SUBPART 434.0--GENERAL
434.001 Definitions.
Pursuant to OMB Circular No. A-109 (A-109) and the definition at FAR 34.001, within USDA, a system shall be considered a major system if:
(a) The total acquisition costs with private industry are estimated to be $50 million or more, or
(b) The system has been specifically designated to be a major system by the USDA Acquisition Executive, even if the acquisition costs are not expected to exceed $50 million.
434.002 Policy.
In addition to the policy guidance at FAR 34.002, the policies outlined in paragraph 6 of A-109 should serve as guidelines for all contracting activities in planning and developing systems, major or otherwise.
434.003 Responsibilities.
(a) The Secretary of Agriculture or other designated USDA key executive is responsible for making four key decisions in each major system acquisition process. These are listed in paragraph 9 of A-109 and elaborated on in paragraphs 10 through 13. The key executives of USDA (Secretary, Deputy Secretary, Under Secretaries andAssistant Secretaries) individually or as a group will participate in this decision making process.
(b) The Assistant Secretary for Administration (ASA) is the USDA Acquisition Executive. The ASA will ensure that A-109 is implemented in USDA and that the management objectives of the Circular are realized. The ASA is responsible for designating the program manager for each major system acquisition, designating an acquisition to be a major system acquisition, and approving the written charter and project control system for each major system acquisition.
(c) The Procurement and Property Management staff is responsible for assisting the ASA in carrying out the above responsibilities.
(d) Heads of contracting activities must:
(1) Ensure compliance with the requirements of A-109, FAR Part 34 and AGAR 434.
(2) Ensure that potential major system acquisitions are brought to the attention of the USDA Acquisition Executive.
(3) Recommend qualified candidates for designation as program managers for each major system acquisition within their jurisdiction.
(4) Ensure that program managers fulfill their responsibilities and discharge their duties.
(5) Cooperate with the ASA in implementing the requirements of A-109.
(e) The program manager is responsible for planning and executing the major system acquisition, ensuring appropriate coordination with the USDA Acquisition Executive and other key USDA executives.
434.004 Acquisition strategy.
(a) The program manager will develop, in coordination with the Acquisition Executive, a written charter outlining the authority, responsibility, accountability, and budget for accomplishing the proposed objective.
(b) The program manager will develop, subject to the approval of the Acquisition Executive, a project control system to schedule, monitor, and regularly report on all aspects of the project. The control system shall establish reporting periods and milestones consistent with the key decisions listed in paragraph 9 of A-109.
(c) Upon initiation of the project, the program manager will report regularly to the Acquisition Executive.
434.005 General Requirements.
434.005-6 Full Production.
The Secretary or the USDA key executive designated by the Secretary forthe specific program is the agency head for the purposes of FAR 34.005-6.
435.010 Scientific and technical reports.
Research and development contracts shall contain a provision requiring that the contractor send copies of all scientific and technical reports to the National Technical Information Service at the address indicated in FAR 35.010(b). The release of research and development contract results to other government activities and to the private sector is subject to the provisions of FAR Subpart 4.4.
436.201 Evaluation of contractor performance.
Preparation of performance evaluation reports. In addition to the requirements of FAR 36.201, performance evaluation reports shall be prepared for indefinite-delivery type contracts when either the contract maximum or the contracting activity's reasonable estimate of services to be ordered exceeds $500,000.00. For these contracts, performance evaluation reports shall be prepared for each order at the time of final acceptance of the work under the order.
436.203 Government estimate of construction costs.
For acquisitions using sealed bid procedures, the contracting officer may disclose the overall amount of the Government's estimate of construction costs following identification of the responsive bid most advantageous to the Government; verification of that bid's price reasonableness; and verification of the bidder's responsibility. For acquisitions using other than sealed bid procedures (e.g., negotiation), the contracting officer may disclose theoverall amount of the estimate after contract award.
436.204 Disclosure of the magnitude of construction projects.
In the case of indefinite-delivery type contracts, the reasonable estimate of work to be done or the maximum in the solicitation, both including all options, is to be used to select the price range. Contracting officers may elect to use both a price range for the base period of services and the total, inclusive of options, to best describe the magnitude of the solicitation.
436.205 Statutory cost limitations.
(a) When it appears that funds available for a project may be insufficient for all the desired features of construction, the contracting officer may provide in the solicitation for a base bid item covering the work generally as specified and for one or more additive or deductive bid items which progressively add or omit specified features of the work in a stated order of priority. In this case, the contracting officer shall insert the provision at 452.236-70, Additive or Deductive Items, in solicitations for construction.
(b) In the alternative to the process in paragraph (a) of this section, the contracting officer may use the policies and procedures found in FAR 17.2.
436.209 Construction contracts with architect-engineer firms.
The head of the contracting activity (HCA) is authorized to approve the award of a contract to construct a project, in whole or in part, to the firm (inclusive of its subsidiaries or affiliates) that designed the project.
436.302 Presolicitation notices.
The authority to waive a presoli-citation notice is restricted to the HCA.
436.500 Scope of subpart.
This subpart prescribes clauses for insertion in USDA solicitations and contracts for construction and for dismantling, demolition, or removal of improvements or structures. The contracting officer shall use the clauses as prescribed, in contracts that exceed the simplified acquisition threshold. The contracting officer may use the clauses if the contract amount is expected to be within the simplified acquisition threshold.
436.571 Prohibition against the use of lead-based paint.
The contracting officer shall insert the clause at 452.236-71, Prohibition Against the Use of Lead-Based Paint, in solicitations and contracts, if the work involves construction or rehabilitation (including dismantling, demolition, or removal) of residential structures. This clause may be used in contracts for other than residential structures.
436.572 Use of premises.
The contracting officer shall insert the clause at 452.236-72, Use of Premises, if the contractor will be permitted to use land or premises administered by USDA.
436.573 Archeological or historic sites.
The contracting officer shall insert the clause at 452.236-73, Archeological or Historic Sites, if the contractor will be working in an area where such sites may be found. Use of the clause is optional in service contracts for on-the-ground work, e.g. reforestation, silvicultural, land stabilization, or other agricultural-related projects.
436.574 Control of erosion, sedimentation, and pollution.
The contracting officer shall insert the clause at 452.236-74, Control of Erosion, Sedimentation and Pollution, if there is a need for applying environ-mental controls in the performance of work. Use of the clause is optional in service contracts for on-the-ground e.g., reforestation, silvicultural, land stabilization, or other agricultural-related projects.
436.575 Maximum workweek-construction schedule.
The contracting officer shall insert the clause at 452.236-75, Maximum Workweek-Construction Schedule, if the contractor's work schedule is restricted by access to the facility or must be coordinated with the schedule of contract administration personnel.
436.576 Samples and certificates.
The contracting officer shall insert the clause at 452.236-76, Samples and Certificates, in all contracts.
436.577 Emergency response.
The contracting officer may insert the clause at 452.236-77, Emergency Response, in construction contracts awarded for the Forest Service.
436.578 Standard specifications for construction of roads and bridges.
The contracting officer shall insert the clause at 452.236-78, Forest Service Standard Specifications for Construction of Roads and Bridges, in construction contracts that incorporate the standard specifications.
436.579 Opted timber sale road requirements.
The contracting officer shall insert the clause at 452.236-79, Opted Timber Sale Road Requirements, in roadconstruction contracts resulting from a timber sale turnback.
436.601 Policy.
436.601-3 Applicable contracting procedures.
The technical official's listing of areas where recovered materials cannot be used shall be referred to the contract-ing activity's official designated in accordance with FAR 23.404. A copy of the listing and of any approval or disapproval by that official is to be retained in the solicitation file.
436.602 Selection of firms for architect-engineer contracts.
436.602-1 Selection criteria.
The HCA is authorized to approve the use of design competition under the conditions in FAR 36.602-1(b).
436.602-2 Evaluation boards.
HCA's shall establish written procedures for providing permanent or ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-2. The procedures may provide for the appointment of private practitioners of architecture, engineering, or related professions when such action is determined by the HCA to be essential to meet the Government's minimum needs.
436.602-3 Evaluation board functions.
The selection report required in FAR 36.602-3(d) shall be prepared for the approval of the HCA. The HCA may authorize an acquisition official above the level of the contracting officer to execute the required approval.
436.602-4 Selection authority.
(a) The HCA shall serve as the selection authority in accordance with FAR 36.602-4. The HCA may authorize an acquisition official above the level of the contracting officer to serve as the selection authority.
(b) A copy of the final selection, inclusive of the supporting documents, shall be provided to the contracting officer and maintained in the solicitation file.
436.602-5 Short selection process for contracts not to exceed the simplified acquisition threshold.
The HCA may include either or both procedures in FAR 36.602-5 in the procedures for evaluation boards.
436.603 Collecting data on and appraising firms' qualifications.
(a) HCA's which require architect-engineer services shall establish procedures to comply with the requirements of FAR 36.603.
(b) The procedures shall include a list of names, addresses, and phone numbers of offices or boards assigned to maintain architect-engineer qualification data files. The list shall be updated annually.
436.604 Performance evaluation.
Preparation of performance evaluation reports. (a) In addition to the requirements of FAR 36.604, performance evaluation reports shall be prepared for indefinite-delivery type contracts when either the contract maximum or the contracting activities reasonable estimate of services to be ordered exceeds $25,000.00. For these contracts, performance evaluation reports shall be prepared for each order at the time of final acceptance of the work under the order. (b) The contracting officer may require a performance evaluation report on the work done by the architect-engineer after the completion of or during the construction of the designed project.
436.605 Government cost estimate for architect-engineer work.
The contracting officer may release the Government's total cost estimate in accordance with FAR 36.605(b).
436.609 Contract clauses.
436.609-1 Design within funding limitations.
(a) Should the head of the contracting activity appoint a designee to make the determination in FAR 36.609-1(c)(1), the appointment may be to one no lower than the official authorized to commit program funds for the work being acquired.
(b) The contracting officer, with the advice of appropriate technical representatives, may make the determination in FAR 36.609-1(c)(2) or (3).
(c) A copy of the determinations described in paragraphs (b) and (c) of this section shall be maintained in the contract file.
436.670 Firms ineligible for award --construction.
The contracting officer shall insert the clause at 452.236-80, Firms Ineligible For Award -- Construction, in the contract for architect-engineering services except as provided in FAR 36.209 and AGAR 436.209.
437.104 Personal services contracts.
USDA has the following specific statutory authorities to contract for personal services:
(a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) authorizes contracting with persons or organizations on a temporary basis, without regard to civil service compensation classification standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, Provided:
(1) That no expenditures shall be made unless specifically provided for in the applicable appropriation, and
(2) Expenditures do not exceed any limitations prescribed in the appropriation.
(b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to contract with technically qualified persons, firms or organizations to perform research, inspection, classification, technical, or other special services, without regard to the civil-service laws, Provided: it is for a temporary basis and for a term not to exceed six months in any fiscal year.
437.110 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert a clause substantially the same as the clause at 452.237-70, Loss Damage, Destruction or Repair, in contracts for equipment rental, whether the equipment is furnished with or without operator.
(b) The contracting officer shall insert a provision substantially the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, in all solicitations if a conference with prospective offerors will be held prior to the submittal of bids or proposals.
(c) The contracting officer shall insert the provision at 452.237-73, Equipment Inspection visit, in solicitations if work is to be done on Government equipment and an offeror's inspection is encouraged for an understanding of the work to be performed prior to submittal of bids or proposals.
(d) The contracting officer shall insert a clause substantially the same as the clause at 452.237-74, Key Personnel, in contracts if contract performance requires identification of the contractor's key personnel.
(e) The contracting officer shall insert a clause substantially the same as the clause at 452.237-75, Restrictions Against Disclosure, in service contracts (including architect-engineer contracts) requiring restrictions on release of information developed or obtained in connection with performance of the contract.
437.203 Policy.
Contracting for advisory and assistance services is subject to the policy and procedures in Departmental Regulations (5000 series).
437.270 Solicitation and contract clauses.
(a) The contracting officer shall insert a clause substantially the same as the clause at 452.237-76, Progress Reporting, in all contracts for advisory and assistance services. It may also be used in other service contracts.
(b) The contracting officer shall insert a clause substantially the same as the clause at 452.237-78, Contracts with Consulting Firms for Services, in solicitations and contracts for consulting services which prohibit follow-on contracts with the contracting firm.
441.201 Policy
As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency head designee is the head of the contracting activity.