Department of Education Acquisition Regulation, 51884-51911 [2010-20198]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 75, Number 162 (Monday, August 23, 2010)]
[Proposed Rules]
[Pages 51884-51911]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-20198]



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Part II





Department of Education





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48 CFR Chapter 34



Department of Education Acquisition Regulation; Proposed Rule

Federal Register / Vol. 75 , No. 162 / Monday, August 23, 2010 / 
Proposed Rules

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DEPARTMENT OF EDUCATION

48 CFR Chapter 34

[Docket ID ED-2010-OCFO-0015]
RIN 1890-AA16


Department of Education Acquisition Regulation

AGENCY: Office of the Chief Financial Officer, Department of Education 
(Department).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to reissue the Department of Education 
Acquisition Regulation (EDAR) in order to update it to accurately 
implement the current Federal Acquisition Regulation (FAR) and 
Department policies.

DATES: We must receive your comments on or before September 22, 2010.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to https://www.regulations.gov to submit your comments electronically. Information 
on using Regulations.gov, including instructions for accessing agency 
documents, submitting comments, and viewing the docket, is available on 
the site under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed regulations, address 
them to Nicole Evans, U.S. Department of Education, 400 Maryland 
Avenue, SW., room 7164, Potomac Center Plaza, Washington, DC 20202-
4200.

    Privacy Note:  The Department's policy for comments received 
from members of the public (including those comments submitted by 
mail, commercial delivery, or hand delivery) is to make these 
submissions available for public viewing in their entirety on the 
Federal eRulemaking Portal at www.regulations.gov. Therefore, 
commenters should be careful to include in their comments only 
information that they wish to make publicly available on the 
Internet.


FOR FURTHER INFORMATION CONTACT: Nicole Evans. Telephone: (202) 245-
6172 or via Internet: Nicole.Evans@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments, in person, in room 7137, Potomac 
Center Plaza, 550 12th Street, SW., Washington, DC, between the hours 
of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each 
week except Federal holidays.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Background

    The EDAR was last updated in 1987. In the years since then, the FAR 
has changed substantially. These changes caused a need for the 
Department to update the EDAR so that it correctly implements the FAR 
and reflects Department policy.

Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.
    Generally, these proposed regulations are issued under the 
authority of 5 U.S.C. 301, which authorizes the heads of agencies to 
issue regulations governing the agency, and 20 U.S.C. 1018a, which 
authorizes procurement flexibility for the performance based 
organization (PBO), the Office of Federal Student Aid (FSA), for the 
delivery of Federal student financial assistance. We use the term PBO 
or FSA when referring to FSA in this preamble.

Subchapter A--General

Part 3401 ED Acquisition Regulation System

    FAR: FAR Part 1 (Federal acquisition regulations system) sets forth 
the purpose, authority, and structure of the FAR, authorizes agency FAR 
supplements and deviations from the FAR, and discusses career 
development, contracting authority, and responsibilities.
    Current Regulations: The current EDAR predates the procurement 
flexibility authorized by 20 U.S.C. 1018a and contains outdated 
information on the location of regulations and on the roles and 
responsibilities within the Department. The current regulations also do 
not include a section on ratification of unauthorized commitments or on 
the nomination and appointment of contracting officer's 
representatives.
    Proposed Regulations: The proposed regulations would modify 
3401.104 (Applicability) to add subparagraph (b) explaining that the 
PBO has specific contracting authority.
    Proposed subparagraph (c) would add an explanation that when using 
non-appropriated funds the Department will follow the FAR and EDAR to 
the maximum extent practicable.
    We are proposing to revise 3401.105-3 (Copies) to reflect the 
current method for obtaining copies of this regulation.
    We are also proposing to revise 3401.3 (Agency acquisition 
regulations) to add two paragraphs addressing policy regarding the 
agency's supplementation of the FAR and explaining how the EDAR is 
published and codified.
    Proposed changes to 3401.4 (Deviations) would make the Senior 
Procurement Executive (SPE) the approving official for individual 
deviations to the FAR and EDAR (3401.403), and the Chief Acquisition

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Officer (CAO) the approving official for class deviations (3401.404).
    We are further proposing to revise 3401.601 (General) to explain 
the current delegation of contracting authority in the Department.
    Proposed 3401.602-3 (Ratification of unauthorized commitments) 
would outline the Department's policy and procedures on ratifying 
unauthorized commitments.
    Proposed 3401.670 (Nomination and appointment of contracting 
officer's representatives (CORs)) would add information on nominating 
and appointing contracting officer's representatives (CORs). Proposed 
3401.670-3 provides for Contracting Officers to insert a clause 
concerning CORs in all solicitations and contracts for which a COR will 
be (or is) appointed.
    Reasons: The proposed changes to this part provide the reference to 
the PBO statute authorizing the PBO's procurement flexibilities and 
provide more information to the contracting community and the public 
about the EDAR, certain Department policies and procedures, and the 
roles and responsibilities of different contracting personnel in the 
Department.

Part 3402 Definitions of Words and Terms

    FAR: FAR Part 2 (Definitions of words and terms) defines relevant 
words and terms used in the FAR.
    Current Regulations: The current EDAR's part 3402 defines only two 
terms, Head of the Contracting Activity and Procurement Executive, and 
prescribes the use of a definitions clause.
    Proposed Regulations: We are proposing to revise 3402.101 
(Definitions) to add definitions for Chief Acquisition Officer, Chief 
of the Contracting Office, Contracting Officer's Representative, Head 
of the Contracting Activity, Performance-Based Organization, Senior 
Procurement Executive, and Department or ED.
    Proposed 3402.101-70 (Abbreviations and acronyms) would add twelve 
abbreviations and acronyms relevant to the EDAR.
    Reasons: The proposed changes to this part would clarify the 
terminology and the definitions of terms used in the EDAR.

Part 3403 Improper Business Practices and Personal Conflicts of 
Interest

    FAR: FAR Part 3 (Improper business practices and conflicts of 
interest) regulates standards of conduct, gratuities to government 
personnel, reports of suspected antitrust violations, contingent fees, 
and contracts with government employees or organizations owned or 
controlled by them.
    Current Regulations: The current EDAR requires Department personnel 
to report violations of the gratuities clause, antitrust violations, 
and misrepresentation or violation of the covenant against contingent 
fees.
    The current EDAR specifies that the approving official for 
contracts with government employees or organizations controlled by them 
is the Deputy Under Secretary for Management.
    Proposed Regulations: We are proposing to revise 3403.6 (Contracts 
with government employees or organizations owned or controlled by them) 
to change the approving official for exceptions to the policy in FAR 
3.601 (prohibiting contracts with Government employees or organizations 
owned or controlled by them) to the Head of Contracting Activity (HCA).
    Reasons: The proposed revisions identify the official delegated the 
authority to authorize exceptions to the policy in FAR 3.601.

Subchapter B--Competition and Acquisition Planning

Part 3405 Publicizing Contract Actions

    FAR: FAR Part 5 (Publicizing contract actions) regulates how 
agencies are to disseminate information on contract actions.
    Current Regulations: The current EDAR contains provisions on 
notices to perform market surveys and paid advertisements. The 
regulations do not implement the procurement flexibility authorized by 
the PBO statute.
    Proposed Regulations: We are proposing to revise 3405.2 (Synopses 
of proposed contract actions) to add four new sections implementing the 
PBO's authorities related to publicizing, including the PBO's authority 
related to modular contracting (3405.202 Exceptions and 3405.205 
Special Situations), reduced response timeframes (3405.203 Publicizing 
and response time), and two-phase source selection (3405.207 
Preparation and transmittal of synopses).
    We are also proposing to add requirements to 3405.270 (Notices to 
perform market surveys) to require the contracting officer to include 
additional information in notices of proposed contract actions when 
anticipating a sole source contract.
    Reasons: The proposed changes to 3405.2 would implement the PBO's 
authorities for modular contracting, which mandate notice of 
requirements under section 1018a(g)(5)(A-C). The proposed change to 
3405.270 would increase availability of information to the marketplace 
when the Department anticipates a sole source contract.

Part 3406 Competition Requirements

    FAR: FAR Part 6 (Competition requirements) regulates how agencies 
compete various contract actions.
    Current Regulations: The current EDAR does not address this part of 
the FAR.
    Proposed Regulations: Proposed 3406.001 (Applicability) would state 
that this part of the FAR does not apply to modular contracting 
performed by the PBO.
    Proposed 3406.3 (Other than full and open competition) would add 
new 3406.302-5 (Authorized or required by statute) stating that the PBO 
can award noncompetitive awards as part of its modular contracting 
authority.
    Proposed 3406.5 (Competition advocates) would identify the 
Department's Competition Advocate.
    Reasons: The proposed change to add this part would implement the 
PBO's modular contracting authority authorized by statute and identify 
the Competition Advocate mandated in FAR 6.5.

Part 3408 Required Sources of Supplies and Services

    FAR: FAR Part 8 (Required sources of supplies and services) 
mandates certain sources and details how agencies must use those 
sources.
    Current Regulations: The current EDAR requires a clause in subpart 
3408.8 (Acquisition of printing and related supplies) and addresses 
paperwork reduction in part 3427.
    Proposed Regulations: The proposed changes to 3452.208-71 
(Printing) would update the definition of ``unit'' to match the 
definition in the Government Printing and Binding Regulations. 
Specifically, the allowable size counted as one unit is changed from an 
8.5[sec] x 11[sec] page to an image size of 10.75[sec] x 14.25[sec] on 
an 11[sec] x 17[sec] page. The proposed inclusion of 3408.871 
(Paperwork Reduction) in this part would move the prescription for the 
paperwork reduction clause to the appropriate section of the EDAR.
    Reasons: The proposed changes would update the EDAR to match the 
Government Printing and Binding Regulations and the FAR structure.

Part 3409 Contractor Qualifications

    FAR: FAR Part 9 (Contractor Qualifications) includes sections on 
debarment, suspension, and ineligibility, as well as organizational and 
consultant conflicts of interest.
    Current Regulations: The current EDAR does not adequately cover the

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topics of debarment, suspension, and ineligibility or organizational 
conflict of interest.
    Proposed Regulations: The proposed changes in 3409.4 (Debarment, 
suspension, and ineligibility) and 3409.5 (Organizational and 
consultant conflicts of interest) would provide additional details 
regarding these issues.
    Proposed 3409.401 (Applicability) would indicate that this 
subsection does not apply to non-procurement debarment and suspension.
    Proposed 3409.403 (Definitions) would designate the Senior 
Procurement Executive as the Department's debarring official and 
suspending official.
    The proposed changes to 3409.406-3 (Procedures) would provide 
additional detail regarding the steps involved in the debarment 
process.
    Proposed 3409.407-3 (Procedures) would provide similar, additional 
detail on the steps involved in the suspension process.
    We are proposing to revise 3409.506 (Procedures) to give the HCA 
flexibility to terminate or not terminate contracts in cases of 
conflict of interest, and designate the HCA, rather than the Senior 
Procurement Executive, as the authorized reviewer and decision maker in 
such matters.
    We are proposing to add 3409.507 (Solicitation provision and 
contract clause), to add prescriptions requiring contracting officers 
to include the provision in 3452.209-70 (Conflict of interest 
certification) and the clause at 3452.209-71 (Conflict of interest) in 
all solicitations and contracts, respectively, for services above the 
simplified acquisition threshold. We are proposing to add 3409.570 
(Certification at or below the simplified acquisition threshold), which 
describes the conflict of interest certification that contractors make 
when entering into a contract with the Department at or below the 
simplified acquisition threshold.
    Reasons: The proposed changes to the regulations would more clearly 
and completely describe agency procedures that implement the sections 
of the FAR pertaining to suspension, debarment, and conflicts of 
interest. Publication of agency procedures on these matters would be 
beneficial to the contractor community.

Part 3412 Acquisition of Commercial Items

    FAR: FAR Part 12 (Acquisition of commercial items) describes the 
methods of purchasing commercial products and services.
    Current Regulations: The current EDAR does not address this part of 
the FAR.
    Proposed Regulations: Proposed 3412.203 (Procedures for 
solicitation, evaluation, and award) would specify that the PBO has the 
authority to use simplified acquisition procedures for commercial items 
without regard to dollar or timeframe limitations.
    Proposed 3412.302 (Tailoring of provisions and clauses for the 
acquisition of commercial items) would identify the HCA as the person 
who is authorized to approve waivers allowing COs to tailor provisions 
and clauses for the acquisition of commercial items.
    Reasons: These proposed changes implement the PBO's contracting 
authority, as well as identify the individual authorized to provide the 
waivers required in FAR 12.302 when a Contracting Officer needs to 
tailor provisions and clauses for the acquisition of commercial items.

Subchapter C--Contracting Methods and Contract Types

Part 3413 Simplified Acquisition Procedures

    FAR: FAR Part 13 (Simplified acquisition procedures) allows and 
describes streamlined ways of purchasing goods and services below the 
simplified acquisition threshold.
    Current Regulations: The current EDAR includes 3413.107 
(Solicitation and evaluation of quotations), which requires use of 
certain FAR Part 15 procedures when conducting a simplified 
acquisition.
    Proposed Regulations: We propose to remove 3413.107 (Solicitation 
and evaluation of quotations) in order to eliminate the requirement to 
use certain part 15 procedures when conducting a simplified 
acquisition.
    Proposed 3413.003 (Policy) would explain the PBO's authority to use 
simplified acquisition procedures for commercial items without regard 
to the dollar or timeframe limitations in FAR 13.5 and explains the 
PBO's authority to use simplified acquisition procedures for 
competitively awarded noncommercial items contracts up to $1,000,000 
when the procurement is a small business set-aside.
    Proposed 3413.303 would allow use of blanket purchase agreements 
for commercial items up to the threshold of the test program for 
certain commercial items in FAR 13.500(a).
    Reasons: The proposed updates to this part would improve the 
Department's implementation of FAR Part 13 by removing overly 
restrictive regulations and by implementing the PBO's authority in 
section 1018a(e). The current 3413.107 (Solicitation and evaluation of 
quotations) requires the contracting officer to use FAR Part 15 
(Contracting by negotiation) procedures in simplified acquisitions. The 
simplified acquisition procedures in the FAR are designed to maximize 
the Department's flexibility. The proposed addition in 3413.303 would 
allow the Department to use a procurement flexibility authorized in the 
FAR by allowing use of blanket purchase agreements for commercial items 
over the simplified acquisition threshold, under the test program for 
certain commercial items in FAR 13.5.

Part 3414 Sealed Bidding

    FAR: FAR Part 14 (Sealed bidding) describes the rules and 
requirements for using sealed bidding as a method of acquisition.
    Current Regulations: The current EDAR identifies the HCA as the 
official authorized to make determinations under FAR 14.407-3.
    Proposed Regulations: We propose to renumber 3414.407 (Mistakes in 
bids) to match the FAR numbering system.
    Reasons: This proposed change would update the EDAR to follow the 
FAR numbering scheme.

Part 3415 Contracting by Negotiation

    FAR: FAR Part 15 (Contracting by negotiation) sets forth procedures 
for acquiring goods and services through negotiated procurement.
    Current Regulations: The current EDAR contains outdated 
requirements on order of precedence and setting profit prenegotiation 
objectives, and does not address the PBO's authorities, such as two-
phase source selection.
    Proposed Regulations: The proposed change to 3415.2 (Solicitation 
and receipt of proposals and information) would renumber the current 
3415.407 (Solicitation provisions) to 3415.209 (Solicitation 
provisions) to match the FAR numbering of the relevant information. The 
proposed change to 3415.209(a) would reflect the new numbering of the 
clause referenced in the paragraph (52.215-1(e)).
    Removal of 3415.4 (Solicitation and receipt of proposals and 
quotations) would eliminate the prescriptive language for an order of 
precedence clause (3452.215-33).
    Proposed 3415.302-70 (Two-phase source selection) would implement 
the PBO's authority to use a two-phase process to solicit offers and 
select a source for award.
    We are proposing to revise 3415.606 (Agency procedures) to add an 
HCA-designee as a possible point of contact

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for coordination of unsolicited proposals.
    Removal of 3415.9 (Profit) would eliminate the requirement for 
contracting officers to use a certain framework when developing 
prenegotiation profit objectives.
    Reasons: The proposed changes to this section would implement 
section 1018a(d), eliminate unnecessary requirements on the development 
of prenegotiation profit objectives, and eliminate unnecessary 
variation from the FAR-provided clause on order of precedence.

Part 3416 Types of Contracts

    FAR: FAR Part 16 (Types of contracts) describes the various 
contract types and considerations in determining the type of contract 
to use for a particular acquisition.
    Current Regulations: The current EDAR includes requirements 
relating to negotiated overhead rates in agreements, under FAR 16.7, as 
well as requirements we propose to leave unchanged, dealing with cost-
sharing contracts, contract clauses on cost, and letter contracts.
    Proposed Regulations: Proposed 3416.402-2 (Performance incentives) 
would authorize the Department to use a type of contracting called 
``award-term contracting'' for performance-based contracts or task 
orders. This section refers the reader to EDAR 3416.470 for the 
definition of award-term contracting and implementation guidelines.
    Proposed 3416.470 (Award-term contracting) would establish policy 
and procedures for using this type of incentive contracting.
    We are proposing to remove 3416.7 (Agreements), which in 3416.701 
had provided the prescriptive language for the clause at 3452.216-71 
(Negotiated Overhead Rates--Fixed) and in 3416.702 had addressed 
negotiated overhead rates for Basic Agreements.
    Reasons: The proposed addition of the section on award-term 
contracting would provide the CO with guidance on how to use existing 
procurement flexibilities allowed under the FAR. The proposed removal 
of 3416.7 would eliminate unnecessary regulation. The inclusion of 
overhead rates is permitted by the FAR at the contracting officer's 
discretion, so the prescription at 3416.7 is unnecessary.

Part 3417 Special Contracting Methods

    FAR: FAR Part 17 (Special contracting methods) describes 
requirements for options and interagency acquisitions under the Economy 
Act.
    Current Regulations: The current EDAR includes one paragraph in 
this part, under 3417.207 (Exercise of options), which specifies that 
``after funds become available'' means ``after funds become available 
to the contracting officer for obligation.''
    Proposed Regulations: We propose to add 3417.204 (Contracts), 
3417.5 (Interagency acquisition under the Economy Act), and 3417.70 
(Modular contracting). We also propose to modify 3417.207 (Exercise of 
options).
    Proposed 3417.204 (Contracts) would provide that the Department may 
enter into contracts that exceed the five-year limitation specified in 
FAR 17.204(e), subject to approval by the HCA for individual contracts 
or the SPE for classes of contracts.
    Proposed 3417.207 (Exercise of options) would add paragraph (f)(2) 
to explain that the government can accept price reductions offered by 
contractors at any time during performance of a contract, and that 
these reductions are not renegotiations if they were not requested by 
the government.
    We propose to add 3417.5 (Interagency acquisitions under the 
Economy Act), which would address interagency acquisitions procured by 
the PBO under section 1018a(j).
    Proposed 3417.70 (Modular contracting) would detail the PBO's 
authority to perform successive procurements for systems.
    Reasons: FAR 17.204(e) allows agencies to approve contract periods 
for longer than five years. Implementing this regulation in the EDAR 
would allow the Department more flexibility in contracting. The other 
proposed changes to this part would implement the PBO's modular 
contracting authority.

Subchapter D--Socioeconomic Programs

3419 Small Business Programs

    FAR: FAR Part 19 (Small Business Programs) describes requirements 
for and availability of contracting preference programs for small 
businesses.
    Current Regulations: The current regulations are outdated and 
address parts of the FAR that no longer exist.
    Proposed Regulations: Proposed 3419.201-70 (Office of Small and 
Disadvantaged Business Utilization (OSDBU)) would describe the role of 
the OSDBU in implementing FAR 19.201.
    Proposed 3419.502-4 (Methods of conducting set-asides) would allow 
the PBO to procure noncommercial services using simplified acquisition 
procedures if the procurement does not exceed $1,000,000, is conducted 
as a small business set-aside, the price charged for supplies 
associated with the services procured is expected to be less than 20 
percent of the total contract price, and the contract is not awarded on 
a sole-source basis and is not for construction. We are proposing to 
remove 3419.7 (Subcontracting with Small Business and Small 
Disadvantaged Business Concerns) and 3419.8 (Contracting with the Small 
Business Administration (The 8(a) Program).
    Reasons: These proposed changes would update the Department's 
implementation of the FAR and include the PBO's contracting authorities 
under the PBO's authorizing statute, section 1018a(e) (Use of 
simplified procedures for commercial items).
    The proposed removal of 3419.7 would eliminate requirements that 
are redundant with current FAR requirements. EDAR 3419.705-2 
(Determining the need for a subcontracting plan) includes instructions 
to the contracting officer on determining the dollar threshold for 
requirement of a subcontracting plan. The FAR adequately addresses this 
issue in 19.705-2 (Determining the need for a subcontracting plan). 
EDAR 3419.708 (Solicitation provisions and contract clauses) currently 
requires the contracting officer to include in solicitations that 
include clause 52.219-9 a notification that advises prospective 
offerors that subcontracting plans may be requested from all concerns 
determined to be in the competitive range. However, the FAR notifies 
offerors of the requirements for submitting subcontracting plans in the 
clauses requiring submission of the plans (52.219-9, Small business 
subcontracting plan, and its alternates I and II).
    The proposed removal of 3419.8 would eliminate this subpart that 
implemented FAR 19.8, which has changed so significantly as to make 
3419.8 irrelevant. Section 3419.801 currently refers to a section of 
the FAR (19.801) that is no longer in use. Section 3419.870 currently 
details a source selection procedure no longer relevant due to the 
detailed source selection procedures in the updated FAR 19.8.

3422 Application of Labor Laws to Government Acquisitions

    FAR: FAR Part 22 (Application of labor laws to government 
acquisitions) describes various laws, policies, and prohibitions 
governing Federal acquisition.
    Current Regulations: The current EDAR does not address this part of 
the FAR.
    Proposed Regulations: We propose to add 3422.10 (Service Contract 
Act of 1965, as amended) to explain that the 5-year limitation in the 
Service Contract

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Act of 1965, as amended (Service Contract Act), applies to each period 
of the contract individually, not to the cumulative period of base and 
option years, and that accordingly no Department contract will have a 
base or option period longer than five years.
    Reasons: This proposed language is based on the Department of 
Labor's definition of ``contract'' as it applies to the Service 
Contract Act. This definition is set forth in the Department of Labor's 
regulations at 29 CFR 4.143(b) and 29 CFR 4.145(a), which state that an 
extension of a term of a contract--by option or other means--is a 
wholly new contract with respect to the Service Contract Act.

3424 Protection of Privacy and Freedom of Information

    FAR: FAR Part 24 (Protection of privacy and freedom of information) 
provides guidance on protection of individual privacy and the Freedom 
of Information Act.
    Current Regulations: The current EDAR includes implementing 
language for protection of individual privacy, and directs the public 
to the Department's regulations implementing the Freedom of Information 
Act.
    Proposed Regulations: We propose to add 3424.170 (Protection of 
human subjects) which would prescribe a solicitation provision and 
contract clause intended to protect the personal information of anyone 
involved in research activities of the Department.
    We also propose to add 3424.203 (Policy) to state the Department's 
policy on Freedom of Information Act requests and to provide 
prescriptive language for clause 3452.224-70, (Release of information 
under the Freedom of Information Act).
    Reasons: The proposed changes are intended to protect personally 
identifiable information and to better inform the public of the 
Department's policy with respect to the Freedom of Information Act.

3425 Foreign Acquisition

    FAR: FAR Part 25 (Foreign acquisition) implements the Buy American 
Act.
    Current Regulations: The current EDAR designates the HCA as the 
approving official for determinations relating to the Buy American Act, 
and also implements a section of the FAR that no longer exists.
    Proposed Regulations: We propose to remove 3425.2 (Balance of 
payments program) to eliminate outdated language.
    Reasons: This proposed change is based on a FAR change that 
eliminated the need for this section of the EDAR.

Subchapter E--General Contracting Requirements

3427 Patents, Data, and Copyrights

    FAR: FAR Part 27 (Patents, data, and copyrights) regulates patents, 
copyrights, rights in data, and foreign license and technical 
agreements under Federal contracts.
    Current Regulations: The current EDAR includes in this part 
prescriptions for clauses on publication and publicity, advertising of 
awards, and paperwork reduction.
    Proposed Regulations: We propose to add 3427.409 (Solicitation 
provisions and contract clauses) to consolidate the prescriptions for 
clauses 3452.227-70 (Publication and publicity) and 3452.227-71 
(Advertising of awards).
    Proposed 3427.409(c) would provide the prescriptive language for 
clause 3452.227-72 (Use and non-disclosure agreement) and proposed 
3427.409(d) would provide the prescriptive language for clause 
3452.227-73 (Limitations on the use or disclosure of Government-
furnished information marked with restrictive legends).
    As previously discussed, we are proposing to move the prescription 
for use of the clause at 3452.208-72 (Paperwork reduction) to 3408.871.
    Reasons: The consolidation of the prescriptive language for clauses 
3452.227-70 (Publication and publicity) and 3452.227-71 (Advertising of 
awards) is intended to bring clarity to this part and to make the EDAR 
structure consistent with the FAR structure. The proposed addition of 
the Use and non-disclosure agreement and the Limitations on the use or 
disclosure of Government-furnished information marked with restrictive 
legends clauses, 3452.227-72 and 3452.227-73, respectively, is intended 
to protect data from unauthorized disclosure. Moving the Paperwork 
reduction clause prescription from 3427.471 to 3408.871 (Paperwork 
reduction) would make the EDAR structure consistent with the FAR 
structure.

3432 Contract Financing

    FAR: FAR Part 32 (Contract financing) regulates the types of 
financing the Government may make available to contractors, including 
advance payments.
    Current Regulations: The current EDAR includes a prescription for a 
``Method of payment'' clause in 3432.170 (Method of payment), includes 
designation of the HCA as the official authorized to authorize types of 
financing in 3432.4 (Advance Payments), and includes instructions to 
contractors in 3432.704 (Limitation of cost or funds). The current EDAR 
also includes a prescription for clause 3452.232-70 (Prohibition 
against the use of ED funds to influence legislation or appropriations) 
in 3432.770 (Prohibition against the use of ED funds to influence 
legislation or appropriations), and includes a prescription for an 
incremental funding provision in 3432.771 (Provision for incremental 
funding).
    Proposed Regulations: We are proposing to remove 3432.170 (Method 
of payment) to eliminate outdated regulations. We are proposing to add 
3432.705-2 (Clauses for limitation of cost or funds), which prescribes 
the use of clause 3452.232-70 (Limitation of cost or funds) and the 
provision in 3452.232-71 (Incremental funding). We are proposing to 
remove the current 3432.704 (Limitation of cost or funds), 3432.770 
(Prohibition against the use of ED funds to influence legislation or 
appropriations), and 3432.771 (Provision for incremental funding).
    Reasons: The proposed removal of the Method of payment clause is 
intended to eliminate outdated information about being paid by check or 
wire transfer. The Department no longer pays contractors by check or 
wire transfer.
    The proposed addition of 3432.705-2 and removal of current 3432.704 
and 3432.771 reorganizes and updates the information for incrementally 
funded contracts. The current EDAR section on Limitation of cost or 
funds (3432.704) also contains requirements for contractors to follow 
during performance of incrementally funded contracts. Requirements of 
this type should be communicated to contractors in contract clauses, 
not in the body of the regulation. Therefore, we are proposing to 
include these requirements in clause 3452.232-70 (Limitation of cost or 
funds) instead of in the current section of the EDAR (3432.704).
    The proposed removal of 3432.770 would eliminate a redundant 
prohibition on using ED funds in lobbying. The restrictions in FAR Part 
31 already prohibit contractors from spending Government funds on these 
activities.

3433 Protests, Disputes, and Appeals

    FAR: FAR Part 33 (Protests, disputes, and appeals) sets forth the 
rules for handling these types of actions.
    Current Regulations: The current EDAR includes information on 
protests, disputes, and appeals, and references

[[Page 51889]]

outdated information on a board of contract appeals that no longer 
exists.
    Proposed Regulations: We propose to remove unnecessary regulations 
currently in 3433.1 (Protests) and 3433.2 (Disputes and appeals). We 
propose to add a paragraph at 3433.103 to designate the HCA as the 
agency official identified in FAR 33.103(f)(3).
    Reasons: The proposed changes would eliminate outdated and 
unnecessary information. The information contained in the current 
3433.103 (Protests to the agency) is redundant with the information 
contained in FAR 33.103 (Protests to the agency). The current 3433.2 
(Disputes and appeals) references a Board of Contract Appeals that no 
longer exists.

Subchapter F--Special Categories of Contracting

3437 Service Contracting

    FAR: FAR Part 37 (Service contracting) regulates various types of 
service contracts and performance-based acquisition.
    Current Regulations: The current EDAR contains 3437.270 (Consulting 
services reporting clause), which was eliminated by a class deviation 
in 1988. The EDAR also contains 3437.271 (Services of consultants 
clause), which prescribes the use of clause 3452.237-71 (Services of 
consultants) in all cost-reimbursement contracts and solicitations. 
This clause requires the contractor to obtain the contracting officer's 
written approval to use certain consultants under their contract.
    Proposed Regulations: We propose adding 3437.170, which would 
require the inclusion of language set forth in clause 3452.237-71 
(Observance of administrative closures) in all solicitations and 
contracts for services. We propose removing 3437.270 (Consulting 
services reporting clause).
    We propose changing the number of 3437.271 (Services of consultants 
clause) to 3437.270, because that number would be available if the 
current 3437.270 is removed. We propose changing the prescription in 
3437.270 (Services of consultants clause) to exclude FSA from the 
requirements of the clause.
    Finally, we propose adding 3437.670 (Contract type) which would 
state that award-term contracting can be used in performance-based 
contracts and orders, if approved by the HCA.
    Reasons: The proposed addition of the clause at 3452.237-71 
(Observance of administrative closures) is intended to clarify the 
Department's policy on whether contractor work is required when the 
Government is closed.
    The proposed change to the prescription for use of the clause at 
3452.237-70 (Services of consultants) is intended to implement section 
1018a(c).
    The proposed new subsection on contract type is intended to 
authorize the use of award-term contracting. This change is necessary 
because although the current EDAR does not address this subject, award-
term contracting is allowed under the FAR and used across the 
government. This change to the EDAR would clarify that the Department 
allows and intends for COs to use this procurement flexibility.

439 Acquisition of Information Technology

    FAR: FAR Part 39 (Acquisition of information technology) regulates 
the acquisition of information technology.
    Current Regulations: The current EDAR does not address this FAR 
part.
    Proposed Regulations: We propose adding 3439.70 (Department 
requirements for the acquisition of information technology). In this 
subpart, we propose adding 3439.701 (Internet protocol version 6) to 
require the contracting officer to insert the clause at 3452.239-70 
(Internet protocol version 6 (IPv6)), in all solicitations and 
resulting contracts for hardware and software. This clause requires 
contractors to comply with certain standard protocols when developing 
software or systems.
    We are proposing to add 3439.702 (Department security 
requirements), to require the contracting officer to include the Notice 
to offerors of Department security requirements (3452.239-71) provision 
and the clause at 3452.239-72 (Department security requirements) when 
contractor employees will have access to Department-controlled 
facilities or space, or when the work (wherever located) involves the 
design, operation, repair, or maintenance of information systems and 
access to sensitive but unclassified information.
    Finally, we are proposing the addition of 3439.703 (Federal desktop 
core configuration (FDCC) compatibility), which would require the 
contracting officer to include the clause at 3452.239-73 (Federal 
desktop core configuration (FDCC) compatibility) in all solicitations 
and contracts where software will be developed, maintained, or operated 
on any system using the FDCC configuration. This clause requires 
software used on FDCC computers to be FDCC-compatible.
    Reasons: These proposed changes are intended to implement multiple 
information technology initiatives and standards developed in the past 
several years by the information technology industry and adopted by the 
Government, including the Office of Management and Budget.

Subchapter F--Contract Management

3442 Contract Administration and Audit Services

    FAR: FAR Part 42 (Contract administration and audit services) 
requires use of a contractor performance information system, contract 
monitoring, and governs other contract administration functions.
    Current Regulations: The current EDAR contains an obsolete 
delegation of authority in 3442.705 (Final indirect cost rates), a 
section at 3442.7001 prescribing the use of clause 3452.242-72 
(Withholding of contract payments), and sections in 3443.7002 on the 
Litigation and claims clause, 3442.7003 regarding the Delays clause, 
and 3442.71 on the Department's policy on accessibility to persons with 
disabilities.
    Proposed Regulations: We are proposing to remove 3442.7 (Indirect 
cost rates) which had delegated authority to establish final indirect 
cost rates to the Chief of the Cost Determination Branch in Grants and 
Contracts Services.
    We are also proposing to remove 3442.7001 (Withholding of contract 
payments clause) and to renumber 3442.7002 (Litigation and claims 
clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002. We 
propose no change to 3442.71, Accessibility of Meetings, Conferences, 
and Seminars to Persons with Disabilities.
    Reasons: These proposed changes are intended to eliminate outdated 
information. The proposed removal of 3442.7 (Indirect cost rates) would 
remove the outdated delegation to establish final indirect cost rates. 
The FAR allows the contracting officer to make this determination (FAR 
42.705).
    We are proposing to remove 3442.7001 (Withholding of contract 
payments clause) because the language in this section allows the 
Department to withhold contract payments if any report required to be 
submitted by the contractor is overdue, or if the contractor fails to 
perform or deliver work or services as required by the contract. The 
Department's ability to withhold payment for non-performance is 
established in existing FAR clauses, based on the specific contract 
type and arrangement, and does not need to be repeated in the EDAR.
    We are proposing to renumber 3442.7002 (Litigation and claims 
clause) to 3442.7001, and 3442.7003 (Delays clause) to 3442.7002, to 
use the number that would be available if the current

[[Page 51890]]

3442.7001 (Withholding of contract payments clause) is removed.

3443 Contract Modifications

    FAR: FAR Part 43 (Contract modifications) provides guidance and 
requirements for changes to contracts.
    Current Regulations: The current EDAR in 3443.106 (Contract clause) 
requires the inclusion of EDAR clause 3452.243-70 (Key personnel) in 
all cost-reimbursement contracts.
    Proposed Regulations: We propose to renumber 3443.106 as 3443.107, 
to better align the EDAR numbering with the FAR. In addition, we 
propose a change to the language in newly renumbered 3443.107 to 
provide that the language in 3452.243-70 (Key personnel) would need to 
be included only in appropriate contracts.
    Reasons: The current requirement to include the Key personnel 
clause in all cost-reimbursement contracts does not allow for 
contracting officer discretion in the use of this clause. The clause 
requires contractors to obtain contracting officer approval before 
changing the personnel assigned to the contract and designated in this 
clause as ``key personnel.'' In some contracts, this designation and 
approval process is important to the success of the contract and to the 
Department's ability to adequately monitor the contract. In some 
contracts, this requirement is unnecessarily cumbersome, as the 
designation and approval process is not important to the success of the 
contract or the Department's ability to adequately monitor the 
contract.
    The new prescription would require the contracting officer to 
insert a clause substantially the same as the Key personnel clause ``in 
all solicitations and resultant contracts in which it will be essential 
for the contracting officer to be notified that a change of designated 
personnel is to take place by the contractor.'' This change in 
prescription would allow greater discretion in the use of this clause.

Subchapter H--Clauses and Forms

3452 Solicitation Provisions and Contract Clauses

    FAR: FAR Part 52 (Solicitation provisions and contract clauses) is 
the part of the FAR containing all FAR provisions and clauses required 
or recommended for inclusion in solicitations and contracts, as 
prescribed in the preceding parts of the FAR.
    Current Regulations: The current EDAR includes text for twenty-two 
provisions and clauses, all of which are prescribed in the preceding 
parts of the EDAR.
    Proposed Regulations: We propose to add the Contracting Officer's 
Representative clause at 3452.201-70, to define the role and 
responsibility of that position.
    The proposed Definitions--Department of Education clause at 
3452.202-1 would be revised to remove the specific definitions in the 
current clause (``Secretary'', ``Head of the Agency'', ``contracting 
officer'', ``Contracting Officer's Technical Representative'', 
``Department or ED'', and ``subcontract'', and, instead, reference the 
FAR definitions at 2.101 and the EDAR definitions at 3402.101.
    We are proposing renumbering the Paperwork Reduction Act clause 
from 3452.227-71 to 3452.208-72.
    We are proposing a new Conflict of interest certification provision 
in 3452.209-70, which would require offerors to certify that they have 
identified actual or potential conflicts of interest.
    We are proposing a new Conflict of interest clause at 3452.209-71, 
which would provide for potential criminal penalties for false 
certification regarding conflict of interest.
    We are proposing to remove the Order of precedence clause at 
3452.215-33, and instead use FAR clause 52.215-8 (Order of precedence--
uniform contract format).
    We are proposing to remove the Negotiated overhead rates--Fixed 
clause at 3452.216-71, which specifies procedures and policy for 
applying indirect rates to the contract. Applying indirect rates is 
adequately addressed in the FAR. We are proposing to add the Award-Term 
clause at 3452.216-71, which would provide information on the duration 
of an award-term contract, require an award-term plan, and provide 
guidance on making award determinations and on remedies available to 
contractors in award-term situations.
    We are adding the Release of information under the Freedom of 
Information Act clause 3452.224-70, which would advise contractors of 
potential releases of information pursuant to the Freedom of 
Information Act.
    The proposed Notice about research activities involving human 
subjects provision in 3452.224-71 and the proposed Research activities 
involving human subjects clause at 3452.224-72, would address the 
requirements found in 34 CFR part 97.
    We are proposing to add the Use and non-disclosure agreement clause 
at 3452.227-72, which would protect contractor data from unauthorized 
disclosure by requiring the intended recipient to sign a use and non-
disclosure agreement before receiving any proprietary data, technical 
data, or computer software delivered to the Government with 
restrictions on use, modification, reproduction, release, performance, 
display, or disclosure. We are proposing to remove the outdated 
Prohibition against the use of ED funds to influence legislation or 
appropriations clause at 3452.232-70.
    The proposed Limitation of cost or funds clause at 3452.232-70 
would provide the format and content of information to be provided by 
the contractor in cases of cost overruns.
    We are proposing to revise the Incremental funding clause at 
3452.232-71 by removing paragraph (b) of this clause, which had 
indicated that ``the Limitation of Cost clause in FAR 52.232-20 shall 
supersede the Limitation of Funds clause in the event the contract 
becomes fully funded.'' The Limitation of cost clause is not prescribed 
for inclusion in an incrementally funded contract, so this paragraph is 
unnecessary. We are proposing to remove the Method of payment clause at 
3452.232-72, which indicates that payment under the contract will be 
made either by check or by wire transfer, because the Department no 
longer makes payments in this manner.
    The proposed amendment to paragraph (b) of the Services of 
consultants clause at 3452.237-70 would raise the default daily rate 
for consultants where contracting officer approval is required to an 
amount greater than $800.
    We are proposing to add the Observance of administrative closures 
clause at 3452.237-71 to clarify the Department's policy on whether 
contractor work is required when the Government is closed. We are 
proposing to add the Internet protocol version 6 (IPv6) clause at 
3452.239-70 to incorporate the Department's requirement for compliance 
with this protocol.
    We are proposing to add the Notice to offerors of Department 
security requirements provision in 3452.239-71 and the Department 
security requirements clause at 3452.239-72 to incorporate the 
Department's updated security requirements.
    We are proposing to add the Federal desktop core configuration 
(FDCC) compatibility clause at 3452.239-73 clause to incorporate the 
Department's requirement for compatibility with the FDCC.
    We are proposing to change the prescription reference for the 
Litigation and claims clause at 3452.242-70.

[[Page 51891]]

    We are proposing to reword and change the prescription reference 
for the Notice to the government of delays clause at 3452.242-71.
    We are proposing to leave unchanged the Accessibility of meetings, 
conferences, and seminars to persons with disabilities clause at 
3452.242-73.
    We are proposing to amend the Key personnel clause at 3452.243-70, 
to provide for a listing of the labor category and name of key 
personnel to be listed in the contract.
    We are proposing to amend the Foreign travel clause at 3452.247-70 
to add travel to Puerto Rico, the U.S. Virgin Islands, and other U.S. 
territories as instances of foreign travel.
    Reasons: The proposed changes to this part of the EDAR are 
consistent with the changes to the prescriptive language in the 
preceding parts, and would update the provisions and clauses to more 
accurately reflect current regulations and policy.

Executive Order 12866

    Under Executive Order 12866, the Secretary must determine whether a 
regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may (1) Have an annual effect on the economy of 
$100 million or more, or adversely affect a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or tribal governments or communities in a 
material way (also referred to as an ``economically significant'' 
rule); (2) create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; (3) materially alter the 
budgetary impacts of entitlement grants, user fees, or local programs 
or the rights and obligations of recipients thereof; or (4) raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive order. The 
Secretary has determined that this regulatory action is not significant 
under section 3(f) of the Executive order.

Potential Costs and Benefits

    This notice has been reviewed in accordance with Executive Order 
12866. Under the terms of the order, we have assessed the potential 
costs and benefits of this proposed regulatory action.
    The potential costs associated with this proposed regulatory action 
are those resulting from statutory requirements and those we have 
determined as necessary for administering the EDAR effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this proposed regulatory action, we have determined 
that the benefits of the proposed regulatory action justify the costs.
    We have determined, also, that this proposed regulatory action does 
not unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section of this preamble.

Regulatory Flexibility Act Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq., as 
amended by the Small Business Regulatory Flexibility 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 impact on a 
substantial number of small entities. Pursuant to the Regulatory 
Flexibility Act, the Secretary certifies that this proposed rule will 
not have a significant economic impact on a substantial number of small 
entities.
    The rule would update the EDAR; it would not directly regulate any 
small entities. As a result, an initial regulatory flexibility analysis 
is not required and none has been prepared.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Intergovernmental Review

    The EDAR is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Assessment of Educational Impact

    In accordance with section 441 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

Electronic Access to This Document

    You can view this document, as well as all other documents of this 
Department published in the Federal Register, in text or Adobe Portable 
Document Format (PDF) on the Internet at the following site: https://www.ed.gov/news/fedregister. To use PDF you must have Adobe Acrobat 
Reader, which is available free at this site.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: https://www.gpoaccess.gov/nara/.


(Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects in 48 CFR Chapter 34

    Government procurement.

    Dated: August 6, 2010.
Arne Duncan,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend title 48 of the Code of Federal Regulations by revising 
chapter 34 to read as follows:

[[Page 51892]]

TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

CHAPTER 34--DEPARTMENT OF EDUCATION ACQUISITION REGULATION

PARTS 3400 to 3499

SUBCHAPTER A--GENERAL

Sec.
3401 ED Acquisition regulation system
3402 Definitions of words and terms
3403 Improper business practices and personal conflicts of interest

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

3405 Publicizing contract actions
3406 Competition requirements
3408 Required sources of supplies and services
3409 Contractor qualifications
3412 Acquisition of commercial items

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

3413 Simplified acquisition procedures
3414 Sealed bidding
3415 Contracting by negotiation
3416 Types of contracts
3417 Special contracting methods

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

3419 Small business programs
3422 Application of labor laws to government acquisitions
3424 Protection of privacy and freedom of information
3425 Foreign acquisition

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

3427 Patents, data, and copyrights
3428 Bonds and insurance
3432 Contract financing
3433 Protests, disputes, and appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

3437 Service contracting
3439 Acquisition of information technology

SUBCHAPTER G--CONTRACT MANAGEMENT

3442 Contract administration and audit services
3443 Contract modifications
3445 Government property
3447 Transportation

SUBCHAPTER H--CLAUSES AND FORMS

3452 Solicitation provisions and contract clauses

SUBCHAPTER A--GENERAL

PART 3401--ED ACQUISITION REGULATION SYSTEM

3401.000 Scope of part.
Subpart 3401.1--Purpose, Authority, Issuance
3401.104 Applicability.
3401.105 Issuance.
3401.105-2 Arrangement of regulations.
3401.105-3 Copies.
Subpart 3401.3--Agency Acquisition Regulations
3401.301 Policy.
3401.303 Publication and codification.
3401.304 Agency control and compliance procedures.
Subpart 3401.4--Deviations
3401.401 Definition.
3401.403 Individual deviations.
3401.404 Class deviations.
Subpart 3401.5--Agency and Public Participation
3401.501 Solicitation of agency and public views.
3401.501-2 Opportunity for public comments.
Subpart 3401.6--Career Development, Contracting Authority, and 
Responsibilities
3401.601 General.
3401.602-3 Ratification of unauthorized commitments.
3401.670 Nomination and appointment of contracting officer's 
representatives (CORs).
3401.670-1 General.
3401.670-2 Appointment.
3401.670-3 Contract clause.

    Authority:  5 U.S.C. 301 and 20 U.S.C. 1018a.


3401.000  Scope of part.

    The Federal Acquisition Regulation System brings together, in title 
48 of the Code of Federal Regulations, the acquisition regulations 
applicable to all executive agencies of the Federal government. This 
part establishes a system of Department of Education (Department) 
acquisition regulations, referred to as the EDAR, for the codification 
and publication of policies and procedures of the Department that 
implement and supplement the Federal Acquisition Regulation (FAR).
Subpart 3401.1--Purpose, Authority, Issuance


3401.104  Applicability.

    (a) The FAR and the EDAR apply to all Department contracts, as 
defined in FAR Part 2, except where expressly excluded.
    (b) 20 U.S.C. 1018a provides the PBO with procurement authority and 
flexibility associated with sections (a)-(l) of the statute.
    (c) For non-appropriated fund contracts, the FAR and EDAR will be 
followed to the maximum extent practicable, excluding provisions 
determined by the contracting officer, with the advice of counsel, not 
to apply to contracts funded with non-appropriated funds. Adherence to 
a process similar to those required by or best practices suggested by 
the FAR will not confer court jurisdiction concerning non-appropriated 
funds that does not otherwise exist.


3401.105  Issuance.


3401.105-2  Arrangement of regulations.

    (c)(5) References and citations. The regulations in this chapter 
may be referred to as the Department of Education Acquisition 
Regulation or the EDAR. References to the EDAR are made in the same 
manner as references to the FAR. See FAR 1.105-2(c).


3401.105-3  Copies.

    Copies of the EDAR in the Federal Register and Code of Federal 
Regulations (CFR) may be purchased from the Superintendent of 
Documents, Government Printing Office (GPO), Washington, DC 20402. An 
electronic version of the EDAR is available for viewing at: https://www.ed.gov/policy/fund/reg/clibrary/edar.html.
Subpart 3401.3--Agency Acquisition Regulations


3401.301  Policy.

    (a)(1) Subject to the authorities in FAR 1.301(c) and other 
statutory authority, the Secretary of Education (Secretary) or delegate 
may issue or authorize the issuance of the EDAR. It implements or 
supplements the FAR and incorporates, together with the FAR, Department 
policies, procedures, contract clauses, solicitation provisions, and 
forms that govern the contracting process or otherwise control the 
relationship between the Agency, including its suborganizations, and 
contractors or prospective contractors. The Head of Contracting 
Activity (HCA) for FSA may issue supplementary guidelines applicable to 
FSA.


3401.303  Publication and codification.

    (a) The EDAR is issued as chapter 34 of title 48 of the CFR.
    (1) The FAR numbering illustrations at FAR 1.105-2 apply to the 
EDAR.
    (2) The EDAR numbering system corresponds with the FAR numbering 
system. An EDAR citation will include the prefix ``34'' prior to its 
corresponding FAR part citation; e.g., FAR 25.108-2 would have 
corresponding EDAR text numbered as EDAR 3425.108-2.
    (3) Supplementary material for which there is no counterpart in the 
FAR will be codified with a suffix beginning with ``70'' or, in cases 
of successive sections and subsections, will be numbered in the 70 
series (i.e., 71-79). These supplementing sections and subsections will 
appear to the closest corresponding FAR citation; e.g., FAR 16.4 
(Incentive Contracts) may be augmented in the EDAR by citing EDAR 
3416.470 (Award Term) and FAR 16.403 (Fixed-price incentive contracts) 
may be augmented in the EDAR by citing EDAR 3416.403-

[[Page 51893]]

70 (Award fee contracts). (Note: These citations are for illustrative 
purposes only and may not actually appear in the published EDAR.)
    For example:

----------------------------------------------------------------------------------------------------------------
                  FAR                       Is implemented as                     Is augmented as
----------------------------------------------------------------------------------------------------------------
15....................................  3415.....................  3415.70.
15.1..................................  3415.1...................  3415.170.
15.101................................  3415.101.................  3415.101-70.
15.101-1..............................  3415.101-1...............  3415.101-1-70.
15.101-1(b)...........................  3415.101-1(b)............  3415.101-1(b)(70).
15.101-1(b)(1)........................  3415.101-1(b)(1).........  3415.101-1(b)(1)(70).
----------------------------------------------------------------------------------------------------------------

     (c) Activity-Specific Authority. Guidance that is unique to an 
organization with HCA authority contains that activity's acronym 
directly preceding the cite. The following activity acronyms apply:
    FSA--Federal Student Aid.


3401.304  Agency control and compliance procedures.

    (a) The EDAR is issued for Department acquisition guidance in 
accordance with the policies stated in FAR 1.301. The EDAR is subject 
to the same review procedures within the Department as other 
regulations of the Department.
Subpart 3401.4--Deviations


3401.401  Definition.

    A deviation from the EDAR has the sam