Commerce Acquisition Regulation (CAR): Plain Language Rewrite; Proposed Rule, 52542-52610 [E9-22206]

Agencies

• DEPARTMENT OF COMMERCE

[Federal Register Volume 74, Number 196 (Tuesday, October 13, 2009)]
[Proposed Rules]
[Pages 52542-52610]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-22206]



[[Page 52541]]

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Part II





Department of Commerce





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48 CFR Ch. 13



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

Federal Register / Vol. 74, No. 196 / Tuesday, October 13, 2009 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

48 CFR Chapter 13

[Document Number: 080730954-8955-01]
RIN 0605-AA26


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

AGENCY: Department of Commerce.

ACTION: Proposed rule.

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SUMMARY: The Commerce Acquisition Regulation (CAR) was originally 
codified March 30, 1984, and amended by subsequent regulations 
published in the Federal Register. The Department of Commerce (DOC) 
proposes to update the entire CAR through FAC-2005-21. This proposed 
rule will bring the CAR in alignment with the FAR through FAC 2005-21 
and streamline DOC internal policy and guidance.

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

ADDRESSES: Comments may be submitted through any of the following:
     Federal Rulemaking Portal: https://www.Regulations.gov. 
Please follow the instructions for submitting a comment.
     Mail: Virna Evans, U.S. Department of Commerce, Room 1854, 
1401 Constitution Avenue, NW., Washington, DC 20230.
    All comments should indicate that they are submitted in response to 
RIN 0605-AA26.

FOR FURTHER INFORMATION CONTACT: Virna Evans, 202-482-3483.

SUPPLEMENTARY INFORMATION:

Drafting Information

    The Department of Commerce used the FAR version dated November 7, 
2007, updated through FAC 2005-21 and located on the https://farsite.hill.af.mil/ Web site as the reference FAR during development.

Background

    The CAR is the Department of Commerce acquisition regulation that 
implements or supplements the FAR.. The CAR was originally codified 
March 30, 1984 and last updated by Federal Register Notice on September 
12, 1995. The update will bring the CAR in alignment with the FAR 
through FAC 2005-21 and streamline Department of Commerce policies and 
procedures.
    The following is a discussion of common changes made throughout the 
CAR. Various sections of the CAR have been renumbered and/or renamed to 
align with the FAR. Significant information has been added to address 
those instances where the FAR indicates that agency procedures are 
required or instructs the agency to act in accordance with agency 
procedures. Many references to chapters of the Department's internal 
guidance document called Commerce Acquisition Manual, or CAM, have been 
added to provide a relationship between the FAR, the CAR, and DOC 
internal guidance. Information was also added to clarify roles and 
responsibilities across the agency and within the Department of 
Commerce's 5 Operating Units authorized to operate contracting offices 
(National Institute of Standards and Technology (NIST), National 
Oceanic and Atmospheric Administration (NOAA), Office of the Secretary, 
U.S. Census Bureau, and Patent and Trademark Office (PTO)), usually in 
the form of a reference to the CAM outlining delegations of authority. 
In addition, numerous new clauses have been added that correspond to 
new requirements added to the CAR. Finally, the authority citations for 
the CAR have been revised to correspond to current authority. A summary 
of the changes by CAR Part follows.

Part 1301: Department of Commerce Acquisition Regulations System

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

1352.201-70 Contracting Officer's Authority
1352.201-71 Ratification Release
1352.201-72 Contracting Officer's Representative (COR)

Part 1302: Definitions of Words and Terms

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

Part 1303: Improper Business Practices and Personal Conflicts of 
Interest

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

Part 1304: Administrative Matters

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

Part 1305: Publicizing Contract Actions

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

Part 1306: Competition Requirements

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

Part 1307: Acquisition Planning

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

Part 1308: Required Sources of Supplies and Services

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

1352.208-70 Restrictions on Printing and Duplicating

Part 1309: Contractor Qualifications

    We propose to redesignate current section 1309.106-70 Preaward 
surveys for ship construction, ship alteration, and ship repair to Part 
1371 of the CAR, which addresses specialty procurements. We propose to 
add multiple references to CAM 1301.70 that define responsibilities and 
delegations of authority related to qualification requirements, 
debarment, suspension and ineligibility, and organizational and 
consultant conflicts of interest. We propose to remove 1309.470-4,

[[Page 52543]]

Procedures on Debarment and 1309.470-7, Procedures on Suspension, and 
update this information in redesignated Sections 1309.406, Debarment, 
and 1309.407, Suspension. We propose to add Subpart 1309.5, 
Organizational and Consultant Conflicts of Interest to address waivers, 
procedures and the process for addressing organizational conflicts of 
interest (OCI). We also propose to add the following provisions and 
clauses:

1352.209-70 Potential Organizational Conflict of Interest
1352.209-71 Limitation of Future Contracting
1352.209-72 Restrictions Against Disclosure
1352.209-73 Compliance with the Laws
1352.209-74 Organizational Conflict of Interest
1352.209-75 Title 13 and Non-Disclosure Requirements

Part 1311: Describing Agency Needs

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

Part 1312: Acquisition of Commercial Items

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

Part 1313: Simplified Acquisition Procedures

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

1352.213-70 Evaluation Utilizing Simplified Acquisition Procedures
1352.213-71 Instructions for Submitting Quotations Under the 
Simplified Acquisition Threshold--Non- Commercial

Part 1314: Sealed Bidding

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

Part 1315: Contracting by Negotiation

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

1352.215-70 Proposal Preparation
1352.215-71 Instructions for Oral Presentations
1352.215-72 Inquiries
1352.215-73 Evaluation Quantities--Indefinite Quantity Contract
1352.215-74 Best Value Evaluation
1352.215-75 Evaluation Criteria
1352.215-76 Cost or Pricing Data

Part 1316: Types of Contracts

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

1352.216-70 Estimated and Allowable Costs
1352.216-71 Level of Effort (Cost-Plus-Fixed Fee, Term Contract)
1352.216-72 Determination of Award Fee
1352.216-73 Distribution of Award Fee
1352.216-74 Task Orders
1352.216-75 Minimum and Maximum Contract Amounts
1352.216-76 Placement of Orders
1352.216-77 Ceiling Price

Part 1317: Special Contracting Methods

    We propose to revise Part 1317 to include references to CAM 1301.70 
that define responsibilities and delegations of authority. We propose 
housing all specialty procurements in new Part 1370, Universal 
Solicitation Provisions and Contract Clauses. Subpart 1317.70, 
Contracts for Ship Construction, Ship Alteration, and Ship Repair has 
been redesignated as Part 1371, Acquisitions Involving Ship 
Construction and Ship Repair.

Part 1318: Emergency Acquisitions

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

Part 1319: Small Business Programs

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

1352.219-70 Section 8(a) Direct Award (Deviation)
1352.219-71 Notification To Delay Performance (Deviation)
1352.219-72 Notification of Competition Limited to Eligible 8(a) 
Concerns, Alternative III (Deviation)

Part 1322: Application of Labor Laws to Government Acquisitions

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

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

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

[[Page 52544]]

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

Part 1324: Protection of Privacy and Freedom of Information

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

Part 1325: Foreign Acquisition

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

Part 1326: Other Socioeconomic Programs

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

Part 1327: Patents, Data, and Copyrights

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

1352.227-70 Rights in Data, Assignment of Copyright

Part 1328: Bonds and Insurance

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

1352.228-70 Insurance Coverage
1352.228-71 Deductibles Under Required Insurance Coverage--Cost 
Reimbursement
1352.228-72 Deductibles Under Required Insurance Coverage--Fixed 
Price
1352.228-73 Loss of or Damage to Leased Aircraft
1352.228-74 Fair Market Value of Aircraft
1352.228-75 Risk and Indemnities
1352.228-76 Approval of Group Insurance Plans

Part 1329: Taxes

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

Part 1330: Cost Accounting Standards Administration

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

Part 1331: Contract Cost Principles and Procedures

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

1352.231-70 Precontract Costs
1352.231-71 Duplication of Effort

Part 1332: Contract Financing

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

Part 1333: Protests, Disputes, and Appeals

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

1352.233-70 Agency Protests
1352.233-71 GAO and Court of Federal Claims Protests

Part 1334: Major System Acquisition

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

Part 1335: Research and Development Contracting

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

1352.235-70 Protection of Human Subjects
1352.235-71 Protection of Human Subjects--Exemption
1352.235-72 Protection of Human Subjects--Institutional Approval
1352.235-73 Research Involving Human Subjects--After Initial 
Contract Award

Part 1336: Construction and Architect-Engineer Contracts

    We propose to define the acceptable composition of permanent and ad 
hoc architect-engineer evaluation boards, the appropriate means for 
selecting firms for contracts not expected to exceed the simplified 
acquisition threshold, and the appropriate means for designating the 
selection authority.
    We propose to define the designee authorized to make the 
determination described at FAR 36.609-1(c).

Part 1337: Service Contracting

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

1352.237-70 Security Processing Requirements--High or Moderate Risk 
Contracts
1352.237-71 Security Processing Requirements--Low Risk Contracts
1352.237-72 Security Processing Requirements--National Security 
Contracts
1352.237-73 Foreign National Visitor and Guest Access to 
Departmental Resources
1352.237-74 Progress Reports
1352.237-75 Key Personnel

Part 1339: Acquisition of Information Technology

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

1352.239-70 Software License Addendum

[[Page 52545]]

1352.239-71 Electronic and Information Technology
1352.239-72 Security Requirements for Information Technology 
Resources.

Part 1341: Acquisition of Utility Services

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

Part 1342: Contract Administration

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

1352.242-70 Postaward Conference

Part 1344: Subcontracting Policies and Procedures

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

Part 1345: Government Property

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

1352.245-70 Government Furnished Property

Part 1346: Quality Assurance

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

1352.246-70 Place of Acceptance

Part 1348: Value Engineering

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

Part 1349: Termination of Contracts

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

Part 1350: Extraordinary Contractual Actions

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

Part 1352: Solicitation Provisions and Clauses

    We propose to revise Part 1352 in order to reflect currently 
approved provisions and clauses. The clauses we propose to add for each 
CAR Part are identified in the discussion of each CAR Part summary. An 
agency-specific matrix, similar in format and intent to the FAR Part 52 
matrix (See CAR Part 1352.3), is added to assist users identify the 
location of the provision and clause for each prescription in the CAR. 
The changes made to existing CAR provisions and clauses are summarized 
in the table below.

------------------------------------------------------------------------
Existing CAR provision or clause number
               and title                           Action taken
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1352.217-90, Inspection and Manner of    Revised and moved to CAR Part
 Doing Work.                              1371.
1352.217-91, Delivery of Vessel to the   Revised, renamed Delivery and
 Contractor.                              Shifting of the Vessel, and
                                          moved to CAR Part 1371.
1352.217-92, Performance...............  Revised and moved to CAR Part
                                          1371.
1352.217-93, Delays....................  Revised and moved to CAR Part
                                          1371.
1352.217-94, Minimization of Delay Due   Revised and moved to CAR Part
 to Government Furnished Property.        1371.
1352.217-95, Additional Provisions       Removed.
 Relating to Government Property.
1352.217-96, Liability and Insurance...  Revised and moved to CAR Part
                                          1371.
1352.217-97, Title.....................  Revised and moved to CAR Part
                                          1371.
1352.217-98, Discharge of Liens........  Revised and moved to CAR Part
                                          1371.
1352.217-99, Department of Labor         Revised and moved to CAR Part
 Occupational Safety and Health           1371.
 Standards for Ship Repairing.
1352.217-100, Regulations Governing      Removed.
 Asbestos Work.
1352.217-101, Complete and Final         Removed.
 Equitable Adjustments.
1352.217-102, Government Review,         Revised and moved to CAR Part
 Comment, Acceptance, and Approval.       1371.
1352.217-103, Access to the Vessel(s)..  Revised and moved to CAR Part
                                          1371.
1352.217-104, Documentation of Requests  Revised and moved to CAR Part
 for Equitable Adjustment.                1371.
1352.217-105, Change Proposals.........  Removed.
1352.217-106, Lay Days.................  Revised and moved to CAR Part
                                          1371.
1352.217-107, Changes--Ship Repair.....  Revised and moved to CAR Part
                                          1371.
1352.217-108, Default--Ship Repair.....  Removed.
1352.217-109, Insurance Requirements...  Revised and moved to CAR Part
                                          1371.
1352.217-110, Guarantees...............  Revised and moved to CAR Part
                                          1371.
1352.217-111, Temporary Services.......  Revised and moved to CAR Part
                                          1371.
1352.217-112, Self-Insurance             Removed.
 Information.
1352.233.2, Service of Protest.........  Revised and renumbered 1352.233-
                                          70.
------------------------------------------------------------------------

Part 1353: Forms

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

Part 1370: Universal Solicitation Provisions and Contract Clauses

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

1352.270-70 Period of Performance
1352.270-71 Pre-Bid/Pre-Proposal Conference and Site Visit

Part 1371: Acquisitions Involving Ship Construction and Ship Repair

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

[[Page 52546]]

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

1352.271-70 Inspection and Manner of Doing Work
1352.271-71 Method of Payment and Invoicing Instructions for Ship 
Repair
1352.271-72 Additional Item Requirements (AIR)--Growth Work
1352.271-73 Schedule of Work
1352.271-74 Foreseeable Cost Factors Pertaining to Different 
Shipyard Locations
1352.271-75 Delivery and Shifting of the Vessel
1352.271-76 Performance
1352.271-77 Delays
1352.271-78 Minimization of Delay Due to Government Furnished 
Property
1352.271-79 Liability and Insurance
1352.271-80 Title
1352.271-81 Discharge of Liens
1352.271-82 Department of Labor Occupational Safety and Health 
Standards for Ship Repair
1352.271-83 Government Review, Comment, Acceptance and Approval
1352.271-84 Access to the Vessel
1352.271-85 Documentation of Requests for Equitable Adjustment
1352.271-86 Lay Days
1352.271-87 Changes--Ship Repair
1352.271-88 Guarantees
1352.271-89 Temporary Services
1352.271-90 Insurance Requirements

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866, Regulatory Planning and Review.
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996), whenever an agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions), unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. The Regulatory Flexibility Act 
requires Federal agencies to provide a statement of the factual basis 
for certifying that a rule will not have a significant economic impact 
on a substantial number of small entities.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation certified to the Chief Counsel for Advocacy of the Small 
Business Administration that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
The rule would update the Commerce Acquisition Regulations; it does not 
directly regulate any small entities. As a result, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.
    This rule does not impose any new information collections subject 
to review and approval by OMB under the Paperwork Reduction Act. 
Notwithstanding any other provision of the law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of PRA, unless that collection of information displays a currently 
valid OMB control number.

List of Subjects

48 CFR Part 1301

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

48 CFR Part 1302

    Definitions, Government procurement, Terms.

48 CFR Part 1303

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

48 CFR Part 1304

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

48 CFR Part 1305

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1306

    Government procurement, Justifications, Sole source acquisitions.

48 CFR Part 1307

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

48 CFR Part 1308

    Government procurement, Printing.

48 CFR Part 1309

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

48 CFR Part 1311

    Government procurement, Liquidated damages, Market acceptance.

48 CFR Part 1312

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

48 CFR Part 1313

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

48 CFR Part 1314

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

48 CFR Part 1315

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

48 CFR Part 1316

    Government procurement, Ombudsman.

48 CFR Part 1317

    Multi-year contract, Congressional notification, Interagency 
agreement.

48 CFR Part 1318

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

48 CFR Part 1319

    Partnership agreement, Set aside, Small business, SBA.

48 CFR Part 1322

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

48 CFR Part 1323

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

48 CFR Part 1324

    Freedom of Information, Government procurement, privacy.

48 CFR Part 1325

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

48 CFR Part 1326

    Disaster assistance, Government procurement.

[[Page 52547]]

48 CFR Part 1327

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

48 CFR Part 1328

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

48 CFR Part 1329

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

48 CFR Part 1330

    Accounting, Government procurement, Reporting and recordkeeping 
requirements.

48 CFR Part 1331

    Accounting, Government procurement, Reporting and recordkeeping 
requirements.

48 CFR Part 1332

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

48 CFR Part 1333

    Administrative practice and procedure, Claims, Government 
procurement.

48 CFR Part 1334

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

48 CFR Part 1335

    FFRDC, Human subject.

48 CFR Part 1336

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

48 CFR Part 1337

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

48 CFR Part 1339

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

48 CFR Part 1341

    Government procurement, Reporting and recordkeeping requirements, 
Utilities.

48 CFR Part 1342

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

48 CFR Part 1344

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1345

    Government procurement, Government property, Reporting and 
recordkeeping requirements.

48 CFR Part 1346

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

48 CFR Part 1347

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

48 CFR Part 1348

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

48 CFR Part 1349

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

48 CFR Part 1350

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

48 CFR Part 1352

    Government procurement, Matrix, Reporting and recordkeeping 
requirements.

48 CFR Part 1353

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 1370

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

48 CFR Part 1371

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

    Dated: September 4, 2009.
John F. Charles,
Deputy Assistant Secretary for Administration.
    For the reasons stated in the preamble, the Department of Commerce 
proposes to revise 48 CFR Chapter 13 to read as follows:

CHAPTER 13--DEPARTMENT OF COMMERCE

SUBCHAPTER A--GENERAL

Part

1301 Department of Commerce Acquisition Regulations System.
1302 Definitions of words and terms.
1303 Improper business practices and personal conflicts of interest.
1304 Administration matters.

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

1305 Publicizing contact actions.
1306 Competition requirements.
1307 Acquisition planning.
1308 Required sources of supplies and services.
1309 Contractor qualifications.
1311 Describing agency needs.
1312 Acquisition of commercial items.

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

1313 Simplified acquisition procedures.
1314 Sealed bidding.
1315 Contracting by negotiation.
1316 Types of contracts.
1317 Special contracting methods.
1318 Emergency acquisitions.

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

1319 Small business programs.
1322 Application of labor laws to government acquisitions.
1323 Environment, energy and water efficiency, renewable energy 
technologies, occupational safety, and drug-free workplace.
1324 Protection of privacy and freedom of information.
1325 Foreign acquisition.
1326 Other socioeconomic programs.

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

1327 Patents, data, and copyrights.
1328 Bonds and insurance.
1329 Taxes.
1330 Cost accounting standards administration.
1331 Contract cost principles and procedures.
1332 Contract financing.
1333 Protests, disputes, and appeals.

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

1334 Major system acquisition.
1335 Research and development contracting.
1336 Construction and architect-engineer contracts.
1337 Service contracting.
1339 Acquisition of information technology.
1341 Acquisition of utility services.

SUBCHAPTER G--CONTRACT MANAGEMENT

1342 Contract administration.
1344 Subcontracting policies and procedures.
1345 Government property.
1346 Quality assurance.
1348 Value engineering.
1349 Termination of contracts.
1350 Extraordinary contractual actions.

SUBCHAPTER H--CLAUSES AND FORMS

1352 Solicitation provisions and contract clauses.
1353 Forms.

[[Page 52548]]

SUBCHAPTER I--DEPARTMENT SUPPLEMENTAL REGULATIONS

1370 Universal solicitation provisions and contract clauses.
1371 Acquisitions involving ship construction and ship repair.

Subchapter A--General

PART 1301--DEPARTMENT OF COMMERCE ACQUISITION REGULATIONS SYSTEM

Sec.

1301.000 Scope of part.

Subpart 1301.1--Purpose, Authority, Issuance

1301.101 Purpose.
1301.103 Authority.
1301.104 Applicability.
1301.105 Issuance.
1301.105-1 Publication and code arrangement.
1301.105-2 Arrangement of regulations.
1301.105-3 Copies.

Subpart 1301.3--Agency Acquisition Regulations

1301.301 Policy.
1301.303 Publication and codification.
1301.304 Agency control and compliance procedures.

Subpart 1301.4--Deviations From the FAR

1301.403 Individual deviations.
1301.404 Class deviations.

Subpart 1301.6--Career Development, Contracting Authority, and 
Responsibilities

1301.601 General.
1301.602 Contracting officers.
1301.602-1 Authority.
1301.602-170 Provisions and clauses.
1301.602-3 Ratification of unauthorized commitments.
1301.602-370 Ratification approval by Procurement Counsel.
1301.603 Selection, appointment, and termination of appointment.
1301.603-1 General.
1301.603-2 Selection.
1301.603-3 Appointment.
1301.603-4 Termination.
1301.670 Appointment of contracting officer's representative (COR).
1301.670-70 Provisions and clauses.
1301.671 Assignment of program and project managers.

Subpart 1301.7--Determinations and Findings

1301.707 Signatory authority.

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


1301.000  Scope of part.

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

Subpart 1301.1--Purpose, Authority, Issuance


1301.101  Purpose.

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


1301.103  Authority.

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


1301.104  Applicability.

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


1301.105  Issuance.


1301.105-1  Publication and Code Arrangement.

    (a) The CAR is published in the Federal Register, in cumulative 
form in the Code of Federal Regulations (CFR), and is available online 
at the U.S. Department of Commerce, Office of Acquisition Management 
Web site.
    (b) The CAR is issued as Chapter 13 of Title 48 of the CFR.


1301.105-2  Arrangement of regulations.

    (a) General. The CAR is divided into the same parts, subparts, 
sections, and subsections as the FAR.
    (b) Numbering. If the DOC does not have supplemental regulations 
there will be no corresponding coverage in the CAR, and there will be 
gaps in the CAR numbering system.


1301.105-3  Copies.

    (a) Copies of the CAR in Federal Register or CFR form may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.
    (b) The CAR is available online at the U.S. Department of Commerce, 
Office of Acquisition Management Web site.

Subpart 1301.3--Agency Acquisition Regulations


1301.301  Policy.

    (a) The designee authorized to prescribe the CAR is set forth in 
the Commerce Acquisition Manual (CAM) 1301.70.
    (b) The DOC internal operating guidance and procedures are 
contained in the CAM and other policy guidance documents issued by the 
Procurement Executive relating to acquisitions. The DOC Contracting 
Offices may issue additional guidance and procedures.


1301.303  Publication and codification.

    (a) The CAR parallels the FAR in format, arrangement and numbering 
system. Coverage within the CAR is identified by the prefix ``13'' or 
``130'' followed by the complete FAR citation to the subsection level 
(e.g., CAR coverage of FAR 1.602-1 is cited as 1301.602-1).
    (b) Supplementary material without a FAR counterpart will be 
codified using 70 and up as appropriate for the part, subpart, section, 
or subsection number (e.g., Part 1370, subpart 1301.70, section 
1301.370 or subsection 1301.301-70).


1301.304  Agency control and compliance procedures.

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

Subpart 1301.4--Deviations From the FAR


1301.403  Individual deviations.

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


1301.404  Class deviations.

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

Subpart 1301.6--Career Development, Contracting Authority, and 
Responsibilities


1301.601  General.

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

[[Page 52549]]

1301.602  Contracting officers.


1301.602-1  Authority.

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


1301.602-170  Provisions and clauses.

    Insert clause 1352.201-70, Contracting Officer's Authority, in all 
solicitations and contracts.


1301.602-3  Ratification of unauthorized commitments.

    (a) Insert clause 1352.201-71, Ratification Release, in a contract 
document under which payment is made for unauthorized commitments after 
a ratification has been processed.
    (b)(1) Unauthorized commitments occur when the Department accepts 
goods or services in the absence of an enforceable contract entered 
into by an authorized official. It is the policy of DOC that all 
acquisitions are to be made only by Government officials having 
authority to make such acquisitions. Acquisitions made by other than 
authorized personnel are contrary to Departmental policy and the 
Department is not bound by any formal or informal type of agreement or 
contractual commitment which is made by persons who are not delegated 
contracting authority. Payment for goods or services accepted in the 
absence of an authorized commitment may be made only through the 
ratification process. Unauthorized commitments may be considered 
matters of serious misconduct and may subject the responsible employees 
to appropriate disciplinary actions.
    (2) The delegation of the ratification authority is set forth in 
CAM 1301.70. All requests for ratification must fully explain the 
circumstances that gave rise to the unauthorized commitment and detail, 
if appropriate, any disciplinary action taken with respect to any 
responsible employee. Ratifications may be approved only if all 
criteria in FAR 1.602-3 have been met.


1301-602-370  Ratification approval by Procurement Counsel.

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


1301.603  Selection, appointment, and termination of appointment.


1301.603-1  General.

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


1301.603-2  Selection.

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


1301.603-3  Appointment.

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


1301.603-4  Termination.

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


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

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


1301.670-70  Provisions and clauses.

    Insert clause 1352.201-72, Contracting Officer's Representative 
(COR), in all solicitations and contracts where a COR will be 
appointed.


1301.671   Assignment of program and project managers.

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

Subpart 1301.7--Determinations and Findings


1301.707   Signatory authority.

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

PART 1302--DEFINTIONS OF WORDS AND TERMS

Subpart 1302.1--Definitions
Sec.
1302.101 Definitions.
1302.170 Abbreviations.

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

Subpart 1302.1--Definitions


1302.101   Definitions.

    Accountable Personal Property means all personal property for which 
responsibility for control is formally assigned to an individual, and 
official property records are maintained as set forth in DOC PPMM 
Chapter 4.
    Agency Head (or Head of Agency) (HA) means the Secretary of 
Commerce, except, pursuant to Department Organization Order (DOO) 10-5, 
Chief Financial Officer and Assistant Secretary for Administration, the 
head of the agency for procurement matters shall be the Chief Financial 
Officer and Assistant Secretary for Administration (CFO/ASA), unless a 
statute provides that the authority of the Secretary is non-delegable.
    Chief Acquisition Officer (CAO) means the Department's executive-
level non-career employee designated pursuant to the Services 
Acquisition Reform Act to advise and assist the head of the agency and 
other agency officials to ensure the mission of the agency is achieved 
through the management of the agency's acquisition activities. The CFO/
ASA has been designated by the Head of the Agency as the Chief 
Acquisition Officer for the Department of Commerce.
    Civilian Agency Acquisition Council (CAAC) means the council that 
assists the Administrator of General Services in developing and 
maintaining the Federal Acquisition Regulation (FAR) System by 
developing or reviewing all proposed changes to the FAR. The Council is 
comprised of a representative designated by each of several Federal 
departments and agencies, including the DOC. The CAAC coordinates its 
activities with the Defense Acquisition Regulations Council (DARC). The 
CAAC is authorized under 48 CFR 1.2.
    Commerce Acquisition Manual (CAM) means non-regulatory uniform 
policies and procedures for internal operations associated with 
acquiring supplies and services within the Department that implements 
and supplements the FAR and CAR.
    Commerce Acquisition Regulation (CAR) means uniform acquisition 
policies and procedures, which implement and supplement the FAR.
    Contracting Activity means the operating units identified under the 
definition of ``Operating Units'' below. Contracting activities may or 
may not have authority to operate contracting offices (see definition 
for Contracting Office).
    Contracting Office means an office that awards or executes 
contracts for supplies or services and performs post-

[[Page 52550]]

award functions. The operating units authorized to operate contracting 
offices are identified in DAO 208-2.
    Contracting Officer means an individual designated authority by the 
Senior Bureau Procurement Official (BPO) to enter into, administer, 
and/or terminate contracts and make related determinations and 
findings. Only those individuals who have been certified as contracting 
officers, through the issuance of a Certificate of Appointment 
(Contracting Officer Warrant (SF 1402)), by the BPO in accordance with 
the requirements and procedures of the CAR and the CAM may exercise the 
authorities of contracting officers. However, by virtue of their 
positions, the Head of the Agency, the Procurement Executive, and the 
Heads of Operating Units are also designated as contracting officers.
    Department or Departmental or DOC means the Department of Commerce.
    Head of Agency (HA)--see definition for ``Agency Head.''
    Head of Contracting Office (HCO) means those individuals designated 
by the BPO to head the contracting offices within each operating unit 
that has designated contracting authority to award and administer 
contracts. In performing their duties, HCOs are empowered to the full 
limits of the Department's contracting authority. The HCO must be a 
procurement professional in the GS-1102 occupational series (or 
equivalent OPM occupational designation). BPOs will issue each HCO a 
Contracting Officer Warrant that delegates the authority to enter into, 
administer, and/or terminate contracts and to make related 
determinations and findings.
    Head of the Contracting Activity (HCA) means, for purposes of 
delegation of contracting authority, officials who are designated as 
Heads of Operating Units (those who are assigned by the President or by 
the Secretary to manage the primary or constituent operating units of 
the DOC) in orders establishing the respective operating units, with 
the exception of the Office of the Secretary. Such officials are 
designated as the HCA for procurements initiated in support of the 
procurement activities of that operating unit. The Chief Financial 
Officer and Assistant Secretary for Administration has been designated 
as the HCA for procurements initiated in support of the programs and 
activities of the Office of the Secretary and all other Secretarial 
Offices and Departmental Offices.
    Office of Small and Disadvantaged Business Utilization (OSDBU), The 
means the advocacy and advisory office responsible for promoting the 
use of small, small disadvantaged, 8(a), women-owned, veteran-owned, 
service-disabled veteran-owned, and HUBZone small businesses within the 
Department acquisition process.
    Office of the Assistant General Counsel for Administration, 
Employment & Labor Law Division means the Department Legal Office that 
provides advice and guidance to management regarding employment and 
labor law issues, including the legal standards for taking adverse and 
performance-based actions.
    Office of the Assistant General Counsel for Administration, Ethics 
Law and Program Division means the Department Legal Office that 
provides advice and guidance regarding conflict of interest statutes, 
ethics regulations, and related laws.
    Operating Units are organizational entities outside the Office of 
the Secretary charged with carrying out specified substantive functions 
(i.e., programs) of the Department and are identified in DAO 208-2.
    Procurement Counsel means, except for the Patent and Trademark 
Office (PTO), the Office of the Assistant General Counsel for Finance & 
Litigation, Contract Law Division, the office responsible for providing 
legal review of applicable contract actions and procurement legal 
advice to all operating units, and handling procurement-related 
litigation. ``Procurement Counsel'' for all PTO procurement-related 
actions means Office of General Law.
    Procurement Executive (or Senior Procurement Executive (PE)) means 
the official appointed pursuant to Executive Order 12931 and the 
Services Acquisition Reform Act of 2003 to carry out the 
responsibilities identified in both the Executive Order and the Act. 
The Director for Acquisition Management is the Procurement Executive 
for the Department of Commerce.
    Senior Bureau Procurement Official (BPO) means the senior career 
procurement official, within each operating unit that has been 
delegated contracting authority, who is designated as the Senior Bureau 
Procurement Official. The BPO must be a procurement professional who 
has both experience and training in the area of Federal procurement and 
contracting. HCAs may designate one BPO within their organization to 
carry out the day-to-day functions of managing the contracting 
activity. BPOs may also serve as the Head of Contracting Office. The 
Procurement Executive will issue each BPO a Contracting Officer Warrant 
which delegates the authority to enter into, administer, and/or 
terminate contracts and to make related determinations and findings.


1302.170   Abbreviations.

AIR Additional Item Requirements
BPO Senior Bureau Procurement Official
CAAC Civilian Agency Acquisition Council
CAM Commerce Acquisition Manual
CAO Chief Acquisition Officer
CAR Commerce Acquisition Regulation
CFO/ASA Chief Financial Officer/Assistant Secretary for Administration
CFR Code of Federal Regulations
CO Contracting Officer
COR Contracting Officer's Representative
DAO Departmental Administrative Order
DOC Department of Commerce
DOO Departmental Organizational Order
D&F Determination and Findings
EVMS Earned Value Management System
FAR Federal Acquisition Regulation
HCA Head of Contracting Activity
HCO Head of Contracting Office
IRB Institutional Review Board
JOFOC Justification for Other than Full and Open Competition
NIST National Institute of Standards and Technology
NOAA National Oceanic and Atmospheric Administration
OCI Organizational Conflict of Interest
OCIO Office of the Chief Information Officer
OFPP Office of Federal Procurement Policy
OIG Office of Inspector General
OMB Office of Management and Budget
OS Office of the Secretary
OSDBU Office of Small and Disadvantaged Business Utilization
PE Procurement Executive
PTO Patent and Trademark Office
RFP Request for Proposals
SBA Small Business Administration
OU Operating Unit

PART 1303--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

Subpart 1303.1--Safeguards
Sec.
1303.101 Standards of conduct.
1303.101-2 Solicitation and acceptance of gratuities by government 
personnel.
1303.101-3 Agency regulations.
1303.104 Procurement integrity.
1303.104-4 Disclosure, protection and marking of contractor bid or 
proposal information and source selection information.

[[Page 52551]]

1303.104-7 Violations or possible violations.
Subpart 1303.2--Contractor Gratuities to Government Personnel
1303.203 Reporting suspected violations of the gratuities clause.
1303.204 Treatment of violations.
Subpart 1303.3--Reports of Suspected Antitrust Violations.
1303.303 Reporting suspected antitrust violations.
Subpart 1303.4--Contingent Fees.
1303.405 Misrepresentations or violations of the covenant against 
contingent fees.
Subpart 1303.5--Other Improper Business Practices.
1303.502 Subcontractor kickbacks.
1303.502-2 Subcontractor kickbacks.
Subpart 1303.6--Contracts With Government Employees or Organizations 
Owned or Controlled by Them.
1303.602 Exceptions.
Subpart 1303.7--Voiding and Rescinding Contracts.
1303.704 Policy.
1303.705 Procedures.
Subpart 1303.8--Limitation on the Payment of Funds To Influence Federal 
Transactions.
1303.804 Policy.
1303.806 Processing suspected violations.
Subpart 1303.9--Whistleblower Protections for Contractor Employees.
1303.905 Procedures for investigating complaints.
1303.906 Remedies.

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

Subpart 1303.1--Safeguards


1303.101   Standards of conduct.


1303.101-2   Solicitation and acceptance of gratuities by government 
personnel.

    (a) Suspected violations of the prohibition on soliciting and 
accepting gratuities shall be reported to the Office of the Inspector 
General in accordance with DAO 207-10, Inspector General 
Investigations.
    (b) To obtain legal advice regarding the solicitation and 
acceptance of gratuities, contact the Office of the Assistant General 
Counsel for Administration, Ethics Law and Program Division.


1303.101-3   Agency regulations.

    The Department has issued rules implementing Executive Order 11222 
prescribing employee standards of conduct (see DOC Office of General 
Counsel Web site).


1303.104  Procurement integrity.


1303.104-4   Disclosure, protection and marking of contractor bid or 
proposal information and source selection information.

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


1303.104-7   Violations or possible violations.

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

Subpart 1303.2--Contractor Gratuities to Government Personnel


1303.203   Reporting suspected violations of the gratuities clause.

    Suspected violations of the Gratuities clause shall be reported to 
the HCA in writing detailing the circumstances. The report must 
identify the contractor and personnel involved, provide a summary of 
the pertinent evidence and circumstances that indicate a violation, and 
include any other available supporting documentation. The HCA will 
evaluate the report, and, if the allegations appear to support a 
violation, the matter will be referred to the Head of Contracting 
Office with copies provided to the Senior Procurement Executive and the 
DOC Office of Inspector General. See DAO 207-10 for procedures.


1303.204   Treatment of violations.

    (a) The designee authorized to determine violations of the 
Gratuities clause is set forth in CAM 1301.70.
    (b) Upon receipt of an allegation or evidence of a violation of the 
Gratuities clause, the designee shall conduct a fact-finding. If there 
is a basis for further action, a signed notice shall be prepared and 
sent to the contractor by certified mail, return receipt requested, or 
any other method that provides signed evidence of receipt. If a reply 
is not received from the contractor within 45 calendar days of sending 
the notice, a decision shall be made on the appropriate action to be 
taken. If a reply is received from the contractor within 45 calendar 
days of sending the notice, the information in the reply must be 
considered before making a decision on the appropriate action to be 
taken. Upon request of the contractor, the contractor shall be provided 
an opportunity to appear in person to present information concerning 
the matter. A report shall be prepared following the presentation and 
the information must be considered when making a decision. A decision 
shall be made on the basis of all information available, including 
findings of fact and oral or written information submitted by the 
contractor. All mitigating factors shall be considered prior to making 
a final decision concerning what action will be taken.

Subpart 1303.3--Reports of Suspected Antitrust Violations


1303.303   Reporting suspected antitrust violations.

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

Subpart 1303.4--Contingent Fees


1303.405   Misrepresentations or violations of the covenant against 
contingent fees.

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

Subpart 1303.5--Other Improper Business Practices


1303.502   Subcontractor kickbacks.


1303.502-2  Subcontractor kickbacks.

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

[[Page 52552]]

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


1303.602   Exceptions.

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

Subpart 1303.7--Voiding and Rescinding Contracts


1303.704  Policy.

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


1303.705   Procedures.

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

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


1303.804   Policy.

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


1303.806   Processing suspected violations.

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

Subpart 1303.9--Whistleblower Protections for Contractor Employees


1303.905   Procedures for investigating complaints.

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


1303.906  Remedies.

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

PART 1304--ADMINISTRATIVE MATTERS

Subpart 1304.2--Contract Distribution
Sec.
1304.201 Procedures.
1304.201-70 Accountable personal property.
Subpart 1304.6--Contract Reporting
1304.602 General.
1304.602-70 Federal Procurement Data System.
Subpart 1304.8--Government Contract Files
1304.804 Closeout of contract files.
1304.804-70 Contract closeout procedures.
1304.805 Storage, handling, and disposal of contract files.
1304.805-70 Storage, handling, and disposal of contrac