Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Proposed Rules 9005 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. Accordingly, the 

proposed rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Greenhouse gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: February 8, 2022. 

KC Becker, 

Regional Administrator, Region 8. 

[FR Doc. 2022–03170 Filed 2–16–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF AGRICULTURE 

48 CFR Chapter 4 

[Docket No. USDA–2022–0002] 

RIN 0599–AA28 

Agriculture Acquisition Regulation 

(AGAR) 

AGENCY: United States Department of 

Agriculture. 

ACTION: Proposed rule. 

SUMMARY: The United States Department 

of Agriculture (USDA) is proposing to 

make amendments to the Agriculture 

Acquisition Regulation (AGAR) to align 

the AGAR with changes to acquisition 

law, regulations, and internal USDA 

policies since the AGAR’s last major 

revision in 1996. 

DATES: Interested parties should submit 

written comments on or before March 

21, 2022 to be considered in the 

formation of the final rule. 

ADDRESSES: Submit comments in 

response to the proposed rule to the 

Federal eRulemaking portal at https://

www.regulations.gov by searching for 

‘‘AGAR.’’ Follow the instructions 

provided on the ‘‘Comment Now’’ 

screen. If your comment cannot be 

submitted using Regulations.gov, email 

the point of contact in the FOR FURTHER

INFORMATION CONTACT section of this 

document for alternate instructions. 

FOR FURTHER INFORMATION CONTACT: 

Crandall Watson, Chief, Procurement 

Policy Division, Office of Contracting 

and Procurement, Telephone: (202) 

720–7529; Email: Procurement.Policy@

usda.gov. 

SUPPLEMENTARY INFORMATION: This 

rulemaking is necessary to update the 

AGAR located in 48 CFR parts 401 

through 499. 

I. Background 

The Agriculture Acquisition 

Regulation (AGAR) implements the 

Federal Acquisition Regulation (FAR) 

(48 CFR ch. 1) where further 

implementation is needed, and 

supplements the FAR when coverage is 

needed for subject matter not covered by 

the FAR. The Department of Agriculture 

(USDA) identified parts of the AGAR 

which required updating or 

streamlining based on updates to 

acquisition law, regulations, and 

internal USDA policies. USDA’s review 

indicated that almost all parts of the 

AGAR required revision. Accordingly, 

USDA has reviewed and revised 

substantially all parts of the AGAR. 

II. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This proposed rule is an 

internal rule of agency procedure and 

therefore is not a significant regulatory 

action under Executive Order 12866. 

III. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

as amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996 (SBREFA), 5 U.S.C. 601 et seq., 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to the notice and comment 

rulemaking requirements under the 

Administrative Procedure Act (5 U.S.C. 

553) or any other statute. Under section 

605(b) of the RFA, however, if the head 

of an agency certifies that a rule will not 

have a significant impact on a 

substantial number of small entities, the 

statute does not require the agency to 

prepare a regulatory flexibility analysis. 

The proposed changes would update 

the AGAR to bring it up to date and to 

make sure correspondence with the FAR 

is maintained. The proposed rule would 

amend the AGAR to correct and update 

internal references to the FAR; to 

remove sections supplementing material 

that has been removed from the FAR; 

and to update designations of USDA. 

Therefore, pursuant to section 605(b), 

USDA certifies that this proposed rule, 

if promulgated, will not have a 

significant impact on a substantial 

number of small entities. 

IV. Paperwork Reduction Act 

The proposed rule does not contain 

any information collection requirements 

that require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects 

48 CFR Part 401 

Government procurement, Reporting 

and recordkeeping requirements. 

48 CFR Parts 402, 405 Through 406, 411 

Through 416, 434 Through 437, and 447 

Through 470 

Government procurement. 


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48 CFR Part 403 

Antitrust, Conflict of interest, 

Government procurement. 

48 CFR Part 404 

Classified information, Government 

procurement. 

48 CFR Part 408 

Government procurement, Printing. 

48 CFR Part 419 

Government procurement, Small 

businesses. 

48 CFR Part 422 

Equal employment opportunity, 

Government procurement, Individuals 

with disabilities, Labor. 

48 CFR Part 423 

Air pollution control, Government 

procurement, Occupational safety and 

health, Water pollution control. 

48 CFR Part 425 

Foreign currencies, Foreign trade, 

Government procurement. 

48 CFR Part 428 

Government procurement, Insurance, 

Surety bonds. 

48 CFR Parts 430 Through 432 

Accounting, Government 

procurement. 

48 CFR Part 433 

Administrative practice and 

procedure, Government procurement. 

48 CFR Part 445 

Government procurement, 

Government property. 

■ For the reasons set out in the 

preamble, and under the authority of 5 

U.S.C. 301 and 40 U.S.C. 486(c), USDA 

proposes to revise 48 CFR chapter 4 to 

read as follows. 

CHAPTER 4—DEPARTMENT OF 

AGRICULTURE 

SUBCHAPTER A—GENERAL 

PART 400—[RESERVED] 

PART 401—AGRICULTURE ACQUISITION 

REGULATION SYSTEM 

PART 402—DEFINITIONS OF WORDS AND 

TERMS 

PART 403—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS 

PART 404—ADMINISTRATIVE AND 

INFORMATION MATTERS 

SUBCHAPTER B—ACQUISITION PLANNING 

PART 405—PUBLICIZING CONTRACT 

ACTIONS 

PART 406—COMPETITION 

REQUIREMENTS 

PART 407—[RESERVED] 

PART 408—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

PARTS 409 and 410—[RESERVED] 

PART 411—DESCRIBING AGENCY NEEDS 

PART 412—ACQUISITION OF 

COMMERICAL ITEMS 

SUBCHAPTER C—CONTRACTING 

METHODS AND CONTRACT TYPES 

PART 413—SIMPLIFIED ACQUISITION 

PROCEDURES 

PART 414—SEALED BIDDING 

PART 415—CONTRACTING BY 

NEGOTIATION 

PART 416—TYPES OF CONTRACTS 

PARTS 417 AND 418—[RESERVED] 

SUBCHAPTER D—SOCIOECONOMIC 

PROGRAMS 

PART 419—SMALL BUSINESS PROGRAMS 

PARTS 420 AND 421—[RESERVED] 

PART 422—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

PART 423—ENVIRONMENT, ENERGY AND 

WATER EFFICIENCY, RENEWABLE 

ENERGY TECHNOLOGIES, 

OCCUPATIONAL SAFETY, AND DRUGFREE WORKPLACE 

PART 424—[RESERVED] 

PART 425—FOREIGN ACQUISITION 

PART 426—[RESERVED] 

SUBCHAPTER E—GENERAL 

CONTRACTING REQUIREMENTS 

PART 427—[RESERVED] 

PART 428—BONDS AND INSURANCE 

PART 429—[RESERVED] 

PART 430—COST ACCOUNTING 

STANDARDS ADMINISTRATION 

PART 431—CONTRACT COST PRINCIPLES 

AND PROCEDURES 

PART 432—CONTRACT FINANCING 

PART 433—PROTESTS, DISPUTES AND 

APPEALS 

SUBCHAPTER F—SPECIAL CATEGORIES 

OF CONTRACTING 

PART 434—MAJOR SYSTEM ACQUISITION 

PART 435—[RESERVED] 

PART 436—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

PART 437—SERVICE CONTRACTING 

PARTS 438 THROUGH 441—[RESERVED] 

SUBCHAPTER G—CONTRACT 

MANAGEMENT 

PARTS 442 THROUGH 444—[RESERVED] 

PART 445—GOVERNMENT PROPERTY 

PARTS 446 THROUGH 448—[RESERVED] 

PART 449—TERMINATION OF 

CONTRACTS 

PART 450—EXTRAORDINARY 

CONTRACTUAL ACTIONS AND THE 

SAFETY ACT 

PART 451—[RESERVED] 

SUBCHAPTER H—CLAUSES AND FORMS 

PART 452—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

PARTS 453 THROUGH 469—[RESERVED] 

SUBCHAPTER I—FOOD ASSISTANCE 

PROGRAMS 

PART 470—COMMODITY ACQUISITIONS 

PARTS 471 THROUGH 499—[RESERVED] 

SUBCHAPTER A—GENERAL 

PART 400—[RESERVED] 

PART 401—AGRICULTURE 

ACQUISITION REGULATION SYSTEM 

Subpart 401.1—Purpose, Authority, 

Issuance 

Sec. 

401.101 Purpose. 

401.103 Authority. 

401.104 Applicability. 

401.105 Issuance. 

401.105–1 Publication and code 

arrangement. 

401.105–2 Arrangement of regulations. 

401.105–3 Copies. 

401.170 Electronic access to regulatory 

information. 

Subpart 401.2—Administration 

401.201 Maintenance of the FAR. 

401.201–1 The two councils. 

Subpart 401.3—Agency Acquisition 

Regulations 

401.301 Policy. 

401.304 Agency control and compliance 

procedures. 

401.370 Exclusions. 

401.371 USDA Contracting Desk Book. 

401.372 Departmental directives. 

Subpart 401.4—Deviations From the FAR 

and AGAR 

401.402 Policy. 

401.403 Individual deviations. 

401.404 Class deviations. 

Subpart 401.6—Career Development, 

Contracting Authority, and Responsibilities 

401.601 General. 

401.602 Contracting officers. 

401.602–3 Ratification of unauthorized 

commitments. 

401.603 Selection, appointment, and 

termination of appointment for 

contracting officers. 

401.603–1 General. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 401.1—Purpose, Authority, 

Issuance 

401.101 Purpose. 

The United States Department of 

Agriculture’s (USDA’s) Acquisition 

Regulation (AGAR) provides for the 

codification and publication of uniform 

policies and procedures for acquisitions 

by contracting activities within USDA. 

The purpose of the AGAR is to 

implement the Federal Acquisition 

Regulation (FAR), where further 

implementation is needed, and to 

supplement the FAR when coverage is 

needed for subject matter not covered in 

the FAR. The AGAR is not by itself a 

complete document, as it must be used 

in conjunction with the FAR. 


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401.103 Authority. 

The AGAR and subsequent 

amendments are issued under 5 U.S.C. 

301 and 40 U.S.C. 486(c). The Senior 

Procurement Executive (SPE) has the 

delegated authority to transmit 

Departmental acquisition regulations. 

401.104 Applicability. 

The FAR and AGAR apply to all 

USDA acquisitions of supplies and 

services (including construction) which 

obligate appropriated funds, unless 

otherwise specified or excepted by law. 

401.105 Issuance. 

401.105–1 Publication and code 

arrangement. 

(a) The AGAR is codified in the Code 

of Federal Regulations (CFR) as chapter 

4 of title 48, Federal Acquisition 

Regulations System, to implement and 

supplement chapter 1 which constitutes 

the FAR. Parts 400 through 499 have 

been assigned to USDA by the Office of 

the Federal Register. 

(b) The AGAR and its subsequent 

changes are published in: 

(1) Daily issues of the Federal 

Register; 

(2) Cumulative form in the CFR; and 

(3) Electronic form on the USDA 

Departmental Administration 

procurement website (see AGAR 

401.170). 

(c) Section 553(a)(2) of the 

Administrative Procedure Act, 5 U.S.C. 

553, provides an exception from the 

standard public rulemaking procedures 

to the extent that the rule involves a 

matter relating to agency management or 

personnel or to public property, loans, 

grants, benefits, or contracts. 

(d) The AGAR may be revised from 

time to time in accordance with the 

rulemaking procedures of the 

Administrative Procedure Act. The 

USDA is also required to publish for 

public comment procurement 

regulations in the Federal Register, 

pursuant to the Office of Federal 

Procurement Policy Act (41 U.S.C. 

418b), and FAR 1.301. 

401.105–2 Arrangement of regulations. 

AGAR coverage parallels the FAR in 

format, arrangement, and numbering 

system. However, subdivisions below 

the section and subsection levels may 

not always correlate directly to FAR 

designated paragraphs and 

subparagraphs. 

401.105–3 Copies. 

Copies of the AGAR published in the 

CFR form may be purchased from the 

Superintendent of Documents, 

Government Printing Office, 

Washington, DC 20402. Requests should 

reference chapter 4 of title 48 CFR. 

401.170 Electronic access to regulatory 

information. 

The USDA procurement website 

provides access to the AGAR, AGAR 

amendments (circulars), the USDA 

Contracting Desk Book, and other USDA 

procurement policy and guidance. 

Subpart 401.2—Administration 

401.201 Maintenance of the FAR. 

401.201–1 The two councils. 

(a) USDA’s representative on the 

Civilian Agency Acquisition Council is 

designated by the SPE. 

(b) The USDA Office of Contracting 

and Procurement, Procurement Policy 

Division will coordinate proposed FAR 

revisions within USDA. 

Subpart 401.3—Agency Acquisition 

Regulations 

401.301 Policy. 

(a) The SPE, subject to the authorities 

in AGAR 401.103 and FAR 1.301, may 

issue and publish Departmental 

regulations, that together with the FAR 

constitute Department-wide policies, 

procedures, solicitation provisions, and 

contract clauses governing the 

contracting process or otherwise 

controlling the relationship between 

USDA (including any of its contracting 

activities) and contractors or 

prospective contractors. 

(b) Each designated Mission Area 

senior contracting official is authorized 

to issue or authorize the issuance of, at 

any organizational level, internal 

guidance which does not have a 

significant effect beyond the internal 

operating procedures of the activity, or 

a significant cost or administrative 

impact on offerors or contractors. 

Internal guidance issued by contracting 

activities will not be published in the 

Federal Register. Mission Area 

contracting leadership shall ensure that 

the guidance, procedures, or 

instructions issued— 

(1) Are consistent with the policies 

and procedures contained in this 

regulation and the USDA Contracting 

Desk Book; 

(2) Follow the format, arrangement, 

and numbering system of this regulation 

to the extent practicable; 

(3) Contain no material which 

duplicates, paraphrases, or is 

inconsistent with this regulation; and 

(4) Are numbered and identified by 

use of alphabetical suffices to the 

chapter number as follows: 

(i) Marketing and Regulatory 

Programs (MRP). 

(ii) Research, Education and 

Economics (REE). 

(iii) Food, Nutrition and Consumer 

Services (FNCS). 

(iv) Natural Resources and 

Environment (NRE). 

(v) Farm Production and Conservation 

(FPAC). 

(vi) Food Safety and Inspection 

Services (FSIS). 

(vii) [Reserved] 

(viii) Departmental Administration 

(DA) or Departmental Management 

(DM). 

(ix) [Reserved] 

(x) Rural Development (RD). 

401.304 Agency control and compliance 

procedures. 

(a) The AGAR System is under the 

direct oversight and control of the SPE, 

who is responsible for review and 

issuance of all Department-wide 

acquisition regulations published in the 

Federal Register to assure compliance 

with FAR part 1. 

(b) The SPE is also responsible for 

review and issuance of unpublished, 

Department-wide internal guidance 

under the AGAR System. 

(c) The Mission Area senior 

contracting official is responsible for 

establishment and implementation of 

formal procedures for oversight and 

control of unpublished internal 

guidance issued within the contracting 

activity to implement FAR or AGAR 

requirements. These procedures shall be 

subject to the review and approval by 

the SPE. 

(d) The SPE is responsible for 

evaluating coverage under the AGAR 

system to determine applicability to 

other agencies and for recommending 

coverage to the FAR Secretariat for 

inclusion in the FAR. 

(e) Recommendations for revision of 

existing FAR coverage or new FAR 

coverage shall be submitted by the 

Mission Area senior contracting official 

to the SPE for further action. 

401.370 Exclusions. 

Subject to the policies of FAR 1.3, 

certain USDA acquisition policies and 

procedures may be excluded from the 

AGAR under appropriately justified 

circumstances, such as: 

(a) Subject matter which is effective 

for a period less than 12 months. 

(b) Subject matter which is instituted 

on an experimental basis for a 

reasonable period. 

(c) Acquisition procedures instituted 

on an interim basis to comply with the 

requirements of statute, regulation, 

Executive Order, Office of Management 

and Budget (OMB) Circular, or Office of 

Federal Procurement Policy (OFPP) 

Policy Letter. 


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401.371 USDA Contracting Desk Book. 

(a) The SPE may issue and update the 

USDA Contracting Desk Book, 

consistent with the policies of the FAR 

and the AGAR, for the following 

purposes: 

(1) To communicate Department-wide 

policy and/or procedural guidance to 

contracting activities; 

(2) To delegate to procurement 

officials the authority to make 

determinations or to take action to 

implement the policies of the FAR or 

the AGAR; and, 

(3) To establish internal policy and 

procedures on an interim basis, prior to 

incorporation in the AGAR or in a 

Departmental Directive. 

(b) The USDA Contracting Desk Book 

is only available in electronic format on 

the USDA procurement website. 

401.372 Departmental directives. 

Subject to the policies of FAR 1.3, 

USDA from time to time may issue 

internal directives to establish 

procedures, standards, guidance, 

methods of performing duties, 

functions, or operations. Such directives 

include Departmental Regulations 

(DRs), Departmental Notices, and 

Secretary’s Memoranda. 

Subpart 401.4—Deviations From the 

FAR and AGAR 

401.402 Policy. 

Requests for authority to deviate from 

the provisions of the FAR or the AGAR 

shall be submitted in writing as far in 

advance of the situation as time will 

permit. Each request for deviation shall 

contain the following: 

(a) A statement of the deviation 

desired, including identification of the 

specific paragraph number(s) of the FAR 

and AGAR; 

(b) The reason why the deviation is 

considered necessary or would be in the 

best interest of the Government; 

(c) If applicable, the name of the 

contractor and identification of the 

contract affected; 

(d) A statement as to whether the 

deviation has been requested previously 

and, if so, circumstances of the previous 

request; 

(e) A description of the intended 

effect of the deviation; 

(f) A statement of the period of time 

for which the deviation is needed; and 

(g) Any pertinent background 

information which will contribute to a 

full understanding of the desired 

deviation. 

401.403 Individual deviations. 

In individual cases, deviations from 

either the FAR or the AGAR will be 

authorized only when essential to effect 

a necessary acquisition or where special 

circumstances make such deviations 

clearly in the best interest of the 

Government. Except for cost principles, 

the Head of the Contracting Activity 

(HCA) may approve individual 

deviations from the AGAR, after 

coordinating with the Office of General 

Counsel (OGC) and the SPE. No 

deviations from the FAR or AGAR may 

be authorized by an individual 

contracting officer or an individual 

contracting office. A copy of each 

deviation and its supporting documents 

shall be provided to the SPE. Deviations 

from the FAR shall not be made unless 

such action is authorized by the SPE 

after consultation with the OGC and any 

other appropriate office, based on a 

written justification stating clearly the 

special circumstances involved. 

401.404 Class deviations. 

Where deviations from the FAR or 

AGAR are considered necessary for 

classes of contracts, requests for 

authority to deviate shall be submitted 

in writing to the SPE for approval. The 

SPE may authorize class deviations from 

the FAR without consulting the 

Chairperson of the Civilian Agency 

Acquisition Council (CAAC) where 

urgency precludes consultation. The 

SPE shall subsequently inform the 

Chairperson of the CAAC of the 

deviation, including the circumstances 

under which it was required. 

Subpart 401.6—Career Development, 

Contracting Authority, and 

Responsibilities 

401.601 General. 

(a) The authority and responsibility 

vested in the Secretary to manage 

USDA’s acquisition function is 

delegated through the Assistant 

Secretary for Administration to the SPE. 

This broad authority includes, but is not 

limited to, the following 

responsibilities: 

(1) Prescribing and publishing 

Departmental acquisition policies, 

regulations, and procedures. 

(2) Taking any necessary actions 

consistent with policies, regulations, 

and procedures with respect to 

purchases, contracts, leases, and other 

transactions. 

(3) Designating contracting officers. 

(4) Establishing clear lines of 

contracting authority. 

(5) Evaluating and monitoring the 

performance of USDA’s acquisition 

system. 

(6) Managing and enhancing career 

development of the acquisition 

workforce. 

(7) Participating in the development 

of Government-wide acquisition 

policies, regulations, and standards; and 

determining specific areas where 

government-wide performance 

standards should be established and 

applied. 

(8) Determining areas of Departmentunique standards and developing 

unique Department-wide standards. 

(9) Certifying to the Secretary that the 

acquisition system meets approved 

standards. 

(b) The SPE may delegate specified 

contracting authority and the 

responsibility to manage related 

acquisition functions. 

(c) Unless prohibited by the FAR, the 

AGAR, or by other applicable statutes 

and regulations, the SPE may redelegate 

specified authority to make 

determinations in order to implement 

the policies and procedures of the FAR. 

Such delegations shall be in writing but 

need not be published. Such delegations 

may be made by the HCA if authority 

has been delegated by the SPE. 

401.602 Contracting officers. 

401.602–3 Ratification of unauthorized 

commitments. 

(a) Ratification means the signed, 

documented action taken by an 

authorized official to approve and 

sanction a previously unauthorized 

commitment. Unauthorized 

commitment means an agreement made 

by a Government representative who 

lacked the authority to enter into a 

contract on behalf of the Government. 

(b) Procedures are in accordance with 

the USDA Contracting Desk Book, Part 

401.602–3. 

401.603 Selection, appointment, and 

termination of appointment for contracting 

officers. 

401.603–1 General. 

The SPE may delegate contracting 

authority to the extent authorized by 

general written delegation of acquisition 

authority appointing qualified 

individuals as contracting officers, in 

accordance with selection and 

appointment procedures as stated in the 

USDA Contracting Desk Book. 

PART 402—DEFINITIONS OF WORDS 

AND TERMS 

Subpart 402.1—Definitions 

Sec. 

402.101 Definitions. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 


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Subpart 402.1—Definitions 

402.101 Definitions. 

Acquisition official means an 

individual who has been delegated 

authority to manage or to exercise 

acquisition functions and 

responsibilities. 

Agency head or head of the agency 

means the Secretary of Agriculture 

(Secretary), Deputy Secretary, or the 

Assistant Secretary for Administration 

(ASA). 

Head of the Contracting Activity 

(HCA) means the official with overall 

responsibility of one or more USDA 

contracting activities. 

Mission Area senior contracting 

official means the official designated by 

the Senior Procurement Executive or 

Head of the Contracting Activity with 

specific responsibilities within an 

individual Mission Area’s contracting 

activity. 

Senior Procurement Executive (SPE) 

means the agency official appointed as 

such by the Head of the Agency 

pursuant to Executive Order 12931. The 

Director, Office of Contracting and 

Procurement, has been designated as the 

USDA SPE. 

PART 403—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS 

Subpart 403.1—Safeguards 

Sec. 

403.101 Standards of conduct. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 403.1—Safeguards 

403.101 Standards of conduct. 

(a) The standards of conduct for 

USDA procurement officials are the 

uniform standards established by the 

Office of Government Ethics in 5 CFR 

part 2635, Standards of Ethical Conduct 

for Employees of the Executive Branch, 

and FAR 3.104, Procurement Integrity. 

(b) Procurement officials and other 

employees who require advice 

concerning the application of standards 

of conduct to any acquisition issue shall 

obtain opinions from the USDA Office 

of Ethics or the ethics advisory officials 

within their agency. 

PART 404—ADMINISTRATIVE AND 

INFORMATION MATTERS 

Subpart 404.8—Government Contract Files 

Sec. 

404.804 Closeout of contract files. 

Subpart 404.13—Personal Identity 

Verification 

404.1303 Contract clause. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 404.8—Government Contract 

Files 

404.804 Closeout of Contract Files. 

The contracting officer shall insert the 

clause at AGAR 452.204–70, 

Modification for Contract Closeout, in 

all solicitations and contracts that use 

simplified acquisition procedures. 

Subpart 404.13—Personal Identity 

Verification 

404.1303 Contract clause. 

FAR 4.13, Personal Identity 

Verification, establishes the policy and 

use requirements for FAR 52.204–9. The 

contracting officer shall insert a clause 

that contains language similar to that in 

AGAR 452.204–71 in all covered 

solicitations and contracts which 

include FAR 52.204–9. 

SUBCHAPTER B—ACQUISITION PLANNING 

PART 405—PUBLICIZING CONTRACT 

ACTIONS 

Subpart 405.4—Release of Information 

Sec. 

405.404 Release of long-range acquisition 

estimates. 

405.404–1 Release procedures. 

Subpart 405.5—Paid Advertisements 

405.502 Authority. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 405.4—Release of Information 

405.404 Release of long-range acquisition 

estimates. 

405.404–1 Release procedures. 

The HCA is the agency head designee 

pursuant to FAR 5.404–1. 

Subpart 405.5—Paid Advertisements 

405.502 Authority. 

The authority vested in the HCA to 

authorize publication of paid 

advertisements in newspapers (44 

U.S.C. 3702) is delegated, with power of 

redelegation, to Mission Area senior 

contracting officials. A Mission Area 

senior contracting official’s redelegation 

of this authority shall be in writing. 

PART 406—COMPETITION 

REQUIREMENTS 

Subpart 406.2—Full and Open Competition 

After Exclusion of Sources 

Sec. 

406.202 Establishing or maintaining 

alternative sources. 

Subpart 406.3—Other Than Full and Open 

Competition 

406.302 Circumstances permitting other 

than full and open competition. 

406.302–70 Otherwise authorized by law. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 406.2—Full and Open 

Competition After Exclusion of 

Sources 

406.202 Establishing or maintaining 

alternative sources. 

The SPE is authorized to make 

determinations pursuant to FAR 

6.202(a) and sign the determination and 

findings required by FAR 6.202(b). 

Subpart 406.3—Other Than Full and 

Open Competition 

406.302 Circumstances permitting other 

than full and open competition. 

406.302–70 Otherwise authorized by law. 

(a) Authority. Section 1472 of the 

National Agricultural Research, 

Extension, and Teaching Policy Act of 

1977 (7 U.S.C. 3318) (the Act) 

authorizes the Secretary of Agriculture 

to award contracts, without 

competition, to further research, 

extension, or teaching programs in the 

food and agricultural sciences. 

(b) Limitations. The use of this 

authority is limited to those instances 

where it can be determined that 

contracting without full and open 

competition is in the best interest of the 

Government and necessary to the 

accomplishment of the research, 

extension, or teaching program. 

Therefore: 

(1) Contracts under the authority of 

the Act shall be awarded on a 

competitive basis to the maximum 

practicable extent. 

(2) When full and open competition is 

not deemed appropriate, the contracting 

officer shall make a written justification 

on a case-by-case basis in accordance 

with procedures in FAR 6.303 and 

6.304. 

PART 407—[RESERVED] 

PART 408—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

Subpart 408.8—Acquisition of Printing and 

Related Supplies 

408.802 Policy. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 


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Subpart 408.8—Acquisition of Printing 

and Related Supplies 

408.802 Policy. 

The Director, Office of 

Communications (OC) has been 

designated as the central printing 

authority in USDA, with the authority to 

represent the USDA before the Joint 

Committee on Printing (JCP), the 

Government Printing Office, and other 

Federal and State agencies on all 

matters related to printing. 

PARTS 409 AND 410—[RESERVED] 

PART 411—DESCRIBING AGENCY 

NEEDS 

Subpart 411.1—Selecting and Developing 

Requirements Documents 

Sec. 

411.101 Order of precedence for 

requirements documents. 

Subpart 411.2—Using and Maintaining 

Requirements Documents 

411.202 Maintenance of standardization 

documents. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 411.1—Selecting and 

Developing Requirements Documents 

411.101 Order of precedence for 

requirements documents. 

(a) OMB Circular A–119 establishes a 

Federal policy requiring the use of 

voluntary consensus standards in lieu of 

government-unique standards except 

where inconsistent with law or 

otherwise impractical. 

(b) An HCA is authorized to submit 

the determination required by OMB 

Circular A–119 that a voluntary 

standard is inconsistent with law or 

otherwise impracticable. The HCA must 

submit the determination to OMB 

through the National Institute of 

Standards and Technology (NIST) in 

accordance with the Circular with a 

copy provided to the SPE. 

Subpart 411.2—Using and Maintaining 

Requirements Documents 

411.202 Maintenance of standardization 

documents. 

Recommendations for changes to 

standardization documents are to be 

submitted through the SPE, who will 

coordinate the submission of these 

recommendations to the cognizant 

preparing activity. 

PART 412—ACQUISITION OF 

COMMERICAL ITEMS 

Subpart 412.1—Acquisition of Commercial 

Items—General 

Sec. 

412.101 Policy. 

Subpart 412.3—Solicitation Provisions and 

Contract Clauses for the Acquisition of 

Commercial Items 

412.302 Tailoring of provisions and clauses 

for the acquisition of commercial items. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 412.1—Acquisition of 

Commercial Items—General 

412.101 Policy. 

USDA has authority to issue rated 

orders under section 202(c) of Executive 

Order 13603, and the Defense 

Production Act of 1950, as Amended 

(DPA), 50 U.S.C. 4501 et seq. USDA has 

been given authority by the Secretary of 

Homeland Security for priorities and 

allocations of support for agriculture 

and food critical infrastructure, 

protection, and restoration: Programs to 

protect or restore the agriculture and 

food system from terrorist attacks, major 

disasters, and other emergencies. 

Subpart 412.3—Solicitation Provisions 

and Contract Clauses for the 

Acquisition of Commercial Items 

412.302 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 shall be incorporated 

into the contract file. 

SUBCHAPTER C—CONTRACTING 

METHODS AND CONTRACT TYPES 

PART 413—SIMPLIFIED ACQUISITION 

PROCEDURES 

Subpart 413.3—Simplified Acquisition 

Methods 

Sec. 

413.302 Purchase orders. 

413.302–5 Clauses. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 413.3—Simplified Acquisition 

Methods 

413.302 Purchase orders. 

413.302–5 Clauses. 

The contracting officer shall insert the 

clause at AGAR 452.204–70, 

Modification for Contract Closeout, in 

all solicitations and contracts that use 

simplified acquisition procedures. 

PART 414—SEALED BIDDING 

Subpart 414.4—Opening of Bids and Award 

of Contract 

Sec. 

414.404 Rejection of bids. 

414.407 Mistakes in bids. 

414.407–3 Other mistakes disclosed before 

award. 

414.407–4 Mistakes after award. 

414.409 Information to bidders. 

414.409–2 Award of classified contracts. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 414.4—Opening of Bids and 

Award of Contract 

414.404 Rejection of bids. 

414.404–1 Cancellation of invitations after 

opening. 

An acquisition official at a level above 

the contracting officer is authorized to 

request the determinations under FAR 

14.404–1(c) and (e)(1). 

414.407 Mistakes in bids. 

414.407–3 Other mistakes disclosed 

before award. 

The authority to make the 

determinations under FAR 14.407–3(a), 

(b), and (d) is delegated, without power 

of redelegation, to the HCA. The 

authority to make the determination 

under FAR 14.407–3(c) is delegated to 

the contracting officer. Each 

determination pursuant to FAR 14.407– 

3 shall have the concurrence of the 

Office of the General Counsel (OGC). 

414.407–4 Mistakes after award. 

If a mistake in bid is disclosed after 

award, the contracting officer shall 

make a final determination in 

accordance with the provisions of FAR 

14.407–4 (b) and (c) and shall 

coordinate each proposed determination 

with OGC. Such coordination shall, at a 

minimum, consist of the contracting 

officer providing the proposed 

determination and the case file to OGC 

for comment. 

414.409 Information to bidders. 

414.409–2 Award of classified contracts. 

Disposition of classified information 

shall be in accordance with 

Departmental Regulation and Manual 

(3400–001 Series) and in accordance 

with direction issued by the USDA 

Office of Homeland Security (OHS), 

Personnel and Document Security 

Division. 


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PART 415—CONTRACTING BY 

NEGOTIATION 

Subpart 415.2—Solicitation and Receipt of 

Proposals and Information 

Sec. 

415.204 Contract format. 

Subpart 415.3—Source Selection 

415.305 Proposal evaluation. 

Subpart 415.6—Unsolicited Proposals 

415.604 Agency points of contact. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 415.2—Solicitation and 

Receipt of Proposals and Information 

415.204 Contract format. 

The HCA is authorized to exempt 

contracts from the uniform contract 

format. 

Subpart 415.3—Source Selection 

415.305 Proposal evaluation. 

Each Mission Area senior contracting 

official is responsible for establishing 

procedures regarding the release of cost 

information to the members of the 

technical evaluation team per FAR 

15.305(a)(4). 

Subpart 415.6—Unsolicited Proposals 

415.604 Agency points of contact. 

Each Mission Area senior contracting 

official is responsible for establishing 

points of contact for the control of 

unsolicited proposals. An unsolicited 

proposal must be formally submitted to 

the Agency by way of the point of 

contact. 

PART 416—TYPES OF CONTRACTS 

Subpart 416.1—Selecting Contract Types 

Sec. 

416.102 Policies. 

Subpart 416.2—Fixed-Price Contracts 

416.203 Fixed-price contracts with 

economic price adjustment. 

416.203–4 Contract clauses. 

Subpart 416.6—Time-and-Materials, LaborHour, and Letter Contracts 

416.603 Letter contracts. 

416.603–2 Application. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 416.1—Selecting Contract 

Types 

416.102 Policies. 

The contracting officer shall insert the 

clause at AGAR 452.204–70, 

Modification for Contract Closeout, in 

all solicitations and contracts that use 

other than cost reimbursement contract 

types. 

Subpart 416.2—Fixed-Price Contracts 

416.203 Fixed-price contracts with 

economic price adjustment. 

416.203–4 Contract clauses. 

An economic price adjustment clause 

based on cost indexes of labor or 

material may be used under the 

conditions listed in FAR 16.203–4(d) 

after HCA approval and consultation 

with the Office of the General Counsel 

(OGC). 

Subpart 416.6—Time-and-Materials, 

Labor-Hour, and Letter Contracts 

416.603 Letter contracts. 

416.603–2 Application. 

The HCA is authorized to extend the 

period for defining a letter contract 

required by FAR 16.603–2(c) in extreme 

cases where it is determined in writing 

that such action is in the best interest of 

the Government. 

PARTS 417 AND 418—[RESERVED] 

SUBCHAPTER D—SOCIOECONOMIC 

PROGRAMS 

PART 419—SMALL BUSINESS 

PROGRAMS 

Subpart 419.2—Policies 

Sec. 

419.201 General Policy. 

419.201–71 Small business coordinators. 

419.201–72 Reports. 

Subpart 419.6—Certificates of Competency 

and Determinations of Responsibility 

419.602 Procedures. 

419.602–3 Resolving differences between 

the agency and the Small Business 

Administration. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 419.2—Policies 

419.201 General policy. 

419.201–71 Small business coordinators. 

The Mission Area senior contracting 

official shall designate, in writing, small 

business coordinator(s). The number of 

coordinators shall be determined by the 

Mission Area senior contracting official 

and sufficient for the number of 

contracting officers or contracting 

offices. 

419.201–72 Reports. 

The Office of Small & Disadvantaged 

Business Utilization (OSDBU) Director 

shall be responsible for submitting 

reports concerning USDA’s progress and 

achievements in the procurement 

preference program. 

Subpart 419.6—Certificates of 

Competency and Determinations of 

Responsibility 

419.602 Procedures. 

419.602–3 Resolving differences between 

the agency and the Small Business 

Administration. 

The HCA is authorized to appeal the 

issuance of a Certificate of Competency 

(COC) to SBA as provided by FAR 

19.602–3(a). 

PARTS 420 AND 421—[RESERVED] 

PART 422—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

Subpart 422.3—Contract Work Hours and 

Safety Standards Act 

Sec. 

422.302 Liquidated damages and overtime 

pay. 

Subpart 422.4—Labor Standards for 

Contracts Involving Construction 

422.404 Construction Wage Rate 

Requirements statute wage 

determinations. 

422.404–6 Modifications of wage 

determinations. 

422.406 Administration and enforcement. 

422.406–8 Investigations. 

Subpart 422.8—Equal Employment 

Opportunity 

422.804 Affirmative action programs. 

422.804–2 Construction. 

422.807 Exemptions. 

Subpart 422.13—Equal Opportunity for 

Veterans 

422.1305 Waivers. 

Subpart 422.14—Employment of Workers 

With Disabilities 

422.1403 Waivers. 

Subpart 422.70—Labor Law Violations 

422.7001 Contract clause. 

422.7002 Contract clause. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 422.3—Contract Work Hours 

and Safety Standards Act 

422.302 Liquidated damages and overtime 

pay. 

The Mission Area senior contracting 

official is authorized to review 

determinations of liquidated damages 

due under section 104(c) of the Contract 

Work Hours and Safety Standards Act, 

and to recommend remedial action, if 

appropriate, in accordance with FAR 

22.302(c). Contractors or subcontractors 

may request review of administrative 

determinations of liquidated damages 

by written notice to the contracting 

officer. The contracting officer shall 

promptly forward appeals of liquidated 


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damages determinations to the Mission 

Area senior contracting official. 

Subpart 422.4—Labor Standards for 

Contracts Involving Construction 

422.404 Construction Wage Rate 

Requirements statute wage determinations. 

422.404–6 Modifications of wage 

determinations. 

The Mission Area senior contracting 

official is authorized to process the 

request for extension of the 90-day 

period for award after bid opening as 

provided in FAR 22.404–6(b)(6). 

422.406 Administration and enforcement. 

422.406–8 Investigations. 

The HCA is authorized to submit 

reports of violations to the agency head 

in accordance with FAR 22.406–8(d). 

Subpart 422.8—Equal Employment 

Opportunity 

422.804 Affirmative action programs. 

422.804–2 Construction. 

The Mission Area senior contracting 

official shall ensure that each 

contracting office awarding nonexempt 

construction contracts maintains a 

current listing of covered geographical 

areas subject to affirmative action 

requirements specifying goals for 

minorities and women in covered 

construction trades, as provided in FAR 

22.804–2(b). 

422.807 Exemptions. 

The HCA oversees exemptions of all 

or part of the requirements of E.O. 

11246 pursuant to FAR 22.807(c). 

Subpart 422.13—Equal Opportunity for 

Veterans 

422.1305 Waivers. 

The Assistant Secretary for 

Administration (ASA) is authorized to 

make the waiver determination in FAR 

22.1305(b) that a contract is essential to 

the national security. The waiver shall 

be prepared for the ASA’s signature and 

submitted by the Mission Area senior 

contracting official to the SPE for 

referral to the ASA. 

Subpart 422.14—Employment of 

Workers With Disabilities 

422.1403 Waivers. 

The ASA is authorized to make the 

waiver determinations under FAR 

22.1403(a) and FAR 22.1403(b) with the 

concurrence of the Deputy Assistant 

Secretary for Federal Contract 

Compliance Programs, Department of 

Labor. The waiver shall be prepared for 

the ASA’s signature and submitted by 

the Mission Area senior contracting 

official to the SPE for referral to the 

ASA. 

Subpart 422.70—Labor Law Violations 

422.7001 Contract clause. 

The clause at AGAR 452.222–70, 

Labor Law Violations, is to be inserted 

in solicitations and contracts that 

exceed the simplified acquisition 

threshold. Contracting officers shall 

work with their Mission Area senior 

contracting official to report violations 

to the HCA within two working days 

following notification by the contractor. 

Assertions pertaining to AGAR 452.222– 

70 are binding and incorporated by 

reference into the contract. 

422.7002 Contract clause. 

The clause at AGAR 452.222–71, Past 

Performance Labor Law Violations, is to 

be inserted in solicitations that exceed 

the simplified acquisition threshold. 

Assertions pertaining to AGAR 452.222– 

71 are binding and incorporated by 

reference into the contract. 

PART 423—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

Subpart 423.4—Use of Recovered Materials 

and Biobased Products 

Sec. 

423.404 Agency affirmative procurement 

programs. 

Subpart 423.5—Drug-Free Workplace 

423.506 Suspension of payments, 

termination of contract, and debarment 

and suspension actions. 

Subpart 423.6—Notice of Radioactive 

Material 

423.601 Requirements. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 423.4—Use of Recovered 

Materials and Biobased Products 

423.404 Agency affirmative procurement 

programs. 

The USDA affirmative procurement 

program (APP) policy applicable to all 

USDA agencies and staff offices is 

hereby established. Components of the 

APP are in the USDA Contracting Desk 

Book, 423.404. 

Subpart 423.5—Drug-Free Workplace 

423.506 Suspension of payments, 

termination of contract, and debarment and 

suspension actions. 

The SPE will submit the request for a 

waiver to the agency head with a 

recommendation for action per FAR 

23.506(e). 

Subpart 423.6—Notice of Radioactive 

Material 

423.601 Requirements. 

The HCA shall establish a system of 

instructions to identify the installation/ 

facility radiation protection officer. 

PART 424—[RESERVED] 

PART 425—FOREIGN ACQUISITION 

Subpart 425.6—American Recovery and 

Reinvestment Act—Buy American Statute— 

Construction Materials 

Sec. 

425.603 Exceptions. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 425.6—American Recovery 

and Reinvestment Act—Buy American 

Statute—Construction Materials 

425.603 Exceptions. 

The Secretary, without power of 

redelegation, has the authority to make 

the necessary determination(s) and 

authorize award(s) of contract(s) in 

accordance with FAR 25.603(b). 

PART 426—[RESERVED] 

SUBCHAPTER E—GENERAL 

CONTRACTING REQUIREMENTS 

PART 427—[RESERVED] 

PART 428—BONDS AND INSURANCE 

Subpart 428.1—Bonds and Other Financial 

Protections 

Sec. 

428.101 Bid guarantees. 

428.101–1 Policy on use. 

428.106 Administration. 

428.106–6 Furnishing information. 

Subpart 428.2—Sureties and Other Security 

for Bonds 

428.203 Individual sureties. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 428.1—Bonds and Other 

Financial Protections 

428.101 Bid guarantees. 

428.101–1 Policy on use. 

The SPE may authorize class waivers 

of the requirement to obtain bid 

guarantees per FAR 28.101–1(c). 

428.106 Administration. 

428.106–6 Furnishing information. 

HCAs or their designees may furnish 

certified copies of bonds and the 

contracts for which they were given as 


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provided by FAR 28.106–6(c). 

Requesters may be required to pay costs 

of certification and copying established 

by the Departmental Fee Schedule for 

records requests (7 CFR part 1, subpart 

A, appendix A). 

Subpart 428.2—Sureties and Other 

Security for Bonds 

428.203 Individual sureties. 

Evidence of possible criminal or 

fraudulent activities by an individual 

surety shall be reported to the OIG in 

accordance with Departmental 

Regulations (1700 series). The Mission 

Area senior contracting official shall 

establish procedures to ensure 

protection and conveyance of deposited 

securities of the types listed in FAR 

28.204–1 through 28.204–3. 

PART 429—[RESERVED] 

PART 430—COST ACCOUNTING 

STANDARDS ADMINISTRATION 

Subpart 430.2—CAS Program Requirements 

Sec. 

430.201 Contract requirements. 

430.201–5 Waiver. 

430.202 Disclosure requirements. 

430.202–2 Impracticality of submission. 

430.202–8 Subcontractor disclosure 

statements. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 430.2—CAS Program 

Requirements 

430.201 Contract requirements. 

430.201–5 Waiver. 

The SPE, without the authority to 

further redelegate, is authorized to 

request the Cost Accounting Standards 

Board to waive the application of the 

Cost Accounting Standards (CAS) in 

accordance with FAR 30.201–5. 

430.202 Disclosure requirements. 

430.202–2 Impracticality of submission. 

The Secretary, without the power to 

redelegate, is authorized to determine, 

in accordance with 48 CFR 9903.202–2, 

that the Disclosure Statement is 

impractical to secure and to authorize 

award without obtaining the Disclosure 

Statement. 

430.202–8 Subcontractor disclosure 

statements. 

The Secretary, without the power to 

redelegate, is authorized to determine, 

in accordance with 48 CFR 9903.202–2, 

that the Disclosure Statement for a 

subcontractor is impractical to secure 

and to authorize award without 

obtaining the Disclosure Statement. 

PART 431—CONTRACT COST 

PRINCIPLES AND PROCEDURES 

Subpart 431.1—Applicability 

Sec. 

431.101 Objectives. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 431.1—Applicability 

431.101 Objectives. 

(a) The SPE is designated as the 

official authorized to give advance 

approval of an individual deviation 

concerning cost principles. 

(b) The SPE is designated as the 

official authorized to give advance 

approval of a class deviation concerning 

cost principles after coordination with 

the Civilian Agency Acquisition Council 

(CAAC). 

PART 432—CONTRACT FINANCING 

Sec. 

432.001 Definitions. 

432.006 Reduction or suspension of 

contract payments upon finding of fraud. 

432.006–5 Reporting. 

432.007 Contract financing payments. 

Subpart 432.1—Non-Commercial Item 

Purchase Financing 

432.114 Unusual contract financing. 

Subpart 432.2—Commercial Item Purchase 

Financing 

432.206 Solicitation provisions and 

contract clauses. 

Subpart 432.3—Loan Guarantees for 

Defense Production 

432.301 Definitions. 

Subpart 432.4—Advance Payments for NonCommercial Items 

432.402 General. 

432.406 Letters of credit. 

432.407 Interest. 

432.412 Contract clause. 

Subpart 432.7—Contract Funding 

432.703 Contract funding requirements. 

432.770 USDA specific funding limitations. 

Subpart 432.8—Assignment of Claims 

432.802 Conditions. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

432.001 Definitions. 

Agency contract finance office is the 

office, other than the office of the 

requisitioner, providing funding or 

performing funding record keeping for 

the contract action. 

Head of agency. For the purposes of 

this part, head of the agency means, 

exclusively, the Secretary or the Deputy 

Secretary. 

Remedy coordination official (RCO). 

The USDA RCO is the Assistant 

Secretary for Administration. 

Responsible fiscal authority is that 

officer in the agency contract finance 

office with the responsibility to ensure 

that adequate funds are available and 

usable for the intended purpose. 

432.006 Reduction or suspension of 

contract payments upon finding of fraud. 

432.006–5 Reporting. 

The annual report required by FAR 

32.006–5 is to be prepared by the SPE 

and submitted to the Secretary within 

90 calendar days after the end of the 

fiscal year. When signed by the 

Secretary, the report is to be maintained 

by the SPE. 

432.007 Contract financing payments. 

The Mission Area senior contracting 

official may prescribe, on a case- by-case 

basis, a shorter period for financing 

payments. 

Subpart 432.1—Non-Commercial Item 

Purchase Financing 

432.114 Unusual contract financing. 

The HCA is authorized to approve 

unusual contract financing. 

Subpart 432.2—Commercial Item 

Purchase Financing 

432.206 Solicitation provisions and 

contract clauses. 

The responsibility for administration 

of the liquidation provisions of a 

contract may not be transferred from the 

contracting officer. 

Subpart 432.3—Loan Guarantees for 

Defense Production 

432.301 Definitions. 

Within this subpart, the agency or 

guaranteeing agency is the HCA and 

may not be redelegated. 

Subpart 432.4—Advance Payments for 

Non-Commercial Items 

432.402 General. 

An HCA is designated as the 

individual responsible for making the 

findings and determination, and for 

approval of the contract terms 

concerning advance payments. 

432.406 Letters of credit. 

The HCA is designated as the 

individual responsible for coordination 

with the Department of Treasury 

concerning letters of credit. 

432.407 Interest. 

(a) The HCA is designated as the 

individual who may authorize, on a 

case-by-case basis, advance payments 

without interest for the contract types 

described in FAR 32.407(d)(1), through 

(4). The signed determination and 


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findings supporting these authorizations 

shall be included in the contract files. 

(b) The SPE is designated as the 

individual who may authorize advance 

payments without interest other than 

those described in paragraph (a) of this 

section. 

432.412 Contract clause. 

The decision to use Alternates I or III 

to FAR 52.232–12 must be supported by 

a determination and finding. 

Subpart 432.7—Contract Funding 

432.703 Contract funding requirements. 

Use the clause AGAR 452.232–70, 

Limitation of Government’s Obligation, 

in solicitations and resultant 

incrementally funded fixed-price 

contracts. 

432.703–3 Contracts crossing fiscal years. 

Funds appropriated to USDA may be 

used for one-year contracts which are to 

be performed in two fiscal years so long 

as the total amount for such contracts is 

obligated in the year for which the 

funds are appropriated (7 U.S.C. 2209c). 

432.770 USDA specific funding limitations. 

The expenditure of any USDA 

appropriation for any consulting service 

through any contract, pursuant to 

section 3109 of Title 5 of the U.S. Code 

shall be limited to those contracts where 

such expenditures are a matter of public 

record and available for public 

inspection, except where otherwise 

provided under existing law, or under 

existing Executive Order issued 

pursuant to existing law (7 U.S.C. 

2225a). 

Subpart 432.8—Assignment of Claims 

432.802 Conditions. 

Written notices of assignment and a 

true copy of the assigned instrument are 

to be sent to the contracting officer 

rather than the agency head per FAR 

32.802(e)(1). Other copies are 

distributed as directed in FAR 32.802. 

PART 433—PROTESTS, DISPUTES 

AND APPEALS 

Subpart 433.1—Protests 

Sec. 

433.102 General. 

Subpart 433.2—Disputes and Appeals 

433.203 Applicability. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 433.1—Protests 

433.102 General. 

The SPE is responsible for 

coordinating the processing of bid 

protests lodged with the Government 

Accountability Office (GAO). 

Subpart 433.2—Disputes and Appeals 

433.203 Applicability. 

The Assistant Secretary for 

Administration is authorized to 

determine the applicability of the 

Contract Disputes Act to contracts with 

foreign governments pursuant to FAR 

33.203. 

SUBCHAPTER F—SPECIAL CATEGORIES 

OF CONTRACTING 

PART 434—MAJOR SYSTEM 

ACQUISITION 

Sec. 

434.001 Definition. 

434.002 Policy. 

434.003 Responsibilities. 

434.005 General requirements. 

434.005–6 Full production. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

434.001 Definition. 

Pursuant to OMB Circular No. A–11 

(Circular A–11) and the definition at 

FAR 2.101, within USDA, a system shall 

be considered a major system if: 

(a) The system has been identified as 

a Major IT Investment pursuant to 

USDA Departmental Regulation 3030– 

008, Definition of Major Information 

Technology Investments, 

(b) The total non-IT acquisition costs 

are estimated to be $50 million or more, 

or 

(c) The system, regardless of 

estimated acquisition or life cycle costs, 

has been specifically designated to be a 

major system by the USDA Acquisition 

Executive or by the Major Information 

Technology Systems Executive. The 

Assistant Secretary for Administration 

(ASA) is the USDA Acquisition 

Executive for major system acquisition 

other than acquisitions of information 

technology. 

434.002 Policy. 

In addition to the policy guidance at 

FAR 34.002 and other parts of the FAR, 

the policies outlined in part 7 of 

Circular A–11 should serve as 

guidelines for all contracting activities 

in planning and developing systems, 

major or otherwise. 

434.003 Responsibilities. 

(a) The key executives of USDA 

(Secretary, Deputy Secretary, Under 

Secretaries and Assistant Secretaries) 

individually or as a group will 

participate in making four key decision 

in each major system acquisition 

process. 

(1) Identification and definition of a 

specific mission need to be fulfilled, the 

relative priority assigned within the 

agency, and the general magnitude of 

resources that may be invested. 

(2) Selection of competitive system 

design concepts to be advanced to a 

test/demonstration phase or 

authorization to proceed with the 

development of a noncompetitive 

(single concept) system. 

(3) Commitment of a system to fullscale development and limited 

production. 

(4) Commitment of a system to full 

production. 

(b) The Chief Information Officer 

(CIO) is the Major Information 

Technology Systems Executive. For 

acquisitions of information technology, 

the CIO will ensure that Circular A–11 

is implemented in USDA and that the 

management objectives of Circular A–11 

are realized. The CIO is responsible for 

designating the program manager for 

each major information technology 

system acquisition, designating an 

acquisition to be a major information 

technology system acquisition, and 

approving the written charter and 

project control system for each major 

information technology system 

acquisition. 

(c) The ASA will ensure that Circular 

A–11 is implemented in USDA and that 

the management objectives of Circular 

A–11 are realized. The ASA is 

responsible for designating the program 

manager for each major system non-IT 

acquisition, designating an acquisition 

to be a major system non-IT acquisition, 

and approving the written charter and 

project control system for each major 

system non-IT acquisition. 

(d) The Mission Area senior 

contracting official must: 

(1) Ensure compliance with the 

requirements of Circular A–11, FAR part 

34, and AGAR part 434. 

(2) Ensure that potential major system 

acquisitions are brought to the attention 

of the USDA Acquisition Executive or 

the Major Information Technology 

Systems Executive, as appropriate. 

(3) Coordinate with Mission Area 

Program Managers (MASPMs) to 

recommend qualified candidates for 

designation as program managers for 

each major system acquisition within 

their jurisdiction. 

(4) Coordinate with MASPMs to verify 

that program managers fulfill their 

responsibilities and discharge their 

duties. 

(5) Cooperate with the ASA and Major 

Information Technology Systems 

Executive in implementing the 

requirements of Circular A–11. 

(e) The program manager is 

responsible for planning and executing 

the major system acquisition, ensuring 


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appropriate coordination with the 

USDA Acquisition Executive, Major 

Information Technology Systems 

Executive, and other key USDA 

executives. 

434.005 General requirements. 

434.005–6 Full production. 

The Secretary or the Secretary’s 

designee for the specific program is the 

agency head for the purposes of FAR 

34.005–6. 

PART 435—[RESERVED] 

PART 436—CONSTRUCTION AND 

ARCHITECT-ENGINEER CONTRACTS 

Subpart 436.2—Special Aspects of 

Contracting for Construction 

Sec. 

436.205 Statutory cost limitations. 

436.209 Construction contracts with 

architect-engineer firms. 

436.213 Special procedures for sealed 

bidding in construction contracting. 

436.213–2 Presolicitation notices. 

Subpart 436.5—Contract Clauses 

436.500 Scope of subpart. 

436.570 Emergency response, fire 

suppression and liability. 

Subpart 436.6—Architect-Engineer Services 

436.602 Selection of firms for architectengineer contracts. 

436.602–1 Selection criteria. 

436.602–5 Short selection process for 

contracts not to exceed the simplified 

acquisition threshold. 

436.603 Collecting data on and appraising 

firm’s qualifications. 

436.609 Contract clauses. 

436.609–1 Design within funding 

limitations. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 436.2—Special Aspects of 

Contracting for Construction 

436.205 Statutory cost limitations. 

(a) When it appears that funds may be 

insufficient for all the desired features 

of construction, the contracting officer 

may provide in the solicitation for a 

base bid item covering the work as 

specified and for one or more additive 

or deductive bid items which 

progressively add or omit specified 

features of the work in a stated order of 

priority. 

(b) In the alternative, the contracting 

officer may use the policies and 

procedures found in FAR 17.2, Options. 

436.209 Construction contracts with 

architect-engineer firms. 

The HCA is authorized to approve a 

contract to construct a project, in whole 

or in part, to the firm that designed the 

project (inclusive of its subsidiaries or 

affiliates). 

436.213 Special procedures for sealed 

bidding in construction contracting. 

436.213–2 Presolicitation notices. 

The authority to waive a 

presolicitation notice on any 

construction requirement when the 

proposed contract is expected to exceed 

the simplified acquisition threshold is 

restricted to the HCA. 

Subpart 436.5—Contract Clauses 

436.500 Scope of subpart. 

This subpart prescribes clauses for 

insertion in USDA solicitations and 

contracts for construction and for 

dismantling, demolition, or removal of 

improvements or structures. The 

contracting officer shall use the clauses 

as prescribed in contracts that exceed 

the simplified acquisition threshold. 

The contracting officer may use the 

clauses if the contract amount is 

expected to be at or below the 

simplified acquisition threshold. 

436.570 Emergency response, fire 

suppression and liability. 

The contracting officer shall insert the 

clause at AGAR 452.236–70, Emergency 

Response, Fire Suppression and 

Liability, in Integrated Resource Service 

Contracts (IRSCs) awarded for the Forest 

Service. The clause AGAR 452.236–70, 

Emergency Response, Fire Suppression 

and Liability, is optional for non-IRSCs. 

Subpart 436.6—Architect-Engineer 

Services 

436.602 Selection of firms for architectengineer contracts. 

436.602–1 Selection criteria. 

The Mission Area senior contracting 

official is authorized to approve the use 

of design competition under the 

conditions in FAR 36.602–1(b). 

436.602–2 Evaluation boards. 

The Mission Area senior contracting 

official shall establish written 

procedures for providing permanent or 

ad hoc architect-engineer evaluation 

boards as prescribed in FAR 36.602–2. 

436.602–5 Short selection process for 

contracts not to exceed the simplified 

acquisition threshold. 

The Mission Area senior contracting 

official may include either or both 

procedures in FAR 36.602–5(a) and (b) 

in the procedures for evaluation boards. 

436.603 Collecting data on and appraising 

firm’s qualifications. 

Mission Area senior contracting 

officials for Mission Areas that require 

architect- engineer services shall 

establish procedures to comply with the 

requirements of FAR 36.603. 

436.609 Contract clauses. 

436.609–1 Design within funding 

limitations. 

(a) Should the HCA appoint a 

designee to make the determination in 

FAR 36.609–1(c)(1), the appointment 

may be to one no lower than the official 

authorized to commit program funds for 

the work being acquired. 

(b) The contracting officer, with the 

advice of appropriate technical 

representatives, may make the 

determination in FAR 36.609–1(c)(2) or 

(3). 

PART 437—SERVICE CONTRACTING 

Subpart 437.1—Service Contracts—General 

Sec. 

437.104 Personal services contracts. 

Subpart 437.2—Advisory and Assistance 

Services 

437.204 Guidelines for determining 

availability of personnel. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 437.1—Service Contracts— 

General 

437.104 Personal services contracts. 

USDA has the following specific 

statutory authorities to contract for 

personal services: 

(a) Section 706(a) of the Organic Act 

of 1944 (7 U.S.C. 2225) authorizes 

contracting with persons or 

organizations on a temporary basis, 

without regard to civil service 

compensation classification standards 

in 5 U.S.C., chapter 51 and subchapter 

III of chapter 53, Provided: 

(1) That no expenditures shall be 

made unless specifically provided for in 

the applicable appropriation, and 

(2) Expenditures do not exceed any 

limitations prescribed in the 

appropriation. 

(b) Title 7 U.S.C., section 1627 

authorizes the Secretary of Agriculture 

to contract with technically qualified 

persons, firms or organizations to 

perform research, inspection, 

classification, technical, or other special 

services, without regard to the civilservice laws, Provided: it is for a 

temporary basis and for a term not to 

exceed six months in any fiscal year. 

Subpart 437.2—Advisory and 

Assistance Services 

437.204 Guidelines for determining 

availability of personnel. 

The HCA is authorized to request the 

use of non-Government evaluators in 


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proposal evaluations. Each decision 

shall be supported by a written 

determination in accordance with FAR 

37.204. 

PARTS 438 THROUGH 441— 

[RESERVED] 

SUBCHAPTER G—CONTRACT 

MANAGEMENT 

PARTS 442 THROUGH 444— 

[RESERVED] 

PART 445—GOVERNMENT PROPERTY 

Subpart 445.1—General 

Sec. 

445.103 General. 

Subpart 445.3—Authorizing the Use and 

Rental of Government Property 

445.301 Use and rental. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 445.1—General 

445.103 General. 

The Mission Area senior contracting 

official is authorized to make 

determinations for charging rent on the 

basis of use under the Use and Charges 

clause in FAR 52.245–9 as prescribed in 

FAR 45.103(a)(5). 

Subpart 445.3—Authorizing the Use 

and Rental of Government Property 

445.301 Use and rental. 

(a) The Mission Area senior 

contracting official is authorized to 

make determinations for providing 

facilities to contractors as prescribed in 

FAR 45.301(f). 

(b) Requests for non-Government use 

of plant equipment as prescribed in FAR 

45.301 shall be submitted by the HCA 

to the SPE for approval. 

PARTS 446 THROUGH 448— 

[RESERVED] 

PART 449—TERMINATION OF 

CONTRACTS 

Subpart 449.5—Contract Termination 

Clauses 

Sec. 

449.501 General. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 449.5—Contract Termination 

Clauses 

449.501 General. 

Use of special purpose termination 

clauses pursuant to the authority of FAR 

49.501 shall be approved in advance by 

the HCA. 

PART 450—EXTRAORDINARY 

CONTRACTUAL ACTIONS AND THE 

SAFETY ACT 

Subpart 450.1—Extraordinary Contractual 

Actions 

Sec. 

450.100 Definitions. 

450.102 Delegation of and limitations on 

exercise of authority. 

450.102–1 Delegation of authority. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 450.1—Extraordinary 

Contractual Actions 

450.100 Definitions. 

Approving authority, as used in this 

part, means the Assistant Secretary for 

Administration. 

Secretarial level, as used in this part 

means the Assistant Secretary for 

Administration. 

450.102 Delegation of and limitations on 

exercise of authority. 

450.102–1 Delegation of authority. 

The Assistant Secretary for 

Administration is authorized to approve 

all actions under FAR part 50 except 

indemnification actions listed in FAR 

50.102–1(d), which must be approved 

by the Secretary, without power of 

redelegation. 

PART 451—[RESERVED] 

SUBCHAPTER H—CLAUSES AND FORMS 

PART 452—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

Subpart 452.2—Texts of Provisions and 

Clauses 

Sec. 

452.204–70 Modification for Contract 

Closeout 

452.204–71 Personal Identity Verification of 

Contractor Employees. 

452.222–70 Labor Law Violations. 

452.222–71 Past Performance Labor Law 

Violations. 

452.232–70 Limitation of Government’s 

Obligation. 

452.236–70 Emergency Response, Fire 

Suppression, and Liability. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

Subpart 452.2—Texts of Provisions 

and Clauses 

452.204–70 Modification for Contract 

Closeout. 

As prescribed in AGAR 404.804, 

413.302–5, and 416.102, insert the 

following clause: 

Modification for Contract Closeout (Month 

Year) 

Upon contract closeout for contracts 

utilizing anything other than cost 

reimbursement (i.e., Simplified Acquisition 

Procedures (SAP), non-SAP, and/or not Firm 

Fixed Price): if unobligated funds in the 

amount of $1000 or less remain on the 

contract, the Contracting Officer (CO) shall 

issue a unilateral modification for 

deobligation. The contractor will receive a 

copy of the modification but will not be 

required to provide a signature. The CO shall 

immediately proceed with contract closeout 

upon completion of the period of 

performance, receipt and acceptance of 

supplies or services, and final payment. 

Upon contract closeout for contracts 

utilizing SAP: if unobligated funds of more 

than $1000 remain on the contract, the CO 

shall issue a bilateral modification for 

deobligation. The contractor will receive a 

copy of the modification and will be required 

to provide a signature. (The CO may also 

request a ‘‘Contractor Release of Claims’’ be 

completed by the contractor, although not 

required for contracts and orders using SAP 

procedures.) If the bilateral modification and 

Release of Claims are not returned to the CO 

within 60 days, the CO shall release the 

modification as unilateral and proceed with 

contract closeout upon completion of the 

period of performance, receipt and 

acceptance of supplies or services, and final 

payment. 

Upon contract closeout for contracts 

utilizing anything other than cost 

reimbursement (i.e., non-SAP and/or not 

FFP): if unobligated funds of more than 

$1000 remain on the contract, the CO shall 

issue a bilateral modification for 

deobligation. The contractor will receive a 

copy of the modification and a ‘‘Contractor 

Release of Claims’’ and will be required to 

provide a signature on both forms. If the 

bilateral modification and Release of Claims 

are not returned to the CO within 120 days, 

the CO shall release the modification as 

unilateral and proceed with contract closeout 

upon completion of the period of 

performance, receipt and acceptance of 

supplies or services, and final payment. 

(End of Clause) 

452.204–71 Personal Identity Verification 

of Contractor Employees. 

As prescribed in AGAR 404.1303, 

insert the following clause: 

Personal Identity Verification of Contractor 

Employees (Month Year) 

(a) The contractor shall comply with the 

personal identity verification (PIV) policies 

and procedures established by the United 

States Department of Agriculture (USDA) 

Directives 4620–002 series. 

(b) Should the USDA Directives 4620–002 

require the exclusion of a contractor’s 

employee, the contracting officer will notify 

the contractor in writing. 

(c) The contractor must appoint a 

representative to manage compliance with 

the PIV policies established by the USDA 

Directives 4620–002 and to maintain a list of 

employees eligible for a USDA LincPass 

required for performance of the work. 


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(d) The responsibility of maintaining a 

sufficient workforce remains with the 

contractor. Contractor employees may be 

barred by the Government from performance 

of work should they be found ineligible or to 

have lost eligibility for a USDA LincPass. 

Failure to maintain a sufficient workforce of 

employees eligible for a USDA LincPass may 

be grounds for termination of the contract. 

(e) The contractor shall insert this clause 

in all subcontracts when the subcontractor is 

required to have routine unaccompanied 

physical access to a Federally controlled 

facility and/or routine unaccompanied access 

to a Federally controlled information system. 

(f) The PIV Sponsor for this contract is a 

designated program point of contact, which 

in most cases is the COR, unless otherwise 

specified in this contract. The PIV Sponsor 

will be available to receive contractor 

identity information from [hours and days to 

be added by CO] to [hours and days to be 

added by CO] at [office address for 

registration to be added by CO]. The 

Government will notify the contractor if there 

is a change in the PIV Sponsor, the office 

address, or the office hours for registration; 

however, it is the contractor’s responsibility 

to meet all aspects of paragraphs (c), (d), and 

(e). 

(End of Clause) 

452.222–70 Labor Law Violations. 

As prescribed in AGAR 422.7001, 

insert the following clause: 

Labor Law Violations (Month Year) 

In accepting this contract award, the 

contractor certifies that it is in compliance 

with all applicable labor laws and that, to the 

best of its knowledge, its subcontractors of 

any tier, and suppliers, are also in 

compliance with all applicable labor laws. 

The Department of Agriculture will 

vigorously pursue corrective action against 

the contractor and/or any tier subcontractor 

(or supplier) in the event of a violation of 

labor law(s) made in the provision of 

supplies and/or services under this or any 

other government contract. The contractor is 

responsible for promptly reporting to the 

contracting officer if and when adjudicated 

evidence of noncompliance occurs. The 

Department of Agriculture considers 

certification under this clause to be a 

certification for purposes of the False Claims 

Act. The Department will cooperate as 

appropriate regarding labor laws applicable 

to the contract which are enforced by other 

agencies. Applicable Labor Laws include: 

(a) The Fair Labor Standards Act; 

(b) The Occupational Safety and Health 

Act; 

(c) The Migrant and Seasonal Agricultural 

Workers Protection Act; 

(d) The National Labor Relations Act; 

(e) The Davis-Bacon Act; 

(f) The Service Contract Act; 

(g) Executive Order 11246 (Equal 

Employment Opportunity); 

(h) Section 503 of the Rehabilitation Act of 

1973; 

(i) The Vietnam Era Veterans’ 

Readjustment Assistance Act; 

(j) The Family and Medical Leave Act; 

(k) Title VII of the Civil Rights Act of 1964; 

(l) The Americans with Disabilities Act of 

1990; 

(m) The Age Discrimination in 

Employment Act of 1967; 

(n) Executive Order 13658 of February 12, 

2014 (Establishing a Minimum Wage for 

Contractors); 

(o) Equivalent State laws, as defined by the 

Secretary of Labor in guidance. 

(p) Executive Order 13627 (Strengthening 

Protections Against Trafficking in Persons in 

Federal Contracts) 

The contractor and any subcontractors 

shall incorporate into lower tier subcontracts 

a requirement that the information described 

above be provided to the contractor. 

(End of clause) 

452.222–71 Past Performance Labor Law 

Violations. 

As prescribed in AGAR 422.7002, 

insert the following clause: 

Past Performance Labor Law Violations 

(Month Year) 

In submitting this offer, the offeror 

(prospective contractor) certifies to the best 

of the offeror’s knowledge and belief, that 

they, and any subcontractor at any tier, are 

in compliance with all previously required 

corrective actions for adjudicated labor law 

violations (see applicable labor laws in 

452.222–70). 

Prior to receiving an award, a contractor 

shall provide a list of the specific violations 

of the legal requirements listed above, if any, 

and be given an opportunity to disclose any 

steps taken to correct the violations of, or 

improve compliance with, such legal 

requirements. The contracting officer in 

coordination with their Mission Area senior 

contracting official will consider any 

information provided and determine whether 

a contractor is a responsible source that has 

a satisfactory record of integrity and business 

ethics. The contracting officer shall ensure 

that contractors update the information 

provided every 6 months and that they 

require their subcontractors to update them 

on the aforementioned information every 6 

months. 

The contractor and any subcontractors 

shall incorporate into lower-tier subcontracts 

a requirement that the information described 

above be provided to the contractor. 

(End of Clause) 

452.232–70 Limitation of Government’s 

Obligation. 

As prescribed in AGAR 432.703, 

insert the following clause: 

Limitation of Government’s Obligation 

(Month Year) 

(a) Contract line item(s) listed below is/are 

incrementally funded. For this/these item(s), 

the sum of $ [Contracting Officer insert after 

negotiations] of the total price is presently 

available for payment and allotted to this 

contract. An allotment schedule is set forth 

in paragraph (j) below. 

Line Item Price Currently Allotted Funding 

Funds Required for Complete Funding 

(b) For item(s) identified in paragraph (a) 

as not fully funded, the Contractor agrees to 

perform up to the point at which the total 

amount payable by the Government, 

including reimbursement of costs in the 

event of termination of those item(s) for the 

Government’s convenience, approximates the 

total amount currently allotted to the 

contract. The Contractor is not authorized to 

continue work on those item(s) beyond that 

point. The Government will not be obligated 

in any event to reimburse the Contractor 

more than the amount allotted to the contract 

for those item(s) regardless of anything to the 

contrary in the clause entitled ‘‘Termination 

for Convenience of the Government’’. The 

total amount payable by the Government in 

the event of termination of applicable 

contract line item(s) for convenience 

includes costs, profit, and estimated 

termination settlement costs for those item(s). 

(c) Notwithstanding the dates specified in 

the allotment schedule in paragraph (j), the 

Contractor will notify the contracting officer 

in writing at least [30, 60, or 90, as 

appropriate] days prior to the date when, in 

the Contractor’s best judgment, the work will 

reach the point at which the total amount 

payable by the Government, including any 

cost for termination for convenience, will 

approximate 85 percent of the total amount 

currently allotted to the contract for 

performance of the applicable item(s). The 

notification will state (1) the estimated date 

when that point will be reached and (2) an 

estimate of additional funding, if any, needed 

to continue performance of applicable line 

items up to the next scheduled date for 

allotment of funds identified in paragraph (j), 

or to a mutually agreed upon substitute date. 

The notification will also advise the 

contracting officer of the estimated amount of 

additional funds that will be required for the 

timely performance of the item(s) funded, for 

a subsequent period as may be specified in 

the allotment schedule in paragraph (j) or 

otherwise agreed to by the parties. If after 

such notification additional funds are not 

allotted by the date identified in the 

Contractor’s notification, or by an agreed 

substitute date, the contracting officer will 

terminate any item(s) for which additional 

funds have not been allotted, pursuant to the 

clause of this contract entitled ‘‘Termination 

for Convenience of the Government’’. 

(d) When additional funds are allotted for 

continued performance of the contract line 

item(s) identified in paragraph (a) above, the 

parties will agree as to the period of contract 

performance which will be covered by the 

funds. The provisions of paragraphs (b) 

through (d) will apply similarly to the 

additional allotted funds and agreed 

substitute date, and the contract will be 

modified accordingly. 

(e) If, solely by reason of failure of the 

Government to allot additional funds, by the 

dates indicated below, in amounts sufficient 

for timely performance of the contract line 

item(s) identified in paragraph (a), the 

Contractor incurs additional costs or is 

delayed in the performance of the work 

under this contract and if additional funds 

are allotted, an equitable adjustment will be 


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made in the price or prices (including 

appropriate target, billing, and ceiling prices 

where applicable) of the item(s), or in the 

time of delivery, or both. Failure to agree to 

any such equitable adjustment hereunder 

will be a dispute concerning a question of 

fact within the meaning of the clause entitled 

‘‘Disputes.’’ 

(f) The Government may at any time prior 

to termination allot additional funds for the 

performance of the contract line item(s) 

identified in paragraph (a) above. 

(g) The termination provisions do not limit 

the rights of the Government under the 

clauses entitled ‘‘Default’’ and ‘‘Termination 

for Cause’’. The provisions are limited to the 

work and allotment of funds for the contract 

line item(s) set forth in paragraph (a) above. 

These terms no longer apply once the 

contract is fully funded except with regard to 

the rights or obligations of the parties 

concerning equitable adjustments negotiated 

under paragraphs (e) and (f) above. 

(h) Nothing herein affects the right of the 

Government to terminate this contract 

pursuant to the clause of this contract 

entitled ‘‘Termination for Convenience of the 

Government’’. 

(i) Nothing herein shall be construed as 

authorization of voluntary services whose 

acceptance is otherwise prohibited under 31 

U.S.C. 1342. 

(j) The parties agree that the Government 

will allot funds to this contract in accordance 

with the following schedule: 

On execution of contract .................... $ 

(month) (day), (year) ........................... $ 

(month) (day), (year) ........................... $ 

(month) (day), (year) ........................... $ 

(End of Clause) 

452.236–70 Emergency Response, Fire 

Suppression, and Liability. 

As prescribed in AGAR 436.570, the 

following clause shall be used in Forest 

Service Integrated Resource Service 

Contracts (IRSCs), and is optional for 

non-IRSCs: 

Emergency Response, Fire Suppression and 

Liability (Month Year) 

(a) Contractor’s Responsibility for 

Responding to Emergencies. When directed 

by the contracting officer, the Contractor 

shall allow the Government to temporarily 

use employees and equipment from the work 

site for emergency work (anticipated to be 

restricted to firefighting). This is considered 

to be within the general scope of the contract. 

An equitable adjustment for the temporary 

use of employees and equipment will be 

made under the CHANGES clause, FAR 

52.243–4. 

(b) Contractor’s Responsibility for Fire 

Fighting. The Contractor, under the 

provisions of FAR 52.236–9, Protection of 

Existing Vegetation, Structures, Equipment, 

Utilities, and Improvements, shall 

immediately extinguish all fires on the work 

site other than those fires in use as a part of 

the work. The Contractor may be held liable 

for all damages and for all costs incurred by 

the Government for labor, subsistence, 

equipment, supplies, and transportation 

deemed necessary to control or suppress a 

fire set or caused by the Contractor or the 

Contractor’s agents, subcontractors, or 

employees subject to the fire classifications 

listed in subsection (c). 

(c) Fire Suppression Costs. The 

Contractor’s obligations for cost of fire 

suppression vary according to three 

classifications of fires as follows: 

(1) Operations Fire. An ‘‘operations fire’’ is 

a fire caused by the Contractor’s operations 

other than a negligent fire. The Contractor 

agrees to reimburse the Forest Service for 

such cost for each operations fire, subject to 

a maximum dollar amount of [Contracting 

Officer insert amount]. The cost of the 

Contractor’s actions, supplies, and 

equipment expended or used on suppressing 

any such fire, or otherwise provided at the 

request of Forest Service, shall be credited 

toward such maximum. If the Contractor’s 

actual cost exceeds the contractor’s 

maximum obligation stated above, the Forest 

Service shall reimburse the contractor for the 

excess. 

(2) Negligent Fire. A ‘‘negligent fire’’ is a 

fire caused by the negligence or fault of the 

Contractor’s operations including, but not 

limited to, one caused by smoking by persons 

engaged in the Contractor’s operations during 

the course of their employment, or during 

rest or lunch periods; or if the Contractor’s 

failure to comply with requirements under 

this contract results in a fire starting or 

permits a fire to spread. Damages and the 

cost of suppressing negligent fires shall be 

borne by the Contractor. 

(3) Other Fires on Contract Area. The 

Forest Service shall pay the Contractor, at 

firefighting rates common in the area or at 

prior agreed rates, for equipment or 

personnel furnished by the Contractor at the 

request of the Forest Service, on any fire on 

the contract area other than an operations fire 

or a negligent fire. 

(d) Contractor’s Responsibility for 

Notification in Case of Fire. The Contractor 

shall immediately notify the Government of 

any fires sighted on or in the vicinity of the 

work site. 

(e) Performance by the Contractor. Where 

the Contractor’s employees, agents, 

contractors, subcontractors, or their 

employees or agents perform the Contractor’s 

operations in connection with fire 

responsibilities, the Contractor’s obligations 

shall be the same as if performance was by 

the Contractor. 

(f) State Law. The Contractor shall not be 

relieved by the terms of this contract of any 

liability to the United States for fire 

suppression costs recovered in an action 

based on State law, except for such costs 

resulting from operations fires. Amounts due 

to the Contractor for firefighting expenditures 

on operations fires shall not be withheld 

pending settlement of any such claim or 

action based on State law. 

(End of Clause) 

PARTS 453 THROUGH 469— 

[RESERVED] 

SUBCHAPTER I—FOOD ASSISTANCE 

PROGRAMS 

PART 470—COMMODITY 

ACQUISITIONS 

Sec. 

470.000 Scope of part. 

470.101 Definitions. 

470.102 Policy. 

470.103 United States origin of agricultural 

products. 

470.201 Acquisition of commodities and 

freight shipment for Foreign Agricultural 

Service (FAS) programs. 

470.202 Acquisition of commodities for 

United States Agency for International 

Development (USAID) programs. 

470.203 Cargo preference. 

Authority: 5 U.S.C. 301 and 40 U.S.C. 

486(c). 

470.000 Scope of part. 

This part sets forth the policies, 

procedures and requirements governing 

the procurement of agricultural 

commodities by the Department of 

Agriculture for use: 

(a) Under child nutrition programs 

such as the National School Lunch 

Program, The Emergency Food 

Assistance Program, Commodity 

Supplemental Food Program, Food 

Distribution Program on Indian 

Reservations, and any other domestic 

food assistance program. 

(b) Under Title II of the Food for 

Peace Act (7 U.S.C. 1721 et seq.), the 

Food for Progress Act of 1985, the 

McGovern-Dole International Food for 

Education and Child Nutrition Program, 

and any other international food 

assistance program. 

470.101 Definitions. 

The following definitions are 

applicable to this subpart: 

Commingled product means grains, 

oilseeds, rice, pulses, other similar 

commodities and the products of such 

commodities, when such commodity or 

product is normally stored on a 

commingled basis in such a manner that 

the commodity or product produced in 

the United States cannot be readily 

distinguished from a commodity or 

product not produced in the United 

States. 

Foreign Agriculture Service (FAS) 

means such agency located within the 

Department of Agriculture. 

Free alongside ship (f.a.s.) (* * named 

port of shipment) means a term of sale 

where the seller fulfills its obligation to 

deliver when the goods have been 

placed alongside the vessel on the quay 


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or in lighters at the named port of 

shipment. The buyer bears all costs and 

risks of loss of or damage to the goods 

from that moment. 

Grantee organization means an 

organization which will receive 

commodities from the United States 

Agency for International Development 

under Title II of the Food for Peace Act 

(7 U.S.C. 1721 et seq.) or from the 

Foreign Agricultural Service under the 

Food for Progress Act of 1985; the 

McGovern-Dole International Food for 

Education and Child Nutrition Program; 

and any other international food 

assistance program. 

Ingredient means spices, vitamins, 

micronutrients, desiccants, and 

preservatives when added to an 

agricultural commodity product. 

Last contract lay day means the last 

day specified in an ocean freight 

contract by which the carriage of goods 

must start for contract performance. 

Lowest landed cost means with 

respect to an agricultural product 

acquired under this part, the lowest 

aggregate cost for the acquisition of such 

product and the shipment of such 

product to a foreign destination. 

Multi-port or multi-trip voyage charter 

means the charter of an ocean carrier in 

which the carrier will stop at two or 

more ports to discharge cargo. 

470.102 Policy. 

(a) Policy. USDA follows the policies 

and procedures set forth in the FAR as 

supplemented by the AGAR, in the 

procurement of agricultural 

commodities and products of 

agricultural commodities that are used 

in domestic and international food 

assistance and nutrition programs. 

(b) Electronic submission. To the 

maximum extent possible, the use of 

electronic submission of solicitationrelated documents shall be used with 

respect to the acquisition of agricultural 

commodities and related freight. 

However, to the extent that a solicitation 

allows for the submission in paper or 

hard copy format in addition to 

information in an electronic format and 

there is a discrepancy in such 

submissions, the information submitted 

in paper or hard copy format shall 

prevail unless the electronic submission 

states that a specific existing written 

term is superseded by the electronic 

submission. 

(c) Freight. With respect to the 

acquisition of freight for the shipment of 

agricultural commodities and products 

of agricultural commodities, the 

provisions of the FAR, including part 

47, shall be utilized as applicable and 

various types of services to be obtained 

may include multi-trip voyage charters. 

470.103 United States origin of agricultural 

products. 

(a) Products for use in international 

food assistance programs. As provided 

by 7 U.S.C. 1732(2) and 1736o–1(a) 

commodities and the products of 

agricultural commodities acquired for 

use in international feeding and 

development programs shall be 

products of United States origin. A 

product shall not be considered to be a 

product of the United States if it 

contains any ingredient that is not 

produced in the United States if that 

ingredient is: 

(1) Produced in the United States; and 

(2) Commercially available in the 

United States at fair and reasonable 

prices from domestic sources. 

(b) Products for use in domestic food 

assistance programs. Commodities and 

the products of agricultural 

commodities acquired by USDA for use 

in domestic food assistance programs 

shall be a product of the United States, 

except as may otherwise be required by 

law, and shall be considered to be such 

a product if it is grown, processed, and 

otherwise prepared for sale or 

distribution exclusively in the United 

States except with respect to ingredients 

as defined above. Ingredients from nondomestic sources will be allowed to be 

utilized as a United States product if 

such ingredients are not otherwise: 

(1) Produced in the United States; and 

(2) Commercially available in the 

United States at fair and reasonable 

prices from domestic sources. 

(c) Commingled product. (1) Except as 

provided in paragraph (c)(2) of this 

section, a commingled product shall be 

considered to be a product of the United 

States if the offeror can establish that 

the offeror has in inventory at the time 

the contract for the commodity or 

product is awarded to the offeror, or 

obtains during the contract performance 

period specified in the solicitation, or a 

combination thereof, a sufficient 

quantity of the commodity or product 

that was produced in the United States 

to fulfill the contract being awarded, 

and all unfulfilled contracts that the 

offeror entered into to provide such 

commingled product to the United 

States. 

(2) To the extent USDA has 

determined a commodity is one that is 

generally commingled but is also one 

which can be readily stored on an 

identity preserved basis with respect to 

its country of origin, USDA may require 

that the commodity procured shall be of 

100 percent United States origin. 

(d) Product derived from animals. 

With respect to the procurement of 

products derived from animals, the 

solicitation will set forth any specific 

requirement that is applicable to the 

country in which the animal was bred, 

raised, slaughtered or further processed. 

470.201 Acquisition of commodities and 

freight shipment for Foreign Agricultural 

Service (FAS) programs. 

(a) Lowest landed cost and delivery 

considerations. 

(1) Except as provided in paragraphs 

(a)(3) and (4) of this section, in contracts 

for FAS for commodities and related 

freight shipment for delivery to foreign 

destinations, the contracting officer 

shall consider the lowest landed cost of 

delivering the commodity to the 

intended destination. This lowest 

landed cost determination will be 

calculated on the basis of rates and 

service for that portion of the 

commodities being purchased that is 

determined is necessary and practicable 

to meet cargo preference requirements 

and on an overall (foreign and U.S. flag) 

basis for the remaining portion of the 

commodities being procured and the 

additional factors set forth in this 

section. Accordingly, the solicitations 

issued with respect to a commodity 

procurement, or a related freight 

procurement will specify that in the 

event an offer submitted by a party is 

the lowest offered price, the contracting 

officer reserves the right to reject such 

offer if the acceptance of another offer 

for the commodity or related freight, 

when combined with other offers for 

commodities or related freight, results 

in a lower landed cost. 

(2) USDA may contact any port prior 

to award to determine the port’s cargo 

handling capabilities, including the 

adequacy of the port to receive, 

accumulate, handle, store, and protect 

the cargo. Factors considered in this 

determination may include, but not be 

limited to: The adequacy of building 

structures, proper ventilation, freedom 

from insects and rodents, cleanliness, 

and overall good housekeeping and 

warehousing practices. USDA may 

consider the use of another coastal range 

or port if a situation exists at a port that 

may adversely affect the ability of USDA 

to have the commodity delivered in a 

safe and timely manner. Such situations 

include: 

(i) A port is congested; 

(ii) Port facilities are overloaded; 

(iii) A vessel would not be able to 

dock and load cargo without delay; 

(iv) Labor disputes or lack of labor 

may prohibit the loading of the cargo 

onboard a vessel in a timely manner; or 

(v) Other similar situation that may 

adversely affect the ability of USDA to 

have the commodity delivered in a 

timely manner. 


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(3) Use of other than lowest landed 

cost. In order to ensure that 

commodities are delivered in a timely 

fashion to foreign destinations and 

without damage, the contracting officer 

may award an acquisition without 

regard to the lowest land cost process 

set forth in paragraph (a)(1) of this 

section if: 

(i) The solicitation specifies that the 

lowest land cost process will not be 

followed in the completion of the 

contract; or 

(ii) After issuance of the solicitation, 

it is determined that: 

(A) Internal strife at the foreign 

destination or urgent humanitarian 

conditions threatens the lives of persons 

at the foreign destination; 

(B) A specific port’s cargo handling 

capabilities (including the adequacy of 

the port to receive, accumulate, handle, 

store, and protect commodities) and 

other similar factors may adversely 

affect the delivery of such commodities 

through damage or untimely delivery. 

Such similar factors include, but are not 

limited to: Port congestion; overloaded 

facilities at the port; vessels not being 

able to dock and load cargo without 

delay due to conditions at the port; 

labor disputes or lack of labor may 

prohibit the loading of the cargo 

onboard a vessel in a timely manner; 

and the existence of inadequate or 

unsanitary warehouse and other 

supporting facilities; 

(C) The total transit time of a carrier, 

as it relates to a final delivery date at the 

foreign destination may impair the 

timely delivery of the commodity; 

(D) Other similar situations arise that 

materially affect the administration of 

the program for which the commodity 

or freight is being procured; or 

(E) The contracting officer determines 

that extenuating circumstances preclude 

awards on the basis of lowest-landed 

cost, or that efficiency and cost-savings 

justify use of types of ocean service that 

would not involve an analysis of freight. 

However, in all such cases, commodities 

would be transported in compliance 

with cargo preference requirements. 

Other types of services may include, but 

are not limited to, multi-trip voyage 

charters, indefinite delivery/indefinite 

quantity (IDIQ), delivery cost and freight 

(C & F), delivery cost insurance and 

freight (CIF), and indexed ocean freight 

costs. 

(4) If the contracting officer 

determines that action may be 

appropriate under paragraph (a)(3) of 

this section, prior to the acceptance of 

any applicable offer, the contracting 

officer will provide to the Head of 

Contracting Activity or Designee a 

written request to obtain commodities 

and freight in a manner other than on 

a lowest landed cost basis consistent 

with title 48 of the CFR. This request 

shall include a statement of the reasons 

for not using lowest landed cost basis. 

The HCA, or the designee one level 

above the contracting officer, may either 

accept or reject this request and shall 

document this determination. 

(b) Multiple offers or delivery points. 

If more than one offer for the sale of 

commodities is received or more than 

one delivery point has been designated 

in such offers, in order to achieve a 

combination of a freight rate and 

commodity award that produces the 

lowest landed cost for the delivery of 

the commodity to the foreign 

destination, the contracting officer shall 

evaluate offers submitted on a delivery 

point by delivery point basis; however, 

consideration shall be given to 

prioritized ocean transport service in 

determining lowest landed cost. 

(c) Freight shipping and rates. (1) In 

determining the lowest-landed cost, 

USDA shall use the freight rates offered 

in response to solicitations issued by 

USDA or, if applicable, the grantee 

organization. 

(2) Freight rates offered must be 

submitted as specified in the solicitation 

issued by USDA or, if applicable, the 

grantee organization. Any such 

solicitation issued by a grantee 

organization must contain the following 

elements: 

(i) If directed by USDA, include a 

closing time for the receipt of written 

freight offers and state that late written 

freight offers will not be considered; 

(ii) Provide that freight offers are 

required to have a canceling date no 

later than the last contract lay day 

specified in the solicitation; 

(iii) Provide the same deadline for 

receipt of written freight offers from 

both U.S. flag vessel and non-U.S. flag 

vessels; and 

(iv) Be received and opened prior to 

any related offer for acquisition of 

commodities to be shipped. 

(3) USDA may require organizations 

that will receive commodities from 

USDA to submit information relating to 

the capacity of a U.S. port, or, if 

applicable, a terminal, prior to the 

acquisition of such commodities or 

freight. 

(d) Freight rate notification. If USDA 

is not the party procuring freight with 

respect to a shipment of an agricultural 

commodity for delivery to a foreign 

destination, the organization that will 

receive commodities from USDA, or its 

shipping agent, shall be notified by 

USDA of the vessel freight rate used in 

determining the commodity contract 

award and the organization will be 

responsible for finalizing the charter or 

booking contract with the vessel 

representing the freight rate. 

470.202 Acquisition of commodities for 

United States Agency for International 

Development (USAID) programs. 

(a) Lowest landed cost and delivery 

considerations. (1) Except as provided 

in paragraphs (a)(3) and (e)(2) of this 

section, with respect to the acquisition 

of agricultural commodities for delivery 

to foreign destinations and related 

freight to transport such commodities 

under Title II of Public Law 83–480, 

contracts will be entered into in a 

manner that will result in the lowest 

landed cost of such commodity delivery 

to the intended destination. This lowest 

landed cost determination shall be 

calculated on the basis of rates and 

service for that portion of the 

commodities being purchased that is 

determined is necessary and practicable 

to meet cargo preference requirements 

and on an overall (foreign and U.S. flag) 

basis for the remaining portion of the 

commodities being procured and the 

additional factors set forth in this 

section. Accordingly, the solicitations 

issued with respect to a commodity 

procurement, or a freight procurement 

will specify that in the event an offer 

submitted by a party is the lowest 

offered price, the contracting officer 

reserves the right to reject such offer if 

the acceptance of another offer for the 

commodity or freight, when combined 

with other offers for commodities or 

freight, results in a lower landed cost. 

(2) USDA may contact any port prior 

to award to determine the port’s cargo 

handling capabilities, including the 

adequacy of the port to receive, 

accumulate, handle, store, and protect 

the cargo. Factors which will be 

considered in this determination will 

include, but not be limited to, the 

adequacy of building structures, proper 

ventilation, freedom from insects and 

rodents, cleanliness, and overall good 

housekeeping and warehousing 

practices. USDA may consider the use 

of another coastal range or port if a 

situation exists at a port that may 

adversely affect the ability of USDA to 

have the commodity delivered in a safe 

and/or timely manner. Such situations 

include: 

(i) A port is congested; 

(ii) Port facilities are overloaded; 

(iii) A vessel would not be able to 

dock and load cargo without delay; 

(iv) Labor disputes or lack of labor 

may prohibit the loading of the cargo 

onboard a vessel in a timely manner; or 

(v) Other similar situation that may 

adversely affect the ability of the 


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Department to have the commodity 

delivered in a timely manner. 

(3) In order to ensure that 

commodities are delivered in a timely 

fashion to foreign destinations and 

without damage, USDA may complete 

an acquisition without regard to the 

lowest land cost process set forth in 

paragraph (a)(1) of this section, if: 

(i) The solicitation specifies that the 

lowest land cost process will not be 

followed in the completion of the 

contract; or 

(ii) After issuance of the solicitation, 

it is determined that: 

(A) Internal strife at the foreign 

destination or urgent humanitarian 

conditions threatens the lives of persons 

at the foreign destination; 

(B) A specific port’s cargo handling 

capabilities (including the adequacy of 

the port to receive, accumulate, handle, 

store, and protect commodities) and 

other similar factors will adversely 

affect the delivery of such commodities 

without damage or in a timely manner. 

Such similar factors include, but are not 

limited to: Port congestion; overloaded 

facilities at the port; vessels would not 

be able to dock and load cargo without 

delay; labor disputes or lack of labor 

may prohibit the loading of the cargo 

onboard a vessel in a timely manner; 

and the existence of inadequate or 

unsanitary warehouse and other 

supporting facilities; 

(C) The total transit time of a carrier, 

as it relates to a final delivery date at the 

foreign destination may impair the 

ability of USDA to achieve timely 

delivery of the commodity; or 

(D) Other similar situations arise that 

materially affect the administration of 

the program for which the commodity 

or freight is being procured. 

(4) If the contracting officer 

determines that action may be 

appropriate under paragraph (a)(3) of 

this section, prior to the acceptance of 

any applicable offer, the contracting 

officer shall provide to the HCA or 

Designee and to USAID, a written 

request to obtain commodities and 

freight in a manner other than on a 

lowest landed cost basis. This request 

shall include a statement of the reasons 

for not using lowest landed cost basis. 

The HCA or Designeeone level above 

the contracting officer, with the 

concurrence of USAID, shall, on an 

expedited basis, either accept or reject 

this request and shall document this 

determination in writing and provide a 

copy to USAID. 

(b) Freight shipping and rates. (1) In 

determining lowest-landed cost as 

specified in paragraph (a) of this 

section, USDA shall use vessel rates 

offered in response to solicitations 

issued by USAID or grantee 

organizations receiving commodities 

under 7 U.S.C. 1721 et seq. 

(2) USAID may require, or direct a 

grantee organization to require, an ocean 

carrier to submit offers electronically 

through a Web-based system maintained 

by USDA. If electronic submissions are 

required, USDA may, at its discretion, 

accept corrections to such submissions 

that are submitted in a written form 

other than by use of such Web-based 

system. 

(c) Delivery date. The contracting 

officer shall consider total transit time, 

as it relates to a final delivery date, in 

order to satisfy program requirements 

for Title II of Public Law 83–480. 

(d) Multiple awards or delivery points. 

(1) If more than one offer for the sale of 

commodities is received or more than 

one delivery point has been designated 

in such offers, in order to achieve a 

combination of a freight rate and 

commodity award that produces the 

lowest landed cost for the delivery of 

the commodity to the foreign 

destination, the contracting officer shall 

evaluate offers submitted on a delivery 

point by delivery point basis; however, 

consideration shall be given to 

prioritized ocean transport service in 

determining lowest landed cost. 

(2) The contracting officer may 

determine that extenuating 

circumstances preclude awards on the 

basis of lowest landed cost. However, in 

all such cases, commodities may be 

transported in compliance with cargo 

preference requirements as determined 

by USAID. 

(3) The contracting officer shall notify 

USAID or, if applicable, the grantee 

organization, that its shipping agent will 

be notified of the vessel freight rate used 

in determining the commodity contract 

award. The grantee organization or 

USAID will be responsible for finalizing 

the charter or booking contract with the 

vessel representing the freight rate so 

used. 

470.203 Cargo preference. 

An agency having responsibility 

under this subpart shall administer its 

programs, with respect to this subpart, 

in accordance with regulations 

prescribed by the Secretary of 

Transportation. 

PARTS 471 THROUGH 499— 

[RESERVED] 

Tiffany J. Taylor, 

Senior Procurement Executive (SPE), Director, 

Office of Contracting and Procurement. 

[FR Doc. 2022–01751 Filed 2–16–22; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No.: 220210–0044] 

RIN 0648–BL14 

Pacific Halibut Fisheries; Catch 

Sharing Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes to approve 

changes to the Pacific Halibut Catch 

Sharing Plan for the International 

Pacific Halibut Commission’s regulatory 

Area 2A off of Washington, Oregon, and 

California. In addition, NMFS proposes 

to implement management measures 

governing the 2022 recreational fisheries 

that are not implemented through the 

International Pacific Halibut 

Commission. These measures include 

the recreational fishery seasons, quotas, 

and management measures for Area 2A. 

These actions are intended to conserve 

Pacific halibut and provide angler 

opportunity where available. 

DATES: Comments on the proposed rule 

must be received on or before March 4, 

2022. 

ADDRESSES: Submit your comments, 

identified by NOAA–NMFS–2022–0003, 

by either of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2022–0003 in the Search 

box. Click on the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

Barry Thom, c/o Kathryn Blair, West 

Coast Region, NMFS, 1201 NE Lloyd 

Blvd., Suite 1100, Portland, OR 97232. 

Instructions: NMFS may not consider 

comments if they are sent by any other 

method, to any other address or 

individual, or received after the 

comment period ends. All comments 

received are a part of the public record 

and NMFS will post them for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender is 

publicly accessible. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 


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