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[Federal Register Volume 76, Number 45 (Tuesday, March 8, 2011)]
[Rules and Regulations]
[Pages 12796-12815]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4660]

[[Page 12795]]

Vol. 76

Tuesday,

No. 45

March 8, 2011

Part II

Department of Education

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48 CFR Chapter 34

Department of Education Acquisition Regulation; Rule

Federal Register / Vol. 76 , No. 45 / Tuesday, March 8, 2011 / Rules 
and Regulations

[[Page 12796]]

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DEPARTMENT OF EDUCATION

48 CFR Chapter 34

RIN 1890-AA16
[Docket ID ED-2010-OCFO-0015]

Department of Education Acquisition Regulation

AGENCY: Office of the Chief Financial Officer, Department of Education 
(Department).

ACTION: Final regulations.

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SUMMARY: The Secretary reissues 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: These regulations are effective May 9, 2011.

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 in this section.

SUPPLEMENTARY INFORMATION: On August 23, 2010, the Secretary published 
a notice of proposed rulemaking (NPRM) in the Federal Register (75 FR 
51884) to reissue the Department of Education Acquisition Regulation 
(EDAR). In the preamble to the NPRM, on pages 51884 through 51891, the 
Secretary discussed how the proposed regulations would update the EDAR 
to accurately implement the current Federal Acquisition Regulation 
(FAR) and Department policies.
    After the public comment period ended, the Department's contact 
phone number for issues relating to human subjects changed, so we have 
updated this phone number in the clause at 3452.224-71, Notice about 
research activities involving human subjects, and the clause at 
3452.224-72, Research activities involving human subjects. Also, we 
discovered a discrepancy in the regulation in 3416.470 discussing Award 
Term contracting and the clause prescribed in this section, 3452.216-71 
Award-term. Therefore, we removed from 3416.470, Award-term 
contracting, the sentence, ``These decisions are not subject to the 
Disputes clause.'' We also have made some minor technical and editorial 
changes to the regulations.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, the 
Department did not receive any comments on the proposed regulations.

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 rule 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 regulatory action.
    The potential costs associated with this 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 regulatory action, we have determined that the 
benefits of this regulatory action justify the costs.
    We have determined, also, that this regulatory action does not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.

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 rule will not have a 
significant economic impact on a substantial number of small entities.
    The rule updates the EDAR; it does not directly regulate any small 
entities. As a result, a regulatory flexibility analysis is not 
required and none has been prepared.

Paperwork Reduction Act of 1995

    These 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.

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: February 23, 2011.
Arne Duncan,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
title 48 of the Code of Federal Regulations by revising chapter 34 to 
read as follows:

[[Page 12797]]

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

Sec.
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 non-appropriated 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

[[Page 12798]]

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 3416.403-70 (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 CAO. The Secretary has also 
delegated contracting authority to the 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 a 
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.

[[Page 12799]]

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.

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

[[Page 12800]]

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.

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 Two-Phase 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 advertisements 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 3417.70 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 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

    Authority: 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.

[[Page 12801]]

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.

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 and if 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) through (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.

[[Page 12802]]

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.

    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 non-
commercial items up to $1,000,000 when the acquisition is set aside for 
small businesses, pursuant to 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) through (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 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 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

[[Page 12803]]

within the limits of appropriate advance guidance set forth in FAR 
15.604; and
    d. No prior commitments were received from Departmental employees 
regarding acceptance of this proposal.

Date:
-----------------------------------------------------------------------

Organization:
-----------------------------------------------------------------------

Name:
-----------------------------------------------------------------------

Title:
-----------------------------------------------------------------------

    (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, Labor-Hour, 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 at 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 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 
pre-determined 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 
award-term 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.
    (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 award-term 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.

[[Page 12804]]

Subpart 3417.7--Modular Contracting
3417.70 Modular contracting.

    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 Federal department or 
agency.

Subpart 3417.7--Modular Contracting

3417.70  Modular contracting.

    (a) 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 set-asides.

    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 
(OSDBU).

    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 set-asides.

    (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 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 Contract 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

[[Page 12805]]

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) The contracting officer must 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) The contracting officer must 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 Act--Supplies
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 non-disclosure 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 Government-furnished 
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.

[[Page 12806]]

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.
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 cost-
reimbursement 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

[[Page 12807]]

Sec.
3447.701 Foreign travel clause.

    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 cost-reimbursement 
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) (MAR 2011)

    (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 (MAR 2011)

    (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 (MAR 2011)

    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 10\3/4\ by 14\1/
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 (MAR 2011)

    (a) The Paperwork Reduction Act of 1995 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 (MAR 2011)

    (a)(1) The contractor, subcontractor, employee, or consultant, 
by signing the form in this clause, certifies that, to the best of 
its 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

[[Page 12808]]

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 non-public 
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 its 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---------------------------------------------------------

RFP/Contract No.-------------------------------------------------------

Signature--------------------------------------------------------------

Title------------------------------------------------------------------

Date-------------------------------------------------------------------

(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 (MAR 2011)

    (a)(1) The contractor, subcontractor, employee, or consultant, 
has certified that, to the best of its 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 non-public 
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

[[Page 12809]]

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 (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 $5,000 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 (MAR 2011)

    (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 or 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 (MAR 2011)

    (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 non-Federal 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 (MAR 2011)

    (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

[[Page 12810]]

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 (MAR 2011)

    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 (MAR 2011)

    (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 in 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 in 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

[[Page 12811]]

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 Institutional Review Board (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://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: Protection of Human 
Subjects Coordinator, U.S. Department of Education, Office of the 
Chief Financial Officer, Financial Management Operations, 400 
Maryland Avenue, SW., Washington, DC 20202-4331, Telephone: (202) 
245 8090.

(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 (MAR 2011)

    (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: Protection of Human 
Subjects Coordinator, U.S. Department of Education, Office of the 
Chief Financial Officer, Financial Management Operations, 400 
Maryland Avenue, SW., Washington, DC 20202-4331, Telephone: (202) 
245-8090.

(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 (MAR 2011)

    (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

[[Page 12812]]

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 (MAR 2011)

    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 (MAR 2011)

    (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 non-disclosure 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 Government-furnished 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.]
    Recipient's Business Name
    [Have representative sign.]
    Authorized Representative
    [Insert date.]
    Date
    [Insert name and title.]
    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 software:

[[Page 12813]]

Limitations on The Use Or Disclosure of Government-Furnished 
Information Marked With Restrictive Legends (MAR 2011)

    (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 non-
disclosure 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 (MAR 2011)

    (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 self-insurance. 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 (MAR 2011)

    (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 (MAR 2011)

    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 (MAR 2011)

    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)

3452.237-71  Observance of administrative closures.

    As prescribed in 3437.170, insert the following clause in all 
solicitations and service contracts:

[[Page 12814]]

Observance of Administrative Closures (MAR 2011)

    (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 in all 
solicitations and resulting contracts for hardware and software:

Internet Protocol Version 6 (MAR 2011)

    (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 (MAR 2011)

    (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 (MAR 2011)

    (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 the COR, the 
Department personnel security officer, and the Department 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 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)

[[Page 12815]]

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 (MAR 2011)

    (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 (MAR 2011)

    (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 (MAR 2011)

    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 (MAR 2011)

    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 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:

Key Personnel (MAR 2011)

    (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.]                          [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 (MAR 2011)

    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 Federal Travel Regulation. Travel to non-foreign 
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. 2011-4660 Filed 3-7-11; 8:45 am]
BILLING CODE 4000-01-P
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