[Federal Register Volume 68, Number 158 (Friday, August 15, 2003)]
[Proposed Rules]
[Pages 48996-49027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20095]
[[Page 48995]]
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Part II
Department of Labor
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Office of the Secretary
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48 CFR Parts 2901 through 2953
Revision to the Department of Labor Acquisition Regulations; Proposed
Rule
Federal Register / Vol. 68, No. 158 / Friday, August 15, 2003 /
Proposed Rules
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DEPARTMENT OF LABOR
Office of the Secretary
48 CFR Parts 2901 through 2953
RIN 1291-AA34
Revision to the Department of Labor Acquisition Regulations
AGENCY: Office of the Secretary, Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document sets forth a revised Department of Labor
Acquisition Regulation (DOLAR). The Department of Labor Acquisition
Regulation implements and supplements the Federal Acquisition
Regulation (FAR). The DOLAR was last revised in 1986, and is
significantly out-of-date. The regulation has been substantially
revised to: Update references to obsolete policies, procedures, and
organizations; incorporate electronic links to reference such as
revised provisions of the FAR, U.S. Code, and the Code of Federal
Regulations; incorporate Office of Federal Procurement Policy Letters,
and Executive Orders; and establish revised procedures that follow
current established best practices. The DOLAR provides a definition for
``Agency Head'', which is inconsistent with the internal Department of
Labor Manual Series (DLMS) Chapters 2-800 and 2-900 that establishes
DOL procurement operating procedures and policies. Future changes to
the DLMS will comport with this definition.
DATES: Interested parties should submit comments on the proposed rule
at the address, shown below, on or before October 14, 2003 to be
considered in the formulation of the final rule.
ADDRESSES: Comments may be submitted by email to:
[email protected]. Otherwise comments may be mailed to Jeffrey
Saylor, Director, Division of Acquisition Management Services, 200
Constitution Ave., NW., Room N-5425, Washington, DC 20210-0001.
FOR FURTHER INFORMATION CONTACT: Jeffrey Saylor, Director, Division of
Acquisition Management Services, telephone (202) 693-7285.
SUPPLEMENTARY INFORMATION: These comprehensive revisions to Parts 2901
through 2954 incorporate changes to the language and structure of the
regulations and also update provisions to correspond with the current
Federal Acquisition Regulation and Department of Labor policies.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires that, for
each rule with a ``significant economic impact on a substantial number
of small entities,'' an analysis shall be prepared describing the
rule's impact on small entities and identifying any significant
alternatives to the rule that would minimize the economic impact on
small entities. This proposed rule revises and updates existing
contracting procedures and does not make any major changes to the DOLAR
that would have a significant economic impact on a substantial number
of small businesses.
Executive Order 12866
This rule is considered by the Department of Labor to be a
significant regulatory action under Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Unfunded Reform Mandates Act of 1995
The Unfunded Reform Mandates Act of 1995 (Public Law 104-4)
requires agencies to prepare several analytic statements before
proposing any rule that may result in annual expenditures of $100
million by State, local, Indian Tribal governments or the private
sector. The proposed changes to the DOLAR would not result in
expenditures of this magnitude.
Paperwork Reduction Act
The proposed changes to the DOLAR will not impose additional
reporting or record-keeping requirements under the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 35). The DOL forms identified in 2953.1
are used for internal review and are not public use documents.
Congressional Review of Agency Rulemaking
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C.
804). This NPRM, if published as a final rule, would not: result in an
annual effect on the economy of $100 million or more; result in an
increase in cost or prices; or have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 13132: Federalism
The proposed changes to the DOLAR will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with section 6 of Executive Order 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
List of Subjects in 48 CFR Parts 2901 through 2953
Government procurement.
For the reasons stated in the preamble, the Department of Labor
proposes to amend 48 CFR Chapter 29 by revising Parts 2901 through
2953, to read as set forth below.
Signed at Washington, DC this 1st day of August 2003.
Elaine L. Chao,
Secretary of Labor.
Sec.
CHAPTER 29--DEPARTMENT OF LABOR
(Parts 2901 to 2953)
SUBCHAPTER A--GENERAL
PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
2901.1 Purpose, Authority, Issuance.
2901.2 Administration.
2901.4 Deviations From the FAR and DOLAR.
2901.6 Career Development, Contracting Authority, and
Responsibilities.
2901.7 Determinations and Findings.
PART 2902--DEFINITIONS OF WORDS AND TERMS
2902.1 Definitions.
PART 2903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
2903.1 Safeguards.
2903.2 Contractor Gratuities to Government Personnel.
2903.6 Contracts With Government Employees or Organizations Owned or
Controlled by Them.
PART 2904--ADMINISTRATIVE MATTERS
2904.6 Contract Reporting.
2904.8 Government Contract Files.
SUBCHAPTER B--ACQUISITION PLANNING
PART 2905--PUBLICIZING CONTRACT ACTIONS
2905.1 Dissemination of Information.
2905.2 Synopsis of Proposed Contract Actions.
2905.4 Release of Information.
2905.5 Paid Advertisements.
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PART 2906--COMPETITION REQUIREMENTS
2906.3 Other than Full and Open Competition.
2906.5 Competition Advocates.
PART 2907--ACQUISITION PLANNING
2907.1 Acquisition Plans.
2907.3 Contractor Versus Government Performance (A-76
Considerations).
PART 2908--REQUIRED SOURCES OF SUPPLIES AND SERVICES
2908.4 Federal Supply Schedules.
PART 2909--CONTRACTOR QUALIFICATIONS
2909.1 Responsible Prospective Contractors.
2909.4 Debarment, Suspension, And Ineligibility.
2909.5 Organizational Conflicts of Interest.
PART 2910--SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS
2910.002 Procedures.
PART 2911--DESCRIBING AGENCY NEEDS
2911.1 Selecting And Developing Requirements Documents.
2911.5 Liquidated damages.
PART 2912--ACQUISITION OF COMMERCIAL ITEMS
2912.3 Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items.
PART 2913--SIMPLIFIED ACQUISITION PROCEDURES
2913.1 Procedures.
2913.2 Actions at or Below the Micro-purchase Threshold.
2913.3 Simplified Acquisition Methods.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 2914--SEALED BIDDING
2914.4 Opening of Bids and Award of Contract.
PART 2915--CONTRACTING BY NEGOTIATION
2915.4 Contract Pricing.
2915.5 Preaward, Award, and Postaward Notifications, Protests, and
Mistakes.
2915.6 Unsolicited Proposals.
PART 2916--TYPES OF CONTRACTS
2916.5 Indefinite-Delivery Contracts.
2916.6 Time-and-Materials, Labor-Hour, and Letter Contracts.
PART 2917--SPECIAL CONTRACTING METHODS
2917.2 Options.
2917.5 Interagency Acquisitions Under The Economy Act.
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 2918 [RESERVED]
PART 2919--SMALL BUSINESS PROGRAMS
2919.2 Policies
2919.5 Set-Asides for Small Business.
2919.7 The Small Business Subcontracting Program.
2919.8 Contracting with the Small Business Administration (The 8(a)
Program).
PART 2920-2921 [RESERVED]
PART 2922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
2922.1 Basic Labor Policies.
PART 2923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
2923.2 Energy Conservation.
PART 2924-2927 [RESERVED]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 2928--BONDS AND INSURANCE
2928.2 Sureties and Other Security for Bonds.
2928.3 Insurance.
PART 2929--TAXES
2929.1 General.
2929.3 State and Local Taxes.
PART 2930--COST ACCOUNTING STANDARDS
2930.1 CAS Program Requirements.
PART 2931--CONTRACT COST PRINCIPLES AND PROCEDURES
2931.1 Applicability.
PART 2932--CONTRACT FINANCING
2932.4 Advance payments for Non-Commercial Items.
2932.7 Contractor Funding.
PART 2933--PROTESTS, DISPUTES, AND APPEALS
2933.1 Protests.
2933.2 Disputes And Appeals.
PART 2934-2935 [RESERVED]
PART 2936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
2936.2 Special Aspects of Contracting for Construction.
2936.5 Contract Clauses.
2936.6 Architect-Engineer Services.
PART 2937--SERVICE CONTRACTING
2937.1 Service Contracts-General.
2937.6 Preference for Performance-Based Contracting (PBC).
PARTS 2938-2941 [RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 2942--CONTRACT ADMINISTRATION AND AUDIT SERVICES
2942.1 Contract Audit Services.
2942.15 Contractor Performance Information.
PART 2943--CONTRACT MODIFICATIONS
2943.2 Change Orders.
2943.3 Forms.
PART 2944--SUBCONTRACTING POLICIES AND PROCEDURES
2944.1 General.
2944.2 Consent To Subcontract.
2944.3 Contractors' Purchasing Systems Reviews.
PART 2945--GOVERNMENT PROPERTY
2945.1 General.
2945.3 Providing Government Property to Contractors.
2945.4 Contractor Use and Rental of Government Property.
PARTS 2946-2951 [RESERVED]
SUBCHAPTER H--CLAUSES AND FORMS
PART 2952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.2 Text of Provisions and Clauses.
PART 2953--FORMS
53.1 General.
SUBCHAPTER A--GENERAL
PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
Subpart 2901.0--Scope of Subpart
Subpart 2901.1--Purpose, Authority, Issuance
Sec.
2901.101 Purpose.
2901.103 Authority.
2901.105-1 Publication and code arrangement.
2901.105-2 Arrangement of regulations.
2901.105-3 Copies.
Subpart 2901.2--Administration
2901.201-1 Maintenance of the FAR.
2901.302 Limitations.
2901.304 Agency Control and Compliance Procedures.
Subpart 2901.4--Deviations From the FAR and DOLAR
2901.403 Individual deviations from the FAR.
2901.404 Class deviations.
2901.405 Deviations pertaining to treaties and executive agreements.
Subpart 2901.5--Agency and Public Participation
Subpart 2901.6--Career Development, Contracting Authority, and
Responsibilities
2901.601 General.
2901.602 Contracting officers.
2901.602-1 Authority.
2901.602-3 Ratification of unauthorized commitments.
2901.603 Selection, appointment, and termination of appointment.
2901.603-1 General.
2901.603-2 Selection.
2901.603-3 Appointment.
2901.603-4 Terminations.
2901.603-70 Responsibility of other Government personnel.
2901.603-71 Contracting officer's technical representatives (COTR).
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2901.603-72 Administrative procurement reviews.
Subpart 2901.7--Determinations and Findings
2901.707 Signatory authority.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
Subpart 2901.0--Scope of Subpart
(a) This chapter may be referred to as the Department of Labor
Acquisition Regulation or the DOLAR. This subpart sets forth
introductory information about the Department of Labor Acquisition
Regulation. This subpart explains the relationship of the DOLAR to the
Federal Acquisition Regulation (FAR) and explains the DOLAR's purpose,
authority, applicability, exclusions, and issuance.
Subpart 2901.1--Purpose, Authority, Issuance
2901.101 Purpose.
(a) Chapter 29, Department of Labor Acquisition Regulation, is
established within Title 48 of the Federal Acquisition Regulation
System of the Code of Federal Regulations.
(b) The purpose of the DOLAR is to implement the FAR, and to
supplement the FAR when coverage is needed for subject matter not
covered in the FAR. The DOLAR is not by itself a complete document, as
it must be used in conjunction with the FAR.
2901.103 Authority.
The DOLAR is issued pursuant to the authority of the Secretary of
Labor under 5 U.S.C. 301 and 40 U.S.C. 486(c). This authority has been
delegated to the Assistant Secretary for Administration and Management
(ASAM) under Secretary's Order 4-76 in accordance with FAR 1.301(d)(3).
2901.105-2 Arrangement of regulations.
(a) Numbering. Where DOLAR implements the FAR, the implementing
part, subpart, section or subsection of the DOLAR is numbered and
captioned, to the extent feasible, the same as the FAR part, subpart,
section or subsection being implemented except that the section or
subsection being implemented is preceded with a 29 or a 290 such that
there will always be four numbers to the left of the first decimal. For
example, the DOLAR implementation of FAR l.105-l is shown as 290l.l05-1
and the DOLAR implementation of FAR Subpart 24.1 is shown as DOLAR
Subpart 2924.1. Material which supplements the FAR is assigned the
subsection numbers 70 and up. For example, the DOL regulation governing
appointment and termination of contracting officers' technical
representatives is identified as 2901.603-71.
(b) References to FAR materials within the DOLAR will include the
acronym FAR and the identifying number, for example, FAR l.104-2(c)(2).
References to DOLAR materials within the DOLAR simply cite the
identifying number, for example, 2901.104-2(c)(2).
2901.105-3 Copies.
(a) Copies of the DOLAR published in the Federal Register, CD-ROM,
or Code of Federal Regulations may be purchased from the Superintendent
of Documents, Government Printing Office, Washington, DC 20402, or from
the Government Printing Office Web page, http://www.gpo.gov/. Requests
should reference the DOLAR as Chapter 29 of Title 48. The Code of
Federal Regulations is printed in paperback edition with updates as
needed. Additional information on DOL may be obtained on the Internet
at www.dol.gov. Other DOL procurement policy documents referenced
within the DOLAR may be available when appropriate by mail from the
Division of Acquisition Management Services.
Subpart 2901.2--Administration
2901.201-1 Maintenance of the FAR.
A member of the Division of Acquisition Management Services (DAMS),
an organization within the Office of Acquisition and Management Support
Services, the Business Operations Center, Office of the Assistant
Secretary for Administration and Management (OASAM), represents the
Department of Labor on the Civilian Agency Acquisition Council (CAAC).
DAMS will be responsible for coordination with all interested DOL
elements regarding proposed FAR revisions, and advocating revisions
sought by DOL.
Subpart 2901.3--Agency Acquisition Regulations
2901.302 Limitations.
DOLAR System issuances are limited to published, codified,
Department-wide regulations, which implement or supplement FAR policies
and procedures and which affect organizations or individuals seeking to
contract with the Department.
2901.304 Agency control and compliance procedures.
(a) The DOLAR is under the direct oversight and control of the
Department's Procurement Executive. Procedures for review and approval
of issuances under the DOLAR System comply with FAR Subparts 1.3 and
1.4. These procedures are contained in Subpart 2901.6.
(b) DOLAR issuances shall comply with the restrictions in FAR
1.304(b).
(c) Heads of Contracting Activity (HCAs) must submit all proposed
instructions and materials that implement or supplement the DOLAR to
the Director, DAMS. In conjunction with the Office of the Solicitor,
DAMS will review all issuances whether or not they will be published in
the Federal Register as a part of the DOLAR System. In the case of
internal procurement policy instructions, the purpose of the review is
to ascertain that such instructions are consistent with the FAR and the
DOLAR and that they do not contain information which should be issued
under the DOLAR.
Subpart 2901.4--Deviations From the FAR and DOLAR
2901.403 Individual deviations from the FAR.
(a) The Procurement Executive (PE) is authorized to approve
deviations from FAR provisions (see FAR 1.403) or DOLAR provisions,
which affect only one contracting action, unless FAR 1.405(e) is
applicable. Requests for deviations shall be submitted through the
Director, DAMS.
(b) Requests for deviations under paragraph (a) of this section
must be submitted by the HCA and include justification as to why the
deviation is required.
(c) A copy of the approved deviation must be included in the
contract file.
2901.404 Class deviations.
(a) The PE is authorized to approve class deviations from FAR or
DOLAR provisions which affect more than one contracting action, unless
FAR 1.405(e) is applicable. The request for deviation is submitted
through the Director, DAMS.
(b) Requests for deviations under paragraph (a) of this section,
must be submitted by the HCA and include justification as to why the
deviation is required and the number of contracting actions which will
be affected.
(c) For a FAR class deviation the Director, DAMS will consult with
the Chair of the CAAC, as required in FAR 1.404(a)(1), before
authorizing the deviation.
(d) A copy of the approved class deviation must be included in each
contract file.
(e) Recommended revisions to the FAR and a copy of each approved
class
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FAR deviation will be transmitted to the FAR Secretariat by the
Director, DAMS as required in FAR 1.404.
2901.405 Deviations pertaining to treaties and executive agreements.
(a) The Director, DAMS is responsible for transmitting to the FAR
Secretariat the information required in FAR 1.405(d).
(b) For deviations not authorized by FAR 1.405(b) or (c), the
Director, DAMS will process the request for deviation through the FAR
Secretariat.
Subpart 2901.6--Career Development, Contracting Authority, and
Responsibilities.
2901.601 General.
(a) This section deals with contracting authority and
responsibilities of the head of the agency as described in 2902.1, FAR
Subpart 1.6 and this subpart.
(1) The authority and responsibility vested in the Secretary to
contract for authorized supplies and services is delegated to the
Assistant Secretary for Administration and Management (ASAM).
(2) The ASAM may delegate contracting authority to a bureau or
agency within the Department of Labor as he/she delineates in writing.
(b) The Assistant Secretary for Administration and Management,
acting through the Procurement Executive, may delegate additional
procurement authority subject to the issuance of warrants by the
Procurement Executive, and reserves the right to rescind any
acquisition authority, if it is determined that such action is in the
best interest of the Government.
2901.602 Contracting officers.
2901.602-1 Authority.
Contracting warrants, at all levels above the micropurchase
threshold, must be requested by the HCA in writing and signed by the
Procurement Executive. Warrants may be accompanied by letters of
appointment that may provide requirements for maintaining the warrant
(e.g., maintaining current documentation for the FAR, DOLAR, and other
guidance, and recurrent training). Copies of the appointment shall be
maintained in the Division of Acquisition Management Services.
Contracting officers must display the original warrant (and its
limitations) in their workspace. A listing of current contracting
officers may be available for review on the Internet at http://www.dol.gov/oasam/grants/prgms.htm. To modify a contracting officer's
authority, the present appointment must be revoked and a new
certificate issued.
2901.602-3 Ratification of unauthorized commitments.
(a) If the HCA agrees that the commitment appears to be without
valid authorization, the Division of Acquisition Management Services
must be notified by the HCA in accordance with the procedures outlined
in this section.
(b) Ratifications--thresholds. The Department of Labor may only
ratify acquisitions that were intended to fulfill a bona fide need and
otherwise were authorized when made. If the action to be ratified is
not approved, then the employee who authorized the work may be liable
for the entire cost of the action. Requests received by contracting
officers for ratification of commitments made by personnel lacking
contracting authority must be processed as follows:
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Must be approved by
Dollar threshold (ratifying official) Steps to be followed
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Below the micropurchase threshold.... Head of the Contracting a through e & g.
Office.
Between the micropurchase threshold Head of Contracting Activity. a through e & g.
and the Simplified Acquisition
Threshold.
Above the Simplified Acquisition ASAM, after review by the a through g.
Threshold. Procurement Review Board.
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Note: DOL procurement policies require review by the Procurement Review Board of advisory and assistance
services acquisitions above $50,000 for competitive acquisitions and at any dollar amount for noncompetitive
acquisitions, and waivers for contracts with employees and recently separated employees. Therefore, review by
the PRB is required for unauthorized obligations at these lower thresholds.
Step Instruction
(a) The individual is placed on notice by the contracting
officer, in writing, that the purchase may be inappropriate because
he did not have a purchasing request, funding, or authority to
obligate the Government to make an expenditure of funds.
(i) The individual who made the unauthorized contractual
commitment shall furnish the contracting officer all records and
documents concerning the commitment and a complete written statement
of the facts, including, but not limited to a statement as to why
the acquisition office was not used, a description of work to be
performed or products to be furnished, an estimated or agreed-upon
contract price, citation of appropriation available, and a statement
as to whether the contractor has commenced performance.
(ii) In the absence of such an individual, the head of the
applicable office will be responsible for providing such
information, including an explanation of why the individual who made
the unauthorized commitment is unavailable to provide this
information.
(b) The individual who made the unauthorized commitment or the
head of the applicable office, as appropriate, shall provide a
determination and finding (see FAR 1.704) to the contracting officer
indicating that:
(i) Supplies or services have been provided to and accepted by
the Government, or the Government otherwise has obtained or will
obtain a benefit resulting from performance of the unauthorized
commitment;
(ii) A procurement request and/or accompanying documentation
including a statement signed by the individual that explains why
normal acquisition procedures were not followed, explains why the
source was selected, lists other sources considered, describes the
work, and estimates or states the agreed upon price. (If the DOL
employee who made the unauthorized commitment is no longer
available, appropriate program personnel must provide the
information described in this paragraph); and
(iii) Funds are available and were available at the time of the
unauthorized commitment.
(c) The contracting officer reviewing the unauthorized
commitment shall determine whether the price is fair and reasonable,
and if payment is recommended to the ratifying official. (The
contracting officer may rely upon written documentation submitted by
managing staff above the individual who made the unauthorized
commitment, in making his/her determination.)
(d) Legal review is required before ratification by the
ratifying official.
(e) The ratifying official shall make an affirmative
determination and finding that:
(i) The resulting purchase order or contract would otherwise
have been proper if made by an appropriate contracting officer.
(ii) The contracting officer reviewing the unauthorized
commitment has determined that the price is fair and reasonable, and
payment is recommended.
(f) For cases over the simplified acquisition threshold, all
documentation for steps (a) through (e) must be forwarded to the
Director, Division of Acquisition Management Services for submission
to the Procurement Review Board. However, the ratifying official is
responsible for directing the receipt and acceptance for all
products and deliverables received by the Government as a result of
an unauthorized commitment.
(g) The supervisor of the individual who made the unauthorized
commitment shall prepare a corrective action plan to preclude
further unauthorized commitments (e.g. ethics, purchase card, or
administrative
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procedures training, or other appropriate action). The ratifying
official may approve the corrective action plan. The individual
shall report to the ratifying official in writing when the
corrective action has been initiated and again after it has been
fully implemented.
2901.603 Selection, appointment, and termination of appointment.
2901.603-1 General.
(a) The Procurement Executive will develop and manage an
acquisition career management program for contracting personnel.
Training requirements must conform to Office of Federal Procurement
Policy Letters 92-3, 97-01, and the Federal Acquisition Institutes
curriculum. These references are available at:
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL97-01.html, http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-3.html, and through the Federal Acquisition Institute (FAI) at:
http://www.faionline.com/fai/campus/index4.htm.
(b) The program must cover all contracting personnel in the
following categories:
(1) General Schedule (GS-1102) Contracting Series (See also FAR
1.603);
(2) Contracting officers, regardless of General Schedule Series,
with contracting authority above the simplified acquisition threshold;
(3) Purchasing Series (GS-1105), other individuals performing
purchasing duties and individuals with contracting authority between
the micro-purchase and simplified acquisition thresholds.
(4) All Contracting Officer Technical Representatives as identified
in 2901.603-71.
2901.603-3 Appointment.
General. In accordance with FAR 1.603-3 appointments will be made
in writing on an SF 1402 for all warrants above the micro-purchase
threshold. In addition appointments may be made for specific functions
unrelated to dollar threshold, such as indirect cost negotiation, debt
management, closeout functions.
(a) Purchase cards (micropurchase threshold). Purchase cardholders
will be appointed in accordance with the DOL Guidelines for Purchase
Card Use and the Agency/Office procedures approved by the HCA. Agency/
Organization Purchase Card Coordinators requesting issuance of a
purchase card must be responsible for ensuring that the purchase
cardholder has taken an orientation course before issuance and/or use
of the purchase card. A list of purchase cardholders is available at:
http://www.dol.gov/oasam/foia/hotfoia/citibank-list.htm.
(b) Simplified acquisition threshold (currently $100,000). The HCA
may request a delegation of procurement authority not to exceed the
simplified acquisition threshold based on education, training, and
experience, in the acquisition field. Effective October 1, 2003, all
new appointments must comply with training requirements listed in
``OFPP Policy Letter No. 92-3, Procurement Professionalism Program
Policy-Training for Contracting Personnel'', dated June 24, 1992.
(c) $500,000. The HCA may request a delegation of procurement
authority not to exceed $500,000 based on the individual's education,
training and experience in contracting. Although primarily reserved for
those in the GS 1102 series, the HCA may consider business acumen,
education, training, and experience. Effective October 1, 2003, all new
appointments must comply with training requirements listed in ``OFPP
Policy Letter No. 92-3, Procurement Professionalism Program Policy-
Training for Contracting Personnel'', dated June 24, 1992.
(d) Unlimited. The HCA may request a delegation of procurement
authority on an unlimited basis for individuals whose education,
training, and experience in contracting warrant such authority.
Although primarily reserved for those in the GS 1102 series, the HCA
may consider length of service, training, and experience. Effective
October 1, 2003, all new appointments must comply with training
requirements listed in ``OFPP Policy Letter No. 92-3, Procurement
Professionalism Program Policy-Training for Contracting Personnel'',
dated June 24, 1992.
2901.603-4 Terminations.
Termination of a contracting officer's appointment will be made in
writing unless the warrant contains the basis for the termination
(i.e., retirement, reassignment). Terminations may be immediate, but
must not operate retroactively.
2901.603-70 Responsibility of other Government personnel.
(a) Only DOL personnel with contracting authority shall obligate
DOL to any type of contractual obligation and only to the extent of
their delegated authority. Responsibility for determining how to buy,
the conduct of the buying process, and execution of the contract rests
with the contracting officer.
(b) Personnel responsible for determining agency needs should
maintain a close and continuous relationship with their contracting
officer to ensure that acquisition personnel are made aware of
contemplated acquisition actions. This will be mutually beneficial in
terms of better planning for acquisition action and more timely,
efficient and economical acquisition.
(c) Personnel not delegated contracting authority or insufficient
contracting authority, may not commit the Government, formally or
informally, to any type of contractual obligation. However, DOL
personnel who must use the contracting process to accomplish their
programs, must support the contracting officer to ensure that:
(1) Requirements are clearly defined and specified without being
overly restrictive in accordance with FAR 11.002;
(2) Competitive sources are solicited, evaluated, and selected as
appropriate;
(3) The FAR and the Competition in Contracting Act requirements for
full and open competition are satisfied to the maximum extent
practicable. Sole source purchases may only be permitted in accordance
with FAR Subpart 6.3 or other applicable provisions of the FAR (e.g.
FAR Part 8) or federal law.
(4) Quality standards are prescribed, and met;
(5) Performance or delivery is timely;
(6) Files are documented to substantiate the judgments, decisions,
and actions taken, including compliance with paragraphs (c)(2) and (3)
of this section.
(7) Requirements are written in so to encourage competition and to
comply with regulations and federal policy for meeting acquisition
goals such as performance-based contracting, HUBZone contractors, etc.
The contracting officer will identify these programs to the program
office.
2901.603-71 Contracting Officer's Technical Representatives (COTR).
(a) At the time a COTR is to become responsible for a contract,
task order, or delivery order, the contracting officer must issue a
written letter of delegation informing the individual by name of his or
her authority, including a delineation of applicable limitations and
responsibilities. This applies to contracts awarded by the Department
of Labor and those awarded by other agencies, such as Federal Supply
Schedule Contracts or Economy Act transactions. Only the contracting
officer cognizant of the contract action may make a COTR delegation.
However, a contracting officer at any level above the cognizant
contracting officer may sign the delegation letter, following his or
her determination of its accuracy, completeness, and sufficiency.
[[Page 49001]]
(b) The functions of a COTR typically may include such actions as
inspecting, testing, and accepting contract line items, monitoring the
contractor's performance, controlling Government-furnished property,
reviewing and approving and/or recommending to the contracting officer
approval/disapproval of vouchers/invoices, etc. An individual COTR may
have only the duties specifically identified in a written delegation to
him or her by name (i.e., COTR duties may not be delegated to a
position) and has no authority to exceed them.
(c) Contracting officers may not delegate to the COTR the following
authorities:
(1) The authority to issue task or delivery orders against a
contract or any of the agreements defined under FAR 16.7;
(2) The authority to change any of the terms and conditions of a
contract or any of the agreements defined under FAR 16.7;
(3) The authority to sign contracts or contract modifications;
(4) The authority to write letters to the contractor that will
affect the cost or schedule of the contract. The authority to otherwise
write letters to a contractor must require the COTR to send a copy of
the letters to the contracting officer for the contract file;
(5) The authority to approve contractors' final invoices under
cost-reimbursement contracts. However, the COTR must make a final
payment recommendation to the contracting officer; or
(6) The authority to commit the Government to any adjustments to
the price or cost of the contract or order (e.g., the contracting
officer must sign all pre-negotiation and price negotiation memoranda
including those which may be combined into one document for those
adjustments valued at $100,000 or less).
(d) The contracting officer's delegation must include the
admonition that the COTR may be personally liable for unauthorized
commitments. Contracting officer authority to sign or authorize
contractual instruments must not be delegated through a COTR
designation or by any means other than a contracting officer warrant.
(e) The contractor must be notified of the COTR designation in
writing and a copy of the COTR letter of appointment also must be
provided to the contractor. The contracting officer must provide the
COTR with a copy of the COTR designation notification that was sent to
the contractor.
(f) The letter delegating COTR authority must include the contract
number, and must include the following information, at a minimum:
(1) Contracting officer's and contract specialist's/administrator's
name and telephone number;
(2) COTR's specific authority and responsibilities;
(3) COTR's specific limitations, including the admonition that the
COTR may be personally liable for unauthorized commitments;
(4) Detailed description of the types of files and the content of
the files to be maintained by the COTR;
(5) Reference to meeting applicable requirements for ethics,
procurement integrity, no conflict of interest, and proper standards of
conduct, including a copy of FAR Part 3, and other regulations,
statutes, or directives governing these topics (e.g., 5 CFR Part 2635,
Standards of Conduct);
(6) A requirement that the COTR acknowledge receipt and acceptance
of the letter and return it to the contracting officer.
(7) A description of the training required and information on
obtaining such training.
(g) Applicability. The eligibility requirements of this subpart
must apply to all individuals who are designated by the contracting
officer as COTRs.
(h) Eligibility standards. To be determined eligible for an
appointment as a DOL COTR, the following standards must be met:
(1) The candidate must attend and successfully complete a minimum
of a 16-hour basic COTR course; and
(2) The candidate must attend a minimum of 1 hour of training
specifically in procurement ethics, either through courses offered
periodically by the Department of Labor, another federal agency's
program, or a commercial vendor.
(i) Limitations. Effective October 1, 2003, each COTR appointment
made by the contracting officer must clearly state that the
representative is not an authorized contracting officer and does not
have the authority under any circumstances to:
(1) Award, agree to award, or execute any contract, contract
modification, notice of intent, or other form of binding agreement;
(2) Obligate, in any manner, the payment of money by the
Government;
(3) Make a final decision on any contract matter which is subject
to the clause at FAR 52.233-1, Disputes; or
(4) Terminate, suspend, or otherwise interfere with the
contractor's right to proceed, or direct any changes in the
contractor's performance that are inconsistent with or materially
change the contract specifications.
(j) Termination. (1) Termination of the COTR's appointment must be
made in writing by a contracting officer and must give the effective
date of the termination. The contracting officer must promptly modify
the contract once a COTR termination notice has been issued. A
termination notice is not required when the COTR's appointment
terminates upon expiration of the contract.
(2) COTRs may be terminated for reasons (not an exhaustive listing)
such as exceeding their authorities and limitations, conflicts of
interest, unethical conduct, failure to perform, reassignment/
resignation/retirement, and upon completion of the contract to which
assigned.
(k) Waivers. No individual may serve as a COTR on any contract
without the requisite training and signed COTR certificate for the
file. In the rare event that there is an urgent requirement for a
specific individual to serve as a COTR and the individual has not
successfully completed the required training, the HCA may waive the
training requirements and authorize the individual to perform the COTR
duties.
2901.603-72 Administrative procurement reviews.
(a) The Procurement Executive (PE) is responsible for performing
administrative procurement reviews for each procurement office in the
Department of Labor except the Office of Inspector General (OIG). The
purpose of these reviews is to audit internal controls to ensure
compliance with established procurement law, regulations, policies,
procedures and applicable directives. The reviews are to emphasize the
development and improvement of managerial controls and best practices.
(b) The administrative procurement review system is a three-pronged
approach that includes self-assessment, statistical data for
validation, and flexible quality reviews and assessment techniques.
This system is required to:
(1) Evaluate the effectiveness and efficiency of office acquisition
systems;
(2) Assess the adequacy of policies, procedures and regulations
governing the acquisition process; and
(3) Identify and implement changes necessary to improve the
systems.
(c) The PE shall establish procurement review procedures, which
will focus on:
(1) Conformance with policies of the FAR, DOLAR and the Department
of Labor Manual Series 2-800 and 2-900.
(2) Conformance with federal reporting requirements for the
Department of Labor.
[[Page 49002]]
(3) Understanding of new department-wide or government-wide
initiatives (e.g., E-Procurement).
(4) Government-wide procedures established by the Office of
Management and Budget.
(d) HCAs are responsible for ensuring contracting activity
compliance with law and regulations through the review and oversight
process.
Subpart 2901.7--Determinations and Findings
2901.707 Signatory authority.
A class justification for other than full and open competition must
be approved in writing by the same approval authority as for individual
justifications in accordance with FAR 6.304(a). The approval level must
be determined by the estimated total value of the class.
PART 2902--DEFINITIONS OF WORDS AND TERMS
Sec.
2902.1--Definitions
2902.101 Definitions.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2.1--Definitions
2902.101 Definitions.
(a) Commonly used words and terms are defined in FAR Subpart 2.1.
This Part 2902 gives DOL-specific meanings for some of these words and
terms and defines other words and terms commonly used in the DOL
acquisition process.
(b) The following words and terms are used as defined in this
subpart unless the context in which they are used clearly requires a
different meaning, or a different definition is prescribed for a
particular part or portion of a part:
Competition Advocate. The Competition Advocate for the Department
of Labor is appointed by the ASAM and is defined in FAR 6.5 and 2906.5.
If the appointee is recused from a procurement action, the ASAM may
designate another official to act in that capacity.
Contracting activity means an agency or component office within the
Department of Labor with specific responsibility for managing contract
functions pursuant to one or more warrants signed by the Procurement
Executive (or the Office of the Inspector General for its contracting
activity).
Contracting Officer's Technical Representative means the individual
appointed by the contracting officer to represent the Department of
Labor's programmatic interests on a Department of Labor contract, task
order, or delivery order. This individual is responsible to the
contracting officer for overseeing receipt and acceptance of goods/
services by the Government, reporting on the contractor's performance,
and approving/disapproving payment to the Contractor. Authority is
otherwise limited to giving technical direction to the Contractor
within the framework of the contract (see 2901.603-71). This position
may go by other titles, such as: A technical point of contact (TPOC),
or Contacting Officer's Representative (COR).
Head of Agency (also called agency head), for the FAR and DOLAR
only, means the Assistant Secretary for Administration and Management;
except that, the Secretary of Labor is the head of Agency for
acquisition actions which by the terms of a statute or delegation must
be performed specifically by the Secretary of Labor; the Inspector
General is the Head of Agency in all cases for the Office of the
Inspector General. Authority to act as the Head of Agency has been
delegated to the Assistant Secretary for Employment and Training and
the Assistant Secretary for Mine Safety and Health for their respective
agencies. For purposes of the Economy Act, (determinations and
interagency agreements under FAR 17.5) only, the Employment Benefits
Administration, Employment Standards Administration, Women's Bureau,
Office of Solicitor, Bureau of Labor Statistics, Office of Disability
Employment, and the Occupational Safety and Health Administration are
delegated contracting authority.
Head of Contracting Activity (HCA) means the official who has
overall responsibility for managing the contracting activity, when the
contracting activity has more than one person with a warrant issued by
the Procurement Executive. In the Department of Labor the following
officials are the HCA for their respective organization:
(i) For the Mine Safety and Health Administration, the Director,
Administration and Management, MSHA.
(ii) For the Employment and Training Administration, the Director,
Office of Grants and Contract Management, ETA.
(iii) For the Office of Inspector General, the Director, Division
of Finance and Administration, OIG.
(iv) For the Bureau of Labor Statistics, the Director, Division of
Administrative Services, BLS.
(v) For the Office of the Assistant Secretary for Administration
and Management and all other agencies not listed in this definition,
the Director, Business Operations Center, OASAM.
Procurement Executive means the Director, Business Operations
Center, and is synonymous with the term ``Senior Procurement
Executive'' as defined at FAR 2.101.
PART 2903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 2903.1--Safeguards
Sec.
2903.101 Standards of Conduct.
2903.101-1 General.
2903.104 Procurement integrity.
2903.104-3 Definition.
2903.104-5 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
2903.104-7 Violations or possible violations.
Subpart 2903.2--Contractor Gratuities to Government Personnel
2903.203 Reporting suspected violations of the Gratuities clause.
2903.204 Treatment of violations.
Subpart 2903.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
2903.601 Policy.
2903.602 Exceptions.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2903.1--Safeguards
2903.101 Standards of conduct.
2903.101-1 General.
The statutory prohibitions and their application to DOL personnel
are discussed in the Standards of Ethical Conduct for Employees of the
Executive Branch, 5 CFR Part 2635 and the supplemental DOL standards of
conduct, 5 CFR Part 5201. All DOL personnel involved in acquisitions
must become familiar with these statutory prohibitions. Any questions
concerning them must be referred to an Agency Ethics Official in the
Office of the Solicitor. In addition to criminal penalties, the
statutes provide that transactions entered into in violation of these
prohibitions are voidable (18 U.S.C. 218). Any suspected violations
must be reported promptly to the Office of Inspector General.
2903.104 Procurement integrity.
2903.104-3 Definitions.
Agency ethics official means the Solicitor or the Associate
Solicitor for Legislation and Legal Counsel (LLC).
[[Page 49003]]
2903.104-5 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
(a) Government employees serving in the following positions are
authorized access to proprietary or source selection information, but
only to the extent necessary to perform their official duties:
(1) Personnel participating in technical evaluation panels (i.e.,
source selection board) or personnel evaluating an offeror's or
bidder's technical or cost proposal under other competitive procedures,
and personnel evaluating protests.
(2) Personnel assigned to the contracting office.
(3) The initiator of the procurement request (to include the
official having principal technical cognizance over the requirement).
(4) Small business specialists.
(5) Personnel assigned to the Office of the Solicitor.
(6) Personnel assigned to the Department of Labor's Division of
Cost Determination and the Defense Contract Audit Agency.
(7) Personnel assigned to the Division of Acquisition Management
Services.
(8) Members of the Procurement Review Board.
(9) The Office of Inspector General.
(10) Other Government employees authorized by the contracting
officer.
(11) Supervisors, at any level, of the personnel listed in this
paragraph (a).
(b) The originator of information that may be source selection
information must consult with the contracting officer or the
procurement officer, who must determine whether the information is
source selection information. DOL personnel responsible for preparing
source selection information as defined in FAR 2.101 must assure that
the material is marked with the legend in FAR 3.104-4 at the time the
material is prepared.
(c) Unless marked with the legend ``SOURCE SELECTION INFORMATION--
SEE FAR 3.104-4,'' draft specifications, purchase descriptions, and
statements of work could erroneously be released during a market survey
in order to determine the capabilities of potential competitive sources
(see FAR 7.1 and 7.10).
2903.104-7 Violations or possible violations of standards of conduct.
(a) The Procurement Executive is the individual designated to
receive the contracting officer's report of violations.
(b) The HCA or designee must refer all information describing an
actual or possible violation to the Associate Solicitor for Legislation
and Legal Counsel (LLC), the Procurement Executive and Inspector
General staff.
Subpart 2903.2--Contractor Gratuities to Government Personnel
2903.203 Reporting suspected violations of the Gratuities clause.
Contractor gratuities offered to Government personnel are subject
to the restriction under the Standards of Ethical Conduct for the
Employees of the Executive Branch, 5 CFR Part 2635.
2903.204 Treatment of violations.
Any suspected violations of FAR Subpart 3.2 and the clause at FAR
52.203-3, Gratuities, must be reported to the Office of Inspector
General. The authority to determine whether a violation of the
Gratuities clause by the contractor, its agent, or another
representative, has occurred and the appropriate remedies are delegated
to the HCA.
Subpart 2903.6--Contracts With Government Employees or
Organizations Owned or Controlled by Them
2903.601 Policy.
In addition to restrictions placed on current federal government
employees, 18 U.S.C. 207 places some restrictions on contracting with
former officers, employees, and elected officials of the executive and
legislative branches. Under these prohibitions, contracts with former
employees are prohibited for a period of one year from the date of
severance of duties unless an exception is granted as set forth in
2903.602.
2903.602 Exceptions.
(a) In accordance with FAR 3.602, only when there is a most
compelling reason to do so, is the ASAM authorized to except a contract
from the policy in FAR 3.601, after the Procurement Review Board and
the agency ethics official have reviewed and recommended approval of
the exception. However, when time does not permit, the ASAM may
unilaterally approve an exception. The exception and information
supporting the exception must be provided to the contracting officer
for their official records.
(b) When an exception under this subpart is requested, it is
submitted through the director of the cognizant program office to the
HCA. In the procurement request, the director must describe the basis
for the exception from the restrictions of FAR 3.601.
(c) The Department of Labor may enter into a negotiated contract or
an amendment to an existing contract with former employees of DOL
within one year of separation (or with firms in which former employees
are known to have a substantial interest) only after review and
recommendation for approval by the agency ethics official, the
Procurement Review Board, and written approval by the ASAM.
(d) Approval of a decision to grant an exception as provided in the
section must be documented by a written findings and determination
prepared by the requesting official for signature by the Assistant
Secretary for Administration and Management. The determination and
findings must document compliance with FAR 3.603, FAR 9.5 and DOLAR
2909.5; specify the compelling reason(s) for award; and be placed in
the contract files and the files of the PRB.
PART 2904--ADMINISTRATIVE MATTERS
Subpart 2904.6--Contract Reporting
Sec.
2904.601 Record requirements.
2904.602 Federal Procurement Data System.
Subpart 2904.8--Government Contract Files
2904.800-70 Contents of contract files.
Appendix A to Part 2904
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2904.6--Contract Reporting
2904.601 Record requirements.
Appendix A to Part 2904 contains a list of recurring reports
requested of the Department of Labor. Unless otherwise noted,
procurement offices must submit the information identified to the
Division of Acquisition Management Services for consolidation into a
single report.
2904.602 Federal Procurement Data System.
(a) DOL's data collection point is the Business Operations Center,
Division of Acquisition Management Services, U.S. Department of Labor,
200 Constitution Avenue. NW., Washington, DC 20210.
(b) The SF 279, Individual Contract Action Report (over $25,000),
and SF 281, Summary of Contract Actions of $25,000 or less, are due by
the tenth day of each month.
Subpart 2904.8--Government Contract Files
2904.800-70 Contents of contract files.
(a) The reports listed in Appendix A to this part are applicable to
the Department of Labor.
(b) HCAs must be responsible for establishing standard contract
files for
[[Page 49004]]
their contracting activities. The HCA must provide one or more
representative contract files to the Director, Division of Acquisition
Management Services (DAMS) as requested for comment.
Appendix A to Part 2904
----------------------------------------------------------------------------------------------------------------
Title of report Reference Date due Submitted to
----------------------------------------------------------------------------------------------------------------
1. Report of Proposed Federal 29 CFR 1.4............. Annually; 20-Aug....... ESA Davis Bacon.
Construction*.
2. Contractor Report of Government FAR Chapter 45......... Annually; 31-Oct....... ASC.
Property*.
3. Major Preference Program Goals and DLMS 2 1000............ By the 20th of each OSBP.
Achievements Report*. Month.
4. Semi-annual Labor Enforcement FAR Chapter 22; 29 CFR Semi-annually; April 25 ESA Service Contract
Report. 5.7(b). and 25-Oct. Act.
5. A-76 & FAIR Act Inventory......... FAIR ACT & OMB MEMO.... June 30th of each year. OAMS.
6. SF 281, FPDS Summary Contract FAR Subpart 4.6........ Quarterly; January 25, DAMS.
Action Report ($25,000 or Less). April 25, July 25, and
25-Oct.
7. SF 294, Subcontracting Report for FAR Subpart 19.7 SF 294 Semi-annually; April contracting officer.
Individual Contracts. 30; 30-Oct.
8. SF 295, Summary Subcontract Report FAR Subpart 19.7....... Semi-annually March 30, contracting officer.
September 30.
9. Value Engineering Report*......... OMB Circular A-131..... Annually; 7-Dec........ DAMS.
10. Report on Federal Support to Section 3(a)(7) of the Annually; O/A, 15-May.. Upon request, From NSF.
Universities, Colleges, and National Science
Nonprofit Institutions. Foundation(NSF) Act.
11. Procurement Forecast, Initial and Pub. L. 100-656........ Sept 15 (Init.) and Apr DAMS
Update. 15 (Update).
----------------------------------------------------------------------------------------------------------------
For those reports with an (*), if there was no activity for the period being reported, a negative response for
the period must be submitted to the requisitioning office.
SUBCHAPTER B--ACQUISITION PLANNING
PART 2905--PUBLICIZING CONTRACT ACTIONS
Subpart 2905.1--Dissemination of Information
Sec.
2905.101 Methods of disseminating information.
Subpart 2905.2--Synopsis of Proposed Contract Actions
2905.202 Exceptions.
Subpart 2905.4--Release of Information
2905.402 General public.
2905.403 Requests from Members of Congress.
2905.404 Release procedures.
Subpart 2905.5--Paid Advertisements
2905.502 Authority.
2905.503 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2905.1--Dissemination of Information
2905.101 Methods of disseminating information.
Contracting officers may only use the Government Point of Entry
(GPE) for synopsis and dissemination of information concerning
procurement actions. The Division of Acquisition Management Services
manages the DOL's account.
Subpart 2905.2--Synopsis of Proposed Contract Actions
2905.202 Exceptions.
The Assistant Secretary for Administration and Management is
authorized to make the determination prescribed in FAR 5.202(b). A
written determination documenting the reasons why advance notice is not
appropriate or reasonable must be submitted by the HCA for appropriate
action including communication with the officials listed in FAR
5.202(b).
Subpart 2905.4--Release Of Information
2905.402 General public.
(a) Unless the HCA determines that disclosure would be prejudicial
to the interests of DOL, the bidder's mailing list or solicitation
mailing list may be released upon request.
(b) Any request for release of information is subject to the
Freedom of Information Act and FAR 24.2.
2905.403 Requests from Members of Congress.
All proposed responses to Congressional inquiries must be prepared
and forwarded for coordination with the Office of the Solicitor and the
Office of Congressional and Intergovernmental Affairs to determine
whether circumstances exist that will allow the release of additional
information. In such instances, the Congressional requestor must be
furnished an interim reply providing the information that is
releasable. The interim reply must describe the problem that precludes
release of any requested materials, and describe generally what steps,
if any, are being taken to make such information available.
2905.404 Release procedures.
Heads of contracting activities are authorized to release long-
range acquisition estimates under the conditions in FAR 5.404-1.
Subpart 2905.5--Paid Advertisements
This subpart provides policies and procedures for the procurement
of paid advertising as covered by 5 U.S.C. 302, 44 U.S.C. 3701, 3702,
and 3703.
2905.502 Authority.
When it is deemed necessary to use paid advertisements in
newspapers and trade journals, written authority for such publication
may be obtained from the HCA or designee.
2905.503 Procedures.
(a) Prior to obtaining HCA approval, an agency should seek legal
review to determine whether it has appropriate legal authority for
advertising. The HCA exercising the authority delegated by 2905.502
must do so in accordance with the procedures set forth in FAR 5.503 and
those in this section.
[[Page 49005]]
(b) Requests for procurement of advertising must be accompanied by
written authority to advertise or publish which sets forth
justification and includes the names of newspapers or journals
concerned, frequency and dates of proposed advertisements, estimated
cost, and other pertinent information.
PART 2906--COMPETITION REQUIREMENTS
Subpart 2906.3--Other Than Full and Open Competition
Sec.
2906.301 Policy.
2906.303 Justifications.
Subpart 2906.5--Competition Advocates
2906.501 Requirement.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2906.3--Other Than Full and Open Competition
2906.301 Policy.
(a) Department of Labor acquisitions must comply with the
Department of Labor Manual Series (DLMS) 2, Chapter 830 (available for
review on the Department of Labor's website or by mail from the
Director, Division of Acquisition Management Services, 200 Constitution
Ave., NW., Washington, DC 20210-0001). Any proposed noncompetitive
acquisition in excess of the simplified acquisition threshold must be
fully justified and, if required by the DLMS, submitted to the DOL
Procurement Review Board and approved by the Assistant Secretary for
Administration and Management and, in the case of research and
development contracts, also by the Assistant Secretary for Policy.
(b) With the exception of contracts for advisory and assistance
services or for research and development, the contracting officer has
the authority below the simplified acquisition threshold to approve
sole source contracts. The contracting officer is responsible for
assuring that proposed acquisitions below the simplified acquisition
threshold are in compliance with FAR and DOLAR requirements regarding
competition.
2906.303 Justifications.
The authority of the agency head to determine that only specified
make and models of technical equipment will satisfy the agency's need
under FAR 6.302-1 is delegated to the HCA.
Subpart 2906.5--Competition Advocate
2906.501 Requirement.
The Assistant Secretary for Administration and Management must
appoint a Competition Advocate for the Department of Labor. The
appointment will be predicated on an understanding of the competition
requirements in the FAR, and particularly small business programs.
PART 2907--ACQUISITION PLANNING
Subpart 2907.1--Acquisition Plans
Sec.
2907.105 Contents of written acquisition plans.
2907.107 Orders against Federal Supply Schedule contracts,
Governmentwide acquisition contracts (GWACs), or other existing
indefinite-delivery contracts.
Subpart 2907.3--Contractor Versus Government Performance
2907.300 Scope of subpart.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2907.1--Acquisition Plans
2907.105 Contents of written acquisition plans.
The Department of Labor has implemented its acquisition planning
system in compliance with FAR 7.1 and internal procedures provided in
DLMS 2 Section 834. The annual forecast is available for review from:
http://www.apps.dol.gov/contract grant/index.htm.
2907.107 Additional requirements for acquisitions involving bundling.
The FAR requirements for justification, review, and approval of
bundling of contract requirements also apply to an order from a Federal
Supply Schedule contract, Governmentwide acquisition contract, or other
indefinite-delivery contract if the requirements consolidated under the
order meet the definition of ``bundling'' at FAR 2.101.
Subpart 2907.3--Contractor Versus Government Performance
2907.300 Scope of subpart.
The Department of Labor's FAIR Act inventory of commercial
activities performed by federal employees and inherently governmental
functions may be accessed on the Internet at: www.dol.gov under ``Doing
Business with the Department of Labor.''
PART 2908--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 2908.4--Federal Supply Schedules
Sec.
2908.404 Using Schedules.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2908.4--Federal Supply Schedules
2908.404 Using Schedules
Small business considerations, procedures regarding both prime and
subcontracting and clearances specified in DOLAR 2919 apply to GSA
Federal Supply Schedule Orders above the simplified acquisition
threshold. Procedures to be followed may be modified by the OSBP as
appropriate in order to comply with GSA Federal Supply Schedule
procedures (e.g. first tier contracts may be required to report their
commercial subcontracting goals to the DOL Office of Small Business
Programs).
PART 2909--CONTRACTOR QUALIFICATIONS
Subpart 2909.1--Responsible Prospective Contractors
Sec.
2909.105 Procedures.
Subpart 2909.4--Debarment, Suspension, and Ineligibility
2909.402 Policy.
2909.405 Effect of listing.
2909.405-1 Continuation of current contracts.
2909.406 Debarment.
2909.406-1 General.
2906.407 Suspension.
2909.407-1 General.
Subpart 2909.5--Organizational Conflicts of Interest
2909.503 Waiver.
2909.506 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2909.1--Responsible Prospective Contractors
2909.105 Procedures.
Before awarding a contract, the contracting officer must make a
written determination of the otherwise successful bidder's/offeror's
responsibility in accordance with FAR 9.105. In addition to past
performance information, the contracting officer must insure that the
proposed contractor, and any subcontractor representing more than
$25,000 in goods or services, does not appear in the ``List of Parties
Excluded from Federal Procurement'' (available on the Internet at
www.epls.arnet.gov. In addition, contracting officers should base their
determination of contractor responsibility on a review of the company's
``Summary or Financial Report'' from Dun & Bradstreet (available on the
internet for a fee from http://www.dnb.com/).
[[Page 49006]]
Subpart 2909.4--Debarment, Suspension, and Ineligibility
2909.402 Policy.
(a) This subpart prescribes DOL policies and procedures governing
the debarment and suspension of contractors, the listing of debarred
and suspended contractors, contractors declared ineligible (see FAR
9.403) and distribution of the list. This subpart does not apply to
Department of Labor debarments or suspensions issued for Davis-Bacon
Act and Davis-Bacon Related Act violations, Service Contract Act
Violations, Affirmative Action/Equal Employment Opportunity Violations,
or violations under other statutes administered by the Department of
Labor.
(b) Contracting activity officials shall have the following
responsibilities.
(1) Heads of contracting activity (HCA) shall:
(i) Provide an effective system to ensure that contracting staffs
consult the ``List of Parties Excluded from Federal Procurement and
Nonprocurement Programs'' at http://epls.arnet.gov/ before soliciting
offers, awarding or extending contracts, or consenting to subcontract.
(ii) Consider debarment or suspension of a contractor when cause,
as defined under FAR 9.406-2 for debarment and FAR 9.407-2 for
suspension, is shown. Contracting officers should consult with their
appropriate legal counsel before making a decision to initiate
debarment or suspension proceedings. If a determination is made that
available facts do not justify beginning debarment or suspension
proceedings, the file should be documented accordingly. This
determination is subject to reconsideration if warranted by new
information.
(iii) When the decision is made to initiate debarment and/or
suspension of a contractor, the Procurement Executive must prepare a
notice in accordance with FAR 9.406-3(c) or FAR 9.407-3(c). The draft
notice, along with the administrative file containing all relevant
facts and analysis must be forwarded to the PE, as the debarring and
suspending official, following review by the activity's legal counsel.
(2) The Procurement Executive shall:
(i) Review the notice and administrative file for sufficiency and
provide for review by other DOL officials as considered appropriate;
(ii) In accordance with FAR 9.406-3(c) or FAR 9.407-3(c), if it is
determined that action is warranted, give the contractor prompt notice
of the proposed debarment or suspension;
(iii) Direct additional fact-finding as necessary when material
facts are in dispute.
(iv) Notify the contractor and any affiliates involved of the final
decision to debar or suspend, including a decision not to debar or
suspend, in accordance with FAR 9.406-3(c) and FAR 9.407-3(c).
(v) Be responsible for accomplishing the actions required in FAR
9.404(c) within five working days after debarring or suspending a
contractor or modifying or rescinding such an action.
(vi) Maintain Department-wide records of debarred or suspended
contractors in accordance with FAR 9.404.
2909.405 Effect of listing.
(a) Contractors debarred, suspended, or proposed for debarment are
excluded from receiving contracts, and agencies must not solicit offers
from, award contracts to, or consent to subcontract with these
organizations, unless the HCA determines in writing that there is a
compelling reason for such action and the Assistant Secretary for
Administration and Management approves such determinations.
(b) Bids received from any listed contractor in response to an
invitation for bids must be entered on the abstract of bids, and
rejected unless the HCA determines in writing that there is a
compelling reason to consider the bid and the ASAM approves such
action.
(c) Proposals, quotations, or offers received from any listed
contractor shall not be evaluated for award or included in the
competitive range, nor shall discussions be conducted with a listed
offeror during a period of ineligibility, unless the HCA determines in
writing that there is a compelling reason to do so and the ASAM
approves such action.
2909.405-1 Continuation of current contracts.
(a) At the time an option is being exercised, contracting officers
must review the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs. If a contractor or significant subcontractor
is identified in the listing, the contracting officer must make a
written determination either to proceed or to terminate the contract,
and must explain the rationale for the decision. In accordance with FAR
9.405-1, contracting officers may continue contracts or subcontracts in
existence at the time a contractor is suspended or debarred, unless it
is determined that termination of the contract is in the best interest
of the Government. The contracting officer must make such determination
in writing, after consulting with the contracting officer's technical
representative and legal counsel. The determination must be approved by
the HCA.
(b) Contracting activities must not renew or otherwise extend the
duration of current contracts, or consent to subcontracts, with
contractors debarred, suspended, or proposed for debarment, unless the
HCA states, in writing, the compelling reasons for renewal or extension
and the ASAM approves such action.
2909.406 Debarment.
2909.406-1 General.
(a) The Procurement Executive (PE) is the debarring official for
DOL and is authorized to debar a contractor for any of the causes in
FAR 9.406-2, using the procedures in 2909.406-3.
(b) The Procurement Executive is authorized to make an exception,
regarding debarment by another agency debarring official in accordance
with the conditions in FAR 9.406-1(c).
2909.406-3 Procedures.
(a) Investigation and referral. Whenever a DOL employee knows a
cause for debarment, as listed in FAR 9.406-2, the appropriate HCA
affected must be notified. The contracting officer must consult with
the Office of the Solicitor and the Office of the Inspector General, as
appropriate, and submit a formal recommendation documenting the cause
for debarment to the PE.
(b) Notice of proposal to debar. Based upon review of the
recommendation to debar and consultation with the Office of the
Solicitor and Office of the Inspector General, as appropriate, the PE
must initiate proposed debarment by taking the actions listed in FAR
9.406-3(c) and advising the contractor of DOL's rules under 2909.4.
(c) Fact-finding proceedings. For actions listed under FAR 9.406-
3(b)(2), the PE must afford the contractor the opportunity to appear at
an informal fact-finding proceedings as required by FAR 9.406-
3(b)(2)(i). The proceeding must be conducted by the Office of
Administrative Law Judges and must be held at a date and location
reasonably convenient to the parties concerned. Subject to the
provisions of 29 CFR Part 18, entitled ``Rules Of Practice And
Procedure For Administrative Hearings Before The Office Of
Administrative Law Judges'', the contractor and any specifically named
affiliates, may be represented by counsel or any duly authorized
representative. Either party may call witnesses. The proceedings must
be conducted expeditiously and in
[[Page 49007]]
such a manner that each party will have a full opportunity to present
all information considered pertinent to the proposed debarment. A
transcript of the proceedings must be made available to the contractor
under the conditions in FAR 9.406-3(b)(2)(ii).
(d) Decision and notice. The PE shall make a decision on imposing
debarment in accordance with the procedures in FAR 9.406-3(d), findings
of fact of the Administrative Law Judge, and the conditions in FAR
9.406-4 and 9.406-5. Notice of the decision must be provided to the
contractor and any affiliates involved in accordance with the
procedures in FAR 9.406-3(e).
2909.407 Suspension.
(a) The Procurement Executive is the suspending official for DOL
and is authorized to suspend a contractor for any of the causes in FAR
9.407-2, using the procedures in 2909.406-3.
(b) The Procurement Executive is authorized to make an exception,
regarding suspension by another agency suspending official, under the
conditions in FAR 9.407-1(d).
2909.407-1 General.
(a) Investigation and referral. Whenever a DOL employee knows a
cause for suspension, as listed in FAR 9.407-2, the appropriate HCA
affected must be notified. The HCA must consult with the Office of the
Solicitor and the Office of the Inspector General, as appropriate, and
submit a formal recommendation documenting the cause for suspension, to
the Procurement Executive.
(b) Notice of suspension. Based upon review of the recommendation
to suspend, and consultation with the Office of the Solicitor and the
Office of the Inspector General, as required, the PE will initiate
suspension by taking the actions listed in FAR 9.407-3(c) and advising
the contractor of DOL's rules under this subpart.
(c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the Procurement Executive must afford the contractor the
opportunity to appear at informal proceedings, as required by FAR
9.407-3(b)(2)(i). Either party may call witnesses. The proceedings must
be conducted expeditiously and in such a manner that each party will
have a full opportunity to present all information considered pertinent
to the proposed suspension.
(d) Suspension decisions. The Procurement Executive must make a
final decision on suspension as prescribed in FAR 9.407-3(d). Notice of
the decision must be provided to the contractor and any affiliates
involved, in accordance with the provisions in FAR 9.407-3(d)(4).
Subpart 2909.5--Organizational and Consultant Conflicts of Interest
2909.503 Waiver.
(a) The PE is delegated authority by the ASAM to waive any general
rule or procedure in FAR 9.5 when its application in a particular
situation would not be in the Government's best interest.
(b) Requests for waivers must be made by the HCA to the PE. Each
request must include:
(1) An analysis of the facts involving the potential or actual
conflict including benefits and detriments to the Government and
prospective contractors;
(2) A discussion of the factors which preclude avoiding,
neutralizing, or mitigating the conflict; and
(3) Identification of the provision(s) in FAR 9.5 to be waived.
(c) In making determinations under this subpart the PE must request
the opinion of the Office of the Solicitor, Division of Legislation and
Legal Counsel.
2909.506 Procedures.
(a) If a prospective contractor disagrees with the decision of a
contracting officer regarding an organizational conflict of interest
and requests higher level review as referred to in FAR 9.506 the matter
must be referred to the Office of the Solicitor, Associate Solicitor
for Legislative and Legal Counsel, and the Director, Division of
Acquisition Management Services.
(b) Referrals must be made by the head of the contracting agency
concerned and include the contracting officer's decision and the
position of the prospective contractor.
PART 2910--MARKET RESEARCH
Sec.
2910.002 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
2910.002 Procedures.
(a) In accordance with FAR 6.302-1(c), purchase descriptions must
not specify a product, or specific feature of a product, peculiar to a
manufacturer unless they are justified to the contracting officer in
writing by the office initiating the purchase request. The
justification must state that the product, or specific product feature,
is essential to the Government's requirements and other similar
products or features will not meet these requirements. This
determination must be signed by a representative of the office
originating the request and must accompany the purchase requisition
submitted to the appropriate contracting office. If such a
justification is not made, the contracting officer may assume that
another make and model, or a generic product could equally meet the DOL
requirement.
(b) In accordance with FAR 10.002(b), the requisitioning office
must submit to the contracting officer information demonstrating that a
variety of products from various commercial sources have been
considered. This requirement is not necessary for required sources (See
FAR 8.001). Orders to be placed against non-mandatory sources, such as
the Federal Supply Schedules, or other Governmentwide Acquisition
Contracts, should include product information concerning multiple
sources based on research from the Government web site or other
sources. When documented in this manner, the contracting officer may
rely on this information in developing a procurement strategy, or for
documenting the comparison of catalogs or pricelists.
PART 2911--DESCRIBING AGENCY NEEDS
Subpart 2911.1--Selecting And Developing Requirements Documents
Sec.
2911.103 Market acceptance.
Subpart 2911.5--Liquidated Damages
2911.501 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2911.1--Selecting and Developing Requirements Documents
2911.103 Market acceptance.
The authority of the Head of an Agency under FAR 11.103(a), to
require offerors to demonstrate that the items offered have either
achieved commercial market acceptance or been satisfactorily supplied
to an agency under current or recent contracts for the same or similar
requirements, and otherwise meet the item description, specifications,
or other criteria prescribed in the public notice and solicitation, is
delegated to the HCA.
Subpart 2911.5--Liquidated damages
2911.501 Policy.
In accordance with FAR 11.501(d), the authority of the Head of
Agency to recommend to the Department of Treasury, Commissioner,
Financial Management Services, that the amount of a contractor's
liquidated damages be waived or reduced in whole or in part, is
delegated to the HCA.
[[Page 49008]]
PART 2912--ACQUISITION OF COMMERCIAL ITEMS
Subpart 2912.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
Sec.
2912.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2912.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Items
2912.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
In accordance with FAR 12.302(c), a request for waiver to tailor
terms inconsistent with customary commercial practice must be
documented in a written justification by the contracting officer, and
may be approved by the HCA on an individual or class basis.
PART 2913--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 2913.1--Procedures
Sec.
2913.106-3 Soliciting competition, evaluation of quotations or
offers, award and documentation.
2913.2--Actions at or Below the Micropurchase Threshold
2913.3--Simplified Acquisition Methods
2913.301 Governmentwide Commercial Purchase Card.
2913.307 Forms.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2913.1--Procedures
2913.106-3 Soliciting competition, evaluation of quotations or offers,
award and documentation.
(a) In accordance with FAR 13.106-3(b), simplified acquisition
files must contain documentation of the factors considered in making an
award in excess of the micro-purchase threshold. When other than the
lowest responsive quotation from a responsible supplier is used as the
basis for a purchase, the contracting officer must identify the basis
(i.e. best value) of the award and include in the purchase file
documentation of the reasons for rejecting any lower quotation and the
name of the individual responsible for making the determination to
award to other than the lowest priced quotation. The contracting
officer has broad discretion in determining the award of a purchase
order, which may be based on the factors listed in FAR 13.106-3. This
requirement does not necessitate a separate determination if the
procurement file contains preprinted standardized classifications for
award.
Subpart 2913.2--Actions at or Below the Micro-Purchase Threshold
The Government commercial purchase card must be used in preference
to other methods of procurement for purchases up to the micropurchase
threshold. Other small purchase methods (Blanket Purchase Agreements,
third party drafts, and purchase orders) may be used in lieu of the
Government purchase card when it is more cost-effective or practicable.
Subpart 2913.3--Simplified Acquisition Methods
2913.301 Governmentwide Commercial Purchase Card.
(a) The Government purchase card has far fewer requirements for
documentation than other methods of purchasing. However, the same legal
restrictions apply to credit card purchases that apply to other
purchases using appropriated funds. If a purchase cardholder has
questions about the lawfulness of a particular purchase, he or she must
initially consult their appropriate office purchase card administrator,
who will consult the Office of the Solicitor as necessary.
(b) GAO decisions surrounding the concept of the ``availability of
appropriations'' are often stated in terms of whether appropriated
funds are or are not ``legally available'' for a given expenditure.
Restrictions on the purposes for which appropriated funds may be used
come from a variety of sources, including the DOL Appropriations Acts,
and decisions of the Comptroller General and his predecessor, the
Comptroller of the Treasury.
(c) HCAs, Administrative Officers, and contracting officers are
encouraged to review the GAO publication entitled Principles of Federal
Appropriations Law. This document must be consulted when developing
Office/Agency Purchase/Credit Card Program procedures. A number of the
more common restrictions which ``accounting officers of the
Government'' have had frequent occasion to consider and apply include,
for example:
(1) Payment of attorney's fees;
(2) Purchase of food, entertainment or recreation;
(3) Payment of personal membership fees; and
(4) Payment of personal expense items such as gifts for employees,
and entry fees for contests.
2913.307 Forms.
(a) In accordance with FAR 13.307, Agencies may use order forms
other than the Standard Form (SF) 1449 and may print on those forms the
clauses considered to be suitable for purchases. Alternate forms should
conform with the Standard Form to the maximum extent practicable.
(b) The SF 30 is to be used to modify a purchase order.
PART 2914--SEALED BIDDING
Subpart 2914.4--Opening of Bids and Award of Contract
Sec.
2914.404-1 Cancellation of invitations after opening.
2914.407-3 Other mistakes disclosed before award.
2914.408 Award.
2914.408-1 General.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2914.4--Opening of Bids and Award of Contract
2914.404-1 Cancellation of invitations after opening.
The authority of the agency head in FAR 14.404-1(c) and (f) to make
a written determination to cancel an invitation for bids and reject all
bids after opening and to authorize completion of the acquisition
through negotiation, is delegated to the HCA.
2914.407-3 Other mistakes disclosed before award.
(a) The authority to make determinations, as conferred by FAR
14.407-3 (e) is delegated to the HCA, without power of redelegation,
but only after consultation with the Office of the Solicitor. All such
determinations shall be documented in the contract file.
(b) The following procedures must be followed when submitting
doubtful cases of mistakes in bids to the Comptroller General for an
advance decision, as provided by FAR 14.407-3(i).
(1) Requests must be made by the HCA after consultation with the
Office of Solicitor.
(2) Requests must be in writing, dated, signed by the requestor,
addressed to the Comptroller General of the United States, General
Accounting Office, Washington, DC 20548, and contain the following:
(i) The name and address of the party requesting the decision; and
(ii) A statement of the question to be decided, a presentation of
all relevant
[[Page 49009]]
facts, a statement of the requesting party's position with respect to
the question, and copies of all pertinent records and supporting
documentation.
2914.408 Award.
2914.408-1 General.
(a) When only one bid is received in response to an invitation for
bids, such bid may be considered and accepted if the contracting
officer makes a written determination that:
(1) The specifications used in the invitation were not unduly
restrictive,
(2) Adequate competition was solicited and it could have been
reasonably assumed that more than one bid would have been submitted,
(3) The price is reasonable, and
(4) The bid is otherwise in accordance with the invitation for
bids.
(b) Such a determination must be placed in the contract file.
PART 2915--CONTRACTING BY NEGOTIATION
Subpart 2915.4--Contract Pricing
Sec.
2915.405-70 Determining fair and reasonable price.
Subpart 2915.5--Preaward, Award, and Postaward Notifications, Protests,
and Mistakes
2915.508 Discovery of mistakes.
Subpart 2915.6--Unsolicited Proposals
2915.604 Agency points of contact.
2915.605 Content of unsolicited proposals.
2915.606 Agency procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2915.4--Contract Pricing
2915.405-70 Determining fair and reasonable price.
(a) Where the contractor insists on a price or demands a profit or
fee that the contracting officer considers unreasonable, and the
contracting officer has taken all authorized actions to resolve the
matter (see FAR 15.402), the contract action must be referred to the
HCA for final resolution.
(b) Resolution under paragraph (a) of this subsection, must be
documented and signed by the HCA, and included in the contract file.
Subpart 2915.5--Preaward, Award, and Postaward Notifications,
Protests, and Mistakes
2915.508 Discovery of mistakes.
(a) The HCA is authorized to make the administrative determinations
in FAR 15.508 after consultation with the Office of the Solicitor as
required by FAR 14.407-4. This authority may not be redelegated.
(b) The contracting officer must process a mistake and prepare a
case file in accordance with the requirements of FAR 14.407-4(e)(2).
The file must be submitted to the HCA for final determination.
Subpart 2915.6--Unsolicited Proposals
2915.604 Agency points of contact.
(a) HCAs shall be the preliminary contacts for unsolicited
proposals. This responsibility may be delegated.
(b) HCAs must establish within their agencies procedures for
handling unsolicited proposals to ensure that unsolicited proposals are
controlled, evaluated, safeguarded and disposed of in accordance with
FAR 15.6.
(c) The HCA must not forward for consideration an unsolicited
proposal, if the proposal resembles an upcoming solicitation, or a
procurement identified in the current annual acquisition plan.
2915.605 Content of unsolicited proposals.
In addition to the contents required by FAR 15.605, unsolicited
proposals for research should contain a commitment by the offeror to
include cost-sharing, or should represent a significant cost savings to
the Department of Labor.
2915.606 Agency procedures.
When an unsolicited proposal is received by an official of the
Department of Labor, the recipient of the proposal must forward it to
the HCA. The HCA must address the requirements of FAR 15.604. The HCA
must determine if there is an office(s) within the Department of Labor
whose mission could be impacted by the proposal. If there is, the HCA
must designate a recipient within that office as an ``assignee'', and
take the following action:
(a) Within seven (7) working days of receipt, the HCA must forward
the proposal to the assignee along with instructions concerning the
security, review and disposition of the document.
(1) Inform the offeror of this transfer in writing (preferably by
facsimile or other electronic means).
(2) Within one (1) month of receipt of the unsolicited proposal by
the assignee, the office receiving the proposal must determine the
merit of the unsolicited proposal.
(i) If the office finds insufficient merit to consider the
unsolicited proposal further, then a letter will be sent to inform the
offeror that their proposal will not be considered further, and is not
being retained.
(ii) If, after a comprehensive evaluation as defined by FAR 15.606-
2, the office finds merit in the proposal, it must consult with a DOL
contracting officer for direction in complying with FAR 15.607. If not
excluded by a condition of FAR 15.607(a), a requisition may be prepared
in accordance with FAR 15.607(b). If the requirement exceeds the
simplified acquisition threshold inclusive of options then a request
must be prepared for the Procurement Review Board in accordance with
Department of Labor procedures stated in Department of Labor Manual
Series 2-830 (available by mail from the Division of Acquisition
Management Services).
(b) If within one (1) month of receipt (by the HCA) no assignee can
be identified, the HCA must notify the offeror that the proposal is not
being considered further.
PART 2916--CONTRACT TYPES
Sec.
2916.000 Scope of part.
Subpart 2916.5--Indefinite-Delivery Contracts
2916.505 Ordering.
Subpart 2916.6--Time-and-Materials, Labor-Hour, and Letter Contracts
2916.603-2 Application.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
2916.000 Scope of part.
This part describes types of contracts that may be used in
acquisitions. It further prescribes policies and procedures for
implementing contracts.
Subpart 2916.5--Indefinite-Delivery Contracts
2916.505 Ordering.
In accordance with FAR 16.505(b)(5), the Department of Labor Task
Order and Delivery Order Ombudsman is the DOL Competition Advocate (see
DOLAR Part 2902).
Subpart 2916.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
Purchase orders for services above $25,000, task orders against DOL
contracts, and GSA for orders against GSA or other Governmentwide
contracts for services must comply with the provisions of FAR 16.505.
2916.603-2 Application.
The HCA is authorized to extend the period for definitization of a
letter contract required by FAR 16.603-2(c) in extreme cases, where it
is determined in writing that such action is in the best interest of
the Government.
[[Page 49010]]
PART 2917--SPECIAL CONTRACTING METHODS
Sec.
2917.000 Scope of part.
Subpart 2917.2--Options
2917.207 Exercising options.
Subpart 2917.5 --Interagency Acquisitions Under The Economy Act
2917.500 Scope of subpart.
2917.501 Definitions.
2917.502 General.
2917.503 Determinations and findings requirements.
2917.504 Ordering procedures.
2917.504-70 Signature authority and Internal Procedures.
Authority: 5 U.S.C. 301; 31 U.S.C. 1535; 40 U.S.C. 486(c).
2917.000 Scope of part.
This part implements policies and procedures stated in FAR Part 17.
Subpart 2917.2--Options
The HCA may, in unusual circumstances, approve option quantities in
excess of the 50 percent limit prescribed in FAR 17.203(g)(2). The
documentation required by FAR 17.205(a) must include a written
justification to fully support the need for such action.
2917.207 Exercising options.
The contracting officer must use a standardized determination and
finding before exercising an option in accordance with FAR 17.207(f).
Subpart 2917.5--Interagency Acquisitions Under the Economy Act
2917.500 Scope of subpart.
This subpart establishes DOL policy and procedures to assure the
appropriate and consistent use of interagency acquisitions under the
Economy Act (31 U.S.C. 1535) as prescribed by FAR 17.5.
2917.501 Definitions.
Interagency Acquisition means a procedure by which a DOL agency
obtains needed supplies or services from, or through, another DOL
agency or Federal agency, and appropriated funds are obligated.
Interagency Agreement means the legal instrument used for an
interagency acquisition to exchange funds or property between two DOL
organizations, or between a DOL agency and another Federal agency. This
instrument is used when the DOL organization meets the definition of
either the Requesting Agency or the Servicing Agency.
Interagency Agreement and Interagency Acquisition does not include:
(1) Agreements involving supplies and services acquired from or
through mandatory sources, as described in FAR Part 8;
(2) Contracts with the Small Business Administration based upon
Section 8(a) of the Small Business Act or a HUBZone small business
under the Historically Underutilized Business Zone (HUBZone) Act of
1997;
(3) Cooperative agreements and grants; or
(4) Any agreement or acquisition, where a statute authorizes
exception.
Military Interdepartmental Procurement Request (MIPR) means a type
of interagency agreement used to place orders for supplies and non-
personal services with a military department.
Requesting Agency means the Federal agency that needs the supplies
or services, and is obligating the funds to provide for the costs of
performance.
Servicing Agency means the Federal agency which is providing the
supplies, or performing the services, directly or indirectly, and will
be receiving the funds to provide for the costs of performance.
2917.502 General.
(a) Policy. It is the policy of DOL to require that interagency
agreements are written to assure that the obligation of fiscal year
funds is valid, that statutory authority exists to obtain or perform
the stated requirements, that the stated requirements are consistent
with DOL's mission responsibilities, and that each agreement complies
with applicable laws and regulations.
(b) Applicability. The provisions of this subpart apply to
interagency acquisitions and agreements under the Economy Act.
(c) Appropriations principles. The appropriate use of interagency
acquisitions embodies several principles of Federal appropriations law.
(1) In order to record a valid obligation of appropriations, 31
U.S.C. 1501 imposes the requirements that interagency agreements be:
(i) A binding written agreement for specific goods or services to
meet an existing bona fide need;
(ii) For a purpose authorized by law; and
(iii) Executed and obligated by the receiving agency before the
expiration of available funds.
(2) The Economy Act authorizes interagency acquisitions, and
provides for payment in advance, as well as reimbursement to the
appropriation account to which the performance costs have been charged.
The Economy Act further authorizes the servicing agency, as an
alternative to fulfilling the requirement through internal resources,
to obtain the needed supplies or services by contract.
(3) An agreement entered into under the Economy Act is recorded as
an obligation by the requesting agency the same as a contract. However,
under the Economy Act, the obligated appropriations must be deobligated
upon the date of ``expiration'' of the appropriation account to the
extent that the servicing agency has not incurred obligations through
charged costs or under a contract.
(4) Within DOL, the DOL agencies have a number of statutory
authorities available for entering into interagency agreements. Each
DOL agency, in consultation with the Office of the Solicitor, must be
responsible for determining those authorities, as well as constraints
applicable to the use of advance payments and contractors, and set-up
procedures.
2917.503 Determinations and findings requirements.
Applicability. Before the execution of an interagency agreement
under the Economy Act, the contracting officer, or other authorized
official, must sign the determination required in FAR 17.503 and 31
U.S.C. 1535.
2917.504 Ordering procedures.
(a) Requests for the processing of interagency agreements must be
submitted to the procurement office serving the requisitioning office.
(b) The Procurement Request (PR) must state whether the work is to
be performed by a DOL organization, a Federal agency other than DOL, or
through one of these entities by a contractor.
(c) Where the Economy Act is to be used as the authority for an
interagency acquisition, the requisitioning office must include the
facts which support the conclusion that it is more economical to obtain
the required supplies or services through the proposed interagency
agreement, rather than by direct contract with a commercial concern.
Current market prices or recent procurement prices may be used in this
process.
(d) Orders placed under interagency agreements may take any form
that is legally sufficient and reflects the agreement of the parties.
(e) The contracting officer, or authorized official, must assure
compliance with the ordering procedures and payment provisions
[[Page 49011]]
prescribed in FAR 17.504 and FAR 17.505, and require inclusion of the
following provisions in all interagency agreements and/or orders placed
against them:
(1) Legislative authority;
(2) Period of performance;
(3) Dollar amount of agreement;
(4) Billing provisions, including the name and address of the
following offices:
(i) Designated office to receive the required deliverables; and
(ii) Designated office to receive billings and process payments;
(5) Modification and termination provisions; and
(6) Other provisions, as appropriate.
(f) The Contracting Officer must assure that each interagency
agreement or order placed against it includes a reference number
assigned by each of the parties. Such numbers must be assigned in
accordance with the existing procedures established by the respective
organizations.
(g) Modifications to existing interagency agreements may be
accomplished through the use of a SF 30, Amendment of Solicitation/
Modification of Contract, or through any other format acceptable to the
parties.
2917.504-70 Signature authority and internal procedures.
(a) A DOL contracting officer, HCA, Agency Head, or another
official designated by the ASAM in accordance with FAR 17.503(c), must
sign interagency agreements and/or orders placed against them which
will result in a procurement action by the requesting or servicing
agency.
(b) Internal procedures (DLMS 3-1700) require DOL Agency Heads to
provide notice to the Director, Executive Secretariat of the signing of
all new Federal Interagency Agreements and deleting expired agreements.
(c) Agencies should be aware that, in addition to the requirements
of this subpart, there are various other internal Departmental
procedures that apply to various types of agreements. Agencies should
consult with the Office of the Solicitor and the Office of the
Assistant Secretary for Administration and Management, as appropriate.
PART 2918--RESERVED
PART 2919--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
Sec.
2919.000 Scope of part.
Subpart 2919.2--Policies.
2919.201 General policy.
2919.202 Specific policies.
2919.202-1 Encouraging small business participation in acquisitions.
2919.202-2 Locating small Business sources.
Subpart 2919.5--Set-Asides for Small Business.
2919.502 Setting Aside Acquisitions.
2919.505 Rejecting Small Business Administration recommendations.
Subpart 2919.7--The Small Business Subcontracting Program.
2919.705-1 General Support for the Program.
2919.705-5 Awards involving subcontracting plans.
2919.705-6 Post-award responsibilities of the contracting officer.
2919.706 Responsibilities of the cognizant administrative
contracting officer.
Subpart 2919.8--Contracting with the Small Business Administration (The
8(a) Program).
2919.812 Contract Administration.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
2919.000 Scope of part.
This part implements FAR Part 19 and small business programs at the
Department of Labor.
Subpart 2919.2--Policies
2919.201 General Policy.
(a) It is the policy of the Department of Labor to provide maximum
practicable opportunities to small businesses in acquisitions.
(b) Management responsibilities for small and disadvantaged
business utilization are the responsibility of the Director, Office of
Small Business Programs (OSBP). This individual is responsible for
performing all functions and duties prescribed in FAR 19.2 including
appointing, as prescribed in FAR 19.201(d)(8), a small business
specialist (SBS) for each contract office. The Department of Labor
Manual Series (DLMS), Chapter 2 1000, addresses the implementation of
the preference programs in procurement including HUBZone,
Subcontracting Plans, Standard Form 294 (Subcontracting Report for
Individual Contracts), and the report, Standard Form 295 (Summary
Subcontracting Report) submission, et al.
(c) All DOL procurements over the simplified acquisition threshold,
whether being conducted via open market or by ordering from a pre-
existing contract vehicle such as GSA Schedule, must be reviewed and
receive a recommendation by the Office of Small Business Programs
(OSBP), the Department of Labor's Office of Small Disadvantaged
Business Utilization, prior to being advertised. The Acquisition
Screening and Review Form DL-1-2004 shall be used for this purpose and
the statement of work and market survey documentation shall be
submitted to OSBP with the request for review.
2919.202 Specific policies.
Contracting Officers, administrative officers and program
management shall ensure that procurements are structured and conducted
to afford small businesses the maximum practicable opportunity to
participate in DOL's prime and subcontracts. Administrative officers
will review requisitions, which will result in an award of $2 million
or more, using available information to certify whether the acquisition
would constitute a ``bundled contract'' under the definition provided
in FAR 2.101 in accordance with procedures established by the Office of
Small Business Programs. Each certification will be submitted to the
Division of Acquisition Management Services, and included with the
requisition to the Contracting Officer. Reports will be provided to the
Office of Small Business Programs.
2919.202-1 Encouraging small business participation in acquisitions.
During the performance of a contract, the contracting officer will
consider performance against subcontracting plan goals, objectives and
planned efforts before exercising an optional period of performance.
The Contracting Officer will document the evaluation of the
contractor's actual performance using SF-294 data compared to their
approved subcontracting plan goals.
2919.202-2 Locating small business sources.
Any procurement conducted on an unrestricted basis will include
solicitations to small businesses of each category with legislatively
established government-wide procurement goals (e.g. small, small
disadvantaged, women-owned small, HUBZone and service disabled veteran-
owned small businesses) to the extent practicable.
Subpart 2919.5--Set-Asides for Small Business
2919.502 Setting Aside Acquisitions.
Contracting Officers will conduct market surveys specifically to
determine whether procurements should be conducted via 8(a) procedures,
HUBZone procedures or as small business set-asides. If a reasonable
expectation exists that at least two responsible small businesses may
submit offers at fair market prices (three responsible small businesses
in
[[Page 49012]]
procurements via GSA Federal Supply Schedule), then the procurement
will be set aside for small business. Market surveys will be documented
in all procurement actions not reserved for small businesses.
2919.505 Rejecting Small Business Administration recommendations.
When the SBA Procurement Center Representative appeals a
``rejection of an SBA recommendation'' as referenced in FAR
19.505(b)&(c), the appeal must be referred to the Assistant Secretary
for Administration and Management who is authorized to make a final
decision.
Subpart 2919.7--The Small Business Subcontracting Program
2919.704 Subcontracting Plan Requirements
Contracting Officers will refer subcontracting plans to Office of
Small Business Programs for review and recommendation before awarding
contracts that require subcontracting plans. Contracting Officers will
document the substance of any agreement with the Contractor that
permits performance at less than the stated goals recommended by the
Office of the Small Business Programs.
2919.705-1 General Support for the Program.
Contracting Officers will make available a significant number of
award points for quality of the subcontracting plan. High rated
subcontract plans will incorporate the highest yield of subcontracting
to all categories of small businesses when compared to DOL or
separately negotiated agency subcontracting goals on a dollar and
percentage basis. Conversely, prime small businesses will be compared
favorably to large businesses with subcontract goals, but may also be
given the maximum score for qualifying under multiple small business
categories. Contracting Officers may also make available a significant
number of award points for performance against previous subcontracting
plan goals and efforts to achieve those goals.
2919.705-5 Awards involving subcontracting plans.
The Office of Small Business Programs will review subcontracting
plans and SF 295 submissions for performance against business goals
negotiated between the Department of Labor and the Small Business
Administration.
2919.705-6 Post-award responsibilities of the contracting officer.
(a) Even when a subcontracting plan was submitted to and approved
by OSBP before award, the contracting officer upon award, amendment, or
significant modification of a contract, must forward to the Director,
OSBP, a copy of the subcontracting plan that was incorporated into a
contract or contract modification.
(b) Each contracting activity must maintain a list of active prime
contracts containing subcontracting plans.
2919.706 Responsibilities of the cognizant administrative contracting
officer.
Contracting officers must collect annual and semiannual
subcontracting reports from contractors with established subcontracting
plans. Copies of the report, Standard Form 294 (Subcontracting Report
for Individual Contracts), and the report, Standard Form 295 (Summary
Subcontracting Report), must be forwarded to the Director, OSBP, not
later than the 30th day of the month following the close of the
reporting period. If the contractor has not met the goals for the
reporting period, the contracting officer will provide an
acknowledgement to the contractor and request corrective action to be
taken. If goals are not met in subsequent periods, the Contracting
officer must consider factors that would demonstrate a good faith
effort, and take appropriate action including assessing liquidated
damages in accordance with FAR 52.219-16, and/or not exercising
subsequent option periods.
Subpart 2919.8--Contracting With the Small Business Administration
(the 8(a) Program)
2919.812 Contract administration.
(a) Contracting officers, or designees, must conduct periodic
evaluations of the performance of an 8(a) contract at various stages of
the contract period of performance. Any problems encountered during the
performance evaluation, which cannot be resolved, must be referred to
OSBP for subsequent review and discussion with the appropriate SBA
official.
(b) The OSBP and SBA should be notified at least 45 days before
initiating final action to terminate an 8(a) contract.
PART 2920--2921 [RESERVED]
PART 2922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2922.1--Basic Labor Policies
Sec.
2922.101-3 Reporting labor disputes.
2922.101-4 Removal of items from contractor's facilities affected by
work stoppages.
2922.103-4 Approvals.
Subpart 2922.8--Equal Employment Opportunity
2922.802 General.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2922.1--Basic Labor Policies
2922.101-3 Reporting labor disputes.
Potential or actual labor disputes that may interfere with contract
performance must be reported by the contracting activity to the Office
of the Solicitor for legal advice or assistance. It may also become
necessary to seek advice or assistance from the National Office of the
Federal Mediation and Conciliation Service, 2100 K Street, NW,
Washington, DC, 20006, or other mediation agencies.
2922.101-4 Removal of items from contractor facilities affected by
work stoppages.
Before initiating any action under FAR 22.101-4 for removal of
items from contractors' facilities, the contracting officer must obtain
legal advice from the Office of the Solicitor.
2922.103-4 Approvals.
The ``agency approving official'' as identified in FAR 22.103-4(a)
and (b) is a manager, supervisor, or executive responsible for the
contracting officer's technical representative (see 2901.603-71).
Subpart 2922.8--Equal Employment Opportunity
2922.802 General.
Executive Order 11246, as amended, sets forth the Equal Opportunity
clause and requires that the Secretary of Labor promote full
realization of equal opportunity for all persons regardless of race,
color, religion, sex, or national origin. No DOL contracting officer
may contract for supplies or services in a manner to avoid
applicability of the requirements of E.O. 11246.
PART 2923--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 2923.2--Energy and Water Efficiency and Renewable Energy
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); 42 U.S.C. 8262(g).
[[Page 49013]]
Subpart 2923.2--Energy and Water Efficiency and Renewable Energy
2923.271 Purchase and use of environmentally sound and energy
efficient products and services.
(a) The GSA Federal Supply Schedule Products Guide identifies the
recycled and recycled-content items available in the GSA FSS supply
system. Copies of the guide may be obtained, without cost, from the
GSA, Centralized Mailing List Service, P.O. Box 6477, Fort Worth, Texas
76115, or by calling (817) 334-5215. See also GSA Advantage!
(b) Executive Order 13123, Greening the Government Through
Efficient Energy Management, dated June 8, 1999, requires agencies to
select for procurement those energy consuming goods or products which
are the most life cycle cost-effective (see FAR 7.101). Green
purchasing includes the acquisition of recycled content products,
environmentally preferable products and services, biobased products,
energy- and water-efficient products, alternate fuel vehicles, and
products using renewable energy.
(1) To the extent practicable, each program official must require
vendors of goods or products to provide appropriate data that can be
used to assess the life cycle cost of each good or product, including
building energy system components, lighting systems, office equipment
and other energy using equipment.
(2) In preparing solicitations and evaluating and selecting offers
for award, contracting personnel must consider the life cycle cost data
along with other relevant evaluation criteria. If life cycle costing is
not used, the contract file must be documented to reflect the rationale
for not obtaining and evaluating the data.
(c) Executive Order 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition, dated September 14,
1998, requires agencies to comply with executive branch policies for
the acquisition and use of environmentally preferable products and
services and implement cost-effective procurement preference programs
favoring the purchase of these products and services.
(d) Executive Order 13148 Greening The Government Through
Leadership in Environmental Management Systems. This Executive Order
assists with developing an environmental management system (EMS). Green
acquisition is an integral component of an EMS with energy
conservation, recycling, etc. The following sources are provided as
references for the subject matter indicated:
(1) http://www.ofee.gov/gp/gp.htm. The Office of the Federal
Environmental Executive provides references to all greening the
Government executive orders, web links to other relevant cites, and
information on biobased and bioenergy products.
(2) www.epa.gov/cpg. The Comprehensive Procurement Guidelines
program is part of EPA's continued effort to promote the use of
materials recovered from solid waste. This listing provides information
on products made from recycled materials, such as the carpeting and
insulation used in office buildings, or reams of office paper.
(3) www.energystar.gov. ENERGY STAR is a government-backed program
helping businesses and individuals protect the environment through
superior energy efficiency. See also http://www.eere.energy.gov/femp/procurement/.
(4) http://www.afdc.doe.gov/. The Alternative Fuels Data Center is
a one-stop shop for agency alternative fuel and vehicle information
needs.
(5) www.emall.dla.mil. The Defense Logistics Agency has created an
electronic mall for buying environmental preferable products.
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 2924-2927 [RESERVED]
PART 2928--BONDS AND INSURANCE
Subpart 2928.2--Sureties and Other Security for Bonds
Sec.
2928.204 Alternatives in lieu of corporate or individual sureties.
Subpart 2928.3--Insurance
2928.305 Overseas workers' compensation and war hazard insurance.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2928.2--Sureties and Other Security for Bonds
2928.204 Alternatives in lieu of corporate or individual sureties.
Upon receipt of any of the types of securities listed in FAR 28.201
or FAR 28.203, the contracting officer must verify the validity of the
security and coordinate the retention of the security with the Chief
Financial Officer. Contracting officers may obtain access to Department
of Treasury Circular 570 through the Internet at http://www.fms.treas.gov/c570/index.html.
Subpart 2928.3--Insurance
2928.305 Overseas workers' compensation and war hazard insurance.
The authority of the agency head to recommend to the Secretary of
Labor waiver of the applicability of the Defense Base Act (42 U.S.C.
1651 et seq.) to any contract, subcontract, work location, or
classification of employees, is delegated to the HCA.
PART 2929--TAXES
Sec.
Subpart 2929.1--General
2929.101 Resolving tax problems.
Subpart 2929.3--State and Local Taxes
2929.303 Application of state and local taxes to Government
contractors and subcontractors.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2929.1--General
2929.101 Resolving tax problems.
Contract tax problems or questions must be referred by the
contracting officer to the Office of the Solicitor for resolution.
Subpart 2929.3--State and Local Taxes
2929.303 Applications of State and local taxes to Government
contractors and subcontractors.
(a) Contractors may only be treated as agents of the Government for
the purposes set forth in FAR 29.303(a) upon the written review and
approval of the Assistant Secretary for Administration and Management.
(b) Requests for approval under paragraph (a) of this section must
be submitted by the HCA through the Office of the Solicitor, to the
Division of Acquisition Management Services, for further action.
PART 2930--COST ACCOUNTING STANDARDS ADMINISTRATION
Sec.
Subpart 2930.2--CAS Program Requirements
2930.201-5 Waiver.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2930.2--CAS Program Requirements
2930.201-5 Waiver.
(a) The Head of Contracting Activity is authorized to waive CAS
requirements as provided in FAR 30.201-5.
(b) Requests for waivers under paragraph (a) of this subsection
must be prepared by the contracting officer as
[[Page 49014]]
prescribed in FAR 30.201-5(e) and submitted to the HCA.
PART 2931--CONTRACT COST PRINCIPLES AND PROCEDURES
Sec.
Subpart 2931.1--Applicability.
2931.101 Objectives.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2931.1--Applicability
2931.101 Objectives.
Individual and class deviations from cost principles in FAR Part 31
must be processed as prescribed in DOLAR Subpart 2901.4.
PART 2932--CONTRACT FINANCING
Sec.
Subpart 2932.4--Advance Payments for Non-Commercial Items
2932.402 General.
2932.407 Interest.
Subpart 2932.7--Contract Funding
2932.703 Contract funding requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2932.4--Advance Payments for Non-Commercial Items
2932.402 General.
The HCA is authorized to approve determinations and findings as
well as contract terms for advance payments. The contracting officer
must submit a recommendation for approval or disapproval of the
contractor's request to the HCA.
2932.407 Interest.
The HCA may authorize advance payments without interest pursuant to
FAR 32.407.
Subpart 2932.7--Contract Funding
2932.703 Contract funding requirements.
(a) Except in unusual circumstances, the contracting office may not
issue solicitations until an approved procurement request (PR),
containing a certification that funds are available, has been received.
However, the contracting office may take all necessary actions up to
the point of contract obligation before receipt of the PR certifying
that funds are available when:
(1) The Assistant Secretary, Inspector General, Bureau Chief,
Deputy Under Secretary, Solicitor of Labor, Commissioner, or Director
Women's Bureau certifies that such action is necessary to meet critical
program schedules for their program area;
(2) The Budget Officer certifies that program authority has been
issued and funds to cover the acquisition will be available before the
date set for receipt of proposals;
(3) The solicitation includes the clause at FAR 52.232-18,
Availability of Funds.
(b) The contracting office may not open bids/close solicitations
until a PR, either planning or final, has been received that contains a
certification of fund availability. Only the project or program
official with the authority to commit funds from the agency that
initiated the PR may make that written certification.
(c) The project or program office that initiated the PR is
responsible for obtaining required certifications.
PART 2933--PROTESTS, DISPUTES, AND APPEALS
Sec.
Subpart 2933.1--Protests
2933.102 General.
2933.103 Protests to the agency.
2933.104 Protests to GAO.
Subpart 2933.2--Disputes and Appeals
2933.203 Applicability.
2933.209 Suspected fraudulent claims.
2933.211 Contracting officer's decision.
2933.212 Contracting officer's duties upon appeal.
2933.213 Obligation to continue performance.
2933.270 Department of Labor Board of Contract Appeals.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); E.O. 12979, 60 FR
55171, 3 CFR, 1995 Comp., p. 417.
Subpart 2933.1--Protests
2933.102 General.
(a) The Division of Acquisition Management Services, N-5425, 200
Constitution Ave., NW., Washington DC 20210-0001, telephone (202) 693-
7285, facsimile (202) 693-7290 (or the Office acting in that capacity),
is responsible for coordinating procurement protests filed with the
General Accounting Office.
(b) The authority of the Assistant Secretary for Administration and
Management under FAR 33.102(b) to determine that a solicitation,
proposed award, or award does not comply with the requirements of law
or regulation may be delegated to the HCA.
2933.103 Protests to the agency.
(a) In accordance with Executive Order 12979, the following
procedures apply to agency protests:
(1) The filing time frames in FAR 33.103(e) apply to agency
protests. An agency protest is filed when the protest complaint is
received at the location the solicitation designates for serving
protests; or if none is designated, when filed with a contracting
officer or HCA.
(2) An interested party filing an agency protest may request either
that the contracting officer or the Agency Protest Official decide the
protest. The ``Agency Protest Official'' is an individual above the
level of the contracting officer and designated by the ASAM, such as
the Competition Advocate. The deciding official, whether a C.O. or
Agency Protest Official, who must work in consultation with the Office
of Solicitor to resolve a protest.
(3) In addition to the information required by FAR 33.103(d)(2),
the protest must:
(i) Indicate that it is a protest to the agency.
(ii) Be contemporaneously filed with the contracting officer.
(iii) State whether the protestor chooses to have the contracting
officer or the Agency Protest Official decide the protest. If the
protest is silent on this matter, the contracting officer will decide
the protest.
(b) ``Interested Party'' means an actual or prospective offeror
whose direct economic interest would be affected by the award of a
contract or by the failure to award a contract.
(c) If the Agency Protest Official is chosen by the protestor to
decide the protest, this is an alternative to a decision by the
contracting officer, not an appeal. The Agency Protest Official will
not consider appeals from a contracting officer's decision on an agency
protest.
(d) The deciding official should consider conducting a scheduling
conference with the protestor within five (5) days after the protest is
filed. The scheduling conference will establish deadlines for written
arguments in support of the agency protest and for agency officials to
present information in response to the protest issues. Alternative
Dispute Resolution (ADR) techniques will be considered if determined
appropriate by the deciding official.
(e) Oral conferences may take place either by telephone or in
person. Other parties may attend at the discretion of the deciding
official.
(f) Apart from its protest document, the protestor will be given
only one opportunity to support or explain in writing the substance of
its protest. Department of Labor procedures do not provide for any
discovery. The deciding official has discretion to request additional
information from either the agency or the protestor. However, the
deciding official will normally decide protests on the basis of
information
[[Page 49015]]
provided by the protestor and the agency.
(g) The preferred practice is to resolve protests through informal
oral discussion.
(h) An interested party may represent itself or be represented by
legal counsel. The Department of Labor will not reimburse the protester
for any legal fees or costs related to the agency protest.
(i) If an agency protest is received before contract award, the
contracting officer may only make award if the HCA makes a
determination to proceed under FAR 33.103(f)(1). Similarly, if an
agency protest is filed within ten (10) days after award, or within
five (5) days of the offered of a debriefing required by FAR 15.505 or
15.506, whichever is later, the contracting officer must suspend
performance of the contract unless the HCA makes a determination to
proceed under FAR 33.103(f)(3). Any stay of award or suspension of
performance remains in effect until the protest is decided, dismissed,
or withdrawn.
(j) The deciding official must make a best effort to issue a
decision on the protest within twenty (20) days after the filing date.
The decision may be oral or written, dependent upon advice of legal
counsel.
(k) The deciding official must send a confirming letter within
three (3) days after the decision using a means that provides evidence
of receipt. The confirming letter must include the following
information:
(1) State whether the protest was denied, sustained or dismissed.
(2) Indicate the date the decision was provided.
(3) If the deciding official sustains the protest, relief may
consist of any of the following:
(i) Recommendation that the contract be terminated for convenience
or cause, or that the solicitation be canceled.
(ii) Recompeting the requirement from the beginning of the
solicitation or from the last round of negotiations.
(iii) Amending the solicitation.
(iv) Refraining from exercising contract options.
(v) Awarding a contract consistent with statute, regulation, and
the terms of the solicitation.
(vi) Other action that the deciding official determines is
appropriate.
(l) If the deciding official sustains a protest, then within 30
days after receiving the official's recommendations for relief, the
contracting officer must either:
(1) Fully implement the recommended relief; or
(2) Notify the deciding official, if the contracting officer was
not the deciding official, in writing, if any recommendations have not
been implemented and explain why.
(m) If the protest is denied, and contract performance has been
suspended under paragraph (i) of this section, the contracting officer
will not lift such suspension until five (5) days after the protest
decision has been issued, to allow the protester to file a protest with
the General Accounting Office, unless the HCA makes a new finding under
FAR 33.103(f)(3). The contracting officer shall consider allowing such
suspension to remain in effect pending the resolution of any GAO
proceeding.
(n) Proceedings on an agency protest may be dismissed or stayed if
a protest on the same or similar basis is filed with a protest forum
outside of the Department of Labor.
2933.104 Protests to GAO.
(a) General procedures. The HCA has the responsibility to prepare
and provide to the General Accounting Office (GAO) the agency report
with the information required by FAR 33.104(a). The agency report must
be coordinated with the Office of the Solicitor before the report is
signed and sent to the GAO.
(b) Protests before award. The authority of the HCA under FAR
33.104(b) to authorize a contract award when the agency has received
notice from the GAO of a protest filed directly with the GAO is
nondelegable. The HCA has the responsibility to prepare and provide to
the GAO the written finding with the information required by FAR
33.104(b)(1). The written finding must be coordinated with Office of
the Solicitor before the HCA affirms its approval by signing the
written finding and sending it to the GAO. Copies of the signed written
finding and the signed written notice to the GAO must be provided to
the PE within two (2) working days after they are sent to the GAO.
(c) Protests after award. The authority of the HCA under FAR
33.104(c) to authorize contract performance when the agency has
received notice from the GAO of a protest filed directly with the GAO
is nondelegable. The HCA has the responsibility to prepare and provide
to the GAO the written finding with the information required by FAR
33.104(c)(2). The written finding must be coordinated with the Office
of the Solicitor before the notice is signed by the HCA and sent to the
GAO.
(d) Notice to the GAO. The authority of the HCA under FAR
33.104(g), to report to the GAO the failure to fully implement the GAO
recommendations with respect to a solicitation for a contract or an
award or a proposed award of a contract within 60 days of receiving the
GAO recommendations, is nondelegable. The written notice must be
coordinated with the Office of the Solicitor before the notice is
signed by the HCA and sent to the GAO. A copy of all notices to the GAO
submitted in accordance with FAR 33.104(g) must be provided to the PE
within 2 working days after they are sent to the GAO.
Subpart 2933.2--Disputes and Appeals
2933.203 Applicability.
The authority of the agency head to determine that the application
of the Contract Disputes Act of 1978 to any contract with a foreign
government or agency of that government, or an international
organization or a subsidiary body of that organization, would not be in
the public interest is delegated to the HCA.
2933.209 Suspected fraudulent claims.
The contracting officer must refer all matters relating to
suspected fraudulent claims by a contractor under the conditions in FAR
33.209 to the Office of the Inspector General for further action or
investigation.
2933.211 Contracting officer's decision.
The written decision required by FAR 33.211(a)(4) must include, in
the paragraph listed under FAR 33.211(a)(4)(v), specific reference to
the Department of Labor Board of Contract Appeals (LBCA), 800 K Street,
NW., Washington, DC 20001-8002.
2933.212 Contracting officer's duties upon appeal.
(a) When a notice of appeal has been received, the contracting
officer must endorse on the appeal the date of mailing (or the date of
receipt if the notice was not mailed). The contracting officer must
also notify the Solicitor of Labor of the appeal.
(b) The contracting officer should prepare and transmit the
administrative file for the Office of the Solicitor and assist with the
appeal.
2933.213 Obligation to continue performance.
The contracting officer must include the clause at FAR 52.233-1,
Disputes (Alternate I), in contracts where continued performance is
necessary pending resolution of any claim arising under or relating to
the contract.
2933.270 Department of Labor Board of Contract Appeals.
(a) The Department of Labor Board of Contract Appeals (LBCA) is
authorized by the Secretary to consider and
[[Page 49016]]
determine appeals from decisions of contracting officers arising under
a contract, or relating to a contract, made by the Department or any
other executive agency when such agency or the Administrator of the
Office of Federal Procurement Policy has designated the LBCA to decide
the appeal.
(b) The LBCA rules of procedure are contained in 41 CFR Part 29-
60.104, appearing in the July 1, 1983 edition of 41 CFR subtitle A,
chapters 19 to 100.
PART 2934-2935 [RESERVED.]
PART 2936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 2936.2--Special Aspects of Contracting for Construction
Sec.
2936.201 Evaluation of contractor performance.
2936.209 Construction contracts with architect-engineer firms.
Subpart 2936.5--Contract Clauses
Subpart 2936.6--Architect-Engineer Services
2936.602 Selection of firms for architect-engineer contracts.
2936.602-1 Selection criteria.
2936.602-2 Evaluation boards.
2936.602-3 Evaluation board functions.
2936.602-4 Selection authority.
2936.602-5 Short selection processes for contracts not to exceed
$100,000.
2936.603 Collecting data on and appraising firms' qualifications.
2936.604 Performance evaluation.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2936.2--Special Aspects of Contracting for Construction
2936.201 Evaluation of contractor performance.
The HCA must establish procedures to evaluate construction
contractor performance and prepare performance reports as required by
FAR 36.201.
2936.209 Construction contracts with architect-engineer firms.
As required by FAR 36.209, no contract for construction of a
project may be awarded to the firm that designed the project, or to its
subsidiaries or affiliates, without the written approval of the ASAM.
Any request for approval must include the reason(s) why award to the
design firm is required; an analysis of the facts involving potential
or actual organizational conflicts of interest including benefits and
detriments to the Government and the prospective contractor; and the
measures which are to be taken to avoid, neutralize, or mitigate
conflicts of interest.
Subpart 2936.5--Contract Clauses
The HCA is authorized to make the determination regarding the
impracticability of Government performance of original and final
surveys as prescribed in FAR 36.516.
Subpart 2936.6--Architect-Engineer Services
2936.602 Selection of firms for architect-engineer contracts.
2936.602-1 Selection criteria.
HCAs are authorized to approve the use of design competition under
the conditions in FAR 36.602-1(b).
2936.602-2 Evaluation boards.
HCAs must establish procedures to provide permanent or ad hoc
architect-engineer evaluation boards as prescribed in FAR 36.602-2.
Procedures must provide for the appointment of private practitioners of
architecture, engineering, or related professions when such action is
determined in writing by the HCA to be essential to meeting the
Government's minimum needs.
2936.602-3 Evaluation board functions.
The selection report required in FAR 36.602-3(d) must be prepared
for the approval of the HCA.
2936.602-4 Selection Authority.
The HCA is authorized to serve as the designated Selection
Authority in accordance with FAR 36.602-1.
2936.602-5 Short selection processes for contracts not to exceed
$100,000.
The selection process prescribed in FAR 36.602-5(b) must be used
for architect-engineer contracts not exceeding the Simplified
Acquisition Threshold.
2936.603 Collecting data on and appraising firms' qualifications.
(a) HCAs who acquire architect-engineer services must establish
procedures to comply with the requirements of FAR 36.603.
(b) Copies of procedures established under paragraph (a) of this
section must be submitted to the Division of Acquisition Management
Services, for review and recommendation for approval to the HCA when
updated. These procedures must include a list of names, addresses, and
telephone numbers of offices or boards assigned to maintain architect-
engineer qualification data files.
2936.604 Performance evaluation.
(a) The HCA must establish procedures to evaluate architect-
engineer contractor performance as required in FAR 36.604. Normally,
the performance report must be prepared by the contracting officer's
authorized representative or other official who was responsible for
monitoring contract performance and who is qualified to evaluate
overall performance. DOL Agency/Office procedures must prescribe
instructions for review of the report, before distribution, as
prescribed in FAR 36.604(b).
(b) Performance reports must be made using Standard Form 1421,
Performance Evaluation (Architect-Engineer) as prescribed in FAR
36.702(c). Details covering unsatisfactory performance, including
Government notification to the contractor and written comments by the
contractor, must also be attached to the report.
PART 2937--SERVICE CONTRACTING
Sec.
Subpart 2937.1--Service Contracts--General
2937.103 Contracting officer responsibility.
2937.103-70 Department of Labor checklist to aid analysis and review
of requirements for service contracts.
Subpart 2937.2--Advisory and Assistance Services
2937.203 Policy.
Subpart 2937.6--Preference for Performance-Based Contracting (PBC)
2937.602 Elements of performance-based contracting.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2937.1--Service Contracts-General
The HCA is responsible for establishing internal review and
approval procedures for service contracts in accordance with OFPP
Policy Letter 93-1, ``Management Oversight of Service Contracting''. As
defined by FAR 37.101, contracts for personal services are permitted
under the circumstances in 5 U.S.C. 3109.
2937.103-70 Department of Labor checklist to aid analysis and review
of requirements for service contracts.
Contracting specialists and contracting officers must work in close
collaboration with the beneficiaries of the services being purchased to
ensure that contractor performance meets contract requirements and
performance standards.
(a) General. Following is a checklist to aid analysis and review of
requirements for service contracts.
(1) Is the statement of work complete, with a clear-cut division of
responsibility between the contracting parties?
[[Page 49017]]
(2) Is the statement of work discussed in terms the market can
satisfy?
(3) Does the statement of work encompass all commercially available
services that can meet the actual functional need (eliminates any
nonessential preferences that may thwart full and open competition)?
(4) Is the statement of work performance-based to the maximum
extent possible (i.e., is the acquisition structured around the purpose
of the work to be performed, as opposed to either the manner by which
the work is to be performed or a broad and imprecise statement of work?
(b) Cost effectiveness. If the response to any of the following
questions is negative, the agency may not have a valid requirement or
not be obtaining the requirement in the most cost effective manner.
(1) Is the statement of work written so that it supports the need
for a specific service?
(2) Is the statement of work written so that it permits adequate
evaluation of contractor versus in-house cost and performance?
(3) Are the choices of contract type, quality assurance plan,
competition strategy, or other related acquisition strategies and
procedures in the acquisition plan appropriate to ensure good
contractor performance to meet the user's needs?
(4) If a cost reimbursement contract is contemplated, is the
acquisition plan adequate to ensure that the contractor will have the
incentive to control costs under the contract?
(5) Is the acquisition plan adequate to address the cost
effectiveness of using contractor support (either long-term or short-
term) versus in-house performance?
(6) Is the cost estimate, or other supporting cost information,
adequate to enable the contracting office to effectively determine
whether costs are reasonable?
(7) Is the statement of work adequate to describe the requirement
in terms of ``what'' is to be performed as opposed to ``how'' the work
is to be accomplished?
(8) Is the acquisition plan adequate to ensure that there is proper
consideration given to ``quality'' and ``best value?''
(c) Control. If the response to any of the following questions is
negative, there may be a control problem.
(1) Are there sufficient resources to evaluate contractor
performance when the statement of work requires the contractor to
provide advice, analysis and evaluation, opinions, alternatives, or
recommendations that could significantly influence agency policy
development or decision-making?
(2) Does the quality assurance plan provide for adequate monitoring
of contractor performance?
(3) Is the statement of work written so that it specifies a
contract deliverable or requires progress reporting on contractor
performance?
(4) Is agency expertise adequate to independently evaluate the
contractor's approach, methodology, results, options, conclusions or
recommendations?
(d) Conflicts of interest. If the response to any of the following
questions is affirmative, there may be a conflict of interest.
(1) Can the potential offeror perform under the contract to devise
solutions or make recommendations that would influence the award of
future contracts to that contractor?
(2) If the requirement is for support services (such as system
engineering or technical direction), were any of the potential offerors
involved in developing the system design specifications or in the
production of the system?
(3) Has a potential offeror participated in earlier work involving
the same program or activity that is the subject of the present
contract wherein the offeror had access to source selection or
proprietary information not available to other offerors competing for
the contract?
(4) Will the contractor be evaluating a competitor's work?
(5) Does the contract allow the contractor to accept its own
products or activities on behalf of the Government?
(6) Will the work under this contract put the contractor in a
position to influence government decision-making, e.g., developing
regulations that will affect the contractor's current or future
business?
(7) Will the work under this contract affect the interests of the
contractor's other clients?
(8) Are any of the potential offerors, or their personnel who will
perform the contract, former agency officials who--while employed by
the agency--personally and substantially participated in the
development of the requirement for, or the procurement of, these
services within the past two years?
(e) Competition. If the response to any of the following questions
is negative, competition may be unnecessarily limited.
(1) Is the statement of work defined so as to avoid overly
restrictive specifications or performance standards?
(2) Is the contract formulated in such a way as to avoid creating a
continuous and dependent arrangement with the same contractor?
(3) Is the use of an indefinite quantity or term contract
arrangement appropriate to obtain the required services?
(4) Will the requirement be obtained through the use of full and
open competition?
Subpart 2937.2--Advisory and Assistance Services
2937.203 Policy.
(a) HCAs having a requirement for certain advisory and assistance
services are required by the Department of Labor Manual Series (See
DLMS 2 836) to prepare a written justification for such services.
Written justification must be submitted to the ASAM for review by the
Procurement Review Board, for ASAM approval.
(b) Regardless of the type of action planned, the justification in
paragraph (a) of this section must include the following:
(1) A statement of need, which certifies that the requested
services do not unnecessarily duplicate any previously performed work.
(2) Nature and scope of the need, and the results expected.
(3) Extent to which in-house staff availability was assessed, and
the reasons why procurement of outside services is necessary.
(4) Any additional information or data that support the requirement
for a contract.
(5) Name(s) and title(s) of official(s) who will be assigned as
project officer(s) to work with the contractor, and who can be
contacted for additional information.
(6) A statement that the Government policy on advisory and
assistance services has been reviewed and complies with FAR 37.203.
Subpart 2937.6--Preference for Performance-Based Contracting (PBC)
2937.602 Elements of performance-based contracting.
(a) Performance-based contracting is defined in FAR 37.101 and
discussed in FAR 37.6. Although FAR Part 37 primarily addresses
services contracts, PBC is not limited to these contracts. PBC is the
preferred way of contracting for services. (See exceptions listed in
FAR 37.102). Generally, when contract performance risk under a PBC
specification can be shifted to the contractor to allow for the
operation of objective incentives, a contract type with objectively
measurable incentives
[[Page 49018]]
(e.g., Firm-Fixed-Price, Fixed-Price-Incentive-Fee, or Cost-Plus-
Incentive-Fee) is appropriate. However, when contractor performance
(e.g., cost control, schedule, or quality/technical) is best evaluated
subjectively using qualitative measures, a Cost-Plus-Award Fee contract
may be used.
(b) A labor hour level-of-effort contract is not considered a
performance-based contract.
PART 2938--2941 [RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 2942--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 2942.1--Contract Audit Services
Sec.
2942.101 Policy
Subpart 2942.15--Contractor Performance Information
2942.1502 Policy.
2942.1503 Procedures.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Subpart 2942.1--Contract Audit Services
2942.101 Policy
The OASAM Division of Cost Determination is responsible for
establishing billing rates and indirect cost rates as prescribed in FAR
42.7 for the Department of Labor.
Subpart 2942.15--Contractor Performance Information
This subpart provides policies and procedures for evaluating,
maintaining, and releasing contractor performance information under DOL
contracts.
2942.1502 Policy.
DOL contracting officers are required to use or interface with the
National Institutes of Health's Contractor Performance System. The HCA
is responsible for ensuring that a contractor performance evaluation
system is generated to meet the requirements of FAR Subpart 42.15.
Contracts, task orders, and delivery orders, exceeding the simplified
acquisition threshold, should be formally evaluated in writing. Interim
evaluations should be performed on contracts exceeding one year in
duration. This will assist contractors with improving marginal
performance and identifying any major deficiencies. It will also
facilitate performance evaluations at contract completion, as well as
determining whether to exercise contract options, if any.
2942.1503 Procedures.
(a) In accordance with FAR 42.1502, the contracting officer will
prepare an interim evaluation of a contractor's performance at least
annually for submission to the Contractor Performance System maintained
by the National Institutes of Health.
(b) The contracting officer, or designee, must determine who will
evaluate a contractor's performance. The contracting officer's
technical representative, program manager, contract specialists or
administrators, and users are candidates likely to be selected to
perform the evaluation.
(c) A Contractor's performance evaluation should be obtained from a
person who monitored contractor performance, when that individual's
assignment of duties or employment terminates before physical
completion of the contract. The areas of performance to be selected for
evaluation should be tailored to the type of supplies or services
normally acquired by the contracting activities and the type of
contract. HCAs must ensure uniformity of the evaluation criteria within
their contracting activities.
(d) Release of contractor performance evaluation information. (1)
Requests for performance evaluation information from the public must be
processed in accordance with FOIA, as implemented by DOL under 29 CFR
Part 70.
(2) Release of a contractor's performance evaluation information to
other federal agencies is subject to FAR 42.1502. When the performance
evaluation information is released to other federal agencies, it should
be provided with a written statement that it is nonpublic information
that must be processed under FOIA principles if a request for its
disclosure is received.
(e) Even though the retention period for past performance
evaluation information is three years (see FAR 42.1503), the
contractor's performance evaluation, any contractor rebuttal, and final
decision become a part of the contract file. Therefore, disposal of the
contractor's evaluation information must be accomplished in accordance
with FAR 4.804.
PART 2943--CONTRACT MODIFICATIONS
Subpart 2943.2--Change Orders
Sec.
2943.205 Contract clauses.
Subpart 2943.3--Forms
2943.301 Use of forms.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2943.2--Change Orders
2943.205 Contract clauses.
HCAs may establish procedures, or office policies, when appropriate
for authorizing the contracting officer to vary the 30-day period for
submission of adjustment proposals to the clauses prescribed by FAR
43.205.
Subpart 2943.3--Forms
2943.301 Use of forms.
(a) FAR 43.301(a)(1)(vi) requires the use of Standard Form 30 (SF-
30) to execute any obligation or deobligation of contract funds after
award. The SF-30 also must be used to deobligate funds when effecting
contract closeout, when obligated funds exceed the final contract
costs. In such an instance, the SF-30 may be issued as an
administrative modification on a unilateral basis if the contractor's
financial release has been separately obtained.
(b) The contracting officer must include in any unilateral contract
modification issued for contract closeout, a statement that the
contractor has signed a release of claims and indicate the date the
release of claims was signed by the contractor. The SF-30 must also be
used to execute purchase order modifications as specified in FAR
13.302-3(b).
PART 2944--SUBCONTRACTING POLICIES AND PROCEDURES
Subpart 2944.1--General
Subpart 2944.2--Consent To Subcontract
Sec.
2944.201-1 Consent requirements.
2944.202 Contracting officer's evaluation.
2944.202-2 Considerations.
2944.203 Consent limitations.
Subpart 2944.3--Contractors' Purchasing Systems Reviews
2944.302 Requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2944.1--General
The waiver of consent must be in writing, signed by the contracting
officer, and included in the contract file. The waiver must include all
supporting facts, including the rationale for waiving the consent to
subcontract requirements.
[[Page 49019]]
Subpart 2944.2--Consent To Subcontract
2944.201-1 Consent requirements
In accordance with FAR 44.201-1(b) or FAR 44.201-2, advance
notification and agreement are required for all cost-reimbursement,
time-and-materials, or labor-hour subcontracts exceeding the simplified
acquisition threshold.
2944.202 Contracting officer's evaluation.
2944.202-2 Considerations.
The review required by FAR 44.202-2(a) must be documented in
writing (including supporting facts and rationale), signed by the
contracting officer, and included in the contract file.
2944.203 Consent limitations.
Any limitations placed on the consent to subcontract must be
documented in writing (including supporting facts and rationale),
signed by the contracting officer, and included in the contract file.
Subpart 2944.3--Contractors' Purchasing Systems Reviews
2944.302 Requirements.
The authority of the ASAM under FAR 44.302(a), to raise or lower
the $25 million review level for a contractor's purchasing system, may
not be delegated. When a CPSR is required by the Contracting Officer,
the effort must be coordinated with the Division of Acquisition
Management Services, and the Division of Cost Determination.
PART 2945--GOVERNMENT PROPERTY
Subpart 2945.1--General
Sec.
2945.104 Review and correction of contractors' property control
systems.
2945.105 Records of Government property.
Subpart 2945.3--Providing Government Property to Contractors
2945.302 Providing facilities.
Subpart 2945.4--Contractor Use and Rental of Government Property
2945.403 Rental-use and charges clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2945.1--General
2945.104 Review and correction of contractors' property control
systems.
When the Government's property administrator determines that review
and approval of the contractor's property control system rests with the
DOL, the Government's property administrator must review the system to
determine whether the contractor will be able to meet the requirements
of FAR 45.104. The review must be completed, signed by the appointed
property administrator, and retained in the contract file.
2945.105 Records of Government property.
Contracting officers must maintain a file on any Government
property in the possession of the contractors. As a minimum, the file
must contain the following:
(a) A copy of the applicable portions of the contract that list the
Government-furnished property (GFP);
(b) Contracting officer's letters assigning the Government property
administrator to the contract;
(c) Written evidence that the contractor's property control system
was reviewed and approved as required by FAR 45.104;
(d) If applicable, documentation of the request and approval or
denial of the contractor's requests to acquire or fabricate special
test equipment in accordance with FAR 45.307 or other property;
(e) The contractor's written notice of receipt of the GFP and any
reported discrepancies thereto, as required by FAR 45.502-1 and 45.502-
2, respectively;
(f) Any other documents pertaining to or affecting the status of
the Government property in the possession of contractors or
subcontractors under the contract;
(g) Documentation of the screening and disposal of all Government
property as required by FAR 45.6.
Subpart 2945.3--Providing Government Property to Contractors
2945.302 Providing facilities.
The HCA is authorized to make the determination to provide
facilities to a contractor as prescribed in FAR 45.302-1(a)(4).
Subpart 2945.4--Contractor Use and Rental of Government Property
2945.403 Rental-use and charges clause.
The HCA must make the determination to charge rent on the basis of
use under the clause at FAR 52.245-9 when the contracting officer
provides access to Government production and research property, as
prescribed in FAR 45.403(a).
PARTS 2946-2951 [RESERVED]
PART 2952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 52.2--Text of Provisions and Clauses
Sec.
2952.201-70 Contracting Officer's Technical Representative (COTR).
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 52.2--Text of Provisions and Clauses
2952.201-70 Contracting officer's technical representative (COTR).
Insert the following clause into contracts requiring COTR
representation under 2901.605:
Contracting officer's technical representative (COTR) [Effective
Date of Final Rule]
(a) Mr./Ms. (Name) of (Organization) (Room No.), (Building),
(Address), (Area Code & Telephone No.), is hereby designated to act
as contracting officer's technical representative (COTR) under this
contract.
(b) The COTR is responsible, as applicable, for: receiving all
deliverables, inspecting and accepting the supplies or services
provided hereunder in accordance with the terms and conditions of
this contract; providing direction to the contractor which clarifies
the contract effort, fills in details or otherwise serves to
accomplish the contractual Scope of Work; evaluating performance;
and certifying all invoices/vouchers for acceptance of the supplies
or services furnished for payment.
(c) The COTR does not have the authority to alter the
contractor's obligations under the contract, and/or modify any of
the expressed terms, conditions, specifications, or cost of the
agreement. If, as a result of technical discussions, it is desirable
to alter/change contractual obligations or the Scope of Work, the
contracting officer must issue such changes.
PART 2953--FORMS
Subpart 53.1--General
Sec.
2953.100 Request for review by the Procurement Review Board.
2953.101 Simplified Acquisition Checklist DL 1-2001.
2953.102 Simplified Acquisition DL 2078.
2953.103 Department of Labor Form DL 1-2004, Small Business
Procurement Determination.
2953.104 Simplified Acquisition Terms And Conditions.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2953.1--General
2953.100 Request for review by the Procurement Review Board.
The following form must be used by the requisitioning office to
submit a request for review by the Procurement Review Board as
specified in DOLAR parts 2901 and 2943. This form must be submitted
through the Assistant Secretary for the program office to the Director,
Division of Acquisition Management Services for scheduling before the
PRB. In general, the PRB
[[Page 49020]]
meets on the fourth Tuesday of each month when necessary. The PRB
requires five (5) business days to examine the form and attachments
before the review.
2953.101 Simplified Acquisition Checklist.
The following checklist must be used to document all simplified
acquisitions at or below the simplified acquisition threshold.
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[[Page 49022]]
2953.102 Simplified Acquisition DL 2078.
The following form must be used to document all simplified
acquisitions above the micro-purchase threshold and below the
simplified acquisition threshold. This form may also be used to
document commercial acquisitions on a fixed price basis up to $5
million.
[[Page 49023]]
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[[Page 49024]]
2953.103 Department of Labor Form DL 1-2004, Small Business
Procurement Determination.
The requiring organization must complete the following form for all
acquisitions above the simplified acquisition threshold. This form will
then be submitted through the contracting officer to the Office of
Small Business Programs for review.
BILLING CODE 4510-23-P
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2953.104 Procurement Review Board DL1-490
[[Page 49026]]
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[FR Doc. 03-20095 Filed 8-14-03; 8:45 am]
BILLING CODE 4510-23-C