Homeland Security Acquisition Regulation (HSAR); Revision Initiative [HSAR Case 2009-002], 50631-50637 [2012-20440]
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Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations
Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
FOR FURTHER INFORMATION CONTACT:
Teresa McConahie, Office of the Chief
Procurement Officer, Department of
Homeland Security, (202) 447–0271.
SUPPLEMENTARY INFORMATION:
List of Subjects in 47 CFR Part 73
Radio, Radio broadcasting.
Federal Communications Commission.
Nazifa Sawez,
Assistant Chief, Audio Division, Media
Bureau.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 73 as
follows:
PART 73—RADIO BROADCAST
SERVICES
I. Background
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336 and
339.
§ 73.202
[Amended]
2. Section 73.202(b), the Table of FM
Allotments under New York, is
amended by adding Westfield, Channel
265A.
■
[FR Doc. 2012–20682 Filed 8–21–12; 8:45 am]
BILLING CODE 6712–01–P
48 CFR Parts 3001, 3002, 3003, 3004,
3005, 3006, 3012, 3018, 3022, 3023,
3033, 3035, 3036, 3042, 3045, 3052, and
3053
[Docket No. DHS–2009–0085]
RIN 1601–AA28
Homeland Security Acquisition
Regulation (HSAR); Revision Initiative
[HSAR Case 2009–002]
Office of the Chief Procurement
Officer, DHS.
ACTION: Final rule.
AGENCY:
DHS is issuing a final rule
amending multiple sections of the
Homeland Security Acquisition
Regulation (HSAR). These amendments
align existing content with the Federal
Acquisition Regulation (FAR);
implement Section 695 of the PostKatrina Emergency Management Reform
Act of 2006 by restricting the length of
certain noncompetitive contracts
entered into by the Department of
Homeland Security to facilitate the
response to or recovery from a natural
disaster, act of terrorism, or other
manmade disaster; clarify agency
acquisition regulations; and make
editorial corrections.
DATES: Effective Date: September 21,
2012.
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This final rule amends the
Department’s acquisition regulation
which was initially issued in 2003. 68
FR 67871 (Dec. 4, 2003), as amended at
71 FR 25767 (May 2, 2006). On
September 13, 2010, DHS published a
notice of proposed rulemaking NPRM,
with a public comment period ending
on November 12, 2010. 75 FR 55529.
DHS received no public comments on
this NPRM. DHS is now adopting the
proposed rule, with minor changes, as
final.
II. Discussion of Final Rule
DEPARTMENT OF HOMELAND
SECURITY
SUMMARY:
I. Background
II. Discussion of Final Rule
III. Regulatory Analyses
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Executive Order 13132 (Federalism)
E. National Environmental Policy Act
In the NPRM, DHS proposed various
changes to the Homeland Security
Acquisition Regulations (HSAR),
including changes to 48 CFR part 3006
implementing section 695 of the PostKatrina Emergency Management Reform
Act of 2006 (PKEMRA), Public Law
109–295, 120 Stat. 1394, 1460 (Oct. 4,
2006). This final rule implements the
majority of the changes described in the
‘‘Discussion of Proposed Rule’’ section
of the NPRM. See 75 FR 55530–55532.
Additionally, as a result of further
internal review, DHS is making several
minor changes to the proposed rule in
this final rule. The changes are
administrative in nature and do not
change the substance of the rule. The
changes to the proposed rule include:
(1) Adding an ‘‘s’’ to the word ‘‘System’’
in the phrase ‘‘DHS Sensitive System
Handbook’’ at 3004.470–2; changing the
phrase ‘‘DHS legal counsel’’ to ‘‘legal
counsel’’ at 3003.204–(a); and correcting
the citation at 3003.1003(a) to read
‘‘(FAR) 48 CFR 52.203–13’’ in place of
‘‘(FAR) 49 CFR 52.203–13’’. DHS is
correcting these inadvertent
typographical errors to ensure the final
rule is clear and precise.
DHS is also making a technical
change by removing the proposed
change at (HSAR) section 3009.403
designating the DHS Heads of
Contracting Activity as the DHS
Suspension and Debarment Officials.
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50631
The Secretary of Homeland Security has
approved a new Suspension and
Debarment program which eliminates
the Heads of the Contracting Activities
as Suspension and Debarment Officials.
The change in the proposed rule is no
longer necessary and is not included in
this final rule.
DHS is also correcting the title of the
FEMA HCA at 3002.101 to read
‘‘Director, Office of Acquisition
Management (FEMA)’’ in place of
‘‘Director, Procurement (FEMA)’’. This
change is necessary due to a change in
the naming convention for this office.
In the NPRM, DHS proposed to delete
paragraph (d) of clause 3052.216–71,
Determination of Award Fee, to align
the HSAR with the OMB guidance,
Appropriate Use of Incentive Contracts
(Dec. 4, 2007). This final rule also
revises the date of the entire clause to
distinguish the existing version of the
clause from the revised version.
The NPRM also proposed the
inclusion of paragraph (k)(1) of
3052.204–71 Alternate I regarding
contractor employee access. In this final
rule, the proposed change to paragraph
(k)(1) is not included because a similar
provision already exists at (HSAR)
3004.470–2, citing to the DHS Sensitive
Systems Policy Directive 4300A and the
DHS 4300A Sensitive Systems
Handbook both of which address
contractor employee access.
Throughout this final rule, references
to Title 41 of the United States Code
have been revised to reflect the
recodification of Title 41 under Public
Law 111–350, January 4, 2011.
III. Regulatory Analyses
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
This is not a significant regulatory
action under Section 6(b) of Executive
Order 12866, as supplemented by
Executive Order 13563, and the Office
of Management and Budget has not
reviewed this final rule. This final rule
is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), the term ‘‘small
entities’’ comprises of small businesses,
not for profit organizations that are
independently owned and operated and
are not dominant in their fields, and
government jurisdictions with
populations of less than 50,000. DHS
certifies that this final rule will not have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
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Flexibility Act because the rule applies
to internal approval procedures,
supplements the Federal Acquisition
Regulations, and is intended to clarify
or eliminate existing agency acquisition
regulations and policies.
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C. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all
Departments are required to submit to
the Office of Management and Budget
(OMB), for review and approval any
reporting requirements inherent in a
rule. The Paperwork Reduction Act
applies to this final rule. However, the
information collection requirements
imposed by the provisions 3052.205–70
and 3052.212–70 are currently covered
by the approved information collection
requirements for provisions (OMB
Clearance numbers 1600–0003, PostContract Award Information, and 1600–
0005, Solicitation of Proposal
Information for Award of Public
Contracts). DHS considers that any
changes due to the use of these clauses
will be within the estimated hours for
the existing approved OMB clearance.
The clause at 3052.203–70 does not
create a new information collection
requirement. It provides a format for
contractors to use when making a
disclosure under FAR 3.1003 and
52.203–13. The FAR disclosure
requirements are approved under OMB
Clearance Number 9000–0164.
You need not respond to a collection
of information unless it displays a
currently valid control number from
OMB. Use of these two information
collections, 1600–0003 and 1600–0005,
has been approved by OMB until
January 31, 2012, and February 28,
2015, respectively. The extension for
1600–0003 is currently under review at
OMB.
D. Executive Order 13132 (Federalism)
This final rule will not have
substantial direct effect on the States, on
the relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, DHS has determined that
this rule does not warrant the
preparation of a federalism impact
statement.
E. National Environmental Policy Act
We have analyzed this final rule
under Department of Homeland
Security Management Directive 023–01
which guides the Department in
complying with the National
Environmental Policy Act of 1969
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(NEPA) (42 U.S.C. 4321–4370f), and
have made a determination this action
is one of a category of actions which do
not individually or cumulatively have a
significant effect on the human
environment. This rule, which does not
involve any extraordinary
circumstances, is categorically excluded
under paragraphs A3(b) and A3(d) in
Table I of Appendix A of Directive 023–
01 because it implements legislation
and amends acquisition regulations
without changing the regulations’
environmental effect.
List of Subjects in 48 CFR Parts 3001,
3002, 3003, 3004, 3005, 3006, 3012,
3018, 3022, 3023, 3033, 3035, 3036,
3042, 3045, 3052 and 3053
Government procurement.
Daniel L. Clever,
Deputy Chief Procurement Officer,
Department of Homeland Security.
Accordingly, DHS amends 48 CFR
parts 3001, 3002, 3003, 3004, 3005,
3006, 3012, 3018, 3022, 3023, 3033,
3035, 3036, 3042, 3045, 3052, and 3053
as follows:
■ 1. The authority citation for 48 CFR
parts 3001, 3002, 3003, 3004, 3005,
3006, 3022, 3023, 3033, 3035, 3036,
3042, 3045, and 3053 is revised to read
as follows:
Authority: 5 U.S.C. 301–302, 41 U.S.C.
1707, 41 U.S.C. 1702, 48 CFR part 1, subpart
1.3, and DHS Delegation Number 0702.
PART 3001—FEDERAL ACQUISITION
REGULATION SYSTEM
2. Amend Subpart 3001.1 by adding
section 3001.103 to read as follows:
■
3001.103
Authority.
The HSAR is issued by DHS’s Chief
Procurement Officer, who is the Senior
Procurement Executive (SPE), see 41
U.S.C. 1702 and DHS Delegation
Number 0702, under authority of 5
U.S.C. 301–302, the Office of Federal
Procurement Policy Act, Pub. L. No. 93–
400, 88 Stat. 796 (1974), including
sections 22 and 25, 41 U.S.C. 1707, 1302
and 1303, and (FAR) 48 CFR part 1,
subpart 1.3.
■ 3. Revise section 3001.105–2 to read
as follows:
3001.105–2
Arrangement of regulations.
(a) General. The HSAR, which
encompasses both Department-wide and
Component-unique guidance, conforms
to the arrangement and numbering
system prescribed by (FAR) 48 CFR
1.105–2. Guidance that is unique to a
Component contains the organization’s
acronym or abbreviation directly
following the title. The following
acronyms and abbreviations apply:
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DHS Management (MGMT), including
the Office of Procurement Operations
(OPO) and the Office of Selective
Acquisitions (OSA);
Federal Emergency Management
Agency (FEMA);
Federal Law Enforcement Training
Center (FLETC);
Transportation Security
Administration (TSA);
U.S. Coast Guard (USCG);
U.S. Customs and Border Protection
(CBP);
U.S. Immigration and Customs
Enforcement (ICE); and
U.S. Secret Service (USSS).
■ 4. Revise section 3001.105–3 to read
as follows:
3001.105–3
Copies.
Official versions of the HSAR are
available in the Code of Federal
Regulations, as supplemented and
revised from time to time by the Federal
Register, both of which are available
from the Government Printing Office in
paper and electronic form. The HSAR is
also available in electronic form at
https://www.dhs.gov. A convenient but
unofficial up-to-date version of the
HSAR is also available from the
Government Printing office at https://
www.gpoaccess.gov/ecfr/.
The Homeland Security Acquisition
Manual (HSAM), which complements
the HSAR, can also be found at https://
www.dhs.gov.
■ 5. In section 3001.301, revise
paragraph (a)(1) to read as follows:
3001.301
Policy.
(a)(1) The HSAR is issued for
Departmental guidance according to the
policy cited in (FAR) 48 CFR 1.301. The
HSAR establishes uniform Department
of Homeland Security policies and
procedures for all acquisition activities
within the Department of Homeland
Security. Component supplemental
acquisition regulations to be inserted in
the HSAR as a HSAR supplement
regulation must be reviewed and
approved by the Chief Procurement
Officer (CPO) before the CPO authorizes
and submits the proposed content for
publication in the Federal Register
under (FAR) 48 CFR part 1, subparts 1.3
and 1.5.
*
*
*
*
*
3001.301–70
[Amended]
6. Amend section 3001.301–70 in
paragraph (a) introductory text by
removing ‘‘20598’’ and adding ‘‘20528’’
in its place.
■ 7. In section 3001.301–71, revise
paragraph (c) to read as follows:
■
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3001.301–71
Effective Date.
*
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*
*
(c) When required by law, contracting
officers must modify existing contracts
to include HSAR changes. Otherwise,
and where feasible, contracting officers
should consider using the Changes
clause or other suitable authority, to
modify existing contracts to include
HSAR changes.
■ 8. In section 3001.303, revise
paragraph (a)(3) to read as follows:
3001.303
Publication and codification.
(a) * * *
(3) Coverage in HSAR chapter 30 that
supplements the FAR will use part,
subpart, section, and subsection
numbers ending in ‘‘70’’ through ‘‘89’’.
A series of numbers beginning with
‘‘70’’ is used for provisions and clauses
(e.g., (HSAR) 48 CFR 3001.301–70).
*
*
*
*
*
3001.304
[Amended]
9. Amend section 3001.304 in
paragraph (a) by adding the words
‘‘Department of’’ before the words
‘‘Homeland Security’’ in the first
sentence.
■
3001.403
[Amended]
10. Amend section 3001.403 by
removing the word ‘‘deviation’’ in the
first sentence and adding the word
’’deviations’’ in its place.
■
3001.602–3
[Amended]
11. Amend section 3001.602–3 by
removing the words ‘‘Department of
Homeland Security (DHS)’’ in the first
sentence and adding in their place
‘‘DHS’’.
■
PART 3002—DEFINITIONS OF WORDS
AND TERMS
12. Amend section 3002.101 by
removing the definition of ‘‘Simplified
acquisition threshold’’ and revising the
definitions of ‘‘Component’’, ‘‘Head of
the Contracting Activity (HCA)’’,
‘‘Senior Procurement Executive (SPE)’’,
and the introductory paragraph of the
‘‘Sensitive Information’’ definition to
read as follows:
■
3002.101
Definitions.
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Component means the following
entities for purposes of this chapter:
(1) DHS Management (MGMT),
including the Office of Procurement
Operations (OPO) and the Office of
Selective Acquisitions (OSA);
(2) Federal Emergency Management
Agency (FEMA);
(3) Federal Law Enforcement Training
Center (FLETC);
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(4) Transportation Security
Administration (TSA);
(5) U.S. Coast Guard (USCG);
(6) U.S. Customs and Border
Protection (CBP);
(7) U.S. Immigration and Customs
Enforcement (ICE); and
(8) U.S. Secret Service (USSS).
*
*
*
*
*
Head of the Contracting Activity
(HCA) means the official who has
overall responsibility for managing the
contracting activity. For DHS, the HCAs
are:
(1) Director, Office of Procurement
Operations (OPO);
(2) Director, Office of Selective
Acquisitions (OSA);
(3) Director, Office of Acquisition
Management (FEMA);
(4) Chief, Procurement Division
(FLETC);
(5) Assistant Administrator for
Acquisition (TSA);
(6) Director of Contracting and
Procurement (USCG);
(7) Executive Director, Procurement
(CBP);
(8) Director, Office of Acquisition
Management (ICE); and
(9) Chief, Procurement Operations
(USSS).
*
*
*
*
*
Senior Procurement Executive (SPE)
for the Department of Homeland
Security means the DHS Chief
Procurement Officer (CPO), who is the
individual appointed pursuant to 41
U.S.C. 1702 to be responsible for
management direction of the
procurement system of DHS, including
implementation of the unique
procurement policies, regulations, and
standards of DHS.
Sensitive Information, as used in this
Chapter, means any information which
if lost, misused, disclosed, or, without
authorization, is accessed or modified,
could adversely affect the national or
homeland security interest, the conduct
of Federal programs, or the privacy to
which individuals are entitled under 5
U.S.C. 552a (the Privacy Act), but which
has not been specifically authorized
under criteria established by an
Executive Order or an Act of Congress
to be kept secret in the interest of
national defense, homeland security or
foreign policy. This definition includes
the following categories of information:
*
*
*
*
*
3002.270
[Amended]
13. Amend the abbreviation list entry
in section 3002.270 by removing ‘‘HCA
Head of Contracting Activity’’ and
adding in its place ’’HCA Head of the
Contracting Activity’’.
■
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50633
PART 3003—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
14. Revise section 3003.101–3 to read
as follows:
■
3003.101–3
Agency regulations.
The United States Office of
Government Ethics has promulgated
regulations applicable to the entire
Executive Branch that address the
conduct matters referenced in (FAR) 48
CFR 3.101–3. See 5 CFR vol. 3, ch. XVI,
subch. B. The Department of Homeland
Security has also issued Management
Directive 0480.1, Ethics/Standards of
Conduct.
15. Revise section 3003.204 to read as
follows:
■
3003.204
Treatment of violations.
(a) The HCA is the official designated
to make the determination under (FAR)
48 CFR 3.204(a) whether a gratuities
violation has occurred. If the HCA has
been personally and substantially
involved in the specific procurement,
the advice of legal counsel should be
sought to determine whether the CPO
should designate an alternate decision
maker.
(b) The HCA shall ensure that the
hearing procedures required by (FAR)
48 CFR 3.204(b) are afforded to the
contractor. Legal counsel shall be
consulted regarding the appropriateness
of the hearing procedures that are
established.
(c) If the HCA determines that the
alleged gratuities violation occurred the
HCA shall consult with legal counsel
regarding appropriate action and notify
the Office of Inspector General.
16. Add Subpart 3003.10 to read as
follows:
■
Subpart 3003.10—Contractor Code of
Business Ethics and Conduct
Sec.
3003.1003 Requirements.
3003.1004 Contract clauses.
Subpart 3003.10—Contractor Code of
Business Ethics and Conduct
3003.1003
Requirements.
(a) Contractor requirements.
Contractors making written disclosures
under the clause at (FAR) 48 CFR
52.203–13 must use the electronic
Contractor Disclosure Form at https://
www.oig.dhs.gov. Contractors making
disclosures under contracts which do
not contain the clause at (FAR) 48 CFR
52.203–13 are encouraged to also use
this electronic form.
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Contract clauses.
(a) The contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.203–
70, Instructions for Contractor
Disclosure of Violations, in solicitations
and contracts containing the clause at
(FAR) 48 CFR 52.203–13.
PART 3004—Administrative Matters
17. Amend section 3004.470–2 by
revising paragraph (a) to read as follows:
■
3004.470–2
Policy.
(a) DHS’s policies and procedures on
contractor personnel security
requirements are set forth in various
management directives (MDs),
Directives, and Instructions. MD
11042.1, Safeguarding Sensitive But
Unclassified (For Official Use Only)
Information describes how contractors
must handle sensitive but unclassified
information. The DHS Sensitive
Systems Policy Directive 4300A and the
DHS 4300A Sensitive Systems
Handbook, provide the policies and
procedures on security for Information
Technology resources. Compliance with
these policies and procedures, as
amended, is required.
*
*
*
*
*
3004.470–3
[Amended]
18. Amend section 3004.470–3 in
paragraph (b) in the second sentence by
removing the word ‘‘Officers’’ and
adding ‘‘officers’’ in its place.
■
3004.804–1
■
[Removed]
19a. Remove section 3004.804–1.
19b. In section 3004.804–570, revise
paragraphs (a)(1) through (a)(3) to read
as follows:
■
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3004.804–570
documents.
(a) * * *
(1) DHS Form 700–3, Contractor’s
Release (e.g., see (FAR) 48 CFR 52.216–
7);
(2) DHS Form 700–2, Contractor’s
Assignment of Refunds, Rebates, Credits
and Other amounts (e.g., see (FAR) 48
CFR 52.216–7);
(3) DHS Form 700–1, Cumulative
Claim and Reconciliation Statement
(e.g., see (FAR) 48 CFR 4.804–5(a)(13));
and
*
*
*
*
*
PART 3005—PUBLICIZING CONTRACT
ACTIONS
20. Amend Subpart 3005.4 by adding
sections 3005.470, 3005.470–1, and
3005.470–2 to read as follows:
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3005.470–1
Policy.
(a) DHS policy requires its contracting
officers to restrict DHS contractors from
referring to its DHS contract(s) in
commercial advertising in a manner that
states or implies the Government
approves or endorses the contractor’s
products or services or considers them
superior to other products or services.
The intent of this policy is to prevent
the appearance of Government bias
toward any product or service.
(b) The Department’s contractors
share the responsibility for protecting
sensitive and classified information
related to efforts under their contracts.
For any contract that involves sensitive
or classified information, prior to the
release of any contract award
announcement, advertisement, or other
release of information pertaining to the
contract, the contractor must obtain the
approval of the responsible contracting
officer.
3005.470–2
Contract clauses.
(a) Insert the clause at (HSAR) 48 CFR
3052.205–70, Advertisements,
Publicizing Awards, and Releases, in all
solicitations and contracts that exceed
the simplified acquisition threshold.
(b) Except for research contracts with
educational institutions, if the contract
involves sensitive or classified
information, use the clause with its
Alternate I. For research contracts with
educational institutions, see (HSAR) 48
CFR 3035.70–2(b).
PART 3006—COMPETITION
REQUIREMENTS
21. Amend subpart 3006.3 by adding
sections 3006.302–1, 3006.302–270,
3006.303, 3006.303–270, 3006.304, and
3006.304–70 to read as follows:
■
Supporting closeout
■
3005.470 Contractor award
announcements, advertisements, and
releases.
Subpart 3006.3—Other Than Full and
Open Competition
*
*
*
*
*
3006.302–1 Only one responsible source
and no other supplies or services will
satisfy agency requirements.
3006.302–270 Unusual and compelling
urgency.
*
*
*
*
*
3006.303 Justifications.
3006.303–270 Content.
3006.304 Approval of justification.
3006.304–70 DHS Approval of justification.
one source is available to provide
additional units or replacement items
under a specific make and model
requirement, but only where the CPO
has determined in accordance with the
agency’s standardization program that
only the specific make(s) and model(s)
will satisfy the agency’s needs.
3006.302–270
urgency.
Unusual and compelling
(d)(1)(iii) For contract awards to
facilitate the response to or recovery
from a natural disaster, act of terrorism,
or other man-made disaster, that relies
on this exception, the period of
performance shall be limited to the
minimum period necessary to meet the
urgent and compelling requirements of
the work to be performed and to enter
into another contract for the required
goods or services through the use of
competitive procedures, but in no event
shall the period of performance exceed
150 days, unless the Head of the
Contracting Activity (or higher approval
authority if required by (FAR) 48 CFR
6.304 or DHS procedures) determines
that exceptional circumstances apply,
approving the justification as set forth in
(HSAR) 48 CFR 3006.304. The
limitation on the period of performance
applies to contracts awarded in
response to, or to recovery from:
(A) A major disaster or emergency
declared by the President under Title IV
or Title V of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, as amended (42 U.S.C.
5121–5207) (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations);
(B) An uncontrolled fire or fire
complex, threatening such destruction
as would constitute a major disaster,
and for which the Federal Emergency
Management Agency has approved a fire
management assistance declaration in
accordance with regulatory criteria at 44
CFR 204.21 (see https://www.fema.gov/
news/disasters.fema#sev2 for a list of
declarations); or
(C) An incident for which the
National Operations Center (NOC),
through the National Response
Coordination Center (NRCC),
coordinates the activation of the
appropriate Emergency Support
Functions and the Secretary of
Homeland Security has designated a
Federal Resource Coordinator (FRC) to
manage Federal resource support.
*
*
*
*
*
3006.302–1 Only one responsible source
and no other supplies or services will
satisfy agency requirements.
3006.303
(b)(4) The contracting officer may rely
on this exception in the case where only
(a)(9)(iv) For a proposed contract
subject to the restrictions of (HSAR) 48
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Justifications.
3006.303–270
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Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations
CFR 3006.302–270(d)(1)(iii) and where
(FAR) 48 CFR 6.302–2 is cited as the
authority, the exceptional circumstances
allowing for an award for a period of
performance in excess of 150 days.
3006.304
Approval of justification.
3006.304–70
DHS Approval of justification.
A justification for other than full and
open competition that cites (FAR) 48
CFR section 6.302–2 as its authority
shall be approved in writing by the HCA
(unless a higher approval authority is
required in accordance with (FAR) 48
CFR section 6.304 or DHS procedures)
for a proposed DHS contract to facilitate
the response to or recovery from a
natural disaster, act of terrorism, or
other man-made disaster with a period
of performance in excess of 150 days.
The justification should make plain the
exceptional circumstances that justify
the duration of the contract. This
authority may not be redelegated by the
HCA.
■
22. Add part 3012 to read:
PART 3012—ACQUISITION OF
COMMERCIAL ITEMS
3018.109
Priorities and allocations.
DHS Components may assign priority
ratings on contracts and orders as
authorized by the Defense Priorities and
Allocation System (DPAS). (See (HSAR)
48 CFR 3011.602.)
PART 3022—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
24. Amend section 3022.406–9(c)(1)
by removing ‘‘DHS Form 0700–04’’ and
adding in its place ‘‘DHS Form 700–4’’.
■
3035.70–1
[Removed]
26b. Add section 3023.1004 to read as
follows:
■
3023.1004
3012.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
(f) Solicitation provisions and
contract clauses. Insert (HSAR) 48 CFR
3052.212–70, Contract Terms and
Conditions Applicable to DHS
Acquisition of Commercial Items, in any
solicitation or contract for commercial
items when any of the provisions or
clauses listed therein applies and where
incorporation by reference of each
selected provision or clause is, to the
maximum extent practicable, consistent
with customary commercial practice. If
necessary, tailor this clause.
PART 3035—RESEARCH AND
DEVELOPMENT CONTRACTING
25. Amend Part 3023 by revising the
heading to read as set forth above.
*
*
*
*
*
■
26a. Amend subpart 3023.10 by
removing section 3023.1002.
Authority: 5 U.S.C. 301–302, 41 U.S.C.
1707, 41 U.S.C. 1702, 48 CFR part 1, subpart
1.3, and DHS Delegation Number 0702.
To ensure that classified information
is protected and appropriate security
measures are coordinated as required,
protests involving classified
solicitations issued by the Office of
Selective Acquisitions (OSA) shall be
submitted directly to the contracting
officer for further transmission to the
GAO, the United States Court of Federal
Claims, or for internal resolution in the
case of agency protests. Specific
instructions will be provided in Section
L of the solicitation.
3035.7000
■
Sec.
3012.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
3033.102–90 Protests on classified
solicitations (OSA).
PART 3023—ENVIRONMENT, ENERGY
AND WATER EFFICIENCY,
RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL
SAFETY, AND DRUG-FREE
WORKPLACE
3023.1002
Subpart 3012.3—Solicitation
Provisions and Contract Clauses for
the Acquisition of Commercial Items
Requirements.
DHS Directive 023–02 Environmental
Compliance Program provides guidance
and direction for compliance with
environmental laws, regulations and
executive orders. DHS Directive 025–01,
Sustainable Practices for Environmental,
Energy and Transportation, provides
guidance and direction for compliance
with green purchasing and other
sustainable practices contained in
Executive Order 13423. Contracting
officers shall ensure that solicitations
and contracts contain appropriate
sustainable practices requirements,
provisions and clauses. Contractors
shall support the DHS Environmental
Policy by taking appropriate actions to
eliminate or reduce their impacts on the
environment.
PART 3033—PROTESTS, DISPUTES,
AND APPEALS
23. Add part 3018 to read:
[Removed]
28a. Amend subpart 3035.70 by
removing section 3035.7000.
■
28b. Add sections 3035.70–1 and
3035.70–2 to read as follows:
■
Policy.
The Department of Homeland
Security (DHS) desires widespread
dissemination of the results of funded
non-sensitive research. The Contractor,
therefore, may publish (subject to the
provisions of the ‘‘Data Rights’’ and
‘‘Patent Rights’’ clauses of the contract)
research results in professional journals,
books, trade publications, or other
appropriate media.
3035.70–2
Contract clause.
(a) The contracting officer shall use
the clause at (HSAR) 48 CFR 3052.235–
70, Dissemination of Information—
Educational Institutions, in contracts
with educational institutions for
research that is not sensitive or
classified.
(b) If the contract involves sensitive or
classified research, the contracting
officer shall prepare and insert a Special
Contract Requirement that conditions
dissemination upon the approval of a
designated Government official.
PART 3036—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
3036.201
■
[Removed]
29. Remove section 3036.201.
■
■
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Authority: 5 U.S.C. 301–302, 41 U.S.C.
1707, 41 U.S.C. 1702, 48 CFR part 1, subpart
1.3, and DHS Delegation Number 0702.
27. Amend part 3033 by adding
subpart 3033.1 to read as follows:
PART 3018—EMERGENCY
ACQUISITIONS
Subpart 3018.1—Available Acquisition
Flexibilities
Sec.
3018.109
Priorities and allocations.
VerDate Mar<15>2010
15:22 Aug 21, 2012
Jkt 226001
50635
PART 3042—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
Subpart 3033.1—Protests
Subpart 3042.2
Sec.
3033.102 General.
3033.102–90 Protests on classified
solicitations (OSA).
■
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[Removed]
30. Remove subpart 3042.2.
31. Revise section 3042.1502 to read
as follows:
■
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50636
3042.1502
Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations
Policy.
(a) Components shall use the
Contractor Performance Assessment
Reporting System (CPARS) or other
performance reporting system as
designated by the DHS Chief
Procurement Officer for evaluating
contractor performance in accordance
with (FAR) 48 CFR sections 42.1502 and
42.1503.
(e) Components shall use the
Construction Contractor Appraisal
Support System (CCASS) module of
CPARS, or other performance reporting
system as designated by the DHS Chief
Procurement Officer for evaluating
construction contractor performance in
accordance with (FAR) 48 CFR sections
42.1502 and 42.1503.
(f) Components shall use the
Architect-Engineer Contract
Administration Support System
(ACASS) module of CPARS or other
performance reporting system as
designated by the DHS Chief
Procurement Officer for evaluating
architect-engineer contractor
performance in accordance with (FAR)
48 CFR sections 42.1502 and 42.1503.
PART 3045—[REMOVED AND
RESERVED]
35–36. Amend section 3052.204–71:
a. By capitalizing the first letter of
every occurrence of the words
‘‘contractor’’ and ‘‘government’’ and by
revising paragraph (a) of the clause; and
■ b. In Alternate I by capitalizing the
first letters of every occurrence of the
words ‘‘contractor’’ and ‘‘contracting
officer’’ in the alternate content, by
removing paragraph (k)(1) of the
alternate and renumbering paragraphs
(k)(2) and (3) to (k)(1) and (2)
respectively, and by revising the date of
Alternate I.
The revisions read as follows:
■
■
3052.204–71
([DATE])
32. Under the authority of 5 U.S.C.
301–302, part 3045 is removed and
reserved.
■
PART 3052—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
33. Amend section 3052.101 by
adding the following note:
■
Subpart 3052.1—Instructions for Using
Provisions and Clauses
Sec.
3052.101
3052.101
paragraph (b)(3), the Contractor shall
use the Contractor Disclosure Form at
https://www.oig.dhs.gov and submit the
disclosure electronically to the
Department of Homeland Security
Office of Inspector General. The
Contractor shall provide a copy of the
disclosure to the Contracting Officer by
email or facsimile on the same business
day as the submission to the Office of
Inspector General. The Contractor shall
provide the Contracting Officer a
concurrent copy of any supporting
materials submitted to the Office of
Inspector General.
Using Part 3052.
Using Part 3052.
Note to 3052.101: The solicitation
provisions and contract clauses matrix
referencing all HSAR provisions and clauses
is available at https://www.dhs.gov/xopnbiz/
under Policy and Regulations, Homeland
Security Acquisition Regulation (HSAR).
Contractor employee access
(a) Sensitive Information, as used in
this clause, means any information,
which if lost, misused, disclosed, or,
without authorization is accessed, or
modified, could adversely affect the
national or homeland security interest,
the conduct of Federal programs, or the
privacy to which individuals are
entitled under section 552a of title 5,
United States Code (the Privacy Act),
but which has not been specifically
authorized under criteria established by
an Executive Order or an Act of
Congress to be kept secret in the interest
of national defense, homeland security
or foreign policy. This definition
includes the following categories of
information:
*
*
*
*
*
‘‘Alternate I ([DATE])’’
*
*
*
*
*
34. Amend subpart 3052.2 by adding
3052.203–70 to read:
■
3052.203–70 Instructions for Contractor
Disclosure of Violations.
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■
3052.205–70 Advertisements, Publicizing
Awards, and Releases.
As prescribed in (HSAR) 48 CFR
3003.1004(a), insert the following
clause:
As prescribed in (HSAR) 48 CFR
3005.470–2, insert the following clause:
Instructions for Contractor Disclosure
of Violations ([DATE])
Advertisements, Publicizing Awards, and
Releases ([DATE])
The Contractor shall not refer to this
contract in commercial advertising or similar
promotions in such a manner as to state or
When making a written disclosure
under the clause at FAR 52.203–13,
VerDate Mar<15>2010
15:22 Aug 21, 2012
Jkt 226001
37. Amend subpart 3052.2 by adding
3052.205–70 to read as follows:
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imply that the product or service provided is
endorsed or preferred by the Federal
Government or is considered by the
Government to be superior to other products
or services.
(End of clause)
Alternate I ([DATE]). If a contract involves
sensitive or classified information, designate
the paragraph in the base clause as (a) and
add the following paragraph (b) to the clause:
(b) All advertisements, releases,
announcements, or other publication
regarding this contract or the agency
programs and projects covered under it, or
the results or conclusions made pursuant to
performance, must be approved by the
Contracting Officer. Under no circumstances
shall the Contractor, or anyone acting on
behalf of the Contractor, refer to the supplies,
services, or equipment furnished pursuant to
the provisions of this contract in any
publicity, release, or commercial advertising
without first obtaining explicit written
consent to do so from the Contracting Officer.
(End of clause)
■ 38. Amend subpart 3052.2 by adding
section 3052.212–70 to read as follows:
3052.212–70 Contract Terms and
Conditions Applicable to DHS Acquisition
of Commercial Items. As prescribed in
(HSAR) 48 CFR 3012.301, insert the
following clause:
Contract Terms and Conditions Applicable
to DHS Acquisition of Commercial Items
([DATE])
The Contractor agrees to comply with any
provision or clause that is incorporated
herein by reference to implement agency
policy applicable to acquisition of
commercial items or components. The
provision or clause in effect based on the
applicable regulation cited on the date the
solicitation is issued applies unless
otherwise stated herein. The following
provisions and clauses are incorporated by
reference: [The Contracting Officer should
either check the provisions and clauses that
apply or delete the provisions and clauses
that do not apply from the list. The
Contracting Officer may add the date of the
provision or clause if desired for clarity.]
(a) Provisions.
ll3052.209–72 Organizational Conflicts
of Interest.
ll3052.216–70 Evaluation of Offers
Subject to An Economic Price Adjustment
Clause.
ll3052.219–72 Evaluation of Prime
Contractor Participation in the DHS Mentor
´ ´
Protege Program.
(b) Clauses.
ll3052.203–70 Instructions for Contractor
Disclosure of Violations.
ll3052.204–70 Security Requirements for
Unclassified Information Technology
Resources.
ll3052.204–71 Contractor Employee
Access.
llAlternate I
ll3052.205–70 Advertisement,
Publicizing Awards, and Releases.
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Federal Register / Vol. 77, No. 163 / Wednesday, August 22, 2012 / Rules and Regulations
ll3052.209–73 Limitation on Future
Contracting.
ll3052.215–70 Key Personnel or
Facilities.
ll3052.216–71 Determination of Award
Fee.
ll3052.216–72 Performance Evaluation
Plan.
ll3052.216–73 Distribution of Award
Fee.
ll3052.217–91 Performance. (USCG)
ll3052.217–92 Inspection and Manner of
Doing Work. (USCG)
ll3052.217–93 Subcontracts. (USCG)
ll3052.217–94 Lay Days. (USCG)
ll3052.217–95 Liability and Insurance.
(USCG)
ll3052.217–96 Title. (USCG)
ll3052.217–97 Discharge of Liens.
(USCG)
ll3052.217–98 Delays. (USCG)
ll3052.217–99 Department of Labor
Safety and Health Regulations for Ship
Repair. (USCG)
ll3052.217–100 Guarantee. (USCG)
ll3052.219–70 Small Business
Subcontracting Plan Reporting.
´ ´
ll3052.219–71 DHS Mentor Protege
Program.
ll3052.228–70 Insurance.
ll3052.228–90 Notification of Miller Act
Payment Bond Protection. (USCG)
ll3052.228–91 Loss of or Damage to
Leased Aircraft. (USCG)
ll3052.228–92 Fair Market Value of
Aircraft. (USCG)
ll3052.228–93 Risk and Indemnities.
(USCG)
ll3052.236–70 Special Provisions for
Work at Operating Airports.
ll3052.242–72 Contracting Officer’s
Technical Representative.
ll3052.247–70 F.o.B. Origin Information.
llAlternate I
llAlternate II
ll3052.247–71 F.o.B. Origin Only.
ll3052.247–72 F.o.B. Destination Only.
PART 3053—FORMS
43. Amend section 3053.204–70 by
revising paragraphs (a) through (c) to
read as follows:
■
3053.204–70
Administrative matters.
*
*
*
*
*
(a) DHS Form 700–1, Cumulative
Claim and Reconciliation Statement.
(See (HSAR) 48 CFR 3004.804–
570(a)(3).)
(b) DHS Form 700–2, Contractor’s
Assignment of Refunds, Rebates, Credits
and Other Amounts. (See (HSAR) 48
CFR 3004.804–570(a)(2).)
(c) DHS Form 700–3, Contractor
Release. (See (HSAR) 48 CFR 3004.804–
570(a)(1).)
3053.222–70
[Amended]
44. Amend section 3053.222–70 by
removing ‘‘DHS Form 0700–04’’ in the
last line and adding ‘‘DHS Form 700–4’’
in its place.
■
3053.303
[Amended]
45. Amend section 3053.303 by
removing ‘‘DHS Form 0700–01’’, ‘‘DHS
Form 0700–02’’, ‘‘DHS Form 0700–03’’,
and ‘‘DHS Form 0700–04’’ from the
table in the ‘‘Form No.’’ column, and
adding in their place, respectively ‘‘DHS
Form 700–1’’, ‘‘DHS Form 700–2’’,
‘‘DHS Form 700–3’’, and ‘‘DHS Form
700–4’’; and by removing the whole
entry for ‘‘Contractor Report of
Government Property/DHS Form 0700–
05.’’
■
3053.245–70
[Removed and Reserved]
46. Remove and reserve section
3053.245–70.
■
[FR Doc. 2012–20440 Filed 8–21–12; 8:45 am]
BILLING CODE 9110–9B–P
(End of clause)
3052.216–71
DEPARTMENT OF TRANSPORTATION
39. Amend section 3052.216–71,
Determination of Award Fee by
removing the words ‘‘(DEC 2003)’’ from
the title of the clause, adding in their
place the words ‘‘([DATE])’’ and by
removing paragraph (d).
[Amended]
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National Highway Traffic Safety
Administration
[Docket No. NHTSA–2012–0080; Notice 2]
40. Amend section 3052.235–70 by
removing the words ‘‘48 CFR
3035.7000’’ in the introductory
paragraph and adding in their place the
reference to ‘‘48 CFR 3035.70–2.’’
Schedule of Fees Authorized
3052.242–71
SUMMARY:
■
[Removed]
41. Remove section 3052.242–71.
3052.245–70
[Removed]
42. Remove section 3052.245–70.
VerDate Mar<15>2010
15:22 Aug 21, 2012
The amendments established by
this final rule will become effective on
October 1, 2012. Petitions for
reconsideration must be received by
NHTSA not later than October 9, 2012.
Jkt 226001
National Highway Traffic
Safety Administration (NHTSA), DOT.
ACTION: Final rule.
AGENCY:
This document adopts fees for
Fiscal Year 2013 and until further
notice, as authorized by 49 U.S.C.
30141, relating to the registration of
importers and the importation of motor
vehicles not certified as conforming to
PO 00000
Frm 00077
Fmt 4700
Petitions for reconsideration
of this final rule should refer to the
docket and notice numbers identified
above and be submitted to:
Administrator, National Highway
Traffic Safety Administration, 1200 New
Jersey Avenue SE., West Building,
Washington, DC 20590. It is requested,
but not required, that 10 copies of the
petition be submitted. The petition must
be received not later than 45 days after
publication of this final rule in the
Federal Register. Petitions filed after
that time will be considered petitions
filed by interested persons to initiate
rulemaking pursuant to 49 U.S.C.
chapter 301.
ADDRESSES:
49 CFR Part 594
RIN 2127–AL09
■
■
the Federal motor vehicle safety
standards (FMVSS). These fees are
needed to maintain the registered
importer (RI) program.
We are increasing the fees for the
registration of a new RI from $795 to
$805 and the annual fee for renewing an
existing registration from $670 to $676.
The fee to reimburse Customs for
conformance bond processing costs will
decrease from $9.93 to $9.09 per bond.
The fee for the review, processing,
handling, and disbursement of cash
deposits that are submitted in lieu of a
conformance bond will decrease from
$514 to $495. We are decreasing the fees
for the importation of a vehicle covered
by an import eligibility decision made
on an individual model and model year
basis. For vehicles determined eligible
based on their substantial similarity to
a U.S. certified vehicle, the fee will
decrease from $158 to $101. For
vehicles determined eligible based on
their capability of being modified to
comply with all applicable FMVSS, the
fee will also decrease from $158 to $101.
The fee for the inspection of a vehicle
will remain $827. The fee for processing
a conformity package will decrease from
$17 to $12. If the vehicle has been
entered electronically with Customs
through the Automated Broker Interface
(ABI) and the RI has an email address,
the fee for processing the conformity
package will continue to be $6,
provided the fee is paid by credit card.
If NHTSA finds that the information in
the entry or the conformity package is
incorrect, the processing fee will remain
$57, representing the fee that is
currently charged when there are one or
more errors in the ABI entry or
omissions in the statement of
conformity.
DATES:
[Amended]
■
3052.235–70
50637
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]]>Agencies
[Federal Register Volume 77, Number 163 (Wednesday, August 22, 2012)]
[Rules and Regulations]
[Pages 50631-50637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20440]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
48 CFR Parts 3001, 3002, 3003, 3004, 3005, 3006, 3012, 3018, 3022,
3023, 3033, 3035, 3036, 3042, 3045, 3052, and 3053
[Docket No. DHS-2009-0085]
RIN 1601-AA28
Homeland Security Acquisition Regulation (HSAR); Revision
Initiative [HSAR Case 2009-002]
AGENCY: Office of the Chief Procurement Officer, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DHS is issuing a final rule amending multiple sections of the
Homeland Security Acquisition Regulation (HSAR). These amendments align
existing content with the Federal Acquisition Regulation (FAR);
implement Section 695 of the Post-Katrina Emergency Management Reform
Act of 2006 by restricting the length of certain noncompetitive
contracts entered into by the Department of Homeland Security to
facilitate the response to or recovery from a natural disaster, act of
terrorism, or other manmade disaster; clarify agency acquisition
regulations; and make editorial corrections.
DATES: Effective Date: September 21, 2012.
FOR FURTHER INFORMATION CONTACT: Teresa McConahie, Office of the Chief
Procurement Officer, Department of Homeland Security, (202) 447-0271.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Final Rule
III. Regulatory Analyses
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Executive Order 13132 (Federalism)
E. National Environmental Policy Act
I. Background
This final rule amends the Department's acquisition regulation
which was initially issued in 2003. 68 FR 67871 (Dec. 4, 2003), as
amended at 71 FR 25767 (May 2, 2006). On September 13, 2010, DHS
published a notice of proposed rulemaking NPRM, with a public comment
period ending on November 12, 2010. 75 FR 55529. DHS received no public
comments on this NPRM. DHS is now adopting the proposed rule, with
minor changes, as final.
II. Discussion of Final Rule
In the NPRM, DHS proposed various changes to the Homeland Security
Acquisition Regulations (HSAR), including changes to 48 CFR part 3006
implementing section 695 of the Post-Katrina Emergency Management
Reform Act of 2006 (PKEMRA), Public Law 109-295, 120 Stat. 1394, 1460
(Oct. 4, 2006). This final rule implements the majority of the changes
described in the ``Discussion of Proposed Rule'' section of the NPRM.
See 75 FR 55530-55532.
Additionally, as a result of further internal review, DHS is making
several minor changes to the proposed rule in this final rule. The
changes are administrative in nature and do not change the substance of
the rule. The changes to the proposed rule include: (1) Adding an ``s''
to the word ``System'' in the phrase ``DHS Sensitive System Handbook''
at 3004.470-2; changing the phrase ``DHS legal counsel'' to ``legal
counsel'' at 3003.204-(a); and correcting the citation at 3003.1003(a)
to read ``(FAR) 48 CFR 52.203-13'' in place of ``(FAR) 49 CFR 52.203-
13''. DHS is correcting these inadvertent typographical errors to
ensure the final rule is clear and precise.
DHS is also making a technical change by removing the proposed
change at (HSAR) section 3009.403 designating the DHS Heads of
Contracting Activity as the DHS Suspension and Debarment Officials. The
Secretary of Homeland Security has approved a new Suspension and
Debarment program which eliminates the Heads of the Contracting
Activities as Suspension and Debarment Officials. The change in the
proposed rule is no longer necessary and is not included in this final
rule.
DHS is also correcting the title of the FEMA HCA at 3002.101 to
read ``Director, Office of Acquisition Management (FEMA)'' in place of
``Director, Procurement (FEMA)''. This change is necessary due to a
change in the naming convention for this office.
In the NPRM, DHS proposed to delete paragraph (d) of clause
3052.216-71, Determination of Award Fee, to align the HSAR with the OMB
guidance, Appropriate Use of Incentive Contracts (Dec. 4, 2007). This
final rule also revises the date of the entire clause to distinguish
the existing version of the clause from the revised version.
The NPRM also proposed the inclusion of paragraph (k)(1) of
3052.204-71 Alternate I regarding contractor employee access. In this
final rule, the proposed change to paragraph (k)(1) is not included
because a similar provision already exists at (HSAR) 3004.470-2, citing
to the DHS Sensitive Systems Policy Directive 4300A and the DHS 4300A
Sensitive Systems Handbook both of which address contractor employee
access.
Throughout this final rule, references to Title 41 of the United
States Code have been revised to reflect the recodification of Title 41
under Public Law 111-350, January 4, 2011.
III. Regulatory Analyses
A. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
This is not a significant regulatory action under Section 6(b) of
Executive Order 12866, as supplemented by Executive Order 13563, and
the Office of Management and Budget has not reviewed this final rule.
This final rule is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the term
``small entities'' comprises of small businesses, not for profit
organizations that are independently owned and operated and are not
dominant in their fields, and government jurisdictions with populations
of less than 50,000. DHS certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory
[[Page 50632]]
Flexibility Act because the rule applies to internal approval
procedures, supplements the Federal Acquisition Regulations, and is
intended to clarify or eliminate existing agency acquisition
regulations and policies.
C. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval any reporting requirements
inherent in a rule. The Paperwork Reduction Act applies to this final
rule. However, the information collection requirements imposed by the
provisions 3052.205-70 and 3052.212-70 are currently covered by the
approved information collection requirements for provisions (OMB
Clearance numbers 1600-0003, Post-Contract Award Information, and 1600-
0005, Solicitation of Proposal Information for Award of Public
Contracts). DHS considers that any changes due to the use of these
clauses will be within the estimated hours for the existing approved
OMB clearance. The clause at 3052.203-70 does not create a new
information collection requirement. It provides a format for
contractors to use when making a disclosure under FAR 3.1003 and
52.203-13. The FAR disclosure requirements are approved under OMB
Clearance Number 9000-0164.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Use of these two
information collections, 1600-0003 and 1600-0005, has been approved by
OMB until January 31, 2012, and February 28, 2015, respectively. The
extension for 1600-0003 is currently under review at OMB.
D. Executive Order 13132 (Federalism)
This final rule will not have substantial direct effect on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, DHS has determined that this rule does not
warrant the preparation of a federalism impact statement.
E. National Environmental Policy Act
We have analyzed this final rule under Department of Homeland
Security Management Directive 023-01 which guides the Department in
complying with the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321-4370f), and have made a determination this action is one of
a category of actions which do not individually or cumulatively have a
significant effect on the human environment. This rule, which does not
involve any extraordinary circumstances, is categorically excluded
under paragraphs A3(b) and A3(d) in Table I of Appendix A of Directive
023-01 because it implements legislation and amends acquisition
regulations without changing the regulations' environmental effect.
List of Subjects in 48 CFR Parts 3001, 3002, 3003, 3004, 3005,
3006, 3012, 3018, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052
and 3053
Government procurement.
Daniel L. Clever,
Deputy Chief Procurement Officer, Department of Homeland Security.
Accordingly, DHS amends 48 CFR parts 3001, 3002, 3003, 3004, 3005,
3006, 3012, 3018, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052, and
3053 as follows:
0
1. The authority citation for 48 CFR parts 3001, 3002, 3003, 3004,
3005, 3006, 3022, 3023, 3033, 3035, 3036, 3042, 3045, and 3053 is
revised to read as follows:
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48
CFR part 1, subpart 1.3, and DHS Delegation Number 0702.
PART 3001--FEDERAL ACQUISITION REGULATION SYSTEM
0
2. Amend Subpart 3001.1 by adding section 3001.103 to read as follows:
3001.103 Authority.
The HSAR is issued by DHS's Chief Procurement Officer, who is the
Senior Procurement Executive (SPE), see 41 U.S.C. 1702 and DHS
Delegation Number 0702, under authority of 5 U.S.C. 301-302, the Office
of Federal Procurement Policy Act, Pub. L. No. 93-400, 88 Stat. 796
(1974), including sections 22 and 25, 41 U.S.C. 1707, 1302 and 1303,
and (FAR) 48 CFR part 1, subpart 1.3.
0
3. Revise section 3001.105-2 to read as follows:
3001.105-2 Arrangement of regulations.
(a) General. The HSAR, which encompasses both Department-wide and
Component-unique guidance, conforms to the arrangement and numbering
system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is unique to a
Component contains the organization's acronym or abbreviation directly
following the title. The following acronyms and abbreviations apply:
DHS Management (MGMT), including the Office of Procurement
Operations (OPO) and the Office of Selective Acquisitions (OSA);
Federal Emergency Management Agency (FEMA);
Federal Law Enforcement Training Center (FLETC);
Transportation Security Administration (TSA);
U.S. Coast Guard (USCG);
U.S. Customs and Border Protection (CBP);
U.S. Immigration and Customs Enforcement (ICE); and
U.S. Secret Service (USSS).
0
4. Revise section 3001.105-3 to read as follows:
3001.105-3 Copies.
Official versions of the HSAR are available in the Code of Federal
Regulations, as supplemented and revised from time to time by the
Federal Register, both of which are available from the Government
Printing Office in paper and electronic form. The HSAR is also
available in electronic form at https://www.dhs.gov. A convenient but
unofficial up-to-date version of the HSAR is also available from the
Government Printing office at https://www.gpoaccess.gov/ecfr/.
The Homeland Security Acquisition Manual (HSAM), which complements the
HSAR, can also be found at https://www.dhs.gov.
0
5. In section 3001.301, revise paragraph (a)(1) to read as follows:
3001.301 Policy.
(a)(1) The HSAR is issued for Departmental guidance according to
the policy cited in (FAR) 48 CFR 1.301. The HSAR establishes uniform
Department of Homeland Security policies and procedures for all
acquisition activities within the Department of Homeland Security.
Component supplemental acquisition regulations to be inserted in the
HSAR as a HSAR supplement regulation must be reviewed and approved by
the Chief Procurement Officer (CPO) before the CPO authorizes and
submits the proposed content for publication in the Federal Register
under (FAR) 48 CFR part 1, subparts 1.3 and 1.5.
* * * * *
3001.301-70 [Amended]
0
6. Amend section 3001.301-70 in paragraph (a) introductory text by
removing ``20598'' and adding ``20528'' in its place.
0
7. In section 3001.301-71, revise paragraph (c) to read as follows:
[[Page 50633]]
3001.301-71 Effective Date.
* * * * *
(c) When required by law, contracting officers must modify existing
contracts to include HSAR changes. Otherwise, and where feasible,
contracting officers should consider using the Changes clause or other
suitable authority, to modify existing contracts to include HSAR
changes.
0
8. In section 3001.303, revise paragraph (a)(3) to read as follows:
3001.303 Publication and codification.
(a) * * *
(3) Coverage in HSAR chapter 30 that supplements the FAR will use
part, subpart, section, and subsection numbers ending in ``70'' through
``89''. A series of numbers beginning with ``70'' is used for
provisions and clauses (e.g., (HSAR) 48 CFR 3001.301-70).
* * * * *
3001.304 [Amended]
0
9. Amend section 3001.304 in paragraph (a) by adding the words
``Department of'' before the words ``Homeland Security'' in the first
sentence.
3001.403 [Amended]
0
10. Amend section 3001.403 by removing the word ``deviation'' in the
first sentence and adding the word ''deviations'' in its place.
3001.602-3 [Amended]
0
11. Amend section 3001.602-3 by removing the words ``Department of
Homeland Security (DHS)'' in the first sentence and adding in their
place ``DHS''.
PART 3002--DEFINITIONS OF WORDS AND TERMS
0
12. Amend section 3002.101 by removing the definition of ``Simplified
acquisition threshold'' and revising the definitions of ``Component'',
``Head of the Contracting Activity (HCA)'', ``Senior Procurement
Executive (SPE)'', and the introductory paragraph of the ``Sensitive
Information'' definition to read as follows:
3002.101 Definitions.
* * * * *
Component means the following entities for purposes of this
chapter:
(1) DHS Management (MGMT), including the Office of Procurement
Operations (OPO) and the Office of Selective Acquisitions (OSA);
(2) Federal Emergency Management Agency (FEMA);
(3) Federal Law Enforcement Training Center (FLETC);
(4) Transportation Security Administration (TSA);
(5) U.S. Coast Guard (USCG);
(6) U.S. Customs and Border Protection (CBP);
(7) U.S. Immigration and Customs Enforcement (ICE); and
(8) U.S. Secret Service (USSS).
* * * * *
Head of the Contracting Activity (HCA) means the official who has
overall responsibility for managing the contracting activity. For DHS,
the HCAs are:
(1) Director, Office of Procurement Operations (OPO);
(2) Director, Office of Selective Acquisitions (OSA);
(3) Director, Office of Acquisition Management (FEMA);
(4) Chief, Procurement Division (FLETC);
(5) Assistant Administrator for Acquisition (TSA);
(6) Director of Contracting and Procurement (USCG);
(7) Executive Director, Procurement (CBP);
(8) Director, Office of Acquisition Management (ICE); and
(9) Chief, Procurement Operations (USSS).
* * * * *
Senior Procurement Executive (SPE) for the Department of Homeland
Security means the DHS Chief Procurement Officer (CPO), who is the
individual appointed pursuant to 41 U.S.C. 1702 to be responsible for
management direction of the procurement system of DHS, including
implementation of the unique procurement policies, regulations, and
standards of DHS.
Sensitive Information, as used in this Chapter, means any
information which if lost, misused, disclosed, or, without
authorization, is accessed or modified, could adversely affect the
national or homeland security interest, the conduct of Federal
programs, or the privacy to which individuals are entitled under 5
U.S.C. 552a (the Privacy Act), but which has not been specifically
authorized under criteria established by an Executive Order or an Act
of Congress to be kept secret in the interest of national defense,
homeland security or foreign policy. This definition includes the
following categories of information:
* * * * *
3002.270 [Amended]
0
13. Amend the abbreviation list entry in section 3002.270 by removing
``HCA Head of Contracting Activity'' and adding in its place ''HCA Head
of the Contracting Activity''.
PART 3003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
14. Revise section 3003.101-3 to read as follows:
3003.101-3 Agency regulations.
The United States Office of Government Ethics has promulgated
regulations applicable to the entire Executive Branch that address the
conduct matters referenced in (FAR) 48 CFR 3.101-3. See 5 CFR vol. 3,
ch. XVI, subch. B. The Department of Homeland Security has also issued
Management Directive 0480.1, Ethics/Standards of Conduct.
0
15. Revise section 3003.204 to read as follows:
3003.204 Treatment of violations.
(a) The HCA is the official designated to make the determination
under (FAR) 48 CFR 3.204(a) whether a gratuities violation has
occurred. If the HCA has been personally and substantially involved in
the specific procurement, the advice of legal counsel should be sought
to determine whether the CPO should designate an alternate decision
maker.
(b) The HCA shall ensure that the hearing procedures required by
(FAR) 48 CFR 3.204(b) are afforded to the contractor. Legal counsel
shall be consulted regarding the appropriateness of the hearing
procedures that are established.
(c) If the HCA determines that the alleged gratuities violation
occurred the HCA shall consult with legal counsel regarding appropriate
action and notify the Office of Inspector General.
0
16. Add Subpart 3003.10 to read as follows:
Subpart 3003.10--Contractor Code of Business Ethics and Conduct
Sec.
3003.1003 Requirements.
3003.1004 Contract clauses.
Subpart 3003.10--Contractor Code of Business Ethics and Conduct
3003.1003 Requirements.
(a) Contractor requirements. Contractors making written disclosures
under the clause at (FAR) 48 CFR 52.203-13 must use the electronic
Contractor Disclosure Form at https://www.oig.dhs.gov. Contractors
making disclosures under contracts which do not contain the clause at
(FAR) 48 CFR 52.203-13 are encouraged to also use this electronic form.
[[Page 50634]]
3003.1004 Contract clauses.
(a) The contracting officer shall insert the clause at (HSAR) 48
CFR 3052.203-70, Instructions for Contractor Disclosure of Violations,
in solicitations and contracts containing the clause at (FAR) 48 CFR
52.203-13.
PART 3004--Administrative Matters
0
17. Amend section 3004.470-2 by revising paragraph (a) to read as
follows:
3004.470-2 Policy.
(a) DHS's policies and procedures on contractor personnel security
requirements are set forth in various management directives (MDs),
Directives, and Instructions. MD 11042.1, Safeguarding Sensitive But
Unclassified (For Official Use Only) Information describes how
contractors must handle sensitive but unclassified information. The DHS
Sensitive Systems Policy Directive 4300A and the DHS 4300A Sensitive
Systems Handbook, provide the policies and procedures on security for
Information Technology resources. Compliance with these policies and
procedures, as amended, is required.
* * * * *
3004.470-3 [Amended]
0
18. Amend section 3004.470-3 in paragraph (b) in the second sentence by
removing the word ``Officers'' and adding ``officers'' in its place.
3004.804-1 [Removed]
0
19a. Remove section 3004.804-1.
0
19b. In section 3004.804-570, revise paragraphs (a)(1) through (a)(3)
to read as follows:
3004.804-570 Supporting closeout documents.
(a) * * *
(1) DHS Form 700-3, Contractor's Release (e.g., see (FAR) 48 CFR
52.216-7);
(2) DHS Form 700-2, Contractor's Assignment of Refunds, Rebates,
Credits and Other amounts (e.g., see (FAR) 48 CFR 52.216-7);
(3) DHS Form 700-1, Cumulative Claim and Reconciliation Statement
(e.g., see (FAR) 48 CFR 4.804-5(a)(13)); and
* * * * *
PART 3005--PUBLICIZING CONTRACT ACTIONS
0
20. Amend Subpart 3005.4 by adding sections 3005.470, 3005.470-1, and
3005.470-2 to read as follows:
3005.470 Contractor award announcements, advertisements, and releases.
3005.470-1 Policy.
(a) DHS policy requires its contracting officers to restrict DHS
contractors from referring to its DHS contract(s) in commercial
advertising in a manner that states or implies the Government approves
or endorses the contractor's products or services or considers them
superior to other products or services. The intent of this policy is to
prevent the appearance of Government bias toward any product or
service.
(b) The Department's contractors share the responsibility for
protecting sensitive and classified information related to efforts
under their contracts. For any contract that involves sensitive or
classified information, prior to the release of any contract award
announcement, advertisement, or other release of information pertaining
to the contract, the contractor must obtain the approval of the
responsible contracting officer.
3005.470-2 Contract clauses.
(a) Insert the clause at (HSAR) 48 CFR 3052.205-70, Advertisements,
Publicizing Awards, and Releases, in all solicitations and contracts
that exceed the simplified acquisition threshold.
(b) Except for research contracts with educational institutions, if
the contract involves sensitive or classified information, use the
clause with its Alternate I. For research contracts with educational
institutions, see (HSAR) 48 CFR 3035.70-2(b).
PART 3006--COMPETITION REQUIREMENTS
0
21. Amend subpart 3006.3 by adding sections 3006.302-1, 3006.302-270,
3006.303, 3006.303-270, 3006.304, and 3006.304-70 to read as follows:
Subpart 3006.3--Other Than Full and Open Competition
* * * * *
3006.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
3006.302-270 Unusual and compelling urgency.
* * * * *
3006.303 Justifications.
3006.303-270 Content.
3006.304 Approval of justification.
3006.304-70 DHS Approval of justification.
3006.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
(b)(4) The contracting officer may rely on this exception in the
case where only one source is available to provide additional units or
replacement items under a specific make and model requirement, but only
where the CPO has determined in accordance with the agency's
standardization program that only the specific make(s) and model(s)
will satisfy the agency's needs.
3006.302-270 Unusual and compelling urgency.
(d)(1)(iii) For contract awards to facilitate the response to or
recovery from a natural disaster, act of terrorism, or other man-made
disaster, that relies on this exception, the period of performance
shall be limited to the minimum period necessary to meet the urgent and
compelling requirements of the work to be performed and to enter into
another contract for the required goods or services through the use of
competitive procedures, but in no event shall the period of performance
exceed 150 days, unless the Head of the Contracting Activity (or higher
approval authority if required by (FAR) 48 CFR 6.304 or DHS procedures)
determines that exceptional circumstances apply, approving the
justification as set forth in (HSAR) 48 CFR 3006.304. The limitation on
the period of performance applies to contracts awarded in response to,
or to recovery from:
(A) A major disaster or emergency declared by the President under
Title IV or Title V of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see https://www.fema.gov/news/disasters.fema#sev2 for a list of declarations);
(B) An uncontrolled fire or fire complex, threatening such
destruction as would constitute a major disaster, and for which the
Federal Emergency Management Agency has approved a fire management
assistance declaration in accordance with regulatory criteria at 44 CFR
204.21 (see https://www.fema.gov/news/disasters.fema#sev2 for a list of
declarations); or
(C) An incident for which the National Operations Center (NOC),
through the National Response Coordination Center (NRCC), coordinates
the activation of the appropriate Emergency Support Functions and the
Secretary of Homeland Security has designated a Federal Resource
Coordinator (FRC) to manage Federal resource support.
* * * * *
3006.303 Justifications.
3006.303-270 Content.
(a)(9)(iv) For a proposed contract subject to the restrictions of
(HSAR) 48
[[Page 50635]]
CFR 3006.302-270(d)(1)(iii) and where (FAR) 48 CFR 6.302-2 is cited as
the authority, the exceptional circumstances allowing for an award for
a period of performance in excess of 150 days.
3006.304 Approval of justification.
3006.304-70 DHS Approval of justification.
A justification for other than full and open competition that cites
(FAR) 48 CFR section 6.302-2 as its authority shall be approved in
writing by the HCA (unless a higher approval authority is required in
accordance with (FAR) 48 CFR section 6.304 or DHS procedures) for a
proposed DHS contract to facilitate the response to or recovery from a
natural disaster, act of terrorism, or other man-made disaster with a
period of performance in excess of 150 days. The justification should
make plain the exceptional circumstances that justify the duration of
the contract. This authority may not be redelegated by the HCA.
0
22. Add part 3012 to read:
PART 3012--ACQUISITION OF COMMERCIAL ITEMS
Subpart 3012.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Items
Sec.
3012.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48
CFR part 1, subpart 1.3, and DHS Delegation Number 0702.
3012.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) Solicitation provisions and contract clauses. Insert (HSAR) 48
CFR 3052.212-70, Contract Terms and Conditions Applicable to DHS
Acquisition of Commercial Items, in any solicitation or contract for
commercial items when any of the provisions or clauses listed therein
applies and where incorporation by reference of each selected provision
or clause is, to the maximum extent practicable, consistent with
customary commercial practice. If necessary, tailor this clause.
0
23. Add part 3018 to read:
PART 3018--EMERGENCY ACQUISITIONS
Subpart 3018.1--Available Acquisition Flexibilities
Sec.
3018.109 Priorities and allocations.
Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48
CFR part 1, subpart 1.3, and DHS Delegation Number 0702.
3018.109 Priorities and allocations.
DHS Components may assign priority ratings on contracts and orders
as authorized by the Defense Priorities and Allocation System (DPAS).
(See (HSAR) 48 CFR 3011.602.)
PART 3022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
24. Amend section 3022.406-9(c)(1) by removing ``DHS Form 0700-04'' and
adding in its place ``DHS Form 700-4''.
PART 3023--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
0
25. Amend Part 3023 by revising the heading to read as set forth above.
* * * * *
3023.1002 [Removed]
0
26a. Amend subpart 3023.10 by removing section 3023.1002.
0
26b. Add section 3023.1004 to read as follows:
3023.1004 Requirements.
DHS Directive 023-02 Environmental Compliance Program provides
guidance and direction for compliance with environmental laws,
regulations and executive orders. DHS Directive 025-01, Sustainable
Practices for Environmental, Energy and Transportation, provides
guidance and direction for compliance with green purchasing and other
sustainable practices contained in Executive Order 13423. Contracting
officers shall ensure that solicitations and contracts contain
appropriate sustainable practices requirements, provisions and clauses.
Contractors shall support the DHS Environmental Policy by taking
appropriate actions to eliminate or reduce their impacts on the
environment.
PART 3033--PROTESTS, DISPUTES, AND APPEALS
0
27. Amend part 3033 by adding subpart 3033.1 to read as follows:
Subpart 3033.1--Protests
Sec.
3033.102 General.
3033.102-90 Protests on classified solicitations (OSA).
3033.102-90 Protests on classified solicitations (OSA).
To ensure that classified information is protected and appropriate
security measures are coordinated as required, protests involving
classified solicitations issued by the Office of Selective Acquisitions
(OSA) shall be submitted directly to the contracting officer for
further transmission to the GAO, the United States Court of Federal
Claims, or for internal resolution in the case of agency protests.
Specific instructions will be provided in Section L of the
solicitation.
PART 3035--RESEARCH AND DEVELOPMENT CONTRACTING
3035.7000 [Removed]
0
28a. Amend subpart 3035.70 by removing section 3035.7000.
0
28b. Add sections 3035.70-1 and 3035.70-2 to read as follows:
3035.70-1 Policy.
The Department of Homeland Security (DHS) desires widespread
dissemination of the results of funded non-sensitive research. The
Contractor, therefore, may publish (subject to the provisions of the
``Data Rights'' and ``Patent Rights'' clauses of the contract) research
results in professional journals, books, trade publications, or other
appropriate media.
3035.70-2 Contract clause.
(a) The contracting officer shall use the clause at (HSAR) 48 CFR
3052.235-70, Dissemination of Information--Educational Institutions, in
contracts with educational institutions for research that is not
sensitive or classified.
(b) If the contract involves sensitive or classified research, the
contracting officer shall prepare and insert a Special Contract
Requirement that conditions dissemination upon the approval of a
designated Government official.
PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
3036.201 [Removed]
0
29. Remove section 3036.201.
PART 3042--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 3042.2 [Removed]
0
30. Remove subpart 3042.2.
0
31. Revise section 3042.1502 to read as follows:
[[Page 50636]]
3042.1502 Policy.
(a) Components shall use the Contractor Performance Assessment
Reporting System (CPARS) or other performance reporting system as
designated by the DHS Chief Procurement Officer for evaluating
contractor performance in accordance with (FAR) 48 CFR sections 42.1502
and 42.1503.
(e) Components shall use the Construction Contractor Appraisal
Support System (CCASS) module of CPARS, or other performance reporting
system as designated by the DHS Chief Procurement Officer for
evaluating construction contractor performance in accordance with (FAR)
48 CFR sections 42.1502 and 42.1503.
(f) Components shall use the Architect-Engineer Contract
Administration Support System (ACASS) module of CPARS or other
performance reporting system as designated by the DHS Chief Procurement
Officer for evaluating architect-engineer contractor performance in
accordance with (FAR) 48 CFR sections 42.1502 and 42.1503.
PART 3045--[REMOVED AND RESERVED]
0
32. Under the authority of 5 U.S.C. 301-302, part 3045 is removed and
reserved.
PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
33. Amend section 3052.101 by adding the following note:
Subpart 3052.1--Instructions for Using Provisions and Clauses
Sec.
3052.101 Using Part 3052.
3052.101 Using Part 3052.
Note to 3052.101: The solicitation provisions and contract
clauses matrix referencing all HSAR provisions and clauses is
available at https://www.dhs.gov/xopnbiz/ under Policy and
Regulations, Homeland Security Acquisition Regulation (HSAR).
0
34. Amend subpart 3052.2 by adding 3052.203-70 to read:
3052.203-70 Instructions for Contractor Disclosure of Violations.
As prescribed in (HSAR) 48 CFR 3003.1004(a), insert the following
clause:
Instructions for Contractor Disclosure of Violations ([DATE])
When making a written disclosure under the clause at FAR 52.203-13,
paragraph (b)(3), the Contractor shall use the Contractor Disclosure
Form at https://www.oig.dhs.gov and submit the disclosure electronically
to the Department of Homeland Security Office of Inspector General. The
Contractor shall provide a copy of the disclosure to the Contracting
Officer by email or facsimile on the same business day as the
submission to the Office of Inspector General. The Contractor shall
provide the Contracting Officer a concurrent copy of any supporting
materials submitted to the Office of Inspector General.
0
35-36. Amend section 3052.204-71:
0
a. By capitalizing the first letter of every occurrence of the words
``contractor'' and ``government'' and by revising paragraph (a) of the
clause; and
0
b. In Alternate I by capitalizing the first letters of every occurrence
of the words ``contractor'' and ``contracting officer'' in the
alternate content, by removing paragraph (k)(1) of the alternate and
renumbering paragraphs (k)(2) and (3) to (k)(1) and (2) respectively,
and by revising the date of Alternate I.
The revisions read as follows:
3052.204-71 Contractor employee access ([DATE])
(a) Sensitive Information, as used in this clause, means any
information, which if lost, misused, disclosed, or, without
authorization is accessed, or modified, could adversely affect the
national or homeland security interest, the conduct of Federal
programs, or the privacy to which individuals are entitled under
section 552a of title 5, United States Code (the Privacy Act), but
which has not been specifically authorized under criteria established
by an Executive Order or an Act of Congress to be kept secret in the
interest of national defense, homeland security or foreign policy. This
definition includes the following categories of information:
* * * * *
``Alternate I ([DATE])''
* * * * *
0
37. Amend subpart 3052.2 by adding 3052.205-70 to read as follows:
3052.205-70 Advertisements, Publicizing Awards, and Releases.
As prescribed in (HSAR) 48 CFR 3005.470-2, insert the following
clause:
Advertisements, Publicizing Awards, and Releases ([DATE])
The Contractor shall not refer to this contract in commercial
advertising or similar promotions in such a manner as to state or
imply that the product or service provided is endorsed or preferred
by the Federal Government or is considered by the Government to be
superior to other products or services.
(End of clause)
Alternate I ([DATE]). If a contract involves sensitive or
classified information, designate the paragraph in the base clause
as (a) and add the following paragraph (b) to the clause:
(b) All advertisements, releases, announcements, or other
publication regarding this contract or the agency programs and
projects covered under it, or the results or conclusions made
pursuant to performance, must be approved by the Contracting
Officer. Under no circumstances shall the Contractor, or anyone
acting on behalf of the Contractor, refer to the supplies, services,
or equipment furnished pursuant to the provisions of this contract
in any publicity, release, or commercial advertising without first
obtaining explicit written consent to do so from the Contracting
Officer.
(End of clause)
0
38. Amend subpart 3052.2 by adding section 3052.212-70 to read as
follows:
3052.212-70 Contract Terms and Conditions Applicable to DHS
Acquisition of Commercial Items. As prescribed in (HSAR) 48 CFR
3012.301, insert the following clause:
Contract Terms and Conditions Applicable to DHS Acquisition of
Commercial Items ([DATE])
The Contractor agrees to comply with any provision or clause
that is incorporated herein by reference to implement agency policy
applicable to acquisition of commercial items or components. The
provision or clause in effect based on the applicable regulation
cited on the date the solicitation is issued applies unless
otherwise stated herein. The following provisions and clauses are
incorporated by reference: [The Contracting Officer should either
check the provisions and clauses that apply or delete the provisions
and clauses that do not apply from the list. The Contracting Officer
may add the date of the provision or clause if desired for clarity.]
(a) Provisions.
----3052.209-72 Organizational Conflicts of Interest.
----3052.216-70 Evaluation of Offers Subject to An Economic Price
Adjustment Clause.
----3052.219-72 Evaluation of Prime Contractor Participation in the
DHS Mentor Prot[eacute]g[eacute] Program.
(b) Clauses.
----3052.203-70 Instructions for Contractor Disclosure of
Violations.
----3052.204-70 Security Requirements for Unclassified Information
Technology Resources.
----3052.204-71 Contractor Employee Access.
----Alternate I
----3052.205-70 Advertisement, Publicizing Awards, and Releases.
[[Page 50637]]
----3052.209-73 Limitation on Future Contracting.
----3052.215-70 Key Personnel or Facilities.
----3052.216-71 Determination of Award Fee.
----3052.216-72 Performance Evaluation Plan.
----3052.216-73 Distribution of Award Fee.
----3052.217-91 Performance. (USCG)
----3052.217-92 Inspection and Manner of Doing Work. (USCG)
----3052.217-93 Subcontracts. (USCG)
----3052.217-94 Lay Days. (USCG)
----3052.217-95 Liability and Insurance. (USCG)
----3052.217-96 Title. (USCG)
----3052.217-97 Discharge of Liens. (USCG)
----3052.217-98 Delays. (USCG)
----3052.217-99 Department of Labor Safety and Health Regulations
for Ship Repair. (USCG)
----3052.217-100 Guarantee. (USCG)
----3052.219-70 Small Business Subcontracting Plan Reporting.
----3052.219-71 DHS Mentor Prot[eacute]g[eacute] Program.
----3052.228-70 Insurance.
----3052.228-90 Notification of Miller Act Payment Bond Protection.
(USCG)
----3052.228-91 Loss of or Damage to Leased Aircraft. (USCG)
----3052.228-92 Fair Market Value of Aircraft. (USCG)
----3052.228-93 Risk and Indemnities. (USCG)
----3052.236-70 Special Provisions for Work at Operating Airports.
----3052.242-72 Contracting Officer's Technical Representative.
----3052.247-70 F.o.B. Origin Information.
----Alternate I
----Alternate II
----3052.247-71 F.o.B. Origin Only.
----3052.247-72 F.o.B. Destination Only.
(End of clause)
3052.216-71 [Amended]
0
39. Amend section 3052.216-71, Determination of Award Fee by removing
the words ``(DEC 2003)'' from the title of the clause, adding in their
place the words ``([DATE])'' and by removing paragraph (d).
3052.235-70 [Amended]
0
40. Amend section 3052.235-70 by removing the words ``48 CFR
3035.7000'' in the introductory paragraph and adding in their place the
reference to ``48 CFR 3035.70-2.''
3052.242-71 [Removed]
0
41. Remove section 3052.242-71.
3052.245-70 [Removed]
0
42. Remove section 3052.245-70.
PART 3053--FORMS
0
43. Amend section 3053.204-70 by revising paragraphs (a) through (c) to
read as follows:
3053.204-70 Administrative matters.
* * * * *
(a) DHS Form 700-1, Cumulative Claim and Reconciliation Statement.
(See (HSAR) 48 CFR 3004.804-570(a)(3).)
(b) DHS Form 700-2, Contractor's Assignment of Refunds, Rebates,
Credits and Other Amounts. (See (HSAR) 48 CFR 3004.804-570(a)(2).)
(c) DHS Form 700-3, Contractor Release. (See (HSAR) 48 CFR
3004.804-570(a)(1).)
3053.222-70 [Amended]
0
44. Amend section 3053.222-70 by removing ``DHS Form 0700-04'' in the
last line and adding ``DHS Form 700-4'' in its place.
3053.303 [Amended]
0
45. Amend section 3053.303 by removing ``DHS Form 0700-01'', ``DHS Form
0700-02'', ``DHS Form 0700-03'', and ``DHS Form 0700-04'' from the
table in the ``Form No.'' column, and adding in their place,
respectively ``DHS Form 700-1'', ``DHS Form 700-2'', ``DHS Form 700-
3'', and ``DHS Form 700-4''; and by removing the whole entry for
``Contractor Report of Government Property/DHS Form 0700-05.''
3053.245-70 [Removed and Reserved]
0
46. Remove and reserve section 3053.245-70.
[FR Doc. 2012-20440 Filed 8-21-12; 8:45 am]
BILLING CODE 9110-9B-P
