This is a text only un-signed version of a USDA letter including 2 attachments.


USDA

Office of the Assistant Secretary for Administration

1400 Independence Avenue S.W.,
Washington, DC 20250-0103


To: Head of Contracting Activities Procurement Council Members.

From: Boyd K. Rutherford,
Assistant Secretary for Administration,
Chief Acquisition Officer

Signed January 2, 2008.

Subject: Ensuring Inclusion of FAR Clauses Pertaining to the Privacy Act of 1974, in all Contract.



The Privacy Act of 1974 (5 U.S.C. 55a) requires that when an agency contracts for the design, development, or operation of a system of records on individuals on behalf of the agency to accomplish an agency function, the agency must apply the requirements of the Act to the contractor and its employees working on the contract.

The Federal Acquisition Regulation (FAR), subject 24.102 further states that:

1. An agency officer or employee may be criminally liable for violations of the Act. When the contract provides for operation of a system of records on individuals, contractors and their employees are considered employees of the agency for purposes of the criminal penalties of the Act.

2. If a contract specifically provides for the design, development, or operation of a system of records on individuals on behalf of an agency to accomplish an agency function, the agency must apply the requirements of the Act to the contractor and its employees working on the contract. The system of records operated under the contract is deemed to be maintained by the agency and is subject to the Act.

3. Agencies, which within the limits of their authorities, fail to require that systems of records on individuals operated on their behalf under contracts be operated in conformance with the Act may be civilly liable to individuals injured as a consequence of any subsequent failure to maintain records in conformance with the Act.



To strengthen the USDA's commitment to protection of individual privacy and ensure compliance with the Privacy Act, please make certain that all solicitations and contracts where the design, development, or operation of a system of records on individuals is required to accomplish an agency function, contains the following clauses:

1. 52.224-1, titled, Privacy Act Notification: and

2. 52.224-2, titled, Privacy Act


If you have any questions or require additional information regarding this matter, please contact Millisa Gary at 202-720-2371, millisa.gary@usda.gov or Todd Repass at 202-690-1060, todd.repass@usda.gov.




Attachment 1

As prescribed in 24.104, insert the following clause in solicitations and contracts, when the the design, development, or operation of a system of records on individuals is required to accomplish an agency function:

PRIVACY ACT NOTIFICATION (April 1984)
The Contractor will be required to design, development, or operation of a system of records on individuals, to accomplish an agency function subject to the Privacy Act of 194, Public Law 93-579, December 31, 1974 (5 U.S.C. 55a) and applicable agency regulations. Violation of the Act may involve the imposition of criminal penalties.

(End of Clause)



Attachment 2

As prescribed in 24.104, insert the following clause in solicitations and contracts, when the the design, development, or operation of a system of records on individuals is required to accomplish an agency function:

PRIVACY ACT (April 1974)

(a) The Contractor agrees to -  

(1) Comply with the Privacy Act of 1974 (the Act) and the agency rules and regulationsissued under the Act in the design, development, or operation of any system of records on individuals to accomplish an agency function when the contract specifically identifies--
(i) The systems of records; and 
(ii) The design, development, or operation work that the contractor is to perform; 

(2) Include the Privacy Act notification contained in this contract in every solicitation and resulting subcontract and in every subcontract awarded without a solicitation, when the work statement in the proposed subcontract requires the design, development, oroperation of a system of records on individuals that is subject to the Act; and 

(3) Include this clause, including this subparagraph (3), in all subcontracts awarded underthis contract which requires the design, development, or operation of such a system ofrecords.

(b) In the event of violations of the Act, a civil action may be brought against the agency involved when the violation concerns the design, development, or operation of a system of records on individuals to accomplish an agency function, and criminal penalties may be imposed upon the officers or employees of the agency when the violation concerns the operation of a system of records on individuals to accomplish an agency function. Forpurposes of the Act, when the contract is for the operation of a system of records on individuals to accomplish an agency function, the Contractor and any employee of theContractor is considered to be an employee of the agency.

(c)
(1) "Operation of a system of records," as used in this clause, means performance ofany of the activities associated with maintaining the system of records, including thecollection, use, and dissemination of records.

(2) "Record," as used in this clause, means any item, collection, or grouping ofinformation about an individual that is maintained by an agency, including, but notlimited to, education, financial transactions, medical history, and criminal or employment history and that contains the person's name, or the identifying number, symbol, or otheridentifying particular assigned to the individual, such as a fingerprint or voiceprint or a photograph.

(3) "System of records on individuals," as used in this clause means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particularassigned to the individual.

(End of Clause)