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.

(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 2digit 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, DC 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.

Subpart 401.3-Agency
Acquisition Regulations

401.301 Policy.

(a) The Director, Office of Operations, subject to the authorities in 401.102 and FAR 1.301(c)(3), shall issue and publish in the FEDERAL REGISTER, as may be required, Departmental regulations to implement and supplement the FAR, that together with the FAR, constitute Department-wide policies, procedures, solicitation provisions, and contract clauses governing the contracting process or otherwise controlling the relationship between the Department (including any of its 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.

(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, Depart

ment-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;

(3) Distribution processes which assure timely receipt by all affected contracting offices; and

(4) Provisions for maintaining compliance with FAR 1.304.

(d) The Director, Office of Operations, is responsible for evaluating coverage under the AGAR System to determine applicability to other agencies and for recommending coverage to the FAR Secretariat for inclusion in the FAR.

(e) Recommendations for revision of existing FAR coverage or new FAR coverage shall be submitted by the HCA to the Director, Office of Operations, for further action.

401.370 Departmental directives.

Subject to the policies of FAR 1.3, the Department from time to time may issue internal directives of the following types to establish procedures, standards, guidance, or methods of performing duties, functions, or operations.

(a) Departmental Regulations (DR). Permanent directives signed by the Director, Office of Operations, to issue policies, authorities, and operating instructions.

(b) Departmental Notices (DN). Temporary directives signed by the Director, Office of Operations, to communicate policy or procedure which require immediate dissemination.

(c) Secretary's Memoranda. Temporary directives signed by the Secretary which establish major policy concerning missions and programs of the Department, direct initial or implementing action on these programs, or redi

rect or change policy or action in these

areas.

Subpart 401.4-Deviations From the FAR and AGAR

401.402 Policy.

(a) Requests for authority to deviate from the provisions of the FAR or the AGAR shall be submitted in writing as far in advance as the exigencies of the situation will permit. Each request for deviation shall contain the following:

(1) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR or AGAR;

(2) The reason why the deviation is considered necessary or would be in the best interest of the Government;

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

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

(5) A description of the intended effect of the deviation;

(6) A statement of the period of time for which the deviation is needed; and

(7) Any pertinent background information which will contribute to a full understanding of the desired deviation. 401.403 Individual deviations.

In individual cases, deviations from either the FAR or the AGAR will be authorized only when essential to effect a necessary acquisition or where special circumstances make such deviations clearly in the best interest of the Government. Except for cost principles, HCA's may approve individual deviations from the AGAR, after coordinating with the General Counsel and the Director, Office of Operations. No deviations from the FAR or AGAR may be authorized at the contracting office level. A copy of each deviation and its supporting documentation shall be provided to the Director, Office of Operations. Deviations involving cost principles contained in FAR Part 31 and Part 431, or any FAR deviation, shall not be made unless such action is authorized by the Director, Office of Operations, after consultation with the Office of General Counsel and any

other appropriate office, on the basis of a written justification stating clearly the special circumstances involved.

401.404 Class deviations.

Where deviations from the FAR or AGAR are considered necessary for classes of contracts, requests for authority to deviate shall be submitted in writing to the Director, Office of Operations, who will, after obtaining appropriate concurrences from other officials (e.g., General Counsel, and such other parties of interest), consider the submission, and in the case of FAR deviations, consider the submission jointly with the Chairperson of the Civilian Agency Acquisition Council. Where circumstances preclude obtaining prior concurrence of the Chairperson of the Civilian Agency Acquisition Council, the Procurement Executive may authorize the deviation and subsequently inform the Chairperson of the Civilian Agency Acquisition Council of the deviation including the circumstances under which it was required.

(a) The authority and responsibility vested in the Secretary to manage the Department's acquisition function is delegated through the Assistant Secretary for Administration to the Director, Office of Operations, who is the USDA Procurement Executive, pursuant to 7 CFR 2.76(a) (1) and (10). This broad authority includes, but is not limited to, the following responsibilities:

(1) Prescribing and publishing Departmental acquisition policies, regulations, and procedures.

(2) Taking any necessary actions consistent with policies, regulations, and procedures with respect to purchases, contracts, leases, and other transactions.

(3) Designating contracting officers. (4) Establishing clear lines of contracting authority.

(5) Evaluating and monitoring the performance of the Department's acquisition system.

(6) Managing and enhancing career development of the contracting work force.

(7) Participating in the development of Government-wide acquisition policies, regulations, and standards and determining specific areas where Government-wide performance standards should be established and applied. (8) Determining areas of Departmentunique standards and developing

unique Department-wide standards.

(9) Certifying to the Secretary that the acquistion system meets approved standards.

(b) The Director, Office of Operations, may delegate contracting authority to the Heads of Contracting Activities (HCA's) and the responsibility to manage their acquisition function. Delegations of authority for automatic data processing (ADP) equipment, services and related supplies are limited in accordance with Part 439.

[49 FR 12111, Mar. 28, 1984, as amended at 51 FR 34564, Sept. 29, 1986]

401.603 Selection, appointment, and termination of appointment.

401.603-1 General.

An HCA may delegate contracting authority to the extent authorized by the Procurement Executive in a general delegation of acquisition authority, by appointing qualified individuals as contracting officers, in accordance with the USDA Contracting Officer Warrant System, Departmental Regulation 5001-1. Contracts may be entered into and signed only by the Agency Head, HCA's, or other duly appointed contracting officers acting within the scope of their authority.

[51 FR 34564, Sept. 29, 1986]

401.670 Legal review and assistance.

Proposed acquisitions may be subject to legal review by the Office of the General Counsel in accordance with the procedures contained in Departmental Directives (5000 series).

[50 FR 14197, Apr. 10, 1985]

401.671 Ratification of unauthorized contract awards.

[51 FR 34565, Sept. 29, 1986]