405.303 Announcement of contract awards.
Contracting officers shall make information available on any contract award with an estimated total value over $1 million (including options) to their agency congressional liaison office in sufficient time for the agency to announce it by 5:00 p.m. Washington, DC time on the day of award. The agency congressional liaison office shall, concurrent with the public announcement, provide the award announcement information to the USDA Congressional Relations Office.
405.403 Requests from Members of Congress.
The head of the contracting activity (HCA) is the agency head designee pursuant to FAR 5.403(a).
405.404 Release of long-range acquisition estimates.
405.404-1 Release procedures.
(a) HCA's shall establish written procedures to control the release of long-range acquisition estimates as authorized under FAR 5.404-1.
(b) Classified information shall not be released without the approval of the USDA Security Officer, Policy Analysis and Coordination Center - Human Resources Management. Departmental Manual and Regulation (3400 series) contain guidance on classified information.
405.502 Authority.
(a) The authority vested in the agency head to authorize publication of paid advertisements in newspapers (44 U.S.C. 3702) is delegated, with power of redelegation, to HCA's. HCA redelegation of this authority shall be in writing.
(b) Policies and procedures regarding prior authorization required for media other than newspapers are contained in USDA Departmental Regulations 1400 series.
406.202 Establishing or maintaining alternative sources.
The Senior Procurement Executive is authorized to make determinations pursuant to FAR 6.202(a) and sign the determination and findings required by FAR 6.202(b).
406.302 Circumstances permitting other than full and open competition.
406.302-70 Otherwise authorized by law.
(a) Authority. Section 1472 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) authorizes the Secretary of Agriculture to award contracts, without competition, to further research, extension, or teaching programs in the food and agricultural sciences.
(b) Limitations. The use of this authority is limited to those instances where it can be determined that contracting without full and open competition is in the best interest of the Government and necessary to the accomplishment of the research, extension, or teaching program. Therefore:
(1) Contracts under the authority of the Act shall be awarded on a competitive basis to the maximum practicable extent.
(2) When full and open competition is not deemed appropriate, the contracting officer shall make a written justification on a case-by-case basis in accordance with procedures in FAR 6.303 and 6.304.
406.501 Requirements.
(a) The Chief, Procurement Policy Division, Procurement and Property Management, Policy Analysis and Coordination Center, has been designated as the Competition Advocate for USDA.
(b) Each HCA shall designate a competition advocate for the contracting activity.
407.103 Agency-head responsibilities.
Heads of Contracting Activities (HCA's) shall develop procedures to comply with FAR 7.103.
407.170 Advance acquisition plans.
Each HCA shall implement an advance acquisition planning system in accordance with procedures in Departmental Directives (5000 series).
407.302 General.
The requirements of FAR Subpart 7.3 and OMB Circular A-76 are implemented by Departmental Directives (2100 series).
407.503 Policy.
(a) HCA's shall establish procedures to ensure that requesting activities provide the written determination required by FAR 7.503(e), when submitting requests for procurement of services.
(b) In the event of a disagreement as to whether the functions to be performed are inherently governmental, the HCA may refer the matter to the Senior Procurement Executive (SPE) for resolution. When submitting disagreements to the SPE for resolution the HCA shall provide a summary of the areas of disagreement, supported by the following:
(1) the HCA's assessment of whether the services are "inherently governmental";
(2) the basis for that assessment (include references to the definition and policy in FAR subpart 7.5 and/or Office of Federal Procurement Policy letter 92-1);
(3) a copy of the statement of work; and,
(4) the requesting activity written determination in accordance with FAR 7.503(e).
(c) Such disagreements shall be resolved prior to issuance of the solicitation.
408.404 Using schedules.
408.404-3 Requests for waivers.
A copy of the request for a waiver and the approval shall be placed in the contract file to support the acquisition of items off schedule.
408.701 Definitions.
"Committee Member" is the Presidential appointee representing USDA as a member of the Committee for Purchase from People Who Are Blind or Severely Disabled.
"Organization head" is the head of the contracting activity (HCA), the head of a USDA corporation (as described in 31 U.S.C. 9101), or the head of a USDA staff office.
408.705 Procedures.
(a) The organization head shall appoint one person as Javits-Wagner-O'Day Act (JWOD) Advocate to represent the organization and to coordinate the organization's actions with the Committee Member.
(b) JWOD advocates may represent more than one organization. Advocates need not be acquisition officials.
(c) The organization head shall issue and maintain an action plan to promote and enhance the organization's acquisitions from JWOD participating nonprofit agencies.
(d) The action plan shall: (1) announce the organization's support for the JWOD Act; (2) establish a promotion program for the products and services provided by the JWOD participating nonprofit agencies; (3) provide for the JWOD Advocate's role in acquisition planning; (4) establish measurable program goals for growth or other accomplishment in the organization's JWOD program actions; and (5) establish an awards program for successful participation in the JWOD program.
408.705-2 Direct order process.
(a) The chief of a contracting office may apply to a central nonprofit agency for authorization to order specific supplies or services directly from a JWOD participating nonprofit agency.
(b) A copy of the application should be provided to the JWOD Advocate who will inform the USDA Committee Member.
408.705-3 Allocation process.
(a) The chief of a contracting office may apply to a central nonprofit agency for a production allocation of specific supplies or services to a JWOD participating nonprofit agency.
(b) A copy of the application should be provided to the JWOD Advocate who will inform the USDA Committee Member.
408.705-4 Compliance with orders.
Prior to attempting to resolve a failure to perform by a participating nonprofit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Advocate who will inform the USDA Committee Member.
408.706 Purchase exemptions.
Prior to applying to the Committee for a purchase exemption, the chief of the contracting office should provide advance notice to the JWOD Advocate who will inform the USDA Committee Member.
408.707 Prices.
Prior to applying for a price revision, the chief of the contracting office should provide advance notice to the JWOD Advocate who will inform the USDA Committee Member.
408.711 Quality complaints.
Prior to attempting to resolve a complaint regarding the quality of goods or services provided by participating nonprofit agency with the Committee, the chief of the contracting office should provide advance notice to the JWOD Advocate who will inform the USDA Committee Member.
408.712 Specification changes.
Prior to providing 90-days advance notification to the Committee on actions that affect supplies and services on the Procurement List, the chief of the contracting office should provide advance notice to the JWOD Advocate who will inform the USDA Committee Member.
408.714 Communications with the central nonprofit agencies and the Committee.
Any matter requiring referral to the Committee shall be provided to the JWOD Advocate who will coordinate the matter with the Committee Member.
408.802 Policy.
(a) The Director, Office of Communications (OC) has been designated as the central printing authority in USDA, with the authority to represent the USDA before the Joint Committee on Printing (JCP), the Government Printing Office, and other Federal and State agencies on all matters related to printing.
(b) Prior to contracting for any of the items defined in FAR 8.801, the contracting officer shall verify that the requisite approval has been received by the publication liaison officer or requisitioner.
(c) The approval from OC or the approval authority designated by OC shall be maintained in the contract file.
408.1103 Contract requirements.
If the requirement includes the need for the vendor to provide operational maintenance such as oil and other fluid changes or replenishment, the contracting officer shall include in the contract (1) a requirement for fluids containing the maximum available amounts of recovered materials; and (2) a preference for either retreaded tires meeting the Federal retread specifications or retreading services for the tires on the vehicle.
409.403 Definitions.
"Debarring official." The Senior Procurement Executive (SPE) is designated as the debarring official (Department Debarring Officer) pursuant to the Secretary's delegations of authority in 7 CFR 2.24. However, for contracts awarded under the School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department Debarring Officer has delegated debarring authority to the Agricultural Marketing Service (AMS).
409.404 List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
The Department Debarring Officer is USDA's single point of contact with GSA for debarment and suspension actions taken under this subpart. The debarring official for AMS shall notify the Department Debarring Officer of each debarment and suspension action by promptly submitting a copy of the debarment or suspension notice and any later changes to the debarment or suspension status. The Department Debarring Officer will forward a copy of each notice to GSA for inclusion in the Government-wide list.
409.405 Effect of listing.
Compelling reasons are considered to be present where failure to contract with the debarred or suspended contractor would seriously harm the agency's programs and prevent accomplishment of mission requirements. The SPE is authorized to make the determinations under FAR 9.405. Requests for such determinations shall be submitted through the head of the contracting activity (HCA) to the SPE.
409.405-1 Continuation of current contracts.
The HCA is authorized to make the determinations under FAR 9.405-1.
409.405-2 Restrictions on subcontracting.
The HCA is authorized to approve subcontracts with debarred or suspended subcontractors under FAR 9.405-2.
409.406 Debarment.
409.406-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for debarment, the case shall be immediately referred through the HCA to the debarring official. The case must be accompanied by a complete statement of the facts (including a copy of any criminal indictments, if applicable) along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring to the debarring official.
(b) Decision-making process. If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines debarment is justified, the debarring official shall initiate the proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA of the action taken.
(c) Fact-finding proceeding. For actions listed under FAR 9.406-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing. The hearing should be held at a location and time that is convenient to the parties concerned, if at all possible. The contractor and any specifically named affiliates may be represented by counsel or any duly authorized representative. Witnesses may be called by either party. The proceedings shall be conducted expeditiously and in such a manner that each party will have an opportunity to present all information considered pertinent to the proposed debarment. The contractor shall be provided a copy of a transcript of the proceedings under the conditions established in FAR 9.406-3(b)(2)(ii).
409.407 Suspension.
409.407-3 Procedures.
(a) Investigation and referral. When a contracting officer becomes aware of possible irregularities or any information which may be sufficient cause for suspension, the case shall be immediate-ly referred through the HCA to the debarring official. The case must be accompanied by a complete statement of the facts along with a recommendation for action. Where the statement of facts indicates the irregularities to be possible criminal offenses, or for any other reason further investigation is considered necessary, the matter shall be referred to the HCA who should consult with the Office of Inspector General to determine if further investigation is required prior to referring it to the debarring official.
(b) Decision-making process.
If, after reviewing the recommendations and consulting with the Office of Inspector General and Office of the General Counsel, as appropriate, the debarring official determines suspension is justified, the debarring official shall initiate the proposed suspension in accordance with FAR 9.407-3(c) and notify the HCA of the action taken.
(c) Fact-finding proceedings.
For actions listed under FAR 9.407-3(b)(2), the contractor shall be given the opportunity to appear at an informal hearing, similar in nature to the hearing for debarments as discussed in 409.406-3(c).
409.470 Appeals.
A debarred or suspended contractor may appeal the debarring official's decision by mailing or otherwise furnishing a written notice within 90 days from the date of the decision to the U.S. Department of Agriculture Board of Contract Appeals, Washington, D.C. 20250. A copy of the notice of appeal shall be furnished to the debarring officer from whose decision the appeal is taken. Appeals under Subpart 409.4 shall be governed by the rules and procedures of the U.S. Department of Agriculture Board of Contract Appeals set forth in 7 CFR, Part 24.
409.503 Waiver.
(a) The HCA, on a non-delegable basis, is authorized to waive any general rule or procedure in FAR 9.5 when in the Government's interest.
(b) Each request for waiver shall include:
(1) The general rule or procedure proposed to be waived;
(2) An analysis of the potential conflict, including the benefits and detriments to the Government and prospective contractors;
(3) A discussion of why the conflict cannot be avoided, neutralized, or mitigated; and
(4) Advice of counsel obtained under FAR 9.504(b).
411.103 Market acceptance.
(a) The head of the contracting activity (HCA) may determine that offerors must demonstrate, in accordance with FAR 11.103(a), the market acceptability of their items to be offered.
(b) The contracting officer shall place a copy of this determination, signed by the HCA, in the solicitation file.
411.105 Purchase descriptions for service contracts.
When contract personnel are to be used, the requiring official shall record on the requisition his or her determination whether harm to the Government might occur should contractor personnel fail to identify themselves as non-Government officials.
411.170 Brand name or equal.
(a) A "brand name or equal" purchase description shall include the following type of information:
(i) Identification of the item by generic description.
(ii) Make, model number, catalog designation, or other description, and identification of a commercial catalog where it is listed.
(iii) Name of manufacturer, producer, or distributor of the item and complete address.
(iv) All salient characteristics of the "brand name or equal" product or products which have been determined by the requisitioner to be essential to the Government's minimum requirements.
411.171 Solicitation provisions and contract clauses.
(a) Contracting officers shall insert the provision at 452.211-1, Brand Name or Equal, in solicitations, other than those for construction, where "brand name or equal" purchase descriptions are used.
(b) Contracting officers shall insert the clause at 452.211-2, Equal Products Offered, in solicitations, other than those for construction, where the provision at 452.211-1 is included.
(c) Contracting officers shall insert the clause at 452.211-3, Statement of Work/Specifications, when the description (statement of work) or specification(s) is included in Section J of the solicitation.
(d) Contracting officers shall insert the clause at 452.211-4, Attachment to Statement of Work/Specifications, when there are attachments to the description (statement of work) or specifications.
411.202 Maintenance of standardization documents.
Recommendations for changes to standardization documents are to be submitted through the Senior Procurement Executive, who will coordinate the submission of these recommendations to the cognizant preparing activity.
411.404 Contract Clauses.
(a) The contracting officer shall insert the clause at 452.211-5, Period of Performance, when it is necessary to specify a period of performance, beginning on the date of award, date of receipt of notice of award, or a specified date.
(b) The contracting officer shall insert the clause at 452.211-6, Effective Period of the Contract, when it is necessary to specify the effective period of the contract.
411.600 Scope of subpart.
The Defense Priorities and Allocation System (DPAS) excludes USDA activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not authorized to place rated orders under DPAS.
412.302 Tailoring of provisions and clauses for the acquisition of commercial items
The head of the contracting activity is authorized to approve waivers in accordance with FAR 12.302(c). The approved waiver may be either for an individual contract or for a class of contracts for the specific item. The approved waiver and supporting documentation shall be incorporated into the contract file.