Monday, 

August 23, 2010 

Part II 

Department of 

Education 

48 CFR Chapter 34 

Department of Education Acquisition 

Regulation; Proposed Rule 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
51884 Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Proposed Rules 

DEPARTMENT OF EDUCATION 

48 CFR Chapter 34 

[Docket ID ED–2010–OCFO–0015] 

RIN 1890–AA16 

Department of Education Acquisition 

Regulation 

AGENCY: Office of the Chief Financial 

Officer, Department of Education 

(Department). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

reissue the Department of Education 

Acquisition Regulation (EDAR) in order 

to update it to accurately implement the 

current Federal Acquisition Regulation 

(FAR) and Department policies. 

DATES: We must receive your comments 

on or before September 22, 2010. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by e-mail. Please 

submit your comments only one time, in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov to submit 

your comments electronically. 

Information on using Regulations.gov, 

including instructions for accessing 

agency documents, submitting 

comments, and viewing the docket, is 

available on the site under ‘‘How To Use 

This Site.’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Nicole 

Evans, U.S. Department of Education, 

400 Maryland Avenue, SW., room 7164, 

Potomac Center Plaza, Washington, DC 

20202–4200. 

Privacy Note: The Department’s policy for 

comments received from members of the 

public (including those comments submitted 

by mail, commercial delivery, or hand 

delivery) is to make these submissions 

available for public viewing in their entirety 

on the Federal eRulemaking Portal at 

www.regulations.gov. Therefore, commenters 

should be careful to include in their 

comments only information that they wish to 

make publicly available on the Internet. 

FOR FURTHER INFORMATION CONTACT: 

Nicole Evans. Telephone: (202) 245– 

6172 or via Internet: 

Nicole.Evans@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD), call the 

Federal Relay Service (FRS), toll free, at 

1–800–877–8339. 

Individuals with disabilities may 

obtain this document in an accessible 

format (e.g., braille, large print, 

audiotape, or computer diskette) on 

request to the contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

SUPPLEMENTARY INFORMATION: 

Invitation to Comment 

We invite you to submit comments 

regarding these proposed regulations. 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to identify 

clearly the specific section or sections of 

the proposed regulations that each of 

your comments addresses and to arrange 

your comments in the same order as the 

proposed regulations. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Order 12866 

and its overall requirement of reducing 

regulatory burden that might result from 

these proposed regulations. Please let us 

know of any further opportunities we 

should take to reduce potential costs or 

increase potential benefits while 

preserving the effective and efficient 

administration of the program. 

During and after the comment period, 

you may inspect all public comments 

about these proposed regulations by 

accessing Regulations.gov. You may also 

inspect the comments, in person, in 

room 7137, Potomac Center Plaza, 550 

12th Street, SW., Washington, DC, 

between the hours of 8:30 a.m. and 4:00 

p.m., Eastern time, Monday through 

Friday of each week except Federal 

holidays. 

Assistance to Individuals with 

Disabilities in Reviewing the 

Rulemaking Record 

On request, we will supply an 

appropriate aid, such as a reader or 

print magnifier, to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for these proposed regulations. If 

you want to schedule an appointment 

for this type of aid, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Background 

The EDAR was last updated in 1987. 

In the years since then, the FAR has 

changed substantially. These changes 

caused a need for the Department to 

update the EDAR so that it correctly 

implements the FAR and reflects 

Department policy. 

Significant Proposed Regulations 

We discuss substantive issues under 

the sections of the proposed regulations 

to which they pertain. Generally, we do 

not address proposed regulatory 

provisions that are technical or 

otherwise minor in effect. 

Generally, these proposed regulations 

are issued under the authority of 5 

U.S.C. 301, which authorizes the heads 

of agencies to issue regulations 

governing the agency, and 20 U.S.C. 

1018a, which authorizes procurement 

flexibility for the performance based 

organization (PBO), the Office of Federal 

Student Aid (FSA), for the delivery of 

Federal student financial assistance. We 

use the term PBO or FSA when referring 

to FSA in this preamble. 

Subchapter A—General 

Part 3401 ED Acquisition Regulation 

System 

FAR: FAR Part 1 (Federal acquisition 

regulations system) sets forth the 

purpose, authority, and structure of the 

FAR, authorizes agency FAR 

supplements and deviations from the 

FAR, and discusses career development, 

contracting authority, and 

responsibilities. 

Current Regulations: The current 

EDAR predates the procurement 

flexibility authorized by 20 U.S.C. 1018a 

and contains outdated information on 

the location of regulations and on the 

roles and responsibilities within the 

Department. The current regulations 

also do not include a section on 

ratification of unauthorized 

commitments or on the nomination and 

appointment of contracting officer’s 

representatives. 

Proposed Regulations: The proposed 

regulations would modify 3401.104 

(Applicability) to add subparagraph (b) 

explaining that the PBO has specific 

contracting authority. 

Proposed subparagraph (c) would add 

an explanation that when using nonappropriated funds the Department will 

follow the FAR and EDAR to the 

maximum extent practicable. 

We are proposing to revise 3401.105– 

3 (Copies) to reflect the current method 

for obtaining copies of this regulation. 

We are also proposing to revise 3401.3 

(Agency acquisition regulations) to add 

two paragraphs addressing policy 

regarding the agency’s supplementation 

of the FAR and explaining how the 

EDAR is published and codified. 

Proposed changes to 3401.4 

(Deviations) would make the Senior 

Procurement Executive (SPE) the 

approving official for individual 

deviations to the FAR and EDAR 

(3401.403), and the Chief Acquisition 


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Officer (CAO) the approving official for 

class deviations (3401.404). 

We are further proposing to revise 

3401.601 (General) to explain the 

current delegation of contracting 

authority in the Department. 

Proposed 3401.602–3 (Ratification of 

unauthorized commitments) would 

outline the Department’s policy and 

procedures on ratifying unauthorized 

commitments. 

Proposed 3401.670 (Nomination and 

appointment of contracting officer’s 

representatives (CORs)) would add 

information on nominating and 

appointing contracting officer’s 

representatives (CORs). Proposed 

3401.670–3 provides for Contracting 

Officers to insert a clause concerning 

CORs in all solicitations and contracts 

for which a COR will be (or is) 

appointed. 

Reasons: The proposed changes to 

this part provide the reference to the 

PBO statute authorizing the PBO’s 

procurement flexibilities and provide 

more information to the contracting 

community and the public about the 

EDAR, certain Department policies and 

procedures, and the roles and 

responsibilities of different contracting 

personnel in the Department. 

Part 3402 Definitions of Words and 

Terms 

FAR: FAR Part 2 (Definitions of words 

and terms) defines relevant words and 

terms used in the FAR. 

Current Regulations: The current 

EDAR’s part 3402 defines only two 

terms, Head of the Contracting Activity 

and Procurement Executive, and 

prescribes the use of a definitions 

clause. 

Proposed Regulations: We are 

proposing to revise 3402.101 

(Definitions) to add definitions for Chief 

Acquisition Officer, Chief of the 

Contracting Office, Contracting Officer’s 

Representative, Head of the Contracting 

Activity, Performance-Based 

Organization, Senior Procurement 

Executive, and Department or ED. 

Proposed 3402.101–70 (Abbreviations 

and acronyms) would add twelve 

abbreviations and acronyms relevant to 

the EDAR. 

Reasons: The proposed changes to 

this part would clarify the terminology 

and the definitions of terms used in the 

EDAR. 

Part 3403 Improper Business Practices 

and Personal Conflicts of Interest 

FAR: FAR Part 3 (Improper business 

practices and conflicts of interest) 

regulates standards of conduct, 

gratuities to government personnel, 

reports of suspected antitrust violations, 

contingent fees, and contracts with 

government employees or organizations 

owned or controlled by them. 

Current Regulations: The current 

EDAR requires Department personnel to 

report violations of the gratuities clause, 

antitrust violations, and 

misrepresentation or violation of the 

covenant against contingent fees. 

The current EDAR specifies that the 

approving official for contracts with 

government employees or organizations 

controlled by them is the Deputy Under 

Secretary for Management. 

Proposed Regulations: We are 

proposing to revise 3403.6 (Contracts 

with government employees or 

organizations owned or controlled by 

them) to change the approving official 

for exceptions to the policy in FAR 

3.601 (prohibiting contracts with 

Government employees or organizations 

owned or controlled by them) to the 

Head of Contracting Activity (HCA). 

Reasons: The proposed revisions 

identify the official delegated the 

authority to authorize exceptions to the 

policy in FAR 3.601. 

Subchapter B—Competition and 

Acquisition Planning 

Part 3405 Publicizing Contract Actions 

FAR: FAR Part 5 (Publicizing contract 

actions) regulates how agencies are to 

disseminate information on contract 

actions. 

Current Regulations: The current 

EDAR contains provisions on notices to 

perform market surveys and paid 

advertisements. The regulations do not 

implement the procurement flexibility 

authorized by the PBO statute. 

Proposed Regulations: We are 

proposing to revise 3405.2 (Synopses of 

proposed contract actions) to add four 

new sections implementing the PBO’s 

authorities related to publicizing, 

including the PBO’s authority related to 

modular contracting (3405.202 

Exceptions and 3405.205 Special 

Situations), reduced response 

timeframes (3405.203 Publicizing and 

response time), and two-phase source 

selection (3405.207 Preparation and 

transmittal of synopses). 

We are also proposing to add 

requirements to 3405.270 (Notices to 

perform market surveys) to require the 

contracting officer to include additional 

information in notices of proposed 

contract actions when anticipating a 

sole source contract. 

Reasons: The proposed changes to 

3405.2 would implement the PBO’s 

authorities for modular contracting, 

which mandate notice of requirements 

under section 1018a(g)(5)(A–C). The 

proposed change to 3405.270 would 

increase availability of information to 

the marketplace when the Department 

anticipates a sole source contract. 

Part 3406 Competition Requirements 

FAR: FAR Part 6 (Competition 

requirements) regulates how agencies 

compete various contract actions. 

Current Regulations: The current 

EDAR does not address this part of the 

FAR. 

Proposed Regulations: Proposed 

3406.001 (Applicability) would state 

that this part of the FAR does not apply 

to modular contracting performed by the 

PBO. 

Proposed 3406.3 (Other than full and 

open competition) would add new 

3406.302–5 (Authorized or required by 

statute) stating that the PBO can award 

noncompetitive awards as part of its 

modular contracting authority. 

Proposed 3406.5 (Competition 

advocates) would identify the 

Department’s Competition Advocate. 

Reasons: The proposed change to add 

this part would implement the PBO’s 

modular contracting authority 

authorized by statute and identify the 

Competition Advocate mandated in 

FAR 6.5. 

Part 3408 Required Sources of 

Supplies and Services 

FAR: FAR Part 8 (Required sources of 

supplies and services) mandates certain 

sources and details how agencies must 

use those sources. 

Current Regulations: The current 

EDAR requires a clause in subpart 

3408.8 (Acquisition of printing and 

related supplies) and addresses 

paperwork reduction in part 3427. 

Proposed Regulations: The proposed 

changes to 3452.208–71 (Printing) 

would update the definition of ‘‘unit’’ to 

match the definition in the Government 

Printing and Binding Regulations. 

Specifically, the allowable size counted 

as one unit is changed from an 8.5′′ x 

11′′ page to an image size of 10.75′′ x 

14.25′′ on an 11′′ x 17′′ page. The 

proposed inclusion of 3408.871 

(Paperwork Reduction) in this part 

would move the prescription for the 

paperwork reduction clause to the 

appropriate section of the EDAR. 

Reasons: The proposed changes 

would update the EDAR to match the 

Government Printing and Binding 

Regulations and the FAR structure. 

Part 3409 Contractor Qualifications 

FAR: FAR Part 9 (Contractor 

Qualifications) includes sections on 

debarment, suspension, and 

ineligibility, as well as organizational 

and consultant conflicts of interest. 

Current Regulations: The current 

EDAR does not adequately cover the 


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topics of debarment, suspension, and 

ineligibility or organizational conflict of 

interest. 

Proposed Regulations: The proposed 

changes in 3409.4 (Debarment, 

suspension, and ineligibility) and 

3409.5 (Organizational and consultant 

conflicts of interest) would provide 

additional details regarding these issues. 

Proposed 3409.401 (Applicability) 

would indicate that this subsection does 

not apply to non-procurement 

debarment and suspension. 

Proposed 3409.403 (Definitions) 

would designate the Senior 

Procurement Executive as the 

Department’s debarring official and 

suspending official. 

The proposed changes to 3409.406–3 

(Procedures) would provide additional 

detail regarding the steps involved in 

the debarment process. 

Proposed 3409.407–3 (Procedures) 

would provide similar, additional detail 

on the steps involved in the suspension 

process. 

We are proposing to revise 3409.506 

(Procedures) to give the HCA flexibility 

to terminate or not terminate contracts 

in cases of conflict of interest, and 

designate the HCA, rather than the 

Senior Procurement Executive, as the 

authorized reviewer and decision maker 

in such matters. 

We are proposing to add 3409.507 

(Solicitation provision and contract 

clause), to add prescriptions requiring 

contracting officers to include the 

provision in 3452.209–70 (Conflict of 

interest certification) and the clause at 

3452.209–71 (Conflict of interest) in all 

solicitations and contracts, respectively, 

for services above the simplified 

acquisition threshold. We are proposing 

to add 3409.570 (Certification at or 

below the simplified acquisition 

threshold), which describes the conflict 

of interest certification that contractors 

make when entering into a contract with 

the Department at or below the 

simplified acquisition threshold. 

Reasons: The proposed changes to the 

regulations would more clearly and 

completely describe agency procedures 

that implement the sections of the FAR 

pertaining to suspension, debarment, 

and conflicts of interest. Publication of 

agency procedures on these matters 

would be beneficial to the contractor 

community. 

Part 3412 Acquisition of Commercial 

Items 

FAR: FAR Part 12 (Acquisition of 

commercial items) describes the 

methods of purchasing commercial 

products and services. 

Current Regulations: The current 

EDAR does not address this part of the 

FAR. 

Proposed Regulations: Proposed 

3412.203 (Procedures for solicitation, 

evaluation, and award) would specify 

that the PBO has the authority to use 

simplified acquisition procedures for 

commercial items without regard to 

dollar or timeframe limitations. 

Proposed 3412.302 (Tailoring of 

provisions and clauses for the 

acquisition of commercial items) would 

identify the HCA as the person who is 

authorized to approve waivers allowing 

COs to tailor provisions and clauses for 

the acquisition of commercial items. 

Reasons: These proposed changes 

implement the PBO’s contracting 

authority, as well as identify the 

individual authorized to provide the 

waivers required in FAR 12.302 when a 

Contracting Officer needs to tailor 

provisions and clauses for the 

acquisition of commercial items. 

Subchapter C—Contracting Methods 

and Contract Types 

Part 3413 Simplified Acquisition 

Procedures 

FAR: FAR Part 13 (Simplified 

acquisition procedures) allows and 

describes streamlined ways of 

purchasing goods and services below 

the simplified acquisition threshold. 

Current Regulations: The current 

EDAR includes 3413.107 (Solicitation 

and evaluation of quotations), which 

requires use of certain FAR Part 15 

procedures when conducting a 

simplified acquisition. 

Proposed Regulations: We propose to 

remove 3413.107 (Solicitation and 

evaluation of quotations) in order to 

eliminate the requirement to use certain 

part 15 procedures when conducting a 

simplified acquisition. 

Proposed 3413.003 (Policy) would 

explain the PBO’s authority to use 

simplified acquisition procedures for 

commercial items without regard to the 

dollar or timeframe limitations in FAR 

13.5 and explains the PBO’s authority to 

use simplified acquisition procedures 

for competitively awarded 

noncommercial items contracts up to 

$1,000,000 when the procurement is a 

small business set-aside. 

Proposed 3413.303 would allow use 

of blanket purchase agreements for 

commercial items up to the threshold of 

the test program for certain commercial 

items in FAR 13.500(a). 

Reasons: The proposed updates to 

this part would improve the 

Department’s implementation of FAR 

Part 13 by removing overly restrictive 

regulations and by implementing the 

PBO’s authority in section 1018a(e). The 

current 3413.107 (Solicitation and 

evaluation of quotations) requires the 

contracting officer to use FAR Part 15 

(Contracting by negotiation) procedures 

in simplified acquisitions. The 

simplified acquisition procedures in the 

FAR are designed to maximize the 

Department’s flexibility. The proposed 

addition in 3413.303 would allow the 

Department to use a procurement 

flexibility authorized in the FAR by 

allowing use of blanket purchase 

agreements for commercial items over 

the simplified acquisition threshold, 

under the test program for certain 

commercial items in FAR 13.5. 

Part 3414 Sealed Bidding 

FAR: FAR Part 14 (Sealed bidding) 

describes the rules and requirements for 

using sealed bidding as a method of 

acquisition. 

Current Regulations: The current 

EDAR identifies the HCA as the official 

authorized to make determinations 

under FAR 14.407–3. 

Proposed Regulations: We propose to 

renumber 3414.407 (Mistakes in bids) to 

match the FAR numbering system. 

Reasons: This proposed change would 

update the EDAR to follow the FAR 

numbering scheme. 

Part 3415 Contracting by Negotiation 

FAR: FAR Part 15 (Contracting by 

negotiation) sets forth procedures for 

acquiring goods and services through 

negotiated procurement. 

Current Regulations: The current 

EDAR contains outdated requirements 

on order of precedence and setting 

profit prenegotiation objectives, and 

does not address the PBO’s authorities, 

such as two-phase source selection. 

Proposed Regulations: The proposed 

change to 3415.2 (Solicitation and 

receipt of proposals and information) 

would renumber the current 3415.407 

(Solicitation provisions) to 3415.209 

(Solicitation provisions) to match the 

FAR numbering of the relevant 

information. The proposed change to 

3415.209(a) would reflect the new 

numbering of the clause referenced in 

the paragraph (52.215–1(e)). 

Removal of 3415.4 (Solicitation and 

receipt of proposals and quotations) 

would eliminate the prescriptive 

language for an order of precedence 

clause (3452.215–33). 

Proposed 3415.302–70 (Two-phase 

source selection) would implement the 

PBO’s authority to use a two-phase 

process to solicit offers and select a 

source for award. 

We are proposing to revise 3415.606 

(Agency procedures) to add an HCAdesignee as a possible point of contact 


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for coordination of unsolicited 

proposals. 

Removal of 3415.9 (Profit) would 

eliminate the requirement for 

contracting officers to use a certain 

framework when developing 

prenegotiation profit objectives. 

Reasons: The proposed changes to 

this section would implement section 

1018a(d), eliminate unnecessary 

requirements on the development of 

prenegotiation profit objectives, and 

eliminate unnecessary variation from 

the FAR-provided clause on order of 

precedence. 

Part 3416 Types of Contracts 

FAR: FAR Part 16 (Types of contracts) 

describes the various contract types and 

considerations in determining the type 

of contract to use for a particular 

acquisition. 

Current Regulations: The current 

EDAR includes requirements relating to 

negotiated overhead rates in agreements, 

under FAR 16.7, as well as requirements 

we propose to leave unchanged, dealing 

with cost-sharing contracts, contract 

clauses on cost, and letter contracts. 

Proposed Regulations: Proposed 

3416.402–2 (Performance incentives) 

would authorize the Department to use 

a type of contracting called ‘‘award-term 

contracting’’ for performance-based 

contracts or task orders. This section 

refers the reader to EDAR 3416.470 for 

the definition of award-term contracting 

and implementation guidelines. 

Proposed 3416.470 (Award-term 

contracting) would establish policy and 

procedures for using this type of 

incentive contracting. 

We are proposing to remove 3416.7 

(Agreements), which in 3416.701 had 

provided the prescriptive language for 

the clause at 3452.216–71 (Negotiated 

Overhead Rates—Fixed) and in 

3416.702 had addressed negotiated 

overhead rates for Basic Agreements. 

Reasons: The proposed addition of 

the section on award-term contracting 

would provide the CO with guidance on 

how to use existing procurement 

flexibilities allowed under the FAR. The 

proposed removal of 3416.7 would 

eliminate unnecessary regulation. The 

inclusion of overhead rates is permitted 

by the FAR at the contracting officer’s 

discretion, so the prescription at 3416.7 

is unnecessary. 

Part 3417 Special Contracting Methods 

FAR: FAR Part 17 (Special contracting 

methods) describes requirements for 

options and interagency acquisitions 

under the Economy Act. 

Current Regulations: The current 

EDAR includes one paragraph in this 

part, under 3417.207 (Exercise of 

options), which specifies that ‘‘after 

funds become available’’ means ‘‘after 

funds become available to the 

contracting officer for obligation.’’ 

Proposed Regulations: We propose to 

add 3417.204 (Contracts), 3417.5 

(Interagency acquisition under the 

Economy Act), and 3417.70 (Modular 

contracting). We also propose to modify 

3417.207 (Exercise of options). 

Proposed 3417.204 (Contracts) would 

provide that the Department may enter 

into contracts that exceed the five-year 

limitation specified in FAR 17.204(e), 

subject to approval by the HCA for 

individual contracts or the SPE for 

classes of contracts. 

Proposed 3417.207 (Exercise of 

options) would add paragraph (f)(2) to 

explain that the government can accept 

price reductions offered by contractors 

at any time during performance of a 

contract, and that these reductions are 

not renegotiations if they were not 

requested by the government. 

We propose to add 3417.5 

(Interagency acquisitions under the 

Economy Act), which would address 

interagency acquisitions procured by 

the PBO under section 1018a(j). 

Proposed 3417.70 (Modular 

contracting) would detail the PBO’s 

authority to perform successive 

procurements for systems. 

Reasons: FAR 17.204(e) allows 

agencies to approve contract periods for 

longer than five years. Implementing 

this regulation in the EDAR would 

allow the Department more flexibility in 

contracting. The other proposed changes 

to this part would implement the PBO’s 

modular contracting authority. 

Subchapter D—Socioeconomic 

Programs 

3419 Small Business Programs 

FAR: FAR Part 19 (Small Business 

Programs) describes requirements for 

and availability of contracting 

preference programs for small 

businesses. 

Current Regulations: The current 

regulations are outdated and address 

parts of the FAR that no longer exist. 

Proposed Regulations: Proposed 

3419.201–70 (Office of Small and 

Disadvantaged Business Utilization 

(OSDBU)) would describe the role of the 

OSDBU in implementing FAR 19.201. 

Proposed 3419.502–4 (Methods of 

conducting set-asides) would allow the 

PBO to procure noncommercial services 

using simplified acquisition procedures 

if the procurement does not exceed 

$1,000,000, is conducted as a small 

business set-aside, the price charged for 

supplies associated with the services 

procured is expected to be less than 20 

percent of the total contract price, and 

the contract is not awarded on a solesource basis and is not for construction. 

We are proposing to remove 3419.7 

(Subcontracting with Small Business 

and Small Disadvantaged Business 

Concerns) and 3419.8 (Contracting with 

the Small Business Administration (The 

8(a) Program). 

Reasons: These proposed changes 

would update the Department’s 

implementation of the FAR and include 

the PBO’s contracting authorities under 

the PBO’s authorizing statute, section 

1018a(e) (Use of simplified procedures 

for commercial items). 

The proposed removal of 3419.7 

would eliminate requirements that are 

redundant with current FAR 

requirements. EDAR 3419.705–2 

(Determining the need for a 

subcontracting plan) includes 

instructions to the contracting officer on 

determining the dollar threshold for 

requirement of a subcontracting plan. 

The FAR adequately addresses this 

issue in 19.705–2 (Determining the need 

for a subcontracting plan). EDAR 

3419.708 (Solicitation provisions and 

contract clauses) currently requires the 

contracting officer to include in 

solicitations that include clause 52.219– 

9 a notification that advises prospective 

offerors that subcontracting plans may 

be requested from all concerns 

determined to be in the competitive 

range. However, the FAR notifies 

offerors of the requirements for 

submitting subcontracting plans in the 

clauses requiring submission of the 

plans (52.219–9, Small business 

subcontracting plan, and its alternates I 

and II). 

The proposed removal of 3419.8 

would eliminate this subpart that 

implemented FAR 19.8, which has 

changed so significantly as to make 

3419.8 irrelevant. Section 3419.801 

currently refers to a section of the FAR 

(19.801) that is no longer in use. Section 

3419.870 currently details a source 

selection procedure no longer relevant 

due to the detailed source selection 

procedures in the updated FAR 19.8. 

3422 Application of Labor Laws to 

Government Acquisitions 

FAR: FAR Part 22 (Application of 

labor laws to government acquisitions) 

describes various laws, policies, and 

prohibitions governing Federal 

acquisition. 

Current Regulations: The current 

EDAR does not address this part of the 

FAR. 

Proposed Regulations: We propose to 

add 3422.10 (Service Contract Act of 

1965, as amended) to explain that the 5- 

year limitation in the Service Contract 


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Act of 1965, as amended (Service 

Contract Act), applies to each period of 

the contract individually, not to the 

cumulative period of base and option 

years, and that accordingly no 

Department contract will have a base or 

option period longer than five years. 

Reasons: This proposed language is 

based on the Department of Labor’s 

definition of ‘‘contract’’ as it applies to 

the Service Contract Act. This definition 

is set forth in the Department of Labor’s 

regulations at 29 CFR 4.143(b) and 29 

CFR 4.145(a), which state that an 

extension of a term of a contract—by 

option or other means—is a wholly new 

contract with respect to the Service 

Contract Act. 

3424 Protection of Privacy and 

Freedom of Information 

FAR: FAR Part 24 (Protection of 

privacy and freedom of information) 

provides guidance on protection of 

individual privacy and the Freedom of 

Information Act. 

Current Regulations: The current 

EDAR includes implementing language 

for protection of individual privacy, and 

directs the public to the Department’s 

regulations implementing the Freedom 

of Information Act. 

Proposed Regulations: We propose to 

add 3424.170 (Protection of human 

subjects) which would prescribe a 

solicitation provision and contract 

clause intended to protect the personal 

information of anyone involved in 

research activities of the Department. 

We also propose to add 3424.203 

(Policy) to state the Department’s policy 

on Freedom of Information Act requests 

and to provide prescriptive language for 

clause 3452.224–70, (Release of 

information under the Freedom of 

Information Act). 

Reasons: The proposed changes are 

intended to protect personally 

identifiable information and to better 

inform the public of the Department’s 

policy with respect to the Freedom of 

Information Act. 

3425 Foreign Acquisition 

FAR: FAR Part 25 (Foreign 

acquisition) implements the Buy 

American Act. 

Current Regulations: The current 

EDAR designates the HCA as the 

approving official for determinations 

relating to the Buy American Act, and 

also implements a section of the FAR 

that no longer exists. 

Proposed Regulations: We propose to 

remove 3425.2 (Balance of payments 

program) to eliminate outdated 

language. 

Reasons: This proposed change is 

based on a FAR change that eliminated 

the need for this section of the EDAR. 

Subchapter E—General Contracting 

Requirements 

3427 Patents, Data, and Copyrights 

FAR: FAR Part 27 (Patents, data, and 

copyrights) regulates patents, 

copyrights, rights in data, and foreign 

license and technical agreements under 

Federal contracts. 

Current Regulations: The current 

EDAR includes in this part prescriptions 

for clauses on publication and publicity, 

advertising of awards, and paperwork 

reduction. 

Proposed Regulations: We propose to 

add 3427.409 (Solicitation provisions 

and contract clauses) to consolidate the 

prescriptions for clauses 3452.227–70 

(Publication and publicity) and 

3452.227–71 (Advertising of awards). 

Proposed 3427.409(c) would provide 

the prescriptive language for clause 

3452.227–72 (Use and non-disclosure 

agreement) and proposed 3427.409(d) 

would provide the prescriptive language 

for clause 3452.227–73 (Limitations on 

the use or disclosure of Governmentfurnished information marked with 

restrictive legends). 

As previously discussed, we are 

proposing to move the prescription for 

use of the clause at 3452.208–72 

(Paperwork reduction) to 3408.871. 

Reasons: The consolidation of the 

prescriptive language for clauses 

3452.227–70 (Publication and publicity) 

and 3452.227–71 (Advertising of 

awards) is intended to bring clarity to 

this part and to make the EDAR 

structure consistent with the FAR 

structure. The proposed addition of the 

Use and non-disclosure agreement and 

the Limitations on the use or disclosure 

of Government-furnished information 

marked with restrictive legends clauses, 

3452.227–72 and 3452.227–73, 

respectively, is intended to protect data 

from unauthorized disclosure. Moving 

the Paperwork reduction clause 

prescription from 3427.471 to 3408.871 

(Paperwork reduction) would make the 

EDAR structure consistent with the FAR 

structure. 

3432 Contract Financing 

FAR: FAR Part 32 (Contract financing) 

regulates the types of financing the 

Government may make available to 

contractors, including advance 

payments. 

Current Regulations: The current 

EDAR includes a prescription for a 

‘‘Method of payment’’ clause in 3432.170 

(Method of payment), includes 

designation of the HCA as the official 

authorized to authorize types of 

financing in 3432.4 (Advance 

Payments), and includes instructions to 

contractors in 3432.704 (Limitation of 

cost or funds). The current EDAR also 

includes a prescription for clause 

3452.232–70 (Prohibition against the 

use of ED funds to influence legislation 

or appropriations) in 3432.770 

(Prohibition against the use of ED funds 

to influence legislation or 

appropriations), and includes a 

prescription for an incremental funding 

provision in 3432.771 (Provision for 

incremental funding). 

Proposed Regulations: We are 

proposing to remove 3432.170 (Method 

of payment) to eliminate outdated 

regulations. We are proposing to add 

3432.705–2 (Clauses for limitation of 

cost or funds), which prescribes the use 

of clause 3452.232–70 (Limitation of 

cost or funds) and the provision in 

3452.232–71 (Incremental funding). We 

are proposing to remove the current 

3432.704 (Limitation of cost or funds), 

3432.770 (Prohibition against the use of 

ED funds to influence legislation or 

appropriations), and 3432.771 

(Provision for incremental funding). 

Reasons: The proposed removal of the 

Method of payment clause is intended 

to eliminate outdated information about 

being paid by check or wire transfer. 

The Department no longer pays 

contractors by check or wire transfer. 

The proposed addition of 3432.705–2 

and removal of current 3432.704 and 

3432.771 reorganizes and updates the 

information for incrementally funded 

contracts. The current EDAR section on 

Limitation of cost or funds (3432.704) 

also contains requirements for 

contractors to follow during 

performance of incrementally funded 

contracts. Requirements of this type 

should be communicated to contractors 

in contract clauses, not in the body of 

the regulation. Therefore, we are 

proposing to include these requirements 

in clause 3452.232–70 (Limitation of 

cost or funds) instead of in the current 

section of the EDAR (3432.704). 

The proposed removal of 3432.770 

would eliminate a redundant 

prohibition on using ED funds in 

lobbying. The restrictions in FAR Part 

31 already prohibit contractors from 

spending Government funds on these 

activities. 

3433 Protests, Disputes, and Appeals 

FAR: FAR Part 33 (Protests, disputes, 

and appeals) sets forth the rules for 

handling these types of actions. 

Current Regulations: The current 

EDAR includes information on protests, 

disputes, and appeals, and references 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
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outdated information on a board of 

contract appeals that no longer exists. 

Proposed Regulations: We propose to 

remove unnecessary regulations 

currently in 3433.1 (Protests) and 3433.2 

(Disputes and appeals). We propose to 

add a paragraph at 3433.103 to 

designate the HCA as the agency official 

identified in FAR 33.103(f)(3). 

Reasons: The proposed changes 

would eliminate outdated and 

unnecessary information. The 

information contained in the current 

3433.103 (Protests to the agency) is 

redundant with the information 

contained in FAR 33.103 (Protests to the 

agency). The current 3433.2 (Disputes 

and appeals) references a Board of 

Contract Appeals that no longer exists. 

Subchapter F—Special Categories of 

Contracting 

3437 Service Contracting 

FAR: FAR Part 37 (Service 

contracting) regulates various types of 

service contracts and performance-based 

acquisition. 

Current Regulations: The current 

EDAR contains 3437.270 (Consulting 

services reporting clause), which was 

eliminated by a class deviation in 1988. 

The EDAR also contains 3437.271 

(Services of consultants clause), which 

prescribes the use of clause 3452.237–71 

(Services of consultants) in all costreimbursement contracts and 

solicitations. This clause requires the 

contractor to obtain the contracting 

officer’s written approval to use certain 

consultants under their contract. 

Proposed Regulations: We propose 

adding 3437.170, which would require 

the inclusion of language set forth in 

clause 3452.237–71 (Observance of 

administrative closures) in all 

solicitations and contracts for services. 

We propose removing 3437.270 

(Consulting services reporting clause). 

We propose changing the number of 

3437.271 (Services of consultants 

clause) to 3437.270, because that 

number would be available if the 

current 3437.270 is removed. We 

propose changing the prescription in 

3437.270 (Services of consultants 

clause) to exclude FSA from the 

requirements of the clause. 

Finally, we propose adding 3437.670 

(Contract type) which would state that 

award-term contracting can be used in 

performance-based contracts and orders, 

if approved by the HCA. 

Reasons: The proposed addition of 

the clause at 3452.237–71 (Observance 

of administrative closures) is intended 

to clarify the Department’s policy on 

whether contractor work is required 

when the Government is closed. 

The proposed change to the 

prescription for use of the clause at 

3452.237–70 (Services of consultants) is 

intended to implement section 1018a(c). 

The proposed new subsection on 

contract type is intended to authorize 

the use of award-term contracting. This 

change is necessary because although 

the current EDAR does not address this 

subject, award-term contracting is 

allowed under the FAR and used across 

the government. This change to the 

EDAR would clarify that the Department 

allows and intends for COs to use this 

procurement flexibility. 

439 Acquisition of Information 

Technology 

FAR: FAR Part 39 (Acquisition of 

information technology) regulates the 

acquisition of information technology. 

Current Regulations: The current 

EDAR does not address this FAR part. 

Proposed Regulations: We propose 

adding 3439.70 (Department 

requirements for the acquisition of 

information technology). In this subpart, 

we propose adding 3439.701 (Internet 

protocol version 6) to require the 

contracting officer to insert the clause at 

3452.239–70 (Internet protocol version 6 

(IPv6)), in all solicitations and resulting 

contracts for hardware and software. 

This clause requires contractors to 

comply with certain standard protocols 

when developing software or systems. 

We are proposing to add 3439.702 

(Department security requirements), to 

require the contracting officer to include 

the Notice to offerors of Department 

security requirements (3452.239–71) 

provision and the clause at 3452.239–72 

(Department security requirements) 

when contractor employees will have 

access to Department-controlled 

facilities or space, or when the work 

(wherever located) involves the design, 

operation, repair, or maintenance of 

information systems and access to 

sensitive but unclassified information. 

Finally, we are proposing the addition 

of 3439.703 (Federal desktop core 

configuration (FDCC) compatibility), 

which would require the contracting 

officer to include the clause at 

3452.239–73 (Federal desktop core 

configuration (FDCC) compatibility) in 

all solicitations and contracts where 

software will be developed, maintained, 

or operated on any system using the 

FDCC configuration. This clause 

requires software used on FDCC 

computers to be FDCC-compatible. 

Reasons: These proposed changes are 

intended to implement multiple 

information technology initiatives and 

standards developed in the past several 

years by the information technology 

industry and adopted by the 

Government, including the Office of 

Management and Budget. 

Subchapter F—Contract Management 

3442 Contract Administration and 

Audit Services 

FAR: FAR Part 42 (Contract 

administration and audit services) 

requires use of a contractor performance 

information system, contract 

monitoring, and governs other contract 

administration functions. 

Current Regulations: The current 

EDAR contains an obsolete delegation of 

authority in 3442.705 (Final indirect 

cost rates), a section at 3442.7001 

prescribing the use of clause 3452.242– 

72 (Withholding of contract payments), 

and sections in 3443.7002 on the 

Litigation and claims clause, 3442.7003 

regarding the Delays clause, and 

3442.71 on the Department’s policy on 

accessibility to persons with disabilities. 

Proposed Regulations: We are 

proposing to remove 3442.7 (Indirect 

cost rates) which had delegated 

authority to establish final indirect cost 

rates to the Chief of the Cost 

Determination Branch in Grants and 

Contracts Services. 

We are also proposing to remove 

3442.7001 (Withholding of contract 

payments clause) and to renumber 

3442.7002 (Litigation and claims clause) 

to 3442.7001, and 3442.7003 (Delays 

clause) to 3442.7002. We propose no 

change to 3442.71, Accessibility of 

Meetings, Conferences, and Seminars to 

Persons with Disabilities. 

Reasons: These proposed changes are 

intended to eliminate outdated 

information. The proposed removal of 

3442.7 (Indirect cost rates) would 

remove the outdated delegation to 

establish final indirect cost rates. The 

FAR allows the contracting officer to 

make this determination (FAR 42.705). 

We are proposing to remove 

3442.7001 (Withholding of contract 

payments clause) because the language 

in this section allows the Department to 

withhold contract payments if any 

report required to be submitted by the 

contractor is overdue, or if the 

contractor fails to perform or deliver 

work or services as required by the 

contract. The Department’s ability to 

withhold payment for non-performance 

is established in existing FAR clauses, 

based on the specific contract type and 

arrangement, and does not need to be 

repeated in the EDAR. 

We are proposing to renumber 

3442.7002 (Litigation and claims clause) 

to 3442.7001, and 3442.7003 (Delays 

clause) to 3442.7002, to use the number 

that would be available if the current 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
51890 Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Proposed Rules 

3442.7001 (Withholding of contract 

payments clause) is removed. 

3443 Contract Modifications 

FAR: FAR Part 43 (Contract 

modifications) provides guidance and 

requirements for changes to contracts. 

Current Regulations: The current 

EDAR in 3443.106 (Contract clause) 

requires the inclusion of EDAR clause 

3452.243–70 (Key personnel) in all costreimbursement contracts. 

Proposed Regulations: We propose to 

renumber 3443.106 as 3443.107, to 

better align the EDAR numbering with 

the FAR. In addition, we propose a 

change to the language in newly 

renumbered 3443.107 to provide that 

the language in 3452.243–70 (Key 

personnel) would need to be included 

only in appropriate contracts. 

Reasons: The current requirement to 

include the Key personnel clause in all 

cost-reimbursement contracts does not 

allow for contracting officer discretion 

in the use of this clause. The clause 

requires contractors to obtain 

contracting officer approval before 

changing the personnel assigned to the 

contract and designated in this clause as 

‘‘key personnel.’’ In some contracts, this 

designation and approval process is 

important to the success of the contract 

and to the Department’s ability to 

adequately monitor the contract. In 

some contracts, this requirement is 

unnecessarily cumbersome, as the 

designation and approval process is not 

important to the success of the contract 

or the Department’s ability to 

adequately monitor the contract. 

The new prescription would require 

the contracting officer to insert a clause 

substantially the same as the Key 

personnel clause ‘‘in all solicitations and 

resultant contracts in which it will be 

essential for the contracting officer to be 

notified that a change of designated 

personnel is to take place by the 

contractor.’’ This change in prescription 

would allow greater discretion in the 

use of this clause. 

Subchapter H—Clauses and Forms 

3452 Solicitation Provisions and 

Contract Clauses 

FAR: FAR Part 52 (Solicitation 

provisions and contract clauses) is the 

part of the FAR containing all FAR 

provisions and clauses required or 

recommended for inclusion in 

solicitations and contracts, as prescribed 

in the preceding parts of the FAR. 

Current Regulations: The current 

EDAR includes text for twenty-two 

provisions and clauses, all of which are 

prescribed in the preceding parts of the 

EDAR. 

Proposed Regulations: We propose to 

add the Contracting Officer’s 

Representative clause at 3452.201–70, to 

define the role and responsibility of that 

position. 

The proposed Definitions— 

Department of Education clause at 

3452.202–1 would be revised to remove 

the specific definitions in the current 

clause (‘‘Secretary’’, ‘‘Head of the 

Agency’’, ‘‘contracting officer’’, 

‘‘Contracting Officer’s Technical 

Representative’’, ‘‘Department or ED’’, 

and ‘‘subcontract’’, and, instead, 

reference the FAR definitions at 2.101 

and the EDAR definitions at 3402.101. 

We are proposing renumbering the 

Paperwork Reduction Act clause from 

3452.227–71 to 3452.208–72. 

We are proposing a new Conflict of 

interest certification provision in 

3452.209–70, which would require 

offerors to certify that they have 

identified actual or potential conflicts of 

interest. 

We are proposing a new Conflict of 

interest clause at 3452.209–71, which 

would provide for potential criminal 

penalties for false certification regarding 

conflict of interest. 

We are proposing to remove the Order 

of precedence clause at 3452.215–33, 

and instead use FAR clause 52.215–8 

(Order of precedence—uniform contract 

format). 

We are proposing to remove the 

Negotiated overhead rates—Fixed clause 

at 3452.216–71, which specifies 

procedures and policy for applying 

indirect rates to the contract. Applying 

indirect rates is adequately addressed in 

the FAR. We are proposing to add the 

Award-Term clause at 3452.216–71, 

which would provide information on 

the duration of an award-term contract, 

require an award-term plan, and provide 

guidance on making award 

determinations and on remedies 

available to contractors in award-term 

situations. 

We are adding the Release of 

information under the Freedom of 

Information Act clause 3452.224–70, 

which would advise contractors of 

potential releases of information 

pursuant to the Freedom of Information 

Act. 

The proposed Notice about research 

activities involving human subjects 

provision in 3452.224–71 and the 

proposed Research activities involving 

human subjects clause at 3452.224–72, 

would address the requirements found 

in 34 CFR part 97. 

We are proposing to add the Use and 

non-disclosure agreement clause at 

3452.227–72, which would protect 

contractor data from unauthorized 

disclosure by requiring the intended 

recipient to sign a use and nondisclosure agreement before receiving 

any proprietary data, technical data, or 

computer software delivered to the 

Government with restrictions on use, 

modification, reproduction, release, 

performance, display, or disclosure. We 

are proposing to remove the outdated 

Prohibition against the use of ED funds 

to influence legislation or 

appropriations clause at 3452.232–70. 

The proposed Limitation of cost or 

funds clause at 3452.232–70 would 

provide the format and content of 

information to be provided by the 

contractor in cases of cost overruns. 

We are proposing to revise the 

Incremental funding clause at 3452.232– 

71 by removing paragraph (b) of this 

clause, which had indicated that ‘‘the 

Limitation of Cost clause in FAR 

52.232–20 shall supersede the 

Limitation of Funds clause in the event 

the contract becomes fully funded.’’ The 

Limitation of cost clause is not 

prescribed for inclusion in an 

incrementally funded contract, so this 

paragraph is unnecessary. We are 

proposing to remove the Method of 

payment clause at 3452.232–72, which 

indicates that payment under the 

contract will be made either by check or 

by wire transfer, because the 

Department no longer makes payments 

in this manner. 

The proposed amendment to 

paragraph (b) of the Services of 

consultants clause at 3452.237–70 

would raise the default daily rate for 

consultants where contracting officer 

approval is required to an amount 

greater than $800. 

We are proposing to add the 

Observance of administrative closures 

clause at 3452.237–71 to clarify the 

Department’s policy on whether 

contractor work is required when the 

Government is closed. We are proposing 

to add the Internet protocol version 6 

(IPv6) clause at 3452.239–70 to 

incorporate the Department’s 

requirement for compliance with this 

protocol. 

We are proposing to add the Notice to 

offerors of Department security 

requirements provision in 3452.239–71 

and the Department security 

requirements clause at 3452.239–72 to 

incorporate the Department’s updated 

security requirements. 

We are proposing to add the Federal 

desktop core configuration (FDCC) 

compatibility clause at 3452.239–73 

clause to incorporate the Department’s 

requirement for compatibility with the 

FDCC. 

We are proposing to change the 

prescription reference for the Litigation 

and claims clause at 3452.242–70. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Proposed Rules 51891 

We are proposing to reword and 

change the prescription reference for the 

Notice to the government of delays 

clause at 3452.242–71. 

We are proposing to leave unchanged 

the Accessibility of meetings, 

conferences, and seminars to persons 

with disabilities clause at 3452.242–73. 

We are proposing to amend the Key 

personnel clause at 3452.243–70, to 

provide for a listing of the labor category 

and name of key personnel to be listed 

in the contract. 

We are proposing to amend the 

Foreign travel clause at 3452.247–70 to 

add travel to Puerto Rico, the U.S. 

Virgin Islands, and other U.S. territories 

as instances of foreign travel. 

Reasons: The proposed changes to 

this part of the EDAR are consistent 

with the changes to the prescriptive 

language in the preceding parts, and 

would update the provisions and 

clauses to more accurately reflect 

current regulations and policy. 

Executive Order 12866 

Under Executive Order 12866, the 

Secretary must determine whether a 

regulatory action is ‘‘significant’’ and 

therefore subject to the requirements of 

the Executive order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may (1) Have an 

annual effect on the economy of $100 

million or more, or adversely affect a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities in a 

material way (also referred to as an 

‘‘economically significant’’ rule); (2) 

create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impacts of 

entitlement grants, user fees, or local 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

order. The Secretary has determined 

that this regulatory action is not 

significant under section 3(f) of the 

Executive order. 

Potential Costs and Benefits 

This notice has been reviewed in 

accordance with Executive Order 12866. 

Under the terms of the order, we have 

assessed the potential costs and benefits 

of this proposed regulatory action. 

The potential costs associated with 

this proposed regulatory action are 

those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering the EDAR effectively and 

efficiently. 

In assessing the potential costs and 

benefits—both quantitative and 

qualitative—of this proposed regulatory 

action, we have determined that the 

benefits of the proposed regulatory 

action justify the costs. 

We have determined, also, that this 

proposed regulatory action does not 

unduly interfere with State, local, and 

tribal governments in the exercise of 

their governmental functions. 

Clarity of the Regulations 

Executive Order 12866 and the 

Presidential memorandum on ‘‘Plain 

Language in Government Writing’’ 

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 

this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section of this preamble. 

Regulatory Flexibility Act Certification 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601, et seq., as amended by the 

Small Business Regulatory Flexibility 

Act of 1996), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions), 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. The Regulatory Flexibility Act 

requires Federal agencies to provide a 

statement of the factual basis for 

certifying that a rule will not have a 

significant impact on a substantial 

number of small entities. Pursuant to 

the Regulatory Flexibility Act, the 

Secretary certifies that this proposed 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

The rule would update the EDAR; it 

would not directly regulate any small 

entities. As a result, an initial regulatory 

flexibility analysis is not required and 

none has been prepared. 

Paperwork Reduction Act of 1995 

These proposed regulations do not 

contain any information collection 

requirements. 

Intergovernmental Review 

The EDAR is not subject to Executive 

Order 12372 and the regulations in 34 

CFR part 79. 

Assessment of Educational Impact 

In accordance with section 441 of the 

General Education Provisions Act, 

20 U.S.C. 1221e–4, the Secretary 

particularly requests comments on 

whether these proposed regulations 

would require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. 

Electronic Access to This Document 

You can view this document, as well 

as all other documents of this 

Department published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF) on the Internet 

at the following site: http://www.ed.gov/ 

news/fedregister. To use PDF you must 

have Adobe Acrobat Reader, which is 

available free at this site. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

(Catalog of Federal Domestic Assistance 

Number does not apply.) 

List of Subjects in 48 CFR Chapter 34 

Government procurement. 

Dated: August 6, 2010. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary proposes to 

amend title 48 of the Code of Federal 

Regulations by revising chapter 34 to 

read as follows: 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
51892 Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Proposed Rules 

TITLE 48—FEDERAL ACQUISITION 

REGULATIONS SYSTEM 

CHAPTER 34—DEPARTMENT OF 

EDUCATION ACQUISITION REGULATION 

PARTS 3400 to 3499 

SUBCHAPTER A—GENERAL 

Sec. 

3401 ED Acquisition regulation system 

3402 Definitions of words and terms 

3403 Improper business practices and 

personal conflicts of interest 

SUBCHAPTER B—COMPETITION AND 

ACQUISITION PLANNING 

3405 Publicizing contract actions 

3406 Competition requirements 

3408 Required sources of supplies and 

services 

3409 Contractor qualifications 

3412 Acquisition of commercial items 

SUBCHAPTER C—CONTRACTING 

METHODS AND CONTRACT TYPES 

3413 Simplified acquisition procedures 

3414 Sealed bidding 

3415 Contracting by negotiation 

3416 Types of contracts 

3417 Special contracting methods 

SUBCHAPTER D—SOCIOECONOMIC 

PROGRAMS 

3419 Small business programs 

3422 Application of labor laws to 

government acquisitions 

3424 Protection of privacy and freedom of 

information 

3425 Foreign acquisition 

SUBCHAPTER E—GENERAL 

CONTRACTING REQUIREMENTS 

3427 Patents, data, and copyrights 

3428 Bonds and insurance 

3432 Contract financing 

3433 Protests, disputes, and appeals 

SUBCHAPTER F—SPECIAL CATEGORIES 

OF CONTRACTING 

3437 Service contracting 

3439 Acquisition of information technology 

SUBCHAPTER G—CONTRACT 

MANAGEMENT 

3442 Contract administration and audit 

services 

3443 Contract modifications 

3445 Government property 

3447 Transportation 

SUBCHAPTER H—CLAUSES AND FORMS 

3452 Solicitation provisions and contract 

clauses 

SUBCHAPTER A—GENERAL 

PART 3401—ED ACQUISITION 

REGULATION SYSTEM 

3401.000 Scope of part. 

Subpart 3401.1—Purpose, Authority, 

Issuance 

3401.104 Applicability. 

3401.105 Issuance. 

3401.105–2 Arrangement of regulations. 

3401.105–3 Copies. 

Subpart 3401.3—Agency Acquisition 

Regulations 

3401.301 Policy. 

3401.303 Publication and codification. 

3401.304 Agency control and compliance 

procedures. 

Subpart 3401.4—Deviations 

3401.401 Definition. 

3401.403 Individual deviations. 

3401.404 Class deviations. 

Subpart 3401.5—Agency and Public 

Participation 

3401.501 Solicitation of agency and public 

views. 

3401.501–2 Opportunity for public 

comments. 

Subpart 3401.6—Career Development, 

Contracting Authority, and Responsibilities 

3401.601 General. 

3401.602–3 Ratification of unauthorized 

commitments. 

3401.670 Nomination and appointment of 

contracting officer’s representatives 

(CORs). 

3401.670–1 General. 

3401.670–2 Appointment. 

3401.670–3 Contract clause. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

3401.000 Scope of part. 

The Federal Acquisition Regulation 

System brings together, in title 48 of the 

Code of Federal Regulations, the 

acquisition regulations applicable to all 

executive agencies of the Federal 

government. This part establishes a 

system of Department of Education 

(Department) acquisition regulations, 

referred to as the EDAR, for the 

codification and publication of policies 

and procedures of the Department that 

implement and supplement the Federal 

Acquisition Regulation (FAR). 

Subpart 3401.1—Purpose, Authority, 

Issuance 

3401.104 Applicability. 

(a) The FAR and the EDAR apply to 

all Department contracts, as defined in 

FAR Part 2, except where expressly 

excluded. 

(b) 20 U.S.C. 1018a provides the PBO 

with procurement authority and 

flexibility associated with sections (a)– 

(l) of the statute. 

(c) For non-appropriated fund 

contracts, the FAR and EDAR will be 

followed to the maximum extent 

practicable, excluding provisions 

determined by the contracting officer, 

with the advice of counsel, not to apply 

to contracts funded with nonappropriated funds. Adherence to a 

process similar to those required by or 

best practices suggested by the FAR will 

not confer court jurisdiction concerning 

non-appropriated funds that does not 

otherwise exist. 

3401.105 Issuance. 

3401.105–2 Arrangement of regulations. 

(c)(5) References and citations. The 

regulations in this chapter may be 

referred to as the Department of 

Education Acquisition Regulation or the 

EDAR. References to the EDAR are made 

in the same manner as references to the 

FAR. See FAR 1.105–2(c). 

3401.105–3 Copies. 

Copies of the EDAR in the Federal 

Register and Code of Federal 

Regulations (CFR) may be purchased 

from the Superintendent of Documents, 

Government Printing Office (GPO), 

Washington, DC 20402. An electronic 

version of the EDAR is available for 

viewing at: http://www.ed.gov/policy/ 

fund/reg/clibrary/edar.html. 

Subpart 3401.3—Agency Acquisition 

Regulations 

3401.301 Policy. 

(a)(1) Subject to the authorities in 

FAR 1.301(c) and other statutory 

authority, the Secretary of Education 

(Secretary) or delegate may issue or 

authorize the issuance of the EDAR. It 

implements or supplements the FAR 

and incorporates, together with the 

FAR, Department policies, procedures, 

contract clauses, solicitation provisions, 

and forms that govern the contracting 

process or otherwise control the 

relationship between the Agency, 

including its suborganizations, and 

contractors or prospective contractors. 

The Head of Contracting Activity (HCA) 

for FSA may issue supplementary 

guidelines applicable to FSA. 

3401.303 Publication and codification. 

(a) The EDAR is issued as chapter 34 

of title 48 of the CFR. 

(1) The FAR numbering illustrations 

at FAR 1.105–2 apply to the EDAR. 

(2) The EDAR numbering system 

corresponds with the FAR numbering 

system. An EDAR citation will include 

the prefix ‘‘34’’ prior to its corresponding 

FAR part citation; e.g., FAR 25.108–2 

would have corresponding EDAR text 

numbered as EDAR 3425.108–2. 

(3) Supplementary material for which 

there is no counterpart in the FAR will 

be codified with a suffix beginning with 

‘‘70’’ or, in cases of successive sections 

and subsections, will be numbered in 

the 70 series (i.e., 71–79). These 

supplementing sections and subsections 

will appear to the closest corresponding 

FAR citation; e.g., FAR 16.4 (Incentive 

Contracts) may be augmented in the 

EDAR by citing EDAR 3416.470 (Award 

Term) and FAR 16.403 (Fixed-price 

incentive contracts) may be augmented 

in the EDAR by citing EDAR 3416.403– 


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70 (Award fee contracts). (Note: These 

citations are for illustrative purposes 

only and may not actually appear in the 

published EDAR.) 

For example: 

FAR Is implemented as Is augmented as 

15 ................................................................................... 3415 ............................................................................... 3415.70. 

15.1 ................................................................................ 3415.1 ............................................................................ 3415.170. 

15.101 ............................................................................ 3415.101 ........................................................................ 3415.101–70. 

15.101–1 ........................................................................ 3415.101–1 .................................................................... 3415.101–1–70. 

15.101–1(b) .................................................................... 3415.101–1(b) ............................................................... 3415.101–1(b)(70). 

15.101–1(b)(1) ................................................................ 3415.101–1(b)(1) ........................................................... 3415.101–1(b)(1)(70). 

(c) Activity-Specific Authority. 

Guidance that is unique to an 

organization with HCA authority 

contains that activity’s acronym directly 

preceding the cite. The following 

activity acronyms apply: 

FSA—Federal Student Aid. 

3401.304 Agency control and compliance 

procedures. 

(a) The EDAR is issued for 

Department acquisition guidance in 

accordance with the policies stated in 

FAR 1.301. The EDAR is subject to the 

same review procedures within the 

Department as other regulations of the 

Department. 

Subpart 3401.4—Deviations 

3401.401 Definition. 

A deviation from the EDAR has the 

same meaning as a deviation from the 

FAR. 

3401.403 Individual deviations. 

An individual deviation from the FAR 

or the EDAR must be approved by the 

Senior Procurement Executive (SPE). 

3401.404 Class deviations. 

A class deviation from the FAR or the 

EDAR must be approved by the Chief 

Acquisition Officer (CAO). 

Subpart 3401.5—Agency and Public 

Participation 

3401.501 Solicitation of agency and public 

views. 

3401.501–2 Opportunity for public 

comments. 

Unless the Secretary approves an 

exception, the Department issues the 

EDAR, including any amendments to 

the EDAR, in accordance with the 

procedures for public participation in 5 

U.S.C. 553. Comments on proposed 

Department notices of proposed 

rulemaking may be made at http:// 

www.regulations.gov. 

Subpart 3401.6—Career Development, 

Contracting Authority, and Responsibilities 

3401.601 General. 

(a) Contracting authority is vested in 

the Secretary. The Secretary has 

delegated this authority to the Chief 

Acquisition Officer (CAO). The 

Secretary has also delegated contracting 

authority to the Senior Procurement 

Executive (SPE), giving the SPE broad 

authority to perform functions dealing 

with the management direction of the 

entire Department’s procurement 

system, including implementation of its 

unique procurement policies, 

regulations, and standards. Limitations 

to the extent of this authority and 

successive delegations are set forth in 

the respective memorandums of 

delegations. 

3401.602–3 Ratification of unauthorized 

commitments. 

(a) Definitions. As used in this 

subpart, ‘‘commitment’’ includes 

issuance of letters of intent and 

arrangements for free vendor services or 

use of equipment with the promise or 

the appearance of commitment that a 

contract, modification, or order will, or 

may, be awarded. 

(b) Policy. 

(1) The HCA or Chief of the 

Contracting Office may, or may not, 

later ratify unauthorized commitments 

made by individuals without 

contracting authority or by contracting 

officers acting in excess of the limits of 

their delegated authority. Law and 

Regulation requires that only 

individuals acting within the scope of 

their authority make acquisitions. 

Within the Department, that authority 

vests solely with the Contracting 

Officer. Acquisitions made by other 

than authorized personnel are matters of 

serious misconduct. The employee may 

be held legally and personally liable for 

the unauthorized commitment. 

(2) Ratifications do not require 

concurrence from legal counsel. 

(3) The person who made the 

unauthorized commitment must prepare 

the request for approval that must be 

submitted through the person’s manager 

to the approving official. 

(4) The Chief of the Contracting Office 

may review and sign or reject 

ratification requests up to $25,000. 

(5) All other ratification requests must 

be reviewed and signed or rejected by 

the HCA. 

3401.670 Nomination and appointment of 

contracting officer’s representatives 

(CORs). 

3401.670–1 General. 

(a) Program offices must nominate 

personnel for consideration of COR 

appointment in accordance with the 

Department’s COR Policy Guide. 

(b) The contracting officer must 

determine what, if any, duties will be 

delegated to a COR. 

(c) The contracting officer may 

appoint as many CORs as is deemed 

necessary to support efficient contract 

administration. 

(d) Only individuals with a written 

delegation of authority from a 

contracting officer may act in any 

capacity as a representative of that 

contracting officer, including any 

alternate, assistant, or back-up duties to 

the COR. 

(e) For all contracts in which an 

information technology system exists, 

the System Security Officer for that 

system will perform all responsibilities 

necessary for contractor access to the 

system. 

3401.670–2 Appointment. 

COR appointments must be in 

accordance with the Department’s COR 

Program Guide. 

3401.670–3 Contract clause. 

Contracting Officers must insert a 

clause substantially the same as the 

clause at 3452.201–70 (Contracting 

Officer’s Representative (COR)), in all 

solicitations and contracts for which a 

COR will be (or is) appointed. 

PART 3402—DEFINITIONS OF WORDS 

AND TERMS 

Subpart 3402.1—Definitions 

Sec. 

3402.101 Definitions. 

3402.101–70 Abbreviations and acronyms. 

Subpart 3402.2—Definitions Clause 

3402.201 Contract clause. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 


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Subpart 3402.1—Definitions 

3402.101 Definitions. 

As used in this chapter— 

Chief Acquisition Officer or CAO 

means the official responsible for 

monitoring the agency’s acquisition 

activities, evaluating them based on 

applicable performance measurements, 

increasing the use of full and open 

competition in agency acquisitions, 

making acquisition decisions consistent 

with applicable laws, and establishing 

clear lines of authority, accountability, 

and responsibility for acquisition 

decision-making and developing and 

maintaining an acquisition career 

management program. 

Chief of the Contracting Office means 

an official serving in the contracting 

activity (CAM or FSA Acquisitions) as 

the manager of a group that awards and 

administers contracts for a principal 

office of the Department. See also 

definition of Head of the Contracting 

Activity or HCA below. 

Contracting Officer’s Representative 

or COR means the person representing 

the Federal government for the purpose 

of technical monitoring of contract 

performance. The COR is not authorized 

to issue any instructions or directions 

that effect any increases or decreases in 

the scope of work or that would result 

in the increase or decrease of the cost or 

price of a contract or a change in the 

delivery dates or performance period of 

a contract. 

Department or ED means the United 

States Department of Education. 

Head of the Contracting Activity or 

HCA means those officials within the 

Department who have responsibility for 

and manage an acquisition organization 

and usually hold unlimited 

procurement authority. The Director, 

Federal Student Aid Acquisitions, is the 

HCA for FSA. The Director, Contracts 

and Acquisitions Management (CAM), is 

the HCA for all other Departmental 

program offices and all boards, 

commissions, and councils under the 

management control of the Department. 

Performance-Based Organization or 

PBO is the office within the Department 

that is mandated by Public Law 105–244 

to carry out Federal student assistance 

or aid programs and report to Congress 

on an annual basis. It may also be 

referred to as ‘‘Federal Student Aid.’’ 

Senior Procurement Executive or SPE 

means the single agency official 

appointed as such by the head of the 

agency and delegated broad 

responsibility for acquisition functions, 

including issuing agency acquisition 

policy and reporting on acquisitions 

agency-wide. The SPE also acts as the 

official one level above the contracting 

officer when the HCA is acting as a 

contracting officer. 

3402.101–70 Abbreviations and acronyms. 

CAO—Chief Acquisition Officer. 

CO—Contracting Officer. 

COR—Contracting Officer’s 

Representative. 

FSA—Federal Student Aid. 

HCA—Head of the Contracting Activity. 

IPv6—Internet Protocol version 6. 

OMB—Office of Management and 

Budget. 

OSDBU—Office of Small and 

Disadvantaged Business Utilization. 

PBO—Performance-Based Organization 

(Federal Student Aid). 

RFP—Request for Proposal. 

SBA—Small Business Administration. 

SPE—Senior Procurement Executive. 

Subpart 3402.2—Definitions Clause 

3402.201 Contract clause. 

The Contracting Officer must insert 

the clause at 3452.202–1 (Definitions— 

Department of Education) in all 

solicitations and contracts in which the 

clause at FAR 52.202–1 is required. 

PART 3403—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

Subpart 3403.1—Safeguards 

Sec. 

3403.101 Standards of conduct. 

3403.101–3 Agency regulations. 

Subpart 3403.2—Contractor Gratuities to 

Government Personnel 

3403.203 Reporting suspected violations of 

the gratuities clause. 

Subpart 3403.3—Reports of Suspected 

Antitrust Violations 

3403.301 General. 

Subpart 3403.4—Contingent Fees 

3403.409 Misrepresentation or violations of 

the covenant against contingent fees. 

Subpart 3403.6—Contracts with 

Government Employees or Organizations 

Owned or Controlled by Them 

3403.602 Exceptions. 

Authority: 5 U.S.C. 301. 

Subpart 3403.1—Safeguards 

3403.101 Standards of conduct. 

3403.101–3 Agency regulations. 

The Department’s regulations on 

standards of conduct and conflicts of 

interest are in 34 CFR part 73, Standards 

of Conduct. 

Subpart 3403.2—Contractor Gratuities 

to Government Personnel 

3403.203 Reporting suspected violations 

of the Gratuities clause. 

(a) Suspected violations of the 

Gratuities clause at FAR 52.203–3 must 

be reported to the HCA in writing 

detailing the circumstances. 

(b) The HCA evaluates the report with 

the assistance of the Designated Agency 

Ethics Officer. If the HCA determines 

that a violation may have occurred, the 

HCA refers the report to the SPE for 

disposition. 

Subpart 3403.3—Reports of Suspected 

Antitrust Violations 

3403.301 General. 

Any Departmental personnel who 

have evidence of a suspected antitrust 

violation in an acquisition must— 

(1) Report that evidence through the 

HCA to the Office of the General 

Counsel for referral to the Attorney 

General; and 

(2) Provide a copy of that evidence to 

the SPE. 

Subpart 3403.4—Contingent Fees 

3403.409 Misrepresentation or violations 

of the covenant against contingent fees. 

Any Departmental personnel who 

suspect or have evidence of attempted 

or actual exercise of improper influence, 

misrepresentation of a contingent fee 

arrangement, or other violation of the 

Covenant Against Contingent Fees, must 

report the matter promptly in 

accordance with the procedures in 

3403.203. 

Subpart 3403.6—Contracts With 

Government Employees or 

Organizations Owned or Controlled by 

Them 

3403.602 Exceptions. 

Exceptions under FAR 3.601 must be 

approved by the HCA. 

SUBCHAPTER B—COMPETITION AND 

ACQUISITION PLANNING PART 3405— 

PUBLICIZING CONTRACT ACTIONS 

Subpart 3405.2—Synopses of Proposed 

Contract Actions 

Sec. 

3405.202 Exceptions. 

3405.203 Publicizing and response time. 

3405.205 Special situations. 

3405.207 Preparation and transmittal of 

synopses. 

3405.270 Notices to perform market 

surveys. 

Subpart 3405.5—Paid Advertisements 

3405.502 Authority. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 


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Subpart 3405.2—Synopses of 

Proposed Contract Actions 

3405.202 Exceptions. 

(a)(15) FSA—Issuance of a synopsis is 

not required when the firm to be 

solicited has previously provided a 

module for the system under a contract 

that contained cost, schedule, and 

performance goals and the contractor 

met those goals. 

3405.203 Publicizing and response time. 

(c) FSA—Notwithstanding other 

provisions of the FAR, a bid or proposal 

due date of less than 30 days is 

permitted after issuance of a synopsis 

for acquisitions for noncommercial 

items. However, if time permits, a bid or 

proposal due date that affords potential 

offerors reasonable time to respond and 

fosters quality submissions should be 

established. 

3405.205 Special situations. 

(g) FSA—Module of a previously 

awarded system. Federal Student Aid 

must satisfy the publication 

requirements for sole source and 

competitive awards for a module of a 

previously awarded system by 

publishing a notice of intent on the 

governmentwide point of entry, not less 

than 30 days before issuing a 

solicitation. This notice is not required 

if a contractor who is to be solicited to 

submit an offer previously provided a 

module for the system under a contract 

that contained cost, schedule, and 

performance goals, and the contractor 

met those goals. 

3405.207 Preparation and transmittal of 

synopses. 

(c) FSA—In Phase One of a TwoPhase Source Selection as described in 

3415.302–70, the contracting officer 

must publish a notice in accordance 

with FAR 5.2, except that the notice 

must include only the following: 

(1) Notification that the procurement 

will be conducted using the specific 

procedures included in 3415.302–70. 

(2) A general notice of the scope or 

purpose of the procurement that 

provides sufficient information for 

sources to make informed business 

decisions regarding whether to 

participate in the procurement. 

(3) A description of the basis on 

which potential sources are to be 

selected to submit offers in the second 

phase. 

(4) A description of the information 

that is to be required to be submitted if 

the request for information is made 

separate from the notice. 

(5) Any other information that the 

contracting officer deems is appropriate. 

(h) FSA—When modular contracting 

authority is being utilized, the notice 

must invite comments and support if it 

is believed that modular contracting is 

not suited for the requirement being 

procured. 

3405.270 Notices to perform market 

surveys. 

(a) If a sole source contract is 

anticipated, the issuance of a notice of 

a proposed contract action that is 

detailed enough to permit the 

submission of meaningful responses and 

the subsequent evaluation of the 

responses by the Federal government 

constitutes an acceptable market survey. 

(b) The notice must include— 

(1) A clear statement of the supplies 

or services to be procured; 

(2) Any capabilities or experience 

required of a contractor and any other 

factor relevant to those requirements; 

(3) A statement that all responsible 

sources submitting a proposal, bid, or 

quotation must be considered; 

(4) Name, business address, and 

phone number of the Contracting 

Officer; and 

(5) Justification for a sole source and 

the identity of that source. 

Subpart 3405.5—Paid Advertisements 

3405.502 Authority. 

Authority to approve publication of 

paid advertisement in newspapers is 

delegated to the HCA. 

PART 3406—COMPETITION 

REQUIREMENTS 

Sec. 

3406.001 Applicability. 

Subpart 3406.3—Other Than Full and Open 

Competition 

3406.302–5 Authorized or required by 

statute. 

Subpart 3406.5—Competition Advocates 

3406.501 Requirement. 

Authority: 5 U.S.C. 301; 41 U.S.C. 418(a) 

and (b); and 20 U.S.C. 1018a. 

3406.001 Applicability. 

(b) FSA—This part does not apply to 

proposed contracts and contracts 

awarded based on other than full and 

open competition when the conditions 

for successive systems modules set forth 

in EDAR 3417.70, Modular Contracting, 

are utilized. 

Subpart 3406.3—Other Than Full and 

Open Competition 

3406.302–5 Authorized or required by 

statute. 

(a) Authority. 

(1) Citations: 20 U.S.C. 1018a. 

(2) Noncompetitive awards of 

successive modules for systems are 

permitted when the conditions set forth 

in EDAR 3417.70 are met. 

Subpart 3406.5—Competition 

Advocates 

3406.501 Requirement. 

The Competition Advocate for the 

Department is the Deputy Director, 

Contracts and Acquisitions 

Management. 

PART 3408—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

Subpart 3408.8—Acquisition of Printing and 

Related Supplies 

Sec. 

3408.870 Printing clause. 

3408.871 Paperwork reduction. 

Authority: 5 U.S.C. 301, unless otherwise 

noted. 

Subpart 3408.8—Acquisition of 

Printing and Related Supplies 

(44 U.S.C. 501) 

3408.870 Printing clause. 

The contracting officer must insert the 

clause at 3452.208–71 (Printing) in all 

solicitations and contracts other than 

purchase orders. 

3408.871 Paperwork reduction. 

The Contracting Officer must insert 

the clause at 3452.208–72 (Paperwork 

Reduction Act) in all solicitations and 

contracts in which the contractor will 

develop forms or documents for public 

use. 

PART 3409—CONTRACTOR 

QUALIFICATIONS 

Subpart 3409.4—Debarment, Suspension, 

and Ineligibility 

Sec. 

3409.400 Scope of subpart. 

3409.401 Applicability. 

3409.403 Definitions. 

3409.406 Debarment. 

3409.406–3 Procedures. 

3409.407 Suspension. 

3409.407–3 Procedures. 

Subpart 3409.5—Organizational and 

Consultant Conflicts of Interest 

3409.502 Applicability. 

3409.503 Waiver. 

3409.506 Procedures. 

3409.507 Solicitation provision and 

contract clause. 

3409.507–1 Solicitation provision. 

3409.507–2 Contract clause. 

3409.570 Certification at or below the 

simplified acquisition threshold. 

Authority: 5 U.S.C. 301. 


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Subpart 3409.4—Debarment, 

Suspension, and Ineligibility 

3409.400 Scope of subpart. 

This subpart implements FAR subpart 

9.4 by detailing policies and procedures 

governing the debarment and 

suspension of organizations and 

individuals from participating in ED 

contracts and subcontracts. 

3409.401 Applicability. 

This subpart applies to all 

procurement debarment and suspension 

actions initiated by ED. This subpart 

does not apply to nonprocurement 

debarment and suspension. 

3409.403 Definitions. 

The SPE is designated as the 

‘‘debarring official’’ and ‘‘suspending 

official’’ as defined in FAR 9.403 and is 

designated as the agency official 

authorized to make the decisions 

required in FAR 9.406 and FAR 9.407. 

3409.406 Debarment. 

3409.406–3 Procedures. 

(b) Decision making process. 

(1) Contractors proposed for 

debarment may submit, in person, in 

writing, or through a representative, 

information and argument in opposition 

to the proposed debarment. The 

contractor must submit additional 

information within 30 days of receipt of 

the notice of proposal to debar, as 

described in FAR 9.406–3(c). 

(2) In actions not based upon a 

conviction or civil judgment, if the 

contractor’s submission in opposition 

raises a genuine dispute over facts 

material to the proposed debarment, the 

contractor may request a fact-finding 

conference. If the Debarring Official 

determines that there is a genuine 

dispute of material fact, the Debarring 

Official will conduct fact-finding and 

base the decision in accordance with 

FAR 9.406–3(b)(2) and (d)–(f). 

3409.407 Suspension. 

3409.407–3 Procedures. 

(b) Decision making process. 

(1) Contractors suspended in 

accordance with FAR 9.407 may submit, 

in person, in writing, or through a 

representative, information and 

argument in opposition to the 

suspension. The contractor must submit 

this information and argument within 

30 days of receipt of the notice of 

suspension, as described in FAR 9.407– 

3(c). 

(2) In actions not based upon an 

indictment, if the contractor’s 

submission in opposition raises a 

genuine dispute over facts material to 

the suspension an dif no determination 

has been made, on the basis of 

Department of Justice advice, that 

substantial interests of the Government 

in pending or contemplated legal 

proceedings based on the same facts as 

the suspension would be prejudiced, the 

contractor may request a fact-finding 

conference. The Suspending Official 

will conduct fact-finding and base the 

decision in accordance with FAR 9.407– 

3(b)(2) and (d)-(e). 

Subpart 3409.5—Organizational and 

Consultant Conflicts of Interest 

3409.502 Applicability. 

This subpart applies to all ED 

contracts except contracts with other 

Federal agencies. However, this subpart 

applies to contracts with the Small 

Business Administration (SBA) under 

the 8(a) program. 

3409.503 Waiver. 

The HCA is designated as the official 

who may waive any general rule or 

procedure of FAR Subpart 9.5 or of this 

subpart. 

3409.506 Procedures. 

(a) If the effects of a potential or actual 

conflict of interest cannot be avoided, 

neutralized, or mitigated before award, 

the prospective contractor is not eligible 

for that award. If a potential or actual 

conflict of interest is identified after 

award and the effects cannot be 

avoided, neutralized, or mitigated, ED 

will terminate the contract unless the 

HCA deems continued performance to 

be in the best interest of the Federal 

government. 

(b) The HCA is designated as the 

official to conduct reviews and make 

final decisions under FAR 9.506(b) and 

(c). 

3409.507 Solicitation provision and 

contract clause. 

3409.507–1 Solicitation provision. 

The contracting officer must insert the 

provision in 3452.209–70 (Conflict of 

interest certification) in all solicitations 

for services above the simplified 

acquisition threshold. 

3409.507–2 Contract clause. 

The contracting officer must insert the 

clause at 3452.209–71 (Conflict of 

interest) in all contracts for services 

above the simplified acquisition 

threshold. The clause is applicable to 

each order for services over the 

simplified acquisition threshold under 

task order contracts. 

3409.570 Certification at or below the 

simplified acquisition threshold. 

By accepting any contract, including 

orders against any Schedule or 

Government-wide Acquisition Contract 

(GWAC), with the Department at or 

below the simplified acquisition 

threshold: 

(a) The contractor warrants that, to the 

best of the contractor’s knowledge and 

belief, there are no relevant facts or 

circumstances that would give rise to an 

organizational conflict of interest, as 

defined in FAR Subpart 2.1, or that the 

Contractor has disclosed all such 

relevant information. 

(b) The contractor agrees that if an 

actual or potential organizational 

conflict of interest is discovered after 

award, the contractor will make an 

immediate full disclosure in writing to 

the contracting officer. This disclosure 

must include a description of actions 

that the contractor has taken or proposes 

to take, after consultation with the 

contracting officer, to avoid, mitigate, or 

neutralize the actual or potential 

conflict. 

(c) The contractor agrees that: 

(1) The Government may terminate 

this contract for convenience, in whole 

or in part, if such termination is 

necessary to avoid an organizational 

conflict of interest. 

(2) The Government may terminate 

this contract for default or pursue other 

remedies permitted by law or this 

contract if the contractor was aware or 

should have been aware of a potential 

organizational conflict of interest prior 

to award, or discovers or should have 

discovered an actual or potential 

conflict after award, and does not 

disclose, or misrepresents, relevant 

information to the contracting officer 

regarding the conflict. 

(d) The contractor further agrees to 

insert provisions that substantially 

conform to the language of this section, 

including this paragraph (d), in any 

subcontract or consultant agreement 

hereunder. 

PART 3412—ACQUISITION OF 

COMMERCIAL ITEMS 

Subpart 3412.2—Special Requirements 

for the Acquisition of Commercial 

Items 

Sec. 

3412.203 Procedures for solicitation, 

evaluation, and award. 

Subpart 3412.3—Solicitation Provisions and 

Contract Clauses for the Acquisition of 

Commercial Items 

3412.302 Tailoring of provisions and 

clauses for the acquisition of commercial 

items. 


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Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

Subpart 3412.2—Special Requirements 

for the Acquisition of Commercial 

Items 

3412.203 Procedures for solicitation, 

evaluation, and award. 

As specified in 3413.003, simplified 

acquisition procedures for commercial 

items may be used without regard to any 

dollar or timeframe limitations 

described in FAR 13.5 when acquired 

by the FSA and used for its purposes. 

Subpart 3412.3—Solicitation 

Provisions and Contract Clauses for 

the Acquisition of Commercial Items 

3412.302 Tailoring of provisions and 

clauses for the acquisition of commercial 

items. 

The HCA is authorized to approve 

waivers in accordance with FAR 

12.302(c). The approved waiver may be 

either for an individual contract or for 

a class of contracts for the specific item. 

The approved waiver and supporting 

documentation must be incorporated 

into the contract file. 

SUBCHAPTER C—CONTRACTING 

METHODS AND CONTRACT TYPES 

PART 3413—SIMPLIFIED ACQUISITION 

PROCEDURES 

Sec. 

3413.000 Scope of part. 

3413.003 Policy. 

Subpart 3413.3—Simplified Acquisition 

Methods 

3413.303 Blanket purchase agreements 

(BPAs). 

3413.303–5 Purchases under BPAs. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

3413.000 Scope of part. 

3413.003 Policy. 

(c)(1)(iii) FSA—FSA may use 

simplified acquisition procedures for 

commercial items without regard to any 

dollar or timeframe limitations 

described in FAR 13.5. 

(iv) FSA—FSA may use simplified 

acquisition procedures for noncommercial items up to $1,000,000 

when the acquisition is set aside for 

small businesses, pursuant to EDAR 

3419.502. 

Subpart 3413.3—Simplified Acquisition 

Methods 

3413.303 Blanket purchase agreements 

(BPAs). 

3413.303–5 Purchases under BPAs. 

(b) Individual purchases under 

blanket purchase agreements for 

commercial items may exceed the 

simplified acquisition threshold but 

shall not exceed the threshold for the 

test program for certain commercial 

items, in FAR 13.500(a). 

PART 3414—SEALED BIDDING 

Subpart 3414.4—Opening of Bids and 

Award of Contract 

Sec. 

3414.407 Mistakes in bids. 

3414.407–3 Other mistakes disclosed 

before award. 

Authority: 5 U.S.C. 301. 

Subpart 3414.4—Opening of Bids and 

Award of Contract 

3414.407 Mistakes in bids. 

3414.407–3 Other mistakes disclosed 

before award. 

Authority is delegated to the HCA to 

make determinations under FAR 

14.407–3(a)–(d). 

PART 3415—CONTRACTING BY 

NEGOTIATION 

Subpart 3415.2—Solicitation and Receipt of 

Proposals and Information 

Sec. 

3415.209 Solicitation provisions and 

contract clauses. 

Subpart 3415.3—Source Selection 

3415.302 Source selection objective. 

3415.302–70 Two-phase source selection. 

Subpart 3415.6—Unsolicited Proposals 

3415.605 Content of unsolicited proposals. 

3415.606 Agency procedures. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

Subpart 3415.2—Solicitation and 

Receipt of Proposals and Information 

3415.209 Solicitation provisions and 

contract clauses. 

(a) The Freedom of Information Act 

(FOIA), 5 U.S.C. 552, may require ED to 

release data contained in an offeror’s 

proposal even if the offeror has 

identified the data as restricted in 

accordance with the provision in FAR 

52.215–1(e). The solicitation provision 

in 3452.215–70 (Release of restricted 

data) informs offerors that ED is 

required to consider release of restricted 

data under FOIA and Executive Order 

12600. 

(b) The contracting officer must insert 

the provision in 3452.215–70, in all 

solicitations that include a reference to 

FAR 52.215–1 (Instructions to 

Offerors—Competitive Acquisitions). 

Subpart 3415.3—Source Selection 

3415.302 Source selection objective. 

3415.302–70 Two-phase source selection. 

(a) FSA—May utilize a two-phase 

process to solicit offers and select a 

source for award. The contracting officer 

can choose to use this optional method 

of solicitation when deemed beneficial 

to the FSA in meeting its needs as a 

PBO. 

(b) Phase One. 

(1) The contracting officer must 

publish a notice in accordance with 

FAR 5.2, except that the notice must 

include limited information as specified 

in EDAR 3405.207. 

(2) Information Submitted by Offerors. 

Each offeror must submit basic 

information such as the offeror’s 

qualifications, the proposed conceptual 

approach, costs likely to be associated 

with the approach, and past 

performance data, together with any 

additional information requested by the 

contracting officer. 

(3) Selection for participating in 

second phase. The contracting officer 

must select the offerors that are eligible 

to participate in the second phase of the 

process. The contracting officer must 

limit the number of the selected offerors 

to the number of sources that the 

contracting officer determines is 

appropriate and in the best interests of 

the Federal government. 

(c) Phase Two. 

(1) The contracting officer must 

conduct the second phase of the source 

selection consistent with FAR 15.2 and 

15.3, except as provided by EDAR 

3405.207. 

(2) Only sources selected in the first 

phase will be eligible to participate in 

the second phase. 

Subpart 3415.6—Unsolicited Proposals 

3415.605 Content of unsolicited 

proposals. 

(d) Each unsolicited proposal must 

contain the following certification: 

Unsolicited Proposal Certification By 

Offeror 

This is to certify, to the best of my 

knowledge and belief, that— 

a. This proposal has not been 

prepared under Federal government 

supervision; 

b. The methods and approaches stated 

in the proposal were developed by this 

offeror; 

c. Any contact with employees of the 

Department of Education has been 

within the limits of appropriate advance 

guidance set forth in FAR 15.604; and 


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d. No prior commitments were 

received from departmental employees 

regarding acceptance of this proposal. 

Date: 

lllllllllllllllllll

Organization: 

lllllllllllllllllll

Name: 

lllllllllllllllllll

Title: 

lllllllllllllllllll

(This certification must be signed by a 

responsible person authorized to enter 

into contracts on behalf of the 

organization.) 

3415.606 Agency procedures. 

(b)(1) The HCA or designee is the 

contact point to coordinate the receipt, 

control, and handling of unsolicited 

proposals. 

(2) Offerors must direct unsolicited 

proposals to the HCA. 

PART 3416—TYPES OF CONTRACTS 

Subpart 3416.3—Cost-Reimbursement 

Contracts 

Sec. 

3416.303 Cost-sharing contracts. 

3416.307 Contract clauses. 

Subpart 3416.4—Incentive Contracts 

3416.402 Application of predetermined, 

formula-type incentives. 

3416.402–2 Performance incentives. 

3416.470 Award-term contracting. 

Subpart 3416.6—Time-and-Materials, LaborHour, and Letter Contracts 

3416.603 Letter contracts. 

3416.603–3 Limitations. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

Subpart 3416.3—Cost-Reimbursement 

Contracts 

3416.303 Cost-sharing contracts. 

(b) Application. Costs that are not 

reimbursed under a cost-sharing 

contract may not be charged to the 

Federal government under any other 

grant, contract, cooperative agreement, 

or other arrangement. 

3416.307 Contract clauses. 

(a) If the clause in FAR 52.216–7 

(Allowable Cost and Payment) is used in 

a contract with a hospital, the 

contracting officer must modify the 

clause by deleting the words ‘‘Subpart 

31.2 of the Federal Acquisition 

Regulation (FAR)’’ from paragraph (a) 

and substituting ‘‘34 CFR part 74, 

Appendix E.’’ 

(b) The contracting officer must insert 

the clause at 3452.216–70 (Additional 

cost principles) in all solicitations of 

and resultant cost-reimbursement 

contracts with nonprofit organizations 

other than educational institutions, 

hospitals, or organizations listed in 

Attachment C to Office of Management 

and Budget Circular A–122. 

Subpart 3416.4—Incentive Contracts 

3416.402 Application of predetermined, 

formula-type incentives. 

3416.402–2 Performance incentives. 

(b) Award-term contracting may be 

used for performance-based contracts or 

task orders. See EDAR 3416.470 for the 

definition of award-term contracting 

and implementation guidelines. 

3416.470 Award-term contracting. 

(a) Definition. Award-term contracting 

is a method, based upon a predetermined plan in the contract, to 

extend the contract term for superior 

performance and to reduce the contract 

term for substandard or poor 

performance. 

(b) Applicability. A Contracting 

Officer may authorize use of an awardterm incentive contract for acquisitions 

where the quality of contractor 

performance is of a critical or highly 

important nature. The basic contract 

term may be extended on the basis of 

the Federal government’s determination 

of the excellence of the contractor’s 

performance. Additional periods of 

performance, which are referred to 

herein as ‘‘award terms,’’ are available 

for possible award to the contractor. As 

award term(s) are awarded, each 

additional period of performance will 

immediately follow the period of 

performance for which the award term 

was granted. The contract may end at 

the base period of performance if the 

Federal government determines that the 

contractor’s performance does not 

reflect a level of performance as 

described in the award-term plan. 

Award-term periods may only be earned 

based on the evaluated quality of the 

performance of the contractor. Meeting 

the terms of the contract is not 

justification to award an award-term 

period. The use of an award-term plan 

does not exempt the contract from the 

requirements of FAR 17.207, with 

respect to performing due diligence 

prior to extending a contract term. 

(c) Approvals. The Contracting Officer 

must justify the use of an award-term 

incentive contract in writing. The 

award-term plan approving official will 

be appointed by the HCA. 

(d) Disputes. The Federal government 

unilaterally makes all decisions 

regarding award-term evaluations, 

points, methodology used to calculate 

points, and the degree of the 

contractor’s success. These decisions are 

not subject to the Disputes clause. 

(e) Award-term limitations. 

(1) Award periods may be earned 

during the base period of performance 

and each option period, except the last 

option period. Award-term periods may 

not be earned during the final option 

year of any contract. 

(2) Award-term periods may not 

exceed twelve months. 

(3) The potential award-term periods 

will be priced, evaluated, and 

considered in the initial contract 

selection process. 

(f) Implementation of extensions or 

reduced contract terms. 

(1) An award term is contingent upon 

a continuing need for the supplies or 

services and the availability of funds. 

Award terms may be cancelled prior to 

the start of the period of performance at 

no cost to the Federal government if 

there is not a continued need or 

available funding. 

(2) The extension or reduction of the 

contract term is affected by a unilateral 

contract modification. 

(3) Award-term periods occur after the 

period for which the award term was 

granted. Award-term periods effectively 

move option periods to later contract 

performance periods. 

(4) Contractors have the right to 

decline the award of an award-term 

period. A contractor loses its ability to 

earn additional award terms if an earned 

Award-Term Period is declined. 

(5) Changes to the contract awardterm plan must be mutually agreed 

upon. 

(g) Clause. Insert a clause 

substantially the same as the clause at 

3452.216–71 (Award-term) in all 

solicitations and resulting contracts 

where an award-term incentive contract 

is anticipated. 

Subpart 3416.6—Time and Materials, 

Labor-Hour, and Letter Contracts 

3416.603 Letter contracts. 

3416.603–3 Limitations. 

If the HCA is to sign a letter contract 

as the contracting officer, the SPE signs 

the written determination under FAR 

16.603–3. 

PART 3417—SPECIAL CONTRACTING 

METHODS 

Subpart 3417.2—Options 

Sec. 

3417.204 Contracts. 

3417.207 Exercise of options. 

Subpart 3417.5—Interagency Acquisitions 

Under the Economy Act 

3417.502 General. 

Subpart 3417.7—Modular Contracting 

3417.70 Modular contracting. 


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Authority: 31 U.S.C. 1535 and 20 U.S.C. 

1018a. 

Subpart 3417.2—Options 

3417.204 Contracts. 

(e) Except as otherwise provided by 

law, contract periods that exceed the 

five-year limitation specified in FAR 

17.204(e) must be approved by— 

(1) The HCA for individual contracts; 

or 

(2) The SPE for classes of contracts. 

3417.207 Exercise of options. 

If a contract provision allows an 

option to be exercised within a specified 

timeframe after funds become available, 

it must also specify that the date on 

which funds ‘‘become available’’ is the 

actual date funds become available to 

the contracting officer for obligation. 

(f)(2) The Federal government may 

accept price reductions offered by 

contractors at any time during contract 

performance. Acceptance of price 

reductions offered by contractors will 

not be considered renegotiations as 

identified in this subpart if they were 

not initiated or requested by the Federal 

government. 

Subpart 3417.5—Interagency 

Acquisitions Under the Economy Act 

3417.502 General. 

No other Federal department or 

agency may purchase property or 

services under contracts established or 

administered by FSA unless the 

purchase is approved by SPE for the 

requesting Agency. 

Subpart 3417.7—Modular Contracting 

3417.70 Modular contracting. 

(a) FSA—FSA may incrementally 

conduct successive procurements of 

modules of overall systems. Each 

module must be useful in its own right 

or useful in combination with the earlier 

procurement modules. Successive 

modules may be procured on a sole 

source basis under the following 

circumstances: 

(1) Competitive procedures are used 

for awarding the contract for the first 

system module; and 

(2) The solicitation for the first 

module included the following: 

(i) A general description of the entire 

system that was sufficient to provide 

potential offerors with reasonable notice 

of the general scope of future modules; 

(ii) Other sufficient information to 

enable offerors to make informed 

business decisions to submit offers for 

the first module; and 

(iii) A statement that procedures, i.e., 

the sole source awarding of follow-on 

modules, could be used for the 

subsequent awards. 

SUBCHAPTER D—SOCIOECONOMIC 

PROGRAMS 

PART 3419—SMALL BUSINESS 

PROGRAMS 

Subpart 3419.2—Policies 

Sec. 

3419.201 General policy. 

3419.201–70 Office of Small and 

Disadvantaged Business Utilization 

(OSDBU). 

Subpart 3419.5—Set-Asides for Small 

Business 

3419.502 Setting aside acquisitions. 

3419.502–4 Methods of conducting setasides. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

Subpart 3419.2—Policies 

3419.201 General policy. 

3419.201–70 Office of Small and 

Disadvantaged Business Utilization. 

The Office of Small and 

Disadvantaged Business Utilization 

(OSDBU), Office of the Deputy 

Secretary, is responsible for facilitating 

the implementation of the Small 

Business Act, as described in FAR 

19.201. The OSDBU develops rules, 

policy, procedures, and guidelines for 

the effective administration of ED’s 

small business program. 

Subpart 3419.5—Set-Asides for Small 

Business 

3419.502 Setting aside acquisitions. 

3419.502–4 Methods of conducting setasides. 

(a) Simplified acquisition procedures 

as described in FAR Part 13 for the 

procurement of noncommercial services 

for FSA requirements may be used 

under the following circumstances: 

(1) The procurement does not exceed 

$1,000,000; 

(2) The procurement is conducted as 

a small business set-aside pursuant to 

section 15(a) of the Small Business Act; 

(3) The price charged for supplies 

associated with the services are 

expected to be less than 20 percent of 

the total contract price; 

(4) The procurement is competitive; 

and 

(5) The procurement is not for 

construction. 

PART 3422—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

Subpart 3422.10—Service Contract Act of 

1965, as Amended 

Sec. 

3422.1002 Statutory requirements. 

3422.1002–1 General. 

Authority: 5 U.S.C. 301; 41 U.S.C. 418b (a) 

and (b). 

Subpart 3422.10—Service Contract Act of 

1965, as Amended 

3422.1002 Statutory requirements. 

3422.1002–1 General. 

Consistent with 29 CFR 4.145, 

Extended term contracts, the five-year 

limitation set forth in the Service 

Contract Act of 1965, as amended 

(Service Contact Act), applies to each 

period of the contract individually, not 

the cumulative period of base and 

option periods. Accordingly, no contract 

subject to the Service Contract Act 

issued by the Department of Education 

will have a base period or option period 

that exceeds five years. 

PART 3424—PROTECTION OF PRIVACY 

AND FREEDOM OF INFORMATION 

Subpart 3424.1—Protection of Individual 

Privacy 

Sec. 

3424.103 Procedures. 

3424.170 Protection of human subjects. 

Subpart 3424.2—Freedom of Information 

Act 

3424.201 Authority. 

3424.203 Policy. 

Authority: 5 U.S.C. 301. 

Subpart 3424.1—Protection of 

Individual Privacy 

3424.103 Procedures. 

(a) If the Privacy Act of 1974 (Privacy 

Act) applies to a contract, the 

contracting officer must specify in the 

contract the disposition to be made of 

the system or systems of records upon 

completion of performance. For 

example, the contract may require the 

contractor to completely destroy the 

records, to remove personal identifiers, 

to turn the records over to ED, or to keep 

the records but take certain measures to 

keep the records confidential and 

protect the individual’s privacy. 

(b) If a notice of the system of records 

has not been published in the Federal 

Register, the contracting officer may 

proceed with the acquisition but must 

not award the contract until the notice 

is published, unless the contracting 

officer determines, in writing, that 

portions of the contract may proceed 

without maintaining information subject 


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to the Privacy Act. In this case, the 

contracting officer may— 

(1) Award the contract, authorizing 

performance only of those portions not 

subject to the Privacy Act; and 

(2) After the notice is published and 

effective, authorize performance of the 

remainder of the contract. 

3424.170 Protection of human subjects. 

In this subsection, ‘‘Research’’ means 

a systematic investigation, including 

research development, testing and 

evaluation, designed to develop or 

contribute to generalizable knowledge. 

(34 CFR 97.102(d)) Research is 

considered to involve human subjects 

when a researcher obtains information 

about a living individual through 

intervention or interaction with the 

individual or obtains personally 

identifiable private information about 

an individual. Some categories of 

research are exempt under the 

regulations, and the exemptions are in 

34 CFR part 97. 

(a) Insert the provision in 3452.224– 

71 (Notice about research activities 

involving human subjects) in any 

solicitation where a resultant contract 

will include, or is likely to include, 

research activities involving human 

subjects covered under 34 CFR part 97. 

(b) Insert the clause at 3452.224–72 

(Research activities involving human 

subjects) in any solicitation that 

includes the provision in 3452.224–71 

(Notice about research activities 

involving human subjects) and in any 

resultant contract. 

Subpart 3424.2—Freedom of 

Information Act 

3424.201 Authority. 

The Department’s regulations 

implementing the Freedom of 

Information Act, 5 U.S.C. 552, are in 34 

CFR part 5. 

3424.203 Policy. 

(a) [Reserved] 

(b) The Department’s policy is to 

release all information incorporated into 

a contract and documents that result 

from the performance of a contract to 

the public under the Freedom of 

Information Act. The release or 

withholding of documents requested 

will be made on a case-by-case basis. 

Contracting officers must advise offerors 

and prospective contractors of the 

possibility that their submissions may 

be released under the Freedom of 

Information Act, not withstanding any 

restrictions that are included at the time 

of proposal submission. A clause 

substantially the same as the clause at 

3452.224–70 (Release of information 

under the Freedom of Information Act) 

must be included in all solicitations and 

contracts. 

PART 3425—FOREIGN ACQUISITION 

Subpart 3425.1—Buy American ActSupplies 

Sec. 

3425.102 Exceptions. 

Authority: 5 U.S.C. 301. 

Subpart 3425.1—Buy American Act— 

Supplies 

3425.102 Exceptions. 

The HCA approves determinations 

under FAR 25.103(b)(2)(i). 

Subchapter E—General Contracting 

Requirements 

PART 3427—PATENTS, DATA, AND 

COPYRIGHTS 

Subpart 3427.4—Rights in Data and 

Copyrights 

Sec. 

3427.409 Solicitation provisions and 

contract clauses. 

Authority: 5 U.S.C. 301. 

Subpart 3427.4—Rights in Data and 

Copyrights 

3427.409 Solicitation provisions and 

contract clauses. 

(a) The contracting officer must insert 

the clause at 3452.227–70 (Publication 

and publicity) in all solicitations and 

contracts other than purchase orders. 

(b) The contracting officer must insert 

the clause at 3452.227–71 (Advertising 

of awards) in all solicitations and 

contracts other than purchase orders. 

(c) The contracting officer must insert 

the clause at 3452.227–72 (Use and nondisclosure agreement) in all contracts 

over the simplified acquisition 

threshold, and in contracts under the 

simplified acquisition threshold, as 

appropriate. 

(d) The contracting officer must insert 

the clause at 3452.227–73 (Limitations 

on the use or disclosure of Governmentfurnished information marked with 

restrictive legends) in all contracts of 

third party vendors who require access 

to government-furnished information 

including other contractors’ technical 

data, proprietary information, or 

software. 

PART 3428—BONDS AND INSURANCE 

Subpart 3428.3—Insurance 

Sec. 

3428.311 Solicitation provision and 

contract clause on liability insurance 

under cost-reimbursement contracts. 

3428.311–2 Contract clause. 

Authority: 5 U.S.C. 301. 

Subpart 3428.3—Insurance 

3428.311 Solicitation provision and 

contract clause on liability insurance under 

cost-reimbursement contracts. 

3428.311–2 Contract clause. 

The contracting officer must insert the 

clause at 3452.228–70 (Required 

insurance) in all solicitations and 

resultant cost-reimbursement contracts. 

PART 3432—CONTRACT FINANCING 

Subpart 3432.4—Advance Payments 

for Non-Commercial Items 

Sec. 

3432.402 General. 

3432.407 Interest. 

Subpart 3432.7—Contract Funding 

3432.705 Contract clauses. 

3432.705–2 Clauses for limitation of cost or 

funds. 

Authority: 5 U.S.C. 301. 

Subpart 3432.4—Advance Payments 

for Non-Commercial Items 

3432.402 General. 

The HCA is delegated the authority to 

make determinations under FAR 

32.402(c)(1)(iii). This authority may not 

be redelegated. 

3432.407 Interest. 

The HCA is designated as the official 

who may authorize advance payments 

without interest under FAR 32.407(d). 

Subpart 3432.7—Contract Funding 

3432.705 Contract clauses. 

3432.705–2 Clauses for limitation of cost 

or funds. 

(a) The contracting officer must insert 

the clause at 3452.232–70 (Limitation of 

cost or funds) in all solicitations and 

contracts where a Limitation of cost or 

Limitation of funds clause is utilized. 

(b) The contracting officer must insert 

the provision in 3452.232–71 

(Incremental funding) in a solicitation if 

a cost-reimbursement contract using 

incremental funding is contemplated. 

PART 3433—PROTESTS, DISPUTES, 

AND APPEALS 

Subpart 3433.1—Protests 

Sec. 

3433.103 Protests to the agency. 

Authority: 5 U.S.C. 301. 

Subpart 3433.1—Protests 

3433.103 Protests to the agency. 

(f)(3) The contracting officer’s HCA 

must approve the justification or 

determination to continue performance. 


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The criteria in FAR 33.103(f)(3) must be 

followed in making the determination to 

award a contract before resolution of a 

protest. 

SUBCHAPTER F—SPECIAL CATEGORIES 

OF CONTRACTING 

PART 3437—SERVICE CONTRACTING 

Subpart 3437.1—Service Contracts— 

General 

Sec. 

3437.102 Policy. 

3437.170 Observance of administrative 

closures 

Subpart 3437.2—Advisory and Assistance 

Services 

3437.270 Services of consultants clauses. 

Subpart 3437.6—Performance-Based 

Acquisition 

3437.670 Contract type. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

Subpart 3437.1—Service Contracts— 

General 

3437.102 Policy. 

If a service contract requires one or 

more end items of supply, FAR Subpart 

37.1 and this subpart apply only to the 

required services. 

3437.170 Observance of administrative 

closures. 

The contracting officer must insert the 

clause at 3452.237–71 (Observance of 

administrative closures) in all 

solicitations and contracts for services. 

Subpart 3437.2—Advisory and 

Assistance Services 

3437.270 Services of consultants clause. 

The contracting officer must insert the 

clause at 3452.237–70 (Services of 

consultants) in all solicitations and 

resultant cost-reimbursement contracts 

that do not provide services to FSA. 

Subpart 3437.6—Performance-Based 

Acquisition 

3437.670 Contract type. 

Award-term contracting may be used 

for performance-based contracts and 

task orders that provide opportunities 

for significant improvements and 

benefits to the Department. Use of 

award-term contracting must be 

approved in advance by the HCA. 

PART 3439—ACQUISITION OF 

INFORMATION TECHNOLOGY 

Subpart 3439.70——Department 

Requirements for Acquisition of Information 

Technology 

Sec. 

3439.701 Internet Protocol version 6. 

3439.702 Department security 

requirements. 

3439.703 Federal desktop core 

configuration (FDCC) compatibility. 

Authority: 5 U.S.C. 301 and 20 U.S.C. 

1018a. 

Subpart 3439.70—Department 

Requirements for Acquisition of 

Information Technology 

3439.701 Internet Protocol version 6. 

The contracting officer must insert the 

clause at 3452.239–70 (Internet Protocol 

version 6 (IPv6)) in all solicitations and 

resulting contracts for hardware and 

software. 

3439.702 Department security 

requirements. 

The contracting officer must include 

the solicitation provision in 3452.239– 

71 (Notice to offerors of Department 

security requirements) and the clause at 

3452.239–72 (Department security 

requirements) when contractor 

employees will have access to 

Department-controlled facilities or 

space, or when the work (wherever 

located) involves the design, operation, 

repair, or maintenance of information 

systems and access to sensitive but 

unclassified information. 

3439.703 Federal desktop core 

configuration (FDCC) compatibility. 

The contracting officer must include 

the clause at 3452.239–73 (Federal 

desktop core configuration (FDCC) 

compatibility) in all solicitations and 

contracts where software will be 

developed, maintained, or operated on 

any system using the FDCC 

configuration. 

SUBCHAPTER G—CONTRACT 

MANAGEMENT 

PART 3442—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

Subpart 3442.70—Contract Monitoring 

Sec. 

3442.7001 Litigation and claims clause. 

3442.7002 Delays clause. 

Subpart 3442.71—Accessibility of meetings, 

conferences, and seminars to persons with 

disabilities 

3442.7101 Policy and clause. 

Authority: 5 U.S.C. 301. 

Subpart 3442.70—Contract Monitoring 

3442.7001 Litigation and claims clause. 

The contracting officer must insert the 

clause at 3452.242–70 (Litigation and 

claims) in all solicitations and resultant 

cost-reimbursement contracts. 

3442.7002 Delays. 

The contracting officer must insert the 

clause at 3452.242–71 (Notice to the 

government of delays) in all 

solicitations and contracts other than 

purchase orders. 

Subpart 3442.71—Accessibility of 

Meetings, Conferences, and Seminars 

to Persons With Disabilities 

3442.7101 Policy and clause. 

(a) It is the policy of ED that all 

meetings, conferences, and seminars be 

accessible to persons with disabilities. 

(b) The contracting officer must insert 

the clause at 3452.242–73 (Accessibility 

of meetings, conferences, and seminars 

to persons with disabilities) in all 

solicitations and contracts. 

PART 3443—CONTRACT 

MODIFICATIONS 

Subpart 3443.1—General 

Sec. 

3443.107 Contract clause 

Authority: 5 U.S.C. 301. 

Subpart 3443.1—General 

3443.107 Contract clause. 

The contracting officer must insert a 

clause substantially the same as 

3452.243–70 (Key personnel) in all 

solicitations and resultant contracts in 

which it will be essential for the 

contracting officer to be notified that a 

change of designated key personnel is to 

take place by the contractor. 

PART 3445—GOVERNMENT 

PROPERTY 

Subpart 3445.4—Contractor Use and Rental 

of Government Property 

Sec. 

3445.405 Contracts with foreign 

governments or international 

organizations. 

Authority: 5 U.S.C. 301. 

Subpart 3445.4—Contractor Use and 

Rental of Government Property 

3445.405 Contracts with foreign 

governments or international organizations. 

Requests by, or for the benefit of, 

foreign governments or international 

organizations to use ED production and 

research property must be approved by 

the HCA. The HCA must determine the 

amount of cost to be recovered or rental 

charged, if any, based on the facts and 

circumstances of each case. 

PART 3447—TRANSPORTATION 

Subpart 3447.7—Foreign Travel 

Sec. 

3447.701 Foreign travel clause. 


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Authority: 5 U.S.C. 301. 

Subpart 3447.7—Foreign Travel 

3447.701 Foreign travel clause. 

The contracting officer must insert the 

clause at 3452.247–70 (Foreign travel) in 

all solicitations and resultant costreimbursement contracts. 

SUBCHAPTER H—CLAUSES AND FORMS 

PART 3452—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

Subpart 3452.2—Text of Provisions and 

Clauses 

Sec. 

3452.201–70 Contracting Officer’s 

Representative (COR). 

3452.202–1 Definitions—Department of 

Education. 

3452.208–71 Printing. 

3452.208–72 Paperwork Reduction Act. 

3452.209–70 Conflict of interest 

certification. 

3452.209–71 Conflict of interest 

3452.215–70 Release of restricted data. 

3452.216–70 Additional cost principles. 

3452.216–71 Award-Term. 

3452.224–70 Release of information under 

the Freedom of Information Act. 

3452.224–71 Notice about research 

activities involving human subjects. 

3452.224–72 Research activities involving 

human subjects. 

3452.227–70 Publication and publicity. 

3452.227–71 Advertising of awards. 

3452.227–72 Use and non-disclosure 

agreement. 

3452.227–73 Limitations on the use or 

disclosure of Government-furnished 

information marked with restrictive 

legends. 

3452.228–70 Required insurance. 

3452.232–70 Limitation of cost or funds. 

3452.232–71 Incremental funding. 

3452.237–70 Services of consultants. 

3452.237–71 Observance of administrative 

closures. 

3452.239–70 Internet protocol version 6 

(IPv6). 

3452.239–71 Notice to offerors of 

Department security requirements. 

3452.239–72 Department security 

requirements. 

3452.239–73 Federal desktop core 

configuration (FDCC) compatibility. 

3452.242–70 Litigation and claims. 

3452.242–71 Notice to the government of 

delays. 

3452.242–73 Accessibility of meetings, 

conferences, and seminars to persons 

with disabilities. 

3452.243–70 Key personnel. 

3452.247–70 Foreign travel. 

Authority: 5 U.S.C. 301. 

Subpart 3452.2—Text of Provisions 

and Clauses 

3452.201–70 Contracting Officer’s 

Representative (COR). 

As prescribed in 3401.670–3, insert a 

clause substantially the same as: 

CONTRACTING OFFICER′S 

REPRESENTATIVE (COR) (XXXX 2010) 

(a) The Contracting Officer’s 

Representative (COR) is responsible for the 

technical aspects of the project, technical 

liaison with the contractor, and any other 

responsibilities that are specified in the 

contract. These responsibilities include 

inspecting all deliverables, including reports, 

and recommending acceptance or rejection to 

the contracting officer. 

(b) The COR is not authorized to make any 

commitments or otherwise obligate the 

Government or authorize any changes that 

affect the contract price, terms, or conditions. 

Any contractor requests for changes shall be 

submitted in writing directly to the 

contracting officer or through the COR. No 

such changes shall be made without the 

written authorization of the contracting 

officer. 

(c) The COR’s name and contact 

information: 

(d) The COR may be changed by the 

Government at any time, but notification of 

the change, including the name and address 

of the successor COR, will be provided to the 

contractor by the contracting officer in 

writing. 

(End of Clause) 

3452.202–1 Definitions—Department of 

Education. 

As prescribed in 3402.201, insert the 

following clause in solicitations and 

contracts in which the clause at FAR 

52.202–1 is required. 

DEFINITIONS—DEPARTMENT OF 

EDUCATION (XXXX 2010) 

(a) The definitions at FAR 2.101 are 

appended with those contained in Education 

Department Acquisition Regulations (EDAR) 

3402.101. 

(b) The EDAR is available via the Internet 

at http://www.ed.gov/policy/fund/reg/ 

clibrary/edar.html. 

(End of Clause) 

3452.208–71 Printing. 

As prescribed in 3408.870, insert the 

following clause in all solicitations and 

contracts other than purchase orders: 

PRINTING (XXXX 2010) 

Unless otherwise specified in this contract, 

the contractor shall not engage in, nor 

subcontract for, any printing (as that term is 

defined in Title I of the Government Printing 

and Binding Regulations in effect on the 

effective date of this contract) in connection 

with the performance of work under this 

contract; except that performance involving 

the duplication of fewer than 5,000 units of 

any one page, or fewer than 25,000 units in 

the aggregate of multiple pages, shall not be 

deemed to be printing. A unit is defined as 

one side of one sheet, one color only (with 

black counting as a color), with a maximum 

image size of 103⁄4 by 141⁄4 inches on a 

maximum paper size of 11 by 17 inches. 

Examples of counting the number of units: 

black plus one additional color on one side 

of one page counts as two units. Three colors 

(including black) on two sides of one page 

count as six units. 

(End of Clause) 

3452.208–72 Paperwork Reduction Act. 

As prescribed in 3408.871, insert the 

following clause in all relevant 

solicitations and contracts: 

PAPERWORK REDUCTION ACT 

(XXXX 2010) 

(a) The Paperwork Reduction Act of 1980 

(Pub. L. 96–511) applies to contractors that 

collect information for use or disclosure by 

the Federal Government. If the contractor 

will collect information requiring answers to 

identical questions from 10 or more people, 

no plan, questionnaire, interview guide, or 

other similar device for collecting 

information may be used without first 

obtaining clearance from the Chief 

Acquisition Officer (CAO) or the CAO’s 

designee within the Department of Education 

(ED) and the Office of Management and 

Budget (OMB). Contractors and Contracting 

Officers’ Representatives shall be guided by 

the provisions of 5 CFR part 1320, 

Controlling Paperwork Burdens on the 

Public, and should seek the advice of the 

Department’s Paperwork Clearance Officer to 

determine the procedures for acquiring CAO 

and OMB clearance. 

(b) The contractor shall obtain the required 

clearances through the Contracting Officer’s 

Representative before expending any funds 

or making public contacts for the collection 

of information described in paragraph (a) of 

this clause. The authority to expend funds 

and proceed with the collection shall be in 

writing by the contracting officer. The 

contractor must plan at least 120 days for 

CAO and OMB clearance. Excessive delay 

caused by the Government that arises out of 

causes beyond the control and without the 

fault or negligence of the contractor will be 

considered in accordance with the Excusable 

Delays or Default clause of this contract. 

(End of Clause) 

3452.209–70 Conflict of interest 

certification. 

As prescribed in 3409.507–1, insert 

the following provision in all 

solicitations anticipated to result in 

contract actions for services above the 

simplified acquisition threshold: 

CONFLICT OF INTEREST 

CERTIFICATION (XXXX 2010) 

(a)(1) The contractor, subcontractor, 

employee, or consultant, by signing the form 

in this clause, certifies that, to the best of 

their knowledge and belief, there are no 

relevant facts or circumstances that could 

give rise to an organizational or personal 

conflict of interest, (see FAR Subpart 9.5 for 

organizational conflicts of interest) (or 

apparent conflict of interest), for the 

organization or any of its staff, and that the 

contractor, subcontractor, employee, or 

consultant has disclosed all such relevant 


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information if such a conflict of interest 

appears to exist to a reasonable person with 

knowledge of the relevant facts (or if such a 

person would question the impartiality of the 

contractor, subcontractor, employee, or 

consultant). Conflicts may arise in the 

following situations: 

(i) Unequal access to information. A 

potential contractor, subcontractor, 

employee, or consultant has access to nonpublic information through its performance 

on a government contract. 

(ii) Biased ground rules. A potential 

contractor, subcontractor, employee, or 

consultant has worked, in one government 

contract, or program, on the basic structure 

or ground rules of another government 

contract. 

(iii) Impaired objectivity. A potential 

contractor, subcontractor, employee, or 

consultant, or member of their immediate 

family (spouse, parent, or child) has financial 

or other interests that would impair, or give 

the appearance of impairing, impartial 

judgment in the evaluation of government 

programs, in offering advice or 

recommendations to the government, or in 

providing technical assistance or other 

services to recipients of Federal funds as part 

of its contractual responsibility. ‘‘Impaired 

objectivity’’ includes but is not limited to the 

following situations that would cause a 

reasonable person with knowledge of the 

relevant facts to question a person’s 

objectivity: 

(A) Financial interests or reasonably 

foreseeable financial interests in or in 

connection with products, property, or 

services that may be purchased by an 

educational agency, a person, organization, 

or institution in the course of implementing 

any program administered by the 

Department; 

(B) Significant connections to teaching 

methodologies or approaches that might 

require or encourage the use of specific 

products, property, or services; or 

(C) Significant identification with 

pedagogical or philosophical viewpoints that 

might require or encourage the use of a 

specific curriculum, specific products, 

property, or services. 

(2) Offerors must provide the disclosure 

described above on any actual or potential 

conflict of interest (or apparent conflict of 

interest) regardless of their opinion that such 

a conflict or potential conflict (or apparent 

conflict of interest) would not impair their 

objectivity. 

(3) In a case in which an actual or potential 

conflict (or apparent conflict of interest) is 

disclosed, the Department will take 

appropriate actions to eliminate or address 

the actual or potential conflict, including but 

not limited to mitigating or neutralizing the 

conflict, when appropriate, through such 

means as ensuring a balance of views, 

disclosure with the appropriate disclaimers, 

or by restricting or modifying the work to be 

performed to avoid or reduce the conflict. In 

this clause, the term ‘‘potential conflict’’ 

means reasonably foreseeable conflict of 

interest. 

(b) The contractor, subcontractor, 

employee, or consultant agrees that if 

‘‘impaired objectivity’’, or an actual or 

potential conflict of interest (or apparent 

conflict of interest) is discovered after the 

award is made, it will make a full disclosure 

in writing to the contracting officer. This 

disclosure shall include a description of 

actions that the contractor has taken or 

proposes to take to avoid, mitigate, or 

neutralize the actual or potential conflict (or 

apparent conflict of interest). 

(c) Remedies. The Government may 

terminate this contract for convenience, in 

whole or in part, if it deems such termination 

necessary to avoid the appearance of a 

conflict of interest. If the contractor was 

aware of a potential conflict of interest prior 

to award or discovered an actual or potential 

conflict after award and did not disclose or 

misrepresented relevant information to the 

contracting officer, the Government may 

terminate the contract for default, or pursue 

such other remedies as may be permitted by 

law or this contract. These remedies include 

imprisonment for up to five years for 

violation of 18 U.S.C. 1001 and fines of up 

to $5000 for violation of 31 U.S.C. 3802. 

Further remedies include suspension or 

debarment from contracting with the Federal 

government. The contractor may also be 

required to reimburse the Department for 

costs the Department incurs arising from 

activities related to conflicts of interest. An 

example of such costs would be those 

incurred in processing Freedom of 

Information Act requests related to a conflict 

of interest. 

(d) In cases where remedies short of 

termination have been applied, the 

contractor, subcontractor, employee, or 

consultant agrees to eliminate the 

organizational conflict of interest, or mitigate 

it to the satisfaction of the contracting officer. 

(e) The contractor further agrees to insert 

in any subcontract or consultant agreement 

hereunder, provisions that conform 

substantially to the language of this clause, 

including specific mention of potential 

remedies and this paragraph (e). 

(f) Conflict of Interest Certification. The 

offeror, [insert name of offeror], hereby 

certifies that, to the best of their knowledge 

and belief, there are no present or currently 

planned interests (financial, contractual, 

organizational, or otherwise) relating to the 

work to be performed under the contract or 

task order resulting from Request for 

Proposal No. [insert number] that would 

create any actual or potential conflict of 

interest (or apparent conflicts of interest) 

(including conflicts of interest for immediate 

family members: spouses, parents, children) 

that would impinge on its ability to render 

impartial, technically sound, and objective 

assistance or advice or result in it being given 

an unfair competitive advantage. In this 

clause, the term ‘‘potential conflict’’ means 

reasonably foreseeable conflict of interest. 

The offeror further certifies that it has and 

will continue to exercise due diligence in 

identifying and removing or mitigating, to the 

Government’s satisfaction, such conflict of 

interest (or apparent conflict of interest). 

Offeror’s Name lllllllllllll

RFP/Contract No. llllllllllll

Signature llllllllllllllll

Title llllllllllllllllll

Date llllllllllllllllll

(End of Clause) 

3452.209–71 Conflict of interest. 

As prescribed in 3409.507–2, insert 

the following clause in all contracts for 

services above the simplified 

acquisition threshold: 

CONFLICT OF INTEREST (XXXX 2010) 

(a)(1) The contractor, subcontractor, 

employee, or consultant, has certified that, to 

the best of their knowledge and belief, there 

are no relevant facts or circumstances that 

could give rise to an organizational or 

personal conflict of interest, (see FAR 

Subpart 9.5 for organizational conflicts of 

interest), (or apparent conflict of interest) for 

the organization or any of its staff, and that 

the contractor, subcontractor, employee, or 

consultant has disclosed all such relevant 

information if such a conflict of interest 

appears to exist to a reasonable person with 

knowledge of the relevant facts (or if such a 

person would question the impartiality of the 

contractor, subcontractor, employee, or 

consultant). Conflicts may arise in the 

following situations: 

(i) Unequal access to information—A 

potential contractor, subcontractor, 

employee, or consultant has access to nonpublic information through its performance 

on a government contract. 

(ii) Biased ground rules—A potential 

contractor, subcontractor, employee, or 

consultant has worked, in one government 

contract, or program, on the basic structure 

or ground rules of another government 

contract. 

(iii) Impaired objectivity—A potential 

contractor, subcontractor, employee, or 

consultant, or member of their immediate 

family (spouse, parent, or child) has financial 

or other interests that would impair, or give 

the appearance of impairing, impartial 

judgment in the evaluation of government 

programs, in offering advice or 

recommendations to the government, or in 

providing technical assistance or other 

services to recipients of Federal funds as part 

of its contractual responsibility. ‘‘Impaired 

objectivity’’ includes but is not limited to the 

following situations that would cause a 

reasonable person with knowledge of the 

relevant facts to question a person’s 

objectivity: 

(A) Financial interests or reasonably 

foreseeable financial interests in or in 

connection with products, property, or 

services that may be purchased by an 

educational agency, a person, organization, 

or institution in the course of implementing 

any program administered by the 

Department; 

(B) Significant connections to teaching 

methodologies that might require or 

encourage the use of specific products, 

property, or services; or 

(C) Significant identification with 

pedagogical or philosophical viewpoints that 

might require or encourage the use of a 

specific curriculum, specific products, 

property, or services. 

(2) Offerors must provide the disclosure 

described above on any actual or potential 


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conflict (or apparent conflict of interest) of 

interest regardless of their opinion that such 

a conflict or potential conflict (or apparent 

conflict of interest) would not impair their 

objectivity. 

(3) In a case in which an actual or potential 

conflict (or apparent conflict of interest) is 

disclosed, the Department will take 

appropriate actions to eliminate or address 

the actual or potential conflict (or apparent 

conflict of interest), including but not limited 

to mitigating or neutralizing the conflict, 

when appropriate, through such means as 

ensuring a balance of views, disclosure with 

the appropriate disclaimers, or by restricting 

or modifying the work to be performed to 

avoid or reduce the conflict. In this clause, 

the term ‘‘potential conflict’’ means 

reasonably foreseeable conflict of interest. 

(b) The contractor, subcontractor, 

employee, or consultant agrees that if 

‘‘impaired objectivity’’, or an actual or 

potential conflict of interest (or apparent 

conflict of interest) is discovered after the 

award is made, it will make a full disclosure 

in writing to the contracting officer. This 

disclosure shall include a description of 

actions that the contractor has taken or 

proposes to take, after consultation with the 

contracting officer, to avoid, mitigate, or 

neutralize the actual or potential conflict (or 

apparent conflict of interest). 

(c) Remedies. The Government may 

terminate this contract for convenience, in 

whole or in part, if it deems such termination 

necessary to avoid the appearance of a 

conflict of interest. If the contractor was 

aware of a potential conflict of interest prior 

to award or discovered an actual or potential 

conflict (or apparent conflict of interest) after 

award and did not disclose or misrepresented 

relevant information to the contracting 

officer, the Government may terminate the 

contract for default, or pursue such other 

remedies as may be permitted by law or this 

contract. These remedies include 

imprisonment for up to five years for 

violation of 18 U.S.C. 1001 and fines of up 

to $5000 for violation of 31 U.S.C. 3802. 

Further remedies include suspension or 

debarment from contracting with the Federal 

government. The contractor may also be 

required to reimburse the Department for 

costs the Department incurs arising from 

activities related to conflicts of interest. An 

example of such costs would be those 

incurred in processing Freedom of 

Information Act requests related to a conflict 

of interest. 

(d) In cases where remedies short of 

termination have been applied, the 

contractor, subcontractor, employee, or 

consultant agrees to eliminate the 

organizational conflict of interest, or mitigate 

it to the satisfaction of the Contracting 

Officer. 

(e) The contractor further agrees to insert 

in any subcontract or consultant agreement 

hereunder, provisions that conform 

substantially to the language of this clause, 

including specific mention of potential 

remedies and this paragraph (e). 

(End of Clause) 

3452.215–70 Release of restricted data. 

As prescribed in 3415.209, insert the 

following provision in solicitations: 

RELEASE OF RESTRICTED DATA 

(XXXXX 2010) 

(a) Offerors are hereby put on notice that 

regardless of their use of the legend set forth 

in FAR 52.215–1(e), Restriction on Disclosure 

and Use of Data, the Government may be 

required to release certain data contained in 

the proposal in response to a request for the 

data under the Freedom of Information Act 

(FOIA). The Government’s determination to 

withhold or disclose a record will be based 

upon the particular circumstance involving 

the data in question and whether the data 

may be exempted from disclosure under 

FOIA. In accordance with Executive Order 

12600 and to the extent permitted by law, the 

Government will notify the offeror before it 

releases restricted data. 

(b) By submitting a proposal or quotation 

in response to this solicitation: 

(1) The offeror acknowledges that the 

Department may not be able to withhold nor 

deny access to data requested pursuant to 

FOIA and that the Government’s FOIA 

officials shall make that determination; 

(2) The offeror agrees that the Government 

is not liable for disclosure if the Department 

has determined that disclosure is required by 

FOIA; 

(3) The offeror acknowledges that 

proposals not resulting in a contract remain 

subject to FOIA; and 

(4) The offeror agrees that the Government 

is not liable for disclosure or use of 

unmarked data and may use or disclose the 

data for any purpose, including the release of 

the information pursuant to requests under 

FOIA. 

(c) Offerors are cautioned that the 

Government reserves the right to reject any 

proposal submitted with: 

(1) A restrictive legend or statement 

differing in substance from the one required 

by the solicitation provision in FAR 52.215– 

1(e), Restriction on Disclosure and Use of 

Data, or 

(2) A statement taking exceptions to the 

terms of paragraphs (a) or (b) of this 

provision. 

(End of Provision) 

3452.216–70 Additional cost principles. 

Insert the following clause in 

solicitations and contracts as prescribed 

in 3416.307(b): 

ADDITIONAL COST PRINCIPLES 

(AUG 1987) 

(a) Bid and Proposal Costs. Bid and 

proposal costs are the immediate costs of 

preparing bids, proposals, and applications 

for potential Federal and non-Federal grants, 

contracts, and other agreements, including 

the development of scientific, cost, and other 

data needed to support the bids, proposals, 

and applications. Bid and proposal costs of 

the current accounting period are allowable 

as indirect costs; bid and proposal costs of 

past accounting periods are unallowable as 

costs of the current period. However, if the 

organization’s established practice is to treat 

these costs by some other method, they may 

be accepted if they are found to be reasonable 

and equitable. Bid and proposal costs do not 

include independent research and 

development costs or pre-award costs. 

(b) Independent research and development 

costs. Independent research and 

development is research and development 

that is not sponsored by Federal and nonFederal grants, contracts, or other 

agreements. Independent research and 

development shall be allocated its 

proportionate share of indirect costs on the 

same basis as the allocations of indirect costs 

of sponsored research and development. The 

costs of independent research and 

development, including its proportionate 

share of indirect costs, are unallowable. 

(End of Clause) 

3452.216–71 Award-term. 

As prescribed in 3416.470, insert a 

clause substantially the same as the 

following in all solicitations and 

contracts where an award-term 

arrangement is anticipated: 

AWARD-TERM (XXXX 2010) 

(a) The initial [insert initial contract term] 

contract term or ordering period may be 

extended or reduced on the basis of 

contractor performance, resulting in a 

contract term or an ordering period lasting at 

least [insert minimum contract term] years 

from the date of contract award, to a 

maximum of [insert maximum contract term] 

years after the date of contract award. 

(b) The contractor’s performance will be 

measured against stated standards by the 

performance monitors, who will report their 

findings to the Award Term Determining 

Official (or Board). 

(c) Bilateral changes may be made to the 

award-term plan at any time. If agreement 

cannot be made within 60 days, the 

Government reserves the right to make 

unilateral changes prior to the start of an 

award-term period. 

(d) The contractor will submit a brief 

written self-evaluation of its performance 

within X days after the end of the evaluation 

period. The self-evaluation report shall not 

exceed seven pages, and it may be considered 

in the Award Term Review Board’s (ATRB’s) 

(or Term Determining Official’s) evaluation 

of the contractor’s performance during this 

period. 

(e) The contract term or ordering period 

may be unilaterally modified to reflect the 

ATRB’s decision. If the contract term or 

ordering period has one year remaining, the 

operation of the contract award-term feature 

will cease and the contract term or ordering 

period will not extend beyond the maximum 

term stated in the contract. 

(f) Award terms that have not begun may 

be cancelled (rather than terminated), should 

the need for the items or services no longer 

exists. No equitable adjustments to the 

contract price are applicable, as this is not 

the same procedure as a termination for 

convenience. 

(g) The decisions made by the ATRB or 

Term Determining Official may be made 


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unilaterally. Alternate Dispute Resolution 

procedures shall be utilized when 

appropriate. 

(End of Clause) 

3452.224–70 Release of information under 

the Freedom of Information Act. 

As prescribed in 3424.203, insert the 

following clause in solicitations and 

contracts. 

RELEASE OF INFORMATION UNDER 

THE FREEDOM OF INFORMATION 

ACT (XXXX 2010) 

By entering into a contract with the 

Department of Education, the contractor, 

without regard to proprietary markings, 

approves the release of the entire contract 

and all related modifications and task orders 

including, but not limited to: 

(1) Unit prices, including labor rates; 

(2) Statements of Work/Performance Work 

Statements generated by the contractor; 

(3) Performance requirements, including 

incentives, performance standards, quality 

levels, and service level agreements; 

(4) Reports, deliverables, and work 

products delivered in performance of the 

contract (including quality of service, 

performance against requirements/standards/ 

service level agreements); 

(5) Any and all information, data, software, 

and related documentation first provided 

under the contract; 

(6) Proposals or portions of proposals 

incorporated by reference; and 

(7) Other terms and conditions. 

(End of Clause) 

3452.224–71 Notice about research 

activities involving human subjects. 

As prescribed in 3424.170, insert the 

following provision in any solicitation 

where a resultant contract will include, 

or is likely to include, research activities 

involving human subjects covered 

under 34 CFR part 97: 

NOTICE ABOUT RESEARCH 

ACTIVITIES INVOLVING HUMAN 

SUBJECTS (XXXX 2010) 

(a) Applicable Regulations. In accordance 

with Department of Education regulations on 

the protection of human subjects, title 34, 

Code of Federal Regulations, part 97 (‘‘the 

regulations’’), the contractor, any 

subcontractors, and any other entities 

engaged in covered (nonexempt) research 

activities are required to establish and 

maintain procedures for the protection of 

human subjects. 

(b) Definitions. (1) The regulations define 

research as ‘‘a systematic investigation, 

including research development, testing and 

evaluation, designed to develop or contribute 

to generalizable knowledge.’’ (34 CFR 

97.102(d)). If an activity follows a deliberate 

plan designed to develop or contribute to 

generalizable knowledge, it is research. 

Research includes activities that meet this 

definition, whether or not they are conducted 

under a program considered research for 

other purposes. For example, some 

demonstration and service programs may 

include research activities. 

(2) The regulations define a human subject 

as a living individual about whom an 

investigator (whether professional or student) 

conducting research obtains data through 

intervention or interaction with the 

individual, or obtains identifiable private 

information. (34 CFR 97.102(f)). The 

definition of a human subject is met if an 

activity involves obtaining— 

(i) Information about a living person by— 

(A) Manipulating that person’s 

environment, as might occur when a new 

instructional technique is tested; or 

(B) Communicating or interacting with the 

individual, as occurs with surveys and 

interviews; or 

(ii) Private information about a living 

person in such a way that the information 

can be linked to that individual (the identity 

of the subject is or may be readily determined 

by the investigator or associated with the 

information). Private information includes 

information about behavior that occurs in a 

context in which an individual can 

reasonably expect that no observation or 

recording is taking place, and information 

that has been provided for specific purposes 

by an individual and that an individual can 

reasonably expect will not be made public 

(for example, a school health record). 

(c) Exemptions. The regulations provide 

exemptions from coverage for activities in 

which the only involvement of human 

subjects will be in one or more of the 

categories set forth in 34 CFR 97.101(b)(1)– 

(6). However, if the research subjects are 

children, the exemption at 34 CFR 

97.101(b)(2) (i.e., research involving the use 

of educational tests, survey procedures, 

interview procedures or observation of public 

behavior) is modified by 34 CFR 97.401(b), as 

explained in paragraph (d) of this provision. 

Research studies that are conducted under a 

Federal statute that requires without 

exception that the confidentiality of the 

personally identifiable information will be 

maintained throughout the research and 

thereafter, e.g., the Institute of Education 

Sciences confidentiality statute, 20 U.S.C. 

9573, are exempt under 34 CFR 

97.101(b)(3)(ii). 

(d) Children as research subjects. 

Paragraph (a) of 34 CFR 97.402 of the 

regulations defines children as ‘‘persons who 

have not attained the legal age for consent to 

treatments or procedures involved in the 

research, under the applicable law of the 

jurisdiction in which the research will be 

conducted.’’ Paragraph (b) of 34 CFR 97.401 

of the regulations provides that, if the 

research involves children as subjects— 

(1) The exemption at 34 CFR 97.101(b)(2) 

does not apply to activities involving— 

(i) Survey or interview procedures 

involving children as subjects; or 

(ii) Observations of public behavior of 

children in which the investigator or 

investigators will participate in the activities 

being observed. 

(2) The exemption at 34 CFR 97.101(b)(2) 

continues to apply, unmodified by 34 CFR 

97.401(b), to— 

(i) Educational tests; and 

(ii) Observations of public behavior in 

which the investigator or investigators will 

not participate in the activities being 

observed. 

(e) Proposal Instructions. An offeror 

proposing to do research that involves 

human subjects must provide information to 

the Department on the proposed exempt and 

nonexempt research activities. The offeror 

should submit this information as an 

attachment to its technical proposal. No 

specific page limitation applies to this 

requirement, but the offeror should be brief 

and to the point. 

(1) For exempt research activities involving 

human subjects, the offeror should identify 

the exemption(s) that applies and provide 

sufficient information to allow the 

Department to determine that the designated 

exemption(s) is appropriate. Normally, the 

narrative on the exemption(s) can be 

provided in one paragraph. 

(2) For nonexempt research activities 

involving human subjects, the offeror must 

cover the following seven points in the 

information it provides to the Department: 

(i) Human subjects’ involvement and 

characteristics: Describe the characteristics of 

the subject population, including their 

anticipated number, age range, and health 

status. Identify the criteria for inclusion or 

exclusion of any subpopulation. Explain the 

rationale for the involvement of special 

classes of subjects, such as children, children 

with disabilities, adults with disabilities, 

persons with mental disabilities, pregnant 

women, institutionalized individuals, or 

others who are likely to be vulnerable. 

(ii) Sources of materials: Identify the 

sources of research material obtained from or 

about individually identifiable living human 

subjects in the form of specimens, records, or 

data. 

(iii) Recruitment and informed consent: 

Describe plans for the recruitment of subjects 

and the consent procedures to be followed. 

(iv) Potential risks: Describe potential risks 

(physical, psychological, social, financial, 

legal, or other) and assess their likelihood 

and seriousness. Where appropriate, discuss 

alternative treatments and procedures that 

might be advantageous to the subjects. 

(v) Protection against risk: Describe the 

procedures for protecting against or 

minimizing potential risks, including risks to 

confidentiality, and assess their likely 

effectiveness. Where appropriate, discuss 

provisions for ensuring necessary medical or 

professional intervention in the event of 

adverse effects to the subjects. Also, where 

appropriate, describe the provisions for 

monitoring the data collected to ensure the 

safety of the subjects. 

(vi) Importance of knowledge to be gained: 

Discuss why the risks to the subjects are 

reasonable in relation to the importance of 

the knowledge that may reasonably be 

expected to result. 

(vii) Collaborating sites: If research 

involving human subjects will take place at 

collaborating site(s), name the sites and 

briefly describe their involvement or role in 

the research. Normally, the seven-point 

narrative can be provided in two pages or 

less. 

(3) If a reasonable potential exists that a 

need to conduct research involving human 

subjects may be identified after award of the 


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contract and the offeror’s proposal contains 

no definite plans for such research, the 

offeror should briefly describe the 

circumstances and nature of the potential 

research involving human subjects. 

(f) Assurances and Certifications. (1) In 

accordance with the regulations and the 

terms of this provision, all contractors and 

subcontractors that will be engaged in 

covered human subjects research activities 

shall be required to comply with the 

requirements for Assurances and 

Institutional Review Board approvals, as set 

forth in the contract clause 3452.224–72 

(Research activities involving human 

subjects). 

(2) The contracting officer reserves the 

right to require that the offeror have or apply 

for the assurance and provide documentation 

of IRB approval of the research prior to 

award. 

(g) (1) The regulations, and related 

information on the protection of human 

research subjects, can be found on the 

Department’s protection of human subjects in 

research Web site: http://www.ed.gov/about/ 

offices/list/ocfo/humansub.html. 

(2) Offerors may also contact the following 

office to obtain information about the 

regulations for the protection of human 

subjects and related policies and guidelines: 

U.S. Department of Education, Office of the 

Chief Financial Officer, Financial 

Management Operations, 400 Maryland 

Avenue, SW., Washington, DC 20202– 

4331, Telephone: (202) 260–3353. 

(End of Provision) 

3452.224–72 Research activities involving 

human subjects. 

As prescribed in 3424.170, insert the 

following clause in any contract that 

includes research activities involving 

human subjects covered under 34 CFR 

part 97: 

RESEARCH ACTIVITIES INVOLVING 

HUMAN SUBJECTS (XXXX 2010) 

(a) In accordance with Department of 

Education regulations on the protection of 

human subjects in research, title 34, Code of 

Federal Regulations, part 97 (‘‘the 

regulations’’), the contractor, any 

subcontractors, and any other entities 

engaged in covered (nonexempt) research 

activities are required to establish and 

maintain procedures for the protection of 

human subjects. The definitions in 34 CFR 

97.102 apply to this clause. As used in this 

clause, covered research means research 

involving human subjects that is not exempt 

under 34 CFR 97.101(b) and 97.401(b). 

(b) If ED determines that proposed research 

activities involving human subjects are 

covered (i.e., not exempt under the 

regulations), the contracting officer or 

contacting officer’s designee will require the 

contractor to apply for the Federal Wide 

Assurance from the Office for Human 

Research Protections, U.S. Department of 

Health and Human Services, if the contractor 

does not already have one on file. The 

contracting officer will also require that the 

contractor obtain and send to the Department 

documentation of Institutional Review Board 

(IRB) review and approval of the research. 

(c) In accordance with 34 CFR part 97, all 

subcontractors and any legally separate entity 

(neither owned nor operated by the 

contractor) that will be engaged in covered 

research activities under or related to this 

contract shall be required to comply with the 

requirements for assurances and IRB 

approvals. The contractor must include the 

substance of this clause, including paragraph 

(c) of this clause, in all subcontracts, and 

must notify any other entities engaged in the 

covered research activities of their 

responsibility to comply with the regulations. 

(d) Under no condition shall the contractor 

conduct, or allow to be conducted, any 

covered research activity involving human 

subjects prior to the Department’s receipt of 

the certification that the research has been 

reviewed and approved by the IRB. (34 CFR 

97.103(f)). No covered research involving 

human subjects shall be initiated under this 

contract until the contractor has provided the 

contracting officer (or the contracting 

officer’s designee) a properly completed 

certification form certifying IRB review and 

approval of the research activity, and the 

contracting officer or designee has received 

the certification. This restriction applies to 

the activities of each participating entity. 

(e) In accordance with 34 CFR 97.109(e), an 

IRB must conduct continuing reviews of 

covered research activities at intervals 

appropriate to the degree of risk, but not less 

than once a year. Covered research activities 

that are expected to last one year or more are 

therefore subject to review by an IRB at least 

once a year. 

(1) For each covered activity under this 

contract that requires continuing review, the 

contractor shall submit an annual written 

representation to the contracting officer (or 

the contracting officer’s designee) stating 

whether covered research activities have 

been reviewed and approved by an IRB 

within the previous 12 months. The 

contractor may use the form titled ‘‘Protection 

of Human Subjects: Assurance Identification/ 

Certification/Declaration of Exemption’’ for 

this representation. For multi-institutional 

projects, the contractor shall provide this 

information on its behalf and on behalf of 

any other entity engaged in covered research 

activities for which continuing IRB reviews 

are required. 

(2) If the IRB disapproves, suspends, 

terminates, or requires modification of any 

covered research activities under this 

contract, the contractor shall immediately 

notify the contracting officer in writing of the 

IRB’s action. 

(f) The contractor shall bear full 

responsibility for performing as safely as is 

feasible all activities under this contract 

involving the use of human subjects and for 

complying with all applicable regulations 

and requirements concerning human 

subjects. No one (neither the contractor, nor 

any subcontractor, agent, or employee of the 

contractor, nor any other person or 

organization, institution, or group of any 

kind whatsoever) involved in the 

performance of such activities shall be 

deemed to constitute an agent or employee of 

the Department of Education or of the 

Federal government with respect to such 

activities. The contractor agrees to discharge 

its obligations, duties, and undertakings and 

the work pursuant thereto, whether requiring 

professional judgment or otherwise, as an 

independent contractor without imputing 

liability on the part of the Government for the 

acts of the contractor and its employees. 

(g) Upon discovery of any noncompliance 

with any of the requirements or standards 

stated in paragraphs (b) and (c) of this clause, 

the contractor shall immediately correct the 

deficiency. If at any time during performance 

of this contract, the contracting officer 

determines, in consultation with the 

Protection of Human Subjects Coordinator, 

Office of the Chief Financial Officer, or the 

sponsoring office, that the contractor is not 

in compliance with any of the requirements 

or standards stated in paragraphs (b) and (c) 

of this clause, the contracting officer may 

immediately suspend, in whole or in part, 

work and further payments under this 

contract until the contractor corrects such 

noncompliance. Notice of the suspension 

may be communicated by telephone and 

confirmed in writing. 

(h) The Government may terminate this 

contract, in full or in part, for failure to fully 

comply with any regulation or requirement 

related to human subjects involved in 

research. Such termination may be in lieu of 

or in addition to suspension of work or 

payment. Nothing herein shall be construed 

to limit the Government’s right to terminate 

the contract for failure to fully comply with 

such requirements. 

(i) The regulations, and related information 

on the protection of human research subjects, 

can be found on the Department’s protection 

of human subjects in research Web site: 

http://ed.gov/about/offices/list/ocfo/ 

humansub.html. Contractors may also 

contact the following office to obtain 

information about the regulations for the 

protection of human subjects and related 

policies and guidelines: 

U.S. Department of Education, Office of the 

Chief Financial Officer, Financial 

Management Operations, 400 Maryland 

Avenue, SW., Washington, DC 20202– 

4331, Telephone: (202) 260–3353. 

(End of Clause) 

3452.227–70 Publication and publicity. 

As prescribed in 3427.409, insert the 

following clause in all solicitations and 

contracts other than purchase orders: 

PUBLICATION AND PUBLICITY 

(XXXX 2010) 

(a) Unless otherwise specified in this 

contract, the contractor is encouraged to 

publish and otherwise promote the results of 

its work under this contract. A copy of each 

article or work submitted by the contractor 

for publication shall be promptly sent to the 

contracting officer’s representative. The 

contractor shall also inform the 

representative when the article or work is 

published and furnish a copy in the 

published form. 

(b) The contractor shall acknowledge the 

support of the Department of Education in 

publicizing the work under this contract in 


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any medium. This acknowledgement shall 

read substantially as follows: 

‘‘This project has been funded at least in 

part with Federal funds from the U.S. 

Department of Education under contract 

number [Insert number]. The content of this 

publication does not necessarily reflect the 

views or policies of the U.S. Department of 

Education nor does mention of trade names, 

commercial products, or organizations imply 

endorsement by the U.S. Government.’’ 

(End of Clause) 

3452.227–71 Advertising of awards. 

As prescribed in 3427.409, insert the 

following clause in all solicitations and 

contracts other than purchase orders: 

ADVERTISING OF AWARDS (XXXX 

2010) 

The contractor agrees not to refer to awards 

issued by, or products or services delivered 

to, the Department of Education in 

commercial advertising in such a manner as 

to state or imply that the product or service 

provided is endorsed by the Federal 

government or is considered by the Federal 

government to be superior to other products 

or services. 

(End of Clause) 

3452.227–72 Use and non-disclosure 

agreement. 

As prescribed in 3427.409, insert the 

following clause in all contracts over the 

simplified acquisition threshold, and in 

contracts under the simplified 

acquisition threshold as appropriate: 

USE AND NON-DISCLOSURE 

AGREEMENT (XXXX 2010) 

(a) Except as provided in paragraph (b) of 

this clause, proprietary data, technical data, 

or computer software delivered to the 

Government with restrictions on use, 

modification, reproduction, release, 

performance, display, or disclosure may not 

be provided to third parties unless the 

intended recipient completes and signs the 

use and non-disclosure agreement in 

paragraph (c) of this clause prior to release 

or disclosure of the data. 

(1) The specific conditions under which an 

intended recipient will be authorized to use, 

modify, reproduce, release, perform, display, 

or disclose proprietary data or technical data 

subject to limited rights, or computer 

software subject to restricted rights must be 

stipulated in an attachment to the use and 

non-disclosure agreement. 

(2) For an intended release, disclosure, or 

authorized use of proprietary data, technical 

data, or computer software subject to special 

license rights, modify paragraph (c)(1)(iv) of 

this clause to enter the conditions, consistent 

with the license requirements, governing the 

recipient’s obligations regarding use, 

modification, reproduction, release, 

performance, display, or disclosure of the 

data or software. 

(b) The requirement for use and nondisclosure agreements does not apply to 

Government contractors that require access to 

a third party’s data or software for the 

performance of a Government contract that 

contains the 3452.227–73 clause, Limitations 

on the use or disclosure of Governmentfurnished information marked with 

restrictive legends. 

(c) The prescribed use and non-disclosure 

agreement is: 

Use and Non-Disclosure Agreement 

The undersigned, [Insert Name], an 

authorized representative of the [Insert 

Company Name], (which is hereinafter 

referred to as the ‘‘recipient’’) requests the 

Government to provide the recipient with 

proprietary data, technical data, or computer 

software (hereinafter referred to as ‘‘data’’) in 

which the Government’s use, modification, 

reproduction, release, performance, display, 

or disclosure rights are restricted. Those data 

are identified in an attachment to this 

agreement. In consideration for receiving 

such data, the recipient agrees to use the data 

strictly in accordance with this agreement. 

(1) The recipient shall— 

(i) Use, modify, reproduce, release, 

perform, display, or disclose data marked 

with Small Business Innovative Research 

(SBIR) data rights legends only for 

government purposes and shall not do so for 

any commercial purpose. The recipient shall 

not release, perform, display, or disclose 

these data, without the express written 

permission of the contractor whose name 

appears in the restrictive legend (the 

contractor), to any person other than its 

subcontractors or suppliers, or prospective 

subcontractors or suppliers, who require 

these data to submit offers for, or perform, 

contracts with the recipient. The recipient 

shall require its subcontractors or suppliers, 

or prospective subcontractors or suppliers, to 

sign a use and non-disclosure agreement 

prior to disclosing or releasing these data to 

such persons. Such an agreement must be 

consistent with the terms of this agreement. 

(ii) Use, modify, reproduce, release, 

perform, display, or disclose proprietary data 

or technical data marked with limited rights 

legends only as specified in the attachment 

to this agreement. Release, performance, 

display, or disclosure to other persons is not 

authorized unless specified in the attachment 

to this agreement or expressly permitted in 

writing by the contractor. 

(iii) Use computer software marked with 

restricted rights legends only in performance 

of contract number [insert contract 

number(s)]. The recipient shall not, for 

example, enhance, decompile, disassemble, 

or reverse engineer the software; time share; 

or use a computer program with more than 

one computer at a time. The recipient may 

not release, perform, display, or disclose 

such software to others unless expressly 

permitted in writing by the licensor whose 

name appears in the restrictive legend. 

(iv) Use, modify, reproduce, release, 

perform, display, or disclose data marked 

with special license rights legends [To be 

completed by the contracting officer. See 

paragraph (a)(2) of this clause. Omit if none 

of the data requested is marked with special 

license rights legends]. 

(2) The recipient agrees to adopt or 

establish operating procedures and physical 

security measures designed to protect these 

data from inadvertent release or disclosure to 

unauthorized third parties. 

(3) The recipient agrees to accept these 

data ‘‘as is’’ without any Government 

representation as to suitability for intended 

use or warranty whatsoever. This disclaimer 

does not affect any obligation the 

Government may have regarding data 

specified in a contract for the performance of 

that contract. 

(4) The recipient may enter into any 

agreement directly with the contractor with 

respect to the use, modification, 

reproduction, release, performance, display, 

or disclosure of these data. 

(5) The recipient agrees to indemnify and 

hold harmless the Government, its agents, 

and employees from every claim or liability, 

including attorneys fees, court costs, and 

expenses arising out of, or in any way related 

to, the misuse or unauthorized modification, 

reproduction, release, performance, display, 

or disclosure of data received from the 

Government with restrictive legends by the 

recipient or any person to whom the 

recipient has released or disclosed the data. 

(6) The recipient is executing this 

agreement for the benefit of the contractor. 

The contractor is a third party beneficiary of 

this agreement who, in addition to any other 

rights it may have, is intended to have the 

rights of direct action against the recipient or 

any other person to whom the recipient has 

released or disclosed the data, to seek 

damages from any breach of this agreement, 

or to otherwise enforce this agreement. 

(7) The recipient agrees to destroy these 

data, and all copies of the data in its 

possession, no later than 30 days after the 

date shown in paragraph (8) of this 

agreement, to have all persons to whom it 

released the data do so by that date, and to 

notify the contractor that the data have been 

destroyed. 

(8) This agreement shall be effective for the 

period commencing with the recipient’s 

execution of this agreement and ending upon 

[Insert Date]. The obligations imposed by this 

agreement shall survive the expiration or 

termination of the agreement. 

[Insert business name.] 

lllllllllllllllllllll

Recipient’s Business Name 

[Have representative sign.] 

lllllllllllllllllllll

Authorized Representative 

[Insert date.] 

lllllllllllllllllllll

Date 

[Insert name and title.] 

lllllllllllllllllllll

Representative’s Typed Name and Title 

(End of Clause) 

3452.227–73 Limitations on the use or 

disclosure of Government-furnished 

information marked with restrictive legends. 

As prescribed in 3427.409, insert the 

following clause in all contracts of third 

party vendors who require access to 

Government-furnished information 

including other contractors’ technical 

data, proprietary information, or 


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software: (COSTHA; PHMSA–2009– 

0126–0011); 

LIMITATIONS ON THE USE OR 

DISCLOSURE OF GOVERNMENTFURNISHED INFORMATION MARKED 

WITH RESTRICTIVE LEGENDS (XXXX 

2010) 

(a) For contracts under which data are to 

be produced, furnished, or acquired, the 

terms limited rights and restricted rights are 

defined in the rights in data—general clause 

(FAR 52.227–14). 

(b) Proprietary data, technical data, or 

computer software provided to the contractor 

as Government-furnished information (GFI) 

under this contract may be subject to 

restrictions on use, modification, 

reproduction, release, performance, display, 

or further disclosure. 

(1) Proprietary data with legends that serve 

to restrict disclosure or use of data. The 

contractor shall use, modify, reproduce, 

perform, or display proprietary data received 

from the Government with proprietary or 

restrictive legends only in the performance of 

this contract. The contractor shall not, 

without the express written permission of the 

party who owns the data, release, or disclose 

such data or software to any person. 

(2) GFI marked with limited or restricted 

rights legends. The contractor shall use, 

modify, reproduce, perform, or display 

technical data received from the Government 

with limited rights legends or computer 

software received with restricted rights 

legends only in the performance of this 

contract. The contractor shall not, without 

the express written permission of the party 

whose name appears in the legend, release, 

or disclose such data or software to any 

person. 

(3) GFI marked with specially negotiated 

license rights legends. The contractor shall 

use, modify, reproduce, release, perform, or 

display proprietary data, technical data, or 

computer software received from the 

Government with specially negotiated license 

legends only as permitted in the license. 

Such data or software may not be released or 

disclosed to other persons unless permitted 

by the license and, prior to release or 

disclosure, the intended recipient has 

completed the use and non-disclosure 

agreement. The contractor shall modify 

paragraph (c)(1)(iii) of the use and nondisclosure agreement (3452.227–72) to reflect 

the recipient’s obligations regarding use, 

modification, reproduction, release, 

performance, display, and disclosure of the 

data or software. 

(c) Indemnification and creation of third 

party beneficiary rights. 

(1) The contractor agrees to indemnify and 

hold harmless the Government, its agents, 

and employees from every claim or liability, 

including attorneys fees, court costs, and 

expenses, arising out of, or in any way 

related to, the misuse or unauthorized 

modification, reproduction, release, 

performance, display, or disclosure of 

proprietary data, technical data, or computer 

software received from the Government with 

restrictive legends by the contractor or any 

person to whom the contractor has released 

or disclosed such data or software. 

(2) The contractor agrees that the party 

whose name appears on the restrictive 

legend, in addition to any other rights it may 

have, is a third party beneficiary who has the 

right of direct action against the contractor, 

or any person to whom the contractor has 

released or disclosed such data or software, 

for the unauthorized duplication, release, or 

disclosure of proprietary data, technical data, 

or computer software subject to restrictive 

legends. 

(End of Clause) 

3452.228–70 Required insurance. 

As prescribed in 3428.311–2, insert 

the following clause in all solicitations 

and resultant cost-reimbursement 

contracts: 

REQUIRED INSURANCE (XXXX 2010) 

(a) The contractor shall procure and 

maintain such insurance as required by law 

or regulation, including but not limited to the 

requirements of FAR Subpart 28.3. Prior 

written approval of the contracting officer 

shall be required with respect to any 

insurance policy, the premiums for which 

the contractor proposes to treat as a direct 

cost under this contract, and with respect to 

any proposed qualified program of selfinsurance. The terms of any other insurance 

policy shall be submitted to the contracting 

officer for approval upon request. 

(b) Unless otherwise authorized in writing 

by the contracting officer, the contractor shall 

not procure or maintain for its own 

protection any insurance covering loss or 

destruction of, or damage to, Government 

property. 

(End of Clause) 

3452.232–70 Limitation of cost or funds. 

The following clause shall be inserted 

in all contracts that include a limitation 

of cost or limitation of funds clause in 

accordance with 3432.705–2: 

LIMITATION OF COST OR FUNDS 

(XXXX 2010) 

(a) Under the circumstances in FAR 

32.704(a)(1), the contractor shall submit the 

following information in writing to the 

contracting officer: 

(1) Name and address of the contractor. 

(2) Contract number and expiration date. 

(3) Contract items and amounts that will 

exceed the estimated cost of the contract or 

the limit of the funds allotted. 

(4) The elements of cost that changed from 

the original estimate (for example: labor, 

material, travel, overhead), furnished in the 

following order: 

(i) Original estimate. 

(ii) Costs incurred to date. 

(iii) Estimated cost to completion. 

(iv) Revised estimate. 

(v) Amount of adjustment. 

(5) The factors responsible for the increase. 

(6) The latest date by which funds must be 

available to the contractor to avoid delays in 

performance, work stoppage, or other 

impairments. 

(b) A fixed fee provided in a contract may 

not be changed if a cost overrun is funded. 

Changes in a fixed fee may be made only to 

reflect changes in the scope of work that 

justify an increase or decrease in the fee. 

(End of Clause) 

3452.232–71 Incremental funding. 

As prescribed in 3432.705–2, insert 

the following provision in solicitations 

if a cost-reimbursement contract using 

incremental funding is contemplated: 

INCREMENTAL FUNDING (XXXX 

2010) 

Sufficient funds are not presently available 

to cover the total cost of the complete project 

described in this solicitation. However, it is 

the Government’s intention to negotiate and 

award a contract using the incremental 

funding concepts described in the clause 

titled ‘‘Limitation of Funds’’ in FAR 52.232– 

22. Under that clause, which will be 

included in the resultant contract, initial 

funds will be obligated under the contract to 

cover an estimated base performance period. 

Additional funds are intended to be allotted 

to the contract by contract modification, up 

to and including the full estimated cost of the 

entire period of performance. This intent 

notwithstanding, the Government will not be 

obligated to reimburse the contractor for 

costs incurred in excess of the periodic 

allotments, nor will the contractor be 

obligated to perform in excess of the amount 

allotted. 

(End of Provision) 

3452.237–70 Services of consultants. 

As prescribed in 3437.270, insert the 

following clause in all solicitations and 

resultant cost-reimbursement contracts 

that do not provide services to FSA: 

SERVICES OF CONSULTANTS (XXXX 

2010) 

Except as otherwise expressly provided 

elsewhere in this contract, and 

notwithstanding the provisions of the clause 

of the contract entitled ‘‘Subcontracts’’ (FAR 

52.244–2), the prior written approval of the 

contracting officer shall be required— 

(a) If any employee of the contractor is to 

be paid as a ‘‘consultant’’ under this contract; 

and 

(b) (1) For the utilization of the services of 

any consultant under this contract exceeding 

the daily rate set forth elsewhere in this 

contract or, if no amount is set forth, $800, 

exclusive of travel costs, or if the services of 

any consultant under this contract will 

exceed 10 days in any calendar year. 

(2) If that contracting officer’s approval is 

required, the contractor shall obtain and 

furnish to the contracting officer information 

concerning the need for the consultant 

services and the reasonableness of the fee to 

be paid, including, but not limited to, 

whether fees to be paid to any consultant 

exceed the lowest fee charged by the 

consultant to others for performing 

consultant services of a similar nature. 

(End of Clause) 


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3452.237–71 Observance of administrative 

closures. 

As prescribed in 3437.170, insert the 

following clause in all solicitations and 

service contracts: 

OBSERVANCE OF ADMINISTRATIVE 

CLOSURES (XXXX 2010) 

(a) The contract schedule identifies all 

Federal holidays that are observed under this 

contract. Contractor performance is required 

under this contract at all other times, and 

compensated absences are not extended due 

to administrative closures of Government 

facilities and operations due to inclement 

weather, Presidential decree, or other 

administrative issuances where Government 

personnel receive early dismissal 

instructions. 

(b) In cases of contract performance at a 

Government facility when the facility is 

closed, the vendor may arrange for 

performance to continue during the closure 

at the contractor’s site, if appropriate. 

(End of Clause) 

3452.239–70 Internet protocol version 6 

(IPv6) 

As prescribed in 3439.701, insert the 

following clause: 

INTERNET PROTOCOL VERSION 6 

(XXXX 2010) 

(a) Any system hardware, software, 

firmware, or networked component (voice, 

video, or data) developed, procured, or 

acquired in support or performance of this 

contract shall be capable of transmitting, 

receiving, processing, forwarding, and storing 

digital information across system boundaries 

utilizing system packets that are formatted in 

accordance with commercial standards of 

Internet protocol (IP) version 6 (IPv6) as set 

forth in Internet Engineering Task Force 

(IETF) Request for Comments (RFC) 2460 and 

associated IPv6-related IETF RFC standards. 

In addition, this system shall maintain 

interoperability with IPv4 systems and 

provide at least the same level of 

performance and reliability capabilities of 

IPv4 products. 

(b) Specifically, any new IP product or 

system developed, acquired, or produced 

must— 

(1) Interoperate with both IPv6 and IPv4 

systems and products; and 

(2) Have available contractor/vendor IPv6 

technical support for development and 

implementation and fielded product 

management. 

(c) Any exceptions to the use of IPv6 

require the agency’s CIO to give advance, 

written approval. 

(End of Clause) 

3452.239–71 Notice to offerors of 

Department security requirements. 

As prescribed in 3439.702, include 

the following provision in solicitations 

when the offeror’s employees would 

have access to Department-controlled 

facilities or space, or when the work 

(wherever located) would involve the 

design, operation, repair, or 

maintenance of information systems and 

access to sensitive but unclassified 

information: 

NOTICE TO OFFERORS OF 

DEPARTMENT SECURITY 

REQUIREMENTS (XXXX 2010) 

(a) The offeror and any of its future 

subcontractors will have to comply with 

Department security policy requirements as 

set forth in the ‘‘Bidder’s Security Package: 

Security Requirements for Contractors Doing 

Business with the Department of Education’’ 

at: http://www.ed.gov/fund/contract/about/ 

bsp.html. 

(b) All contractor employees must undergo 

personnel security screening if they will be 

employed for 30 days or more, in accordance 

with Departmental Directive OM:5–101, 

‘‘Contractor Employee Personnel Security 

Screenings,’’ available at: http://www.ed.gov/ 

fund/contract/about/acs/acsom5101.doc. 

(c) The offeror shall indicate the following 

employee positions it anticipates to employ 

in performance of this contract and their 

proposed risk levels based on the guidance 

provided in Appendix I of Departmental 

Directive OM:5–101: 

High Risk (HR): [Specify HR positions.]. 

Moderate Risk (MR): [Specify MR 

positions.]. 

Low Risk (LR): [Specify LR positions.]. 

(d) In the event the Department disagrees 

with a proposed risk level assignment, the 

issue shall be subject to negotiation. 

However, if no agreement is reached, the 

Department’s risk level assignment shall be 

used. The type of screening and the timing 

of the screening will depend upon the nature 

of the contractor position, the type of data to 

be accessed, and the type of information 

technology (IT) system access required. 

Personnel security screenings will be 

commensurate with the risk and magnitude 

of harm the individual could cause. 

(End of Provision) 

3452.239–72 Department security 

requirements. 

As prescribed in 3439.702, include 

the following clause in contracts when 

the contractor’s employees will have 

access to Department-controlled 

facilities or space, or when the work 

(wherever located) would involve the 

design, operation, repair, or 

maintenance of information systems and 

access to sensitive but unclassified 

information: 

DEPARTMENT SECURITY 

REQUIREMENTS (XXXX 2010) 

(a) The contractor and its subcontractors 

shall comply with Department security 

policy requirements as set forth in the 

‘‘Bidder’s Security Package: Security 

Requirements for Contractors Doing Business 

with the Department of Education’’ at 

http://www.ed.gov/fund/contract/about/ 

bsp.html. 

(b) The following are the contractor 

employee positions required under this 

contract and their designated risk levels: 

High Risk (HR): [Specify HR positions.] 

Moderate Risk (MR): [Specify MR 

positions.] 

Low Risk (LR): [Specify LR positions.] 

(c) All contractor employees must undergo 

personnel security screening if they will be 

employed for 30 days or more, in accordance 

with Departmental Directive OM:5–101, 

‘‘Contractor Employee Personnel Security 

Screenings.’’ The type of screening and the 

timing of the screening will depend upon the 

nature of the contractor position, the type of 

data to be accessed, and the type of 

information technology (IT) system access 

required. Personnel security screenings will 

be commensurate with the risk and 

magnitude of harm the individual could 

cause. 

(d) The contractor shall— 

(1) Ensure that all non-U.S. citizen 

contractor employees are lawful permanent 

residents of the United States or have 

appropriate work authorization documents as 

required by the Department of Homeland 

Security, Bureau of Immigration and 

Appeals, to work in the United States. 

(2) Ensure that no employees are assigned 

to high risk designated positions prior to a 

completed preliminary screening. 

(3) Submit all required personnel security 

forms to the contracting officer’s 

representative (COR) within 24 hours of an 

assignment to a Department contract and 

ensure that the forms are complete. 

(4) Ensure that no contractor employee is 

placed in a higher risk position than that for 

which he or she was previously approved, 

without the approval of the Contracting 

Officer or his or her representative, the 

Department personnel security officer, and 

the computer security officer. 

(5) Ensure that all contractor employees 

occupying high-risk designated positions 

submit forms for reinvestigation every five 

years for the duration of the contract or if 

there is a break in service to a Department 

contract of 365 days or more. 

(6) Report to the COR all instances of 

individuals seeking to obtain unauthorized 

access to any departmental IT system, or 

sensitive but unclassified and/or Privacy Act 

protected information. 

(7) Report to the COR any information that 

raises an issue as to whether a contractor 

employee’s eligibility for continued 

employment or access to Department IT 

systems, or sensitive but unclassified and/or 

Privacy Act protected information, promotes 

the efficiency of the service or violates the 

public trust. 

(8) Withdraw from consideration under the 

contract any employee receiving an 

unfavorable adjudication determination. 

(9) Officially notify each contractor 

employee if he or she will no longer work on 

a Department contract. 

(10) Abide by the requirements in 

Departmental Directive OM:5–101, 

‘‘Contractor Employee Personnel Security 

Screenings.’’ 

(e) Further information including 

definitions of terms used in this clause and 

a list of required investigative forms for each 

risk designation are contained in 

Departmental Directive OM:5–101, 

‘‘Contractor Employee Personnel Security 


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51910 Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Proposed Rules 

Screenings’’ available at the Web site listed in 

the first paragraph of this clause. 

(f) Failure to comply with the contractor 

personnel security requirements may result 

in a termination of the contract for default. 

(End of Clause) 

3452.239–73 Federal desktop core 

configuration (FDCC) compatibility. 

As prescribed in 3439.703, insert the 

following clause in all solicitations and 

contracts where software will be 

developed, maintained, or operated on 

any system using the FDCC 

configuration: 

FEDERAL DESKTOP CORE 

CONFIGURATION (FDCC) 

COMPATIBILITY (XXXX 2010) 

(a) (1) The provider of information 

technology shall certify applications are fully 

functional and operate correctly as intended 

on systems using the Federal desktop core 

configuration (FDCC). This includes Internet 

Explorer 7 configured to operate on Windows 

XP and Windows Vista (in Protected Mode 

on Vista). 

(2) For the Windows XP settings, see: 

http://csrc.nist.gov/itsec/ 

guidance_WinXP.html, and for the Windows 

Vista settings, see: http://csrc.nist.gov/itsec/ 

guidance_vista.html. 

(b) The standard installation, operation, 

maintenance, update, or patching of software 

shall not alter the configuration settings from 

the approved FDCC configuration. The 

information technology should also use the 

Windows Installer Service for installation to 

the default ‘‘program files’’ directory and 

should be able to silently install and 

uninstall. 

(c) Applications designed for normal end 

users shall run in the standard user context 

without elevated system administration 

privileges. 

(End of Clause) 

3452.242–70 Litigation and claims. 

As prescribed in 3442.7001, insert the 

following clause in all solicitations and 

resultant cost-reimbursement contracts: 

LITIGATION AND CLAIMS (XXXX 

2010) 

(a) The contractor shall give the 

contracting officer immediate notice in 

writing of— 

(1) Any legal action, filed against the 

contractor arising out of the 

performance of this contract, including 

any proceeding before any 

administrative agency or court of law, 

and also including, but not limited to, 

the performance of any subcontract 

hereunder; and 

(2) Any claim against the contractor 

for cost that is allowable under the 

‘‘allowable cost and payment’’ clause. 

(b) Except as otherwise directed by 

the contracting officer, the contractor 

shall immediately furnish the 

contracting officer copies of all 

pertinent papers received under that 

action or claim. 

(c) If required by the contracting 

officer, the contractor shall— 

(1) Effect an assignment and 

subrogation in favor of the Government 

of all the contractor’s rights and claims 

(except those against the Government) 

arising out of the action or claim against 

the contractor; and 

(2) Authorize the Government to settle 

or defend the action or claim and to 

represent the contractor in, or to take 

charge of, the action. 

(d) If the settlement or defense of an 

action or claim is undertaken by the 

Government, the contractor shall 

furnish all reasonable required 

assistance. However, if an action against 

the contractor is not covered by a policy 

of insurance, the contractor shall notify 

the contracting officer and proceed with 

the defense of the action in good faith. 

(e) To the extent not in conflict with 

any applicable policy of insurance, the 

contractor may, with the contracting 

officer’s approval, settle any such action 

or claim. 

(f)(1) The Government shall not be 

liable for the expense of defending any 

action or for any costs resulting from the 

loss thereof to the extent that the 

contractor would have been 

compensated by insurance that was 

required by law, regulation, contract 

clause, or other written direction of the 

contracting officer, but that the 

contractor failed to secure through its 

own fault or negligence. 

(2) In any event, unless otherwise 

expressly provided in this contract, the 

contractor shall not be reimbursed or 

indemnified by the Government for any 

cost or expense of liability that the 

contractor may incur or be subject to by 

reason of any loss, injury, or damage, to 

the person or to real or personal 

property of any third parties as may 

arise from the performance of this 

contract. 

(End of Clause) 

3452.242–71 Notice to the Government of 

delays. 

As prescribed in 3442.7002, insert the 

following clause in all solicitations and 

contracts other than purchase orders: 

NOTICE TO THE GOVERNMENT OF 

DELAYS (XXXX 2010) 

The contractor shall notify the contracting 

officer of any actual or potential situation, 

including but not limited to labor disputes, 

that delays or threatens to delay the timely 

performance of work under this contract. The 

contractor shall immediately give written 

notice thereof, including all relevant 

information. 

(End of Clause) 

3452.242–73 Accessibility of meetings, 

conferences, and seminars to persons with 

disabilities. 

As prescribed in 3442.7101(b), insert 

the following clause in all solicitations 

and contracts: 

ACCESSIBILITY OF MEETINGS, 

CONFERENCES, AND SEMINARS TO 

PERSONS WITH DISABILITIES (XXXX 

2010) 

The contractor shall assure that any 

meeting, conference, or seminar held 

pursuant to the contract will meet all 

applicable standards for accessibility to 

persons with disabilities pursuant to section 

504 of the Rehabilitation Act of 1973, as 

amended (29 U.S.C. 794) and any 

implementing regulations of the Department. 

(End of Clause) 

3452.243–70 Key personnel. 

As prescribed in 3443.107, insert a 

clause substantially the same as the 

following in all solicitations and 

resultant cost-reimbursement contracts: 

KEY PERSONNEL (XXXX 2010) 

(a) The personnel designated as key 

personnel in this contract are considered to 

be essential to the work being performed 

hereunder. Prior to diverting any of the 

specified individuals to other programs, or 

otherwise substituting any other personnel 

for specified personnel, the contractor shall 

notify the contracting officer reasonably in 

advance and shall submit justification 

(including proposed substitutions) in 

sufficient detail to permit evaluation of the 

impact on the contract effort. No diversion or 

substitution shall be made by the contractor 

without written consent of the contracting 

officer; provided, that the contracting officer 

may ratify a diversion or substitution in 

writing and that ratification shall constitute 

the consent of the contracting officer required 

by this clause. The contract shall be modified 

to reflect the addition or deletion of key 

personnel. 

(b) The following personnel have been 

identified as Key Personnel in the 

performance of this contract: 

Labor Category Name 

[Insert category.] 

Name 

[Insert name.] 

(End of Clause) 

3452.247–70 Foreign travel. 

As prescribed in 3447.701, insert the 

following clause in all solicitations and 

resultant cost-reimbursement contracts: 

FOREIGN TRAVEL (XXXX 2010) 

Foreign travel shall not be undertaken 

without the prior written approval of the 

contracting officer. As used in this clause, 

foreign travel means travel outside the 

Continental United States, as defined in the 


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Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Proposed Rules 51911 

Federal Travel Regulation. Travel to nonforeign areas (including the States of Alaska 

and Hawaii, the Commonwealths of Puerto 

Rico, Guam and the Northern Mariana 

Islands and the territories and possessions of 

the United States) is considered ‘‘foreign 

travel’’ for the purposes of this clause. 

(End of Clause) 

[FR Doc. 2010–20198 Filed 8–20–10; 8:45 am] 

BILLING CODE 4000–01–P 


srobinson on DSKHWCL6B1PROD with PROPOSALS2