PART 401-AGRICULTURE ACQUISITION REGULATION SYSTEM

Sec.

401.000 Scope of Part.

Subpart 401.1-Purpose, Authority, Issuance

401.101 Purpose.

401.102 Authority.

(a) This subpart establishes Chapter 4, the Department of Agriculture Acquisition Regulation (AGAR), within Title 48 of the Code of Federal Regulations. The AGAR provides for the codification and publication of uniform policies and procedures for acquisitions by contracting activities within the Department.

(b) 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. 401.102

Authority.

The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 U.S.C. 486(c). Pursuant to 7 CFR 2.76 the Director, Office of Operations, has the delegated authority to promulgate Departmental acquisition regulations. 401.103 Applicability.

The FAR and AGAR apply to all Department of Agriculture (USDA) acquisitions of supplies and services (including construction) which obligate appropriated funds, unless otherwise specified in this regulation or excepted by law. For acquisitions using nonappropriated funds, these regulations shall be used as guides to the maximum extent feasible and consistent with efficient program operations.

401.103-70 Exclusions.

Certain USDA policies and procedures which come within the scope of this chapter may be excluded from the

AGAR under appropriately justified circumstances, such as:

(a) Subject matter which bears a security classification (See FAR 4.402). (b) Subject matter which is effective for a period less than 6 months.

(c) Subject matter which is instituted on an experimental basis for a reasonable period.

401.104 Issuance.

401.104-1 Publication and code arrangement.

(a) The AGAR is issued in the Code of Federal Regulations 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 Code of the Federal Regulations, and (3) looseleaf form for distribution within the Department.

401.104-2 Arrangement of regulations.

(a) General. The AGAR is divided into the same subchapters, parts, subparts, sections, and subsections as the FAR. However, when the FAR coverage is adequate by itself, there will be no AGAR counterpart. AGAR coverage parallels the FAR in format, arrangement, and numbering system.

(b) Numbering. The AGAR numbering system conforms to the FAR. The first digit, "4", represents the chapter number assigned to USDA, followed by a 2-digit part number, and then a decimal point. Numbers after the decimal point represent respectively the subpart, section (two digits) and subsection separated from the former by a dash. For example, the AGAR implementation of FAR 1.104 is shown as 401.104, and of FAR 15.804-3 as 415.804-3. Subdivisions at the section and subsection level are indicated by parenthetical alphanumerics in accordance with the FAR scheme. However, subdivisions below the section and subsection levels may not always correlate directly to FAR designated paragraphs and subparagraphs.

[49 FR 12111, Mar. 28, 1984, as amended at 50 FR 14197, Apr. 10, 1985]

401.104-3 Copies.

Copies of the AGAR published in the FEDERAL REGISTER or Code of Federal Regulations may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.

401.105-70 OMB approval under the Paperwork Reduction Act.

The OMB control number 0505-0005 applies to USDA solicitations and specified information collections within the AGAR.

[50 FR 14197, Apr. 10, 1985]

Subpart 401.2—Administration 401.201 Maintenance of the FAR. 401.201-1 The two councils.

(a) The Department is represented on the Civilian Agency Acquisition Council by a Policy Team member of the Procurement Division, Office of Operations.

(b) The Procurement Division will coordinate proposed FAR revisions with interested contracting activities and serve as the point of contact for interpreting regulations or receiving FAR revisions advocated by contracting activities.

contracting activities) and contractors or prospective contractors.

(b) Each designated Head of a Contracting Activity (HCA) is authorized to issue or authorize the issuance of, at any organizational level, internal guidance which does not have a significant effect on contractors or prospective contractors. "Significant effect" is defined generally as something which has an effect beyond the internal operating procedures of the activity, or has a cost or administrative impact on offerors or contractors. Internal guidance issued by contracting activities will not be published in the FEDERAL REGISTER. HCAS shall ensure that the guidance, procedures, or instructions issued:

(1) Are consistent with the policies and procedures contained in this regulation;

(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 suffixes to the chapter number as follows:

4A Agricultural Marketing Service. 4B Agricultural Research Service. 4C Agricultural Stabilization and Conservation Service.

4D Farmers Home Administration. 4E Food Safety and Inspection Service. 4F Foreign Agricultural Service. 4G Forest Service.

4H Rural Electrification Administration. 41 Soil Conservation Service.

4J Economics Management Staff.

4K Food and Nutrition Service.

4L Animal and Plant Health Inspection Service.

4M Federal Crop Insurance Corporation. 4N Office of Operations, Procurement Division (Procurement Operations).

40 [Reserved].

4P Office of International Cooperation and Development.

4R Office of the Inspector General. 4S Extension Service.

[49 FR 12111, Mar. 28, 1984, as amended at 50 FR 14197, Apr. 10, 1985]

401.303 Codification and public participation.

(a) The AGAR is codified as Chapter 4 Title 48 of the Code of Federal Regulations.

(b) Section 553(a)(2) of the Administrative Procedures Act, 5 U.S.C. 553, provides an exception from the standard public rulemaking procedures to the extent that the rule involves a matter related to agency management or personnel or to public property, loans, grants, benefits or contracts. OFPP Policy Letter 83-2 requires rulemaking for substantive acquisition rules but allows discretion in the matter for other than significant issues meeting the stated criteria. Accordingly, AGAR has been promulgated and may be revised from time to time in accordance with the rulemaking procedures of the Administrative Procedures Act and OFPP Policy Letter 83-2. This procedure for significant subject matter generally involves issuing a notice of proposed rulemaking inviting public comment, review and analysis of comments received, and publication of a final rule. The final rule includes a discussion of the public comments received and describes any changes made as a result of the comments.

401.304 Agency control and compliance procedures.

(a) The AGAR System is under the direct oversight and control of the Director, Office of Operations, 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 Director, Office of Operations, is also responsible for review and issuance of unpublished, Department-wide internal guidance under the AGAR System.

(c) HCA's are responsible for establishment and implementation of formal procedures for oversight and control of all unpublished internal guidance issued to implement FAR or AGAR requirements. These procedures shall be subject to the review and approval by the Director, Office of Operations, and shall include:

(1) Provisions for centralized issuance of all guidance and instructions using a directives system;

(2) Methods for periodic review and updating of all issuances;