Rule2023-16918
Department of 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
September 1, 2023
Effective
October 1, 2023
Issuing agencies
Education Department
Abstract
The Secretary modifies 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.
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[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Rules and Regulations]
[Pages 60540-60564]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16918]
[[Page 60539]]
Vol. 88
Friday,
No. 169
September 1, 2023
Part II
Department of Education
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48 CFR Chapter 34
Department of Education Acquisition Regulation; Final Rule
Federal Register / Vol. 88 , No. 169 / Friday, September 1, 2023 /
Rules and Regulations
[[Page 60540]]
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DEPARTMENT OF EDUCATION
48 CFR Chapter 34
[Docket ID ED-2023-OFO-0002]
RIN 1890-AA20
Department of Education Acquisition Regulation
AGENCY: Office of Finance and Operations, Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary modifies 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: These regulations are effective October 1, 2023.
FOR FURTHER INFORMATION CONTACT: April Bolton-Smith, U.S. Department of
Education, 400 Maryland Avenue SW, Room 2C277, Washington, DC 20202-
4331. Telephone: (202) 453-6317. Email: <a href="/cdn-cgi/l/email-protection#551425273c397b173a39213a3b7806383c213d1530317b323a23"><span class="__cf_email__" data-cfemail="86c7f6f4efeaa8c4e9eaf2e9e8abd5ebeff2eec6e3e2a8e1e9f0">[email protected]</span></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: On February 16, 2023, the Secretary
published a notice of proposed rulemaking (NPRM) in the Federal
Register (88 FR 10218) to modify the EDAR. In the preamble to the NPRM,
on pages 10218 through 10224, the Secretary discussed how the proposed
regulations would update and revise aspects of the EDAR regulations
that are out-of-date or redundant with other U.S. Department of
Education (Department) policies and procedures and would accurately
implement the current Federal Acquisition Regulation (FAR) and
Department policies.
Public Comment: In response to the Secretary's invitation in the
NPRM, the Department did not receive any comments within the scope of
the rule; however, as a result of our further review of the proposed
regulations since publication of the NPRM, we have made changes as
follows. Generally, we do not address technical and other minor
changes.
Analysis of Comments and Changes
Comment: None.
Discussion: The NPRM proposed that, under section 3416.505, the
Deputy Director of Contracts and Acquisition Management (CAM) would
serve as the agency head designee for purposes of FAR 16.505(b)(8). In
further reviewing section 3416.505, the Department decided that,
because there are two contracting activities at the Department (CAM and
Federal Student Aid Acquisitions), it would not be appropriate to
designate only one of them for this purpose.
Changes: As a result of our further review, we have updated section
3416.505 to indicate that the task order and delivery-order contract
ombudsman is the competition advocate within each of the two
contracting activities.
Comment: None.
Discussion: The NPRM proposed that the Senior Procurement Executive
be the agency head for purposes of FAR 17.104(b). Upon further review,
the Department decided that, to provide each contracting activity with
the flexibility to modify multi-year contract requirements to fit its
unique needs, the appropriate official for making determinations under
FAR 17.104(b) should be the Head of the Contracting Activity (HCA), not
the Senior Procurement Executive.
Changes: As a result of our further review, we have revised section
3417.104 to identify the HCA as the agency head for purposes of FAR
17.104(b).
Comment: None.
Discussion: Upon further review of proposed sections 3404.710,
3417.207, and 3452.204-70, the Department decided that the contractor,
not the requiring activity, would be best positioned to initially
identify the types of Federal records that it would receive, create,
work with, or otherwise handle during the course of contract
performance, because the contractor would know what records it would
plan to receive, create, work with, or otherwise handle as part of its
proposal. Given the importance of knowing what records the contractor
will receive, create, and work with during the course of contract
performance, the Department determined that this information is needed
as close to start of contract performance as possible, and that the
requiring activity must still ensure the accuracy and completeness of
the records inventory and, if necessary, make unilateral changes to
ensure that all records are identified and captured by the records
inventory.
Changes: As a result of our further review, the Department has
revised section 3404.710 to remove paragraph (a), which required the
contracting officer to obtain a records inventory from the requiring
activity. The Department also removed paragraph (c) of section
3417.207, which prohibited a contracting officer from exercising an
option until receiving a current records inventory from the requiring
activity. Finally, the Department revised part C.4.(a)-(c) of the
records management contract clause in section 3452.204-70. These
revisions reflect that the contractor is required to provide the
records inventory as a contract deliverable 60 business days after
award, and the Department will accept or reject the records inventory
within 60 business days after receipt. Additionally, the contractor
must provide a revised records inventory to the Department within 5
business days after receiving, creating, or maintaining a record series
or system that is not currently included in the inventory. The
Department will have 60 business days to accept or reject the revised
the records inventory. Finally, the revisions permit the Department to
review and update the records inventory as needed and to provide a
revised inventory to the contractor.
Comment: None.
Discussion: The NPRM proposed in section 3452.239-71 that the
contractor ``at all times, maintain compliance with the most current
version of the Department security requirements'' set forth in a
separate document titled ``Department Information Security and Privacy
Requirements.'' Upon further review of this section, the Department
decided to include a notice requirement to ensure that a contractor is
aware of changes to the security requirements. Additionally, because
changes in requirements could impact costs and schedules, the
Department decided to include a formal process with timelines for a
contractor to request an equitable adjustment to the contract price or
delivery schedule.
Changes: As a result of our further review, the Department has
revised section 3452.239-71 to include a requirement that the
Department notify the contractor when the ``Department Information
Security and Privacy Requirements'' document has been updated.
Additionally, the Department revised section 3452.239-71 to require the
contractor to submit a request for an equitable adjustment to the
contract price or delivery schedule within 30 days from the date of
receiving notice of the change to the ``Department Information Security
and Privacy Requirements'' document, if any such change causes a
material increase or decrease in the cost of, or the time required for,
performance of any part of the work under a contract.
[[Page 60541]]
Executive Orders 12866, 13563, and 14094
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 the
Office of Management and Budget (OMB). Section 3(f) of Executive Order
12866, as amended by Executive Order 14094, 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 $200 million or more
(adjusted every 3 years by the Administrator of Office of Information
and Regulatory Affairs (OIRA) for changes in gross domestic product);
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or Tribal governments
or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise legal or policy issues for which centralized review would
meaningfully further the President's priorities or the principles
stated in the Executive Order, as specifically authorized in a timely
manner by the Administrator of OIRA in each case.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866
(as amended by Executive Order 14094).
We have also reviewed these 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.
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 final 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 final 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, territorial, and Tribal governments in the
exercise of their governmental functions.
In accordance with these Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs associated
with this regulatory action are those resulting from statutory
requirements and those we have determined as necessary for
administering the Department's programs and activities.
Regulatory Flexibility Act Certification
Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq., as
amended by the Small Business Regulatory Flexibility Act of 1996),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions), unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. The Regulatory Flexibility Act
requires Federal agencies to provide a statement of the factual basis
for certifying that a rule will not have a significant impact on a
substantial number of small entities. Pursuant to the Regulatory
Flexibility Act, the Secretary certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
The rule updates the EDAR; it does not directly regulate any small
entities. As a result, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act of 1995
These regulations do not contain any information collection
requirements.
Intergovernmental Review
The EDAR is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Assessment of Educational Impact
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
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.
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.
[[Page 60542]]
List of Subjects
48 CFR Parts 3401, 3402, 3404, 3405, 3406, 3407, 3408, 3409, 3412,
3413, 3414, 3415, 3416, 3417, 3422, 3424, 3425, 3427, 3428, 3430, 3431,
3437, 3439, 3445, 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.
Dated: August 3, 2023.
Miguel A. Cardona,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends title
48 of the Code of Federal Regulations by revising chapter 34 to read as
follows:
CHAPTER 34--DEPARTMENT OF EDUCATION ACQUISITION REGULATION
SUBCHAPTER A--GENERAL
PART 3401 ED ACQUISITION REGULATION SYSTEM
PART 3402 DEFINITIONS OF WORDS AND TERMS
PART 3403 IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
PART 3404 ADMINISTRATIVE AND INFORMATION MATTERS
SUBCHAPTER B--ACQUISITION PLANNING
PART 3405 PUBLICIZING CONTRACT ACTIONS
PART 3406 COMPETITION REQUIREMENTS
PART 3407 ACQUISITION PLANNING
PART 3408 REQUIRED SOURCES OF SUPPLIES AND SERVICES.
PART 3409 CONTRACTOR QUALIFICATIONS
PART 3412 ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 3413 SIMPLIFIED ACQUISITION PROCEDURES
PART 3414 SEALED BIDDING
PART 3415 CONTRACTING BY NEGOTIATION
PART 3416 TYPES OF CONTRACTS
PART 3417 SPECIAL CONTRACTING METHODS
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 3419 SMALL BUSINESS PROGRAMS
PART 3422 APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 3424 PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION.
PART 3425 FOREIGN ACQUISITION
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 3427 PATENTS, DATA, AND COPYRIGHTS
PART 3428 BONDS AND INSURANCE
PART 3430 COST ACCOUNTING STANDARDS ADMINISTRATION
PART 3431 CONTRACT COST PRINCIPLES AND PROCEDURES
PART 3432 CONTRACT FINANCING
PART 3433 PROTESTS, DISPUTES, AND APPEALS
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 3437 SERVICE CONTRACTING
PART 3439 ACQUISITION OF INFORMATION TECHNOLOGY
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 3442 CONTRACT ADMINISTRATION AND AUDIT SERVICES
PART 3443 CONTRACT MODIFICATIONS
PART 3445 GOVERNMENT PROPERTY
PART 3447 TRANSPORTATION
SUBCHAPTER H--CLAUSES AND FORMS
PART 3452 SOLICITATION PROVISIONS AND CONTRACT CLAUSES
SUBCHAPTER A--GENERAL
PART 3401--ED ACQUISITION REGULATION SYSTEM
Sec.
3401.000 Scope of part.
Subpart 3401.1--Purpose, Authority, Issuance
3401.104 Applicability.
Subpart 3401.3--Agency Acquisition Regulations
3401.303 Publication and codification.
Subpart 3401.4--Deviations
3401.403 Individual deviations.
3401.404 Class deviations.
Subpart 3401.6--Career Development, Contracting Authority, and
Responsibilities
3401.601 General.
3401.602-3 Ratification of unauthorized commitments.
3401.604-70 Contract clause.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
3401.000 Scope of part.
This part establishes a system of Department of Education
(Department) acquisition regulations, referred to as the 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).
Subpart 3401.1--Purpose, Authority, Issuance
3401.104 Applicability.
(a) The FAR and the EDAR apply to all Department contracts, as
defined in FAR part 2, except where expressly excluded. 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 Agency, including its sub-
organizations, and contractors or prospective contractors.
(b) The statue at 20 U.S.C. 1018a provides the Performance-Based
Organization (PBO) with procurement authority and flexibility
associated with sections (a) through (l) of the statute.
Subpart 3401.3--Agency Acquisition Regulations
3401.303 Publication and codification.
(a) The EDAR is issued as chapter 34 of title 48 of the CFR.
(1) The FAR numbering illustrations at FAR 1.105-2 apply to the
EDAR.
(2) The EDAR numbering system corresponds with the FAR numbering
system. An EDAR citation will include the prefix ``34'' prior to its
corresponding FAR part citation; e.g., FAR 25.108-2 would have
corresponding EDAR text numbered as EDAR 3425.108-2.
(3) Supplementary material for which there is no counterpart in the
FAR will be codified with a suffix beginning with ``70'' or, in cases
of successive sections and subsections, will be numbered in the 70
series (i.e., 71-79). These supplementing sections and subsections will
appear to the closest corresponding FAR citation; e.g., FAR subpart
16.4 may be augmented in the EDAR by citing EDAR 3416.470 and FAR
16.403 may be augmented in the EDAR by citing EDAR 3416.403-70. (Note:
These citations are for illustrative purposes only and may not actually
appear in the published EDAR). For example:
Table 1 To Paragraph (a)(3)
------------------------------------------------------------------------
FAR Is implemented as Is augmented as
------------------------------------------------------------------------
15............................ 3415............... 3415.70
15.1.......................... 3415.1............. 3415.170
[[Page 60543]]
15.101........................ 3415.101........... 3415.101-70
15.101-1...................... 3415.101-1......... 3415.101-170
------------------------------------------------------------------------
(c) Guidance that is unique to an organization with Head of the
Contracting Activity (HCA) authority contains that activity's acronym
directly preceding the cite. The following activity acronyms apply:
FSA--Federal Student Aid.
Subpart 3401.4--Deviations
3401.403 Individual deviations.
An individual deviation from the FAR or the EDAR must be approved
by the Senior Procurement Executive (SPE).
3401.404 Class deviations.
A class deviation from the FAR or the EDAR must be approved by the
Chief Acquisition Officer (CAO).
Subpart 3401.6--Career Development, Contracting Authority, and
Responsibilities
3401.601 General.
(a) Contracting authority is vested in the Secretary. The Secretary
has delegated this authority to the CAO. The Secretary has also
delegated contracting authority to the SPE, giving the SPE broad
authority to perform functions dealing with the management direction of
the entire Department's procurement system, including implementation of
its unique procurement policies, regulations, and standards.
Limitations to the extent of this authority and successive delegations
are set forth in the respective memorandums of delegations.
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.
3401.604-70 Contract clause.
Contracting officers must insert a clause substantially the same as
the clause at 3452.201-70 (Contracting Officer's Representative (COR)),
in all solicitations and contracts for which a COR will be (or is)
appointed.
PART 3402--DEFINITIONS OF WORDS AND TERMS
Subpart 3402.1--Definitions
Sec.
3402.101 Definitions.
Subpart 3402.2--Definitions Clause
3402.201 Contract clause.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3402.1--Definitions
3402.101 Definitions.
As used in this chapter--
Chief of the Contracting Office or COCO means an official serving
in the contracting activity (Contracts and Acquisition Management (CAM)
or 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.
Department or ED means the United States Department of Education.
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, Federal Student Aid Acquisitions, 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.
Performance-Based Organization or PBO is the office within the
Department that is mandated by Public Law 105-244 to carry out Federal
student assistance or aid programs and report to Congress on an annual
basis. It may also be referred to as ``Federal Student Aid.''
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 written requirement or statement of need for services
required by a contract.
Senior Procurement Executive or SPE means the single agency
official appointed as such by the head of the agency and delegated
broad responsibility for acquisition functions, including issuing
agency acquisition policy and reporting on acquisitions agency-wide.
The SPE also acts as the official one level above the contracting
officer when the HCA is acting as a contracting officer.
Subpart 3402.2--Definitions Clause
3402.201 Contract clause.
The contracting officer must insert the clause at 3452.202-1
(Definitions--Department of Education) in all solicitations and
contracts in which the clause at FAR 52.202-1 is required.
PART 3403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 3403.1--Safeguards
Sec.
3403.104 Procurement integrity.
3403.104-7 Violations or possible violations.
Subpart 3403.2--Contractor Gratuities to Government Personnel
3403.203 Reporting suspected violations of the Gratuities clause.
3403.204 Treatment of violations.
Subpart 3403.3--Reports of Suspected Antitrust Violations
3403.301 General.
Subpart 3403.4--Contingent Fees
3403.405 Misrepresentation or violations of the covenant against
contingent fees.
Subpart 3403.6--Contracts with Government Employees or Organizations
Owned or Controlled by Them
3403.602 Exceptions.
Subpart 3403.7--Voiding and Rescinding Contracts
3403.704 Policy.
3403.705 Procedures.
Subpart 3403.9--Whistleblower Protections for Contractor Employees
3403.905 Procedures for investigating complaints.
[[Page 60544]]
3403.906 Remedies.
Authority: 5 U.S.C. 301.
Subpart 3403.1--Safeguards
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).
Subpart 3403.2--Contractor Gratuities to Government Personnel
3403.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations of the Gratuities clause at FAR 52.203-3
must be reported to the HCA in writing detailing the circumstances.
(b) The HCA evaluates the report with the assistance of the
Designated Agency Ethics Officer. If the HCA determines that a
violation may have occurred, the HCA refers the report to the SPE for
disposition.
Subpart 3403.3--Reports of Suspected Antitrust Violations
3403.204 Treatment of violations.
(a) The SPE is the agency head's designee for purposes of FAR
3.204.
Subpart 3403.3--Reports of Suspected Antitrust Violations
3403.301 General.
(b) Any Departmental personnel who have evidence of a suspected
antitrust violation in an acquisition must--
(1) Report that evidence through the HCA to the Office of the
General Counsel for referral to the Attorney General; and
(2) Provide a copy of that evidence to the SPE.
Subpart 3403.4--Contingent Fees
3403.405 Misrepresentation or violations of the covenant against
contingent fees.
Any Departmental personnel who suspect or have evidence of
attempted or actual exercise of improper influence, misrepresentation
of a contingent fee arrangement, or other violation of the Covenant
Against Contingent Fees, must report the matter promptly in accordance
with the procedures in 3403.203.
Subpart 3403.6--Contracts With Government Employees or
Organizations Owned or Controlled by Them
3403.602 Exceptions.
The SPE is the agency head's designee for purposes of FAR 3.602.
Subpart 3403.7--Voiding or Rescinding Contracts
3403.704 Policy.
(a) The Senior Procurement Executive (SPE) is the agency head's
designee for the purpose of FAR 3.704.
3403.705 Procedures.
(a) Reporting. The SPE is the agency's head designed for the
purposes of FAR 3.705.
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 purposes of FAR 3.905.
3403.906 Remedies.
(a) The SPE is the agency head's designee for the purposes of FAR
3.906.
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 Contracting 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. 12(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, includes 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,
Department facilities/space, and/or perform duties in a school or in a
location where children are present.
Subpart 3404.7--Contractor Records Retention
3404.710 Contracting officer records management responsibilities.
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 Contact 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
[[Page 60545]]
has transferred all Federal records that 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.
SUBCHAPTER B--ACQUISITION PLANNING
PART 3405--PUBLICIZING CONTRACT ACTIONS
Subpart 3405.2--Synopses of Proposed Contract Actions
Sec.
3405.202 Exceptions.
3405.203 Publicizing and response time.
3405.205 Special situations.
3405.207 Preparation and transmittal of synopses.
3405.270 Notices to perform market surveys.
Subpart 3405.5--Paid Advertisements
3405.502 Authority.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3405.2--Synopses of Proposed Contract Actions
3405.202 Exceptions.
(a)(15) FSA--Issuance of a synopsis is not required when the firm
to be solicited has previously provided a module for the system under a
contract that contained cost, schedule, and performance goals and the
contractor met those goals.
3405.203 Publicizing and response time.
(c) FSA--Notwithstanding other provisions of the FAR, a bid or
proposal due date of less than 30 days is permitted after issuance of a
synopsis for acquisitions for noncommercial items. However, if time
permits, a bid or proposal due date that affords potential offerors
reasonable time to respond and fosters quality submissions should be
established.
3405.205 Special situations.
(g) FSA--Module of a previously awarded system. Federal Student Aid
must satisfy the publication requirements for sole source and
competitive awards for a module of a previously awarded system by
publishing a notice of intent on the governmentwide point of entry, not
less than 30 days before issuing a solicitation. This notice is not
required if a contractor who is to be solicited to submit an offer
previously provided a module for the system under a contract that
contained cost, schedule, and performance goals, and the contractor met
those goals.
3405.207 Preparation and transmittal of synopses.
(c) General format for ``Description''. FSA--In phase one of a two-
phase source selection as described in 3415.302-70, the contracting
officer must publish a notice in accordance with FAR subpart 5.2,
except that the notice must include only the following:
(1) Notification that the procurement will be conducted using the
specific procedures included in 3415.302-70.
(2) A general notice of the scope or purpose of the procurement
that provides sufficient information for sources to make informed
business decisions regarding whether to participate in the procurement.
(3) A description of the basis on which potential sources are to be
selected to submit offers in the second phase.
(4) A description of the information that is to be required to be
submitted if the request for information is made separate from the
notice.
(5) Any other information that the contracting officer deems is
appropriate.
(g) Modular contracting. FSA--When modular contracting authority is
being utilized, the notice must invite comments and support if it is
believed that modular contracting is not suited for the requirement
being procured.
3405.270 Notices to perform market surveys.
(a) If a sole source contract is anticipated, the issuance of a
notice of a proposed contract action that is detailed enough to permit
the submission of meaningful responses and the subsequent evaluation of
the responses by the Federal Government constitutes an acceptable
market survey.
(b) The notice must include--
(1) A clear statement of the supplies or services to be procured;
(2) Any capabilities or experience required of a contractor and any
other factor relevant to those requirements;
(3) A statement that all responsible sources submitting a proposal,
bid, or quotation must be considered;
(4) Name, business address, and phone number of the Contracting
Officer; and
(5) Justification for a sole source and the identity of that
source.
Subpart 3405.5--Paid Advertisements
3405.502 Authority.
Authority to approve publication of paid advertisements in
newspapers is delegated to the HCA.
PART 3406--COMPETITION REQUIREMENTS
Sec.
3406.001 Applicability.
Subpart 3406.3--Other Than Full and Open Competition
3406.302-2 Unusual and compelling urgency.
3406.302-5 Authorized or required by statute.
Subpart 3406.5--Advocates for Competition
3406.501 Requirement.
Authority: 5 U.S.C. 301; 41 U.S.C. 418(a) and (b); and 20
U.S.C. 1018a.
3406.001 Applicability.
(b) FSA--This part does not apply to proposed contracts and
contracts awarded based on other than full and open competition when
the conditions for successive systems modules set forth in 3417.70 are
utilized.
Subpart 3406.3--Other than Full and Open Competition
3406.302-2 Unusual and compelling urgency.
(d)(1)(ii) The 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).
3406.302-5 Authorized or required by statute.
(a) Authority. (1) Citations: 20 U.S.C. 1018a.
(2) Noncompetitive awards of successive modules for systems are
permitted when the conditions set forth in 3417.70 are met.
Subpart 3406.5--Advocates for Competition
3406.501 Requirement.
The Competition Advocate for the Department is the Deputy Director,
Contracts and Acquisitions Management.
PART 3407--ACQUISITION PLANNING
Subpart 3407.1--Acquisition Plans
Sec.
3407.103 Agency-head responsibilities.
Authority: 5 U.S.C. 301.
[[Page 60546]]
Subpart 3407.1--Acquisition Plans
3407.103 Agency-head responsibilities.
The SPE is the agency head's designee for the purposes of FAR
7.103.
PART 3408--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 3408.8--Acquisition of Printing and Related Supplies
Sec.
3408.871 Paperwork reduction.
Authority: 5 U.S.C. 301, unless otherwise noted.
Subpart 3408.8--Acquisition of Printing and Related Supplies
3408.871 Paperwork reduction.
The contracting officer must insert the clause at 3452.208-72
(Paperwork Reduction Act) in all solicitations and contracts in which
the contractor will develop forms or documents for public use.
PART 3409--CONTRACTOR QUALIFICATIONS
Subpart 3409.4--Debarment, Suspension, and Ineligibility
Sec.
3409.400 Scope of subpart.
3409.401 Applicability.
3409.403 Definitions.
3409.406 Debarment.
3409.406-3 Procedures.
3409.407 Suspension.
3409.407-3 Procedures.
Subpart 3409.5--Organizational and Consultant Conflicts of Interest
3409.502 Applicability.
3409.503 Waiver.
3409.506 Procedures.
3409.507 Solicitation provision and contract clause.
3409.507-1 Solicitation provision.
3409.507-2 Contract clause.
Authority: 5 U.S.C. 301.
Subpart 3409.4--Debarment, Suspension, and Ineligibility
3409.400 Scope of subpart.
This subpart implements FAR subpart 9.4 by detailing policies and
procedures governing the debarment and suspension of organizations and
individuals from participating in ED contracts and subcontracts.
3409.401 Applicability.
This subpart applies to all procurement debarment and suspension
actions initiated by ED. This subpart does not apply to nonprocurement
debarment and suspension.
3409.403 Definitions.
The SPE is designated as the debarring official and suspending
official as defined in FAR 9.403 and is designated as the agency
official authorized to make the decisions required in FAR 9.406 and
9.407.
3409.406 Debarment.
3409.406-3 Procedures.
(b) Decisionmaking process. (1) Contractors proposed for debarment
may submit, in person, in writing, or through a representative,
information and argument in opposition to the proposed debarment. The
contractor must submit additional information within 30 days of receipt
of the notice of proposal to debar, as described in FAR 9.406-3(c).
(2) In actions not based upon a conviction or civil judgment, if
the contractor's submission in opposition raises a genuine dispute over
facts material to the proposed debarment, the contractor may request a
fact-finding conference. If the Debarring Official determines that
there is a genuine dispute of material fact, the Debarring Official
will conduct fact-finding and base the decision in accordance with FAR
9.406-3(b)(2) and (d) through (f).
3409.407 Suspension.
3409.407-3 Procedures.
(b) Decisionmaking process. (1) Contractors suspended in accordance
with FAR 9.407 may submit, in person, in writing, or through a
representative, information and argument in opposition to the
suspension. The contractor must submit this information and argument
within 30 days of receipt of the notice of suspension, as described in
FAR 9.407-3(c).
(2) In actions not based upon an indictment, if the contractor's
submission in opposition raises a genuine dispute over facts material
to the suspension and if no determination has been made, on the basis
of Department of Justice advice, that substantial interests of the
Government in pending or contemplated legal proceedings based on the
same facts as the suspension would be prejudiced, the contractor may
request a fact-finding conference. The Suspending Official will conduct
fact-finding and base the decision in accordance with FAR 9.407-3(b)(2)
and (d) and (e).
Subpart 3409.5--Organizational and Consultant Conflicts of Interest
3409.502 Applicability.
This subpart applies to all ED contracts except contracts with
other Federal agencies. However, this subpart applies to contracts with
the Small Business Administration (SBA) under the 8(a) program.
3409.503 Waiver.
The HCA is designated as the official who may waive any general
rule or procedure of FAR subpart 9.5 or of this subpart.
3409.506 Procedures.
(a) If the effects of a potential or actual conflict of interest
cannot be avoided, neutralized, or mitigated before award, the
prospective contractor is not eligible for that award. If a potential
or actual conflict of interest is identified after award and the
effects cannot be avoided, neutralized, or mitigated, ED will terminate
the contract unless the HCA deems continued performance to be in the
best interest of the Federal Government.
(b) The HCA is designated as the official to conduct reviews and
make final decisions under FAR 9.506(b) and (c).
3409.507 Solicitation provision and contract clause.
3409.507-1 Solicitation provision.
The contracting officer must insert the provision in 3452.209-70
(Conflict of interest certification) in all solicitations for services
above the simplified acquisition threshold.
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.
PART 3412--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
SERVICES
Subpart 3412.2--Special Requirements for the Acquisition of Commercial
Products and Commercial Services
Sec.
3412.203 Procedures for solicitation, evaluation, and award.
Subpart 3412.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Products and Commercial Services
3412.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
3412.302 Tailoring of provisions and clauses for the acquisition of
commercial products and commercial services.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
[[Page 60547]]
Subpart 3412.2--Special Requirements for the Acquisition of
Commercial Products and Commercial Services
3412.203 Procedures for solicitation, evaluation, and award.
As specified in 3413.003, simplified acquisition procedures for
commercial products and commercial services may be used without regard
to any dollar or timeframe limitations described in FAR subpart 13.5
when acquired by the FSA and used for its purposes.
Subpart 3412.3--Solicitation Provisions and Contract Clauses for
the Acquisition of Commercial Products and Commercial Services
3412.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
(f)(1) The clause at 3452.224-70 has been authorized for inclusion
in acquisitions of commercial products and commercial services. Refer
to 3424.70 for provisions related to the use of this clause.
(2) [Reserved]
3412.302 Tailoring of provisions and clauses for the acquisition of
commercial products and commercial services.
The HCA is authorized to approve waivers in accordance with FAR
12.302(c). The approved waiver may be either for an individual contract
or for a class of contracts for the specific item. The approved waiver
and supporting documentation must be incorporated into the contract
file.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 3413--SIMPLIFIED ACQUISITION PROCEDURES
Sec.
3413.000 Scope of part.
3413.003 Policy.
Subpart 3413.3--Simplified Acquisition Methods
3413.303 Blanket purchase agreements (BPAs).
3413.303-5 Purchases under BPAs.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
3413.000 Scope of part.
3413.003 Policy.
(c)(1)(iii) FSA may use simplified acquisition procedures for
commercial items without regard to any dollar or time frame limitations
described in FAR subpart 13.5.
(iv) FSA may use simplified acquisition procedures for non-
commercial items up to $1,000,000 when the acquisition is set aside for
small businesses, pursuant to 3419.502.
Subpart 3413.3--Simplified Acquisition Methods
3413.303 Blanket purchase agreements (BPAs).
3413.303-5 Purchases under BPAs.
(b) Individual purchases under blanket purchase agreements for
commercial items may exceed the simplified acquisition threshold but
shall not exceed the threshold for the test program for certain
commercial items in FAR 13.500(a).
PART 3414--SEALED BIDDING
Subpart 3414.4--Opening of Bids and Award of Contract
Sec.
3414.407 Mistakes in bids.
3414.407-3 Other mistakes disclosed before award.
Authority: 5 U.S.C. 301.
Subpart 3414.4--Opening of Bids and Award of Contract
3414.407 Mistakes in bids.
3414.407-3 Other mistakes disclosed before award.
Authority is delegated to the HCA to make determinations under FAR
14.407-3(a) through (d).
PART 3415--CONTRACTING BY NEGOTIATION
Subpart 3415.2--Solicitation and Receipt of Proposals and Information
Sec.
3415.209 Solicitation provisions and contract clauses.
Subpart 3415.3--Source Selection
3415.302 Source selection objective.
3415.302-70 Two-phase source selection.
Subpart 3415.6--Unsolicited Proposals
3415.605 Content of unsolicited proposals.
3415.606 Agency procedures.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3415.2--Solicitation and Receipt of Proposals and
Information
3415.209 Solicitation provisions and contract clauses.
(a) The Freedom of Information Act (FOIA), 5 U.S.C. 552, may
require ED to release data contained in an offeror's proposal even if
the offeror has identified the data as restricted in accordance with
the provision in FAR 52.215-1(e). The solicitation provision in
3452.215-70 (Release of restricted data) informs offerors that ED is
required to consider release of restricted data under FOIA and
Executive Order 12600.
(b) The contracting officer must insert the provision in 3452.215-
70, in all solicitations that include a reference to FAR 52.215-1
(Instructions to Offerors--Competitive Acquisitions).
Subpart 3415.3--Source Selection
3415.302 Source selection objective.
3415.302-70 Two-phase source selection.
(a) Use. FSA may utilize a two-phase process to solicit offers and
select a source for award. The contracting officer can choose to use
this optional method of solicitation when deemed beneficial to the FSA
in meeting its needs as a PBO.
(b) Phase one--(1) Publicizing. The contracting officer must
publish a notice in accordance with FAR subpart 5.2, except that the
notice must include limited information as specified in 3405.207.
(2) Information submitted by offerors. Each offeror must submit
basic information such as the offeror's qualifications, the proposed
conceptual approach, costs likely to be associated with the approach,
and past performance data, together with any additional information
requested by the contracting officer.
(3) Selection for participating in second phase. The contracting
officer must select the offerors that are eligible to participate in
the second phase of the process. The contracting officer must limit the
number of the selected offerors to the number of sources that the
contracting officer determines is appropriate and in the best interests
of the Federal Government.
(c) Phase two. (1) The contracting officer must conduct the second
phase of the source selection consistent with FAR subparts 15.2 and
15.3, except as provided by 3405.207.
(2) Only sources selected in the first phase will be eligible to
participate in the second phase.
Subpart 3415.6--Unsolicited Proposals
3415.605 Content of unsolicited proposals.
(d) Each unsolicited proposal must contain the following
certification:
UNSOLICITED PROPOSAL CERTIFICATION BY OFFEROR
This is to certify, to the best of my knowledge and belief,
that--
a. This proposal has not been prepared under Federal government
supervision;
b. The methods and approaches stated in the proposal were
developed by this offeror;
c. Any contact with employees of the Department of Education has
been within the
[[Page 60548]]
limits of appropriate advance guidance set forth in FAR 15.604; and
d. No prior commitments were received from Departmental
employees regarding acceptance of this proposal.
Date:
-----------------------------------------------------------------------
Organization:
-----------------------------------------------------------------------
Name:
-----------------------------------------------------------------------
Title:
-----------------------------------------------------------------------
(This certification must be signed by a responsible person
authorized to enter into contracts on behalf of the organization.)
3415.606 Agency procedures.
(b)(1) The HCA or designee is the contact point to coordinate the
receipt, control, and handling of unsolicited proposals.
(2) Offerors must direct unsolicited proposals to the HCA.
PART 3416--TYPES OF CONTRACTS
Subpart 3416.3--Cost-Reimbursement Contracts
Sec.
3416.303 Cost-sharing contracts.
3416.307 Contract clauses.
Subpart 3416.4--Incentive Contracts
3416.402 Application of predetermined, formula-type incentives.
3416.402-2 Performance incentives.
3416.470 Award-term contracting.
Subpart 3416.5--Indefinite-Delivery Contracts
3416.505 Ordering.
Subpart 3416.6--Time-and-Materials, Labor-Hour, and Letter Contracts
3416.603 Letter contracts.
3416.603-3 Limitations.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3416.3--Cost-Reimbursement Contracts
3416.303 Cost-sharing contracts.
(b) Application. Costs that are not reimbursed under a cost-sharing
contract may not be charged to the Federal Government under any other
grant, contract, cooperative agreement, or other arrangement.
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.
Subpart 3416.4--Incentive Contracts
3416.402 Application of predetermined, formula-type incentives.
3416.402-2 Performance incentives.
(b) Award-term contracting may be used for performance-based
contracts or task orders. See 3416.470 for the definition of award-term
contracting and implementation guidelines.
3416.470 Award-term contracting.
(a) Definition. Award-term contracting is a method, based upon a
pre-determined plan in the contract, to extend the contract term for
superior performance and to reduce the contract term for substandard or
poor performance.
(b) Applicability. A Contracting Officer may authorize use of an
award-term incentive contract for acquisitions where the quality of
contractor performance is of a critical or highly important nature. The
basic contract term may be extended on the basis of the Federal
Government's determination of the excellence of the contractor's
performance. Additional periods of performance, which are referred to
in this section as ``award terms,'' are available for possible award to
the contractor. As award term(s) are awarded, each additional period of
performance will immediately follow the period of performance for which
the award term was granted. The contract may end at the base period of
performance if the Federal Government determines that the contractor's
performance does not reflect a level of performance as described in the
award-term plan. Award-term periods may only be earned based on the
evaluated quality of the performance of the contractor. Meeting the
terms of the contract is not justification to award an award-term
period. The use of an award-term plan does not exempt the contract from
the requirements of FAR 17.207, with respect to performing due
diligence prior to extending a contract term.
(c) Approvals. The Contracting Officer must justify the use of an
award-term incentive contract in writing. The award-term plan approving
official will be appointed by the HCA.
(d) Disputes. The Federal Government unilaterally makes all
decisions regarding award-term evaluations, points, methodology used to
calculate points, and the degree of the contractor's success.
(e) Award-term limitations. (1) Award periods may be earned during
the base period of performance and each option period, except the last
option period. Award-term periods may not be earned during the final
option year of any contract.
(2) Award-term periods may not exceed twelve months.
(3) The potential award-term periods will be priced, evaluated, and
considered in the initial contract selection process.
(f) Implementation of extensions or reduced contract terms. (1) An
award term is contingent upon a continuing need for the supplies or
services and the availability of funds. Award terms may be cancelled
prior to the start of the period of performance at no cost to the
Federal Government if there is not a continued need or available
funding.
(2) The extension or reduction of the contract term is affected by
a bilateral contract modification.
(3) Award-term periods occur after the period for which the award
term was granted. Award-term periods effectively move option periods to
later contract performance periods.
(4) Contractors have the right to decline the award of an award-
term period. A contractor loses its ability to earn additional award
terms if an earned Award-Term Period is declined.
(5) Changes to the contract award-term plan must be mutually agreed
upon.
(g) Clause. Insert a clause substantially the same as the clause at
3452.216-71 (Award-term) in all solicitations and resulting contracts
where an award-term incentive contract is anticipated.
Subpart 3416.5--Indefinite-Delivery Contracts
3416.505 Ordering.
(b)(8) Task order and delivery-order ombudsman. The competition
advocate at each contracting activity shall act as the task order and
delivery-order contract ombudsman for purposes of FAR 16.505(b)(8).
Subpart 3416.6--Time-and-Materials, Labor-Hour, and Letter
Contracts
3416.603 Letter contracts.
3416.603-3 Limitations.
If the HCA is to sign a letter contract as the contracting officer,
the SPE signs the written determination under FAR 16.603-3.
[[Page 60549]]
PART 3417--SPECIAL CONTRACTING METHODS
Subpart 3417.1--Multiyear Contracting
Sec.
3417.104 General.
Subpart 3417.2--Options
3417.204 Contracts.
3417.207 Exercise of options.
Subpart 3417.5--Interagency Acquisitions
3417.501 General.
Subpart 3417.70--Modular Contracting
3417.700 Modular contracting.
Authority: 31 U.S.C. 1535 and 20 U.S.C. 1018a.
Subpart 3417.1--Multiyear Contracting
3417.104 General.
(b) The Head of the Contracting Activity (HCA) is the agency head
for the purposes of FAR 17.104(b).
Subpart 3417.2--Options
3417.204 Contracts.
(e) Except as otherwise provided by law, contract periods that
exceed the five-year limitation specified in FAR 17.204(e) must be
approved by--
(1) The HCA for individual contracts; or
(2) The SPE for classes of contracts.
3417.207 Exercise of options.
(f)(2) The Federal Government may accept price reductions offered
by contractors at any time during contract performance. Acceptance of
price reductions offered by contractors will not be considered
renegotiations as identified in this subpart if they were not initiated
or requested by the Federal Government.
(h) If a contract provision allows an option to be exercised within
a specified time frame after funds become available, it must also
specify that the date on which funds ``become available'' is the actual
date funds become available to the contracting officer for obligation.
Subpart 3417.5--Interagency Acquisitions
3417.501 General.
No other Federal department or agency may purchase property or
services under contracts established or administered by FSA unless the
purchase is approved by SPE for the requesting Federal department or
agency.
Subpart 3417.70--Modular Contracting
3417.700 Modular contracting.
(a) FSA may incrementally conduct successive procurements of
modules of overall systems. Each module must be useful in its own right
or useful in combination with the earlier procurement modules.
Successive modules may be procured on a sole source basis under the
following circumstances:
(1) Competitive procedures are used for awarding the contract for
the first system module; and
(2) The solicitation for the first module included the following:
(i) A general description of the entire system that was sufficient
to provide potential offerors with reasonable notice of the general
scope of future modules;
(ii) Other sufficient information to enable offerors to make
informed business decisions to submit offers for the first module; and
(iii) A statement that procedures, i.e., the sole source awarding
of follow-on modules, could be used for the subsequent awards.
(b) [Reserved]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 3419--SMALL BUSINESS PROGRAMS
Subpart 3419.2--Policies
Sec.
3419.201 General policy.
3419.201-70 Office of Small and Disadvantaged Business Utilization
(OSDBU).
Subpart 3419.5--Small Business Total Set-Asides, Partial Set-Asides,
and Reserves
3419.502 Setting aside acquisitions.
3419.502-8 Rejecting Small Business Administrative recommendations.
3419.502-70 Methods of conducting set-asides.
Subpart 3419.8--Contracting With the Small Business Administration (the
8(a) Program)
3419.810 SBA appeals.
3419.812 Contract administration.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3419.2--Policies
3419.201 General policy.
3419.201-70 Office of Small and Disadvantaged Business Utilization
(OSDBU).
The Office of Small and Disadvantaged Business Utilization (OSDBU)
is responsible for facilitating 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
ED's small business program.
Subpart 3419.5--Small Business Total Set-Asides, Partial Set-
Asides, and Reserves
3419.502 Setting aside acquisitions.
3419.502-8 Rejecting Small Business Administration recommendations.
(d) The SPE is the agency head for the purposes of FAR 19.502-8.
3419.502-70 Methods of conducting set-asides.
(a) Simplified acquisition procedures as described in FAR part 13
for the procurement of noncommercial services for FSA requirements may
be used under the following circumstances:
(1) The procurement does not exceed $1,000,000;
(2) The procurement is conducted as a small business set-aside
pursuant to section 15(a) of the Small Business Act;
(3) The price charged for supplies associated with the services are
expected to be less than 20 percent of the total contract price;
(4) The procurement is competitive; and
(5) The procurement is not for construction.
(b) [Reserved]
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 3422--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 3422.10--Service Contract Labor Standards
Sec.
3422.1002 Statutory and Executive order requirements.
3422.1002-1 General.
Authority: 5 U.S.C. 301.
Subpart 3422.10--Service Contract Labor Standards
3422.1002 Statutory and Executive order requirements.
3422.1002-1 General.
Consistent with 29 CFR 4.145, the five-year limitation set forth in
the Service Contract Act of 1965, as amended (Service Contact Act),
applies to each period of the contract individually, not the cumulative
period of base and option periods. Accordingly, no contract subject to
the Service
[[Page 60550]]
Contract Act issued by the Department of Education will have a base
period or option period that exceeds five years.
PART 3424--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 3424.1--Protection of Individual Privacy
Sec.
3424.103 Procedures.
3424.170 Protection of human subjects.
Subpart 3424.2--Freedom of Information Act
3424.201 Authority.
3424.203 Policy.
Subpart 3424.7--The Family Educational Rights and Privacy Act
3424.701 Authority.
3424.702 Policy.
3424.703 Procedures.
3424.704 Contract clause.
Authority: 5 U.S.C. 301.
Subpart 3424.1--Protection of Individual Privacy
3424.103 Procedures.
(a) If the Privacy Act of 1974 (Privacy Act) applies to a contract,
the contracting officer must specify in the contract the disposition to
be made of the system or systems of records upon completion of
performance. For example, the contract may require the contractor to
completely destroy the records, to remove personal identifiers, to turn
the records over to ED, or to keep the records but take certain
measures to keep the records confidential and protect the individual's
privacy.
(b) If a notice of the system of records has not been published in
the Federal Register, the contracting officer may proceed with the
acquisition but must not award the contract until the notice is
published, unless the contracting officer determines, in writing, that
portions of the contract may proceed without maintaining information
subject to the Privacy Act. In this case, the contracting officer may--
(1) Award the contract, authorizing performance only of those
portions not subject to the Privacy Act; and
(2) After the notice is published and effective, authorize
performance of the remainder of the contract.
3424.170 Protection of human subjects.
In this section, research means a systematic investigation,
including research development, testing and evaluation, designed to
develop or contribute to generalizable knowledge. (34 CFR 97.102(d))
Research is considered to involve human subjects when a researcher
obtains information about a living individual through intervention or
interaction with the individual or obtains personally identifiable
private information about an individual. Some categories of research
are exempt in accordance with 34 CFR part 97.
(a) The contracting officer must insert the provision in 3452.224-
71 (Notice about research activities involving human subjects) 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.
(b) The contracting officer must insert the clause at 3452.224-72
(Research activities involving human subjects) in any solicitation that
includes the provision in 3452.224-71 (Notice about research activities
involving human subjects) and in any resultant contract.
Subpart 3424.2--Freedom of Information Act
3424.201 Authority.
The Department's regulations implementing the Freedom of
Information Act, 5 U.S.C. 552, are in 34 CFR part 5.
3424.203 Policy.
(b) The Department's policy is to release all information
incorporated into a contract and documents that result from the
performance of a contract to the public under the Freedom of
Information Act. The release or withholding of documents requested will
be made on a case-by-case basis. Contracting officers must advise
offerors and prospective contractors of the possibility that their
submissions may be released under the Freedom of Information Act, not
withstanding any restrictions that are included at the time of proposal
submission. A clause substantially the same as the clause at 3452.224-
70 (Release of information under the Freedom of Information Act) must
be included in all solicitations and contracts.
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 or 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 3425--FOREIGN ACQUISITION
Subpart 3425.1--Buy American--Supplies
Sec.
3425.103 Exceptions.
Authority: 5 U.S.C. 301.
[[Page 60551]]
Subpart 3425.1--Buy American--Supplies
3425.103 Exceptions.
The HCA approves determinations under FAR 25.103(b)(2)(i).
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 3427--PATENTS, DATA, AND COPYRIGHTS
Subpart 3427.4--Rights in Data and Copyrights
Sec.
3427.409 Solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301.
Subpart 3427.4--Rights in Data and Copyrights
3427.409 Solicitation provisions and contract clauses.
(a) The contracting officer must insert the clause at 3452.227-70
(Publication and publicity) in all solicitations and contracts other
than purchase orders.
(b) The contracting officer must insert the clause at 3452.227-71
(Advertising of awards) in all solicitations and contracts other than
purchase orders.
(c) The contracting officer must insert the clause at 3452.227-72
(Use and non-disclosure agreement) in all contracts over the simplified
acquisition threshold, and in contracts under the simplified
acquisition threshold, as appropriate.
(d) The contracting officer must insert the clause at 3452.227-73
(Limitations on the use or disclosure of Government-furnished
information marked with restrictive legends) in all contracts of third
party vendors who require access to Government-furnished information
including other contractors' technical data, proprietary information,
or software.
PART 3428--BONDS AND INSURANCE
Subpart 3428.3--Insurance
Sec.
3428.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
3428.311-2 Agency solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301.
Subpart 3428.3--Insurance
3428.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
3428.311-2 Agency solicitation 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.
PART 3430--COST ACCOUNTING STANDARDS ADMINISTRATION
Subpart 3420.2--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 3430.201--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).
PART 3431--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 3431.1--Applicability
Sec.
3431.101 Objectives.
Subpart 3431.2--Contracts With Commercial Organizations
3421.205 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.
PART 3432--CONTRACT FINANCING
Sec.
3432.000 Scope of part.
3432.006 Reduction or suspension of contract payments upon finding
of fraud.
3432.006-3 Responsibilities.
Subpart 3432.4--Advance Payments for Other Than Commercial Acquisitions
3432.402 General.
3432.407 Interest.
Subpart 3432.7--Contract Funding
3432.706 Contract clauses.
3432.706-2 Clauses for limitation of cost or funds.
Authority: 5 U.S.C. 301.
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 which 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.
Subpart 3432.4--Advance Payments for Other Than Commercial
Acquisitions
3432.402 General.
The HCA is delegated the authority to make determinations under FAR
32.402(c)(1)(iii). This authority may not be redelegated.
3432.407 Interest.
The HCA is designated as the official who may authorize advance
payments without interest under FAR 32.407(d).
Subpart 3432.7--Contract Funding
3432.706 Contract clauses.
3432.706-2 Clauses for limitation of cost or funds.
(c) The contracting officer must insert the clause at 3452.232-70
(Limitation of cost or funds) in all solicitations and contracts where
a limitation of cost or limitation of funds clause is utilized.
(d) The contracting officer must insert the provision in 3452.232-
71 (Incremental funding) in a solicitation if a cost-reimbursement
contract using incremental funding is contemplated.
(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
[[Page 60552]]
(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
Subpart 3433.1--Protests
Sec.
3433.103 Protests to the agency.
Authority: 5 U.S.C. 301.
Subpart 3433.1--Protests
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.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 3437--SERVICE CONTRACTING
Subpart 3437.1--Service Contracts--General
Sec.
3437.102 Policy.
3437.170 Observance of administrative closures.
Subpart 3437.2--Advisory and Assistance Services
3437.204 Guidelines for determining availability of personnel.
3437.270 Services of consultants clauses.
Subpart 3437.6--Performance-Based Acquisition
3437.601 General.
3437.670 Contract type.
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3437.1--Service Contracts--General
3437.102 Policy.
If a service contract requires one or more end items of supply, FAR
subpart 37.1 and this subpart apply only to the required services.
3437.170 Observance of administrative closures.
The contracting officer must insert the clause at 3452.237-71
(Observance of administrative closures) in all solicitations and
contracts for services.
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).
Subpart 3437.6--Performance-Based Acquisition
3437.601 General.
It is the Department's policy that all new service contracts be
performance-based, with clearly defined deliverable and performance
standards. Any deviations from this policy must be fully justified in
writing and approved by the HCA.
3437.670 Contract type.
Award-term contracting may be used for performance-based contracts
and task orders that provide opportunities for significant improvements
and benefits to the Department. Use of award-term contracting must be
approved in advance by the HCA.
PART 3439--ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 3439.70--Department Requirements for Acquisition of Information
Technology
Sec.
3439.701 Internet protocol version 6.
3439.702 Department information security and privacy requirements.
[[Page 60553]]
Authority: 5 U.S.C. 301 and 20 U.S.C. 1018a.
Subpart 3439.70--Department Requirements for Acquisition of
Information Technology
3439.701 Internet protocol version 6.
The contracting officer must insert the clause at 3452.239-70
(internet protocol version 6 (IPv6)) in all solicitations and resulting
contracts for hardware and software.
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.
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 3442--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 3442.70--Contract Monitoring
Sec.
3442.7001 Litigation and claims clause.
3442.7002 Delays clause.
Subpart 3442.71--Accessibility of Meetings, Conferences, and Seminars
to Persons With Disabilities
3442.7101 Policy and clause.
Authority: 5 U.S.C. 301.
Subpart 3442.70--Contract Monitoring
3442.7001 Litigation and claims clause.
The contracting officer must insert the clause at 3452.242-70
(Litigation and claims) in all solicitations and resultant cost-
reimbursement contracts.
3442.7002 Delays clause.
The contracting officer must insert the clause at 3452.242-71
(Notice to the Government of delays) in all solicitations and contracts
other than purchase orders.
Subpart 3442.71--Accessibility of Meetings, Conferences, and
Seminars to Persons With Disabilities
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
Subpart 3443.1--General
Sec.
3443.107 Contract clause.
Authority: 5 U.S.C. 301.
Subpart 3443.1--General
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 3445--GOVERNMENT PROPERTY
Subpart 3445.3--Authorizing the Use and Rental of Government Property
Sec.
3445.302 Contracts with foreign governments or international
organizations.
Authority: 5 U.S.C. 301.
Subpart 3445.3--Authorizing the Use and Rental of Government
Property
3445.302 Contracts with foreign governments or international
organizations.
Requests by, or for the benefit of, foreign governments or
international organizations to use ED production and research property
must be approved by the HCA. The HCA must determine the amount of cost
to be recovered or rental charged, if any, based on the facts and
circumstances of each case.
PART 3447--TRANSPORTATION
Subpart 3447.7--Foreign Travel
Sec.
3447.701 Foreign travel clause.
Authority: 5 U.S.C. 301.
Subpart 3447.7--Foreign Travel
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.
SUBCHAPTER H--CLAUSES AND FORMS
PART 3452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 3452.2--Text of Provisions and Clauses
Sec.
3452.201-70 Contracting Officer's Representative (COR).
3452.202-1 Definitions--Department of Education.
3452.204-70 Records management.
3452.204-71 Contractor security vetting requirements.
3452.208-72 Paperwork Reduction Act.
3452.209-70 Conflict of interest certification.
3452.209-71 Conflict of interest.
3452.215-70 Release of restricted data.
3452.216-70 Additional cost principles.
3452.216-71 Award-Term.
3452.224-70 Release of information under the Freedom of Information
Act.
3452.224-71 Notice about research activities involving human
subjects.
3452.224-72 Research activities involving human subjects.
3452.224-73 Protection of student privacy in compliance with FERPA.
3452.227-70 Publication and publicity.
3452.227-71 Advertising of awards.
3452.227-72 Use and non-disclosure agreement.
3452.227-73 Limitations on the use or disclosure of Government-
furnished information marked with restrictive legends.
3452.228-70 Required insurance.
3452.231-71 Invitational travel costs.
3452.232-70 Limitation of cost or funds.
3452.232-71 Incremental funding.
3452.232-72 Limitation of Government's obligation.
3452.233-70 Agency level protests.
3452.237-70 Services of consultants.
3452.237-71 Observance of administrative closures.
3452.239-70 Internet protocol version 6 (IPv6).
3452.239-71 Department information security and privacy
requirements.
3452.242-70 Litigation and claims.
3452.242-71 Notice to the Government of delays.
3452.242-73 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
3452.243-70 Key personnel.
3452.247-70 Foreign travel.
Authority: 5 U.S.C. 301.
Subpart 3452.2--Text of Provisions and Clauses
3452.201-70 Contracting Officer's Representative (COR).
As prescribed in 3401.604-70, insert a clause substantially the
same as:
Contracting Officer's Representative (COR) (Mar 2011)
(a) The Contracting Officer's Representative (COR) is
responsible for the technical aspects of the project, technical
liaison with the contractor, and any other responsibilities that are
specified in the contract. These responsibilities include inspecting
all deliverables, including reports, and recommending acceptance or
rejection to the contracting officer.
(b) The COR is not authorized to make any commitments or
otherwise obligate the Government or authorize any changes that
affect the contract price, terms, or conditions. Any contractor
requests for changes shall be
[[Page 60554]]
submitted in writing directly to the contracting officer or through
the COR. No such changes shall be made without the written
authorization of the contracting officer.
(c) The COR's name and contact information:
(d) The COR may be changed by the Government at any time, but
notification of the change, including the name and address of the
successor COR, will be provided to the contractor by the contracting
officer in writing.
(End of Clause)
3452.202-1 Definitions--Department of Education.
As prescribed in 3402.201, insert the following clause in
solicitations and contracts in which the clause at FAR 52.202-1 is
required.
Definitions--Department of Education (Mar 2011)
(a) The definitions at FAR 2.101 are appended with those
contained in Education Department Acquisition Regulations (EDAR)
3402.101.
(b) The EDAR is available via the internet at <a href="http://www.ed.gov/policy/fund/reg/clibrary/edar.html">www.ed.gov/policy/fund/reg/clibrary/edar.html</a>.
(End of Clause)
3452.204-70 Records management.
As prescribed in 3404.770, insert the following clause:
Records Management (Oct 2023)
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. (a) The Contractor shall provide a records inventory to the
Contracting Officer Representative and Contracting Officer within 60
business days after contract or order award. The Department will
review the records inventory for accuracy and accept or reject the
records inventory within 60 business days after receipt.
(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
Representative and 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 a
revised records inventory. The Department will review the records
inventory for accuracy and accept or reject the records inventory
within 60 business days after receipt.
(c) The Department will periodically review, and may, in its
sole discretion, update, the records inventory to ensure that it is
current, accurate, and complete. The Department will provide the
Contractor with a copy of any such updated records inventory.
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
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.
[[Page 60555]]
(b) Violation by a subcontractor of any provision set forth in
this clause will be attributed to the Contractor.
(End of Clause)
3452.204-71 Contractor security vetting requirements.
As prescribed in 3404.470-1, insert the following clause:
Contractor Security Vetting Requirements (Oct 2023)
(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 the clause at FAR 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)
3452.208-72 Paperwork Reduction Act.
As prescribed in 3408.871, insert the following clause in all
relevant solicitations and contracts:
Paperwork Reduction Act (Mar 2011)
(a) The Paperwork Reduction Act of 1995 applies to contractors
that collect information for use or disclosure by the Federal
government. If the contractor will collect information requiring
answers to identical questions from 10 or more people, no plan,
questionnaire, interview guide, or other similar device for
collecting information may be used without first obtaining clearance
from the Chief Acquisition Officer (CAO) or the CAO's designee
within the Department of Education (ED) and the Office of Management
and Budget (OMB). Contractors and Contracting Officers'
Representatives shall be guided by the provisions of 5 CFR part
1320, Controlling Paperwork Burdens on the Public, and should seek
the advice of the Department's Paperwork Clearance Officer to
determine the procedures for acquiring CAO and OMB clearance.
(b) The contractor shall obtain the required clearances through
the Contracting Officer's Representative before expending any funds
or making public contacts for the collection of information
described in paragraph (a) of this clause. The authority to expend
funds and proceed with the collection shall be in writing by the
contracting officer. The contractor must plan at least 120 days for
CAO and OMB clearance. Excessive delay caused by the Government that
arises out of causes beyond the control and without the fault or
negligence of the contractor will be considered in accordance with
the Excusable Delays or Default clause of this contract.
(End of Clause)
3452.209-70 Conflict of interest certification.
As prescribed in 3409.507-1, insert the following provision in all
solicitations anticipated to result in contract actions for services
above the simplified acquisition threshold:
Conflict of Interest Certification (Mar 2011)
(a)(1) The contractor, subcontractor, employee, or consultant,
by signing the form in this clause, certifies that, to the best of
its knowledge and belief, there are no relevant facts or
circumstances that could give rise to an organizational or personal
conflict of interest, (see FAR subpart 9.5 for organizational
conflicts of interest) (or apparent conflict of interest), for the
organization or any of its staff, and that the contractor,
subcontractor, employee, or consultant has disclosed all such
relevant information if such a conflict of interest appears to exist
to a reasonable person with knowledge of the relevant facts (or if
such a person would question the impartiality of the contractor,
subcontractor, employee, or consultant). Conflicts may arise in the
following situations:
(i) Unequal access to information. A potential contractor,
subcontractor, employee, or consultant has access to non-public
information through its performance on a government contract.
(ii) Biased ground rules. A potential contractor, subcontractor,
employee, or consultant has worked, in one government contract, or
program, on the basic structure or ground rules of another
government contract.
(iii) Impaired objectivity. A potential contractor,
subcontractor, employee, or consultant, or member of their immediate
family (spouse, parent, or child) has financial or other interests
that would impair, or give the appearance of impairing, impartial
judgment in the evaluation of government
[[Page 60556]]
programs, in offering advice or recommendations to the government,
or in providing technical assistance or other services to recipients
of Federal funds as part of its contractual responsibility.
``Impaired objectivity'' includes but is not limited to the
following situations that would cause a reasonable person with
knowledge of the relevant facts to question a person's objectivity:
(A) Financial interests or reasonably foreseeable financial
interests in or in connection with products, property, or services
that may be purchased by an educational agency, a person,
organization, or institution in the course of implementing any
program administered by the Department;
(B) Significant connections to teaching methodologies or
approaches that might require or encourage the use of specific
products, property, or services; or
(C) Significant identification with pedagogical or philosophical
viewpoints that might require or encourage the use of a specific
curriculum, specific products, property, or services.
(2) Offerors must provide the disclosure described above on any
actual or potential conflict of interest (or apparent conflict of
interest) regardless of their opinion that such a conflict or
potential conflict (or apparent conflict of interest) would not
impair their objectivity.
(3) In a case in which an actual or potential conflict (or
apparent conflict of interest) is disclosed, the Department will
take appropriate actions to eliminate or address the actual or
potential conflict, including but not limited to mitigating or
neutralizing the conflict, when appropriate, through such means as
ensuring a balance of views, disclosure with the appropriate
disclaimers, or by restricting or modifying the work to be performed
to avoid or reduce the conflict. In this clause, the term
``potential conflict'' means reasonably foreseeable conflict of
interest.
(b) The contractor, subcontractor, employee, or consultant
agrees that if ``impaired objectivity'', or an actual or potential
conflict of interest (or apparent conflict of interest) is
discovered after the award is made, it will make a full disclosure
in writing to the contracting officer. This disclosure shall include
a description of actions that the contractor has taken or proposes
to take to avoid, mitigate, or neutralize the actual or potential
conflict (or apparent conflict of interest).
(c) Remedies. The Government may terminate this contract for
convenience, in whole or in part, if it deems such termination
necessary to avoid the appearance of a conflict of interest. If the
contractor was aware of a potential conflict of interest prior to
award or discovered an actual or potential conflict after award and
did not disclose or misrepresented relevant information to the
contracting officer, the Government may terminate the contract for
default, or pursue such other remedies as may be permitted by law or
this contract. These remedies include imprisonment for up to five
years for violation of 18 U.S.C. 1001 and fines of up to $5000 for
violation of 31 U.S.C. 3802. Further remedies include suspension or
debarment from contracting with the Federal government. The
contractor may also be required to reimburse the Department for
costs the Department incurs arising from activities related to
conflicts of interest. An example of such costs would be those
incurred in processing Freedom of Information Act requests related
to a conflict of interest.
(d) In cases where remedies short of termination have been
applied, the contractor, subcontractor, employee, or consultant
agrees to eliminate the organizational conflict of interest, or
mitigate it to the satisfaction of the contracting officer.
(e) The contractor further agrees to insert in any subcontract
or consultant agreement hereunder, provisions that conform
substantially to the language of this clause, including specific
mention of potential remedies and this paragraph (e).
(f) Conflict of Interest Certification.
The offeror, [insert name of offeror], hereby certifies that, to
the best of its knowledge and belief, there are no present or
currently planned interests (financial, contractual, organizational,
or otherwise) relating to the work to be performed under the
contract or task order resulting from Request for Proposal No.
[insert number] that would create any actual or potential conflict
of interest (or apparent conflicts of interest) (including conflicts
of interest for immediate family members: spouses, parents,
children) that would impinge on its ability to render impartial,
technically sound, and objective assistance or advice or result in
it being given an unfair competitive advantage. In this clause, the
term ``potential conflict'' means reasonably foreseeable conflict of
interest. The offeror further certifies that it has and will
continue to exercise due diligence in identifying and removing or
mitigating, to the Government's satisfaction, such conflict of
interest (or apparent conflict of interest).
Offeror's Name---------------------------------------------------------
RFP/Contract No.-------------------------------------------------------
Signature--------------------------------------------------------------
Title------------------------------------------------------------------
Date-------------------------------------------------------------------
(End of Provision)
3452.209-71 Conflict of interest.
As prescribed in 3409.507-2, insert the following clause in all
contracts for services above the simplified acquisition threshold:
Conflict of Interest (Mar 2011)
(a)(1) The contractor, subcontractor, employee, or consultant
has certified that, to the best of its knowledge and belief, there
are no relevant facts or circumstances that could give rise to an
organizational or personal conflict of interest (see FAR subpart 9.5
for organizational conflicts of interest) (or apparent conflict of
interest) for the organization or any of its staff, and that the
contractor, subcontractor, employee, or consultant has disclosed all
such relevant information if such a conflict of interest appears to
exist to a reasonable person with knowledge of the relevant facts
(or if such a person would question the impartiality of the
contractor, subcontractor, employee, or consultant). Conflicts may
arise in the following situations:
(i) Unequal access to information--A potential contractor,
subcontractor, employee, or consultant has access to non-public
information through its performance on a government contract.
(ii) Biased ground rules--A potential contractor, subcontractor,
employee, or consultant has worked, in one government contract, or
program, on the basic structure or ground rules of another
government contract.
(iii) Impaired objectivity--A potential contractor,
subcontractor, employee, or consultant, or member of their immediate
family (spouse, parent, or child) has financial or other interests
that would impair, or give the appearance of impairing, impartial
judgment in the evaluation of government programs, in offering
advice or recommendations to the government, or in providing
technical assistance or other services to recipients of Federal
funds as part of its contractual responsibility. ``Impaired
objectivity'' includes but is not limited to the following
situations that would cause a reasonable person with knowledge of
the relevant facts to question a person's objectivity:
(A) Financial interests or reasonably foreseeable financial
interests in or in connection with products, property, or services
that may be purchased by an educational agency, a person,
organization, or institution in the course of implementing any
program administered by the Department;
(B) Significant connections to teaching methodologies that might
require or encourage the use of specific products, property, or
services; or
(C) Significant identification with pedagogical or philosophical
viewpoints that might require or encourage the use of a specific
curriculum, specific products, property, or services.
(2) Offerors must provide the disclosure described above on any
actual or potential conflict (or apparent conflict of interest) of
interest regardless of their opinion that such a conflict or
potential conflict (or apparent conflict of interest) would not
impair their objectivity.
(3) In a case in which an actual or potential conflict (or
apparent conflict of interest) is disclosed, the Department will
take appropriate actions to eliminate or address the actual or
potential conflict (or apparent conflict of interest), including but
not limited to mitigating or neutralizing the conflict, when
appropriate, through such means as ensuring a balance of views,
disclosure with the appropriate disclaimers, or by restricting or
modifying the work to be performed to avoid or reduce the conflict.
In this clause, the term ``potential conflict'' means reasonably
foreseeable conflict of interest.
(b) The contractor, subcontractor, employee, or consultant
agrees that if ``impaired objectivity'', or an actual or potential
conflict of interest (or apparent conflict of interest) is
discovered after the award is made, it will make a full disclosure
[[Page 60557]]
in writing to the contracting officer. This disclosure shall include
a description of actions that the contractor has taken or proposes
to take, after consultation with the contracting officer, to avoid,
mitigate, or neutralize the actual or potential conflict (or
apparent conflict of interest).
(c) Remedies. The Government may terminate this contract for
convenience, in whole or in part, if it deems such termination
necessary to avoid the appearance of a conflict of interest. If the
contractor was aware of a potential conflict of interest prior to
award or discovered an actual or potential conflict (or apparent
conflict of interest) after award and did not disclose or
misrepresented relevant information to the contracting officer, the
Government may terminate the contract for default, or pursue such
other remedies as may be permitted by law or this contract. These
remedies include imprisonment for up to five years for violation of
18 U.S.C. 1001 and fines of up to $5000 for violation of 31 U.S.C.
3802. Further remedies include suspension or debarment from
contracting with the Federal government. The contractor may also be
required to reimburse the Department for costs the Department incurs
arising from activities related to conflicts of interest. An example
of such costs would be those incurred in processing Freedom of
Information Act requests related to a conflict of interest.
(d) In cases where remedies short of termination have been
applied, the contractor, subcontractor, employee, or consultant
agrees to eliminate the organizational conflict of interest, or
mitigate it to the satisfaction of the contracting officer.
(e) The contractor further agrees to insert in any subcontract
or consultant agreement hereunder, provisions that conform
substantially to the language of this clause, including specific
mention of potential remedies and this paragraph (e).
(End of Clause)
3452.215-70 Release of restricted data.
As prescribed in 3415.209, insert the following provision in
solicitations:
Release of Restricted Data (Mar 2011)
(a) Offerors are hereby put on notice that regardless of their
use of the legend set forth in FAR 52.215-1(e), Restriction on
Disclosure and Use of Data, the Government may be required to
release certain data contained in the proposal in response to a
request for the data under the Freedom of Information Act (FOIA).
The Government's determination to withhold or disclose a record will
be based upon the particular circumstance involving the data in
question and whether the data may be exempted from disclosure under
FOIA. In accordance with Executive Order 12600 and to the extent
permitted by law, the Government will notify the offeror before it
releases restricted data.
(b) By submitting a proposal or quotation in response to this
solicitation:
(1) The offeror acknowledges that the Department may not be able
to withhold or deny access to data requested pursuant to FOIA and
that the Government's FOIA officials shall make that determination;
(2) The offeror agrees that the Government is not liable for
disclosure if the Department has determined that disclosure is
required by FOIA;
(3) The offeror acknowledges that proposals not resulting in a
contract remain subject to FOIA; and
(4) The offeror agrees that the Government is not liable for
disclosure or use of unmarked data and may use or disclose the data
for any purpose, including the release of the information pursuant
to requests under FOIA.
(c) Offerors are cautioned that the Government reserves the
right to reject any proposal submitted with:
(1) A restrictive legend or statement differing in substance
from the one required by the solicitation provision in FAR 52.215-
1(e), Restriction on Disclosure and Use of Data, or
(2) A statement taking exceptions to the terms of paragraphs (a)
or (b) of this provision.
(End of Provision)
3452.216-70 Additional cost principles.
Insert the following clause in solicitations and contracts as
prescribed in 3416.307(b):
Additional Cost Principles (Aug 1987)
(a) Bid and Proposal Costs. Bid and proposal costs are the
immediate costs of preparing bids, proposals, and applications for
potential Federal and non-Federal grants, contracts, and other
agreements, including the development of scientific, cost, and other
data needed to support the bids, proposals, and applications. Bid
and proposal costs of the current accounting period are allowable as
indirect costs; bid and proposal costs of past accounting periods
are unallowable as costs of the current period. However, if the
organization's established practice is to treat these costs by some
other method, they may be accepted if they are found to be
reasonable and equitable. Bid and proposal costs do not include
independent research and development costs or pre-award costs.
(b) Independent research and development costs. Independent
research and development is research and development that is not
sponsored by Federal and non-Federal grants, contracts, or other
agreements. Independent research and development shall be allocated
its proportionate share of indirect costs on the same basis as the
allocations of indirect costs of sponsored research and development.
The costs of independent research and development, including its
proportionate share of indirect costs, are unallowable.
(End of Clause)
3452.216-71 Award-Term.
As prescribed in 3416.470, insert a clause substantially the same
as the following in all solicitations and contracts where an award-term
arrangement is anticipated:
Award-Term (Oct 2023)
(a) The initial [insert initial contract term] contract term or
ordering period may be extended or reduced on the basis of
contractor performance, resulting in a contract term or an ordering
period lasting at least [insert minimum contract term] years from
the date of contract award, to a maximum of [insert maximum contract
term] years after the date of contract award.
(b) The contractor's performance will be measured against stated
standards by the performance monitors, who will report their
findings to the Award Term Determining Official (or Board).
(c) Bilateral changes may be made to the award-term plan at any
time. If agreement cannot be made within 60 days, the Government
reserves the right to make unilateral changes prior to the start of
an award-term period.
(d) The contractor will submit a brief written self-evaluation
of its performance within X days after the end of the evaluation
period. The self-evaluation report shall not exceed seven pages, and
it may be considered in the Award Term Review Board's (ATRB's) (or
Term Determining Official's) evaluation of the contractor's
performance during this period.
(e) The contract term or ordering period requires bilateral
modification to reflect the ATRB's decision. If the contract term or
ordering period has one year remaining, the operation of the
contract award-term feature will cease and the contract term or
ordering period will not extend beyond the maximum term stated in
the contract.
(f) Award terms that have not begun may be cancelled (rather
than terminated), should the need for the items or services no
longer exists. No equitable adjustments to the contract price are
applicable, as this is not the same procedure as a termination for
convenience.
(g) The decisions made by the ATRB or Term Determining Official
may be made unilaterally. Alternate Dispute Resolution procedures
shall be utilized when appropriate.
(End of Clause)
3452.224-70 Release of information under the Freedom of Information
Act.
As prescribed in 3424.203, insert the following clause in
solicitations and contracts.
Release of Information Under the Freedom of Information Act (Mar 2011)
By entering into a contract with the Department of Education,
the contractor, without regard to proprietary markings, approves the
release of the entire contract and all related modifications and
task orders including, but not limited to:
(1) Unit prices, including labor rates;
(2) Statements of Work/Performance Work Statements generated by
the contractor;
(3) Performance requirements, including incentives, performance
standards, quality levels, and service level agreements;
(4) Reports, deliverables, and work products delivered in
performance of the contract (including quality of service,
performance against requirements/standards/service level
agreements);
[[Page 60558]]
(5) Any and all information, data, software, and related
documentation first provided under the contract;
(6) Proposals or portions of proposals incorporated by
reference; and
(7) Other terms and conditions.
(End of Clause)
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 (Oct 2023)
(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 at 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 60559]]
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#d69ea3bbb7b885a3b4bcb3b5a2a584b3a5b3b7a4b5be96b3b2f8b1b9a0"><span class="__cf_email__" data-cfemail="632b160e020d3016010906001710310610060211000b2306074d040c15">[email protected]</span></a>.
(End of Provision)
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 (Oct 2023)
(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#3e764b535f506d4b5c545b5d4a4d6c5b4d5b5f4c5d567e5b5a10595148"><span class="__cf_email__" data-cfemail="4008352d212e1335222a2523343312253325213223280025246e272f36">[email protected]</span></a>.
(End of Clause)
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 (Oct 2023)
(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 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
[[Page 60560]]
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)
3452.227-70 Publication and publicity.
As prescribed in 3427.409, insert the following clause in all
solicitations and contracts other than purchase orders:
Publication and Publicity (Mar 2011)
(a) Unless otherwise specified in this contract, the contractor
is encouraged to publish and otherwise promote the results of its
work under this contract. A copy of each article or work submitted
by the contractor for publication shall be promptly sent to the
contracting officer's representative. The contractor shall also
inform the representative when the article or work is published and
furnish a copy in the published form.
(b) The contractor shall acknowledge the support of the
Department of Education in publicizing the work under this contract
in any medium. This acknowledgement shall read substantially as
follows:
``This project has been funded at least in part with Federal
funds from the U.S. Department of Education under contract number
[Insert number]. The content of this publication does not
necessarily reflect the views or policies of the U.S. Department of
Education nor does mention of trade names, commercial products, or
organizations imply endorsement by the U.S. Government.''
(End of Clause)
3452.227-71 Advertising of awards.
As prescribed in 3427.409, insert the following clause in all
solicitations and contracts other than purchase orders:
Advertising of Awards (Mar 2011)
The contractor agrees not to refer to awards issued by, or
products or services delivered to, the Department of Education in
commercial advertising in such a manner as to state or imply that
the product or service provided is endorsed by the Federal
government or is considered by the Federal government to be superior
to other products or services.
(End of Clause)
3452.227-72 Use and non-disclosure agreement.
As prescribed in 3427.409, insert the following clause in all
contracts over the simplified acquisition threshold, and in contracts
under the simplified acquisition threshold as appropriate:
Use and Non-Disclosure Agreement (Mar 2011)
(a) Except as provided in paragraph (b) of this clause,
proprietary data, technical data, or computer software delivered to
the Government with restrictions on use, modification, reproduction,
release, performance, display, or disclosure may not be provided to
third parties unless the intended recipient completes and signs the
use and non-disclosure agreement in paragraph (c) of this clause
prior to release or disclosure of the data.
(1) The specific conditions under which an intended recipient
will be authorized to use, modify, reproduce, release, perform,
display, or disclose proprietary data or technical data subject to
limited rights, or computer software subject to restricted rights
must be stipulated in an attachment to the use and non-disclosure
agreement.
(2) For an intended release, disclosure, or authorized use of
proprietary data, technical data, or computer software subject to
special license rights, modify paragraph (c)(1)(iv) of this clause
to enter the conditions, consistent with the license requirements,
governing the recipient's obligations regarding use, modification,
reproduction, release, performance, display, or disclosure of the
data or software.
(b) The requirement for use and non-disclosure agreements does
not apply to Government contractors that require access to a third
party's data or software for the performance of a Government
contract that contains the clause at 3452.227-73, Limitations on the
use or disclosure of Government-furnished information marked with
restrictive legends.
(c) The prescribed use and non-disclosure agreement is:
Use and Non-Disclosure Agreement
The undersigned, [Insert Name], an authorized representative of
the [Insert Company Name], (which is hereinafter referred to as the
``recipient'') requests the Government to provide the recipient with
proprietary data, technical data, or computer software (hereinafter
referred to as ``data'') in which the Government's use,
modification, reproduction, release, performance, display, or
disclosure rights are restricted. Those data are identified in an
attachment to this agreement. In consideration for receiving such
data, the recipient agrees to use the data strictly in accordance
with this agreement.
(1) The recipient shall--
(i) Use, modify, reproduce, release, perform, display, or
disclose data marked with Small Business Innovative Research (SBIR)
data rights legends only for government purposes and shall not do so
for any commercial purpose. The recipient shall not release,
perform, display, or disclose these data, without the express
written permission of the contractor whose name appears in the
restrictive legend (the contractor), to any person other than its
subcontractors or suppliers, or prospective subcontractors or
suppliers, who require these data to submit offers for, or perform,
contracts with the recipient. The recipient shall require its
subcontractors or suppliers, or prospective subcontractors or
suppliers, to sign a use and non-disclosure agreement prior to
disclosing or releasing these data to such persons. Such an
agreement must be consistent with the terms of this agreement.
(ii) Use, modify, reproduce, release, perform, display, or
disclose proprietary data or technical data marked with limited
rights legends only as specified in the attachment to this
agreement. Release, performance, display, or disclosure to other
persons is not authorized unless specified in the attachment to this
agreement or expressly permitted in writing by the contractor.
(iii) Use computer software marked with restricted rights
legends only in performance of contract number [insert contract
number(s)]. The recipient shall not, for example, enhance,
decompile, disassemble, or reverse engineer the software; time
share; or use a computer program with more than one computer at a
time. The recipient may not release, perform, display, or disclose
such software to others unless expressly permitted in writing by the
licensor whose name appears in the restrictive legend.
(iv) Use, modify, reproduce, release, perform, display, or
disclose data marked
[[Page 60561]]
with special license rights legends [To be completed by the
contracting officer. See paragraph (a)(2) of this clause. Omit if
none of the data requested is marked with special license rights
legends].
(2) The recipient agrees to adopt or establish operating
procedures and physical security measures designed to protect these
data from inadvertent release or disclosure to unauthorized third
parties.
(3) The recipient agrees to accept these data ``as is'' without
any Government representation as to suitability for intended use or
warranty whatsoever. This disclaimer does not affect any obligation
the Government may have regarding data specified in a contract for
the performance of that contract.
(4) The recipient may enter into any agreement directly with the
contractor with respect to the use, modification, reproduction,
release, performance, display, or disclosure of these data.
(5) The recipient agrees to indemnify and hold harmless the
Government, its agents, and employees from every claim or liability,
including attorneys fees, court costs, and expenses arising out of,
or in any way related to, the misuse or unauthorized modification,
reproduction, release, performance, display, or disclosure of data
received from the Government with restrictive legends by the
recipient or any person to whom the recipient has released or
disclosed the data.
(6) The recipient is executing this agreement for the benefit of
the contractor. The contractor is a third party beneficiary of this
agreement who, in addition to any other rights it may have, is
intended to have the rights of direct action against the recipient
or any other person to whom the recipient has released or disclosed
the data, to seek damages from any breach of this agreement, or to
otherwise enforce this agreement.
(7) The recipient agrees to destroy these data, and all copies
of the data in its possession, no later than 30 days after the date
shown in paragraph (8) of this agreement, to have all persons to
whom it released the data do so by that date, and to notify the
contractor that the data have been destroyed.
(8) This agreement shall be effective for the period commencing
with the recipient's execution of this agreement and ending upon
[Insert Date]. The obligations imposed by this agreement shall
survive the expiration or termination of the agreement.
[Insert business name.]
Recipient's Business Name
[Have representative sign.]
Authorized Representative
[Insert date.]
Date
[Insert name and title.]
Representative's Typed Name and Title
(End of Clause)
3452.227-73 Limitations on the use or disclosure of Government-
furnished information marked with restrictive legends.
As prescribed in 3427.409, insert the following clause in all
contracts of third party vendors who require access to Government-
furnished information including other contractors' technical data,
proprietary information, or software:
Limitations on the Use or Disclosure of Government-Furnished
Information Marked With Restrictive Legends (Mar 2011)
(a) For contracts under which data are to be produced,
furnished, or acquired, the terms limited rights and restricted
rights are defined in the rights in data--general clause (FAR
52.227-14).
(b) Proprietary data, technical data, or computer software
provided to the contractor as Government-furnished information (GFI)
under this contract may be subject to restrictions on use,
modification, reproduction, release, performance, display, or
further disclosure.
(1) Proprietary data with legends that serve to restrict
disclosure or use of data. The contractor shall use, modify,
reproduce, perform, or display proprietary data received from the
Government with proprietary or restrictive legends only in the
performance of this contract. The contractor shall not, without the
express written permission of the party who owns the data, release,
or disclose such data or software to any person.
(2) GFI marked with limited or restricted rights legends. The
contractor shall use, modify, reproduce, perform, or display
technical data received from the Government with limited rights
legends or computer software received with restricted rights legends
only in the performance of this contract. The contractor shall not,
without the express written permission of the party whose name
appears in the legend, release or disclose such data or software to
any person.
(3) GFI marked with specially negotiated license rights legends.
The contractor shall use, modify, reproduce, release, perform, or
display proprietary data, technical data, or computer software
received from the Government with specially negotiated license
legends only as permitted in the license. Such data or software may
not be released or disclosed to other persons unless permitted by
the license and, prior to release or disclosure, the intended
recipient has completed the use and non-disclosure agreement. The
contractor shall modify paragraph (c)(1)(iii) of the use and non-
disclosure agreement (3452.227-72) to reflect the recipient's
obligations regarding use, modification, reproduction, release,
performance, display, and disclosure of the data or software.
(c) Indemnification and creation of third party beneficiary
rights.
(1) The contractor agrees to indemnify and hold harmless the
Government, its agents, and employees from every claim or liability,
including attorneys fees, court costs, and expenses, arising out of,
or in any way related to, the misuse or unauthorized modification,
reproduction, release, performance, display, or disclosure of
proprietary data, technical data, or computer software received from
the Government with restrictive legends by the contractor or any
person to whom the contractor has released or disclosed such data or
software.
(2) The contractor agrees that the party whose name appears on
the restrictive legend, in addition to any other rights it may have,
is a third party beneficiary who has the right of direct action
against the contractor, or any person to whom the contractor has
released or disclosed such data or software, for the unauthorized
duplication, release, or disclosure of proprietary data, technical
data, or computer software subject to restrictive legends.
(End of Clause)
3452.228-70 Required insurance.
As prescribed in 3428.311-2, insert the following clause in all
solicitations and resultant cost-reimbursement contracts:
Required Insurance (Mar 2011)
(a) The contractor shall procure and maintain such insurance as
required by law or regulation, including but not limited to the
requirements of FAR subpart 28.3. Prior written approval of the
contracting officer shall be required with respect to any insurance
policy, the premiums for which the contractor proposes to treat as a
direct cost under this contract, and with respect to any proposed
qualified program of self-insurance. The terms of any other
insurance policy shall be submitted to the contracting officer for
approval upon request.
(b) Unless otherwise authorized in writing by the contracting
officer, the contractor shall not procure or maintain for its own
protection any insurance covering loss or destruction of, or damage
to, Government property.
(End of Clause)
3452.231-71 Invitational travel costs.
As prescribed in 3431.205-71, insert a provision substantially the
same as the following:
Invitational Travel Costs (Oct 2023)
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 _____.
[[Page 60562]]
(End of Clause)
3452.232-70 Limitation of cost or funds.
The following clause shall be inserted in all contracts that
include a Limitation of cost or Limitation of funds clause in
accordance with 3432.706-2:
Limitation of Cost or Funds (Mar 2011)
(a) Under the circumstances in FAR 32.704(a)(1), the contractor
shall submit the following information in writing to the contracting
officer:
(1) Name and address of the contractor.
(2) Contract number and expiration date.
(3) Contract items and amounts that will exceed the estimated
cost of the contract or the limit of the funds allotted.
(4) The elements of cost that changed from the original estimate
(for example: labor, material, travel, overhead), furnished in the
following order:
(i) Original estimate.
(ii) Costs incurred to date.
(iii) Estimated cost to completion.
(iv) Revised estimate.
(v) Amount of adjustment.
(5) The factors responsible for the increase.
(6) The latest date by which funds must be available to the
contractor to avoid delays in performance, work stoppage, or other
impairments.
(b) A fixed fee provided in a contract may not be changed if a
cost overrun is funded. Changes in a fixed fee may be made only to
reflect changes in the scope of work that justify an increase or
decrease in the fee.
(End of Clause)
3452.232-71 Incremental funding.
As prescribed in 3432.706-2, insert the following provision in
solicitations if a cost-reimbursement contract using incremental
funding is contemplated:
Incremental Funding (Mar 2011)
Sufficient funds are not presently available to cover the total
cost of the complete project described in this solicitation.
However, it is the Government's intention to negotiate and award a
contract using the incremental funding concepts described in the
clause titled ``Limitation of Funds'' in FAR 52.232-22. Under that
clause, which will be included in the resultant contract, initial
funds will be obligated under the contract to cover an estimated
base performance period. Additional funds are intended to be
allotted to the contract by contract modification, up to and
including the full estimated cost of the entire period of
performance. This intent notwithstanding, the Government will not be
obligated to reimburse the contractor for costs incurred in excess
of the periodic allotments, nor will the contractor be obligated to
perform in excess of the amount allotted.
(End of Provision)
3452.232-72 Limitation of Government's Obligation.
As prescribed in 3432.706-2(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 (Oct 2023)
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 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
[[Page 60563]]
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:
------------------------------------------------------------------------
Amount Last date of
CLIN allotted performance
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of Clause)
3452.233-70 Agency level protests.
As prescribed in 3433.103, insert the following clause:
Agency Level Protests (Oct 2023)
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 Provision)
3452.237-70 Services of consultants.
As prescribed in 3437.270, insert the following clause in all
solicitations and resultant cost-reimbursement contracts that do not
provide services to FSA:
Services of Consultants (Mar 2011)
Except as otherwise expressly provided elsewhere in this
contract, and notwithstanding the provisions of the clause of the
contract entitled ``Subcontracts'' (FAR 52.244-2), the prior written
approval of the contracting officer shall be required--
(a) If any employee of the contractor is to be paid as a
``consultant'' under this contract; and
(b)(1) For the utilization of the services of any consultant
under this contract exceeding the daily rate set forth elsewhere in
this contract or, if no amount is set forth, $800, exclusive of
travel costs, or if the services of any consultant under this
contract will exceed 10 days in any calendar year.
(2) If that contracting officer's approval is required, the
contractor shall obtain and furnish to the contracting officer
information concerning the need for the consultant services and the
reasonableness of the fee to be paid, including, but not limited to,
whether fees to be paid to any consultant exceed the lowest fee
charged by the consultant to others for performing consultant
services of a similar nature.
(End of Clause)
3452.237-71 Observance of administrative closures.
As prescribed in 3437.170, insert the following clause in all
solicitations and service contracts:
Observance of Administrative Closures (Mar 2011)
(a) The contract schedule identifies all Federal holidays that
are observed under this contract. Contractor performance is required
under this contract at all other times, and compensated absences are
not extended due to administrative closures of Government facilities
and operations due to inclement weather, Presidential decree, or
other administrative issuances where Government personnel receive
early dismissal instructions.
(b) In cases of contract performance at a Government facility
when the facility is closed, the vendor may arrange for performance
to continue during the closure at the contractor's site, if
appropriate.
(End of Clause)
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 (Oct 2023)
(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)
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 (Oct 2023)
(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 be notified when the ``Department
Information Security and Privacy Requirements'' have been updated.
(c) If any such change causes a material increase or decrease in
the cost of, or the time required for, performance of any part of
the work under this contract, whether or not changed by the order,
the Contractor may request an equitable adjustment to the contract
price or the delivery schedule, as applicable. The Contracting
Officer shall make an equitable adjustment in the contract price,
the delivery schedule, or both, and shall modify the contract.
(d) The Contractor must assert its right to an equitable
adjustment under this clause within 30 days from the date of receipt
of notice of the changed requirement. However, if the Contracting
Officer determines that the facts justify it, the Contracting
Officer may receive and act upon the Contractor's request for
equitable adjustment submitted before final payment of the contract.
Failure to agree to any adjustment shall be a dispute under the
Disputes clause. However, nothing in this clause shall excuse the
Contractor from proceeding with the contract as changed.
(e) 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.
(f) 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.
(g) 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),
[[Page 60564]]
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 Unclassified Information'' as defined in 32 CFR
2002.4(h).
(End of Clause)
3452.242-70 Litigation and claims.
As prescribed in 3442.7001, insert the following clause in all
solicitations and resultant cost-reimbursement contracts:
Litigation and Claims (Mar 2011)
(a) The contractor shall give the contracting officer immediate
notice in writing of--
(1) Any legal action, filed against the contractor arising out
of the performance of this contract, including any proceeding before
any administrative agency or court of law, and also including, but
not limited to, the performance of any subcontract hereunder; and
(2) Any claim against the contractor for cost that is allowable
under the ``allowable cost and payment'' clause.
(b) Except as otherwise directed by the contracting officer, the
contractor shall immediately furnish the contracting officer copies
of all pertinent papers received under that action or claim.
(c) If required by the contracting officer, the contractor
shall--
(1) Effect an assignment and subrogation in favor of the
Government of all the contractor's rights and claims (except those
against the Government) arising out of the action or claim against
the contractor; and
(2) Authorize the Government to settle or defend the action or
claim and to represent the contractor in, or to take charge of, the
action.
(d) If the settlement or defense of an action or claim is
undertaken by the Government, the contractor shall furnish all
reasonable required assistance. However, if an action against the
contractor is not covered by a policy of insurance, the contractor
shall notify the contracting officer and proceed with the defense of
the action in good faith.
(e) To the extent not in conflict with any applicable policy of
insurance, the contractor may, with the contracting officer's
approval, settle any such action or claim.
(f)(1) The Government shall not be liable for the expense of
defending any action or for any costs resulting from the loss
thereof to the extent that the contractor would have been
compensated by insurance that was required by law, regulation,
contract clause, or other written direction of the contracting
officer, but that the contractor failed to secure through its own
fault or negligence.
(2) In any event, unless otherwise expressly provided in this
contract, the contractor shall not be reimbursed or indemnified by
the Government for any cost or expense of liability that the
contractor may incur or be subject to by reason of any loss, injury,
or damage, to the person or to real or personal property of any
third parties as may arise from the performance of this contract.
(End of Clause)
3452.242-71 Notice to the Government of delays.
As prescribed in 3442.7002, insert the following clause in all
solicitations and contracts other than purchase orders:
Notice to the Government of Delays (Mar 2011)
The contractor shall notify the contracting officer of any
actual or potential situation, including but not limited to labor
disputes, that delays or threatens to delay the timely performance
of work under this contract. The contractor shall immediately give
written notice thereof, including all relevant information.
(End of Clause)
3452.242-73 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
As prescribed in 3442.7101(b), insert the following clause in all
solicitations and contracts:
Accessibility of Meetings, Conferences, and Seminars to Persons With
Disabilities (Mar 2011)
The contractor shall assure that any meeting, conference, or
seminar held pursuant to the contract will meet all applicable
standards for accessibility to persons with disabilities pursuant to
section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C.
794) and any implementing regulations of the Department.
(End of Clause)
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 (Oct 2023)
(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 shall 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)
3452.247-70 Foreign travel.
As prescribed in 3447.701, insert the following clause in all
solicitations and resultant cost-reimbursement contracts:
Foreign Travel (Mar 2011)
Foreign travel shall not be undertaken without the prior written
approval of the contracting officer. As used in this clause, foreign
travel means travel outside the Continental United States, as
defined in the Federal Travel Regulation. Travel to non-foreign
areas (including the States of Alaska and Hawaii, the Commonwealths
of Puerto Rico, Guam and the Northern Mariana Islands and the
territories and possessions of the United States) is considered
``foreign travel'' for the purposes of this clause.
(End of Clause)
[FR Doc. 2023-16918 Filed 8-31-23; 8:45 am]
BILLING CODE 4000-01-P
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</html>Indexed from Federal Register on September 1, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.