Copies of the DOLPR in both the FEDERAL REGISTER and the Code of Federal Regulations form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402.

§ 29-1.006-4 Coordination.

Responsibility for the development of the DOLPR is assigned to the Assistant Secretary for Administration and Management. In developing those regulations, the Assistant Secretary I will solicit the views of the Agencies concerned. In addition to the Assistant Secretary's responsibilities imposed by statute and regulation, the Solicitor is responsible for determining the legality of all proposed regulations and policy and for making arrangements for the publication of those regulations and any subsequent implementation thereof in the FEDERAL REGISTER. [36 FR 3054, Feb. 17, 1971, as amended at 42 FR 40197, Aug. 9, 1977]

§ 29-1.007 Arrangement.

§ 29-1.007-1 General plan.

The DOLPR employ the same general numbering system and nomenclature used in the FPR.

§ 29-1.007-2 Numbering.

(a) A particular procurement policy or procedure is identified by the same number in both the FPR and DOLPR except that the number preceding the particular part, subpart, section, or subsection is either "1" if the refer

ence is to FPR or "29" if the reference is to DOLPR.

(b) Where Chapter 29 implements a part, subpart, section, or subsection of the FPR, the implementing part, subpart, section, or subsection of Chapter 29 will be numbered (and captioned) to correspond to the FPR part, subpart, section, or subsection.

(c) Where Chapter 29 supplements the FPR and thus deals with subject matter not contained in the FPR, numbers in the group 50 through 99 will be assigned to the respective supplementing part, subpart, section, or subsection.

(d) Where the subject matter contained in the part, subpart, section, or subsection of the FPR requires no implementation, the DOLPR will contain no corresponding part, subpart, section, or subsection. Thus, there may be gaps in the DOLPR of part, subpart, section, or subsection numbers. In such cases, reference must be made to the FPR for policy and procedure applicable to all DOL contracts.

§ 29-1.008 Agency implementation.

§ 29-1.008-50 Department of Labor (DOL) Agency implementation.

DOL Agencies may implement or supplement the FPR or DOLPR with internal instructions whose applicability is not DOL-wide, but nevertheless necessary to implement or supplement the FPR or the DOLPR. DOL Agencies may request publication in the DOLPR of procurement instructions and other procurement material considered of interest to the general public. Such instructions shall not extensively repeat, paraphrase, or otherwise restate the FPR or the DOLPR and shall be numbered in accordance with § 1-1.007-2 of this title except that the numbers prescribed there and in § 29-1.007-2 shall be suffixed by the alphabetic abbreviation or other symbol of the respective Agency issuing the instructions. Whether the instructions are to be published as part of the DOLPR or not, such proposed instructions and material that implement or supplement the DOLPR or the FPR must be submitted, prior to their publication, for the review and concurrence of the Assistant Sec

retary for Administration and Management and of the Solicitor. In the case of internal procurement instructions, the purpose of such review is to ascertain that such instructions are consistent with the FPR and the DOLPR and that they do not contain material which should be issued as the DOLPR. In the case of instructions or other material submitted for inclusion in the DOLPR, after concurrence by interested DOL Agencies, the necessary arrangements will be made for publication of such instructions or other material in the FEDERAL REGISTER.

[42 FR 40197, Aug. 9, 1977]

§ 29-1.009 Deviation.

§ 29-1.009-2 Procedure.

Deviations (as described in § 1-1.0091 of this title) shall be kept to a minimum and shall be controlled as follows:

(a) Deviations from either the FPR or the DOLPR in both individual cases and classes of cases must be approved in advance by the Assistant Secretary for Administration and Management. Requests for approval of such deviations may be initiated by contracting officers. Requests shall be submitted, in writing, to the Assistant Secretary for Administration and Management either directly or with such prior preliminary approvals as may be required by the internal procedures of the contracting officer's Agency. Such requests shall be submitted as far in advance as the exigencies of the situation will permit. Each request for a deviation shall contain the following:

(1) A clear statement of the deviation desired;

(2) The reasons the deviation is considered necessary and would be in the best interest of the Government;

(3) The name of the contractor and identification of the contract affected, if applicable;

(4) A statement as to whether the deviation has been requested previously, and, if so, the circumstances and disposition of the previous request; and

(5) Any pertinent background information which will contribute to a full understanding of the desired deviation

including, but not limited to, the identification of the specific programs affected together with suitable notation that appropriate notice, including information copies of the request for deviation, has been given to the director or other chief official of the program or activity affected.

(b) If a requested deviation is considered appropriate, approval will be provided where the deviation applies to an individual case by memorandum addressed to the requesting office with copies to interested offices. The requesting office shall retain a copy of each request for approval and the disposition made thereon in its contract files.

(c) Where the deviation is from the FPR and applies to a class of cases, if time permits, necessary coordination with the General Services Administration will be effected by the Assistant Secretary for Administration and Management. Such class deviations shall be issued as a part of the DOLPR. Where time does not permit, the Assistant Secretary for Administration and Management may authorize a deviation, and by telephone, if need be, with later confirmation in writing. In such an instance, this offiIcial will later inform GSA of the deviation and circumstances under which it was required. Whenever a requested deviation is disapproved, the notice thereof shall be in writing, by the Assistant Secretary for Administration and Management, with copies to other interested offices.

(d) When a deviation in a contract form or provision is authorized, physical alteration or change may not be made in the printed form itself but shall be made by appropriate written notation in the schedule, specification, or elsewhere, under an appropriate title (e.g., under a part of a schedule entitled, "Alteration to General Provisions") which directs the reader's attention to the change in a manner that permanently fixes the extent of the change for a particular transaction or instrument.

(e) New FPR issuances should be carefully reviewed upon receipt so that requests for deviations can be acted upon prior to the effective date, whenever practicable.

(f) A central record of deviations, including copies of requests, approvals, and disapprovals, will be maintained by the Assistant Secretary for Administration and Management.

[36 FR 3054, Feb. 17, 1971, as amended at 42 FR 40198, Aug. 9, 1977]

Subpart 29-1.2-Definition of Terms

§ 29-1.204 Head of the agency.

Where the FPR and the DOLPR refer to the "head of the agency" or "agency head" as a level of approval, such a reference shall mean the Assistant Secretary for Administration and Management.

Subpart 29-1.3-General Policies

§ 29-1.302 Procurement sources.

§ 29-1.302-3 Contracts between the Government and Government employees or business concerns substantially owned or controlled by Government employ

ees.

(a) No contracts, including those for rental of real or personal property, shall be let under the circumstances set out in § 1-1.302-3(a) of this title, except as provided in the FPR and DOLPR. Nor shall contracts knowingly be entered into, subject to the same exception, which will result in subcontracts, regardless of tier, with employees of the Government or business concerns or organizations which are substantially owned or controlled by Government employees.

(b) Approval of a decision to grant an exception as provided from § 291.302-3(a) shall be obtained, in writing, from the Assistant Secretary for Administration and Management by the head of the procuring activity.

§ 29-1.302-50 Contracts between the Government and former Government employees.

Negotiated contracts or grants or amendments to existing contracts or grants which constitute new procurement (including those for the rental of real or personal property) may be entered into with former employees of DOL or with firms in which former employees are known to have a sub

stantial interest, within a period of 1 year subsequent to the termination of the individual's employment by DOL, only with the prior written approval of the Assistant Secretary for Administration and Management.

[42 FR 40198, Aug. 9, 1977]

§ 29-1.303 Approval signatures.

Contracting officers will personally sign all contracts and modifications thereto. Duly authorized contracting officer representatives for purposes of administering and monitoring contracts may sign contract correspondence while acting within the scope of the authority delegated to them. The signing of contractual instruments, including modifications, will not be accomplished by facsimile stamps.

§ 29-1.305 Specifications.

§ 29-1.305-3 Deviations from Federal Specifications.

Any deviation from a Federal specification contemplated under § 1-1.3053 of this title shall be submitted, prior to its use, for approval to the head of the procuring activity who shall be the designated official within the meaning of § 1-1.305-3 of this title. The request shall include a statement describing the deviation being requested together with any justification and, where applicable, a recommendation for revision or amendment of the specification itself.

§ 29-1.315 Use of liquidated damages provisions in procurement contracts.

§ 29-1.315-2 Policy.

(a) Determination as to the use of liquidated damages provisions in a contract, and of the rate of such damages, is solely the responsibility of the contracting officer. In making the determination, the contracting officer shall obtain essential facts from the requisitioning office and be guided by a strict application of the criteria set forth in § 1-1.315-2 of this title and by the following general policies:

(1) Liquidated damages provisions will not be used routinely in DOL contracts, but they may be used when failure to meet the completion or delivery schedule will likely cause DOL

to suffer substantial damages, the amount of which is difficult or impossible to determine or prove.

(2) Where the quantity of an item being procured includes a number of items the need for which is urgent, care shall be taken to have the liquidated damages provisions apply only to the urgently needed quantity. However, where rates are applied to quantities or groups, assessment of damages will not be prorated for delay of partial quantities.

(3) Liquidated damages provisions generally should not be used: (i) In contracts for supplies or services required for routine administrative purposes; (ii) in contracts for standard commercial or "off-the-shelf" items; (iii) in any contract where time of performance is not a primary factor; (iv) in small purchases (under $10,000); (v) in study, experimental, development, or research contracts including equipment contracts requiring developmental work; and (vi) where the delivery schedule does not reflect the date the item is actually needed but the date the item is desired.

(4) A fixed formula, based on percentage of value, shall not be used to establish the rate of damages. Consideration shall be given to the following factors in establishing the rate of damages: (i) The number of programs affected; (ii) the importance of the item in relation to the program for which it is intended; (iii) the relative importance of the program or programs in the overall mission of DOL; (iv) the reasonableness of the lead time for delivery in the contract schedule; and (v) any unusual damages that can be anticipated.

(5) Unless it is clear that partial delivery will proportionately reduce the extent of probable damages, rates shall not be applied to individual units of an item, but rather to quantities of an item or to groups of items which are required for delivery or completion at the same time. Rates should generally be expressed in terms of even dollars per day of delay per unit of the quantity of units to which the clause is applicable. When making partial or progress payments due anytime after the delivery date has passed for undelivered items covered by a liquidated

damages provision, deductions for liquidated damages should be made for the actual number of days of delay that have elapsed from the time of the scheduled delivery to the time the partial or progress payment was due to the contractor.

(b) Any contract providing for liquidated damages shall contain a maximum dollar limitation on contractor's total liability as a result of the liquidated damages clause, which limit shall be appropriate for the circumstances of the particular procurement. In no event, however, shall such a dollar limit exceed the total amount of dollars the Government would have owed the contractor for full, complete, timely, and satisfactory performance.

(c) When liquidated damages provisions are used in a contract, the contracting officer is responsible for the adequacy of documentation in the file showing why delivery is critical, the nature of the damage that would be suffered by the Government if the contractor failed to make delivery and why the amount of such damages is either impossible to ascertain or prove either at the time the contract is awarded or within a reasonable time thereafter.

(d) Where liquidated damage provisions are used, they shall be strictly enforced. In such cases where the contractor's delay was clearly caused, at least in part, by the Government which contributed, substantially if not exclusively, to the contractor's delayed delivery, the contracting officer shall take such matters into consideration as well as any other legal excuse of the contractor and shall make findings appropriate to the situation. However, it shall be the contractor's responsibility to give notice of delays in connection with any request for contract time extension or request for remission of damages, in whole or in part. In either event, the request shall be amply documented by the contractor. If it is determined that the liquidated damages are applicable, the contracting officer shall have no authority to waive any Government rights in the matter. This does not preclude the contracting officer's initiating recommendations for remission of liquidated damages by the Comptroller General.

(e) A submission to the Comptroller General recommending the remission of liquidated damages in accordance with 41 U.S.C. 256a shall be prepared for the signature of the Assistant Secretary for Administration and Management. All relevant facts and documents shall accompany the submission, e.g.: (1) Conditions which prompted the assessment of damages, (2) findings and decisions of the contracting officer, and (3) the decision of the Board of Contract Appeals, if any.

(f) On a default termination of a fixed price supply contract, liquidated damages continue to accrue, even after default, until the DOL can reasonably obtain delivery of the items through reprocurement. This is in addition to any other DOL remedy under the Default provision for recovering the excess costs to DOL of reprocuring from other sources the items that were to have been obtained in the terminated contract. If, however, the DOL does not reprocure the items, liquidated damages shall not be assessed against the contractor.

[36 FR 3054, Feb. 17, 1971, as amended at 42 FR 40198, Aug. 9, 1977]

§ 29-1.318 Disputes clause.

§ 29-1.318-1 Contracting officer's decision under a Disputes clause.

When a final decision of the contracting officer involves a dispute that is or may be subject to the Disputes clause, the paragraph set forth below shall be included in the decision:

This decision is made in accordance with the Disputes clause and shall be final and conclusive as provided therein, unless within 30 days from the date of receipt of this decision, a written notice of appeal (in triplicate) addressed to the Secretary of Labor is mailed or otherwise furnished to the Contracting Officer. The notice of appeal, which is to be signed by you as the contractor, or by an attorney acting on your behalf, and which may be in letter form, should indicate that an appeal is intended, shall refer to this decision, and shall identify the contract by number. The notice of appeal should include a statement of the reasons why the decision is considered to be erroneous, a concise specification of the errors complained of, and a statement of the relief sought.

§ 29-1.350 Buying in.

"Buying in" refers to the practice, in some procurements involving price competition, of a contractor's attempting to obtain a contract award by knowingly offering a price lower than the contractor's anticipated cost of performance. The usual motive is the expectation by the contractor of either (a) increasing the contract price during the period of performance through change orders or other means, or (b) receiving future "followon" contracts at prices high enough to recover any losses on the original "buy-in" contract. It occurs sometimes in response to requests for proposals for cost reimbursement type contracts. While the contractor's deliberately understating anticipated costs may not, in itself, result in a contract award, nevertheless it can exert a favorable influence toward that contractor's selection. Such a practice is not illegal. However, it should not be encouraged since any apparent savings offered are frequently illusory, especially where its long term effect may diminish competition or where it may lead to poor contract performance resulting from the stinting use of the contractor's resources in the contractor's attempting to minimize losses resulting from the award. Where there is reason to believe that "buying in" has occurred, contracting officers shall assure that amounts thereby excluded in the contractor's development of the original contract price are not recovered in the pricing of change orders or in followon procurements subject to cost analysis. In cases of suspected "buying in," the contracting officer shall attempt to eliminate the contractor's motive for "buying in." Failing that, the contracting officer shall substantially reduce the contractor's benefit from the practice. Some techniques for neutralizing a contractor's benefit from "buying in" include: analyzing future needs for recurring items to determine if either the techniques of "multiyear procurement" or the inclusion within the contract of priced options for the purchase by the Government of additional quantities is warranted; pricing out with extreme care any change orders or any noncompetitive procurement for additional quantities from