(3) Distribution processes which assure timely receipt by all affected contracting offices; and

(4) Provisions for maintaining compliance with FAR 1.304.

(d) The Director, Office of Operations, is responsible for evaluating coverage under the AGAR System to determine applicability to other agencies and for recommending coverage to the FAR Secretariat for inclusion in the FAR.

(e) Recommendations for revision of existing FAR coverage or new FAR coverage shall be submitted by the HCA to the Director, Office of Operations, for further action.

401.370 Departmental directives.

Subject to the policies of FAR 1.3, the Department from time to time may issue internal directives of the following types to establish procedures, standards, guidance, or methods of performing duties, functions, or operations.

(a) Departmental Regulations (DR). Permanent directives signed by the Director, Office of Operations, to issue policies, authorities, and operating instructions.

(b) Departmental Notices (DN). Temporary directives signed by the Director, Office of Operations, to communicate policy or procedure which require immediate dissemination.

(c) Secretary's Memoranda. Temporary directives signed by the Secretary which establish major policy concerning missions and programs of the Department, direct initial or implementing action on these programs, or redirect or change policy or action in these areas.

Subpart 401.4-Deviations From the FAR and AGAR

401.402 Policy.

(a) Requests for authority to deviate from the provisions of the FAR or the AGAR shall be submitted in writing as far in advance as the exigencies of the situation will permit. Each request for deviation shall contain the following:

(1) A statement of the deviation desired, including identification of the

specific paragraph number(s) of the FAR or AGAR;

(2) The reason why the deviation is considered necessary or would be in the best interest of the Government;

(3) If applicable, the name of the contractor and identification of the contract affected;

(4) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request;

(5) A description of the intended effect of the deviation;

(6) A statement of the period of time for which the deviation is needed; and (7) Any pertinent background information which will contribute to a full understanding of the desired devi

In individual cases, deviations from either the FAR or the AGAR will be authorized only when essential to effect a necessary acquisition or where special circumstances make such deviations clearly in the best interest of the Government. Except for cost principles, HCA's may approve individual deviations from the AGAR, after coordinating with the General Counsel and the Director, Office of Operations. No deviations from the FAR or AGAR may be authorized at the contracting office level. A copy of each deviation and its supporting documentation shall be provided to the Director, Office of Operations. Deviations involving cost principles contained in FAR Part 31 and Part 431, or any FAR deviation, shall not be made unless such action is authorized by the Director, Office of Operations, after consultation with the Office of General Counsel and any other appropriate office, on the basis of a written justification stating clearly the special circumstances involved.

401.404 Class deviations.

Where deviations from the FAR or AGAR are considered necessary for classes of contracts, requests for authority to deviate shall be submitted in writing to the Director, Office of Operations, who will, after obtaining appropriate concurrences from other

(a) The authority and responsibility vested in the Secretary to manage the Department's acquisition function is delegated through the Assistant Secretary for Administration to the Director, Office of Operations, who is the USDA Procurement Executive, pursuant to 7 CFR 2.76(a) (1) and (10). This broad authority includes, but is not limited to, the following responsibilities:

(1) Prescribing and publishing Departmental acquisition policies, regulations, and procedures.

(2) Taking any necessary actions consistent with policies, regulations, and procedures with respect to purchases, contracts, leases, and other transactions.

(3) Designating contracting officers. (4) Establishing clear lines of contracting authority.

(5) Evaluating and monitoring the performance of the Department's acquisition system.

(6) Managing and enhancing career development of the contracting work force.

(7) Participating in the development of Government-wide acquisition policies, regulations, and standards and determining specific areas where Government-wide performance standards should be established and applied.

(8) Determining areas of Department-unique standards and developing unique Department-wide standards.

(9) Acting as the advocate for competition.

(10) Certifying to the Secretary that the acquistion system meets approved standards.

(b) The Director, Office of Operations, may delegate contracting authority to the Heads of Contracting Activities (HCA's) and the responsibility to manage their acquisition function. Delegations of authority for automatic data processing (ADP) equipment, services and related supplies are limited in accordance with Part 439.

(c) HCA's may redelegate contracting authority, without the power of redelegation, only to qualified contracting officers as prescribed in 401.603. Contracts may be entered into and signed only by the Agency Head, HCA's and appointed contracting offi

cers.

401.602-1 Authority.

AUTHORITY: 5 U.S.C. 301 and 40 U.S.C.

486(c).

SOURCE: 49 FR 12113, Mar. 28, 1984 (interim rule), and 50 FR 14197, Apr. 10, 1985 (final rule), unless otherwise noted.

402.000 Scope of part.

As used throughout this regulation, the following words and terms are used as defined in this subpart unless the context in which they are used clearly requires a different meaning, or a different definition is prescribed for a particular part or portion of a part.

402.001 Definitions.

"Agency Head" or "Head of the Agency” means the Secretary of Agriculture, Deputy Secretary, and the Assistant Secretary for Administration.

"Contracting Activity" means the Office of Operations and other USDA organizations having delegated acquisition contracting authority. A contracting activity's authority and responsibility to manage its acquisition contracting function and those of other organizations for which it provides administrative support are established by a written delegation from the Director, Office of Operations.

"Head of the Contracting Activity" (HCA) means the official who has overall responsibility for managing the contracting activity, i.e., Chief, Forest Service; Administrator, Agricultural Marketing Services; etc. Each HCA may designate one individual from the contracting activity to act as the HCA and perform the delegated contract management functions for the contracting activity.

"Procurement Executive" means the agency official appointed as such by the Head of the Agency pursuant to Exectutive Order 12352. The Director, Office of Operations, has been designated as the USDA Procurement Executive.

403.204 Treatment of violations.

The HCA shall review the report and consult with the Offices of General Counsel and Inspector General, as appropriate, to determine whether further action should be pursued. If it is found that the facts and circumstances warrant further action, the HCA shall give the contractor formal, written notice which summarizes the reported violation and affords the contractor the opportunity to make a written or oral response within a reasonable, specified period after receipt of the notice. The notice shall be sent by certfied mail with return receipt requested. Oral presentations shall follow the procedures outlined in FAR 3.204(b). The HCA shall furnish copies of any adverse determination to the contracting officer and the Department Debarring Officer for their subsequent considerations under FAR 3.204(c) (1) and (2), respectively.

Subpart 403.3-Reports of Identical Bids and Suspected Antitrust Violations

403.302 Reporting identical bids.

Executive Order 12430 dated July 6, 1983, revoked the requirement of Executive Order 10936 dated April 24, 1961, to submit reports to the Attorney General regarding identical bids.

403.303 Reporting suspected antitrust violations.

Contracting officers shall report the circumstances of suspected violations of antitrust laws to the Office of Inspector General in accordance with procedures in Departmental Regulation 1710-2.

[50 FR 14197, Apr. 10, 1985]

Subpart 403.4-Contingent Fees

403.408 Evaluation of the SF-119.

403.408-1 Responsibilities.

The review required by FAR 3.4081(b) shall be performed at a level higher than the contracting officer.

403.409 Misrepresentations or violations of the Covenant Against Contingent Fees.

(a) A suspected misrepresentation or violation of the Covenant Against Contingent Fees shall be documented in writing by the contracting officer and reported immediately to the HCA. The HCA shall determine if a violation has occurred and take action in accordance with FAR 3.409(b).

(b) If the HCA decides to refer the case to the Department of Justice, it should be referred directly with a copy of the report and referral submitted to the Director, Office of Operations.

Subpart 403.5-Other Improper Business Practices

403.502 Subcontractor kickbacks.

Contracting officers shall report the circumstances of suspected violations of the Anti-Kickback Act (41 U.S.C. 51-54) to the Office of Inspector General in accordance with procedures in Departmental Regulation 1710-2. [50 FR 14197, Apr. 10, 1985]

Subpart 403.6-Contracts With Government Employees or Organizations Owned or Controlled by Them

403.602 Exceptions.

The HCA is authorized to except a contract from the policy in FAR 3.601.

403.603 Responsibilities of the contracting officer.

The contracting officer, when requesting authorization under 403.602, shall prepare a written determination and findings for the signature of the HCA. The determination shall document compliance with FAR 3.603 specifying the compelling reason(s) for award, and be placed in the contract file.

Subpart 404.6-Contract Reporting

404.601 Federal Procurement Data System.

(a) The Procurement Division, Office of Operations, manages an automated procurement reporting system for USDA. This system provides the Federal Procurement Data System with all required contracting information.

(b) Contracting activities shall report all contract actions into the USDA Procurement Reporting System in accordance with the regulations and notices of the 5010 classification series in the Departmental Directives System.

(c) Questions about the USDA Procurement Reporting System should be directed to the Procurement Division, Office of Operations, Washington, D.C. 20250.

Subpart 404.8-Contract Files

404.805 Disposal of contract files.

Contracting activities shall comply with their organizational file plans and disposition guides with respect to procedures for handling, storing, and disposing of contract files and other acquisition related documents. Contracting activity file plans and disposition guides shall not include provisions that permit contract files to be destroyed before the times indicated in FAR 4.805.

404.870 Document numbering system.

The Department has prescribed a standardized numbering system for acquisition documents.

404.870-1 Purchase order/delivery order numbering system.

USDA purchasing activities shall number their purchase/delivery orders in accordance with NFC Procedures Manual, "Purchase Orders," Title II, Section 5.1.

404.870-2 Contract numbering system.

Contracting offices shall assign an 8 to 12-digit number to all contracts. Contract numbers will be divided into