[Federal Register Volume 68, Number 233 (Thursday, December 4, 2003)]
[Rules and Regulations]
[Pages 67868-67903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29823]
[[Page 67867]]
-----------------------------------------------------------------------
Part II
Department of Homeland Security
-----------------------------------------------------------------------
48 CFR Chapter 30
Department of Homeland Security Acquisition Regulation; Interim Rule
Federal Register / Vol. 68, No. 233 / Thursday, December 4, 2003 /
Rules and Regulations
[[Page 67868]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
48 CFR Chapter 30
[Docket Number USCG-2003-16571]
RIN 1601-AA16
Department of Homeland Security Acquisition Regulation
AGENCY: Office of the Chief Procurement Officer, Department of Homeland
Security.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is issuing an
interim rule to establish the Department of Homeland Security
Acquisition Regulation (HSAR). The HSAR is intended as regulatory
guidance. The HSAR reflects recent changes to the Federal Acquisition
Regulation (FAR) and it establishes and encourages participation in the
DHS Mentor-Proege Program.
DATES: This rule is effective on December 4, 2003. Comments must reach
the Department of Homeland Security, Office of the Chief Procurement
Officer, Acquisition Policy on or before January 5, 2004, to be
considered in the formation of the final rule. Comments on collection
of information sent to the Office of Management and Budget (OMB) must
reach OMB on or before January 5, 2004.
ADDRESSES: Please submit written comments by one of the following
means:
(1) Electronically to [email protected].
(2) By mail to the Department of Homeland Security, Office of the
Chief Procurement Officer, Acquisition Policy and Oversight, ATTN:
Kathy Strouss, 245 Murray Drive, Bldg. 410 (RDS), Washington, DC 20528.
You must also mail comments on collection of information to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer,
DHS.
FOR FURTHER INFORMATION CONTACT: Kathy Strouss, Department of Homeland
Security, Office of the Chief Procurement Officer, Acquisition Policy,
at (202) 205-0141.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. Your comments will be considered for the
final rule we plan to issue to replace this interim rule. If you choose
to comment on this rule, please include your name and address, indicate
the specific heading of this document to which each comment applies,
and give the reason for each comment. Comments should be organized by
HSAR Part, and address the specific section (e.g. (HSAR) 48 CFR
3006.302-7) that is being commented on. You may submit your comments
and material by mail or electronic means to the address under
ADDRESSES. Please submit your comments and material by only one means.
If you submit them by mail, submit them in an unbound format, no larger
than 8\1/2\ by 11 inches, suitable for copying and electronic filing.
If you submit them by mail and would like to know that they reached the
Department of Homeland Security, Office of Chief Procurement Officer,
please enclose a stamped, self-addressed postcard or envelope. We will
consider all comments and material received during the comment period.
We may change this rule in view of them.
Background and Purpose
DHS is issuing the Homeland Security Acquisition Regulation (HSAR)
to establish a uniform departmentwide acquisition policy and
regulation. The HSAR uses plain language for clarity and understanding;
does not contain internal operating procedures that do not have a
significant effect beyond DHS; and establishes the DHS Mentor-Protege
Program.
The Department formed a HSAR Work Group that included both
acquisition and legal staff from both the Department and its
organizational elements. The team's approach was to develop and issue a
regulation that delegates authority, where appropriate, to the lowest
levels, is concise, and is simple for contractor's, offerors, and DHS
contracting personnel to use.
Discussion of Interim Rule
The parts that contain no coverage and have been reserved are parts
3007, 3008, 3010, 3012, 3014, 3018, 3020, 3021, 3025, 3026, 3029, 3034,
3038, 3039, 3040, 3041, 3043, 3044, 3048, 3049, 3050, and 3051.
Part 3001, Federal Acquisition System, sets forth basic policies
and general information about the Department of Homeland Security
Regulation system including purpose, guiding principles, applicability,
issuance, arrangement, numbering, dissemination, publication and
codification, deviations, career development, contracting authority,
and policy regarding determinations, waivers, exceptions, approvals and
reviews.
Part 3002, Definitions and Abbreviations of Words and Terms,
provides definitions and abbreviations for commonly used terms.
Part 3003, Improper Business Practices and Personal Conflicts of
Interest, lists the authorities for Standards of Conduct and defines
the Federal Acquisition Regulation (FAR) term ``authorized official of
an agency.'' The Part also contains procedures for reporting suspected
violations of the Gratuities clause, and reports of suspected antitrust
violations, Contingent Fees and subcontractor kickbacks.
Part 3004, Administrative Matters, prescribes an Approval of
Contract clause, and a Security Requirements for Unclassified
Information Technology Resources clause. The Part also establishes when
quick close out procedures can be used, as well as the applicable forms
to be used in contract close out.
Part 3005, Publicizing Contract Actions, includes a requirement
that releases of information to the general public will follow Freedom
of Information Act (FOIA) rules, and a United States Coast Guard (USCG)
exemption for publicizing contract actions for personal medical
services contracting.
Part 3006, Competition Requirements, includes policies and
procedures for establishing or maintaining alternative sources;
circumstances permitting other than full and open competition, public
interest; and Competition Advocates requirements, duties and
responsibilities. The Part also includes a USCG exemption from
competition requirements for personal medical services contracting.
Part 3009, Contractor Qualifications, sets forth policy on
responsible prospective contractors; debarment, suspension and
ineligibility; and a solicitation provision for organizational and
consultant conflicts of interest.
Part 3011, Describing Agency Needs, includes a policy on selecting
and developing requirements documents; solicitation and contract
clauses for using and maintaining requirements documents; liquidated
damages; and priorities and allocations.
Part 3013, Simplified Acquisition Procedures, includes a
solicitation provision, and contract and purchase order clauses for the
USCG bar coding requirement. It also includes the implementation of DHS
special streamlined acquisition authorities.
Part 3015, Contracting By Negotiation, prescribes a Key Personnel
or Facilities
[[Page 67869]]
clause that will be used when selection for award is substantially
based on offeror's possession of special capabilities. A policy on
handling proposals and information, payment of profit or fee, and
unsolicited proposals is also included in this Part.
Part 3016, Types of Contracts, includes a policy on fixed price,
incentive, indefinite-delivery contracts, and a settlement of letter
contract clause.
Part 3017, Special Contracting Methods, includes guidance on use of
options, leader company contracting, energy savings performance
contracts, and USCG clauses for fixed price contracts for vessel
repair, alteration or conversion.
Part 3019, Small Business Programs, sets forth general policies for
the small business and small business subcontracting program. This Part
prescribes that a provision and clause be placed in all respective
solicitations and contracts requiring a subcontracting plan. Also, two
clauses are prescribed for DHS' Mentor-Protege Program, which assists
qualified small businesses in receiving developmental assistance from
DHS prime contractors in order to increase the base of small businesses
eligible to perform DHS contracts and subcontracts.
Part 3022, Application of Labor Laws to Government Acquisitions,
sets forth DHS' policy on the admittance of union representatives to
DHS installations. Prescriptions for HSAR 3052.222-70, Strikes or
Picketing Affecting Timely Completion of the Contract Work, and HSAR
3052.222-71, Strikes or Picketing Affecting Access to a DHS Facility,
are included. Guidance on withholding from or suspension of contract
payments is also included. This part sets forth the USCG policy,
provision and clause for local hires in all solicitations and contracts
for construction or services with regard to a State's unemployment
rate.
Part 3023, Environment, Energy and Water Efficiency, Renewable
Energy Technologies, Occupational Safety, and Drug-Free Workplace,
includes a provision and clause for removal or disposal of hazardous
substances. It also includes drug-free workplace applicability guidance
and sets forth approval authorities for a determination to suspend
payments, terminate contracts or debar and suspend as it relates to
this part. This Part also includes a requirement for Accident and Fire
reporting when work will be performed on government-owned or leased
property.
Part 3024, Protection of Privacy and Freedom of Information,
specifies where DHS policies and procedures for implementing the
Privacy Act of 1974 and the FOIA are found.
Part 3027, Patents, Data, and Copyrights, provides general guidance
on patents, adjustment of royalties and use of patented technology
under the North American Free Trade Agreements Act; patent rights
clauses; and approval and justification requirements for administration
of licensing background patent rights to third parties. Also, it
includes guidance on use of an appropriate rights in data clause.
Part 3028, Bonds and Insurance, includes a requirement for the
contracting officer to furnish surety information, and it includes
policy on execution and administration of bonds. There is a requirement
for the USCG to insert a provision or clause on Notification of Miller
Act Payment Bond Protection. There are also USCG clauses for the
insurance requirements for contracts for lease of aircraft. An
insurance provision or clause requirement is found in this part.
Part 3030, Cost Accounting Standards Administration, provides that
the Head of the Contracting Activity (HCA) is authorized to waive
application of Cost Accounting Standards to individual commercial item,
firm-fixed priced contracts.
Part 3031, Contract Cost Principles and Procedures, includes policy
for pre-contract costs.
Part 3032, Contract Financing, provides guidance on contract
financing for simplified acquisitions and specifies that the Chief
Procurement Officer (CPO) is the DHS remedy coordination official. It
also contains the Payment by Electronic Funds Transfer--Central
Contractor Registration (CCR) requirement for all solicitations and
contracts.
Part 3033, Protests, Disputes, and Appeals includes the designation
of Department of Transportation Board of Contract Appeals as the DHS
BCA.
Part 3035, Research and Development Contracting, includes policy on
cost sharing and recoupment.
Part 3036, Construction and Architect and Engineering Contracts,
includes a policy on performance reports and a contract clause for
special precautions for work at operating airports.
Part 3037, Service Contracting, includes guidance on contract
personnel access application, and conditional access to sensitive but
unclassified information. The Part also provides policy for personal
services contracts.
Part 3042, Contract Administration and Audit Services, includes
prescriptions for clauses for dissemination of contract information;
contracting officer's technical representative, and a requirement to
use the Contractor Performance System for evaluating contractor
performance.
Part 3045, Government Property, sets for reporting and auditing
requirements, and a provision for a contract clause.
Part 3046, Quality Assurance, includes definitions relative to
warranties; criteria for use of warranties; and terms and conditions.
The Part also includes additional requirements for the USCG.
Part 3047, Transportation, sets forth the provisions for the
transportation clauses for use, when applicable.
Part 3052, Solicitation Provisions and Contract Clauses, provides
the text of the provisions and clauses. It also includes the text for
the USCG specific provisions and clauses.
Part 3053, Forms, includes five forms that require completion by
contractors or contract employees. The forms will be available and
linked to the DHS website after they are approved by OMB, and upon
publication of the final rule.
The Matrix lists the provisions and clauses, and illustrates
whether a provision or clause is required or to be used when
applicable.
Regulatory Assessment
This interim rule is not subject to review by the Office of
Management and Budget (OMB) under Executive Order 12866, Regulatory
Planning and Review, as supplemented by Executive Order 13132,
Federalism, and is not a major rule under 5 U.S.C. 804. It therefore
does not require an assessment of potential costs and benefits under
section 6(a)(3) of that Order. The Office of Management and Budget has
not reviewed it under Executive Order 12866. It is not significant
under the regulatory policies and procedures of the Department of
Homeland Security.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this interim rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This interim rule is not expected to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act. An Initial Regulatory
[[Page 67870]]
Flexibility Analysis has not been performed.
The Mentor-Prot[eacute]g[eacute] Program does apply to large
business and small business firms that receive a form of incentive for
assuming the role of mentor to small businesses, other small
disadvantaged businesses, qualified HUBZone small businesses, small
businesses owned and controlled by service disabled veterans, and small
women-owned businesses. It is expected that the prot[eacute]g[eacute]
entities would directly benefit from the forms of mentoring provided
for in this rule. The interim regulation provides consistency with the
FAR.
Collection of Information
This interim rule contains information collection requirements
subject to the Paperwork Reduction Act (44 U.S.C. 3501-3520) that are
being submitted to OMB for approval. As defined in 5 CFR 1320.3(c),
``collection of information'' comprises reporting, recordkeeping,
monitoring, posting, labeling, and other, similar actions. DHS is
awaiting approval from OMB for the five (5) forms that are referenced
in the HSAR, and that can be found in Part 3053. DHS is also awaiting
approval and the assignment of numbers for contract, solicitations and
protests.
This information will be shown in HSAR Section 3001.106 and Part
3053, and will be published separately. This information is required by
the Office of the Chief Procurement Officer in order to solicit,
negotiate, award, and administer contracts in accordance with the
Federal Acquisition Regulation, other regulations and statutes; in
order to evaluate offers, ensure appropriate contract cost controls,
and minimize conditions conducive to fraud, waste, and abuse; and in
order to collect appropriate information from prospective contractors
when protests are filed.
Additionally, the collections of information in this rule in part
3053 are for DHS Forms 0700-01 through 0700-05. These forms will be
used when applicable for the following purposes: Cumulative Claim and
Reconciliation Statement; Contractor's Assignment of Refunds, Rebates,
Credits, and Other Amounts; Contractor's Release; Contractor Report of
Government Property; and Employee Claim for Wage Restitution.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this interim rule to the Office
of Management and Budget (OMB) for its review of the collection of
information. Due to the circumstances surrounding this temporary rule,
we asked for ``emergency processing'' of our request.
We ask for public comment on the collection of information to help
us determine how useful the information is; whether it can help us
perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to DHS at the address indicated under ADDRESSES,
by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. This rule is not subject to the
requirements of Executive Order 13132. DHS has determined that this
proposed rule does not contain federalism implications and would not
preempt State laws.
Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Homeland Security that urgent and compelling reasons exist to
publish an interim rule prior to affording the public an opportunity to
comment. This interim rule implements Sections 833 and 835 of the
Homeland Security Act (Public Law 107-296), signed on November 25,
2002. The act provides authorities to be used in contracting for
supplies and services required to accomplish the DHS mission of
preventing and reducing terrorist attacks as well as minimizing damage
and assisting in recovery from terrorist attacks for the Department and
its organizational elements (OEs). Comments received in response to
this interim rule will be considered in the formation of the final
rule.
Under 5 U.S.C. 553(b)(B), the Department of Homeland Security (DHS)
finds that good cause exists for not publishing a general notice of
proposed rulemaking (NPRM). DHS consists of agencies and other
operating elements of Government that pre-existed the formation of DHS.
Prior to DHS's formation, those agencies used supplemental acquisition
regulations as a foundation for the conduct of their procurement and
acquisition functions. For example, the Coast Guard utilized the
Department of Transportation (DOT) Acquisition Regulations found at 48
CFR Chapter 12. The Coast Guard can no longer rely on the DOT
regulations since they no longer are a part of DOT. Similarly,
organizations that used the Department of Treasury's or Department of
Justice's acquisition supplements can no longer rely on those
regulations.
DHS finds that due to an urgent need for seamless continued
acquisition and contracting operations of the previous agencies and
organizations that now comprise DHS, it is impracticable to afford the
public an opportunity to comment prior to issuing this interim rule.
Currently, there are no Department-level acquisition regulations
governing DHS's vital contracting business. Consequently, a delay in
issuing this regulation would be contrary to the public interest. This
regulation realigns contracting authority within the Department and
provides uniform regulatory guidance for the acquisition of supplies
and services required to accomplish DHS's mission of preventing and
reducing terrorist attacks as well as minimizing damage and assisting
in recovery from terrorist attacks.
Under 5 U.S.C. 553(d)(3), DHS also finds that for the same reasons
discussed above respecting 5 U.S.C. 553(b)(B), good cause exists for
making this rule effective in less than 30 days after publication in
the Federal Register.
List of Subjects in 48 CFR Parts 3001 Through 3053
Government procurement.
Dated: November 21, 2003.
Gregory D. Rothwell,
Chief Procurement Officer.
0
For the reasons discussed in the preamble, the Department of Homeland
Security is adding chapter 30 of title 48 in the CFR to read as
follows:
CHAPTER 30--DEPARTMENT OF HOMELAND SECURITY, HOMELAND SECURITY
ACQUISITION REGULATION (HSAR)
SUBCHAPTER A--GENERAL
PART 3001--FEDERAL ACQUISITION REGULATIONS SYSTEM
PART 3002--DEFINITIONS OF WORDS AND TERMS
PART 3003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
PART 3004--ADMINISTRATIVE MATTERS
SUBCHAPTER B--ACQUISITION PLANNING
[[Page 67871]]
PART 3005--PUBLICIZING CONTRACT ACTIONS
PART 3006--COMPETITION REQUIREMENTS
PART 3007--ACQUISITION PLANNING--[RESERVED]
PART 3008--REQUIRED SOURCES OF SUPPLIES AND SERVICES--[RESERVED]
PART 3009--CONTRACTOR QUALIFICATIONS
PART 3010--MARKET RESEARCH--[RESERVED]
PART 3011--DESCRIBING AGENCY NEEDS
PART 3012--ACQUISITION OF COMMERCIAL ITEMS--[RESERVED]
SUBCHAPTER C--CONTRACT METHODS AND CONTRACT TYPES
PART 3013--SIMPLIFIED ACQUISITION PROCEDURES
PART 3014--SEALED BIDDING--[RESERVED]
PART 3015--CONTRACTING BY NEGOTIATION
PART 3016--TYPES OF CONTRACTS
PART 3017--SPECIAL CONTRACTING METHODS
PART 3018--[RESERVED]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 3019--SMALL BUSINESS PROGRAMS
PART 3020--[RESERVED]
PART 3021--[RESERVED]
PART 3022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 3023--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
PART 3024--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
PART 3025--FOREIGN ACQUISITION--[RESERVED]
PART 3026--OTHER SOCIOECONOMIC PROGRAMS--[RESERVED]
PART 3027--PATENTS, DATA AND COPYRIGHTS
PART 3028--BONDS AND INSURANCE
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 3029--TAXES--[RESERVED]
PART 3030--COST ACCOUNTING STANDARDS ADMINISTRATION
PART 3031--CONTRACT COST PRINCIPLES AND PROCEDURES
PART 3032--CONTRACT FINANCING
PART 3033--PROTESTS, DISPUTES, AND APPEALS
PART 3034--MAJOR SYSTEM ACQUISITION--[RESERVED]
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 3035--RESEARCH AND DEVELOPMENT CONTRACTING
PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
PART 3037--SERVICE CONTRACTING
PART 3038--FEDERAL SUPPLY SCHEDULE CONTRACTING--[RESERVED]
PART 3039--ACQUISITION OF INFORMATION TECHNOLOGY--[RESERVED]
PART 3040--[RESERVED]
PART 3041--ACQUISITION OF UTILITY SERVICES--[RESERVED]
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 3042--CONTRACT ADMINISTRATION AND AUDIT SERVICES
PART 3043--CONTRACT MODIFICATIONS--[RESERVED]
PART 3044--SUBCONTRACTING POLICIES AND PROCEDURES--[RESERVED]
PART 3045--GOVERNMENT PROPERTY
PART 3046--QUALITY ASSURANCE
PART 3047--TRANSPORTATION
PART 3048--VALUE ENGINEERING--[RESERVED]
PART 3049--TERMINATION OF CONTRACTS--[RESERVED]
PART 3050--EXTRAORDINARY CONTRACTUAL ACTIONS--[RESERVED]
PART 3051--USE OF GOVERNMENT SOURCES BY CONTRACTORS--[RESERVED]
SUBCHAPTER H--CLAUSES AND FORMS
PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 3053--FORMS
0
1. The authority citation for parts 3001 through 3053 reads as follows:
Authority: 41 U.S.C. 418b (a) and (b).
0
2. The text of parts 3001 through 3053 reads as follows:
PART 3001--FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 3001.1--Purpose, Authority, Issuance
Sec.
3001.101 Purpose.
3001.102 Statement of Guiding Principles for the Federal Acquisition
System.
3001.104 Applicability.
3001.105 Issuance.
3001.105-1 Publication and code arrangement.
3001.105-2 Arrangement of regulations.
3001.105-3 Copies.
3001.106 OMB Approval under the Paperwork Reduction Act.
Subpart 3001.3--Agency Acquisition Regulations
3001.301 Policy.
3001.301-70 Amendment of HSAR.
3001.301-71 Effective date.
3001.301-72 HSAC or HSAR Notice numbering.
3001.303 Publication and codification.
3001.304 Agency control and compliance procedures.
Subpart 3001.4--Deviations from the FAR
3001.403 Individual deviations.
3001.404 Class deviations.
Subpart 3001.6--Career Development, Contracting Authority, and
Responsibilities
3001.601 General.
3001.602 Contracting Officers.
3001.602-3 Ratification of unauthorized commitments.
3001.603 Selection, appointment, and termination of appointment.
3001.603-1 General.
Subpart 3001.7--Determinations and Findings
3001.704 Content.
Subpart 3001.70--Other Determinations, Waivers, Exceptions, Approvals,
Reviews, and Submittals.
3001.7000 Coordination and approval.
3001.7001 Content.
Subpart 3001.1--Purpose, Authority, Issuance
3001.101 Purpose.
The Department of Homeland Security Acquisition Regulation (HSAR)
establishes uniform acquisition policies and procedures, which
implement and supplement the Federal Acquisition Regulation (FAR).
3001.102 Statement of Guiding Principles for the Federal Acquisition
System.
(d) The FAR and this supplement are to be interpreted permissively,
if consistent with statutory and regulatory requirements, policy, and
sound professional judgment.
3001.104 Applicability.
(a) The following order of precedence applies to resolve any
acquisition regulation or procedural inconsistency found within HSAR or
the Homeland Security Acquisition Manual (HSAM):
(1) Statute;
(2) FAR or other applicable regulation or Executive Order;
(3) HSAR;
(4) Department of Homeland Security (DHS) Directives; and
(5) HSAM.
(b) The Transportation Security Administration (TSA) exception to
this regulation is authorized by the Aviation and Transportation
Security Act of 2001 (Section 101(a) of Public Law 107-71). However,
see (HSAR) 48 CFR 3033.211, regarding Board of Contract Appeals (BCA).
(c) For nonappropriated fund contracts, the FAR and HSAR will be
followed to the maximum extent feasible excluding provisions determined
by counsel not to apply to Nonappropriated Fund institutions (NAFIs).
Contracting terms may provide for mutual agreement as to the Board of
Contract Appeals jurisdiction but this policy will not confer court
jurisdiction concerning NAFIs that does not otherwise exist.
3001.105 Issuance.
3001.105-1 Publication and code arrangement.
(a) The HSAR is published in:
(1) The Federal Register and
(2) Cumulated form in the Code of Federal Regulations (CFR).
3001.105-2 Arrangement of regulations.
(a) General. The HSAR, which encompasses both Department-wide and
[[Page 67872]]
organizational element-unique guidance, conforms to the arrangement and
numbering system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is
unique to an organization with Head of the Contracting Activity (HCA)
authority contains the organization's acronym directly preceding the
cite. The following acronyms apply:
Bureau of Customs and Border Protection (CBP)
Bureau of Immigration and Customs Enforcement (ICE)
DHS Office of Procurement Operations (OPO)
Federal Emergency and Management Agency (FEMA) (Includes all elements
of the Emergency Preparedness and Response Directorate)
Federal Law Enforcement Training Center (FLETC)
Transportation Security Administration (TSA)
U.S. Coast Guard (USCG)
U.S. Secret Service (Secret Service)
3001.105-3 Copies.
The HSAR is available in the Federal Register and electronically at
http://www.dhs.gov/dhspublic/.
3001.106 OMB Approval under the Paperwork Reduction Act.
(a) The Office of Management and Budget (OMB) has assigned the
following control numbers that must appear on the upper right-hand
corner of the face page of each solicitation, contract, modification,
and order:
OMB Control No. 1600-002 (Contract related forms)
OMB Control No. 1600-005 (Offeror submissions)
OMB Control No. 1600-003 (Contractor submissions)
OMB Control No. 1600-004 (Protests)
(b) OMB regulations and OMB's approval and assignment of control
numbers are conditioned upon not requiring more than three copies
(including the original) of any document of information. OMB has
granted a waiver to permit the Department to require up to eight copies
of proposal packages, including proprietary data, for solicitations,
provided that contractors who submit only an original and two copies
will not be placed at a disadvantage.
Subpart 3001.3--Agency Acquisition Regulations
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
Homeland Security policies and procedures for all acquisition
activities within the Department of the Homeland Security, except the
TSA. OE 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 submits the proposed
coverage for publication in the Federal Register according to (FAR) 48
CFR 1.501.
(2)(i) The CPO is authorized to issue internal agency guidance at
any organizational level. Department-wide procedures are contained in
the HSAM. The HCA may implement internal procedures or supplement the
FAR, HSAR, or HSAM as provided in HSAM 3001.3. The HCA may issue
procedures or delegate this authority to any organizational level
deemed appropriate. OE procedures may be more restrictive or require
higher approval levels than those permitted by the HSAM, unless
otherwise specified.
(ii) Individuals granted authority in the HSAR may delegate that
authority, unless the FAR or HSAR specifically state that the authority
is not delegable.
(b) The Under Secretary of Management established procedures
through Management Directive (MD) 0490.1, entitled Federal Register
Notice and Rules, to ensure that agency acquisition regulations are
published for comment in the Federal Register in conformance with FAR
procedures at (FAR) 48 CFR subpart 1.5.
3001.301-70 Amendment of HSAR.
(a) Request for changes to the regulation may be recommended by DHS
personnel, other Government agencies, or the public. Change requests
are to be submitted in the following format to the Department of
Homeland Security, Attn: Office of the Under Secretary of Management,
Chief Procurement Officer, Washington, DC 20598.
(1) Problem: Succinctly state the problem(s) created by current
HSAR requirements or processes and describe the factual or legal
reasons for requesting a regulatory change.
(2) Recommendation: Identify the recommended change by using the
current language and lining through the words to be deleted and
inserting proposed language in brackets. If the change is extensive,
deleted language may be displayed by forming a box with diagonal lines
connecting the corners.
(3) Discussion: Explain why the change is necessary and how the
change will solve the problem. Address any cost or administrative
impact on Government activities, offerors, and contractors. Provide any
other helpful information and documents such as statutes, legal
decisions, regulations, reports, etc.
(4) Point of Contact: Provide a point of contact for answering
questions regarding the recommendation, along with a telephone number,
e-mail or other method of reaching the contact.
(b) The HSAR is maintained by the CPO through the HSAR/HSAM change
process (i.e., input from various OEs including representatives
specifically designated to formulate Departmental acquisition policies
and procedures).
(1) Homeland Security Acquisition Circular (HSAC). HSAC (see (HSAR)
48 Chapter 3001.301-72) will be used to amend (HSAR) 48 Chapter 30.
(2) HSAR Notices will be issued (with a specified expiration date)
when interim guidance is necessary under any of the following
circumstances:
(i) To promulgate, as rapidly as possible, selected material in a
general or narrative manner, in advance of a HSAC issuance;
(ii) To disseminate other acquisition related information; or
(iii) To issue guidance that is expected to be effective for a
period of 1 year or less.
3001.301-71 Effective date.
Unless otherwise stated, the following applies--
(a) Statements in HSACs or HSAR Notices that the content is ``upon
a specified date,'' or that changes in the document are ``to be used
upon receipt,'' mean that any new or revised provisions, clauses,
procedures, or forms must be included in solicitations or contracts
issued thereafter; and
(b) Unless expressly directed by statute or regulation, if
solicitations have been issued prior to the HSAC or HSAR notice receipt
or publication, the new information (e.g., forms and clauses) need not
be included if the Chief of the Contracting Office (COCO) determines,
in writing, that including the new information would not be in the best
interests of the Government.
3001.301-72 HSAC or HSAR Notice numbering.
HSACs and HSAR Notices will be numbered consecutively on a fiscal
year basis beginning with number ``01'' prefixed by the last two digits
of the fiscal year (e.g., HSAR Notices 03-01 and 03-02 indicate the
first two HSAR Notices issued in fiscal year 2003).
3001.303 Publication and codification.
(a) The HSAR is issued as chapter 30 of Title 48 of the CFR.
[[Page 67873]]
(1) The FAR numbering illustrations at (FAR) 48 CFR 1.105-2 apply
to the HSAR.
(2) Coverage within HSAR 48 CFR chapter 30 is identified by the
prefix ``30'' followed by the complete FAR cite which may extend
downward to the subparagraph level (e.g., (HSAR) 48 CFR 3001.101).
(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).
(4) Coverage in HSAR 48 CFR chapter 30, other than that identified
with a ``70'' or higher number, which implements the FAR uses the
identical number sequence and caption of the FAR segment being
implemented which may extend downward to the subparagraph level.
Subparagraph numbers/letters may not be shown as sequential, but may be
shown by the specific paragraph/subparagraph implemented from the FAR
(e.g., (HSAR) 48 CFR 3003.301 contains subparagraphs (a) and (b)
because only these subparagraphs, correlating to FAR, are being
supplemented by (HSAR) 48 CFR chapter 30).
(5) Organizational Element-unique guidance. Supplementary material
for which there is no counterpart in the FAR or HSAR shall be
identified using chapter, part, subpart, section, or subsection numbers
of ``90'' and up (e.g., the U.S. Coast Guard's acronym is ``USCG''; an
USCG-unique clause pertaining to ``Inspection and/or Acceptance'' would
be designated ``USCG 3052.246-90'').
(6) References and citations. Cross references to the FAR in the
HSAR will be cited by ``FAR'' followed by the FAR numbered cite, and
cross reference to the HSAM in the HSAR will be cited by ``HSAM''
followed by the HSAM numbered cite.
(7) Department/agency and OE supplements must parallel the FAR and
HSAR numbering, except department/agency supplemental numbering uses
subsection numbering of 90 and up, instead of 70 and up.
Table 1-1.--HSAR Numbering
----------------------------------------------------------------------------------------------------------------
FAR Is implemented as Is supplemented as
----------------------------------------------------------------------------------------------------------------
19.............................................................. 3019 3019.70
19.5............................................................ 3019.5 3019.570
19.501.......................................................... 3019.501 3019.501-70
19.501-1........................................................ 3019.501-1 3019.501-170
----------------------------------------------------------------------------------------------------------------
3001.304 Agency control and compliance procedures.
(a) The HSAR is under the direct oversight and control of the
Homeland Security, Office of the Chief Procurement Officer (OCPO),
which is responsible for evaluation, review, and issuance of all
Department-wide acquisition regulations and guidance. Each HCA may
supplement the HSAR with OE guidance. Supplementation should be kept to
a minimum. OEs proposing to issue regulatory supplements or use
solicitation or contract clauses on a repetitive basis must obtain
legal review by the OE's legal counsel and forward supplements to the
CPO for concurrence prior to publication in the Federal Register.
(c) The CPO is responsible for evaluating all regulatory coverage
in agency acquisition regulations to determine if the substance could
apply to other agencies and to make recommendation for inclusion in the
FAR.
Subpart 3001.4--Deviations from the FAR and HSAR
3001.403 Individual deviations.
Unless precluded by law, executive order, or other regulation, the
HCA is authorized to approve individual deviation (except with respect
to (FAR) 48 CFR 30.201-3, 30.201-4; the requirements of the Cost
Accounting Standards board rules and regulations at 48 CFR chapter 99
(FAR appendix); and part 50). Submit requests per (HSAR) 48 CFR
3001.7000(a), including complete documentation of the justification for
the deviation (See HSAM 3001.403).
3001.404 Class deviations.
(a) Unless precluded by law, executive order, or other regulation,
the CPO is authorized to approve class deviations (except (FAR) 48 CFR
30.201-3, 30.201-4; the requirements of the Cost Accounting Standards
board rules and regulations at 48 CFR Chapter 99 (FAR Appendix); and
Part 50). Submit requests per (HSAR) 48 CFR 3001.7000(a), including
complete documentation of the justification for the deviation, and the
number and type of contract actions affected. Include a copy of the
approved deviation in each contract file. The CPO will transmit a copy
of each approved deviation to the FAR Secretariat.
Subpart 3001.6--Career Development, Contracting Authority, and
Responsibilities
3001.601 General.
DHS Delegation Number 0200.1, Delegation to the Directorate of
Management, delegates authority from the Secretary to the Under
Secretary of Management to manage the acquisition function. DHS
Delegation 0700, Delegation to the Chief Procurement Officer for
Acquisition and Financial Assistance Management, delegates this
authority from the Under Secretary of Management to the Chief
Procurement Officer.
3001.602 Contracting officers.
3001.602-3 Ratification of unauthorized commitments.
Department of Homeland Security (DHS) policy requires that
acquisitions be made only by Government officials having authority to
enter into such acquisitions. Acquisitions made by other than
authorized personnel are contrary to Departmental policy and may be
considered matters of serious misconduct on the part of an employee
making an unauthorized commitment, and may result in disciplinary
action being taken against an employee who makes an unauthorized
commitment.
3001.603 Selection, appointment, and termination of appointment.
3001.603-1 General.
Under DHS Delegations, the Heads of the Contracting Activity (HCA),
with authority to redelegate no lower than the COCO, are authorized to
select and appoint contracting officers and terminate their
appointment.
Subpart 3001.7--Determinations and Findings
3001.704 Content.
The following format shall be used for all determinations and
findings (D&Fs), unless otherwise specified in the FAR or the HSAR. The
contracting officer is responsible for preparing D&Fs, and
[[Page 67874]]
requirements and technical personnel are responsible for the accuracy
and adequacy of the supporting factual information, which shall be
furnished to the contracting officer.
Insert specific information indicated in brackets.
Determination and Findings
Under [insert citation for appropriate statutory and/or
regulatory basis for D&F], the Department of Homeland Security,
[insert contracting activity], is granted authority to [insert
nature and/or description of the action being approved].
Findings
[Findings that detail the particular circumstances, facts, or
reasoning essential to support the determination.]
Determination
[A determination, based on the findings, that the proposed
action is justified under the applicable statute or regulation.]
[Expiration date of the D&F, if required.]
[Signature of authorized official]
Name and Title
[month, day, and year]
Date
Subpart 3001.70--Other Determinations, Waivers, Exceptions,
Approvals, Reviews, and Submittals
3001.7000 Coordination and approval.
Documents requiring CPO approval. Requests shall be prepared in
writing by the contracting officer and submitted through the HCA to the
CPO for approval.
3001.7001 Content.
The general format at (HSAR) 48 CFR 3001.704 shall be used to
provide a justification to support the requested determination, waiver,
exception or approval.
PART 3002--DEFINITIONS OF WORDS AND TERMS
Subpart 3002.1--Definitions
Sec.
3002.101 Definitions.
Subpart 3002.2--Abbreviations
3002.270 Abbreviations.
Subpart 3002.1--Definitions
3002.101 Definitions.
Chief Information Officer (CIO) means the Director of the Office of
the CIO.
Chief of the Contracting Office (COCO) means the individual(s)
responsible for managing the contracting office(s) within an
organizational element (OE).
Chief Procurement Officer (CPO) means the Senior Procurement
Executive (SPE).
Contracting activity includes all the contracting offices within an
OE and is the same as the term ``procuring activity.''
Contracting officer means an individual authorized by virtue of
position or by appointment to perform the functions assigned by the
Federal Acquisition Regulation and the Homeland Security Acquisition
Regulation.
Head of Contracting Activity (HCA) means the individual responsible
for direct management of the entire acquisition function within an
organizational element.
Head of the Agency means the Secretary of the Department of
Homeland Security, or, by delegation, the Under Secretary of
Management. ``Legal counsel'' means the Department of Homeland Security
Office of General Counsel or OE office providing legal services to the
contracting organization.
Legal review means review by legal counsel.
Major system means an acquisition as defined in Management
Directive Number 1400, Investment Review Process.
Micro-purchase threshold means $2,500 (see (HSAR) 48 CFR 3013-70),
except it means--
(1) $2,000 for construction subject to the Davis-Bacon Act; and
(2) $7,500 for acquisitions of supplies or services, except for
construction subject to the Davis-Bacon, if the Secretary determines in
writing that the mission of the Department (described in Pub. L. 107-
296, Sec. 101) would be seriously impaired without the use of such
authorities, Act (Pub. L. 107-296, section 833).
Organizational Element (OE) means the following entities for
purposes of this chapter:
(1) Bureau of Customs and Border Protection (CBP);
(2) Bureau of Immigration and Customs Enforcement (ICE);
(3) DHS Office of Procurement Operations (OPO);
(4) Federal Emergency Management Agency (FEMA) (Includes all
elements of the Emergency Preparedness and Response Directorate);
(5) Federal Law Enforcement Training Center (FLETC);
(6) Transportation Security Administration (TSA); (TSA is exempt
from the HSAR and HSAM according to the ``Aviation and Transportation
Security Act of 2001'');
(7) U.S. Coast Guard (USCG); and
(8) U.S. Secret Service (Secret Service).
Senior Procurement Executive (SPE) for the Department of Homeland
Security is the Chief Procurement Officer (CPO).
Simplified acquisition threshold means $100,000 (see (HSAR) 48 CFR
3013-70), except that for acquisitions of supplies or services that, if
the Secretary determines in writing that the mission of the Department
(described in Pub. L. 107-296, section 101) would be seriously impaired
without the use of such authorities from November 25, 2002 to December
30, 2007 (Pub. L. 107-296, section 833(c)), the term means--
(1) $200,000 for any contract to be awarded and performed, or
purchase to be made, inside the United States; and
(2) $300,000 for any contract to be awarded and performed, or
purchase to be made, outside the United States.
Subpart 3002.2--Abbreviations
3002.270 Abbreviations.
CFO Chief Financial Officer
CIO Chief Information Officer
COCO Chief of the Contracting Office
COR Contracting Officers Representative
COTR Contracting Officer's Technical Representative
CPO Chief Procurement Officer
D&F Determination and Findings
DOTBCA Department of Transportation Board of Contract Appeals
FOIA Freedom of Information Act
HCA Head of Contracting Activity
J & A Justification and Approval for Other than Full and Open
Competition
KO Contracting officer
MD Management Directive
OCPO Office of the Chief Procurement Officer
OE Organizational Element
OIG Office of the Inspector General
OSDBU Office of Small and Disadvantaged Business Utilization
PCR SBA's Procurement Center Representative
RFP Request for Proposal
SBA Small Business Administration
SBS Small Business Specialist
SPE Senior Procurement Executive
PART 3003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 3003.1--Safeguards
Sec.
3003.101 Standards of conduct.
3003.101-3 Agency regulations.
Subpart 3003.2--Contractor Gratuities to Government Personnel
3003.203 Reporting suspected violations of the Gratuities clause.
3003.204 Treatment of violations.
Subpart 3003.3--Reports Of Suspected Antitrust Violations
3003.301 General.
[[Page 67875]]
Subpart 3003.4--Contingent Fees
3003.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 3003.5--Other Improper Business Practices
3003.502 Subcontractor kickbacks.
3003.502-2 Subcontractor kickbacks.
Subpart 3003.9--Whistleblower Protections for Contractor Employees
3003.901 Definitions.
Subpart 3003.1--Safeguards
3003.101 Standards of conduct.
3003.101-3 Agency regulations.
(a) Government-wide and Department of Homeland Security regulations
governing the conduct and responsibilities of employees are contained
in 5 CFR parts 2635 and 3101, and MD 0480, Ethics/Standards of Conduct.
Subpart 3003.2--Contractor Gratuities to Government Personnel
3003.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations of the Gratuities clause shall be reported
to the contracting officer responsible for the acquisition (or the COCO
if the contracting officer is suspected of the violation). The
contracting officer (or the COCO) shall obtain from the person
reporting the violation, and any witnesses to the violation, the
following information:
(1) The date, time, and place of the suspected violation;
(2) The name and title (if known) of the individual(s) involved in
the violation; and
(3) The details of the violation (e.g., the gratuity offered or
intended) to obtain a contract or favorable treatment under a contract.
(4) The person reporting the violation and witnesses (if any) shall
be requested to sign and date the information certifying that the
information furnished is true and correct.
(b) The contracting officer shall submit the report to the COCO
(unless the alleged violation was directly reported to the COCO) and
the Head of the Contracting Activity (HCA) for further action. The COCO
and HCA will determine, with the advice of OE legal counsel, whether
the case warrants submission to the OIG, or other investigatory
organization.
3003.204 Treatment of violations.
(a) The HCA is the individual to determine whether a Gratuities
clause violation has occurred. If the HCA has been personally and
substantially involved in the specific procurement, the advice of
Government legal counsel should be sought to determine whether an
alternate decision maker should be designated.
(b) The COCO shall ensure that the hearing procedures required by
(FAR) 48 CFR 3.204(b) are afforded to the contractor. Government 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 during the ``conduct of an agency procurement'' the COCO shall
consult with Government legal counsel regarding the approach for
appropriate processing of either the Procurement Integrity Act
violation or the Gratuities violation.
Subpart 3003.3--Reports Of Suspected Antitrust Violations
3003.301 General.
(b) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for
suspected antitrust violations, except reports of suspected antitrust
violations shall be coordinated with legal counsel for referral to the
Department of Justice, if deemed appropriate.
Subpart 3003.4--Contingent Fees
3003.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) The procedures at (HSAR) 48 CFR 3003.203 shall be followed for
misrepresentation or violations of the covenant against contingent
fees.
(b)(4) The procedures at (HSAR) 48 CFR 3003.203 shall be followed
for misrepresentation or violations of the covenant against contingent
fees, except reports of misrepresentation or violations of the covenant
against contingent fees shall be coordinated with legal counsel for
referral to the Department of Justice, if deemed appropriate.
Subpart 3003.5--Other Improper Business Practices
3003.502 Subcontractor kickbacks.
3003.502-2 Subcontractor kickbacks.
(g) The DHS OIG shall receive the prime contractor or
subcontractors written report.
Subpart 3003.9--Whistleblower Protections for Contractor Employees
3003.901 Definitions.
Authorized official of an agency means the Department of Homeland
Security's CPO.
PART 3004--ADMINISTRATIVE MATTERS
Subpart 3004.1--Contract Execution
Sec.
3004.103 Contract clause.
Subpart 3004.4--Contract Clause
3004.470-4 Contract clause.
Subpart 3004.8--Government Contract Files
3004.804 Closeout of contract files.
3004.804-1 Closeout by the office administering the contract.
3004.804-5 Procedures for closing out contract files.
3004.804-570 Supporting closeout documents.
Subpart 3004.1--Contract Execution
3004.103 Contract clause.
Insert the clause at (FAR) 48 CFR 52.204-1, Approval of Contract,
in each solicitation where approval to award the resulting contract is
required above the contracting officer level.
Subpart 3004.4--Contract Clause
3004.470-4 Contract clause.
The contracting officer shall insert a clause substantially the
same as the clause at (HSAR) 48 CFR 3052.204-70, Security Requirements
for Unclassified Information Technology Resources, in solicitations and
contracts which require submission of an IT Security Plan.
Subpart 3004.8--Government Contract Files
3004.804 Closeout of contract files.
3004.804-1 Closeout by the office administering the contract.
(b) The quick closeout procedures under (FAR) 48 CFR 42.708 may be
used for the settlement of indirect costs under contracts when the
estimated amount (excluding any fixed fee) of the contract is $3
million or less if determined appropriate by the contracting officer.
3004.804-5 Procedures for closing out contract files.
3004.804-570 Supporting closeout documents.
(a) When applicable and prior to contract closure, the contracting
officer shall obtain the listed DHS and Department of Defense (DOD)
forms from the contractor for closeout.
(1) DHS Form 0700-03, Contractor's Release (e.g., see (FAR) 48 CFR
52.216-7);
(2) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates,
Credits and Other Amounts (e.g., see (FAR) 48 CFR 52.216-7);
[[Page 67876]]
(3) DHS Form 0700-01, Cumulative Claim and Reconciliation Statement
(e.g., see (FAR) 48 CFR 4.804-5(a)(13); and
(4) DD Form 882, Report of Inventions and Subcontracts (e.g., see
(FAR) 48 CFR 52.227-14).
(b) The forms listed in this section (see (HSAR) 48 CFR part 3053)
are used primarily for the closeout of cost-reimbursement, time-and-
materials, and labor-hour contracts. The forms may also be used for
closeout of other contract types to protect the Government's interest.
PART 3005--PUBLICIZING CONTRACT ACTIONS
Subpart 3005.4--Release of Information
Sec.
3005.402 General public.
Subpart 3005.90--Publicizing Contract Actions for Personal Services
Contracting
3005.9000 Applicability (USCG).
Subpart 3005.4--Release of Information
3005.402 General public.
Requests for other specific records information shall be processed
according to the DHS Freedom of Information Act rules and regulations
(HSAR) 48 CFR 3024.203.
Subpart 3005.90--Publicizing Contract Actions for Personal Services
Contracting.
3005.9000 Applicability (USCG).
Contracts awarded by the U.S. Coast Guard using the procedures in
(HSAR) 48 CFR 3037.104-91 are expressly authorized under section 1091
of Title 10 U.S.C. as amended by Public Law 107-296, for the Coast
Guard and are exempt from the requirements of (FAR) 48 CFR part 5.
PART 3006--COMPETITION REQUIREMENTS
Subpart 3006.2--Full and Open Competition After Exclusion of Sources
Sec.
3006.202 Establishing or maintaining alternative sources.
Subpart 3006.3--Other Than Full and Open Competition
3006.302 Circumstances permitting other than full and open
competition.
3006.302-7 Public interest.
Subpart 3006.5--Competition Advocates
3006.501 Requirement.
3006.502 Duties and responsibilities.
Subpart 3006.90--Competition Requirements for Personal Services
Contracting
3006.9000 Applicability (USCG).
Subpart 3006.2--Full and Open Competition After Exclusion of
Sources
3006.202 Establishing or maintaining alternative sources.
(b)(1) The HCA is delegated authority to approve a D&F in support
of a contract action award under the authority of (FAR) 48 CFR
6.202(a). Submit D&F in the format per (HSAR) 48 CFR 3001.704.
Subpart 3006.3--Other Than Full and Open Competition
3006.302 Circumstances permitting other than full and open
competition.
3006.302-7 Public interest.
(c)(1)(ii) Requests shall be prepared in writing by the contracting
officer, using the format found in (HSAR) 48 CFR 3001.704, and
submitted through the HCA to the CPO for review and transmittal to the
Secretary for approval.
Subpart 3006.5--Competition Advocates
3006.501 Requirement.
The DHS Senior Competition Advocate (SCA) is located in the Office
of the Chief Procurement Officer (OCPO).
3006.502 Duties and responsibilities.
(a) OE competition advocates will submit an annual report to the
Departmental Advocate for Competition.
Subpart 3006.90--Competition Requirements For Personal Services
Contracting
3006.9000 Applicability (USCG).
Contracts awarded by the U.S. Coast Guard using the procedures in
(HSAR) 48 CFR 3037.104-91 are expressly authorized under Section 1091
of Title 10 U.S.C. as amended, for the Coast Guard and are exempt from
the competition requirements of (FAR) 48 CFR part 6.
PART 3007--ACQUISITION PLANNING [RESERVED]
PART 3008--REQUIRED SOURCES OF SUPPLIES AND SERVICES [RESERVED]
PART 3009--CONTRACTOR QUALIFICATIONS
Subpart 3009.1--Responsible Prospective Contractors
Sec.
3009.104-70 Prohibition on contracts with corporate expatriates.
3009.104-71 General.
3009.104-72 Definitions.
3009.104-73 Special rules.
3009.104-74 Waiver.
3009.104-75 Clause.
Subpart 3009.4--Debarment, Suspension, and Ineligibility
3009.470 Reserve Officer Training Corps and military recruiting on
campus.
3009.470-1 Definition.
3009.470-2 Policy.
3009.470-3 Procedures.
3009.470-4 Contract clause.
Subpart 3009.5--Organizational and Consultant Conflicts of Interest
3009.507 Solicitation provisions.
Subpart 3009.1--Responsible Prospective Contractors
3009.104-70 Prohibition on contracts with corporate expatriates.
3009.104-71 General.
DHS may not enter into any contract with a foreign incorporated
entity, which is treated as an inverted domestic corporation under
subsection (b) of section 835 of the Homeland Security Act, Pub. L.
107-296.
3009.104-72 Definitions.
As used in this subpart--
Expanded Affiliated Group means an affiliated group as defined in
section 1504(a) of the Internal Revenue Code of 1986 (without regard to
section 1504(b) of such Code), except that section 1504 of such Code
shall be applied by substituting `more than 50 percent' for `at least
80 percent' each place it appears.
Foreign Incorporated Entity means any entity which is, or but for
subsection (b) of section 835 of the Homeland Security Act, Pub. L.
107-296, would be, treated as a foreign corporation for purposes of the
Internal Revenue Code of 1986.
Inverted Domestic Corporation. A foreign incorporated entity shall
be treated as an inverted domestic corporation if, pursuant to a plan
(or a series of related transactions)--
[[Page 67877]]
(1) The entity completes after the date of enactment of this Act,
the direct or indirect acquisition of substantially all of the
properties held directly or indirectly by a domestic corporation or
substantially all of the properties constituting a trade or business of
a domestic partnership;
(2) After the acquisition at least 80 percent of the stock (by vote
or value) of the entity is held--
(i) In the case of an acquisition with respect to a domestic
corporation, by former shareholders of the domestic corporation by
reason of holding stock in the domestic corporation; or
(ii) In the case of an acquisition with respect to a domestic
partnership, by former partners of the domestic partnership by reason
of holding a capital or profits interest in the domestic partnership;
and
(3) The expanded affiliated group which after the acquisition
includes the entity does not have substantial business activities in
the foreign country in which or under the law of which the entity is
created or organized when compared to the total business activities of
such expanded affiliated group.
Person, domestic, and foreign have the meanings given such terms by
paragraphs (1), (4), and (5) of section 7701(a) of the Internal Revenue
Code of 1986, respectively.
3009.104-73 Special rules.
The following special rules shall apply when determining whether a
foreign incorporated entity should be treated as an inverted domestic
corporation.
(a) Certain stock disregarded. For the purpose of treating a
foreign incorporated entity as an inverted domestic corporation these
shall not be taken into account in determining ownership:
(1) Stock held by members of the expanded affiliated group which
includes the foreign incorporated entity; or
(2) Stock of such entity which is sold in a public offering related
to the acquisition described in subsection (b)(1) of section 835 of the
Homeland Security Act (the Act), Pub. L. 107-296.
(b) Plan deemed in certain cases. If a foreign incorporated entity
acquires directly or indirectly substantially all of the properties of
a domestic corporation or partnership during the 4-year period
beginning on the date which is after the date of enactment of this Act
and which is 2 years before the ownership requirements of subsection
(b)(2) of the Act are met, such actions shall be treated as pursuant to
a plan.
(c) Certain transfers disregarded. The transfer of properties or
liabilities (including by contribution or distribution) shall be
disregarded if such transfers are part of a plan a principal purpose of
which is to avoid the purposes of this section.
(d) Special rule for related partnerships. For purposes of applying
subsection (b) to the acquisition of a domestic partnership, except as
provided in regulations, all domestic partnerships which are under
common control (within the meaning of section 482 of the Internal
Revenue Code of 1986) shall be treated as a partnership.
(e) Treatment of certain rights. (1) Certain rights shall be
treated as stocks to the extent necessary to reflect the present value
of all equitable interests incident to the transaction, as follows:
(i) Warrants;
(ii) Options;
(iii) Contracts to acquire stock;
(iv) Convertible debt instruments;
(v) Others similar interests.
(2) Rights labeled as stocks shall not be treated as stocks
whenever it is deemed appropriate to do so to reflect the present value
of the transaction or to disregard transactions whose recognition would
defeat the purpose of section 835 of the Act.
3009.104-74 Waiver.
(a) The Secretary shall waive subsection (a) of section 835 of Pub.
L. 107-296 with respect to any specific contract if the Secretary
determines that the waiver is required in the interest of homeland
security, or to prevent the loss of any jobs in the United States or
prevent the Government from incurring any additional costs that
otherwise would not occur.
(b) Contractors shall submit waiver requests to the CPO. If a
waiver is granted, a copy of the approved waiver shall be attached with
the bid or proposal.
3009.104-75 Clause.
Insert the provision (HSAR) 48 CFR 3052.209-70, Prohibition on
Contracts with Corporate Expatriates, in all solicitations and
contracts.
Subpart 3009.4--Debarment, Suspension, and Ineligibility
3009.470 Reserve Officer Training Corps and military recruiting on
campus.
3009.470-1 Definition.
Institution of higher education as used in this section, means an
institution that meets the requirements of 20 U.S.C. 1001 and includes
all subelements of such an institution.
3009.470-2 Policy.
(a) Except as provided in paragraph (b) of this subsection, 10
U.S.C. 983 prohibits the Department of Homeland Security from providing
funds by contract or grant to an institution of higher education if the
Secretary of Defense determines that the institution has a policy or
practice that prohibits or in effect prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer
Training Corps (ROTC) at that institution;
(2) A student at that institution from enrolling in a unit of the
Senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Homeland Security from gaining entry to campuses, or access to students
on campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing certain information
pertaining to students enrolled at that institution.
(b) The prohibition in paragraph (a) of this subsection does not
apply to an institution of higher education if the Secretary of Defense
determines that--
(1) The institution (and each subelement of that institution) has
ceased the policy or practice described in paragraph (a) of this
subsection; or
(2) The institution involved has a long-standing policy of pacifism
based on historical religious affiliation.
3009.470-3 Procedures.
Whenever the Secretary of Defense determines that an institution of
higher education (including any subelement of such institution) is
ineligible and the provisions of 10 U.S.C. 983 apply:
(a) The Secretary of Defense will list the institution on the List
of Parties Excluded from Federal Procurement and Nonprocurement
Programs published by the General Services Administration (also see
(FAR) 48 CFR 9.404 and 32 CFR part 216); and
(b) The Department of Homeland Security--
(1) Shall not solicit offers from, award contracts to, or consent
to subcontracts with the institution;
(2) Shall make no further payments under existing contracts with
the institution; and
(3) Shall terminate existing contracts with the institution.
3009.470-4 Contract clause.
Insert the clause at (HSAR) 48 CFR 3052.3009-71, Reserve Officer
Training Corps and Military Recruiting on Campus, in all solicitations
and
[[Page 67878]]
contracts with institutions of higher education.
Subpart 3009.5--Organizational and Consultant Conflicts of Interest
3009.507 Solicitation provisions.
The contracting officer may insert the provision at (HSAR) 48 CFR
3052.209-72, ``Disclosure of Conflicts of Interest'' in all
solicitations for negotiated acquisitions, and when simplified
acquisitions procedures in (FAR) 48 CFR Part 13, are not used. The
contracting officer shall ensure the conditions enumerated in (FAR) 48
CFR 9.507-2 warrant inclusion.
PART 3010--MARKET RESEARCH [RESERVED]
PART 3011--DESCRIBING AGENCY NEEDS
Subpart 3011.1--Selecting and Developing Requirements Documents
Sec.
3011.103 Market acceptance.
Subpart 3011.2--Using and Maintaining Requirements
3011.204-70 Solicitation provisions and contract clauses.
3011.204-90 Solicitation provisions and contract clause (USCG).
Subpart 3011.5--Liquidated Damages
3011.501 Policy.
Subpart 3011.6--Priorities and Allocations
3011.602 General.
Subpart 3011.1--Selecting and Developing Requirements Documents
3011.103 Market acceptance.
(a) Contracting officers may act on behalf of the head of the
agency in this subpart only. Contracting officers may, under
appropriate circumstances, require offerors to make the required
demonstrations.
Subpart 3011.2--Using and Maintaining Requirements Documents
3011.204-70 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at (HSAR) 48 CFR
3052.211-70, Index for Specifications, when an index or table of
contents may be furnished with the specification.
3011.204-90 Solicitation provision and contract clause (USCG).
(a) For U.S. Coast Guard contracts, the contracting officer shall
insert the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding
Requirement, (also see (HSAR) 48 CFR 3013.302-70) when the bar coding
of supplies is necessary.
(b) See (HSAR) 48 CFR 3013.302-590 for a provision which is
required when the USCG clause at HSAR 3052.211-90, Bar Coding
Requirement, is used with simplified acquisition procedures.
Subpart 3011.5--Liquidated Damages
3011.501 Policy.
(d) The HCA may reduce or waive the amount of liquidated damages
assessed under a contract, if the Commissioner, Financial Management
Service, or designee approves.
Subpart 3011.6--Priorities and Allocations
3011.602 General.
(c) The following DHS OEs may assign priority ratings on contracts
and orders placed with contractors to acquire products, materials, and
services under the Defense Priorities and Allocations System (DPAS)
regulations (15 CFR part 700):
(1) The U.S. Coast Guard in support of certified national defense
related programs; and
(2) The Federal Emergency Management Agency in support of emergency
preparedness activities.
PART 3012--ACQUISITION OF COMMERCIAL ITEMS [RESERVED]
PART 3013--SIMPLIFIED ACQUSITION PROCEDURES
Subpart 3013.1--Procedures
Sec.
3013.106 Soliciting competition, evaluation of quotations or offers,
award and documentation.
3013.106-190 Soliciting competition (USCG).
Subpart 3013.3--Simplified Acquisition Methods
3013.302 Purchase orders.
3013.302-590 Clauses (USCG).
Subpart 3013.70--Special Streamlined Acquisition Authority
3013.7000 General.
3013.7001 Delegations.
3013.7002 Reporting requirements.
3013.7003 Micro-purchase authority.
3013.7004 Simplified acquisition authority.
3013.7005 Test program for certain commercial items.
Subpart 3013.1--Procedures
3013.106 Soliciting competition, evaluation of quotations or offers,
award and documentation.
3013.106-190 Soliciting competition (USCG).
For the U.S. Coast Guard, the contracting officer shall insert the
USCG provision at (HSAR) 48 CFR 3052.213-90, Evaluation Factor for
Coast Guard Performance of Bar Coding Requirement, in requests for
quotations when the USCG clause at (HSAR) 48 CFR 3052.211-90, Bar
Coding Requirement, is used with simplified acquisition procedures.
Subpart 3013.3--Simplified Acquisition Methods
3013.302 Purchase orders.
3013.302-590 Clauses (USCG).
For the U.S. Coast Guard, the contracting officer shall insert the
USCG clause at (HSAR) 48 CFR 3052.211-90, Bar Coding Requirement, in
requests for quotations and purchase orders issued by the Inventory
Control Points when bar coding of supplies is necessary.
Subpart 3013.70--Special Streamlined Acquisition Authority
3013.7000 General.
(a) The Secretary may use special streamlined acquisition authority
set forth in Public Law 107-296, section 833, with respect to any
procurement made during the period beginning on November 25, 2002 and
ending September 30, 2007 where if the Secretary determines in writing
the mission of the Department (described in Pub. L. 107-296, section
101) would be seriously impaired without the use of such authorities.
(b) The Secretary may deem any item or service to be a commercial
item for the purpose of federal procurement laws for procurements
described in (HSAR) 48 CFR 3013.7005.
3013.7001 Delegations.
The Secretary may delegate this authority to an officer of the
Department who is appointed by the President with the advice and
consent of the Senate. Delegations of this authority are discussed in
HSAM 3013.
3013.7002 Reporting requirements.
(a) The Secretary shall submit to the Committee on Government
Reform of the House of Representatives and the Committee on
Governmental Affairs of the Senate--
(1) Notification of such determination; and
(2) The justification for such determination.
(b) This report shall be submitted no later than seven days after
the date of any determination. Reporting requirements and procedures
are discussed in HSAM 3013.
[[Page 67879]]
3013.7003 Micro-purchase authority.
(a) When the streamlined acquisition authority is exercised, the
micro-purchase threshold is raised to $7,500.
(b) The authority in this section may be exercised only by
individuals designated by the Secretary. The number of employees shall
be--
(1) Fewer than the number of employees of the Department that are
authorized to make purchases without obtaining competitive quotations.
(2) Sufficient to ensure the geographic dispersal of the
availability of the use of the procurement authority under such
paragraph at locations reasonably considered to be potential terrorist
targets; and
(3) Sufficiently limited to allow for careful monitoring of
employees designated under each paragraph.
(c) Procurements made under this authority shall be subject to
review by a designated supervisor on not less than a monthly basis. The
supervisor responsible for the review shall be responsible for no more
than seven employees making procurements under this authority.
3013.7004 Simplified acquisition authority.
When the streamlined acquisition authority is exercised, the
simplified acquisition threshold shall be:
(a) $200,000 in the case of a contract to be awarded and performed,
or purchase to be made, within the United States; and
(b) $300,000 in the case of a contract to be awarded and performed,
or purchase to be made, outside of the United States.
3013.7005 Test program for certain commercial items.
When the streamlined authority is exercised, the $5,000,000
limitation provided in (FAR) 48 CFR subpart 13.5 is increased to
$7,500,000.
PART 3014--SEALED BIDDING [RESERVED]
PART 3015--CONTRACTING BY NEGOTIATION
Subpart 3015.2--Solicitation and Receipt of Proposals andInformation
Sec.
3015.204-3 Contract clauses.
3015.207-70 Handling proposals and information.
Subpart 3015.4--Contract Pricing
3015.404-470 Payment of profit or fee.
Subpart 3015.6--Unsolicited Proposals
3015.602 Policy.
3015.603 General.
3015.604 Agency points of contact.
3015.606 Agency procedures.
3015.606-1 Receipt and initial review.
3015.606-2 Evaluation.
Subpart 3015.2--Solicitation and Receipt of Proposals and
Information
3015.204-3 Contract clauses.
The contracting officer shall insert clause (HSAR) 48 CFR 3052.215-
70, Key Personnel or Facilities, in solicitations and contracts when
the selection for award is substantially based on the offeror's
possession of special capabilities regarding personnel or facilities.
3015.207-70 Handling proposals and information.
(b) Proposals and information may be released outside the
Government for evaluation and similar purposes if qualified personnel
are not available to thoroughly evaluate or analyze proposals or
information. The contracting officer shall document the file in such
cases.
Subpart 3015.4--Contract Pricing
3015.404-470 Payment of profit or fee.
The contracting officer shall not pay profit or fee on
undefinitized contracts or undefinitized contract modifications. Any
profit or fee earned shall be paid after the contract or modification
is definitized.
Subpart 3015.6--Unsolicited Proposals
3015.602 Policy.
The Department of Homeland Security (DHS) encourages new and
innovative proposals and ideas that will sustain or enhance the DHS
mission, which is stipulated in the Homeland Security Act of 2002, Pub.
L. 107-296.
3015.603 General.
(a) Costs associated with the time and effort to prepare a proposal
are solely the responsibility of and assumed by the offeror that is
submitting the proposal.
3015.604 Agency points of contact.
(a) The DHS does not have a central clearinghouse for distributing
information or assistance regarding unsolicited proposals. Each HCA is
responsible for disseminating the information required at (FAR) 48 CFR
15.604(a). General information concerning DHS's scope of
responsibilities and functions is available at http://www.dhs.gov/dhspublic/.
3015.606 Agency procedures.
(a) The agency authority to establish procedures for receiving,
reviewing and evaluating, and timely disposing of unsolicited
proposals, consistent with the requirements of (FAR) 48 CFR 15.6 and
this subpart, is delegated to each HCA.
(b) The agency authority to establish points of contact (see (FAR)
48 CFR 15.604) to coordinate the receipt and handling of unsolicited
proposals is delegated to each HCA. Contracting offices are designated
as the receiving point for unsolicited proposals. Persons within DHS
(e.g., technical personnel) who receive proposals shall forward them to
their cognizant contracting office.
3015.606-1 Receipt and initial review.
(a) The agency contact point shall make an initial review
determination within seven calendar days after receiving a proposal.
(b) If the proposal meets the requirements at (FAR) 48 CFR 15.606-
1(a), the agency contact point shall acknowledge receipt within three
calendar days after making the initial review determination and advise
the offeror of the general timeframe for completing the evaluation.
(c) If the proposal does not meet the requirements of (FAR) 48 CFR
15.606-1(a), the agency contact point shall return the proposal within
three calendar days after making the determination. The offeror shall
be informed, in writing, of the reasons for returning the proposal.
3015.606-2 Evaluation.
(a) Comprehensive evaluations should be completed within sixty
calendar days after making the initial review determination. If
additional time is needed, then the agency contact point shall advise
the offeror accordingly and provide a new evaluation completion date.
The evaluating office shall neither reproduce nor disseminate the
proposal to other offices without the consent of the contracting office
from which the proposal was received for evaluation. If the evaluating
office requires additional information from the offeror, the evaluator
shall convey this request to the responsible contracting office. The
evaluator shall not directly contact the proposal originator.
(b) If the evaluators recommend accepting the proposal, the
responsible contracting officer shall ensure compliance with all of the
requirements of (FAR) 48 CFR 15.607.
PART 3016--TYPES OF CONTRACTS
Subpart 3016.2--Fixed-Price Contracts
Sec.
3016.203 Fixed-price contracts with economic price adjustment.
3016.203-4 Contract clauses.
3016.203-470 Solicitation provision.
[[Page 67880]]
Subpart 3016.4--Incentive Contracts
3016.406 Contract clauses.
Subpart 3016.5--Indefinite-Delivery Contracts
3016.505 Ordering.
Subpart 3016.6--Time-and-Materials, Labor-Hour, and Letter Contracts
3016.603 Letter contracts.
3016.603-4 Contract clauses.
Subpart 3016.2--Fixed-Price Contracts
3016.203 Fixed price contracts with economic price adjustments.
3016.203-4 Contract clauses.
(d)(2) Any clause using this method shall be prepared and approved
by the contracting officer.
3016.203-470 Solicitation provision.
The contracting officer shall insert a provision substantially the
same as (HSAR) 48 CFR 3052.216-70, Evaluation of Offers Subject to an
Economic Price Adjustment Clause, in solicitations containing an
economic price adjustment clause.
Subpart 3016.4--Incentive Contracts
3016.406 Contract clauses.
(e)(1)(i) The contracting officer shall insert a clause
substantially the same as (HSAR) 48 CFR 3052.216-71, Determination of
Award Fee, in solicitations and contracts that includes an award fee.
(ii) The contracting officer shall insert a clause substantially
the same as (HSAR) 48 CFR 3052.216-72, Performance Evaluation Plan, in
all solicitations and contracts that includes an award fee.
(iii) The contracting officer shall insert a clause substantially
the same as (HSAR) 48 CFR 3052.216-73, Distribution of Award Fee, in
all solicitations and contracts that includes an award fee.
Subpart 3016.5--Indefinite-Delivery Contracts
3016.505 Ordering.
(b)(5) The OE Competition Advocate is designated as the OE Task and
Delivery Order Ombudsman, unless otherwise provided in OE procedures.
(i) If any corrective action is needed after reviewing complaints
from contractors on task and delivery order contracts, the OE Ombudsman
shall provide a written determination of such action to the contracting
officer.
(ii) Issues that cannot be resolved within the OE, shall be
forwarded to the DHS Task and Delivery Order Ombudsman for review and
resolution.
Subpart 3016.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
3016.603 Letter contracts.
3016.603-4 Contract clauses.
The contracting officer shall insert a clause substantially the
same as (HSAR) 48 CFR 3052.216-74, Settlement of Letter Contract, in
all definitized letter contracts.
PART 3017--SPECIAL CONTRACTING METHODS
Subpart 3017.2--Options
Sec.
3017.202 Use of options.
Subpart 3017.4--Leader Company Contracting
3017.402 Limitations.
Subpart 3017.70--Energy Savings Performance Contracts
3017.7000 Policy.
Subpart 3017.90--Fixed Price Contracts for Vessel Repair, Alteration or
Conversion
3017.9000 Clauses (USCG).
Subpart 3017.2--Options.
3017.202 Use of options.
(a) Contracting officers shall not use unpriced options.
Subpart 3017.4--Leader Company Contracting
3017.402 Limitations.
(a)(4) Submit requests per (HSAR) 48 CFR 3001.7000(a).
Subpart 3017.70--Energy Savings Performance Contracts
3017.7000 Policy.
DHS and its OEs may enter into Energy Savings Performance Contracts
under 42 U.S.C. 8287, as amended subject to the requirements of 10 CFR
part 436. Proposed contracts under this section shall be coordinated
with the CPO.
Subpart 3017.90--Fixed Price Contracts for Vessel Repair,
Alteration or Conversion
3017.9000 Clauses (USCG).
For the U.S. Coast Guard, the following clauses are to be used in
specific solicitations and contracts:
(a) The clauses in (HSAR) 48 CFR 3052.217-90 through (HSAR) 48 CFR
3052.217-93 and (HSAR) 48 CFR 3052.217-95 through (HSAR) 48 CFR
3052.217-99 shall be included and clause (HSAR) 48 CFR 3052.217-94 may
be included in sealed bid fixed-price solicitations and contracts for
vessel repair, alteration, or conversion which are to be performed
within the United States, its possessions, or Puerto Rico. The
contracting officer may, in whole or in part (such as after incidents),
increase the dollar amounts in the clause at (HSAR) 48 CFR 3052.217-
95(b)(6) and (c)(1) consistent with contract size, inflation, and other
circumstances.
(b) Unless inappropriate, the clauses in (HSAR) 48 CFR 3052.217-90
through (HSAR) 48 CFR 3052.217-93 and (HSAR) 48 CFR 3052.217-95 through
(HSAR) 48 CFR 3052.217-99 should be included and (HSAR) 48 CFR
3052.217-94 may be included in negotiated solicitations and contracts
to be performed outside the United States. The contracting officer may,
in whole or in part (such as after incidents), increase the dollar
amounts in the clause at (HSAR) 48 CFR 3052.217-95(b)(6) and (c)(1)
consistent with contract size, inflation, and other circumstances.
(c) The clause at (HSAR) 48 CFR 3052.217-100, Guarantee, shall be
used where general guarantee provisions are deemed desirable by the
contracting officer.
(1) When inspection and acceptance tests will afford full
protection to the Government in ascertaining conformance to
specifications and the absence of defects and deficiencies, no
guarantee clause for that purpose shall be included in the contract.
(2) The customary guarantee period, to be inserted in the first
sentence of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee, is 60
days. However, in certain instances, the contracting officer may desire
to include a clause in a contract for a guarantee period of more than
60 days. In such instances:
(i) Where, after full inquiry, it has been determined that such
longer guarantee period will not involve increased costs, a longer
guarantee period may be substituted by the contracting officer for the
usual 60 days; or
(ii) Where the full inquiry discloses that such longer guarantee
period will involve, or is reasonably expected to involve, increased
costs, such facts and the reasons for the need for such longer period
shall be set forth in letter form to the COCO, requesting approval for
use of guarantee period in excess of 60 days. Upon approval, the longer
period may be inserted by the contracting officer in the first sentence
of the clause at (HSAR) 48 CFR 3052.217-100, Guarantee.
[[Page 67881]]
PART 3018--[RESERVED]
PART 3019--SMALL BUSINESS PROGRAMS
Subpart 3019.2--Policies
Sec.
3019.201 General policy.
Subpart 3019.7--The Small Business Subcontracting Program
3019.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
3019.705-1 General support for the program.
3019.708 Contract clauses.
3019.708-70 DHS solicitation and contract clauses.
Subpart 3019.2--Policies
3019.201 General policy.
(d) The Director, Office of Small and Disadvantaged Business
Utilization is responsible for the implementation and execution of the
small and small disadvantaged business programs required by the Small
Business Act.
Subpart 3019.7--The Small Business Subcontracting Program
3019.705 Responsibilities for the contracting officer under the
subcontracting program.
3019.705-1 General support for the program.
Contracting officers will consider making the submission of a
subcontracting plan part of the evaluation criteria. Contracting
officers may also consider an offerors past performance in previous
subcontracting plan goals and efforts to achieve those goals.
3019.708 Contract clauses.
3019.708-70 DHS solicitation and contract clauses.
(a) The contracting officer shall insert the clause at (HSAR) 48
CFR 3052.219-70, Small Business and Small Disadvantaged Business
Subcontracting Reporting, in solicitations and contracts containing the
clause at (FAR) 48 CFR 52.219-9.
(b) The contracting officer shall insert the clause at (HSAR) 48
CFR 3052.219-71, DHS Mentor-Prot[eacute]g[eacute] Program in all
solicitations that anticipate the need for a subcontracting plan.
(c) The contracting officer shall insert the clause at (HSAR) 48
CFR 3052.219-72, Evaluation of Prime Contractor Participation in the
Mentor-Prot[eacute]g[eacute] Program, in all solicitations containing
(HSAR) 48 CFR 3052.219-71, Mentor-Prot[eacute]g[eacute] Program and
(FAR) 48 CFR 52.219-9 Small Business Subcontracting Plan.
PART 3020--[RESERVED]
PART 3021--[RESERVED]
PART 3022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 3022.1--Basic Labor Policies
Sec.
3022.101 Labor relations.
3022.101-70 Admittance of union representatives to DHS
installations.
3022.101-71 Contract clauses.
Subpart 3022.4--Labor Standards for Contracts Involving Construction
3022.406 Administration and enforcement.
3022.406-9 Withholding from or suspension of contract payments.
Subpart 3022.90-- Local Hire (USCG)
3022.9000 Policy (USCG).
3022.9001 Contract clause (USCG).
Subpart 3022.1--Basic Labor Policies
3022.101 Labor relations.
3022.101-70 Admittance of union representatives to DHS installations.
(a) It is the policy of DHS to admit labor union representatives of
contractor employees to DHS installations to visit work sites and
transact labor union business with contractors, their employees, or
union stewards pursuant to existing union collective bargaining
agreements. Their presence shall not interfere with the contractor's
work progress under a DHS contract nor violate safety or security
regulations that may be applicable to persons visiting the
installation. Union representatives will not be permitted to conduct
meetings, collect union dues, or make speeches concerning union matters
while visiting a work site.
(b) Whenever a union representative is denied entry to a work site,
the person denying entry shall make a written report to the DHS labor
coordinator and OE labor advisor, if any, within two working days after
the request for entry is denied. The report shall include the reason(s)
for the denial, the name of the representative denied entry, the union
affiliation and number, and the name and title of the person that
denied the entry.
3022.101-71 Contract clauses.
(a) The contracting officer, may, when applicable, insert the
clause at (HSAR) 48 CFR 3052.222-70, Strikes or Picketing Affecting
Timely Completion of the Contract Work, in solicitations and contracts.
(b) The contracting officer may, when applicable, insert the clause
at (HSAR) 48 CFR 3052.222-71, Strikes or Picketing Affecting Access to
a DHS Facility, in solicitations and contracts.
Subpart 3022.4--Labor Standards for Contracts Involving
Construction
3022.406 Administration and enforcement.
3022.406-9 Withholding from or suspension of contract payments.
(c) Disposition of contract payments withheld or suspended.
(1) Forwarding wage underpayments to the Comptroller General. The
contracting officer shall ensure that a completed DHS Form 0700-04,
Employee Claim for Wage Restitution, is obtained from each employee
claiming restitution under the contract. The Comptroller General
(Claims Division) shall receive this form with a completed SF 1093,
Schedule of Withholding Under the Davis-Bacon Act and/or the Contract
Work Hours and Safety Standards Act, before payment can be made to the
employee.
Subpart 3022.90--Local Hire (USCG)
3022.9000 Policy (USCG).
As required by 14 U.S.C. 666, the U.S. Coast Guard shall include a
provision for local hire in each contract for construction or services
to be performed in whole or in part in a State that has an unemployment
rate in excess of the national average rate of unemployment as
determined by the Secretary of Labor.
3022.9001 Contract clause (USCG).
For the U.S. Coast Guard, the contracting officer shall insert the
USCG clause at (HSAR) 48 CFR 3052.222-90, Local Hire Provision, in all
solicitations and contracts as stated in (HSAR) 48 CFR 3022.9000.
PART 3023--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 3023.3--Hazardous Material Identification and Material Safety
Data
Sec.
3023.303 Contract clause.
Subpart 3023.5--Drug-Free Workplace
3023.501 Applicability.
[[Page 67882]]
3023.506 Suspension of payments, termination of contract, and
debarment and suspension actions.
Subpart 3023.10--Federal Compliance with Right-to-Know Laws and
Pollution Prevention Requirements
3023.1002 Applicability.
Subpart 3023.90--Safety Requirements for USCG Contracts
3023.9000 Contract Clause (USCG).
Subpart 3023.3--Hazardous Material Identification and Material
Safety Data
3023.303 Contract clause.
The contracting officer shall insert the clause at (HSAR) 48 CFR
3052.223-70, Removal or Disposal of Hazardous Substances--Applicable
Licenses and Permits, in solicitations and contracts involving the
removal or disposal of hazardous waste material.
Subpart 3023.5--Drug-Free Workplace
3023.501 Applicability.
(d) The head of the law enforcement organizational element may
determine that (FAR) 48 CFR 23.501 does not apply. This authority may
not be redelegated.
3023.506 Suspension of payments, termination of contract, and
debarment and suspension actions.
(e) Submit requests per (HSAR) 48 CFR 3001.7000(b).
Subpart 3023.10--Federal Compliance With Right-to-Know Laws and
Pollution Requirements
3023.1002 Applicability.
DHS MD 5110, Environmental Compliance, provides guidance and
direction for compliance with environmental laws.
Subpart 3023.90--Safety Requirements for USCG Contracts
3023.9000 Contract clause (USCG).
For the U.S. Coast Guard, where all or part of a contract will be
performed on Government-owned or leased property, the contracting
officer shall insert the clause at (HSAR) 48 CFR 3052.223-90, Accident
and Fire Reporting.
PART 3024--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 3024.1--Protection of Individual Privacy
Sec.
3024.102-70 General.
Subpart 3024.2--Freedom of Information Act
3024.203 Policy.
Subpart 3024.1--Protection of Individual Privacy
3024.102-70 General.
Procedures for implementing the Privacy Act of 1974 are contained
in Departmental regulations under 6 CFR part 5, subpart B, Privacy Act.
Subpart 3024.2--Freedom of Information Act
3024.203 Policy.
(a) The Department's implementation of the Freedom of Information
Act is codified in regulations 6 CFR part 5, subpart B, FOIA.
Information request concerning awards beyond those routinely handled by
contracting officers (e.g., identification of successful offerors,
public announcements, debriefings, surety notices under HSAR 3028.106-
6) shall be submitted to the FOIA Office of the Organizational Element
making the award. The FOIA office for the DHS Office of Operations
only, is Departmental Disclosure Officer (DDO), DHS, Washington, DC
20528 or [email protected].
(b) See (FAR) 48 CFR 15.207(b) on safeguarding proposals.
PART 3025--FOREIGN ACQUISITION--[RESERVED]
PART 3026--OTHER SOCIOECONOMIC PROGRAMS--[RESERVED]
PART 3027--PATENTS, DATA, AND COPYRIGHTS
Subpart 3027.2--Patents
Sec.
3027.205 Adjustment of royalties.
3027.208 Use of patented technology under the North American Free
Trade Agreement.
Subpart 3027.3--Patent Rights Under Government Contracts
3027.304-1 General.
3027.304-5 Appeals.
3027.305-4 Administration of Patent Rights Clause.
3027.306 Licensing background patent rights to third parties.
Subpart 3027.4--Rights in Data and Copyrights
3027.404 Basic Rights in Data clause.
3027.409 Solicitation provisions and contract clauses.
Subpart 3027.2--Patents
3027.205 Adjustment of royalties.
(a) Reports shall be made to OE legal counsel. Contracting Officers
shall coordinate actions with the COCO and HCA.
3027.208 Use of patented technology under the North American Free
Trade Agreements.
(f) Contracting officers shall ensure compliance.
Subpart 3027.3--Patent Rights under Government Contracts
3027.304-1 General.
Interim and final invention reports and notification of all
subcontracts for experimental, developmental, or research work (FAR) 48
CFR 27.304-1(e)(2)(ii) may be submitted on DD Form 882, Report of
Inventions and Subcontracts.
3027.304-5 Appeals.
(a) Contracting officers are authorized to take the specified
actions.
(b) Appeals shall be made to the CPO.
3027.305 Administration of Patent Rights Clauses.
3027.305-4 Conveyance of invention rights acquired by the Government.
The contracting officer shall ensure that solicitations and
contracts which include a patent rights clause include a means for the
contractor to report inventions made in the course of contract
performance and at contract completion. This requirement may be
fulfilled by requiring the contractor to submit a DD Form 882, Report
of Inventions and Subcontract.
3027.306 Licensing background patent rights to third parties.
(b) The CPO shall make the required determinations and
notifications under this subpart.
Subpart 3027.4--Rights in Data and Copyrights
3027.404 Basic rights in data clause.
(f)(1)(iii) The DHS will use Alternate IV of the (FAR) 48 CFR
clause 52.227-14 in all contracts containing the basic clause, unless
the HCA approves an exclusion. Approval at a level above the
contracting officer is required for the contract to exclude items or
categories of data from Alternative IV.
3027.409 Solicitation provisions and contract clauses.
Alternate IV of the (FAR) 48 CFR clause 52.227-14 shall be included
in solicitations and contracts containing the basic clause unless the
HCA approves an exclusion. Additional non-conflicting alternates may be
used.
PART 3028--BONDS AND INSURANCE
Subpart 3028.1--Bonds and Other Financial Protections
Sec.
[[Page 67883]]
3028.106 Administration.
3028.106-6 Furnishing information.
3028.106-70 Execution and administration of bonds.
3028.106-490 Contract clause (USCG).
Subpart 3028.3--Insurance
3028.306 Insurance under fixed-price contracts.
3028.306-90 Contracts for lease of aircraft (USCG).
3028.307 Insurance under cost-reimbursement contracts.
3028.307-1 Group insurance plans.
3028.310 Contract clause for work on a Government installation.
3028.310-70 Contract clause.
3028.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
3028.311-1 Contract clause.
Subpart 3028.1--Bonds and Other Financial Protections
3028.106 Administration.
3028.106-6 Furnishing information.
(b) The contracting officer shall, upon request, furnish the name
and address of the prime contractor's surety or sureties to employees,
suppliers, and subcontractors having a contractual or employment
relationship with prime contractors, subcontractors or suppliers. When
furnishing surety information, the inquirer may also be informed that:
(1) Persons believing that they have legal remedies under the
Miller Act are cautioned to consult their own legal advisor regarding
the proper steps to take to obtain remedies.
(2) On construction contracts exceeding $2,000, if the contracting
officer is informed (through routine compliance checking, a complaint,
or a request for information) that a laborer, mechanic, apprentice,
trainee, watchman, or guard employed by the contractor or subcontractor
at any tier may have been paid wages less than those required by the
applicable labor standards provisions of the contract, the contracting
officer shall promptly initiate an investigation in accordance with
(FAR) 48 CFR Subpart 22.4, irrespective of the employee's rights under
the Miller Act. When an employee's request for information is involved,
the contracting officer shall inform the inquirer that such
investigation will be made. Such investigation is required pursuant to
the provisions of the Davis-Bacon Act, Contract Work Hours and Safety
Standards Act, and Copeland (Anti-Kickback) Act for assuring proper
payment to such employees.
(c) When furnishing a copy of a payment bond and contract in
accordance with (FAR) 48 CFR 28.106-6(c), the requirement for a copy of
the contract may be satisfied by furnishing a machine-duplicate copy of
the contractor's first pages which show the contract number and date,
the contractor's name and signature, the contracting officer's
signature, and the description of the contract work. The contracting
officer furnishing the copies shall place the statement ``Certified to
be a true and correct copy'' followed by a signature, title and name of
the OE. The fee for furnishing the requested certified copies shall be
determined according to the DHS Freedom of Information Act regulation,
6 CFR part 5, subpart B, FOIA.
3028.106-70 Execution and administration of bonds.
(a) The contracting officer shall notify the surety within 30 days,
of the contractor's failure to perform in accordance with the terms of
the contract.
(b) When a partnership is a principal on a bond, the names of all
the members of the firm shall be listed in the bond following the name
of the firm, and the phrase ``a partnership composed of.'' If a
principal is a corporation, the state of incorporation shall also
appear on the bond.
(c) Performance or payment bond(s) other than an annual bond shall
not predate the contract to which it pertains.
(d) Bonds may be filed with the original contract to which they
apply, or all bonds can be separately maintained and reviewed quarterly
for validity. If separately maintained, each contract file shall cross-
reference the applicable bonds.
3028.106-490 Contract clause (USCG).
For the U.S. Coast Guard, the contracting officer shall insert the
USCG clause at (HSAR) 48 CFR 3052.228-90. Notification of Miller Act
Payment Bond Protection, in solicitation and contracts, and shall
require its first-tier subcontractors to insert the clause in all of
their subcontracts, when payment bonds are required.
Subpart 3028.3--Insurance
3028.306 Insurance under fixed-price contracts.
3028.306-90 Contracts for lease of aircraft (USCG).
(a) For the U.S. Coast Guard, the contracting officer shall insert
the clauses at (HSAR) 48 CFR 3052.228-91 through 3052.228-93, unless
otherwise indicated by the specific instructions for their use, in any
contract for the lease of aircraft (including aircraft used in out-
service flight training).
(b) For the U.S. Coast Guard, the contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.228-91, Loss of or Damage to Leased
Aircraft, in any contract for the lease of aircraft, except in the
following circumstances:
(1) When the hourly rental rate does not exceed $250 and the total
rental cost for any single transaction is not in excess of $2,500:
(2) When the cost of hull insurance does not exceed 10 percent of
the contract rate; or
(3) When the lessor's insurer does not grant a credit for uninsured
hours, thereby preventing the lessor from granting the same to the
Government.
(c) For the U.S. Coast Guard, the contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.228-92, Fair Market Value of Aircraft,
when fair market value of the aircraft can be determined.
(d) 49 U.S.C. 44112, as amended, provides that no lessor of an
aircraft under a bona fide lease of 30 days or more shall be liable by
reason of his interest as lessor or title-holder of the aircraft for
any injury to or death of persons, or damage to or loss of property,
unless such aircraft is in the actual possession or control of such
person at the time of such injury, death, damage or loss. On short-term
or intermittent-use leases, however, the owner may be liable for damage
caused by operation of the aircraft. It is usual for the aircraft owner
to retain insurance covering this liability during the term of such
lease. Such insurance can, often for little or no increase in premium,
be made to cover the Government's exposure to liability as well. In
order to take advantage of this coverage, the Risks and Indemnities
clause at (HSAR) 48 CFR 3052.228-93 prescribed in paragraph (d)(1) of
this section shall be used.
(1) For the U.S. Coast Guard, the contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.228-93, Risk and Indemnities, in any
contract for out-service flight training or for the lease of aircraft
when the Government will have exclusive use of the aircraft for a
period of less than thirty days.
(2) For the U.S. Coast Guard, any contract for out-service flight
training shall include a clause in the contract schedule stating
substantially that the contractor's personnel shall at all times during
the course of the training be in command of the aircraft and that at no
time shall other personnel be permitted to take command of the
aircraft.
[[Page 67884]]
3028.307 Insurance under cost-reimbursement contracts.
3028.307-1 Group insurance plans.
Plans shall be submitted to the contracting officer, who must
obtain the advice of legal counsel.
3028.310 Contract clause for work on a Government installation.
3028.310-70 Contract clause.
Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70,
``Insurance,'' in all solicitations and contracts that contain the
clause at (FAR) 47 CFR 52.228-5.
3028.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
3028.311-1 Contract clause.
Insert a clause substantially similar to (HSAR) 48 CFR 3052.228-70,
``Insurance,'' in all solicitations and contracts that contain the
clause at (FAR) 48 CFR 52.228-7, unless waived by an official one level
above the contracting officer.
PART 3029--TAXES--[RESERVED]
PART 3030--COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 3030.2--CAS Program Requirements
Sec.
3030.201 Contract requirements.
3030.201-5 Waiver.
Subpart 3030.2--CAS Program Requirements
3030.201 Contract requirements.
3030.201-5 Waiver.
(b)(1) The CPO is authorized to waive the application of the Cost
Accounting Standards to individual firm fixed-price contracts for the
acquisition of commercial items. This authority may not be redelegated.
(2) Submit waiver requests per (HSAR) 48 CFR 3001.7000(a), for
review and transmittal by the CPO to the Cost Accounting Standard
Board.
PART 3031--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 3031.2--Contracts with Commercial Organizations
Sec.
3031.205 Selected costs.
3031.205-32 Precontract costs.
Subpart 3031.2--Contracts with Commercial Organizations
3031.205 Selected costs.
3031.205-32 Precontract costs.
(a) The decision to incur precontract costs is that of the
contractor. DHS employees may not can authorize, demand, or require a
contractor to incur precontract costs. The contracting officer must
advise the prospective contractor that any costs incurred before
contract award are incurred at the contractor's sole risk and that if
negotiations fail to result in a binding contract, payment of these
costs will not be made by the Government. See (HSAR) 48 CFR 3032.205-
32(b) regarding exception due to reconciliation of costs.
(b) When the contracting officer determines that incurring
precontract costs was necessary to meet the proposed contract delivery
schedule of a cost-reimbursement contract, the clause at (HSAR) 48 CFR
3052.231-70, Precontract Costs, may be inserted in the resultant
contract.
PART 3032--CONTRACT FINANCING
Subpart 3032.000--Scope of Part
Sec.
3032.003 Simplified acquisition procedures financing.
3032.006 Reduction or suspension of contract payments upon finding
of fraud.
3032.006-2 Definition.
3032.006-3 Responsibilities.
Subpart 3032.11--Electronic Funds Transfer
3032.1110 Solicitation provision and contract clauses.
Subpart 3032.000--Scope of Part
3032.003 Simplified acquisition procedures financing.
Contract financing may be permitted for purchases made under the
authority of (FAR) 48 CFR Part 13. This authority is delegated to COCO
and may not be redelegated.
3032.006 Reduction or suspension of contract payments upon finding of
fraud.
3032.006-2 Definition.
The CPO is the DHS remedy coordination official (RCO).
3032.006-3 Responsibilities.
(a) The CPO is authorized to establish specific procedures.
(b) Reports shall be made through the HCA to the CPO.
Subpart 3032.11--Electronic Funds Transfer
3032.1110 Solicitation provision and contract clauses.
(a)(1) Contracting officer shall insert FAR 48 CFR 52.232-33,
Payment by Electronic Funds Transfer--Central Contractor Registration,
in all proposed solicitations and contracts.
PART 3033--PROTESTS, DISPUTES, AND APPEALS
Subpart 3033.2--Disputes and Appeals
Sec.
3033.201 Definitions.
3033.211 Contracting officer's decision.
3033.214 Alternative disputes resolution (ADR).
Subpart 3033.2--Disputes and Appeals
3033.201 Definitions.
Agency Board of Contract Appeals means the Department of
Transportation Board of Contract Appeals (DOTBCA).
3033.211 Contracting officer's decision.
For DHS contracts, the Board of Contract Appeals (BCA) noted in
(FAR) 48 CFR 33.211 is the Department of Transportation Board of
Contract Appeals (DOTBCA) (S-20), 400 7th Street, S.W., Washington, DC,
20590. The DOTBCA Rules of Procedure are contained in 48 CFR Chapter
63, Part 6301. TSA shall use the DOTBCA for only Contract Disputes Act
(CDA) requirements.
3033.214 Alternative dispute resolution (ADR).
(c) The Administrative Dispute Resolution Act (ADRA) of 1996, as
amended, 5 U.S.C. 571, et seq., authorizes and encourages agencies to
use mediation, conciliation, arbitration, and other techniques for the
prompt and informal resolution of disputes, and for other purposes. The
DOTBCA ADR procedures are contained in 48 CFR chapter 63, section
6302.30, ADR Methods (Rule 30), and will be distributed to the parties,
if ADR procedures are used. These procedures may be obtained from the
DOTBCA upon request. ADR procedures may be used when--
(1) There is mutual consent by the parties to participate in the
ADR process (with consent being obtained either before or after an
issue in controversy has arisen);
(2) Prior to the submission of a claim; and
(3) In resolution of a formal claim.
[[Page 67885]]
PART 3034--MAJOR SYSTEM ACQUISITION [RESERVED]
PART 3035--RESEARCH AND DEVELOPMENT CONTRACTING
Subpart 3035.000--Scope of Part
Sec.
3035.003 Policy.
Subpart 3035.000--Scope of Part
3035.003 Policy.
(b) Cost sharing shall be determined on a case by case basis. OEs
may establish procedures for cost sharing.
(c) Recoupment shall be determined on a case-by-case basis.
Recoupment not otherwise required by law should be structured to
address factors such as recovering the Department's fair share of its
investment in nonrecurring costs related to the items acquired. Advice
of legal counsel shall be obtained prior to establishing cost sharing
policies and recoupment mechanisms under (FAR) 48 CFR 35.003(b) and
(c).
PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 3036.2--Special Aspects of Contracting for Construction
Sec.
3036.201 Evaluation of contractor performance.
Subpart 3036.5--Contract Clauses
3036-570 Special precautions for work at operating airports.
Subpart 3036.2--Special Aspects of Contracting for Construction
3036.201 Evaluation of contractor performance.
(a)(2) Performance reports shall be prepared and entered into the
Contractor Performance System (CPS) on an annual basis for contracts
exceeding one year, or as otherwise required by (FAR) 48 CFR 36.201.
Access to reports is through the CPS or the government-wide system,
Past Performance Information Retrieval System (PPIRS).
Subpart 3036.5--Contract Clauses
3036.570 Special precautions for work at operating airports.
Where any acquisition will require work at an operating airport,
insert the clause at (HSAR) 48 CFR 3052.236-70, Special Precautions for
Work at Operating Airports, in solicitations and contracts.
PART 3037--SERVICE CONTRACTING
Subpart 3037.1--Service Contracts--General
Sec.
3037.103 Contracting officer responsibility.
3037.103-70 Contractor personnel access application.
3037.103-71 Conditional access to sensitive but unclassified
information.
3037.104 Personal services contracts.
3037.104-70 Personal services contracts.
3037.104-90 Personal services contracts (USCG).
3037.104-91 Personal services with individuals under the authority
of 10 U.S.C. 1091 (USCG).
3037.110-70 Solicitation provisions and contract clauses.
Subpart 3037.1--Service Contracts--General
3037.103 Contracting officer responsibility.
3037.103-70 Contractor personnel access application.
Contractor personnel who will require recurring access to DHS
facilities as part of contract performances shall complete HSIF Form
3237, Contractor Personnel Access Application, before starting work
under the contract. The completed form shall be submitted to the
appropriate DHS office as designated in the contract. Contractor
personnel may be required to complete additional forms, as necessary.
3037.103-71 Conditional access to sensitive but unclassified
information.
Contractor personnel who will require access to sensitive but
unclassified information as part of contract performances shall
complete HSIF Form 4024, Sensitive Information Non-Disclosure
Agreement, before starting work under the contract. The completed form
shall be submitted to the appropriate DHS office as designated in the
contract. Additional requirements are established in clause (HSAR) 48
CFR 3052.237-71, Information Technology Systems Access for Contractors.
3037.104 Personal services contracts.
3037.104-70 Personal services contracts.
(b)(i) Authorization to acquire the personal services of experts
and consultants is included in Public Law 107-296, sections 832(1) and
(2). This section includes authority to use personal service contracts
without regard to the pay limitation of 5 U.S.C. 3109 when the services
are necessary due to an urgent homeland security need.
(A) Prepare each D&F in accordance with (FAR) 48 CFR 1.7 and
include a determination that--
(1) The duties are of a temporary or intermittent nature and not to
exceed one year;
(2) DHS personnel with necessary skills are not available;
(3) Excepted appointment cannot be obtained;
(4) A nonpersonal services contract is not practicable;
(5) Statutory authority, Public Law 107-297, section 832(1) or
section 832(2) and other legislation, apply;
(6) If the pay limitation of 5 U.S.C. 3109 is exceeded, the D&F
supports the rationale; and
(7) Any other determination required by statues has been made.
(B)(1) Except as provided in paragraph (b)(i)(B)(2) of this
subsection, the COCO shall approve the D&F required by paragraph
(b)(i)(A).
(2) The HCA shall approve the D&F for personal service contracts
for experts and consultant services that are acquired without regard to
the pay limitation of 5 U.S.C. 3109. This determination shall include a
finding that the services are necessary due to urgent homeland security
needs.
(i) The contract may provide for the same per diem and travel
expenses authorized for a Government employee, including actual
transportation and per diem in lieu of subsistence for travel between
home or place of business and official duty station and only for travel
outside the local area in support of the statement of work.
(ii) Coordinate benefits, taxes, personnel ceilings, and
maintenance of records with the appropriate office(s).
3037.104-90 Personal services contracts (USCG).
(a) The U.S. Coast Guard HCA may enter into medical personal
services contracts according to 10 U.S.C. 1091.
(b) The authority of 10 U.S.C. 1091(a)(2) expires December 31,
2003.
3037.104-91 Personal services contracts with individuals under the
authority of 10 U.S.C. 1091 (USCG).
(a) Health care personal services contracts awarded to individuals
shall be selected through procedures established in this section.
Selections made using the procedures in this section are exempt by
statute from (HSAR) 48 CFR part 3006 competition requirements (see
(HSAR) 48 CFR 3006.9000 (USCG)) and from (FAR) 48 CFR Part 6
competition requirements.
(b) The contracting officer shall provide adequate advance notice
of contracting opportunities to individuals residing in the area of the
facility. The notice should include the qualification criteria against
which individuals
[[Page 67886]]
responding shall be evaluated. Contracting officers shall solicit
offerors through the most effective means of seeking competition, such
as a local publication, which serves the area of the facility.
Acquisitions of health care services using personal services contracts
are exempt from posting and synopsis requirements of (FAR) 48 CFR Part
5.
(c) The contracting officer shall provide the qualifications of
individuals responding to the notice to the representative(s)
responsible for evaluation and ranking according to the evaluation
procedures. Individuals shall be considered solely on the professional
qualifications established for the particular health care services
being acquired and the Government's estimate of reasonable rates, fees,
or costs. The representative(s) responsible for the evaluation and
ranking shall provide the contracting officer with rationale for the
ranking of the individuals consistent with the required qualifications.
(d) Upon receipt of the ranked listing of offerors, the contracting
officer shall either:
(1) Enter into negotiations with the highest ranked offeror. If a
mutually satisfactory contract cannot be negotiated, the contracting
officer shall terminate negotiations with the highest ranked offeror
and enter into negotiations with the next highest, or;
(2) Enter into negotiations with all qualified offerors and select
on the basis of qualifications and rates, fees, or other costs.
(e) In the event only one individual responds to an advertised
requirement, the contracting officer is authorized to negotiate the
contract award. In this case, the individual must still meet the
minimum qualifications of the requirement and the contracting officer
must be able to make a determination that the price is fair and
reasonable.
(f) If a fair and reasonable price cannot be obtained from a
qualified individual, the requirement should be canceled and acquired
using procedures other than those set forth in this section.
(g) The total amount paid to an individual in any year for health
care services under a personal services contract shall not exceed the
paycap in COMDTINST M4200.19 (series), Coast Guard Acquisition
Procedures.
(h) The contract may provide for the same per diem and travel
expenses authorized for a Government employee, including actual
transportation and per diem in lieu of subsistence for travel between
home or place of business and official duty station and only for travel
outside the local area in support of the statement of work.
(i) Coordinate benefits, taxes and maintenance of records with the
appropriate office(s).
(j) The contracting officer shall insure that contract funds are
sufficient to cover all contingency items that may be cited in the
statement of work for health care services.
3037.110-70 Solicitation provisions and contract clauses.
(a) Contracting officers shall insert the clause at (HSAR) 48 CFR
3052.237-70, Qualifications of Contractor Employees, in all
solicitations and contracts for services, which require contract
employees to have recurring access to Government facilities, sensitive
information, including proprietary data or resources. This may include
Information Technology (IT) requirements for design, development, or
operation and maintenance of sensitive application in non-DHS or DHS
facilities.
(b) In addition to the (HSAR) clause 48 CFR 3052.237-70, the
contracting officer shall also include the contract clauses, (HSAR)
clause 48 CFR 3052.237-71, ``Information Systems Access for
Contractors'' and (HSAR) clause 48 CFR 3052.237-72, ``Contractor
Personnel Screening for Unclassified Information Technology''.
(c) The contracting officer shall also include (HSAR) clause 48 CFR
3052.204-70, ``Information Technology Security Plan'' in solicitations
and contracts when the prescription at paragraph (a) above applies.
PART 3038--FEDERAL SUPPLY SCHEDULE CONTRACTING--[RESERVED]
PART 3039--ACQUISITION OF INFORMATION TECHNOLOGY--[RESERVED]
PART 3040--[RESERVED]
PART 3041--ACQUISITION OF UTILITY SERVICES--[RESERVED]
PART 3042--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 3042.2--Contract Administration Services
Sec.
3042.202 Assignment of contract administration.
3042.202-70 Contract clauses.
Subpart 3042.15--Contractor Performance Information
3042.1502 Policy.
Subpart 3042.70--Contracting Officer's Technical Representative
3042.7000 Contract clause.
Subpart 3042.2--Contract Administration Services
3042.202 Assignment of contract administration.
3042.202-70 Contract clauses.
(a) The contracting officer may use the clause at (HSAR) 48 CFR
3052.242-70, Dissemination of Information--Educational Institutions, in
lieu of the clause at (HSAR) 48 CFR 3052.242-71, Dissemination of
Contract Information, in DHS research contracts with educational
institutions, except contracts that require the release or coordination
of information.
(b) The contracting officer may insert the clause at (HSAR) 48 CFR
3052.242-71, Dissemination of Contract Information, in all DHS
contracts except contracts that require the release or coordination of
information.
Subpart 3042.15--Contractor Performance Information
3042.1502 Policy.
(a) OEs shall use the Contractor Performance System (CPS) for
evaluating contractor performance in accordance with (FAR) 48 CFR
42.1502 and part 1503.
Subpart 3042.70--Contracting Officer's Technical Representative
3042.7000 Contract clause.
The contracting officer shall insert the clause at (HSAR) 48 CFR
3052.242-72, Contracting Officer's Technical Representative, in
solicitations and contracts when it is intended that a representative
will be assigned to the contract to perform functions of a technical
nature.
PART 3043--CONTRACT MODIFICATIONS--[RESERVED]
PART 3044--SUBCONTRACTING POLICIES AND PROCEDURES--[RESERVED]
PART 3045--GOVERNMENT PROPERTY
Subpart 3045.5--Management of Government Property in the Possession of
Contractors
Sec.
3045.505 Records and reports of Government property.
3045.505-14 Reports of Government property.
3045.505-70 Solicitation provisions and contract clauses.
3045.508 Physical inventories.
[[Page 67887]]
3045.508-2 Reporting results of inventories.
3045.508-3 Quantitative and monetary control.
3045.511 Audit of property control system.
Subpart 3045.5--Management of Government Property in the Possession
of Contractors
3045.505 Records and reports of Government property.
3045.505-14 Reports of Government property.
(a) When Government property is furnished to or acquired by the
contractor to perform the contract, the contract shall require the
contractor to submit annual reports (see (FAR) 48 CFR 45.505-14) to the
contracting officer not later than September 15 of each year. The
contractor's report shall be submitted on DHS Form 0700-05, Contractor
Report of Government Property.
3045.505-70 Solicitation provisions and contract clauses.
Contracting officers shall insert the clause at (HSAR) 48 CFR
3052.245-70 in solicitations and contracts when the contract will
require Government provided or contractor acquired property.
3045.508 Physical inventories.
3045.508-2 Reporting results of inventories.
The inventory report shall also include the following:
(a) Name and title of the individual(s) that performed the physical
inventory;
(b) An itemized, categorized listing of all property capitalized:
(1) Land and rights therein;
(2) Other real property;
(3) Plant equipment;
(4) Special test equipment; and
(5) Special tooling;
(c) An itemized listing of the property lost, damaged, destroyed,
or stolen, the circumstances surrounding each incident, and the
resolution of the incident; and
(d) Any discrepancies between the physical inventory and the
contractor's record of Government property.
3045.508-3 Quantitative and monetary control.
Contracting officers shall require the contractor to provide the
quantity and unit cost of each item of Government property reported
under (HSAR) 48 CFR 3045.508-2(b) and (c).
3045.511 Audit of property control system.
(a) The property administrator (or other Government official
authorized by the contracting officer) shall audit the contractor's
property control system whenever there are indications that the
contractor's property control system may be deficient. Examples of
deficiencies are:
(1) Failure of the contractor to acknowledge receipt of GFP;
(2) Failure of the contractor to submit the annual property reports
required by (HSAR) 48 CFR 3045.505-14;
(3) Failure of the contractor to reconcile its physical inventory
with its property control record; or
(4) Failure of the contractor to submit a Government property
listing when requested by the property administrator.
(b) When it is determined that the contractor's property control
system is deficient, the property administrator, in coordination with
the contracting officer, shall discuss the deficiencies with the
contractor. If the contractor does not take action to correct the
deficiencies, the contracting officer shall provide the contractor with
a written notice of the deficiencies and the date all deficiencies
shall be corrected.
PART 3046--QUALITY ASSURANCE
Subpart 3046.7--Warranties
Sec.
3046.702 General.
3046.702-70 Additional definitions.
3046.703 Criteria for use of warranties.
3046.705 Limitations.
3046.706 Warranty terms and conditions.
3046.790 Additional USCG definitions (USCG).
3046.791 Use of warranties in major systems acquisitions by the USCG
(USCG).
3046.791-1 Policy (USCG).
3046.791-2 Tailoring warranty terms and conditions. (USCG).
3046.791-3 Warranties on Government-furnished property (USCG).
3046.792 Cost benefit analysis (USCG).
3046.793 Waiver and notification procedures (USCG).
Subpart 3046.7--Warranties
3046.702 General.
3046.702-70 Additional definitions.
At no additional cost to the Government, means without an increase
in price for firm-fixed-price contracts, without an increase in target
or ceiling price for fixed price incentive contracts (see (FAR) 48 CFR
46.707), or without an increase in estimated cost or fee for cost-
reimbursement contracts.
Defect means any condition or characteristic in any supplies or
services furnished by the contractor under the contract that is not in
compliance with the requirements of the contract.
Design and manufacturing requirements means structural and
engineering plans and manufacturing particulars, including precise
measurements, tolerances, materials and finished product tests for the
major system being produced.
Major system means a system or major subsystem used directly by the
Department of Homeland Security (DHS) to carry out its mission(s), as
defined by HSAM Chapter 1234, Major Acquisition Policies and Procedures
(for dollar threshold applicable to U.S. Coast Guard, See Coast Guard
guidance at (HSAR) 48 CFR 3046.701-90). The term does not include:
(1) Related support equipment, such as ground-handling equipment,
training devices and accessories thereto, unless a cost effective
warranty for the system would require inclusion of such items; or
(2) Commercial items sold in substantial quantities to the general
public as described in (FAR) 48 CFR part 2.
Performance requirements means the operating capabilities,
maintenance, and reliability characteristics of a system that are
determined to be necessary for it to fulfill the requirement for which
the system is designed.
3046.703 Criteria for use of warranties.
(a) Major Systems. The use of warranties in the procurement of
major systems by the USCG is mandatory, unless waived (see USCG
guidance at (HSAR) 48 CFR 3046.792). Other OEs may use the procedures
in USCG guidance in this part as a guideline for major systems
acquisitions.
3046.705 Limitations.
(a) The following restrictions are applicable to DHS contracts:
(1) The USCG is required to include a warranty in cost
reimbursement contracts for the production of major systems
acquisitions.
(2) Any warranty on major system acquisitions shall not apply in
the case of any system or component thereof which has been furnished by
the Government to a contractor except as indicated in the USCG guidance
at (HSAR) 48 CFR 3046.791-3.
(3) Any warranty obtained shall specifically exclude coverage of
damage in time of war or national emergency.
3046.706 Warranty terms and conditions.
(a) The contracting officer, in developing the warranty terms and
conditions, shall consider the following, and, where appropriate and
cost beneficial, shall:
(1) Identify the affected line item(s) and the applicable
specification(s);
(2) Require that the line item's design and manufacture will
conform to:
(i) An identified revision of a top-level drawing; and/or
[[Page 67888]]
(ii) An identified specification or revision thereof;
(3) Require that the system conform to the specified Government
performance requirements;
(4) Require that all systems and components delivered under the
contract will be free from defects in materials and workmanship;
(5) State that in the event of failure due to nonconformance with
specification and/or defects in material and workmanship, the
contractor will bear the cost of all work necessary to achieve the
specified performance requirements, including repair and/or replacement
of all parts;
(6) Require the timely replacement/repair of warranted items and
specify lead times for replacement/repair where possible;
(7) Identify the specific paragraphs containing Government
performance requirements which must be met;
(8) Ensure that any performance requirements identified as goals or
objectives in excess of specification requirements are excluded from
the warranty provision;
(9) Define what constitutes the start of the warranty period (e.g.,
delivery, acceptance, in-service date), the ending of the warranty
(e.g., passing a test or demonstration, or operation without failure
for a specified time period), and circumstances requiring an extension
of warranty duration (e.g., extending the warranty period as a result
of mass defect correction during warranty period);
(10) Identify what transportation costs will be paid by the
contractor in conjunction with warranty coverage;
(11) Identify any conditions which will not be covered by the
warranty, other than the exclusion of combat damage; and
(12) Identify any limitation on the total dollar amount of the
contractor's warranty exposure, or agreement to share costs after a
certain dollar threshold to avoid unnecessary warranty returns.
(b) Any contract that contains a warranty clause shall contain
warranty implementation procedures, including warranty notification
content and procedures, and identify the individuals responsible for
implementation of warranty provisions. The contract may also permit the
contractor's participation in investigation of system failures,
providing that the contractor is reimbursed at established rates for
fault isolation work, and that the Government receives credit for any
payments where equipment failure is covered by warranty provisions.
3046.790 Additional USCG definitions (USCG).
For the USCG, in accordance with Public Law 99-190, the dollar
threshold as it pertains to the inclusion of a warranty in major
systems acquisitions is $10 million.
3046.791 Use of warranties in major systems acquisitions by the USCG
(USCG).
This subpart provides the policy for the USCG to use in obtaining
warranties from contractors when contracting for the acquisition of a
major system.
3046.791-1 Policy (USCG).
The USCG shall include a warranty in all contracts for major
systems acquisitions. When drafting warranty provisions/clauses for
major systems acquisitions, the contracting officer shall ensure that
the items listed at (HSAR) 48 CFR 3046.706 have been considered. The
warranty shall also meet the following requirements:
(a) For systems or components which are commercially available,
such warranty as is normally provided by the manufacturer or supplier
shall be obtained in accordance with (FAR) 48 CFR 46.703(d) and (FAR)
48 CFR 46.710(b)(2).
(b) For systems or components provided in accordance with either
design and manufacturing or performance requirements as specified in
the contract or any modification to that contract, a warranty of
compliance with the stated requirements shall be obtained.
(c) The warranty provided under paragraph (b) of this section shall
provide that in the event the major system or any component thereof
fails to meet the terms of the warranty provided, the contracting
officer may:
(1) Require the contractor to promptly take such corrective action
as the contracting officer determines to be necessary at no additional
cost to the Government, including repairing or replacing all parts
necessary to achieve the requirements set forth in the contract;
(2) Require the contractor to pay costs reasonably incurred by the
United States in taking necessary corrective action; or
(3) Equitably reduce the contract price.
(d) Any warranty shall specifically exclude coverage of combat
damage.
3046.791-2 Tailoring warranty terms and conditions (USCG).
(a) As the objectives and circumstances vary considerably among
major systems acquisition programs, contracting officers shall
appropriately tailor the warranty on a case-by-case basis, including
remedies, exclusions, limitations and durations, provided the tailoring
is consistent with the specific requirements of this subpart and (FAR)
48 CFR 46.706.
(b) Contracting officers of major systems acquisitions may exclude
from the terms of the warranty certain defects for specified supplies
(exclusions) and may limit the contractor's liability under the terms
of the warranty (limitations), as appropriate, if necessary to derive a
cost-effective warranty in light of the technical risk, contractor
financial risk, or other program uncertainties.
(c) Contracting officers are encouraged to structure a broader and
more comprehensive warranty where such is advantageous. Likewise, the
contracting officer may narrow the scope of a warranty when appropriate
(e.g., where it would be inequitable to require a warranty of all
performance requirements because a contractor had not designed the
system).
(d) Contracting officers shall not include in a warranty clause any
terms that require the contractor to incur liability for loss, damage,
or injury to third parties.
3046.791-3 Warranties on Government-furnished property (USCG).
A contractor for a major systems acquisition shall not be required
to provide the warranties specified in (HSAR) 48 CFR 3046.790-1 on any
property furnished to that contractor by the Government except for:
(a) Defects in installation; and
(b) Installation or modification in such a manner that invalidates
a warranty provided by the manufacturer of the property.
3046.792 Cost benefit analysis (USCG).
If a specific warranty is considered not to be cost beneficial by
the contracting officer, a waiver request shall be initiated in
accordance with guidance at (HSAR) 48 CFR 3046.793.
3046.793 Waiver and notification procedures (USCG).
(a) The Secretary of Homeland Security, without delegation, may
waive the requirement for a warranty for USCG major system acquisitions
when the waiver is in the interest of national defense or if the
warranty obtained would not be cost beneficial. A waiver may be granted
provided that the Committees on Appropriations of the Senate and the
House of Representatives, the Committee on Commerce, Science and
Transportation of the Senate, and the Committee on
[[Page 67889]]
Merchant Marine and Fisheries of the House of Representatives are
notified, in writing, of the Secretary's intention to waive the
warranty requirements and the reasons supporting such a determination
prior to granting the waiver. The request for Secretarial waiver shall
include, as a minimum:
(1) A brief description of the major system and its stage of
production (e.g., the number of units delivered and anticipated to be
delivered during the life of the program);
(2) The specific waiver requested, the duration of the waiver if it
is to involve more than one contract, and the rationale for the waiver;
and
(3) All documentation supporting the request for waiver, such as a
cost-benefit analysis.
(b) The waiver request shall be forwarded to the Secretary, via the
CPO. The USCG shall maintain a written record of each waiver granted
and the Congressional notification and report made, together with
supporting documentation.
PART 3047--TRANSPORTATION
Subpart 3047.3--Transportation in Supply Contracts
Sec.
3047.305 Solicitation provisions, contract clauses, and
transportation factors.
3047.305-70 Solicitation provision.
Subpart 3047.3--Transportation in Supply Contracts
3047.305 Solicitation provisions, contract clauses, and transportation
factors.
3047.305-70 Solicitation provisions.
The contracting officer shall insert the following provisions in
solicitations, as applicable:
(a) (HSAR) 48 CFR 3052.247-70, F.o.b. Origin Information, with
Alternates I or II, as applicable, shall be inserted in accordance with
(FAR) 48 CFR 47.305-3(b);
(b) (HSAR) 48 CFR 3052.247-71, F.o.b. Origin Only, shall be
inserted in accordance with (FAR) 48 CFR 47.305-3(e); and
(c) (HSAR) 48 CFR 3052.247-72, F.o.b. Destination Only, shall be
inserted in accordance with (FAR) 48 CFR 47.305-4(b).
PART 3048--VALUE ENGINEERING--[RESERVED]
PART 3049--TERMINATION OF CONTRACTS--[RESERVED]
PART 3050--EXTRAORDINARY CONTRACTUAL ACTIONS--[RESERVED]
PART 3051--USE OF GOVERNMENT SOURCES BY CONTRACTORS--[RESERVED]
PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 3052.1--Instructions for Using Provisions and Clauses
Sec.
3052.101 Using part 3052.
Subpart 3052.2--Texts of Provisions and Clauses
3052.204-70 Security requirements for unclassified information
technology resources.
3052.209-70 Prohibition on contracts with corporate expatriates.
3052.209-71 Reserve Officer Training Corps and military recruiting
on campus.
3052.209-72 Disclosure of conflicts of interest.
3052.211-70 Index for specifications.
3052.211-90 Bar coding requirement (USCG).
3052.213-90 Evaluation factor for Coast Guard performance of bar
coding requirement (USCG).
3052.215-70 Key personnel or facilities.
3052.216-70 Evaluation of offers subject to an economic price
adjustment clause.
3052.216-71 Determination of award fee.
3052.216-72 Performance evaluation plan.
3052.216-73 Distribution of award fee.
3052.216-74 Settlement of letter contract.
3052.217-90 Delivery and shifting of vessel (USCG).
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 program reporting.
3052.219-71 DHS mentor-prot[eacute]g[eacute] program.
3052.219-72 Evaluation of prime contractor participation in the DHS
mentor-prot[eacute]g[eacute] program.
3052.222-70 Strikes or picketing affecting timely completion of the
contract work.
3052.222-71 Strikes or picketing affecting access to a DHS facility.
3052.222-90 Local hire (USCG).
3052.223-70 Removal or disposal of hazardous substances--applicable
licenses and permits.
3052.223-90 Accident and fire reporting (USCG).
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).
3052.231-70 Precontract costs.
3052.236-70 Special provisions for work at operating airports.
3052.237-70 Qualifications of contractor employees.
3052.237-71 Information technology systems access for contractors.
3052.237-72 Contractor personnel screening for unclassified
information technology access.
3052.242.70 Dissemination of information--educational institutions.
3052.242-71 Dissemination of contract information.
3052.242-72 Contracting officer's technical representative.
3052.245-70 Government property reports.
3052.247-70 F.o.b. origin information.
3052.247-71 F.o.b. origin only.
3052.247-72 F.o.b. destination only.
Subpart 3052.1--Instructions for Using Provisions and Clauses
3052.101 Using part 3052.
(b) Numbering.
(2)(i) Provisions or clauses that supplement the FAR.
(A) Agency-prescribed provisions and clauses permitted by HSAR and
used on a standard basis (i.e., normally used in two or more
solicitations or contracts regardless of contract type) shall be
prescribed and contained in the HSAR. OEs desiring to use a provision
or a clause on a standard basis shall submit a request containing a
copy of the clause(s), justification for its use, and evidence of legal
counsel review to the CPO in accordance with (HSAR) 48 CFR 3001.304 for
possible inclusion in the HSAR.
(B) Provisions and clauses used on a one-time basis (i.e., non-
standard provisions and clauses) may be approved by the contracting
officer, unless a higher level is designated by the OE. This authority
is subject to:
(1) Evidence of legal counsel review in the contract file;
(2) Inserting these clauses in the appropriate sections of the
uniform contract format; and
(3) Ensuring the provisions and clauses do not deviate from the
requirements of the FAR and HSAR.
[[Page 67890]]
Subpart 3052.2--Text of Provisions and Clauses
3052.204-70 Security requirements for unclassified information--
technology resources.
As prescribed in (HSAR) 48 CFR 3004.470-4 Contract clauses, and
(HSAR) 48 CFR 3037.110-70 (a) and (b), insert a clause substantially
the same as follows:
Security Requirements for Unclassified Information Technology
Resources (Dec. 2003)
(a) The Contractor shall be responsible for Information
Technology (IT) security for all systems connected to a DHS network
or operated by the Contractor for DHS, regardless of location. This
clause applies to all or any part of the contract that includes
information technology resources or services for which the
Contractor must have physical or electronic access to sensitive
information contained in DHS unclassified systems that directly
support the agency's mission. The security requirements include, but
are not limited to, how the Department of Homeland Security's
sensitive information is to be handled and protected at the
Contractor's site, (including any information stored, processed, or
transmitted using the Contractor's computer systems), the background
investigation and/or clearances required, and the facility security
required. This requirement includes information technology,
hardware, software, and the management, operation, maintenance,
programming, and system administration of computer systems,
networks, and telecommunications systems. Examples of tasks that
require security provisions include--
(1) Acquisition, transmission or analysis of data owned by DHS
with significant replacement cost should the contractor's copy be
corrupted; and
(2) Access to DHS networks or computers at a level beyond that
granted the general public, (e.g. such as bypassing a firewall).
(b) At the expiration of the contract, the contractor shall
return all sensitive DHS information and IT resources provided to
the contractor during the contract, and a certification that all DHS
information has been purged from any contractor-owned system used to
process DHS information. Organizational elements shall conduct
reviews to ensure that the security requirements in the contract are
implemented and enforced.
(c) The Contractor shall provide, implement, and maintain an IT
Security Plan. This plan shall describe the processes and procedures
that will be followed to ensure appropriate security of IT resources
that are developed, processed, or used under this contract. The plan
shall describe those parts of the contract to which this clause
applies. The Contractor's IT Security Plan shall be compliant with
Federal laws that include, but are not limited to, the Computer
Security Act of 1987 (40 U.S.C. 1441 et seq.), and the Government
Information Security Reform Act of 2000, and the Federal Information
Security Management Act of 2002. The plan shall meet IT security
requirements in accordance with Federal policies and procedures that
include, but are not limited to OMB Circular A-130, Management of
Federal Information Resources, Appendix III, and Security of Federal
Automated Information Resources;
(d) Within----days after contract award, the contractor shall
submit for approval an IT Security Plan. This plan shall be
consistent with and further detail the approach contained in the
offeror's proposal or quote that resulted in the award of this
contract and in compliance with the requirements stated in this
clause. The plan, as approved by the Contracting Officer, shall be
incorporated into the contract as a compliance document.
(e) Within 6 months after contract award, the contractor shall
submit written proof of IT Security accreditation to DHS for
approval by the DHS Contracting Officer. Accreditation will be
according to the criteria of the Homeland Security Information
Technology Security program Publication, DHS MD 4300.Pub., Volume I,
Policy Guide, Part A, Sensitive Systems, which is available from the
Contracting Officer upon request. This accreditation will include a
final security plan, risk assessment, security test and evaluation,
and disaster recovery plan/continuity of operations plan. This
accreditation, when accepted by the Contracting Officer, shall be
incorporated into the contract as a compliance document, and shall
include a final security plan, a risk assessment, security test and
evaluation, and disaster recovery/continuity of operations plan. The
contractor shall comply with the approved accreditation
documentation.
(End of clause)
3052.209-70 Prohibition on contracts with corporate expatriates.
As prescribed at (HSAR) 48 CFR 3009.104-75, insert the following
clause:
Prohibition on Contracts With Corporate Expatriates (Dec. 2003)
(a) Prohibitions.
Section 835 of Public Law 107-296, prohibits the Department of
Homeland Security from entering into any contract with a foreign
incorporated entity after November 25, 2002, which is treated as an
inverted domestic corporation as defined in this clause.
The Secretary shall waive the prohibition with respect to any
specific contract if the Secretary determines that the waiver is
required in the interest of homeland security, or to prevent the
loss of any jobs in the United States or prevent the Government from
incurring any additional costs that otherwise would not occur.
(b) Definitions. As used in this clause:
Expanded Affiliated Group means an affiliated group as defined
in section 1504(a) of the Internal Revenue Code of 1986 (without
regard to section 1504(b) of such Code), except that section 1504 of
such Code shall be applied by substituting `more than 50 percent'
for `at least 80 percent' each place it appears.
Foreign Incorporated Entity means any entity which is, or but
for subsection (b) of section 835 of the Homeland Security Act,
Public Law 107-296, would be, treated as a foreign corporation for
purposes of the Internal Revenue Code of 1986.
Inverted Domestic Corporation. A foreign incorporated entity
shall be treated as an inverted domestic corporation if, pursuant to
a plan (or a series of related transactions)--
(1) The entity completes after November 25, 2002, the direct or
indirect acquisition of substantially all of the properties held
directly or indirectly by a domestic corporation or substantially
all of the properties constituting a trade or business of a domestic
partnership;
(2) After the acquisition at least 80 percent of the stock (by
vote or value) of the entity is held--
(i) In the case of an acquisition with respect to a domestic
corporation, by former shareholders of the domestic corporation by
reason of holding stock in the domestic corporation; or
(ii) In the case of an acquisition with respect to a domestic
partnership, by former partners of the domestic partnership by
reason of holding a capital or profits interest in the domestic
partnership; and
(3) The expanded affiliated group which after the acquisition
includes the entity does not have substantial business activities in
the foreign country in which or under the law of which the entity is
created or organized when compared to the total business activities
of such expanded affiliated group.
Person, domestic, and foreign have the meanings given such terms
by paragraphs (1), (4), and (5) of section 7701(a) of the Internal
Revenue Code of 1986, respectively.
(c) Special rules. The following definitions and special rules
shall apply when determining whether a foreign incorporated entity
should be treated as an inverted domestic corporation.
(1) Certain stock disregarded. For the purpose of treating a
foreign incorporated entity as an inverted domestic corporation
these shall not be taken into account in determining ownership:
(i) stock held by members of the expanded affiliated group which
includes the foreign incorporated entity; or
(ii) stock of such entity which is sold in a public offering
related to the acquisition described in subsection (b)(1) of Section
835 of the Homeland Security Act, Public Law 107-296.
(2) Plan deemed in certain cases. If a foreign incorporated
entity acquires directly or indirectly substantially all of the
properties of a domestic corporation or partnership during the 4-
year period beginning on the date which is after the date of
enactment of this Act and which is 2 years before the ownership
requirements of subsection (b)(2) are met, such actions shall be
treated as pursuant to a plan.
(3) Certain transfers disregarded. The transfer of properties or
liabilities (including by contribution or distribution) shall be
disregarded if such transfers are part of a plan a principal purpose
of which is to avoid the purposes of this section.
(d) Special rule for related partnerships. For purposes of
applying section 835(b) of Public Law 107-296 to the acquisition of
a
[[Page 67891]]
domestic partnership, except as provided in regulations, all
domestic partnerships which are under common control (within the
meaning of section 482 of the Internal Revenue Code of 1986) shall
be treated as a partnership.
(e) Treatment of Certain Rights.
(1) Certain rights shall be treated as stocks to the extent
necessary to reflect the present value of all equitable interests
incident to the transaction, as follows:
(i) Warrants;
(ii) Options;
(iii) Contracts to acquire stock;
(iv) Convertible debt instruments;
(v) Others similar interests.
(2) Rights labeled as stocks shall not be treated as stocks
whenever it is deemed appropriate to do so to reflect the present
value of the transaction or to disregard transactions whose
recognition would defeat the purpose of section 835.
(f) Disclosure. By signing and submitting its offer, an offeror
under this solicitation represents that it not a foreign
incorporated entity that should be treated as an inverted domestic
corporation pursuant to the criteria of Section 835 of the Homeland
Security Act, Public Law 107-296 of November 25, 2002.
(g) If a waiver has been granted, a copy of the approved waiver
shall be attached to the bid or proposal.
(End of provision)
3052.209-71 Reserve Officer Training Corps and military recruiting on
campus.
As prescribed in (HSAR) 48 CFR 3009.470-4, use the following
clause:
Reserve Officer Training Corps and Military Recruiting on Campus
(Dec 2003)
(a) Definitions. Institution of higher education, as used in
this clause, means an institution that meets the requirements of 20
U.S.C. 1001 and includes all subelements of such an institution.
(b) Limitation on contract award. Except as provided in
paragraph (c) of this clause, an institution of higher education is
ineligible for contract award if the Secretary of Defense determines
that the institution has a policy or practice (regardless of when
implemented) that prohibits or in effect prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer
Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other
applicable Federal laws) at that institution;
(2) A student at that institution from enrolling in a unit of
the Senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Homeland Security from gaining entry to campuses, or access to
students (who are 17 years of age or older) on campuses, for
purposes of military recruiting; or
(4) Military recruiters from accessing, for purposes of military
recruiting, the following information pertaining to students (who
are 17 years of age or older) enrolled at that institution:
(i) Name.
(ii) Address.
(iii) Telephone number.
(iv) Date and place of birth.
(v) Educational level.
(vi) Academic major.
(vii) Degrees received.
(viii) Most recent educational institution enrollment.
(c) Exception. The limitation in paragraph (b) of this clause
does not apply to an institution of higher education if the
Secretary of Defense determines that--
(1) The institution has ceased the policy or practice described
in paragraph (b) of this clause; or
(2) The institution has a long-standing policy of pacifism based
on historical religious affiliation.
(d) Agreement. The Contractor represents that it does not now
have, and agrees that during performance of this contract it will
not adopt, any policy or practice described in paragraph (b) of this
clause, unless the Secretary of Defense has granted an exception in
accordance with paragraph (c)(2) of this clause.
(e) Notwithstanding any other clause of this contract, if the
Secretary of Defense determines that the Contractor misrepresented
its policies and practices at the time of contract award or has
violated the agreement in paragraph (d) of this clause--
(1) The Contractor will be ineligible for further payments under
this and any other contracts with the Department of Homeland
Security; and
(2) The Government will terminate this contract for default for
the Contractor's material failure to comply with the terms and
conditions of award.
(End of clause)
3052.209-72 Disclosure of conflicts of interest.
As prescribed in (HSAR) 48 CFR 3009.507, insert the following
provision:
Disclosure of Conflicts of Interest (Dec 2003)
The Department of Homeland Security (DHS) will award contracts
only to those offerors whose objectivity is not impaired by
conflicting interests. Based on this policy--
(a) The offeror shall provide a statement in its proposal which
describes in a concise manner all past, present or planned
organizational, financial, contractual or other interest(s) with an
organization whose interests may be substantially affected by
Departmental activities, and which is related to the work under this
solicitation. The interest(s) described shall include those of the
proposer, its affiliates, proposed consultants, proposed
subcontractors for more than 20% of the work and key personnel of
the offeror and any subcontractor accounting for more than 20% of
the contract. Past interest shall be limited to within one year of
the date of the offeror's technical proposal. Key personnel, for
purposes of this clause, shall include any person owning more than
20% interest in the company, and the company's corporate officers,
its senior managers and any employees responsible for making a
decision or taking an action on this contract where the decision or
action can have an economic or other impact on the interests of a
regulated or affected organization.
(b) The offeror shall describe in detail why it believes, in
light of the interest(s) identified in (a) above, that performance
of the proposed contract can be accomplished in an impartial and
objective manner.
(c) In the absence of any relevant interest identified in (a)
above, the offeror shall submit in its proposal a statement
certifying that to its best knowledge and belief no affiliation
exists relevant to possible conflicts of interest. The offeror must
obtain the same information from potential subcontractors prior to
award of a subcontract.
(d) The Contracting Officer will review the statement submitted
and may require additional relevant information from the offeror.
All such information, and any other relevant information known to
DHS, will be used to determine whether an award to the offeror may
create a conflict of interest. If any such conflict of interest is
found to exist, the Contracting Officer may (1) disqualify the
offeror, or (2) determine that it is otherwise in the best interest
of the United States to contract with the offeror and include
appropriate provisions to mitigate or avoid such conflict in the
contract awarded.
(e) The refusal to provide the disclosure or representation, or
any additional information required, may result in disqualification
of the offeror for award. If nondisclosure or misrepresentation is
discovered after award, the resulting contract may be terminated.
If, after award, the Contractor discovers a conflict of interest
with respect to the contract awarded as a result of this
solicitation, which could not reasonably have been known prior to
award, an immediate and full disclosure shall be made in writing to
the Contracting Officer. The disclosure shall include a full
description of the conflict, a description of the action the
contractor has taken, or proposes to take, to avoid or mitigate such
conflict. The Contracting Officer may, however, terminate the
contract for convenience if he or she deems that termination is in
the best interest of the Government.
(End of clause)
3052.211-70 Index for specifications.
As prescribed in (HSAR) 48 CFR 3011.204-70 insert the following
clause:
Index for Specifications (Dec 2003)
If an index or table of contents is furnished in connection with
specifications, it is understood that such index or table of
contents is for convenience only. Its accuracy and completeness is
not guaranteed, and it is not to be considered as part of the
specifications. In case of discrepancy between the index or table of
contents and the specifications, the specifications shall govern.
(End of clause)
3052.211-90 Bar coding requirement (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3011.204-90(a) and
3013.302-590, insert the following clause:
Bar Coding Requirements (Dec 2003)
[[Page 67892]]
Item markings shall include bar coding in accordance with MIL-
STD-1189 as clarified below:
(a) The stock number shall be bar coded with no prefixes,
dashes, spaces, or suffixes encoded. The contract number, the
delivery order, or call order number, when used, shall be bar coded
with no spaces or dashes encoded.
(b) Prefixes and suffixes to the stock number may be included in
the OCR-A in-the-clear markings, but not in the bar code.
(c) Preferred Bar Code Density (characters per inch as defined
in MIL-STD-1189) is ``standard,'' but densities from ``standard'' to
``low'' are acceptable.
(d) OCR-A characters do not have to be machine-readable.
(e) Bar coding shall be machine-readable.
(f) Unless otherwise specified herein, minimum bar code height
shall be 0.25 inch (6.4 mm) or 15 percent of the bar code length,
whichever is greater.
(g) The preferred position of the OCR-A characters is below the
bar codes, but the OCR-A characters may be above the bar codes.
(h) On outer containers contractors shall either:
(1) Encode the stock numbers and contract number in one line of
bar code with the stock number appearing first; or
(2) Encode the item stock number and contract number on two
labels, with the top label containing the stock number and the lower
label containing the contract number.
(i) On unit and intermediate containers, the item stock number
in bar code with OCR-A below may be on the same label as the other
data (identification markings) required by MIL-STD-129H. However,
the bar code stock number shall appear on the top line with OCR-A
characters on the second line; the OCR-A characters may include the
stock number prefix and suffix, or alternatively, the complete stock
number including any prefix and suffix, shall be repeated as part of
the identification markings.
(j) Exclusions from bar code markings are:
(1) Multi-packs/consolidation containers (containers with two or
more different stock numbers within).
(2) Reusable shipping containers used for multiple/ different
stock number applications.
(3) Items consigned to a prime contractor's plant for
installation in production.
(End of clause)
3052.213-90 Evaluation factor for Coast Guard performance of bar
coding requirement (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3013.106-190,
insert the following provision:
Evaluation Factor for Coast Guard Performance of Bar Coding
Requirement (Dec 2003)
If a small business cannot provide the bar coding requirement,
as indicated elsewhere in the schedule, the contracting officer will
apply the following formula to the quoted amounts:
(a) Unit price quoted by small business $------
(b) Add unit cost to the USCG to provide bar coding $------
(c) Adjusted unit price (add lines a. and b.) $------
The line (c) amount will become the amount the contracting officer
considered when determining the lowest quoted amount.
(End of provision)
3052.215-70 Key personnel or facilities.
As prescribed in (HSAR) 48 CFR 3015.204-3, insert the following
clause:
Key Personnel or Facilities. (Dec 2003)
(a) The personnel or facilities specified below are considered
essential to the work being performed under this contract and may,
with the consent of the contracting parties, be changed from time to
time during the course of the contract by adding or deleting
personnel or facilities, as appropriate.
(b) Before removing or replacing any of the specified
individuals or facilities, the Contractor shall notify the
Contracting Officer, in writing, before the change becomes
effective. The Contractor shall submit sufficient information to
support the proposed action and to enable the Contracting Officer to
evaluate the potential impact of the change on this contract. The
Contractor shall not remove or replace personnel or facilities until
the Contracting Officer approves the change.
The Key Personnel or Facilities under this Contract:
(specify key personnel or facilities)
(End of clause)
3052.216-70 Evaluation of offers subject to an economic price
adjustment clause.
As prescribed in (HSAR) 48 CFR 3016.203-470, insert a provision
substantially the same as the following:
Evaluation of Offers Subject to an Economic Price Adjustment Clause
(Dec 2003)
Offers shall be evaluated without adding an amount for an
economic price adjustment. Offers will be rejected which: (1)
Increase the stipulated ceiling; (2) limit the downward adjustment;
or (3) delete the economic price adjustment clause. If the offer
stipulates a ceiling lower than that included in the solicitation,
the lower ceiling will be incorporated into any resulting contract.
(End of provision)
3052.216-71 Determination of award fee.
As prescribed in (HSAR) 48 CFR 3016.406(e)(1)(i), insert a clause
substantially the same as the following:
Determination of Award Fee (Dec 2003)
(a) The Government shall evaluate contractor performance at the
end of each specified evaluation period(s) to determine the amount
of award. The contractor agrees that the amount of award and the
award fee methodology are unilateral decisions to be made at the
sole discretion of the Government.
(b) Contractor performance shall be evaluated according to a
Performance Evaluation Plan. The contractor shall be periodically
informed of the quality of its performance and areas in which
improvements are expected.
(c) The contractor shall be promptly advised, in writing, of the
determination and reasons why the award fee was or was not earned.
The contractor may submit a performance self-evaluation for each
evaluation period. The amount of award is at the sole discretion of
the Government but any self-evaluation received within ------
(insert number) days after the end of the current evaluation period
will be given such consideration, as may be deemed appropriate by
the Government.
(d) The Government may specify that a fee not earned during a
given evaluation period may be accumulated and be available for
allocation to one or more subsequent periods. In that event, the
distribution of award fee shall be adjusted to reflect such
allocations.
(End of clause)
3052.216-72 Performance evaluation plan.
As prescribed in (HSAR) 48 CFR 3016.406(e)(i)(ii), insert a clause
substantially the same as the following:
Performance Evaluation Plan (Dec 2003)
(a) A Performance Evaluation Plan shall be unilaterally
established by the Government based on the criteria stated in the
contract and used for the determination of award fee. This plan
shall include the criteria used to evaluate each area and the
percentage of award fee (if any) available for each area. A copy of
the plan shall be provided to the contractor ------ (insert number)
calendar days prior to the start of the first evaluation period.
(b) The criteria contained within the Performance Evaluation
Plan may relate to: (1) Technical (including schedule) requirements
if appropriate; (2) Management; and (3) Cost.
(c) The Performance Evaluation Plan may, consistent with the
contract, be revised unilaterally by the Government at any time
during the period of performance. Notification of such changes shall
be provided to the contractor ------ (insert number) calendar days
prior to the start of the evaluation period to which the change will
apply.
(End of clause)
3052.216-73 Distribution of award fee.
As prescribed in (HSAR) 48 CFR 3016.406(e)(1)(iii), insert a clause
substantially the same as the following:
Distribution of Award Fee (Dec 2003)
(a) The total amount of award fee available under this contract
is assigned according to the following evaluation periods and
amounts:
Evaluation Period:
Available Award Fee:
(insert appropriate information)
(b) Payment of the base fee and award fee shall be made,
provided that after payment of 85 percent of the base fee and
potential award fee, the Government may withhold further payment of
the base fee and award fee until a reserve is set aside in an amount
that
[[Page 67893]]
the Government considers necessary to protect its interest. This
reserve shall not exceed 15 percent of the total base fee and
potential award fee or $100,000, whichever is less.
(c) In the event of contract termination, either in whole or in
part, the amount of award fee available shall represent a pro rata
distribution associated with evaluation period activities or events
as determined by the Government.
(d) The Government will promptly make payment of any award fee
upon the submission by the contractor to the contracting officer's
authorized representative, of a public voucher or invoice in the
amount of the total fee earned for the period evaluated. Payment may
be made without using a contract modification.
(End of clause)
3052.216-74 Settlement of letter contract.
As prescribed in (HSAR) 48 CFR 3016.603-4, insert a clause
substantially the same as the following:
Settlement of Letter Contract (Dec 2003)
(a) This contract constitutes the definitive contract
contemplated by letter contract ------ (insert number) issued on --
---- (insert effective date). It supersedes the letter contract and
its modification numbered ------ (insert number(s)). To the extent
there are inconsistencies between the definitive contract and the
letter contract, the former governs.
(b) The cost(s) and fee(s), or price(s), established in this
definitive contract represents full and complete settlement of
letter contract ------ (insert number) and modification numbered --
---- (insert number(s)). Payment of the fee agreed upon or profit
withheld pending definitization of the letter contract, may start
immediately at the rate and times stated within this contract.
(End of clause)
3052.217-90 Delivery and Shifting of Vessel (USCG).
As prescribed in the USCG guidance at (HSAR) 48 CFR 3017.9000(a)
and (b), insert the following clause:
Delivery and Shifting of Vessel (Dec 2003)
The Government shall deliver the vessel to the Contractor at his
place of business. Upon completion of the work, the Government shall
accept delivery of the vessel at the Contractor's place of business.
The Contractor shall provide, at no additional charge, upon 24
hours' advance notice, a tug or tugs and docking pilot, acceptable
to the Contracting Officer, to assist in handling the vessel between
(to and from) the Contractor's plant and the nearest point in a
waterway regularly navigated by vessels of equal or greater draft
and length. While the vessel is in the hands of the Contractor, any
necessary towage, cartage, or other transportation between ship and
shop or elsewhere, which may be incident to the work herein
specified, shall be furnished by the Contractor without additional
charge to the Government.
(End of clause)
3052.217-91 Performance (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Performance (Dec 2003)
(a) Upon the award of the contract, the Contractor shall
promptly start the work specified and shall diligently prosecute the
work to completion. The Contractor shall not start work until the
contract has been awarded except in the case of emergency work
ordered by the Contracting Officer in writing.
(b) The Government shall deliver the vessel described in the
contract at the time and location specified in the contract. Upon
completion of the work, the Government shall accept delivery of the
vessel at the time and location specified in the contract.
(c) The Contractor shall without charge,--
(1) Make available to personnel of the vessel while in dry dock
or on a marine railway, sanitary lavatory and similar facilities at
the plant acceptable to the Contracting Officer;
(2) Supply and maintain suitable brows and gangways from the
pier, dry dock, or marine railway to the vessel;
(3) Treat salvage, scrap or other ship's material of the
Government resulting from performance of the work as items of
Government-furnished property, in accordance with the Government
Property (Fixed Price Contracts) clause;
(4) Perform, or pay the cost of, any repair, reconditioning or
replacement made necessary as the result of the use by the
Contractor of any of the vessel's machinery, equipment or fittings,
including, but not limited to, winches, pumps, rigging, or pipe
lines; and
(5) Furnish suitable offices, office equipment and telephones at
or near the site of the work for the Government's use.
(d) The contract will state whether dock and sea trials are
required to determine whether or not the Contractor has
satisfactorily performed the work.
(1) If dock and sea trials are required, the vessel shall be
under the control of the vessel's commander and crew.
(2) The Contractor shall not conduct dock and sea trials not
specified in the contract without advance approval of the
Contracting Officer. Dock and sea trials not specified in the
contract shall be at the Contractor's expense and risk.
(3) The Contractor shall provide and install all fittings and
appliances necessary for dock and sea trials. The Contractor shall
be responsible for care, installation, and removal of instruments
and apparatus furnished by the Government for use in the trials.
(End of clause)
3052.217-92 Inspection and manner of doing work (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Inspection and Manner of Doing Work (Dec 2003)
(a) The Contractor shall perform work in accordance with the
contract, any drawings and specifications made a part of the job
order, and any change or modification issued under the Changes
clause.
(b)(1) Except as provided in paragraph (b)(2) of this clause,
and unless otherwise specifically provided in the contract, all
operational practices of the Contractor and all workmanship,
material, equipment, and articles used in the performance of work
under this contract shall be in accordance with the best commercial
marine practices and the rules and requirements of all appropriate
regulatory bodies including, but not limited to the American Bureau
of Shipping, the U.S. Coast Guard, and the Institute of Electrical
and Electronic Engineers, in effect at the time of Contractor's
submission of offer, and shall be intended and approved for marine
use.
(2) When Navy specifications are specified in the contract, the
Contractor shall follow Navy standards of material and workmanship.
(c) The Government may inspect and test all material and
workmanship at any time during the Contractor's performance of the
work.
(1) If, prior to delivery, the Government finds any material or
workmanship is defective or not in accordance with the contract, in
addition to its rights under the Guarantee clause, the Government
may reject the defective or nonconforming material or workmanship
and require the Contractor to correct or replace it at the
Contractor's expense.
(2) If the Contractor fails to proceed promptly with the
replacement or correction of the material or workmanship, the
Government may replace or correct the defective or nonconforming
material or workmanship and charge the Contractor the excess costs
incurred.
(3) As specified in the contract, the Contractor shall provide
and maintain an inspection system acceptable to the Government.
(4) The Contractor shall maintain complete records of all
inspection work and shall make them available to the Government
during performance of the contract and for 90 days after the
completion of all work required.
(d) The Contractor shall not permit any welder to work on a
vessel unless the welder is, at the time of the work, qualified to
the standards established by the U.S. Coast Guard, American Bureau
of Shipping, or Department of the Navy for the type of welding being
performed. Qualifications of a welder shall be as specified in the
contract.
(e) The Contractor shall--
(1) Exercise reasonable care to protect the vessel from fire;
(2) Maintain a reasonable system of inspection over activities
taking place in the vicinity of the vessel's magazines, fuel oil
tanks, or storerooms containing flammable materials.
(3) Maintain a reasonable number of hose lines ready for
immediate use on the vessel at all times while the vessel is berthed
alongside the Contractor's pier or in dry dock or on a marine
railway;
(4) Unless otherwise provided in the contract, provide
sufficient security patrols to reasonably maintain a fire watch for
[[Page 67894]]
protection of the vessel when it is in the Contractor's custody;
(5) To the extent necessary, clean, wash, and steam out or
otherwise make safe, all tanks under alteration or repair.
(6) Furnish the Contracting Officer a ``gas-free'' or ``safe-
for-hotwork'' certificate before any hot work is done on a tank;
(7) Treat the contents of any tank as Government property in
accordance with the Government Property (Fixed-Price Contracts)
clause; and
(8) Dispose of the contents of any tank only at the direction,
or with the concurrence, of the Contracting Officer.
(9) Be responsible for the proper closing of all openings to the
vessel's underwater structure upon which work has been performed.
The contractor additionally must advise the COTR of the status of
all valves closures and openings for which the contractor's workers
were responsible.
(f) Except as otherwise provided in the contract, when the
vessel is in the custody of the Contractor or in dry dock or on a
marine railway and the temperature is expected to go as low as 35
Fahrenheit, the Contractor shall take all necessary steps to--
(1) Keep all hose pipe lines, fixtures, traps, tanks, and other
receptacles on the vessel from freezing; and
(2) Protect the stern tube and propeller hubs from frost damage.
(g) The Contractor shall, whenever practicable--
(1) Perform the required work in a manner that will not
interfere with the berthing and messing of Government personnel
attached to the vessel; and
(2) Provide Government personnel attached to the vessel access
to the vessel at all times.
(h) Government personnel attached to the vessel shall not
interfere with the Contractor's work or workers.
(i)(1) The Government does not guarantee the correctness of the
dimensions, sizes, and shapes set forth in any contract, sketches,
drawings, plans, or specifications prepared or furnished by the
Government, unless the contract requires that the Contractor perform
the work prior to any opportunity to inspect.
(2) Except as stated in paragraph (i)(1) of this clause, and
other than those parts furnished by the Government, and the
Contractor shall be responsible for the correctness of the
dimensions, sizes, and shapes of parts furnished under this
agreement.
(j) The Contractor shall at all times keep the site of the work
on the vessel free from accumulation of waste material or rubbish
caused by its employees or the work. At the completion of the work,
unless the contract specifies otherwise, the Contractor shall remove
all rubbish from the site of the work and leave the immediate
vicinity of the work area ``broom clean.''
(End of clause)
3052.217-93 Subcontracts (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Subcontracts (Dec 2003)
(a) Nothing contained in the contract shall be construed as
creating any contractual relationship between any subcontractor and
the Government. The divisions or sections of the specifications are
not intended to control the Contractor in dividing the work among
subcontractors or to limit the work performed by any trade.
(b) The Contractor shall be responsible to the Government for
acts and omissions of its own employees, and of subcontractors and
their employees. The Contractor shall also be responsible for the
coordination of the work of the trades, subcontractors, and material
men.
(c) The Contractor shall, without additional expense to the
Government, employ specialty subcontractors where required by the
specifications.
(d) The Government or its representatives will not undertake to
settle any differences between the Contractor and its
subcontractors, or between subcontractors.
(End of clause)
3052.217-94 Lay days (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Lay Days (Dec 2003)
(a) Lay day time will be paid by the Government at the
Contractor's stipulated bid price for this item of the contract when
the vessel remains on the dry dock or marine railway as a result of
any change that involves work in addition to that required under the
basic contract.
(b) No lay day time shall be paid until all items of the basic
contract for which a price was established by the Contractor and for
which docking of the vessel was required have been satisfactorily
completed and accepted.
(c) Days of hauling out and floating, whatever the hour, shall
not be paid as lay day time, and days when no work is performed by
the Contractor shall not be paid as lay day time.
(d) Payment of lay day time shall constitute complete
compensation for all costs, direct and indirect, to reimburse the
Contractor for use of dry dock or marine railway.
(End of clause)
3052.217-95 Liability and insurance (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Liability and Insurance (Dec 2003)
(a) The Contractor shall exercise its best efforts to prevent
accidents, injury, or damage to all employees, persons, and
property, in and about the work, and to the vessel or part of the
vessel upon which work is done.
(b) Loss or damage to the vessel, materials, or equipment. (1)
Unless otherwise directed or approved in writing by the Contracting
Officer, the Contractor shall not carry insurance against any form
of loss or damage to the vessel(s) or to the materials or equipment
to which the Government has title or which have been furnished by
the Government for installation by the Contractor. The Government
assumes the risks of loss of and damage to that property.
(2) The Government does not assume any risk with respect to loss
or damage compensated for by insurance or otherwise or resulting
from risks with respect to which the Contractor has failed to
maintain insurance, if available, as required or approved by the
Contracting Officer.
(3) The Government does not assume risk of and will not pay for
any costs of the following:
(i) Inspection, repair, replacement, or renewal of any defects
in the vessel(s) or material and equipment due to--
(A) Defective workmanship performed by the Contractor or its
subcontractors;
(B) Defective materials or equipment furnished by the Contractor
or its subcontractors; or
(C) Workmanship, materials, or equipment which do not conform to
the requirements of the contract, whether or not the defect is
latent or whether or not the nonconformance is the result of
negligence.
(ii) Loss, damage, liability, or expense caused by, resulting
from, or incurred as a consequence of any delay or disruption,
willful misconduct or lack of good faith by the Contractor or any of
its representatives that have supervision or direction of--
(A) All or substantially all of the Contractor's business; or
(B) All or substantially all of the Contractor's operation at
any one plant.
(4) As to any risk that is assumed by the Government, the
Government shall be subrogated to any claim, demand or cause of
action against third parties that exists in favor of the Contractor.
If required by the Contracting Officer, the Contractor shall execute
a formal assignment or transfer of the claim, demand, or cause of
action.
(5) No party other than the Contractor shall have any right to
proceed directly against the Government or join the Government as a
codefendant in any action.
(6) Notwithstanding the foregoing, the Contractor shall bear the
first $5,000 of loss or damage from each occurrence or incident, the
risk of which the Government would have assumed under the provision
of this paragraph (b).
(c) Indemnification. The Contractor indemnifies the Government
and the vessel and its owners against all claims, demands, or causes
of action to which the Government, the vessel or its owner(s) might
be subject as a result of damage or injury (including death) to the
property or person of anyone other than the Government or its
employees, or the vessel or its owner, arising in whole or in part
from the negligence or other wrongful act of the Contractor, or its
agents or employees, or any subcontractor, or its agents or
employees.
(1) The Contractor's obligation to indemnify under this
paragraph shall not exceed the sum of $300,000 as a consequence of
any single occurrence with respect to any one vessel.
(2) The indemnity includes, without limitation, suits, actions,
claims, costs, or demands of any kind, resulting from death,
personal injury, or property damage occurring during the period of
performance of work on the vessel or within 90 days after redelivery
of the vessel. For any claim, etc.,
[[Page 67895]]
made after 90 days, the rights of the parties shall be as determined
by other provisions of this contract and by law. The indemnity does
apply to death occurring after 90 days where the injury was received
during the period covered by the indemnity.
(d) Insurance. (1) The Contractor shall, at its own expense,
obtain and maintain the following insurance--
(i) Casualty, accident, and liability insurance, as approved by
the Contracting Officer, insuring the performance of its obligations
under paragraph (c) of this clause.
(ii) Workers Compensation Insurance (or its equivalent) covering
the employees engaged on the work.
(2) The Contractor shall ensure that all subcontractors engaged
on the work obtain and maintain the insurance required in paragraph
(d)(1) of this clause.
(3) Upon request of the Contracting Officer, the Contractor
shall provide evidence of the insurance required by paragraph (d) of
this clause.
(e) The Contractor shall not make any allowance in the contract
price for the inclusion of any premium expense or charge for any
reserve made on account of self-insurance for coverage against any
risk assumed by the Government under this clause.
(f) The Contractor shall give the Contracting Officer written
notice as soon as practicable after the occurrence of a loss or
damage for which the Government has assumed the risk.
(1) The notice shall contain full details of the loss or damage.
(2) If a claim or suit is later filed against the Contractor as
a result of the event, the Contractor shall immediately deliver to
the Government every demand, notice, summons, or other process
received by the Contractor or its employees or representatives.
(3) The Contractor shall cooperate with the Government and, upon
request, shall assist in effecting settlements, securing and giving
evidence, obtaining the attendance of witnesses, and in the conduct
of suits. The Government shall reimburse the Contractor for expenses
incurred in this effort, other than the cost of maintaining the
Contractor's usual organization.
(4) The Contractor shall not, except at its own expense,
voluntarily make any payments, assume any obligation, or incur any
expense other than what would be imperative for the protection of
the vessel(s) at the time of the event.
(g) In the event of loss of or damage to any vessel(s),
material, or equipment which may result in a claim against the
Government under the insurance provisions of this contract, the
Contractor shall promptly notify the Contracting Officer of the loss
or damage. The Contracting Officer may, without prejudice to any
right of the Government, either--
(1) Order the Contractor to proceed with replacement or repair,
in which event the Contractor shall effect the replacement or
repair;
(i) The Contractor shall submit to the Contracting Officer a
request for reimbursement of the cost of the replacement or repair
together with whatever supporting documentation the Contracting
Officer may reasonably require, and shall identify the request as
being submitted under the Insurance clause of this contract.
(ii) If the Government determines that the risk of the loss or
damage is within the scope of the risks assumed by the Government
under this clause, the Government will reimburse the Contractor for
the reasonable allowable cost of the replacement or repair, plus a
reasonable profit (if the work or replacement or repair was
performed by the Contractor) less the deductible amount specified in
paragraph (b) of this clause.
(iii) Payments by the Government to the Contractor under this
clause are outside the scope of and shall not affect the pricing
structure of the contract, and are additional to the compensation
otherwise payable to the Contractor under this contract; or
(2) Decide that the loss or damage shall not be replaced or
repaired and in that event, the Contracting Officer shall--
(i) Modify the contract appropriately, consistent with the
reduced requirements reflected by the unreplaced or unrepaired loss
or damage; or
(ii) Terminate the repair of any part or all of the vessel(s)
under the Termination for Convenience of the Government clause of
this contract.
(End of clause)
3052.217-96 Title (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Title (Dec 2003)
(a) Unless otherwise provided, title to all materials and
equipment to be incorporated in a vessel in the performance of this
contract shall vest in the Government upon delivery at the location
specified for the performance of the work.
(b) Upon completion of the contract, or with the approval of the
Contracting Officer during performance of the contract, all
Contractor-furnished materials and equipment not incorporated in, or
placed on, any vessel, shall become the property of the Contractor,
unless the Government has reimbursed the Contractor for the cost of
the materials and equipments.
(c) The vessel, its equipment, movable stores, cargo, or other
ship's materials shall not be considered Government-furnished
property.
(End of clause)
3052.217-97 Discharge of liens (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Discharge of Liens (Dec 2003)
(a) The Contractor shall immediately discharge or cause to be
discharged, any lien or right in rem of any kind, other than in
favor of the Government, that exists or arises in connection with
work done or materials furnished under this contract.
(b) If any such lien or right in rem is not immediately
discharged, the Government, at the expense of the Contractor, may
discharge, or cause to be discharged, the lien or right.
(End of clause)
3052.217-98 Delays (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Delays (Dec. 2003)
When during the performance of this contract the Contractor is
required to delay work on a vessel temporarily, due to orders or
actions of the Government respecting stoppage of work to permit
shifting the vessel, stoppage of hot work to permit bunkering,
stoppage of work due to embarking or debarking passengers and
loading or discharging cargo, and the Contractor is not given
sufficient advance notice or is otherwise unable to avoid incurring
additional costs on account thereof, an equitable adjustment shall
be made in the price of the contract pursuant to the ``Changes''
clause.
(End of clause)
3052.217-99 Department of Labor safety and health regulations for ship
repairing (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(a) and
(b), insert the following clause:
Department of Labor Safety and Health Regulations for Ship Repair
(Dec. 2003)
Nothing contained in this contract shall relieve the Contractor
of any obligations it may have to comply with--
(a) The Occupational Safety and Health Act of 1970 (29 U.S.C.
651, et seq.);
(b) The Safety and Health Regulations for Ship Repairing (29 CFR
part 1915); or
(c) Any other applicable Federal, State, and local laws, codes,
ordinances, and regulations.
(End of clause)
3052.217-100 Guarantee (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3017.9000(c),
insert the following clause:
Guarantee (Dec. 2003)
(a) In the event any work performed or materials furnished by
the contractor prove defective or deficient within 60 days from the
date of redelivery of the vessel(s), the Contractor, as directed by
the Contracting Officer and at its own expense, shall correct and
repair the deficiency to the satisfaction of the Contracting
Officer.
(b) If the Contractor or any subcontractor has a guarantee for
work performed or materials furnished that exceeds the 60 day
period, the Government shall be entitled to rely upon the longer
guarantee until its expiration.
(c) With respect to any individual work item identified as
incomplete at the time of redelivery of the vessel(s), the guarantee
period shall run from the date the item is completed.
(d) If practicable, the Government shall give the Contractor an
opportunity to correct the deficiency.
(1) If the Contracting Officer determines it is not practicable
or is otherwise not
[[Page 67896]]
advisable to return the vessel(s) to the Contractor, or the
Contractor fails to proceed with the repairs promptly, the
Contracting Officer may direct that the repairs be performed
elsewhere, at the Contractor's expense.
(2) If correction and repairs are performed by other than the
Contractor, the Contracting Officer may discharge the Contractor's
liability by making an equitable deduction in the price of the
contract.
(e) The Contractor's liability shall extend for an additional
90-day guarantee period on those defects or deficiencies that the
Contractor corrected.
(f) At the option of the Contracting officer, defects and
deficiencies may be left uncorrected. In that event, the Contractor
and Contracting Officer shall negotiate an equitable reduction in
the contract price. Failure to agree upon an equitable reduction
shall constitute a dispute under the Disputes clause of this
contract.
(End of clause)
3052.219-70 Small Business subcontracting program reporting.
As prescribed in (HSAR) 48 CFR 3019.708-70(a), insert the following
clause:
The Small Business Subcontracting Program Reporting (Dec. 2003)
(a) The Contractor shall submit the Summary Subcontract Report
(Standard Form 295 (SF-295)) to the Department of Homeland Security,
Office of Small and Disadvantaged Business Utilization, Washington,
DC, 20528.
(b) The Contractor shall include this clause in all subcontracts
that include the clause at (FAR) 48 CFR 52.219-9.
(End of Clause)
3052.219-71 DHS mentor-prot[eacute]g[eacute] program.
As prescribed in (HSAR) 48 CFR 3019.708-70(b), insert the following
clause:
DHS Mentor-Prot[eacute]g[eacute] Program (Dec. 2003)
(a) Large businesses are encouraged to participate in the DHS
Mentor-Prot[eacute]g[eacute] program for the purpose of providing
developmental assistance to eligible small business
prot[eacute]g[eacute] entities to enhance their capabilities and
increase their participation in DHS contracts.
(b) The program consists of:
(1) Mentor firms, which are large prime contractors capable of
providing developmental assistance;
(2) Prot[eacute]g[eacute] firms, which are small businesses,
veteran-owned small businesses, service-disabled veteran-owned small
businesses, HUBZone small businesses, small disadvantaged
businesses, and women-owned small business concerns; and
(3) Mentor-Prot[eacute]g[eacute] agreements, approved by the DHS
OSDBU.
(c) Mentor participation in the program means providing business
developmental assistance to aid Prot[eacute]g[eacute]s in developing
the requisite expertise to effectively compete for and successfully
perform DHS contracts and subcontracts.
(d) Large business prime contractors, serving as mentors in the
DHS mentor-prot[eacute]g[eacute] program, are eligible for a post-
award incentive for subcontracting plan credit by recognizing costs
incurred by a mentor firm in providing assistance to a
prot[eacute]g[eacute] firm and using this credit for purposes of
determining whether the mentor firm attains a subcontracting plan
participation goal applicable to the mentor firm under a DHS
contract. The amount of credit given to a mentor firm for these
prot[eacute]g[eacute] developmental assistance costs shall be
calculated on a dollar for dollar basis and reported via the SF-295;
for example, the mentor/large business prime contractor reports a
$10,000 subcontract to the prot[eacute]g[eacute]/small business
subcontractor and $5,000 of developmental assistance to the
prot[eacute]g[eacute]/small business subcontractor as $15,000
($10,000 traditional subcontract plus $5,000 in developmental
assistance for a total of $15,000).
(e) Contractors interested in participating in the program are
encouraged to contact the DHS OSDBU for more information.
(End of clause)
3052.219-72 Evaluation of prime contractor participation in the DHS
mentor-prot[eacute]g[eacute] program.
As prescribed in (HSAR) 48 CFR 3019.708-70(c), insert the following
clause:
Evaluation of Prime Contractor Participation in the DHS Mentor-
Prot[eacute]g[eacute] Program (Dec 2003)
This solicitation contains a source selection factor or
subfactor regarding participation in the DHS Mentor-
Prot[eacute]g[eacute] Program. In order to receive credit under the
source selection factor or subfactor, the offeror shall provide a
signed letter of mentor-prot[eacute]g[eacute] agreement approval
from the DHS OSDBU.
(End of clause)
3052.222-70 Strikes or picketing affecting timely completion of the
contract work.
As prescribed in (HSAR) 48 CFR 3022.101-71(a), insert the following
clause:
Strikes or Picketing Affecting Timely Completion of the Contract
Work (Dec 2003)
Notwithstanding any other provision hereof, the Contractor is
responsible for delays arising out of labor disputes, including but
not limited to strikes, if such strikes are reasonably avoidable. A
delay caused by a strike or by picketing which constitutes an unfair
labor practice is not excusable unless the Contractor takes all
reasonable and appropriate action to end such a strike or picketing,
such as the filing of a charge with the National Labor Relations
Board, the use of other available Government procedures, and the use
of private boards or organizations for the settlement of disputes.
(End of clause)
3052.222-71 Strikes or picketing affecting access to a DHS facility.
As prescribed in (HSAR) 48 CFR 3022.101-71(b), insert the following
clause:
Strikes or Picketing Affecting Access to a DHS Facility (Dec 2003)
If the Contracting Officer notifies the Contractor in writing
that a strike or picketing: (a) is directed at the Contractor or
subcontractor or any employee of either; and (b) impedes or
threatens to impede access by any person to a DHS facility where the
site of the work is located, the Contractor shall take all
appropriate action to end such strike or picketing, including, if
necessary, the filing of a charge of unfair labor practice with the
National Labor Relations Board or the use of other available
judicial or administrative remedies.
(End of clause)
3052.222-90 Local hire (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3022.9001, insert
the following clause:
Local Hire (Dec 2003)
(a) When performing a contract in a State with an unemployment
rate in excess of the national average determined by the Secretary
of Labor, the Contractor shall employ individuals who are local
residents and who, in the case of any craft or trade, possess or
would be able to acquire promptly, the necessary skills.
(b) Local resident defined. As used in this section, ``local
resident'' means a resident of, or an individual who commutes daily
to a State described in subsection (a).
(c) The Secretary of Homeland Security may waive the
requirements of this subsection in the interest of national security
or economic efficiency.
(End of clause)
3052.223-70 Removal or disposal of hazardous substances--applicable
licenses and permits.
As prescribed in (HSAR) 48 CFR 3023.303, insert the following
clause:
Removal or Disposal of Hazardous Substances--Applicable Licenses and
Permits (Dec 2003)
The Contractor certifies that it has ---- does not have ---- all
licenses and permits required by Federal, State, and local laws to
perform hazardous substance(s) removal or disposal services. If the
Contractor does not currently possess these documents, it shall
obtain all requisite licenses and permits within ---- days after
date of award. The Contractor shall provide evidence of said
documents to the Contracting Officer or designated Government
representative prior to commencement of work under the contract.
(End of clause)
3052.223-90 Accident and fire reporting (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3023.9000(a),
insert the following clause:
[[Page 67897]]
Accident and Fire Reporting (Dec 2003)
(a) The Contractor shall report to the Contracting Officer any
accident or fire occurring at the site of the work that causes:
(1) A fatality or the loss of at least one lost workday on the
part of any employee of the Contractor or subcontractor at any tier;
(2) Damage of $1,000 or more to Federal real or personal
property; either real or personal;
(3) Damage of $1,000 or more to Contractor or subcontractor
owned or leased motor vehicles or mobile equipment; or
(4) Damage for which a contract time extension may be requested.
(b) Accident and fire reports required by paragraph (a) above
shall be accomplished by the following means:
(1) Accidents or fires resulting in a death, hospitalization of
five or more persons, or destruction of Federal real or personal
property, the total value of which is estimated at $100,000 or more,
shall be reported immediately by telephone to the Contracting
Officer or his/her authorized representative and shall be confirmed
by telegram, facsimile or e-mail transmission within 24 hours to the
Contracting Officer. Such telegram or facsimile transmission shall
state all known facts as to extent of injury and damage and as to
cause of the accident or fire.
(2) Other accident and fire reports required by paragraph (a)
above may be reported by the Contractor using a state, private
insurance carrier, or Contractor accident report form which provides
for the statement of:
(i) The extent of injury; and
(ii) The damage and cause of the accident or fire.
Such report shall be mailed or otherwise delivered to the
Contracting Officer within 48 hours of the occurrence of the
accident or fire.
(c) The Contractor shall assure compliance by subcontractors at
all tiers with the requirements of this clause.
(End of clause)
3052.228-70 Insurance.
As prescribed in (HSAR) 48 CFR 3028.310-70 and 3028.311-1, insert a
clause substantially the same as follows. The contracting officer may
specify additional kinds (e.g., aircraft public and passenger
liability, vessel liability) or increased amounts of insurance.
Insurance (Dec 2003)
In accordance with the clause entitled ``Insurance--Work on a
Government Installation'' [or Insurance--Liability to Third Persons]
in Section I, insurance of the following kinds and minimum amounts
shall be provided and maintained during the period of performance of
this contract:
(a) Worker's compensation and employer's liability. The
contractor shall, as a minimum, meet the requirements specified at
(FAR) 48 CFR 28.307-2(a).
(b) General liability. The contractor shall, as a minimum, meet
the requirements specified at (FAR) 48 CFR 28.307-2(b).
(c) Automobile liability. The contractor shall, as a minimum,
meet the requirements specified at (FAR) 48 CFR 28.307-2(c).
(End of clause)
3052.228-90 Notification of Miller Act payment bond protection (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3028.106-490,
insert the following clause:
Notification of Miller Act Payment Bond Protection (Dec 2003)
This notice clause shall be inserted by first tier
subcontractors in all their subcontracts and shall contain
information pertaining to the surety that provided the payment bond
under the prime contract.
(a) The prime contract is subject to the Miller Act (40 U.S.C.
270), under which the prime contractor has obtained a payment bond.
This payment bond may provide certain unpaid employees, suppliers,
and subcontractors a right to sue the bonding surety under the
Miller Act for amounts owned for work performed and materials
delivery under the prime contract.
(b) Persons believing that they have legal remedies under the
Miller Act should consult their legal advisor regarding the proper
steps to take to obtain these remedies. This notice clause does not
provide any party any rights against the Federal Government, or
create any relationship, contractual or otherwise, between the
Federal Government and any private party.
(c) The surety which has provided the payment bond under the
prime contract is:
-----------------------------------------------------------------------
(Name)
-----------------------------------------------------------------------
(Street Address)
-----------------------------------------------------------------------
(City, State, Zip Code)
-----------------------------------------------------------------------
(Contact & Tel. No.)
-----------------------------------------------------------------------
(End of clause)
3052.228-91 Loss of or damage to leased aircraft (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and
(b), insert the following clause:
Loss of or Damage to Leased Aircraft (Dec 2003)
(a) The Government assumes all risk of loss of, or damage
(except normal wear and tear) to, the leased aircraft during the
term of this lease while the aircraft is in the possession of the
Government.
(b) In the event of damage to the aircraft, the Government, at
its option, shall make the necessary repairs with its own facilities
or by contract, or pay the Contractor the reasonable cost of repair
of the aircraft.
(c) In the event the aircraft is lost or damaged beyond repair,
the Government shall pay the Contractor a sum equal to the fair
market value of the aircraft at the time of such loss or damage,
which value may be specifically agreed to in clause 3052.228-92,
``Fair Market Value of Aircraft,'' less the salvage value of the
aircraft. However, the Government may retain the damaged aircraft or
dispose of it as it wishes. In that event, the Contractor will be
paid the fair market value of the aircraft as stated in the clause.
(d) The Contractor agrees that the contract price does not
include any cost attributable to hull insurance or to any reserve
fund it has established to protect its interest in the aircraft. If,
in the event of loss or damage to the leased aircraft, the
Contractor receives compensation for such loss or damage in any form
from any source, the amount of such compensation shall be:
(1) Credited to the Government in determining the amount of the
Government's liability; or
(2) For an increment of value of the aircraft beyond the value
for which the Government is responsible.
(e) In the event of loss of or damage to the aircraft, the
Government shall be subrogated to all rights of recovery by the
Contractor against third parties for such loss or damage and the
Contractor shall promptly assign such rights in writing to the
Government.
(End of clause)
3052.228-92 Fair market value of aircraft (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and
(c), insert the following clause:
Fair Market Value of Aircraft (Dec 2003)
For purposes of the clause entitled ``Loss of or Damage to
Leased Aircraft,'' the fair market value of the aircraft to be used
in the performance of this contract shall be the lesser of the two
values set out in paragraphs (a) and (b) below:
(a) $------; or
(b) If the contractor has insured the same aircraft against loss
or destruction in connection with other operations, the amount of
such insurance coverage on the date of the loss or damage for which
the Government may be responsible under this contract.
(End of clause)
3052.228-93 Risk and indemnities (USCG).
As prescribed in USCG guidance at (HSAR) 48 CFR 3028.306-90(a) and
(d), insert the following clause:
Risk and Indemnities (Dec 2003)
The Contractor hereby agrees to indemnify and hold harmless the
Government, its officers and employees from and against all claims,
demands, damages, liabilities, losses, suits and judgments
(including all costs and expenses incident thereto) which may be
suffered by, accrue against, be charged to or recoverable from the
Government, its officers and employees by reason of injury to or
death of any person other than officers, agents, or employees of the
Government or by reason of damage to property of others of
whatsoever kind (other than the property of the Government, its
officers, agents or employees) arising out of the operation of the
aircraft. In the event the Contractor holds or obtains insurance in
support of this covenant, evidence of insurance shall be delivered
to the Contracting Officer.
[[Page 67898]]
(End of clause)
3052.231-70 Precontract costs.
As prescribed in (HSAR) 48 CFR 3031.205-32, insert the following
clause:
Precontract Costs (Dec 2003)
The Contractor shall be entitled to reimbursement for pre-
contract costs incurred on or after ------ in an amount not to
exceed $------ that, if incurred after this contract had been
entered into, would have been reimbursable under this contract.
(End of clause)
3052.236-70 Special precautions for work at operating airports.
As prescribed in (HSAR) 48 CFR 3036.570, insert the following
clause:
Special Precautions for Work at Operating Airports (Dec 2003)
(a) When work is to be performed at an operating airport, the
Contractor must arrange its work schedule so as not to interfere
with flight operations. Such operations will take precedence over
construction convenience. Any operations of the Contractor which
would otherwise interfere with or endanger the operations of
aircraft shall be performed only at times and in the manner directed
by the Contracting Officer. The Government will make every effort to
reduce the disruption of the Contractor's operation.
(b) Unless otherwise specified by local regulations, all areas
in which construction operations are underway shall be marked by
yellow flags during daylight hours and by red lights at other times.
The red lights along the edge of the construction areas within the
existing aprons shall be the electric type of not less than 100
watts intensity placed and supported as required. All other
construction markings on roads and adjacent parking lots may be
either electric or battery type lights. These lights and flags shall
be placed so as to outline the construction areas and the distance
between any two flags or lights shall not be greater than 25 feet.
The Contractor shall provide adequate watch to maintain the lights
in working condition at all times other than daylight hours. The
hour of beginning and the hour of ending of daylight will be
determined by the Contracting Officer.
(c) All equipment and material in the construction areas or when
moved outside the construction area shall be marked with airport
safety flags during the day and when directed by the Contracting
Officer, with red obstruction lights at nights. All equipment
operating on the apron, taxiway, runway, and intermediate areas
after darkness hours shall have clearance lights in conformance with
instructions from the Contracting Officer. No construction equipment
shall operate within 50 feet of aircraft undergoing fuel operations.
Open flames are not allowed on the ramp except at times authorized
by the Contracting Officer.
(d) Trucks and other motorized equipment entering the airport or
construction area shall do so only over routes determined by the
Contracting Officer. Use of runways, aprons, taxiways, or parking
areas as truck or equipment routes will not be permitted unless
specifically authorized for such use. Flag personnel shall be
furnished by the Contractor at points on apron and taxiway for safe
guidance of its equipment over these areas to assure right of way to
aircraft. Areas and routes used during the contract must be returned
to their original condition by the Contractor. Airport management
shall establish the maximum speed allowed at the airport. Vehicles
shall be operated so as to be under safe control at all times,
weather and traffic conditions considered. Vehicles must be equipped
with head and taillights during the hours of darkness.
(End of clause)
3052.237-70 Qualifications of contractor employees.
As prescribed in (HSAR) 48 CFR 3037.110-70(a), insert the following
clause:
Qualifications of Contractor Employees (Dec 2003)
(a) ``Sensitive Information'' is any information or proprietary
data which if subject to unauthorized access, modification, loss, or
misuse could adversely affect the national interest, the conduct of
Federal programs, or the privacy to which individuals are entitled
under 5 U.S.C. 552a (The Privacy Act), but that has not been
specifically authorized under criteria established by an Executive
Order or an Act of Congress to be kept classified in the interest of
national defense or foreign policy.
(b) Work under this contract may involve access to sensitive
information. Therefore, the Contractor shall not disclose, orally or
in writing, any sensitive information to any person unless
authorized in writing by the Contracting Officer. For those
contractor employees authorized access to sensitive information, the
contractor shall ensure that these persons receive training
concerning the protection and disclosure of sensitive information
both during and after contract performance.
(c) Contractor employees working on this contract must complete
such forms, as may be necessary for security or other reasons,
including the conduct of background investigations to determine
suitability. Completed forms shall be submitted as directed by the
Contracting Officer. Upon the Contracting Officer's request, the
Contractor's employees shall be fingerprinted, or subject to other
investigations as required.
(d) The Contracting Officer may require dismissal from work
those employees deemed incompetent, careless, insubordinate, or
otherwise objectionable, or whose continued employment is deemed
contrary to the public interest or inconsistent with the best
interest of national security.
(e) Each employee of the Contractor shall be a citizen of the
United States of America, or an alien who has been lawfully admitted
for permanent residence as evidenced by an Alien Registration
Receipt Card Form I-151. An alien authorized to work shall present
evidence from the Bureau of Citizenship and Immigration Services
that employment will not affect his or her immigration status.
(f) The Contractor shall include the substance of this clause in
all subcontracts at any tier where the subcontractor may have access
to Government facilities, sensitive information, or resources.
(End of clause)
3052.237-71 Information technology systems access for contractors.
As prescribed in (HSAR) 48 CFR 3037.110-70(a) and (b), insert a
clause substantially as follows. The contracting officer may specify
additional IT security requirements unique to an OE.
Information Technology Systems Access for Contractors (Dec 2003)
(a) No contractor personnel shall start work under this contract
that involves actual or potential access to sensitive information
until (1) approved for access, (2) they have received a security
briefing, or current refresher, about Information Technology (IT)
security, from the appropriate Organizational Element (OE)
Information Systems Security Officer (ISSO); and (3) have signed a
non-disclosure agreement form. This user security agreement is
provided as an Attachment to this solicitation. By signing the user
security agreement, the individual will be acknowledging their
responsibility to properly use and safeguard all DHS OE information
technology resources and information related thereto. The
Contracting Officer Technical Representative (COTR) for this
contract shall arrange the aforementioned security briefing. The
ISSO is responsible for retaining the non-disclosure documents
signed and submitted by the contractor employees as well evidence of
security training.
(b) The contractor shall have access only to those areas of DHS
OE information technology resources explicitly stated in this
contract or approved by the COTR in writing as necessary for
performance of the work under this contract. Information technology
assets includes computer equipment, networking equipment,
telecommunications equipment, cabling, network drives, computer
drives, network software, computer software, software programs,
intranet sites, and Internet sites. Any attempts by contractor
personnel to gain access to any information technology resources not
expressly authorized by the statement of work, other terms and
conditions in this contract, or as approved in writing by the COTR,
is strictly prohibited. In the event of violation of this provision,
DHS will take appropriate actions with regard to the contract.
(c) Contractor access to DHS networks from a remote location is
a temporary privilege for mutual convenience while the contractor
performs business for the DHS OE. It is not a right, a guarantee of
access, a condition of the contract, nor is it Government Furnished
Equipment (GFE).
(d) Contractor access will be terminated for unauthorized use.
The contractor agrees to hold and save DHS harmless from any
unauthorized use and agrees not to request additional time or money
under the contract for any delays resulting from unauthorized use or
access.
(End of clause)
[[Page 67899]]
3052.237-72 Contractor personnel screening for unclassified
information technology access.
As prescribed in 3037.110-70(a) and (b), insert a clause
substantially as follows:
Contractor Personnel Screening for Unclassified Information
Technology Access (Dec 2003)
(a) Contractor personnel requiring privileged access or limited
risk assessment level. Guidance for selecting the appropriate level
of screening is based on the risk of adverse impact to DHS missions,
as indicated in FIPS PUB 199, Standards for Security Categorization
of Federal Information and Information Systems (Initial Public
Draft).
(b) The Contractor shall afford DHS, including the Office of
Inspector General, access to the Contractor's and subcontractors'
facilities, installations, operations, documentation, databases and
personnel used in performance of the contract. Access shall be
provided to the extent required to carry out a program of IT
inspection, investigation and audit to safeguard against threats and
hazards to the integrity, availability and confidentiality of DHS
data or to the function of computer systems operated on behalf of
DHS, and to preserve evidence of computer crime.
(c) The Contractor shall incorporate the substance of this
clause in all subcontracts that meet the conditions in paragraph (a)
of this clause.
(End of clause)
3052.242-70 Dissemination of information--educational institutions.
As prescribed in (HSAR) 48 CFR 3042.203-70(a), insert the following
clause:
Dissemination of Information--Educational Institutions (Dec 2003)
(a) 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 (a thesis or collection of
theses should not be used to distribute results because
dissemination will not be sufficiently widespread). All costs of
publication pursuant to this clause shall be borne by the Contractor
and shall not be charged to the Government under this or any other
Federal contract.
(b) Any copy of material published under this clause shall
contain acknowledgment of DHS's sponsorship of the research effort
and a disclaimer stating that the published material represents the
position of the author(s) and not necessarily that of DHS. Articles
for publication or papers to be presented to professional societies
do not require the authorization of the Contracting Officer prior to
release. However, a printed or electronic copy of each article shall
be transmitted to the Contracting Officer at least two weeks prior
to release or publication.
(c) Press releases concerning the results or conclusions from
the research under this contract shall not be made or otherwise
distributed to the public without prior written approval of the
Contracting Officer.
(d) Publication under the terms of this clause does not release
the Contractor from the obligation of preparing and submitting to
the Contracting Officer a final report containing the findings and
results of research, as set forth in the schedule of the contract.
(End of clause)
3052.242-71 Dissemination of contract information.
As prescribed in (HSAR) 48 CFR 3042.203-70(b), insert the following
clause:
Dissemination of Contract Information (Dec. 2003)
The Contractor shall not publish, permit to be published, or
distribute for public consumption, any information, oral or written,
concerning the results or conclusions made pursuant to the
performance of this contract, without the prior written consent of
the Contracting Officer. An electronic or printed copy of any
material proposed to be published or distributed shall be submitted
to the Contracting Officer.
(End of clause)
3052.242-72 Contracting officer's technical representative.
As prescribed in (HSAR) 48 CFR 3042.7000, insert the following
clause:
Contracting Officer's Technical Representative (Dec. 2003)
(a) The Contracting Officer may designate Government personnel
to act as the Contracting Officer's Technical Representative (COTR)
to perform functions under the contract such as review or inspection
and acceptance of supplies, services, including construction, and
other functions of a technical nature. The Contracting Officer will
provide a written notice of such designation to the Contractor
within five working days after contract award or for construction,
not less than five working days prior to giving the contractor the
notice to proceed. The designation letter will set forth the
authorities and limitations of the COTR under the contract.
(b) The Contracting Officer cannot authorize the COTR or any
other representative to sign documents, such as contracts, contract
modifications, etc., that require the signature of the Contracting
Officer.
(End of clause)
3052.245-70 Government property reports.
As prescribed in (HSAR) 48 CFR 3045.505-70, insert the following
clause:
Government Property Reports (Dec. 2003)
(a) The Contractor shall prepare an annual report of Government
property in its possession and the possession of its subcontractors.
(b) The report shall be submitted to the Contracting Officer not
later than September 15 of each calendar year on Form DHS F 4220.43,
Contractor Report of Government Property.
(End of clause)
3052.247-70 F.o.b. origin information.
As prescribed in (HSAR) 48 CFR 3047.305-70(a), insert the following
provision:
F.O.B. Origin Information (Dec. 2003)
The offeror shall furnish information with the offer:
(a) Location of the offeror's actual shipping point(s) (street
address, city, state, and zip code) from which supplies will be
delivered to the Government;
(b) Whether the offered shipping point has a private railroad
siding, and the name of the rail carrier serving it;
(c) When the offered shipping point does not have a private
siding, the names and addresses of the nearest public rail siding
and of the carrier serving it; and
(d) The quantity of supplies to be shipped from each shipping
point.
(End of provision)
Alternate I (Dec. 2003)
If delivery is ``f.o.b. origin, contractor's facility,'' and the
designated facility is not covered by the line-haul transportation
rate, add the following paragraph to the basic provision:
(e) The charges required to deliver the shipment to the point
where the line-haul rate is applicable.
Alternate II (Dec. 2003)
When delivery is ``f.o.b. origin, freight allowed,'' add the
following paragraph to the basic provision:
(e) The basis on which transportation charges will be allowed,
including the origin and destination from and to which
transportation charges will be allowed.
3052.247-71 F.o.b. origin only.
As prescribed in (HSAR) 48 CFR 3047.305-70(b), insert the following
provision:
F.O.B. Origin Only (Dec. 2003)
Offers are invited on the basis of f.o.b. origin only. Offers
submitted on any other basis will be rejected as nonresponsive.
(End of provision)
3052.247-72 F.o.b. destination only.
As prescribed in (HSAR) 48 CFR 3047.305-70(c), insert the following
provision:
F.O.B. Destination Only (Dec. 2003)
Offers are invited on the basis of f.o.b. destination only.
Offers submitted on any other basis will be rejected as
nonresponsive.
PART 3053--FORMS
Subpart 3053.1--General
Sec.
3053.101 Requirements for use of forms.
3053.103 Exceptions.
Subpart 3053.2--Prescription of Forms
3053.204-70 Administrative matters.
[[Page 67900]]
3053.222-70 Application of labor laws to Government acquisitions.
3053.227-70 Conveyance of invention rights acquired by the
Government.
3053.245-70 Contractor report of government property.
Subpart 3053.3--Illustrations of Forms
3053.303 Agency forms.
Subpart 3053.1--General
3053.101 Requirements for use of forms.
Unless excepted, forms prescribed in (FAR) 48 CFR part 53 and
(HSAR) 48 CFR part 3053 are required for use by all OEs.
3053.103 Exceptions.
Requests for exceptions to forms contained in (FAR) 48 CFR part 53
and to DHS forms in (HSAR) 48 CFR part 3053 shall be submitted, as
prescribed in (FAR) 48 CFR 53.103, to the CPO.
Subpart 3053.2--Prescription of Forms
3053.204-70 Administrative matters.
The following forms are prescribed for use in the closeout of
applicable contracts, as specified in (HSAR) 48 CFR 3004.804-570:
(a) DHS Form 0700-01, Cumulative Claim and Reconciliation
Statement. (See (HSAR) 48 CFR 3004.804-570(a)(1).)
(b) DHS Form 0700-02, Contractor's Assignment of Refunds, Rebates,
Credits and Other Amounts. (See (HSAR) 48 CFR 3004.570(a)(2).)
(c) DHS Form 0700-03, Contractor Release. (See (HSAR) 48 CFR
3004.804-570(a)(3).)
3053.222-70 Application of labor laws to Government acquisitions.
The following form is prescribed for use in connection with the
application of labor laws, as specified in (HSAR) 48 CFR 3022.406-9:
DHS Form 0070-04, Employee's Claim for Wage Restitution.
3053.227-70 Conveyance of invention rights acquired by the Government.
The following form is prescribed for including a means for
contractors to report inventions made in the course of contract
performance, as specified in (HSAR) 48 CFR 3027.305-4: DD Form 882,
Report of Inventions and Subcontracts.
3053.245-70 Report of Government property.
The following form is prescribed for use by contractors to report
Government property, as specified in (HSAR) 48 CFR 3045.505-14: DHS
Form 0070-05, Contractor's Report of Government Property.
Subpart 3053.3--Illustrations of Forms
3053.303 Agency forms.
This section illustrates agency-specified forms. To access these
forms go to: http://www.dhs.gov/dhspublic/ display?theme=37.
------------------------------------------------------------------------
Form name Form No.
------------------------------------------------------------------------
Cumulative Claim and Reconciliation DHS Form 0070-01
Statement.
Contractor's Assignment of Refunds, DHS Form 0070-02
Rebates, Credits and Other Amounts.
Contractor Release................... DHS Form 0070-03
Employee's Claim for Wage Restitution DHS Form 0070-04
Contractor's Report of Government DHS Form 0070-05
Property.
Report of Inventions and Subcontract. DD 882
------------------------------------------------------------------------
Appendix--HSAR Matrix
Note: This appendix will not appear in the Code of Federal
Regulations.
BILLING CODE 4410-10-P
[[Page 67901]]
[GRAPHIC] [TIFF OMITTED] TR04DE03.000
[[Page 67902]]
[GRAPHIC] [TIFF OMITTED] TR04DE03.001
[[Page 67903]]
[GRAPHIC] [TIFF OMITTED] TR04DE03.002
[FR Doc. 03-29823 Filed 11-28-03; 8:45 am]
BILLING CODE 4410-10-C