Proposed Rule2023-00832
Education Acquisition Regulation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 16, 2023
Issuing agencies
Education Department
Abstract
The Secretary of Education proposes to modify the Department of Education Acquisition Regulation (EDAR) to revise aspects of those regulations that are out-of-date or redundant with other U.S. Department of Education (Department) policies and procedures and to accurately implement the current Federal Acquisition Regulation (FAR) and Department policies.
Full Text
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[Federal Register Volume 88, Number 32 (Thursday, February 16, 2023)]
[Proposed Rules]
[Pages 10218-10236]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00832]
[[Page 10217]]
Vol. 88
Thursday,
No. 32
February 16, 2023
Part II
Department of Education
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48 CFR Parts 3401, 3402, 3403, et al.
Education Acquisition Regulation; Proposed Rule
Federal Register / Vol. 88, No. 32 / Thursday, February 16, 2023 /
Proposed Rules
[[Page 10218]]
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DEPARTMENT OF EDUCATION
48 CFR Parts 3401, 3402, 3403, 3404, 3406, 3407, 3408, 3409, 3412,
3416, 3417, 3419, 3424, 3428, 3430, 3431, 3432, 3433, 3437, 3439,
3442, 3443, 3447 and 3452
[Docket ID ED-2023-OFO-0002]
RIN 1890-AA20
Education Acquisition Regulation
AGENCY: Office of Finance and Operations, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary of Education proposes to modify the Department
of Education Acquisition Regulation (EDAR) to revise aspects of those
regulations that are out-of-date or redundant with other U.S.
Department of Education (Department) policies and procedures and to
accurately implement the current Federal Acquisition Regulation (FAR)
and Department policies.
DATES: We must receive your comments on or before April 3, 2023.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at <a href="http://regulations.gov">regulations.gov</a>. However, if you require an accommodation or
cannot otherwise submit your comments via <a href="http://regulations.gov">regulations.gov</a>, please
contact the program contact person listed under FOR FURTHER INFORMATION
CONTACT. The Department will not accept comments submitted by fax or by
email or those submitted after the comment period. To ensure that we do
not receive duplicate copies, please submit your comments only once. In
addition, please include the Docket ID at the top of your comments.
The Department strongly encourages you to submit any comments or
attachments in Microsoft Word format. If you must submit a comment in
Adobe Portable Document Format (PDF), we strongly encourage you to
convert the PDF to print-to-PDF format or to use some other commonly
used searchable text format. Please do not submit the PDF in a scanned
format. Using a print-to-PDF format allows the Department to
electronically search your submissions.
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a> to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``FAQ.''
Privacy Note: The Department's policy is to make comments received
from members of the public available for public viewing on the Federal
eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. Therefore, you should be
careful to include in your comments only information that you wish to
make publicly available.
FOR FURTHER INFORMATION CONTACT: April Bolton-Smith, U.S. Department of
Education, 400 Maryland Avenue SW, Room 5B243, Washington, DC 20202-
4331. Telephone: (202) 453-6317. Email: <a href="/cdn-cgi/l/email-protection#5a3b2a283336743835362e3534772937332e321a3f3e743d352c"><span class="__cf_email__" data-cfemail="335243415a5f1d515c5f475c5d1e405e5a475b7356571d545c45">[email protected]</span></a>. You
may also email your questions to <a href="/cdn-cgi/l/email-protection#dc8f9d9195838cb3b0b5bfa59cb9b8f2bbb3aa"><span class="__cf_email__" data-cfemail="8cdfcdc1c5d3dce3e0e5eff5cce9e8a2ebe3fa">[email protected]</span></a>, but as described
above, comments must be submitted via the Federal eRulemaking Portal at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: We invite you to submit comments regarding
these proposed regulations. To ensure that your comments have maximum
effect in developing the final regulations, we urge you to identify
clearly the specific section or sections of the proposed regulations
that each of your comments addresses and to arrange your comments in
the same order as the proposed regulations. Please provide relevant
information and data whenever possible, even if there is no specific
solicitation of data and other supporting materials in the request for
comment. Please do not submit comments that are outside the scope of
the specific proposals in this notice of proposed rulemaking (NPRM), as
we are not required to respond to such comments.
We invite you to assist us in complying with the specific
requirements of Executive Orders 12866 and 13563 and their overall
requirement of reducing regulatory burden that might result from these
proposed regulations. Please let us know of any further ways we could
reduce potential costs or increase potential benefits while preserving
the effective and efficient administration of the Department's programs
and activities. Please also feel free to offer for our consideration
any alternative approaches to the subjects addressed by the proposed
regulations.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments in person. To schedule a time to
inspect comments, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for the proposed regulations. To schedule an
appointment for this type of accommodation or auxiliary aid, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Background
The uniform regulation for the procurement of supplies and services
by Federal Departments and Agencies, the FAR, was promulgated on
September 19, 1983 (48 FR 42102). The FAR is codified in title 48,
chapter 1, of the Code of Federal Regulations. The Department
promulgated the EDAR to implement the FAR on May 26, 1988 (53 FR
19118). The last revision of the EDAR was published in the Federal
Register on March 8, 2011 (76 FR 12796). The Department published an
NPRM on July 16, 2014 (79 FR 41511), but due to changing internal
priorities those proposed rules were never finalized.
Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory changes that are technical or otherwise minor in
effect.
These proposed regulations would amend the EDAR as follows:
Subchapter A--General
Part 3401--ED Acquisition Regulation System
FAR: FAR part 1 (Federal Acquisition Regulations System) sets forth
the purpose, authority, and structure of the FAR, authorizes agency FAR
supplements and deviations from the FAR, and discusses career
development, contracting authority, and responsibilities.
Current Regulations: The current EDAR contains subparts and
sections that paraphrase or are redundant with the FAR, as well as
information that is more appropriate for internal policy and
procedures. The numbering of the current regulations is inconsistent
with the numbering of the FAR.
Proposed Regulations: The Department proposes to revise sections
3401.000, 3401.104, and 3401.602-3 and to remove sections 3401.105,
3401.105-2, and 3401.105-3, 3401.301, 3401.304, and 3401.401, subpart
3401.5 (consisting of sections 3401.501 and 3401.501-2), and sections
3401.670,
[[Page 10219]]
3401.670-1, and 3401.670-2. Additionally, in subpart 3401.6, ``Career
Development, Contracting Authority, and Responsibilities,'' the
proposed regulations would redesignate section 3401.670-3 as section
3401.604-70 to be consistent with the FAR 1.604.
Reasons: The proposed changes remove sections that are unnecessary
and redundant with the FAR. Additionally, on March 16, 2011, section
1.604 was added to the FAR. This proposed change would update the EDAR
to be consistent with the FAR numbering scheme.
Part 3402--Definitions of Words and Terms
FAR: FAR part 2 (Definitions of Words and Terms) defines words and
terms that are frequently used in the FAR.
Current Regulations: The current EDAR defines the terms Chief
Acquisition Officer (CAO), Chief of the Contracting Office (COCO),
Contracting Officer's Representative (COR), Department of ED, Head of
the Contracting Activity (HCA), Performance-Based Organization (PBO),
and Senior Procurement Executive (SPE). The current EDAR does not
define ``requiring activity.'' The current EDAR contains a separate
section 3402.101-70 for abbreviations and acronyms.
Proposed Regulations: The Department proposes to remove the
definitions of ``Chief Acquisition Officer'' and ``Contracting
Officer's Representative'' and to add a definition of ``requiring
activity.'' Additionally, the Department proposes to clarify that the
Head of Contracting for Federal Student Aid (FSA) Acquisition is the
Executive Director, Acquisition Directorate. Finally, the Department
proposes to remove section 3402.101-70 (Abbreviations and acronyms) as
a stand-alone section and to relocate the acronyms to be part of the
definitions.
Reasons: We remove the terms ``Chief Acquisition Officer'' and
``Contracting Officer's Representative'' to eliminate duplication with
the FAR, where these terms are defined. We include a definition of
``requiring activity'' because this term is used in a proposed new
clause that addresses requirements under the Family Educational Rights
and Privacy Act (FERPA).
Part 3403--Improper Business Practices and Personal Conflicts of
Interest
FAR: FAR part 3 (Improper Business Practices and Personal Conflicts
of Interest) regulates standards of conduct, gratuities to Government
personnel, reports of suspected antitrust violations, contingent fees,
and contracts with Government employees or organizations owned or
controlled by them.
Current Regulations: The current EDAR requires Department personnel
to report violations of the gratuities clause, antitrust violations,
and misrepresentation or violation of the covenant against contingent
fees.
Proposed Regulations: The Department is proposing to add section
3403.104-7 to identify the Senior Procurement Executive (SPE) as the
agency head for the purposes of FAR 3.104-7(d)(2)(ii)(B) and to add
section 3403.204, revise section 3403.602, and add subparts 3403.7 and
3403.9 to identify the SPE as the agency head's designee for the
purposes of FAR 3.204, 3.602, 3.704, 3.705, 3.905, and 3.906. The
Department is proposing to remove section 3403.101-3 and to renumber
current section 3403.409 to proposed section 3403.405.
Reasons: The proposed revisions remove a section of the EDAR that
is more appropriate for internal policy guidance and improve
administrative efficiency by identifying the official delegated the
authority to provide exceptions and sign determinations identified in
FAR 3.1, 3.2, 3.6, 3.7, and 3.9.
Part 3404--Administrative and Information Matters
FAR: FAR part 4 (Administrative and Information Matters) sets forth
requirements for contract execution, documentation, retention, and
reporting.
Current Regulations: The current EDAR does not address this FAR
part.
Proposed Regulations: The Department proposes to add part 3404,
``Administrative Matters,'' to subchapter A, consisting of sections
3404.000 and 3404.001 and subparts 3404.4, 3404.7, and 3404.8. In
section 3404.001, we propose to define ``Federal record'' and ``records
inventory.'' The Department proposes to include sections 3404.470 and
3404.470-1 in proposed subpart 3404.4 to prescribe the use of the
clause at 3452.204-71, ``Contractor security vetting requirements,'' in
all solicitations and contracts when it is anticipated that contractor
employees will have access to proprietary or sensitive Department
information. The Department proposes to add subpart 3404.7, consisting
of sections 3404.710 and 3404.770, to prescribe the use of the clause
at 3452.204-70, ``Records management,'' in all solicitations and
contracts where contractors will receive, create, work with, or
otherwise handle Federal records. The Department proposes to add
subpart 3404.8, consisting of sections 3404.804 and 3404.804-5, to
require the contracting officer to ensure that the contractor has
provided written affirmation that all Federal records under the
contract have been transferred to the Department prior to closeout of
the contract file.
Reasons: These additions are necessary to provide contractors with
the personnel security screening requirements for contractor employees
who will require access to proprietary or sensitive Department
information, including, but not limited to, ``Controlled Unclassified
Information'' as defined in 32 CFR part 2002, Department information
technology (IT) systems, and Department facilities or space, or who
will perform duties in a school or location where children are present.
Additionally, these additions are necessary to provide contractors
guidance on the handling of Federal records, often containing
personally identifiable information (PII), both during and after
performance of contracts.
Subchapter B--Competition and Acquisition Planning
Part 3406--Competition Requirements
FAR: FAR part 6 (Competition Requirements) regulates how agencies
compete various contract actions.
Current Regulations: The current EDAR does not identify the agency
head for purposes of FAR 6.302-2 (Unusual and compelling urgency).
Proposed Regulations: The proposed changes would add section
3406.302-2 to identify the SPE as the agency head's designee for
purposes of FAR 6.302-2(d)(1)(ii) and (d)(2)(ii).
Reasons: To improve administrative efficiency, the proposed changes
would identify the agency head for purposes of FAR 6.302-2(d)(1)(ii)
and (d)(2)(ii).
Part 3407--Acquisition Planning
FAR: FAR part 7 (Acquisition Planning) sets forth requirements for
pre-solicitation activities that must be addressed by the Government,
identifies analysis of requirements for contractor versus Government
performance, and identifies how to determine if work is inherently
governmental.
Current Regulations: The current EDAR does not address this part of
the FAR.
Proposed Regulations: The Department proposes to add part 3407,
``Acquisition Planning,'' to subchapter B to identify the SPE as the
agency head's designee for the purposes of FAR 7.103.
Reasons: To improve administrative efficiency, the proposed changes
to the regulations would clearly identify the
[[Page 10220]]
appropriate official for making determinations under FAR 7.1.
PART 3408--Required Sources of Supplies and Services
FAR: FAR part 8 (Required Sources of Supplies and Services)
mandates certain sources and details how agencies must use those
sources.
Current Regulations: The current EDAR requires a printing clause in
section 3408.870 to clarify when the printing clause at 3452.208-71 is
required.
Proposed Regulations: The Department proposes to remove section
3408.870.
Reasons: Since the EDAR was last updated in 2011, there has been a
significant reduction in printing by contractors. As such, the clause
is not being used by the contracting activities and is no longer
necessary.
Part 3409--Contractor Qualifications
FAR: FAR part 9 (Contractor Qualifications) prescribes policies,
standards, and procedures for determining whether prospective
contractors are responsible.
Current Regulations: The current section 3409.507 of EDAR includes
a section that includes a contractor certification related to conflict
of interest (COI) with regard to contracts and orders above the
simplified acquisition threshold.
Proposed Regulations: The Department proposes to revise section
3409.507-2 and remove section 3409.570.
Reason: The proposed changes would revise section 3409.507-2 to
remove text in the instruction to contracting officers that is
inaccurate and remove section 3409.570 because it is unnecessary, as
COI requirements are sufficiently covered in FAR part 9.
Part 3412--Acquisition of Commercial Products and Commercial Services
FAR: FAR part 12 (Acquisition of Commercial Products and Commercial
Services) prescribes policies and procedures unique to the acquisition
of commercial products, including commercial components, and commercial
services.
Current Regulations: The current EDAR permits the HCA to approve
waivers in accordance with FAR 12.302(c).
Proposed Regulations: The Department proposes to add section
3412.301 to prescribe the use of the clause at 3452.224-73,
``Protection of student privacy in compliance with FERPA,'' in all
solicitations or contracts, including those for the acquisition of
commercial products and commercial services, when a requiring activity
has provided notification that the contractor will collect or receive
access to PII from student education records in connection with
carrying out an audit, evaluation, study, compliance review, or other
Federal law enforcement activity on behalf of the Department.
Reason: The proposed change to the regulations would clarify that
the FERPA clause at 3452.224-73 applies to the acquisition of
commercial products and commercial services.
Part 3416--Types of Contracts
FAR: FAR part 16 (Types of Contracts) describes the various
contract types and consideration in determining the type of contract to
use for a particular acquisition.
Current Regulations: The current EDAR has outdated cost principles
citations in section 3416.307 that refer to the Office of Management
and Budget (OMB) cost principles that were rescinded with the issuance
of 2 CFR part 200 (Uniform Guidance). Additionally, the current EDAR
incorrectly states that an award term that is earned is affected by
unilateral modification.
Proposed Regulations: The Department proposes to update the
outdated citations in section 3416.307 and to revise section
3416.470(f)(2) to require bilateral modification to extend a contract
for an earned award term period. Additionally, the Department proposes
to add subpart 3416.5, to include section 3416.505, to identify the
Deputy Director of Contracts and Acquisition Management (CAM) as the
agency head for purposes of FAR 16.505(b)(8).
Reasons: These revisions would update outdated citations and
correct errors in the current EDAR, as well as identify the
Department's task-order and delivery-order ombudsman, which is required
in FAR 16.505(b)(8).
Part 3417--Special Contracting Methods
FAR: FAR part 17 (Special Contracting Methods) includes
requirements for options and interagency acquisitions under the Economy
Act.
Current Regulations: The Department proposes to add section
3417.104 to identify the SPE as the agency head for the purposes of FAR
17.104(b).
Reasons: The changes are necessary to clearly identify the
appropriate official for making determinations under FAR 17.104(b).
Subchapter D--Socioeconomic Programs
Part 3419--Small Business Programs
FAR: FAR part 19 (Small Business Programs) describes requirements
for and the availability of contracting preference programs for small
businesses.
Current Regulations: The current regulations identify regulatory
flexibilities afforded to Federal Student Aid (FSA).
Proposed Regulations: The Department proposes to correct the
location of the Office of Small and Disadvantaged Business Utilization
in section 3419.201-70 and to align the numbering of section 3419.502-4
to the FAR, resulting in a change from section 3419.502-4 to section
3419.502-70. Additionally, the Department proposes to add section
3418.502-8 and subpart 3419.8, to include section 3419.810, to identify
the SPE as the agency head for the purposes of FAR 19.502-8 and to
identify the HCA as the agency head for the purposes of FAR in
19.812(d).
Reasons: The proposed changes would update and correct inaccuracies
in current sections of part 3419 and would identify the appropriate
official for making determinations under FAR 19.5 and 19.8.
Part 3424--Protection of Privacy and Freedom of Information
FAR: FAR part 24 (Protection of Privacy and Freedom of Information)
prescribes policies and procedures that apply to requirements of the
Privacy Act of 1974, as amended (Privacy Act), OMB Circular A-130, and
the Freedom of Information Act.
Current Regulations: The current EDAR does not address the
statutory requirement that the Department comply with FERPA
requirements to safeguard the privacy of student education records.
Proposed Regulations: The Department proposes to add subpart 3424.7
to prescribe the use of the clause at 3452.224-73, ``Protection of
student privacy in compliance with FERPA,'' in all solicitations and
contracts, including those for the acquisition of commercial products
and commercial services, where a contractor will collect or receive
access to PII from student education records in connection with
carrying out an audit, evaluation, study, compliance review, or other
Federal law enforcement activity on the behalf of the Department.
Reasons: This addition is necessary to ensure that the Department
complies with FERPA requirements.
[[Page 10221]]
Subchapter E--General Contracting Requirements
Part 3428--Bonds and Insurance
FAR: FAR part 28 (Bonds and Insurance) regulates the appropriate
use and requirements for bonds and insurance under Federal contracts.
Current Regulations: The current EDAR, section 3428.311-2 (Agency
solicitation provisions and contract clauses), requires a clause
specifying when insurance is mandatory.
Proposed Regulation: The Department proposes to clarify in section
3428.311-2 that the clause is required in all solicitations and
contracts when a cost-reimbursement contract is contemplated.
Reasons: The proposed change is necessary to remove ambiguity about
when the clause is required.
Part 3430--Cost Accounting Standards Administration
FAR: FAR part 30 (Cost Accounting Standards Administration)
includes sections on the administration of contractor financial systems
and responsibility for disclosure.
Current Regulations: The current EDAR does not address this part of
the FAR.
Proposed Regulations: The Department proposes to add part 3430,
``Cost Accounting Standards Administration,'' to include section
3430.201-5, to identify the SPE as the head of the agency for purposes
of FAR 30.201-5(a) and (b).
Reasons: The proposed change to the regulation would clearly
identify the appropriate official for making determinations under FAR
30.201-5.
Part 3431--Contract Cost Principles and Procedures
FAR: FAR part 31 (Contract Cost Principles and Procedures) includes
sections regulating costs under contracts with commercial, educational,
and nonprofit organizations.
Current Regulations: The current EDAR does not address this part of
the FAR.
Proposed Regulations: The Department proposes to add part 3431,
``Contract Cost Principles and Procedures.'' Within part 3431, the
Department proposes to add subpart 3431.1, consisting of section
3431.101, to identify the SPE as the agency head's designee for the
purposes of FAR 31.101 and to add subpart 3431.2, to include section
3431.205-71, to prescribe the use of the clause at 3452.231-71
(Invitational travel costs) to prohibit the use of contract funds to
pay for noncontractor travel unless authorized by the contracting
officer in advance.
Reasons: The proposed changes to the regulations would clearly
identify the appropriate official for making determinations under FAR
31.101 and 31.205-6 and would ensure adequate control over contract
funds used to pay for noncontractor travel.
Part 3432--Contract Financing
FAR: FAR part 32 (Contract Financing) regulates the types of
financing the Government may make available to contractors, including
advance payments.
Current Regulations: The current EDAR designates the HCA as the
official authorized to approve types of financing in subpart 3432.4
(Advance Payments for Non-Commercial Items) and section 3432.705-2
(Clauses for limitation for cost or funds), which prescribes the use of
the clause at 3452.232-70 (Limitation of cost or funds) and the
provisions in the clause at 3452.232-71 (Incremental funding) for cost-
reimbursement contracts.
Proposed Regulations: The Department proposes to add sections
3432.000 (Scope of part), 3432.006, and 3432.006-3 to identify
Department personnel responsibilities and procedures that must be
followed when there is any suspected instance of fraud involved in
payment requests.
The Department also proposes to redesignate sections 3432.705 and
3432.705-2 to sections 3432.706 and 3432.706-2, respectively, and to
designate paragraphs (a) and (b) in the current section 3432.705-2 to
paragraphs (c) and (d) in the redesignated section 3432.706-2.
Additionally, the Department proposes to add paragraph (e) to
section 3432.705-2 to permit a contracting officer to add the clause at
3432.232-72 that allows for the incremental funding of fixed price
contracts when certain conditions are met.
Reasons: The proposed changes identify the appropriate official and
procedure to report suspected instances of fraud involved in payments
requests. The proposed changes also align the EDAR to the proper FAR
sections. Additionally, the proposed changes address a mission-critical
need to incrementally fund fixed price, severable service contracts
when certain conditions are met.
Part 3433--Protests, Disputes, and Appeals
FAR: FAR part 33 (Protests, Disputes, and Appeals) regulates the
Government's actions when a protest is filed with the agency or the
U.S. Government Accountability Office and when disputes occur under
contracts.
Current Regulations: The current EDAR designates the HCA as the
official authorized to approve a determination to continue with
performance after receipt of a protest.
Proposed Regulations: The Department proposes to revise section
3433.103 to clarify that the contracting officer should receive the
agency-level protest unless the protestor requests an independent
review. Requests for independent reviews would be decided by the HCA,
or SPE if the HCA is not at least one level above the contracting
officer. These proposed changes would also clarify that the independent
review is an alternative to the contracting officer's decision and not
an appeal, and direct contracting officers to include the clause at
3452.233-70 (Agency level protests) in all solicitations.
Reasons: These proposed changes would clarify the Department's
process for agency level protests and, consistent with FAR
33.103(d)(4), they designate the Department officials who are
responsible for conducting the review and clarify that the independent
review is an alternative to the contracting officer's decision and not
an appeal.
Subchapter F--Special Categories of Contracting
Part 3437--Service Contracting
FAR: FAR part 37 (Service Contracting) regulates various types of
service contracts and performance-based acquisition.
Current Regulations: The EDAR currently contains section 3437.270
(Services of consultants clauses), which prescribes the use of the
clause at 3452.237-70 (Services of consultants) in all cost-
reimbursement contracts and solicitations. This clause requires the
contractor to obtain the contracting officer's written approval to use
certain consultants under a cost-type contract.
Proposed Regulations: The Department proposes to add section
3437.204 and revise section 3437.270 within subpart 3437.2 and to add
section 3437.601 to subpart 3437.6. Proposed section 3437.204 would
identify the HCA as the agency head for the purposes of FAR 37.204. The
Department proposes to revise section 3437.270 to clarify that the
clause at 3452.237-70 (Services of consultants) is to be used in all
solicitations and resultant cost-reimbursements contracts for
consultant services that do not provide services to FSA. The Department
proposes to add section 3437.601 to establish the Department's policy
that all new service contracts be
[[Page 10222]]
performance-based, unless approved by the HCA.
Reasons: These changes would clearly identify the official
responsible for the guidelines for determining the availability of
personnel for the purposes of FAR 37.204, add necessary language to
clarify that the Services of Consultants clause should only be included
when the solicitation or resultant contract involves consultant
services, and clarify current practice to establish the minimum
requirements to be contained in any new service contract.
Part 3439--Acquisition of Information Technology
FAR: FAR part 39 (Acquisition of Information Technology) regulates
the acquisition of information technology.
Current Regulations: The current EDAR contains multiple information
technology initiatives and standards requirements for internet Protocol
version 6 and security requirements.
Proposed Regulations: The Department proposes to revise the heading
of section 3439.702 to align with updated clause language and to
require the use of the clause at 3452.239-71 (Department information
security and privacy requirements) in all solicitations and contracts.
The Department proposes to remove section 3439.703.
Reasons: Current section 3439.702 applies only when contractor
employees will have access to Department-controlled facilities or
space, or when the work involves the design, operation, repair, or
maintenance of information systems and access to sensitive but
classified information. To ensure that Department information security
and privacy requirements are broadly applied to all contracts involving
information technology, the proposed change would require that
contracting officers use the clause at 3452.239-71 in all solicitations
and contracts. Current section 3439.703 prescribes the use of the
clause at 3452.239-73, which requires Federal Desktop Core
Configuration (FDCC) compatibility in all solicitations and contracts
where software will be developed or operated on any system using the
FDCC. The FDCC has been replaced with the United States Government
Configuration Baseline (USGCB). The requirement to comply with the
USGCB is included in the EDAR clause at 3452.239-71; therefore, section
3452.239-73 is obsolete and no longer required.
Subchapter G--Contract Management
Part 3442--Contract Administration and Audit Services
FAR: FAR part 42 (Contract Administration and Audit Services)
requires use of a contractor performance information system and
contracting monitoring; it also governs other contract administration
functions.
Current Regulations: The current EDAR contains sections on contract
monitoring and the accessibility of meetings, conferences, and seminars
to persons with disabilities.
Proposed Regulations: The Department proposes to revise section
3442.7101 in subpart 3442.71 to clarify the use of the clause at
3452.242-73 (Accessibility of meetings, conferences, and seminars to
persons with disabilities) is mandatory in all solicitations and
contracts where conferences are contemplated.
Reasons: The current regulation is ambiguous as to the application
of the accessibility clause, and this change would clarify when it must
be used.
Part 3443--Contract Modifications
FAR: FAR part 43 (Contract Modifications) prescribes policies and
procedures for preparing and processing contract modifications for all
types of contracts.
Current Regulations: The current EDAR contains a section requiring
contracting officers to insert a clause substantially the same as the
clause at 3452.243-70 (Key personnel) in all solicitations and
resultant cost-reimbursement contracts in which it is essential for the
contracting officer to be notified of changes to key personnel.
Proposed Regulations: The proposed changes to section 3443.107
would remove the limitation of this clause to cost-reimbursement
contracts.
Reasons: This change would allow contracting officers to be
notified of key personnel changes in all contracts, where appropriate.
Part 3447--Transportation
FAR: FAR part 47 (Transportation) includes sections regulating
transportation-related services, transportation in supply contracts,
and transportation by U.S. flag carriers and vessels.
Current Regulations: The current EDAR specifies in section 3447.701
that the contracting officer must use clause 3452.247-70 (Foreign
travel) in all solicitations and resultant cost reimbursement
contracts.
Proposed Regulations: The Department proposes to revise section
3447.701 to clarify that the contracting officer must insert the clause
at 3452.247-70 (Foreign travel) in all solicitations and resultant
cost-reimbursement contracts where foreign travel is contemplated.
Reasons: This change would clarify when the contracting officer
must use the clause at 3452.247-70.
Subchapter H--Clauses and Forms
Part 3452--Solicitations Provisions and Contract Clauses
FAR: FAR part 52 (Solicitation Provisions and Contract Clauses) is
the part of the FAR containing all FAR provisions and clauses required
or recommended for inclusion in solicitations and contracts, as
prescribed in the preceding parts of the FAR.
Current Regulations: The current EDAR includes in part 3452,
``Solicitation Provisions and Contract Clauses,'' text for 30
provisions and clauses, all of which are prescribed in the preceding
parts of EDAR.
Proposed Regulations: The Department proposes to add section
3452.204-70 to implement records management guidance provided by the
National Archives and Records Administration (NARA) consistent with
applicable law and regulations; add section 3452.204-71 as a stand-
alone clause that identifies contractor security vetting requirements
(formally included with IT security requirements); revise section
3452.216-71(e) to require bilateral modifications rather than
unilateral modifications in cases of earned award term periods; revise
sections 3452.224-71 and 3452.224-72 to reflect updated requirements
with regard to research activities involving human subjects; add
section 3452.224-73 to ensure the protection of student privacy in
compliance with FERPA; add section 3452.231-71 to identify invitational
travel as an unallowable cost without written consent; add section
3452.232-72 to permit incremental funding of fixed price contracts; add
section 3452.233-70 to clarify the process for agency-level protests;
revise section 3452.239-70 to conform with OMB policy on completing the
transition to internet Protocol version 6 (IPv6); revise section
3452.239-71 to separate out contractor security vetting requirements
and to update Department IT security requirements; and revise section
3452.243-70 to allow its application in all solicitations and
contracts.
Additionally, the Department proposes to remove sections 3452.208-
71, 3452.239-72, and 3452.239-73.
Reasons: The proposed additions and revisions to this part of the
EDAR are
[[Page 10223]]
consistent with the changes to the prescription language in the
preceding parts and would update the provisions and clauses to more
accurately reflect current regulations and policy. Specifically,
section 3452.204-70 is proposed to comply with NARA regulations to
ensure that the Department has proper oversight of Department records
that are in the possession of Department contractors, including
inventorying all records that are created, managed, and stored by
Department contractors, as well as ensuring proper disposition of the
records when the contract ends.
Section 3452.204-71 is proposed as a stand-alone clause because it
was previously combined with IT security requirements. We are proposing
to separate the two clauses because not all contracts that involve IT
security also involve personnel security (and vice versa). As such, it
is more appropriate to convey the requirements in separate clauses.
We are proposing to revise section 3452.216-71(e) because the
current EDAR incorrectly states that an award term that is earned is
affected by unilateral contract modification. This proposed revision to
the clause would correct this error and would require bilateral
modification.
The proposed revisions to sections 3452.224-71 and 3452.224-72 are
necessary to update the clause language to conform with updates to
Human Subject Research regulations found in 34 CFR part 97.
Section 3452.224-73 is proposed to ensure that contractors are
advised of their obligations to protect student privacy in compliance
with FERPA.
Section 3452.231-71 is proposed to ensure that travel by non-
contractor employees is permissible and in accordance with Department
policy and the Federal Travel Regulations.
Section 3452.232-72 is proposed because the Department often does
not have sufficient funding during a continuing resolution to fully
fund mission critical and high dollar fixed price contracts. This
proposed clause is required to allow the Department to incrementally
fund fixed-price, severable service contracts in a way that clearly
delineates the rights and responsibilities of the Government and the
contractor in compliance with the Anti-Deficiency Act.
Section 3452.233-70 is proposed because the current EDAR does not
clearly identify the process for agency-level protests or clarify that
the independent review, as specified in the FAR, is an alternative to
the contracting officer's decision and not an appeal.
We are proposing revisions to section 3452.239-70 because the
current clause is not in compliance with current OMB policy on the
requirement to transition to IPv6.
We are proposing revisions to section 3452.239-71 because the
clause previously contained personnel security requirements, which are
now proposed in a separate, stand-alone clause. Additionally, the
proposed clause would update outdated IT cybersecurity requirements and
would implement a requirement that contractors not only comply with the
Department's current cybersecurity and privacy requirements at the time
of contract award, but also future requirements. This is necessary
because of the ever evolving and changing landscape with regard to
cybersecurity requirements, and to ensure that contractors that do
business with the Department are keeping current with these
requirements to protect the Department's data and information.
We are proposing revisions to section 3452.243-70 to give
contracting officers the flexibility of including the key personnel
clause in all solicitations and contracts that require it, rather than
limiting it to only non-commercial contracts.
Additionally, section 3452.208-71 is no longer required because
there has been a significant reduction in printing by contractors since
the EDAR was last updated. This clause is not currently being used by
the Contracting Activities.
Also, section 3452.239-72 is no longer required because the
Department's information security and privacy requirements are now
included in all contracts and solicitations (per the revised section
3439.702). Previously, section 3452.239-71 provided notice to offerors
of the Department's security requirements and section 3452.239-72
prescribed the requirements. Because the requirements are now in
section 3452.239-71, current section 3452.239-72 is unnecessary.
Finally, section 3452.239-73 is no longer required because the FDCC
has been replaced with the USGCB. The requirement to comply with the
USGCB is included in the EDAR clause at 3452.239-71; therefore, section
3452.239-73 is obsolete and no longer required.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
We have reviewed these proposed regulations under Executive Order
12866 and have determined that this proposed regulatory action is not a
significant regulatory action subject to review by OMB under section
6(3)(A) of Executive Order 12866.
We have also reviewed these proposed regulations under Executive
Order 13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
[[Page 10224]]
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We issue these proposed regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on an analysis of anticipated costs
and benefits, we believe that these proposed regulations are consistent
with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly
interfere with State, local, and Tribal governments in the exercise of
their governmental functions.
Potential Costs and Benefits
We have reviewed the changes proposed in this NPRM in accordance
with Executive Order 12866 and do not believe that these changes would
generate a considerable increase in burden. Most changes proposed in
this NPRM either remove parts of the EDAR that are redundant or
duplicate the FAR; identify the proper ``agency head'' designee for
certain sections of the FAR; or make minor revisions to improve clarity
and application. Most of these proposed changes would not generate any
costs.
The NPRM includes a proposed change to revise the Human Subjects
Research clause and prescription to comply with updated policy and
regulations on human subject research. This change would not result in
significant costs; its impact would be limited to contracts that
include, or are likely to include, research activities involving human
subjects covered under 34 CFR part 97.
We also propose to revise the internet Protocol version 6 (IPv6)
clause to conform with an OMB policy on completing the transition to
IPv6. The proposed change to the clause is not material and would not
generate any significant costs. Application will be limited to
solicitations and resulting contracts for hardware and software.
We propose to add a contract closeout requirement to require that
the contracting officer receive written affirmation that all Federal
records have been transferred to the Department. Because this would not
change the underlying requirement regarding final disposition of all
Government-Owned/Contractor-Held Federal records, its impact would be
limited to the requirement that the contracting officer receive written
affirmation of such disposition.
We also propose to add seven new contract clauses. Four of these
(requiring compliance with information security and privacy
requirements; requiring compliance with contractor security vetting
requirements, including undergoing a personnel security screening;
establishing requirements and safeguards for contractors that collect
or receive PII from student education records to ensure compliance with
FERPA; and permitting incremental funding of fixed price contracts) are
already used in contracts. As a result, these four changes would not
result in any added burden or costs.
The NPRM includes three new clauses. They are:
<bullet> A clause to require the contractor to comply with records
management laws, regulations, and policies, including safeguarding
Federal records and transferring Federal records back to the Department
at the end of the contract;
<bullet> A clause to require prior approval for noncontractor
invitational travel; and
<bullet> A clause to provide notice to the contractor on where to
submit an agency-level protest and advisement to the public that a
protester has the right to request an independent review.
The records management clause requires the contractor to comply
with all applicable records management laws and regulations, as well as
NARA records policies, including the Federal Records Act (44 U.S.C.
chapters 21, 29, 31, and 33), NARA regulations at 36 CFR chapter XII,
subchapter B, including 36 CFR part 1236, and those policies associated
with the safeguarding of Federal records covered by the Privacy Act.
While some of these requirements are already being applied to contracts
in practice, there are some new requirements, in particular that
Department staff will need to maintain Records Inventories. The nature
and the substance of increased burden would not be significant.
The noncontractor invitational travel clause would prohibit the use
of contract funds to pay for noncontractor invitational travel unless
authorized by the contracting officer in advance. This would ensure
adequate control over contract funds used to pay for noncontractor
invitational travel. The impact of this proposed change would be
minimal. The agency-level protest clause would provide notice to the
contractor on where to submit an agency-level protest and would advise
the public that a protester has the right to request an independent
review. These proposed changes would not result in any significant
costs or burden. The right to request an independent review is already
codified in the FAR.
Many of the proposed changes would result in benefits to the
public. Because the EDAR has not been updated in more than ten years,
it contains outdated and unused clauses.
Additionally, it has citations to outdated laws and regulations and
contains sections that are duplicative of the FAR or that are more
appropriate for internal procedures and policies. The proposed changes
would streamline the EDAR, make it easier to read, and would reflect
current and updated requirements.
Regulatory Flexibility Act Certification
The Secretary certifies that this proposed regulatory action would
not have a significant economic impact on a substantial number of small
entities. The proposed regulations would not directly regulate any
small entities. For this reason, these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act
The regulatory action does not contain any information collection
requirements.
Intergovernmental Review
These regulations are not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. At this site, you can view this
document, as well as all other documents of the Department published in
the Federal Register, in text or PDF. To use PDF, you must have Adobe
Acrobat Reader, which is available free at the site.
[[Page 10225]]
You may also access documents of the Department published in the
Federal Register by using the article search feature at
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects
48 CFR Parts 3401, 3402, 3404, 3406, 3407, 3408, 3409, 3412, 3416,
3417, 3424, 3428, 3430, 3431, 3437, 3439, 3444, 3447, and 3452
Government procurement.
48 CFR Part 3403
Antitrust, Conflict of interest, Government procurement.
48 CFR Part 3419
Government procurement, Small businesses.
48 CFR Parts 3432, 3442, and 3443
Accounting, Government procurement.
48 CFR Part 3433
Administrative practice and procedure, Government procurement.
Miguel A. Cardona,
Secretary of Education.
Accordingly, the Secretary proposes to amend title 48 of the Code
of Federal Regulations, chapter 34 as follows:
PART 3401--ED ACQUISITION REGULATION SYSTEM
0
1. The authority citation for part 3401 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
2. Revise section 3401.000 to read as follows:
3401.000 Scope of part.
This part establishes a system of Department of Education
(Department) acquisition regulations, referred to as the Department of
Education Acquisition Regulation (EDAR), for the codification and
publication of policies and procedures of the Department that implement
and supplement the Federal Acquisition Regulation (FAR).
0
3. Revise section 3401.104 to read as follows:
3401.104 Applicability.
(a) The FAR and the EDAR apply to all Department contracts, as
defined in FAR part 2, except where expressly excluded. The EDAR
implements or supplements the FAR and incorporates, together with the
FAR, Department policies, procedures, contract clauses, solicitation
provisions, and forms that govern the contracting process or otherwise
control the relationship between the Department, including its sub-
organizations, and contractors or prospective contractors.
(b) The statute at 20 U.S.C. 1018a provides the PBO with
procurement authority and flexibility associated with sections (a)-(l)
of the statute.
3401.105, 3401.105-2, and 3401.105-3 [Removed]
0
4. Remove sections 3401.105, 3401.105-2, and 3401.105-3.
3401.301 [Removed]
0
5. Remove section 3401.301.
3401.304 [Removed]
0
6. Remove section 3401.304.
3401.401 [Removed]
0
7. Remove section 3401.401.
Subpart 3401.5 [Removed]
0
8. Remove subpart 3401.5, consisting of sections 3401.501 and 3401.501-
2.
0
9. Revise section 3401.602-3 to read as follows:
3401.602-3 Ratification of unauthorized commitments.
(a) Definitions. As used in this subpart, commitment includes
issuance of letters of intent and arrangements for free vendor services
or use of equipment with the promise or the appearance of commitment
that a contract, modification, or order will, or may, be awarded.
(b) Policy. (1) The Government is not bound by agreements with, or
contractual commitments made to, prospective contractors by individuals
who do not have delegated contracting authority or by contracting
officers acting in excess of the limits of their delegated authority.
Unauthorized commitments do not follow the appropriate process for the
expenditure of Government funds. Consequently, the Government may not
be able to ratify certain actions, putting a contractor at risk for
taking direction from a Federal official other than the contracting
officer. See FAR 1.602-1. Government employees responsible for
unauthorized commitments are subject to disciplinary action.
(2) The HCA must review and sign or reject all ratification
requests, with the exception that the Chief of the Contracting Office
is authorized to review and sign or reject ratification requests for
unauthorized commitments up to $25,000.
3401.670 [Removed]
0
10. Remove section 3401.670.
3401.670-1 [Removed]
0
11. Remove section 3401.670-1.
3401.670-2 [Removed]
0
12. Remove section 3401.670-2.
3401.670-3 [Redesignated as 3401.604-70]
0
13. Redesignate section 3401.670-3 as section 3401.604-70.
PART 3402--DEFINITIONS OF WORDS AND TERMS
0
14. The authority citation for part 3402 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
15. Amend section 3402.101 by:
0
a. Removing the definition of ``Chief Acquisition Officer''.
0
b. Revising the definition of ``Chief of the Contracting Office''.
0
c. Removing the definition of ``Contracting Officer's Representative''.
0
d. Revising the definition of ``Head of the Contracting Activity''.
0
e. Adding a definition of ``Requiring activity'' in alphabetical order.
The revisions and addition read as follows:
3402.101 Definitions.
* * * * *
Chief of the Contracting Office or COCO means an official serving
in the contracting activity (Contracts and Acquisition Management (CAM)
or Federal Student Aid (FSA) Acquisitions) as the manager of a group
that awards and administers contracts for a principal office of the
Department. See also definition of Head of the Contracting Activity or
HCA in this section.
* * * * *
Head of the Contracting Activity or HCA means those officials
within the Department who have responsibility for and manage an
acquisition organization and usually hold unlimited procurement
authority. The Executive Director, Acquisitions Director, Federal
Student Aid, is the HCA for FSA. The Director, Contracts and
Acquisitions Management (CAM), is the HCA for all other Departmental
program offices and all boards, commissions, and councils under the
management control of the Department.
* * * * *
Requiring activity means the principal office charged with meeting
or supporting a mission and delivering requirements. The requiring
activity is responsible for obtaining funding or developing the program
objectives. The requiring activity may also be the organizational unit
that submits a
[[Page 10226]]
written requirement or statement of need for services required by a
contract.
* * * * *
3402.101-70 [Removed]
0
16. Remove section 3402.101-70.
PART 3403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
17. The authority citation for part 3403 continues to read as follows:
Authority: 5 U.S.C. 301.
3403.101-3 [Removed]
0
18. Remove section 3403.101-3.
0
19. Add sections 3403.104 and 3403.104-7 to read as follows:
3403.104 Procurement integrity.
3403.104-7 Violations or possible violations.
(d)(2)(ii)(B) The Senior Procurement Executive (SPE) is the agency
head for the purposes of FAR 3.104-7(d)(2)(ii)(B).
0
20. Add section 3403.204 to read as follows:
3403.204 Treatment of violations.
(a) The SPE is the agency head's designee for the purposes of FAR
3.204.
3403.409 [Redesignated as 3403.405]
0
21. Redesignate section 3403.409 as section 3403.405.
0
22. Revise section 3403.602 to read as follows:
3403.602 Exceptions.
The SPE is the agency head's designee for the purposes of FAR
3.602.
0
23. Add subpart 3403.7 to read as follows:
Subpart 3403.7--Voiding and Rescinding Contracts
Sec.
3403.704 Policy.
3403.705 Procedures.
Subpart 3403.7--Voiding and Rescinding Contracts
3403.704 Policy.
(a) The Senior Procurement Executive (SPE) is the agency head's
designee for the purposes of FAR 3.704.
3403.705 Procedures.
(a) Reporting. The SPE is the agency head's designee for the
purposes of FAR 3.705.
0
24. Add subpart 3403.9 to read as follows:
Subpart 3403.9--Whistleblower Protections for Contractor Employees
Sec.
3403.905 Procedures for investigating complaints.
3403.906 Remedies.
Subpart 3403.9--Whistleblower Protections for Contractor Employees
3403.905 Procedures for investigating complaints.
(c) The Senior Procurement Executive (SPE) is the agency head's
designee for the purposes of FAR 3.905.
3403.906 Remedies.
(a) The SPE is the agency head's designee for the purposes of FAR
3.906.
0
25. Add part 3404 to subchapter A to read as follows:
PART 3404--ADMINISTRATIVE AND INFORMATION MATTERS
Sec.
3404.000 Scope of part.
3404.001 Definitions.
Subpart 3404.4--Safeguarding Classified Information Within Industry
3404.470 Contractor security vetting requirements.
3404.470-1 Contract clause.
Subpart 3404.7--Contractor Records Retention
3404.710 Contractor officer records management responsibilities.
3404.770 Contract clause.
Subpart 3404.8--Government Contract Files
3404.804 Closeout of contract files.
3404.804-5 Procedures for closing out contract files.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c); and 41 U.S.C. 3102.
3404.000 Scope of part.
3404.001 Definitions.
Federal record, as defined in 44 U.S.C. 3301, means all recorded
information, regardless of form or characteristics, made or received by
the Department under Federal law or in connection with the transaction
of public business and preserved or appropriate for preservation by the
Department or its legitimate successor as evidence of the organization,
functions, policies, decisions, procedures, operations, or other
activities of the U.S. Government or because of the informational value
of data in them.
Records inventory means a descriptive listing of each Federal
record series or system that a contractor creates, receives, or
maintains in performance of the contract, together with an indication
of its location, retention, custodian, volume, and other pertinent
data.
Subpart 3404.4--Safeguarding Classified Information Within Industry
3404.470 Contractor security vetting requirements.
3404.470-1 Contract clause.
The contracting officer must include the clause at 3452.204-71,
Contractor security vetting requirements, in solicitations and
contracts when it is anticipated that contractor employees will have
access to proprietary or sensitive Department information including
``Controlled Unclassified Information'' as defined in 32 CFR 2002.4(h),
Department Information Technology (IT) systems, contractor systems
operated with Department data or interfacing with Department systems,
or Department facilities/space, or perform duties in a school or in a
location where children are present.
Subpart 3404.7--Contractor Records Retention
3404.710 Contractor officer records management responsibilities.
(a) Contracting officers must obtain a records inventory from the
requiring activity and include it in each solicitation and contract. At
least annually, contracting officers must obtain from the requiring
activity a current, accurate, and complete records inventory for
inclusion in the contract or confirmation, in writing, that the records
inventory currently incorporated in the contract is accurate and
complete.
(b) Upon notification from the contractor of any unlawful or
accidental removal, defacing, alteration, or destruction of Federal
records, including all forms of mutilation, the contracting officer
must notify the requiring activity, the Department Records Officer, and
the HCA within one business day.
3404.770 Contract clause.
The contracting officer must insert the clause at 3452.204-70,
Records management, in all solicitations and contracts where the
contractor will receive, create, work with, or otherwise handle Federal
records, as defined in 44 U.S.C. 3301(a), regardless of the medium in
which the record exists.
Subpart 3404.8--Government Contract Files
3404.804 Closeout of contract files.
3404.804-5 Procedures for closing out contract files.
(a)(16) The contractor has provided written affirmation that the
contractor has transferred all Federal records that
[[Page 10227]]
the contractor created, received, or maintained in performance of the
contract to the Federal Government, and the contractor has not retained
a copy of any Federal record that contains information covered by 32
CFR part 2002 or that is generally protected from public disclosure by
an exemption under the Freedom of Information Act (FOIA) with the
exception, for the purposes of FOIA, of information that exclusively
implicates the exemption 4 interests of the contractor.
PART 3406--COMPETITION REQUIREMENTS
0
26. The authority citation for part 3406 continues to read as follows:
Authority: 5 U.S.C. 301; 41 U.S.C. 418(a) and (b); and 20
U.S.C. 1018a.
0
27. Add section 3406.302-2 to read as follows:
3406.302-2 Unusual and compelling urgency.
(d)(1)(ii) The Senior Procurement Executive (SPE) is the agency
head's designee for the purposes of FAR 6.302-2(d)(1)(ii).
(d)(2)(ii) The SPE is the agency head's designee for the purposes
of FAR 6.302-2(d)(2)(ii).
0
28. Add part 3407 to subchapter B to read as follows:
PART 3407--ACQUISITION PLANNING
Subpart 3407.1--Acquisition Plans
Sec.
3407.103 Agency head responsibilities.
Authority: 5 U.S.C. 301.
Subpart 3407.1--Acquisition Plans
3407.103 Agency head responsibilities.
The Senior Procurement Executive (SPE) is the agency head's
designee for the purposes of FAR 7.103.
PART 3408--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
29. The authority citation for part 3408 continues to read as follows:
Authority: 5 U.S.C. 301, unless otherwise noted.
3408.870 [Removed]
0
30. Remove section 3408.870.
PART 3409--CONTRACTOR QUALIFICATIONS
0
31. The authority citation for part 3409 continues to read as follows:
Authority: 5 U.S.C. 301.
0
32. Revise section 3409.507-2 to read as follows:
3409.507-2 Contract clause.
The contracting officer must insert the clause at 3452.209-71
(Conflict of interest) in all contracts for services above the
simplified acquisition threshold.
3409.570 [Removed]
0
33. Remove section 3409.570.
PART 3412--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
0
34. The authority citation for part 3412 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
35. Add section 3412.301 to read as follows:
3412.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
(f)(1) The clause at 3452.224-73 has been authorized for inclusion
in acquisition of commercial products and commercial services. Refer to
3424.70 for provisions related to the use of this clause.
PART 3416--TYPES OF CONTRACTS
0
36. The authority citation for part 3416 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
37. Revise section 3416.307 to read as follows:
3416.307 Contract clauses.
(a) If the clause at FAR 52.216-7 (Allowable Cost and Payment) is
used in a contract with a hospital, the contracting officer must modify
the clause by deleting the words ``Federal Acquisition Regulation (FAR)
subpart 31.2'' from paragraph (a)(1) and substituting ``45 CFR part 75,
appendix IX.''
(b) The contracting officer must insert the clause at 3452.216-70
(Additional cost principles) in all solicitations of and resultant
cost-reimbursement contracts with nonprofit organizations other than
educational institutions, hospitals, or organizations listed in 2 CFR
part 200, subpart E.
0
38. Amend section 3416.470 by revising paragraph (f)(2) to read as
follows:
3416.470 Award-term contracting.
* * * * *
(f) * * *
(2) The extension of the contract as a result of an earned award
term period is affected by a bilateral contract modification.
* * * * *
0
39. Add subpart 3416.5 to read as follows:
Subpart 3416.5--Indefinite-Delivery Contracts
3416.505 Ordering.
(b)(8) Task-order and delivery-order ombudsman. The Deputy Director
of CAM is the agency head's designee for the purposes of FAR
16.505(b)(8).
PART 3417--SPECIAL CONTRACTING METHODS
0
40. The authority citation for part 3417 continues to read as follows:
Authority: 31 U.S.C. 1535 and 20 U.S.C. 1018a.
0
41. Add subpart 3417.1 to read as follows:
Subpart 3417.1--Multiyear Contracting
3417.104 General.
(b) The Senior Procurement Executive (SPE) is the agency head for
the purposes of FAR 17.104(b).
0
42. Revise section 3417.207 to read as follows:
3417.207 Exercise of options.
(c) For contracts that contain the clause at 3452.204-70, Records
management, in addition to the requirements at FAR 17.207(c), the
contracting officer may exercise an option only after:
(1) Obtaining the requiring activity's written confirmation that
the records inventory currently incorporated in the contract is
current, accurate, and complete; or
(2) Obtaining a revised up-to-date records inventory from the
requiring activity.
(3) The contracting officer must include the up-to-date records
inventory in the contract by separate, bilateral modification.
PART 3419--SMALL BUSINESS PROGRAMS
0
43. The authority citation for part 3419 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
44. Revise section 3419.201-70 to read as follows:
3419.201-70 Office of Small and Disadvantaged Business Utilization
(OSDBU).
The Office of Small and Disadvantaged Business Utilization (OSDBU)
is responsible for facilitating
[[Page 10228]]
the implementation of the Small Business Act, as described in FAR
19.201. The OSDBU develops rules, policy, procedures, and guidelines
for the effective administration of the Department's small business
program.
3419.502-4 [Redesignated as 3419.502-70]
0
45. Redesignate section 3419.502-4 as section 3419.502-70.
0
46. Add section 3419.502-8 to read as follows:
3419.502-8 Rejecting Small Business Administration recommendations.
(d) The Senior Procurement Executive (SPE) is the agency head for
the purposes of FAR 19.502-8.
0
47. Add subpart 3419.8 to read as follows:
Subpart 3419.8--Contracting With the Small Business Administration (the
8(a) Program)
Sec.
3419.810 SBA appeals.
3419.812 Contract administration.
Subpart 3419.8--Contracting With the Small Business Administration
(the 8(a) Program)
3419.810 SBA appeals.
(a) The SPE is the agency head for the purposes of FAR 19.810.
3419.812 Contract administration.
(d) The HCA is the agency head for the purposes of FAR 19.812(d).
PART 3424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
0
48. The authority citation for part 3424 continues to read as follows:
Authority: 5 U.S.C. 301.
0
49. Add subpart 3424.7 to read as follows:
Subpart 3424.7--The Family Educational Rights and Privacy Act
Sec.
3424.701 Authority.
3424.702 Policy.
3424.703 Procedures.
3424.704 Contract clause.
Subpart 3424.7--The Family Educational Rights and Privacy Act
3424.701 Authority.
This subpart implements the Family Educational Rights and Privacy
Act (FERPA or the Act), 20 U.S.C. 1232g. Additional FERPA-implementing
regulations are found at 34 CFR part 99.
3424.702 Policy.
It is the Department's policy to designate as its authorized
representative, for purposes of compliance with FERPA, any contractor
that will collect or receive access to personally identifiable
information (PII) from student education records in connection with the
conduct of an audit, evaluation, study, compliance review, or other
Federal law enforcement activity. The Department will notify such
contractors, or prospective contractors, prior to award or during
contract performance of their obligations to protect student privacy in
compliance with FERPA. Further, the Department will incorporate into
all relevant solicitations and contracts the provisions and clauses
needed to implement FERPA requirements. The aforementioned policies do
not apply to Federal Student Aid (FSA) contracts for the origination,
servicing, or collection of student financial aid, provided such
contracts do not include tasks relating to the conduct of an audit,
evaluation, study, compliance review, or other enforcement activity.
3424.703 Procedures.
During acquisition planning, the requiring activity, in
consultation with the Department's Senior Agency Official for Privacy
(SAOP) and Director of the Student Privacy Policy Office (SPPO
Director), must review requirements to determine whether the contract
will require the Department to share PII from students' education
records with its contractor or authorize its contractor to collect such
PII from students' education records for the purposes of conducting a
study, evaluation, or audit of a federally supported education program,
or the enforcement of Federal legal requirements that relate to such
education programs. The requiring activity must notify the contracting
officer of the determination.
3424.704 Contract clause.
The contracting officer must insert the clause at 3452.224-73 in
all solicitations and contracts, including those for the acquisition of
commercial products and commercial services, when a requiring activity
has provided notification that a contractor will collect or receive
access to PII from student education records in connection with
carrying out an audit, evaluation, study, compliance review, or other
Federal law enforcement activity on behalf of the Department. The
contracting officer must fill out paragraph (b) of the clause at
3452.224-73 with the type(s) of PII to be collected or accessed by
contractor.
PART 3428--BONDS AND INSURANCE
0
50. The authority citation for part 3428 continues to read as follows:
Authority: 5 U.S.C. 301.
0
51. Revise section 3428.311-2 to read as follows:
3428.311-2 Agency solicitation provisions and contract clauses.
The contracting officer must insert the clause at 3452.228-70
(Required insurance) in all solicitations and contracts when a cost-
reimbursement contract is contemplated.
0
52. Add part 3430 to subchapter E to read as follows:
PART 3430--COST ACCOUNTING STANDARDS ADMINISTRATIONS
Subpart 3430.2--CAS Program Requirements
Sec.
3430.201 Contract requirements.
3430.201-5 Waiver.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c); and 41 U.S.C. 3102.
Subpart 3430.2--CAS Program Requirements
3430.201 Contract requirements.
3430.201-5 Waiver.
(a) The Senior Procurement Executive (SPE) is the head of the
agency for the purposes of FAR 30.201-5(a) and (b).
0
53. Add part 3431 to subchapter E to read as follows:
PART 3431--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 3431.1--Applicability
Sec.
3431.101 Objectives.
Subpart 3431.2--Contracts With Commercial Organizations
3431.205 Selected costs.
3431.205-71 Noncontractor travel.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c); and 41 U.S.C. 3102.
Subpart 3431.1--Applicability
3431.101 Objectives.
The Senior Procurement Executive (SPE) is the agency head's
designee for the purposes of FAR 31.101.
Subpart 3431.2--Contracts With Commercial Organizations
3431.205 Selected costs.
3431.205-71 Noncontractor travel.
The contracting officer may insert the clause at 3452.231-71
(Invitational travel costs) in solicitations and contracts when travel
by other than Federal or contractor personnel will be required in
performance of the contract.
[[Page 10229]]
PART 3432--CONTRACT FINANCING
0
54. The authority citation for part 3432 continues to read as follows:
Authority: 5 U.S.C. 301.
0
55. Add sections 3432.000, 3432.006, and 3432.006-3 to read as follows:
3432.000 Scope of part.
3432.006 Reduction or suspension of contract payments upon finding of
fraud.
3432.006-3 Responsibilities.
(b) Department personnel must report immediately and in writing any
apparent or suspected instance where the contractor's request for
advance, partial, or progress payments is based on fraud. The report
must be made to the contracting officer and the Assistant Inspector
General for Investigations. The report must outline the events, acts,
or conditions that indicate the apparent or suspected violation and
include all pertinent documents. The Assistant Inspector General for
Investigations will investigate, as appropriate. If appropriate, the
Office of the Inspector General will provide a report to the SPE.
3432.705 and 3432.705-2 [Redesignated as 3432.706 and 3432.706-2]
0
56. Sections 3432.705 and 3432.705-2 are redesignated as sections
3432.706 and 3432.706-2.
0
57. Amend newly redesignated section 3432.706-2 by:
0
a. Redesignating paragraphs (a) and (b) as paragraphs (c) and (d); and
0
b. Adding paragraph (e).
The addition reads as follows:
3432.705-2 Clauses for limitation of cost or funds.
* * * * *
(e)(1) The contracting officer must insert the clause at 3452.232-
72 (Limitation of Government's obligation) in solicitations and
resultant incrementally funded fixed-price contracts or contract line
items (CLIN(s)) of such contracts only if--
(i) Sufficient funds are not available to the Department at the
time of contract award or exercise of option to fully fund the
contract, option, or CLIN(s); and
(ii) The contract (excluding any options), any exercised option, or
CLIN(s)--
(A) Is for severable services; and
(B) Does not exceed one year in length; and
(C) Is incrementally funded using funds available (unexpired) as of
the date the funds are obligated; or
(D) Congress has otherwise authorized incremental funding.
(2) When a partially funded contract contains the clause at
3452.232-72 (Limitation of Government's obligation) upon learning that
the contractor is approaching the price of the contract or the limit of
the funds allotted to the contract or specified CLIN(s) or upon receipt
of the contractor's notice under paragraph (b) of the clause at
3452.232-72, the contracting officer must promptly obtain funding
information pertinent to the continuation of the applicable CLIN(s) or
contract and notify the contractor in writing. This notification must
provide that--
(i)(A) Additional funds have been allotted, in a specified amount;
(B) The contract or applicable CLIN(s) is not to be further funded;
(C) The contract or applicable CLIN(s) is to be terminated; or
(D) The Government is considering whether to allot additional
funds;
(ii) The contractor is entitled by the contract terms to stop work
on applicable CLIN(s) when the funding limit is reached; and
(iii) Any work beyond the funding limit will be at the contractor's
risk.
(3) Upon learning that a partially funded contract will receive no
further funds, the contracting officer must promptly give the
contractor written notice of the decision not to provide funds.
(4) The contracting officer must ensure that sufficient funds are
allotted to the contract or applicable CLIN(s) to cover the total
amount payable to the contractor in the event of termination for the
convenience of the Government.
(5) The Government must not accept supplies or services under an
incrementally funded contract or CLIN(s) once funding limits are
reached until the contracting officer has given the contractor notice,
to be confirmed in writing, that funds are available.
(6) Government personnel encouraging a contractor to continue work
in the absence of funds will incur a violation of Revised Statutes
section 3679 (31 U.S.C. 1341) that may subject the violator to civil or
criminal penalties.
(7) An incrementally funded fixed-price contract and/or CLIN(s)
must be fully funded as soon as funds are available.
(8) The contracting officer must insert the information required in
the table in paragraph (l) of the clause at 3452.232-72. Since the
funds allotted must cover costs of termination of the applicable
CLIN(s) for the Government's convenience, the contractor must provide
the last date of performance subject to the contracting officer's
concurrence. The contracting officer may revise the contractor's
notification period in paragraph (b) of the clause from ``ninety'' to
``thirty'' or ``sixty'' days, as appropriate.
PART 3433--PROTESTS, DISPUTES, AND APPEALS
0
58. The authority citation for part 3433 continues to read as follows:
Authority: 5 U.S.C. 301.
0
59. Revise section 3433.103 to read as follows:
3433.103 Protests to the agency.
(d)(4)(i) All protests to the agency must be submitted to the
contracting officer identified in the solicitation. Interested parties
may request an independent review of their protest as an alternative to
consideration by the contracting officer. If a protest is silent on
this matter, the contracting officer will decide the protest. The
Department will not consider an appeal of the contracting officer's
protest decision.
(ii) If the protester requests an independent review, the HCA will
decide the protest. In the event the HCA is not at least one level
above the contracting officer, or if the HCA has been substantially
involved in the procurement, the SPE will decide the protest.
(iii) Contracting officers must include the provision at 3452.233-
70 in solicitations.
(f)(3) The contracting officer's HCA must approve the justification
or determination to continue performance.
PART 3437--SERVICE CONTRACTING
0
60. The authority citation for part 3437 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
61. Revise subpart 3437.2 to read as follows:
Subpart 3437.2--Advisory and Assistance Services
Sec.
3437.204 Guidelines for determining availability of personnel.
3437.270 Services of consultants clause.
Subpart 3437.2--Advisory and Assistance Services
3437.204 Guidelines for determining availability of personnel.
The HCA is the agency head for the purposes of FAR 37.204.
3437.270 Services of consultants clause.
The contracting officer must insert the clause at 3452.237-70
(Services of consultants) in all solicitations and resultant cost-
reimbursement contracts for consultant services that do not provide
services to Federal Student Aid (FSA).
[[Page 10230]]
0
62. Add section 3437.601 to read as follows:
3437.601 General.
It is the Department's policy that all new service contracts must
be performance-based, with clearly defined deliverables and performance
standards. Any deviations from this policy must be fully justified in
writing and approved by the HCA.
PART 3439--ACQUISITION OF INFORMATION TECHNOLOGY
0
63. The authority citation for part 3439 continues to read as follows:
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
0
64. Revise section 3439.702 to read as follows:
3439.702 Department information security and privacy requirements.
The contracting officer must include the clause at 3452.239-71
(Department information security and privacy requirements) in all
solicitations and contracts.
3439.703 [Removed]
0
65. Remove section 3439.703.
PART 3442--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
66. The authority citation for part 3442 continues to read as follows:
Authority: 5 U.S.C. 301.
0
67. Revise section 3442.7101 to read as follows:
3442.7101 Policy and clause.
(a) It is the policy of the Department that all meetings,
conferences, and seminars be accessible to persons with disabilities.
(b) The contracting officer must insert the clause at 3452.242-73
(Accessibility of meetings, conferences, and seminars to persons with
disabilities) in all solicitations and contracts where conferences are
contemplated.
PART 3443--CONTRACT MODIFICATIONS
0
68. The authority citation for part 3443 continues to read as follows:
Authority: 5 U.S.C. 301.
0
69. Revise section 3443.107 to read as follows:
3443.107 Contract clause.
The contracting officer must insert a clause substantially the same
as the clause at 3452.243-70 (Key personnel) in all solicitations and
contracts in which it will be essential for the contracting officer to
be notified that a change of designated key personnel is to take place
by the contractor.
PART 3447--TRANSPORTATION
0
70. The authority citation for part 3447 continues to read as follows:
Authority: 5 U.S.C. 301.
0
71. Revise section 3447.701 to read as follows:
3447.701 Foreign travel clause.
The contracting officer must insert the clause at 3452.247-70
(Foreign travel) in all solicitations and resultant cost-reimbursement
contracts where foreign travel is contemplated.
PART 3452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
72. The authority citation for part 3452 continues to read as follows:
Authority: 5 U.S.C. 301.
0
73. Add section 3452.204-70 to read as follows:
3452.204-70 Records management.
As prescribed in 3404.770, insert the following clause:
Records Management (Date)
A. Applicability
This clause applies to all Contractors and subcontractors that
receive, create, work with, or otherwise handle Federal records, as
defined in paragraph B, regardless of the medium in which the record
exists.
B. Definitions
``Federal record,'' as defined in 44 U.S.C. 3301, means all
recorded information, regardless of form or characteristics, made or
received by the Department under Federal law or in connection with
the transaction of public business and preserved or appropriate for
preservation by the Department or its legitimate successor as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the U.S. Government
or because of the informational value of data in them.
``Records inventory,'' as used in this clause, means a
descriptive listing of each Federal record series or system that a
Contractor creates, receives, or maintains in performance of its
contract with the Department, together with an indication of its
location, retention, custodian, volume, and other pertinent data.
C. Requirements
1. The Contractor shall comply with all applicable records
management laws and regulations, as well as National Archives and
Records Administration (NARA) records policies, including the
Federal Records Act (44 U.S.C. chapters 21, 29, 31, and 33), NARA
regulations at 36 CFR chapter XII, subchapter B, including 36 CFR
part 1236, and those policies associated with the safeguarding of
Federal records covered by the Privacy Act of 1974, as amended
(Privacy Act) (5 U.S.C. 552a). These laws, regulations, and policies
include the appropriate preservation of all Federal records,
regardless of form or characteristics, mode of transmission, or
state of completion.
2. In accordance with 36 CFR 1222.32, all data created for U.S.
Government use and delivered to, or falling under the legal control
of, the U.S. Government are Federal records subject to the
provisions of 44 U.S.C. chapters 21, 29, 31, and 33, the Freedom of
Information Act, as amended (FOIA) (5 U.S.C. 552), and the Privacy
Act, and must be managed and scheduled for disposition only as
permitted by Federal statute or regulation.
3. In accordance with 36 CFR 1222.32, the Contractor shall
maintain and manage all Federal records created for U.S. Government
use, created during performance of this contract, and/or delivered
to, or under the legal control of, the U.S. Government in accordance
with Federal law. Electronic Federal records and associated metadata
specified for delivery under this contract must be accompanied by
sufficient technical documentation to facilitate their understanding
and use.
4. This contract includes a records inventory, which the
Department maintains as current, accurate, and complete.
(a) Upon Contracting Officer request, the Contractor shall
provide input and assistance in maintaining the current, accurate,
and complete state of the records inventory.
(b) If the Contractor creates, receives, or maintains a Federal
record series or system that is not included in the records
inventory, the Contractor shall notify the Contracting Officer
within five business days of the Contractor's creation, receipt, or
maintenance of such Federal record series or system, and provide the
Contracting Officer with all information necessary for the
Department to appropriately update the records inventory.
(c) Any necessary update to the records inventory will be
effectuated by a modification to the contract.
5. The U.S. Government reserves the right to inspect, at any
time, Contractor and subcontractor policies, procedures, and
strategies for ensuring that Federal records are appropriately
maintained.
6. The Contractor is responsible for preventing the alienation
or unauthorized destruction of Federal records under this contract,
including all forms of mutilation. Federal records may not be
removed from the legal custody of the Department or destroyed except
in accordance with the provisions of this contract and the Federal
Records Act. Willful and unlawful destruction, damage, or alienation
of Federal records is subject to the fines and penalties imposed by
18 U.S.C. 2701. The Contractor shall report any unlawful or
accidental removal, defacing, alteration, or destruction of Federal
records to the Contracting Officer within one business day.
7. The Contractor shall ensure that the appropriate personnel,
administrative, technical, and physical safeguards are established
to ensure the security and confidentiality of all Federal records in
[[Page 10231]]
accordance with this contract and applicable law.
8. The Contractor shall not remove material from U.S. Government
facilities or systems, or facilities or systems operated or
maintained on the U.S. Government's behalf, without the express
prior written authorization of the Contracting Officer.
9. The Contractor shall not create or maintain any Federal
records containing any non-public Department information not
specified or authorized by this contract.
10. (a) During the term of this contract, the Contractor shall
not (i) disclose any Federal record, or any copy thereof, that
contains information covered by 32 CFR part 2002 or FOIA (with the
exception, for the purposes of FOIA, of information that exclusively
implicates the exemption 4 interests of the Contractor); or (ii)
sell any Federal record, or any copy thereof.
(b) After expiration or termination of this contract, the
Contractor shall not retain or have access to any Federal record, or
any copy thereof, that contains information covered by 32 CFR part
2002 or that is generally protected from public disclosure by an
exemption under FOIA with the exception, for the purposes of FOIA,
of information that exclusively implicates the exemption 4 interests
of the Contractor.
(c) Under no circumstances shall the Contractor destroy Federal
records except in accordance with the provisions of this contract
and the Federal Records Act.
11. All Contractor employees assigned to this contract who
create, work with, or otherwise handle Federal records are required
to complete Department-provided records management training. The
Contractor is responsible for confirming training has been completed
according to Department policies, including initial training and any
annual or refresher training.
12. The Contractor is required to notify the Contracting Officer
of any contractual relationship (sub-contractor) in support of this
contract requiring the disclosure of information, documentary
material and/or Federal records generated under, or relating to,
contracts. The Contractor (and any sub-contractor) is required to
abide by U.S. Government and the Department's guidance for
protecting sensitive, proprietary information, classified, and
controlled unclassified information.
(a) The Contractor shall incorporate the substance of this
clause, its terms and requirements including this paragraph, in all
subcontracts requiring the disclosure to a subcontractor of
information, documentary material, and/or Federal records generated
under, or relating to, the performance of this contract, and require
written subcontractor acknowledgement of the same.
(b) Violation by a subcontractor of any provision set forth in
this clause will be attributed to the Contractor.
(End of Clause)
0
74. Add section 3452.204-71 to read as follows:
3452.204-71 Contractor security vetting requirements.
As prescribed in 3404.470-1, insert the following clause:
Contractor Security Vetting Requirements (Date)
(a) The Contractor and its subcontractors shall comply with
Department of Education personnel, cyber, privacy, and security
policy requirements set forth in ``Contractor Security Vetting
Requirements'' at <a href="http://www.ed.gov/fund/contract/about/bsp.html">http://www.ed.gov/fund/contract/about/bsp.html</a>.
(b) Contractor employees who will have access to proprietary or
sensitive Department information including ``Controlled Unclassified
Information'' as defined in 32 CFR 2002.4(h), Department IT systems,
Contractor systems operated with Department data or interfacing with
Department systems, or Department facilities or space, or perform
duties in a school or in a location where children are present, must
undergo a personnel security screening and receive a favorable
determination and are subject to reinvestigation as described in the
``Contractor Vetting Security Requirements.'' Compliance with the
``Contractor Vetting Security Requirements,'' as amended, is
required.
(c) The type of security investigation required to commence work
on a Department contract is dictated by the position designation
determination assigned by the Department. All Department Contractor
positions are designated commensurate with their position risk/
sensitivity, in accordance with title 5 of the Code of Federal
Regulations (5 CFR 731.106) and OPM's Position Designation Tool
(PDT) located at: <a href="https://pdt.nbis.mil/">https://pdt.nbis.mil/</a>. The position designation
determines the risk level and the corresponding level of background
investigations required.
(d) The Contractor shall comply with all Contractor position
designations established by the Department.
(e) The following are the Contractor employee positions required
under this contract and their designated risk levels:
High Risk (HR): (Specify HR positions or Insert ``Not Applicable'')
Moderate Risk (MR): (Specify MR positions or Insert ``Not
Applicable'')
Low Risk (LR): Specify LR positions or Insert ``Not Applicable'')
(f) For performance-based contracts where the Department has not
identified required labor categories for Contractor positions, the
Department considers the risk sensitivity of the services to be
performed and the access to Department facilities and systems that
will be required during performance, to determine the uniform
Contractor position risk level designation for all Contractor
employees who will be providing services under the contract. The
uniform Contractor position risk level designation applicable to
this performance-based contract is: (Contracting Officer to complete
with overall risk level; or insert ``Not Applicable'').
(g) Only U.S. citizens will be eligible for employment on
contracts requiring a Low Risk/Public Trust, Moderate Risk/Public
Trust, High Risk/Public Trust, or a National Security designation.
(h) An approved waiver, in accordance with the ``Contractor
Vetting Security Requirements,'' is required for any exception to
the requirements of paragraph (g) of this section.
(i) The Contractor shall--
(1) Comply with the Principal Office (PO) processing
requirements for personnel security screening;
(2) Ensure that no Contractor employee is placed in a higher
risk position than for which the employee is approved;
(3) Ensure Contractor employees submit required security forms
for reinvestigation in accordance with the time frames set forth in
the ``Contractor Vetting Security Requirements'';
(4) Report to the COR any information (e.g., personal conduct,
criminal conduct, financial difficulties) that would raise a concern
about the suitability of a Contractor employee or whether a
Contractor employee's continued employment would promote the
efficiency of the service or violate the public trust;
(5) Protect sensitive and Privacy Act-protected information,
including ``Controlled Unclassified Information'' as defined in 32
CFR 2002.4(h), from unauthorized access, use, or misuse by its
Contractor employees, prevent unauthorized access by others, and
report any instances of unauthorized access, use, or misuse to the
COR;
(6) Report to the COR any removal of a Contractor employee from
a contract within one business day if removed for cause or within
two business days if otherwise removed;
(7) Upon the occurrence of any of the events listed under
paragraph (b) of FAR Clause 52.204-9, Personal Identity Verification
of Contractor Personnel, return a PIV ID to the COR within seven
business days of the Contractor employee's departure; and
(8) Report to the COR any change to job activities that could
result in a change in the Contractor employee's position or the need
for increased security access.
(j) Failure to comply with any of the personnel security
requirements in the ``Contractor Security Vetting Requirements'' at
<a href="http://www.ed.gov/fund/contract/about/bsp.html">http://www.ed.gov/fund/contract/about/bsp.html</a>, may result in a
termination of the contract for default or cause.
(End of Clause)
3452.208-71 [Removed]
0
75. Remove section 3452.208-71.
0
76. Amend section 3452.216-71 by revising the date of the clause and
paragraph (e) to read as follows:
3452.216-71 Award-Term.
* * * * *
Award-Term (Date)
* * * * *
(e) The contract term or ordering period requires bilateral
modification to reflect the ATRB's decision to award and the
Contractor's agreement to accept an Award Term. If the contract term or
ordering period has one year remaining, the operation of the contract
Award
[[Page 10232]]
Term feature will cease and the contract term or ordering period will
not extend beyond the maximum term stated in the contract.
* * * * *
0
77. Revise section 3452.224-71 to read as follows:
3452.224-71 Notice about research activities involving human subjects.
As prescribed in 3424.170, insert the following provision in any
solicitation where a resultant contract will include, or is likely to
include, research activities involving human subjects covered under 34
CFR part 97:
Notice About Research Activities Involving Human Subjects (Date)
(a) Applicable Regulations. In accordance with Department of
Education regulations on the protection of human subjects, title 34,
Code of Federal Regulations, part 97 (the Regulations), Contractors
and subcontractors, engaged in covered (nonexempt) research
activities are required to establish and maintain procedures for the
protection of human subjects. In addition, the Contractor must
notify other entities (known to the Contractor) engaged in the
covered research activities of their responsibility to comply with
the Regulations.
(b) Definitions.
(1) The Regulations define research as ``a systematic
investigation, including research development, testing and
evaluation, designed to develop or contribute to generalizable
knowledge.'' (34 CFR 97.102(l)). If an activity follows a deliberate
plan designed to develop or contribute to generalizable knowledge,
it is research. Research includes activities that meet this
definition, whether or not they are conducted under a program
considered research for other purposes. For example, some
demonstration and service programs may include research activities
(34 CFR 97.102(l)).
(2) The Regulations define a human subject as a living
individual about whom an investigator (whether professional or
student) conducting research obtains data through intervention or
interaction with the individual or obtains, uses, studies, analyzes,
or generates identifiable private information. (34 CFR
97.102(e)(1)). Under this definition:
(i) The investigator gathers information about a living person
through--
(A) Intervention--Manipulating the subject's environment for
research purposes, as might occur when a new instructional technique
is tested; or
(B) Interaction--Communicating or interacting with the
individual, as occurs with surveys and interviews.
(ii) Identifiable private information is private information
about a living person that can be linked to that individual (the
identity of the subject is or may be readily ascertained by the
investigator or associated with the information).
(iii) Private information includes information about behavior
that occurs in a context in which an individual can reasonably
expect that no observation or recording is taking place, and
information that has been provided for specific purposes by an
individual and that an individual can reasonably expect will not be
made public (for example, a school health record).
(c) Exemptions. 34 CFR 97.104(d) provides exemptions from the
Federal Policy for the Protection of Human Subjects for research
activities in which the only involvement of human subjects will be
in one or more of the categories set forth in 34 CFR 97.104(d).
However, if the research subjects are children, the exemption at 34
CFR 97.104(d)(2) (i.e., research involving the use of educational
tests, survey procedures, interview procedures or observation of
public behavior) is modified by 34 CFR 97.401(b), as explained in
paragraph (d) of this provision.
(d) Children as research subjects. 34 CFR 97.402(a) defines
children as ``persons who have not attained the legal age for
consent to interventions or procedures involved in the research,
under the applicable law of the jurisdiction in which the research
will be conducted.'' 34 CFR 97.401(b) provides that, if the research
involves children as subjects--
(1) The exemption in 34 CFR 97.104(d)(2) does not apply to
activities involving--
(i) Survey or interview procedures involving children as
subjects; or
(ii) Observations of public behavior of children in which the
investigator or investigators will not participate in the activities
being observed.
(2) The exemption in 34 CFR 97.104(d)(2) continues to apply,
unmodified, by 34 CFR 97.401(b), to--
(i) Educational tests; and
(ii) Observations of public behavior in which the investigator
or investigators will not participate in the activities being
observed.
(e) Proposal Instructions. An offeror proposing to do research
that involves human subjects must provide information to the
Department on the proposed exempt and nonexempt research activities.
The offeror should submit this information as an attachment to its
technical proposal. No specific page limitation applies to this
requirement, but the offeror should be brief and to the point.
(1) For exempt research activities involving human subjects, the
offeror should identify the exemption(s) that applies and provide
sufficient information to allow the Department to determine that the
designated exemption(s) is appropriate.
(2) For nonexempt research activities involving human subjects,
the offeror must cover the following seven points in the information
it provides to the Department. This seven-point narrative can
usually be provided in two pages or less:
(i) Human subjects' involvement and characteristics: Describe
the characteristics of the subject population, including their
anticipated number, age range, and health status. Identify the
criteria for inclusion or exclusion of any subpopulation. Explain
the rationale for the involvement of special classes of subjects,
such as children, children with disabilities, adults with
disabilities, persons with mental disabilities, pregnant women,
institutionalized individuals, or others who are likely to be
vulnerable.
(ii) Sources of materials: Identify the sources of research
material obtained from or about individually identifiable living
human subjects in the form of specimens, records, or data.
(iii) Recruitment and informed consent: Describe plans for the
recruitment of subjects and the consent procedures to be followed.
(iv) Potential risks: Describe potential risks (physical,
psychological, social, financial, legal, educational, or other) and
assess their likelihood and seriousness. Where appropriate, discuss
alternative interventions and procedures that might be advantageous
to the subjects.
(v) Protection against risk: Describe the procedures for
protecting against or minimizing potential risks, including risks to
confidentiality, and assess the likely effectiveness of such
procedures. Where appropriate, discuss provisions for ensuring
necessary medical or professional intervention in the event of
adverse effects to the subjects. Also, where appropriate, describe
the provisions for monitoring the data collected to ensure the
safety of the subjects.
(vi) Importance of knowledge to be gained: Discuss why the risks
to the subjects are reasonable in relation to the importance of the
knowledge that may reasonably be expected to result.
(vii) Collaborating sites: If research involving human subjects
will take place at collaborating site(s), name the sites and briefly
describe their involvement or role in the research.
(3) If a reasonable potential exists that a need to conduct
research involving human subjects may be identified after award of
the contract and the offeror's proposal contains no definite plans
for such research, the offeror should briefly describe the
circumstances and nature of the potential research involving human
subjects.
(f) Assurances and certifications.
(1) In accordance with the Regulations and the terms of this
provision, all Contractors and subcontractors that will be engaged
in research activities involving human subjects shall be required to
comply with the requirements for Assurances and Institutional Review
Board approvals, as set forth in the contract clause 3452.224-72
(Research activities involving human subjects).
(2) The Contracting Officer reserves the right to require that
the offeror have or apply for the assurance and provide
documentation of Institutional Review Board (IRB) approval of the
proposed research prior to award. Based on 34 CFR 97.114 Cooperative
Research, any institution involved in cooperative research projects
(i.e., research projects covered by this Regulation that involve
more than one institution) shall enter into a joint review
arrangement or rely upon the approval of a single IRB (sIRB) and a
reliance agreement for any research conducted within the United
States.
(g) Additional information:
(1) The Regulations, and related information on the protection
of human research subjects, can be found on the Department's
protection of human subjects in research website: <a href="https://www2.ed.gov/about/offices/list/ocfo/humansub.html">https://www2.ed.gov/about/offices/list/ocfo/humansub.html</a>.
(2) Offerors may also contact the following office to obtain
information about the
[[Page 10233]]
Regulations, the protection of human subjects, and related policies
and guidelines: Protection of Human Subjects Coordinator, U.S.
Department of Education, Office of Finance and Operations, Office of
Acquisition, Grants, and Risk Management, 400 Maryland Avenue SW,
Washington, DC 20202-4331. Email: <a href="/cdn-cgi/l/email-protection#f9b18c949897aa8c9b939c9a8d8aab9c8a9c988b9a91b99c9dd79e968f"><span class="__cf_email__" data-cfemail="e7af928a8689b492858d82849394b58294828695848fa78283c9808891">[email protected]</span></a>.
(End of Provision)
0
78. Revise section 3452.224-72 to read as follows:
3452.224-72 Research activities involving human subjects.
As prescribed in 3424.170, insert the following clause in any
contract that includes research activities involving human subjects
covered under 34 CFR part 97:
Research Activities Involving Human Subjects (Date)
(a) In accordance with Department of Education (the
``Department'') regulations on the protection of human subjects in
research, title 34, Code of Federal Regulations, part 97 (the
Regulations), Contractors and subcontractors engaged in covered
(nonexempt) research activities shall establish and maintain
procedures for the protection of human subjects. The Contractor must
include the substance of this clause in all subcontracts. In
addition, the Contractor shall notify other entities (known to the
Contractor) engaged in the covered research activities of their
responsibility to comply with the regulations. The definitions in 34
CFR 97.102 apply to this clause. As used in this clause, ``covered
research'' means research involving human subjects that is not
exempt under 34 CFR 97.104 and 97.401(b).
(b) If the Department determines that proposed research
activities involving human subjects are covered (i.e., not exempt
under the regulations), the Contracting Officer (CO) or Contacting
Officer's Representative (COR) will require the Contractor to apply
for the Federal Wide Assurance from the Office for Human Research
Protections, U.S. Department of Health and Human Services, if the
Contractor does not already have certification on file. The CO will
also require that the Contractor obtain and send to the Department
documentation of Institutional Review Board (IRB) review and
approval of the proposed research.
(c) Under no condition shall the Contractor conduct, or allow to
be conducted, any research activity involving human subjects prior
to the Department's receipt of the certification that the proposed
research has been reviewed and approved by the IRB (34 CFR
97.103(f)). No research involving human subjects shall be initiated
under this contract until the Contractor has provided the CO (or the
COR) a properly completed certification form certifying IRB review
and approval of the research activity, and the CO or COR has
acknowledged the receipt of such certification.
(d) In accordance with 34 CFR 97.109(f)(1), unless IRB or the
Department determines otherwise, continuing review of research is
not required in the following conditions:
1. Research is eligible for expedited review;
2. Research is reviewed by the IRB in accordance with the
limited IRB review as described 34 CFR 97.104(d)(2)(iii); or
3. Research that is part of the IRB-approved study that has
progressed to the point that it involves only one or both of the
following:
i. data analysis, including analysis of identifiable private
information or identifiable biospecimens, or
ii. accessing follow-up clinical data from interventions that
subjects would undergo as part of clinical care.
(1) For each activity under this contract that requires
continuing review, the Contractor shall submit an annual written
representation to the CO or COR stating whether research activities
have been reviewed and approved by the IRB within the previous 12
months. The Contractor may use the form titled ``U.S. Department of
Health and Human Services (HHS) Subpart C Certification Form'' for
this representation. For multi-institutional projects, the
Contractor shall provide this representation on its behalf and on
behalf of any subcontractor engaged in research activities for which
continuing IRB reviews are required.
(2) If the IRB disapproves, suspends, terminates, or requires
modification of any research activities under this contract, the
Contractor shall immediately notify the CO in writing of the IRB's
action.
(e) The Contractor shall bear full responsibility for
performing, as safely as is feasible, all activities under this
contract involving the use of human subjects and for complying with
all applicable regulations and requirements concerning human
subjects. Neither the Contractor, subcontractor, agents of the
Contractor, or employees of the Contractor, nor any person,
organization, institution, or group of any kind involved in the
performance of such activities under this contract, shall be deemed
to constitute an agent or employee of the Department or of the
Federal government with respect to such activities. The Contractor
agrees to discharge its obligations, duties, and undertakings and
the work pursuant thereto, whether requiring professional judgment
or otherwise, as an independent contractor without imputing
liability on the part of the Government for the acts of the
Contractor, subcontractor, or their employees.
(f) Upon discovery of any noncompliance with any of the
requirements or standards as stated in this clause, the Contractor
shall correct such noncompliance as soon as practicable, typically
no later than 1 business day. If the CO determines, in consultation
with the Protection of Human Subjects Coordinator, Office of
Acquisition, Grants, and Risk Management, Office of Finance and
Operations, or the sponsoring office, that the Contractor is not in
compliance with the requirements or standards stated in this clause,
the CO may suspend work under this contract, in whole or in part,
until it is determined that the Contractor has corrected such
noncompliance and the CO authorizes the continuation of work.
1. Initial notice of suspension. The initial notice of
suspension under this clause may be communicated orally or in
writing by the CO.
2. Notice of suspension of work. The CO shall provide written
notice of suspension of work under this clause. The notice shall
contain the following:
a. The effective date of suspension of work.
b. The requirements and/or standards for which the Contractor is
out of compliance.
c. Any special instructions for the suspension of work.
3. Authorization to resume work. If the CO determines that the
noncompliance has been remedied and it is in the best interest of
the Government, the CO may authorize work to resume under the
contract. The CO will provide written notice to the Contractor of
such authorization.
(g) Non-compliance with the requirements or standards as stated
in this clause may result in the Government termination of this
contract for default, in full or in part, in accordance with FAR
49.401. Such termination may be in lieu of or in addition to
suspension of work under the contract. Nothing herein shall be
construed to limit the Government's right to terminate the contract
for failure to fully comply with such requirements or standards.
(h) The Regulations, and related information on the protection
of human research subjects, can be found on the Department's
protection of human subjects in research website: <a href="https://www2.ed.gov/about/offices/list/ocfo/humansub.html">https://www2.ed.gov/about/offices/list/ocfo/humansub.html</a>.
Contractors may also contact the following office to obtain
information about the regulations for the protection of human
subjects and related policies and guidelines: Protection of Human
Subjects Coordinator, U.S. Department of Education Office of Finance
and Operations, Office of Acquisition, Grants, and Risk Management,
400 Maryland Avenue SW, Washington, DC 20202-4331. Email:
<a href="/cdn-cgi/l/email-protection#c38bb6aea2ad90b6a1a9a6a0b7b091a6b0a6a2b1a0ab83a6a7eda4acb5"><span class="__cf_email__" data-cfemail="5b132e363a35082e39313e382f28093e283e3a2938331b3e3f753c342d">[email protected]</span></a>.
(End of Clause)
0
79. Add section 3452.224-73 to read as follows:
3452.224-73 Protection of student privacy in compliance with FERPA.
As prescribed in 3424.704, insert the following clause in
solicitations and contracts:
Protection of Student Privacy in Compliance With FERPA (Date)
(a) Pursuant to the Family Educational Rights and Privacy Act
(FERPA), 20 U.S.C. 1232g, and its implementing regulations, 34 CFR
part 99, the Department designates the Contractor to serve as an
authorized representative of the Secretary of Education, solely for
the purpose of carrying out an audit or evaluation of federally
supported education programs, the enforcement or compliance with
Federal legal requirements that relate to federally supported
education programs, or conducting a study for or on behalf of the
Department, to develop, validate, or administer predictive tests,
administer student aid programs, or improve instruction, as
specified in the statement of
[[Page 10234]]
work, the schedule, and other similar documents to the contract.
(b) The Contractor shall collect or receive access to the
following personally identifiable information from student education
records that is protected by FERPA: [specify the PII from student
education records to be collected or accessed by the Contractor, as
identified by the requiring activity] (collectively, the PII).
(c) The Contractor shall only use the PII to meet the purpose
set forth in paragraph (a) of this clause and for the activity,
scope, and duration specified in the statement of work, the
schedule, and other similar documents to the contract. Prior to
collecting or receiving access to the PII, the Contractor shall
establish policies and procedures, consistent with FERPA and other
Federal confidentiality and privacy provisions, to protect the PII
from further disclosure (except back to the Department) and
unauthorized use, including limiting use of the PII to only
authorized representatives with legitimate interests in the purpose
set forth in paragraph (a) of this clause.
(d) To the extent required to ensure the Contractor's compliance
with the provisions of FERPA and other Federal provisions, the
Contractor shall afford the Department and its authorized agents
access to all of the facilities, installations, technical
capabilities, operations, documentation, records, databases,
policies, procedures, and systems of the Contractor and any
subcontractor.
(e) The Contractor shall limit access to the PII to the
Contractor's personnel who require the PII to satisfy the
Contractor's obligations under the contract.
(f) If the Contractor collects or receives access to the PII to
conduct a study for, or on behalf of, an educational agency or
institution, then the Contractor shall conduct such study in a
manner that does not permit personal identification of parents and
students by anyone other than representatives of the Contractor, or
subcontractors, with legitimate interests in the study.
(g) Once the purpose for which the PII was collected or accessed
is fully satisfied, the Contractor shall notify the Department
immediately and seek the Department's instruction and authorization
regarding destruction of the PII in accordance with law.
(h) If the Contractor subcontracts any of the contract work
requiring collection or access to the PII, then the Contractor shall
include this clause (including this paragraph (h)) in any such
subcontract and, further, the Contractor shall ensure that
subcontractors at any tier comply with all terms, conditions, and
obligations imposed on the Contractor herein and under FERPA.
(i) Violation by a subcontractor of any provision set forth in
this clause will be attributed to the Contractor.
(End of Clause)
0
80. Add section 3452.231-71 to read as follows:
3452.231-71 Invitational travel costs.
As prescribed in 3431.205-71, insert a provision substantially the
same as the following:
Invitational Travel Costs (Date)
No invitational travel, which is defined as Official Government
travel conducted by a non-Federal employee in order to provide a
``Direct Service'' (e.g., presenting on a topic, serving as a
facilitator, serving on a Federal Advisory Committee Act, or
advising in an area of expertise to the Government, may be provided
under this contract or in association with this contract unless
consent is provided below. The cost of invitational travel under
this contract not identified in the consent section of this clause
is unallowable unless the Contractor receives written consent from
the Contracting Officer prior to the incurrence of the cost. If the
Contractor wishes to be reimbursed for a cost related to
invitational travel, a request must be in writing at least 21 days
prior to the day that costs would be incurred. The Contractor must
include in its request the following: why the invitational travel
cost is integral to fulfill a Government requirement in the
contract, and the proposed cost that must be in accordance with
Federal Travel Regulations. The lack of a timely response from the
Contracting Officer must not constitute constructive acceptance of
the allowability of the proposed charge.
Consent is hereby given to the Contractor to _______________.
(End of Clause)
0
81. Add section 3452.232-72 to read as follows:
3452.232-72 Limitation of Government's obligation.
As prescribed in 3432.705-2(c), insert the following clause. The
Contracting Officer may vary the 90-day period from 90 to 30 or 60 days
and the 85 percent from 85 to 75 percent. ``Task Order,'' ``contract,''
or other appropriate designation may be substituted for ``CLIN(s)''
wherever that word appears in the clause:
Limitation of Government's Obligation (Date)
Sufficient funds are not presently available to cover the total
price of the CLIN(s) listed in paragraph (l) below. The CLIN(s)
identified in paragraph (l) below are incrementally funded to cover
the identified period of performance. Additional funds are intended
to be allotted to the applicable CLIN(s) by contract modification up
to and including the full price of the entire period of performance.
This notwithstanding, the Government will not be obligated to pay
the Contractor for amounts payable in excess of the amount actually
allotted, nor will the Contractor be obligated to perform in excess
of such amount.
(a) The CLIN(s) in paragraph (l) of this clause is/are
incrementally funded. Paragraph (l) also lists the allotment amount
presently available for payment and allotted to the CLIN(s),
inclusive of any termination costs for the Government's convenience,
and the allotment schedule that provides the last date of Contractor
performance for which it is estimated the allotted amount will
cover. The parties contemplate that the Government may allot
additional funds incrementally to the applicable CLIN(s) under the
contract, up to the full price specified in the contract. The
Contractor agrees to perform work under the applicable CLIN(s) up to
the point at which the total amount paid and payable by the
Government under the contract for the applicable CLIN(s), including
estimated costs in the event of termination of those CLIN(s) for the
Government's convenience, approximates the total amount currently
allotted to such CLIN(s).
(b) Notwithstanding the dates specified in the allotment
schedule in paragraph (l) of this clause, the Contractor shall
notify the Contracting Officer in writing at least ninety (90) days
prior to the date when, in the Contractor's best judgment, the work
will reach the point at which the total amount payable by the
Government, including any cost for termination for the Government's
convenience, will approximate 85 percent of the total amount then
allotted to the contract for performance of the applicable CLIN(s).
The notification will state (1) the estimated date when that point
will be reached, and (2) an estimate of additional funding, if any,
needed to continue performance of applicable CLIN(s) up to the date
in paragraph (l) of this clause, or to a mutually agreed upon
substitute date.
(c) If, after notification pursuant to paragraph (b) of this
clause, additional funds are not allotted by the date identified in
paragraph (l), the date identified in the Contractor's notification,
or by an agreed substitute date, upon the Contractor's written
request, the Contracting Officer may terminate for the Government's
convenience any CLIN(s) for which additional funds have not been
allotted. If the Contractor estimates that the funds available will
allow it to continue to discharge its obligations beyond that date,
it may specify a later date in its request to terminate the
applicable CLIN(s), and the Contracting Officer may terminate such
CLIN(s) on that later date. In no event is the Contractor authorized
to continue work on those CLIN(s) beyond the time when the amount
payable, to include costs of termination for the Government's
convenience, is equal to the funds allotted.
(d) If, solely by reason of failure of the Government to allot
additional funds, by the dates indicated in paragraph (l) of this
clause, in amounts sufficient for timely performance of the CLIN(s)
identified in paragraph (l) of this clause, the Contractor incurs
additional costs or is delayed in the performance of the work under
this contract and if additional funds are allotted, the Contractor
may request an equitable adjustment to the price or prices
(including appropriate target, billing, and ceiling prices, where
applicable) of the applicable CLIN(s), or in the time of delivery,
or both, by written request to the Contacting Officer with
sufficient documentation to support such equitable adjustment.
Failure to agree to any such equitable adjustment hereunder will be
a dispute concerning a question of fact within the meaning of the
clause titled ``Disputes.'' Notwithstanding anything to the contrary
herein, in no event will an equitable adjustment under this
paragraph (d) be due to the Contractor for costs that arise from or
relate to the
[[Page 10235]]
Contractor's breach of the notification obligations in paragraph (b)
of this clause.
(e) Except as required by other provisions of this contract,
specifically citing and stated to be an exception to this clause-
(1) The Government is not obligated to pay for goods or
services, to include reimbursement of costs for termination for the
Government's convenience, in excess of the total amount allotted by
the Government to the CLIN(s) identified in paragraph (l) of this
clause; and
(2) The Contractor is not authorized to continue performance of
the CLIN(s) identified in paragraph (l) of this clause in excess of
the amount allotted by the Government to the applicable CLIN(s).
(3) As used in this clause, the total amount payable by the
Government in the event of termination of applicable CLIN(s) for
convenience includes reasonable costs, profit, and termination
settlement costs for those item(s).
(f) No communication or representation in any form other than in
writing from the Contracting Officer shall affect the amount
allotted by the Government to this contract and applicable CLIN(s).
The Government is not obligated to reimburse the Contractor for any
costs in excess of the total amount allotted by the Government to
the applicable CLIN(s), whether incurred during the course of the
contract or as a result of termination.
(g) The Government may at any time prior to termination allot
additional funds for the performance of the CLIN(s) identified in
paragraph (l) of this clause.
(h) When additional funds are allotted for continued performance
of the CLIN(s) identified in paragraph (l) of this clause, the
parties will agree as to the period of contract performance that
will be covered by the funds. The provisions of this clause will
apply in like manner to the additional allotted funds and agreed
substitute date, and the contract will be modified accordingly.
(i) The termination provisions of this clause do not limit the
rights of the Government to terminate the contract, in whole or in
part, for cause in the event of any breach or default by the
Contractor. The provisions of this clause are limited to the work
and allotment of funds for the CLIN(s) set forth in paragraph (l) of
this clause. This clause no longer applies once the contract is
fully funded except with regard to the rights or obligations of the
parties concerning equitable adjustments negotiated under paragraph
(d) of this clause.
(j) Nothing in this clause affects the right of the Government
to terminate this contract, in whole or in part, for convenience or
cause.
(k) Nothing in this clause shall be construed as authorization
of voluntary services whose acceptance is otherwise prohibited under
31 U.S.C. 1342.
(l) Incremental funds are allotted to the CLIN(s) under this
contract as follows:
------------------------------------------------------------------------
Last date of
CLIN Amount allotted performance
------------------------------------------------------------------------
.....................
------------------------------------------------------------------------
.....................
------------------------------------------------------------------------
.....................
------------------------------------------------------------------------
(End of Clause)
0
82. Add section 3452.233-70 to read as follows:
3452.233-70 Agency level protests.
As prescribed in 3433.103, insert the following clause:
Agency Level Protests (Date)
All protests to the agency must be submitted to the Contracting
Officer. In accordance with FAR 33.103(d)(4), interested parties may
request an independent review at a level above the Contracting
Officer as an alternative to consideration by the Contracting
Officer. If a protest is silent on this matter, consideration and
decision will be made by the Contracting Officer.
(End of Clause)
0
83. Revise section 3452.239-70 to read as follows:
3452.239-70 Internet Protocol version 6 (IPv6).
As prescribed in 3439.701, insert the following clause in all
solicitations and resulting contracts for hardware and software:
Internet Protocol Version 6 (Date)
(a) Any system hardware, software, firmware, or networked
component (voice, video, or data) developed, procured, or acquired
in support or performance of this contract shall be capable of
transmitting, receiving, processing, forwarding, and storing digital
information across system boundaries utilizing the next-generation
internet Protocol (IP) version 6 (IPv6) as defined in revised USGv6
profile (most recent version of NIST Special Publication 500-267B)
and NISTv6 profile (most recent version of NIST Special Publication
500-267A).
(b) Specifically, any new IP product or system developed,
acquired, or produced must--
(1) Provide IPv6 technical capabilities as outlined in the most
recent version of USGv6 Capabilities Table (UCT);
(2) Maintain interoperability with both IPv6 and any existing
IPv4 systems and products; and
(3) Have available Contractor/vendor IPv6 technical support for
development and implementation and fielded product management.
(c) Any exceptions to the use of IPv6 require the agency's CIO
to give advance, written approval.
(End of Clause)
0
84. Revise section 3452.239-71 to read as follows:
3452.239-71 Department information security and privacy requirements.
As prescribed in 3439.702, include the following clause in all
solicitations and contracts.
Department Information Security and Privacy Requirements (Date)
(a) The Contractor shall, at all times, maintain compliance with
the most current version of Department security requirements as set
forth in ``Department Information Security and Privacy
Requirements.'' These requirements are posted at <a href="http://www.ed.gov/fund/contract/about/bsp.html">http://www.ed.gov/fund/contract/about/bsp.html</a>.
(b) The Contractor shall incorporate the substance of this
clause, its terms and requirements, including this paragraph, in all
subcontracts, and require written subcontractor acknowledgement of
the same. Violation by a subcontractor of any provision set forth in
this clause will be attributed to the Contractor.
(c) Failure to comply with this clause, including the embedded
Department Information Security and Privacy Requirements, may result
in a termination of the contract for default or cause.
(d) Performance of this contract [ ] does include [ ] does not
include the following: access to, collection of, or maintenance of
information on behalf of the Department; or Department information
technology (IT) products, systems, or hardware that are (1) used or
operated by the Contractor on behalf of the Department, or (2) used
in the performance of services or the furnishing of products. IT
products, systems, hardware, and services include agency-hosted,
outsourced, and cloud-based solutions, as well as incidental IT
equipment that is acquired by the Contractor to support contract
performance. When ``does include'' is selected, the categorizations
shown below apply:
(1) In accordance with the Federal Information Processing
Standard (FIPS 199), Standards for Security Categorization of
Federal Information and Information Systems, the Information
Security Categorization applicable to each security objective has
been determined to be:
Confidentiality: [ ] Low [ ] Moderate [ ] High
Integrity: [ ] Low [ ] Moderate [ ] High
Availability: [ ] Low [ ] Moderate [ ] High
Overall Risk Level: [ ] Low [ ] Moderate [ ] High
(2) Performance of this contract [ ] does involve [ ] does not
involve Personally Identifiable information (PII) as defined in OMB
A-130 (2016).
(3) Performance of this contract [ ] does involve [ ] does not
involve ``Controlled
[[Page 10236]]
Unclassified Information'' as defined in 32 CFR 2002.4(h).
(End of Clause)
3452.239-72 [Removed]
0
85. Remove section 3452.239-72.
3452.239-73 [Removed]
0
86. Remove section 3452.239-73.
0
87. Revise section 3452.243-70 to read as follows:
3452.243-70 Key personnel.
As prescribed in 3443.107, insert a clause substantially the same
as the following in all solicitations and resultant contracts in which
it will be essential for the Contracting Officer to be notified that a
change of designated key personnel is to take place by the contractor:
Key Personnel (Date)
(a) The personnel designated as key personnel in this contract
are considered to be essential to the work being performed
hereunder. Prior to diverting any of the specified individuals to
other programs, or otherwise substituting any other personnel for
specified personnel, the Contractor shall notify the Contracting
Officer reasonably in advance and submit justification (including
proposed substitutions) in sufficient detail to permit evaluation of
the impact on the contract effort. No diversion or substitution
shall be made by the Contractor without written consent of the
Contracting Officer; provided, that the Contracting Officer may
ratify a diversion or substitution in writing and that ratification
shall constitute the consent of the Contracting Officer required by
this clause. The contract shall be modified to reflect the addition
or deletion of key personnel.
(b) The following personnel have been identified as Key
Personnel in the performance of this contract:
Labor category Name
[Insert category.] [Insert name.]
(End of Clause)
[FR Doc. 2023-00832 Filed 2-15-23; 8:45 am]
BILLING CODE 4000-01-P
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</html>Indexed from Federal Register on February 16, 2023.
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