FEDERAL ACQUISITION CIRCULAR · 22.08.2018 · DoD, GSA, and NASA are converting to a final rule,...

FEDERAL ACQUISITION CIRCULAR August 22, 2018 Number 2005-100

Effective August 22, 2018 Loose-leaf pages

Federal Acquisition Circular (FAC) 2005-100 is issued

under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-100 is effective August 22, 2018.

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FAC 2005-100 List of Subjects

Item Title Page

I Paid Sick Leave for Federal Contractors (FAR Case 2017-001)

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II Non-Retaliation for Disclosure of Compensation Information (FAR Case 2016-007)

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III Technical Amendments vi

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FAC 2005-100 SUMMARY OF ITEMS

Federal Acquisition Circular (FAC) 2005-100 amends the Federal Acquisition Regulation (FAR) as specified below:

Item I— Paid Sick Leave for Federal Contractors (FAR Case 2017-001) DoD, GSA, and NASA are converting to a final rule, without change, an interim rule that amended the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13706 and a Department of Labor final rule issued on September 30, 2016, both entitled Establishing Paid Sick Leave for Federal Contractors. The rule requires contractors to allow all employees performing work on or in connection with a contract covered by the E.O. to accrue and use paid sick leave in accordance with E.O. 13706 and 29 CFR part 13. Contracting officers will include a clause in covered contracts. This FAR rule neither increases nor decreases the cost of the interim rule (81 FR 91627), which has been in effect since January 1, 2017. Replacement pages: The effective pages were available on their effective date of JANUARY 1, 2017. Item II— Non-Retaliation for Disclosure of Compensation Information (FAR Case 2016-007)

DoD, GSA, and NASA are converting to a final rule, without change, an interim rule that amended the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13665, Non-Retaliation for Disclosure of Compensation Information. E.O. 13665, signed April 8, 2014, amended E.O. 11246, Equal Opportunity in Federal Employment. The interim FAR rule also implemented a final rule issued by the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor, entitled Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions, which was published on September 11, 2015. E.O. 11246, originally issued September 24, 1965, establishes nondiscrimination and affirmative action obligations in employment for Federal contractors and subcontractors. It prohibits employment discrimination because of race, color, religion, sex, sexual orientation, gender identity, and national

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origin. E.O. 13665 amends E.O. 11246 and its Equal Opportunity Clause by incorporating, as a covered prohibition, discriminating against employees and job applicants who inquire about, discuss, or disclose the compensation of the employee or applicant or another employee or applicant. Federal contractors and subcontractors must disseminate this nondiscrimination provision, using language prescribed by the Director of OFCCP, including incorporating the provision into existing employee manuals or handbooks and posting it. There is no significant impact on small entities imposed by the FAR rule.

Replacement pages: The replacement pages were available on their effective date of SEPTEMBER 11, 2015.

Item III—Technical Amendments

Editorial changes and updates to web links are made at FAR 2.101, 4.1603, 4.1702, 5.102, 5.201, 5.207, 5.704, 5.705, 6.305, 7.103, 7.105, 7.107-4, 8.405-6, 8.501, 8.602, 9.406-3, 9.407-3, 14.201-2, 16.505, 17.502-1, 18.205, 19.704, 19.1503, 22.001, 22.404-3, 22.1001, 22.1021, 22.1022, 22.1304, 23.202, 23.203, 23.205, 23.401, 23.405, 23.802, 25.003, 25.703-2, 28.106-1, 28.106-3, 28.203-3, 28.204-3, 31.205-6, 36.104, 36.700, 41.301, 49.602, 52.208-8, 52.212-1, 52.212-3, 52.212-5, 52.213-4, 52.219-9, 52.222-6, 52.222-8, 52.222-30, 52.222-31, 52.222-32, 52.222-41, 52.222-43, 52.223-17, 52.225-5, 52.225-18, 52.225-25, 52.228-11, 52.243-1, 52.244-6, 53.000, 53.102, 53.209-1, 53.228, 53.249 and subpart 53.3.

Replacement pages: 2.1-5 thru 2.1-10; 4.16-3 and 4.16-4 4; 4.17-1 and 4.17-2; 5.1-1 and 5.1-2; 5.2-1 thru 5.2-4; 5.7-1 and 5.7-2; 6.3-5 and 6.3-6; 7.1-1 thru 7.1-8; 8.4-9 and 8.4-10; 8.5-1 and 8.5-2; 8.6-1 and 8.6-2; 9.4-5 thru 9.4-10; 14.2-1 and 14.2-2; 16.5-7 and 16.5-8; 17.5-1 thru 17.5-4; 18.2-1 and 18.2-2; 19.7-3 thru 19.7-10; 19.15-1 thru 19.15-4; 22.1-1 thru 22.1-4; 22.4-5 and 22.4-6; 22.10-1 thru 22.10-14; 22.13-1 thru 22.13-4; 23.2-1 and 23.2-2; 23.4-1 and 23.4-2; 23.8-1 and 23.8-2; 25.1-1 thru 25.1-8; 25.7-3 and 25.7-4; 28.1-3 thru 28.1-6; 28.2-3 thru 28.2-6; 31.2-9 thru 31.2-14.2; 36.1-1 and 36.1-2; 36.7-1 and 36.7-2; 41.3-1 and 41.3-2; 49.6-3 thru 49.6-12; 52.2-15 and 52.2-16; 52.2-27 and 52.2-34.6; 52.2-39 thru 52.2-42.6; 52.2-69 thru 52.2-76; 52.2-95 thru 52.2-96.8; 52.2-105 thru 52.2-132.10; 52.2-138.1 thru 52.2-146; 52.2-150.15 thru 52.2-150.20; 52.2-179 and 52.2-180; 52.2-255 and 52.2-256; 52.2-261 thru 52.262; 53.1-1 and 53.1-2; TOC 53-1 and 53-2; 53.2-1 thru 53.2-6.

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FAC 2005-100 FILING INSTRUCTIONS

NOTE: The FAR is segmented by subparts. The FAR page numbers reflect FAR Subparts. For example, “2.1-5” is page 5 of subpart 2.1.

Remove Pages Insert Pages 2.1-5 thru 2.1-10 2.1-5 thru 2.1-10

4.16-3 and 4.16-4 4.16-3 and 4.16-4 4.17-1 and 4.17-2 4.17-1 and 4.17-2

5.1-1 and 5.1-2 5.1-1 and 5.1-2 5.2-1 thru 5.2-4 5.2-1 thru 5.2-4 5.7-1 and 5.7-2 5.7-1 and 5.7-2

6.3-5 and 6.3-6 6.3-5 and 6.3-6

7.1-1 thru 7.1-8 7.1-1 thru 7.1-8

8.4-9 and 8.4-10 8.4-9 and 8.4-10 8.5-1 and 8.5-2 8.5-1 and 8.5-2 8.6-1 and 8.6-2 8.6-1 and 8.6-2

9.4-5 thru 9.4-10 9.4-5 thru 9.4-10

14.2-1 and 14.2-2 14.2-1 and 14.2-2

16.5-7 and 16.5-8 16.5-7 and 16.5-8

17.5-1 thru 17.5-4 17.5-1 thru 17.5-4

18.2-1 and 18.2-2 18.2-1 and 18.2-2

19.7-3 thru 19.7-10 19.7-3 thru 19.7-10 19.15-1 thru 19.15-4 19.15-1 thru 19.15-4

22.1-1 thru 22.1-4 22.1-1 thru 22.1-4 22.4-5 and 22.4-6 22.4-5 and 22.4-6 22.10-1 thru 22.10-14 22.10-1 thru 22.10-14 22.13-1 thru 22.13-4 22.13-1 thru 22.13-4

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Remove Pages 23.2-1 and 23.2-2 23.4-1 and 23.4-2 23.8-1 and 23.8-2

25.1-1 thru 25.1-8 25.7-3 and 25.7-4

28.1-3 thru 28.1-6 28.2-3 thru 28.2-6

31.2-9 thru 31.2-14.2

36.1-1 and 36.1-2 36.7-1 and 36.7-2

41.3-1 and 41.3-2

49.6-3 thru 49.6-12

52.2-15 and 52.2-16 52.2-27 and 52.2-34.6 52.2-39 thru 52.2-42.6 52.2-69 thru 52.2-76 52.2-95 thru 52.2-96.8 52.2-105 thru 52.2-132.10 52.2-138.1 thru 52.2-146 52.2-150.15 thru 52.2-150.20 52.2-179 and 52.2-180 52.2-255 and 52.2-256 52.2-261 thru 52.264

TOC 53-1 thru 53-4 53.1-1 and 53.1-2 53.2-1 thru 53.2-6 53.3-1 thru 53.2-4

Insert Pages 23.2-1 and 23.2-2 23.4-1 and 23.4-2 23.8-1 and 23.8-2

25.1-1 thru 25.1-8 25.7-3 and 25.7-4

28.1-3 thru 28.1-6 28.2-3 thru 28.2-6

31.2-9 thru 31.2-14.2

36.1-1 and 36.1-2 36.7-1 and 36.7-2

41.3-1 and 41.3-2

49.6-3 thru 49.6-12

52.2-15 and 52.2-16 52.2-27 and 52.2-34.6 52.2-39 thru 52.2-42.6 52.2-69 thru 52.2-76 52.2-95 thru 52.2-96.8 52.2-105 thru 52.2-132.10 52.2-138.1 thru 52.2-146 52.2-150.15 thru 52.2-150.20 52.2-179 and 52.2-180 52.2-255 and 52.2-256 52.2-261 thru 52.264

TOC 53-1 and 53-2 53.1-1 and 53.1-2 53.2-1 thru 53.2-6 53.3-1 thru 53.2-4

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SUBPART 2.1—DEFINITIONS 2.101

(FAC 2005-100)
2.1-5
“Construction” means construction, alteration, or repair(including dredging, excavating, and painting) of buildings,structures, or other real property. For purposes of thisdefinition, the terms “buildings, structures, or other realproperty” include, but are not limited to, improvements of alltypes, such as bridges, dams, plants, highways, parkways,streets, subways, tunnels, sewers, mains, power lines,cemeteries, pumping stations, railways, airport facilities,terminals, docks, piers, wharves, ways, lighthouses, buoys,jetties, breakwaters, levees, canals, and channels.Construction does not include the manufacture, production,furnishing, construction, alteration, repair, processing, orassembling of vessels, aircraft, or other kinds of personalproperty (except that for use in subpart 22.5, see the definitionat 22.502).

“Contiguous United States (CONUS)” means the48 contiguous States and the District of Columbia.

“Contingency operation” (10 U.S.C. 101(a)(13)) means amilitary operation that—

(1) Is designated by the Secretary of Defense as an oper-ation in which members of the armed forces are or maybecome involved in military actions, operations, or hostilitiesagainst an enemy of the United States or against an opposingmilitary force; or

(2) Results in the call or order to, or retention on, activeduty of members of the uniformed services undersections 688, 12301(a), 12302, 12304, 12304(a), 12305, or12406 of title 10 of the United States Code, Chapter 15 of title10 of the United States Code, or any other provision of lawduring a war or during a national emergency declared by thePresident or Congress.

“Continued portion of the contract” means the portion of acontract that the contractor must continue to perform follow-ing a partial termination.

“Contract” means a mutually binding legal relationshipobligating the seller to furnish the supplies or services (includ-ing construction) and the buyer to pay for them. It includes alltypes of commitments that obligate the Government to anexpenditure of appropriated funds and that, except as other-wise authorized, are in writing. In addition to bilateral instru-ments, contracts include (but are not limited to) awards andnotices of awards; job orders or task letters issued under basicordering agreements; letter contracts; orders, such as purchaseorders, under which the contract becomes effective by writtenacceptance or performance; and bilateral contract modifica-tions. Contracts do not include grants and cooperative agree-ments covered by 31 U.S.C. 6301, et seq. For discussion ofvarious types of contracts, see part 16.

“Contract administration office” means an office that per-forms—

(1) Assigned postaward functions related to the admin-istration of contracts; and

(2) Assigned preaward functions.

“Contract clause” or “clause” means a term or conditionused in contracts or in both solicitations and contracts, andapplying after contract award or both before and after award.

“Contract modification” means any written change in theterms of a contract (see 43.103).

“Contracting” means purchasing, renting, leasing, or oth-erwise obtaining supplies or services from nonfederalsources. Contracting includes description (but not determina-tion) of supplies and services required, selection and solicita-tion of sources, preparation and award of contracts, and allphases of contract administration. It does not include makinggrants or cooperative agreements.

“Contracting activity” means an element of an agency des-ignated by the agency head and delegated broad authorityregarding acquisition functions.

“Contracting office” means an office that awards or exe-cutes a contract for supplies or services and performs post-award functions not assigned to a contract administrationoffice (except for use in part 48, see also 48.001).

“Contracting officer” means a person with the authority toenter into, administer, and/or terminate contracts and makerelated determinations and findings. The term includes certainauthorized representatives of the contracting officer actingwithin the limits of their authority as delegated by the con-tracting officer. “Administrative contracting officer (ACO)”refers to a contracting officer who is administering contracts.“Termination contracting officer (TCO)” refers to a contract-ing officer who is settling terminated contracts. A single con-tracting officer may be responsible for duties in any or all ofthese areas. Reference in this regulation (48 CFR Chapter 1)to administrative contracting officer or termination contract-ing officer does not—

(1) Require that a duty be performed at a particularoffice or activity; or

(2) Restrict in any way a contracting officer in the per-formance of any duty properly assigned.

“Contracting officer’s representative (COR)” means anindividual, including a contracting officer’s technical repre-sentative (COTR), designated and authorized in writing by thecontracting officer to perform specific technical or adminis-trative functions.

“Conviction” means a judgment or conviction of a criminaloffense by any court of competent jurisdiction, whetherentered upon a verdict or a plea, and includes a convictionentered upon a plea of nolo contendere. For use insubpart 23.5, see the definition at 23.503.

“Cost or pricing data” (10 U.S.C. 2306a(h)(1) and 41U.S.C. chapter 35) means all facts that, as of the date of priceagreement, or, if applicable, an earlier date agreed uponbetween the parties that is as close as practicable to the dateof agreement on price, prudent buyers and sellers would rea-sonably expect to affect price negotiations significantly. Costor pricing data are factual, not judgmental; and are verifiable.

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2.101 FEDERAL ACQUISITION REGULATION

FAC 2005–100 AUGUST 22, 2018

2.1-6

While they do not indicate the accuracy of the prospectivecontractor’s judgment about estimated future costs or projec-tions, they do include the data forming the basis for that judg-ment. Cost or pricing data are more than historical accountingdata; they are all the facts that can be reasonably expected tocontribute to the soundness of estimates of future costs and tothe validity of determinations of costs already incurred. Theyalso include, but are not limited to, such factors as—

(1) Vendor quotations;(2) Nonrecurring costs;(3) Information on changes in production methods and

in production or purchasing volume;(4) Data supporting projections of business prospects

and objectives and related operations costs;(5) Unit-cost trends such as those associated with labor

efficiency;(6) Make-or-buy decisions;(7) Estimated resources to attain business goals; and(8) Information on management decisions that could

have a significant bearing on costs.“Cost realism” means that the costs in an offeror’s

proposal—(1) Are realistic for the work to be performed;(2) Reflect a clear understanding of the requirements;

and(3) Are consistent with the various elements of the

offeror’s technical proposal.“Cost sharing” means an explicit arrangement under which

the contractor bears some of the burden of reasonable, alloca-ble, and allowable contract cost.

“Customs territory of the United States” means the50 States, the District of Columbia, and Puerto Rico.

“Data other than certified cost or pricing data” means pric-ing data, cost data, and judgmental information necessary forthe contracting officer to determine a fair and reasonable priceor to determine cost realism. Such data may include the iden-tical types of data as certified cost or pricing data, consistentwith Table 15-2 of 15.408, but without the certification. Thedata may also include, for example, sales data and any infor-mation reasonably required to explain the offeror’s estimatingprocess, including, but not limited to–

(1) The judgmental factors applied and the mathematicalor other methods used in the estimate, including those used inprojecting from known data; and

(2) The nature and amount of any contingencies includedin the proposed price.

“Day” means, unless otherwise specified, a calendar day.“Debarment” means action taken by a debarring official

under 9.406 to exclude a contractor from Government con-tracting and Government-approved subcontracting for a rea-sonable, specified period; a contractor that is excluded is“debarred.”

“Delivery order” means an order for supplies placedagainst an established contract or with Government sources.

“Depreciation” means a charge to current operations thatdistributes the cost of a tangible capital asset, less estimatedresidual value, over the estimated useful life of the asset in asystematic and logical manner. It does not involve a processof valuation. Useful life refers to the prospective period ofeconomic usefulness in a particular contractor’s operations asdistinguished from physical life; it is evidenced by the actualor estimated retirement and replacement practice of thecontractor.

“Descriptive literature” means information provided by anofferor, such as cuts, illustrations, drawings, and brochures,that shows a product’s characteristics or construction of aproduct or explains its operation. The term includes only thatinformation needed to evaluate the acceptability of the prod-uct and excludes other information for operating or maintain-ing the product.

“Design-to-cost” means a concept that establishes cost ele-ments as management goals to achieve the best balancebetween life-cycle cost, acceptable performance, and sched-ule. Under this concept, cost is a design constraint during thedesign and development phases and a management disciplinethroughout the acquisition and operation of the system orequipment.

“Designated operational area” means a geographic areadesignated by the combatant commander or subordinate jointforce commander for the conduct or support of specified mil-itary operations.

“Direct cost” means any cost that is identified specificallywith a particular final cost objective. Direct costs are not lim-ited to items that are incorporated in the end product as mate-rial or labor. Costs identified specifically with a contract aredirect costs of that contract. All costs identified specificallywith other final cost objectives of the contractor are directcosts of those cost objectives.

“Direct acquisition” means a type of interagency acquisi-tion where a requesting agency places an order directlyagainst a servicing agency’s indefinite-delivery contract. Theservicing agency manages the indefinite-delivery contract butdoes not participate in the placement or administration of anorder.

“Disaster Response Registry” means a voluntary registryof contractors who are willing to perform debris removal, dis-tribution of supplies, reconstruction, and other disaster oremergency relief activities established in accordance with6 U.S.C. 796, Registry of Disaster Response Contractors.The Registry contains information on contractors who arewilling to perform disaster or emergency relief activitieswithin the United States and its outlying areas. The Registryis accessed via the Internet at https://www.sam.gov, SearchRecords, Advanced Search, Disaster Response RegistrySearch. (See 26.205.)

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(FAC 2005-100)
2.1-7
“Drug-free workplace” means the site(s) for the perfor-mance of work done by the contractor in connection with aspecific contract where employees of the contractor are pro-hibited from engaging in the unlawful manufacture, distribu-tion, dispensing, possession, or use of a controlled substance.

“Earned value management system” means a project man-agement tool that effectively integrates the project scope ofwork with cost, schedule and performance elements for opti-mum project planning and control. The qualities and operat-ing characteristics of an earned value management system aredescribed in Electronic Industries Alliance Standard 748(EIA-748), Earned Value Management Systems. (See OMBCircular A-11, Part 7.)

“Economically disadvantaged women-owned small busi-ness (EDWOSB) concern”—(see definition of “Women-Owned Small Business (WOSB) Program” in this section).

“Effective date of termination” means the date on whichthe notice of termination requires the contractor to stop per-formance under the contract. If the contractor receives the ter-mination notice after the date fixed for termination, then theeffective date of termination means the date the contractorreceives the notice.

“Electronic and information technology (EIT)” has thesame meaning as “information technology” except EIT alsoincludes any equipment or interconnected system or subsys-tem of equipment that is used in the creation, conversion, orduplication of data or information. The term EIT, includes, butis not limited to, telecommunication products (such as tele-phones), information kiosks and transaction machines, world-wide websites, multimedia, and office equipment (such ascopiers and fax machines).

“Electronic commerce” means electronic techniques foraccomplishing business transactions including electronic mailor messaging, World Wide Web technology, electronic bulle-tin boards, purchase cards, electronic funds transfer, and elec-tronic data interchange.

“Electronic data interchange (EDI)” means a technique forelectronically transferring and storing formatted informationbetween computers utilizing established and published for-mats and codes, as authorized by the applicable Federal Infor-mation Processing Standards.

“Electronic Funds Transfer (EFT)” means any transfer offunds, other than a transaction originated by cash, check, orsimilar paper instrument, that is initiated through an electronicterminal, telephone, computer, or magnetic tape, for the pur-pose of ordering, instructing, or authorizing a financial insti-tution to debit or credit an account. The term includesAutomated Clearing House transfers, Fedwire transfers, andtransfers made at automatic teller machines and point-of-saleterminals. For purposes of compliance with 31 U.S.C. 3332and implementing regulations at 31 CFR Part 208, the term“electronic funds transfer” includes a Governmentwide com-mercial purchase card transaction.

“Electronic Funds Transfer (EFT) indicator” means a four-character suffix to the unique entity identifier. The suffix isassigned at the discretion of the commercial, nonprofit, orGovernment entity to establish additional System for AwardManagement records for identifying alternative EFT accounts(see subpart 32.11) for the same entity.

“End product” means supplies delivered under a line itemof a Government contract, except for use in part 25 and theassociated clauses at 52.225-1, 52.225-3, and 52.225-5, seethe definitions in 25.003, 52.225-1(a), 52.225-3(a), and52.225-5(a).

“Energy-efficient product”— (1) Means a product that—(i) Meets Department of Energy and Environmental

Protection Agency criteria for use of the Energy Star trade-mark label; or

(ii) Is in the upper 25 percent of efficiency for all sim-ilar products as designated by the Department of Energy’sFederal Energy Management Program.

(2) As used in this definition, the term “product” doesnot include any energy-consuming product or systemdesigned or procured for combat or combat-related missions(42 U.S.C. 8259b).

“Energy-efficient standby power devices” means productsthat use—

(1) External standby power devices, or that contain aninternal standby power function; and

(2) No more than one watt of electricity in their standbypower consuming mode or meet recommended low standbylevels as designated by the Department of Energy FederalEnergy Management Program.

“Energy-savings performance contract” means a contractthat requires the contractor to—

(1) Perform services for the design, acquisition, financ-ing, installation, testing, operation, and where appropriate,maintenance and repair, of an identified energy conservationmeasure or series of measures at one or more locations;

(2) Incur the costs of implementing the energy savingsmeasures, including at least the cost (if any) incurred in mak-ing energy audits, acquiring and installing equipment, andtraining personnel in exchange for a predetermined share ofthe value of the energy savings directly resulting from imple-mentation of such measures during the term of the contract;and

(3) Guarantee future energy and cost savings to theGovernment.

“Environmentally preferable” means products or servicesthat have a lesser or reduced effect on human health and theenvironment when compared with competing products or ser-vices that serve the same purpose. This comparison may con-sider raw materials acquisition, production, manufacturing,packaging, distribution, reuse, operation, maintenance, or dis-posal of the product or service.

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FAC 2005–100)
2.1-8 (
“Excess personal property” means any personal propertyunder the control of a Federal agency that the agency headdetermines is not required for its needs or for the discharge ofits responsibilities.

“Executive agency” means an executive department, a mil-itary department, or any independent establishment within themeaning of 5 U.S.C. 101, 102, and 104(1), respectively, andany wholly owned Government corporation within the mean-ing of 31 U.S.C. 9101.

“Facilities capital cost of money” means “cost of money asan element of the cost of facilities capital” as used at48 CFR 9904.414—Cost Accounting Standard—Cost ofMoney as an Element of the Cost of Facilities Capital.

“Federal agency” means any executive agency or any inde-pendent establishment in the legislative or judicial branch ofthe Government (except the Senate, the House of Represen-tatives, the Architect of the Capitol, and any activities underthe Architect’s direction).

“Federally-controlled facilities” means—(1) Federally-owned buildings or leased space, whether

for single or multi-tenant occupancy, and its grounds andapproaches, all or any portion of which is under the jurisdic-tion, custody or control of a department or agency;

(2) Federally-controlled commercial space shared withnon-government tenants. For example, if a department oragency leased the 10th floor of a commercial building, theDirective applies to the 10th floor only;

(3) Government-owned, contractor-operated facilities,including laboratories engaged in national defense researchand production activities; and

(4) Facilities under a management and operating con-tract, such as for the operation, maintenance, or support of aGovernment-owned or Government-controlled research,development, special production, or testing establishment.

“Federally-controlled information system” means aninformation system (44 U.S.C. 3502(8) used or operated by aFederal agency, or a contractor or other organization on behalfof the agency (44 U.S.C. 3544(a)(1)(A)).

“Federally Funded Research and Development Centers(FFRDC’s)” means activities that are sponsored under a broadcharter by a Government agency (or agencies) for the purposeof performing, analyzing, integrating, supporting, and/ormanaging basic or applied research and/or development, andthat receive 70 percent or more of their financial support fromthe Government; and—

(1) A long-term relationship is contemplated;(2) Most or all of the facilities are owned or funded by

the Government; and

(3) The FFRDC has access to Government and supplierdata, employees, and facilities beyond that common in a nor-mal contractual relationship.

“Final indirect cost rate” means the indirect cost rate estab-lished and agreed upon by the Government and the contractoras not subject to change. It is usually established after the closeof the contractor’s fiscal year (unless the parties decide upona different period) to which it applies. For cost-reimbursementresearch and development contracts with educational institu-tions, it may be predetermined; that is, established for a futureperiod on the basis of cost experience with similar contracts,together with supporting data.

“First article” means a preproduction model, initial pro-duction sample, test sample, first lot, pilot lot, or pilot models.

“First article testing” means testing and evaluating the firstarticle for conformance with specified contract requirementsbefore or in the initial stage of production.

“F.o.b.” means free on board. This term is used in conjunc-tion with a physical point to determine—

(1) The responsibility and basis for payment of freightcharges; and

(2) Unless otherwise agreed, the point where title forgoods passes to the buyer or consignee.

“F.o.b. destination” means free on board at destination;i.e., the seller or consignor delivers the goods on seller’s orconsignor’s conveyance at destination. Unless the contractprovides otherwise, the seller or consignor is responsible forthe cost of shipping and risk of loss. For use in the clause at52.247-34, see the definition at 52.247-34(a).

“F.o.b. origin” means free on board at origin; i.e., the selleror consignor places the goods on the conveyance. Unless thecontract provides otherwise, the buyer or consignee is respon-sible for the cost of shipping and risk of loss. For use in theclause at 52.247-29, see the definition at 52.247-29(a).

“F.o.b.”…(For other types of F.o.b., see 47.303).“Forward pricing rate agreement” means a written agree-

ment negotiated between a contractor and the Government tomake certain rates available during a specified period for usein pricing contracts or modifications. These rates representreasonable projections of specific costs that are not easily esti-mated for, identified with, or generated by a specific contract,contract end item, or task. These projections may include ratesfor such things as labor, indirect costs, material obsolescenceand usage, spare parts provisioning, and material handling.

“Forward pricing rate recommendation” means a rate setunilaterally by the administrative contracting officer for useby the Government in negotiations or other contract actionswhen forward pricing rate agreement negotiations have notbeen completed or when the contractor will not agree to a for-ward pricing rate agreement.

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FAC 2005–100 AUGUST 22, 2018

2.1-9

“Freight” means supplies, goods, and transportableproperty.

“Full and open competition,” when used with respect to acontract action, means that all responsible sources are permit-ted to compete.

“General and administrative (G&A) expense” means anymanagement, financial, and other expense which is incurredby or allocated to a business unit and which is for the generalmanagement and administration of the business unit as awhole. G&A expense does not include those managementexpenses whose beneficial or causal relationship to costobjectives can be more directly measured by a base other thana cost input base representing the total activity of a businessunit during a cost accounting period.

“Global warming potential” means how much a givenmass of a chemical contributes to global warming over a giventime period compared to the same mass of carbon dioxide.Carbon dioxide’s global warming potential is defined as 1.0.

“Governmentwide acquisition contract (GWAC)” means atask-order or delivery-order contract for information technol-ogy established by one agency for Governmentwide use thatis operated—

(1) By an executive agent designated by the Office ofManagement and Budget pursuant to 40 U.S.C. 11302(e); or

(2) Under a delegation of procurement authority issuedby the General Services Administration (GSA) prior toAugust 7, 1996, under authority granted GSA by former sec-tion 40 U.S.C. 759, repealed by Pub. L. 104-106. The Econ-omy Act does not apply to orders under a Governmentwideacquisition contract.

“Governmentwide point of entry (GPE)” means the singlepoint where Government business opportunities greater than$25,000, including synopses of proposed contract actions,solicitations, and associated information, can be accessedelectronically by the public. The GPE is located at https://www.fbo.gov.

“Head of the agency” (see “agency head”).“Head of the contracting activity” means the official who

has overall responsibility for managing the contractingactivity.

“High global warming potential hydrofluorocarbons”means any hydrofluorocarbons in a particular end use forwhich EPA’s Significant New Alternatives Policy (SNAP)program has identified other acceptable alternatives that havelower global warming potential. The SNAP list of alternativesis found at 40 CFR part 82 subpart G with supplemental tablesof alternatives available at http://www.epa.gov/snap/).

“Historically black college or university” means an insti-tution determined by the Secretary of Education to meet therequirements of 34 CFR 608.2.

“HUBZone” means a historically underutilized businesszone that is an area located within one or more qualified cen-sus tracts, qualified nonmetropolitan counties, lands within

the external boundaries of an Indian reservation, qualifiedbase closure areas, or redesignated areas, as defined in 13 CFR126.103.

“HUBZone contract” means a contract awarded to a SmallBusiness Administration certified “HUBZone small businessconcern” through any of the following procurement methods:

(1) A sole source award to a HUBZone small businessconcern.

(2) Set-aside awards based on competition restricted toHUBZone small business concerns.

(3) Awards to HUBZone small business concernsthrough full and open competition after a price evaluationpreference in favor of HUBZone small business concerns.

“HUBZone small business concern” means a small busi-ness concern, certified by the Small Business Administration(SBA), that appears on the List of Qualified HUBZone SmallBusiness Concerns maintained by the SBA (13 CFR 126.103).

“Humanitarian or peacekeeping operation” means a mili-tary operation in support of the provision of humanitarian orforeign disaster assistance or in support of a peacekeepingoperation under Chapter VI or VII of the Charter of the UnitedNations. The term does not include routine training, forcerotation, or stationing (10 U.S.C. 2302(8) and 41 U.S.C.153(2)).

“Hydrofluorocarbons” means compounds that containonly hydrogen, fluorine, and carbon.

“In writing,” “writing,” or “written” means any worded ornumbered expression that can be read, reproduced, and latercommunicated, and includes electronically transmitted andstored information.

“Indirect cost” means any cost not directly identified witha single final cost objective, but identified with two or morefinal cost objectives or with at least one intermediate costobjective.

“Indirect cost rate” means the percentage or dollar factorthat expresses the ratio of indirect expense incurred in a givenperiod to direct labor cost, manufacturing cost, or anotherappropriate base for the same period (see also “final indirectcost rate”).

“Ineligible” means excluded from Government contract-ing (and subcontracting, if appropriate) pursuant to statutory,Executive order, or regulatory authority other than this regu-lation (48 CFR chapter 1) and its implementing and supple-menting regulations; for example, pursuant to–

(1) 40 U.S.C. chapter 31, subchapter IV, Wage RateRequirements (Construction), and its related statutes andimplementing regulations;

(2) 41 U.S.C. chapter 67, Service Contract Labor Stan-dards;

(3) The Equal Employment Opportunity Acts and Exec-utive orders;

(4) 41 U.S.C. chapter 65, Contracts for Material, Sup-plies, Articles, and Equipment Exceeding $15,000;

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FAC 2005–100)
2.1-10 (
(5) 41 U.S.C. chapter 83, Buy American; or(6) The Environmental Protection Acts and Executive

orders.“Information security” means protecting information and

information systems from unauthorized access, use, disclo-sure, disruption, modification, or destruction in order to pro-vide—

(1) Integrity, which means guarding against improperinformation modification or destruction, and includes ensur-ing information nonrepudiation and authenticity;

(2) Confidentiality, which means preserving authorizedrestrictions on access and disclosure, including means for pro-tecting personal privacy and proprietary information; and

(3) Availability, which means ensuring timely and reli-able access to, and use of, information.

“Information technology” means any equipment, or inter-connected system(s) or subsystem(s) of equipment, that isused in the automatic acquisition, storage, analysis, evalua-tion, manipulation, management, movement, control, display,switching, interchange, transmission, or reception of data orinformation by the agency.

(1) For purposes of this definition, equipment is used byan agency if the equipment is used by the agency directly oris used by a contractor under a contract with the agency thatrequires—

(i) Its use; or(ii) To a significant extent, its use in the performance

of a service or the furnishing of a product.(2) The term “information technology” includes com-

puters, ancillary equipment (including imaging peripherals,input, output, and storage devices necessary for security andsurveillance), peripheral equipment designed to be controlledby the central processing unit of a computer, software, firm-ware and similar procedures, services (including support ser-vices), and related resources.

(3) The term “information technology” does not includeany equipment that—

(i) Is acquired by a contractor incidental to a con-tract; or

(ii) Contains imbedded information technology thatis used as an integral part of the product, but the principalfunction of which is not the acquisition, storage, analysis,evaluation, manipulation, management, movement, control,display, switching, interchange, transmission, or reception ofdata or information. For example, HVAC (heating, ventila-tion, and air conditioning) equipment, such as thermostats ortemperature control devices, and medical equipment whereinformation technology is integral to its operation, are notinformation technology.

“Inherently governmental function” means, as a matter ofpolicy, a function that is so intimately related to the publicinterest as to mandate performance by Government employ-

ees. This definition is a policy determination, not a legal deter-mination. An inherently governmental function includesactivities that require either the exercise of discretion in apply-ing Government authority, or the making of value judgmentsin making decisions for the Government. Governmental func-tions normally fall into two categories: the act of governing,i.e., the discretionary exercise of Government authority, andmonetary transactions and entitlements.

(1) An inherently governmental function involves,among other things, the interpretation and execution of thelaws of the United States so as to—

(i) Bind the United States to take or not to take someaction by contract, policy, regulation, authorization, order, orotherwise;

(ii) Determine, protect, and advance United Stateseconomic, political, territorial, property, or other interests bymilitary or diplomatic action, civil or criminal judicial pro-ceedings, contract management, or otherwise;

(iii) Significantly affect the life, liberty, or propertyof private persons;

(iv) Commission, appoint, direct, or control officersor employees of the United States; or

(v) Exert ultimate control over the acquisition, use,or disposition of the property, real or personal, tangible orintangible, of the United States, including the collection, con-trol, or disbursement of Federal funds.

(2) Inherently governmental functions do not normallyinclude gathering information for or providing advice, opin-ions, recommendations, or ideas to Government officials.They also do not include functions that are primarily ministe-rial and internal in nature, such as building security, mail oper-ations, operation of cafeterias, housekeeping, facilitiesoperations and maintenance, warehouse operations, motorvehicle fleet management operations, or other routine electri-cal or mechanical services.

“Inspection” means examining and testing supplies or ser-vices (including, when appropriate, raw materials, compo-nents, and intermediate assemblies) to determine whetherthey conform to contract requirements.

“Insurance” means a contract that provides that for a stip-ulated consideration, one party undertakes to indemnifyanother against loss, damage, or liability arising from anunknown or contingent event.

“Interagency acquisition” means a procedure by which anagency needing supplies or services (the requesting agency)obtains them from another agency (the servicing agency), byan assisted acquisition or a direct acquisition. The termincludes—

(1) Acquisitions under the Economy Act (31 U.S.C. 1535);and

(2) Non-Economy Act acquisitions completed under otherstatutory authorities, (e.g., General Services AdministrationFederal Supply Schedules in subpart 8.4 and Govern-mentwide acquisition contracts (GWACs)).

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SUBPART 4.16—UNIQUE PROCUREMENT INSTRUMENT IDENTIFIERS 4.1603

FAC 2005–100 AUGUST 22, 2018

4.16-3

(5) Illustration of PIID. The following illustrates aproperly configured PIID using four characters in the finalpositions:

(b) Elements of a supplementary PIID. Use the supplemen-tary PIID to identify amendments to solicitations and modifi-cations to contracts, orders, and agreements. Thesupplementary PIID is reported as a separate data elementused in conjunction with, but not appended to, the PIID.

(1) Amendments to solicitations. Number amendmentsto solicitations sequentially using a four position numericserial number in addition to the 13-17 character PIID begin-ning with 0001.

(2) Modifications to contracts, orders, and agreements.Number modifications to contracts, orders, and agreementsusing a six position alpha or numeric, or a combinationthereof, in addition to the 13-17 character PIID. For example,a modification could be numbered P00001. This would be inaddition to the 13-17 character PIID illustrated in paragraph(a)(5) of this section.

(i) Position 1. Identify the office issuing the modi-fication. The letter P shall be designated for modificationsissued by the procuring contracting office. The letter A shallbe used for modifications issued by the contract administra-tion office (if other than the procuring contracting office).

(ii) Positions 2 through 6. These positions may bealpha, numeric, or a combination thereof, in accordance withagency procedures.

Each office authorized to issue modifications shall assignthe supplementary identification numbers in sequence (unlessprovided otherwise in agency procedures). Do not assign thenumbers until it has been determined that a modification is tobe issued.

Position Contents

office (AAC)department/agnecyIdentification of 1-6

N00062 17 C 0001

Last two digitsof the fiscal year in whichthe procurmentinstrument is issued or

7-8

Type of instrument

Four positionagency assignednumber

9

10-13


4.16-4

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SUBPART 4.17—SERVICE CONTRACTS INVENTORY 4.1703

FAC 2005–100 AUGUST 22, 2018

4.17-1

Subpart 4.17—Service Contracts Inventory

4.1700 Scope of subpart.This subpart implements section 743(a) of Division C of

the Consolidated Appropriations Act, 2010 (Pub. L. 111-117),which requires agencies to report annually to the Office ofManagement and Budget (OMB) on activities performed byservice contractors. Section 743(a) applies to executive agen-cies, other than the Department of Defense (DoD), covered bythe Federal Activities Inventory Reform Act (Pub. L. 105-270) (FAIR Act). The information reported in the inventorywill be publicly accessible.

4.1701 Definitions.As used in this subpart–“FAIR Act agencies” means the agencies required under

the FAIR Act to submit inventories annually of the activitiesperformed by Government personnel.

“First-tier subcontract” means a subcontract awardeddirectly by the contractor for the purpose of acquiring suppliesor services (including construction) for performance of aprime contract. It does not include the contractor’s supplieragreements with vendors, such as long-term arrangements formaterials or supplies that benefit multiple contracts and/or thecosts of which are normally applied to a contractor’s generaland administrative expenses or indirect costs.

4.1702 Applicability.(a) This subpart applies to–

(1) All FAIR Act agencies, except DoD as specified in4.1705;

(2) Solicitations, contracts, and orders for services(including construction) that meet or exceed the thresholds at4.1703; and

(3) Contractors and first-tier subcontractors.(b) Procedures for compiling and submitting agency ser-

vice contract inventories are governed by section 743(a)(3) ofDivision C of Pub. L. 111-117 and Office of Federal Procure-ment Policy (OFPP) guidance. The guidance is available atthe following Web site: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-con-tract-inventory-guidance.pdf.

(c) This subpart addresses requirements for obtaininginformation from, and reporting by, agency service contrac-tors.

4.1703 Reporting requirements.(a) Thresholds. (1) Except as exempted by OFPP guid-

ance, service contractor reporting shall be required for con-tracts and first-tier subcontracts for services based on type ofcontract and estimated total value. For indefinite-deliverycontracts, reporting shall be determined based on the type and

estimated total value of each order under the contract. Indef-inite-delivery contracts include, but are not limited to, con-tracts such as indefinite-delivery indefinite-quantity (IDIQ)contracts, Federal Supply Schedule contracts (FSSs), Govern-mentwide acquisition contracts (GWACs), and multi-agencycontracts.

(2) Reporting is required according to the followingthresholds:

(i) All cost-reimbursement, time-and-materials, andlabor-hour service contracts and orders with an estimated totalvalue above the simplified acquisition threshold.

(ii) All fixed-price service contracts awarded andorders issued according to the following thresholds:

(A) Awarded or issued in Fiscal Year 2014, withan estimated total value of $2.5 million or greater.

(B) Awarded or issued in Fiscal Year 2015, withan estimated total value of $1 million or greater.

(C) Awarded or issued in Fiscal Year 2016, andsubsequent years, with an estimated total value of $500,000 orgreater.

(3) Reporting is required for all first-tier subcontractsfor services as prescribed in paragraphs (a)(2)(i) and (ii) ofthis section.

(b) Agency reporting responsibilities. (1) Agencies shallensure that contractors comply with the reporting require-ments of 52.204-14, Service Contract Reporting Require-ments and 52.204-15, Service Contract ReportingRequirements for Indefinite-Delivery Contracts. Agenciesshall review contractor reported information for reasonable-ness and consistency with available contract information. Theagency is not required to address data for which the agencywould not normally have supporting information. In the eventthe agency believes that revisions to the contractor reportedinformation are warranted, the agency shall notify the con-tractor no later than November 15. By November 30, the con-tractor shall revise the report, or document its rationale for theagency. Authorized agency officials may review the reports atwww.sam.gov.

(2) Agencies are required to compile annually an inven-tory of service contracts performed for, or on behalf of, theagency during the prior fiscal year in order to determine theextent of the agency’s reliance on service contractors. Agen-cies shall submit a service contract inventory to OMB by Jan-uary 15 annually. Then, each agency must post the inventoryon its Web site and publish a Federal Register Notice of Avail-ability by February 15 annually.

(3) Most of the required information is already collectedin the Federal Procurement Data System (FPDS). Informa-tion not collected in FPDS will be provided by the contractor,as specified in 52.204-14, Service Contract ReportingRequirements and 52.204-15, Service Contract

https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-contract-inventory-guidance.pdfhttps://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-contract-inventory-guidance.pdfhttps://www.whitehouse.gov/sites/whitehouse.gov/files/omb/procurement/memo/service-contract-inventory-guidance.pdfwww.sam.gov.


FAC 2005-100)
4.17-2 (
4.1704 Contracting officer responsibilities.(a) For other than indefinite-delivery contracts, the con-

tracting officer shall ensure that 52.204-14, Service ReportingRequirement, is included in solicitations, contracts, andorders as prescribed at 4.1705. For indefinite-delivery con-tracts, the contracting officer who awarded the contract shallensure that 52.204-15 Service Contract Reporting Require-ments for Indefinite-Delivery Contracts, is included in solic-itations and contracts as prescribed at 4.1705. The contractingofficer at the order level shall verify the clause’s inclusion inthe contract.

(b) If the contractor fails to submit a report in a timely man-ner, the contracting officer shall exercise appropriate contrac-tual remedies. In addition, the contracting officer shall makethe contractor’s failure to comply with the reporting require-ments a part of the contractor’s performance informationunder subpart 42.15.

4.1705 Contract clauses.(a) The contracting officer shall insert the clause at

52.204-14, Service Contract Reporting Requirements, insolicitations and contracts for services (including construc-tion) that meet or exceed the thresholds at 4.1703, except forindefinite-delivery contracts. This clause is not required foractions entirely funded by DoD, contracts awarded with ageneric entity identifier, or in classified solicitations, con-tracts, or orders.

(b) The contracting officer shall insert the clause at52.204-15, Service Contract Reporting Requirements forIndefinite-Delivery Contracts, in solicitations and indefinite-delivery contracts for services (including construction) whereone or more orders issued thereunder are expected to eachmeet or exceed the thresholds at 4.1703. This clause is notrequired for actions entirely funded by DoD, contractsawarded with a generic entity identifier, or in classified solic-itations, contracts, or orders.

SUBPART 5.1—DISSEMINATION OF INFORMATION 5.102

FAC 2005–100 AUGUST 22, 2018

5.1-1

5.000 Scope of part.This part prescribes policies and procedures for publiciz-

ing contract opportunities and award information.

5.001 Definition.“Contract action,” as used in this part, means an action

resulting in a contract, as defined in Subpart 2.1, includingactions for additional supplies or services outside the existingcontract scope, but not including actions that are within thescope and under the terms of the existing contract, such ascontract modifications issued pursuant to the Changes clause,or funding and other administrative changes.

5.002 Policy.Contracting officers must publicize contract actions in

order to—(a) Increase competition;(b) Broaden industry participation in meeting Government

requirements; and(c) Assist small business concerns, veteran-owned small

business concerns, service-disabled veteran-owned smallbusiness concerns, HUBZone small business concerns, smalldisadvantaged business concerns, and women-owned smallbusiness concerns in obtaining contracts and subcontracts.

5.003 Governmentwide point of entry.For any requirement in the FAR to publish a notice, the

contracting officer must transmit the notices to the GPE.

Subpart 5.1—Dissemination of Information

5.101 Methods of disseminating information.(a) As required by the Small Business Act

(15 U.S.C. 637(e)) and the Office of Federal ProcurementPolicy Act (41 U.S.C. 1708), contracting officers must dis-seminate information on proposed contract actions as follows:

(1) For proposed contract actions expected to exceed$25,000, by synopsizing in the GPE (see 5.201).

(2) For proposed contract actions expected to exceed$15,000, but not expected to exceed $25,000, by displaying ina public place, or by any appropriate electronic means, anunclassified notice of the solicitation or a copy of the solici-tation satisfying the requirements of 5.207(c). The notice mustinclude a statement that all responsible sources may submit aresponse which, if timely received, must be considered by theagency. The information must be posted not later than the datethe solicitation is issued, and must remain posted for at least10 days or until after quotations have been opened, whicheveris later.

(i) If solicitations are posted instead of a notice, thecontracting officer may employ various methods of satisfyingthe requirements of 5.207(c). For example, the contractingofficer may meet the requirements of 5.207(c) by stamping the

solicitation, by a cover sheet to the solicitation, or by placinga general statement in the display room.

(ii) The contracting officer need not comply with thedisplay requirements of this section when the exemptions at5.202(a)(1), (a)(4) through (a)(9), or (a)(11) apply, when oralsolicitations are used, or when providing access to a notice ofproposed contract action and solicitation through the GPE andthe notice permits the public to respond to the solicitationelectronically.

(iii) Contracting officers may use electronic postingof requirements in a place accessible by the general public atthe Government installation to satisfy the public displayrequirement. Contracting offices using electronic systems forpublic posting that are not accessible outside the installationmust periodically publicize the methods for accessing theinformation.

(b) In addition, one or more of the following methods maybe used:

(1) Preparing periodic handouts listing proposed con-tracts, and displaying them as in 5.101(a)(2).

(2) Assisting local trade associations in disseminatinginformation to their members.

(3) Making brief announcements of proposed contractsto newspapers, trade journals, magazines, or other mass com-munication media for publication without cost to theGovernment.

(4) Placing paid advertisements in newspapers or othercommunications media, subject to the following limitations:

(i) Contracting officers shall place paid advertise-ments of proposed contracts only when it is anticipated thateffective competition cannot be obtained otherwise (see5.205(d)).

(ii) Contracting officers shall not place advertise-ments of proposed contracts in a newspaper published andprinted in the District of Columbia unless the supplies or ser-vices will be furnished, or the labor performed, in the Districtof Columbia or adjoining counties in Maryland or Virginia(44 U.S.C. 3701).

(iii) Advertisements published in newspapers mustbe under proper written authority in accordance with44 U.S.C. 3702 (see 5.502(a)).

5.102 Availability of solicitations.(a)(1) Except as provided in paragraph (a)(5) of this sec-

tion, the contracting officer must make available through theGPE solicitations synopsized through the GPE, includingspecifications, technical data, and other pertinent informationdetermined necessary by the contracting officer. Transmis-sions to the GPE must be in accordance with the interfacedescription available via the Internet at https://www.fbo.gov.

(2) The contracting officer is encouraged, when practi-cable and cost-effective, to make accessible through the GPEadditional information related to a solicitation.

https://www.fbo.govhttp://uscode.house.gov/browse.xhtml;jsessionid=0665F19A2F7DA06F64F41C296D90B0D3http://uscode.house.gov/browse.xhtml;jsessionid=0665F19A2F7DA06F64F41C296D90B0D3http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t43t44+1482+4++%2844%29%20%20AND%20%28%2844%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t43t44+1482+4++%2844%29%20%20AND%20%28%2844%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20


FAC 2005–100)
5.1-2 (
(3) The contracting officer must ensure that solicitationstransmitted using electronic commerce are forwarded to theGPE to satisfy the requirements of paragraph (a)(1) of thissection.

(4) When an agency determines that a solicitation con-tains information that requires additional controls to monitoraccess and distribution (e.g., technical data, specifications,maps, building designs, schedules, etc.), the information shallbe made available through the enhanced controls of the GPE,unless an exception in paragraph (a)(5) of this section applies.The GPE meets the synopsis and advertising requirements ofthis part.

(5) The contracting officer need not make a solicitationavailable through the GPE as required in paragraph (a)(4) ofthis section, when—

(i) Disclosure would compromise the national secu-rity (e.g., would result in disclosure of classified information,or information subject to export controls) or create other secu-rity risks. The fact that access to classified matter may be nec-essary to submit a proposal or perform the contract does not,in itself, justify use of this exception;

(ii) The nature of the file (e.g., size, format) does notmake it cost-effective or practicable for contracting officers toprovide access to the solicitation through the GPE; or

(iii) The agency’s senior procurement executivemakes a written determination that access through the GPE isnot in the Government’s interest.

(6) When an acquisition contains brand name specifica-tions, the contracting officer shall include with the solicitationthe justification or documentation required by 6.302-1(c),13.106-1(b), or 13.501, redacted as necessary (see 6.305).

(b) When the contracting officer does not make a solicita-tion available through the GPE pursuant to paragraph (a)(5) ofthis section, the contracting officer—

(1) Should employ other electronic means (e.g., CD-ROM or electronic mail) whenever practicable and cost-effective. When solicitations are provided electronically onphysical media (e.g., disks) or in paper form, the contractingofficer must—

(i) Maintain a reasonable number of copies of solic-itations, including specifications and other pertinent informa-

tion determined necessary by the contracting officer (uponrequest, potential sources not initially solicited should bemailed or provided copies of solicitations, if available);

(ii) Provide copies on a “first-come-first-served”basis, for pickup at the contracting office, to publishers, tradeassociations, information services, and other members of thepublic having a legitimate interest (for construction, see36.211); and

(iii) Retain a copy of the solicitation and other doc-uments for review by and duplication for those requestingcopies after the initial number of copies is exhausted; and

(2) May require payment of a fee, not exceeding theactual cost of duplication, for a copy of the solicitationdocument.

(c) In addition to the methods of disseminating proposedcontract information in 5.101(a) and (b), provide, uponrequest to small business concerns, as required by15 U.S.C. 637(b)—

(1) A copy of the solicitation and specifications. In thecase of solicitations disseminated by electronic data inter-change, solicitations may be furnished directly to the elec-tronic address of the small business concern;

(2) The name and telephone number of an employee ofthe contracting office who will answer questions on the solic-itation; and

(3) Adequate citations to each applicable major Federallaw or agency rule with which small business concerns mustcomply in performing the contract.

(d) When electronic commerce (see Subpart 4.5) is used inthe solicitation process, availability of the solicitation may belimited to the electronic medium.

(e) Provide copies of a solicitation issued under other thanfull and open competition to firms requesting copies that werenot initially solicited, but only after advising the requester ofthe determination to limit the solicitation to a specified firmor firms as authorized under Part 6.

(f) This section 5.102 applies to classified contracts to theextent consistent with agency security requirements (see5.202(a)(1)).

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SUBPART 5.2—SYNOPSES OF PROPOSED CONTRACT ACTIONS 5.202

FAC 2005–100 AUGUST 22, 2018

5.2-1

Subpart 5.2—Synopses of Proposed Contract Actions

5.201 General.(a) As required by the Small Business Act

(15 U.S.C. 637(e)) and the Office of Federal ProcurementPolicy Act (41 U.S.C. 1708), agencies must make notices ofproposed contract actions available as specified in paragraph(b) of this section.

(b)(1) For acquisitions of supplies and services, other thanthose covered by the exceptions in 5.202 and the special situ-ations in 5.205, the contracting officer must transmit a noticeto the GPE, for each proposed—

(i) Contract action meeting the threshold in5.101(a)(1);

(ii) Modification to an existing contract for addi-tional supplies or services that meets the threshold in5.101(a)(1); or

(iii) Contract action in any amount when advanta-geous to the Government.

(2) When transmitting notices using electronic com-merce, contracting officers must ensure the notice is for-warded to the GPE.

(c) The primary purposes of the notice are to improve smallbusiness access to acquisition information and enhance com-petition by identifying contracting and subcontractingopportunities.

(d) The GPE may be accessed via the Internet at https://www.fbo.gov.

5.202 Exceptions.The contracting officer need not submit the notice required

by 5.201 when—(a) The contracting officer determines that—

(1) The synopsis cannot be worded to preclude disclo-sure of an agency’s needs and such disclosure would compro-mise the national security (e.g., would result in disclosure ofclassified information). The fact that a proposed solicitationor contract action contains classified information, or thataccess to classified matter may be necessary to submit a pro-posal or perform the contract does not, in itself, justify use ofthis exception to synopsis;

(2) The proposed contract action is made under the con-ditions described in 6.302-2 (or, for purchases conductedusing simplified acquisition procedures, if unusual and com-pelling urgency precludes competition to the maximum extentpracticable) and the Government would be seriously injuredif the agency complies with the time periods specified in5.203;

(3) The proposed contract action is one for which eitherthe written direction of a foreign government reimbursing theagency for the cost of the acquisition of the supplies or ser-vices for such government, or the terms of an international

agreement or treaty between the United States and a foreigngovernment, or international organizations, has the effect ofrequiring that the acquisition shall be from specified sources;

(4) The proposed contract action is expressly authorizedor required by a statute to be made through another Govern-ment agency, including acquisitions from the Small BusinessAdministration (SBA) using the authority of section 8(a) ofthe Small Business Act (but see 5.205(f)), or from a specificsource such as a workshop for the blind under the rules of theCommittee for Purchase from People Who Are Blind orSeverely Disabled;

(5) The proposed contract action is for utility servicesother than telecommunications services and only one sourceis available;

(6) The proposed contract action is an order placedunder subpart 16.5. When the order contains brand-namespecifications, see especially 16.505(a)(4);

(7) The proposed contract action results from accep-tance of a proposal under the Small Business InnovationDevelopment Act of 1982 (Pub. L. 97-219);

(8) The proposed contract action results from the accep-tance of an unsolicited research proposal that demonstrates aunique and innovative concept (see 2.101) and publication ofany notice complying with 5.207 would improperly disclosethe originality of thought or innovativeness of the proposedresearch, or would disclose proprietary information associ-ated with the proposal. This exception does not apply if theproposed contract action results from an unsolicited researchproposal and acceptance is based solely upon the unique capa-bility of the source to perform the particular research servicesproposed (see 6.302-1(a)(2)(i));

(9) The proposed contract action is made for perishablesubsistence supplies, and advance notice is not appropriate orreasonable;

(10) The proposed contract action is made under condi-tions described in 6.302-3, or 6.302-5 with regard to brandname commercial items for authorized resale, or 6.302-7, andadvance notice is not appropriate or reasonable;

(11) The proposed contract action is made under theterms of an existing contract that was previously synopsizedin sufficient detail to comply with the requirements of 5.207with respect to the current proposed contract action;

(12) The proposed contract action is by a Defenseagency and the proposed contract action will be made and per-formed outside the United States and its outlying areas, andonly local sources will be solicited. This exception does notapply to proposed contract actions covered by the WorldTrade Organization Government Procurement Agreement ora Free Trade Agreement (see subpart 25.4);

(13) The proposed contract action—(i) Is for an amount not expected to exceed the sim-

plified acquisition threshold;(ii) Will be made through a means that provides

access to the notice of proposed contract action through theGPE; and

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FAC 2005–100)
5.2-2 (
(iii) Permits the public to respond to the solicitationelectronically; or

(14) The proposed contract action is made under condi-tions described in 6.302-3 with respect to the services of anexpert to support the Federal Government in any current oranticipated litigation or dispute.

(b) The head of the agency determines in writing, after con-sultation with the Administrator for Federal Procurement Pol-icy and the Administrator of the Small BusinessAdministration, that advance notice is not appropriate orreasonable.

5.203 Publicizing and response time.Whenever agencies are required to publicize notice of pro-

posed contract actions under 5.201, they must proceed asfollows:

(a) An agency must transmit a notice of proposed contractaction to the GPE (see 5.201). All publicizing and responsetimes are calculated based on the date of publication. The pub-lication date is the date the notice appears on the GPE. Thenotice must be published at least 15 days before issuance of asolicitation, or a proposed contract action the Governmentintends to solicit and negotiate with only one source under theauthority of 6.302, except that, for acquisitions of commercialitems, the contracting officer may—

(1) Establish a shorter period for issuance of thesolicitation; or

(2) Use the combined synopsis and solicitation proce-dure (see 12.603).

(b) The contracting officer must establish a solicitationresponse time that will afford potential offerors a reasonableopportunity to respond to each proposed contract action,(including actions where the notice of proposed contractaction and solicitation information is accessible through theGPE), in an amount estimated to be greater than $25,000, butnot greater than the simplified acquisition threshold; or eachcontract action for the acquisition of commercial items in anamount estimated to be greater than $25,000. The contractingofficer should consider the circumstances of the individualacquisition, such as the complexity, commerciality, availabil-ity, and urgency, when establishing the solicitation responsetime.

(c) Except for the acquisition of commercial items (see5.203(b)), agencies shall allow at least a 30-day response timefor receipt of bids or proposals from the date of issuance of asolicitation, if the proposed contract action is expected toexceed the simplified acquisition threshold.

(d) Agencies shall allow at least a 30 day response timefrom the date of publication of a proper notice of intent to con-tract for architect-engineer services or before issuance of anorder under a basic ordering agreement or similar arrange-ment if the proposed contract action is expected to exceed thesimplified acquisition threshold.

(e) Agencies must allow at least a 45-day response time forreceipt of bids or proposals from the date of publication of thenotice required in 5.201 for proposed contract actions catego-rized as research and development if the proposed contractaction is expected to exceed the simplified acquisitionthreshold.

(f) Nothing in this subpart prohibits officers or employeesof agencies from responding to requests for information.

(g) Contracting officers may, unless they have evidence tothe contrary, presume the notice was published one day aftertransmission to the GPE. This presumption does not negatethe mandatory waiting or response times specified inparagraphs (a) through (d) of this section. Upon learning thata particular notice has not in fact been published within thepresumed timeframes, contracting officers should considerwhether the date for receipt of offers can be extended orwhether circumstances have become sufficiently compellingto justify proceeding with the proposed contract action underthe authority of 5.202(a)(2).

(h) In addition to other requirements set forth in this sec-tion, for acquisitions covered by the World Trade Organiza-tion Government Procurement Agreement or a Free TradeAgreement (see subpart 25.4), the period of time betweenpublication of the synopsis notice and receipt of offers mustbe no less than 40 days. However, if the acquisition fallswithin a general category identified in an annual forecast, theavailability of which is published, the contracting officer mayreduce this time period to as few as 10 days.

5.204 Presolicitation notices.Contracting officers must provide access to presolicitation

notices through the GPE (see 15.201 and 36.213-2). The con-tracting officer must synopsize a proposed contract actionbefore issuing any resulting solicitation (see 5.201 and 5.203).

5.205 Special situations.(a) Research and development (R&D) advance notices.

Contracting officers may transmit to the GPE advance noticesof their interest in potential R&D programs whenever marketresearch does not produce a sufficient number of concerns toobtain adequate competition. Advance notices must not beused where security considerations prohibit such publication.Advance notices will enable potential sources to learn of R&Dprograms and provide these sources with an opportunity tosubmit information which will permit evaluation of theircapabilities. Contracting officers must consider potentialsources which respond to advance notices for a subsequentsolicitation. Advanced notices must be entitled “Research andDevelopment Sources Sought” and include the name and tele-phone number of the contracting officer or other contractingactivity official from whom technical details of the project canbe obtained. This will enable sources to submit informationfor evaluation of their R&D capabilities. Contracting officers

SUBPART 5.2—SYNOPSES OF PROPOSED CONTRACT ACTIONS 5.207

(FAC 2005-100)
5.2-3
must synopsize (see 5.201) all subsequent solicitations forR&D contracts, including those resulting from a previouslysynopsized advance notice, unless one of the exceptions in5.202 applies.

(b) Federally Funded Research and Development Centers.Before establishing a Federally Funded Research and Devel-opment Center (FFRDC) (see Part 35) or before changing itsbasic purpose and mission, the sponsor must transmit at leastthree notices over a 90-day period to the GPE and the FederalRegister, indicating the agency’s intention to sponsor anFFRDC or change the basic purpose and mission of anFFRDC. The notice must indicate the scope and nature of theeffort to be performed and request comments. Notice is notrequired where the action is required by law.

(c) Special notices. Contracting officers may transmit tothe GPE special notices of procurement matters such as busi-ness fairs, long-range procurement estimates, prebid or pre-proposal conferences, meetings, and the availability of draftsolicitations or draft specifications for review.

(d) Architect-engineering services. Contracting officersmust publish notices of intent to contract for architect-engi-neering services as follows:

(1) Except when exempted by 5.202, contracting offi-cers must transmit to the GPE a synopsis of each proposedcontract action for which the total fee (including phases andoptions) is expected to exceed $25,000.

(2) When the total fee is expected to exceed $15,000 butnot exceed $25,000, the contracting officer must comply with5.101(a)(2). When the proposed contract action is not requiredto be synopsized under paragraph (d)(1) of this section, thecontracting officer must display a notice of the solicitation ora copy of the solicitation in a public place at the contractingoffice. Other optional publicizing methods are authorized inaccordance with 5.101(b).

(e) Public-private competitions under OMB Circular A-76. (1) The contracting officer shall make a formal publicannouncement for each streamlined or standard competition.The public announcement shall include, at a minimum, theagency, agency component, location, type of competition(streamlined or standard), activity being competed, incum-bent service providers, number of Government personnel per-forming the activity, name of the Competitive SourcingOfficial, name of the contracting officer, name of the AgencyTender Official, and projected end date of the competition.

(2) The contracting officer shall announce the end of thestreamlined or standard competition by making a formal pub-lic announcement of the performance decision. (See OMBCircular A-76.)

(f) Section 8(a) competitive acquisition. When a nationalbuy requirement is being considered for competitive acquisi-tion limited to eligible 8(a) participants under subpart 19.8,the contracting officer must transmit a synopsis of the pro-posed contract action to the GPE. The synopsis may be trans-

mitted to the GPE concurrent with submission of the agencyoffering (see 19.804-2) to the Small Business Administration(SBA). The synopsis should also include information—

(1) Advising that the acquisition is being offered forcompetition limited to eligible 8(a) participants;

(2) Specifying the North American Industry Classifica-tion System (NAICS) code;

(3) Advising that eligibility to participate may berestricted to 8(a) participants in either the developmental stageor the developmental and transitional stages; and

(4) Encouraging interested 8(a) participants to request acopy of the solicitation as expeditiously as possible since thesolicitation will be issued without further notice upon SBAacceptance of the requirement for the section 8(a) program.

(g) Notification to the public of rationale for bundledrequirement. The agency is encouraged to provide notificationof the rationale for any bundled requirement to the GPE beforeissuing the solicitation of any bundled requirement (see7.107-5(b)(2)).

5.206 Notices of subcontracting opportunities.(a) The following entities may transmit a notice to the GPE

to seek competition for subcontracts, to increase participationby qualified HUBZone small business, small, small disadvan-taged, women-owned small business, veteran-owned smallbusiness and service-disabled veteran-owned small businessconcerns, and to meet established subcontracting plan goals:

(1) A contractor awarded a contract exceeding$150,000 that is likely to result in the award of anysubcontracts.

(2) A subcontractor or supplier, at any tier, under a con-tract exceeding $150,000, that has a subcontracting opportu-nity exceeding $15,000.

(b) The notices must describe—(1) The business opportunity;(2) Any prequalification requirements; and(3) Where to obtain technical data needed to respond to

the requirement.

5.207 Preparation and transmittal of synopses.(a) Content. Each synopsis transmitted to the GPE must

address the following data elements, as applicable:(1) Action Code.(2) Date.(3) Year.(4) Contracting Office ZIP Code.(5) Product or Service Code.(6) Contracting Office Address.(7) Subject.(8) Proposed Solicitation Number.(9) Closing Response Date.(10) Contact Point or Contracting Officer.(11) Contract Award and Solicitation Number.


FAC 2005–100 AUGUST 22, 2018

5.2-4

(12) Contract Award Dollar Amount.(13) Line Item Number.(14) Contract Award Date.(15) Contractor.(16) Description.(17) Place of Contract Performance.(18) Set-aside Status.

(b) Transmittal. Transmissions to the GPE must be inaccordance with the interface description available via theInternet at https://www.fbo.gov.

(c) General format for “Description.” Prepare a clear andconcise description of the supplies or services that is notunnecessarily restrictive of competition and will allow a pro-spective offeror to make an informed business judgment as towhether a copy of the solicitation should be requested includ-ing the following, as appropriate:

(1) National Stock Number (NSN) if assigned.(2) Specification and whether an offeror, its product, or

service must meet a qualification requirement in order to beeligible for award, and identification of the office from whichadditional information about the qualification requirementmay be obtained (see subpart 9.2).

(3) Manufacturer, including part number, drawingnumber, etc.

(4) Size, dimensions, or other form, fit or functionaldescription.

(5) Predominant material of manufacture.(6) Quantity, including any options for additional

quantities.(7) Unit of issue.(8) Destination information.(9) Delivery schedule.(10) Duration of the contract period.(11) Sustainable acquisition requirements (or a descrip-

tion of high-performance sustainable building practicesrequired, if for design, construction, renovation, repair, ordeconstruction) (see parts 23 or 36).

(12) For a proposed contract action in an amount esti-mated to be greater than $25,000 but not greater than the sim-plified acquisition threshold, enter—

(i) A description of the procedures to be used inawarding the contract (e.g., request for oral or written quota-tion or solicitation); and

(ii) The anticipated award date.(13) For Architect-Engineer projects and other projects

for which the product or service codes are insufficient, pro-vide brief details with respect to: location, scope of servicesrequired, cost range and limitations, type of contract, esti-mated starting and completion dates, and any significant eval-uation factors.

(14)(i) If the solicitation will include the FAR clause at52.225-3, Buy American—Free Trade Agreements—IsraeliTrade Act, or an equivalent agency clause, insert the following

notice in the synopsis: “One or more of the items under thisacquisition is subject to Free Trade Agreements.”

(ii) If the solicitation will include the FAR clause at52.225-5, Trade Agreements, or an equivalent agency clause,insert the following notice in the synopsis: “One or more ofthe items under this acquisition is subject to the World TradeOrganization Government Procurement Agreement and FreeTrade Agreements.”

(iii) If the solicitation will include the FAR clause at52.225-11, Buy American-Construction Materials underTrade Agreements, 52.225-23, Required Use of AmericanIron, Steel, and Manufactured Goods-Buy American Statute-Construction Materials under Trade Agreements, or an equiv-alent agency clause, insert the following notice in the synop-sis: “One or more of the items under this acquisition is subjectto the World Trade Organization Government ProcurementAgreement and Free Trade Agreements.”

(15) In the case of noncompetitive contract actions(including those that do not exceed the simplified acquisitionthreshold), identify the intended source and insert a statementof the reason justifying the lack of competition.

(16)(i) Except when using the sole source authority at6.302-1, insert a statement that all responsible sources maysubmit a bid, proposal, or quotation which shall be consideredby the agency.

(ii) When using the sole source authority at 6.302-1,insert a statement that all responsible sources may submit acapability statement, proposal, or quotation, which shall beconsidered by the agency.

(17) If solicitations synopsized through the GPE willnot be made available through the GPE, provide informationon how to obtain the solicitation.

(18) If the solicitation will be made available to inter-ested parties through electronic data interchange, provide anyinformation necessary to obtain and respond to the solicitationelectronically.

(19) If the technical data required to respond to thesolicitation will not be furnished as part of such solicitation,identify the source in the Government, such as https://www.fbo.gov, from which the technical data may be obtained.

(d) Set-asides. When the proposed acquisition provides fora total or partial small business program set-aside, or when theproposed acquisition provides for a local area set-aside (seesubpart 26.2), the contracting officer shall identify the type ofset-aside in the synopsis and in the solicitation.

(e) Codes to be used in Synopses to identify services or sup-plies. Contracting officers must use one of the classificationcodes identified at https://www.fbo.gov to identify services orsupplies in synopses.

(f) Notice of solicitation cancellation. Contracting officersmay publish notices of solicitation cancellations (or indefinitesuspensions) of proposed contract actions in the GPE.

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SUBPART 5.7—PUBLICIZING REQUIREMENTS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 5.705

FAC 2005–100 AUGUST 22, 2018

5.7-1

Subpart 5.7—Publicizing Requirements Under the American Recovery and

Reinvestment Act of 2009

5.701 Scope.This subpart prescribes posting requirements for presolic-

itation and award notices for actions funded in whole or in partby the American Recovery and Reinvestment Act of 2009(Pub. L. 111-5) (Recovery Act). The requirements of this sub-part enhance transparency to the public.

5.702 Applicability.This subpart applies to all actions expected to exceed

$25,000 funded in whole or in part by the Recovery Act.Unlike subparts 5.2 and 5.3, this subpart includes additionalrequirements for orders and for actions that are not both fixed-price and competitive.

5.703 Definition.As used in this subpart—“Task or delivery order contract” means a “delivery order

contract,” and a “task order contract,” as defined in 16.501-1.For example, it includes Governmentwide Acquisition Con-tracts (GWACs), multi-agency contracts (MACs), and otherindefinite-delivery/indefinite-quantity contracts, whether sin-gle award or multiple award. It also includes Federal SupplySchedule contracts (including Blanket Purchase Agreementsunder Subpart 8.4).

5.704 Publicizing preaward.(a)(1) Follow the publication procedures at 5.201.

(2) In addition, notices of proposed contract actions arerequired for orders exceeding $25,000, funded in whole or inpart by the Recovery Act, which are issued under task or deliv-ery order contracts. This does not include modifications toexisting orders, bu

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