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[Federal Register Volume 77, Number 163 (Wednesday, August 22, 2012)]
[Rules and Regulations]
[Pages 50631-50637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20440]

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DEPARTMENT OF HOMELAND SECURITY

48 CFR Parts 3001, 3002, 3003, 3004, 3005, 3006, 3012, 3018, 3022, 
3023, 3033, 3035, 3036, 3042, 3045, 3052, and 3053

[Docket No. DHS-2009-0085]
RIN 1601-AA28

Homeland Security Acquisition Regulation (HSAR); Revision 
Initiative [HSAR Case 2009-002]

AGENCY: Office of the Chief Procurement Officer, DHS.

ACTION: Final rule.

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SUMMARY: DHS is issuing a final rule amending multiple sections of the 
Homeland Security Acquisition Regulation (HSAR). These amendments align 
existing content with the Federal Acquisition Regulation (FAR); 
implement Section 695 of the Post-Katrina Emergency Management Reform 
Act of 2006 by restricting the length of certain noncompetitive 
contracts entered into by the Department of Homeland Security to 
facilitate the response to or recovery from a natural disaster, act of 
terrorism, or other manmade disaster; clarify agency acquisition 
regulations; and make editorial corrections.

DATES: Effective Date: September 21, 2012.

FOR FURTHER INFORMATION CONTACT: Teresa McConahie, Office of the Chief 
Procurement Officer, Department of Homeland Security, (202) 447-0271.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Final Rule
III. Regulatory Analyses
    A. Executive Order 12866 (Regulatory Planning and Review) and 
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Executive Order 13132 (Federalism)
    E. National Environmental Policy Act

I. Background

    This final rule amends the Department's acquisition regulation 
which was initially issued in 2003. 68 FR 67871 (Dec. 4, 2003), as 
amended at 71 FR 25767 (May 2, 2006). On September 13, 2010, DHS 
published a notice of proposed rulemaking NPRM, with a public comment 
period ending on November 12, 2010. 75 FR 55529. DHS received no public 
comments on this NPRM. DHS is now adopting the proposed rule, with 
minor changes, as final.

II. Discussion of Final Rule

    In the NPRM, DHS proposed various changes to the Homeland Security 
Acquisition Regulations (HSAR), including changes to 48 CFR part 3006 
implementing section 695 of the Post-Katrina Emergency Management 
Reform Act of 2006 (PKEMRA), Public Law 109-295, 120 Stat. 1394, 1460 
(Oct. 4, 2006). This final rule implements the majority of the changes 
described in the ``Discussion of Proposed Rule'' section of the NPRM. 
See 75 FR 55530-55532.
    Additionally, as a result of further internal review, DHS is making 
several minor changes to the proposed rule in this final rule. The 
changes are administrative in nature and do not change the substance of 
the rule. The changes to the proposed rule include: (1) Adding an ``s'' 
to the word ``System'' in the phrase ``DHS Sensitive System Handbook'' 
at 3004.470-2; changing the phrase ``DHS legal counsel'' to ``legal 
counsel'' at 3003.204-(a); and correcting the citation at 3003.1003(a) 
to read ``(FAR) 48 CFR 52.203-13'' in place of ``(FAR) 49 CFR 52.203-
13''. DHS is correcting these inadvertent typographical errors to 
ensure the final rule is clear and precise.
    DHS is also making a technical change by removing the proposed 
change at (HSAR) section 3009.403 designating the DHS Heads of 
Contracting Activity as the DHS Suspension and Debarment Officials. The 
Secretary of Homeland Security has approved a new Suspension and 
Debarment program which eliminates the Heads of the Contracting 
Activities as Suspension and Debarment Officials. The change in the 
proposed rule is no longer necessary and is not included in this final 
rule.
    DHS is also correcting the title of the FEMA HCA at 3002.101 to 
read ``Director, Office of Acquisition Management (FEMA)'' in place of 
``Director, Procurement (FEMA)''. This change is necessary due to a 
change in the naming convention for this office.
    In the NPRM, DHS proposed to delete paragraph (d) of clause 
3052.216-71, Determination of Award Fee, to align the HSAR with the OMB 
guidance, Appropriate Use of Incentive Contracts (Dec. 4, 2007). This 
final rule also revises the date of the entire clause to distinguish 
the existing version of the clause from the revised version.
    The NPRM also proposed the inclusion of paragraph (k)(1) of 
3052.204-71 Alternate I regarding contractor employee access. In this 
final rule, the proposed change to paragraph (k)(1) is not included 
because a similar provision already exists at (HSAR) 3004.470-2, citing 
to the DHS Sensitive Systems Policy Directive 4300A and the DHS 4300A 
Sensitive Systems Handbook both of which address contractor employee 
access.
    Throughout this final rule, references to Title 41 of the United 
States Code have been revised to reflect the recodification of Title 41 
under Public Law 111-350, January 4, 2011.

III. Regulatory Analyses

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    This is not a significant regulatory action under Section 6(b) of 
Executive Order 12866, as supplemented by Executive Order 13563, and 
the Office of Management and Budget has not reviewed this final rule. 
This final rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the term 
``small entities'' comprises of small businesses, not for profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and government jurisdictions with populations 
of less than 50,000. DHS certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory

[[Page 50632]]

Flexibility Act because the rule applies to internal approval 
procedures, supplements the Federal Acquisition Regulations, and is 
intended to clarify or eliminate existing agency acquisition 
regulations and policies.

C. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval any reporting requirements 
inherent in a rule. The Paperwork Reduction Act applies to this final 
rule. However, the information collection requirements imposed by the 
provisions 3052.205-70 and 3052.212-70 are currently covered by the 
approved information collection requirements for provisions (OMB 
Clearance numbers 1600-0003, Post-Contract Award Information, and 1600-
0005, Solicitation of Proposal Information for Award of Public 
Contracts). DHS considers that any changes due to the use of these 
clauses will be within the estimated hours for the existing approved 
OMB clearance. The clause at 3052.203-70 does not create a new 
information collection requirement. It provides a format for 
contractors to use when making a disclosure under FAR 3.1003 and 
52.203-13. The FAR disclosure requirements are approved under OMB 
Clearance Number 9000-0164.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Use of these two 
information collections, 1600-0003 and 1600-0005, has been approved by 
OMB until January 31, 2012, and February 28, 2015, respectively. The 
extension for 1600-0003 is currently under review at OMB.

D. Executive Order 13132 (Federalism)

    This final rule will not have substantial direct effect on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, DHS has determined that this rule does not 
warrant the preparation of a federalism impact statement.

E. National Environmental Policy Act

    We have analyzed this final rule under Department of Homeland 
Security Management Directive 023-01 which guides the Department in 
complying with the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321-4370f), and have made a determination this action is one of 
a category of actions which do not individually or cumulatively have a 
significant effect on the human environment. This rule, which does not 
involve any extraordinary circumstances, is categorically excluded 
under paragraphs A3(b) and A3(d) in Table I of Appendix A of Directive 
023-01 because it implements legislation and amends acquisition 
regulations without changing the regulations' environmental effect.

List of Subjects in 48 CFR Parts 3001, 3002, 3003, 3004, 3005, 
3006, 3012, 3018, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052 
and 3053

    Government procurement.

Daniel L. Clever,
Deputy Chief Procurement Officer, Department of Homeland Security.

    Accordingly, DHS amends 48 CFR parts 3001, 3002, 3003, 3004, 3005, 
3006, 3012, 3018, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052, and 
3053 as follows:

0
1. The authority citation for 48 CFR parts 3001, 3002, 3003, 3004, 
3005, 3006, 3022, 3023, 3033, 3035, 3036, 3042, 3045, and 3053 is 
revised to read as follows:

    Authority:  5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 
CFR part 1, subpart 1.3, and DHS Delegation Number 0702.

PART 3001--FEDERAL ACQUISITION REGULATION SYSTEM

0
2. Amend Subpart 3001.1 by adding section 3001.103 to read as follows:

3001.103  Authority.

    The HSAR is issued by DHS's Chief Procurement Officer, who is the 
Senior Procurement Executive (SPE), see 41 U.S.C. 1702 and DHS 
Delegation Number 0702, under authority of 5 U.S.C. 301-302, the Office 
of Federal Procurement Policy Act, Pub. L. No. 93-400, 88 Stat. 796 
(1974), including sections 22 and 25, 41 U.S.C. 1707, 1302 and 1303, 
and (FAR) 48 CFR part 1, subpart 1.3.

0
3. Revise section 3001.105-2 to read as follows:

3001.105-2  Arrangement of regulations.

    (a) General. The HSAR, which encompasses both Department-wide and 
Component-unique guidance, conforms to the arrangement and numbering 
system prescribed by (FAR) 48 CFR 1.105-2. Guidance that is unique to a 
Component contains the organization's acronym or abbreviation directly 
following the title. The following acronyms and abbreviations apply:
    DHS Management (MGMT), including the Office of Procurement 
Operations (OPO) and the Office of Selective Acquisitions (OSA);
    Federal Emergency Management Agency (FEMA);
    Federal Law Enforcement Training Center (FLETC);
    Transportation Security Administration (TSA);
    U.S. Coast Guard (USCG);
    U.S. Customs and Border Protection (CBP);
    U.S. Immigration and Customs Enforcement (ICE); and
    U.S. Secret Service (USSS).

0
4. Revise section 3001.105-3 to read as follows:

3001.105-3  Copies.

    Official versions of the HSAR are available in the Code of Federal 
Regulations, as supplemented and revised from time to time by the 
Federal Register, both of which are available from the Government 
Printing Office in paper and electronic form. The HSAR is also 
available in electronic form at http://www.dhs.gov. A convenient but 
unofficial up-to-date version of the HSAR is also available from the 
Government Printing office at http://www.gpoaccess.gov/ecfr/index.html. 
The Homeland Security Acquisition Manual (HSAM), which complements the 
HSAR, can also be found at http://www.dhs.gov.

0
5. In section 3001.301, revise paragraph (a)(1) to read as follows:

3001.301  Policy.

    (a)(1) The HSAR is issued for Departmental guidance according to 
the policy cited in (FAR) 48 CFR 1.301. The HSAR establishes uniform 
Department of Homeland Security policies and procedures for all 
acquisition activities within the Department of Homeland Security. 
Component supplemental acquisition regulations to be inserted in the 
HSAR as a HSAR supplement regulation must be reviewed and approved by 
the Chief Procurement Officer (CPO) before the CPO authorizes and 
submits the proposed content for publication in the Federal Register 
under (FAR) 48 CFR part 1, subparts 1.3 and 1.5.
* * * * *

3001.301-70  [Amended]

0
6. Amend section 3001.301-70 in paragraph (a) introductory text by 
removing ``20598'' and adding ``20528'' in its place.

0
7. In section 3001.301-71, revise paragraph (c) to read as follows:

[[Page 50633]]

3001.301-71  Effective Date.

* * * * *
    (c) When required by law, contracting officers must modify existing 
contracts to include HSAR changes. Otherwise, and where feasible, 
contracting officers should consider using the Changes clause or other 
suitable authority, to modify existing contracts to include HSAR 
changes.

0
8. In section 3001.303, revise paragraph (a)(3) to read as follows:

3001.303  Publication and codification.

    (a) * * *
    (3) Coverage in HSAR chapter 30 that supplements the FAR will use 
part, subpart, section, and subsection numbers ending in ``70'' through 
``89''. A series of numbers beginning with ``70'' is used for 
provisions and clauses (e.g., (HSAR) 48 CFR 3001.301-70).
* * * * *

3001.304  [Amended]

0
9. Amend section 3001.304 in paragraph (a) by adding the words 
``Department of'' before the words ``Homeland Security'' in the first 
sentence.

3001.403  [Amended]

0
10. Amend section 3001.403 by removing the word ``deviation'' in the 
first sentence and adding the word ''deviations'' in its place.

3001.602-3  [Amended]

0
11. Amend section 3001.602-3 by removing the words ``Department of 
Homeland Security (DHS)'' in the first sentence and adding in their 
place ``DHS''.

PART 3002--DEFINITIONS OF WORDS AND TERMS

0
12. Amend section 3002.101 by removing the definition of ``Simplified 
acquisition threshold'' and revising the definitions of ``Component'', 
``Head of the Contracting Activity (HCA)'', ``Senior Procurement 
Executive (SPE)'', and the introductory paragraph of the ``Sensitive 
Information'' definition to read as follows:

3002.101  Definitions.

* * * * *
    Component means the following entities for purposes of this 
chapter:
    (1) DHS Management (MGMT), including the Office of Procurement 
Operations (OPO) and the Office of Selective Acquisitions (OSA);
    (2) Federal Emergency Management Agency (FEMA);
    (3) Federal Law Enforcement Training Center (FLETC);
    (4) Transportation Security Administration (TSA);
    (5) U.S. Coast Guard (USCG);
    (6) U.S. Customs and Border Protection (CBP);
    (7) U.S. Immigration and Customs Enforcement (ICE); and
    (8) U.S. Secret Service (USSS).
* * * * *
    Head of the Contracting Activity (HCA) means the official who has 
overall responsibility for managing the contracting activity. For DHS, 
the HCAs are:
    (1) Director, Office of Procurement Operations (OPO);
    (2) Director, Office of Selective Acquisitions (OSA);
    (3) Director, Office of Acquisition Management (FEMA);
    (4) Chief, Procurement Division (FLETC);
    (5) Assistant Administrator for Acquisition (TSA);
    (6) Director of Contracting and Procurement (USCG);
    (7) Executive Director, Procurement (CBP);
    (8) Director, Office of Acquisition Management (ICE); and
    (9) Chief, Procurement Operations (USSS).
* * * * *
    Senior Procurement Executive (SPE) for the Department of Homeland 
Security means the DHS Chief Procurement Officer (CPO), who is the 
individual appointed pursuant to 41 U.S.C. 1702 to be responsible for 
management direction of the procurement system of DHS, including 
implementation of the unique procurement policies, regulations, and 
standards of DHS.
    Sensitive Information, as used in this Chapter, means any 
information which if lost, misused, disclosed, or, without 
authorization, is accessed or modified, could adversely affect the 
national or homeland security interest, the conduct of Federal 
programs, or the privacy to which individuals are entitled under 5 
U.S.C. 552a (the Privacy Act), but which has not been specifically 
authorized under criteria established by an Executive Order or an Act 
of Congress to be kept secret in the interest of national defense, 
homeland security or foreign policy. This definition includes the 
following categories of information:
* * * * *

3002.270  [Amended]

0
13. Amend the abbreviation list entry in section 3002.270 by removing 
``HCA Head of Contracting Activity'' and adding in its place ''HCA Head 
of the Contracting Activity''.

PART 3003--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
14. Revise section 3003.101-3 to read as follows:

3003.101-3  Agency regulations.

    The United States Office of Government Ethics has promulgated 
regulations applicable to the entire Executive Branch that address the 
conduct matters referenced in (FAR) 48 CFR 3.101-3. See 5 CFR vol. 3, 
ch. XVI, subch. B. The Department of Homeland Security has also issued 
Management Directive 0480.1, Ethics/Standards of Conduct.

0
15. Revise section 3003.204 to read as follows:

3003.204  Treatment of violations.

    (a) The HCA is the official designated to make the determination 
under (FAR) 48 CFR 3.204(a) whether a gratuities violation has 
occurred. If the HCA has been personally and substantially involved in 
the specific procurement, the advice of legal counsel should be sought 
to determine whether the CPO should designate an alternate decision 
maker.
    (b) The HCA shall ensure that the hearing procedures required by 
(FAR) 48 CFR 3.204(b) are afforded to the contractor. Legal counsel 
shall be consulted regarding the appropriateness of the hearing 
procedures that are established.
    (c) If the HCA determines that the alleged gratuities violation 
occurred the HCA shall consult with legal counsel regarding appropriate 
action and notify the Office of Inspector General.

0
16. Add Subpart 3003.10 to read as follows:
Subpart 3003.10--Contractor Code of Business Ethics and Conduct
Sec.
3003.1003 Requirements.
3003.1004 Contract clauses.

Subpart 3003.10--Contractor Code of Business Ethics and Conduct

3003.1003  Requirements.

    (a) Contractor requirements. Contractors making written disclosures 
under the clause at (FAR) 48 CFR 52.203-13 must use the electronic 
Contractor Disclosure Form at http://www.oig.dhs.gov. Contractors 
making disclosures under contracts which do not contain the clause at 
(FAR) 48 CFR 52.203-13 are encouraged to also use this electronic form.

[[Page 50634]]

3003.1004  Contract clauses.

    (a) The contracting officer shall insert the clause at (HSAR) 48 
CFR 3052.203-70, Instructions for Contractor Disclosure of Violations, 
in solicitations and contracts containing the clause at (FAR) 48 CFR 
52.203-13.

PART 3004--Administrative Matters

0
17. Amend section 3004.470-2 by revising paragraph (a) to read as 
follows:

3004.470-2  Policy.

    (a) DHS's policies and procedures on contractor personnel security 
requirements are set forth in various management directives (MDs), 
Directives, and Instructions. MD 11042.1, Safeguarding Sensitive But 
Unclassified (For Official Use Only) Information describes how 
contractors must handle sensitive but unclassified information. The DHS 
Sensitive Systems Policy Directive 4300A and the DHS 4300A Sensitive 
Systems Handbook, provide the policies and procedures on security for 
Information Technology resources. Compliance with these policies and 
procedures, as amended, is required.
* * * * *

3004.470-3  [Amended]

0
18. Amend section 3004.470-3 in paragraph (b) in the second sentence by 
removing the word ``Officers'' and adding ``officers'' in its place.

3004.804-1  [Removed]

0
19a. Remove section 3004.804-1.

0
19b. In section 3004.804-570, revise paragraphs (a)(1) through (a)(3) 
to read as follows:

3004.804-570  Supporting closeout documents.

    (a) * * *
    (1) DHS Form 700-3, Contractor's Release (e.g., see (FAR) 48 CFR 
52.216-7);
    (2) DHS Form 700-2, Contractor's Assignment of Refunds, Rebates, 
Credits and Other amounts (e.g., see (FAR) 48 CFR 52.216-7);
    (3) DHS Form 700-1, Cumulative Claim and Reconciliation Statement 
(e.g., see (FAR) 48 CFR 4.804-5(a)(13)); and
* * * * *

PART 3005--PUBLICIZING CONTRACT ACTIONS

0
20. Amend Subpart 3005.4 by adding sections 3005.470, 3005.470-1, and 
3005.470-2 to read as follows:

3005.470  Contractor award announcements, advertisements, and releases.

3005.470-1  Policy.

    (a) DHS policy requires its contracting officers to restrict DHS 
contractors from referring to its DHS contract(s) in commercial 
advertising in a manner that states or implies the Government approves 
or endorses the contractor's products or services or considers them 
superior to other products or services. The intent of this policy is to 
prevent the appearance of Government bias toward any product or 
service.
    (b) The Department's contractors share the responsibility for 
protecting sensitive and classified information related to efforts 
under their contracts. For any contract that involves sensitive or 
classified information, prior to the release of any contract award 
announcement, advertisement, or other release of information pertaining 
to the contract, the contractor must obtain the approval of the 
responsible contracting officer.

3005.470-2  Contract clauses.

    (a) Insert the clause at (HSAR) 48 CFR 3052.205-70, Advertisements, 
Publicizing Awards, and Releases, in all solicitations and contracts 
that exceed the simplified acquisition threshold.
    (b) Except for research contracts with educational institutions, if 
the contract involves sensitive or classified information, use the 
clause with its Alternate I. For research contracts with educational 
institutions, see (HSAR) 48 CFR 3035.70-2(b).

PART 3006--COMPETITION REQUIREMENTS

0
21. Amend subpart 3006.3 by adding sections 3006.302-1, 3006.302-270, 
3006.303, 3006.303-270, 3006.304, and 3006.304-70 to read as follows:

Subpart 3006.3--Other Than Full and Open Competition

* * * * *
3006.302-1 Only one responsible source and no other supplies or 
services will satisfy agency requirements.
3006.302-270 Unusual and compelling urgency.
* * * * *
3006.303 Justifications.
3006.303-270 Content.
3006.304 Approval of justification.
3006.304-70 DHS Approval of justification.

3006.302-1  Only one responsible source and no other supplies or 
services will satisfy agency requirements.

    (b)(4) The contracting officer may rely on this exception in the 
case where only one source is available to provide additional units or 
replacement items under a specific make and model requirement, but only 
where the CPO has determined in accordance with the agency's 
standardization program that only the specific make(s) and model(s) 
will satisfy the agency's needs.

3006.302-270  Unusual and compelling urgency.

    (d)(1)(iii) For contract awards to facilitate the response to or 
recovery from a natural disaster, act of terrorism, or other man-made 
disaster, that relies on this exception, the period of performance 
shall be limited to the minimum period necessary to meet the urgent and 
compelling requirements of the work to be performed and to enter into 
another contract for the required goods or services through the use of 
competitive procedures, but in no event shall the period of performance 
exceed 150 days, unless the Head of the Contracting Activity (or higher 
approval authority if required by (FAR) 48 CFR 6.304 or DHS procedures) 
determines that exceptional circumstances apply, approving the 
justification as set forth in (HSAR) 48 CFR 3006.304. The limitation on 
the period of performance applies to contracts awarded in response to, 
or to recovery from:
    (A) A major disaster or emergency declared by the President under 
Title IV or Title V of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act, as amended (42 U.S.C. 5121-5207) (see http://www.fema.gov/news/disasters.fema#sev2 for a list of declarations);
    (B) An uncontrolled fire or fire complex, threatening such 
destruction as would constitute a major disaster, and for which the 
Federal Emergency Management Agency has approved a fire management 
assistance declaration in accordance with regulatory criteria at 44 CFR 
204.21 (see http://www.fema.gov/news/disasters.fema#sev2 for a list of 
declarations); or
    (C) An incident for which the National Operations Center (NOC), 
through the National Response Coordination Center (NRCC), coordinates 
the activation of the appropriate Emergency Support Functions and the 
Secretary of Homeland Security has designated a Federal Resource 
Coordinator (FRC) to manage Federal resource support.
* * * * *

3006.303  Justifications.

3006.303-270  Content.

    (a)(9)(iv) For a proposed contract subject to the restrictions of 
(HSAR) 48

[[Page 50635]]

CFR 3006.302-270(d)(1)(iii) and where (FAR) 48 CFR 6.302-2 is cited as 
the authority, the exceptional circumstances allowing for an award for 
a period of performance in excess of 150 days.

3006.304  Approval of justification.

3006.304-70  DHS Approval of justification.

    A justification for other than full and open competition that cites 
(FAR) 48 CFR section 6.302-2 as its authority shall be approved in 
writing by the HCA (unless a higher approval authority is required in 
accordance with (FAR) 48 CFR section 6.304 or DHS procedures) for a 
proposed DHS contract to facilitate the response to or recovery from a 
natural disaster, act of terrorism, or other man-made disaster with a 
period of performance in excess of 150 days. The justification should 
make plain the exceptional circumstances that justify the duration of 
the contract. This authority may not be redelegated by the HCA.

0
22. Add part 3012 to read:

PART 3012--ACQUISITION OF COMMERCIAL ITEMS

Subpart 3012.3--Solicitation Provisions and Contract Clauses for 
the Acquisition of Commercial Items

Sec.
3012.301 Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 
CFR part 1, subpart 1.3, and DHS Delegation Number 0702.

3012.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f) Solicitation provisions and contract clauses. Insert (HSAR) 48 
CFR 3052.212-70, Contract Terms and Conditions Applicable to DHS 
Acquisition of Commercial Items, in any solicitation or contract for 
commercial items when any of the provisions or clauses listed therein 
applies and where incorporation by reference of each selected provision 
or clause is, to the maximum extent practicable, consistent with 
customary commercial practice. If necessary, tailor this clause.

0
23. Add part 3018 to read:

PART 3018--EMERGENCY ACQUISITIONS

Subpart 3018.1--Available Acquisition Flexibilities

Sec.
3018.109 Priorities and allocations.

    Authority: 5 U.S.C. 301-302, 41 U.S.C. 1707, 41 U.S.C. 1702, 48 
CFR part 1, subpart 1.3, and DHS Delegation Number 0702.

3018.109  Priorities and allocations.

    DHS Components may assign priority ratings on contracts and orders 
as authorized by the Defense Priorities and Allocation System (DPAS). 
(See (HSAR) 48 CFR 3011.602.)

PART 3022--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
24. Amend section 3022.406-9(c)(1) by removing ``DHS Form 0700-04'' and 
adding in its place ``DHS Form 700-4''.

PART 3023--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

0
25. Amend Part 3023 by revising the heading to read as set forth above.
* * * * *

3023.1002  [Removed]

0
26a. Amend subpart 3023.10 by removing section 3023.1002.

0
26b. Add section 3023.1004 to read as follows:

3023.1004  Requirements.

    DHS Directive 023-02 Environmental Compliance Program provides 
guidance and direction for compliance with environmental laws, 
regulations and executive orders. DHS Directive 025-01, Sustainable 
Practices for Environmental, Energy and Transportation, provides 
guidance and direction for compliance with green purchasing and other 
sustainable practices contained in Executive Order 13423. Contracting 
officers shall ensure that solicitations and contracts contain 
appropriate sustainable practices requirements, provisions and clauses. 
Contractors shall support the DHS Environmental Policy by taking 
appropriate actions to eliminate or reduce their impacts on the 
environment.

PART 3033--PROTESTS, DISPUTES, AND APPEALS

0
27. Amend part 3033 by adding subpart 3033.1 to read as follows:

Subpart 3033.1--Protests

Sec.
3033.102 General.
3033.102-90 Protests on classified solicitations (OSA).

3033.102-90  Protests on classified solicitations (OSA).

    To ensure that classified information is protected and appropriate 
security measures are coordinated as required, protests involving 
classified solicitations issued by the Office of Selective Acquisitions 
(OSA) shall be submitted directly to the contracting officer for 
further transmission to the GAO, the United States Court of Federal 
Claims, or for internal resolution in the case of agency protests. 
Specific instructions will be provided in Section L of the 
solicitation.

PART 3035--RESEARCH AND DEVELOPMENT CONTRACTING

3035.7000  [Removed]

0
28a. Amend subpart 3035.70 by removing section 3035.7000.

0
28b. Add sections 3035.70-1 and 3035.70-2 to read as follows:

3035.70-1  Policy.

    The Department of Homeland Security (DHS) desires widespread 
dissemination of the results of funded non-sensitive research. The 
Contractor, therefore, may publish (subject to the provisions of the 
``Data Rights'' and ``Patent Rights'' clauses of the contract) research 
results in professional journals, books, trade publications, or other 
appropriate media.

3035.70-2  Contract clause.

    (a) The contracting officer shall use the clause at (HSAR) 48 CFR 
3052.235-70, Dissemination of Information--Educational Institutions, in 
contracts with educational institutions for research that is not 
sensitive or classified.
    (b) If the contract involves sensitive or classified research, the 
contracting officer shall prepare and insert a Special Contract 
Requirement that conditions dissemination upon the approval of a 
designated Government official.

PART 3036--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

3036.201  [Removed]

0
29. Remove section 3036.201.

PART 3042--CONTRACT ADMINISTRATION AND AUDIT SERVICES

Subpart 3042.2  [Removed]

0
30. Remove subpart 3042.2.

0
31. Revise section 3042.1502 to read as follows:

[[Page 50636]]

3042.1502  Policy.

    (a) Components shall use the Contractor Performance Assessment 
Reporting System (CPARS) or other performance reporting system as 
designated by the DHS Chief Procurement Officer for evaluating 
contractor performance in accordance with (FAR) 48 CFR sections 42.1502 
and 42.1503.
    (e) Components shall use the Construction Contractor Appraisal 
Support System (CCASS) module of CPARS, or other performance reporting 
system as designated by the DHS Chief Procurement Officer for 
evaluating construction contractor performance in accordance with (FAR) 
48 CFR sections 42.1502 and 42.1503.
    (f) Components shall use the Architect-Engineer Contract 
Administration Support System (ACASS) module of CPARS or other 
performance reporting system as designated by the DHS Chief Procurement 
Officer for evaluating architect-engineer contractor performance in 
accordance with (FAR) 48 CFR sections 42.1502 and 42.1503.

PART 3045--[REMOVED AND RESERVED]

0
32. Under the authority of 5 U.S.C. 301-302, part 3045 is removed and 
reserved.

PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
33. Amend section 3052.101 by adding the following note:

Subpart 3052.1--Instructions for Using Provisions and Clauses

Sec.
3052.101 Using Part 3052.
3052.101 Using Part 3052.

    Note to 3052.101:  The solicitation provisions and contract 
clauses matrix referencing all HSAR provisions and clauses is 
available at http://www.dhs.gov/xopnbiz/ under Policy and 
Regulations, Homeland Security Acquisition Regulation (HSAR).

0
34. Amend subpart 3052.2 by adding 3052.203-70 to read:

3052.203-70  Instructions for Contractor Disclosure of Violations.

    As prescribed in (HSAR) 48 CFR 3003.1004(a), insert the following 
clause:

Instructions for Contractor Disclosure of Violations ([DATE])

    When making a written disclosure under the clause at FAR 52.203-13, 
paragraph (b)(3), the Contractor shall use the Contractor Disclosure 
Form at http://www.oig.dhs.gov and submit the disclosure electronically 
to the Department of Homeland Security Office of Inspector General. The 
Contractor shall provide a copy of the disclosure to the Contracting 
Officer by email or facsimile on the same business day as the 
submission to the Office of Inspector General. The Contractor shall 
provide the Contracting Officer a concurrent copy of any supporting 
materials submitted to the Office of Inspector General.

0
35-36. Amend section 3052.204-71:
0
a. By capitalizing the first letter of every occurrence of the words 
``contractor'' and ``government'' and by revising paragraph (a) of the 
clause; and
0
b. In Alternate I by capitalizing the first letters of every occurrence 
of the words ``contractor'' and ``contracting officer'' in the 
alternate content, by removing paragraph (k)(1) of the alternate and 
renumbering paragraphs (k)(2) and (3) to (k)(1) and (2) respectively, 
and by revising the date of Alternate I.
    The revisions read as follows:

3052.204-71  Contractor employee access ([DATE])

    (a) Sensitive Information, as used in this clause, means any 
information, which if lost, misused, disclosed, or, without 
authorization is accessed, or modified, could adversely affect the 
national or homeland security interest, the conduct of Federal 
programs, or the privacy to which individuals are entitled under 
section 552a of title 5, United States Code (the Privacy Act), but 
which has not been specifically authorized under criteria established 
by an Executive Order or an Act of Congress to be kept secret in the 
interest of national defense, homeland security or foreign policy. This 
definition includes the following categories of information:
* * * * *

``Alternate I ([DATE])''

* * * * *

0
37. Amend subpart 3052.2 by adding 3052.205-70 to read as follows:

3052.205-70  Advertisements, Publicizing Awards, and Releases.

    As prescribed in (HSAR) 48 CFR 3005.470-2, insert the following 
clause:

Advertisements, Publicizing Awards, and Releases ([DATE])

    The Contractor shall not refer to this contract in commercial 
advertising or similar promotions in such a manner as to state or 
imply that the product or service provided is endorsed or preferred 
by the Federal Government or is considered by the Government to be 
superior to other products or services.

(End of clause)

    Alternate I ([DATE]). If a contract involves sensitive or 
classified information, designate the paragraph in the base clause 
as (a) and add the following paragraph (b) to the clause:
    (b) All advertisements, releases, announcements, or other 
publication regarding this contract or the agency programs and 
projects covered under it, or the results or conclusions made 
pursuant to performance, must be approved by the Contracting 
Officer. Under no circumstances shall the Contractor, or anyone 
acting on behalf of the Contractor, refer to the supplies, services, 
or equipment furnished pursuant to the provisions of this contract 
in any publicity, release, or commercial advertising without first 
obtaining explicit written consent to do so from the Contracting 
Officer.

(End of clause)

0
38. Amend subpart 3052.2 by adding section 3052.212-70 to read as 
follows:

3052.212-70  Contract Terms and Conditions Applicable to DHS 
Acquisition of Commercial Items. As prescribed in (HSAR) 48 CFR 
3012.301, insert the following clause:

Contract Terms and Conditions Applicable to DHS Acquisition of 
Commercial Items ([DATE])

    The Contractor agrees to comply with any provision or clause 
that is incorporated herein by reference to implement agency policy 
applicable to acquisition of commercial items or components. The 
provision or clause in effect based on the applicable regulation 
cited on the date the solicitation is issued applies unless 
otherwise stated herein. The following provisions and clauses are 
incorporated by reference: [The Contracting Officer should either 
check the provisions and clauses that apply or delete the provisions 
and clauses that do not apply from the list. The Contracting Officer 
may add the date of the provision or clause if desired for clarity.]

(a) Provisions.
----3052.209-72 Organizational Conflicts of Interest.
----3052.216-70 Evaluation of Offers Subject to An Economic Price 
Adjustment Clause.
----3052.219-72 Evaluation of Prime Contractor Participation in the 
DHS Mentor Prot[eacute]g[eacute] Program.

(b) Clauses.

----3052.203-70 Instructions for Contractor Disclosure of 
Violations.
----3052.204-70 Security Requirements for Unclassified Information 
Technology Resources.
----3052.204-71 Contractor Employee Access.
----Alternate I
----3052.205-70 Advertisement, Publicizing Awards, and Releases.

[[Page 50637]]

----3052.209-73 Limitation on Future Contracting.
----3052.215-70 Key Personnel or Facilities.
----3052.216-71 Determination of Award Fee.
----3052.216-72 Performance Evaluation Plan.
----3052.216-73 Distribution of Award Fee.
----3052.217-91 Performance. (USCG)
----3052.217-92 Inspection and Manner of Doing Work. (USCG)
----3052.217-93 Subcontracts. (USCG)
----3052.217-94 Lay Days. (USCG)
----3052.217-95 Liability and Insurance. (USCG)
----3052.217-96 Title. (USCG)
----3052.217-97 Discharge of Liens. (USCG)
----3052.217-98 Delays. (USCG)
----3052.217-99 Department of Labor Safety and Health Regulations 
for Ship Repair. (USCG)
----3052.217-100 Guarantee. (USCG)
----3052.219-70 Small Business Subcontracting Plan Reporting.
----3052.219-71 DHS Mentor Prot[eacute]g[eacute] Program.
----3052.228-70 Insurance.
----3052.228-90 Notification of Miller Act Payment Bond Protection. 
(USCG)
----3052.228-91 Loss of or Damage to Leased Aircraft. (USCG)
----3052.228-92 Fair Market Value of Aircraft. (USCG)
----3052.228-93 Risk and Indemnities. (USCG)
----3052.236-70 Special Provisions for Work at Operating Airports.
----3052.242-72 Contracting Officer's Technical Representative.
----3052.247-70 F.o.B. Origin Information.
----Alternate I
----Alternate II
----3052.247-71 F.o.B. Origin Only.
----3052.247-72 F.o.B. Destination Only.

(End of clause)

3052.216-71  [Amended]

0
39. Amend section 3052.216-71, Determination of Award Fee by removing 
the words ``(DEC 2003)'' from the title of the clause, adding in their 
place the words ``([DATE])'' and by removing paragraph (d).

3052.235-70  [Amended]

0
40. Amend section 3052.235-70 by removing the words ``48 CFR 
3035.7000'' in the introductory paragraph and adding in their place the 
reference to ``48 CFR 3035.70-2.''

3052.242-71  [Removed]

0
41. Remove section 3052.242-71.

3052.245-70  [Removed]

0
42. Remove section 3052.245-70.

PART 3053--FORMS

0
43. Amend section 3053.204-70 by revising paragraphs (a) through (c) to 
read as follows:

3053.204-70  Administrative matters.

* * * * *
    (a) DHS Form 700-1, Cumulative Claim and Reconciliation Statement. 
(See (HSAR) 48 CFR 3004.804-570(a)(3).)
    (b) DHS Form 700-2, Contractor's Assignment of Refunds, Rebates, 
Credits and Other Amounts. (See (HSAR) 48 CFR 3004.804-570(a)(2).)
    (c) DHS Form 700-3, Contractor Release. (See (HSAR) 48 CFR 
3004.804-570(a)(1).)

3053.222-70  [Amended]

0
44. Amend section 3053.222-70 by removing ``DHS Form 0700-04'' in the 
last line and adding ``DHS Form 700-4'' in its place.

3053.303  [Amended]

0
45. Amend section 3053.303 by removing ``DHS Form 0700-01'', ``DHS Form 
0700-02'', ``DHS Form 0700-03'', and ``DHS Form 0700-04'' from the 
table in the ``Form No.'' column, and adding in their place, 
respectively ``DHS Form 700-1'', ``DHS Form 700-2'', ``DHS Form 700-
3'', and ``DHS Form 700-4''; and by removing the whole entry for 
``Contractor Report of Government Property/DHS Form 0700-05.''

3053.245-70  [Removed and Reserved]

0
46. Remove and reserve section 3053.245-70.

[FR Doc. 2012-20440 Filed 8-21-12; 8:45 am]
BILLING CODE 9110-9B-P
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