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FEDERAL ACQUISITION CIRCULAR August 22, 2018 Number 2005-100
Effective August 22, 2018 Loose-leaf pages
Federal Acquisition Circular (FAC) 2005-100 is issued
under the authority of the Secretary of Defense, the
Administrator of General Services, and the Administrator for the
National Aeronautics and Space Administration. Unless otherwise
specified, all Federal Acquisition Regulation (FAR) and other
directive material contained in FAC 2005-100 is effective August
22, 2018.
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(BLANK PAGE)
ii
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FAC 2005-100 List of Subjects
Item Title Page
I Paid Sick Leave for Federal Contractors (FAR Case
2017-001)
v
II Non-Retaliation for Disclosure of Compensation Information
(FAR Case 2016-007)
v
III Technical Amendments vi
iii
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(BLANK PAGE)
iv
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FAC 2005-100 SUMMARY OF ITEMS
Federal Acquisition Circular (FAC) 2005-100 amends the Federal
Acquisition Regulation (FAR) as specified below:
Item I— Paid Sick Leave for Federal Contractors (FAR Case
2017-001) DoD, GSA, and NASA are converting to a final rule,
without change, an interim rule that amended the Federal
Acquisition Regulation (FAR) to implement Executive Order (E.O.)
13706 and a Department of Labor final rule issued on September 30,
2016, both entitled Establishing Paid Sick Leave for Federal
Contractors. The rule requires contractors to allow all employees
performing work on or in connection with a contract covered by the
E.O. to accrue and use paid sick leave in accordance with E.O.
13706 and 29 CFR part 13. Contracting officers will include a
clause in covered contracts. This FAR rule neither increases nor
decreases the cost of the interim rule (81 FR 91627), which has
been in effect since January 1, 2017. Replacement pages: The
effective pages were available on their effective date of JANUARY
1, 2017. Item II— Non-Retaliation for Disclosure of Compensation
Information (FAR Case 2016-007)
DoD, GSA, and NASA are converting to a final rule, without
change, an interim rule that amended the Federal Acquisition
Regulation (FAR) to implement Executive Order (E.O.) 13665,
Non-Retaliation for Disclosure of Compensation Information. E.O.
13665, signed April 8, 2014, amended E.O. 11246, Equal Opportunity
in Federal Employment. The interim FAR rule also implemented a
final rule issued by the Office of Federal Contract Compliance
Programs (OFCCP) of the Department of Labor, entitled Government
Contractors, Prohibitions Against Pay Secrecy Policies and Actions,
which was published on September 11, 2015. E.O. 11246, originally
issued September 24, 1965, establishes nondiscrimination and
affirmative action obligations in employment for Federal
contractors and subcontractors. It prohibits employment
discrimination because of race, color, religion, sex, sexual
orientation, gender identity, and national
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origin. E.O. 13665 amends E.O. 11246 and its Equal Opportunity
Clause by incorporating, as a covered prohibition, discriminating
against employees and job applicants who inquire about, discuss, or
disclose the compensation of the employee or applicant or another
employee or applicant. Federal contractors and subcontractors must
disseminate this nondiscrimination provision, using language
prescribed by the Director of OFCCP, including incorporating the
provision into existing employee manuals or handbooks and posting
it. There is no significant impact on small entities imposed by the
FAR rule.
Replacement pages: The replacement pages were available on their
effective date of SEPTEMBER 11, 2015.
Item III—Technical Amendments
Editorial changes and updates to web links are made at FAR
2.101, 4.1603, 4.1702, 5.102, 5.201, 5.207, 5.704, 5.705, 6.305,
7.103, 7.105, 7.107-4, 8.405-6, 8.501, 8.602, 9.406-3, 9.407-3,
14.201-2, 16.505, 17.502-1, 18.205, 19.704, 19.1503, 22.001,
22.404-3, 22.1001, 22.1021, 22.1022, 22.1304, 23.202, 23.203,
23.205, 23.401, 23.405, 23.802, 25.003, 25.703-2, 28.106-1,
28.106-3, 28.203-3, 28.204-3, 31.205-6, 36.104, 36.700, 41.301,
49.602, 52.208-8, 52.212-1, 52.212-3, 52.212-5, 52.213-4, 52.219-9,
52.222-6, 52.222-8, 52.222-30, 52.222-31, 52.222-32, 52.222-41,
52.222-43, 52.223-17, 52.225-5, 52.225-18, 52.225-25, 52.228-11,
52.243-1, 52.244-6, 53.000, 53.102, 53.209-1, 53.228, 53.249 and
subpart 53.3.
Replacement pages: 2.1-5 thru 2.1-10; 4.16-3 and 4.16-4 4;
4.17-1 and 4.17-2; 5.1-1 and 5.1-2; 5.2-1 thru 5.2-4; 5.7-1 and
5.7-2; 6.3-5 and 6.3-6; 7.1-1 thru 7.1-8; 8.4-9 and 8.4-10; 8.5-1
and 8.5-2; 8.6-1 and 8.6-2; 9.4-5 thru 9.4-10; 14.2-1 and 14.2-2;
16.5-7 and 16.5-8; 17.5-1 thru 17.5-4; 18.2-1 and 18.2-2; 19.7-3
thru 19.7-10; 19.15-1 thru 19.15-4; 22.1-1 thru 22.1-4; 22.4-5 and
22.4-6; 22.10-1 thru 22.10-14; 22.13-1 thru 22.13-4; 23.2-1 and
23.2-2; 23.4-1 and 23.4-2; 23.8-1 and 23.8-2; 25.1-1 thru 25.1-8;
25.7-3 and 25.7-4; 28.1-3 thru 28.1-6; 28.2-3 thru 28.2-6; 31.2-9
thru 31.2-14.2; 36.1-1 and 36.1-2; 36.7-1 and 36.7-2; 41.3-1 and
41.3-2; 49.6-3 thru 49.6-12; 52.2-15 and 52.2-16; 52.2-27 and
52.2-34.6; 52.2-39 thru 52.2-42.6; 52.2-69 thru 52.2-76; 52.2-95
thru 52.2-96.8; 52.2-105 thru 52.2-132.10; 52.2-138.1 thru
52.2-146; 52.2-150.15 thru 52.2-150.20; 52.2-179 and 52.2-180;
52.2-255 and 52.2-256; 52.2-261 thru 52.262; 53.1-1 and 53.1-2; TOC
53-1 and 53-2; 53.2-1 thru 53.2-6.
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FAC 2005-100 FILING INSTRUCTIONS
NOTE: The FAR is segmented by subparts. The FAR page numbers
reflect FAR Subparts. For example, “2.1-5” is page 5 of subpart
2.1.
Remove Pages Insert Pages 2.1-5 thru 2.1-10 2.1-5 thru
2.1-10
4.16-3 and 4.16-4 4.16-3 and 4.16-4 4.17-1 and 4.17-2 4.17-1 and
4.17-2
5.1-1 and 5.1-2 5.1-1 and 5.1-2 5.2-1 thru 5.2-4 5.2-1 thru
5.2-4 5.7-1 and 5.7-2 5.7-1 and 5.7-2
6.3-5 and 6.3-6 6.3-5 and 6.3-6
7.1-1 thru 7.1-8 7.1-1 thru 7.1-8
8.4-9 and 8.4-10 8.4-9 and 8.4-10 8.5-1 and 8.5-2 8.5-1 and
8.5-2 8.6-1 and 8.6-2 8.6-1 and 8.6-2
9.4-5 thru 9.4-10 9.4-5 thru 9.4-10
14.2-1 and 14.2-2 14.2-1 and 14.2-2
16.5-7 and 16.5-8 16.5-7 and 16.5-8
17.5-1 thru 17.5-4 17.5-1 thru 17.5-4
18.2-1 and 18.2-2 18.2-1 and 18.2-2
19.7-3 thru 19.7-10 19.7-3 thru 19.7-10 19.15-1 thru 19.15-4
19.15-1 thru 19.15-4
22.1-1 thru 22.1-4 22.1-1 thru 22.1-4 22.4-5 and 22.4-6 22.4-5
and 22.4-6 22.10-1 thru 22.10-14 22.10-1 thru 22.10-14 22.13-1 thru
22.13-4 22.13-1 thru 22.13-4
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Remove Pages 23.2-1 and 23.2-2 23.4-1 and 23.4-2 23.8-1 and
23.8-2
25.1-1 thru 25.1-8 25.7-3 and 25.7-4
28.1-3 thru 28.1-6 28.2-3 thru 28.2-6
31.2-9 thru 31.2-14.2
36.1-1 and 36.1-2 36.7-1 and 36.7-2
41.3-1 and 41.3-2
49.6-3 thru 49.6-12
52.2-15 and 52.2-16 52.2-27 and 52.2-34.6 52.2-39 thru 52.2-42.6
52.2-69 thru 52.2-76 52.2-95 thru 52.2-96.8 52.2-105 thru
52.2-132.10 52.2-138.1 thru 52.2-146 52.2-150.15 thru 52.2-150.20
52.2-179 and 52.2-180 52.2-255 and 52.2-256 52.2-261 thru
52.264
TOC 53-1 thru 53-4 53.1-1 and 53.1-2 53.2-1 thru 53.2-6 53.3-1
thru 53.2-4
Insert Pages 23.2-1 and 23.2-2 23.4-1 and 23.4-2 23.8-1 and
23.8-2
25.1-1 thru 25.1-8 25.7-3 and 25.7-4
28.1-3 thru 28.1-6 28.2-3 thru 28.2-6
31.2-9 thru 31.2-14.2
36.1-1 and 36.1-2 36.7-1 and 36.7-2
41.3-1 and 41.3-2
49.6-3 thru 49.6-12
52.2-15 and 52.2-16 52.2-27 and 52.2-34.6 52.2-39 thru 52.2-42.6
52.2-69 thru 52.2-76 52.2-95 thru 52.2-96.8 52.2-105 thru
52.2-132.10 52.2-138.1 thru 52.2-146 52.2-150.15 thru 52.2-150.20
52.2-179 and 52.2-180 52.2-255 and 52.2-256 52.2-261 thru
52.264
TOC 53-1 and 53-2 53.1-1 and 53.1-2 53.2-1 thru 53.2-6 53.3-1
thru 53.2-4
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SUBPART 2.1—DEFINITIONS 2.101
(FAC 2005-100)
2.1-5
“Construction” means construction, alteration, or
repair(including dredging, excavating, and painting) of
buildings,structures, or other real property. For purposes of
thisdefinition, the terms “buildings, structures, or other
realproperty” include, but are not limited to, improvements of
alltypes, such as bridges, dams, plants, highways,
parkways,streets, subways, tunnels, sewers, mains, power
lines,cemeteries, pumping stations, railways, airport
facilities,terminals, docks, piers, wharves, ways, lighthouses,
buoys,jetties, breakwaters, levees, canals, and
channels.Construction does not include the manufacture,
production,furnishing, construction, alteration, repair,
processing, orassembling of vessels, aircraft, or other kinds of
personalproperty (except that for use in subpart 22.5, see the
definitionat 22.502).
“Contiguous United States (CONUS)” means the48 contiguous States
and the District of Columbia.
“Contingency operation” (10 U.S.C. 101(a)(13)) means amilitary
operation that—
(1) Is designated by the Secretary of Defense as an oper-ation
in which members of the armed forces are or maybecome involved in
military actions, operations, or hostilitiesagainst an enemy of the
United States or against an opposingmilitary force; or
(2) Results in the call or order to, or retention on, activeduty
of members of the uniformed services undersections 688, 12301(a),
12302, 12304, 12304(a), 12305, or12406 of title 10 of the United
States Code, Chapter 15 of title10 of the United States Code, or
any other provision of lawduring a war or during a national
emergency declared by thePresident or Congress.
“Continued portion of the contract” means the portion of
acontract that the contractor must continue to perform follow-ing a
partial termination.
“Contract” means a mutually binding legal relationshipobligating
the seller to furnish the supplies or services (includ-ing
construction) and the buyer to pay for them. It includes alltypes
of commitments that obligate the Government to anexpenditure of
appropriated funds and that, except as other-wise authorized, are
in writing. In addition to bilateral instru-ments, contracts
include (but are not limited to) awards andnotices of awards; job
orders or task letters issued under basicordering agreements;
letter contracts; orders, such as purchaseorders, under which the
contract becomes effective by writtenacceptance or performance; and
bilateral contract modifica-tions. Contracts do not include grants
and cooperative agree-ments covered by 31 U.S.C. 6301, et seq. For
discussion ofvarious types of contracts, see part 16.
“Contract administration office” means an office that
per-forms—
(1) Assigned postaward functions related to the admin-istration
of contracts; and
(2) Assigned preaward functions.
“Contract clause” or “clause” means a term or conditionused in
contracts or in both solicitations and contracts, andapplying after
contract award or both before and after award.
“Contract modification” means any written change in theterms of
a contract (see 43.103).
“Contracting” means purchasing, renting, leasing, or oth-erwise
obtaining supplies or services from nonfederalsources. Contracting
includes description (but not determina-tion) of supplies and
services required, selection and solicita-tion of sources,
preparation and award of contracts, and allphases of contract
administration. It does not include makinggrants or cooperative
agreements.
“Contracting activity” means an element of an agency des-ignated
by the agency head and delegated broad authorityregarding
acquisition functions.
“Contracting office” means an office that awards or exe-cutes a
contract for supplies or services and performs post-award functions
not assigned to a contract administrationoffice (except for use in
part 48, see also 48.001).
“Contracting officer” means a person with the authority toenter
into, administer, and/or terminate contracts and makerelated
determinations and findings. The term includes certainauthorized
representatives of the contracting officer actingwithin the limits
of their authority as delegated by the con-tracting officer.
“Administrative contracting officer (ACO)”refers to a contracting
officer who is administering contracts.“Termination contracting
officer (TCO)” refers to a contract-ing officer who is settling
terminated contracts. A single con-tracting officer may be
responsible for duties in any or all ofthese areas. Reference in
this regulation (48 CFR Chapter 1)to administrative contracting
officer or termination contract-ing officer does not—
(1) Require that a duty be performed at a particularoffice or
activity; or
(2) Restrict in any way a contracting officer in the
per-formance of any duty properly assigned.
“Contracting officer’s representative (COR)” means anindividual,
including a contracting officer’s technical repre-sentative (COTR),
designated and authorized in writing by thecontracting officer to
perform specific technical or adminis-trative functions.
“Conviction” means a judgment or conviction of a criminaloffense
by any court of competent jurisdiction, whetherentered upon a
verdict or a plea, and includes a convictionentered upon a plea of
nolo contendere. For use insubpart 23.5, see the definition at
23.503.
“Cost or pricing data” (10 U.S.C. 2306a(h)(1) and 41U.S.C.
chapter 35) means all facts that, as of the date of priceagreement,
or, if applicable, an earlier date agreed uponbetween the parties
that is as close as practicable to the dateof agreement on price,
prudent buyers and sellers would rea-sonably expect to affect price
negotiations significantly. Costor pricing data are factual, not
judgmental; and are verifiable.
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2.101 FEDERAL ACQUISITION REGULATION
FAC 2005–100 AUGUST 22, 2018
2.1-6
While they do not indicate the accuracy of the
prospectivecontractor’s judgment about estimated future costs or
projec-tions, they do include the data forming the basis for that
judg-ment. Cost or pricing data are more than historical
accountingdata; they are all the facts that can be reasonably
expected tocontribute to the soundness of estimates of future costs
and tothe validity of determinations of costs already incurred.
Theyalso include, but are not limited to, such factors as—
(1) Vendor quotations;(2) Nonrecurring costs;(3) Information on
changes in production methods and
in production or purchasing volume;(4) Data supporting
projections of business prospects
and objectives and related operations costs;(5) Unit-cost trends
such as those associated with labor
efficiency;(6) Make-or-buy decisions;(7) Estimated resources to
attain business goals; and(8) Information on management decisions
that could
have a significant bearing on costs.“Cost realism” means that
the costs in an offeror’s
proposal—(1) Are realistic for the work to be performed;(2)
Reflect a clear understanding of the requirements;
and(3) Are consistent with the various elements of the
offeror’s technical proposal.“Cost sharing” means an explicit
arrangement under which
the contractor bears some of the burden of reasonable,
alloca-ble, and allowable contract cost.
“Customs territory of the United States” means the50 States, the
District of Columbia, and Puerto Rico.
“Data other than certified cost or pricing data” means pric-ing
data, cost data, and judgmental information necessary forthe
contracting officer to determine a fair and reasonable priceor to
determine cost realism. Such data may include the iden-tical types
of data as certified cost or pricing data, consistentwith Table
15-2 of 15.408, but without the certification. Thedata may also
include, for example, sales data and any infor-mation reasonably
required to explain the offeror’s estimatingprocess, including, but
not limited to–
(1) The judgmental factors applied and the mathematicalor other
methods used in the estimate, including those used inprojecting
from known data; and
(2) The nature and amount of any contingencies includedin the
proposed price.
“Day” means, unless otherwise specified, a calendar
day.“Debarment” means action taken by a debarring official
under 9.406 to exclude a contractor from Government con-tracting
and Government-approved subcontracting for a rea-sonable, specified
period; a contractor that is excluded is“debarred.”
“Delivery order” means an order for supplies placedagainst an
established contract or with Government sources.
“Depreciation” means a charge to current operations
thatdistributes the cost of a tangible capital asset, less
estimatedresidual value, over the estimated useful life of the
asset in asystematic and logical manner. It does not involve a
processof valuation. Useful life refers to the prospective period
ofeconomic usefulness in a particular contractor’s operations
asdistinguished from physical life; it is evidenced by the actualor
estimated retirement and replacement practice of thecontractor.
“Descriptive literature” means information provided by
anofferor, such as cuts, illustrations, drawings, and
brochures,that shows a product’s characteristics or construction of
aproduct or explains its operation. The term includes only
thatinformation needed to evaluate the acceptability of the
prod-uct and excludes other information for operating or
maintain-ing the product.
“Design-to-cost” means a concept that establishes cost ele-ments
as management goals to achieve the best balancebetween life-cycle
cost, acceptable performance, and sched-ule. Under this concept,
cost is a design constraint during thedesign and development phases
and a management disciplinethroughout the acquisition and operation
of the system orequipment.
“Designated operational area” means a geographic areadesignated
by the combatant commander or subordinate jointforce commander for
the conduct or support of specified mil-itary operations.
“Direct cost” means any cost that is identified specificallywith
a particular final cost objective. Direct costs are not lim-ited to
items that are incorporated in the end product as mate-rial or
labor. Costs identified specifically with a contract aredirect
costs of that contract. All costs identified specificallywith other
final cost objectives of the contractor are directcosts of those
cost objectives.
“Direct acquisition” means a type of interagency acquisi-tion
where a requesting agency places an order directlyagainst a
servicing agency’s indefinite-delivery contract. Theservicing
agency manages the indefinite-delivery contract butdoes not
participate in the placement or administration of anorder.
“Disaster Response Registry” means a voluntary registryof
contractors who are willing to perform debris removal,
dis-tribution of supplies, reconstruction, and other disaster
oremergency relief activities established in accordance with6
U.S.C. 796, Registry of Disaster Response Contractors.The Registry
contains information on contractors who arewilling to perform
disaster or emergency relief activitieswithin the United States and
its outlying areas. The Registryis accessed via the Internet at
https://www.sam.gov, SearchRecords, Advanced Search, Disaster
Response RegistrySearch. (See 26.205.)
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SUBPART 2.1—DEFINITIONS 2.101
(FAC 2005-100)
2.1-7
“Drug-free workplace” means the site(s) for the perfor-mance of
work done by the contractor in connection with aspecific contract
where employees of the contractor are pro-hibited from engaging in
the unlawful manufacture, distribu-tion, dispensing, possession, or
use of a controlled substance.
“Earned value management system” means a project man-agement
tool that effectively integrates the project scope ofwork with
cost, schedule and performance elements for opti-mum project
planning and control. The qualities and operat-ing characteristics
of an earned value management system aredescribed in Electronic
Industries Alliance Standard 748(EIA-748), Earned Value Management
Systems. (See OMBCircular A-11, Part 7.)
“Economically disadvantaged women-owned small busi-ness (EDWOSB)
concern”—(see definition of “Women-Owned Small Business (WOSB)
Program” in this section).
“Effective date of termination” means the date on whichthe
notice of termination requires the contractor to stop per-formance
under the contract. If the contractor receives the ter-mination
notice after the date fixed for termination, then theeffective date
of termination means the date the contractorreceives the
notice.
“Electronic and information technology (EIT)” has thesame
meaning as “information technology” except EIT alsoincludes any
equipment or interconnected system or subsys-tem of equipment that
is used in the creation, conversion, orduplication of data or
information. The term EIT, includes, butis not limited to,
telecommunication products (such as tele-phones), information
kiosks and transaction machines, world-wide websites, multimedia,
and office equipment (such ascopiers and fax machines).
“Electronic commerce” means electronic techniques
foraccomplishing business transactions including electronic mailor
messaging, World Wide Web technology, electronic bulle-tin boards,
purchase cards, electronic funds transfer, and elec-tronic data
interchange.
“Electronic data interchange (EDI)” means a technique
forelectronically transferring and storing formatted
informationbetween computers utilizing established and published
for-mats and codes, as authorized by the applicable Federal
Infor-mation Processing Standards.
“Electronic Funds Transfer (EFT)” means any transfer offunds,
other than a transaction originated by cash, check, orsimilar paper
instrument, that is initiated through an electronicterminal,
telephone, computer, or magnetic tape, for the pur-pose of
ordering, instructing, or authorizing a financial insti-tution to
debit or credit an account. The term includesAutomated Clearing
House transfers, Fedwire transfers, andtransfers made at automatic
teller machines and point-of-saleterminals. For purposes of
compliance with 31 U.S.C. 3332and implementing regulations at 31
CFR Part 208, the term“electronic funds transfer” includes a
Governmentwide com-mercial purchase card transaction.
“Electronic Funds Transfer (EFT) indicator” means a
four-character suffix to the unique entity identifier. The suffix
isassigned at the discretion of the commercial, nonprofit,
orGovernment entity to establish additional System for
AwardManagement records for identifying alternative EFT
accounts(see subpart 32.11) for the same entity.
“End product” means supplies delivered under a line itemof a
Government contract, except for use in part 25 and theassociated
clauses at 52.225-1, 52.225-3, and 52.225-5, seethe definitions in
25.003, 52.225-1(a), 52.225-3(a), and52.225-5(a).
“Energy-efficient product”— (1) Means a product that—(i) Meets
Department of Energy and Environmental
Protection Agency criteria for use of the Energy Star trade-mark
label; or
(ii) Is in the upper 25 percent of efficiency for all sim-ilar
products as designated by the Department of Energy’sFederal Energy
Management Program.
(2) As used in this definition, the term “product” doesnot
include any energy-consuming product or systemdesigned or procured
for combat or combat-related missions(42 U.S.C. 8259b).
“Energy-efficient standby power devices” means productsthat
use—
(1) External standby power devices, or that contain aninternal
standby power function; and
(2) No more than one watt of electricity in their standbypower
consuming mode or meet recommended low standbylevels as designated
by the Department of Energy FederalEnergy Management Program.
“Energy-savings performance contract” means a contractthat
requires the contractor to—
(1) Perform services for the design, acquisition, financ-ing,
installation, testing, operation, and where appropriate,maintenance
and repair, of an identified energy conservationmeasure or series
of measures at one or more locations;
(2) Incur the costs of implementing the energy savingsmeasures,
including at least the cost (if any) incurred in mak-ing energy
audits, acquiring and installing equipment, andtraining personnel
in exchange for a predetermined share ofthe value of the energy
savings directly resulting from imple-mentation of such measures
during the term of the contract;and
(3) Guarantee future energy and cost savings to
theGovernment.
“Environmentally preferable” means products or servicesthat have
a lesser or reduced effect on human health and theenvironment when
compared with competing products or ser-vices that serve the same
purpose. This comparison may con-sider raw materials acquisition,
production, manufacturing,packaging, distribution, reuse,
operation, maintenance, or dis-posal of the product or service.
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2.101 FEDERAL ACQUISITION REGULATION
FAC 2005–100)
2.1-8 (
“Excess personal property” means any personal propertyunder the
control of a Federal agency that the agency headdetermines is not
required for its needs or for the discharge ofits
responsibilities.
“Executive agency” means an executive department, a mil-itary
department, or any independent establishment within themeaning of 5
U.S.C. 101, 102, and 104(1), respectively, andany wholly owned
Government corporation within the mean-ing of 31 U.S.C. 9101.
“Facilities capital cost of money” means “cost of money asan
element of the cost of facilities capital” as used at48 CFR
9904.414—Cost Accounting Standard—Cost ofMoney as an Element of the
Cost of Facilities Capital.
“Federal agency” means any executive agency or any inde-pendent
establishment in the legislative or judicial branch ofthe
Government (except the Senate, the House of Represen-tatives, the
Architect of the Capitol, and any activities underthe Architect’s
direction).
“Federally-controlled facilities” means—(1) Federally-owned
buildings or leased space, whether
for single or multi-tenant occupancy, and its grounds
andapproaches, all or any portion of which is under the
jurisdic-tion, custody or control of a department or agency;
(2) Federally-controlled commercial space shared
withnon-government tenants. For example, if a department oragency
leased the 10th floor of a commercial building, theDirective
applies to the 10th floor only;
(3) Government-owned, contractor-operated facilities,including
laboratories engaged in national defense researchand production
activities; and
(4) Facilities under a management and operating con-tract, such
as for the operation, maintenance, or support of aGovernment-owned
or Government-controlled research,development, special production,
or testing establishment.
“Federally-controlled information system” means aninformation
system (44 U.S.C. 3502(8) used or operated by aFederal agency, or a
contractor or other organization on behalfof the agency (44 U.S.C.
3544(a)(1)(A)).
“Federally Funded Research and Development Centers(FFRDC’s)”
means activities that are sponsored under a broadcharter by a
Government agency (or agencies) for the purposeof performing,
analyzing, integrating, supporting, and/ormanaging basic or applied
research and/or development, andthat receive 70 percent or more of
their financial support fromthe Government; and—
(1) A long-term relationship is contemplated;(2) Most or all of
the facilities are owned or funded by
the Government; and
(3) The FFRDC has access to Government and supplierdata,
employees, and facilities beyond that common in a nor-mal
contractual relationship.
“Final indirect cost rate” means the indirect cost rate
estab-lished and agreed upon by the Government and the contractoras
not subject to change. It is usually established after the closeof
the contractor’s fiscal year (unless the parties decide upona
different period) to which it applies. For
cost-reimbursementresearch and development contracts with
educational institu-tions, it may be predetermined; that is,
established for a futureperiod on the basis of cost experience with
similar contracts,together with supporting data.
“First article” means a preproduction model, initial pro-duction
sample, test sample, first lot, pilot lot, or pilot models.
“First article testing” means testing and evaluating the
firstarticle for conformance with specified contract
requirementsbefore or in the initial stage of production.
“F.o.b.” means free on board. This term is used in conjunc-tion
with a physical point to determine—
(1) The responsibility and basis for payment of freightcharges;
and
(2) Unless otherwise agreed, the point where title forgoods
passes to the buyer or consignee.
“F.o.b. destination” means free on board at destination;i.e.,
the seller or consignor delivers the goods on seller’s
orconsignor’s conveyance at destination. Unless the
contractprovides otherwise, the seller or consignor is responsible
forthe cost of shipping and risk of loss. For use in the clause
at52.247-34, see the definition at 52.247-34(a).
“F.o.b. origin” means free on board at origin; i.e., the
selleror consignor places the goods on the conveyance. Unless
thecontract provides otherwise, the buyer or consignee is
respon-sible for the cost of shipping and risk of loss. For use in
theclause at 52.247-29, see the definition at 52.247-29(a).
“F.o.b.”…(For other types of F.o.b., see 47.303).“Forward
pricing rate agreement” means a written agree-
ment negotiated between a contractor and the Government tomake
certain rates available during a specified period for usein pricing
contracts or modifications. These rates representreasonable
projections of specific costs that are not easily esti-mated for,
identified with, or generated by a specific contract,contract end
item, or task. These projections may include ratesfor such things
as labor, indirect costs, material obsolescenceand usage, spare
parts provisioning, and material handling.
“Forward pricing rate recommendation” means a rate
setunilaterally by the administrative contracting officer for useby
the Government in negotiations or other contract actionswhen
forward pricing rate agreement negotiations have notbeen completed
or when the contractor will not agree to a for-ward pricing rate
agreement.
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SUBPART 2.1—DEFINITIONS 2.101
FAC 2005–100 AUGUST 22, 2018
2.1-9
“Freight” means supplies, goods, and transportableproperty.
“Full and open competition,” when used with respect to acontract
action, means that all responsible sources are permit-ted to
compete.
“General and administrative (G&A) expense” means
anymanagement, financial, and other expense which is incurredby or
allocated to a business unit and which is for the generalmanagement
and administration of the business unit as awhole. G&A expense
does not include those managementexpenses whose beneficial or
causal relationship to costobjectives can be more directly measured
by a base other thana cost input base representing the total
activity of a businessunit during a cost accounting period.
“Global warming potential” means how much a givenmass of a
chemical contributes to global warming over a giventime period
compared to the same mass of carbon dioxide.Carbon dioxide’s global
warming potential is defined as 1.0.
“Governmentwide acquisition contract (GWAC)” means atask-order
or delivery-order contract for information technol-ogy established
by one agency for Governmentwide use thatis operated—
(1) By an executive agent designated by the Office ofManagement
and Budget pursuant to 40 U.S.C. 11302(e); or
(2) Under a delegation of procurement authority issuedby the
General Services Administration (GSA) prior toAugust 7, 1996, under
authority granted GSA by former sec-tion 40 U.S.C. 759, repealed by
Pub. L. 104-106. The Econ-omy Act does not apply to orders under a
Governmentwideacquisition contract.
“Governmentwide point of entry (GPE)” means the singlepoint
where Government business opportunities greater than$25,000,
including synopses of proposed contract actions,solicitations, and
associated information, can be accessedelectronically by the
public. The GPE is located at https://www.fbo.gov.
“Head of the agency” (see “agency head”).“Head of the
contracting activity” means the official who
has overall responsibility for managing the
contractingactivity.
“High global warming potential hydrofluorocarbons”means any
hydrofluorocarbons in a particular end use forwhich EPA’s
Significant New Alternatives Policy (SNAP)program has identified
other acceptable alternatives that havelower global warming
potential. The SNAP list of alternativesis found at 40 CFR part 82
subpart G with supplemental tablesof alternatives available at
http://www.epa.gov/snap/).
“Historically black college or university” means an insti-tution
determined by the Secretary of Education to meet therequirements of
34 CFR 608.2.
“HUBZone” means a historically underutilized businesszone that
is an area located within one or more qualified cen-sus tracts,
qualified nonmetropolitan counties, lands within
the external boundaries of an Indian reservation, qualifiedbase
closure areas, or redesignated areas, as defined in 13
CFR126.103.
“HUBZone contract” means a contract awarded to a SmallBusiness
Administration certified “HUBZone small businessconcern” through
any of the following procurement methods:
(1) A sole source award to a HUBZone small businessconcern.
(2) Set-aside awards based on competition restricted toHUBZone
small business concerns.
(3) Awards to HUBZone small business concernsthrough full and
open competition after a price evaluationpreference in favor of
HUBZone small business concerns.
“HUBZone small business concern” means a small busi-ness
concern, certified by the Small Business Administration(SBA), that
appears on the List of Qualified HUBZone SmallBusiness Concerns
maintained by the SBA (13 CFR 126.103).
“Humanitarian or peacekeeping operation” means a mili-tary
operation in support of the provision of humanitarian orforeign
disaster assistance or in support of a peacekeepingoperation under
Chapter VI or VII of the Charter of the UnitedNations. The term
does not include routine training, forcerotation, or stationing (10
U.S.C. 2302(8) and 41 U.S.C.153(2)).
“Hydrofluorocarbons” means compounds that containonly hydrogen,
fluorine, and carbon.
“In writing,” “writing,” or “written” means any worded
ornumbered expression that can be read, reproduced, and
latercommunicated, and includes electronically transmitted
andstored information.
“Indirect cost” means any cost not directly identified witha
single final cost objective, but identified with two or morefinal
cost objectives or with at least one intermediate
costobjective.
“Indirect cost rate” means the percentage or dollar factorthat
expresses the ratio of indirect expense incurred in a givenperiod
to direct labor cost, manufacturing cost, or anotherappropriate
base for the same period (see also “final indirectcost rate”).
“Ineligible” means excluded from Government contract-ing (and
subcontracting, if appropriate) pursuant to statutory,Executive
order, or regulatory authority other than this regu-lation (48 CFR
chapter 1) and its implementing and supple-menting regulations; for
example, pursuant to–
(1) 40 U.S.C. chapter 31, subchapter IV, Wage RateRequirements
(Construction), and its related statutes andimplementing
regulations;
(2) 41 U.S.C. chapter 67, Service Contract Labor Stan-dards;
(3) The Equal Employment Opportunity Acts and Exec-utive
orders;
(4) 41 U.S.C. chapter 65, Contracts for Material, Sup-plies,
Articles, and Equipment Exceeding $15,000;
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2.101 FEDERAL ACQUISITION REGULATION
FAC 2005–100)
2.1-10 (
(5) 41 U.S.C. chapter 83, Buy American; or(6) The Environmental
Protection Acts and Executive
orders.“Information security” means protecting information
and
information systems from unauthorized access, use, disclo-sure,
disruption, modification, or destruction in order to pro-vide—
(1) Integrity, which means guarding against improperinformation
modification or destruction, and includes ensur-ing information
nonrepudiation and authenticity;
(2) Confidentiality, which means preserving
authorizedrestrictions on access and disclosure, including means
for pro-tecting personal privacy and proprietary information;
and
(3) Availability, which means ensuring timely and reli-able
access to, and use of, information.
“Information technology” means any equipment, or inter-connected
system(s) or subsystem(s) of equipment, that isused in the
automatic acquisition, storage, analysis, evalua-tion,
manipulation, management, movement, control, display,switching,
interchange, transmission, or reception of data orinformation by
the agency.
(1) For purposes of this definition, equipment is used byan
agency if the equipment is used by the agency directly oris used by
a contractor under a contract with the agency thatrequires—
(i) Its use; or(ii) To a significant extent, its use in the
performance
of a service or the furnishing of a product.(2) The term
“information technology” includes com-
puters, ancillary equipment (including imaging
peripherals,input, output, and storage devices necessary for
security andsurveillance), peripheral equipment designed to be
controlledby the central processing unit of a computer, software,
firm-ware and similar procedures, services (including support
ser-vices), and related resources.
(3) The term “information technology” does not includeany
equipment that—
(i) Is acquired by a contractor incidental to a con-tract;
or
(ii) Contains imbedded information technology thatis used as an
integral part of the product, but the principalfunction of which is
not the acquisition, storage, analysis,evaluation, manipulation,
management, movement, control,display, switching, interchange,
transmission, or reception ofdata or information. For example, HVAC
(heating, ventila-tion, and air conditioning) equipment, such as
thermostats ortemperature control devices, and medical equipment
whereinformation technology is integral to its operation, are
notinformation technology.
“Inherently governmental function” means, as a matter ofpolicy,
a function that is so intimately related to the publicinterest as
to mandate performance by Government employ-
ees. This definition is a policy determination, not a legal
deter-mination. An inherently governmental function
includesactivities that require either the exercise of discretion
in apply-ing Government authority, or the making of value
judgmentsin making decisions for the Government. Governmental
func-tions normally fall into two categories: the act of
governing,i.e., the discretionary exercise of Government authority,
andmonetary transactions and entitlements.
(1) An inherently governmental function involves,among other
things, the interpretation and execution of thelaws of the United
States so as to—
(i) Bind the United States to take or not to take someaction by
contract, policy, regulation, authorization, order,
orotherwise;
(ii) Determine, protect, and advance United Stateseconomic,
political, territorial, property, or other interests bymilitary or
diplomatic action, civil or criminal judicial pro-ceedings,
contract management, or otherwise;
(iii) Significantly affect the life, liberty, or propertyof
private persons;
(iv) Commission, appoint, direct, or control officersor
employees of the United States; or
(v) Exert ultimate control over the acquisition, use,or
disposition of the property, real or personal, tangible
orintangible, of the United States, including the collection,
con-trol, or disbursement of Federal funds.
(2) Inherently governmental functions do not normallyinclude
gathering information for or providing advice, opin-ions,
recommendations, or ideas to Government officials.They also do not
include functions that are primarily ministe-rial and internal in
nature, such as building security, mail oper-ations, operation of
cafeterias, housekeeping, facilitiesoperations and maintenance,
warehouse operations, motorvehicle fleet management operations, or
other routine electri-cal or mechanical services.
“Inspection” means examining and testing supplies or ser-vices
(including, when appropriate, raw materials, compo-nents, and
intermediate assemblies) to determine whetherthey conform to
contract requirements.
“Insurance” means a contract that provides that for a
stip-ulated consideration, one party undertakes to indemnifyanother
against loss, damage, or liability arising from anunknown or
contingent event.
“Interagency acquisition” means a procedure by which anagency
needing supplies or services (the requesting agency)obtains them
from another agency (the servicing agency), byan assisted
acquisition or a direct acquisition. The termincludes—
(1) Acquisitions under the Economy Act (31 U.S.C. 1535);and
(2) Non-Economy Act acquisitions completed under otherstatutory
authorities, (e.g., General Services AdministrationFederal Supply
Schedules in subpart 8.4 and Govern-mentwide acquisition contracts
(GWACs)).
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SUBPART 4.16—UNIQUE PROCUREMENT INSTRUMENT IDENTIFIERS
4.1603
FAC 2005–100 AUGUST 22, 2018
4.16-3
(5) Illustration of PIID. The following illustrates aproperly
configured PIID using four characters in the finalpositions:
(b) Elements of a supplementary PIID. Use the supplemen-tary
PIID to identify amendments to solicitations and modifi-cations to
contracts, orders, and agreements. Thesupplementary PIID is
reported as a separate data elementused in conjunction with, but
not appended to, the PIID.
(1) Amendments to solicitations. Number amendmentsto
solicitations sequentially using a four position numericserial
number in addition to the 13-17 character PIID begin-ning with
0001.
(2) Modifications to contracts, orders, and agreements.Number
modifications to contracts, orders, and agreementsusing a six
position alpha or numeric, or a combinationthereof, in addition to
the 13-17 character PIID. For example,a modification could be
numbered P00001. This would be inaddition to the 13-17 character
PIID illustrated in paragraph(a)(5) of this section.
(i) Position 1. Identify the office issuing the modi-fication.
The letter P shall be designated for modificationsissued by the
procuring contracting office. The letter A shallbe used for
modifications issued by the contract administra-tion office (if
other than the procuring contracting office).
(ii) Positions 2 through 6. These positions may bealpha,
numeric, or a combination thereof, in accordance withagency
procedures.
Each office authorized to issue modifications shall assignthe
supplementary identification numbers in sequence (unlessprovided
otherwise in agency procedures). Do not assign thenumbers until it
has been determined that a modification is tobe issued.
Position Contents
office (AAC)department/agnecyIdentification of 1-6
N00062 17 C 0001
Last two digitsof the fiscal year in whichthe
procurmentinstrument is issued or
7-8
Type of instrument
Four positionagency assignednumber
9
10-13
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4.1603 FEDERAL ACQUISITION REGULATION
4.16-4
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SUBPART 4.17—SERVICE CONTRACTS INVENTORY 4.1703
FAC 2005–100 AUGUST 22, 2018
4.17-1
Subpart 4.17—Service Contracts Inventory
4.1700 Scope of subpart.This subpart implements section 743(a)
of Division C of
the Consolidated Appropriations Act, 2010 (Pub. L.
111-117),which requires agencies to report annually to the Office
ofManagement and Budget (OMB) on activities performed byservice
contractors. Section 743(a) applies to executive agen-cies, other
than the Department of Defense (DoD), covered bythe Federal
Activities Inventory Reform Act (Pub. L. 105-270) (FAIR Act). The
information reported in the inventorywill be publicly
accessible.
4.1701 Definitions.As used in this subpart–“FAIR Act agencies”
means the agencies required under
the FAIR Act to submit inventories annually of the
activitiesperformed by Government personnel.
“First-tier subcontract” means a subcontract awardeddirectly by
the contractor for the purpose of acquiring suppliesor services
(including construction) for performance of aprime contract. It
does not include the contractor’s supplieragreements with vendors,
such as long-term arrangements formaterials or supplies that
benefit multiple contracts and/or thecosts of which are normally
applied to a contractor’s generaland administrative expenses or
indirect costs.
4.1702 Applicability.(a) This subpart applies to–
(1) All FAIR Act agencies, except DoD as specified in4.1705;
(2) Solicitations, contracts, and orders for services(including
construction) that meet or exceed the thresholds at4.1703; and
(3) Contractors and first-tier subcontractors.(b) Procedures for
compiling and submitting agency ser-
vice contract inventories are governed by section 743(a)(3)
ofDivision C of Pub. L. 111-117 and Office of Federal Procure-ment
Policy (OFPP) guidance. The guidance is available atthe following
Web site:
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-con-tract-inventory-guidance.pdf.
(c) This subpart addresses requirements for obtaininginformation
from, and reporting by, agency service contrac-tors.
4.1703 Reporting requirements.(a) Thresholds. (1) Except as
exempted by OFPP guid-
ance, service contractor reporting shall be required for
con-tracts and first-tier subcontracts for services based on type
ofcontract and estimated total value. For
indefinite-deliverycontracts, reporting shall be determined based
on the type and
estimated total value of each order under the contract.
Indef-inite-delivery contracts include, but are not limited to,
con-tracts such as indefinite-delivery indefinite-quantity
(IDIQ)contracts, Federal Supply Schedule contracts (FSSs),
Govern-mentwide acquisition contracts (GWACs), and
multi-agencycontracts.
(2) Reporting is required according to the
followingthresholds:
(i) All cost-reimbursement, time-and-materials, andlabor-hour
service contracts and orders with an estimated totalvalue above the
simplified acquisition threshold.
(ii) All fixed-price service contracts awarded andorders issued
according to the following thresholds:
(A) Awarded or issued in Fiscal Year 2014, withan estimated
total value of $2.5 million or greater.
(B) Awarded or issued in Fiscal Year 2015, withan estimated
total value of $1 million or greater.
(C) Awarded or issued in Fiscal Year 2016, andsubsequent years,
with an estimated total value of $500,000 orgreater.
(3) Reporting is required for all first-tier subcontractsfor
services as prescribed in paragraphs (a)(2)(i) and (ii) ofthis
section.
(b) Agency reporting responsibilities. (1) Agencies shallensure
that contractors comply with the reporting require-ments of
52.204-14, Service Contract Reporting Require-ments and 52.204-15,
Service Contract ReportingRequirements for Indefinite-Delivery
Contracts. Agenciesshall review contractor reported information for
reasonable-ness and consistency with available contract
information. Theagency is not required to address data for which
the agencywould not normally have supporting information. In the
eventthe agency believes that revisions to the contractor
reportedinformation are warranted, the agency shall notify the
con-tractor no later than November 15. By November 30, the
con-tractor shall revise the report, or document its rationale for
theagency. Authorized agency officials may review the reports
atwww.sam.gov.
(2) Agencies are required to compile annually an inven-tory of
service contracts performed for, or on behalf of, theagency during
the prior fiscal year in order to determine theextent of the
agency’s reliance on service contractors. Agen-cies shall submit a
service contract inventory to OMB by Jan-uary 15 annually. Then,
each agency must post the inventoryon its Web site and publish a
Federal Register Notice of Avail-ability by February 15
annually.
(3) Most of the required information is already collectedin the
Federal Procurement Data System (FPDS). Informa-tion not collected
in FPDS will be provided by the contractor,as specified in
52.204-14, Service Contract ReportingRequirements and 52.204-15,
Service Contract
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-contract-inventory-guidance.pdfhttps://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-contract-inventory-guidance.pdfhttps://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-contract-inventory-guidance.pdfwww.sam.gov.
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4.1704 FEDERAL ACQUISITION REGULATION
FAC 2005-100)
4.17-2 (
4.1704 Contracting officer responsibilities.(a) For other than
indefinite-delivery contracts, the con-
tracting officer shall ensure that 52.204-14, Service
ReportingRequirement, is included in solicitations, contracts,
andorders as prescribed at 4.1705. For indefinite-delivery
con-tracts, the contracting officer who awarded the contract
shallensure that 52.204-15 Service Contract Reporting Require-ments
for Indefinite-Delivery Contracts, is included in solic-itations
and contracts as prescribed at 4.1705. The contractingofficer at
the order level shall verify the clause’s inclusion inthe
contract.
(b) If the contractor fails to submit a report in a timely
man-ner, the contracting officer shall exercise appropriate
contrac-tual remedies. In addition, the contracting officer shall
makethe contractor’s failure to comply with the reporting
require-ments a part of the contractor’s performance
informationunder subpart 42.15.
4.1705 Contract clauses.(a) The contracting officer shall insert
the clause at
52.204-14, Service Contract Reporting Requirements,
insolicitations and contracts for services (including
construc-tion) that meet or exceed the thresholds at 4.1703, except
forindefinite-delivery contracts. This clause is not required
foractions entirely funded by DoD, contracts awarded with ageneric
entity identifier, or in classified solicitations, con-tracts, or
orders.
(b) The contracting officer shall insert the clause at52.204-15,
Service Contract Reporting Requirements forIndefinite-Delivery
Contracts, in solicitations and indefinite-delivery contracts for
services (including construction) whereone or more orders issued
thereunder are expected to eachmeet or exceed the thresholds at
4.1703. This clause is notrequired for actions entirely funded by
DoD, contractsawarded with a generic entity identifier, or in
classified solic-itations, contracts, or orders.
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SUBPART 5.1—DISSEMINATION OF INFORMATION 5.102
FAC 2005–100 AUGUST 22, 2018
5.1-1
5.000 Scope of part.This part prescribes policies and procedures
for publiciz-
ing contract opportunities and award information.
5.001 Definition.“Contract action,” as used in this part, means
an action
resulting in a contract, as defined in Subpart 2.1,
includingactions for additional supplies or services outside the
existingcontract scope, but not including actions that are within
thescope and under the terms of the existing contract, such
ascontract modifications issued pursuant to the Changes clause,or
funding and other administrative changes.
5.002 Policy.Contracting officers must publicize contract
actions in
order to—(a) Increase competition;(b) Broaden industry
participation in meeting Government
requirements; and(c) Assist small business concerns,
veteran-owned small
business concerns, service-disabled veteran-owned smallbusiness
concerns, HUBZone small business concerns, smalldisadvantaged
business concerns, and women-owned smallbusiness concerns in
obtaining contracts and subcontracts.
5.003 Governmentwide point of entry.For any requirement in the
FAR to publish a notice, the
contracting officer must transmit the notices to the GPE.
Subpart 5.1—Dissemination of Information
5.101 Methods of disseminating information.(a) As required by
the Small Business Act
(15 U.S.C. 637(e)) and the Office of Federal ProcurementPolicy
Act (41 U.S.C. 1708), contracting officers must dis-seminate
information on proposed contract actions as follows:
(1) For proposed contract actions expected to exceed$25,000, by
synopsizing in the GPE (see 5.201).
(2) For proposed contract actions expected to exceed$15,000, but
not expected to exceed $25,000, by displaying ina public place, or
by any appropriate electronic means, anunclassified notice of the
solicitation or a copy of the solici-tation satisfying the
requirements of 5.207(c). The notice mustinclude a statement that
all responsible sources may submit aresponse which, if timely
received, must be considered by theagency. The information must be
posted not later than the datethe solicitation is issued, and must
remain posted for at least10 days or until after quotations have
been opened, whicheveris later.
(i) If solicitations are posted instead of a notice,
thecontracting officer may employ various methods of satisfyingthe
requirements of 5.207(c). For example, the contractingofficer may
meet the requirements of 5.207(c) by stamping the
solicitation, by a cover sheet to the solicitation, or by
placinga general statement in the display room.
(ii) The contracting officer need not comply with thedisplay
requirements of this section when the exemptions at5.202(a)(1),
(a)(4) through (a)(9), or (a)(11) apply, when oralsolicitations are
used, or when providing access to a notice ofproposed contract
action and solicitation through the GPE andthe notice permits the
public to respond to the solicitationelectronically.
(iii) Contracting officers may use electronic postingof
requirements in a place accessible by the general public atthe
Government installation to satisfy the public displayrequirement.
Contracting offices using electronic systems forpublic posting that
are not accessible outside the installationmust periodically
publicize the methods for accessing theinformation.
(b) In addition, one or more of the following methods maybe
used:
(1) Preparing periodic handouts listing proposed con-tracts, and
displaying them as in 5.101(a)(2).
(2) Assisting local trade associations in
disseminatinginformation to their members.
(3) Making brief announcements of proposed contractsto
newspapers, trade journals, magazines, or other mass com-munication
media for publication without cost to theGovernment.
(4) Placing paid advertisements in newspapers or
othercommunications media, subject to the following
limitations:
(i) Contracting officers shall place paid advertise-ments of
proposed contracts only when it is anticipated thateffective
competition cannot be obtained otherwise (see5.205(d)).
(ii) Contracting officers shall not place advertise-ments of
proposed contracts in a newspaper published andprinted in the
District of Columbia unless the supplies or ser-vices will be
furnished, or the labor performed, in the Districtof Columbia or
adjoining counties in Maryland or Virginia(44 U.S.C. 3701).
(iii) Advertisements published in newspapers mustbe under proper
written authority in accordance with44 U.S.C. 3702 (see
5.502(a)).
5.102 Availability of solicitations.(a)(1) Except as provided in
paragraph (a)(5) of this sec-
tion, the contracting officer must make available through theGPE
solicitations synopsized through the GPE, includingspecifications,
technical data, and other pertinent informationdetermined necessary
by the contracting officer. Transmis-sions to the GPE must be in
accordance with the interfacedescription available via the Internet
at https://www.fbo.gov.
(2) The contracting officer is encouraged, when practi-cable and
cost-effective, to make accessible through the GPEadditional
information related to a solicitation.
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5.102 FEDERAL ACQUISITION REGULATION
FAC 2005–100)
5.1-2 (
(3) The contracting officer must ensure that
solicitationstransmitted using electronic commerce are forwarded to
theGPE to satisfy the requirements of paragraph (a)(1) of
thissection.
(4) When an agency determines that a solicitation con-tains
information that requires additional controls to monitoraccess and
distribution (e.g., technical data, specifications,maps, building
designs, schedules, etc.), the information shallbe made available
through the enhanced controls of the GPE,unless an exception in
paragraph (a)(5) of this section applies.The GPE meets the synopsis
and advertising requirements ofthis part.
(5) The contracting officer need not make a
solicitationavailable through the GPE as required in paragraph
(a)(4) ofthis section, when—
(i) Disclosure would compromise the national secu-rity (e.g.,
would result in disclosure of classified information,or information
subject to export controls) or create other secu-rity risks. The
fact that access to classified matter may be nec-essary to submit a
proposal or perform the contract does not,in itself, justify use of
this exception;
(ii) The nature of the file (e.g., size, format) does notmake it
cost-effective or practicable for contracting officers toprovide
access to the solicitation through the GPE; or
(iii) The agency’s senior procurement executivemakes a written
determination that access through the GPE isnot in the Government’s
interest.
(6) When an acquisition contains brand name specifica-tions, the
contracting officer shall include with the solicitationthe
justification or documentation required by 6.302-1(c),13.106-1(b),
or 13.501, redacted as necessary (see 6.305).
(b) When the contracting officer does not make a solicita-tion
available through the GPE pursuant to paragraph (a)(5) ofthis
section, the contracting officer—
(1) Should employ other electronic means (e.g., CD-ROM or
electronic mail) whenever practicable and cost-effective. When
solicitations are provided electronically onphysical media (e.g.,
disks) or in paper form, the contractingofficer must—
(i) Maintain a reasonable number of copies of solic-itations,
including specifications and other pertinent informa-
tion determined necessary by the contracting officer
(uponrequest, potential sources not initially solicited should
bemailed or provided copies of solicitations, if available);
(ii) Provide copies on a “first-come-first-served”basis, for
pickup at the contracting office, to publishers, tradeassociations,
information services, and other members of thepublic having a
legitimate interest (for construction, see36.211); and
(iii) Retain a copy of the solicitation and other doc-uments for
review by and duplication for those requestingcopies after the
initial number of copies is exhausted; and
(2) May require payment of a fee, not exceeding theactual cost
of duplication, for a copy of the solicitationdocument.
(c) In addition to the methods of disseminating proposedcontract
information in 5.101(a) and (b), provide, uponrequest to small
business concerns, as required by15 U.S.C. 637(b)—
(1) A copy of the solicitation and specifications. In thecase of
solicitations disseminated by electronic data inter-change,
solicitations may be furnished directly to the elec-tronic address
of the small business concern;
(2) The name and telephone number of an employee ofthe
contracting office who will answer questions on the solic-itation;
and
(3) Adequate citations to each applicable major Federallaw or
agency rule with which small business concerns mustcomply in
performing the contract.
(d) When electronic commerce (see Subpart 4.5) is used inthe
solicitation process, availability of the solicitation may
belimited to the electronic medium.
(e) Provide copies of a solicitation issued under other thanfull
and open competition to firms requesting copies that werenot
initially solicited, but only after advising the requester ofthe
determination to limit the solicitation to a specified firmor firms
as authorized under Part 6.
(f) This section 5.102 applies to classified contracts to
theextent consistent with agency security requirements
(see5.202(a)(1)).
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SUBPART 5.2—SYNOPSES OF PROPOSED CONTRACT ACTIONS 5.202
FAC 2005–100 AUGUST 22, 2018
5.2-1
Subpart 5.2—Synopses of Proposed Contract Actions
5.201 General.(a) As required by the Small Business Act
(15 U.S.C. 637(e)) and the Office of Federal ProcurementPolicy
Act (41 U.S.C. 1708), agencies must make notices ofproposed
contract actions available as specified in paragraph(b) of this
section.
(b)(1) For acquisitions of supplies and services, other
thanthose covered by the exceptions in 5.202 and the special
situ-ations in 5.205, the contracting officer must transmit a
noticeto the GPE, for each proposed—
(i) Contract action meeting the threshold in5.101(a)(1);
(ii) Modification to an existing contract for addi-tional
supplies or services that meets the threshold in5.101(a)(1); or
(iii) Contract action in any amount when advanta-geous to the
Government.
(2) When transmitting notices using electronic com-merce,
contracting officers must ensure the notice is for-warded to the
GPE.
(c) The primary purposes of the notice are to improve
smallbusiness access to acquisition information and enhance
com-petition by identifying contracting and
subcontractingopportunities.
(d) The GPE may be accessed via the Internet at
https://www.fbo.gov.
5.202 Exceptions.The contracting officer need not submit the
notice required
by 5.201 when—(a) The contracting officer determines that—
(1) The synopsis cannot be worded to preclude disclo-sure of an
agency’s needs and such disclosure would compro-mise the national
security (e.g., would result in disclosure ofclassified
information). The fact that a proposed solicitationor contract
action contains classified information, or thataccess to classified
matter may be necessary to submit a pro-posal or perform the
contract does not, in itself, justify use ofthis exception to
synopsis;
(2) The proposed contract action is made under the con-ditions
described in 6.302-2 (or, for purchases conductedusing simplified
acquisition procedures, if unusual and com-pelling urgency
precludes competition to the maximum extentpracticable) and the
Government would be seriously injuredif the agency complies with
the time periods specified in5.203;
(3) The proposed contract action is one for which eitherthe
written direction of a foreign government reimbursing theagency for
the cost of the acquisition of the supplies or ser-vices for such
government, or the terms of an international
agreement or treaty between the United States and a
foreigngovernment, or international organizations, has the effect
ofrequiring that the acquisition shall be from specified
sources;
(4) The proposed contract action is expressly authorizedor
required by a statute to be made through another Govern-ment
agency, including acquisitions from the Small
BusinessAdministration (SBA) using the authority of section 8(a)
ofthe Small Business Act (but see 5.205(f)), or from a
specificsource such as a workshop for the blind under the rules of
theCommittee for Purchase from People Who Are Blind orSeverely
Disabled;
(5) The proposed contract action is for utility servicesother
than telecommunications services and only one sourceis
available;
(6) The proposed contract action is an order placedunder subpart
16.5. When the order contains brand-namespecifications, see
especially 16.505(a)(4);
(7) The proposed contract action results from accep-tance of a
proposal under the Small Business InnovationDevelopment Act of 1982
(Pub. L. 97-219);
(8) The proposed contract action results from the accep-tance of
an unsolicited research proposal that demonstrates aunique and
innovative concept (see 2.101) and publication ofany notice
complying with 5.207 would improperly disclosethe originality of
thought or innovativeness of the proposedresearch, or would
disclose proprietary information associ-ated with the proposal.
This exception does not apply if theproposed contract action
results from an unsolicited researchproposal and acceptance is
based solely upon the unique capa-bility of the source to perform
the particular research servicesproposed (see
6.302-1(a)(2)(i));
(9) The proposed contract action is made for
perishablesubsistence supplies, and advance notice is not
appropriate orreasonable;
(10) The proposed contract action is made under condi-tions
described in 6.302-3, or 6.302-5 with regard to brandname
commercial items for authorized resale, or 6.302-7, andadvance
notice is not appropriate or reasonable;
(11) The proposed contract action is made under theterms of an
existing contract that was previously synopsizedin sufficient
detail to comply with the requirements of 5.207with respect to the
current proposed contract action;
(12) The proposed contract action is by a Defenseagency and the
proposed contract action will be made and per-formed outside the
United States and its outlying areas, andonly local sources will be
solicited. This exception does notapply to proposed contract
actions covered by the WorldTrade Organization Government
Procurement Agreement ora Free Trade Agreement (see subpart
25.4);
(13) The proposed contract action—(i) Is for an amount not
expected to exceed the sim-
plified acquisition threshold;(ii) Will be made through a means
that provides
access to the notice of proposed contract action through theGPE;
and
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5.203 FEDERAL ACQUISITION REGULATION
FAC 2005–100)
5.2-2 (
(iii) Permits the public to respond to the
solicitationelectronically; or
(14) The proposed contract action is made under condi-tions
described in 6.302-3 with respect to the services of anexpert to
support the Federal Government in any current oranticipated
litigation or dispute.
(b) The head of the agency determines in writing, after
con-sultation with the Administrator for Federal Procurement
Pol-icy and the Administrator of the Small BusinessAdministration,
that advance notice is not appropriate orreasonable.
5.203 Publicizing and response time.Whenever agencies are
required to publicize notice of pro-
posed contract actions under 5.201, they must proceed
asfollows:
(a) An agency must transmit a notice of proposed contractaction
to the GPE (see 5.201). All publicizing and responsetimes are
calculated based on the date of publication. The pub-lication date
is the date the notice appears on the GPE. Thenotice must be
published at least 15 days before issuance of asolicitation, or a
proposed contract action the Governmentintends to solicit and
negotiate with only one source under theauthority of 6.302, except
that, for acquisitions of commercialitems, the contracting officer
may—
(1) Establish a shorter period for issuance of thesolicitation;
or
(2) Use the combined synopsis and solicitation proce-dure (see
12.603).
(b) The contracting officer must establish a
solicitationresponse time that will afford potential offerors a
reasonableopportunity to respond to each proposed contract
action,(including actions where the notice of proposed
contractaction and solicitation information is accessible through
theGPE), in an amount estimated to be greater than $25,000, butnot
greater than the simplified acquisition threshold; or eachcontract
action for the acquisition of commercial items in anamount
estimated to be greater than $25,000. The contractingofficer should
consider the circumstances of the individualacquisition, such as
the complexity, commerciality, availabil-ity, and urgency, when
establishing the solicitation responsetime.
(c) Except for the acquisition of commercial items
(see5.203(b)), agencies shall allow at least a 30-day response
timefor receipt of bids or proposals from the date of issuance of
asolicitation, if the proposed contract action is expected toexceed
the simplified acquisition threshold.
(d) Agencies shall allow at least a 30 day response timefrom the
date of publication of a proper notice of intent to con-tract for
architect-engineer services or before issuance of anorder under a
basic ordering agreement or similar arrange-ment if the proposed
contract action is expected to exceed thesimplified acquisition
threshold.
(e) Agencies must allow at least a 45-day response time
forreceipt of bids or proposals from the date of publication of
thenotice required in 5.201 for proposed contract actions
catego-rized as research and development if the proposed
contractaction is expected to exceed the simplified
acquisitionthreshold.
(f) Nothing in this subpart prohibits officers or employeesof
agencies from responding to requests for information.
(g) Contracting officers may, unless they have evidence tothe
contrary, presume the notice was published one day
aftertransmission to the GPE. This presumption does not negatethe
mandatory waiting or response times specified inparagraphs (a)
through (d) of this section. Upon learning thata particular notice
has not in fact been published within thepresumed timeframes,
contracting officers should considerwhether the date for receipt of
offers can be extended orwhether circumstances have become
sufficiently compellingto justify proceeding with the proposed
contract action underthe authority of 5.202(a)(2).
(h) In addition to other requirements set forth in this
sec-tion, for acquisitions covered by the World Trade Organiza-tion
Government Procurement Agreement or a Free TradeAgreement (see
subpart 25.4), the period of time betweenpublication of the
synopsis notice and receipt of offers mustbe no less than 40 days.
However, if the acquisition fallswithin a general category
identified in an annual forecast, theavailability of which is
published, the contracting officer mayreduce this time period to as
few as 10 days.
5.204 Presolicitation notices.Contracting officers must provide
access to presolicitation
notices through the GPE (see 15.201 and 36.213-2). The
con-tracting officer must synopsize a proposed contract
actionbefore issuing any resulting solicitation (see 5.201 and
5.203).
5.205 Special situations.(a) Research and development (R&D)
advance notices.
Contracting officers may transmit to the GPE advance noticesof
their interest in potential R&D programs whenever
marketresearch does not produce a sufficient number of concerns
toobtain adequate competition. Advance notices must not beused
where security considerations prohibit such publication.Advance
notices will enable potential sources to learn of R&Dprograms
and provide these sources with an opportunity tosubmit information
which will permit evaluation of theircapabilities. Contracting
officers must consider potentialsources which respond to advance
notices for a subsequentsolicitation. Advanced notices must be
entitled “Research andDevelopment Sources Sought” and include the
name and tele-phone number of the contracting officer or other
contractingactivity official from whom technical details of the
project canbe obtained. This will enable sources to submit
informationfor evaluation of their R&D capabilities.
Contracting officers
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SUBPART 5.2—SYNOPSES OF PROPOSED CONTRACT ACTIONS 5.207
(FAC 2005-100)
5.2-3
must synopsize (see 5.201) all subsequent solicitations
forR&D contracts, including those resulting from a
previouslysynopsized advance notice, unless one of the exceptions
in5.202 applies.
(b) Federally Funded Research and Development Centers.Before
establishing a Federally Funded Research and Devel-opment Center
(FFRDC) (see Part 35) or before changing itsbasic purpose and
mission, the sponsor must transmit at leastthree notices over a
90-day period to the GPE and the FederalRegister, indicating the
agency’s intention to sponsor anFFRDC or change the basic purpose
and mission of anFFRDC. The notice must indicate the scope and
nature of theeffort to be performed and request comments. Notice is
notrequired where the action is required by law.
(c) Special notices. Contracting officers may transmit tothe GPE
special notices of procurement matters such as busi-ness fairs,
long-range procurement estimates, prebid or pre-proposal
conferences, meetings, and the availability of draftsolicitations
or draft specifications for review.
(d) Architect-engineering services. Contracting officersmust
publish notices of intent to contract for architect-engi-neering
services as follows:
(1) Except when exempted by 5.202, contracting offi-cers must
transmit to the GPE a synopsis of each proposedcontract action for
which the total fee (including phases andoptions) is expected to
exceed $25,000.
(2) When the total fee is expected to exceed $15,000 butnot
exceed $25,000, the contracting officer must comply
with5.101(a)(2). When the proposed contract action is not
requiredto be synopsized under paragraph (d)(1) of this section,
thecontracting officer must display a notice of the solicitation
ora copy of the solicitation in a public place at the
contractingoffice. Other optional publicizing methods are
authorized inaccordance with 5.101(b).
(e) Public-private competitions under OMB Circular A-76. (1) The
contracting officer shall make a formal publicannouncement for each
streamlined or standard competition.The public announcement shall
include, at a minimum, theagency, agency component, location, type
of competition(streamlined or standard), activity being competed,
incum-bent service providers, number of Government personnel
per-forming the activity, name of the Competitive SourcingOfficial,
name of the contracting officer, name of the AgencyTender Official,
and projected end date of the competition.
(2) The contracting officer shall announce the end of
thestreamlined or standard competition by making a formal pub-lic
announcement of the performance decision. (See OMBCircular
A-76.)
(f) Section 8(a) competitive acquisition. When a nationalbuy
requirement is being considered for competitive acquisi-tion
limited to eligible 8(a) participants under subpart 19.8,the
contracting officer must transmit a synopsis of the pro-posed
contract action to the GPE. The synopsis may be trans-
mitted to the GPE concurrent with submission of the
agencyoffering (see 19.804-2) to the Small Business
Administration(SBA). The synopsis should also include
information—
(1) Advising that the acquisition is being offered
forcompetition limited to eligible 8(a) participants;
(2) Specifying the North American Industry Classifica-tion
System (NAICS) code;
(3) Advising that eligibility to participate may berestricted to
8(a) participants in either the developmental stageor the
developmental and transitional stages; and
(4) Encouraging interested 8(a) participants to request acopy of
the solicitation as expeditiously as possible since thesolicitation
will be issued without further notice upon SBAacceptance of the
requirement for the section 8(a) program.
(g) Notification to the public of rationale for
bundledrequirement. The agency is encouraged to provide
notificationof the rationale for any bundled requirement to the GPE
beforeissuing the solicitation of any bundled requirement
(see7.107-5(b)(2)).
5.206 Notices of subcontracting opportunities.(a) The following
entities may transmit a notice to the GPE
to seek competition for subcontracts, to increase
participationby qualified HUBZone small business, small, small
disadvan-taged, women-owned small business, veteran-owned
smallbusiness and service-disabled veteran-owned small
businessconcerns, and to meet established subcontracting plan
goals:
(1) A contractor awarded a contract exceeding$150,000 that is
likely to result in the award of anysubcontracts.
(2) A subcontractor or supplier, at any tier, under a con-tract
exceeding $150,000, that has a subcontracting opportu-nity
exceeding $15,000.
(b) The notices must describe—(1) The business opportunity;(2)
Any prequalification requirements; and(3) Where to obtain technical
data needed to respond to
the requirement.
5.207 Preparation and transmittal of synopses.(a) Content. Each
synopsis transmitted to the GPE must
address the following data elements, as applicable:(1) Action
Code.(2) Date.(3) Year.(4) Contracting Office ZIP Code.(5) Product
or Service Code.(6) Contracting Office Address.(7) Subject.(8)
Proposed Solicitation Number.(9) Closing Response Date.(10) Contact
Point or Contracting Officer.(11) Contract Award and Solicitation
Number.
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5.207 FEDERAL ACQUISITION REGULATION
FAC 2005–100 AUGUST 22, 2018
5.2-4
(12) Contract Award Dollar Amount.(13) Line Item Number.(14)
Contract Award Date.(15) Contractor.(16) Description.(17) Place of
Contract Performance.(18) Set-aside Status.
(b) Transmittal. Transmissions to the GPE must be inaccordance
with the interface description available via theInternet at
https://www.fbo.gov.
(c) General format for “Description.” Prepare a clear andconcise
description of the supplies or services that is notunnecessarily
restrictive of competition and will allow a pro-spective offeror to
make an informed business judgment as towhether a copy of the
solicitation should be requested includ-ing the following, as
appropriate:
(1) National Stock Number (NSN) if assigned.(2) Specification
and whether an offeror, its product, or
service must meet a qualification requirement in order to
beeligible for award, and identification of the office from
whichadditional information about the qualification requirementmay
be obtained (see subpart 9.2).
(3) Manufacturer, including part number, drawingnumber, etc.
(4) Size, dimensions, or other form, fit or
functionaldescription.
(5) Predominant material of manufacture.(6) Quantity, including
any options for additional
quantities.(7) Unit of issue.(8) Destination information.(9)
Delivery schedule.(10) Duration of the contract period.(11)
Sustainable acquisition requirements (or a descrip-
tion of high-performance sustainable building practicesrequired,
if for design, construction, renovation, repair, ordeconstruction)
(see parts 23 or 36).
(12) For a proposed contract action in an amount esti-mated to
be greater than $25,000 but not greater than the sim-plified
acquisition threshold, enter—
(i) A description of the procedures to be used inawarding the
contract (e.g., request for oral or written quota-tion or
solicitation); and
(ii) The anticipated award date.(13) For Architect-Engineer
projects and other projects
for which the product or service codes are insufficient,
pro-vide brief details with respect to: location, scope of
servicesrequired, cost range and limitations, type of contract,
esti-mated starting and completion dates, and any significant
eval-uation factors.
(14)(i) If the solicitation will include the FAR clause
at52.225-3, Buy American—Free Trade Agreements—IsraeliTrade Act, or
an equivalent agency clause, insert the following
notice in the synopsis: “One or more of the items under
thisacquisition is subject to Free Trade Agreements.”
(ii) If the solicitation will include the FAR clause at52.225-5,
Trade Agreements, or an equivalent agency clause,insert the
following notice in the synopsis: “One or more ofthe items under
this acquisition is subject to the World TradeOrganization
Government Procurement Agreement and FreeTrade Agreements.”
(iii) If the solicitation will include the FAR clause
at52.225-11, Buy American-Construction Materials underTrade
Agreements, 52.225-23, Required Use of AmericanIron, Steel, and
Manufactured Goods-Buy American Statute-Construction Materials
under Trade Agreements, or an equiv-alent agency clause, insert the
following notice in the synop-sis: “One or more of the items under
this acquisition is subjectto the World Trade Organization
Government ProcurementAgreement and Free Trade Agreements.”
(15) In the case of noncompetitive contract actions(including
those that do not exceed the simplified acquisitionthreshold),
identify the intended source and insert a statementof the reason
justifying the lack of competition.
(16)(i) Except when using the sole source authority at6.302-1,
insert a statement that all responsible sources maysubmit a bid,
proposal, or quotation which shall be consideredby the agency.
(ii) When using the sole source authority at 6.302-1,insert a
statement that all responsible sources may submit acapability
statement, proposal, or quotation, which shall beconsidered by the
agency.
(17) If solicitations synopsized through the GPE willnot be made
available through the GPE, provide informationon how to obtain the
solicitation.
(18) If the solicitation will be made available to inter-ested
parties through electronic data interchange, provide anyinformation
necessary to obtain and respond to the
solicitationelectronically.
(19) If the technical data required to respond to
thesolicitation will not be furnished as part of such
solicitation,identify the source in the Government, such as
https://www.fbo.gov, from which the technical data may be
obtained.
(d) Set-asides. When the proposed acquisition provides fora
total or partial small business program set-aside, or when
theproposed acquisition provides for a local area set-aside
(seesubpart 26.2), the contracting officer shall identify the type
ofset-aside in the synopsis and in the solicitation.
(e) Codes to be used in Synopses to identify services or
sup-plies. Contracting officers must use one of the
classificationcodes identified at https://www.fbo.gov to identify
services orsupplies in synopses.
(f) Notice of solicitation cancellation. Contracting officersmay
publish notices of solicitation cancellations (or
indefinitesuspensions) of proposed contract actions in the GPE.
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SUBPART 5.7—PUBLICIZING REQUIREMENTS UNDER THE AMERICAN RECOVERY
AND REINVESTMENT ACT OF 2009 5.705
FAC 2005–100 AUGUST 22, 2018
5.7-1
Subpart 5.7—Publicizing Requirements Under the American Recovery
and
Reinvestment Act of 2009
5.701 Scope.This subpart prescribes posting requirements for
presolic-
itation and award notices for actions funded in whole or in
partby the American Recovery and Reinvestment Act of 2009(Pub. L.
111-5) (Recovery Act). The requirements of this sub-part enhance
transparency to the public.
5.702 Applicability.This subpart applies to all actions expected
to exceed
$25,000 funded in whole or in part by the Recovery Act.Unlike
subparts 5.2 and 5.3, this subpart includes additionalrequirements
for orders and for actions that are not both fixed-price and
competitive.
5.703 Definition.As used in this subpart—“Task or delivery order
contract” means a “delivery order
contract,” and a “task order contract,” as defined in
16.501-1.For example, it includes Governmentwide Acquisition
Con-tracts (GWACs), multi-agency contracts (MACs), and
otherindefinite-delivery/indefinite-quantity contracts, whether
sin-gle award or multiple award. It also includes Federal
SupplySchedule contracts (including Blanket Purchase
Agreementsunder Subpart 8.4).
5.704 Publicizing preaward.(a)(1) Follow the publication
procedures at 5.201.
(2) In addition, notices of proposed contract actions
arerequired for orders exceeding $25,000, funded in whole or inpart
by the Recovery Act, which are issued under task or deliv-ery order
contracts. This does not include modifications toexisting orders,
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