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48 CFR Ch. 29 (10–1–07 Edition)
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ER27AP04.006
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submitted through the contracting officer to the Office of Small Business
Programs for review.
CHAPTER 30—DEPARTMENT OF HOMELAND
SECURITY, HOMELAND SECURITY ACQUISITION
REGULATION (HSAR)
(Parts 3000 to 3099)
SUBCHAPTER A—GENERAL
Part
3001
3002
3003
3004
Page
Federal Acquisition Regulations System ................
Definitions of words and terms ...............................
Improper business practices and personal conflicts
Of interest ............................................................
Administrative matters ..........................................
61
66
67
69
SUBCHAPTER B—ACQUISITION PLANNING
3005
3006
3007
3008
3009
3010
3011
3012
Publicizing contract actions ...................................
Competition requirements ......................................
Acquisition planning [Reserved]
Required sources of supplies and services [Reserved]
Contractor qualifications ........................................
Market research [Reserved]
Describing agency needs .........................................
Acquisition of commercial items [Reserved]
71
71
72
75
SUBCHAPTER C—CONTRACT METHODS AND CONTRACT TYPES
3013
3014
3015
3016
3017
3018
Simplified acquisition procedures ...........................
Sealed bidding [Reserved]
Contracting by negotiation .....................................
Types of contracts ...................................................
Special contracting methods ...................................
[Reserved]
77
78
79
80
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SUBCHAPTER D—SOCIOECONOMIC PROGRAMS
3019
Small business programs .........................................
3020–3021 [Reserved]
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48 CFR Ch. 30 (10–1–07 Edition)
Part
3022
3023
3024
3025
3026
3027
3028
Page
Application of labor laws to government acquisitions .....................................................................
Environment, conservation, occupational safety,
and drug-free workplace .......................................
Protection of privacy and freedom of information
Foreign acquisition [Reserved]
Other socioeconomic programs [Reserved]
Patents, data and copyrights ..................................
Bonds and insurance ................................................
84
85
86
86
86
SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS
3029
3030
3031
3032
3033
3034
Taxes [Reserved]
Cost accounting standards administration .............
Contract cost principles and procedures .................
Contract financing ..................................................
Protests, disputes, and appeals ...............................
Major system acquisition [Reserved]
91
91
91
92
SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING
3035
3036
3037
3038
3039
3040
3041
Research and development contracting ..................
Construction and architect-engineer contracts ......
Service contracting .................................................
Federal supply schedule contracting [Reserved]
Acquisition of information technology [Reserved]
[Reserved]
Acquisition of utility services [Reserved]
93
93
94
SUBCHAPTER G—CONTRACT MANAGEMENT
3042
3043
3044
3045
3046
3047
3048
3049
3050
3051
Contract administration and audit services ...........
Contract modifications [Reserved]
Subcontracting policies and procedures [Reserved]
Government property ..............................................
Quality assurance ....................................................
Transportation ........................................................
Value engineering [Reserved]
Termination of contracts [Reserved]
Extraordinary contractual actions [Reserved]
Use of government sources by contractors [Reserved]
97
97
98
101
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SUBCHAPTER H—CLAUSES AND FORMS
3052
3053
Solicitation provisions and contract clauses ..........
Forms ......................................................................
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121
SUBCHAPTER A—GENERAL
PART 3001—FEDERAL ACQUISITION
REGULATIONS SYSTEM
Subpart 3001.1—Purpose,
Authority, Issuance
3001.101
Subpart 3001.1—Purpose, Authority,
Issuance
The Department of Homeland Security Acquisition Regulation (HSAR) establishes uniform acquisition policies
and procedures, which implement and
supplement the Federal Acquisition
Regulation (FAR).
Sec.
3001.101 Purpose.
3001.102 Statement of Guiding Principles for
the Federal Acquisition System.
3001.104 Applicability.
3001.105 Issuance.
3001.105–1 Publication and code arrangement.
3001.105–2 Arrangement of regulations.
3001.105–3 Copies.
3001.106 OMB Approval under the Paperwork Reduction Act.
3001.102 Statement of Guiding Principles for the Federal Acquisition
System.
(d) The FAR and this supplement are
to be interpreted permissively, if consistent with statutory and regulatory
requirements, policy, and sound professional judgment.
Subpart 3001.3—Agency Acquisition
Regulations
3001.301 Policy.
3001.301–70 Amendment of HSAR.
3001.301–71 Effective date.
3001.301–72 HSAC or HSAR Notice numbering.
3001.303 Publication and codification.
3001.304 Agency control and compliance procedures.
3001.104
Individual deviations.
Class deviations.
Subpart 3001.6—Career Development,
Contracting Authority, and Responsibilities
3001.601 General.
3001.602 Contracting Officers.
3001.602–3 Ratification of unauthorized commitments.
3001.603 Selection, appointment, and termination of appointment.
3001.603–1 General.
Subpart 3001.7—Determinations and
Findings
3001.704
Content.
Subpart 3001.70—Other Determinations,
Waivers, Exceptions, Approvals, Reviews, and Submittals.
3001.7000
3001.7001
Coordination and approval.
Content.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
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Applicability.
(a) The following order of precedence
applies to resolve any acquisition regulation or procedural inconsistency
found within HSAR or the Homeland
Security Acquisition Manual (HSAM):
(1) Statute;
(2) FAR or other applicable regulation or Executive Order;
(3) HSAR;
(4) Department of Homeland Security
(DHS) Directives; and
(5) HSAM.
(b) The Transportation Security Administration (TSA) exception to this
regulation is authorized by the Aviation and Transportation Security Act
of 2001 (section 101(a) of Public Law
107–71).
(c) Contracts involving Non-Appropriated
Fund
Instrumentalities
(NAFIs) must contain suitable dispute
provisions and may provide for appellate dispute jurisdiction in the Civilian
Board of Contract Appeals (CBCA).
However, the contract must not attempt to confer court jurisdiction that
does not otherwise exist.
(d) The FAR and HSAR may be followed, where feasible, for:
(1) No-cost contracts;
(2) Concession contracts; and
Subpart 3001.4—Deviations from the FAR
3001.403
3001.404
Purpose.
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
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3001.105
48 CFR Ch. 30 (10–1–07 Edition)
OMB Control No. 1600–005 (Offeror submissions)
OMB Control No. 1600–003 (Contractor
submissions)
OMB Control No. 1600–004 (Protests)
(3) Contracts on behalf of NAFIs entered into by appropriated fund contracting officers.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25767, May 2, 2006; 72 FR 1297, Jan. 11,
2007]
3001.105
(b) OMB regulations and OMB’s approval and assignment of control numbers are conditioned upon not requiring
more than three copies (including the
original) of any document of information. OMB has granted a waiver to permit the Department to require up to
eight copies of proposal packages, including proprietary data, for solicitations, provided that contractors who
submit only an original and two copies
will not be placed at a disadvantage.
Issuance.
3001.105–1 Publication and code arrangement.
(a) The HSAR is published in:
(1) The FEDERAL REGISTER and
(2) Cumulated form in the Code of
Federal Regulations (CFR).
3001.105–2 Arrangement
of
regulations.
(a) General. The HSAR, which encompasses both Department-wide and Component-unique guidance, conforms to
the arrangement and numbering system prescribed by 48 CFR 1.105–2. Guidance that is unique to a Component
contains the organization’s acronym or
abbreviation directly following the
title. The following acronyms apply:
Bureau of Customs and Border Protection (CBP);
Bureau of Immigration and Customs
Enforcement (ICE);
DHS Office of Procurement Operations
(OPO);
Federal Emergency Management Agency (FEMA);
Federal Law Enforcement Training
Center (FLETC);
Transportation Security Administration (TSA);
U.S. Coast Guard (USCG); and
U.S. Secret Service (USSS).
Subpart 3001.3—Agency
Acquisition Regulations
3001.301
(a)(1) The HSAR is issued for Departmental guidance according to the policy cited in (FAR) 48 CFR 1.301. The
HSAR establishes uniform Homeland
Security policies and procedures for all
acquisition activities within the Department of the Homeland Security,
except the TSA. Component supplemental acquisition regulations to be
inserted in the HSAR as a HSAR supplement regulation must be reviewed
and approved by the Chief Procurement
Officer (CPO) before the CPO submits
the proposed coverage for publication
in the FEDERAL REGISTER according to
(FAR) 48 CFR 1.501.
(2)(i) The CPO is authorized to issue
internal agency guidance at any organizational level. Department-wide procedures are contained in the HSAM.
The HCA may implement internal procedures or supplement the FAR, HSAR,
or HSAM as provided in HSAM 3001.3.
The HCA may issue procedures or delegate this authority to any organizational level deemed appropriate. Component procedures may be more restrictive or require higher approval
levels than those permitted by the
HSAM, unless otherwise specified.
(ii) Individuals granted authority in
the HSAR may delegate that authority, unless the FAR or HSAR specifically state that the authority is not
delegable.
[72 FR 1297, Jan. 11, 2007]
3001.105–3 Copies.
The HSAR is available in the FEDERAL REGISTER and electronically at
http://www.dhs.gov/dhspublic/.
3001.106 OMB Approval under the Paperwork Reduction Act.
(a) The Office of Management and
Budget (OMB) has assigned the following control numbers that must appear on the upper right-hand corner of
the face page of each solicitation, contract, modification, and order:
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Policy.
OMB Control No. 1600–002 (Contract related forms)
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Homeland Security Department
3001.303
Chapter 3001.301–72) will be used to
amend (HSAR) 48 Chapter 30.
(2) HSAR Notices will be issued (with
a specified expiration date) when interim guidance is necessary under any
of the following circumstances:
(i) To promulgate, as rapidly as possible, selected material in a general or
narrative manner, in advance of a
HSAC issuance;
(ii) To disseminate other acquisition
related information; or
(iii) To issue guidance that is expected to be effective for a period of 1
year or less.
(b) The Under Secretary of Management established procedures through
Management Directive (MD) 0490.1, entitled Federal Register Notice and Rules,
to ensure that agency acquisition regulations are published for comment in
the FEDERAL REGISTER in conformance
with FAR procedures at (FAR) 48 CFR
subpart 1.5.
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[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25767, May 2, 2006; 71 FR 48800, Aug. 22,
2006]
3001.301–70 Amendment of HSAR.
(a) Requests for changes to the regulation may be recommended by DHS
personnel, other Government agencies,
or the public. Change requests are to be
submitted in the following format to
the Department of Homeland Security,
Attn: Office of the Under Secretary of
Management, Chief Procurement Officer, Washington, DC 20598.
(1) Problem: Succinctly state the
problem(s) created by current HSAR
requirements or processes and describe
the factual or legal reasons for requesting a regulatory change.
(2) Recommendation: Identify the recommended change by using the current
language and lining through the words
to be deleted and inserting proposed
language in brackets. If the change is
extensive, deleted language may be displayed by forming a box with diagonal
lines connecting the corners.
(3) Discussion: Explain why the
change is necessary and how the
change will solve the problem. Address
any cost or administrative impact on
Government activities, offerors, and
contractors. Provide any other helpful
information and documents such as
statutes, legal decisions, regulations,
reports, etc.
(4) Point of Contact: Provide a point of
contact for answering questions regarding the recommendation, along
with a telephone number, e-mail or
other method of reaching the contact.
(b) The HSAR is maintained by the
CPO through the HSAR/HSAM change
process (i.e., input from various Components including representatives specifically designated to formulate Departmental acquisition policies and procedures).
(1) Homeland Security Acquisition
Circular (HSAC). HSAC (see (HSAR) 48
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25767, May 2, 2006; 71 FR 48800, Aug. 22,
2006]
3001.301–71
Effective date.
Unless otherwise stated:
(a) HSAR changes apply to solicitations issued on or after the effective
date of the change;
(b) Contracting officers may, at their
discretion, amend solicitations issued
before the effective date to include
HSAR changes, provided award of the
resulting contract(s) will occur on or
after the effective date of the change;
and
(c) Contracting officers, at their discretion, may use the changes clause or
other suitable authority to modify existing contract to include HSAR
changes.
[71 FR 25767, May 2, 2006]
3001.301–72 HSAC or HSAR Notice
numbering.
HSACs and HSAR Notices will be
numbered consecutively on a fiscal
year basis beginning with number ‘‘01’’
prefixed by the last two digits of the
fiscal year (e.g., HSAR Notices 03–01
and 03–02 indicate the first two HSAR
Notices issued in fiscal year 2003).
3001.303 Publication and codification.
(a) The HSAR is issued as chapter 30
of Title 48 of the CFR.
(1) The FAR numbering illustrations
at (FAR) 48 CFR 1.105–2 apply to the
HSAR.
(2) Coverage within HSAR 48 CFR
chapter 30 is identified by the prefix
‘‘30’’ followed by the complete FAR
cite which may extend downward to
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3001.304
48 CFR Ch. 30 (10–1–07 Edition)
(5) Component-unique guidance. Supplementary material for which there is
no counterpart in the FAR or HSAR
shall be identified using chapter, part,
subpart, section, or subsection numbers of ‘‘90’’ and up (e.g., the U.S. Coast
Guard’s acronym is ‘‘USCG’’; an USCGunique clause pertaining to ‘‘Inspection and/or Acceptance’’ would be designated ‘‘USCG 3052.246–90’’).
(6) References and citations. Cross
references to the FAR in the HSAR
will be cited by ‘‘FAR’’ followed by the
FAR numbered cite, and cross reference to the HSAM in the HSAR will
be cited by ‘‘HSAM’’ followed by the
HSAM numbered cite.
(7) Department/agency and Component supplements must parallel the
FAR and HSAR numbering, except department/agency supplemental numbering uses subsection numbering of 90
and up, instead of 70 and up.
the subparagraph level (e.g., (HSAR) 48
CFR 3001.101).
(3) Coverage in HSAR Chapter 30 that
supplements the FAR will use part,
subpart, section and subsection numbers ending in ‘‘70’’ through ‘‘89’’. A series of numbers beginning with ‘‘70’’ is
used for provisions and clauses (e.g.,
(HSAR) 48 CFR 3001.301–70).
(4) Coverage in HSAR 48 CFR chapter
30, other than that identified with a
‘‘70’’ or higher number, which implements the FAR uses the identical number sequence and caption of the FAR
segment being implemented which may
extend downward to the subparagraph
level. Subparagraph numbers/letters
may not be shown as sequential, but
may be shown by the specific paragraph/subparagraph implemented from
the FAR (e.g., (HSAR) 48 CFR 3003.301
contains subparagraphs (a) and (b) because only these subparagraphs, correlating to FAR, are being supplemented
by (HSAR) 48 CFR chapter 30).
TABLE 1–1—HSAR NUMBERING
FAR
Is implemented as
19 ...................................................................................................................
19.5 ................................................................................................................
19.501 ............................................................................................................
19.501–1 ........................................................................................................
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48800, Aug. 22, 2006]
Is supplemented as
3019.70
3019.570
3019.501–70
3019.501–170
the substance could apply to other
agencies and to make recommendation
for inclusion in the FAR.
3001.304 Agency control and compliance procedures.
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3019
3019.5
3019.501
3019.501–1
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
(a) The HSAR is under the direct
oversight and control of the Homeland
Security, Office of the Chief Procurement Officer (OCPO), which is responsible for evaluation, review, and
issuance of all Department-wide acquisition regulations and guidance. Each
HCA may supplement the HSAR with
Component guidance. Supplementation
should be kept to a minimum. Components proposing to issue regulatory
supplements or use solicitation or contract clauses on a repetitive basis must
obtain legal review by the Component’s
legal counsel and forward supplements
to the CPO for concurrence prior to
publication in the FEDERAL REGISTER.
(c) The CPO is responsible for evaluating all regulatory coverage in agency
acquisition regulations to determine if
Subpart 3001.4—Deviations from
the FAR and HSAR
3001.403 Individual deviations.
Unless precluded by law, executive
order, or other regulation, the HCA is
authorized to approve individual deviation (except with respect to (FAR) 48
CFR 30.201–3, 30.201–4; the requirements
of the Cost Accounting Standards
board rules and regulations at 48 CFR
chapter 99 (FAR appendix); and part
50). Submit requests per (HSAR) 48
CFR 3001.7000, including complete documentation of the justification for the
deviation (See HSAM 3001.403).
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
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Homeland Security Department
3001.704
being taken against an employee who
makes an unauthorized commitment.
3001.404 Class deviations.
(a) Unless precluded by law, executive order, or other regulation, the
CPO is authorized to approve FAR
class deviations, except (FAR) 48 CFR
30.201–3, and 30.201–4 (the requirements
of the Cost Accounting Standards
Board); 48 CFR Chapter 99 (FAR Appendix); and part 50. Prior to authorizing a
FAR class deviation, the CPO shall
consult with the chairperson of the Civilian Agency Acquisition Council
(CAA Council), unless the CPO determines that urgency precludes such consultation. FAR class deviation requests
shall be submitted to the CPO per
(HSAR) 48 CFR subpart 3001.70 including complete documentation of the justification for the deviation, and the estimated number and type of contract
actions affected. The CPO will transmit a copy of each approved FAR deviation to the FAR Secretariat.
3001.603 Selection, appointment, and
termination of appointment.
3001.603–1
Under DHS Delegations, the Heads of
the Contracting Activity (HCA), with
authority to redelegate no lower than
the Chief of the Contracting Office
(COCO), are authorized to select and
appoint contracting officers and terminate their appointment.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25767, May 2, 2006]
Subpart 3001.7—Determinations
and Findings
3001.704
Subpart 3001.6—Career Development, Contracting Authority,
and Responsibilities
3001.601 General.
DHS Delegation Number 0200.1, Delegation to the Directorate of Management, delegates authority from the
Secretary to the Under Secretary of
Management to manage the acquisition function. DHS Delegation 0700,
Delegation to the Chief Procurement
Officer for Acquisition and Financial
Assistance Management, delegates this
authority from the Under Secretary of
Management to the Chief Procurement
Officer.
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Content.
The following format shall be used
for all determinations and findings
(D&Fs), unless otherwise specified in
the FAR or the HSAR. The contracting
officer is responsible for preparing
D&Fs, and requirements and technical
personnel are responsible for the accuracy and adequacy of the supporting
factual information, which shall be furnished to the contracting officer.
Insert specific information indicated
in brackets.
[71 FR 25767, May 2, 2006]
3001.602
General.
Determination and Findings
Under [insert citation for appropriate statutory and/or regulatory basis for D&F], the Department of Homeland Security, [insert contracting activity], is granted authority to
[insert nature and/or description of the action
being approved].
Findings
Contracting officers.
[Findings that detail the particular circumstances, facts, or reasoning essential to support the determination.]
3001.602–3 Ratification of unauthorized commitments.
Department of Homeland Security
(DHS) policy requires that acquisitions
be made only by Government officials
having authority to enter into such acquisitions. Acquisitions made by other
than authorized personnel are contrary
to Departmental policy and may be
considered matters of serious misconduct on the part of an employee
making an unauthorized commitment,
and may result in disciplinary action
Determination
[A determination, based on the findings, that
the proposed action is justified under the applicable statute or regulation.] [Expiration date of
the D&F, if required.]
[Signature of authorized official]
Name and Title
[month, day, and year]
Date
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3001.7000
48 CFR Ch. 30 (10–1–07 Edition)
(6) Transportation Security Administration (TSA); (TSA is exempt from the
HSAR and HSAM, pursuant to the
‘‘Aviation and Transportation Security
Act of 2001’’);
(7) U.S. Coast Guard (USCG); and
(8) U.S. Secret Service (USSS).
Contracting activity includes all the
contracting offices within a Component
and is the same as the term ‘‘procuring
activity.’’
Contracting officer means an individual authorized by virtue of position
or by appointment to perform the functions assigned by the Federal Acquisition Regulation and the Homeland Security Acquisition Regulation.
Head of the Agency means the Secretary of the Department of Homeland
Security, or, by delegation, the Under
Secretary of Management.
Head of the Contracting Activity (HCA)
means the individual responsible for direct management of the entire acquisition function within a Component.
Legal counsel means the Department
of Homeland Security Office of General
Counsel or Component office providing
legal services to the contracting organization.
Legal review means review by legal
counsel.
Major system means an acquisition as
defined in Management Directive Number 1400, Investment Review Process.
Micro-purchase threshold is defined as
in (FAR) 48 CFR 2.101, except when
(HSAR) 48 CFR 3013.7003(a) applies.
Organizational Element (OE) means
the following entities for purposes of
this chapter:
(1) Bureau of Customs and Border
Protection (CBP);
(2) Bureau of Immigration and Customs Enforcement (ICE);
(3) DHS Office of Procurement Operations (OPO);
(4) Federal Emergency Management
Agency (FEMA) (Includes all elements
of the Emergency Preparedness and Response Directorate);
(5) Federal Law Enforcement Training Center (FLETC);
(6) Transportation Security Administration (TSA); (TSA is exempt from the
HSAR and HSAM according to the
‘‘Aviation and Transportation Security
Act of 2001’’);
(7) U.S. Coast Guard (USCG); and
Subpart 3001.70—Other Determinations, Waivers, Exceptions, Approvals, Reviews, and
Submittals
3001.7000
Coordination and approval.
Documents requiring CPO approval.
Requests shall be prepared in writing
by the contracting officer and submitted through the HCA to the CPO for
approval.
3001.7001
Content.
The general format at (HSAR) 48
CFR 3001.704 shall be used to provide a
justification to support the requested
determination, waiver, exception or approval.
PART 3002—DEFINITIONS OF
WORDS AND TERMS
Subpart 3002.1—Definitions
Sec.
3002.101
Definitions.
Subpart 3002.2—Abbreviations
3002.270
Abbreviations.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3002.1—Definitions
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3002.101
Definitions.
Chief Information Officer (CIO) means
the Director of the Office of the CIO.
Chief of the Contracting Office (COCO)
means the individual(s) responsible for
managing the contracting office(s)
within a Component.
Chief
Procurement
Officer
(CPO)
means the Senior Procurement Executive (SPE).
Component means the following entities for purposes of this chapter:
(1) Bureau of Customs and Border
Protection (CBP);
(2) Bureau of Immigration and Customs Enforcement (ICE);
(3) DHS Office of Procurement Operations (OPO);
(4) Federal Emergency Management
Agency (FEMA);
(5) Federal Law Enforcement Training Center (FLETC);
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Homeland Security Department
Pt. 3003
(8) U.S. Secret Service (Secret Service).
Senior Procurement Executive (SPE) for
the Department of Homeland Security
is the Chief Procurement Officer (CPO).
Sensitive Information as used in this
Chapter, means any information, the
loss, misuse, disclosure, or unauthorized access to or modification of which
could adversely affect the national or
homeland security interest, or the conduct of Federal programs, or the privacy to which individuals are entitled
under 5 U.S.C. 552a (the Privacy Act),
but which has not been specifically authorized under criteria established by
an Executive Order or an Act of Congress to be kept secret in the interest
of national defense, homeland security
or foreign policy. This definition includes the following categories of information:
(1) Protected Critical Infrastructure
Information (PCII) as set out in the
Critical Infrastructure Information Act
of 2002 (Title II, Subtitle B, of the
Homeland Security Act, Pub. L. 107–
296, 196 Stat. 2135), as amended, the implementing regulations thereto (6 CFR
part 29) as amended, the applicable
PCII Procedures Manual, as amended,
and any supplementary guidance officially communicated by an authorized
official of the Department of Homeland
Security (including the PCII Program
Manager or his/her designee);
(2) Sensitive Security Information
(SSI), as defined in 49 CFR part 1520, as
amended, ‘‘Policies and Procedures of
Safeguarding and Control of SSI,’’ as
amended, and any supplementary guidance officially communicated by an authorized official of the Department of
Homeland Security (including the Assistant Secretary for the Transportation Security Administration or his/
her designee);
(3) Information designated as ‘‘For
Official Use Only,’’ which is unclassified information of a sensitive nature
and the unauthorized disclosure of
which could adversely impact a person’s privacy or welfare, the conduct of
Federal programs, or other programs
or operations essential to the national
or homeland security interest; and
(4) Any information that is designated ‘‘sensitive’’ or subject to other
controls, safeguards or protections in
accordance with subsequently adopted
homeland security information handling procedures.
Simplified acquisition threshold is defined as in (FAR) 48 CFR 2.101, except
when (HSAR) 48 CFR 3013.7004 applies.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25767, May 2, 2006; 71 FR 48801, Aug. 22,
2006; 72 FR 1297, Jan. 11, 2007]
Subpart 3002.2—Abbreviations
3002.270 Abbreviations.
CBCA Civilian Board of Contract Appeals
CFO Chief Financial Officer
CIO Chief Information Officer
COCO Chief of the Contracting Office
COR Contracting Officer’s Representative
COTR Contracting Officer’s Technical
Representative
CPO Chief Procurement Officer
D&F Determination and Findings
FOIA Freedom of Information Act
HCA Head of Contracting Activity
J&A Justification and Approval for
Other than Full and Open Competition
KO Contracting Officer
MD Management Directive
OCPO Office of the Chief Procurement
Officer
OIG Office of the Inspector General
OSDBU Office of Small and Disadvantaged Business Utilization
PCR SBA’s Procurement Center Representative
RFP Request for Proposal
SBA Small Business Administration
SBS Small Business Specialist
SPE Senior Procurement Executive
[72 FR 1297, Jan. 11, 2007]
PART 3003—IMPROPER BUSINESS
PRACTICES
AND
PERSONAL
CONFLICTS OF INTEREST
Subpart 3003.1—Safeguards
Sec.
3003.101 Standards of conduct.
3003.101–3 Agency regulations.
Subpart 3003.2—Contractor Gratuities to
Government Personnel
3003.203 Reporting suspected violations of
the Gratuities clause.
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3003.101
3003.204
48 CFR Ch. 30 (10–1–07 Edition)
Treatment of violations.
(3) The details of the violation (e.g.,
the gratuity offered or intended) to obtain a contract or favorable treatment
under a contract.
(4) The person reporting the violation
and witnesses (if any) shall be requested to sign and date the information certifying that the information
furnished is true and correct.
(b) The contracting officer shall submit the report to the COCO (unless the
alleged violation was directly reported
to the COCO) and the Head of the Contracting Activity (HCA) for further action. The COCO and HCA will determine, with the advice of the Component legal counsel, whether the case
warrants submission to the OIG, or
other investigatory organization.
Subpart 3003.3—Reports Of Suspected
Antitrust Violations
3003.301
General.
Subpart 3003.4—Contingent Fees
3003.405 Misrepresentations or violations of
the Covenant Against Contingent Fees.
Subpart 3003.5—Other Improper Business
Practices
3003.502 Subcontractor kickbacks.
3003.502–2 Subcontractor kickbacks.
Subpart 3003.9—Whistleblower Protections
for Contractor Employees
3003.901
Definitions.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25768, May 2, 2006; 71 FR 48801, Aug. 22,
2006]
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3003.1—Safeguards
3003.101
3003.204
Standards of conduct.
3003.101–3 Agency regulations.
Government-wide and Department of
Homeland Security regulations governing the conduct and responsibilities
of employees are contained in 5 CFR
part 2635, and MD 0480.1, Ethics/Standards of Conduct, or any replacement
Management Directive.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25768, May 2, 2006]
Subpart 3003.2—Contractor Gratuities to Government Personnel
yshivers on PROD1PC62 with CFR
Treatment of violations.
(a) The HCA is the individual to determine whether a Gratuities clause
violation has occurred. If the HCA has
been personally and substantially involved in the specific procurement, the
advice of Government legal counsel
should be sought to determine whether
an alternate decision maker should be
designated.
(b) The COCO shall ensure that the
hearing procedures required by (FAR)
48 CFR 3.204(b) are afforded to the contractor. Government legal counsel
shall be consulted regarding the appropriateness of the hearing procedures
that are established.
(c) If the HCA determines that the alleged gratuities violation occurred during the ‘‘conduct of an agency procurement’’ the COCO shall consult with
Government legal counsel regarding
appropriate action.
3003.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations shall be reported to the contracting officer responsible for the acquisition (or the
COCO if the contracting officer is suspected of the violation). The contracting officer (or the COCO) shall obtain from the person reporting the violation, and any witnesses to the violation, the following information:
(1) The date, time, and place of the
suspected violation;
(2) The name and title (if known) of
the individual(s) involved in the violation; and
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25768, May 2, 2006]
Subpart 3003.3—Reports Of
Suspected Antitrust Violations
3003.301
General.
(b) The procedures at (HSAR) 48 CFR
3003.203 shall be followed for suspected
antitrust violations, except reports of
suspected antitrust violations shall be
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Homeland Security Department
3004.470–2
Subpart 3004.8—Government Contract
Files
coordinated with legal counsel for referral to the Department of Justice, if
deemed appropriate.
3004.804 Closeout of contract files.
3004.804–1 Closeout by the office administering the contract.
3004.804–5 Procedures for closing out contract files.
3004.804–570 Supporting closeout documents.
Subpart 3003.4—Contingent Fees
3003.405 Misrepresentations or violations of the Covenant Against Contingent Fees.
(a) The procedures at (HSAR) 48 CFR
3003.203 shall be followed for misrepresentation or violations of the covenant
against contingent fees.
(b)(4) The procedures at (HSAR) 48
CFR 3003.203 shall be followed for misrepresentation or violations of the covenant against contingent fees, except
reports of misrepresentation or violations of the covenant against contingent fees shall be coordinated with
legal counsel for referral to the Department of Justice, if deemed appropriate.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3004.1—Contract
Execution
3004.103
Subpart 3003.5—Other Improper
Business Practices
3003.502
Subpart
3004.4—Safeguarding
Classified and Sensitive Information Within Industry
Subcontractor kickbacks.
3003.502–2 Subcontractor kickbacks.
(g) The DHS OIG shall receive the
prime contractor or subcontractors
written report.
SOURCE: 71 FR 25768, May 2, 2006, unless
otherwise noted.
3004.470 Security requirements for access to unclassified facilities, Information Technology resources, and
sensitive information.
Subpart
3003.9—Whistleblower
Protections for Contractor Employees
3004.470–1
PART 3004—ADMINISTRATIVE
MATTERS
3004.470–2
Policy.
(a) DHS’s policies and procedures on
contractor personnel security requirements are set forth in various management directives (MDs). MD 11042.1,
Safeguarding Sensitive But Unclassified (For Official Use only) Information
describes how contractors must handle
sensitive but unclassified information.
MD 4300.1, entitled Information Technology Systems Security, and the DHS
Sensitive Systems Handbook, prescribe
the policies and procedures on security
for Information Technology resources.
Compliance with these policies and
Subpart 3004.1—Contract Execution
Contract clause.
Subpart 3004.4—Safeguarding Classified
and Sensitive Information Within Industry
yshivers on PROD1PC62 with CFR
Scope.
This section implements DHS’s policies for assuring the security of unclassified facilities, Information Technology (IT) resources, and sensitive information during the acquisition process and contract performance.
3003.901 Definitions.
Authorized official of an agency means
the Department of Homeland Security’s CPO.
Sec.
3004.103
Contract clause.
Insert the clause at (FAR) 48 CFR
52.204–1, Approval of Contract, in each
solicitation where approval to award
the resulting contract is required
above the contracting officer level.
3004.470 Security requirements for access to
unclassified facilities, Information Technology resources, and sensitive information.
3004.470–1 Scope.
3004.470–2 Policy.
3004.470–3 Contract clauses.
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3004.470–3
48 CFR Ch. 30 (10–1–07 Edition)
procedures, any replacement publications, or any other current or future
DHS policies and procedures covering
contractors specifically is required in
all contracts that require access to facilities, IT resources or sensitive information.
(b) The contractor must not use or
redistribute any DHS information
processed, stored, or transmitted by
the contractor except as specified in
the contract.
3004.470–3
Subpart 3004.8—Government
Contract Files
3004.804
3004.804–1 Closeout by the office administering the contract.
(b) The quick closeout procedures
under (FAR) 48 CFR 42.708 may be used
for the settlement of indirect costs
under contracts when the estimated
amount (excluding any fixed fee) of the
contract is $3 million or less if determined appropriate by the contracting
officer.
Contract clauses.
(a) Contracting officers shall insert a
clause substantially the same as the
clause at (HSAR) 48 CFR 3052.204–70,
Security Requirements for Unclassified
Information Technology Resources, in
solicitations and contracts that require
submission of an IT Security Plan.
(b) Contracting officers shall insert
the basic clause at (HSAR) 48 CFR
3052.204–71, Contractor Employee Access, in solicitations and contracts
when contractor employees require recurring access to Government facilities
or access to sensitive information. Contracting Officers shall insert the basic
clause with its Alternate I for acquisitions requiring contractor access to IT
resources. For acquisitions in which
the contractor will not have access to
IT resources, but the Department has
determined contractor employee access
to sensitive information or Government facilities must be limited to U.S.
citizens and lawful permanent residents, the contracting officer shall insert the clause with its Alternate II.
Neither the basic clause nor its alternates shall be used unless contractor
employees will require recurring access
to Government facilities or access to
sensitive information. Neither the
basic clause nor its alternates should
ordinarily be used in contracts with
educational institutions.
yshivers on PROD1PC62 with CFR
Closeout of contract files.
3004.804–5 Procedures for closing out
contract files.
3004.804–570
uments.
Supporting closeout doc-
(a) When applicable and prior to contract closure, the contracting officer
shall obtain the listed DHS and Department of Defense (DOD) forms from the
contractor for closeout.
(1) DHS Form 0700–03, Contractor’s
Release (e.g., see (FAR) 48 CFR 52.216–
7);
(2) DHS Form 0700–02, Contractor’s
Assignment of Refunds, Rebates, Credits and Other Amounts (e.g., see (FAR)
48 CFR 52.216–7);
(3) DHS Form 0700–01, Cumulative
Claim and Reconciliation Statement
(e.g., see (FAR) 48 CFR 4.804–5(a)(13);
and
(4) DD Form 882, Report of Inventions
and Subcontracts (e.g., see (FAR) 48
CFR 52.227–14).
(b) The forms listed in this section
(see (HSAR) 48 CFR part 3053) are used
primarily for the closeout of cost-reimbursement, time-and-materials, and
labor-hour contracts. The forms may
also be used for closeout of other contract types to protect the Government’s interest.
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SUBCHAPTER B—ACQUISITION PLANNING
Subpart 3006.3—Other Than Full and Open
Competition
PART 3005—PUBLICIZING
CONTRACT ACTIONS
3006.302 Circumstances permitting
than full and open competition.
3006.302–7 Public interest.
Subpart 3005.4—Release of Information
Sec.
3005.402
General public.
Subpart 3006.5—Competition Advocates
Subpart 3005.90—Publicizing Contract
Actions for Personal Services Contracting
3005.9000
3006.501
Requirement.
Subpart 3006.90—Competition Requirements for Personal Services Contracting
Applicability (USCG).
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
3006.9000
Applicability (USCG).
AUTHORITY: 41 U.S.C. 418b (a) and (b).
Subpart 3005.4—Release of
Information
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
3005.402 General public.
Requests for other specific records
information shall be processed according to the DHS Freedom of Information
Act rules and regulations (HSAR) 48
CFR 3024.203.
Subpart 3006.1—Full and Open
Competition
3006.101
Policy.
3006.101–70
Subpart 3005.90—Publicizing Contract Actions for Personal
Services Contracting.
Definitions.
As used in this part:
Agency competition advocate means an
individual designated by the Chief Procurement Officer (CPO) to perform, at
a minimum, the functions under (FAR)
48 CFR 6.502(b) and is synonymous with
‘‘Departmental Competition Advocate’’
and ‘‘Senior Competition Advocate
(SCA).’’
Competition advocate for the procuring
activity means the individual who has
been designated by the Component to
approve Justifications and Approvals
(J & A) for other than full and open
competition as permitted by the (FAR)
48 CFR 6.304 and to perform the duties
and responsibilities assigned under
(FAR) 48 CFR 6.502. This term is synonymous with ‘‘procuring activity
competition advocate.’’
3005.9000 Applicability (USCG).
Contracts awarded by the U.S. Coast
Guard using the procedures in (HSAR)
48 CFR 3037.104–91 are expressly authorized for the Coast Guard under 10
U.S.C. 1091, as amended by section
1512(d) of the Homeland Security Act, 6
U.S.C. 552(d), and are exempt from
(FAR) 48 CFR part 5.
[71 FR 25768, May 2, 2006]
PART 3006—COMPETITION
REQUIREMENTS
Subpart 3006.1—Full and Open
Competition
[71 FR 25769, May 2, 2006, as amended at 71
FR 48801, Aug. 22, 2006]
Sec.
3006.101 Policy.
3006.101–70 Definitions.
yshivers on PROD1PC62 with CFR
Subpart 3006.2—Full and Open
Competition After Exclusion of Sources
3006.202 Establishing or maintaining alternative sources.
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3006.202
48 CFR Ch. 30 (10–1–07 Edition)
Subpart 3006.2—Full and Open
Competition After Exclusion of
Sources
PART 3009—CONTRACTOR
QUALIFICATIONS
Subpart 3009.1—Responsible Prospective
Contractors
3006.202 Establishing or maintaining
alternative sources.
(b)(1) The HCA is delegated authority
to approve a D&F in support of a contract action award under the authority
of (FAR) 48 CFR 6.202(a). Submit D&F
in the format per (HSAR) 48 CFR
3001.704.
Sec.
3009.104–70 Prohibition on contracts with
corporate expatriates.
3009.104–71 General.
3009.104–72 Definitions.
3009.104–73 Special rules.
3009.104–74 Waivers.
3009.104–75 Clause.
Subpart 3006.3—Other Than Full
and Open Competition
Subpart 3009.4—Debarment, Suspension,
and Ineligibility
3006.302 Circumstances
permitting
other than full and open competition.
3006.302–7
3009.470 Reserve Officer Training Corps and
military recruiting on campus.
3009.470–1 Definition.
3009.470–2 Policy.
3009.470–3 Procedures.
3009.470–4 Contract clause.
Public interest.
(c)(1)(ii) Requests shall be prepared
in writing by the contracting officer,
using the format found in (HSAR) 48
CFR 3001.704, and submitted through
the HCA to the CPO for review and
transmittal to the Secretary for approval.
Subpart 3009.5—Organizational and
Consultant Conflicts of Interest
3009.507 Solicitation provision and contract
clause.
3009.507–1 Solicitation provision.
3009.507–2 Contract clause.
Subpart 3006.5—Competition
Advocates
3006.501
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Requirement.
Subpart 3009.1—Responsible
Prospective Contractors
The DHS Senior Competition Advocate (SCA) is located in the Office of
the Chief Procurement Officer (OCPO).
3009.104–70 Prohibition on contracts
with corporate expatriates.
Subpart 3006.90—Competition Requirements For Personal Services Contracting
3006.9000
3009.104–71
Except as provided in (HSAR) 48 CFR
3009.104–74, DHS may not enter into
any contract with a foreign incorporated entity which is treated as an
inverted domestic corporation under
subsection (b) of section 835 of the
Homeland Security Act, 6 U.S.C. 395(b),
or any subsidiary of such an entity.
Applicability (USCG).
Contracts awarded by the U.S. Coast
Guard using the procedures in (HSAR)
48 CFR 3037.104–91 are expressly authorized under Section 1091 of Title 10
U.S.C. as amended, for the Coast Guard
and are exempt from the competition
requirements of (FAR) 48 CFR part 6.
[71 FR 25769, May 2, 2006]
3009.104–72
PART 3007—ACQUISITION
PLANNING [RESERVED]
yshivers on PROD1PC62 with CFR
General.
Definitions.
As used in this subpart—
Expanded Affiliated Group means an
affiliated group as defined in section
1504(a) of the Internal Revenue Code of
1986 (without regard to section 1504(b)
of such Code), except that section 1504
PART 3008—REQUIRED SOURCES
OF SUPPLIES AND SERVICES [RESERVED]
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Homeland Security Department
3009.104–73
porated entity as an inverted domestic
corporation these shall not be taken
into account in determining ownership:
(1) Stock held by members of the expanded affiliated group which includes
the foreign incorporated entity; or
(2) Stock of such entity which is sold
in a public offering related to the acquisition described in subsection (b)(1)
of section 835 of the Homeland Security
Act, 6 U.S.C. 395(b)(1).
(b) Plan deemed in certain cases. If a
foreign incorporated entity acquires directly or indirectly substantially all of
the properties of a domestic corporation or partnership during the 4-year
period beginning on the date which is 2
years before the ownership requirements of section 835(b)(2) of the Act are
met, such actions shall be treated as
pursuant to a plan.
(c) Certain transfers disregarded. The
transfer of properties or liabilities (including by contribution or distribution) shall be disregarded if such transfers are part of a plan a principal purpose of which is to avoid the purposes
of this section.
(d) Special rule for related partnerships.
For purposes of applying subsection (b)
to the acquisition of a domestic partnership, except as provided in regulations, all domestic partnerships which
are under common control (within the
meaning of section 482 of the Internal
Revenue Code of 1986) shall be treated
as a partnership.
(e) Treatment of certain rights. (1) Certain rights shall be treated as stocks to
the extent necessary to reflect the
present value of all equitable interests
incident to the transaction, as follows:
(i) Warrants;
(ii) Options;
(iii) Contracts to acquire stock;
(iv) Convertible debt instruments;
(v) Others similar interests.
(2) Rights labeled as stocks shall not
be treated as stocks whenever it is
deemed appropriate to do so to reflect
the present value of the transaction or
to disregard transactions whose recognition would defeat the purpose of
section 835 of the Act.
of such Code shall be applied by substituting ‘more than 50 percent’ for ‘at
least 80 percent’ each place it appears.
Foreign Incorporated Entity means any
entity which is, or but for section
835(b) of the Homeland Security Act, 6
U.S.C. 395(b), would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.
Inverted Domestic Corporation. A foreign incorporated entity shall be treated as an inverted domestic corporation
if, pursuant to a plan (or a series of related transactions)—
(1) The entity completes the direct or
indirect acquisition of substantially all
of the properties held directly or indirectly by a domestic corporation or
substantially all of the properties constituting a trade or business of a domestic partnership;
(2) After the acquisition at least 80
percent of the stock (by vote or value)
of the entity is held—
(i) In the case of an acquisition with
respect to a domestic corporation, by
former shareholders of the domestic
corporation by reason of holding stock
in the domestic corporation; or
(ii) In the case of an acquisition with
respect to a domestic partnership, by
former partners of the domestic partnership by reason of holding a capital
or profits interest in the domestic partnership; and
(3) The expanded affiliated group
which after the acquisition includes
the entity does not have substantial
business activities in the foreign country in which or under the law of which
the entity is created or organized when
compared to the total business activities of such expanded affiliated group.
Person, domestic, and foreign have the
meanings given such terms by paragraphs (1), (4), and (5) of section 7701(a)
of the Internal Revenue Code of 1986,
respectively.
yshivers on PROD1PC62 with CFR
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25769, May 2, 2006]
3009.104–73 Special rules.
The following special rules shall
apply when determining whether a foreign incorporated entity should be
treated as an inverted domestic corporation.
(a) Certain stock disregarded. For the
purpose of treating a foreign incor-
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25769, May 2, 2006]
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3009.104–74
3009.104–74
48 CFR Ch. 30 (10–1–07 Edition)
puses, for purposes of military recruiting; or
(4) Military recruiters from accessing
certain information pertaining to students enrolled at that institution.
(b) The prohibition in paragraph (a)
of this subsection does not apply to an
institution of higher education if the
Secretary of Defense determines that—
(1) The institution (and each subelement of that institution) has ceased
the policy or practice described in
paragraph (a) of this subsection; or
(2) The institution involved has a
long-standing policy of pacifism based
on historical religious affiliation.
Waivers.
(a) The Secretary shall waive the
provisions of (HSAR) 48 CFR 3009.104–71
with respect to any specific contract if
the Secretary determines that the
waiver is required in the interest of national security.
(b) Contractors shall submit waiver
requests to the CPO. A copy of the
waiver request or the approved waiver
shall be attached with the bid or proposal.
[71 FR 25769, May 2, 2006]
3009.104–75
Clause.
Insert the provision (HSAR) 48 CFR
3052.209–70, Prohibition on Contracts
with Corporate Expatriates, in all solicitations and contracts.
3009.470–3 Procedures.
Whenever the Secretary of Defense
determines that an institution of higher education (including any subelement
of such institution) is ineligible and
the provisions of 10 U.S.C. 983 apply:
(a) The Secretary of Defense will list
the institution on the List of Parties
Excluded from Federal Procurement
and Nonprocurement Programs published by the General Services Administration (also see (FAR) 48 CFR 9.404
and 32 CFR part 216); and
(b) The Department of Homeland Security—
(1) Shall not solicit offers from,
award contracts to, or consent to subcontracts with the institution;
(2) Shall make no further payments
under existing contracts with the institution; and
(3) Shall terminate existing contracts
with the institution.
Subpart 3009.4—Debarment,
Suspension, and Ineligibility
3009.470 Reserve
Officer
Training
Corps and military recruiting on
campus.
3009.470–1
Definition.
Institution of higher education as used
in this section, means an institution
that meets the requirements of 20
U.S.C. 1001 and includes all subelements of such an institution.
yshivers on PROD1PC62 with CFR
3009.470–2
Policy.
(a) Except as provided in paragraph
(b) of this subsection, 10 U.S.C. 983 prohibits the Department of Homeland Security from providing funds by contract or grant to an institution of higher education if the Secretary of Defense determines that the institution
has a policy or practice that prohibits
or in effect prevents—
(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps
(ROTC) at that institution;
(2) A student at that institution from
enrolling in a unit of the Senior ROTC
at another institution of higher education;
(3) The Secretary of a military department or the Secretary of Homeland
Security from gaining entry to campuses, or access to students on cam-
3009.470–4 Contract clause.
Insert the clause at (HSAR) 48 CFR
3052.209–71, Reserve Officer Training
Corps and Military Recruiting on Campus, in all solicitations and contracts
with institutions of higher education.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25769, May 2, 2006]
Subpart
3009.5—Organizational
and Consultant Conflicts of Interest
3009.507 Solicitation provision and
contract clause.
The contracting officer may insert
the provision at (HSAR) 48 CFR
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Homeland Security Department
3011.602
Subpart 3011.6—Priorities and Allocations
3052.209–72, ‘‘Disclosure of Conflicts of
Interest’’ in all solicitations for negotiated acquisitions, and when simplified acquisitions procedures in
(FAR) 48 CFR Part 13, are not used.
The contracting officer shall ensure
the conditions enumerated in (FAR) 48
CFR 9.507–2 warrant inclusion.
3009.507–1
3011.602
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3011.1—Selecting and
Developing
Requirements
Documents
Solicitation provision.
The contracting officer shall insert a
provision substantially the same as
(HSAR) 3052.209–72, Organizational Conflict of Interest, in solicitations and
contracts where a potential organizational conflict of interest exists and
mitigation may be possible. The contracting officer shall ensure the conditions enumerated in (FAR) 48 CFR subpart 9.5 warrant inclusion. The contracting officer shall include the information required by (FAR) 48 CFR 9.507–
1 and (HSAR) 3052.209–72(a).
3011.103
Subpart 3011.2—Using and Maintaining Requirements Documents
3011.204–70 Solicitation
and contract clauses.
Contract clause.
Subpart 3011.5—Liquidated
Damages
3011.501
[71 FR 25769, May 2, 2006]
PART 3011—DESCRIBING AGENCY
NEEDS
Subpart 3011.6—Priorities and
Allocations
Subpart 3011.1—Selecting and Developing
Requirements Documents
3011.602
General.
(c) The following DHS Components
may assign priority ratings on contracts and orders placed with contractors to acquire products, materials,
and services under the Defense Priorities and Allocations System (DPAS)
regulations (15 CFR part 700):
(1) The U.S. Coast Guard in support
of certified national defense related
programs; and
Market acceptance.
Subpart 3011.2—Using and Maintaining
Requirements
3011.204–70 Solicitation provisions and contract clauses.
Subpart 3011.5—Liquidated Damages
yshivers on PROD1PC62 with CFR
Policy.
(d) The HCA may reduce or waive the
amount of liquidated damages assessed
under a contract, if the Commissioner,
Financial Management Service, or designee approves.
PART 3010—MARKET RESEARCH
[RESERVED]
3011.501
provisions
The contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.211–
70, Index for Specifications, when an
index or table of contents may be furnished with the specification.
The contracting officer shall insert a
clause substantially the same as the
clause at (HSAR) 48 CFR 3052.209–73,
Limitation of Future Contracting, in
solicitations and contracts when a potential organizational conflict of interest exists and mitigation is not feasible.
Sec.
3011.103
Market acceptance.
(a) Contracting officers may act on
behalf of the head of the agency in this
subpart only. Contracting officers may,
under appropriate circumstances, require offerors to make the required
demonstrations.
[71 FR 25769, May 2, 2006]
3009.507–2
General.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
Policy.
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3011.602
48 CFR Ch. 30 (10–1–07 Edition)
(2) The Federal Emergency Management Agency in support of emergency
preparedness activities.
PART 3012—ACQUISITION OF
COMMERCIAL ITEMS [RESERVED]
yshivers on PROD1PC62 with CFR
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
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SUBCHAPTER C—CONTRACT METHODS AND CONTRACT
TYPES
Committee on Governmental Affairs of
the Senate—
(1) Notification of such determination; and
(2) The justification for such determination.
(b) This report shall be submitted no
later than seven days after the date of
any determination. Reporting requirements and procedures are discussed in
HSAM 3013.
PART 3013—SIMPLIFIED
ACQUSITION PROCEDURES
Subpart 3013.70—Special Streamlined
Acquisition Authority
Sec.
3013.7000 General.
3013.7001 Delegations.
3013.7002 Reporting requirements.
3013.7003 Micro-purchase authority.
3013.7004 Simplified acquisition authority.
3013.7005 Test program for certain commercial items.
3013.7003
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3013.70—Special
Streamlined Acquisition Authority
3013.7000 General.
(a) The Secretary may use the special
streamlined acquisition authorities set
forth in the Homeland Security Act,
section 833, 6 U.S.C. 393, with respect to
any procurement that takes place during the period ending September 30,
2007, if the Secretary determines in
writing that the mission of the Department (as described in the Homeland Security Act, section 101, 6 U.S.C. 111)
would be seriously impaired without
the use of such authorities.
(b) The Secretary may deem any
item or service to be a commercial
item for the purpose of federal procurement laws for procurements described
in (HSAR) 48 CFR 3013.7005.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25769, May 2, 2006]
3013.7001 Delegations.
The Secretary may delegate this authority to an officer of the Department
who is appointed by the President with
the advice and consent of the Senate.
Delegations of this authority are discussed in HSAM 3013.
yshivers on PROD1PC62 with CFR
Micro-purchase authority.
(a) When the streamlined acquisition
authority is exercised, the micro-purchase threshold is raised to $7,500.
(b) The authority in this section may
be exercised only by individuals designated by the Secretary. The number
of employees shall be—
(1) Fewer than the number of employees of the Department that are authorized to make purchases without obtaining competitive quotations.
(2) Sufficient to ensure the geographic dispersal of the availability of
the use of the procurement authority
under such paragraph at locations reasonably considered to be potential terrorist targets; and
(3) Sufficiently limited to allow for
careful monitoring of employees designated under each paragraph.
(c) Procurements made under this authority shall be subject to review by a
designated supervisor on not less than
a monthly basis. The supervisor responsible for the review shall be responsible for no more than seven employees making procurements under
this authority.
3013.7004 Simplified
thority.
acquisition
When the streamlined acquisition authority is exercised, the simplified acquisition threshold shall be:
(a) $200,000 in the case of a contract
to be awarded and performed, or purchase to be made, within the United
States; and
3013.7002 Reporting requirements.
(a) The Secretary shall submit to the
Committee on Government Reform of
the House of Representatives and the
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3013.7005
48 CFR Ch. 30 (10–1–07 Edition)
(b) $300,000 in the case of a contract
to be awarded and performed, or purchase to be made, outside of the United
States.
posals or information. The contracting
officer shall document the file in such
cases.
Subpart 3015.6—Unsolicited
Proposals
3013.7005 Test program for certain
commercial items.
When the streamlined authority is
exercised, the limitation provided in
(FAR) 48 CFR subpart 13.5 is increased
to $7,500,000.
3015.602
[71 FR 25769, May 2, 2006]
[71 FR 25770, May 2, 2006]
PART 3014—SEALED BIDDING
[RESERVED]
PART 3015—CONTRACTING BY
NEGOTIATION
3015.603
[Reserved]
3015.604
Agency points of contact.
(a) The DHS does not have a central
clearinghouse for distributing information or assistance regarding unsolicited
proposals. Each HCA is responsible for
disseminating the information required
at (FAR) 48 CFR 15.604(a). General information concerning DHS’s scope of
responsibilities and functions is available at http://www.dhs.gov/dhspublic/.
Subpart 3015.2—Solicitation and Receipt of
Proposals and Information
Sec.
3015.204–3 Contract clauses.
3015.207–70 Handling proposals and information.
Subpart 3015.6—Unsolicited Proposals
3015.606
3015.602 Policy.
3015.603 [Reserved]
3015.604 Agency points of contact.
3015.606 Agency procedures.
3015.606–1 Receipt and initial review.
3015.606–2 Evaluation.
Agency procedures.
(a) The agency authority to establish
procedures for receiving, reviewing and
evaluating, and timely disposing of unsolicited proposals, consistent with the
requirements of (FAR) 48 CFR 15.6 and
this subpart, is delegated to each HCA.
(b) The agency authority to establish
points of contact (see (FAR) 48 CFR
15.604) to coordinate the receipt and
handling of unsolicited proposals is
delegated to each HCA. Contracting offices are designated as the receiving
point for unsolicited proposals. Persons
within DHS (e.g., technical personnel)
who receive proposals shall forward
them to their cognizant contracting office.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3015.2—Solicitation and
Receipt of Proposals and Information
3015.204–3 Contract clauses.
The contracting officer shall insert
clause (HSAR) 48 CFR 3052.215–70, Key
Personnel or Facilities, in solicitations
and contracts when the selection for
award is substantially based on the
offeror’s possession of special capabilities regarding personnel or facilities.
yshivers on PROD1PC62 with CFR
Policy.
The Department of Homeland Security (DHS) encourages new and innovative proposals and ideas that will sustain or enhance the DHS mission.
3015.606–1
Receipt and initial review.
(a) The agency contact point shall
make an initial review determination
within seven calendar days after receiving a proposal.
(b) If the proposal meets the requirements at (FAR) 48 CFR 15.606–1(a), the
agency contact point shall acknowledge receipt within three calendar days
after making the initial review determination and advise the offeror of the
3015.207–70 Handling proposals and
information.
(b) Proposals and information may be
released outside the Government for
evaluation and similar purposes if
qualified personnel are not available to
thoroughly evaluate or analyze pro-
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Homeland Security Department
3016.505
general timeframe for completing the
evaluation.
(c) If the proposal does not meet the
requirements of (FAR) 48 CFR 15.606–
1(a), the agency contact point shall return the proposal within three calendar
days after making the determination.
The offeror shall be informed, in writing, of the reasons for returning the
proposal.
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
3015.606–2 Evaluation.
(a)
Comprehensive
evaluations
should be completed within sixty calendar days after making the initial review determination. If additional time
is needed, then the agency contact
point shall advise the offeror accordingly and provide a new evaluation
completion date. The evaluating office
shall neither reproduce nor disseminate the proposal to other offices without the consent of the contracting office from which the proposal was received for evaluation. If the evaluating
office requires additional information
from the offeror, the evaluator shall
convey this request to the responsible
contracting office. The evaluator shall
not directly contact the proposal originator.
(b) If the evaluators recommend accepting the proposal, the responsible
contracting officer shall ensure compliance with all of the requirements of
(FAR) 48 CFR 15.607.
(d)(2) Any clause using this method
shall be prepared and approved by the
contracting officer.
Subpart 3016.2—Fixed-Price
Contracts
3016.203 Fixed price contracts with
economic price adjustments.
3016.203–4
3016.203–470
Subpart 3016.4—Incentive
Contracts
3016.406
eco-
Subpart 3016.4—Incentive Contracts
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25770, May 2, 2006]
Contract clauses.
Subpart 3016.5—Indefinite-Delivery
Contracts
3016.505
Subpart 3016.5—IndefiniteDelivery Contracts
Ordering.
3016.505
Subpart 3016.6—Time-and-Materials,
Labor-Hour, and Letter Contracts
Ordering.
(b)(5) The Component Competition
Advocate is designated as the Component Task and Delivery Order Ombudsman, unless otherwise provided in
Component procedures.
3016.603 Letter contracts.
3016.603–4 Contract clauses.
yshivers on PROD1PC62 with CFR
Contract clauses.
(e)(1)(i) The contracting officer shall
insert a clause substantially the same
as (HSAR) 48 CFR 3052.216–71, Determination of Award Fee, in solicitations
and contracts that include an award
fee.
(ii) The contracting officer shall insert a clause substantially the same as
(HSAR) 48 CFR 3052.216–72, Performance Evaluation Plan, in all solicitations and contracts that include an
award fee.
(iii) The contracting officer shall insert a clause substantially the same as
(HSAR) 48 CFR 3052.216–73, Distribution
of Award Fee, in all solicitations and
contracts that include an award fee.
Subpart 3016.2—Fixed-Price Contracts
3016.406
Solicitation provision.
The contracting officer shall insert a
provision substantially the same as
(HSAR) 48 CFR 3052.216–70, Evaluation
of Offers Subject to an Economic Price
Adjustment Clause, in solicitations
containing an economic price adjustment clause.
PART 3016—TYPES OF CONTRACTS
Sec.
3016.203 Fixed-price contracts with
nomic price adjustment.
3016.203–4 Contract clauses.
3016.203–470 Solicitation provision.
Contract clauses.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
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3016.603
48 CFR Ch. 30 (10–1–07 Edition)
(i) If any corrective action is needed
after reviewing complaints from contractors on task and delivery order
contracts, the Component Ombudsman
shall provide a written determination
of such action to the contracting officer.
(ii) Issues that cannot be resolved
within the Component shall be forwarded to the DHS Task and Delivery
Order Ombudsman, who is also the
DHS Senior Competition Advocate, for
review and resolution.
3017.204
3017.204–90 Detention
Services (ICE).
Subpart 3017.4—Leader Company
Contracting
3017.402
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
Subpart 3017.90—Fixed Price Contracts for Vessel Repair, Alteration or Conversion
Contract clauses.
The contracting officer shall insert a
clause substantially the same as
(HSAR) 48 CFR 3052.216–74, Settlement
of Letter Contract, in all definitized
letter contracts.
3017.9000
Subpart 3017.2—Options
Sec.
3017.202 Use of options.
3017.204 Contracts.
3017.204–90 Detention Facilities and Services (ICE).
Subpart 3017.4—Leader Company
Contracting
Limitations.
Subpart 3017.90—Fixed Price Contracts for
Vessel Repair, Alteration or Conversion
Clauses (USCG).
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3017.2—Options.
yshivers on PROD1PC62 with CFR
Clauses (USCG).
For the U.S. Coast Guard, the following clauses are to be used in specific
solicitations and contracts:
(a) The clauses in (HSAR) 48 CFR
3052.217–90 through (HSAR) 48 CFR
3052.217–93 and (HSAR) 48 CFR 3052.217–
95 through (HSAR) 48 CFR 3052.217–99
shall be included and clause (HSAR) 48
CFR 3052.217–94 may be included in
sealed bid fixed-price solicitations and
contracts for vessel repair, alteration,
or conversion which are to be performed within the United States, its
possessions, or Puerto Rico. The contracting officer may, in whole or in
part (such as after incidents), increase
the dollar amounts in the clause at
(HSAR) 48 CFR 3052.217–95(b)(6) and
(c)(1) consistent with contract size, inflation, and other circumstances.
(b) Unless inappropriate, the clauses
in (HSAR) 48 CFR 3052.217–90 through
(HSAR) 48 CFR 3052.217–93 and (HSAR)
48 CFR 3052.217–95 through (HSAR) 48
CFR 3052.217–99 should be included and
(HSAR) 48 CFR 3052.217–94 may be included in negotiated solicitations and
contracts to be performed outside the
United States. The contracting officer
may, in whole or in part (such as after
incidents), increase the dollar amounts
PART 3017—SPECIAL
CONTRACTING METHODS
3017.202
Limitations.
(a)(4) Submit requests per (HSAR) 48
CFR 3001.7000.
Letter contracts.
3016.603–4
3017.9000
Use of options.
(a) Contracting officers shall not use
unpriced options.
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and
[71 FR 25770, May 2, 2006]
Subpart 3016.6—Time-and-Materials, Labor-Hour, and Letter
Contracts
3017.402
Facilities
The ICE Head of the Contracting Activity (HCA), without delegation, may
enter into contracts of up to fifteen
years’ duration for detention or incarceration space or facilities, including
related services.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25770, May 2, 2006; 71 FR 48801, Aug. 22,
2006]
3016.603
Contracts.
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Homeland Security Department
3017.9000
yshivers on PROD1PC62 with CFR
in the clause at (HSAR) 48 CFR
3052.217–95(b)(6) and (c)(1) consistent
with contract size, inflation, and other
circumstances.
(c) The clause at (HSAR) 48 CFR
3052.217–100, Guarantee, shall be used
where general guarantee provisions are
deemed desirable by the contracting officer.
(1) When inspection and acceptance
tests will afford full protection to the
Government in ascertaining conformance to specifications and the absence
of defects and deficiencies, no guarantee clause for that purpose shall be
included in the contract.
(2) The customary guarantee period,
to be inserted in the first sentence of
the clause at (HSAR) 48 CFR 3052.217–
100, Guarantee, is 60 days. However, in
certain instances, the contracting officer may desire to include a clause in a
contract for a guarantee period of more
than 60 days. In such instances:
(i) Where, after full inquiry, it has
been determined that such longer guarantee period will not involve increased
costs, a longer guarantee period may
be substituted by the contracting officer for the usual 60 days; or
(ii) Where the full inquiry discloses
that such longer guarantee period will
involve, or is reasonably expected to
involve, increased costs, such facts and
the reasons for the need for such longer
period shall be set forth in letter form
to the COCO, requesting approval for
use of guarantee period in excess of 60
days. Upon approval, the longer period
may be inserted by the contracting officer in the first sentence of the clause
at (HSAR) 48 CFR 3052.217–100, Guarantee.
PART 3018 [RESERVED]
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SUBCHAPTER D—SOCIOECONOMIC PROGRAMS
PART 3019—SMALL BUSINESS
PROGRAMS
Subpart 3019.7—The Small
Business Subcontracting Program
Subpart 3019.2—Policies
3019.705 Responsibilities for the contracting officer under the subcontracting program.
Sec.
3019.201
General policy.
3019.705–1 General
program.
Subpart 3019.7—The Small Business
Subcontracting Program
support
for
the
In any solicitation where subcontracting plans will be required for one
or more offerors, contracting officers
may include evaluation factors that
consider the quality of proposed subcontracting plans and past performance under previous subcontracting
plans. Contracting officers must ensure
that these factors do not penalize companies not required to submit subcontracting plans.
3019.705 Responsibilities of the contracting
officer under the subcontracting assistance program.
3019.705–1 General support for the program.
3019.708 Contract clauses.
3019.708–70 Solicitation provision and contract clauses.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
[71 FR 25770, May 2, 2006]
Subpart 3019.2—Policies
3019.201
3019.708
General policy.
Contract clauses.
3019.708–70 Solicitation provision and
contract clauses.
(d) DHS is committed to a unified
team approach involving senior management, small business specialists, acquisition personnel and program staff
to support both critical homeland security missions and meet public policy
objectives concerning small business
participation in departmental procurements. The Director, Office of Small
and Disadvantaged Business Utilization, is responsible for the implementation and execution of programs to assist small businesses, veteran owned
small businesses, service-disabled veteran owned small businesses, HUBZone
small businesses, small disadvantaged
businesses, and women-owned small
business concerns as required by the
Small Business Act.
(a) The contracting officer shall insert the clause at (HSAR) 48 CFR
3052.219–70, Small Business Subcontracting Plan Reporting, in solicitations and contracts containing the
clause at (FAR) 48 CFR 52.219–9.
(b) The contracting officer shall insert the clause at (HSAR) 48 CFR
3052.219–71, DHS Mentor-Prote´ge´ Program in all solicitations that anticipate the need for a subcontracting
plan.
(c) The contracting officer shall insert the provision at (HSAR) 48 CFR
3052.219–72, Evaluation of Prime Contractor Participation in the DHS Mentor-Prote´ge´ Program, in all solicitations containing (HSAR) 48 CFR
3052.219–71, DHS Mentor-Prote´ge´ Program and (FAR) 48 CFR 52.219–9, Small
Business Subcontracting Plan.
[71 FR 25770, May 2, 2006]
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25770, May 2, 2006]
yshivers on PROD1PC62 with CFR
PART 3020–3021 [RESERVED]
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Pt. 3022
48 CFR Ch. 30 (10–1–07 Edition)
ings, collect union dues, or make
speeches concerning union matters
while visiting a work site during working hours.
(b) Whenever a non-employee labor
union representative is denied entry to
a work site, the person denying entry
shall make a written report to the DHS
labor coordinator and Component labor
advisor, if any, within two working
days after the request for entry is denied. The report shall include the reason(s) for the denial, the name of the
representative denied entry, the union
affiliation and number, and the name
and title of the person that denied the
entry.
PART
3022—APPLICATION
OF
LABOR LAWS TO GOVERNMENT
ACQUISITIONS
Subpart 3022.1—Basic Labor Policies
Sec.
3022.101 Labor relations.
3022.101–70 Admittance of union representatives to DHS installations.
3022.101–71 Contract clauses.
Subpart 3022.4—Labor Standards for
Contracts Involving Construction
3022.406 Administration and enforcement.
3022.406–9 Withholding from or suspension
of contract payments.
Subpart 3022.90—Local Hire (USCG)
3022.9000
3022.9001
[71 FR 25770, May 2, 2006, as amended at 71
FR 48801, Aug. 22, 2006]
Policy (USCG).
Contract clause (USCG).
3022.101–71
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3022.1—Basic Labor
Policies
yshivers on PROD1PC62 with CFR
3022.101
Contract clauses.
(a) The contracting officer, may,
when applicable, insert the clause at
(HSAR) 48 CFR 3052.222–70, Strikes or
Picketing Affecting Timely Completion of the Contract Work, in solicitations and contracts.
(b) The contracting officer may,
when applicable, insert the clause at
(HSAR) 48 CFR 3052.222–71, Strikes or
Picketing Affecting Access to a DHS
Facility, in solicitations and contracts.
Labor relations.
3022.101–70 Admittance of union representatives to DHS installations.
(a) Admittance of union representatives to Transportation Security Administration or United States Secret
Service installations and work sites is
not governed by this rule, but by laws,
rules, regulations, Executive Orders
and policies applicable to those Components. It is the policy of DHS to admit
non-employee labor union representatives of contractor employees to DHS
installations to visit work sites and
transact labor union business with contractors, their employees, and union
stewards pursuant to existing union
collective
bargaining
agreements.
Their presence must not interfere with
the contractor’s work under a DHS
contract nor violate safety or security
regulations that may be applicable to
persons visiting the installation. However, if there have been incidents of
vandalism, illegal work stoppages, or
interference with work, the non-employee labor union representatives may
be subject to access limitations. Nonemployee labor union representatives
will not be permitted to conduct meet-
Subpart 3022.4—Labor Standards
for Contracts Involving Construction
3022.406 Administration and enforcement.
3022.406–9 Withholding from or suspension of contract payments.
(c) Disposition of contract payments
withheld or suspended.
(1) Forwarding wage underpayments
to the Comptroller General. The contracting officer shall ensure that a
completed DHS Form 0700–04, Employee Claim for Wage Restitution, is
obtained from each employee claiming
restitution under the contract. The
Comptroller General (Claims Division)
shall receive this form with a completed SF 1093, Schedule of Withholding Under the Davis-Bacon Act
and/or the Contract Work Hours and
Safety Standards Act, before payment
can be made to the employee.
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Homeland Security Department
3023.9000
Subpart 3022.90—Local Hire
(USCG)
3022.9000
Subpart 3023.3—Hazardous Material Identification and Material
Safety Data
Policy (USCG).
3023.303
As required by 14 U.S.C. 666, the U.S.
Coast Guard shall include a provision
for local hire in each contract for construction or services to be performed in
whole or in part in a State that has an
unemployment rate in excess of the national average rate of unemployment
as determined by the Secretary of
Labor.
3022.9001
Subpart 3023.5—Drug-Free
Workplace
Contract clause (USCG).
For the U.S. Coast Guard, the contracting officer shall insert the USCG
clause at (HSAR) 48 CFR 3052.222–90,
Local Hire (USCG), Local Hire Provision, in all solicitations and contracts
as stated in (HSAR) 48 CFR 3022.9000.
3023.501
[71 FR 25770, May 2, 2006, as amended at 71
FR 48801, Aug. 22, 2006]
PART 3023—ENVIRONMENT, CONSERVATION,
OCCUPATIONAL
SAFETY, AND DRUG-FREE WORKPLACE
3023.506 Suspension of payments, termination of contract, and debarment and suspension actions.
(e) Submit requests per (HSAR) 48
CFR 3001.7000.
Subpart 3023.3—Hazardous Material
Identification and Material Safety Data
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
Contract clause.
Subpart 3023.10—Federal Compliance With Right-to-Know Laws
and Pollution Requirements
Subpart 3023.5—Drug-Free Workplace
3023.501 Applicability.
3023.506 Suspension of payments, termination of contract, and debarment and
suspension actions.
3023.1002
Subpart 3023.90—Safety
Requirements for USCG Contracts
Applicability.
Subpart 3023.90—Safety Requirements for
USCG Contracts
3023.9000
3023.9000
Contract Clause (USCG).
Contract clause (USCG).
For the U.S. Coast Guard, where all
or part of a contract will be performed
on Government-owned or leased property, the contracting officer shall insert the clause at (HSAR) 48 CFR
3052.223–90, Accident and Fire Reporting.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
yshivers on PROD1PC62 with CFR
Applicability.
DHS MD 5110, Environmental Compliance, provides guidance and direction for compliance with environmental laws.
Subpart 3023.10—Federal Compliance with
Right-to-Know Laws and Pollution Prevention Requirements
3023.1002
Applicability.
(d) The head of any Component may
issue a determination under (FAR) 48
CFR 23.501(d) to exclude the Drug-Free
Workplace requirements of FAR subpart 23.5 in contracts supporting undercover law enforcement operations.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25770, May 2, 2006]
Sec.
3023.303
Contract clause.
The contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.223–
70, Removal or Disposal of Hazardous
Substances—Applicable Licenses and
Permits, in solicitations and contracts
involving the removal or disposal of
hazardous waste material.
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Pt. 3024
48 CFR Ch. 30 (10–1–07 Edition)
PART 3024—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
PART 3027—PATENTS, DATA, AND
COPYRIGHTS
Subpart 3027.2—Patents
Subpart 3024.1—Protection of Individual
Privacy
Sec.
3024.102–70
Sec.
3027.205 Adjustment of royalties.
3027.208 Use of patented technology under
the North American Free Trade Agreement.
General.
Subpart 3024.2—Freedom of Information
Act
3024.203
Subpart 3027.3—Patent Rights Under
Government Contracts
Policy.
3027.304–1 General.
3027.304–5 Appeals.
3027.305 Administration of Patent Rights
Clauses.
3027.305–4 Administration of Patent Rights
Clause.
3027.306 Licensing background patent rights
to third parties.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3024.1—Protection of
Individual Privacy
3024.102–70
Subpart 3027.4—Rights in Data and
Copyrights
General.
Procedures for implementing the Privacy Act of 1974 are contained in Departmental regulations under 6 CFR
part 5, subpart B, Privacy Act.
3027.404 Basic Rights in Data clause.
3027.409 Solicitation provisions and
tract clauses.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
Subpart 3024.2—Freedom of
Information Act
3024.203
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Policy.
Subpart 3027.2—Patents
(a) The Department’s implementation of the Freedom of Information Act
is codified in regulations 6 CFR part 5,
subpart B, FOIA. Information request
concerning awards beyond those routinely handled by contracting officers
(e.g.,
identification
of
successful
offerors,
public
announcements,
debriefings, surety notices under HSAR
3028.106–6) shall be submitted to the
FOIA Office of the Component making
the award. The FOIA office for the DHS
Office of Operations only, is Departmental Disclosure Officer (DDO), DHS,
Washington, DC 20528 or [email protected].
(b) See (FAR) 48 CFR 15.207(b) on safeguarding proposals.
3027.205
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
3027.208 Use of patented technology
under the North American Free
Trade Agreements.
(f) Contracting officers shall ensure
compliance.
Subpart 3027.3—Patent Rights
under Government Contracts
3027.304–1
General.
Interim and final invention reports
and notification of all subcontracts for
experimental, developmental, or research work (FAR) 48 CFR 27.304–
1(e)(2)(ii) may be submitted on DD
Form 882, Report of Inventions and
Subcontracts.
PART 3025—FOREIGN
ACQUISITION [RESERVED]
yshivers on PROD1PC62 with CFR
Adjustment of royalties.
(a) Reports shall be made to Component legal counsel. Contracting Officers shall coordinate actions with the
COCO and HCA.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48801, Aug. 22, 2006]
PART
3026—OTHER
SOCIOECONOMIC PROGRAMS [RESERVED]
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Homeland Security Department
3027.304–5
3028.106–6
3028.106–70 Execution and administration of
bonds.
3028.106–490 Contract clause (USCG).
Appeals.
(a) Contracting officers are authorized to take the specified actions.
(b) Appeals shall be made to the CPO.
3027.305 Administration
Rights Clauses.
of
Subpart 3028.3—Insurance
3028.306 Insurance under fixed-price contracts.
3028.306–90 Contracts for lease of aircraft
(USCG).
3028.307 Insurance under cost-reimbursement contracts.
3028.307–1 Group insurance plans.
3028.310 Contract clause for work on a Government installation.
3028.310–70 Contract clause.
3028.311 Solicitation provision and contract
clause on liability insurance under costreimbursement contracts.
3028.311–1 Contract clause.
Patent
3027.305–4 Conveyance of invention
rights acquired by the Government.
The contracting officer shall ensure
that solicitations and contracts which
include a patent rights clause include a
means for the contractor to report inventions made in the course of contract performance and at contract
completion. This requirement may be
fulfilled by requiring the contractor to
submit a DD Form 882, Report of Inventions and Subcontract.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
3027.306 Licensing background patent
rights to third parties.
Subpart 3028.1—Bonds and Other
Financial Protections
(b) The CPO shall make the required
determinations and notifications under
this subpart.
3028.106
Subpart 3027.4—Rights in Data
and Copyrights
3027.404
3028.106–6
(f)(1)(iii) The DHS will use Alternate
IV of the (FAR) 48 CFR clause 52.227–14
in all contracts containing the basic
clause, unless the HCA approves an exclusion. Approval at a level above the
contracting officer is required for the
contract to exclude items or categories
of data from Alternative IV.
provisions
and
Alternate IV of the (FAR) 48 CFR
clause 52.227–14 shall be included in solicitations and contracts containing
the basic clause unless the HCA approves an exclusion. Additional nonconflicting alternates may be used.
PART 3028—BONDS AND
INSURANCE
Subpart 3028.1—Bonds and Other
Financial Protections
yshivers on PROD1PC62 with CFR
Furnishing information.
(b) The contracting officer shall,
upon request, furnish the name and address of the prime contractor’s surety
or sureties to employees, suppliers, and
subcontractors having a contractual or
employment relationship with prime
contractors, subcontractors or suppliers. When furnishing surety information, the inquirer may also be informed
that:
(1) Persons believing that they have
legal remedies under the Miller Act are
cautioned to consult their own legal
advisor regarding the proper steps to
take to obtain remedies.
(2) On construction contracts exceeding $2,000, if the contracting officer is
informed (through routine compliance
checking, a complaint, or a request for
information) that a laborer, mechanic,
apprentice, trainee, watchman, or
guard employed by the contractor or
subcontractor at any tier may have
been paid wages less than those required by the applicable labor standards provisions of the contract, the
contracting officer shall promptly initiate an investigation in accordance
with (FAR) 48 CFR Subpart 22.4, irrespective of the employee’s rights under
Basic rights in data clause.
3027.409 Solicitation
contract clauses.
Administration.
Sec.
3028.106 Administration.
3028.106–6 Furnishing information.
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3028.106–70
48 CFR Ch. 30 (10–1–07 Edition)
file shall cross-reference the applicable
bonds.
the Miller Act. When an employee’s request for information is involved, the
contracting officer shall inform the inquirer that such investigation will be
made. Such investigation is required
pursuant to the provisions of the
Davis-Bacon Act, Contract Work Hours
and
Safety
Standards
Act,
and
Copeland (Anti-Kickback) Act for assuring proper payment to such employees.
(c) When furnishing a copy of a payment bond and contract in accordance
with (FAR) 48 CFR 28.106–6(c), the requirement for a copy of the contract
may be satisfied by furnishing a machine-duplicate copy of the contract’s
cover page, showing the contract number and date, the contractor’s name
and signature, the contracting officer’s
signature, and the description of the
contract work. The contracting officer
furnishing the copies shall place the
statement ‘‘Certified to be a true and
correct copy’’ followed by a signature,
title and name of the Component. The
fee for furnishing the requested certified copies shall be determined according to the DHS Freedom of Information Act regulation, 6 CFR part 5,
subpart B.
3028.106–490 Contract clause (USCG).
For the U.S. Coast Guard, the contracting officer shall insert the USCG
clause at (HSAR) 48 CFR 3052.228–90,
Notification of Miller Act Payment
Bond Protection (USCG), in solicitations and contracts, and shall require
its first-tier subcontractors to insert
the clause in all of their subcontracts,
when payment bonds are required.
[71 FR 25771, May 2, 2006]
Subpart 3028.3—Insurance
3028.306 Insurance under fixed-price
contracts.
3028.306–90 Contracts for lease of aircraft (USCG).
(a) For the U.S. Coast Guard, the
contracting officer shall insert the
clauses at (HSAR) 48 CFR 3052.228–91
through 3052.228–93, unless otherwise
indicated by the specific instructions
for their use, in any contract for the
lease of aircraft (including aircraft
used in out-service flight training).
(b) For the U.S. Coast Guard, the
contracting officer shall insert the
clause at (HSAR) 48 CFR 3052.228–91,
Loss of or Damage to Leased Aircraft,
in any contract for the lease of aircraft, except in the following circumstances:
(1) When the hourly rental rate does
not exceed $250 and the total rental
cost for any single transaction is not in
excess of $2,500:
(2) When the cost of hull insurance
does not exceed 10 percent of the contract rate; or
(3) When the lessor’s insurer does not
grant a credit for uninsured hours,
thereby preventing the lessor from
granting the same to the Government.
(c) For the U.S. Coast Guard, the
contracting officer shall insert the
clause at (HSAR) 48 CFR 3052.228–92,
Fair Market Value of Aircraft, when
fair market value of the aircraft can be
determined.
(d) 49 U.S.C. 44112, as amended, provides that no lessor of an aircraft
under a bona fide lease of 30 days or
more shall be liable by reason of his interest as lessor or title-holder of the
yshivers on PROD1PC62 with CFR
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25771, May 2, 2006; 71 FR 48801, Aug. 22,
2006]
3028.106–70 Execution and administration of bonds.
(a) The contracting officer shall notify the surety within 30 days, of the
contractor’s failure to perform in accordance with the terms of the contract.
(b) When a partnership is a principal
on a bond, the names of all the members of the firm shall be listed in the
bond following the name of the firm,
and the phrase ‘‘a partnership composed of.’’ If a principal is a corporation, the state of incorporation shall
also appear on the bond.
(c) Performance or payment bond(s)
other than an annual bond shall not
predate the contract to which it pertains.
(d) Bonds may be filed with the original contract to which they apply, or all
bonds can be separately maintained
and reviewed quarterly for validity. If
separately maintained, each contract
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Homeland Security Department
3028.311–1
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aircraft for any injury to or death of
persons, or damage to or loss of property, unless such aircraft is in the actual possession or control of such person at the time of such injury, death,
damage or loss. On short-term or intermittent-use leases, however, the owner
may be liable for damage caused by operation of the aircraft. It is usual for
the aircraft owner to retain insurance
covering this liability during the term
of such lease. Such insurance can,
often for little or no increase in premium, be made to cover the Government’s exposure to liability as well. In
order to take advantage of this coverage, the Risks and Indemnities
clause at (HSAR) 48 CFR 3052.228–93
prescribed in paragraph (d)(1) of this
section shall be used.
(1) For the U.S. Coast Guard, the contracting officer shall insert the clause
at (HSAR) 48 CFR 3052.228–93, Risk and
Indemnities, in any contract for outservice flight training or for the lease
of aircraft when the Government will
have exclusive use of the aircraft for a
period of less than thirty days.
(2) For the U.S. Coast Guard, any
contract for out-service flight training
shall include a clause in the contract
schedule stating substantially that the
contractor’s personnel shall at all
times during the course of the training
be in command of the aircraft and that
at no time shall other personnel be permitted to take command of the aircraft.
3028.307 Insurance under
bursement contracts.
3028.307–1
cost-reim-
Group insurance plans.
Plans shall be submitted to the contracting officer, who must obtain the
advice of legal counsel.
3028.310 Contract clause for work on a
Government installation.
3028.310–70
Contract clause.
Insert a clause substantially similar
to (HSAR) 48 CFR 3052.228–70, ‘‘Insurance,’’ in all solicitations and contracts that contain the clause at (FAR)
47 CFR 52.228–5.
3028.311 Solicitation provision and
contract clause on liability insurance
under
cost-reimbursement
contracts.
3028.311–1
Contract clause.
Insert a clause substantially similar
to (HSAR) 48 CFR 3052.228–70, ‘‘Insurance,’’ in all solicitations and contracts that contain the clause at (FAR)
48 CFR 52.228–7, unless waived by an official one level above the contracting
officer.
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SUBCHAPTER E—GENERAL CONTRACTING REQUIREMENTS
cer must advise the prospective contractor that any costs incurred before
contract award are incurred at the contractor’s sole risk and that if negotiations fail to result in a binding contract, payment of these costs will not
be made by the Government. See
(HSAR) 48 CFR 3031.205–32(b) regarding
exception due to reconciliation of
costs.
(b) When the contracting officer determines that incurring precontract
costs was necessary to meet the proposed contract delivery schedule of a
cost-reimbursement
contract,
the
clause at (HSAR) 48 CFR 3052.231–70,
Precontract Costs, may be inserted in
the resultant contract.
PART 3029—TAXES [RESERVED]
PART 3030—COST ACCOUNTING
STANDARDS ADMINISTRATION
Subpart 3030.2—CAS Program
Requirements
Sec.
3030.201 Contract requirements.
3030.201–5 Waiver.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3030.2—CAS Program
Requirements
3030.201
Contract requirements.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25771, May 2, 2006; 71 FR 48801, Aug. 22,
2006]
3030.201–5 Waiver.
(a) The CPO is authorized to waive
the applicability of the Cost Accounting Standards (CAS) under (FAR) 48
CFR 30.201–5(b). This authority may
not be redelegated.
(c) Waiver requests must conform to
(HSAR) 48 CFR 3001.70.
PART 3032—CONTRACT
FINANCING
Subpart 3032.000—Scope of Part
Sec.
3032.003 Simplified acquisition procedures
financing.
3032.006 Reduction or suspension of contract
payments upon finding of fraud.
3032.006–2 Definition.
3032.006–3 Responsibilities.
[71 FR 25771, May 2, 2006]
PART 3031—CONTRACT COST
PRINCIPLES AND PROCEDURES
Subpart 3031.2—Contracts with
Commercial Organizations
Subpart 3032.11—Electronic Funds Transfer
Sec.
3031.205 Selected costs.
3031.205–32 Precontract costs.
3032.1110 Solicitation
tract clauses.
con-
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3031.2—Contracts with
Commercial Organizations
Subpart 3032.000—Scope of Part
3031.205
3032.003 Simplified acquisition procedures financing.
Selected costs.
Contract financing may be permitted
for purchases made under the authority of (FAR) 48 CFR Part 13. This authority is delegated to COCO and may
not be redelegated.
3031.205–32 Precontract costs.
(a) The decision to incur precontract
costs is that of the contractor. DHS
employees may not authorize, demand,
or require a contractor to incur
precontract costs. The contracting offi-
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and
AUTHORITY: 41 U.S.C. 418b (a) and (b).
AUTHORITY: 41 U.S.C. 418b (a) and (b).
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3032.006
48 CFR Ch. 30 (10–1–07 Edition)
3032.006 Reduction or suspension of
contract payments upon finding of
fraud.
3033.211 Contracting
sion.
Officer’s
For DHS contracts, the Board of Contract Appeals (BCA) noted in (FAR)
33.211 is the Civilian Board of Contract
Appeals (CBCA) 1800 F Street, NW.,
Washington, DC 20405.
3032.006–2 Definition.
The CPO is the DHS remedy coordination official (RCO).
3032.006–3 Responsibilities.
(a) The CPO is authorized to establish specific procedures.
(b) Reports shall be made through
the HCA to the CPO.
[72 FR 1297, Jan. 11, 2006]
3033.214 Alternative
tion (ADR).
dispute
3032.1110 Solicitation provision and
contract clauses.
(a)(1) Contracting officer shall insert
FAR 48 CFR 52.232–33, Payment by
Electronic Funds Transfer—Central
Contractor Registration, in all proposed solicitations and contracts.
PART 3033—PROTESTS, DISPUTES,
AND APPEALS
Subpart 3033.2—Disputes and Appeals
Sec.
3033.201 Definitions.
3033.211 Contracting officer’s decision.
3033.214 Alternative
disputes
resolution
(ADR).
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25771, May 2, 2006; 72 FR 1297, Jan. 11,
2007]
Subpart 3033.2—Disputes and
Appeals
PART 3034—MAJOR SYSTEM
ACQUISITION [RESERVED]
3033.201 Definitions.
Agency Board of Contract Appeals
means the Civilian Board of Contract
Appeals (CBCA).
[72 FR 1297, Jan. 11, 2007]
yshivers on PROD1PC62 with CFR
resolu-
(c) The Administrative Dispute Resolution Act (ADRA) of 1996, as amended,
5 U.S.C. 571, et seq., authorizes and encourages agencies to use mediation,
conciliation, arbitration, and other
techniques for the prompt and informal
resolution of disputes, and for other
purposes. CBCA guidance on ADR may
be obtained at http://www.gsbca.gsa.gov/
CBCA-17712-v1CBCAlADRlINFORMATION.pdf
or
from the CBCA upon request. ADR procedures may be used—
(1) When there is mutual consent by
the parties to participate in the ADR
process (with consent being obtained
either before or after an issue in controversy has arisen);
(2) Prior to the submission of a
claim; and
(3) In resolution of a formal claim.
Subpart 3032.11—Electronic Funds
Transfer
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SUBCHAPTER F—SPECIAL CATEGORIES OF CONTRACTING
PART 3035—RESEARCH AND
DEVELOPMENT CONTRACTING
opment Centers (FFRDCs) in (FAR) 48
CFR 35.017.
Subpart 3035.000—Scope of Part
[71 FR 25771, May 2, 2006, as amended at 71
FR 48802, Aug. 22, 2006]
Sec.
3035.003 Policy.
3035.017 Federally Funded Research and Development Centers.
Subpart 3035.70—Information Dissemination by Educational Institutions
Subpart 3035.70—Information
Dissemination by Educational Institutions
3035.7000
3035.7000
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3035.000—Scope of Part
[71 FR 25771, May 2, 2006]
3035.003 Policy.
(b) Cost sharing shall be determined
on a case by case basis. Components
may establish procedures for cost sharing.
(c) Recoupment shall be determined
on a case-by-case basis. Recoupment
not otherwise required by law should
be structured to address factors such as
recovering the Department’s fair share
of its investment in nonrecurring costs
related to the items acquired. Advice
of legal counsel shall be obtained prior
to establishing cost sharing policies
and recoupment mechanisms under
(FAR) 48 CFR 35.003(b) and (c).
yshivers on PROD1PC62 with CFR
Contract clause.
The contracting officer may use the
clause at (HSAR) 48 CFR 3052.235–70,
Dissemination of Information—Educational Institutions, except in contracts that require coordination of information release.
Contract clause.
PART 3036—CONSTRUCTION AND
ARCHITECT-ENGINEER CONTRACTS
Subpart 3036.2—Special Aspects of
Contracting for Construction
Sec.
3036.201 Evaluation of contractor performance.
Subpart 3036.5—Contract Clauses
3036–570 Special precautions for work at operating airports.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48802, Aug. 22, 2006]
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
3035.017 Federally Funded Research
and Development Centers.
(a) In accordance with section 309(b)
of the Homeland Security Act, 6 U.S.C.
189(b), DHS may be a joint sponsor
under a multiple agency sponsorship
arrangement with the Department of
Energy (DOE) of one or more DOE national laboratories or sites. DOE shall
be the primary sponsor under any multiple agency sponsorship arrangement
with DOE laboratories or sites. Work
performed by a DOE national laboratory or site under a joint sponsorship
arrangement with DHS Components
shall comply with policy on the use of
Federally Funded Research and Devel-
Subpart 3036.2—Special Aspects
of Contracting for Construction
3036.201 Evaluation of contractor performance.
(a)(2) Performance reports shall be
prepared and entered into the Contractor Performance System (CPS) on
an annual basis for contracts exceeding
one year, or as otherwise required by
(FAR) 48 CFR 36.201. Access to reports
is through the CPS or the governmentwide system, Past Performance Information Retrieval System (PPIRS).
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3036.570
48 CFR Ch. 30 (10–1–07 Edition)
Subpart 3036.5—Contract Clauses
3037.104–91 Personal
services
contracts with individuals under the
authority of 10 U.S.C. 1091 (USCG).
3036.570 Special precautions for work
at operating airports.
(a) Health care personal services contracts awarded to individuals shall be
selected through procedures established in this section. Selections made
using the procedures in this section are
exempt by statute from (HSAR) 48 CFR
part 3006 competition requirements
(see (HSAR) 48 CFR 3006.9000 (USCG))
and from (FAR) 48 CFR Part 6 competition requirements.
(b) The contracting officer shall provide adequate advance notice of contracting opportunities to individuals
residing in the area of the facility. The
notice should include the qualification
criteria against which individuals responding shall be evaluated. Contracting officers shall solicit offerors
through the most effective means of
seeking competition, such as a local
publication, which serves the area of
the facility. Acquisitions of health care
services using personal services contracts are exempt from posting and
synopsis requirements of (FAR) 48 CFR
Part 5.
(c) The contracting officer shall provide the qualifications of individuals
responding to the notice to the representative(s) responsible for evaluation and ranking according to the evaluation procedures. Individuals shall be
considered solely on the professional
qualifications established for the particular health care services being acquired and the Government’s estimate
of reasonable rates, fees, or costs. The
representative(s) responsible for the
evaluation and ranking shall provide
the contracting officer with rationale
for the ranking of the individuals consistent with the required qualifications.
(d) Upon receipt of the ranked listing
of offerors, the contracting officer
shall either:
(1) Enter into negotiations with the
highest ranked offeror. If a mutually
satisfactory contract cannot be negotiated, the contracting officer shall
terminate negotiations with the highest ranked offeror and enter into negotiations with the next highest, or;
(2) Enter into negotiations with all
qualified offerors and select on the
Where any acquisition will require
work at an operating airport, insert
the clause at (HSAR) 48 CFR 3052.236–
70, Special Precautions for Work at Operating Airports, in solicitations and
contracts.
PART 3037—SERVICE
CONTRACTING
Subpart 3037.1—Service Contracts—
General
Sec.
3037.103 [Reserved]
3037.104 Personal services contracts.
3037.104–70 Personal services contracts.
3037.104–90 Personal
services
contracts
(USCG).
3037.104–91 Personal services with individuals under the authority of 10 U.S.C. 1091
(USCG).
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3037.1—Service
Contracts—General
3037.103
[Reserved]
3037.104
Personal services contracts.
3037.104–70
tracts.
Personal
service
con-
(b) Authorization to acquire the personal services of experts and consultants is included in section 832 of the
Homeland Security Act, 6 U.S.C. 392.
This section includes authority to use
personal service contracts, including
authority to contract without regard
to the pay limitation of 5 U.S.C. 3109
when the services are necessary due to
an urgent homeland security need.
[71 FR 25771, May 2, 2006]
3037.104–90 Personal
tracts (USCG).
services
con-
yshivers on PROD1PC62 with CFR
The U.S. Coast Guard HCA may enter
into medical personal services contracts in accordance with 10 U.S.C.
1091.
[71 FR 25771, May 2, 2006]
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Homeland Security Department
3037.104–91
yshivers on PROD1PC62 with CFR
basis of qualifications and rates, fees,
or other costs.
(e) In the event only one individual
responds to an advertised requirement,
the contracting officer is authorized to
negotiate the contract award. In this
case, the individual must still meet the
minimum qualifications of the requirement and the contracting officer must
be able to make a determination that
the price is fair and reasonable.
(f) If a fair and reasonable price cannot be obtained from a qualified individual, the requirement should be canceled and acquired using procedures
other than those set forth in this section.
(g) The total amount paid to an individual in any year for health care services under a personal services contract
shall not exceed the paycap in
COMDTINST M4200.19 (series), Coast
Guard Acquisition Procedures.
(h) The contract may provide for the
same per diem and travel expenses authorized for a Government employee,
including actual transportation and
per diem in lieu of subsistence for travel between home or place of business
and official duty station and only for
travel outside the local area in support
of the statement of work.
(i) Coordinate benefits, taxes and
maintenance of records with the appropriate office(s).
(j) The contracting officer shall insure that contract funds are sufficient
to cover all contingency items that
may be cited in the statement of work
for health care services.
PART
3038—FEDERAL
SUPPLY
SCHEDULE CONTRACTING [RESERVED]
PART 3039—ACQUISITION OF INFORMATION TECHNOLOGY [RESERVED]
PART 3040 [RESERVED]
PART 3041—ACQUISITION OF UTILITY SERVICES [RESERVED]
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SUBCHAPTER G—CONTRACT MANAGEMENT
PART 3042—CONTRACT ADMINISTRATION AND AUDIT SERVICES
Subpart 3042.70—Contracting
Officer’s Technical Representative
Subpart 3042.2—Contract Administration
Services
3042.7000 Contract clause.
The contracting officer shall insert
the clause at (HSAR) 48 CFR 3052.242–
72, Contracting Officer’s Technical
Representative, in solicitations and
contracts when it is intended that a
representative will be assigned to the
contract to perform functions of a
technical nature.
Sec.
3042.202 Assignment of contract administration.
3042.202–70 Contract clause.
Subpart 3042.15—Contractor Performance
Information
3042.1502
PART 3043—CONTRACT
MODIFICATIONS [RESERVED]
Policy.
Subpart 3042.70—Contracting Officer’s
Technical Representative
3042.7000
PART
3044—SUBCONTRACTING
POLICIES AND PROCEDURES [RESERVED]
Contract clause.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
PART 3045—GOVERNMENT
PROPERTY
Subpart 3042.2—Contract
Administration Services
Subpart 3045.5—Management of Government Property in the Possession of
Contractors
3042.202 Assignment of contract administration.
3042.202–70
Sec.
3045.505 Records and reports of Government
property.
3045.505–14 Reports of Government property.
3045.505–70 Solicitation provisions and contract clauses.
3045.508 Physical inventories.
3045.508–2 Reporting results of inventories.
3045.508–3 Quantitative and monetary control.
3045.511 Audit of property control system.
Contract clause.
The contracting officer may insert
the clause at (HSAR) 48 CFR 3052.242–
71, Dissemination of Contract Information, in DHS contracts. For contracts
with educational institutions, the contracting officer may instead use
(HSAR) 48 CFR 3052.235–70, Dissemination of Information—Educational Institutions, when coordination of information release is not required.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
[71 FR 25771, May 2, 2006]
Subpart 3045.5—Management of
Government Property in the
Possession of Contractors
Subpart 3042.15—Contractor
Performance Information
3042.1502
3045.505 Records and reports of Government property.
Policy.
yshivers on PROD1PC62 with CFR
(a) Components shall use the Contractor Performance System (CPS) for
evaluating contractor performance in
accordance with (FAR) 48 CFR 42.1502
and part 1503.
3045.505–14 Reports of Government
property.
(a) When Government property is furnished to or acquired by the contractor
to perform the contract, the contract
shall require the contractor to submit
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48802, Aug. 22, 2006]
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3045.505–70
48 CFR Ch. 30 (10–1–07 Edition)
annual reports (see (FAR) 48 CFR
45.505–14) to the contracting officer not
later than September 15 of each year.
The contractor’s report shall be submitted on DHS Form 0700–05, Contractor Report of Government Property.
3045.505–70 Solicitation
and contract clauses.
(1) Failure of the contractor to acknowledge receipt of GFP;
(2) Failure of the contractor to submit the annual property reports required by (HSAR) 48 CFR 3045.505–14;
(3) Failure of the contractor to reconcile its physical inventory with its
property control record; or
(4) Failure of the contractor to submit a Government property listing
when requested by the property administrator.
(b) When it is determined that the
contractor’s property control system is
deficient, the property administrator,
in coordination with the contracting
officer, shall discuss the deficiencies
with the contractor. If the contractor
does not take action to correct the deficiencies, the contracting officer shall
provide the contractor with a written
notice of the deficiencies and the date
all deficiencies shall be corrected.
provisions
Contracting officers shall insert the
clause at (HSAR) 48 CFR 3052.245–70 in
solicitations and contracts when the
contract will require Government provided or contractor acquired property.
3045.508
Physical inventories.
3045.508–2
tories.
Reporting results of inven-
The inventory report shall also include the following:
(a) Name and title of the individual(s) that performed the physical
inventory;
(b) An itemized, categorized listing of
all property capitalized:
(1) Land and rights therein;
(2) Other real property;
(3) Plant equipment;
(4) Special test equipment; and
(5) Special tooling;
(c) An itemized listing of the property lost, damaged, destroyed, or stolen, the circumstances surrounding
each incident, and the resolution of the
incident; and
(d) Any discrepancies between the
physical inventory and the contractor’s record of Government property.
PART 3046—QUALITY ASSURANCE
Subpart 3046.7—Warranties
Sec.
3046.702 [Reserved]
3046.790 Use of warranties in major systems
acquisitions by the USCG (USCG).
3046.790–1 Scope (USCG).
3046.790–2 Definitions (USCG).
3046.790–3 Policy (USCG).
3046.790–4 Waiver (USCG).
3046.791–1 Policy (USCG).
3046.791–2 Tailoring warranty terms and
conditions. (USCG).
3046.791–3 Warranties on Government-furnished property (USCG).
3046.792 Cost benefit analysis (USCG).
3046.793 Waiver and notification procedures
(USCG).
3045.508–3 Quantitative and monetary
control.
Contracting officers shall require the
contractor to provide the quantity and
unit cost of each item of Government
property reported under (HSAR) 48
CFR 3045.508–2(b) and (c).
yshivers on PROD1PC62 with CFR
3045.511
tem.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Audit of property control sys-
(a) The property administrator (or
other Government official authorized
by the contracting officer) shall audit
the contractor’s property control system whenever there are indications
that the contractor’s property control
system may be deficient. Examples of
deficiencies are:
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Homeland Security Department
3046.790–4
ensure that the items listed at the
Homeland Security Acquisition Manual (HSAM) Chapter 3046 have been
considered. The warranty shall also
meet the following requirements:
(1) For systems or components that
are commercially available, such warranty as is normally provided by the
manufacturer or supplier shall be obtained in accordance with (FAR) 48
CFR 46.703(d) and 46.710(b)(2).
(2) For systems or components provided in accordance with either design
and manufacturing or performance requirements as specified in the contract
or any modification to that contract, a
warranty of compliance with the stated
requirements shall be obtained.
(3) Any warranty obtained shall specifically exclude coverage for combat
damage.
(4) A contractor for a major systems
acquisition shall not be required to
provide the warranties specified in this
section on any property furnished to
that contractor by the Government except for defects in installation.
Subpart 3046.7—Warranties
3046.702
[Reserved]
3046.790 Use of warranties in major
systems acquisitions by the USCG
(USCG).
3046.790–1 Scope (USCG).
This subpart provides the policy for
the USCG to use in obtaining warranties from contractors when contracting
for the acquisition of a major system.
[68 FR 67871, Dec. 4, 2003. Redesignated and
amended at 71 FR 25772, May 2, 2006]
3046.790–2 Definitions (USCG).
As used in this part:
At no additional cost to the Government
means without an increase in price for
firm-fixed-price contracts, without an
increase in target or ceiling price for
fixed price incentive contracts (see
(FAR) 48 CFR 46.707).
Defect means any condition or characteristic in any supplies or services
furnished by the contractor under the
contract that is not in compliance with
the requirements of the contract.
Design and manufacturing requirement
means structural and engineering plans
and manufacturing particulars, including precise measurements, tolerances,
materials and finished product tests for
the major system being produced.
Performance requirements means the
operating capabilities, maintenance,
and reliability characteristics of a system that are determined to be necessary for it to fulfill the requirement
for which the system is designed.
[71 FR 25772, May 2, 2006]
3046.790–4
(a) The Secretary of Homeland Security may waive the requirement for a
warranty for USCG major system acquisitions when the waiver is in the interest of national defense or if the warranty obtained would not be cost beneficial. A waiver may be granted provided that the Committees on Appropriations of the Senate and the House
of Representatives, the Committee on
Commerce, Science and Transportation
of the Senate, and the Committee on
Merchant Marine and Fisheries of the
House of Representatives are notified,
in writing, of the Secretary’s intention
to waive the warranty requirements
and the reasons supporting such a determination, prior to granting the
waiver.
The request for Secretarial waiver
shall include, as a minimum:
(1) A brief description of the major
system and its stage of production
(e.g., the number of units delivered and
anticipated to be delivered during the
life of the program);
[71 FR 25772, May 2, 2006]
yshivers on PROD1PC62 with CFR
Waiver (USCG).
3046.790–3 Policy (USCG).
(a) Major Systems. The use of warranties by the USCG in the procurement of
major systems valued at $10,000,000 or
higher is mandatory, unless waived
(see (HSAR) 48 CFR 3046.790–4).
(b) Any warranty on major system
acquisitions shall not apply in the case
of any system or component thereof
which has been furnished by the Government to a contractor except as indicated in paragraph (c)(4) of this section.
(c) When drafting warranty provisions/clauses for major systems acquisitions, the contracting officer shall
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3046.791–1
48 CFR Ch. 30 (10–1–07 Edition)
(2) The specific waiver requested, the
duration of the waiver if it is to involve more than one contract, and the
rationale for the waiver; and
(3) All documentation supporting the
request for waiver, such as a cost-benefit analysis.
(b) The waiver request shall be forwarded to the Secretary, via the CPO.
The USCG shall maintain a written
record of each waiver granted and the
Congressional notification and report
made, together with supporting documentation.
[71 FR 25772, May 2, 2006]
yshivers on PROD1PC62 with CFR
3046.791–1
Policy (USCG).
The USCG shall include a warranty
in all contracts for major systems acquisitions. When drafting warranty
provisions/clauses for major systems
acquisitions, the contracting officer
shall ensure that the items listed at
(HSAR) 48 CFR 3046.706 have been considered. The warranty shall also meet
the following requirements:
(a) For systems or components which
are commercially available, such warranty as is normally provided by the
manufacturer or supplier shall be obtained in accordance with (FAR) 48
CFR 46.703(d) and (FAR) 48 CFR
46.710(b)(2).
(b) For systems or components provided in accordance with either design
and manufacturing or performance requirements as specified in the contract
or any modification to that contract, a
warranty of compliance with the stated
requirements shall be obtained.
(c) The warranty provided under
paragraph (b) of this section shall provide that in the event the major system or any component thereof fails to
meet the terms of the warranty provided, the contracting officer may:
(1) Require the contractor to promptly take such corrective action as the
contracting officer determines to be
necessary at no additional cost to the
Government, including repairing or replacing all parts necessary to achieve
the requirements set forth in the contract;
(2) Require the contractor to pay
costs reasonably incurred by the
United States in taking necessary corrective action; or
(3) Equitably reduce the contract
price.
(d) Any warranty shall specifically
exclude coverage of combat damage.
3046.791–2 Tailoring warranty terms
and conditions (USCG).
(a) As the objectives and circumstances vary considerably among
major systems acquisition programs,
contracting officers shall appropriately
tailor the warranty on a case-by-case
basis, including remedies, exclusions,
limitations and durations, provided the
tailoring is consistent with the specific
requirements of this subpart and (FAR)
48 CFR 46.706.
(b) Contracting officers of major systems acquisitions may exclude from
the terms of the warranty certain defects for specified supplies (exclusions)
and may limit the contractor’s liability under the terms of the warranty
(limitations), as appropriate, if necessary to derive a cost-effective warranty in light of the technical risk,
contractor financial risk, or other program uncertainties.
(c) Contracting officers are encouraged to structure a broader and more
comprehensive warranty where such is
advantageous. Likewise, the contracting officer may narrow the scope
of a warranty when appropriate (e.g.,
where it would be inequitable to require a warranty of all performance requirements because a contractor had
not designed the system).
(d) Contracting officers shall not include in a warranty clause any terms
that require the contractor to incur liability for loss, damage, or injury to
third parties.
3046.791–3 Warranties on Governmentfurnished property (USCG).
A contractor for a major systems acquisition shall not be required to provide the warranties specified in (HSAR)
48 CFR 3046.790–1 on any property furnished to that contractor by the Government except for:
(a) Defects in installation; and
(b) Installation or modification in
such a manner that invalidates a warranty provided by the manufacturer of
the property.
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Homeland Security Department
3046.792
3047.305–70
PART 3047—TRANSPORTATION
Cost benefit analysis (USCG).
If a specific warranty is considered
not to be cost beneficial by the contracting officer, a waiver request shall
be initiated in accordance with guidance at (HSAR) 48 CFR 3046.793.
3046.793 Waiver and notification procedures (USCG).
yshivers on PROD1PC62 with CFR
(a) The Secretary of Homeland Security, without delegation, may waive
the requirement for a warranty for
USCG major system acquisitions when
the waiver is in the interest of national
defense or if the warranty obtained
would not be cost beneficial. A waiver
may be granted provided that the Committees on Appropriations of the Senate and the House of Representatives,
the Committee on Commerce, Science
and Transportation of the Senate, and
the Committee on Merchant Marine
and Fisheries of the House of Representatives are notified, in writing, of
the Secretary’s intention to waive the
warranty requirements and the reasons
supporting such a determination prior
to granting the waiver. The request for
Secretarial waiver shall include, as a
minimum:
(1) A brief description of the major
system and its stage of production
(e.g., the number of units delivered and
anticipated to be delivered during the
life of the program);
(2) The specific waiver requested, the
duration of the waiver if it is to involve more than one contract, and the
rationale for the waiver; and
(3) All documentation supporting the
request for waiver, such as a cost-benefit analysis.
(b) The waiver request shall be forwarded to the Secretary, via the CPO.
The USCG shall maintain a written
record of each waiver granted and the
Congressional notification and report
made, together with supporting documentation.
Subpart 3047.3—Transportation in Supply
Contracts
Sec.
3047.305 Solicitation provisions, contract
clauses, and transportation factors.
3047.305–70 Solicitation provision.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3047.3—Transportation in
Supply Contracts
3047.305 Solicitation provisions, contract clauses, and transportation
factors.
3047.305–70 Solicitation provisions.
The contracting officer shall insert
the following provisions in solicitations, as applicable:
(a) (HSAR) 48 CFR 3052.247–70, F.o.b.
Origin Information, with Alternates I
or II, as applicable, shall be inserted in
accordance with (FAR) 48 CFR 47.305–
3(b);
(b) (HSAR) 48 CFR 3052.247–71, F.o.b.
Origin Only, shall be inserted in accordance with (FAR) 48 CFR 47.305–3(e);
and
(c) (HSAR) 48 CFR 3052.247–72, F.o.b.
Destination Only, shall be inserted in
accordance with (FAR) 48 CFR 47.305–
4(b).
PART 3048—VALUE ENGINEERING
[RESERVED]
PART 3049—TERMINATION OF
CONTRACTS [RESERVED]
PART
3050—EXTRAORDINARY
CONTRACTUAL ACTIONS [RESERVED]
PART 3051—USE OF GOVERNMENT
SOURCES BY CONTRACTORS [RESERVED]
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SUBCHAPTER H—CLAUSES AND FORMS
PART 3052—SOLICITATION PROVISIONS
AND
CONTRACT
CLAUSES
Subpart 3052.1—Instructions for Using
Provisions and Clauses
Sec.
3052.101
Using part 3052.
yshivers on PROD1PC62 with CFR
Subpart 3052.2—Texts of Provisions and
Clauses
3052.204–70 Security requirements for unclassified information technology resources.
3052.204–71 Contractor employee access.
3052.209–70 Prohibition on contracts with
corporate expatriates.
3052.209–71 Reserve Officer Training Corps
and military recruiting on campus.
3052.209–72 Organizational conflict of interest.
3052.209–73 Limitation
of
future
contracting.
3052.211–70 Index for specifications.
3052.215–70 Key personnel or facilities.
3052.216–70 Evaluation of offers subject to
an economic price adjustment clause.
3052.216–71 Determination of award fee.
3052.216–72 Performance evaluation plan.
3052.216–73 Distribution of award fee.
3052.216–74 Settlement of letter contract.
3052.217–90 Delivery and shifting of vessel
(USCG).
3052.217–91 Performance (USCG).
3052.217–92 Inspection and manner of doing
work (USCG).
3052.217–93 Subcontracts (USCG).
3052.217–94 Lay days (USCG).
3052.217–95 Liability and insurance (USCG).
3052.217–96 Title (USCG).
3052.217–97 Discharge of liens (USCG).
3052.217–98 Delays (USCG).
3052.217–99 Department of Labor safety and
health regulations for ship repair
(USCG).
3052.217–100 Guarantee (USCG).
3052.219–70 Small business subcontracting
program reporting.
3052.219–71 DHS mentor-prote´ge´ program.
3052.219–72 Evaluation of prime contractor
participation in the DHS mentor-prote´ge´
program.
3052.222–70 Strikes or picketing affecting
timely completion of the contract work.
3052.222–71 Strikes or picketing affecting access to a DHS facility.
3052.222–90 Local hire (USCG).
3052.223–70 Removal or disposal of hazardous
substances—applicable licenses and permits.
3052.223–90 Accident and fire reporting
(USCG).
3052.228–70 Insurance.
3052.228–90 Notification of Miller Act payment bond protection (USCG).
3052.228–91 Loss of or damage to leased aircraft (USCG).
3052.228–92 Fair Market value of aircraft
(USCG).
3052.228–93 Risk and indemnities (USCG).
3052.231–70 Precontract costs.
3052.235–70 Dissemination of information—
educational institutions.
3052.236–70 Special provisions for work at
operating airports.
3052.242.70 [Reserved]
3052.242–71 Dissemination of contract information.
3052.242–72 Contracting officer’s technical
representative.
3052.245–70 Government property reports.
3052.247–70 F.o.b. origin information.
3052.247–71 F.o.b. origin only.
3052.247–72 F.o.b. destination only.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3052.1—Instructions for
Using Provisions and Clauses
3052.101
Using part 3052.
(b) Numbering.
(2)(i) Provisions or clauses that supplement the FAR.
(A) Agency-prescribed provisions and
clauses permitted by HSAR and used
on a standard basis (i.e., normally used
in two or more solicitations or contracts regardless of contract type)
shall be prescribed and contained in
the HSAR. Component desiring to use a
provision or a clause on a standard
basis shall submit a request containing
a copy of the clause(s), justification for
its use, and evidence of legal counsel
review to the CPO in accordance with
(HSAR) 48 CFR 3001.304 for possible inclusion in the HSAR.
(B) Provisions and clauses used on a
one-time basis (i.e., non-standard provisions and clauses) may be approved by
the contracting officer, unless a higher
level is designated by the Component.
This authority is subject to:
(1) Evidence of legal counsel review
in the contract file;
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3052.204–70
48 CFR Ch. 30 (10–1–07 Edition)
(2) Inserting these clauses in the appropriate sections of the uniform contract format; and
(3) Ensuring the provisions and
clauses do not deviate from the requirements of the FAR and HSAR.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48802, Aug. 22, 2006]
Subpart 3052.2—Text of Provisions
and Clauses
3052.204–70 Security requirements for
unclassified information technology
resources.
As prescribed in (HSAR) 48 CFR
3004.470–3, insert a clause substantially
the same as follows:
yshivers on PROD1PC62 with CFR
SECURITY REQUIREMENTS FOR UNCLASSIFIED
INFORMATION TECHNOLOGY RESOURCES (JUN
2006)
(a) The Contractor shall be responsible for
Information Technology (IT) security for all
systems connected to a DHS network or operated by the Contractor for DHS, regardless
of location. This clause applies to all or any
part of the contract that includes information technology resources or services for
which the Contractor must have physical or
electronic access to sensitive information
contained in DHS unclassified systems that
directly support the agency’s mission.
(b) The Contractor shall provide, implement, and maintain an IT Security Plan.
This plan shall describe the processes and
procedures that will be followed to ensure
appropriate security of IT resources that are
developed, processed, or used under this contract.
(1) Within ll [‘‘insert number of days’’]
days after contract award, the contractor
shall submit for approval its IT Security
Plan, which shall be consistent with and further detail the approach contained in the
offeror’s proposal. The plan, as approved by
the Contracting Officer, shall be incorporated into the contract as a compliance
document.
(2) The Contractor’s IT Security Plan shall
comply with Federal laws that include, but
are not limited to, the Computer Security
Act of 1987 (40 U.S.C. 1441 et seq.); the Government Information Security Reform Act of
2000; and the Federal Information Security
Management Act of 2002; and with Federal
policies and procedures that include, but are
not limited to, OMB Circular A–130.
(3) The security plan shall specifically include instructions regarding handling and
protecting sensitive information at the Contractor’s site (including any information
stored, processed, or transmitted using the
Contractor’s computer systems), and the se-
cure management, operation, maintenance,
programming, and system administration of
computer systems, networks, and telecommunications systems.
(c) Examples of tasks that require security
provisions include—
(1) Acquisition, transmission or analysis of
data owned by DHS with significant replacement cost should the contractor’s copy be
corrupted; and
(2) Access to DHS networks or computers
at a level beyond that granted the general
public (e.g., such as bypassing a firewall).
(d) At the expiration of the contract, the
contractor shall return all sensitive DHS information and IT resources provided to the
contractor during the contract, and certify
that all non-public DHS information has
been purged from any contractor-owned system. Components shall conduct reviews to
ensure that the security requirements in the
contract are implemented and enforced.
(e) Within 6 months after contract award,
the contractor shall submit written proof of
IT Security accreditation to DHS for approval by the DHS Contracting Officer. Accreditation will proceed according to the criteria of the DHS Sensitive System Policy
Publication, 4300A (Version 2.1, July 26, 2004)
or any replacement publication, which the
Contracting Officer will provide upon request. This accreditation will include a final
security plan, risk assessment, security test
and evaluation, and disaster recovery plan/
continuity of operations plan. This accreditation, when accepted by the Contracting Officer, shall be incorporated into the contract
as a compliance document. The contractor
shall comply with the approved accreditation documentation.
(End of clause)
[71 FR 25772, May 2, 2006]
3052.204–71 Contractor employee access.
As prescribed in (HSAR) 48 CFR
3004.470–3(b), insert a clause substantially the same as follows with appropriate alternates:
CONTRACTOR EMPLOYEE ACCESS (JUN 2006)
(a) ‘‘Sensitive Information,’’ as used in this
Chapter, means any information, the loss,
misuse, disclosure, or unauthorized access to
or modification of which could adversely affect the national or homeland security interest, or the conduct of Federal programs, or
the privacy to which individuals are entitled
under section 552a of title 5, United States
Code (the Privacy Act), but which has not
been specifically authorized under criteria
established by an Executive Order or an Act
of Congress to be kept secret in the interest
of national defense, homeland security or
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3052.204–71
foreign policy. This definition includes the
following categories of information:
(1) Protected Critical Infrastructure Information (PCII) as set out in the Critical Infrastructure Information Act of 2002 (Title II,
Subtitle B, of the Homeland Security Act,
Pub. L. 107–296, 196 Stat. 2135), as amended,
the implementing regulations thereto (Title
6, Code of Federal Regulations, part 29) as
amended, the applicable PCII Procedures
Manual, as amended, and any supplementary
guidance officially communicated by an authorized official of the Department of Homeland Security (including the PCII Program
Manager or his/her designee);
(2) Sensitive Security Information (SSI),
as defined in Title 49, Code of Federal Regulations, part 1520, as amended, ‘‘Policies and
Procedures of Safeguarding and Control of
SSI,’’ as amended, and any supplementary
guidance officially communicated by an authorized official of the Department of Homeland Security (including the Assistant Secretary for the Transportation Security Administration or his/her designee);
(3) Information designated as ‘‘For Official
Use Only,’’ which is unclassified information
of a sensitive nature and the unauthorized
disclosure of which could adversely impact a
person’s privacy or welfare, the conduct of
Federal programs, or other programs or operations essential to the national or homeland security interest; and
(4) Any information that is designated
‘‘sensitive’’ or subject to other controls,
safeguards or protections in accordance with
subsequently adopted homeland security information handling procedures.
(b) ‘‘Information Technology Resources’’
include, but are not limited to, computer
equipment, networking equipment, telecommunications equipment, cabling, network drives, computer drives, network software, computer software, software programs,
intranet sites, and internet sites.
(c) Contractor employees working on this
contract must complete such forms as may
be necessary for security or other reasons,
including the conduct of background investigations to determine suitability. Completed forms shall be submitted as directed
by the Contracting Officer. Upon the Contracting Officer’s request, the Contractor’s
employees shall be fingerprinted, or subject
to other investigations as required. All contractor employees requiring recurring access
to Government facilities or access to sensitive information or IT resources are required to have a favorably adjudicated background investigation prior to commencing
work on this contract unless this requirement is waived under Departmental procedures.
(d) The Contracting Officer may require
the contractor to prohibit individuals from
working on the contract if the government
deems their initial or continued employment
contrary to the public interest for any reason, including, but not limited to, carelessness, insubordination, incompetence, or security concerns.
(e) Work under this contract may involve
access to sensitive information. Therefore,
the Contractor shall not disclose, orally or
in writing, any sensitive information to any
person unless authorized in writing by the
Contracting Officer. For those contractor
employees authorized access to sensitive information, the contractor shall ensure that
these persons receive training concerning
the protection and disclosure of sensitive information both during and after contract
performance.
(f) The Contractor shall include the substance of this clause in all subcontracts at
any tier where the subcontractor may have
access to Government facilities, sensitive information, or resources.
(End of clause)
Alternate I (JUN 2006)
When the contract will require contractor
employees to have access to Information
Technology (IT) resources, add the following
paragraphs:
(g) Before receiving access to IT resources
under this contract the individual must receive a security briefing, which the Contracting Officer’s Technical Representative
(COTR) will arrange, and complete any nondisclosure agreement furnished by DHS.
(h) The contractor shall have access only
to those areas of DHS information technology resources explicitly stated in this
contract or approved by the COTR in writing
as necessary for performance of the work
under this contract. Any attempts by contractor personnel to gain access to any information technology resources not expressly
authorized by the statement of work, other
terms and conditions in this contract, or as
approved in writing by the COTR, is strictly
prohibited. In the event of violation of this
provision, DHS will take appropriate actions
with regard to the contract and the individual(s) involved.
(i) Contractor access to DHS networks
from a remote location is a temporary privilege for mutual convenience while the contractor performs business for the DHS Component. It is not a right, a guarantee of access, a condition of the contract, or Government Furnished Equipment (GFE).
(j) Contractor access will be terminated for
unauthorized use. The contractor agrees to
hold and save DHS harmless from any unauthorized use and agrees not to request additional time or money under the contract for
any delays resulting from unauthorized use
or access.
(k) Non-U.S. citizens shall not be authorized to access or assist in the development,
operation, management or maintenance of
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3052.209–70
48 CFR Ch. 30 (10–1–07 Edition)
Department IT systems under the contract,
unless a waiver has been granted by the Head
of the Component or designee, with the concurrence of both the Department’s Chief Security Officer (CSO) and the Chief Information Officer (CIO) or their designees. Within
DHS Headquarters, the waiver may be granted only with the approval of both the CSO
and the CIO or their designees. In order for
a waiver to be granted:
(1) The individual must be a legal permanent resident of the U.S. or a citizen of Ireland, Israel, the Republic of the Philippines,
or any nation on the Allied Nations List
maintained by the Department of State;
(2) There must be a compelling reason for
using this individual as opposed to a U.S. citizen; and
(3) The waiver must be in the best interest
of the Government.
(l) Contractors shall identify in their proposals the names and citizenship of all nonU.S. citizens proposed to work under the
contract. Any additions or deletions of nonU.S. citizens after contract award shall also
be reported to the contracting officer.
(End of clause)
Alternate II (JUN 2006)
When the Department has determined contract employee access to sensitive information or Government facilities must be limited to U.S. citizens and lawful permanent
residents, but the contract will not require
access to IT resources, add the following
paragraphs:
(g) Each individual employed under the
contract shall be a citizen of the United
States of America, or an alien who has been
lawfully admitted for permanent residence
as evidenced by a Permanent Resident Card
(USCIS I–551). Any exceptions must be approved by the Department’s Chief Security
Officer or designee.
(h) Contractors shall identify in their proposals, the names and citizenship of all nonU.S. citizens proposed to work under the
contract. Any additions or deletions of nonU.S. citizens after contract award shall also
be reported to the contracting officer.
(End of clause)
[71 FR 25773, May 2, 2006, as amended at 71
FR 48802, Aug. 22, 2006]
3052.209–70 Prohibition on contracts
with corporate expatriates.
As prescribed at (HSAR) 48 CFR
3009.104–75, insert the following clause:
yshivers on PROD1PC62 with CFR
PROHIBITION ON CONTRACTS WITH CORPORATE
EXPATRIATES (JUN 2006)
(a) Prohibitions.
Section 835 of the Homeland Security Act,
6 U.S.C. 395, prohibits the Department of
Homeland Security from entering into any
contract with a foreign incorporated entity
which is treated as an inverted domestic corporation as defined in this clause, or with
any subsidiary of such an entity. The Secretary shall waive the prohibition with respect to any specific contract if the Secretary determines that the waiver is required in the interest of national security.
(b) Definitions. As used in this clause:
Expanded Affiliated Group means an affiliated group as defined in section 1504(a) of the
Internal Revenue Code of 1986 (without regard to section 1504(b) of such Code), except
that section 1504 of such Code shall be applied by substituting ‘more than 50 percent’
for ‘at least 80 percent’ each place it appears.
Foreign Incorporated Entity means any entity which is, or but for subsection (b) of section 835 of the Homeland Security Act, 6
U.S.C. 395, would be, treated as a foreign corporation for purposes of the Internal Revenue Code of 1986.
Inverted Domestic Corporation. A foreign incorporated entity shall be treated as an inverted domestic corporation if, pursuant to a
plan (or a series of related transactions)—
(1) The entity completes the direct or indirect acquisition of substantially all of the
properties held directly or indirectly by a domestic corporation or substantially all of the
properties constituting a trade or business of
a domestic partnership;
(2) After the acquisition at least 80 percent
of the stock (by vote or value) of the entity
is held—
(i) In the case of an acquisition with respect to a domestic corporation, by former
shareholders of the domestic corporation by
reason of holding stock in the domestic corporation; or
(ii) In the case of an acquisition with respect to a domestic partnership, by former
partners of the domestic partnership by reason of holding a capital or profits interest in
the domestic partnership; and
(3) The expanded affiliated group which
after the acquisition includes the entity does
not have substantial business activities in
the foreign country in which or under the
law of which the entity is created or organized when compared to the total business
activities of such expanded affiliated group.
Person, domestic, and foreign have the meanings given such terms by paragraphs (1), (4),
and (5) of section 7701(a) of the Internal Revenue Code of 1986, respectively.
(c) Special rules. The following definitions
and special rules shall apply when determining whether a foreign incorporated entity should be treated as an inverted domestic
corporation.
(1) Certain stock disregarded. For the purpose of treating a foreign incorporated entity as an inverted domestic corporation these
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yshivers on PROD1PC62 with CFR
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3052.209–71
shall not be taken into account in determining ownership:
(i) stock held by members of the expanded
affiliated group which includes the foreign
incorporated entity; or
(ii) Stock of such entity which is sold in a
public offering related to an acquisition described in section 835(b)(1) of the Homeland
Security Act, 6 U.S.C. 395(b)(1).
(2) Plan deemed in certain cases. If a foreign
incorporated entity acquires directly or indirectly substantially all of the properties of a
domestic corporation or partnership during
the 4-year period beginning on the date
which is 2 years before the ownership requirements of subsection (b)(2) are met, such
actions shall be treated as pursuant to a
plan.
(3) Certain transfers disregarded. The transfer of properties or liabilities (including by
contribution or distribution) shall be disregarded if such transfers are part of a plan
a principal purpose of which is to avoid the
purposes of this section.
(d) Special rule for related partnerships.
For purposes of applying section 835(b) of the
Homeland Security Act, 6 U.S.C. 395(b) to the
acquisition of a domestic partnership, except
as provided in regulations, all domestic partnerships which are under common control
(within the meaning of section 482 of the Internal Revenue Code of 1986) shall be treated
as a partnership.
(e) Treatment of Certain Rights.
(1) Certain rights shall be treated as stocks
to the extent necessary to reflect the present
value of all equitable interests incident to
the transaction, as follows:
(i) Warrants;
(ii) Options;
(iii) Contracts to acquire stock;
(iv) Convertible debt instruments;
(v) Others similar interests.
(2) Rights labeled as stocks shall not be
treated as stocks whenever it is deemed appropriate to do so to reflect the present
value of the transaction or to disregard
transactions whose recognition would defeat
the purpose of section 835.
(f) Disclosure. The offeror under this solicitation represents that [Check one]:
lit is not a foreign incorporated entity that
should be treated as an inverted domestic
corporation pursuant to the criteria of
(HSAR) 48 CFR 3009.104–70 through 3009.104–
73;
lit is a foreign incorporated entity that
should be treated as an inverted domestic
corporation pursuant to the criteria of
(HSAR) 48 CFR 3009.104–70 through 3009.104–
73, but it has submitted a request for waiver
pursuant to 3009.104–74, which has not been
denied; or
lit is a foreign incorporated entity that
should be treated as an inverted domestic
corporation pursuant to the criteria of
(HSAR) 48 CFR 3009.104–70 through 3009.104–
73, but it plans to submit a request for waiver pursuant to 3009.104–74.
(g) A copy of the approved waiver, if a
waiver has already been granted, or the
waiver request, if a waiver has been applied
for, shall be attached to the bid or proposal.
(End of provision)
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25774, May 2, 2006]
3052.209–71 Reserve Officer Training
Corps and military recruiting on
campus.
As prescribed in (HSAR) 48 CFR
3009.470–4, use the following clause:
RESERVE OFFICER TRAINING CORPS AND
MILITARY RECRUITING ON CAMPUS (DEC 2003)
(a) Definitions. Institution of higher education, as used in this clause, means an institution that meets the requirements of 20
U.S.C. 1001 and includes all subelements of
such an institution.
(b) Limitation on contract award. Except
as provided in paragraph (c) of this clause,
an institution of higher education is ineligible for contract award if the Secretary of
Defense determines that the institution has
a policy or practice (regardless of when implemented) that prohibits or in effect prevents—
(1) The Secretary of a military department
from maintaining, establishing, or operating
a unit of the Senior Reserve Officer Training
Corps (ROTC) (in accordance with 10 U.S.C.
654 and other applicable Federal laws) at
that institution;
(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;
(3) The Secretary of a military department
or the Secretary of Homeland Security from
gaining entry to campuses, or access to students (who are 17 years of age or older) on
campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing, for
purposes of military recruiting, the following information pertaining to students
(who are 17 years of age or older) enrolled at
that institution:
(i) Name.
(ii) Address.
(iii) Telephone number.
(iv) Date and place of birth.
(v) Educational level.
(vi) Academic major.
(vii) Degrees received.
(viii) Most recent educational institution
enrollment.
(c) Exception. The limitation in paragraph
(b) of this clause does not apply to an institution of higher education if the Secretary of
Defense determines that—
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3052.209–72
48 CFR Ch. 30 (10–1–07 Edition)
(1) The institution has ceased the policy or
practice described in paragraph (b) of this
clause; or
(2) The institution has a long-standing policy of pacifism based on historical religious
affiliation.
(d) Agreement. The Contractor represents
that it does not now have, and agrees that
during performance of this contract it will
not adopt, any policy or practice described in
paragraph (b) of this clause, unless the Secretary of Defense has granted an exception
in accordance with paragraph (c)(2) of this
clause.
(e) Notwithstanding any other clause of
this contract, if the Secretary of Defense determines that the Contractor misrepresented
its policies and practices at the time of contract award or has violated the agreement in
paragraph (d) of this clause—
(1) The Contractor will be ineligible for
further payments under this and any other
contracts with the Department of Homeland
Security; and
(2) The Government will terminate this
contract for default for the Contractor’s material failure to comply with the terms and
conditions of award.
(End of clause)
3052.209–72 Organizational conflict of
interest.
As prescribed in (HSAR) 48 CFR
3009.507–1, insert the following provision:
yshivers on PROD1PC62 with CFR
ORGANIZATIONAL CONFLICT OF INTEREST (JUN
2006)
(a) Determination. The Government has
determined that this effort may result in an
actual or potential conflict of interest, or
may provide one or more offerors with the
potential to attain an unfair competitive advantage. The nature of the conflict of interest and the limitation on future contracting
lll[’’contracting officer shall insert description here’’].lll
(b) If any such conflict of interest is found
to exist, the Contracting Officer may (1) disqualify the offeror, or (2) determine that it is
otherwise in the best interest of the United
States to contract with the offeror and include the appropriate provisions to avoid,
neutralize, mitigate, or waive such conflict
in the contract awarded. After discussion
with the offeror, the Contracting Officer may
determine that the actual conflict cannot be
avoided, neutralized, mitigated or otherwise
resolved to the satisfaction of the Government, and the offeror may be found ineligible for award.
(c) Disclosure: The offeror hereby represents, to the best of its knowledge that:
l(1) It is not aware of any facts which create
any actual or potential organizational con-
flicts of interest relating to the award of this
contract, or
l(2) It has included information in its proposal, providing all current information
bearing on the existence of any actual or potential organizational conflicts of interest,
and has included a mitigation plan in accordance with paragraph (d) of this provision.
(d) Mitigation. If an offeror with a potential or actual conflict of interest or unfair
competitive advantage believes the conflict
can be avoided, neutralized, or mitigated,
the offeror shall submit a mitigation plan to
the Government for review. Award of a contract where an actual or potential conflict of
interest exists shall not occur before Government approval of the mitigation plan. If a
mitigation plan is approved, the restrictions
of this provision do not apply to the extent
defined in the mitigation plan.
(e) Other Relevant Information: In addition to the mitigation plan, the Contracting
Officer may require further relevant information from the offeror. The Contracting Officer will use all information submitted by
the offeror, and any other relevant information known to DHS, to determine whether an
award to the offeror may take place, and
whether the mitigation plan adequately neutralizes or mitigates the conflict.
(f) Corporation Change. The successful offeror shall inform the Contracting Officer
within thirty (30) calendar days of the effective date of any corporate mergers, acquisitions, and/or divestures that may affect this
provision.
(g) Flow-down. The contractor shall insert
the substance of this clause in each first tier
subcontract that exceeds the simplified acquisition threshold.
(End of provision)
[71 FR 25774, May 2, 2006]
3052.209–73 Limitation of future contracting.
As prescribed in (HSAR) 48 CFR
3009.507–2, the contracting officer may
insert a clause substantially as follows
in solicitations and contracts:
LIMITATION OF FUTURE CONTRACTING (JUN
2006)
(a) The Contracting Officer has determined
that this acquisition may give rise to a potential organizational conflict of interest.
Accordingly, the attention of prospective
offerors is invited to FAR Subpart 9.5—Organizational Conflicts of Interest.
(b) The nature of this conflict is [describe
the conflict].
(c) The restrictions upon future contracting are as follows:
(1) If the Contractor, under the terms of
this contract, or through the performance of
tasks pursuant to this contract, is required
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Homeland Security Department
3052.216–71
to develop specifications or statements of
work that are to be incorporated into a solicitation, the Contractor shall be ineligible to
perform the work described in that solicitation as a prime or first-tier subcontractor
under an ensuing DHS contract. This restriction shall remain in effect for a reasonable
time, as agreed to by the Contracting Officer
and the Contractor, sufficient to avoid unfair
competitive advantage or potential bias (this
time shall in no case be less than the duration of the initial production contract). DHS
shall not unilaterally require the Contractor
to prepare such specifications or statements
of work under this contract.
(2) To the extent that the work under this
contract requires access to proprietary, business confidential, or financial data of other
companies, and as long as these data remain
proprietary or confidential, the Contractor
shall protect these data from unauthorized
use and disclosure and agrees not to use
them to compete with those other companies.
(End of clause)
[71 FR 25774, May 2, 2006]
3052.211–70 Index for specifications.
As prescribed in (HSAR) 48 CFR
3011.204–70 insert the following clause:
and to enable the Contracting Officer to
evaluate the potential impact of the change
on this contract. The Contractor shall not
remove or replace personnel or facilities
until the Contracting Officer approves the
change.
The Key Personnel or Facilities under this
Contract:
(specify key personnel or facilities)
(End of clause)
3052.216–70 Evaluation of offers subject to an economic price adjustment clause.
As prescribed in (HSAR) 48 CFR
3016.203–470, insert a provision substantially the same as the following:
EVALUATION OF OFFERS SUBJECT TO AN ECONOMIC PRICE ADJUSTMENT CLAUSE (JUN
2006)
Offers shall be evaluated without adding an
amount for an economic price adjustment.
Offers may be rejected which: (1) Increase
the stipulated ceiling; (2) limit the downward adjustment; or (3) delete the economic
price adjustment clause. If the offer stipulates a ceiling lower than that included in
the solicitation, the lower ceiling will be incorporated into any resulting contract.
INDEX FOR SPECIFICATIONS (DEC 2003)
(End of provision)
If an index or table of contents is furnished
in connection with specifications, it is understood that such index or table of contents
is for convenience only. Its accuracy and
completeness is not guaranteed, and it is not
to be considered as part of the specifications.
In case of discrepancy between the index or
table of contents and the specifications, the
specifications shall govern.
3052.216–71
fee.
Determination
of
As prescribed in (HSAR) 48 CFR
3016.406(e)(1)(i), insert a clause substantially the same as the following:
DETERMINATION OF AWARD FEE (DEC 2003)
3052.215–70 Key personnel or facilities.
As prescribed in (HSAR) 48 CFR
3015.204–3, insert the following clause:
(a) The Government shall evaluate contractor performance at the end of each specified evaluation period(s) to determine the
amount of award. The contractor agrees that
the amount of award and the award fee
methodology are unilateral decisions to be
made at the sole discretion of the Government.
(b) Contractor performance shall be evaluated according to a Performance Evaluation
Plan. The contractor shall be periodically informed of the quality of its performance and
areas in which improvements are expected.
(c) The contractor shall be promptly advised, in writing, of the determination and
reasons why the award fee was or was not
earned. The contractor may submit a performance self-evaluation for each evaluation
period. The amount of award is at the sole
discretion of the Government but any self-
(a) The personnel or facilities specified
below are considered essential to the work
being performed under this contract and
may, with the consent of the contracting
parties, be changed from time to time during
the course of the contract by adding or deleting personnel or facilities, as appropriate.
(b) Before removing or replacing any of the
specified individuals or facilities, the Contractor shall notify the Contracting Officer,
in writing, before the change becomes effective. The Contractor shall submit sufficient
information to support the proposed action
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award
(End of clause)
KEY PERSONNEL OR FACILITIES. (DEC 2003)
yshivers on PROD1PC62 with CFR
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3052.216–72
48 CFR Ch. 30 (10–1–07 Edition)
evaluation received within lll (insert number) days after the end of the current evaluation period will be given such consideration,
as may be deemed appropriate by the Government.
(d) The Government may specify that a fee
not earned during a given evaluation period
may be accumulated and be available for allocation to one or more subsequent periods.
In that event, the distribution of award fee
shall be adjusted to reflect such allocations.
(End of clause)
3052.216–72 Performance
evaluation
plan.
As prescribed in (HSAR) 48 CFR
3016.406(e)(i)(ii), insert a clause substantially the same as the following:
PERFORMANCE EVALUATION PLAN (DEC 2003)
(a) A Performance Evaluation Plan shall
be unilaterally established by the Government based on the criteria stated in the contract and used for the determination of
award fee. This plan shall include the criteria used to evaluate each area and the percentage of award fee (if any) available for
each area. A copy of the plan shall be provided to the contractor lll (insert number)
calendar days prior to the start of the first
evaluation period.
(b) The criteria contained within the Performance Evaluation Plan may relate to: (1)
Technical (including schedule) requirements
if appropriate; (2) Management; and (3) Cost.
(c) The Performance Evaluation Plan may,
consistent with the contract, be revised unilaterally by the Government at any time
during the period of performance. Notification of such changes shall be provided to the
contractor lll (insert number) calendar
days prior to the start of the evaluation period to which the change will apply.
(End of clause)
3052.216–73 Distribution of award fee.
As prescribed in (HSAR) 48 CFR
3016.406(e)(1)(iii), insert a clause substantially the same as the following:
yshivers on PROD1PC62 with CFR
DISTRIBUTION OF AWARD FEE (DEC 2003)
(a) The total amount of award fee available
under this contract is assigned according to
the following evaluation periods and
amounts:
Evaluation Period:
Available Award Fee:
(insert appropriate information)
(b) Payment of the base fee and award fee
shall be made, provided that after payment
of 85 percent of the base fee and potential
award fee, the Government may withhold
further payment of the base fee and award
fee until a reserve is set aside in an amount
that the Government considers necessary to
protect its interest. This reserve shall not
exceed 15 percent of the total base fee and
potential award fee or $100,000, whichever is
less.
(c) In the event of contract termination,
either in whole or in part, the amount of
award fee available shall represent a pro rata
distribution associated with evaluation period activities or events as determined by
the Government.
(d) The Government will promptly make
payment of any award fee upon the submission by the contractor to the contracting officer’s authorized representative, of a public
voucher or invoice in the amount of the total
fee earned for the period evaluated. Payment
may be made without using a contract modification.
(End of clause)
3052.216–74 Settlement of letter contract.
As prescribed in (HSAR) 48 CFR
3016.603–4, insert a clause substantially
the same as the following:
SETTLEMENT OF LETTER CONTRACT (DEC 2003)
(a) This contract constitutes the definitive
contract contemplated by letter contract
lll (insert number) issued on lll (insert
effective date). It supersedes the letter contract and its modification numbered lll
(insert number(s)). To the extent there are inconsistencies between the definitive contract
and the letter contract, the former governs.
(b) The cost(s) and fee(s), or price(s), established in this definitive contract represents
full and complete settlement of letter contract lll (insert number) and modification
numbered lll (insert number(s)). Payment
of the fee agreed upon or profit withheld
pending definitization of the letter contract,
may start immediately at the rate and times
stated within this contract.
(End of clause)
3052.217–90 Delivery and Shifting of
Vessel (USCG).
As prescribed in the USCG guidance
at (HSAR) 48 CFR 3017.9000(a) and (b),
insert the following clause:
DELIVERY AND SHIFTING OF VESSEL (DEC 2003)
The Government shall deliver the vessel to
the Contractor at his place of business. Upon
completion of the work, the Government
shall accept delivery of the vessel at the
Contractor’s place of business. The Contractor shall provide, at no additional
charge, upon 24 hours’ advance notice, a tug
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Homeland Security Department
3052.217–92
or tugs and docking pilot, acceptable to the
Contracting Officer, to assist in handling the
vessel between (to and from) the Contractor’s plant and the nearest point in a waterway regularly navigated by vessels of equal
or greater draft and length. While the vessel
is in the hands of the Contractor, any necessary towage, cartage, or other transportation between ship and shop or elsewhere,
which may be incident to the work herein
specified, shall be furnished by the Contractor without additional charge to the
Government.
(End of clause)
3052.217–91
(End of clause)
Performance (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
PERFORMANCE (DEC 2003)
yshivers on PROD1PC62 with CFR
(1) If dock and sea trials are required, the
vessel shall be under the control of the vessel’s commander and crew.
(2) The Contractor shall not conduct dock
and sea trials not specified in the contract
without advance approval of the Contracting
Officer. Dock and sea trials not specified in
the contract shall be at the Contractor’s expense and risk.
(3) The Contractor shall provide and install
all fittings and appliances necessary for dock
and sea trials. The Contractor shall be responsible for care, installation, and removal
of instruments and apparatus furnished by
the Government for use in the trials.
(a) Upon the award of the contract, the
Contractor shall promptly start the work
specified and shall diligently prosecute the
work to completion. The Contractor shall
not start work until the contract has been
awarded except in the case of emergency
work ordered by the Contracting Officer in
writing.
(b) The Government shall deliver the vessel
described in the contract at the time and location specified in the contract. Upon completion of the work, the Government shall
accept delivery of the vessel at the time and
location specified in the contract.
(c) The Contractor shall without charge,—
(1) Make available to personnel of the vessel while in dry dock or on a marine railway,
sanitary lavatory and similar facilities at
the plant acceptable to the Contracting Officer;
(2) Supply and maintain suitable brows and
gangways from the pier, dry dock, or marine
railway to the vessel;
(3) Treat salvage, scrap or other ship’s material of the Government resulting from performance of the work as items of Government-furnished property, in accordance with
the Government Property (Fixed Price Contracts) clause;
(4) Perform, or pay the cost of, any repair,
reconditioning or replacement made necessary as the result of the use by the Contractor of any of the vessel’s machinery,
equipment or fittings, including, but not
limited to, winches, pumps, rigging, or pipe
lines; and
(5) Furnish suitable offices, office equipment and telephones at or near the site of
the work for the Government’s use.
(d) The contract will state whether dock
and sea trials are required to determine
whether or not the Contractor has satisfactorily performed the work.
3052.217–92 Inspection and manner of
doing work (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
INSPECTION AND MANNER OF DOING WORK
(DEC 2003)
(a) The Contractor shall perform work in
accordance with the contract, any drawings
and specifications made a part of the job
order, and any change or modification issued
under the Changes clause.
(b)(1) Except as provided in paragraph
(b)(2) of this clause, and unless otherwise
specifically provided in the contract, all
operational practices of the Contractor and
all workmanship, material, equipment, and
articles used in the performance of work
under this contract shall be in accordance
with the best commercial marine practices
and the rules and requirements of all appropriate regulatory bodies including, but not
limited to the American Bureau of Shipping,
the U.S. Coast Guard, and the Institute of
Electrical and Electronic Engineers, in effect
at the time of Contractor’s submission of
offer, and shall be intended and approved for
marine use.
(2) When Navy specifications are specified
in the contract, the Contractor shall follow
Navy standards of material and workmanship.
(c) The Government may inspect and test
all material and workmanship at any time
during the Contractor’s performance of the
work.
(1) If, prior to delivery, the Government
finds any material or workmanship is defective or not in accordance with the contract,
in addition to its rights under the Guarantee
clause, the Government may reject the defective or nonconforming material or workmanship and require the Contractor to correct or replace it at the Contractor’s expense.
(2) If the Contractor fails to proceed
promptly with the replacement or correction
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yshivers on PROD1PC62 with CFR
3052.217–93
48 CFR Ch. 30 (10–1–07 Edition)
of the material or workmanship, the Government may replace or correct the defective or
nonconforming material or workmanship
and charge the Contractor the excess costs
incurred.
(3) As specified in the contract, the Contractor shall provide and maintain an inspection system acceptable to the Government.
(4) The Contractor shall maintain complete records of all inspection work and shall
make them available to the Government
during performance of the contract and for
90 days after the completion of all work required.
(d) The Contractor shall not permit any
welder to work on a vessel unless the welder
is, at the time of the work, qualified to the
standards established by the U.S. Coast
Guard, American Bureau of Shipping, or Department of the Navy for the type of welding
being performed. Qualifications of a welder
shall be as specified in the contract.
(e) The Contractor shall—
(1) Exercise reasonable care to protect the
vessel from fire;
(2) Maintain a reasonable system of inspection over activities taking place in the vicinity of the vessel’s magazines, fuel oil tanks,
or storerooms containing flammable materials.
(3) Maintain a reasonable number of hose
lines ready for immediate use on the vessel
at all times while the vessel is berthed
alongside the Contractor’s pier or in dry
dock or on a marine railway;
(4) Unless otherwise provided in the contract, provide sufficient security patrols to
reasonably maintain a fire watch for protection of the vessel when it is in the Contractor’s custody;
(5) To the extent necessary, clean, wash,
and steam out or otherwise make safe, all
tanks under alteration or repair.
(6) Furnish the Contracting Officer a ‘‘gasfree’’ or ‘‘safe-for-hotwork’’ certificate before any hot work is done on a tank;
(7) Treat the contents of any tank as Government property in accordance with the
Government Property (Fixed-Price Contracts) clause; and
(8) Dispose of the contents of any tank
only at the direction, or with the concurrence, of the Contracting Officer.
(9) Be responsible for the proper closing of
all openings to the vessel’s underwater structure upon which work has been performed.
The contractor additionally must advise the
COTR of the status of all valves closures and
openings for which the contractor’s workers
were responsible.
(f) Except as otherwise provided in the contract, when the vessel is in the custody of
the Contractor or in dry dock or on a marine
railway and the temperature is expected to
go as low as 35 Fahrenheit, the Contractor
shall take all necessary steps to—
(1) Keep all hose pipe lines, fixtures, traps,
tanks, and other receptacles on the vessel
from freezing; and
(2) Protect the stern tube and propeller
hubs from frost damage.
(g) The Contractor shall, whenever practicable—
(1) Perform the required work in a manner
that will not interfere with the berthing and
messing of Government personnel attached
to the vessel; and
(2) Provide Government personnel attached
to the vessel access to the vessel at all
times.
(h) Government personnel attached to the
vessel shall not interfere with the Contractor’s work or workers.
(i)(1) The Government does not guarantee
the correctness of the dimensions, sizes, and
shapes set forth in any contract, sketches,
drawings, plans, or specifications prepared or
furnished by the Government, unless the
contract requires that the Contractor perform the work prior to any opportunity to
inspect.
(2) Except as stated in paragraph (i)(1) of
this clause, and other than those parts furnished by the Government, and the Contractor shall be responsible for the correctness of the dimensions, sizes, and shapes of
parts furnished under this agreement.
(j) The Contractor shall at all times keep
the site of the work on the vessel free from
accumulation of waste material or rubbish
caused by its employees or the work. At the
completion of the work, unless the contract
specifies otherwise, the Contractor shall remove all rubbish from the site of the work
and leave the immediate vicinity of the work
area ‘‘broom clean.’’
(End of clause)
3052.217–93 Subcontracts (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
SUBCONTRACTS (DEC 2003)
(a) Nothing contained in the contract shall
be construed as creating any contractual relationship between any subcontractor and
the Government. The divisions or sections of
the specifications are not intended to control
the Contractor in dividing the work among
subcontractors or to limit the work performed by any trade.
(b) The Contractor shall be responsible to
the Government for acts and omissions of its
own employees, and of subcontractors and
their employees. The Contractor shall also
be responsible for the coordination of the
work of the trades, subcontractors, and material men.
(c) The Contractor shall, without additional expense to the Government, employ
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Homeland Security Department
3052.217–95
specialty subcontractors where required by
the specifications.
(d) The Government or its representatives
will not undertake to settle any differences
between the Contractor and its subcontractors, or between subcontractors.
(End of clause)
3052.217–94
Lay days (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
LAY DAYS (DEC 2003)
(a) Lay day time will be paid by the Government at the Contractor’s stipulated bid
price for this item of the contract when the
vessel remains on the dry dock or marine
railway as a result of any change that involves work in addition to that required
under the basic contract.
(b) No lay day time shall be paid until all
items of the basic contract for which a price
was established by the Contractor and for
which docking of the vessel was required
have been satisfactorily completed and accepted.
(c) Days of hauling out and floating, whatever the hour, shall not be paid as lay day
time, and days when no work is performed by
the Contractor shall not be paid as lay day
time.
(d) Payment of lay day time shall constitute complete compensation for all costs,
direct and indirect, to reimburse the Contractor for use of dry dock or marine railway.
(End of clause)
3052.217–95 Liability
(USCG).
and
insurance
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
yshivers on PROD1PC62 with CFR
LIABILITY AND INSURANCE (DEC 2003)
(a) The Contractor shall exercise its best
efforts to prevent accidents, injury, or damage to all employees, persons, and property,
in and about the work, and to the vessel or
part of the vessel upon which work is done.
(b) Loss or damage to the vessel, materials,
or equipment. (1) Unless otherwise directed
or approved in writing by the Contracting
Officer, the Contractor shall not carry insurance against any form of loss or damage to
the vessel(s) or to the materials or equipment to which the Government has title or
which have been furnished by the Government for installation by the Contractor. The
Government assumes the risks of loss of and
damage to that property.
(2) The Government does not assume any
risk with respect to loss or damage compensated for by insurance or otherwise or resulting from risks with respect to which the
Contractor has failed to maintain insurance,
if available, as required or approved by the
Contracting Officer.
(3) The Government does not assume risk
of and will not pay for any costs of the following:
(i) Inspection, repair, replacement, or renewal of any defects in the vessel(s) or material and equipment due to—
(A) Defective workmanship performed by
the Contractor or its subcontractors;
(B) Defective materials or equipment furnished by the Contractor or its subcontractors; or
(C) Workmanship, materials, or equipment
which do not conform to the requirements of
the contract, whether or not the defect is latent or whether or not the nonconformance
is the result of negligence.
(ii) Loss, damage, liability, or expense
caused by, resulting from, or incurred as a
consequence of any delay or disruption, willful misconduct or lack of good faith by the
Contractor or any of its representatives that
have supervision or direction of—
(A) All or substantially all of the Contractor’s business; or
(B) All or substantially all of the Contractor’s operation at any one plant.
(4) As to any risk that is assumed by the
Government, the Government shall be subrogated to any claim, demand or cause of action against third parties that exists in favor
of the Contractor. If required by the Contracting Officer, the Contractor shall execute a formal assignment or transfer of the
claim, demand, or cause of action.
(5) No party other than the Contractor
shall have any right to proceed directly
against the Government or join the Government as a codefendant in any action.
(6) Notwithstanding the foregoing, the
Contractor shall bear the first $5,000 of loss
or damage from each occurrence or incident,
the risk of which the Government would
have assumed under the provision of this
paragraph (b).
(c) Indemnification. The Contractor indemnifies the Government and the vessel and its
owners against all claims, demands, or
causes of action to which the Government,
the vessel or its owner(s) might be subject as
a result of damage or injury (including
death) to the property or person of anyone
other than the Government or its employees,
or the vessel or its owner, arising in whole or
in part from the negligence or other wrongful act of the Contractor, or its agents or
employees, or any subcontractor, or its
agents or employees.
(1) The Contractor’s obligation to indemnify under this paragraph shall not exceed
the sum of $300,000 as a consequence of any
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yshivers on PROD1PC62 with CFR
3052.217–96
48 CFR Ch. 30 (10–1–07 Edition)
single occurrence with respect to any one
vessel.
(2) The indemnity includes, without limitation, suits, actions, claims, costs, or demands of any kind, resulting from death,
personal injury, or property damage occurring during the period of performance of
work on the vessel or within 90 days after redelivery of the vessel. For any claim, etc.,
made after 90 days, the rights of the parties
shall be as determined by other provisions of
this contract and by law. The indemnity
does apply to death occurring after 90 days
where the injury was received during the period covered by the indemnity.
(d) Insurance. (1) The Contractor shall, at
its own expense, obtain and maintain the following insurance—
(i) Casualty, accident, and liability insurance, as approved by the Contracting Officer,
insuring the performance of its obligations
under paragraph (c) of this clause.
(ii) Workers Compensation Insurance (or
its equivalent) covering the employees engaged on the work.
(2) The Contractor shall ensure that all
subcontractors engaged on the work obtain
and maintain the insurance required in paragraph (d)(1) of this clause.
(3) Upon request of the Contracting Officer,
the Contractor shall provide evidence of the
insurance required by paragraph (d) of this
clause.
(e) The Contractor shall not make any allowance in the contract price for the inclusion of any premium expense or charge for
any reserve made on account of self-insurance for coverage against any risk assumed
by the Government under this clause.
(f) The Contractor shall give the Contracting Officer written notice as soon as
practicable after the occurrence of a loss or
damage for which the Government has assumed the risk.
(1) The notice shall contain full details of
the loss or damage.
(2) If a claim or suit is later filed against
the Contractor as a result of the event, the
Contractor shall immediately deliver to the
Government every demand, notice, summons, or other process received by the Contractor or its employees or representatives.
(3) The Contractor shall cooperate with the
Government and, upon request, shall assist
in effecting settlements, securing and giving
evidence, obtaining the attendance of witnesses, and in the conduct of suits. The Government shall reimburse the Contractor for
expenses incurred in this effort, other than
the cost of maintaining the Contractor’s
usual organization.
(4) The Contractor shall not, except at its
own expense, voluntarily make any payments, assume any obligation, or incur any
expense other than what would be imperative for the protection of the vessel(s) at the
time of the event.
(g) In the event of loss of or damage to any
vessel(s), material, or equipment which may
result in a claim against the Government
under the insurance provisions of this contract, the Contractor shall promptly notify
the Contracting Officer of the loss or damage. The Contracting Officer may, without
prejudice to any right of the Government, either—
(1) Order the Contractor to proceed with
replacement or repair, in which event the
Contractor shall effect the replacement or
repair;
(i) The Contractor shall submit to the Contracting Officer a request for reimbursement
of the cost of the replacement or repair together with whatever supporting documentation the Contracting Officer may reasonably
require, and shall identify the request as
being submitted under the Insurance clause
of this contract.
(ii) If the Government determines that the
risk of the loss or damage is within the scope
of the risks assumed by the Government
under this clause, the Government will reimburse the Contractor for the reasonable allowable cost of the replacement or repair,
plus a reasonable profit (if the work or replacement or repair was performed by the
Contractor) less the deductible amount specified in paragraph (b) of this clause.
(iii) Payments by the Government to the
Contractor under this clause are outside the
scope of and shall not affect the pricing
structure of the contract, and are additional
to the compensation otherwise payable to
the Contractor under this contract; or
(2) Decide that the loss or damage shall not
be replaced or repaired and in that event, the
Contracting Officer shall—
(i) Modify the contract appropriately, consistent with the reduced requirements reflected by the unreplaced or unrepaired loss
or damage; or
(ii) Terminate the repair of any part or all
of the vessel(s) under the Termination for
Convenience of the Government clause of
this contract.
(End of clause)
3052.217–96
Title (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
TITLE (DEC 2003)
(a) Unless otherwise provided, title to all
materials and equipment to be incorporated
in a vessel in the performance of this contract shall vest in the Government upon delivery at the location specified for the performance of the work.
(b) Upon completion of the contract, or
with the approval of the Contracting Officer
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Homeland Security Department
3052.217–100
during performance of the contract, all Contractor-furnished materials and equipment
not incorporated in, or placed on, any vessel,
shall become the property of the Contractor,
unless the Government has reimbursed the
Contractor for the cost of the materials and
equipments.
(c) The vessel, its equipment, movable
stores, cargo, or other ship’s materials shall
not be considered Government-furnished
property.
(End of clause)
3052.217–97
DISCHARGE OF LIENS (DEC 2003)
(a) The Contractor shall immediately discharge or cause to be discharged, any lien or
right in rem of any kind, other than in favor
of the Government, that exists or arises in
connection with work done or materials furnished under this contract.
(b) If any such lien or right in rem is not
immediately discharged, the Government, at
the expense of the Contractor, may discharge, or cause to be discharged, the lien or
right.
(End of clause)
Delays (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
DELAYS (DEC 2003)
When during the performance of this contract the Contractor is required to delay
work on a vessel temporarily, due to orders
or actions of the Government respecting
stoppage of work to permit shifting the vessel, stoppage of hot work to permit bunkering, stoppage of work due to embarking
or debarking passengers and loading or discharging cargo, and the Contractor is not
given sufficient advance notice or is otherwise unable to avoid incurring additional
costs on account thereof, an equitable adjustment shall be made in the price of the
contract pursuant to the ‘‘Changes’’ clause.
(End of clause)
3052.217–99 Department of Labor safety and health regulations for ship
repairing (USCG).
yshivers on PROD1PC62 with CFR
Nothing contained in this contract shall
relieve the Contractor of any obligations it
may have to comply with—
(a) The Occupational Safety and Health
Act of 1970 (29 U.S.C. 651, et seq.);
(b) The Safety and Health Regulations for
Ship Repairing (29 CFR part 1915); or
(c) Any other applicable Federal, State,
and local laws, codes, ordinances, and regulations.
(End of clause)
Discharge of liens (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
3052.217–98
DEPARTMENT OF LABOR SAFETY AND HEALTH
REGULATIONS FOR SHIP REPAIR (DEC 2003)
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(a) and (b), insert the following clause:
3052.217–100 Guarantee (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3017.9000(c), insert the
following clause:
GUARANTEE (USCG) (JUN 2006)
(a) In the event any work performed or materials furnished by the contractor prove defective or deficient within 60 days from the
date of redelivery of the vessel(s), the Contractor, as directed by the Contracting Officer and at its own expense, shall correct and
repair the deficiency to the satisfaction of
the Contracting Officer.
(b) If the Contractor or any subcontractor
has a guarantee for work performed or materials furnished that exceeds the 60 day period, the Government shall be entitled to
rely upon the longer guarantee until its expiration.
(c) With respect to any individual work
item identified as incomplete at the time of
redelivery of the vessel(s), the guarantee period shall run from the date the item is completed.
(d) If practicable, the Government shall
give the Contractor an opportunity to correct the deficiency.
(1) If the Contracting Officer determines it
is not practicable or is otherwise not advisable to return the vessel(s) to the Contractor, or the Contractor fails to proceed
with the repairs promptly, the Contracting
Officer may direct that the repairs be performed elsewhere, at the Contractor’s expense.
(2) If correction and repairs are performed
by other than the Contractor, the Contracting Officer may discharge the Contractor’s liability by making an equitable deduction in the price of the contract.
(e) The Contractor’s liability shall extend
for an additional 60-day guarantee period on
those defects or deficiencies that the Contractor corrected.
(f) At the option of the Contracting officer,
defects and deficiencies may be left uncorrected. In that event, the Contractor and
Contracting Officer shall negotiate an equitable reduction in the contract price. Failure
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3052.219–70
48 CFR Ch. 30 (10–1–07 Edition)
to agree upon an equitable reduction shall
constitute a dispute under the Disputes
clause of this contract.
(End of clause)
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25775, May 2, 2006]
3052.219–70 Small Business subcontracting program reporting.
As prescribed in (HSAR) 48 CFR
3019.708–70(a), insert the following
clause:
SMALL BUSINESS SUBCONTRACTING PLAN
REPORTING (JUN 2006)
(a) The Contractor shall enter the information for the Subcontracting Report for Individual Contracts (formally the Standard
Form 294 (SF 294)) and the Summary Subcontract Report (formally the Standard
Form 295 (SF–295)) into the Electronic Subcontracting Reporting System (eSRS) at
http://www.esrs.gov.
(b) The Contractor shall include this clause
in all subcontracts that include the clause at
(FAR) 48 CFR 52.219–9.
(End of clause)
and successfully perform DHS contracts and
subcontracts.
(d) Large business prime contractors serving as mentors in the DHS Mentor-Prote´ge´
program are eligible for a post-award incentive for subcontracting plan credit. The mentor may receive credit for costs it incurs to
provide assistance to a prote´ge´ firm. The
mentor may use this additional credit towards attaining its subcontracting plan participation goal under the same or another
DHS contract. The amount of credit given to
a mentor firm for these prote´ge´ developmental assistance costs shall be calculated
on a dollar for dollar basis and reported in
the Summary Subcontract Report via the
Electronic Subcontracting Reporting System (eSRS) at http://www.esrs.gov. For example, a mentor/large business prime contractor would report a $10,000 subcontract to
the prote´ge´/small business subcontractor and
$5,000 of developmental assistance to the
prote´ge´/small business subcontractor as
$15,000. The Mentor and Prote´ge´ will submit
a signed joint statement agreeing on the dollar value of the developmental assistance
and the Summary Subcontract Report.
(e) Contractors interested in participating
in the program are encouraged to contact
the DHS OSDBU for more information.
(End of clause)
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25775, May 2, 2006]
3052.219–71
gram.
DHS mentor-prote´ge´ pro-
As prescribed in (HSAR) 48 CFR
3019.708–70(b), insert the following
clause:
yshivers on PROD1PC62 with CFR
DHS MENTOR-PROTE´ GE´ PROGRAM (JUN 2006)
(a) Large businesses are encouraged to participate in the DHS Mentor-Prote´ge´ program
for the purpose of providing developmental
assistance to eligible small business prote´ge´
entities to enhance their capabilities and increase their participation in DHS contracts.
(b) The program consists of:
(1) Mentor firms, which are large prime
contractors capable of providing developmental assistance;
(2) Prote´ge´ firms, which are small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses,
HUBZone small businesses, small disadvantaged businesses, and women-owned small
business concerns; and
(3) Mentor-Prote´ge´ agreements, approved
by the DHS OSDBU.
(c) Mentor participation in the program
means providing business developmental assistance to aid Prote´ge´s in developing the
requisite expertise to effectively compete for
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25775, May 2, 2006]
3052.219–72 Evaluation of prime contractor participation in the DHS
mentor-prote´ge´ program.
As prescribed in (HSAR) 48 CFR
3019.708–70(c), insert the following provision:
EVALUATION OF PRIME CONTRACTOR PARTICI´ GE´ PROPATION IN THE DHS MENTOR-PROTE
GRAM (JUN 2006)
This solicitation contains a source selection factor or subfactor regarding participation in the DHS Mentor-Prote´ge´ Program. In
order to receive credit under the source selection factor or subfactor, the offeror shall
provide a signed letter of mentor-prote´ge´
agreement approval from the DHS Office of
Small Business and Disadvantaged Business
Utilization (OSDBU) before initial evaluation of proposals. The contracting officer
may, in his or her discretion, give credit for
approvals that occur after initial evaluation
of proposals, but before final evaluation.
(End of provision)
[71 FR 25775, May 2, 2006]
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Homeland Security Department
3052.223–90
3052.222–70 Strikes or picketing affecting timely completion of the contract work.
As prescribed in (HSAR) 48 CFR
3022.101–71(a), insert the following
clause:
STRIKES OR PICKETING AFFECTING TIMELY
COMPLETION OF THE CONTRACT WORK (DEC
2003)
Notwithstanding any other provision hereof, the Contractor is responsible for delays
arising out of labor disputes, including but
not limited to strikes, if such strikes are
reasonably avoidable. A delay caused by a
strike or by picketing which constitutes an
unfair labor practice is not excusable unless
the Contractor takes all reasonable and appropriate action to end such a strike or picketing, such as the filing of a charge with the
National Labor Relations Board, the use of
other available Government procedures, and
the use of private boards or organizations for
the settlement of disputes.
(End of clause)
3052.222–71 Strikes or picketing affecting access to a DHS facility.
As prescribed in (HSAR) 48 CFR
3022.101–71(b), insert the following
clause:
STRIKES OR PICKETING AFFECTING ACCESS TO
A DHS FACILITY (DEC 2003)
If the Contracting Officer notifies the Contractor in writing that a strike or picketing:
(a) is directed at the Contractor or subcontractor or any employee of either; and (b)
impedes or threatens to impede access by
any person to a DHS facility where the site
of the work is located, the Contractor shall
take all appropriate action to end such
strike or picketing, including, if necessary,
the filing of a charge of unfair labor practice
with the National Labor Relations Board or
the use of other available judicial or administrative remedies.
possess or would be able to acquire promptly,
the necessary skills.
(b) Local resident defined. As used in this
section, ‘‘local resident’’ means a resident of,
or an individual who commutes daily to, a
State described in subsection (a).
(c) The Secretary of Homeland Security
may waive the requirements of paragraph (a)
the interest of national security or economic
efficiency.
(End of clause)
[71 FR 25775, May 2, 2006]
3052.223–70 Removal or disposal of
hazardous substances—applicable
licenses and permits.
As prescribed in (HSAR) 48 CFR
3023.303, insert the following clause:
REMOVAL OR DISPOSAL OF HAZARDOUS SUBSTANCES—APPLICABLE LICENSES AND PERMITS (JUN 2006)
The Contractor shall have all licenses and
permits required by Federal, state, and local
laws to perform hazardous substance(s) removal or disposal services. If the Contractor
does not currently possess these documents,
it shall obtain all requisite licenses and permits within l[‘‘insert days’’]l days after
date of award. The Contractor shall provide
evidence of said documents to the Contracting Officer or designated Government
representative prior to commencement of
work under the contract.
(End of clause)
[71 FR 25775, May 2, 2006]
3052.223–90 Accident and fire reporting (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3023.9000(a), insert the
following clause:
ACCIDENT AND FIRE REPORTING (DEC 2003)
(End of clause)
3052.222–90 Local hire (USCG).
As prescribed in (HSAR) 48 CFR
3022.9001, insert the following clause:
yshivers on PROD1PC62 with CFR
LOCAL HIRE (USCG) (JUN 2006)
(a) When performing a contract in whole or
in part in a State with an unemployment
rate in excess of the national average determined by the Secretary of Labor, the Contractor shall employ, for the purpose of performing the portion of the contract in that
State, individuals who are local residents
and who, in the case of any craft or trade,
(a) The Contractor shall report to the Contracting Officer any accident or fire occurring at the site of the work that causes:
(1) A fatality or the loss of at least one lost
workday on the part of any employee of the
Contractor or subcontractor at any tier;
(2) Damage of $1,000 or more to Federal
real or personal property; either real or personal;
(3) Damage of $1,000 or more to Contractor
or subcontractor owned or leased motor vehicles or mobile equipment; or
(4) Damage for which a contract time extension may be requested.
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3052.228–70
48 CFR Ch. 30 (10–1–07 Edition)
(b) Accident and fire reports required by
paragraph (a) above shall be accomplished by
the following means:
(1) Accidents or fires resulting in a death,
hospitalization of five or more persons, or
destruction of Federal real or personal property, the total value of which is estimated at
$100,000 or more, shall be reported immediately by telephone to the Contracting Officer or his/her authorized representative and
shall be confirmed by telegram, facsimile or
e-mail transmission within 24 hours to the
Contracting Officer. Such telegram or facsimile transmission shall state all known
facts as to extent of injury and damage and
as to cause of the accident or fire.
(2) Other accident and fire reports required
by paragraph (a) above may be reported by
the Contractor using a state, private insurance carrier, or Contractor accident report
form which provides for the statement of:
(i) The extent of injury; and
(ii) The damage and cause of the accident
or fire.
Such report shall be mailed or otherwise
delivered to the Contracting Officer within
48 hours of the occurrence of the accident or
fire.
(c) The Contractor shall assure compliance
by subcontractors at all tiers with the requirements of this clause.
(End of clause)
3052.228–70
Insurance.
As prescribed in (HSAR) 48 CFR
3028.310–70 and 3028.311–1, insert a
clause substantially the same as follows. The contracting officer may
specify additional kinds (e.g., aircraft
public and passenger liability, vessel liability) or increased amounts of insurance.
yshivers on PROD1PC62 with CFR
INSURANCE (DEC 2003)
In accordance with the clause entitled
‘‘Insurance—Work on a Government Installation’’ [or Insurance—Liability to Third Persons] in Section I, insurance of the following
kinds and minimum amounts shall be provided and maintained during the period of
performance of this contract:
(a) Worker’s compensation and employer’s
liability. The contractor shall, as a minimum, meet the requirements specified at
(FAR) 48 CFR 28.307–2(a).
(b) General liability. The contractor shall,
as a minimum, meet the requirements specified at (FAR) 48 CFR 28.307–2(b).
(c) Automobile liability. The contractor
shall, as a minimum, meet the requirements
specified at (FAR) 48 CFR 28.307–2(c).
(End of clause)
3052.228–90 Notification of Miller Act
payment bond protection (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3028.106–490, insert the
following clause:
NOTIFICATION OF MILLER ACT PAYMENT BOND
PROTECTION (DEC 2003)
This notice clause shall be inserted by first
tier subcontractors in all their subcontracts
and shall contain information pertaining to
the surety that provided the payment bond
under the prime contract.
(a) The prime contract is subject to the
Miller Act (40 U.S.C. 270), under which the
prime contractor has obtained a payment
bond. This payment bond may provide certain unpaid employees, suppliers, and subcontractors a right to sue the bonding surety
under the Miller Act for amounts owned for
work performed and materials delivery
under the prime contract.
(b) Persons believing that they have legal
remedies under the Miller Act should consult
their legal advisor regarding the proper steps
to take to obtain these remedies. This notice
clause does not provide any party any rights
against the Federal Government, or create
any relationship, contractual or otherwise,
between the Federal Government and any
private party.
(c) The surety which has provided the payment bond under the prime contract is:
llllllllllllllllllllllll
(Name)
llllllllllllllllllllllll
(Street Address)
llllllllllllllllllllllll
(City, State, Zip Code)
llllllllllllllllllllllll
(Contact & Tel. No.)
llllllllllllllllllllllll
(End of clause)
3052.228–91 Loss of or damage to
leased aircraft (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3028.306–90(a) and (b),
insert the following clause:
LOSS OF OR DAMAGE TO LEASED AIRCRAFT
(DEC 2003)
(a) The Government assumes all risk of
loss of, or damage (except normal wear and
tear) to, the leased aircraft during the term
of this lease while the aircraft is in the possession of the Government.
(b) In the event of damage to the aircraft,
the Government, at its option, shall make
the necessary repairs with its own facilities
or by contract, or pay the Contractor the
reasonable cost of repair of the aircraft.
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Homeland Security Department
3052.235–70
(c) In the event the aircraft is lost or damaged beyond repair, the Government shall
pay the Contractor a sum equal to the fair
market value of the aircraft at the time of
such loss or damage, which value may be
specifically agreed to in clause 3052.228–92,
‘‘Fair Market Value of Aircraft,’’ less the
salvage value of the aircraft. However, the
Government may retain the damaged aircraft or dispose of it as it wishes. In that
event, the Contractor will be paid the fair
market value of the aircraft as stated in the
clause.
(d) The Contractor agrees that the contract price does not include any cost attributable to hull insurance or to any reserve
fund it has established to protect its interest
in the aircraft. If, in the event of loss or
damage to the leased aircraft, the Contractor receives compensation for such loss
or damage in any form from any source, the
amount of such compensation shall be:
(1) Credited to the Government in determining the amount of the Government’s liability; or
(2) For an increment of value of the aircraft beyond the value for which the Government is responsible.
(e) In the event of loss of or damage to the
aircraft, the Government shall be subrogated
to all rights of recovery by the Contractor
against third parties for such loss or damage
and the Contractor shall promptly assign
such rights in writing to the Government.
(End of clause)
3052.228–92 Fair market value of aircraft (USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3028.306–90(a) and (c),
insert the following clause:
FAIR MARKET VALUE OF AIRCRAFT (DEC 2003)
For purposes of the clause entitled ‘‘Loss
of or Damage to Leased Aircraft,’’ the fair
market value of the aircraft to be used in the
performance of this contract shall be the
lesser of the two values set out in paragraphs
(a) and (b) below:
(a) $lll; or
(b) If the contractor has insured the same
aircraft against loss or destruction in connection with other operations, the amount of
such insurance coverage on the date of the
loss or damage for which the Government
may be responsible under this contract.
yshivers on PROD1PC62 with CFR
(End of clause)
3052.228–93 Risk
and
indemnities
(USCG).
As prescribed in USCG guidance at
(HSAR) 48 CFR 3028.306–90(a) and (d),
insert the following clause:
RISK AND INDEMNITIES (DEC 2003)
The Contractor hereby agrees to indemnify
and hold harmless the Government, its officers and employees from and against all
claims, demands, damages, liabilities, losses,
suits and judgments (including all costs and
expenses incident thereto) which may be suffered by, accrue against, be charged to or recoverable from the Government, its officers
and employees by reason of injury to or
death of any person other than officers,
agents, or employees of the Government or
by reason of damage to property of others of
whatsoever kind (other than the property of
the Government, its officers, agents or employees) arising out of the operation of the
aircraft. In the event the Contractor holds or
obtains insurance in support of this covenant, evidence of insurance shall be delivered to the Contracting Officer.
(End of clause)
3052.231–70
Precontract costs.
As prescribed in (HSAR) 48 CFR
3031.205–32, insert the following clause:
PRECONTRACT COSTS (DEC 2003)
The Contractor shall be entitled to reimbursement for pre-contract costs incurred on
or after lll in an amount not to exceed
$lll that, if incurred after this contract
had been entered into, would have been reimbursable under this contract.
(End of clause)
3052.235–70 Dissemination of information—educational institutions.
As prescribed in (HSAR) 48 CFR
3035.7000, insert the following clause:
DISSEMINATION OF INFORMATION—
EDUCATIONAL INSTITUTIONS (DEC 2003)
(a) The Department of Homeland Security
(DHS) desires widespread dissemination of
the results of funded non-sensitive research.
The Contractor, therefore, may publish (subject to the provisions of the ‘‘Data Rights’’
and ‘‘Patent Rights’’ clauses of the contract)
research results in professional journals,
books, trade publications, or other appropriate media (a thesis or collection of theses
should not be used to distribute results because dissemination will not be sufficiently
widespread). All costs of publication pursuant to this clause shall be borne by the Contractor and shall not be charged to the Government under this or any other Federal
contract.
(b) Any copy of material published under
this clause shall contain acknowledgment of
DHS’s sponsorship of the research effort and
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3052.236–70
48 CFR Ch. 30 (10–1–07 Edition)
a disclaimer stating that the published material represents the position of the author(s) and not necessarily that of DHS. Articles for publication or papers to be presented to professional societies do not require the authorization of the Contracting
Officer prior to release. However, a printed
or electronic copy of each article shall be
transmitted to the Contracting Officer at
least two weeks prior to release or publication.
(c) Publication under the terms of this
clause does not release the Contractor from
the obligation of preparing and submitting
to the Contracting Officer a final report containing the findings and results of research,
as set forth in the schedule of the contract.
(End of clause)
[68 FR 67871, Dec. 4, 2003. Redesignated and
amended at 71 FR 25775, May 2, 2006]
3052.236–70 Special precautions for
work at operating airports.
As prescribed in (HSAR) 48 CFR
3036.570, insert the following clause:
yshivers on PROD1PC62 with CFR
SPECIAL PRECAUTIONS FOR WORK AT
OPERATING AIRPORTS (DEC 2003)
(a) When work is to be performed at an operating airport, the Contractor must arrange
its work schedule so as not to interfere with
flight operations. Such operations will take
precedence over construction convenience.
Any operations of the Contractor which
would otherwise interfere with or endanger
the operations of aircraft shall be performed
only at times and in the manner directed by
the Contracting Officer. The Government
will make every effort to reduce the disruption of the Contractor’s operation.
(b) Unless otherwise specified by local regulations, all areas in which construction operations are underway shall be marked by
yellow flags during daylight hours and by
red lights at other times. The red lights
along the edge of the construction areas
within the existing aprons shall be the electric type of not less than 100 watts intensity
placed and supported as required. All other
construction markings on roads and adjacent
parking lots may be either electric or battery type lights. These lights and flags shall
be placed so as to outline the construction
areas and the distance between any two flags
or lights shall not be greater than 25 feet.
The Contractor shall provide adequate watch
to maintain the lights in working condition
at all times other than daylight hours. The
hour of beginning and the hour of ending of
daylight will be determined by the Contracting Officer.
(c) All equipment and material in the construction areas or when moved outside the
construction area shall be marked with air-
port safety flags during the day and when directed by the Contracting Officer, with red
obstruction lights at nights. All equipment
operating on the apron, taxiway, runway,
and intermediate areas after darkness hours
shall have clearance lights in conformance
with instructions from the Contracting Officer. No construction equipment shall operate
within 50 feet of aircraft undergoing fuel operations. Open flames are not allowed on the
ramp except at times authorized by the Contracting Officer.
(d) Trucks and other motorized equipment
entering the airport or construction area
shall do so only over routes determined by
the Contracting Officer. Use of runways,
aprons, taxiways, or parking areas as truck
or equipment routes will not be permitted
unless specifically authorized for such use.
Flag personnel shall be furnished by the Contractor at points on apron and taxiway for
safe guidance of its equipment over these
areas to assure right of way to aircraft.
Areas and routes used during the contract
must be returned to their original condition
by the Contractor. Airport management
shall establish the maximum speed allowed
at the airport. Vehicles shall be operated so
as to be under safe control at all times,
weather and traffic conditions considered.
Vehicles must be equipped with head and
taillights during the hours of darkness.
(End of clause)
3052.242–70
[Reserved]
3052.242–71 Dissemination of contract
information.
As prescribed in (HSAR) 48 CFR
3042.202–70, insert the following clause:
DISSEMINATION OF CONTRACT INFORMATION
(DEC 2003)
The Contractor shall not publish, permit
to be published, or distribute for public consumption, any information, oral or written,
concerning the results or conclusions made
pursuant to the performance of this contract, without the prior written consent of
the Contracting Officer. An electronic or
printed copy of any material proposed to be
published or distributed shall be submitted
to the Contracting Officer.
(End of clause)
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25776, May 2, 2006]
3052.242–72 Contracting officer’s technical representative.
As prescribed in (HSAR) 48 CFR
3042.7000, insert the following clause:
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Homeland Security Department
Pt. 3053
CONTRACTING OFFICER’S TECHNICAL
REPRESENTATIVE (DEC 2003)
(d) The quantity of supplies to be shipped
from each shipping point.
(a) The Contracting Officer may designate
Government personnel to act as the Contracting Officer’s Technical Representative
(COTR) to perform functions under the contract such as review or inspection and acceptance of supplies, services, including construction, and other functions of a technical
nature. The Contracting Officer will provide
a written notice of such designation to the
Contractor within five working days after
contract award or for construction, not less
than five working days prior to giving the
contractor the notice to proceed. The designation letter will set forth the authorities
and limitations of the COTR under the contract.
(b) The Contracting Officer cannot authorize the COTR or any other representative to
sign documents, such as contracts, contract
modifications, etc., that require the signature of the Contracting Officer.
(End of clause)
3052.245–70 Government property reports.
As prescribed in (HSAR) 48 CFR
3045.505–70, insert the following clause:
GOVERNMENT PROPERTY REPORTS (JUN 2006)
(End of provision)
Alternate I (DEC 2003)
If delivery is ‘‘f.o.b. origin, contractor’s facility,’’ and the designated facility is not covered by the line-haul
transportation rate, add the following
paragraph to the basic provision:
(e) The charges required to deliver
the shipment to the point where the
line-haul rate is applicable.
Alternate II (DEC 2003)
When delivery is ‘‘f.o.b. origin,
freight allowed,’’ add the following
paragraph to the basic provision:
(e) The basis on which transportation
charges will be allowed, including the
origin and destination from and to
which transportation charges will be
allowed.
3052.247–71
F.o.b. origin only.
As prescribed in (HSAR) 48 CFR
3047.305–70(b), insert the following provision:
(a) The Contractor shall prepare an annual
report of Government property in its possession and the possession of its subcontractors.
(b) The report shall be submitted to the
Contracting Officer not later than September 15 of each calendar year on DHS
Form 0700–5, Contractor Report of Government Property.
Offers are invited on the basis of f.o.b. origin only. Offers submitted on any other basis
will be rejected as nonresponsive.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25776, May 2, 2006]
3052.247–72
(End of clause)
3052.247–70 F.o.b. origin information.
As prescribed in (HSAR) 48 CFR
3047.305–70(a), insert the following provision:
F.O.B. ORIGIN ONLY (DEC 2003)
(End of provision)
F.o.b. destination only.
As prescribed in (HSAR) 48 CFR
3047.305–70(c), insert the following provision:
F.O.B. DESTINATION ONLY (DEC 2003)
Offers are invited on the basis of f.o.b. destination only. Offers submitted on any other
basis will be rejected as nonresponsive.
yshivers on PROD1PC62 with CFR
F.O.B. ORIGIN INFORMATION (DEC 2003)
The offeror shall furnish information with
the offer:
(a) Location of the offeror’s actual shipping point(s) (street address, city, state, and
zip code) from which supplies will be delivered to the Government;
(b) Whether the offered shipping point has
a private railroad siding, and the name of
the rail carrier serving it;
(c) When the offered shipping point does
not have a private siding, the names and addresses of the nearest public rail siding and
of the carrier serving it; and
PART 3053—FORMS
Subpart 3053.1—General
Sec.
3053.101
3053.103
Requirements for use of forms.
Exceptions.
Subpart 3053.2—Prescription of Forms
3053.204–70 Administrative matters.
3053.222–70 Application of labor laws to Government acquisitions.
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3053.101
48 CFR Ch. 30 (10–1–07 Edition)
3053.227–70 Conveyance of invention rights
acquired by the Government.
3053.245–70 Contractor report of government
property.
Subpart 3053.3—Illustrations of Forms
3053.303
Agency forms.
AUTHORITY: 41 U.S.C. 418b (a) and (b).
SOURCE: 68 FR 67871, Dec. 4, 2003, unless
otherwise note.
Subpart 3053.1—General
3053.101 Requirements for use
forms.
Unless excepted, forms prescribed
(FAR) 48 CFR part 53 and (HSAR)
CFR part 3053 are required for use
all Components.
of
in
48
by
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 48802, Aug. 22, 2006]
3053.103 Exceptions.
Requests for exceptions to forms contained in (FAR) 48 CFR part 53 and to
DHS forms in (HSAR) 48 CFR part 3053
shall be submitted, as prescribed in
(FAR) 48 CFR 53.103, to the CPO.
Subpart 3053.2—Prescription of
Forms
3053.204–70 Administrative matters.
The following forms are prescribed
for use in the closeout of applicable
contracts, as specified in (HSAR) 48
CFR 3004.804–570:
(a) DHS Form 0700–01, Cumulative
Claim and Reconciliation Statement.
(See (HSAR) 48 CFR 3004.804–570(a)(1).)
(b) DHS Form 0700–02, Contractor’s
Assignment of Refunds, Rebates, Credits and Other Amounts. (See (HSAR) 48
CFR 3004.570(a)(2).)
(c) DHS Form 0700–03, Contractor Release. (See (HSAR) 48 CFR 3004.804–
570(a)(3).)
3053.222–70 Application of labor laws
to Government acquisitions.
The following form is prescribed for
use in connection with the application
of labor laws, as specified in (HSAR) 48
CFR 3022.406–9: DHS Form 0700–04, Employee’s Claim for Wage Restitution.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25776, May 2, 2006]
3053.227–70 Conveyance of invention
rights acquired by the Government.
The following form is prescribed for
including a means for contractors to
report inventions made in the course of
contract performance, as specified in
(HSAR) 48 CFR 3027.305–4: DD Form 882,
Report of Inventions and Subcontracts.
3053.245–70 Report of Government
property.
The following form is prescribed for
use by contractors to report Government property, as specified in (HSAR)
48 CFR 3045.505–14: DHS Form 0700–05,
Contractor’s Report of Government
Property.
[68 FR 67871, Dec. 4, 2003, as amended at 71
FR 25776, May 2, 2006]
Subpart 3053.3—Illustrations of
Forms
yshivers on PROD1PC62 with CFR
3053.303 Agency forms.
This section illustrates agency-specified forms. To access these forms go to:
http://www.dhs.gov (under ‘‘Business, Acquisition Information’’) or https://
dhsonline.dhs.gov/portal/jhtml/general/forms.jhtml.
Form name
Form No.
Form name
Form No.
Cumulative Claim and Reconciliation
Statement.
Contractor’s Assignment of Refunds, Rebates, Credits and Other Amounts.
Contractor’s Release ...............................
DHS Form 0700–
01.
DHS Form 0700–
02.
DHS Form 0700–
03.
Employee’s Claim for Wage Restitution ..
DHS Form 0700–
04.
DHS Form 0700–
05.
DD 882.
Contractor Report of Government Property.
Report of Inventions and Subcontract .....
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Homeland Security Department
3053.303
yshivers on PROD1PC62 with CFR
[71 FR 25776, May 2, 2006]
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| File Type | application/pdf |
| File Modified | 2014-10-14 |
| File Created | 2014-10-14 |