Proposed Rule2026-19159
Federal Acquisition Regulation: Revolutionary Federal Acquisition Regulation Overhaul Parts 9, 27, and 47
Primary source
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Published
September 18, 2026
Issuing agencies
Management and Budget OfficeFederal Procurement Policy OfficeDefense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
OFPP, DoD, GSA, and NASA (collectively referred to as the Federal Acquisition Regulatory Council or FAR Council) are proposing to amend the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 14275, Restoring Common Sense to Federal Procurement. The E.O. directs the elimination of excessive acquisition regulations to stop the inefficient use of American taxpayer dollars. The FAR Council is issuing twelve proposed rules that collectively, if finalized, would streamline the FAR in its entirety. This rule proposes revisions to FAR parts 9, 27, 47, and 52.
Full Text
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<title>Federal Register, Volume 91 Issue 180 (Friday, September 18, 2026)</title>
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[Federal Register Volume 91, Number 180 (Friday, September 18, 2026)]
[Proposed Rules]
[Pages 59584-59683]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19159]
[[Page 59583]]
Vol. 91
Friday,
No. 180
September 18, 2026
Part VII
Office of Management and Budget
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Office of Federal Procurement Policy
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Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 9, 27, et al.
Federal Acquisition Regulation: Revolutionary Federal Acquisition
Regulation Overhaul Parts 9, 27, and 47; Proposed Rule
Federal Register / Vol. 91 , No. 180 / Friday, September 18, 2026 /
Proposed Rules
[[Page 59584]]
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OFFICE OF MANAGEMENT AND BUDGET
Office of Federal Procurement Policy
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9, 27, 47, and 52
[FAR Case 2026-011, Docket No. FAR-2026-0011, Sequence No. 1]
RIN 9000-AO84
Federal Acquisition Regulation: Revolutionary Federal Acquisition
Regulation Overhaul Parts 9, 27, and 47
AGENCY: Office of Federal Procurement Policy (OFPP), Office of
Management and Budget (OMB); Department of Defense (DoD); General
Services Administration (GSA); and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: OFPP, DoD, GSA, and NASA (collectively referred to as the
Federal Acquisition Regulatory Council or FAR Council) are proposing to
amend the Federal Acquisition Regulation (FAR) to implement Executive
Order (E.O.) 14275, Restoring Common Sense to Federal Procurement. The
E.O. directs the elimination of excessive acquisition regulations to
stop the inefficient use of American taxpayer dollars. The FAR Council
is issuing twelve proposed rules that collectively, if finalized, would
streamline the FAR in its entirety. This rule proposes revisions to FAR
parts 9, 27, 47, and 52.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
October 19, 2026, to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2026-011 to the
Federal eRulemaking portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for sending comments.
Instructions: Please submit comments only and cite ``FAR Case 2026-
011'' in all correspondence related to this case. Include your name,
company name (if any), and ``FAR Case 2026-011'' on any attached
document. Comments received generally will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal and/or business
confidential information provided. Public comments may be submitted as
an individual, as an organization, or anonymously (see frequently asked
questions at <a href="https://www.regulations.gov/faq">https://www.regulations.gov/faq</a>). To confirm receipt of
your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
approximately two to three days after submission to verify posting.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov/FAR-2026-0011">https://www.regulations.gov/FAR-2026-0011</a>.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
<a href="/cdn-cgi/l/email-protection#a3e5e2f1d3cccfcac0dae3c4d0c28dc4ccd5"><span class="__cf_email__" data-cfemail="22646370524d4e4b415b624551430c454d54">[email protected]</span></a> or call 202-969-4075 and cite ``FAR Case 2026-011.''
For information pertaining to status, publication schedules, or
alternate instructions for submitting comments if <a href="https://www.regulations.gov">https://www.regulations.gov</a> cannot be used, contact the Regulatory Secretariat
Division at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#64233725360103370107240317054a030b12"><span class="__cf_email__" data-cfemail="5b1c081a093e3c083e381b3c283a753c342d">[email protected]</span></a>. Please cite ``FAR Case
2026-011.''
SUPPLEMENTARY INFORMATION:
I. Background
E.O. 14275, Restoring Common Sense to Federal Procurement (April
15, 2025), resets the foundation for Federal buying by requiring the
FAR Council to produce a streamlined FAR that is simpler, clearer, and
structured for speed. According to the E.O., the FAR has evolved from
its original purpose (i.e., to establish uniform procedures across
executive departments and agencies), into an excessive and
overcomplicated regulatory framework and bureaucracy. While meant to
``deliver, on a timely basis, the best value product or service to the
customer, while maintaining the public's trust and fulfilling public
policy objectives,'' the FAR has become an expensive barrier to
achieving those objectives. As a result, the E.O. directed the FAR
Council and OMB to create an agile, effective, and efficient regulation
that contains only provisions required by statute or essential to sound
procurement.
To implement E.O. 14275, OMB issued Memorandum M-25-26, Overhauling
the Federal Acquisition Regulation, which announced the ``Revolutionary
FAR Overhaul'' (RFO) and created a roadmap for producing simpler
regulations aligned to statute, rewritten in plain language, and
including nonstatutory requirements that are necessary to conducting a
sound procurement. The memorandum described a new streamlined vision
for the FAR, to be maintained alongside nonregulatory governmentwide
guidance to provide a common-sense authoritative foundation for nimble
response and delivery of mission capability.
This new vision represents a paradigm shift where over-engineered
regulations designed for paperwork and compliance are replaced with
streamlined regulations focused on core stewardship principles and
nonregulatory guidance that will be used in concert with the
streamlined FAR focused on proven buying strategies, critical thinking,
market awareness (including to expand awareness of goods, products, and
materials offered in the United States), and risk literacy to enhance
workforce problem-solving. The significant reduction of unnecessary
mandates is intended to clarify and reinforce the contracting officer's
discretion to determine the best way to apply policies and practices.
The newly established, nonregulatory guidance, which has been inspired
by acquisition innovation advocates, category managers, other
experienced practitioners, and many years of feedback from the
contractor community--is expected to facilitate contracting officers'
use of their discretion more efficiently and effectively to make
smarter buying decisions.
OMB Memorandum M-25-26 also directed the FAR Council to complete
the regulatory overhaul in two phases, each with robust public input.
The FAR Council conducted its phase one effort in fiscal year 2025 by
issuing model class deviations to replace each part in the FAR until
such time as formal rulemaking occurred. This proposed rule is one of a
series that constitute the FAR Council's phase two effort to obtain
public comment through formal rulemaking.
II. Discussion and Analysis
A summary of proposed changes to existing FAR parts 9, 27, and 47,
and their corresponding provisions and clauses in part 52 are as
follows:
A. General
1. General RFO updates. This proposed rule generally reorganizes
the FAR parts into phases of acquisition and simplifies the text into
plain language, where possible. The plain language efforts include
changes to active voice, edits to improve readability, and
reorganization to present information more logically. None of the plain
language edits are intended to change existing FAR requirements. The
rewriting of the entire FAR also required edits to harmonize the
changes being proposed such as updating the cross-
[[Page 59585]]
references. This aligns with Federal plain language guidelines as
directed by the Plain Writing Act of 2010 (5 U.S.C. 301 note).
2. Standardization of prescriptions. This rule proposes revisions
to standardize prescriptions for provisions and clauses. These changes
are intended to provide better clarity around the applicability of
provisions and clauses such as whether they apply to commercial
products and services.
3. Use of ``must'' instead of ``shall''. Additional revisions are
being proposed throughout the FAR text and FAR provisions and clauses
to replace the use of the term ``shall'' with ``must'' or ``will,'' as
appropriate, to impose requirements.
4. Non-statutory requirements. Section 4 of the E.O. required
amendments to the FAR to ensure it contains only provisions that are
required by statute or that are otherwise necessary to support
simplicity and usability, strengthen the efficacy of the procurement
system, or protect economic or national security. The FAR Council
reviewed all non-statutory requirements to determine if they are still
relevant and essential to sound procurement in today's contracting
environment based on the criteria from section 4 of the E.O. The
proposed rule retains non-statutory requirements that further one or
more of the elements of sound procurements, including those
requirements that serve as guardrails to protecting taxpayer interests
and promote taxpayer confidence in the procurement system. Non-
statutory requirements that were beneficial but not essential were
retained in the non-regulatory guidance documents. Other non-statutory
requirements that did not meet these standards, were removed. The
Council considered the extent to which regulation is the most efficient
means for capturing the benefit of the policy. For example, most ``how
to'' requirements were found to be more appropriately suited for non-
regulatory coverage which better enables a contracting officer to use
discretion in determining the application of a strategy to a given
situation and limits the risk of overapplication, which can create
wasteful burden on the contracting parties.
As part of the RFO, the FAR Council has created a number of non-
regulatory resources, including the FAR Companion, which provides
insight from experienced practitioners across the government on using
more streamlined practices and processes. The migration of significant
coverage to non-regulatory guidance is intended to ensure that the
benefits of the policy are not outweighed by the compliance burden of a
more rigidly written regulation that is prone to application in an
overly broad manner. This approach was explained to the public in a set
of ``frequently asked questions'' that were posted on the Revolutionary
FAR Overhaul homepage shortly after the initiative was launched.
B. FAR Part 9
1. Streamlining
This proposed rule would remove or relocate FAR content that is
outdated, redundant, or otherwise unnecessary. These revisions align
with the broader RFO initiatives and do not substantively change policy
or procedures in the part. FAR section 9.000 ``Scope of Part,'' is
proposed to be removed because the language is duplicative. The
definition of ``Surveying activity'' is proposed to be removed from FAR
section 9.101, ``Definitions,'' because the definition is unnecessary.
FAR section 9.104-2, ``Special Standards,'' is proposed to be removed
as unnecessary. FAR section 9.106, ``Preaward Surveys,'' is proposed to
be removed; this includes the reference to utilizing the Standard Form
1403, Preaward Survey of Prospective Contractor (General). FAR section
9.107, ``Surveys of Nonprofit Agencies Participating in the AbilityOne
Program,'' is proposed to be removed because the AbilityOne Program is
covered in FAR part 8, and nuances of pre-award surveys relevant to the
AbilityOne Program are now covered in nonregulatory content. FAR
subpart 9.6, ``Contractor Team Arrangements,'' is proposed to be
removed as unnecessary. FAR subpart 9.7, ``Defense Production Pools and
Research and Development Pools,'' is proposed to be removed. Lastly,
this rule proposes to revise FAR section 9.103-2(b), ``Satisfactory
performance record,'' for clarity.
2. Section 812(a)(6) of the National Defense Authorization Act for
Fiscal Year 2026
This rule would implement section 812(a)(6) of the National Defense
Authorization Act for Fiscal Year 2026 (Pub. L. 119-60). Section
812(a)(6) strikes 10 U.S.C. 3243(d)(2), which, where fewer than two
actual manufacturers were available to compete in a future procurement
involving a qualification requirement, required DoD agencies to make a
determination before bearing the cost for a small business and
prospective competitor to undergo the testing and evaluation necessary
to meet the qualification requirement. A corresponding requirement for
civilian agencies remains in effect at 41 U.S.C. 3311(d)(2). FAR
section 9.204(a)(2)(i) implements this requirement in the FAR. This
rule proposes to change FAR 9.204(a)(2)(i) to exclude DoD from the
requirement.
3. Implementation of Executive Order 14398
E.O. 14398 of March 26, 2026, Addressing DEI Discrimination by
Federal Contractors, was published in the Federal Register on March 31,
2026, at 91 FR 16147. E.O. 14398 establishes that agencies should not
do business with contractors that engage in any racially discriminatory
diversity, equity, and inclusion (DEI) activities. Section 5 of E.O.
14398 directs the FAR Council to amend the FAR to implement the
contract clause described in section 3 of the E.O. This rule proposes
to add noncompliance with the resulting FAR clause, 52.222-XX,
Addressing DEI Discrimination by Federal Contractors, to the list of
causes for debarment and suspension at FAR 9.406-2(b)(1) and 9.407-
2(a), respectively.
4. Other Editorials
FAR part 9 is proposed to be revised to remove reserved subparts,
sections, subsections and paragraphs and to renumber the retained
content to avoid numbering gaps.
FAR part 9 is proposed to be revised to replace the disused term
``Federal Awardee Performance and Integrity Information System,''
(FAPIIS) with ``integrity records.'' As part of its ongoing systems
modernization effort, GSA retired FAPIIS, and integrity records are now
accessed in <a href="http://SAM.gov">SAM.gov</a> and reported in <a href="http://CPARS.gov">CPARS.gov</a>. The paragraph at FAR
9.105-2(b)(2)(iii), describing this distinction, is proposed to
relocate to FAR 9.104-5.
The definition of ``Qualified products list (QPL)'' is proposed to
relocate from FAR subpart 2.1 to FAR subpart 9.2 because the term is
used only within the latter subpart. The definition itself remains
unchanged.
C. FAR Part 27
1. Overhaul of FAR Subpart 27.4
This rule proposes to delete FAR subpart 27.4, Rights in Data and
Copyrights, in its entirety, along with associated provisions and
clauses, and replace it with analogous content derived from the Defense
Federal Acquisition Regulation Supplement (DFARS). As revised, FAR
subpart 27.4 would be titled ``Technical Data, Computer Software,
Computer Software Documentation, and Associated Rights Related to Other
Than Commercial
[[Page 59586]]
Products, Components, Services, Processes, and Computer Software.''
This subpart would prescribe policies and procedures for the
acquisition of other-than-commercial technical data, computer software,
computer software documentation, and corresponding rights to use,
modify, reproduce, release, perform, display, or disclose technical
data. Further, this rule proposes to add DFARS-derived provisions and
clauses basically for use in other than commercial acquisitions.
To complement FAR subpart 27.4, this rule proposes to add FAR
subpart 27.5, titled ``Technical Data, Computer Software, Computer
Software Documentation, and Associated Rights Related to Commercial
Products and Computer Services.'' Further, this rule proposes to add
DFARS-derived provisions and clauses basically for use in commercial
acquisitions. This subpart, also derived from the DFARS, would
prescribe policies and procedures for the acquisition of commercial
technical data, computer software, and computer software documentation
related to commercial products, components, services, processes, and
computer software, and corresponding rights to use, modify, reproduce,
release, perform, display, or disclose such data or software.
This rule proposes therefore to replace existing FAR subpart 27.4
with two new subparts to bifurcate treatment of acquisitions of other
than commercial products and services and commercial products and
services.
2. Additional Patent-Related Clauses
This rule proposes to add to FAR subpart 52.2 two DFARS-derived
clauses: FAR 52.227-24, Patents--Reporting of Subject Inventions, and
FAR 52.227-25, Patent Rights--Ownership by the Contractor (Large
Business), to complement existing patent-related clauses, all of which
substantially remain. Clause prescriptions are added accordingly to FAR
subpart 27.3.
3. Small Business Innovation Research (SBIR) Program and Small Business
Technology Transfer (STTR) Program
This rule proposes to update coverage of the SBIR program and to
add coverage of the STTR program. This revised SBIR/STTR coverage would
align the FAR with the Small Business Administration (SBA) SBIR/STTR
Policy Directive, effective May 3, 2023. Accordingly, this rule
proposes to update the SBIR/STTR data protection period to a single,
non-extendable, 20-year period. This rule also proposes to grant the
Government a Government purpose rights license after the expiration of
the SBIR/STTR data protection period, rather than an unlimited rights
license, and it would establish or revise several definitions to
correspond to terminology used in the SBA Policy Directive.
4. Other Editorials
FAR part 27 is otherwise proposed to be revised to remove reserved
sections, subsections and paragraphs and to renumber the retained
content to avoid numbering gaps.
D. FAR Part 47
1. Streamlining
This rule proposes to revise FAR part 47 to eliminate outdated
requirements not derived from statute or executive order. These
revisions, including removing 33 clauses, align with the broader RFO
initiatives and do not substantively change policy or procedures in the
part.
FAR section 47.102, ``Transportation Insurance'', is proposed to be
deleted. FAR section 47.103-1 (renumbered as FAR 47.102-1), addressing
``Transportation Payment and Audit Regulation'', is proposed to be
updated from five paragraphs that detailed where and how to send paid
freight bills to the General Services Administration (GSA) for audit,
to a single sentence that states the statutory requirement for a
prepayment audit program and directs users to 41 CFR part 102-118 for
details. FAR section 47.105, ``Transportation Assistance'', is proposed
to be deleted. FAR subsection 47.301-2, ``Participation of
Transportation Officers'', is proposed to be deleted.
In FAR subsections 47.303-1 through 47.303-11, paragraph (b) of
each subsection, each titled ``Contractor Responsibilities,'' is
proposed to be removed because the content merely duplicates that found
in the relevant contract clauses. The paragraphs within these
subsections are proposed to be re-numbered accordingly.
The following sections or subsections are proposed to be removed
because the content duplicates contracting principles established in
other parts of the FAR or other regulations:
<bullet> FAR 47.202, Presolicitation Planning
<bullet> FAR 47.205, Availability of Term Contracts and Basic Ordering
Agreements for Transportation or for Transportation-related Services
<bullet> FAR 47.206, Preparation of Solicitations and Contracts
<bullet> FAR 47.207-2, Duration of Contract and Time of Performance
<bullet> FAR 47.207-10, Discrepancies Incident to Shipments
The following subsections are proposed to be removed because they
are not required by statute or executive order, and they are not
otherwise essential to sound procurement:
<bullet> FAR 47.303-12, Ex dock, pier, or warehouse, port of
importation
<bullet> FAR 47.303-13, C.& f. destination
<bullet> FAR 47.303-14, C.i.f. destination
<bullet> FAR 47.303-15, F.o.b. designated air carrier's terminal, point
of exportation
<bullet> FAR 47.303-16, F.o.b. designated air carrier's terminal, point
of importation
<bullet> FAR 47.303-17, Contractor-prepaid commercial bills of lading,
small package shipments
The following provisions and clauses are proposed to be removed
because they are not required by statute or executive order, and they
are not otherwise essential to sound procurement:
<bullet> FAR 52.247-3, Capability To Perform a Contract for the
Relocation of a Federal Office
<bullet> FAR 52.247-4, Inspection of Shipping and Receiving Facilities
<bullet> FAR 52.247-6, Financial Statement
<bullet> FAR 52.247-7, Freight Excluded
<bullet> FAR 52.247-9, Agreed Weight--General Freight
<bullet> FAR 52.247-12, Supervision, Labor, or Materials
<bullet> FAR 52.247-14, Contractor Responsibility for Receipt of
Shipment
<bullet> FAR 52.247-16, Contractor Responsibility for Returning
Undelivered Freight
<bullet> FAR 52.247-20, Estimated Quantities or Weights for Evaluation
of Offers
<bullet> FAR 52.247-24, Advance Notification by the Government
<bullet> FAR 52.247-25, Government-Furnished Equipment With or Without
Operators
<bullet> FAR 52.247-26, Government Direction and Marking
<bullet> FAR 52.247-27, Contract Not Affected by Oral Agreement
<bullet> FAR 52.247-28, Contractor's Invoices
<bullet> FAR 52.247-40, Ex Dock, Pier, or Warehouse, Port of
Importation
<bullet> FAR 52.247-41, C.& f. Destination
<bullet> FAR 52.247-42, C.i.f. Destination
<bullet> FAR 52.247-43, F.o.b. Designated Air Carrier's Terminal, Point
of Exportation
<bullet> FAR 52.247-44, F.o.b. Designated Air Carrier's Terminal, Point
of Importation
<bullet> FAR 52.247-45, F.o.b. Origin and/or F.o.b. Destination
Evaluation
<bullet> FAR 52.247-46, Shipping Point(s) Used in Evaluation of F.o.b.
Origin Offers
<bullet> FAR 52.247-47, Evaluation--F.o.b. Origin
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<bullet> FAR 52.247-49, Destination Unknown
<bullet> FAR 52.247-50, No Evaluation of Transportation Costs
<bullet> FAR 52.247-51, Evaluation of Export Offers
<bullet> FAR 52.247-55, F.o.b. Point for Delivery of Government-
Furnished Property
<bullet> FAR 52.247-57, Transportation Transit Privilege Credits
<bullet> FAR 52.247-59, F.o.b. Origin--Carload and Truckload Shipments
<bullet> FAR 52.247-60, Guaranteed Shipping Characteristics
<bullet> FAR 52.247-61, F.o.b. Origin--Minimum Size of Shipments
<bullet> FAR 52.247-62, Specific Quantities Unknown
<bullet> FAR 52.247-65, F.o.b. Origin, Prepaid Freight--Small Package
Shipments
<bullet> FAR 52.247-66, Returnable Cylinders
2. Other Editorials
FAR part 47 is otherwise proposed to be revised to remove reserved
sections, subsections and paragraphs and to renumber the retained
content to avoid numbering gaps.
E. FAR Part 52 Renumbering
As a result of the RFO, the FAR Council is considering establishing
a new FAR subpart in part 52 and relocating and renumbering all
provisions and clauses under this new subpart. This means, if subpart
52.4 were used, all provisions and clauses would begin with 52.4
instead of 52.2. This change is anticipated to prevent confusion and
increase compliance by creating a clear distinction between versions of
a provision or clause prior to the RFO. Other benefits include avoiding
potential clause numbering conflicts and information system and data
collection impacts. The FAR Council welcomes comments on the potential
impact of such a change on contractors, Government personnel, and other
stakeholders.
III. Applicability to Contracts and Subcontracts Valued at or Below the
Simplified Acquisition Threshold and for Commercial Products and
Commercial Services
The following sections address the applicability of provisions and
clauses prescribed in FAR parts 9, 27, and 47 to solicitations and
contracts valued at or below the simplified acquisition threshold (SAT)
and those for the acquisition of commercial products, commercially
available off-the-shelf (COTS) items, and commercial services.
Prescriptions for provisions and clauses in these parts have been
updated to reflect applicability to commercial acquisitions.
A. Contracts and Subcontracts Valued at or Below the Simplified
Acquisition Threshold
This proposed rule, if finalized, does not alter the prescriptions
of provisions and clauses included in this proposed rule to change
their applicability to contracts and subcontracts valued at or below
the SAT.
B. Contracts and Subcontracts for Commercial Products, Commercially
Available Off-the-Shelf Items, and Commercial Services
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial products and commercial services and
gives the FAR Council the authority to determine to apply a law to
contracts or subcontracts for the acquisition of commercial products
and commercial services. 41 U.S.C. 1907 exempts contracts for
commercially available off-the-shelf (COTS) items from certain
provisions of law unless the Administrator for Federal Procurement
Policy determines that doing so would not be in the best interest of
the Federal Government.
Section 839 of the John S. McCain National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232) required the FAR
Council and the Administrator of Federal Procurement Policy to review
prior determinations under 41 U.S.C. 1906 and 41 U.S.C. 1907, as well
as the applicability of provisions and clauses to contracts and
subcontracts for commercial products, COTS items, and commercial
services that do not implement statute or Executive order, and propose
amendments to the FAR to eliminate or exempt such requirements from
commercial acquisitions, unless there are specific reasons to retain
particular requirements.
In accordance with section 839 of the NDAA for FY 2019 and their
authorities under 41 U.S.C. 1906 and 1907, the FAR Council reviewed the
applicability of the provisions and clauses associated with the FAR
parts covered by this proposed rule.
The following table reflects the FAR Council and Administrator of
Federal Procurement Policy's proposed determination regarding the
applicability of the provisions and clauses to solicitations and
contracts for commercial products, COTS items, and/or commercial
services. In making proposed applicability determinations, the FAR
Council considered factors such as whether the provision or clause
advances national security or economic security, contributes to the
resilience of contractors and subcontractors in the federal
marketplace, or advances uniformity and clarity in the performance of
basic functions that are essential to sound procurement.
Accordingly, this proposed rule, if finalized, would revise
provision and clause prescriptions to clearly reflect applicability to
commercial acquisitions as outlined in the table. An ``X'' in the
following table indicates the provision or clause would apply to that
category of commercial acquisition, as prescribed:
----------------------------------------------------------------------------------------------------------------
Commercial Commercial
Provision/clause No. Title products services COTS items
----------------------------------------------------------------------------------------------------------------
52.209-1.......................... Qualification X X ...............
Requirements.
52.209-2.......................... Prohibition on X X X
Contracting With
Inverted Domestic
Corporations-
Representation.
52.209-3.......................... First Article Approval- X X ...............
Contractor Testing.
52.209-3 Alt I.................... First Article Approval- X X ...............
Contractor Testing.
52.209-3 Alt II................... First Article Approval- X X ...............
Contractor Testing.
52.209-4.......................... First Article Approval- ............... ............... ...............
Government Testing.
52.209-4 Alt I.................... First Article Approval- ............... ............... ...............
Government Testing.
52.209-4 Alt II................... First Article Approval- ............... ............... ...............
Government Testing.
52.209-5.......................... Certification Regarding X X X
Responsibility Matters.
52.209-6.......................... Protecting the X X ...............
Government's Interest
When Subcontracting With
Contractors Debarred,
Suspended, Proposed for
Debarment, or
Voluntarily Excluded.
52.209-6 Alt I.................... Protecting the X ............... ...............
Government's Interest
When Subcontracting With
Contractors Debarred,
Suspended, Proposed for
Debarment, or
Voluntarily Excluded.
[[Page 59588]]
52.209-7.......................... Information Regarding X X X
Responsibility Matters.
52.209-9.......................... Updates of Publicly X X X
Available Information
Regarding Responsibility
Matters.
52.209-10......................... Prohibition on X X X
Contracting With
Inverted Domestic
Corporations.
52.209-11......................... Representation by X X X
Corporations Regarding
Delinquent Tax Liability
or a Felony Conviction
under any Federal Law.
52.209-12......................... Certification Regarding X X X
Tax Matters.
52.209-13......................... Violation of Arms Control ............... ............... ...............
Treaties or Agreements-
Certification.
52.209-14......................... Reserve Officer Training ............... ............... ...............
Corps and Military
Recruiting on Campus.
52.227-1.......................... Authorization and Consent X X X
52.227-1 Alt I.................... Authorization and Consent ............... ............... ...............
52.227-1 Alt II................... Authorization and Consent ............... X ...............
52.227-2.......................... Notice and Assistance X X X
Regarding Patent and
Copyright Infringement.
52.227-3.......................... Patent Indemnity......... ............... ............... ...............
52.227-3 Alt I.................... Patent Indemnity......... ............... ............... ...............
52.227-3 Alt II................... Patent Indemnity......... ............... ............... ...............
52.227-3 Alt III.................. Patent Indemnity......... ............... ............... ...............
52.227-4.......................... Patent Indemnity- ............... X ...............
Construction Contracts.
52.227-4 Alt I.................... Patent Indemnity- ............... ............... ...............
Construction Contracts.
52.227-5.......................... Waiver of Indemnity...... X X X
52.227-6.......................... Royalty Information...... ............... ............... ...............
52.227-6 Alt I.................... Royalty Information...... ............... ...............
52.227-9.......................... Refund of Royalties...... ............... ............... ...............
52.227-10......................... Filing of Patent X X X
Applications-Classified
Subject Matter.
52.227-11......................... Patent Rights-Ownership X X X
by the Contractor.
52.227-11 Alt I................... Patent Rights-Ownership X X X
by the Contractor.
52.227-11 Alt II.................. Patent Rights-Ownership X X X
by the Contractor.
52.227-11 Alt III................. Patent Rights-Ownership X X X
by the Contractor.
52.227-11 Alt IV.................. Patent Rights-Ownership X X X
by the Contractor.
52.227-11 Alt V................... Patent Rights-Ownership X X X
by the Contractor.
52.227-13......................... Patent Rights-Ownership X X X
by the Government.
52.227-13 Alt I................... Patent Rights-Ownership X X X
by the Government.
52.227-13 Alt II.................. Patent Rights-Ownership X X X
by the Government.
52.227-24......................... Patents--Reporting of X X X
Subject Inventions.
52.227-25......................... Patent Rights--Ownership X X X
by the Contractor (Large
Business).
52.227-25 Alt I................... Patent Rights--Ownership X X X
by the Contractor (Large
Business).
52.227-25 Alt II.................. Patent Rights--Ownership X X X
by the Contractor (Large
Business).
52.227-26......................... Rights in Technical Data, X X X
Computer Software, and
Computer Software
Documentation--Other
Than Commercial Products
and Commercial Services.
52.227-26 Alt I................... Rights in Technical Data, X X X
Computer Software, and
Computer Software
Documentation--Other
Than Commercial Products
and Commercial Services.
52.227-26 Alt II.................. Rights in Technical Data, X X X
Computer Software, and
Computer Software
Documentation--Other
Than Commercial Products
and Commercial Services.
52.227-27......................... Technical Data-- X X X
Commercial Products and
Commercial Services.
52.227-27 Alt I................... Technical Data-- X X X
Commercial Products and
Commercial Services.
52.227-28......................... Rights in Bid or Proposal X X X
Information.
52.227-29......................... Identification and X X X
Assertion of Use,
Release, or Disclosure
Restrictions.
52.227-30......................... Rights in Other Than X X X
Commercial Technical
Data and Other Than
Commercial Computer
Software--Small Business
Innovation Research
Program and Small
Business Technology
Transfer Program.
52.227-31......................... Limitations on the Use or X X X
Disclosure of Government-
Furnished Information
Marked with Restrictive
Legends.
52.227-32......................... Deferred Ordering of X X X
Technical Data or
Computer Software.
52.227-33......................... Technical Data or X X X
Computer Software
Previously Delivered to
the Government.
52.227-34......................... Technical Data-- X X X
Withholding of Payment.
52.227-35......................... Validation of Asserted X X X
Restrictions.
52.227-36......................... Additional Preaward X X X
Requirements for Small
Business Technology
Transfer Program.
52.227-37......................... Additional Postaward X X X
Requirements for Small
Business Technology
Transfer Program.
52.247-1.......................... Commercial Bill of Lading X X X
Notations.
52.247-2.......................... Permits, Authorities, or X X X
Franchises.
52.247-5.......................... Familiarization with X X X
Conditions.
52.247-8.......................... Estimated Weights or X X X
Quantities Not
Guaranteed.
52.247-10......................... Net Weight-General X X X
Freight.
52.247-11......................... Net Weight-Household X X X
Goods or Office
Furniture.
52.247-13......................... Accessorial Services- X X X
Moving Contracts.
52.247-15......................... Contractor Responsibility X X X
for Loading and
Unloading.
[[Page 59589]]
52.247-17......................... Charges.................. X X X
52.247-18......................... Multiple Shipments....... X X X
52.247-19......................... Stopping in Transit for X X X
Partial Unloading.
52.247-21......................... Contractor Liability for X X X
Personal Injury and/or
Property Damage..
52.247-22......................... Contractor Liability for X X X
Loss of and/or Damage to
Freight other than
Household Goods.
52.247-23......................... Contractor Liability for X X X
Loss of and/or Damage to
Household Goods.
52.247-29......................... F.o.b. Origin............ ............... ............... ...............
52.247-30......................... F.o.b. Origin, ............... ............... ...............
Contractor's Facility.
52.247-31......................... F.o.b. Origin, Freight ............... ............... ...............
Allowed.
52.247-32......................... F.o.b. Origin, Freight ............... ............... ...............
Prepaid.
52.247-33......................... F.o.b. Origin, with ............... ............... ...............
Differentials.
52.247-34......................... F.o.b. Destination....... ............... ............... ...............
52.247-35......................... F.o.b. Destination, ............... ............... ...............
Within Consignee's
Premises.
52.247-36......................... F.a.s. Vessel, Port of ............... ............... ...............
Shipment.
52.247-37......................... F.o.b. Vessel, Port of ............... ............... ...............
Shipment.
52.247-38......................... F.o.b. Inland Carrier, ............... ............... ...............
Point of Exportation.
52.247-39......................... F.o.b. Inland Point, ............... ............... ...............
Country of Importation.
52.247-48......................... F.o.b. Destination- X X X
Evidence of Shipment.
52.247-52......................... Clearance and X X X
Documentation
Requirements-Shipments
to DoD Air or Water
Terminal Transshipment
Points.
52.247-53......................... Freight Classification X X X
Description.
52.247-56......................... Transit Arrangements..... X X X
52.247-58......................... Loading, Blocking, and X X X
Bracing of Freight Car
Shipments.
52.247-63......................... Preference for U.S.-Flag ............... X ...............
Air Carriers.
52.247-64......................... Preference for Privately X X X
Owned U.S.-Flag
Commercial Vessels.
52.247-64 Alt I................... Preference for Privately X X X
Owned U.S.-Flag
Commercial Vessels.
52.247-64 Alt II.................. Preference for Privately X X X
Owned U.S.-Flag
Commercial Vessels.
52.247-67......................... Submission of ............... ............... ...............
Transportation Documents
for Audit.
52.247-68......................... Report of Shipment X X X
(REPSHIP).
52.247-69......................... Reporting Requirement for ............... X ...............
U.S.-Flag Air Carriers
Regarding Training to
Prevent Human
Trafficking.
----------------------------------------------------------------------------------------------------------------
The FAR Council also reviewed subcontract flow down requirements in
clauses associated with the FAR parts covered by this proposed rule.
The following table reflects the FAR Council and Administrator of
Federal Procurement Policy's proposal regarding whether those clauses
flow down to subcontracts for commercial products, COTS items, and/or
commercial services. This proposed rule, if finalized, would revise the
subcontract paragraphs in these clauses to clearly state whether the
clause flows down to commercial subcontracts, as outlined in the table.
An ``X'' in the following table indicates the provision or clause would
apply to subcontracts for that category of commercial subcontracts, as
described in the clause:
----------------------------------------------------------------------------------------------------------------
Commercial Commercial
Clause No. Title products services COTS items
----------------------------------------------------------------------------------------------------------------
52.209-6.......................... Protecting the X X ...............
Government's Interest
When Subcontracting With
Contractors Debarred,
Suspended, Proposed for
Debarment, or
Voluntarily Excluded.
52.209-6 Alt I.................... Protecting the X ............... ...............
Government's Interest
When Subcontracting With
Contractors Debarred,
Suspended, Proposed for
Debarment, or
Voluntarily Excluded.
52.227-1.......................... Authorization and Consent X X X
52.227-1 Alt I.................... Authorization and Consent X X X
52.227-1 Alt II................... Authorization and Consent X X X
52.227-2.......................... Notice and Assistance X X X
Regarding Patent and
Copyright Infringement.
52.227-9.......................... Refund of Royalties...... ............... ............... ...............
52.227-10......................... Filing of Patent X X X
Applications-Classified
Subject Matter.
52.227-11......................... Patent Rights-Ownership ............... ............... ...............
by the Contractor.
52.227-11 Alt I................... Patent Rights-Ownership ............... ............... ...............
by the Contractor.
52.227-11 Alt II.................. Patent Rights-Ownership ............... ............... ...............
by the Contractor.
52.227-11 Alt III................. Patent Rights-Ownership ............... ............... ...............
by the Contractor.
52.227-11 Alt IV.................. Patent Rights-Ownership ............... ............... ...............
by the Contractor.
52.227-11 Alt V................... Patent Rights-Ownership ............... ............... ...............
by the Contractor.
52.227-13......................... Patent Rights-Ownership ............... ............... ...............
by the Government.
52.227-13 Alt I................... Patent Rights-Ownership ............... ............... ...............
by the Government.
52.227-13 Alt II.................. Patent Rights-Ownership ............... ............... ...............
by the Government.
52.227-25......................... Patent Rights--Ownership ............... ............... ...............
by the Contractor (Large
Business).
52.227-25 Alt I................... Patent Rights--Ownership ............... ............... ...............
by the Contractor (Large
Business).
52.227-25 Alt II.................. Patent Rights--Ownership ............... ............... ...............
by the Contractor (Large
Business).
[[Page 59590]]
52.227-26......................... Rights In Technical Data, X X X
Computer Software, and
Computer Software
Documentation--Other
Than Commercial Products
and Commercial Services.
52.227-27......................... Technical Data-- X X X
Commercial Products and
Commercial Services.
52.227-28......................... Rights in Bid or Proposal X X X
Information.
52.227-30......................... Rights in Other Than X X X
Commercial Technical
Data and Other than
Commercial Computer
Software-Small Business
Innovation Research
Program and Small
Business Technology
Transfer Program.
52.227-35......................... Validation of Asserted X X X
Restrictions.
52.247-63......................... Preference for U.S.-Flag ............... X ...............
Air Carriers.
52.247-64......................... Preference for Privately X X X
Owned U.S.-Flag
Commercial Vessels.
52.247-64 Alt I................... Preference for Privately X X X
Owned U.S.-Flag
Commercial Vessels.
52.247-64 Alt II.................. Preference for Privately X X X
Owned U.S.-Flag
Commercial Vessels.
----------------------------------------------------------------------------------------------------------------
IV. Expected Impact of the Rule
A. Overview
The intended impact of the RFO, as stated in E.O. 14275, is to
restore the Government's ability to ``deliver on a timely basis the
best value product or service to the customer, while maintaining the
public's trust and fulfilling public policy objectives.'' Each of the
RFO rulemakings is designed to contribute to this impact by emphasizing
mission first, by aligning acquisition activities directly to achieving
the agency's overarching objectives and serving the public interest and
elevating the importance of fiscal responsibility. The proposed RFO
rules focus on three goals in particular: (1) timely acquisition and
delivery, (2) lower cost and accountability in all spending, and (3)
increased competition.
Timeliness. Timely acquisition and delivery are essential for
mission success. To this end, RFO rules propose to eliminate mandates
that unnecessarily interfere with agency discretion to determine the
best way to procure products and services. The proposed RFO rules
highlight more clearly streamlined and simplified authorities that
allow buyers to use their time more efficiently and are expected to
reduce time between solicitation and award. The proposed RFO rules are
expected to make it easier for contracting officers to leverage
commercial practices that are familiar to the commercial marketplace.
This is expected to make it easier for sellers to engage and respond to
Government solicitations more rapidly.
Lower cost. E.O. 14271, Ensuring Commercial, Cost-Effective
Solutions in Federal Contracts (April 15, 2025), directs the Government
to utilize, to the maximum extent practicable, the commercial
marketplace and the innovations of private enterprise to provide
better, more cost-effective services to taxpayers, as envisioned by the
Federal Acquisition Streamlining Act. The procurement of custom
products and services where a suitable or superior commercial solution
would have fulfilled the Government's needs has resulted in avoidable
waste to the detriment of American taxpayers.
To address these concerns, consistent with associated
responsibilities in section 839 of the John S. McCain National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232),
the FAR Council reviewed prescriptions for provisions and clauses to
ensure all prescriptions are clear regarding their applicability to
acquisitions for commercial products and services. Currently, many
prescriptions do not specify applicability to commercial acquisitions
and leave the applicability determination to contracting officer
interpretation. By specifically stating when a provision or clause can
be applied to commercial acquisitions, proposed RFO rules should
decrease the likelihood of inclusion of provisions and clauses in
commercial acquisitions that are not required by law and drive greater
consistency in the terms and conditions used in these contracts. In
turn, these changes should increase the participation of commercial
sellers, who are unwilling or unable to manage the cost of complying
with noncommercial requirements, and also improve taxpayer access to
affordable commercial solutions.
Some RFO rules propose to delete requirements placed on commercial
or noncommercial sellers that are not related to performance of the
contract, drive up cost without attendant performance benefits, and may
misdirect efforts away from innovation, investment and economic growth.
Greater emphasis on timeliness should reduce bidders' carrying costs,
enabling them to pass those savings on to customers through lower
prices.
Increased competition. Since enactment of the Competition in
Contracting Act of 1984 (Title VII of Pub. L. 98-369), competition has
been the cornerstone of the Federal acquisition system. The benefits of
competition are well established: competition saves money for the
taxpayer, improves contractor performance, curbs fraud, and promotes
accountability for results. Competition also drives contractor
resilience and positions the U.S. market to develop a strategic
advantage for the nation.
According to data in the SAM Contract Award Management, roughly 45
percent of contract dollars were awarded in FY 2025 either without
competition or with competition that received only one offer. Of equal
concern, the Federal marketplace has seen a significant decline over
the past 20 years in the number of businesses--especially small
businesses--participating in the Federal supplier base. Studies suggest
that high compliance costs lead to the misallocation of resources away
from more profitable activities and discourage innovation, investment,
and economic growth (Council of Economic Advisers, Executive Office of
the President. June 2025. The Economic Benefits of Current Deregulatory
Policies. <a href="https://www.whitehouse.gov/wp-content/uploads/2025/03/The-Economic-Benefits-of-Current-Deregulatory-Efforts.pdf">https://www.whitehouse.gov/wp-content/uploads/2025/03/The-Economic-Benefits-of-Current-Deregulatory-Efforts.pdf</a>). This may
shelter incumbent contractors and stifle competition, reducing startup
activity and job formation.
The RFO rules seek to increase participation in agency competitions
and the resilience of the Federal supplier base, which includes
commercial entities, small businesses, manufacturers, and
nontraditional suppliers. The RFO will achieve this outcome by removing
regulatory mandates that are not rooted in statute or essential to
sound procurement, promoting greater reliance on practices that reduce
transaction costs, and improving the quality of
[[Page 59591]]
communications with offerors and potential offerors. Access to a
broader range of solutions in a more dynamic marketplace will drive
better return for each taxpayer dollar spent and increase taxpayer
confidence in the Federal acquisition system.
B. Impact of Rule
The Government has conducted a regulatory impact analysis (RIA) for
the RFO rulemaking inclusive of this proposed rule for FAR parts 9, 27,
and 47. The RIA includes a discussion of the anticipated effects of the
rulemakings as follows:
1. FAR Part 9
This proposed rule, if finalized, is not expected to have a
significant impact on contractors or subcontracts. The proposed changes
to FAR part 9 consist basically of removal of non-statutory material,
streamlining and plain-language rewriting.
2. FAR Part 27
The proposed changes to part 27 are expected to have a significant
positive impact on both industry and the Government.
Alignment with the DFARS. Aligning the FAR to the DFARS with regard
to data rights would lower costs for contractors because they would
spend less time determining application of data rights by contractor
employees and outside consultants. This follows from the DFARS-derived
content providing clear definitions, better organized guidance, and
simple determinations of applicable data rights (i.e., the source of
funds and specific categories). The DFARS-derived content ensures
contractors receive adequate data rights for technology developed with
both Government and private funds by granting government purpose rights
(GPR) whereas the FAR lacks this category. The conceptual lack of GPR
in the FAR often results in uncertainty or inadequate data rights.
Further, ensuring contractors receive adequate data rights for
commercial technology through separate clauses for commercial
acquisitions and other than commercial acquisitions. This alignment
would also create economies of scale for contractors from having to
train employees, and hiring outside consultants, to operate within a
single system of data rights, across all agencies (e.g., standardized
markings), rather than essentially two systems of data rights. This
would ultimately reduce burden on industry, including small business.
The Government would also benefit from aligning the FAR to the
DFARS. Adopting the DFARS-derived data rights guidance and clauses at
civilian agencies would provide better options for data rights when
acquiring emerging technology. Civilian agencies would receive robust
data rights and would not have to spend additional funds to acquire
data rights in the future or be locked into sole-source vendors. The
acquisition workforce and Government attorneys would spend less time
determining application of data rights resulting from clear
definitions, better organized guidance, and simpler determination of
applicable data rights. This proposed change would also provide the
Government with unlimited rights in eleven different categories of
data, while the FAR currently provides unlimited data for only four
categories. This proposed change provides clarity regarding Government
rights in data developed with both Government and contractor funding.
Aligning the FAR to DFARS would better allow the Government to buy as a
single entity because it allows both for standardized buying and for
economies of scale that are impossible with different sets of data
rights. Finally, contractors would be more likely to lower prices if
they have more assurance that they would receive adequate data rights
and that their data would be better protected.
SBIR/STTR. By updating SBIR coverage in part 27, and by adding STTR
coverage, this rule proposes to align the FAR with the current SBA
SBIR/STTR Policy Directive. This includes updating the SBIR/STTR data
protection period to a single, non-extendable 20-year period, rather
than an extendable 4-year period. The proposed rule also provides the
Government with perpetual GPR license rights after the expiration of
the SBIR/STTR data protection period, rather than unlimited rights. In
addition, the proposed rule implements STTR-unique requirements in the
SBIR/STTR Policy Directive related to allocation of IP rights between
partnering institutions and contractors under the STTR program. The
proposed rule therefore impacts both contractor and Government license
rights in SBIR/STTR data while respecting existing data rights.
The SBIR/STTR Policy Directive emphasizes the need to protect the
IP interests of small businesses. Accordingly, this proposed rule, if
finalized, provides a transparent and consistent markings framework
that permits the Government to easily identify and resolve
inadvertently omitted restrictive markings. This allows the Government
to better protect the IP interests of our small-business industry
partners.
3. FAR Part 47
This proposed rule, if finalized, is expected to have a positive
impact on both industry and the Government. This rule removes a large
quantity of non-statutory material, including thirty-three provisions
and clauses. These changes are intended to benefit and to reduce burden
on both Government and contractors.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under Section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VI. Executive Order 14192
This rule is subject to E.O. 14192, Unleashing Prosperity Through
Deregulation. This proposed rule, if finalized as proposed, is
anticipated to be an E.O. 14192 deregulatory rule. See discussion in
the ``Expected Impact of the Rule'' section of this preamble.
VII. Regulatory Flexibility Act
This proposed rule, if finalized, may have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act 5 U.S.C. 601-612. However, an Initial
Regulatory Flexibility Analysis (IRFA) is as follows:
1. Reasons for the action.
Executive Order (E.O.) 14275, Restoring Common Sense to Federal
Procurement, directs the elimination of excessive acquisition
regulations to stop the inefficient use of American taxpayer dollars.
The E.O. directs the first comprehensive end-to-end overhaul of the FAR
in its 40-year history. The E.O. establishes the policy that the FAR
should ``contain only provisions that are required by statute or that
are otherwise necessary to support simplicity and usability, strengthen
the efficacy of the procurement system, or protect economic or national
security interests.'' In response to E.O. 14275, the Office of
Management and Budget issued memorandum M-25-26, Overhauling the
Federal Acquisition Regulation. The Memo directed the FAR Council to
[[Page 59592]]
complete a ``revolutionary overhaul'' of the FAR. Therefore, the FAR
Council is issuing twelve proposed rules that collectively, if
finalized, would streamline the FAR in its entirety.
2. Objectives of, and legal basis for, the rule.
The revolutionary FAR overhaul (RFO) rewrite represents a paradigm
shift in federal acquisition. It emphasizes streamlining, clarity, and
accessibility, while ensuring that the regulation focuses only on
statutory mandates and foundational procurement principles. The RFO is
designed to simplify compliance for contracting professionals, improve
acquisition speed and agility, and reinforce mission outcomes over
process formalities.
The basis for the RFO is E.O. 14275. The authority for promulgation
of the FAR is 41 U.S.C. 1121(b); 40 U.S.C. 121(c); 10 U.S.C. chapter 4
and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016); and
51 U.S.C. 20113.
3. Description of and an estimate of the number of small entities
to which the rule will apply.
All small business concerns who want to contract with the Federal
Government would need to familiarize themselves with the reorganized,
streamlined, and revised FAR, including the content of this rulemaking.
As of January 2026, there are 401,196 entities registered in the System
for Award Management (SAM) that were small for at least one North
American Industry Classification System (NAICS) code they had selected.
a. FAR Part 9.
The proposed changes to FAR part 9 consist generally of removing
non-statutory content and plain-language rewriting. These revisions
align with the broader RFO initiatives and do not substantively change
policy. These revisions are not expected significantly to impact small
businesses.
b. FAR Part 27.
The proposed changes to part 27 consist primarily of replacing the
current FAR data-rights coverage and replacing it with analogous,
DFARS-based coverage. This rule also proposes to add a new solicitation
provision and a contract clause applicable to STTR awards where no such
coverage has existed in the FAR.
c. FAR Part 47.
The proposed changes to FAR part 47 consist generally of removing
non-statutory content, streamlining retained content, and plain-
language rewriting. These revisions align with the broader RFO
initiatives and do not substantively change policy. These revisions are
not expected significantly to impact small businesses.
4. Description of projected reporting, recordkeeping, and other
compliance requirements of the rule.
Unless stated otherwise below, this proposed rule does not create
any new reporting or recordkeeping requirements, nor does it create any
new compliance requirements.
a. FAR Part 27.
This proposed rule alters reporting or recordkeeping or other
compliance requirements. The proposed changes to part 27 consist
primarily of replacing the current FAR data-rights coverage and
replacing it with analogous, DFARS-based coverage. Reporting or
recordkeeping or other compliance requirements are largely similar to
those in the superseded FAR material. Some requirements are currently
contained in FAR clauses, such as 52.227-17, Rights in Data-Special
Works, that have no analogue in the DFARS-based material, and such
requirements are therefore removed from the FAR. By updating SBIR
coverage and by adding STTR coverage, this rule benefits small entities
particularly by emphasizing protection of small entities' intellectual
property, therefore balancing any additional compliance requirements
under the rule. While the changes in reporting or recordkeeping or
other compliance requirements entail familiarizations costs, such costs
are difficult to quantify. Additionally, by aligning FAR and DFARS
data-right requirements, this rule, if finalized, would ultimately
reduce burden on industry, including small entities.
b. FAR Part 47.
This proposed rule removes reporting, recordkeeping or other
compliance requirements to the extent such requirements lie in clauses
removed by this rule, specifically:
<bullet> The requirement under 52.247-6 for offerors to furnish the
Government with a current certified statement of the offeror's
financial condition and such data as the Government may request with
respect to the offeror's operations.
<bullet> The requirement under 52.247-51 for offerors to nominate a
port/terminal of loading they recommend for the purposes of evaluation
of their offer and indicate whether the prices proposed are based on
f.o.b. origin or f.o.b. destination.
<bullet> The requirement under 52.247-57 for offerors to identify
any transportation charges, including any transit charges, that the
offeror agrees to pay, subject to reimbursement by the Government.
<bullet> The requirement under 52.247-60 for offerors to provide
details on the shipping container(s) to be used for each part or
component that is packed or packaged separately.
<bullet> Requirements under 52.247-41, 52.247-42, 52.247-43,
52.247-44, and 52.247-65 for contractors to prepare or provide special
annotation on a Government or commercial bill of lading; provide an
ocean bill of lading or airway bill; annotate commercial shipping
documents; distribute copies of the bill of lading; provide applicable
transportation receipts; assist in obtaining documents for exportation
or importation destinations; and/or obtain insurance documents, as
applicable.
5. Relevant Federal rules which may duplicate, overlap, or conflict
with the rule.
The proposed rule, if finalized, would not duplicate, overlap, or
conflict with other Federal rules.
6. Description of any significant alternatives to the rule which
accomplish the stated objectives of applicable statutes, and which
minimize any significant economic impact of the rule on small entities.
The FAR Council has not, at this stage, identified any significant
alternatives that would minimize the impact of the rule on small
entities while also implementing the requirements of E.O. 14275. The
FAR Council will consider any significant alternatives identified by
commenters for the final rule.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. The FAR Council invites comments from small
business concerns and other interested parties on the expected impact
of this proposed rule on small entities.
The FAR Council will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite ``5 U.S.C. 610 (FAR Case 2026-
011)'' in correspondence.
VIII. Paperwork Reduction Act
This rule includes information collections under the Paperwork
Reduction Act (44 U.S.C. 3501-3521). Following are the specific
collections associated with each FAR part in this rule as previously
approved by OMB followed by how each collection would be affected by
the proposed rule.
[[Page 59593]]
A. FAR Part 9
OMB Control No 9000-0198, Certain Federal Acquisition Regulation
Part 9 Requirements.
The changes under this proposed rule, if finalized, would not
affect the information collection or the paperwork burden previously
approved by OMB. The collection would remain unchanged.
B. FAR Part 27
OMB Control No. 9000-0095, Federal Acquisition Regulation Part 27
Requirements.
The changes under this proposed rule, if finalized, would revise
this information collection and the paperwork burden previously
approved by OMB. As explained in section II.C.1 of this preamble, the
DFARS provisions and clauses related to FAR subpart 27.4 are proposed
to be relocated to the FAR and replace the provisions and clauses at
FAR 52.227-14 through 52.227-21 and FAR 52.227-23. This relocation of
provisions and clauses from the DFARS to the FAR requires the
following:
<bullet> Revising the annual reporting burden for OMB Control No.
9000-0095 to be estimated as follows:
Respondents: 439.
Total Annual Responses: 13,634.
Total Burden Hours: 54,386.
<bullet> Transferring to the FAR the following OMB Control Nos.
0704-0369, DFARS Subpart 227.71, Rights in Technical Data, and Subpart
227.72, Rights in Computer Software and Computer Software
Documentation, and related provisions and clauses; and 0750-0010,
Defense Federal Acquisition Regulation Supplement Part 227, Patents,
Data, and Copyrights; Small Business Technology Transfer Program.
The total annual reporting burden for FAR part 27 is estimated as
follows:
Respondents/Recordkeepers: 47,332.
Total Annual Responses: 442,149.
Total Burden Hours: 513,057.
C. FAR Part 47
OMB Control No. 9000-0061, Federal Acquisition Regulation Part 47
Transportation Requirements.
The changes under this proposed rule, if finalized, would revise
this information collection and the paperwork burden previously
approved by OMB. This rule proposes to remove certain requirements as
explained in section VII.4.b of this preamble.
The revised public annual burden is estimated as follows:
Respondents/Recordkeepers: 12,656.
Total Annual Responses: 259,516.
Total Burden Hours: 17,661.
D. Comments Regarding Paperwork Burden.
The FAR Council will publish a separate first notice in accordance
with the Paperwork Reduction Act seeking comments on the changes to the
collections of information affected by this proposed rule.
IX. Severability
If any portion (e.g., section, clause, sentence) of this rule is
held to be invalid or unenforceable facially, or as applied to any
entity or circumstance, it shall be severable from the remainder of
this rule, and shall not affect the remainder thereof, or its
application to entities not similarly situated or to other dissimilar
circumstances. The various portions of this rule are independent and
serve distinct purposes. Even if one aspect were rendered invalid, the
other benefits of the rule would still be applicable.
List of Subjects in 48 CFR Parts 9, 27, 47, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, OFPP, DoD, GSA, and NASA propose amending 48 CFR parts
9, 27, 47, and 52 as set forth below:
0
1. Revise parts 9, 27, and 47 to read as follows:
PART 9--CONTRACTOR QUALIFICATIONS
Sec.
Subpart 9.1--Responsible Prospective Contractors
9.101 Definition.
9.102 Applicability.
9.103 Policy.
9.104 Standards.
9.104-1 General standards.
9.104-2 Application of standards.
9.104-3 Subcontractor responsibility.
9.104-4 Representation and certifications regarding responsibility
matters.
9.104-5 Integrity Records.
9.104-6 Solicitation provisions and contract clauses.
9.105 Procedures.
9.105-1 Obtaining information.
9.105-2 Determinations and documentation.
9.105-3 Disclosure of preaward information.
9.106 Prohibition on contracting with inverted domestic
corporations.
9.106-1 Definitions.
9.106-2 Authority.
9.106-3 Prohibition.
9.106-4 Representation by the offeror.
9.106-5 Waiver.
9.106-6 Solicitation provision and contract clause.
9.107 Prohibition on contracting with an entity involved in
activities that violate arms control treaties or agreements with the
United States.
9.107-1 Authority.
9.107-2 Prohibition.
9.107-3 Exception.
9.107-4 Certification by the offeror.
9.107-5 Solicitation provision.
9.108 Reserve Officer Training Corps and military recruiting on
campus.
9.108-1 Definitions.
9.108-2 Authority.
9.108-3 Policy.
9.108-4 Procedures.
9.108-5 Contract clause.
Subpart 9.2--Qualifications Requirements
9.200 Scope of subpart.
9.201 Definitions.
9.202 Policy.
9.203 QPLs, QMLs, and QBLs.
9.204 Responsibilities when establishing qualification requirements.
9.205 Opportunity for qualification before award.
9.206 Acquisitions subject to qualification requirements.
9.206-1 General.
9.206-2 Contract clause.
9.206-3 Competition.
9.207 Changes in status regarding qualification requirements.
Subpart 9.3--First Article Testing and Approval
9.301 Definition.
9.302 General.
9.303 Use.
9.304 Exceptions.
9.305 Risk.
9.306 Solicitation requirements.
9.307 Administrative procedures.
9.308 Contract clauses.
9.308-1 Testing performed by the contractor.
9.308-2 Testing performed by the Government.
Subpart 9.4--Debarment, Suspension, and Ineligibility
9.400 Scope of subpart.
9.401 Applicability.
9.402 Policy.
9.403 Definitions.
9.404 Exclusions in the System for Award Management.
9.405 Effect of listing.
9.405-1 Continuation of current contracts.
9.405-2 Restrictions on subcontracting.
9.406 Debarment.
9.406-1 General.
9.406-2 Causes for debarment.
9.406-3 Procedures.
9.406-4 Period of debarment.
9.406-5 Scope of debarment.
9.407 Suspension.
9.407-1 General.
9.407-2 Causes for suspension.
9.407-3 Procedures.
9.407-4 Period of suspension.
9.407-5 Scope of suspension.
9.408 Contract clause.
Subpart 9.5--Organizational and Consultant Conflicts of Interest
9.500 Scope of subpart.
[[Page 59594]]
9.501 Definition.
9.502 Applicability.
9.503 Waiver.
9.504 Contracting officer responsibilities.
9.505 General rules.
9.505-1 Providing systems engineering and technical direction.
9.505-2 Preparing specifications or work statements.
Authority: 41 U.S.C. 1121(b); 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C.
3016); and 51 U.S.C. 20113.
9.101 Definition.
As used in this subpart--
Administrative proceeding means a non-judicial process that is
adjudicatory in nature in order to make a determination of fault or
liability (e.g., Securities and Exchange Commission Administrative
Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed
Services Board of Contract Appeals Proceedings). This includes
administrative proceedings at the Federal and state level but only in
connection with performance of a Federal contract or grant. It does not
include agency actions such as contract audits, site visits, corrective
plans, or inspection of deliverables.
9.102 Applicability.
(a) This subpart applies to all proposed contracts with any
prospective contractor located--
(1) In the United States or its outlying areas; or
(2) Elsewhere, unless application of this subpart would be
inconsistent with the laws or customs where the contractor is located.
(b) This subpart does not apply to proposed contracts with--
(1) Foreign, State, or local governments;
(2) Other U.S. Government agencies or their instrumentalities; or
(3) Agencies for people who are blind or severely disabled (see
part 8).
9.103 Policy.
(a) Award contracts to responsible prospective contractors only.
(b) Do not award a contract before making an affirmative
determination of contractor responsibility. Without a clear indication
of responsibility, make a determination of nonresponsibility. If the
prospective contractor is a small business concern, comply with 19.204,
Certificates of Competency.
(c) A prospective contractor must affirmatively demonstrate its
responsibility, including, when necessary, the responsibility of its
proposed subcontractors.
9.104 Standards.
9.104-1 General standards.
To demonstrate responsibility, a prospective contractor must--
(a) Have, or have the ability to obtain, adequate financial
resources to perform the contract (see 9.104-2(a));
(b) Be able to comply with the required or proposed delivery or
performance schedule, taking into consideration all existing commercial
and governmental business commitments;
(c) Have a satisfactory performance record (see 9.104-2(b) and part
42). Do not determine a prospective contractor responsible or
nonresponsible based solely on a lack of relevant performance history;
(d) Have a satisfactory record of integrity and business ethics
(see part 42);
(e) Have the necessary organization, experience, accounting and
operational controls, and technical skills, or the ability to obtain
them (including, as appropriate, such elements as production control
procedures, property control systems, quality assurance measures, and
safety programs applicable to materials to be produced or services to
be performed by the prospective contractor and subcontractors) (see
9.104-2(a));
(f) Have the necessary production, construction, and technical
equipment and facilities, or the ability to obtain them (see 9.104-
2(a)); and
(g) Be otherwise qualified and eligible to receive an award under
applicable laws and regulations (see also inverted domestic corporation
prohibition at 9.106).
9.104-2 Application of standards.
(a) Ability to obtain resources. Except to the extent that a
prospective contractor has sufficient resources or proposes to perform
the contract by subcontracting, require evidence of the prospective
contractor's ability to obtain required resources (see 9.104-1(a), (e),
and (f)).
(b) Satisfactory performance record. (1) When determining whether a
prospective contractor has a satisfactory performance record, consider,
as applicable, the prospective contractor's--
(i) History of meeting the quality requirements of a contract; and
(ii) History of previous compliance with subcontracting plans (if
the pending contract requires a subcontracting plan).
(2) In addition to 9.104-2(b)(1)(i) and (ii), consider any other
relevant information when making this determination, including--
(i) The number of contracts involved;
(ii) The extent of deficient performance in each contract;
(iii) The contractor's overall pattern of performance; and
(iv) Documented corrective actions.
(3) Presume a prospective contractor is nonresponsible if it is or
has been seriously deficient in contract performance, unless the
circumstances were beyond the contractor's control, or the contractor
has taken meaningful corrective action.
(c)(1) Affiliates. Treat a prospective contractor's affiliates as
separate entities. However, consider the affiliate's past performance
and integrity when these factors may affect the prospective
contractor's responsibility.
(2) Joint ventures. For a prospective contractor that is a party to
a joint venture, consider the past performance of the joint venture. If
the joint venture lacks past performance, consider the past performance
of each party to the joint venture.
(d)(1) Small business concerns. Upon determining a small business
concern to be nonresponsible, refer the matter to the Small Business
Administration, which will decide whether to issue a Certificate of
Competency (see 19.204).
(2) Limitations on subcontracting. A small business that does not
agree to or is unable to comply with the limitations on subcontracting
may be nonresponsible.
9.104-3 Subcontractor responsibility.
(a) Generally, prospective prime contractors are responsible for
determining the responsibility of their prospective subcontractors (but
see 9.405 and 9.405-2 regarding debarred, ineligible, or suspended
firms). Determinations of prospective subcontractor responsibility may
affect the determination of responsibility for the prospective prime
contractor. Require a prospective contractor to provide written
evidence of a proposed subcontractor's responsibility, as necessary to
determine responsibility.
(b) When in the Government's interest, the contracting officer may
directly determine a prospective subcontractor's responsibility (e.g.,
when the prospective contract involves medical supplies, urgent
requirements, or substantial subcontracting). Apply the same standards
for prime contractor responsibility to determine subcontractor
responsibility.
9.104-4 Representation and certifications regarding responsibility
matters.
(a) When an offeror provides an affirmative response in paragraph
(a)(1) of the provision at 52.209-5,
[[Page 59595]]
Certification Regarding Responsibility Matters--
(1) Promptly, upon receipt of offers, request that the offeror
submit additional information to demonstrate the offeror's
responsibility to the contracting officer (but see 9.405); and
(2) Notify, prior to proceeding with award, in accordance with
agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official
responsible for initiating debarment or suspension action, where an
offeror indicates the existence of an indictment, charge, conviction,
or civil judgment, or Federal tax delinquency in an amount that exceeds
$15,000.
(b) The provision at 52.209-11, Representation by Corporations
Regarding Delinquent Tax Liability or a Felony Conviction under any
Federal Law, implements sections 744 and 745 of Division E of the
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L.
113-235) (and similar provisions in subsequent appropriations acts).
When an offeror provides an affirmative response in paragraph (b)(1) or
(2) of the provision at 52.209-11--
(1) Promptly, upon receipt of offers, request that the offeror
submit additional information to demonstrate the offeror's
responsibility to the contracting officer (but see 9.405);
(2) Notify, in accordance with agency procedures (see 9.406-3(a)
and 9.407-3(a)), the agency official responsible for initiating
debarment or suspension action; and
(3) Do not award to the offeror unless an agency suspending and
debarring official has considered suspension or debarment of the
corporation and made a determination that suspension or debarment is
not necessary to protect the interests of the Government.
(c) If the provision at 52.209-12, Certification Regarding Tax
Matters, is applicable (see 9.104-6(e)), do not award any contract in
an amount greater than $7 million, unless the offeror affirmatively
certified in its offer, as required by paragraph (b)(1), (2), and (3)
of the provision.
(d) Give offerors who do not furnish the representation or
certifications or other requested information an opportunity to remedy
the deficiency. Failure to furnish the representation or certifications
or other requested information may render the offeror nonresponsible.
9.104-5 Integrity Records.
(a) Integrity records refer to the documented history of the past
performance and integrity information of an offeror or contractor.
Integrity records consist of two segments, a non-public segment and a
publicly-available segment:
(1) The non-public segment in <a href="http://CPARS.gov">CPARS.gov</a> is where Government
officials and contractors post information, which can only be viewed
by--
(i) Government personnel and authorized users performing business
on behalf of the Government; or
(ii) An offeror or contractor, when viewing data on itself; and
(2) The publicly-available segment in the responsibility/
qualification (R/Q) section of <a href="http://SAM.gov">SAM.gov</a> is where data in the non-public
segment is automatically made public after a waiting period of 14
calendar days, except for--
(i) Past performance reviews required by part 42 (see section 3010
of Pub. L. 111-212) (41 U.S.C. 2313); or
(ii) Information that is withdrawn during the 14-calendar-day
waiting period by the Government official who posted it in accordance
with 9.105-2(b)(2)(ii).
(b)(1) Before awarding a contract exceeding the simplified
acquisition threshold, review the R/Q records in <a href="http://SAM.gov">SAM.gov</a>.
(2) The R/Q records also identify--
(i) An affiliate that is an immediate owner or subsidiary of the
offeror, if any; and
(ii) All predecessors of the offeror that held a Federal contract
or grant within the last three years.
(c)(1) When making a responsibility determination, consider all the
information available in the R/Q records regarding the offeror and any
immediate owner, predecessor, or subsidiary identified for that
offeror, as well as other past performance information on the offeror
in <a href="http://CPARS.gov">CPARS.gov</a> (see part 42).
(2) For evaluation of information available in the R/Q records
relating to an affiliate of the offeror, see 9.104-2(c).
(3) For source selection evaluations of past performance, see part
15. Use sound judgment in determining the weight and relevance of the
past performance information and how it relates to the present
acquisition.
(4) Given the R/Q records may contain information on any of the
offeror's previous contracts and information covering a 5-year period,
some of that information might be irrelevant to a determination of
present responsibility. For example, a prior administrative action such
as debarment, suspension, voluntary exclusion, or administrative
agreement, that has expired or otherwise been resolved, or information
relating to contracts for completely different products or services,
might be irrelevant.
(5) Integrity records in CPARS provide information about prime
contractors. When the contracting officer posts information about a
subcontractor such as trafficking in persons violations, to the record
of the prime contractor (see subpart 42.14), the prime contractor may
post any mitigating factors to the record. Consider any mitigating
factors the prime contractor posted, such as degree of compliance by
the prime contractor with the terms of clause 52.222-50.
(d) Upon obtaining relevant R/Q records regarding criminal, civil,
or administrative proceedings in connection with the award or
performance of a Government contract; terminations for default or
cause; determinations of nonresponsibility because the contractor does
not have a satisfactory performance record or a satisfactory record of
integrity and business ethics; or comparable information relating to a
grant, unless the contractor has already been debarred, suspended, or
has agreed to a voluntary exclusion--
(1) Promptly request from the offeror additional information to
demonstrate the offeror's responsibility (but see 9.405); and
(2) Notify, prior to proceeding with award, in accordance with
agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official
responsible for initiating debarment or suspension action, if the
information appears appropriate for the official's consideration.
(e) Document the contract file for each contract exceeding the
simplified acquisition threshold to indicate how the information in the
R/Q records was considered in any responsibility determination, as well
as the action that was taken as a result of the information. Post
nonresponsibility determinations in the integrity records in <a href="http://CPARS.gov">CPARS.gov</a>
in accordance with 9.105-2 (b)(2).
9.104-6 Solicitation provisions and contract clauses.
(a) Insert the provision at 52.209-5, Certification Regarding
Responsibility Matters, in solicitations, including those for
commercial products and commercial services, if the acquisition value
exceeds the simplified acquisition threshold.
(b) Insert the provision at 52.209-7, Information Regarding
Responsibility Matters, in solicitations, including those for
commercial products or commercial services, if the acquisition value
exceeds $750,000.
(c) Insert the clause at 52.209-9, Updates of Publicly Available
[[Page 59596]]
Information Regarding Responsibility Matters--
(1) In solicitations, including those for commercial products or
commercial services, if the acquisition value exceeds $750,000; and
(2) In contracts, including those for commercial products or
commercial services, if the prospective contractor checked ``has'' in
paragraph (b) of the provision at 52.209-7.
(d) Insert the provision at 52.209-11, Representation by
Corporations Regarding Delinquent Tax Liability or a Felony Conviction
under any Federal Law, in all solicitations, including those for
commercial products and commercial services.
(e) For agencies receiving funds subject to section 523 of Division
B of the Consolidated and Further Continuing Appropriations Act, 2015
(Pub. L. 113-235) and similar provisions in subsequent appropriations
acts, insert the provision at 52.209-12, Certification Regarding Tax
Matters, in solicitations, including those for commercial products or
commercial services, if the acquisition value exceeds $7 million.
9.105 Procedures.
9.105-1 Obtaining information.
(a) Before determining responsibility, obtain information
establishing that a prospective contractor currently meets the
standards in 9.104.
(b)(1) Generally, obtain information regarding responsibility
promptly after a bid opening or receipt of offers. Limit such requests
to information concerning the low bidder or those offerors in range for
award.
(2) For negotiated contracting, especially for research and
development, consider obtaining information regarding responsibility
before issuing the request for proposals.
(3) To the extent feasible, obtain or update information regarding
financial resources and performance capability up to the date of award.
(c) When determining responsibility, consider the R/Q records (see
9.104-5) regarding the offeror and any immediate owner, predecessor, or
subsidiary identified for that offeror and any other relevant past
performance information on the offeror in <a href="http://CPARS.gov">CPARS.gov</a> (see 9.104-1(c) and
part 42). In addition, consider using the following sources of
information to support such determinations:
(1) Records and experience data, including verifiable knowledge of
personnel within the contracting office, audit offices, contract
administration offices, and other contracting offices.
(2) The prospective contractor, including bid or proposal
information (including the certification at 52.209-5 (see 9.104-4),
questionnaire replies, financial data, information on production
equipment, and personnel information.
(3) Commercial sources of supplier information of a type offered to
buyers in the private sector.
(4) Other sources, such as publications; suppliers, subcontractors,
and customers of the prospective contractor; financial institutions;
Government agencies; and business and trade associations.
(d) Contracting offices and cognizant contract administration
offices that become aware of circumstances casting doubt on a
contractor's ability to perform contracts successfully must promptly
exchange relevant information.
9.105-2 Determinations and documentation.
(a) Determinations. (1) The contracting officer's signing of a
contract constitutes a determination that the prospective contractor is
responsible with respect to that contract. Upon rejecting an offer that
would otherwise generate an award because the prospective contractor is
nonresponsible, sign a determination of nonresponsibility, stating the
grounds for nonresponsibility.
(2) Upon determining that a responsive small business lacks certain
elements of responsibility, comply with the procedures in part 19. If,
in response, the Small Business Administration issues a Certificate of
Competency for the small business concern, award the contract to the
concern.
(b) Support documentation. (1) Include in the contract file
documents and reports supporting a determination of responsibility or
nonresponsibility, including the use of R/Q records (see 9.104-5) and
any applicable Certificate of Competency.
(2)(i) Post the determination of nonresponsibility in the integrity
records in <a href="http://CPARS.gov">CPARS.gov</a> within 3 business days of making a determination
if--
(A) The contract is valued at more than the simplified acquisition
threshold;
(B) The determination of nonresponsibility is based on lack of
satisfactory performance record or satisfactory record of integrity and
business ethics; and
(C) The Small Business Administration does not issue a Certificate
of Competency.
(ii) Do not post any information in the non-public segment covered
by a disclosure exemption under the Freedom of Information Act. If the
contractor asserts within 7 calendar days, to the Government official
who posted the information, that some of the information posted to the
non-public segment is covered by a disclosure exemption under the
Freedom of Information Act, the Government official who posted the
information must, within 7 calendar days, remove the posting from the
integrity records in <a href="http://CPARS.gov">CPARS.gov</a>. Resolve the issue in accordance with
agency Freedom of Information Act procedures prior to reposting the
releasable information.
9.105-3 Disclosure of preaward information.
Except as provided in part 24 concerning the Freedom of Information
Act, do not release or disclose outside the Government information
gathered for purposes of determining the responsibility of a
prospective contractor.
9.106 Prohibition on contracting with inverted domestic corporations.
9.106-1 Definitions.
As used in this section--
Inverted domestic corporation means a foreign incorporated entity
that meets the definition of an inverted domestic corporation under 6
U.S.C. 395(b), applied in accordance with the rules and definitions of
6 U.S.C. 395(c).
Subsidiary means an entity in which more than 50 percent of the
entity is owned--
(1) Directly by a parent corporation; or
(2) Through another subsidiary of a parent corporation.
9.106-2 Authority.
Section 9.106 implements section 745 of Division D of the
Consolidated Appropriations Act, 2008 (Pub. L. 110-161) and its
successor provisions in subsequent appropriations acts (and as extended
in continuing resolutions).
9.106-3 Prohibition.
(a) Do not use appropriated funds, or funds otherwise made
available, for contracts with either an inverted domestic corporation,
or a subsidiary of such a corporation, except as provided in paragraph
(b) of this section and in 9.106-5, Waiver.
(b) This prohibition does not apply to any contract entered into
before December 26, 2007, or to any task order issued pursuant to such
a contract.
(c) Consult with legal counsel if, during the performance of a
contract, a contractor becomes an inverted domestic corporation or a
subsidiary of one.
[[Page 59597]]
9.106-4 Representation by the offeror.
(a) To be eligible for contract award, an offeror must represent
that it is neither an inverted domestic corporation, nor a subsidiary
of an inverted domestic corporation. Any offeror that cannot so
represent is ineligible for award of a contract, unless waived in
accordance with the procedures at 9.106-5.
(b) The contracting officer may rely on an offeror's representation
that it is not an inverted domestic corporation unless the contracting
officer has reason to question the representation.
9.106-5 Waiver.
An agency head may waive the prohibition in section 9.106-3 and the
requirement of section 9.106-4 for a specific contract if the agency
head determines in writing that the waiver is required in the interest
of national security. The agency head must report issuance of the
waiver to Congress and to the Made in America Office.
9.106-6 Solicitation provision and contract clause.
(a) Include the provision at 52.209-2, Prohibition on Contracting
with Inverted Domestic Corporations--Representation, in all
solicitations, including those for commercial products and commercial
services.
(b) Include the clause at 52.209-10, Prohibition on Contracting
with Inverted Domestic Corporations, in all solicitations, including
those for commercial products and commercial services.
9.107 Prohibition on contracting with an entity involved in activities
that violate arms control treaties or agreements with the United
States.
9.107-1 Authority.
This section implements 22 U.S.C. 2593e.
9.107-2 Prohibition.
Do not award, renew, or extend a contract with an entity identified
as excluded in the System for Award Management, specifically for this
subpart, based on involvement in activities that violate arms control
treaties or agreements with the United States.
9.107-3 Exception.
The prohibition in 9.107-2 does not apply to contracts for the
procurement of products or services along a major route of supply to a
zone of active combat or major contingency operation, as specified in
statute or by the cognizant Combatant Commander, in consultation with
the Chief of Mission.
9.107-4 Certification by the offeror.
(a) To be eligible for contract award, an offeror must--
(1) Certify that it does not engage and has not engaged in any
activity that contributed to or was a significant factor in the
President's or Secretary of State's determination that a foreign
country is--
(i) In violation of its obligations undertaken in any arms control,
nonproliferation, or disarmament agreement to which the United States
is a party; or
(ii) Not adhering to its arms control, nonproliferation, or
disarmament commitments in which the United States is a participating
state; and
(2) Similarly certify regarding any entity owned or controlled by
the offeror; or
(3) Provide with its offer information that the President of the
United States has--
(i) Waived application under 22 U.S.C. 2593e(d) or (e); or
(ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has
ceased all activities for which measures were imposed under 22 U.S.C.
2593e(b).
(b) If certifying in accordance with 52.209-13(b)(1), the Offeror
is required to submit the certification with the offer. It is not
included in the annual representations and certifications in the System
for Award Management.
(c) The contracting officer may rely on an offeror's certification
unless the contracting officer has reason to question the
certification.
(d) Upon the determination of a false certification under 52.209-
13, an offeror will be subject to such remedies as suspension or
debarment under subpart 9.4, or termination of any contract resulting
from the false certification. Debarments pursued as a remedy under
subpart 9.4 are for a period of not less than 2 years, inclusive of any
suspension period, if suspension precedes a debarment (see 9.406-
4(a)(1)(iii) and (a)(2)).
(e) The determinations referenced in paragraph (a)(1) of this
section are described in the most recent unclassified annual report
provided to Congress pursuant to section 403 of the Arms Control and
Disarmament Act (22 U.S.C. 2593a). The report is available at <a href="https://www.state.gov/adherence-to-and-compliance-with-arms-control-nonproliferation-and-disarmament-agreements-and-commitments/">https://www.state.gov/adherence-to-and-compliance-with-arms-control-nonproliferation-and-disarmament-agreements-and-commitments/</a>.
9.107-5 Solicitation provision.
Insert the provision at 52.209-13, Violation of Arms Control
Treaties or Agreements--Certification, in solicitations, other than
those for commercial products or commercial services, if the
acquisition value exceeds the simplified acquisition threshold.
9.108 Reserve Officer Training Corps and military recruiting on
campus.
9.108-1 Definitions.
As used in this section--
Covered agency means--
(1) The Department of Defense;
(2) Any department or agency for which regular appropriations are
made in a Department of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act;
(3) The Department of Homeland Security;
(4) The National Nuclear Security Administration of the Department
of Energy;
(5) The Department of Transportation; or
(6) The Central Intelligence Agency.
Institution of higher education means an institution that meets the
requirements of 20 U.S.C. 1001 and includes all sub-elements of such an
institution.
9.108-2 Authority.
This section implements 10 U.S.C. 983.
9.108-3 Policy.
(a) Except as provided in paragraph (b) of this section, 10 U.S.C.
983 prohibits a covered agency from providing funds by contract to an
institution of higher education if the Secretary of Defense determines
that the institution has a policy or practice that prohibits or in
effect prevents--
(1) The Secretary of a military department from maintaining,
establishing, or operating a unit of the Senior Reserve Officer
Training Corps (ROTC) at that institution;
(2) A student at that institution from enrolling in a unit of the
Senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of
Homeland Security from gaining access to campuses, or access to
students (who are 17 years of age or older) on campuses, for purposes
of military recruiting in a manner that is at least equal in quality
and scope to the access to campuses and to students that is provided to
any other employer; or
(4) Military recruiters from accessing certain information
pertaining to students (who are 17 years of age or older) enrolled at
that institution:
(i) Name, address, and telephone listings.
(ii) Date and place of birth, educational level, academic majors,
[[Page 59598]]
degrees received, and the most recent educational institution enrolled
in by the student.
(b) The prohibition in paragraph (a) of this section does not apply
to an institution of higher education if the Secretary of Defense
determines that--
(1) The institution has ceased the policy or practice described in
paragraph (a) of this section; or
(2) The institution has a long-standing policy of pacifism based on
historical religious affiliation.
9.108-4 Procedures.
(a) If the Secretary of Defense determines, pursuant to the
procedures at 32 CFR part 216, that an institution of higher education
is ineligible to receive funds from a covered agency because of a
policy or practice described in 9.108-3, then the Secretary of Defense
will create an active exclusion record for the institution in the
System for Award Management.
(b) Upon a determination described in paragraph (a), a covered
agency must not solicit offers from, award contracts to, or consent to
subcontracts with the institution. This prohibition does not apply to
acquisitions at or below the simplified acquisition threshold or to
acquisitions of commercial products and commercial services, including
commercially available off-the-shelf items.
9.108-5 Contract clause.
When using funds from a covered agency, insert the clause at
52.209-14, Reserve Officer Training Corps and Military Recruiting on
Campus, in solicitations and contracts with institutions of higher
education, other than those for commercial products or commercial
services, if the acquisition value exceeds the simplified acquisition
threshold.
Subpart 9.2--Qualifications Requirements
9.200 Scope of subpart.
This subpart implements 10 U.S.C. 3243 and 41 U.S.C. 3311.
9.201 Definitions.
As used in this subpart--
Qualification requirement means a requirement for testing or other
quality assurance demonstration that must be completed by an offeror
before award of a contract.
Qualified bidders list (QBL) means a list of bidders who have had
their products examined and tested and who have satisfied all
applicable qualification requirements for that product or have
otherwise satisfied all applicable qualification requirements.
Qualified manufacturers list (QML) means a list of manufacturers
who have had their products examined and tested and who have satisfied
all applicable qualification requirements for that product.
Qualified products list (QPL) means a list of products that have
been examined, tested, and have satisfied all applicable qualification
requirements.
9.202 Policy.
(a)(1) Before establishing a qualification requirement, the head of
the agency must prepare a written justification--
(i) Stating the necessity for the qualification requirement and
specifying why the qualification requirement must be demonstrated
before contract award;
(ii) Estimating the likely costs for testing and evaluation which
will be incurred by the potential offeror to become qualified; and
(iii) Specifying all requirements that a potential offeror (or its
product) must satisfy to become qualified.
(2) Specify only the least restrictive qualification requirements
necessary to meet agency purposes.
(3) Upon request, provide potential offerors--
(i) All requirements that they or their products must satisfy to
become qualified; and
(ii) At their expense (but see 9.204(a)(2) with regard to small
businesses), a prompt opportunity to demonstrate their abilities to
meet the standards specified for qualification using qualified
personnel and facilities of the agency concerned, or of another agency
obtained through interagency agreements or under contract, or other
methods approved by the agency (including use of approved testing and
evaluation services not provided under contract to the agency).
(4) If the services in (a)(3)(ii) of this section are under
contract, select only those contractors to provide testing and
evaluation services that are--
(i) Not expected to benefit from an absence of additional qualified
sources; and
(ii) Required by their contracts to adhere to any restriction on
technical data asserted by the potential offeror seeking qualification.
(5) Promptly inform a potential offeror seeking qualification
whether it attained qualification and, in the event it has not,
promptly provide it specific reasons why it did not attain
qualification.
(b)(1) When justified under the circumstances, the agency activity
responsible for establishing a qualification requirement for an item
must submit to the advocate for competition for the contracting
activity responsible for purchasing the item, a determination that
specifying a qualification requirement is unreasonable.
(2) After considering any comments from the advocate for
competition reviewing the determination, the head of the contracting
activity may waive the requirements of 9.202(a)(1)(ii) through (a)(5)
of this section for up to 2 years with respect to the item subject to
the qualification requirement. The waiver authority provided in this
paragraph does not apply with respect to qualification requirements
contained in a QPL, QML, or QBL.
(3) The head of the contracting activity must furnish a copy of the
waiver to the head of the agency or other official responsible for
actions under paragraph (a)(1) of this section.
(c) If a potential offeror can demonstrate to the satisfaction of
the contracting officer that the potential offeror (or its product)
meets qualification standards, or can meet them before the date
specified for award of the contract, do not deny the potential offeror
the opportunity to submit and have considered an offer for a contract
solely because the potential offeror--
(1) Is not on a QPL, QML, or QBL maintained by the Department of
Defense (DoD) or the National Aeronautics and Space Administration
(NASA); or
(2) Has not been identified as meeting a qualification requirement
established after October 19, 1984, by DoD or NASA; or
(3) Has not been identified as meeting a qualification requirement
established by a civilian agency (not including NASA).
(d) The procedures in part 19 for referring matters to the Small
Business Administration are not mandatory on the contracting officer
when the basis for a referral would involve a challenge by the offeror
to either the validity of the qualification requirement or the
offeror's compliance with such requirement.
(e) The contracting officer need not delay a proposed award to
provide a potential offeror with an opportunity to demonstrate its
ability to meet qualification standards. In addition, when approved by
the head of an agency or designee, a procurement need not be delayed in
order to comply with paragraph (a) of this section.
(f) Within 7 years following enforcement of a QPL, QML, or QBL by
DoD or NASA, or within 7 years after any qualification requirement was
[[Page 59599]]
originally established by a civilian agency other than NASA, the
qualification requirement must be examined and revalidated in
accordance with the requirements of paragraph (a) of this section. For
DoD and NASA, qualification requirements, other than QPLs, QMLs, and
QBLs, must be examined and revalidated within 7 years after
establishment of the requirement under paragraph (a) of this section.
Any periods for which a waiver under paragraph (b) of this section is
in effect must be excluded in computing the 7 years within which review
and revalidation must occur.
9.203 QPLs, QMLs, and QBLs.
(a)(1) Qualification in a QPL, QML, or QBL is the process by
which--
(i) The Government obtains products from manufacturers or
distributors for examination and testing for compliance with
specification requirements; or
(ii) Manufacturers or potential offerors have an opportunity to
demonstrate their abilities to meet the standards specified for
qualification.
(2) Generally, qualification occurs in advance and independently of
any specific acquisition action.
(3) After qualification, the products, manufacturers, or potential
offerors are included in a Federal or Military QPL, QML, or QBL. (See
9.202(a)(3) regarding any product, manufacturer, or potential offeror
not yet included on an applicable list.)
(b) Specifications requiring a qualified product are included--
(1) In the General Services Administration Index of Federal
Specifications, Standards and Commercial Item Descriptions; and
(2) On the Department of Defense Acquisition Streamlining and
Standardization Information System (ASSIST) website at <a href="https://assist.dla.mil">https://assist.dla.mil</a>.
(c) Instructions concerning qualification procedures are included
in the following publications:
(1) Federal Standardization Manual, FSPM-0001.
(2) Department of Defense Manual 4120.24, Defense Standardization
Program (DSP) Procedures, (<a href="http://www.esd.whs.mil/Directives/Issuances/dodm">www.esd.whs.mil/Directives/Issuances/dodm</a>)
as amended by Military Standards 961 and 962 (<a href="https://assist.dla.mil">https://assist.dla.mil</a>).
9.204 Responsibilities when establishing qualification requirements.
(a) Arranging publicity. If active competition on anticipated
future qualification requirements is likely to be fewer than two
manufacturers or the products of two manufacturers, the activity
responsible for establishment of the qualification requirements must--
(1) Periodically furnish through the Governmentwide point of entry
(GPE) a notice seeking additional sources or products for qualification
unless the contracting officer determines that such publication would
compromise the national security.
(2) Bear the cost of conducting the specified testing and
evaluation (excluding the costs associated with producing the item or
establishing the production, quality control, or other system to be
tested and evaluated) for a small business concern or a product
manufactured by a small business concern which has met the standards
specified for qualification and which could reasonably be expected to
compete for a contract for that requirement.
(i) For agencies other than DoD, this cost may be borne only upon a
determination in accordance with agency procedures that such additional
qualified sources or products are likely to result in cost savings from
increased competition for future requirements sufficient to amortize
the costs incurred by the agency within a reasonable period,
considering the duration and dollar value of anticipated future
requirements.
(ii) A prospective contractor requesting the United States to bear
testing and evaluation costs must certify as to its status as a small
business concern under section 3 of the Small Business Act to receive
further consideration.
(b) Other agency-activity responsibilities when establishing
qualification requirements. Additional responsibilities of agencies
that establish qualification requirements include:
(1) Qualifying products that meet specification requirements.
(2) Listing manufacturers and suppliers whose products are
qualified in accordance with agency procedures.
(3) Furnishing QPLs, QMLs, or QBLs or the qualification
requirements themselves to prospective offerors and the public upon
request.
(4) Clarifying, as necessary, qualification requirements.
(5) In appropriate cases, when requested by the contracting
officer, providing concurrence in a decision not to enforce a
qualification requirement for a solicitation.
(6) Withdrawing or omitting qualification of a listed product,
manufacturer or offeror, as necessary.
(7) Advising persons that are furnished any list of products,
manufacturers or offerors meeting a qualification requirement and
suppliers whose products are on any such list that--
(i) The list does not constitute endorsement of the product,
manufacturer, or other source by the Government;
(ii) The products or sources listed have been qualified under the
latest applicable specification;
(iii) The list may be amended without notice;
(iv) The listing of a product or source does not release the
supplier from compliance with the specification; and
(v) Use of the list for advertising or publicity is permitted.
However, the list must not state or imply that a particular product or
source is the only product or source of that type qualified, or that
the Government in any way recommends or endorses the products or the
sources listed.
(8) Reexamining a qualified product or manufacturer when--
(i) The manufacturer has modified its product, or changed the
material or the processing sufficiently so that the validity of
previous qualification is questionable;
(ii) The requirements in the specification have been amended or
revised sufficiently to affect the character of the product; or
(iii) Circumstances require confirmation that the product conforms
with the specification.
9.205 Opportunity for qualification before award.
(a) If an agency determines that a qualification requirement is
necessary, the agency activity responsible for establishing the
requirement must--
(1) Urge manufacturers and other potential sources to demonstrate
their ability to meet the standards specified for qualification;
(2) When possible, give sufficient time to arrange for
qualification before award; and
(3) Before establishing any qualification requirement, furnish
notice through the GPE. The notice must include--
(i) A statement of the intent to establish a qualification
requirement;
(ii) The specification number and name of the product;
(iii) The name and address of the activity to which to submit a
request for the information and opportunity;
(iv) The anticipated date that the agency will begin awarding
contracts subject to the qualification requirement;
(v) A precautionary notice that when a product is submitted for
qualification testing, the applicant must furnish any specific
information that may be
[[Page 59600]]
requested of the manufacturer before testing will begin; and
(vi) The approximate time period following submission of a product
for qualification testing within which the applicant will be notified
whether the product passed or failed the qualification testing (see
9.202(a)(5)).
(b) The activity responsible for establishing a qualification
requirement must keep any list maintained of those already qualified
open for inclusion of additional products, manufacturers, or other
potential sources.
9.206 Acquisitions subject to qualification requirements.
9.206-1 General.
(a) Do not enforce any QPL, QML, or QBL without first complying
with the requirements of 9.202(a). However, qualification requirements
themselves, whether or not previously embodied in a QPL, QML, or QBL,
in either of the following categories are enforceable without regard to
9.202(a):
(1) Any qualification requirement established by statute prior to
October 30, 1984, for civilian agencies (not including NASA).
(2) Any qualification requirement established by statute or
administrative action prior to October 19, 1984, for DOD or NASA.
(b) Except when the agency head determines that an emergency
exists, whenever an agency elects not to enforce a qualification
requirement, the agency may not thereafter enforce that qualification
requirement unless the agency complies with 9.202(a).
(c) If a qualification requirement applies, consider only those
offers identified as meeting the requirement or included on the
applicable QPL, QML, or QBL, unless an offeror can satisfactorily
demonstrate that it or its product, or its subcontractor or its
product, can meet the qualification standards before the date specified
for award.
(d) If a component of an end item is subject to a qualification
requirement, ensure that all such components and their qualification
requirements are properly identified in the solicitation.
(e) In acquisitions subject to qualification requirements, take the
following steps:
(1) Use presolicitation notices as appropriate to advise potential
suppliers before issuing solicitations involving qualification
requirements. The notices must identify the specification containing
the qualification requirement and establish an allowable time period,
consistent with delivery requirements, for prospective offerors to
demonstrate their abilities to meet the qualification standards.
(2) Distribute solicitations to prospective contractors whether or
not they have been identified as meeting applicable qualification
requirements.
(3) When appropriate, request in accordance with agency procedures
that a qualification requirement not be enforced in a particular
acquisition and, if granted, so specify in the solicitation (see 9.206-
1(b)).
(4) Forward requests from potential suppliers for information on a
qualification requirement to the agency activity responsible for
establishing the requirement.
(5) Allow the maximum time, consistent with delivery requirements,
between issuing the solicitation and the contract award. As a minimum,
comply with the time frames specified in part 5 when applicable.
9.206-2 Contract clause.
Insert the clause at 52.209-1, Qualification Requirements, in
solicitations and contracts, including those for commercial products or
commercial services, when the acquisition is subject to a qualification
requirement.
9.206-3 Competition.
(a) Presolicitation. If a qualification requirement applies to an
acquisition, review the applicable QPL, QML, or QBL or other
identification of those sources meeting the requirement before issuing
a solicitation to ascertain whether the number of sources is adequate
for competition. If the number of sources is inadequate, request the
agency activity which established the requirement to--
(1) Indicate the anticipated date on which any sources presently
undergoing evaluation will have demonstrated their abilities to meet
the qualification to allow for rescheduling; or
(2) Indicate whether a means other than the qualification
requirement is feasible for testing or demonstrating quality assurance.
(b) Postsolicitation. Submit to the agency activity that
established the qualification requirement the names and addresses of
concerns that expressed interest in the acquisition but are not
included on the applicable QPL, QML, or QBL or identified as meeting
the qualification requirement. The activity will then assist interested
concerns in meeting the standards specified for qualification (see
9.202(a)(3) and (5)).
9.207 Changes in status regarding qualification requirements.
(a) Promptly report to the agency activity that established the
qualification requirement any conditions meriting removal or omission
from a QPL, QML, or QBL or that affect whether a source should continue
as identified as meeting the requirement. These conditions exist when--
(1) Products or services are submitted for inspection or acceptance
that do not meet the qualification requirement;
(2) Products or services were previously rejected and the defects
were not corrected when resubmitted for inspection or acceptance;
(3) A supplier fails to request reevaluation following change of
location or ownership of the plant where the product which met the
qualification requirement was manufactured (see the clause at 52.209-1,
Qualification Requirements);
(4) A manufacturer of a product which met the qualification
requirement has discontinued manufacture of the product;
(5) A source requests removal from a QPL, QML, or QBL;
(6) A condition of meeting the qualification requirement was
violated; e.g., advertising or publicity contrary to 9.204(b)(7)(v);
(7) A revised specification imposes a new qualification
requirement;
(8) Manufacturing or design changes have been incorporated in the
qualification requirement;
(9) The source is listed in the System for Award Management
Exclusions (see subpart 9.4); or
(10) Performance of a contract subject to a qualification
requirement is otherwise unsatisfactory.
(b) After considering these or other conditions related to whether
a product or source continues to meet the standards specified for
qualification, an agency may take appropriate action without advance
notification. The agency must, however, promptly notify the affected
parties if a product or source is removed from a QPL, QML, or QBL, or
will no longer be identified as meeting the standards specified for
qualification. This notice must contain specific information why the
product or source no longer meets the qualification requirement.
Subpart 9.3--First Article Testing and Approval
9.301 Definition.
As used in this subpart--
Approval means the contracting officer's written notification to
the contractor accepting the test results of the first article.
[[Page 59601]]
9.302 General.
First article testing and approval (testing and approval) ensures
that the contractor can furnish a product conforming to all contract
requirements for acceptance. Before requiring testing and approval,
consider the--
(a) Impact on cost or time of delivery;
(b) Risk to the Government of foregoing such test; and
(c) Availability of other, less costly, methods of ensuring the
desired quality.
9.303 Use.
Testing and approval may be appropriate when--
(a) The contractor has not previously furnished the product to the
Government;
(b) The contractor previously furnished the product to the
Government, but--
(1) Subsequent changes in processes or specifications have
occurred;
(2) Production has been discontinued for an extended period of
time; or
(3) The product acquired under a previous contract developed a
problem during its life.
(c) The product is described by a performance specification; or
(d) An approved first article is essential to serve as a
manufacturing standard.
9.304 Exceptions.
Normally, do not require testing and approval in contracts for--
(a) Research or development;
(b) Products requiring qualification before award (e.g., when an
applicable qualified products list exists (see subpart 9.2));
(c) Products normally sold in the commercial market; or
(d) Products covered by complete and detailed technical
specifications, unless the requirements are so novel or exacting that
the products might not meet the requirements without testing and
approval.
9.305 Risk.
(a) Provide sufficient time in the delivery schedule for the
contractor's acquisition of materials and components as well as for
production after receipt of first article approval.
(b) The contracting officer may, before approval of the first
article, authorize the contractor to acquire specific materials or
components or commence production to the extent necessary to meet the
delivery schedule (see Alternate II of the clause at 52.209-3, First
Article Approval--Contractor Testing, and Alternate II of the clause at
52.209-4, First Article Approval--Government Testing). Costs incurred
based on this authorization are allocable to the contract for--
(1) Progress payments; and
(2) Termination settlements if the contract is terminated for the
convenience of the Government.
9.306 Solicitation requirements.
Solicitations including a testing and approval requirement must--
(a) Provide, where the contractor is responsible for the first
article approval testing--
(1) The performance or other characteristics that the first article
must meet for approval;
(2) The detailed technical requirements for the tests necessary for
approval; and
(3) The data the contractor must submit in the first article
approval test report;
(b) Provide, where the Government is responsible for the first
article approval testing--
(1) The performance or other characteristics that the first article
must meet for approval; and
(2) The tests to which the first article will be subjected for
approval;
(c) Inform offerors that the requirement may be waived when
supplies identical or similar to those called for have previously been
delivered by the offeror and accepted by the Government (see 52.209-
3(h) and 52.209-4(i));
(d) Permit the submission of alternative offers, i.e., one
including and the other excluding testing and approval (if eligible
under paragraph (c) of this section);
(e) State clearly the first article's relationship to the contract
quantity (see paragraph (e) of the clause at 52.209-3, First Article
Approval--Contractor Testing, or 52.209-4, First Article Approval--
Government Testing);
(f) Contain a delivery schedule for the production quantity. The
delivery schedule may--
(1) Be the same whether or not testing and approval is waived; or
(2) Provide for earlier delivery when testing and approval is
waived, and the Government requires earlier delivery. In the latter
case, any resulting difference in delivery schedules must not be an
evaluation factor for award. The clause at 52.209-4, First Article
Approval--Government Testing, must contain the delivery schedule for
the first article;
(g) Provide for the submission of contract numbers, if any, to
document the offeror's eligibility under paragraph (c) of this section;
(h) State whether the approved first article will serve as a
manufacturing standard;
(i) Include the Government's estimated testing costs as an
evaluation factor, if appropriate, when the Government is responsible
for first article testing; and
(j) Inform offerors that the prices for first articles and first
article tests in relation to production quantities must not be
materially unbalanced (see 15.404-1(g)) if first article test items or
tests are to be separately priced.
9.307 Administrative procedures.
(a) Before the contractor ships the first article, or the first
article test report, to the Government laboratory or other activity
responsible for approval, the contract administration office must
provide that activity with as much advance notification as is feasible
of the forthcoming shipment, and--
(1) Advise that activity of the contractual requirements for
testing and approval, or evaluation, as appropriate;
(2) Call attention to the notice requirement in paragraph (b) of
the clause at 52.209-3, First Article Approval--Contractor Testing, or
52.209-4, First Article Approval--Government Testing; and
(3) Request that the activity inform the contract administration
office of the date when testing or evaluation will be completed.
(b) The Government laboratory or other activity responsible for
first article testing or evaluation must inform the contracting office
whether to approve, conditionally approve, or disapprove the first
article. The contracting officer must then notify the contractor of the
action taken and furnish a copy of the notice to the contract
administration office. The notice must include the first article
shipment number, when available, and the applicable line-item number.
Make any necessary changes in the drawings, designs, or specifications
only under the Changes clause.
9.308 Contract clauses.
9.308-1 Testing performed by the contractor.
(a) Insert the clause at 52.209-3, First Article Approval--
Contractor Testing, in solicitations and contracts, including those for
commercial products and commercial services, that require first article
approval, and the Government requires the Contractor to conduct the
first article testing.
(b) Use the clause with its Alternate I where the contract requires
the contractor to produce the first article and the production quantity
at the same facility.
(c) Use the clause with its Alternate II where necessary to
authorize the contractor to purchase material or to
[[Page 59602]]
commence production before first article approval.
9.308-2 Testing performed by the Government.
(a) Insert the clause at 52.209-4, First Article Approval--
Government Testing, in solicitations and contracts, other than those
for commercial products or commercial services, that require first
article approval, and the Government will conduct the first article
test.
(b) Use the clause with its Alternate I where the contract requires
the contractor to produce the first article and the production quantity
at the same facility.
(c) Use the clause with its Alternate II where necessary to
authorize the contractor to purchase material or to commence production
before first article approval.
Subpart 9.4--Debarment, Suspension, and Ineligibility
9.400 Scope of subpart.
(a) This subpart--
(1) Prescribes policies and procedures governing the debarment and
suspension of contractors by agencies for the causes given in 9.406-2
and 9.407-2;
(2) Provides for the listing of contractors debarred, suspended,
proposed for debarment, and declared ineligible (see the definition of
``ineligible'' in 2.101); and
(3) Sets forth the consequences of this listing.
(b) Although this subpart does cover the listing of ineligible
contractors (9.404) and the effect of this listing (9.405), it does not
prescribe policies and procedures governing declarations of
ineligibility except for contractors that have been declared ineligible
pursuant to 10 U.S.C. 983 (see 9.108, and 9.405-1(b)).
(c) For Federal Acquisition Supply Chain Security Act (FASCSA)
orders, see part 40.
9.401 Applicability.
In accordance with section 2455 of the Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355), and Executive Order 12689,
any debarment, suspension or other Governmentwide exclusion initiated
under the Nonprocurement Common Rule implementing Executive Order 12549
on or after August 25, 1995, must be recognized by and effective for
Executive Branch agencies as a debarment or suspension under this
subpart. Similarly, any debarment, suspension, proposed debarment or
other Governmentwide exclusion initiated on or after August 25, 1995,
under this subpart must also be recognized by and effective for those
agencies and participants as an exclusion under the Nonprocurement
Common Rule.
9.402 Policy.
(a) Agencies must solicit offers from, award contracts to, and
consent to subcontracts with responsible contractors only. Debarment
and suspension are discretionary actions that, taken in accordance with
this subpart, are appropriate means to effectuate this policy.
(b) The serious nature of debarment and suspension requires that
these remedies be imposed only in the public interest for the
Government's protection and not for purposes of punishment. Agencies
must impose debarment or suspension to protect the Government's
interest and only for the causes and in accordance with the procedures
in this subpart.
(c) Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
(d) When more than one agency has an interest in the debarment or
suspension of a contractor, the Interagency Suspension and Debarment
Committee, established under Executive Order 12549, and authorized by
section 873 of the National Defense Authorization Act for Fiscal Year
2009 (Pub. L. 110-417), must resolve the lead agency issue and
coordinate such resolution among all interested agencies prior to the
initiation of any suspension, debarment, or related administrative
action by any agency.
(e) Agencies must establish appropriate procedures to implement the
policies and procedures of this subpart.
9.403 Definitions.
As used in this subpart--
Administrative agreement means an agreement between an agency
suspending and debarring official and the contractor used to resolve a
suspension or debarment proceeding, or a potential suspension or
debarment proceeding.
Affiliates.--
(1) Business concerns, organizations, or individuals are affiliates
of each other if, directly or indirectly--
(i) Either one controls or has the power to control the other; or
(ii) A third party controls or has the power to control both.
(2) Indicia of control include, but are not limited to,
interlocking management or ownership, identity of interests among
family members, shared facilities and equipment, common use of
employees, or a business entity organized following the debarment,
suspension, or proposed debarment of a contractor which has the same or
similar management, ownership, or principal employees as the contractor
that was debarred, suspended, or proposed for debarment.
Agency means any executive department, military department or
defense agency, or other agency or independent establishment of the
executive branch.
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition that creates a civil liability for the
complained of wrongful acts, or a final determination of liability
under the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-
3812).
Contractor means any individual or other legal entity that--
(1) Directly or indirectly (e.g., through an affiliate), submits
offers for or is awarded, or reasonably may be expected to submit
offers for or be awarded, a Government contract, including a contract
for carriage under Government or commercial bills of lading, or a
subcontract under a Government contract; or
(2) Conducts business, or reasonably may be expected to conduct
business, with the Government as an agent or representative of another
contractor.
Conviction means--
(1) A judgment or any other determination of guilt of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or plea, including a plea of nolo contendere; or
(2) Any other resolution that is the functional equivalent of a
judgment establishing a criminal offense by a court of competent
jurisdiction, including probation before judgment and deferred
prosecution. A disposition without the participation of the court is
the functional equivalent of a judgment only if it includes an
admission of guilt.
Indictment means indictment for a criminal offense. An information
or other filing by competent authority charging a criminal offense is
given the same effect as an indictment.
Legal proceedings means any civil judicial proceeding to which the
Government is a party or any criminal proceeding. The term includes
appeals from such proceedings.
Nonprocurement Common Rule means the procedures used by Federal
Executive Agencies to suspend, debar, or exclude individuals or
entities from
[[Page 59603]]
participation in nonprocurement transactions under Executive Order
12549. Examples of nonprocurement transactions are grants, cooperative
agreements, scholarships, fellowships, contracts of assistance, loans,
loan guarantees, subsidies, insurance, payments for specified use, and
donation agreements. See 2 CFR part 180 and agency enacting regulations
in 2 CFR subtitle B.
Pre-notice letter means a written correspondence issued to a
contractor in a suspension or debarment matter, which does not
immediately result in an exclusion or ineligibility. The letter is
issued at the discretion of the suspending and debarring official. The
letter is not a mandatory step in the suspension or debarment process.
Unfair trade practices means the commission of any of the following
acts by a contractor:
(1) A violation of section 337 of the Tariff Act of 1930 (19 U.S.C.
1337) as determined by the International Trade Commission.
(2) A violation, as determined by the Secretary of Commerce, of any
agreement of the group known as the ``Coordination Committee'' for
purposes of the Export Administration Act of 1979 (50 U.S.C. App. 2401,
et seq.) or any similar bilateral or multilateral export control
agreement.
(3) A knowingly false statement regarding a material element of a
certification concerning the foreign content of an item of supply, as
determined by the Secretary of the Department or the head of the agency
to which such certificate was furnished.
Voluntary exclusion means a contractor's written agreement to be
excluded for a period under the terms of a settlement between the
contractor and the suspending and debarring official of one or more
agencies. A voluntary exclusion must have Governmentwide effect.
9.404 Exclusions in the System for Award Management.
(a) The General Services Administration--
(1) Operates the web-based System for Award Management (SAM) at
<a href="https://www.sam.gov">https://www.sam.gov</a>, which contains exclusion records; and
(2) Provides technical assistance to Federal agencies in the use of
SAM.
(b) An exclusion record in SAM contains the--
(1) Legal business name and physical address of the entities
debarred, suspended, proposed for debarment, voluntarily excluded,
declared ineligible, or excluded or disqualified under the
nonprocurement common rule, with cross-references when more than one
name is involved in a single action;
(2) Name of the agency or other authority taking the action;
(3) Cause for the action (see 9.406-2 and 9.407-2 for causes
authorized under this subpart) or other statutory or regulatory
authority;
(4) Effect of the action;
(5) Termination date for each listing;
(6) Unique Entity Identifier;
(7) Social Security Number (SSN), Employer Identification Number
(EIN), or other Taxpayer Identification Number (TIN), if available; and
(8) Name and telephone number of the agency point of contact for
the action.
(c) Each agency must--
(1) Identify the individual(s) responsible for entering and
updating exclusions data in SAM and assign the appropriate roles;
(2) Remove the exclusion roles in SAM when the individual leaves
the organization or changes functions;
(3) For each exclusion, including each voluntary exclusion,
accomplished by the agency--
(i) Enter the information required by paragraph (b) of this section
within 3 business days after the action becomes effective;
(ii) Determine whether it is legally permitted to enter the SSN,
EIN, or other TIN, under agency authority to suspend or debar; and
(iii) Update the exclusion record in SAM, generally within 5
business days after modifying or rescinding an action;
(4) In accordance with internal retention procedures, maintain
records relating to each debarment, suspension, proposed debarment, or
voluntary exclusion taken or entered into by the agency;
(5) Establish procedures to ensure that the agency does not solicit
offers from, award contracts to, or consent to subcontracts with
contractors who have an active exclusion record in SAM, except as
otherwise provided in this subpart; and
(6) Direct inquiries concerning listed contractors and other
entities to the agency or other authority that took the action.
9.405 Effect of listing.
(a) Contractors debarred, suspended, proposed for debarment, or
voluntarily excluded, are excluded from receiving contracts, and
agencies must not solicit offers from, award contracts to, or consent
to subcontracts with these contractors, unless the agency head
determines that a compelling reason exists for such action (see 9.405-
1(a)(2), 9.405-2, 9.406-1(d), 9.407-1(d), and 26.605-1(e)). Contractors
debarred, suspended, proposed for debarment, or voluntarily excluded,
are also excluded from conducting business with the Government as
agents or representatives of other contractors.
(b) Contractors and other entities that have an active exclusion
record in SAM because they have been declared ineligible based on
statutory or other regulatory procedures are excluded from receiving
contracts, and if applicable, subcontracts, under the conditions and
for the period set forth in the statute or regulation. Do not solicit
offers from, award contracts to, or consent to subcontracts with these
contractors under those conditions and for that period.
(c) Do not enter into, renew, or extend contracts with contractors
that have been declared ineligible pursuant to 22 U.S.C. 2593e.
(d) Contractors debarred, suspended, proposed for debarment, or
voluntarily excluded, are excluded from acting as individual sureties
(see part 28).
(e)(1) After the opening of bids or receipt of proposals or quotes,
review the exclusion records in SAM.
(2) Bids received from any listed contractor in response to an
invitation for bids must be entered on the abstract of bids and then
rejected unless the agency head determines in writing that compelling
reason exists to consider the bid.
(3) Unless the agency head determines in writing that a compelling
reason exists otherwise, do not evaluate for award or include in the
competitive range proposals, quotations, or offers received from, and
do not conduct discussions with, a listed offeror during a period of
ineligibility. If the period of ineligibility expires or is terminated
prior to award, the contracting officer may, but is not required to,
consider such proposals, quotations, or offers.
(4) Immediately prior to award, review again the exclusion records
in SAM to ensure that no award is made to a listed contractor.
9.405-1 Continuation of current contracts.
(a) Contractors debarred, suspended, proposed for debarment, or
voluntarily excluded. (1) Notwithstanding the debarment, suspension,
proposed debarment, or voluntary exclusion, of a contractor, agencies
may continue contracts or subcontracts in existence at the time the
contractor was debarred, suspended, proposed for debarment, or
voluntarily excluded, unless the agency head directs otherwise. A
decision as to the type of termination action, if any, to be taken
should be made only after
[[Page 59604]]
review by agency contracting and technical personnel and by counsel to
ensure the propriety of the proposed action.
(2) For contractors debarred, suspended, proposed for debarment, or
voluntarily excluded, unless the agency head makes a written
determination of the compelling reasons for doing so, ordering
activities must not--
(i) Place orders exceeding the guaranteed minimum under indefinite
quantity contracts;
(ii) Place orders under Federal Supply Schedule contracts, blanket
purchase agreements, or basic ordering agreements; or
(iii) Add new work, exercise options, or otherwise extend the
duration of current contracts or orders.
(b) Ineligible contractors. A covered agency, as defined in 9.108-
1, must terminate existing contracts and must not place new orders or
award new contracts with contractors that have been declared ineligible
pursuant to 10 U.S.C. 983 (see 9.108), except for contracts at or below
the simplified acquisition threshold or contracts for the acquisition
of commercial products and commercial services.
9.405-2 Restrictions on subcontracting.
(a) If an offeror proposes a contractor debarred, suspended,
proposed for debarment, or voluntarily excluded, as a subcontractor for
any subcontract subject to Government consent (see part 44), do not
consent to such subcontracts unless the agency head states in writing
the compelling reasons for this approval action. (See 9.405 concerning
declarations of ineligibility affecting subcontracting.)
(b) The Government suspends or debars contractors to protect the
Government's interests. Contractors are prohibited from entering into
any subcontract in excess of $45,000, other than a subcontract for a
commercially available off-the-shelf item, with a contractor that has
been debarred, suspended, proposed for debarment, or voluntarily
excluded, unless a compelling reason exists to do so. If a contractor
intends to enter into a subcontract in excess of $45,000, other than a
subcontract for a commercially available off-the-shelf item, with a
party that is debarred, suspended, proposed for debarment, or
voluntarily excluded, as evidenced by the party's having an active
exclusion record (see 9.404), a corporate officer or designee of the
contractor is required by operation of the clause at 52.209-6,
Protecting the Government's Interest when Subcontracting with
Contractors Debarred, Suspended, Proposed for Debarment, or Voluntarily
Excluded, to notify the contracting officer, in writing, before
entering into such subcontract. For contracts for the acquisition of
commercial products, the notification requirement applies only for
first-tier subcontracts. For all other contracts, the notification
requirement applies to subcontracts at any tier. The notice must
provide the following:
(1) The name of the subcontractor;
(2) The contractor's knowledge of the reasons for the subcontractor
having an active exclusion record;
(3) The compelling reason(s) for doing business with the
subcontractor notwithstanding it having an active exclusion record; and
(4) The systems and procedures the contractor has established to
ensure that it is fully protecting the Government's interests when
dealing with such subcontractor in view of the specific basis for the
party's debarment, suspension, proposed debarment, or voluntary
exclusion.
(c) The contractor's compliance with the requirements of 52.209-6
will be reviewed during Contractor Purchasing System Reviews (see part
44).
9.406 Debarment.
9.406-1 General.
(a) The suspending and debarring official is responsible for
determining whether debarment is in the Government's interest. The
suspending and debarring official may, in the public interest, debar a
contractor for any of the causes in 9.406-2, using the procedures in
9.406-3. The existence of a cause for debarment, however, does not
necessarily require that the contractor be debarred; the seriousness of
the contractor's acts or omissions and any remedial measures,
mitigating factors, or aggravating factors should be considered in
making any debarment decision. Before arriving at any debarment
decision, the suspending and debarring official should consider factors
such as the following (some of the factors below could apply to
individuals such as contractors that are individuals, and are so
marked):
(1) Whether the contractor had effective standards of conduct and
internal control systems in place at the time of the activity which
constitutes cause for debarment or had adopted such procedures prior to
any Government investigation of the activity cited as a cause for
debarment.
(2) Whether the contractor (including an individual) brought the
activity cited as a cause for debarment to the attention of the
appropriate Government agency in a timely manner.
(3) Whether the contractor has fully investigated the circumstances
surrounding the cause for debarment (or the individual cooperated with
the investigation) and, if so, made the result of the investigation
available to the suspending and debarring official.
(4) Whether the contractor (including an individual) cooperated
fully with Government agencies during the investigation and any court
or administrative action.
(5) Whether the contractor (including an individual) has paid or
has agreed to pay all criminal, civil, and administrative liability for
the improper activity, including any investigative or administrative
costs incurred by the Government, and has made or agreed to make full
restitution.
(6) Whether the contractor has taken appropriate disciplinary
action against the individuals responsible for the activity which
constitutes cause for debarment.
(7) Whether the contractor (including an individual) has
implemented or agreed to implement remedial measures, including any
identified by the Government.
(8)(i) Whether the contractor has instituted or agreed to institute
new or revised review and control procedures, ethics training, or other
relevant training programs.
(ii) For an individual, whether the individual has attended
relevant remediation training.
(9) Whether the contractor (including an individual) has had
adequate time to eliminate the circumstances that led to the cause for
debarment.
(10)(i) Whether the contractor's management recognizes, accepts,
and understands the seriousness of the misconduct giving rise to the
cause for debarment and has implemented programs to prevent recurrence.
(ii) For an individual, whether the individual recognizes, accepts,
and understands the seriousness of the misconduct giving rise to the
cause for debarment and has adopted practices to prevent recurrence.
(11) Whether the contractor (including an individual) has a pattern
or prior history of wrongdoing, the frequency of incidents and/or
duration of the wrongdoing, and the actual or potential harm or impact
that results, or may result, from the wrongdoing.
(12) Whether and to what extent the contractor (including an
individual) planned, initiated, or carried out the wrongdoing, and the
kind of positions within the contractor's organization held by the
individual involved in the wrongdoing.
[[Page 59605]]
(13) Whether the wrongdoing was pervasive within the contractor's
organization.
(14) Whether the individual or the contractor's principals
tolerated the offense.
(15) Whether the contractor (including an individual) is or has
been excluded or disqualified by an agency of the Federal Government or
has not been allowed to participate in State or local contracts or
assistance agreements on a basis of conduct similar to one or more of
the causes for debarment specified in this subpart.
(16) Whether the contractor (including an individual) has entered
into an administrative agreement with a Federal agency or a similar
agreement with a State or local government that is not Governmentwide
but is based on conduct similar to one or more of the causes for
debarment specified in this subpart.
(17) Whether any other factors meriting consideration exist for the
contractor (including an individual) under the circumstances.
(b) The existence or nonexistence of any aggravating or mitigating
factors or remedial measures such as set forth in paragraph (a) of this
section is not necessarily determinative of a contractor's present
responsibility. Accordingly, if a cause for debarment exists, the
contractor has the burden of demonstrating, to the satisfaction of the
suspending and debarring official, its present responsibility and that
debarment is not necessary.
(c) Debarment constitutes debarment of all divisions or other
organizational elements of the contractor, unless the debarment
decision is limited by its terms to specific divisions, organizational
elements, or commodities. The suspending and debarring official may
extend the debarment decision to include any affiliates of the
contractor if they are--
(1) Specifically named; and
(2) Given written notice of the proposed debarment and an
opportunity to respond (see 9.406-3(c)).
(d) A contractor's debarment, or proposed debarment, is effective
throughout the executive branch of the Government, unless the agency
head or a designee (except see 26.605-1(e)) states in writing the
compelling reasons justifying continued business dealings between that
agency and the contractor.
(e)(1) When the suspending and debarring official has authority to
debar contractors from both contracts pursuant to the Federal
Acquisition Regulation in this chapter and contracts for the purchase
of Federal personal property pursuant to the Federal Management
Regulation (FMR) in 41 CFR part 102-38, that official must consider
simultaneously debarring the contractor from the award of acquisition
contracts and from the purchase of Federal personal property.
(2) A notice debarring a contractor from the award of acquisition
contracts and from the purchase of Federal personal property must
include the appropriate FAR and FMR citations.
9.406-2 Causes for debarment.
The suspending and debarring official may debar--
(a) A contractor for a conviction of or civil judgment for--
(1) Commission of fraud or a criminal offense in connection with--
(i) Obtaining;
(ii) Attempting to obtain; or
(iii) Performing a public contract or subcontract.
(2) Violation of Federal or State antitrust statutes relating to
the submission of offers;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax
evasion, violating Federal criminal tax laws, or receiving stolen
property;
(4) Intentionally affixing a label bearing a ``Made in America''
inscription (or any inscription having the same meaning) to a product
sold in or shipped to the United States or its outlying areas, when the
product was not made in the United States or its outlying areas (see
Section 202 of the Defense Production Act (Public Law 102-558)); or
(5) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a Government contractor or subcontractor.
(b)(1) A contractor, based upon a preponderance of the evidence,
for any of the following--
(i) Violation of the terms of a Government contract or subcontract
so serious as to justify debarment, such as--
(A) Willful failure to perform in accordance with the terms of one
or more contracts; or
(B) A history of failure to perform, or of unsatisfactory
performance of, one or more contracts.
(ii) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as
indicated by--
(A) Failure to comply with the requirements of the clause at
52.226-7, Drug-Free Workplace; or
(B) Such a number of contractor employees convicted of violations
of criminal drug statutes occurring in the workplace as to indicate
that the contractor has failed to make a good faith effort to provide a
drug-free workplace (see 26.605-1).
(iii) Intentionally affixing a label bearing a ``Made in America''
inscription (or any inscription having the same meaning) to a product
sold in or shipped to the United States or its outlying areas, when the
product was not made in the United States or its outlying areas (see
Section 202 of the Defense Production Act (Public Law 102-558)).
(iv) Commission of an unfair trade practice as defined in 9.403
(see Section 201 of the Defense Production Act (Public Law 102-558)).
(v) Delinquent Federal taxes in an amount that exceeds the
threshold at 9.104-4(a)(2). Federal taxes are considered delinquent for
purposes of this provision if both of the following criteria apply:
(A) The tax liability is finally determined. The liability is
finally determined if it has been assessed. A liability is not finally
determined if a pending administrative or judicial challenge remains.
In the case of a judicial challenge to the liability, the liability is
not finally determined until all judicial appeal rights have been
exhausted.
(B) The taxpayer is delinquent in making payment. A taxpayer is
delinquent if the taxpayer has failed to pay the tax liability when
full payment was due and required. A taxpayer is not delinquent in
cases where enforced collection action is precluded.
(vi) Knowing failure by a principal, until 3 years after final
payment on any Government contract awarded to the contractor, to timely
disclose to the Government, in connection with the award, performance,
or closeout of the contract or a subcontract thereunder, credible
evidence of--
(A) Violation of Federal criminal law involving fraud, conflict of
interest, bribery, or gratuity violations found in Title 18 of the
United States Code;
(B) Violation of the civil False Claims Act (31 U.S.C. 3729-3733);
or
(C) Significant overpayment(s) on the contract, other than
overpayments resulting from contract financing payments as defined in
32.001.
(vii) Determination of a false certification under 52.209-13,
Violation of Arms Control Treaties or Agreements-Certification.
(viii) Failure to comply with the requirements of the clause at
52.222-XX, Addressing DEI Discrimination by Federal Contractors.
(2) A contractor, based on a determination by the Secretary of
[[Page 59606]]
Homeland Security or the Attorney General of the United States, that
the contractor is not in compliance with Immigration and Nationality
Act employment provisions (see Executive Order 12989, as amended by
Executive Order 13286). Such determination is not reviewable in the
debarment proceedings.
(c) A contractor or subcontractor based on any other cause of so
serious or compelling a nature that it affects the present
responsibility of the contractor or subcontractor.
9.406-3 Procedures.
(a) Investigation and referral. Agencies must establish procedures
for the prompt reporting, investigation, and referral to the suspending
and debarring official of matters appropriate for that official's
consideration.
(b) Decision-making process. (1) Agencies must establish procedures
governing the debarment decision-making process that are as informal as
is practicable, consistent with principles of fundamental fairness.
These procedures must afford the contractor (and any specifically named
affiliates) an opportunity to submit, in person, in writing, or through
a representative, information and argument in opposition to the
proposed debarment. If the suspending and debarring official extends
the opportunity for the contractor to submit material in opposition,
then the official should also give a deadline for submission of
materials. The suspending and debarring official may use flexible
procedures to allow a contractor to present matters in opposition in
person or remotely through appropriate technology; if so, the
suspending and debarring official should change the notice in paragraph
(c)(3)(iv) of this section to include those flexible procedures.
(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, agencies must also--
(i) Afford the contractor an opportunity to appear with counsel,
submit documentary evidence, present witnesses, and confront any person
the agency presents; and
(ii) Make a transcribed record of the proceedings and make it
available at cost to the contractor upon request, unless the contractor
and the agency, by mutual agreement, waive the requirement for a
transcript.
(c) Notice of proposal to debar. The suspending and debarring
official must issue the notice of proposed debarment to the contractor
and any specifically named affiliates.
(1) The written notice must be sent--
(i) By U.S. mail or private delivery service to the last known
street address, with delivery notification service;
(ii) By email to the point of contact email address in the
contractor's SAM registration, if any, or to the last known email
address as confirmed by the agency; or
(iii) By certified mail to the last known street address with
return receipt requested.
(2) The notice must be sent--
(i) To the contractor, the contractor's identified counsel for
purposes of the administrative proceedings, or the contractor's agent
for service of process; and
(ii) For each specifically named affiliate, to the affiliate
itself, the affiliate's identified counsel for purposes of the
administrative proceedings, or the affiliate's agent for service of
process.
(3) The notice must state--
(i) That debarment is being considered;
(ii) The reasons for the proposed debarment in terms sufficient to
put the contractor on notice of the conduct or transaction(s) upon
which it is based;
(iii) The cause(s) relied upon under 9.406-2 for proposing
debarment;
(iv) That, within 30 days after receipt of the notice, the
contractor may submit, in person, in writing, or through a
representative, information and argument in opposition to the proposed
debarment, including any additional specific information that raises a
genuine dispute over the material facts;
(v) The agency's procedures governing debarment decision making;
(vi) The effect of the issuance of the notice of proposed
debarment;
(vii) The potential effect of an actual debarment;
(viii) That in addition to any information and argument in
opposition to a proposed debarment, the contractor must identify--
(A) Specific facts that contradict the statements contained in the
notice of proposed debarment. Include any information about any of the
factors listed in 9.406-1(a). A general denial is insufficient to raise
a genuine dispute over facts material to the proposed debarment;
(B) All existing, proposed, or prior exclusions and all similar
actions taken by Federal, State, or local agencies, including
administrative agreements that affect only those agencies;
(C) All criminal and civil proceedings not included in the notice
of proposed debarment that grew out of facts relevant to the cause(s)
stated in the notice; and
(D) All of the contractor's affiliates; and
(ix) That if the contractor fails to disclose the information in
paragraph (c)(3)(viii) of this section, or provides false information,
the agency taking the action may seek further criminal, civil, or
administrative action against the contractor, as appropriate.
(d) Suspending and debarring official's decision. (1) In actions
based upon a conviction or civil judgment, or in which no genuine
dispute exists over material facts, the suspending and debarring
official must decide based on all the information in the administrative
record, including any contractor submission. If no suspension is in
effect, the suspending and debarring official must make a decision
within 45 days from the date that the official administrative record is
closed, unless the suspending and debarring official extends this
period for good cause. The official record closes upon the expiration
of the contractor's time to submit information and argument in
opposition, including any extensions (see paragraph (b)(1) of this
section).
(2)(i) In actions in which additional proceedings are necessary as
to disputed material facts, written findings of fact must be prepared.
The suspending and debarring official must base the decision on the
facts as found, together with any information and argument submitted by
the contractor and any other information in the administrative record.
(ii) The suspending and debarring official may refer matters
involving disputed material facts to another official for findings of
fact. The suspending and debarring official may reject any such
findings, in whole or in part, only after specifically determining them
to be arbitrary and capricious or clearly erroneous.
(iii) The suspending and debarring official must make a decision
after the conclusion of the proceedings with respect to disputed facts.
(3) In any action in which the proposed debarment is not based upon
a conviction or civil judgment, the cause for debarment must be
established by a preponderance of the evidence.
(e) Notice of suspending and debarring official's decision. (1) If
the suspending and debarring official decides to impose debarment, the
contractor and any affiliates involved must be given prompt notice
using the procedures in paragraphs (c)(1) and (2) of this section--
(i) Referring to the notice of proposed debarment;
[[Page 59607]]
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective throughout the
executive branch of the Government unless the head of an agency or a
designee makes the statement called for by 9.406-1(d).
(2) If debarment is not imposed, the suspending and debarring
official must promptly notify the contractor and any affiliates
involved, using the procedures in paragraphs (c)(1) and (2) of this
section.
(f) Administrative agreements. (1) If the contractor enters into an
administrative agreement with the Government in order to resolve a
debarment or potential debarment proceeding, the suspending and
debarring official must access the integrity records in <a href="http://CPARS.gov">CPARS.gov</a>,
enter the requested information, and upload documentation reflecting
the administrative agreement.
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
administrative agreement. The submission should be made within 3
business days.
(3) With regard to information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official must follow the procedures at 9.105-2(b)(2)(ii).
(g) Voluntary exclusions. (1) If the contractor enters into a
voluntary exclusion with the Government in order to resolve a debarment
or potential debarment matter, the suspending and debarring official
must access the System for Award Management website (available at
<a href="https://www.sam.gov">https://www.sam.gov</a>) and enter the requested information into the
exclusions section of SAM (see 9.404(c)(3)).
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
voluntary exclusion. The submission should be made within 3 business
days.
(3) Regarding information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official must follow the procedures at 9.105-2(b)(2)(ii).
(h) Pre-notice letters. Prior to initiating a proposed debarment,
the suspending and debarring official has discretion to issue a pre-
notice letter. A pre-notice letter is not required to initiate
debarment under this subpart. (See 9.403.)
9.406-4 Period of debarment.
(a)(1) Debarment must be for a period commensurate with the
seriousness of the cause(s). Generally, debarment should not exceed 3
years, except that--
(i) Debarment for violation of the provisions of 41 U.S.C. chapter
81, Drug-Free Workplace (see 26.605-1(e)) may be for a period not to
exceed 5 years;
(ii) Debarments under 9.406-2(b)(2) must be for 1 year unless
extended pursuant to paragraph (b) of this section; and
(iii) Debarments under 9.406-2(b)(1)(vii) must be for a period of
not less than 2 years, inclusive of any suspension period, if
suspension precedes a debarment (see paragraph (a)(2) of this section).
(2) If suspension precedes a debarment, the suspension period
factors into determining the debarment period.
(b) The suspending and debarring official may extend the debarment
for an additional period, if that official determines that an extension
is necessary to protect the Government's interest. However, a debarment
may not be extended solely on the basis of the facts and circumstances
upon which the initial debarment action was based. Debarments under
9.406-2(b)(2) may be extended for additional periods of one year if the
Secretary of Homeland Security or the Attorney General determines that
the contractor continues to be in violation of the employment
provisions of the Immigration and Nationality Act. Upon determining
that debarment for an additional period is necessary, the suspension
and debarring official must follow the procedures in 9.406-3 to extend
the debarment.
(c) The suspending and debarring official may reduce the period or
extent of debarment, upon the contractor's request, supported by
documentation, for reasons such as--
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was
imposed; or
(5) Other reasons the suspending and debarring official deems
appropriate.
9.406-5 Scope of debarment.
(a) The fraudulent, criminal, or other seriously improper conduct
of any officer, director, shareholder, partner, employee, or other
individual associated with a contractor may be imputed to the
contractor when the conduct occurred in connection with the
individual's performance of duties for or on behalf of the contractor,
or with the contractor's knowledge, approval, or acquiescence. The
contractor's acceptance of the benefits derived from the conduct is
evidence of such knowledge, approval, or acquiescence.
(b) The fraudulent, criminal, or other seriously improper conduct
of a contractor may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the contractor
who participated in, knew of, or had reason to know of the contractor's
conduct.
(c) The fraudulent, criminal, or other seriously improper conduct
of one contractor participating in a joint venture or similar
arrangement may be imputed to other participating contractors if the
conduct occurred for or on behalf of the joint venture or similar
arrangement, or with the knowledge, approval, or acquiescence of these
contractors. Acceptance of the benefits derived from the conduct is
evidence of such knowledge, approval, or acquiescence.
9.407 Suspension.
9.407-1 General.
(a) The suspending and debarring official may, in the public
interest, suspend a contractor for any of the causes in 9.407-2, using
the procedures in 9.407-3.
(b)(1) Suspension is a serious action to be imposed based on
adequate evidence, pending the completion of an investigation or legal
proceedings, when the suspending and debarring official determines that
immediate action is necessary to protect the Government's interest. In
deciding whether immediate action is necessary to protect the
Government's interest, the suspending and debarring official has wide
discretion. The suspending and debarring official may infer the
necessity for immediate action to protect the Government's interest
either from the nature of the circumstances giving rise to a cause for
suspension or from potential business relationships or involvement with
a program of the Federal Government. In assessing the adequacy of the
evidence, agencies should consider how much information is available,
how credible it is given the circumstances, whether important
allegations are corroborated, and what inferences can reasonably be
drawn as a result. This assessment should include an examination of
basic documents such as contracts, inspection reports, and
correspondence. An indictment or other
[[Page 59608]]
official findings by Federal, State, or local bodies that determine
factual and/or legal matters, constitutes adequate evidence for
purposes of suspension actions.
(2) The existence of a cause for suspension does not necessarily
require that the contractor be suspended. The suspending and debarring
official should consider the seriousness of the contractor's acts or
omissions and may, but is not required to, consider remedial measures,
mitigating factors, or aggravating factors, such as those in 9.406-
1(a). A contractor has the burden of promptly presenting to the
suspending and debarring official evidence of remedial measures or
mitigating factors when it has reason to know that a cause for
suspension exists. The existence or nonexistence of any remedial
measures or aggravating or mitigating factors is not necessarily
determinative of a contractor's present responsibility.
(c) Suspension constitutes suspension of all divisions or other
organizational elements of the contractor, unless the suspension
decision is limited by its terms to specific divisions, organizational
elements, or commodities. The suspending and debarring official may
extend the suspension decision to include any affiliates of the
contractor if they are--
(1) Specifically named; and
(2) Given written notice of the suspension and an opportunity to
respond (see 9.407-3(c)).
(d) A contractor's suspension is effective throughout the executive
branch of the Government, unless the agency head or a designee (except
see 26.605-1(e)) states in writing the compelling reasons justifying
continued business dealings between that agency and the contractor.
(e)(1) When the suspending and debarring official has authority to
suspend contractors from both contracts pursuant to the Federal
Acquisition Regulation in this chapter and contracts for the purchase
of Federal personal property pursuant to Federal Management Regulation
(FMR) in 41 CFR part 102-38, that official must consider simultaneously
suspending the contractor from the award of acquisition contracts and
from the purchase of Federal personal property.
(2) A notice suspending a contractor from the award of acquisition
contracts and from the purchase of Federal personal property must
include the appropriate FAR and FMR citations.
9.407-2 Causes for suspension.
(a) The suspending and debarring official may suspend a contractor
suspected, upon adequate evidence, of--
(1) Commission of fraud or a criminal offense in connection with--
(i) Obtaining;
(ii) Attempting to obtain; or
(iii) Performing a public contract or subcontract.
(2) Violation of Federal or State antitrust statutes relating to
the submission of offers;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax
evasion, violating Federal criminal tax laws, or receiving stolen
property;
(4) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as
indicated by--
(i) Failure to comply with the requirements of the clause at
52.226-7, Drug-Free Workplace; or
(ii) Such a number of contractor employees convicted of violations
of criminal drug statutes occurring in the workplace as to indicate
that the contractor has failed to make a good faith effort to provide a
drug-free workplace (see 26.605-1);
(5) Intentionally affixing a label bearing a ``Made in America''
inscription (or any inscription having the same meaning) to a product
sold in or shipped to the United States or its outlying areas, when the
product was not made in the United States or its outlying areas (see
Section 202 of the Defense Production Act (Public Law 102-558));
(6) Commission of an unfair trade practice as defined in 9.403 (see
section 201 of the Defense Production Act (Pub. L. 102-558));
(7) Delinquent Federal taxes in an amount that exceeds the
threshold at 9.104-4(a)(2). See the criteria at 9.406-2(b)(1)(v) for
determination of when taxes are delinquent;
(8) Knowing failure by a principal, until 3 years after final
payment on any Government contract awarded to the contractor, to timely
disclose to the Government, in connection with the award, performance,
or closeout of the contract or a subcontract thereunder, credible
evidence of--
(i) Violation of Federal criminal law involving fraud, conflict of
interest, bribery, or gratuity violations found in Title 18 of the
United States Code;
(ii) Violation of the civil False Claims Act (31 U.S.C. 3729-3733);
or
(iii) Significant overpayment(s) on the contract, other than
overpayments resulting from contract financing payments as defined in
32.001; or
(9) Determination of a false certification under 52.209-13,
Violation of Arms Control Treaties or Agreements-Certification.
(10) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a Government contractor or subcontractor.
(11) Failure to comply with the requirements of the clause at
52.222-XX, Addressing DEI Discrimination by Federal Contractors.
(b) Indictment for any of the causes in paragraph (a) of this
section constitutes adequate evidence for suspension.
(c) The suspending and debarring official may upon adequate
evidence also suspend a contractor for any other cause of so serious or
compelling a nature that it affects the present responsibility of a
Government contractor or subcontractor.
9.407-3 Procedures.
(a) Investigation and referral. Agencies must establish procedures
for the prompt reporting, investigation, and referral to the suspending
and debarring official of matters appropriate for that official's
consideration.
(b) Decision-making process. (1) Agencies must establish procedures
governing the suspension decision-making process that are as informal
as is practicable, consistent with principles of fundamental fairness.
These procedures must afford the contractor (and any specifically named
affiliates) an opportunity, following the imposition of suspension, to
submit, in person, in writing, or through a representative, information
and argument in opposition to the suspension. If the suspending and
debarring official extends the opportunity for the contractor to submit
material in opposition, then the official should also give a deadline
for submission of materials. The suspending and debarring official may
use the flexible procedures in 9.406-3(b)(1); if so, the suspending and
debarring official should change the notice in paragraph (c)(5) of this
section to include those flexible procedures.
(2) In actions not based on 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 advice from the Department of Justice, a U.S. Attorney's office,
State attorney general's office, or a State or local prosecutor's
office, that substantial interests of the Government in pending or
contemplated legal proceedings based on the same facts as the
suspension would be prejudiced, agencies must also--
[[Page 59609]]
(i) Afford the contractor an opportunity to appear with counsel,
submit documentary evidence, present witnesses, and confront any person
the agency presents; and
(ii) Make a transcribed record of the proceedings and make it
available at cost to the contractor upon request, unless the contractor
and the agency, by mutual agreement, waive the requirement for a
transcript.
(c) Notice of suspension. When a contractor and any specifically
named affiliates are suspended, the suspending and debarring official
must immediately notify them using the procedures in 9.406-3(c)(1) and
(2). While describing any irregularities in terms sufficient to place
the contractor on notice without disclosing the Government's evidence,
the notice must state--
(1) That they have been suspended and that the suspension is based
on an indictment or other adequate evidence that the contractor has
committed irregularities--
(i) Of a serious nature in business dealings with the Government;
or
(ii) Seriously reflecting on the propriety of further Government
dealings with the contractor;
(2) That the suspension is for a temporary period pending the
completion of an investigation and such legal proceedings as may ensue;
(3) Of the cause(s) relied upon under 9.407-2 for imposing
suspension;
(4) Of the effect of the suspension;
(5) That, within 30 days after receipt of the notice, the
contractor may submit, in person, in writing, or through a
representative, information and argument in opposition to the
suspension, including any additional specific information that raises a
genuine dispute over the material facts;
(6) That additional proceedings to determine disputed material
facts will be conducted unless--
(i) The action is based on an indictment; or
(ii) A determination is made, on the basis of advice by the
Department of Justice, a U.S. Attorney's office, State attorney
general's office, or a State or local prosecutor's office, that the
substantial interests of the Government in pending or contemplated
legal proceedings based on the same facts as the suspension would be
prejudiced;
(7) That, in addition to any information and argument in opposition
to a suspension, the contractor must identify-
(i) Specific facts that contradict the statements contained in the
notice of suspension. Include any information about any of the factors
listed in 9.406-1(a). A general denial is insufficient to raise a
genuine dispute over facts material to the suspension;
(ii) All existing, proposed, or prior exclusions and all similar
actions taken by Federal, State, or local agencies, including
administrative agreements that affect only those agencies;
(iii) All criminal and civil proceedings not included in the notice
of suspension that grew out of facts relevant to the cause(s) stated in
the notice; and
(iv) All of the contractor's affiliates; and
(8) That if the contractor fails to disclose the information in
paragraph (c)(7) of this section or provides false information, the
agency taking the action may seek further criminal, civil, or
administrative action against the contractor, as appropriate.
(d) Suspending and debarring official's decision. (1) The
suspending and debarring official must make a decision based on all the
information in the administrative record, including any submission from
the contractor, for actions--
(i) Based on an indictment;
(ii) In which the contractor's submission does not raise a genuine
dispute over material facts; or
(iii) In which additional proceedings to determine disputed
material facts have been denied based on advice from the Department of
Justice, a U.S. Attorney's office, State attorney general's office, or
a State or local prosecutor's office.
(2)(i) In actions in which additional proceedings are necessary as
to disputed material facts, written findings of fact must be prepared.
The suspending and debarring official must base the decision on the
facts as found, together with any information and argument submitted by
the contractor and any other information in the administrative record.
(ii) The suspending and debarring official may refer matters
involving disputed material facts to another official for findings of
fact. The suspending and debarring official may reject any such
findings, in whole or in part, only after specifically determining them
to be arbitrary and capricious or clearly erroneous.
(iii) The suspending and debarring official must make a decision
after the conclusion of the proceedings with respect to disputed facts.
(3) The suspending and debarring official may modify or terminate
the suspension or leave it in force (for example, see 9.406-4(c) for
the reasons for reducing the period or extent of debarment). However, a
decision to modify or terminate the suspension must be without
prejudice to the subsequent imposition of--
(i) Suspension by any other agency; or
(ii) Debarment by any agency.
(4) Prompt written notice of the suspending and debarring
official's decision must be sent to the contractor and any affiliates
involved, using the procedures in 9.406-3(c)(1) and (2).
(e) Administrative agreement. (1) If the contractor enters into an
administrative agreement with the Government to resolve a suspension or
potential suspension proceeding, the suspending and debarring official
must access the integrity records in <a href="http://CPARS.gov">CPARS.gov</a>, enter the requested
information, and upload documentation reflecting the administrative
agreement.
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
administrative agreement. The submission should be made within 3
business days.
(3) With regard to information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official must follow the procedures at 9.105-2(b)(2)(ii).
(f) Voluntary exclusion. (1) If the contractor enters into a
voluntary exclusion with the Government in order to resolve a
suspension or potential suspension proceeding, the suspending and
debarring official must access the website (available at <a href="https://www.sam.gov">https://www.sam.gov</a>) and enter the requested information into the exclusions
section of SAM (see 9.404(c)(3)).
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
voluntary exclusion. The submission should be made within 3 business
days.
(3) Regarding information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official must follow the procedures at 9.105-2(b)(2)(ii).
(g) Pre-notice letter. Prior to initiating a suspension, the
suspending and debarring official has discretion to issue a pre-notice
letter. A pre-notice letter is not required to initiate suspension
under this subpart. (See 9.403.)
9.407-4 Period of suspension.
(a) Suspension must be for a temporary period pending the
completion of an investigation and any ensuing legal proceedings,
unless sooner terminated by the suspending and debarring official or as
provided in this section.
[[Page 59610]]
(b) If legal proceedings are not initiated within 12 months after
the date of the suspension notice, the suspension must be terminated
unless an office of a U.S. Assistant Attorney General, U.S. Attorney,
or other responsible prosecuting official requests its extension, in
which case it may be extended for an additional 6 months. In no event
may a suspension extend beyond 18 months, unless legal proceedings have
been initiated within that period.
(c) The suspending and debarring official must notify the
Department of Justice or other responsible prosecuting official of the
proposed termination of the suspension, at least 30 days before the 12-
month period expires, to give that official an opportunity to request
an extension on the Government's behalf.
9.407-5 Scope of suspension.
The scope of suspension must be the same as that for debarment (see
9.406-5), except that the procedures of 9.407-3 must be used in
imposing suspension.
9.408 Contract clause.
(a) Insert the clause at 52.209-6, Protecting the Government's
Interest when Subcontracting with Contractors Debarred, Suspended,
Proposed for Debarment, or Voluntarily Excluded, in solicitations and
contracts when the acquisition value exceeds $45,000, including those
for commercial products (other than commercially available off-the-
shelf items) and commercial services.
(b) Use the clause with its Alternate I for acquisitions of
commercial products (other than commercially available off-the-shelf
items).
Subpart 9.5--Organizational and Consultant Conflicts of Interest
9.500 Scope of subpart.
This subpart:
(a) Prescribes responsibilities, general rules, and procedures for
identifying, evaluating, and resolving organizational conflicts of
interest;
(b) Provides examples to assist contracting officers in applying
these rules and procedures to individual contracting situations; and
(c) Implements section 8141 of the 1989 Department of Defense
Appropriations Act (Pub. L. 100-463) 102 Stat. 2270-47 (1988).
9.501 Definition.
As used in this subpart--
Marketing consultant means any independent contractor who furnishes
advice, information, direction, or assistance to an offeror or any
other contractor in support of the preparation or submission of an
offer for a Government contract by that offeror. An independent
contractor is not a marketing consultant when rendering--
(1) Services excluded in subpart 37.4;
(2) Routine engineering and technical services (such as
installation, operation, or maintenance of systems, equipment,
software, components, or facilities);
(3) Routine legal, actuarial, auditing, and accountin
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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.