Office of the Secretary, Labor.
Notice of proposed rulemaking.
This document sets forth a revised Department of Labor Acquisition Regulation (DOLAR). The Department of Labor Acquisition Regulation implements and supplements the Federal Acquisition Regulation (FAR). The DOLAR was last revised in 1986, and is significantly out-of-date. The regulation has been substantially revised to: Update references to obsolete policies, procedures, and organizations; incorporate electronic links to reference such as revised provisions of the FAR, U.S. Code, and the Code of Federal Regulations; incorporate Office of Federal Procurement Policy Letters, and Executive Orders; and establish revised procedures that follow current established best practices. The DOLAR provides a definition for “Agency Head”, which is inconsistent with the internal Department of Labor Manual Series (DLMS) Chapters 2-800 and 2-900 that establishes DOL procurement operating procedures and policies. Future changes to the DLMS will comport with this definition.
Interested parties should submit comments on the proposed rule at the address, shown below, on or before October 14, 2003 to be considered in the formulation of the final rule.
Comments may be submitted by email to: OASAMRegComments@dol.gov. Otherwise comments may be mailed to Jeffrey Saylor, Director, Division of Acquisition Management Services, 200 Constitution Ave., NW., Room N-5425, Washington, DC 20210-0001.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Jeffrey Saylor, Director, Division of Acquisition Management Services, telephone (202) 693-7285.End Further Info End Preamble Start Supplemental Information
These comprehensive revisions to Parts 2901 through 2954 incorporate changes to the language and structure of the regulations and also update provisions to correspond with the current Federal Acquisition Regulation and Department of Labor policies.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires that, for each rule with a “significant economic impact on a substantial number of small entities,” an analysis shall be prepared describing the rule's impact on small entities and identifying any significant alternatives to the rule that would minimize the economic impact on small entities. This proposed rule revises and updates existing contracting procedures and does not make any major changes to the DOLAR that would have a significant economic impact on a substantial number of small businesses.
Executive Order 12866
This rule is considered by the Department of Labor to be a significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.
Unfunded Reform Mandates Act of 1995
The Unfunded Reform Mandates Act of 1995 (Public Law 104-4) requires agencies to prepare several analytic statements before proposing any rule that may result in annual expenditures of $100 million by State, local, Indian Tribal governments or the private sector. The proposed changes to the DOLAR would not result in expenditures of this magnitude.
Paperwork Reduction Act
The proposed changes to the DOLAR will not impose additional reporting or record-keeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The DOL forms identified in 2953.1 are used for internal review and are not public use documents.
Congressional Review of Agency Rulemaking
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, (5 U.S.C. 804). This NPRM, if published as a final rule, would not: result in an annual effect on the economy of $100 million or more; result in an increase in cost or prices; or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Executive Order 13132: Federalism
The proposed changes to the DOLAR will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.Start List of Subjects
List of Subjects in 48 CFR Parts 2901 through 2953
- Government procurement
For the reasons stated in the preamble, the Department of Labor proposes to amend 48 CFR Chapter 29 by revising Parts 2901 through 2953, to read as set forth below.Start Signature
Signed at Washington, DC this 1st day of August 2003.
Elaine L. Chao,
Secretary of Labor.
- Purpose, Authority, Issuance.
- Deviations From the FAR and DOLAR.
- Career Development, Contracting Authority, and Responsibilities.
- Determinations and Findings. PART 2902—DEFINITIONS OF WORDS AND TERMS
- Definitions. PART 2903—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
- Contractor Gratuities to Government Personnel.
- Contracts With Government Employees or Organizations Owned or Controlled by Them. PART 2904—ADMINISTRATIVE MATTERS
- Contract Reporting.
- Government Contract Files.
- Dissemination of Information.
- Synopsis of Proposed Contract Actions.
- Release of Information.
- Paid Advertisements.Start Printed Page 48997 PART 2906—COMPETITION REQUIREMENTS
- Other than Full and Open Competition.
- Competition Advocates. PART 2907—ACQUISITION PLANNING
- Acquisition Plans.
- Contractor Versus Government Performance (A-76 Considerations). PART 2908—REQUIRED SOURCES OF SUPPLIES AND SERVICES
- Federal Supply Schedules. PART 2909—CONTRACTOR QUALIFICATIONS
- Responsible Prospective Contractors.
- Debarment, Suspension, And Ineligibility.
- Organizational Conflicts of Interest. PART 2910—SPECIFICATIONS, STANDARDS, AND OTHER PURCHASE DESCRIPTIONS
- Procedures. PART 2911—DESCRIBING AGENCY NEEDS
- Selecting And Developing Requirements Documents.
- Liquidated damages. PART 2912—ACQUISITION OF COMMERCIAL ITEMS
- Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items. PART 2913—SIMPLIFIED ACQUISITION PROCEDURES
- Actions at or Below the Micro-purchase Threshold.
- Simplified Acquisition Methods.
- Opening of Bids and Award of Contract. PART 2915—CONTRACTING BY NEGOTIATION
- Contract Pricing.
- Preaward, Award, and Postaward Notifications, Protests, and Mistakes.
- Unsolicited Proposals. PART 2916—TYPES OF CONTRACTS
- Indefinite-Delivery Contracts.
- Time-and-Materials, Labor-Hour, and Letter Contracts. PART 2917—SPECIAL CONTRACTING METHODS
- Interagency Acquisitions Under The Economy Act.
- PART 2919—SMALL BUSINESS PROGRAMS
- Set-Asides for Small Business.
- The Small Business Subcontracting Program.
- Contracting with the Small Business Administration (The 8(a) Program). PART 2920-2921 [RESERVED]
- PART 2922—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
- Basic Labor Policies. PART 2923—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
- Energy Conservation. PART 2924-2927 [RESERVED]
- Sureties and Other Security for Bonds.
- Insurance. PART 2929—TAXES
- State and Local Taxes. PART 2930—COST ACCOUNTING STANDARDS
- CAS Program Requirements. PART 2931—CONTRACT COST PRINCIPLES AND PROCEDURES
- Applicability. PART 2932—CONTRACT FINANCING
- Advance payments for Non-Commercial Items.
- Contractor Funding. PART 2933—PROTESTS, DISPUTES, AND APPEALS
- Disputes And Appeals. PART 2934-2935 [RESERVED]
- PART 2936—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
- Special Aspects of Contracting for Construction.
- Contract Clauses.
- Architect-Engineer Services. PART 2937—SERVICE CONTRACTING
- Service Contracts-General.
- Preference for Performance-Based Contracting (PBC). PARTS 2938-2941 [RESERVED]
- Contract Audit Services.
- Contractor Performance Information. PART 2943—CONTRACT MODIFICATIONS
- Change Orders.
- Forms. PART 2944—SUBCONTRACTING POLICIES AND PROCEDURES
- Consent To Subcontract.
- Contractors' Purchasing Systems Reviews. PART 2945—GOVERNMENT PROPERTY
- Providing Government Property to Contractors.
- Contractor Use and Rental of Government Property. PARTS 2946-2951 [RESERVED]
- Text of Provisions and Clauses. PART 2953—FORMS
- Publication and code arrangement.
- Arrangement of regulations.
- Maintenance of the FAR.
- Agency Control and Compliance Procedures.
- Individual deviations from the FAR.
- Class deviations.
- Deviations pertaining to treaties and executive agreements.
- Contracting officers.
- Ratification of unauthorized commitments.
- Selection, appointment, and termination of appointment.
- Responsibility of other Government personnel.
- Contracting officer's technical representatives (COTR). Start Printed Page 48998
- Administrative procurement reviews.
- Signatory authority.
(Parts 2901 to 2953)
PART 2901—DEPARTMENT OF LABOR ACQUISITION REGULATION SYSTEM
Subpart 2901.0—Scope of Subpart
(a) This chapter may be referred to as the Department of Labor Acquisition Regulation or the DOLAR. This subpart sets forth introductory information about the Department of Labor Acquisition Regulation. This subpart explains the relationship of the DOLAR to the Federal Acquisition Regulation (FAR) and explains the DOLAR's purpose, authority, applicability, exclusions, and issuance.
Subpart 2901.1—Purpose, Authority, Issuance
(a) Chapter 29, Department of Labor Acquisition Regulation, is established within Title 48 of the Federal Acquisition Regulation System of the Code of Federal Regulations.
(b) The purpose of the DOLAR is to implement the FAR, and to supplement the FAR when coverage is needed for subject matter not covered in the FAR. The DOLAR is not by itself a complete document, as it must be used in conjunction with the FAR.
The DOLAR is issued pursuant to the authority of the Secretary of Labor under 5 U.S.C. 301 and 40 U.S.C. 486(c). This authority has been delegated to the Assistant Secretary for Administration and Management (ASAM) under Secretary's Order 4-76 in accordance with FAR 1.301(d)(3).
(a) Numbering. Where DOLAR implements the FAR, the implementing part, subpart, section or subsection of the DOLAR is numbered and captioned, to the extent feasible, the same as the FAR part, subpart, section or subsection being implemented except that the section or subsection being implemented is preceded with a 29 or a 290 such that there will always be four numbers to the left of the first decimal. For example, the DOLAR implementation of FAR l.105-l is shown as 290l.l05-1 and the DOLAR implementation of FAR Subpart 24.1 is shown as DOLAR Subpart 2924.1. Material which supplements the FAR is assigned the subsection numbers 70 and up. For example, the DOL regulation governing appointment and termination of contracting officers' technical representatives is identified as 2901.603-71.
(b) References to FAR materials within the DOLAR will include the acronym FAR and the identifying number, for example, FAR l.104-2(c)(2). References to DOLAR materials within the DOLAR simply cite the identifying number, for example, 2901.104-2(c)(2).
(a) Copies of the DOLAR published in the Federal Register, CD-ROM, or Code of Federal Regulations may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402, or from the Government Printing Office Web page, http://www.gpo.gov/. Requests should reference the DOLAR as Chapter 29 of Title 48. The Code of Federal Regulations is printed in paperback edition with updates as needed. Additional information on DOL may be obtained on the Internet at www.dol.gov. Other DOL procurement policy documents referenced within the DOLAR may be available when appropriate by mail from the Division of Acquisition Management Services.
A member of the Division of Acquisition Management Services (DAMS), an organization within the Office of Acquisition and Management Support Services, the Business Operations Center, Office of the Assistant Secretary for Administration and Management (OASAM), represents the Department of Labor on the Civilian Agency Acquisition Council (CAAC). DAMS will be responsible for coordination with all interested DOL elements regarding proposed FAR revisions, and advocating revisions sought by DOL.
Subpart 2901.3—Agency Acquisition Regulations
DOLAR System issuances are limited to published, codified, Department-wide regulations, which implement or supplement FAR policies and procedures and which affect organizations or individuals seeking to contract with the Department.
(a) The DOLAR is under the direct oversight and control of the Department's Procurement Executive. Procedures for review and approval of issuances under the DOLAR System comply with FAR Subparts 1.3 and 1.4. These procedures are contained in Subpart 2901.6.
(b) DOLAR issuances shall comply with the restrictions in FAR 1.304(b).
(c) Heads of Contracting Activity (HCAs) must submit all proposed instructions and materials that implement or supplement the DOLAR to the Director, DAMS. In conjunction with the Office of the Solicitor, DAMS will review all issuances whether or not they will be published in the Federal Register as a part of the DOLAR System. In the case of internal procurement policy instructions, the purpose of the review is to ascertain that such instructions are consistent with the FAR and the DOLAR and that they do not contain information which should be issued under the DOLAR.
Subpart 2901.4—Deviations From the FAR and DOLAR
(a) The Procurement Executive (PE) is authorized to approve deviations from FAR provisions (see FAR 1.403) or DOLAR provisions, which affect only one contracting action, unless FAR 1.405(e) is applicable. Requests for deviations shall be submitted through the Director, DAMS.
(b) Requests for deviations under paragraph (a) of this section must be submitted by the HCA and include justification as to why the deviation is required.
(c) A copy of the approved deviation must be included in the contract file.
(a) The PE is authorized to approve class deviations from FAR or DOLAR provisions which affect more than one contracting action, unless FAR 1.405(e) is applicable. The request for deviation is submitted through the Director, DAMS.
(b) Requests for deviations under paragraph (a) of this section, must be submitted by the HCA and include justification as to why the deviation is required and the number of contracting actions which will be affected.
(c) For a FAR class deviation the Director, DAMS will consult with the Chair of the CAAC, as required in FAR 1.404(a)(1), before authorizing the deviation.
(d) A copy of the approved class deviation must be included in each contract file.
(e) Recommended revisions to the FAR and a copy of each approved class Start Printed Page 48999FAR deviation will be transmitted to the FAR Secretariat by the Director, DAMS as required in FAR 1.404.
(a) The Director, DAMS is responsible for transmitting to the FAR Secretariat the information required in FAR 1.405(d).
(b) For deviations not authorized by FAR 1.405(b) or (c), the Director, DAMS will process the request for deviation through the FAR Secretariat.
Subpart 2901.6—Career Development, Contracting Authority, and Responsibilities.
(a) This section deals with contracting authority and responsibilities of the head of the agency as described in 2902.1, FAR Subpart 1.6 and this subpart.
(1) The authority and responsibility vested in the Secretary to contract for authorized supplies and services is delegated to the Assistant Secretary for Administration and Management (ASAM).
(2) The ASAM may delegate contracting authority to a bureau or agency within the Department of Labor as he/she delineates in writing.
(b) The Assistant Secretary for Administration and Management, acting through the Procurement Executive, may delegate additional procurement authority subject to the issuance of warrants by the Procurement Executive, and reserves the right to rescind any acquisition authority, if it is determined that such action is in the best interest of the Government.
Contracting warrants, at all levels above the micropurchase threshold, must be requested by the HCA in writing and signed by the Procurement Executive. Warrants may be accompanied by letters of appointment that may provide requirements for maintaining the warrant (e.g., maintaining current documentation for the FAR, DOLAR, and other guidance, and recurrent training). Copies of the appointment shall be maintained in the Division of Acquisition Management Services. Contracting officers must display the original warrant (and its limitations) in their workspace. A listing of current contracting officers may be available for review on the Internet at http://www.dol.gov/oasam/grants/prgms.htm. To modify a contracting officer's authority, the present appointment must be revoked and a new certificate issued.
(a) If the HCA agrees that the commitment appears to be without valid authorization, the Division of Acquisition Management Services must be notified by the HCA in accordance with the procedures outlined in this section.
(b) Ratifications—thresholds. The Department of Labor may only ratify acquisitions that were intended to fulfill a bona fide need and otherwise were authorized when made. If the action to be ratified is not approved, then the employee who authorized the work may be liable for the entire cost of the action. Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority must be processed as follows:
|Dollar threshold||Must be approved by (ratifying official)||Steps to be followed|
|Below the micropurchase threshold||Head of the Contracting Office||a through e & g.|
|Between the micropurchase threshold and the Simplified Acquisition Threshold||Head of Contracting Activity||a through e & g.|
|Above the Simplified Acquisition Threshold||ASAM, after review by the Procurement Review Board||a through g.|
|Note: DOL procurement policies require review by the Procurement Review Board of advisory and assistance services acquisitions above $50,000 for competitive acquisitions and at any dollar amount for noncompetitive acquisitions, and waivers for contracts with employees and recently separated employees. Therefore, review by the PRB is required for unauthorized obligations at these lower thresholds.|
(a) The individual is placed on notice by the contracting officer, in writing, that the purchase may be inappropriate because he did not have a purchasing request, funding, or authority to obligate the Government to make an expenditure of funds.
(i) The individual who made the unauthorized contractual commitment shall furnish the contracting officer all records and documents concerning the commitment and a complete written statement of the facts, including, but not limited to a statement as to why the acquisition office was not used, a description of work to be performed or products to be furnished, an estimated or agreed-upon contract price, citation of appropriation available, and a statement as to whether the contractor has commenced performance.
(ii) In the absence of such an individual, the head of the applicable office will be responsible for providing such information, including an explanation of why the individual who made the unauthorized commitment is unavailable to provide this information.
(b) The individual who made the unauthorized commitment or the head of the applicable office, as appropriate, shall provide a determination and finding (see FAR 1.704) to the contracting officer indicating that:
(i) Supplies or services have been provided to and accepted by the Government, or the Government otherwise has obtained or will obtain a benefit resulting from performance of the unauthorized commitment;
(ii) A procurement request and/or accompanying documentation including a statement signed by the individual that explains why normal acquisition procedures were not followed, explains why the source was selected, lists other sources considered, describes the work, and estimates or states the agreed upon price. (If the DOL employee who made the unauthorized commitment is no longer available, appropriate program personnel must provide the information described in this paragraph); and
(iii) Funds are available and were available at the time of the unauthorized commitment.
(c) The contracting officer reviewing the unauthorized commitment shall determine whether the price is fair and reasonable, and if payment is recommended to the ratifying official. (The contracting officer may rely upon written documentation submitted by managing staff above the individual who made the unauthorized commitment, in making his/her determination.)
(d) Legal review is required before ratification by the ratifying official.
(e) The ratifying official shall make an affirmative determination and finding that:
(i) The resulting purchase order or contract would otherwise have been proper if made by an appropriate contracting officer.
(ii) The contracting officer reviewing the unauthorized commitment has determined that the price is fair and reasonable, and payment is recommended.
(f) For cases over the simplified acquisition threshold, all documentation for steps (a) through (e) must be forwarded to the Director, Division of Acquisition Management Services for submission to the Procurement Review Board. However, the ratifying official is responsible for directing the receipt and acceptance for all products and deliverables received by the Government as a result of an unauthorized commitment.
(g) The supervisor of the individual who made the unauthorized commitment shall prepare a corrective action plan to preclude further unauthorized commitments (e.g. ethics, purchase card, or administrative Start Printed Page 49000procedures training, or other appropriate action). The ratifying official may approve the corrective action plan. The individual shall report to the ratifying official in writing when the corrective action has been initiated and again after it has been fully implemented.
(a) The Procurement Executive will develop and manage an acquisition career management program for contracting personnel. Training requirements must conform to Office of Federal Procurement Policy Letters 92-3, 97-01, and the Federal Acquisition Institutes curriculum. These references are available at:
http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL97-01.html, http://www.arnet.gov/Library/OFPP/PolicyLetters/Letters/PL92-3.html, and through the Federal Acquisition Institute (FAI) at: http://www.faionline.com/fai/campus/index4.htm.
(b) The program must cover all contracting personnel in the following categories:
(1) General Schedule (GS-1102) Contracting Series (See also FAR 1.603);
(2) Contracting officers, regardless of General Schedule Series, with contracting authority above the simplified acquisition threshold;
(3) Purchasing Series (GS-1105), other individuals performing purchasing duties and individuals with contracting authority between the micro-purchase and simplified acquisition thresholds.
(4) All Contracting Officer Technical Representatives as identified in 2901.603-71.
General. In accordance with FAR 1.603-3 appointments will be made in writing on an SF 1402 for all warrants above the micro-purchase threshold. In addition appointments may be made for specific functions unrelated to dollar threshold, such as indirect cost negotiation, debt management, closeout functions.
(a) Purchase cards (micropurchase threshold). Purchase cardholders will be appointed in accordance with the DOL Guidelines for Purchase Card Use and the Agency/Office procedures approved by the HCA. Agency/Organization Purchase Card Coordinators requesting issuance of a purchase card must be responsible for ensuring that the purchase cardholder has taken an orientation course before issuance and/or use of the purchase card. A list of purchase cardholders is available at: http://www.dol.gov/oasam/foia/hotfoia/citibank-list.htm.
(b) Simplified acquisition threshold (currently $100,000). The HCA may request a delegation of procurement authority not to exceed the simplified acquisition threshold based on education, training, and experience, in the acquisition field. Effective October 1, 2003, all new appointments must comply with training requirements listed in “OFPP Policy Letter No. 92-3, Procurement Professionalism Program Policy-Training for Contracting Personnel”, dated June 24, 1992.
(c) $500,000. The HCA may request a delegation of procurement authority not to exceed $500,000 based on the individual's education, training and experience in contracting. Although primarily reserved for those in the GS 1102 series, the HCA may consider business acumen, education, training, and experience. Effective October 1, 2003, all new appointments must comply with training requirements listed in “OFPP Policy Letter No. 92-3, Procurement Professionalism Program Policy-Training for Contracting Personnel”, dated June 24, 1992.
(d) Unlimited. The HCA may request a delegation of procurement authority on an unlimited basis for individuals whose education, training, and experience in contracting warrant such authority. Although primarily reserved for those in the GS 1102 series, the HCA may consider length of service, training, and experience. Effective October 1, 2003, all new appointments must comply with training requirements listed in “OFPP Policy Letter No. 92-3, Procurement Professionalism Program Policy-Training for Contracting Personnel”, dated June 24, 1992.
Termination of a contracting officer's appointment will be made in writing unless the warrant contains the basis for the termination (i.e., retirement, reassignment). Terminations may be immediate, but must not operate retroactively.
(a) Only DOL personnel with contracting authority shall obligate DOL to any type of contractual obligation and only to the extent of their delegated authority. Responsibility for determining how to buy, the conduct of the buying process, and execution of the contract rests with the contracting officer.
(b) Personnel responsible for determining agency needs should maintain a close and continuous relationship with their contracting officer to ensure that acquisition personnel are made aware of contemplated acquisition actions. This will be mutually beneficial in terms of better planning for acquisition action and more timely, efficient and economical acquisition.
(c) Personnel not delegated contracting authority or insufficient contracting authority, may not commit the Government, formally or informally, to any type of contractual obligation. However, DOL personnel who must use the contracting process to accomplish their programs, must support the contracting officer to ensure that:
(1) Requirements are clearly defined and specified without being overly restrictive in accordance with FAR 11.002;
(2) Competitive sources are solicited, evaluated, and selected as appropriate;
(3) The FAR and the Competition in Contracting Act requirements for full and open competition are satisfied to the maximum extent practicable. Sole source purchases may only be permitted in accordance with FAR Subpart 6.3 or other applicable provisions of the FAR (e.g. FAR Part 8) or federal law.
(4) Quality standards are prescribed, and met;
(5) Performance or delivery is timely;
(6) Files are documented to substantiate the judgments, decisions, and actions taken, including compliance with paragraphs (c)(2) and (3) of this section.
(7) Requirements are written in so to encourage competition and to comply with regulations and federal policy for meeting acquisition goals such as performance-based contracting, HUBZone contractors, etc. The contracting officer will identify these programs to the program office.
(a) At the time a COTR is to become responsible for a contract, task order, or delivery order, the contracting officer must issue a written letter of delegation informing the individual by name of his or her authority, including a delineation of applicable limitations and responsibilities. This applies to contracts awarded by the Department of Labor and those awarded by other agencies, such as Federal Supply Schedule Contracts or Economy Act transactions. Only the contracting officer cognizant of the contract action may make a COTR delegation. However, a contracting officer at any level above the cognizant contracting officer may sign the delegation letter, following his or her determination of its accuracy, completeness, and sufficiency. Start Printed Page 49001
(b) The functions of a COTR typically may include such actions as inspecting, testing, and accepting contract line items, monitoring the contractor's performance, controlling Government-furnished property, reviewing and approving and/or recommending to the contracting officer approval/disapproval of vouchers/invoices, etc. An individual COTR may have only the duties specifically identified in a written delegation to him or her by name (i.e., COTR duties may not be delegated to a position) and has no authority to exceed them.
(c) Contracting officers may not delegate to the COTR the following authorities:
(1) The authority to issue task or delivery orders against a contract or any of the agreements defined under FAR 16.7;
(2) The authority to change any of the terms and conditions of a contract or any of the agreements defined under FAR 16.7;
(3) The authority to sign contracts or contract modifications;
(4) The authority to write letters to the contractor that will affect the cost or schedule of the contract. The authority to otherwise write letters to a contractor must require the COTR to send a copy of the letters to the contracting officer for the contract file;
(5) The authority to approve contractors' final invoices under cost-reimbursement contracts. However, the COTR must make a final payment recommendation to the contracting officer; or
(6) The authority to commit the Government to any adjustments to the price or cost of the contract or order (e.g., the contracting officer must sign all pre-negotiation and price negotiation memoranda including those which may be combined into one document for those adjustments valued at $100,000 or less).
(d) The contracting officer's delegation must include the admonition that the COTR may be personally liable for unauthorized commitments. Contracting officer authority to sign or authorize contractual instruments must not be delegated through a COTR designation or by any means other than a contracting officer warrant.
(e) The contractor must be notified of the COTR designation in writing and a copy of the COTR letter of appointment also must be provided to the contractor. The contracting officer must provide the COTR with a copy of the COTR designation notification that was sent to the contractor.
(f) The letter delegating COTR authority must include the contract number, and must include the following information, at a minimum:
(1) Contracting officer's and contract specialist's/administrator's name and telephone number;
(2) COTR's specific authority and responsibilities;
(3) COTR's specific limitations, including the admonition that the COTR may be personally liable for unauthorized commitments;
(4) Detailed description of the types of files and the content of the files to be maintained by the COTR;
(5) Reference to meeting applicable requirements for ethics, procurement integrity, no conflict of interest, and proper standards of conduct, including a copy of FAR Part 3, and other regulations, statutes, or directives governing these topics (e.g., 5 CFR Part 2635, Standards of Conduct);
(6) A requirement that the COTR acknowledge receipt and acceptance of the letter and return it to the contracting officer.
(7) A description of the training required and information on obtaining such training.
(g) Applicability. The eligibility requirements of this subpart must apply to all individuals who are designated by the contracting officer as COTRs.
(h) Eligibility standards. To be determined eligible for an appointment as a DOL COTR, the following standards must be met:
(1) The candidate must attend and successfully complete a minimum of a 16-hour basic COTR course; and
(2) The candidate must attend a minimum of 1 hour of training specifically in procurement ethics, either through courses offered periodically by the Department of Labor, another federal agency's program, or a commercial vendor.
(i) Limitations. Effective October 1, 2003, each COTR appointment made by the contracting officer must clearly state that the representative is not an authorized contracting officer and does not have the authority under any circumstances to:
(1) Award, agree to award, or execute any contract, contract modification, notice of intent, or other form of binding agreement;
(2) Obligate, in any manner, the payment of money by the Government;
(3) Make a final decision on any contract matter which is subject to the clause at FAR 52.233-1, Disputes; or
(4) Terminate, suspend, or otherwise interfere with the contractor's right to proceed, or direct any changes in the contractor's performance that are inconsistent with or materially change the contract specifications.
(j) Termination. (1) Termination of the COTR's appointment must be made in writing by a contracting officer and must give the effective date of the termination. The contracting officer must promptly modify the contract once a COTR termination notice has been issued. A termination notice is not required when the COTR's appointment terminates upon expiration of the contract.
(2) COTRs may be terminated for reasons (not an exhaustive listing) such as exceeding their authorities and limitations, conflicts of interest, unethical conduct, failure to perform, reassignment/resignation/retirement, and upon completion of the contract to which assigned.
(k) Waivers. No individual may serve as a COTR on any contract without the requisite training and signed COTR certificate for the file. In the rare event that there is an urgent requirement for a specific individual to serve as a COTR and the individual has not successfully completed the required training, the HCA may waive the training requirements and authorize the individual to perform the COTR duties.
(a) The Procurement Executive (PE) is responsible for performing administrative procurement reviews for each procurement office in the Department of Labor except the Office of Inspector General (OIG). The purpose of these reviews is to audit internal controls to ensure compliance with established procurement law, regulations, policies, procedures and applicable directives. The reviews are to emphasize the development and improvement of managerial controls and best practices.
(b) The administrative procurement review system is a three-pronged approach that includes self-assessment, statistical data for validation, and flexible quality reviews and assessment techniques. This system is required to:
(1) Evaluate the effectiveness and efficiency of office acquisition systems;
(2) Assess the adequacy of policies, procedures and regulations governing the acquisition process; and
(3) Identify and implement changes necessary to improve the systems.
(c) The PE shall establish procurement review procedures, which will focus on:
(1) Conformance with policies of the FAR, DOLAR and the Department of Labor Manual Series 2-800 and 2-900.
(2) Conformance with federal reporting requirements for the Department of Labor. Start Printed Page 49002
(3) Understanding of new department-wide or government-wide initiatives (e.g., E-Procurement).
(4) Government-wide procedures established by the Office of Management and Budget.
(d) HCAs are responsible for ensuring contracting activity compliance with law and regulations through the review and oversight process.
Subpart 2901.7—Determinations and Findings
A class justification for other than full and open competition must be approved in writing by the same approval authority as for individual justifications in accordance with FAR 6.304(a). The approval level must be determined by the estimated total value of the class.
PART 2902—DEFINITIONS OF WORDS AND TERMS
(a) Commonly used words and terms are defined in FAR Subpart 2.1. This Part 2902 gives DOL-specific meanings for some of these words and terms and defines other words and terms commonly used in the DOL acquisition process.
(b) The following words and terms are used as defined in this subpart unless the context in which they are used clearly requires a different meaning, or a different definition is prescribed for a particular part or portion of a part:
Competition Advocate. The Competition Advocate for the Department of Labor is appointed by the ASAM and is defined in FAR 6.5 and 2906.5. If the appointee is recused from a procurement action, the ASAM may designate another official to act in that capacity.
Contracting activity means an agency or component office within the Department of Labor with specific responsibility for managing contract functions pursuant to one or more warrants signed by the Procurement Executive (or the Office of the Inspector General for its contracting activity).
Contracting Officer's Technical Representative means the individual appointed by the contracting officer to represent the Department of Labor's programmatic interests on a Department of Labor contract, task order, or delivery order. This individual is responsible to the contracting officer for overseeing receipt and acceptance of goods/services by the Government, reporting on the contractor's performance, and approving/disapproving payment to the Contractor. Authority is otherwise limited to giving technical direction to the Contractor within the framework of the contract (see 2901.603-71). This position may go by other titles, such as: A technical point of contact (TPOC), or Contacting Officer's Representative (COR).
Head of Agency (also called agency head), for the FAR and DOLAR only, means the Assistant Secretary for Administration and Management; except that, the Secretary of Labor is the head of Agency for acquisition actions which by the terms of a statute or delegation must be performed specifically by the Secretary of Labor; the Inspector General is the Head of Agency in all cases for the Office of the Inspector General. Authority to act as the Head of Agency has been delegated to the Assistant Secretary for Employment and Training and the Assistant Secretary for Mine Safety and Health for their respective agencies. For purposes of the Economy Act, (determinations and interagency agreements under FAR 17.5) only, the Employment Benefits Administration, Employment Standards Administration, Women's Bureau, Office of Solicitor, Bureau of Labor Statistics, Office of Disability Employment, and the Occupational Safety and Health Administration are delegated contracting authority.
Head of Contracting Activity (HCA) means the official who has overall responsibility for managing the contracting activity, when the contracting activity has more than one person with a warrant issued by the Procurement Executive. In the Department of Labor the following officials are the HCA for their respective organization:
(i) For the Mine Safety and Health Administration, the Director, Administration and Management, MSHA.
(ii) For the Employment and Training Administration, the Director, Office of Grants and Contract Management, ETA.
(iii) For the Office of Inspector General, the Director, Division of Finance and Administration, OIG.
(iv) For the Bureau of Labor Statistics, the Director, Division of Administrative Services, BLS.
(v) For the Office of the Assistant Secretary for Administration and Management and all other agencies not listed in this definition, the Director, Business Operations Center, OASAM.
Procurement Executive means the Director, Business Operations Center, and is synonymous with the term “Senior Procurement Executive” as defined at FAR 2.101.
PART 2903—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
- Standards of Conduct.
- Procurement integrity.
- Disclosure, protection, and marking of contractor bid or proposal information and source selection information.
- Violations or possible violations.
- Reporting suspected violations of the Gratuities clause.
- Treatment of violations.
The statutory prohibitions and their application to DOL personnel are discussed in the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR Part 2635 and the supplemental DOL standards of conduct, 5 CFR Part 5201. All DOL personnel involved in acquisitions must become familiar with these statutory prohibitions. Any questions concerning them must be referred to an Agency Ethics Official in the Office of the Solicitor. In addition to criminal penalties, the statutes provide that transactions entered into in violation of these prohibitions are voidable (18 U.S.C. 218). Any suspected violations must be reported promptly to the Office of Inspector General.
Agency ethics official means the Solicitor or the Associate Solicitor for Legislation and Legal Counsel (LLC).
(a) Government employees serving in the following positions are authorized access to proprietary or source selection information, but only to the extent necessary to perform their official duties:
(1) Personnel participating in technical evaluation panels (i.e., source selection board) or personnel evaluating an offeror's or bidder's technical or cost proposal under other competitive procedures, and personnel evaluating protests.
(2) Personnel assigned to the contracting office.
(3) The initiator of the procurement request (to include the official having principal technical cognizance over the requirement).
(4) Small business specialists.
(5) Personnel assigned to the Office of the Solicitor.
(6) Personnel assigned to the Department of Labor's Division of Cost Determination and the Defense Contract Audit Agency.
(7) Personnel assigned to the Division of Acquisition Management Services.
(8) Members of the Procurement Review Board.
(9) The Office of Inspector General.
(10) Other Government employees authorized by the contracting officer.
(11) Supervisors, at any level, of the personnel listed in this paragraph (a).
(b) The originator of information that may be source selection information must consult with the contracting officer or the procurement officer, who must determine whether the information is source selection information. DOL personnel responsible for preparing source selection information as defined in FAR 2.101 must assure that the material is marked with the legend in FAR 3.104-4 at the time the material is prepared.
(c) Unless marked with the legend “SOURCE SELECTION INFORMATION—SEE FAR 3.104-4,” draft specifications, purchase descriptions, and statements of work could erroneously be released during a market survey in order to determine the capabilities of potential competitive sources (see FAR 7.1 and 7.10).
(a) The Procurement Executive is the individual designated to receive the contracting officer's report of violations.
(b) The HCA or designee must refer all information describing an actual or possible violation to the Associate Solicitor for Legislation and Legal Counsel (LLC), the Procurement Executive and Inspector General staff.
Subpart 2903.2—Contractor Gratuities to Government Personnel
Contractor gratuities offered to Government personnel are subject to the restriction under the Standards of Ethical Conduct for the Employees of the Executive Branch, 5 CFR Part 2635.
Any suspected violations of FAR Subpart 3.2 and the clause at FAR 52.203-3, Gratuities, must be reported to the Office of Inspector General. The authority to determine whether a violation of the Gratuities clause by the contractor, its agent, or another representative, has occurred and the appropriate remedies are delegated to the HCA.
Subpart 2903.6—Contracts With Government Employees or Organizations Owned or Controlled by Them
In addition to restrictions placed on current federal government employees, 18 U.S.C. 207 places some restrictions on contracting with former officers, employees, and elected officials of the executive and legislative branches. Under these prohibitions, contracts with former employees are prohibited for a period of one year from the date of severance of duties unless an exception is granted as set forth in 2903.602.
(a) In accordance with FAR 3.602, only when there is a most compelling reason to do so, is the ASAM authorized to except a contract from the policy in FAR 3.601, after the Procurement Review Board and the agency ethics official have reviewed and recommended approval of the exception. However, when time does not permit, the ASAM may unilaterally approve an exception. The exception and information supporting the exception must be provided to the contracting officer for their official records.
(b) When an exception under this subpart is requested, it is submitted through the director of the cognizant program office to the HCA. In the procurement request, the director must describe the basis for the exception from the restrictions of FAR 3.601.
(c) The Department of Labor may enter into a negotiated contract or an amendment to an existing contract with former employees of DOL within one year of separation (or with firms in which former employees are known to have a substantial interest) only after review and recommendation for approval by the agency ethics official, the Procurement Review Board, and written approval by the ASAM.
(d) Approval of a decision to grant an exception as provided in the section must be documented by a written findings and determination prepared by the requesting official for signature by the Assistant Secretary for Administration and Management. The determination and findings must document compliance with FAR 3.603, FAR 9.5 and DOLAR 2909.5; specify the compelling reason(s) for award; and be placed in the contract files and the files of the PRB.
PART 2904—ADMINISTRATIVE MATTERS
Subpart 2904.6—Contract Reporting
Appendix A to Part 2904 contains a list of recurring reports requested of the Department of Labor. Unless otherwise noted, procurement offices must submit the information identified to the Division of Acquisition Management Services for consolidation into a single report.
(a) DOL's data collection point is the Business Operations Center, Division of Acquisition Management Services, U.S. Department of Labor, 200 Constitution Avenue. NW., Washington, DC 20210.
(b) The SF 279, Individual Contract Action Report (over $25,000), and SF 281, Summary of Contract Actions of $25,000 or less, are due by the tenth day of each month.
Subpart 2904.8—Government Contract Files
(a) The reports listed in Appendix A to this part are applicable to the Department of Labor.
(b) HCAs must be responsible for establishing standard contract files for Start Printed Page 49004their contracting activities. The HCA must provide one or more representative contract files to the Director, Division of Acquisition Management Services (DAMS) as requested for comment.
Appendix A to Part 2904
|Title of report||Reference||Date due||Submitted to|
|1. Report of Proposed Federal Construction*||29 CFR 1.4||Annually; 20-Aug||ESA Davis Bacon.|
|2. Contractor Report of Government Property*||FAR Chapter 45||Annually; 31-Oct||ASC.|
|3. Major Preference Program Goals and Achievements Report*||DLMS 2 1000||By the 20th of each Month||OSBP.|
|4. Semi-annual Labor Enforcement Report||FAR Chapter 22; 29 CFR 5.7(b)||Semi-annually; April 25 and 25-Oct||ESA Service Contract Act.|
|5. A-76 & FAIR Act Inventory||FAIR ACT & OMB MEMO||June 30th of each year||OAMS.|
|6. SF 281, FPDS Summary Contract Action Report ($25,000 or Less)||FAR Subpart 4.6||Quarterly; January 25, April 25, July 25, and 25-Oct||DAMS.|
|7. SF 294, Subcontracting Report for Individual Contracts||FAR Subpart 19.7 SF 294||Semi-annually; April 30; 30-Oct||contracting officer.|
|8. SF 295, Summary Subcontract Report||FAR Subpart 19.7||Semi-annually March 30, September 30||contracting officer.|
|9. Value Engineering Report*||OMB Circular A-131||Annually; 7-Dec||DAMS.|
|10. Report on Federal Support to Universities, Colleges, and Nonprofit Institutions||Section 3(a)(7) of the National Science Foundation(NSF) Act||Annually; O/A, 15-May||Upon request, From NSF.|
|11. Procurement Forecast, Initial and Update||Pub. L. 100-656||Sept 15 (Init.) and Apr 15 (Update)||DAMS|
|For those reports with an (*), if there was no activity for the period being reported, a negative response for the period must be submitted to the requisitioning office.|
SUBCHAPTER B—ACQUISITION PLANNINGPART 2905—PUBLICIZING CONTRACT ACTIONS
Subpart 2905.1—Dissemination of Information
Contracting officers may only use the Government Point of Entry (GPE) for synopsis and dissemination of information concerning procurement actions. The Division of Acquisition Management Services manages the DOL's account.
Subpart 2905.2—Synopsis of Proposed Contract Actions
The Assistant Secretary for Administration and Management is authorized to make the determination prescribed in FAR 5.202(b). A written determination documenting the reasons why advance notice is not appropriate or reasonable must be submitted by the HCA for appropriate action including communication with the officials listed in FAR 5.202(b).
Subpart 2905.4—Release Of Information
(a) Unless the HCA determines that disclosure would be prejudicial to the interests of DOL, the bidder's mailing list or solicitation mailing list may be released upon request.
(b) Any request for release of information is subject to the Freedom of Information Act and FAR 24.2.
All proposed responses to Congressional inquiries must be prepared and forwarded for coordination with the Office of the Solicitor and the Office of Congressional and Intergovernmental Affairs to determine whether circumstances exist that will allow the release of additional information. In such instances, the Congressional requestor must be furnished an interim reply providing the information that is releasable. The interim reply must describe the problem that precludes release of any requested materials, and describe generally what steps, if any, are being taken to make such information available.
Heads of contracting activities are authorized to release long-range acquisition estimates under the conditions in FAR 5.404-1.
Subpart 2905.5—Paid Advertisements
When it is deemed necessary to use paid advertisements in newspapers and trade journals, written authority for such publication may be obtained from the HCA or designee.
(a) Prior to obtaining HCA approval, an agency should seek legal review to determine whether it has appropriate legal authority for advertising. The HCA exercising the authority delegated by 2905.502 must do so in accordance with the procedures set forth in FAR 5.503 and those in this section.Start Printed Page 49005
(b) Requests for procurement of advertising must be accompanied by written authority to advertise or publish which sets forth justification and includes the names of newspapers or journals concerned, frequency and dates of proposed advertisements, estimated cost, and other pertinent information.
PART 2906—COMPETITION REQUIREMENTS
Subpart 2906.3—Other Than Full and Open Competition
(a) Department of Labor acquisitions must comply with the Department of Labor Manual Series (DLMS) 2, Chapter 830 (available for review on the Department of Labor's website or by mail from the Director, Division of Acquisition Management Services, 200 Constitution Ave., NW., Washington, DC 20210-0001). Any proposed noncompetitive acquisition in excess of the simplified acquisition threshold must be fully justified and, if required by the DLMS, submitted to the DOL Procurement Review Board and approved by the Assistant Secretary for Administration and Management and, in the case of research and development contracts, also by the Assistant Secretary for Policy.
(b) With the exception of contracts for advisory and assistance services or for research and development, the contracting officer has the authority below the simplified acquisition threshold to approve sole source contracts. The contracting officer is responsible for assuring that proposed acquisitions below the simplified acquisition threshold are in compliance with FAR and DOLAR requirements regarding competition.
The authority of the agency head to determine that only specified make and models of technical equipment will satisfy the agency's need under FAR 6.302-1 is delegated to the HCA.
Subpart 2906.5—Competition Advocate
The Assistant Secretary for Administration and Management must appoint a Competition Advocate for the Department of Labor. The appointment will be predicated on an understanding of the competition requirements in the FAR, and particularly small business programs.
PART 2907—ACQUISITION PLANNING
- Contents of written acquisition plans.
- Orders against Federal Supply Schedule contracts, Governmentwide acquisition contracts (GWACs), or other existing indefinite-delivery contracts.
- Scope of subpart.
Subpart 2907.1—Acquisition Plans
The Department of Labor has implemented its acquisition planning system in compliance with FAR 7.1 and internal procedures provided in DLMS 2 Section 834. The annual forecast is available for review from: http://www.apps.dol.gov/contract grant/index.htm.
The FAR requirements for justification, review, and approval of bundling of contract requirements also apply to an order from a Federal Supply Schedule contract, Governmentwide acquisition contract, or other indefinite-delivery contract if the requirements consolidated under the order meet the definition of “bundling” at FAR 2.101.
Subpart 2907.3—Contractor Versus Government Performance
The Department of Labor's FAIR Act inventory of commercial activities performed by federal employees and inherently governmental functions may be accessed on the Internet at: www.dol.gov under “Doing Business with the Department of Labor.”
PART 2908—REQUIRED SOURCES OF SUPPLIES AND SERVICES
- Using Schedules.
Subpart 2908.4—Federal Supply Schedules
Small business considerations, procedures regarding both prime and subcontracting and clearances specified in DOLAR 2919 apply to GSA Federal Supply Schedule Orders above the simplified acquisition threshold. Procedures to be followed may be modified by the OSBP as appropriate in order to comply with GSA Federal Supply Schedule procedures (e.g. first tier contracts may be required to report their commercial subcontracting goals to the DOL Office of Small Business Programs).
PART 2909—CONTRACTOR QUALIFICATIONS
- Effect of listing.
- Continuation of current contracts.
Subpart 2909.1—Responsible Prospective Contractors
Before awarding a contract, the contracting officer must make a written determination of the otherwise successful bidder's/offeror's responsibility in accordance with FAR 9.105. In addition to past performance information, the contracting officer must insure that the proposed contractor, and any subcontractor representing more than $25,000 in goods or services, does not appear in the “List of Parties Excluded from Federal Procurement” (available on the Internet at www.epls.arnet.gov. In addition, contracting officers should base their determination of contractor responsibility on a review of the company's “Summary or Financial Report” from Dun & Bradstreet (available on the internet for a fee from http://www.dnb.com/).
Subpart 2909.4—Debarment, Suspension, and Ineligibility
(a) This subpart prescribes DOL policies and procedures governing the debarment and suspension of contractors, the listing of debarred and suspended contractors, contractors declared ineligible (see FAR 9.403) and distribution of the list. This subpart does not apply to Department of Labor debarments or suspensions issued for Davis-Bacon Act and Davis-Bacon Related Act violations, Service Contract Act Violations, Affirmative Action/Equal Employment Opportunity Violations, or violations under other statutes administered by the Department of Labor.
(b) Contracting activity officials shall have the following responsibilities.
(1) Heads of contracting activity (HCA) shall:
(i) Provide an effective system to ensure that contracting staffs consult the “List of Parties Excluded from Federal Procurement and Nonprocurement Programs” at http://epls.arnet.gov/ before soliciting offers, awarding or extending contracts, or consenting to subcontract.
(ii) Consider debarment or suspension of a contractor when cause, as defined under FAR 9.406-2 for debarment and FAR 9.407-2 for suspension, is shown. Contracting officers should consult with their appropriate legal counsel before making a decision to initiate debarment or suspension proceedings. If a determination is made that available facts do not justify beginning debarment or suspension proceedings, the file should be documented accordingly. This determination is subject to reconsideration if warranted by new information.
(iii) When the decision is made to initiate debarment and/or suspension of a contractor, the Procurement Executive must prepare a notice in accordance with FAR 9.406-3(c) or FAR 9.407-3(c). The draft notice, along with the administrative file containing all relevant facts and analysis must be forwarded to the PE, as the debarring and suspending official, following review by the activity's legal counsel.
(2) The Procurement Executive shall:
(i) Review the notice and administrative file for sufficiency and provide for review by other DOL officials as considered appropriate;
(ii) In accordance with FAR 9.406-3(c) or FAR 9.407-3(c), if it is determined that action is warranted, give the contractor prompt notice of the proposed debarment or suspension;
(iii) Direct additional fact-finding as necessary when material facts are in dispute.
(iv) Notify the contractor and any affiliates involved of the final decision to debar or suspend, including a decision not to debar or suspend, in accordance with FAR 9.406-3(c) and FAR 9.407-3(c).
(v) Be responsible for accomplishing the actions required in FAR 9.404(c) within five working days after debarring or suspending a contractor or modifying or rescinding such an action.
(vi) Maintain Department-wide records of debarred or suspended contractors in accordance with FAR 9.404.
(a) Contractors debarred, suspended, or proposed for debarment are excluded from receiving contracts, and agencies must not solicit offers from, award contracts to, or consent to subcontract with these organizations, unless the HCA determines in writing that there is a compelling reason for such action and the Assistant Secretary for Administration and Management approves such determinations.
(b) Bids received from any listed contractor in response to an invitation for bids must be entered on the abstract of bids, and rejected unless the HCA determines in writing that there is a compelling reason to consider the bid and the ASAM approves such action.
(c) Proposals, quotations, or offers received from any listed contractor shall not be evaluated for award or included in the competitive range, nor shall discussions be conducted with a listed offeror during a period of ineligibility, unless the HCA determines in writing that there is a compelling reason to do so and the ASAM approves such action.
(a) At the time an option is being exercised, contracting officers must review the List of Parties Excluded from Federal Procurement and Nonprocurement Programs. If a contractor or significant subcontractor is identified in the listing, the contracting officer must make a written determination either to proceed or to terminate the contract, and must explain the rationale for the decision. In accordance with FAR 9.405-1, contracting officers may continue contracts or subcontracts in existence at the time a contractor is suspended or debarred, unless it is determined that termination of the contract is in the best interest of the Government. The contracting officer must make such determination in writing, after consulting with the contracting officer's technical representative and legal counsel. The determination must be approved by the HCA.
(b) Contracting activities must not renew or otherwise extend the duration of current contracts, or consent to subcontracts, with contractors debarred, suspended, or proposed for debarment, unless the HCA states, in writing, the compelling reasons for renewal or extension and the ASAM approves such action.
(a) The Procurement Executive (PE) is the debarring official for DOL and is authorized to debar a contractor for any of the causes in FAR 9.406-2, using the procedures in 2909.406-3.
(b) The Procurement Executive is authorized to make an exception, regarding debarment by another agency debarring official in accordance with the conditions in FAR 9.406-1(c).
(a) Investigation and referral. Whenever a DOL employee knows a cause for debarment, as listed in FAR 9.406-2, the appropriate HCA affected must be notified. The contracting officer must consult with the Office of the Solicitor and the Office of the Inspector General, as appropriate, and submit a formal recommendation documenting the cause for debarment to the PE.
(b) Notice of proposal to debar. Based upon review of the recommendation to debar and consultation with the Office of the Solicitor and Office of the Inspector General, as appropriate, the PE must initiate proposed debarment by taking the actions listed in FAR 9.406-3(c) and advising the contractor of DOL's rules under 2909.4.
(c) Fact-finding proceedings. For actions listed under FAR 9.406-3(b)(2), the PE must afford the contractor the opportunity to appear at an informal fact-finding proceedings as required by FAR 9.406-3(b)(2)(i). The proceeding must be conducted by the Office of Administrative Law Judges and must be held at a date and location reasonably convenient to the parties concerned. Subject to the provisions of 29 CFR Part 18, entitled “Rules Of Practice And Procedure For Administrative Hearings Before The Office Of Administrative Law Judges”, the contractor and any specifically named affiliates, may be represented by counsel or any duly authorized representative. Either party may call witnesses. The proceedings must be conducted expeditiously and in Start Printed Page 49007such a manner that each party will have a full opportunity to present all information considered pertinent to the proposed debarment. A transcript of the proceedings must be made available to the contractor under the conditions in FAR 9.406-3(b)(2)(ii).
(d) Decision and notice. The PE shall make a decision on imposing debarment in accordance with the procedures in FAR 9.406-3(d), findings of fact of the Administrative Law Judge, and the conditions in FAR 9.406-4 and 9.406-5. Notice of the decision must be provided to the contractor and any affiliates involved in accordance with the procedures in FAR 9.406-3(e).
(a) The Procurement Executive is the suspending official for DOL and is authorized to suspend a contractor for any of the causes in FAR 9.407-2, using the procedures in 2909.406-3.
(b) The Procurement Executive is authorized to make an exception, regarding suspension by another agency suspending official, under the conditions in FAR 9.407-1(d).
(a) Investigation and referral. Whenever a DOL employee knows a cause for suspension, as listed in FAR 9.407-2, the appropriate HCA affected must be notified. The HCA must consult with the Office of the Solicitor and the Office of the Inspector General, as appropriate, and submit a formal recommendation documenting the cause for suspension, to the Procurement Executive.
(b) Notice of suspension. Based upon review of the recommendation to suspend, and consultation with the Office of the Solicitor and the Office of the Inspector General, as required, the PE will initiate suspension by taking the actions listed in FAR 9.407-3(c) and advising the contractor of DOL's rules under this subpart.
(c) Fact-finding proceedings. For actions listed under FAR 9.407-3(b)(2), the Procurement Executive must afford the contractor the opportunity to appear at informal proceedings, as required by FAR 9.407-3(b)(2)(i). Either party may call witnesses. The proceedings must be conducted expeditiously and in such a manner that each party will have a full opportunity to present all information considered pertinent to the proposed suspension.
(d) Suspension decisions. The Procurement Executive must make a final decision on suspension as prescribed in FAR 9.407-3(d). Notice of the decision must be provided to the contractor and any affiliates involved, in accordance with the provisions in FAR 9.407-3(d)(4).
Subpart 2909.5—Organizational and Consultant Conflicts of Interest
(a) The PE is delegated authority by the ASAM to waive any general rule or procedure in FAR 9.5 when its application in a particular situation would not be in the Government's best interest.
(b) Requests for waivers must be made by the HCA to the PE. Each request must include:
(1) An analysis of the facts involving the potential or actual conflict including benefits and detriments to the Government and prospective contractors;
(2) A discussion of the factors which preclude avoiding, neutralizing, or mitigating the conflict; and
(3) Identification of the provision(s) in FAR 9.5 to be waived.
(c) In making determinations under this subpart the PE must request the opinion of the Office of the Solicitor, Division of Legislation and Legal Counsel.
(a) If a prospective contractor disagrees with the decision of a contracting officer regarding an organizational conflict of interest and requests higher level review as referred to in FAR 9.506 the matter must be referred to the Office of the Solicitor, Associate Solicitor for Legislative and Legal Counsel, and the Director, Division of Acquisition Management Services.
(b) Referrals must be made by the head of the contracting agency concerned and include the contracting officer's decision and the position of the prospective contractor.
PART 2910—MARKET RESEARCH
(a) In accordance with FAR 6.302-1(c), purchase descriptions must not specify a product, or specific feature of a product, peculiar to a manufacturer unless they are justified to the contracting officer in writing by the office initiating the purchase request. The justification must state that the product, or specific product feature, is essential to the Government's requirements and other similar products or features will not meet these requirements. This determination must be signed by a representative of the office originating the request and must accompany the purchase requisition submitted to the appropriate contracting office. If such a justification is not made, the contracting officer may assume that another make and model, or a generic product could equally meet the DOL requirement.
(b) In accordance with FAR 10.002(b), the requisitioning office must submit to the contracting officer information demonstrating that a variety of products from various commercial sources have been considered. This requirement is not necessary for required sources (See FAR 8.001). Orders to be placed against non-mandatory sources, such as the Federal Supply Schedules, or other Governmentwide Acquisition Contracts, should include product information concerning multiple sources based on research from the Government web site or other sources. When documented in this manner, the contracting officer may rely on this information in developing a procurement strategy, or for documenting the comparison of catalogs or pricelists.
PART 2911—DESCRIBING AGENCY NEEDS
Subpart 2911.1—Selecting and Developing Requirements Documents
The authority of the Head of an Agency under FAR 11.103(a), to require offerors to demonstrate that the items offered have either achieved commercial market acceptance or been satisfactorily supplied to an agency under current or recent contracts for the same or similar requirements, and otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation, is delegated to the HCA.
Subpart 2911.5—Liquidated damages
In accordance with FAR 11.501(d), the authority of the Head of Agency to recommend to the Department of Treasury, Commissioner, Financial Management Services, that the amount of a contractor's liquidated damages be waived or reduced in whole or in part, is delegated to the HCA.
PART 2912—ACQUISITION OF COMMERCIAL ITEMS
- Tailoring of provisions and clauses for the acquisition of commercial items.
Subpart 2912.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items
In accordance with FAR 12.302(c), a request for waiver to tailor terms inconsistent with customary commercial practice must be documented in a written justification by the contracting officer, and may be approved by the HCA on an individual or class basis.
PART 2913—SIMPLIFIED ACQUISITION PROCEDURES
(a) In accordance with FAR 13.106-3(b), simplified acquisition files must contain documentation of the factors considered in making an award in excess of the micro-purchase threshold. When other than the lowest responsive quotation from a responsible supplier is used as the basis for a purchase, the contracting officer must identify the basis (i.e. best value) of the award and include in the purchase file documentation of the reasons for rejecting any lower quotation and the name of the individual responsible for making the determination to award to other than the lowest priced quotation. The contracting officer has broad discretion in determining the award of a purchase order, which may be based on the factors listed in FAR 13.106-3. This requirement does not necessitate a separate determination if the procurement file contains preprinted standardized classifications for award.
Subpart 2913.2—Actions at or Below the Micro-Purchase Threshold
The Government commercial purchase card must be used in preference to other methods of procurement for purchases up to the micropurchase threshold. Other small purchase methods (Blanket Purchase Agreements, third party drafts, and purchase orders) may be used in lieu of the Government purchase card when it is more cost-effective or practicable.
Subpart 2913.3—Simplified Acquisition Methods
(a) The Government purchase card has far fewer requirements for documentation than other methods of purchasing. However, the same legal restrictions apply to credit card purchases that apply to other purchases using appropriated funds. If a purchase cardholder has questions about the lawfulness of a particular purchase, he or she must initially consult their appropriate office purchase card administrator, who will consult the Office of the Solicitor as necessary.
(b) GAO decisions surrounding the concept of the “availability of appropriations” are often stated in terms of whether appropriated funds are or are not “legally available” for a given expenditure. Restrictions on the purposes for which appropriated funds may be used come from a variety of sources, including the DOL Appropriations Acts, and decisions of the Comptroller General and his predecessor, the Comptroller of the Treasury.
(c) HCAs, Administrative Officers, and contracting officers are encouraged to review the GAO publication entitled Principles of Federal Appropriations Law. This document must be consulted when developing Office/Agency Purchase/Credit Card Program procedures. A number of the more common restrictions which “accounting officers of the Government” have had frequent occasion to consider and apply include, for example:
(1) Payment of attorney's fees;
(2) Purchase of food, entertainment or recreation;
(3) Payment of personal membership fees; and
(4) Payment of personal expense items such as gifts for employees, and entry fees for contests.
(a) In accordance with FAR 13.307, Agencies may use order forms other than the Standard Form (SF) 1449 and may print on those forms the clauses considered to be suitable for purchases. Alternate forms should conform with the Standard Form to the maximum extent practicable.
(b) The SF 30 is to be used to modify a purchase order.
PART 2914—SEALED BIDDING
Subpart 2914.4—Opening of Bids and Award of Contract
The authority of the agency head in FAR 14.404-1(c) and (f) to make a written determination to cancel an invitation for bids and reject all bids after opening and to authorize completion of the acquisition through negotiation, is delegated to the HCA.
(a) The authority to make determinations, as conferred by FAR 14.407-3 (e) is delegated to the HCA, without power of redelegation, but only after consultation with the Office of the Solicitor. All such determinations shall be documented in the contract file.
(b) The following procedures must be followed when submitting doubtful cases of mistakes in bids to the Comptroller General for an advance decision, as provided by FAR 14.407-3(i).
(1) Requests must be made by the HCA after consultation with the Office of Solicitor.
(2) Requests must be in writing, dated, signed by the requestor, addressed to the Comptroller General of the United States, General Accounting Office, Washington, DC 20548, and contain the following:
(i) The name and address of the party requesting the decision; and
(ii) A statement of the question to be decided, a presentation of all relevant Start Printed Page 49009facts, a statement of the requesting party's position with respect to the question, and copies of all pertinent records and supporting documentation.
(a) When only one bid is received in response to an invitation for bids, such bid may be considered and accepted if the contracting officer makes a written determination that:
(1) The specifications used in the invitation were not unduly restrictive,
(2) Adequate competition was solicited and it could have been reasonably assumed that more than one bid would have been submitted,
(3) The price is reasonable, and
(4) The bid is otherwise in accordance with the invitation for bids.
(b) Such a determination must be placed in the contract file.
PART 2915—CONTRACTING BY NEGOTIATION
- Determining fair and reasonable price.
- Discovery of mistakes.
- Agency points of contact.
- Content of unsolicited proposals.
- Agency procedures.
Subpart 2915.4—Contract Pricing
(a) Where the contractor insists on a price or demands a profit or fee that the contracting officer considers unreasonable, and the contracting officer has taken all authorized actions to resolve the matter (see FAR 15.402), the contract action must be referred to the HCA for final resolution.
(b) Resolution under paragraph (a) of this subsection, must be documented and signed by the HCA, and included in the contract file.
Subpart 2915.5—Preaward, Award, and Postaward Notifications, Protests, and Mistakes
(a) The HCA is authorized to make the administrative determinations in FAR 15.508 after consultation with the Office of the Solicitor as required by FAR 14.407-4. This authority may not be redelegated.
(b) The contracting officer must process a mistake and prepare a case file in accordance with the requirements of FAR 14.407-4(e)(2). The file must be submitted to the HCA for final determination.
Subpart 2915.6—Unsolicited Proposals
(a) HCAs shall be the preliminary contacts for unsolicited proposals. This responsibility may be delegated.
(b) HCAs must establish within their agencies procedures for handling unsolicited proposals to ensure that unsolicited proposals are controlled, evaluated, safeguarded and disposed of in accordance with FAR 15.6.
(c) The HCA must not forward for consideration an unsolicited proposal, if the proposal resembles an upcoming solicitation, or a procurement identified in the current annual acquisition plan.
In addition to the contents required by FAR 15.605, unsolicited proposals for research should contain a commitment by the offeror to include cost-sharing, or should represent a significant cost savings to the Department of Labor.
When an unsolicited proposal is received by an official of the Department of Labor, the recipient of the proposal must forward it to the HCA. The HCA must address the requirements of FAR 15.604. The HCA must determine if there is an office(s) within the Department of Labor whose mission could be impacted by the proposal. If there is, the HCA must designate a recipient within that office as an “assignee”, and take the following action:
(a) Within seven (7) working days of receipt, the HCA must forward the proposal to the assignee along with instructions concerning the security, review and disposition of the document.
(1) Inform the offeror of this transfer in writing (preferably by facsimile or other electronic means).
(2) Within one (1) month of receipt of the unsolicited proposal by the assignee, the office receiving the proposal must determine the merit of the unsolicited proposal.
(i) If the office finds insufficient merit to consider the unsolicited proposal further, then a letter will be sent to inform the offeror that their proposal will not be considered further, and is not being retained.
(ii) If, after a comprehensive evaluation as defined by FAR 15.606-2, the office finds merit in the proposal, it must consult with a DOL contracting officer for direction in complying with FAR 15.607. If not excluded by a condition of FAR 15.607(a), a requisition may be prepared in accordance with FAR 15.607(b). If the requirement exceeds the simplified acquisition threshold inclusive of options then a request must be prepared for the Procurement Review Board in accordance with Department of Labor procedures stated in Department of Labor Manual Series 2-830 (available by mail from the Division of Acquisition Management Services).
(b) If within one (1) month of receipt (by the HCA) no assignee can be identified, the HCA must notify the offeror that the proposal is not being considered further.
PART 2916—CONTRACT TYPES
- Scope of part.
This part describes types of contracts that may be used in acquisitions. It further prescribes policies and procedures for implementing contracts.
In accordance with FAR 16.505(b)(5), the Department of Labor Task Order and Delivery Order Ombudsman is the DOL Competition Advocate (see DOLAR Part 2902).
Purchase orders for services above $25,000, task orders against DOL contracts, and GSA for orders against GSA or other Governmentwide contracts for services must comply with the provisions of FAR 16.505.
The HCA is authorized to extend the period for definitization of a letter contract required by FAR 16.603-2(c) in extreme cases, where it is determined in writing that such action is in the best interest of the Government. Start Printed Page 49010
PART 2917—SPECIAL CONTRACTING METHODS
- Scope of part.
- Exercising options.
- Scope of subpart.
- Determinations and findings requirements.
- Ordering procedures.
- Signature authority and Internal Procedures.
This part implements policies and procedures stated in FAR Part 17.
The HCA may, in unusual circumstances, approve option quantities in excess of the 50 percent limit prescribed in FAR 17.203(g)(2). The documentation required by FAR 17.205(a) must include a written justification to fully support the need for such action.
The contracting officer must use a standardized determination and finding before exercising an option in accordance with FAR 17.207(f).
Subpart 2917.5—Interagency Acquisitions Under the Economy Act
This subpart establishes DOL policy and procedures to assure the appropriate and consistent use of interagency acquisitions under the Economy Act (31 U.S.C. 1535) as prescribed by FAR 17.5.
Interagency Acquisition means a procedure by which a DOL agency obtains needed supplies or services from, or through, another DOL agency or Federal agency, and appropriated funds are obligated.
Interagency Agreement means the legal instrument used for an interagency acquisition to exchange funds or property between two DOL organizations, or between a DOL agency and another Federal agency. This instrument is used when the DOL organization meets the definition of either the Requesting Agency or the Servicing Agency.
Interagency Agreement and Interagency Acquisition does not include:
(1) Agreements involving supplies and services acquired from or through mandatory sources, as described in FAR Part 8;
(2) Contracts with the Small Business Administration based upon Section 8(a) of the Small Business Act or a HUBZone small business under the Historically Underutilized Business Zone (HUBZone) Act of 1997;
(3) Cooperative agreements and grants; or
(4) Any agreement or acquisition, where a statute authorizes exception.
Military Interdepartmental Procurement Request (MIPR) means a type of interagency agreement used to place orders for supplies and non-personal services with a military department.
Requesting Agency means the Federal agency that needs the supplies or services, and is obligating the funds to provide for the costs of performance.
Servicing Agency means the Federal agency which is providing the supplies, or performing the services, directly or indirectly, and will be receiving the funds to provide for the costs of performance.
(a) Policy. It is the policy of DOL to require that interagency agreements are written to assure that the obligation of fiscal year funds is valid, that statutory authority exists to obtain or perform the stated requirements, that the stated requirements are consistent with DOL's mission responsibilities, and that each agreement complies with applicable laws and regulations.
(b) Applicability. The provisions of this subpart apply to interagency acquisitions and agreements under the Economy Act.
(c) Appropriations principles. The appropriate use of interagency acquisitions embodies several principles of Federal appropriations law.
(1) In order to record a valid obligation of appropriations, 31 U.S.C. 1501 imposes the requirements that interagency agreements be:
(i) A binding written agreement for specific goods or services to meet an existing bona fide need;
(ii) For a purpose authorized by law; and
(iii) Executed and obligated by the receiving agency before the expiration of available funds.
(2) The Economy Act authorizes interagency acquisitions, and provides for payment in advance, as well as reimbursement to the appropriation account to which the performance costs have been charged. The Economy Act further authorizes the servicing agency, as an alternative to fulfilling the requirement through internal resources, to obtain the needed supplies or services by contract.
(3) An agreement entered into under the Economy Act is recorded as an obligation by the requesting agency the same as a contract. However, under the Economy Act, the obligated appropriations must be deobligated upon the date of “expiration” of the appropriation account to the extent that the servicing agency has not incurred obligations through charged costs or under a contract.
(4) Within DOL, the DOL agencies have a number of statutory authorities available for entering into interagency agreements. Each DOL agency, in consultation with the Office of the Solicitor, must be responsible for determining those authorities, as well as constraints applicable to the use of advance payments and contractors, and set-up procedures.
Applicability. Before the execution of an interagency agreement under the Economy Act, the contracting officer, or other authorized official, must sign the determination required in FAR 17.503 and 31 U.S.C. 1535.
(a) Requests for the processing of interagency agreements must be submitted to the procurement office serving the requisitioning office.
(b) The Procurement Request (PR) must state whether the work is to be performed by a DOL organization, a Federal agency other than DOL, or through one of these entities by a contractor.
(c) Where the Economy Act is to be used as the authority for an interagency acquisition, the requisitioning office must include the facts which support the conclusion that it is more economical to obtain the required supplies or services through the proposed interagency agreement, rather than by direct contract with a commercial concern. Current market prices or recent procurement prices may be used in this process.
(d) Orders placed under interagency agreements may take any form that is legally sufficient and reflects the agreement of the parties.
(e) The contracting officer, or authorized official, must assure compliance with the ordering procedures and payment provisions Start Printed Page 49011prescribed in FAR 17.504 and FAR 17.505, and require inclusion of the following provisions in all interagency agreements and/or orders placed against them:
(1) Legislative authority;
(2) Period of performance;
(3) Dollar amount of agreement;
(4) Billing provisions, including the name and address of the following offices:
(i) Designated office to receive the required deliverables; and
(ii) Designated office to receive billings and process payments;
(5) Modification and termination provisions; and
(6) Other provisions, as appropriate.
(f) The Contracting Officer must assure that each interagency agreement or order placed against it includes a reference number assigned by each of the parties. Such numbers must be assigned in accordance with the existing procedures established by the respective organizations.
(g) Modifications to existing interagency agreements may be accomplished through the use of a SF 30, Amendment of Solicitation/Modification of Contract, or through any other format acceptable to the parties.
(a) A DOL contracting officer, HCA, Agency Head, or another official designated by the ASAM in accordance with FAR 17.503(c), must sign interagency agreements and/or orders placed against them which will result in a procurement action by the requesting or servicing agency.
(b) Internal procedures (DLMS 3-1700) require DOL Agency Heads to provide notice to the Director, Executive Secretariat of the signing of all new Federal Interagency Agreements and deleting expired agreements.
(c) Agencies should be aware that, in addition to the requirements of this subpart, there are various other internal Departmental procedures that apply to various types of agreements. Agencies should consult with the Office of the Solicitor and the Office of the Assistant Secretary for Administration and Management, as appropriate.
PART 2919—SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
- Scope of part.
- General policy.
- Specific policies.
- Encouraging small business participation in acquisitions.
- Locating small Business sources.
- Setting Aside Acquisitions.
- Rejecting Small Business Administration recommendations.
- General Support for the Program.
- Awards involving subcontracting plans.
- Post-award responsibilities of the contracting officer.
- Responsibilities of the cognizant administrative contracting officer.
This part implements FAR Part 19 and small business programs at the Department of Labor.
(a) It is the policy of the Department of Labor to provide maximum practicable opportunities to small businesses in acquisitions.
(b) Management responsibilities for small and disadvantaged business utilization are the responsibility of the Director, Office of Small Business Programs (OSBP). This individual is responsible for performing all functions and duties prescribed in FAR 19.2 including appointing, as prescribed in FAR 19.201(d)(8), a small business specialist (SBS) for each contract office. The Department of Labor Manual Series (DLMS), Chapter 2 1000, addresses the implementation of the preference programs in procurement including HUBZone, Subcontracting Plans, Standard Form 294 (Subcontracting Report for Individual Contracts), and the report, Standard Form 295 (Summary Subcontracting Report) submission, et al.
(c) All DOL procurements over the simplified acquisition threshold, whether being conducted via open market or by ordering from a pre-existing contract vehicle such as GSA Schedule, must be reviewed and receive a recommendation by the Office of Small Business Programs (OSBP), the Department of Labor's Office of Small Disadvantaged Business Utilization, prior to being advertised. The Acquisition Screening and Review Form DL-1-2004 shall be used for this purpose and the statement of work and market survey documentation shall be submitted to OSBP with the request for review.
Contracting Officers, administrative officers and program management shall ensure that procurements are structured and conducted to afford small businesses the maximum practicable opportunity to participate in DOL's prime and subcontracts. Administrative officers will review requisitions, which will result in an award of $2 million or more, using available information to certify whether the acquisition would constitute a “bundled contract” under the definition provided in FAR 2.101 in accordance with procedures established by the Office of Small Business Programs. Each certification will be submitted to the Division of Acquisition Management Services, and included with the requisition to the Contracting Officer. Reports will be provided to the Office of Small Business Programs.
During the performance of a contract, the contracting officer will consider performance against subcontracting plan goals, objectives and planned efforts before exercising an optional period of performance. The Contracting Officer will document the evaluation of the contractor's actual performance using SF-294 data compared to their approved subcontracting plan goals.
Any procurement conducted on an unrestricted basis will include solicitations to small businesses of each category with legislatively established government-wide procurement goals (e.g. small, small disadvantaged, women-owned small, HUBZone and service disabled veteran-owned small businesses) to the extent practicable.
Contracting Officers will conduct market surveys specifically to determine whether procurements should be conducted via 8(a) procedures, HUBZone procedures or as small business set-asides. If a reasonable expectation exists that at least two responsible small businesses may submit offers at fair market prices (three responsible small businesses in Start Printed Page 49012procurements via GSA Federal Supply Schedule), then the procurement will be set aside for small business. Market surveys will be documented in all procurement actions not reserved for small businesses.
When the SBA Procurement Center Representative appeals a “rejection of an SBA recommendation” as referenced in FAR 19.505(b)&(c), the appeal must be referred to the Assistant Secretary for Administration and Management who is authorized to make a final decision.
Contracting Officers will refer subcontracting plans to Office of Small Business Programs for review and recommendation before awarding contracts that require subcontracting plans. Contracting Officers will document the substance of any agreement with the Contractor that permits performance at less than the stated goals recommended by the Office of the Small Business Programs.
Contracting Officers will make available a significant number of award points for quality of the subcontracting plan. High rated subcontract plans will incorporate the highest yield of subcontracting to all categories of small businesses when compared to DOL or separately negotiated agency subcontracting goals on a dollar and percentage basis. Conversely, prime small businesses will be compared favorably to large businesses with subcontract goals, but may also be given the maximum score for qualifying under multiple small business categories. Contracting Officers may also make available a significant number of award points for performance against previous subcontracting plan goals and efforts to achieve those goals.
The Office of Small Business Programs will review subcontracting plans and SF 295 submissions for performance against business goals negotiated between the Department of Labor and the Small Business Administration.
(a) Even when a subcontracting plan was submitted to and approved by OSBP before award, the contracting officer upon award, amendment, or significant modification of a contract, must forward to the Director, OSBP, a copy of the subcontracting plan that was incorporated into a contract or contract modification.
(b) Each contracting activity must maintain a list of active prime contracts containing subcontracting plans.
Contracting officers must collect annual and semiannual subcontracting reports from contractors with established subcontracting plans. Copies of the report, Standard Form 294 (Subcontracting Report for Individual Contracts), and the report, Standard Form 295 (Summary Subcontracting Report), must be forwarded to the Director, OSBP, not later than the 30th day of the month following the close of the reporting period. If the contractor has not met the goals for the reporting period, the contracting officer will provide an acknowledgement to the contractor and request corrective action to be taken. If goals are not met in subsequent periods, the Contracting officer must consider factors that would demonstrate a good faith effort, and take appropriate action including assessing liquidated damages in accordance with FAR 52.219-16, and/or not exercising subsequent option periods.
(a) Contracting officers, or designees, must conduct periodic evaluations of the performance of an 8(a) contract at various stages of the contract period of performance. Any problems encountered during the performance evaluation, which cannot be resolved, must be referred to OSBP for subsequent review and discussion with the appropriate SBA official.
(b) The OSBP and SBA should be notified at least 45 days before initiating final action to terminate an 8(a) contract.
PART 2922—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 2922.1—Basic Labor Policies
Potential or actual labor disputes that may interfere with contract performance must be reported by the contracting activity to the Office of the Solicitor for legal advice or assistance. It may also become necessary to seek advice or assistance from the National Office of the Federal Mediation and Conciliation Service, 2100 K Street, NW, Washington, DC, 20006, or other mediation agencies.
Before initiating any action under FAR 22.101-4 for removal of items from contractors' facilities, the contracting officer must obtain legal advice from the Office of the Solicitor.
The “agency approving official” as identified in FAR 22.103-4(a) and (b) is a manager, supervisor, or executive responsible for the contracting officer's technical representative (see 2901.603-71).
Subpart 2922.8—Equal Employment Opportunity
Executive Order 11246, as amended, sets forth the Equal Opportunity clause and requires that the Secretary of Labor promote full realization of equal opportunity for all persons regardless of race, color, religion, sex, or national origin. No DOL contracting officer may contract for supplies or services in a manner to avoid applicability of the requirements of E.O. 11246.
PART 2923—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 2923.2—Energy and Water Efficiency and Renewable Energy
(a) The GSA Federal Supply Schedule Products Guide identifies the recycled and recycled-content items available in the GSA FSS supply system. Copies of the guide may be obtained, without cost, from the GSA, Centralized Mailing List Service, P.O. Box 6477, Fort Worth, Texas 76115, or by calling (817) 334-5215. See also GSA Advantage!
(b) Executive Order 13123, Greening the Government Through Efficient Energy Management, dated June 8, 1999, requires agencies to select for procurement those energy consuming goods or products which are the most life cycle cost-effective (see FAR 7.101). Green purchasing includes the acquisition of recycled content products, environmentally preferable products and services, biobased products, energy- and water-efficient products, alternate fuel vehicles, and products using renewable energy.
(1) To the extent practicable, each program official must require vendors of goods or products to provide appropriate data that can be used to assess the life cycle cost of each good or product, including building energy system components, lighting systems, office equipment and other energy using equipment.
(2) In preparing solicitations and evaluating and selecting offers for award, contracting personnel must consider the life cycle cost data along with other relevant evaluation criteria. If life cycle costing is not used, the contract file must be documented to reflect the rationale for not obtaining and evaluating the data.
(c) Executive Order 13101, Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition, dated September 14, 1998, requires agencies to comply with executive branch policies for the acquisition and use of environmentally preferable products and services and implement cost-effective procurement preference programs favoring the purchase of these products and services.
(d) Executive Order 13148 Greening The Government Through Leadership in Environmental Management Systems. This Executive Order assists with developing an environmental management system (EMS). Green acquisition is an integral component of an EMS with energy conservation, recycling, etc. The following sources are provided as references for the subject matter indicated:
(1) http://www.ofee.gov/gp/gp.htm. The Office of the Federal Environmental Executive provides references to all greening the Government executive orders, web links to other relevant cites, and information on biobased and bioenergy products.
(2) www.epa.gov/cpg. The Comprehensive Procurement Guidelines program is part of EPA's continued effort to promote the use of materials recovered from solid waste. This listing provides information on products made from recycled materials, such as the carpeting and insulation used in office buildings, or reams of office paper.
(3) www.energystar.gov. ENERGY STAR is a government-backed program helping businesses and individuals protect the environment through superior energy efficiency. See also http://www.eere.energy.gov/femp/procurement/.
(4) http://www.afdc.doe.gov/. The Alternative Fuels Data Center is a one-stop shop for agency alternative fuel and vehicle information needs.
(5) www.emall.dla.mil. The Defense Logistics Agency has created an electronic mall for buying environmental preferable products.
SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTSStart Part PART 2924-2927 [RESERVED] End Part Start Part
PART 2928—BONDS AND INSURANCE
Subpart 2928.2—Sureties and Other Security for Bonds
Upon receipt of any of the types of securities listed in FAR 28.201 or FAR 28.203, the contracting officer must verify the validity of the security and coordinate the retention of the security with the Chief Financial Officer. Contracting officers may obtain access to Department of Treasury Circular 570 through the Internet at http://www.fms.treas.gov/c570/index.html.
The authority of the agency head to recommend to the Secretary of Labor waiver of the applicability of the Defense Base Act (42 U.S.C. 1651 et seq.) to any contract, subcontract, work location, or classification of employees, is delegated to the HCA.
Contract tax problems or questions must be referred by the contracting officer to the Office of the Solicitor for resolution.
Subpart 2929.3—State and Local Taxes
(a) Contractors may only be treated as agents of the Government for the purposes set forth in FAR 29.303(a) upon the written review and approval of the Assistant Secretary for Administration and Management.
(b) Requests for approval under paragraph (a) of this section must be submitted by the HCA through the Office of the Solicitor, to the Division of Acquisition Management Services, for further action.
PART 2930—COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 2930.2—CAS Program Requirements
(a) The Head of Contracting Activity is authorized to waive CAS requirements as provided in FAR 30.201-5.
(b) Requests for waivers under paragraph (a) of this subsection must be prepared by the contracting officer as Start Printed Page 49014prescribed in FAR 30.201-5(e) and submitted to the HCA.
PART 2931—CONTRACT COST PRINCIPLES AND PROCEDURES
Individual and class deviations from cost principles in FAR Part 31 must be processed as prescribed in DOLAR Subpart 2901.4.
PART 2932—CONTRACT FINANCING
Subpart 2932.4—Advance Payments for Non-Commercial Items
The HCA is authorized to approve determinations and findings as well as contract terms for advance payments. The contracting officer must submit a recommendation for approval or disapproval of the contractor's request to the HCA.
The HCA may authorize advance payments without interest pursuant to FAR 32.407.
Subpart 2932.7—Contract Funding
(a) Except in unusual circumstances, the contracting office may not issue solicitations until an approved procurement request (PR), containing a certification that funds are available, has been received. However, the contracting office may take all necessary actions up to the point of contract obligation before receipt of the PR certifying that funds are available when:
(1) The Assistant Secretary, Inspector General, Bureau Chief, Deputy Under Secretary, Solicitor of Labor, Commissioner, or Director Women's Bureau certifies that such action is necessary to meet critical program schedules for their program area;
(2) The Budget Officer certifies that program authority has been issued and funds to cover the acquisition will be available before the date set for receipt of proposals;
(3) The solicitation includes the clause at FAR 52.232-18, Availability of Funds.
(b) The contracting office may not open bids/close solicitations until a PR, either planning or final, has been received that contains a certification of fund availability. Only the project or program official with the authority to commit funds from the agency that initiated the PR may make that written certification.
(c) The project or program office that initiated the PR is responsible for obtaining required certifications.
PART 2933—PROTESTS, DISPUTES, AND APPEALS
- Protests to the agency.
- Protests to GAO.
- Suspected fraudulent claims.
- Contracting officer's decision.
- Contracting officer's duties upon appeal.
- Obligation to continue performance.
- Department of Labor Board of Contract Appeals.
(a) The Division of Acquisition Management Services, N-5425, 200 Constitution Ave., NW., Washington DC 20210-0001, telephone (202) 693-7285, facsimile (202) 693-7290 (or the Office acting in that capacity), is responsible for coordinating procurement protests filed with the General Accounting Office.
(b) The authority of the Assistant Secretary for Administration and Management under FAR 33.102(b) to determine that a solicitation, proposed award, or award does not comply with the requirements of law or regulation may be delegated to the HCA.
(a) In accordance with Executive Order 12979, the following procedures apply to agency protests:
(1) The filing time frames in FAR 33.103(e) apply to agency protests. An agency protest is filed when the protest complaint is received at the location the solicitation designates for serving protests; or if none is designated, when filed with a contracting officer or HCA.
(2) An interested party filing an agency protest may request either that the contracting officer or the Agency Protest Official decide the protest. The “Agency Protest Official” is an individual above the level of the contracting officer and designated by the ASAM, such as the Competition Advocate. The deciding official, whether a C.O. or Agency Protest Official, who must work in consultation with the Office of Solicitor to resolve a protest.
(3) In addition to the information required by FAR 33.103(d)(2), the protest must:
(i) Indicate that it is a protest to the agency.
(ii) Be contemporaneously filed with the contracting officer.
(iii) State whether the protestor chooses to have the contracting officer or the Agency Protest Official decide the protest. If the protest is silent on this matter, the contracting officer will decide the protest.
(b) “Interested Party” means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.
(c) If the Agency Protest Official is chosen by the protestor to decide the protest, this is an alternative to a decision by the contracting officer, not an appeal. The Agency Protest Official will not consider appeals from a contracting officer's decision on an agency protest.
(d) The deciding official should consider conducting a scheduling conference with the protestor within five (5) days after the protest is filed. The scheduling conference will establish deadlines for written arguments in support of the agency protest and for agency officials to present information in response to the protest issues. Alternative Dispute Resolution (ADR) techniques will be considered if determined appropriate by the deciding official.
(e) Oral conferences may take place either by telephone or in person. Other parties may attend at the discretion of the deciding official.
(f) Apart from its protest document, the protestor will be given only one opportunity to support or explain in writing the substance of its protest. Department of Labor procedures do not provide for any discovery. The deciding official has discretion to request additional information from either the agency or the protestor. However, the deciding official will normally decide protests on the basis of information Start Printed Page 49015provided by the protestor and the agency.
(g) The preferred practice is to resolve protests through informal oral discussion.
(h) An interested party may represent itself or be represented by legal counsel. The Department of Labor will not reimburse the protester for any legal fees or costs related to the agency protest.
(i) If an agency protest is received before contract award, the contracting officer may only make award if the HCA makes a determination to proceed under FAR 33.103(f)(1). Similarly, if an agency protest is filed within ten (10) days after award, or within five (5) days of the offered of a debriefing required by FAR 15.505 or 15.506, whichever is later, the contracting officer must suspend performance of the contract unless the HCA makes a determination to proceed under FAR 33.103(f)(3). Any stay of award or suspension of performance remains in effect until the protest is decided, dismissed, or withdrawn.
(j) The deciding official must make a best effort to issue a decision on the protest within twenty (20) days after the filing date. The decision may be oral or written, dependent upon advice of legal counsel.
(k) The deciding official must send a confirming letter within three (3) days after the decision using a means that provides evidence of receipt. The confirming letter must include the following information:
(1) State whether the protest was denied, sustained or dismissed.
(2) Indicate the date the decision was provided.
(3) If the deciding official sustains the protest, relief may consist of any of the following:
(i) Recommendation that the contract be terminated for convenience or cause, or that the solicitation be canceled.
(ii) Recompeting the requirement from the beginning of the solicitation or from the last round of negotiations.
(iii) Amending the solicitation.
(iv) Refraining from exercising contract options.
(v) Awarding a contract consistent with statute, regulation, and the terms of the solicitation.
(vi) Other action that the deciding official determines is appropriate.
(l) If the deciding official sustains a protest, then within 30 days after receiving the official's recommendations for relief, the contracting officer must either:
(1) Fully implement the recommended relief; or
(2) Notify the deciding official, if the contracting officer was not the deciding official, in writing, if any recommendations have not been implemented and explain why.
(m) If the protest is denied, and contract performance has been suspended under paragraph (i) of this section, the contracting officer will not lift such suspension until five (5) days after the protest decision has been issued, to allow the protester to file a protest with the General Accounting Office, unless the HCA makes a new finding under FAR 33.103(f)(3). The contracting officer shall consider allowing such suspension to remain in effect pending the resolution of any GAO proceeding.
(n) Proceedings on an agency protest may be dismissed or stayed if a protest on the same or similar basis is filed with a protest forum outside of the Department of Labor.
(a) General procedures. The HCA has the responsibility to prepare and provide to the General Accounting Office (GAO) the agency report with the information required by FAR 33.104(a). The agency report must be coordinated with the Office of the Solicitor before the report is signed and sent to the GAO.
(b) Protests before award. The authority of the HCA under FAR 33.104(b) to authorize a contract award when the agency has received notice from the GAO of a protest filed directly with the GAO is nondelegable. The HCA has the responsibility to prepare and provide to the GAO the written finding with the information required by FAR 33.104(b)(1). The written finding must be coordinated with Office of the Solicitor before the HCA affirms its approval by signing the written finding and sending it to the GAO. Copies of the signed written finding and the signed written notice to the GAO must be provided to the PE within two (2) working days after they are sent to the GAO.
(c) Protests after award. The authority of the HCA under FAR 33.104(c) to authorize contract performance when the agency has received notice from the GAO of a protest filed directly with the GAO is nondelegable. The HCA has the responsibility to prepare and provide to the GAO the written finding with the information required by FAR 33.104(c)(2). The written finding must be coordinated with the Office of the Solicitor before the notice is signed by the HCA and sent to the GAO.
(d) Notice to the GAO. The authority of the HCA under FAR 33.104(g), to report to the GAO the failure to fully implement the GAO recommendations with respect to a solicitation for a contract or an award or a proposed award of a contract within 60 days of receiving the GAO recommendations, is nondelegable. The written notice must be coordinated with the Office of the Solicitor before the notice is signed by the HCA and sent to the GAO. A copy of all notices to the GAO submitted in accordance with FAR 33.104(g) must be provided to the PE within 2 working days after they are sent to the GAO.
Subpart 2933.2—Disputes and Appeals
The authority of the agency head to determine that the application of the Contract Disputes Act of 1978 to any contract with a foreign government or agency of that government, or an international organization or a subsidiary body of that organization, would not be in the public interest is delegated to the HCA.
The contracting officer must refer all matters relating to suspected fraudulent claims by a contractor under the conditions in FAR 33.209 to the Office of the Inspector General for further action or investigation.
The written decision required by FAR 33.211(a)(4) must include, in the paragraph listed under FAR 33.211(a)(4)(v), specific reference to the Department of Labor Board of Contract Appeals (LBCA), 800 K Street, NW., Washington, DC 20001-8002.
(a) When a notice of appeal has been received, the contracting officer must endorse on the appeal the date of mailing (or the date of receipt if the notice was not mailed). The contracting officer must also notify the Solicitor of Labor of the appeal.
(b) The contracting officer should prepare and transmit the administrative file for the Office of the Solicitor and assist with the appeal.
The contracting officer must include the clause at FAR 52.233-1, Disputes (Alternate I), in contracts where continued performance is necessary pending resolution of any claim arising under or relating to the contract.
(a) The Department of Labor Board of Contract Appeals (LBCA) is authorized by the Secretary to consider and Start Printed Page 49016determine appeals from decisions of contracting officers arising under a contract, or relating to a contract, made by the Department or any other executive agency when such agency or the Administrator of the Office of Federal Procurement Policy has designated the LBCA to decide the appeal.
(b) The LBCA rules of procedure are contained in 41 CFR Part 29-60.104, appearing in the July 1, 1983 edition of 41 CFR subtitle A, chapters 19 to 100.
PART 2936—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
- Evaluation of contractor performance.
- Construction contracts with architect-engineer firms.
- Selection of firms for architect-engineer contracts.
- Selection criteria.
- Evaluation boards.
- Evaluation board functions.
- Selection authority.
- Short selection processes for contracts not to exceed $100,000.
- Collecting data on and appraising firms' qualifications.
- Performance evaluation.
Subpart 2936.2—Special Aspects of Contracting for Construction
The HCA must establish procedures to evaluate construction contractor performance and prepare performance reports as required by FAR 36.201.
As required by FAR 36.209, no contract for construction of a project may be awarded to the firm that designed the project, or to its subsidiaries or affiliates, without the written approval of the ASAM. Any request for approval must include the reason(s) why award to the design firm is required; an analysis of the facts involving potential or actual organizational conflicts of interest including benefits and detriments to the Government and the prospective contractor; and the measures which are to be taken to avoid, neutralize, or mitigate conflicts of interest.
Subpart 2936.5—Contract Clauses
The HCA is authorized to make the determination regarding the impracticability of Government performance of original and final surveys as prescribed in FAR 36.516.
Subpart 2936.6—Architect-Engineer Services
HCAs are authorized to approve the use of design competition under the conditions in FAR 36.602-1(b).
HCAs must establish procedures to provide permanent or ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-2. Procedures must provide for the appointment of private practitioners of architecture, engineering, or related professions when such action is determined in writing by the HCA to be essential to meeting the Government's minimum needs.
The selection report required in FAR 36.602-3(d) must be prepared for the approval of the HCA.
The HCA is authorized to serve as the designated Selection Authority in accordance with FAR 36.602-1.
The selection process prescribed in FAR 36.602-5(b) must be used for architect-engineer contracts not exceeding the Simplified Acquisition Threshold.
(a) HCAs who acquire architect-engineer services must establish procedures to comply with the requirements of FAR 36.603.
(b) Copies of procedures established under paragraph (a) of this section must be submitted to the Division of Acquisition Management Services, for review and recommendation for approval to the HCA when updated. These procedures must include a list of names, addresses, and telephone numbers of offices or boards assigned to maintain architect-engineer qualification data files.
(a) The HCA must establish procedures to evaluate architect-engineer contractor performance as required in FAR 36.604. Normally, the performance report must be prepared by the contracting officer's authorized representative or other official who was responsible for monitoring contract performance and who is qualified to evaluate overall performance. DOL Agency/Office procedures must prescribe instructions for review of the report, before distribution, as prescribed in FAR 36.604(b).
(b) Performance reports must be made using Standard Form 1421, Performance Evaluation (Architect-Engineer) as prescribed in FAR 36.702(c). Details covering unsatisfactory performance, including Government notification to the contractor and written comments by the contractor, must also be attached to the report.
PART 2937—SERVICE CONTRACTING
- Contracting officer responsibility.
- Department of Labor checklist to aid analysis and review of requirements for service contracts.
- Elements of performance-based contracting.
Subpart 2937.1—Service Contracts-General
The HCA is responsible for establishing internal review and approval procedures for service contracts in accordance with OFPP Policy Letter 93-1, “Management Oversight of Service Contracting”. As defined by FAR 37.101, contracts for personal services are permitted under the circumstances in 5 U.S.C. 3109.
Contracting specialists and contracting officers must work in close collaboration with the beneficiaries of the services being purchased to ensure that contractor performance meets contract requirements and performance standards.
(a) General. Following is a checklist to aid analysis and review of requirements for service contracts.
(1) Is the statement of work complete, with a clear-cut division of responsibility between the contracting parties? Start Printed Page 49017
(2) Is the statement of work discussed in terms the market can satisfy?
(3) Does the statement of work encompass all commercially available services that can meet the actual functional need (eliminates any nonessential preferences that may thwart full and open competition)?
(4) Is the statement of work performance-based to the maximum extent possible (i.e., is the acquisition structured around the purpose of the work to be performed, as opposed to either the manner by which the work is to be performed or a broad and imprecise statement of work?
(b) Cost effectiveness. If the response to any of the following questions is negative, the agency may not have a valid requirement or not be obtaining the requirement in the most cost effective manner.
(1) Is the statement of work written so that it supports the need for a specific service?
(2) Is the statement of work written so that it permits adequate evaluation of contractor versus in-house cost and performance?
(3) Are the choices of contract type, quality assurance plan, competition strategy, or other related acquisition strategies and procedures in the acquisition plan appropriate to ensure good contractor performance to meet the user's needs?
(4) If a cost reimbursement contract is contemplated, is the acquisition plan adequate to ensure that the contractor will have the incentive to control costs under the contract?
(5) Is the acquisition plan adequate to address the cost effectiveness of using contractor support (either long-term or short-term) versus in-house performance?
(6) Is the cost estimate, or other supporting cost information, adequate to enable the contracting office to effectively determine whether costs are reasonable?
(7) Is the statement of work adequate to describe the requirement in terms of “what” is to be performed as opposed to “how” the work is to be accomplished?
(8) Is the acquisition plan adequate to ensure that there is proper consideration given to “quality” and “best value?”
(c) Control. If the response to any of the following questions is negative, there may be a control problem.
(1) Are there sufficient resources to evaluate contractor performance when the statement of work requires the contractor to provide advice, analysis and evaluation, opinions, alternatives, or recommendations that could significantly influence agency policy development or decision-making?
(2) Does the quality assurance plan provide for adequate monitoring of contractor performance?
(3) Is the statement of work written so that it specifies a contract deliverable or requires progress reporting on contractor performance?
(4) Is agency expertise adequate to independently evaluate the contractor's approach, methodology, results, options, conclusions or recommendations?
(d) Conflicts of interest. If the response to any of the following questions is affirmative, there may be a conflict of interest.
(1) Can the potential offeror perform under the contract to devise solutions or make recommendations that would influence the award of future contracts to that contractor?
(2) If the requirement is for support services (such as system engineering or technical direction), were any of the potential offerors involved in developing the system design specifications or in the production of the system?
(3) Has a potential offeror participated in earlier work involving the same program or activity that is the subject of the present contract wherein the offeror had access to source selection or proprietary information not available to other offerors competing for the contract?
(4) Will the contractor be evaluating a competitor's work?
(5) Does the contract allow the contractor to accept its own products or activities on behalf of the Government?
(6) Will the work under this contract put the contractor in a position to influence government decision-making, e.g., developing regulations that will affect the contractor's current or future business?
(7) Will the work under this contract affect the interests of the contractor's other clients?
(8) Are any of the potential offerors, or their personnel who will perform the contract, former agency officials who—while employed by the agency—personally and substantially participated in the development of the requirement for, or the procurement of, these services within the past two years?
(e) Competition. If the response to any of the following questions is negative, competition may be unnecessarily limited.
(1) Is the statement of work defined so as to avoid overly restrictive specifications or performance standards?
(2) Is the contract formulated in such a way as to avoid creating a continuous and dependent arrangement with the same contractor?
(3) Is the use of an indefinite quantity or term contract arrangement appropriate to obtain the required services?
(4) Will the requirement be obtained through the use of full and open competition?
Subpart 2937.2—Advisory and Assistance Services
(a) HCAs having a requirement for certain advisory and assistance services are required by the Department of Labor Manual Series (See DLMS 2 836) to prepare a written justification for such services. Written justification must be submitted to the ASAM for review by the Procurement Review Board, for ASAM approval.
(b) Regardless of the type of action planned, the justification in paragraph (a) of this section must include the following:
(1) A statement of need, which certifies that the requested services do not unnecessarily duplicate any previously performed work.
(2) Nature and scope of the need, and the results expected.
(3) Extent to which in-house staff availability was assessed, and the reasons why procurement of outside services is necessary.
(4) Any additional information or data that support the requirement for a contract.
(5) Name(s) and title(s) of official(s) who will be assigned as project officer(s) to work with the contractor, and who can be contacted for additional information.
(6) A statement that the Government policy on advisory and assistance services has been reviewed and complies with FAR 37.203.
Subpart 2937.6—Preference for Performance-Based Contracting (PBC)
(a) Performance-based contracting is defined in FAR 37.101 and discussed in FAR 37.6. Although FAR Part 37 primarily addresses services contracts, PBC is not limited to these contracts. PBC is the preferred way of contracting for services. (See exceptions listed in FAR 37.102). Generally, when contract performance risk under a PBC specification can be shifted to the contractor to allow for the operation of objective incentives, a contract type with objectively measurable incentives Start Printed Page 49018(e.g., Firm-Fixed-Price, Fixed-Price-Incentive-Fee, or Cost-Plus-Incentive-Fee) is appropriate. However, when contractor performance (e.g., cost control, schedule, or quality/technical) is best evaluated subjectively using qualitative measures, a Cost-Plus-Award Fee contract may be used.
(b) A labor hour level-of-effort contract is not considered a performance-based contract.
SUBCHAPTER G—CONTRACT MANAGEMENTStart Part
PART 2942—CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 2942.1—Contract Audit Services
The OASAM Division of Cost Determination is responsible for establishing billing rates and indirect cost rates as prescribed in FAR 42.7 for the Department of Labor.
Subpart 2942.15—Contractor Performance Information
This subpart provides policies and procedures for evaluating, maintaining, and releasing contractor performance information under DOL contracts.
DOL contracting officers are required to use or interface with the National Institutes of Health's Contractor Performance System. The HCA is responsible for ensuring that a contractor performance evaluation system is generated to meet the requirements of FAR Subpart 42.15. Contracts, task orders, and delivery orders, exceeding the simplified acquisition threshold, should be formally evaluated in writing. Interim evaluations should be performed on contracts exceeding one year in duration. This will assist contractors with improving marginal performance and identifying any major deficiencies. It will also facilitate performance evaluations at contract completion, as well as determining whether to exercise contract options, if any.
(a) In accordance with FAR 42.1502, the contracting officer will prepare an interim evaluation of a contractor's performance at least annually for submission to the Contractor Performance System maintained by the National Institutes of Health.
(b) The contracting officer, or designee, must determine who will evaluate a contractor's performance. The contracting officer's technical representative, program manager, contract specialists or administrators, and users are candidates likely to be selected to perform the evaluation.
(c) A Contractor's performance evaluation should be obtained from a person who monitored contractor performance, when that individual's assignment of duties or employment terminates before physical completion of the contract. The areas of performance to be selected for evaluation should be tailored to the type of supplies or services normally acquired by the contracting activities and the type of contract. HCAs must ensure uniformity of the evaluation criteria within their contracting activities.
(d) Release of contractor performance evaluation information. (1) Requests for performance evaluation information from the public must be processed in accordance with FOIA, as implemented by DOL under 29 CFR Part 70.
(2) Release of a contractor's performance evaluation information to other federal agencies is subject to FAR 42.1502. When the performance evaluation information is released to other federal agencies, it should be provided with a written statement that it is nonpublic information that must be processed under FOIA principles if a request for its disclosure is received.
(e) Even though the retention period for past performance evaluation information is three years (see FAR 42.1503), the contractor's performance evaluation, any contractor rebuttal, and final decision become a part of the contract file. Therefore, disposal of the contractor's evaluation information must be accomplished in accordance with FAR 4.804.
PART 2943—CONTRACT MODIFICATIONS
Subpart 2943.2—Change Orders
HCAs may establish procedures, or office policies, when appropriate for authorizing the contracting officer to vary the 30-day period for submission of adjustment proposals to the clauses prescribed by FAR 43.205.
(a) FAR 43.301(a)(1)(vi) requires the use of Standard Form 30 (SF-30) to execute any obligation or deobligation of contract funds after award. The SF-30 also must be used to deobligate funds when effecting contract closeout, when obligated funds exceed the final contract costs. In such an instance, the SF-30 may be issued as an administrative modification on a unilateral basis if the contractor's financial release has been separately obtained.
(b) The contracting officer must include in any unilateral contract modification issued for contract closeout, a statement that the contractor has signed a release of claims and indicate the date the release of claims was signed by the contractor. The SF-30 must also be used to execute purchase order modifications as specified in FAR 13.302-3(b).
PART 2944—SUBCONTRACTING POLICIES AND PROCEDURES
The waiver of consent must be in writing, signed by the contracting officer, and included in the contract file. The waiver must include all supporting facts, including the rationale for waiving the consent to subcontract requirements.
Subpart 2944.2—Consent To Subcontract
In accordance with FAR 44.201-1(b) or FAR 44.201-2, advance notification and agreement are required for all cost-reimbursement, time-and-materials, or labor-hour subcontracts exceeding the simplified acquisition threshold.
The review required by FAR 44.202-2(a) must be documented in writing (including supporting facts and rationale), signed by the contracting officer, and included in the contract file.
Any limitations placed on the consent to subcontract must be documented in writing (including supporting facts and rationale), signed by the contracting officer, and included in the contract file.
Subpart 2944.3—Contractors' Purchasing Systems Reviews
The authority of the ASAM under FAR 44.302(a), to raise or lower the $25 million review level for a contractor's purchasing system, may not be delegated. When a CPSR is required by the Contracting Officer, the effort must be coordinated with the Division of Acquisition Management Services, and the Division of Cost Determination.
PART 2945—GOVERNMENT PROPERTY
- Review and correction of contractors' property control systems.
- Records of Government property.
- Providing facilities.
- Rental-use and charges clause.
When the Government's property administrator determines that review and approval of the contractor's property control system rests with the DOL, the Government's property administrator must review the system to determine whether the contractor will be able to meet the requirements of FAR 45.104. The review must be completed, signed by the appointed property administrator, and retained in the contract file.
Contracting officers must maintain a file on any Government property in the possession of the contractors. As a minimum, the file must contain the following:
(a) A copy of the applicable portions of the contract that list the Government-furnished property (GFP);
(b) Contracting officer's letters assigning the Government property administrator to the contract;
(c) Written evidence that the contractor's property control system was reviewed and approved as required by FAR 45.104;
(d) If applicable, documentation of the request and approval or denial of the contractor's requests to acquire or fabricate special test equipment in accordance with FAR 45.307 or other property;
(e) The contractor's written notice of receipt of the GFP and any reported discrepancies thereto, as required by FAR 45.502-1 and 45.502-2, respectively;
(f) Any other documents pertaining to or affecting the status of the Government property in the possession of contractors or subcontractors under the contract;
(g) Documentation of the screening and disposal of all Government property as required by FAR 45.6.
Subpart 2945.3—Providing Government Property to Contractors
The HCA is authorized to make the determination to provide facilities to a contractor as prescribed in FAR 45.302-1(a)(4).
Subpart 2945.4—Contractor Use and Rental of Government Property
The HCA must make the determination to charge rent on the basis of use under the clause at FAR 52.245-9 when the contracting officer provides access to Government production and research property, as prescribed in FAR 45.403(a).
PARTS 2946-2951 [RESERVED]End Part Start Part
PART 2952—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
- Contracting Officer's Technical Representative (COTR).
Subpart 52.2—Text of Provisions and Clauses
Insert the following clause into contracts requiring COTR representation under 2901.605:
Contracting officer's technical representative (COTR) [Effective Date of Final Rule]
(a) Mr./Ms. (Name) of (Organization) (Room No.), (Building), (Address), (Area Code & Telephone No.), is hereby designated to act as contracting officer's technical representative (COTR) under this contract.
(b) The COTR is responsible, as applicable, for: receiving all deliverables, inspecting and accepting the supplies or services provided hereunder in accordance with the terms and conditions of this contract; providing direction to the contractor which clarifies the contract effort, fills in details or otherwise serves to accomplish the contractual Scope of Work; evaluating performance; and certifying all invoices/vouchers for acceptance of the supplies or services furnished for payment.
(c) The COTR does not have the authority to alter the contractor's obligations under the contract, and/or modify any of the expressed terms, conditions, specifications, or cost of the agreement. If, as a result of technical discussions, it is desirable to alter/change contractual obligations or the Scope of Work, the contracting officer must issue such changes.
- Request for review by the Procurement Review Board.
- Simplified Acquisition Checklist DL 1-2001.
- Simplified Acquisition DL 2078.
- Department of Labor Form DL 1-2004, Small Business Procurement Determination.
- Simplified Acquisition Terms And Conditions.
The following form must be used by the requisitioning office to submit a request for review by the Procurement Review Board as specified in DOLAR parts 2901 and 2943. This form must be submitted through the Assistant Secretary for the program office to the Director, Division of Acquisition Management Services for scheduling before the PRB. In general, the PRB Start Printed Page 49020meets on the fourth Tuesday of each month when necessary. The PRB requires five (5) business days to examine the form and attachments before the review.
The following checklist must be used to document all simplified acquisitions at or below the simplified acquisition threshold.Start Printed Page 49021
The following form must be used to document all simplified acquisitions above the micro-purchase threshold and below the simplified acquisition threshold. This form may also be used to document commercial acquisitions on a fixed price basis up to $5 million.Start Printed Page 49023
The requiring organization must complete the following form for all acquisitions above the simplified acquisition threshold. This form will then be submitted through the contracting officer to the Office of Small Business Programs for review.Start Printed Page 49025
BILLING CODE 4510-23-P
BILLING CODE 4510-23-P
[FR Doc. 03-20095 Filed 8-14-03; 8:45 am]
BILLING CODE 4510-23-C