procedures are contained in the HSAM. The HCA may implement internal procedures or supplement the FAR, HSAR, or HSAM as provided in HSAM 3001.3. The HCA may issue procedures or delegate this authority to any organizational level deemed appropriate. OE procedures may be more restrictive or require higher approval levels than those permitted by the HSAM, unless otherwise specified.

(ii) Individuals granted authority in the HSAR may delegate that authority, unless the FAR or HSAR specifically state that the authority is not delegable.

(b) The Under Secretary of Management established procedures through Management Directive (MD) 0490.1, entitled

Federal Register Notice and Rules,

to ensure that agency acquisition regulations are published for comment in the

Federal Register

in conformance with FAR procedures at (FAR) 48 CFR subpart 1.5.

3001.301-70

Amendment of HSAR.

(a) Request for changes to the regulation may be recommended by DHS personnel, other Government agencies, or the public. Change requests are to be submitted in the following format to the Department of Homeland Security, Attn: Office of the Under Secretary of Management, Chief Procurement Officer, Washington, DC 20598.

(1)

Problem:

Succinctly state the problem(s) created by current HSAR requirements or processes and describe the factual or legal reasons for requesting a regulatory change.

(2)

Recommendation:

Identify the recommended change by using the current language and lining through the words to be deleted and inserting proposed language in brackets. If the change is extensive, deleted language may be displayed by forming a box with diagonal lines connecting the corners.

(3)

Discussion:

Explain why the change is necessary and how the change will solve the problem. Address any cost or administrative impact on Government activities, offerors, and contractors. Provide any other helpful information and documents such as statutes, legal decisions, regulations, reports, etc.

(4)

Point of Contact:

Provide a point of contact for answering questions regarding the recommendation, along with a telephone number, e-mail or other method of reaching the contact.

(b) The HSAR is maintained by the CPO through the HSAR/HSAM change process (

i.e.

, input from various OEs including representatives specifically designated to formulate Departmental acquisition policies and procedures).

(1) Homeland Security Acquisition Circular (HSAC). HSAC (

see

(HSAR) 48 Chapter 3001.301-72) will be used to amend (HSAR) 48 Chapter 30.

(2) HSAR Notices will be issued (with a specified expiration date) when interim guidance is necessary under any of the following circumstances:

(i) To promulgate, as rapidly as possible, selected material in a general or narrative manner, in advance of a HSAC issuance;

(ii) To disseminate other acquisition related information; or

(iii) To issue guidance that is expected to be effective for a period of 1 year or less.

3001.301-71

Effective date.

Unless otherwise stated, the following applies—

(a) Statements in HSACs or HSAR Notices that the content is “upon a specified date,” or that changes in the document are “to be used upon receipt,” mean that any new or revised provisions, clauses, procedures, or forms must be included in solicitations or contracts issued thereafter; and

(b) Unless expressly directed by statute or regulation, if solicitations have been issued prior to the HSAC or HSAR notice receipt or publication, the new information (

e.g.

, forms and clauses) need not be included if the Chief of the Contracting Office (COCO) determines, in writing, that including the new information would not be in the best interests of the Government.

3001.301-72

HSAC or HSAR Notice numbering.

HSACs and HSAR Notices will be numbered consecutively on a fiscal year basis beginning with number “01” prefixed by the last two digits of the fiscal year (

e.g.

, HSAR Notices 03-01 and 03-02 indicate the first two HSAR Notices issued in fiscal year 2003).

3001.303

Publication and codification.

(a) The HSAR is issued as chapter 30 of Title 48 of the CFR.

(1) The FAR numbering illustrations at (FAR) 48 CFR 1.105-2 apply to the HSAR.

(2) Coverage within HSAR 48 CFR chapter 30 is identified by the prefix “30” followed by the complete FAR cite which may extend downward to the subparagraph level (

e.g.

, (HSAR) 48 CFR 3001.101).

(3) Coverage in HSAR Chapter 30 that supplements the FAR will use part, subpart, section and subsection numbers ending in “70” through “89”. A series of numbers beginning with “70” is used for provisions and clauses (

e.g.

, (HSAR) 48 CFR 3001.301-70).

(4) Coverage in HSAR 48 CFR chapter 30, other than that identified with a “70” or higher number, which implements the FAR uses the identical number sequence and caption of the FAR segment being implemented which may extend downward to the subparagraph level. Subparagraph numbers/letters may not be shown as sequential, but may be shown by the specific paragraph/subparagraph implemented from the FAR (

e.g.

, (HSAR) 48 CFR 3003.301 contains subparagraphs (a) and (b) because only these subparagraphs, correlating to FAR, are being supplemented by (HSAR) 48 CFR chapter 30).

(5) Organizational Element-unique guidance. Supplementary material for which there is no counterpart in the FAR or HSAR shall be identified using chapter, part, subpart, section, or subsection numbers of “90” and up (

e.g.

, the U.S. Coast Guard's acronym is “USCG”; an USCG-unique clause pertaining to “Inspection and/or Acceptance” would be designated “USCG 3052.246-90”).

(6) References and citations. Cross references to the FAR in the HSAR will be cited by “FAR” followed by the FAR numbered cite, and cross reference to the HSAM in the HSAR will be cited by “HSAM” followed by the HSAM numbered cite.

(7) Department/agency and OE supplements must parallel the FAR and HSAR numbering, except department/agency supplemental numbering uses subsection numbering of 90 and up, instead of 70 and up.

Table 1-1.—HSAR Numbering

FAR

Is implemented as

Is supplemented as

19

3019

3019.70

19.5

3019.5

3019.570

19.501

3019.501

3019.501-70

19.501-1

3019.501-1

3019.501-170

3001.304

Agency control and compliance procedures.

(a) The HSAR is under the direct oversight and control of the Homeland Security, Office of the Chief Procurement Officer (OCPO), which is responsible for evaluation, review, and issuance of all Department-wide acquisition regulations and guidance. Each HCA may supplement the HSAR with OE guidance. Supplementation should be kept to a minimum. OEs proposing to issue regulatory supplements or use solicitation or contract clauses on a repetitive basis must obtain legal review by the OE's legal counsel and forward supplements to the CPO for concurrence prior to publication in the

Federal Register

.

(c) The CPO is responsible for evaluating all regulatory coverage in agency acquisition regulations to determine if the substance could apply to other agencies and to make recommendation for inclusion in the FAR.

Subpart 3001.4—Deviations from the FAR and HSAR

3001.403

Individual deviations.

Unless precluded by law, executive order, or other regulation, the HCA is authorized to approve individual deviation (except with respect to (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost Accounting Standards board rules and regulations at 48 CFR chapter 99 (FAR appendix); and part 50). Submit requests per (HSAR) 48 CFR 3001.7000(a), including complete documentation of the justification for the deviation (

See

HSAM 3001.403).

3001.404

Class deviations.

(a) Unless precluded by law, executive order, or other regulation, the CPO is authorized to approve class deviations (except (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost Accounting Standards board rules and regulations at 48 CFR Chapter 99 (FAR Appendix); and Part 50). Submit requests per (HSAR) 48 CFR 3001.7000(a), including complete documentation of the justification for the deviation, and the number and type of contract actions affected. Include a copy of the approved deviation in each contract file. The CPO will transmit a copy of each approved deviation to the FAR Secretariat.

Subpart 3001.6—Career Development, Contracting Authority, and Responsibilities

3001.601

General.

DHS Delegation Number 0200.1, Delegation to the Directorate of Management, delegates authority from the Secretary to the Under Secretary of Management to manage the acquisition function. DHS Delegation 0700, Delegation to the Chief Procurement Officer for Acquisition and Financial Assistance Management, delegates this authority from the Under Secretary of Management to the Chief Procurement Officer.

3001.602

Contracting officers.

3001.602-3

Ratification of unauthorized commitments.

Department of Homeland Security (DHS) policy requires that acquisitions be made only by Government officials having authority to enter into such acquisitions. Acquisitions made by other than authorized personnel are contrary to Departmental policy and may be considered matters of serious misconduct on the part of an employee making an unauthorized commitment, and may result in disciplinary action being taken against an employee who makes an unauthorized commitment.

3001.603

Selection, appointment, and termination of appointment.

3001.603-1

General.

Under DHS Delegations, the Heads of the Contracting Activity (HCA), with authority to redelegate no lower than the COCO, are authorized to select and appoint contracting officers and terminate their appointment.

Subpart 3001.7—Determinations and Findings

3001.704

Content.

The following format shall be used for all determinations and findings (D&Fs), unless otherwise specified in the FAR or the HSAR. The contracting officer is responsible for preparing D&Fs, and

requirements and technical personnel are responsible for the accuracy and adequacy of the supporting factual information, which shall be furnished to the contracting officer.

Insert specific information indicated in brackets.

Determination and Findings

Under [

insert citation for appropriate statutory and/or regulatory basis for D&F

], the Department of Homeland Security, [

insert contracting activity

], is granted authority to [

insert nature and/or description of the action being approved

].

Findings

[

Findings that detail the particular circumstances, facts, or reasoning essential to support the determination.

]

Determination

[

A determination, based on the findings, that the proposed action is justified under the applicable statute or regulation.

] [

Expiration date of the D&F, if required.

]

[

Signature of authorized official

]

Name and Title

[month, day, and year]

Date

Subpart 3001.70—Other Determinations, Waivers, Exceptions, Approvals, Reviews, and Submittals

3001.7000

Coordination and approval.

Documents requiring CPO approval.

Requests shall be prepared in writing by the contracting officer and submitted through the HCA to the CPO for approval.

3001.7001

Content.

The general format at (HSAR) 48 CFR 3001.704 shall be used to provide a justification to support the requested determination, waiver, exception or approval.

PART 3002—DEFINITIONS OF WORDS AND TERMS

Subpart 3002.1—Definitions

Sec.

3002.101

Definitions.

Subpart 3002.2—Abbreviations

3002.270

Abbreviations.

Subpart 3002.1—Definitions

3002.101

Definitions.

Chief Information Officer (CIO)

means the Director of the Office of the CIO.

Chief of the Contracting Office (COCO)

means the individual(s) responsible for managing the contracting office(s) within an organizational element (OE).

Chief Procurement Officer (CPO)

means the Senior Procurement Executive (SPE).

Contracting activity

includes all the contracting offices within an OE and is the same as the term “procuring activity.”

Contracting officer

means an individual authorized by virtue of position or by appointment to perform the functions assigned by the Federal Acquisition Regulation and the Homeland Security Acquisition Regulation.

Head of Contracting Activity (HCA)

means the individual responsible for direct management of the entire acquisition function within an organizational element.

Head of the Agency

means the Secretary of the Department of Homeland Security, or, by delegation, the Under Secretary of Management. “Legal counsel” means the Department of Homeland Security Office of General Counsel or OE office providing legal services to the contracting organization.

Legal review

means review by legal counsel.

Major system

means an acquisition as defined in Management Directive Number 1400, Investment Review Process.

Micro-purchase threshold

means $2,500 (see (HSAR) 48 CFR 3013-70), except it means—

(1) $2,000 for construction subject to the Davis-Bacon Act; and

(2) $7,500 for acquisitions of supplies or services, except for construction subject to the Davis-Bacon, if the Secretary determines in writing that the mission of the Department (described in Pub. L. 107-296, Sec. 101) would be seriously impaired without the use of such authorities, Act (Pub. L. 107-296, section 833).

Organizational Element (OE)

means the following entities for purposes of this chapter:

(1) Bureau of Customs and Border Protection (CBP);

(2) Bureau of Immigration and Customs Enforcement (ICE);

(3) DHS Office of Procurement Operations (OPO);

(4) Federal Emergency Management Agency (FEMA) (Includes all elements of the Emergency Preparedness and Response Directorate);

(5) Federal Law Enforcement Training Center (FLETC);

(6) Transportation Security Administration (TSA); (TSA is exempt from the HSAR and HSAM according to the “Aviation and Transportation Security Act of 2001”);

(7) U.S. Coast Guard (USCG); and

(8) U.S. Secret Service (Secret Service).

Senior Procurement Executive (SPE)

for the Department of Homeland Security is the Chief Procurement Officer (CPO).

Simplified acquisition threshold

means $100,000 (see (HSAR) 48 CFR 3013-70), except that for acquisitions of supplies or services that, if the Secretary determines in writing that the mission of the Department (described in Pub. L. 107-296, section 101) would be seriously impaired without the use of such authorities from November 25, 2002 to December 30, 2007 (Pub. L. 107-296, section 833(c)), the term means—

(1) $200,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and

(2) $300,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.

Subpart 3002.2—Abbreviations

3002.270

Abbreviations.

CFO Chief Financial Officer

CIO Chief Information Officer

COCO Chief of the Contracting Office

COR Contracting Officers Representative

COTR Contracting Officer's Technical Representative

CPO Chief Procurement Officer

D&F Determination and Findings

DOTBCA Department of Transportation Board of Contract Appeals

FOIA Freedom of Information Act

HCA Head of Contracting Activity

J & A Justification and Approval for Other than Full and Open Competition

KO Contracting officer

MD Management Directive

OCPO Office of the Chief Procurement Officer

OE Organizational Element

OIG Office of the Inspector General

OSDBU Office of Small and Disadvantaged Business Utilization

PCR SBA's Procurement Center Representative

RFP Request for Proposal

SBA Small Business Administration

SBS Small Business Specialist

SPE Senior Procurement Executive

PART 3003—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Subpart 3003.1—Safeguards

Sec.

3003.101

Standards of conduct.

3003.101-3

Agency regulations.

Subpart 3003.2—Contractor Gratuities to Government Personnel

3003.203

Reporting suspected violations of the Gratuities clause.

3003.204

Treatment of violations.

Subpart 3003.3—Reports Of Suspected Antitrust Violations

3003.301

General.

Subpart 3003.4—Contingent Fees

3003.405

Misrepresentations or violations of the Covenant Against Contingent Fees.

Subpart 3003.5—Other Improper Business Practices

3003.502

Subcontractor kickbacks.

3003.502-2

Subcontractor kickbacks.

Subpart 3003.9—Whistleblower Protections for Contractor Employees

3003.901

Definitions.

Subpart 3003.1—Safeguards

3003.101

Standards of conduct.

3003.101-3

Agency regulations.

(a) Government-wide and Department of Homeland Security regulations governing the conduct and responsibilities of employees are contained in 5 CFR parts 2635 and 3101, and MD 0480, Ethics/Standards of Conduct.

Subpart 3003.2—Contractor Gratuities to Government Personnel

3003.203

Reporting suspected violations of the Gratuities clause.

(a) Suspected violations of the Gratuities clause shall be reported to the contracting officer responsible for the acquisition (or the COCO if the contracting officer is suspected of the violation). The contracting officer (or the COCO) shall obtain from the person reporting the violation, and any witnesses to the violation, the following information:

(1) The date, time, and place of the suspected violation;

(2) The name and title (if known) of the individual(s) involved in the violation; and

(3) The details of the violation (

e.g.

, the gratuity offered or intended) to obtain a contract or favorable treatment under a contract.

(4) The person reporting the violation and witnesses (if any) shall be requested to sign and date the information certifying that the information furnished is true and correct.

(b) The contracting officer shall submit the report to the COCO (unless the alleged violation was directly reported to the COCO) and the Head of the Contracting Activity (HCA) for further action. The COCO and HCA will determine, with the advice of OE legal counsel, whether the case warrants submission to the OIG, or other investigatory organization.

3003.204

Treatment of violations.

(a) The HCA is the individual to determine whether a Gratuities clause violation has occurred. If the HCA has been personally and substantially involved in the specific procurement, the advice of Government legal counsel should be sought to determine whether an alternate decision maker should be designated.

(b) The COCO shall ensure that the hearing procedures required by (FAR) 48 CFR 3.204(b) are afforded to the contractor. Government legal counsel shall be consulted regarding the appropriateness of the hearing procedures that are established.

(c) If the HCA determines that the alleged gratuities violation occurred during the “conduct of an agency procurement” the COCO shall consult with Government legal counsel regarding the approach for appropriate processing of either the Procurement Integrity Act violation or the Gratuities violation.

Subpart 3003.3—Reports Of Suspected Antitrust Violations

3003.301

General.

(b) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for suspected antitrust violations, except reports of suspected antitrust violations shall be coordinated with legal counsel for referral to the Department of Justice, if deemed appropriate.

Subpart 3003.4—Contingent Fees

3003.405

Misrepresentations or violations of the Covenant Against Contingent Fees.

(a) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for misrepresentation or violations of the covenant against contingent fees.

(b)(4) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for misrepresentation or violations of the covenant against contingent fees, except reports of misrepresentation or violations of the covenant against contingent fees shall be coordinated with legal counsel for referral to the Department of Justice, if deemed appropriate.

Subpart 3003.5—Other Improper Business Practices

3003.502

Subcontractor kickbacks.

3003.502-2

Subcontractor kickbacks.

(g) The DHS OIG shall receive the prime contractor or subcontractors written report.

Subpart 3003.9—Whistleblower Protections for Contractor Employees

3003.901

Definitions.

Authorized official of an agency

means the Department of Homeland Security's CPO.

PART 3004—ADMINISTRATIVE MATTERS

Subpart 3004.1—Contract Execution

Sec.

3004.103

Contract clause.

Subpart 3004.4—Contract Clause

3004.470-4

Contract clause.

Subpart 3004.8—Government Contract Files

3004.804

Closeout of contract files.

3004.804-1

Closeout by the office administering the contract.

3004.804-5

Procedures for closing out contract files.

3004.804-570

Supporting closeout documents.

Subpart 3004.1—Contract Execution

3004.103

Contract clause.

Insert the clause at (FAR) 48 CFR 52.204-1, Approval of Contract, in each solicitation where approval to award the resulting contract is required above the contracting officer level.

Subpart 3004.4—Contract Clause

3004.470-4

Contract clause.

The contracting officer shall insert a clause substantially the same as the clause at (HSAR) 48 CFR 3052.204-70, Security Requirements for Unclassified Information Technology Resources, in solicitations and contracts which require submission of an IT Security Plan.

Subpart 3004.8—Government Contract Files

3004.804

Closeout of contract files.

3004.804-1

Closeout by the office administering the contract.

(b) The quick closeout procedures under (FAR) 48 CFR 42.708 may be used for the settlement of indirect costs under contracts when the estimated amount (excluding any fixed fee) of the contract is $3 million or less if determined appropriate by the contracting officer.

3004.804-5

Procedures for closing out contract files.

3004.804-570

Supporting closeout documents.

(a) When applicable and prior to contract closure, the contracting officer shall obtain the listed DHS and Department of Defense (DOD) forms from the contractor for closeout.

(1) DHS Form 0700-03, Contractor's Release (

e.g.

, see (FAR) 48 CFR 52.216-7);

(2) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates, Credits and Other Amounts (

e.g.

, see (FAR) 48 CFR 52.216-7);

(3) DHS Form 0700-01, Cumulative Claim and Reconciliation Statement (

e.g.

, see (FAR) 48 CFR 4.804-5(a)(13); and

(4) DD Form 882, Report of Inventions and Subcontracts (

e.g.

, see (FAR) 48 CFR 52.227-14).

(b) The forms listed in this section (see (HSAR) 48 CFR part 3053) are used primarily for the closeout of cost-reimbursement, time-and-materials, and labor-hour contracts. The forms may also be used for closeout of other contract types to protect the Government's interest.

PART 3005—PUBLICIZING CONTRACT ACTIONS

Subpart 3005.4—Release of Information

Sec.

3005.402

General public.

Subpart 3005.90—Publicizing Contract Actions for Personal Services Contracting

3005.9000

Applicability (USCG).

Subpart 3005.4—Release of Information

3005.402

General public.

Requests for other specific records information shall be processed according to the DHS Freedom of Information Act rules and regulations (HSAR) 48 CFR 3024.203.

Subpart 3005.90—Publicizing Contract Actions for Personal Services Contracting.

3005.9000

Applicability (USCG).

Contracts awarded by the U.S. Coast Guard using the procedures in (HSAR) 48 CFR 3037.104-91 are expressly authorized under section 1091 of Title 10 U.S.C. as amended by Public Law 107-296, for the Coast Guard and are exempt from the requirements of (FAR) 48 CFR part 5.

PART 3006—COMPETITION REQUIREMENTS

Subpart 3006.2—Full and Open Competition After Exclusion of Sources

Sec.

3006.202

Establishing or maintaining alternative sources.

Subpart 3006.3—Other Than Full and Open Competition

3006.302

Circumstances permitting other than full and open competition.

3006.302-7

Public interest.

Subpart 3006.5—Competition Advocates

3006.501

Requirement.

3006.502

Duties and responsibilities.

Subpart 3006.90—Competition Requirements for Personal Services Contracting

3006.9000

Applicability (USCG).

Subpart 3006.2—Full and Open Competition After Exclusion of Sources

3006.202

Establishing or maintaining alternative sources.

(b)(1) The HCA is delegated authority to approve a D&F in support of a contract action award under the authority of (FAR) 48 CFR 6.202(a). Submit D&F in the format per (HSAR) 48 CFR 3001.704.

Subpart 3006.3—Other Than Full and Open Competition

3006.302

Circumstances permitting other than full and open competition.

3006.302-7

Public interest.

(c)(1)(ii) Requests shall be prepared in writing by the contracting officer, using the format found in (HSAR) 48 CFR 3001.704, and submitted through the HCA to the CPO for review and transmittal to the Secretary for approval.

Subpart 3006.5—Competition Advocates

3006.501

Requirement.

The DHS Senior Competition Advocate (SCA) is located in the Office of the Chief Procurement Officer (OCPO).

3006.502

Duties and responsibilities.

(a) OE competition advocates will submit an annual report to the Departmental Advocate for Competition.

Subpart 3006.90—Competition Requirements For Personal Services Contracting

3006.9000

Applicability (USCG).

Contracts awarded by the U.S. Coast Guard using the procedures in (HSAR) 48 CFR 3037.104-91 are expressly authorized under Section 1091 of Title 10 U.S.C. as amended, for the Coast Guard and are exempt from the competition requirements of (FAR) 48 CFR part 6.

PART 3007—ACQUISITION PLANNING [RESERVED]

PART 3008—REQUIRED SOURCES OF SUPPLIES AND SERVICES [RESERVED]

PART 3009—CONTRACTOR QUALIFICATIONS

Subpart 3009.1—Responsible Prospective Contractors

Sec.

3009.104-70

Prohibition on contracts with corporate expatriates.

3009.104-71

General.

3009.104-72

Definitions.

3009.104-73

Special rules.

3009.104-74

Waiver.

3009.104-75

Clause.

Subpart 3009.4—Debarment, Suspension, and Ineligibility

3009.470

Reserve Officer Training Corps and military recruiting on campus.

3009.470-1

Definition.

3009.470-2

Policy.

3009.470-3

Procedures.

3009.470-4

Contract clause.

Subpart 3009.5—Organizational and Consultant Conflicts of Interest

3009.507

Solicitation provisions.

Subpart 3009.1—Responsible Prospective Contractors

3009.104-70

Prohibition on contracts with corporate expatriates.

3009.104-71

General.

DHS may not enter into any contract with a foreign incorporated entity, which is treated as an inverted domestic corporation under subsection (b) of section 835 of the Homeland Security Act, Pub. L. 107-296.

3009.104-72

Definitions.

As used in this subpart—

Expanded Affiliated Group

means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting ‘more than 50 percent’ for ‘at least 80 percent’ each place it appears.

Foreign Incorporated Entity

means any entity which is, or but for subsection (b) of section 835 of the Homeland Security Act, Pub. L. 107-296, would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.

Inverted Domestic Corporation.

A foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—

(1) The entity completes after the date of enactment of this Act, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;

(2) After the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—

(i) In the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or

(ii) In the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and

(3) The expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.

Person, domestic, and foreign

have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.

3009.104-73

Special rules.

The following special rules shall apply when determining whether a foreign incorporated entity should be treated as an inverted domestic corporation.

(a)

Certain stock disregarded.

For the purpose of treating a foreign incorporated entity as an inverted domestic corporation these shall not be taken into account in determining ownership:

(1) Stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or

(2) Stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of section 835 of the Homeland Security Act (the Act), Pub. L. 107-296.

(b)

Plan deemed in certain cases.

If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is after the date of enactment of this Act and which is 2 years before the ownership requirements of subsection (b)(2) of the Act are met, such actions shall be treated as pursuant to a plan.

(c)

Certain transfers disregarded.

The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.

(d)

Special rule for related partnerships.

For purposes of applying subsection (b) to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as a partnership.

(e)

Treatment of certain rights.

(1) Certain rights shall be treated as stocks to the extent necessary to reflect the present value of all equitable interests incident to the transaction, as follows:

(i) Warrants;

(ii) Options;

(iii) Contracts to acquire stock;

(iv) Convertible debt instruments;

(v) Others similar interests.

(2) Rights labeled as stocks shall not be treated as stocks whenever it is deemed appropriate to do so to reflect the present value of the transaction or to disregard transactions whose recognition would defeat the purpose of section 835 of the Act.

3009.104-74

Waiver.

(a) The Secretary shall waive subsection (a) of section 835 of Pub. L. 107-296 with respect to any specific contract if the Secretary determines that the waiver is required in the interest of homeland security, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.

(b) Contractors shall submit waiver requests to the CPO. If a waiver is granted, a copy of the approved waiver shall be attached with the bid or proposal.

3009.104-75

Clause.

Insert the provision (HSAR) 48 CFR 3052.209-70, Prohibition on Contracts with Corporate Expatriates, in all solicitations and contracts.

Subpart 3009.4—Debarment, Suspension, and Ineligibility

3009.470

Reserve Officer Training Corps and military recruiting on campus.

3009.470-1

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.

3009.470-2

Policy.

(a) Except as provided in paragraph (b) of this subsection, 10 U.S.C. 983 prohibits the Department of Homeland Security 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 Homeland Security 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 (and each subelement of that institution) has ceased the policy or practice described in paragraph (a) of this subsection; or

(2) The institution involved has a long-standing policy of pacifism based on historical religious affiliation.

3009.470-3

Procedures.

Whenever the Secretary of Defense determines that an institution of higher education (including any subelement of such institution) is ineligible and the provisions of 10 U.S.C. 983 apply:

(a) The Secretary of Defense will list the institution on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration (also see (FAR) 48 CFR 9.404 and 32 CFR part 216); and

(b) The Department of Homeland Security—

(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.

3009.470-4

Contract clause.

Insert the clause at (HSAR) 48 CFR 3052.3009-71, Reserve Officer Training Corps and Military Recruiting on Campus, in all solicitations and

contracts with institutions of higher education.

Subpart 3009.5—Organizational and Consultant Conflicts of Interest

3009.507

Solicitation provisions.

The contracting officer may insert the provision at (HSAR) 48 CFR 3052.209-72, “Disclosure of Conflicts of Interest” in all solicitations for negotiated acquisitions, and when simplified acquisitions procedures in (FAR) 48 CFR Part 13, are not used. The contracting officer shall ensure the conditions enumerated in (FAR) 48 CFR 9.507-2 warrant inclusion.

PART 3010—MARKET RESEARCH [RESERVED]

PART 3011—DESCRIBING AGENCY NEEDS

Subpart 3011.1—Selecting and Developing Requirements Documents

Sec.

3011.103

Market acceptance.

Subpart 3011.2—Using and Maintaining Requirements

3011.204-70

Solicitation provisions and contract clauses.

3011.204-90

Solicitation provisions and contract clause (USCG).

Subpart 3011.5—Liquidated Damages

3011.501

Policy.

Subpart 3011.6—Priorities and Allocations

3011.602

General.

Subpart 3011.1—Selecting and Developing Requirements Documents

3011.103

Market acceptance.

(a) Contracting officers may act on behalf of the head of the agency in this subpart only. Contracting officers may, under appropriate circumstances, require offerors to make the required demonstrations.

Subpart 3011.2—Using and Maintaining Requirements Documents

3011.204-70

Solicitation provisions and contract clauses.

The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.211-70, Index for Specifications, when an index or table of contents may be furnished with the specification.

3011.204-90

Solicitation provision and contract clause (USCG).

(a) For U.S. Coast Guard contracts, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, (also see (HSAR) 48 CFR 3013.302-70) when the bar coding of supplies is necessary.

(b) See (HSAR) 48 CFR 3013.302-590 for a provision which is required when the USCG clause at HSAR 3052.211-90, Bar Coding Requirement, is used with simplified acquisition procedures.

Subpart 3011.5—Liquidated Damages

3011.501

Policy.

(d) The HCA may reduce or waive the amount of liquidated damages assessed under a contract, if the Commissioner, Financial Management Service, or designee approves.

Subpart 3011.6—Priorities and Allocations

3011.602

General.

(c) The following DHS OEs may assign priority ratings on contracts and orders placed with contractors to acquire products, materials, and services under the Defense Priorities and Allocations System (DPAS) regulations (15 CFR part 700):

(1) The U.S. Coast Guard in support of certified national defense related programs; and

(2) The Federal Emergency Management Agency in support of emergency preparedness activities.

PART 3012—ACQUISITION OF COMMERCIAL ITEMS [RESERVED]

PART 3013—SIMPLIFIED ACQUSITION PROCEDURES

Subpart 3013.1—Procedures

Sec.

3013.106

Soliciting competition, evaluation of quotations or offers, award and documentation.

3013.106-190

Soliciting competition (USCG).

Subpart 3013.3—Simplified Acquisition Methods

3013.302

Purchase orders.

3013.302-590

Clauses (USCG).

Subpart 3013.70—Special Streamlined Acquisition Authority

3013.7000

General.

3013.7001

Delegations.

3013.7002

Reporting requirements.

3013.7003

Micro-purchase authority.

3013.7004

Simplified acquisition authority.

3013.7005

Test program for certain commercial items.

Subpart 3013.1—Procedures

3013.106

Soliciting competition, evaluation of quotations or offers, award and documentation.

3013.106-190

Soliciting competition (USCG).

For the U.S. Coast Guard, the contracting officer shall insert the USCG provision at (HSAR) 48 CFR 3052.213-90, Evaluation Factor for Coast Guard Performance of Bar Coding Requirement, in requests for quotations when the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, is used with simplified acquisition procedures.

Subpart 3013.3—Simplified Acquisition Methods

3013.302

Purchase orders.

3013.302-590

Clauses (USCG).

For the U.S. Coast Guard, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, in requests for quotations and purchase orders issued by the Inventory Control Points when bar coding of supplies is necessary.

Subpart 3013.70—Special Streamlined Acquisition Authority

3013.7000

General.

(a) The Secretary may use special streamlined acquisition authority set forth in Public Law 107-296, section 833, with respect to any procurement made during the period beginning on November 25, 2002 and ending September 30, 2007 where if the Secretary determines in writing the mission of the Department (described in Pub. L. 107-296, section 101) would be seriously impaired without the use of such authorities.

(b) The Secretary may deem any item or service to be a commercial item for the purpose of federal procurement laws for procurements described in (HSAR) 48 CFR 3013.7005.

3013.7001

Delegations.

The Secretary may delegate this authority to an officer of the Department who is appointed by the President with the advice and consent of the Senate. Delegations of this authority are discussed in HSAM 3013.

3013.7002

Reporting requirements.

(a) The Secretary shall submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate—

(1) Notification of such determination; and

(2) The justification for such determination.

(b) This report shall be submitted no later than seven days after the date of any determination. Reporting requirements and procedures are discussed in HSAM 3013.

3013.7003

Micro-purchase authority.

(a) When the streamlined acquisition authority is exercised, the micro-purchase threshold is raised to $7,500.

(b) The authority in this section may be exercised only by individuals designated by the Secretary. The number of employees shall be—

(1) Fewer than the number of employees of the Department that are authorized to make purchases without obtaining competitive quotations.

(2) Sufficient to ensure the geographic dispersal of the availability of the use of the procurement authority under such paragraph at locations reasonably considered to be potential terrorist targets; and

(3) Sufficiently limited to allow for careful monitoring of employees designated under each paragraph.

(c) Procurements made under this authority shall be subject to review by a designated supervisor on not less than a monthly basis. The supervisor responsible for the review shall be responsible for no more than seven employees making procurements under this authority.

3013.7004

Simplified acquisition authority.

When the streamlined acquisition authority is exercised, the simplified acquisition threshold shall be:

(a) $200,000 in the case of a contract to be awarded and performed, or purchase to be made, within the United States; and

(b) $300,000 in the case of a contract to be awarded and performed, or purchase to be made, outside of the United States.

3013.7005

Test program for certain commercial items.

When the streamlined authority is exercised, the $5,000,000 limitation provided in (FAR) 48 CFR subpart 13.5 is increased to $7,500,000.

PART 3014—SEALED BIDDING [RESERVED]

PART 3015—CONTRACTING BY NEGOTIATION

Subpart 3015.2—Solicitation and Receipt of Proposals and Information

Sec.

3015.204-3

Contract clauses.

3015.207-70

Handling proposals and information.

Subpart 3015.4—Contract Pricing

3015.404-470

Payment of profit or fee.

Subpart 3015.6—Unsolicited Proposals

3015.602

Policy.

3015.603

General.

3015.604

Agency points of contact.

3015.606

Agency procedures.

3015.606-1

Receipt and initial review.

3015.606-2

Evaluation.

Subpart 3015.2—Solicitation and Receipt of Proposals and Information

3015.204-3

Contract clauses.

The contracting officer shall insert clause (HSAR) 48 CFR 3052.215-70, Key Personnel or Facilities, in solicitations and contracts when the selection for award is substantially based on the offeror's possession of special capabilities regarding personnel or facilities.

3015.207-70

Handling proposals and information.

(b) Proposals and information may be released outside the Government for evaluation and similar purposes if qualified personnel are not available to thoroughly evaluate or analyze proposals or information. The contracting officer shall document the file in such cases.

Subpart 3015.4—Contract Pricing

3015.404-470

Payment of profit or fee.

The contracting officer shall not pay profit or fee on undefinitized contracts or undefinitized contract modifications. Any profit or fee earned shall be paid after the contract or modification is definitized.

Subpart 3015.6—Unsolicited Proposals

3015.602

Policy.

The Department of Homeland Security (DHS) encourages new and innovative proposals and ideas that will sustain or enhance the DHS mission, which is stipulated in the Homeland Security Act of 2002, Pub. L. 107-296.

3015.603

General.

(a) Costs associated with the time and effort to prepare a proposal are solely the responsibility of and assumed by the offeror that is submitting the proposal.

3015.604

Agency points of contact.

(a) The DHS does not have a central clearinghouse for distributing information or assistance regarding unsolicited proposals. Each HCA is responsible for disseminating the information required at (FAR) 48 CFR 15.604(a). General information concerning DHS's scope of responsibilities and functions is available at

http://www.dhs.gov/dhspublic/.

3015.606

Agency procedures.

(a) The agency authority to establish procedures for receiving, reviewing and evaluating, and timely disposing of unsolicited proposals, consistent with the requirements of (FAR) 48 CFR 15.6 and this subpart, is delegated to each HCA.

(b) The agency authority to establish points of contact (see (FAR) 48 CFR 15.604) to coordinate the receipt and handling of unsolicited proposals is delegated to each HCA. Contracting offices are designated as the receiving point for unsolicited proposals. Persons within DHS (

e.g.

, technical personnel) who receive proposals shall forward them to their cognizant contracting office.

3015.606-1

Receipt and initial review.

(a) The agency contact point shall make an initial review determination within seven calendar days after receiving a proposal.

(b) If the proposal meets the requirements at (FAR) 48 CFR 15.606-1(a), the agency contact point shall acknowledge receipt within three calendar days after making the initial review determination and advise the offeror of the general timeframe for completing the evaluation.

(c) If the proposal does not meet the requirements of (FAR) 48 CFR 15.606-1(a), the agency contact point shall return the proposal within three calendar days after making the determination. The offeror shall be informed, in writing, of the reasons for returning the proposal.

3015.606-2

Evaluation.

(a) Comprehensive evaluations should be completed within sixty calendar days after making the initial review determination. If additional time is needed, then the agency contact point shall advise the offeror accordingly and provide a new evaluation completion date. The evaluating office shall neither reproduce nor disseminate the proposal to other offices without the consent of the contracting office from which the proposal was received for evaluation. If the evaluating office requires additional information from the offeror, the evaluator shall convey this request to the responsible contracting office. The evaluator shall not directly contact the proposal originator.

(b) If the evaluators recommend accepting the proposal, the responsible contracting officer shall ensure compliance with all of the requirements of (FAR) 48 CFR 15.607.

PART 3016—TYPES OF CONTRACTS

Subpart 3016.2—Fixed-Price Contracts

Sec.

3016.203

Fixed-price contracts with economic price adjustment.

3016.203-4

Contract clauses.

3016.203-470

Solicitation provision.

Subpart 3016.4—Incentive Contracts

3016.406

Contract clauses.

Subpart 3016.5—Indefinite-Delivery Contracts

3016.505

Ordering.

Subpart 3016.6—Time-and-Materials, Labor-Hour, and Letter Contracts

3016.603

Letter contracts.

3016.603-4

Contract clauses.

Subpart 3016.2—Fixed-Price Contracts

3016.203

Fixed price contracts with economic price adjustments.

3016.203-4

Contract clauses.

(d)(2) Any clause using this method shall be prepared and approved by the contracting officer.

3016.203-470

Solicitation provision.

The contracting officer shall insert a provision substantially the same as (HSAR) 48 CFR 3052.216-70, Evaluation of Offers Subject to an Economic Price Adjustment Clause, in solicitations containing an economic price adjustment clause.

Subpart 3016.4—Incentive Contracts

3016.406

Contract clauses.

(e)(1)(i) The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-71, Determination of Award Fee, in solicitations and contracts that includes an award fee.

(ii) The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-72, Performance Evaluation Plan, in all solicitations and contracts that includes an award fee.

(iii) The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-73, Distribution of Award Fee, in all solicitations and contracts that includes an award fee.

Subpart 3016.5—Indefinite-Delivery Contracts

3016.505

Ordering.

(b)(5) The OE Competition Advocate is designated as the OE Task and Delivery Order Ombudsman, unless otherwise provided in OE procedures.

(i) If any corrective action is needed after reviewing complaints from contractors on task and delivery order contracts, the OE Ombudsman shall provide a written determination of such action to the contracting officer.

(ii) Issues that cannot be resolved within the OE, shall be forwarded to the DHS Task and Delivery Order Ombudsman for review and resolution.

Subpart 3016.6—Time-and-Materials, Labor-Hour, and Letter Contracts

3016.603

Letter contracts.

3016.603-4

Contract clauses.

The contracting officer shall insert a clause substantially the same as (HSAR) 48 CFR 3052.216-74, Settlement of Letter Contract, in all definitized letter contracts.

PART 3017—SPECIAL CONTRACTING METHODS

Subpart 3017.2—Options

Sec.

3017.202

Use of options.

Subpart 3017.4—Leader Company Contracting

3017.402

Limitations.

Subpart 3017.70—Energy Savings Performance Contracts

3017.7000

Policy.

Subpart 3017.90—Fixed Price Contracts for Vessel Repair, Alteration or Conversion

3017.9000

Clauses (USCG).

Subpart 3017.2—Options.

3017.202

Use of options.

(a) Contracting officers shall not use unpriced options.

Subpart 3017.4—Leader Company Contracting

3017.402

Limitations.

(a)(4) Submit requests per (HSAR) 48 CFR 3001.7000(a).

Subpart 3017.70—Energy Savings Performance Contracts

3017.7000

Policy.

DHS and its OEs may enter into Energy Savings Performance Contracts under 42 U.S.C. 8287, as amended subject to the requirements of 10 CFR part 436. Proposed contracts under this section shall be coordinated with the CPO.

Subpart 3017.90—Fixed Price Contracts for Vessel Repair, Alteration or Conversion

3017.9000

Clauses (USCG).

For the U.S. Coast Guard, the following clauses are to be used in specific solicitations and contracts:

(a) The clauses in (HSAR) 48 CFR 3052.217-90 through (HSAR) 48 CFR 3052.217-93 and (HSAR) 48 CFR 3052.217-95 through (HSAR) 48 CFR 3052.217-99 shall be included and clause (HSAR) 48 CFR 3052.217-94 may be included in sealed bid fixed-price solicitations and contracts for vessel repair, alteration, or conversion which are to be performed within the United States, its possessions, or Puerto Rico. The contracting officer may, in whole or in part (such as after incidents), increase the dollar amounts in the clause at (HSAR) 48 CFR 3052.217-95(b)(6) and (c)(1) consistent with contract size, inflation, and other circumstances.

(b) Unless inappropriate, the clauses in (HSAR) 48 CFR 3052.217-90 through (HSAR) 48 CFR 3052.217-93 and (HSAR) 48 CFR 3052.217-95 through (HSAR) 48 CFR 3052.217-99 should be included and (HSAR) 48 CFR 3052.217-94 may be included in negotiated solicitations and contracts to be performed outside the United States. The contracting officer may, in whole or in part (such as after incidents), increase the dollar amounts in the clause at (HSAR) 48 CFR 3052.217-95(b)(6) and (c)(1) consistent with contract size, inflation, and other circumstances.

(c) The clause at (HSAR) 48 CFR 3052.217-100, Guarantee, shall be used where general guarantee provisions are deemed desirable by the contracting officer.

(1) When inspection and acceptance tests will afford full protection to the Government in ascertaining conformance to specifications and the absence of defects and deficiencies, no guarantee clause for that purpose shall be included in the contract.

(2) The customary guarantee period, to be inserted in the first sentence of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee, is 60 days. However, in certain instances, the contracting officer may desire to include a clause in a contract for a guarantee period of more than 60 days. In such instances:

(i) Where, after full inquiry, it has been determined that such longer guarantee period will not involve increased costs, a longer guarantee period may be substituted by the contracting officer for the usual 60 days; or

(ii) Where the full inquiry discloses that such longer guarantee period will involve, or is reasonably expected to involve, increased costs, such facts and the reasons for the need for such longer period shall be set forth in letter form to the COCO, requesting approval for use of guarantee period in excess of 60 days. Upon approval, the longer period may be inserted by the contracting officer in the first sentence of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee.

PART 3018—[RESERVED]

PART 3019—SMALL BUSINESS PROGRAMS

Subpart 3019.2—Policies

Sec.

3019.201

General policy.

Subpart 3019.7—The Small Business Subcontracting Program

3019.705

Responsibilities of the contracting officer under the subcontracting assistance program.

3019.705-1

General support for the program.

3019.708

Contract clauses.

3019.708-70

DHS solicitation and contract clauses.

Subpart 3019.2—Policies

3019.201

General policy.

(d) The Director, Office of Small and Disadvantaged Business Utilization is responsible for the implementation and execution of the small and small disadvantaged business programs required by the Small Business Act.

Subpart 3019.7—The Small Business Subcontracting Program

3019.705

Responsibilities for the contracting officer under the subcontracting program.

3019.705-1

General support for the program.

Contracting officers will consider making the submission of a subcontracting plan part of the evaluation criteria. Contracting officers may also consider an offerors past performance in previous subcontracting plan goals and efforts to achieve those goals.

3019.708

Contract clauses.

3019.708-70

DHS solicitation and contract clauses.

(a) The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.219-70, Small Business and Small Disadvantaged Business Subcontracting Reporting, in solicitations and contracts containing the clause at (FAR) 48 CFR 52.219-9.

(b) The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.219-71, DHS Mentor-Protégé Program in all solicitations that anticipate the need for a subcontracting plan.

(c) The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.219-72, Evaluation of Prime Contractor Participation in the Mentor-Protégé Program, in all solicitations containing (HSAR) 48 CFR 3052.219-71, Mentor-Protégé Program and (FAR) 48 CFR 52.219-9 Small Business Subcontracting Plan.

PART 3020—[RESERVED]

PART 3021—[RESERVED]

PART 3022—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 3022.1—Basic Labor Policies

Sec.

3022.101

Labor relations.

3022.101-70

Admittance of union representatives to DHS installations.

3022.101-71

Contract clauses.

Subpart 3022.4—Labor Standards for Contracts Involving Construction

3022.406

Administration and enforcement.

3022.406-9

Withholding from or suspension of contract payments.

Subpart 3022.90— Local Hire (USCG)

3022.9000

Policy (USCG).

3022.9001

Contract clause (USCG).

Subpart 3022.1—Basic Labor Policies

3022.101

Labor relations.

3022.101-70

Admittance of union representatives to DHS installations.

(a) It is the policy of DHS to admit labor union representatives of contractor employees to DHS installations to visit work sites and transact labor union business with contractors, their employees, or union stewards pursuant to existing union collective bargaining agreements. Their presence shall not interfere with the contractor's work progress under a DHS contract nor violate safety or security regulations that may be applicable to persons visiting the installation. Union representatives will not be permitted to conduct meetings, collect union dues, or make speeches concerning union matters while visiting a work site.

(b) Whenever a union representative is denied entry to a work site, the person denying entry shall make a written report to the DHS labor coordinator and OE labor advisor, if any, within two working days after the request for entry is denied. The report shall include the reason(s) for the denial, the name of the representative denied entry, the union affiliation and number, and the name and title of the person that denied the entry.

3022.101-71

Contract clauses.

(a) The contracting officer, may, when applicable, insert the clause at (HSAR) 48 CFR 3052.222-70, Strikes or Picketing Affecting Timely Completion of the Contract Work, in solicitations and contracts.

(b) The contracting officer may, when applicable, insert the clause at (HSAR) 48 CFR 3052.222-71, Strikes or Picketing Affecting Access to a DHS Facility, in solicitations and contracts.

Subpart 3022.4—Labor Standards for Contracts Involving Construction

3022.406

Administration and enforcement.

3022.406-9

Withholding from or suspension of contract payments.

(c) Disposition of contract payments withheld or suspended.

(1) Forwarding wage underpayments to the Comptroller General. The contracting officer shall ensure that a completed DHS Form 0700-04, Employee Claim for Wage Restitution, is obtained from each employee claiming restitution under the contract. The Comptroller General (Claims Division) shall receive this form with a completed SF 1093, Schedule of Withholding Under the Davis-Bacon Act and/or the Contract Work Hours and Safety Standards Act, before payment can be made to the employee.

Subpart 3022.90—Local Hire (USCG)

3022.9000

Policy (USCG).

As required by 14 U.S.C. 666, the U.S. Coast Guard shall include a provision for local hire in each contract for construction or services to be performed in whole or in part in a State that has an unemployment rate in excess of the national average rate of unemployment as determined by the Secretary of Labor.

3022.9001

Contract clause (USCG).

For the U.S. Coast Guard, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.222-90, Local Hire Provision, in all solicitations and contracts as stated in (HSAR) 48 CFR 3022.9000.

PART 3023—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 3023.3—Hazardous Material Identification and Material Safety Data

Sec.

3023.303

Contract clause.

Subpart 3023.5—Drug-Free Workplace

3023.501

Applicability.

3023.506

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

Subpart 3023.10—Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements

3023.1002

Applicability.

Subpart 3023.90—Safety Requirements for USCG Contracts

3023.9000

Contract Clause (USCG).

Subpart 3023.3—Hazardous Material Identification and Material Safety Data

3023.303

Contract clause.

The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.223-70, Removal or Disposal of Hazardous Substances—Applicable Licenses and Permits, in solicitations and contracts involving the removal or disposal of hazardous waste material.

Subpart 3023.5—Drug-Free Workplace

3023.501

Applicability.

(d) The head of the law enforcement organizational element may determine that (FAR) 48 CFR 23.501 does not apply. This authority may not be redelegated.

3023.506

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

(e) Submit requests per (HSAR) 48 CFR 3001.7000(b).

Subpart 3023.10—Federal Compliance With Right-to-Know Laws and Pollution Requirements

3023.1002

Applicability.

DHS MD 5110, Environmental Compliance, provides guidance and direction for compliance with environmental laws.

Subpart 3023.90—Safety Requirements for USCG Contracts

3023.9000

Contract clause (USCG).

For the U.S. Coast Guard, where all or part of a contract will be performed on Government-owned or leased property, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.223-90, Accident and Fire Reporting.

PART 3024—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Subpart 3024.1—Protection of Individual Privacy

Sec.

3024.102-70

General.

Subpart 3024.2—Freedom of Information Act

3024.203

Policy.

Subpart 3024.1—Protection of Individual Privacy

3024.102-70

General.

Procedures for implementing the Privacy Act of 1974 are contained in Departmental regulations under 6 CFR part 5, subpart B, Privacy Act.

Subpart 3024.2—Freedom of Information Act

3024.203

Policy.

(a) The Department's implementation of the Freedom of Information Act is codified in regulations 6 CFR part 5, subpart B, FOIA. Information request concerning awards beyond those routinely handled by contracting officers (

e.g.

, identification of successful offerors, public announcements, debriefings, surety notices under HSAR 3028.106-6) shall be submitted to the FOIA Office of the Organizational Element making the award. The FOIA office for the DHS Office of Operations only, is Departmental Disclosure Officer (DDO), DHS, Washington, DC 20528 or

foia@dhs.gov.

(b)

See

(FAR) 48 CFR 15.207(b) on safeguarding proposals.

PART 3025—FOREIGN ACQUISITION—[RESERVED]

PART 3026—OTHER SOCIOECONOMIC PROGRAMS—[RESERVED]

PART 3027—PATENTS, DATA, AND COPYRIGHTS

Subpart 3027.2—Patents

Sec.

3027.205

Adjustment of royalties.

3027.208

Use of patented technology under the North American Free Trade Agreement.

Subpart 3027.3—Patent Rights Under Government Contracts

3027.304-1

General.

3027.304-5

Appeals.

3027.305-4

Administration of Patent Rights Clause.

3027.306

Licensing background patent rights to third parties.

Subpart 3027.4—Rights in Data and Copyrights

3027.404

Basic Rights in Data clause.

3027.409

Solicitation provisions and contract clauses.

Subpart 3027.2—Patents

3027.205

Adjustment of royalties.

(a) Reports shall be made to OE legal counsel. Contracting Officers shall coordinate actions with the COCO and HCA.

3027.208

Use of patented technology under the North American Free Trade Agreements.

(f) Contracting officers shall ensure compliance.

Subpart 3027.3—Patent Rights under Government Contracts

3027.304-1

General.

Interim and final invention reports and notification of all subcontracts for experimental, developmental, or research work (FAR) 48 CFR 27.304-1(e)(2)(ii) may be submitted on DD Form 882, Report of Inventions and Subcontracts.

3027.304-5

Appeals.

(a) Contracting officers are authorized to take the specified actions.

(b) Appeals shall be made to the CPO.

3027.305

Administration of Patent Rights Clauses.

3027.305-4

Conveyance of invention rights acquired by the Government.

The contracting officer shall ensure that solicitations and contracts which include a patent rights clause include a means for the contractor to report inventions made in the course of contract performance and at contract completion. This requirement may be fulfilled by requiring the contractor to submit a DD Form 882, Report of Inventions and Subcontract.

3027.306

Licensing background patent rights to third parties.

(b) The CPO shall make the required determinations and notifications under this subpart.

Subpart 3027.4—Rights in Data and Copyrights

3027.404

Basic rights in data clause.

(f)(1)(iii) The DHS will use Alternate IV of the (FAR) 48 CFR clause 52.227-14 in all contracts containing the basic clause, unless the HCA approves an exclusion. Approval at a level above the contracting officer is required for the contract to exclude items or categories of data from Alternative IV.

3027.409

Solicitation provisions and contract clauses.

Alternate IV of the (FAR) 48 CFR clause 52.227-14 shall be included in solicitations and contracts containing the basic clause unless the HCA approves an exclusion. Additional non-conflicting alternates may be used.

PART 3028—BONDS AND INSURANCE

Subpart 3028.1—Bonds and Other Financial Protections

Sec.

3028.106

Administration.

3028.106-6

Furnishing information.

3028.106-70

Execution and administration of bonds.

3028.106-490

Contract clause (USCG).

Subpart 3028.3—Insurance

3028.306

Insurance under fixed-price contracts.

3028.306-90

Contracts for lease of aircraft (USCG).

3028.307

Insurance under cost-reimbursement contracts.

3028.307-1

Group insurance plans.

3028.310

Contract clause for work on a Government installation.

3028.310-70

Contract clause.

3028.311

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

3028.311-1

Contract clause.

Subpart 3028.1—Bonds and Other Financial Protections

3028.106

Administration.

3028.106-6

Furnishing information.

(b) The contracting officer shall, upon request, furnish the name and address of the prime contractor's surety or sureties to employees, suppliers, and subcontractors having a contractual or employment relationship with prime contractors, subcontractors or suppliers. When furnishing surety information, the inquirer may also be informed that:

(1) Persons believing that they have legal remedies under the Miller Act are cautioned to consult their own legal advisor regarding the proper steps to take to obtain remedies.

(2) On construction contracts exceeding $2,000, if the contracting officer is informed (through routine compliance checking, a complaint, or a request for information) that a laborer, mechanic, apprentice, trainee, watchman, or guard employed by the contractor or subcontractor at any tier may have been paid wages less than those required by the applicable labor standards provisions of the contract, the contracting officer shall promptly initiate an investigation in accordance with (FAR) 48 CFR Subpart 22.4, irrespective of the employee's rights under the Miller Act. When an employee's request for information is involved, the contracting officer shall inform the inquirer that such investigation will be made. Such investigation is required pursuant to the provisions of the Davis-Bacon Act, Contract Work Hours and Safety Standards Act, and Copeland (Anti-Kickback) Act for assuring proper payment to such employees.

(c) When furnishing a copy of a payment bond and contract in accordance with (FAR) 48 CFR 28.106-6(c), the requirement for a copy of the contract may be satisfied by furnishing a machine-duplicate copy of the contractor's first pages which show the contract number and date, the contractor's name and signature, the contracting officer's signature, and the description of the contract work. The contracting officer furnishing the copies shall place the statement “Certified to be a true and correct copy” followed by a signature, title and name of the OE. The fee for furnishing the requested certified copies shall be determined according to the DHS Freedom of Information Act regulation, 6 CFR part 5, subpart B, FOIA.

3028.106-70

Execution and administration of bonds.

(a) The contracting officer shall notify the surety within 30 days, of the contractor's failure to perform in accordance with the terms of the contract.

(b) When a partnership is a principal on a bond, the names of all the members of the firm shall be listed in the bond following the name of the firm, and the phrase “a partnership composed of.” If a principal is a corporation, the state of incorporation shall also appear on the bond.

(c) Performance or payment bond(s) other than an annual bond shall not predate the contract to which it pertains.

(d) Bonds may be filed with the original contract to which they apply, or all bonds can be separately maintained and reviewed quarterly for validity. If separately maintained, each contract file shall cross-reference the applicable bonds.

3028.106-490

Contract clause (USCG).

For the U.S. Coast Guard, the contracting officer shall insert the USCG clause at (HSAR) 48 CFR 3052.228-90. Notification of Miller Act Payment Bond Protection, in solicitation and contracts, and shall require its first-tier subcontractors to insert the clause in all of their subcontracts, when payment bonds are required.

Subpart 3028.3—Insurance

3028.306

Insurance under fixed-price contracts.

3028.306-90

Contracts for lease of aircraft (USCG).

(a) For the U.S. Coast Guard, the contracting officer shall insert the clauses at (HSAR) 48 CFR 3052.228-91 through 3052.228-93, unless otherwise indicated by the specific instructions for their use, in any contract for the lease of aircraft (including aircraft used in out-service flight training).

(b) For the U.S. Coast Guard, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.228-91, Loss of or Damage to Leased Aircraft, in any contract for the lease of aircraft, except in the following circumstances:

(1) When the hourly rental rate does not exceed $250 and the total rental cost for any single transaction is not in excess of $2,500:

(2) When the cost of hull insurance does not exceed 10 percent of the contract rate; or

(3) When the lessor's insurer does not grant a credit for uninsured hours, thereby preventing the lessor from granting the same to the Government.

(c) For the U.S. Coast Guard, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.228-92, Fair Market Value of Aircraft, when fair market value of the aircraft can be determined.

(d) 49 U.S.C. 44112, as amended, provides that no lessor of an aircraft under a

bona fide

lease of 30 days or more shall be liable by reason of his interest as lessor or title-holder of the aircraft for any injury to or death of persons, or damage to or loss of property, unless such aircraft is in the actual possession or control of such person at the time of such injury, death, damage or loss. On short-term or intermittent-use leases, however, the owner may be liable for damage caused by operation of the aircraft. It is usual for the aircraft owner to retain insurance covering this liability during the term of such lease. Such insurance can, often for little or no increase in premium, be made to cover the Government's exposure to liability as well. In order to take advantage of this coverage, the Risks and Indemnities clause at (HSAR) 48 CFR 3052.228-93 prescribed in paragraph (d)(1) of this section shall be used.

(1) For the U.S. Coast Guard, the contracting officer shall insert the clause at (HSAR) 48 CFR 3052.228-93, Risk and Indemnities, in any contract for out-service flight training or for the lease of aircraft when the Government will have exclusive use of the aircraft for a period of less than thirty days.

(2) For the U.S. Coast Guard, any contract for out-service flight training shall include a clause in the contract schedule stating substantially that the contractor's personnel shall at all times during the course of the training be in command of the aircraft and that at no time shall other personnel be permitted to take command of the aircraft.

3028.307

Insurance under cost-reimbursement contracts.

3028.307-1

Group insurance plans.

Plans shall be submitted to the contracting officer, who must obtain the advice of legal counsel.

3028.310

Contract clause for work on a Government installation.

3028.310-70

Contract clause.

Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70, “Insurance,” in all solicitations and contracts that contain the clause at (FAR) 47 CFR 52.228-5.

3028.311

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

3028.311-1

Contract clause.

Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70, “Insurance,” in all solicitations and contracts that contain the clause at (FAR) 48 CFR 52.228-7, unless waived by an official one level above the contracting officer.

PART 3029—TAXES—[RESERVED]

PART 3030—COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 3030.2—CAS Program Requirements

Sec.

3030.201

Contract requirements.

3030.201-5

Waiver.

Subpart 3030.2—CAS Program Requirements

3030.201

Contract requirements.

3030.201-5

Waiver.

(b)(1) The CPO is authorized to waive the application of the Cost Accounting Standards to individual firm fixed-price contracts for the acquisition of commercial items. This authority may not be redelegated.

(2) Submit waiver requests per (HSAR) 48 CFR 3001.7000(a), for review and transmittal by the CPO to the Cost Accounting Standard Board.

PART 3031—CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 3031.2—Contracts with Commercial Organizations

Sec.

3031.205

Selected costs.

3031.205-32

Precontract costs.

Subpart 3031.2—Contracts with Commercial Organizations

3031.205

Selected costs.

3031.205-32

Precontract costs.

(a) The decision to incur precontract costs is that of the contractor. DHS employees may not can authorize, demand, or require a contractor to incur precontract costs. The contracting officer must advise the prospective contractor that any costs incurred before contract award are incurred at the contractor's sole risk and that if negotiations fail to result in a binding contract, payment of these costs will not be made by the Government. See (HSAR) 48 CFR 3032.205-32(b) regarding exception due to reconciliation of costs.

(b) When the contracting officer determines that incurring precontract costs was necessary to meet the proposed contract delivery schedule of a cost-reimbursement contract, the clause at (HSAR) 48 CFR 3052.231-70, Precontract Costs, may be inserted in the resultant contract.

PART 3032—CONTRACT FINANCING

Subpart 3032.000—Scope of Part

Sec.

3032.003

Simplified acquisition procedures financing.

3032.006

Reduction or suspension of contract payments upon finding of fraud.

3032.006-2

Definition.

3032.006-3

Responsibilities.

Subpart 3032.11—Electronic Funds Transfer

3032.1110

Solicitation provision and contract clauses.

Subpart 3032.000—Scope of Part

3032.003

Simplified acquisition procedures financing.

Contract financing may be permitted for purchases made under the authority of (FAR) 48 CFR Part 13. This authority is delegated to COCO and may not be redelegated.

3032.006

Reduction or suspension of contract payments upon finding of fraud.

3032.006-2

Definition.

The CPO is the DHS remedy coordination official (RCO).

3032.006-3

Responsibilities.

(a) The CPO is authorized to establish specific procedures.

(b) Reports shall be made through the HCA to the CPO.

Subpart 3032.11—Electronic Funds Transfer

3032.1110

Solicitation provision and contract clauses.

(a)(1) Contracting officer shall insert FAR 48 CFR 52.232-33, Payment by Electronic Funds Transfer—Central Contractor Registration, in all proposed solicitations and contracts.

PART 3033—PROTESTS, DISPUTES, AND APPEALS

Subpart 3033.2—Disputes and Appeals

Sec.

3033.201

Definitions.

3033.211

Contracting officer's decision.

3033.214

Alternative disputes resolution (ADR).

Subpart 3033.2—Disputes and Appeals

3033.201

Definitions.

Agency Board of Contract Appeals

means the Department of Transportation Board of Contract Appeals (DOTBCA).

3033.211

Contracting officer's decision.

For DHS contracts, the Board of Contract Appeals (BCA) noted in (FAR) 48 CFR 33.211 is the Department of Transportation Board of Contract Appeals (DOTBCA) (S-20), 400 7th Street, S.W., Washington, DC, 20590. The DOTBCA Rules of Procedure are contained in 48 CFR Chapter 63, Part 6301. TSA shall use the DOTBCA for only Contract Disputes Act (CDA) requirements.

3033.214

Alternative dispute resolution (ADR).

(c) The Administrative Dispute Resolution Act (ADRA) of 1996, as amended, 5 U.S.C. 571,

et seq.

, authorizes and encourages agencies to use mediation, conciliation, arbitration, and other techniques for the prompt and informal resolution of disputes, and for other purposes. The DOTBCA ADR procedures are contained in 48 CFR chapter 63, section 6302.30, ADR Methods (Rule 30), and will be distributed to the parties, if ADR procedures are used. These procedures may be obtained from the DOTBCA upon request. ADR procedures may be used when—

(1) There is mutual consent by the parties to participate in the ADR process (with consent being obtained either before or after an issue in controversy has arisen);

(2) Prior to the submission of a claim; and

(3) In resolution of a formal claim.

PART 3034—MAJOR SYSTEM ACQUISITION [RESERVED]

PART 3035—RESEARCH AND DEVELOPMENT CONTRACTING

Subpart 3035.000—Scope of Part

Sec.

3035.003

Policy.

Subpart 3035.000—Scope of Part

3035.003

Policy.

(b) Cost sharing shall be determined on a case by case basis. OEs may establish procedures for cost sharing.

(c) Recoupment shall be determined on a case-by-case basis. Recoupment not otherwise required by law should be structured to address factors such as recovering the Department's fair share of its investment in nonrecurring costs related to the items acquired. Advice of legal counsel shall be obtained prior to establishing cost sharing policies and recoupment mechanisms under (FAR) 48 CFR 35.003(b) and (c).

PART 3036—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Subpart 3036.2—Special Aspects of Contracting for Construction

Sec.

3036.201

Evaluation of contractor performance.

Subpart 3036.5—Contract Clauses

3036-570

Special precautions for work at operating airports.

Subpart 3036.2—Special Aspects of Contracting for Construction

3036.201

Evaluation of contractor performance.

(a)(2) Performance reports shall be prepared and entered into the Contractor Performance System (CPS) on an annual basis for contracts exceeding one year, or as otherwise required by (FAR) 48 CFR 36.201. Access to reports is through the CPS or the government-wide system, Past Performance Information Retrieval System (PPIRS).

Subpart 3036.5—Contract Clauses

3036.570

Special precautions for work at operating airports.

Where any acquisition will require work at an operating airport, insert the clause at (HSAR) 48 CFR 3052.236-70, Special Precautions for Work at Operating Airports, in solicitations and contracts.

PART 3037—SERVICE CONTRACTING

Subpart 3037.1—Service Contracts—General

Sec.

3037.103

Contracting officer responsibility.

3037.103-70

Contractor personnel access application.

3037.103-71

Conditional access to sensitive but unclassified information.

3037.104

Personal services contracts.

3037.104-70

Personal services contracts.

3037.104-90

Personal services contracts (USCG).

3037.104-91

Personal services with individuals under the authority of 10 U.S.C. 1091 (USCG).

3037.110-70

Solicitation provisions and contract clauses.

Subpart 3037.1—Service Contracts—General

3037.103

Contracting officer responsibility.

3037.103-70

Contractor personnel access application.

Contractor personnel who will require recurring access to DHS facilities as part of contract performances shall complete HSIF Form 3237, Contractor Personnel Access Application, before starting work under the contract. The completed form shall be submitted to the appropriate DHS office as designated in the contract. Contractor personnel may be required to complete additional forms, as necessary.

3037.103-71

Conditional access to sensitive but unclassified information.

Contractor personnel who will require access to sensitive but unclassified information as part of contract performances shall complete HSIF Form 4024, Sensitive Information Non-Disclosure Agreement, before starting work under the contract. The completed form shall be submitted to the appropriate DHS office as designated in the contract. Additional requirements are established in clause (HSAR) 48 CFR 3052.237-71, Information Technology Systems Access for Contractors.

3037.104

Personal services contracts.

3037.104-70

Personal services contracts.

(b)(i) Authorization to acquire the personal services of experts and consultants is included in Public Law 107-296, sections 832(1) and (2). This section includes authority to use personal service contracts without regard to the pay limitation of 5 U.S.C. 3109 when the services are necessary due to an urgent homeland security need.

(A) Prepare each D&F in accordance with (FAR) 48 CFR 1.7 and include a determination that—

(1) The duties are of a temporary or intermittent nature and not to exceed one year;

(2) DHS personnel with necessary skills are not available;

(3) Excepted appointment cannot be obtained;

(4) A nonpersonal services contract is not practicable;

(5) Statutory authority, Public Law 107-297, section 832(1) or section 832(2) and other legislation, apply;

(6) If the pay limitation of 5 U.S.C. 3109 is exceeded, the D&F supports the rationale; and

(7) Any other determination required by statues has been made.

(B)(1) Except as provided in paragraph (b)(i)(B)(2) of this subsection, the COCO shall approve the D&F required by paragraph (b)(i)(A).

(2) The HCA shall approve the D&F for personal service contracts for experts and consultant services that are acquired without regard to the pay limitation of 5 U.S.C. 3109. This determination shall include a finding that the services are necessary due to urgent homeland security needs.

(i) The contract may provide for the same per diem and travel expenses authorized for a Government employee, including actual transportation and per diem in lieu of subsistence for travel between home or place of business and official duty station and only for travel outside the local area in support of the statement of work.

(ii) Coordinate benefits, taxes, personnel ceilings, and maintenance of records with the appropriate office(s).

3037.104-90

Personal services contracts (USCG).

(a) The U.S. Coast Guard HCA may enter into medical personal services contracts according to 10 U.S.C. 1091.

(b) The authority of 10 U.S.C. 1091(a)(2) expires December 31, 2003.

3037.104-91

Personal services contracts with individuals under the authority of 10 U.S.C. 1091 (USCG).

(a) Health care personal services contracts awarded to individuals shall be selected through procedures established in this section. Selections made using the procedures in this section are exempt by statute from (HSAR) 48 CFR part 3006 competition requirements (see (HSAR) 48 CFR 3006.9000 (USCG)) and from (FAR) 48 CFR Part 6 competition requirements.

(b) The contracting officer shall provide adequate advance notice of contracting opportunities to individuals residing in the area of the facility. The notice should include the qualification criteria against which individuals

responding shall be evaluated. Contracting officers shall solicit offerors through the most effective means of seeking competition, such as a local publication, which serves the area of the facility. Acquisitions of health care services using personal services contracts are exempt from posting and synopsis requirements of (FAR) 48 CFR Part 5.

(c) The contracting officer shall provide the qualifications of individuals responding to the notice to the representative(s) responsible for evaluation and ranking according to the evaluation procedures. Individuals shall be considered solely on the professional qualifications established for the particular health care services being acquired and the Government's estimate of reasonable rates, fees, or costs. The representative(s) responsible for the evaluation and ranking shall provide the contracting officer with rationale for the ranking of the individuals consistent with the required qualifications.

(d) Upon receipt of the ranked listing of offerors, the contracting officer shall either:

(1) Enter into negotiations with the highest ranked offeror. If a mutually satisfactory contract cannot be negotiated, the contracting officer shall terminate negotiations with the highest ranked offeror and enter into negotiations with the next highest, or;

(2) Enter into negotiations with all qualified offerors and select on the basis of qualifications and rates, fees, or other costs.

(e) In the event only one individual responds to an advertised requirement, the contracting officer is authorized to negotiate the contract award. In this case, the individual must still meet the minimum qualifications of the requirement and the contracting officer must be able to make a determination that the price is fair and reasonable.

(f) If a fair and reasonable price cannot be obtained from a qualified individual, the requirement should be canceled and acquired using procedures other than those set forth in this section.

(g) The total amount paid to an individual in any year for health care services under a personal services contract shall not exceed the paycap in COMDTINST M4200.19 (series), Coast Guard Acquisition Procedures.

(h) The contract may provide for the same per diem and travel expenses authorized for a Government employee, including actual transportation and per diem in lieu of subsistence for travel between home or place of business and official duty station and only for travel outside the local area in support of the statement of work.

(i) Coordinate benefits, taxes and maintenance of records with the appropriate office(s).

(j) The contracting officer shall insure that contract funds are sufficient to cover all contingency items that may be cited in the statement of work for health care services.

3037.110-70

Solicitation provisions and contract clauses.

(a) Contracting officers shall insert the clause at (HSAR) 48 CFR 3052.237-70, Qualifications of Contractor Employees, in all solicitations and contracts for services, which require contract employees to have recurring access to Government facilities, sensitive information, including proprietary data or resources. This may include Information Technology (IT) requirements for design, development, or operation and maintenance of sensitive application in non-DHS or DHS facilities.

(b) In addition to the (HSAR) clause 48 CFR 3052.237-70, the contracting officer shall also include the contract clauses, (HSAR) clause 48 CFR 3052.237-71, “Information Systems Access for Contractors” and (HSAR) clause 48 CFR 3052.237-72, “Contractor Personnel Screening for Unclassified Information Technology''.

(c) The contracting officer shall also include (HSAR) clause 48 CFR 3052.204-70, “Information Technology Security Plan” in solicitations and contracts when the prescription at paragraph (a) above applies.

PART 3038—FEDERAL SUPPLY SCHEDULE CONTRACTING—[RESERVED]

PART 3039—ACQUISITION OF INFORMATION TECHNOLOGY—[RESERVED]

PART 3040—[RESERVED]

PART 3041—ACQUISITION OF UTILITY SERVICES—[RESERVED]

PART 3042—CONTRACT ADMINISTRATION AND AUDIT SERVICES

Subpart 3042.2—Contract Administration Services

Sec.

3042.202

Assignment of contract administration.

3042.202-70

Contract clauses.

Subpart 3042.15—Contractor Performance Information

3042.1502

Policy.

Subpart 3042.70—Contracting Officer's Technical Representative

3042.7000

Contract clause.

Subpart 3042.2—Contract Administration Services

3042.202

Assignment of contract administration.

3042.202-70

Contract clauses.

(a) The contracting officer may use the clause at (HSAR) 48 CFR 3052.242-70, Dissemination of Information—Educational Institutions, in lieu of the clause at (HSAR) 48 CFR 3052.242-71, Dissemination of Contract Information, in DHS research contracts with educational institutions, except contracts that require the release or coordination of information.

(b) The contracting officer may insert the clause at (HSAR) 48 CFR 3052.242-71, Dissemination of Contract Information, in all DHS contracts except contracts that require the release or coordination of information.

Subpart 3042.15—Contractor Performance Information

3042.1502

Policy.

(a) OEs shall use the Contractor Performance System (CPS) for evaluating contractor performance in accordance with (FAR) 48 CFR 42.1502 and part 1503.

Subpart 3042.70—Contracting Officer's Technical Representative

3042.7000

Contract clause.

The contracting officer shall insert the clause at (HSAR) 48 CFR 3052.242-72, Contracting Officer's Technical Representative, in solicitations and contracts when it is intended that a representative will be assigned to the contract to perform functions of a technical nature.

PART 3043—CONTRACT MODIFICATIONS—[RESERVED]

PART 3044—SUBCONTRACTING POLICIES AND PROCEDURES—[RESERVED]

PART 3045—GOVERNMENT PROPERTY

Subpart 3045.5—Management of Government Property in the Possession of Contractors

Sec.

3045.505

Records and reports of Government property.

3045.505-14

Reports of Government property.

3045.505-70

Solicitation provisions and contract clauses.

3045.508

Physical inventories.

3045.508-2

Reporting results of inventories.

3045.508-3

Quantitative and monetary control.

3045.511

Audit of property control system.

Subpart 3045.5—Management of Government Property in the Possession of Contractors

3045.505

Records and reports of Government property.

3045.505-14

Reports of Government property.

(a) When Government property is furnished to or acquired by the contractor to perform the contract, the contract shall require the contractor to submit annual reports (see (FAR) 48 CFR 45.505-14) to the contracting officer not later than September 15 of each year. The contractor's report shall be submitted on DHS Form 0700-05, Contractor Report of Government Property.

3045.505-70

Solicitation provisions and contract clauses.

Contracting officers shall insert the clause at (HSAR) 48 CFR 3052.245-70 in solicitations and contracts when the contract will require Government provided or contractor acquired property.

3045.508

Physical inventories.

3045.508-2

Reporting results of inventories.

The inventory report shall also include the following:

(a) Name and title of the individual(s) that performed the physical inventory;

(b) An itemized, categorized listing of all property capitalized:

(1) Land and rights therein;

(2) Other real property;

(3) Plant equipment;

(4) Special test equipment; and

(5) Special tooling;

(c) An itemized listing of the property lost, damaged, destroyed, or stolen, the circumstances surrounding each incident, and the resolution of the incident; and

(d) Any discrepancies between the physical inventory and the contractor's record of Government property.

3045.508-3

Quantitative and monetary control.

Contracting officers shall require the contractor to provide the quantity and unit cost of each item of Government property reported under (HSAR) 48 CFR 3045.508-2(b) and (c).

3045.511

Audit of property control system.

(a) The property administrator (or other Government official authorized by the contracting officer) shall audit the contractor's property control system whenever there are indications that the contractor's property control system may be deficient. Examples of deficiencies are:

(1) Failure of the contractor to acknowledge receipt of GFP;

(2) Failure of the contractor to submit the annual property reports required by (HSAR) 48 CFR 3045.505-14;

(3) Failure of the contractor to reconcile its physical inventory with its property control record; or

(4) Failure of the contractor to submit a Government property listing when requested by the property administrator.

(b) When it is determined that the contractor's property control system is deficient, the property administrator, in coordination with the contracting officer, shall discuss the deficiencies with the contractor. If the contractor does not take action to correct the deficiencies, the contracting officer shall provide the contractor with a written notice of the deficiencies and the date all deficiencies shall be corrected.

PART 3046—QUALITY ASSURANCE

Subpart 3046.7—Warranties

Sec.

3046.702

General.

3046.702-70

Additional definitions.

3046.703

Criteria for use of warranties.

3046.705

Limitations.

3046.706

Warranty terms and conditions.

3046.790

Additional USCG definitions (USCG).

3046.791

Use of warranties in major systems acquisitions by the USCG (USCG).

3046.791-1

Policy (USCG).

3046.791-2

Tailoring warranty terms and conditions. (USCG).

3046.791-3

Warranties on Government-furnished property (USCG).

3046.792

Cost benefit analysis (USCG).

3046.793

Waiver and notification procedures (USCG).

Subpart 3046.7—Warranties

3046.702

General.

3046.702-70

Additional definitions.

At no additional cost to the Government

, means without an increase in price for firm-fixed-price contracts, without an increase in target or ceiling price for fixed price incentive contracts (see (FAR) 48 CFR 46.707), or without an increase in estimated cost or fee for cost-reimbursement contracts.

Defect

means any condition or characteristic in any supplies or services furnished by the contractor under the contract that is not in compliance with the requirements of the contract.

Design and manufacturing requirements

means structural and engineering plans and manufacturing particulars, including precise measurements, tolerances, materials and finished product tests for the major system being produced.

Major system

means a system or major subsystem used directly by the Department of Homeland Security (DHS) to carry out its mission(s), as defined by HSAM Chapter 1234, Major Acquisition Policies and Procedures (for dollar threshold applicable to U.S. Coast Guard, See Coast Guard guidance at (HSAR) 48 CFR 3046.701-90). The term does not include:

(1) Related support equipment, such as ground-handling equipment, training devices and accessories thereto, unless a cost effective warranty for the system would require inclusion of such items; or

(2) Commercial items sold in substantial quantities to the general public as described in (FAR) 48 CFR part 2.

Performance requirements

means the operating capabilities, maintenance, and reliability characteristics of a system that are determined to be necessary for it to fulfill the requirement for which the system is designed.

3046.703

Criteria for use of warranties.

(a)

Major Systems

. The use of warranties in the procurement of major systems by the USCG is mandatory, unless waived (see USCG guidance at (HSAR) 48 CFR 3046.792). Other OEs may use the procedures in USCG guidance in this part as a guideline for major systems acquisitions.

3046.705

Limitations.

(a) The following restrictions are applicable to DHS contracts:

(1) The USCG is required to include a warranty in cost reimbursement contracts for the production of major systems acquisitions.

(2) Any warranty on major system acquisitions shall not apply in the case of any system or component thereof which has been furnished by the Government to a contractor except as indicated in the USCG guidance at (HSAR) 48 CFR 3046.791-3.

(3) Any warranty obtained shall specifically exclude coverage of damage in time of war or national emergency.

3046.706

Warranty terms and conditions.

(a) The contracting officer, in developing the warranty terms and conditions, shall consider the following, and, where appropriate and cost beneficial, shall:

(1) Identify the affected line item(s) and the applicable specification(s);

(2) Require that the line item's design and manufacture will conform to:

(i) An identified revision of a top-level drawing; and/or

(ii) An identified specification or revision thereof;

(3) Require that the system conform to the specified Government performance requirements;

(4) Require that all systems and components delivered under the contract will be free from defects in materials and workmanship;

(5) State that in the event of failure due to nonconformance with specification and/or defects in material and workmanship, the contractor will bear the cost of all work necessary to achieve the specified performance requirements, including repair and/or replacement of all parts;

(6) Require the timely replacement/repair of warranted items and specify lead times for replacement/repair where possible;

(7) Identify the specific paragraphs containing Government performance requirements which must be met;

(8) Ensure that any performance requirements identified as goals or objectives in excess of specification requirements are excluded from the warranty provision;

(9) Define what constitutes the start of the warranty period (

e.g.

, delivery, acceptance, in-service date), the ending of the warranty (

e.g.

, passing a test or demonstration, or operation without failure for a specified time period), and circumstances requiring an extension of warranty duration (

e.g.

, extending the warranty period as a result of mass defect correction during warranty period);

(10) Identify what transportation costs will be paid by the contractor in conjunction with warranty coverage;

(11) Identify any conditions which will not be covered by the warranty, other than the exclusion of combat damage; and

(12) Identify any limitation on the total dollar amount of the contractor's warranty exposure, or agreement to share costs after a certain dollar threshold to avoid unnecessary warranty returns.

(b) Any contract that contains a warranty clause shall contain warranty implementation procedures, including warranty notification content and procedures, and identify the individuals responsible for implementation of warranty provisions. The contract may also permit the contractor's participation in investigation of system failures, providing that the contractor is reimbursed at established rates for fault isolation work, and that the Government receives credit for any payments where equipment failure is covered by warranty provisions.

3046.790

Additional USCG definitions (USCG).

For the USCG, in accordance with Public Law 99-190, the dollar threshold as it pertains to the inclusion of a warranty in major systems acquisitions is $10 million.

3046.791

Use of warranties in major systems acquisitions by the USCG (USCG).

This subpart provides the policy for the USCG to use in obtaining warranties from contractors when contracting for the acquisition of a major system.

3046.791-1

Policy (USCG).

The USCG shall include a warranty in all contracts for major systems acquisitions. When drafting warranty provisions/clauses for major systems acquisitions, the contracting officer shall ensure that the items listed at (HSAR) 48 CFR 3046.706 have been considered. The warranty shall also meet the following requirements:

(a) For systems or components which are commercially available, such warranty as is normally provided by the manufacturer or supplier shall be obtained in accordance with (FAR) 48 CFR 46.703(d) and (FAR) 48 CFR 46.710(b)(2).

(b) For systems or components provided in accordance with either design and manufacturing or performance requirements as specified in the contract or any modification to that contract, a warranty of compliance with the stated requirements shall be obtained.

(c) The warranty provided under paragraph (b) of this section shall provide that in the event the major system or any component thereof fails to meet the terms of the warranty provided, the contracting officer may:

(1) Require the contractor to promptly take such corrective action as the contracting officer determines to be necessary at no additional cost to the Government, including repairing or replacing all parts necessary to achieve the requirements set forth in the contract;

(2) Require the contractor to pay costs reasonably incurred by the United States in taking necessary corrective action; or

(3) Equitably reduce the contract price.

(d) Any warranty shall specifically exclude coverage of combat damage.

3046.791-2

Tailoring warranty terms and conditions (USCG).

(a) As the objectives and circumstances vary considerably among major systems acquisition programs, contracting officers shall appropriately tailor the warranty on a case-by-case basis, including remedies, exclusions, limitations and durations, provided the tailoring is consistent with the specific requirements of this subpart and (FAR) 48 CFR 46.706.

(b) Contracting officers of major systems acquisitions may exclude from the terms of the warranty certain defects for specified supplies (exclusions) and may limit the contractor's liability under the terms of the warranty (limitations), as appropriate, if necessary to derive a cost-effective warranty in light of the technical risk, contractor financial risk, or other program uncertainties.

(c) Contracting officers are encouraged to structure a broader and more comprehensive warranty where such is advantageous. Likewise, the contracting officer may narrow the scope of a warranty when appropriate (

e.g.

, where it would be inequitable to require a warranty of all performance requirements because a contractor had not designed the system).

(d) Contracting officers shall not include in a warranty clause any terms that require the contractor to incur liability for loss, damage, or injury to third parties.

3046.791-3

Warranties on Government-furnished property (USCG).

A contractor for a major systems acquisition shall not be required to provide the warranties specified in (HSAR) 48 CFR 3046.790-1 on any property furnished to that contractor by the Government except for:

(a) Defects in installation; and

(b) Installation or modification in such a manner that invalidates a warranty provided by the manufacturer of the property.

3046.792

Cost benefit analysis (USCG).

If a specific warranty is considered not to be cost beneficial by the contracting officer, a waiver request shall be initiated in accordance with guidance at (HSAR) 48 CFR 3046.793.

3046.793

Waiver and notification procedures (USCG).

(a) The Secretary of Homeland Security, without delegation, may waive the requirement for a warranty for USCG major system acquisitions when the waiver is in the interest of national defense or if the warranty obtained would not be cost beneficial. A waiver may be granted provided that the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Commerce, Science and Transportation of the Senate, and the Committee on

Merchant Marine and Fisheries of the House of Representatives are notified, in writing, of the Secretary's intention to waive the warranty requirements and the reasons supporting such a determination prior to granting the waiver. The request for Secretarial waiver shall include, as a minimum:

(1) A brief description of the major system and its stage of production (

e.g.

, the number of units delivered and anticipated to be delivered during the life of the program);

(2) The specific waiver requested, the duration of the waiver if it is to involve more than one contract, and the rationale for the waiver; and

(3) All documentation supporting the request for waiver, such as a cost-benefit analysis.

(b) The waiver request shall be forwarded to the Secretary, via the CPO. The USCG shall maintain a written record of each waiver granted and the Congressional notification and report made, together with supporting documentation.

PART 3047—TRANSPORTATION

Subpart 3047.3—Transportation in Supply Contracts

Sec.

3047.305

Solicitation provisions, contract clauses, and transportation factors.

3047.305-70

Solicitation provision.

Subpart 3047.3—Transportation in Supply Contracts

3047.305

Solicitation provisions, contract clauses, and transportation factors.

3047.305-70

Solicitation provisions.

The contracting officer shall insert the following provisions in solicitations, as applicable:

(a) (HSAR) 48 CFR 3052.247-70, F.o.b. Origin Information, with Alternates I or II, as applicable, shall be inserted in accordance with (FAR) 48 CFR 47.305-3(b);

(b) (HSAR) 48 CFR 3052.247-71, F.o.b. Origin Only, shall be inserted in accordance with (FAR) 48 CFR 47.305-3(e); and

(c) (HSAR) 48 CFR 3052.247-72, F.o.b. Destination Only, shall be inserted in accordance with (FAR) 48 CFR 47.305-4(b).

PART 3048—VALUE ENGINEERING—[RESERVED]

PART 3049—TERMINATION OF CONTRACTS—[RESERVED]

PART 3050—EXTRAORDINARY CONTRACTUAL ACTIONS—[RESERVED]

PART 3051—USE OF GOVERNMENT SOURCES BY CONTRACTORS—[RESERVED]

PART 3052—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 3052.1—Instructions for Using Provisions and Clauses

Sec.

3052.101

Using part 3052.

Subpart 3052.2—Texts of Provisions and Clauses

3052.204-70

Security requirements for unclassified information technology resources.

3052.209-70

Prohibition on contracts with corporate expatriates.

3052.209-71

Reserve Officer Training Corps and military recruiting on campus.

3052.209-72

Disclosure of conflicts of interest.

3052.211-70

Index for specifications.

3052.211-90

Bar coding requirement (USCG).

3052.213-90

Evaluation factor for Coast Guard performance of bar coding requirement (USCG).

3052.215-70

Key personnel or facilities.

3052.216-70

Evaluation of offers subject to an economic price adjustment clause.

3052.216-71

Determination of award fee.

3052.216-72

Performance evaluation plan.

3052.216-73

Distribution of award fee.

3052.216-74

Settlement of letter contract.

3052.217-90

Delivery and shifting of vessel (USCG).

3052.217-91

Performance (USCG).

3052.217-92

Inspection and manner of doing work (USCG).

3052.217-93

Subcontracts (USCG).

3052.217-94

Lay days (USCG).

3052.217-95

Liability and insurance (USCG).

3052.217-96

Title (USCG).

3052.217-97

Discharge of liens (USCG).

3052.217-98

Delays (USCG).

3052.217-99

Department of Labor safety and health regulations for ship repair (USCG).

3052.217-100

Guarantee (USCG).

3052.219-70

Small business subcontracting program reporting.

3052.219-71

DHS mentor-protégé program.

3052.219-72

Evaluation of prime contractor participation in the DHS mentor-protégé program.

3052.222-70

Strikes or picketing affecting timely completion of the contract work.

3052.222-71

Strikes or picketing affecting access to a DHS facility.

3052.222-90

Local hire (USCG).

3052.223-70

Removal or disposal of hazardous substances—applicable licenses and permits.

3052.223-90

Accident and fire reporting (USCG).

3052.228-70

Insurance.

3052.228-90

Notification of Miller Act payment bond protection (USCG).

3052.228-91

Loss of or damage to leased aircraft (USCG).

3052.228-92

Fair Market value of aircraft (USCG).

3052.228-93

Risk and indemnities (USCG).

3052.231-70

Precontract costs.

3052.236-70

Special provisions for work at operating airports.

3052.237-70

Qualifications of contractor employees.

3052.237-71

Information technology systems access for contractors.

3052.237-72

Contractor personnel screening for unclassified information technology access.

3052.242.70

Dissemination of information—educational institutions.

3052.242-71

Dissemination of contract information.

3052.242-72

Contracting officer's technical representative.

3052.245-70

Government property reports.

3052.247-70

F.o.b. origin information.

3052.247-71

F.o.b. origin only.

3052.247-72

F.o.b. destination only.

Subpart 3052.1—Instructions for Using Provisions and Clauses

3052.101

Using part 3052.

(b) Numbering.

(2)(i) Provisions or clauses that supplement the FAR.

(A) Agency-prescribed provisions and clauses permitted by HSAR and used on a standard basis (

i.e.

, normally used in two or more solicitations or contracts regardless of contract type) shall be prescribed and contained in the HSAR. OEs desiring to use a provision or a clause on a standard basis shall submit a request containing a copy of the clause(s), justification for its use, and evidence of legal counsel review to the CPO in accordance with (HSAR) 48 CFR 3001.304 for possible inclusion in the HSAR.

(B) Provisions and clauses used on a one-time basis (

i.e.

, non-standard provisions and clauses) may be approved by the contracting officer, unless a higher level is designated by the OE. This authority is subject to:

(1)

Evidence of legal counsel review in the contract file;

(2)

Inserting these clauses in the appropriate sections of the uniform contract format; and

(3)

Ensuring the provisions and clauses do not deviate from the requirements of the FAR and HSAR.

Subpart 3052.2—Text of Provisions and Clauses

3052.204-70

Security requirements for unclassified information—technology resources.

As prescribed in (HSAR) 48 CFR 3004.470-4 Contract clauses, and (HSAR) 48 CFR 3037.110-70 (a) and (b), insert a clause substantially the same as follows:

Security Requirements for Unclassified Information Technology Resources (Dec. 2003)

(a) The Contractor shall be responsible for Information Technology (IT) security for all systems connected to a DHS network or operated by the Contractor for DHS, regardless of location. This clause applies to all or any part of the contract that includes information technology resources or services for which the Contractor must have physical or electronic access to sensitive information contained in DHS unclassified systems that directly support the agency's mission. The security requirements include, but are not limited to, how the Department of Homeland Security's sensitive information is to be handled and protected at the Contractor's site, (including any information stored, processed, or transmitted using the Contractor's computer systems), the background investigation and/or clearances required, and the facility security required. This requirement includes information technology, hardware, software, and the management, operation, maintenance, programming, and system administration of computer systems, networks, and telecommunications systems. Examples of tasks that require security provisions include—

(1) Acquisition, transmission or analysis of data owned by DHS with significant replacement cost should the contractor's copy be corrupted; and

(2) Access to DHS networks or computers at a level beyond that granted the general public, (

e.g.

such as bypassing a firewall).

(b) At the expiration of the contract, the contractor shall return all sensitive DHS information and IT resources provided to the contractor during the contract, and a certification that all DHS information has been purged from any contractor-owned system used to process DHS information. Organizational elements shall conduct reviews to ensure that the security requirements in the contract are implemented and enforced.

(c) The Contractor shall provide, implement, and maintain an IT Security Plan. This plan shall describe the processes and procedures that will be followed to ensure appropriate security of IT resources that are developed, processed, or used under this contract. The plan shall describe those parts of the contract to which this clause applies. The Contractor's IT Security Plan shall be compliant with Federal laws that include, but are not limited to, the Computer Security Act of 1987 (40 U.S.C. 1441

et seq.

), and the Government Information Security Reform Act of 2000, and the Federal Information Security Management Act of 2002. The plan shall meet IT security requirements in accordance with Federal policies and procedures that include, but are not limited to OMB Circular A-130, Management of Federal Information Resources, Appendix III, and Security of Federal Automated Information Resources;

(d) Within__days after contract award, the contractor shall submit for approval an IT Security Plan. This plan shall be consistent with and further detail the approach contained in the offeror's proposal or quote that resulted in the award of this contract and in compliance with the requirements stated in this clause. The plan, as approved by the Contracting Officer, shall be incorporated into the contract as a compliance document.

(e) Within 6 months after contract award, the contractor shall submit written proof of IT Security accreditation to DHS for approval by the DHS Contracting Officer. Accreditation will be according to the criteria of the Homeland Security Information Technology Security program Publication, DHS MD 4300.Pub., Volume I, Policy Guide, Part A, Sensitive Systems, which is available from the Contracting Officer upon request. This accreditation will include a final security plan, risk assessment, security test and evaluation, and disaster recovery plan/continuity of operations plan. This accreditation, when accepted by the Contracting Officer, shall be incorporated into the contract as a compliance document, and shall include a final security plan, a risk assessment, security test and evaluation, and disaster recovery/continuity of operations plan. The contractor shall comply with the approved accreditation documentation.

(End of clause)

3052.209-70

Prohibition on contracts with corporate expatriates.

As prescribed at (HSAR) 48 CFR 3009.104-75, insert the following clause:

Prohibition on Contracts With Corporate Expatriates (Dec. 2003)

(a) Prohibitions.

Section 835 of Public Law 107-296, prohibits the Department of Homeland Security from entering into any contract with a foreign incorporated entity after November 25, 2002, which is treated as an inverted domestic corporation as defined in this clause.

The Secretary shall waive the prohibition with respect to any specific contract if the Secretary determines that the waiver is required in the interest of homeland security, or to prevent the loss of any jobs in the United States or prevent the Government from incurring any additional costs that otherwise would not occur.

(b) Definitions. As used in this clause:

Expanded Affiliated Group

means an affiliated group as defined in section 1504(a) of the Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except that section 1504 of such Code shall be applied by substituting ‘more than 50 percent’ for ‘at least 80 percent’ each place it appears.

Foreign Incorporated Entity

means any entity which is, or but for subsection (b) of section 835 of the Homeland Security Act, Public Law 107-296, would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.

Inverted Domestic Corporation.

A foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a plan (or a series of related transactions)—

(1) The entity completes after November 25, 2002, the direct or indirect acquisition of substantially all of the properties held directly or indirectly by a domestic corporation or substantially all of the properties constituting a trade or business of a domestic partnership;

(2) After the acquisition at least 80 percent of the stock (by vote or value) of the entity is held—

(i) In the case of an acquisition with respect to a domestic corporation, by former shareholders of the domestic corporation by reason of holding stock in the domestic corporation; or

(ii) In the case of an acquisition with respect to a domestic partnership, by former partners of the domestic partnership by reason of holding a capital or profits interest in the domestic partnership; and

(3) The expanded affiliated group which after the acquisition includes the entity does not have substantial business activities in the foreign country in which or under the law of which the entity is created or organized when compared to the total business activities of such expanded affiliated group.

Person, domestic, and foreign

have the meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.

(c) Special rules. The following definitions and special rules shall apply when determining whether a foreign incorporated entity should be treated as an inverted domestic corporation.

(1)

Certain stock disregarded.

For the purpose of treating a foreign incorporated entity as an inverted domestic corporation these shall not be taken into account in determining ownership:

(i) stock held by members of the expanded affiliated group which includes the foreign incorporated entity; or

(ii) stock of such entity which is sold in a public offering related to the acquisition described in subsection (b)(1) of Section 835 of the Homeland Security Act, Public Law 107-296.

(2)

Plan deemed in certain cases.

If a foreign incorporated entity acquires directly or indirectly substantially all of the properties of a domestic corporation or partnership during the 4-year period beginning on the date which is after the date of enactment of this Act and which is 2 years before the ownership requirements of subsection (b)(2) are met, such actions shall be treated as pursuant to a plan.

(3)

Certain transfers disregarded.

The transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes of this section.

(d)

Special rule for related partnerships.

For purposes of applying section 835(b) of Public Law 107-296 to the acquisition of a

domestic partnership, except as provided in regulations, all domestic partnerships which are under common control (within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated as a partnership.

(e) Treatment of Certain Rights.

(1) Certain rights shall be treated as stocks to the extent necessary to reflect the present value of all equitable interests incident to the transaction, as follows:

(i) Warrants;

(ii) Options;

(iii) Contracts to acquire stock;

(iv) Convertible debt instruments;

(v) Others similar interests.

(2) Rights labeled as stocks shall not be treated as stocks whenever it is deemed appropriate to do so to reflect the present value of the transaction or to disregard transactions whose recognition would defeat the purpose of section 835.

(f)

Disclosure.

By signing and submitting its offer, an offeror under this solicitation represents that it not a foreign incorporated entity that should be treated as an inverted domestic corporation pursuant to the criteria of Section 835 of the Homeland Security Act, Public Law 107-296 of November 25, 2002.

(g) If a waiver has been granted, a copy of the approved waiver shall be attached to the bid or proposal.

(End of provision)

3052.209-71

Reserve Officer Training Corps and military recruiting on campus.

As prescribed in (HSAR) 48 CFR 3009.470-4, use the following clause:

Reserve Officer Training Corps and Military Recruiting on Campus (Dec 2003)

(a) Definitions.

Institution of higher education,

as used in this clause, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.

(b) Limitation on contract award. Except as provided in paragraph (c) of this clause, an institution of higher education is ineligible for contract award if the Secretary of Defense determines that the institution has a policy or practice (regardless of when implemented) 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) (in accordance with 10 U.S.C. 654 and other applicable Federal laws) 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 Homeland Security from gaining entry to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting; or

(4) Military recruiters from accessing, for purposes of military recruiting, the following information pertaining to students (who are 17 years of age or older) enrolled at that institution:

(i) Name.

(ii) Address.

(iii) Telephone number.

(iv) Date and place of birth.

(v) Educational level.

(vi) Academic major.

(vii) Degrees received.

(viii) Most recent educational institution enrollment.

(c) Exception. The limitation in paragraph (b) of this clause 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 (b) of this clause; or

(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.

(d) Agreement. The Contractor represents that it does not now have, and agrees that during performance of this contract it will not adopt, any policy or practice described in paragraph (b) of this clause, unless the Secretary of Defense has granted an exception in accordance with paragraph (c)(2) of this clause.

(e) Notwithstanding any other clause of this contract, if the Secretary of Defense determines that the Contractor misrepresented its policies and practices at the time of contract award or has violated the agreement in paragraph (d) of this clause—

(1) The Contractor will be ineligible for further payments under this and any other contracts with the Department of Homeland Security; and

(2) The Government will terminate this contract for default for the Contractor's material failure to comply with the terms and conditions of award.

(End of clause)

3052.209-72

Disclosure of conflicts of interest.

As prescribed in (HSAR) 48 CFR 3009.507, insert the following provision:

Disclosure of Conflicts of Interest (Dec 2003)

The Department of Homeland Security (DHS) will award contracts only to those offerors whose objectivity is not impaired by conflicting interests. Based on this policy—

(a) The offeror shall provide a statement in its proposal which describes in a concise manner all past, present or planned organizational, financial, contractual or other interest(s) with an organization whose interests may be substantially affected by Departmental activities, and which is related to the work under this solicitation. The interest(s) described shall include those of the proposer, its affiliates, proposed consultants, proposed subcontractors for more than 20% of the work and key personnel of the offeror and any subcontractor accounting for more than 20% of the contract. Past interest shall be limited to within one year of the date of the offeror's technical proposal. Key personnel, for purposes of this clause, shall include any person owning more than 20% interest in the company, and the company's corporate officers, its senior managers and any employees responsible for making a decision or taking an action on this contract where the decision or action can have an economic or other impact on the interests of a regulated or affected organization.

(b) The offeror shall describe in detail why it believes, in light of the interest(s) identified in (a) above, that performance of the proposed contract can be accomplished in an impartial and objective manner.

(c) In the absence of any relevant interest identified in (a) above, the offeror shall submit in its proposal a statement certifying that to its best knowledge and belief no affiliation exists relevant to possible conflicts of interest. The offeror must obtain the same information from potential subcontractors prior to award of a subcontract.

(d) The Contracting Officer will review the statement submitted and may require additional relevant information from the offeror. All such information, and any other relevant information known to DHS, will be used to determine whether an award to the offeror may create a conflict of interest. If any such conflict of interest is found to exist, the Contracting Officer may (1) disqualify the offeror, or (2) determine that it is otherwise in the best interest of the United States to contract with the offeror and include appropriate provisions to mitigate or avoid such conflict in the contract awarded.

(e) The refusal to provide the disclosure or representation, or any additional information required, may result in disqualification of the offeror for award. If nondisclosure or misrepresentation is discovered after award, the resulting contract may be terminated. If, after award, the Contractor discovers a conflict of interest with respect to the contract awarded as a result of this solicitation, which could not reasonably have been known prior to award, an immediate and full disclosure shall be made in writing to the Contracting Officer. The disclosure shall include a full description of the conflict, a description of the action the contractor has taken, or proposes to take, to avoid or mitigate such conflict. The Contracting Officer may, however, terminate the contract for convenience if he or she deems that termination is in the best interest of the Government.

(End of clause)

3052.211-70

Index for specifications.

As prescribed in (HSAR) 48 CFR 3011.204-70 insert the following clause:

Index for Specifications (Dec 2003)

If an index or table of contents is furnished in connection with specifications, it is understood that such index or table of contents is for convenience only. Its accuracy and completeness is not guaranteed, and it is not to be considered as part of the specifications. In case of discrepancy between the index or table of contents and the specifications, the specifications shall govern.

(End of clause)

3052.211-90

Bar coding requirement (USCG).

As prescribed in USCG guidance at (HSAR) 48 CFR 3011.204-90(a) and 3013.302-590, insert the following clause:

Bar Coding Requirements (Dec 2003)

Item markings shall include bar coding in accordance with MIL-STD-1189 as clarified below:

(a) The stock number shall be bar coded with no prefixes, dashes, spaces, or suffixes encoded. The contract number, the delivery order, or call order number, when used, shall be bar coded with no spaces or dashes encoded.

(b) Prefixes and suffixes to the stock number may be included in the OCR-A in-the-clear markings, but not in the bar code.

(c) Preferred Bar Code Density (characters per inch as defined in MIL-STD-1189) is “standard,” but densities from “standard” to “low” are acceptable.

(d) OCR-A characters do not have to be machine-readable.

(e) Bar coding shall be machine-readable.

(f) Unless otherwise specified herein, minimum bar code height shall be 0.25 inch (6.4 mm) or 15 percent of the bar code length, whichever is greater.

(g) The preferred position of the OCR-A characters is below the bar codes, but the OCR-A characters may be above the bar codes.

(h) On outer containers contractors shall either:

(1) Encode the stock numbers and contract number in one line of bar code with the stock number appearing first; or

(2) Encode the item stock number and contract number on two labels, with the top label containing the stock number and the lower label containing the contract number.

(i) On unit and intermediate containers, the item stock number in bar code with OCR-A below may be on the same label as the other data (identification markings) required by MIL-STD-129H. However, the bar code stock number shall appear on the top line with OCR-A characters on the second line; the OCR-A characters may include the stock number prefix and suffix, or alternatively, the complete stock number including any prefix and suffix, shall be repeated as part of the identification markings.

(j) Exclusions from bar code markings are:

(1) Multi-packs/consolidation containers (containers with two or more different stock numbers within).

(2) Reusable shipping containers used for multiple/ different stock number applications.

(3) Items consigned to a prime contractor's plant for installation in production.

(End of clause)

3052.213-90

Evaluation factor for Coast Guard performance of bar coding requirement (USCG).

As prescribed in USCG guidance at (HSAR) 48 CFR 3013.106-190, insert the following provision:

Evaluation Factor for Coast Guard Performance of Bar Coding Requirement (Dec 2003)

If a small business cannot provide the bar coding requirement, as indicated elsewhere in the schedule, the contracting officer will apply the following formula to the quoted amounts:

(a) Unit price quoted by small business $___

(b) Add unit cost to the USCG to provide bar coding $___

(c) Adjusted unit price (add lines a. and b.) $___

The line (c) amount will become the amount the contracting officer considered when determining the lowest quoted amount.

(End of provision)

3052.215-70

Key personnel or facilities.

This text is long and has been trimmed here. Open the source document for the complete record.