Page images

ment regulations for general applica- ence is to FPR or “29" if the reference tion to all agencies. Specific succeed is to DOLPR. ing chapters are assigned to the var- (b) Where Chapter 29 implements a ious agencies for their implementing part, subpart, section, or subsection of and supplementing material. DOL is the FPR, the implementing part, subexclusively assigned Chapter 29 for its part, section, or subsection of Chapter contracting material.

29 will be numbered (and captioned)

to correspond to the FPR part, sub$ 29-1.006-2 Publication.

part, section, or subsection. The DOLPR appear in the Code of (c) Where Chapter 29 supplements Federal Regulations as Chapter 29 of the FPR and thus deals with subject Title 41, Public Contracts and Proper matter not contained in the FPR, ty Management. The DOLPR are pub- numbers in the group 50 through 99 lished, as they are issued in the daily will be assigned to the respective supissues of the FEDERAL REGISTER and in plementing part, subpart, section, or cumulated form in the annually pub- subsection. lished Code of Federal Regulations.

(d) Where the subject matter con

tained in the part, subpart, section, or $ 29-1.006-3 Copies.

subsection of the FPR requires no imCopies of the DOLPR in both the plementation, the DOLPR will contain FEDERAL REGISTER and the Code of no corresponding part, subpart, secFederal Regulations form may be pur- tion, or subsection. Thus, there may chased from the Superintendent of be gaps in the DOLPR of part, subDocuments, Government Printing part, section, or subsection numbers. Office, Washington, D.C. 20402.

In such cases, reference must be made

to the FPR for policy and procedure $ 29-1.006–4 Coordination.

applicable to all DOL contracts. Responsibility for the development of the DOLPR is assigned to the As $ 29-1.008 Agency implementation. sistant Secretary for Administration and Management. In developing those

$ 29-1.008–50 Department of Labor (DOL) regulations, the Assistant Secretary Agency implementation. will solicit the views of the Agencies DOL Agencies may implement or concerned. In addition to the Assistant supplement the FPR or DOLPR with Secretary's responsibilities imposed by internal instructions whose applicabilstatute and regulation, the Solicitor is ity is not DOL-wide, but nevertheless responsible for determining the legal necessary to implement or supplement ity of all proposed regulations and the FPR or the DOLPR. DOL Agenpolicy and for making arrangements cies may request publication in the for the publication of those regula DOLPR of procurement instructions tions and any subsequent implementa and other procurement material contion thereof in the FEDERAL REGISTER. sidered of interest to the general (36 FR 3054, Feb. 17, 1971, as amended at 42

public. Such instructions shall not exFR 40197, Aug. 9, 1977)

tensively repeat, paraphrase, or other

wise restate the FPR or the DOLPR $ 29-1.007 Arrangement.

and shall be numbered in accordance

with $ 1-1.007-2 of this title except § 29-1.007-1 General plan.

that the numbers prescribed there and The DOLPR employ the same gener in § 29-1.007-2 shall be suffixed by the al numbering system and nomencla alphabetic abbreviation or other ture used in the FPR.

symbol of the respective Agency issu

ing the instructions. Whether the $ 29-1.007-2 Numbering.

instructions are to be published as (a) A particular procurement policy part of the DOLPR or not, such proor procedure is identified by the same posed instructions and material that number in both the FPR and DOLPR implement or supplement the DOLPR except that the number preceding the or the FPR must be submitted, prior particular part, subpart, section, or to their publication, for the review subsection is either “1” if the refer- and concurrence of the Assistant Sec

retary for Administration and Man- including, but not limited to, the idenagement and of the Solicitor. In the tification of the specific programs afcase of internal procurement instruc- fected together with suitable notation tions, the purpose of such review is to that appropriate notice, including inascertain that such instructions are formation copies of the request for deconsistent with the FPR and the viation, has been given to the director DOLPR and that they do not contain or other chief official of the program material which should be issued as the or activity affected. DOLPR. In the case of instructions or (b) If a requested deviation is considother material submitted for inclusion ered appropriate, approval will be proin the DOLPR, after concurrence by vided where the deviation applies to interested DOL Agencies, the neces- an individual case by memorandum sary arrangements will be made for addressed to the requesting office with publication of such instructions or copies to interested offices. The reother material in the FEDERAL REGIS

questing office shall retain a copy of TER.

each request for approval and the dis(42 FR 40197, Aug. 9, 1977)

position made thereon in its contract

files. $ 29-1.009 Deviation.

(c) Where the deviation is from the

FPR and applies to a class of cases, if $ 29-1.009-2 Procedure.

time permits, necessary coordination Deviations (as described in § 1-1.009- with the General Services Administra1 of this title) shall be kept to a mini tion will be effected by the Assistant mum and shall be controlled as fol Secretary for Administration and lows:

Management. Such class deviations (a) Deviations from either the FPR shall be issued as a part of the or the DOLPR in both individual cases DOLPR. Where time does not permit, and classes of cases must be approved the Assistant Secretary for Adminisin advance by the Assistant Secretary tration and Management may authorfor Administration and Management. ize a deviation, and by telephone, if Requests for approval of such devi- need be, with later confirmation in ations may be initiated by contracting writing. In such an instance, this offiofficers. Requests shall be submitted, cial will later inform GSA of the deviin writing, to the Assistant Secretary ation and circumstances under which for Administration and Management it was required. Whenever a requested either directly or with such prior pre- deviation is disapproved, the notice liminary approvals as may be required thereof shall be in writing, by the Asby the internal procedures of the con sistant Secretary for Administration tracting officer's Agency. Such re and Management, with copies to other quests shall be submitted as far in ad interested offices. vance as the exigencies of the situa (d) When a deviation in a contract tion will permit. Each request for a de- form or provision is authorized, physiviation shall contain the following: cal alteration or change may not be

(1) A clear statement of the devi made in the printed form itself but ation desired;

shall be made by appropriate written (2) The reasons the deviation is con notation in the schedule, specification, sidered necessary and would be in the or elsewhere, under an appropriate best interest of the Government;

title (e.g., under a part of a schedule (3) The name of the contractor and entitled, “Alteration to General Proviidentification of the contract affected, sions") which directs the reader's atif applicable;

tention to the change in a manner (4) A statement as to whether the that permanently fixes the extent of deviation has been requested previous the change for a particular transacly, and, if so, the circumstances and tion or instrument. disposition of the previous request; (e) New FPR issuances should be and

carefully reviewed upon receipt SO (5) Any pertinent background infor- that requests for deviations can be mation which will contribute to a full acted upon prior to the effective date, understanding of the desired deviation whenever practicable.

(f) A central record of deviations, in- stantial interest, within a period of 1 cluding copies of requests, approvals, year subsequent to the termination of and disapprovals, will be maintained the individual's employment by DOL, by the Assistant Secretary for Admin only with the prior written approval istration and Management.

of the Assistant Secretary for Admin(36 FR 3054, Feb. 17, 1971, as amended at 42

istration and Management. FR 40198, Aug. 9, 1977)

[42 FR 40198, Aug. 9, 1977) Subpart 29-1.2-Definition of Terms $ 29-1.303 Approval signatures.

Contracting officers will personally $ 29-1.204 Head of the agency.

sign all contracts and modifications Where the FPR and the DOLPR

thereto. Duly authorized contracting refer to the "head of the agency” or

officer representatives for purposes of "agency head" as a level of approval,

administering and monitoring consuch a reference shall mean the Assist

tracts may sign contract correspondant Secretary for Administration and

ence while acting within the scope of Management.

the authority delegated to them. The signing of contractual instruments, in

cluding modifications, will not be acSubpart 29-1.3—General Policies

complished by facsimile stamps. § 29-1.302 Procurement sources.

$ 29-1.305 Specifications. 8 29-1.302–3 Contracts between the Gov- & 29-1.305-3 Deviations from Federal ernment and Government employees or

Specifications. business concerns substantially owned

Any deviation from a Federal specior controlled by Government employ.

fication contemplated under § 1-1.305ees.

3 of this title shall be submitted, prior (a) No contracts, including those for

to its use, for approval to the head of rental of real or personal property, the procuring activity who shall be the shall be let under the circumstances

designated official within the meaning set out in § 1-1.302-3(a) of this title, of § 1-1.305-3 of this title. The request except as provided in the FPR and

shall include a statement describing DOLPR. Nor shall contracts knowing

the deviation being requested together ly be entered into, subject to the same

with any justification and, where apexception, which will result in subcon

plicable, a recommendation for revitracts, regardless of tier, with employ- sion or amendment of the specificaees of the Government or business concerns or organizations which are substantially owned or controlled by $ 29-1.315 Use of liquidated damages proGovernment employees.

visions in procurement contracts. (b) Approval of a decision to grant an exception as provided from $ 29- $ 29-1.315-2 Policy. 1.302-3(a) shall be obtained, in writ (a) Determination as to the use of ing, from the Assistant Secretary for liquidated damages provisions in a Administration and Management by contract, and of the rate of such damthe head of the procuring activity. ages, is solely the responsibility of the

contracting officer. In making the de8 29-1.302-50 Contracts between the Gov.

termination, the contracting officer ernment and former Government em

shall obtain essential facts from the ployees.

requisitioning office and be guided by Negotiated contracts or grants or a strict application of the criteria set amendments to existing contracts or forth in § 1-1.315-2 of this title and by grants which constitute new procure the following general policies: ment (including those for the rental of (1) Liquidated damages provisions real or personal property) may be en- will not be used routinely in DOL contered into with former employees of tracts, but they may be used when DOL or with firms in which former failure to meet the completion or deemployees are known to have a sub- livery schedule will likely cause DOL to suffer substantial damages, the damages provision, deductions for liqamount of which is difficult or impos uidated damages should be made for sible to determine or prove.

the actual number of days of delay (2) Where the quantity of an item that have elapsed from the time of the being procured includes a number of scheduled delivery to the time the paritems the need for which is urgent, tial or progress payment was due to care shall be taken to have the liqui the contractor. dated damages provisions apply only (b) Any contract providing for liquito the urgently needed quantity. How- dated damages shall contain a maxiever, where rates are applied to quan- mum dollar limitation on contractor's tities or groups, assessment of dam total liability as a result of the liquiages will not be prorated for delay of dated damages clause, which limit partial quantities.

shall be appropriate for the circum(3) Liquidated damages provisions stances of the particular procurement. generally should not be used: (i) In In no event, however, shall such a contracts for supplies or services re- dollar limit exceed the total amount of quired for routine administrative pur- dollars the Government would have poses; (ii) in contracts for standard owed the contractor for full, complete, commercial or off-the-shelf” items; timely, and satisfactory performance. (iii) in any contract where time of per (c) When liquidated damages proviformance is not a primary factor; (iv) sions are used in a contract, the conin small purchases (under $10,000); (v) tracting officer is responsible for the in study, experimental, development, adequacy of documentation in the file or research contracts including equip showing why delivery is critical, the ment contracts requiring developmen nature of the damage that would be tal work; and (vi) where the delivery suffered by the Government if the schedule does not reflect the date the contractor failed to make delivery and item is actually needed but the date why the amount of such damages is the item is desired.

either impossible to ascertain or prove (4) A fixed formula, based on per- either at the time the contract is centage of value, shall not be used to awarded or within a reasonable time establish the rate of damages. Consid- thereafter. eration shall be given to the following (d) Where liquidated damage provifactors in establishing the rate of dam- sions are used, they shall be strictly ages: (i) The number of programs af enforced. In such cases where the confected; (ii) the importance of the item tractor's delay was clearly caused, at in relation to the program for which it least in part, by the Government is intended; (iii) the relative impor- which contributed, substantially if not tance of the program or programs in exclusively, to the contractor's delayed the overall mission of DOL; (iv) the delivery, the contracting officer shall reasonableness of the lead time for de- take such matters into consideration livery in the contract schedule; and (v) as well as any other legal excuse of any unusual damages that can be an the contractor and shall make findings ticipated.

appropriate to the situation. However, (5) Unless it is clear that partial de it shall be the contractor's responsibillivery will proportionately reduce the ity to give notice of delays in connecextent of probable damages, rates tion with any request for contract shall not be applied to individual units time extension or request for remisof an item, but rather to quantities of sion of damages, in whole or in part. an item or to groups of items which In either event, the request shall be are required for delivery or completion amply documented by the contractor. at the same time. Rates should gener. If it is determined that the liquidated ally be expressed in terms of even dol damages are applicable, the contractlars per day of delay per unit of the ing officer shall have no authority to quantity of units to which the clause waive any Government rights in the is applicable. When making partial or matter. This does not preclude the progress payments due anytime after contracting officer's initiating recomthe delivery date has passed for unde- mendations for remission of liquidated livered items covered by a 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)

8 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

$ 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.

« PreviousContinue »