Commerce Acquisition Regulation (CAR), 10568-10628 [2010-4132]

Agencies

• DEPARTMENT OF COMMERCE

[Federal Register Volume 75, Number 44 (Monday, March 8, 2010)]
[Rules and Regulations]
[Pages 10568-10628]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4132]



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Part II





Department of Commerce





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48 CFR Chapter 13



Commerce Acquisition Regulation (CAR); Final Rule

Federal Register / Vol. 75, No. 44 / Monday, March 8, 2010 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

48 CFR Chapter 13

[Document No. 080730954-0033-02]
RIN 0605-AA26


Commerce Acquisition Regulation (CAR)

AGENCY: Department of Commerce (DOC).

ACTION: Final rule.

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SUMMARY: We, the Department of Commerce, issue a final rule to bring 
the Commerce Acquisition Regulation in alignment with the Federal 
Acquisition Regulation (FAR) and to streamline DOC's internal policy 
and guidance. This final rule updates the entire CAR through FAC 2005-
21.

DATES: This rule is effective April 7, 2010.

ADDRESSES: The final rule is available on the DOC Web site https://www.doc.gov, or https://www.regulations.gov, or by contacting the 
Department of Commerce: Room 1854, 1401 Constitution Avenue, NW., 
Washington, DC 20230.

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

SUPPLEMENTARY INFORMATION: 

Background

    The Department of Commerce implements or supplements the Federal 
Acquisition Regulations through its own regulations codified in 48 CFR 
Chapter 13. Collectively, these regulations are known as the Commerce 
Acquisition Regulation (CAR). The CAR was originally codified on March 
30, 1984 and last updated on September 12, 1995 through a final rule 
published in the Federal Register. The Department of Commerce publishes 
this action to update the CAR to bring the Department of Commerce's 
policies and procedures in alignment with the FAR through FAC 2005-21. 
The following is a summary of the overall changes made to the CAR.
    The Department amends the CAR to update the regulations since its 
last revision on September 12, 1995. In order to bring the CAR in 
alignment with the current provisions of the FAR, the Department added 
several new provisions to address those instances where the FAR 
indicates that agency procedures are required or need to be developed, 
as well as provisions to define roles and responsibilities and provide 
guidance on Department's policy and procedures for accountable personal 
property, inherently governmental functions, emergency acquisitions, 
small business programs, environmental programs, foreign acquisitions, 
contract financing, protests, disputes, and appeals, major system 
acquisitions, research and development contracting, security 
processing, value engineering, and termination of contracts. Moreover, 
the Department added numerous new clauses that correspond to the new 
procedural requirements added to the CAR.
    In making the updates referenced in this final rule, various 
sections of the CAR have been renumbered and/or renamed to align with 
the current structure of the FAR. This amendment facilitates readers in 
locating the corresponding FAR section in the CAR. In addition, the 
Department added many references to chapters of the Commerce 
Acquisition Manual (CAM) to provide further information on the 
delegation of authority for a specific provision. In particular, the 
references to the CAM help clarify the 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)). Finally, the authority citations 
for the CAR have been revised to correspond to current authority.
    For a detailed description of the changes by CAR Part, see the 
proposed rule published on October 13, 2009 in the Federal Register (74 
FR 52541). The document is also available at https://www.Regulations.gov 
under Docket Number: DOC-2009-0003-0001.

Request for Comments

    On October 13, 2009, the Department published and requested public 
comments on the proposed changes to the CAR. The comment period lasted 
between October 13, 2009-December 14, 2009. No comments were received 
from the public during this period. Therefore, the Department adopts 
without change, the regulations as proposed on October 13, 2009.

Classification

    Executive Order 12866: This rule has been determined to be not 
significant for purposes of Executive Order 12866, Regulatory Planning 
and Review.
    Regulatory Flexibility Act: 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 the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification was published with the 
proposed rule. No comments were received regarding the economic impact 
of this rule. As a result, a Final Regulatory Flexibility Analysis is 
not required.
    Paperwork Reduction Act: 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.

[[Page 10569]]

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.

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 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.

[[Page 10570]]

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: February 22, 2010.
John F. Charles,
Deputy Assistant Secretary for Administration.

0
For the reasons stated in the preamble, the Department of Commerce 
revises 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 Administrative 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.

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.

[[Page 10571]]

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 (https://oam.ocs.doc.gov).

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.


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.

[[Page 10572]]

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-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.

[[Page 10573]]

    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.
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

[[Page 10574]]

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.

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 contract files.
Subpart 1304.13--Personal Identity Verification
1304.1301 Policy.

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

Subpart 1304.2--Contract Distribution


1301.201  Procedures.


1304.201-70  Accountable personal property.

    Provide one copy of all contracts and purchase orders for 
accountable personal property to the appropriate Departmental property 
management office(s) for inclusion in the Department's personal 
property system in accordance with the DOC Personal Property Management 
Manual. Accountable personal property purchased with a Governmentwide 
commercial purchase card is also to be reported to the property 
management office.

Subpart 1304.6--Contract Reporting


1304.602  General.


1304.602-70  Federal Procurement Data System.

    Departmental Federal Procurement Data System reporting procedures 
are set forth in CAM 1304.602.

Subpart 1304.8--Government Contract Files


1304.804  Closeout of contract files.


1304.804-70  Contract closeout procedures.

    CAM 1304.804 supplements FAR 4.804 with the Department's contract 
closeout procedures.

[[Page 10575]]

1304.805  Storage, handling, and disposal of contract files.


1304.805-70  Storage, handling, and disposal of contract files.

    CAM 1304.804 supplements FAR 4.805 with the Department's procedures 
for storage, handling, and disposal of contract files.

Subpart 1304.13--Personal Identity Verification


1304.1301  Policy.

    (a) Implementation of Federal Information Processing Standards 
Publication (FIPS PUB) 201 and OMB guidance M-05-24 is set forth in DOC 
Personal Identify Verification (PIV) Implementation Guidance, which is 
available on the Office of Security Web site.
    (b) The DOC official responsible for verifying contractor employee 
personal identity is set forth in the DOC Personal Identify 
Verification (PIV) Implementation Guidance.

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 1305--PUBLICIZING CONTRACT ACTIONS

Subpart 1305.2--Synopses of Proposed Contract Actions.
Sec.
1305.202 Exceptions.
Subpart 1305.4--Release of Information
1305.403 Requests from Members of Congress.
1305.404 Release of long range acquisition estimates.
1305.404-1 Release procedures.
Subpart 1305.5--Paid Advertisements
1305.502 Authority.

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

Subpart 1305.2--Synopses of Proposed Contract Actions


1305.202  Exceptions.

    The designee authorized to decide, in writing, that advance notice 
through the GPE (Governmentwide Point of Entry) is not appropriate or 
reasonable is set forth in CAM 1301.70.

Subpart 1305.4--Release of Information


1305.403  Requests from Members of Congress.

    Requests from Members of Congress shall be handled in accordance 
with the policies and procedures outlined in DAO 218-2.


1305.404  Release of long-range acquisition estimates.


1305.404-1  Release procedures.

    The designee authorized to release long-range acquisition estimates 
is set forth in CAM 1301.70.

Subpart 1305.5--Paid Advertisements


1305.502  Authority.

    The designee authorized to provide authorization for publication of 
paid advertisements in newspapers is set forth in CAM 1301.70. The 
contracting officer shall obtain written authorization from the 
designee.

PART 1306--COMPETITION REQUIREMENTS

Subpart 1306.2--Full and Open Competition after Exclusion of Sources
Sec.
1306.202 Establishing or maintaining alternative sources.
Subpart 1306.3--Other Than Full and Open Competition
1306.302 Circumstances permitting other than full and open 
competition.
1306.302-5 Authorized or required by statute.
1306.303 Justification.
1306.303-70 Documentation and legal review of justifications.
1306.304 Approval of the justification.
Subpart 1306.5--Competition Advocates
1306.501 Requirement.

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

Subpart 1306.2--Full and Open Competition After Exclusion of 
Sources


1306.202  Establishing or maintaining alternative sources.

    The authority to exclude a source from a contract action in order 
to establish or maintain an alternate source is set forth in CAM 
1301.70

Subpart 1306.3--Other Than Full and Open Competition


1306.302  Circumstances permitting other than full and open 
competition.


1306.302-5  Authorized or required by statute.

    In accordance with Executive Order 13457, a sole source acquisition 
may not be justified on the basis of any earmark included in any non-
statutory source, except when otherwise required by law or when an 
earmark meets the criteria for funding set out in Executive Order 
13457.


1306.303  Justifications.


1306.303-70  Documentation and legal review of justifications.

    The justification for providing for other than full and open 
competition in accordance with FAR 6.303-2 shall be provided on Form 
CD-492, Justification for Other than Full and Open Competition. If the 
estimated value of the procurement is over legal review thresholds, 
concurrence by the Procurement Counsel is required.


1306.304  Approval of the justification.

    The designee authorized to approve justifications for other than 
full and open competition at the dollar thresholds in FAR 6.304 is set 
forth in CAM 1301.70.

Subpart 1306.5--Competition Advocates


1306.501  Requirement.

    The designee authorized to designate a Competition Advocate for the 
Department and each procuring activity is set forth in CAM 1301.70.

PART 1307--ACQUISITION PLANNING

Subpart 1307.1--Acquisition Plans
Sec.
1307.102 Policy.
1307.103 Agency head responsibilities.
1307.105 Contents of written acquisition plans.
Subpart 1307.3--Contractor versus Government Performance
1307.302 Policy.
Subpart 1307.5--Inherently Governmental Functions
1307.503 Policy.

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

Subpart 1307.1--Acquisition Plans


1307.102  Policy.

    In accordance with FAR 7.102, it is the Department's policy to 
perform acquisition planning and conduct market research in order to 
promote the acquisition of commercial items and provide for full and 
open competition.


1307.103  Agency-head responsibilities.

    The designee authorized as responsible for compliance with FAR 
7.103 is set forth in CAM 1301.70.


1307.105  Contents of written acquisition plans.

    Information on the contents of Acquisition Plans is set forth in 
CAM 1307.1

[[Page 10576]]

Subpart 1307.3--Contractor versus Government Performance


1307.302  Policy.

    The Department's competitive sourcing policy and procedures are set 
forth in CAM 1307.370.

Subpart 1307.5--Inherently Governmental Functions


1307.503  Policy.

    All procurement request packages submitted by program offices to 
initiate a procurement action for services shall contain a written 
determination by the designated requirements official that affirms that 
none of the functions to be performed in the statement of work are 
inherently governmental. This policy applies to all services other than 
personal services issued under statutory authority. If the contracting 
officer determines that there are substantial questions whether the 
work statement involves performance of inherently governmental 
functions, the contracting officer shall submit the matter for review 
by Procurement Counsel. Disagreements regarding the determination shall 
be resolved by the Head of Contracting Office (HCO) after consultation 
with counsel.

PART 1308--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 1308.8--Acquisition of Printing and Related Supplies
Sec.
1308.802 Policy.
1308.802-70 Printing.

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

Subpart 1308.8--Acquisition of Printing and Related Supplies


1308.802  Policy.

    The designee authorized as the Department's central printing 
authority is set forth in CAM 1301.70.


1308.802-70  Printing.

    Insert clause 1352.208-70, Restrictions on Printing and 
Duplicating, in all solicitations and contracts when printing documents 
may be required in the performance of the contract.

PART 1309--CONTRACTOR QUALIFICATIONS

Subpart 1309.2--Qualifications Requirements
Sec.
1309.202 Policy.
1309.206 Acquisitions subject to qualification requirements.
1309.206-1 General.
Subpart 1309.4--Debarment, Suspension, and Ineligibility
1309.403 Definitions.
1309.405 Effect of listing.
1309.405-1 Continuation of current contracts.
1309.405-2 Restrictions on subcontracting.
1309.406 Debarment.
1309.406-1 General.
1309.406-3 Procedures.
1309.407 Suspension.
1309.407-1 General.
1309.407-3 Procedures.
Subpart 1309.5--Organizational and Consultant Conflicts of Interest
1309.503 Waiver.
1309.503-70 Waiver.
1309.506 Procedures.
1309.507 Solicitation provisions and contract clauses.
1309.507-1 Solicitation provisions.
1309.507-2 Contract clauses.

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

Subpart 1309.2--Qualifications Requirements


1309.202  Policy.

    (a) The designee authorized to establish qualification requirements 
is set forth in CAM 1301.70.
    (b) The designee authorized to waive the requirements of FAR 9.202 
(a)(1)(ii) through (4) for up to 2 years with respect to the item 
subject to the qualification requirement is set forth in CAM 1301.70. 
This waiver authority does not apply to the qualification requirements 
contained in a qualified product list, qualified manufacturer list, or 
qualification bidders list.
    (c) The designee authorized to approve proceeding with a 
procurement, rather than delay the award in order to provide a 
potential offeror an opportunity to demonstrate its ability to meet the 
standards specified in the qualifications, is set forth in CAM 1301.70.


1309.206  Acquisitions subject to qualification requirements.


1309.206-1  General.

    When the designee authorized in CAM 1301.70 determines that an 
emergency exists, or elects before or after award not to enforce a 
qualification requirement it had established, the qualification 
requirement may not be thereafter enforced unless the agency complies 
with FAR 9.202(a).

Subpart 1309.4--Debarment, Suspension, and Ineligibility


1309.403  Definitions.

    The designees authorized as the Debarring and Suspending Officials 
are set forth in CAM 1301.70.


1309.405  Effect of listing.

    (a) Contracting officers shall review the Excluded Parties List 
System (EPLS) listing for contractors after the opening of bids or 
receipt of proposals and, again, immediately prior to award.
    (b) The designee authorized to determine that a compelling reason 
exists to do business with a debarred/suspended contractor is set forth 
in CAM 1301.70. This designation does not apply to FAR 23.506(e).


1309.405-1  Continuation of current contracts.

    (a) The designee authorized to direct the discontinuance of a 
contract or subcontract because of a debarment, suspension or proposed 
debarment is set forth in CAM 1301.70.
    (b) A written determination must be issued by the designee 
authorized in CAM 1301.70 before the following actions can be taken 
with a contractor that is debarred, suspended or proposed for 
debarment:
    (1) Place any orders exceeding the maximum on an indefinite 
delivery contract;
    (2) Place orders under Federal supply schedule contracts, blanket 
purchase orders or basic ordering agreements; or
    (3) Add new work or exercise options that extend the duration of a 
current contract or order.


1309.405-2  Restrictions on subcontracting.

    The designee authorized to provide, in writing, compelling reasons 
for allowing Government consent to subcontracts with a contractor who 
is debarred, suspended or proposed for debarment is set forth in CAM 
1301.70.


1309.406  Debarment.


1309.406-1  General.

    Debarments and proposed debarments shall be effective throughout 
the Executive branch of the Government unless the designee authorized 
in CAM 1301.70 states in writing compelling reasons justifying DOC 
doing business with the contractor.


1309.406-3  Procedures.

    (a) Investigation and referral. DOC employees shall immediately 
refer any cause that might serve as the basis for debarment through the 
contracting officer to the debarring official.
    (b) Decision-making process. (1) Procedures shall afford the 
contractor, and any named affiliates, an opportunity to submit 
information and argument in opposition to the proposed debarment. This 
may be done in person, in writing or through a representative.
    (2) In actions not based upon a conviction or civil judgment, where 
the

[[Page 10577]]

contractor's submission raises a genuine dispute over facts material to 
the proposed debarment, the following procedures will be followed:
    (i) Provide the contractor an opportunity to appear with counsel, 
submit documentary evidence, present witnesses and confront any person 
the agency presents;
    (ii) A transcribed record of the proceeding will be made, unless 
the agency and contractor mutually agree to waive the requirement for a 
transcript. This transcribed record is available to the contractor at 
cost.
    (c) Notice of proposal to debar. A notice of proposed debarment 
shall be issued by the debarring official in accordance with FAR 9.406-
3(c)(1) through (7).
    (d) Debarring official's decision. (1) For actions based upon a 
conviction or civil judgment, or when there is no authentic dispute 
over material facts, the debarring official's decision shall be based 
on all of the information in the administrative record plus any 
contractor-submitted data. If there is no suspension in effect, the 
decision shall be rendered within 30 working days after receipt of any 
information and argument submitted by the contractor. The debarring 
official can extend this timeframe for good cause.
    (2)(i) When necessary, written findings of fact shall be prepared 
as to disputed material facts. The debarring official will utilize the 
information in the written findings of fact, the data submitted by the 
contractor plus any other information in the administrative record to 
develop the decision.
    (ii) While the debarring official may refer matters involving 
disputed material facts to another official for findings of fact, the 
debarring official can disregard any such findings in whole or in part 
upon a determination that they are clearly erroneous.
    (iii) After the conclusion of proceedings with respect to disputed 
facts, the debarring official will make a decision.
    (3) When the proposed debarment is not based upon a conviction or 
civil judgment, the reason for debarment must be based on a 
preponderance of the evidence.
    (e) Notice of debarring official's decision. FAR 9.406-3(e)(1) 
establishes the notification procedures when a debarment has been 
imposed, while FAR 9.406-3(e)(2) establishes the procedure when a 
debarment is not imposed.
    (f) Procurement counsel shall assist and advise the debarring 
official at each stage of the decision-making process.


1309.407  Suspension.


1309.407-1  General.

    Suspensions shall be effective throughout the executive branch of 
the Government, unless the designee set forth in CAM 1301.70 states in 
writing compelling reasons for continuing to do business with a 
suspended contractor.


1309.407-3  Procedures.

    (a) Investigation and referral. DOC employees shall immediately 
refer any cause that might serve as the basis for suspension through 
the contracting officer to the suspending official.
    (b) Decision-making process. (1) Procedures shall afford the 
contractor, and any named affiliates, an opportunity to submit 
information and argument in opposition to the proposed suspension. This 
may be done in person, in writing or through a representative.
    (2) In actions not based upon an indictment, where the contractor's 
submission raises a genuine dispute over facts material to the proposed 
suspension and if no determination has been made, on the basis of 
Department of Justice advice, that substantial interests of the 
Government in pending or contemplated legal proceedings based on the 
same facts as the suspension would be prejudiced, the following 
procedures will be followed:
    (i) Provide the contractor an opportunity to appear with counsel, 
submit documentary evidence, present witnesses and confront any person 
the agency presents;
    (ii) A transcribed record of the proceeding will be made, unless 
the agency and contractor mutually agree to waive the requirement for a 
transcript. This transcribed record is available to the contractor at 
cost.
    (c) Notice of suspension. A notice of suspension shall be issued by 
the suspending official in accordance with FAR 9.407-3(c)(1) through 
(6).
    (d) Suspending official's decision. (1) For actions based upon an 
indictment, when there is no authentic dispute over material facts, in 
which additional proceedings to determine disputed material facts have 
been denied on the basis of Department of Justice advice, the 
suspending official's decision shall be based on all of the information 
in the administrative record plus any contractor-submitted data.
    (2)(i) When necessary, written findings of fact shall be prepared 
as to the disputed material facts. The suspending official will utilize 
the information in the written findings of fact, the data submitted by 
the contractor plus any other information in the administrative record 
to develop the decision.
    (ii) While the suspending official may refer matters involving 
disputed material facts to another official for findings of fact, the 
suspending official can disregard any such findings in whole or in part 
upon a determination that they are clearly erroneous.
    (iii) After the conclusion of proceedings with respect to disputed 
facts, the suspending official will make a decision.
    (3) The suspension may be modified or terminated by the suspending 
official. However such a decision shall be without prejudice to the 
subsequent imposition of:
    (i) Suspension by any other agency; or
    (ii) Debarment by any agency.
    (4) The suspending official's decision shall be sent to the 
contractor and any affiliates involved, in writing, by certified mail, 
return receipt requested.
    (e) Procurement counsel shall assist and advise the suspending 
official at each stage of the decision-making process.

Subpart 1309.5--Organizational and Consultant Conflicts of Interest


1309.503  Waiver.


1309.503-70  Waiver.

    (a) The need for a waiver of an organizational conflict of interest 
(OCI) may be identified by the contracting officer or by a written 
request submitted by an offeror or contractor. The contracting officer 
shall review all of the relevant facts and shall refer the matter to 
the Senior Bureau Procurement Official, who shall make a written 
recommendation to the Head of Contracting Activity whether a waiver 
should be granted to allow for a contract award or for continuation of 
an existing contract.
    (b) Criteria for Waiver of OCIs. Issuance of a waiver shall be 
limited to those situations in which:
    (1) The work to be performed under contract is vital to the agency;
    (2) There is no party other than the conflicted party that can 
perform the contract at issue; and
    (3) Contractual and/or technical review and supervision methods 
cannot be employed to mitigate the conflict.


1309.506  Procedures.

    The contracting officer shall resolve an actual or potential OCI in 
a manner consistent with the approval or direction of the designee 
authorized in CAM 1301.70. If the responsible contracting officer is 
also the authorized designee in CAM 1301.70, the contracting officer 
must obtain approval

[[Page 10578]]

from the Senior Bureau Procurement Official.


1309.507  Solicitation provisions and contract clauses.


1309.507-1  Solicitation provisions.

    (a) Insert provision 1352.209-70, Potential Organizational Conflict 
of Interest, substantially as written, in solicitations when the 
contracting officer determines there is a potential organizational 
conflict of interest.
    (b) Insert the clause with its Alternate I when the contracting 
officer determines the basic clause should not be modified.


1309.507-2  Contract clauses.

    (a) In accordance with FAR 9.507-2, insert clause 1352.209-71, 
Limitation of Future Contracting, substantially as written, when the 
contractor's eligibility for future prime contract or subcontract 
awards shall be restricted because of services being provided as stated 
in FAR 9.505-1 through 9.505-4.
    (1) Insert the basic clause when the contractor will be providing 
systems engineering and/or technical direction. (See FAR 9.505-1)
    (2) Insert the clause with its Alternate I when the contractor will 
be preparing specifications or work statements. (See FAR 9.505-2)
    (3) Insert the clause with its Alternate II when the contractor 
will be providing technical evaluation or advisory and assistance 
services. (See FAR 9.505-3)
    (4) Insert the clause with its Alternate III when the contractor 
will be obtaining access to proprietary information. (See FAR 9.505-4)
    (5) Insert the clause with its Alternate IV when the contract is a 
task order contract. The contracting officer may modify Alternate IV to 
include a list of systems for which task orders may be issued and 
indicate which organizational conflict of interest provision in 
paragraph (a)(2) of this clause shall apply.
    (6) Insert the clause with its Alternate V when the contract 
provides for delivery orders. The contracting officer shall indicate in 
each delivery order which organizational conflict of interest provision 
in paragraph (a)(2) of this clause shall apply.
    (7) Insert the language in Alternate VI when it is necessary to 
have the restrictions of this clause included in all or some 
subcontracts, teaming arrangements, and other agreements calling for 
performance of work related to the contract.
    (b) Insert clause 1352.209-72, Restrictions against Disclosure, in 
service contracts, including architect-engineer contracts, and supply 
and construction contracts requiring a restriction on the release of 
information developed or obtained in connection with performance of the 
contract.
    (c) Insert the clause 1352.209-73, Compliance with the Laws, in all 
solicitations and contracts.
    (d) Insert the clause 1352.209-74, Organizational Conflict of 
Interest, in all solicitations and contracts.
    (e) Insert clause 1352.209-75, Title 13 and Non-Disclosure 
Requirements, in all solicitations and contracts for services where the 
contractor will have access to Title 13 data.

PART 1311--DESCRIBING AGENCY NEEDS

Subpart 1311.1--Selecting and Developing Requirements Documents
Sec.
1311.103 Market acceptance.
Subpart 1311.5--Liquidated Damages
1311.501 Policy.

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

Subpart 1311.1--Selecting and Developing Requirements Documents


1311.103  Market acceptance.

    The designee authorized as the head of the agency is set forth in 
CAM 1301.70.

Subpart 1311.5--Liquidated Damag