# Department of Education Acquisition Regulation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-20198 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 23, 2010 - **Citation:** 75 FR 51884 ## Text DEPARTMENT OF EDUCATION 48 CFR Chapter 34 [Docket ID ED-2010-OCFO-0015] RIN 1890-AA16 Department of Education Acquisition Regulation AGENCY: Office of the Chief Financial Officer, Department of Education (Department). ACTION: Notice of proposed rulemaking. SUMMARY: The Secretary proposes to reissue the Department of Education Acquisition Regulation (EDAR) in order to update it to accurately implement the current Federal Acquisition Regulation (FAR) and Department policies. DATES: We must receive your comments on or before September 22, 2010. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments. • Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “How To Use This Site.” • Postal Mail, Commercial Delivery, or Hand Delivery. If you mail or deliver your comments about these proposed regulations, address them to Nicole Evans, U.S. Department of Education, 400 Maryland Avenue, SW., room 7164, Potomac Center Plaza, Washington, DC 20202-4200. Privacy Note: The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available on the Internet. FOR FURTHER INFORMATION CONTACT: Nicole Evans. Telephone: (202) 245-6172 or via Internet: Nicole.Evans@ed.gov. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339. Individuals with disabilities may obtain this document in an accessible format ( e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: Invitation to Comment We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations. We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program. During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments, in person, in room 7137, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays. Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT . Background The EDAR was last updated in 1987. In the years since then, the FAR has changed substantially. These changes caused a need for the Department to update the EDAR so that it correctly implements the FAR and reflects Department policy. Significant Proposed Regulations We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect. Generally, these proposed regulations are issued under the authority of 5 U.S.C. 301, which authorizes the heads of agencies to issue regulations governing the agency, and 20 U.S.C. 1018a, which authorizes procurement flexibility for the performance based organization (PBO), the Office of Federal Student Aid (FSA), for the delivery of Federal student financial assistance. We use the term PBO or FSA when referring to FSA in this preamble. Subchapter A—General Part 3401 ED Acquisition Regulation System FAR: FAR Part 1 (Federal acquisition regulations system) sets forth the purpose, authority, and structure of the FAR, authorizes agency FAR supplements and deviations from the FAR, and discusses career development, contracting authority, and responsibilities. Current Regulations: The current EDAR predates the procurement flexibility authorized by 20 U.S.C. 1018a and contains outdated information on the location of regulations and on the roles and responsibilities within the Department. The current regulations also do not include a section on ratification of unauthorized commitments or on the nomination and appointment of contracting officer's representatives. Proposed Regulations: The proposed regulations would modify 3401.104 (Applicability) to add subparagraph (b) explaining that the PBO has specific contracting authority. Proposed subparagraph (c) would add an explanation that when using non-appropriated funds the Department will follow the FAR and EDAR to the maximum extent practicable. We are proposing to revise 3401.105-3 (Copies) to reflect the current method for obtaining copies of this regulation. We are also proposing to revise 3401.3 (Agency acquisition regulations) to add two paragraphs addressing policy regarding the agency's supplementation of the FAR and explaining how the EDAR is published and codified. Proposed changes to 3401.4 (Deviations) would make the Senior Procurement Executive (SPE) the approving official for individual deviations to the FAR and EDAR (3401.403), and the Chief Acquisition Officer (CAO) the approving official for class deviations (3401.404). We are further proposing to revise 3401.601 (General) to explain the current delegation of contracting authority in the Department. Proposed 3401.602-3 (Ratification of unauthorized commitments) would outline the Department's policy and procedures on ratifying unauthorized commitments. Proposed 3401.670 (Nomination and appointment of contracting officer's representatives (CORs)) would add information on nominating and appointing contracting officer's representatives (CORs). Proposed 3401.670-3 provides for Contracting Officers to insert a clause concerning CORs in all solicitations and contracts for which a COR will be (or is) appointed. Reasons: The proposed changes to this part provide the reference to the PBO statute authorizing the PBO's procurement flexibilities and provide more information to the contracting community and the public about the EDAR, certain Department policies and procedures, and the roles and responsibilities of different contracting personnel in the Department. Part 3402 Definitions of Words and Terms FAR: FAR Part 2 (Definitions of words and terms) defines relevant words and terms used in the FAR. Current Regulations: The current EDAR's part 3402 defines only two terms, Head of the Contracting Activity and Procurement Executive, and prescribes the use of a definitions clause. Proposed Regulations: We are proposing to revise 3402.101 (Definitions) to add definitions for Chief Acquisition Officer, Chief of the Contracting Office, Contracting Officer's Representative, Head of the Contracting Activity, Performance-Based Organization, Senior Procurement Executive, and Department or ED. Proposed 3402.101-70 (Abbreviations and acronyms) would add twelve abbreviations and acronyms relevant to the EDAR. Reasons: The proposed changes to this part would clarify the terminology and the definitions of terms used in the EDAR. Part 3403 Improper Business Practices and Personal Conflicts of Interest FAR: FAR Part 3 (Improper business practices and conflicts of interest) regulates standards of conduct, gratuities to government personnel, reports of suspected antitrust violations, contingent fees, and contracts with government employees or organizations owned or controlled by them. Current Regulations: The current EDAR requires Department personnel to report violations of the gratuities clause, antitrust violations, and misrepresentation or violation of the covenant against contingent fees. The current EDAR specifies that the approving official for contracts with government employees or organizations controlled by them is the Deputy Under Secretary for Management. Proposed Regulations: We are proposing to revise 3403.6 (Contracts with government employees or organizations owned or controlled by them) to change the approving official for exceptions to the policy in FAR 3.601 (prohibiting contracts with Government employees or organizations owned or controlled by them) to the Head of Contracting Activity (HCA). Reasons: The proposed revisions identify the official delegated the authority to authorize exceptions to the policy in FAR 3.601. Subchapter B—Competition and Acquisition Planning Part 3405 Publicizing Contract Actions FAR: FAR Part 5 (Publicizing contract actions) regulates how agencies are to disseminate information on contract actions. Current Regulations: The current EDAR contains provisions on notices to perform market surveys and paid advertisements. The regulations do not implement the procurement flexibility authorized by the PBO statute. Proposed Regulations: We are proposing to revise 3405.2 (Synopses of proposed contract actions) to add four new sections implementing the PBO's authorities related to publicizing, including the PBO's authority related to modular contracting (3405.202 Exceptions and 3405.205 Special Situations), reduced response timeframes (3405.203 Publicizing and response time), and two-phase source selection (3405.207 Preparation and transmittal of synopses). We are also proposing to add requirements to 3405.270 (Notices to perform market surveys) to require the contracting officer to include additional information in notices of proposed contract actions when anticipating a sole source contract. Reasons: The proposed changes to 3405.2 would implement the PBO's authorities for modular contracting, which mandate notice of requirements under section 1018a(g)(5)(A-C). The proposed change to 3405.270 would increase availability of information to the marketplace when the Department anticipates a sole source contract. Part 3406 Competition Requirements FAR: FAR Part 6 (Competition requirements) regulates how agencies compete various contract actions. Current Regulations: The current EDAR does not address this part of the FAR. Proposed Regulations: Proposed 3406.001 (Applicability) would state that this part of the FAR does not apply to modular contracting performed by the PBO. Proposed 3406.3 (Other than full and open competition) would add new 3406.302-5 (Authorized or required by statute) stating that the PBO can award noncompetitive awards as part of its modular contracting authority. Proposed 3406.5 (Competition advocates) would identify the Department's Competition Advocate. Reasons: The proposed change to add this part would implement the PBO's modular contracting authority authorized by statute and identify the Competition Advocate mandated in FAR 6.5. Part 3408 Required Sources of Supplies and Services FAR: FAR Part 8 (Required sources of supplies and services) mandates certain sources and details how agencies must use those sources. Current Regulations: The current EDAR requires a clause in subpart 3408.8 (Acquisition of printing and related supplies) and addresses paperwork reduction in part 3427. Proposed Regulations: The proposed changes to 3452.208-71 (Printing) would update the definition of “unit” to match the definition in the Government Printing and Binding Regulations. Specifically, the allowable size counted as one unit is changed from an 8.5″ x 11″ page to an image size of 10.75″ x 14.25″ on an 11″ x 17″ page. The proposed inclusion of 3408.871 (Paperwork Reduction) in this part would move the prescription for the paperwork reduction clause to the appropriate section of the EDAR. Reasons: The proposed changes would update the EDAR to match the Government Printing and Binding Regulations and the FAR structure. Part 3409 Contractor Qualifications FAR: FAR Part 9 (Contractor Qualifications) includes sections on debarment, suspension, and ineligibility, as well as organizational and consultant conflicts of interest. Current Regulations: The current EDAR does not adequately cover the topics of debarment, suspension, and ineligibility or organizational conflict of interest. Proposed Regulations: The proposed changes in 3409.4 (Debarment, suspension, and ineligibility) and 3409.5 (Organizational and consultant conflicts of interest) would provide additional details regarding these issues. Proposed 3409.401 (Applicability) would indicate that this subsection does not apply to non-procurement debarment and suspension. Proposed 3409.403 (Definitions) would designate the Senior Procurement Executive as the Department's debarring official and suspending official. The proposed changes to 3409.406-3 (Procedures) would provide additional detail regarding the steps involved in the debarment process. Proposed 3409.407-3 (Procedures) would provide similar, additional detail on the steps involved in the suspension process. We are proposing to revise 3409.506 (Procedures) to give the HCA flexibility to terminate or not terminate contracts in cases of conflict of interest, and designate the HCA, rather than the Senior Procurement Executive, as the authorized reviewer and decision maker in such matters. We are proposing to add 3409.507 (Solicitation provision and contract clause), to add prescriptions requiring contracting officers to include the provision in 3452.209-70 (Conflict of interest certification) and the clause at 3452.209-71 (Conflict of interest) in all solicitations and contracts, respectively, for services above the simplified acquisition threshold. We are proposing to add 3409.570 (Certification at or below the simplified acquisition threshold), which describes the conflict of interest certification that contractors make when entering into a contract with the Department at or below the simplified acquisition threshold. Reasons: The proposed changes to the regulations would more clearly and completely describe agency procedures that implement the sections of the FAR pertaining to suspension, debarment, and conflicts of interest. Publication of agency procedures on these matters would be beneficial to the contractor community. Part 3412 Acquisition of Commercial Items FAR: FAR Part 12 (Acquisition of commercial items) describes the methods of purchasing commercial products and services. Current Regulations: The current EDAR does not address this part of the FAR. Proposed Regulations: Proposed 3412.203 (Procedures for solicitation, evaluation, and award) would specify that the PBO has the authority to use simplified acquisition procedures for commercial items without regard to dollar or timeframe limitations. Proposed 3412.302 (Tailoring of provisions and clauses for the acquisition of commercial items) would identify the HCA as the person who is authorized to approve waivers allowing COs to tailor provisions and clauses for the acquisition of commercial items. Reasons: These proposed changes implement the PBO's contracting authority, as well as identify the individual authorized to provide the waivers required in FAR 12.302 when a Contracting Officer needs to tailor provisions and clauses for the acquisition of commercial items. Subchapter C—Contracting Methods and Contract Types Part 3413 Simplified Acquisition Procedures FAR: FAR Part 13 (Simplified acquisition procedures) allows and describes streamlined ways of purchasing goods and services below the simplified acquisition threshold. Current Regulations: The current EDAR includes 3413.107 (Solicitation and evaluation of quotations), which requires use of certain FAR Part 15 procedures when conducting a simplified acquisition. Proposed Regulations: We propose to remove 3413.107 (Solicitation and evaluation of quotations) in order to eliminate the requirement to use certain part 15 procedures when conducting a simplified acquisition. Proposed 3413.003 (Policy) would explain the PBO's authority to use simplified acquisition procedures for commercial items without regard to the dollar or timeframe limitations in FAR 13.5 and explains the PBO's authority to use simplified acquisition procedures for competitively awarded noncommercial items contracts up to $1,000,000 when the procurement is a small business set-aside. Proposed 3413.303 would allow use of blanket purchase agreements for commercial items up to the threshold of the test program for certain commercial items in FAR 13.500(a). Reasons: The proposed updates to this part would improve the Department's implementation of FAR Part 13 by removing overly restrictive regulations and by implementing the PBO's authority in section 1018a(e). The current 3413.107 (Solicitation and evaluation of quotations) requires the contracting officer to use FAR Part 15 (Contracting by negotiation) procedures in simplified acquisitions. The simplified acquisition procedures in the FAR are designed to maximize the Department's flexibility. The proposed addition in 3413.303 would allow the Department to use a procurement flexibility authorized in the FAR by allowing use of blanket purchase agreements for commercial items over the simplified acquisition threshold, under the test program for certain commercial items in FAR 13.5. Part 3414 Sealed Bidding FAR: FAR Part 14 (Sealed bidding) describes the rules and requirements for using sealed bidding as a method of acquisition. Current Regulations: The current EDAR identifies the HCA as the official authorized to make determinations under FAR 14.407-3. Proposed Regulations: We propose to renumber 3414.407 (Mistakes in bids) to match the FAR numbering system. Reasons: This proposed change would update the EDAR to follow the FAR numbering scheme. Part 3415 Contracting by Negotiation FAR: FAR Part 15 (Contracting by negotiation) sets forth procedures for acquiring goods and services through negotiated procurement. Current Regulations: The current EDAR contains outdated requirements on order of precedence and setting profit prenegotiation objectives, and does not address the PBO's authorities, such as two-phase source selection. Proposed Regulations: The proposed change to 3415.2 (Solicitation and receipt of proposals and information) would renumber the current 3415.407 (Solicitation provisions) to 3415.209 (Solicitation provisions) to match the FAR numbering of the relevant information. The proposed change to 3415.209(a) would reflect the new numbering of the clause referenced in the paragraph (52.215-1(e)). Removal of 3415.4 (Solicitation and receipt of proposals and quotations) would eliminate the prescriptive language for an order of precedence clause (3452.215-33). Proposed 3415.302-70 (Two-phase source selection) would implement the PBO's authority to use a two-phase process to solicit offers and select a source for award. We are proposing to revise 3415.606 (Agency procedures) to add an HCA-designee as a possible point of contact for coordination of unsolicited proposals. Removal of 3415.9 (Profit) would eliminate the requirement for contracting officers to use a certain framework when developing prenegotiation profit objectives. Reasons: The proposed changes to this section would implement section 1018a(d), eliminate unnecessary requirements on the development of prenegotiation profit objectives, and eliminate unnecessary variation from the FAR-provided clause on order of precedence. Part 3416 Types of Contracts FAR: FAR Part 16 (Types of contracts) describes the various contract types and considerations in determining the type of contract to use for a particular acquisition. Current Regulations: The current EDAR includes requirements relating to negotiated overhead rates in agreements, under FAR 16.7, as well as requirements we propose to leave unchanged, dealing with cost-sharing contracts, contract clauses on cost, and letter contracts. Proposed Regulations: Proposed 3416.402-2 (Performance incentives) would authorize the Department to use a type of contracting called “award-term contracting” for performance-based contracts or task orders. This section refers the reader to EDAR 3416.470 for the definition of award-term contracting and implementation guidelines. Proposed 3416.470 (Award-term contracting) would establish policy and procedures for using this type of incentive contracting. We are proposing to remove 3416.7 (Agreements), which in 3416.701 had provided the prescriptive language for the clause at 3452.216-71 (Negotiated Overhead Rates—Fixed) and in 3416.702 had addressed negotiated overhead rates for Basic Agreements. Reasons: The proposed addition of the section on award-term contracting would provide the CO with guidance on how to use existing procurement flexibilities allowed under the FAR. The proposed removal of 3416.7 would eliminate unnecessary regulation. The inclusion of overhead rates is permitted by the FAR at the contracting officer's discretion, so the prescription at 3416.7 is unnecessary. Part 3417 Special Contracting Methods FAR: FAR Part 17 (Special contracting methods) describes requirements for options and interagency acquisitions under the Economy Act. Current Regulations: The current EDAR includes one paragraph in this part, under 3417.207 (Exercise of options), which specifies that “after funds become available” means “after funds become available to the contracting officer for obligation.” Proposed Regulations: We propose to add 3417.204 (Contracts), 3417.5 (Interagency acquisition under the Economy Act), and 3417.70 (Modular contracting). We also propose to modify 3417.207 (Exercise of options). Proposed 3417.204 (Contracts) would provide that the Department may enter into contracts that exceed the five-year limitation specified in FAR 17.204(e), subject to approval by the HCA for individual contracts or the SPE for classes of contracts. Proposed 3417.207 (Exercise of options) would add paragraph (f)(2) to explain that the government can accept price reductions offered by contractors at any time during performance of a contract, and that these reductions are not renegotiations if they were not requested by the government. We propose to add 3417.5 (Interagency acquisitions under the Economy Act), which would address interagency acquisitions procured by the PBO under section 1018a(j). Proposed 3417.70 (Modular contracting) would detail the PBO's authority to perform successive procurements for systems. Reasons: FAR 17.204(e) allows agencies to approve contract periods for longer than five years. Implementing this regulation in the EDAR would allow the Department more flexibility in contracting. The other proposed changes to this part would implement the PBO's modular contracting authority. Subchapter D—Socioeconomic Programs 3419 Small Business Programs FAR: FAR Part 19 (Small Business Programs) describes requirements for and availability of contracting preference programs for small businesses. Current Regulations: The current regulations are outdated and address parts of the FAR that no longer exist. Proposed Regulations: Proposed 3419.201-70 (Office of Small and Disadvantaged Business Utilization (OSDBU)) would describe the role of the OSDBU in implementing FAR 19.201. Proposed 3419.502-4 (Methods of conducting set-asides) would allow the PBO to procure noncommercial services using simplified acquisition procedures if the procurement does not exceed $1,000,000, is conducted as a small business set-aside, the price charged for supplies associated with the services procured is expected to be less than 20 percent of the total contract price, and the contract is not awarded on a sole-source basis and is not for construction. We are proposing to remove 3419.7 (Subcontracting with Small Business and Small Disadvantaged Business Concerns) and 3419.8 (Contracting with the Small Business Administration (The 8(a) Program). Reasons: These proposed changes would update the Department's implementation of the FAR and include the PBO's contracting authorities under the PBO's authorizing statute, section 1018a(e) (Use of simplified procedures for commercial items). The proposed removal of 3419.7 would eliminate requirements that are redundant with current FAR requirements. EDAR 3419.705-2 (Determining the need for a subcontracting plan) includes instructions to the contracting officer on determining the dollar threshold for requirement of a subcontracting plan. The FAR adequately addresses this issue in 19.705-2 (Determining the need for a subcontracting plan). EDAR 3419.708 (Solicitation provisions and contract clauses) currently requires the contracting officer to include in solicitations that include clause 52.219-9 a notification that advises prospective offerors that subcontracting plans may be requested from all concerns determined to be in the competitive range. However, the FAR notifies offerors of the requirements for submitting subcontracting plans in the clauses requiring submission of the plans (52.219-9, Small business subcontracting plan, and its alternates I and II). The proposed removal of 3419.8 would eliminate this subpart that implemented FAR 19.8, which has changed so significantly as to make 3419.8 irrelevant. Section 3419.801 currently refers to a section of the FAR (19.801) that is no longer in use. Section 3419.870 currently details a source selection procedure no longer relevant due to the detailed source selection procedures in the updated FAR 19.8. 3422 Application of Labor Laws to Government Acquisitions FAR: FAR Part 22 (Application of labor laws to government acquisitions) describes various laws, policies, and prohibitions governing Federal acquisition. Current Regulations: The current EDAR does not address this part of the FAR. Proposed Regulations: We propose to add 3422.10 (Service Contract Act of 1965, as amended) to explain that the 5-year limitation in the Service Contract Act of 1965, as amended (Service Contract Act), applies to each period of the contract individually, not to the cumulative period of base and option years, and that accordingly no Department contract will have a base or option period longer than five years. Reasons: This proposed language is based on the Department of Labor's definition of “contract” as it applies to the Service Contract Act. This definition is set forth in the Department of Labor's regulations at 29 CFR 4.143(b) and 29 CFR 4.145(a), which state that an extension of a term of a contract—by option or other means—is a wholly new contract with respect to the Service Contract Act. 3424 Protection of Privacy and Freedom of Information FAR: FAR Part 24 (Protection of privacy and freedom of information) provides guidance on protection of individual privacy and the Freedom of Information Act. Current Regulations: The current EDAR includes implementing language for protection of individual privacy, and directs the public to the Department's regulations implementing the Freedom of Information Act. Proposed Regulations: We propose to add 3424.170 (Protection of human subjects) which would prescribe a solicitation provision and contract clause intended to protect the personal information of anyone involved in research activities of the Department. We also propose to add 3424.203 (Policy) to state the Department's policy on Freedom of Information Act requests and to provide prescriptive language for clause 3452.224-70, (Release of information under the Freedom of Information Act). Reasons: The proposed changes are intended to protect personally identifiable information and to better inform the public of the Department's policy with respect to the Freedom of Information Act. 3425 Foreign Acquisition FAR: FAR Part 25 (Foreign acquisition) implements the Buy American Act. Current Regulations: The current EDAR designates the HCA as the approving official for determinations relating to the Buy American Act, and also implements a section of the FAR that no longer exists. Proposed Regulations: We propose to remove 3425.2 (Balance of payments program) to eliminate outdated language. Reasons: This proposed change is based on a FAR change that eliminated the need for this section of the EDAR. Subchapter E—General Contracting Requirements 3427 Patents, Data, and Copyrights FAR: FAR Part 27 (Patents, data, and copyrights) regulates patents, copyrights, rights in data, and foreign license and technical agreements under Federal contracts. Current Regulations: The current EDAR includes in this part prescriptions for clauses on publication and publicity, advertising of awards, and paperwork reduction. Proposed Regulations: We propose to add 3427.409 (Solicitation provisions and contract clauses) to consolidate the prescriptions for clauses 3452.227-70 (Publication and publicity) and 3452.227-71 (Advertising of awards). Proposed 3427.409(c) would provide the prescriptive language for clause 3452.227-72 (Use and non-disclosure agreement) and proposed 3427.409(d) would provide the prescriptive language for clause 3452.227-73 (Limitations on the use or disclosure of Government-furnished information marked with restrictive legends). As previously discussed, we are proposing to move the prescription for use of the clause at 3452.208-72 (Paperwork reduction) to 3408.871. Reasons: The consolidation of the prescriptive language for clauses 3452.227-70 (Publication and publicity) and 3452.227-71 (Advertising of awards) is intended to bring clarity to this part and to make the EDAR structure consistent with the FAR structure. The proposed addition of the Use and non-disclosure agreement and the Limitations on the use or disclosure of Government-furnished information marked with restrictive legends clauses, 3452.227-72 and 3452.227-73, respectively, is intended to protect data from unauthorized disclosure. Moving the Paperwork reduction clause prescription from 3427.471 to 3408.871 (Paperwork reduction) would make the EDAR structure consistent with the FAR structure. 3432 Contract Financing FAR: FAR Part 32 (Contract financing) regulates the types of financing the Government may make available to contractors, including advance payments. Current Regulations: The current EDAR includes a prescription for a “Method of payment” clause in 3432.170 (Method of payment), includes designation of the HCA as the official authorized to authorize types of financing in 3432.4 (Advance Payments), and includes instructions to contractors in 3432.704 (Limitation of cost or funds). The current EDAR also includes a prescription for clause 3452.232-70 (Prohibition against the use of ED funds to influence legislation or appropriations) in 3432.770 (Prohibition against the use of ED funds to influence legislation or appropriations), and includes a prescription for an incremental funding provision in 3432.771 (Provision for incremental funding). Proposed Regulations: We are proposing to remove 3432.170 (Method of payment) to eliminate outdated regulations. We are proposing to add 3432.705-2 (Clauses for limitation of cost or funds), which prescribes the use of clause 3452.232-70 (Limitation of cost or funds) and the provision in 3452.232-71 (Incremental funding). We are proposing to remove the current 3432.704 (Limitation of cost or funds), 3432.770 (Prohibition against the use of ED funds to influence legislation or appropriations), and 3432.771 (Provision for incremental funding). Reasons: The proposed removal of the Method of payment clause is intended to eliminate outdated information about being paid by check or wire transfer. The Department no longer pays contractors by check or wire transfer. The proposed addition of 3432.705-2 and removal of current 3432.704 and 3432.771 reorganizes and updates the information for incrementally funded contracts. The current EDAR section on Limitation of cost or funds (3432.704) also contains requirements for contractors to follow during performance of incrementally funded contracts. Requirements of this type should be communicated to contractors in contract clauses, not in the body of the regulation. Therefore, we are proposing to include these requirements in clause 3452.232-70 (Limitation of cost or funds) instead of in the current section of the EDAR (3432.704). The proposed removal of 3432.770 would eliminate a redundant prohibition on using ED funds in lobbying. The restrictions in FAR Part 31 already prohibit contractors from spending Government funds on these activities. 3433 Protests, Disputes, and Appeals FAR: FAR Part 33 (Protests, disputes, and appeals) sets forth the rules for handling these types of actions. Current Regulations: The current EDAR includes information on protests, disputes, and appeals, and references outdated information on a board of contract appeals that no longer exists. Proposed Regulations: We propose to remove unnecessary regulations currently in 3433.1 (Protests) and 3433.2 (Disputes and appeals). We propose to add a paragraph at 3433.103 to designate the HCA as the agency official identified in FAR 33.103(f)(3). Reasons: The proposed changes would eliminate outdated and unnecessary information. The information contained in the current 3433.103 (Protests to the agency) is redundant with the information contained in FAR 33.103 (Protests to the agency). The current 3433.2 (Disputes and appeals) references a Board of Contract Appeals that no longer exists. Subchapter F—Special Categories of Contracting 3437 Service Contracting FAR: FAR Part 37 (Service contracting) regulates various types of service contracts and performance-based acquisition. Current Regulations: The current EDAR contains 3437.270 (Consulting services reporting clause), which was eliminated by a class deviation in 1988. The EDAR also contains 3437.271 (Services of consultants clause), which prescribes the use of clause 3452.237-71 (Services of consultants) in all cost-reimbursement contracts and solicitations. This clause requires the contractor to obtain the contracting officer's written approval to use certain consultants under their contract. Proposed Regulations: We propose adding 3437.170, which would require the inclusion of language set forth in clause 3452.237-71 (Observance of administrative closures) in all solicitations and contracts for services. We propose removing 3437.270 (Consulting services reporting clause). We propose changing the number of 3437.271 (Services of consultants clause) to 3437.270, because that number would be available if the current 3437.270 is removed. We propose changing the prescription in 3437.270 (Services of consultants clause) to exclude FSA from the requirements of the clause. Finally, we propose adding 3437.670 (Contract type) which would state that award-term contracting can be used in performance-based contracts and orders, if approved by the HCA. Reasons: The proposed addition of the clause at 3452.237-71 (Observance of administrative closures) is intended to clarify the Department's policy on whether contractor work is required when the Government is closed. The proposed change to the prescription for use of the clause at 3452.237-70 (Services of consultants) is intended to implement section 1018a(c). The proposed new subsection on contract type is intended to authorize the use of award-term contracting. This change is necessary because although the current EDAR does not address this subject, award-term contracting is allowed under the FAR and used across the government. This change to the EDAR would clarify that the Department allows and intends for COs to use this procurement flexibility. 439 Acquisition of Information Technology FAR: FAR Part 39 (Acquisition of information technology) regulates the acquisition of information technology. Current Regulations: The current EDAR does not address this FAR part. Proposed Regulations: We propose adding 3439.70 (Department requirements for the acquisition of information technology). In this subpart, we propose adding 3439.701 (Internet protocol version 6) to require the contracting officer to insert the clause at 3452.239-70 (Internet protocol version 6 (IPv6)), in all solicitations and resulting contracts for hardware and software. This clause requires contractors to comply with certain standard protocols when developing software or systems. We are proposing to add 3439.702 (Department security requirements), to require the contracting officer to include the Notice to offerors of Department security requirements (3452.239-71) provision and the clause at 3452.239-72 (Department security requirements) when contractor employees will have access to Department-controlled facilities or space, or when the work (wherever located) involves the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information. Finally, we are proposing the addition of 3439.703 (Federal desktop core configuration (FDCC) compatibility), which would require the contracting officer to include the clause at 3452.239-73 (Federal desktop core configuration (FDCC) compatibility) in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration. This clause requires software used on FDCC computers to be FDCC-compatible. Reasons: These proposed changes are intended to implement multiple information technology initiatives and standards developed in the past several years by the information technology industry and adopted by the Government, including the Office of Management and Budget. Subchapter F—Contract Management 3442 Contract Administration and Audit Services FAR: FAR Part 42 (Contract administration and audit services) requires use of a contractor performance information system, contract monitoring, and governs other contract administration functions. Current Regulations: The current EDAR contains an obsolete delegation of authority in 3442.705 (Final indirect cost rates), a section at 3442.7001 prescribing the use of clause 3452.242-72 (Withholding of contract payments), and sections in 3443.7002 on the Litigation and claims clause, 3442.7003 regarding the Delays clause, and 3442.71 on the Department's policy on accessibility to persons with disabilities. Proposed Regulations: We are proposing to remove 3442.7 (Indirect cost rates) which had delegated authority to establish final indirect cost rates to the Chief of the Cost Determination Branch in Grants and Contracts Services. We are also proposing to remove 3442.7001 (Withholding of contract payments clause) and to renumber 3442.7002 (Litigation and claims clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002. We propose no change to 3442.71, Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities. Reasons: These proposed changes are intended to eliminate outdated information. The proposed removal of 3442.7 (Indirect cost rates) would remove the outdated delegation to establish final indirect cost rates. The FAR allows the contracting officer to make this determination (FAR 42.705). We are proposing to remove 3442.7001 (Withholding of contract payments clause) because the language in this section allows the Department to withhold contract payments if any report required to be submitted by the contractor is overdue, or if the contractor fails to perform or deliver work or services as required by the contract. The Department's ability to withhold payment for non-performance is established in existing FAR clauses, based on the specific contract type and arrangement, and does not need to be repeated in the EDAR. We are proposing to renumber 3442.7002 (Litigation and claims clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002, to use the number that would be available if the current 3442.7001 (Withholding of contract payments clause) is removed. 3443 Contract Modifications FAR: FAR Part 43 (Contract modifications) provides guidance and requirements for changes to contracts. Current Regulations: The current EDAR in 3443.106 (Contract clause) requires the inclusion of EDAR clause 3452.243-70 (Key personnel) in all cost-reimbursement contracts. Proposed Regulations: We propose to renumber 3443.106 as 3443.107, to better align the EDAR numbering with the FAR. In addition, we propose a change to the language in newly renumbered 3443.107 to provide that the language in 3452.243-70 (Key personnel) would need to be included only in appropriate contracts. Reasons: The current requirement to include the Key personnel clause in all cost-reimbursement contracts does not allow for contracting officer discretion in the use of this clause. The clause requires contractors to obtain contracting officer approval before changing the personnel assigned to the contract and designated in this clause as “key personnel.” In some contracts, this designation and approval process is important to the success of the contract and to the Department's ability to adequately monitor the contract. In some contracts, this requirement is unnecessarily cumbersome, as the designation and approval process is not important to the success of the contract or the Department's ability to adequately monitor the contract. The new prescription would require the contracting officer to insert a clause substantially the same as the Key personnel clause “in all solicitations and resultant contracts in which it will be essential for the contracting officer to be notified that a change of designated personnel is to take place by the contractor.” This change in prescription would allow greater discretion in the use of this clause. Subchapter H—Clauses and Forms 3452 Solicitation Provisions and Contract Clauses FAR: FAR Part 52 (Solicitation provisions and contract clauses) is the part of the FAR containing all FAR provisions and clauses required or recommended for inclusion in solicitations and contracts, as prescribed in the preceding parts of the FAR. Current Regulations: The current EDAR includes text for twenty-two provisions and clauses, all of which are prescribed in the preceding parts of the EDAR. Proposed Regulations: We propose to add the Contracting Officer's Representative clause at 3452.201-70, to define the role and responsibility of that position. The proposed Definitions—Department of Education clause at 3452.202-1 would be revised to remove the specific definitions in the current clause (“Secretary”, “Head of the Agency”, “contracting officer”, “Contracting Officer's Technical Representative”, “Department or ED”, and “subcontract”, and, instead, reference the FAR definitions at 2.101 and the EDAR definitions at 3402.101. We are proposing renumbering the Paperwork Reduction Act clause from 3452.227-71 to 3452.208-72. We are proposing a new Conflict of interest certification provision in 3452.209-70, which would require offerors to certify that they have identified actual or potential conflicts of interest. We are proposing a new Conflict of interest clause at 3452.209-71, which would provide for potential criminal penalties for false certification regarding conflict of interest. We are proposing to remove the Order of precedence clause at 3452.215-33, and instead use FAR clause 52.215-8 (Order of precedence—uniform contract format). We are proposing to remove the Negotiated overhead rates—Fixed clause at 3452.216-71, which specifies procedures and policy for applying indirect rates to the contract. Applying indirect rates is adequately addressed in the FAR. We are proposing to add the Award-Term clause at 3452.216-71, which would provide information on the duration of an award-term contract, require an award-term plan, and provide guidance on making award determinations and on remedies available to contractors in award-term situations. We are adding the Release of information under the Freedom of Information Act clause 3452.224-70, which would advise contractors of potential releases of information pursuant to the Freedom of Information Act. The proposed Notice about research activities involving human subjects provision in 3452.224-71 and the proposed Research activities involving human subjects clause at 3452.224-72, would address the requirements found in 34 CFR part 97. We are proposing to add the Use and non-disclosure agreement clause at 3452.227-72, which would protect contractor data from unauthorized disclosure by requiring the intended recipient to sign a use and non-disclosure agreement before receiving any proprietary data, technical data, or computer software delivered to the Government with restrictions on use, modification, reproduction, release, performance, display, or disclosure. We are proposing to remove the outdated Prohibition against the use of ED funds to influence legislation or appropriations clause at 3452.232-70. The proposed Limitation of cost or funds clause at 3452.232-70 would provide the format and content of information to be provided by the contractor in cases of cost overruns. We are proposing to revise the Incremental funding clause at 3452.232-71 by removing paragraph (b) of this clause, which had indicated that “the Limitation of Cost clause in FAR 52.232-20 shall supersede the Limitation of Funds clause in the event the contract becomes fully funded.” The Limitation of cost clause is not prescribed for inclusion in an incrementally funded contract, so this paragraph is unnecessary. We are proposing to remove the Method of payment clause at 3452.232-72, which indicates that payment under the contract will be made either by check or by wire transfer, because the Department no longer makes payments in this manner. The proposed amendment to paragraph (b) of the Services of consultants clause at 3452.237-70 would raise the default daily rate for consultants where contracting officer approval is required to an amount greater than $800. We are proposing to add the Observance of administrative closures clause at 3452.237-71 to clarify the Department's policy on whether contractor work is required when the Government is closed. We are proposing to add the Internet protocol version 6 (IPv6) clause at 3452.239-70 to incorporate the Department's requirement for compliance with this protocol. We are proposing to add the Notice to offerors of Department security requirements provision in 3452.239-71 and the Department security requirements clause at 3452.239-72 to incorporate the Department's updated security requirements. We are proposing to add the Federal desktop core configuration (FDCC) compatibility clause at 3452.239-73 clause to incorporate the Department's requirement for compatibility with the FDCC. We are proposing to change the prescription reference for the Litigation and claims clause at 3452.242-70. We are proposing to reword and change the prescription reference for the Notice to the government of delays clause at 3452.242-71. We are proposing to leave unchanged the Accessibility of meetings, conferences, and seminars to persons with disabilities clause at 3452.242-73. We are proposing to amend the Key personnel clause at 3452.243-70, to provide for a listing of the labor category and name of key personnel to be listed in the contract. We are proposing to amend the Foreign travel clause at 3452.247-70 to add travel to Puerto Rico, the U.S. Virgin Islands, and other U.S. territories as instances of foreign travel. Reasons: The proposed changes to this part of the EDAR are consistent with the changes to the prescriptive language in the preceding parts, and would update the provisions and clauses to more accurately reflect current regulations and policy. Executive Order 12866 Under Executive Order 12866, the Secretary must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or local programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Secretary has determined that this regulatory action is not significant under section 3(f) of the Executive order. Potential Costs and Benefits This notice has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this proposed regulatory action. The potential costs associated with this proposed regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the EDAR effectively and efficiently. In assessing the potential costs and benefits—both quantitative and qualitative—of this proposed regulatory action, we have determined that the benefits of the proposed regulatory action justify the costs. We have determined, also, that this proposed regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions. Clarity of the Regulations Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following: • Are the requirements in the proposed regulations clearly stated? • Do the proposed regulations contain technical terms or other wording that interferes with their clarity? • Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity? • Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how? • What else could we do to make the proposed regulations easier to understand? To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the ADDRESSES section of this preamble. Regulatory Flexibility Act Certification Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq., as amended by the Small Business Regulatory Flexibility Act of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions), unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant impact on a substantial number of small entities. Pursuant to the Regulatory Flexibility Act, the Secretary certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. The rule would update the EDAR; it would not directly regulate any small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. Paperwork Reduction Act of 1995 These proposed regulations do not contain any information collection requirements. Intergovernmental Review The EDAR is not subject to Executive Order 12372 and the regulations in 34 CFR part 79. Assessment of Educational Impact In accordance with section 441 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available. Electronic Access to This Document You can view this document, as well as all other documents of this Department published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/fedregister. To use PDF you must have Adobe Acrobat Reader, which is available free at this site. Note: The official version of this document is the document published in the Federal Register . Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html. (Catalog of Federal Domestic Assistance Number does not apply.) List of Subjects in 48 CFR Chapter 34 Government procurement. Dated: August 6, 2010. Arne Duncan, Secretary of Education. For the reasons discussed in the preamble, the Secretary proposes to amend title 48 of the Code of Federal Regulations by revising chapter 34 to read as follows: TITLE 48—FEDERAL ACQUISITION REGULATIONS SYSTEM CHAPTER 34—DEPARTMENT OF EDUCATION ACQUISITION REGULATION PARTS 3400 to 3499 SUBCHAPTER A—GENERAL Sec. 3401 ED Acquisition regulation system 3402 Definitions of words and terms 3403 Improper business practices and personal conflicts of interest SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING 3405 Publicizing contract actions 3406 Competition requirements 3408 Required sources of supplies and services 3409 Contractor qualifications 3412 Acquisition of commercial items SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES 3413 Simplified acquisition procedures 3414 Sealed bidding 3415 Contracting by negotiation 3416 Types of contracts 3417 Special contracting methods SUBCHAPTER D—SOCIOECONOMIC PROGRAMS 3419 Small business programs 3422 Application of labor laws to government acquisitions 3424 Protection of privacy and freedom of information 3425 Foreign acquisition SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS 3427 Patents, data, and copyrights 3428 Bonds and insurance 3432 Contract financing 3433 Protests, disputes, and appeals SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING 3437 Service contracting 3439 Acquisition of information technology SUBCHAPTER G—CONTRACT MANAGEMENT 3442 Contract administration and audit services 3443 Contract modifications 3445 Government property 3447 Transportation SUBCHAPTER H—CLAUSES AND FORMS 3452 Solicitation provisions and contract clauses SUBCHAPTER A—GENERAL PART 3401—ED ACQUISITION REGULATION SYSTEM 3401.000 Scope of part. Subpart 3401.1—Purpose, Authority, Issuance 3401.104 Applicability. 3401.105 Issuance. 3401.105-2 Arrangement of regulations. 3401.105-3 Copies. Subpart 3401.3—Agency Acquisition Regulations 3401.301 Policy. 3401.303 Publication and codification. 3401.304 Agency control and compliance procedures. Subpart 3401.4—Deviations 3401.401 Definition. 3401.403 Individual deviations. 3401.404 Class deviations. Subpart 3401.5—Agency and Public Participation 3401.501 Solicitation of agency and public views. 3401.501-2 Opportunity for public comments. Subpart 3401.6—Career Development, Contracting Authority, and Responsibilities 3401.601 General. 3401.602-3 Ratification of unauthorized commitments. 3401.670 Nomination and appointment of contracting officer's representatives (CORs). 3401.670-1 General. 3401.670-2 Appointment. 3401.670-3 Contract clause. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. 3401.000 Scope of part. The Federal Acquisition Regulation System brings together, in title 48 of the Code of Federal Regulations, the acquisition regulations applicable to all executive agencies of the Federal government. This part establishes a system of Department of Education (Department) acquisition regulations, referred to as the EDAR, for the codification and publication of policies and procedures of the Department that implement and supplement the Federal Acquisition Regulation (FAR). Subpart 3401.1—Purpose, Authority, Issuance 3401.104 Applicability. (a) The FAR and the EDAR apply to all Department contracts, as defined in FAR Part 2, except where expressly excluded. (b) 20 U.S.C. 1018a provides the PBO with procurement authority and flexibility associated with sections (a)-(l) of the statute. (c) For non-appropriated fund contracts, the FAR and EDAR will be followed to the maximum extent practicable, excluding provisions determined by the contracting officer, with the advice of counsel, not to apply to contracts funded with non-appropriated funds. Adherence to a process similar to those required by or best practices suggested by the FAR will not confer court jurisdiction concerning non-appropriated funds that does not otherwise exist. 3401.105 Issuance. 3401.105-2 Arrangement of regulations. (c)(5) References and citations. The regulations in this chapter may be referred to as the Department of Education Acquisition Regulation or the EDAR. References to the EDAR are made in the same manner as references to the FAR. See FAR 1.105-2(c). 3401.105-3 Copies. Copies of the EDAR in the Federal Register and Code of Federal Regulations (CFR) may be purchased from the Superintendent of Documents, Government Printing Office (GPO), Washington, DC 20402. An electronic version of the EDAR is available for viewing at: http://www.ed.gov/policy/fund/reg/clibrary/edar.html. Subpart 3401.3—Agency Acquisition Regulations 3401.301 Policy. (a)(1) Subject to the authorities in FAR 1.301(c) and other statutory authority, the Secretary of Education (Secretary) or delegate may issue or authorize the issuance of the EDAR. It implements or supplements the FAR and incorporates, together with the FAR, Department policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between the Agency, including its suborganizations, and contractors or prospective contractors. The Head of Contracting Activity (HCA) for FSA may issue supplementary guidelines applicable to FSA. 3401.303 Publication and codification. (a) The EDAR is issued as chapter 34 of title 48 of the CFR. (1) The FAR numbering illustrations at FAR 1.105-2 apply to the EDAR. (2) The EDAR numbering system corresponds with the FAR numbering system. An EDAR citation will include the prefix “34” prior to its corresponding FAR part citation; e.g., FAR 25.108-2 would have corresponding EDAR text numbered as EDAR 3425.108-2. (3) Supplementary material for which there is no counterpart in the FAR will be codified with a suffix beginning with “70” or, in cases of successive sections and subsections, will be numbered in the 70 series (i.e., 71-79). These supplementing sections and subsections will appear to the closest corresponding FAR citation; e.g., FAR 16.4 (Incentive Contracts) may be augmented in the EDAR by citing EDAR 3416.470 (Award Term) and FAR 16.403 (Fixed-price incentive contracts) may be augmented in the EDAR by citing EDAR 3416.403- 70 (Award fee contracts). ( Note: These citations are for illustrative purposes only and may not actually appear in the published EDAR.) For example: FAR Is implemented as Is augmented as 15 3415 3415.70. 15.1 3415.1 3415.170. 15.101 3415.101 3415.101-70. 15.101-1 3415.101-1 3415.101-1-70. 15.101-1(b) 3415.101-1(b) 3415.101-1(b)(70). 15.101-1(b)(1) 3415.101-1(b)(1) 3415.101-1(b)(1)(70). (c) Activity-Specific Authority. Guidance that is unique to an organization with HCA authority contains that activity's acronym directly preceding the cite. The following activity acronyms apply: FSA—Federal Student Aid. 3401.304 Agency control and compliance procedures. (a) The EDAR is issued for Department acquisition guidance in accordance with the policies stated in FAR 1.301. The EDAR is subject to the same review procedures within the Department as other regulations of the Department. Subpart 3401.4—Deviations 3401.401 Definition. A deviation from the EDAR has the same meaning as a deviation from the FAR. 3401.403 Individual deviations. An individual deviation from the FAR or the EDAR must be approved by the Senior Procurement Executive (SPE). 3401.404 Class deviations. A class deviation from the FAR or the EDAR must be approved by the Chief Acquisition Officer (CAO). Subpart 3401.5—Agency and Public Participation 3401.501 Solicitation of agency and public views. 3401.501-2 Opportunity for public comments. Unless the Secretary approves an exception, the Department issues the EDAR, including any amendments to the EDAR, in accordance with the procedures for public participation in 5 U.S.C. 553. Comments on proposed Department notices of proposed rulemaking may be made at http://www.regulations.gov. Subpart 3401.6—Career Development, Contracting Authority, and Responsibilities 3401.601 General. (a) Contracting authority is vested in the Secretary. The Secretary has delegated this authority to the Chief Acquisition Officer (CAO). The Secretary has also delegated contracting authority to the Senior Procurement Executive (SPE), giving the SPE broad authority to perform functions dealing with the management direction of the entire Department's procurement system, including implementation of its unique procurement policies, regulations, and standards. Limitations to the extent of this authority and successive delegations are set forth in the respective memorandums of delegations. 3401.602-3 Ratification of unauthorized commitments. (a) Definitions. As used in this subpart, “commitment” includes issuance of letters of intent and arrangements for free vendor services or use of equipment with the promise or the appearance of commitment that a contract, modification, or order will, or may, be awarded. (b) Policy. (1) The HCA or Chief of the Contracting Office may, or may not, later ratify unauthorized commitments made by individuals without contracting authority or by contracting officers acting in excess of the limits of their delegated authority. Law and Regulation requires that only individuals acting within the scope of their authority make acquisitions. Within the Department, that authority vests solely with the Contracting Officer. Acquisitions made by other than authorized personnel are matters of serious misconduct. The employee may be held legally and personally liable for the unauthorized commitment. (2) Ratifications do not require concurrence from legal counsel. (3) The person who made the unauthorized commitment must prepare the request for approval that must be submitted through the person's manager to the approving official. (4) The Chief of the Contracting Office may review and sign or reject ratification requests up to $25,000. (5) All other ratification requests must be reviewed and signed or rejected by the HCA. 3401.670 Nomination and appointment of contracting officer's representatives (CORs). 3401.670-1 General. (a) Program offices must nominate personnel for consideration of COR appointment in accordance with the Department's COR Policy Guide. (b) The contracting officer must determine what, if any, duties will be delegated to a COR. (c) The contracting officer may appoint as many CORs as is deemed necessary to support efficient contract administration. (d) Only individuals with a written delegation of authority from a contracting officer may act in any capacity as a representative of that contracting officer, including any alternate, assistant, or back-up duties to the COR. (e) For all contracts in which an information technology system exists, the System Security Officer for that system will perform all responsibilities necessary for contractor access to the system. 3401.670-2 Appointment. COR appointments must be in accordance with the Department's COR Program Guide. 3401.670-3 Contract clause. Contracting Officers must insert a clause substantially the same as the clause at 3452.201-70 (Contracting Officer's Representative (COR)), in all solicitations and contracts for which a COR will be (or is) appointed. PART 3402—DEFINITIONS OF WORDS AND TERMS Subpart 3402.1—Definitions Sec. 3402.101 Definitions. 3402.101-70 Abbreviations and acronyms. Subpart 3402.2—Definitions Clause 3402.201 Contract clause. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3402.1—Definitions 3402.101 Definitions. As used in this chapter— Chief Acquisition Officer or CAO means the official responsible for monitoring the agency's acquisition activities, evaluating them based on applicable performance measurements, increasing the use of full and open competition in agency acquisitions, making acquisition decisions consistent with applicable laws, and establishing clear lines of authority, accountability, and responsibility for acquisition decision-making and developing and maintaining an acquisition career management program. Chief of the Contracting Office means an official serving in the contracting activity (CAM or FSA Acquisitions) as the manager of a group that awards and administers contracts for a principal office of the Department. See also definition of Head of the Contracting Activity or HCA below. Contracting Officer's Representative or COR means the person representing the Federal government for the purpose of technical monitoring of contract performance. The COR is not authorized to issue any instructions or directions that effect any increases or decreases in the scope of work or that would result in the increase or decrease of the cost or price of a contract or a change in the delivery dates or performance period of a contract. Department or ED means the United States Department of Education. Head of the Contracting Activity or HCA means those officials within the Department who have responsibility for and manage an acquisition organization and usually hold unlimited procurement authority. The Director, Federal Student Aid Acquisitions, is the HCA for FSA. The Director, Contracts and Acquisitions Management (CAM), is the HCA for all other Departmental program offices and all boards, commissions, and councils under the management control of the Department. Performance-Based Organization or PBO is the office within the Department that is mandated by Public Law 105-244 to carry out Federal student assistance or aid programs and report to Congress on an annual basis. It may also be referred to as “Federal Student Aid.” Senior Procurement Executive or SPE means the single agency official appointed as such by the head of the agency and delegated broad responsibility for acquisition functions, including issuing agency acquisition policy and reporting on acquisitions agency-wide. The SPE also acts as the official one level above the contracting officer when the HCA is acting as a contracting officer. 3402.101-70 Abbreviations and acronyms. CAO—Chief Acquisition Officer. CO—Contracting Officer. COR—Contracting Officer's Representative. FSA—Federal Student Aid. HCA—Head of the Contracting Activity. IPv6—Internet Protocol version 6. OMB—Office of Management and Budget. OSDBU—Office of Small and Disadvantaged Business Utilization. PBO—Performance-Based Organization (Federal Student Aid). RFP—Request for Proposal. SBA—Small Business Administration. SPE—Senior Procurement Executive. Subpart 3402.2—Definitions Clause 3402.201 Contract clause. The Contracting Officer must insert the clause at 3452.202-1 (Definitions—Department of Education) in all solicitations and contracts in which the clause at FAR 52.202-1 is required. PART 3403—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST Subpart 3403.1—Safeguards Sec. 3403.101 Standards of conduct. 3403.101-3 Agency regulations. Subpart 3403.2—Contractor Gratuities to Government Personnel 3403.203 Reporting suspected violations of the gratuities clause. Subpart 3403.3—Reports of Suspected Antitrust Violations 3403.301 General. Subpart 3403.4—Contingent Fees 3403.409 Misrepresentation or violations of the covenant against contingent fees. Subpart 3403.6—Contracts with Government Employees or Organizations Owned or Controlled by Them 3403.602 Exceptions. Authority: 5 U.S.C. 301. Subpart 3403.1—Safeguards 3403.101 Standards of conduct. 3403.101-3 Agency regulations. The Department's regulations on standards of conduct and conflicts of interest are in 34 CFR part 73, Standards of Conduct. Subpart 3403.2—Contractor Gratuities to Government Personnel 3403.203 Reporting suspected violations of the Gratuities clause. (a) Suspected violations of the Gratuities clause at FAR 52.203-3 must be reported to the HCA in writing detailing the circumstances. (b) The HCA evaluates the report with the assistance of the Designated Agency Ethics Officer. If the HCA determines that a violation may have occurred, the HCA refers the report to the SPE for disposition. Subpart 3403.3—Reports of Suspected Antitrust Violations 3403.301 General. Any Departmental personnel who have evidence of a suspected antitrust violation in an acquisition must— (1) Report that evidence through the HCA to the Office of the General Counsel for referral to the Attorney General; and (2) Provide a copy of that evidence to the SPE. Subpart 3403.4—Contingent Fees 3403.409 Misrepresentation or violations of the covenant against contingent fees. Any Departmental personnel who suspect or have evidence of attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or other violation of the Covenant Against Contingent Fees, must report the matter promptly in accordance with the procedures in 3403.203. Subpart 3403.6—Contracts With Government Employees or Organizations Owned or Controlled by Them 3403.602 Exceptions. Exceptions under FAR 3.601 must be approved by the HCA. SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING PART 3405—PUBLICIZING CONTRACT ACTIONS Subpart 3405.2—Synopses of Proposed Contract Actions Sec. 3405.202 Exceptions. 3405.203 Publicizing and response time. 3405.205 Special situations. 3405.207 Preparation and transmittal of synopses. 3405.270 Notices to perform market surveys. Subpart 3405.5—Paid Advertisements 3405.502 Authority. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3405.2—Synopses of Proposed Contract Actions 3405.202 Exceptions. (a)(15) FSA—Issuance of a synopsis is not required when the firm to be solicited has previously provided a module for the system under a contract that contained cost, schedule, and performance goals and the contractor met those goals. 3405.203 Publicizing and response time. (c) FSA—Notwithstanding other provisions of the FAR, a bid or proposal due date of less than 30 days is permitted after issuance of a synopsis for acquisitions for noncommercial items. However, if time permits, a bid or proposal due date that affords potential offerors reasonable time to respond and fosters quality submissions should be established. 3405.205 Special situations. (g) FSA—Module of a previously awarded system. Federal Student Aid must satisfy the publication requirements for sole source and competitive awards for a module of a previously awarded system by publishing a notice of intent on the governmentwide point of entry, not less than 30 days before issuing a solicitation. This notice is not required if a contractor who is to be solicited to submit an offer previously provided a module for the system under a contract that contained cost, schedule, and performance goals, and the contractor met those goals. 3405.207 Preparation and transmittal of synopses. (c) FSA—In Phase One of a Two-Phase Source Selection as described in 3415.302-70, the contracting officer must publish a notice in accordance with FAR 5.2, except that the notice must include only the following: (1) Notification that the procurement will be conducted using the specific procedures included in 3415.302-70. (2) A general notice of the scope or purpose of the procurement that provides sufficient information for sources to make informed business decisions regarding whether to participate in the procurement. (3) A description of the basis on which potential sources are to be selected to submit offers in the second phase. (4) A description of the information that is to be required to be submitted if the request for information is made separate from the notice. (5) Any other information that the contracting officer deems is appropriate. (h) FSA—When modular contracting authority is being utilized, the notice must invite comments and support if it is believed that modular contracting is not suited for the requirement being procured. 3405.270 Notices to perform market surveys. (a) If a sole source contract is anticipated, the issuance of a notice of a proposed contract action that is detailed enough to permit the submission of meaningful responses and the subsequent evaluation of the responses by the Federal government constitutes an acceptable market survey. (b) The notice must include— (1) A clear statement of the supplies or services to be procured; (2) Any capabilities or experience required of a contractor and any other factor relevant to those requirements; (3) A statement that all responsible sources submitting a proposal, bid, or quotation must be considered; (4) Name, business address, and phone number of the Contracting Officer; and (5) Justification for a sole source and the identity of that source. Subpart 3405.5—Paid Advertisements 3405.502 Authority. Authority to approve publication of paid advertisement in newspapers is delegated to the HCA. PART 3406—COMPETITION REQUIREMENTS Sec. 3406.001 Applicability. Subpart 3406.3—Other Than Full and Open Competition 3406.302-5 Authorized or required by statute. Subpart 3406.5—Competition Advocates 3406.501 Requirement. Authority: 5 U.S.C. 301; 41 U.S.C. 418(a) and (b); and 20 U.S.C. 1018a. 3406.001 Applicability. (b) FSA—This part does not apply to proposed contracts and contracts awarded based on other than full and open competition when the conditions for successive systems modules set forth in EDAR 3417.70, Modular Contracting, are utilized. Subpart 3406.3—Other Than Full and Open Competition 3406.302-5 Authorized or required by statute. (a) Authority. (1) Citations: 20 U.S.C. 1018a. (2) Noncompetitive awards of successive modules for systems are permitted when the conditions set forth in EDAR 3417.70 are met. Subpart 3406.5—Competition Advocates 3406.501 Requirement. The Competition Advocate for the Department is the Deputy Director, Contracts and Acquisitions Management. PART 3408—REQUIRED SOURCES OF SUPPLIES AND SERVICES Subpart 3408.8—Acquisition of Printing and Related Supplies Sec. 3408.870 Printing clause. 3408.871 Paperwork reduction. Authority: 5 U.S.C. 301, unless otherwise noted. Subpart 3408.8—Acquisition of Printing and Related Supplies (44 U.S.C. 501) 3408.870 Printing clause. The contracting officer must insert the clause at 3452.208-71 (Printing) in all solicitations and contracts other than purchase orders. 3408.871 Paperwork reduction. The Contracting Officer must insert the clause at 3452.208-72 (Paperwork Reduction Act) in all solicitations and contracts in which the contractor will develop forms or documents for public use. PART 3409—CONTRACTOR QUALIFICATIONS Subpart 3409.4—Debarment, Suspension, and Ineligibility Sec. 3409.400 Scope of subpart. 3409.401 Applicability. 3409.403 Definitions. 3409.406 Debarment. 3409.406-3 Procedures. 3409.407 Suspension. 3409.407-3 Procedures. Subpart 3409.5—Organizational and Consultant Conflicts of Interest 3409.502 Applicability. 3409.503 Waiver. 3409.506 Procedures. 3409.507 Solicitation provision and contract clause. 3409.507-1 Solicitation provision. 3409.507-2 Contract clause. 3409.570 Certification at or below the simplified acquisition threshold. Authority: 5 U.S.C. 301. Subpart 3409.4—Debarment, Suspension, and Ineligibility 3409.400 Scope of subpart. This subpart implements FAR subpart 9.4 by detailing policies and procedures governing the debarment and suspension of organizations and individuals from participating in ED contracts and subcontracts. 3409.401 Applicability. This subpart applies to all procurement debarment and suspension actions initiated by ED. This subpart does not apply to nonprocurement debarment and suspension. 3409.403 Definitions. The SPE is designated as the “debarring official” and “suspending official” as defined in FAR 9.403 and is designated as the agency official authorized to make the decisions required in FAR 9.406 and FAR 9.407. 3409.406 Debarment. 3409.406-3 Procedures. (b) Decision making process. (1) Contractors proposed for debarment may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment. The contractor must submit additional information within 30 days of receipt of the notice of proposal to debar, as described in FAR 9.406-3(c). (2) In actions not based upon a conviction or civil judgment, if the contractor's submission in opposition raises a genuine dispute over facts material to the proposed debarment, the contractor may request a fact-finding conference. If the Debarring Official determines that there is a genuine dispute of material fact, the Debarring Official will conduct fact-finding and base the decision in accordance with FAR 9.406-3(b)(2) and (d)-(f). 3409.407 Suspension. 3409.407-3 Procedures. (b) Decision making process. (1) Contractors suspended in accordance with FAR 9.407 may submit, in person, in writing, or through a representative, information and argument in opposition to the suspension. The contractor must submit this information and argument within 30 days of receipt of the notice of suspension, as described in FAR 9.407-3(c). (2) In actions not based upon an indictment, if the contractor's submission in opposition raises a genuine dispute over facts material to the suspension an dif no determination has been made, on the basis of Department of Justice advice, that substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced, the contractor may request a fact-finding conference. The Suspending Official will conduct fact-finding and base the decision in accordance with FAR 9.407-3(b)(2) and (d)-(e). Subpart 3409.5—Organizational and Consultant Conflicts of Interest 3409.502 Applicability. This subpart applies to all ED contracts except contracts with other Federal agencies. However, this subpart applies to contracts with the Small Business Administration (SBA) under the 8(a) program. 3409.503 Waiver. The HCA is designated as the official who may waive any general rule or procedure of FAR Subpart 9.5 or of this subpart. 3409.506 Procedures. (a) If the effects of a potential or actual conflict of interest cannot be avoided, neutralized, or mitigated before award, the prospective contractor is not eligible for that award. If a potential or actual conflict of interest is identified after award and the effects cannot be avoided, neutralized, or mitigated, ED will terminate the contract unless the HCA deems continued performance to be in the best interest of the Federal government. (b) The HCA is designated as the official to conduct reviews and make final decisions under FAR 9.506(b) and (c). 3409.507 Solicitation provision and contract clause. 3409.507-1 Solicitation provision. The contracting officer must insert the provision in 3452.209-70 (Conflict of interest certification) in all solicitations for services above the simplified acquisition threshold. 3409.507-2 Contract clause. The contracting officer must insert the clause at 3452.209-71 (Conflict of interest) in all contracts for services above the simplified acquisition threshold. The clause is applicable to each order for services over the simplified acquisition threshold under task order contracts. 3409.570 Certification at or below the simplified acquisition threshold. By accepting any contract, including orders against any Schedule or Government-wide Acquisition Contract (GWAC), with the Department at or below the simplified acquisition threshold: (a) The contractor warrants that, to the best of the contractor's knowledge and belief, there are no relevant facts or circumstances that would give rise to an organizational conflict of interest, as defined in FAR Subpart 2.1, or that the Contractor has disclosed all such relevant information. (b) The contractor agrees that if an actual or potential organizational conflict of interest is discovered after award, the contractor will make an immediate full disclosure in writing to the contracting officer. This disclosure must include a description of actions that the contractor has taken or proposes to take, after consultation with the contracting officer, to avoid, mitigate, or neutralize the actual or potential conflict. (c) The contractor agrees that: (1) The Government may terminate this contract for convenience, in whole or in part, if such termination is necessary to avoid an organizational conflict of interest. (2) The Government may terminate this contract for default or pursue other remedies permitted by law or this contract if the contractor was aware or should have been aware of a potential organizational conflict of interest prior to award, or discovers or should have discovered an actual or potential conflict after award, and does not disclose, or misrepresents, relevant information to the contracting officer regarding the conflict. (d) The contractor further agrees to insert provisions that substantially conform to the language of this section, including this paragraph (d), in any subcontract or consultant agreement hereunder. PART 3412—ACQUISITION OF COMMERCIAL ITEMS Subpart 3412.2—Special Requirements for the Acquisition of Commercial Items Sec. 3412.203 Procedures for solicitation, evaluation, and award. Subpart 3412.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items 3412.302 Tailoring of provisions and clauses for the acquisition of commercial items. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3412.2—Special Requirements for the Acquisition of Commercial Items 3412.203 Procedures for solicitation, evaluation, and award. As specified in 3413.003, simplified acquisition procedures for commercial items may be used without regard to any dollar or timeframe limitations described in FAR 13.5 when acquired by the FSA and used for its purposes. Subpart 3412.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items 3412.302 Tailoring of provisions and clauses for the acquisition of commercial items. The HCA is authorized to approve waivers in accordance with FAR 12.302(c). The approved waiver may be either for an individual contract or for a class of contracts for the specific item. The approved waiver and supporting documentation must be incorporated into the contract file. SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES PART 3413—SIMPLIFIED ACQUISITION PROCEDURES Sec. 3413.000 Scope of part. 3413.003 Policy. Subpart 3413.3—Simplified Acquisition Methods 3413.303 Blanket purchase agreements (BPAs). 3413.303-5 Purchases under BPAs. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. 3413.000 Scope of part. 3413.003 Policy. (c)(1)(iii) FSA—FSA may use simplified acquisition procedures for commercial items without regard to any dollar or timeframe limitations described in FAR 13.5. (iv) FSA—FSA may use simplified acquisition procedures for non-commercial items up to $1,000,000 when the acquisition is set aside for small businesses, pursuant to EDAR 3419.502. Subpart 3413.3—Simplified Acquisition Methods 3413.303 Blanket purchase agreements (BPAs). 3413.303-5 Purchases under BPAs. (b) Individual purchases under blanket purchase agreements for commercial items may exceed the simplified acquisition threshold but shall not exceed the threshold for the test program for certain commercial items, in FAR 13.500(a). PART 3414—SEALED BIDDING Subpart 3414.4—Opening of Bids and Award of Contract Sec. 3414.407 Mistakes in bids. 3414.407-3 Other mistakes disclosed before award. Authority: 5 U.S.C. 301. Subpart 3414.4—Opening of Bids and Award of Contract 3414.407 Mistakes in bids. 3414.407-3 Other mistakes disclosed before award. Authority is delegated to the HCA to make determinations under FAR 14.407-3(a)-(d). PART 3415—CONTRACTING BY NEGOTIATION Subpart 3415.2—Solicitation and Receipt of Proposals and Information Sec. 3415.209 Solicitation provisions and contract clauses. Subpart 3415.3—Source Selection 3415.302 Source selection objective. 3415.302-70 Two-phase source selection. Subpart 3415.6—Unsolicited Proposals 3415.605 Content of unsolicited proposals. 3415.606 Agency procedures. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3415.2—Solicitation and Receipt of Proposals and Information 3415.209 Solicitation provisions and contract clauses. (a) The Freedom of Information Act (FOIA), 5 U.S.C. 552, may require ED to release data contained in an offeror's proposal even if the offeror has identified the data as restricted in accordance with the provision in FAR 52.215-1(e). The solicitation provision in 3452.215-70 (Release of restricted data) informs offerors that ED is required to consider release of restricted data under FOIA and Executive Order 12600. (b) The contracting officer must insert the provision in 3452.215-70, in all solicitations that include a reference to FAR 52.215-1 (Instructions to Offerors—Competitive Acquisitions). Subpart 3415.3—Source Selection 3415.302 Source selection objective. 3415.302-70 Two-phase source selection. (a) FSA—May utilize a two-phase process to solicit offers and select a source for award. The contracting officer can choose to use this optional method of solicitation when deemed beneficial to the FSA in meeting its needs as a PBO. (b) Phase One. (1) The contracting officer must publish a notice in accordance with FAR 5.2, except that the notice must include limited information as specified in EDAR 3405.207. (2) Information Submitted by Offerors. Each offeror must submit basic information such as the offeror's qualifications, the proposed conceptual approach, costs likely to be associated with the approach, and past performance data, together with any additional information requested by the contracting officer. (3) Selection for participating in second phase. The contracting officer must select the offerors that are eligible to participate in the second phase of the process. The contracting officer must limit the number of the selected offerors to the number of sources that the contracting officer determines is appropriate and in the best interests of the Federal government. (c) Phase Two. (1) The contracting officer must conduct the second phase of the source selection consistent with FAR 15.2 and 15.3, except as provided by EDAR 3405.207. (2) Only sources selected in the first phase will be eligible to participate in the second phase. Subpart 3415.6—Unsolicited Proposals 3415.605 Content of unsolicited proposals. (d) Each unsolicited proposal must contain the following certification: Unsolicited Proposal Certification By Offeror This is to certify, to the best of my knowledge and belief, that— a. This proposal has not been prepared under Federal government supervision; b. The methods and approaches stated in the proposal were developed by this offeror; c. Any contact with employees of the Department of Education has been within the limits of appropriate advance guidance set forth in FAR 15.604; and d. No prior commitments were received from departmental employees regarding acceptance of this proposal. Date: Organization: Name: Title: (This certification must be signed by a responsible person authorized to enter into contracts on behalf of the organization.) 3415.606 Agency procedures. (b)(1) The HCA or designee is the contact point to coordinate the receipt, control, and handling of unsolicited proposals. (2) Offerors must direct unsolicited proposals to the HCA. PART 3416—TYPES OF CONTRACTS Subpart 3416.3—Cost-Reimbursement Contracts Sec. 3416.303 Cost-sharing contracts. 3416.307 Contract clauses. Subpart 3416.4—Incentive Contracts 3416.402 Application of predetermined, formula-type incentives. 3416.402-2 Performance incentives. 3416.470 Award-term contracting. Subpart 3416.6—Time-and-Materials, Labor-Hour, and Letter Contracts 3416.603 Letter contracts. 3416.603-3 Limitations. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3416.3—Cost-Reimbursement Contracts 3416.303 Cost-sharing contracts. (b) Application. Costs that are not reimbursed under a cost-sharing contract may not be charged to the Federal government under any other grant, contract, cooperative agreement, or other arrangement. 3416.307 Contract clauses. (a) If the clause in FAR 52.216-7 (Allowable Cost and Payment) is used in a contract with a hospital, the contracting officer must modify the clause by deleting the words “Subpart 31.2 of the Federal Acquisition Regulation (FAR)” from paragraph (a) and substituting “34 CFR part 74, Appendix E.” (b) The contracting officer must insert the clause at 3452.216-70 (Additional cost principles) in all solicitations of and resultant cost-reimbursement contracts with nonprofit organizations other than educational institutions, hospitals, or organizations listed in Attachment C to Office of Management and Budget Circular A-122. Subpart 3416.4—Incentive Contracts 3416.402 Application of predetermined, formula-type incentives. 3416.402-2 Performance incentives. (b) Award-term contracting may be used for performance-based contracts or task orders. See EDAR 3416.470 for the definition of award-term contracting and implementation guidelines. 3416.470 Award-term contracting. (a) Definition. Award-term contracting is a method, based upon a pre-determined plan in the contract, to extend the contract term for superior performance and to reduce the contract term for substandard or poor performance. (b) Applicability. A Contracting Officer may authorize use of an award-term incentive contract for acquisitions where the quality of contractor performance is of a critical or highly important nature. The basic contract term may be extended on the basis of the Federal government's determination of the excellence of the contractor's performance. Additional periods of performance, which are referred to herein as “award terms,” are available for possible award to the contractor. As award term(s) are awarded, each additional period of performance will immediately follow the period of performance for which the award term was granted. The contract may end at the base period of performance if the Federal government determines that the contractor's performance does not reflect a level of performance as described in the award-term plan. Award-term periods may only be earned based on the evaluated quality of the performance of the contractor. Meeting the terms of the contract is not justification to award an award-term period. The use of an award-term plan does not exempt the contract from the requirements of FAR 17.207, with respect to performing due diligence prior to extending a contract term. (c) Approvals. The Contracting Officer must justify the use of an award-term incentive contract in writing. The award-term plan approving official will be appointed by the HCA. (d) Disputes. The Federal government unilaterally makes all decisions regarding award-term evaluations, points, methodology used to calculate points, and the degree of the contractor's success. These decisions are not subject to the Disputes clause. (e) Award-term limitations. (1) Award periods may be earned during the base period of performance and each option period, except the last option period. Award-term periods may not be earned during the final option year of any contract. (2) Award-term periods may not exceed twelve months. (3) The potential award-term periods will be priced, evaluated, and considered in the initial contract selection process. (f) Implementation of extensions or reduced contract terms. (1) An award term is contingent upon a continuing need for the supplies or services and the availability of funds. Award terms may be cancelled prior to the start of the period of performance at no cost to the Federal government if there is not a continued need or available funding. (2) The extension or reduction of the contract term is affected by a unilateral contract modification. (3) Award-term periods occur after the period for which the award term was granted. Award-term periods effectively move option periods to later contract performance periods. (4) Contractors have the right to decline the award of an award-term period. A contractor loses its ability to earn additional award terms if an earned Award-Term Period is declined. (5) Changes to the contract award-term plan must be mutually agreed upon. (g) Clause. Insert a clause substantially the same as the clause at 3452.216-71 (Award-term) in all solicitations and resulting contracts where an award-term incentive contract is anticipated. Subpart 3416.6—Time and Materials, Labor-Hour, and Letter Contracts 3416.603 Letter contracts. 3416.603-3 Limitations. If the HCA is to sign a letter contract as the contracting officer, the SPE signs the written determination under FAR 16.603-3. PART 3417—SPECIAL CONTRACTING METHODS Subpart 3417.2—Options Sec. 3417.204 Contracts. 3417.207 Exercise of options. Subpart 3417.5—Interagency Acquisitions Under the Economy Act 3417.502 General. Subpart 3417.7—Modular Contracting 3417.70 Modular contracting. Authority: 31 U.S.C. 1535 and 20 U.S.C. 1018a. Subpart 3417.2—Options 3417.204 Contracts. (e) Except as otherwise provided by law, contract periods that exceed the five-year limitation specified in FAR 17.204(e) must be approved by— (1) The HCA for individual contracts; or (2) The SPE for classes of contracts. 3417.207 Exercise of options. If a contract provision allows an option to be exercised within a specified timeframe after funds become available, it must also specify that the date on which funds “become available” is the actual date funds become available to the contracting officer for obligation. (f)(2) The Federal government may accept price reductions offered by contractors at any time during contract performance. Acceptance of price reductions offered by contractors will not be considered renegotiations as identified in this subpart if they were not initiated or requested by the Federal government. Subpart 3417.5—Interagency Acquisitions Under the Economy Act 3417.502 General. No other Federal department or agency may purchase property or services under contracts established or administered by FSA unless the purchase is approved by SPE for the requesting Agency. Subpart 3417.7—Modular Contracting 3417.70 Modular contracting. (a) FSA—FSA may incrementally conduct successive procurements of modules of overall systems. Each module must be useful in its own right or useful in combination with the earlier procurement modules. Successive modules may be procured on a sole source basis under the following circumstances: (1) Competitive procedures are used for awarding the contract for the first system module; and (2) The solicitation for the first module included the following: (i) A general description of the entire system that was sufficient to provide potential offerors with reasonable notice of the general scope of future modules; (ii) Other sufficient information to enable offerors to make informed business decisions to submit offers for the first module; and (iii) A statement that procedures, i.e., the sole source awarding of follow-on modules, could be used for the subsequent awards. SUBCHAPTER D—SOCIOECONOMIC PROGRAMS PART 3419—SMALL BUSINESS PROGRAMS Subpart 3419.2—Policies Sec. 3419.201 General policy. 3419.201-70 Office of Small and Disadvantaged Business Utilization (OSDBU). Subpart 3419.5—Set-Asides for Small Business 3419.502 Setting aside acquisitions. 3419.502-4 Methods of conducting set-asides. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3419.2—Policies 3419.201 General policy. 3419.201-70 Office of Small and Disadvantaged Business Utilization. The Office of Small and Disadvantaged Business Utilization (OSDBU), Office of the Deputy Secretary, is responsible for facilitating the implementation of the Small Business Act, as described in FAR 19.201. The OSDBU develops rules, policy, procedures, and guidelines for the effective administration of ED's small business program. Subpart 3419.5—Set-Asides for Small Business 3419.502 Setting aside acquisitions. 3419.502-4 Methods of conducting set-asides. (a) Simplified acquisition procedures as described in FAR Part 13 for the procurement of noncommercial services for FSA requirements may be used under the following circumstances: (1) The procurement does not exceed $1,000,000; (2) The procurement is conducted as a small business set-aside pursuant to section 15(a) of the Small Business Act; (3) The price charged for supplies associated with the services are expected to be less than 20 percent of the total contract price; (4) The procurement is competitive; and (5) The procurement is not for construction. PART 3422—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS Subpart 3422.10—Service Contract Act of 1965, as Amended Sec. 3422.1002 Statutory requirements. 3422.1002-1 General. Authority: 5 U.S.C. 301; 41 U.S.C. 418b (a) and (b). Subpart 3422.10—Service Contract Act of 1965, as Amended 3422.1002 Statutory requirements. 3422.1002-1 General. Consistent with 29 CFR 4.145, Extended term contracts, the five-year limitation set forth in the Service Contract Act of 1965, as amended (Service Contact Act), applies to each period of the contract individually, not the cumulative period of base and option periods. Accordingly, no contract subject to the Service Contract Act issued by the Department of Education will have a base period or option period that exceeds five years. PART 3424—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION Subpart 3424.1—Protection of Individual Privacy Sec. 3424.103 Procedures. 3424.170 Protection of human subjects. Subpart 3424.2—Freedom of Information Act 3424.201 Authority. 3424.203 Policy. Authority: 5 U.S.C. 301. Subpart 3424.1—Protection of Individual Privacy 3424.103 Procedures. (a) If the Privacy Act of 1974 (Privacy Act) applies to a contract, the contracting officer must specify in the contract the disposition to be made of the system or systems of records upon completion of performance. For example, the contract may require the contractor to completely destroy the records, to remove personal identifiers, to turn the records over to ED, or to keep the records but take certain measures to keep the records confidential and protect the individual's privacy. (b) If a notice of the system of records has not been published in the Federal Register , the contracting officer may proceed with the acquisition but must not award the contract until the notice is published, unless the contracting officer determines, in writing, that portions of the contract may proceed without maintaining information subject to the Privacy Act. In this case, the contracting officer may— (1) Award the contract, authorizing performance only of those portions not subject to the Privacy Act; and (2) After the notice is published and effective, authorize performance of the remainder of the contract. 3424.170 Protection of human subjects. In this subsection, “Research” means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. (34 CFR 97.102(d)) Research is considered to involve human subjects when a researcher obtains information about a living individual through intervention or interaction with the individual or obtains personally identifiable private information about an individual. Some categories of research are exempt under the regulations, and the exemptions are in 34 CFR part 97. (a) Insert the provision in 3452.224-71 (Notice about research activities involving human subjects) in any solicitation where a resultant contract will include, or is likely to include, research activities involving human subjects covered under 34 CFR part 97. (b) Insert the clause at 3452.224-72 (Research activities involving human subjects) in any solicitation that includes the provision in 3452.224-71 (Notice about research activities involving human subjects) and in any resultant contract. Subpart 3424.2—Freedom of Information Act 3424.201 Authority. The Department's regulations implementing the Freedom of Information Act, 5 U.S.C. 552, are in 34 CFR part 5. 3424.203 Policy. (a) [Reserved] (b) The Department's policy is to release all information incorporated into a contract and documents that result from the performance of a contract to the public under the Freedom of Information Act. The release or withholding of documents requested will be made on a case-by-case basis. Contracting officers must advise offerors and prospective contractors of the possibility that their submissions may be released under the Freedom of Information Act, not withstanding any restrictions that are included at the time of proposal submission. A clause substantially the same as the clause at 3452.224-70 (Release of information under the Freedom of Information Act) must be included in all solicitations and contracts. PART 3425—FOREIGN ACQUISITION Subpart 3425.1—Buy American Act-Supplies Sec. 3425.102 Exceptions. Authority: 5 U.S.C. 301. Subpart 3425.1—Buy American Act—Supplies 3425.102 Exceptions. The HCA approves determinations under FAR 25.103(b)(2)(i). Subchapter E—General Contracting Requirements PART 3427—PATENTS, DATA, AND COPYRIGHTS Subpart 3427.4—Rights in Data and Copyrights Sec. 3427.409 Solicitation provisions and contract clauses. Authority: 5 U.S.C. 301. Subpart 3427.4—Rights in Data and Copyrights 3427.409 Solicitation provisions and contract clauses. (a) The contracting officer must insert the clause at 3452.227-70 (Publication and publicity) in all solicitations and contracts other than purchase orders. (b) The contracting officer must insert the clause at 3452.227-71 (Advertising of awards) in all solicitations and contracts other than purchase orders. (c) The contracting officer must insert the clause at 3452.227-72 (Use and non-disclosure agreement) in all contracts over the simplified acquisition threshold, and in contracts under the simplified acquisition threshold, as appropriate. (d) The contracting officer must insert the clause at 3452.227-73 (Limitations on the use or disclosure of Government-furnished information marked with restrictive legends) in all contracts of third party vendors who require access to government-furnished information including other contractors' technical data, proprietary information, or software. PART 3428—BONDS AND INSURANCE Subpart 3428.3—Insurance Sec. 3428.311 Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts. 3428.311-2 Contract clause. Authority: 5 U.S.C. 301. Subpart 3428.3—Insurance 3428.311 Solicitation provision and contract clause on liability insurance under cost-reimbursement contracts. 3428.311-2 Contract clause. The contracting officer must insert the clause at 3452.228-70 (Required insurance) in all solicitations and resultant cost-reimbursement contracts. PART 3432—CONTRACT FINANCING Subpart 3432.4—Advance Payments for Non-Commercial Items Sec. 3432.402 General. 3432.407 Interest. Subpart 3432.7—Contract Funding 3432.705 Contract clauses. 3432.705-2 Clauses for limitation of cost or funds. Authority: 5 U.S.C. 301. Subpart 3432.4—Advance Payments for Non-Commercial Items 3432.402 General. The HCA is delegated the authority to make determinations under FAR 32.402(c)(1)(iii). This authority may not be redelegated. 3432.407 Interest. The HCA is designated as the official who may authorize advance payments without interest under FAR 32.407(d). Subpart 3432.7—Contract Funding 3432.705 Contract clauses. 3432.705-2 Clauses for limitation of cost or funds. (a) The contracting officer must insert the clause at 3452.232-70 (Limitation of cost or funds) in all solicitations and contracts where a Limitation of cost or Limitation of funds clause is utilized. (b) The contracting officer must insert the provision in 3452.232-71 (Incremental funding) in a solicitation if a cost-reimbursement contract using incremental funding is contemplated. PART 3433—PROTESTS, DISPUTES, AND APPEALS Subpart 3433.1—Protests Sec. 3433.103 Protests to the agency. Authority: 5 U.S.C. 301. Subpart 3433.1—Protests 3433.103 Protests to the agency. (f)(3) The contracting officer's HCA must approve the justification or determination to continue performance. The criteria in FAR 33.103(f)(3) must be followed in making the determination to award a contract before resolution of a protest. SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING PART 3437—SERVICE CONTRACTING Subpart 3437.1—Service Contracts—General Sec. 3437.102 Policy. 3437.170 Observance of administrative closures Subpart 3437.2—Advisory and Assistance Services 3437.270 Services of consultants clauses. Subpart 3437.6—Performance-Based Acquisition 3437.670 Contract type. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3437.1—Service Contracts—General 3437.102 Policy. If a service contract requires one or more end items of supply, FAR Subpart 37.1 and this subpart apply only to the required services. 3437.170 Observance of administrative closures. The contracting officer must insert the clause at 3452.237-71 (Observance of administrative closures) in all solicitations and contracts for services. Subpart 3437.2—Advisory and Assistance Services 3437.270 Services of consultants clause. The contracting officer must insert the clause at 3452.237-70 (Services of consultants) in all solicitations and resultant cost-reimbursement contracts that do not provide services to FSA. Subpart 3437.6—Performance-Based Acquisition 3437.670 Contract type. Award-term contracting may be used for performance-based contracts and task orders that provide opportunities for significant improvements and benefits to the Department. Use of award-term contracting must be approved in advance by the HCA. PART 3439—ACQUISITION OF INFORMATION TECHNOLOGY Subpart 3439.70——Department Requirements for Acquisition of Information Technology Sec. 3439.701 Internet Protocol version 6. 3439.702 Department security requirements. 3439.703 Federal desktop core configuration (FDCC) compatibility. Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a. Subpart 3439.70—Department Requirements for Acquisition of Information Technology 3439.701 Internet Protocol version 6. The contracting officer must insert the clause at 3452.239-70 (Internet Protocol version 6 (IPv6)) in all solicitations and resulting contracts for hardware and software. 3439.702 Department security requirements. The contracting officer must include the solicitation provision in 3452.239-71 (Notice to offerors of Department security requirements) and the clause at 3452.239-72 (Department security requirements) when contractor employees will have access to Department-controlled facilities or space, or when the work (wherever located) involves the design, operation, repair, or maintenance of information systems and access to sensitive but unclassified information. 3439.703 Federal desktop core configuration (FDCC) compatibility. The contracting officer must include the clause at 3452.239-73 (Federal desktop core configuration (FDCC) compatibility) in all solicitations and contracts where software will be developed, maintained, or operated on any system using the FDCC configuration. SUBCHAPTER G—CONTRACT MANAGEMENT PART 3442—CONTRACT ADMINISTRATION AND AUDIT SERVICES Subpart 3442.70—Contract Monitoring Sec. 3442.7001 Litigation and claims clause. 3442.7002 Delays clause. Subpart 3442.71—Accessibility of meetings, conferences, and seminars to persons with disabilities 3442.7101 Policy and clause. Authority: 5 U.S.C. 301. Subpart 3442.70—Contract Monitoring 3442.7001 Litigation and claims clause. The contracting officer must insert the clause at 3452.242-70 (Litigation and claims) in all solicitations and resultant cost-reimbursement contracts. 3442.7002 Delays. The contracting officer must insert the clause at 3452.242-71 (Notice to the government of delays) in all solicitations and contracts other than purchase orders. Subpart 3442.71—Accessibility of Meetings, Conferences, and Seminars to Persons With Disabilities 3442.7101 Policy and clause. (a) It is the policy of ED that all meetings, conferences, and seminars be accessible to persons with disabilities. (b) The contracting officer must insert the clause at 3452.242-73 (Accessibility of meetings, conferences, and seminars to persons with disabilities) in all solicitations and contracts. PART 3443—CONTRACT MODIFICATIONS Subpart 3443.1—General Sec. 3443.107 Contract clause Authority: 5 U.S.C. 301. Subpart 3443.1—General 3443.107 Contract clause. The contracting officer must insert a clause substantially the same as 3452.243-70 (Key personnel) in all solicitations and resultant contracts in which it will be essential for the contracting officer to be notified that a change of designated key personnel is to take place by the contractor. PART 3445—GOVERNMENT PROPERTY Subpart 3445.4—Contractor Use and Rental of Government Property Sec. 3445.405 Contracts with foreign governments or international organizations. Authority: 5 U.S.C. 301. Subpart 3445.4—Contractor Use and Rental of Government Property 3445.405 Contracts with foreign governments or international organizations. Requests by, or for the benefit of, foreign governments or international organizations to use ED production and research property must be approved by the HCA. The HCA must determine the amount of cost to be recovered or rental charged, if any, based on the facts and circumstances of each case. PART 3447—TRANSPORTATION Subpart 3447.7—Foreign Travel Sec. 3447.701 Foreign travel clause. Authority: 5 U.S.C. 301. Subpart 3447.7—Foreign Travel 3447.701 Foreign travel clause. The contracting officer must insert the clause at 3452.247-70 (Foreign travel) in all solicitations and resultant cost-reimbursement contracts. SUBCHAPTER H—CLAUSES AND FORMS PART 3452—SOLICITATION PROVISIONS AND CONTRACT CLAUSES Subpart 3452.2—Text of Provisions and Clauses Sec. 3452.201-70 Contracting Officer's Representative (COR). 3452.202-1 Definitions—Department of Education. 3452.208-71 Printing. 3452.208-72 Paperwork Reduction Act. 3452.209-70 Conflict of interest certification. 3452.209-71 Conflict of interest 3452.215-70 Release of restricted data. 3452.216-70 Additional cost principles. 3452.216-71 Award-Term. 3452.224-70 Release of information under the Freedom of Information Act. 3452.224-71 Notice about research activities involving human subjects. 3452.224-72 Research activities involving human subjects. 3452.227-70 Publication and publicity. 3452.227-71 Advertising of awards. 3452.227-72 Use and non-disclosure agreement. 3452.227-73 Limitations on the use or disclosure of Government-furnished information marked with restrictive legends. 3452.228-70 Required insurance. 3452.232-70 Limitation of cost or funds. 3452.232-71 Incremental funding. 3452.237-70 Services of consultants. 3452.237-71 Observance of administrative closures. 3452.239-70 Internet protocol version 6 (IPv6). 3452.239-71 Notice to offerors of Department security requirements. 3452.239-72 Department security requirements. 3452.239-73 Federal desktop core configuration (FDCC) compatibility. 3452.242-70 Litigation and claims. 3452.242-71 Notice to the government of delays. 3452.242-73 Accessibility of meetings, conferences, and seminars to persons with disabilities. 3452.243-70 Key personnel. 3452.247-70 Foreign travel. Authority: 5 U.S.C. 301. Subpart 3452.2—Text of Provisions and Clauses 3452.201-70 Contracting Officer's Representative (COR). As prescribed in 3401.670-3, insert a clause substantially the same as: CONTRACTING OFFICER′S REPRESENTATIVE (COR) (XXXX 2010) (a) The Contracting Officer's Representative (COR) is responsible for the technical aspects of the project, technical liaison with the contractor, and any other responsibilities that are specified in the contract. These responsibilities include inspecting all deliverables, including reports, and recommending acceptance or rejection to the contracting officer. (b) The COR is not authorized to make any commitments or otherwise obligate the Government or authorize any changes that affect the contract price, terms, or conditions. Any contractor requests for changes shall be submitted in writing directly to the contracting officer or through the COR. No such changes shall be made without the written authorization of the contracting officer. (c) The COR's name and contact information: (d) The COR may be changed by the Government at any time, but notification of the change, including the name and address of the successor COR, will be provided to the contractor by the contracting officer in writing. (End of Clause) 3452.202-1 Definitions—Department of Education. As prescribed in 3402.201, insert the following clause in solicitations and contracts in which the clause at FAR 52.202-1 is required. DEFINITIONS—DEPARTMENT OF EDUCATION (XXXX 2010) (a) The definitions at FAR 2.101 are appended with those contained in Education Department Acquisition Regulations (EDAR) 3402.101. (b) The EDAR is available via the Internet at http://www.ed.gov/policy/fund/reg/clibrary/edar.html. (End of Clause) 3452.208-71 Printing. As prescribed in 3408.870, insert the following clause in all solicitations and contracts other than purchase orders: PRINTING (XXXX 2010) Unless otherwise specified in this contract, the contractor shall not engage in, nor subcontract for, any printing (as that term is defined in Title I of the Government Printing and Binding Regulations in effect on the effective date of this contract) in connection with the performance of work under this contract; except that performance involving the duplication of fewer than 5,000 units of any one page, or fewer than 25,000 units in the aggregate of multiple pages, shall not be deemed to be printing. A unit is defined as one side of one sheet, one color only (with black counting as a color), with a maximum image size of 10 3/4 by 14 1/4 inches on a maximum paper size of 11 by 17 inches. Examples of counting the number of units: black plus one additional color on one side of one page counts as two units. Three colors (including black) on two sides of one page count as six units. (End of Clause) 3452.208-72 Paperwork Reduction Act. As prescribed in 3408.871, insert the following clause in all relevant solicitations and contracts: PAPERWORK REDUCTION ACT (XXXX 2010) (a) The Paperwork Reduction Act of 1980 (Pub. L. 96-511) applies to contractors that collect information for use or disclosure by the Federal Government. If the contractor will collect information requiring answers to identical questions from 10 or more people, no plan, questionnaire, interview guide, or other similar device for collecting information may be used without first obtaining clearance from the Chief Acquisition Officer (CAO) or the CAO's designee within the Department of Education (ED) and the Office of Management and Budget (OMB). Contractors and Contracting Officers' Representatives shall be guided by the provisions of 5 CFR part 1320, Controlling Paperwork Burdens on the Public, and should seek the advice of the Department's Paperwork Clearance Officer to determine the procedures for acquiring CAO and OMB clearance. (b) The contractor shall obtain the required clearances through the Contracting Officer's Representative before expending any funds or making public contacts for the collection of information described in paragraph (a) of this clause. The authority to expend funds and proceed with the collection shall be in writing by the contracting officer. The contractor must plan at least 120 days for CAO and OMB clearance. Excessive delay caused by the Government that arises out of causes beyond the control and without the fault or negligence of the contractor will be considered in accordance with the Excusable Delays or Default clause of this contract. (End of Clause) 3452.209-70 Conflict of interest certification. As prescribed in 3409.507-1, insert the following provision in all solicitations anticipated to result in contract actions for services above the simplified acquisition threshold: CONFLICT OF INTEREST CERTIFICATION (XXXX 2010) (a)(1) The contractor, subcontractor, employee, or consultant, by signing the form in this clause, certifies that, to the best of their knowledge and belief, there are no relevant facts or circumstances that could give rise to an organizational or personal conflict of interest, (see FAR Subpart 9.5 for organizational conflicts of interest) (or apparent conflict of interest), for the organization or any of its staff, and that the contractor, subcontractor, employee, or consultant has disclosed all such relevant information if such a conflict of interest appears to exist to a reasonable person with knowledge of the relevant facts (or if such a person would question the impartiality of the contractor, subcontractor, employee, or consultant). Conflicts may arise in the following situations: (i) Unequal access to information. A potential contr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-20198. Public record. Not legal advice.