[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Rules and Regulations]
[Pages 22990-23021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8571]
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Part III
Department of Labor
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48 CFR Part 2901, et al.
Revision to the Department of Labor Acquisition Regulations; Final Rule
Federal Register / Vol. 69, No. 81 / Tuesday, April 27, 2004 / Rules
and Regulations
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DEPARTMENT OF LABOR
Office of the Secretary
48 CFR Parts 2901, 2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909,
2910, 2911, 2912, 2913, 2914, 2915, 2916, 2917, 2918, 2919, 2920,
2921, 2922, 2923, 2924, 2925, 2926, 2927, 2928, 2929, 2930, 2931,
2932, 2933, 2934, 2935, 2936, 2937, 2938, 2939, 2940, 2941, 2942,
2943, 2944, 2945, 2946, 2947, 2948, 2949, 2950, 2951, 2952, and
2953
RIN 1291-AA34
Revision to the Department of Labor Acquisition Regulations
AGENCY: Office of the Secretary, Labor.
ACTION: Final rule.
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SUMMARY: This document sets forth a revised Department of Labor
Acquisition Regulation (DOLAR). The final rule reflects changes made to
the proposed rules in response to the comments received during the
comment period. 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The DOLAR was last revised in 1986, and is significantly out-of-date.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 references 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. This
final rule provides a definition for ``Agency Head'' which may not be
consistent with the internal Department of Labor Manual Series (DLMS)
Chapters 2-800 and 2-900 (establishing DOL procurement operating
procedures and policies). The DLMS will be amended to comport with the
definition in the DOLAR.
DATES: The effective date for this rule is May 27, 2004.
ADDRESSES: Jeffrey Saylor, Director, Division of Acquisition Management
Services, 200 Constitution Ave., NW., Room S-1513, Washington, DC
20210-0001.
FOR FURTHER INFORMATION CONTACT: Lawrence Murphy, Procurement Analyst,
Division of Acquisition Management Services, telephone (202) 693-7285
or by e-mail ([email protected]).
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.
Comments on the Proposed Rules
We received one set of comments with fifteen elements from one
member of the public.
Comment: Five of these comments suggested that the language be
updated to reflect changes made in the Federal Acquisition Regulation
since publication of the Notice of Proposed Rulemaking (NPRM) on August
15, 2003.
Response: Agree. We have made changes necessary to comply with
Federal Acquisition Circulars (FAC): 2001-15, 2001-16, 2001-17, and
2001-18.
Comment: Three comments suggested that references to Web site
addresses for GSA's Excluded Party Listing System and the U.S.
Department of Energy's Alternative Fuels Data Center be updated to
reflect new Internet addresses.
Response: Agree. The references to the Internet have been changed
to reflect the current addresses for each Web site.
Comment: Two comments suggested that the Department state a
preference for the Standard Form SF-30 in executing contract and
purchase order modifications, and the SF-1449 for executing commercial
purchases.
Response: Agree. The preference is so stated.
Comment: One comment noted that 2916.6 misquotes FAR 16.505 to
include a $25,000 threshold for a fair opportunity to compete task
orders instead of the micro-purchase threshold (currently $2,500).
Response: Agree. The reference has been corrected.
Comment: One comment noted that the reference to ``OFPP Policy
Letter 93-1'' should note that the Policy Letter has been reissued.
Response: Agree. We have changed the reference to reflect the later
date.
Comment: Two comments suggest that references in 2942.1502 and
2942.1503 reflect the Department of Labor's use of the National
Institutes of Health's Past Performance Information Retrieval System
(PPIRS) instead of the Contractor Performance System.
Response: Agree. The PPIRS is the e-gov system, which includes as a
subsystem the NIH's Contractor Performance System. The reference has
been corrected.
Comment: Finally, the commenter requested that additional clauses
be incorporated into the DOLAR in order to reduce the proliferation of
local clauses and to help DOL simplify its business processes.
Response: This comment was not accepted, as there has not been
evidence of a ``proliferation of local clauses.'' This comment will be
considered for future revisions to the DOLAR.
Congressional Review Act
Consistent with the Congressional Review Act, 5 U.S.C. 801, et
seq., we will submit to Congress and the Comptroller General of the
United States, a report regarding the issuance of this final rule prior
to the effective date set forth at the beginning of this document.
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 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 (Pub. L. 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 changes to
the DOLAR made by this rule do not result in expenditures of this
magnitude.
Paperwork Reduction Act
The 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
[[Page 22991]]
review and are not public use documents.
Small Business Regulatory Enforcement Fairness Act of 1996
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 rule will 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 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.
0
For the reasons stated in the preamble, the Department of Labor revises
48 CFR chapter 29, consisting of parts 2900 through 2953, to read as
set forth below.
Signed at Washington, DC, this 9th day of April, 2004.
Elaine L. Chao,
Secretary of Labor.
CHAPTER 29--DEPARTMENT OF LABOR
General Structure and Subparts
(Parts 2900 to 2999)
Subchapter A--General
PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
PART 2902--DEFINITIONS OF WORDS AND TERMS
PART 2903--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subchapter B--Acquisition Planning
PART 2904--ADMINISTRATIVE MATTERS
PART 2905--PUBLICIZING CONTRACT ACTIONS
PART 2906--COMPETITION REQUIREMENTS
PART 2907--ACQUISITION PLANNING
PART 2908--REQUIRED SOURCES OF SUPPLIES AND SERVICES
PART 2909--CONTRACTOR QUALIFICATIONS
PART 2910--SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE
DESCRIPTIONS
PART 2911--DESCRIBING AGENCY NEEDS
PART 2912--ACQUISITION OF COMMERCIAL ITEMS
PART 2913--SIMPLIFIED ACQUISITION PROCEDURES
Subchapter C--Contracting Methods and Contract Types
PART 2914--SEALED BIDDING
PART 2915--CONTRACTING BY NEGOTIATION
PART 2916--TYPES OF CONTRACTS
PART 2917--SPECIAL CONTRACTING METHODS
Subchapter D--Socioeconomic Programs
PART 2918 [RESERVED]
PART 2919--SMALL BUSINESS PROGRAMS
PART 2920-2921 [RESERVED]
PART 2922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 2923--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND
DRUG-FREE WORKPLACE
PART 2924-2927 [RESERVED]
Subchapter E--General Contracting Requirements
PART 2928--BONDS AND INSURANCE
PART 2929--TAXES
PART 2930--COST ACCOUNTING STANDARDS
PART 2931--CONTRACT COST PRINCIPLES AND PROCEDURES
PART 2932--CONTRACT FINANCING
PART 2933--PROTESTS, DISPUTES, AND APPEALS
PART 2934-2935 [RESERVED]
PART 2936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
PART 2937--SERVICE CONTRACTING
PARTS 2938-2941 [RESERVED]
Subchapter G--Contract Management
PART 2942--CONTRACT ADMINISTRATION AND AUDIT SERVICES
PART 2943--CONTRACT MODIFICATIONS
PART 2944--SUBCONTRACTING POLICIES AND PROCEDURES
PART 2945--GOVERNMENT PROPERTY
PARTS 2946-2951 [RESERVED]
Subchapter H--Clauses And Forms
PART 2952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 2953--FORMS
SUBCHAPTER A--General
PART 2901--DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
Subpart 2901.0--Scope of Subpart
Sec.
2901.001 Scope of subpart.
Subpart 2901.1--Purpose, Authority, Issuance
2901.101 Purpose.
2901.103 Authority.
2901.105-2 Arrangement of regulations.
2901.105-3 Copies.
Subpart 2901.2--Administration
2901.201-1 Maintenance of the FAR.
Subpart 2901.3--Agency Acquisition Regulations
2901.302 Limitations.
2901.304 Agency control and compliance procedures.
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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 2901.6--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.
2901.603-3 Appointment.
2901.603-4 Terminations.
2901.603-70 Responsibility of other government personnel.
2901.603-71 Contracting officer's technical representatives (COTR).
2901.603-72 Administrative procurement management 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
2901.001 Scope of part.
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
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.105-1
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.
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 Senior 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 Senior Procurement Executive 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.
[[Page 22993]]
2901.404 Class deviations.
(a) The Senior Procurement Executive 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 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.
(2) The Assistant Secretary for Administration and Management 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 Senior Procurement Executive, may delegate
additional procurement authority subject to the issuance of warrants by
the Senior 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 micro-purchase
threshold, must be requested by the HCA in writing and signed by the
Senior 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 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 could have been 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 (Ratifying
Dollar threshold official) Steps to be followed
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Below the micro-purchase threshold...... Head of the Contracting Office.. 1 through 5 & 7.
Between the micropurchase threshold and Head of Contracting Activity.... 1 through 5 & 7.
the Simplified Acquisition Threshold.
Above the Simplified Acquisition Assistant Secretary for 1 through 7.
Threshold. Administration and Management,
after review by the 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
(1) 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.
(2) 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,
[[Page 22994]]
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.
(3) 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.)
(4) Legal review is required before ratification by the ratifying
official.
(5) 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.
(6) For cases over the simplified acquisition threshold, all
documentation for steps (1) through (5) 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.
(7) 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 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 Senior 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 Institute's
curriculum. These references are available at:
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL97-01.html html,
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-3.html html, and through the Federal Acquisition Institute (FAI) at:
http://www.faionline.com/fai/campus/index4.htm 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, and closeout functions.
(a) Purchase Cards (micro-purchase 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 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 July 26, 2004, 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 May 27, 2004, 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 May
27, 2004, 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
[[Page 22995]]
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 so as 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.
(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 May 27, 2004, 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.
[[Page 22996]]
(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 management reviews.
(a) The Senior Procurement Executive is responsible for performing
administrative procurement reviews for each procurement office in the
Department of Labor, except the Office of the 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 Senior Procurement Executive 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.
(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
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 Assistant Secretary for Administration and
Management and is defined in FAR 6.5 and 2906.5. If the appointee is
recused from a procurement action, the Assistant Secretary for
Administration and Management 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 Senior
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 Employee Benefits
Security Administration, Employment Standards Administration, Women's
Bureau, Office of the Solicitor, Bureau of Labor Statistics, Office of
Disability Employment Policy, 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 Senior 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 the 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.
Senior Procurement Executive means the Deputy Assistant Secretary
for Administration and Management as defined at FAR 2.101.
[[Page 22997]]
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 Definitions.
2903.104-5 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
2903.104-7 Violations or possible violations of standards of
conduct.
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 the 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.
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 the 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 FAR 10).
2903.104-7 Violations or possible violations of standards of conduct.
(a) The Senior 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, the Senior 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 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 the 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 Assistant Secretary for
Administration and Management 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 Assistant Secretary
for Administration and Management 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) Except as allowed in paragraph (a) of this section, the
Department of Labor may enter into a negotiated contract or an
amendment to an existing contract
[[Page 22998]]
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 Assistant Secretary for Administration and Management.
(d) Approval of a decision to grant an exception as provided in
this 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 Policy Review Board.
PART 2904--ADMINISTRATIVE MATTERS
Subpart 2904.8--Government Contract Files
Sec.
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 2904.8--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 their contracting activities. The HCA must provide one or
more representative contract files to the Director, Division of
Acquisition Management Services, as requested for comment.
Appendix A to Part 2904
----------------------------------------------------------------------------------------------------------------
Title of report Reference Date due Submitted to
----------------------------------------------------------------------------------------------------------------
Report of Proposed Federal 29 CFR 1.4............. Annually; 20-Aug....... ESA Davis Bacon.
Construction*.
Contractor Report of Government FAR Chapter 45;........ Annually; 31-Oct....... Business Operations
Property*. Center.
Major Preference Program Goals and DLMS 2 1000............ By the 20th of each Office of Small
Achievements Report*. month. Business Programs.
A-76 & FAIR Act Inventory............ FAIR ACT & OMB MEMO.... June 30th of each year. Office of Competitive
Sourcing.
SF 294, Subcontracting Report for FAR Subpart 19.7;...... Semi-annually;......... Contracting Officer.
Individual Contracts.
SF 294................. April 30; 30-Oct....... Office of Small
Business Programs.
SF 295, Summary Subcontract Report... FAR Subpart 19.7;...... Semi-annually March 30; Contracting Officer.
September 30.
Value Engineering Report*............ OMB Circular A-131..... Annually; 7-Dec........ Office of Acquisition
and Management Support
Services.
Report on Federal Support to Section 3(a)(7) of the Annually; O/A 15-May... Upon request From
Universities, Colleges, and National Science National Science
Nonprofit Institutions. Foundation (NSF) Act. Foundation.
Procurement Forecast Initial and Pub. L. 100-656;....... Sept 15 (Init.) and Apr Division of Acquisition
Update. 15 (Update). Management Services.
----------------------------------------------------------------------------------------------------------------
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
2905.501 Scope.
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 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, if a list of interested parties is collected
in reference to a solicitation, it 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
[[Page 22999]]
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.
HCAs are authorized to release long-range acquisition estimates
under the conditions in FAR 5.404-1.
Subpart 2905.5--Paid Advertisements
2905.501 Scope.
This subpart provides policies and procedures for the procurement
of paid advertising as covered by 5 U.S.C. 302, and 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.
(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 by
mail from the Director, Division of Acquisition Management Services,
200 Constitution Ave., NW., Washington, DC 20210-0001), or
electronically from http://www.dol.gov/oasam/programs/boc/prb.htm htm. 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 Additional requirements for acquisitions involving
bundling.
Subpart 2907.3--Contractor Versus Government Performance
02907.300 Availability of inventory.
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 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 contracts, or
other indefinite-delivery contracts 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 Availability of inventory.
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 DOL''.
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 Office of
Small Business Program 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.
2909.406-3 Procedures.
2906.407 Suspension.
[[Page 23000]]
2909.407-1 General.
Subpart 2909.5--Organizational and Consultant 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.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 at http://www.dnb.com/ com/).
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/ 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 Senior 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 Senior
Procurement Executive, as the debarring and suspending official,
following review by the activity's legal counsel.
(2) The Senior 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 Assistant Secretary for
Administration and Management 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 Assistant
Secretary for Administration and Management 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 Assistant Secretary for Administration and Management approves
such action.
2909.406 Debarment.
2909.406-1 General.
(a) The Senior Procurement Executive 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 Senior 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
[[Page 23001]]
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 Senior Procurement Executive.
(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
Senior Procurement Executive 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 Senior Procurement Executive must afford the contractor
the opportunity to appear at an informal fact-finding proceeding 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 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 Senior Procurement Executive 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 Senior 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 Senior 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 of 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 Senior 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 Senior Procurement
Executive 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 Senior 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 Senior 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 Senior Procurement Executive is delegated authority by the
Assistant Secretary for Administration and Management 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 Senior
Procurement Executive 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 Legislation and Legal Counsel, and the Director, Division
of Acquisition Management Services.
(b) Referrals must be made by the HCA 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 www.contractdirectory.gov site or other
[[Page 23002]]
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.
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.
Subpart 2913.2--Actions At Or Below The Micro-Purchase Threshold
2913.201 General.
Subpart 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.
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
2913.201 General.
The Government commercial purchase card must be used in preference
to other methods of procurement for purchases up to the micro-purchase
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 his or her 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, contracting officers are
encouraged to use the Standard Form (SF) SF-1449, when executing
commercial acquisitions. Agencies may use forms other than the SF-1449
and may print on those forms the clauses considered to be suitable for
these purchases. In these instances, 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.
[[Page 23003]]
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 the 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 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 section 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
Department of Labor 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
[[Page 23004]]
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
Task orders against DOL contracts and orders against multi-agency
or Governmentwide contracts for services above the micropurchase
threshold 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.
PART 2917--SPECIAL CONTRACTING METHODS
Sec.
2917.000 Scope of part.
Subpart 2917.2-Options
2917.202 Use of 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 polices and procedures stated in FAR part 17.
Subpart 2917.2--Options
2917.202 Use of 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
[[Page 23005]]
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 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
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 an 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 Assistant Secretary for Administration and
Management 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
2919.704 Subcontracting plan requirements.
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. 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, 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 Office of
Small Business Programs 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
[[Page 23006]]
officers will review requisitions that 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 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)
and (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 the 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 the Office of Small Business Programs before award, the contracting
officer upon award, amendment, or significant modification of a
contract, must forward to the Director, Office of Small Business
Programs, 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, Office of
Small Business Programs, 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
the Office of Small Business Programs for subsequent review and
discussion with the appropriate SBA official.
(b) The Office of Small Business Programs and the SBA should be
notified at least 45 days before initiating final action to terminate
an 8(a) contract.
PARTS 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).
[[Page 23007]]
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.
Sec.
2923.271 Purchase and use of environmentally sound and energy
efficient products and services.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c); 42 U.S.C. 8262(g).
Subpart 2923.2--Energy And Water Efficiency and Renewable Energy
2923.271 Purchase and use of environmentally sound and energy
efficient products and services.
The Department will implement policies and procedures that comply
with the intent and specific goals mandated by the following statutes
and executive orders and any other issuances as may be mandated to
maximize cost efficient energy management:
(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! at:
www.gsaadvantage.gov.
(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, dated April 21, 2000.
This Executive Order assists with developing an environmental
management system. The following sources are provided as references for
the subject matter indicated:
(1) 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. http://www.ofee.gov/gp/gp.htm htm.
(2) The Comprehensive Procurement Guidelines program is part of the
Environmental Protection Agency'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. www.epa.gov/cpg.
(3) 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 procurement.
www.energystar.gov.
(4) The Alternative Fuels Data Center is a one-stop shop for agency
alternative fuel and vehicle information needs. http://www.afdc.nrel.gov gov.
(5) The Defense Logistics Agency has created an electronic mall for
buying environmentally preferable products. www.emall.dla.mil.
PARTS 2924-2927 [RESERVED]
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
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 28.20l
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 html.
[[Page 23008]]
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
Subpart 2929.1--General
Sec.
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
Subpart 2930.2--CAS Program Requirements
Sec.
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 HCA 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 prescribed in FAR
30.201-5(e) and submitted to the HCA.
PART 2931--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 2931.1--Applicability
Sec.
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
Subpart 2932.4--Advance Payments for Non-Commercial Items
Sec.
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 Secretaries, Inspector General, Bureau Chief,
Deputy Under Secretary, Solicitor of Labor, Commissioner, or Director
of the 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
Subpart 2933.1--Protests
Sec.
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, 200
Constitution Ave., NW., S-1513 B, 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.
[[Page 23009]]
(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 Assistant
Secretary for Administration and Management, such as the Competition
Advocate. The deciding official, whether a contracting officer or
Agency Protest Official, must work in consultation with the Office of
the Solicitor to resolve the 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 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 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 offer 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 Senior Procurement Executive 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
[[Page 23010]]
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 Senior Procurement Executive within (two) 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, Suite 400 North, 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 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 19-100.
PARTS 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
2936.516 Quality surveys.
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
Assistant Secretary for Administration and Management. 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
2936.516 Quality surveys.
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
[[Page 23011]]
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
Subpart 2937.1--Service Contracts-General
Sec.
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
2937.103 Contracting officer responsibility.
The HCA is responsible for establishing internal review and
approval procedures for service contracts in accordance with OFPP
Policy Letter 93-1 (Reissued), ``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?
(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?
[[Page 23012]]
(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 Assistant Secretary for
Administration and Management for review by the Procurement Review
Board, for Assistant Secretary for Administration and Management
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 (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 PBC.
PARTS 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
2942.1501 Scope.
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
2942.1501 Scope.
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
Past Performance Information Retrieval System (PPIRS), and specifically
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, including compliance with subcontracting plans. 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 Past Performance Information Retrieval
System (PPIRS), and specifically 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
[[Page 23013]]
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. FAR 13.307(c)(3) allows, and the Department of Labor prefers,
the use of the SF-30 for simplified acquisitions. 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.
PART 2944--SUBCONTRACTING POLICIES AND PROCEDURES
Subpart 2944.1--General
Sec.
2944.101 Waiver.
Subpart 2944.2--Consent To Subcontract
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.
2944.101 Waiver.
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.
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 Assistant Secretary for Administration and
Management 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 contractor's purchasing system review is required by
the contracting officer, the effort must be coordinated with the OASAM
Business Operations Center's 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
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-
furnished property (GFP) in the possession of contractors. As a
minimum, the file must contain the following:
(a) A copy of the applicable portions of the contract that list the
GFP;
(b) Contracting officer's letters assigning the GFP 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 GFP in the possession of contractors or subcontractors under the
contract;
(g) Documentation of the screening and disposal of all GFP 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
[[Page 23014]]
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 2901.603.71:
Contracting officer's technical representative (COTR) May 2004
(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 2953.1--General
Sec.
2953.100 Request for Recommendation by Procurement Review Board DL
1-490.
2953.101 Simplified Acquisition Documentation Checklist DL 1-2216.
2953.102 Quotation for Simplified Acquisitions DL 1-2078.
2953.103 Acquisition Screening and Review--over $100,000 DL 1-2004.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 2953.1--General
2953.100 Request for Recommendation by Procurement Review Board DL 1-
490.
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 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
Procurement Review Board.
BILLING CODE 4910-23-P
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[GRAPHIC] [TIFF OMITTED] TR27AP04.001
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[GRAPHIC] [TIFF OMITTED] TR27AP04.002
[[Page 23018]]
[GRAPHIC] [TIFF OMITTED] TR27AP04.003
[[Page 23019]]
2953.101 Simplified Acquisition Documentation Checklist DL 1-2216.
The following checklist must be used to document all simplified
acquisitions at or below the simplified acquisition threshold.
[GRAPHIC] [TIFF OMITTED] TR27AP04.004
[[Page 23020]]
2953.102 Quotation for Simplified Acquisitions DL 1-2078.
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.
[GRAPHIC] [TIFF OMITTED] TR27AP04.005
[[Page 23021]]
2953.103 Acquisition Screening and Review--over $100,000 DL 1-2004.
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.
[GRAPHIC] [TIFF OMITTED] TR27AP04.006
[FR Doc. 04-8571 Filed 4-26-04; 8:45 am]
BILLING CODE 4510-23-C