Justice Acquisition Regulations; Rewrite of the Justice Acquisition Regulation (JAR). Regarding: Implementation of the Federal Acquisition Streamlining Act and the National Performance Review Recommendations

Federal RegisterJan 9, 1998

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DEPARTMENT OF JUSTICE

48 CFR Chapter 28

Justice Acquisition Regulations; Rewrite of the Justice

Acquisition Regulation (JAR). Regarding: Implementation of the Federal

Acquisition Streamlining Act and the National Performance Review

Recommendations

AGENCY: Justice Management Division, Justice.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Department of Justice is proposing to rewrite 48 CFR

Chapter 28, the Justice Acquisition Regulations, in its entirety in

order to implement regulatory changes resulting from the Federal

Acquisition Streamlining Act and to further implement recommendations

of the National Performance Review. This effort will create a new JAR

that is simpler and less burdensome. This 1998 version of the JAR

supersedes the 1985 version and all amendments (Justice Acquisition

Circulars 85-1 through 97-1) issued prior to the date of publication of

a final rule.

DATES: Comments must be submitted on or before March 10, 1998.

ADDRESSES: Send written comments to Procurement Executive, 1331

Pennsylvania Avenue, NW., National Place Bldg., Room 1400, Washington,

DC 20530.

FOR FURTHER INFORMATION CONTACT:

Janis Sposato, Procurement Executive, Justice Management Division (202)

514-3103.

SUPPLEMENTARY INFORMATION: The Director, Office of Management and

Budget (OMB), by memorandum dated December 14, 1984, exempted agency

procurement regulations from review

[[Page 1400]]

under Executive Order 12291, except for selected areas. The exception

applies to this rule. In addition, the Department of Justice certifies

that this rule will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act (5 U.S.C. 601-612) because the amendment sets forth, wholly,

internal departmental procedures. All information collection

requirements which require approval by OMB under the Paperwork

Reduction Act of 1980 (Pub. L. 96-511) have been submitted to OMB. In

those cases where an OMB control number has been assigned, the control

number is included in the regulation.

List of Subjects in 48 CFR Parts 2801 Through 2852

Government procurement.

Stephen R. Colgate,

Assistant Attorney General For Administration.

For the reasons set out in the preamble, Chapter 28 of Title 48 of

the Code of Federal Regulations is proposed to be revised as set forth

below.

CHAPTER 28--DEPARTMENT OF JUSTICE

SUBCHAPTER A--GENERAL

Part 2801--Department of Justice Acquisition Regulations System

Part 2802--Definitions of Words and Terms

Part 2803--Improper Business Practices and Personal Conflicts of

Interest

Part 2804--Administrative Matters

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

Part 2805--Publicizing Contract Actions

Part 2806--Competition Requirements

Part 2807--Acquisition Planning

Part 2808--Required Sources of Supplies and Services

Part 2809--Contractor Qualifications

Part 2811--Describing Agency Needs

Part 2812--Acquisition of Commercial Items

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

Part 2813--Simplified Acquisition Procedures

Part 2814--Sealed Bidding

Part 2815--Contracting By Negotiation

Part 2816--Types of Contracts

Part 2817--Special Contracting Methods

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

Part 2819--Small Business Programs

Part 2822--Application of Labor Laws to Government Acquisitions

Part 2823--Environment, Conservation, Occupational Safety, and Drug-

Free Workplace

Part 2824--Protection of Privacy and Freedom of Information

Part 2825--Foreign Acquisition

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

Part 2828--Bonds and Insurance

Part 2829--Taxes

Part 2830--Cost Accounting Standards Administration

Part 2831--Contract Cost Principles and Procedures

Part 2832--Contract Financing

Part 2833--Protests, Disputes, and Appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

Part 2834--Major System Acquisition

SUBCHAPTER G--CONTRACT MANAGEMENT

Part 2842--Contract Administration

Part 2845--Government Property

Part 2846--Quality Assurance

SUBCHAPTER H--CLAUSES AND FORMS

Part 2852--Solicitation Provisions and Contract Clauses

SUBCHAPTER A--GENERAL

PART 2801--DEPARTMENT OF JUSTICE ACQUISITION REGULATIONS SYSTEM

Subpart 2801.1--Purpose, Authority, Issuance

2801.101 Purpose.

Subpart 2801.2--Administration

2801.270-1 Revisions.

Subpart 2801.3--Agency Acquisition Regulations

2801.304 Agency control and compliance procedures.

Subpart 2801.4--Deviations From The FAR and JAR

2801.403 Individual deviations.

2801.404 Class deviations.

2801.470 Requests for class deviations.

Subpart 2801.6--Career Development, Contracting Authority, and

Responsibilities

2801.601 General.

2801.602 Contracting Officers.

2801602-3 Ratification of unauthorized commitments.

2801.603 Selection, appointment and termination of appointment.

2801.603-1 Department of Justice Acquisition Career Management

Program.

2801.603-3 Appointment.

Subpart 2801.70--Contracting Officer's Technical Representative

2801.7001-701 General.

2801.7001-702 Selection, appointment, and limitation of authority.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2801.1--Purpose, Authority, Issuance

2801.101 Purpose.

(a) The Justice Acquisition Regulations (JAR) in this chapter are

established to provide procurement regulations that supplement the

Federal Acquisition Regulation (FAR), 48 Code of Federal Regulations

(CFR), Chapter 1. As such, the regulations contained in the JAR will

include coverage of only those areas where agency implementation is

required by the FAR, or where Department of Justice (DOJ) policies and

procedures exist that supplement FAR coverage and directly affect the

contractual relationship between the Department and potential or

existing contractors. The JAR will not repeat FAR coverage.

(b) The FAR contains many references to agency procedures. If the

JAR does not include supplemental guidance under the corresponding part

or subpart, it is because the FAR language is considered to be

sufficient. In those instances where the JAR states ``in accordance

with bureau procedures'', it does not mean that the bureau must have a

procedure. It is intended that the bureau procedures are to be followed

if they exist; however, it does not mean that the bureau must have a

formal written procedure. Where both the JAR and bureau procedures do

not address a FAR subject, the FAR guidance is to be followed.

used in conjunction with the FAR.

Subpart 2801.2--Administration

2801.270-1 Revisions.

In addition to changes published in the Federal Register, the JAR

will be amended by issuance of Justice Acquisition Circulars (JACs)

containing loose-leaf replacement pages which revise parts, subparts,

sections, subsections, paragraphs or subparagraphs. A vertical bar

(edit bar) at the beginning or end of a line indicates that a change

has been made within that line.

Subpart 2801.3--Agency Acquisition Regulations

2801.304 Agency control and compliance procedures.

Pursuant to FAR 1.304, the Procurement Executive (PE) is

responsible for ensuring that bureau acquisition regulations and

directives do not restrain the flexibilities found in the FAR. For this

reason, bureau acquisition regulations shall be forwarded to the PE

upon issuance. The PE reserves the right to revoke the regulations and

directives in this chapter if they are determined to be restrictive.

[[Page 1401]]

Subpart 2801.4--Deviations from the FAR and JAR

Sec. 2801.403 Individual deviations.

Individual deviations from the FAR or the JAR shall be approved by

the head of the contracting activity (HCA). A copy of the deviation

shall be included in the contract file. Copies of all deviations will

be provided to the PE.

Sec. 2801.404 Class deviations.

Requests for class deviations from the FAR or the JAR shall be

submitted to the PE. The PE will consult with the chairperson of the

Civilian Agency Acquisition Council, as appropriate, and send his/her

recommendations to the AAG/A. The AAG/A will grant or deny requests for

such deviations. For the purposes of this chapter, requests for

deviations involving basic ordering agreements, master type contracts,

or situations where multiple awards are made from one solicitation, are

considered to involve more than one contract and therefore considered

to be class deviation requests.

Sec. 2801.470 Requests for class deviations.

Requests for approval of class deviations from the FAR or the JAR

shall be forwarded to the PE. Such requests will be signed by the

Bureau Procurement Chief (BPC). Requests for class deviations shall be

submitted as far in advance as the exigencies of the situation permit

and shall contain sufficient written justification to evaluate the

request.

Subpart 2801.6--Career Development, Contracting Authority, and

Responsibilities

Sec. 2801.601 General.

(a) In accordance with Attorney General Order 1687-93, the

authority vested in the Attorney General with respect to contractual

actions, for goods and services, is delegated to the following

officials:

(1) Assistant Attorney General for Administration (for the offices,

boards, and divisions (OBDs);

(2) Director, Federal Bureau of Investigation;

(3) Director, Bureau of Prisons;

(4) Commissioner, Federal Prison Industries;

(5) Commissioner, Immigration and Naturalization Service;

(6) Administrator, Drug Enforcement Administration;

(7) Assistant Attorney General, Office of Justice Programs;

(8) Director, U.S. Marshals Service;

(9) Director, National Institute of Corrections; and

(10) Inspector General, Office of the Inspector General.

(b) The acquisition authority delegated to the officials in

2801.601(a) may be redelegated to subordinate officials as necessary

for the efficient and proper administration of the Department's

acquisition operations. Such redelegated authority shall expressly

state whether it carriers the power of redelegation of authority.

persons without regard for intermediate organizational levels only

establishes authority to represent the Government in its commercial

business dealings. It is not intended to affect the organizational

relationship between the contracting officers and higher administrative

and supervisory levels in the performance of their duties.

Sec. 2801.602 Contracting officers.

Sec. 2801.602-3 Ratification of unauthorized commitments.

The HCA may delegate the authority to ratify unauthorized

commitments to the chief of the contracting office, except for those

actions effected by his or her office. Dollar thresholds for

delegations made under this section will be determined by the HCA.

Copies of all ratifications are to be provided to the PE.

Sec. 2801.603 Selection, appointment and termination of appointment.

Sec. 2801.603-1 Department of Justice Acquisition Career Management

Program.

(a) Each Bureau Procurement Chief shall develop and manage an

acquisition career management program for contracting personnel in his

or her component, consistent and uniform with this section and the

Department of Justice Acquisition Procurement Career Management

Program.

(b) The program shall cover all contracting personnel in the

following categories:

(1) General Schedule (GS-1102) Contracting Series;

(2) Contracting officers, regardless of General Schedule Series,

with contracting authority above the simplified acquisition threshold;

(3) Purchasing Series (GS-1105), other individuals performing

purchasing duties and individuals with contracting authority between

the micro purchase and simplified acquisition thresholds.

(4) All Contracting Officer Representatives/Contracting Officer

Technical Representatives, or equivalent positions.

(1) Management information system. Standardized information on the

acquisition workforce will be collected and maintained. To the maximum

extent practicable, such data requirements shall conform to the

standards established by the Office of Personnel Management for the

Central Personnel Data File and shall be compatible with the Department

of Justice acquisition workforce management information system.

(2) Individual assessments and development plans for personnel in

the GS-1102 Contracting Series.

(i) An individual assessment by a supervisor of each covered

employee's state of competence to perform the full range of potential

duties of his or her job; and

(ii) An individual development plan to schedule classroom, on-the-

job training, or other training to develop the employee's skill level

to an appropriate level in each area of competence necessary to perform

his or her job.

(iii) Individual assessments and development plans should be

designed to fit the needs of the component, but they should be built

upon the units of competence and instruction prepared by the Federal

Acquisition Institute whenever feasible. Individual development plans

should attempt to bring the employee to an appropriate level of skill

in all necessary competencies in the field of procurement. In general,

a proficiency skill level of 3, as defined in Attachment 1 to OFPP

Policy Letter 92-3, shall be obtained for any contracting duty that is

actually required to be performed on the job. Individual assessments

and development plans should be reviewed annually and revised as

appropriate, until the employee reaches the full competency level of

his or her job.

(iv) Employees who perform only purchasing duties, regardless of

occupational series, shall be required to obtain the requisite level of

skill only in competencies involving simplified acquisitions. If the

employee's duties are expanded to include contracting duties, then

skill procurement competencies must be assessed and developed.

(v) Individual assessments of covered employee skills shall be

completed within 90 days of the employee's entry on duty.

(3) Mandatory training. Training shall be provided for the

identified categories of contracting personnel to meet the minimum

standards identified in OFPP Policy Letter 97-01.

(4) Skills currency. Contract Specialists (GS-1102) and contracting

officers with authority to obligate funds above the micropurchase

threshold that have satisfied the mandatory training

[[Page 1402]]

requirements, shall be provided the equivalent of at least 40 hours of

continuing procurement and acquisition related education and training

every two years for the purpose of maintaining the currency of

acquisition knowledge and skills.

(5) Program funding. Bureau Procurement Chiefs are responsible for

assessing the funding needs to provide for the education and training

of their acquisition workforce and requesting such funding in the

annual budget process.

2801.603-3 Appointment.

Contracting officers whose authority will be limited to micro-

purchases shall be appointed in writing and include any limitations to

that authority.

Subpart 2801.70--Contracting Officer's Technical Representative

2801.7001-701 General.

Contracting officers may appoint individuals selected by program

offices to act as authorized representatives in the monitoring and

administration of a contract. Such officials shall be designated as

Contracting Officers' Technical Representatives (COTRs).

2801.7001-702 Selection, appointment, and limitation of authority.

(a) COTR Standards Program. This subpart sets forth policies and

procedures for establishing standards for COTRs in DOJ. The program

sets forth minimum standards for individuals to be eligible for an

appointment as a COTR.

(b) Applicability. the eligibility requirements of this subpart

apply to all individuals who are designated by the contracting officer

as COTRs.

appointment as a DOJ COTR, the following standards must be met:

(1) The candidate must attend and successfully complete a minimum

of a 16-hour basic COTR course; and

(2) The candidate must attend a minimum of 1 hour training

specifically in procurement ethics, either through courses offered

periodically by the Department, the bureaus, or a Government or

commercial vendor.

(d) Limitations. Each COTR appointment made by the contracting

officer shall clearly state that the representative is not an

authorized contracting officer and does not have the authority under

any circumstances to:

(1) Award, agree to award, or execute any contract, contract

modification, notice of intent, or other form of binding agreement;

(2) Obligate, in any manner, the payment of money by the

Government;

(3) Make a final decision on any contract matter which is subject

to the clause at FAR 52.233-1, Disputes; or

(4) Terminate, suspend, or otherwise interfere with the

contractor's right to proceed, or direct any changes in the

contractor's performance that are inconsistent with or materially

change the contract specifications.

(e) Termination. Termination of the COTR's appointment shall be

made in writing by the contracting officer and shall give the effective

date of the termination. The contracting officer shall promptly modify

the contract once a COTR termination notice has been issued. A

termination notice is not required when the COTR's appointment

terminates upon expiration of the contract.

(f) Waivers. No individual may serve as a COTR on any contract

without the requisite training and signed COTR certificate for the

file. In the rare event that there is an urgent requirement for a

specific individual to serve as a COTR and the individual has not

successfully completed the required training, the BPC may waive the

training requirements and authorize the individual to perform the COTR

duties, for a period of time not to exceed 120 days. The waiver will be

granted in accordance with bureau procedures.

PART 2802--DEFINITIONS OF WORDS AND TERMS

Subpart 2.1--Definitions

2802.101 Definitions.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2.1--Definitions

2802.101 Definitions.

Throughout this chapter, the following words and terms are used as

defined in this subpart unless the context in which they appear clearly

requires a different meaning, or a different definition is prescribed

for a particular part or portion of a part.

(a) Bureaus means contracting activities. (See contracting activity

in this subpart.)

(b) Bureau procurement chief means that supervisory official who is

directly responsible for supervising, managing and directing all

contracting offices of the bureau.

who is directly responsible for supervising, managing and directing a

contracting office.

(d) Contracting activity means a component within the Department

which has been delegated procurement authority to manage contracting

functions associated with its mission. See 2801.601(a).

(e) DOJ means the Department of Justice.

(f) Head of the contracting activity means those officials

identified in 2801.601(a) having responsibility for supervising,

managing, and directing the operations of the contracting activities.

(g) JAR means the Department of Justice Acquisition Regulations.

(h) JMD means the Justice Management Division.

(i) OBD means the offices, boards, and divisions within the Justice

Department.

(j) PE means the Procurement Executive for the Department of

Justice.

PART 2803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

Subpart 2803.1--Safeguards

2803.101-3 Agency regulations.

2803.104 Procurement integrity.

2803.104-10 Violations or possible violations.

2803.104-70 Ethics program training requirements.

Subpart 2803.2--Contractor Gratuities to Government Personnel

2803.203 Reporting suspected violations of the Gratuities clause.

2803.204 Treatment of violators.

Subpart 2803.3--Reports of Suspected Antitrust Violations

2803.301 General.

Subpart 2803.9--Whistleblower Protections for Contractor Employees

2803.905 Procedures for investigating complaints.

2803.906 Remedies.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2803.1--Safeguards

2803.101-3 Agency regulations.

The DOJ regulations governing Standards of Conduct are contained in

5 CFR part 2635.

2803.104 Procurement integrity.

2803.104-10 Violations or possible violations.

(a) Upon receipt of information of a violation or possible

violation of section 27 of the Act, the contracting officer must do the

following:

(1) Refer the matter to the office of the Inspector General or

other office designated in Attorney General Order 1931-94; and,

[[Page 1403]]

(2) Make the determination required by FAR 3.104-10(a) and followed

the procedures prescribed therein.

(b) The individual referenced in FAR 3.104-10(a)(1) is the Bureau

Procurement Chief.

when designating authority under this subpart.

(d) The HCA, or designee, shall refer information regarding actual

or possible violations of section 27 of the Act to the Office of the

Inspector General or other office designated in Attorney General Order

1931-94 for guidance before taking action.

(e) If the HCA, or designee, receiving the information of a

violation, or possible violation, determines that award is justified by

urgent and compelling circumstances, or is otherwise in the interest of

the Government, then the contracting officer may be authorized to award

the contract after notification to the Office of the Inspector General

or other office designated in Attorney General Order 1931-94.

(f) The contracting officer will be advised, or directed by the

HCA, or designee, as to the action to be taken. The types of actions

that would normally be taken when a violation has occurred that

affected the outcome of a procurement are listed in FAR 3.104-11(d).

(g) The PE shall be advised of all instances where violations have

been determined to have occurred. Information must describe the

violation as well as actions taken.

2803.104-70 Ethics program training requirements.

It is the responsibility of the bureaus to provide training for

``procurement officials'' concerning the requirements of FAR 3.104. The

bureau procurement training efforts should be coordinated with the

Department's Ethics Official, who is responsible for developing agency

ethics training plans, to include briefings on ethics and standards of

conduct for employees who are contracting officers and procurement

officials. The Ethics Official should be contacted directly to schedule

training.

Subpart 2803.2--Contractor Gratuities to Government Personnel

2803.203 Reporting suspected violations of the Gratuities clause.

DOJ personnel shall report suspected violations of the Gratuities

clause to the contracting officer or chief of the contracting office in

writing. The report shall clearly state the circumstances surrounding

the incident, including the nature of the gratuity, the behavior or

action the gratuity was to influence, and the persons involved. The

contracting officer, after review, shall forward the report along with

his or her recommendations regarding the treatment of the violation in

accordance with FAR 3.204(c) to the HCA or designee.

2803.204 Treatment of violations.

(a) The HCA or designee shall determine whether adverse action

against the contractor in accordance with FAR 3.204(c) should be taken.

In reaching a decision, the HCA or designee shall consult with the

contracting activity's legal advisor and the Office of the Inspector

General or other office designated in Attorney General Order 1931-94.

(b) Prior to taking any action against the contractor the HCA or

designee shall allow the contractor the opportunity to present opposing

arguments in accordance with FAR 3.204(b).

been determined to have occurred. Information must describe the

violation as well as actions taken.

Subpart 2803.3--Reports of Suspected Antitrust Violations

2803.301 General.

Reports of suspected antitrust violations shall be referred to the

AG and PE in accordance with bureau procedures.

Supart 2803.9--Whistleblower Protections for Contractor Employees

2803.905 Procedures for investigating complaints.

(a) The Inspector General shall conduct an investigation and

provide a written report of findings to the HCA.

(b) The HCA will ensure that the Inspector General provides the

report of finding as specified in FAR 3.905(c).

opportunity to submit a written response to the report of findings

within 30 days to the HCA. Extensions of time to file a written

response may be granted by the HCA.

(d) The HCA may at any time request additional investigative work

be done on the complaint.

2803.906 Remedies.

(a) Upon determination that a contractor has subjected one of its

employees to a reprisal for providing information, the HCA may take one

or more actions specified in FAR 3.906(a).

(b) Whenever a contractor fails to comply with an order, the HCA

shall request an action be filed for enforcement of such order in the

United States district court.

PART 2804--ADMINISTRATIVE MATTERS

Subpart 2804.4--Safeguarding Classified Information Within Industry

2804.402 General.

2804.403 Responsibilities of contracting officers.

2804.470 Contractor Personnel Security Program.

2804.470-1 Policy.

2804.470-2 Responsibilties.

Subpart 2804.5--Electronic Commerce in Contracting

2804.506 Exemptions.

Subpart 2804.6--Contract Reporting

2804.602 Federal Procurement Data System.

Subpart 2804.8--Government Contract Files

2804.805 Storage, handling, and disposal of contract files.

Subpart 2804.9--Information Reporting to the Internal Revenue Service

2804.901 Definitions.

2804.902 Contract information.

2804.970 Special reporting exceptions.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2804.4--Safeguarding Classified Information Within Industry

2804.402 General.

Classified acquisitions or contracts which require access to

classified material, as defined in FAR 4.401, for their performance

shall be subject to the policies, procedures, and instructions

contained in departmental regulations in this chapter and shall be

processed in a manner consistent with those regulations.

2804.403 Responsibilities of contracting officers.

For proposed solicitations and contracts which may require access

to classified material or where guard services are assigned to

safeguard departmental activities in possession of classified

information, the contracting officer will consult with the COTR and the

Director, Security and Emergency Planning Staff, JMD, to determine the

appropriate security measures to safeguard such material and

information.

2804.470 Contractor Personnel Security Program.

2804.470-1 Policy.

It is the policy of the Department of Justice that all acquisitions

which allow

[[Page 1404]]

unescorted contractor access to Government facilities or sensitive

information contain, as appropriate, requirements for appropriate

personnel security screening by the contractor. To the maximum extent

practicable, contractors shall be made responsible for the performance

of personnel security screening. The personnel security screening may

vary from one acquisition to another, depending upon the type, context,

duration and location of the work to be performed. Classified contracts

are exempted from the requirements of this section because they are

governed by he requirements of Executive Order 12829 (January 6, 1993).

2804.470-2 Responsibilities.

(a) The primary acquiring component, together with its Security

Program Manager, is responsible for providing the contracting officer

with the appropriate contractor personnel security screening

requirements (including waiver requirements, if appropriate) to be

included in the statement of work.

(b) The contracting officer is responsible for including in the

contract file for all such acquisitions, a certification made by the

responsible Security Program Manager that the Personnel security

requirements of the contract are adequate to ensure the security of

Departmental operations, information and personnel.

responsible for monitoring and ensuring that the contractor personnel

security requirements of the contract are accomplished.

(d) For purposes of this section, the term Contracting Officer

includes anyone empowered to place orders under Blanket Purchase

Agreements (BPA) or any other existing contract vehicle and/or through

the use of the government-wide commercial purchase card.

Subpart 2804.5--Electronic Commerce in Contracting

2804.506 Exemptions.

Pursuant to FAR 4.506(b), all determinations that FACNET processing

is not cost-effective or practicable for the contracting office, or

portions thereof, shall be initiated by the HCA and submitted to the PE

for processing to the Attorney General for signature.

Subpart 2804.6--Conract Reporting

2804.602 Federal Procurement Data System.

(a) Federal Procurement Data System (FPDS) reports shall be

submitted to the Procurement Policy and Review Group (PPRG) within 21

days of the close of each of the first three quarters of the fiscal

year and within 30 days after the close of the fourth quarter. Specific

preparation procedures are contained in the FPDS Reporting Manual and

the Product and Service Code Manual.

(b) Bureaus shall submit their annual summary subcontract reports,

together with copies of their Standard Form 295 to PPRG, and enter

their summary subcontract data on-line to GSA, not later than February

15th of the following year.

address, and telephone number of the individual who will provide day-

to-day operational contact within the bureau for the implementation of

the FPDS. Changes and updates shall be forwarded to PPRG within 10 days

after they occur. It is the responsibility of the bureau contacts to

ensure that all actions are reported and submitted to PPRG in a timely

manner and that all statistics and reports are accurate, current, and

complete. BPCs shall be responsible for validating the data.

Subpart 2804.8--Government Contract Files

2804.805 Storage, handling, and disposal of contract files.

In accordance with FAR 4.805, each bureau shall prescribe

procedures for the handling, storage, and disposing of contract files.

Subpart 2804.9--Information Reporting to the Internal Revenue

Service

2804.901 Definitions.

Classified contract, as used in this subpart, means a contract such

that the fact of its existence or its subject matter has been

designated and clearly marked or clearly represented, pursuant to the

provisions of Federal law or an Executive Order, as requiring a

specific degree of protection against unauthorized disclosure for

reasons of national security.

Confidential contract, as used in this subpart, means a contract,

the reporting of which to the Internal Revenue Service (IRS) as

required under 26 U.S.C. 6050M, would interfere with the effective

conduct of a confidential law enforcement activity, such as contracts

for sites for undercover operations or contracts with informants, or

foreign counterintelligence activity.

2804.902 Contract information.

(a) Pursuant to FAR 4.902, the HCA, or delegate, shall certify to

the PE, in the format specified in this section, under penalty of

perjury, that such official has examined the information submitted by

that bureau as its FPDS data, that the data has been prepared pursuant

to the requirements of 26 U.S.C. 6050M, and that, to the best of such

official's knowledge and belief it is compiled from bureau records

maintained in the normal course of business for the purpose of making a

true, correct and complete return as required by 26 U.S.C. 6050M.

(b) The following certification will be signed and dated by the

HCA, or delegate, and submitted with each bureau quarterly FPDS report

(as specified by 2804.602).

Certification

I, ________ (Name), ________ (Title) under the penalties of

perjury have examined the information to be submitted by ________

(Bureau) to the Procurement Executive, for making information

returns on behalf of the Department of Justice to the Internal

Revenue Service, and certify that this information has been prepared

pursuant to the requirements of 26 U.S.C. 6050M and that it is to

the best of my knowledge and belief, a compilation of bureau records

maintained in the normal course of business for the purpose of

providing true, correct and complete returns as required by 26

U.S.C. 6050M.

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Signature

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Date

Department, transmit the data to the Federal Procurement Data Center

(FPDC) and authorize the FPDC to make returns to the IRS on behalf of

the agency.

2804.970 Special reporting exceptions.

(a) The Technical and Miscellaneous Revenue Act of 1988 (Pub. L.

100-647) amended 26 U.S.C. 6959M to allow exceptions to the reporting

requirements for certain classified or confidential contracts.

(b) The head of the agency has determined that the filing of

information returns, as required by 26 U.S.C. 6050M, on confidential

contracts, which involve law enforcement or foreign counterintelligence

activities, would interfere with the effective conduct of those

confidential law enforcement or foreign counterintelligence activities,

and that the special reporting exceptions added to 26 U.S.C. 6050M by

The Technical and Miscellaneous

[[Page 1405]]

Revenue Act of 1988 apply to these types of contracts.

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 2805--PUBLICIZING CONTRACT ACTIONS

Subpart 2805.2--Synopses of Proposed Contract Actions

2805.201-70 Departmental notification.

Subpart 2805.3--Synopses of Contract Awards

2805.302-70 Departmental notification.

Subpart 2805.5--Paid Advertisements

2805.502 Authority.

2805.503-70 Procedures.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2805-2--Synopses of Proposed Contract Actions

2805.201-70 Departmental notification.

(a) A copy of each synopsis of a proposed contract action sent to

the Department of Commerce, shall be furnished to the Director, Office

of Small and Disadvantaged Business Utilization (OSDBU), Justice

Management Division (JMD).

(b) Contracting officers shall document, in the contract file, that

a copy of the notice has been forwarded to the OSDBU. A ``cc'' to the

OSDBU on the file copy of the Commerce Business Daily (CBD) notice

shall be considered adequate documentation.

Subpart 2805.3--Synopses of Contract Awards

2805.302-70 Departmental notification.

(a) The contracting officer shall forward a copy of the synopsis of

contract award, as prepared under FAR 5.302, to the Director, OSDBU,

JMD.

(b) Contracting officers shall document in the contract file that a

copy of the notice has been forwarded to the OSDBU. A ``cc'' to the

OSDBU on the file copy of the CBD notice shall be considered adequate

documentation.

Subpart 2805.5--Paid Advertisements

This subpart provides policies and procedures for the procurement

of paid advertising as covered by 5 U.S.C. 302, 44 U.S.C. 3701, 3702,

and 3703, and Title 7, Chapter 5-25.2, General Accounting Office Policy

and Procedures Manual for Guidance of Federal Agencies.

2805.502 Authority.

(a) Authorization for paid advertising is required for newspapers

only. Pursuant to 28 CFR 0.14, the authority to approve publication of

paid advertisements in newspapers has been delegated to the officials

listed in 2801.601(a). This authority may be redelegated as

appropriate.

(b) Authority to purchase paid advertising must be granted in

writing by an official delegated such authority. No advertisement,

notice, or proposal will be published prior to receipt of advance

written authority for such publication. No voucher for any such

advertisement or publication will be paid unless there is presented,

with the voucher, a copy of such written authority. Authority shall not

be granted retroactively.

2805.503-70 Procedures.

(a) Agency Officials exercising the authority delegated by 2805.502

(a) and (b) shall do so in accordance with the procedures set forth in

FAR 5.503 and those set forth in this subsection.

(b) Requests for procurements of advertising shall be accompanied

by written authority to advertise or publish which sets forth

justification and includes the names of newspapers or journals

concerned, frequency and dates of proposed advertisements, estimated

cost, and other pertinent information.

essential details of invitations for bids and requests for proposals

including those for the sale of personal property and for the

recruitment of employees.

(d) Procedures for payment of vouchers are contained in Title 7,

Chapter 5-25.2, General Accounting Office Policy and Procedures Manual

for Guidance of Federal Agencies.

PART 2806--COMPETITION REQUIREMENTS

Subpart 2806.3--Other Than Full and Open Competition

2806.302 Circumstances permitting other than full and open

competition.

2806.302-7 Public interest.

2806.302-70 Determination and findings.

2806.303 Justifications.

2806.303-1 Requirements.

2806.303-2 Content.

2806.304 Approval of the justification.

Subpart 2806.5--Competition Advocates

2806.501 Requirement.

2806.502 Duties and responsibilities.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2806.3--Other than Full and Open Competition

2806.302 Circumstances permitting other than full and open

competition.

2806.302-7 Public interest.

2806.302-70 Determination and findings.

(a) Procedure. The determination and findings (D&F) required by FAR

6.302-7(c)(1) shall be prepared in the format provided in paragraph (b)

of this subsection. The original D&F and documentation supporting the

use of this exception to the requirement for full and open competition

shall be submitted to PPRG, JMD, for concurrence and coordination to

the Attorney General for signature.

(b) Format. The following format shall be used for the D&F:

Department of Justice, Washington, DC 20530, Determination and

Findings

Authority To Use Other Than Full and Open Competition:

Upon the basis of the following findings and determination,

which I hereby make pursuant to the authority of 41 U.S.C.

253(c)(7), as implemented by FAR 6.302-7, it is in the public

interest to provide for other than full and open competition in the

contract action described below.

Findings:

1. The (1) purposes to enter into a contract for the acquisition

of (2).

2. Use of the authority cited above is necessary and in the

public interest for the following reasons: (3)

Determination

For the reasons described above, it is necessary and in the

public interest to use other than full and open competition in the

proposed acquisition.

----------------------------------------------------------------------

Signature

----------------------------------------------------------------------

Date

Notes:

(1) Name of contracting activity.

(2) Brief description of supplies or services.

(3) Explain the need for use of the authority.

2806.303 Justification.

2806.302-1 Requirements.

Pursuant to FAR 6.303-1(d), a copy of the justification shall be

forwarded through the Department's Competition Advocate to the

Department's point of contact with the Office of the United States

Trade Representative.

2806.303-2 Content.

In addition to the information required by FAR 6.303-2,

justifications requiring the approval of the PE shall contain the

following documents:

(a) A written Acquisition Plan as required by FAR 7.102, and part

2807 of

[[Page 1406]]

this chapter. If a plan was not prepared, explain why planning was not

feasible or accomplished.

(b) A copy of the CBD announcement or proposed announcement in

accordance with the requirements of FAR 5.203.

in FAR 6.303-2, the justification shall include the statement of need

as submitted by the requiring activity and any subsequent changes or

revisions to the specifications.

(d) Any additional documentation that may be unique to the proposed

procurement and is relevant to the justification.

2806.304 Approval of the justification.

(a) All justifications for contract actions over the contracting

officer's approval dollar threshold shall be submitted to the BPC for

concurrence before being forwarded to the contracting activity

competition advocate for approval. Justifications requiring approval by

the PE shall be further submitted for the concurrence of the

contracting activity competition advocate and the HCA, or designee,

before being forwarded to the PE for approval.

(b) After approval by the PE, the signed original will be returned

to the contracting activity and one copy will be retained by the PPRG,

JMD.

full and open competition shall be approved in accordance with bureau

procedures.

Subpart 2806.5--Competition advocates

2806.501 Requirement.

In accordance with FAR 6.501:

(a) The Assistant Director, Procurement Policy and Review Group,

Management and Planning Staff, Justice Management Division, has been

designated as the Competition Advocate for the Department of Justice.

(b) The agency head will appoint, in each bureau, an official to be

the contracting activity competition advocate. The contracting activity

competition advocates shall be vested with the overall responsibility

for competition activities within their contracting activity. No

individual in the contracting office at or below the level of chief of

the contracting office may serve as the contracting activity

competition advocate. An individual at any level above the BPC may

serve as contracting activity competition advocate.

2806.502 Duties and responsibilities.

In addition to the duties and responsibilities set forth in FAR

6.502(b) and elsewhere in this chapter, contracting activity

competition advocates shall:

(a) Actively enforce the Department's Competition Advocacy Program

within the contracting activity and ensure that systems are established

for the effective internal control of contracting activity functions

and activities which implement the Department's Competition Advocacy

Program.

(b) Implement specific goals and objectives to enhance competition

and the acquisition of commercial items.

30 of each year, an annual report of competition advocacy activities

conducted during the prior fiscal year.

PART 2807--Acquisition Planning

Subpart 2807.1--Acquistion Plans

2807.102 Policy.

2807.102-70 Applicability.

2807.103 Agency-head responsibilities.

2807.103-70 Other officials' responsibilities.

2807.105 Contents of written acquisition plans.

Subpart 2807.5--Inherently Governmental Functions

2807.503 Policy.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2807.1--Acquisition Plans

2807.102 Policy.

(a)(1) In accordance with FAR 7.1, DOJ contracting activities shall

perform acquisition planning and conduct market research for all

acquisitions in order to promote and provide for:

(i) Full and open competition (see FAR part 6);

(ii) Maximum practicable competition for those acquisitions where

full and open competition is not required by FAR part 6; and

(iii) The acquisition of commercial items or, when commercial items

are not available, nondevelopmental items to the maximum extent

practicable.

(2) The degree of planning and market research may vary, depending

on such factors as the acquisition's size, scope and complexity.

(b) Acquisition planning shall be the joint responsibility of both

the contracting and program offices. All acquisition plans shall be

prepared sufficiently in advance of solicitation release dates to

ensure that requirements are presented in a way that promotes full and

open competition and provides sufficient time for the identification

and resolution of impediments that could delay the acquisition or lead

to increased cost or technical risk.

2807.102-70 Applicability.

(a) Planning commensurate with the complexity and dollar value of

the individual requirement shall be performed for all acquisitions,

except for those acquisitions listed in paragraph (c) of this

subsection which may be exempt from the planning process. Heads of

contracting activities may authorize the use of oral plans for simple

and/or small dollar acquisitions. When oral plans are used, the file

should be documented with the name of the individual who approved the

plan.

(b) Written acquisition plans shall be prepared for all major

systems acquisitions as defined in 2834.002.

acquisition planning program:

(1) Architect-engineering services;

(2) Unsolicited proposals (when deemed innovative and unique in

accordance with FAR 15.5);

(3) Regulated utility services where services are available from

only one source;

(4) Acquisitions made from or through other Government agencies;

and

(5) Contract modifications which exercise an option or add funds to

an incrementally funded contract (provided there is an approved

acquisition planning document for the original action and there is no

significant deviation from that plan).

2807.103 Agency-head responsibilities.

The AAG/A may establish acquisition planning criteria and

thresholds for those bureaus who:

(a) Fail to allow ample time for conducting competitive

acquisitions;

(b) Develop a pattern of awarding urgent requirements that

generally restrict competition; and

combined under one solicitation and miss opportunities to obtain lower

costs through volume purchasing, reduce administrative costs in

processing one contract action versus multiple actions, and standardize

goods and services.

2807.103-70 Other officials' responsibilities.

(a) In accordance with FAR 7.1, the HCA shall develop an

acquisition planning program for all acquisitions to ensure that its

needs are met in the most effective, economical, and timely manner.

[[Page 1407]]

(b) Heads of contracting activities have the flexibility to develop

programs that are best suited to their individual needs. Criteria and

thresholds shall be established at which increasingly greater detail

and formality in the planning process is required. DOJ components are

encouraged to keep paperwork to a minimum and to put a premium on

simplicity.

requirements personnel consider the use of:

(1) The metric system of measurement consistent with 15 U.S.C.

2205(b); and

(2) Environmentally preferable and energy-efficient products and

services.

2807.105 Contents of written acquisition plans.

(a) HCAs shall prescribe format and content of acquisition planning

documents that are commensurate with the complexity and dollar value of

the individual acquisition (sample acquisition planning documents for

both simple and complex acquisitions will be made available by PPRG,

JMD, and may be used or modified as appropriate).

(b) HCAs shall include, at a minimum, the content elements at FAR

7.105 and 106 for all major systems acquisitions as defined in

2834.002.

Subpart 2807.5--Inherently Governmental Functions

2807.503 Policy.

The requirements official shall provide the contracting officer,

concurrent with the transmittal of the statement of work (or

modification thereof), a written determination that none of the

functions to be performed are inherently governmental. Any disputes

concerning this determination shall be resolved by the contracting

officer, after consultation with the requirements official. The

contracting officer's determination shall be final.

PART 2808--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 2808.8--Acquisition of Printing and Related Supplies

2808.802 Policy.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2808.8--Acquisition of Printing and Related Supplies

2808.802 Policy.

The Director, Facilities and Administrative Services Staff, has

been designated to serve as the central printing authority for the

Department.

PART 2809--CONTRACTOR QUALIFICATIONS

Subpart 2809.4--Debarment, Suspension, and Ineligibility

2809.402 Policy.

2809.404 List of parties excluded from Federal procurement and

nonprocurement programs.

2809.405 Effect of listing.

2809.405-1 Continuation of current contracts.

Subpart 2809.5--Organizational and Consultant Conflict of Interest

2809.503 Waiver.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2809.4--Debarment, Suspension, and Ineligibility

2809.402 Policy.

Contracting activities shall:

(a) Consider debarment or suspension of a contractor when cause is

shown as listed under FAR 9.406-2 and FAR 9.407-2. Contracting staffs

should consult with their appropriate legal counsel prior to making a

decision to initiate debarment or suspension proceedings. If a

determination is made that available facts do not justify beginning

debarment or suspension proceedings, the file should be documented

accordingly. This determination should be subject to reconsideration if

new information or additional fact-finding so justifies.

(b) If the decision is made to initiate debarment and/or suspension

of a contractor, immediately prepare a notice in accordance with FAR

9.046-3(c) or FAR 9.407-3(c). The draft notice, along with the

administrative file containing all relevant facts and analysis shall be

forwarded to the PE, as the debarring and suspending official,

following review by the activity's legal counsel and BPC.

(1) Review the notice and administrative file for sufficiency and

provide for review by other DOJ officials as considered appropriate;

(2) If it is determined that action is warranted, give the

contractor prompt notice of the proposed debarment or suspension, in

accordance with FAR 9.406-3(c) or FAR 9.407-3(c);

(3) Direct additional fact-finding as necessary when material facts

are in dispute.

(4) Notify the contractor of the final decision to debar or

suspend, including a decision not to debar or suspend, in accordance

with FAR 9.406-3(c) and FAR 9.407-3(c).

2809.404 List of parties excluded from federal procurement and

nonprocurement programs.

(a) The PE shall:

(1) Provide GSA notification of the information set forth in FAR

9.404(b) within five working days after debarring or suspending a

contractor or modifying or rescinding such an action.

(2) Maintain agency-wide records of debarred or suspended

contractors in accordance with FAR 9.404.

(b) Contracting activities shall provide an effective system to

ensure that contracting staff consult the ``List of Parties Excluded

from Federal Procurement and Nonprocurement Programs'' prior to

soliciting offers from, awarding or extending contracts to, or

consenting to subcontracts with contractors on the list.

2809.405 Effect of listing.

(a) Contractors debarred, suspended, or proposed for debarment are

excluded from receiving contracts, and bureaus shall not solicit offers

from, award contracts to, or consent to subcontracts with these

contractors, unless the HCA determines that there is a compelling

reason for such action and the PE approves such determinations.

(b) Bids received from any listed contractor in response to an

invitation for bids shall be entered on the abstract of bids, and

rejected unless the HCA determines in writing that there is a

compelling reason to consider the bid and the PE approves such action.

contractor shall not be evaluated for award or included in the

competitive range, nor shall discussions be conducted with a listed

offeror during a period of ineligibility, unless the HCA determines in

writing that there is a compelling reason to do so and the PE approves

such action.

2809.405-1 Continuation of current contracts.

(a) In accordance with FAR 9.405-1, contracting activities may

continue contracts or subcontracts in existence at the time a

contractor is suspended or debarred unless it is determined that

termination of the contract is in the best interest of the Government.

In making this determination, contracting activities shall consider the

seriousness of the act or omission leading to the debarment or

suspension, the effect of debarment or suspension on the contractor's

ability to continue operations, and the Department's ability to

safeguard its interests and receive satisfactory performance.

(b) Contracting activities shall not renew or otherwise extend the

duration

[[Page 1408]]

of current contracts, or consent to subcontracts, with contractors

debarred, suspended, or proposed for debarment, unless the HCA states,

in writing, the compelling reasons for renewal or extension and the PE

approves such action.

Subpart 2809.5--Organizational and Consultant Conflicts of Interest

2809.503 Waiver.

The HCA may waive any general rule or procedure of FAR 9.5 by

determining that its application in a particular situation would not be

in the Government's interest.

PART 2811--DESCRIBING AGENCY NEEDS

2811.001 Definitions.

2811.002 Policy.

Subpart 2811.1--Selecting and Developing Requirements Documents

2811.103 Market acceptance.

2811.104-70 Brand-name or equal description.

Subpart 2811.6--Priorities and Allocations

2811.603 Procedures.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

2811.001 Definitions.

Dual systems means the use of both inch-pound and metric systems.

For example, an item is designed, produced and described in inch-pound

values with soft metric values also shown for information or comparison

purposes.

Hybrid systems means the use of both inch-pound and standard metric

values in specifications, standards, supplies, and services; e.g., an

engine with internal parts in metric dimensions and external fittings

or attachments in inch-pound dimensions.

Metric system means the International System of Units established

by the General Conference of Weights and Measures in 1960.

Soft metric means the result of mathematical conversion of inch-

pound measurements to metric equivalents in specifications, standards,

supplies, and services. The physical dimensions are not changed.

2811.002 Policy.

Consistent with the policy expressed in FAR 11.002(b),

solicitations must include specifications and purchase descriptions

stated in metric units of measurement whenever metric is the accepted

industry system. Whenever possible, commercially developed metric

specifications and internationally, or domestically developed voluntary

standards, using metric measurements, must be adopted. While an

industry is in transition to metric specifications, solicitations must

include requirements documents stated in soft metric, hybrid, or dual

systems, except when impractical or inefficient.

Subpart 2811.1--Selecting and Developing Requirements Documents

2811.103 Market acceptance.

Pursuant to FAR 11.103, the HCA or designee at a level not lower

than the BPC has the authority to require offerors to demonstrate that

the items offered meet the criteria set forth in FAR 11.103(a).

2811.104-70 Brand-name or equal description.

When a brand-name or equal description is used, the clause set

forth in 2852.211-70, Brand-Name or Equal, shall be inserted into the

solicitation.

Subpart 2811.6--Priorities and Allocations

2811.603 Procedures.

The PE is the agency official delegated authority to exercise

priority authority on behalf of the Department. Any request for a

priority rating on a contract or order must be submitted to PPRG, JMD,

in accordance with the procedures in this subpart.

(a) The requesting activity shall submit, to the PE, a description

of the supplies or services requiring a priority rating and a complete

justification for the necessity of a rated order including the method

and type of contract and the anticipated award date. The justification

must also state the level of priority rating requested and comply with

the requirements of the Defense Priorities and Allocations System.

(b) Upon receipt, the PPRG shall review the request for

completeness and establish appropriate liaison with the Department of

Commerce (DOC), the administering agency. Depending on the nature of

the requirement, the PPRG may schedule a meeting with DOC officials to

present the proposal. In such cases, a representative from the

requiring activity may be requested to attend.

material shall call PPRG before submitting their request to ensure

appropriate transmission and handling between the requesting activity

and PPRG.

PART 2812--ACQUISITION OF COMMERCIAL ITEMS

Subpart 2812.3--Solicitation Provisions and Contract Clauses for the

Acquisition of Commercial Items

2812.302 Tailoring of provisions and clauses for the acquisition of

commercial items.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2812.3--Solicitation Provisions and Contract Clauses for

the Acquisition of Commercial Items

2812.302 Tailoring of provisions and clauses for the acquisition of

commercial items.

Pursuant to FAR 12.302(c), the HCA or designee at a level not lower

than the BPC is authorized to approve clauses or additional terms or

conditions for inclusion in solicitations or contracts for commercial

items that are inconsistent with customary commercial practices.

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

PART 2813--SIMPLIFIED ACQUISITION PROCEDURES

Subpart 2813.1--General

2813.103 Policy--Purchases at or below the micro-purchase

threshold.

Subpart 2813.4--Imprest Fund

2813.401 General.

Subpart 2813.5--Purchase Orders

2813.505 Purchase order and related forms.

Subpart 2813.70--Certified Invoice Procedure

2813.7001 Policy.

2813.7002 Procedure.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2813.1--General

2813.103 Policy--Purchases at or below the micro-purchase threshold.

To the maximum extent practicable, the Government Purchase Card

shall be used as the primary method for transacting micro-purchases.

Subpart 2813.4--Imprest Fund

2813.401 General.

Regulations governing the operation and procedures of the imprest

fund shall be contained in internal bureau regulations. Individuals

delegated the authority to withdraw from the imprest fund are further

subject to the limitations contained in their delegation memorandum.

[[Page 1409]]

Subpart 2813.5--Purchase Orders

2813.505 Purchase order and related forms.

(a) In accordance with FAR 13.505, for other than commercial items,

bureaus may use order forms other than Standard Form (SF) 1449, OF 347

and 348 and may print on those forms, clauses considered to be suitable

for purchases.

(b)(1) Contracting activities using the SF 44 will be responsible

for instructing authorized users as to the limitations and procedures

for use of the form as outlined in FAR 13.505.

(2) Since the SF 44 is an accountable form, a record shall be

maintained of: serial numbers of the forms; to whom issued; and, the

date issued. SF 44s shall be kept securely under lock and key to

prevent unauthorized use. A reservation of funds shall be established

to cover total anticipated expenditures prior to use of the SF 44.

Subpart 2813.70--Certified Invoice Procedure

2813.7001 Policy.

Under limited circumstances as described in this subpart, supplies

or services directly related to mission accomplishment, may be acquired

on the open market from local suppliers at the site of the work or use

point, using vendor's invoices under the certified invoice procedure,

instead of issuing purchase orders. Certified invoice procedures may

not be used to place orders under established contracts.

2813.7002 Procedure.

(a) Purchases utilizing the certified invoice procedure shall be

effected only in accordance with FAR part 13 and this part 2813,

subject to the following:

(1) The amount of any one purchase does not exceed the micro-

purchase threshold;

(2) A purchase order is not required by either the supplier or the

Government;

(3) Appropriate invoices can be obtained from the supplier; and,

(4) The items to be purchased shall be domestic source end

products, except as provided in FAR subpart 25.1.

(b) Use of the certified invoice procedures does not eliminate the

requirements in FAR part 13 or this part 2813 that are applicable to

purchases of this dollar threshold.

shall delegate the authority to use the certified invoice procedure.

Each delegation must specify any limitations placed on the individual's

use of these procedures, such as limits on the amount of each purchase,

or limits on the commodities, or services which can be procured.

(d) Each individual using this purchasing technique shall require

the supplier to immediately submit properly prepared invoices which

itemized property or services furnished. Upon receiving the invoice,

the individual making the purchase shall annotate the invoice with the

date of receipt, verify the arithmetic accuracy of the invoiced amount

and verify on the invoice that the supplies and/or services have been

received and accepted. If the invoice is correct, the individual making

the purchase shall sign the invoice indicating acceptance and

immediately forward it to the appropriate administrative office. The

invoice shall be approved by the appropriate administrative office and

forwarded to the Finance Office for payment within 5 workdays after

receipt of the invoice, or acceptance of supplies or services,

whichever is later. Before forwarding the invoice to Finance, the

administrative office shall place the following statement on the

invoice, along with the accounting and appropriation data:

I certify that these goods and/or services were received on

________ (date) and accepted on ________ (date). Oral purchase was

authorized and no confirming order has been issued.

----------------------------------------------------------------------

Signature

----------------------------------------------------------------------

Date

----------------------------------------------------------------------

Printed or Typed Name and Title

PART 2814--SEALED BIDDING

Subpart 2814.4--Opening of bids and award of contract

2814.407 Mistakes in bids.

2814.407-3 Other mistakes disclosed before award.

2814.407-4 Mistakes after awards.

2814.409 Information to bidders.

2814.409-2 Award of classified contracts.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2814.4--Opening of bids and award of contract

2814.407 Mistakes in bids.

2814.407-3 Other mistakes disclosed before award.

(a) The authority to make determinations under paragraphs (a), (b),

(c), and (d) of FAR 14.407-3 is delegated to the HCA or designee at a

level not lower than the BPC.

(b) The following procedures shall be followed when submitting

doubtful cases of mistakes in bids to the Comptroller General for an

advance decision.

(1) Requests for advance decisions submitted to the Comptroller

General in cases of mistakes in bids shall be made by the HCA.

(2) Requests for advance decisions shall be in writing, dated,

signed by the requestor, addressed to the Comptroller General of the

United States, General Accounting Office, Washington, D.C. 20548, and

contain the following:

(i) The name and address of the party requesting the decision;

(ii) A statement of the question to be decided, a presentation of

all relevant facts, and a statement of the requesting party's position

with respect to the question; and,

(iii) Copies of all pertinent and supporting documentation.

2814.407-4 Mistakes after award.

Proposed determinations under FAR 14.407 shall be coordinated with

legal counsel in accordance with bureau procedures.

2814.409 Information to bidders.

2814.409-2 Award of classified contracts.

In accordance with FAR 14.409-2, the contracting officer shall

advise the unsuccessful bidders, including any who did not bid, to take

disposition action in accordance with bureau procedures.

PART 2815--CONTRACTING BY NEGOTIATION

Subpart 2815.4--Solicitation and Receipt of Proposals and Quotations

2815.405 Solicitations for information or planning purposes.

2815.405-1 General.

2815.408 Issuing solicitations.

2815.411 Receipt of proposals and quotations.

Subpart 2815.5--Unsolicited Proposals

2815.506 Agency procedures.

Subpart 2815.8--Price Negotiation

2815.803 General.

2815.805 Proposal analysis.

2815.805-5 Field pricing support.

2815.810 Should-cost review.

2815.810-2 Program should-cost review.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2815.4--Solicitation and Receipt of Proposals and

Quotations

2815.405 Solicitations for information or planning purposes.

2815.405-1 General.

When a solicitation for informational or planning purposes is to be

issued, the contracting officer shall make a written

[[Page 1410]]

determination that such solicitation is justified. This determination

shall be approved at a level above the contracting officer.

2815.408 Issuing solicitations.

Solicitations involving classified information shall be handled in

accordance with the policies and procedures contained in Departmental

regulations and other offices, boards, divisions, and bureaus (OBDB)

prescribed policies and regulations that supplement Departmental

regulations.

2815.411 Receipt of proposals and quotations.

Classified proposals and quotations shall be handled in accordance

with the current DOJ Order agency regulations and any supplemental

directives or orders implemented by the OBDB. Such supplemental

regulations must have the prior approval of the AAG/A before

implementation in accordance with the Departmental regulations.

Subpart 2815.5--Unsolicited Proposals

2815.506 Agency procedures.

(a) Each contracting activity shall designate a point of contact

for the receipt and handling of unsolicited proposals. Generally, the

official designated shall be the BPC or immediate subordinate.

(b) The designated point of contact for each contracting activity

shall provide for and coordinate receipt, review, evaluation, and final

disposition of unsolicited proposals in accordance with FAR 15.506

through 15.509.

Subpart 2815.8--Price Negotiation

2815.803 General.

If a contractor insists on a price or demands a profit or fee that

the contracting officer considers unreasonable and the contracting

officer has taken all authorized actions to negotiate a reasonable

price or profit or fee without success, the contracting officer shall

then refer the contract action to the HCA or designee.

2815.805 Proposal analysis.

2815.805-5 Field pricing support.

All requests for field pricing support shall be made by the

contracting officer directly to the cognizant audit agency. A copy of

the request for such services shall be sent to the Department of

Justice Office of the Inspector General (OIG) at the address shown in

this subsection at the time it is mailed to the cognizant audit agency.

A copy of each report received shall also be sent to the OIG. Requests

for other audit assistance may be made to the Assistant Inspector

General for Audits, Suite 5000, 1425 New York Avenue, N.W., Washington,

D.C. 20530.

2815.810 Should-cost review.

2815.810-2 Program should-cost review.

In acquisitions for which a program should-cost review is

conducted, the required should-cost review team report shall be

prepared in accordance with bureau procedures.

PART 2816--TYPES OF CONTRACTS

Subpart 2816.5--Indefinite-Delivery Contracts

2816.505 Ordering.

Subpart 2816.6--Time and Materials, Labor-Hour, and Letter Contracts

2816.601 Time-and-material contracts.

2816.602 Labor-hour contracts.

2816.603 Letter contracts.

2816.603-2 Application.

2816.603-3 Limitations.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2816.5--Indefinite-Delivery Contracts

2816.505 Ordering.

(a) In accordance with FAR 16.505(b)(4), the Department of Justice

Task Order and Delivery Order Ombudsman is the DOJ Competition

Advocate.

(b) Heads of contracting activities shall designate a contracting

activity Task Order and Delivery Order Ombudsman. This person may be

the contracting activity competition advocate and must meet the

qualification requirements of 2806.501(b).

complaints from contractors concerning task or delivery orders placed

by the contracting activity.

(d) Contractors not satisfied with the resolution of a complaint by

a contracting activity ombudsman may request the Departmental Ombudsman

to review the complaint.

Subpart 2816.6--Time-and-Materials, Labor-Hour, and Letter

Contracts

2816.601 Time-and-material contracts.

In addition to the limitations listed in FAR 16.601(c), a time-and-

materials contract may be used only after the contracting officer

receives written approval from the chief of the contracting office.

When the contracting officer is also the chief of the contracting

office, the approval to use a time-and-materials type contract will be

made at a level above the contracting officer.

2816.602 Labor-hour contracts.

The limitations set forth in 2816.601 for time-and-material

contracts also apply to labor-hour contracts.

2816.603 Letter contracts.

2816.603-2 Application.

In cases where the contracting officer and the contractor cannot

negotiate the definitization of a letter contract within 180 days after

the date of the letter contract, or before completion of 40 percent of

the work to be performed, the contracting officer may, with the written

approval of the PE, revise and extend the definitization schedule.

However, in no event shall the extension of the definitization schedule

extend beyond the lesser of an additional 180 day period or the

completion of 80 percent of the work to be performed. If at the end of

the extension, the contracting officer and the contractor cannot

negotiate a definitive contract because of failure to reach an

agreement on price or fee, the procedures set forth in FAR 52.216-25,

16.603-2, 15.8, and part 31 shall be followed, as applicable.

2816.603-3 Limitations.

A letter contract may be used only after the express written

approval of the Procurement Executive. Requests for approval shall

contain the rationale explaining why no other contract is suitable and

shall include the approval of the HCA or designee. Under circumstances

of compelling urgency which do not permit the time needed for written

approval, oral approval must be obtained; however, written

documentation to support the award and confirm the oral approval must

be submitted as soon as practicable after award.

PART 2817--SPECIAL CONTRACTING METHODS

Subpart 2817.1--Multiyear Contracting

2817.108 Congressional notification.

Subpart 2817.6--Management and Operating Contracts

2817.605 Award, renewal, and extension.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j); and

28 CFR 0.76(j).

Subpart 2817.1--Multiyear Contracting

2817.108 Congressional notification.

Pursuant to FAR 17.198(a), the original congressional notification

shall be submitted to PPRG, JMD, for concurrence, coordination to the

Attorney General, and subsequent transmission to the appropriate

congressional committees.

[[Page 1411]]

Subpart 2817.6--Management and Operating Contracts

2817.605 Award, renewal, and extension.

In accordance with FAR 17.605(b), the contracting officer,

following bureau procedures, shall review each management and operating

contract, at appropriate intervals and at least once every 5 years.

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 2819--SMALL BUSINESS PROGRAMS

Subpart 2819.2--Policies

2819.201 General policy.

Subpart 2819.5--Set-Asides for Small Business

2819.506 Withdrawing or modifying set-asides.

Subpart 2819.6--Certificates of Competency and Determinations of

Eligibility

2819.602 Procedures.

2819.602-1 Referral.

Subpart 2819.70--Forecasts of Expected Contract Opportunities

2819.7001 General.

2819.7002 Procedures.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2819.2--Policies

2819.201 General policy.

(a) The Office of Small and Disadvantaged Business Utilization

(OSDBU) is organizationally attached to the Office of the Deputy

Attorney General in accordance with 28 CFR 0.18a, but is located in JMD

for administrative purposes.

(b) The Director, OSDBU is responsible for the administration of

the DOJ small and disadvantaged business programs in accordance with

the duties described in 28 CFR 0.18a.

Subpart 2819.5--Set-Asides for Small Business

2819.506 Withdrawing or modifying set-asides.

(a) Before a contracting officer may withdraw or modify a small

business set-aside, the contracting officer shall seek the concurrence

of the Director, OSDBU.

(b) If the contracting officer and the Director, OSDBU, are unable

to agree on the proposed withdrawal or modification, the Director,

OSDBU shall:

(1) Forward the matter to the SBA procurement center representative

assigned to the Department of Justice for resolution; or,

(2) Forward the matter to the PE for resolution if an SBA

procurement center representative is not assigned to the Department of

Justice.

Subpart 2819.6--Certificates of Competency and Determinations of

Eligibility

2819.602 Procedures.

2819.602-1 Referral.

In accordance with FAR 19.602-1(a)(2), the matter shall be

submitted to the Director, OSDBU, for subsequent referral to the

cognizant SBA Regional Officer.

Subpart 2819.70--Forecasts of Expected Contract Opportunities

2819.7001 General.

Section 501 of Public Law 100-656, the Business Opportunity

Development Reform Act of 1988, requires executive agencies having

contract actions in excess of $50 million in Fiscal Year 1988 or later

to prepare an annual forecast of expected contract opportunities, or

classes of contract opportunities that small business concerns,

including those owned and controlled by socially and economically

disadvantaged individuals, are capable of performing.

2819.7002 Procedures.

The content and format of bureau annual forecasts of contract

opportunities, as well as the updates to their contracting forecasts

shall be as specified by the Director, OSDBU.

PART 2822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 2822.1--Basic Labor Policies

2822.101 Labor relations.

2822.101-1 General.

2822.101-3 Reporting labor disputes.

2822.103 Overtime.

2822.103-4 Approvals.

Subpart 2822.4--Labor Stardards for Contracts Involving Construction

2822.406 Administration and enforcement.

2822.406-8 Investigations.

Subpart 2822.13--Special Disabled and Vietnam Era Veterans

2822.1303 Waivers.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2822.1--Basic Labor Policies

2822.101 Labor relations.

2822.101-1 General.

All matters regarding labor relations shall be handled in

accordance with bureau procedures.

2822.101-3 Reporting labor disputes.

The office administering the contract shall report, directly to the

contracting officer, any potential or actual labor disputes that may

interfere with performing any contracts under its cognizance.

2822.103 Overtime.

2822.103-4 Approvals.

The inclusion of a dollar amount greater than zero in paragraph (a)

of the FAR clause 52.222-2, Payment For Overtime Premiums, must be

approved at a level above the contracting officer. Such approval shall

be reflected by the signature of the approving official on the

contracting officer's written determination made in accordance with FAR

22.103-4.

Subpart 2822.4--Labor Standards for Contracts Involving

Construction

2822.406 Administration and enforcement.

2822.406-8 Investigations.

Pursuant to FAR 22.406-8(d), the contracting officer shall prepare

and forward the report of violations to the HCA or designee at a level

not lower than the BPC. That official shall be responsible for

processing the report in accordance with FAR 22.406-8(d)(2).

Subpart 2822.13--Special Disabled and Vietnam Era Veterans

2822.1303 Waivers.

In accordance with FAR 22.1303, all requests for waivers shall be

forwarded from the HCA to PPRG, JMD, for processing to the Attorney

General.

PART 2823--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND

DRUG-FREE WORKPLACE

Subpart 2823.1--Pollution Control and Clean Air and Water

2823.107 Compliance responsibilities.

Subpart 2823.3--Hazardous Material Identification and Material Safety

Data

2823.303-70 Departmental contract clause.

Subpart 2823.4--Use of Recovered Materials

2823.403 Policy.

2823.404 Procedures.

2823.404-70 Affirmative Procurement Program for Recycled Materials.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2823.1--Pollution Control and Clean Air and Water

2823.107 Compliance responsibilities.

If a contracting officer becomes aware of noncompliance with clean

air, water

[[Page 1412]]

or other affected media standards in facilities used in performing

nonexempt contracts, that contracting officer shall notify the

Department of Justice Environmental Executive (DOJEE).

Subpart 2823.3--Hazardous Material Identification and Material

Safety Data

2823.303-70 Departmental contract clause.

The contracting officer shall insert the clause at 2852.223-70,

Unsafe Conditions Due to the Presence of Hazardous Material, in all

solicitations and contracts, as appropriate, if the contract will

require the performance of services on Government-owned or Government-

leased facilities.

Subpart 2823.4--Use of Recovered Materials

2823.403 Policy.

It is the policy of DOJ that its contracting activities and

contractors that procedure on behalf of DOJ, acquire EPA designated

items in accordance with EPA's Comprehensive Procurement Guideline For

Products Containing Recovered Materials (CPG) (40 CFR part 247). The

recommended minimum recovered materials content of EPA designated items

is set forth in EPA's Recovered Materials Advisory Notices (RMANs) and

in E.O. 12873 as amended. These publications are available from the

DOJEE.

2823.404 Procedures.

(a) The program office initiating the acquisition is responsible

for determining if recovered materials should be included in the

specification. Procurement offices are responsible for informing

program offices of the requirement for writing specifications for

designated items that include minimum content standards specified in

the RMANs.

(b) If the program office chooses to procure designated items

containing less than the minimum content standards, the program office

must justify that decision in writing and include a copy of the signed

justification with the procurement request package. FAR 23.404(b)(3)

sets forth the only accepted justifications for acquiring EPA

designated items which do not meet the minimum content standard. The

contracting officer is the approving official for justifications made

pursuant to FAR 23.404(b)(3). Contracting officers are responsible for

including a signed copy of the justification in the acquisition file

and submitting a copy of the approved justification to the DOJEE.

2823.404-70 Affirmative Procurement Program for Recycled Materials.

(a) Recovered materials preference program. Preference will be

given to procuring and using products containing recovered materials

rather than products made with virgin materials when adequate

competition exists, and when price, performance and availability are

equal.

(b) Promotion program. The DOJEE has primary responsibility for

actively promoting the acquisition of products containing recycled

materials throughout DOJ. Technical and procurement personnel will

cooperate with the DOJEE to actively promote DOJ's Affirmative

Procurement Program (APP).

certification. (1) Estimation. The contractor shall provide estimates

of the total percentage(s) of recovered materials for EPA designated

items to be used in products or services provided.

(2) Certification. Contracting officers shall provide copies of all

vendor and subcontractor certifications required by FAR 23.405(c) to

the DOJEE.

(3) Verification. The DOJEE is responsible for periodically

reviewing vendor certification documents and waivers as part of the

annual review and monitoring process to determine if DOJ is in

compliance with the E.O. 12873 and subsequent amendments.

PART 2824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Subpart 2824.2--Freedom of Information Act

2824.202 Policy.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2824.2--Freedom of Information Act

2824.202 Policy.

Procedures for processing Freedom of Information Act requests are

set forth in Departmental regulations and 28 CFR part 16.

PART 2825--FOREIGN ACQUISITION

Subpart 2825.2--Buy American Act--Construction Materials

2825.203 Evaluating offers.

Subpart 2825.3--Balance of Payments Program

2825.302 Policy.

Subpart 2825.9--Additional Foreign Acquisition Clauses

2825.901 Omission of audit clause.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2825.2--Buy American Act--Construction Materials

2825.203 Evaluating offers.

The HCA, or designee at a level not lower than the BPC, is the

agency official authorized to make the determination that using a

particular domestic construction material would unreasonably increase

the cost of the acquisition or would be impracticable.

Subpart 2825.3--Balance of Payments Program

2825.302 Policy.

The HCA, or designee at a level not lower than the BPC, is the

agency official authorized to make determinations under FAR

25.302(b)(3), as well as authorize the use of a differential greater

than 50 percent, as specified in FAR 25.302(c), for the evaluation of

domestic and foreign offers under the Balance of Payments Program. All

determinations made under this section shall be in writing and shall

set forth the facts and circumstances supporting the determination.

Determinations shall be reviewed and concurred in by the contracting

activity's legal counsel.

Subpart 2825.9--Additional Foreign Acquisition Clauses

2825.901 Omission of audit clause.

The HCA, or designee at a level not lower than the BPC, is the

agency official authorized to make determinations under FAR 25.901(c).

All determinations made under this authority shall be reviewed and

concurred in by the contracting activity's legal counsel prior to being

approved by the authorized agency official.

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 2828--BONDS AND INSURANCE

Subpart 2828.1--Bonds

2828.106 Administration.

2828.106-6 Furnishing information.

Subpart 2828.2--Sureties

2828.204 Alternatives in lieu of corporate or individual sureties.

Subpart 2828.3--Insurance

2828.307-1 Group insurance plans.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

[[Page 1413]]

Subpart 2828.1--Bonds

2828.106 Administration.

2828.106-6 Furnishing information.

In accordance with FAR 28.106-6(c), the HCA, or designee at a level

not lower than the BPC, is the agency official authorized to furnish

the certified copy of the bond and the contract.

Subpart 2828.2--Sureties

2828.204 Alternatives in lieu of corporate or individual sureties.

When contractors submit any of the types of security described in

FAR 28.204-1 through 28.204-3 in lieu of furnishing sureties, the

contracting officer shall enter into an agreement with the contractor

covering a bank account, and suitable covenants protecting the

Government's interest, in which the securities will be deposited to

protect against their loss during the period of the bond obligation.

Subpart 2828.3--Insurance

2828.307-1 Group insurance plans.

Under cost-reimbursement contracts, before buying insurance under a

group insurance plan, the contractor shall submit the plan to the

contracting officer for review and approval. During review, the

contracting office should utilize all sources of information available

such as audit, industry practices, etc., to determine that acceptance

of the group insurance plan, as submitted, is in the Government's best

interest.

PART 2829--TAXES

Subpart 2829.3--State and Local Taxes

2829.302 Applications of State and local taxes to the Government.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2829.3--State and Local Taxes

2829.302 Application of State and local taxes to the Government.

(a) It is DOJ policy that DOJ contracts shall not contain clauses

expressly designating prime contractors as agents of the Government for

the purpose of avoiding State and local taxes.

(b) Although circumstances may exist under which a contractor is an

agent of the Government, even in the absence of a contract clause

expressly designating a contractor as such, these circumstances should

be extremely rare. Before any DOJ contracting activity may contend that

any of its contractors are agents of the Government for the purpose of

claiming immunity from State and local sales and use taxes, the matter

will be referred to the AAG/A for review, and approval to ensure that

DOJ policy is complied with and that the contracting activity's

contention is fully in accordance with the pertinent legal principles

and precedents. Each case forwarded will be reviewed by the HCA before

referral to the AAG/A. The referral will include all pertinent data on

which the contracting activity's contention is based, together with a

thorough analysis of all relevant legal precedents.

by DOJ contracting activities to support the contention that a

contractor is an agent of the Government for the purpose of immunity

from a State or local sales or use tax, contracting activities should

whenever possible, devise alternative clauses, procedures, and

practices for future use which will accomplish their intended purpose

without providing the basis for contention that the contractor is an

agent of the Government for the purpose of immunity from State and

local sales or use taxes. Any referral to the AAG/A for approval under

this subpart shall include comments on the extent to which alternative

clauses, procedures, or practices may be utilized to accomplish the

intended purpose without providing the basis for the contention that

the contractor is an agent of the Government for the purpose of

immunity from State and local sales or use taxes.

PART 2830--COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 2830.2--CAS Program Requirements

2830.201-5 Waiver.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2830.2--CAS Program Requirements

2830.201-5 Waiver.

A request for a waiver of the Cost Accounting Standards

requirements shall be forwarded to the HCA after the contracting

officer has made the determination required by FAR 30.201-5.

PART 2831--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 2831.1--Applicability

2831.101 Objectives.

2831.109 Advance agreements.

Subpart 2831.2--Contracts With Commercial Organizations

2831.205 Selected costs.

2831.205-32 Precontract costs.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2831.1--Applicability

2831.101 Objectives.

(a) The PE is the official authorized to grant individual

deviations from the cost principles of FAR part 31. All requests for

individual deviations must cite the facts and circumstances surrounding

the request as well as attempts to negotiate contractor compliance.

(b) Requests for class deviation from the cost principles set forth

in FAR part 31 will be forwarded through the PE prior to submission to

the Civilian Agency Acquisition Counsel. Requests must contain the

information required in paragraph (a) of this section.

2831.109 Advance agreements.

(a) The DOJ and bureau contracting officers are encouraged to

negotiate advance agreements concerning the treatment of special or

unusual costs to avoid possible subsequent disputes or disallowance of

costs based upon unreasonableness or nonallowability. All such

agreements shall be negotiated in accordance with FAR 31.109 prior to

the contractor incurring such costs. Contracting officers are not

authorized to agree to a treatment of costs which would be inconsistent

with FAR part 31.

(b) Prior to negotiating an advance agreement, contracting officers

shall make a written determination setting forth the reasons and

rationale for entering into such agreements. In addition, the

determination will set forth the nature, the duration, and which

contract or contracts are covered by the proposed agreement. All

determinations required by this subpart will be reviewed and approved

at a level above the contracting officer prior to negotiation of the

proposed agreement. The approved determination will be placed in the

contract file.

the nature, duration, and contract or contracts covered by the

agreements. Advance agreements will be signed by both the contractor

and the contracting officer, and made a part of the contract file.

Copies of executed advance agreements will be distributed to the

cognizant audit office when applicable.

(d) All advance agreements will be incorporated in full in the

subsequent contract(s) to which they pertain, prior to award.

[[Page 1414]]

Subpart 2831.2--Contracts With Commercial Organizations

2831.205 Selected costs.

2831.205-32 Precontract costs.

(a) Precontract cost authorizations shall be used only on cost

reimbursement contracts, contain no provisions for payment of fees, and

be treated as advance agreements in accordance with the provisions of

FAR 31.109 and 2831.109.

(b) The following limitations apply to the execution of precontract

cost authorizations.

(1) Contracts which are estimated to be greater than the simplified

acquisition threshold may contain a precontract cost authorization

providing the authorization is for a period of 60 days or less and the

dollar amount does not exceed the lesser of the simplified acquisition

threshold or one-third of the total estimated costs (including fee if

any) of the contract.

(2) The limitation expressed under paragraph (b) of this section

may be increased in unusual circumstances as appropriate, with the

written approval of the HCA, but in no event shall they exceed one-

third of the total estimated costs (including fee if any) of the

contract or be for periods of time which exceed 90 days.

PART 2832--CONTRACT FINANCING

Subpart 2832.1--Non-Commercial Item Purchase Financing

2832.114 Unusual contract financing.

Subpart 2832.4--Advance Payments for Non-Commercial Items

2831.402 General.

2831.407 Interest.

Subpart 2832.9--Prompt Payment

2831.903 Policy.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2832.1--Non-Commercial Item Purchase Financing

2832.114 Unusual contract financing.

The HCA, or designee at a level not lower than the BPC, is the

official authorized to approve unusual contract financing as set forth

in FAR 31.114.

Subpart 2832.4--Advance Payments for Non-Commercial Items

2832.402 General.

(a) The authority to sign written determinations and findings with

respect to making advance payments is vested in the HCA.

(b) Prior to awarding a contract which contains provisions for

making advanced payments, the contract terms and conditions concerning

advance payments must be approved at a level above the contracting

officer, with advice and consent of the bureau's legal counsel.

is to provide contract financing for advance payments, the bureau's

disbursing or finance office, or the Treasury Department, as

appropriate, to ensure that all FAR and departmental requirements are

met.

2832.407 Interest.

In cases where advance payments may be made on an interest free

basis (FAR 32.407(d)), the intent to make such interest free advance

payments, and the circumstance permitting interest free advance

payments, shall be set forth in the original determination and findings

and be approved in accordance with 2832.402.

Subpart 2832.9--Prompt Payment

2832.903 Policy.

The HCA is responsible for promulgating policies and procedures to

implement FAR 32.9 and to ensure that, when specifying due dates, full

consideration will be given to the time reasonably required by

Government officials to fulfill their administrative responsibilities

under the contract.

PART 2833--PROTESTS, DISPUTES, AND APPEALS

Subpart 2833.1--Protests

2833.101 Definitions.

2833.102 General.

2833.103 Protests to the Agency.

Subpart 2833.2--Disputes and Appeals

2833.209 Suspected fraudulent claims.

2833.211 Contracting officer's decision.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2833.1--Protests

2833.101 Definitions.

(a) Agency Protest Official means the official, other than the

contracting officer, designated to review and decide procurement

protests filed with a contracting activity of the Department of

Justice.

(1) This person will be at a level above that of the Contracting

Officer, will be knowledgeable about the acquisition process in general

and will have no programmatic interest in the procurement.

(2) This official shall be an individual designated by the head of

the contracting activity and may be the Competition Advocate.

(b) Deciding Official means the person chosen by the protestor to

decide the agency protest; it may be either the Contracting Officer or

the Agency Protest Official.

direct economic interest would be affected by the award of a contract

or by the failure to award a contract.

22833.102 General.

(a) This part prescribes policies and procedures for processing

protests to the Department of Justice in accordance with Executive

Order 12979, Agency Procurement Protests, dated October 25, 1995 and

FAR 33.103. They are intended to be flexible and to provide for fair,

quick, and inexpensive resolution of agency protests.

(b) Interested parties have the option of protesting to the

Contracting Officer or to the Agency Protest Official.

use their best efforts to resolve concerns through frank and open

discussion, as required by FAR 33.103(b). In resolving concerns and/or

protests, consideration should be given to the use of alternative

dispute resolution techniques where appropriate.

(d) Responsibilities. (1) Contracting Officers:

(i) Include the provision at 2852.233-70 in all solicitations that

are expected to exceed the simplified acquisition threshold.

(ii) If the protestor requests that the Contracting Officer decide

the protest, or if the protest is silent on this issue, the Contracting

Officer decides the protest using the procedures in this subpart and

FAR 33.103.

(iii) If the protestor requests that the Agency Protest Official

decide the protest, the Contracting Officer must ensure that the Agency

Protest Official receives a copy of the materials served on the

Contracting Officer within one business day after the filing date.

(2) Agency Protest Official: If the protestor requests that the

Agency Protest Official decide the protest, the Official must use the

procedures in this subpart and FAR 33.103 to provide an independent

review of the issues raised in the protest.

2833.103 Protests to the Agency.

(a) The filing time frames in FAR 33.103(e) apply. An agency

protest is filed when the protest complaint is received at the location

the solicitation designates for serving protests.

(b) An interested party filing an agency protest has the choice of

requesting either that the contracting

[[Page 1415]]

Officer or the Agency Protest Official decide the protest.

the protest must:

(1) Indicate that it is a protest to the agency.

(2) Be filed with the Contracting Officer.

(3) State whether the protestor chooses to have the Contracting

Officer or the Agency Protest Official decide the protest. If the

protest is silent on this matter, the Contracting Officer will decide

the protest.

(4) Indicate whether the protestor prefers to make an oral or

written presentation of arguments in support of the protest to the

deciding official.

(d) The decision by the Agency Protest Official is an alternative

to a decision by the Contracting Officer on a protest. The Agency

Protest Official will not consider appeals from a Contracting Officer's

decision on an agency protest.

(e) The deciding official must conduct a scheduling conference with

the protestor within five (5) days after the protest is filed. The

scheduling conference will establish deadlines for oral or written

arguments in support of the agency protest and for agency officials to

present information in response to the protest issues. The deciding

official may hear oral arguments in support of the agency protest at

the same time as the scheduling conference, depending on availability

of the necessary parties.

(f) Oral conferences may take place either by telephone or in

person. Other parties may attend at the discretion of the deciding

official.

(g) The protestor has only one opportunity to support or explain

the substance of its protest. Department of Justice procedures do not

provide for any discovery. The deciding official has discretion to

request additional information from either the agency or the protestor.

However, the deciding official will normally decide protests on the

basis of information provided by the protestor and the agency.

(h) The preferred practice is to resolve protests through informal

oral discussion.

(i) An interested party may represent itself or be represented by

legal counsel. The Department of Justice will not reimburse the

protestor for any legal fees related to the agency protest.

(j) If an agency protest is received before contract award, the

Contracting Officer must not make award unless the Head of the

Contracting Activity makes a determination to proceed under FAR

33.103(f)(1). Similarly, if an agency protest is filed within ten (10)

days after award, the Contracting Officer must stay performance unless

the Head of the Contracting Activity makes a determination to proceed

under FAR 33.103(f)(3). Any stay of award or suspension of performance

remains in effect until the protest is decided, dismissed, or

withdrawn.

(k) The deciding official must make a best effort to issue a

decision on the protest within twenty (20) days after the filing date.

The decision may be oral or written. If oral, the deciding official

must send a confirming letter within three (3) days after the decision

using a means that provides receipt. The confirming letter must include

the following information:

(1) State whether the protest was denied, sustained or dismissed.

(2) Indicate the date the decision was provided.

(l) If the deciding official sustains the protest, relief may

consist of any of the following:

(1) Recommendation that the contract be terminated for convenience

or cause.

(2) Recompeting the requirement.

(3) Amending the solicitation.

(4) Refraining from exercising contract options.

(5) Awarding a contract consistent with statute, regulation, and

the terms of the solicitation.

(6) Other action that the deciding official determines is

appropriate.

(m) If the Agency Protest Official sustains a protest, then within

30 days after receiving the Official's recommendations for relief, the

Contracting Officer must either:

(1) Fully implement the recommended relief; or

(2) Notify the Agency Protest Official in writing if any

recommendations have not been implemented and explain why.

(n) Proceedings on an agency protest may be dismissed or stayed if

a protest on the same or similar basis is filed with a protest forum

outside of the Department of Justice.

Subpart 2833.2--Disputes and Appeals

2833.209 Suspected fraudulent claims.

Contracting officers shall report suspected fraudulent claims to

the Office of the Inspector General.

2833.211 Contracting officer's decision.

(a) The Agency Board of Contract Appeals (BCA), which will hear

appeals from the decisions of bureau contracting officers, is the

Department of Transportation BCA. The procedures set forth in 48 CFR

chapter 63 shall apply.

(b) Pursuant to 28 CFR 0.45(i), the contact for all appeals of

decisions of DOJ contracting officers which will be forwarded to the

BCA under paragraph (a) of this section, is the Deputy Assistant

Attorney General, Commercial Litigation Branch, Civil Division.

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

PART 2834--MAJOR SYSTEM ACQUISITION

Subpart 2834.0--General

2834.002 Policy.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2834.0--General

2834.002 Policy.

In accordance with Pub. L. 98-577, the Small Business and Federal

Procurement Competition Enhancement Act of 1984, an executive agency

may establish a dollar threshold for the designation of a major system.

Accordingly, dollar thresholds for a major system under Office of

Management and Budget Circular A-109 are designated in this section.

(a) Major Automated Information System. Within the Department of

Justice, a major automated information system is one whose life-cycle

cost is in excess of $100 million.

(b) Major Real Property System. (1) By purchase, when the assessed

value of the property exceeds $60 million.

(2) By lease, when the annual rental charges, including basic

services (e.g., cleaning, guards, maintenance), exceed $1.8 million.

(3) By transfer from another agency at no cost when the assessed

value of the property exceeds $12 million.

expected to exceed $0.5 million, for the R&D phase is subject to OMB

Circular A-109, unless exempted by the HCA.

(d) Any other system or activity. The HCA responsible for the

system may designate any system or activity as a Major System under OMB

Circular A-109 as a result of Departmental review, e.g., selected

systems designed to support more than one principal organizational

unit.

(e) Exemption. The AAG/A, upon recommendation by the HCA

responsible for the system, may determine that because of the routine

nature of the acquisition, the system (e.g., an information system

utilizing only off-the-shelf hardware or software) will be exempt from

the OMB Circular A-109 process, although by virtue of the life cycle

costs, it would otherwise be identified as ``major'' in response to OMB

Circular A-109.

[[Page 1416]]

SUBCHAPTER G--CONTRACT MANAGEMENT

PART 2842--CONTRACT ADMINISTRATION

Subpart 2842.15--Contractor Performance Information

2842.1502 Policy.

2842.1503 Procedures.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2842.15--Contractor Performance Information

2842.1502 Policy.

The head of each contracting activity shall be responsible for

establishing past performance evaluation procedures and systems as

required by FAR 42.1502 and 42.1503.

2842.1503 Procedures.

Past performance evaluation procedures and systems shall include,

to the greatest practical extent, the evaluation and performance rating

factors set forth in the Office of Federal Procurement Policy best

practices guide for past performance.

PART 2845--GOVERNMENT PROPERTY

Subpart 2845.1--General

2845.105 Records of Government property.

Subpart 2845.5--Management of Government Property in the Possession of

Contractors

2845.505-14 Reports of Government Property.

Subpart 2845.6--Reporting, Redistribution, and Disposal of Contractor

Inventory

2845.603 Disposal methods.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2845.1--General

2845.105 Records of Government property.

If departmental elements maintain the Government's official

property management records, the contract records may be kept as a

separate account in the bureau's internal property management system,

in which case the contracting officer or formally designated property

administrator shall serve as custodian of the account.

Subpart 2845.5--Management of Government Property in the Possession

of Contractors

2845.505-14 Report of Government Property.

(a) In compliance with FAR 45.505-14, by January 31 of each year,

DOJ contractors shall furnish the cognizant contracting officer an

annual report of the DOJ property for which they are accountable as of

the end of the calendar year.

(b) By March 1 of each year, bureaus shall submit a summary report

of Departmental property furnished under each contract, as of the end

of the calendar year, to the Facilities and Administrative Services

Staff, Justice Management Division. The report shall be categorized in

accordance with FAR 45.505 and shall include contracts for which the

bureau maintains the official government records.

Subpart 2845.6--Reporting, Redistribution, and Disposal of

Contractor Inventory

2845.603 Disposal methods.

Policies pertaining to reutilization and disposal of DOJ property,

including requirements for internal screening, waivers, and disposal

reporting, are prescribed in the Justice Property Management

Regulations Subpart 128-43. Unless otherwise specified, the ``plant

clearance officer'' shall be a designated utilization and disposal

representative of a bureau's property management office.

PART 2846--QUALITY ASSURANCE

Subpart 2846.6--Material Inspection and Receiving Reports

Subpart 2846.7--Warranties

2845.704 Authority for use of warranties.

Authority: 28 U.S.C. 510; 40 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2846.6--Material Inspection and Receiving Reports

Bureaus shall prescribe procedures and instructions for the use,

preparation, and distribution of material inspection and receiving

reports and commercial shipping document/packing lists to evidence

Government inspection.

Subpart 2846.7--Warranties

2846.704 Authority for use of warranties.

The use of a warranty in an acquisition shall be approved at a

level above the contracting officer.

Subchapter H--Clauses and Forms

PART 2852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 2852.1--Instructions for Using Provisions and Clauses

2852.102 Incorporating provisions and clauses.

2852.102-270 Incorporation in full text.

Subpart 2852.2--Text of Provisions and Clauses

2852.201-70 Contracting Officer's Technical Representative (COTR).

2852.211-70 Brand-name or Equal.

2852.223-70 Unsafe Conditions Due to the Presence of Hazardous

Material.

2852.233-70 Protests Filed Directly with the Department of Justice.

Authority: 28 U.S.C. 510; 49 U.S.C. 486(c); 28 CFR 0.75(j) and

28 CFR 0.76(j).

Subpart 2852.1--Instructions for Using Provisions and Clauses

2852.102 Incorporating provisions and clauses.

2852.102-270 Incorporation in full text.

JAR provisions or clauses shall be incorporated in solicitations

and contracts in full text.

Subpart 2852.2--Text of Provisions and Clauses

2852.201-70 Contracting Officer's Technical Representative (COTR).

As prescribed in subpart 2801.70, insert the following clauses:

Contracting Officer's Technical Representative (COTR) (JAN 1985)

(a) Mr./Ms. (Name) of (Organization) (Room No.), (Building),

(Address), (Area Code & Telephone No.), is hereby designated to act

as Contracting Officer's Technical Representative (COTR) under this

contract.

(b) The COTR is responsible, as applicable, for: receiving all

deliverables, inspecting and accepting the supplies or services

provided hereunder in accordance with the terms and conditions of

this contract; providing direction to the contractor which clarifies

the contract effort, fills in details or otherwise serves to

accomplish the contractual Scope of Work; evaluating performance;

and certifying all invoices/vouchers for acceptance of the supplies

or services furnished for payment.

contractor's obligations under the contract, and/or modify any of

the expressed terms, conditions, specifications, or cost of the

agreement. If as a result of technical discussions it is desirable

to alter/change contractual obligations or the Scope of Work, the

Contracting Officer shall issue such changes.

(End of Clause)

2852.211-70 Brand-name or Equal.

As prescribed in 2811.104-70, insert the following clause:

BRAND-NAME OR EQUAL (JAN 1985)

(a) The terms ``bid'' and ``bidder'', as used in this clause,

include the terms ``proposal'' and ``offerors''. The terms

``invitation for bids'' and ``invitation'', as used in this clause

include the terms ``request for proposal'' and ``request''.

(b) If items called for by this invitation for bids have been

identified in the schedule by a ``brand name or equal'' description,

such identification is intended to be descriptive

[[Page 1417]]

but not restrictive, and is to indicate the quality and

characteristics of products that will be satisfactory. Bids offering

``equal'' products (including products of a brand name manufacturer

other than the one described by brand name) will be considered for

award if such products are clearly identified in the bids and are

determined by the Government to meet fully the salient

characteristics and requirements listed in the invitation.

she is offering an ``equal'' product, his/her bid shall be

considered as offering the brand name product referenced in the

invitation for bids.

(d)(1) If the bidder proposes to furnish an ``equal'' products,

brand name, if any, of the product to be furnished shall be inserted

in the space provided in the invitation for bids, or such product

shall be otherwise clearly identified in the bid. The evaluation of

bids and the determinations to equality of the product offered shall

be the responsibility of the Government and will be based on

information furnished by the bidder or identified in his/her bid as

well as other information reasonably available to the purchasing

activity. To ensure that sufficient information is available, the

bidder must furnish as a part of his/her bid all descriptive

material (such as cuts, illustrations, drawings, or other

information) necessary for the purchasing activity to: (i) determine

whether the product offered meets the salient characteristics

requirements of the invitation for bids, and (ii) establish exactly

what the bidder proposed to furnish and what the Government would be

binding itself to purchase by making an award. The information

furnished may include specific references to information previously

furnished or information otherwise available to the purchasing

activity.

(2) If the bidder proposes to modify a product so as to make it

conform to the requirements of the invitation for bids, he/she

shall: (i) include in his/her bid a clear description of such

proposed modifications, and (ii) clearly mark any descriptive

material to show the proposed modifications.

(3) Modifications proposed after the bid opening to make a

product conform to a brand name product referenced in the invitation

for bids will not be considered.

(End of Clause)

2852.223-70 Unsafe Conditions Due to the Presence of Hazardous

Material

As prescribed in 2823.303-70, insert the following clause:

UNSAFE CONDITIONS DUE TO THE PRESENCE OF HAZARDOUS MATERIAL (JUNE 1996)

(a) ``Unsafe condition'' as used in this clause means the actual

or potential exposure of contractor or Government employees to a

hazardous material as defined in Federal Standard No. 313, and any

revisions thereto during the term of this contract, or any other

material or working condition designated by the Contracting

Officer's Technical Representative (COTR) as potentially hazardous

and requiring safety controls.

(b) The Occupational Safety and Health Administration (OSHA) is

responsible for issuing and administering regulations that require

contractors to apprise its employees of all hazards to which they

may be exposed in the course of their employment; proper conditions

and precautions for safe use and exposure; and related symptoms and

emergency treatment in the event of exposure.

inspect for and report to the contracting officer or designee the

presence of, or suspected presence of, any unsafe condition

including asbestos or other hazardous materials or working

conditions in areas in which they will be working.

(d) If during the performance of the work under this contract,

the contractor or any of its employees, or subcontractor employees,

discovers the existence of an unsafe condition, the contractor shall

immediately notify the contracting officer, or designee (with

written notice provided not later than three (3) working days

thereafter), of the existence of an unsafe condition. Such notice

shall include the contractor's recommendations for the protection

and the safety of Government, contractor and subcontractor personnel

and property that may be exposed to the unsafe condition.

(e) When the Government receives notice of an unsafe condition

from the contractor, the parties will agree on a course of action to

mitigate the effects of that condition and, if necessary, the

contract will be amended. Failure to agree on a course of action

will constitute a dispute under the Disputes clause of this

contract.

(f) Nothing contained in this clause shall relieve the

contractor or subcontractors from complying with applicable Federal,

State, and local laws, codes, ordinances and regulations (including

the obtaining of licenses and permits) in connection with hazardous

material including but not limited to the use, disturbance, or

disposal of such material.

(End of Clause)

2852.233-70 Protests Filed Directly With the Department of Justice.

As prescribed in 2833.102(d), insert a clause substantially as

follows:

PROTESTS FILED DIRECTLY WITH THE DEPARTMENT OF JUSTICE (JAN 1998)

(a) The following definitions apply in this provision:

(1) ``Agency Protest Official'' means the official, other than

the contracting officer, designated to review and decide procurement

protests filed with a contracting activity of the Department of

Justice.

(2) ``Deciding Official'' means the person chosen by the

protestor to decide the agency protest; it may be either the

Contracting Officer or the Agency Protest Official.

(3) ``Interested Party'' means an actual or prospective offeror

whose direct economic interest would be affected by the award of a

contract or by the failure to award a contract.

(b) A protest filed directly with the Department of Justice

must:

(1) Indicate that it is a protest to the agency.

(2) Be filed with the Contracting Officer.

(3) State whether the protestor chooses to have the Contracting

Officer or the Agency Protest Official decide the protest. If the

protest is silent on this matter, the Contracting Officer will

decide the protest.

(4) Indicate whether the protestor prefers to make an oral or

written presentation of arguments in support of the protest to the

deciding official.

(5) Include the information required by FAR 33.103(d)(2):

(i) Name, address, fax number and telephone number of the

protestor.

(ii) Solicitation or contract number.

(iii) Detailed statement of the legal and factual grounds for

the protest, to include a description of resulting prejudice to the

protestor.

(iv) Copies of relevant documents.

(v) Request for a ruling by the agency.

(vi) Statement as to the form of relief requested.

(vii) All information establishing that the protestor is an

interested party for the purpose of filing a protest.

(viii) All information establishing the timeliness of the

protest.

Justice has the choice of requesting either that the Contracting

Officer of the Agency Protest Official decide the protest.

(d) The decision by the Agency Protest Official is an

alternative to a decision by the Contracting Officer. The Agency

Protest Official will not consider appeals from the Contracting

Officer's decision on an agency protest.

(e) The deciding official must conduct a scheduling conference

with the protestor within five (5) days after the protest is filed.

The scheduling conference will establish deadlines for oral or

written arguments in support of the agency protest and for agency

officials to present information in response to the protest issues.

The deciding official may hear oral arguments in support of the

agency protest at the same time as the scheduling conference,

depending on availability of the necessary parties.

(f) Oral conferences may take place either by telephone or in

person. Other parties may attend at the discretion of the deciding

official.

(g) The protestor has only one opportunity to support or explain

the substance of its protest. Department of Justice procedures do

not provide for any discovery. The deciding official may request

additional information from either the agency or the protestor. The

deciding official will resolve the protest through informal

presentations or meetings to the maximum extent practicable.

(h) An interested party may represent itself or be represented

by legal counsel. The Department of Justice will not reimburse the

protester for any legal fees related to the agency protest.

(i) The Department of Justice will stay award or suspend

contract performance in accordance with FAR 33.103(f). The stay or

suspension, unless over-ridden, remains in effect until the protest

is decided, dismissed, or withdrawn.

(j) The deciding official will make a best effort to issue a

decision on the protest within twenty (20) days after the filing

date. The decision may be oral or written.

[[Page 1418]]

(k) The Department of Justice may dismiss or stay proceeding on

an agency protest if a protest on the same or similar basis is filed

with a protest forum outside the Department of Justice.

(End of Clause)

[FR Doc. 98-380 Filed 1-8-98; 8:45 am]

BILLING CODE 4410-01-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.