Subpart 422.70-Service Contract Act of 1965 SOURCE: 53 FR 6066, Feb. 29, 1988, unless otherwise noted. 422.7001 Applicability. (a) General. Pending coverage in the FAR, the policies and procedures in the Federal Procurement Regulations (FPR) Subpart 1-12.9, Service Contract Act of 1965, as amended by the FPR Temporary Regulation 76, Revision of Labor Standards for Federal Service Contracts, February 23, 1984, must be followed in acquisitions of services. This Subpart 422.70 implements the essential elements of the FPR Temporary Regulation 76 and includes the major changes to the Department of Labor (DOL) regulations, dated October 19, 1983. (b) Request for determinations and exemptions. The HCA shall direct requests for determinations regarding the applicability of the Service Contract Act and requests for exemptions from the Act to the Wage and Hour Administrator. 422.7002 Clause for contracts of $2,500 or less. The contracting officer shall insert the clause at 452.222-70, Service Contract Act of 1965-Contracts of $2,500 or less, in solicitations and contracts if the contract amount is expected to be $2,500 or less and the Service Contract Act of 1965 applies. 422.7003 Clauses for contracts over $2,500. (a) The contracting officer shall insert the clause at 452.222-71, Service Contract Act of 1965, as amended, in solicitations and contracts if the contract is subject to the Service Contract Act of 1965 and is (1) Expected to exceed $2,500 or (2) For an indefinite dollar amount and the contracting officer expects the contract amount to exceed $2,500 during any 12-month period. (b) The contracting officer shall insert the clauses at 452.222-72, Statement of Equivalent Rates for Federal Hires and 452.222-73, Fair Labor Standards Act and Service Contract Act-Price Adjustment, in solicitations and contracts if the contract is expected to be a fixed price service contract containing the clause at 452.222-71, Service Contract Act of 1965 (as amended), that exceeds the small purchase limitation. The clause at 452.222-73 is optional for small purchases. 422.7004 Notice of intention to make a service contract. (a) The Department of Labor (DOL) has issued a Service Contract Act Directory of Occupations to use in determining job classifications when procuring services. The directory contains occupational titles and descriptions that contracting offices must use when listing on SF 98a the classes of service employees to be used. When contracting officers are unable to find an appropriate title or description in the directory, they must develop and submit an appropriate occupational title and description for the work to DOL with the SF 98 request. (b) Requests to expedite wage determinations or to check the status of a request may be made by the contracting officer directly to the DOL Wage and Hour Administrator. 422.7005 Hearings. Requests for hearings under 29 CFR 4.11 will be made by the contracting officer through the head of the contracting activity to the Administrator, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC, 20210. All such requests shall be coordinated with the appropriate legal counsel. PART 423-ENVIRONMENT, CONSERVATION, AND OCCUPATIONAL SAFETY AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. 486(c). Subpart 423.1-Pollution Control and Clean Air and Water 423.104 Exemptions. (a) Requests for exemption shall be submitted to the Director, Office of Operations. The Office of Operations will coordinate review of the request with the appropriate staff and program officer and submit the request to the Assistant Secretary for Administration for decision. (b) The Office of Operations shall notify the Environmental Protection Agency upon the granting of an individual exemption, and shall consult with the Environmental Protection Agency in advance of the granting of any class exemption. [49 FR 12124, Mar. 28, 1984] PART 424-PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION Subpart 424.1—Protection of Individual Privacy Sec. 424.104 Contract clauses. Subpart 424.2-Freedom of Information Act 424.202 Policy. AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. 486(c). Subpart 424.1-Protection of 424.104 Contract clauses. When applicable, the contracting officer shall insert the clause at 452.22471, Confidentiality of Information, in contracts involving confidential information. [53 FR 6066, Feb. 29, 1988] Subpart 424.2—Freedom of Information Act 424.202 Policy. USDA implementation of the Freedom of Information and Privacy Acts is found in 7 CFR, Subtitle A, Part 1, Subparts A and G, respectively. Contracting officers shall follow these regulations when responding to requests for information or awarding contracts that will involve the design, development, or operation of a system of records on individuals to accomplish agency function. [49 FR 12124, Mar. 28, 1984] 425.105 Evaluating offers. (a) FAR 25.105 provides that the price of a domestic end product is unreasonable if it exceeds specified percentages. The FAR, however, permits the agency head to determine that offers above these percentages are acceptable. (1) Contracting officers who determine it is in the best interest of the Government to award a contract to a domestic firm whose offer exceeds the percentages specified in FAR 25.105(a) (1) and (2) may do so only with approval of the Assistant Secretary for Administration. (2) Requests for approval must: (i) Be directed to the Director, Office of Operations, by the HCA; (ii) Be in writing; and (iii) Provide a detailed justification for the reasonableness of the domestic offer. (b) If an award of more than $250,000 would be made to a domestic concern if the 12 percent factor were applied, but not if the 6 percent factor were applied, the Assistant Secretary for Administration shall decide whether award to the domestic concern would involve unreasonable cost. The HCA shall refer such proposed awards to the Director, Office of Operations, for coordination of the necessary approval. 425.108 Excepted articles, materials, and supplies. (a) The HCA shall determine if articles, materials, and supplies should be added to or deleted from the list in FAR 25.108(d)(1). The HCA shall provide a copy of all such determinations to the Director, Office of Operations. (b) The Director of the Office of Operations shall submit a copy of each determination to the FAR Council in accordance with FAR 25.108 (b) and (c). Subpart 425.2-Buy American Act— Construction Materials 425.202 Policy. (a) The Assistant Secretary for Administration shall make the determination prescribed in FAR 25.202(a)(2). (b) The HCA shall make the determination prescribed in FAR 25.202(a)(3) in accordance with the procedures in 425.108. (c) The HCA shall make the determination prescribed in FAR 25.202(b). 425.203 Evaluating offers. The Assistant Secretary for Administration may determine that the use of a particular domestic construction material would be impracticable or unreasonably increase the cost of the contract. If the Assistant Secretary makes such a determination, the restrictions of the Buy American Act Ishall be waived for that material for the contract in question. (a) If a contracting officer determines that the use of a particular domestic construction material should be waived for a contract, the contracting officer shall submit the proposed award and the information prescribed in FAR 25.203(b) through the HCA to the Director, Office of Operations. (b) The Director, Office of Operations, shall evaluate all waiver requests and make a recommendation for approval or disapproval to the Assistant Secretary for Administration. 425.204 Violations. Contracting officers shall, in accordance with the debarment procedures prescribed in 409.4, refer all violations of the clause found in FAR 52.225-5 to the Department Debarring Officer for possible debarment action. Subpart 425.3-Balance-of-Payments Program 425.302 Policy. The HCA shall make the determinations prescribed in FAR 25.302(b) (2) and (3) and may authorize differen tials greater than 50 percent as prescribed in FAR 25.302(c). Subpart 425.4-Purchases Under the Trade Agreements Act of 1979 425.402 Policy. Whenever the U.S. Trade Representative publishes a redetermination of the dollar threshold at which the Agreement on Government Procurement applies, the Department will set out the dollar threshold in a Departmental Notice, 5025 series. Contracting officers shall use the specified amount to complete paragraph (b) of the clause at FAR 52.225-9. [53 FR 6067, Feb. 29, 1988] 425.407 Solicitation provision and contract clause. The contracting officer shall insert the provision at 452.225-70, English Language and U.S. Currency Requirements, whenever the solicitation contains the provision at FAR 52.225-8. [53 FR 6067, Feb. 29, 1988] PART 426-[RESERVED] 428.102-3 Solicitation requirements. (a) The contracting officer shall insert the provision at 452.228-70, Notice of Required Bid Guarantee, in a solicitation if a performance bond or a performance and payment bond is required. (b) The contracting officer shall insert the clause at 452.228-71, Notice of Required Performance Security, in solicitations and contracts for construction or other service contracts over $25,000, which require the contractor to furnish a performance bond. (c) The contracting officer shall insert the clause at 452.228-72, Notice of Required Payment Security, in solicitations and contracts for construction exceeding $25,000. [53 FR 6067, Feb. 29, 1988] Subpart 428.2-Sureties 428.203 Options in lieu of sureties. HCA's shall establish procedures to ensure protection and conveyance of deposited securities of the types listed in FAR 28.203-1 and 28.203-2. Subpart 428.3-Insurance 428.310 Contract clause for work on a Government installation. The contracting officer shall insert the clause at 452.228-73, Insurance Coverage, in solicitations and contracts when a fixed-price contract is contemplated, the contract amount exceeds the appropriate small purchase limitation in FAR Part 13, the contract requires work on a Government installation and contains the clause at FAR 52.228-5, unless (a) Only a small amount of work is required on the Government installation (e.g., a few brief visits per month); or (b) All work on the Government installation is to be performed outside the United States, its possessions, and Puerto Rico. The contracting officer may insert the following clause in solicitations and contracts described in paragraphs (a) and (b) above if it is in the Government's interest to do so. If property liability insurance is required, the contracting officer shall use the clause with its Alternate I. [53 FR 6067, Feb. 29, 1988] 428.370 Government-owned vehicles operated in foreign countries. The Department is authorized to obtain insurance to cover liability incurred by any of its employees while acting within the scope of their employment and operating a Government-owned vehicle in a foreign country (7 U.S.C. 2262). PART 429-[RESERVED] PART 430-COST ACCOUNTING STANDARDS AUTHORITY: 5 U.S.C. 301 and 40 U.S.C. 486(c). |