A complete revision of the Education Department Acquisition Regulation (EDAR) became effective on May 9, 2011. The new regulation can be reviewed in its entirety on http://edocket.access.gpo.gov/2011/pdf/2011-4660.pdf.
TITLE 48—FEDERAL ACQUISITION
REGULATIONS SYSTEM
CHAPTER 34—DEPARTMENT OF
EDUCATION ACQUISITION REGULATION
PARTS 3400 TO 3499
SUBCHAPTER A—GENERAL
Sec.
3401 ED acquisition regulation system
3402 Definitions of words and terms
3403 Improper business practices and
personal conflicts of interest
SUBCHAPTER B—COMPETITION AND
ACQUISITION PLANNING
3405 Publicizing contract actions
3406 Competition requirements
3408 Required sources of supplies and
services
3409 Contractor qualifications
3412 Acquisition of commercial items
SUBCHAPTER C—CONTRACTING
METHODS AND CONTRACT TYPES
3413 Simplified acquisition procedures
3414 Sealed bidding
3415 Contracting by negotiation
3416 Types of contracts
3417 Special contracting methods
SUBCHAPTER D—SOCIOECONOMIC
PROGRAMS
3419 Small business programs
3422 Application of labor laws to
Government acquisitions
3424 Protection of privacy and freedom of
information
3425 Foreign acquisition
SUBCHAPTER E—GENERAL
CONTRACTING REQUIREMENTS
3427 Patents, data, and copyrights
3428 Bonds and insurance
3432 Contract financing
3433 Protests, disputes, and appeals
SUBCHAPTER F—SPECIAL CATEGORIES
OF CONTRACTING
3437 Service contracting
3439 Acquisition of information technology
SUBCHAPTER G—CONTRACT
MANAGEMENT
3442 Contract administration and audit
services
3443 Contract modifications
3445 Government property
3447 Transportation
SUBCHAPTER H—CLAUSES AND FORMS
3452 Solicitation provisions and contract
Clauses
SUBCHAPTER A—GENERAL
PART 3401—ED ACQUISITION
REGULATION SYSTEM
Sec.
3401.000 Scope of part.
Subpart 3401.1—Purpose, Authority,
Issuance
3401.104 Applicability.
3401.105 Issuance.
3401.105–2 Arrangement of regulations.
3401.105–3 Copies.
Subpart 3401.3—Agency Acquisition
Regulations
3401.301 Policy.
3401.303 Publication and codification.
3401.304 Agency control and compliance
procedures.
Subpart 3401.4—Deviations
3401.401 Definition.
3401.403 Individual deviations.
3401.404 Class deviations.
Subpart 3401.5—Agency and Public
Participation
3401.501 Solicitation of agency and public
views.
3401.501–2 Opportunity for public
comments.
Subpart 3401.6—Career Development,
Contracting Authority, and
Responsibilities
3401.601 General.
3401.602–3 Ratification of unauthorized
commitments.
3401.670 Nomination and appointment of
contracting officer’s representatives
(CORs).
3401.670–1 General.
3401.670–2 Appointment.
3401.670–3 Contract clause.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
3401.000 Scope of part.
The Federal Acquisition Regulation
System brings together, in title 48 of the
Code of Federal Regulations, the
acquisition regulations applicable to all
executive agencies of the Federal
government. This part establishes a
system of Department of Education
(Department) acquisition regulations,
referred to as the EDAR, for the
codification and publication of policies
and procedures of the Department that
implement and supplement the Federal
Acquisition Regulation (FAR).
Subpart 3401.1—Purpose, Authority,
Issuance
3401.104 Applicability.
(a)The FAR and the EDAR apply to
all Department contracts, as defined in
FAR Part 2, except where expressly
excluded.
(b) 20 U.S.C. 1018a provides the PBO
with procurement authority and
flexibility associated with sections
(a)–(l) of the statute.
(c) For non-appropriated fund
contracts, the FAR and EDAR will be
followed to the maximum extent
practicable, excluding provisions
determined by the contracting officer,
with the advice of counsel, not to apply
to contracts funded with non-appropriated
funds. Adherence to a
process similar to those required by or
best practices suggested by the FAR will
not confer court jurisdiction concerning
non-appropriated funds that does not
otherwise exist.
3401.105 Issuance.
3401.105–2 Arrangement of regulations.
(c)(5) References and citations. The
regulations in this chapter may be
referred to as the Department of
Education Acquisition Regulation or the
EDAR. References to the EDAR are made
in the same manner as references to the
FAR. See FAR 1.105–2(c).
3401.105–3 Copies.
Copies of the EDAR in the Federal
Register and Code of Federal
Regulations (CFR) may be purchased
from the Superintendent of Documents,
Government Printing Office (GPO),
Washington, DC 20402. An electronic
version of the EDAR is available for
viewing at: http://www.ed.gov/policy/
fund/reg/clibrary/edar.html.
Subpart 3401.3—Agency Acquisition
Regulations
3401.301 Policy.
(a)(1) Subject to the authorities in
FAR 1.301(c) and other statutory
authority, the Secretary of Education
(Secretary) or delegate may issue or
authorize the issuance of the EDAR. It
implements or supplements the FAR
and incorporates, together with the
FAR, Department policies, procedures,
contract clauses, solicitation provisions,
and forms that govern the contracting
process or otherwise control the
relationship between the Agency,
including its sub-organizations, and
contractors or prospective contractors.
The Head of Contracting Activity (HCA)
for FSA may issue supplementary
guidelines applicable to FSA.
3401.303 Publication and codification.
(a) The EDAR is issued as chapter 34
of title 48 of the CFR.
(1) The FAR numbering illustrations
at FAR 1.105–2 apply to the EDAR.
(2) The EDAR numbering system
corresponds with the FAR numbering
system. An EDAR citation will include
the prefix ‘‘34’’ prior to its corresponding
FAR part citation; e.g., FAR 25.108–2
would have corresponding EDAR text
numbered as EDAR 3425.108–2.
(3) Supplementary material for which
there is no counterpart in the FAR will
be codified with a suffix beginning with
‘‘70’’ or, in cases of successive sections
and subsections, will be numbered in
the 70 series (i.e., 71–79). These
supplementing sections and subsections
will appear to the closest corresponding
FAR citation; e.g., FAR 16.4.
(Incentive Contracts) may be augmented in the
EDAR by citing EDAR 3416.470 (Award
Term) and FAR 16.403 (Fixed-price
incentive contracts) may be augmented
in the EDAR by citing EDAR 3416.403–
70 (Award fee contracts). (Note: These
citations are for illustrative purposes
only and may not actually appear in the
published EDAR). For example:
FAR |
Is Implemented as |
Is Augmented as |
15 |
3415 |
3415.70 |
15.1 |
3415.1 |
3415.170 |
15.101 |
3415.101 |
3415.101–70 |
15.101–1 |
3415.101–1 |
3415.101–1–70 |
15.101–1(b) |
3415.101–1(b) |
3415.101–1(b)(70) |
15.101–1(b)(1) |
3415.101–1(b)(1) |
3415.101–1(b)(1)(70) |
(c) Activity-specific authority.
Guidance that is unique to an
organization with HCA authority
contains that activity’s acronym directly
preceding the cite. The following
activity acronyms apply:
FSA—Federal Student Aid.
3401.304 Agency control and compliance
procedures.
(a) The EDAR is issued for
Department acquisition guidance in
accordance with the policies stated in
FAR 1.301. The EDAR is subject to the
same review procedures within the
Department as other regulations of the
Department.
Subpart 3401.4—Deviations
3401.401 Definition.
A deviation from the EDAR has the
same meaning as a deviation from the
FAR.
3401.403 Individual deviations.
An individual deviation from the FAR
or the EDAR must be approved by the
Senior Procurement Executive (SPE).
3401.404 Class deviations.
A class deviation from the FAR or the
EDAR must be approved by the Chief
Acquisition Officer (CAO).
Subpart 3401.5—Agency and Public
Participation
3401.501 Solicitation of agency and public
views.
3401.501–2 Opportunity for public
comments.
Unless the Secretary approves an
exception, the Department issues the
EDAR, including any amendments to
the EDAR, in accordance with the
procedures for public participation in 5
U.S.C. 553. Comments on proposed
Department notices of proposed
rulemaking may be made at http://
www.regulations.gov.
Subpart 3401.6—Career Development,
Contracting Authority, and
Responsibilities
3401.601 General.
(a) Contracting authority is vested in
the Secretary. The Secretary has
delegated this authority to the CAO. The
Secretary has also delegated contracting
authority to the SPE, giving the SPE
broad authority to perform functions
dealing with the management direction
of the entire Department’s procurement
system, including implementation of its
unique procurement policies,
regulations, and standards. Limitations
to the extent of this authority and
successive delegations are set forth in
the respective memorandums of
delegations.
3401.602–3 Ratification of unauthorized
commitments.
(a) Definitions. As used in this
subpart, commitment includes issuance
of letters of intent and arrangements for
free vendor services or use of equipment
with the promise or the appearance of
commitment that a contract,
modification, or order will, or may, be
awarded.
(b) Policy.
(1) The HCA or Chief of the
Contracting Office may, or may not,
later ratify unauthorized commitments
made by individuals without
contracting authority or by contracting
officers acting in excess of the limits of
their delegated authority. Law and
regulation requires that only individuals
acting within the scope of their
authority make acquisitions. Within the
Department, that authority vests solely
with the Contracting Officer.
Acquisitions made by other than
authorized personnel are matters of
serious misconduct. The employee may
be held legally and personally liable for
the unauthorized commitment.
(2) Ratifications do not require
concurrence from legal counsel.
(3) The person who made the
unauthorized commitment must prepare
the request for approval that must be
submitted through the person’s manager
to the approving official.
(4) The Chief of the Contracting Office
may review and sign or reject
ratification requests up to $25,000.
(5) All other ratification requests must
be reviewed and signed or rejected by
the HCA.
3401.670 Nomination and appointment of
contracting officer’s representatives
(CORs).
3401.670–1 General.
(a) Program offices must nominate
personnel for consideration of a COR
appointment in accordance with the
Department’s COR Policy Guide.
(b) The contracting officer must
determine what, if any, duties will be
delegated to a COR.
(c) The contracting officer may
appoint as many CORs as is deemed
necessary to support efficient contract
administration.
(d) Only individuals with a written
delegation of authority from a
contracting officer may act in any
capacity as a representative of that
contracting officer, including any
alternate, assistant, or back-up duties to
the COR.
(e) For all contracts in which an
information technology system exists,
the System Security Officer for that
system will perform all responsibilities
necessary for contractor access to the
system.
3401.670–2 Appointment.
COR appointments must be in
accordance with the Department’s COR
Program Guide.
3401.670–3 Contract clause.
Contracting officers must insert a
clause substantially the same as the
clause at 3452.201–70 (Contracting
Officer’s Representative (COR)), in all
solicitations and contracts for which a
COR will be (or is) appointed.
PART 3402—DEFINITIONS OF WORDS
AND TERMS
Subpart 3402.1—Definitions
Sec.
3402.101 Definitions.
3402.101–70 Abbreviations and acronyms.
Subpart 3402.2—Definitions Clause
3402.201 Contract clause.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3402.1—Definitions
3402.101 Definitions.
As used in this chapter—
Chief Acquisition Officer or CAO
means the official responsible for
monitoring the agency’s acquisition
activities, evaluating them based on
applicable performance measurements,
increasing the use of full and open
competition in agency acquisitions,
making acquisition decisions consistent
with applicable laws, and establishing
clear lines of authority, accountability,
and responsibility for acquisition
decision-making and developing and
maintaining an acquisition career
management program.
Chief of the Contracting Office means
an official serving in the contracting
activity (CAM or FSA Acquisitions) as
the manager of a group that awards and
administers contracts for a principal
office of the Department. See also
definition of Head of the Contracting
Activity or HCA below.
Contracting Officer’s Representative
or COR means the person representing
the Federal government for the purpose
of technical monitoring of contract
performance. The COR is not authorized
to issue any instructions or directions
that effect any increases or decreases in
the scope of work or that would result
in the increase or decrease of the cost or
price of a contract or a change in the
delivery dates or performance period of
a contract.
Department of ED means the United
States Department of Education.
Head of the Contracting Activity or
HCA means those officials within the
Department who have responsibility for
and manage an acquisition organization
and usually hold unlimited
procurement authority. The Director,
Federal Student Aid Acquisitions, is the
HCA for FSA. The Director, Contracts
and Acquisitions Management (CAM), is
the HCA for all other Departmental
program offices and all boards,
commissions, and councils under the
management control of the Department.
Performance-Based Organization or
PBO is the office within the Department
that is mandated by Public Law 105–244
to carry out Federal student assistance
or aid programs and report to Congress
on an annual basis. It may also be
referred to as ‘‘Federal Student Aid.’’
Senior Procurement Executive or SPE
means the single agency official
appointed as such by the head of the
agency and delegated broad
responsibility for acquisition functions,
including issuing agency acquisition
policy and reporting on acquisitions
agency-wide. The SPE also acts as the
official one level above the contracting
officer when the HCA is acting as a
contracting officer.
3402.101–70 Abbreviations and acronyms.
CAO—Chief Acquisition Officer.
CO—Contracting Officer.
COR—Contracting Officer’s Representative.
FSA—Federal Student Aid.
HCA—Head of the Contracting Activity.
IPv6—Internet Protocol version 6.
OMB—Office of Management and Budget.
OSDBU—Office of Small and Disadvantaged
Business Utilization.
PBO—Performance-Based Organization
(Federal Student Aid).
RFP—Request for Proposal.
SBA—Small Business Administration.
SPE—Senior Procurement Executive.
Subpart 3402.2—Definitions Clause
3402.201 Contract clause.
The contracting officer must insert the
clause at 3452.202–1 (Definitions—
Department of Education) in all
solicitations and contracts in which the
clause at FAR 52.202–1 is required.
PART 3403—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
Subpart 3403.1—Safeguards
Sec.
3403.101 Standards of conduct.
3403.101–3 Agency regulations.
Subpart 3403.2—Contractor Gratuities to
Government Personnel
3403.203 Reporting suspected violations of
the Gratuities clause.
Subpart 3403.3—Reports of Suspected
Antitrust Violations
3403.301 General.
Subpart 3403.4—Contingent Fees
3403.409 Misrepresentation or violations of
the covenant against contingent fees.
Subpart 3403.6—Contracts with
Government Employees or Organizations
Owned or Controlled by Them
3403.602 Exceptions.
Authority: 5 U.S.C. 301.
Subpart 3403.1—Safeguards
3403.101 Standards of conduct.
3403.101–3 Agency regulations.
The Department’s regulations on
standards of conduct and conflicts of
interest are in 34 CFR part 73, Standards
of Conduct.
Subpart 3403.2—Contractor Gratuities
to Government Personnel
3403.203 Reporting suspected violations
of the Gratuities clause.
(a) Suspected violations of the
Gratuities clause at FAR 52.203–3 must
be reported to the HCA in writing
detailing the circumstances.
(b) The HCA evaluates the report with
the assistance of the Designated Agency
Ethics Officer. If the HCA determines
that a violation may have occurred, the
HCA refers the report to the SPE for
disposition.
Subpart 3403.3—Reports of Suspected
Antitrust Violations
3403.301 General.
Any Departmental personnel who
have evidence of a suspected antitrust
violation in an acquisition must—
(1) Report that evidence through the
HCA to the Office of the General
Counsel for referral to the Attorney
General; and
(2) Provide a copy of that evidence to
the SPE.
Subpart 3403.4—Contingent Fees
3403.409 Misrepresentation or violations
of the covenant against contingent fees.
Any Departmental personnel who
suspect or have evidence of attempted
or actual exercise of improper influence,
misrepresentation of a contingent fee
arrangement, or other violation of the
Covenant Against Contingent Fees, must
report the matter promptly in
accordance with the procedures in
3403.203.
Subpart 3403.6—Contracts with
Government Employees or
Organizations Owned or Controlled by
Them
3403.602 Exceptions.
Exceptions under FAR 3.601 must be
approved by the HCA.
SUBCHAPTER B—COMPETITION AND
ACQUISITION PLANNING
PART 3405—PUBLICIZING CONTRACT
ACTIONS
Subpart 3405.2—Synopses of Proposed
Contract Actions
Sec.
3405.202 Exceptions.
3405.203 Publicizing and response time.
3405.205 Special situations.
3405.207 Preparation and transmittal of
synopses.
3405.270 Notices to perform market
surveys.
Subpart 3405.5—Paid Advertisements
3405.502 Authority.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3405.2—Synopses of
Proposed Contract Actions
3405.202 Exceptions.
(a)(15) FSA—Issuance of a synopsis is
not required when the firm to be
solicited has previously provided a
module for the system under a contract
that contained cost, schedule, and
performance goals and the contractor
met those goals.
3405.203 Publicizing and response time.
(c) FSA—Notwithstanding other
provisions of the FAR, a bid or proposal
due date of less than 30 days is
permitted after issuance of a synopsis
for acquisitions for noncommercial
items. However, if time permits, a bid or
proposal due date that affords potential
offerors reasonable time to respond and
fosters quality submissions should be
established.
3405.205 Special situations.
(g) FSA—Module of a previously
awarded system. Federal Student Aid
must satisfy the publication
requirements for sole source and
competitive awards for a module of a
previously awarded system by
publishing a notice of intent on the
government wide point of entry, not less
than 30 days before issuing a
solicitation. This notice is not required
if a contractor who is to be solicited to
submit an offer previously provided a
module for the system under a contract
that contained cost, schedule, and
performance goals, and the contractor
met those goals.
3405.207 Preparation and transmittal of
synopses.
(c) FSA—In Phase One of a Two-
Phase Source Selection as described in
3415.302–70, the contracting officer
must publish a notice in accordance
with FAR 5.2, except that the notice
must include only the following:
(1) Notification that the procurement
will be conducted using the specific
procedures included in 3415.302–70.
(2) A general notice of the scope or
purpose of the procurement that
provides sufficient information for
sources to make informed business
decisions regarding whether to
participate in the procurement.
(3) A description of the basis on
which potential sources are to be
selected to submit offers in the second
phase.
(4) A description of the information
that is to be required to be submitted if
the request for information is made
separate from the notice.
(5) Any other information that the
contracting officer deems is appropriate.
(h) FSA—When modular contracting
authority is being utilized, the notice
must invite comments and support if it
is believed that modular contracting is
not suited for the requirement being
procured.
3405.270 Notices to perform market
surveys.
(a) If a sole source contract is
anticipated, the issuance of a notice of
a proposed contract action that is
detailed enough to permit the
submission of meaningful responses and
the subsequent evaluation of the
responses by the Federal government
constitutes an acceptable market survey.
(b) The notice must include—
(1) A clear statement of the supplies
or services to be procured;
(2) Any capabilities or experience
required of a contractor and any other
factor relevant to those requirements;
(3) A statement that all responsible
sources submitting a proposal, bid, or
quotation must be considered;
(4) Name, business address, and
phone number of the Contracting
Officer; and
(5) Justification for a sole source and
the identity of that source.
Subpart 3405.5—Paid Advertisements
3405.502 Authority.
Authority to approve publication of
paid advertisements in newspapers is
delegated to the HCA.
PART 3406—COMPETITION
REQUIREMENTS
Sec.
3406.001 Applicability.
Subpart 3406.3—Other Than Full and Open
Competition
3406.302–5 Authorized or required by
statute.
Subpart 3406.5—Competition Advocates
3406.501 Requirement.
Authority: 5 U.S.C. 301; 41 U.S.C. 418(a)
and (b); and 20 U.S.C. 1018a.
3406.001 Applicability.
(b) FSA—This part does not apply to
proposed contracts and contracts
awarded based on other than full and
open competition when the conditions
for successive systems modules set forth
in 3417.70 are utilized.
Subpart 3406.3—Other Than Full and
Open Competition
3406.302–5 Authorized or required by
statute.
(a) Authority.
(1) Citations: 20 U.S.C. 1018a.
(2) Noncompetitive awards of
successive modules for systems are
permitted when the conditions set forth
in 3417.70 are met.
Subpart 3406.5—Competition
Advocates
3406.501 Requirement.
The Competition Advocate for the
Department is the Deputy Director,
Contracts and Acquisitions
Management.
PART 3408—REQUIRED SOURCES OF
SUPPLIES AND SERVICES
Subpart 3408.8—Acquisition of Printing and
Related Supplies
Sec.
3408.870 Printing clause.
3408.871 Paperwork reduction.
Authority: 5 U.S.C. 301, unless otherwise
noted.
Subpart 3408.8—Acquisition of
Printing and Related Supplies
Authority: 44 U.S.C. 501.
3408.870 Printing clause.
The contracting officer must insert the
clause at 3452.208–71 (Printing) in all
solicitations and contracts other than
purchase orders.
3408.871 Paperwork reduction.
The contracting officer must insert the
clause at 3452.208–72 (Paperwork
Reduction Act) in all solicitations and
contracts in which the contractor will
develop forms or documents for public
use.
PART 3409—CONTRACTOR
QUALIFICATIONS
Subpart 3409.4—Debarment, Suspension,
and Ineligibility
Sec.
3409.400 Scope of subpart.
3409.401 Applicability.
3409.403 Definitions.
3409.406 Debarment.
3409.406–3 Procedures.
3409.407 Suspension.
3409.407–3 Procedures.
Subpart 3409.5—Organizational and
Consultant Conflicts of Interest
3409.502 Applicability.
3409.503 Waiver.
3409.506 Procedures.
3409.507 Solicitation provision and
contract clause.
3409.507–1 Solicitation provision.
3409.507–2 Contract clause.
3409.570 Certification at or below the
simplified acquisition threshold.
Authority: 5 U.S.C. 301.
Subpart 3409.4—Debarment,
Suspension, and Ineligibility
3409.400 Scope of subpart.
This subpart implements FAR subpart
9.4 by detailing policies and procedures
governing the debarment and
suspension of organizations and
individuals from participating in ED
contracts and subcontracts.
3409.401 Applicability.
This subpart applies to all
procurement debarment and suspension
actions initiated by ED. This subpart
does not apply to nonprocurement
debarment and suspension.
3409.403 Definitions.
The SPE is designated as the
‘‘debarring official’’ and ‘‘suspending
official’’ as defined in FAR 9.403 and is
designated as the agency official
authorized to make the decisions
required in FAR 9.406 and FAR 9.407.
3409.406 Debarment.
3409.406–3 Procedures.
(b) Decision making process.
(1) Contractors proposed for
debarment may submit, in person, in
writing, or through a representative,
information and argument in opposition
to the proposed debarment. The
contractor must submit additional
information within 30 days of receipt of
the notice of proposal to debar, as
described in FAR 9.406–3(c).
(2) In actions not based upon a
conviction or civil judgment, if the
contractor’s submission in opposition
raises a genuine dispute over facts
material to the proposed debarment, the
contractor may request a fact-finding
conference. If the Debarring Official
determines that there is a genuine
dispute of material fact, the Debarring
Official will conduct fact-finding and
base the decision in accordance with
FAR 9.406–3(b)(2) and (d)–(f).
3409.407 Suspension.
3409.407–3 Procedures.
(b) Decision making process.
(1) Contractors suspended in
accordance with FAR 9.407 may submit,
in person, in writing, or through a
representative, information and
argument in opposition to the
suspension. The contractor must submit
this information and argument within
30 days of receipt of the notice of
suspension, as described in FAR 9.407–
3(c).
(2) In actions not based upon an
indictment, if the contractor’s
submission in opposition raises a
genuine dispute over facts material to
the suspension and if no determination
has been made, on the basis of
Department of Justice advice, that
substantial interests of the Government
in pending or contemplated legal
proceedings based on the same facts as
the suspension would be prejudiced, the
contractor may request a fact-finding
conference. The Suspending Official
will conduct fact-finding and base the
decision in accordance with FAR 9.407–
3(b)(2) and (d) through (e).
Subpart 3409.5—Organizational and
Consultant Conflicts of Interest
3409.502 Applicability.
This subpart applies to all ED
contracts except contracts with other
Federal agencies. However, this subpart
applies to contracts with the Small
Business Administration (SBA) under
the 8(a) program.
3409.503 Waiver.
The HCA is designated as the official
who may waive any general rule or
procedure of FAR subpart 9.5 or of this
subpart.
3409.506 Procedures.
(a) If the effects of a potential or actual
conflict of interest cannot be avoided,
neutralized, or mitigated before award,
the prospective contractor is not eligible
for that award. If a potential or actual
conflict of interest is identified after
award and the effects cannot be
avoided, neutralized, or mitigated, ED
will terminate the contract unless the
HCA deems continued performance to
be in the best interest of the Federal
government.
(b) The HCA is designated as the
official to conduct reviews and make
final decisions under FAR 9.506(b) and
(c).
3409.507 Solicitation provision and
contract clause.
3409.507–1 Solicitation provision.
The contracting officer must insert the
provision in 3452.209–70 (Conflict of
interest certification) in all solicitations
for services above the simplified
acquisition threshold.
3409.507–2 Contract clause.
The contracting officer must insert the
clause at 3452.209–71 (Conflict of
interest) in all contracts for services
above the simplified acquisition
threshold. The clause is applicable to
each order for services over the
simplified acquisition threshold under
task order contracts.
3409.570 Certification at or below the
simplified acquisition threshold.
By accepting any contract, including
orders against any Schedule or
Government-wide Acquisition Contract
(GWAC), with the Department at or
below the simplified acquisition
threshold:
(a) The contractor warrants that, to the
best of the contractor’s knowledge and
belief, there are no relevant facts or
circumstances that would give rise to an
organizational conflict of interest, as
defined in FAR subpart 2.1, or that the
contractor has disclosed all such
relevant information.
(b) The contractor agrees that if an
actual or potential organizational
conflict of interest is discovered after
award, the contractor will make an
immediate full disclosure in writing to
the contracting officer. This disclosure
must include a description of actions
that the contractor has taken or proposes
to take, after consultation with the
contracting officer, to avoid, mitigate, or
neutralize the actual or potential
conflict.
(c) The contractor agrees that:
(1) The Government may terminate
this contract for convenience, in whole
or in part, if such termination is
necessary to avoid an organizational
conflict of interest.
2) The Government may terminate
this contract for default or pursue other
remedies permitted by law or this
contract if the contractor was aware or
should have been aware of a potential
organizational conflict of interest prior
to award, or discovers or should have
discovered an actual or potential
conflict after award, and does not
disclose, or misrepresents, relevant
information to the contracting officer
regarding the conflict.
(d) The contractor further agrees to
insert provisions that substantially
conform to the language of this section,
including this paragraph (d), in any
subcontract or consultant agreement
hereunder.
PART 3412—ACQUISITION OF
COMMERCIAL ITEMS
Subpart 3412.2—Special Requirements for
the Acquisition of Commercial Items
Sec.
3412.203 Procedures for solicitation,
evaluation, and award.
Subpart 3412.3—Solicitation Provisions and
Contract Clauses for the Acquisition of
Commercial Items
3412.302 Tailoring of provisions and
clauses for the acquisition of commercial
items.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3412.2—Special Requirements
for the Acquisition of Commercial
Items
3412.203 Procedures for solicitation,
evaluation, and award.
As specified in 3413.003, simplified
acquisition procedures for commercial
items may be used without regard to any
dollar or timeframe limitations
described in FAR 13.5 when acquired
by the FSA and used for its purposes.
Subpart 3412.3—Solicitation
Provisions and Contract Clauses for
the Acquisition of Commercial Items
3412.302 Tailoring of provisions and
clauses for the acquisition of commercial
items.
The HCA is authorized to approve
waivers in accordance with FAR
12.302(c). The approved waiver may be
either for an individual contract or for
a class of contracts for the specific item.
The approved waiver and supporting
documentation must be incorporated
into the contract file.
SUBCHAPTER C—CONTRACTING
METHODS AND CONTRACT TYPES
PART 3413—SIMPLIFIED ACQUISITION
PROCEDURES
Sec.
3413.000 Scope of part.
3413.003 Policy.
Subpart 3413.3—Simplified Acquisition
Methods
3413.303 Blanket purchase agreements
(BPAs).
3413.303–5 Purchases under BPAs.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
3413.000 Scope of part.
3413.003 Policy.
(c)(1)(iii) FSA—FSA may use
simplified acquisition procedures for
commercial items without regard to any
dollar or timeframe limitations
described in FAR 13.5.
(iv) FSA—FSA may use simplified
acquisition procedures for noncommercial
items up to $1,000,000
when the acquisition is set aside for
small businesses, pursuant to 3419.502.
Subpart 3413.3—Simplified Acquisition
Methods
3413.303 Blanket purchase agreements
(BPAs).
3413.303–5 Purchases under BPAs.
(b) Individual purchases under
blanket purchase agreements for
commercial items may exceed the
simplified acquisition threshold but
shall not exceed the threshold for the
test program for certain commercial
items in FAR 13.500(a).
PART 3414—SEALED BIDDING
Subpart 3414.4—Opening of Bids and
Award of Contract
Sec.
3414.407 Mistakes in bids.
3414.407–3 Other mistakes disclosed before
award.
Authority: 5 U.S.C. 301.
Subpart 3414.4—Opening of Bids and
Award of Contract
3414.407 Mistakes in bids.
3414.407–3 Other mistakes disclosed
before award.
Authority is delegated to the HCA to
make determinations under FAR
14.407–3(a) through (d).
PART 3415—CONTRACTING BY
NEGOTIATION
Subpart 3415.2—Solicitation and Receipt of
Proposals and Information
Sec.
3415.209 Solicitation provisions and
contract clauses.
Subpart 3415.3—Source Selection
3415.302 Source selection objective.
3415.302–70 Two-phase source selection.
Subpart 3415.6—Unsolicited Proposals
3415.605 Content of unsolicited proposals.
3415.606 Agency procedures.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3415.2—Solicitation and
Receipt of Proposals and Information
3415.209 Solicitation provisions and
contract clauses.
(a) The Freedom of Information Act
(FOIA), 5 U.S.C. 552, may require ED to
release data contained in an offeror’s
proposal even if the offeror has
identified the data as restricted in
accordance with the provision in FAR
52.215–1(e). The solicitation provision
in 3452.215–70 (Release of restricted
data) informs offerors that ED is
required to consider release of restricted
data under FOIA and Executive Order
12600.
(b) The contracting officer must insert
the provision in 3452.215–70, in all
solicitations that include a reference to
FAR 52.215–1 (Instructions to
Offerors—Competitive Acquisitions).
Subpart 3415.3—Source Selection
3415.302 Source selection objective.
3415.302–70 Two-phase source selection.
(a) FSA—May utilize a two-phase
process to solicit offers and select a
source for award. The contracting officer
can choose to use this optional method
of solicitation when deemed beneficial
to the FSA in meeting its needs as a
PBO.
(b) Phase One.
(1) The contracting officer must
publish a notice in accordance with
FAR 5.2, except that the notice must
include limited information as specified
in 3405.207.
(2) Information Submitted by Offerors.
Each offeror must submit basic
information such as the offeror’s
qualifications, the proposed conceptual
approach, costs likely to be associated
with the approach, and past
performance data, together with any
additional information requested by the
contracting officer.
(3) Selection for participating in
second phase. The contracting officer
must select the offerors that are eligible
to participate in the second phase of the
process. The contracting officer must
limit the number of the selected offerors
to the number of sources that the
contracting officer determines is
appropriate and in the best interests of
the Federal government.
(c) Phase Two.
(1) The contracting officer must
conduct the second phase of the source
selection consistent with FAR 15.2 and
15.3, except as provided by 3405.207.
(2) Only sources selected in the first
phase will be eligible to participate in
the second phase.
Subpart 3415.6—Unsolicited Proposals
3415.605 Content of unsolicited
proposals.
(d) Each unsolicited proposal must
contain the following certification:
Unsolicited Proposal Certification by
Offeror
This is to certify, to the best of my
knowledge and belief, that—
a. This proposal has not been
prepared under Federal government
supervision;
b. The methods and approaches stated
in the proposal were developed by this
offeror;
c. Any contact with employees of the
Department of Education has been
within the limits of appropriate advance
guidance set forth in FAR 15.604; and
d. No prior commitments were
received from Departmental employees
regarding acceptance of this proposal.
Date:
________________
Organization:
________________
Name:
________________
Title:
________________
(This certification must be signed by
a responsible person authorized to enter
into contracts on behalf of the
organization.)
3415.606 Agency procedures.
(b)(1) The HCA or designee is the
contact point to coordinate the receipt,
control, and handling of unsolicited
proposals.
(2) Offerors must direct unsolicited
proposals to the HCA.
PART 3416—TYPES OF CONTRACTS
Subpart 3416.3—Cost-Reimbursement
Contracts
Sec.
3416.303 Cost-sharing contracts.
3416.307 Contract clauses.
Subpart 3416.4—Incentive Contracts
3416.402 Application of predetermined,
formula-type incentives.
3416.402–2 Performance incentives.
3416.470 Award-term contracting.
Subpart 3416.6—Time-and-Materials, Labor-
Hour, and Letter Contracts
3416.603 Letter contracts.
3416.603–3 Limitations.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3416.3—Cost-Reimbursement
Contracts
3416.303 Cost-sharing contracts.
(b) Application. Costs that are not
reimbursed under a cost-sharing
contract may not be charged to the
Federal government under any other
grant, contract, cooperative agreement,
or other arrangement.
3416.307 Contract clauses.
(a) If the clause at FAR 52.216–7
(Allowable Cost and Payment) is used in
a contract with a hospital, the
contracting officer must modify the
clause by deleting the words ‘‘Subpart
31.2 of the Federal Acquisition
Regulation (FAR)’’ from paragraph (a)
and substituting ‘‘34 CFR part 74,
Appendix E.’’
(b) The contracting officer must insert
the clause at 3452.216–70 (Additional
cost principles) in all solicitations of
and resultant cost-reimbursement
contracts with nonprofit organizations
other than educational institutions,
hospitals, or organizations listed in
Attachment C to Office of Management
and Budget Circular A–122.
Subpart 3416.4—Incentive Contracts
3416.402 Application of predetermined,
formula-type incentives.
3416.402–2 Performance incentives.
(b) Award-term contracting may be
used for performance-based contracts or
task orders. See 3416.470 for the
definition of award-term contracting
and implementation guidelines.
3416.470 Award-term contracting.
(a) Definition. Award-term contracting
is a method, based upon a predetermined
plan in the contract, to
extend the contract term for superior
performance and to reduce the contract
term for substandard or poor
performance.
(b) Applicability. A Contracting
Officer may authorize use of an award term
incentive contract for acquisitions
where the quality of contractor
performance is of a critical or highly
important nature. The basic contract
term may be extended on the basis of
the Federal government’s determination
of the excellence of the contractor’s
performance. Additional periods of
performance, which are referred to
herein as ‘‘award terms,’’ are available
for possible award to the contractor. As
award term(s) are awarded, each
additional period of performance will
immediately follow the period of
performance for which the award term
was granted. The contract may end at
the base period of performance if the
Federal government determines that the
contractor’s performance does not
reflect a level of performance as
described in the award-term plan.
Award-term periods may only be earned
based on the evaluated quality of the
performance of the contractor. Meeting
the terms of the contract is not
justification to award an award-term
period. The use of an award-term plan
does not exempt the contract from the
requirements of FAR 17.207, with
respect to performing due diligence
prior to extending a contract term.
(c) Approvals. The Contracting Officer
must justify the use of an award-term
incentive contract in writing. The
award-term plan approving official will
be appointed by the HCA.
(d) Disputes. The Federal government
unilaterally makes all decisions
regarding award-term evaluations,
points, methodology used to calculate
points, and the degree of the
contractor’s success.
(e) Award-term limitations.
(1) Award periods may be earned
during the base period of performance
and each option period, except the last
option period. Award-term periods may
not be earned during the final option
year of any contract.
(2) Award-term periods may not
exceed twelve months.
(3) The potential award-term periods
will be priced, evaluated, and
considered in the initial contract
selection process.
(f) Implementation of extensions or
reduced contract terms.
(1) An award term is contingent upon
a continuing need for the supplies or
services and the availability of funds.
Award terms may be cancelled prior to
the start of the period of performance at
no cost to the Federal government if
there is not a continued need or
available funding.
(2) The extension or reduction of the
contract term is affected by a unilateral
contract modification.
(3) Award-term periods occur after the
period for which the award term was
granted. Award-term periods effectively
move option periods to later contract
performance periods.
(4) Contractors have the right to
decline the award of an award-term
period. A contractor loses its ability to
earn additional award terms if an earned
Award-Term Period is declined.
(5) Changes to the contract award term
plan must be mutually agreed
upon.
(g) Clause. Insert a clause
substantially the same as the clause at
3452.216–71 (Award-term) in all
solicitations and resulting contracts
where an award-term incentive contract
is anticipated.
Subpart 3416.6—Time-and-Materials,
Labor-Hour, and Letter Contracts
3416.603 Letter contracts.
3416.603–3 Limitations.
If the HCA is to sign a letter contract
as the contracting officer, the SPE signs
the written determination under FAR
16.603–3.
PART 3417—SPECIAL CONTRACTING
METHODS
Subpart 3417.2—Options
Sec.
3417.204 Contracts.
3417.207 Exercise of options.
Subpart 3417.5—Interagency Acquisitions
Under the Economy Act
3417.502 General.
Subpart 3417.7—Modular Contracting
3417.70 Modular contracting.
Authority: 31 U.S.C. 1535 and 20 U.S.C.
1018a.
Subpart 3417.2—Options
3417.204 Contracts.
(e) Except as otherwise provided by
law, contract periods that exceed the
five-year limitation specified in FAR
17.204(e) must be approved by—
(1) The HCA for individual contracts;
or
(2) The SPE for classes of contracts.
3417.207 Exercise of options.
If a contract provision allows an
option to be exercised within a specified
timeframe after funds become available,
it must also specify that the date on
which funds ‘‘become available’’ is the
actual date funds become available to
the contracting officer for obligation.
(f)(2) The Federal government may
accept price reductions offered by
contractors at any time during contract
performance. Acceptance of price
reductions offered by contractors will
not be considered renegotiations as
identified in this subpart if they were
not initiated or requested by the Federal
government.
Subpart 3417.5—Interagency
Acquisitions Under the Economy Act
3417.502 General.
No other Federal department or
agency may purchase property or
services under contracts established or
administered by FSA unless the
purchase is approved by SPE for the
requesting Federal department or
agency.
Subpart 3417.7—Modular Contracting
3417.70 Modular contracting.
(a) FSA—May incrementally conduct
successive procurements of modules of
overall systems. Each module must be
useful in its own right or useful in
combination with the earlier
procurement modules. Successive
modules may be procured on a sole
source basis under the following
circumstances:
(1) Competitive procedures are used
for awarding the contract for the first
system module; and
(2) The solicitation for the first
module included the following:
(i) A general description of the entire
system that was sufficient to provide
potential offerors with reasonable notice
of the general scope of future modules;
(ii) Other sufficient information to
enable offerors to make informed
business decisions to submit offers for
the first module; and
(iii) A statement that procedures, i.e.,
the sole source awarding of follow-on
modules, could be used for the
subsequent awards.
SUBCHAPTER D—SOCIOECONOMIC
PROGRAMS
PART 3419—SMALL BUSINESS
PROGRAMS
Subpart 3419.2—Policies
Sec.
3419.201 General policy.
3419.201–70 Office of Small and
Disadvantaged Business Utilization
(OSDBU).
Subpart 3419.5—Set-Asides for Small
Business
3419.502 Setting aside acquisitions.
3419.502–4 Methods of conducting setasides.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3419.2—Policies
3419.201 General policy.
3419.201–70 Office of Small and
Disadvantaged Business Utilization
(OSDBU).
The Office of Small and
Disadvantaged Business Utilization
(OSDBU), Office of the Deputy
Secretary, is responsible for facilitating
the implementation of the Small
Business Act, as described in FAR
19.201. The OSDBU develops rules,
policy, procedures, and guidelines for
the effective administration of ED’s
small business program.
Subpart 3419.5—Set-Asides for Small
Business
3419.502 Setting aside acquisitions.
3419.502–4 Methods of conducting set asides.
(a) Simplified acquisition procedures
as described in FAR Part 13 for the
procurement of noncommercial services
for FSA requirements may be used
under the following circumstances:
(1) The procurement does not exceed
$1,000,000;
(2) The procurement is conducted as
a small business set-aside pursuant to
section 15(a) of the Small Business Act;
(3) The price charged for supplies
associated with the services are
expected to be less than 20 percent of
the total contract price;
(4) The procurement is competitive;
and
(5) The procurement is not for
construction.
PART 3422—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
Subpart 3422.10—Service Contract Act of
1965, as Amended
Sec.
3422.1002 Statutory requirements.
3422.1002–1 General.
Authority: 5 U.S.C. 301 Subpart 3422.10—
Service Contract Act of 1965, as Amended
3422.1002 Statutory requirements.
3422.1002–1 General.
Consistent with 29 CFR 4.145,
Extended term contracts, the five-year
limitation set forth in the Service
Contract Act of 1965, as amended
(Service Contract Act), applies to each
period of the contract individually, not
the cumulative period of base and
option periods. Accordingly, no contract
subject to the Service Contract Act
issued by the Department of Education
will have a base period or option period
that exceeds five years.
PART 3424—PROTECTION OF
PRIVACY AND FREEDOM OF
INFORMATION
Subpart 3424.1—Protection of Individual
Privacy
Sec.
3424.103 Procedures.
3424.170 Protection of human subjects.
Subpart 3424.2—Freedom of Information
Act
3424.201 Authority.
3424.203 Policy.
Authority: 5 U.S.C. 301.
Subpart 3424.1—Protection of
Individual Privacy
3424.103 Procedures.
(a) If the Privacy Act of 1974 (Privacy
Act) applies to a contract, the
contracting officer must specify in the
contract the disposition to be made of
the system or systems of records upon
completion of performance. For
example, the contract may require the
contractor to completely destroy the
records, to remove personal identifiers,
to turn the records over to ED, or to keep
the records but take certain measures to
keep the records confidential and
protect the individual’s privacy.
(b) If a notice of the system of records
has not been published in the Federal
Register, the contracting officer may
proceed with the acquisition but must
not award the contract until the notice
is published, unless the contracting
officer determines, in writing, that
portions of the contract may proceed
without maintaining information subject
to the Privacy Act. In this case, the contracting officer may—
(1) Award the contract, authorizing
performance only of those portions not
subject to the Privacy Act; and
(2) After the notice is published and
effective, authorize performance of the
remainder of the contract.
3424.170 Protection of human subjects.
In this subsection, ‘‘Research’’ means
a systematic investigation, including
research development, testing and
evaluation, designed to develop or
contribute to generalizable knowledge.
(34 CFR 97.102(d)) Research is
considered to involve human subjects
when a researcher obtains information
about a living individual through
intervention or interaction with the
individual or obtains personally
identifiable private information about
an individual. Some categories of
research are exempt under the
regulations, and the exemptions are in
34 CFR part 97.
(a) The contracting officer must insert
the provision in 3452.224–71 (Notice
about research activities involving
human subjects) in any solicitation
where a resultant contract will include,
or is likely to include, research activities
involving human subjects covered
under 34 CFR part 97.
(b) The contracting officer must insert
the clause at 3452.224–72 (Research
activities involving human subjects) in
any solicitation that includes the
provision in 3452.224–71 (Notice about
research activities involving human
subjects) and in any resultant contract.
Subpart 3424.2—Freedom of
Information Act
3424.201 Authority.
The Department’s regulations
implementing the Freedom of
Information Act, 5 U.S.C. 552, are in 34
CFR part 5.
3424.203 Policy.
(a) [Reserved]
(b) The Department’s policy is to
release all information incorporated into
a contract and documents that result
from the performance of a contract to
the public under the Freedom of
Information Act. The release or
withholding of documents requested
will be made on a case-by-case basis.
Contracting officers must advise offerors
and prospective contractors of the
possibility that their submissions may
be released under the Freedom of
Information Act, not withstanding any
restrictions that are included at the time
of proposal submission. A clause
substantially the same as the clause at
3452.224–70 (Release of information
under the Freedom of Information Act)
must be included in all solicitations and
contracts.
PART 3425—FOREIGN ACQUISITION
Subpart 3425.1—Buy American Act—
Supplies
Sec.
3425.102 Exceptions.
Authority: 5 U.S.C. 301.
Subpart 3425.1—Buy American Act—
Supplies
3425.102 Exceptions.
The HCA approves determinations
under FAR 25.103(b)(2)(i).
SUBCHAPTER E—GENERAL
CONTRACTING REQUIREMENTS
PART 3427—PATENTS, DATA, AND
COPYRIGHTS
Subpart 3427.4—Rights in Data and
Copyrights
Sec.
3427.409 Solicitation provisions and
contract clauses.
Authority: 5 U.S.C. 301.
Subpart 3427.4—Rights in Data and
Copyrights
3427.409 Solicitation provisions and
contract clauses.
(a) The contracting officer must insert
the clause at 3452.227–70 (Publication
and publicity) in all solicitations and
contracts other than purchase orders.
(b) The contracting officer must insert
the clause at 3452.227–71 (Advertising
of awards) in all solicitations and
contracts other than purchase orders.
(c) The contracting officer must insert
the clause at 3452.227–72 (Use and nondisclosure
agreement) in all contracts
over the simplified acquisition
threshold, and in contracts under the
simplified acquisition threshold, as
appropriate.
(d) The contracting officer must insert
the clause at 3452.227–73 (Limitations
on the use or disclosure of Government furnished
information marked with
restrictive legends) in all contracts of
third party vendors who require access
to Government-furnished information
including other contractors’ technical
data, proprietary information, or
software.
PART 3428—BONDS AND INSURANCE
Subpart 3428.3—Insurance
Sec.
3428.311 Solicitation provision and
contract clause on liability insurance
under cost-reimbursement contracts.
3428.311–2 Contract clause.
Authority: 5 U.S.C. 301.
Subpart 3428.3—Insurance
3428.311 Solicitation provision and
contract clause on liability insurance under
cost-reimbursement contracts.
3428.311–2 Contract clause.
The contracting officer must insert the
clause at 3452.228–70 (Required
insurance) in all solicitations and
resultant cost-reimbursement contracts.
PART 3432—CONTRACT FINANCING
Subpart 3432.4—Advance Payments for
Non-Commercial Items
Sec.
3432.402 General.
3432.407 Interest.
Subpart 3432.7—Contract Funding
3432.705 Contract clauses.
3432.705–2 Clauses for limitation of cost or
funds.
Authority: 5 U.S.C. 301.
Subpart 3432.4—Advance Payments
for Non-Commercial Items
3432.402 General.
The HCA is delegated the authority to
make determinations under FAR
32.402(c)(1)(iii). This authority may not
be redelegated.
3432.407 Interest.
The HCA is designated as the official
who may authorize advance payments
without interest under FAR 32.407(d).
Subpart 3432.7—Contract Funding
3432.705 Contract clauses.
3432.705–2 Clauses for limitation of cost
or funds.
(a) The contracting officer must insert
the clause at 3452.232–70 (Limitation of
cost or funds) in all solicitations and
contracts where a Limitation of cost or
Limitation of funds clause is utilized.
(b) The contracting officer must insert
the provision in 3452.232–71
(Incremental funding) in a solicitation if
a cost-reimbursement contract using
incremental funding is contemplated.
PART 3433—PROTESTS, DISPUTES,
AND APPEALS
Subpart 3433.1—Protests
Sec.
3433.103 Protests to the agency.
Authority: 5 U.S.C. 301.
Subpart 3433.1—Protests
3433.103 Protests to the agency.
(f)(3) The contracting officer’s HCA
must approve the justification or
determination to continue performance.
The criteria in FAR 33.103(f)(3) must be
followed in making the determination to
award a contract before resolution of a
protest.
SUBCHAPTER F—SPECIAL CATEGORIES
OF CONTRACTING
PART 3437—SERVICE CONTRACTING
Subpart 3437.1—Service Contracts—
General
Sec.
3437.102 Policy.
3437.170 Observance of administrative
closures
Subpart 3437.2—Advisory and Assistance
Services
3437.270 Services of consultants clauses.
Subpart 3437.6—Performance-Based
Acquisition
3437.670 Contract type.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3437.1—Service Contracts—
General
3437.102 Policy.
If a service contract requires one or
more end items of supply, FAR Subpart
37.1 and this subpart apply only to the
required services.
3437.170 Observance of administrative
closures.
The contracting officer must insert the
clause at 3452.237–71 (Observance of
administrative closures) in all
solicitations and contracts for services.
Subpart 3437.2—Advisory and
Assistance Services
3437.270 Services of consultants clause.
The contracting officer must insert the
clause at 3452.237–70 (Services of
consultants) in all solicitations and
resultant cost-reimbursement contracts
that do not provide services to FSA.
Subpart 3437.6—Performance-Based
Acquisition
3437.670 Contract type.
Award-term contracting may be used
for performance-based contracts and
task orders that provide opportunities
for significant improvements and
benefits to the Department. Use of
award-term contracting must be
approved in advance by the HCA.
PART 3439—ACQUISITION OF
INFORMATION TECHNOLOGY
Subpart 3439.70—Department
Requirements for Acquisition of Information
Technology
Sec.
3439.701 Internet Protocol version 6.
3439.702 Department security
requirements.
3439.703 Federal desktop core
configuration (FDCC) compatibility.
Authority: 5 U.S.C. 301 and 20 U.S.C.
1018a.
Subpart 3439.70—Department
Requirements for Acquisition of
Information Technology
3439.701 Internet Protocol version 6.
The contracting officer must insert the
clause at 3452.239–70 (Internet protocol
version 6 (IPv6)) in all solicitations and
resulting contracts for hardware and
software.
3439.702 Department security
requirements.
The contracting officer must include
the solicitation provision in 3452.239–
71 (Notice to offerors of Department
security requirements) and the clause at
3452.239–72 (Department security
requirements) when contractor
employees will have access to
Department-controlled facilities or
space, or when the work (wherever
located) involves the design, operation,
repair, or maintenance of information
systems and access to sensitive but
unclassified information.
3439.703 Federal desktop core
configuration (FDCC) compatibility.
The contracting officer must include
the clause at 3452.239–73 (Federal
desktop core configuration (FDCC)
compatibility) in all solicitations and
contracts where software will be
developed, maintained, or operated on
any system using the FDCC
configuration.
SUBCHAPTER G—CONTRACT
MANAGEMENT
PART 3442—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
Subpart 3442.70—Contract Monitoring
Sec.
3442.7001 Litigation and claims clause.
3442.7002 Delays.
Subpart 3442.71—Accessibility of Meetings,
Conferences, and Seminars to Persons with
Disabilities
3442.7101 Policy and clause.
Authority: 5 U.S.C. 301.
Subpart 3442.70—Contract Monitoring
3442.7001 Litigation and claims clause.
The contracting officer must insert the
clause at 3452.242–70 (Litigation and
claims) in all solicitations and resultant
cost-reimbursement contracts.
3442.7002 Delays.
The contracting officer must insert the
clause at 3452.242–71 (Notice to the
Government of delays) in all
solicitations and contracts other than
purchase orders.
Subpart 3442.71—Accessibility of
Meetings, Conferences, and Seminars
to Persons with Disabilities
3442.7101 Policy and clause.
(a) It is the policy of ED that all
meetings, conferences, and seminars be
accessible to persons with disabilities.
(b) The contracting officer must insert
the clause at 3452.242–73 (Accessibility
of meetings, conferences, and seminars
to persons with disabilities) in all
solicitations and contracts..
PART 3443—CONTRACT
MODIFICATIONS
Subpart 3443.1—General
Sec.
3443.107 Contract clause.
Authority: 5 U.S.C. 301.
Subpart 3443.1—General
3443.107 Contract clause.
The contracting officer must insert a
clause substantially the same as
3452.243–70 (Key personnel) in all
solicitations and resultant cost reimbursement
contracts in which it will be essential for the contracting
officer to be notified that a change of
designated key personnel is to take
place by the contractor.
PART 3445—GOVERNMENT
PROPERTY
Subpart 3445.4—Contractor Use and Rental
of Government Property
Sec.
3445.405 Contracts with foreign
governments or international
organizations.
Authority: 5 U.S.C. 301.
Subpart 3445.4—Contractor Use and
Rental of Government Property
3445.405 Contracts with foreign
governments or international organizations.
Requests by, or for the benefit of,
foreign governments or international
organizations to use ED production and
research property must be approved by
the HCA. The HCA must determine the
amount of cost to be recovered or rental
charged, if any, based on the facts and
circumstances of each case.
PART 3447—TRANSPORTATION
Subpart 3447.7—Foreign Travel
Sec.
3447.701 Foreign travel clause.
Authority: 5 U.S.C. 301.
Subpart 3447.7—Foreign Travel
3447.701 Foreign travel clause.
The contracting officer must insert the
clause at 3452.247–70 (Foreign travel) in
all solicitations and resultant cost reimbursement
contracts.
SUBCHAPTER H—CLAUSES AND FORMS
PART 3452—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
Subpart 3452.2—Text of Provisions and
Clauses
Sec.
3452.201–70 Contracting Officer’s
Representative (COR).
3452.202–1 Definitions—Department of
Education.
3452.208–71 Printing.
3452.208–72 Paperwork Reduction Act.
3452.209–70 Conflict of interest.
certification.
3452.209–71 Conflict of interest.
3452.215–70 Release of restricted data.
3452.216–70 Additional cost principles.
3452.216–71 Award-Term.
3452.224–70 Release of information under the Freedom of Information Act.
3452.224–71 Notice about research
activities involving human subjects.
3452.224–72 Research activities involving
human subjects.
3452.227–70 Publication and publicity.
3452.227–71 Advertising of awards.
3452.227–72 Use and non-disclosure
agreement.
3452.227–73 Limitations on the use or
disclosure of Government-furnished
information marked with restrictive
legends.
3452.228–70 Required insurance.
3452.232–70 Limitation of cost or funds.
3452.232–71 Incremental funding.
3452.237–70 Services of consultants.
3452.237–71 Observance of administrative
closures.
3452.239–70 Internet protocol version 6
(IPv6).
3452.239–71 Notice to offerors of
Department security requirements.
3452.239–72 Department security
requirements.
3452.239–73 Federal desktop core
configuration (FDCC) compatibility.
3452.242–70 Litigation and claims.
3452.242–71 Notice to the Government of
delays.
3452.242–73 Accessibility of meetings,
conferences, and seminars to persons
with disabilities.
3452.243–70 Key personnel.
3452.247–70 Foreign travel.
Authority: 5 U.S.C. 301.
Subpart 3452.2—Text of Provisions
and Clauses
3452.201–70 Contracting Officer’s
Representative (COR).
As prescribed in 3401.670–3, insert a
clause substantially the same as:
Contracting officer′s Representative (COR)
(MAR 2011)
(a) The Contracting Officer’s
Representative (COR) is responsible for the
technical aspects of the project, technical
liaison with the contractor, and any other
responsibilities that are specified in the
contract. These responsibilities include
inspecting all deliverables, including reports,
and recommending acceptance or rejection to
the contracting officer.
(b) The COR is not authorized to make any
commitments or otherwise obligate the
Government or authorize any changes that
affect the contract price, terms, or conditions.
Any contractor requests for changes shall be
submitted in writing directly to the
contracting officer or through the COR. No
such changes shall be made without the
written authorization of the contracting
officer.
(c) The COR’s name and contact
information:
(d) The COR may be changed by the
Government at any time, but notification of
the change, including the name and address
of the successor COR, will be provided to the
contractor by the contracting officer in
writing.
(End of Clause)
3452.202–1 Definitions—Department of
Education.
As prescribed in 3402.201, insert the
following clause in solicitations and
contracts in which the clause at FAR
52.202–1 is required.
Definitions—Department of Education (MAR
2011)
(a) The definitions at FAR 2.101 are
appended with those contained in Education
Department Acquisition Regulations (EDAR)
3402.101.
(b) The EDAR is available via the Internet
at http://www.ed.gov/policy/fund/reg/
clibrary/edar.html.
(End of Clause)
3452.208–71 Printing.
As prescribed in 3408.870, insert the
following clause in all solicitations and
contracts other than purchase orders:
Printing (MAR 2011)
Unless otherwise specified in this contract,
the contractor shall not engage in, nor
subcontract for, any printing (as that term is
defined in Title I of the Government Printing
and Binding Regulations in effect on the
effective date of this contract) in connection
with the performance of work under this
contract; except that performance involving
the duplication of fewer than 5,000 units of
any one page, or fewer than 25,000 units in
the aggregate of multiple pages, shall not be
deemed to be printing. A unit is defined as
one side of one sheet, one color only (with
black counting as a color), with a maximum
image size of 103⁄4 by 141⁄4 inches on a
maximum paper size of 11 by 17 inches.
Examples of counting the number of units:
black plus one additional color on one side
of one page counts as two units. Three colors
(including black) on two sides of one page
count as six units.
(End of Clause)
3452.208–72 Paperwork Reduction Act.
As prescribed in 3408.871, insert the
following clause in all relevant
solicitations and contracts:
Paperwork Reduction Act (MAR 2011)
(a) The Paperwork Reduction Act of 1995
applies to contractors that collect information for use or disclosure by the Federal
government. If the contractor will collect
information requiring answers to identical
questions from 10 or more people, no plan,
questionnaire, interview guide, or other
similar device for collecting information may
be used without first obtaining clearance
from the Chief Acquisition Officer (CAO) or
the CAO’s designee within the Department of
Education (ED) and the Office of
Management and Budget (OMB). Contractors
and Contracting Officers’ Representatives
shall be guided by the provisions of 5 CFR
part 1320, Controlling Paperwork Burdens on
the Public, and should seek the advice of the
Department’s Paperwork Clearance Officer to
determine the procedures for acquiring CAO
and OMB clearance.
(b) The contractor shall obtain the required
clearances through the Contracting Officer’s
Representative before expending any funds
or making public contacts for the collection
of information described in paragraph (a) of
this clause. The authority to expend funds
and proceed with the collection shall be in
writing by the contracting officer. The
contractor must plan at least 120 days for
CAO and OMB clearance. Excessive delay
caused by the Government that arises out of
causes beyond the control and without the
fault or negligence of the contractor will be
considered in accordance with the Excusable
Delays or Default clause of this contract.
(End of Clause)
3452.209–70 Conflict of interest
certification.
As prescribed in 3409.507–1, insert
the following provision in all
solicitations anticipated to result in
contract actions for services above the
simplified acquisition threshold:
Conflict of Interest Certification (MAR 2011)
(a)(1) The contractor, subcontractor,
employee, or consultant, by signing the form
in this clause, certifies that, to the best of its
knowledge and belief, there are no relevant
facts or circumstances that could give rise to
an organizational or personal conflict of
interest, (see FAR Subpart 9.5 for
organizational conflicts of interest) (or
apparent conflict of interest), for the
organization or any of its staff, and that the
contractor, subcontractor, employee, or
consultant has disclosed all such relevant
information if such a conflict of interest
appears to exist to a reasonable person with
knowledge of the relevant facts (or if such a
person would question the impartiality of the
contractor, subcontractor, employee, or
consultant). Conflicts may arise in the
following situations:
(i) Unequal access to information. A
potential contractor, subcontractor,
employee, or consultant has access to nonpublic
information through its performance
on a government contract.
(ii) Biased ground rules. A potential
contractor, subcontractor, employee, or
consultant has worked, in one government
contract, or program, on the basic structure
or ground rules of another government
contract.
(iii) Impaired objectivity. A potential
contractor, subcontractor, employee, or
consultant, or member of their immediate
family (spouse, parent, or child) has financial
or other interests that would impair, or give
the appearance of impairing, impartial
judgment in the evaluation of government
programs, in offering advice or
recommendations to the government, or in
providing technical assistance or other
services to recipients of Federal funds as part
of its contractual responsibility. ‘‘Impaired
objectivity’’ includes but is not limited to the
following situations that would cause a
reasonable person with knowledge of the
relevant facts to question a person’s
objectivity:
(A) Financial interests or reasonably
foreseeable financial interests in or in
connection with products, property, or
services that may be purchased by an
educational agency, a person, organization,
or institution in the course of implementing
any program administered by the
Department;
(B) Significant connections to teaching
methodologies or approaches that might
require or encourage the use of specific
products, property, or services; or
(C) Significant identification with
pedagogical or philosophical viewpoints that
might require or encourage the use of a
specific curriculum, specific products,
property, or services.
(2) Offerors must provide the disclosure
described above on any actual or potential
conflict of interest (or apparent conflict of
interest) regardless of their opinion that such
a conflict or potential conflict (or apparent
conflict of interest) would not impair their
objectivity.
(3) In a case in which an actual or potential
conflict (or apparent conflict of interest) is
disclosed, the Department will take
appropriate actions to eliminate or address
the actual or potential conflict, including but
not limited to mitigating or neutralizing the
conflict, when appropriate, through such
means as ensuring a balance of views,
disclosure with the appropriate disclaimers,
or by restricting or modifying the work to be
performed to avoid or reduce the conflict. In
this clause, the term ‘‘potential conflict’’
means reasonably foreseeable conflict of
interest.
(b) The contractor, subcontractor,
employee, or consultant agrees that if
‘‘impaired objectivity’’, or an actual or
potential conflict of interest (or apparent
conflict of interest) is discovered after the
award is made, it will make a full disclosure
in writing to the contracting officer. This
disclosure shall include a description of
actions that the contractor has taken or
proposes to take to avoid, mitigate, or
neutralize the actual or potential conflict (or
apparent conflict of interest).
(c) Remedies. The Government may
terminate this contract for convenience, in
whole or in part, if it deems such termination
necessary to avoid the appearance of a
conflict of interest. If the contractor was
aware of a potential conflict of interest prior
to award or discovered an actual or potential
conflict after award and did not disclose or
misrepresented relevant information to the
contracting officer, the Government may
terminate the contract for default, or pursue
such other remedies as may be permitted by
law or this contract. These remedies include
imprisonment for up to five years for
violation of 18 U.S.C. 1001 and fines of up
to $5000 for violation of 31 U.S.C. 3802.
Further remedies include suspension or
debarment from contracting with the Federal
government. The contractor may also be
required to reimburse the Department for
costs the Department incurs arising from
activities related to conflicts of interest. An
example of such costs would be those
incurred in processing Freedom of
Information Act requests related to a conflict
of interest.
(d) In cases where remedies short of
termination have been applied, the
contractor, subcontractor, employee, or
consultant agrees to eliminate the
organizational conflict of interest, or mitigate
it to the satisfaction of the contracting officer.
(e) The contractor further agrees to insert
in any subcontract or consultant agreement
hereunder, provisions that conform
substantially to the language of this clause,
including specific mention of potential
remedies and this paragraph (e).
(f) Conflict of Interest Certification.
The offeror, [insert name of offeror], hereby
certifies that, to the best of its knowledge and
belief, there are no present or currently
planned interests (financial, contractual,
organizational, or otherwise) relating to the
work to be performed under the contract or
task order resulting from Request for
Proposal No. [insert number] that would
create any actual or potential conflict of
interest (or apparent conflicts of interest)
(including conflicts of interest for immediate
family members: spouses, parents, children)
that would impinge on its ability to render
impartial, technically sound, and objective
assistance or advice or result in it being given
an unfair competitive advantage. In this
clause, the term ‘‘potential conflict’’ means
reasonably foreseeable conflict of interest.
The offeror further certifies that it has and
will continue to exercise due diligence in
identifying and removing or mitigating, to the
Government’s satisfaction, such conflict of
interest (or apparent conflict of interest).
Offeror’s Name________________
RFP/Contract No________________
Signature ________________
Title ________________
Date ________________
(End of Clause)
3452.209–71 Conflict of interest.
As prescribed in 3409.507–2, insert
the following clause in all contracts for
services above the simplified
acquisition threshold:
Conflict of Interest (MAR 2011)
(a)(1) The contractor, subcontractor,
employee, or consultant, has certified that, to
the best of its knowledge and belief, there are
no relevant facts or circumstances that could
give rise to an organizational or personal
conflict of interest (see FAR Subpart 9.5 for
organizational conflicts of interest) (or
apparent conflict of interest) for the
organization or any of its staff, and that the
contractor, subcontractor, employee, or
consultant has disclosed all such relevant
information if such a conflict of interest
appears to exist to a reasonable person with
knowledge of the relevant facts (or if such a
person would question the impartiality of the
contractor, subcontractor, employee, or
consultant). Conflicts may arise in the
following situations:
(i) Unequal access to information—A
potential contractor, subcontractor,
employee, or consultant has access to nonpublic
information through its performance
on a government contract.
(ii) Biased ground rules—A potential
contractor, subcontractor, employee, or
consultant has worked, in one government
contract, or program, on the basic structure
or ground rules of another government
contract.
(iii) Impaired objectivity—A potential
contractor, subcontractor, employee, or
consultant, or member of their immediate
family (spouse, parent, or child) has financial
or other interests that would impair, or give
the appearance of impairing, impartial
judgment in the evaluation of government
programs, in offering advice or
recommendations to the government, or in
providing technical assistance or other
services to recipients of Federal funds as part
of its contractual responsibility. ‘‘Impaired
objectivity’’ includes but is not limited to the
following situations that would cause a
reasonable person with knowledge of the
relevant facts to question a person’s
objectivity:
(A) Financial interests or reasonably
foreseeable financial interests in or in
connection with products, property, or
services that may be purchased by an
educational agency, a person, organization,
or institution in the course of implementing
any program administered by the
Department;
(B) Significant connections to teaching
methodologies that might require or
encourage the use of specific products,
property, or services; or
(C) Significant identification with
pedagogical or philosophical viewpoints that
might require or encourage the use of a
specific curriculum, specific products,
property, or services.
(2) Offerors must provide the disclosure
described above on any actual or potential
conflict (or apparent conflict of interest) of
interest regardless of their opinion that such
a conflict or potential conflict (or apparent
conflict of interest) would not impair their
objectivity.
(3) In a case in which an actual or potential
conflict (or apparent conflict of interest) is
disclosed, the Department will take
appropriate actions to eliminate or address
the actual or potential conflict (or apparent
conflict of interest), including but not limited
to mitigating or neutralizing the conflict,
when appropriate, through such means as
ensuring a balance of views, disclosure with
the appropriate disclaimers, or by restricting
or modifying the work to be performed to
avoid or reduce the conflict. In this clause,
the term ‘‘potential conflict’’ means
reasonably foreseeable conflict of interest.
(b) The contractor, subcontractor,
employee, or consultant agrees that if
‘‘impaired objectivity’’, or an actual or
potential conflict of interest (or apparent
conflict of interest) is discovered after the
award is made, it will make a full disclosure
in writing to the contracting officer. This
disclosure shall include a description of
actions that the contractor has taken or
proposes to take, after consultation with the
contracting officer, to avoid, mitigate, or
neutralize the actual or potential conflict (or
apparent conflict of interest).
(c) Remedies. The Government may
terminate this contract for convenience, in
whole or in part, if it deems such termination
necessary to avoid the appearance of a
conflict of interest. If the contractor was
aware of a potential conflict of interest prior
to award or discovered an actual or potential
conflict (or apparent conflict of interest) after
award and did not disclose or misrepresented
relevant information to the contracting
officer, the Government may terminate the
contract for default, or pursue such other
remedies as may be permitted by law or this
contract. These remedies include
imprisonment for up to five years for
violation of 18 U.S.C. 1001 and fines of up
to $5,000 for violation of 31 U.S.C. 3802.
Further remedies include suspension or
debarment from contracting with the Federal
government. The contractor may also be
required to reimburse the Department for
costs the Department incurs arising from
activities related to conflicts of interest. An
example of such costs would be those
incurred in processing Freedom of
Information Act requests related to a conflict
of interest.
(d) In cases where remedies short of
termination have been applied, the
contractor, subcontractor, employee, or
consultant agrees to eliminate the
organizational conflict of interest, or mitigate
it to the satisfaction of the contracting officer.
(e) The contractor further agrees to insert
in any subcontract or consultant agreement
hereunder, provisions that conform
substantially to the language of this clause,
including specific mention of potential
remedies and this paragraph (e).
(End of Clause)
3452.215–70 Release of restricted data.
As prescribed in 3415.209, insert the
following provision in solicitations:
Release of Restricted Data (MAR 2011)
(a) Offerors are hereby put on notice that
regardless of their use of the legend set forth
in FAR 52.215–1(e), Restriction on Disclosure
and Use of Data, the Government may be
required to release certain data contained in
the proposal in response to a request for the
data under the Freedom of Information Act
(FOIA). The Government’s determination to
withhold or disclose a record will be based
upon the particular circumstance involving
the data in question and whether the data
may be exempted from disclosure under
FOIA. In accordance with Executive Order
12600 and to the extent permitted by law, the
Government will notify the offeror before it
releases restricted data.
(b) By submitting a proposal or quotation
in response to this solicitation:
(1) The offeror acknowledges that the
Department may not be able to withhold or
deny access to data requested pursuant to
FOIA and that the Government’s FOIA
officials shall make that determination;
(2) The offeror agrees that the Government
is not liable for disclosure if the Department
has determined that disclosure is required by
FOIA;
(3) The offeror acknowledges that
proposals not resulting in a contract remain
subject to FOIA; and
(4) The offeror agrees that the Government
is not liable for disclosure or use of
unmarked data and may use or disclose the
data for any purpose, including the release of
the information pursuant to requests under
FOIA.
(c) Offerors are cautioned that the
Government reserves the right to reject any
proposal submitted with:
(1) A restrictive legend or statement
differing in substance from the one required
by the solicitation provision in FAR 52.215–
1(e), Restriction on Disclosure and Use of
Data, or
(2) A statement taking exceptions to the
terms of paragraphs (a) or (b) of this
provision.
(End of Provision)
3452.216–70 Additional cost principles.
Insert the following clause in
solicitations and contracts as prescribed
in 3416.307(b):
Additional Cost Principles (MAR 2011)
(a) Bid and Proposal Costs. Bid and
proposal costs are the immediate costs of
preparing bids, proposals, and applications
for potential Federal and non-Federal grants,
contracts, and other agreements, including
the development of scientific, cost, and other
data needed to support the bids, proposals,
and applications. Bid and proposal costs of
the current accounting period are allowable
as indirect costs; bid and proposal costs of
past accounting periods are unallowable as
costs of the current period. However, if the
organization’s established practice is to treat
these costs by some other method, they may
be accepted if they are found to be reasonable
and equitable. Bid and proposal costs do not
include independent research and
development costs or pre-award costs.
(b) Independent research and development
costs. Independent research and
development is research and development
that is not sponsored by Federal and non-
Federal grants, contracts, or other
agreements. Independent research and
development shall be allocated its
proportionate share of indirect costs on the
same basis as the allocations of indirect costs
of sponsored research and development. The
costs of independent research and
development, including its proportionate
share of indirect costs, are unallowable.
(End of Clause)
3452.216–71 Award-Term.
As prescribed in 3416.470, insert a
clause substantially the same as the
following in all solicitations and
contracts where an award-term
arrangement is anticipated:
Award–Term (MAR 2011)
(a) The initial [insert initial contract term]
contract term or ordering period may be
extended or reduced on the basis of
contractor performance, resulting in a
contract term or an ordering period lasting at
least [insert minimum contract term] years
from the date of contract award, to a
maximum of [insert maximum contract term]
years after the date of contract award.
(b) The contractor’s performance will be
measured against stated standards by the
performance monitors, who will report their
findings to the Award Term Determining
Official (or Board).
(c) Bilateral changes may be made to the
award-term plan at any time. If agreement
cannot be made within 60 days, the
Government reserves the right to make
unilateral changes prior to the start of an
award-term period.
(d) The contractor will submit a brief
written self-evaluation of its performance
within X days after the end of the evaluation
period. The self-evaluation report shall not
exceed seven pages, and it may be considered
in the Award Term Review Board’s (ATRB’s)
(or Term Determining Official’s) evaluation
of the contractor’s performance during this
period.
(e) The contract term or ordering period
may be unilaterally modified to reflect the
ATRB’s decision. If the contract term or
ordering period has one year remaining, the
operation of the contract award-term feature
will cease and the contract term or ordering
period will not extend beyond the maximum
term stated in the contract.
(f) Award terms that have not begun may
be cancelled (rather than terminated), should
the need for the items or services no longer
exists. No equitable adjustments to the
contract price are applicable, as this is not
the same procedure as a termination for
convenience.
(g) The decisions made by the ATRB or
Term Determining Official may be made
unilaterally. Alternate Dispute Resolution
procedures shall be utilized when
appropriate.
(End of Clause)
3452.224–70 Release of information under
the Freedom of Information Act.
As prescribed in 3424.203, insert the
following clause in solicitations and
contracts.
Release of Information Under the Freedom
of Information Act (MAR 2011)
By entering into a contract with the
Department of Education, the contractor,
without regard to proprietary markings,
approves the release of the entire contract
and all related modifications and task orders
including, but not limited to:
(1) Unit prices, including labor rates;
(2) Statements of Work/Performance Work
Statements generated by the contractor;
(3) Performance requirements, including
incentives, performance standards, quality
levels, and service level agreements;
(4) Reports, deliverables, and work
products delivered in performance of the
contract (including quality of service,
performance against requirements/standards/
service level agreements);
(5) Any and all information, data, software,
and related documentation first provided
under the contract;
(6) Proposals or portions of proposals
incorporated by reference; and
(7) Other terms and conditions.
(End of Clause)
3452.224–71 Notice about research
activities involving human subjects.
As prescribed in 3424.170, insert the
following provision in any solicitation
where a resultant contract will include,
or is likely to include, research activities
involving human subjects covered
under 34 CFR part 97:
Notice About Research Activities Involving
Human Subjects (MAR 2011)
(a) Applicable Regulations. In accordance
with Department of Education regulations on
the protection of human subjects, title 34,
Code of Federal Regulations, part 97 (‘‘the
regulations’’), the contractor, any
subcontractors, and any other entities
engaged in covered (nonexempt) research
activities are required to establish and
maintain procedures for the protection of
human subjects.
(b) Definitions.
(1) The regulations define
research as ‘‘a systematic investigation,
including research development, testing and
evaluation, designed to develop or contribute
to generalizable knowledge.’’ (34 CFR
97.102(d)). If an activity follows a deliberate
plan designed to develop or contribute to
generalizable knowledge, it is research.
Research includes activities that meet this
definition, whether or not they are conducted
under a program considered research for
other purposes. For example, some
demonstration and service programs may
include research activities.
(2) The regulations define a human subject
as a living individual about whom an
investigator (whether professional or student)
conducting research obtains data through
intervention or interaction with the
individual, or obtains identifiable private
information. (34 CFR 97.102(f)). The
definition of a human subject is met if an
activity involves obtaining—
(i) Information about a living person by—
(A) Manipulating that person’s
environment, as might occur when a new
instructional technique is tested; or
(B) Communicating or interacting with the
individual, as occurs with surveys and
interviews; or
(ii) Private information about a living
person in such a way that the information
can be linked to that individual (the identity
of the subject is or may be readily determined
by the investigator or associated with the
information). Private information includes
information about behavior that occurs in a
context in which an individual can
reasonably expect that no observation or
recording is taking place, and information
that has been provided for specific purposes
by an individual and that an individual can
reasonably expect will not be made public
(for example, a school health record).
(c) Exemptions. The regulations provide
exemptions from coverage for activities in
which the only involvement of human
subjects will be in one or more of the
categories set forth in 34 CFR 97.101(b)(1)–
(6). However, if the research subjects are
children, the exemption at 34 CFR
97.101(b)(2) (i.e., research involving the use
of educational tests, survey procedures,
interview procedures or observation of public
behavior) is modified by 34 CFR 97.401(b), as
explained in paragraph (d) of this provision.
Research studies that are conducted under a
Federal statute that requires without
exception that the confidentiality of the
personally identifiable information will be
maintained throughout the research and
thereafter, e.g., the Institute of Education
Sciences confidentiality statute, 20 U.S.C.
9573, are exempt under 34 CFR
97.101(b)(3)(ii).
(d) Children as research subjects.
Paragraph (a) of 34 CFR 97.402 of the
regulations defines children as ‘‘persons who
have not attained the legal age for consent to
treatments or procedures involved in the
research, under the applicable law of the
jurisdiction in which the research will be
conducted.’’ Paragraph (b) of 34 CFR 97.401
of the regulations provides that, if the
research involves children as subjects—
(1) The exemption in 34 CFR 97.101(b)(2)
does not apply to activities involving—
(i) Survey or interview procedures
involving children as subjects; or
(ii) Observations of public behavior of
children in which the investigator or
investigators will participate in the activities
being observed.
(2) The exemption in 34 CFR 97.101(b)(2)
continues to apply, unmodified by 34 CFR
97.401(b), to—
(i) Educational tests; and
(ii) Observations of public behavior in
which the investigator or investigators will
not participate in the activities being
observed.
(e) Proposal Instructions. An offeror
proposing to do research that involves
human subjects must provide information to
the Department on the proposed exempt and
nonexempt research activities. The offeror
should submit this information as an
attachment to its technical proposal. No
specific page limitation applies to this
requirement, but the offeror should be brief
and to the point.
(1) For exempt research activities involving
human subjects, the offeror should identify
the exemption(s) that applies and provide
sufficient information to allow the
Department to determine that the designated
exemption(s) is appropriate. Normally, the
narrative on the exemption(s) can be
provided in one paragraph.
(2) For nonexempt research activities
involving human subjects, the offeror must
cover the following seven points in the
information it provides to the Department:
(i) Human subjects’ involvement and
characteristics: Describe the characteristics of
the subject population, including their
anticipated number, age range, and health
status. Identify the criteria for inclusion or
exclusion of any subpopulation. Explain the
rationale for the involvement of special
classes of subjects, such as children, children
with disabilities, adults with disabilities,
persons with mental disabilities, pregnant
women, institutionalized individuals, or
others who are likely to be vulnerable.
(ii) Sources of materials: Identify the
sources of research material obtained from or
about individually identifiable living human
subjects in the form of specimens, records, or
data.
(iii) Recruitment and informed consent:
Describe plans for the recruitment of subjects
and the consent procedures to be followed.
(iv) Potential risks: Describe potential risks
(physical, psychological, social, financial,
legal, or other) and assess their likelihood
and seriousness. Where appropriate, discuss
alternative treatments and procedures that
might be advantageous to the subjects.
(v) Protection against risk: Describe the
procedures for protecting against or
minimizing potential risks, including risks to
confidentiality, and assess their likely
effectiveness. Where appropriate, discuss
provisions for ensuring necessary medical or
professional intervention in the event of
adverse effects to the subjects. Also, where
appropriate, describe the provisions for
monitoring the data collected to ensure the
safety of the subjects.
(vi) Importance of knowledge to be gained:
Discuss why the risks to the subjects are
reasonable in relation to the importance of
the knowledge that may reasonably be
expected to result.
(vii) Collaborating sites: If research
involving human subjects will take place at
collaborating site(s), name the sites and
briefly describe their involvement or role in
the research. Normally, the seven-point
narrative can be provided in two pages or
less.
(3) If a reasonable potential exists that a
need to conduct research involving human
subjects may be identified after award of the
contract and the offeror’s proposal contains
no definite plans for such research, the
offeror should briefly describe the
circumstances and nature of the potential
research involving human subjects.
(f) Assurances and Certifications.
(1) In accordance with the regulations and the
terms of this provision, all contractors and
subcontractors that will be engaged in
covered human subjects research activities
shall be required to comply with the
requirements for Assurances and
Institutional Review Board approvals, as set
forth in the contract clause 3452.224–72
(Research activities involving human
subjects).
(2) The contracting officer reserves the
right to require that the offeror have or apply
for the assurance and provide documentation
of Institutional Review Board (IRB) approval
of the research prior to award.
(g)(1) The regulations, and related
information on the protection of human
research subjects, can be found on the
Department’s protection of human subjects in
research Web site: http://ed.gov/about/
offices/list/ocfo/humansub.html.
(2) Offerors may also contact the following
office to obtain information about the
regulations for the protection of human
subjects and related policies and guidelines:
Protection of Human Subjects Coordinator,
U.S. Department of Education, Office of the
Chief Financial Officer, Financial
Management Operations, 400 Maryland
Avenue, SW., Washington, DC 20202–4331,
Telephone: (202) 245 8090.
(End of Provision)
3452.224–72 Research activities involving
human subjects.
As prescribed in 3424.170, insert the
following clause in any contract that
includes research activities involving
human subjects covered under 34 CFR
part 97:
Research Activities Involving Human
Subjects (MAR 2011)
(a) In accordance with Department of
Education regulations on the protection of
human subjects in research, title 34, Code of
Federal Regulations, part 97 (‘‘the
regulations’’), the contractor, any
subcontractors, and any other entities
engaged in covered (nonexempt) research
activities are required to establish and
maintain procedures for the protection of
human subjects. The definitions in 34 CFR
97.102 apply to this clause. As used in this
clause, covered research means research
involving human subjects that is not exempt
under 34 CFR 97.101(b) and 97.401(b).
(b) If ED determines that proposed research
activities involving human subjects are
covered (i.e., not exempt under the
regulations), the contracting officer or
contacting officer’s designee will require the
contractor to apply for the Federal Wide
Assurance from the Office for Human
Research Protections, U.S. Department of
Health and Human Services, if the contractor
does not already have one on file. The
contracting officer will also require that the
contractor obtain and send to the Department
documentation of Institutional Review Board
(IRB) review and approval of the research.
(c) In accordance with 34 CFR part 97, all
subcontractors and any legally separate entity
(neither owned nor operated by the
contractor) that will be engaged in covered
research activities under or related to this
contract shall be required to comply with the
requirements for assurances and IRB
approvals. The contractor must include the
substance of this clause, including paragraph (c) of this clause, in all subcontracts, and
must notify any other entities engaged in the
covered research activities of their
responsibility to comply with the regulations.
(d) Under no condition shall the contractor
conduct, or allow to be conducted, any
covered research activity involving human
subjects prior to the Department’s receipt of
the certification that the research has been
reviewed and approved by the IRB. (34 CFR
97.103(f).) No covered research involving
human subjects shall be initiated under this
contract until the contractor has provided the
contracting officer (or the contracting
officer’s designee) a properly completed
certification form certifying IRB review and
approval of the research activity, and the
contracting officer or designee has received
the certification. This restriction applies to
the activities of each participating entity.
(e) In accordance with 34 CFR 97.109(e), an
IRB must conduct continuing reviews of
covered research activities at intervals
appropriate to the degree of risk, but not less
than once a year. Covered research activities
that are expected to last one year or more are
therefore subject to review by an IRB at least
once a year.
(1) For each covered activity under this
contract that requires continuing review, the
contractor shall submit an annual written
representation to the contracting officer (or
the contracting officer’s designee) stating
whether covered research activities have
been reviewed and approved by an IRB
within the previous 12 months. The
contractor may use the form titled ‘‘Protection
of Human Subjects: Assurance Identification/
Certification/Declaration of Exemption’’ for
this representation. For multi-institutional
projects, the contractor shall provide this
information on its behalf and on behalf of
any other entity engaged in covered research
activities for which continuing IRB reviews
are required.
(2) If the IRB disapproves, suspends,
terminates, or requires modification of any
covered research activities under this
contract, the contractor shall immediately
notify the contracting officer in writing of the
IRB’s action.
(f) The contractor shall bear full
responsibility for performing as safely as is
feasible all activities under this contract
involving the use of human subjects and for
complying with all applicable regulations
and requirements concerning human
subjects. No one (neither the contractor, nor
any subcontractor, agent, or employee of the
contractor, nor any other person or
organization, institution, or group of any
kind whatsoever) involved in the
performance of such activities shall be
deemed to constitute an agent or employee of
the Department of Education or of the
Federal government with respect to such
activities. The contractor agrees to discharge
its obligations, duties, and undertakings and
the work pursuant thereto, whether requiring
professional judgment or otherwise, as an
independent contractor without imputing
liability on the part of the Government for the
acts of the contractor and its employees.
(g) Upon discovery of any noncompliance
with any of the requirements or standards
stated in paragraphs (b) and (c) of this clause,
the contractor shall immediately correct the
deficiency. If at any time during performance
of this contract, the contracting officer
determines, in consultation with the
Protection of Human Subjects Coordinator,
Office of the Chief Financial Officer, or the
sponsoring office, that the contractor is not
in compliance with any of the requirements
or standards stated in paragraphs (b) and (c)
of this clause, the contracting officer may
immediately suspend, in whole or in part,
work and further payments under this
contract until the contractor corrects such
noncompliance. Notice of the suspension
may be communicated by telephone and
confirmed in writing.
(h) The Government may terminate this
contract, in full or in part, for failure to fully
comply with any regulation or requirement
related to human subjects involved in
research. Such termination may be in lieu of
or in addition to suspension of work or
payment. Nothing herein shall be construed
to limit the Government’s right to terminate
the contract for failure to fully comply with
such requirements.
(i) The regulations, and related information
on the protection of human research subjects,
can be found on the Department’s protection
of human subjects in research Web site:
http://ed.gov/about/offices/list/ocfo/
humansub.html.
Contractors may also contact the following
office to obtain information about the
regulations for the protection of human
subjects and related policies and guidelines:
Protection of Human Subjects Coordinator,
U.S. Department of Education, Office of the
Chief Financial Officer, Financial
Management Operations, 400 Maryland
Avenue, SW., Washington, DC 20202–4331,
Telephone: (202) 245–8090.
(End of Clause)
3452.227–70 Publication and publicity.
As prescribed in 3427.409, insert the
following clause in all solicitations and
contracts other than purchase orders:
Publication and Publicity (MAR 2011)
(a) Unless otherwise specified in this
contract, the contractor is encouraged to
publish and otherwise promote the results of
its work under this contract. A copy of each
article or work submitted by the contractor
for publication shall be promptly sent to the
contracting officer’s representative. The
contractor shall also inform the
representative when the article or work is
published and furnish a copy in the
published form.
(b) The contractor shall acknowledge the
support of the Department of Education in
publicizing the work under this contract in
KH9S0YB1PROD with RULES2
any medium. This acknowledgement shall
read substantially as follows:
‘‘This project has been funded at least in
part with Federal funds from the U.S.
Department of Education under contract
number [Insert number]. The content of this
publication does not necessarily reflect the
views or policies of the U.S. Department of
Education nor does mention of trade names,
commercial products, or organizations imply
endorsement by the U.S. Government.’’
(End of Clause)
3452.227–71 Advertising of awards.
As prescribed in 3427.409, insert the
following clause in all solicitations and
contracts other than purchase orders:
Advertising of Awards (MAR 2011)
The contractor agrees not to refer to awards
issued by, or products or services delivered
to, the Department of Education in
commercial advertising in such a manner as
to state or imply that the product or service
provided is endorsed by the Federal
government or is considered by the Federal
government to be superior to other products
or services.
(End of Clause)
3452.227–72 Use and Non-Disclosure
Agreement.
As prescribed in 3427.409, insert the
following clause in all contracts over the
simplified acquisition threshold, and in
contracts under the simplified
acquisition threshold as appropriate:
Use and Non-Disclosure Agreement (MAR
2011)
(a) Except as provided in paragraph
(b) of this clause, proprietary data, technical data,
or computer software delivered to the
Government with restrictions on use,
modification, reproduction, release,
performance, display, or disclosure may not
be provided to third parties unless the
intended recipient completes and signs the
use and non-disclosure agreement in
paragraph
(c) of this clause prior to release
or disclosure of the data.
(1) The specific conditions under which an
intended recipient will be authorized to use,
modify, reproduce, release, perform, display,
or disclose proprietary data or technical data
subject to limited rights, or computer
software subject to restricted rights must be
stipulated in an attachment to the use and
non-disclosure agreement.
(2) For an intended release, disclosure, or
authorized use of proprietary data, technical
data, or computer software subject to special
license rights, modify paragraph (c)(1)(iv) of
this clause to enter the conditions, consistent
with the license requirements, governing the
recipient’s obligations regarding use,
modification, reproduction, release,
performance, display, or disclosure of the
data or software.
(b) The requirement for use and nondisclosure
agreements does not apply to
Government contractors that require access to
a third party’s data or software for the
performance of a Government contract that
contains the 3452.227–73 clause, Limitations
on the use or disclosure of Government furnished
information marked with restrictive legends.
(c) The prescribed use and non-disclosure
agreement is:
Use and Non-Disclosure Agreement
The undersigned, [Insert Name], an
authorized representative of the [Insert
Company Name], (which is hereinafter
referred to as the ‘‘recipient’’) requests the
Government to provide the recipient with
proprietary data, technical data, or computer
software (hereinafter referred to as ‘‘data’’) in
which the Government’s use, modification,
reproduction, release, performance, display,
or disclosure rights are restricted. Those data
are identified in an attachment to this
agreement. In consideration for receiving
such data, the recipient agrees to use the data
strictly in accordance with this agreement.
(1) The recipient shall—
(i) Use, modify, reproduce, release,
perform, display, or disclose data marked
with Small Business Innovative Research
(SBIR) data rights legends only for
government purposes and shall not do so for
any commercial purpose. The recipient shall
not release, perform, display, or disclose
these data, without the express written
permission of the contractor whose name
appears in the restrictive legend (the
contractor), to any person other than its
subcontractors or suppliers, or prospective
subcontractors or suppliers, who require
these data to submit offers for, or perform,
contracts with the recipient. The recipient
shall require its subcontractors or suppliers,
or prospective subcontractors or suppliers, to
sign a use and non-disclosure agreement
prior to disclosing or releasing these data to
such persons. Such an agreement must be
consistent with the terms of this agreement.
(ii) Use, modify, reproduce, release,
perform, display, or disclose proprietary data
or technical data marked with limited rights
legends only as specified in the attachment
to this agreement. Release, performance,
display, or disclosure to other persons is not
authorized unless specified in the attachment
to this agreement or expressly permitted in
writing by the contractor.
(iii) Use computer software marked with
restricted rights legends only in performance
of contract number [insert contract
number(s)]. The recipient shall not, for
example, enhance, decompile, disassemble,
or reverse engineer the software; time share;
or use a computer program with more than
one computer at a time. The recipient may
not release, perform, display, or disclose
such software to others unless expressly
permitted in writing by the licensor whose
name appears in the restrictive legend.
(iv) Use, modify, reproduce, release,
perform, display, or disclose data marked
with special license rights legends [To be
completed by the contracting officer. See
paragraph (a)(2) of this clause. Omit if none
of the data requested is marked with special
license rights legends].
(2) The recipient agrees to adopt or
establish operating procedures and physical
security measures designed to protect these
data from inadvertent release or disclosure to
unauthorized third parties.
(3) The recipient agrees to accept these
data ‘‘as is’’ without any Government
representation as to suitability for intended
use or warranty whatsoever. This disclaimer
does not affect any obligation the
Government may have regarding data
specified in a contract for the performance of
that contract.
(4) The recipient may enter into any
agreement directly with the contractor with
respect to the use, modification,
reproduction, release, performance, display,
or disclosure of these data.
(5) The recipient agrees to indemnify and
hold harmless the Government, its agents,
and employees from every claim or liability,
including attorneys fees, court costs, and
expenses arising out of, or in any way related
to, the misuse or unauthorized modification,
reproduction, release, performance, display,
or disclosure of data received from the
Government with restrictive legends by the
recipient or any person to whom the
recipient has released or disclosed the data.
(6) The recipient is executing this
agreement for the benefit of the contractor.
The contractor is a third party beneficiary of
this agreement who, in addition to any other
rights it may have, is intended to have the
rights of direct action against the recipient or
any other person to whom the recipient has
released or disclosed the data, to seek
damages from any breach of this agreement,
or to otherwise enforce this agreement.
(7) The recipient agrees to destroy these
data, and all copies of the data in its
possession, no later than 30 days after the
date shown in paragraph (8) of this
agreement, to have all persons to whom it
released the data do so by that date, and to
notify the contractor that the data have been
destroyed.
(8) This agreement shall be effective for the
period commencing with the recipient’s
execution of this agreement and ending upon
[Insert Date].
The obligations imposed by this
agreement shall survive the expiration or
termination of the agreement.
[Insert business name.]
Recipient’s Business Name
[Have representative sign.]
Authorized Representative
[Insert date.]
Date
[Insert name and title.]
Representative’s Typed Name and Title
(End of Clause)
3452.227–73 Limitations on the use or
disclosure of Government-furnished
information marked with restrictive legends.
As prescribed in 3427.409, insert the
following clause in all contracts of third
party vendors who require access to
Government-furnished information
including other contractors’ technical
data, proprietary information, or
software:
Limitations on The Use Or Disclosure of
Government-Furnished Information Marked
With Restrictive Legends (MAR 2011)
(a) For contracts under which data are to
be produced, furnished, or acquired, the
terms limited rights and restricted rights are
defined in the rights in data—general clause
(FAR 52.227–14).
(b) Proprietary data, technical data, or
computer software provided to the contractor
as Government-furnished information (GFI)
under this contract may be subject to
restrictions on use, modification,
reproduction, release, performance, display,
or further disclosure.
(1) Proprietary data with legends that serve
to restrict disclosure or use of data. The
contractor shall use, modify, reproduce,
perform, or display proprietary data received
from the Government with proprietary or
restrictive legends only in the performance of
this contract. The contractor shall not,
without the express written permission of the
party who owns the data, release, or disclose
such data or software to any person.
(2) GFI marked with limited or restricted
rights legends. The contractor shall use,
modify, reproduce, perform, or display
technical data received from the Government
with limited rights legends or computer
software received with restricted rights
legends only in the performance of this
contract. The contractor shall not, without
the express written permission of the party
whose name appears in the legend, release or
disclose such data or software to any person.
(3) GFI marked with specially negotiated
license rights legends. The contractor shall
use, modify, reproduce, release, perform, or
display proprietary data, technical data, or
computer software received from the
Government with specially negotiated license
legends only as permitted in the license.
Such data or software may not be released or
disclosed to other persons unless permitted
by the license and, prior to release or
disclosure, the intended recipient has
completed the use and non-disclosure
agreement. The contractor shall modify
paragraph (c)(1)(iii) of the use and nondisclosure
agreement (3452.227–72) to reflect
the recipient’s obligations regarding use,
modification, reproduction, release,
performance, display, and disclosure of the
data or software.
(c) Indemnification and creation of third
party beneficiary rights.
(1) The contractor agrees to indemnify and
hold harmless the Government, its agents,
and employees from every claim or liability,
including attorneys fees, court costs, and
expenses, arising out of, or in any way
related to, the misuse or unauthorized
modification, reproduction, release,
performance, display, or disclosure of
proprietary data, technical data, or computer
software received from the Government with
restrictive legends by the contractor or any
person to whom the contractor has released
or disclosed such data or software.
(2) The contractor agrees that the party
whose name appears on the restrictive
legend, in addition to any other rights it may
have, is a third party beneficiary who has the
right of direct action against the contractor,
or any person to whom the contractor has
released or disclosed such data or software,
for the unauthorized duplication, release, or
disclosure of proprietary data, technical data,
or computer software subject to restrictive
legends.
(End of Clause)
3452.228–70 Required insurance.
As prescribed in 3428.311–2, insert
the following clause in all solicitations
and resultant cost-reimbursement
contracts:
Required Insurance (MAR 2011)
(a) The contractor shall procure and
maintain such insurance as required by law
or regulation, including but not limited to the
requirements of FAR Subpart 28.3. Prior
written approval of the contracting officer
shall be required with respect to any
insurance policy, the premiums for which
the contractor proposes to treat as a direct
cost under this contract, and with respect to
any proposed qualified program of selfinsurance.
The terms of any other insurance
policy shall be submitted to the contracting
officer for approval upon request.
(b) Unless otherwise authorized in writing
by the contracting officer, the contractor shall
not procure or maintain for its own
protection any insurance covering loss or
destruction of, or damage to, Government
property.
(End of Clause)
3452.232–70 Limitation of cost or funds.
The following clause shall be inserted
in all contracts that include a Limitation
of cost or Limitation of funds clause in
accordance with 3432.705–2:
Limitation of Cost or Funds (MAR 2011)
(a) Under the circumstances in FAR
32.704(a)(1), the contractor shall submit the
following information in writing to the
contracting officer:
(1) Name and address of the contractor.
(2) Contract number and expiration date.
(3) Contract items and amounts that will
exceed the estimated cost of the contract or
the limit of the funds allotted.
(4) The elements of cost that changed from
the original estimate (for example: labor,
material, travel, overhead), furnished in the
following order:
(i) Original estimate.
(ii) Costs incurred to date.
(iii) Estimated cost to completion.
(iv) Revised estimate.
(v) Amount of adjustment.
(5) The factors responsible for the increase.
(6) The latest date by which funds must be
available to the contractor to avoid delays in
performance, work stoppage, or other
impairments.
(b) A fixed fee provided in a contract may
not be changed if a cost overrun is funded.
Changes in a fixed fee may be made only to
reflect changes in the scope of work that
justify an increase or decrease in the fee.
(End of Clause)
3452.232–71 Incremental funding.
As prescribed in 3432.705–2, insert
the following provision in solicitations
if a cost-reimbursement contract using
incremental funding is contemplated:
Incremental Funding (MAR 2011)
Sufficient funds are not presently available
to cover the total cost of the complete project
described in this solicitation. However, it is
the Government’s intention to negotiate and
award a contract using the incremental
funding concepts described in the clause
titled ‘‘Limitation of Funds’’ in FAR 52.232–
22. Under that clause, which will be
included in the resultant contract, initial
funds will be obligated under the contract to
cover an estimated base performance period.
Additional funds are intended to be allotted
to the contract by contract modification, up
to and including the full estimated cost of the
entire period of performance. This intent
notwithstanding, the Government will not be
obligated to reimburse the contractor for
costs incurred in excess of the periodic
allotments, nor will the contractor be
obligated to perform in excess of the amount
allotted.
(End of Provision)
3452.237–70 Services of consultants.
As prescribed in 3437.270, insert the
following clause in all solicitations and
resultant cost-reimbursement contracts
that do not provide services to FSA:
Services of Consultants (MAR 2011)
Except as otherwise expressly provided
elsewhere in this contract, and
notwithstanding the provisions of the clause
of the contract entitled ‘‘Subcontracts’’ (FAR
52.244–2), the prior written approval of the
contracting officer shall be required—
(a) If any employee of the contractor is to
be paid as a ‘‘consultant’’ under this contract;
and
(b)(1) For the utilization of the services of
any consultant under this contract exceeding
the daily rate set forth elsewhere in this
contract or, if no amount is set forth, $800,
exclusive of travel costs, or if the services of
any consultant under this contract will
exceed 10 days in any calendar year.
(2) If that contracting officer’s approval is
required, the contractor shall obtain and
furnish to the contracting officer information
concerning the need for the consultant
services and the reasonableness of the fee to
be paid, including, but not limited to,
whether fees to be paid to any consultant
exceed the lowest fee charged by the
consultant to others for performing
consultant services of a similar nature.
(End of Clause)
3452.237–71 Observance of administrative
closures.
As prescribed in 3437.170, insert the
following clause in all solicitations and
service contracts:
Observance of Administrative Closures
(MAR 2011)
(a) The contract schedule identifies all
Federal holidays that are observed under this
contract. Contractor performance is required
under this contract at all other times, and
compensated absences are not extended due
to administrative closures of Government
facilities and operations due to inclement
weather, Presidential decree, or other
administrative issuances where Government
personnel receive early dismissal
instructions.
(b) In cases of contract performance at a
Government facility when the facility is
closed, the vendor may arrange for
performance to continue during the closure
at the contractor’s site, if appropriate.
(End of Clause)
3452.239–70 Internet protocol version 6
(IPv6).
As prescribed in 3439.701, insert the
following clause in all solicitations and
resulting contracts for hardware and
software:
Internet Protocol Version 6 (MAR 2011)
(a) Any system hardware, software,
firmware, or networked component (voice,
video, or data) developed, procured, or
acquired in support or performance of this
contract shall be capable of transmitting,
receiving, processing, forwarding, and storing
digital information across system boundaries
utilizing system packets that are formatted in
accordance with commercial standards of
Internet protocol (IP) version 6 (IPv6) as set
forth in Internet Engineering Task Force
(IETF) Request for Comments (RFC) 2460 and
associated IPv6-related IETF RFC standards.
In addition, this system shall maintain
interoperability with IPv4 systems and
provide at least the same level of
performance and reliability capabilities of
IPv4 products.
(b) Specifically, any new IP product or
system developed, acquired, or produced
must—
(1) Interoperate with both IPv6 and IPv4
systems and products; and
(2) Have available contractor/vendor IPv6
technical support for development and
implementation and fielded product
management.
(c) Any exceptions to the use of IPv6
require the agency’s CIO to give advance,
written approval.
(End of Clause)
3452.239–71 Notice to offerors of
Department security requirements.
As prescribed in 3439.702, include
the following provision in solicitations
when the offeror’s employees would
have access to Department-controlled
facilities or space, or when the work
(wherever located) would involve the
design, operation, repair, or
maintenance of information systems and
access to sensitive but unclassified
information:
Notice to Offerors of Department Security
Requirements (MAR 2011)
(a) The offeror and any of its future
subcontractors will have to comply with
Department security policy requirements as
set forth in the ‘‘Bidder’s Security Package:
Security Requirements for Contractors Doing
Business with the Department of Education’’
at: http://www.ed.gov/fund/contract/about/
bsp.html.
(b) All contractor employees must undergo
personnel security screening if they will be
employed for 30 days or more, in accordance
with Departmental Directive OM:5–101,
‘‘Contractor Employee Personnel Security
Screenings,’’ available at: http://www.ed.gov/
fund/contract/about/acs/acsom5101.doc.
(c) The offeror shall indicate the following
employee positions it anticipates to employ
in performance of this contract and their
proposed risk levels based on the guidance
provided in Appendix I of Departmental
Directive OM:5–101:
High Risk (HR): [Specify HR positions.].
Moderate Risk (MR): [Specify MR
positions.].
Low Risk (LR): [Specify LR positions.].
(d) In the event the Department disagrees
with a proposed risk level assignment, the
issue shall be subject to negotiation.
However, if no agreement is reached, the
Department’s risk level assignment shall be
used. The type of screening and the timing
of the screening will depend upon the nature
of the contractor position, the type of data to
be accessed, and the type of information
technology (IT) system access required.
Personnel security screenings will be
commensurate with the risk and magnitude
of harm the individual could cause.
(End of Provision)
3452.239–72 Department security
requirements.
As prescribed in 3439.702, include
the following clause in contracts when
the contractor’s employees will have
access to Department-controlled
facilities or space, or when the work
(wherever located) would involve the
design, operation, repair, or
maintenance of information systems and
access to sensitive but unclassified
information:
Department Security Requirements (MAR
2011)
(a) The contractor and its subcontractors
shall comply with Department security
policy requirements as set forth in the
‘‘Bidder’s Security Package: Security
Requirements for Contractors Doing Business
with the Department of Education’’ at
http://www.ed.gov/fund/contract/about/
bsp.html.
(b) The following are the contractor
employee positions required under this
contract and their designated risk levels:
High Risk (HR): [Specify HR positions.]
Moderate Risk (MR): [Specify MR
positions.]
Low Risk (LR): [Specify LR positions.]
(c) All contractor employees must undergo
personnel security screening if they will be
employed for 30 days or more, in accordance
with Departmental Directive OM:5–101,
‘‘Contractor Employee Personnel Security
Screenings.’’ The type of screening and the
timing of the screening will depend upon the
nature of the contractor position, the type of
data to be accessed, and the type of
information technology (IT) system access
required. Personnel security screenings will
be commensurate with the risk and
magnitude of harm the individual could
cause.
(d) The contractor shall—
(1) Ensure that all non-U.S. citizen
contractor employees are lawful permanent
residents of the United States or have
appropriate work authorization documents as
required by the Department of Homeland
Security, Bureau of Immigration and
Appeals, to work in the United States.
(2) Ensure that no employees are assigned
to high risk designated positions prior to a
completed preliminary screening.
(3) Submit all required personnel security
forms to the contracting officer’s
representative (COR) within 24 hours of an
assignment to a Department contract and
ensure that the forms are complete.
(4) Ensure that no contractor employee is
placed in a higher risk position than that for
which he or she was previously approved,
without the approval of the contracting
officer or the COR, the Department personnel
security officer, and the Department
computer security officer.
(5) Ensure that all contractor employees
occupying high-risk designated positions
submit forms for reinvestigation every five
years for the duration of the contract or if
there is a break in service to a Department
contract of 365 days or more.
(6) Report to the COR all instances of
individuals seeking to obtain unauthorized
access to any departmental IT system, or
sensitive but unclassified and/or Privacy Act
protected information.
(7) Report to the COR any information that
raises an issue as to whether a contractor
employee’s eligibility for continued
employment or access to Department IT
systems, or sensitive but unclassified and/or
Privacy Act protected information, promotes
the efficiency of the service or violates the
public trust.
(8) Withdraw from consideration under the
contract any employee receiving an
unfavorable adjudication determination.
(9) Officially notify each contractor
employee if he or she will no longer work on
a Department contract.
(10) Abide by the requirements in
Departmental Directive OM:5–101,
‘‘Contractor Employee Personnel Security
Screenings.’’
(e) Further information including
definitions of terms used in this clause and
a list of required investigative forms for each
risk designation are contained in
Departmental Directive OM:5–101,
‘‘Contractor Employee Personnel Security
Screenings’’ available at the Web site listed in
the first paragraph of this clause.
(f) Failure to comply with the contractor
personnel security requirements may result
in a termination of the contract for default.
(End of Clause)
3452.239–73 Federal desktop core
configuration (FDCC) compatibility.
As prescribed in 3439.703, insert the
following clause in all solicitations and
contracts where software will be
developed, maintained, or operated on
any system using the FDCC
configuration:
Federal Desktop Core Configuration (FDCC)
Compatibility (MAR 2011)
(a) (1) The provider of information
technology shall certify applications are fully
functional and operate correctly as intended
on systems using the Federal desktop core
configuration (FDCC). This includes Internet
Explorer 7 configured to operate on Windows
XP and Windows Vista (in Protected Mode
on Vista).
(2) For the Windows XP settings, see:
http://csrc.nist.gov/itsec/
guidance_WinXP.html, and for the Windows
Vista settings, see: http://csrc.nist.gov/itsec/
guidance_vista.html.
(b) The standard installation, operation,
maintenance, update, or patching of software
shall not alter the configuration settings from
the approved FDCC configuration. The
information technology should also use the
Windows Installer Service for installation to
the default ‘‘program files’’ directory and
should be able to silently install and
uninstall.
(c) Applications designed for normal end
users shall run in the standard user context
without elevated system administration
privileges.
(End of Clause)
3452.242–70 Litigation and claims.
As prescribed in 3442.7001, insert the
following clause in all solicitations and
resultant cost-reimbursement contracts:
Litigation and Claims (MAR 2011)
(a) The contractor shall give the contracting
officer immediate notice in writing of—
(1) Any legal action, filed against the
contractor arising out of the performance of
this contract, including any proceeding
before any administrative agency or court of
law, and also including, but not limited to,
the performance of any subcontract
hereunder; and
(2) Any claim against the contractor for
cost that is allowable under the ‘‘allowable
cost and payment’’ clause.
(b) Except as otherwise directed by the
contracting officer, the contractor shall
immediately furnish the contracting officer
copies of all pertinent papers received under
that action or claim.
(c) If required by the contracting officer,
the contractor shall—
(1) Effect an assignment and subrogation in
favor of the Government of all the
contractor’s rights and claims (except those
against the Government) arising out of the
action or claim against the contractor; and
(2) Authorize the Government to settle or
defend the action or claim and to represent
the contractor in, or to take charge of, the
action.
(d) If the settlement or defense of an action
or claim is undertaken by the Government,
the contractor shall furnish all reasonable
required assistance. However, if an action
against the contractor is not covered by a
policy of insurance, the contractor shall
notify the contracting officer and proceed
with the defense of the action in good faith.
(e) To the extent not in conflict with any
applicable policy of insurance, the contractor
may, with the contracting officer’s approval,
settle any such action or claim.
(f)(1) The Government shall not be liable
for the expense of defending any action or for
any costs resulting from the loss thereof to
the extent that the contractor would have
been compensated by insurance that was
required by law, regulation, contract clause,
or other written direction of the contracting
officer, but that the contractor failed to secure
through its own fault or negligence.
(2) In any event, unless otherwise
expressly provided in this contract, the
contractor shall not be reimbursed or
indemnified by the Government for any cost
or expense of liability that the contractor may
incur or be subject to by reason of any loss,
injury, or damage, to the person or to real or
personal property of any third parties as may
arise from the performance of this contract.
(End of Clause)
3452.242–71 Notice to the Government of
delays.
As prescribed in 3442.7002, insert the
following clause in all solicitations and
contracts other than purchase orders:
Notice to The Government Of Delays (MAR
2011)
The contractor shall notify the contracting
officer of any actual or potential situation,
including but not limited to labor disputes,
that delays or threatens to delay the timely
performance of work under this contract. The
contractor shall immediately give written
notice thereof, including all relevant
information.
(End of Clause)
3452.242–73 Accessibility of meetings, conferences, and seminars to persons with
disabilities.
As prescribed in 3442.7101(b), insert
the following clause in all solicitations
and contracts:
Accessibility of Meetings, Conferences, and
Seminars to Persons With Disabilities (MAR
2011)
The contractor shall assure that any
meeting, conference, or seminar held
pursuant to the contract will meet all
applicable standards for accessibility to
persons with disabilities pursuant to section
504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794) and any
implementing regulations of the Department.
(End of Clause)
3452.243–70 Key personnel.
As prescribed in 3443.107, insert a
clause substantially the same as the
following in all solicitations and
resultant cost-reimbursement contracts
in which it will be essential for the
contracting officer to be notified that a
change of designated key personnel is to
take place by the contractor:
Key Personnel (MAR 2011)
(a) The personnel designated as key
personnel in this contract are considered to
be essential to the work being performed
hereunder. Prior to diverting any of the
specified individuals to other programs, or
otherwise substituting any other personnel
for specified personnel, the contractor shall
notify the contracting officer reasonably in
advance and shall submit justification
(including proposed substitutions) in
sufficient detail to permit evaluation of the
impact on the contract effort. No diversion or
substitution shall be made by the contractor
without written consent of the contracting
officer; provided, that the contracting officer
may ratify a diversion or substitution in
writing and that ratification shall constitute
the consent of the contracting officer required
by this clause. The contract shall be modified
to reflect the addition or deletion of key
personnel.
(b) The following personnel have been
identified as Key Personnel in the
performance of this contract:
Labor category Name
[Insert category.] [Insert name.]
(End of Clause)
3452.247–70 Foreign travel.
As prescribed in 3447.701, insert the
following clause in all solicitations and
resultant cost-reimbursement contracts:
Foreign Travel (MAR 2011)
Foreign travel shall not be undertaken
without the prior written approval of the
contracting officer. As used in this clause,
foreign travel means travel outside the
Continental United States, as defined in the
Federal Travel Regulation. Travel to nonforeign
areas (including the States of Alaska
and Hawaii, the Commonwealths of Puerto
Rico, Guam and the Northern Mariana
Islands and the territories and possessions of
the United States) is considered ‘‘foreign
travel’’ for the purposes of this clause.
(End of Clause)
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