Commerce Acquisition Regulation (CAR): Plain Language Rewrite; Proposed Rule

DEPARTMENT OF COMMERCE

48 CFR Chapter 13

[Document Number: 080730954-8955-01]

RIN 0605-AA26

Commerce Acquisition Regulation (CAR): Plain Language Rewrite; Proposed Rule

AGENCY:

Department of Commerce.

ACTION:

Proposed rule.

SUMMARY:

The Commerce Acquisition Regulation (CAR) was originally codified March 30, 1984, and amended by subsequent regulations published in the

Federal Register

. The Department of Commerce (DOC) proposes to update the entire CAR through FAC-2005-21. This proposed rule will bring the CAR in alignment with the FAR through FAC 2005-21 and streamline DOC internal policy and guidance.

DATES:

Comments on the proposed rule should be submitted on or before December 14, 2009 to be considered in the formulation of the final rule.

ADDRESSES:

Comments may be submitted through any of the following:

•

Federal Rulemaking Portal: http://www.Regulations.gov

. Please follow the instructions for submitting a comment.

•

Mail:

Virna Evans, U.S. Department of Commerce, Room 1854, 1401 Constitution Avenue, NW., Washington, DC 20230.

All comments should indicate that they are submitted in response to RIN 0605-AA26.

FOR FURTHER INFORMATION CONTACT:

Virna Evans, 202-482-3483.

SUPPLEMENTARY INFORMATION:

Drafting Information

The Department of Commerce used the FAR version dated November 7, 2007, updated through FAC 2005-21 and located on the

http://farsite.hill.af.mil/

Web site as the reference FAR during development.

Background

The CAR is the Department of Commerce acquisition regulation that implements or supplements the FAR.. The CAR was originally codified March 30, 1984 and last updated by

Federal Register

Notice on September 12, 1995. The update will bring the CAR in alignment with the FAR through FAC 2005-21 and streamline Department of Commerce policies and procedures.

The following is a discussion of common changes made throughout the CAR. Various sections of the CAR have been renumbered and/or renamed to align with the FAR. Significant information has been added to address those instances where the FAR indicates that agency procedures are required or instructs the agency to act in accordance with agency procedures. Many references to chapters of the Department's internal guidance document called Commerce Acquisition Manual, or CAM, have been added to provide a relationship between the FAR, the CAR, and DOC internal guidance. Information was also added to clarify roles and responsibilities across the agency and within the Department of Commerce's 5 Operating Units authorized to operate contracting offices (National Institute of Standards and Technology (NIST), National Oceanic and Atmospheric Administration (NOAA), Office of the Secretary, U.S. Census Bureau, and Patent and Trademark Office (PTO)), usually in the form of a reference to the CAM outlining delegations of authority. In addition, numerous new clauses have been added that correspond to new requirements added to the CAR. Finally, the authority citations for the CAR have been revised to correspond to current authority. A summary of the changes by CAR Part follows.

Part 1301: Department of Commerce Acquisition Regulations System

We propose to renumber various sections of Part 1301 to align with the FAR. We propose to add sections 1301.3 and 1301.4 to clarify the location and format of agency policy and guidance, the role of bureaus in issuing directives, and the designees authorized to approve deviations. We propose to expand section 1301.6 to highlight significant agency policy and guidance related to contracting authority; ratification practices; and selection, appointment, and termination of appointment of Contracting Officers. The first references are made to internal guidance documents CAM 1301.70 and CAM 1301.6. We propose to add the following clauses:

1352.201-70 Contracting Officer's Authority

1352.201-71 Ratification Release

1352.201-72 Contracting Officer's Representative (COR)

Part 1302: Definitions of Words and Terms

We propose to add Part 1302 in order to clarify significant and/or frequently used terms and acronyms within the agency and foster common understanding and proper usage across the agency.

Part 1303: Improper Business Practices and Personal Conflicts of Interest

We propose to renumber and rename various sections of Part 1303 to align with the FAR. We propose to add multiple new sections to the Part in order to clarify roles and responsibilities, agency process, and legal requirements.

Part 1304: Administrative Matters

We propose to add Part 1304 in order to describe procedures related to accountable personal property and to provide a reference to CAM chapters describing Federal Procurement Data System reporting procedures and contract closeout, storage, handling, and disposal procedures.

Part 1305: Publicizing Contract Actions

We propose to add Part 1305 in order to clarify various roles and responsibilities related to publicizing contract actions.

Part 1306: Competition Requirements

We propose to add Part 1306 in order to clarify various roles and responsibilities related to competition, and to highlight internal processes and legal requirements involving sole source acquisitions.

Part 1307: Acquisition Planning

We propose to add Part 1307 in order to clarify agency head responsibilities in relation to FAR 7.103, describe agency policy related to inherently governmental functions, and to provide a reference to internal Web sites and/or CAM chapters covering acquisition planning and competitive sourcing policy and procedures.

Part 1308: Required Sources of Supplies and Services

We propose to add Part 1308 in order to clarify the designee authorized as the Department's central printing authority. We propose to add the following clause related to the new provision:

1352.208-70 Restrictions on Printing and Duplicating

Part 1309: Contractor Qualifications

We propose to redesignate current section 1309.106-70

Preaward surveys for ship construction, ship alteration, and ship repair

to Part 1371 of the CAR, which addresses specialty procurements. We propose to add multiple references to CAM 1301.70 that define responsibilities and delegations of authority related to qualification requirements, debarment, suspension and ineligibility, and organizational and consultant conflicts of interest. We propose to remove 1309.470-4,

Procedures on Debarment

and 1309.470-7,

Procedures on Suspension

, and update this information in redesignated Sections 1309.406,

Debarment,

and 1309.407,

Suspension

. We propose to add Subpart 1309.5, Organizational and Consultant Conflicts of Interest to address waivers, procedures and the process for addressing organizational conflicts of interest (OCI). We also propose to add the following provisions and clauses:

1352.209-70 Potential Organizational Conflict of Interest

1352.209-71 Limitation of Future Contracting

1352.209-72 Restrictions Against Disclosure

1352.209-73 Compliance with the Laws

1352.209-74 Organizational Conflict of Interest

1352.209-75 Title 13 and Non-Disclosure Requirements

Part 1311: Describing Agency Needs

We propose to add Part 1311 in order to clarify roles and responsibilities related to market acceptance and liquidated damages.

Part 1312: Acquisition of Commercial Items

We propose to add Part 1312 in order to define the individual with the authority to approve requests to tailor provisions, clauses or terms and conditions that are inconsistent with customary commercial practice.

Part 1313: Simplified Acquisition Procedures

We propose to update Part 1313 to align the CAR with the FAR and current agency practices. Such updates include updating the title of the part; adding references to the CAM chapters that define the authority for delegating micro-purchase authority and the training required by DOC employees prior to being delegated micro-purchase authority; adding references to the CAM chapter covering departmental procedures for the use and control of the Governmentwide commercial purchase card; and outlining agency policy related to contractor acceptance of purchase order modifications, purchases under BPAs, third-party drafts, and imprest funds.

The following clauses were added to this part:

1352.213-70 Evaluation Utilizing Simplified Acquisition Procedures

1352.213-71 Instructions for Submitting Quotations Under the Simplified Acquisition Threshold—Non- Commercial

Part 1314: Sealed Bidding

We propose to add Part 1314 to define roles and responsibilities and legal requirements for rejection of bids, mistakes in bids, and information to bidders.

Part 1315: Contracting by Negotiation

We propose to revise Part 1315 to align with the FAR and current agency practices. Revisions include defining roles and responsibilities related to granting exceptions from the uniform contract format, waiving examination of records requirement, define responsibilities, permissions, and other requirements related to source selection; redesignating section 1315.5, originally amended Sept. 12, 1995, as subpart 1315.6 Unsolicited Proposals to describe procedures for unsolicited proposals, and deleting subpart 1315.504 Advance Guidance.

We also propose to add the following provisions and clauses:

1352.215-70 Proposal Preparation

1352.215-71 Instructions for Oral Presentations

1352.215-72 Inquiries

1352.215-73 Evaluation Quantities—Indefinite Quantity Contract

1352.215-74 Best Value Evaluation

1352.215-75 Evaluation Criteria

1352.215-76 Cost or Pricing Data

Part 1316: Types of Contracts

We propose to revise Part 1316 by redesignating section 1316.404-2 as 1316.405-2 and adding associated clause 1352.216-72 Determination of Award Fee; define roles and responsibilities for use of economic price adjustment clause, use of fixed-ceiling-price contracts with retroactive price redetermination, designation of task order ombudsman, approval of time-and-materials contracts, and approval of letter contracts; and addressing FAR requirements of agencies related to contract type.

We also propose to add the following provisions and clauses:

1352.216-70 Estimated and Allowable Costs

1352.216-71 Level of Effort (Cost-Plus-Fixed Fee, Term Contract)

1352.216-72 Determination of Award Fee

1352.216-73 Distribution of Award Fee

1352.216-74 Task Orders

1352.216-75 Minimum and Maximum Contract Amounts

1352.216-76 Placement of Orders

1352.216-77 Ceiling Price

Part 1317: Special Contracting Methods

We propose to revise Part 1317 to include references to CAM 1301.70 that define responsibilities and delegations of authority. We propose housing all specialty procurements in new Part 1370,

Universal Solicitation Provisions and Contract Clauses

. Subpart 1317.70,

Contracts for Ship Construction, Ship Alteration, and Ship Repair

has been redesignated as Part 1371,

Acquisitions Involving Ship Construction and Ship Repair

.

Part 1318: Emergency Acquisitions

We propose to add Part 1318 in order to clarify agency procedures and expectations related to emergency acquisitions. We propose to add references to CAM 1301.70 that define responsibilities and delegations of authority.

Part 1319: Small Business Programs

We propose to update Part 1319 to align with the FAR and current agency practices. Such updates include clarifying agency policy, procedures and expectations related to setting aside acquisitions for small businesses; providing the procedure for determining lack of competency; providing the procedure for reviewing subcontracting plans; and providing the procedure for contracting with the Small Business Administration 8(a) Program.

We also propose to add the following and clauses:

1352.219-70 Section 8(a) Direct Award (Deviation)

1352.219-71 Notification To Delay Performance (Deviation)

1352.219-72 Notification of Competition Limited to Eligible 8(a) Concerns, Alternative III (Deviation)

Part 1322: Application of Labor Laws to Government Acquisitions

We propose to add Part 1322 in order to define roles and responsibilities and approval chains for notification of potential labor disputes, approval of requests for overtime, determination of liquidated damages, modifications of wage determinations, processing labor standards investigations, and requesting exemptions or waivers of labor standards. We also set forth the proposing instructions detailing when and from whom contracting officers should seek legal advice and assistance for potential or actual labor disputes, and removal of items affected by work stoppage.

Part 1323: Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace

We propose to add Part 1323 in order to clarify roles and responsibilities, and to reference the CAM chapters that describe the agency's affirmative procurement program and the procedures for granting exceptions to

procurement of an Energy Star or Federal Energy Management Program designated product or exceptions to Electronic Product Environmental Assessment Tool requirements indicated under FAR Part 23.705(c).

Part 1324: Protection of Privacy and Freedom of Information

We propose to add Part 1324 in order to provide a cross-reference to the CFR title describing the agency's implementation of the Freedom of Information Act.

Part 1325: Foreign Acquisition

We propose to add Part 1325 in order to define roles and responsibilities for various actions and to define procedures related to exceptions to the Buy American Act for supplies.

Part 1326: Other Socioeconomic Programs

We propose to add Part 1326 in order to define the designee authorized to determine that transitioning response, relief, and/or reconstruction activity to local firms is not feasible or practicable.

Part 1327: Patents, Data, and Copyrights

We propose to add Part 1327 in order to define roles and responsibilities for various actions and to permit contracting officers to place limitations or restrictions on the contractor's exercise of its rights in data first produced in the performance of a contract. We also propose to add the following clause:

1352.227-70 Rights in Data, Assignment of Copyright

Part 1328: Bonds and Insurance

We propose to add Part 1328 in order to define multiple roles and responsibilities related to various actions and to define the legal entity from which to obtain opinion when determining acceptability of individual surety. We also propose to add the following provisions and clauses:

1352.228-70 Insurance Coverage

1352.228-71 Deductibles Under Required Insurance Coverage—Cost Reimbursement

1352.228-72 Deductibles Under Required Insurance Coverage—Fixed Price

1352.228-73 Loss of or Damage to Leased Aircraft

1352.228-74 Fair Market Value of Aircraft

1352.228-75 Risk and Indemnities

1352.228-76 Approval of Group Insurance Plans

Part 1329: Taxes

We propose to add Part 1329 in order to define the process for DOC and its contractors for purchases of spirits tax-free for non-beverage Government use. We also propose to define the group to whom contracting officers should refer legal questions relating to tax issues. We also propose to identify responsibility for review of proposed designation of a contractor as an agent of the Government.

Part 1330: Cost Accounting Standards Administration

We propose to add Part 1330 in order to clarify roles and responsibilities related to Cost Accounting Standards program requirements.

Part 1331: Contract Cost Principles and Procedures

We propose to add Part 1331 in order to clarify roles and responsibilities for approval of individual deviations concerning cost principles, and waiver of cost allowability limitations. We also propose adding the following clauses:

1352.231-70 Precontract Costs

1352.231-71 Duplication of Effort

Part 1332: Contract Financing

We propose to revise Part 1332 to clarify roles and responsibilities across multiple actions. We propose to permit, under 1332.003, contract financing for purchases made under the authority of FAR Part 13. Under 1332.702, we propose to clarify the contract funding process and the individual who represents the responsible fiscal authority. We also propose to reference the various agency policies and procedures that need to be followed when using the Governmentwide commercial purchase card.

Part 1333: Protests, Disputes, and Appeals

We propose to revise all of Part 1333 to make the Part current to agency policy and procedures. Revisions include defining roles and responsibilities for protest decisions and determinations related to disputes and appeals, and defining legal review and handoff procedures. We also propose to add the following clauses:

1352.233-70 Agency Protests

1352.233-71 GAO and Court of Federal Claims Protests

Part 1334: Major System Acquisition

We propose to add Part 1334 in order to identify the designated authority and procedures for acquiring major systems. We propose to clarify policy and dollar thresholds regarding the FAR regulation requiring Earned Value Management Systems.

Part 1335: Research and Development Contracting

We propose to add Part 1335 in order to define terms for research and development contracting and identify procedures. We also propose to add the following provisions and clauses:

1352.235-70 Protection of Human Subjects

1352.235-71 Protection of Human Subjects—Exemption

1352.235-72 Protection of Human Subjects—Institutional Approval

1352.235-73 Research Involving Human Subjects—After Initial Contract Award

Part 1336: Construction and Architect-Engineer Contracts

We propose to define the acceptable composition of permanent and ad hoc architect-engineer evaluation boards, the appropriate means for selecting firms for contracts not expected to exceed the simplified acquisition threshold, and the appropriate means for designating the selection authority.

We propose to define the designee authorized to make the determination described at FAR 36.609-1(c).

Part 1337: Service Contracting

We propose to refer to the CAM chapter outlining agency procedures for personnel security processing for contractors performing services on or within a Department of Commerce facility or through and information technology (IT) system. We propose to refer to the CAM chapter that indicates the designee authorized to make the determinations described under FAR 37.204.

We propose to add the following clauses:

1352.237-70 Security Processing Requirements—High or Moderate Risk Contracts

1352.237-71 Security Processing Requirements—Low Risk Contracts

1352.237-72 Security Processing Requirements—National Security Contracts

1352.237-73 Foreign National Visitor and Guest Access to Departmental Resources

1352.237-74 Progress Reports

1352.237-75 Key Personnel

Part 1339: Acquisition of Information Technology

We propose to describe agency procedures and provision/clause options for processing contractors that are competing for and winning information technology service acquisitions over the micro-purchase threshold, and/or will require electronic access to Department of Commerce information technology systems. We also propose to add the following provisions and clauses:

1352.239-70 Software License Addendum

1352.239-71 Electronic and Information Technology

1352.239-72 Security Requirements for Information Technology Resources.

Part 1341: Acquisition of Utility Services

We propose to add Part 1341 to clarify the roles and responsibilities for entering into contracts with utility providers and making determinations related to contracts and agreements of utility services.

Part 1342: Contract Administration

We propose to revise Part 1342 to define roles and responsibilities related to contract administration and certification of indirect cost rates. We propose to add the following provision:

1352.242-70 Postaward Conference

Part 1344: Subcontracting Policies and Procedures

We propose to add Part 1334 to identify the designee authorized to lower or raise the $25 million sales threshold for performing a review to determine if a Contractors Purchasing Systems Review is needed.

Part 1345: Government Property

We propose to add Part 1345 in order to address when government property is to be furnished to the contractor. We propose to add the following clause:

1352.245-70 Government Furnished Property

Part 1346: Quality Assurance

We propose requiring DOC operating units to develop instructions and procedures related to material inspection and receiving reports. We also propose to authorize contracting officers to approve the use of warranties. We propose adding the following clause:

1352.246-70 Place of Acceptance

Part 1348: Value Engineering

We propose to add Part 1348 in order to clarify the policy for processing Value Engineering Change Proposals (VECPs). We also propose to define the roles and responsibilities related to VECP processing and to granting exemptions from the requirements of FAR Part 48 for a contract or class of contracts.

Part 1349: Termination of Contracts

We propose to revise Part 1349 to reflect current agency procedures for dealing with default terminations and terminations involving fraud or other criminal conduct.

Part 1350: Extraordinary Contractual Actions

We propose to add Part 50 in order to define roles and responsibilities for various actions.

Part 1352: Solicitation Provisions and Clauses

We propose to revise Part 1352 in order to reflect currently approved provisions and clauses. The clauses we propose to add for each CAR Part are identified in the discussion of each CAR Part summary. An agency-specific matrix, similar in format and intent to the FAR Part 52 matrix (

See

CAR Part 1352.3), is added to assist users identify the location of the provision and clause for each prescription in the CAR. The changes made to existing CAR provisions and clauses are summarized in the table below.

Existing CAR provision or clause number and title

Action taken

1352.217-90, Inspection and Manner of Doing Work

Revised and moved to CAR Part 1371.

1352.217-91, Delivery of Vessel to the Contractor

Revised, renamed

Delivery and Shifting of the Vessel,

and moved to CAR Part 1371.

1352.217-92, Performance

Revised and moved to CAR Part 1371.

1352.217-93, Delays

Revised and moved to CAR Part 1371.

1352.217-94, Minimization of Delay Due to Government Furnished Property

Revised and moved to CAR Part 1371.

1352.217-95, Additional Provisions Relating to Government Property

Removed.

1352.217-96, Liability and Insurance

Revised and moved to CAR Part 1371.

1352.217-97, Title

Revised and moved to CAR Part 1371.

1352.217-98, Discharge of Liens

Revised and moved to CAR Part 1371.

1352.217-99, Department of Labor Occupational Safety and Health Standards for Ship Repairing

Revised and moved to CAR Part 1371.

1352.217-100, Regulations Governing Asbestos Work

Removed.

1352.217-101, Complete and Final Equitable Adjustments

Removed.

1352.217-102, Government Review, Comment, Acceptance, and Approval

Revised and moved to CAR Part 1371.

1352.217-103, Access to the Vessel(s)

Revised and moved to CAR Part 1371.

1352.217-104, Documentation of Requests for Equitable Adjustment

Revised and moved to CAR Part 1371.

1352.217-105, Change Proposals

Removed.

1352.217-106, Lay Days

Revised and moved to CAR Part 1371.

1352.217-107, Changes—Ship Repair

Revised and moved to CAR Part 1371.

1352.217-108, Default—Ship Repair

Removed.

1352.217-109, Insurance Requirements

Revised and moved to CAR Part 1371.

1352.217-110, Guarantees

Revised and moved to CAR Part 1371.

1352.217-111, Temporary Services

Revised and moved to CAR Part 1371.

1352.217-112, Self-Insurance Information

Removed.

1352.233.2, Service of Protest

Revised and renumbered 1352.233-70.

Part 1353: Forms

We propose to revise Part 1353 in order to align the part with current agency procedures and acquisition-related forms.

Part 1370: Universal Solicitation Provisions and Contract Clauses

We propose to add Part 1370 in order to group the provisions and contract clauses that have prescriptions applicable to more than one FAR Part. We propose to insert the following provisions and clauses:

1352.270-70 Period of Performance

1352.270-71 Pre-Bid/Pre-Proposal Conference and Site Visit

Part 1371: Acquisitions Involving Ship Construction and Ship Repair

We propose to add Part 1371 in order to group the unique provisions and contract clauses that pertain to ship

construction and ship repair. We propose to insert the following provisions and clauses:

1352.271-70 Inspection and Manner of Doing Work

1352.271-71 Method of Payment and Invoicing Instructions for Ship Repair

1352.271-72 Additional Item Requirements (AIR)—Growth Work

1352.271-73 Schedule of Work

1352.271-74 Foreseeable Cost Factors Pertaining to Different Shipyard Locations

1352.271-75 Delivery and Shifting of the Vessel

1352.271-76 Performance

1352.271-77 Delays

1352.271-78 Minimization of Delay Due to Government Furnished Property

1352.271-79 Liability and Insurance

1352.271-80 Title

1352.271-81 Discharge of Liens

1352.271-82 Department of Labor Occupational Safety and Health Standards for Ship Repair

1352.271-83 Government Review, Comment, Acceptance and Approval

1352.271-84 Access to the Vessel

1352.271-85 Documentation of Requests for Equitable Adjustment

1352.271-86 Lay Days

1352.271-87 Changes—Ship Repair

1352.271-88 Guarantees

1352.271-89 Temporary Services

1352.271-90 Insurance Requirements

Classification

This proposed rule has been determined to be not significant for purposes of Executive Order 12866, Regulatory Planning and Review.

Under the Regulatory Flexibility Act (5 U.S.C. 601

et seq.,

as amended by the Small Business Regulatory Enforcement Fairness Act of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (

i.e.,

small businesses, small organizations, and small government jurisdictions), unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Regulatory Flexibility Act requires Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

Pursuant to the Regulatory Flexibility Act, the Chief Counsel for Regulation certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule will not have a significant economic impact on a substantial number of small entities. The rule would update the Commerce Acquisition Regulations; it does not directly regulate any small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This rule does not impose any new information collections subject to review and approval by OMB under the Paperwork Reduction Act. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of PRA, unless that collection of information displays a currently valid OMB control number.

List of Subjects

48 CFR Part 1301

Acquisition regulations, Federal acquisition regulations, Government procurement, Government contracts, Procurement, Reporting and recordkeeping requirements.

48 CFR Part 1302

Definitions, Government procurement, Terms.

48 CFR Part 1303

Antitrust, Conflict of interests, Ethical conduct, Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1304

Classified information, Computer technology, Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1305

Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1306

Government procurement, Justifications, Sole source acquisitions.

48 CFR Part 1307

Acquisition planning, Government procurement, Inherently governmental functions, Reporting and recordkeeping requirement.

48 CFR Part 1308

Government procurement, Printing.

48 CFR Part 1309

Debarment, Government procurement, Suspension, Reporting and recordkeeping requirement.

48 CFR Part 1311

Government procurement, Liquidated damages, Market acceptance.

48 CFR Part 1312

Government procurement, Tailoring clauses, Tailoring provisions, Tailoring terms and conditions.

48 CFR Part 1313

BPA, Blanket purchase agreement, Government procurement, Imprest funds, Micro-purchase authority, Purchase order modifications, Small business, Third-party drafts, Training.

48 CFR Part 1314

Equipment inspection, Government procurement, Pre-bid conference, Pre-proposal conference, Reporting and recordkeeping requirements, Site visit.

48 CFR Part 1315

Evaluation, Indefinite quantity, Inquiries, Government procurement, Oral presentations, Proposal preparation, Reporting and recordkeeping requirements, Should-cost review, Source selection, Unsolicited proposals.

48 CFR Part 1316

Government procurement, Ombudsman.

48 CFR Part 1317

Multi-year contract, Congressional notification, Interagency agreement.

48 CFR Part 1318

Emergency procurement, Reporting and recordkeeping requirements, Contingency operation, Warrants.

48 CFR Part 1319

Partnership agreement, Set aside, Small business, SBA.

48 CFR Part 1322

Aged, Child labor, Civil rights, Equal employment opportunity, Government procurement, Individuals with disabilities, Labor, Labor disputes, Prisoners, Reporting and recordkeeping requirements, Veterans, Wages, Work stoppages.

48 CFR Part 1323

Affirmative procurement program, Air pollution control, Drug abuse, Drug-free workplace, Energy conservation, Environmental, Government procurement, Hazardous substances, Recycling, Renewable energy, Water pollution control.

48 CFR Part 1324

Freedom of Information, Government procurement, privacy.

48 CFR Part 1325

Buy American Act, Customs duties and inspection, Foreign currencies, Foreign trade, Government procurement.

48 CFR Part 1326

Disaster assistance, Government procurement.

48 CFR Part 1327

Copyright, Government procurement, Inventions and patents, Reporting and recordkeeping requirements.

48 CFR Part 1328

Government procurement, Insurance, Reporting and recordkeeping requirements, Surety bonds.

48 CFR Part 1329

Government procurement, Reporting and recordkeeping requirements, Taxes, Tax exemptions.

48 CFR Part 1330

Accounting, Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1331

Accounting, Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1332

Electronic funds transfer, Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1333

Administrative practice and procedure, Claims, Government procurement.

48 CFR Part 1334

Earned value management, EVM, EVMS, Major system acquisition.

48 CFR Part 1335

FFRDC, Human subject.

48 CFR Part 1336

Evaluation boards, Government procurement, Reporting and recordkeeping requirements, Selection.

48 CFR Part 1337

Contractor processing, Government Procurement, Information Technology, Security, Service contracting, Standards.

48 CFR Part 1339

Contractor processing, Government procurement, Information Technology, Security, Service contracting.

48 CFR Part 1341

Government procurement, Reporting and recordkeeping requirements, Utilities.

48 CFR Part 1342

Accounting, Government procurement, Indirect cost rates, Postaward conference, Reporting and recordkeeping requirements.

48 CFR Part 1344

Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1345

Government procurement, Government property, Reporting and recordkeeping requirements.

48 CFR Part 1346

Government procurement, Inspection, Reporting and recordkeeping requirements, Warranties.

48 CFR Part 1347

Freight, Government procurement, Marking, Reporting and recordkeeping requirements, Transportation.

48 CFR Part 1348

Government procurement, Reporting and recordkeeping requirements, Value Engineering Change Proposals (VECP).

48 CFR Part 1349

Criminal conduct, Default, Fraud, Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1350

Government procurement, Hazardous risk, National defense, Nuclear risk, Reporting and recordkeeping requirements.

48 CFR Part 1352

Government procurement, Matrix, Reporting and recordkeeping requirements.

48 CFR Part 1353

Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1370

Period of performance, Pre-bid conference, Pre-proposal conference, Site visit.

48 CFR Part 1371

Inspection, Guarantees, Liability, Liens, Ship construction, Ship repair, Vessel, Insurance.

Dated: September 4, 2009.

John F. Charles,

Deputy Assistant Secretary for Administration.

For the reasons stated in the preamble, the Department of Commerce proposes to revise 48 CFR Chapter 13 to read as follows:

CHAPTER 13—DEPARTMENT OF COMMERCE

SUBCHAPTER A—GENERAL

Part

1301 Department of Commerce Acquisition Regulations System.

1302 Definitions of words and terms.

1303 Improper business practices and personal conflicts of interest.

1304 Administration matters.

SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING

1305 Publicizing contact actions.

1306 Competition requirements.

1307 Acquisition planning.

1308 Required sources of supplies and services.

1309 Contractor qualifications.

1311 Describing agency needs.

1312 Acquisition of commercial items.

SUBCHAPTER C—CONTRACTING METHODS AND CONTRACT TYPES

1313 Simplified acquisition procedures.

1314 Sealed bidding.

1315 Contracting by negotiation.

1316 Types of contracts.

1317 Special contracting methods.

1318 Emergency acquisitions.

SUBCHAPTER D—SOCIOECONOMIC PROGRAMS

1319 Small business programs.

1322 Application of labor laws to government acquisitions.

1323 Environment, energy and water efficiency, renewable energy technologies, occupational safety, and drug-free workplace.

1324 Protection of privacy and freedom of information.

1325 Foreign acquisition.

1326 Other socioeconomic programs.

SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS

1327 Patents, data, and copyrights.

1328 Bonds and insurance.

1329 Taxes.

1330 Cost accounting standards administration.

1331 Contract cost principles and procedures.

1332 Contract financing.

1333 Protests, disputes, and appeals.

SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING

1334 Major system acquisition.

1335 Research and development contracting.

1336 Construction and architect-engineer contracts.

1337 Service contracting.

1339 Acquisition of information technology.

1341 Acquisition of utility services.

SUBCHAPTER G—CONTRACT MANAGEMENT

1342 Contract administration.

1344 Subcontracting policies and procedures.

1345 Government property.

1346 Quality assurance.

1348 Value engineering.

1349 Termination of contracts.

1350 Extraordinary contractual actions.

SUBCHAPTER H—CLAUSES AND FORMS

1352 Solicitation provisions and contract clauses.

1353 Forms.

SUBCHAPTER I—DEPARTMENT SUPPLEMENTAL REGULATIONS

1370 Universal solicitation provisions and contract clauses.

1371 Acquisitions involving ship construction and ship repair.

Subchapter A—General

PART 1301—DEPARTMENT OF COMMERCE ACQUISITION REGULATIONS SYSTEM

Sec.

1301.000 Scope of part.

Subpart 1301.1—Purpose, Authority, Issuance

1301.101 Purpose.

1301.103 Authority.

1301.104 Applicability.

1301.105 Issuance.

1301.105-1 Publication and code arrangement.

1301.105-2 Arrangement of regulations.

1301.105-3 Copies.

Subpart 1301.3—Agency Acquisition Regulations

1301.301 Policy.

1301.303 Publication and codification.

1301.304 Agency control and compliance procedures.

Subpart 1301.4—Deviations From the FAR

1301.403 Individual deviations.

1301.404 Class deviations.

Subpart 1301.6—Career Development, Contracting Authority, and Responsibilities

1301.601 General.

1301.602 Contracting officers.

1301.602-1 Authority.

1301.602-170 Provisions and clauses.

1301.602-3 Ratification of unauthorized commitments.

1301.602-370 Ratification approval by Procurement Counsel.

1301.603 Selection, appointment, and termination of appointment.

1301.603-1 General.

1301.603-2 Selection.

1301.603-3 Appointment.

1301.603-4 Termination.

1301.670 Appointment of contracting officer's representative (COR).

1301.670-70 Provisions and clauses.

1301.671 Assignment of program and project managers.

Subpart 1301.7—Determinations and Findings

1301.707 Signatory authority.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

1301.000

Scope of part.

This part sets out general Department of Commerce Acquisition Regulation (CAR) policies, including information regarding the maintenance and administration of the CAR, acquisition policies and practices, and procedures for deviation from the CAR and the Federal Acquisition Regulation (FAR) This part describes the Commerce Acquisition Regulation in terms of establishment, relationship to the Federal Acquisition Regulation, arrangement, applicability, and deviation procedures.

Subpart 1301.1—Purpose, Authority, Issuance

1301.101

Purpose.

The CAR establishes uniform acquisition policies and procedures that implement and supplement the FAR. If there is a discrepancy between the CAR and FAR, the FAR will take precedence.

1301.103

Authority.

The CAR is issued under the authority of section 22 of the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 418b), and FAR Subpart 1.3 by the Department Procurement Executive pursuant to a delegation initiating from the Secretary of Commerce.

1301.104

Applicability.

The CAR applies to all Department of Commerce (DOC) acquisitions as defined in Part 2 of the FAR, except where expressly excluded.

1301.105

Issuance.

1301.105-1

Publication and Code Arrangement.

(a) The CAR is published in the

Federal Register

, in cumulative form in the Code of Federal Regulations (CFR), and is available online at the U.S. Department of Commerce, Office of Acquisition Management Web site.

(b) The CAR is issued as Chapter 13 of Title 48 of the CFR.

1301.105-2

Arrangement of regulations.

(a)

General.

The CAR is divided into the same parts, subparts, sections, and subsections as the FAR.

(b)

Numbering.

If the DOC does not have supplemental regulations there will be no corresponding coverage in the CAR, and there will be gaps in the CAR numbering system.

1301.105-3

Copies.

(a) Copies of the CAR in

Federal Register

or CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402.

(b) The CAR is available online at the U.S. Department of Commerce, Office of Acquisition Management Web site.

Subpart 1301.3—Agency Acquisition Regulations

1301.301

Policy.

(a) The designee authorized to prescribe the CAR is set forth in the Commerce Acquisition Manual (CAM) 1301.70.

(b) The DOC internal operating guidance and procedures are contained in the CAM and other policy guidance documents issued by the Procurement Executive relating to acquisitions. The DOC Contracting Offices may issue additional guidance and procedures.

1301.303

Publication and codification.

(a) The CAR parallels the FAR in format, arrangement and numbering system. Coverage within the CAR is identified by the prefix “13” or “130” followed by the complete FAR citation to the subsection level (

e.g.

, CAR coverage of FAR 1.602-1 is cited as 1301.602-1).

(b) Supplementary material without a FAR counterpart will be codified using 70 and up as appropriate for the part, subpart, section, or subsection number (

e.g.

, Part 1370, subpart 1301.70, section 1301.370 or subsection 1301.301-70).

1301.304

Agency control and compliance procedures.

Operating unit counsel shall limit issuance of directives that restrain the flexibilities found in the FAR.

Subpart 1301.4—Deviations From the FAR

1301.403

Individual deviations.

The designee authorized to approve individual deviations from the FAR is set forth in CAM 1301.70.

1301.404

Class deviations.

The designee authorized to approve class deviations from the FAR is set forth in CAM 1301.70.

Subpart 1301.6—Career Development, Contracting Authority, and Responsibilities

1301.601

General.

The agency head for procurement matters is the Chief Financial Officer/Assistant Secretary for Administration (CFO/ASA), unless prohibited by statute. The authority for agency head for procurement matters is delegated to the Procurement Executive as the authority to establish lines of contracting authority within DOC and to implement policies and procedures related to the acquisition process. Specific contracting authorities are set forth in CAM 1301.70.

1301.602

Contracting officers.

1301.602-1

Authority.

In accordance with CAM 1301.70, only individuals who have been certified as contracting officers through issuance of a Certificate of Appointment by the Senior Bureau Procurement Official may exercise the authority of DOC contracting officers. In addition to the authority to enter into, administer, and terminate contracts, contracting officers have been delegated certain functions as set out in Appendix A to CAM 1301.70.

1301.602-170

Provisions and clauses.

Insert clause 1352.201-70,

Contracting Officer's Authority

, in all solicitations and contracts.

1301.602-3

Ratification of unauthorized commitments.

(a) Insert clause 1352.201-71,

Ratification Release

, in a contract document under which payment is made for unauthorized commitments after a ratification has been processed.

(b)(1) Unauthorized commitments occur when the Department accepts goods or services in the absence of an enforceable contract entered into by an authorized official. It is the policy of DOC that all acquisitions are to be made only by Government officials having authority to make such acquisitions. Acquisitions made by other than authorized personnel are contrary to Departmental policy and the Department is not bound by any formal or informal type of agreement or contractual commitment which is made by persons who are not delegated contracting authority. Payment for goods or services accepted in the absence of an authorized commitment may be made only through the ratification process. Unauthorized commitments may be considered matters of serious misconduct and may subject the responsible employees to appropriate disciplinary actions.

(2) The delegation of the ratification authority is set forth in CAM 1301.70. All requests for ratification must fully explain the circumstances that gave rise to the unauthorized commitment and detail, if appropriate, any disciplinary action taken with respect to any responsible employee. Ratifications may be approved only if all criteria in FAR 1.602-3 have been met.

1301-602-370

Ratification approval by Procurement Counsel.

Ratifications may not be approved unless the concurrence of Procurement Counsel is obtained.

1301.603

Selection, appointment, and termination of appointment.

1301.603-1

General.

The Department's procurement career management program and system for the selection, appointment, and termination of appointment of contracting officers are described in CAM 1301.6.

1301.603-2

Selection.

In addition to the criteria set forth in FAR 1.603-2, selection of contracting officers shall be based upon Section 4 of CAM 1301.6.

1301.603-3

Appointment.

In addition to the criteria set forth in FAR 1.603-3, appointment of contracting officers shall be based upon Section 4 of CAM 1301.6.

1301.603-4

Termination.

In addition to the criteria set forth in FAR 1.603-4, termination of contracting officers shall be based upon Section 4 of CAM 1301.6.

1301.670

Appointment of contracting officer's representative (COR).

The Department's Contracting Officer's Representative certification program for the nomination, appointment and cancellation of CORs is described in CAM 1301.670.

1301.670-70

Provisions and clauses.

Insert clause 1352.201-72,

Contracting Officer's Representative (COR),

in all solicitations and contracts where a COR will be appointed.

1301.671

Assignment of program and project managers.

The Department's Program and Project Manager certification program for the assignment and certification of Program and Project Managers is described in CAM 1301.671.

Subpart 1301.7—Determinations and Findings

1301.707

Signatory authority.

Signatory authority for determinations and findings (D&Fs) is specified in the FAR for the associated subject matter unless otherwise noted in CAM 1301.70.

PART 1302—DEFINTIONS OF WORDS AND TERMS

Subpart 1302.1—Definitions

Sec.

1302.101

Definitions.

1302.170

Abbreviations.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1302.1—Definitions

1302.101

Definitions.

Accountable Personal Property

means all personal property for which responsibility for control is formally assigned to an individual, and official property records are maintained as set forth in DOC PPMM Chapter 4.

Agency Head (or Head of Agency) (HA)

means the Secretary of Commerce, except, pursuant to Department Organization Order (DOO) 10-5,

Chief Financial Officer and Assistant Secretary for Administration,

the head of the agency for procurement matters shall be the Chief Financial Officer and Assistant Secretary for Administration (CFO/ASA), unless a statute provides that the authority of the Secretary is non-delegable.

Chief Acquisition Officer (CAO)

means the Department's executive-level non-career employee designated pursuant to the

Services Acquisition Reform Act

to advise and assist the head of the agency and other agency officials to ensure the mission of the agency is achieved through the management of the agency's acquisition activities. The CFO/ASA has been designated by the Head of the Agency as the Chief Acquisition Officer for the Department of Commerce.

Civilian Agency Acquisition Council (CAAC)

means the council that assists the Administrator of General Services in developing and maintaining the Federal Acquisition Regulation (FAR) System by developing or reviewing all proposed changes to the FAR. The Council is comprised of a representative designated by each of several Federal departments and agencies, including the DOC. The CAAC coordinates its activities with the Defense Acquisition Regulations Council (DARC). The CAAC is authorized under 48 CFR 1.2.

Commerce Acquisition Manual (CAM)

means non-regulatory uniform policies and procedures for internal operations associated with acquiring supplies and services within the Department that implements and supplements the FAR and CAR.

Commerce Acquisition Regulation (CAR)

means uniform acquisition policies and procedures, which implement and supplement the FAR.

Contracting Activity

means the operating units identified under the definition of “Operating Units” below. Contracting activities may or may not have authority to operate contracting offices (

see

definition for

Contracting Office

).

Contracting Office

means an office that awards or executes contracts for supplies or services and performs post-

award functions. The operating units authorized to operate contracting offices are identified in DAO 208-2.

Contracting Officer

means an individual designated authority by the Senior Bureau Procurement Official (BPO) to enter into, administer, and/or terminate contracts and make related determinations and findings. Only those individuals who have been certified as contracting officers, through the issuance of a Certificate of Appointment (Contracting Officer Warrant (SF 1402)), by the BPO in accordance with the requirements and procedures of the CAR and the CAM may exercise the authorities of contracting officers. However, by virtue of their positions, the Head of the Agency, the Procurement Executive, and the Heads of Operating Units are also designated as contracting officers.

Department or Departmental or DOC

means the Department of Commerce.

Head of Agency (HA)

—

see

definition for “Agency Head.”

Head of Contracting Office (HCO)

means those individuals designated by the BPO to head the contracting offices within each operating unit that has designated contracting authority to award and administer contracts. In performing their duties, HCOs are empowered to the full limits of the Department's contracting authority. The HCO must be a procurement professional in the GS-1102 occupational series (or equivalent OPM occupational designation). BPOs will issue each HCO a Contracting Officer Warrant that delegates the authority to enter into, administer, and/or terminate contracts and to make related determinations and findings.

Head of the Contracting Activity (HCA)

means, for purposes of delegation of contracting authority, officials who are designated as Heads of Operating Units (those who are assigned by the President or by the Secretary to manage the primary or constituent operating units of the DOC) in orders establishing the respective operating units, with the exception of the Office of the Secretary. Such officials are designated as the HCA for procurements initiated in support of the procurement activities of that operating unit. The Chief Financial Officer and Assistant Secretary for Administration has been designated as the HCA for procurements initiated in support of the programs and activities of the Office of the Secretary and all other Secretarial Offices and Departmental Offices.

Office of Small and Disadvantaged Business Utilization (OSDBU), The

means the advocacy and advisory office responsible for promoting the use of small, small disadvantaged, 8(a), women-owned, veteran-owned, service-disabled veteran-owned, and HUBZone small businesses within the Department acquisition process.

Office of the Assistant General Counsel for Administration, Employment & Labor Law Division

means the Department Legal Office that provides advice and guidance to management regarding employment and labor law issues, including the legal standards for taking adverse and performance-based actions.

Office of the Assistant General Counsel for Administration, Ethics Law and Program Division

means the Department Legal Office that provides advice and guidance regarding conflict of interest statutes, ethics regulations, and related laws.

Operating Units

are organizational entities outside the Office of the Secretary charged with carrying out specified substantive functions (

i.e.,

programs) of the Department and are identified in DAO 208-2.

Procurement Counsel

means, except for the Patent and Trademark Office (PTO), the Office of the Assistant General Counsel for Finance & Litigation, Contract Law Division, the office responsible for providing legal review of applicable contract actions and procurement legal advice to all operating units, and handling procurement-related litigation. “Procurement Counsel” for all PTO procurement-related actions means Office of General Law.

Procurement Executive (or Senior Procurement Executive (PE))

means the official appointed pursuant to Executive Order 12931 and the Services Acquisition Reform Act of 2003 to carry out the responsibilities identified in both the Executive Order and the Act. The Director for Acquisition Management is the Procurement Executive for the Department of Commerce.

Senior Bureau Procurement Official (BPO)

means the senior career procurement official, within each operating unit that has been delegated contracting authority, who is designated as the Senior Bureau Procurement Official. The BPO must be a procurement professional who has both experience and training in the area of Federal procurement and contracting. HCAs may designate one BPO within their organization to carry out the day-to-day functions of managing the contracting activity. BPOs may also serve as the Head of Contracting Office. The Procurement Executive will issue each BPO a Contracting Officer Warrant which delegates the authority to enter into, administer, and/or terminate contracts and to make related determinations and findings.

1302.170

Abbreviations.

AIR Additional Item Requirements

BPO Senior Bureau Procurement Official

CAAC Civilian Agency Acquisition Council

CAM Commerce Acquisition Manual

CAO Chief Acquisition Officer

CAR Commerce Acquisition Regulation

CFO/ASA Chief Financial Officer/Assistant Secretary for Administration

CFR Code of Federal Regulations

CO Contracting Officer

COR Contracting Officer's Representative

DAO Departmental Administrative Order

DOC Department of Commerce

DOO Departmental Organizational Order

D&F Determination and Findings

EVMS Earned Value Management System

FAR Federal Acquisition Regulation

HCA Head of Contracting Activity

HCO Head of Contracting Office

IRB Institutional Review Board

JOFOC Justification for Other than Full and Open Competition

NIST National Institute of Standards and Technology

NOAA National Oceanic and Atmospheric Administration

OCI Organizational Conflict of Interest

OCIO Office of the Chief Information Officer

OFPP Office of Federal Procurement Policy

OIG Office of Inspector General

OMB Office of Management and Budget

OS Office of the Secretary

OSDBU Office of Small and Disadvantaged Business Utilization

PE Procurement Executive

PTO Patent and Trademark Office

RFP Request for Proposals

SBA Small Business Administration

OU Operating Unit

PART 1303—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Subpart 1303.1—Safeguards

Sec.

1303.101

Standards of conduct.

1303.101-2

Solicitation and acceptance of gratuities by government personnel.

1303.101-3

Agency regulations.

1303.104

Procurement integrity.

1303.104-4

Disclosure, protection and marking of contractor bid or proposal information and source selection information.

1303.104-7

Violations or possible violations.

Subpart 1303.2—Contractor Gratuities to Government Personnel

1303.203

Reporting suspected violations of the gratuities clause.

1303.204

Treatment of violations.

Subpart 1303.3—Reports of Suspected Antitrust Violations.

1303.303

Reporting suspected antitrust violations.

Subpart 1303.4—Contingent Fees.

1303.405

Misrepresentations or violations of the covenant against contingent fees.

Subpart 1303.5—Other Improper Business Practices.

1303.502

Subcontractor kickbacks.

1303.502-2

Subcontractor kickbacks.

Subpart 1303.6—Contracts With Government Employees or Organizations Owned or Controlled by Them.

1303.602

Exceptions.

Subpart 1303.7—Voiding and Rescinding Contracts.

1303.704

Policy.

1303.705

Procedures.

Subpart 1303.8—Limitation on the Payment of Funds To Influence Federal Transactions.

1303.804

Policy.

1303.806

Processing suspected violations.

Subpart 1303.9—Whistleblower Protections for Contractor Employees.

1303.905

Procedures for investigating complaints.

1303.906

Remedies.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1303.1—Safeguards

1303.101

Standards of conduct.

1303.101-2

Solicitation and acceptance of gratuities by government personnel.

(a) Suspected violations of the prohibition on soliciting and accepting gratuities shall be reported to the Office of the Inspector General in accordance with DAO 207-10,

Inspector General Investigations.

(b) To obtain legal advice regarding the solicitation and acceptance of gratuities, contact the Office of the Assistant General Counsel for Administration, Ethics Law and Program Division.

1303.101-3

Agency regulations.

The Department has issued rules implementing Executive Order 11222 prescribing employee standards of conduct (

see

DOC Office of General Counsel Web site).

1303.104

Procurement integrity.

1303.104-4

Disclosure, protection and marking of contractor bid or proposal information and source selection information.

Contractor bid or proposal information and source selection information must be protected from unauthorized disclosure in accordance with FAR Parts 3, 14 and 15, and CAM 1315.3.

1303.104-7

Violations or possible violations.

Suspected violations of the Procurement Integrity Act shall be reported to the individuals designated in CAM 1301.70.

Subpart 1303.2—Contractor Gratuities to Government Personnel

1303.203

Reporting suspected violations of the gratuities clause.

Suspected violations of the Gratuities clause shall be reported to the HCA in writing detailing the circumstances. The report must identify the contractor and personnel involved, provide a summary of the pertinent evidence and circumstances that indicate a violation, and include any other available supporting documentation. The HCA will evaluate the report, and, if the allegations appear to support a violation, the matter will be referred to the Head of Contracting Office with copies provided to the Senior Procurement Executive and the DOC Office of Inspector General.

See

DAO 207-10 for procedures.

1303.204

Treatment of violations.

(a) The designee authorized to determine violations of the Gratuities clause is set forth in CAM 1301.70.

(b) Upon receipt of an allegation or evidence of a violation of the Gratuities clause, the designee shall conduct a fact-finding. If there is a basis for further action, a signed notice shall be prepared and sent to the contractor by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. If a reply is not received from the contractor within 45 calendar days of sending the notice, a decision shall be made on the appropriate action to be taken. If a reply is received from the contractor within 45 calendar days of sending the notice, the information in the reply must be considered before making a decision on the appropriate action to be taken. Upon request of the contractor, the contractor shall be provided an opportunity to appear in person to present information concerning the matter. A report shall be prepared following the presentation and the information must be considered when making a decision. A decision shall be made on the basis of all information available, including findings of fact and oral or written information submitted by the contractor. All mitigating factors shall be considered prior to making a final decision concerning what action will be taken.

Subpart 1303.3—Reports of Suspected Antitrust Violations

1303.303

Reporting suspected antitrust violations.

Suspected anti-competitive practices and antitrust law violations, as described in FAR 3.301 and FAR 3.303, shall be reported to the Contract Law Division, by the HCO. A copy of the report shall be sent to the Procurement Executive concurrently with the submission to the Office of the Assistant General Counsel for Administration, Ethics Law and Program Division. The Office of the Assistant General Counsel will submit any required reports to the Attorney General.

Subpart 1303.4—Contingent Fees

1303.405

Misrepresentations or violations of the covenant against contingent fees.

If the contracting officer has specific evidence or other reasonable basis to believe that a violation of the Covenant Against Contingent Fees has occurred, the matter shall be referred to the HCO, who shall, in appropriate circumstances, take one or more of the actions described in FAR 3.405(b). The HCO shall also refer the matter to the DOC Office of the Inspector General as well as the Office of the Assistant General Counsel for Administration, Ethics Law and Program Division. The Office of the Assistant General Counsel for Administration, Ethics Law and Program Division shall refer the matter to the Department of Justice, as appropriate.

Subpart 1303.5—Other Improper Business Practices

1303.502

Subcontractor kickbacks.

1303.502-2

Subcontractor kickbacks.

Suspected violations of the Anti-Kickback Act of 1986 shall be reported to the DOC Office of Inspector General.

Subpart 1303.6—Contracts with Government Employees or Organizations Owned or Controlled by Them

1303.602

Exceptions.

The designee authorized to make an exception to the policy in FAR 3.601 is set forth in CAM 1301.70.

Subpart 1303.7—Voiding and Rescinding Contracts

1303.704

Policy.

The designee authorized to declare void and rescind contracts, in cases in which there has been a final conviction for any violation of 18 U.S.C. 201-224, is set forth in CAM 1301.70.

1303.705

Procedures.

The designee authorized to declare a contract void and rescinded is set forth in CAM 1301.70. The DOC will follow the procedures set forth in FAR 3.705.

Subpart 1303.8—Limitation on the Payment of Funds To Influence Federal Transactions

1303.804

Policy.

The original OMB Form LLL, Disclosure of Lobbying Activities, shall be retained in the contract file and a copy shall be submitted to the Office of the Assistant General Counsel for Administration, Ethics Law and Program Division.

1303.806

Processing suspected violations.

Suspected violations of 31 U.S.C. 1352 shall be referred to the DOC Office of Inspector General and the Senior Procurement Executive.

Subpart 1303.9—Whistleblower Protections for Contractor Employees

1303.905

Procedures for investigating complaints.

The designee authorized to take specified actions related to Inspector General findings regarding whistleblower complaints of contractor employees is set forth in CAM 1301.70.

1303.906

Remedies.

The designee authorized to determine whether a contractor has subjected an employee to reprisal and to determine the appropriate remedy is set forth in CAM 1301.70.

PART 1304—ADMINISTRATIVE MATTERS

Subpart 1304.2—Contract Distribution

Sec.

1304.201

Procedures.

1304.201-70

Accountable personal property.

Subpart 1304.6—Contract Reporting

1304.602

General.

1304.602-70

Federal Procurement Data System.

Subpart 1304.8—Government Contract Files

1304.804

Closeout of contract files.

1304.804-70

Contract closeout procedures.

1304.805

Storage, handling, and disposal of contract files.

1304.805-70

Storage, handling, and disposal of contract files.

Subpart 1304.13—Personal Identity Verification

1304.1301

Policy.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1304.2—Contract Distribution

1301.201

Procedures.

1304.201-70

Accountable personal property.

Provide one copy of all contracts and purchase orders for accountable personal property to the appropriate Departmental property management office(s) for inclusion in the Department's personal property system in accordance with the DOC Personal Property Management Manual. Accountable personal property purchased with a Governmentwide commercial purchase card is also to be reported to the property management office.

Subpart 1304.6—Contract Reporting

1304.602

General.

1304.602-70

Federal Procurement Data System.

Departmental Federal Procurement Data System reporting procedures are set forth in CAM 1304.602.

Subpart 1304.8—Government Contract Files

1304.804

Closeout of contract files.

1304.804-70

Contract closeout procedures.

CAM 1304.804 supplements FAR 4.804 with the Department's contract closeout procedures.

1304.805

Storage handling and disposal of contract files.

1304.805-70

Storage, handling, and disposal of contract files.

CAM 1304.804 supplements FAR 4.805 with the Department's procedures for storage, handling, and disposal of contract files.

Subpart 1304.13—Personal Identity Verification

1304.1301

Policy.

(a) Implementation of Federal Information Processing Standards Publication (FIPS PUB) 201 and OMB guidance M-05-24 is set forth in DOC Personal Identify Verification (PIV) Implementation Guidance, which is available on the Office of Security Web site.

(b) The DOC official responsible for verifying contractor employee personal identity is set forth in the DOC Personal Identify Verification (PIV) Implementation Guidance.

Subchapter B—Competition and Acquisition Planning

PART 1305—PUBLICIZING CONTRACT ACTIONS

Subpart 1305.2—Synopses of Proposed Contract Actions.

Sec.

1305.202

Exceptions.

Subpart 1305.4—Release of Information

1305.403

Requests from Members of Congress.

1305.404

Release of long range acquisition estimates.

1305.404-1

Release procedures.

Subpart 1305.5—Paid Advertisements

1305.502

Authority.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1305.2—Synopses of Proposed Contract Actions

1305.202

Exceptions.

The designee authorized to decide, in writing, that advance notice through the GPE (Governmentwide Point of Entry) is not appropriate or reasonable is set forth in CAM 1301.70.

Subpart 1305.4—Release of Information

1305.403

Requests from Members of Congress.

Requests from Members of Congress shall be handled in accordance with the policies and procedures outlined in DAO 218-2.

1305.404

Release of long-range acquisition estimates.

1305.404-1

Release procedures.

The designee authorized to release long-range acquisition estimates is set forth in CAM 1301.70.

Subpart 1305.5—Paid Advertisements

1305.502

Authority.

The designee authorized to provide authorization for publication of paid advertisements in newspapers is set forth in CAM 1301.70. The contracting officer shall obtain written authorization from the designee.

PART 1306—COMPETITION REQUIREMENTS

Subpart 1306.2—Full and Open Competition After Exclusion of Sources

Sec.

1306.202

Establishing or maintaining alternative sources.

Subpart 1306.3—Other Than Full and Open Competition

1306.302

Circumstances permitting other than full and open competition.

1306.302-5

Authorized or required by statute.

1306.303

Justification.

1306.303-70

Documentation and legal review of justifications.

1306.304

Approval of the justification.

Subpart 1306.5—Competition Advocates

1306.501

Requirement.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1306.2—Full and Open Competition After Exclusion of Sources

1306.202

Establishing or maintaining alternative sources.

The authority to exclude a source from a contract action in order to establish or maintain an alternate source is set forth in CAM 1301.70

Subpart 1306.3—Other Than Full and Open Competition

1306.302

Circumstances permitting other than full and open competition.

1306.302-5

Authorized or required by statute.

In accordance with Executive Order 13457, a sole source acquisition may not be justified on the basis of any earmark included in any non-statutory source, except when otherwise required by law or when an earmark meets the criteria for funding set out in Executive Order 13457.

1306.303

Justifications.

1306.303-70

Documentation and legal review of justifications.

The justification for providing for other than full and open competition in accordance with FAR 6.303-2 shall be provided on Form CD-492,

Justification for Other than Full and Open Competition.

If the estimated value of the procurement is over legal review thresholds, concurrence by the Procurement Counsel is required.

1306.304

Approval of the justification.

The designee authorized to approve justifications for other than full and open competition at the dollar thresholds in FAR 6.304 is set forth in CAM 1301.70.

Subpart 1306.5—Competition Advocates

1306.501

Requirement.

The designee authorized to designate a Competition Advocate for the Department and each procuring activity is set forth in CAM 1301.70.

PART 1307—ACQUISITION PLANNING

Subpart 1307.1—Acquisition Plans

Sec.

1307.102

Policy.

1307.103

Agency head responsibilities.

1307.105

Contents of written acquisition plans.

Subpart 1307.3—Contractor versus Government Performance

1307.302

Policy.

Subpart 1307.5—Inherently Governmental Functions

1307.503

Policy.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1307.1—Acquisition Plans

1307.102

Policy.

In accordance with FAR 7.102, it is the Department's policy to perform acquisition planning and conduct market research in order to promote the acquisition of commercial items and provide for full and open competition.

1307.103

Agency-head responsibilities.

The designee authorized as responsible for compliance with FAR 7.103 is set forth in CAM 1301.70.

1307.105

Contents of written acquisition plans.

Information on the contents of Acquisition Plans is set forth in CAM 1307.1.

Subpart 1307.3—Contractor versus Government Performance

1307.302

Policy.

The Department's competitive sourcing policy and procedures are set forth in CAM 1307.370.

Subpart 1307.5—Inherently Governmental Functions

1307.503

Policy.

All procurement request packages submitted by program offices to initiate a procurement action for services shall contain a written determination by the designated requirements official that affirms that none of the functions to be performed in the statement of work are inherently governmental. This policy applies to all services other than personal services issued under statutory authority. If the contracting officer determines that there are substantial questions whether the work statement involves performance of inherently governmental functions, the contracting officer shall submit the matter for review by Procurement Counsel. Disagreements regarding the determination shall be resolved by the Head of Contracting Office (HCO) after consultation with counsel.

PART 1308—REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 1308.8—Acquisition of Printing and Related Supplies

Sec.

1308.802

Policy.

1308.802-70

Printing.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1308.8 -Acquisition of Printing and Related Supplies

1308.802

Policy.

The designee authorized as the Department's central printing authority is set forth in CAM 1301.70.

1308.802-70

Printing.

Insert clause 1352.208-70,

Restrictions on Printing and Duplicating,

in all solicitations and contracts when printing documents may be required in the performance of the contract.

PART 1309—CONTRACTOR QUALIFICATIONS

Subpart 1309.2—Qualifications Requirements

Sec.

1309.202

Policy.

1309.206

Acquisitions subject to qualification requirements.

1309.206-1

General.

Subpart 1309.4—Debarment, Suspension, and Ineligibility

1309.403

Definitions.

1309.405

Effect of listing.

1309.405-1

Continuation of current contracts.

1309.405-2

Restrictions on subcontracting.

1309.406

Debarment.

1309.406-1

General.

1309.406-3

Procedures.

1309.407

Suspension.

1309.407-1

General.

1309.407-3

Procedures.

Subpart 1309.5—Organizational and Consultant Conflicts of Interest

1309.503

Waiver.

1309.503-70

Waiver.

1309.506

Procedures.

1309.507

Solicitation provisions and contract clauses.

1309.507-1

Solicitation provisions.

1309.507-2

Contract clauses.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1309.2—Qualifications Requirements

1309.202

Policy.

(a) The designee authorized to establish qualification requirements is set forth in CAM 1301.70.

(b) The designee authorized to waive the requirements of 9.202 (a)(1)(ii) through (4) for up to 2 years with respect to the item subject to the qualification requirement is set forth in CAM 1301.70. This waiver authority does not apply to the qualification requirements contained in a qualified product list, qualified manufacturer list, or qualification bidders list.

(c) The designee authorized to approve proceeding with a procurement, rather than delay the award in order to provide a potential offeror an opportunity to demonstrate its ability to meet the standards specified in the qualifications, is set forth in CAM 1301.70.

1309.206

Acquisitions subject to qualification requirements.

1309.206-1

General.

When the designee authorized in CAM 1301.70 determines that an emergency exists, or elects before or after award not to enforce a qualification requirement it had established, the qualification requirement may not be thereafter enforced unless the agency complies with FAR 9.202(a).

Subpart 1309.4—Debarment, Suspension, and Ineligibility

1309.403

Definitions.

The designees authorized as the Debarring and Suspending Officials are set forth in CAM 1301.70.

1309.405

Effect of listing.

(a) Contracting officers shall review the Excluded Parties List System (EPLS) listing for contractors after the opening of bids or receipt of proposals and, again, immediately prior to award.

(b) The designee authorized to determine that a compelling reason exists to do business with a debarred/suspended contractor is set forth in CAM 1301.70. This designation does not apply to FAR 23.506(e).

1309.405-1

Continuation of current contracts.

(a) The designee authorized to direct the discontinuance of a contract or subcontract because of a debarment, suspension or proposed debarment is set forth in CAM 1301.70.

(b) A written determination must be issued by the designee authorized in CAM 1301.70 before the following actions can be taken with a contractor that is debarred, suspended or proposed for debarment:

(1) Place any orders exceeding the maximum on an indefinite delivery contract;

(2) Place orders under Federal supply schedule contracts, blanket purchase orders or basic ordering agreements; or

(3) Add new work or exercise options that extend the duration of a current contract or order.

1309.405-2

Restrictions on subcontracting.

The designee authorized to provide, in writing, compelling reasons for allowing Government consent to subcontracts with a contractor who is debarred, suspended or proposed for debarment is set forth in CAM 1301.70.

1309.406

Debarment.

1309.406-1

General.

Debarments and proposed debarments shall be effective throughout the Executive branch of the Government unless the designee authorized in CAM 1301.70 states in writing compelling reasons justifying DOC doing business with the contractor.

1309.406-3

Procedures.

(a)

Investigation and referral.

DOC employees shall immediately refer any cause that might serve as the basis for debarment through the contracting officer to the debarring official.

(b)

Decision-making process.

(1) Procedures shall afford the contractor, and any named affiliates, an opportunity to submit information and argument in opposition to the proposed debarment. This may be done in person, in writing or through a representative.

(2) In actions not based upon a conviction or civil judgment, where the contractor's submission raises a genuine dispute over facts material to the proposed debarment, the following procedures will be followed:

(i) Provide the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses and confront any person the agency presents;

(ii) A transcribed record of the proceeding will be made, unless the agency and contractor mutually agree to waive the requirement for a transcript. This transcribed record is available to the contractor at cost.

(c)

Notice of proposal to debar.

A notice of proposed debarment shall be issued by the debarring official in accordance with FAR 9.406-3(c)(1) through (7).

(d)

Debarring official's decision.

(1) For actions based upon a conviction or civil judgment, or when there is no authentic dispute over material facts, the debarring official's decision shall be based on all of the information in the administrative record plus any contractor-submitted data. If there is no suspension in effect, the decision shall be rendered within 30 working days after receipt of any information and argument submitted by the contractor. The debarring official can extend this timeframe for good cause.

(2)(i) When necessary, written findings of fact shall be prepared as to disputed material facts. The debarring official will utilize the information in the written findings of fact, the data submitted by the contractor plus any other information in the administrative record to develop the decision.

(ii) While the debarring official may refer matters involving disputed material facts to another official for findings of fact, the debarring official can disregard any such findings in whole or in part upon a determination that they are clearly erroneous.

(iii) After the conclusion of proceedings with respect to disputed facts, the debarring official will make a decision.

(3) When the proposed debarment is not based upon a conviction or civil judgment, the reason for debarment must be based on a preponderance of the evidence.

(e)

Notice of debarring official's decision.

FAR 9.406-3(e)(1) establishes the notification procedures when a debarment has been imposed, while FAR 9.406-3(e)(2) establishes the procedure when a debarment is not imposed.

(f) Procurement counsel shall assist and advise the debarring official at each stage of the decision-making process.

1309.407

Suspension.

1309.407-1

General.

Suspensions shall be effective throughout the executive branch of the Government, unless the designee set

forth in CAM 1301.70 states in writing compelling reasons for continuing to do business with a suspended contractor.

1309.407-3

Procedures.

(a)

Investigation and referral.

DOC employees shall immediately refer any cause that might serve as the basis for suspension through the contracting officer to the suspending official.

(b)

Decision-making process.

(1) Procedures shall afford the contractor, and any named affiliates, an opportunity to submit information and argument in opposition to the proposed suspension. This may be done in person, in writing or through a representative.

(2) In actions not based upon an indictment, where the contractor's submission raises a genuine dispute over facts material to the proposed suspension and if no determination has been made, on the basis of Department of Justice advice, that substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced, the following procedures will be followed:

(i) Provide the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses and confront any person the agency presents;

(ii) A transcribed record of the proceeding will be made, unless the agency and contractor mutually agree to waive the requirement for a transcript. This transcribed record is available to the contractor at cost.

(c)

Notice of suspension.

A notice of suspension shall be issued by the suspending official in accordance with FAR 9.407-3(c)(1) through (6).

(d)

Suspending official's decision.

(1) For actions based upon an indictment, when there is no authentic dispute over material facts, in which additional proceedings to determine disputed material facts have been denied on the basis of Department of Justice advice, the suspending official's decision shall be based on all of the information in the administrative record plus any contractor-submitted data.

(2)(i) When necessary, written findings of fact shall be prepared as to the disputed material facts. The suspending official will utilize the information in the written findings of fact, the data submitted by the contractor plus any other information in the administrative record to develop the decision.

(ii) While the suspending official may refer matters involving disputed material facts to another official for findings of fact, the suspending official can disregard any such findings in whole or in part upon a determination that they are clearly erroneous.

(iii) After the conclusion of proceedings with respect to disputed facts, the suspending official will make a decision.

(3) The suspension may be modified or terminated by the suspending official. However such a decision shall be without prejudice to the subsequent imposition of:

(i) Suspension by any other agency; or

(ii) Debarment by any agency.

(4) The suspending official's decision shall be sent to the contractor and any affiliates involved, in writing, by certified mail, return receipt requested.

(e) Procurement counsel shall assist and advise the suspending official at each stage of the decision-making process.

Subpart 1309.5—Organizational and Consultant Conflicts of Interest

1309.503

Waiver.

1309.503-70

Waiver.

(a) The need for a waiver of an organizational conflict of interest (OCI) may be identified by the contracting officer or by a written request submitted by an offeror or contractor. The contracting officer shall review all of the relevant facts and shall refer the matter to the Senior Bureau Procurement Official, who shall make a written recommendation to the Head of Contracting Activity whether a waiver should be granted to allow for a contract award or for continuation of an existing contract.

(b) Criteria for Waiver of OCIs. Issuance of a waiver shall be limited to those situations in which:

(1) The work to be performed under contract is vital to the agency;

(2) There is no party other than the conflicted party that can perform the contract at issue; and

(3) Contractual and/or technical review and supervision methods cannot be employed to mitigate the conflict.

1309.506

Procedures.

The contracting officer shall resolve an actual or potential OCI in a manner consistent with the approval or direction of the designee authorized in CAM 1301.70. If the responsible contracting officer is also the authorized designee in CAM 1301.70, the contracting officer must obtain approval from the Senior Bureau Procurement Official.

1309.507

Solicitation provisions and contract clauses.

1309.507-1

Solicitation provisions.

(a) Insert provision 1352.209-70,

Potential Organizational Conflict of Interest

, substantially as written, in solicitations when the contracting officer determines there is a potential organizational conflict of interest.

(b) Insert the clause with its Alternate I when the contracting officer determines the basic clause should not be modified.

1309.507-2

Contract clauses.

(a) In accordance with FAR 9.507-2, insert clause 1352.209-71,

Limitation of Future Contracting

, substantially as written, when the contractor's eligibility for future prime contract or subcontract awards shall be restricted because of services being provided as stated in FAR 9.505-1 through 9.505-4.

(1) Insert the basic clause when the contractor will be providing systems engineering and/or technical direction. (

See

FAR 9.505-1)

(2) Insert the clause with its Alternate I when the contractor will be preparing specifications or work statements. (

See

FAR 9.505-2)

(3) Insert the clause with its Alternate II when the contractor will be providing technical evaluation or advisory and assistance services. (

See

FAR 9.505-3)

(4) Insert the clause with its Alternate III when the contractor will be obtaining access to proprietary information. (

See

FAR 9.505-4)

(5) Insert the clause with its Alternate IV when the contract is a task order contract. The contracting officer may modify Alternate IV to include a list of systems for which task orders may be issued and indicate which organizational conflict of interest provision in paragraph (a)(2) of this clause shall apply.

(6) Insert the clause with its Alternate V when the contract provides for delivery orders. The contracting officer shall indicate in each delivery order which organizational conflict of interest provision in paragraph (a)(2) of this clause shall apply.

(7) Insert the language in Alternate VI when it is necessary to have the restrictions of this clause included in all or some subcontracts, teaming arrangements, and other agreements calling for performance of work related to the contract.

(b) Insert clause 1352.209-72,

Restrictions against Disclosure

, in service contracts, including architect-engineer contracts, and supply and construction contracts requiring a restriction on the release of information

developed or obtained in connection with performance of the contract.

(c) Insert the clause 1352.209-73,

Compliance with the Laws

, in all solicitations and contracts.

(d) Insert the clause 1352.209-74,

Organizational Conflict of Interest

, in all solicitations and contracts.

(e) Insert clause 1352.209-75,

Title 13 and Non-Disclosure Requirements

, in all solicitations and contracts for services where the contractor will have access to Title 13 data.

PART 1311—DESCRIBING AGENCY NEEDS

Subpart 1311.1—Selecting and Developing Requirements Documents

Sec.

1311.103

Market acceptance.

Subpart 1311.5—Liquidated Damages.

1311.501

Policy.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1311.1—Selecting and Developing Requirements Documents

1311.103

Market acceptance.

The designee authorized as the head of the agency is set forth in CAM 1301.70.

Subpart 1311.5—Liquidated Damages

1311.501

Policy.

The designee authorized as the head of the agency is set forth in CAM 1301.70.

PART 1312—ACQUISITION OF COMMERCIAL ITEMS

Subpart 1312.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items

Sec.

1312.302

Tailoring of provisions and clauses for the acquisition of commercial items.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1312.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items

1312.302

Tailoring of provisions and clauses for the acquisition of commercial items.

The authority for approving a request for waiver to tailor a clause, or otherwise include any additional terms or conditions in a solicitation or contract in a manner that is inconsistent with customary commercial practice, is set forth in CAM 1301.70.

Subchapter C—Contracting Methods and Contract Types

PART 1313—SIMPLIFIED ACQUISITION PROCEDURES

Subpart 1313.1—Procedures

Sec.

1313.106

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

1313.106-2-70

Evaluation of solicitations.

Subpart 1313.2—Actions At or Below the Micro Purchase Threshold

1313.201

General.

Subpart 1313.3—Simplified Acquisitions Methods

1313.301

Governmentwide commercial purchase card.

1313.302

Purchase orders.

1313.302-1-70

Non-commercial purchase orders.

1313.302-3

Obtaining contractor acceptance and modifying purchase orders.

1313.303

Blanket purchase agreements (BPAs).

1313.303-5

Purchases under BPAs.

1313.305

Imprest funds and third party drafts.

1313.305-1

General.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1313.1—Procedures

1313.106

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

1313.106-2-70

Evaluation of solicitations.

All solicitations using simplified acquisition procedures in FAR Part 13 must include provision 1352.213-70,

Evaluation Utilizing Simplified Acquisition Procedures

, or similar language setting out evaluation criteria.

Subpart 1313.2—Actions At or Below the Micro Purchase Threshold

1313.201

General.

DOC employees, other than warranted contracting officers, must be delegated micro-purchase authority by the designee set forth in CAM 1301.70 according to FAR 1.603-3(b), and must be trained pursuant to CAM 1313.301.

Subpart 1313.3—Simplified Acquisitions Methods

1313.301

Governmentwide commercial purchase card.

The Department's procedures for the use and control of the Governmentwide commercial purchase card are set forth in CAM 1313.301.

1313.302

Purchase orders.

1313.302-1-70

Non-commercial purchase orders.

Insert provision 1352.213-71,

Instructions for Submitting Quotations under the Simplified Acquisition Threshold—Non-Commercial

, or similar language in all solicitations for non-commercial purchase orders under the simplified acquisition threshold. The contracting officer shall indicate whether electronic submissions of quotations will be accepted. Paragraph (b)(4) of provision 1352.213-71 may be tailored based on the evaluation factors.

1313.302-3

Obtaining contractor acceptance and modifying purchase orders.

A contractor's written acceptance of a purchase order modification is required, unless the contracting officer determines otherwise.

1313.303

Blanket Purchase Agreements (BPAs).

1313.303-5

Purchases under BPAs.

(a) Individual purchases shall not exceed the simplified acquisition threshold, subject to the following:

(1) The limitations for individual purchases against BPAs established against Federal Supply Schedule contracts shall be those set forth in the terms and conditions of the schedule contract.

(2) The limitations for individual purchases for commercial item acquisitions against BPAs established under FAR Subpart 13.5 “Test Program for Certain Commercial Items” is the simplified acquisition threshold set forth in FAR Subpart 13.5.

1313.305

Imprest funds and third party drafts.

1313.305-1

General.

(a)

Third-Party Drafts.

Third-party drafts are not authorized for use by Department of Commerce agencies.

(b)

Imprest Funds.

The

Imprest Fund Policy Directive

, issued November 9, 1999, by the Department of Treasury, required that all Federal agencies eliminate agency use of imprest funds by October 1, 2001, except where provided under the

Imprest Fund Policy Directive.

Requests for exceptions to the requirements of the Imprest Fund Policy Directive should be addressed to DOC's Director of Financial Management. In the case of an approved exception, DOC's procedures for using imprest funds can be found in the Cash Management Policies and Procedures Handbook, available at the Department of Commerce, Office of Financial Management Web site. A copy of all approved exceptions shall be submitted

to the Senior Bureau Procurement Official.

PART 1314—SEALED BIDDING

Subpart 1314.2—Solicitation of Bids

Sec.

1314.201

Preparation of invitation for bids.

1314.201-7

Contract clauses.

Subpart 1314.4—Opening of Bids and Awards of Contracts.

1314.404

Rejection of bids.

1314.404-1

Cancellation of invitations after opening.

1314.407

Mistakes in bids.

1314.407-3

Other mistakes disclosed before award.

1314.409

Information to bidders.

1314.409-1

Award of unclassified contracts.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1314.2—Solicitation of Bids

1314.201

Preparation of invitation for bids.

1314.201-7

Contract clauses.

The designee authorized to waive the requirement for inclusion of FAR clause 52.214-27 “Price Reduction for Defective Cost and Pricing Data—Modifications—Sealed Bidding” in a contract with a foreign government or agency of that government is set forth in CAM 1301.70.

Subpart 1314.4—Opening of Bids and Awards of Contracts

1314.404

Rejection of bids.

1314.404-1

Cancellation of invitations after opening.

The designee authorized to make the determinations prescribed in FAR 14.401-1(c) and (f) are set forth in CAM 1301.70.

1314.407

Mistakes in bids.

1314.407-3

Other mistakes disclosed before award.

The designee authorized to make the determinations prescribed in FAR 14.407-3(a), (b), (c) and (d) is set forth in CAM 1301.70. Concurrence of Procurement Counsel shall be obtained before issuance of any determination under this section.

1314.409

Information to bidders.

1314.409-1

Award of unclassified contracts.

Requests for records shall be governed by the procedures outlined in DAO 205-14 and 15 CFR Part 4.

PART 1315—CONTRACTING BY NEGOTIATION

Subpart 1315.2—Solicitation and Receipt of Proposals and Information.

Sec.

1315.204

Contract format.

1315.204-570

Part IV representations and instructions.

1315.209

Solicitation provisions and contract clauses.

Subpart 1315.3—Source Selection.

1315.303

Responsibilities.

1315.305

Proposal evaluation.

Subpart 1315.4—Contract Pricing.

1315.407

Special cost or pricing areas.

1315.407-4

Should-cost review.

Subpart 1315.6—Unsolicited Proposals.

1315.602

Policy.

1315.603

General.

1315.604

Agency points of contact.

1315.606

Agency procedures.

1615.606-2

Evaluation.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1315.2—Solicitation and Receipt of Proposals and Information

1315.204

Contract format.

The designee authorized to grant exemptions from the uniform contract format is set forth in CAM 1301.70.

1315.204-570

Part IV representations and instructions.

(a)

Section L, Instructions, conditions, and notices to offerors or respondents.

(1) The contracting officer shall insert the provision 1352.215-70,

Proposal Preparation

, in all solicitations. Contracting officers should tailor the provision to best meet the Government's needs. Information requested from offerors in Volume II-Technical Proposal, must correspond to the evaluation factors. Contracting officers should not request information that will not be evaluated in accord with the stated technical evaluation factors. Should electronic submission be allowed by the CO, specific instructions must be added.

(2) Insert a provision similar to 1352.215-71,

Instructions for Oral Presentations,

in solicitations when oral presentations will be used. Contracting officers shall tailor the provision to suit their acquisition.

(3) The contracting officer shall insert the provision 1352.215-72,

Inquiries,

in solicitations as determined by the CO. This provision may be modified to satisfy the needs of specific procurements.

(b)

Section M, Evaluation factors for award.

(1) The contracting officer shall insert provision 1352.215-73,

Evaluation Quantities—Indefinite Quantity Contract,

in solicitations for indefinite quantity and requirements contracts, as appropriate. This provision may be modified to satisfy the needs of specific procurements.

(2) The contracting officer shall insert the provision similar to 1352.215-74,

Best Value Evaluation,

for competitive, best value procurements, tailoring the language as appropriate. If clause 1352.215-74,

Best Value Evaluation,

is used, then clause 1352.215-75

Evaluation Criteria,

must be used.

(3) The contracting officer shall insert a provision in all solicitations similar to 1352.215-75,

Evaluation Criteria,

to specify evaluation criteria, tailoring the language as appropriate. If the basis for award is lowest price technically acceptable, this must be stated.

(4) The contracting officer shall insert provision 1352.215-76,

Cost or Pricing Data,

in all solicitations when cost or pricing data is required under FAR subpart 15.4.

1315.209

Solicitation provisions and contract clauses.

The designee authorized to waive the examination of records by the Comptroller General is set forth in CAM 1301.70.

Subpart 1315.3—Source Selection

1315.303

Responsibilities.

The contracting officer is designated as the source selection authority for competitive negotiated acquisitions of less than $10,000,000. The source selection authority for large dollar competitive negotiated acquisitions of $10,000,000 or more is the head of the operating unit. The head of the operating unit may re-delegate the authority to a Department manager who is at an organizational level above the contracting officer and who has sufficient rank and professional experience to effectively carry out the functions of a source selection authority.

1315.305

Proposal evaluation.

At the discretion of the contracting officer, cost information may be provided to members of the technical evaluation team.

Subpart 1315.4—Contract Pricing

1315.407

Special cost or pricing areas.

1315.407-4

Should-cost review.

The should-cost review report shall include all elements listed in FAR 15.407-4(a)(1) and be provided to the contracting officer for use in negotiations.

Subpart 1315.6—Unsolicited Proposals

1315.602

Policy.

In accord with FAR 16.602, the DOC encourages the submission of new and innovative ideas which support the DOC mission.

1315.603

General.

DOC will accept for review and consideration unsolicited proposals from any entity. DOC will not pay any costs associated with the preparation of unsolicited proposals. Proposals which do not meet the definition and applicable content and marking requirements of FAR 15.6 will not be considered under any circumstances and will be returned to the submitter. Unsolicited proposals may not be submitted electronically.

1315.604

Agency points of contact.

(a) Unsolicited proposals are to be submitted to the appropriate DOC contracting office. Any person or entity considering the submission of an unsolicited proposal should first determine, based on the subject matter of the proposal, to which DOC operating unit the proposal applies. Proposers should contact the applicable operating unit contracting office to determine procedures for submission and to whom to send the proposal.

(b) Program offices must immediately transmit any unsolicited proposals sent to them to their contracting office. If there is a question concerning which operating unit should evaluate an unsolicited proposal, the contracting office shall identify the proper office, in coordination with the Office of Acquisition Management, if necessary, and transmit the proposal to the applicable contracting office.

1315.606

Agency procedures.

(a) The operating unit contracting office is designated as the point of contact for receipt of unsolicited proposals. Persons within DOC (

e.g.

technical personnel) who receive unsolicited proposals shall forward all documents to their cognizant contracting office.

(b) Within ten working days after receipt by the contracting office of an unsolicited proposal, the contracting office shall review the proposal and determine whether the proposal meets the content and marking requirements of FAR 15.6. If the proposal does not meet these requirements, it shall be returned to the submitter, giving the reasons for noncompliance.

1315.606-2

Evaluation.

(a) If the contracting officer determines, upon initial review, that the unsolicited proposal meets all criteria in FAR 15.606-1, the contracting officer will acknowledge receipt of the proposal, coordinate evaluation with the program office, and provide to the submitter an estimated date that evaluation of the proposal is expected to be completed. The contracting officer shall transmit the proposal to the program office for evaluation, marking it in accord with FAR 15.609(d). If the estimated date for completion of the evaluation cannot be met, the submitter should be informed in a timely manner and provided with a revised evaluation completion date.

(b) The evaluating office shall not reproduce or disseminate the proposal to other offices without the consent of the contracting officer. If the evaluating office requires additional information from the proposer, the evaluator shall request the information through the contracting officer, who will contact the proposer. The evaluator shall not communicate directly with the proposer.

(c) Evaluators shall notify the contracting officer of their recommendations when the evaluation is complete. Following evaluation, the contracting officer shall proceed in accord with FAR 15.607.

PART 1316—TYPES OF CONTRACTS

Subpart 1316.1—Selecting Contract Types

Sec.

1316.103

Negotiating contract type.

1316.103-70

Identifying contract type.

Subpart 1316.2—Fixed Price Contracts

1316.203

Fixed price contracts with economic price adjustment.

1316.203-4

Contract clauses.

1316.206

Fixed-ceiling-price contracts with retroactive price redetermination.

1316.206-3

Limitations.

Subpart 1316.3—Cost-Reimbursement Contracts

1316.307

Contract clauses.

Subpart 1316.4—Incentive Contracts

1316.405

Cost-reimbursement incentive contracts.

1316.405-2

Cost-plus-award-fee contracts.

1316.406

Contract clauses.

Subpart 1316.5—Indefinite Delivery Contracts

1316.501-2-70

Task orders.

1316.505

Ordering.

1316.506

Solicitation provisions and contract clauses.

Subpart 1316.6—Time-and-Materials, Labor-Hour, and Letter Contracts

1316.601

Time-and-materials contracts.

1316.601-70

Contract clauses.

1316.602

Labor-hour contracts.

1316.602-70

Contract clauses.

1316.603

Letter contracts.

1316.603-2

Application.

1316.603-3

Limitations.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1316.1—Selecting Contract Types

1316.103

Negotiating contract type.

1316.103-70

Identifying contract type.

The type of contract shall be stated in each contract awarded.

Subpart 1316.2—Fixed-Price Contracts

1316.203

Fixed-price contracts with economic price adjustment.

1316.203-4

Contract clauses.

Contracting officers shall use an economic price adjustment clause based on cost indexes of labor or material after obtaining approval for use of the clause from the head of the contracting office.

1316.206

Fixed-ceiling-price contract with retroactive price redetermination.

1316.206-3

Limitations.

The designee authorized to approve use of fixed-ceiling-price contracts with retroactive price redetermination is set forth in CAM 1301.70.

Subpart 1316.3—Cost-Reimbursement Contracts

1316.307

Contract clauses.

(a) Insert a clause that is substantially the same as 1352.216-70,

Estimated and Allowable Costs,

in all cost-reimbursement contracts.

(b) Insert a clause similar to 1352.216-71,

Level of Effort (Cost-Plus-Fixed-Fee, Term Contract),

in Cost-Plus-Fixed-Fee, Level of Effort contracts.

Subpart 1316.4—Incentive Contracts

1316.405

Cost-reimbursement incentive contracts.

1316.405-2

Cost-plus-award-fee contracts.

Insert clause 1352.216-72,

Determination of Award Fee,

in all cost-plus-award-fee contracts.

1316.406

Contract clauses.

Insert a clause substantially the same as 1352.216-73,

Distribution of Award Fee,

in all cost-plus-award-fee solicitations and contracts, as determined by the contracting officer.

Subpart 1316.5—Indefinite-Delivery Contracts

1316.501-2-70

Task orders.

Insert clause 1352.216-74,

Task Orders,

or a substantially similar clause in task order solicitations and contracts, making changes, as appropriate.

Contracting officers are encouraged to make appropriate modifications to the time requirements and procedures to meet the Government's needs.

1316.505

Ordering.

The department's Task and Delivery Order Ombudsman is designated in CAM 1301.70.

1316.506

Solicitation provisions and contract clauses.

(a) Insert clause 1352.216-75,

Minimum and Maximum Contract Amounts,

in all indefinite quantity contracts, including requirements contracts, if feasible.

(b) Insert a clause similar to 1352.216-76,

Placement of Orders,

in indefinite-delivery solicitations and contracts.

Subpart 1316.6—Time-and-Materials, Labor-Hour, and Letter Contracts

1316.601

Time-and-materials contracts.

The designee authorized to approve a time-and-materials contract prior to the execution of the base period when the base period plus any option periods exceeds three years is set forth in CAM 1301.70.

1316.601-70

Contract clauses.

Insert clause 1352.216-77,

Ceiling Price,

in all time-and-materials contracts.

1316.602

Labor-hour contracts.

1316.602-70

Contract clauses.

Insert clause 1352.216-77,

Ceiling Price,

in all labor-hour contracts, including, if feasible, requirements contracts.

1316.603

Letter contracts.

1316.603-2

Application.

(a) With the written approval from the authorized designee in CAM 1301.70, in extreme cases, the contracting officer may authorize an additional period for contract definitization.

(b) If, after exhausting all reasonable efforts, the contracting officer and the contractor cannot negotiate a definitive contract because of failure to reach agreement as to price or fee, the contracting officer may determine a reasonable price or fee with approval from the authority designated in CAM 1301.70.

1316.603-3

Limitations.

The designee authorized to determine that a letter contract is suitable so that work can begin immediately is set forth in CAM 1301.70.

PART 1317—SPECIAL CONTRACTING METHODS

Subpart 1317.1—Multi-Year Contracting

Sec.

1317.104

General.

1317.105

Policy.

1317.105-1

Uses.

1317.108

Congressional notification.

Subpart 1317.2—Options

1317.203

Solicitations.

Subpart 1317.5—Interagency Acquisitions under the Economy Act

1317.502

General.

1317.502-70

Policy.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1317.1—Multi-Year Contracting

1317.104

General.

The designee authorized to modify requirements of FAR Subpart 17.1 and FAR 52.217-2 is set forth in CAM 1301.70.

1317.105

Policy.

1317.105-1

Uses.

The designee authorized to make the determination to enter into a multi-year contract is set forth in CAM 1301.70.

1317.108

Congressional notification.

Written notification to Congress shall be handled in accordance with the policies and procedures outlined in DAO 218-2.

Subpart 1317.2—Options

1317.203

Solicitations.

The designee authorized to limit option quantities for additional supplies greater than 50 percent of the initial quantity of the same contract line item is set forth in CAM 1301.70.

Subpart 1317.5—Interagency Acquisitions under the Economy Act

1317.502

General.

1317.502-70

Policy.

All Interagency Acquisitions shall adhere to the policy set forth in CAM 1317.570.

PART 1318—EMERGENCY ACQUISITIONS

Subpart 318.2—Emergency Acquisitions Flexibilities

Sec.

1318.201

Contingency operation.

1318.202

Defense or recovery from certain attacks.

1318.270

Emergency acquisition flexibilities.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1318.2—Emergency Acquisition Flexibilities

1318.201

Contingency operation.

The designee authorized to serve as the Head of the Agency under FAR 18.201(b) and (c) is set forth in CAM 1301.70.

1318.202

Defense or recovery from certain attacks.

The designee authorized to serve as the Head of the Agency under FAR 18.202(a), (b) and (c) is set forth in CAM 1301.70.

1318.270

Emergency acquisition flexibilities.

(a)

Authorizing Emergency Acquisition Flexibilities.

The process for authorizing the use of emergency procurement flexibilities within the Department of Commerce may vary depending on the nature and type of the emergency situation. However, generally, if a Senior Bureau Procurement Official (BPO) determines that emergency acquisition flexibilities are required to meet contracting needs during an emergency situation, the BPO must obtain the Senior Procurement Executive's concurrence. In the event that increased warrant authority is needed, the BPO should contact the Senior Procurement Executive.

(b)

Continuity of Operations Plan.

Each Contracting Activity shall have an updated Continuity of Operations Plan, in place designating emergency personnel with warrant levels.

(c)

Management Controls.

Senior BPOs must take affirmative steps to ensure that emergency flexibilities are used solely for requirements that have a clear and direct relationship to the emergency situation, and that appropriate management controls are established and maintained to support the use of the increased thresholds. The Office of Acquisition Management will conduct periodic reviews of transactions made pursuant to the expanded authorities to evaluate whether the transactions:

(1) Were in support of the emergency situation;

(2) Were made by an authorized individual;

(3) Were appropriately documented; and

(4) Provided the maximum practicable opportunity for small business participation.

Subchapter D—Socioeconomic Programs

PART 1319—SMALL BUSINESS PROGRAMS

Subpart 1319.2—Policies

Sec.

1319.201

General policy.

1319.202

Specific policies.

1319.202-70

Small business set-aside review form.

Subpart 1319.5—Set-Asides For Small Business

1319.502

Setting aside acquisitions.

1319.502-3

Partial set-asides.

1319.505

Rejecting Small Business Administration recommendations.

Subpart 1319.6—Certificates of Competency and Determination of Responsibility

1319.602

Procedures.

1319.602-1

Referral.

Subpart 1319.7—The Small Business Subcontracting Program

1319.705

Responsibilities of the contracting officer under the subcontracting assistance program.

1319.705-4

Reviewing the subcontracting plan.

Subpart 1319.8—Contracting with the Small Business Administration (the 8(a) Program)

1319.800

General.

1319.811

Preparing the contracts.

1319.811-3

Contract clauses.

1319.812

Contract administration.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1319.2-Policies

1319.201

General policy.

(a) The DOC Office of Small and Disadvantaged Business Utilization (OSDBU) is headed by a Director who shall report and be responsible to the Deputy Secretary on matters of policy and legislative requirements.

(b) Each Contracting Office shall appoint Small Business Specialists to assist the HCA in effectively implementing the small business programs, including achieving program goals.

1319.202

Specific policies.

Procurement actions valued above $100,000 will be reviewed by the Director, OSDBU, or designee for the purpose of making recommendations for solicitation/award under FAR Part 19.

1319.202-70

Small business set-aside review form.

Form CD 570, Small Business Set-Aside Review, shall be submitted for approval to the Operating Unit Counsel Small Business Specialist, and forwarded to the OSDBU for approval. If applicable, the Form CD 570 will be submitted to the SBA Procurement Center Representative (PCR) for review. The Form CD 570 is required for:

(a) Procurement actions valued above $100,000;

(b) Modifications to existing contracts that add new work valued over $550,000 or that increase the total contract cost to over $550,000;

(c) Consolidation of two or more procurement requirements for goods and services.

Subpart 1319.5—Set-Asides for Small Business

1319.502

Setting aside acquisitions.

1319.502-3

Partial set-asides.

A partial set-aside shall not be made if there is a reasonable expectation that only two capable concerns (one large and one small) will respond with offers unless the set-aside is authorized by the designee set forth in CAM 1301.70.

1319.505

Rejecting Small Business Administration recommendations.

(a) The designee authorized to render a decision on the Small Business Administration's appeal of the contracting officer's decision is set forth in CAM 1301.70.

(b) In response to SBA's appeal to the agency head, the designee authorized in CAM 1301.70 shall forward justification for their decision to the agency head.

(c) The designee authorized in CAM 1301.70 shall reply to the SBA within 30 working days after receiving the appeal. The decision of the designee shall be final.

Subpart 1319.6—Certificates of Competency and Determination of Responsibility

1319.602

Procedures.

1319.602-1

Referral.

When the contracting officer determines that the successful small business offeror lacks certain elements of responsibility, the contracting officer will withhold award and refer the matter to the cognizant Small Business Administration Government Contracting Area Office. A copy of the referral shall be provided to the Director of the OSDBU.

Subpart 1319.7—The Small Business Subcontracting Program

1319.705

Responsibilities of the contracting officer under the subcontracting assistance program.

1319.705-4

Reviewing the subcontracting plan.

The prime contractor's proposed subcontracting plan shall be reviewed by the contracting officer for adequacy, ensuring that the required information, goals, and assurances are included. The contracting officer may obtain advice and recommendations from the SBA procurement center representative, the contracting activity's small business specialist and the DOC OSDBU. The CO shall give the reviewers sufficient time and information to review the plan and ask questions.

Subpart 1319.8—Contracting with the Small Business Administration (the 8(a) Program)

1319.800

General.

(a) By Partnership Agreement between the Small Business Administration (SBA) and the Department of Commerce, the SBA delegated authority to the Senior Procurement Executive to enter into 8(a) prime contracts and purchase orders. To implement this authority, the Senior Procurement Executive has authorized a class FAR deviation to applicable portions of FAR Subpart 19.8 and FAR Part 52. Under the class deviation, the authority to enter into 8(a) prime contracts and purchase orders is re-delegated to contracting officers.

(b) When awarding 8(a) contracts and purchase orders, contracting officers shall operate in accordance with the terms of the Partnership Agreement and take full advantage of the streamlined procedures in the agreement. Contracting officers shall review the responsibilities and procedures for 8(a) awards as outlined in the Partnership Agreement and work closely with their respective Small Business Specialists and the OSDBU.

(c) The Partnership Agreement contains the procedures for submitting an offer letter to the appropriate SBA office. Contracting officers shall provide a copy of all offering letters to the OSDBU when they are transmitted to SBA.

1319.811

Preparing the contracts.

1319.811-3

Contract clauses.

(a) The contracting officer shall insert the clause 1352.219-70,

Section 8(a) Direct Award (Deviation),

in direct contracts and purchase orders processed under the Partnership Agreement. The clauses at FAR 52.219-11, Special 8(a) Contract Conditions, 52.219-12, Special 8(a) Subcontract Conditions, and 52.219-17, Section 8(a) Award,

shall not be used.

(b) The contracting officer shall insert the clause 1352.219-71,

Notification to Delay Performance (Deviation),

in solicitations and purchase orders issued under the Partnership Agreement.

(c) The contracting officer shall insert the clause 1352.219-72,

Notification of Competition Limited to Eligible 8(a) Concerns, Alternate III (Deviation),

when the acquisition is processed under the Partnership Agreement.

1319.812

Contract administration.

Awards under the Partnership Agreement are subject to 15 U.S.C. 637(a)(21). These contracts shall contain the clause 1352.219-70,

Section 8(a) Direct Award (Deviation),

which requires the contractor to notify the SBA and the contracting officer when ownership of the firm is being transferred.

PART 1322—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Subpart 1322.1—Basic Labor Policies

Sec.

1322.101

Labor relations.

1322.101-1

General.

1322.101-3

Reporting labor disputes.

1322.101-4

Removal of items from contractor's facilities affected by work stoppages.

1322.103

Overtime.

1322.103-4

Approvals.

Subpart 1322.3—Contract Work Hours and Safety Standards Act

1322.302

Liquidated damages and overtime pay.

Subpart 1322.4—Labor Standards for Contracts Involving Construction

1322.404

Davis-Bacon Act wage determination.

1322.404-6

Modification of wage determination.

1322.406

Administration and enforcement.

1322.406-8

Investigations.

Subpart 1322.6—Walsh-Healey Public Contracts Act

1322.604

Exemptions.

1322.604-2

Regulatory exemptions.

Subpart 1322.8—Equal Employment Opportunity

1322.805

Procedures.

1322.807

Exemptions.

Subpart 1322.10—Service Contract Act of 1965, as amended

1322.1001

Definitions.

Subpart 1322.13—Special Disabled Veterans of the Vietnam Era, and Other Eligible Veterans

1322.1305

Waivers.

Subpart 1322.14—Employment of Workers with Disabilities

1322.1403

Waivers.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1322.1—Basic Labor Policies

1322.101

Labor relations.

1322.101-1

General.

The designee authorized to designate programs or requirements for contractors notifying the Government of actual or potential labor disputes is set forth in CAM 1301.70.

1322.101-3

Reporting labor disputes.

(a) The designee authorized to report any potential or actual labor disputes that may interfere with performing any contracts under its cognizance is designated in CAM 1301.70

(b) The contracting officer shall seek legal advice and assistance from Procurement Counsel when a potential or actual labor dispute that may interfere with the contract performance occurs.

1322.101-4

Removal of items from contractors' facilities affected by work stoppages.

The contracting officer shall obtain approval from the head of the contracting office and seek legal advice before initiating any action in accordance with FAR 22.101-4.

1322.103

Overtime.

1322.103-4

Approvals.

Approval of use of overtime may be granted by the approving official as set forth in CAM 1301.70.

Subpart 1322.3—Contract Work Hours and Safety Standards Act

1322.302

Liquidated damages and overtime pay.

The designee authorized to find that the administratively determined liquidated damages due under FAR 22.302(a) are incorrect or that the contractor or subcontractor inadvertently violated the Contract Work Hours and Safety Standards Act is set forth in CAM 1301.70.

Subpart 1322.4—Labor Standards for Contracts Involving Construction

1322.404

Davis-Bacon Act wage determination.

1322.404-6

Modification of wage determination.

The designee authorized to request an extension beyond 90 days after bid opening from the Department of Labor Administrator, Wage and Hour Division is set forth in CAM 1301.70.

1322.406

Administration and enforcement.

1322.406-8

Investigations.

The designee authorized to process a contracting officer's report on labor standards investigations is set forth in CAM 1301.70.

Subpart 1322.6—Walsh-Healey Public Contracts Act

1322.604

Exemptions.

1322.604-2

Regulatory exemptions.

The designee authorized to request that the Secretary of Labor exempt a contract or class of contracts from Walsh-Healey Act stipulations is set forth in CAM 1301.70.

Subpart 1322.8—Equal Employment Opportunity

1322.805

Procedures.

The designee authorized to approve award without pre-award clearance is set forth in CAM 1301.70.

1322.807

Exemptions.

The designee authorized to exempt a contract from all or part of Executive Order 11246 for national security purposes is set forth in CAM 1301.70.

Subpart 1322.10—Service Contract Act of 1965, as Amended

1322.1001

Definitions.

The DOC labor advisor is the Assistant General Counsel for Administration/Employment & Labor Law Division.

Subpart 1322.13—Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans

1322.1305

Waivers.

(a) The designee authorized to waive any requirement in FAR 22.13 if it is determined that the contract is essential to national security is set forth in CAM 1301.70.

(b) The contracting officer must submit requests for waivers to the designee authorized under 1322.1305 (a). The request shall include a justification for the waiver and be available in electronic format.

Subpart 1322.14—Employment of Workers with Disabilities

1322.1403

Waivers.

(a) The designee authorized to waive any or all terms of the clause at FAR 52.222-36 is set forth in CAM 1301.70.

(b) The designee authorized, with the concurrence of the Deputy Assistant Secretary of Labor, to waive any requirement of FAR Subpart 22.14 when it is determined that the contract is essential to the national security, is set forth in CAM 1301.70.

(c) The contracting officer must submit requests for waivers to the

designee authorized under 48 CFR 1322.1403 (a) and (b). The request shall include a justification for the waiver and be available in electronic format.

PART 1323—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 1323.2—Energy and Water Efficiency and Renewable Energy

Sec.

1323.204

Procurement exemptions.

Subpart 1323.4—Use of Recovered Materials

1323.404

Agency affirmative procurement programs.

1323.404-70

DOC affirmative procurement program.

Subpart 1323.5—Drug-Free Workplace

1323.506

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

Subpart 1323.7—Contracting for Environmentally Preferable and Energy Efficient Products and Services

1323.705

Electronic products environmental assessment tool.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1323.2—Energy and Water Efficiency and Renewable Energy

1323.204

Procurement exemptions.

The designee authorized to exempt the procurement of an ENERGY STAR or Federal Energy Management Program (FEMP)-designated product as described in FAR 23.203 is set forth in CAM 1301.70.

Subpart 1323.4—Use of Recovered Materials

1323.404

Agency affirmative procurement programs.

1323.404-70

DOC affirmative procurement program.

The Department of Commerce's affirmative procurement program is described in CAM 1323.70.

Subpart 1323.5—Drug-Free Workplace

1323.506

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

The designee authorized to waive a determination to suspend contract payments, terminate a contract for default, or debar or suspend a contractor for Drug-Free Workplace violations, is set forth in CAM 1301.70. This authority may not be delegated.

Subpart 1323.7—Contracting for Environmentally Preferable and Energy-Efficient Products and Services

1323.705

Electronic products environmental assessment tool.

The procedures for granting exceptions to the requirement in FAR 23.705 are set forth in CAM 1323.70

PART 1324—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Subpart 1324.1—Protection of Individual Privacy

Sec.

1324.103

Procedures.

Subpart 1324.2—Freedom of Information Act

1324.203

Policy.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1324.1—Protection of Individual Privacy

1324.103

Procedures.

DOC rules implementing the Privacy Act of 1974 are described in 15 CFR Part 4.

Subpart 1324.2—Freedom of Information Act

1324.203

Policy.

DOC's implementation of the Freedom of Information Act is described in 15 CFR Part 4 and DAO 205-14.

PART 1325—FOREIGN ACQUISITION

Subpart 1325.1—Buy American Act—Supplies

Sec.

1325.103

Exceptions.

1325.105

Determining reasonableness of cost.

Subpart 1325.2—Buy American Act—Construction Materials

1325.204

Evaluating offers of foreign construction material.

Subpart 1325.10—Additional Foreign Acquisition Regulations

1325.1001

Waiver of right to examination of records.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1325.1—Buy American Act—Supplies

1325.103

Exceptions.

(a) The designee authorized to make a determination that domestic preference would be inconsistent with the public interest in a case where the DOC has an agreement with a foreign government providing a blanket exception to the Buy America Act is set forth in CAM 1301.70.

(b)(1) The contracting officer shall submit documentation supporting a nonavailability determination to the DOC's representative to the Civilian Agency Acquisition Council (CAAC). The DOC representative shall forward the documentation to the CAAC for possible removal of the product from the product nonavailablity list at FAR 25.104.

(2) The contracting officer shall submit documentation supporting a determination that nonavailabilty of an article is likely to affect future acquisitions to the DOC's representative to the CAAC for possible addition to the product nonavailability list at FAR 25.104.

1325.105

Determining reasonableness of cost.

The designee authorized to make a written determination that the use of higher evaluation factors than those in FAR 25.105(b) is appropriate is set forth in CAM 1301.70.

Subpart 1325.2—Buy American Act—Construction Materials

1325.204

Evaluating offers of foreign construction material.

The designee authorized to specify a percentage higher than the 6 percent that the contracting officer must add to the cost of any foreign construction material proposed for exception from the requirements of the Buy America Act is set forth in CAM 1301.70.

Subpart 1325.10—Additional Foreign Acquisition Regulations

1325.1001

Waiver of right to examination of records.

The designee authorized to execute a determination and findings in accordance with FAR 25.1001(a)(2)(iii) set forth in CAM 1301.70.

PART 1326—OTHER SOCIOECONOMIC PROGRAMS

Subpart 1326.2—Disaster or Emergency Assistance Activities

Sec.

1326.203

Transition of work.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1326.2—Disaster or Emergency Assistance Activities

1326.203

Transition of work.

The designee authorized to determine that transitioning response, relief, and/or reconstruction activity to a local firm, or firms, is not feasible or practicable is set forth in CAM 1301.70.

Subchapter E—General Contracting Requirements

PART 1327—PATENTS, DATA, AND COPYRIGHTS

Subpart 1327.2—Patents and Copyrights

Sec.

1327.201

Patent and copyright infringement liability.

1327.201-2

Contract clauses.

Subpart 1327.3—Patent Rights under Government Contracts

1327.303

Contract clauses.

1327.304

Procedures.

1327.304-4

Appeals.

1327.305

Administration of patent rights clauses.

1327.305-2

Administration by the Government.

Subpart 1327.4—Rights in Data and Copyrights

1327.404

Basic rights in data clause.

1327.404-4

Contractor's release, publication, and use of data.

1327.404-5

Unauthorized, omitted, or incorrect markings.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1327.2—Patents and Copyrights.

1327.201

Patent and copyright infringement liability.

1327.201-2

Contract clauses.

The designee authorized to approve the insertion of clause 52.227-5,

Waiver of Indemnity,

in solicitations and contracts is set forth in CAM 1301.70.

Subpart 1327.3—Patent Rights under Government Contracts

1327.303

Contract clauses.

(a) The designee authorized to determine, at contract award, that it would be in the national interest to sublicense foreign governments or international organizations pursuant to any existing or future treaty or agreement is set forth in CAM 1301.70.

(b) The designee authorized to determine that restriction or elimination of the right to retain title to any subject invention will better promote the policy and objectives of chapter 18 of title 35 of the United States Code is set forth in CAM 1301.70.

(c) The designee authorized to determine, at contract award, that it would be in the national interest to sublicense foreign governments or international organizations pursuant to any existing or future treaty or agreement is set forth in CAM 1301.70.

1327.304

Procedures.

1327.304-4

Appeals.

The designee authorized to provide the contractor with a written statement of the basis for taking the actions described in FAR 27.304-5(a) is set forth in CAM 1301.70.

1327.305

Administration of patent rights clauses.

1327.305-2

Administration by the Government.

The contracting officer shall promptly furnish all invention disclosures, reports, confirmatory instruments, notices, requests, and other documents and information relating to patent rights clauses to the DOC Patent Attorney.

Subpart 1327.4—Rights in Data and Copyrights

1327.404

Basic rights in data clause.

1327.404-4

Contractor's release, publication, and use of data.

(a) Insert clause 1352.227-70

, Rights in Data, Assignment of Copyright,

in all solicitations and contracts if FAR Clause 52.227-17 has been used in the solicitation or contract and the contracting officer wants the contractor to assign copyright to the Government.

(b) In appropriate cases, the contracting officer may place limitations or restrictions on the contractor's exercise of its rights in data first produced in the performance of the contract, including a requirement to assign copyright to the Government or another party

1327.404-5

Unauthorized, omitted, or incorrect markings.

The designee authorized to concur with the contracting officer's determination that markings are not authorized is set forth in CAM 1301.70.

PART 1328—BONDS AND INSURANCE

Subpart 1328.1—Bonds and Other Financial Protections

Sec.

1328.101

Bid guarantees.

1328.101-1

Policy on use.

1328.105

Other types of bonds.

1328.106

Administration.

1328.106-2

Substitution of surety bonds.

1328.106-6

Furnishing information.

Subpart 1328.2—Sureties and Other Security for Bonds.

1328.203

Acceptability of individual sureties.

1328.203-7

Exclusion of individual sureties.

Subpart 1328.3—Insurance

1328.305

Overseas workers' compensation and war-hazard insurance.

1328.310

Contract clause for work on a Government installation.

1328.310-70

Solicitation provisions and contract clauses.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1328.1—Bonds and Other Financial Protections

1328.101

Bid guarantees.

1328.101-1

Policy on use.

The designee authorized to make a class waiver for the requirement to obtain a bid guarantee when a performance bond or a performance and payment bond is required is set forth in CAM 1301.70.

1328.105

Other types of bonds.

The designee authorized to approve using other types of bonds in connection with acquiring particular supplies or services is set forth in CAM 1301.70.

1328.106

Administration.

1328.106-2

Substitution of surety bonds.

The designee authorized to approve substituting a new surety bond for the previously approved original bond is set forth in CAM 1301.70.

1328.106-6

Furnishing information.

When a payment bond has been provided for a contract, the designee authorized to furnish a certified copy of the bond and the contract to any person who makes a proper request is set forth in CAM 1301.70.

Subpart 1328.2—Sureties and Other Security for Bonds

1328.203

Acceptability of individual sureties.

(a) Contracting officers shall obtain the opinion of the Procurement Counsel as to the adequacy of the documents pledging the assets of an individual surety prior to accepting bid guarantee and payment and performance bonds.

(b) Evidence of possible criminal or fraudulent activities by an individual surety shall be referred to the DOC Office of Inspector General. Policies and procedures for the initiation and conduct of investigations by the Office of Inspector General are prescribed in DAO 207-10,

Inspector General Investigations.

1328.203-7

Exclusion of individual sureties.

The designee authorized to exclude an individual from acting as a surety on bonds submitted by offerors on procurements by the executive branch of the Federal Government is set forth in CAM 1301.70.

Subpart 1328.3—Insurance

1328.305

Overseas workers' compensation and war-hazard insurance.

The designee authorized to recommend a waiver to the Secretary of Labor is set forth in CAM 1301.70.

1328.310

Contract clause for work on a Government installation.

1328.310-70

Solicitation provisions and contract clauses.

(a) Insert clause 1352.228-70,

Insurance Coverage,

in all contracts when:

(1) Government property is involved;

(2) The contract amount is expected to be over the simplified acquisition threshold, and

(3) The contract will require work on a Government installation.

(b)(1) The clause is not required in fixed-price solicitations and contracts if:

(i) Only a small amount of work is required on the Government installation (

e.g.,

a few brief visits per month); or

(ii) All the work on the Government installation is to be performed outside the United States, its possessions and Puerto Rico.

(2) The contracting officer may increase the dollar limits established in the clause when it is determined to be in the best interest of the Government. Prior to increasing the dollar limits the contracting officer shall seek the advice of Procurement Counsel.

(c) Insert clause 1352.228-71,

Deductibles Under Required Insurance Coverage—Cost-Reimbursement,

in all cost-reimbursement contracts when the clause at 1352.228-70,

Insurance Coverage,

is used.

(d) Insert clause 1352.228-72,

Deductibles Under Required Insurance Coverage—Fixed Pri

ce, in all fixed-price contracts when the clause at 1352.228-70,

Insurance Coverage,

is used.

(e) Insert clauses 1352.228-73 through 1352.228-75, unless otherwise indicated by the specific instructions for their use below, in any contract for the lease of aircraft.

(f) Insert clause 1252.228-73,

Loss of or Damage to Leased Aircraft,

in any contract for the lease of aircraft, except in the following circumstances:

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

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

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

(g) Insert clause 1352.228-74,

Fair Market Value of Aircraft,

in all aircraft lease/rentals.

(h) The contracting officer shall insert the clause at 1352.228-75,

Risk and Indemnities,

in any contract for the lease of aircraft when the Government will have exclusive use of the aircraft for a period of less than thirty days.

(i) Insert clause 1352.228-76,

Approval of Group Insurance Plans,

in all cost reimbursable contracts.

(j) The contractor shall submit the plan to the CO for approval under cost-reimbursement contracts, before buying insurance under a group insurance plan. Any change in benefits provided under an approved plan that can reasonably be expected to increase significantly the cost to the Government shall require similar approval.

PART 1329—TAXES

Subpart 1329.1—General

Sec.

1329.101

Resolving tax problems.

Subpart 1329.2—Federal Excise Taxes.

1329.203

Other Federal tax exemptions.

1329.203-70

DOC Federal tax exemption.

Subpart 1329.3—State and Local Taxes

1329.303

Application of State and local taxes to government contractors and subcontractors.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1329.1—General

1329.101

Resolving tax problems.

Legal questions relating to tax issues should be referred to the Procurement Counsel.

Subpart 1329.2—Federal Excise Taxes

1329.203

Other Federal tax exemptions.

1329.203-70

DOC Federal tax exemption.

(a) The Office of Acquisition Management has obtained a permit from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives enabling DOC and its contractors to purchase spirits (

e.g.,

specially denatured spirits) tax-free for non-beverage Government use.

(b) When purchasing spirits for non-beverage use by DOC personnel, the contracting officer shall attach a copy of the permit to the contract. Upon receipt of the spirits, the contractor shall return the permit to the contracting officer unless future orders are anticipated

Subpart 1329.3—State and Local Taxes

1329.303

Application of State and local taxes to government contractors and subcontractors.

The designee authorized to review a proposed designation of a contractor as an agent of the Government is set forth in CAM 1301.70.

PART 1330—COST ACCOUNTING STANDARDS ADMINISTRATION

Subpart 1330.2—CAS Program Requirements

Sec.

1330.201

Contract requirements.

1330.201-5

Waiver.

1330.202

Disclosure requirements.

1330.202-2

Impracticality of submission.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1330.2—CAS Program Requirements

1330.201

Contract requirements.

1330.201-5

Waiver.

The designee authorized to waive the applicability of Cost Accounting Standards for a particular contract or subcontract is set forth in CAM 1301.70.

1330.202

Disclosure requirements.

1330.202-2

Impracticality of submission.

The DOC Head of Agency for Procurement is authorized to determine that it is impractical to secure a Disclosure Statement, although submission is required, and to authorize contract award without obtaining the Statement.

PART 1331—CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 1331.1—Applicability

Sec.

1331.101

Objectives.

Subpart 1331.2—Contracts with Commercial Organizations

1331.205

Selected costs.

1331.205-6

Compensation for personal services.

1331.205-32

Precontract costs.

1331.205-70

Duplication of effort.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1331.1—Applicability

1331.101

Objectives.

The designee authorized to approve individual deviations concerning cost principles is set forth in CAM 1301.70.

Subpart 1331.2—Contracts with Commercial Organizations

1331.205

Selected costs.

1331.205-6

Compensation for personal services.

The designee authorized to waive cost allowability limitations under certain circumstances regarding compensation of foreign nationals is set forth in CAM 1301.70.

1331.205-32

Precontract costs.

If precontract costs are anticipated, pursuant to negotiations and in anticipation of contract award, insert clause 1352.231-70

Precontract Costs,

in the contract.

1331.205-70

Duplication of effort.

The Department will not pay any costs for work that is duplicative of costs charged against any other contract, subcontract or Government source. Insert clause 1352.231-71,

Duplication of Effort,

in all cost-reimbursement, time and materials, and labor hour solicitations and contracts when applicable.

PART 1332—CONTRACT FINANCING

Sec.

1332.003

Simplified acquisition procedures financing.

1332.006

Reduction or suspension of contract payments upon finding of fraud.

1332.006-1

General.

1332.006-3

Responsibilities.

1332.006-4

Procedures.

1332.006-5

Reporting.

Subpart 1332.1—Non-Commercial Item Purchase Financing

1332.114

Unusual contract financing.

Subpart 1332.2—Commercial Item Purchase Financing

1332.201

Statutory authority.

1332.202

General.

1332.202-1

Policy.

Subpart 1332.4—Advance Payments for Non-Commercial Items

1332.402

General.

1332.404

Exclusions.

1332.407

Interest.

Subpart 1332.5—Progress Payments Based on Costs

1332.501

General.

1332.501-2

Unusual progress payments.

Subpart 1332.7—Contract Funding

1332.702

Policy.

1332.702-70

Forms.

Subpart 1332.8—Assignment of Claims

1332.802

Conditions.

Subpart 1332.9—Prompt Payment

1332.903

Responsibilities.

1332.906

Making payments.

Subpart 1332.11—Electronic Funds Transfer

1332.1108

Payment by Governmentwide commercial purchase card.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

1332.003

Simplified acquisition procedures financing.

Contract financing may be provided for purchases made under the authority of FAR Part 13. Contract financing shall be made in accordance with FAR Part 32.

1332.006

Reduction or suspension of contract payments under finding of fraud.

1332.006-1

General.

The designee authorized to exercise the responsibility to reduce or suspend contract payments is set forth in CAM 1301.70.

1332.006-3

Responsibilities.

DOC personnel shall immediately report to the Office of Inspector General any apparent or suspected instances where a contractor's request for advance, partial or progress payments is based on fraud in accordance with DAO 207-10,

Inspector General Investigations.

1332.006-4

Procedures.

(a) The Agency Head as described under 1332.006-4 is set forth in CAM 1301.70.

(b) The Office of Inspector General shall perform the function of the Remedy Coordination Official.

1332.006-5

Reporting.

In accordance with 41 U.S.C. 255, the head of an agency shall prepare a report for each fiscal year in which a recommendation has been received pursuant to FAR 32.006-4(a).

Subpart 1332.1—Non-Commercial Item Purchase Financing

1332.114

Unusual contract financing.

The designee authorized to approve unusual contract financing arrangements is set forth in CAM 1301.70.

Subpart 1332.2—Commercial Item Purchase Financing

1332.201

Statutory authority.

Payment for commercial items may be made under such terms and conditions as the designee authorized in CAM 1301.70 determines are appropriate or customary in the commercial marketplace and are in the best interest of the United States.

1332.202

General.

1332.202-1

Policy.

The designee authorized to approve unusual contract financing is set forth in CAM 1301.70.

Subpart 1332.4—Advance Payments for Non-Commercial Items

1332.402

General.

(a) Advanced payment may be authorized for contracts, other than those at FAR 32.403(a) and (b), only if other types of financing are not reasonably available to the contractor in adequate amounts.

(b) The designee authorized to determine when advance payment is in the public interest or facilitates national defense is set forth in CAM 1301.70.

1332.404

Exclusions.

Advance payments may be authorized for items listed in FAR 32.404(a).

1332.407

Interest.

The designee authorized to approve advance payment without interest is as set forth in CAM 1301.70.

Subpart 1332.5—Progress Payments Based on Costs

1332.501

General.

1332.501-2

Unusual progress payments.

The designee authorized to approve a contractor's request for unusual progress payments is set forth in CAM 1301.70.

Subpart 1332.7—Contract Funding

1332.702

Policy.

Contracting officers shall obtain assurances of available funds only from properly authorized designated certifying officers in accordance with Part 4, Section 1110 of the Treasury Financial Manual.

1332.702-70

Forms.

Contracting officers must obtain an electronic or hardcopy procurement request form on which the availability of adequate funds have been certified by a designated certifying officer. This form must have the name of the certifying official and the certified available funds, as well as the technical and other specifications of the request, administrative approvals, clearances, and information for processing payment.

Subpart 1332.8—Assignment of Claims

1332.802

Conditions.

The designee authorized to receive the written notice of assignment is set forth in CAM 1301.70.

Subpart 1332.9—Prompt Payment

1332.903

Responsibilities.

The designee authorized to establish Prompt Payment policies and procedures is set forth in CAM 1301.70.

1332.906

Making payments.

The designee authorized to allow invoice payments earlier than 7 days prior to the due date as specified in the contract is set forth in CAM 1301.70.

Subpart 1332.11—Electronic Funds Transfer

1332.1108

Payment by Governmentwide commercial purchase card.

Use of the Governmentwide commercial purchase card is subject to the requirements of the FAR, other internal Departmental policies, as well as operating unit policies and procedures related to the purchase card. All purchases made with the purchase card must comply with all procedures and documentation requirements that apply to the procurement action.

PART 1333—PROTESTS, DISPUTES, AND APPEALS

Subpart 1333.1—Protests

Sec.

1333.101

Definitions.

1333.102

General.

1333.103

Protests to the agency.

1333.104

Protests to GAO.

1333.104-70

Protests to GAO and Court of Federal Claims.

Subpart 1333.2—Disputes and Appeals

1333.203

Applicability.

1333.206

Initiation of a claim.

1333.211

Contracting officer's decision.

1333.212

Contracting officer's duties upon appeals.

1333.215

Contract clauses.

Authority:

41 U.S.C. 414; 48 CFR 1.301—1.304.

Subpart 1333.1—Protests

1333.101

Definitions.

Protest Decision Authority

means agency officials above the level of the contracting officer who have been designated by the Procurement Executive to issue agency protest decisions under Executive Order 12979.

1333.102

General.

(a) Contracting officers shall promptly notify the Procurement Counsel, and seek legal advice upon receiving notice that a protest has been filed in any forum.

(b) The designee authorized to determine that a solicitation, proposed award, or award under protest does not comply with the requirements of law or regulation, and to take the actions specified at FAR 33.102(b) is set forth in CAM 1301.70. Corrective action shall only be taken after consultation with Procurement Counsel.

1333.103

Protests to the agency.

(a) Insert provision 1352.233-70,

Agency Protests,

in all DOC solicitations, except these issued by the U.S. Patent and Trademark Office.

(b) All agency protest decisions shall be reviewed by Procurement Counsel before submission to the protester.

1333.104

Protests to GAO.

1333.104-70

Protests to GAO and Court of Federal Claims.

(a) Insert clause 1352.233-71,

GAO and Court of Federal Claims Protests,

in all DOC solicitations, except those for the U.S. Patent and Trademark Office.

(b) Only Procurement Counsel shall communicate with the Government Accountability Office (GAO), the Court of Federal Claims and the Department of Justice regarding applicable protests. Procurement Counsel shall be responsible for preparation and submission of the agency report to the GAO and litigation reports to the Department of Justice.

(c) The designee authorized to authorize, on a nondelegable basis, the award of a contract when the agency has received notice from the GAO of a preaward protest filed directly with the GAO is set forth in CAM 1301.70.

(d) The designee authorized to authorize, on a nondelegable basis, contract performance notwithstanding protest after award is set forth in CAM 1301.70.

(e) The designee authorized to report and explain the reasons why the agency has not fully implement GAO recommendations with respect to a protest is set forth in CAM 1301.70.

Subpart 1333.2—Disputes and Appeals

1333.203

Applicability.

The designee authorized to determine that the application of the Contract Disputes Act of 1978 to a contract with an international organization or a subsidiary body of that organization would not be in the public interest is set forth in CAM 1301.70.

1333.206

Initiation of a claim.

Contracting officers shall promptly notify Procurement Counsel and seek legal advice upon receiving a contractor claim.

1333.211

Contracting officer's decision.

All contracting officer decisions on claims shall be reviewed by Procurement Counsel before submission to the contractor.

1333.212

Contracting officer's duties upon appeals.

Only Procurement Counsel will communicate with the Civilian Board of Contract Appeals or the Department of Justice regarding appeals of contracting officer decisions. Procurement Counsel shall be responsible for preparation and submission of all filings with the Board.

1333.215

Contract clauses.

Alternate I of FAR 52.233-1,

Disputes,

may be used at the discretion of the contracting officer.

Subchapter F—Special Categories of Contracting

PART 1334—MAJOR SYSTEM ACQUISITION

Subpart 1334.0—General

Sec.

1334.003

Responsibilities.

1334.005

General requirements.

1334.005-6

Full production.

Subpart 1334.2—Earned Value Management System

1334.201

Policy.

1334.201-70

Policy.

1334.202

Integrated baseline reviews.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1334.0—General

1334.003

Responsibilities.

(a) The designee authorized to carry out the responsibilities described under FAR 34.003 is set forth in CAM 1301.70.

(b) Agency procedures related to major system acquisitions are set forth in DAO 208-3.

1334.005

General requirements.

1334.005-6

Full production.

The designee authorized to reaffirm mission need and program objectives and grant approval to proceed with the award of a contract for full production of a successfully tested major system is set forth in CAM 1301.70.

Subpart 1334.2—Earned Value Management System

1334.201

Policy.

1334.201-70

Policy.

(a) In accordance with the Department's Information Technology Investment Performance Measurement and Performance Reporting Policy, the use of an Earned Value Management System (EVMS) is required for major acquisitions for information technology development in which the development/modernization/enhancement costs are anticipated to equal or exceed $25 million over the life of the acquisition. The Chief

Information Officer may require EVMS on other acquisitions if the project merits special attention due to sensitivity, mission criticality, or risk potential.

(b) If a project manager considers the use of an EVMS to be necessary for a major acquisition that does not meet the $25 million threshold, the project manager should conduct a cost/benefit analysis and consult with the OCIO on the advisability of requiring an EVMS.

(c) Project managers, contracting officers, and contracting officer representatives responsible for major acquisitions requiring an EVMS must successfully complete an Earned Value Management course that meets the requirements of the OCIO.

(d) The use of firm-fixed-price type contracts, subcontracts and other agreements are generally not suited to developmental efforts and the use of an EVMS is of limited utility under such arrangements. In the rare cases where a fixed-price type contract is contemplated for a developmental effort, the project manager and contracting officer must consult with the OCIO for guidance to determine whether an EVMS will be required.

(e) The use of an EVMS is generally discouraged for contracts, subcontracts, and other agreements where the period of performance is less than 12 months in duration. Additionally, application of an EVMS to work efforts that are not discrete in nature should be considered on a case-by-case basis.

(f) In cases where the nature of the work does not lend itself to the meaningful use of an EVMS, the OCIO may waive the EVMS requirement if appropriate.

1334.202

Integrated baseline reviews.

An Integrated Baseline Review shall be conducted when an Earned Value Management System is required.

PART 1335—RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

1335.001

Definitions.

1335.006

Contracting methods and contract type.

1335.014

Government property and title.

1335.016

Broad agency announcement.

1335.016-70

DOC procedures for the use of broad agency announcement.

1335.017

Federally funded research and development centers.

1335.017-2

Establishing or changing an FFRDC.

1335.017-4

Reviewing FFRDCs.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

1335.001

Definitions.

Human Subject

means a living individual about whom an investigator (whether professional or student) conducting research obtains:

(1) Data through intervention or interaction with the individual, or

(2) Identifiable private information.

Intervention

includes both physical procedures by which data are gathered (for example, venipuncture) and manipulations of the subject or the subject's environment that are performed for research purposes. Interaction includes communication or interpersonal contact between investigator and subject. “Private information” includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record). Private information must be individually identifiable (

i.e.,

the identity of the subject is or may readily be ascertained by the investigator or associated with the information) in order for obtaining the information to constitute research involving human subjects.

Research

means a systematic investigation, including research, development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes. For example, some demonstration and service programs may include research activities.

1335.006

Contracting methods and contract type.

(a) Insert provision 1352.235-70,

Protection of Human Subjects,

in all solicitations where research services under the contract might involve the use of human subjects. The provision is mandatory where human subjects may be used in performance of the award and may not be modified without consultation with Program Counsel.

(b) Insert clause 1352.235-71,

Protection of Human Subjects—Exemption,

in all contracts where the agency has determined based on documentation submitted by the offeror in response to provision 1352.235-70,

Protection of Human Subjects,

that the research involving human subjects is exempt from the requirements of 15 CFR Part 27 and does not require Institutional Review Board (IRB) review. The provision is mandatory where an appropriate agency official has determined that the research involving human subjects to be carried out in performance of the award is exempt from 15 CFR Part 27, and may not be modified without consultation with Program Counsel.

(c) Insert clause 1352.235-72,

Protection of Human Subjects—Institutional Approval,

in all contracts where the agency has determined based on documentation submitted by the offeror in response to provision 1352.235-70,

Protection of Human Subjects,

that the research involving human subjects is not exempt from the requirements of 15 CFR Part 27 and requires review by a cognizant Institutional Review Board (IRB). The provision is mandatory where an appropriate Agency official has determined that the research involving human subjects to be carried out in performance of the award is not exempt from 15 CFR Part 27 and requires review by a cognizant IRB, and may not be modified without consultation with Program Counsel.

(d) Insert clause 1352.235-73,

Protection of Human Subjects—After Initial Contract Award,

in all contracts where at the time of award no research involving human subjects is anticipated, but where decisions made in the course of the research may necessitate the addition of research involving human subjects to the work performed. The provision is mandatory where it is possible that the use of human subjects may be required in performance of the award but is not anticipated at the time of award, and may not be modified without consultation with Program Counsel.

1335.014

Government property and title.

The designee authorized to determine that the policies in FAR 35.014(b)(1)-(4) will not apply regarding title to equipment purchased by nonprofit institutions of higher learning and nonprofit organizations whose primary purpose is the conduct of scientific research is set forth in CAM 1301.70.

1335.016

Broad agency announcement.

1335.016-70

DOC procedures for the use of broad agency announcements.

Procedures for the use of broad agency announcements within the Department of Commerce are set forth in CAM 1335.016.

1335.017

Federal funded research and development centers.

1335.017-2

Establishing or changing an FFRDC.

The designee authorized to approve the establishment of an FFRDC, or change its basic purpose and mission, is set forth in CAM 1301.70.

1335.017-4

Reviewing FFRDCs.

The designee authorized to approve the continuation or termination of the sponsorship of an FFRDC is set forth in CAM 1301.70.

PART 1336—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Subpart 1336.2—Special Aspects of Contract for Construction

Sec.

1336.203

Government estimate of construction costs.

1336.270

Special requirements for ship construction.

Subpart 1336.6—Architect-Engineer Services

1336.602

Selection of firms for architect-engineer contracts.

1336.602-2

Evaluation boards.

1336.602-4

Selection authority.

1336.602-5

Short selection process for contracts not to exceed the simplified acquisition threshold.

1336.605

Government cost estimate for architect-engineer work.

1336.609

Contract clauses.

1336.609-1

Design within funding limitations.

Authority:

41 U.S.C. 414; 48 CFR 1.301-1.304.

Subpart 1336.2—Special Aspects of Contracting for Construction

1336.203

Gove

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