AGRICULTURE ACQUISITION CIRCULAR - USDAAGRICULTURE ACQUISITION CIRCULAR May 15, 1998 AAC 96-01...

AGRICULTURE ACQUISITION CIRCULAR

May 15, 1998 AAC 96-01

Agriculture Acquisition Circular (AAC) 96-01 is issued under the authority of theSenior Procurement Executive. The policies, provisions, and clauses of this Circular areeffective for all solicitations issued after July 14, 1998.

List of Subjects

Item Title

I Preference for Selected Biobased Products

II Miscellaneous Amendments

Issued by: Office of the Assistant Secretary for AdministrationOffice of Procurement and Property ManagementProcurement Policy Division

AAC 96-01 Filing Instructions

Remove Pages Insert Pages

General Structure General StructureStructure of the AGAR to the Structure of the AGAR to the

Subpart Level, pp. 5-10 Subpart Level, pp. 5-10

Part 401 Table of Contents (TOC) Part 401 TOC401-1 and 401-2 401-1 through 401-2.1

402-1 402-1

Part 403 TOC Part 403 TOC403-1 and 403-2 403-1 and 403-2

407-1 407-1

409-1 through 409-3 409-1 through 409-3

411-1 and 411-2 411-1 and 411-2


419-1 through 419-3 419-1 through 419-3


Part 424 TOC Part 424 TOC424-1 424-1


Part 426 TOC426-1 through 426-3

432-3 and 432-4 432-3 and 432-4

434-1 and 434-2 434-1 and 434-2

Part 436 TOC Part 436 TOC

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436-1 through 436-4 436-1 through 436-4

Part 452 TOC Part 452 TOC452-1 through 452-4 452-1 through 452-4452-9 and 452-10 452-9 through 452-10.2

AAC 96-01 ITEM SUMMARY

Item I---Preference for Selected Biobased Products

This final rule adds AGAR Part 426 and amends AGAR Part 452 to establish acquisitionpreferences for selected biobased products; i.e., nonfood, nonfeed products made fromagricultural and forestry materials and animal by-products.

Replacement pages: Part 426 Table of Contents (TOC); 426-1 through 426-3; Part 452TOC; and 452-9 through 452-10.2.

Item II---Miscellaneous Amendments

This final rule amends AGAR Parts 401, 402, 403, 407, 409, 411, 416, 419, 422, 424,425, 432, 434, 436, and 452 to reflect changes in the Federal Acquisition Regulationthrough Federal Acquisition Circular 97-01 and to correct minor errors and omissions inthe AGAR. The following changes have been made to the AGAR:

1. AGAR 401.170 is added to inform users about the USDA DepartmentalAdministration Procurement Homepage.

Replacement pages: Part 401 TOC; 401-1 through 401-2.1

2. AGAR 402.101 is amended by revising “Director, Procurement and PropertyManagement, Policy Analysis and Coordination Center” to read, “Director, Office ofProcurement and Property Management”.

Replacement pages: 402-1

3. AGAR 403.104-5 has been removed and AGAR 403.104-11 has beenredesignated 403.104-10 to reflect amendments to the FAR.

Replacement pages: Part 403 TOC; 403-1 and 403-2

4. AGAR 407.503 is amended in paragraph (b)(4) by revising “activity” to read“activity’s”.


5. The definition of "debarring official" in AGAR 409.403 is amended to clarifythe authority of the Executive Vice President, Commodity Credit Corporation (CCC) toconduct suspension or debarment actions related to CCC commodity contracts.

Replacement pages: 409-1 through 409-3

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6. AGAR 411.171 and 411.404 have been revised to reflect changes to thenumbering of six clauses referenced in these sections.

Replacement pages: 411-1 and 411-2

7. AGAR 416.404, 416.404-2, and 416.405 have been redesignated 416.405,416.405-2, and 416.406, respectively, to reflect amendments to the FAR.


8. The schedule for submission of subcontract award data to the Office of Smalland Disadvantaged Business Utilization by USDA agencies has been changed, and AGAR419.201-73 is amended accordingly.

Replacement pages: 419-1 through 419-3

9. AGAR 419.602-3 has been revised to reflect an amendment to FAR 19.602-3which updated the titles of SBA offices involved in processing Certificates ofCompetency.


10. AGAR 422.608 and 422.608-4 have been removed to reflect amendments tothe FAR.


11. AGAR part 424 is revised to redesignate 424.202 as 424.203 to reflect anamendment to the FAR.

Replacement pages: Part 424 TOC; 424-1

12. AGAR 425.202 has been revised, and AGAR 425.203 and 425.204 have beenremoved, to reflect amendments to the FAR.


13. AGAR 432.111 has been revised to reflect the redesignation of AGAR clause452.232-1 as AGAR clause 452.232-70.


14. The citation to the definition of "major system" in the FAR is corrected to

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conform to an amendment to the FAR. AGAR 434.001 is revised to cite the definition atFAR 2.101.


15. AGAR part 436 is revised to remove subpart 436.3 and to redesignate436.302 as 436.213-2 to reflect an amendment to the FAR.


16. AGAR 436.575, Maximum workweek - construction schedule, is revised toadd a reference to FAR clause 52.236-15, Schedules for Construction Contracts.


17. Clauses 452.211-1 through 452.211-6 are redesignated 452.211-70 through452.211-75, respectively, to conform to the numbering scheme established by FAR 1.303. Clause 452.232-1 likewise is redesignated 452.232-70 to conform to this numberingsystem.

Replacement pages: Part 452 TOC; 452-1 through 452-4; 452-10.2

AAC 96-01 MAY 15, 1998

AGRICULTURE ACQUISITION REGULATION

General Structure

SUBCHAPTER A--GENERALPart 401--Agriculture Acquisition Regulation SystemPart 402--Definitions of Words and TermsPart 403--Improper Business Practices and Personal Conflicts of InterestPart 404--Administrative Matters

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNINGPart 405--Publicizing Contract ActionsPart 406--Competition RequirementsPart 407--Acquisition PlanningPart 408--Required Sources of Supplies and ServicesPart 409--Contractor QualificationsPart 410--[Reserved]Part 411--Describing Agency Needs Part 412--Acquisition of Commercial Items

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPESPart 413--Simplified Acquisition ProceduresPart 414--Sealed BiddingPart 415--Contracting by NegotiationPart 416--Types of ContractsPart 417--Special Contracting MethodsPart 418--[Reserved]

SUBCHAPTER D--SOCIOECONOMIC PROGRAMSPart 419--Small Business ProgramsPart 420--[Reserved] Part 421--[Reserved]Part 422--Application of Labor Laws to Government AcquisitionsPart 423--Environment, Conservation, Occupational Safety, and Drug-Free

WorkplacePart 424--Protection of Privacy and Freedom of InformationPart 425--Foreign AcquisitionPart 426--Other Socioeconomic Programs

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTSPart 427--Patents, Data, and Copyrights

AAC 96-01 MAY 15, 1998

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Part 428--Bonds and InsurancePart 429--[Reserved]Part 430--Cost Accounting Standards AdministrationPart 431--Contract Cost Principles and ProceduresPart 432--Contract FinancingPart 433--Protests, Disputes and Appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTINGPart 434--Major System AcquisitionPart 435--Research and Development ContractingPart 436--Construction and Architect-Engineer ContractsPart 437--Service ContractingPart 438--[Reserved]Part 439--[Reserved]Part 440--[Reserved]Part 441--Acquisition of Utility Services

SUBCHAPTER G--CONTRACT MANAGEMENTPart 442--Contract AdministrationPart 443--[Reserved]Part 444--[Reserved]Part 445--Government PropertyPart 446--Quality AssurancePart 447--TransportationPart 448--[Reserved] Part 449--Termination of ContractsPart 450--Extraordinary Contractual ActionsPart 451--[Reserved]

SUBCHAPTER H--CLAUSES AND FORMSPart 452--Solicitation Provisions and Contract ClausesPart 453--Forms

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PART 421--[RESERVED]

PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

422.1 Basic Labor Policies422.2 [Reserved]422.3 Contract Work Hours and Safety Standards Act422.4 Labor Standards for Contracts Involving Construction422.5 [Reserved]422.6 Walsh-Healey Public Contracts Act422.7 [Reserved]422.8 Equal Employment Opportunity422.9 [Reserved]422.10 [Reserved]422.11 [Reserved]422.12 [Reserved]422.13 Special Disabled and Vietnam Era Veterans422.14 Employment of the Handicapped422.15 [Reserved]

PART 423--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

423.1 Pollution Control and Clean Air and Water423.2 Energy Conservation423.3 [Reserved]423.4 Use of Recovered Materials423.5 Drug-Free Workplace423.6 Notice of Radioactive Material423.7 Contracting for Environmentally Preferable and Energy-Efficient Products

and Services423.8 [Reserved]423.9 [Reserved]

PART 424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION424.1 Protection of Individual Privacy424.2 Freedom of Information Act

PART 425--FOREIGN ACQUISITION425.1 Buy American Act--Supplies425.2 Buy American Act--Construction Materials425.3 Balance of Payments Program425.4 Trade Agreements

AAC 96-01 MAY 15, 1998

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425.5 [Reserved]425.6 [Reserved]425.7 [Reserved]425.8 [Reserved]425.9 Additional Foreign Acquisition Clauses425.10 Implementation of Sanctions Against Countries That Discriminate Against

United States Products or Services in Government Procurement

PART 426–OTHER SOCIOECONOMIC PROGRAMS426.1 [Reserved]426.2 [Reserved]426.3 [Reserved]426.70 Preference for Selected Biobased Products

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 427--PATENTS, DATA AND COPYRIGHTS427.1 General427.2 [Reserved]427.3 [Reserved]427.4 [Reserved]427.5 [Reserved]427.6 [Reserved]

PART 428--BONDS AND INSURANCE428.1 Bonds428.2 Sureties428.3 Insurance


PART 430---COST ACCOUNTING STANDARDS ADMINISTRATION430.1 [Reserved]430.2 CAS Program Requirements430.3 [Reserved]430.4 [Reserved]430.5 [Reserved]430.6 [Reserved]

AAC 96-01 MAY 15, 1998

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PART 431--CONTRACT COST PRINCIPLES AND PROCEDURES431.1 Applicability431.2 [Reserved]431.3 [Reserved]431.4 [Reserved]431.5 [Reserved]431.6 [Reserved]431.7 [Reserved]

PART 432--CONTRACT FINANCING432.1 Non-Commercial Item Purchase Financing432.2 Commercial Item Purchase Financing432.3 Loan Guarantees for Defense Production432.4 Advance Payments for Non-Commercial Items432.5 [Reserved]432.6 Contract Debts432.7 Contract Funding432.8 Assignment of Claims432.9 Prompt Payment432.10 Performance-Based Payments432.11 [Reserved]

PART 433--PROTESTS, DISPUTES AND APPEALS433.1 Protests433.2 Disputes and Appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

PART 434--MAJOR SYSTEM ACQUISITION434.0 General434.1 [Reserved]

PART 435--RESEARCH AND DEVELOPMENT CONTRACTING

PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS436.1 [Reserved]436.2 Special Aspects of Contracting for Construction436.3 [Reserved]436.4 [Reserved]436.5 Contract Clauses

AAC 96-01 MAY 15, 1998

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436.6 Architect-Engineer Services436.7 [Reserved]

PART 437--SERVICE CONTRACTING437.1 Service Contracts - General437.2 Advisory and Assistance Services437.3 [Reserved]437.4 [Reserved]




PART 441--ACQUISITION OF UTILITY SERVICES441.1 [Reserved]441.2 Acquiring Utility Services441.3 [Reserved]441.4 [Reserved]441.5 [Reserved]441.6 [Reserved]441.7 [Reserved]

SUBCHAPTER G--CONTRACT MANAGEMENT

PART 442--CONTRACT ADMINISTRATION442.1 Interagency Contract Administration and Audit Services442.2 [Reserved]442.3 [Reserved]442.4 [Reserved]442.5 [Reserved]442.6 [Reserved]442.7 [Reserved]442.8 [Reserved]442.9 [Reserved]442.10 [Reserved]442.11 [Reserved]442.12 [Reserved]442.13 [Reserved]442.14 [Reserved]

AAC 96-01 MAY 15, 1998

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442.15 Contractor Performance Information442.16 [Reserved]



PART 445--GOVERNMENT PROPERTY445.1 [Reserved]445.2 [Reserved]445.3 Providing Government Property to Contractors445.4 Contractor Use and Rental of Government Property445.5 [Reserved]445.6 Reporting, Redistribution and Disposal of Contractor Inventory

PART 446--QUALITY ASSURANCE446.1 [Reserved]446.2 [Reserved]446.3 Contract Clauses446.4 [Reserved]446.5 [Reserved]446.6 [Reserved]446.7 [Reserved]446.8 [Reserved]

PART 447--TRANSPORTATION447.1 [Reserved]447.2 [Reserved]447.3 Transportation in Supply Contracts447.4 [Reserved]447.5 [Reserved]


PART 449--TERMINATION OF CONTRACTS449.1 General Principles449.2 [Reserved]449.3 [Reserved]449.4 Termination for Default449.5 Contract Termination Clauses449.6 [Reserved]

AAC 96-01 MAY 15, 1998

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PART 450--EXTRAORDINARY CONTRACTUAL ACTIONS450.1 General450.2 Delegation of and Limitations on Exercise of Authority450.3 Contract Adjustments450.4 [Reserved]


SUBCHAPTER H--CLAUSES AND FORMS

PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES452.1 [Reserved]452.2 Texts of Provisions and Clauses452.3 [Reserved]

PART 453--FORMS453.1 General453.2 Prescription of Forms453.3 Illustrations of Forms

AAC 96-01 MAY 15, 1998

SUBCHAPTER A--GENERAL

PART 401--AGRICULTURE ACQUISITION REGULATION SYSTEM

TABLE OF CONTENTSSec.401.000 Scope of Part.

SUBPART 401.1--PURPOSE, AUTHORITY, ISSUANCE401.101 Purpose.401.103 Authority.401.104 Applicability.401.105 Issuance.401.105-1 Publication and code arrangement.401.105-2 Arrangement of regulations.401.105-3 Copies.401.106 OMB approval under the Paperwork Reduction Act.401.170 Electronic access to regulatory information.

SUBPART 401.2--ADMINISTRATION401.201 Maintenance of the FAR.401.201-1 The two councils.

SUBPART 401.3--AGENCY ACQUISITION REGULATIONS401.301 Policy.401.304 Agency control and compliance procedures.401.370 Exclusions.401.371 AGAR Advisories.401.372 Departmental directives.

SUBPART 401.4--DEVIATIONS FROM THE FAR AND AGAR401.402 Policy.401.403 Individual deviations.401.404 Class deviations.

SUBPART 401.6--CONTRACTING AUTHORITY AND RESPONSIBILITIES401.601 General.401.602 Contracting officers.401.602-3 Ratification of unauthorized commitments.401.603 Selection, appointment, and termination of appointment.401.603-1 General.

Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

401-1

PART 401AGRICULTURE ACQUISITION

REGULATION SYSTEM

401.000 Scope of Part. 401.104 Applicability.

This part presents basic policies and The FAR and AGAR apply to allgeneral information about the USDA acquisitions of supplies andDepartment of Agriculture's (USDA) services (including construction) whichAcquisition Regulation, subsequently obligate appropriated funds, unlessreferred to as the AGAR. The AGAR is otherwise specified in this chapter oran integral part of the Federal excepted by law. Acquisition Regulations System.

SUBPART 401.1--PURPOSE,AUTHORITY, ISSUANCE 401.105-1 Publication and code

401.101 Purpose.

(a) The AGAR provides for the Code of Federal Regulations (CFR) ascodification and publication of uniform Chapter 4 of Title 48, Federal Acquisi-policies and procedures for acquisitions tion Regulations System, to implementby contracting activities within USDA. and supplement Chapter 1 which

(b) The purpose of the AGAR is to 499 have been assigned to USDA by theimplement the Federal Acquisition Office of the Federal Register.Regulation (FAR), where furtherimplementation is needed, and to (b) The AGAR and its subsequentsupplement the FAR when coverage is changes are published in: (1) daily issuesneeded for subject matter not covered in of the Federal Register, (2) cumulativethe FAR. The AGAR is not by itself a form in the CFR, and (3) loose-leaf formcomplete document, as it must be used in for distribution within USDA.conjunction with the FAR.

401.103 Authority.

The AGAR and amendments theretoare issued under 5 U.S.C. 301 and40 U.S.C. 486(c). The Senior

Procurement Executive (SPE) has thedelegated authority to promulgateDepartmental acquisition regulations.

401.105 Issuance.

arrangement.

(a) The AGAR is codified in the

constitutes the FAR. Parts 400 through

(c) Section 553(a)(2) of theAdministrative Procedure Act, 5 U.S.C. 553, provides an exceptionfrom the standard public rulemakingprocedures to the extent that the ruleinvolves a matter relating to agencymanagement or personnel or to public

AAC 96-01 MAY 15, 1998401.105-2 AGRICULTURE ACQUISITION REGULATION (AGAR)

401-2

property, loans, grants, benefits, orcontracts. OFPP Policy Letter 83-2 requires rulemaking for substantiveacquisition rules but allows discretion inthe matter for other than significantissues meeting the stated criteria. TheAGAR has been promulgated and may berevised from time to time in accor-dancewith the rulemaking procedures of theAdministrative Procedure Act and OFPPPolicy Letter 83-2.

401.105-2 Arrangement ofregulations.

AGAR coverage parallels the FARin format, arrangement, and numberingsystem. However, subdivisions belowthe section and subsection levels may notalways correlate directly to FARdesignated paragraphs andsubparagraphs.

401.105-3 Copies.

Copies of the AGAR published inCFR form may be purchased from theSuperintendent of Documents, Govern-ment Printing Office, Washington, D.C.20402. Requests should referenceChapter 4 of Title 48 CFR.

401.106 OMB approval under thePaperwork Reduction Act.

The following OMB controlnumbers apply to USDA solicitations andspecified information collections withinthe AGAR:

AGAR OMB Controlsegment Number

411.170 0505-0014

415.4 0505-0013

436.575 0505-0011

437.110 0505-0015

437.270 0505-0016

452.211-1 0505-0014

452.215-71 0505-0013

452.236-75 0505-0011

452.237-74 0505-0015

452.237-76 0505-0016

401.170 Electronic access toregulatory information.

The USDA DepartmentalAdministration Procurement Homepageprovides access to the AGAR, AGARamendments (circulars), AGARAdvisories, and other USDA procure-ment policy and guidance in electronicform. The Internet address for the

AAC 96-01 MAY 15, 1998AGRICULTURE ACQUISITION REGULATION 401.201

401-2.1

Procurement Homepage is URLhttp://www.usda.gov/da/procure.html.

SUBPART 401.2--ADMINISTRATION

401.201 Maintenance of the FAR.

401.201-1 The two councils.

(a) USDA's representative on the

Civilian Agency Acquisition Council isdesignated by the SPE.

(b) The Procurement Policy Divisionwill coordinate proposed FAR revisionswith interested contracting activities.

SUBPART 401.3--AGENCYACQUISITION REGULATIONS

[The next page is 401-3.]

AAC 96-01 MAY 15, 1998

402-1

PART 402

DEFINITIONS OF WORDS ANDTERMS

402.000 Scope of part.

As used throughout this chapter, thefollowing words and terms are used asdefined in this subpart unless the contextin which they are used clearly requires adifferent meaning, or a differentdefinition is prescribed for a particularpart or portion of a part.

SUBPART 402.1--DEFINITIONS

402.101 Definitions.

"Agency head" or "Head of theAgency" means the Secretary ofAgriculture, Deputy Secretary, or theAssistant Secretary for Administration.

"Acquisition official" means anindividual who has been delegatedauthority to manage or to exerciseacquisition functions and responsibilities.

"Head of the contracting activity"(HCA) means the official who has overallresponsibility for managing thecontracting activity (i.e., Chief, ForestService; Administrator, AgriculturalResearch Service; etc.), or the individualdesignated by such an official to carryout the functions of the HCA.

"Senior Procurement Executive"(SPE) means the agency officialappointed as such by the head of theagency pursuant to Executive Order

12931. The Director, Office ofProcurement and Property Management,has been designated as the USDA SPE.

AAC 96-01 MAY 15, 1998

PART 403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTSOF INTEREST

TABLE OF CONTENTS

SUBPART 403.1--SAFEGUARDS

Sec.403.101 Standards of conduct.403.101-3 Agency regulations.403.104 Procurement integrity.403.104-5 [Reserved]

403.104-10 Violations or possible violations.

SUBPART 403.2--CONTRACTOR GRATUITIES TO GOVERNMENTPERSONNEL403.203 Reporting suspected violations of the gratuities clause.403.204 Treatment of violations.

SUBPART 403.3--REPORTS OF SUSPECTED ANTITRUST VIOLATIONS403.303 Reporting suspected antitrust violations.

SUBPART 403.4--CONTINGENT FEES403.409 Misrepresentations or violations of the Covenant Against Contingent

Fees.

SUBPART 403.5--OTHER IMPROPER BUSINESS PRACTICES403.502 Subcontractor kickbacks.

SUBPART 403.6--CONTRACTS WITH GOVERNMENT EMPLOYEES ORORGANIZATIONS OWNED OR CONTROLLED BY THEM403.602 Exceptions.403.603 Responsibilities of the contracting officer.

SUBPART 403.8--LIMITATION ON THE PAYMENT OF FUNDS TOINFLUENCE FEDERAL TRANSACTIONS403.806 Processing suspected violations.


AAC 96-01 MAY 15, 1998

403-1

PART 403

IMPROPER BUSINESSPRACTICES AND PERSONAL

CONFLICTS OF INTEREST

SUBPART 403.1--SAFEGUARDS

403.101 Standards of Conduct

403.101-3 Agency Regulations.

(a) The standards of conduct forUSDA procurement officials are theuniform standards established by theOffice of Government Ethics in 5 CFRPart 2635, Standards of Ethical Conductfor Employees of the Executive Branch,and FAR 3.104, Procurement Integrity.

(b) Procurement officials and otheremployees who require adviceconcerning the application of standardsof conduct to any acquisition issue shallobtain ethics advisory opinions fromethics advisory officials in their agencypersonnel offices.

403.104 Procurement integrity.

403.104-5 [Reserved]

403.104-10 Violations or possibleviolations.

(a) The contracting officer shallforward information concerning anyviolation or possible violation of the

Procurement Integrity Act (41 U.S.C. 423) to the chief of thecontracting office.

(b) Heads of contracting activities(HCA's) or their designees who receiveinformation concerning any violation orpossible violation of the Act shall takeaction in accordance with FAR 3.104-10(b).

SUBPART 403.2--CONTRACTORGRATUITIES TO GOVERNMENT

PERSONNEL

403.203 Reporting suspectedviolations of the gratuities clause.

A suspected violation of the contractclause, FAR 52.203-3, Gratuities, shallbe reported immediately to the cognizantcontracting officer in writing, stating thecircumstances surrounding theincident(s), the date(s), and names of allparties involved. The contracting officershall review the report for completeness,add any additional information deemednecessary and a recommendation foraction, and submit the report to theHCA.

403.204 Treatment of violations.

The HCA shall review the report andconsult with the Offices of GeneralCounsel and Inspector General todetermine whether further action shouldbe pursued. If it is found that the factsand circumstances warrant further action,the HCA shall give the contractor

403.303 AGRICULTURE ACQUISITION REGULATION (AGAR)

403-2

a formal written notice which reported immediately to the chief of thesummarizes the reported violation and contracting office. The chief of theaffords the contractor the opportunity to contracting office shall determine if amake a written or oral response within a violation has occurred and report anyreasonable, specified period after receipt violation to the Office of Inspectorof the notice. The notice shall be sent by General. The chief of the contractingcertified mail with return receipt office shall take action in accordancerequested. Oral presentations shall with FAR 3.409(b). follow the procedures outlined in FAR3.204(b). The HCA shall furnish copies (b) If the chief of the contractingof any adverse determination to the office decides to refer the case to thecontracting officer and the Department Department of Justice, it should beDebarring Officer for their subsequent referred through the Office of Inspectorconsiderations under FAR 3.204(c)(1) General with a copy of the report andand (2), respectively. referral submitted through the HCA to

SUBPART 403.3--REPORTS OFSUSPECTED ANTITRUST SUBPART 403.5--OTHER

VIOLATIONS IMPROPER BUSINESS

403.303 Reporting suspected antitrustviolations. 403.502 Subcontractor kickbacks.

Contracting officers shall report the Contracting officers shall report thecircumstances of suspected violations of circumstances of suspected violations ofantitrust laws to the Office of Inspector the Anti-Kickback Act (41 U.S.C. 51-General in accordance with procedures 54) to the Office of Inspector General inin Departmental Regulations (1700 accordance with procedures inseries). Departmental Regulations (1700 series).

SUBPART 403.4--CONTINGENT SUBPART 403.6--CONTRACTSFEES WITH GOVERNMENT

403.409 Misrepresentations or ORGANIZATIONS OWNED ORviolations of the Covenant Against CONTROLLED BY THEMContingent Fees.

( a) A suspected misrepresentationor violation of the Covenant Against The HCA is authorized to except aContingent Fees shall be documented in contract from the policy in FAR 3.601.writing by the contracting officer and

the Senior Procurement Executive.

PRACTICES

EMPLOYEES OR

403.602 Exceptions.

AAC 96-01 MAY 15, 1998

407-1

PART 407

ACQUISITION PLANNING

SUBPART 407.1--ACQUISITIONPLANS

407.103 Agency-head responsibilities.

Heads of Contracting Activities following:(HCA's) shall develop proceduresto comply with FAR 7.103. (1) the HCA’s assessment of

407.170 Advance acquisition plans.

Each HCA shall implement an (2) the basis for thatadvance acquisition planning system in assessment (include references to theaccordance with procedures in definition and policy in FAR subpart 7.5Departmental Directives (5000 series). and/or Office of Federal Procurement

SUBPART 407.3--CONTRACTORVERSUS GOVERNMENT

PERFORMANCE

407.302 General.

The requirements of FAR Subpart7.3 and OMB Circular A-76 areimplemented by Departmental Directives(2100 series).

SUBPART 407.5--INHERENTLYGOVERNMENTAL FUNCTIONS

407.503 Policy.

(a) HCA's shall establishprocedures to ensure that requestingactivities provide the written determina-tion required by FAR 7.503(e), whensubmitting requests for procurement ofservices.

(b) In the event of a disagreementas to whether the functions to beperformed are inherently governmental,the HCA may refer the matter to theSenior Procurement Executive (SPE) forresolution. When submittingdisagreements to the SPE for resolutionthe HCA shall provide a summary of theareas of disagreement, supported by the

whether the services are “inherentlygovernmental”;

Policy letter 92-1);

(3) a copy of the statement ofwork; and,

(4) the requesting activity’s written determination in accordance withFAR 7.503(e).

(c) Such disagreements shall be resolved prior to issuance of thesolicitation.

AAC 96-01 MAY 15, 1998

409-1

PART 409

CONTRACTOR QUALIFICATIONS

SUBPART 409.4--DEBARMENT,SUSPENSION AND INELIGIBILITY


"Debarring official." Pursuant to theSecretary's delegations of authority in 7CFR 2.24, the Senior ProcurementExecutive (SPE) is designated as thedebarring official (Department DebarringOfficer) with the following exceptions:

(a) for commodity contractsawarded on behalf of the CommodityCredit Corporation (CCC), the ExecutiveVice President, CCC, or his designee isdesignated as the debarring officialpursuant to 7 CFR part 1407.

(b) for contracts awarded under theSchool Lunch and Surplus RemovalPrograms (42 U.S.C. 1755 and 7 U.S.C.612c), the Department Debarring Officerhas delegated debarring authority to theAgricultural Marketing Service (AMS).

409.404 List of Parties Excluded fromFederal Procurement andNonprocurement Programs.

The Department Debarring Officer isUSDA's single point of contact withGSA for debarment and suspensionactions taken under this subpart. The

debarring official for AMS shall notifythe Department Debarring Officer ofeach debarment and suspension action bypromptly submitting a copy of thedebarment or suspension notice and anylater changes to the debarment orsuspension status. The DepartmentDebarring Officer will forward a copy ofeach notice to GSA for inclusion in theGovernment-wide list.

409.405 Effect of listing.

Compelling reasons are consideredto be present where failure to contractwith the debarred or suspendedcontractor would seriously harm theagency's programs and preventaccomplishment of mission requirements. The SPE is authorized to make thedeterminations under FAR 9.405. Requests for such determinations shall besubmitted through the head of thecontracting activity (HCA) to the SPE.

409.405-1 Continuation of currentcontracts.

The HCA is authorized to make thedeterminations under FAR 9.405-1.

409.405-2 Restrictions onsubcontracting.

The HCA is authorized to approvesubcontracts with debarred or suspended subcontractors under FAR9.405-2.

AAC 96-01 MAY 15, 1998409.406 AGRICULTURE ACQUISITION REGULATION (AGAR)

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409.406 Debarment.

409.406-3 Procedures.

(a) Investigation and referral. When named affiliates may be represented bya contracting officer becomes aware of counsel or any duly authorizedpossible irregularities or any information representative. Witnesses may be calledwhich may be sufficient cause for by either party. The proceedings shalldebarment, the case shall be immediately be conducted expeditiously and in such areferred through the HCA to the manner that each party will have andebarring official. The case must be opportunity to present all informationaccompanied by a complete statement of considered pertinent to the proposedthe facts (including a copy of any debarment. The contractor shall becriminal indictments, if applicable) provided a copy of a transcript of thealong with a recommendation for action. proceedings under the conditionsWhere the statement of facts indicates established in FAR 9.406-3(b)(2)(ii).the irregularities to be possible criminaloffenses, or for any other reason furtherinvestigation is considered necessary, thematter shall be referred to the HCA whoshould consult with the Office ofInspector General to determine if further (a) Investigation and referral. Wheninvestigation is required prior to a contracting officer becomes aware ofreferring to the debarring official. possible irregularities or any information

(b) Decision-making process. If, suspension, the case shall be immediate-after reviewing the recommendations ly referred through the HCA to theand consulting with the Office of debarring official. The case must beInspector General and Office of the accompanied by a complete statement ofGeneral Counsel, as appropriate, the the facts along with a recommendationdebarring official determines debarment for action. Where the statement of factsis justified, the debarring official shall indicates the irregularities to be possibleinitiate the proposed debarment in criminal offenses, or for any other reasonaccordance with FAR 9.406-3(c) and further investigation is considerednotify the HCA of the action taken. necessary, the matter shall be referred to

(c) Fact-finding proceeding. For Office of Inspector General to determineactions listed under FAR 9.406-3(b)(2), if further investigation is required priorthe contractor shall be given the to referring it to the debarring official.opportunity to appear at an informal

hearing. The hearing should be held at alocation and time that is convenient tothe parties concerned, if at all possible.The contractor and any specifically

409.407 Suspension.

409.407-3 Procedures.

which may be sufficient cause for

the HCA who should consult with the


409-3

(b) Decision-making process.If, after reviewing the recommendationsand consulting with the Office ofInspector General and Office of the (a) The HCA, on a non-delegableGeneral Counsel, as appropriate, the basis, is authorized to waive any generaldebarring official determines suspension rule or procedure in FAR 9.5 when in theis justified, the debarring official shall Government's interest.initiate the proposed suspension inaccordance with FAR 9.407-3(c) and (b) Each request for waiver shallnotify the HCA of the action taken. include:

(c) Fact-finding proceedings. (1) The general rule orFor actions listed under FAR procedure proposed to be waived;9.407-3(b)(2), the contractor shall be (2) An analysis of the potentialgiven the opportunity to appear at an conflict, including the benefits andinformal hearing, similar in nature to the detriments to the Government andhearing for debarments as discussed in prospective contractors;409.406-3(c). (3) A discussion of why the

409.470 Appeals.

A debarred or suspended contractor under FAR 9.504(b).may appeal the debarring official'sdecision by mailing or otherwisefurnishing a written notice within 90 daysfrom the date of the decision to the U.S.Department of Agriculture Board ofContract Appeals, Washington, D.C.20250. A copy of the notice of appealshall be furnished to the debarring officerfrom whose decision the appeal is taken. Appeals under Subpart 409.4 shall begoverned by the rules and procedures ofthe U.S. Department of AgricultureBoard of Contract Appeals set forth in 7CFR, Part 24.

SUBPART 409.5--ORGANIZATIONAL AND

CONSULTANT CONFLICTS OFINTEREST

409.503 Waiver.

conflict cannot be avoided, neutralized, ormitigated; and

(4) Advice of counsel obtained

AAC 96-01 MAY 15, 1998

411-1

PART 411

DESCRIBING AGENCY NEEDS

SUBPART 411.1--SELECTING ANDDEVELOPING REQUIREMENTS producer, or distributor of the item and

DOCUMENTS

411.103 Market acceptance.

(a) The head of the contractingactivity (HCA) may determine thatofferors must demonstrate, in accordancewith FAR 11.103(a), the marketacceptability of their items to be offered.

(b) The contracting officer shallplace a copy of this determination,signed by the HCA, in the solicitationfile.

411.105 Purchase descriptions forservice contracts.

When contract personnel are to beused, the requiring official shall recordon the requisition his or herdetermination whether harm to theGovernment might occur shouldcontractor personnel fail to identifythemselves as non-Government officials.

411.170 Brand name or equal.

(a) A "brand name or equal"purchase description shall include thefollowing type of information:

(i) Identification of the item bygeneric description.

(ii) Make, model number,catalog designation, or other

description, and identification of acommercial catalog where it is listed.

(iii) Name of manufacturer,

complete address.

(iv) All salient characteristicsof the "brand name or equal" product orproducts which have been determined bythe requisitioner to be essential to theGovernment's minimum requirements.

411.171 Solicitation provisions andcontract clauses.

(a) Contracting officers shallinsert the provision at 452.211-70,Brand Name or Equal, in solicitations,other than those for construction, where"brand name or equal" purchasedescriptions are used.

(b) Contracting officers shall insert the clause at 452.211-71, Equal Products Offered, in solicitations, otherthan those for construction, where theprovision at 452.211-70 is included.

(c) Contracting officers shall insert the clause at 452.211-72, Statement of Work/Specifications, whenthe description (statement of work) orspecification(s) is included in Section J ofthe solicitation.

(d) Contracting officers shall insert the clause at 452.211-73,Attachment to Statement ofWork/Specifications, when there are


411-2

attachments to the description(statement of work) or specifications.

SUBPART 411.2---USING ANDMAINTAINING REQUIREMENTS

DOCUMENTS

411.202 Maintenance ofstandardization documents.

Recommendations for changes tostandardization documents are to besubmitted through the SeniorProcurement Executive, who willcoordinate the submission of theserecommendations to the cognizantpreparing activity.

SUBPART 411.4---DELIVERY ORPERFORMANCE SCHEDULES

411.404 Contract Clauses.

(a) The contracting officer shallinsert the clause at 452.211-74, Period of Performance, when it is necessary tospecify a period of performance,beginning on the date of award, date ofreceipt of notice of award, or a specifieddate.

(b) The contracting officer shallinsert the clause at 452.211-75, Effective Period of the Contract, when it isnecessary to specify the effective periodof the contract.

SUBPART 411.6---PRIORITIES ANDALLOCATIONS

411.600 Scope of subpart.

The Defense Priorities and AllocationSystem (DPAS) excludes USDA activities(see 15 CFR700.18(b)). USDA Contracting Officersare not authorized to place rated ordersunder DPAS.

AAC 96-01 MAY 15, 1998

PART 416--TYPES OF CONTRACTS

TABLE OF CONTENTS

Sec.416.000 Scope of part.

SUBPART 416.2--FIXED-PRICE CONTRACTS416.203 Fixed-price contracts with economic price adjustment.416.203-4 Contract clauses.

SUBPART 416.4--INCENTIVE CONTRACTS416.405 Cost-reimbursement incentive contracts.416.405-2 Cost-plus-award-fee contracts.416.406 Contract clauses.416.470 Solicitation provision.

SUBPART 416.5--INDEFINITE DELIVERY CONTRACTS416.505 Ordering.416.506 Solicitation provision and contract clauses.

SUBPART 416.6--TIME-AND-MATERIALS, LABOR-HOUR, AND LETTERCONTRACTS416.603 Letter contracts.416.603-2 Application.416.603-4 Contract clauses.416.670 Contract clauses.

SUBPART 416.7--AGREEMENTS416.702 Basic agreements.


AAC 96-01 MAY 15, 1998

416-1

PART 416

TYPES OF CONTRACTS

416.000 Scope of part.

Heads of contracting activities If the HCA does not designate an FDO,(HCA's) are authorized to establish the chief of the contracting office shallwritten procedures allowing the use of act as the FDO.any contract type described in FAR part16 for acquisitions made under simplified acquisition procedures in FAR part 13.

SUBPART 416.2--FIXED-PRICECONTRACTS

416.203 Fixed-price contracts witheconomic price adjustment.

416.203-4 Contract clauses.

An economic price adjustment clausebased on cost indexes of labor or materialmay be used under the conditions listed inFAR 16.203-4(d) after approval by theHCA and consultation with the Office ofthe General Counsel.

SUBPART 416.4--INCENTIVECONTRACTS

416.405 Cost-reimbursement incentivecontracts.

416.405-2 Cost-plus-award-feecontracts.

The HCA may designate anacquisition official other than thecontracting officer as the feedetermination official (FDO) to make the

final determination of the award fee. Thedesignated official must have warrantedcontracting authority at the same level asthe contracting officer or higher, andshall not have participated in preparingthe contractor performance evaluation.

416.406 Contract clauses.

The contracting officer shall insert aclause substantially the same as theclause at 452.216-70, Award Fee, insolicitations and contracts whichcontemplate the award of cost-plus-award-fee contracts.

416.470 Solicitation provision.

The contracting officer shall insertthe provision at 452.216-71, Base Feeand Award Fee Proposal, in solicitationswhich contemplate the award of a cost-plus-award-fee contract.

SUBPART 416.5--INDEFINITEDELIVERY CONTRACTS

416.505 Ordering.

(a) The Chief, Procurement PolicyDivision, Procurement and PropertyManagement, Policy Analysis andCoordination Center, has beendesignated as the Departmental TaskOrder Ombudsman.

(b) The Departmental Task OrderOmbudsman shall designate a task orderombudsman for each contracting activity. Contracting activity


416-2

ombudsmen shall review and resolve The HCA is authorized to extend thecomplaints from contractors concerning period for defining a letter contracttask or delivery orders placed by the required by FAR 16.603-2(c) in extremecontracting activity. cases where it is determined in writing

(c) Any contractor who is not the Government.satisfied with the resolution of a complaintby a contracting activity ombudsman mayrequest the Departmental Task OrderOmbudsman The contracting officer shall insertto review the complaint. the clause at 452.216-75, Letter

416.506 Solicitation provision andcontract clauses.

(a) The contracting officer shall inserta provision substantially the same as the The contracting officer shall limit theprovision at 452.216-72, Evaluation Government's obligation under a time-Quantities-Indefinite- and-materials or labor-hour contract byDelivery Contract, in solicitations which inserting the clause at 452.216-74,contemplate the award of indefinite- Ceiling Price. quantity or requirements contracts toestablish the basis on which offers will be evaluated.

(b) The contracting officer shall insertthe clause at 452.216-73, Promptly after execution by theMinimum and Maximum Contract Government, the HCA shall furnish toAmounts, in indefinite-delivery, indefinite- the Senior Procurement Executive a copyquantity contracts when the clause at FAR of each basic agreement negotiated with52.216-18 is used. contractors in accordance with FAR

SUBPART 416.6--TIME-AND-MATERIALS, LABOR-HOUR, AND

LETTER CONTRACTS

416.603 Letter contracts.

416.603-2 Application.

that such action is in the best interest of

416.603-4 Contract clauses.

Contract, in a definitive contractsuperseding a letter contract.

416.670 Contract Clauses.

SUBPART 416.7--AGREEMENTS

416.702 Basic Agreements.

16.702.

419-1

PART 419

SMALL BUSINESS PROGRAMS

SUBPART 419.2--POLICIES

419.201 General Policy.

It is the policy of USDA to provide a fair portion of its contracting and (2) Identify available minoritysubcontracting opportunities to small, and women-owned businesses to bedisadvantaged, minority, and women- solicited by competitive procedures. owned businesses. Coordinators shall document the contract

419.201-70 Office of Small andDisadvantaged Business Utilization(OSDBU).

The Office of Small and establish aggressive minority andDisadvantaged Business Utilization women-owned business goals based on(OSDBU) develops rules, policy, the annual review of advance acquisitionprocedures and guidelines for the effective plans.administration of USDA’s small and disadvantaged business (c) Participate in the review of thoseprocurement preference program to contracts which require the successfulinclude minority and women-owned offeror to submit written plans for thebusiness. utilization of small and small disadvan-

419.201-71 Small BusinessCoordinators.

The head of the contracting activity acquisition threshold are reserved(HCA) or a representative of the HCA exclusively for small businesses,shall designate in writing a small business including minority and women-ownedcoordinator in each contracting office. businesses. This policy shall beSupervisors of small businesscoordinators are encouraged to providesufficient time for the coordinators tocarry out their small business programduties. Coordinators’ duties shall include,but not be limited to, the following: goods or services being purchased.

(a) Review each proposedacquisition expected to exceed thesimplified acquisition threshold prior toits solicitation. The coordinator shall:

(1) Recommend section 8(a)action and identify potential contractors,or

file with recommendations made andactions taken.

(b) Participate in goal-settingprocedures and planning activities and

taged businesses as subcontractors.

(d) Ensure that purchases exceeding$2,500 and not exceeding the simplified

implemented unless the contractingofficer is unable to obtain offers fromtwo or more small business concerns thatare competitive with market prices and interms of quality and delivery of the


419-2

(e) Maintain comprehensive source date.listings of small businesses.

(f) Upon written request, provide firms and especially those found to besmall, minority and women-owned nonresponsive or nonresponsible to helpbusinesses the bidders mailing lists of qualify them for future awards.individuals receiving solicitations which will contain the subcontracting clause (k) Review proposed large contractentitled "Utilization of Small Business requirements to determine the potentialConcerns and Small Disadvantaged for breaking out components suitable forBusiness Concerns." These lists may be purchase from small business firms.limited to those supplies or services ofmajor interest to the requesting firms. (l) Ensure that the SBA Resident

(g) Develop a program of contacts (PCR) is provided an opportunity andwith local, small, minority, and women- reasonable time to review any solicita-owned trade, business, and professional tion that meets the dollar threshold forassociations and organizations and Indian small business and small disadvantagedtribal councils to apprise them of USDA's business subcontracting plans.program needs and recurring contractrequirements.

(h) Periodically meet with program (a) The Director, OSDBU, shall bemanagers to discuss requirements of the responsible for submitting reportssmall business preference program, concerning USDA's progress andexplore the feasibility of breaking large achievements in the procurementcomplex requirements into smaller lots preference program.suitable for participation by small firms,and encourage program managers to meetwith these firms so that their capabilitiescan be demonstrated.

(i) Establish internal operatingprocedures which implement therequirements of the regulations as setforth in this Part 419. Compile data andprepare all reports pertaining to the small, minority and women-ownedbusiness activities. Ensure that these reports are accurate, complete and up-to-

(j) Assist and counsel small business

Procurement Center Representative

419.201-73 Reports.

(b) The following dates must beadhered to in regard to the reporting ofsubcontract award data:

SF-294 ReportsFrequency: Twice a YearCut-off date (Reporting period ending): March 31Date due at ContractingActivity: April 30

AAC 96-01 MAY 15, 1998AGRICULTURE ACQUISITION REGULATION 419.602-3

419-3

Cut-off date (Reporting period ending): September 30Date due at ContractingActivity: October 30

SF-295 ReportsFrequency: Once A YearCut-off date (12 month period ending): September 30Date due at OSDBU: October 30

SUBPART 419.5--SET-ASIDES FORSMALL BUSINESS

419.508 Solicitation provisions.

The contracting officer shall insertthe provision at 452.219-70, SizeStandard and SIC Code Information, in solicitations that are set aside for smallbusinesses.

SUBPART 419.6--CERTIFICATESOF COMPETENCY ANDDETERMINATIONS OF

ELIGIBILITY

419.602 Procedures.

419.602-1 Referral.

Contracting officers shall referdeterminations of non-responsibilityregarding small businesses directly to theSBA Regional Office servicing thelocation where the contractor's office(home) is located.

419.602-3 Resolving differencesbetween the agency and the SmallBusiness Administration.

The HCA is authorized to appeal theissuance of a COC to SBA Headquartersas provided by FAR 19.602-3(a).

AAC 96-01 MAY 15, 1998

PART 422--APPLICATION OF LABOR LAWS TO GOVERNMENTACQUISITIONS

TABLE OF CONTENTS

SUBPART 422.1--BASIC LABOR POLICIESSec.422.103 Overtime.422.103-4 Approvals.

SUBPART 422.3--CONTRACT WORK HOURS AND SAFETY STANDARDSACT422.302 Liquidated damages and overtime pay.

SUBPART 422.4--LABOR STANDARDS FOR CONTRACTS INVOLVINGCONSTRUCTION422.404 Davis-Bacon wage determinations.422.404-6 Modifications of wage determinations.422.406 Administration and enforcement.422.406-8 Investigations.

SUBPART 422.6--WALSH-HEALEY PUBLIC CONTRACTS ACT422.604 Exemptions.422.604-2 Regulatory exemptions.422.608 [Reserved]

SUBPART 422.8--EQUAL EMPLOYMENT OPPORTUNITY422.803 Responsibilities.422.804 Affirmative action programs.422.804-2 Construction.422.807 Exemptions.

SUBPART 422.13--SPECIAL DISABLED AND VIETNAM ERA VETERANS422.1303 Waivers.422.1306 Complaint procedures.

SUBPART 422.14--EMPLOYMENT OF THE HANDICAPPED422.1403 Waivers.422.1406 Complaint procedures.


422-1

PART 422 SUBPART 422.4--LABOR

APPLICATION OF LABOR LAWS INVOLVING CONSTRUCTIONTO GOVERNMENT

ACQUISITIONS 422.404 Davis-Bacon Act wage

SUBPART 422.1--BASIC LABORPOLICIES 422.404-6 Modifications of wage

422.103 Overtime.

422.103-4 Approvals.

Requests for the use of overtime 22.404-6(b)(6).shall be approved by an acquisitionofficial at a level above the contractingofficer in accordance with the proceduresin FAR 22.103-4(a) and (b).

SUBPART 422.3--CONTRACTWORK HOURS AND SAFETY

STANDARDS ACT

422.302 Liquidated damages andovertime pay.

Heads of contracting activities(HCA's) are authorized to reviewdeterminations of liquidated damages dueunder section 104(c) of the ContractWork Hours and Safety Standards Act,and to take remedial action, ifappropriate, in accordance with FAR The Assistant Secretary for22.302(c). Contractors or Administration can request the Secretarysubcontractors may request review of of Labor to exempt contracts from theadministrative determinations of Walsh-Healey Public Contracts Actliquidated damages by written notice to pursuant to FAR 22.604-2(c). A writtenthe contracting officer. The contracting finding justifying the request forofficer shall promptly forward appeals of exemption shall be prepared for theliquidated damages determinations to the Assistant Secretary's signature andHCA. submitted by the HCA to the Senior

STANDARDS FOR CONTRACTS

determinations.

determinations.

HCA's are authorized to requestextension of the 90 day period for awardafter bid opening as provided in FAR

422.406 Administration andenforcement.

422.406-8 Investigations.

Reports of violations shall beforwarded to the HCA, who shallprocess such reports in accordance withFAR 22.406-8(d).

SUBPART 422.6--WALSH-HEALEYPUBLIC CONTRACTS ACT

422.604 Exemptions.

422.604-2 Regulatory exemptions.


422-2

Procurement Executive (SPE) for (b) The contracting officer shallreferral to the Assistant Secretary. submit requests for exemptions under

422.608 [Reserved]

SUBPART 422.8--EQUALEMPLOYMENT OPPORTUNITY

422.803 Responsibilities.

The contracting office shall submitquestions involving the applicability ofExecutive Order 11246 and FAR subpart22.8 through the HCA to the SPE forresolution.

422.804 Affirmative action programs.

422.804-2 Construction.

The HCA shall ensure that eachcontracting office, awarding nonexemptconstruction contracts, maintains acurrent listing of covered geographicalareas subject to affirmative actionrequirements specifying goals forminorities and women in coveredconstruction trades.

422.807 Exemptions.

(a) The Assistant Secretary forAdministration is authorized to make thedetermination in FAR 22.807(a)(1) that acontract is essential to the nationalsecurity.

FAR 22.807(a)(1), (a)(2), and (b)(5)through the HCA to the SPE fordetermination by the Assistant Secretaryfor Administration or referral to theDirector, Office of Federal ContractCompliance Programs (OFCCP), asappropriate.

SUBPART 422.13--SPECIALDISABLED AND VIETNAM ERA

VETERANS

422.1303 Waivers.

(a) The Assistant Secretary forAdministration is authorized to make thewaiver determinations under FAR22.1303(a) and (b) with concurrence ofthe Director, OFCCP.

(b) The contracting office shallsubmit requests for waivers through theHCA to the SPE for determination by theAssistant Secretary for Administration.

422.1306 Complaint procedures.

The contracting officer shall forwardcomplaints received about theadministration of the Vietnam EraVeterans Readjustment Assistance Actdirectly to the Department of Labor(DoL) as prescribed in FAR 22.1306.

AAC 96-01 MAY 15, 1998

PART 424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

TABLE OF CONTENTS

SUBPART 424.1--PROTECTION OF INDIVIDUAL PRIVACYSec.424.103 Procedures.424.104 Contract clauses.

SUBPART 424.2--FREEDOM OF INFORMATION ACT424.203 Policy.


AAC 96-01 MAY 15, 1998

424-1

PART 424

PROTECTION OF PRIVACY ANDFREEDOM OF INFORMATION

SUBPART 424.1--PROTECTION OFINDIVIDUAL PRIVACY

424.103 Procedures.

USDA regulations implementing thePrivacy Act are found in 7 CFR, SubtitleA, Part 1, Subpart G. Contractingofficers shall follow these regulationswhen responding to requests forinformation or awarding contracts thatwill involve the design, development, oroperation of a system of records onindividuals to accomplish agencyfunctions.


When applicable, the contractingofficer shall insert the clause at452.224-70, Confidentiality ofInformation, in contracts involvingconfidential information.

SUBPART 424.2--FREEDOM OFINFORMATION ACT

424.203 Policy.

USDA regulations implementing theFreedom of Information Act are found in7 CFR, Subtitle A, Part 1, Subpart A.Contracting officers shall follow theseregulations when responding to requestsfor information or awarding contractsthat will involve the design,

development, or operation of a system ofrecords on individuals to accomplishagency functions.

AAC 96-01 MAY 15, 1998

PART 425--FOREIGN ACQUISITION

TABLE OF CONTENTS

SUBPART 425.1--BUY AMERICAN ACT--SUPPLIESSec.425.102 Policy.425.105 Evaluating offers.425.108 Excepted articles, materials and supplies.

SUBPART 425.2--BUY AMERICAN ACT--CONSTRUCTION MATERIALS425.202 Policy.425.203 [Reserved]425.204 [Reserved]

SUBPART 425.3--BALANCE OF PAYMENTS PROGRAM425.302 Policy.425.304 Excess and near-excess foreign currencies.

SUBPART 425.4--TRADE AGREEMENTS425.402 Policy.

SUBPART 425.9--ADDITIONAL FOREIGN ACQUISITION CLAUSES425.901 Omission of Audit Clause.

SUBPART 425.10--IMPLEMENTATION OF SANCTIONS AGAINSTCOUNTRIES THAT DISCRIMINATE AGAINST UNITED STATES PRODUCTSOR SERVICES IN GOVERNMENT PROCUREMENT425.1002 Trade sanctions.


AAC 96-01 MAY 15, 1998

425-1

PART 425 425.202 Policy.

FOREIGN ACQUISITION

SUBPART 425.1--BUY AMERICANACT--SUPPLIES

425.102 Policy.

The Senior Procurement Executive(SPE) shall make the determinationprescribed in FAR 25.102(a)(3).

425.105 Evaluating offers.

The SPE shall make thedeterminations prescribed in FAR25.105. Requests for SPE approval shallbe submitted by the HCA, in writing, andshall provide a detailed justificationsupporting why the proposed award is inthe best interest of the Government.

425.108 Excepted articles, materials,and supplies.

(a) Copies of determinations ofnonavailability in accordance with FAR25.102(a)(4) or 25.202(a)(3), forarticles, material or supplies not listed inFAR 25.108, shall be submitted to theSPE for submission to the FAR Council.

(b) Information required by FAR25.108(c) shall be submitted to the SPEfor submission to the FAR Council.

SUBPART 425.2--BUY AMERICANACT--CONSTRUCTION

MATERIALS

(a) The SPE shall make thedetermination prescribed in FAR25.202(a)(3).

(b) If a contracting officer proposesthat the use of a particular domesticconstruction material should be waivedfor a contract on the grounds that its usewould be impracticable, the contractingofficer shall submit a proposeddetermination with supportinginformation through the HCA to the SPEfor approval or disapproval.

425.203 [Reserved]

425.204 [Reserved]

SUBPART 425.3--BALANCE OFPAYMENTS PROGRAM

425.302 Policy.

The HCA shall make thedeterminations prescribed in FAR25.302(b)(2) and (3) and may authorizedifferentials greater than 50 percent asprescribed in FAR 25.302(c).

425.304 Excess and near-excessforeign currencies.

HCA's shall make the determinationsas to the feasibility of using excess ornear-excess currency.

SUBPART 425.4--TRADEAGREEMENTS


425-2

425.402 Policy.

Whenever the U.S. TradeRepresentative publishes aredetermination of the dollar threshold atwhich the Trade Agreements Act applies,that dollar threshold will be published ina Departmental Notice, 5025 series.

SUBPART 425.9--ADDITIONALFOREIGN ACQUISITION

CLAUSES

425.901 Omission of Audit Clause.

The SPE shall make thedetermination under FAR 25.901(c)(1).

SUBPART 425.10--IMPLEMENTATION OFSANCTIONS AGAINST

COUNTRIES THATDISCRIMINATE AGAINST UNITED

STATES PRODUCTS ORSERVICES IN GOVERNMENT

PROCUREMENT

425.1002 Trade Sanctions.

The Secretary, without power ofredelegation, has the authority to makethe necessary determination(s) andauthorize award(s) of contract(s) inaccordance with FAR 25.1002(c).

AAC 96-01 MAY 15, 1998

PART 426--OTHER SOCIOECONOMIC PROGRAMS

TABLE OF CONTENTS

SUBPART 426.70--PREFERENCE FOR SELECTED BIOBASED PRODUCTSSec.426.7000 Scope of subpart.426.7001 Applicability.426.7002 Authority.426.7003 Policy.426.7004 Definitions.426.7005 Preference list.426.7006 Use of a set-aside or a price preference.426.7007 Use of a technical evaluation preference.426.7008 Identification of preferred products.426.7009 Contract provisions.

Authority: 5 U.S.C. 301; 7 U.S.C. 5909; 40 U.S.C. 486(c).

AAC 96-01 MAY 15, 1998

426-1

PART 426

OTHER SOCIOECONOMICPROGRAMS

SUBPART 426.70--PREFERENCEFOR SELECTED BIOBASEDPRODUCTS


This subpart supplements the FAR to (b) USDA shall satisfy itsimplement the set-asides and preferences requirements for products the same ordescribed in section 1665 of the Food, essentially the same as AARCC productsAgriculture, Conservation and Trade Act by applying the preferences or set-asidesof 1990 (7 U.S.C. 5909). described by this subpart.

426.7001 Applicability. 426.7004 Definitions.

This subpart applies to USDA and all As used in this subpart---of its components, includingcorporations. "AARCC products" are products

426.7002 Authority.

Section 1665 of the Food, Agriculture,Conservation and Trade Act of 1990 (7U.S.C. 5909) authorizes USDA toestablish set-asides and other preferencesfor products that have been assisted bythe Alternative Agricultural Research andCommercialization Corporation(AARCC).

426.7003 Policy.

(a) AARCC provides financialassistance to private companies and otherparties to commercialize nonfood,nonfeed products made from agriculturaland forestry materials and animal by-

products (biobased products). Biobasedproducts by their nature areenvironmentally friendly, and, in manyinstances, use agricultural material thatotherwise would be waste. It is thepolicy of USDA to acquire AARCCproducts to the maximum extentpracticable. This policy applies to allacquisitions of products regardless ofdollar value.

developed with assistance provided byAARCC as authorized by 7 U.S.C. 5905.

“Acquisitions of products” means anacquisition of one or more products forthe use of the Government.

“Acquisitions involving the use ofproducts” means an acquisition in whicha Government contractor uses productsin contract performance.

“Price preference” means an amount,expressed as a percentage, to be used inthe evaluation of offers in an acquisitionof products.

“Set-aside” means a requirement thatvendors responding to a solicitation offer


426-2

AARCC products. essentially the same as those productsappearing on the Preference List shall

“Solicitation” includes actions taken either be set-aside exclusively or shallunder Parts 12, 13, 14, 15, and 36 of the include a price preference for thoseFederal Acquisition Regulation. products shown on the Preference List.

“Technical evaluation preference” shall be determined by the requiringmeans the use of an award factor or office but may not exceed the percentagesubfactor in which the Government shown on the Preference List.expresses its preference for AARCCproducts.

426.7005 Preference list.

(a) The Office of Procurement andPolicy Management (OPPM) andAARCC jointly shall establish andmaintain a Preference List for AARCCproducts.

(b) The Preference List shall containthe list of preferred products, sourceinformation for these products, thetype(s) of preference to be applied, thebeginning and ending dates for the use ofpreferences, and other terms establishedto define the preference given to aproduct.

(c) The Preference List will bepublicized within USDA by means ofAGAR Advisories (see 401.371). Copiesof the Preference List may be obtainedfrom OPPM. The Preference List willalso be posted on the World Wide Webat the USDA Procurement Home Page.

426.7006 Use of a set-aside or a pricepreference.

Acquisitions for products the same or

The actual price preference to be used

426.7007 Use of a technicalevaluation preference.

Acquisitions involving the use ofproducts the same or essentially thesame as those products appearing on thePreference List shall include a technicalevaluation preference, if authorized inthe Preference List. The technicalevaluation preference may be determinedby the contracting officer specifically foreach acquisition.

426.7008 Identification of preferredproducts.

(a) Products subject to a set-aside ortechnical preference shall be separatelylisted in the schedule, specification, orperformance work statement.

(b) Products subject to a pricepreference shall be separately listed inthe schedule.

426.7009 Contract provisions.

(a) Each solicitation containing a priceor technical preference under this


426-3

subpart shall contain the provision452.226-70, Preferred Products.

(b) Each solicitation for productssubject to a set-aside shall include theprovision 452.226-71, Set-Aside ForMandatory Products.

(c) Each solicitation for productssubject to a price preference shall includethe provision 452.226-72, PricePreference for Award.

(d) Solicitations for products maycontain both the provision in 452.226-71and the provision found in 452.226-72.

(e) The provisions prescribed above arenot required for acquisitionsaccomplished using the purchase card asa stand alone tool.


432-3

for construction, alteration or repair, and a construction contract has beenshipbuilding and conversion. Such approved, the amount to be paid, thepayments also are authorized for service amount of any retainage withheld, and thecontracts, if the contracting officer reason(s) for the retainage shall bedetermines that progress payments based provided to the contractor by theon costs are not practicable and adequate contracting officer in writing before thesafeguards are provided to administer payment due date. progress payments based on a percentageor stage of completion. For all other (d) When the contractor, under acontracts, progress payment provisions fixed-price construction contract,shall be based on costs except that the furnishes evidence to the contractingHCA may authorize progress payments officer that the surety has been paid in fullbased on a percentage or stage of for bond premiums and requestscompletion on a case-by-case basis. reimbursement, the first subsequentEach authorization by the HCA shall progress payment shall include the totalinclude a determination and finding that amount attributable to such bondprogress payments based on costs cannot premiums and the Government shall paybe employed practically and that there that amount in full. This amount paidare adequate safeguards provided for the for the bond premiums is not an amount inadministration of progress payments addition to the stated contract price.based on a percentage or stage ofcompletion.

432.103 Progress payments underconstruction contracts.

(a) When approving a progresspayment under a construction contract,the contracting officer shall indicate theamount to be paid by the payment officeand include in the contract file therationale in support of the payment.

(b) When a retainage is made on aprogress payment under a constructioncontract, the contracting officer shallplace in the contract file a writtendetermination stating the reason(s) forthe retainage.

(c) When a progress payment under

432.111 Contract clauses for non-commercial purchases.

The contracting officer shall insertthe clause at 452.232-70, Reimbursementfor Bond Premiums - Fixed PriceConstruction Contracts, whenever theclause at FAR 52.232-5, Payments underFixed-Price Construction Contracts, isused in a contract.

432.113 Customary contract financing.

The contracting officer maydetermine the necessity for customarycontract financing. The determination and finding that customary contractfinancing is needed shall be placed in thecontract file.


432-4

432.114 Unusual contract financing.

The HCA is authorized to approve financing requests may not be transferredunusual contract financing. The signed from the contracting officer.determination and finding supporting thisapproval shall be included in the contractfile.

SUBPART 432.2--COMMERCIALITEM PURCHASE FINANCING 432.301 Definitions.

432.202 General.

432.202-1 Policy.

In the case of unusual contractfinancing, the approval by the HCA shallbe recorded in a determination and findingand maintained in the contract file.

432.202-4 Security for Government 432.402 General.financing.

Prior to determining that an offeror's individual responsible for making thefinancial condition is adequate security, findings and determination, and forthe contracting officer must obtain the approval of the contract terms concerningconcurrence of the funding activity in the advance payments.proposed determination.

432.206 Solicitation provisions andcontract clauses.

The responsibility for administration with the Department of Treasuryof the liquidation provisions of a contract concerning letters of credit.may not be transferred from thecontracting officer.

432.207 Administration and paymentof commercial financing payments.

The responsibility for receiving,reviewing, and approval of contract

SUBPART 432.3--LOANGUARANTEES FOR DEFENSE

PRODUCTION

Within this subpart, the "agency" or"guaranteeing agency" is the "head of thecontracting activity" (HCA) and may notbe redelegated.

SUBPART 432.4--ADVANCEPAYMENTS FOR NON-COMMERCIAL ITEMS

The HCA is designated as the

432.406 Letters of credit.

The HCA is designated as theindividual responsible for coordination

432.407 Interest.

(a) The HCA is designated as theindividual who may authorize, on a caseby case basis, advance payments withoutinterest for the contract types described

AAC 96-01 MAY 15, 1998

434-1

PART 434

MAJOR SYSTEM ACQUISITION

SUBPART 434.0--GENERAL


Pursuant to OMB Circular No. USDA and that the managementA-109 (A-109) and the definition at FAR objectives of the Circular are realized. 2.101, within USDA, a system shall be considered a major system if:

(a) The total acquisition costswith private industry are estimated to be$50 million or more, or

(b) The system has beenspecifically designated to be a majorsystem by the USDA AcquisitionExecutive, even if the acquisition costsare not expected to exceed $50 million.

434.002 Policy.

In addition to the policy guidance atFAR 34.002, the policies outlined inparagraph 6 of A-109 should serve asguidelines for all contracting activities inplanning and developing systems, majoror otherwise.

434.003 Responsibilities.

(a) The Secretary of Agriculture orother designated USDA key executive isresponsible for making four keydecisions in each major system acqui-sition process. These are listed inparagraph 9 of A-109 and elaborated onin paragraphs 10 through 13. The keyexecutives of USDA (Secretary, DeputySecretary, Under Secretaries and

Assistant Secretaries) individually or as agroup will participate in this decisionmaking process.

(b) The Assistant Secretary forAdministration (ASA) is the USDAAcquisition Executive. The ASA willensure that A-109 is implemented in

The ASA is responsible for designatingthe program manager for each majorsystem acquisition, designating anacquisition to be a major systemacquisition, and approving the writtencharter and project control system foreach major system acquisition.

(c) The Procurement and PropertyManagement staff is responsible forassisting the ASA in carrying out theabove responsibilities.

(d) Heads of contracting activitiesmust:

(1) Ensure compliance with therequirements of A-109, FAR Part 34 andAGAR 434.

(2) Ensure that potential majorsystem acquisitions are brought to theattention of the USDA AcquisitionExecutive.

(3) Recommend qualifiedcandidates for designation as programmanagers for each major systemacquisition within their jurisdiction.

(4) Ensure that programmanagers fulfill their responsibilities anddischarge their duties.


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(5) Cooperate with the ASA in the specific program is the agency headimplementing the requirements of for the purposes of FAR 34.005-6.A-109.

(e) The program manager isresponsible for planning and executingthe major system acquisition, ensuringappropriate coordination with the USDAAcquisition Executive and other keyUSDA executives.

434.004 Acquisition strategy.

(a) The program manager willdevelop, in coordination with theAcquisition Executive, a written charteroutlining the authority, responsibility,accountability, and budget foraccomplishing the proposed objective.

(b) The program manager willdevelop, subject to the approval of theAcquisition Executive, a project controlsystem to schedule, monitor, andregularly report on all aspects of theproject. The control system shallestablish reporting periods andmilestones consistent with the keydecisions listed in paragraph 9 of A-109.

(c) Upon initiation of the project,the program manager will reportregularly to the Acquisition Executive.

434.005 General Requirements.

434.005-6 Full Production.

The Secretary or the USDA keyexecutive designated by the Secretary for

AAC 96-01 MAY 15, 1998

PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

TABLE OF CONTENTS

SUBPART 436.2--SPECIAL ASPECTS OF CONTRACTING FORCONSTRUCTIONSec.436.201 Evaluation of contractor performance.436.203 Government estimate of construction costs.436.204 Disclosure of the magnitude of construction projects.436.205 Statutory cost limitations. 436.209 Construction contracts with architect-engineer firms.436.213 Special procedures for sealed bidding in construction contracting.436.213-2 Presolicitation notices.

SUBPART 436.3-[Reserved]

SUBPART 436.5--CONTRACT CLAUSES436.500 Scope of subpart.436.571 Prohibition against the use of lead-based paint.436.572 Use of premises.436.573 Archeological or historic sites.436.574 Control of erosion, sedimentation, and pollution.436.575 Maximum workweek-construction schedule.436.576 Samples and certificates.436.577 Emergency response.436.578 Standard specifications for construction of roads and bridges.436.579 Opted timber sale road requirements.

SUBPART 436.6--ARCHITECT-ENGINEER SERVICES436.601 Policy436.601-3 Applicable contracting procedures.436.602 Selection of firms for architect-engineer contracts.436.602-1 Selection criteria.436.602-2 Evaluation boards.436.602-3 Evaluation board functions.436.602-4 Selection authority.436.602-5 Short selection process for contracts not to exceed the simplified acquisition

threshold. 436.603 Collecting data on and appraising firms' qualifications.436.604 Performance evaluation.436.605 Government cost estimate for architect-engineer work.436.609 Contract clauses.

2

436.609-1 Design within funding limitations.436.670 Firms ineligible for award -- construction.


436-1

PART 436

CONSTRUCTION ANDARCHITECT-ENGINEER 436.204 Disclosure of the magnitude

CONTRACTS of construction projects.

SUBPART 436.2--SPECIALASPECTS OF CONTRACTING FOR

CONSTRUCTION

436.201 Evaluation of contractorperformance.

Preparation of performance services and the total, inclusive ofevaluation reports. In addition to the options, to best describe the magnituderequirements of FAR 36.201, of the solicitation.performance evaluation reports shall beprepared for indefinite-delivery typecontracts when either the contractmaximum or the contracting activity's (a) When it appears that fundsreasonable estimate of services to be available for a project may beordered exceeds $500,000.00. For these insufficient for all the desired features ofcontracts, performance evaluation construction, the contracting officer mayreports shall be prepared for each order provide in the solicitation for a base bidat the time of final acceptance of the item covering the work generally aswork under the order. specified and for one or more additive or

436.203 Government estimate ofconstruction costs.

For acquisitions using sealed bid the provision at 452.236-70, Additive orprocedures, the contracting officer may Deductive Items, in solicitations fordisclose the overall amount of the construction.Government's estimate of constructioncosts following identification of the (b) In the alternative to the processresponsive bid most advantageous to the in paragraph (a) of this section, theGovernment; verification of that bid's contracting officer may use the policiesprice reasonableness; and verification of and procedures found in FAR 17.2.the bidder's responsibility. Foracquisitions using other than sealed bidprocedures (e.g., negotiation), thecontracting officer may disclose the

overall amount of the estimate aftercontract award.

In the case of indefinite-deliverytype contracts, the reasonable estimate ofwork to be done or the maximum in thesolicitation, both including all options, isto be used to select the price range.Contracting officers may elect to useboth a price range for the base period of

436.205 Statutory cost limitations.

deductive bid items which progressivelyadd or omit specified features of thework in a stated order of priority. In thiscase, the contracting officer shall insert

436.209 Construction contracts witharchitect-engineer firms.


436-2

The head of the contracting activity Against the Use of Lead-Based Paint, in(HCA) is authorized to approve the solicitations and contracts, if the workaward of a contract to construct a involves construction or rehabilitationproject, in whole or in part, to the firm (including dismantling, demolition, or(inclusive of its subsidiaries or affiliates) removal) of residential structures. Thisthat designed the project. clause may be used in contracts for other

436.213 Special procedures for sealedbidding in construction contracting.

436.213-2 Presolicitation notices.

The authority to waive a presoli-citation notice is restricted to the HCA.

SUBPART 436.3 [RESERVED]

SUBPART 436.5--CONTRACTCLAUSES


This subpart prescribes clauses forinsertion in USDA solicitations andcontracts for construction and fordismantling, demolition, or removal ofimprovements or structures. Thecontracting officer shall use the clausesas prescribed, in contracts that exceedthe simplified acquisition threshold. Thecontracting officer may use the clauses ifthe contract amount is expected to bewithin the simplified acquisitionthreshold.

436.571 Prohibition against the use oflead-based paint.

The contracting officer shall insertthe clause at 452.236-71, Prohibition

than residential structures.

436.572 Use of premises.

The contracting officer shall insertthe clause at 452.236-72, Use ofPremises, if the contractor will bepermitted to use land or premisesadministered by USDA.

436.573 Archeological or historicsites.

The contracting officer shall insertthe clause at 452.236-73, Archeologicalor Historic Sites, if the contractor will beworking in an area where such sites maybe found. Use of the clause is optional in service contracts for on-the-groundwork, e.g. reforestation, silvicultural, land stabilization, or other agricultural-related projects.

436.574 Control of erosion,sedimentation, and pollution.

The contracting officer shall insertthe clause at 452.236-74, Control ofErosion, Sedimentation and Pollution, ifthere is a need for applying environ-mental controls in the performance ofwork. Use of the clause is optional inservice contracts for on-the-ground e.g.,reforestation, silvicultural, landstabilization, or other agricultural-relatedprojects.


436-3

436.575 Maximum workweek-construction schedule.

The contracting officer shall insertthe clause at 452.236-75, MaximumWorkweek-Construction Schedule, if theclause at FAR 52.236-15 is used and thecontractor's work schedule is restrictedby access to the facility or must becoordinated with the schedule of contractadministration personnel.

436.576 Samples and certificates.

The contracting officer shall insertthe clause at 452.236-76, Samples andCertificates, in all contracts.

436.577 Emergency response.

The contracting officer may insertthe clause at 452.236-77, EmergencyResponse, in construction contractsawarded for the Forest Service.

436.578 Standard specifications forconstruction of roads and bridges.

The contracting officer shall insertthe clause at 452.236-78, Forest ServiceStandard Specifications for Constructionof Roads and Bridges, in constructioncontracts that incorporate the standardspecifications.

436.579 Opted timber sale roadrequirements.

The contracting officer shall insertthe clause at 452.236-79, Opted TimberSale Road Requirements, in road

construction contracts resulting from atimber sale turnback.

SUBPART 436.6--ARCHITECT-ENGINEER SERVICES

436.601 Policy.

436.601-3 Applicable contractingprocedures.

The technical official’s listing ofareas where recovered materials cannotbe used shall be referred to the contract-ing activity’s official designated inaccordance with FAR 23.404. A copy ofthe listing and of any approval ordisapproval by that official is to beretained in the solicitation file.

436.602 Selection of firms forarchitect-engineer contracts.

436.602-1 Selection criteria.

The HCA is authorized to approvethe use of design competition under theconditions in FAR 36.602-1(b).

436.602-2 Evaluation boards.

HCA’s shall establish writtenprocedures for providing permanent orad hoc architect-engineer evaluationboards as prescribed in FAR 36.602-2. The procedures may provide for theappointment of private practitioners ofarchitecture, engineering, or relatedprofessions when such action isdetermined by the HCA to be essentialto meet the Government’s minimumneeds.

436.602-3 AGRICULTURE ACQUISITION REGULATION (AGAR)

436-4

436.602-3 Evaluation board functions.

The selection report required in FAR numbers of offices or boards assigned to36.602-3(d) shall be prepared for the maintain architect-engineer qualificationapproval of the HCA. The HCA may data files. The list shall be updatedauthorize an acquisition official above the annually.level of the contracting officer to executethe required approval.

436.602-4 Selection authority.

(a) The HCA shall serve as the requirements of FAR 36.604, perfor-selection authority in accordance with mance evaluation reports shall beFAR 36.602-4. The HCA may authorize prepared for indefinite-delivery typean acquisition official above the level of contracts when either the contractthe contracting officer to serve as the maximum or the contracting activitiesselection authority. reasonable estimate of services to be

(b) A copy of the final selection, contracts, performance evaluationinclusive of the supporting documents, reports shall be prepared for each ordershall be provided to the contracting at the time of final acceptance of theofficer and maintained in the solicitation work under the order. (b) Thefile. contracting officer may require a

436.602-5 Short selection process forcontracts not to exceed the simplifiedacquisition threshold.

The HCA may include either or bothprocedures in FAR 36.602-5 in theprocedures for evaluation boards.

436.603 Collecting data on andappraising firms' qualifications.

(a) HCA's which require architect-engineer services shall establishprocedures to comply with therequirements of FAR 36.603.

(b) The procedures shall include alist of names, addresses, and phone

436.604 Performance evaluation.

Preparation of performanceevaluation reports. (a) In addition to the

ordered exceeds $25,000.00. For these

performance evaluation report on thework done by the architect-engineer afterthe completion of or during theconstruction of the designed project.

436.605 Government cost estimate forarchitect-engineer work.

The contracting officer may releasethe Government's total cost estimate inaccordance with FAR 36.605(b).


436.609-1 Design within fundinglimitations.

AAC 96-01 MAY 15, 1998

SUBCHAPTER H--CLAUSES AND FORMS

PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

TABLE OF CONTENTS

SUBPART 452.2--Texts of Provisions and Clauses Sec.452.204-70 Inquiries.452.211-70 Brand Name or Equal.452.211-71 Equal Products Offered.452.211-72 Statement of Work/Specifications.452.211-73 Attachments to Statement of Work/Specifications.452.211-74 Period of Performance.452.211-75 Effective Period of the Contract.452.214-70 Award by Lot.452.215-71 Instructions for the Preparation of Technical and Business Proposals.452.215-72 Amendments to Proposals.452.215-73 Post-Award Conference.452.216-70 Award Fee.452.216-71 Base Fee and Award Fee Proposal.452.216-72 Evaluation Quantities--Indefinite-Delivery Contract.452.216-73 Minimum and Maximum Contract Amounts.452.216-74 Ceiling Price.452.216-75 Letter Contract.452.219-70 Size Standard and SIC Code Information.452.224-70 Confidentiality of Information.452.226-70 Preferred Products.452.226-71 Set-aside for Mandatory Products.452.226-72 Price Preference for Award.452.228-70 Alternative Forms of Security.452.228-71 Insurance Coverage.452.232-70 Reimbursement for Bond Premiums--Fixed-Price Construction452.236-70 Additive or Deductive Items.452.236-71 Prohibition Against the use of Lead-Based Paint.452.236-72 Use of Premises.452.236-73 Archaeological or Historic Sites.452.236-74 Control of Erosion, Sedimentation, and Pollution.452.236-75 Maximum Workweek--Construction Schedule.452.236-76 Samples and Certificates.452.236-77 Emergency Response.452.236-78 Forest Service Standard Specifications for Construction of Roads and

AAC 96-01 MAY 15, 1998

2

Bridges.452.236-79 Opted Timber Sale Road Requirements.452.236-80 Firms Ineligible for Award -- Construction.452.237-70 Loss, Damage, Destruction or Repair.452.237-71 Pre-Bid/Pre-Proposal Conference.452.237-73 Equipment Inspection Visit.452.237-74 Key Personnel.452.237-75 Restrictions Against Disclosure.452.237-76 Progress Reporting.452.237-78 Contracts with Consulting Firms for Services.452.246-70 Inspection and Acceptance.452.247-70 Delivery Location.452.247-71 Marking Deliverables.452.247-72 Packing for Domestic Shipment.452.247-73 Packing for Overseas Shipment.


AAC 96-01 MAY 15, 1998

452-1

PART 452

SOLICITATION PROVISIONS ANDCONTRACT CLAUSES

SUBPART 452.2--TEXTS OFPROVISIONS AND CLAUSES

452.204-70 Inquiries.

As prescribed in 404.7001, insert thefollowing provision: (b) Unless the offeror clearly

INQUIRIES (FEB 1988)

Inquiries and all correspondence product(s) referenced in the solicitation.concerning this solicitation should besubmitted in writing to the Contracting (c)(1) If the offeror proposes toOfficer. Offerors should contact only furnish an "equal" product or products,the Contracting Officer issuing the the brand name(s), if any, and any othersolicitation about any aspect of this required information about therequirement prior to contract award. product(s) to be furnished shall be

(End of provision)

452.211-70 Brand Name or Equal.

As prescribed in 411.171, insert thefollowing provision:

BRAND NAME OR EQUAL(NOV 1996)

(As used in this provision, the term"brand name" includes identification ofproducts by make and model.)

(a) If items called for by thissolicitation have been identified by a"brand name or equal" description, suchidentification is intended to bedescriptive, but not restrictive, and is toindicate the quality and characteristics of

products that will be satisfactory.Offers of "equal" products (includingproducts of the brand name manufacturerother than the one described by brandname) will be considered for award ifsuch products are clearly identified inthe offer (see clause 452.211-2) and aredetermined by the Contracting Officer tomeet fully the salient characteristicsrequirements listed in the solicitation.

indicates in its offer that it is offering an"equal" product, the offeror shall beconsidered as offering the brand name

inserted in the space provided in thesolicitation. The evaluation of offers andthe determination as to the equality ofthe product(s) offered shall be theresponsibility of the Government andwill be based on information furnishedby the offeror or identified in its offer aswell as other information reasonablyavailable to the contracting activity.Caution to offerors: The contractingactivity is not responsible for locating orsecuring any information which is notidentified in the offer and is notreasonably available to the contractingactivity. Accordingly, to assure thatsufficient information is available, theofferor must furnish as a part of its offerall descriptive material (such as cuts,illustrations, drawings, or other infor-mation) necessary for the contractingactivity to (i) determine whether the

AAC 96-01 MAY 15, 1998452-711.71 AGRICULTURE ACQUISITION REGULATION (AGAR)

452-2

product offered meets the salient charac- information for each offered "equal"teristics requirement of the solicitation, product:and (ii) establish exactly what the offerorproposes to furnish and what theGovernment would be binding itself topurchase by making an award. Theinformation furnished may include specificreference to information previouslyfurnished or to information otherwiseavailable to the contracting activity.

(2) If an offeror proposes tomodify a product so as to make itconform to the requirements of thesolicitation, the offer shall include (i) aclear description of such proposedmodifications and (ii) clearly markeddescriptive material to show the proposedmodifications.

(End of Provision)

452.211-71 Equal Products Offered.

As prescribed in 411.171, insert thefollowing or substantially the same clausein solicitations seeking offers on a "brandname or equal" basis to allow offerors theopportunity to clearly identify the "equal"item being offered, and to illustrate howthat item meets the salient characteristicsrequirements of the Government.

EQUAL PRODUCTS OFFERED(NOV 1996)

(a) Offerors proposing to furnish an"equal" product, in accordance with the"Brand Name or Equal" provision of thissolicitation, shall provide the following

Contract Line Item Number (if any): _____________________________ Brand Name or Equal Product identified by the Government in this solicitation:___________________ _____________________________ Offered Product Name:__________ _____________________________ Catalog Description or part number:______________________ _____________________________ Manufacturer's Name:___________ _____________________________ Manufacturer's Address:_________ _____________________________

(b) Offerors are responsible forsubmitting all additional information onthe above product necessary for theContracting Officer to determine whetherthe product offered meets the "brandname or equal" product's salientcharacteristics listed in the solicitation.

(End of Clause)

452.211-72 Statement ofWork/Specifications.

As prescribed in 411.171, insert thefollowing clause:

STATEMENT OF WORK/SPECIFICATIONS (FEB 1988)

The Contractor shall furnish


452-3

the necessary personnel, material,equipment, services and facilities (exceptas otherwise specified), to perform theStatement of Work/Specificationsreferenced in Section J.

(End of Clause)

452.211-73 Attachments to Statementsof Work/Specifications.


ATTACHMENTS TO STATEMENTOF WORK/SPECIFICATIONS

(FEB 1988)

The attachments to the Statement ofWork/Specifications listed in Section J arehereby made part of this solicitation andany resultant contract.

(End of Clause)

452.211-74 Period of Performance.

As prescribed in 411.404(a), insert thefollowing clause:

PERIOD OF PERFORMANCE (FEB 1988)

The period of performance of thiscontract is from __*__ through __*__.

(End of Clause)

*Contracting Officer shall insert theappropriate dates.

452.211-75 Effective Period of theContract.

As prescribed in 411.404(b), insert thefollowing clause:

EFFECTIVE PERIOD OF THECONTRACT (FEB 1988)

The effective period of this contract isfrom ___*___ through ___*___.

(End of Clause)

*Contracting Officer shall insert theappropriate dates.

452.214-70 Award by Lot.

As prescribed in 414.201-6, insert aprovision substantially as follows:

AWARD BY LOT (NOV 1996)

Subject to the Section L provisionFAR 52.214-10, "Contract Award--Sealed Bidding," award will generally bemade to a single bidder on each entire lot. However, the Government reserves theright to award by item within any lotwhen the contracting officer determinesthat it is advantageous to theGovernment.

(End of Provision)

452.215-71 Instructions for thePreparation of Technical and Business Proposals. As prescribed in 415.407(a), insert a


452-4

provision substantially as follows: deviations from any requirement of this

INSTRUCTIONS FOR THEPREPARATION OF

TECHNICAL AND BUSINESSPROPOSALS(NOV 1996)

(a) General Instructions. Proposals (4) Offerors shall submit theirsubmitted in response to this solicitation proposal(s) in the following format andshall be furnished in the following format the quantities specified: with the numbers of copies as specifiedbelow. (a) * copies of the

(1) The proposal must include a through K of the solicitation package)technical proposal and business proposal. (b) * copies of the technicalEach of the parts shall be separate and proposalcomplete so that evaluation of one may be (c) * copies of theaccomplished independently from business/cost proposalevaluation of the other. The technicalproposal must not contain reference to (b) Technical Proposal Instructions. cost; however, resource information (such The technical proposal will be used toas data concerning labor hours and make an evaluation and arrive at acategories, materials, subcontracts, etc.) determination as to whether the proposalmust be contained in the technical will meet the requirements of theproposal so that the contractor's Government. Therefore, the technicalunderstanding of the statement of work proposal must present sufficientmay be evaluated. information to reflect a thorough

(2) Offerors may, at their detailed, description of the techniques,discretion, submit alternate proposals or procedures and program for achieving theproposals which deviate from the objectives of the specifications/requirement; provided, that an offeror statement of work. Proposals whichalso submit a proposal for performance of merely paraphrase the requirements of thethe work as specified in the statement of Government's specifications/work. Any "alternate" proposal may be statement of work, or use such phrases asconsidered if overall performance would "will comply" or "standard techniques willbe improved or not compromised, and if it be employed" will be consideredis in the best interest of the Government. unacceptable and will not be consideredAlternate proposals, or further. As a minimum, the proposal must

RFP, must be clearly identified.

(3) The Government will evaluateproposals in accordance with theevaluation criteria set forth in Section Mof this RFP.

completed, signed offer (Sections A

understanding of the requirements and a

clearly provide the following:

AAC 96-01 MAY 15, 1998AGRICULTURE ACQUISITION REGULATION 452-226.70

452-9

contract is subject to the Privacy Act, the (h) The provisions of paragraph (e) ofContractor will follow the rules and this clause shall not apply when theprocedures of disclosure set forth in the information is subject to conflicting orPrivacy Act of 1974, 5 U.S.C. 552a, and overlapping provisions in other Federal,implementing regulations and policies, State or local laws.with respect to systems of recordsdetermined to be subject to the Privacy (End of Clause)Act.

(e) Confidential information, asdefined in (a)(1) and (2) above, shall notbe disclosed without the prior writtenconsent of the individual, institution ororganization.

(f) Written advance notice of at least45 days will be provided to theContracting Officer of the Contractor'sintent to release findings of studies orresearch, which have the possibility ofadverse effects on the public or theFederal agency, as described in (b) above. If the Contracting Officer does not poseany objections in writing within the 45 dayperiod, the contractor may proceed withdisclosure. Disagreements not resolved bythe Contractor and Contracting Officerwill be settled pursuant to the "Disputes"clause.

(g) Whenever the Contractor isuncertain with regard to the properhandling of material under the contract, orif the material in question is subject to thePrivacy Act or is confidential informationsubject to the provisions of this clause, theContractor shall obtain a writtendetermination from the ContractingOfficer prior to any release, disclosure,dissemination, or publication.

452.226-70 Preferred Products.

As prescribed in 426.7009(a), include thefollowing provision:

PREFERRED PRODUCTS (MAY 1998)

Specific products required by thissolicitation and resulting contract, aresubject to a price or a technical preference. A list of these products, the specificpreference, and the manufacturer orproducer is included below.

Contract Line Item (or other location inthis solicitation):_______________________________ *Product:________________________ *Manufacturer/Producer:____________ *______________________________________________________________ ______________________________________________________________Preference:______________________ *_______________________________

(End of provision)

* For each line item to which a


452-10

preference applies, Contracting officershall insert appropriate information.

452.226-71 Set-aside for MandatoryProducts.

As prescribed in 426.7009(b), includethe following provision:

SET-ASIDE FOR MANDATORYPRODUCTS (MAY 1998)

Specific products are set-aside as amount of the preference, and sourcemandatory products. These are separately information is included in provisionlisted in the schedule, specifications, or 452.226-70, Preferred Products. Forperformance work statement. Specific purposes of evaluation of offers only, theterms governing the set-aside, and source offered prices for these products will beinformation for the products are shown reduced by the price preference listed inbelow. the solicitation. Contract Line Item (or other location in (End of provision)this solicitation):____________________________ *____________________________Product: As prescribed in 428.204-2, insert the____________________________ * following provision:Manufacturer/Producer:____________________________ *____________________________________________________________________________________ If furnished as security, money

Set-Aside Terms: checks shall be drawn payable to: __*__.____________________________ *____________________________ (End of Provision)

(End of provision) *Contracting Officer shall insert the name

* For each line item to which a set-asideapplies, Contracting officer shall insertappropriate information.

452.226-72 Price Preference forAward.

As prescribed in 426.7009(c), includethe following provision:

PRICE PREFERENCE FOR AWARD(MAY 1998)

Certain products listed in the scheduleof this solicitation are subject to a pricepreference. A list of these products, the

452.228-70 Alternative Forms ofSecurity.

ALTERNATIVE FORMS OFSECURITY (NOV 1996)

orders, drafts, cashiers checks, or certified

of the USDA contracting activity.


452-10.1

452.228-71 Insurance Coverage.

As prescribed in 428.310, insert the insurance written on a comprehensive formfollowing clause: of policy. The policy shall provide for

INSURANCE COVERAGE(NOV 1996)

Pursuant to FAR clause 52.228-5, operated in the United States shall provideInsurance-Work on a Government coverage of at least $200,000 per personInstallation, the Contractor will be and $500,000 per occurrence for bodilyrequired to present evidence to show, as a injury and $20,000 per occurrence forminimum, the amounts of insurance property damage or loss.coverage indicated below:

(a) Workers Compensation and Liability. When aircraft are used inEmployer's Liability. The Contractor is connection with performing the contract,required to comply with applicable the Contractor shall have aircraft publicFederal and State workers' compensation and passenger liability insurance. and occupational disease statutes. If Coverage shall be at least $200,000 peroccupational diseases are not person and $500,000 per occurrence forcompensable under those statutes, they bodily injury, other than passenger injury.shall be covered under the employer's Coverage for passenger injury shall be atliability section of the insurance policy, least $200,000 multiplied by the number ofexcept when contract operations are so seats or passengers, whichever is greater.commingled with a Contractor'scommercial operations that it would not (End of Clause)be practical to require this coverage. Employer's liability coverage of at least Alternate I (NOV 1996). As prescribed in$100,000 shall be required, except in 428.310, substitute the followingStates with exclusive or monopolistic paragraph (b), when additionally thefunds that do not permit worker's contractor must have property damagecompensation to be written by private liability coverage:carriers.

(b) General Liability. The Contractor Contractor shall have bodily injury liabilityshall have bodily injury liability insurance coverage written on a comprehensive formcoverage written on a comprehensive of policy of at least $500,000 perform of policy of at least $500,000 per occurrence.occurrence. (2) The Contractor shall have

(c) Automobile Liability. TheContractor shall have automobile liability

bodily injury and property damage liabilitycovering the operation of all automobilesused in connection with performing thecontract. Policies covering automobiles

(d) Aircraft Public and Passenger

(b) General Liability. (1) The

property damage liability insurance shall be


452-10.2

required in the amount of ____*___ peroccurrence.

*Contracting Officer shall insert amountrequired.

452.232-70 Reimbursement for BondPremiums--Fixed-Price Construction Contracts.


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AGRICULTURE ACQUISITION CIRCULAR - USDAAGRICULTURE ACQUISITION CIRCULAR May 15, 1998 AAC 96-01...

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Transcript of AGRICULTURE ACQUISITION CIRCULAR - USDAAGRICULTURE ACQUISITION CIRCULAR May 15, 1998 AAC 96-01...